Abstract
This is a comment by the translator on the translation of Hans Kelsen’s ‘On the Theory of Juridic Fictions. With special consideration of Vaihinger’s Philosophy of the As-If’ (Chap. 1).
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Notes
- 1.
Being a commentary on Kelsen’s essay, this is not the place to discuss Vaihinger’s work in any detail. It has to suffice to say that it is a surprisingly erudite work, rich in detail which mainly suffers from a repetitive urge to subsume everything under the construct of the fiction and to claim that all problems of philosophy can be solved thereby. Vaihinger is convinced the fiction is the key to a mediation between the actual and the ideal, a mediation which he calls “idealistic positivism” and which turns out to be a thoroughly un-dialectical assemblage of disparate and incompatible elements. He is drawn to the fiction because in it he believes to have found a construct that allows us to continue to talk about the phantasies and dreamt up concepts we hold so dearly, yet still remain devoted to cognition of the actual world. It is thus a theory which promises to allow us to eat the cake, yet at the same time have it. Philosophically Vaihinger’s work is a combination of voluntarism, naturalism, Nietzscheanism, pragmatism and a reading of Kant along the lines of pragmatism.
- 2.
On the misunderstood role of the Basic Norm, see Jestaedt 2013.
- 3.
Vaihinger actually ends up arguing that nearly every concept is a fiction. In the 800 pages of his work there seems to be no linguistic construct which he thinks would not benefit from being understood as a fiction. After all he says that every abstract and every general term is a fiction. Now, since every term, even an indexical, has an element of generality, according to Vaihinger every term must have a fictional element. This, however, is clearly proving too much as this generality robs fictions of any explanatory power.
- 4.
Vaihinger (1924, p. 97).
- 5.
Vaihinger (1924, p. 33).
- 6.
Vaihinger (1924, p. 35).
- 7.
Merkl (1918).
- 8.
See Kelsen, Chap. 1 above, p. 16.
- 9.
See Kelsen, Chap. 1 above, p. 13.
- 10.
For a discussion of Kelsen’s treatment of legal persons see Paulson (1998). It is unfortunate that Paulson does not refer to Kelsen’s fiction paper.
- 11.
See Kelsen, Chap. 1 above, p. 17.
- 12.
The relation here is the relation of simple implication: (1) → (2) making (2) a necessary but not a sufficient condition of (1).
- 13.
See Kelsen, Chap. 1 above, p. 18.
- 14.
See Kelsen, Chap. 1 above, p. 19.
References
Hans Kelsen. 2014. On the theory of juridic fictions. With special consideration of Vaihinger’s Philosophy of the as-if. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and William Twining. Dordrecht: Springer.
Jestaedt, Matthias. 2013. Geltung des systems und Geltung im system. Wozu man die Grundnorm benötigt—und wozu nicht. Juristen Zeitung 21:1009–1021.
Merkl, Adolf. 1918. Das doppelte Rechtsantlitz. Juristische Blätter 57:425–427.
Paulson, Stanley L. 1998. Two problems in Hans Kelsen’s legal philosophy. In Pragmatism, reason and norms. A realistic assessment, ed. Kenneth R. Westphal, 219–242. New York: Fordham University Press.
Vaihinger, Hans. 1924. The philosophy of ‘As-If’. A system of the theoretical, practical and religious fictions of mankind. Trans. C. K. Ogden. London: Routledge and Kegan Paul.
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Kletzer, C. (2015). Kelsen on Vaihinger. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_2
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