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Miguel Reale, Josef L. Kunz and the Search for an
Integral Philosophy of Law, 3 U. TOL. L. REV. 247
(1971).

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 JOSEF L. KUNZ AND THE
SEARCH FOR AN INTEGRAL
PHILOSOPHY OF LAWt
Miguel Reale*

The complex work of Josef L. Kunz was devoted especially

to the fields of the philosophy of law and international law, with
an admirable correlation between the two. It is representative of
one of the dominant tendencies in contemporary jurisprudence in
the sense of understanding juridical experience in its concreteness
without losing sight of the entire set of factors which operate in
the production of legal rules and their application.
This rejection of all forms of unilateral or sectional
comprehension of legal phenomena explains the relationship of
Josef L. Kunz to Hans Kelsen's Pure Theory of Law. Few have
understood as well as Kunz how to appreciate the real Kelsenian
contribution, knowing how to distinguish in it that which is
intrinsically valid within the realm of the science of law, even
abstracting its neo-Kantian presuppositions, from the clarifying
function which it has exercised with reference to the doctrinal
positions against which it was posed.
In effect, due to the logical structure of his theory, which
was rigorously articulated from its fundamental theses, Hans
Kelsen performed two complementary roles. On the one hand,
taking the theses of juridical normativism to their logical
consequences not only conferred more technical rigour to the
concept "rule of law," removing it from any identification with
some particular type of rule (legal, customary, or
jurisprudential), but demonstrated as well the systematic nature
inherent in juridical order. This provided one point of departure
for the renovation of Juridical Logic which, however, was to go
beyond Kelsen's position as the result of the natural effect the
new studies of symbolic logic were to have within the field of law.

t The Law Review is indebted to Professor F. G. Sturm of Western College for

Women, Oxford, Ohio for the translation of Professor Reale's article.
* B.S., University of Slo Paulo, 1930, Doctor of Laws, 1941; President, The
University of Sao Paulo, Brazil.
 TOLEDO LA W REVIEW [Vol. 1971

The other influence which has come from Kelsen, at least in

those countries which have developed according to the traditions
of Roman law as is the case on the European continent and in
Latin America, was of a reflex nature, so to speak, in the sense of
demanding on the part of its opponents a revision of their own
positions which led to a clearer articulation of their sociological
or ethical presuppositions. In the final analysis it can be said that
if Hans Kelsen, in his objective of launching the bases for a
"Pure Theory of Law," was not successful in winning to his
theses the majority of those who now work in the field of
jurisprudence, he did "purify" the theoretical realm, exercising
more influence than any other legal philosopher in our time on
the precise delimitation of tendencies or areas of research.
The most positive result of that cleansing or decantation of
the realm of theory was to establish the conditions necessary for
the development of juridical investigations based on more clearly
defined perspectives, falling generally into three basic groupings:
the first of a more logico-normative type; the second of a more
sociologico-historical character; and finally, the third of a more
ethical or axiological nature.'
It happens that Josef L. Kunz was one of the first, within the
old School of Vienna, to see that the great work which it had
accomplished in the area of the logical, technical and operational
values of law necessarily involved it in other tasks which were no
less essential. In that way he posed the problem of correlating or
integrating different research projects without losing the unity
which is necessary to all investigations of a positive scientific
nature.
Along that line of thinking I consider to be of great
importance a brief but incisive study published by Josef L. Kunz
in 1951 entitled: "Concerning the Problematic of Philosophy of
Law in the Mid-Twentieth Century.-2
There for the first time, so far as I know, the development of
juridical ideas was outlined over the course of the last century up
to the beginning of this one in terms of three principle

I. Cf M. REALE. TEORIA TRIDIMENSIONAL DO DIREITO, esp. ch. 2, at 37 ff. (Sifo

Paulo, 1968).
2. Cf. Kunz. Zur Problematik der Rechisphilosophie um die Mille des 20
Jahrhunderts in IV O.Z..R. I (1951). There is a Portuguese translation of that article
in 46 REVISTA DA FACULDADE DE DIREITO 43 (STo Paulo, 1952).
Fall-Winter] INTEGRAL PHILOSOPHY

