켈젠에 있어서의 형식적 법치국가와 사회민주주의

Kelsen defines law as a special social technology in pursuing arbitrary social purposes, and sees legal order as a compulsory order in the sense of prescribing forced action as an effect of certain conditions from the standpoint of pure legal instrumentalism. And he asserts social democracy based on the formal constitutional state(Rechtsstaat) as a means to achieve any purpose and value relativism as a tool for democratic domination of people by stipulating law and state as a purposive rationality excluding value and meaning from them. The composition of these theories is somewhat constant relevance in terms of their development in response to the period situation of the time. But it conflicts with his theory that ideology, fact and causative consideration should be excluded because the law as a social technology is subject to formal and normative consideration. In other words, identifying the law as a social skill might has become too general in practice while overlooking it is defined by specific historical circumstances, and not generalizing law which eliminates changes according to the times and places. If so, his attempt to separate the law and state from the ideology and fact by using the neo-Kantian epistemology that the recognition method forms the object would also be unconvincing. This paper, in view of Kelsen’s technical understanding law as a compulsory measure attaining social purpose, examines and discusses the relevance of the law and state in relation to his theory advocating formal constitutional state, and further social democracy.