Abstract

In the late 1930 s Hans Kelsen supplemented his Pure Theory of law with an evolutionist model of human social institutions, identifying what he considered to be the minimum content of a legal order and the attributes of the earliest legal orders. He argued that more rational alternatives necessarily developed through social evolution, but that the unevenness of the process allowed the survival of relics of earlier rational legal orders. Among these evolutionary relics were the ideology of retributivism and perhaps the practice of retribution. Kelsen made numerous attempts to integrate this insight into the Pure Theory, without success; this in turn may help explain both his abandonment of the evolutionist model in the 1940 s and his radical revision of the Pure Theory in the 1960 s.