Chapter 5 Modern positivism: Kelsen’s Pure Theory of Law
- Kelsen credited with drafting the Austrian Constitution after WW1
- In the early positivist writings, of Bentham and Austin, the crucial ingredient of law is coercive and imperative. Ehrlich criticizes the idea of coercion as a crucial ingredient arguing that such view is unrealistic. He says that man voluntarily performs the duties before him because of the many legal relations and things that men do or don’t do as a legal duty is quite different from the rule that is obeyed because of compulsion. He downplays the coercive nature of law and the real effects of legal provisions.
- He says there are 3 elements that must be excluded from the concept of law as compulsory for order in a state:
o Being created by the state
o That it constitutes the basis of the decisions of the courts
o Nor that it be the basis of a legal compulsion consequent upon such a decision (some legal consequence that happens because of a decision)
- Kelsen, in response, says that the ‘result of Ehrlich’s attempt of trying to get a def. of law without the element of coercion is the def: law is an ordering of human behaviour. This is a definition of society, not of law.’ He says that there is confusion b/w what society is and what law is because Ehrlich writes sociologically. Kelsen puts notion of coercion back into center stage of law.
- Kelsen seeks to identify what is legal in social life. This was in reaction against a tendency in legal study to incorporate writings from different disciplines without considering what made them different and how. He called this tendency syncretism.
- He didn’t deny that law has effects nor that concepts of what was good or bad could influence the content of particular legal systems but this did not mean that law was a continuation of another activity (e.g. politics).
- Kelsen, applying Kant, sought to identify law, as a particular kind of knowledge. Identifying what this knowledge is would avoid confusion. One could then study the relationships between law and other fields (e.g. morals and science) without losing sight of what was different.
- Austin’s theory, which attempts to identify law with the commands of the sovereign backed by sanctions, suggests that int. law is ‘not law properly so called’. Hart, who seeks to identify a legal system with the union of primary and secondary rules, particularly a rule of recognition, which identifies what may count as a law within that system, sees int. law as analogous to custom.
- Kelsen, who sees law as a particular type of normative knowledge, has no prob in seeing int. law as law. Other theorists do not identify these features with law because such theories are a result of non-law reasoning (impure).
- Identification of law with sovereign states is an unnecessary addition to what is necessary to be legal. By insisting that institutions associated with nation states are the only approved basis for law means that it undermines the possibility that state actions can be assessed for their legality. But if legality lies in a form of knowledge and not in state action then there is still the possibility that the actions of state officials can be declared as illegal.
- His theory also leads the possibility for exploring the potential of int. law
- Laski describes Kelsen’s pure theory as ‘an exercise in logic, not life’. This criticism possibly comes because Kelsen’s approach is rooted in Kant who believed that we cannot organize any body of knowledge without already ‘knowing’ things (things that can be experienced or proved). Within Kelsen’s theory this leads him to discuss law’s logico-meaningful existence, and to locate its validity in a transcendental-logical presupposition which he calls the ‘grundnorm’ or basic norm
- The elements of knowledge
- ‘A legal order may be characterized as a coercive order, even though not all its norms stipulate coercive acts…such norms are dependent norms, valid only in connection with other norms that do stipulate coercive acts [such norms may not coerce but authorize the creation of other norms]’
- ‘Law is the primary norm which stipulates the sanction’
- Function of a norm:
- A norm functions as a ‘measure of human action’ and ‘as a scheme of interpretation’. A legal norm is the thing that allows us to give objective meaning to human action. Human action will always have subjective meaning (kill someone for your reason) but there is also an objective meaning that can be attributed to such action. If there is a norm saying one ought not to kill then measuring one’s action against that norm produces the objective conclusion that one has acted immorally/illegally (unless such an action is justified)
- Where there is a norm there is objective meaning but without norms there is only subj meaning. The obj meaning there is no consideration of psychology avoiding syncretism
- What are norms?
- Norms are ought propositions. It can take many forms, where certain behavior is ‘commanded, permitted or authorized’ or what one should, may, or can do.
- Subj meaning can be explored through forms of explanations and understanding
- A norm is not the effect of any causes in the natural world. Rather a norm cannot exist independently of other norms. So to say one ought not to kill begs q why. Answer would be because you ought to obey God or the law and either of these sources have told (commanded) you not to kill.
- Norms are related to other norms by ‘imputation’. It is within its own system keeping it separate from other sciences.
- Norms cannot exist objectively without other norms. ‘An isolated act cannot be regarded as a legal act, its meaning cannot be regarded as a legal norm, because law, is not a single norm, but a system of norms.’ This means that there is a constant regression both forwards and backwards from norms to norms. Kelsen sees the ‘concretisation’ and individuation (working forwards) of norms, as imputing the application of primary norms. Imputation is a normative relation (if a is then b ought to be). Causal relationship is ‘if a is, then b is’.
- Most concrete norms that don’t command, permit or authorize other norms but still allows one to objectively measure human behavior are called primary norms
- They can take different forms according to different normative orders. In a moral normative order primary norms are commands that tell people what they ought and ought not to do; they describe duties that relate to ‘internal behaviour’. They don’t operate through authorizing an official (external behavior) to exercise coercion, which doesn’t mean that they don’t need to rely on coercion.
- Kelsen believes that all norms rely on coercive power. But type of coercion associated with a moral normative order is a transcendental power (psychic) rather than physical or a socially imminent power.