movements, along with the observation that this did not deal
with a phenomenon peculiar to the law of Roman tradition, or to
"Common Law," but was in fact common to both of those
cultural areas. He placed the tradition of Analytical
Jurisprudence in correlation to that of European normativism
(the Schools of Exegesis and the commentators on the Pandects,
along with the School of Technical Jurisprudence which
culminated in Kelsen's Pure Theory through a process of
increasing formalization). In the second place, he related
Historicaland Sociological Jurisprudence to the movements in
the "old world" which, standing in the same tradition, had given
equal weight to law as socialfact. Finally, he saw the connections
existing between Ethical Jurisprudence and the so-called
"Renaissance of Natural Law," along with all the studies which
viewed the axiological foundation of law under the inspiration of
St. Thomas or of the neo-Kantian philosophers of Baden, with
Windelband and Rickert at the fore.
At the same time this preoccupation with undertaking a
comparative study of the process of ideas, comparing the two
basic regions of the West's legal culture, accentuates one of the
characteristics of Kunz's spirit which is his "sense of
universality." He knew enough to understand that the historical
development of universal law had been determined by the same
universal center of interests, despite the diversity of sources of
legal experience, thereby demonstrating the untenability of
doctrines which classify law into watertight compartments or
cultural areas. In this way it was confirmed that there was
substantial unity with respect to the central problems of
Philosophy of Law as such - or of "jurisprudence" in the sense
that the English and North Americans give to this term, 3 the
variety of solutions of a practical order notwithstanding which
result from the peculiarities of historical and social development
in both the Anglo-American community and on the European
continent and South America.
3. It can be said, putting the problem in terms of "'history of ideas," that there is
already constituted a genuine Comparative Philosophy of Law whose object is not the
study of the so-called universal concepts of the law, but rather is directed toward
inquiring into how such concepts are localized relative to each "social and historical
area" and, as a result, how they function on the concrete plane of distinct legal
experiences.
 TOLEDO LA W REVIEW [Vol. 1971

The most penetrating analysis of Kunz, however, was his

inquiry into the changes which were occurring in the first half of
the century for the purpose of locating the dominant tendencies
in the thought of our age. Along that line he saw vividly that the
urgency of a global or integrating comprehension of juridical
reality had become increasingly accentuated after the First
World War in such a way as to go beyond the sectional divisions
which had dominated the earlier period.
As a demonstration of that direction in contemporary
juridical thought Kunz once again preferred to place in
confrontation the theories of the two "juridical worlds" which
he knew through direct and personal experience, underscoring
essential points of convergence in now this and now some other
branch. In this way, despite the difference in philosophical
presuppositions (neo-Kantian in Europe; naturalistic or
pragmatic in the United States), it was possible to place within
the same tendency, for example, the works of Gustav Radbruch
and Emil Lask alongside those of Roscoe Pound and Julius
Stone; all tending toward the integration of axiological,
sociological and formal-technical perspectives in the field of the
law. In that way investigations proceeding in the light of
different philosophical systems, were viewed as coinciding in
their final outcome, which is truly significant as an expression of
the demands which are immanent within legal experience which
relates to those factors operating in post-war society.
It seems necessary to me, still with reference to that way of
putting the problem, to point out the position of Kunz vis-a-vis
two of his old Vienna comrades: Kelsen and Verdross. Kunz
knew how to say with great finesse about Hans Kelsen, who is
generally designated a "radical normativist," that the juridical
normativism of the mentor of "Pure Theory" was of a
methodological nature, being a consequence of an earlier
tripartition of research in which "juridical" quality was not
viewed as being conferred upon investigations of an ethical or
sociological type. Kunz, however, considered that this did not
mean Kelsen rejected or minimized the ethical values or the
sociological basis of law: merely that he considered them "meta-
juridical," or better, devoid of "juridical meaning" from the
operational viewpoint of the jurist, the lawyer, or the judge, each
being bound to an order with pre-established sanctions.
Fall-Winter] INTEGRAL PHILOSOPHY

