You are on page 1of 320

Law and Philosophy Library 118

PeterLangford
IanBryan
JohnMcGarry Editors

Kelsenian
Legal Science
and the
Nature of Law
Law and Philosophy Library

Volume 118

Series editors
FranciscoJ.Laporta, Autonomous University of Madrid,Spain
FrederickSchauer, University of Virginia,USA
TorbenSpaak, Stockholm University,Sweden

Editorial Board
AulisAarnio, Secretary General of the Tampere Club,Finland
Humbertovila, University of So Paulo,Brazil
ZenonBankowski, University of Edinburgh,UK
PaoloComanducci, University of Genoa,Italy
HughCorder, University of Cape Town,South Africa
DavidDyzenhaus, University of Toronto,Canada
ErnestoGarznValds, Johannes Gutenberg Universitat,Germany
RiccaroGuastini, University of Genoa,Italy
HoHockLai, National University of Singapore, Singapore
JohnKleinig, City University of NewYork,USA
ClaudioMichelon, University of Edinburgh,UK
PatriciaMindus, Uppsala University,Sweden
YasutomoMorigiwa, Meiji University,Japan
GiovanniBattistaRatti, University of Genova,Italy; University of Girona,Spain
WojchiechSadurski, University of Sydney,Australia
HoracioSpector, University of San Diego,USA; Universidad Torcuato Di Tella,
Argentina
RobertS.Summers, Cornell University,USA
MichelTroper, Universit de Paris Quest- Nanterre,France
CarlWellman, Washington University,USA
The Law and Philosophy Library, which has been in existence since 1985, aims to
publish cutting edge works in the philosophy of law, and has a special history of
publishing books that focus on legal reasoning and argumentation, including those
that may involve somewhat formal methodologies. The series has published
numerous important books on law and logic, law and artificial intelligence, law and
language, and law and rhetoric. While continuing to stress these areas, the series has
more recently expanded to include books on the intersection between law and
theContinental philosophical tradition, consistent with the traditional openness of
the series to books in the Continental jurisprudential tradition. The series is proud of
the geographic diversity of its authors, and many have come from Latin America,
Spain, Italy, the Netherlands, Germany, and Eastern Europe, as well, more obviously
for an English-language series, from the United Kingdom, the United States,
Australia, and Canada.

More information about this series at http://www.springer.com/series/6210


Peter LangfordIan BryanJohn McGarry
Editors

Kelsenian Legal Science


and the Nature of Law
Editors
Peter Langford Ian Bryan
Department of Law and Criminology Lancaster University Law School
Edge Hill University Lancaster University
Ormskirk, UK Lancaster, UK

John McGarry
Department of Law and Criminology
Edge Hill University
Ormskirk, UK

ISSN 1572-4395 ISSN 2215-0315(electronic)


Law and Philosophy Library
ISBN 978-3-319-51816-9ISBN 978-3-319-51817-6(eBook)
DOI 10.1007/978-3-319-51817-6

Library of Congress Control Number: 2017932650

Springer International Publishing AG 2017


This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation,
broadcasting, reproduction on microfilms or in any other physical way, and transmission or information
storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the
editors give a warranty, express or implied, with respect to the material contained herein or for any errors
or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims
in published maps and institutional affiliations.

Printed on acid-free paper

This Springer imprint is published by Springer Nature


The registered company is Springer International Publishing AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Acknowledgements

We are indebted to Neil Olivier, Diana Nijenhuijzen, Christi Jongepier-Lue and


their colleagues in the editorial team at Springer, for their assistance, support and
patience regarding the preparation and submission of the manuscript. We would
also like to express our gratitude to the contributors to this volume both for their
support for our project and for their discerning, stimulating and innovative contribu-
tions. We would like, furthermore, to thank the Austrian Cultural Forum, the cul-
tural arm of the Austrian Embassy in London, and Edge Hill University, for the
financial support which enabled the Hans Kelsen and the Natural Law Tradition:
An International, Interdisciplinary Conference to take place. Many of the chapters
in this volume are developed from papers first presented at the Conference, hosted
at Edge Hill University, UK, in September 2013.
In addition to the aforementioned, Peter would like to acknowledge and thank all
his friends for their interest and encouragement and to thank his father for his sup-
port throughout this book project. Ian would like to express his profound gratitude
to family and friends for their insightful comments, cordial forbearance and unfail-
ing kindness. John would like to thank his family, Clare, Joe, Joan and Ken for their
support and patience.

May 2016 PeterLangford


IanBryan
JohnMcGarry

v
Contents

1 Introduction: Kelsen, Legal Science andPositive Law 1


Peter Langford, Ian Bryan, and John McGarry

Part I Legal Science Before the Tribunal of Validity


2 Kelsen andtheProblems oftheSocial Fact Thesis  23
Lorenz Khler
3 Natural Law andtheNature ofLaw: Kelsens Paradox 43
Pierre-Yves Quiviger

Part II Beyond Natural Law?


4 Natural Law Systematics: Is There aGrundnorm
inNatural Law?  57
Claes Peterson

Part III Kelsens Constitutionalism


5 Kelsen andContemporary Constitutionalism:
TheContinued Presence ofKelsenian Themes 75
Paolo Carrozza
6 Constitutionalism andValue-Free Method: Kelsens Legacy
inContemporary Challenges 99
Valeria Giordano

Part IV Against Practical Reason


7 Hans Kelsen andPractical Reason  121
Francesco Viola

vii
viii Contents

8 Kelsen andLegal Interpretation 141


Isabel Lifante Vidal
9 Validity andCorrectness inKelsens Theory
ofLegal Interpretation 153
Jos Manuel CabraApalategui

Part V Legal Science and Human Rights


10 Hans Kelsens Works andtheModern Theories
ofHuman Rights 173
Vronique Champeil-Desplats
11 Kelsen onDemocracy inLight ofContemporary
Theories ofHuman Rights 193
Christine Chwaszcza
12 Individual Sovereignty: FromKelsen totheIncrease
intheSources oftheLaw 213
Francescomaria Tedesco

Part VI The Triumph of Legal Science?


13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine  241
John McGarry
14 Kelsen onNatural Law andLegal Science 257
Jan Sieckmann
15 Kelsen andNatural Law Theory: AnEnduring Critical Affair 275
Pierluigi Chiassoni
16 Conclusion: Positive Law andtheKelsenian Project  303
Peter Langford, Ian Bryan, and John McGarry
Contributors

IanBryan Lancaster University Law School, Lancaster University, Lancaster, UK


JosManuelCabraApalategui University of Mlaga, Mlaga, Spain
PaoloCarrozza Institute of Law, Politics and Development, SantAnna School of
Advanced Studies, Pisa, Italy
Vronique Champeil-Desplats Paris Ouest-Nanterre-La Dfense University,
Paris, France
PierluigiChiassoni Department of Law, University of Genoa, Genoa, Italy
ChristineChwaszcza Department of Philosophy, University of Cologne, Cologne,
Germany
ValeriaGiordano Department of Legal Science, University of Salerno, Salerno,
Italy
LorenzKhler Faculty of Law, University of Bremen, Bremen, Germany
Peter Langford Department of Law and Criminology, Edge Hill University,
Ormskirk, UK
Isabel Lifante Vidal Faculty of Law, Department of Philosophy of Law and
Private International Law, University of Alicante, Alicante, Spain
John McGarry Department of Law and Criminology, Edge Hill University,
Ormskirk, UK
ClaesPeterson Department of Law, University of Stockholm, Stockholm, Sweden
Pierre-Yves Quiviger Department of Philosophy, University of Nice Sophia-
Antipolis University of Cte dAzur, Nice, France

ix
x Contributors

Jan Sieckmann Faculty of Business, Economics, and Law, University of


Erlangen-Nuremberg, Erlangen, Germany
Francescomaria Tedesco School of Law, University of Camerino, Camerino,
Italy
FrancescoViola Department of Law, University of Palermo, Palermo, Italy
Author Information

Jos Manuel Cabra Apalategui is senior lecturer in the Department of Financial


Law, Political Economy and Philosophy of Law, University of Mlaga, Spain. He
has been visiting researcher at the universities of Mainz, Munich and Geneva. He
has also been visiting scholar at the Centre for Law and Cosmopolitan Values at the
University of Antwerp. His significant body of work is in the areas of theory of law,
theories of legal argumentation and Hayeks political liberalism. Included in his
publications are Sobre Derecho Y Argumentacion: Estudios De Teoria De La
Argumentacion Juridica (Granada: Comares, 2016) and Argumentacin jurdica y
racionalidad en A.Aarnio (Madrid: Dickinson, 2000).

Ian Bryan is senior lecturer in law, School of Law, Lancaster University, UK.His
teaching, research and publication activities traverse a wide range of fields, includ-
ing the administration of criminal justice, criminal law, the laws of evidence, legal
history, human rights and legal theory. He is author of Interrogation and Confession:
A Study of Progress, Process and Practice (Dartmouth,1997). He is also(along with
P.Langford and J.McGarry) coeditor of The Foundation of the Juridico-Political:
Concept Formation in Hans Kelsen and Max Weber (Routledge 2015) and The
Reconstruction of the Juridico-Political: Affinity and Divergence in Hans Kelsen
and Max Weber (Routledge 2015).

Paolo Carrozza is professor of constitutional law at the Scuola Superiore


SantAnna, Pisa, Italy. Previously professor of public law at the universities of
Florence and Sassari, his most notable books include Diritto costituzionale com-
parato (with A.Di Giovine and G.F.Ferrari; Laterza, 2014) and Diritto di welfare
(with M.Campedelli and L.Pepino; Il Mulino, 2010).

Vronique Champeil-Desplats is professor in public law at the University of Paris


Ouest-Nanterre-la-Dfense; director of the Centre de Recherche et dEtude sur les
droits fondamentaux (CREDOF) at Paris Ouest-Nanterre-La Dfense University;
and director of the Revue des droits de lHomme. Her research centres on constitu-
tionalism, human rights, legal theory and political theory. She is author of Norberto

xi
xii Author Information

Bobbio: pourquoi la dmocratie? (Houdiard Editeur, 2008) and Mthodologies du


droit et des sciences du droit (Dalloz, 2014). She has also translated Riccardo
Guastinis Leons de thorie constitutionnelle (Dalloz, collection Rivages du droit,
2010). She is editor of Pdagogie et droits de lhomme (Presses Universitaires de
Paris Ouest, 2014) and coeditor of Libert conomique et droits de lhomme (Presses
Universitaires de Paris Ouest, 2010).

Pierluigi Chiassoni is professor of jurisprudence at the Department of Law, the


University of Genoa, Italy. Amongst his recent publications are El discreto placer
del positivismo jurdico (Bogot, 2016), Da Bentham a Kelsen. Sei capitoli per una
storia della filosofia analitica del diritto (Torino, 2016), Desencantos para aboga-
dos realistas (Bogot, 2013), El anlisis econmico del derecho en los Estados
Unidos (Lima, 2013), Il positivismo giuridico. Una investigazione analitica
(Modena, 2013) and Tcnicas de interpretacin jurdica (Madrid-Barcelona-Buenos
Aires, 2011). He is also president of the masters programme Global Rule of Law
and Constitutional Democracy.

Christine Chwaszcza is professor of social and political philosophy at Cologne


University, Germany. Previously she was professor of social and political philoso-
phy at the European University Institute, San Domenico, Italy. Amongst her research
and teaching interests are philosophy of human rights and ethics in international
relations. Her publications include Moral Responsibility and Global Justice: A
Human Rights Approach (2nd revised edition, Baden-Baden: Nomos Verlag, 2010).

Valeria Giordano is associate professor in the Department of Legal Science,


University of Salerno, Italy. Her research centres upon the areas of constitutional-
ism and positivism, legal method, fundamental rights, democracy and globalization.
In addition to numerous articles and books chapters, her books include (as coeditor)
Razionalit del diritto e poteri emergenti (Giappichelli, 2013), (as coeditor)
Effettivit e modelli normativi. Studi di Filosodia del diritto (Giappichelli, 2013),
Modelli argomentativi delle teorie giuridiche contemporanee (Edizioni Scientifiche
Italiane, 2008) and Il positivismo e la sfida dei principi (Edizioni Scientifiche
Italiane, 2004). She is also the editor of the journal Soft Power: Euro-American
Journal of Historical and Theoretical Studies of Politics.

Lorenz Khler is professor of civil law, civil procedure and legal theory at the
University of Bremen, Germany. Along with his many journal contributions are his
monographs Begriff und Rechtfertigung abdingbaren Rechts (Tbingen: Mohr
Siebeck, 2012) and Strukturen und Methoden der Rechtsprechungsnderung, 2.
Aufl. (Baden-Baden: Nomos, 2011).

Peter Langford is senior lecturer in law, Department of Law and Criminology,


Edge Hill University, UK.He has published in the areas of human rights and legal
theory. He is (along with I.Bryan and J.McGarry) coeditor of The Foundation of
the Juridico-Political: Concept Formation in Hans Kelsen and Max Weber
Author Information xiii

(Routledge 2015) and The Reconstruction of the Juridico-Political: Affinity and


Divergence in Hans Kelsen and Max Weber (Routledge 2015). He has also pub-
lished a book on the work of the contemporary Italian philosopher Roberto Esposito:
Roberto Esposito: Law, Community and the Political (London: Routledge, 2015).

Isabel Lifante Vidal is senior lecturer in legal philosophy at the University of


Alicante, Spain. Amongst her most notable publications are the monograph La
interpretacin jurdica en la teora del Derecho contempornea (CEPC, 1999) and
such articles as Dos conceptos de discrecionalidad jurdica, Sobre el concepto de
representacin and Seguridad jurdica y previsibilidad (all published in Doxa).
She is member of the editorial board of Doxa and deputy director of the Observatorio
de Argumentacin Jurdica para el Mundo Latino.

John McGarry is reader in law, Department of Law and Criminology, Edge Hill
University. He has published in the areas of public law and jurisprudence. He is
(along with I.Bryan and P.Langford) coeditor of The Foundation of the Juridico-
Political: Concept Formation in Hans Kelsen and Max Weber (Routledge 2015) and
The Reconstruction of the Juridico-Political: Affinity and Divergence in Hans
Kelsen and Max Weber (Routledge 2015). He is also the author of Intention,
Supremacy and the Theories of Judicial Review(Routledge 2016).

Claes Peterson is professor of legal history in the Department of Law, Stockholm


University, Sweden. He published his doctoral thesis, Peter the Greats
Administrative and Judicial Reforms: Swedish Antecedents and the Process of
Reception, in 1979. He has also contributed to such publications as Poltava: Sudby
plennych i vzajmodejstvie kultur (T. Torstendahl-Salytjeva i Lena Jonsson (ed.);
RGU, 2009), Rechtswissenschaft als juristische Doktrin: ein rechtshistorisches
Seminar in Stockholm, 29 bis 30 Mai 2009 (Stockholm, 2009), Juridiska fakulteten
19072007: En minnesskrift, Juridiska fakulteten (Stockholm, 2007), History and
European Private Law: Development of Common Methods and Principles (Lund,
1997) and Juristische Theoriebildung und rechtliche Einheit: Beitrge zu einem
rechtshistorischen Seminar in Stockholm in September 1992 (Lund, 1993). His cur-
rent research concerns different aspects of the history and development of legal
methodology and jurisprudence.

Pierre-Yves Quiviger is professor of philosophy at the University of Nice Sophia


Antipolis, director of the Centre de Recherches en Histoire des Ides (CRHI) and a
specialist in legal theory. He has published several articles on contemporary forms
of natural law and has edited a number of Sieys works, including Le secret du droit
naturel (Classiques Garnier, 2013). He, together with Pierre Ferrand, will publish
the first French translation of Calvins commentary on Senecas De Clementia
(1532) (Classiques Garnier, 2016).

Jan Sieckmann is professor of legal theory and philosophy of law at the University
of Erlangen-Nrnberg, Germany. Previously, he was professor of public law at the
xiv Author Information

University of Bamberg and the University of Erlangen-Nrnberg and DAAD visit-


ing professor at the University of Buenos Aires. Amongst his numerous publications
are The Logic of Autonomy: Law, Morality and Autonomous Reasoning (Hart
Publishing, 2012), (as editor) Die Prinzipientheorie der Grundrechte: Studien zur
Grundrechtstheorie Robert Alexys (Nomos, 2007) and Argumentation und poli-
tische Legitimation (Baden-Baden: Nomos, 2006) and Verfassung und Argumentation
(Nomos, 2005).

Francescomaria Tedesco is research fellow in philosophy of law at the University


of Camerino, Italy. From 2010 to 2015, he was research fellow in political philoso-
phy at the Scuola Superiore SantAnna, Pisa, Italy. He previously held positions, as
professor of human rights, at the Universit per Stranieri, Perugia, Italy, and at the
Suor Orsola Benincasa University of Naples, Italy. His fields of interest are in politi-
cal philosophy, philosophy of law, anthropology, human rights, subaltern studies,
constitutional law and international law. His research has centred upon questions of
sovereignty, neo-liberalism, human rights and postcolonialism. His books include
Eccedenza sovrana (Milan-Udine: Mimesis, 2012), Diritti umani e relativismo
(Roma-Bari: Laterza, 2009) and Introduzione a Hayek (Laterza, Roma-Bari:
Laterza, 2004).

Francesco Viola is emeritus professor of legal philosophy in the Faculty of Law,


University of Palermo, Italy. He has a long experience of teaching and writing in
legal philosophy, legal theory, human rights and legal ethics. He is coeditor of a
series on legal philosophy and codirector of Ragion pratica, a journal on practical
philosophy, and of Ars Interpretandi, a journal on legal hermeneutics. He also
served as director of the Law and Politics section in the recent edition of the
Encyclopedia of Philosophy (Bompiani) and is president of the Italian Association
for Legal Philosophy and editor-in-chief of the Journal of Legal Philosophy.
Chapter 1
Introduction: Kelsen, Legal Science
andPositive Law

PeterLangford, IanBryan, andJohnMcGarry

Kelsenian legal science is a distinctive theoretical project for the comprehension of


positive law.1 It distinguishes itself from the broader, nineteenth century German
tradition of legal science through a process of critical interpretation and reworking.
The process, initiated with Kelsens habilitation of 1911, Hauptprobleme der
Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze (Kelsen 2008), repre-
sents a reconsideration of the fundamental elements of this tradition which pre-
serves the methodological requirement for a theory of law to be a science. The
adoption of this interpretative position entails that the Kelsenian project assumes
both the continued pertinence of a notion of legal science and the historical legiti-
macy of the tradition of legal science in relation to preceding conceptions of a the-
ory of law. The tradition of legal science is held, in the 1911 habilitation, to denote
the origin from which further work on a theory of law is to develop.
The German tradition of legal science, which emerged and developed in opposi-
tion to the earlier nineteenth century legal theory of Friedrich Savigny (17791861),2
retains and reinforces Savignys distance from the theory of law in the preceding

1
We use the term Kelsenian Legal Science to refer to the distinctive theoretical framework
through which Hans Kelsen (18811973) articulated his conceptualization positive law. The sub-
sequent modifications and alterations of this original framework are held to represent Kelsens
reflection upon the continued pertinence of the project of a legal science of positive law.
2
On Savigny, see (Hlzl 2002; Meder 2004; Lahusen 2012; and Rckert 2016).
P. Langford (*) J. McGarry
Department of Law and Criminology, Edge Hill University, Ormskirk, UK
e-mail: langforp@edgehill.ac.uk; mcgarryj@edgehill.ac.uk
I. Bryan
Lancaster University Law School, Lancaster University, Lancaster, UK
e-mail: i.bryan@lancaster.ac.uk

Springer International Publishing AG 2017 1


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_1
2 P. Langford et al.

tradition of German idealism of Immanuel Kant, Johann Fichte and Georg Hegel
(Jouanjan 2003, 2005).3 The insistence of legal science upon an autonomous domain
of law which is to be grasped with distinct legal concepts, relinquishes Savignys
orientation to the interpretation of Roman law and its interpenetration with custom
(Sitte) and the spirit of the people (Volksgeist).4 The elaboration of a legal science of
public law, as a juridical theory of the state (Staatsrechtslehre), is the aspect of the
German tradition of legal science from which the Hauptprobleme commences its
critical analysis. The particular focus of the critical analysis is upon the work of
Paul Laband (18381918)5 and Georg Jellinek (18511911)6; and the Kelsenian
critique is orientated by the limitations of their different theoretical presentations of
a juridical theory of the state. The limitations arise from Kelsens insistence that a
juridical theory of the state, in order to be methodologically coherent, requires that
the notion of the state is an entirely legal concept (see, for example, Kelsen 2006a).
The autonomy of the domain of legal science, for Kelsen, rests upon a further juridi-
fication of the conceptual frameworks propounded by Laband and Jellinek in order
to exclude the non-juridical presence of the state. This presence is reflected in the
ascription of a will or subjectivity to the state which precedes the law and in the dual
character of the state which, for Laband and Jellinek, is both legal and factual. It is
from this critique that the initial elements of, and impetus for, the Kelsenian project
of a legal science of positive law are developed.7
The further development of the Kelsenian project, culminating in a pure theory
of law, presented in the Reine Rechtslehre of 1934 (Kelsen 2002), involves the
reworking and modification of the basic theoretical framework of the Hauptprobleme.
This is accompanied, at the theoretical level, by a critical engagement with the
emergence of another challenge to the German tradition of legal science, in the form
of a nascent sociology of law, and with the re-emergence, after World War I, of natu-
ral law theories.8 In relation to both theoretical frameworks, Kelsen asserts the
methodological superiority of a legal science of positive law. For Kelsens critical
engagement indicates their incapacity to provide a coherent theory of law which
establishes the specific normative character of positive law. The incapacity is the
corollary of a regression to either a merely factual conception of the normativity of

3
The distance is most evident in the dispute between Hegel and Savigny. See, for example,
Schiavone 1984; Hasse 2005; Kletzer 2007.
4
For Jouanjan, the point of transition between the two forms of legal theory is represented by the
work of Carl Friedrich Gerber (18231891). See Jouanjan 1997.
5
In particular, Labands three-volume, Das Staatsrecht des Deutschen Reichs (18761882).
6
See G Jellinek, Allgemeine Staatslehre, 2nd edition, 1905.
7
On this, see (Paulson 1996; Schnberger 2010). For Kelsens own reflections, in 1923, as pre-
sented in the Foreword to the second printing of the Hauptprobleme, see also (Kelsen 1997).
8
Kelsens critical engagement with a sociology of law, commences with the 1912 review of
Kantorowiczs Rechtswissenschaft und Soziologie (Kelsen 1992), proceeds to the extended
exchange (19151917) with Eugen Ehrlich (Kelsen and Ehrlich 2003), and, finally, to the work of
Weber (Kelsen 1922, 1929a, b). For a broader discussion of Kelsen and Weber, see the contribu-
tions in Bryan etal. (2015a and 2015b). The engagement with natural law begins in the 1920s
(Kelsen 1973a, 2006a). There is a further phase of engagement in the late 1940s to the 1960s
(Kelsen 1949, 1956, 1959a, b, c, 1960b, 1973b).
1 Introduction: Kelsen, Legal Science andPositive Law 3

law (sociology of law) or a metaphysical conception of the normativity of law (natu-


ral law).
The methodological dispute is undertaken in a period of dramatic political
change in which the political and institutional context of the Hauptprobleme the
existence of Wilhelmine Germany and Hapsburg Austria has been transformed by
the emergence of the constitutional republics of Weimar Germany and the Austrian
First Republic and by the creation of the League of Nations. The juridical theory of
the state which the Hauptprobleme had re-elaborated is substantially modified by
the consideration of the juridical form of the republican constitution, theories of
democracy and the relationship between domestic law and international law. The
Kelsenian project seeks to extend a legal science of positive law to encompass these
developments (see, for example, Kelsen 1920, 1923a, b, 1924, 1925a, b, 1926,
1927, 1928, 1929a, b, 1932).
The Pure Theory of Law (Reine Rechtslehre) of 1934 (Kelsen 2002) represents a
summation of these developments of the 1920s and early 1930s. The summation is
structured by a systematic articulation of the methodological framework of a legal
science of positive law. The essential conceptual and terminological elements of the
Kelsenian project are formulated as a pure theory of law which provides a general
theory of positive law. The methodological position is one of detached reflection
upon law in order to determine the formal or logical characteristics of positive law.
The question of the nature of law becomes the question of positive law as an
entirely human creation which is open to continual change. The initial methodologi-
cal position rests on the insistence of on the inapplicability of the natural sciences to
the comprehension of positive law. The domain of positive law is irreducible to the
object of the natural sciences the domain of nature since a legal system com-
prised of legal norms is entirely distinct from the relations of cause and effect,
which in the natural sciences are considered to determine the domain of nature. The
distinctiveness of the domain of positive law rests on the connection which the legal
norm creates between legal condition and legal consequence. In contrast to the
domain of nature, in which a material consequence can be immediately connected
to a preceding material condition,9 the connection in the domain of positive law
requires the methodological operation of imputation. This involves the reconstruc-
tion of the legal norm and, by extension positive laws, as [p]ositive laws say: If A
is, then B ought to be (Kelsen 2002, 24). The reconstruction excludes the legal
norm from both natural causality and moral obligation, and creates a distinct realm
of the ought (Sollen) as the object of a science of law. The methodological auton-
omy of a science of law is established as the basis for the further determination of
the conceptual framework of a pure theory of law.10
In this further determination, the methodology of the pure theory is objectivistic
and universalistic (Ibid. 53). It engages in a process which seeks to comprehend
each and every phenomenon only in systematic connection with all other phenomena,
to comprehend in every legal component the function of the legal whole (Ibid.).

9
Laws of nature say: If A is, then B must be (Kelsen 2002, 24).
10
In this further determination of its conceptual framework, the Reine Rechtlehre also reemphasizes
its critique of a sociology of law (Kelsen 2002, 1314) and natural law (Ibid. 25; 3536; 3753).
4 P. Langford et al.

The unity of this legal whole is the presupposition of its capacity to be compre-
hended systematically: the unity produced by an act of cognition. Hence, all legal
problems are confronted and to be solved as systematic problems, and the Kelsenian
project becomes as exact a structural analysis of the positive law as possible, an
analysis free of all ethico-political value judgments (Ibid.).
The structural analysis describes a hierarchical system of legal norms which is
both static and dynamic. The description is dependent upon a specific cognitive
operation the presupposition of a basic norm which is held to confer the requisite
methodological unity for the structural analysis. The notion of the basic norm, for
Kelsen, in conformity with the strictures of a structural analysis, is confined to the
cognitive clarification of positive law. This enables the pure theory of law to insist
upon its essentially heuristic role in which it relinquishes the intention to substitute
itself for an analysis of positive law and merely raise[s] to the level of conscious-
ness what all jurists are doing (for the most part unwittingly) (Ibid. 58). In this
heuristic operation, it situates itself as the description of the legal validity of a sys-
tem of positive law which is distinct from natural law or sociology of law.
The presupposition of the basic norm furnishes a notion of legal validity which
then leads to discussion of the levels of the state legal system, the place of interpre-
tation, methods of creating law, the relationship between law and state and the rela-
tionship between state and international law (Ibid. 59125). In each of these
discussions, the emphasis is upon the combination of static and dynamic analysis
within the purview of the methodological project of a pure theory of law. The pure
theory considers the conceptual clarity of its analyses to be situated between a
reduction to merely empirical description and a return to metaphysics.
Kelsens subsequent work confronts the disappearance of the interwar interna-
tional order, World War II, the creation of the United Nations and the emergence of
a new international order and, from 1940, the academic context of the USA.The
predominant focus of Kelsens work between the later 1930s and 1940s is the
attempt to rearticulate a legal theory of international law which insists on the con-
tinued pertinence of a juridical form of collective security and the legal adjudication
of international disputes (Kelsen 1942, 1944). The position of methodological
detachment of the pure theory is challenged by the Kelsenian discussion of just war
theory (Kelsen 1942) and, together with the creation of the Nuremberg Tribunal
(Kelsen 1947), the question of the recognition of the individual as a subject of inter-
national law (Kelsen 1943, 1944, 1948). The Kelsenian project responds to these
questions by the continued insistence upon the primacy of positive law and its struc-
tural analysis.11 This is accompanied by the publication in 1949 of the General
Theory of Law and State (Kelsen 2006b) which represents the introduction of the
wider project of a Kelsenian legal science of positive law into the Anglo-American

11
The question of the periodization of Kelsens work is the subject of extended discussion in the
exchange between Heidemann and Paulson (Paulson 1998; Heideman 1999; and Paulson 1999).
See also Hartney (1991, xxliii), who discusses the conceptual evolution of Kelsens work from
the Reine Rechtslehre (1934) to the General Theory of Norms (1979).
1 Introduction: Kelsen, Legal Science andPositive Law 5

academic context.12 The further development of the Kelsenian position with regard
to the emerging post World War II international order is expressed in two books of
the early 1950s which represent a sustained critique of the law of the United Nations
(Kelsen 1951) and a statement of the principles of international law (Kelsen 1952).13
Here, the critical analysis of the law of the United Nations is the corollary of the
reaffirmation of the principles of a theory of international law. The distinct Kelsenian
position in relation to the new international order is reaffirmed, in 1957, in the insis-
tence that collective security is an essentially juridical question of international law
(Kelsen 2011).
The distinctive character of an analysis of positive law as a pure theory of law is
reaffirmed with a renewed critique of natural law commencing, in the late 1940s,
and continuing until the 1960s (Kelsen 1949, 1956, 1959a, 1960b, 1973b). The
initial position of the 1920s continues to be cited, but the Kelsenian critique now
involves a more extended examination of the historical doctrine of natural law and
of its contemporary proponents. The critique is the counterpart of an episodic
defence of the methodology of the pure theory of law (Kelsen 1941, 1959b, 1960a,
1966), which is combined with the publication of the second revised and expanded
edition of the Reine Rechtslehre (Kelsen 1967).
The final period of Kelsens work, from the late 1960s to 1973 is revealed, by the
posthumous publication of the unfinished General Theory of Norms (Kelsen 1991),
to indicate a significant alteration of the basic methodological framework for the
comprehension of positive law. The distinction between the realm of is and ought
is retained together with the critique of natural law14 and practical reason in both
Kant and Aristotle. This continuity is, however, accompanied by a dissociation of a
theory of norms from the framework of a logical unity centred upon the basic norm.
The General Theory of Norms presents an increased complexity and uncertainty in
the relationship between legal norms and, thus, appears to relinquish the reconstruc-
tive task of a legal science of positive law predicated upon the presumption of the
objectivity and universality of a legal whole.15
In relation to the Kelsenian project of a legal science of positive law, the con-
tributors to this volume concentrate upon the critical re-examination which encom-
passes these stages of Kelsen work. The focus of the contributions is upon a number
of its central methodological presuppositions and concepts. The volume is divided
into six sections in which the critical examination is undertaken from the predomi-
nant perspective of the subsequent development of the theory of law outside or
beyond the framework of Kelsenian legal science. The return to the Kelsenian proj-
ect is accompanied by an extended, demanding analysis which is not predicated on
the simple restoration or reconstruction of a pure theory of law. Rather, while the

12
For a reconsideration of the American reception of the Kelsenian project, see Telman 2016.
13
Kelsen retired from his Professorial position at the University of California in 1952, but retained
a position as an emeritus Professor.
14
This critique is continued in the posthumously published Die Illusion der Gerechtigkeit: Ein
kritische Untersuchung der Sozialphilosophie Platons (Kelsen 1985).
15
On this, see Hartney 1993; Opaek 1980; Paulson 1992; and Weinberger 1981.
6 P. Langford et al.

contributors acknowledge the continued pertinence and centrality of the question of


the nature of positive law underlying the Kelsenian project, each follows the logic
of their particular critical engagement.

1.1 Legal Science Before theTribunal ofValidity

The Kelsenian legal science of positive law, which sought to place the doctrine of
natural law before the tribunal of legal science (Kelsen 1949), has itself been subject
to the judgment of the later tradition of Anglo-American legal positivism. The judg-
ment, while comparatively less absolute and unalterable,16 has determined that a
legal theory of positive law is to be elaborated without the pretension to attain the
status of a science. The methodological construction of a legal science is replaced
by a theory of law developed from the philosophical tradition of Anglo-American
analytic philosophy.17 In this transition, the cognitive process of the demarcation of
a specific domain of law rejects the Kelsenian insistence upon its non-factual foun-
dation. The cognitive process becomes one of an empirical determination of law as
a social fact (real) in place of the Kelsenian presupposition of an autonomous notion
of legal validity which is inherently conceptual (ideal). The resulting social fact
thesis is then the basis upon which to commence an alternative theory of positive
law.
The different theories of positive law (see, for example, Coleman 2001; Himma
2002, 2005; Marmor 2001; Raz 1980, 2009c) are, despite their significant diver-
gences, underlain by the social fact thesis as their common orientation. The pre-
sumed redundancy of the Kelsenian project is placed into question with the
examination of the nature of the social fact thesis.18 It becomes apparent that, rather
than one social fact thesis, the theories of positive law reveal a number of social fact
theses.19 In relation to this set of social fact theses, it also becomes evident that an
aspect of the Kelsenian project can be situated and analysed from within their
parameters.20 This, in turn, leads to an indication of the weakness of the central ele-
ments of the existing social fact theses and provides the impetus for a renewed
reflection upon the distinction between legal norms and facts.
In contrast to the predominant Anglo-American approach, a distinct mode of
critical examination of the Kelsenian project arises from a renewed focus upon the
notion of a science. From this position, a legal science of positive law is considered

16
See, for example, the discussion of Kelsen by Raz (2009a, b) and Marmor (2011).
17
The recourse to this philosophical tradition becomes increasingly explicit after the work of Hart.
18
See Khler, (Chap. 2) in this volume.
19
This is the initial stage for Khlers critical analysis in Chap. 2 of this volume.
20
Tensions within various social fact theses and their relationship with Kelsenian legal science are
analysed by Khler in Chap. 2 of this volume.
1 Introduction: Kelsen, Legal Science andPositive Law 7

on the basis of its methodological claim to the status of a science.21 The examination
acknowledges the genesis of the methodology of a legal science in the context of the
German philosophical movement of Neo-Kantianism, in particular, Hermann Cohen
(18421918) and the early work of Ernst Cassirer (18741945), of the Marburg
School.22 In contrast to the path of a detailed analysis of the relationship between
this philosophical movement and the Kelsenian project, there is the alternative path
of recourse to the contemporaneous Austrian philosophical context, in particular,
that of the Vienna Circle (Wiener Kreis) of the early twentieth century. For the
Vienna Circle, the notion of a science is an integral part of a philosophy of logical
empiricism or logical positivism developed from the initial work of Ernst Mach
(18381916). The transposition of the methodology of a legal science into this phil-
osophical framework indicates a distinct set of potential affinities and critical ques-
tions (see Jabloner and Stadler 2001).
The shift represented by this alternative interpretative path enables the relation-
ship between a pure theory of law and its object positive law to be conceived on
the model of the physio-chemical sciences of nature.23 Here the notion of the pure
theory as a legal science is examined through the status of the pure theorys con-
cepts of positive law in relation to the positive law from which they are derived. The
analysis centres upon the generation of a set of concepts of a pure theory of positive
law which replace a merely contingent, empirical observation of legal phenomena.
The concepts, which provide for the structural analysis of positive law, are held to
be essentially descriptive in character in order to accord continued primacy to the
object which they render intelligible. The question arises, however, of the extent to
which the description furnished by these concepts has an effect upon the object
positive law which it describes. The validity which the pure theory of law confers
upon the legal system of positive law is, thus, transformed from one of foundation
to one of its active or passive position in regard to the positive law which its con-
cepts describe.24

1.2 Beyond Natural Law?

The rejection and or critical interrogation of the Kelsenian project as a legal science
has derived its predominant impetus from Anglo-American analytic philosophy.
Within this approach, the focus has been almost exclusively confined to the contin-
ued elaboration of a theory of positive law which is strongly differentiated, if not
entirely separated, from morality and the natural law tradition. The question less
frequently posed to the Kelsenian project is that of its degree of methodological

21
The nature of law and the relationship between science and the science of law as pure theory
are examined by Quiviger in Chap. 3 of this volume.
22
In particular, Cohen 1902; and Cassirer 1910.
23
This is Quivigers interpretative position in Chap. 3 of this volume.
24
As emphasized by Quiviger in Chap. 3 of this volume.
8 P. Langford et al.

detachment from the natural law tradition (see, for example, Ross 1997).25 Here,
Kelsens emphatic and continually renewed insistence upon the separation purifi-
cation of a pure theory of law represents a symptom of an underlying difficulty
rather than the mere reaffirmation of demonstrable certainty. The symptom becomes
intelligible to critiques of the Kelsenian project as the reflection of the methodologi-
cally uncertain status of the basic norm (Grundnorm).
The consideration of the methodological coherence of the basic norm, as an
aspect of the wider coherence of Kelsenian legal science, has been a central concern
of those who have sought to trace the Neo-Kantian philosophical presence in
Kelsens work (Edel 1998; Holzhey 1984, 1986) and engage in its critique and
reconstruction (see the extensive body of work of Paulson, including, Paulson 2012,
2013, 2014). The orientation of this process of re-evaluation of the Neo-Kantian
elements in the Kelsenian project has remained, in the main, within the philosophi-
cal horizon of Kant and Neo-Kantianism. Here, however, the critique and recon-
struction of the methodological coherence of the basic norm is conferred with a
distinctive direction, by a shift to the philosophical horizon of the natural law theory
of the German Enlightenment.26 In its final, pre-Kantian formulation, in the philoso-
phy of Christian Wolff, this natural law theory represents a metaphysical foundation
for positive law which combines elements of both epistemology and ontology.27 The
analysis of the Kelsenian appropriation of Kant in the pure theorys methodological
break with the natural law tradition reveals a misunderstanding of Kantian philoso-
phy. The misunderstanding leads to an incoherent application of the Kantian philo-
sophical framework and an effective regression behind the Kantian critique of
Wolffian metaphysics.28

1.3 Kelsens Constitutionalism

The structural analysis of positive law undertaken by the Pure Theory of 1934 situ-
ates the constitution as the first stage in the move from the abstract (the basic norm)
to the concrete within hierarchy of levels of a legal system of positive law (Kelsen
2002, 5765). The constitution is thus the most abstract of the concrete levels of a
single-state system of positive law, and it is from this level that the further dynamic
process of concretization is derived. It is also the basis upon which, for Kelsen, posi-
tive law governs or regulates its own creation and in which the state is an entirely

25
See also Rosss review of Kelsens collection of essays, What is Justice? (Ross 1957); and
Kelsens response (Kelsen 1959c).
26
This is the basis for the analysis presented by Peterson in Chap. 4 of this volume.
27
Kelsen, whilst appropriating the Wolffian notion of civitas maxima (Kelsen 1920, 1926), never
engages in a more extensive discussion of Wolff. There is no further reference to Wolff in later
work and the later discussion of the natural law tradition, from the late 1940s onwards, concen-
trates on the earlier work of Pufendorf (see, for example, Kelsen 1949).
28
See the analysis presented by Peterson in Chap. 4 of this volume.
1 Introduction: Kelsen, Legal Science andPositive Law 9

juridical notion. This presentation of the constitution is retained in the revised and
expanded Pure Theory of Law, of 1960 (Kelsen 1967), and in the further discussion
of the constitution (Kelsen 1986),29 while redefining the cognitive character of the
basic norm, it retains the essentially methodological consideration of the subject.
The General Theory of Law and State (Kelsen 2006b),of 1945, which reworks
elements of the earlier Kelsenian approach of the 1920s, indicates a different orien-
tation to the conceptualization of the constitution. The consideration is centred upon
the juridical analysis and classification of constitutions, identifying different forms
of State as distinct juridical orders (Kelsen 2006b, 283303). This leads to a return
to the more specific work on the notion of the constitution and a constitutional court
in the later 1920s and early 1930s (Kelsen 1927, 1928, 1929a, 1931) and, at the
outset of the 1920s, to the analysis of the constitution of the Austrian First Republic
(Kelsen 1923a, b).
The return is exhibited in the enduring pertinence of Kelsens legal thought in
contemporary constitutionalism.30 The post-World War II constitutional order in
European states, the central position of a constitutional court and the subsequent
diffusion and transfer of constitutionalism beyond Western Europe, in particular to
central and eastern Europe after 1989, are each a reflection of the continued effect
of Kelsenian constitutionalism. The position and function of the constitutional court
continues to raise questions of constitutional justice the regulation of law by
law and whether the value-neutral Kelsenian response has been displaced by the
recognition of fundamental and socio-economic rights.31 The normative status of
the constitution is also raised by the position of the constitution, as a legal norm,
within and beyond the single-state system of positive law. The emergence and
development of a European legal order the European Union represents one
aspect of the wider phenomenon of supra-national legal forms which appear to com-
plicate the monistic unity of national and international law in Kelsenian legal sci-
ence. Thus, the question of the pertinence of the value-free Kelsenian approach
centres upon the comprehension of these supra-national phenomena within a hierar-
chical structure of levels of positive law.32 The question has ceased to be capable of
being posed at the level of the national constitution and has become essentially
global. In this transformation, the Kelsenian primacy of international law and its
associated notions of subordination and coordination are displaced by a more fluid
structure based upon openness and dialogue.33
The separation of Kelsenian concepts from the value-free method of Kelsenian
legal science, in the analysis of contemporary constitutionalism, renews the question
of the relationship between a theory of positive law and morality. The further path

29
A segment of Kelsens essay is contained in his General Theory of Norms (Kelsen 1991, 252ff).
30
This is the position presented by Carrozza in Chap. 5 of this volume. For an alternative Kelsenian
philosophy of constitutionalism, see (Carrino 2014).
31
As emphasized by Carrozza in Chap. 5 of this volume.
32
See Carrozzas discussion in Chap. 5 of this volume.
33
See the analysis presented by Carrozza in Chap. 5 of this volume. See, also Fontanelli etal. 2010.
10 P. Langford et al.

to the attempted dissolution of the entirety of the Kelsenian project arises from the
supplanting of the rationality of legal science and the validity of the basic norm by
a substantive, non-metaphysical moral or political rationality. The constitution then
assumes the position of a moral or political foundation for the legitimacy of the
system of positive law. The predominance of this further path in the work of Alexy
(2002, 2009, 2010), Dworkin (1977, 1986, 2005, 2011) and Habermas (1992, 1994,
1998, 2002) requires that the continued pertinence of the Kelsenian project be com-
bined with a critical engagement with the philosophical foundations of this body of
work.34 In this critical engagement, the Kelsenian methodological insistence upon
the separation of law from morality and politics, receives renewed pertinence with
the revelation of the inherent difficulties of a constitutionalism predicated upon the
combination of proceduralism and morality.35 The purported formalism of the
Kelsenian approach is revealed to provide a conceptual framework in which con-
temporary relationships between law, values and politics can be accorded both their
respective autonomy and overarching coherence.36

1.4 Against Practical Reason

The methodology of the pure theory renders law an autonomous field of positive
law for legal cognition. It involves the separation of cognition and will and the rejec-
tion of all conceptions of a rationality derived from the will. The will is considered
an incoherent basis for the derivation of the validity of positive law. The Kelsenian
rejection of practical reason, as a rationality arising from human action or human
will, is maintained throughout Kelsens work. The posthumous General Theory of
Norms (Kelsen 1979/1991) contains an explicit restatement of this position and
emphasizes the essential continuity in the notion of practical reason from Aristotle
to Kant (Kelsen 1991, 80).37 The General Theory of Norms, therefore, provides
fertile ground for the critical examination of Kelsens rejection of practical
reason.38
The General Theory of Norms reveals a simplification of the conceptual history
of practical reason, based upon an assertion of an essential historical continuity in
philosophical conceptions of practical reason, which enables its further characteri-
sation as an element of the natural law tradition.39 The counterpart to Kelsens
radical critique of practical reason is his insistence upon the exclusively cognitive

34
This is the position presented by Giordano in Chap. 6 of this volume. For alternative approaches,
centred upon a critique of neo-constitutionalism, see Comanducci 2002 and Pino 1999.
35
As emphasized by Giordano in Chap. 6 of this volume.
36
See the analysis presented by Giordano in Chap. 6 of this volume.
37
For Kelsens critique of Aristotle see (Kelsen 1991, 6770; 309310; 405407); and for his cri-
tique of Kant see (Kelsen 1991, 1318; 7985; 286288; 289; 314315).
38
Viola conducts such an examination in Chap. 7 of this volume.
39
As emphasized by Viola in Chap. 7 of this volume.
1 Introduction: Kelsen, Legal Science andPositive Law 11

and descriptive approach to the comprehension of the validity and normativity of


the legal norms of positive law. From the perspective of a more nuanced conception
of practical reason, one distinct from the natural law tradition, the cognitive and
descriptive orientation of the Kelsenian approach encounters substantial difficul-
ties.40 The difficulties centre upon an objective cognitive determination of the spe-
cific normativity of legal norms which is methodologically prohibited from any
reference to the will and human agency. The Kelsenian project, even its final, modi-
fied form in the General Theory of Norms, constrains rather than facilitates the
comprehension of the normativity of norms.41
The relationship between the Kelsenian project and practical reason also arises
in the question of legal interpretation within a legal science of positive law. The
notion of practical reason emerges from the requirement for legal decision-making
within the hierarchy of levels of a system of positive law. The structural necessity
for legal decision-making the dynamic movement from the abstract to the con-
crete opens the question of the character of this process of decision-making and
whether it contains a theory of legal interpretation or argumentation.
Kelsen confronts this question repeatedly commencing from his earliest works.
The critical review of Hermann Kantorowiczs presentation, at the First German
Sociological Congress in 1910, on the free law movement, with its focus upon the
centrality of legal decision-making, creates an initial distance from the question of
legal interpretation (Kelsen 1992). The Pure Theory of Law, of 1934, returns to this
question, and incorporates legal interpretation into the structural analysis of positive
law (Kelsen 2002, 7789). The discussion of interpretation is maintained in the later
Pure Theory of Law, of 1960 (Kelsen 1967, 348357). The further precisions, within
the structure of the Pure Theory, are presented in the Preface to Kelsens Law of the
United Nations (Kelsen 1952, xiixvii).42
The legal science of positive law, as a structural analysis of positive law, situates
legal interpretation as an element of this structural analysis. The critical examina-
tion of the position accorded to legal interpretation in Kelsens analysis reveals a
conception of interpretation incapable of generating a substantive theory of legal
interpretation.43 The limitations of the Kelsenian conception of interpretation reflect
the methodological limitations of the construction of a legal science of positive law.
Here, the separation between cognition and will, and science and values, diminishes
the complexity of the process of legal interpretation.44
The difficulties of the Kelsenian position in regard to legal interpretation are also
revealed by the consideration of the particular question of irregular norms within
the legal system of positive law.45 An irregular norm is the possibility for a dynamic
system of positive law to produce a norm not in conformity with a higher-level

40
See the analysis presented by Viola in Chap. 7 of this volume.
41
See Violas discussion in Chap. 7 of the volume.
42
This is the position from which Lifantes analysis commences in Chap. 8 of this volume.
43
As emphasized by Lifante in Chap. 8 this volume.
44
See the analysis presented by Lifante in Chap. 8 of this volume.
45
This is the focus of Apalateguis analysis in Chap. 9 of this volume.
12 P. Langford et al.

norm. With regard to this possibility, an interpretation has to be adopted in relation


to the non-conforming norms position within the existing structure of positive law.
For, the structure and, thus, the coherence of the system of positive law appear to be
presented, though the presence of an irregular norm, with a situation of fundamental
incoherence. The Kelsenian recognition of, and response to, this possibility (Kelsen
2002, 7275) has been considered to be inadequate and, thus, to undermine the pos-
sibility for coherent structural analysis of positive law. In contrast to the predomi-
nant position, the conceptual resources of Kelsenian legal science enable a response
which, while requiring a modified construction of Kelsens project, indicates that
structural coherence can be maintained.46
Thus, whilst acknowledging the limitations of the methodological parameters of
Kelsenian legal positivism in relation to the elaboration of a general theory of legal
interpretation, the Kelsenian position retains a continued relevance to an interpreta-
tive resolution of an exemplary challenge the irregular norm to a system of posi-
tive law.

1.5 Legal Science andHuman Rights

The development of contemporary, post-Kelsenian legal theory, centred upon non-


metaphysical theories of moral and political rationality, has situated the question of
human rights as one of its central considerations. The resulting philosophical or
political foundation for human rights, at both domestic and international level, have
appeared to displace, if not render redundant, the Kelsenian critique of the residue
of natural law contained in notions of the legal subject in the Pure Theory of Law,
of 1934 (Kelsen 2002, 3753). The apparent redundancy is purportedly reinforced
by the emergence of a system of international human rights which exposes the limi-
tations of Kelsens belated recognition of a legal subject of international law (Kelsen
1943, 1944, 1948, 1952).
The critical re-examination of the Kelsenian position offers a more differentiated
interpretation, an interpretation which resists the designation of unqualified obso-
lescence.47 The continued pertinence of the Kelsenian project rests upon a reinter-
pretation of the compatibility of human rights, the methodology of a legal science
and the structural analysis of legal norms.48 This, in turn, requires that the interpreta-
tion extend to the Kelsenian conception of democracy and its associated notions of
values49 and political behaviour.50 Within this enlarged interpretative framework, the
maintenance of a pluralism of values is coupled with a majoritarian, parliamentary
form of democratic rule (Kelsen 1929b, 1955, 2013). This involves the presence of

46
As emphasized by Apalategui in Chap. 9 of this volume.
47
This is emphasized in the contributions from Champeil-Desplats (Chap. 10), Chwaszcza (Chap.
11) and Tedesco (Chap. 12) in this volume.
48
As discussed by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap. 11) in this volume.
49
See the analysis presented by Champeil-Desplats in Chap. 10 of this volume.
50
As emphasized by Chwaszcza in Chap. 11 of this volume.
1 Introduction: Kelsen, Legal Science andPositive Law 13

a minority, represented within a constitutional, parliamentary system, and from the


relationship between majority and minority derives the juridical question of the
protection of the minority and the wider sphere of values and political behaviour.51
The focus of the critical re-examination is upon Kelsens procedural or technical
comprehension of the institutional framework which provides this protection. This
indicates that the Kelsenian approach to a parliamentary form of democracy con-
tains uncertainty regarding the foundation of majority rule. It is unclear whether the
basis is simply numerical or whether the associated procedures and juridical form
of the state confer a general legitimacy upon the majority and its political rule. The
uncertainty is accompanied by a lack of clarity regarding the status of the minority
and the wider sphere of values and political behaviour.52 It is possible to trace this
uncertainty to the Kelsenian attempt to conceive of a juridico-political framework
which generates the conditions for social peace without extending to the imposition
or prohibition of values.53 These limitations then enable the further interpretative
possibilities of designating Kelsen as the paradoxical precursor of the contempo-
rary theory of neo-constitutionalism.54 It also permits the critical reconstruction of
the Kelsenian project as a republican theory of democracy and its confrontation
with contemporary political theories of human rights.55
The system of international human rights law has orientated the development of
international law in a different direction from that envisaged by Kelsens theory of
legal monism. The qualification or limitation of state sovereignty is centred upon
the recognition of an international legal subject of human rights law in place of the
cognitive operation of dissolving the dogma of sovereignty (Kelsen 2002, 124)
into a juridical notion. The Kelsenian structural analysis of a unified, hierarchical
relationship between the international and national legal orders of a global legal
system appears to be outmoded by the primacy accorded to the relationship between
international human rights law and state sovereignty.56 This, in turn, has led to the
elaboration of theories of a global, cosmopolitan legal order based upon fundamen-
tal human or political rights.
The continued Kelsenian presence arises from the realist, anti-utopian spirit of
the works of the 1940s (Kelsen 1942, 1944) rather than from their juridical prescrip-
tions. The critical re-examination of Kelsen invokes this realism as the perspective
from which to consider the juridical and political relationships between interna-
tional law, the state and the individual.57 The pure theory is modified by the adoption
of the notion of the fragmentation of international law. The Kelsenian presentation

51
As discussed by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap. 11) in this volume.
52
See the analysis presented by Chwaszcza in Chap. 11 of this volume.
53
As emphasized, in different respects, by Champeil-Desplats (Chap. 10) and Chwaszcza (Chap.
11) in this volume.
54
This is the position of Champeil-Desplats in Chap. 10 of this volume (the phrase is that of
Champeil-Desplats).
55
See the analysis presented by Chwaszcza in Chap. 11 of this volume.
56
This the position from which Tedescos analysis commences in Chap. 12 of this volume.
57
See the analysis presented by Tedesco in Chap. 12 of this volume.
14 P. Langford et al.

of an underdeveloped character of international law is replaced by an international


legal order without an essential structural unity. The absence of structural unity is
the reflection of the enhanced status and autonomy of the legal subject of interna-
tional law as a subject of international human rights law. For it indicates a relocation
of sovereignty to the subject of international law and the re-emergence of the notions
of the covenant, consent and rebellion as essential elements for the analysis of this
international order.58

1.6 The Triumph ofLegal Science?

The persistence and pursuit of the Kelsenian project and, in particular, of a legal
science, includes the continued pertinence of the Kelsenian critique of natural law.
The Anglo-American theory of positive law, in its displacing of a legal science of
positive law with a theory of positive law, has maintained a distance from the natural
law tradition. However, the distance has been combined with the internal differen-
tiation of contemporary theorists of positive law in regard to the degree to which
morality is considered to have a legitimate presence within a theory of positive law.
The determination of the coherence of a rejection (exclusive legal positivism) or a
qualified recognition (inclusive legal positivism) of morality has assumed primacy
over the critique of the natural law tradition. The natural law tradition has also pro-
ceeded to develop beyond the parameters of the tradition subjected to Kelsens cri-
tique. The development has also produced a significant degree of internal
differentiation in which the natural law tradition has ceased to be predominant; and
the designation non-positivist has become the more frequent, contemporary term to
define these diverse theoretical approaches.
The reconsideration of Kelsens critique of natural law approaches the elements
of its critical framework on the basis of these further developments.59 It focuses on
a reconsideration of the Kelsenian definition of the modern natural law tradition and
the accompanying isolation of the concepts underlying this tradition. A central con-
ceptual element of the natural law tradition, for Kelsen, is the concept of God which
is held to provide the absolute foundation for the natural law tradition.60 The critical
force of the identification of the natural law tradition with this concept is held to
dissipate when it is confronted with the subsequent development of contemporary
non-positivist theories within the Anglo-American tradition (for example, Dworkin
1982, 1986, 2005, 2011, 2013; Finnis 1980; and Rawls 1999, 2001). For the Anglo-
American tradition is capable of evading both recourse to a deity as a fundamental
norm and the further difficulties which Kelsen demonstrates to arise from it.61 Thus,
the Kelsenian critique appears unable to be effectively sustained.

58
See the evaluation presented by Tedesco in Chap. 12 of this volume.
59
For critical analysis, see McGarry (Chap. 13) and Sieckmann (Chap. 14) in this volume.
60
This is the position fromwhich McGarry commences his analysis in Chap. 13 of this volume.
61
As emphasized by McGarry in Chap. 13 of this volume.
1 Introduction: Kelsen, Legal Science andPositive Law 15

The difficulties arising from the Kelsenian critique of natural law are also illumi-
nated through an examination of the contemporary German non-positivist tradi-
tion.62 Here, the specific normativity of law has developed against the methodological
prescriptions of Kelsenian legal science. This critical engagement with Kelsen chal-
lenges the capacity to designate the pure theory of law as scientific and the applica-
bility of the Kelsenian critique of natural law. The critical analysis reveals the
untenability of the notion of the basic norm and that an equally coherent conception
of legal normativity arises from the work of Gustav Radbruch (18781949), and its
further development in the contemporary work of Robert Alexy. This non-positivist
legal theory is founded upon a non-metaphysical conception of rationality which
positions it beyond the purview of the Kelsenian critique of natural law.63
The apparent overcoming of the Kelsenian critique by contemporary non-
positivist theories is qualified by the re-evaluation of responses to Kelsen from
within the natural law tradition.64 The responses, which focus upon Kelsens
extended essay, The Natural Law Doctrine Before the Tribunal of Science (Kelsen
1949), reassert the coherence of a theory of natural law (Bodenheimer 1950; George
2000). The responses, as the representatives of a traditional and a new natural law
theory, when analysed from the position of Kelsenian legal science, enable the
reconstruction of a Kelsenian reply which reveals the incoherence of their respec-
tive theories of natural law.65 Thus, the Kelsenian position retains the capacity for
renewed critical engagement with elements of the natural law tradition.66
The guiding orientation of this edited collection is to renew the critical reflection
on the Kelsenian project of a legal science of positive law in order to discourage the
assumption of its merely historical interest. The enduring importance of Kelsens
work rests on the numerous questions it raises in relation to the conceptualization of
positive law. The return to these questions in Kelsenian Legal Science and the
Nature of Law is intended to reanimate critical reflection without the pretention to
generate a new orthodoxy.

References

Alexy, R. 2002. The Argument from Injustice: A Reply to Legal Positivism. Oxford: Oxford
University Press.
. 2009. A Theory of Legal Argumentation. Oxford: Oxford University Press.
. 2010. A Theory of Constitutional Rights. Oxford: Oxford University Press.
Bodenheimer, E. 1950. The Natural-Law Doctrine Before the Tribunal of Science: A Reply to
Hans Kelsen. Western Political Quarterly 2 (4): 335363.

62
This is the underlying orientation of Sieckmanns contribution (Chap. 14) in this volume.
63
See Sieckmann, (Chap. 14) in this volume.
64
This is the position from which Chiassoni commences his analysis in Chap. 15 of this volume.
65
See Chiassoni, (Chap. 15) in this volume.
66
See the analysis presented by Chiassoni in Chap. 15 of this volume.
16 P. Langford et al.