- ‘fundamental difference b/w law and morals is: law is a coercive order, that is, a normative order that attempts to bring about a certain behaviour by attaching to the opposite behaviour a socially organized coercive act; whereas morals is a social order without such sanctions’
- Sanctions or moral order are merely approval/disapproval.
- Moral normative order is a transcendental power but legal normative order is physical power. It talks about actual things.
- Kind of coercive power associated with legal normative order is physical power. Primary legal norms, the concretised norms of legal normative order are commands, permissions or authorizations to officials to exercise coercion.
- Legal norms are effectively normative directions to officials to coerce. Enforcement of that form of coercion might require sanction of crt official, use of state’s monopoly of force. Law designates circumstances by which officials ‘ought’ objectively to coerce. Moral norms are duty imposing to everyone that objectively validates individual duties; no such individual duties are intrinsic in law. No concept of legal obligation to citizens, or such a concept is secondary (may be inferred from primary norm or proposed as dependent norm). It is something that is taken from the primary norm as a natural consequence, but not explicitly stated (so if a prison officer imprisons D for acting in contravention of criminal code then it can be deduced that the person ought not to have done the particular act).
- A duty not to do something is a precondition to the operation of legal normative orders. ‘The sanction is the consequence of the delict; the delict is the condition of the sanction.’ Here the delict doesn’t refer to the wrong itself, mala in se, but only a wrong prohibited, mala prohibit (this is because it refers to a specific sanction): ‘The human behaviour against which the coercive act is directed is to be considered as prohibited, illegal- as a delict.’
- Beyond those preconditions (remember they are inferred from primary norms, not actually stated) lies law: legal normative orders are coercive orders in which law is the primary norm which states a sanction (this is why delicts are necessary, because they are not stipulated in the primary norm)
- Hart has criticized Kelsen’s def. of ‘delict’. He argues that it fails to distinguish b/w a fine and a tax and other criticisms become more apparent.
- Hart: ‘sanctions may take the form of compulsory money payments e.g. fines; but taxes also take this form. In both cases certain behaviour of the subject is a condition under which an official of the system ought to demand a payment’ if you look at ‘if A then B ought to be’ ‘it is impossible to distinguish a criminal law punishing behaviour from a fine from a revenue tax.’ These two cant be differentiated when considering them from a Kelsenian view. ‘Both cases are therefore cases of delict unless we distinguish b/w them by reference to something that escapes the canonical form, i.e. that the fine is the punishment for an activity officially condemned and the tax is not.’ Could argue that a tax is not a true ‘sanction’ and this is what delicts refer to but this only defers the difficulty. ‘Presumably it is a sanction when it is intended or assumed to be a punishment to discourage ‘socially undesired behaviour’ to which it is attached; but this is precisely the element which Kelsen considers to be excluded from the definition of delict.’
- Kelsen’s def. only works on the assumption that the behaviour, which is the condition of the sanction, is considered detrimental to society. This restricts the def. and makes it confusing. Possible to doubt whether the def of a legal norm (which depends on the def of a sanction which is itself not clear) conforms to the strict requirements of juristic def. Kelsen says that the norm ‘is the expression of the idea that something ought to occur, esp. that an individual ought to behave in a certain way.’ Even though a norm may be an expression of an idea it isn’t clear that ‘an expression’ or ‘an idea’ or ‘an expression of an idea’ are contents or elements of the norm or fit any other description given by Kelsen of what may be used in a strictly juristic def.
- Elemental Knowledge
- A Chain of Validity of Legal Norms
A Basic norm (Grundnorm)- a Presupposition
The Historically first Constitution
The ‘Reigning’ Constitution
Acts of P- Customs- Precedents
Primary (Concretised/Individuated) Norms
(E.g. Court Order Commanding, Permitting and Authorising Coercive Acts)
- If the concretisation and individuation of legal norms can be found in primary coercive norms what, working backwards, about the most general or highest legal norm? As already stated cause and effect leads to infinite regression, does the same apply to all forms of knowledge? Moral norms are traceable to moral assumptions, which are unprovable and thus neither scientific nor objective.
- If we say one ought not to kill because it says so in the Bible, and we ought to obey the Bible because it contains God’s law, then why ought we obey God? If u can find normative propositions that give an objective account for why one ought to obey God, then you must ask the next normative q in that regression until no more. If not then all you have is a normative statement, one ought to obey God but how can this be said to be an obj statement. How can it function to enable obj validity to be given to all the other measures within the normative order? (If the ‘top’ norm is not obj)
- If you try to rely on a factual basis for the highest norm then you are liable to be criticized for being illogical, for determining what ought to be from what is.
- The Kant/Kelsen critique is: ‘so far as nature is concerned experience supplies the rules and is the source of truth, in respect of the moral law it is the mother of illusion. Nothing is more [wrong] than to derive the laws prescribing what ought to be done from what is done, or to impose on them the limits by which the latter is circumscribed.’ Can also be accused of starting with something that is an effect of a cause and so may still be on the route of infinite regression. But if you do actually start with a highest normative proposition then its obj validity is questioned, as it appears to be nothing more than an assumption, even if it is a matter of fact, everyone agreed with it.
- Everyone agrees with the description of people’s views but this says little on whether they are good or bad, or have an obj meaning.