According to Josef Kunz, one could speak of an implicit

trichotomy concerning Hans Kelsen.4
The thought of Kunz is linked more closely to that of Alfred
Verdross, the great internationalist, who came to the field of
philosophy of law while following those principles which are
inherent within the field of international law. In a study
dedicated to the "Philosophy of Law of Alfred Verdross, ' ' 5 he
shows how natural law, as it is accepted by that author, is
circumscribed within a global understanding of the juridical
problematic, which culminates in an integration of viewpoints
through a recognition of the "necessity of combining the three
directions, despite their great methodological differences, in
order to understand law in all its complexity." 6
Kunz also bases his concept of law on the overcoming of
Kantian formalism, recognizing as one of the characteristics of
our time the "return to ontology," the "return to teleology,"
and the "return to metaphysics," implying a critical attitude
which leads him to locate the problem of natural law as some-
thing which "exists and is obligatory within consciousness," but
which is not law in the sense in which this word is used when we
refer to positive juridical experience. Kunz's position on natural
law corresponds in the final analysis, as he himself declares, to
the position of Jean Dabin who refers to a "natural moral law." 7
I believe that it would be worthwhile, in order to illustrate
Kunz's thought with a view to a "composition of perspectives,"
4. Cf Kunz, supra note 2; see also Was ist die Reine Rechtslehre?, I O.Z.o.R. 3
(1948); Die definitive Formulierung der Reinen Rechtslehre, XI O.Z.o.R. 3 (1965). In
this study Kunz demonstrates above all else that the normativism of Kelsen implies a
"positive" consideration for the problematic of values which prevents him from being
included alongside Carnap and the logical positivists from whom ethical judgments
would be "devoid of significance" (meaningless), at 379.
Concerning Kelsen's position, it seems to me that it would be better to say that his
tridimensionalism is "negatively methodological" in the sense of ending with the
exclusion of juridical meaning as such from the axiological and sociological foci. Cf.M.
REALE, supra note I, at 33; and FILOSOF'A DO DIREITO 417 (5th ed. Sl'o Paulo, 1969).
5. Cf.Kunz. La Filosofia del Derecho de Alfredo Verdross in the journal DIANOIA
209 (Mexico, 1962).
6. Id. at 313. ABENDLAENDISCHE RECHTSPHILOSOPHIE. IHRE GRUNDLAGEN UND
HAuPvrPROBLEME IN STORISCHER SCHAU (Vienna, 1958). (There is a Spanish translation
by Mario de laCueva, Mexico, 1962).
7. Cf. Kunz. Jean Dabin et Hans Kelsen, reprint from the MELANGES EN
L'HONNEUR DE JEAN DABIN 168 (Paris, 1963).
 TOLEDO LA W REVIEW [Vol. 1971

to extract these affirmations of an autobiographical nature from

his study about Verdross:
"I always defended the opinion," he writes, "that there are
three branches of the philosophy of law, and that these branches
exist at the present time: the Analytical (which includes Pure
Juridical Theory); the Sociological; and the Axiological
(Natural Law). The Analytical School is of major importance
for the judge, the lawyer, and the theoretical jurist. It conceives
law as a norm, or as a system of norms, from an analytical,
theoretical, formal, and constructive point of view. The
Sociological focuses on law as a causal science. It examines the
creation of law more than the law itself, and this is naturally an
historical, social and political fact. It belongs to the realm of
being, whereas the norms created in such a process are placed
within the realm of the ought-to-be. Sociological philosophy also
considers the effectiveness of the law, and here it deals with
causal investigations as well. Axiological legal philosophy, on
the other hand, criticizes the law and takes a series of extra-
juridical norms as part of that critical task: natural law is not
law, but rather ethics." '
Those words describe well that which I call "abstract
tridimensionalism," characterized by the combination of three
kinds of study (the philosophical, the sociological, and the
analytical or technically legal) in which all are considered to be
necessary in order to provide a full comprehension of the
juridical phenomenon.
I think, however, that despite having to recognize the great
contribution made by that doctrinal system, it has become
necessary to go beyond it in order to introduce a result of the
studies of such people as Wilhelm Sauer, Recasens-Siches and
Jerome Hall. This result is consonant with the system and has
been the dominant theme of my basic works,' viz. that law is
tridimensional in its very structure in such a way that the jurist
- as a jurist - cannot content himself with merely the logico-
normative aspects of law (concrete tridimensionalism).
It should not be thought that in my view the jurist, lawyer or
judge should act as a philosopher or a sociologist in the task of

8. Kunz, supra note 5, at 213.

9. In addition to those already cited above, see M. REALE. DiREITO COMO
EXPERINCIA (Slo Paulo, 1968).
Fall-Winter] INTEGRAL PHILOSOPHY

interpreting and applying "rules of law" in which he is

exercising his function within the realm of positive science. The
problem, prior to that situation which is accessory or extrinsic,
so to speak, is seeing that the "rule of law" by itself cannot be
viewed as a simple logical given. In addition to the logico-formal
aspect, and inseparable from it, it is indispensable to have on
hand as well the "complex of facts" and the "complex of
values" which constitute the cause and the content of that which
is enunciated in the normative proposition.
When it is said that the regulajurisreduces itself in the final
analysis to the hypothetical declaration "If A is, B ought to be,"
there are three questions to consider in a complementary way:
a) the nature of the normative proposition as a logical
connection which binds A to B just as each proposition in the system
of the legal order which is in force is correlated;
b) that which A stands for as social reality, including a
knowledge of how and up to what point B will have real effectiveness;
c) the axiological reason by which it is affirmed that B ought to
be.
To sum it up, the "rule of law" does not reduce itself to a
logical given, and in the same way "'juridical logic" (however
much this is expanded even to the point of becoming Juridical
Deontology) cannot be confused with the science of law. The
juridical rule, in its concrete expression, is inseparable from the
facts from which it takes its origin, as well as from the facts
which it is destined to govern; just as it is inseparable from the
"'axiologicalreasons" which in light of the facts determined that
it be considered as something obligatory from the viewpoint of
the law.
If the ought-to-be of law is not merely a logicalought-to-be,
I think that it is necessary to resolve the still dominant ambiguity
of conferring a philosophical nature on any relative enquiry into
the axiological content of the rule of law. Perhaps the tendency
to convert any investigation about "juridical evaluation" into a
philosophical study is due to the persistent idea of a natural law,
distinct from and superior to positive law. The study of the
"values of law" as such, is really one thing - a task of
philosophical nature, and the positive analysis of how "juridical
evaluations" originate and become operative on the concrete
plane of juridical experience, whether at the moment in which the
 TOLEDO LAW REVIEW [Vol. 1971