Bryan, I., P. Langford, and J. McGarry, eds. 2015a. The Foundations of the Juridico-Political:
Concept Formation in Hans Kelsen and Max Weber. London: Routledge.
, eds. 2015b. The Reconstruction of the Juridico-Political: Affinity and Divergence in
Kelsen and Weber. London: Routledge.
Carrino, A. 2014. Il problema della sovranit nellet della globalizzazione. Da Kelsen allo Stato-
Mercato. Soveria: Rubbettino.
Cassirer, E. 1910. Substanzbegriff und Funktionsbegriff: Untersuchungen ber die Grundfragen
der Erkenntniskritik. Berlin: Bruno Cassirer.
Cohen, H. 1902. System der Philosophie, Erster Teil: Logik der reinen Erkenntnis. Berlin: Bruno
Cassirer.
Coleman, J. 2001. The Practice of Principle: In Defence of a Pragmatist Approach to Legal
Theory. Oxford: Oxford University Press.
Comanducci, P. 2002. Neo-Constitutionalism: An Attempt at Classification. Associations 6 (2):
215231.
Dworkin, R. 1977. Taking Rights Seriously. London: Duckworth.
. 1982. Natural law revisited. University of Florida Law Review 34: 165188.
. 1986. Laws Empire. Cambridge, MA: Harvard University Press.
. 2005. Freedoms Law: The Moral Reading of the American Constitution. Oxford: Oxford
University Press.
. 2011. Justice for Hedgehogs. Cambridge, MA: Harvard University Press.
. 2013. Religion Without God. Cambridge, MA: Harvard University Press.
Edel, G. 1998. The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen. In
Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by S.L. Paulson
and B.L. Paulson, 195219. Oxford: Oxford University Press.
Finnis, J. 1980. Natural Law and Natural Rights. Oxford: Oxford University Press.
Fontanelli, F., G. Martinico, and P. Carrozza, eds. 2010. Shaping Rule of Law Through Dialogue:
International and Supranational Experiences. Groningen: Europa Law Publishing.
George, R.P. 2000. Kelsen and Aquinas on The Natural Law Doctrine. Notre Dame Law Review
75 (5): 16251646.
Habermas, J. 1992. Moral Consciousness and Communicative Action. Cambridge, MA: MIT
Press.
. 1994. Justification and Application: Remarks on Discourse Ethics. Cambridge, MA: MIT
Press.
. 1998. Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy. Cambridge, MA: MIT Press.
. 2002. The Inclusion of the Other: Studies in Political Theory. Cambridge, MA: MIT
Press.
Hartney, M. 1991. Introduction: The Final Form of the Pure Theory of Law. In General Theory of
Norms, edited by H. Kelsen, ixliii. Oxford: Oxford University Press.
. 1993. The Confusion in Kelsens Final Rejection of a Logic of Norms. In Praktische
Vernuft, Gezetzgebung, und Rechtswissenschaft (ARSP 52), edited by W. Schrekenberger and
C. Stark, 7782. Stuttgart: Franz Steiner.
Hasse, M. 2005. Der Geist Als Pouvoir Constituant Hegel Zwischen Siyes Und Savigny. Hegel-
Jahrbuch: 267272.
Heideman, C. 1999. Norms, Facts, and Judgments. A Reply to S. L. Paulson. Oxford Journal of
Legal Studies 19 (2): 345350.
Himma, K.E. 2002. Inclusive Legal Positivism. In The Oxford Handbook of Jurisprudence and Legal
Philosophy, edited by J. Coleman and S.J. Shapiro, 125165. Oxford: Oxford University Press.
. 2005. Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of
Inclusive Legal Positivism. Law and Philosophy 24 (1): 145.
Holzhey, H. 1984. Die Transformation neukantianischer Theoreme in die Reine Rechtslehre
Kelsens. In Hermeneutik und Strukturtheorie des Rechts, edited by M.W. Fischer, E. Mock, and
H. Schreiner, 99110. Wiesbaden: Steiner.
1 Introduction: Kelsen, Legal Science andPositive Law 17

. 1986. Kelsens Rechts- und Staatslehre in ihrem Verhltnis zum Neukantianismus. In


Untersuchungen zur Reinen Rechtslehre. Ergebnisse eines Wiener Rechtstheoretischen
Seminars 1985/86, edited by S.L. Paulson and R. Walter, 167192. Vienna: Manz.
Hlzl, F.J. 2002. Friedrich Carl von Savignys Lehre von der Stellvertretung: Ein Blick in seine
juristische Werkstatt. Gttingen: Wallstein.
Jabloner, C., and F. Stadler, eds. 2001. Logischer Empirismus und Reine Rechtslehre. Beziehungen
zwischen dem Wiener Kreis und der Hans Kelsen-Schule. Vienna: Springer.
Jouanjan, O. 1997. Carl Friedrich Gerber et la constitution dune science du droit public allemand.
In La science juridique franaise et la science juridique allemande de 1870 1918, edited by
O. Beaud and P. Wachsmann, 1163. Strasbourg: Presses Universitaires de Strasbourg.
. 2003. De La Vocation De Notre Temps Pour La Science Du Droit: Modles Scientifiques
et Preuve de la Validit des Enoncs Juridiques. Revue europenne des sciences sociales, XLI
128: 129144.
Jouanjan, Olivier. 2005. Une histoire de la pense juridique en Allemagne (18001918). Paris:
Presses Universitaires de France.
Kelsen, H. 1920. Das Problem der Souvernitt und die Theorie des Vlkerrechts: Beitrag zu einer
reinen Rechtslehre. Tbingen: J.C.B. Mohr.
. 1922. Der soziologische und der juristische Staatsbegriff. Tbingen: Mohr.
. 1923a. Verfassungs und Verwaltungsgerichtsbarkeit im Dienste des Bundesstates, nach
der neuen sterreichischen Bundersverfassung vom 1. Oktober 1920. Zeischriften fr sch-
weizerischen Recht XLII: 173217.
. 1923b. sterreichisches Staatsrecht: Ein Grundriss Entwichlungsgeschichtlich
Dargestellt. Tbingen: J.C.B. Mohr.
. 1924. Die Lehre von den drei Gewalten oder Funktionen des Staates. Archiv fr Rechts
und Wirtschaftsphilosophie 17: 374408.
. 1925a. Das Problem des parlamentarismus. Vienna/Leipzig: Braumller.
. 1925b. Allgemeine Staatslehre. Berlin: Springer.
. 1926. Les Rapports de Systme entre le Droit Interne et le Droit International Public.
Recueil des Cours de lAcadmie de droit international IV: 227332.
. 1927. Die Bundesexekution. Ein Beitrag zur Theorie und Praxis des Bundesstaates, unter
besonderer Bercksichtigung der deutschen Reichs- und der sterreichischen Bundes-
Verfassung. In Festgabe fr Fritz Fleiner zum 60.Geburtstag, edited by Z. Giacometti and D.
Schindler, 127187. Tbingen: Mohr.
. 1928. La garantie jurisdictionnelle de la Constitution (la justice constitutionnelle). Revue
du Droit publique et de la Science politique XXXV: 197257.
. 1929a. Wesen und Entwicklung der Staatsgerichtsbarkeit, Bericht, erstattet der Tatung der
Deutschen Staatsrechtslehre zu Wien am 23. und 24, April 1928. Verffentlichungen der
Vereinigung der Deutschen Staatsrechtslehrer, 5: 3088; 117123.
. 1929b. Vom Wesen und Wert der Demokratie. 2nd ed. Tbingen: Mohr.
. 1931. Wer soll der Hter der Verfassung sein? Berlin-Grunewald: W. Rothschild.
. 1932. Thorie Gnrale du Droit International Public. Problmes Choisis. Recueil des
Cours de lAcadmie de droit international IV: 121349.
. 1941. The Pure Theory and Analytical Jurisprudence. Harvard Law Review 55 (1): 4470.
. 1942. Law and Peace in International Relations. Cambridge, MA: Harvard University
Press.
. 1943. Collective and Individual Responsibility in International Law with Particular
Regard to the Punishment of War Criminals. California Law Review 31 (5): 530571.
. 1944. Peace Through Law. Chapel Hill: University of North Carolina Press.
. 1947. Will the Judgment in the Nuremberg Trial Constitute a Precedent in International
Law? The International Law Quarterly 1 (2): 153171.
. 1948. Collective and Individual Responsibility for Acts of State in International Law.
Jewish Yearbook of International Law 1: 226239.
18 P. Langford et al.

. 1949. Natural Law Doctrine before the Tribunal of Science. The Western Political
Quarterly 2 (4): 481513.
. 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems.
New York: Praeger.
. 1952. Principles of International Law. Berkeley: University of California Press.
. 1955. The Foundations of Democracy. Ethics 66 (1): 1101.
. 1956. A Dynamic Theory of Natural Law. Louisiana Law Review 16 (4): 597620.
. 1959a. Justice et Droit Naturel. Annales de Philosophie Politique 1: 1123.
. 1959b. On the Basic Norm. California Law Review 47: 107110.
. 1959c. Eine realistische und die Reine Rechtslehre. Bemerkungen zu Alf Ross: On Law
and Justice. sterreich Zeitung ffentliches Recht 10: 125.
. 1960a. What is the Pure Theory of Law? Tulane Law Review 34: 269276.
. 1960b. Plato and the Doctrine of Natural Law. Vanderbilt Law Review 14: 2364. (German
original 1957).
. 1966. On the Pure Theory of Law. Israel Law Review 1 (1): 17.
. 1967. Pure Theory of Law. Berkeley: University of California Press.
. 1973a. The Idea of Natural Law. In Essays in Legal and Moral and Philosophy, edited by
H. Kelsen, 2760. Dordrecht: Springer. (German original 1927).
. 1973b. The Foundation of the Theory of Natural Law. In Essays in Legal and Moral and
Philosophy, edited by H. Kelsen, 114153. Dordrecht: Springer. (German original 1964).
. 1985. Die Illusion der Gerechtigkeit: Ein kritische Untersuchung der Sozialphilosophie
Platons. Vienna: Manz.
. 1986. The Function of the Constitution. In Essays on Kelsen, edited by R. Tur and W.
Twinning, 109119. Oxford: Oxford University Press.
. 1991. General Theory of Norms. Oxford: Oxford University Press. (German original
1979).
. 1992. Zur Soziololgie des Rechts. Kritische Betrachtungen. In Hans Kelsen Und Die
Rechtssoziologie: Auseinandersetzungen Mit Hermann U. Kantorowicz, Eugen Ehrlich Und
Max Weber, edited by S.L. Paulson, 601614. Aalen: Scientia. (German original 1912).
. 1997. Foreword to the Second Printing of Main Problems in the Theory of Public Law. In
Normativity and Norms. Critical Perspectives on Kelsenian Themes, edited by S.L. Paulson
and B.L. Paulson, 322. Oxford: Oxford University Press. (German original 1923).
. 2002. Introduction to the Problems of Legal Theory. Oxford: Oxford University Press.
(German original 1934).
. 2006a. Natural Law Doctrine and Legal Positivism. In General Theory of State and Law,
edited by H. Kelsen, 391446. New Jersey: Transaction Publishers. (German original 1928).
. 2006b. General Theory of State and Law. New Jersey: Transaction Publishers. (Originally
published 1945).
. 2008. Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatze. In
H. Kelsen, Werke, edited by M. Jestaedt, vol. II. Tbingen: Mohr. (Originally published in 1911).
. 2011. Collective Security Under International Law. New Jersey: Law Book Exchange.
(Originally published 1957).
. 2013. The Essence and Value of Democracy. Lanham/Oxford: Rowman and Littlefield.
Kelsen, H., and E. Ehrlich. 2003. Rechtssoziologie und Rechtswissenschaft: Ein Kontroverse
(1915/1917). Baden-Baden: Nomos.
Kletzer, C. 2007. Custom and Positivity: An Examination of the Philosophic Ground of the Hegel-
Savigny Controversy. In The Nature Of Customary Law: Philosophical, Historical And Legal
Perspectives, edited by A. Perreau-Saussine and J. Murphy, 125148. Cambridge: Cambridge
University Press.
Lahusen, B. 2012. Alles Recht geht vom Volksgeist aus: Friedrich Carl von Savigny und die mod-
erne Rechtswissenschaft. Berlin: Nicolai.
Marmor, A. 2001. Positive Law and Objective Values. Oxford: Oxford University Press.
. 2011. Philosophy of Law. New Jersey: Princeton University Press.
1 Introduction: Kelsen, Legal Science andPositive Law 19

Meder, S. 2004. Miverstehen und Verstehen. Savignys Grundlegung der juristischen Hermeneutik.
Tbingen: Mohr.
Opaek, K. 1980. berlegungen zu Hans Kelsens Allgemeine Theorie der Normen. Vienna:
Manz.
Paulson, S.L. 1992. Kelsens Legal Theory: the Final Round. Oxford Journal of Legal Studies 12
(2): 265274.
. 1996. Hans Kelsens Earliest Legal Theory: Critical Constructivism. Modern Law Review
59 (6): 797812.
. 1998. Review: Four Phases in Hans Kelsens Legal Theory? Reflections on a Periodization.
Oxford Journal of Legal Studies 18 (1): 153166.
. 1999. Arriving at a Defensible Periodization of Hans Kelsens Legal Theory. Oxford
Journal of Legal Studies 19 (2): 351164.
. 2012. A Justified Normativity Thesis in Hans Kelsens Pure Theory of Law? In
Institutionalized Reason: The Jurisprudence of Robert Alexy, edited by M. Klatt, 61111.
Oxford: Oxford University Press.
. 2013. The Great Puzzle: Kelsens Basic Norm. In Kelsen Revisited: New Essays on the
Pure Theory of Law, edited by L. Duarte dAlmeida et al., 4361. Oxford: Hart Publishing.
. 2014. Das Regulative Prinzip als Rettung der Reinen Rechtslehre Hans Kelsens? In
Wissenschaftsphilosophie im Neukantianismus. Anstze Kontroversen Wirkungen, edited by
C. Krijnen and K.W. Zeidler, 259281. Wrzburg: Knigshausen & Neumann.
Pino, G. 1999. The Place of Legal Positivism in Contemporary Constitutional States. Law and
Philosophy 18 (5): 513536.
Rawls, J. 1999. A Theory of Justice. Revised ed. Cambridge, MA: Harvard University Press.
. 2001. Justice as Fairness: A Restatement. Cambridge, MA: Harvard University Press.
Raz, J. 1980. The Concept of a Legal System: An Introduction to the Theory of Legal System. 2nd
ed. Oxford: Oxford University Press.
. 2009a. Kelsens Theory of the Basic Norm. In The Authority of Law, edited by J. Raz, 2nd
ed., 122145. Oxford: Oxford University Press.
. 2009b. The Purity of the Pure Theory. In The Authority of Law, edited by J. Raz, 2nd ed.,
293312. Oxford: Oxford University Press.
. 2009c. The Authority of Law. 2nd ed. Oxford: Clarendon Press.
Ross, A. 1957. Book Review: What Is Justice? Justice, Law and Politics in the Mirror of Science.
Collected Essays by Hans Kelsen. California Law Review 45 (4): 564570.
. 1997. Validity and the Conflict between Legal Postivism and Natural Law. In Normativity
and Norms. Critical Perspectives on Kelsenian Themes, edited by S.L. Paulson and B.L.
Paulson, 147163. Oxford: Oxford University Press. (Originally published 1961).
Rckert, J. 2016. Friedrich Carl von Savigny: Leben und Wirken (17791861). Cologne: Bhlau.
Schiavone, A. 1984. Alle origini del diritto borghese: Hegel contro Savigny. Rome: Laterza.
Schnberger, C. 2010. De ltat comme substance ltat comme function. In Hans Kelsen: Forme
du droit et politique de lautonomie, edited by O. Jouanjan, 4769. Paris: Presses Universitaires
de France.
Telman, D.A., edited by 2016. Hans Kelsen in America: Selective Affinities and the Mysteries of
Academic Influence. Dordrecht: Springer.
Weinberger, O. 1981. Normentheorie als Grundlage der Jurisprudenz und Ethik.: Eine
Auseinandersetzung mit Hans Kelsens Theorie der Normen. Berlin: Dunker and Humblot.
Part I
Legal Science Before the Tribunal of
Validity
Chapter 2
Kelsen andtheProblems oftheSocial Fact
Thesis

LorenzKhler

Abstract The social fact thesis stands in tension with the is-ought-distinction if it
identifies law with a set of facts. Kelsens theory instead stressed the normativity of
law, due to which law belongs to the realm of the ought and not to the realm of the
is. Insofar he is an opponent of the social fact thesis. However, there are other social
fact theses, some of which fit to Kelsens theory. This holds, in particular, for the
theory that norms are the meanings of social facts. Such versions too are confronted
with serious problems as they cannot explain the legal validity of both law-creating
norms as well as the law of non-contradiction and other fundamental rules. The
social fact thesis is hence either too weak, if it demands just the existence of any or
some social facts, or too strong, if it demands an accordance of facts and norms. So
even for positivism this thesis is not tenable.

2.1 Introduction

The concept of legal positivism is as hotly disputed as almost any other concept of
legal philosophy. Under dispute are, for instance, the questions whether law can
incorporate moral criteria or not, and whether law necessarily includes a claim of
legitimacy and authority. On one issue, however, there seems to be widespread
agreement. As Green emphasizes with regard to the most notable legal positivists
Kelsen, Hart, and Raz:
Although they disagree on many other points, these writers all acknowledge that law is
essentially a matter of social fact. (Green 2003)

Indeed, Raz maintains that:


In the most general terms, the positivist social thesis is that what is law and what is not is a
matter of social fact (Raz 2009, 37)

L. Khler (*)
Faculty of Law, University of Bremen, Bremen, Germany
e-mail: lkaehler@uni-bremen.de

Springer International Publishing AG 2017 23


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_2
24 L. Khler

Although there are other characterisations of positivism that do not refer to social
facts (see e.g. Gardner 2012, 19), this claim is widely supported by positivist theo-
rists. For instance, Coleman states:
Positivism claims that the possibility of legal authority is to be explained not in terms of
substantive morality, but, rather, in terms of certain social facts. Call this the social fact
thesis; no claim is more central to legal positivism. (Coleman 2003, 75)

Other authors equally stress the importance of the social fact thesis by referring to
the essence of the law. Himma, for instance, claims:
The most fundamental of positivisms core commitments is the Social Fact Thesis, which
asserts that law is, in essence, a social creation or artefact. (Himma 2002, 126)

Levenbook uses a similar characterization:


A rough approximation of the social fact thesis is that law is ultimately entirely a matter of
social fact. (Levenbook 2013, p.75)

Although these statements sound similar, there are important differences between
them. For it is one thing to hold, as in the case of Green and Himma, that law is a
social fact, and a different thing to hold, as in the case of Coleman, that legal author-
ity is to be explained by social facts. An explanation of something does not neces-
sarily concern its defining properties. Other properties might suffice. Legal
historians, for instance, could explain why some laws were adopted without stating
what exactly these laws meant. If one explains law by social facts, one need not also
claim that law is nothing more than facts.
One of the most prominent legal positivists for whom this difference between a
definition and an explanation seems to be important is Kelsen. For him, norms
belong to the realm of the ought and thus not the realm of the is to which facts
belong. Against Schlicks positivist attempt to interpret a norm as a representation
of a fact of reality Kelsen explicitly stated that norms that are created by these acts
are not facts of being, but a matter of content (Kelsen 1960, 60). Kelsen thus
denies that norms are facts. Statements of facts can, according to him, be true or
false, whereas norms could neither be true or false, but merely be valid or invalid
(Kelsen 1960, 76). The laws of causality relevant for facts do not apply to norms
(Kelsen 1960, 79). For these reasons ethics as well as legal science is, according to
Kelsen, a science about norms and not a science about facts (Kelsen 1960, 60). In
this regard, Kelsens theory seems far away from the claim that law is a matter of
social facts. However, Kelsen also claimed that positive law is created by human
acts (Kelsen 1960, 224). Norms are, according to him, the meaning of these acts.
Thus, for every norm there must be a social fact. In this way, Kelsen seems to follow
the social fact thesis. This raises the question, what does the social fact thesis mean
and can one attribute it to Kelsen?
This analysis seems worthwhile because the social fact thesis might entail sev-
eral distinct claims that are not necessarily mutually compatible. At least at first
glance, one can without contradiction understand law as a normative order that
emerges from certain facts without identifying it with them. Then, one would deny
the social fact thesis insofar as it conceives law as social facts, but support it insofar
2 Kelsen andtheProblems oftheSocial Fact Thesis 25

as it requires a factual basis for every norm. Therefore, this chapter argues that there
are several social fact theses rather than the social fact thesis. Kelsens theory illus-
trates these differences.
These differences are not only central to Kelsens theory, but have a more general
importance in comprehending the fundamental differences between several legal
theories. One can roughly classify them as legal empiricism, on the one hand, and
legal normativism on the other. Whereas legal empiricism claims that law can be
reduced to facts, legal normativism conceives law as an irreducible normative order.
This distinction concerns the question of what the law is and not the question of
upon what the law is based or whether it has a connection to morality. Hence, legal
normativism does not contain a claim that the law is based on non-positivistic
principles, as Alexy understands normative positivism (Alexy 2008, 289).
Similarly, neither empiricism nor normativism have to maintain that law might
include morality, as inclusive positivism argues, or that law cannot include morality,
as exclusive positivism argues. It can remain silent about this issue. The difference
between normativism and empiricism is, thus, not identical with the divide between
positivism and natural law theory (cf. Paulson 2000, 281). Various combinations of
these theories are, at least, conceptually possible. Kelsen could be seen as a norma-
tive positivist who demanded a factual basis for law, but resisted its identification
with facts as well as a connection with natural law.
In contrast, Hart and many of his followers could be understood as empirical
positivists who not only demand a factual basis for law, but think that law can be
reduced to it. The precise nature of this reduction might take on different forms and
is the central difficulty of empirical positivism. However, all of its versions agree
that one needs nothing more in addition to social facts in order to explain law and
that, in particular, no additional non-empirical rule or reason is needed for this pur-
pose. In contrast, Kelsen denied the possibility for such a reduction and seems, in
this respect, closer to the natural law tradition than to modern positivism. For natu-
ral law theories are orientated, in common in this particular aspect with Kelsen, to
understand law as a normative entity that has to be distinguished from facts. In
particular, it is because of the non-factual status of the basic norm, that the
Scandinavian realist Lundstedt regarded Kelsens theory as natural law (Lundstedt
1932, 211). Interestingly, Kelsen himself noted this potential affinity to natural law,
but insisted that the relative difference between his theory and natural law theory
is sufficiently clear in order to distinguish them (Kelsen 1960, 226). One can agree
with this, and still continue to insist that the affinity of Kelsen and the natural law
tradition is, due to their common normativism, one which distinguishes both of
them from legal empiricism.
Kelsens account of law as a non-factual normative entity might be plausible,
even if one denies many or even most of the other parts of Kelsens theory. It is,
therefore, pertinent to engage in more thorough consideration of the character of the
social fact thesis, whether Kelsens theory supports it and whether the reasons artic-
ulated in its support remain convincing. This chapter, through this consideration,
will reveal that the existing presentations of the thesis are confronted with the dif-
ficulty that law can neither be reduced to facts nor totally accords with them. Thus,
26 L. Khler

at present, the existing versions of the social fact thesis appear to lack convincing
reasons. The further problems with this thesis, such as the question of whether legal
facts could be reduced to more basic facts (see Greenberg 2004, 2006; Levenbook
2013, 75) and the question whether social facts can proffer reasons for actions (Toh
2008, 456), are not included in the considerations of the chapter.

2.2 The Necessity ofSocial Facts

What then does the social fact thesis mean exactly? In order to answer this question,
it is first necessary to examine, in general, how legal norms can rest on social facts.
Norms are only part of the law if they are valid. Validity is a normative property
which does not follow from facts, be they empirical or social. For facts concern state
of affairs as they are, whereas norms concern state of affairs as they shall or should
be. To conflate both constitutes a deontological fallacy. Kelsen, therefore, carefully
distinguished legal norms from nature, i.e., facts (Kelsen 1960, 60). Similarly, he
distinguished legal norms from social norms which, according to him, could be
summarized as morality (Kelsen 1960, 60). The difference of is and ought has also
relevance for normative principles in general. They cannot be justified by facts
alone because a fact is only relevant for the justification of a normative principle if
there is a normative reason for this justification (Cohen 2003, 219). Facts alone are
not reasons and could only, at best, form part of a reason. To treat law as a matter of
social facts, thus, exists in a tension with the difference between is and ought, if one
at the same time assigns law to the realm of the ought. An utterance as a physical act
must, for instance, be distinguished from the uttered proposition. In a similar man-
ner, the factual claim that a certain norm shall be valid has to be distinguished from
the norm itself (cf. Kelsen 1960, 218). A claim is raised at a certain moment and at
a certain place, whereas the norm might apply universally. Hence, a practice that
consists in such claims cannot itself constitute norms, although it might contribute
to their creation if there are, in addition, norms or reasons that transform the practice
into norms.
If one understands the social fact thesis as holding that law is merely a class of
certain social facts and nothing more, one misconceives the nature of a norm and
commits a deontological fallacy. It is not clear how the supporters of the social fact
thesis exactly avoid this fallacy (for the recent discussion, see Toh 2008, 461;
Levenbook 2013, 93). Hart, for instance, maintained that the existence of the rule of
recognition is a matter of fact (Hart 1961, 107) without explaining how it can
nevertheless be part of a system of norms. Facts about how people act according to
rules, or even believe in certain rules, are still distinct from the rules themselves.
The practice of recognizing certain rules as law is equally unable to show that these
rules are valid, but merely that people accept them as valid. A practice consists in
empirically identifiable facts and is, therefore, ontologically different from a norm
that has no material substance and cannot be empirically identified. The best one
can say is that a certain practice constitutes a certain norm, but is not identical with
2 Kelsen andtheProblems oftheSocial Fact Thesis 27

it. However, then one must give an exact account of how a practice can constitute
such a norm without first assuming a norm that gives this practice normative
relevance.
The social fact thesis can only avoid a confutation of norms and facts, if it either
qualifies the connection between facts and norms or denies the existence of norms
as non-empirical entities altogether. In the statements cited above one finds at least
unspecified qualifications of this connection between facts and norms. This finds its
clearest expression in Levenbocks formulation, that the law is ultimately entirely
a matter of social fact which assumes that law only ultimately is a matter of
facts (Levenbook 2013, 75). This creates the possibility for preserving the distinc-
tion between facts and law and to maintain that law merely depends upon facts.
Equally the formulations matter of social facts (Raz 2009, 3738, Green 2003) or
terms of certain social facts (Coleman 2003, 75) create space to argue that law
concerns social facts, rests on social facts or is about social facts, but is not identical
with them. All depends upon what matter of, terms of or similar qualifications
mean.
If one wants to take Kelsens insight seriously that law belongs to the sphere of
the ought, one must avoid the identification of law and facts, while preserving a
connection between them. At a minimum, one must demand facts for the validity of
legal norms as the central element of a legal system. They must be valid to be part
of the law. If there were to be no social facts necessary to explain the validity of
norms, the social fact thesis would be refuted. Hence, as a minimal requirement the
social fact thesis has to state:
(1) The norms L1Lo are legally valid, only if the social facts F1Fn hold.
This thesis does not exclude that the validity depends on further conditions such
as certain moral requirements. Neither does it give an account of the precise nature
of a norm so that a norm might, but does not need to be understood as a reason for
action. The thesis merely requires social facts in order for law to exist.
Interestingly, the connection of the conditions in (1) with the consequence that
certain norms are valid entails all elements which are necessary to constitute a
norm, namely a normative prescription that something should be the case. In this
case the prescription is the validity of the norms L1Lo. Proposition (1) therefore
can itself be understood as a norm or, at least, be transformed into a norm. Its pre-
scription consists in the validation of certain norms that have, as a consequence, to
be obeyed. One can call this prescription a validity creating norm.
A validity creating norm resembles, in this role, Kelsens basic norm as well as
Harts rule of recognition. All of them validate law. However, the validity creating
norm does not share the further claims that are connected to these particular theo-
ries. Its status remains open and can be differently interpreted by various legal theo-
ries. One does not have to decide whether it is a cognitive condition for the perception
of law, a precondition (cf. Kelsen 1960, 197, 202; Spaak 2005, 406), a fiction
(Kelsen 1979, 206), an established practice of officials (cf. Hart 1961, 106) or a
category transformation (Peczenik 1982, 61). It merely states the conditions for the
validity of legal norms. Without it, social facts could not be regarded as law.
28 L. Khler

2.3 The Rejection ofAbsolute Natural Law

One of the chief opponents of the social fact thesis is the natural law theory, whose
central thesis is that not all law is created by human beings. Instead, there are,
according to this theory, norms which are not based on human acts, such as adopting
a law or reaching an agreement. Rather, they are found in nature or given with it. As
with positivism, there are several versions of natural law theory, from the weak ver-
sion that there are norms that apply unless there is positive law relating to the par-
ticular situation (e.g. Grotius 1625, ch. 2, art. 5) to the strong version that these
natural norms hold even against contravening positive law (cf. Aquinas 1273, II, q.
95, art. 2).
Interestingly, natural law theory is not necessarily incompatible with version 1 of
the social fact thesis, that certain facts have to hold in order for law to exist. It is
compatible, insofar as natural law theory maintains that norms only exist in societ-
ies and that, therefore, the validity of any norm depends on the existence of a soci-
ety. Thus, one could not explain the validity of norms without assuming the existence
of certain facts. Natural law theory could thereby agree with the social fact thesis
that the validity of legal norms depends on the existence of certain facts. The central
difference is that natural law theory denies that the content of law is exhausted by
these facts, whereas positivism assumes this. The disagreement is therefore not
related to whether social facts must hold, but concerns whether one requires, in
addition, rules or reasons or other normative entities to constitute law. Hence, it is
misleading to distinguish positivism from non-positivism by an unspecified social
fact thesis, because this suggests that non-positivist theories could not demand
social facts for the existence of law. Even natural law theories could agree with this
claim. The same holds for Dworkin when he understands law as a practice justified
by certain principles (Dworkin 1986, 227). For even in his theory there is a dimen-
sion of fit, i.e., existing social facts that cannot be reduced to principles.
Only a strong version of natural law theory maintains that certain norms are valid
no matter what state of affairs holds. It would, for these norms, altogether deny the
necessity of facts. The philosophical equivalent would be fact-insensitive normative
principles whose reasonableness does not depend on any fact (cf. Cohen 2003, 231).
This position could, for instance, state that human rights do not depend upon any
factual circumstances including the adoption of human rights declarations. Then, it
would state, for instance:
Human beings have to be treated by everyone with dignity, no matter which social facts
hold.

In this instance, the validity of the dignity-requiring norm does not depend on facts
although its consequences are relevant only if human beings exist. Consequently,
certain norms L1Lo would be valid without any social facts F1Fn. For such a
position, as far as the validity of the dignity-requiring norm is concerned, it would
not matter what the legislator said and what people agreed about. One would be
concerned with absolute natural law.
2 Kelsen andtheProblems oftheSocial Fact Thesis 29

Interestingly, nothing in the formulation of such a theory refers to a concept of


nature. It is confined to stating that certain norms are valid, no matter which social
facts prevail. This could be just as true for theories that require logical consistency
for the validity of norms independent of the particular norms in a legal system and
independent of any social facts. To define such a theory as a theory of natural law
would obfuscate its minimal content confined to requirements of logical consis-
tency. With this terminology, one could even regard Kelsens pure theory as a natu-
ral law theory, because it stressed that certain laws of logic apply to the law (Kelsen
1960, 210). Thus, the rejection of natural law broadly understood is more difficult
than it first appears.
If the social fact thesis has any meaning, there must exist certain social facts for
every legal norm. Only if they hold can a legal norm be valid. The set of Fi in version
1 should, according to the social fact thesis, not be empty. In this regard, Kelsens
theory accords with the social fact thesis. One of his main goals was to separate
positive and natural law (Kelsen 1960, 225). His theory therefore excludes valid
norms that do not depend upon any underlying social fact. Besides, he understood
norms as the meaning of an act (Kelsen 1960, 5). Therefore, according to his theory,
every norm presupposes an act and thus a fact. Without an empirically identifiable
act a norm could not come into existence (Kelsen 1960, 76).
However, as already mentioned, even such an insistence on (social) facts is com-
patible with non-positivist theories. A weaker natural law theory could recognize
the necessity of social facts for the existence of law, but deny that law can be reduced
to them. It could, for instance, argue that a condition for the existence of every legal
order is that there are, at a minimum, some people who agree that law exists and that
the norms created by them are not morally grossly repugnant. Although a social fact
is, then, the condition for the validity of any legal norm, the content of the law
would still be constituted in part by moral considerations. If one holds such a non-
positivist thesis one could still agree with the denial of strong natural law without
denying the importance of moral considerations for law altogether.
The possibility of non-positivist theories requiring, for every legal norm, a fac-
tual basis is frequently obfuscated by terminology that merely distinguishes between
positivism and natural law theory (e.g. Kelsen 1960, 225; Raz 1980, 212). This
terminology hides the variety of non-positivist theories. This is true especially for
theories that merely recognize minimal, natural rules of logical consistency, as
opposed to theories that recognize substantive morality as a part of the law. Not all
non-positivist theories have to hold the strong natural law position that there are
certain legally valid moral norms no matter which social facts hold. The recognition
of social facts as a basis of every legal norm does not exclude that one demands, in
addition, certain normative requirements which every norm has to meet. Non-
positivist theories could, hence, agree that there have to be some (social) facts in
order for law to exist. The mere demand of some social facts is, therefore, incapable
of characterizing positivism or distinguishing it from the more promising candi-
dates of natural law theory.
30 L. Khler

2.4 The Rejection ofAdditional Normative Requirements

If the social fact thesis wants to state more than the triviality that there must exist
some facts for every norm, it has to be extended or specified. This section explores
the first option of extension, while Sects. 5 and 6 concern the latter option of speci-
fication. An extension of the thesis could consist in the exclusion of any additional
requirement which a norm must fulfil in order to be valid. In this case, one deals
with a strong version of the social fact thesis, according to which social facts are not
only necessary, but sufficient for the validity of a legal norm (cf. Raz 2009, 40). In
this case, the validity creating norm becomes:
(2) The norms L1Lo are legally valid, only if the social facts F1Fn hold, no mat-
ter whether they fulfill any normative requirements Ni.
The excluded additional requirements could be formal ones, such as a sufficient
clarity, and substantial ones, such as moral requirements. The rejection of normative
requirements for law accords thus far with Kelsens theory as he claimed that it can
acquire any content (Kelsen 1960, 68). This would, of course, not exclude that legal
norms are compatible with moral requirements or even refer to them, as inclusive
positivists argue (cf. Kelsen 1960, 351; Himma 2002, 125; Coleman 1998, 259,
264). But this agreement of law and morality would be a contingent matter.
It is important to stress that the negation of normative requirements is not neces-
sarily connected to the claim that there must be social facts in order for law to exist.
This can be seen in the difference between version 1 and version 2 of the social fact
thesis: whereas version 1 demands a factual basis, only version 2 maintains that
there should not be any additional normative requirement. A legal theory could even
limit itself to negating moral requirements which legal norms have to fulfil without
requiring for every norm the existence of certain social facts. Then, one would be
confronted with a non-factual positivism which once more casts into doubt the con-
nection of positivism and the social fact thesis.
In contrast, a legal theory that requires minimal standards of morality for the
validity of a norm could still demand that for every legal norm Li certain social facts
F1Fn hold. Then, the validity of every norm does not solely depend upon its mer-
its, which comes very close to the negation of this dependency by positivism
(Gardner 2012, 19). For instance, Radbruch understood law as an artefact and nev-
ertheless argued, at least in his later period, that law cannot acquire any content
(Radbruch 1932/2003, 3, 216). Instead, he demanded that law should not infringe
basic requirements of justice. As a comparison between version 1 and 2 shows, such
a position need not be contradictory. Both do not exclude each other. Demanding a
factual basis for every norm neither demands nor excludes additional normative
requirements. In a similar manner, Alexy maintains that law comprises a factual as
well as in ideal dimension (Alexy 2008, 287). The presence of the ideal dimension
of law in Alexys theory entails a necessary claim to correctness and cannot become
grossly unjust (Alexy 2008, 294296). Nevertheless, he also demands a factual
dimension so that he could be understood as agreeing with thesis 1.
2 Kelsen andtheProblems oftheSocial Fact Thesis 31

Therefore, supporters of the social fact thesis have to defend version 2 if it is to


constitute the most fundamental of positivisms core commitments (Himma 2002,
126) and, thus, be the feature with which to distinguish positivism from non-
positivism. However, it is implausible that the total exclusion of normative require-
ments in version 2 can be defended. For this would rule out such minimal
requirements as a sufficient clarity that, at least trained lawyers, could approxi-
mately understand the norm or the application of deontological logice.g., that a
certain behaviour cannot at the same time be allowed and prohibited. As soon as one
recognizes, independently of any particular social fact, these minimal requirements
as law one denies this version of the social fact thesis. It is difficult to understand
that anybody would defend such a thesis and abandon even these extremely minimal
requirements such as logical consistency. At least Kelsen is not one of them, as he
acknowledged in the pure theory that laws of logic apply to the law and thus recog-
nized minimal normative requirements (Kelsen 1960, 27, 210),

2.5 The Reference ofSocial Facts toNorms

Another way for the social fact thesis to avoid becoming trivial by demanding
merely the existence of some social facts is to specify which social facts must exist
in order for a legal norm to be valid. Such a specification could possibly consist in
the reference of social facts to the content of the constituted rules. The formal
expression of this version states:
(3) The norms L1Lo are legally valid, only if for every norm Li there is a social
fact Fi such that Fi refers to Li.
This condition ensures that any legal norm could be traced back to a social fact. The
content of the law could be found in the reference of social facts to legal norms. For
that purpose, one would not require any other source.
One example of this connection is an Austinian command theory, which concep-
tualizes legal norms as the commands of the sovereign (Austin 1861, 5). The com-
mand, as a factual act that takes place at a certain moment, could be distinguished
from the norm constituted thereby, whose application is not necessarily confined
just to the specific moment of its utterance, but possibly for an unlimited period.
Therefore, the command as the social act is not identical with the norm constituted
by it. Nevertheless, both are connected as the command intends to establish the
norm. Hence, one has a social fact referring to a specific norm.
Similarly, Harts theory can be understood as a refined version of such a refer-
ence of facts to norms. For Hart, a combination of primary and secondary rules
constitutes the legal system. The primary rule of recognition determines the facts
which must hold in order for other norms to be valid (Hart 1961, 97). If this rule
confers the legislative authority upon Parliament, then an act of Parliament creates
a norm. Such an act is made with the intention to create a specific norm and thus
refers to it.
32 L. Khler

There are, however, at least three problems with this version of the social fact
thesis. First, there could be many acts that are intended to create law. Any person or
institution can pretend to create law by designing a rule of recognition and perform-
ing a certain act that creates, due to this rule, legal norms. However, not every such
claim can succeed. Otherwise one would have on the same territory many contradic-
tory legal systems. Even children or religious communities could without further
requirements create law. The binding character of law would become opaque and
law would mean nothing more than the claim that certain rules are valid.
Therefore, one must have criteria in order to determine which competing claims
to recognize as law. One might, for instance, regard as law only norms that explain
the overall practice or the exercise of state power or that have a certain efficacy (Raz
1980, 203; 2009, 43). One would thereby exclude from law certain not widely rec-
ognized claims that a particular act creates law. However, even the existing practice
can be compatible with a variety of claims regarding the law. This is, in particular,
true in relation to claims that the practice entails some exceptions about which no
court had yet made a specific decision. The reasons for choosing among these claims
are neither empirical nor social facts, but normative in kind. They justify why one
set of social facts deserves recognition as law, while other sets of social facts do not.
Thus, it does not matter in this regard which criteria one prefers. The important
point is that one needs non-factual criteria to decide which facts constitute law. This
holds not only for the choice among competing claims about what the law is in rela-
tion to a particular question, but also for the choice about which facts, in general,
constitute law. This could be utterances of the legislator, attitudes of the involved
people, etc. (Greenberg 2004, 175). Facts alone do not suffice to decide which facts
shall be considered decisive and which not. They can merely be summarized and
classified.
This necessity of choosing social facts by normative reasons does not disprove
the social fact thesis altogether. For one can distinguish between the question what
shall count in general as law?, and the question what is law in a particular legal
system? The first question concerns the definition of law and the latter the applica-
tion of this definition. There is, in other words, a difference between the meta-level
claim about law and the object-level of law (cf. Himma 2002, 135). It is at least
conceptually possible to confine the social fact thesis to the object-level and to
define law on the meta-level by normative criteria. Then, one would have normative
criteria for the adoption of the social fact thesis.
However, such an adaptation would impose a considerable limitation upon the
explanatory power of the social fact thesis. For, then, it could no longer explain what
is to count as law and what is not to count as law. Instead, normative criteria would
become decisive for this question. Only those criteria could determine why judges
apply as law a certain set of rules rather than another. A strict sociological analysis
could not explain the binding character of law. As a mere description, it does not
inform the judge what to do, but merely indicates which actions accord with an
established practice. As soon as one wants to know which claim a judge should
recognize as law or understand whether a claim is binding, normative criteria
become unavoidable.
2 Kelsen andtheProblems oftheSocial Fact Thesis 33

The importance of normative criteria for the definition of law must be distin-
guished from the possible role of normative considerations in the determination of
particular legal rules. As the discussion of normative requirements in version 2
made clear, morality and other normative considerations can play a role in this
regard as well. Denying their role in a rule of recognition does not exclude their
importance in the norms recognized by this rule. One would have to explain why
normative requirements that are acceptable on the meta-level should under no cir-
cumstances be acceptable on the object-level.
An inclusive positivist could object that any rule is part of the law only because
there is a rule of recognition referring to it and that this rule of recognition does not
depend on normative considerations, but merely on social facts. Therefore, all law
would ultimately depend not on normative considerations, but on an established rule
of recognition. However, in this case, the same difficulty arises: one must explain
why one shall recognize one rule of recognition rather than another. The social fact
thesis in version 3 is unable to provide these reasons. It remains unclear which
social facts one should regard as law in the midst of competing claims about what
the law is. Ironically, the more positivism realizes its restriction to facts, the more its
determination of law fails because the less it is able to distinguish between compet-
ing factual claims concerning what the law is. Interestingly, the same does not hold
for the determination of physical laws by empirical facts. They uniformly demon-
strate these laws. There is no necessity to choose among competing data before a
scientific theory could be proved. Any fact which is incompatible with a certain
hypothesis would suffice to disprove it. Therefore, the determination of legal rules
by social facts is unlike the determination of scientific laws by natural facts.
A second problem with version 3 of the social fact thesis is that the norm-
character of the validity creating norm becomes questionable. Once it is, by its
content, a legal norm, it must itself, according to version 3, be based on social facts
that refer to it. Otherwise it would refute itself. To prove its norm-character it would
not suffice to show the existence of a practised rule of recognition according to
which certain types of norms are treated as legally binding. For version 3 demands
a stronger connection between social facts and the norm constituted by it, namely,
that these social facts refer to it. Therefore, it must demonstrate that there is a prac-
tice of establishing a legal system by a reference to a validity creating norm.
No such reference can necessarily be found in legal practice. It is, instead, domi-
nated by the application of existing norms and not concerned with the jurispruden-
tial question of how these norms are constituted. It can assume that law already
exists and therefore need not be created. Even changes to a constitution are no
exception in this regard. For such changes are made under the premise that certain
legal rules apply that prescribe the conditions under which constitutional changes
should be accepted. A meeting of a constitutional assembly would, in addition, not
suffice to prove the practice of establishing a validity creating norm, because such
an assembly already operates under the law and assumes, for instance, that it is
empowered to adopt a constitution. There simply is no discernible practice of creat-
ing a legal system ex nihilo.
34 L. Khler

Interestingly, Kelsen did not refer to an actual practice but to the first historical
constitution as a foundation of law (Kelsen 1960, 47, 203). However, then the ques-
tion is which constitution he means. If one engages in a backward-looking, histori-
cal investigation, one might very well find, instead of acts supposed to create law,
the assumption that law has always existed or was created by God (cf. Aquinas
1273, II, q. 93, art. 3). Legal practice can, at best, be reconstructed as implicitly
creating such a system. But an implication is different from an intention. To demand,
as thesis 3 does, intentions or other forms of reference to found a validity creating
norm thus appears too ambitious. Even Hart argued that the rule of recognition is
for the most part . not stated, but its existence shown in the way in which
particular rules are identified (Hart 1961, 98). What is shown though is not neces-
sarily what is intended or what is referred to.
If one takes as fundamental the first historical constitution (Kelsen 1960, 47,
203), one would have to show that the people involved did not only intend to create
the constitution, but also intended to establish a rule according to which the first
constitution should be valid. There is no plausible historical narrative, let alone
historical evidence, concerning such an assembly. Kelsen himself did not claim that
the basic norm is the result of a historical or sociological analysis. Rather, it has to
be understood as a precondition or a reconstruction. The problem for the social fact
thesis 3 is, in that regard, the lack of suitable social facts, notwithstanding the argu-
ment that even the existence of such historical facts would not suffice. Even if such
facts existed, one would still have to explain why an intention to create a norm is,
from a normative point of view, sufficient to create it. Facts are neither norms nor
create norms. They are, at best, part of the conditions for norms to arise. Normativity
does not emerge from facts alone.
One might, initially, seek to avoid the problem of explaining the norm-character
of the validity creating norm by denying its legal status. This would have the advan-
tage of avoiding the necessity to base this rule, according to thesis 3, on social facts.
Raz, for instance, denies that the criteria of validity are part of the law and conceives
of them, instead, as a jurisprudential criterion (Raz 1980, 200). The social fact
thesis would then be confined to the object-level of particular legal norms. This sug-
gestion, however, is confronted with equally serious problems. If there is no legal
rule of recognition, the legal status of any norm constituted by it becomes question-
able. A reference to a non-legal rule cannot create law. All a jurisprudential crite-
rion could do is to explain why some rules should, as a matter of jurisprudence, be
recognized as law. But this is very different from the claim that these rules actually
are law. It would have to be shown why jurisprudence has the capacity to create law.
If one leaves aside this problem of the laws foundation, the question remains
whether thesis 3 is plausible for the ordinary object-level legal rules. At least for
rules created by courts, this claim is questionable. For either a court only declares
the law and lacks the power to create legal norms by precedents; then, its judge-
ments alone do not constitute law and the intention to do so would fail from the
outset, or a court has this law-creating power because its judgements become prec-
edents. According to version 3, one would then have to claim that every precedent
2 Kelsen andtheProblems oftheSocial Fact Thesis 35

is accompanied by an intention to create a certain norm. This claim is compatible


with the so-called announcement approach according to which courts announce the
ratio decidendi which is binding in later cases. This approach, however, is neither a
necessary aspect of any precedent-based case law, nor the dominant one even in the
Common Law (cf. Eisenberg 1988, 52).
Instead, courts frequently make judgements without explicitly declaring which
rule they hold decisive. This is then the task for subsequent decisions by later
courts (Duxbury 2008, 74). For this purpose, these courts have to reconstruct the
previous decisions. The process of finding the ratio decidendi can be a cumber-
some process. Later courts might declare that certain formulations or even inten-
tions of the precedent setting court are not binding because they reached beyond
the scope of what the court had to decide. After a precedent is made, it is only clear
that a certain case shall have a particular result. Different norms can be constructed
for justifying the connection between facts and the result which is reached. One
could, for instance, vary the level of abstraction and justify a decision about a red
BMW with a rule referring to red cars, or a rule referring to vehicles or even a rule
referring to all material things. Later decisions can shape the rule which suppos-
edly follows from the precedent. The law works itself pure (Dworkin 1986, 400).
From the competence of courts to create precedents, it does not follow that they
have to refer to a certain rule. Nothing precludes a situation in which they implic-
itly state the law.
Interestingly, a similar picture emerges when one examines the manner in which
the law is derived from statutory provisions. A judgement might rest on a singular
statutory norm which can be applied without further interpretation. But this is not
the case when courts apply different norms and decide about their interplay. Then,
they must determine whether these norms restrict each other, exclude each other, or
have to be combined with each other. In finding the rule for a case, many techniques
can be applied including analogies as well as narrow and broad constructions. The
lawyers task is to utilize this machinery of different techniques and arguments. The
applied methods can only in part be based on statutes because even statutory rules
of interpretation have to be interpreted. Rules cannot completely determine their
own application (cf. Wittgenstein 1952, 201, but see Kelsen 1960, 73).
Because of this necessity to interpret statutory norms and to decide about their
interplay, a difference between the rules formulated in statutes and the rules that
courts finally apply emerges. This is most obvious in the case when statutory norms
contradict each other and courts must decide which norm prevails. Therefore, norm-
formulations are not identical with norm-content (Guastini 1998, 322). Statutory
norms provide only part of the rule that is finally applied. Due to this difference
between the textual basis of statutory norms and the applicable rule, the requirement
that each rule is based on a social fact referring to it becomes questionable. For the
legislator could hardly foresee the precise interpretation on which a court will ulti-
mately settle. The requirement for a reference by the statutory norm to the norm
applied in court appears overly demanding.
36 L. Khler

This is not to say that the interpretation of law by the courts does not rest on a
textual basis. It merely means that creating a singular norm or statute is very differ-
ent from applying the totality of legal norms to a particular case. The creation of a
norm is concerned with one statement or one statute, whereas the interpretation has
to take seriously the totality of law. Therefore, one cannot necessarily find for every
applied norm a previous act intended to create this norm with its specific content (cf.
Dworkin 1986, 19). Rather, the interpretation has to make choices which are based
on the totality of norms and, thus, not necessarily foreseen in the adoption of a par-
ticular statutory norm. There might even be cases in which the intention of the leg-
islator diverges from the courts interpretation. One might criticize this and demand
a strict textual interpretation but one cannot conceptually exclude this difference.
Legal systems might, therefore, operate in a way that there is not for every norm Li
a social fact Fi such that Fi refers to Li. For neither the legislator nor the courts neces-
sarily know what effect their decisions have upon the existing law. Law creation
remains different from law application.
Kelsen recognized the possible difference between the norms created by the leg-
islator and the norms applied by the courts. According to Kelsen, the judge creates
law in such cases. This holds true especially if the legislative provision was contra-
dictory (Kelsen 1960, 210). In this case, however, thesis 3 would confront the
above-described problem that one cannot necessarily attribute a law creating inten-
tion to the judges. What judges intend by adopting a certain decision is not always
identical with their concrete decision-making. They might decide a certain point
without reflecting on the fact that it is they who decide because they think that they
are merely applying the law created by the legislator. Because of this possible dif-
ference between what judges think and what they do, one cannot demand for every
act of judges or legislators an intentional reference to the subsequently applied rule.
Interestingly, even Kelsens theory entails examples of a divergence between the
intended meanings of rules and their legal content. In many instances, he is con-
cerned with established legal concepts, and claims that their meaning is different
from that which is usually attributed to them and, in many instances, has become
their assumed meaning. For instance, he criticizes the understanding of property as
a right of dominion over a certain thing as a reflection of ideology (Kelsen 1960,
135). Following Kant, he maintains that property, in a similar manner to any other
right, only concerns the relationship between people, i.e., that the owner can exclude
everybody else from its usage. There is no legal relationship between a person and
a thing (Kelsen 1960, 136).
It is, at this point, not of importance whether such a conception of property is
convincing or not. The point which is of significance is that Kelsen offers a different
interpretation of a legal concept from that of the predominant understanding and, in
this regard, Kelsen was unconcerned whether this understanding prevailed at the
time the concept was adopted by the legislator or was utilized by the courts. In rela-
tion to the existence of another understanding, Kelsen seeks to indicate the error of
the predominant understanding. In this regard he might succeed. But then, one can-
not claim that the concept was created with the intention that refers to its exact
content. Thesis 3 is, thus, for Kelsen, as for any other legal theory unconvincing.
2 Kelsen andtheProblems oftheSocial Fact Thesis 37

The meaning of a law creating act can, at least in part, be determined by reasons
which are distinct from those which the legislators or the judges had in mind or to
what they referred.

2.6 The Reference ofNorms toSocial Facts

Since the reference of social facts to norms becomes entangled in serious problems
as an explanation of all legal rules, one could try to pursue a path in the opposite
direction and to demand a reference of norms to social facts in order to explain their
relevance. This is, at least, according to Himma, the meaning of the social fact the-
sis. On his account, legal norms instantiate a property that makes reference to some
social fact (Himma 2002, 126). Such a position could be understood as stating:
(4) The norms L1Lo are legally valid, only if there is for every norm Li a set of
social facts Fjk to which this norm Li refers.
This claim is surprising, insofar as legal norms usually do not refer to facts, but state
conditions under which certain legal consequences occur. Neither the conditions
nor the legal consequences need prevail. Norms might simply make prescriptions
for a hypothetical state of affairs. The prescription, for instance, that one shall be
punished by a life sentence, if one kills another person, neither presupposes that a
killing happens nor that somebody is imprisoned. On the contrary, this norm tries to
prevent such a killing. The social fact which a norm is supposed to refer to cannot,
therefore, concern the norms content. Otherwise, the social fact thesis could all too
easily be refuted. It would not only be incompatible with norms expressed in condi-
tionals but also with other norms that define a certain state of affairs. A status defin-
ing norm does not need to entail any factual condition. An example of such a norm
is The national flag shall be (Cf. Art. 22 par. 2 German Basic Law). It does not
entail any reference to a prevailing fact although it intends that certain facts shall
prevail. Thus, not all norms refer in their content to social facts.
Hence, this reference must concern not its content, but some other property. The
property that Himma probably has in mind is the norms pedigree. Therefore, in
explaining the social fact thesis, he cites Austins theory that legal norms are the
sovereigns commands supported by a threat of a sanction (Himma 2002, 126). This
pedigree could be a fact to which a norm refers. Similarly, Himma treats Harts
theory as another version of the social fact thesis (ibid., 126). If this theory should
accord with the social fact thesis 4, each legal norm would have to refer to the rule
of recognition or some other social fact, due to which it counts as a legal norm.
This version of the social fact thesis creates a closer link between facts and rules
than the mere demand that there is some social fact. However, the demand that every
norm refers to its pedigree is not shared by all positivists. Even for Hart it seems
questionable. One could interpret his rule of recognition as a reference of a meta-
norm to the object-level norms. But this is the opposite from demanding a reference
of each object-level norm to the meta-norm. For, then, every legal rule would not
38 L. Khler

only have to state the conditions under which its legal consequences occur, but
would also have to explain why it is a valid rule. Only then would the reference to a
social fact become plausible. The demand for a reference of each norm to its pedi-
gree is very different from merely demanding that each norm shall have a
pedigree.
This is a further instance in which Kelsens theory does not support such a ver-
sion of the social fact thesis. For Kelsen, a norm means that something shall exist or
shall happen (Kelsen 1960, 4). This does not necessarily include a reference to its
pedigree or some other social fact. Such a reference might assist in the justification
of the norm, but is not a necessary part of it. The lack of necessity, in Kelsens the-
ory, fora norm to have to refer to a fact can also be seen in his comparison of a norm
and a will. Kelsen, in a number of instances, compared the will with a norm, and
thought that an act of will can found a norm if there is a meta-norm which bestows
validity upon this will (Kelsen 1960, 7). Apart from the validation of the will, the
meta-norm does not have to have a specific content. Therefore, the propositional
content of the will must be the same as the propositional content of the norm. But as
no will has to refer to a fact, no norm needs to make such a reference.
Beyond the positions of Hart and Kelsen, it seems, in general, doubtful why each
norm should refer to its pedigree or some other social fact. Such a reference would
be necessary only if each norm would have to justify its validity and that part of this
justification would be a certain social fact. But both premises seem doubtful. First,
there is no reason why each norm should justify its validity and could not leave this
question open. Second, even if an attempted justification would be a necessary part
of every norm, it would still be questionable why a reference to a particular fact is a
necessary part of such a justification. There could be many other sources of justifi-
cation, including other rules or moral reasons. A norm could refer to those justifica-
tions, even if one separates law and morality. For this separation does not by itself
exclude that there is a moral justification of legal norms and that legal norms refer
to it. It merely states that this justification is not part of the law and that it does not
have to succeed in order for a norm to be valid. A necessary reference of every legal
norm to a social fact is, hence, implausible even from a positivist point of view.

2.7 A
 ccordance inthePropositional Content ofSocial Acts
andLegal Norms

If both the necessary reference of social facts to norms as well as the alternative,
opposite reference of norms to social facts fail as a condition for the validity of legal
norms, the question remains whether there is a plausible version of the social fact
thesis. It has to claim more than the mere existence of some social fact, but less than
a reference to them. If one abolishes this reference, the identity of the propositional
content of norms and facts remains. At a minimum, the social fact thesis has,
2 Kelsen andtheProblems oftheSocial Fact Thesis 39

therefore, to demand such an identity because it would otherwise have to recognize


other sources of law.
If the legislator, for instance, says The usage of drugs is prohibited, then the
propositional content of the norm The usage of drugs is prohibited accords with
the propositional content of the prohibition. Nevertheless, one can distinguish
between the prohibition as an act and the prohibition as a norm resulting from this
act. The formal expression of this version of the social fact thesis states:
(5) The norms L1Lo are legally valid, only if for every norm Li there are social
facts FjFk the propositional content of which entails the propositional content
of Li.
Although Kelsen does not explicitly consider such a reconstruction, one can find in
his theory statements that are at least compatible with it. According to Kelsen,
norms are the meaning of law creating acts (Kelsen 1960, 5). Norms are schemes
of interpretations of facts (Kelsen 1960, 3). This fits well with the claim that the
propositional content of norms accords with the propositional content of law-
creating acts. The background for this identity is Kelsens aim to purge law of all
moral and other supposedly metaphysical ingredients. Once there is nothing but
facts that contribute to the content of law, the content of law must rest completely
upon facts. There would be no other source that could possibly contribute to it.
For many legal norms one might, indeed, find such an accordance in the propo-
sitional content of law and the law creating acts. The legislator can by certain acts
transform his intentions into law. Then one has an accordance of law with the propo-
sitional content of the law creating acts. If law could not, in the main, be discerned
from such facts, it could not regulate behaviour because then its subjects would not
be able to know or change its content. For this reason, social facts have to exist
which the subjects of the law can recognise in order to plan their actions. Therefore,
it is not surprising that for some or even most norms there is an accordance of law
and certain social facts. The question is merely whether this is necessarily the case
for all norms. The social fact thesis, in version 5, maintains this by excluding the
validity of any norm whose propositional content does not accord with the proposi-
tional content of one or several social facts.
This consequence creates serious problems. First, it is not compatible with the
norm-status of the validity creating norm. As discussed for version 3, there is no
discernible social practice of creating a legal system in which the propositional
content of the practice and of the norm created thereby were identical. Judges apply
law rather than decide about the laws foundations. At best, they presuppose a valid-
ity creating norm. However, a presupposition is different from the content of an act.
It is one thing to hold that the application of a rule presupposes a meta-rule and
another thing to hold that this application states the meta-rule.
Second, the thesis is incompatible with the application of basic requirements,
such as the law of non-contradiction, to the law. It is reasonable to assume that a
legal system could entail this law, even if as usual the legislator did not adopt it.
For a legal system could not reach any of its ends, such as regulating or coordinating
human behaviour, if it could at one and the same time require with validity both an
40 L. Khler

act as well as its omission. As indicated, Kelsen acknowledged that the laws of logic
apply to the law (Kelsen 1960, 27, 210), but did not explain how this is rendered
compatible with the claim that norms are the meaning of facts. For which facts
could be interpreted as creating laws of logic and allowing their application to law?
Kelsen later denounced his previous position and assumed that norms could
contradict each other. This shows the difficulty his theory has with the inclusion of
laws of logic (Kelsen 1979, 169).
Finally, it is questionable whether version 5 holds for any imaginable legal sys-
tem. If one conceives law as an empirical, recognizable entity, then one might, in a
sociological analysis, regard as law only the norms that one could trace back in the
manner discussed to social norms. However, then version 5 is not a conceptual truth
about law, but merely the consequence of ones own sociological conception. From
this conception, it does not follow that there are no other possible conceptions of
law. To be sure, law can only fulfil its function if its content accords with the overall
content of social facts and can thus be known. However, this claim depends on con-
tingent circumstances and is not a necessary truth about all possible norms.
One could, for instance, argue that norms, whose content is as plausible as the
law of non-contradiction, are able to be part of the law even if they were not consti-
tuted by certain acts. This would at least not threaten the behaviour-guiding function
of law. The potential candidates for such norms would be, for instance, the minimal
requirement that a norm should be sufficiently clear that its content could, by rea-
sonable means, be known. It is not important whether such a norm is a necessary
element of any legal system. For it is sufficient, at this point, that nothing in the
concept of law prevents that such fundamental norms are part of the law, although
there was no social act that constituted them. The total accordance between the
propositional content of legal norms and social facts becomes, as a result, placed
into doubt. It is not plausible that every possible legal system is characterized by it.
This should not come as a surprise. If one conceives of law as a normative order in
which basic requirements of reason, such as non-contradiction, are observed, then
nobody could guarantee its accordance with social facts. For there is no guarantee
that reason always prevails in practice.