- At a certain stage of generalization coming from the concretized primary norm, one reaches the point in one’s knowledge where one can go no further. This leaves a prob for a purely moral normative order. Difficult to find such a norm that is consistent and determined by other identified norms. To find such a norm all the others must be non-contradictory and capable of deductive and inductive inference (not possible with legal norms). Kant gives the maxim: ‘Act only according to the maxim by which you can at the same time will that it should become a universal law’ from this particular maxims might follow deductively, as a matter of consistently. (E.g. love thy neighbour as thyself- it follows that one ought not to kill others, but befriend others). From the other end, one could work upwards. If you [ought to] ‘love thy neighbour’ is a norm in a moral system, what general norm could in turn authorize it?
- Answer (inductive): act as if all your actions were a universal law, applicable to others as well as yourself. Working downwards one is only committed to deductive consistency. Working up is more problematic because there is more than one general norm can validate the norm below it. Despite this it is possible to claim that what objectively validates any group of dependent norms that can be gathered together from the primary norms is a presupposed most general norm (top one). That general norm has a unity in its content with all the norms of the system.
- Legal systems, and some moral orders, have a dynamic as well as a static quality. With static normative orders, reasoning deductively requires one to consider the content of the norm, and what can be derived logically form the content (love thy neighbor includes don’t torture thy neighbor). ‘The norms of the order of the first type [static] are valid on the strength of their content: because their validity can be traced back to a norm under whose content the content of the norms in q can be subsumed as a particular under the general.’ Although in the example given, the lower norms flow from higher norms as deductions from their general content, such a description does not, for Kelsen, ground the validity of the general norm (just because something flows from higher norm this alone does not give the general norm validity)
- With a dynamic legal order the validity of a norm doesn’t just depend on the content. E.g if a moral order is based on the duty to obey God, and God can issue new commands or commandments, then moral duties are not simply a q of the relationship b/w the new and old commands. That one ought to obey God validates whatever God commands (dynamic). That one ought ‘to love thy neighbor as thyself’ does not permit you to ignore your neighbor cries for help (static), even though your God might permit you to do so.
- Dynamic normative orders are relevant to legal orders. Here the most general normative proposition consistent with the system of norms is that one ought to obey the ‘historically first constitution’. Such a proposition is consistent with a system that is characterized by authorizing many officials to make, change, or determine what norms to apply, and ultimately authorise primary norms.
- Thus the grundnorm of legal normative orders is exactly that, a ‘transcendental logical presupposition’ giving objective meaning to the ‘historically first constitution’. Proposes one ought to obey this constitution, this is its obj measure. Or as Kelsen says: ‘the subj meaning of the acts by which legal norms are created can be interpreted as their obj meaning only if we presuppose in our juristic thinking, the norm: ‘One ought to obey the prescriptions of the first constitution.’’
- Going beyond legal norms lies the grundnorm, as a foundation for legal knowledge it is presupposed, as a matter of necessity, it must be presupposed. It doesn’t depend on its own normative validity on a higher norm; it must have a different character from all the other norms in the system. The diff is that it is the meaning of an act of thinking, rather than, with other norms, the obj meaning of an act of will.
- Here lies diff with Kelsen’s grundnorm and Hart’s rule of recognition- Rule of rec is a fact and one that is available to be described. The grundnorm, rather than having an existence in fact, is the meaning of an act of thinking, and one that is only available to be conceived.
- A legal grundnorm has only a dynamic, and not a static, quality (obey first constitution). This means that the q of whether legal systems can exist without NL elements is an empirical q that the theory is incapable of answering.
- If as a matter of act diff people give diff reasons for obeying constitution, inc non-moral ones, the notion of grundnorm captures the implications of this: legal thinking is possible without agreement on the basis of the normativity of the constitution. It only requires everyone involved in legal thinking to presuppose that the constitution is valid.
- Weighing the Elementnormativity, s- Raz
- Kelsen’s theory is doubly pure:
o free from sociological considerations
o Separates law and morality.
- First purity criticized- content of law cannot be established without regard to the actions and intentions of legal institutions. Secondly, the law and its significance cannot be appreciated unless one studies its social context, with the emphasis on its effects in practice
- It is part of legal philosophy to explain the methods by which the existence and content of law are established. To do this you have to look at the attitudes of legal institutions. If this is true then first objection is valid.
- Kelsen didn’t deny possibility of sociological jurisprudence and he gave 4 theses:
o Besides sociological jurisprudence there is independent enquiry, normative jurisprudence, whose subject is different. Normative juris is the study of legal norms (how people ought to behave according to law). Not enquiry into how they actually behave.
o Normative juris is no less empirical than sociological jurisprudence, since it is concerned exclusively with positive law (law as a product of the activity of social custom of legislative and adjudicative institutions)
o Norm juris has logical priority over sociological jurisprudence (latter assumes an understanding of law as provided by the normative study. ‘Law’ must be normatively interpreted)
o Norm juris also takes priority because sociology relating to law has to take account of the way people’s beliefs about the law, normatively understood, affect their behaviour.
