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DIALECTIC AND REVOLUTION:


CONFRONTING KELSEN AND GADAMER ON
LEGAL INTERPRETATION

Hans Lindahl*

ABSTRACT

This paper examines the general structure and conditions of


legal interpretation that arise from confronting Gadamer’s
philosophical hermeneutics with a determinate conception of legal
interpretation suggested by Kelsen’s Pure Theory of Law. The
Gadamerian question, “What defines legal interpretation as
interpretation?”, suggests that Kelsen’s reference to legal norms as
“schemes of interpretation” must be radicalized: a hermeneutic
circularity or dialectic is at work in the law, such that the legal
interpretation of reality also changes, to a lesser or greater extent,
the principle of interpretation—the legal norm. The Kelsenian
question, “What defines interpretation as legal interpretation?”,
suggests that legal interpretation always moves on this side of a
normative rupture that cannot be “closed” interpretatively from
within the order itself. This insight implies that Gadamer’s
account of legal interpretation ultimately falls prey to positivism.

INTRODUCTION

Anyone who peruses Kelsen’s Pure Theory of Law expecting


to find a full-blown philosophical analysis of legal interpretation is
bound to be disappointed, at least at first glance. Legal
interpretation plays a relatively modest role in the framework of

* Associate Professor of Legal Philosophy, Faculty of Philosophy, Tilburg University,


Post Box 90153, 5000 LE Tilburg, the Netherlands (H.K.Lindahl@uvt.nl). The author
thanks Ulises Schmill, Michel Troper, Bert van Roermund, and Oscar Sarlo for helpful
comments to a draft of this Paper presented at the IVR Congress in Amsterdam, June
2001. This Paper also has benefited from comments to an earlier draft by Bart van Klink
and Emilios Christodoulidis.

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the Pure Theory, and the focus of Kelsen’s analysis is extremely


narrow. His approach is largely determined by an
uncompromising rejection of the view that the methods of legal
interpretation lead to “one right answer.” Although perceptive,
Kelsen’s approach to legal interpretation is undoubtedly too
restrictive. The narrowness—and even reductionism—of his
approach is striking because interpretation occupied pride of place
in various lines of philosophical inquiry roughly contemporaneous
with his development of the Pure Theory. Edmund Husserl’s
analysis of the structure of intentionality, Martin Heidegger’s
discussion of understanding as a fundamental feature of how
human beings relate to the world, and Hans-Georg Gadamer’s
elaboration of a philosophical hermeneutics can be seen, if one
abstracts from their considerable differences, as attempts to clarify
the general structure and conditions of possibility of
interpretation.
Gadamer’s work, in particular, is of great interest, as he
specifically deals with legal interpretation, which he views as
paradigmatic for the hermeneutic enterprise as a whole. Truth and
Method, his masterwork, has profoundly influenced jurisprudential
discussion about the concept and task of legal interpretation, both
in Continental Europe and in the Anglo-Saxon tradition. A case
in point is Ronald Dworkin, who acknowledged his debt to
Gadamer in the opening chapters of Law’s Empire. In short, while
what might very loosely be called the hermeneutic turn in modern
philosophy has had a considerable impact on the jurisprudential
discussion of legal interpretation, Kelsen remained stubbornly
impervious to this strand of thinking.
It is tempting to conclude that, by dint of the kinds of
questions that interested Kelsen, the Pure Theory has little or
nothing to offer in the way of a philosophical elaboration of the
concept of legal interpretation. This conclusion would be
premature. I will argue that the Pure Theory’s fundamental
contribution to a theory of legal interpretation is to be found
elsewhere, in the theory of the basic norm. I propose, therefore, to
examine the general structure and conditions of possibility of legal
interpretation by confronting Kelsen’s Pure Theory of Law with
Gadamer’s philosophical hermeneutics.
This confrontation unfolds in two episodes. The first has
Gadamer critically reading Kelsen. The master concept of this
episode is dialectic or, as Gadamer puts it, the “hermeneutic
circle.” In effect, a radicalization of Kelsen’s account of the legal
norm as a “scheme of interpretation” reveals a dialectic at work in
the law: the legal interpretation of reality also changes, to a lesser
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or greater extent, the principle of interpretation—the legal norm.


The second episode has Kelsen critically reading Gadamer. Here,
revolution functions as the master concept of the debate. Kelsen’s
analysis of the genesis of a legal order in the framework of his
famous theory of the basic norm effectively exposes the limit of
legal interpretation in a strong sense of the term “limit”: every
order of positive law is radically contingent because legal
interpretation always moves on this side of a normative rupture
that cannot be “closed” interpretatively from within the legal
order itself. Kelsen’s critique, I will argue, reveals a residue of
positivism that governs Gadamer’s account of legal interpretation,
despite the latter’s explicit and sustained critique thereof.

I. DIALECTIC

A latent ambiguity characterizes Kelsen’s theory of legal


interpretation. The ambiguity stems from the fact that the Pure
Theory contains not one but two very different approaches to legal
interpretation. This ambiguity is latent because whereas Kelsen
fully exploited one of these approaches, the other never really gets
off the ground. The first rests on the idea that a legal norm is a
“frame” of possibilities, i.e., a broader or narrower range of
normative meanings awaiting discovery by an interpretative act.
The second focuses on the legal norm as a “scheme of
interpretation.” After a brief discussion of Kelsen’s favored
approach, I will show how the notion of a “scheme of
interpretation” allows the Pure Theory to rejoin the “hermeneutic
turn” of modern philosophy.

A. The Legal Norm as a “Frame” of Meanings

Interpretation, as Kelsen recognizes, is a ubiquitous feature of


the law. Interpretation is required for all cases in which legal
norms must be applied, including constitutional norms, statutes,
administrative regulations, judicial decisions, and contracts. Yet
the process of applying norms by no means exhausts the scope of
legal interpretation: to be able to follow or comply with norms,
individuals must interpret them. Moreover, the bailiwick of legal
interpretation is not limited to a practical attitude toward the law,
as in applying or complying with the law; legal science must also
interpret the law in the process of describing it, i.e., when
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entertaining a purely theoretical attitude towards the law.1