2.8 Conclusion

The claim that all positivist theories are in agreement concerning the social fact
thesis seems questionable if this thesis equates law with social facts. For Kelsen
argued convincingly that norms are not facts. One must take seriously the ontologi-
cal difference between is and ought. Therefore, one can only in a qualified sense
regard law as a matter of social facts. There are several opportunities for such a
qualification and hence several social fact theses.
A weak version of this thesis denies the existence of norms whose validity does
not depend upon any social fact. Kelsen supported this claim, as demonstrated by
his opposition to natural law. However, such a thesis does not exclude additional
2 Kelsen andtheProblems oftheSocial Fact Thesis 41

normative requirements for legal norms to which even rules of morality might
belong. Therefore, the social fact thesis must define a closer link between norms and
constituted facts, if it is to be non-trivial and capable of distinguishing positivist
from non-positivist theories.
Such a link could possibly rest upon the reference of social facts to norms or the
opposite reference of norms to social facts. Both of these attempts, however, run
into serious difficulties. The legislator does not necessarily refer to the subsequently
applied norms when he adopts a certain statute. The same holds for judges who cre-
ate precedents without necessarily knowing the overarching purpose of the prece-
dent and its future use. This indicates that the process of law creation is different
from the process of law application and that this difference can become a significant
divergence in which a reference of the former to the latter is not always possible.
There is also no reason why every norm must refer to a social fact. A norm could be
confined to the statement that under certain conditions a certain legal consequence
shall occur.
Even the minimal requirement that the propositional content of legal norms
accords with the propositional content of certain social facts seems implausible as a
necessary condition for any norm. Undoubtedly, one might find such an accordance
in many cases for the simple reason that law has to be public in order to be obeyed
so that there is as a social fact, at least, the announcement of a norm. However, this
does not show that no norm exists that cannot be entirely traced back to social facts.
At least for validity creating norms and the law of non-contradiction this thesis does
not hold. There is neither a discernible practice of founding law or logic, nor can
such a practice exist. The social fact thesis is thus in all its presented versions, at
best, overstated.
There might be other versions of the social fact thesis that create a weaker link
between social facts and law. They might, for instance, claim that law supervenes on
social facts, emerges from them or is grounded on them. However, with these ver-
sions the reduction of law to facts becomes spurious, as these theories acknowledge
a gap between social facts and law that has to be overcome by supervenience, emer-
gence, or another concept that attempts to bridge it. These theories are then effec-
tively reducible to the already discussed thesis that certain social facts have to exist
in order for legal norms to be valid. In relation to such a thesis, natural law theories
and other versions of non-positivism would be in concordance, indicating thereby
that it cannot be the defining feature of positivism. Kelsens insistence on the non-
factual nature of law might thus, even for positivism, still be the preferable option,
let alone for the natural law tradition and other version of non-positivism.

References

Alexy, Robert. 2008. On the Concept and the Nature of Law. Ratio Juris 21: 281299.
Aquinas, T. 1273. Summa Theologica, first edition 12651273, edited by Joseph Bernhart 1985,
Stuttgart: Alfred Krner Verlag.
42 L. Khler

Austin, John. 1861. The Province of Jurisprudence Determined. Vol. 2nd. London: John Murray.
Cohen, G.A. 2003. Facts and Principles. Philosophy & Public Affairs 31 (3): 211245.
Coleman, Jules. 1998. Second Thoughts and Other First Impressions. In Analyzing Law: New
Essays in Legal Theory, edited by Brian Bix, 257322. Oxford: Clarendon.
. 2003. The Practice of Principle. Oxford: Oxford University Press.
Duxbury, Neil. 2008. The Nature and Authority of Precedent. Cambridge: Cambridge University
Press.
Dworkin, Ronald. 1986. Laws Empire. London: Fontana Press.
Eisenberg, Melvin A. 1988. The Nature of the Common Law. Cambridge, MA: Harvard University
Press.
Gardner, John. 2012. Law as a Leap of Faith. Oxford: Oxford University Press.
Green, Leslie. 2003. Legal Positivism. In The Stanford Encyclopedia of Philosophy. http://plato.
stanford.edu/entries/legal-positivism/#Bib. Accessed 12 Sept 2014.
Greenberg, Mark. 2004. How Facts Make Law. Legal Theory 10 (3): 157198.
. 2006. Hartian Positivism and Normative Facts: How Facts Make Law II. In Exploring
Laws Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovits, 265290.
Oxford: Oxford University Press.
Grotius, Hugo. 1625. De jure belli ac pacis, edited by Walter Schtzel, 1950. Tbingen: Mohr
Siebeck.
Guastini, Riccardo. 1998. Normativism or the Normative Theory of Legal Science: Some
Epistemological Problems. In Normativity and Norms: Critical Perspectives on Kelsenian
Themes, edited by Stanley Paulson and Bonnie Litschewski Paulson, 317330. Oxford:
Clarendon Press.
Hart, H.L.A. 1961. The Concept of Law. Oxford: Oxford University Press.
Himma, Kenneth Einar. 2002. Inclusive Legal Positivism. In The Oxford Handbook of Jurisprudence
& Philosophy of Law, edited by Jules Coleman and Scott Shapiro, 125165. Oxford: Oxford
University Press.
Kelsen, Hans. 1960. Reine Rechtslehre. 2nd ed. Vienna: Verlag sterreich.
. 1979. Allgemeine Theorie der Normen. Vienna: Manz.
Levenbook, Barbara Baum. 2013. How to Hold The Social Fact Thesis: A Reply to Greenberg and
Toh. Oxford Studies of Philosophy of Law 2: 75103.
Lundstedt, Anders Vilhelm. 1932. Die Unwissenschaftlichkeit der Rechtswissenschaft. Vol. 1.
Berlin: Rothschild.
Paulson, Stanley. 2000. On the Puzzle Surrounding Hans Kelsens Basic Norm. Ratio Juris 13 (3):
279293.
Peczenik, Aleksander. 1982. Two Sides of the Grundnorm. In Die Reine Rechtslehre in wissen-
schaftlicher Diskussion, edited by Hans Kelsen-Institut, 5862. Vienna: Manz.
Radbruch, Gustav. 1932. Rechtsphilosophie, edited by Dreier, Ralf, and Stanley Paulson, 2nd ed,
2003. Heidelberg: C.F. Mller.
Raz, Joseph. 1980. The Concept of a Legal System. 2nd ed. Oxford: Clarendon Press.
. 2009. The Authority of Law. 2nd ed. Oxford: Oxford University Press.
Spaak, Torben. 2005. Kelsen and Hart on the Normativity of Law. Scandinavian Studies in Law 48:
397414.
Toh, Kevin. 2008. An Argument Against the Social Fact Thesis (And Some Additional Preliminary
Steps Towards a New Conception of Legal Positivism). Law and Philosophy 27 (5): 445504.
Wittgenstein, Ludwig. 1952. Philosophische Untersuchungen, edited by Joachim Schulte, 1984.
Frankfurt am Main: Suhrkamp.
Chapter 3
Natural Law andtheNature ofLaw: Kelsens
Paradox

Pierre-YvesQuiviger

Abstract Is it possible to articulate a genuine pure theory of law without it ceasing


to be a positivist theory of law? The project of a pure theory of law can be held to
presuppose a nature of law whose criteria lead to transcendence with respect to
positive law, even though it is not its purpose. The difficulty facing the pure theory
of law is: to be absolutely dependent on its object, in a manner analogous to the
physico-chemical sciences, and, as a result, to be a necessarily impure theory. For,
how is the pure theory of law then to conceive and respond to that which is not, or
no longer, legal in the system of positive law? If the methodological purity of the
theory is to be retained, and, thus, that there is a criterion, furnished by the pure
theory of law, to distinguish real legal norms from false ones, is the capacity to
utilize the criterion not immediately dissolved by the underlying empiricism of its
dependence upon its object?

3.1 Introduction

My purpose is not to discuss Kelsens rejection of natural law, either through con-
sideration of the relevance of his arguments or through opposing another jusnatu-
ralism to the Kelsenian presentation (or construction) of a science of law as a pure
theory of positive law. Further, there is no attempt to show, which would produce a
different effect of surprise, that Kelsen would, paradoxically, have been a natural
law theorist.1 My purpose is, rather, to address an epistemological question: is it
possible to articulate a genuinely pure theory of law without it ceasing to be a posi-
tivist theory of law? The project of a pure theory of law can be held to presuppose a
nature of law the criteria of which lead to transcendence with respect to positive
law, even though it is not its purpose. It is unrealistic to try to reduce the range of
possible philosophical positions to a gigantomachy between a combination of

In a beautiful article, Paul Amselek (Amselek 1981) had ventured this bold conclusion.
1

P.-Y. Quiviger (*)


Department of Philosophy, University of Nice Sophia-Antipolis University of Cte dAzur,
Nice, France
e-mail: pierre-yves.quiviger@orange.fr

Springer International Publishing AG 2017 43


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_3
44 P.-Y. Quiviger

radical empiricism and sceptical positivism and a natural law founding its origins
outside the law in the fields of morality, politics or religion: there are intermediate
positions, such as one that recognizes a distinctive criteria of legal validity and non-
juridical status among the rules of positive law without admitting the necessity of
resorting to moral, political or religious concepts as the basis for the articulation of
these criteria. Then, if one rejects certain standards as non-legal, one cannot not
be positivist, because this confirms the idea that there are elements of positive law
that are not law- even though, according to the experimental model of the physico-
chemical sciences that inspires legal positivism, scientific laws have to adapt to
events, and not the reverse.2 In short, the pure theory of law is either descriptive or
normative I argue that it is normative. Its normativity facilitates description, obvi-
ously, but it cannot be refuted by the existence of facts (namely, legal events, in the
broadest sense of the term) that contradict this normativity.

3.2 Kelsen, Normativity andLaw

To say this is not to render Kelsen a jusnaturalist in the classical sense of the term
because it would be hard to establish that the pure theory of law is based on the
substantive law of human nature, cosmology, Revelation, or on certain moral, bio-
logical or physiological norms, or on a certain political situation. Kelsen follows a
type of definitional approach. This approach can be characterized as minimalist
natural law or natural law and nature of law: the position in which a philosophy
of law simply states that it is possible to determine an objective definition of the law,
adding a number of semantic invariants constituting a block of juridicity.
Such an approach, in its simplicity, establishes a distinct position a critical legal
positivism which distinguishes itself from a legal positivism which merely records
and classifies positive law. A Kelsenian legal science of positive law introduces a
supplementary normativity to that of the existing norms of positive law; and it is
constructed and functions precisely to render coherent to normalize this initial
normativity. The Pure Theory of Law cannot be defined as a theory of positive law
which is determined by the recording and passive compilation of legal standards
and practices. The Pure Theory of Law, through the critical effect of its methodol-
ogy, creates a position from which to reflect upon on legal standards, and it is a
position which is both normative and meta-normative (not meta-legal). Far from
contradicting a theory of law orientated by an adherence to a minimal natural law,

2
I am concentrating solely upon Kelsenian legal positivism and my position presumes that it is
underlain by hypothetical laws constantly subject to empirical verification following (Jabloner
and Stadler 2001) and, in particular, the chapters by (Dreier 2001; Morscher 2001 and Thaler
2001). This interpretation presents an understanding of Kelsens legal science its scientificity
which is at variance with Kelsens own self-interpretation of his project see the Letter to Renato
Treves of 1933 (Kelsen 1967) and the academic commentary which has sought to argue that, the
Neo-Kantian philosophy of Hermann Cohen is the foundation for its scientificity. See, in particu-
lar, (Edel 1997; Holzhey 1986; Holzhey 1984).
3 Natural Law andtheNature ofLaw: Kelsens Paradox 45

one could argue that the Kelsenian position is, rather, a variant, which is differenti-
ated by its distinctive formal, transcendental approach. This understanding arises
from a reconsideration of Kelsens earlier work of 1928, Natural Law and the
Doctrine of Legal Postivism (Kelsen 1949a), which represents an exemplary pre-
sentation of Kelsens position in relation to the natural law tradition.
It would appear, however, that Kelsen has already, in this essay, explicitly refuted
in advance the interpretation that is sought to be developed:
The basic norm has here been described as the essential presupposition of any positivistic
legal cognition. If one wishes to regard it as an element of a natural-law doctrine despite its
renunciation of any element of material justice, very little objection can be raised; just as
little, in fact, as against calling the categories of Kants transcendental philosophy meta-
physics because they are not data of experience, but conditions of experience. What is
involved is simply the minimum, there of metaphysics, here of natural law, without which
neither a cognition of nature nor of law is possible; and, consequently, how is a juridical
science possible? Accordingly, the theory of the basic norm may be considered a natural-
law doctrine in keeping with Kants transcendental logic. There still remains the enormous
difference which separates, and must forever separate, the transcendental conditions of all
empirical knowledge and consequently the laws prevailing in nature on the one side from
the transcendent metaphysics beyond all experience on the other. (Kelsen 1949a,
437438)

If, rather than simply assuming the pertinence and strength of Kelsens refuta-
tion, one places this Kelsenian analysis into question, it becomes evident that it
immediately presents two central difficulties.
The argument is based on a parallelism which is wrong. Kants transcendental
philosophy, in particular, the Critique of Pure Reason, cannot be directly transposed
and applied to the methodological delineation of a field of legal theory, as that of a
legal science of positive law, without significant transformation. Indeed, the exclu-
sive reliance upon the Critique of Pure Reason, already performs a truncation of
Kants philosophical project, through its exclusion of the further development of its
unity in the subsequent Critiques. This truncation is itself the result of Kelsens
particular appropriation of the Neo-Kantianism of Hermann Cohen, which proceeds
on the basis of the veracity of Cohens reconstruction of Kants Critique of Pure
Reason while, simultaneously, rejecting those later parts of Cohens philosophical
system which are devoted to a critical engagement with Kants subsequent work on
law and ethics.3 Kelsen is conscious of this underlying difficulty and acknowledges,
in the 1928 essay, that this critical approach to Kant involves a further move beyond
the strict parameters of Kants philosophical system. For Kelsen, this critical appro-
priation of Kant commences from the limitation of Kants critique of metaphysics:
the failure to embrace a frank and uncompromising confession of relativism, which

3
This is clearly expressed in Kelsens later Letter to Renato Treves of 1933 (Kelsen 1967). Here,
one should also indicate that the Neo-Kantianism of Cohens project which Kelsen retains is one
which has reconstructed the coherence of Kants philosophy by actively detaching it from its sur-
rounding philosophical context. This becomes evident if one compares Cohens commentaries on
Kants Critique of Pure Reason (Cohen 1871/1885; Cohen 1907) with the later historical recon-
struction of the unity of Kants project undertaken in the later twentieth century in the work of
Giorgio Tonelli (see, for example, Tonelli 1974; Tonelli 1975 and Tonelli 1994).
46 P.-Y. Quiviger

is the inescapable consequence of any real elimination of metaphysics (Kelsen


1949a, 444). The initial indications of this underlying reticence are present, for
Kelsen, in the notion of the thing-in-itself in the Critique of Pure Reason. In this
Kelsen, who here follows, but provides no explicit reference to, Hermann Cohen,
identifies the continued presence of metaphysical transcendence (Ibid.). This lim-
itation is, however, comparatively weak in the Critique of Pure Reason in relation to
the practical philosophy (Ibid.). Here, the critical potential of the transcendental
logic, elaborated in the Critique of Pure Reason, is displaced by the re-importation
of the metaphysical dualism which is an integral part of Christian doctrine
(Ibid.). Thus, Kant, whose philosophy of transcendental logic was pre-eminently
destined to provide the groundwork for a positivist legal and political doctrine,
remained, as a legal philosopher, within the confines of the natural-law doctrine.
Indeed, for Kelsen, Kants Metaphysics of Morals can be regarded as the most
perfect expression of the classical doctrine of natural law as it evolved in the seven-
teenth and eighteenth centuries on the basis of Protestant Christianity (Ibid., 445).
The passage beyond Kant is, therefore, for Kelsen, the revival of this connection
between the transcendental logic of the Critique of Pure Reason and the method-
ological foundation for a theory of legal positivism. However, Kelsens position,
initiated in the 1928 essay, confronts a central difficulty which finds its explicit and
repeated expression in the acknowledgment that physical nature cannot be dis-
obeyed, while positive law can disobey the pure theory of law and, in fact, regu-
larly disobeys it (disobedience is also largely the impetus for various forms of
recourse to legal realism: most empiricist Kelsenian positivists found a certain
failure in Kelsenian normativism, where the value of law is judged regarding its
degree of conformity to legal reality). Between the world of Mssen and the world
of Sollen, there can be no possible confusion, and if the physical laws are part of the
Kantian transcendental framework, and their fundamental necessity is not to be
attenuated or challenged (I leave aside here the question of the compatibility
between modern physics the two principle theories of relativity and quantum
mechanics and the aesthetics of Kant), then it is not possible to confer upon posi-
tive law the status of an a priori condition of possibility for the Pure Theory of Law
as a science (transcendental logic) of positive law.4 One can give several examples:
conflicting norms located at the same level within the normative hierarchy or, more
trivially, an error in an official text, which can turn a negative into a positive provi-
sion or can affect its validity because of its dependence upon its receipt of a signa-
ture by a particular proper name (a decree of the French Republic signed, for
example, Franois Hollinde (sic) grossly violates the minimum requirements of the
pure theory of law Mr. Hollinde, if he exists, is not authorized to sign a decree,
unlike Franois Hollande, but we can conceive of situations in which the error is not
noticed by anyone). Hans Kelsen responds to this difficulty, in the later General
Theory of Law and State, by arguing that, in the field of physical laws, the possibil-
ity of contradictions with the laws of nature also arise:

See, from a different perspective, (Leiter 2007).


4
3 Natural Law andtheNature ofLaw: Kelsens Paradox 47

The law of nature, however, is not inviolable. True exceptions to a law of nature are not
excluded. The connection between cause and effect established in a law of nature describ-
ing physical reality has the character of probability only, not of absolute necessity, as
assumed by the older philosophy of nature. If, as a result of empirical research, two phe-
nomena are considered to be in a relation of cause and effect, and if the result is formulated
in a law of nature, it is not absolutely excluded that a fact may occur which is in contradic-
tion to this law, and which therefore represents a real exception to the law. Should such a
fact be established, then the formulation of the law has to be altered in a way to make the
new fact correspond to the new formula (Kelsen 1949b, 467).

In this response, Kelsen overlooks that it is precisely because the physical law
must be modified when an observation contradicts this law that a pure theory of law,
as a science of positive law, is not composed of a set of laws which have an analo-
gous character to those of nature. The evident difficulty of this position is rendered
more problematic by Kelsen in the argument which immediately precedes this quo-
tation. For Kelsen, utilizing the example of the norm, If someone steals, he ought
to be punished (Ibid., 46), states that, in an instance where the punishment does not
occur, the norm remains uncontradicted. This position, however, extends a fortiori
to the meta-standards of which the pure theory of law is itself composed.
The other central problem with Kelsens anticipatory refutation is that it reduces
the question of the possibility of natural law within a pure theory of law, as a science
of positive law, to the methodological question of the basic norm (Grundnorm).
This reduction is internally consistent, from the position of Kelsenian methodology,
because the transcendental status which is accorded to the basic norm is that of a
transcendental postulation a necessary presupposition for the logical consistency
of its approach. Here, one could argue, as a question of methodology it indicates,
ceteris paribus, an application of Gdels theorem, in the field of mathematics, to
the juridical field positive legal norms: the natural law is the transparent operation
of a method which introduces elements which transcend the law contained in the
norms of positive law.5 Through this methodological reduction of natural law, it
excludes, from this level of the legal science of positive law, the possibility of a
notion of validity which is extra-legal in character and, thus, never considers the
idea that natural law may be law.
It is also evident that this process of methodological exclusion or purification
involves the form of detailed critique exemplified in the 1928 essay. For, this idea of
natural law is an integral aspect of the history of natural law and, in particular, of
modern natural law: the interpenetration of the moral, religious and political fields
with that of the domain of the juridical. The Kelsenian critique itself involves the
presentation of a history of the evolution of modern natural law and its integration
of religious and moral norms within the positive law but he refrains from further

5
It is also pertinent to note, beyond this potential affinity with Gdel, the influence of the Neo-
Kantian philosophers, Vaihinger and Cassirer, whose respective theory of fictions, in particular
juridical fictions, and critique of the notion of substance are explicitly acknowledged by Kelsen
(see Kelsen, 1919 and Kelsen, 1967). On Cassirers critique of substance, (see Rudolf 1994); and,
for Cassirers attempt to combine the developments in modern logic with the Neo-Kantianism of
Marburg, (see Heis 2010, and Richardson 2006).
48 P.-Y. Quiviger

analysis, following the methodological demonstration of the primacy of a pure the-


ory of law, as a science of positive law. Yet, this purported purification still leaves a
significant remainder of non-legal elements within the framework of positive law.
As Kelsen observes:
Metaphysics, when it wants to leave the realm of subjective imagination, invariably enters
the dogmatism of revealed religion; natural-law speculation, when it looks for certainty
somewhere, flows into positive legal norms, constituted under the authority of a church, that
is, of a power organization, which claims to represent an order with a validity superior to
that of a States law whose sphere it limits or whose content is determines in a certain way.
Ordinarily these ecclesiastic norms present themselves as natural law, even if only to dem-
onstrate their superiority to the States positive law. In reality, they are only positive law, as
the church is only a particular kind of State. The parallel of revealed religion and positive
law is evident. The desire for objectivity enforces positivity. (Kelsen 1949a, 438, footnote)

Kelsen is perfectly clear on the meaning and the error of modern natural law
and its insistence upon entering the domain of positive law. However, the severity of
this critical clarity prevents the recognition or acknowledgment of the existence of
another natural law position, one which is much closer to his position, if one accepts
primacy of theory in relation to empiricism in the pure theory of law. This primacy
creates the position from which it is possible to hold that it is not sufficient to label
or stamp positive law on a statement to transform it into a legal norm. The state-
ment has itself to satisfy an additional, theoretical requirement, in which the state-
ment must adhere to criteria of juridical validity defined by the pure theory of law,
or any other general theory of law (including some substantial jusnaturalisms)
which defines a nature of law.

3.3 Legal Science andLegal Norms

The introduction of the Kelsenian distinction between statement and norm, rule of
law and legal norm, enables consideration and discussion of that part of the pure
theory of law that appears to offer the most direct refutation of my analysis, namely,
Kelsens distinction between legal norms (Rechtsnormen) and rules of law
(Rechtsstze):
The legal norms enacted by the law creating authorities are prescriptive; the rules of law
formulated by the science of law are descriptive. (Kelsen 1949b, 45)

The science of law describes the legal norms created by acts of human behaviour and to be
applied and obeyed by such acts; and thereby describes the norm-constituted relations
between the facts determined by the norms. The sentences by which the science of law
describes these norms and relationships must be distinguished as rules of law from the
legal norms that are created by the legal authorities, applied by them, and obeyed by the
legal subjects. Rules of law (in a descriptive sense), on the other hand, are hypothetical
judgments stating that according to a national or international legal order, under the condi-
tions determined by this order, certain consequences determined by the order ought to take
place. Legal norms are not judgments, that is, they are not statements about an object of
cognition. According to their meaning they are commands; they may be also permissions or
3 Natural Law andtheNature ofLaw: Kelsens Paradox 49

authorizations; but they are not instructions as is often maintained when law and jurispru-
dence are erroneously equated. The law commands, permits, or authorizes, but it does not
teach. (Kelsen 1967, 71)

There is an ontological division, in positive law, between legal statements and


legal norms, and ignorance of this separation creates a misunderstanding of the real-
ity of the law: the interpretive space cannot be transmuted into normative space. The
methodological recognition of, and emphasis upon, this division, in Kelsenian legal
science, is to be acknowledged as correct. From this position, Kelsenian legal sci-
ence reveals a potential, but unacknowledged filiation with the famous phrase of
Hobbes Auctoritas non veritas facit legem in the Latin version of Leviathan,
chapter 26 (Hobbes 1651 (Latin edition, 1670), despite the explicit critical engage-
ment with the work of Hobbes, including both Leviathan, and the citation of this
passage in (Kelsen 1948, 482).6 For Hobbes, the authority of law its obligatory
character is dependent upon three essential elements: its origin in the sovereign,
its publication and its authentic, as distinct from its inauthentic, interpretation (see
Klimchuck 2012). The vestiges of Hobbes remain in Kelsenian legal science in the
maintenance of a distinction between types of interpretation. For Kelsen, the dis-
tinction is between the interpretation that has a normative value and one thathas an
indicative value. Here, the types of interpretation relate to distinct domains which
reflect, within the science of positive law, the domains of legal norms (the object of
legal science) and the domain of legal science (the transcendental logic of the legal
order). The legal norm, for Kelsen, is unrelated to any type of interpretation predi-
cated upon the distinction between true and false a norm is neither true nor
false but, rather, valid or invalid. It is only in the domain of legal science, which
formulates statements about the legal order, that interpretation distinguished by
truth and falsity exists. This interpretation is, however, descriptive and has no capac-
ity to extend to interpretations of validity or invalidity. Truth and falsity are, there-
fore, confined to the domain of legal science. Thus:
The statements formulated by the science of law that, according to a certain legal order,
something ought to be done or not to be done, do not impose obligations nor confer rights
upon anybody; they may be true or false. But the norms enacted by the legal authority,
imposing obligations and conferring rights upon the legal subjects are neither true nor false,
but only valid or invalid; just as facts are neither true nor false, but only existent or non-
existent, and only statements about facts can be true or false. (Kelsen 1967, 73)

The distinction in the General Theory of Law and State between a legal norm and
a rule of law in a descriptive sense, provides a heuristic clarity which is far from
condemning the pure theory of law to operate as a merely passive recording of the
particular empirical condition of positive law. The analogy between facts and
norms and between validity and existence is problematic, but it is the path to
the active dimension of the pure theory of law. Indeed, this passage from the
General Theory of Law and State, is exemplary because of its emphasis upon two
elements. First, the pure theory of law should address the formal validity of legal

On the wider question of Hobbes and Kelsen, (see Gentile 1982).


6
50 P.-Y. Quiviger

standards and, therefore, that there are non-valid norms, according to certain criteria
which are constructed by the pure theory of law. Then, however, it would be possi-
ble to abandon a theoretical legal positivism altogether and, in conformity with a
purely empirical approach, focus exclusively upon the existence of norms, on the
basis of a general presupposition of their validity. The first element, however,
requires the introduction and maintenance of a separation from radical empiricism.
The second element is, in particular, the one thatenables the introduction of a
pure legal theory of natural law minimalism. For, when Kelsen discusses legal
norms, which are required to impose obligations and to confer rights upon legal
subjects, he propounds not merely a formal criterion, but a substantive criterion, in
order to distinguish not merely between notions of existing or non-existing stan-
dards and valid or invalid, but, more particularly, between legal norms and non-legal
norms, even though they are present in positive law.7 Legal standards may be valid
in the sense of their consistency, respect for the procedure and the hierarchy of
norms, but are unable to grant rights and impose obligations, for example, because
of their uncertainty, their vagueness. Moral or metaphysical or political statements
can be found in a corpus of positive norms, but are unquantifiable, and, thus, not
susceptible to be made immediately concrete and effective as positive legal norms
at the most abstract level in the normative hierarchy. They are then flatus vocis or
legal uncertainty of too wide a scope and whose interpretation their potential
transformation into concrete legal norms entails a further process of legal interpre-
tation (legal decision-making) or a broader, more diffuse process of interpretation
by the citizens of a particular legal order.
Here, Kelsen prefigures a path which breaks with an understanding of the rela-
tionship between law and cognition as one of simple translation from the political
(cognition) to the juridical (law).8 Rather, Kelsenian legal science interrupts the
simple model of translation and the Pure Theory of Law thereby refers to a minimal,
but essential process generating normative content (the ability to create rights and
obligations), beyond a single position in the normative hierarchy, which is inside the
field of minimal natural law.
However, this prefiguration appears to be explicitly contradicted by Kelsens
General Theory of Law and the State, and one need proceed no further than its
Preface to grasp the essential orientation of Kelsens position:
What cannot be found in the contents of positive legal norms cannot enter a legal concept.
(Kelsen 1949b, xiii)

Every assertion advanced by a science of law must be based on a positive legal order or on
a comparison of the contents of several legal orders. It is by confining jurisprudence to a
structural analysis of positive law that legal science is separated from philosophy of justice
and sociology of law and that the purity of its method is attained. (Kelsen 1949b, xv)

7
See, from a different perspective, Paulson (2012) and Paulson (1998).
8
See Quiviger 2009 for the more detailed critique of the model of translation and the presentation
of a more complex analytical perspective which accords a distinct position to three stages of con-
ception, adoption and effectiveness of law.
3 Natural Law andtheNature ofLaw: Kelsens Paradox 51

The interpretation I advance, based upon these prefigurative indications in


Kelsens work, appears also to omit the first lines of the Pure Theory of Law of
1960, and the definition of purity found there, and this emphasizes its seemingly
unorthodox character:
The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general,
not of a specific legal order. It is a general theory of law, not an interpretation of specific or
international legal norms; but it offers a theory of interpretation. As a theory, its exclusive
purpose is to know and to describe its object. The theory attempts to answer the question
what and how the law is, not how it ought to be. (Kelsen 1967, 9)

However, the initial, distinctly unorthodox character of this interpretation


becomes less apparent when one proceeds only a few lines further in the same part
of the text:
It is called a pure theory of law, because it only describes the law and attempts to elimi-
nate from the object of this description everything that is not strictly law: Its aim is to free
the science of law from alien elements. This is the methodological basis of the theory.
(Ibid.)

The impression of the unorthodox is, thus, replaced with the description of a
project which has close affinity with that which was earlier defined as minimalist
natural law. For, this becomes evident if one considers that Kelsens designation of
the orientation of the Pure Theory of Law is not only to rid the science of law of
that which is not law, but also to rid positive law of that which is not law. This for-
mulation would probably not have been acceptable to Kelsen, as it would have been
considered to violate the essentially methodological neutrality of a scientific theory
of law, which must accept any existing legal norm as part of the system of positive
law. However, beyond the probable response from within the methodological frame-
work of Kelsenian legal science, this formulation retains its necessary veracity if
one considers that a pure theory of law cannot be a radically empiricist theory (all
that appears as positive law is positive law, there is no existing idea of positive
law) which has, as its necessary corollary, a radical scepticism. The position of radi-
cal scepticism, with which this empiricism is entwined, enters immediately into
contradiction with the systematic, hierarchical structure of positive law and the tran-
scendental logic which is its necessary presupposition.
The difficulty facing the pure theory of law is: to be absolutely dependent on its
object, in a manner analogous to the physico-chemical sciences9 and, as a result, to
be a necessarily impure theory. For, how is the pure theory of law then to conceive

9
See Jabloner and Stadler 2001. In particular, the essays by Dreier (2001), Morscher (2001) and
Thaler (2001). In addition, there is the question of the pertinence of the approach of Hermann
Cohen, prefigured in Das Prinzip der Infinitesimal-Methode and seine Geschichte: Ein Kapitel zur
Grundlegung der Erkenntniskritik 1883, and further developed in the first part of his philosophical
system, Logik der reinen Erkenntnis, 1902, in which the relation to the physico-chemical sciences
is that which accepts the fact of the physio-chemical sciences and seeks to lay the ground for their
comprehension in an approach which attempts to prevent its collapse into mere empiricism and
remains distinct from the later, more sophisticated approach of the Vienna Circle. The pertinence
of this approach to an understanding of the transcendental logic of Kelsens Pure Theory is devel-
oped by Edel (1997, 1998).
52 P.-Y. Quiviger

and respond to that which is not or no longer legal in the system of positive law? If
the methodological purity of the theory is to be retained and, thus, there is a crite-
rion, furnished by the pure theory of law, to distinguish real legal norms from false
ones, is the capacity to utilize the criterion not immediately dissolved by the under-
lying empiricism of its dependence upon its object?
It may appear strange to seek to distinguish a hard Kelsenian legal positivism
from a position mine which indicates a position which is closer to that of natural
law. This oblique approach is, however, comparable to that of Kelsen who, in the
Pure Theory of Law of 1960, attempts to define a theory of consistent natural law:
A consistent theory of natural law differs from a positivistic theory of law in that the
natural-law theory seeks the reason for the validity of positive law in a natural law, different
from positive law, and hence in a normative order with which the positive law, according to
its contents, may or may not conform; so that the positive law, if not in conformity with
natural law, must be regarded as invalid. Therefore, according to a true theory of natural
law, not any by and large effective coercive order may be interpreted as objectively valid
normative order. The possibility of a conflict between natural law and positive law includes
the possibility of regarding such a coercive order as invalid. (Kelsen 1967, 218219)

It is possible to apply this distinction to the pure theory of law itself: it can only
be a theory of law if it recognizes that, in the case of conflict between the pure the-
ory of law and positive law, the norm of positive law is not legal. From which flows,
as its necessary corollary, that it is possible that norms exist in positive law which
are not legal norms.

3.4 Conclusion

My conclusion is this: the real division is not between positivism and natural law but
between intrusive and non-intrusive (the formula has no political connotation),
namely, between an active and a passive theory of law. The dividing line is not
between a vision of law as a starting point and a different view of as law as the point
of arrival of philosophical analysis, but between a theory of law which may change
the law, and a conception of a theory of law which has to comply with the law how-
ever much the existing system of positive law contradicts the nature of law. In rela-
tion to this real division, Kelsen is considered to reside on the side of an active
philosophy of law, even though it sometimes appears that the Pure Theory professes
a passive position.

References

Amselek, P. 1981. Lhritage jusnaturaliste du positivisme juridique. Filosofia del Derecho y


Problemas de Filosofia Social X: 5567.
Cohen, H. 1871/1885. Kants Theorie der Erfahrung. Berlin: Dmmler.
. 1907. Kommentar zu Immanuel Kants Kritik der reinen Vernunft. Leipzig: Meiner.
3 Natural Law andtheNature ofLaw: Kelsens Paradox 53

Dreier, H. 2001. Rechtsdeutung zwischen Normativierung der Natur und Naturalisierung des
Normativen am Beispiel von Kelsens Rechtsbegriff. In Logischer Empirismus und Reine
Rechtslehre. Beziehungen zwischen dem Wiener Kreis und der Hans Kelsen-Schule, edited by
C. Jabloner and F. Stadler, 291305. Vienna: Springer.
Edel, G. 1997. Zum Problem der Recthsgeltung. Kelsens Lehre von der Grundnorm und das
Hypothesis-Theorem Cohens. In Grenzen der Kritischen Vernuft. Helmut Holzhey zum 60.
Geburtstag, edited by P.A. Schmid and S. Zurbuchen, 178194. Basel: Schwabe.
. 1998. The Hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen. In
Normativity and Norms: Critical Perspectives on Kelsenian Themes, edited by S.L. Paulson
and B.L. Paulson, 195219. Oxford: Oxford University Press.
Gentile, F. 1982. Hobbes et Kelsen: Elments pour une lecture croise. Revue europenne des sci-
ences sociales 61: 378391.
Heis, J. 2010. Critical philosophy begins at the very point where logistic leaves off: Cassirers
Response to Frege and Russell. Perspectives on Science 18 (4): 383408.
Hobbes, T. 1651. Leviathan (Latin edition, Amstelodami: Joannen Blaeu, 1670).
Holzhey, H. 1984. Die Transformation neukantianischer Theoreme in die Reine Rechtslehre
Kelsens. In Hermeneutik und Strukturtheorie des Rechts, edited by M.W. Fischer, E. Mock, and
H. Schreiner, 99110. Wiesbaden: Steiner.
. 1986. Kelsens Rechts- und Staatslehre in ihrem Verhltnis zum Neukantianismus. In
Untersuchungen zur Reinen Rechtslehre. Ergebnisse eines Wiener Rechtstheoretischen
Seminars 1985/86, edited by S.L. Paulson and R. Walter, 167192. Vienna: Manz.
Jabloner, C., and F. Stadler, eds. 2001. Logischer Empirismus und Reine Rechtslehre. Beziehungen
zwischen dem Wiener Kreis und der Hans Kelsen-Schule. Vienna: Springer.
Kelsen, Hans. 1919. Zur Theorie der juristischen Fiktionen. Mit besonderer Bercksichtigung von
Vaihingers Philosophie des Als Ob. Annalen der Philosophie und philosophischen Kritik 1 (1):
630658.
Kelsen, H. 1948. The Doctrine of Natural Law Before the Tribunal of Science. The Western
Political Quarterly 2 (4): 481513.
Kelsen, Hans. 1949a. Natural Law Doctrine and Legal Positivism. Trans. W.H. Kraus. In General
Theory of Law and State, edited by H. Kelsen, 392446. Cambridge, MA.: Harvard University
Press. (German original 1928).
. 1949b. General Theory of Law and State. Trans. A. Wedberg, Cambridge Mass.: Harvard
University Press.
Kelsen, H. 1967. The Pure Theory of Law, translation from the second German edition by Max
Knight. Berkeley and Los Angeles: University of California Press.
Klimchuck, D. 2012. Hobbes on Equity. In Hobbes and the Law, edited by D. Dyzenhaus and T.
Poole, 165185. Cambridge: Cambridge University Press.
Leiter, Brian. 2007. Naturalizing Jurisprudence: Essays on American Realism and Naturalism in
Legal Philosophy. Oxford: Oxford University Press.
Morscher, E. 2001. Die Sein-Sollen-Dichotomie im Logischen Positivismus und im
Rechtspositivismus. In Logischer Empirismus und Reine Rechtslehre. Beziehungen zwischen
dem Wiener Kreis und der Hans Kelsen-Schule, edited by C. Jabloner and F. Stadler, 45116.
Vienna: Springer.
Paulson, Stanley L. 1998. Two Problems in Hans Kelsens Legal Philosophy. In Pragmatism,
Reason & Norms: A Realistic Assessment, edited by K.R. Westphal, 219242. New York:
Fordham University Press.
. 2012. A Justified Normativity Thesis in Hans Kelsens Pure Theory of Law? Rejoinders
to Robert Alexy and Joseph Raz. In Institutionalized Reason. The Jurisprudence of Robert
Alexy, edited by M. Klatt, 61111. Oxford: Oxford University Press.
Quiviger, P.-Y. 2009. De la conception leffectivit de la loi. In Penser et agir. Contextes philos-
ophiques, praxologique et langagier, edited by V. Alexandre, vol. 1, 197220. Paris: Editions
Le Manuscrit.
54 P.-Y. Quiviger

Richardson, A. 2006. The Fact of Science and Critique of Knowledge: Exact Science as Problem
and Resource in Marburg Neo-Kantianism. In The Kantian Legacy in Nineteenth-century
Science, edited by M. Friedman and A. Nordmann, 211226. Cambridge, M.A.: MIT Press.
Rudolf, E. 1994. Substance as Function: Ernst Cassirers Interpretation of Leibniz as Criticism of
Kant. In Philosophy, Mathematics and Modern Physics, edited by E. Rudolf and I.-O.
Stamatescu, 235242. Berlin: Springer.
Thaler, M. 2001. Das Rechtsdenken im Spannungsfeld von Absolutismus, Relativismus und
Skeptizismus. In Logischer Empirismus und Reine Rechtslehre. Beziehungen zwischen dem
Wiener Kreis und der Hans Kelsen-Schule, edited by C. Jabloner and F. Stadler, 307318.
Vienna: Springer.
Tonelli, Giorgio. 1974. Kants Ethics as Part of Metaphysics: A Possible Newtonian Suggestion?
With Some Comments on Kants Dream of a Seer. In Philosophy and the Civilizing Arts.
Essays Presented to Herbert W. Schneider, edited by C. Walton and J.P. Anton, 236263.
Athens: Ohio University Press.
. 1975. The Problem of the Classification of the Sciences in Kants Time. Rivista Critica di
Storia della Filosofia 30: 243294.
. 1994. Kants Critique of Pure Reason Within the Tradition of Modern Logic. A Commentary
on Its History, edited by D. H. Chandler. Hildesheim: Georg Olms.
Part II
Beyond Natural Law?
Chapter 4
Natural Law Systematics: Is There
aGrundnorm inNatural Law?

ClaesPeterson

Abstract In his major work Die reine Rechtslehre (1934) Hans Kelsen intended
to establish a legal science (Rechtswissenschaft) devoid of value judgements. The
construction of a basic norm (Grundnorm) formed the basis for a purely scientific
systematization of legal norms. Kelsen constructed the outlines for his legal doc-
trine in clear opposition to natural law theory. The latter was, in Kelsens view, a
metaphysical legal order, that continued to influence legal science, despite the
apparent dominance of legal positivism in contemporary jurisprudence. Hence, it is
unsurprising that Kelsens work strongly emphasized the differences between die
reine Rechtslehre and natural law theory. It does not follow, however, that Kelsens
legal theory differs from natural law theory in every respect. In fact, there are strong
reasons to assume that a comparison of the two theories would in fact reveal some
striking similarities. This would seem to be true, both in relation to the structure and
the function of the two theories. This chapter offers an analysis of the concept of
legal systematics in natural law theory and in Kelsens reine Rechtslehre. The
point of departure is the concept of systematics in natural law theory.

4.1 Introduction1

The juxtaposition of natural law theory and Kelsens Reine Rechtslehre 1934 may
come as a surprise especially in regard to the fact that Kelsen developed his theory
of law in opposition to natural law theory. There are, however, striking similarities
which, of course, does not mean that one can establish any direct historical influ-
ence or dependence. Nevertheless, despite the absence of this form of relationship,
it does not follow that Kelsens legal theory is radically distinct from natural law
theory in every respect. In fact, there are strong reasons to assume that a comparison
of the two theories would, in fact, reveal some unexpected parallels. This would

1
I would like to express my gratitude to Dr. Peter Langford for his kindness and unfailing
support.
C. Peterson (*)
Department of Law, University of Stockholm, Stockholm, Sweden
e-mail: Claes.Peterson@juridicum.su.se

Springer International Publishing AG 2017 57


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_4
58 C. Peterson

seem to be true, in relation both to the structure and the function of the two theories.
The question is whether these similarities or parallels are substantial or if we are
dealing with so-called faux amis, i.e., they initially appear similar but have different
meanings. In order to find an answer to this question it seems appropriate to focus
on that which forms the potential element of similarity or connection of the two
respective theories, namely, the fundamental or basic norm.

 atural Law Theory: ThePrime Mover (


4.2 N
; )

The fundamental principle in natural law metaphysics is the assumption of an a


priori, a prime mover (Aristotle), which, although in itself motionless, is the ulti-
mate cause of all change (Peterson 2008). The immediate purpose of this assump-
tion was to eliminate that which is probably the philosophers nightmare, namely,
regressus in infinitum, the endless regress. It appears that this philosophical problem
can be avoided if a first foundation is laid, which in relation to its validity has no
necessity or requirement to be grounded upon an additional element. This a priori
assumption can be described as a Stunde Null, a starting-point, which is not sub-
ject to change or movement and thereby is able to guarantee an epistemology, which
fulfils the demands for coherence and logical congruence.
There is only one world, since everything that is in motion is dependent on the
Prime Mover.2
The Aristotelian metaphysical reasoning that everything must emanate from a
first foundation or cause not conditioned by anything else is a cornerstone in the
tradition of natural law theory.
Christian Wolff (16791754), whose synthesis of natural law dogmatics formed
the zenith of the theory as well as the beginning of its subsequent decline, starts
from the postulate that God is the first cause, unconditioned by, and, hence, notsub-
ject to, any other cause. God has simultaneously created the world and all the beings
which it contains. It is clear that God has the same position and meaning in Wolffs
philosophical reasoning as the Prime Mover has in Aristotelian metaphysics.3 The
aim of the presumption of a highest metaphysical a priori is to guarantee both onto-
logical and epistemological unity. The theory is thus based on the ontological
assumption that the world is divided into an absolute (essentia) and a contingent
(existentia) being. The postulate of the dualistic ontological structure rests on a
number of fundamental considerations and conclusions. The course of events is, to
begin with, determined by the law of causality. All that is or happens has a cause or,

2
Aristotle, Physics , 1; , 5,6; Metaphysics, , 6.
3
See Wolff 1737, s 53 ( XVII): Deum esse ens, in quo continetur ratio sufficiens existentiae
universi [God is the essence, in which the principle of sufficient reason of the contingencies of
universe is comprehended].
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 59

put differently, nothing happens which does not have a cause. This doctrine was
commonly referred to as the principle of sufficient reason (ratio sufficiens).
Regressus in infinitum is an inevitable problem, if a first point of departure is not
postulated. If there is no cause, then there can consequently be nothing else. What
we experience as the immediate result of a causal relation cannot exist, as an ulti-
mate foundation is missing. Everything will effectively hang in the air and the pos-
sibility for a stable origin of knowledge becomes impossible, because, as Aristotle
emphasizes, an infinite series cannot be traversed(Aristotle, Posterior Analytics
[APo] I, 22). What would remain would be merely disjointed impressions. This
seemingly hopeless problem appears to be solved if a first cause is assumed, that is
not caused, and thus conditioned by, something else. This would also satisfy the
human need for, and interest in, a comprehensible order. Moreover, the principle of
causality appears to be an irrefutable proof that the assumption is correct. The con-
clusion that the movement must have a cause is evidenced not only by logic, but also
borne out or verified by experience. Furthermore, it is clear for the same reasons that
the chain of causal connections must start from an ultimate cause. An inverse rela-
tionship, i.e., the assumption that there are several points of departure, would lead
to the conclusion that there are several parallel truths and universes, which would
not only create epistemological chaos, but would also be contrary to theconven-
tional character of human experience.
The Prime Mover or God should not be seen as a principle of mechanical
action, but as one which has the character of an ideal being, a metaphysical state,
thus forming the basis for the course of events. It also means that, though the a
priori has material content, it is, in Kantian terms, a synthetic a priori, it lacks
spatial and temporal regularity. The absolute and perfect cannot change, because it
is in a state of timelessness. The concept of time is, according to Aristotle and Wolff,
nothing more than a measure of what is changing.4 In this sense, the absolute point
transcends the contingent nature of the temporally and spatially limited world. All
phenomena of the temporal world can be deduced as consequences of this first foun-
dation, thus ensuring unity and coherence in the seemingly chaotic state of things.
The Prime Mover or God can even be described as ens entium, essence of essences,
cause of causes or form of forms, that initiates and shapes the movement. Aristotle
imagines the metaphysical world as a hierarchical order of beings determined by the
causality principle, where the Prime Mover is the Supreme Essence, which itself has
no cause, but that causes everything else. In his work Vernnfftige Gedancken von
den Krften des menschlichen Verstandes (1713), also known as Deutsche Logik,
Wolff formulates the principle of causality, and its first immobile beginning, in the
following manner:
Unter denen Dingen, die mglich sind, muss eines nothwendig selbstndig seyn, denn sonst
wre etwas mglich, davon man keinen Grund anzeigen knnte, warum es ist //. Das

4
Aristotle, De caelo, A, 9; Aristotle, Metaphysics, 1026 b 10; Wolff 1725, 46 (in the following
referred to as Deutsche Metaphysik [German Metaphysics]). See, for further discussion, Peterson
1992.
60 C. Peterson

selbstndige Wesen nennen wir Gott; die anderen Dinge, welche ihren Grund, warum sie
sind, in dem selbstndigen Wesen haben, heissen Creaturen.
[Among the things which are possible, there must be one thing which is necessarily
autonomous, otherwise something would be possible, of which no reason, why it exists,
could be demonstrated //. We call this autonomous essence God; the other things, whose
cause, why they exist, is in the autonomous essence, are called creatures] (Wolff 1713,
Vorbericht, 11)5

The movement, which ultimately emanates from the Prime Mover, entails that
necessity is co-originary with the external world. It ensures their coincidence and
thereby connects the two ontological dimensions, i.e., the metaphysical world with
the world of phenomena. Thus, the necessary forms are not separated from the
world of senses. The sensual objects are, rather, a realization of things in themselves
or essences.
From this philosophical position, the ultimate goal of knowledge and the manner
in which to achieve it are given. The knowledge that a highest a priori exists, what-
ever it may be, the Aristotelian Prime Mover or God, which is proved with the
principle of sufficient reason, also leads to the knowledge of itself, i.e., to the knowl-
edge of the common metaphysical connection which furnishes the explanation of
the world. It is not knowledge of facts which is the central focus of this philosophi-
cal position. The object to which philosophical knowledge is orientated is, instead,
the eternal causal connection. True knowledge is, therefore, not the knowledge of
the accidental, but of the necessary and unchangeable, or, as Aristotle expresses it:
In the same way the geometrician does not study the accidental attributes of his figures, nor
whether a triangle is different from a triangle the sum of whose angles is equal to two right
angles. And this accords with what we should reasonably expect, because accident is
only, as it were, a sort of name. // Indeed, it seems that the accidental is something closely
akin to the non-existent (Aristotle, Metaphysics, 1026 b 10).

The use of the principle of sufficient reason, in combination with the law of non-
contradiction, in order to prove the dualistic structure of the world creates the path
to the epistemological question, namely, to what extent and in what manner the
metaphysical world is attainable by knowledge. The search for scientific knowledge
aims at the transcendental. Accordingly, the interest of knowledge is focused not
upon what appears to be, but upon what is. If the accidental expression, i.e., the
sensuous world, which contains positive law, is ontologically equal with the non-
existing, it follows that he who solely devotes himself to the accidental, is occupied
with the non-existing, i.e., that which, from the perspective of science, is meaning-
less.6 The necessary state of things is given by the metaphysical essence, which then
forms the basis for knowledge. Aristotle calls the essence the underlying thing (
; lat. Subiectum). (Pronay 1980, 98f).

5
All translations from German are those of the author.
6
Aristotle, Metaphysics, 1064 a 25. Cf. Plato, Sophistes, 254 a, who points out that the sophist who
only occupies himself with the accidental wastes his time on the non-existing.
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 61

Science, which has to devote itself to the things what or essence is, therefore,
the same as analysis of the essence or metaphysics.7 Science is not measured by its
methods, but by the thing in itself or essence.8 It is the identity of the thing and not
the method which guarantees scientific knowledge. In this way, the essence of
things always constitutes the basis of absolute and exact knowledge, i.e., science. To
have knowledge of the essence is, thus, the same as having knowledge of the foun-
dation, which is, also, the absolute cause of what is happening in the temporal
world.9 Scientific proof is connected to the essence of things, since it is aimed at the
cause given with the essence, and is not concerned with naked facts. The useful and
practical cannot be the subject of scientific knowledge. Scientific knowledge is the
same as the pure knowledge of the essence of things. With the assistance of a quota-
tion from Cicero, Wolff emphasizes that
non ex duodecim tabularum, nec ex edicto praetorum, sed penitus ex intima philosophia
Juris scientiam hauriendam esse.
[it is not from the Law of the Twelve Tables, neither from the Praetors Edict that legal
science derives, but from profound philosophical analysis] (Wolff 1754, Praefatio)

The principle of science can, according to the classical doctrine of natural law, be
defined as a faculty which draws irrefutable conclusions from the firm foundation of
the essence (Wolff 1713, ch. 7, 1). The syllogism or the deduction is, therefore, the
cornerstone of the methodology of the theory of natural law. An absolute condition
is, however, that the propositions of which the syllogism is comprised, and express
the essence, are secured. If the object is to identify the deduction as the scientific
method per se, it is of central importance for science how the propositions of the
syllogism are secured. From this ontological and epistemological framework,
induction consequently forms a necessary methodological point of departure. The
assumed causality, with the Prime Mover as its ultimate cause, implies the manner
in which knowledge commences from its beginning in the experienced or the sen-
sual. Since nothing can come from nothing, ex nihilo nihil fit, all experienced things
give signs of underlying causes. The logical conclusion is that in what I see there is
something that is contained in a higher meaning. This higher substance, which is
acting in the perceivable object, and furnishes it with form and meaning, is the true
being. It is the goal of the search for scientific knowledge. Empirical knowledge, on
the other hand, cannot be subjected to scientific conclusions, since it is constantly
moving and changing. At first, we obtain knowledge about what is perceivable by
the senses the empirical knowledge or knowledge a posteriori from which we
then, through the process of induction obtain general knowledge, i.e., knowledge a
priori:
It is evident that we must know the very first ( ) with the help of induction
(); (Aristotle, APo 100 b 4)

7
Aristotle, Posterior Analytics, 75 b 5.
8
Aristotle, Metaphysics, 1057 a.
9
Aristotle, Posterior Analytics, 90 a 31.
62 C. Peterson

() as general rules are based on particular cases; hence we must have perception of
particulars (Aristotle, Nicomachean Ethics 1143 b 4).

The induction has the character of an abstraction, which means that all the tem-
poral qualities of the object, the so-called accidentia, i.e., all that which exceeds the
necessary qualities of the essence, the non-essential, are peeled off. The history of
the sensual expression is repeated in the thinking, but in reverse. The purpose is to
establish and reveal that which is concealed in the process of experience. The induc-
tion functions as a confirmation of the expectation that that which occurs again and
again exposes the essence of things. The induction thus presupposes that the subject
knows what it seeks in advance. The result of the induction, a representation of the
essence, forms the point of departure for the syllogism or deduction. Knowledge of
a thing means, according to the methodology of natural law, to possess its concept
(Wolff 1713, 100; 1725, 273).
The ontological assumption that the world has a dualistic structure thus defines
the epistemology. Knowledge is consequently divided in two opposite kinds, namely
cognitio causarum, the knowledge of the metaphysical causes, i.e., science, and the
knowledge of facts, cognitio factorum, i.e., knowledge of the temporal world. The
former is absolute and thus transcends time and space. The latter is historically
variable.10
Even law has an a priori foundation or nature, as natural law, which expresses
itself in positive law. Natural law is in itself unchangeable and necessary, since it
cannot exist in another manner. When natural law is realized in positive law, it is
defined by time and space, which means that a series of accidental variations, acci-
dentia, supervene, according to the factual circumstances, e.g., climate, national
character or geographical position. Natural law is the cause of positive law, and it
fulfils therewith the demands of science. It is absolute in that it exists beyond the
limitations of time and space. Whereas natural law is an invariant metaphysical
standard, identical with itself and, accordingly, unchangeable, positive law has the
opposite character. Positive law, while it, indeed, emanates from natural law, it is
also historically conditioned and defined, which means that it adjusts itself to shift-
ing circumstances in time and space.
The epistemological model presupposes a system, which has the character of a
single, absolute whole defined by causality. This implies that the theory depends in
its entirety on the assumption of a first point, an a priori. Whereas most systems are
characterized by their arbitrariness and hence only serve as an aide-mmoire the
system of natural law has an ontological foundation. It represents a given order of
essences, which is absolute. It is unchangeable, eternal and true in itself.11 The axi-
omatic character of the system is reflected in its logical underpinning: behind all

10
On the dualistic concept of knowledge, see Baumeister 1746, 12; Wolff 1713, c. 1, 3;
Peterson 2008, 506507.
11
See, Wolff 1736, 495: Veritas adeo, quae transcendentalis appellatur et rebus ipsis inesse
intelligitur, est. ordo in varietate eorum, quae simul sunt ac se invicem consequuntur, aut, si mavis,
ordo eorum, quae enti conveniunt. [The truth however, which is called transcendental and is
assumed to be inherent in the things themselves, constitutes the order in the variation of things,
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 63

that is perceived by the senses hides something that is contained in a higher mean-
ing, since nothing arises from nothing, ex nihilo nihil fit.12 All things are connected,
and they form both a horizontal and a vertical order of causal relations.13
The highest point of the system, the Prime Mover, ens entium or God, is a mate-
rial or synthetic principle, which comprises or anticipates the sensual world in its
temporal and spatial inconstancy.14 It is not the system that leads to the systematic
method, rather, the method is the necessary corollary of the system: the method
provides the path to the system.

