Professional Documents
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Hans Lindahl*
ABSTRACT
INTRODUCTION
769
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I. DIALECTIC
1 See HANS KELSEN, PURE THEORY OF LAW 348-49 (Max Knight trans., University
of California Press 2d ed. 1970) (1967) (second edition of the Reine Rechtslehre)
[hereinafter KELSEN, PURE THEORY OF LAW].
2 HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY 80 (Bonnie
Litschewski Paulson & Stanley L. Paulson trans., Clarendon Press 2d ed. 1992) (1934)
(first edition of the Reine Rechtslehre) [hereinafter KELSEN, PROBLEMS OF LEGAL
THEORY].
3 Id. at 81.
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desired by the authority applying it.”4 Kelsen does not mince his
words about this procedure: it boils down to usurping the functions
of a legal authority.
While this conspectus could be further refined, it suffices to
capture the main thrust of Kelsen’s theory of legal interpretation.5
Let us now briefly focus on its key assumption, to clear the way for
a second approach to interpretation: an approach that the Pure
Theory hints at, but does not develop.
Kelsen’s proposal to view the legal norm as a “frame” of
meanings has some plausibility, for it is undoubtedly the case that
although legal norms are polysemic, they are not infinitely so. Yet
his reference to a “frame” says more than this: It is the task of
legal science to “[exhibit] on the basis of a critical analysis all
possible interpretations (including the politically undesired ones
and those not intended by the legislator or the contracting parties,
yet included in the wording chosen by them).”6 Qua “frame,” the
legal norm is a closed and unchanging corpus of meanings, waiting
to be discovered and ordered by legal science.
Precisely for this reason, Kelsen’s critique concerns the
attainability, but not the concept, of legal certainty. For the frame
theory implies that certainty is possible about the range of
meanings encompassed by a legal norm, in the sense of an
exhaustive and conclusive enumeration of the possible applications
of a norm. Far from relinquishing the traditional idea of legal
certainty, Kelsen’s critique confirms and even reinforces it.
Indeed, unmasking the illusion of legal certainty goes hand in hand
with a stern admonition about the practical importance of good
draughtsmanship, in view of attaining a high degree of legal
certainty:
[S]cientific interpretation can show the law-creating authority
how far his work is behind the technical postulate of
formulating legal norms as unambiguously as possible, or, at
least, in such a way that the unavoidable ambiguity is reduced
to a minimum and that thereby the highest possible degree of
legal security is achieved.7
In contrast with the more or less subjective, and politically
interested viewpoint of interpretations arising from the application
of legal norms, the interpretative viewpoint of legal science is
disinterested and, in its disinterestedness, objective. In other
4Id. at 85.
5See Stanley L. Paulson, Kelsen on Legal Interpretation, 10 LEGAL STUD.: J. SOC’Y
PUB. TCHRS. L. 136 (1990) for a fine survey and discussion of Kelsen’s relevant writings.
6 KELSEN, PURE THEORY OF LAW, supra note 1, at 356 (emphasis added).
7 Id.
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GENEALOGY OF LOGIC 88-91 (Ludwig Landgrebe ed., James S. Churchill & Karl
Ameriks trans., 1973) [hereinafter HUSSERL, EXPERIENCE AND JUDGMENT]. This insight
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challenges Kelsen’s attempt to contrast the interpretative character of the law with
perception. Indeed, Kelsen suggests that “[legal] ‘meaning’ is not something one can see
or hear in the act qua external material fact, as one can perceive in an object its natural
properties and functions, such as colour, rigidity, and weight.” KELSEN, PROBLEMS OF
LEGAL THEORY, supra note 2, at 9. This view of perception is essentialistic; the
perception of so-called “natural properties and functions” of an object is no less a
hermeneutic achievement than the assignment of a legal meaning to an event.
13 Gadamer, supra note 11, at 30.
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14 In particular, behavior that “breaks” the law actually “fits” it, if such behavior poses
no problem for legal interpretation, i.e., if it does not contest the boundary between the
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facts do not match a legal norm when they should; their legal
qualification becomes problematic. On the one hand, the
normative interpretability of the material fact, as anticipated by
the legal norm, gives way to uninterpretability, by questioning the
criterion of inclusion and exclusion contained in the applicable
norm. What announces itself in strange behavior is a different way
of distinguishing between legally important and unimportant
values. On the other hand, the applicable norm becomes
inapplicable. Interpretation is arrested, whereby legal meaning
itself becomes obtrusive. In a word, the scheme of interpretation
is rendered thematic as a scheme.15 On this reading, strangeness
denotes what subverts the law by challenging the criteria of
inclusion and exclusion defining an individual norm, a legal
institution or a fundamental value of the legal order as a whole.