What then is legal interpretation? Kelsen’s answer to this
question is intimately woven into the notion of legal norms as
“frames” that contain a range of possible applications. As he puts
it, “[i]f ‘interpretation’ is understood as discovering the meaning of
the norm to be applied, its result can only be the discovery of the
frame that the norm to be interpreted represents and, within this
frame, the cognition of various possibilities for application.”2
Succinctly, to understand a legal norm is to clarify it, and to clarify
it is to draw out and fix—feststellen—the ensemble of meanings
that defines the legal norm as a “frame” of possible applications.
This, in substance, is what Kelsen tells us about the concept of
legal interpretation.
The frame theory of legal meaning prepares the way for two
polemical standpoints that Kelsen defends against traditional
theories of legal interpretation. The first concerns legal certainty.
As he sees it, the so-called methods of legal interpretation conceal
the fact that “there is no criterion on the basis of which one of the
possibilities given within the frame of the norm to be applied could
be favoured over the other possibilities.”3 Thus, the question
concerning the “correct” interpretation of a legal norm is a
problem of legal policy, not of legal theory. By implication, legal
certainty, i.e., the idea that the interpretation favored by the legal
authority—and only that interpretation—flows inexorably from
the applicable norm, is an illusion that merely masks the
discretionary power exercised by legal authorities.
The second polemical standpoint concerns the problem of
“gaps” in the law. From a strictly logical point of view, there are
no gaps in the law, for if no legal norm is applicable to a case
brought before the law, then the apposite legal authority can
simply reject the claim as unfounded. Instead, the problem of gaps
refers to those cases in which the application of the norm’s
meaning leads to a result that is viewed as unjust or impractical. In
such cases, the methods of interpretation are invoked to remove
this discrepancy. In fact, however, they are mustered “to eliminate
the norm to be interpreted, in order to replace it with . . . the norm

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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words, the scientific viewpoint allows legal cognition to reproduce,


by way of legal propositions, all and only those meanings
contained in a norm. To interpret is to represent, and to represent
is to articulate an original range of meanings given directly to
cognition. This representationalistic presupposition informs
Kelsen’s bottom-line on legal interpretation: “[O]ne cannot extract
from a norm by way of interpretation what the norm never had.”8
Although Kelsen is no doubt right in asserting that not any
interpretation goes, must we also take on board his
representationalistic assumption that the legal norm always had
the meaning or meanings revealed by an interpretative act? What
is required is not simply to show that legal certainty is
unattainable, as Kelsen thought, but to radically reconsider its
concept. Reconsidering the concept of legal certainty implies
thinking through, once again, the meaning of legal interpretation
and its relation to subjectivity and objectivity. Does the Pure
Theory of Law itself suggest a more radical approach to
interpretation?

B. The Legal Norm as a “Scheme of Interpretation”

The traces of an affirmative answer to this question are


present at the outset of both editions of the Reine Rechtslehre,
when Kelsen refers to legal norms as “schemes of interpretation.”
Human behavior, he argues, becomes a legal act when it acquires
legal meaning, and an act receives this meaning when brought into
connection with a legal norm:
[W]hat makes such an event a legal act is its meaning, the
objective sense that attaches to the act. The specifically legal
sense of the event . . . , its own peculiarly legal meaning, comes
by way of a norm whose content refers [bezieht] to the event
and confers legal meaning on it; the act can be interpreted,
then, according to this norm. The norm functions as a scheme
of interpretation.9
Kelsen illustrates this conception of the legal norm by
reference to adjudication, a specific case of law-setting:
When a judge establishes as a given a concrete material
fact (say, a delict), his cognition is directed first of all simply to
something existing in nature. His cognition becomes legal at
the point at which he brings together [in Beziehung bringt] the
material fact he has established and the statute he is to apply;

8 KELSEN, PROBLEMS OF LEGAL THEORY, supra note 2, at 87.


9 Id. at 10. See KELSEN, PURE THEORY OF LAW, supra note 1, at 3-4.
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that is to say, his cognition becomes legal when he interprets the


material fact as ‘theft’ or ‘fraud.’10
What first strikes the eye in these passages is Kelsen’s
characterization of law-setting as a “relating” (beziehen). What
kind of relation does law-setting bring about? When a legal
authority posits a norm, it qualifies an event legally: it reveals a
state of affairs as possessing a determinate normative meaning.
The act of setting the law objectifies the event, in the fundamental
sense of the term “objectivity”: law-setting discloses the fact as
“this” or “that,” e.g., as “theft” or “fraud.” Interpretation is
relating a legal meaning to an event, or disclosing something
present as something meaningful (for short, hereinafter:
“something as something”).
Unfortunately, Kelsen does not further pursue his analysis of
“schemes of interpretation.” This stems from the fact that legal
norms function in two highly different ways in the Pure Theory,
namely as “schemes of interpretation” and as objects of
interpretation. In Kelsen’s view, legal interpretation concerns only
the latter; the former pertains to a far more general notion of
interpretation. While plausible at first sight, this assumption is
philosophically problematic. For the following question arises:
what is the common structure that allows qualifying any and all
acts of interpretation as interpretative acts, regardless of the object
of interpretation? More pointedly: does not the act of interpreting
a legal norm, qua interpretative act, necessarily disclose
“something as something,” thereby presupposing what might be
very broadly called a “scheme of interpretation”?
This question allows us to join Gadamer’s philosophical
hermeneutics. Indeed, Gadamer points the way to a more radical
approach to interpretation, suggesting that language “schematizes”
or “mediates” our access to the world.11 Reality is never given
directly but always as “this” or as “that.” Accordingly, activities so
disparate as science, art, religion, and law are all interpretative, in
this fundamental sense. Moreover, interpretation is not limited to
discursive activities, in the broadest sense of the term. Husserl, for
example, shows that perception is also a thoroughly interpretative
process, guided by “intentions of anticipation” of how things look,
feel, etc.12 Gadamer’s insight implies that there is no essential

10 KELSEN, PROBLEMS OF LEGAL THEORY, supra note 2, at 11.


11 See Hans-Georg Gadamer, Text and Interpretation, in DIALOGUE AND
DECONSTRUCTION: THE GADAMER-DERRIDA ENCOUNTER 28, 29 (Diane P.
Michelfelder & Richard E. Palmer eds., 1989).
12 See Edmund HUSSERL, EXPERIENCE AND JUDGMENT: INVESTIGATIONS IN A

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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difference, from the point of view of the structure of


interpretation, between the act of revealing an event as legally
meaningful and the act of elucidating the meaning(s) of a legal
norm. Both are specific instances of the general achievement of
interpretation, namely “understand[ing] something as
something.”13 Interpretation is a ubiquitous feature of the law, not
because it is specific to our relation to the law, but because it
denotes the way in which human beings have access to the world.
Therefore, what is required is to radicalize Kelsen’s insight
about the legal norm as a scheme of interpretation. To this end, I
will not dwell on the philosophical sources from which Kelsen
drew this notion. Instead, my strategy will be to develop a
conceptual framework that mediates between Kelsen’s original
insight and Gadamer’s philosophical hermeneutics. As Gadamer
only refers to the hermeneutic function of “schemes” at the highly
general level of language, this conceptual framework will have to
concretely elaborate this idea in relation to legal norms.
Let us begin by looking more closely at the notion of a
“scheme of interpretation.” Most generally, a scheme of
interpretation is a rule or measure that determines what we look
for and pick out in the world of events. The same idea can be
expressed by asserting that legal norms are criteria of normative
inclusion and exclusion. As such, legal norms embody the
fundamental distinction effected by every legal order, namely the
distinction between the legal and the non-legal. Indeed, the
founding act of a legal order brings about normative closure
whereby certain values are marked out for legal protection and
others are not. This partition establishes how a legal order
interprets reality: what it “sees” and does not “see.” Notice,
however, that the legal and the non-legal are not equivalent to,
respectively, the legal and the illegal. The legal, as per the first
distinction, encompasses both terms of the second distinction. In
effect, illegality denotes legality ex negativo: illegal acts are acts
subject to repression because they breach a legally protected
value. In short, whereas the legal encompasses values important
for the law, the non-legal refers to those that are not.
The distinction between the legal and the non-legal, without