4.3 Kelsens Reine Rechtslehre: die Grundnorm

In his major work Die reine Rechtslehre (1934), Hans Kelsen intended to establish
a legal science (Rechtswissenschaft) devoid of value judgements. The construction
of a Basic norm (Grundnorm) formed the basis for a purely scientific systemati-
zation of legal norms. Kelsen established the methodological framework for his
legal doctrine in clear opposition to natural law theory. The latter was, in Kelsens
view, a metaphysical legal order, that continued to influence legal science, despite
the apparent dominance of legal positivism in contemporary jurisprudence. Hence,
it is unsurprising that Kelsen in the development of a legal science of positive law,
strongly emphasized the differences between this project and natural law theory (for
example, Kelsen 1927/8).
Kelsens theoretical orientation is thus characterized by a non-cognitivist atti-
tude, in which objective knowledge of values is impossible. From this epistemologi-
cal position, he repudiates all attempts to constitute the binding force of legal norms
upon objective values as they represent an ideal inaccessible to human knowledge
(Kelsen 1945, 13). The critical focus of Kelsens approach is centred upon the legal
theories shaped by natural law, which are revealed to be ultimately based on the

which simultaneously exist and follow one after another, or, if you will, the order of things, which
are comprised in the essence]. All translations from Latin are those of the author.
12
On the use of logic in natural law theory, see Peterson 1998.
13
Wolff 1754, 62: Constans nimirum omnium obligationum ac jurium inter se nexus est., ut alia
ex aliis deduci continuo ratiocinationis filo possint, & veritatum inter se connexarum compagem
constituant, quod systema appellatur, ac a nobis systema veri nominis dici solet, quia augustum
hoc nomen, quemadmodum etiam aliis accidat, minus profanatur.[Undoubtedly there is a perma-
nent connection between all obligations and rights so that one thing can be deducted from the other
in a continuous path of thoughts, and they constitute a structure of interconnecting truths, which is
called a system, and which we usually call the system in its proper sense; this concept is venerable,
in the same way as accidental things are regarded as less venerable].
14
Wolff 1737, s.53, XVII: Dixi Deum esse ens, in quo continetur ratio sufficiens existentiae
universi, & hanc definitionem eius nominalem dedi in meditationibus meis metaphysicis, quoniam
a contingentia universi ad existentiam Dei argumentor. [I have said that God is the essence, in
which the principle of sufficient reason of the contingencies of the world is comprehended and I
have provided a formal definition in my meditationes metaphysici, since I adduce proof of Gods
existence from the contingencies of the world].
64 C. Peterson

metaphysical assumption that there is an ordering of human relations different


from positive law, higher and absolutely valid and just, because emanating from
nature, from human reason, or from the will of God (Ibid., 8). This assumption of
a natural law is, however, unable to be demonstrated by recourse to scientific method
and, thus, the alleged natural law, whatever the particular content attributed to it,
rests on judgements of value, which have no objectivity (Ibid., 11). Hence, natural
law theory reflects an epistemological contradiction, and its use can only be
described as arbitrary:
It either justifies positive law by proclaiming its agreement with the natural, reasonable, or
divine order, an agreement asserted but not proved; or it puts in question the validity of
positive law by claiming that it is in contradiction to one of the presupposed absolutes.15
(Ibid., 11)

Whatever the purpose may be to refer to natural law defence of, or attack on,
positive law its contents can never be the result of a scientific analysis. It is,
rather, the reflection of an essentially non-juridical form of thinking based on
politics.
Kelsens solution to the aporia of natural law commences from the strict division
of Sein and Sollen, i.e., what is and what ought to be, which is the expression of
the insight that it is not possible to deduce any normativity from bare facts. The
dichotomy Sein und Sollen then leads Kelsen to establish, as a fundamental
methodological principle of jurisprudence, that the law must be purged of all ele-
ments that are alien to its purpose, i.e., to confine legal science to a theory of posi-
tive law in its strict sense. With the so-called Reine Rechtslehre, Kelsen therefore
dissociates himself methodologically from contemporaneous legal science, which
has not maintained its distinctive, autonomous character in relation to other sciences
such as the social (e.g., sociology) and behavioural sciences (e.g., psychology).
According to Kelsen, contemporaneous theories of legal science have, in an uncriti-
cal manner, appropriated and introduced elements from psychology, biology, ethics
and theology with the result that the distinctive coherence of legal science has been
dissolved and accompanied by the introduction of propositions of value, which can-
not be established scientifically (Kelsen 1934, 1). In relation to this situation, how-
ever, Kelsen considers it is possible to attain value-free and, thus, scientific
knowledge of a normative order such as positive law. The prerequisite for such a
value-free legal science to be realized is that it demarcates its object as a closed
system of norms, which has been purified of all aspects of social reality. Furthermore,
such a purified system presupposes that a rigorous dividing line has to be drawn
between the moral contents of the norms, on the one hand, and their logical form
and systematic context, on the other. The dichotomy Sein und Sollen results in a
further, analogous division between the validity of the norms and their function in
society. The validity of a norm refers to its Sollen the quality or normative force,
of what ought to be, while the function or efficiency of the norm belongs to Sein
or the actual reality of society. Since the validity of norms cannot be deduced from

15
Kelsen, op.cit., loc. cit.
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 65

what is (Sein), the deduction must follow from a higher norm, which, in turn, initi-
ates a continuous process of regression, through the levels of the legal order, i.e., a
regressus, which reaches its end through a further methodological assumption of a
final, unconditioned Basic norm, a Grundnorm.
Kelsen accords the Grundnorm with a double function. To begin with it furnishes
a guarantee of epistemological unity, enabling the definition and analysis of the
normative material by cognition. It is constructed as an a priori, from which the
manifoldness of legal norms emanate and to which they can be returned. The
Grundnorm is, thus, a foundation of the system in the sense that it binds the norms
together in relationships of both vertical and horizontal causality:
Eine Vielheit von Normen bildet eine Einheit, ein System, eine Ordnung, wenn ihre Geltung
auf eine einzige Norm als letzten Grund dieser Geltung zurckgefhrt werden kann. [A
manifoldness of norms constitutes a unity, a system, an order, when its validity can be
returned to one norm only as the last foundation of this validity.] (Kelsen 1934, 62)

From an epistemological perspective, the assumption of an a priori foundation is


introduced in order to prevent regressus adinfinitum. The whole Kelsenian project
to establish a firm foundation for positive law (geltendes Recht) would collapse if
the theory does not fulfil this central epistemological demand.
The Grundnorm has, however, also an ontological or material function, as it has
to maintain the general presence of positive legal norms and legitimize their valid-
ity. Moreover, the positive legal norms are anticipated in the Grundnorm:
In der Grundnorm wurzelt letztlich die normative Bedeutung aller die Rechtsordnung kon-
stituierenden Tatbestnde. Nur unter Voraussetzung der Grundnorm kann das empirische
Material, das sich der rechtlichen Deutung darbietet, als Recht, das heisst als ein System
von Rechtsnormen gedeutet werden kann.
Sie (i.e. Grundnorm) ist nur der Ausdruck der notwendigen Voraussetzung jeder positiv-
istischen Erfahrung des Rechtsmaterials. Sie gilt, da sie nicht im Rechtsverfahren erzeugt
wird, nicht als positive Rechtsnorm, ist nicht gesetzt, sondern als Bedingung aller
Rechtssetzung, alles positiven Rechtsverfahrens vorausgesetzt.
[The normative significance of all the facts which constitute the legal order has ulti-
mately its root in the Grundnorm. It is only on condition of the Grundnorm that the empiri-
cal material, which presents itself to legal interpretation, can be interpreted as law, i.e., as a
system of legal norms. It (i.e., the Grundnorm) is only the expression of the necessary
prerequisite of every positive experience of the legal material. It is valid, since it is not
produced in legal practice, not as a positive legal norm, it is not made, but it is implied as
a prerequisite of all legal making, all positive legal procedure.] (Ibid., 66).

The Grundnorm is not only a logical a priori, or, as Kelsen expresses it, a logical
transcendental condition for knowledge of the norms of positive law of the legal
system; in addition, it is a material foundation of positive law and provides it with
its binding normative force. An ultimate foundation is established which confers
meaning and structure upon the reality of the norms of positive law. The epistemol-
ogy is thus defined by the assumption of the Grundnorm. The path to knowledge
constantly refers to the Grundnorm which has either an inductive or deductive
function.
Kelsen introduces the further precision that the norms of positive law are
gesetzt, and produced through a special Willensakt:
66 C. Peterson

Als Rechtsnorm gilt eine Norm stets nur darum, weil sie auf eine ganz bestimmte Weise
zustande gekommen, nach einer ganz bestimmten Regel erzeugt, nach einer spezifischen
Methode gesetzt wurde.16 [A norm is valid as a legal norm only because it is made in a
special way, produced according to a specific method] (Ibid., 64)

The legal norms are detached from any relationship to morality and natural law
and rendered autonomous by their deduction from from a static Grundnorm als
Ausfluss des gttlichen Willens, der Natur oder der reinen Vernunft.[Ibid., 64]. The
static Grundnorm of positive law cannot be material or synthetic, because this
would immediately render the foundation of the Reine Rechtslehre metaphysical.
Kelsen therefore defines the Grundnorm as something formal, without material con-
tent, as a basic rule:
Die Grundnorm einer positiven Rechtsordnung ist dagegen nichts anderes als die Grundregel
nach der die Normen der Rechtsordnung erzeugt werden, die Ein-Setzung des
Grundtatbestandes der Rechtserzeugung. Sie ist der Ausgangspunkt eines Verfahrens; sie
hat einen durchaus formal-dynamischen Charakter. Aus dieser Grundnorm lassen sich die
einzelnen Normen des Rechtssystems nicht logisch deduzieren. Sie mssen durch einen
besonderen Setzungsakt der kein Denk-, sondern ein Willensakt ist erzeugt werden.17
[The Grundnorm of a positive legal order is however nothing else than the fundamental rule
according to which the norms of the legal order are produced, the implementation of the
fundamental fact of law-making. It is the basis of a procedure; it has an entirely formal-
dynamic character. The individual norms of the legal system cannot be logically deduced
from this Grundnorm. They must be produced in a specific law-making act which is not
an act of thought, but an act of the will. ] (Ibid., 64)

The central question is whether the methodological construction of a formal,


dynamic Grundnorm is capable of being combined with the norms of positive law.
In relation to this question, Kelsens response becomes vague, when he explains that
Fhrt man die verschiedenen Normen eines Rechtssystems auf eine Grundnorm zurck, so
geschieht dies in der Weise, dass man zeigt, dass die Erzeugung der einzelnen Norm der
Grundnorm entsprechend vor sich gegangen ist.18 [If you return the different norms of a
legal system to a Grundnorm, this is done by showing that the individual norms have been
made in accordance with the Grundnorm.] (Ibid., 65)

This analysis is, however, only possible if the Grundnorm is materially defined.
If a material norm is subsumed under a purely formal principle the analysis can only
lead to one of two possible outcomes. According to the law of contradiction, the
norm can only be deemed either consistent or inconsistent with the formal principle,
since logic is incapable of making judgements concerning the validity of material
propositions. Hence, only a materially defined Grundnorm can preserve the mate-
rial validity of the legal system.
On the one hand, Kelsen tries to evade the problem by arguing that the Grundnorm
is a transcendental logical principle, a hypothesis with universal validity. It is a

16
Kelsen, op.cit., s. 64.
17
Kelsen, ibidem.
18
Kelsen, op.cit., s. 65.
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 67

principle, which does not form part of the law, but is situated externally, as a prereq-
uisite of the positive legal order:
Sie gilt, da sie nicht im Rechtsverfahren erzeugt wird, nicht als positive Rechtsnorm, ist
nicht gesetzt, sondern als Bedingung aller Rechtssetzung, alles positiven Rechtsverfahrens
vorausgesetzt.19 [It is valid, not because it has been generated by a legal procedure, not as a
positive legal norm, it is not made, but presupposed as the prerequisite of all law-making,
all legal procedure.] (Ibid., 66)

On the other hand, the answer to the question about the material validity of the
Grundnorm and further about its legitimizing force is that,
dasjenige, was das historisch erste verfassungsgebende Organ als seinen Willen geussert
hat, als Norm zu gelten habe, das ist die Grundvoraussetzung, von der alle Erkenntnis der
auf dieser Verfassung beruhenden Rechtsordnung ausgeht. Zwang soll gesetzt werden unter
den Bedingungen und auf die Weise, die der erste Verfassungsgeber oder die von ihm del-
egierten Instanzen bestimmen: das ist die schematische Formulierung der Grundnorm einer
Rechtsordnung.20 [what the historically first constitutional organ has declared as its will,
that it should be valid as a norm, is the fundamental prerequisite, from which all knowledge
of the legal order which depends on this constitution emanates. Force shall be used on the
conditions and in the way the giver of the constitution or the by him delegated instances
decide: that is the schematic formulation of the Grundnorm of a legal order.] (Ibid., 65)

When Kelsen explains and delineates the material contents and Sollen(ought)-
quality of the Grundnorm it is, thus, transformed into a historically defined entity.
The manner in which the Grundnorm, as a formal dynamic principle, is to be com-
bined with the historically defined positive law remains unclear. The clarity is con-
fined to the Grundnorm in its formal dynamic shape as the ultimate foundation and
legitimation for the validity and binding force of positive law.21
Kelsens attempt to combine a formal dynamic Grundnorm with a positive law
which develops historically suggests the reappearance and recurrence of the Platonic
chorismos-problem, namely, the unbridgeable gulf between the transcendental
world of ideas and the sensual world or world of shadows defined by time and
space.22 The realm of Platonic ideas are static and, therefore, movement or change
cannot arise from them. This difficulty becomes the subject of Aristotelian critique
in which Platos sharp dividing line between the transcendental world of ideas and
the temporal world is held to render impossible the explanation of the movement
and change which characterize the world of the senses. A similar critique can be
directed against Kelsenian position. It is not only the mediation between a transcen-
dental logical basis and a historically defined law which is a philosophically impos-
sible enterprise. What is more problematic is the fact that a transcendental logical

19
Kelsen, op cit., s. 66.
20
Kelsen, op.cit., s. 65f.
21
The Kantian and Neo-Kantian solution to this problem makes use of a fiction, namely, that the
material content of knowledge is understood as if it could be scientifically validated, see
Vaihinger 1968.
22
Plato, Republic, 509a,b, 510 b.
68 C. Peterson

category cannot legitimate material law. If the Grundnorm is to serve as the basis for
the legitimation of positive law it has to be material in character.
When Kelsen emphasizes the anti-metaphysical character of his Grundnorm by
placing it outside the realm of positive law, as a necessary prerequisite for the under-
standing of positive law, it leads to a deepening of the methodological problems. For,
on the one hand, the Grundnorm cannot be material if the non-metaphysical ambition
is to be fulfilled. On the other, a formal principle cannot legitimate the legal norms of
positive law. The consequence is the creation of a methodological double bind.
Kelsens anti-metaphysical ambition, which is above all manifest in the emphatic
division of Sein and Sollen, has its roots in the Marburg School of Neo-Kantian.23
Its objective is, in the work of Hermann Cohen, and as a guiding orientation in the
work of Natorp and the early Cassirer24 to restrict the scope of philosophy, as theo-
retical reason, to the provision of the ground for the developments and advances of
the sciences. In the spirit of Kant, this school of Neo-Kantianism engaged in an
intensified epistemological critique, which had the tendency to reduce philosophical
discourse, as theoretical reason, to the question of the boundaries of knowledge. The
critique of knowledge and formalism are thus two central elements of this Neo-
Kantian philosophy. The influence of Kant and Neo-Kantianism is unmistakable in
the Reine Rechtslehre, as is evident in the critical inquiry into, and demarcation of,
the boundaries of knowledge, which permeate the Kelsenian Sein Sollen schema.
The question is, however, if Kelsens Reine Rechtslehre is compatible with Kants
philosophy as a rigorous, critical method. As long as Kelsen limits himself to
according to the Grundnorm an exclusively epistemological function, i.e., as a logi-
cal systematizing principle, he can be considered to remain within the boundaries of
what can be considered to survive of the Kantian framework of critique.
For Kant, the study of empirical objects could constitute a form of knowledge
which attained the level of a science.25 Legal science was such an als-ob-science,
which presupposed a systematic knowledge derived from reason. In its capacity as a
metaphysics of law, it could fulfil the demands of a Kantian science. The material
contents of the system, on the other hand, could not serve as objective of scientific
propositions. The critical method had, in fact, led Kant to the conclusion that scientific
knowledge could not have material content. The true objective of science was, instead,
the principles of the operation of human reason, whereas an object whose existence
was situated in space and time lay outside the boundaries of scientific knowledge.
When Kelsen attaches a function of legitimacy to the Grundnorm, he transforms
a formal epistemological principle into a principle which is derived from an onto-
logical basis. In this transformation, the methodology of Kelsenian legal science
exceeds the limits of what, according to Kant, is scientifically permissible. Instead
of maintaining the rigorous separation of Sein and Sollen, he establishes a relation
between them. The Grundnorm thereby assumes the character of a Janus-face:
viewed from one direction the Grundnorm has the function of providing an

23
See Kelsen 1923, Vorrede, p. V XXIII and Kelsen 1992.
24
Cohen 1902; Natorp 1910; Cassirer 1910.
25
Kant 1983, 257 (BXXXIV).
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 69

o ntological basis for positive law, while viewed from another it functions as an
epistemological principle, which furnishes the guarantee of the formal unity of law.
Hence, the methodology Kelsens Reine Rechtslehre is unable to withstand the
application of Kants critical examination.26

4.4 Conclusion: die Grundnorm andthePrime Mover

The Archimedean point of natural law, the Prime Mover, has a double function
analogous to that of the Kelsenian concept of the Grundnorm. In part, it has a formal
or epistemological function, i.e., to guarantee the dogmatic unity of law and,
thereby, to avert the threat, from a scientific perspective, of a devastating regressus
adinfinitum. This element is accompanied by the ascription to the Grundnorm of a
material or ontological foundation with the purpose of legitimating the norms of
positive law. The Prime Mover or God is a material or synthetic a priori, from which
no methodological contradiction can arise in the deduction of positive law from
natural law. In natural law, ambition and method thus coincide. That which is recog-
nised and accorded a higher or superior metaphysical meaning is simultaneously
that which also ought to be. The methodological division of Sein and Sollen is
unknown to the theory of knowledge and science prior to the Enlightenment.
Logic has a central role in natural law methodology not only as an analytical
tool, but also as a means to attain synthetic knowledge of law. The two uses of logic
correspond to the two functions of the Prime Mover, i.e., to guarantee both episte-
mological and ontological unity. The purpose of logic is, thus, both to secure the
deductive nature of knowledge and to construct a through a framework of stable,
formal meaning a consistent system of norms. This is combined with the construc-
tion of an ontological foundation, through the method of induction, which provides
the legitimation for positive law. In this ontological aspect, logic has a synthesising
function orientated to the generation of knowledge of natural law (Peterson 1998,
183ff.). To the theorists of natural law, the use of logic in the latter sense is unac-
companied by the limits of a pre-existing methodology.
When the Enlightenment philosophers, especially David Hume, subjected the
preceding metaphysical framework, itself redefined as Schulphilosophie, to their
unsparing criticism, the critique centred upon the concepts of essence and causality.
The idea of a metaphysical truth that was attainable by human knowledge was
rejected. Consequently, there was no purpose for Hume to investigate logic as a
method which conferred the possibility of access to knowledge of the essence of
things. The further Kantian precision, through a critical philosophy which super-
seded the initial Humean challenge, finally established the parameters of logic as
one which can have only a regulative function. According to this restriction, logic
and, in particular the propositions derived deductively, can furnish no material

26
Note that Kelsen, in the second edition of the Reine Rechtslehre, attempted to revise his theory
in order to avoid this logical inconsistency.
70 C. Peterson

knowledge of objects. Logic merely enables a regulative knowledge from a require-


ment of non-contradiction. With logic we can only state that something cannot
simultaneously be and not be. (Peterson 1998, 186ff.)
When Kelsen combines a formal, logical transcendental principle with positive
law, which is supposed to be legitimatised by the same founding principle, it there-
fore leads to a contradiction (Peterson 2013, 500505). It means that his theory is
constructed from a relation between Sein and Sollen, which from the framework of
Kantian transcendental philosophy, is an impermissible confusion of a scientifically
established a priori and a temporal reality, i.e., an a posteriori.
As long as the established Grundnorm has only to function as an epistemological
principle centred upon the elimination of the potential for regressus in infinitum,
there is no methodological problem, since the system is not in itself orientated to
legitimate its content. In this more restricted sense, the Grundnorm has the purpose
to regulate the legal material and, thereby, establish the preconditions for a secure
and unbiased use of law (so-called formal Rechtsicherheit). However, as soon as the
Grundnorm is accorded the task of legitimating positive law, by guaranteeing its
validity and binding force, the fundamental and necessary division of Sein and
Sollen dissolves.
The result is that the project of a Reine Rechtslehre, in spite of Kelsens method-
ological intentions, leads to a confusion of Sein and Sollen. The Reine Rechtslehre,
as a legal science of positive law, is thus irreconcilable with the notion of critique
which arose with the Enlightenment. It indicates a continued affinity with natural
law theory rather than with the legal positivism of the later nineteenth century.
The methodology of Kelsen is marked by an intrinsic ambivalence. His ambition
is, on the one hand, expressis verbis, to establish a non-metaphysical legal theory of
positive law. The project of the Reine Rechtslehre is accordingly explicitly con-
structed through a fundamental critique of natural law theory. The ambition to
establish an ultimate, legitimating foundation for the binding force of positive law
inevitably comes into conflict with the construction of a methodological model
based upon the division of Sein and Sollen. While Kelsen commences from an
overtly anti-metaphysical concept of science, this is accompanied by the introduc-
tion of questions which result in the reintroduction of metaphysics. Consequently,
the Grundnorm is effectively situated in a manner which is similar to that of
Aristotles Prime Mover, i.e., to connect the realm of Sein to that of Sollen. The
search for a transcendental point of departure, an Archimedean point, rather than
establishing its possibilty, produces an irresolvable logical problem, an aporia. The
transcendental and the positive are two essentially incompatible designations. If
they are to be brought together, this would, in turn, lead to the abandonment of a
notion of methodological unity predicated upon the principle of non-contradiction.
The Kelsenian approach is determined by the extension of the validity of Kants
transcendental method beyond its original Kantian domain of theoretical philoso-
phy. The consequence is evident: the project of the Reine Rechtslehre is contrary to
the very foundation of Kants critical philosophy. The irony is, however, that Kelsen
considers himself to be a follower Kant and his critical philosophy, while the con-
struction his theory of law results in a relapse into natural law theory.
4 Natural Law Systematics: Is There aGrundnorm inNatural Law? 71

References

Aristotle. 1995. On the Heavens I and II. Translated and edited by Stuart Leggatt. Warminster: Aris
& Phillips.
, Metaphysics. 1908. In: The Works of Aristotle, vol. VIII, edited by and Trans. J.A. Smith,
and W.D. Ross. Oxford: Clarendon Press.
, Physics. 1953. In: The Works of Aristotle, vol. II. Translated by R.P. Hardie and R.K. Gaye
under the editorship of W.D. Ross. Oxford: Clarendon Press.
. n.d. Posterior Analytics. Trans. G.R.G. Mure. Logic Museum (www.logicmuseum. com)
Baumeister, F.C. 1746. Philosophia definitiva: hoc est definitions philosophicae ex systemate
celeb. Wolfii. Wittemberg: Ahlfeld.
Cassirer, E. 1910. Substanzbegriff und Funktionsbegriff: Untersuchungen ber die Grundfragen
der Erkenntniskriti k. Berlin: Cassirer.
Cohen, H. 1902. Logik der reinen Erkenntniss. Berlin: Cassirer.
Kant, I. 1983. Kritik der Urteilskraft (2nd edition 1793). In: Werke in sechs Bnden, edited by
Wilhelm Weischedel, V, Darmstadt 1983: Wissenschaftliche Buchgesellschaft.
Kelsen, Hans. 1923 (1911). Hauptprobleme der Staatsrechtslehre, 2nd printing. Tbingen: Mohr.
. 1927/28. Naturrecht und positives Recht. Eine Untersuchung ihres gegenseitigen
Verhltnisses. Internationale Zeitschrift fr Theorie des Rechts 2: 7194.
. 1934. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Leipzig/
Vienna: 1934.
. 1945. General Theory of Law and State, 1945. Cambridge, MA: Harvard University
Press.
. 1992. Reine Rechtslehre, Labandismus und Neukantianismus. Ein Brief an Renato
Treves. In Formalismo giuridico e realt sociale, H. Kelsen and R. Treves, edited by S.L.
Paulson. Naples/Rome: Edizioni Scientifiche Italiane.
Natorp, P. 1910. Die logischen grundlagen der exakten wissenschaften. Leipzig: BG Teubner.
Peterson, C. 1992. Rechtsvereinheitlichung durch Naturrecht? Zur Frage des Naturrechts in der
schulphilosophischen Rechtstheorie des 18. Jahrhunderts. Quaderni Fiorentini per la Storia
del Pensiero Giuridico 21: 735.
. 1998. Zur Anwendung der Logik in der Naturrechtslehre von Christian Wolff. In
Entwicklung der Methodenlehre in Rechtswissenschaft und Philosophie vom 16. bis zum 18.
Jahrhundert, edited by J. Schrder, 177189. Stuttgart: Fritz Steiner.
. 2008. Der erste unbewegte Beweger. Ein aristotelisches Thema in der Geschichte der
Rechtswissenschaft. In Festschrift Wilhelm Brauneder zum 65. Geburtstag, edited by G. Kohl
et al., 499516. Vienna: Manz.
. 2013. Daniel Bothius und das Kantsche Dilemma. In Festschrift fr Jan Schrder zum
70. Geburtstag, edited by A. Kiehnle et al., 497516. Tbingen: Mohr.
Plato. 1991. The Republica. The Complete and Unabridged Jowett Translation. New York: Vintage
Books.
Pronay, A., 1980. Untersuchungen zu bei Aristoteles. Unpublished Dissertation.
Basel.
Vaihinger, H. 1968. The Philosophy of As If. London: Routledge.
Wolff, C. 1713. Vernnfftige Gedancken von den Krfften des menschlichen Verstandes und ihrem
richtigen Gebrauche in Erkntnis der Wahrheit. Rengersche Buchhandlung (Deutsche Logik):
Halle.
. 1725. Vernnfftige Gedancken von Gott, der Welt und der Seele des Menschen. Rengersche
Buchhandlung (Deutsche Metaphysik): Halle.
. 1736. Philosophia Prima sive Ontologia, methodo scientifica pertractata. Halle: Officina
Rengeriana.
. 1737. De differentia nexus rerum sapientis et fatalis necessitatis. Halle: Officina
Rengeriana.
. 1754. Institutiones Juris Naturae et Gentium. Halle: Officina Rengeriana.
Part III
Kelsens Constitutionalism
Chapter 5
Kelsen andContemporary Constitutionalism:
TheContinued Presence ofKelsenian Themes

PaoloCarrozza

Abstract This chapter aims to demonstrate the enduring importance of Kelsens


thought in contemporary constitutionalism and contends that constitutionalist are
considerably more Kelsenian than is generally supposed. The chapter commences
with a short reconstruction of three different periods in Kelsens legal thought: his
contribution to Vienna law school under the influence of the German positivism;
Kelsens commitment, from 1918 to 1933, to the newly-born Austrian republic; his
forced emigration to the U.S.A. in 1940 and his encounter with the American school
of law and political science. Kelsens contribution to contemporary constitutional-
ism begins with the great influence of his thought on the Austrian Constitution of
1920, which Kelsen defended in newspaper articles as well as in scholarly papers.
The chapter maintains that Kelsenian legal science has continuing significance in
two main fields of contemporary constitutionalism, both originated by the consider-
ation of the constitution as a higher law: the first, the Austrian model for the judicial
review of legislation, which shaped the European model of constitutional adjudica-
tion, nowadays diffused throughout the world; and the second, the gradualist the-
ory of the sources of law (the Stufenbau). It is argued that Kelsens legal thought has
enduring import in the present-day crisis of constitutionalism not only for the legal
understanding of multi-level government (monism v. dualism) but also for the glo-
balization of constitutionalism and the idea of open-ended constitutionalism.

5.1 Introduction

The aim of this chapter is to demonstrate that contemporary jurists and lawyers are
much more Kelsenian than is generally supposed. They remain more Kelsenian than
legal and moral philosophers or political scientists particularly when discussing the
unconstitutional character of a law; the ascendency of the superior norm over the
subordinate norm; or the jurisdiction of a region or member state (i.e., whether a

P. Carrozza (*)
Institute of Law, Politics and Development, SantAnna School of Advanced Studies,
Pisa, Italy
e-mail: paolo.carrozza@sssup.it

Springer International Publishing AG 2017 75


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_5
76 P. Carrozza

certain regional norm is valid or not). For a significant body of academic work, the
legacy of Kelsens thought is very important for the growth and elaboration of the
European model of the judicial review of legislation (see Cruz Villalon 1987, 341
ff.; Pizzorusso 1982, 527 ff.; Cappelletti 1973, 101 ff.) and for the study of the
sources of law. Indeed, few would deny that Kelsens legal philosophy has a critical
place in the field of legal reasoning. This appears true especially when considering
the challenges to legal thought and reasoning posed by both the functioning of
supranational legal orders and by the pluralism typical of the era of globalization,
regardless of the often justified criticism concerning the Kelsenian methodological
project to elaborate a pure theory of law and the many difficulties and ambiguities
arising from his purported formalism and the philosophical foundation of his work.

5.2 T
 he Pertinence ofIdentifying Three Different Periods
intheHistory ofHans Kelsens Legal Thought

The Vienna School, which emerged in a brief period of existence of the First
Austrian Republic, represents a particularly distinctive and significant body of theo-
retical work concerning law and politics. The School, while centred upon Kelsen,
included other important jurists such as Josep Kunz, Felix Kaufmann, Fritz Sander,
Fritz Schreier, Adolf Merkl, and Alfred von Verdross, also known as the jung-
sterreichische Schule (see Mock 1970, 27; Patrono 1987, viii). The School can be
considered to represent a centrally important movement or tendency in continental
European legal thought which extends beyond the particular field of constitutional
law. An engagement with the work of the Vienna School reveals the influence of
Carl Friedrich von Gerber, Paul Laband and Georg Jellinek and the development of
a form of legal positivism which breaks with the preceding German tradition of
legal positivism of the final decades of the nineteenth century.

5.2.1 T
 he Contribution oftheVienna School Marked
bytheInfluence ofGerman Positivist Legal Thought

From the perspective of constitutional and public law, the principal contribution of
the Vienna School, and of Kelsens thought in particular, was the sharpening of the
existing German positivist legal method in public and constitutional law; this was an
abstract and conceptual construction to which Kelsen brought coherence and a logi-
cal perfection that remained unsurpassed by the same German scholars. In the sec-
ond half of the nineteenth century, legal thinking in Germany reflected the ascendancy
of positivist method and philosophy: each science and, thus, legal thought, has its
method and this method is governed by principles and concepts elaborated by the
logical construction of general and dogmatic rules. These rules, which typify each
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 77

science, have to be distinguished methodologically purified from the rules that


govern the other sciences: hence legal reasoning, as the basis for the construction of
an autonomous legal science, must be purified of all political, historical and socio-
logical conceptions. The autonomy of a distinctively legal science from the other
sciences is then definitively established.
It is pertinent to pose the question of why this originated in Germany and Vienna,
and not in France, Italy or Spain, where the German Legal Method was later
exported. It is possible to respond on the basis of two main reasons. The first, a
historical reason: the initial political division and fragmentation of Germany (into
around 40 small states), the concomitant need for establish both political and legal
unification in which the reconductio ad unitatem of the legal order is the main
framework of Recht Methoden. The second is situated in the development of a posi-
tivist approach to reasoning in the legal sciences, not only in public law, but also in
civil law and administrative law; and the subsequent exportation of this model of
legal thought to Italy, Spain and other countries. The development gave rise to a
particular tradition in the history of law, the so-called Roman-German tradition (see
David 1973, 29ff. and Zweigert and Ktz 1998, 164 ff.).1
The definition and delineation of the typical functions of the state (legislative,
executive and judiciary) and of the state as a legal order (ordinamento giuridico,
Rechtsordnung, legal system) were the most important achievements of such
German legal positivist scholars as von Gerber, Laband and Jellinek. Kelsen and the
Vienna School contributed to this tradition with the idea of the constitution as higher
law and with the idea of a hierarchical and competency relationship between legal
norms (from constitutional norms to parliamentary legislation to administrative
regulation and concrete acts, both legal judgments and administrative acts): the
Stufenbau or gradualist theory of norms. Here, a hierarchical ordering of norms,
based upon the necessity of the interconnection of the sources of law with each
other, thereby entailing that respect for the superior (and more general) provision is
the condition of validity of the inferior (and more concrete) provision. These are the
most important aspect of Kelsens constitutional thought. Although these elements
of Kelsens constitutional thinking are already prefigured in his 1911 Hauptprobleme
der Staatsrechtslehre (see Kelsen 1911) they were only provided with a more com-
prehensive and sophisticated presentation after World War I, during the period of the
new Austrian Republic.

1
This is a tradition that has been studied deeply by these famous comparativists within the field of
private law. However, the tradition has, in contrast, received less attention within the field of public
law (see, for example, in relation to Italian administrative law, Cassese 1971).
78 P. Carrozza

5.2.2 K
 elsens Commitment totheNewborn Austrian Republic
(From 1918 to1933)

In 1919 Hans Kelsen was engaged by the Austrian Premier Karl Renner in order to
write some aspects of the new republican constitution and to participate in the work
of the constituent assembly. It is generally held that Kelsens legal theories had a
substantial influence on the Austrian constitution of 1920: the predominant interpre-
tation of the relationship between Kelsenian legal science and the Austrian constitu-
tion of 1920 is of a direct and unmediated reflection of the application of Kelsenian
legal science (see, Olechowski 2009, 212 ff.; hlinger 2003, 206 ff.; Schmitz 1981).
It is possible, however, in contrast to this prevailing position, to consider the rela-
tionship as a more complex process in which, after the defeat and collapse of the
Hapsburg Empire, the political conflict and negotiation between the Christian
Democrat party and the Socialist party at the founding of the Austrian Republic,
actively contributed to important modifications and alterations to the initial
Kelsenian approach to the conception of a constitutional framework. The effect of
this political conflict finds juridical reflection in the federal solution (the compro-
mise between the red Vienna and the white Lnder of German-speaking Austria);
the call for unity and negotation between the two major parties in establishing new
constitutional rules; and the electoral struggle between the same two parties, which
was an obstacle in the elaboration and selection of these rules, given that the two
major parties had contrasting ideologies and programmes. The overarching contri-
bution of all these factors led to the formulation of a difficult juridical compromise
which was probably at the origin of Kelsens idea of a value-free constitution: the
constitution as a system of norms whose function is to establish and to control the
fundamental powers and functions of the state and, thus, neither a political pro-
gramme nor the mere translation of a political ideology into legal norms.
The difficulties encountered in the legislative implementation of constitutional
provisions, in transforming the long and complex European post-World War II
constitutions into positive and legislative norms, and the implementation of consti-
tutional norms inspired by different and sometimes contradictory principles advo-
cated by diverse constituent parties became the central drama arising from such
explicitly value-oriented constitutions as Italys and, to a certain extent Germanys,
following the defeat of Fascism and Nazism, and later with those of Spain and
Portugal (for the distinction between short and long constitutions, see
Calamandrei 1995, 6). The compromise among different political parties and inter-
est groups, each engaging in a direct translation of its own ideology and political
programme into constitutional norms, becomes effectively inoperative, within the
constitutional framework, when this has, as its object, norms concerning the eco-
nomic regime or welfare rights and even fundamental rights, so that it is then neces-
sary to establish a hierarchy among those rights and norms in order to resolve a
case, to engage in constitutional adjudication, or, in short, to remain capable of
applying and interpreting legal rules.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 79

If the enforcement of constitutional norms regarding welfare rights and the eco-
nomic regime is mainly a political question, the first significant legacy of Kelsenian
thought for contemporary constitutionalism (and for the many long European con-
stitutions) is that constitutional norms should be considered, firstly, as norms and,
thus, that they should be accorded this status by interpreters (such as judges but also
citizens, public servants and so on) as such, thereby giving effect to their whole
significance and their legal content in the process of legal interpretation. This, in
turn, requires the adoption of both a process of constructive interpretation and a
process of concrete application of the norms to the facts (see Barile 1951 and Garca
de Enterra 1981).
The second significant legacy of Kelsenian thought of this period is the idea of
parliamentarism. The ideas of a parliamentary republic and a purely parliamentary
form of government were the subject of explicit theoretical reflection, by Kelsen, in
several important essays on the relations among political parties, democracy and
parliamentarism (see Kelsen 1920, 1925). This theoretical work was subsequently
combined with Kelsens involvement in the public constitutional debate, through
various pamphlets against the 1929 reform of the Austrian Constitution, defined as
semi-fascist, until he broke definitively with the new nationalist government, and
voluntarily abandoned Austria. There is a great modernity in this double commit-
ment the legal scholar and pamphleteer the emphasis upon the equally important
task of public intervention, debate and education regarding the meaning and the
risks of the 1929 constitutional reform (see, Kelsen 1929a, b, c).2

5.2.3 T
 he Forced Emigration totheU.S.A.: Kelsen
andtheProblem ofDemocracy

During the years spent at Harvard and Berkeley, Kelsens engagement and concep-
tual framework produces work which is comparatively less substantial than that of
the period prior to emigration. In the U.S.A., Kelsen compared his own theories
with American common law principles and constitutional philosophies; however, in
the most relevant and significant work of this period (see Kelsen 1945) indicates
that, from the perspective of constitutional theory, the confrontation with the
American academic tradition has the effect of rendering his theoretical framework
more ambiguous and contradictory than in the previous writings (see, for example,
Kelsen 1945, 165 ff., 332 ff).
On the other hand, the distinctive case-based method dominating American con-
stitutional law (until the profound transformation introduced by the Harvard Law
School scholar Lawrence Tribe in his famous handbook and not casebook, see
Tribe 1978) was accompanied by the attendant difficulty of American scholars to

2
Kelsen was, perhaps, the first jurist sought to intervene in the existing political debate through
both the form of newspaper articles and form of academic writing in the form of books, article and
reviews.
80 P. Carrozza

engage with Kelsens conceptual legal method. This led Kelsen increasingly towards
the fields of politics and sociology and to a concentration upon the question of
democracy and the international legal order, rather than constitutional themes. The
few works in which Kelsen engages in constitutional analysis (see Kelsen 1942)
were of marginal interest for contemporary, American constitutional theory and
were intended more for describing, to American scholars, the main features of the
Austrian model of the judicial review of legislation than for the initiation of a theo-
retical debate on the utility of the judicial review in U.S.A. and Europe. Kelsens
work on democracy and justice (see, for example, Kelsen 1948b, 1949, 1955, 1957)
and the international legal order (see, for example, Kelsen 1944, 1948a) transformed
the American academic position and definition of Kelsen into that of a politologist,
a scholar of political science, rather than of legal method.
Thus, the most interesting parts of General Theory of Law and State are those
where he reworks and refines his gradualist theory of the sources of law (see Kelsen
1945, 125 ff.) and the parliamentary form of government (see Kelsen 1945, 274 ff.),
questions which were largely unknown to American scholars. The parts of General
Theory concerning judicial decision-making are, in contrast, less interesting and
have less coherence in relation to Kelsens previous work (see Kelsen 1945, 165 ff).3
The limited acknowledgement and effect of Kelsens work, during the period
spent in the U.S.A. is also the result of the prevailing insularity of contemporaneous
American scholars, manifesting itself in a lack of interest in comparative law or the
new European constitutionalism. This was the period of the Cold War, of
McCarthyism, when many, highly qualified and distinctive European legal scholars
were present in the political science departments rather than the law departments of
American Universities. The first courses and books in comparative constitutional
law appeared only in the period after the 1970s, due to scholars such as Eric Stein
and others (Stein 1991, 2000, Cappelletti and Cohen 1979).

5.3 K
 elsens Golden Age andHis Contribution
toContemporary Constitutionalism

The emergence and significant development of Kelsens theoretical framework can


thus be situated in the reciprocal relationship between Kelsens conception of the
constitution and the political events of the newly established Austrian Republic.

3
The emigration of Weimar and Austrian jurists to the U.S.A. still remains largely unexamined in
the history of ideas and legal thinking, and the importance and impact that many jurists from
Weimar or Austria such as Neumann, Kelsen, Fraenkel, Otto Kahn-Freund, Sinzheimer and
Kirchheimer had in their new country could be better investigated: among the few works dealing
with the American impact of Weimarian jurists see: on Sinzheimer, Coutu 2012; on Neumann and
Kirchheimer, Scheuerman 1997; on Kirchheimer and Fraenkel, van Ooyen 2014; on Neumann,
Salzborn 2009. In Italy there is only one piece of work which has been studied with more attention:
the impact of Otto Kahn-Freund on the United Kingdoms labour law, thanks to Gaetano Vardaro
(see Vardaro 1982).
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 81

Within the Kelsenian theory of constitutionalism, the specific approach to the role
of the Constitutional Court became a foundational starting point for continental
European scholars and students concerning the discussion of the European model
for the judicial review of legislation.

5.3.1 A
 Committed Jurist: TheInfluence ofKelsens Thought
ontheAustrian Constitution of1920 andIts Defense

The Kelsenian theory of the constitution was also one which provided the basis for
an engagement in a particular defence of both the juridical form of a constitution
and the notion of constitutionalism. The defence, in which Kelsens position became
increasingly polemical in character, led to the overlap with a long and well-known
cultural debate about the role and the function of defending the constitution. The
famous essay La garantie jurisdictionelle de la Constitution (la justice constitutio-
nelle), published in 1928 (Kelsen 1928) prompted a seminal debate between a num-
ber of the most significant European scholars of public law (such as, Berthlemy,
Carr de Malberg, Duez, Fleiner, Mestre, Mirkine-Guetzvitch, Thoma, though not
Eduard Lambert4) at the Institut International de Droit Public (Institut International
de Droit Public 1929).
The increasingly polemical tone becomes evident in Der Staat als Integration, a
long pamphlet edited in 1930 (Kelsen 1930) containing the critique of Rudolf
Smends constitutional theory of integration (i.e., the idea of the overcoming of
the separation between the state and society through the material integration of citi-
zens in the values and the contents of the constitution: see, Smend 1928): the strong
critique is centred upon the incoherence of Smends theories of integration as a
theory of constitutionalism. The full intersection of polemic and theoretical analysis
is realized in the later essay, Wer soll der Hter der Verfassung sein? (Kelsen 1931),
in which Kelsen, as a direct critique of Carl Schmitts Der Hter der Verfassung
(Schmitt 1929), provides the most strenuous defense of the position and role of the
Austrian Constitutional Court. The critique centres upon the Schmittian defence of
the role of the President, under the Weimar Constitution and, in relation to Article
48, in particular its conferral of emergency powers, as the effective guardian of the
constitutional order.
This text is an exemplary instance of Kelsenian thought: the demonstration of
sophisticated constitutional analysis combined with a subtle political realism, which
maintains the distinction between law and politics while introducing the specific

4
In 1921 Eduard Lambert, the then director of the Institut de Droit Compar in Lyon (which he
founded in 1920), published his famous pamphlet Le gouvernement des juges, opposing the intro-
duction in France, and Europe as a whole, of the American approach to the judicial review of leg-
islation (see, Lambert 1921).
82 P. Carrozza

notion of Law politics, or the policy of law-making (the notion of Law politics
appears in the first page of the essay: see, Kelsen 1931, 576).5

5.3.2 The Constitution asaHigher Law andIts Consequences

At the origin of Kelsens conception of the judicial review of legislation there is the
assumption of the rigid character of the constitution, and the belief that the federal
organization of the state must be guaranteed by the majorities who govern both the
national parliament and the Lnder (Cruz Villalon 1987, 232 ff.; Zagrebelsky 1977,
17 ff.).
In this description, the potential affinity becomes evident with the conception of
the constitution in the earlier operation of Marshalls U.S.Supreme Court, expressed
in Marbury v. Madison (1803). The notion of constitutional justice (as continental
Europeans call judicial review of legislation entrusted to Constitutional Courts, as a
special part of the judiciary) was initially seen, in continental Europe, as an instru-
ment for the solution of federal constitutional litigation: in short, as an arbiter of
federal litigation in order to neutralize political conflicts. The most interesting
development of constitutional justice the protection of the constitutional and fun-
damental rights of individual citizens was a gradual achievement which required
a further step.

5.3.2.1 T
 he Judicial Review ofLegislation: AttheOrigins
oftheEuropean Model ofConstitutional Adjudication

The form of government of the new Austrian Republic, a purely parliamentary


republic, was very different from that of the U.S.A at the beginning of the nine-
teenth century. A proportional electoral system based upon proportional representa-
tion, the role of mass-parties in guiding political struggle, the difficulty of reconciling
red Vienna and the white Lnder: all these factors required a distinctly different
solution than the one adopted in the U.S.A.
Since the French revolutionary Constitution of 1791,6 the principle of the separa-
tion of powers was interpreted by nineteenth century European constitutionalism as
the exclusion or prohibition of judicial intervention in the conflicts between political

5
This concept re-emerged among Italian legal scholars, because of the journal Politica del diritto
(published since 1970 by Il Mulino), the primary theoretical journal of the Italian realist legal
movement.
6
See Chapitre V (Du Pouvoir Judiciare), art. 3: Les tribunaux ne peuvent, ni simmiscer dans
lexercice du Pouvoir lgislatif, ou suspendre lexcution des lois, ni entreprendre sur les fonctions
administratives, ou citer devant eux les administrateurs pour raison de leurs fonctions. [The courts
cannot interfere in the exercise of legislative power, nor suspend the execution of laws, nor engage
in administrative functions, nor summon before them administrators by reason of their functions].
On the question of the origin of the separation of powers doctrine, see Troper 1980, Blachr 2001.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 83

bodies (in the French tradition they were entrusted to the government, in the German
one see art. 76 of 1871 federal Constitution they were entrusted to the Bundesrat).
The Kelsenian approach, in contrast, distanced itself from the prevailing doctrine of
the separation of powers (for Kelsens subsequent theoretical reflection on this doc-
trine, see Kelsen 1924), and recentred itself upon the juridification and political
neutralization of such conflicts through the introduction of a new judicial tribunal,
the Constitutional Court, whose members were nominated for life by the Federal
President on the recommendation of (a) the Federal Government (six members, the
President and the Vice-President) and (b) the two legislative bodies of the Federal
Parliament (National Council Nationalrat - and the Federal Council Bundesrat),
each of which recommends three members (art. 147 Austrian Const.).
The new Austrian Constitutional Court was empowered only to annul legislation
declared as unconstitutional. The role of the Constitutional Court, as Kelsen empha-
sized (see Kelsen 1928, Chap IV, sect. I), is that of a negative legislator: it may not
replace unconstitutional legislation with a new, positive provision. It was, thus, a
court, a judicial institution and not a political body: there was no judicial law-
making because the substitution of the unconstitutional provision was a task for the
Parliament, not for the Constitutional Court.
The Constitutional Court was also distinguished by the manner of the selection
and appointment of its judges. The selection and appointment, through a process of
direct nomination and election by political bodies, enabled a degree of political
regulation and guarantee of the legitimacy of the Court. This process of selection
and appointment was a further process of development of the continental Europe
tradition. For, since the nineteenth century in continental Europe, judges were
appointed as public servants, beginning their career in the special, judicial civil
service at the conclusion of their initial legal studies, and were chosen by means of
a public selection procedure aimed at assessing their professional ability and their
knowledge of law. It is the existence of the Constitutional Court which distinguishes
the Austrian Constitution from the German Weimar Constitution (see Stolleis 2003).
The introduction of a Constitutional Court within the framework of the Austrian
Constitution remains a central aspect of Kelsens theoretical reflection during the
1920s. Kelsen explained to his contemporaries the importance of this institution and
its centrality to a legal science of positive law in many writings published abroad
such as Verfassungs und Verwaltungsgerichtsbarkeit (see Kelsen 1923) which was
then subsequently enhanced by the broader theoretical exposition in La garantie
jurisdictionelle de la Constitution (see Kelsen 1928). In contrast, the Reine
Rechtslehre (see, Kelsen 1934) contains a comparatively brief discussion of consti-
tutionalism (see Bongiovanni 1998 and the 1928 thesis of Eisenmann 1986. For a
critical analysis, see Troper 1995).7

7
Renato Treves recounts that in September of 1932 he met Hans Kelsen in Cologne, where Kelsen
gave him a manuscript of a new work (see Treves 1967, 12). This manuscript was then translated
into italian by Treves and published in the journal Archivio Giuridico in 1933, before the publica-
tion of the German edition (see Kelsen 1933). Kelsen had intended to emigrate from Germany, and
sought the translation of his works into languages other than German. According to Treves, the first
84 P. Carrozza

According to the logic of the Kelsenian notion of constitutional justice, as


Kelsen explained in a famous essay that describes the new Austrian Constitution to
his contemporaries (see Kelsen 1923), the Austrian Constitution entrusts to the
Verfassungsgerichthof (the Constitutional Court (C.C.)) the potential to review the
following levels of the legal system:
Statutes enacted by the federal parliament and legislatures of the Lnder on the
claim of central and regional governments (art. 140 Austrian Const.);
Regulations having the force of law (arts. 139 and 140 Const.).This competence
of the C.C. was very important because of its rules: when a tribunal believes that
a regulation is unconstitutional and the question is preliminary and necessary to
resolve the case, the tribunal must remit the question to the C.C. and suspend the
proceedings pending the response of the C.C.The so-called preliminary ruling
theorized by Kelsen (see Kelsen 1928, Chap. V), and introduced in the Austrian
Constitution of 1920, served as a model for the various forms of preliminary rul-
ing or judgement followed by the numerous constitutions of the post-World War
II era, which entrusted the control over the constitutional legitimacy of laws to
their Constitutional Courts (such as the Spanish constitution of 1931; the Italian
and German constitutions of 1948 and 1949 respectively; the Spanish constitu-
tion of 1978; the Portuguese constitution of 1976; and the French constitution,
which by its new art. 61, after the reform of 2009, introduced the so-called excep-
tion dinconstitutionnalit). This form of access to the judicial review of legisla-
tion (and of other quasi-legislative acts of public institutions) has become far
more prevalent following the accession of many European states to the European
Union. Judges of every Member State of the European Union are aware of this
capacity to review national legislation in relation to its conformity to relevant
provisions of European Union Treaties: the preliminary rulings originally pro-
vided for by art. 177 (then subsequently defined in art. 234, and now, after
Lisbon, art. 267 of the Treaty) have the same form (the difference is located in
the reference to the Treaties rather than the provisions of the national constitu-
tion) as the original Kelsenian conception of preliminary rulings;
Direct claims of citizens against administrative acts alleging the violation of con-
stitutional rights, conditional upon the previous failure of all ordinary claims (art.
144 Const.): this way of access was also decisive for the development of the
European model of constitutional justice, being the prototype for all forms of
direct claim (the Spanish amparo constitucional in the Constitutions of 1931 and
1978; the German Verfassungsbeschwerde introduced in 1949 and other similar
forms of access to Constitutional Court which are widespread in Europe) (for
Kelsens opinion about the direct claim see Kelsen 1923, 29 ff.);
Competency and jurisdictional conflicts between judges and administrative bod-
ies and among judges in different judicial fields (civil, administrative, etc.) (art.
138 Const.);

version of Reine Rechtslehere in1933 was published, in addition, in Spanish, Swedish, Flemish
and other European languages.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 85

Criminal charges and proceedings (art. 142 Const.) against the federal president,
and the members of national and local government, in order to exclude every
form of immunity of the governmental powers from prosecution (the notion of
the rule of law (Rechtsstaat)).
It is very difficult, if not impossible, to determine, in detail, the direct contribu-
tion of Kelsens thought to each one of these features of the Austrian model of
constitutional justice (see the spectrum of positions exemplified by hlinger 1983,
2003; Paulson 2000; Schmitz 1981, 2003).
Beyond the question of filiation, Kelsens decisive and enduring contribution to
the genesis and diffusion of a juridical conception of constitutional justice is evident
in the contemporary form of European constitutionalism whose foundations remain
embedded in a Kelsenian form of constitutional justice (Cappelletti 1973, 112;
Pizzorusso 1982, 522). The subsequent creation and practice of different European
constitutional courts (including the more recent experience of the European Court
of Justice), has led to further, significant developments in European legal thought
concerning constitutional justice. Legal scholars considering the notion of constitu-
tional justice in the Constitutions of the interwar era (see, in particular, art. 19 Const.
Weimar, arts. 138 and 140 Const. of Austria, arts. 100 and 121 Spanish Const. of
1931) introduced the distinction between the two different functions of constitu-
tional justice: the solution of conflicts among the organs of the State, the so-called
Staatsgerichtsbarkeit, and the function of the so-called Verfassungsgerichtsbarkeit,
which was developed in Austria, following Kelsens initial indications (Pizzorusso
1981, 17 ff.).
The function of Staatsgerichtsbarkeit flows from the conception of the
Constitution as a norm of the organization of relations between powers, i.e., the
various organs or bodies of the State (this function derives its particular importance
from a state which has a federal or regional structure involving the existence of
many legislators in potential competition one with the other); the function of
Verfassungsgerichtsbarkeit is derived from a conception of constitutional justice as
a means of protecting the constitutional rights of citizens against the legislator and
the decisions of the political majority.
In the post- World War II era we witness the diffusion of complete systems of
constitutional justice that contain both the functions of Staatsgerichtsbarkeit and
Verfassungsgerichtsbarkeit, in order to ensure and guarantee an enhanced legiti-
macy and effectiveness of the constitutional order. This occurred in Italy, Germany
and Austria, then in Spain, Portugal, Belgium, France and, more recently, in the
initial constitutional frameworks of the former communist countries of Central and
Eastern Europe, such as Bulgaria, Czech Republic, Hungary, Poland and Ukraine
(followed by those states arising from the collapse of the Federal Republic of
Yugoslavia). The increasing generalization of this form of constitutional justice
within Europe, centred upon a Constitutional Court, has been accompanied by a
migration or transplantation to other continents, especially to Latin and Central
America but also Africa and Asia, all countries where the Kelsenian foundation for
constitutional justice was preferred to that contained in the U.S. model (Favoreu
86 P. Carrozza

1986, 11 ff.; Pegoraro 2015, Chap. II, sect. 1; Pizzorusso 1981, 22 ff.; Rousseau
1998, Starck etal. 2007).
This diffusion of the Kelsenian model of constitutional justice was accompanied
by a further development: the recentering of attention upon the enhancement and
consolidation of the function of Verfassungsgerichtsbarkeit (the decision on the
constitutionality of statutes and acts that have to be applied in a pending judicial
determination) rather than upon the function of Staatsgerichtsbarkeit, in which the
constitutional court acts as an arbiter of conflict cases of litigation between the
institutions and bodies within the existing constitutional framework.
The possibility of this recentring of attention in the future development of con-
stitutional justice is already acknowledged in La garantie jurisdictionelle de la
Constitution (see Kelsen 1928). As he foresaw in this work, the control of the con-
stitutionality of laws undertaken by constitutional courts may have two different
objects: formal constitutionality, that is the correspondence of the statute or con-
trolled act to procedural norms contained in the Constitution; and material constitu-
tionality, namely, the correspondence of the statute or controlled act to the material
content of the various constitutional norms. It is material constitutionality which
reopens the constitution to the potential influence of politics, through general
notions of freedom, equality and justice (Kelsen 1928, 242), and renders it
susceptible to different interpretations typical of the content of the constitutional
provisions, even when long and more complex, sophisticated constitutions affirm
specific fundamental rights (such as economic, labour and welfare rights). The more
extensive and detailed the economic and welfare rights (often corresponding to
politically opposite views of life) contained in a constitution, the more difficult the
process of constitutional interpretation and the use of these constitutional provisions
as a basis to determine the unconstitutionality of a statute. This difficulty, created by
material constitutionality, is at the origin of the explicit Kelsenian opposition to the
presence and expansion of programmatic constitutional norms, which are consid-
ered as undermining and rendering incoherent the value-free concept of the consti-
tution (Mezzanotte 1984, 140 ff.).
The position of overt Kelsenian opposition has, however, been displaced through
the collaboration of constitutional courts and ordinary judges,8 in which constitu-
tional justice has come to assume a decisive role in implementing the fundamental
rights of citizens. The displacement has been conceived as a further development,
rather than a fundamental break with the Kelsenian position, by many continental
European scholars, such as Alessandro Pizzorusso, Luis Favoreu, and Francisco
Rubio Llorente. For them, constitutional justice, in the version originally theorized
by Kelsen and its subsequent evolution in many European countries, is the major
novelty of European constitutional law in the second half of the twentieth century
(see Favoreu 1990, 73 ff.; Rubio Llorente 2004, 11; Pizzorusso 1999, 40 ff.).

8
A similar process is evident, as a result of the existence and effect of European Court of Justice
(ECJ) preliminary rulings. For evaluation of the relationship between the judges of the ECJ and
judges of EU Member States concerning the provisions and application of domestic law within the
framework of European law see, Weiler 1985, 217 ff.; Martinico 2008, 48ff.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 87

In relation to this further development, German and Italian scholars (Pizzorusso


1982, 527 ff., Friesenhahn 1962, 63 ff., 67 ff.) introduced an additional classifica-
tory distinction within the juridical framework of constitutional justice when it deals
with the control of the constitutionality of legislation: the distinction between
Abstraktenormenkontrolle and Konkretenormenkontrolle. The notion of
Abstraktenormenkontrolle refers to regulation, by the Constitutional Court, whose
object is that of provisions, i.e., the law as stated by the legislator. In contrast, the
notion of Konkretenormenkontrolle refers to regulation whose object is a norm,
i.e., the law at the moment of its interpretation and application to a particular case
(in this sense, concrete). Thus, the distinction also represents different degrees of
potential politicization of constitutional decisions. For situations of
Konkretenormenkontrolle are less open to political influence than those situations of
Abstraktenormenkontrolle, when constitutional decisions are not preliminary to a
concrete case pending judicial determination, and in which there is there is a sub-
stantial risk of politicized decision-making, which would minimize the authority of
the Constitutional Court. Hence, the effectiveness and legitimacy of constitutional
justice is comparatively greater when the Constitutional Court acts to resolve a con-
crete controversy. These considerations, however, demonstrate the continued impor-
tance and pertinence of Kelsens theories of constitutional justice; and, also, they
explain why continental European scholars often refer to a definition of the European
model of constitutional justice as the Kelsenian model (see, for example, Favoreu
1986, 11, Pizzorusso 1981, 23).

5.3.2.2 The Gradualist Theory oftheSources ofLaw: TheStufenbau

The second aspect of the continued relevance of Kelsenian legal theory for contem-
porary constitutionalism concerns the theory of the Stufenbau, the systematic con-
struction of a dynamic hierarchy of legal norms from the sources of law. The notion
of the Stufenbau is an avowedly theoretical concept and, thus, more abstract than the
Kelsenian concept of constitutional justice. The theory of the Stufenbau is itself a
foundational element of Kelsenian legal science and predicated upon a presupposi-
tion of the essential logical coherence and unity of a system of positive law. The
influence of this notion upon contemporary constitutionalism has been, as a result,
more indirect and reflected in the general orientation of scholars legal thinking
rather than in the indication and formulation of concrete solutions. From this,
derives the frequent characterization of Kelsenian legal science in particular, by
those legal scholars orientated by the alternative tradition of legal realism as the
so-called normativist approach distinguished by an excessive, empty formalism
(see, for example, Capograssi 1952; Castignone 2008; Falzea 2008, 274 ff.; Schmitt
1933, 270 ff.; Viola 1990, 684 ff.).
The Kelsenian theory of the Stufenbau, which is an appropriation of the original
theory in the work of Adolf Merkl (see Borowski 2005, Paulson 2013), is provided
with its most comprehensive elaboration in three works: the first, the Reine
Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik (1934),
88 P. Carrozza

p ublished after the collapse of the First Austrian Republics constitutional frame-
work, during Kelsens exile, then, after his encounter with American law, the
General Theory of Law and State (1945) and, finally, the revised second edition of
the Reine Rechtslehre (1960).
The notion of the Stufenbau arises from the conception of the legal system of
positive law as a system of norms: there is a coherent order in the relationship
between the different sources and this order is conferred by the notion of the
Stufenbau which allows the arrangement of these sources in a hierarchical system.
The hierarchy, commencing from the logical presupposition of a final, superior
norm (Grundnorm), is the condition for the conferral of validity upon each of the
subsequent inferior, but increasingly concrete normative orders: a top-down
approach from the most abstract, fundamental norm (Grundnorm) to the constitu-
tion, then to legislative norms or statute law, then to executive regulations and gen-
eral administrative acts and, finally, to the most concrete level of judicial or
administrative decision-making.
The Stufenbau theory is fundamental to the comprehension and description of
the functioning of European federal and regional legal system, as it is not based on
a rigid separation of competences as in American federalism: the constitution is the
very condition of validity of all primary norms (both of the central state and of the
decentralized entities, whatever their designation, e.g., Lnder, Regions, member
states, etc.), since it has the Kompetenz-Kompetenz (the capacity to determine the
extent of its own competence), thereby establishing the condition of validity of
enacted legislation (generally through the specific enumeration of the matters which
are entrusted to the legislative powers of the central state or decentralized entities,
or to both) (see Carrozza 1988, 2014).
The theory of the Stufenbau enables the understanding of the operation of the
system of positive law composed of a number of sources of law, especially in a
multilevel legal system characterized by a rigid constitution. During the nineteenth
century, when constitutions were characterized by a general flexibility and lack of
rigidity, the interpretation of statute law, together with the resolution of the contra-
dictions among different sources, was entrusted to two main principles: the tempo-
ral principle (the criterion of the prevalence of the will of the most recent legislator)
and the criterion of specialty (that is an exception to the former: special statutes are
not abrogated by the subsequent succession of general statutes), with their corollar-
ies (the central principle being that of the prohibition of ex post-facto laws). The
hierarchy principle was of secondary importance, and it was relevant only in the
case of contrast between a statute and a regulation, with primacy accorded to the
former in recognition of the parliamentary form of government.
However, in multilevel legal systems, based on written and rigid constitutions,
the two preceding criteria of interpretation are no longer sufficient because the rela-
tionship between the sources of law is dominated by principles of hierarchy and
competence. In order to explain the multilevel government and organization of pow-
ers, typical of federal and regional states, or the phenomenon of the European
Union, the Kelsenian notion of the Stufenbau is essential to describe these relation-
ships of the sources of law, and to resolve the apparent contradictions and contrasts
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 89

in the application and interpretation of the law: this is the general, indirect legacy of
Kelsens thought.
The general, indirect legacy of the Kelsenian notion of the Stufenbau is also
apparent in the rarity of detailed quotation from Kelsens work in contemporary
handbooks of consitutional law. In relation to the Stufenbau, its continued presence
is one of general orientation and citation rather than detailed textual analysis and
quotation (see, for example, Ignacio de Otto 1988; Pizzorusso 2011; Crisafulli
1978. See, also, in relation to the comparative survey of the sources of law,
Pizzorusso 1988: Kelsen is still the most cited author).
The presence of the Kelsenian theory of the sources of positive law in contempo-
rary constitutional law is also to be found in the famous debates which revealed
important divergences and disagreements amongst Spanish and French scholars. An
example is the pamphlet of Eduardo Garca de Enterra, La Constitucin como
norma y el Tribunal Constitucional (Garca de Enterra 1981), which contains a
series of arguments against his Spanish colleagues who, after the promulgation of
the 1978 Constitution, continued to refer to constitutional law as derecho politico,
maintaining both the continuity with the old disciplinary designation of Francoist
era and a prevalent politological approach to the study of constitutional law. Another
example is the struggle of Luis Favoreu for a Nouveau Droit constitutionnel, against
the so-called duvergerisme, designating the approach of the French political scien-
tist Maurice Duverger (see, Duverger 1951), and the revolution in the study of pub-
lic law introduced in France, in 1954 (dcret 27 March 1954, n. 343), which sought
to merge political science and constitutional law in the new university course of
Institutions de Droit public et de la Science politique (Favoreu 1990, 73 ff.).

