Metaphysics and Persons
Ideas of natural law are also excluded by Kelsen's rejection of 'metaphysics' in a strong sense, supposing something supra-human. He similarly rejects duplication in ideas of 'the state' as a supra-human entity - rather than a mere, fictional personification of the national legal order. His main target, in the 1930s, was fascist theories of state and law, such as that of Carl Schmitt. But, for Kelsen, it is also an illusion to think that, in a Rechtsstaat (roughly, 'rule of law state'), 'the state' is wholly subject to law: from a 'legal point of view', the state and the positive-legal order are the same. It is likewise an illusion to think of a 'legal person', whether relating in fact to a number of real people or to a single real individual, as anything other than a fictional personification of a bundle of norms that are rights and duties pertaining to such people. This is simply so, however, only in the 'pure part' of legal science. Kelsen is perfectly well aware that, in the empirical part, 'the state' will turn out to be a heavily armed real apparatus. One can make a similar extrapolation for the reality of legal persons, where corporate legal persons would turn out to be organisations and individual legal persons to have gender, class, ethnicity and so on.
Read more about this topic: Pure Theory Of Law
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