- Kelsen’s theory also supposed to be free of moral elements (against NLT)
- 3 theses associated with legal positivism:
o Reductive semantic thesis-proposes a reductive analysis of legal statements according to which they are non-normative, descriptive statements of some kind
o Contingent connection thesis- no necessary connection b/w law and moral values
o Sources thesis-claims that the identification of the existence and content of law doesn’t require one to resort to moral argument
- These theses are independent. Kelsen rejects the reductive semantic thesis and takes on the contingent connection and the sources theses. He regards law as positive law. It’s based on social sources without any references to moral arguments. The existence of a legal system depends on the efficacy of the society in q. to see whether a rule belongs to a legal system is a matter of social fact and whether it can be traced to an authorized social source.
- On the contingent thesis Kelsen insists that to claim there is a necessary connection b/w (content of) law and morals presupposes absolute moral values to which law conforms. Further argues that there are no absolute moral values and there is no content common to all relativistic moralities. Hence there is no necessary connection b/w law and morals.
- Kelsen departs from the traditional positivist view in his rejection of the semantic reductive thesis. Reductive positivists argued that legal statements are statements about commands, or predictions of the likelihood of sanctions or of court decisions. Kelsen rejects reductive analyses of legal statements. He holds that ‘a norm is ‘valid’ means that is binding- that an individual ought to believe in the manner determined by the norm.’ Kelsen regards legal statements as fully normative statements
- This is difficult to reconcile with his acceptance of the sources and the contingent connection theses, which leads him to say at the same time ‘juristic value judgments are judgments which can be tested objectively by facts’. It is this tension which leads to the doctrine of the basic norm
- Hart and Kelsen share 3 features on the doctrine of the law and of legal doctrine:
o The existence of law can be objectively ascertained by reference to social facts. Hart says that legal statements are either true or false and their truth conditions are their relations to complex social practices
o Hart, like Kelsen, regards legal statements as having a normative dimension, which can’t be reduced to an assertion of any social facts.
o Hart’s account of the normative dimension in terms of the illocutionary and expressive force of legal statements avoids ref to moral facts and doesn’t presuppose the existence of moral values. Because Kelsen also rejects the existence of absolute moral values his analysis would probably be along the lines of Hart’s
- Despite these similarities Kelsen’s views on legal statements are diff because Kelsen takes a cognitivist interpretation of all normative discourse. He rejects expressive statements such as Hart’s.
- A normative statement (legal or moral) expresses a practical attitude through expressing a belief in the existence of a valid norm, and a norm constitutes a value. So the normative aspect of legal statements isn’t explained by their illocutionary force or that they express an acceptance of a standard of behavior. Has to be explained by the fact that such statements assume that the existence of a value or norm (as a binding standard not as a social practice).
Legal statements Moral statements, both normative
- Because legal statements are ‘ought’ statements. Prob: if legal statements are as normative as moral ones then the law and its existence and content (which is what legal statements state) are essentially moral facts. But the study of moral facts and identifying them can’t be free of moral considerations.
- Kelsen’s solutions:
o Existence of law can be established and its content ascertained without use of normative statements. Law can be described in sociological terms (power structure in society). This description isn’t the same as a normative description of the law. If it were then it would amount to reductive analysis of normative analysis. But still conveys all the social facts which form the factual basis of the law, all the social practices which Hart regards as constituting the existence of law. But what is left out is that these social facts are ‘objectively valid’, that they give rise to rights and duties and to other normative consequences. Some people have the approx moral beliefs that they regard as the law as a normative system and describe it using legal systems. Those that don’t share these moral views deny that the law is normative, but they acknowledge its existence as a social fact.
o This isn’t enough, as it doesn’t est. possibility of pure study of law as a normative system. So, he says people have many moral beliefs and some of these coincide with the law. If one’s moral beliefs are exactly the same as the law then they derive from his belief in the moral authority of the ultimate law making process. The validity of legal norms is therefore a logical consequence of his beliefs (call him the legal man). Legal science studies law as a normative system but without committing itself to its normativity. So legal statements of legal science are conditional legal statements. If legal man is right then this is what you ought to do. The Pure Theory ‘describes positive law as an objectively valid normative order and this interpretation is only possible only under the condition that the basic norm is presupposed according to which the subjective meaning of the law-creating acts is also their obj meaning. So the pure theory characterizes this interpretation as possible- conditioned by the presupposed basic norm.’ this means that all legal statements of legal science are hypothetical. The legal man endorses the basic norm and everything that follows from it. Since scientific legal statements are conditional statements of the form are value-neutral and free from moral presuppositions. By using them legal science can be pure and law can be described as a normative system. But with this answer although law can be described as a normative system it doesn’t allow it to use categorical statements, as they state that the law is a system if valid norms. It only allows legal science to state what the law is if it is valid. If legal theory is to be pure they cannot be moral statements, can’t be hard-core normative statements. Kelsen requires a value-neutral interpretation of categorical normative statements.
o He solves this by making 3rd move. He says that legal scientists don’t just describe the law as if the basic norm is valid. They do actually presuppose the basic norm themselves. They assume its validity. Kelsen draws distinction b/w put forward and assuming the basic norm. This isn’t clear.
- Most scientific legal statements are categorical statements and there are 2 types of categorical statements (according to Raz)- committed and detached. The former are those of ordinary people who use normative language when stating the law because they believe in its binding force. Detached ones are typical of legal science, which takes the view of the legal man without being committed to it. It describes law in normative statements, but this is a view that isn’t necessarily accepted by the speaker. He talks as if he accepts the basic norm; this pretence is what Kelsen refers to as presupposing the basic norm as fiction.