5.4 Kelsen andPost-modern Constitutionalism

The preceding overview has indicated the significant presence and relevance of the
Kelsenian position in the constitutional thought of post-World War II continental
Europe which extends far beyond the borders of German-speaking countries. The
further question which remains to be clarified is the extent to which the Kelsenian
position remains a conceptual resource of continued relevance for the future. The
question becomes that of the extent to which Kelsens work continues to provide a
set of conceptual instruments with which to confront the crisis of contemporary
constitutionalism, which is itself strictly connected to the crisis of state sovereignty
and an autonomous domain of state or domestic law, resulting from the emergence
and increasing proliferation of supra-national and global law.
90 P. Carrozza

5.4.1 T
 he Importance ofKelsens Thought fortheLegal
Understanding ofMulti-level Government (Monism v.
Dualism)

The continued utility of the Kelsenian approach (and, in particular, of the Stufenbau
theory) has been an integral element of my work in order to explain that what
appears to many international lawyers as a typical matter of international law (the
European Unions secondary norms and their relations with the legal orders of
member states) as one which could be better explained as a problem of constitu-
tional law (Carrozza 2006, 351). If one considers the European Union as a complex
and composite legal system and the sources of law (both European and domestic) as
sources of a unique legal system, Kelsens Stufenbau theory offers a convincing
argument to resolve the question of the normative coherence and potential conflict
or interference between European law and Member states law: the European Union
legal system is not superior to Member states legal systems but has supremacy. The
separation among legal systems is defined by a separation of competences con-
tained in the Treaties. Thus, in the event that the European Law is competent, it is
valid and it has supremacy over the non-competent and, therefore, inconsistent law
of the Member states.
It was the European Court of Justice which created, and continues to repeat a
mistaken legal definition when it declared as inconsistent with European law any
domestic law in potential conflict with the Treaties and applies to European law to
the particular case. It would be better for it not to speak about supremacy but, rather,
about a lack of competence of the legislators of Member states, due to the fact that
Treaties have accorded competence in the matter to European law and the Member
states have provided consent that (valid, competent) European law has direct effect
in their respective legal orders, thus prevailing over their domestic law (regardless
of whether this law is enacted through the form of a directive or a regulation).
It is a question of competence, not of hierarchy (using Kelsens categories, see
Kelsen 1923, 21 ff.); hence, it becomes a question of constitutional law and not of
international law. The adoption of the criteria of competence and of interpretation of
the relationship between sources of law enables the unproblematic comprehension
of the presence, within the European Union, of the following:
Three orders of legislators: the European legislators (Council, Parliament); the
member states legislators, the legislators of the decentralized entities of each
member state (this depends on the form of state of each country, according to the
respective constitution). The competence of each one of these legislators is
defined by the rules on competence established by the European Treaties and the
Constitutions of Member states.
Four or five governments: the European government (the Commission); the
Member states national governments, the governments of Lnder, regions and
other decentralized entities; and the governments of local authorities (whose des-
ignation is dependent the constitutions of member states).
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 91

Various levels and orders of administrative bodies: firstly, the European Unions
(even if European law is executed in the form of administrative acts by the
administration of the Member states: the Kelsenian question of Bundesexecution
(see, Kelsen 1927); and, secondly, two or three levels of administrative organiza-
tions in each state, depending upon their degree of decentralization.
Two orders of judicial power: that of the European Union and each Member
state.
These orders are integrated when the subject matter of the controversy is the
application of European law as a result of the operation of the device of the prelimi-
nary ruling. In relation to these considerations, it is a purely academic and possibly
futile debate to affirm state sovereignty since the Constitution of each member state
delegates powers to the European Union, through the adhesion to the Treaties: the
question of potential conflict and interference between European law and Member
states law cannot be resolved as a problem of international law and of state sover-
eignty, because it is entrusted to the judges of each Member state.
Beyond this question, there arises the further one of the nature of a single, legal
order, as suggested by Kelsenian monism: this has elicited a significant and varied
response (Martinico 2013, 19 ff.). In relation to these existing responses, it is pos-
sible to consider introducing the notion of a Federalizing process: a return to, and
appropriation of, the notion of Carl J.Friedrich which itself originates from a reflec-
tion upon U.S. federalism, orientated to institutional dynamics rather than a static
constitutionalism (Friedrich 1950, 274 ff. (English original 1937)).This is, of course,
to have recourse to notions of political science and to acknowledge that the defini-
tions of a political scientist are, in certain instances, more useful than those of schol-
ars of constitutional and international law. A process of gradual integration, such as
the European one, is correctly defined as a Federalizing the notion of process, since
it cannot be classified with the classic conceptual figures of constitutional and inter-
national law, which is based on a state-centred approach to the dimensions of politi-
cal and legal power (for Friedrichs later application of this concept to European
integration, see Friedrich 1962, 562 ff.).
The adoption of the Kelsenian position, which insists upon monism in interna-
tional law and its determination of the approach to the relations among the sources
of law, furnishes the theoretical interpretation of the results of this process of nor-
mative integration as a unique legal order. This, in turn, constitutes the theory as the
description of the presuppositions (legal cognition) of domestic judges, who are
obliged, when dealing with a case concerning the application of European law, to
ensure that European law necessarily prevails over any domestic law that is incon-
sistent with it.
92 P. Carrozza

5.4.2 T
 he Globalization ofConstitutionalism: Is anOpen-
Ended Constitutionalism Possible?

The increasing prevalence of the process of globalization and its associated political
and legal pluralism constitutes an equally important manner in which the Kelsenian
position retains its continued contemporary pertinence. For, the value-free Kelsenian
conception of constitutionalism offers valuable insights into the legal pluralism
which has emerged from the dynamics of globalization (Carrozza 2007, 184 ff.). In
particular, the crisis of constitutionalism resulting from globalization and the devel-
opment of supra-national law, displaces the conventional explanatory framework of
a concept of constitutionalism based on the legal and political dimensions of the
state and its absolute sovereignty.
The analytical framework is constructed in three stages. First, that a focus upon
domestic constitutional reform an attempt that many countries are pursuing in
order to solve the constitutional crisis is useless and unnecessary, since the great
crisis of our societies and economies in the new era of globalization does not have
an exclusively national (and, thus, constitutional) dimension but a necessarily a
global or supra-national dimension (see Dobner and Loughlin 2010).
Rather, the focus should be upon the collaborative development and implementa-
tion of long-term and coordinated policies among states (for example, the introduc-
tion of the Euro, the inclusion of Eastern countries in the European Union, etc.). The
project of a reform, at the level of the national constitution, retains its utility only if
it becomes the expression of progressive achievements, namely, as a form of con-
solidation, the comprehensive representation of a processes of transformation
already realized by other (ordinary, non-constitutional) means.
The strictly Kelsenian response would be to consider a new instance of the first
stage of concretization of the fundamental or basic norm (Grundnorm): a new con-
stitutional (but not state) order. Yet, the question which immediately arises is that of
what exactly can be, at present, a new fundamental norm at the state level? For,
only a revolution, or the earthquake generated by World War (for democratic constitutions),
or a coup dtat (for authoritarian constitutions) or the proletarian revolution (for socialist
constitutions) could justify the rise of constituent power and, consequently, of a constituent
assembly [and of a new constitutional order; so that] it is no surprise that the most
recent seismic movement in European constitutionalism was precipitated by the demise of
communist regimes in East Europe after the fall of the Berlin Wall. (Carrozza 2007, 174).

The second stage involves the recognition that the crisis of the classical model of
western constitutionalism reveals itself in the form of the crisis of value-oriented
constitutions, with the consequent crisis of judicial review and constitutional adju-
dication. This is evident, in particular, in long and value-orientated constitutions,
in which these values respond to conflicting political programmes, and the legisla-
tion cannot be configured as a mere technical implementation or application of the
constitution. Here, the pertinence of an element of the Kelsenian position re-emerges
in its designation of the essentially problematic character of value-oriented and pro-
grammatic constitutional norms.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 93

It is the crisis of constitutional norms magis ut valeant, as a system of effective


norms directly binding political actors (the maxim is that of Dogliani 1982, 65 ff.):
at present, the value-oriented constitutions lack a clear framework of values and
principles translated into a hierarchically ordered system of positive provisions
upon which courts (and political actors) can base their decisions. In order to over-
come these difficulties, courts are forced to ground their decisions either on a bal-
ancing test (whose validity is restricted to a single case and cannot confer a more
comprehensive or general validity) or on politically neutral constitutional princi-
ples, such as the rationality of means (reasonableness, proportionality,
Verhltnismigkeit) (Zagrebelsky 1992, 147 ff.; Dogliani 1982, 75 ff.; Mezzanotte
1984, 140 ff.).
The combination of these two stages produces an understanding of contempo-
rary constitutionalism as marked by an essential openness. From this emerges the
final stage, the delineation of this phenomenon of openness of contemporary consti-
tutionalism and, in particular, the question of whether it consists in the flexibility of
constitutional norms and their ability to be used as open provisions, which requires
not an implementation or application, but a continuous integration through the polit-
ical process. Is this, then, the triumph of Kelsenian relativism, of Kelsens value-
free idea of the constitution? Or, is this openness one which requires a constitution
that adjusts and modifies itself, following Schumpeter (1942, chap. 22), and Dahl
(1989, 201 ff.), the theorists of the procedural democracy, merely through an elec-
toral procedure in order to elect the governors?
The response to this dilemma cannot be simple and immediate, but requires con-
sidered reflection. For some Italian scholars, such as Zagrebelsky (1992) and
Spadaro (1994), the answer is not constitutional relativism and value-free constitu-
tions but, rather, the diffusion of a continuous aspiration to live together in order to
facilitate the cohabitation of principles and values which, if conceived in an absolut-
ist way, would be irreconcilable (Zagrebelskys mild law); or, alternatively, a re-
awakening of the political system to a superior order of justice and equality (Spadaro
1994, 318 ff.).
This response, which is beyond the reaffirmation or rearticulation of relativism,
represents the idea of a weak constitutionalism; and with it, the potential indication
of a broader, fundamental change: the tradition of modern western constitutionalism
has been comprehensively relinquished. In relation to the increasing marginaliza-
tion of this tradition, it is unnecessary to regret the current position of modern con-
stitutionalism or to undertake its transformation into these forms of weak
constitutionalism. Rather, it requires a far more significant opening of our constitu-
tionalism to others, in particular, when these others have a very different concep-
tion of life, cohabitation and a legal order. Thus, an overtly expansive, open
constitutionalism encompasses the totality of unwritten norms which furnish the
conditions for dialogue among different cultures and perspectives in a globalized
society: constitutional norms are thereby redefined as those which enable both rec-
ognition of the other and of her/his values and principles (Palombella 2012, 151 ff.).
It is, therefore, dialogue, not relativism (whether Kelsenian or post-modern)
which is the path to the conceptual understanding and analysis of the contemporary
94 P. Carrozza

openness of western constitutionalism. The notion of dialogue contains the ele-


ments of modification or renunciation of existing positions and concessions to oth-
ers. It is a process of integration based on sharing knowledge and acceptance of
others, not of assimilation. In this, it marks the explicit rejection of all forms of
coercion or forcible imposition, and indicates its break with the history of encoun-
ters with other cultures originating in the European discovery of the New World,
which Europeans considered only as an object of conquest and subjugation (Todorov
1994, 225 ff.). The dialogic basis of open constitutionalism is possible since, in a
constitutionalism that becomes increasingly less national and more supra-national
or, rather, transnational and intercultural or global, the most important juridical
event is the proliferation of charters of human and fundamental rights, many of
which are accompanied by specifically designated supra-national or international
courts.
The dialogue among international, supra-national and domestic Courts is gradu-
ally replacing the lack of a global political authority capable of creating an effective
political and legal order (if it will ever assume a concrete existence) common to
every people, since this dialogue is directed to the elaboration and development of
a new global constitutional law based upon the presumption of equality of citizens
rights.
This is a development whose evolution is still in progress, and it is impossible to
predict either when it will be concluded or the final result at the conclusion of the
process: but the indications are that it will be very different from Kelsens concep-
tion of a legal order and constitutional justice, strictly connected with the state-
centred dimension of the political and legal order, and also very far from the monistic
idea of the primacy of international law that Kelsen sought to articulate in his later
work (see Kelsen 1944, Part I; 1945, 332367; 1948a). This is, however, not to sub-
scribe to the increasing redundancy of the Kelsenian position, but to adopt an inter-
pretative stance towards Kelsens work which is one of selective appropriation.
In relation to the crisis of domestic, state-centred constitutionalism this selective
appropriation requires that one relinquish the return to a value-free constitutional-
ism, but also adherence to the subsequent theory of weak constitutionalism which
permits the openness of our societies to others without requiring the maintenance
of a political and legal order based upon the belief, or hope, in a superior and com-
mon idea of justice.
A new open constitutionalism, a global rule of law, is, instead, emerging through
a process of dialogue between very different legal systems and their courts and
through the recognition of the rights of the others: it consists of all the norms that
allow the recognition of the others in order to gradually construct a common order
acceptable to all people. If this process of patient and gradual construction of com-
mon constitutional values requires compromise and the concomitant reciprocal
renunciation or modification of positions and perspectives, then we will continue to
be much more Kelsenian than we believe we are.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 95

References

Barile, P. 1951. La Costituzione come norma giuridica. Florence: Barbra.


Blachr, P. 2001. Contrle de constitutionalit et volont gnrale. Paris: Press Universitaires de
France.
Bongiovanni, G. 1998. Reine Rechtslehre e dottrina giuridica dello Stato. H. Kelsen e la costituzi-
one austriaca del 1920. Milano: Giuffr.
Borowski, Martin. 2005. Die Lehre vom Stufenbau des Rechts nach Adolf Julius Merkl. In Hans
Kelsen Staatsrechtler und Rechtsphilosoph des 20 Jahrhunderts, edited by S.L. Paulson and
M. Stolleis, 122159. Tbingen: Mohr-Siebeck.
Calamandrei, P. 1995. Questa nostra costituzione, 319. Milano: Bompiani. (first published 1955).
Capograssi, G. 1952. Impressioni su Kelsen tradotto. Rivista trimestrale di diritto pubblico 4:
767810.
Cappelletti, M. 1973. Il controllo giudiziario di costituzionalit delle leggi nel diritto comparato.
Milan: Giuffr.
Cappelletti, M., and W. Cohen. 1979. Comparative Constitutional Law. Cases and Materials.
Indianapolis: Bobbs-Merrill.
Carrozza, P. 1988. Central Law and Peripheral Law. In Law Making. A Comparative Survey, edited
by A. Pizzorusso, 238274. Berlin: Springer.
. 2006. El multilevel constitutionalism y el sistema de Fuentes del derecho. Revista espa-
ola de Derecho Europeo 19: 341366.
. 2007. Constitutionalisms post-modern opening. In The Paradox of Constitutionalism,
edited by M. Loughlin and N. Walker, 169187. Oxford: Oxford University Press.
. 2014. I rapporti centro periferia: regionalismi, federalismi e autonomie. In Dritto costi-
tuzionale comparato, edited by P. Carrozza, A. Di Giovine and G. F. Ferrari, 894951. Rome-
Bari: Laterza.
Cassese, S. 1971. Cultura e politica del diritto amministrativo. Bologna: Il Mulino.
Castignone, S. 2008. Il grande mistero di Hans Kelsen. Validit ed efficacia nel formalismo
kelseniano e nel realismo scandinavo. Materiali per una storia della cultura giuridica 2:
347356.
Coutu, M. 2012. With Hugo Sinzheimer and Max Weber in Mind: The Current Crisis and the
Future of Labour Law. Comparative Labour Law and Policy Journal 34: 605626.
Crisafulli, V. 1978. Lezioni di diritto costituzionale. Lordinamento costituzionale italiano. Le fonti
normative. La Corte costituzionale. Padua: Cedam.
Cruz Villalon, P. 1987. La formacin del sistema Europeo de control de constitucionalidad (1918
1939). Madrid: Centro de Estudios Constitucionales.
Dahl, R., 1989. Democracy and its Critics. Italian transl. (1990) La democrazia e i suoi critici.
Rome: Editori Riuniti.
David, R. 1973. I grandi sistemi giuridici contemporanei. Padua: Cedam.
De Otto, I. 1988. Derecho constitucional. Sistema de Fuentes. Barcelona: Ariel.
Dobner, P., and M. Loughlin, eds. 2010. The Twilight of Constitutionalism? Oxford: Oxford
University Press.
Dogliani, M. 1982. Interpretazioni della Costituzione. Milan: Angeli.
Duverger, M. 1951. Les partis politiques. Paris: A. Colin.
Eisenmann, C. 1986. La justice constitutionelle et la Haute Cour Constitutionelle dAutriche.
Paris: Economica.
Falzea, A. 2008. Introduzione alle scienze giuridiche: il concetto del diritto. Milan: Giuffr.
Favoreu, L. 1986. Les cours constitutionnelles. Paris: PUF.
. 1990. Le droit constitutionnel, droit de la Constitution et constitution du droit. Revue
franaise de droit constitutionnel I: 7199.
96 P. Carrozza

Friedrich, Carl J. 1937. Constitutional Government and Politics. Italian transl. (1950) Governo
costituzionale e democrazia. Vicenza: Neri Pozza.
. 1962. Federal Constitutional Theory and Emergent Proposal. In Federalism. Mature and
Emergent, edited by A.W. Machmahon, 510532. New York: Russell & Russell. (reprint of
1955 edition).
Friesenhahn, E. 1962. Die Verfassungsgerichtbarkeit in der Bundesrepublik Deutschland. Kln:
Heymanns. It. transl. 1973: La giurisdizione costituzionale della repubblica Federale Tedesca.
Milan: Giuffr.
Garca de Enterra, E. 1981. La Constitucin como norma y el Tribunal Constitucional. Madrid:
Editorial Civitas.
Institut International de Droit Public. 1929. Discussion du rapport de M. Kelsen sur La garantie
jurisdictionnelle de la Constitution (la justice constitutionnelle). In Annuaire de lInstitut
Internationale de Droit Public, 192201.
Kelsen, Hans. 1911. Hauptprobleme der Staatsrechtslehere entwickelt aus der Lehre vom
Rechtssatze. Tbingen: J.C.B. Mohr.
. 1920. Vom Wesen und Wert der Demokratie. Tbingen: J.C.B. Mohr.
. 1923. Verfassungs und Verwaltungsgerichtsbarkeit im Dienste des Bundesstates, nach der
neuen sterreichischen Bundersverfassung vom 1. Oktober 1920. Zeischriften fr sch- weizeri-
schen Recht. XLII, pp. 173217. It. Transl. Le giurisdizioni costituzionale e amminis- trativa al
servizio dello stato federale secondo la nuova costituzione austriaca del 1 ottobre 1920. In H.
Kelsen, La giustizia costituzionale, 545. Milan: Giuffr.
. 1924. Die Lehre von den drei Gewalten oder Funktionen des Staates. Archiv fr Rechts
und Wirtschaftsphilosophie 17: 374408.
. 1925. Das Problem des parlamentarismus. Vienna/Leipzig: Braumller.
. 1927. Die Bundesexekution. Ein Beitrag zur Theorie und Praxis des Bundesstaates, unter
besonderer Bercksichtigung der deutschen Reichs- und der sterreichischen Bundes-
Verfassung. In Festgabe fr Fritz Fleiner zum 60.Geburtstag, edited by Z. Giacometti and D.
Schindler, 127187. Tbingen: J.C.B. Mohr.
. 1928. La garantie jurisdictionnelle de la Constitution (la justice constitutionnelle). Revue
du Droit publique et de la Science politique XXXV: 197257.
. 1929a. Der Drang zur Verfassungsreform. Neue Freie Presse, October 6th, 1929.
. 1929b. Die Grundzge der Verfasssungsreform (I). Neue Freie Presse, October 20th,
1929.
. 1929c. Die Grundzge der Verfasssungsreform (II). Neue Freie Presse, October 30th,
1929.
. 1930. Der Staat als Integration. Eine Prinzipielle Auseinandersetzung. Vienna: Springer.
. 1931. Wer soll der Hter der Verfassung sein? Die Justiz VI: 576628.
. 1933. La dottrina pura del diritto. Metodo e concetti fondamentali. Archivio Giuridico
XXVI: 121171.
. 1934. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Wien:
Franz Deuticke Verlag.
. 1942. Judicial review of legislation. A comparative study of the Austrian and the American
Constitution. Journal of Politics 4 (2): 183200.
. 1944. Peace Through Law. Chapel Hill: The University of North Carolina Press.
. 1945. General Theory of Law and State (Cambridge: Harward Univ. Press). It. transl.
(1952): Teoria generale del diritto e dello stato. Milano: Comunit.
. 1948a. Law and Peace in international relations. Cambridge: Harvard University Press.
. 1948b. Absolutism and Relativism in Philosophy and Politics. American Political Science
Review 42 (5): 906914.
. 1949. The Natural-Law Doctrine before the Tribunal of Science. Western Political
Quarterly 2 (4): 481513.
. 1955. Foundations of Democracy. Ethics 66 (1): 1101.
. 1957. What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected
Essays. Berkeley Los Angeles: University of California Press.
5 Kelsen andContemporary Constitutionalism: TheContinued Presence ofKelsenian 97

Lambert, E. 1921. Le gouvernement des juges et la lutte contre la lgislation sociale aux tats-
Unis. Lexprience amricaine du contrle judiciaire de la constitutionnalit des lois. Paris:
Librairie Gnral de Droit et de Jurisprudence.
Martinico, G. 2008. Lintegrazione silente. La funzione interpretativa della Corte di Giustizia e il
diritto costituzionale europeo. Naples: Jovene.
. 2013. The Tangled Complexity of the UE Constitutional Process. London: Routledge.
Mezzanotte, C. 1984. Corte costituzionale e legittimazione politica. Rome: Tipografia Veneziana.
Mock, E. 1970. Rechtsphilosophie und Rechtsphilosophen an der Wiener Juristenfacultt.
sterrreichische Zeitschrift fr ffentliches Recht 20: 373399.
hlinger, T. 1983. Verfassungsgerichtsbarkeit und parlamentarische Demokratie. In Im Dienste an
Staat und Recht. Festschrift fr Erwin Melichar, edited by H. Schffer, 125148. Vienna: Manz
Verlag.
. 2003. The Genesis of the Austrian Model of Constitutional Review of Legislation. Ratio
Juris 16 (2): 206222.
Olechowski, T. 2009. Der Beitrag Hans Kelsens zur sterreichischen Bundesverfassung. In Hans
Kelsen: Leben Werk Wirksamkeit (Schriftenreihe des Hans Kelsen-Instituts, Bd. 32), edited
by R. Walter, W. Ogris, Werner and T. Olechowski, 211230. Vienna: Manz.
Palombella, G. 2012. E possibile una legalit globale? Il Rule of Law e la governance del mondo.
Bologna: Il Mulino.
Patrono, M. 1987. Presentazione. In Il duplice volto del Diritto. Il sistema keleseniano e altri saggi,
A. Merkl, VII-LX. Giuffr: Milan.
Paulson, S.L. 2000. On Hans Kelsens Role in the Formation of the Austrian Constitution and his
Defense of Constitutional Review. In The Reasonable as Rational? Festschrift for Aulis Aarnio,
385395. Berlin: Duncker & Humblot.
. 2013. How Merkls Stufenbaulehre Informs Kelsens Concept of Law. Revus 21: 2945.
Pegoraro, L. 2015. Giustizia costituzionale comparata. Dai modelli ai sistemi. Turin: Giappichelli.
Pizzorusso, A. 1981. Sub Art. 134 Cost. In Commentario della Costituzione a cura di G. Branca e
A. Pizzorusso. Garanzie costituzionali, 1143. Bologna-Rome: Zanichelli.
. 1982. I sistemi di giustizia costituzionale: dai modelli alla prassi. Quaderni costi- tuzion-
ali: 521533.
., ed. 1988. Law in the making. A comparative survey. Berlin: Springer.
. 1999. La costituzione ferita. Laterza: Rome- Bari.
. 2011. Delle fonti del diritto. Commentario del Codice Civile Scialoja Branca. Bologna
Rome: Zanichelli Il Foro Italiano.
Rousseau, D. 1998. La justice constitutionnelle en Europe. Paris: Montchrestien.
Rubio Llorente, F. 2004. El Tribunal Constitucional. Revista espaola de derecho constitucional
71: 1133.
Salzborn, S., ed. 2009. Kritische Theorie des Staates: Staat und Recht bei Franz L. Neumann.
Baden-Baden: Nomos.
Scheuerman, W. 1997. Between the Norm and the Exception: The Frankfurt School and the Rule
of Law. Cambridge: MIT Press.
Schmitt, C. 1929. Der Hter der Verfassung. Archiv fr ffentliches Recht 16 (March 1929):
161237.
. 1933. Staat, Bewegung, Volk. Die Dreigliederung der politischen Einheit. It. transl. Un
giurista davanti a se stesso. Saggi e interviste a cura di Giorgio Agamben, Vicenza: Neri Pozza.
253312.
Schmitz, G. 1981. Die Vorentwrfe Hans Kelsens fr die sterreichische Bundesverfassung
(Schriftenreihe des Hans Kelsen-Instituts, Bd. 6), Vienna: Mainz.
. 2003. The Constitutional Court of the Republic of Austria 19181920. Ratio Juris 16 (2):
240265.
Schumpeter, J.A. 1942. Capitalism, Socialism and Democracy. London: Allen & Unwin.
Smend, R. 1928. Verfassung und Verfassungsrecht. Munich: Duncker & Humblot.
98 P. Carrozza

Spadaro, A. 1994. Contributo per una teoria della costituzione. I. Tra democrazia relativista e
assolutismo etico. Milan: Giuffr.
Starck, C., A. Weber, and O. Luchterhandt, eds. 2007. Verfassungsgerichtsbarkeit in Mittel- und
Osteuropa. Baden Baden: Nomos.
Stein, E. 1991. Un nuovo diritto per lEuropa. Uno sguardo doltre oceano. Milan: Giuffr.
. 2000. Thoughts from a Bridge: A Retrospective of Writings on New Europe and American
Federalism. Ann Arbor: University of Michigan Press.
Stolleis, M. 2003. Judicial Review, Administrative Review, and Constitutional Review in the
Weimar Republic. Ratio Juris 16 (2): 266280.
Todorov, T. 1994. La conquista dellAmerica. Il problema dellaltro. Turin: Einaudi.
Treves, R. 1967. Prefazione. In Lineamenti di dottrina pura del diritto, edited by Hans Kelsen,
1121. Turin: Einaudi.
Tribe, L.H. 1978. American Constitutional Law. Mineola: The Foundation Press.
Troper, M. 1980. La separation des pouvoirs et lhistoire constitutionnelle. Paris: Librairie Gnral
de Droit et de Jurisprudence.
. 1995. Kelsen et le contrle de constitutionalit. In Le Droit et Le Politique: Autour de Max
Weber, Hans Kelsen, Carl Schmitt, edited by C.-M. Herrera, 157182. Paris: Harmattan.
van Ooyen, R. 2014. Rechts- und Verfassungspolitologie bei Ernst Fraenkel und Otto Kirchheimer.
Kritik und Rezeption des Rechtspositivismus von Hans Kelsen und der politischen Freund-
Feind-Theologie von Carl Schmitt. Tyska: Verlag F. Verwaltungswisse.
Vardaro, G. 1982. Otto Kahn-Freund e lemigrazione dei giuslavoristi weimariani. Politica del
diritto 1982: 77100.
Viola, F. 1990. La teoria della separazione tra diritto e morale. In Studi in memoria di Giovanni
Tarello, vol. II, 667705. Milan: Giuff.
Weiler, J.H.H. 1985. Il sistema comunitario europeo. Bologna: Il Mulino.
Zagrebelsky, G. 1977. La giustizia costituzionale. Bologna: Il Mulino.
. 1992. Il diritto mite. Legge, diritti, giustizia. Turin: Einaudi.
Zweigert, K., and H. Ktz. 1998. Introduzione al Diritto comparato. Milan: Giuffr.
Chapter 6
Constitutionalism andValue-Free Method:
Kelsens Legacy inContemporary Challenges

ValeriaGiordano

Abstract The challenge of constitutionalization arises, first of all, from the positiv-
ization of moral principles in law, elaborated by an Enlightened rational jusnatural-
ism. From its inception, according to some ethical perspectives, a crisis of the
artificial character of the law occurs with a concomitant dissolution of the Kelsenian
legal science of positive law, whose formal paradigm is rigidly centered on proce-
dures of authorization and competence. To this outmoded Kelsenian model are
opposed theories of moral justification that invoke forms of foundational rationality
and, thereby, shift the focus and emphasis from dynamic-voluntarist to static ele-
ments. It is believed that the Constitution has filled up the legal space, redrawing
within the boundaries of the law the classic dialectical tension of natural law/posi-
tive law, and circumscribing, through the requirement of justification, the previ-
ously irreducible Kelsenian space of interpretative discretion. However, is
constitutionalization the irreversible crisis of legal positivism and the abandonment
of the methodological disenchantment of Kelsen legal science? In this chapter, the
predominant conception of constitutionalization is placed into question by analyz-
ing different strategies for the composition of legal agreements, and reemphasizing
the indispensability of some central aspects of the Kelsenian tradition. The attempts
to refound forms of moral objectivity, situated between procedural strategies and
comprehensive ethics, contain the underlying risk of a moralization of law: a risk
which can only reinforce the disorientation of contemporary jurisprudence through
its preceding rejection of a disenchanted and sober reaffirmation of the rationale of
legal positivism. Only the latter is able to understand the tension between law and
the multiplicity of ethical viewpoints existing in our fragmented, contemporary
societies, without claiming to lead them back to a universal moral point of view with
a transcendental foundation.

V. Giordano (*)
Department of Legal Science, University of Salerno, Salerno, Italy
e-mail: vgiordano@unisa.it

Springer International Publishing AG 2017 99


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_6
100 V. Giordano

6.1 The Kelsenian Lesson ofModern Rationality

The dialectical relationship between jusnaturalism and juspositivism receives, in


Kelsens theoretical reflection, a very particular account; one that highlights an
unbridgeable rift between Idealistic Dualism which derives the legal sphere from
a transcendental order unavailable to normative knowledge and a Realistic and
anti-ideological Monism, which recognises, from a legal standpoint, only the for-
mal rationality of an artificial construct.1
The pendulum-like movement of classical jusnaturalistic reflection, which effec-
tively regulates the contraposition of natural and positive law, and that connects the
ontological question to a regulative idea of the law, is revealed, by Kelsen, to entail
the difficulties of grasping the law as tension, control and orientation due to the
presumption of a pacified order that has already been achieved.
This conceptual tangle, that Kelsens method is able to untie with the instrumen-
tal use of legal technique (that is, on its own account, bound to bring about the
dangers of a reductionist drift through its inescapable connection with the element
of force), binds the issue of the legitimacy of the law to the theme of effectuality,
that is the litmus test for any formal construct. All this occurs, through an analysis
which is detached from the substantialist claims and ideological dogmas stemming
from jusnaturalism, and is elaborated on the basis of a scientific approach to the
demystification of the dynamic processes of normative creation.2
If every ideology has its roots in the will, and not in knowledge, it is essential that
science preserves that immanent tendency to find its object, to lay the ground for the
law, refusing to condemn or justify it, under penalty of an ideological legitimation
of its content and the concealment of the dynamics of power underlying the legal
decision.

1
See Kelsen 1928a, for the initial formulation of this position.
2
As Kelsen states in the Reine Rechtslehre of 1934, [t]he Pure Theory of Law is a theory of posi-
tive law, of positive law as such, and not of any special system of law. It is general legal theory, not
an interpretation of particular national or international legal norms. As theory, the Pure Theory of
Law aims solely at cognition of its subject-matter, its object. It attempts to answer the questions of
what law is and how the law is made, not the questions of what the law ought to be or how the law
ought to be made. The Pure Theory of Law is legal science, not legal policy. It characterizes itself
as a pure theory because it aims at cognition focused on the law alone, and because it aims to
eliminate from this cognition everything not belonging to the object of cognition, precisely speci-
fied as law. That is, the Pure Theory aims to free legal science of all foreign elements (Kelsen
2002, 6) [La dottrina pura del diritto una teoria del diritto positivo. Del diritto positivo semplice-
mente, non di un particolare ordinamento giuridico. E teoria generale del diritto, non interpretazi-
one di norme giuridiche particolari, statali o internazionali. Essa, come teoria, vuol conoscere
esclusivamente il suo oggetto. Essa cerca di rispondere alla domanda: che cosa e come il diritto,
non per alla domanda: come esso deve essere o deve essere costituito. Essa scienza del diritto,
non gi politica del diritto. Se viene indicata come dottrina pura del diritto, ci accade perch vor-
rebbe assicurare una conoscenza rivolta soltanto al diritto, e perch vorrebbe eliminare da tale
conoscenza tutto ci che non appartiene al suo oggetto esattamente determinato come diritto. Essa
vuole liberare cio la scienza del diritto da tutti gli elementi che le sono estranei (Kelsen 1952/67,
47).
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 101

The radical elimination of all sociological and naturalistic remnants present in


legal knowledge responds to the requirement for an anti-ideological unveiling of the
pure doctrine, on which to base the autonomy of legal science with respect to the
causal and sociological sciences and doctrines of natural law: the dissolution of any
naturalistic and causal image of the law infringes, in this way, the traditional sub-
stantialism of legal concepts, and dissolves them in the structure of the legal
qualification.
Interwined with Neokantianism, Kelsens reading of the formal construction of
legal categories decomposes, in the dualism of is and ought, on which Kant
founded the autonomy of a practical reason as distinct from that of a theoretical
reason, the need for a pure methodology of legal science, which is yet rooted in an
unbridgeable gap between knowledge and will. This antithesis, which corresponds
to the division between scientific and authentic interpretation, appears to dissolve
the Weberian conception of value-neutrality (Weber 1917/1949) in the normative
model of legal science. However, the purity of Kelsens doctrine consists of a
concerted critical engagement with ideologies, analogous to the Weberian wertfrei-
heit of scientific research.3
Confronted with the impossibility of an objective foundation for values, able to
fragment, from a jusnaturalistic standpoint, the regulative idea into a series of mul-
tiple and divisive conceptions, reproducing a conservative tendency of the law, the
Kelsenian neutrality entails the renunciation of an ethical-political option, as well as
the necessity of a value-neutral point of view able to reveal the conflicting tension
of opposed values.
The Kelsenian model is certainly one which, in its recognition of the continual
possibility for the assertion of an intrinsically political nature of the normo-
dynamics, integrates the effect of legal neutralisation in the structuring of the legal
norm, in which the decision-rule link breaks down in the self-referentiality of the
legal system.4 This results in the denial of any logical contradiction within the legal
system, in which nullity is represented only as the highest degree of voidability,5
and the dissolution of any norm conflicts in the formal unity of the law.

3
According to Kelsen, validity coincides with Weberian ideal validity. Of course, the distinc-
tions between the two authors are many. For a critical reading, see Bryan etal. 2015.
4
The whole contrast between natural and positive law may, in a certain sense, be presented as a
contrast between a static and a dynamic system of norms. To the extent that natural law theory
ceases to develop its natural order according to a static principle and substitutes a dynamic one,
that is, as it is impelled to introduce the principle of delegation because it has to realize itself in
application to actual human conditions, it imperceptibly changes into positive law (Kelsen 1928a,
407) [Lintera contrapposizione fra diritto naturale e diritto positivo pu essere prospettata, in un
certo senso, come la contrapposizione fra un sistema statico e un sistema dinamico di norme. Nella
misura in cui la teoria giusnaturalistica cessa di sviluppare il suo ordinamento naturale in confor-
mit ad un principio statico, e ve ne sostituisce uno dinamico, cio nella misura in cui costretta
adintrodurre il principio di delegazione, perch deve realizzarsi applicandosi alle effettive con-
dizioni umane, essa muta impercettibilmente in un diritto positivo.],
5
In this respect law is like King Midas: just as everything he touched turned to gold, so everything
to which the law refers assumes a legal character. Within the legal order, nullity is only the highest
degree of annullability (Kelsen 1960, 309310) [A questo riguardo il diritto come re Mida:
102 V. Giordano

The theoretical framework of Kelsenian legal science, through its commitment to


the simple description of all the possible meanings which can be ascribed to norma-
tive statements, preserves, therefore, the ideal of a non-contradictory knowledge of
a methodological rationality. However, at the same time, by seeking to delineate the
semantic core of the language of norms, Kelsenian legal science appears inevitably
to weaken the legal claim to neutrality. This is a neutrality which is even more fran-
tically searched for with respect to the contemporary problem of the increasingly
intractable conflict of rights, and purportedly attained by relinquishing the primacy
of the methodological search for the determination of legal meaning.
The antithesis of knowledge and will, of science and politics of the law, has
become subject to fundamental questioning by new forms of jusnaturalism that
overturn the self-contained and self-referential image of a system of positive law
represented by Kelsenian legal science. By establishing distinct models of the ratio-
nality of the law, such new forms undermine the theoretical constructions of
Kelsenian legal science, and reorientate legal theory towards a foundation in ethics
and wider questions of justification. For these perspectives, lato sensu, jusnatural-
istic, the Constitution, in order to be considered seriously, entails the abandonment
of its preceding conception in a positivist model of law. Hence, the rejection of
central elements of Kelsenian legal science as dogmas: the strictly formal concep-
tion of legal validity of the judgment, the absolute separation between law and
morality, and the Kelsenian value-free character of the legal science in the descrip-
tion of the existing law, as well as the essential, discretionary nature of judicial
decision-making in the interpretation and enforcement of the law.
To the Kelsenian paradigm, rigidly centred on the legal procedures of regulation
and competence, and considered unable, from a methodological perspective, to
address the seriousness of constitutional principles, are opposed theories resorting
to the concept of practical reason as the ultimate foundation for all legal decisions.
Here, the emphasis is not so much upon the dynamic-formal aspects of the law, but,
rather, on the static-rationalistic ones, to the extent that they recognise as constitu-
tionally legitimate only law that has an ethical foundation. This provides a new
impulse to the ethical element as intrinsic to the law, and anchors it in the material
nature of Constitution, that acts as a natural, limiting, foundational law (see Catania
2013, 142).
The effect of this theoretical intervention is that the two conceptual poles, which
tend to reproduce the ancient separation between natural and positive law, between
transcendence and artificiality, seem to reduce the chasm between the identification
of the law and its ethical-political acceptance: a requirement that the Kelsenian

come tutto ci che questi toccava si tramutava in oro, cos tutto ci cui il diritto si riferisce assume
carattere giuridico. Nellordinamento, la nullit soltanto il massimo grado di annullabilit].
According to Kelsen, it would be not correct to require the annulment of an act created by an indi-
vidual who in no way is invested with public authority; and, at the same time, it would not be
possible to consider as non-existent each act produced in breach of the competence principle
(Kelsen 1928b, 163164).
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 103

method seems to preserve, despite its pretention to a value-neutral methodology


rendering this extremely difficult to attain.
The irenic image of the law as a form or technique of neutralization of conflict
appears to have lost its force and plausibility in relation to the deep transformation
of contemporary societies, but this may not have removed the continued pertinence
of the resolutely Kelsenian claim to a combined demythologization and demystifi-
cation of the law, which is able to render law free from mystical, transcendent con-
notations, detached from normative reality. On the other hand, the affirmation of
legal practices that highlight the rigidity and abstractness of Kelsenian scientific
methodology remains indisputable, showing the difficulties encountered by this
method when confronted with the fluidity of legal boundaries; and practices which
found normativity upon forms of argumentative rationality.6

6.2 A
 re WeMoving TowardstheOvercoming oftheBasic
Norm?

The transformations caused by the emergence of the constitutional State, first of all
the positivisation of moral principles, mainly elaborated by the rationalistic jusnatu-
ralism of the Enlightenment (see Fioravanti 2009) imply, for certain representatives
of contemporary constitutionalism (see Dworkin 1977; Alexy 1992) the loss of the
artificial character of the law and, with it, the rejection of the Kelsenian formal
model, undermining its claim to a superior, scientific correctness in the description
of the existing law.
The constitutionalisation of legal institutions results in a flourishing of new per-
spectives that are, lato sensu, jusnaturalistic. They highlight the explicative inade-
quacy of the neutral method, they strive for an ethical and justificatory concept of
the law that is able to guarantee the moral correctness of legal decisions; they also
attribute ethical tasks to a legal science, which is, thus, able to evaluate the corre-
spondence and, hence, the legitimacy or justice of these decisions in relation to
moral and constitutional parameters.
To contemporary constitutionalism the adoption of an ethical model of law in
place of the value-neutral method required by the Kelsenian approach is considered
to be the correct manner in which to account for the binding power of moral prin-
ciples. This consideration is introduced in order to account for the ever-increasing
weight of moral reasoning in the decisions taken by judges, where it appears to be
not only a restriction upon the application of formal, logical, criteria, but also the
effective removal of the accompanying broad interpretative discretion. Whether or
not they are approaches which make the Constitution a sacred text, there appears
to be an implicit risk in the adoption of this position. Such perspectives, pervaded as
they are by the idea of a defining connection between law and morality, appear to be

6
The original theoretical manifesto of the theories of legal reasoning is assumed to be that of
Aarnio etal. 1981.
104 V. Giordano

based on ethical models appealing to a foundational rationality of the Kantian type:


that rationality which, against the Kelsenian claim to the irreducible hiatus between
reason and will, synthesized in the dualism of is and ought, reduces the chasm
between law and morality through the idea of a practical reason that is immanent in
legal justification.
Although the denomination of neo-constitutionalism seems to define a homoge-
neous movement, in some cases defined as athird direction of philosophy of law
(Barberis 2012), the strategies adopted to reject the scientific correctness of the
Kelsenian method, and to elaborate alternative moral theories result in significant,
internal divergences, depending upon whether they are proposing the necessity of a
rational foundation for the law overcoming the neutrality of the Kelsenian basic
norm (Alexy 1992, Italian Edition 97127) or a Moral Reading of the Constitution
(Dworkin 1996).
In Alexys procedural theory, the connection between law and morals, deriving
from the dualist character of the constitutional principles, appears to reject any idea
of an objective foundation for values but, at the same time, appears to proceed
beyond the Kelsenian boundaries regarding the irreducibility of the subjective char-
acter of the value-judgement through an attempt to institutionalise reason (Alexy
1999). In this theory, the dialectics between real and ideal discourse of the law are
unravelled in a claim of moral correctness intended as an assertion of correctness,
insurance of motivation and expectation of acceptance (Alexy 2009). It is a theoreti-
cal perspective that revisits Kant, in particular, the construction of a pragmatic-
transcendental foundation, through a recovery of Habermas ethics of discourse
(Habermas 1983), diluted in the logical direction suggested by Hare (Hare 1952).7
This perspective reconsiders the implicit rationality of democratic institutions,
and reveals an unresolved, juridical tension between the ethical moment, that is
immanent to law and its transcendental value, that bears the weight of universality,
but that is necessarily subject to the limits and boundaries of the empirical reason.
The consequence of this approach is, therefore, a strong revaluation of the ratio-
nality implied in contemporary democracy, devoid of any substantial quality and
dissolved into a series of procedures, rules and practices which, in a non-subjectivist
sense, structure our form of public life as a network of legal and moral rules. We are,

7
In Alexys re-elaboration, the principle of universalization of moral judgments, as elaborated by
Hare, together with the Habermasian universal pragmatics, in which the pragmatic transcendental
foundation becomes that of a procedural requirement for the discursive formation of the political
will through the democratic process assumes the status of a hypothetical negative criterion for
normative statements (Alexy 1978, Italian Edition, 154.). This strategy of effectively undermining
the Habermasian rationalist foundation, by the consideration of the mere counterfactual character
of the ideal linguistic, also overcomes the utopian feature of such a project and allows us to circum-
navigate the risk of a sacralisation of the democratic process implicit in the abstraction of the
particularism produced by moral argumentation. However, that strategy seems to call into play, by
recovering the logical foundation of a universal ethics, typically a combination of utilitarian pre-
scriptivism, particularistic and subjective elements (Hare 1981, 1997), risking to undermine the
generalizing Kantian element in the various forms of the legal justification. On these aspects and,
more generally, on the risks related to variations of the principle of universalization in the proce-
dural strategies, see Giordano 2012.
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 105

therefore, inside the project of the Enlightenment, where the Kantian heritage has
been deprived of its a priori element, and is placed in the specific reality of our
constitutional systems. The uprooting of the ethical, content-based foundation, as
well as the appeal to a minimal pragmatics which inhere in a series of formal rules,
in the unity of a wholly procedural reason, appear, thus, to close the argumentative
circle upon a tension between formalistic instances and substantive claims to an
objectivization of morals. These instances transfer, through their pretension to
moral correctness, the ambivalence of a discursive foundation of the law which is
circumscribed by the relationship between transcendental needs and the obligation
of a legal motivation.
The result implied by the attempt to overcome Kantian universalism, declined as
a test of abstraction and generalisation, but that unavoidably reproduces the varia-
tions of particularism is, therefore, the tendency to a superimposition of founda-
tional rationality and constitutional justification, that dissolves the transcendental
foundation in the empirical differentiations emerging from hermeneutical practices,
that are all, in one way or another, embodied in the rationality immanent to the
Constitution.
In this way, the ambivalence of the claim to correctness becomes apparent
because, at the same time, it constitutes, in its transcendental pretension, a strong
relationship between the concept of justice and the concept of foundation-
justification; it is then transposed into the law as a mere pretension to a rational
motivation. The result of this solution is unable to provide an explanation that dif-
fers significantly from that of legal positivism, as to the array of the interpretative
choices offered by jurisprudence. It also has the tendency to reiterate, in a moral
sense, legal normativity, a normativity that excludes only residual cases of law
application, judgments that cannot be justified by the whole constitutional frame
(Giordano 2004, 227).
The overcoming of the neutrality of the basic norm, from a perspective that
includes the claim of moral correctness, tends, ultimately to situate the concept of
the binding force outside the artificial frame of the law. This is accompanied by the
dissolution of the necessary distinction, particularly for western liberal societies,
between the identification of the law and its ethical and political acceptance. In this
sense, therefore, the risk of an excessively ideological reading of legal practice
seems to constitute the weak point of the procedural theory of the law: the introduc-
tion and coexistence of ethical and formalistic elements inside a procedure that is
assumed as neutral, and therefore objectivised; and the relevance of some type of
normative assumption, that inevitably requires for its practical determination, a ref-
erence to some substantial ethical values.
After all, the very attempt, by this argumentative model, to resolve scientifically
the collision of constitutional values through the determination of the relevant prop-
erties of the value-judgements with the formulation of a series of implicit excep-
tions that determine the prevalence of one law over another (Alexy 2003) is a
strategy devised to control, to rationalise the results of the constitutional balancing,
a strategy that is difficult to apply in practice. The mapping of the factual conditions
that are relevant in the concrete case cannot be abstractly predictable, as it u ltimately
106 V. Giordano

calls the interpreter to a constant revision of the ideal normative model. In this way,
the weighting formula (Alexy 1986, English edition, 408425) results in an ideal
scheme that is excessively open to the discretional elements that are necessarily
brought into play by the collision of rights, and it confronts the risk of losing, in the
varied array of unpredictable exceptions, the force to neutralise the political or of
reproducing a menacing tyranny of values.8
Ultimately, this model returns the scheme of constitutional balance to some form
of rationality based on subsumption, as it determines a surplus of legal formalisa-
tion that is not able to recognize new moral instances. At the same time, the rele-
vance of the concrete case, with all its array of implicit exceptions to an ideal
normative model, tends to tie the discourse about the law to a specific discursive
context; thereby, however, no longer standing as an effective instrument able to
deflate the decisionistic and political element that had been indicated by Kelsen.
Therefore, if, on the one hand, the discursive paradigm seems very distant from
the Kelsenian perspective, with both its fluid boundary between law and ethics and
its contamination of law by procedures of practical-general discourse, on the other
hand, the theoretical distance from this project seems to be reduced by the claim to
a formal instance that is implied in the adoption of a procedural model. In this case,
scientific method as the control of value judgements expressed in the law, over-
comes the value-neutral method underpinning the positivist model, so reflecting the
aspiration of the predictability and certainty of the law which is typical of
modernity.
An overview of this neo-jusnaturalistic version indicates, ultimately, the diffi-
culty in proceeding on an uninterrupted path between the need to solve the moral
dilemma with a discursive procedure, one that reproduces in itself the ethical-
political conflict, and the expectation of predictability and certainty of the law,
based on the self-referentiality of the legal system in the Kelsenian sense.

6.3 A
 greements andDisagreements: Does aShared Ethics
Really Exist?

The other pole of contemporary jusnaturalism, rooted in the Lockean model, over-
comes the artificialism of the previous paradigm by re-interpreting the process of
constitutionalisation of the legal system as a manifestation of the natural character
of the law. This centres upon the legitimisation and justification of rights, which are
to be understood to exist independently from, and prior to, any legal formalisation,
and situates them within an ethical-institutional history, a history that should have
left a trace of itself in practical reason.

In the sense accorded to it by the analyses of Schmitt 1960.


8
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 107

It is Dworkins model, Law as Integrity, that breaks up Benthams distinction


between expository jurisprudence and censorial jurisprudence,9 that was effectively
incorporated in the Kelsenian method, and highlights the weaknesses and ambigui-
ties of the value-neutral method in its reduction of legal divergences to merely illu-
sory conflicts.
This Kelsenian distortion, implying the recognition of full discretion to judges,
of that auctoritatis interpositio that is acknowledged at each and every level of the
Stufenbau (Kelsen 193031 Italian edition, 242), would end up sterilising any con-
trol over legal reasoning, and making no sense of most of the discussions concerned
with doctrine and jurisprudence.
From this position, the denial of any normative conflict, by the Pure Theory of
Law, and determined by the consideration of the purely political character of any
level of the Stufenbau, seems, indeed, too restrictive a perspective from which to
frame the issue and, from its inception, risks a paralysis of any attempt to discrimi-
nate between correct answers and arbitrary decisions. This, inevitably, results in the
exportation, outside the boundaries of the law, of the irreducible ethico-political
character of any choice. For, the requirement of the Kelsenian model is for a norma-
tive knowledge that does not tolerate any logical contradiction that may nullify the
unity of the normative system; and that makes impossible the pursuit of that ideal of
methodological purity, and reinterprets the material defects of the law as procedural
defects, by dissolving them in the self-referentiality of its formal rationality.
Yet, Dworkins model, in contrast, is, finally, unable to provide an account of the
existence of spaces of real choice, of a real and effective creation of law by the
judges.
While Dworkins position, based on a form of ethical cognitivism, does not
underestimate the conflictual character of rights it effectively dissolves it into an
ethical-foundational model, based on the principles of equity, justice and procedural
due process, understood as the heritage of the liberal tradition expressed by the
Constitution (Dworkin 1986, Italian edition, 228). Here, the moral justification of
the principles, the adoption of a single political theory law as integrity entails a
complete materialisation of the legal space (Dworkin 1978, Italian edition 147
178), at the cost of underestimating the political character of the same Constitution.
In Dworkins model, it is not the presence of principles, whose conflict opens the
path to Kelsens ethical relativism, but their substantial nature and demand for moral
justification, which puts an end to the legal space and, thus, that the exclusion of
discretion stems not only from the rejection of the restricted model of law offered
by positivism, but also, from the positive affirmation of a necessary connection
between law and morals (Dworkin 2006, 2011).
It is only on the basis of the assumption of the necessary connection between law
and morals that the recognition of judicial discretion makes it possible to offer an

9
A book of jurisprudence can have but one or the other of two objects:
1. To ascertain what the law is: 2. To ascertain what it ought to be. In the former case, it may be
styled a book of expository jurisprudence; in the latter, a book of censorial jurisprudence: or, in the
other words, a book on the art of legislation (Bentham 1988, 324).
108 V. Giordano

account of the existence of authentic disagreements. For, it would not be difficult for
a positivist to say that all of what happens in a legal space of discretion is, in the
main, a moral issue that provokes true, and extremely serious, disagreement.
The herculean task entrusted to judges and, at the same time, the negation of the
existence of spaces of real choice in legal interpretation, appear to confirm that the
representation of the legal phenomenon by this theory is rather too simplistic, and
maybe also a too reconciliatory account of the interpretative moment of the law. In
reality, the situation is different. Not only because judge-made law indicates the
existence of ethical conflict, but especially because the very prevalence of one nor-
mative model in relation to another would presuppose the assumption of a form of
ethical objectivism, whose compatibility with the relativistic character expressed by
Constitutions is not immediately evident or assured.
After all, that same idea of a definitional connection between law and morals
(Raz 1999, 162170) which is actually part of the standpoint for these contempo-
rary constitutionalist versions, more than a product of the process of constitutionali-
sation itself, seems to contain the potential risk of a complete moral idealization of
the law, which these models are not able to circumvent. For, once law has been
identified through its reference to intrinsic moral properties, there is little space, for
either a possible conflict between law and morals or for the very possibility of ethi-
cal pluralism.
Against the risks of an idealisation of the law, intrinsic to the various versions of
neo-constitutionalism, it will, therefore, be necessary to recover some central
aspects of the Kelsenian methodological approach. The discretionary nature of judi-
cial interpretation enables the representation of the moral contents embedded in our
constitutions, as the result of ethical and political choices that are themselves always
partial. It also seems not to hide, under the halo of moral correctness or in the reas-
suring image of a comprehensive ethics, the decisionistic moment of the law, as well
as the absence of a shared ethics.