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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which no legal order is possible, is a thoroughly ambiguous


achievement. On the one hand, it would be a mistake to view the
exclusion of values merely as a “privation” of legal order; first and
foremost, exclusion is a positive condition of legal interpretation.
Closure is a necessary condition for disclosure. In effect, the act of
revealing something as theft, testament, trust or whatever,
presupposes the normative distinctions introduced by legal
meanings and, ultimately, the closure that separates the legal from
the non-legal. Closure is indispensable for normative orientation
by the members of a community; in its absence, they would not
know how they ought to behave. On the other hand, the operation
of normative inclusion and exclusion implies that, in the very act of
revealing an event as legally significant, legal interpretation effects
a normative reduction of what it reveals. Disclosure is necessarily
a normative closure of the interpreted. Legal interpretation reveals
and conceals, actualizes a normative meaning by eliding other
possible meanings.
The values excluded by a legal order do not simply vanish into
thin air. They are marginalized; they remain at the fringes of
positive law, embodied in forms of behavior that retain the
potential of subverting the normative distinctions drawn by the
law. In short, the operation of inclusion and exclusion condemns
legal order to an irredeemable contingency. If no legal order can
establish itself without exclusion, exclusion guarantees that no
order ever succeeds in establishing itself definitively. The
instability and contingency of legal order are two sides of the same
coin.
These remarks allow us to introduce the fundamental
hermeneutic distinction between familiarity and strangeness into a
theory of legal interpretation. In general, familiarity refers to what
fulfills our expectations, what is understandable without further
contemplation, whereas strangeness concerns what we cannot
understand, what we cannot “place” within our expectations about
how things are ordered. As such, the experience of strangeness
throws us back onto our expectations, both making them explicit
and revealing them as inadequate to the situation at hand.
Familiarity and strangeness become modes of legal interpretation
on the basis of the distinction between the legal and the non-legal.
As a mode of legal interpretation, familiarity concerns material
facts that, by and large, “fit” into the mold of applicable legal
norms, regardless of whether these norms qualify such facts as
legal or as illegal.14 Strangeness first arises in cases where material

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

“objective presence” (Vorhandenheit) to characterize two different ways in which human


beings relate to tools. In the first, the “toolness” of a tool remains unthematic and taken
for granted in the process of being used in a practical activity. In the second, the
“toolness” of a tool is rendered thematic precisely when it does not “work,” e.g., when the
tool is missing, damaged, etc. The interruption of the practical activity in which a tool has
its function not only calls attention to the tool as a tool but also to the web of relations in
which it functions as such, i.e., the workplace to which it belongs. This web of practical
relations is a concrete illustration of what Heidegger calls a “world.” See MARTIN
HEIDEGGER, BEING AND TIME § 16 (Joan Stambaugh trans., State University of New
York Press 1996) (1953) (translation of Sein und Zeit). Drawing on this distinction, one
could say that the interruption of the reference of a normative scheme to what calls for
interpretation, such that the scheme appears as inapplicable, means that it forfeits its
“handiness,” appearing instead as “objective presence.” By the same token, the
inapplicability of the legal norm also renders thematic the legal order to which it belongs,
such that the way this order distinguishes between law and non-law loses its taken-for-
grantedness.
16 Two points should be kept in mind. First, pure familiarity and pure strangeness are

boundaries of (legal) interpretation, boundaries that can be approximated but never


reached; second, what calls for (legal) interpretation manifests itself as being
predominantly familiar or predominantly strange.
17 KELSEN, PROBLEMS OF LEGAL THEORY, supra note 2, at 85.
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Gadamer’s perspective, one could say that the disruption of legal


order marks the experience of misunderstanding—of
strangeness—that calls forth an interpretative process. From this
perspective, the two-fold negativity of uninterpretatibility of a
material fact and inapplicability of a correlative normative scheme
is a specific manifestation of the negativity of the hermeneutic
experience in general: “[E]xperience is initially always experience
of negation: something is not what we supposed it to be. In view of
the experience that we have of another object, both things
change—our knowledge and its object.”18
That a material fact does not “fit” into the criterion of
normative inclusion and exclusion defining a legal norm means
that the criterion’s claim to generality has become problematic.
Consequently, legal interpretation does not only disclose a
material fact as falling under a legal norm; its task is also to
reformulate the meaning of the applicable norm, in confrontation
with what subverts its claim to generality. To some extent, legal
interpretation always involves a two-way relationship between the
general and the particular. By implication, Kelsen’s account of the
legal order as a hierarchical normative order—the so-called
“Stufenbau”—requires an important correction. If, as Kelsen sees
it, the idea of a normative hierarchy is meant to show that the act
of setting the law depends on the higher-level norm, the hierarchy
also needs to be inverted to the extent that the higher-level norm
depends on the act of setting the law to establish its general
meaning. Law-setting both particularizes and generalizes; to

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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borrow Kant’s famous distinction, it is a judgment both


“determinative” and “reflective.”19
Two examples of law-setting—adjudication and legislation—
may help to illustrate this idea. Lawyers distinguish between
standard cases in which courts maintain a certain interpretation of
a legal norm, and landmark cases, wherein a court creates a rule.
Whereas in the former the applicability of the legal norm is not
seriously called into question, in the latter the state of affairs that
calls for legal qualification renders the applicable legal norm
problematic, leading the court to a new interpretation of this
norm. The distinction between these two cases is not, however,
absolute. On the one hand, every standard case requires at least a
minimal reformulation of the general legal norm, given the
changed context in which this norm must be applied. On the other
hand, a landmark case does not produce an entirely novel rule; it
reformulates a legal norm, applying it in a new way.20
If it is tempting to overlook the generalizing moment of legal
interpretation in adjudication, the opposite temptation holds for
legislation: forgetting the particularizing aspect of legal
interpretation. Indeed, by positing general norms, whether
substantive or procedural, every legislative act claims to apply
general values. Without this claim, legislation would forfeit its
claim to objectivity. To be sure, the ongoing debate about the
meaning of such values, and how they should obtain legal
expression, is at the root of politics. This simply indicates that, in a
continuous confrontation with what calls for legal interpretation,
the enactment of statutes can run the entire gamut—from
legislative fine-tuning to sweeping social reform. In both cases,

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

“presumptively necessary” conditions of validity of legal norms:


[N]o formulation, however detailed, of the institutive rule of an institution can
be taken as giving a complete list of sufficient conditions for the validity of a
purported instance of the institution, any more than as stating conditions each of
which is in all cases necessary. Any such formulation of a rule has to be read as
subject to possible further exceptions, has to be read, if we would be realistic, in
the light of relevant legal principles already established and of possible new ones
based on conceptions of the purpose of the institution in the context of changing
social conditions and values.
Neil MacCormick, Law as Institutional Fact, in NEIL MACCORMICK & OTA
WEINBERGER, AN INSTITUTIONAL THEORY OF LAW: NEW APPROACHES TO LEGAL
POSITIVISM 71 (1986).
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legal interpretation involves generalization and particularization.