- Detached statements state the law as a valid normative system, not just what would be valid if the basic norm is valid. They do this from the point of view of the legal man, to which they aren’t committed. Therefore legal science is pure, free of moral commitments despite its use of normative language.
- Contradictory norms
- Kelsen says legal norms can contradict each other: ‘if follows within such a normative order the same behaviour may be commanded and forbidden at the same time, this situation may be described without logical contradiction.’ If an official is both authorized and forbidden to apply sanctions one cant say that the sanction is authorized, but one can recognize the normative quality of contradictory norms, which have been authorized by the same higher dynamic norm, they are both valid
- In a static normative order one cannot have contradictions where ‘’a ought to be b’ and ‘a ought not to be b’ exclude each other…only one can be valid.
- Contradictory norms likely to be politically unsatisfactory, unlikely to achieve their purposes. Kelsen says legal orders will have rules to deal with contradictions, rules that prioritize one or other. May also be rules that allow rules under certain circumstances to lose their validity or rules of interpretation that allow narrowing and extending the meaning of the rules in q to avoid apparent contradictions.
- For Kelsen the unity in legal systems isn’t in non-contradictory norms but in the relationships of validity. All norms within a single legal system are valid by ref to same constitution. Only when one identifies what it means for a norm to be valid can you say whether a particular rule of a particular legal system exists at a particular time. For a statement of law to be true, there must be valid norms within a particular legal system, whose obj meaning can be described.
- Kelsen (Pure Theory of Law)
- The basic norm is the reason for validity of all norms. It provides unity. Such unity may be described in rules of law that don’t contradict one another. Conflicts do occur one is not true and the other false but one valid and the other invalid. A conflict of norms is just as meaningless as a logical contradiction.
- Contradiction must be solved by interpretation. Since structure of legal order is a hierarchy of higher and lower norms, whereby higher norm determines the creation of the lower one, prob of conflicts within same order presents itself in 2 forms, depending on whether conflict is b/w 2 norms on same level or between higher and lower norm.
- Conflicts on same level- validity of a later norm supersedes earlier one. This principle also applies if the 2 norms are prescribed by 2 diff organs but there may also be situations where the conflicting norms are prescribed at the same time (contradictory clauses in the same statute). Then the following possibilities: either the 2 norms can be understood to be subject to a choice by the law-applying organ e.g. the judge or if 2norms are only partly contradictory then one norm can be understood as limiting the validity of the other. The basic norm only gives objective meaning upon an act that has meaning (the subj meaning that people ought to behave in a certain way). The act must be meaningful in this normative sense. If the act has a different meaning assertion.
- Conflict may also be between 2 individual norms, such as 2 courts decisions, particularly if they’ve both been created by diff organs. Law might authorize 2 courts to decide the same case without giving the decision of the one courts the authority to abolish the decision of the other. May mean that an accused man is found guilty by one courts and acquitted by another. This conflict is solved by giving the executive organ the choice b/w the 2 divisions. If a conflict is present within the same courts decision (e.g. if judge is insane), then the act is simply meaningless and no objectively valid norm exists. The basic norm makes it possible to interpret the material submitted to legal cognition as a meaningful whole, which means, to describe it in logically non-contradictory sentences.
- No conflict is poss between higher and lower norm, because lower norm has the reason for its validity in the higher norm. if a lower norm is regarded as valid, it must be regarded as valid according to the higher norm.
- This doctrine of the unity of law has conclusions concerning the possible or actual relationships b/w int. law and all systems of municipal law. The two can therefore form one single system.
- Validity and effectiveness
- Prob with contradictory norms is there effects. Not only are they politically unsatisfactory, or as Fuller would argue, fail to guide human behaviour, but how can they exist within the same scheme of obj meaning? And how can they be?
- What does the Pure Theory say about the relationship b/w the validity of legal norms and their effectiveness? One extreme is the thesis that there is no connection b/w validity as something ought to be and effectiveness as something that is; that the validity of the law is entirely independent of its effectiveness. Other extreme is the thesis that validity and effectiveness are identical. An idealist tends to favour 1st solution and a realist theory the second.
- 1st is wrong as it is undeniable that a legal order in its entirety, and an individual legal norm as well, lose their validity when they cease to be effective; and that a relation exists b/w the ought in the legal nor and the is of the physical reality as far as positive norms are concerned, to be valid, must be created by an act which exists in the reality of being.
- 2nd is wrong because it is equally undeniable that there are many cases in which legal norms are regarded as valid even though they are not effective.
- Solution proposed by PTL is: just as the norm (where something ought to be) as the meaning of an act isn’t the same as the act (which actually is), in the same way is the validity of a legal norm may not be identical with its effectiveness. Effectiveness of legal order is a condition for the validity, in the sense that a legal order as whole can no longer be regarded as valid when they (norms) cease to be effective. Nor is the effectiveness of a legal order
- Reason for validity (why norms of this legal order ought to be obeyed) is the presupposed basic norm, according to which one ought to comply with an established constitution, and therefore with the norms.
- The effectiveness in the creation of the basic norm is the condition of validity. ‘Effectiveness’ is added as an ingredient in its creation- so it never loses its validity.