6.4 A
 symmetric Readings ofContemporary
Constitutionalism: Which Features forPositivism Today?

Theories of constitutionalism established in the twentieth century, which centre


their legal reflection upon the issue of moral principles have been situated and pre-
sented as an advance beyond Kelsenian legal science, casting a shadow over its
formalism, though, in effect, reproducing it by enhancing the substantive moment
of the law and its value. The tension between logical-cognitive rationality, which is
based on the Kelsenian requirement to unveil power, and the practical-discursive
one, which includes the central ethical discourse of the Constitution, actually shows
the problematic nature of the constitutional position, in which the dialectical tension
between nature and artifice tends to become radicalized.
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 109

The pendulum of theoretical reflection tends to oscillate between traditionally


positivist positions; which reinstate the conceptual dichotomy between rules and
principles as a type of species ad genus. Thus, denying their structural difference,
and reconstructing it in terms of a greater generality and vagueness of principles.
This is accompanied, on the other hand, by positions which reinterpret this distinc-
tion in a logical way and detach it from a non-axiological, formal matrix.
Asymmetric readings highlight the difficulty of constructing, on these principles,
a simple, unified category, as Bobbio stressed (1966, 886896), but that often appear
on a meta-theoretical level, and are never really neutral with respect to the assump-
tion of a particular model with which value choices can be confronted.
It then becomes a question of representing the contrast between principles and
rules in terms of a total equality between adducing arguments in constitutional law
and natural law that may capture, in the image of mild law (Zagrebelsky 1992), the
interaction between constitutional values and procedures of communication, or pro-
pose within that dichotomy, to further specify or classify, in a weaker sense, differ-
ent interpretive practices.
The dichotomy subsumption/balancing remains the constitutive foundation of
the argumentative turn of legal theory, the dismissal of that stricto sensu logical-
deductive model, established by the artificial paradigm, involving an enlargement of
the Kelsenian qualifying structure in its definition of the law as a technique of social
control, though it does not seem to necessarily require a radical variation of its cen-
tral categories.
If, in fact, within the neo-constitutionalist perspective, distinguishing principles
from rules entails distinguishing the Constitutional law from Statutory law, leaving
no space for Kelsenian technicality, and attributing an ethical-justificatory connota-
tion to the discourse concerning rights determined by the reflective balancing of a
value-compromised Jurisprudence, then, from the juspositivist position, one can
respond with a recognition of different theoretical positions, from the radicalization
of the subjectivism of values and particularism in the legal sense, to the profound
redefinition of the semantics of the legal lexicon, commencing from a partial revi-
sion of its model.
On the one hand, in fact, the requirement for legal differentiation, arising from
the practices of constitutional balancing related to the constraints of formal justice,
appears to require for its concrete determination the formulation of normative pos-
tulates which put an end to the same form of judgment, reproducing the variability
of the particularist argument10 and, thereby confirming, with Kelsen, the irreducibly

In this view, defeasibility of practical reasoning seems to resort to evaluative concepts, inevitably
10

based on a thesis of ultimate irreducible relevance. For a particularistic reading, see Dancy 1999,
Celano 2006. Concerning the limits of a stabilized decision of moral reasoning, derived from the
implication of ethical concepts, see Naughton and Rawling 2000; McDowell 1998; Crisp 2000.
Concerning the incommensurability of moral reasons, see Shafer-Landau 1997. Concerning the
derivation of particularism from an analytical, epistemological and methodological viewpoint, see
Sinnott-Armstrong 1999. For a deeper understanding of defeasibility, in the direction of epistemic
contextualism, see Lance and Little 2004; on defeasible conditionals, see the foundational analyses
of Alchourrn 1996, Moreso 2002. Concerning the conceptual opposition between universalism
110 V. Giordano

political nature of value judgments. On the other, the construction of models of the
control or regulation of the rationality of law, which extend beyond the ideal of
methodological purity, tend to import the appeal to moral reasoning into an artificial
framework, complicating the issue of the identification and recognition of law. It is,
therefore, the issue of the confinement of these legal agreements to agreements on
the adoption of those same criteria used in identifying the law, setting aside an
actual convergence with legal practice, since the same collision of values tends to
inevitably reproduce no further positions or levels of evaluation. This represents,
from another perspective, the question of the reconciliation of the ethical-political
conflict that arises from constitutional interpretation with a disagreement between
reasonable individuals (MacCormick 1978, Italian edition, 127), given the inti-
mately subjective and partial nature of value judgments. On this theoretical horizon
are located all theories of legal reasoning that aim to control evaluative judgments
expressed by the interpreters through an appeal to a grammar-based discourse cen-
tred on the ideal of a rational acceptability of the law (see Aarnio 1987; Aarnio etal.
1998; Peczenick 1989). Here, the need for legal certainty translates into the need for
a rational reconstruction of the law that overcomes the value-neutral Kelsenian
method through the tendency of these approaches to dissolve the instances of dis-
cretion and the appeal to a scientific foundation which concerns not only the
forms, but also the outcomes of the interpretation.
The issue of redefining the vocabulary of the general theory of law involves, in
turn, commencing with the problematic gap between normativity and effectiveness
in the Rule of law, and the return of the question of the form/content relationship
which is now posed without recourse to the Kelsenian equation between validity
and existence.
In this sense, when natural law has been the foundation for the Rule of law, and
its principles have been transformed from political or external constraints to legal or
internal constraints, it has lost its function as a unique position and framework for
the assessment of positive law: so that every Rule of law has become susceptible to
internal evaluation even with respect to its own principles, as guaranteed by the
positive tables of natural law that are the constitutional charters (Ferrajoli 1998,
351).
The theoretical result of the constitutional process of the legal system is, there-
fore, according to this juspositivist perspective, a reassessment of the role of legal
science, which should no longer be value-free, and merely descriptive, in the
Kelsenian manner, but rather it should understand its object as a project open to
criticism and transformation; and a restatement of the category of legal validity as
one which can take seriously the problem of antinomies and gaps in the law.
It is, in other words, to consider the theoretical value of contemporary constitu-
tionalism, not as a manifestation of the natural character of law but, rather, as a
strengthening of the legal framework in order to engage seriously with the problem
of the constitutionally determined limitations of a certain importance and reduced,

and particularism, as ideal models of practical reasoning, see Redondo 2005, 448. On the exclu-
sionary nature of legal reasons, see Raz 1990.
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 111

according to Kelsen, to procedural defects given the nature of contradiction in


adjecto of the syntagm unconstitutional norm. This is combined with the attribu-
tion to legal science of a critical function in relation to both the external gap between
theoretical and fundamental political principles only partially included in the
Constitution and to the internal parameters of validity.
A constitutional positivism that, even assuming the perspective of the
Enlightenment regarding the separation between law and morality, renders possible
the external criticism of law from a moral point of view, appears to generate a risk
of incoherent overlap between the two distinct roles by which the interpreter can
and should abide. Thus, by removing the separation between description and pre-
scription of law, the necessarily evaluative character of the judgments of legal sci-
ence regarding compliance with the rules of the constitutional principles that appear
to be expressed in the descriptive function tends to become confused with the criti-
cal function of analysis and explication of the fundamental values of the system.
The impression is, therefore, that in a form which reflects the Kelsenian orienta-
tion there is inserted an evaluative concept of legal validity in little harmony with
this orientation, and that cannot claim the status of a scientific character distinguish-
able from its ethical-evaluative function.
An integrated model of legal science, which aims to overcome the divorce,
produced by the technical and legal method, between the theory of law, the philoso-
phy of justice and the sociology of law (Ferrajoli 2007, vol. 1, 41), but that, as with
other forms of legal positivism (Coleman 1982, 2001b, Waluchow 1994, Moreso
2001), is exposed to the difficulty in accounting for the political nature of the
Constitution, outside a legal practice of interpretation of the justificatory kind.
Objections to Kelsenian scientific method, and doubts as to its adequacy with
respect to the challenge of contemporary constitutionalism, are not only raised
within models radically distinct from this artificial paradigm, but appear to arise
even from within the positivist position.
From within positivism, the scientific inadequacy of Kelsenian legal positivism
is supported through the reinterpretation of some of its central assumptions, and to
the value-free methodology required by Kelsen is not opposed a theory of moral
justification, as it is in neo-constitutionalism, but the need for a partial revision of
his model which acknowledges a connection, if only contingent, between law and
morality.
The strategies adopted by these new versions of positivism consist, on the one
hand, in the overcoming of the model of interpretative discretion that can be ascribed
to Kelsen; and, on the other hand, in the rejection of the pedigree model, in the man-
ner in which the category of legal validity is radicalized by Dworkins approach
(1977, 44), in order that the positivist model may be compatible with the inclusion
of constitutional principles, by virtue of their merit or substantial value, amongst the
criteria for identification of the law.
The central problem which this theory has to confront is the direct derivation
from moral principles, intended as criteria of legal validity by virtue of their value,
the specific content of legal rules, in other words, how to distinguish between basic
112 V. Giordano

ethical principles and individual normative specifications of those same ethical prin-
ciples, relinquishing a more substantive theory in order to fulfil them.
The mere presence of constitutional principles is not in itself able to justify the
reduction of judicial discretion: semantic reasons that appeal to the vagueness of
their linguistic formulation, as well as the need for their contextual balance, lead us
to concur with Kelsen that they inevitably result in reproducing spaces for discre-
tionary choice by judges. As an attempt to confine legal agreements to agreements
on the use of the same criteria for recognition, regardless of the different moral
contents, which from time to time are identified, it is not satisfactory. This would
mean, in fact, on the one hand, to disclaim the substantive value of ethical princi-
ples; on the other, to transform the same social practice into a merely apparent
convention. The radical rethinking of the concept of social convention (see Marmor
2001), in the sense of a shared cooperative activity (Bratman 1992), in an attempt to
soften the tension between the distinction convention/cooperation (Coleman 2001a,
Shapiro 2002, 2011), seems to relegate legal normativity to the field of ethical-
political choices. Of course, the ambiguous nature of the Hartian position appears to
lend itself to different interpretations of normativity, the formalistic Hartian instance,
and the circularity within which the conventional approach is wrapped, appear to
reflect the relevance of a degree of homogeneous social practice where the uncer-
tainty of the law is confined to the margins, but it is not completely situated within
the conflict arising from moral pluralism (Hart 1961).
However, the problem here is that recognizing the opacity of the supreme and
definitive rule of recognition (Hart 1994) inevitably means weakening its ability to
act as a definitional test for identification and selection of the law, namely, to subor-
dinate the identification of legal rules to those very dependent reasons that it should
exclude: thus making impracticable a minimal understanding of the actual authority
of the law within the framework arising from an origin in the sporadic emergence of
ethical conflicts.
This positivist model, however, appears to claim more than Hart and the later soft
positivism intended: Hart not only attaches to the rules of recognition a function which
may dissolve the problems of legal uncertainty, but he seems to resolve the same con-
ception of effective acceptance in a judgment concerning the adequacy of the rule of
recognition with respect to its end (Catania 1997), namely, providing the criteria for
the identification of the law. For this reason, the inclusive position, appears problem-
atic because the moral disagreements would undermine the effectiveness of the rule of
recognition, but not its existence. If the rule of recognition is a customary rule that is
manifested in the convergent practice of the courts to identify the law, on the basis of
the criteria established by it, the ineffectiveness inevitably imposed by the controver-
sial principles would destroy the entire pyramidal structure of the Hartian conception,
commencing directly from its fulcrum: the concept of acceptance.
On the other hand, the reasons in favour of exclusive positivism (Raz 1979), that
emphasize the authoritative nature of the law, understood as an exclusionary rea-
son in relation to all the other reasons that the individuals would have to act, high-
light the need for the law to provide specific answers, without referring, thereby
effectively erasing itself, to the different controversial, individual moral concep-
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 113

tions. For this contrasting, hard positivist solution, an inclusive rule of recognition,
which makes the identification of the law dependent upon those same moral reasons
that it should exclude, is incompatible with the recognition of any form of practi-
cal authority of the law and, therefore, with the same function of guidance of indi-
viduals behaviour.
To conclude, the answer offered by soft positivism seems to conflict with the
notion that the law has the function of neutralizing practical conflict, which presup-
poses that legal reasons cannot be subsumed or dissolved by moral reasons but are,
instead, the most important in the practice of deliberation. Alternatively, an exclu-
sive reading, in the Razian sense, opens the path to the inevitable presence of judi-
cial discretion and the resulting judge-made law, thereby returning to law its
autonomous practical relevance. Asymmetric readings, on the one hand, transpose
legal positivism into cooperative practices in a moral sense; and, on the other, they
tend to radicalize the formalistic instance of neutralization of conflicts still all inside
the representation through which Hobbes and later Kelsen laid the foundations
of modern legal rationality.

6.5 D
 isenchanted Image oftheLaw andtheSpace
forPolitics

Kelsens age was a time of demystification and disenchantment. The Copernican


revolution effected by Kelsen in relation to the legal science of the nineteenth cen-
tury, when he overturned the triad of System-State-Sovereignty (Kelsen 1945) and
the dissolved the ideal of legal certainty through the recognition of the constitutive
character of legal decisions, transforms the traditional substantive character of legal
concepts into the artificially-bound rationality of the Stufenbau.
The turn made by Kelsen, centred upon the hypothetical-cognitive redefinition of
the foundation of law and, as its necessary corollary, the accompanying conceptual
lexicon, seeks not to contain, but rather to decipher, and to reveal the political nature
of the law.11 This project is simultaneously animated by the implicit risk of the re-
emergence of jusnaturalism: the crystallization of law into a static, harmonious and
transcendent order.
However, the resulting transformation the self-referentiality of the legal sys-
tem that contains within itself all kinds of ethical-political value judgments, dis-
solving them into the correct observance of the principle of competence, can be
understood as reappearance of the logic of Hobbes modern neutralization of con-
flicts, a logic that somehow seems to falter with the crisis of the monolithic self-
representation of power and then, inevitably, with the weakening of the modern
project of discipline and control originating from the process of legal globalization.

11
See, Catania 2008, 22.
114 V. Giordano

Nonetheless, some practices and forms of argumentation, which tend to blur the
separation made by Kelsen between knowledge and will, and to indicate the conflic-
tual polarity between the claim of an ordering normativity and a social reality which
is differentiated and fragmented and, thus, entails the need to be regulated and
shaped. It is an enigmatic context, in which a plurality of perspectives are increas-
ingly intertwined, and which, in the new forms of jusnaturalism, seem to provide
the outlines of a shared ethos and, with it, the possibility of homogeneous and non-
conflicting interpretations.
The recognition of the collapse of the modern barrier which had established a
difference between law and morals, requires the positivist presumption of self-
referentiality of law and morals to be rethought. It is necessary, therefore, to synthe-
size the Kelsenian deductive logic with a practical rationality arising from
constitutional balancing. However, the direction taken by the current philosophies
of neo-constitutionalism, which reinterpret the insertion of rights into the legal sys-
tem as guarantees and limits of the political, inevitably lead to the underestimation
of the conflictual character which is immanent to moral reflection.
This conflict is to be understood as an irreducible remnant which can never be
completely neutralized by either a claim of moral correctness of the law or by a
substantial and comprehensive ethics which obscures the essential political matrix
of the law. It is, therefore, fundamental to adopt Kelsens disenchanted view which
cannot relinquish the increasing and undecidable conflictual character of rights, in
respect of which each right affirms itself in conflict with other rights. It is, arguably,
a underlying concordance with the Weberian framework of polytheism which
impressed itself upon his legal methodology, and that leads him to be suspicious of
a synthesis of rights which could be somehow definitive.
Therefore, attention centres upon the renewal of the cognitive rationality of
Kelsens method, confronted with the impossibility of considering the constitu-
tional framework as a positive table of values, always coherent in itself, and that
reveals the dynamic matrix of legal interpretation, the irreducibility of positions and
levels of discretion connected to the partial character of legal and political synthesis.
All this occurs without claiming, in other terms, that argumentative rationality is
able to absorb the ethical-political conflict originating from moral pluralism.
And, from this, a softening of the methodological strictures of Kelsens project
develops that rejects the self-referential representation of the law which perfectly
encloses the formalistic image of modernity. This rejection is, however, combined
with the opening towards the complex plurality of law without claiming to represent
rights through a reassuring image but, conversely, by emphasizing that their effec-
tiveness arises from their human, cultural, pluralistic origin.
Such an effectiveness, returning power and responsibility to those who construct
and recognize the law, or to the legal scientists perspective, is never, in the last
instance, actually neutral. In this sense, perhaps, one can retain a valuable Kelsenian,
methodological presupposition which demonstrates the indisputable space for
politics.
If, in fact, the actual divergence in relation to constitutional values emerges not
through the relevance of the principle of universalisation but, rather, through the
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 115

concrete levels of conflict, the emerging conflictual divergence does not always
become something capable of being contained within the boundaries established by
an argumentative rationality. Hence, the further presence or requirement of forms of
political re-negotiation, processes of subjectivization, which thereby renew and
reinvigorate the political nature of the law, the strategic or instrumental nature of
the law.
The constitutionalisation of the legal system cannot be understood in terms of a
total juridification of morality, that reverses the dialectical tension between natural
law/positive law. It requires, instead, a less pacified conception of the interpretation
of the law. Hence, it would seem necessary to adopt a model of law that represents
the enforcement of the moral contents as a result of essentially partial ethical-
political choices, and that does not occlude this characteristic of the interpretative
choice or selection, disguising it as a natural, rational, realisation of the
Constitution.
Due to the impossibility of considering the constitutional framework as a posi-
tive table of values, no ethical-political engagement can be attributed to legal sci-
ence except for a commitment to describe and classify the lexicon of law/rights: a
task that allows the representation of positive morals embodied in legal practises to
be detached from any transcendental claim of universalization. Without claiming, in
contrast to the inherent risk of all these other approaches, that such positive morality
is internally coherent, it reflects the Constitution and, thus, presents the only possi-
ble morality.

References

Aarnio, Aulis. 1987. The Rational as Reasonable. A Treatise on Legal Justification. Dordrecht/
Boston/Lancaster/Tokyo: Reidel.
Aarnio, Aulis, Alexy Robert, and Aleksander Peczenik. 1981. The Foundation of Legal Reasoning.
Rechstheorie 12.
Aarnio Aulius, Alexy Robert, Peczenik, Aleksander, Rabinowicz Wlodek and Wolenski, Jan. 1998.
On Coherence Theory of Law. Juristfrlaget I. Lund: Lund, January.
Alchourrn, Carlos E. 1996. Para una lgica de las razones prima facie. Anlisis filosfico 16:
113124.
Alexy, Robert. 1978. Theorie der juristichen Argumentation. Die Theorie des razionalen Diskurses
als Theorie der juristischen Begrndung. Frankfurt am Main: Suhrkamp Verlag. Italian edition:
Alexy, Robert. 1998. Teoria dellargomentazione giuridica. La teoria del discorso razionale
come teoria della motivazione giuridica. Trans. M. Latorre. Milan: Giuffr.
. 1986. Theorie der Grundrechte. Frankfurt am Main: Suhrkamp. English edition: Alexy,
Robert 2002. A Theory of Constitutional Rights. Trans. J. Rivers. Oxford: Oxford University
Press.
. 1992. Begriff und Geltung des Rechts. Freiburg im Breisgau-Mnchen: Verlag Karl Alber
GMBh. Italian edition: Alexy, Robert. 1997. Concetto e validit del diritto. Trans. F. Fiore.
Turin: Einaudi.
. 1999. My Philosophy of Law: The Institutionalisation of Reason. In The Law in
Philosophical Perspectives, edited by L.J. Wintgens, 2345. Dordrecht/Boston/London:
Kluwer Academic.
116 V. Giordano

. 2003. On Balancing and Subsumption. A Structural Comparision. Ratio Juris 16:


433449.
. 2009. Hauptelemente einer Theorie der Doppelnatur des Rechts. Archiv fr Rechts- und
Sozialphilosophie 95: 151166.
Barberis, Mauro. 2012. Il neocostituzionalismo, terza filosofia del diritto. Rivista di filosofia del
diritto 1: 153164.
Bentham, Jeremy. 1988. The Principles of Morals and Legislation. Buffalo: Prometheus Books.
Bratman, Michael. 1992. Shared Cooperative Activity. Philosophical Review 101: 327341.
Bryan, Ian, Peter Langford, and John McGarry, eds. 2015. The Foundation of the Juridico-Political:
Concept Formation in Kelsen and Weber. London: Routledge.
Bobbio, Noberto. 1966. Principi generali del diritto. Novissimo Digesto italiano XIII: 886896.
Catania, Alfonso. 1997. Acceptance in the Thought of H.L.A. Hart. In Law and Language: The
Italian Analytical School, edited by A. Pintore and M. Jori, 147163. Liverpool: Deborah
Charles Publications.
. 2008. Metamorfosi del diritto. Decisione e norma nellet globale. Rome-Bari: Laterza.
. 2013. Diritto naturale e diritto positivo nella tradizione occidentale. Costituzione e diritti
umani. In Effettivit e modelli di diritto, edited by V. Giordano, 33148. Turin: Giappichelli.
Bruno, Celano. 2006. Pluralismo etico, particolarismo e caratterizzazioni di desiderabilit: il mod-
ello triadico. Ragion Pratica 1: 133150.
Coleman, Julius. 1982. Negative and Positive Positivism. The Journal of Legal Studies 11:
139164.
. 2001a. The Practice of Principle. In Defence of a Pragmatist Approach to Legal Theory.
Oxford: Oxford University Press.
. 2001b. Incorporationism Conventionality and the Practical Difference Thesis. In Harts
Postscript. Essay on the Postscript to the Concept of Law, edited by J. Coleman, 123147.
Cambridge: Oxford University Press.
Crisp, Roger. 2000. Particularizing Particularism. In Moral Particularism, edited by B. Hooker and
M. Little, 2347. Oxford: Oxford University Press.
Dancy, Jonathan. 1999. Defending Particularism. Metaphilosophy 30: 2532.
Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University Press.
. 1978. Is There No Right Answer in Hard Cases? New York University Law Review 53/ I.
Re-edited in Dworkin Ronald. 1985. A Matter of Principle. Cambridge Mass.: Harvard
University Press. Italian translation: Dworkin, Ronald 1990. Questioni di principio. 147178.
Milan: Il Saggiatore.
. 1986. Laws Empire. Cambridge (MA): Harvard University Press. Italian edi- tion:
Dworkin Ronald. 1989. Limpero del diritto. (trans: Caracciolo di San Vito L.). Milan: Il
Saggiatore.
. 1996. Freedoms Law, The Moral Reading of The American Constitution. Oxford: Oxford
University Press.
. 2006. Justice in Robes. Cambridge (Mass): The Belknap Press of Harvard University
Press. Italian edition: Dworkin, Ronald 2010. Giustizia in toga. Rome-Bari: Laterza.
. 2011. Justice for Hedgehogs. Cambridge, MA: The Belknap Press of Harvard University
Press.
Ferrajoli, Luigi. 2007. Principia Iuris, Teoria del diritto e della democrazia. Vol. 1 and 2. Laterza:
Rome- Bari.
. 1998. Diritto e Ragione, Teoria del garantismo penale. Rome-Bari: Laterza.
Fioravanti, M. 2009. Constitutionalism. In A Treatise of Legal Philosophy and General
Jurisprudence, Vol.9 A History of Law in the Civil Law World 16001900, edited by D. Canale,
P. Grossi, and H. Hofmann, 263300. Dordrecht: Springer.
Giordano, Valeria. 2004. Il positivismo e la sfida dei principi. Naples: ESI.
. 2012. Le teorie del ragionamento giuridico. Divaricazioni, ambivalenze, dilemmi. Ars
Interpretandi 1: 103121.
6 Constitutionalism andValue-Free Method: Kelsens Legacy inContemporary 117

Habermas, Jrgen. 1983. Moralbewutsein und kommunikatives Handeln. Frankfurt am Main:


Suhrkamp Verlag. Italian edition: Habermas, Jrgen. 1993. Etica del discorso. Roma-Bari:
Laterza.
Hare, Richard M. 1952. The Language of Morals. London: Oxford University Press. Italian edi-
tion: Hare, Richard M. 1968. Il linguaggio della morale. Rome: Ubaldini.
. 1981. Moral Thinking. New York: Oxford University Press. Italian edition: Hare Richard
M. 1989. Il pensiero Morale. Livelli, metodi, scopi. Bologna: Il Mulino.
. 1997. Sorting Out Ethics. Oxford/New York: Oxford University Press. Italian Edition:
Hare, Richard M. 2006. Scegliere unetica. Bologna: Il Mulino.
Hart, Herbert L.A. 1961. The Concept of Law. London: Oxford University Press. Italian Edition
(trans: Cattaneo, M.): Hart, Herbert L.A. 1965. Il concetto di diritto. Turin: Einaudi.
. 1994. The Concept of Law 2nd ed. with a Postscript edited by Penelope A. Bulloch and
Josef Raz. Oxford: Oxford University Press.
Kelsen, Hans. 1928a. Die philosophischen Grundlagen der Naturrechtslehre und des
Rechtspositivismus. Italian translation: Kelsen, Hans. 1952. La dottrina del diritto naturale ed
il positivismo giuridico, 395454. Appendix to Teoria Generale del diritto e dello Stato.
Kelsen, H. 1928b. La garantie Jurisdictionnelle de la Constitution (La justice constitutionnelle).
Rev. Dr.publ.et sc. Pol. XXXV: 197257. Italian edition: Kelsen, H. 1981. La garanzia giuris-
dizionale della Costituzione (la giustizia costituzionale). In La giustizia costituzionale, Hans
Kelsen Milan: Giuffr.
Kelsen, Hans. 19301931. Wer Soll de Hter der Verfassung sein. Die Justice, Italian Edition:
Kelsen, H. 1981. Chi deve essere il custode della Costituzione. In La giustizia costituzionale,
edited by Hans Kelsen, 229291. Milan: Giuffr.
. 1934. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Leipzig/
Vienna: Verlang Franz Deuticke. Italian Edition: Kelsen, H. 1952. La dottrina pura del diritto
(trans: Treves, R.) Turin: Einaudi. (Re-edited 1967 with the title Lineamenti di dot- trina pura
del diritto.)
. 1945. General Theory of Law and State. Cambridge Mass: Harvard University Press.
Italian Edition: Kelsen, Hans. 1952. Teoria generale del diritto e dello Stato. Milan: Etas.
. 1960. Reine Rechtslehre. Vienna: Verlag Franz Deuticke. Italian Edition: Kelsen, H. 1966.
La dottrina pura del diritto (trans: Losano, M.G.). Turin: Einaudi.
. 2002. Introduction to the Problems of Legal Theory (trans: Paulson, Bonnie Litschewski
and Paulson, Stanley L). Oxford: Oxford University Press.
Lance, Mark, and Little Margaret. 2004. Defeasibility and the Normative Grasp of Context.
Erkenntnis 61: 435455.
McDowell, John Henry. 1998. Mind Value and Reality. Cambridge, MA: Harvard University Press.
MacCormick, N. 1978. Legal Reasoning and Legal Theory. Oxford: Oxford University Press.
Italian translation: MacCormick, N. 2001. Ragionamento giuridico e teoria del diritto (trans:
Schiavello, A.). Turin: Giappichelli.
Marmor, Andrei. 2001. Legal Conventionalism. In Harts Postcript. 193217.
Moreso, Jos Juan. 2001. In defence of Inclusive Legal Positivism. In The Legal Ought, edited by
P. Chiassoni, 3763. Turin: Giappichelli.
. 2002. Conflitti fra principi costituzionali. Ragion Pratica 18: 201221.
Naughton, David, and J. Piers Rawling. 2000. Unprincipled Ethics. In Moral Particularism, edited
by B. Hooker and M. Little, 265275. Oxford: Clarendon Press.
Peczenik, Aleksander. 1989. On Law and Reason. Dordrecht/Boston/London: Kluwer.
Raz, Joseph. 1979. The Authority of Law. Essays on Law and Morality. Oxford: Oxford University
Press.
. 1999. Practical Reason and Norms. Oxford: Oxford University Press.
Redondo, M. Cristina. 2005. Ragioni e norme. Ragion pratica 25: 439468.
Shafer-Landau, Russ. 1997. Moral Rules. Ethics 107: 584611.
Shapiro, Scott. 2002. Law, Plans, and Practical Reasons. Legal Theory 8: 387441.
118 V. Giordano

. 2011. Legality. Cambridge: Cambridge University Press.


Schmitt, Carl. 1960. Die Tyrannei der Werte. Stuttgart: W. Kohlhammer.
Sinnott-Armstrong, Walter. 1999. Some Varieties of Particularism. Metaphilosophy 30: 112.
Waluchow, Wilfrid J. 1994. Inclusive Legal Positivism. Oxford: Clarendon Press.
Weber, Max. 1917/1949. The Meaning of Ethical Neutrality in Sociology and Economics. In The
Methodology of the Social Sciences, edited by E.A. Shils and H.A. Finch, 147. New York:
Free Press.
Zagrebelsky, Gustavo. 1992. Il diritto mite. Legge, diritti, Giustizia. Turin: Einaudi.
Part IV
Against Practical Reason
Chapter 7
Hans Kelsen andPractical Reason

FrancescoViola

Abstract The critique of practical reason, in all its possible forms, has a far more
important and decisive role in Kelsens thought than the rejection of Natural law
doctrine. Admitting that a practical use of reason is legitimate, namely, that there is
a possible connection between intellect and will, would mean destroying the whole
foundation of the scientific undertaking of the Pure Theory of law and its concep-
tion of the legal norm, which is its central aspect. By depriving practical reason of
all foundation, any reference to agency and practical deliberation is excluded from
Kelsens theory of law. Consequently, the Ought loses all capacity of attraction and
motivation of human action, rendering Kelsens normativity inert. This chapter
intends to show that Kelsens enterprise of purifying legal science only attains its
fulfilment when the practical dimension of reason itself is eradicated, along with the
sociological or political or ideological aspects of law; and in this way the Pure
Theory of law is forced to forgo some of its distinctive features, as is evident in
Kelsens final works; and that the demise of practical reason strongly destabilizes
the Pure Theory of law itself.

7.1 Introduction

It is arguable that it is no longer possible to offer or develop any entirely new insights
into or reflections upon Kelsens thought. Rather, the interpretative parameters have
already been firmly established, leaving the sole task to be that of drawing up the
balance sheet: asking what is alive and what is dead in the Pure Theory of law, and
reflecting on its positive and negative legacy (e.g., Duarte dAlmeida etal. 2013). From
this perspective, it is possible to state immediately that, regarding practical reason, the
balance is entirely negative. The developmental paths and tendencies of contemporary
legal theory and philosophy all proceed in the opposite direction to that of Kelsen.1

1
I refer in particular to conceptions of law as argumentation, namely, those for which legal reason-
ing is not only an aspect of the concept of law, but its heart. Cf. for instance Alexy 1978, 1987 and
also, more recently, Atienza 2013.
F. Viola (*)
Department of Law, University of Palermo, Palermo, Italy
e-mail: francesco.viola@unipa.it

Springer International Publishing AG 2017 121


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_7
122 F. Viola

Nevertheless, it remains instructive to consider what led Kelsen to hold and maintain
such a fierce aversion towards practical reason, to the extent of seriously endangering
the most significant and lasting achievements of his thought, such as that of the very
principle of delegation.
In order to undertake this analysis, the focus will centre upon the General Theory
of Norms, which as is well known was published posthumously. Here, we find
the outlines of the final death of practical reason (Hartney 1993), whose initial
throes, however, commence from Kelsens earliest writings. The definitive demise
of practical reason leads to other significant elements of Kelsenian normativity
being relinquished which, in turn, bears witness to the crucial character of this
theme.2 Hence, this posthumous work is not to be considered a minor, unremarkable
text but, rather, as a central resource in the comprehension of the serious internal
difficulties of the overarching Kelsenian conception of law.3 I will explain some of
these difficulties in 12 steps.

7.2 The Identity Between Practical Reason andNatural Law

Practical reason not seen as scientific reason on a par with theoretical-descriptive


reason is considered by Kelsen, from his earliest works (e.g., Kelsen 1998, 36),
as a central opponent and obstacle to the elaboration of a Pure Theory of law that is
far more dangerous than natural law itself.4
The explicit engagement with practical reason continues to be a significant
aspect in the further development and periodization of Kelsens work. According to
Kelsen, practical reason is a norm-creating reason. This concept of reason, as one
which is distinctively practical, is untenable for Kelsen because the function of
reason is knowing and not willing, whereas the creation of norms is an act of will
(Kelsen 2005, 196). The severity of this critique is, however, apparently somewhat
attenuated in relation to the metaphysical-theological conception of natural law,
which for Kelsen is paradigmatic5 because, in contrast, it retains the connection
between the norm and an act of will, that of God. Thus, human reason knows, but
does not produce, the divine norm.
This attenuation is the expression of Kelsens underlying concern with the cri-
tique of Kant and, in particular, Kantian practical reason and the accompanying

2
Here I agree with the interpretative thesis that the final version of Kelsens Pure Theory of law,
though marking a surprising break with his own lifelong effort to show the scientific character of
his theory of law, is wholly logically consistent with the way in which Kelsen connects legal norms
to human volition. Cf. for instance Duxbury 2007.
3
For the main issues raised by the General Theory of Norms, in particular the doctrine of basic
norm and the role of logic in law, cf. Paulson 1992a; Conte 1998 and Celano 1998.
4
When in the last decade of his life Kelsen gave up the idea that one norm can be logically derived
from another, practical reason too in theoretical terms wholly disappears.
5
As a matter of fact, there is no natural-law doctrine of any importance which has not an essen-
tially religious character (Kelsen 1949b, 482).
7 Hans Kelsen andPractical Reason 123

theory of the existence of evident or purely rational norms. Kelsen will never aban-
don the belief that the real theorist of practical reason is Kant. Even when he turns
to consider Aristotelian practical reason, the orientation of the critique is to elabo-
rate a connection to the Kantian conception (Kelsen 1991, 70 and 80), thereby inad-
equately distinguishing the specificity and difference of the Aristotelian conception.
In this connection, if it is true that Kantian practical reason produces norms,
Aristotelian practical reason has instead the task of guiding actions that are not pro-
duced by practical intellect but by rational appetite, which is how Aristotle under-
stands the will. However, for Kelsen this is sufficient to show Aristotles confusion
between reason and will which, in his opinion, is the error typical of practical rea-
son. From this Kelsenian position, neither the difference between norms and actions
as objects of practical reason nor the difference between producing norms and guid-
ing actions as functions of practical reason is of any significance.
The apparent differentiation between practical reason and natural law becomes
increasingly irrelevant in the further development of Kelsens thought. If we con-
sider the early writings on natural law (Kelsen 192728, 1928, 1949a, 1933), the
references to practical reason are not the central focus of Kelsens criticism of natu-
ral law. It is only in the final, posthumously published work that practical reason
becomes the central focus, and is presented as the greatest error of the natural law
doctrine, which Kelsen, in turn, accuses of violating the dualism between Is and
Ought (Kelsen 1991, 70).
In conformity with this development of Kelsens thought, the natural law doc-
trines which are, at first, taken into consideration are essentially the modern ones,
with the exception of Platos thought (Kelsen 195556, 1960a), and it is only in the
final phase that the focus is directly on Aristotle (Kelsen 1973 and also 1991, 6770),
who had not previously been considered by Kelsen as a proponent of natural law.
The Aristotelian concepts of entelechy and practical intellect are the central deter-
minants of the confusion between Is and Ought the central error of natural law.
This approach is combined with the designation of both Kantian and Aristotelian
practical reason as elements of theological conceptions of natural law, in which, in
the last instance, the commands are those of God (Kelsen 1991, 82). From this final
position, Kelsen propounds the complete identification of natural law and practical
reason in all its possible variants and these are, in turn, necessarily stripped of all
significant difference. The effect of this critique is to generate a position which can
be designated as the identity thesis.
The identity thesis, as a form of criticism of practical reason, furnishes Kelsen
with two complementary results: on the one hand, it strengthens the conflation of
practical reason and natural law thereby enhancing their status as a metaphysical
invention6; on the other, it provides further proof that practical reason aims to pro-
duce norms, since natural law is considered by Kelsen in a similar manner to that of
positive law, namely, as a system of norms.

6
The reduction to natural law is a confutative argument that Kelsen uses other times, as in the case
of the Rule of Law expunged from the Pure Theory of law with the accusation of being a natural
law prejudice (Kelsen 1992, 105).
124 F. Viola

7.3 Is Practical Reason Absolute or Relative?

Kelsens fundamental critique of natural law arises from the identification and
denunciation of its metaphysico-theological foundations. The principles of natural
law are ultimately derived from both Gods will and of Gods thought because it is
only in God that reason and will coincide. Hence, divine reason is effectively practi-
cal reason, the only permissible practical reason (Kelsen 1991, 5). However, in
Gods absolute reason there is no longer a distinction between the theoretical and
practical dimension. Human practical reason, namely, action aiming at what is rea-
sonable, contingent, likely, linked to certain circumstances and contexts practical
reason according to Aristotle,7 is not included within this definition. Practical
reason is only admissible on condition that there is a coincidence between reason
and will. This degree of coincidence or identity, however, finds no inherence in the
human world.
The underlying problem, which Kelsens critique partially reveals, and would
itself require a separate, more detailed discussion, is whether there is a necessary or
a merely contingent connection between practical reason and natural law doctrine.
Does natural law necessarily also imply practical reason? Does practical reason
necessarily lead to a defence of natural law? However, this type of question cannot
be answered without adopting the position of a specific theory of natural law and a
specific theory of practical reason.
One can, nonetheless, as a matter of fact and in principle, plausibly maintain that
not all doctrines of natural law are based on practical reason. For, the argument that
there are norms or values immanent in nature does not in itself lead to the practical
use of reason because the latter could apprehend these norms or values in a
theoretical-descriptive manner. Value judgments would be viewed as similar to fac-
tual judgments: there would be metaphysical facts. Even some upholders of
Scholastic natural law doctrine can be considered to be supporters of this form of
thought. According to Cathrein, for instance, moral obligation derives from a theo-
retical truth, which indicates which actions are intrinsically good or bad.8 This truth
refers to human nature as marked by the rule of reason drawn from natural
inclinations.
For Kelsen, ultimately, natural law and practical reason are two aspects of the
same philosophical error, rejection of which is the condition of possibility for the
Pure Theory of law. The critical references of the one to the other take the form of a
vicious circle and, in any case, are self-referential. The image of natural law as an
order of absolute norms immanent in nature (Kelsen 1949b, 485) or in reason
(Kelsen 1949a, 392), which is the alternative rival to the artificial order of the hypo-
thetical norms of positive law, corresponds to the image of practical reason as a

7
On the main conceptions of practical reason, see Cullity and Gaut 1997. See, also, Wiland
2002.
8
Norma honestatis [] theoretica est., indicans, quaenam sint actiones intrinsece bonae vel
malae (Cathrein 1945, 146).
7 Hans Kelsen andPractical Reason 125

source of knowledge and, at the same time, the production of absolute norms.
Consequently, in order to refute the former, it is necessary to denounce the ground-
lessness of the latter and vice versa.
It is not the purpose of this chapter to determine whether Kelsens presentation
of natural law is the only possible one because it certainly corresponds to some
doctrines within the history of natural law which erroneously assimilated practical
to theoretical-descriptive reason.9 Here, instead, it should be emphasized that
Kelsens configuration of practical reason is a serious misunderstanding of this con-
cept and its function. For, it is only if practical reason conformed with Kelsens
conceptualization that his critique would retain its pertinence.

7.4 Kelsen Against Kant

The established parameters of interpretation have determined that the philosophical


matrices of Kelsens thought have a markedly eclectic character. However, despite
this eclecticism, the fact remains that the most powerful original influence is that of
Kant (see Tur and Twining 1986). Nevertheless, Kelsen distances himself from Kant
in relation to practical philosophy commencing from the early works, and this even-
tually leads him, in his final work, to extend the purview of his critique to reject even
the constructive character of Kants theoretical reason and to embrace Humes phi-
losophy (Kelsen 1991, 86).
In the General Theory of Norms, Kelsen holds that Kant blurred the separation
between Is and Ought in his teleological conception of practical reason,10 because it
did not adhere to a clear distinction between knowledge and will. Hence, according
to Kelsen, there is full correspondence between the ontological division between Is
and Ought and the anthropological division between reason and will. Kant, although
supporting the former, had rejected the latter; and, for Kelsen, had thereby gener-
ated a fundamental contradiction.
However, if there is full correspondence between Is and Ought, on the one hand,
and reason and will on the other, Kelsen must demonstrate how it is possible to
know the Ought descriptively without thereby losing its strictly normative dimen-
sion. Uniqueness of method inevitably leads to flattening of the objects of knowl-
edge. In this way one loses the possibility of knowing the Ought as such, namely, as
a normativity which is a guide to the human action to be performed. A purely and
rigorously descriptive method can only lead us to know facts connected in some
way to normativity, but is deprived of the capacity to understand their meaning. In
this connection, Kelsenian reason knows only facts and nothing but facts. Thus,
from the orientation of this Kelsenian reason the focus of attention shifts from the

9
See, for instance, the criticisms by George 2000.
10
The self-contradictory concept of practical reason, which is both knowing and willing, and in
which the duality of Is and Ought is therefore resolved, is the basis of Kants ethics (Kelsen 1991,
80).
126 F. Viola

central concern. If normativity is not seen as a guide to human action, its raison
dtre is also lost together with the very meaning of the distinction between Is and
Ought. When Kelsen, in this final work, also forgoes the constructive method of
legal science, which still bears in itself, though weakly, the traces of practical rea-
son, normativity is made totally dependent on the fiction of an original act of will,
namely, on a fact, to boot a fictional one.11 The further consequences of this rejec-
tion of practical reason should lead one to consider the final Kelsenian conception
as a spurious (or, indeed, usurped) form of normativism.

7.5 The Necessity ofaPractical Philosophy

The Pure Theory of law thus assumes two presuppositions which, in turn, depend on
general philosophical concepts: (1) assuming a moral and legal positivism, the only
objects of knowledge are positive norms, i.e., norms generated by acts of human
will12; (2) the practical use of reason has no scientific or, in general, cognitive char-
acter. The concept of practical reason as indicated above is inherently contradic-
tory (Kelsen 1960b, 414425).
The first assumption (ontological) excludes natural law however it is seen as an
object of knowledge. The second assumption (epistemological) confines the con-
ception of law and morality as objects of knowledge to the domain of theoretical-
descriptive reason.
Initial reflection on these two philosophical presuppositions indicates incompat-
ibility, because if law is a human production, knowledge of it would seem to require,
in general, a philosophy of human action as practical philosophy, which is consid-
ered to be contradictory on the basis of the second assumption. If law concerns
things that can be done by man (things, indeed, that can only be done by man), then
it should be considered as an object of practical reason, which deals with the deter-
mination of the reasonable way of doing things. It would seem that a conception of
law, as produced exclusively by human action, such as legal positivism, should be
much more favourable towards the practical reason of natural law itself, which by
definition is not made by man.
In this respect, philosophical positivism, which rejects practical reason, is an
obstacle to legal positivism which, instead, would require it (Pattaro 1974). However,
philosophical positivism will maintain its predominance because the Pure Theory
must preserve its scientific character at all costs, which is, thus, also at the cost of

11
As is obvious from the foregoing, the Basic Norm of a positive moral or legal system is not a
positive norm, but a merely thought norm (i.e., a fictitious norm), the meaning of a merely ficti-
tious, and not a real, act of will (Kelsen 1991, 256).
12
From the point of the view of ethical and legal positivism, the only norms considered to be
objects of cognition are positive norms, that is, norm posited by acts of will, and indeed, by human
acts of will (Kelsen 1991, 4).
7 Hans Kelsen andPractical Reason 127

not respecting the particular nature of its object and the goals proper to legal
knowledge.
Reason is not practical merely through the simple fact of thematising the
domain of human action but, more strictly, only when it serves to determine the
particular action to perform. One knows in order to know how one has to act, since
the action to be performed is the true meaning of the Ought. Practical reasoning has
as a conclusion, not a proposition, but an action. Accordingly, practical reason is not
a reflection on human action, but a reflection for human action. What makes a sci-
ence practical is the goal of knowing. A science is practical when the reasons for
practising it belong to the object to be known, while in the theoretical sciences it is
precisely the contrary. Practical reason, therefore, has an essentially normative char-
acter and not a purely descriptive one.
Programmatically, Kelsen certainly assigned to the Pure Theory the task of a
scientific knowledge of positive law as such and not the norms of a particular legal
system or a fortiori the actions that they regulate.13 And this is a descriptive task.
Besides as Aristotle himself noticed there can be science of the contingent
only because there is something necessary or permanent in what is contingent.
The immutable is also present in the mutability of human action. Nevertheless,
these principles or permanent characteristics of action must have a practical
dimension, that is, they must have a tendency towards decision and action.
Otherwise the descriptive task itself will not be correctly performed. Even if the
intention of the theorist is not practical, the object to be known is practical. In this
sense, a descriptive theory of law is functional or subsidiary to the normative goal
of legal knowledge, which is knowing what action has to be performed. Even the
Pure Theory of law does not justify itself, but derives its justification from the
ultimate goals of practical reasoning, which leads to a decision or an action. While
the need to purify legal theory of sociological and political elements is quite com-
prehensible, purity cannot be taken to the point of forgoing the practical dimen-
sion of law itself.

7.6 The Kelsenian Approach toHuman Action

Kelsens starting point is, correctly, human action and, in particular, the act of will
of those who are empowered to command and prescribe that something ought to be.
This manner of commencement becomes open to question when it concerns the
more specific purpose of conceiving the world of law, which, initially, appears as a
set of institutional structures governed by internal rules and interpretive social prac-
tices that make those structures operative in social contexts. However, Kelsens per-
spective is dependent on the configuration of positive law in the nineteenth-century

13
The Pure Theory of law is a theory of positive law, of positive law as such, and not of any special
system of law. It is general legal theory, not an interpretation of particular national or international
legal norms (Kelsen 1992, 7).
128 F. Viola

elaborated by a legal science linked to imperativism. From within this underlying


orientation as noted by Fuller [the] law should not be viewed as the product of
an interplay of purposive orientations between the citizen and his government but as
a one-way projection of authority, originating with government and imposing itself
on the citizen (Fuller 1969, 204).
The particular manner of commencement is always and, therefore, also for a
theory of law, the decisive orientation. Kelsen starts from a particular type of human
action, whose subjective meaning is that of a command directed towards other peo-
ples behaviour.14 Indeed, if law is produced by man, it is necessary to privilege the
original moment of production, as legal imperativism also held. But Kelsens
approach to human action drastically excludes any teleological explanation. This
as is well known develops according to the following sequence: a state of things
is aimed at as good and, therefore, becomes an object of will and, thus, a goal of
action, which, in turn, dictates the rules or norms that should guide action towards
its ideal conclusion. According to Kelsen, this sequence has to be inverted and
divided into two parts as follows: the norm, without which there is not yet any
Ought, indicates the abstract goodness of the behaviour conforming to it and has no
relationship with the goal, which concerns the psychological and factual aspects of
will (see Viola 2003, 11). We, therefore, have an inversion of the constitutive aspects
of human action with the result that it renders human action unintelligible in its
unity. This extends to every type of action and for every type of agent, in regard to
both the person who commands and the addressee of the command.
Another consequence of the Kelsenian conception of human action is to config-
ure it as a world which is closed in upon itself or self-contained. This entails deny-
ing, from its inception, that the fundamental problem of law is coordination between
human actions and, in particular, between the actions of those empowered by a valid
legal norm (the norm-positing authorities) and the actions of the addressees of their
commands (the norm-addressees). For Kelsen, the fundamental problem of law is
establishing an objective Ought and not the relationship between human actions.
It is interesting to notice that, according to Kelsens original vision, it is impos-
sible to conceive of a will directed towards other peoples behaviour. This is the
error typical of imperativism, which considers the legal norm as a command directed
towards other peoples conduct. This clashes with the psychological conception of
will, which Kelsen takes from the thought of Christoph Sigwart (Sigwart 1904) and
Friedrich Jodl (Jodl 1906, 1908a, b). There is only the existence of a will when, in
human consciousness, there is a representation of the satisfaction of a need or a
tendency through a future event that depends on the activity of the person who
wants or desires. When the future event depends on others, there will be wishing,
but no willing in the strict sense (Kelsen 1923, 110).
Even when this preceding conception is relinquished, and Kelsen admits that the
will can be directed towards the behaviour of a being who understands the meaning
of willing and can behave in accordance with it (Kelsen 1991, 2627), a direct

The norm is not concerned with a human being in all that he is and does; it is only with a certain
14

human behaviour that it is concerned when it decrees it to be obligatory (Kelsen 1991, 29).
7 Hans Kelsen andPractical Reason 129

relationship between the actions of different agents is still precluded. Only indirectly,
namely, through an inward-looking approach, can every agent refer to the action of
another agent.15 In any case, the relationship between agents is conceived as a rela-
tionship between mental states and not as an encounter concerning what is to be
aimed at as good.

7.7 Kelsenian Intentionality

Even within the narrow confines of this perspective Kelsen confronts the problem of
the meaning of acts of will. The subjective meaning of the act of will is permeated
with intentionality,16 which relates to Ought and is directed at those people to whom
the command is addressed, who, in turn, must comprehend this subjective meaning
as an objective meaning if the command is empowered by a norm. Thus, it is neces-
sary to consider that the intentions of the legislator, on the one hand, and, on the
other, the acts of knowledge of the norm-addressee, which considers a subjective
meaning as objective, are both relevant to understanding the norm and to enacting
it.17 However, for Kelsen, this combination is not considered to be necessary.
The subjective meaning to be attributed to the norm does not strictly concern the
concrete behaviour that the norm-addressee, as agent, has to enact, but only the fact
of its existence as an obligation. This distinction appears very strange, and it leads
to the question of how it is possible to want an Ought without willing its contents
(cf. Celano 1990, 229). It is because we want others to behave in a certain way that
we want them to have to behave in that way. Kelsen seeks to avoid the intention of
the act of will being transferred into the norm and, thereby, also to prevent the pos-
sibility of a belief that the norm is for a purpose or wants something. Purpose is
alien to legal construction (Bjarup 2013, 181). According to Kelsen, the norm itself
does not want anything except to make the Ought exist.18
The manifest aversion to a notion of an end is understandable.19 For it is not pos-
sible to want an end without somehow knowing it. Intentionality is charged with a
double meaning: it is intending or knowing something and simultaneously an orien-
tation towards it. The end cannot be wanted if it is not foreseen or known before
being reached. This is an essential element of consideration of the legal subject as

15
For the difference between an inward-looking approach and an outward-looking approach,
which alone can guarantee the guiding function of a norm, cf. Rodriguez-Blanco 2014, 118121.
16
An act whose meaning is that another person (or persons) is to behave in a certain way (Kelsen
1991, 2).
17
On intentionality in Kelsens thought, see Rodriguez-Blanco 2014, 101121.
18
Only the person positing the norm by an act of will and not the norm itself can aim for
something or pursue an end, for only a person can want something; a norm does not want any-
thing (Kelsen 1991, 11).
19
Cf. the criticisms of Aristotle in Kelsen 1991, 6770.
130 F. Viola

an agent, that is, one capable of purposive action (Fuller 1955, 1307)20 and respon-
sible for this. In a doctrine which makes a clear separation between intellect and will
there is no place for intentionality because the will itself cannot set itself any end
without somehow knowing it. However, without intentionality it is no longer even
possible to speak of a subjective sense of an act of will or of a subjective meaning.
For an act of will to have meaning, we have to forgo the strict separation between
intellect and will.
Kelsen considers the relationship between means and end as analogous to a cause
and its effect21; it belongs to Mssen and not to Sollen. The end is considered as a
result or a desired effect. This means that the end is not really the principle that sets
the action in motion or that for which someone acts. Consequently, the norm being
followed or obeyed does not belong to its meaning (Guastini 2013, 68). Otherwise
the norm would arise as the end of the action, and we should admit final causality as
different from causal necessity. For Kelsen, the Ought is not a matter of a relation-
ship either between a norm and behaviour agreeing with this norm, or between an
act of positing a norm and behaviour agreeing with the norm (Kelsen 1991, 11).
Thus, the rejection of practical reason inexorably leads to the disappearance of
the importance of agency for theory of law and with it the agent himself.

7.8 The Concept ofObjective Meaning

The concept of an objective meaning of an act of will also raises problems that are
very difficult to solve. In relation to this concept, the focus is not upon an intention,
because this is always subjective, but upon the way in which norm-addressees, who
believe they are faced with binding norms because of the presence of empowerment,
consider the intention of the legislator. Nevertheless, the distinction between subjec-
tive and objective meanings is not made significantly more intelligible in this man-
ner. It is clear, however, that Kelsen confronts the issue on the theoretical rather than
the practical level, since practical reason is concerned with what to do as theoreti-
cal reason is concerned with to believe (Thorton 1982, 59). Here, Kelsen is con-
cerned with the legal qualification of an action, namely, what it is believed to be.
Indeed, the subjective meaning of an action concerns not only what is being done
or what someone intends to do, but also the legal meaning that the agent attributes
to his or her action, in virtue of the relationship it has with a norm to which the agent
believes it applies. In this case, we are concerned with the subjective legal mean-
ing, which is a self-interpretation of the legal meaning of ones own act (Kelsen
1992, 910). Since one can be deceived regarding the effective legal meaning of

See, also, Rundle 2012.


20

The statement about a necessary relation between willing the end and willing the means is true
21

only if it means that the relation between the means as cause and the end as effect is one of causal
necessity (Kelsen 1991, 18).
7 Hans Kelsen andPractical Reason 131

ones action, we must not confuse the subjective legal meaning, based on a belief,
with the objective belief, based on legal science. It is precisely on the basis of this
distinction that the Pure Theory of law asserts its own specificity and differentiates
itself from a sociological jurisprudence.22
In this manner, an objective legal meaning is a subjective legal meaning con-
forming to a valid norm that, in turn, is the objective legal meaning of another act of
will and so forth. Hence, the overtly theoretical and non-practical character of the
objective meaning, which depends on the Basic Norm presupposed, in the final
instance, is devoid of all intentionality. In this way, law is no longer a question of
what has to be done, but of what one needs to believe one is doing. The practical
sphere is not yet, however, entirely discarded.
As is well known, Kelsen believes that legal science, as it is formulated by the
Pure Theory, is able to distinguish between what people believe is the legal meaning
of an act and its true and objective legal meaning. It is legal science that ascertains
the existence of a system of valid legal norms and, through this process, subjective
meanings are recognized as objective. Legal science carries out this task not by
resorting to what people believe is law, but by constructing a system of norms on the
basis of the presupposition of a Grundnorm. It therefore seems that to establish the
objectivity of the legal meaning it is necessary to resort to scientific reason, which,
however, in this case, would inevitably fulfil a practical function. For this reason,
Kelsen was gradually to downplay the constructive role of legal science, but at the
price of not providing a satisfactory answer regarding the foundation or justification
of the objective meaning of an act of will. In this connection, it does not seem that
one can avoid the alternative between either the derivation of normativity from
social facts linked to the beliefs of law users or the foundation upon the scientific
construction of the system of valid norms by jurists. Kelsen chose the latter alterna-
tive, which is deeply rooted in the western legal tradition whereby the work of legal
doctrine is a constitutive part of law itself. In describing its own object, legal science
inevitably contributes to its shape and justification, thus performing what to all
intents and purposes is a practical function.
It remains unclear whether, for Kelsen, the recognition of a norm is an act of
knowledge or of will because it is both the apprehension of the existence of a norm
empowering the command, on the one hand, and willingness to have to act as the
new norm requires, on the other (Kelsen 1991, 44). This further reinforces the anal-
ysis that it is very problematic to introduce radical distinction between knowledge
and will.23

Cf., as first reference, Kelsen 1911 and the texts collected in Paulson 1992b.
22

For a critical evaluation of the Kelsenian distinction between subjective and objective meaning,
23

see Vinx 2007, 3237.


132 F. Viola

7.9 The Necessity ofPractical Reason forObjective Meaning

Beyond the level of knowledge and will, there are reasons of an ethical and political
nature that require us to distinguish a legal system of valid norms from the arbitrary
exercise of a sovereign power.
If Kelsens norm-addressees hold that the subjective meaning of commands is an
objective meaning, namely, they believe they are faced with binding norms (duties),
this means they have reason to think so, or at least should have. The fact that subjec-
tive commands are somehow judged to have an objective meaning is still not enough
if there are no reasons to believe the whole normative chain makes sense, and this
requires a value judgment, which also extends to the Grundnorm itself. These rea-
sons ultimately rest on considering it reasonable that a society should be guided by
rules that are binding in a normative sense, and that they should be administered by
officials according to well-defined procedures of identification and application. All
this implies that there is an objective and autonomous value of legality, which, in
turn, depends on a political theory or on a theory of justice (Vinx 2007, 31). This
value must be perceived as a good state of affairs worthy of being pursued by all
participants.
In the absence of these reasons and this value, the entire apparatus of the delega-
tion of power, no matter how sophisticated, cannot justify itself and be distinguished
from a criminal organization aiming to subordinate the will of others through the
threat of coercion. Empowering is not in itself sufficient to distinguish the command
of a highwayman from that of a moral or legal authority (Kelsen 1991, 27); we also
need a judgment, from the practical point of view, regarding the meaningfulness of
this form of organization of social life. The very concept of normative validity is
based on reasonableness, because it aims at ensuring some conditions of justice that
law must have, however formal they are.
This critical overview is intended to demonstrate that, in order to eliminate prac-
tical reason, it is not enough to refuse the application of logic to norms, to reject the
constructive or productive role of legal science and consider legal organs as the
immediate norm-addressees; we must also neutralize the presence of intentionality
and the relevance of reasons that induce the addressees to recognize the normativity
of law.

7.10 The Centrality ofNorms

According to Kelsen, the whole realm of the Ought is produced by human will and
is composed of norms and only of norms. If it were not so, a potential field for the
exercise of practical reason would remain open, for example, in the area of morals
and one would have to admit the existence of absolute and objective value judg-
ments. For Kelsen, value always comes after the norm and indicates the compliance
of behaviour with it (positive value) or non-compliance (negative value) (Kelsen
7 Hans Kelsen andPractical Reason 133

2005, 17). This judgment may be true or false, though in a different sense from a
judgment of fact.
If the value were not derived from a norm, then, according to Kelsen, it would be
irremediably subjective, since it would be founded on the desire or will of one or
many individuals. In this connection, there is nothing that is, by itself, desirable, but
only states of affairs that are in actual fact desired by one or many individuals. We
will, therefore, have a subjective value judgment that is at the same time a judgment
of fact (Kelsen 2005, 2022).
In the Kelsenian configuration of the realm of the Ought, there is no alternative
other than the fallacious one between a world of norms immanent in nature or in
reason and absolute value judgments, because there are absolute norms. For Kelsen,
there is no possibility of a middle way between the two. Consequently, positive law
drives out natural law and vice versa. But if we conceive practical reason from
within the Aristotelian tradition (see e.g. Westberg 1994), which as noted above
Kelsen had long ignored almost entirely, one has an understanding of the Ought that
is completely different from the drastic choice between absolute norms and hypo-
thetical norms. Above all, norms are no longer at the centre of the Ought, but at its
periphery and have a role that is functional to the end to be reached or achieved.
If the world of the Ought were only inhabited by norms, as Kelsen believes, then
it would be impossible to understand its internal dynamism. In this connection, the
Ought, by definition, is oriented towards being, i.e., towards the action to be per-
formed. But for Kelsen Ought aims at nothing but itself: Ought (Kelsen 1991,
59). This means that this Ought is normatively inert. This is quite understandable
since the Ought, by itself, lacks that attractiveness that is proper to values, even
admitting that they are relative and subjective. If one forgoes the primacy of the
value over the norm, the latter loses all capacity to initiate action. The Ought will no
longer be directed towards the Is.
Indeed, for normativity norms are not in themselves sufficient, and we also need
reasons to establish them, to recognize them and obey them. These reasons relate to
actions in relation to which the norms are directed, that is, the being to which the
Ought tends. There can be no legal or moral normativity without respect for the
conditions necessary for agency.

7.11 Practical Reason andtheConcept ofLaw

This question is not the internal one of rights and duties that one has because of law,
i.e., a question arising within a particular legal system, but that of the very existence
of legal norms. Even if we admit that the contents of norms do not require any jus-
tification in terms of reasonableness, at least belief in the existence of positive norms
needs justification. The hypothetical assumption of the validity of a Basic Norm is
not enough because we still have to reflect upon the particular reasons for which the
need for this assumption is based and, ultimately, why the commands of the dele-
gated authority are preferable to the threats of highwaymen.
134 F. Viola

Kelsen believes that the limits of a theory of law are constituted by the Basic
Norm and that its purview should not extend to the consideration, or thematization,
of the reasons for the necessity, or even the appropriateness, of the governance of a
society by valid rules conferring on legal organs the authority to make law. In this
sense, the theory is pure, namely, independent of the legal practice in which law is
in fact steeped in value judgments, ideologies and the actions and intentions of the
legislative and adjudicative institutions. The pure doctrine must break free from
value judgments that, with their accompanying relativism, would destroy the scien-
tific basis of the theory. The elimination of the value judgments internal to legal
practice is not, however, the same operation as the elimination of the reasons for the
very existence of this practice.
While admitting that, in its application, law is intertwined with non-legal ele-
ments, the reasons why law exists cannot be excluded from the concept of law
without the latter losing its strictly normative justification and, thus, its meaning.
The acts of will that posit norms as empowered by higher norms must be distin-
guishable from senseless actions, and included among those worth enacting and
endowed with a worthwhile purpose, because they are functional to a normative
order that a society requires in order to organize itself on the basis of the principle
of legality.
One can place into question whether this is the best way to organize social life
and also whether the Pure Theory is the most coherent and effective description of
the structure of positive law. Nonetheless, the theorist will continue to be guided by
the reasons why it is better that a society should be governed by law rather than by
unempowered acts of an arbitrary will. The statements of a legal theory will not be
able to be completely detached from commitment to law.24
For its part, the Pure Theory shows an appreciation of law that is perhaps even
excessive, so much so as to hold that it must find its justification in itself, and not
within the general goals of social life and the problems of social coordination. If law
is a means or a specific social technique as Kelsen himself defines it (Kelsen
1941) then the reasons for which law exists will have to be part of its concept.
However, one must not identify the latter consideration with the purely instrumental
use of practical reason.
It could be said that, even if our desires were entirely irrational, the instrumental
role of practical reason, which strives to find the most rational means to realize
those desires, would remain valid. Nevertheless, Kelsen rightly denies that this way
of conceiving practical reason has a truly normative character.25 But this is not the
case because, in law, the aspiration to legality as a value is a rational desire that
confers normativity on legality as a social means or technique. However, for the
sake of the argument, it could also be said that if, following Hume, one maintains
the essential irrationality of ultimate goals, this still does not deny that one has a

24
On this theme cf. Raz 1998.
25
The saying Who wills the end, must will the means is the answer to the question What must
I do in order to realize a certain end?, and this is a different question from What ought I to do?
(Kelsen 1991, 9).
7 Hans Kelsen andPractical Reason 135

prevailing reason to do what effectively promotes the realization of the ultimate


desire, rather than the penultimate one or any other before (Cullity and Gaut 1997,
8).
The concept of law to which reference is made here indicates an orientation of
value, still very indefinite, in which the search for the means contributes to its fur-
ther determination and specification, often in a controversial way. While searching
for the means, practical reason confers shape and ascription to the goals.

