First, the author examines the traditional doctrine of imputation. A look at the traditional doctrine is useful for establishing a point of departure in comparing Kelsen's doctrines of central and peripheral imputation. Second, the author turns to central imputation. Here Kelsen's doctrine follows the traditional doctrine in attributing liability or responsibility to the subject. Kelsen's legal subject, however, has been depersonalized and thus requires radical qualification. Third, the author takes up peripheral imputation, which is the main focus of the paper. (...) It is argued that with respect to the basic form of the law, exhibited by the linking of legal condition with legal consequence, peripheral imputation counts as an austere doctrine, shorn as it is of all references to legal personality or the legal subject. If Kelsen's reconstructed legal norms are empowerments, then the austere doctrine of peripheral imputation captures the rudiments of their form, exactly what would be expected if peripheral imputation does indeed serve as the category of legal cognition. Finally, the author develops the puzzle surrounding the legal “ought” in this context. Although Kelsen talks at one point as though the legal “ought” were the peculiarly legal category, the author submits that this is not the best reading of Kelsen's texts. (shrink)

This chapter first considers the most important of Kelsen's own express statements of a connection between his legal theory and the philosophy of Cohen. It then argues that Cohen's interpretations of Kant as well as his own ‘System of Philosophy’ actually differ profoundly from the historical Kant, thus showing the key theorem of Cohen's system to be not Kantian in origin but Platonic. Finally, the chapter considers the centrepiece of Kelsen's theory, the doctrine of the basic norm. It shows that (...) Kelsen's solution to the problem of establishing legal validity by appeal to the basic norm represents a direct application of the key theorem of Cohen's system, and that this theorem offers one plausible possibility — albeit not the only one — for the problem of validity on the basis of a concept of law that refers neither to natural law nor to any metajuridical source. (shrink)