Similarly, in both cases legal interpretation moves between
familiarity and strangeness.
Thus, legal interpretation unfolds a dialectic: to interpret a
material fact as “this” or “that” is also to change, to a lesser or
greater extent, the principle of interpretation—the legal norm.
The structure of legal interpretation is a specific instance of the
circularity that, according to Heidegger, characterizes
understanding in general.21 The very notion of a “scheme” of
interpretation suggests that legal norms anticipate the normative
meaning of material facts. In other words, legal norms deploy
what Heidegger calls the “fore-structure” of understanding. If
legal interpretation only confirmed the normative meanings
anticipated or projected by legal norms, it would spin endlessly in
a vicious circle. However, as Heidegger notes, the circularity of
understanding is not, as such, vicious; understanding what is given
for interpretation requires revising at least minimally the
anticipation that guides the process of understanding. Law is a
dynamic process, beyond Kelsen’s suggestion that lower-level
norms are created in the process of applying higher-level norms,
because the act of setting the law creates, to a lesser or greater
extent, the meaning of the very norm it applies.22

C. Implications

Taking seriously the idea that a legal norm is a “scheme of


interpretation,” and law-setting an interpretative act, demands that
Kelsen’s theory of legal interpretation be drastically revised. The
revision does not, however, stop here. Gadamer’s critique
requires amending several other key aspects and assumptions of
the Pure Theory of Law as well.

1. Interpreting the Law

Kelsen, as we have seen, deals with interpretation in what, at


first blush, are two entirely different contexts. The first concerns
the norm as a scheme for the normative interpretation of reality;

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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782 CARDOZO LAW REVIEW [Vol. 24:2

the second refers to the legal norm as an object of interpretation.


Having extensively commented on the former, let us now briefly
turn to the second. As noted in Part I.A, Kelsen’s account of the
interpretation of legal norms is thoroughly representationalistic: a
range of legal meanings is directly given to scientific cognition,
unmediated by the interpreter’s “subjective” interests. This is
precisely the point at which Gadamer’s critique sets in: far from
being an obstacle to interpretation, the interpreter’s situation
conditions the possibility thereof. Any attempt to
methodologically bracket this situation, aiming to gain a vantage
point that would assure unmediated access to an original meaning
or range of meanings, cuts off the very conditions that make
interpretation possible. Kelsen’s theory of legal interpretation is
blind to the hermeneutic productivity of the background
assumptions with which an interpreter necessarily approaches legal
norms, even in those cases in which application remains virtual.
These background assumptions are veritable “schemes of
interpretation.” Moreover, they include normative assumptions.
There is simply no value-free interpretation of the law. Thus, the
act of interpreting a legal norm unfolds the general structure of
interpretation that we have already analyzed with regard to the
legal interpretation of reality. Indeed, to interpret a legal norm is
to disclose “something as something,” to reveal a norm as
possessing this or that meaning. From Gadamer’s perspective, the
acts of legally interpreting human behavior and of interpreting a
legal norm differ only in terms of their object, not of their
structure. By implication, the objectivity of legal interpretation
cannot consist of suppressing the background assumptions that
give access to legal norms, but of rendering them thematic and
correcting them by what Paul Ricœur calls a “conflict of
interpretations.”23

2. Norm and Fact

A second critical revision of the Pure Theory concerns the


implications of legal contingency for the sharp distinction between
norm and fact, ought and is, in so far as it pertains to Kelsen’s
analysis of legal interpretation. The core of legal contingency, as
evidenced in the experience of strangeness, is not the simple
opposition between norm and fact, but the tension between these

23 See PAUL RICŒUR, THE CONFLICT OF INTERPRETATIONS: ESSAYS IN


HERMENEUTICS (Don Ihde ed., 1974).
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two terms. More precisely, contingency denotes a situation in


which the hard and fast distinction between norm and fact has
become problematic. On the one hand, the fact forfeits its
“factuality,” in the sense of a pre-normative state of affairs that
requires an interpretative act to acquire a normative meaning.
The material fact appears, in the experience of legal contingency,
as possessing a normative meaning of its own; a meaning that does
not coincide with the meaning anticipated or projected by the legal
norm. In other words, the fact appears as the index of another way
of distinguishing between law and non-law.
On the other hand, the experience of strangeness brings about
a certain “objectification” of the norm, in the sense of its becoming
a “fact.” For, as noted earlier, the inapplicability of the legal norm
in the experience of strangeness brings about the obtrusiveness of
the legal norm, which now appears as a scheme that does not
work. Contingency depletes the scheme’s normativity, such that it
proves to be in fact a norm, but no more than that, i.e., merely one
way, amongst others, of normatively interpreting reality.
Consequently, the experience of strangeness brings about a state
of indeterminacy between norm and fact—ought and is. Kelsen’s
sharp distinction between normative meaning and material fact
only holds for the boundary case in which the object of legal
interpretation is entirely familiar, a harmless “material” that
effortlessly fits into the scheme of interpretation. A situation in
which the object of legal ordering has ceased to be anything more
than a pure fact, the innocuous condition of an interpretative
process, signals a legal order that has succeeded in stabilizing itself
definitively.

3. Normative Limits

Kelsen’s reference to norms as a “frame” of meanings


obliquely points to the concept of the limit of legal interpretation,
although he does not successfully capture the hermeneutic
specificity thereof. This limit, as we have seen, concerns the
distinction between law and non-law. In this perspective, legal
contingency denotes the situation in which the legal is no longer
merely legal, nor the non-legal only non-legal. More precisely,
values that hitherto appeared as legal also manifest themselves as
non-legal, i.e., as no longer deserving of protection by the legal
order, and non-legal values now appear as legal, i.e., as deserving
of protection. In short, the limit between law and non-law,
“inside” and “outside,” familiarity and strangeness, becomes
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indeterminate. The corresponding act posits—determines—anew


the limit between law and non-law. To the extent that the
interpretative act involves a dialectic, that is, changes the
normative scheme of interpretation in the process of interpreting
reality, the act shifts the limit between law and non-law, between
the interior and the exterior of a legal order. Accordingly, the
dialectic of legal interpretation points to a normative limit that can
be shifted, i.e., widened or narrowed, by reformulating the scope of
a legal norm, a legal institution or a fundamental value of the legal
order.