7.12 The Practical andtheMoral Perspective

These basic reasons of the legal undertaking are practical reasons. The practical
perspective must not be confused with the moral perspective nor with traditional
natural law (cf. Murphy 2001). That an action is generally worth pursuing, and that
it is reasonable to establish a social order respectful of the conditions of agency, still
does not entail that it is morally or legal binding. It only means that we have entered
the field of the Ought which is governed by practical reasoning aiming at establish-
ing the practical principles in the best, most correct or most appropriate way to
justify the task to be undertaken.
Without this basic practical dimension, understanding of social orders, institu-
tions and norms would be quite impossible. One cannot adequately comprehend
things produced by anindividuals work without having in mind the reasons and the
goods that with them one intends to pursue. We cannot understand a social practice
if we do not know its reasons and the objectives it proposes that justify the norms
and the limitations of human freedom, which are sometimes very serious. As we
know, with law forms of coercion are introduced and are considered legitimate.
They require a high degree of practical justification establishing the practical need
for well-defined and controllable procedures. It cannot be maintained that the
dynamic aspect of law (Kelsen 2005, 205220; 267278), considered as a whole,
can replace this practical justification because, even if it is more sophisticated, it
continues to be a technique or procedure like others and as such needs an external
justification.
The evolution of contemporary law, marked by the primacy of constitutional
principles and by the protection of human rights, has further underlined the central-
ity of legal reasoning, namely, of the perspective of practical reason, for legal theory
itself. Kelsen certainly did not deny that, in practice, law is subject to the influence
of ethical, political and social elements. Nevertheless, if all this is inevitable in prac-
tice, one has to wonder why legal theory never has to extend its domain of reflection
to encompass these elements. In the insistence upon the value of scientific reason is
it permitted to eliminate or marginalize all aspects that escape its grasp?
136 F. Viola

For Aristotle, sciences are both those that can always exhibit valid demonstra-
tions and those that in most cases reach valid conclusions.26 It is true that he distin-
guished practical philosophy, which deals with principles, namely, the goals, and
therefore has a universal object, from phronesis which, dealing with means, has the
character of opinion and contingency, just as particular actions, that are the fruit of
deliberations and not of real demonstrations, are contingent. Nevertheless, the close
connection between goals and means makes this distinction very subtle (cf. e.g.
Aubenque 2014), also because the raison dtre of practical science is only realized
when orientation towards a good goal is followed by the capacity to identify the
most suitable means for its realization.

7.13 Conclusion

In conclusion as Finnis notes law belongs to that kind of thing for which we
must first answer the question Why, if at all, should we have it? before addressing
the question What is it? (Finnis 2003, 129).
Practical reason, therefore, presents a description of the Ought which furnishes
an alternative to that of Kelsen. It aspires to be an integral part of a theory of law in
which it is constitutive of the Ought in general and of law in particular. The attempt
to explain normativity through a prior exclusion of all reference to practical reason
is a hopeless enterprise. It leads the theory of law to forgo a comprehensive under-
standing of the essential purpose of law, confining itself to projects of sophisticated
research in selected areas that are surely helpful and often admirable, but norma-
tively inert and effectively inconclusive.
John Gardner, from a positivistic perspective, has recognized that strictly speak-
ing legal positivism is a thesis only about the conditions of legal validity (Gardner
2001, 224), but the question remains open of whether and when the valid legal
norms are also worth following or obeying, namely, when they are normatively alive
or active. Can we say that a legal theory is also complete without the answer to this
second question in relation to which legal positivism is in itself entirely agnostic
(Ibid 225)?
The failure of the Kelsenian conception of normativism, particularly evident in
his last work, is the confirmation that exclusion of the cognitive capacity of practical
reason prevents the configuration of a third way between the facticity thesis of tra-
ditional legal positivism and the normativity thesis of natural law doctrine. However,
it is not only a matter of admitting a different form of knowledge from the theoretical-
descriptive one but also, and moreover, of challenging the starting point of a theory

26
However, Kelsen does not take in account this epistemological difference when he examines the
close connection, in Aristotelian thought, between metaphysics and politics. He understands the
dualism between the best constitution in itself and the more suitable constitution as an ambiguity
(Kelsen 1937).
7 Hans Kelsen andPractical Reason 137

of law, which is, in turn, to place into question whether it originates in norms or in
action, in authority or in agency.
The normativity of law does not coincide with the centrality of norms if they are
presented as entirely inert, ideal entities produced by a process of cognition. It
requires the recognition of the centrality of goods and values whose evaluation is
submitted to examination by processes of reasoning and public deliberation in order
to determine the criteria of judgment that are to be the guide for action. Reason, as
practical reason, should be based not on norms or even on desires but, rather, on
justified values (see Heuer 2004). Hence, the normativity of law has to be funda-
mentally detached from the framework of Kelsenian normativism whether that of
legal science of positive law or of the final, posthumous General Theory of Norms.
For these reasons the normativity of law has not to be identified with Kelsenian
normativism.

References

Alexy, Robert. 1978. Theorie der juristischen Argumentation: Die Theorie des rationalen
Diskurses als Theorie der juristischen Begrndung. Suhrkamp: Frankfurt a. M.
. 1987. Rechtssystem und praktische Vernunft. Rechtstheorie 18 (4): 405419.
Atienza, Manuel. 2013. Curso de argumentacin jurdica. Madrid: Trotta.
Aubenque, Pierre. 2014. La Prudence chez Aristote. 6th ed. Paris: Presses Universitaires de France.
Bjarup, Jes. 2013. Kelsen and Hgerstrm: Clearing up Misunderstandings and Mapping out the
Common Ground. In Kelsen Revisited. New Essays on the Pure Theory of Law, edited by Lus
Duarte dAlmeida et al., 163194. Oxford: Hart Publishing.
Cathrein, Victore. 1945. Philosophia moralis in usum Scholarum (1893). Barcelona: Herder.
Celano, Bruno. 1990. Dover essere e intenzionalit. Una critica allultimo Kelsen. Turin:
Giappichelli.
. 1998. Norm Conflicts: Kelsens View in the Late Period and a Rejoinder. In Normativity
and Norms. Critical Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and
Bonnie Litschewski Paulson, 343361. Oxford: Clarendon Press.
Conte, Amedeo G. 1998. Hans Kelsens Deontics. In Normativity and Norms. Critical Perspectives
on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 331341.
Oxford: Clarendon Press.
Cullity, Garrett, and Berys Gaut, eds. 1997. Ethics and Practical Reason. Oxford: Oxford
University Press.
dAlmeida Lus, Duarte, John Gardner, and Leslie Green, eds. 2013. Kelsen Revisited. New Essays
on the Pure Theory of Law. Oxford: Hart Publishing.
Duxbury, Neil. 2007. The Basic Norm: An Unsolved Murder Mystery. LSE Law, Society and
Economy Working Papers 17: 110.
Finnis, John. 2003. Law and What I Truly Should Decide. The American Journal of Jurisprudence
48: 107129.
Fuller, Lon L. 1955. Freedom: A Suggested Analysis. Harvard Law Review 68 (8): 13051325.
. 1969. The Morality of Law, revised edition. New Haven/London: Yale University Press.
Gardner, John. 2001. Legal Positivism: 5 Myths. The American Journal of Jurisprudence 46:
199227.
138 F. Viola

George, Robert P. 2000. Kelsen and Aquinas on the Natural-Law Doctrine. Notre Dame Law
Review 75: 16251646.
Guastini, Riccardo. 2013. The Basic Norm Revisited. In Kelsen Revisited. New Essays on the Pure
Theory of Law, edited by Lus Duarte dAlmeida et al., 6374. Oxford: Hart Publishing.
Hartney, Michael. 1993. The Death of Practical Reason in Kelsens Later Philosophy. In Praktische
Vernunft, Gesetzgebung und Rechtswissenschaft, edited by Waldemar Schreckenberger and
Christian Starck, 7782. Stuttgart: Steiner Verlag.
Heuer, Ulrike. 2004. Reasons for Actions and Desires. Philosophical Studies 121: 4363.
Jodl, Friedrich. 1906. Geschichte der Ethik als philosophische Wissenschaft. 2nd ed. Stuttgart/
Berlin: Cotta.
. 1908a. Lehrbuch der Psychologie. Vol. 1. 3rd ed. Stuttgart/Berlin: Cotta.
. 1908b. Lehrbuch der Psychologie. Vol. 2. 3rd ed. Stuttgart/Berlin: Cotta.
Kelsen, Hans. 1911. ber Grenzen zwischen juristischer und soziologischer Methode. Tbingen:
Mohr.
. 1923. Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze.
2nd ed. Tbingen: J.C.B. Mohr.
. 19271928. Naturrecht und positives Recht: eine Untersuchung ihres gegenseitige
Verhltnisses. Internationale Zeitschrift fr Rechtstheorie 2: 7194.
. 1928. Die Idee des Naturrechtes. Zeitschrift fr ffentliches Recht 7: 221250.
. 1933. Die platonische Gerechtigkeit. Kant-Studien 38: 91117.
. 1937. The Philosophy of Aristotle and the Hellenic-macedonian Policy. International
Journal of Ethics 48 (1): 164.
. 1941. The Law as a Specific Social Technique. The University of Chicago Law Review 9:
7597.
. 1949a. Natural Law Doctrine and Legal Positivism (1928), 389446. In General Theory
of Law and State. Trans. Kraus, W.H. Cambridge, MA: Harvard University Press.
. 1949b. The Natural-Law Doctrine Before the Tribunal of Science. The Western Political
Quarterly 2 (4): 481513.
. 19551956. A Dynamic Theory of Natural Law. Louisiana Law Review 16: 597620.
. 1960a. Plato and the Doctrine of Natural Law. Vanderbilt Law Review 14: 2364.
. 1960b. Das Problem der Gerechtigkeit. In Reine Rechtslehre, 355444. Vienna: Franz
Deuticke Verlag.
. 1973. Foundation of the Natural Law Doctrine (1963). Trans. C.G. Mayer. Anglo-
American Law Review 2: 83111.
. 1991. General Theory of Norms (1979). Trans. M. Hartney. Oxford: Clarendon Press.
. 1992. Introduction to the Problems of Legal Theory (1934). Trans. B. Litschewski Paulson
and S.L. Paulson. Oxford: Clarendon Press.
. 1998. Foreword to the Second Printing of Main Problems in the Theory of Public Law
(1923) (Trans. Litschewski Paulson, B. and Paulson, S.L.). In Normativity and Norms. Critical
Perspectives on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski
Paulson, 322. Oxford: Clarendon Press.
. 2005. Pure Theory of Law (1960). Trans. M. Knight. Clark: The Lawbook Exchange.
Murphy, Mark C. 2001. Natural Law and Practical Rationality. Cambridge: Cambridge University
Press.
Pattaro, Enrico. 1974. Die italienische Rechtspositivismus von der Wiedergeburt zur Krise.
Rechtstheorie 5: 67106.
Paulson, Stanley L. 1992a. Kelsens Legal Theory: The Final Round. Oxford Journal of Legal
Studies 12 (2): 265274.
., ed. 1992b. Hans Kelsen und die Rechtssoziologie: Auseinandersetzung mit Hermann U.
Kantorowicz, Eugen Ehrlich und Max Weber. Aalen: Scientia Verlag.
7 Hans Kelsen andPractical Reason 139

Raz, Joseph. 1998. The Purity of the Pure Theory. In Normativity and Norms. Critical Perspectives
on Kelsenian Themes, edited by Stanley L. Paulson and Bonnie Litschewski Paulson, 237252.
Oxford: Clarendon Press.
Rodriguez-Blanco, Veronica. 2014. Law and Authority under the Guise of the Good. Oxford: Hart
Publishing.
Rundle, Kristen. 2012. Forms Liberate. Reclaiming the Jurisprudence of Lon L Fuller. Oxford:
Hart Publishing.
Sigwart, Christoph. 1904. Logik. 3rd ed. Tbingen: Mohr.
Thorton, Mark T. 1982. Aristotelian Practical Reason. Mind 91: 5776.
Tur, Richard, and William Twining, eds. 1986. Essays on Kelsen. Oxford: Clarendon Press.
Vinx, Lars. 2007. Hans Kelsens Pure Theory of Law. Legality and Legitimacy. Oxford: Oxford
University Press.
Viola, Francesco. 2003. Action, Authority and Authorization: Starting from Hobbes. Hobbes
Studies 16: 314.
Westberg, Daniel. 1994. Right Practical Reason. Aristotle, Action, and Prudence in Aquinas.
Oxford: Oxford University Press.
Wiland, Eric. 2002. Theories of Practical Reason. Metaphilosophy 33 (4): 450467.
Chapter 8
Kelsen andLegal Interpretation

Isabel LifanteVidal

Abstract In this paper I highlight some of the problems of the Kelsenian concep-
tion of legal interpretation. The analysis has two main theses. The first maintains
that Kelsen has no unitary concept of legal interpretation because with these words
he would refer to very different activities which cannot be gathered in a unitary
understanding. The second thesis not completely independent from the former is
that Kelsen would not even have a unitary concept of the indefiniteness of Law.
Finally, I try to offer an explanation for this deficient portrayal of interpretation
given its central position for the understanding of Law. This explanation is based on
Kelsenian moral skepticism, which also lies at the centre of his claim of the purity
of a legal theory.

8.1 Introduction

Kelsen is, without doubt, one of the most influential Law theorists of the Twentieth
Century. As Moreso has emphasized (2012: 99), his contribution is relevant in two
ways: it affects the nucleus the fundamental questions of the Theory of Law and
it extends to all areas of that theory (such that few subjects were not encompassed
by Kelsens theoretical approach). This has not prevented practically all of his ideas
from being subject to criticism, although this, in turn, may also indicate the endur-
ing significance and importance of his work.
The aim of this paper is to present some of these criticisms, particularly those
relating to a very specific aspect of his work: his conception of legal interpretation.
Kelsen devoted relatively little attention to this subject. Nevertheless, his contribu-
tions have formed an unavoidable basis for some of the most widely accepted con-
ceptions of legal interpretation: the idea that a framework of meanings exists, the
distinction between the cognitive and volitional moments, the omnipresence of
interpretation, and so forth. In this chapter, it is my intention to put forward a
hypothesis to explain some of the problems posed by Kelsens concept of

I.L. Vidal (*)


Faculty of Law, Department of Philosophy of Law and Private International Law,
University of Alicante, Alicante, Spain
e-mail: Isabel.Lifante@ua.es

Springer International Publishing AG 2017 141


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_8
142 I.L. Vidal

interpretation. In order to do this, I will need to make a connection between his


theory of interpretation and some of his more general ideas regarding his concep-
tion of Law (normative positivism) and his fundamental methodological assump-
tions: the great divide between what is and what ought to be, ethical
non-cognitivism and the ideal of the non-evaluational purity of legal science.
The essential elements of Kelsens approach to legal interpretation remain essen-
tially unmodified throughout the different periods into which work can be divided.1
The majority of these elements are to be found in The Pure Theory of Law. In its first
edition (1934), he reproduces the text of an article of the same year entitled Zur
Theorie der Interpretation, and dedicates a chapter, midway through the book,
entirely to interpretation (after explaining how the legal system is hierarchically
structured and before analysing the methods of creation of Law). The French ver-
sion of this book of 1953 (which constitutes a review of the first edition) makes
no changes to this subject. The second edition of 1960 retains the separate chap-
ter dedicated to interpretation with minor changes to its content. Perhaps the most
significant change is represented by the position of the chapter within the work as a
whole. In this second edition, the chapter dedicated to interpretation, chapter VIII,
is moved to the end of the book and, in this repositioning, seems to indicate that it
is considered to be a subsidiary subject, disconnected, for example, from the sys-
tematization he applies to the dynamic and static aspects of the Theory of Law. Still,
on the subject of his systematisation, it is noteworthy that the treatment given to
legal gaps which, in the first edition, was included in the chapter dealing with inter-
pretation, is now moved to the section dealing with legal dynamics. Lastly, I will
also refer to a text drafted by Kelsen in 1949. I refer to the Preface, entitled On
interpretation in his book The Law of the United Nations.2 This text is of great
relevance since, although it leaves unaltered the theses upheld in Pure Theory of
Law, it is intended to clarify how laws are to be applied and this will help to high-
light some of the problems of his theory.
This chapter will revolve around two theses. The first maintains that Kelsen, in
reality, does not have a concept of legal interpretation but, rather, uses that title to
refer to various activities which cannot be typified unitarily. The second thesis
which is not disconnected from the first maintains that Kelsen also lacks the
capacity to conceptualize indefiniteness within a theory of law. By way of a conclu-
sion, I will claim that this lack of characterisation of an activity of such relevance
for a clear understanding of Law, which is that of its interpretation, can be explained
by Kelsens skepticism which, in turn, is the basis for his defence of purity in legal
science.

1
Paulson (1990) nevertheless considers that three stages can be seen in Kelsens interpretation of
the Law.
2
Kelsen (1949: xiiixvii).
8 Kelsen andLegal Interpretation 143

8.2 Two Kinds ofLegal Interpretation?

The first idea which I will defend is that Kelsen does not have a one-dimensional
concept of legal interpretation. It is usual to consider that, for Kelsen, legal interpre-
tation is a process of establishing the sense of a legal norm: interpretation is defined
as being an intellectual activity, which accompanies the process of law application
in its advance from a higher to a lower level (Kelsen 2005: 348). However, that is
a definition that includes only one of the two types of interpretation which he distin-
guishes, the authentic one, since it contains the element that characterises that
type of interpretation: the fact of carrying out the process of applying the Law. For
Kelsen, two types of interpreting activity must be clearly distinguished: authentic
interpretation is that carried out by the bodies applying the Law; and nonauthentic
interpretation, which is defined by exclusion: interpretation which is not carried out
by bodies applying the Law. As we can see, the criterion for classification is, at least,
on the surface, determined by the person who carries out the process of
interpretation.
Let us begin with authentic interpretation. For, before considering the question
of the application of a legal norm, the sense of this particular norm requires clarifi-
cation. That is to say, it must be interpreted. Kelsen considers that interpreting activ-
ity that designated as authentic is always an act of will, the creation of Law;
since, in all cases, there are several possible ways to interpret within the relevant
Law which is applicable; which, therefore, functions as a framework that is open to
various options. Given that interpretation is understood to determine the meaning of
the legal norm to be applied,3 this activity will be necessary in all cases of applica-
tion of the Law, namely, at all levels of the legal system. The determination which
the higher Law makes of the lower is never complete. At all levels of the legal sys-
tem, there is both a level of application, given that higher Law determines a broad
range of possibilities, and one of creation; since, within this range, one option must
be chosen by discretion.4 The differences between the legislative and judicial pro-
cesses are only quantitative since, in both cases, there is both creation and applica-
tion of Law. At one point, Kelsen, in the text of 1949, indicates that a distinction can
be made between a general authentic and an individual authentic interpretation. The
first occurs when the legislator formally defines the meaning of a legal norm in a
general manner (placing all law-applying organs under an obligation), while indi-
vidual authentic interpretation would arise when a definition derives from a law-
applying organ for a specific case, that is to say, by a court as part of its ruling. For
Kelsen, however, it is a case of the same type of activity (although the degree
though not the nature of discretion is different in each case), and there are

3
This has been criticised, by some authors, such as Troper, who believes that there is no sense in
considering a law to be the meaning of an act of will and, at the same time, to speak of the meaning
of a law (Troper 1981: 251). I have dealt with this criticism in Lifante Vidal (1999).
4
The exceptions to this duality between creation and application can be found at both ends of the
pyramid: at the apex (the drawing up of the constitution) we only find creation of Law; while at the
base (application of rulings by administrative bodies) there would only be application.
144 I.L. Vidal

d ifferences only in regard to the effects of that activity. The body applying or creat-
ing Law must choose from one of the possibilities within the framework of available
meanings. The function of authentic interpretation is not to determine the true
meaning of the legal norm but to make one of the meanings of the legal norm oblig-
atory, from among all those which are equally possible from a logical point of
view.5 This choice, in the act of creating Law, is determined by political motives.
As Kelsen observes:
[t]he idea on which the traditional theory of interpretation is based, namely, that the deter-
mination (of the legal act to be performed) not rendered by the norm that is to be applied
could be gained by some cognition of the existing legal norm, is a contradictory fallacy
because it is incompatible with the presupposed possibility of an interpretation. The ques-
tion of which of the possibilities within the frame of the legal norm to be applied is the
right one is not a question of cognition directed toward positive law we are not faced
here by a problem of legal theory but of legal politics. The task to get from the statute the
only correct judicial decision or the only correct administrative act is basically the same as
the task to create the only correct statutes within the framework of the constitution. Just as
one cannot obtain by interpretation the only correct statutes from the constitution, so one
cannot obtain by interpretation the only correct judicial decisions from the statute. To be
sure, there is a difference between these two cases, but it is only one of quantity, not of qual-
ity; the difference is merely that the constraint exercised by a statute upon the judge who
has to apply this statute that the legislator is much freer in creating law than the judge. But
the judge too creates law, and he too is relatively free in this function. (Kelsen 2005: 353)

On the basis of this critique of the traditional conception, Kelsen asserts that
interpretation, as a legal function is only possible through authentic interpreta-
tion. Any other type of interpretation of a legal norm would, for him, be an intel-
lectual activity which may have great influence on the law-making and law-applying
function, but has no legal importance in itself (Kelsen 1949: xv). In accordance
with this idea, Kelsen defines the second type of interpretation, non-authentic inter-
pretation, by exclusion. It would include all interpretation not carried out by bodies
applying the Law. In this way, it would extend to interpretations made by individu-
als affected by the Law (the individual who wishes to obey a legal norm must inter-
pret it) and to those made by lawyers and legal theorists. Amongst these
interpretations, is the one carried out by legal science, the so-called scientific inter-
pretation, which is Kelsens central concern and to which he devotes particular
attention in order to delineate it more specifically.
Kelsens overriding purpose is, of course, to formulate and construct a pure
Theory of Law, namely, a theory which is uncontaminated by any influence outside
the Law itself, be it from the field of morality, sociology or psychology. It is within
this framework that he situates his idea that the science of Law should limit itself to
knowing the various meanings of a legal norm without favouring, under any cir-
cumstances, any of them; the task given to legal science in this area is, thus, config-
ured as a merely cognitive operation. The science of Law should limit itself to

5
In this sense he even goes so far as to say Authentic interpretation may even attribute to a legal
norm a meaning which a non-authentic interpretation could never dare to maintain. That is to say,
by authentic interpretation a legal norm may be replaced by another norm of totally different con-
tent (Kelsen 1949: xv).
8 Kelsen andLegal Interpretation 145

describing the various possible meanings of a legal norm, even those not foreseen
by the body which undertook its initial definition (or the contracting parties) but
which are included in its literal content.
The predominant presumption of many academic lawyers, in their analyses of
Law, is not only to indicate all possible interpretations of a legal norm but also a
tendency to present one of them as the most suitable, or even as the only acceptable
one. In this sense, it is possible to understand Kelsens conception as one intended
as guidance for legal science which offers an ideal model and is not orientated by
the concern to describe the reality of legal interpretation. Hence, Kelsen prescribes
(at the level of legal theory or meta-jurisprudence) description (at the level of legal
science or jurisprudence) (Ruiz Manero 1990, 33). For Kelsen, the negative aspect
of the self-understanding of the practice of legal interpretation is the dogma of its
scientific character: it should not be presented as a scientific presentation of positive
Law, when it is merely the selection of a particular interpretation reflecting the
operation of a subjective, political standpoint. Kelsen emphasizes that, even if one
accepts the dogma and its practical consequences, the possible advantages of con-
sidering legal interpretation in this manner (a notion of scientificity which, in order
to maintain the ideal of legal certainty, would already entail the presupposition of a
fictional clarity of the Law) would be outweighed by its negative consequences: it
would avoid demonstrating the technical and legal errors committed during the
stage in which the Law is produced and, therefore, would reduce the possibility of
their correction (Kelsen 2005, 356). This critical analysis is accompanied by
Kelsens insistence that the idea that procedures exist by way of which the correct
interpretation of a legal norm can be known, that behind the interpretation of the
legal norm there is nothing other than a single possible decision, is a dangerous
fiction.
While acknowledging this critical, Kelsenian position in relation to the dogma of
scientificity in legal interpretation, which is combined with his thesis, itself reaf-
firmed on a number of occasions, that scientific interpretation should be limited to
the cognitive task of indicating all the different meanings to be accorded to a legal
norm, Kelsens position is not particularly consistent, as it also includes the pres-
ence and adherence to other opposing theses. Here I am referring, for example, to
when he places the responsibility for systematising the Law upon the act of interpre-
tation as a cognitive activity. In this respect, when he speaks of the contradictions,
in the section relating to the dynamic aspect of Law, Kelsen states:
But since the cognition of Law, like any cognition, seeks to understand its subject as a
meaningful whole and to describe it in non-contradictory statements, it starts from the
assumption that conflicts of norms within the normative order which is the object of this
cognition can and must be solved by interpretation. (Kelsen 2005, 206. My emphasis)

Resolving contradictions in order to present Law in a coherent manner appears


to demand somewhat more than showing the various meanings which might be
accorded to a legal norm; this activity implies selecting one from among them as
being the most coherent with the other legal norms. However, Kelsen appears to
waiver between this more ambitious function and the more limited one for legal
146 I.L. Vidal

s cience. And so, when he discusses scientific interpretation, in the chapter on inter-
pretation, he denies its role of filling gaps by constituting it as a merely intellectual
operation; which also seems to be fundamental in order to present Law as a system.
From what we can derive from the context, this task would correspond to authentic
interpretation: the sole creator of Law (Kelsen 2005, 355).
From this double definition, in which authentic interpretation is an act of will and
non-authentic interpretation (specifically scientific interpretation) is an act of
knowledge, it can be seen that Kelsen is not effectively referring to a single activity,
albeit carried out by two different subjects, but, instead, the reference is to distinct
activities. Or, formulated in a slightly different manner, it would be a case of two
senses of the term interpretation and not so much of two types of interpretation,
which would then, in turn, presuppose the existence of a common genus to which
both belong and which does not appear to exist in Kelsens work. Another possible
way to understand these two types of interpretation would be to regard them as
two different moments of interpreting activity. In this way, one could conceive inter-
pretation as a cognitive activity, determining the framework of meanings, is the
stage which preceeds the stage of selecting one of the possible meanings, namely,
interpretation as an act of will. This manner of understanding appears to offer a
coherent reconstruction of Kelsens approach. It, however, remains undeveloped in
Kelsens work. I will return later to this lack of a unitary concept of interpretation.

8.3 The Omnipresent Indefiniteness ofLaw

The second observation concerns the theory that in all cases where Law is applied
we find the phenomenon of indefiniteness: the existence of an open framework of
interpretative possibilities from amongst which the law-applying organ must select.
I will attempt to demonstrate that this theory is not sufficiently justified in Kelsens
work and that this leads us to reexamine Kelsens underlying conception of
indefiniteness.
Kelsen states that the indefiniteness presented by all legal norms might affect
either the conditioning fact or the conditioned consequence. On the other hand, and
independently of what is affected, indefiniteness can be of two types, depending on
whether it was brought about intentionally or unintentionally (Kelsen 2005, 349ff).
Let us take a look at the peculiarities of these two types of indefiniteness.
In the case of indefiniteness that has been willingly sought by the body which
created the legal norm, Kelsen provides two examples. In the first, the law-applying
organ is empowered to fill the indefiniteness affecting the conditioning fact:
A law prescribes that at the outbreak of an epidemic the inhabitants of a town have to take,
by pain of punishment, certain measures to prevent the spreading of the disease, the admin-
istrative authority is authorized to determine the various measures according to the various
diseases. (Kelsen 2005, 349350)
8 Kelsen andLegal Interpretation 147

In the second example, the legal norm permits the applying body to establish the
concrete conditioned consequence:
A criminal law provides in case of a certain delict a fine or imprisonment leaving it to the
judge to decide in the concrete case for the one or the other, and also to determine the extent
of either; whereby the law may provide an upper and a lower limit. (Kelsen 2005: 350)

Here, if examine and analyze, we are considering cases where the very legal
norm which is the object of interpretation grants the body charged with its applica-
tion (jurisdictional or administrative body) the power to select from amongst a range
of possibilities when deciding upon either the conditioning fact or the conditioned
consequence.
But it is Kelsens thesis that, even in the case where indefiniteness was not sought
by the legislator, it appears in all cases. The reason for this can be found in the
defects affecting legal norms originating in technical errors occurring at the stage of
the formulation process. Kelsen mentions three of these defects6: ambiguity (the
lack of clarity of the linguistic sense), discrepancy between the text of the legal
norm (its linguistic expression) and the will of the legislating authority expressed by
way of the same,7 and partial or total contradiction between two legal norms with
the intention that they are both valid at the same time.8
From here, we can ask ourselves whether Kelsen has truly justified his theory of
the omnipresence of indefiniteness in Law when it is applied. It would appear that
with the category of intentional indefiniteness, Kelsen does not intend to cover all
cases.9 If this is correct, in order to justify the thesis that some degree of indefinite-
ness always exists, he would, in turn, have to justify that unintended indefiniteness
encompasses all cases not covered by intentional indefiniteness. Since it appears
that no relationship can be found between one type of indefiniteness and the other
(since the second is precisely non-intentional or unwitting), it must be estab-
lished that unintended indefiniteness itself encompasses all possible cases.
The origin of unintended indefiniteness appears to result from technical faults
that law-making bodies might make during the law-making process. We are, there-
fore, considering defects which are remediable and that, as such, should be attempted
to be overcome. What would happen if these errors were to disappear or their num-
bers were simply reduced? It would appear that the fact that they are inaccuracies of
a technical nature is precisely what makes it necessary to recognise them as being

6
Although it is not specifically expressed that this is a final number, that is the conclusion at which
one can arrive, at least apparently, from his text (Kelsen 2005, 350).
7
Kelsen admits that is not easy to determine what the will of the legislator is (or, for example of the
parties in a legal case) but he considers that, despite the difficulties posed thereby, one cannot rule
out the possibility of investigating such a will using sources other than linguistic expression itself.
cf. Nez Vaquero (2011).
8
Kelsen hardly pays any attention to this third defect in this chapter dedicated to interpretation; he
limits himself to making a slight reference to it and does not even go so far as to indicate how this
defect works as a cause of indefiniteness.
9
Cf. In this sense Kelsen (2005, 350), where he states that the indefiniteness can be intentional
(My emphasis).
148 I.L. Vidal

worthy of consideration. Indeed, Kelsen introduces a certain degree of inconsis-


tency and uncertainty into his own theory; as there are certain instances in which he
appears to acknowledge that, in some cases (but not necessarily all), there are vari-
ous possibilities of interpretation. So, when he argues in favour of his thesis that
applicable Law is always a mere framework within which there is capacity for vari-
ous interpretative possibilities, this extends to the acknowledgement that:
The interpretation of a statute, therefore, need not necessarily lead to a single decision as
the only correct one, but possibly to several which are all of equal value (Kelsen 2005,
351. My emphasis)

Also:
The fact that the legal norms as formulated in words having frequently more than one mean-
ing (Kelsen 1949, xiv)

Bulygin (1995) has attempted to rescue the Kelsenian theory of omnipresent


indefiniteness through recourse to arguments relating to the phenomenon of vague-
ness of language.10 However, even if we consider that vagueness is a quality of all
language, and is present to a greater or lesser extent in all terms or linguistic expres-
sions (and, therefore, in legal expressions), this does not imply that one should
admit that in all specific cases problems of indefiniteness will arise due to this
vagueness, since what more precisely characterizes vague terms is that they have a
central nucleus (in which the application is clear) and a periphery (greater or lesser
depending on the degree of vagueness). Hence, problems of indefiniteness only
arise in those cases which are contained within the periphery and have no inherence
in those cases which can be held to be contained in the nucleus of the concept. Thus,
any norm may generate a problem of indefiniteness in some future cases but not all
cases of applying the Law will be imprecise.
If, on the basis of these observations, we reconsider Kelsens definition of indefi-
niteness in Law, it becomes clear that the two types of indefiniteness he distin-
guishes (intentional and unintended) refer to two completely different phenomena.
Intentional indefiniteness refers to those cases where legal norms (due to the will of
their creators), either expressly or implicitly, empower the bodies charged with
applying them (legal, administrative, or even legislative bodies) to resolve this
indefiniteness of either the conditioning facts or the conditioned consequences.
These cases leave a margin of discretion to the applying body (for example, the
Judge may opt to impose, from within a range designated maximum and minimum
sentence, a sentence of 6 months and 1 day, 7 months or 8 on a criminal; or
choose to adopt one measure or another to control an epidemic). However, this has
only a minimal connection with the existence of various possibilities of interpreta-
tion; namely, with various meanings which can be given to a legal norm. The norm

10
Bulygin would agree with Kelsens basic theory: in all cases there exists indefiniteness in the
legal norm to be applied, although he also admits thus admitting that Ruiz Manero (1990) is
right that Kelsen has not sufficiently justified his position. The argument that Bulygin relies upon
in order to render Kelsens theory coherent is that of the vagueness of all legal norms (Bulygin
1995).
8 Kelsen andLegal Interpretation 149

may have established clearly that it is the lower body, in the hierarchy of the legal
system, that must decide upon the measure to be adopted; it may have indicated,
with no possibility for doubt, that the administrative body has the duty, for example,
to adopt measures to avoid an epidemic spreading, and it may be that we confronted
with a clear case of an epidemic to which we have no doubt that the norm should be
applied. Thus, to overcome this type of indefiniteness, in order to determine what
measures to take in a specific case, the activity required is not one of interpreting the
legal norm, since it is not a case of a problem of indefiniteness of the meaning to be
attached to the norm.11 It would appear that from this type of indefiniteness that a
multitude of possible interpretations do not arise in relation to which one must
select in order to make a legal resolution which resolves a specific case (in our
example the specific epidemic faced by the administrative body).

8.4 Conclusion

From this critical reexamination, it is evident that, for Kelsen, indefiniteness and
interpretation are intrinsically linked in the sense that it is the indefiniteness which
justifies the need to interpret; and, in turn, interpretation, especially authentic inter-
pretation, is conceived precisely as the overcoming of indefiniteness. On the other
hand, we have also seen that when Kelsen speaks of indefiniteness, he is referring
to distinct phenomena and not all of them relate to imprecision or the numerous
potential meanings attributable to a norm. If we connect both ideas, it becomes
obvious that, under the heading authentic interpretation, Kelsen includes activi-
ties which are distant from the usual meaning of this expression and some of which
are even completely unrelated to the activity of attributing or clarifying meanings.
Hence, in regard to the cases of intentional indefiniteness referred to in Kelsens
examples, what is necessary in order to overcome them is an activity of specifying
or developing existing Law. It would, however, not be appropriate to classify this
activity as interpretation. When we speak of interpretation, we are normally refer-
ring to specifying, or reconstructing, the sense of something which already exists;
and, in this sense, justification should be aimed toward the past. While, in those
cases Kelsen mentioned, what happens is that there are certain things which have
not yet been fixed and, therefore, the indefiniteness cannot be overcome by inter-
preting anything. Whatever the degree of specification of the meaning the norm to
be applied, it will continue to be indefinite as to what is the penalty or the specific
administrative measure to be applied. The sense to which Kelsen appears to refer,
where he speaks of interpreting activity, appears to be the adoption of a decision
by the law-applying body: the establishment of the lower, more concrete, norm.
Kelsen appears, therefore, to make authentic interpretation equivalent to the appli-
cation of Law.

I have dealt with this distinction between interpretation activity and the activity of development
11

and precision of the Law, in Lifante Vidal (2006).


150 I.L. Vidal

Let us now consider the other type of interpretation discussed by Kelsen: scien-
tific interpretation. This activity appears to be connected with the existence of vari-
ous possible meanings for a norm, since, as a cognitive activity, it attempts to show
all the possibilities which the superior norm offers when being clarified. However,
through the process of critical reexamination, Kelsens notion of indefiniteness
was revealed to contain phenomena which are unrelated to the existence of a num-
ber of possible meanings (for example, the cases in which the power to individual-
ize a penalty is delegated). It is also that the meanings which must be demonstrated
by scientific interpretation cannot be co-terminus with all the possibilities for indi-
vidualizing the norm (for example, the Judge may impose a penalty of 1000; or
2000; or 2500, etc.). However, this is not the only problem when defining this
type of interpretation, as there then arises the problem of the incoherence to which
Kelsen is subject when the function of scientific interpretation is thematized. On the
one hand, he indicates that this should be limited to showing all the possible mean-
ings of a norm; on the other, he also indicates that, analogously to all forms of
knowledge, it must think of its object as a unity and he, therefore, attributes to sci-
entific interpretation the function of resolving contradictions.
The preceding analysis, permits the conclusion that it is not possible to maintain
that Kelsens theory of Law contains a Theory (either descriptive or normative) of
legal interpretation.12 In his work, we find neither an adequate reconstruction of how
this activity is constituted in the practice of legal and administrative decision-
making nor any coherent proposal for what the very task of interpretation should be.
Kelsen limits himself to defining authentic interpretation, as we have seen, confus-
ing it to a significant extent with the action of applying Law, and scientific interpre-
tation is only dealt with on a subsidiary level, when he indicates that it might be a
necessary instrument for undertaking authentic interpretation, namely, when apply-
ing Law. Kelsens disinterest regarding interpreting activity may, on the surface,
strike one as surprising given Kelsens efforts to cover both the static and the
dynamic aspects of Law. However, it can be more effectively explained once we
consider the concept of Law which Kelsen propounds. Kelsen can be considered to
be one of the leading exponents of normative positivism a concept which presents
Law as a fait accompli: norms created or modified by human acts that can be identi-
fied by criteria which are completely separate from morality. From this point of
view, priority is given to the structural analysis of Law, as opposed to functional or
evaluative, together with the defence of a theory of law based on voluntarism or
prescriptivism, where the validity of legal norms and their interpretation, is merely
a question of will in which reason plays no role. The dynamic aspect of Law is,
therefore, explained exclusively on the basis of will. All this is supported or
explained precisely in the methodological cases from which Kelsen sets out a radi-
cal, ethical emotivism leading him to consider that there can be no rational d iscourse

12
In this same sense, Paulson (1990) affirms that Kelsen lacks both a descriptive theory and a nor-
mative theory of legal interpretation.
8 Kelsen andLegal Interpretation 151

on values and that no logical relationships exist between norms13; this, furthermore,
would mean that legal decisions cannot be justified rationally (in this respect
Kelsens position as to the almost insignificant role of so-called methods of
interpretation is enlightening).
Nevertheless, these presuppositions make it impossible to correctly define inter-
preting activity, which is an intermediate activity between mere knowing, a purely
descriptive activity, and mere decision, understood to be an act of will and not of
reason. In other words, interpreting in general and, more specifically, legal inter-
pretation is never a mere act of knowing (as Kelsen would seek to subsume under
the notion of scientific interpretation) nor is it a mere act of will (as he seems to
imply in the case of authentic interpretation), although it may contain something of
both activities during the various stages or moments in the interpreting process: one
can begin that activity by showing various possibilities which, in turn, will have
been produced by prior interpreting activities, and finish by selecting one of them;
but interpreting is exactly the activity which takes place between these two moments.
This process must also be a reconstructive and reasoned activity that can only be
controlled by practical rational thinking14 which also allows us to demonstrate the
impossibility, and even, perhaps, uselessness, of the purity to which Kelsen aspires
for legal science. Legal reasoning is necessarily an area which is open to, and shaped
by, general practical rationality.

References

Alexy, Robert. 1989. A Theory of Legal Argumentation. The Theory of Rational Discourse as
Theory of Legal Justification (Trans. MacCormick, N. and Adler, R.). Oxford: Oxford
University Press.
Atienza, Manuel. 2013. Curso de argumentacin jurdica. Madrid: Trotta.
Bulygin, Eugenio. 1995. Cognition and Interpretation of Law. In Cognition and Interpretation of
Law, edited by S.L. Paulson and L. Gianformaggio, 1135. Turin: Giapichelli.
Chiassoni, Pierluigi. 1990. Legal Science and Legal Interpretation in the Pure Theory of Law. In
Hans Kelsens Legal Theory. A diachronical point of view, edited by L. Gianformaggio, 6373.
Turin: G. Giappichelli.
. 2012. Il realismo radicale della Teoria Pura del Diritto. Materialli per una storia della
cultura giuridica XLVII (1): 237261.
Dworkin, Ronald. 2011. Justice for Hedgehogs. Harvard: The Belknap Press of Harvard University
Press.
Gavazzi, Giacomo. 1957. Linterpretazione giuridica in H. Kelsen. Rivista Internazionale di
Filosofia del Diritto: 217229.
Guastini, Riccardo. 1989. Hans Kelsen sullinterpretazione. In Lanalisi del ragionamiento
giuridico, edited by P. Comanducci and R. Guastini, 121125. G. Giappichelli editores: Turin.

13
However, this theory, which is generally attributed to Kelsen, must be clarified. Cf. Atienza
(2013,195197).
14
Regarding this, see also Alexy (1989), Atienza (2013), Dworkin (2011), MacCormick (1993),
Nino (1994), amongst others.
152 I.L. Vidal

Kelsen, Hans. 1949. Preface on Interpretation. In The Law of the United Nations: A Critical
Analysis of its Fundamental Problems, edited by Hans Kelsen, xiiixvii. New Jersey: The Law
Exchange.
. 2005. The Pure Theory of Law. Translated (from the second German edition, 1960) by
Max Knight. New Jersey: The Lawbook Exchange.
Lifante Vidal, Isabel.1999. La interpretacin jurdica en la teora del Derecho contempornea.
Madrid: Centro de estudios polticos y constitucionales.
. 2006. Interpretation and Judicial Discretion. In Law, Politics and Morality: European
Perspectives II. On Knowledge and Adjudication of National and European Law, edited by
J.Ferrer and M. Narvez, 89113. Berlin: Duncker & Humblot.
Losano, Mario G. 1980. Il problema dellinterpretazione in Hans Kelsen. In Problemi di teora del
diritto, edited by R. Guastini, 219235. Bologna: Il Mulino.
Luzzati, Claudio. 1990. Discretion and Intederminacy in Kelsens Theory of Legal Interpretation.
In Hans Kelsens Legal Theory. A diachronical point of view, edited by L. Gianformaggio,
123137. Turin: G. Giappichelli.
MacCormick, Neil. 1993. Argumentation and Interpretation in Law. Ratio Juris 6 (1): 1629.
Manero, Juan Ruiz. 1990. Jurisdiccin y normas: dos estudios sobre funcin jurisdiccional y teo-
ra del Derecho. Centro de Estudios Constitucionales.
Moreso, Jos Juan. 2012. Kelsen: certeza del Derecho y prudencia epistmica. In Contribuciones
a la filosofa del Derecho. Imperia en Barcelona 2010, edited by J.J. Moreso and J.L. Marti,
199203. Madrid: Marcial Pons.
Nino, Carlos S. 1994. Derecho, moral y poltica. Barcelona: Ariel.
Nez Vaquero, lvaro. 2011. Hans Kelsen: Preface. On Interpretation. Estudio introductorio.
Eunoma. Revista en Cultura de la Legalidad 1: 173184.
Paulson, Stanley L. 1990. Kelsen on Legal Intepretation. Legal Studies 10: 136152.
Troper, Michel. 1981. Kelsen, la thorie de linterprtation et la structure de lordre juridique.
Revue Internationale de Philosophie 138: 518529.
Chapter 9
Validity andCorrectness inKelsens Theory
ofLegal Interpretation

JosManuelCabraApalategui

Abstract Kelsens two basic ideas on legal interpretation are, on the one hand, its
characterization as a hybrid with both cognitive and volitional elements due to the
partial indeterminacy of law, and, on the other, the relationship between legal inter-
pretation and the structural properties of the legal system (dynamic principle).
Kelsens solution to the problem of irregular norms the so-called tacit alternative
clause not only attracts accusations of decisionism but also seems to render the
question of norm content and, therefore, legal interpretation, within his theory of
law irrelevant. I will argue that a reconstruction of Kelsens thesis which renders it
less open to accusations of irrationalism is possible, starting from his initial intu-
ition regarding legal interpretation. This reconstruction is based on two arguments:
(i) the distinction between the validity of a norm and the fact that the act by which
it is created is a correct interpretation of the higher norm, that is, a non-reductionist
concept of validity; and (ii) a functional interpretation of the determination of the
norm content between the different hierarchical levels of the legal system.

9.1 Legal Interpretation inKelsens Work

Notwithstanding its evident and relevant connection with some central aspects of
the pure theory of law, legal interpretation has a secondary role in the writings of
Hans Kelsen. In fact, it is open to debate whether he develops a theory of legal inter-
pretation at all.1 Moreover, he certainly fails to develop a legal methodology, whose
object is the different methods or arguments of interpretation, their logical structure

The writting of this paper benefited from the funding of the Research Project CONFLICTOS DE
DERECHOS: TIPOLOGAS, RAZONAMIENTOS, DECISIONES (DER2016-74898-C2-1-R)
of the spanish Ministry of Economy and Competitiveness (MEC).
1
According to Stanley Paulson, Kelsen actually lacks of a theory of legal interpretation (Paulson
1990a: 137). However, the theoretical frame of the pure theory of law itself, that is, the positive law
as object of knowledge, restricts the development of such a theory (Mayer 2001: 98).
J.M. CabraApalategui (*)
University of Mlaga, Mlaga, Spain
e-mail: jcabra@uma.es

Springer International Publishing AG 2017 153


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_9
154 J.M. CabraApalategui

or presuppositions (Luzzati 1995: 88; Mayer 2001: 956). Kelsens thesis on legal
interpretation can be better understood as a criticism of the traditional concept rep-
resented by the Begriffsjurisprudenz or Lcole de lexgse, according to which the
one right answer can be reached through interpretation of legal materials (Walter
1983: 188).2 On the other hand, he also explicitly rejects the Freirechtschule or the
American legal realism of radical decisionism.
Kelsens basic ideas on legal interpretation are: first, due to the partial indetermi-
nacy of law, the characterization of legal interpretation is a hybrid, with both cogni-
tive and volitional elements; and, second, the relationship between legal interpretation
and the structural properties of the legal system, i.e., the dynamic principle and the
stepped construction of legal order. Other reasons aside, it is because of this connec-
tion with the dynamic conception and the hierarchical structure of legal systems
features that the pure theory of law never renounces that Kelsens theory of legal
interpretation has suffered so few, if any, modifications (Luzzati 1990: 123; Bulygin
1995: 12; Ruiz Manero 1990: 94).3 In any case, and as the periodization question
seems unavoidable in the context of Kelsens studies,4 we could speak of an evolu-
tion, not in the main thesis on legal interpretation, but in the comprehension of the
consequences that the volitional or decisionist element would cause in the overall
construction, which deeply determines the evolution of Kelsens thought (Paulson
1990a: 140).5
Likewise, this connection with the structural aspects of the pure theory of law
explains that some ideas on legal interpretation can be traced back to early texts
such as the Allgemeinestaatslehere of 1925, in which Kelsen presents a complete
and systematic exposition of the dynamic conception of the legal system. In ques-
tioning the classical distinction between legis latio and legis executio as typical
functions of two different state authorities, those of legislative and judicial
respectively,6 Kelsen diminishes the importance of the opposition between legal
creation and application (Kelsen 1925: 33). At that time, the idea of the indetermi-
nacy of law was barely developed, though it was in a certain manner already implicit.
According to the hierarchical structure of the legal system, law creation is a process

2
Kelsens rejection of the traditional doctrine has not only a theoretical basis as this doctrine
ignores the volitional element that operates in every act of adjudication but also ideological, as it
hides this element, presenting every act of adjudication as being cognitive in nature.
3
Chiassoni, (1990) distinguishes two periods in Kelsens theory of legal interpretation: the first
one, named naive dualism, begins in 1911, with the Hauptprobleme, and extends up to 1934, when
the second period, named critical dualism, begins.
4
See, for example, the debates of Stanley Paulson with Mario Losano (Paulson 1985, 1990a, b, c
and Losano 1985, 1990) and, more recently with Carsten Heidemann (Paulson 1998, 1999 and
Heidemann 1997).
5
However, Paulson differentiates three periods within Kelsens theory of legal interpretation: a first
extending from 1911 to 1934; a second, characterized by the distinction between volitive and cog-
nitive elements in legal interpretation, due to the partial indetermination of law, that is up to the
50s; and a third and last period, in which the balance between cognition and will disappears
(Paulson 1990c: 17880).
6
And, therefore, the classical doctrine of the separation of powers (Kelsen 1925: 37).
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 155

of determination in which each step, that is, each act carried out by a state authority,
is an act of application and simultaneously an act of creation of law, due to the par-
tial indeterminacy of law. If we accept that every act of application of law is, at the
same time, an act of creation of law, it seems that the presence of volitional elements
in legal interpretation must be admitted.
Since its formulation in the 1930s (Kelsen 1934a, b), Kelsens thesis on legal
interpretation has remained unchanged and may be presented as follows:
1. Interpretation is an intellectual activity that accompanies the law-creating pro-
cess as it moves from a higher level of the hierarchical structure to the lower level
governed by this higher level (Kelsen 1934a: 77).
2. In governing the creation of the lower-level norm, the higher-level norm deter-
minates not only the process whereby the lower-level norm is created, but pos-
sibly the content of the norm to be created as well (Kelsen 1934a: 78).
3. This determination, however, is never complete (Kelsen 1934a: 78).
4. Indeterminacy can be directly intended, that is, can be part of the intention of
the authority issuing the higher-level norm (Kelsen 1934a: 78); or indetermi-
nacy can also be the unintended consequence of properties of the norm to be
applied by the act in question (Kelsen 1934a: 79).
5. Because of the indeterminacy, the norm to be applied is simply a frame within
which various possibilities for application are given, and every act that stays
within this frame, in some possible sense filling it in, is in conformity with the
norm (Kelsen 1934a: 80).
6. From the standpoint of the positive law, however, 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 there is simply no
method according to which only one of the several readings of a norm could be
distinguished as correct (Kelsen 1934a: 81).
7. The necessity of an interpretation arises precisely because the norm to be
applied or the system of norms leaves open various possibilities, which is
really to say that neither the norm nor the system of norms provides a decision
This decision is left instead to a future act of norm creation (Kelsen
1934a: 82).
8. [I]t is a function of will to arrive at the individual [lower-level] norm in the
process of applying a statute, provided that the frame of the general [higher-
level] norm is filled in thereby (Kelsen 1934a: 83).
9. As a corollary, two uses of interpretation must be distinguished. The first refers
to a process of identification of all possible meanings of a statement, that is to
say, the frame defined by the legal norm; this is the scientific interpretation. The
second refers to the decision of a legal authority that makes one of the possible
meanings of the norm to become binding; this is the authentic interpretation. The
first is a pure cognitive activity; the second is an act of creation of law according
to the dynamic principle.
156 J.M. CabraApalategui

Thus, Kelsen claims to situate himself midway between the position of one right
answer (which conceives interpretation as an act of pure knowledge) and the
position of radical skepticism (which defends the volitional nature of law applica-
tion) in other words, between cognitivism and decisionism. According to Kelsen,
authentic interpretation comprehends both cognitive and volitional elements: the
identification of the frame defined by the higher-level norm that partially determines
the act of application / creation of law and the decision of one of the possible inter-
pretations within the frame in which the higher-level norm can be concretized. This
balance, nevertheless, is difficult to maintain, destabilizing the decisionistic element
when connecting Kelsens ideas on legal interpretation with other aspects of the
pure theory of law.
This is the case for legal science. As Paulson has pointed out, the claim to present
scientific interpretation as the discovery of all, or at least, the greatest number of
possible meanings of a normative statement is not just a utopian project, as his own
commentary on the United Nations Charter shows (Paulson 1990a: 146). Since all
these meanings are legally equivalent, from the point of view of legal science, gen-
eral norms do not allow for the possibility of prediction at all, or this possibility is
very much reduced (Paulson 1990a: 150). Considering that higher-level norms state
a frame of possible meanings, that is, a multiplicity of possible lower-level norms,
what does it mean when it is said that legal science describes valid norms? For legal
science, the statements of legal science would be formulated as follows:
The (higher-level) norm N comprehends the norm N1 according to the meaning A; the
normN2 according to the meaning B; the norm N3 according to the meaning C, (Guastini
1989: 123).7 Statements of legal science would be just a list or an enumeration of possibili-
ties, not even of probabilities. The practical relevance of legal science is still more attenu-
ated if we consider its distance from legal praxis, as Kelsen admits when stating that an

7
Guastini has highlighted the general incompatibility of Kelsens theory of legal science and his
theory of legal interpretation. First, Kelsen neglects to mention the problem of interpretation when
addressing the question of legal science. Nevertheless, as Guastini emphasizes, the latter presup-
poses the former, since the identification and description of norms stricto sensu requires interpre-
tation (at least a pragmatic interpretation in view of deciding whether a given sentence expresses
either a norm or a statement) (Guastini 1995: 109). Second, Kelsen does not distinguish between
normative statements (sentence) and norms (meaning). According to Guastini, scientific interpreta-
tion enumerates the possible meanings of normative statements; the different norms contained in
these statements. Furthermore, norms are the result, not the object of interpretation. In any case,
this list cannot be a deontic statement, as Kelsen claims, unless it is just a mere repetition of norms:
actual juristic deontic sentences cannot be understood as scientific statements. They can only be
understood as proposals of just one interpretation among the variety of interpretations which a
norm-formulation allows for. (Guastini 1995: 1101). In that case, scientific interpretation would
not be a cognitive activity, but a political one. Other critical considerations point in the same direc-
tion: according to Kelsen, the statements through which legal science expresses itself are not mere
descriptive statements, but, given the cognitive function of legal science, they are not prescriptive
statements, but statements of a third class, that is, the descriptive ought statements. In Ruiz
Maneros opinion, these types of statements are not distinguishable from mere prescriptions; there-
fore Kelsen is unsuccessful in construing this category (Ruiz Manero 1990: 56).
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 157

authentic interpretation that goes beyond the limits the frame established by the scien-
tific interpretation, can be a valid act of application / creation of law (Chiassoni 1990: 72).

Problems also arise regarding Kelsens skepticism with regard to traditional legal
methods of interpretation (which is nothing less than an extension of his ethical
relativism). For Kelsen, the equivalence among these methods of interpretation
from the point of view of positive law prevents a rational justification of a final legal
decision. From this position, Kelsen has been described as irrationalist. It would
appear, however, that this accusation does not alter in essence Kelsens middle-
position on legal interpretation. Rather, it is in relation to the problem of irregular
norms that the solutions proposed by Kelsen move his theory closer to an extreme
decisionism. Yet, there remain some elements that allow a less irrationalist reading
of Kelsens ideas.
In what follows, I will analyze the two aspects of Kelsens thesis on legal inter-
pretation that led to his intermediate position: the problem of indeterminacy and the
problem of the validity of legal norms.

9.2 The Problem ofIndeterminacy

Kelsen maintains that every legal act that applies a norm is only partially deter-
mined by that norm, therefore, every act of norm application implies a moment of
discretion. This indeterminacy may or may not be intended. In the first case, inde-
terminacy is part of the intention of the authority issuing the higher-level norm
(Kelsen 1934a: 78). Kelsen provides two examples. The first refers to a health law
that prescribes that upon outbreak of an epidemic the residents of the affected city
are to take certain precautions to prevent the disease from spreading. Here, admin-
istrative agencies are empowered to determine these precautions in various ways
depending on the various diseases (Kelsen 1934a: 789). The second is that of a
criminal law that provides for a fine or a gaol sentence for a specified delict,
where the judge is left both to decide in favour of one sanction or the other and to
determine its severity, for which determination an upper and a lower limit may be
established in the statute itself (Kelsen 1934a: 79).
On the other hand, unintended indeterminacy is a consequence of the properties of
the norm to be applied. Kelsen mentions three sources of unintended indeterminacy:
First of all, there is the ambiguity of a word or a phrase used in expressing the norm; the
linguistic sense of the norm is not univocal, and whoever is going to apply the norm is faced
with several possibilities. The same situation exists where the organ applying the norm
believes that a discrepancy between the linguistic expression of the norm and the will of the
norm-issuing authority can be assumed. Finally, indeterminacy of the prescribed legal
act can result from the fact that two norms purporting to be simultaneously valid both
contained, say, in one and the same statute contradict one another wholly or in part
(Kelsen 1934a: 79).

There is another source of indeterminacy that has nothing to do with the inten-
tion of the authority issuing the higher-level norm or the properties of the norm, but
158 J.M. CabraApalategui

with legal conventions (methods, arguments) on interpretation. As Kelsen himself


points out,
[t]he different methods of interpretation may establish different m eanings of one and the
same provision. Sometimes, even one and the same method, especially the so-called gram-
matical interpretation, leads to contradictory results (Kelsen 1949: xiii).

This indeterminacy is horizontal not vertical, that is, it does not come, as in the
previous cases, from a higher-level norm, but from the hermeneutical tools used by
the interpreter.
The notion of indeterminacy itself suffers from ambiguity, having at least two
interpretations. The first is a linguistic interpretation, according to which indetermi-
nacy is a property of language and, therefore, a linguistic property of norms. The
second is a legal interpretation, according to which the notion of indeterminacy
refers to the structural properties of legal systems, namely, hierarchy and dynamics;
indeterminacy does not refer to norms, but to acts of application / creation of norms
carried out by the authorities.
In relation to the first interpretation, if the notion of indeterminacy is interpreted
in a linguistic sense, Kelsens thesis is not sufficiently founded. As Ruiz Manero has
pointed out, Kelsens thesis implies the following:
first, that norms to be applied always have (that is, all of them and in every case of applica-
tion) an indeterminacy margin; second, that it is not possible, in any case, to avoid that
margin by means of second level norms, that is, by means of directives on interpretation of
first level norms (Ruiz Manero 1990: 27).

Leaving aside intentional indeterminacy8 (sought by the authority issuing the


norm in order to expressly confer certain powers of decision on the lower authority),
the list of sources that generate unintentional indeterminacy is not exhaustive, so
assuming the existence of cases in which there can be more than one answer within the set
of applicable norms, does not mean that there are also cases for which there is only one
solution within the set of applicable norms (Ruiz Manero 1990: 28).

In short, according to this critic, Kelsen is not fully aware of the fact that indeter-
minacy is a contingent property of legal norms.
But Kelsens failure in founding the indeterminacy thesis does not mean that it is
wrong. It could be argued as Bulygin does that there always exists some degree
of unavoidable vagueness when particular facts are related to words.9 In contrast to
the former, this second linguistic interpretation of the notion of indeterminacy pres-

8
The two examples of intentional indeterminacy provided by Kelsen make no reference in con-
trast to Hart to the possibility that indeterminacy may be obtained through language properties,
be it ambiguity or vagueness (Lifante 1999: 68). Nonetheless, there is no reason to think that
Kelsen excludes this source of intentional indeterminacy.
9
Though admitting Kelsens justificatory deficits, Bulygin, nevertheless, finds quite sound the
indeterminacy thesis: The reason why the individual norm created by the judge is never com-
pletely determined by general norms is that general norms are always expressed in a language that
contains general terms (predicates), whereas the judge has to decide a particular case; so his prob-
lem is the subsumption of certain particular facts under the predicates contained in the legal rules
(general norms) (Bulygin 1995: 14). See also Paulson (1990a: 1434) and Caytas (2012: 14).
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 159

ents indeterminacy as a necessary property of norms. In this respect, Kelsens the-


ory would be correct, although he would have erred in the explanation.
The notion of indeterminacy has also been the object of a second, non-linguistic
interpretation. Based on Kelsens own texts, some authors (See Walter 1983: 190
1); Mayer 2001: 1001)10 have rejected the notion that his thesis on indeterminacy
is to be understood as if there were no right answer in some cases, or the application
of norms is never a deductive operation. According to Kelsen:
Interpreting a statute, then, leads not necessarily to a single decision as the only correct
decision, but possibly to a number of decisions, all of them of equal standing (measured
solely against the norm to be applied), even if only a single one of them becomes, in the act
of the judicial decision, positive law (Kelsen 1934a: 80).