lawyer makes, let us say, the "normative diagnosis of the fact"

in order to propose an act of judgment, or at the moment in
which the judge weighs and handles that normative diagnosis,
evaluating the facts which were brought out in the course of the
legal proceedings and the motives which guided the conduct of
the litigant and of the prisoner at the bar, is another thing.
This is the reason why I usually say that every rule of law is
a dialectical synthesis of facts and values, a synthesis of that
which is and that which ought to be. Josef L. Kunz, moreover,
was the first philosopher of law to point out my affirmation that
"kann das Recht nur als eine Synthese von Sein und Sollen
verstehen. "10
Note, however, that the recognition of the "tridimensional
structure" of law is neither an end in itself nor a point of arrival
in the study of juridical experience, as some are led to think, but
rather a point of departure, a methodological base which allows
one to understand that experience in all its concreteness.
It was in the application of that which Josef L. Kunz
generously called the "Reale formula" ("dass das Recht aus
Normen bestehe, deren Verstandnis nicht miglich sei, ohne ihren
sozialen Zusammenhang und die in ihnen realisierten Werte zu
sehen")," that my tridimensionalism began to evolve in the sense
of converting the concept of "juridical experience" into the
central concept of the science of law. The concept of law as
experience, whose roots go back to memorable pages by Oliver
Wendell Holmes, began to take on new features with the recent
studies of social structures, according to which law came to be
seen as an organic conjunction of "normative structures," or as
a "system of models," as I try to point out in my latest writings.
The application of the concepts of "structure" and "model" in
the realm of law is due to a variety of reasons, since they help
to explain the juridical solutions which are appropriate to a

10. Kunz, supra note 2, at 13. Note that this recognition was made with much
acumen by Kunz in 1951, in FILOSOFIA DO DIREITO (Ist ed. 1953), where the topic was
developed further. The illustrious professor based it on the as yet brief articulations in my
books FUNDAMENTOS DO DIREITO and TEORIA DO DIREITO E DO ESTADO, both dating
from 1940. This reveals his penetrating ability as an historian of ideas.
See also J. KUNZ, LATIN-AMERICAN PHILOSOPHY OF LAW IN THE TWENTIETH
CENTURY 30 (1950) and Latin-A merikanische Rechisphilosophie irnZwanzigsten
Jahrhundert,39 ARCHIV FUR RECHTS-UND SOZIALPHILOSOPHIE 2 (195 1).
I1. Kunz, supra note 2, at 13.
 Fall-Winter] INTEGRAL PHILOSOPHY

state which interferes more and more in all areas of social life in
accordance with "plans of action" which are rationally worked
out, even in countries with democratic governments. The
politics of planning accentuates the note of prefiguration or
predetermination of normative schemes to such an extent that
the concept "juridical model," formulated as a function of
social experience infieri, appears to give a more adequate answer
to a series of questions which previously were resolved in terms of
"sources of law."'12
Underneath it all, what is desired is to overcome all forms of
unilateral understanding of juridical reality, and to proceed in
the direction of the humanization or socialization of law, thanks
to the "sense of integration of perspectives" constructed by
philosophers of law such as Josef L. Kunz.
I think it can be said, in conclusion, that the entire work of
Josef L. Kunz, rising out of a critical appreciation of the Pure
Theory of Hans Kelsen and recognizing its insufficiency, but
without abandoning his contribution in what is referred to as the
rigour of his logico-formal systematizing, represents, as Kunz
himself puts it, a growing effort in the direction of attaining an
"integral" philosophy of law in which law can be captured in all
its wholeness and complexity. 3

12. Concerning all these topics, see M. REALE, supra note 9; and Pourune theorie
des modIes juridiques, a paper presented to the 14th INTERNATIONAL CONGRESS OF
PHILOSOPHY IN 'VIENNA in 1968.
13. ". .. zur Erkenntnis eines Pluralismus der Naturrechte und zur Einsicht von
der Notwendigkeit einer "integralen" Rechisphilosophie, urn das Recht in seiner
Totalitdit urn Komplexi idt ganz zu erfassen." Pluralismus der Naturrecht und
Vdlkerrecht VI O.Z.6.R. 186 (1954).