4. Identity

The experience of legal contingency offers a privileged


vantage point to evince the intimate connection between legal
interpretation and the identity of a legal order. The subversion of
a legal order necessarily confronts the order with its own concrete
possibilities. Kelsen comes closest to putting his finger on the
internal connection between interpretation and identity in the
following passage of the second edition of the Reine Rechtslehre:
“The doctrine of the hierarchy of the legal order comprehends the
law in motion, in its perpetually renewed process of self-creation
[self-regeneration].”24 Yet Kelsen fails to raise the decisive
question: why is the creation of legal norms a process of self-
creation? What justifies treating the identity of a legal order as a
reflexive relation, thus, in terms of ipseity?
The answer to this question, from the perspective of
Gadamer’s philosophical hermeneutics, is that the act of positing a
legal norm always involves taking up a relation to a broader or
narrower range of possibilities as the legal order’s own
possibilities. Having to take up a relation to possibilities is
precisely what characterizes ipseity. In a lapidary formulation,
Gadamer puts it as follows: “In the last analysis, all understanding
is self-understanding.”25 Notice, furthermore, that the relation to
self does not exhaust the relations unfolded by legal interpretation.
In effect, the self-relation of a legal order goes hand in hand with a
relation to reality. The act of taking up a relation to a broader or
narrower range of possibilities as the legal order’s own possibilities
is also, and necessarily, the act of qualifying an event normatively.

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

ed. & trans., 1976).


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Accordingly, these two relations are co-original: The legal


interpretation of reality is perforce the self-interpretation of a legal
order and its own possibilities; conversely, no self-interpretation of
a legal order is possible other than in an interpretation of reality.
The picture is not complete, however, as these two relations
imply a third relation, namely a relation to other. The material
fact—reality—is never only the innocuous presupposition of an
interpretative process; to a lesser or greater extent, it embodies
another possible legal order, another way of drawing the distinction
between law and non-law. There is no relation to self—no “self-
creation” of a legal order, to borrow Kelsen’s expression—without
a concomitant relation to other. More simply, no legal community
can call itself a “we” other than in relation to a “they.” This
relationship, and the terms in which the distinction between “we”
and “they” has been drawn, remains taken for granted in
familiarity. By contrast, the experience of strangeness not only
reveals that the reference of a community to itself as a “we” is
problematic, but also that the very possibility of its self-reference is
radically dependent on the other and, thus, a “they.” Whereas
familiarity risks hypostatising the identity of a legal community,
strangeness exposes the relational character thereof. Yet more
forcefully, strangeness marks the moment of danger and
opportunity for the self-understanding—the identity—of a legal
community.
From this perspective, the instability of legal order has two
faces: strangeness can subvert the legal order’s claim to generality,
revealing the law as contingent; and the act of positing the law
cannot but take up a relation to the legal order’s possibilities, even
in those cases where, ignoring the subversiveness of the strange,
the act confirms the existing partition of the legal and the non-
legal.
To conclude this point, let us return to Kelsen’s reference to
law-setting as a “relating.”26 Our question initially concerned the
kind of relation brought about by law-setting. The foregoing
analysis can be seen as a progressive radicalization of that
question. All the lines of our inquiry converge in the following
idea: the act that discloses something as legally meaningful unfolds
a relation to self, to reality and to other. This three-fold, co-
original reference determines legal interpretation as a “bringing
into relation”27 (in Beziehung bringen).

26 See discussion supra Part I.B.


27 See supra note 10 and accompanying text.
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5. Subjectivity and Objectivity

It is fitting that we end this section with some remarks about


subjectivity and objectivity, as this problem dominates Kelsen’s
approach to legal certainty and his misguided “frame” theory of
legal norms. This conclusion is all the more apposite if we bear in
mind that, as Stanley L. Paulson has pointed out, Kelsen’s view on
legal interpretation undergoes an important alteration in his late
work.28 Having consistently held the view that legal interpretation
aims to map the “frame” of normative possibilities available to a
legal norm, Kelsen suddenly asserts that authentic interpretation
may give rise to a legal norm “which lies entirely outside the frame
of the norm to be applied.”29 Paulson notes that this comment
underscores Kelsen’s heightened awareness of the problem of
indeterminacy for legal cognition.30 In effect, the aforementioned
assertion shows that this problem is no longer limited to
ascertaining which of the meanings within the normative frame
will be applied by the legal authority; it suggests, more
fundamentally, that “there is no way dispositively to settle where
the line of demarcation falls in establishing the scope of the
norm.”31 As Paulson sees it, this radicalization of the problem of
indeterminacy anticipates Kelsen’s shift toward a “will” theory of
law in his late work.
A discussion of Kelsen’s difficult will theory of law is not
pertinent for purposes of this paper. What interests me, rather, is
that, from Gadamer’s perspective, Kelsen’s analysis of the
problem of indeterminacy is informed by a representationalistic
conception of legal interpretation. The devastating insight that a
posited legal norm could lie “entirely outside” the applied
normative frame continues to presuppose that the legal norm—as
a frame of meanings—is a closed and unchanging corpus of
meanings, awaiting discovery and ordering by legal cognition. To
put it another way, the crisis of the frame theory of norm is the
crisis of a representationalistic view on the distinction between
subjectivity and objectivity.
Gadamer’s alternative to representationalism is lucid:
subjectivity and objectivity in the law cannot be understood
independently of the mediated character of the human relation to
reality. The very possibility of both objectivity and subjectivity in

28 Paulson, supra note 5, at 150.


29 KELSEN, PURE THEORY OF LAW, supra note 1, at 354 (emphasis added).
30 Paulson, supra note 5, at 151.
31 Id.
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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

well-known defense of the theory of “original understanding” in constitutional


adjudication is an attempt to account for the distinction between subjectivity and
objectivity in the law within the framework of a representationalistic theory of
interpretation. As he puts it:
When we speak of “law,” we ordinarily refer to a rule that we have no right to
change except through prescribed procedures. That statement assumes that the
rule has a meaning independent of our own desires. . . . It is a necessary
implication of the prescribed procedures that neither statute nor Constitution
should be changed by judges.
ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE
LAW 143 (1990). Gadamer’s objection would be that while the meaning of the law is not
and cannot be independent of the act that interprets the law, this does not imply
subordinating the law to the “subjective desires” of the judge. The judge is indeed
committed to “preserv[ing] the Constitution,” as Bork puts it, id. at 159, but this is a
commitment to preserving the Constitution’s claim to generality.
33 See GADAMER, TRUTH AND METHOD, supra note 18, at 387.
34 Id. at 379.
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II. REVOLUTION

