«Quando il contenuto minaccia di far saltare la forma». Etica e diritto nella Rechtslehre di Hans Kelsen

In this essay I would like to show how Kelsen’s formalism can be seen as an alternative to the rigid traditional dualism between formalism and anti-formalism and how, given this peculiarity, it can be defined as a “difficult formalism”. I will discuss that the attempt to purify legal science, with the aim of overcoming dualisms of Sollen between objective and subjective, public and private law, has the effect of eroding the exclusive assignment of a certain value to law, so that the prohibition to immunize subjective values corresponds to the obligation to subject them to public discussion and thus to the duty of allowing them to be falsified.