Abstract

There is a longstanding and sometimes intimate historical and conceptual relationship between theology and law. In the twentieth century, the continued existence of such a conceptual relationship has been defended by Carl Schmitt and Claude Lefort. The legal theory of Hans Kelsen can be described as an attempt to overcome this conceptual relationship and to emancipate constitutional law from theology. Kelsen is of the opinion that law, if it is to be binding at all, has to correspond to fundamental principles of logic: the foundation for the obligatory character of the law itself is to be found in a Basic Norm, which brings unity and finity to the system of legal norms. This article argues that Kelsens attempt to explain the obligatory character of legal norms through logic must fail as an attempt to overcome this dependence of law and legal theory on theology: logic, even in Kelsens system of law, remains transcendent vis-à-vis the law and transcendence is in Kelsens own opinion a theological structure of thought