We reach here the point of greatest distance with respect to


Kelsen’s theory of interpretation; this is also the turning point of
our inquiry, in the sense of a reversal of critical perspectives.
Indeed, closer scrutiny of legal interpretation raises several
questions with respect to Gadamer’s philosophical hermeneutics.
First, Gadamer’s analysis does not sufficiently take into account
that the positions within and without a legal order are
asymmetrical: an authority within the legal order determines the
conditions under which what has been excluded from the law may
be admitted into the legal order. More pointedly, the asymmetry
manifests itself in that a legal authority decides whether what calls
for legal interpretation is familiar, strange or simply irrelevant.
The legal institutionalization of this moment of decision cannot be
adequately accounted for in terms of a “dialogue” (Gespräch).35
Second, although legal interpretation transforms legal order, this
does not justify the further assumption that the hermeneutic
redefinition of a legal order’s claim to generality—Allgemeinheit—
results in a communion—Gemeinsamkeit—between the legal order
and what subverts it. While the dialectic of legal interpretation
can include what has been excluded, this does not imply that what
subverts the law is rendered legal in its own terms, such that, to use
Gadamer’s metaphor, the legal and the non-legal “fuse” into a
higher-order whole. Third, and closely bound to the former point,
legal interpretation does not merely integrate the strange into legal
order; it also always neutralizes strangeness, leveling down the
extraordinary to a variation of the ordinary. To lose sight of this is
to strip strangeness of its ambiguity, collapsing the threat posed by
subversion into a mere opportunity for legal change.
These issues will not be pursued in the coming section, or at
least not directly. The turning point of our inquiry has been
reached above all because Kelsen’s theory of the basic norm sheds
light on a fundamental shortcoming of Gadamer’s approach to
subjectivity and objectivity in his account of legal interpretation.

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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A. Gadamer on Legal Interpretation

We can be brief in presenting Gadamer’s discussion of legal


interpretation, for its contours have already been dealt with in the
foregoing section. What is important, rather, is pinpointing where,
from the perspective of the Pure Theory of Law, the project of a
philosophical hermeneutics falls short of giving a radical account
of the “hermeneutic problem” in the law.
Primarily, legal interpretation has a paradigmatic significance
for Gadamer’s philosophical hermeneutics because it reestablishes
the intimate connection between interpretation and application
that had been severed by the methodological approach of the
historical school. In its effort to secure scientific objectivity for
these sciences, the methodological approach to interpretation
brackets the question concerning the meaning of the text or
historical tradition for the situation of the interpreter. Essentially,
it factors out the moment of “application” inherent to
interpretation. Legal practice, Gadamer points out, has always
resisted this move, for the jurist or the judge must approach legal
texts from the perspective of their application to the case at hand.
Accordingly, legal interpretation offers a privileged vantage point
for recovering the fundamental hermeneutical problem:
“Application does not mean first understanding a given universal
in itself and then afterward applying it to a concrete case. It is the
very understanding of the universal—the text—itself.”36
The burden of Gadamer’s analysis is to demonstrate that
application cannot be understood purely as an act of “subsuming”
a particular under a general. Rather, applying a rule or statute
involves newly discovering the meaning of the law in light of the
situation to which it must be applied. This act is both productive
and reproductive; as Gadamer puts it, application is always a
“creative supplementing of the law.”37 Thus, the legal notion of
application is paradigmatic because it reveals the hermeneutic
circularity at work in our access to the world. We find here, in an
extremely concise formulation, the central insight about the
dialectic of legal interpretation that we developed beginning from
Kelsen’s reference to the legal norm as a “scheme of
interpretation.”
Significantly, in the same breath by which Gadamer evinces
the structure of application, he also parries the charge of

36 GADAMER, TRUTH AND METHOD, supra note 18, at 341.


37 Id. at 329.
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790 CARDOZO LAW REVIEW [Vol. 24:2

arbitrariness, as though he were speaking directly to Kelsen about


legal certainty. He states:
The creative supplementing of the law . . . is a task
reserved to the judge, but he is subject to the law in the same
way as is every other member of the community. It is part of
the idea of a [legal order] that the judge’s judgment does not
proceed from an arbitrary and unpredictable decision, but from
the just weighing up of the whole.38
The substance of Gadamer’s argument against Kelsen is that
taking account of the concrete situation in which the norm must be
applied does not introduce an element of subjectivity into legal
interpretation. Rather, he counters by asserting that not taking
account of the concrete situation of norm-application is to fall prey
to subjectivity. In other words, the theoretical and practical
problem of legal certainty can only be adequately addressed if one
does not sever, as Kelsen does, the internal connection between
application and interpretation.
Not surprisingly, Gadamer’s notion of application has greatly
influenced jurisprudential discussions of legal interpretation.
Ronald Dworkin, for instance, underscores its importance by
arguing for what he calls a “constructive” concept of
interpretation.39 In Dworkin’s sense of the term, the constructive
character of legal interpretation is intimately bound with
“Gadamer’s crucial point, that interpretation must apply an
intention.”40 Dworkin returns only a few pages later to Gadamer’s
“interpretative situation,” arguing that the interpreter’s critical
appropriation of the past is germane to legal hermeneutics.
This summary reference to Dworkin may suffice to show that
Gadamer’s philosophical elaboration of the concept of application
has been a chief source of inspiration for anti-positivistic theories
of law and legal interpretation. But how far does Gadamer’s
analysis take us in terms of a critique of legal positivism? In
particular, is this critique the final word about the Pure Theory of
Law’s contribution to a theory of legal interpretation?
Gadamer’s discussion of the judicial application of norms is
not only the point at which his critique of Kelsen is most
convincing but also, and paradoxically, the point at which the Pure

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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Theory of Law turns the tables on the project of a philosophical


hermeneutics. Consider once again the aforementioned quote
from Gadamer: “It is part of the idea of a legal order that the
judge’s judgment does not proceed from an arbitrary and
unpredictable decision . . . .” The Kelsenian question about this
passage is what determines an order as a “legal order”? Under
what conditions can we speak at all about an individual as a
“judge,” as a legal authority? Lastly, under what conditions can we
speak of the applicable norm as a “statute” (Gesetz), i.e., as a legal
norm?
These penetrating questions expose a fundamental
presupposition that has remained hidden throughout the foregoing
discussion of legal interpretation. In effect, it was only possible to
describe the circularity involved in each act of legal interpretation
by presupposing legal order. When we focused on the legal norm
as a “scheme of interpretation,” we took for granted that this
scheme is a legal meaning. Here then is the problem: the
foregoing inquiry has uncovered the structural moments of legal
interpretation, but it has not explained what determines these as
moments of legal interpretation. To put it in terms closer to
Gadamer himself, the foregoing analysis takes for granted, in view
of adumbrating the world of legal understanding, the world of legal
understanding. Returning to Gadamer, surely this has to be part
of the “hermeneutic problem” in the law.