- Norms in legal order are valid because the fundamental rule regulating their creation (the basic norm) is presupposed to be valid, not because they are effective. But they are valid only as long as this legal order is effective (so if the constitution loses its effectiveness then every norm is invalid)
- Doesn’t matter if a single legal norm loses its validity
- A norm stating what something ought to be is meaningless- wouldn’t be regarded as valid. On the other hand, a norm is not regarded as valid which is never obeyed or applied (desuetude).
- Effectiveness is needed for validity, but it is not validity. Even a partly ineffective legal order may be regarded as valid.
- Validity and Efficacy
- Stone says that for a norm to be valid 2 requirements must be fulfilled:
o That norm must be part of a system of norms
o The system of norms to which it belongs must be efficacious
- Kelsen disagrees- he says that the efficacy of a legal order as a whole and that of a single norm are conditions of the validity. This means that the conditions of validity of the legal order or of a single norm are the act by which the norms are created (for norms) and the acts by which the norms of the legal order are created (for the legal order) and in addition to this the norm and the whole legal system are effective.
- Stone – prob with the relationship b/w efficacy. Kelsen says ‘the reason of the validity can never be a fact’ but Stone says that when the effectiveness of the system as a whole isn’t given, the validity of each norm also partly depends on the q of fact whether people actually behave in a certain way towards the system or norm. Kelsen says that the efficacy of a system is only a condition for validity, not validity itself. Therefore it is one of the requirements needed. Kelsen gives the e.g. of living. In order to live you must be born. But to remain alive other conditions must be fulfilled (like nourishment). But life is not identical with being born.
- A norm becomes valid before it can be effective- courts applies only a valid statute. It becomes effective after it has been used. Kelsen says that Stone ignores this.
- Stone says that Kelsen doesn’t distinguish b/w the effectiveness of the collective of single norms from that of the system of norms as a whole. Kelsen responds by saying a ‘system’ of norms is the plurality of norms and he says that a system doesn’t lose its validity if ‘its norms are by and large effective’
- The Basic Norm
- Stone says that the basic norm conceals an ambiguity. On the one hand a norm that is at the top of the pyramid and on the other hand, some other norms which remain outside this pyramid, and thus is wholly meta-legal, and amounts to a general presupposition requiring that in each legal order ‘the constitution’ shall be obeyed and that Kelsen now claims ‘that the basic norm is outside the legal system’ but it still ‘has legally relevant functions’. Stone says that therefore the basic norm is not a norm of positive law but still a norm of positive law.
- Kelsen says it isn’t a norm of positive law as it is not a norm ‘posited’ (i.e. created by a real act of will of a legal organ) but it is norm presupposed in juristic thinking. Kelsen says that it is meta-legal in the sense that it is not a norm of positive law. It is ‘legal’ if by this we mean everything that has legally relevant functions. The basic norm has the function to found the objective validity of the subjective meaning of the acts by which the constitution is created. Basic norm here seems like natural law doctrine according to which a positive legal order is valid if it corresponds to the natural law. NL isn’t considered to be ‘meta legal’ though it is not a positive law. But there are differences b/w basic norm and NL. The content of the positive legal order is completely independent of the basic norm (it only provides objective validity) NL is part of legal order. There can be no conflict b/w legal order and basic norm but it is possible with NL. Stone doesn’t mention this.
- Stone says that the basic norm guarantees that the system of norms is by and large efficacious. Kelsen says he does not maintain that the basic norm ‘guarantees’ this. He says that the basic norm only refers to a coercive order, which is by and large effective. Therefore we only presuppose the basic norm if there is a coercive social order and the basic norm is adapted to this order (not the other way around). The basic norm depends on the normative order to which it refers and does not (as Stone asserts) depend on the ‘fact of men’s actual behavior and exposure to sanctions’.
- Stone asks what the PT can tell us about the nature and origin of the basic norm? He says Kelsen tells us nothing since the q is a meta-legal one.
- Kelsen says the function of the basic norm is to make it possible to consider the subjective meaning of the law creating acts (which is an ‘ought’) as their objective meaning, and thus as objectively valid norms.
- Kelsen points out that it is not necessary to presuppose the basic norm. Only if we presuppose it can we consider a coercive order, which is by and large effective as a system of objectively valid norms. Therefore the objective validity of the legal norms is conditional.
- Basic norm is presupposed as a valid norm.
- Prob that leads to the basic norm is how to distinguish a legal command which is seen as objectively valid (like revenue officer demanding £), from a command which has the same subjective meaning but isn’t objectively valid (like a command from a gangster). The difference consists in that we do not consider the subjective meaning of the command of a gangster as its objective meaning as we presuppose a basic norm.
- It is the ‘quest for the reason for the validity of the law’, which leads to the presupposition of the basic norm. The Grundnorm is the reason for the validity of a legal system. And the function of the Grundnorm is to achieve the objective validity of a social order.
- The basic norm doesn’t answer the q of whether the existing order is a legal one, but the q as to what is the reason for the validity of this legal order.
- Stone says that without the basic norm there is not really a legal system at all and so the PTL is ‘empty and inapplicable to any legal problems’ but this does not stand, according to Kelsen, since the basic norm only serves to provide objective validity.
- The basic norm is dynamic in character. The static principle gains access to the system of positive law.
- Basic norm delegates norm-making competence but it may also designate the procedure or ‘manner and form’, by which alone the ‘designated persons can exercise norm-creating power’. Constitution may also perform such functions in a positive legal sense. (Basic norm creates constitution in a legal-logical sense)
- Stone asks 7 questions about the basic norm, to which Kelsen provides answers
- When Kelsen refers to ‘basic norm’, ‘origin norm’ and ‘constitution in a legal logical sense’, is he naming the same entity? If so, are these names semantically appropriate for the same entity?