As such, strangeness has a thoroughly ambiguous character: it both
threatens and reveals new possibilities. This, precisely, is the
experience of legal contingency.16
Significantly, this experience of contingency comes to the fore
in Kelsen’s reference to legal gaps, independently of his
assessment thereof: “The so-called ‘gap,’ . . . is nothing but the
difference between the positive law and a system held to be better,
more just, more nearly right.”17 The “difference” to which Kelsen
refers is, at bottom, the difference between actuality and
possibility, between law as posited and as possible order. From
values protected by a legal order and those it does not protect. This insight is well known
to criminal law doctrine, according to which behavior is criminal by virtue of fulfilling,
rather than deviating from, the act as described in the pursuant norm.
15 Heidegger has coined the distinction between “handiness” (Zuhandenheit) and
18 HANS-GEORG GADAMER, TRUTH AND METHOD 354 (Joel Weinsheimer & Donald
G. Marshall trans., Crossroad 2d ed. 1989) (1975) [hereinafter GADAMER, TRUTH AND
METHOD]. Significantly, Gadamer’s analysis of the negativity of hermeneutic experience
is akin to Husserl’s analysis of negation in the structures of perception. See HUSSERL,
EXPERIENCE AND JUDGMENT, supra note 12. Schütz and Luckmann describe this highly
general pattern of rationality in terms of “types” which arise as a response to “atypical” or
“unfamiliar” situations, that is, situations that do not fit in the available “types” with which
we interpret reality: “a type arises from a situationally adequate solution to a problematic
situation through the new determination of an experience which could not be mastered
with the aid of the stock of knowledge already on hand.” ALFRED SCHÜTZ & THOMAS
LUCKMANN, THE STRUCTURES OF THE LIFE-WORLD 231 (Richard M. Zaner & H.
Tristram Engelhardt, Jr. trans., Heinemann 1974) (1973). This pattern of rationality also
lies at the core of American pragmatism:
According to this [pragmatist] model, all perception of the world and all action
in the world is anchored in an unreflected belief in self-evident given facts and
successful habits. However, this belief, and the routines of action based upon it,
are repeatedly shattered; . . . our habitual actions meet with resistance from the
world and rebound back on us. This is the phase of real doubt. And the only
way out of this phase is a reconstruction of the interrupted context. . . . This
reconstruction is a creative achievement . . . .
HANS JOAS, THE CREATIVITY OF ACTION 128-29 (Jeremy Gaines & Paul Keast trans.,
Polity Press 1996) (1992).
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19 Michel Troper has made a related point when noting that “the juridical existence of
a statutory norm does not result from its conformity with the Constitution but from the
judge’s interpretation thereof. Validity does not stem from the superior norm but from the
process of producing inferior norms.” Michel Troper, Kelsen, la théorie de l’interprétation
et la structure de l’ordre juridique, in REVUE INTERNATIONALE DE PHILOSOPHIE 526
(1981) (translation by the author).
20 Analogously, Neil MacCormick refers to what he calls “ordinarily necessary” of
C. Implications
21 See HEIDEGGER, supra note 15, § 32. See also GADAMER, TRUTH AND METHOD,
supra note 18, at 265-71; HANS-GEORG GADAMER, Vom Zirkel des Verstehens, in
HERMENEUTIK II: WAHRHEIT UND METHODE: ERGÄNZUNGEN - REGISTER 57 (1986).
22 See generally HANS LINDAHL, Authority and Representation, 19 LAW & PHIL. 223
(2000).
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3. Normative Limits
4. Identity
24 KELSEN, PURE THEORY OF LAW, supra note 1, at 279 (translation altered by the
author).
25 HANS-GEORG GADAMER, PHILOSOPHICAL HERMENEUTICS 55 (David E. Linge
the law is anchored in the fact that human beings can only
experience reality by interpreting it. The operation of legal
inclusion and exclusion that makes it possible to objectify reality
inevitably creates conditions whereby normative meanings can be
exposed as subjective, as the expression of a particular interest.