B. The Basic Norm and the “Universality” of Hermeneutic


Experience

This is the juncture at which Kelsen’s theory of the basic norm


(Grundnorm) is of great interest to a theory of legal interpretation.
For the basic norm addresses the following question: under what
conditions can meaning be interpreted as legal meaning? This
question can also be formulated in terms of the act of law-setting:
Under what conditions can an act be interpreted as an act of
setting the law? 41

41 I make no claim of providing an exhaustive treatment of Kelsen’s theory of the basic

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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At first glance, Kelsen’s answer is trivial: an act sets the law if


it follows a legal norm. For example, the act that orders an
individual to pay a sum of money, on pain of seizure of his or her
goods, can be interpreted as a judicial decision, rather than as the
command of a gangster, because the act follows a higher norm, e.g.
a statute. In turn, an act is a legislative act, i.e., posits the relevant
statute, because it follows yet a higher norm, a constitution, which
itself may have been created in accordance with the rules set down
in an earlier constitution. This regressive inquiry eventually leads
back to the historically first constitution of a legal order. What
determines the enactment of this first constitution as law-setting
cannot be the sheer fact of its enactment, as this would be
equivalent to deriving an “ought” from an “is.” Rather, the
determining factor is a higher—the highest—norm of a legal order:
“One ought to behave as the [first] constitution prescribes.”42
Kelsen asserts that, by definition, this basic norm cannot be “set”
(gesetzt) by a legal authority, but must be “presupposed”
(vorausgesetzt), if an “ought” is to be interpreted as the first
constitution, and an act as the enactment of the first constitution.43
Although highly abridged, this presentation of the theory of
the basic norm suffices for our purposes. Notice, to begin with,
that the regression from the act of positing a legal norm to the
presupposed basic norm clarifies in what sense the legal
interpretation of reality always involves the understanding of a
“legal world.” Kelsen’s key insight, in this respect, is that it is
impossible to establish what defines an act as setting the law if this
act is envisaged in isolation from other such acts. The
interpretation of an act as law-setting necessarily involves,
implicitly or explicitly, the co-interpretation of a series of other
acts as acts of positing the law. To interpret an individual act as
law-setting is to surpass—transcend—this act, in the direction of
the norm(s) it applies and, ultimately, the basic norm that grounds
the legal order as a whole. Thus, I read the theory of the basic
norm as laying bare the structure of transcendence characteristic
of interpretation in general and legal interpretation in particular:
to look at a material fact, disclosing it as something, is also to look
beyond the fact, at the legal order as a whole. This returns us to
what we have already learned: in addition to a reference to

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

simplified formulation of the basic norm, which omits reference to sanctions as a


constitutive element of legal norms.
43 See KELSON, PROBLEMS OF LEGAL THEORY, supra note 2, at 58; KELSON, PURE

THEORY OF LAW, supra note 1, at 199.


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another, legal interpretation always actualizes references to reality


and to the legal order. To relate a meaning, as a legal meaning, to
a material fact is to actualize this twofold relation. The legal
comprehension of reality involves the pre-comprehension of a legal
world, which means, from Kelsen’s perspective, that whoever
discloses something as possessing a legal meaning presupposes the
basic norm of the apposite legal order.
The contribution of Kelsen’s theory of the basic norm to our
topic goes considerably further than this. It also suggests that an
inquiry into the conditions of possibility of interpretation as legal
interpretation requires an inquiry into the genesis of a legal world.
“A” legal world, I say, and decidedly not the legal world, because
the first constitution of a legal order and the first act of setting the
law are never such in the absolute sense of the term, that is to say,
the original production of law. There is no historical threshold
where non-law gives way to law, no pre-juridical phase in human
history that could be identified or described; the “first”
constitution of a legal order always follows on the ruins of an
earlier legal order. Accordingly, the destruction and production of
legal order are the two faces of a single event, namely a normative
rupture. By the same token, a concrete analysis of the conditions
of possibility of legal interpretation must look retrospectively to a
legal order’s genesis and prospectively to the founding act of the
legal order that replaces it.
In a remarkable analysis of legal revolution, Kelsen succeeds
in capturing the essential features of this twofold process of
destruction and production. The setting he imagines is the attempt
by a band of revolutionaries to overthrow a monarchy and install a
republican form of government:
If the revolutionaries succeed, the old system ceases to be
effective, and the new system becomes effective, because the
actual behaviour of the human beings for whom the system
claims to be valid corresponds no longer to the old system but,
by and large, to the new system. And one treats this new
system, then, as a legal system, that is to say, one interprets as
legal acts the acts applying the new system, and as unlawful acts
the material facts violating it. One presupposes a new basic
norm, no longer the basic norm delegating lawmaking authority
to the monarch, but a basic norm delegating lawmaking
authority to the revolutionary government. If the
revolutionaries were to fail because the system they set up
remained ineffective . . . then the initial act of the
revolutionaries would be interpreted not as the establishing of a
constitution but as treason, not as the making of law but as a
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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

Whereas the subversion of legal order sparks a dialectic that


shifts the divide between the legal and the non-legal, a
fundamentally different picture emerges with the overthrow of
legal order. Kelsen’s analysis reveals that the essence of legal
revolution is what might be called interpretative
incommensurability. The problem is not that the act of the
revolutionaries cannot be interpreted within the legal order they
attempt to overthrow; it is that this material fact can only be
interpreted as treason. The act’s interpretability within the legal
order—as treason—goes hand in hand with the act’s radical
uninterpretability—as constitution-making—within the same
order. Conversely, the revolutionary interpretation of the act of
overthrowing a legal order cannot be other than constitution-
making, without betraying its claim to being the founding act of a
legal order. Revolution confronts a legal order with an act that is
both entirely familiar—as the expression par excellence of
illegality—and entirely strange—as the extreme form of
danger/possibility. From this perspective, Kelsen would have done
better to speak of “terrorism” rather than of “treason,” as the
former better expresses the revolutionary condition of extreme
familiarity and strangeness confronting a legal order.
This insight implies a radical critique of Gadamer’s central
claim concerning the universality of the hermeneutic experience.
According to his perspective, the hermeneutic experience may
raise claim to universality because it underlies all forms of the
human relation to the world:
There is always a world already interpreted, already organized
in its basic relations, into which experience steps as something
new, upsetting what has led our expectations and undergoing

44 KELSEN, PROBLEMS OF LEGAL THEORY, supra note 2, at 59.


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reorganization itself in the upheaval. Misunderstanding and


strangeness are not the first factors . . . . Just the reverse is the
case. Only the support of familiar and common understanding
makes possible the venture into the alien, the lifting up of
something out of the alien, and thus the broadening and
enrichment of our own experience of the world.45
Kelsen’s account of revolution as interpretative
incommensurability suggests, to the contrary, that no
encompassing point of view can bridge the interpretative abyss
between treason and constitution-making; no dialectic succeeds in
integrating the revolutionary act into the legal order. Revolution
brings to a halt hermeneutic experience as the dialectic of
generality and particularity within a legal order.

2. Normative Limits

To put it another way, revolution confronts legal


interpretation with its limit, in a strong sense of the term. As
aforementioned, the dialectic of legal interpretation points to a
first normative limit, a limit that can be shifted, i.e., widened or
narrowed. This notion of limit is related to the range of concrete
normative possibilities available to, and exposed by, the process of
legal interpretation. Interpretative incommensurability points to a
second limit of interpretation, namely a normative limit that
cannot be shifted, but only overstepped, and, when overstepped,
leads to another legal order. To interpret the act of the republican
revolutionaries as constitution-making, instead of as treason, is not
to widen the scope of legality by exploiting the normative
possibilities of the monarchical legal order they aim to overturn; it
is to step out of one legal order and into another.46 The
interpretative gap separating treason and constitution-making
illustrates the radical unintelligibility that characterizes a
normative rupture: what cannot be said in one legal order can only
be said by entering another order. To “presuppos[e] a new basic
norm” is to go, like Alice, through the looking glass.