Answer: they are the same thing
- Does Kelsen offer the ‘basic norm’ as merely an intellectual construct to aid cognition by jurisprudence of a legal order as a whole? Or does he offer it as the origin norm, the source to which lawyers too must trace the validity of all the norms of the legal system? Is it the ‘legal-logical’ or a ‘legal’ concept?
Answer: basic norm isn’t an intellectual construct as it is not created by juristic thinking, but presupposed in it. Norms within a legal system are objectively valid. People give subjective meanings to the acts established by the constitution and these are their objective meanings. And asking how their subjective meanings are the same as the objective ones is analogous to the q characterized by Kant as transcendental-logical (how is it possible to have a non metaphysical interpretation of the facts ascertained in the laws of nature by which the science of nature describes its object)- for these reasons the basic norm is both transcendental-logical and a legal concept.
3. Similar to 2
4. Is the ‘basic norm’ intended to express a uniform basic norm for all legal systems or are they a statement matrix with a blank to be separately filled for each legal order?
Answer: for each positive legal order a specific basic norm referring to the constitution (in the positive legal sense) of this legal system is to be presupposed. Since different legal orders are based on diff constitutions, different basic norms are to be presupposed.
5. What is meant by calling the basic norm a ‘hypothesis’ or a ‘hypothetical norm’? Are they the same thing?
Answer: the word hypothetical is used in its literal sense. He uses it in connection with the basic norm, but with respect to positive general legal norms.
6. When Kelsen says the ‘validity’ of the ‘basic norm’ is presupposed, does he though its validity is to be established through other norms, these latter are not the concern? Or does he mean that its validity is to be established by reference to criteria which are factual, and not normative, and also not the concern of the jurisprudent or lawyer? Or does he mean both? Or that it is immaterial which?
Answer: if the basic norm is presupposed to be valid then refers to the norms of a legal order and that a condition of their positivity is that they are by and large effective.
7. What is the bearing, if any, of Kelsen’s ‘purity’ thesis on these and other aspects of the ‘basic norm’? Is the method of cognition of the ‘basic norm’ intended to be ‘pure’? Or does Kelsen’s recent re-emphasis that the ‘basic norm’ stands ‘outside’ the legal system imply that he recognizes that the matters affecting the ‘basic norm’ are also ‘outside’ his requirement of juristic purity of method?
Answer: the assumption of purity refers to the entire theory of law, inc that of the basic norm. There is no particular ‘bearing’ of the ‘purity thesis’ on any aspect of the basic norm. Kelsen says he hasn’t reemphasized that basic norm stands outside the legal system.
§ Kelsen’s abstract thesis on relationship between validity and effectiveness has been used in Appeal courts in diff countries.
§ Q comes up in revolutionary situations: whose version of what law is should prevail? In PTL section called ‘Legitimacy and Effectiveness’ he talks about the change of the basic norm at times of revolution. ‘The change of the basic norm (BN) follows the change of the facts that are interpreted as creating and applying valid legal norms. BN refers only to a constitution which is actually established by legislative act or custom, and is effective. Constitution is ‘effective’ if the norms created in conformity with it are by and large applied and obeyed.’
§ Surprising the theory is used for 2 reasons:
§ Particular reason- K often describes BN as a juristic presupposition, often unclear who this juristic person is, who does the presupposing? In civil law traditions jurists rather than judges explore the deeper questions of the meaning of law. It is only too obvious in revolutionary situations; judges are in a vulnerable position. As Eeckelaar demonstrates, their role may exclude them from the necessary intellectual demands. The actions of judges may complete the revolution in law, by their acceptance of the legal authority of the new regime. The type of reasoning employed by, and the likely political capitulation of judges, in these situations, are unlikely to satisfy the conditions of normative reasoning.
§ General reason- the nature of the q that the courts consider, and which they appear to turn to Kelsen’s analysis of the BN to consider, is not a particularly relevant q to the PT. The theory is premised on the view that it is nearly always possible to identify the BN in order to apply the theory. Q that judges are forced to consider in revolutionary situations, goes a step beyond the theory. So maybe judges refer to Kelsen because he has little to say on the subject.
§ The nature of legal technique and the nature of freedom
§ Kelsen says that even under the most totalitarian order you can’t regulate all human behavior. Freedom exists because of the technically ltd possibility of applying legal technique to all behavior, so what law guarantees as freedom is dependent on what specific guarantees, specific legal rules, the legal order contains. This approach of ‘freedom under the law’ can be considered in terms of its normativisation.
§ Kelsen: as a sanction prescribing legal order the law regulates human behavior in 2 ways:
§ Positively- commanding such behaviour and thereby prohibiting the opposite behaviour.
§ Negatively- by not attaching a coercive act to a certain behaviour, therefore not prohibiting this behaviour and not commanding the opposite behaviour.
§ Human behaviour is either prohibited or not prohibited. If it is allowed it is by the legal order, any behaviour of an individual subjected to a legal order may be regarded as regulated by it. You can do something because the legal order allows you to (positive sense), it is therefore not prohibited and you are legally free.
