Critical Study of Separation of Law and Morality in Hans Kelsen’s Theory of Obligation

Kelsen’s effort to deliver a normative positivism (thesis of normativity) leads to a theory of legal obligation which is moral in nature i.e., it provides us with norms which refer to a rational necessitation of an action. But, the purity of the theory demands the separation of morality from law (thesis of separation). Therefore, confliction between the two above mentioned theses is inevitable. Kelsen tries to reconcile them by proposing three solutions: restriction of presupposition of basic norm to effective legal systems, moral relativism, and descriptive nature of legal propositions. These solutions include three claims about the Differentiation of basic norm from moral norms: moral formalism, moral neutralism and exclusion of positive invalidity. But critics argue that the solutions suffer from derivation of “ought” from “is”, rejection of possibility of conflict between moral and legal norms, insufficiency of moral relativism for proving Kelsen’s theory as an only alternative of natural law and traditional positivism and tendency of theory to regarding legal norms as imperative. To avoid these problems, Kelsen substitutes the traditional theory with the empowerment theory. The new one could reconcile the normativity of law with the thesis of separation, but its inability to explanation of legal obligation convinced Kelsen to give up his new-Kantian believes and join to voluntarism.