3. Truth and Violence

Kelsen’s analysis of revolution brings into focus another limit

45GADAMER, supra note 25, at 15.


46See BERNHARD WALDENFELS, Auf der Schwelle zwischen Drinnen und Draußen:
Phänomenologische Grenzbetrachtungen, in DER STACHEL DES FREMDEN 31 (1990).
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to the universality of hermeneutic experience, one that is the


mirror image of the “end” of interpretation within a legal order.
Gadamer suggests in the aforementioned citation that familiarity,
not strangeness, is what comes “first.” As I see it, Kelsen’s
discussion of the act that sets the “first” constitution suggests that
what comes “first” is neither familiarity nor strangeness, but an act
that differentiates between familiarity and strangeness, between law
and non-law, between “we” and “they.” By definition, this “first”
act cannot be justified, to use Gadamer’s words, by reference to “a
[legal] world already interpreted, already organized in its basic
relations.”47
This insight raises the delicate question concerning the
relation between truth and violence in law. By including certain
values and excluding others, the founding act creates the
conditions for legal interpretation and for truth. Solely by virtue of
the normative closure that inaugurates a legal order can
interpretation disclose material facts as possessing “this” or “that”
legal meaning. As is well known, Gadamer’s discussion of truth in
Truth and Method relies on Heidegger’s characterization of
“disclosure” as the fundamental meaning of truth, a meaning that
lies at the basis of the latter’s traditional definition as the
“correspondence” between reality and judgment.48 Consequently,
each act of disclosing something as something within a legal order
leads back to, and re-enacts, the act of normative inclusion and
exclusion that founds this order.
This fundamental achievement of the inaugural act of law-
setting is no innocent undertaking. Kelsen notes, in this respect,
that the revolutionary coup d’état either “succeeds” or “fails” in its
attempt to overthrow the monarchical legal order. The
significance of this point goes well beyond the specific example
envisaged by Kelsen: an order of positive law never merely fades
away; nor do old soldiers, for that matter. Rather, it is always
more or less forced aside by a new legal order. Although the
founding act claims to express core values of the community and,
thus, to be legitimate, this claim is not and cannot be derived from
the legal order it replaces; to the contrary, it sets itself off from,
and imposes itself against, the latter’s claim to legitimacy.
Accordingly, I view Kelsen’s theory of the basic norm as
highlighting the ambiguity of the capacity to commence things
deployed by the pouvoir constituant, where the reference to
“capacity” precedes any evaluation, whether positive or negative,

47 See GADAMER, supra note 25.


48 See HEIDEGGER, supra note 15, § 44. See also Was ist Wahrheit?, in GADAMER,
supra note 21, at 44.
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of power. Certainly, the idea of a pure commencement in


politics—a creatio ex nihilo of legal order—is untenable. Yet the
exercise of constituting power must be understood as an act of
seizing the initiative. On the one hand, the act that gives rise to a
legal order opens up a common space that enables individuals to
recognize themselves as members of one and the same community;
on the other, the impetus that is required to set something new on
its way always involves a rupture, a breach, and, in this sense, an
inevitable moment of violence. To “seize” and to “commence” are
the two faces of the act that gives birth to a legal order.49
From this perspective, Kelsen can be seen as unfolding a
radical critique of Gadamer’s concept of authority. According to
Gadamer, “acknowledging authority is always connected with the
idea that what the authority says is not irrational and arbitrary but
can, in principle, be discovered to be true.”50 This view conceals
the irredeemable ambiguity of legal authority. Kelsen’s profound
insight, as I see it, is that violence lies at the genesis of legal truth,
even though truth in law does not simply coincide with violence.
By implication, violence is not limited to the inaugural act of a
legal order; it remains at work in all acts that authoritatively set
the law. Kelsen’s analysis of the genesis of legal order shows,
counter to Gadamer, that the ambiguity of legal authority resides
in the fact that truth and violence are never entirely separable in
the legal act of disclosing something as something.

4. Avoiding Reification

Finally, the reference to violence and truth in the law leads to


the nub of Kelsen’s contribution to a theory of legal interpretation.
Precisely because might intervenes in the act of setting the first
constitution, only the presupposition of the basic norm grants this
act the character of right, of law-setting. Kelsen thus approaches
what I take to be the defensible aspect of Jacques Derrida’s
critique of Gadamer. In his initial response to Gadamer’s
important article, Text and Interpretation,51 Derrida focuses,
amongst others, on Gadamer’s thesis of a “continuity” of meaning
unfolded in understanding. In an extremely terse response, on

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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which he does not further elaborate, Derrida asks whether


interpretation should not rather be viewed in terms of rupture,
fracture, and discontinuity.52 Would not Kelsen’s analysis of the
genesis of a legal order lend credence to Derrida’s critique, in the
sense that every order of positive law is radically contingent
because legal interpretation always moves on this side of a
normative rupture that cannot be “closed” interpretatively from
within the order itself? On this reading of the significance of the
basic norm, Kelsen stands not only surprisingly close to Derrida
but also to Heidegger, Merleau-Ponty, and Foucault. In different
ways, each of these philosophers has shown that the event that gives
rise to an order is not a part of the order itself. I read Kelsen as
arguing that the basic norm is the condition whereby, retroactively,
the founding act can be viewed as being part of the legal order it
creates. Ultimately, the basic norm is a way of both highlighting
and dealing with the internal contradiction involved in referring to
a “first constitution.”
Thus, the theory of the basic norm can be understood as an
antidote to the reification of legal interpretation. Indeed, the
danger of reification lurks in the genesis of legal order.
Interpretation becomes reified when an act is seen as possessing of
itself the character of the founding act of a legal order and when
the meaning of this act is seen as being of itself a legal meaning,
namely the first constitution of a legal order. Kelsen’s theory of
the basic norm is anything but the rationalization of an order of
positive law, as many of his critics would have us believe; instead,
the basic norm is his way of calling attention to the irrefragable
ambiguity of the founding act of a legal order, an ambiguity that
remains “at work” in all subsequent acts of legal interpretation
within the order.
The main irony of a confrontation between Gadamer and
Kelsen may well be that whereas the former’s question, “What
defines legal interpretation as interpretation?”, exposes the
positivistic presuppositions of the latter’s theory of interpretation,
Kelsen’s question, “What determines interpretation as legal
interpretation?”, reveals that Gadamer ultimately succumbs to a
form of legal positivism.

52 See Jacques Derrida, Three Questions to Hans-Georg Gadamer, in DIALOGUE AND

DECONSTRUCTION: THE GADAMER-DERRIDA ENCOUNTER 52-54. This theme also lies


at the heart of Jacques Derrida, Force of Law: The “Mystical Foundation of Authority”, 11
CARDOZO L. REV. 919 (1990).

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