§ The freedom you get simply by something not being prohibited must be distinguished from a freedom which is positively guaranteed by that order (therefore it doesn’t have an opp behaviour that is prohibited). Behaviour may be allowed, for e.g., b’cos it doesn’t relate to other individuals or doesn’t hurt anyone.
§ If there is not an opposite reaction to behaviour that is allowed (i.e. being prohibited) there can be a conflict, which the legal system has no provision for. Impossible to prevent any conflict.
§ Only one thing is prohibited universally by all modern legal systems: to prevent another individual by force from doing what is prohibited. ‘Coercive action’ is positively permitted to authorize people, but is prohibited in principle.
§ A legal order can only command specific acts. No legal order can limit the total behaviour of an individual. ‘A minimum of freedom’ always remains reserved.
§ Even in totalitarian order there is still freedom (cant regulate what you think or feel).
§ This is all guaranteed, as the legal order doesn’t prohibit it. This is why civil liberties are important. They limit the competence of the legislators to the extent that they cant issue norms that command or forbid certain behaviour, such as the practice of a certain religion.
§ Kelsen says law is normative and thereby a specific technique of social organization, with necessary preconditions and outcomes.
§ The Problem of the freedom of will
§ Imputation (attribute) has an end point. Causality does not. This rests the contrast b/w the necessity in nature and the freedom that exists in society.
§ A man, part of nature, is not free, his behaviour, looked upon a natural fact, is caused by other facts according to the law of nature. His behaviour is an effect of these facts an therefore must be determined by them
§ But the main, as a legal person. Is ‘free’ and so responsible has a different meaning.
§ Behaviour is interpreted as according to a moral or legal law as a merit, sin, or delict. If to the merit you impute (give) a reward, to a sin a penance, and to a delict a sanction, then this imputation ends in the behaviour interpreted as a merit, sin or delict. But it actually the merit of this man that should be rewarded or his crime that should be punished. Human behaviour can’t be separated from the human.
§ The moral or legal q of imputation is who is responsible for the behaviour. Therefore who ought to be responsible? It is the reward, the penance, and the punishment that are imputed as specific consequences to specific conditions. The condition is the behaviour that represents the merit, sin or crime. Giving punishment to the crime includes giving it to the man.
§ Prob of legal responsibility connected to prob of retribution. Retribution connects a behaviour, which is in conformity to a norm with a reward, behaviour in conflict with penance or punishment. It presupposes a norm that commands or prohibits this behaviour or it is a norm that prohibits the behaviour just by attaching a punishment to it.
§ The behaviour is the condition for the sanction. Having to act in a certain way (e.g. repay a loan) is imputed to its immediate condition, the receipt of the loan. Reward, penance, punishment are not imputed to the condition under which a certain behaviour is commanded as meritorious (e.g.). They are imputed to the man who behaves in conformity (or in conflict) with the command.
§ If however, a certain event is the effect of a cause and if this cause always itself has a cause, then this cause, too, is the cause of the event in question. It is part of an infinite chain. There is no end point (unlike imputation)
§ This is the true meaning of the idea that man, as the subject of a moral or legal order, is a member of a society and as a moral or legal person, is ‘free’. This means that he is the end point of an imputation
§ To be free means not to be subject to the law of causality. Man has free will, as his will is the cause of effects, but not the effect of causes. Only b’cos man is free can he be responsible for his behaviour. However this assertion is in conflict with the facts of social life.
§ The establishment of a normative, behaviour regulating, order, which is the only basis of imputation, actually presupposes that man’s will is causally determinable, therefore not free.
§ It is function of such an order to make humans to observe the behaviour commanded by the order.
§ No point having a norm for something that is known by the law of nature. This suggests that normativity and causality are mutually exclusive (law of nature says you will die, no point having norm that says man ought not to die). Not true. Behaviour may be causally determined (determined by law of nature) but they don’t necessarily do it by the law of nature. E.g telling the truth or lying. This is causally determined but we don’t assume there is a law of nature that determines man always speaks the truth, so a norm that man ought to speak the truth is in conformity with law of nature.
§ Sometimes said that man’s will is actually causally determined, but to make legal imputation possible man’s will must be regarded as free.
§ If man’s will isn’t free then animals and natural events should be morally-legally responsible. But then imputation only takes place with man because legal order command only human behaviour
§ Is freedom of will because legal orders exempt certain cases from responsibility because a free act of will hasn’t taken place. Modern legal orders presuppose an average human and an average set of external circumstances under which people at causally determined.
§ Determinism and moral-legal responsibility can be compatible only by referring to the fact that our knowledge if the causal determination of human behaviour is inadequate. We don’t know the causes that determine human behaviour.
§ It is causal determinacy (not freedom of will) that makes imputation possible. You don’t impute a sanction to behaviour because the man is free, but the individual is free because his behaviour is imputed with a sanction. (You don’t punish because someone is free, they are free because you can punish)
§ Imputation and freedom are linked. But this freedom can’t exclude causality. If man as a legal personality is free then this legal freedom must be compatible with the causal determination of his behaviour. Man is free because reward, penance and punishment are imputed as a consequence of certain behaviour- not because this conduct is causally determined. Man is free because his behaviour is an end point for imputation, even if his behaviour is causally determined. Shows that the causality of the natural order and freedom under a legal order aren’t incompatible because one is the system that is and the other (natural order) is something that ought to be.