Wie unterscheiden sich Alexy und Kelsen? – Über die Bedeutung der Perspektivenwahl in der Rechtswissenschaft

The non-positivist Robert Alexy recognizes that the legal positivism is principally correct from the observer’s perspective. The legal positivist Hans Kelsen takes this perspective. They agree on this point. Their minds separate, however, when they are asked about the meaning of the participant’s perspective for the legal science. While Kelsen denies it clearly, Alexy takes the participant’s perspective to be necessary for the recognition of law, because the claim to correctness which law always lays can be understood only with this perspective. Kelsen tries to grasp the normativity of law with the famous “basic norm”, but he admits at the same time that one need not necessarily presuppose it. Horst Dreier realizes that Kelsen’s basic norm implies that the validity of law is dependent on the “existentialistic” decisions of individuals. With this in mind, Kelsen’s legal theory draws closer to the participant’s perspective of Alexy. I do not think, however, that Dreier correctly explains the role of the basic norm in the legal science. I resort to Joseph Raz, who introduces “a hypothetical point of view” for the scientific observation of law. Then we face the last question: if the legal science may be satisfied with such a hypothetical perspective or it needs the participant’s perspective, as Alexy claims. He claims so because he recognizes the moral value of the positive law. Kelsen does not think so, therefore he cannot tolerate the legal science participating in the legal practice. I find Alexy more persuasive. The legal system of modern states is worth supporting. His directly moral legitimation of law should be corrected, however. I explain this point with the help of the legal philosophy of Jurgen Habermas .