While the legal norm functions as the ground of the act that
objectifies reality, the legal norm itself can be challenged as a
principle of objectification. What subverts the law contests the
legal norm’s claim to generality, revealing it to be a more or less
subjective criterion of normative inclusion and exclusion—that is,
a more or less arbitrary inclusion and exclusion of values.32
On Gadamer’s view, what a legal order has marginalized can
be brought back into the fold of law by redefining the scope of a
legal norm, a legal institution, or a fundamental value of the legal
order. As he sees it, the dialectic of legal interpretation promises a
broader inclusiveness in response to the subversion of legal order.
This, concretely, is the way in which legal interpretation acquits
itself of the general task of hermeneutics: overcoming
strangeness.33 And to the extent that objectivity is the expression
of rationality, the circle at work in legal interpretation defines legal
rationality as such. As Gadamer sees it, legal rationality obtains
fulfillment when interpretation reconciles law and what subverts
the law in a higher-order legality, even though, in opposition to
Hegel, this higher-order legality remains forever incomplete and
provisional. On this reading, legal interpretation effects a
“transform[ation] into a communion . . . .”34
32 The implications of this insight are in no way limited to Kelsen. For example, Bork’s
II. REVOLUTION
35 In this way, it would be possible, I believe, to recover Kelsen’s insight that the act of
setting the law is an act of the will, not merely an act of interpretation. See, amongst
others, KELSEN, PROBLEMS OF LEGAL THEORY, supra note 2, at 11-12.
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38 Id.
39 RONALD DWORKIN, LAW’S EMPIRE 52 (1986).
40 Id. at 55. On the German scene, the Gadamerian notion of application has played
an important role in, amongst others, the well-known JOSEF ESSER, VORVERSTÄNDNIS
UND METHODENWAHL IN DER RECHTSFINDUNG: RATIONALITÄTS-GARANTIEN DER
RICHTERLICHEN ENTSCHEIDUNGSPRAXIS (1970), albeit that Esser ultimately embraces a
form of positivism. For a critique of Esser in this vein, see BERT VAN ROERMUND, LAW,
NARRATIVE AND REALITY: AN ESSAY IN INTERCEPTING POLITICS 133-38 (1997).
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norm; the forthcoming analysis limits itself to those aspects of the theory that seem most
apposite to the debate between Kelsen and Gadamer. Several first-class articles dealing
with the basic norm are collected in NORMATIVITY AND NORMS: CRITICAL
PERSPECTIVES ON KELSENIAN THEMES (Stanley L. Paulson & Bonnie Litschewski
Paulson eds., Bonnie Litschewski Paulson et al. trans., 1998). Although I will not attempt
to position this Article by reference to the vast literature on the basic norm, certain
articles have been important sources of inspiration for the final section of this Article. See
generally Emilios A. Christodoulidis, The Aporia of Sovereignty: On the Representation of
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the People in Constitutional Discourse, 12 KING’S C. L.J. 111 (2001); Bert van Roermund,
Authority and Authorisation, 19 LAW & PHIL. 201 (2000).
42 KELSEN, PURE THEORY OF LAW, supra note 1, at 201. This, as Kelsen notes, is a
violation of law.44
Several interrelated aspects of this passage are of the utmost
importance for a theory of legal interpretation. These aspects
suggest that, despite the hermeneutic circularity at work in the law,
legal interpretation is irreducible to other modes of interpretation
envisaged by Gadamer. In other words, Kelsen’s theory of the
basic norm calls into question Gadamer’s assumption that legal
interpretation is paradigmatic for the hermeneutic enterprise as a
whole.
1. Interpretative Incommensurability
2. Normative Limits
4. Avoiding Reification
49 I have developed these ideas at greater length. See generally Hans Lindahl,
Sovereignty and Representation in the European Union, in SOVEREIGNTY IN TRANSITION
(Neil Walker ed., forthcoming 2003); Hans Lindahl, Acquiring a Community: The
“Acquis” and the Institution of European Legal Order, EUR. L.J. (forthcoming 2003).
50 GADAMER, TRUTH AND METHOD, supra note 18, at 280.
51 See Gadamer, supra note 11.
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