The fact that there is not necessarily a single decision does not exclude the pos-
sibility that there is one; at the same time, the fact that interpretation leads possibly
to a number of decisions, does not mean that this necessarily occurs. Thus, we can-
not conclude from Kelsens own texts that he rejects the existence of clear cases: the
notion of indeterminacy does not always connote that a norm is open to various
interpretations. In other words, indeterminacy does not refer exclusively to a lin-
guistic property of norms, but to a distinctive feature of legal systems. Mayer high-
lights this when asserting that it is necessary to clearly distinguish between, on the
one hand, indeterminacy on a lower normative level and a higher normative level
and, on the other, indeterminacy in the application of a general norm, susceptible to
more than a single interpretation (Mayer 2001: 1023). The first is a legal question
regarding the hierarchical structure of legal systems and the dynamic principle rul-
ing its functioning; the second is a linguistic question regarding the open texture of
ordinary language, that is, the existence of easy (or paradigmatic) and hard cases in
the use of concepts. According to this interpretation, the Kelsenian notion of inde-
terminacy is related to the first question.
Luzzati has developed a more sophisticated approach following this line of argu-
ment in which indeterminacy (Unbestimmtkeit) is an obvious and distinctive feature
of legal systems and not a semantic or linguistic notion (Luzzati 1990: 125). As is
well known, the existence of a norm depends on it being created by an act of a legal
authority in accordance with a higher-level norm. The point here is not so much the
necessity of the normative act but the fact that the higher-level norm is determined
through this act. Therefore, indeterminacy has to do with the discretion of legal
authorities when deciding how to apply the higher-level norm. Luzzatis approach
is based on the following arguments. First of all, Kelsen does not consider indeter-
minacy a property of legal norms but of the acts that apply the law. Hence, indeter-
minacy is not comparable with vagueness (though it could be a consequence of it in
some cases), and it is of a legal not linguistic nature. Secondly, Kelsen maintains
a unitary concept of indeterminacy referring to the margin of discretion (which
diminishes as we descend to the lower levels of the legal system) of every act of

10
According to Walter (1983), Kelsens vehement attacks against the traditional doctrine of the one
right answer have led to wrongly considering him a decisionist, a conclusion says Walter that
cannot be obtained from Kelsens own texts.
160 J.M. CabraApalategui

application / creation of law. Finally, the distinction between intentional and non-
intentional indeterminacy (that is, between normative and factual indeterminacy),
seems to confirm that Kelsen referred to discretion and not to vagueness, since
intentional indeterminacy means the explicit empowerment of certain authorities
with a margin of decision that is not a consequence of the linguistic properties of
norms. On the other hand, even if it largely depends on language, non-intentional
indeterminacy does not always have a linguistic nature, as Kelsens enumeration of
possible sources of this kind of indeterminacy shows (Luzzati 1990: 1306).
In my view, this approach is successful in showing that the Kelsenian notion of
indeterminacy is broader than that of open texture or vagueness, but defective
in constructing a unitary notion of indeterminacy.11 If identified with discretion, the
notion of indeterminacy is such an abstract concept that it would refer to quite dif-
ferent things. For example, (1) an express delegation of a power of decision; (2) a
factual delegation implicit in linguistic indeterminacy; (3) a liberty or freedom not
to follow the letter of the norm, as the interpreter doubts that the will of the authority
that issued the norm is accurately reflected in the text; or (4) even the necessity of a
decision, that is, a normative act of application / creation upon which the validity
(existence) of the norm depends. Certainly, all these cases can be described in some
sense as discretion but there are relevant differences that would justify a greater
precision, specifically between those cases in which the lower authority can deter-
mine the content of the norm and those in which this authority can only decide if or
when it carries out the normative act that creates the (lower) norm, but lacks any
margin of decision regarding the content of the norm. In the latter, we can only
speak of indeterminacy in a very broad and often trivial sense.
Understandably, Kelsens attempt to reconstruct a unitary notion of indetermi-
nacy tries to connect the dynamic principle (according to which every norm is con-
tained, but only partially determined, in a higher-level norm, and, therefore, needing
a normative act of creation by the empowered authority to be valid) and skepticism
about the methods of interpretation and legal argumentation. It is not difficult to
obtain an image of legal dynamics as a sequence of normative acts of creation that
always and, in every case, present a margin of discretion and lack any rational crite-
ria for decision and control (Lifante 1999: 78). However, ambiguity persists in the
notion of indeterminacy, as there are two concepts of discretion that should be dis-
tinguished: that referring to the margin of decision; and that referring to the empow-
erment to decide. And accepting that Kelsen could have been more accurate here, no
argument referring to the notion of indeterminacy endangers his intended middle-
position theory of legal interpretation. In the next section, a much more serious
threat to this equilibrium will be analyzed.

11
See also Lifante (1999: 778).
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 161

9.3 The Problem ofValidity

9.3.1 Formal Validity andMaterial Validity

According to the dynamic principle, a norm is valid if the act that creates it is in
accordance with the provision of a higher-level norm. As the latter determines not
only the process whereby the lower-level norm is created, but possibly the content
of the norm to be created, both formal (referring to the authority and the procedure)
and material (referring to content), conditions of validity must be differentiated.
Regarding material validity, a norm is in accordance with the higher-level norm
if its content circumscribes the set of possibilities of execution or application
described by the latter. It is in this sense that Kelsen defines the norm as a frame
(Kelsen 1934a: 80). But what are the boundaries of this frame? The metaphor of the
frame expresses the rejection of cognitivist theories of legal interpretation that sup-
port the one right answer thesis, showing that every normative act of application
contains a moment of discretion (thesis of indeterminacy), as there is always a plu-
rality of possible answers. Nonetheless, the idea of the frame goes further: indepen-
dently of the practical difficulties involved in determining the boundaries of the
frame, the very notion of material validity of a norm rests on the presupposition that
there is a set of meanings that fit into the boundaries of the frame and a set of mean-
ings that do not (Paulson 1990a: 148). Thus, that the idea of the frame means that
interpretation of the higher-level norm is subject to criteria of correction (which
separates Kelsen from legal decisionism). Only when the interpretation of a legal
authority remains within the frame defined by the higher-level norm, can it be said
to be a normative act of application. The frame is, therefore, the cognitive element
of interpretation.
Immediately, a connection between the idea of the frame and legal science comes
to mind. Leaving aside the margins of discretion explicitly established by higher-
level norms (intentional indeterminacy), which also define the boundaries of the
frame, it seems clear that the frame is not only defined by the general linguistic uses,
but also by all those interpretations based on the application of current interpretative
conventions in the legal community. More precisely, it is the identification of this
multiplicity of meanings resulting from scientific interpretation. Nonetheless,
Kelsen expressly admits that authentic interpretation can differ from scientific inter-
pretation.12 Thus, two questions arise that undermine the cognitive element: first, the
limited relevance of legal science from the point of view of the pure theory of law
(in contrast to sociological approaches); and, second, and more importantly, the fact
that authentic interpretation exceeds scientific interpretation is not due to the incom-
pleteness of the latter something that can be only admitted partially or in particular
cases, not as a general rule but solely to the will of legal authorities.

12
Authentic interpretation may even attribute to a legal norm a meaning which a non-authentic
interpretation could never dare to maintain. That is to say, by authentic interpretation a legal norm
may be replaced by another norm of totally different content (Kelsen 1949: xv).
162 J.M. CabraApalategui

This volitional element is even clearer in the following text:


By way of authentic interpretation, that is, the interpretation of a norm by the legal organ
applying it, not only can one of the possibilities be realized that are brought out by the
cognitive interpretation of the norm to be applied, but also a norm can be created that lies
completely outside the frame represented by the norm to be applied (Kelsen 1960: 354).

Here, the reference to scientific interpretation is substituted by a more general


reference to the cognitive interpretation. This is an important shift, as it refers not to
the subject of interpretation, but to the very nature of the act. The emphasis lies not
in the dissociation of legal science and legal praxis, but in the dissociation of the
(logically preceding) cognitive element and the volitional element in authentic
interpretation.
The cognitive element consists of the set of objective meanings given to the inter-
preter as it is the object of an act of knowledge, not an act of will on the basis of
currently accepted interpretative conventions such as rules of use of (ordinary) lan-
guage, legal methods, equity or any other convention that regulates legal interpreta-
tion. When an authority produces a norm exceeding this frame, it is ignoring the set
of objective meanings deriving from these rules; in other words, a normative act
does not fulfill material conditions of validity when this act cannot objectively be
interpreted as observing any of these interpretative conventions. To be outside the
frame means to ignore any rule, principle or standard, in short, any interpretative
convention identifiable as such. It entails that the specific normative meaning on
which the material justification of a normative act of creation rests is disregarded.
We would say then that such a normative act is a pure act of will; an act of mere
creation, but not an act of application of the law.
Nevertheless, in providing an answer to the problem of the conflict of norms
located at different hierarchical levels (irregular norms), Kelsen admits that confor-
mity to the content of the higher-level norm, that is, to remain within the frame
defined by that norm, is neither a sufficient nor necessary condition for the validity
of the lower-level norm. Does this mean that what has been said so far is irrelevant?
This conclusion though not completely unjustified as we will see appears to be
without a sufficiently solid foundation. From this perspective, I find a promising
line of argument in a non-reductionist interpretation of the concepts of correctness
and validity, and a functional (non-ontological) interpretation of the content relation
between norms of different hierarchical levels. In what follows, I will analyze the
problem of irregular norms and its consequences for the Kelsenian theory and, in
the next section I will attempt a reconstruction of Kelsens ideas whilst remaining
true to his initial intuition on legal interpretation.

9.3.2 The Tacit Alternative Clause

Legal systems are confronted with the possibility that there are general and indi-
vidual norms whose content is not in accordance with a higher-level norm (uncon-
stitutional statute, illegal regulation, judicial decisions or administrative acts
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 163

contrary to statute or regulation), but which are valid according to positive law.
These anomalous aspects of legal reality, that affect both the validity of norms
(which can no longer be explained as the norm creation in accordance with the pro-
visions established by the higher-level norm) and the coherence of legal systems
(threatened by the existence of two contradictory norms), are difficult to accommo-
date in the internal logic of the Kelsenian model of legal system.13 Kelsens answer
to this problem is well-known the so-called tacit alternative clause doctrine and
remains extremely controversial:
If, for example, an unconstitutional statute is possible that is, a valid statute that either in
the manner of its creation or in its content fails to conform to the provisions of the prevail-
ing constitution this can only be interpreted in one way: the constitution aims not only for
the validity of the constitutional statute, but also (in some sense) for the validity of the
unconstitutional statute. Otherwise one could not speak of the validity of the latter at all.
That the constitution does aim for the validity of the so-called unconstitutional statute is
shown in the fact that it prescribes not only that statutes should be created in a certain way
and have (or not have) a certain content, but also that if a statute was created other than in
the prescribed way or has other than the prescribed content, it is not to be regarded as null
and void, but is to be valid until it is invalidated by the designed authority say, a constitu-
tional court in a procedure governed by the constitution (Kelsen 1934a: 72).

Furthermore:
The meaning of the higher-level norm that provides for the creation and the content of a
lower-level norm cannot be comprehended without taking account of the further provision
made by the higher-level norm for the case in which its first provision is violated. Thus, the
determination of the lower-level norm by the higher-level norm has the character of an
alternative provision here If the individual norm corresponds to the first of the alterna-
tives, it is complete, adequate, on the mark; if it corresponds to the second of the alterna-
tives, it is inferior, falling short of the mark, that is, it can be overturned owing to the claim
of its deficiency (Kelsen 1934a: 74).

With an answer of this kind, both problems seem to be solved at once: the lower-
level norm, whose content does not correspond to what is explicitly provided by the
higher-level norm, is not an unlawful norm but an objectively valid norm according
to the alternative implicit provision; the same reason stands for dissolving the con-
flict logical contradiction between norms. Thus, the very concept of unlawful
norm is alien to Kelsens view: according to the positive law one cannot speak of
unconstitutional laws or unlawful final judicial decision (when no more appeals
are available). An ab initio invalid norm is a non-existent norm (a non-norm), there
are only valid or invalidatable norms, that is, valid as long as the competent author-
ity does not declare them void. This declaration says Kelsen has a constitutive,

13
For some authors, this is an insurmountable problem; e.g., Weyland: Kelsen often pursued irrec-
oncilable aims. This is particularly true of his treatment of conflicts of norms at different levels of
the hierarchy, which constitutes one of the most puzzling and controversial aspects of his theory.
The inconsistencies in this case arise from the incompatibility between his desire to construct a
logically coherent model of legal systems and his attempt to fit into certain anomalous aspects of
legal reality (Weyland 1986: 249).
164 J.M. CabraApalategui

not merely declarative, character (Kelsen 1960: 277). Because of this constitutive
character, it cannot be dismissed that a legal authority declares invalid a norm that
conforms with the higher-level norm. In short, a norm is valid (or invalid), if it has
been declared valid or has not been declared void by the competent authority.
The formulation of a doctrine such as the tacit alternative clause in the context of
Hans Kelsens work has been explained in different ways. On the one hand, it has
been said that it is a necessary element of Kelsens theory considering the neo-
Kantian epistemological presuppositions (Luzzati 1995: 98). This doctrine has also
been explained in pragmatic terms emphasizing the functional dimension of law: its
contribution to social peace and certainty (Garca Amado 1996: 231ff.). A third
explanation is a conceptual one which, according to Bulygin, is based on the ambi-
guity of the concept of validity (Bulygin 1991: 363). With the concept of validity
Kelsen describes three different properties of legal norms: the norm creation accord-
ing to the provisions of a higher-level norm (also identified with membership of the
norm to the legal system); the specific existence of the norm; and, finally, the bind-
ing character of the norm. Due to this ambiguity, all meanings of validity are con-
sidered to be co-extensive, and the problem of invalid norms appears as a
contradiction: norms that do not conform to the provisions of a higher-level norm
are, at the same time, binding norms as long as the competent authority does not
declare them invalid. As Kelsen did not differentiate between these two different
concepts of validity, the way of explaining the binding character of these norms
and, in addition, solve the logical contradiction is to maintain, contrary to all
appearances, the conformity of these norms with higher-level norms by means of
the alternative provision. But this is a mistaken approach Bulygin argues because
a norm that does not belong to the legal system can be binding, as in the case of
foreign law or derogated norms (Bulygin 1995: 189)
The tacit alternative clause doctrine has, at least apparently, devastating conse-
quences for Kelsens theory (Nino 1985: 32ff.; Weyland 1986: 256; Ruiz Manero
1990: 67; Bulygin 1995: 17). Firstly, it
deprives all general norms of their normative character, for they become tautologous:
whatever the course of action chosen by the judge, it always conforms to the general norm
applied, so a general norm cannot for reasons of logic alone be violated or infringed
(Bulygin 1995: 17).

Secondly, and as a consequence of the former, legal norms become trivial,


because normative acts creating general or individual norms are not determined in
their content by higher-level norms. And, finally, the distinction between invalidat-
able norms and non-existent norms is completely obscured, since the implicit
and almost unlimited openness of the alternative provision does not allow consider-
ation of cases of non-existent norms as cases not foreseen by law, as there is nothing
to prevent considering those cases as comprehended in the alternative provision. In
any case, for these reasons, critics consider that it would lead to an extreme deci-
sionism and, simultaneously, to the collapse of the whole theory of the legal system
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 165

as a dynamic normative system, as well as the idea of law as a technique for social
order (Ruiz Manero 1990: 65, Bulygin 1995: 17).14

9.4 A Non-irrationalist Reconstruction

Considering what has been previously discussed, the relations between norm con-
tent and norm validity may be described as follows:
1. As norms are the meaning of an act of will, the mere correspondence with the
provisions of a higher-level norm is not a sufficient condition for their validity; a
normative act of application / creation of the higher-level norm is necessary for
the lower-level norm to be valid, that is to say, to exist.

14
Taking into consideration these consequences, some authors have proposed different solutions
that would be coherent with Kelsens theory. Following the disambiguation of the concept of valid-
ity made by Bulygin, Nino maintains the possibility of invalid norms being binding. Unlike Kelsen,
Ninos solution is characterized by the following elements: (1) the norms that grant validity to the
unconstitutional or illegal enactments do not authorize those enactments which is what created
some paradoxical implications but merely declare that there is an obligation to apply and to
observe the resulting statute; (2) these norms are not necessary components of every legal sys-
tem. They are only positive and contingent parts of some systems, though generally they have not
been explicitly enacted, but are rather generated in a tacit and customary way; and, (3) norms
which oblige the application of illegal enactments generally discriminate between laws, contrary
to Kelsens thesis. In addition to negative conditions like those of not being declared unconstitu-
tional by the corresponding court, the norm in question must satisfy a certain positive condition. I
think that the implicit positive condition which is generally required is quite vague but nevertheless
real and operative: the norm in question should enjoy a certain color or appearance of legality
(Nino 1995: 227).
Also, Weyland tries to solve this problem in other ways, analogous to the factual concept of
validity of legal realism: Once we admit that Kelsens concept of the legal system cannot incorpo-
rate everything that has the appearance of being valid, prescriptive statements which do not satisfy
Kelsens conditions of validity and yet have legal effects, must be deemed to be part of a wider
notion of positive law and a different term must be used to describe them. I propose calling them
norms in force and define them as prescriptive statements which are deemed to be binding by legal
officials because they have been issued by individuals who appear to be acting in the capacity of
legal organs, even though they have not complied with one or more norms that regulate their behav-
iour. Norms in force are more likely to be declared invalid or to fall into desuetude than valid norms.
If notwithstanding their invalidity they become efficacious and the opinione necessitatis required by
Kelsen for the formation of customary law is present, they then become part of the legal system on
the grounds that custom is a valid method of law creation (Weyland 1986: 268).
Actually, both alternatives rest on the distinction between the various concepts of validity that
the Kelsenian notion comprehends. Ninos proposal differentiates between validity as a binding
force and validity as conformity to the provisions of the higher-level norm (that is, as authorization
and as membership to the legal system), in order to show that the first domain is wider than the
second, as some norms oblige obedience and the application of invalid (not authorized) norms.
While Weyland differentiates between validity as existence and validity as conformity to the provi-
sions of the higher-level norm, her wider notion of positive law means nothing but the greater
extension of the first domain which includes valid norms as well as those non-valid norms that are
deemed to be binding by legal officials due to their appearance of legality.
166 J.M. CabraApalategui

2. Because of the tacit alternative clause doctrine, validity is not a contingent but an
a priori (Bulygin 1991, 365) property of norms. Thus, correspondence of con-
tent with the higher-level norm is not a necessary condition for the lower-level
norm to be valid: as long as the norm is not declared invalid by the corresponding
authority, it is valid.
3. Even an objective valid norm, that is, a norm whose content corresponds to the
provisions of a higher-level norm, can be declared invalid by the corresponding
authority. Then, the correspondence of content with the higher-level norm does
not warrant its validity.
4. Validity of general and individual norms depends on the decision of the corre-
sponding authority. This being a final decision, it is constitutive.
As already indicated, not only an unwanted decisionism, but also the collapse of
the whole theory of a legal system (dynamic principle) and the idea of law as a
technique for social order would result from this approach. I consider that a less
catastrophic and less irrational or incoherent also perhaps more charitable recon-
struction of Kelsens ideas is possible, based on his initial intuitions concerning
legal interpretation and a different understanding of the relation of determinacy
between norms of different levels. First, a non-reductionist concept of correctness
can be derived from Kelsens texts: the fact that a norm is, or is not, a correct inter-
pretation of, on the one hand, the higher-level norm and, on the other, its validity,
must be clearly distinguished. Second, I will utilize the argument that the relation of
determinacy between norms is to be understood not in an ontological but in a func-
tional and pragmatic way.
Although it is an attempt to put legal reality into normative terms, Keslens solu-
tion to the problem of conflicts of norms at different hierarchical levels favours the
factual (Sein) over the normative (Sollen), by means of recognizing the validity of
unlawful norms. The alternative, that is, to deny legal status to those unlawful
norms, is unviable, both from the point of view of legal positivism and the pure
theory of law. Besides, there are good reasons for considering valid a norm that does
not conform with the provisions of the higher-level norm: social conflicts and con-
troversies cannot be subject to permanent revision, a definitive solution in a reason-
able period of time is a necessary condition for the law to fulfill its social function
of contributing to social peace and certainty (Bulygin 1995: 22; Luzzati 1995: 96).
However, obviously, this does not mean that any final decision with any content
is correct, that is, a correct interpretation of the higher-level norm. The constitutive
character of final decisions regarding the validity of norms should not obscure this
point. Legal authorities have the last word, but are not infallible. As Bulygin says,
these decisions
are not constitutive in the sense that they make [an] empirical or normative sentence true
they are constitutive only in the sense that they constitute conditions for the application of
other norms (Bulygin 1995: 24).

So, ultimately, the opinion of the court is a sufficient condition for the validity of
a norm, but not a standard of correctness only the correspondence with the content
of the higher level norm satisfies this standard.
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 167

The distinction between meanings within the frame and meanings beyond it,
presupposes a standard of correctness that defines two non-coextensive domains
from this particular perspective. On the contrary, as a result of the normative empti-
ness that the notion of legal validity suffers with the tacit alternative clause, the
domain of legally valid entities is potentially coextensive with that of factual
decisions of legal authorities, as any norm, general or individual, is valid indepen-
dently of its content as long as the corresponding authority does not declare it void.
The social functions of law here, social peace and legal certainty enable the
recognition of the operation of the two distinct categories of legal correctness and
legal validity. Nevertheless, it is not necessary to reduce legal correctness to legal
validity for the law to fulfil these functions.
The frame defined by the norm to be applied is a normative concept whose content
depends on the valid interpretative conventions (methods, principles) in the legal com-
munity. According to these conventions, two or more interpretations are correct from
the point of view of the positive law; indeed, these interpretations can lead and often
do lead to opposite outcomes owing to their potentially conflictual character. This
does not mean, however, that every interpretation falls within the frame. The difficul-
ties faced in establishing the limits of the frame (Weyland 1986: 259), or the fact that
these limits can be considered the result of the argumentative strategies of the authori-
ties or the parts in a legal process (Kennedy 2008: 155),15 are not sufficient objections
to warrant abandoning the idea of normativity in legal interpretation.
A further objection could be raised against the scope or amplitude of the frame,
which is something clearly different from its vagueness. Indeed, as a standard of legal
correctness, the frame is just a negative and minimum criterion: it only determines which
interpretations conform (or do not conform) to the content of the higher-level norm,
according to the interpretative conventions accepted by the legal community. However,
limited as it is, conformity to the content of the higher-level norm represents the only
standard of correction and, therefore, the cognitive element in legal interpretation.
The question of correctness in legal interpretation has been obscured by Kelsen
himself when attributing legal relevance solely to the normative acts of application/
creation of law, independently of their content. The relevance here has a functional
sense, but there is another sense normative in which norm content can be rele-
vant: the acts of authorities determining the validity of general or individual norms
are, in part, judgments concerning the conformity of a norm to the content of the
higher-level norm, that is, its correctness. This conformity is neither a necessary nor
a sufficient condition for the validity (existence) of a norm, but non-conformity to
the higher-level norm content is a sufficient condition for it to be declared void.
Again, this declaration is constitutive regarding validity, but not regarding correct-
ness. And, as a non-reductionist (normative) concept of correctness can be inferred

15
Duncan Kennedy maintains that the initial comprehension of a case that determines the appli-
cable norm to the facts can be modified by the practices he calls strategic behaviour in interpreta-
tion, according to which it is the interpreter and not a particular property of cases themselves that
determines if a case corresponds to one of the various possible interpretations within the frame
(Kennedy 2008: 155ff.).
168 J.M. CabraApalategui

from his theory of legal interpretation, Kelsen cannot be described as a decisionist.


Certainly, he could have further developed the idea of the frame, but as far as I am
aware he did not.
Beyond the parameters of this aspect, the deciding authority always has the pos-
sibility, even if it is not always or generally exercised, to ignore the normative frame.
This is the second part of the argument: legal systems could not fulfil their basic
social function of assuring social order and peace the very possibility of society,
which is the basic end of law, according to Kelsen unless it is generally obeyed at
all levels of hierarchy. Therefore, a widespread conformity to the content of the
higher-level norm is a necessary condition for the efficacy of legal systems as a
whole. This functional argument focuses not just on the validity of individual legal
norms, but takes into consideration the law as a social order. As has been pointed
out, according to this perspective, content determination of a norm by the higher-
level norm is not ontological in nature, as there exist norms that do not conform to
that content but factual: legal authorities usually conform to the provisions of the
higher-level norms by staying within their hermeneutic frame when applying the
law (Garca Amado 1996: 208 ff). The explanation of this factual determination
would rest on ideological what Alf Ross called formal or institutional legal con-
sciousness and sociological reasons, as the massive violation of what is socially
recognized as law would probably lead to general disobedience and the collapse of
the legal system (Garca Amado 2006: 1206ff.).
To sum up, legal interpretation is in no way superfluous if we adopt a functional
perspective when analyzing Kelsens ideas; general efficacy and, thus, validity of
legal systems depend at least partially on a significant number of normative acts
of legal authorities being socially recognized as subjected to law.

References

Amado, Garca. 1996. Kelsen y la norma fundamental. Madrid: Marcial Pons.


. 2006. Hablando de Kelsen con Delgado Pinto. In El positivismo jurdico a examen.
Estudios en homenaje a Jos Delgado Pinto, edited by Juan Antonio Ramos Pascua and Miguel
ngel Rodilla Gonzlez, 11991209. Salamanca: Ediciones Universidad de Salamanca.
Bulygin, Eugenio. 1991. Sentencia judicial y creacin de derecho. In Anlisis lgico y derecho,
Carlos Alchourrn and Eugenio Bulygin (authors), 355369. Madrid: Centro de Estudios
Constitucionales.
. 1995. Cognition and Interpretation of Law. In Cognition and Interpretation of Law, edited
by Letizia Gianformaggio and Stanley Paulson, 1135. Turin: Giappichelli.
Caytas, Joanna Diane. 2012. The Unconquerable Domain of Discretion in Kelsens Pure Theory of
Law. Washington Undergraduate Law Review IV (1): 146.
Chiassoni, Pierluigi. 1990. Legal Science and Legal Interpretation in the Pure Theory of Law. In
Hans Kelsen Legal Theory: A Diachronic Point of View, edited by Letizia Gianformaggio,
6373. Turin: Giappichelli.
Guastini, Ricardo. 1989. Hans Kelsen sullinterpretazione. In Lanalisi del ragionamiento
giuridico, edited by Paolo Comanducci and Ricardo Guastini, 121125. Turin: Giappichelli.
9 Validity andCorrectness inKelsens Theory ofLegal Interpretation 169

. 1995. Kelsen on Legal Knowledge and Scientific Interpretation. In Cognition and


Interpretation of Law, edited by Letizia Gianformaggio and Stanley Paulson, 107115. Turin:
Giappichelli.
Heidemann, Carsten. 1997. Die Norm als Tatsache. Zur Normentheorie Hans Kelsens. Baden-
Baden: Nomos.
Kelsen, Hans. 1925. Allgemeine Staatslehre, Berlin: Springer. Spanish edition: Kelsen, H. 1979
(15th ed.). Teoria General del Estado. Translated by L. Legaz Lecambra. Mexico: Editora
Nacional.
. 1934a. (1. Auflage) Reine Rechtslehre. Einleitung in die Rechtswissenschaftliche
Problematik. Leipzig/Vienna: Franz Deuticke (2. Neudruck der 1. Auflage. 1994. Aalen:
Scientia Verlag). English edition: Kelsen, H. Introduction to the Problems of Legal Theory.
Translated by B. Litschewski Paulson and S.L Paulson. Oxford: Oxford University Press.
Spanish edition: Kelsen, H. Teora pura del Derecho. Introduccin a los problemas de la cien-
cia jurdica. Translated by Gregorio Robles y Flis F. Snchez. Madrid: Trotta.
. 1934b. Zur Theorie der Interpretation. Internationales Zeitschrift fr Theorie des Rechts
8: 917. [English versin: Kelsen, H. 1990. On the Theory of Interpretation (trans: Paulson,
S.L.). Legal Studies 10(2): 127135].
. 1949. Preface: On Interpretation. In: Hans Kelsen, The Law of the United Nations: a criti-
cal analysis of its fundamental problems. With supplement, XIIIXVII. New York: Frederick A.
Praeger (2000. New Jersey: The Lawbook Exchange)
. 1960. Reine Rechtslehre (2 Auflage). Vienna: Franz Deuticke. Spanish edition: Kelsen, H.
1979. Teora Pura del Derecho. Translated by R.J. Vernengo. Mxico: Porra.
Kennedy, Duncan. 2008. A Left/Phenomenological Alternative to the Hart/Kelsen Theory of Legal
Interpretation. In Legal Reasoning: Collected Essays, edited by Duncan Kennedy. Colorado:
Davies Group.
Lifante, Isabel. 1999. La interpretacin jurdica en la teora del derecho contempornea. Madrid:
Centro de Estudios Constitucionales.
Losano, Mario G. 1985. La teora pura del derecho: del logicismo al irracionalismo. Doxa 2:
5585.
. 1990. The Periodization of Kelsen Proposed by S. L. Paulson. In Hans Kelsen Legal
Theory: A Diachronic Point of View, edited by Letizia Gianformaggio, 111121. Turin:
Giappichelli.
Luzzati, Claudio. 1990. Discretion and Indeterminacy in Kelsens Theory of Legal Interpretation.
In Hans Kelsen Legal Theory: A Diachronic Point of View, edited by Letizia Gianformaggio,
123137. Turin: Giappichelli.
. 1995. Kelsen vs. Bulygin on Legal Interpretation: How Not to Read Kelsen through Harts
Eyes. In Cognition and Interpretation of Law, edited by Letizia Gianformaggio and Stanley
Paulson, 85106. Turin: Giappichelli.
Manero, Ruiz, and Juan. 1990. Jurisdiccin y normas. Dos estudios sobre funcin jurisdiccional y
teora del Derecho. Madrid: Centro de Estudios Constitucionales.
Mayer, Heinz. 2001. La doctrina de la interpretacin de la teora pura del derecho. In Problemas
Centrales de la Teora Pura del Derecho, edited by Robert Walter, Trans. L. Villar Borda,
93107. Bogot: Universidad Externado de Colombia.
Nino, Carlos S. 1985. La validez del derecho. Buenos Aires: Astrea.
. 1995. Marshalls Logic and Kelsens Problem. In Cognition and Interpretarion of
Law, edited by Letizia Gianformaggio and Stanley Paulson, 219230. Turin: Giappichelli.
Paulson, Stanley L. 1985. El periodo posterior a 1960 de Kelsen: ruptura o continuidad? Doxa 2:
153157.
. 1990a. Kelsen on Legal Interpretation. Legal Studies 10 (2): 136152.
. 1990b. Toward a Periodization of the Pure Theory of Law. In Hans Kelsen Legal Theory:
A Diachronic Point of View, edited by Letizia Gianformaggio, 1147. Turin: Giappichelli.
. 1990c. Some Replies to Critics. In Hans Kelsen Legal Theory: A Diachronic Point of View,
edited by Letizia Gianformaggio, 173192. Turin: Giappichelli.
170 J.M. CabraApalategui

. 1998. Four Phases in Hans Kelsens Legal Theory? Reflections on a Periodization. Oxford
Journal of Legal Studies 18 (1): 153166.
. 1999. Arriving at a Defensible Periodization of Hans Kelsens Legal Theory. Oxford
Journal of Legal Studies 19 (2): 351364.
Walter, Robert. 1983. Das Auslegung Problem im Lichte der Reinen Rechtslehre. In Festschrift fr
Ulrich Klug zum 70. Geburstag, edited by Gnther Kohlmann, 187197. (Band I). Kln: Dr.
Peter Deubner Verlag.
Weyland, Ins. 1986. Idealism and Formalism in Kelsens Treatment of Norm Conflicts. In Essays
on Kelsen, edited by Ruchard Tur and William Twining, 249269. Oxford: Oxford University
Press.
Part V
Legal Science and Human Rights
Chapter 10
Hans Kelsens Works andtheModern
Theories ofHuman Rights

VroniqueChampeil-Desplats

Abstract It is becoming increasingly apparent that a harmonious junction between


Hans Kelsens works and modern theories of human rights is highly unlikely. First,
Hans Kelsen rejects natural law as the basis of law and, a fortiori, of human rights,
while natural law has been at the heart of Bills and Declarations of rights and free-
doms since the seventeenth-century. Next, Kelsen also denies the existence of any
links between law and morality and refutes the existence of a system of values.
Furthermore, he excludes, from the scope of constitutional review, statements
expressing principles of justice or general freedom because their vagueness and
abstractness would immediately lead to arbitrariness in adjudication. Finally, the
Kelsenian definition of the concept of democracy is purely procedural; namely,
there is no reference to the substantive aspects of democratic principles and values.
Despite these unpromising starting points, it would be improper to conclude that
Kelsen ignores or slights human rights. It is not so difficult to restore links between
the modern and contemporary theories of human rights and Kelsens work, through
a consideration of his meta-ethical preferences and the global structure of his ideas.

10.1 Introduction

To analyse the link between Hans Kelsens works and modern theories of human
rights is a true challenge: first, because Kelsen does not directly address such theo-
ries; secondly, because as the main representative of the positivist theory of law,
Kelsen attaches more importance to the form and to the structure of the law than to
its content. Kelsen is led to consider human rights as contingent elements of legal
systems. Thus, no explicit theory of human rights can be found in Kelsens works.

V. Champeil-Desplats (*)
Paris Ouest-Nanterre-La Dfense University, Paris, France
e-mail: vchd@u-paris10.fr

Springer International Publishing AG 2017 173


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_10
174 V. Champeil-Desplats

If one is able, without difficulty, to identify the pertinent works of Hans Kelsen
which exemplify his approach to human rights, the more precise determination of
modern theories of human rights becomes, in contrast, more uncertain. The
consequently demanding character of the task of definition of modern theories of
human rights results from two main areas of uncertainty.
The first reason concerns the necessity for periodization: the delimitation of a
modern period. When does it begin, when does it end, if, indeed, it is at an end?
If one responds affirmatively, and holds that it is effectively at an end, is it pertinent
to exclude the following period a supposed post-modern or contemporary period
to understand the relationship between Hans Kelsens works and the theories of
human rights? In response to these questions, which, in turn, contain a range of
possibilities, the modern period will be here conventionally defined as starting
with the first substantial theories based upon a natural foundation for law, namely,
as originating in the seventeenth century, and as ending with the Second World War.
The decision to delineate the modern period in this manner concerns the progressive
transformation, after the Second World War, of theories of human rights marked by
the marginalization, if not effective abandonment, of a foundation or significant
reference to natural law. This process of marginalization or abandonment is accom-
panied by the assertion of either a strict adherence to positive law (positivist
approach), or, on the contrary, to the existence of an overarching objective moral
order or set of values.
The adherence to a positivist approach was stimulated by the development, on
the one hand, of international human rights law from the adoption of the Universal
Declaration of Human Rights at the end of 1948 and, on the other hand, of the enu-
meration and definition of fundamental rights in domestic constitutions conceived
as binding norms. Consequently, positive law can be comprehended as the funda-
mental basis for the existence and guarantee of human rights (Bobbio 1990, 17 ff.).
The adherence to the conception of an objective moral order can be partially
explained by the fact that natural law theories were appropriated by conservative
scholars in order to defend dictatorial and authoritarian regimes (in Europe or South
America), and, in particular, to justify the authority of these regimes or forms of
government. The reaction to this was to elaborate a new, objective, moral founda-
tion for human rights linked to a democratic and progressive institutional process.
However, considering the tertium non datur between jusnaturalism and positivism,
some scholars have formulated the term neo-jusnaturalism to denote the contem-
porary reference to overarching objective moral orders (Guastini 1986; Barberis
2011). Nevertheless, it seems preferable to consider them as neo-objectivist pre-
cisely because, if they share with the classical jusnaturalism a cognitivist approach
to the foundation of law in general, and with respect to human rights in particular,
they seek to renew this approach through the explicit exclusion of references to, and
dependence upon, any aspect of nature. In this manner, they can denote a post-
modern age of a theory of law. These post-modern theories can be afforded a brief,
condensed characterization through three main elements: (a) they propose recon-
structions of logical and axiological links between law and morality; (b) they pre-
suppose the possibility of a rational knowledge of moral values; and (c) they
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 175

associate democracy with the protection of human and fundamental rights by an


institutional process of constitutional review, which, in turn, involves a theory of
neo-constitutionalism (Comanducci et al. 2009; Champeil-Desplats 2012). The
potential pertinence of Kelsens work reappears at this point, insofar as Kelsens
constitutional works are often taken as references, either as a starting point regard-
ing the development of a conceptualization of constitutional review, or, on the con-
trary, to serve as a basis for the determination of the relationship between law and
morality. Hence, the consideration of this post-modern period will be a focus in
the subsequent discussion.
The second reason concerns the proliferation and plurality of conceptual founda-
tions for modern theories of human rights. In particular, that this proliferation and
plurality also entailed conflict concerning the question of conceptual foundation
and, also, of the comprehension of natural law itself (Bobbio 1990, 7 ff.).
Nevertheless, the reconstruction of a family resemblance between these various
theories appears possible, considering them on the basis of Hans Kelsens common
criticisms of these theories. An ideal-typical reconstruction of modern human rights
theories (from Suarez and the second Spanish scholastic to Grotius, Pufendorf and
the natural law school, John Locke, Thomas Paine or Rousseau) may be proposed
by referring to the six propositions principally raised by Gregorio Peces-Barba
(Peces-Barba 2004, 39 ff.):
(a) Human rights are based on natural law and are consubstantial with human
beings. They contain an inherent orientation to universal validity and enforce-
ment based on the presupposition of the universality of the human being;
(b) Human rights are discernible, in pre-modern theories, by Revelation and, in the
modern theories, by Reason. They constitute an objective set of values. Hence,
there is a presupposition of an ethical-cognitivist approach to value, namely, the
conviction that it is possible to provide an objective determination of the moral
values which are true or false;
(c) Human rights are both anterior and superior to modern States and, consequently,
to positive law;
(d) Human rights are, at the beginning of the modern period, strongly related to
contractualist theories. As an expression of natural rights, human rights are the
central object of the social or civil contract to which people have bound
themselves;
(e) Human rights exist as limitations upon the State and political powers. In this
way, they integrate an evaluative and normative approach to law. Norms pro-
duced by the States organs may be criticized and rejected insofar as they are in
contradiction with the fundamental values of Human rights. From this, it fol-
lows that the respect and the guarantee of such rights establishes them as the
social and political finality of the State;
(f) Finally, human rights, in their conception at the beginning of the modern age,
are linked to liberalism. They are, thus, limited to a restricted range of rights
and freedoms, essentially civil and political, such as the freedoms of conscience,
thought, religion, speech, right to participate in the formation of the general will
(in others words, to vote), habeas corpus, property and so forth.
176 V. Champeil-Desplats

On the basis of this presentation and reconstruction of modern theories of human


rights, the junction between Hans Kelsens work and modern theories of human
rights appears highly improbable. Indeed, considering his general approach to the
theory of law, Kelsen rejects natural law as the foundation or source of law and, a
fortiori, of a norm expressing human rights. For Kelsen, only the law is the source
of law, and this finds exemplary expression, as one of the main theses of the Pure
theory of Law (Kelsen 1967). Furthermore, Kelsen denies the existence of any links
between law and morality, refutes the existence of any possibility of an objective or
a rational knowledge of values, and presents his approach as the construction of an
axiologically neutral science and theory of law.
In relation to his theory of constitutional law and judicial review, Kelsen indi-
cates the necessity for the exclusion, from the scope of constitutional review, of
statements of human rights and freedoms, because of their inherent vagueness and
abstraction, which could lead directly to the arbitrariness of judicial decision-
making (Kelsen 1928, 240242). Finally, with respect to his theory of democracy,
Kelsens definition and conception of democracy are purely procedural, namely,
limited to several formal rules, and without any reference to the content of supposed
democratic values and, in particular, human rights (Kelsen 1929).
Nevertheless, it would be a grievous error to present Hans Kelsens work as the
embodiment of doctrine antithetical to human rights. Kelsen was a democrat,
defended freedom of religion, freedom of speech, freedom of science, and was
highly concerned with the problem of peace in the world. And for Kelsen, the law
has a special function in the achievement of these aims (Kelsen 1944). Thus, our
thesis is that it is possible to restore and demonstrate the compatibility between
Hans Kelsens work and the modern and contemporary theories of human rights by
commencing from the meta-ethical position and global orientation of Kelsens
thought, rather than from a general theory of law and its epistemological
presumptions.
First, the apparent antagonisms between, on the one hand, Hans Kelsens episte-
mology, methodology and general theory of law and, on the other hand, the main
aspects of modern conceptions of human rights will be demonstrated (10.2). Second,
the possibility of finding determinate elements of compatibility between Hans
Kelsens work and human rights will be examined, considering the global structure
of thought and his meta-ethical preferences (10.3). The chapter concludes with a
consideration of the Kelsenian position concerning human rights and
constitutionalism.

10.2 T
 he Apparent Antagonism BetweenKelsens Work
andModern Theories ofHuman Rights

The apparent antagonism between Kelsens thought and human rights derives from
two main elements. The first is linked to ontological presumptions: in evident con-
trast to modern and contemporary theories of human rights, Kelsen is defending a
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 177

relativist approach to values (10.2.1). The latter is connected to his theoretical for-
mulation of the concepts of law and State. Human rights appear as contingent ele-
ments in the process of their elaboration (10.2.2).

10.2.1 Ontolological Incompatibilities

The ontological incompatibilities between Kelsens thought and the modern and
contemporary theories of human rights rely on his conception of relationship
between law and morality which is linked to his conviction concerning the relativ-
ism of values.

10.2.1.1 Separation ofLaw andMorality

Kelsen defends the thesis of the separation between law and morality which entails
that morality is not a criterion of either identification or validity of the Law. If legal
norms are capable of a moral content or meaning, this is not an indication of their
necessary connection to morality (Ramos Pascua 2007). With respect to modern
theories of human rights, we can indicate two implications
First, Kelsen defends Humes law, according to which there is no logical infer-
ence between what is and what ought to be. For, as Kelsen explains, from
facts, that is to say, from what is, or actually is done, no inference is possible to what
ought to be or ought to be done (Kelsen 1957, 20). This basic presumption leads to
a significant number of further effects upon, and implications for, Kelsens work.
Regarding modern theories of human rights and their pretentions to found the posi-
tive norms enunciating human rights on a supposed natural law, Kelsen draws the
specific conclusion from Humes law that [s]o as far as the natural-law doctrine
tries to deduce norms of human behaviour from nature, it is based on a logical fal-
lacy (Ibid.). This position is also one which is then demonstrated to be based
merely on a conception of law as the product of human will. Thus, the correspon-
dence of this will with what natural law is supposed to command, is not the result of
a logical or an unavoidable inference but, rather, specifically depends on the will of
the normative authority.
Secondly, on the basis of the separation between law and morality, Kelsen defines
the law not by its content but by formal and structural criteria, primarily the hierar-
chical coordination of norms. Therefore, if he does not deny the possibility of any
relationship between law and morality, he nonetheless asserts that an essential con-
tingency underlies this relationship. In regard, for example, to the relationship
between law and peace, Kelsen argues that the peace value is not an essential ele-
ment for the concept of law (Kelsen 1967, 65). Kelsen, thereby, admits, in conse-
quence, the existence of unjust or immoral norms within legal systems, which is, on
the contrary, an oxymoron or an anomaly for modern and contemporary theories of
human rights. By defending the distinction between law and morality in general,
178 V. Champeil-Desplats

and between law and justice in particular, Kelsen expressly assumes that his theory
of positive law is directed against the traditional view, regarded as obvious by most
jurists, which presupposes that only one absolutely valid moral order and therefore
only absolute justice exists (ibid., 66). He further specifies: the demand for sepa-
ration between law and morality, law and justice, means that the validity of a posi-
tive legal order is independent of the validity of this one, solely valid, absolute
moral order, the moral order, the moral order par excellence (Ibid.).

10.2.1.2 The Relativism ofValues

Kelsen commences from the presupposition of the relativism of values which places
him in opposition to two, central presumptions shared by the modern and contem-
porary theories of human rights regarding values, in particular, the problem of the
foundation of human rights as legal norms. On the one hand, a relativist approach to
values is in opposition to a cognitivist or objective conception of knowledge of val-
ues. On the other, it is directly in opposition to an absolutist approach to values.

10.2.1.2.1 Relativism vs. Cognitivism

Kelsen is a ethical non-cognitivist. This entails from the presupposition of a radi-


cal separation between facts and values, a denial of the possibility of achieving an
objective or rational knowledge of values. He contends that, in contrast to facts,
values cannot be true or false; they are merely emotional sensations with variable
degrees of commonality and adherence. As he explains:
These values are, in truth, determined, in the last analysis, by the emotional elements of
their minds. The determination of these absolute values, and in particular the definition of
the idea of justice, achieved in this way are but empty formulas by which any social order
whatever may be justified as just. Hence, the many doctrines of justice that have been
expounded from the oldest times of the past until today may easily be reduced to two basic
types: a metaphysical-religious and a rationalistic or more exactly formulated a pseudo-
rationalistic one (Kelsen 1957, 11).

For Kelsen, the knowledge of values and of an absolute justice cannot, therefore,
be based on a rational-scientific method, nor deduced from the supposition of
human reason (Ibid.)
Regarding the field of human rights, the consequence is that the objective or
rational determination of rights that would be natural or innate to human beings is
impossible. Such rights are expressions of a set of values, more or less metaphysi-
cal, and dependent on subjective or personal conviction, emotion, interest, belief or
moral preferences of the individuals concerned. This thesis is in direct contrast to
the modern theories of human rights that, as suggested above, are founded on the
belief that it is possible to found such rights on a natural law that may be inspired by
a form of rational reasoning.
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 179

10.2.1.2.2 Relativism vs. Absolutism

The further consequence of his ontological presumptions is that Kelsen is also


opposed to the defence, by modern theories of human rights, of the existence of an
absolute moral order or an absolute justice deriving from the natural law. This is
particularly evident in Kelsens Absolutism and relativism in philosophy and poli-
tics (Kelsen 1957, 198), in which Kelsen rejects the possibility of providing an
absolute moral foundation for the legal order and, consequently, a single foundation
for human rights.1
This position is intimately linked to epistemological considerations concerning
the question of truth and the correct methodology for establishing a true knowledge
of the world. In a manner similar to a significant proportion of academics in
European Universities at around the end of the nineteenth-century and the begin-
ning of the twentieth-century, Kelsen sought to establish a specifically legal science,
based upon the strict autonomy and strong superiority of social sciences as a form
of knowledge with respect to religion or metaphysics. Here, the question of the
influence of the German philosophical tradition of Neo-Kantianism, in particular,
Hermann Cohen, Ernst Cassirer and Hans Vahinger, becomes pertinent; together
with Max Webers influence on Kelsens epistemological and methodological theo-
ries. For, Kelsen is convinced that scientific knowledge has to reject absolute value
in general and absolute moral values in particular because an absolute value can
be assumed only on the basis of religious faith in the absolute and transcendent
authority of a deity (Kelsen 1967, 63).
This orientation is based on a distinct interpretation of history, namely, on an
empirical observation of the development of ideas and ideologies in space and time.
Hence, for Kelsen, if the history of human thought proves anything, it is the futility
of the attempt to establish, in the way of rational considerations, an absolutely cor-
rect standard of human behaviour, and that means a standard of human behaviour as
the only just one (Kelsen 1957, 21). The reason is that at different times and with
different nations and even within the same nation, depending on various classes and
professions, very different and contradictory moral systems are valid, all claiming
to express the absolute truth (Kelsen 1967, 64). These different moral systems each
create, in turn, their own hierarchy of values. As Kelsen explains:
The answer to the question concerning the rank of the different values such as freedom,
equality, security, truth, lawfulness, and others, is different according to whether to the ques-
tion is answered by a believing Christian, who holds his salvation more important than
earthly goods; or by a materialist who does not believe in an after-life (Kelsen 1957, 7).

For Kelsen, [i]n view of the extraordinary heterogeneity of what men in fact
have considered as good or evil, just or unjust, at different times and in different
places, one is led to a relativist approach to values (Kelsen 1960, 64). He concludes
that no common element to the contents of the various moral orders is detectable
(Ibid.). If all moral systems postulate to preserve the peace, the justice, the good,

The further, extended reflection upon this is undertaken by Bobbio in (Bobbio 1990/1991).
1
180 V. Champeil-Desplats

the conformity to natural law, then Kelsen emphasizes, these aims and the means to
achieve them are very different and often in opposition once one compares each
moral system (Ibid.). Therefore, the pretension to express absolute justice and
morality is actually relative, relative to the different perspectives, to the historical
and political context in which the moral values are upheld. Conceptions of morality
and justice depend on a subjective, and therefore only relative, judgment of value
(Kelsen 1957, 7; 198).
The general postulate, made under the supposition of a relativistic theory of
value, to separate law and morals and therefore law and justice has two essential
consequences in Kelsens general theory of law. As Kelsen explains, this postulate
merely means this: (1) if alegal order is judged to be moral or immoral, just or
unjust, these evaluations express the relation of the legal order to one of many pos-
sible moral systems but not to the moral system and therefore constitute only a
relative, not an absolute, value judgement; and (2), the validity of a positive legal
order does not depend on its conformity with a moral system (Kelsen 1967, 6667).
These two consequences are directly in contradiction and incompatible with the
modern theories of human rights and, in particular, with their thesis concerning the
foundation and definition of law.

10.2.2 Theoretical Oppositions

The theoretical opposition of Kelsens thought to the main thesis of modern theories
of human rights is based principally upon three elements. Contrary to these theories,
the Kelsenian general theory of law presents a global indifference to the content of
the law; it develops a critical approach to natural law as the foundation for legal
norms and legal orders; and it questions the traditional dualism established between
State and law.

10.2.2.1 T
 he Indifference oftheKelsenian General Theory ofLaw
totheContent oftheLaw

Kelsens continual, insistent assertion and defence of the Pure theory of law is com-
bined with the demarcation of the central objects of a general theory of law as the
structure and the form of the law, and not the content of norms. In particular, only a
study of the structure and the form of legal systems can identify the specific charac-
ter of law and provide an understanding of its validity. Hence, a legal system can be
specifically determined and defined without reference to either moral values or to
human rights, which are then only contingent elements. Indeed, on the one hand,
some legal systems do not include a declaration or even a minimum list, of these
rights. On the other, in legal systems where they are included, human rights are,
from a formalist approach to law, not considered to have a superior status to other
types of subjective rights or other legal norms.
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 181

This well-known theoretical position constitutes the basis for a number of criti-
cisms which reveal the limitations and difficulties of the moral theory which remains
present in Kelsenian formalism. These criticisms are located at two levels of
Kelsens theoretical position. First, the formalist approach is considered to be one
which is essentially reductionist. The pure theory of law, as a theory of legal positiv-
ism, is unwilling and unable to comprehend and explain the irreducible moral or
ethical property of legal norms. For, the Kelsenian understanding of law, in general,
and of human and fundamental rights, in particular, prevents the adoption and
endorsement of this non-reductionist reasoning (Peces-Barba 2004, 49 ff.). On the
other hand, the Kelsenian approach is held to reject the presence of any idea of jus-
tice which is integral to law and, in this rejection, compound the difficulties of its
position with regard to morality and ethics. From the formalism of legal positiv-
ism, as a pure theory of law, it would appear that the Kelsenian conception of law
confers the status of legal system and, thus, implicitly, the associated legitimacy or
justification, upon any type of political system and, more specifically, confers this
status upon the Nazi State (Haldemann 2005).
Kelsen explicitly acknowledged the purportedlyscandalouseffect of this meth-
odological purity, in the first edition of the Pure theory of Law of 1934, in its recogni-
tion of the Soviet Union as a legal system. Kelsen, of course, rejects these criticisms,
arguing that there is a misunderstanding of the consequences which flow from the
methodological presuppositions of the Pure theory of Law. He recalls that he is con-
cerned with the principle of the axiological neutrality of science which has, as its
necessary corollary, a political indifference, the anti-ideology of his theoretical
analysis. Thus, the nature of political regimes, their values, and the content of their
fundamental norms are not held to be determinant in the process of identifying and
establishing the existence of a legal order. The notion of a legal order applies, without
distinction, to the Soviet Union, the Fascist system in Italy or the French democratic-
capitalist system (Kelsen 1967, preface to the French edition).

10.2.2.2 T
 he Rejection ofNatural Law astheFoundation
forPositiveLaw

Kelsen presents a developed criticism of natural law at the beginning of The Pure
Theory of Law, discussing the relationships between the concepts of law and nature
(Kelsen 1967, Heading 1). This is in addition to a number of articles, many of sub-
stantial length, which are entirely devoted to the critical engagement with natural
law, for example, The Natural Law Doctrine Before the Tribunal of Science
(Kelsen 1957, 137173). In this article, Kelsen directly criticizes the theoretical
foundations of early formulations of natural law doctrine, in particular, that those of
Grotius and Pufendorf, as well as those of a number of later theorists considered to
be representative of the modern theories of human rights, such as Locke. Kelsen
discusses the central thesis of the doctrine of natural law according to which it is
possible to deduce, from nature, legal norms commanding human behaviour. In
other words, nature would be the supreme legislator. From the observation of
182 V. Champeil-Desplats

nature, it would then be possible to establish holy rules from which natural human
rights derive and which,on this basis, are impervious to an alteration by positive law
(Kelsen 1957, 127). Kelsen formulates several objections to the traditional concep-
tion of human rights derived from natural law, objections which, towards the end of
the twentieth century, Norberto Bobbio re-examined and further developed in The
Age of Human Rights (Bobbio 1990).
The first main objection is both ontological and epistemological. Kelsen indi-
cates that natural law doctrines create confusion between the notion of scientific
laws of nature and the notion of law in the domains of morality and positive law.
These doctrines presuppose a common underlying principle of causality for scien-
tific and moral laws. However, in the Pure Theory of Law, in particular, the whole
Kelsenian orientation is directed to the demonstration that, in the domains of moral-
ity and law, the relationships between rules and factual behaviours are not causal but
rely on imputation (Kelsen 1967, Title III). Recalling Humes Law, Kelsen argues
that it is not possible to establish a reciprocal, logical inference between what it is
and what it ought to be (See also, Kelsen 1957, 131 ff.).
The second main objection is based on considerations derived from the history
of moral thought and natural law. Kelsen proposes here a condensed formulation of
his more general argumentation against the absolutist moral philosophies. He
observes that there exist a plurality of ultimate values capable of founding the dif-
ferent doctrines of natural law (individual freedom, property, social peace, and so
on). Natural law can, then, be interpreted in various ways: there is not one but sev-
eral conceptions of natural law which, finally, create an internal contradiction within
the tradition of jusnaturalism. From within natural law itself, through the various
theorists and theoretical schools, it is also evident that its theoretical formulations
are capable of deducing distinctly different indeed even opposed rules or rights
(Kelsen 1957, 132 ff).
The third main objection concerns the dualism between natural law, conceived in
the modern theories as objective and auto-obvious, and positive law. First, Kelsen
formulates the same critiques on the possibility of an objective knowledge of the
natural law as those articulated in opposition to the possibility of an objective
knowledge of values. Secondly, regarding the dualism of natural law and positive
law itself, the objection is in accordance with the traditional thesis of dualism
between the State and law that Kelsen developed earlier.

10.2.2.3 The Negation oftheTraditional Dualism ofState andLaw

Separating law and morality, Kelsen considers the purported human rights which
would not be integrated into a positive legal system, not as actual rights, but rather
as moral pretensions. Consequently, there are neither superior, nor anterior, rights
as expressions of legal norms in relation to the State and the legal system. Hence,
for Kelsen, the diverse theses of dualism of State and Law have an ideological func-
tion, containing a specific tendency to submit the State and the will of people to an
external set of moral values. (Kelsen 1967, 284 ff.). This fundamental conception
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 183

leads to the defence of two theses in direct opposition to a typical modern theory of
human rights.
The first thesis, involves the radical negation of the idea of human rights itself.
This is emphasized, in particular, by Michel Troper, whose more general character-
ization of legal positivism arises from specific reference to Kelsen:
If the expression human rights designates rights that human beings would possess and
would practice independently of the State and, even, against theState, then, from a strict
positivist point of view, the problem is very quickly solved: there are no human rights. For
positivists, indeed, human rights as well as all subjective rights, are rights only if they are
recognized by the positive legal order, that is to say [here, Troper refers to Kelsens General
Theory of Law and State], by state organs authorized by the constitution. (Troper 2007,
231).

Then, human rights interest legal science only as positive law (Ibid.), other-
wise they are considered to reside outside the field of legal science.
The second thesis is opposed to the central presumption of modern theories of
human rights, that such rights would protect the human being independently of the
will of the State and against it. All of the contemporaneous theories of the rule of
law State of law (ltat de droit) in the French terminological and conceptual
framework are founded on this idea. On the contrary, for Hans Kelsen, following
his fundamental identification of the law with the State, the whole of the law is
directly or indirectly produced by the State. Above all, the State is no more than a
set of legal norms. The concept of the State of law is then tautological, because
every State is finally a State of law (Kelsen 1967, Chap. 6). Therefore, an external
law binding the State without its will, cannot be imagined, and it cannot be gener-
ally asserted that human rights protect individuals against the State. If we follow the
logic of Kelsens general theory of Law, human rights can be legal norms, insofar as
they are produced by the State itself, in order to protect individuals, through some
states organs (in particular judges) against others (executive organs or parliament).
They are binding norms only through the State and its process of self-limitation.

10.3 T
 he Presumption ofHuman Rights intheMeta-Ethical
andtheOverarching Structure ofKelsens Thought

As the foregoing has emphasized, in contrast to modern theories of human rights,


Kelsen does not hold that there exists an absolute morality but, rather, a plurality of
concurrent moral orders. The personal choice to adopt one of them does not result
from an objective or a rational reasoning. It depends on subjective meta-ethical
preferences. Thus, the purpose of the analysis is now to demonstrate how Kelsens
meta-ethical preferences, characterized, above all, by the defence of the freedoms of
thought, opinion, speech and science, indicate significant areas of connection
between his epistemological and theoretical choices and the underlying principles
of modern theories of human rights. The connection is evident, first, in the combina-
tion of relativism and freedom of values that Kelsen strongly links to the concept of
184 V. Champeil-Desplats

democracy and which form an essential element of his conception of the vocation
of the legal scientist, namely, to his epistemological stance (10.3.1). In addition,
Kelsens works contain utilitarian and functional characteristics, according to which
the law imposes itself as the best means to protect and guarantee human rights
(10.3.2).

10.3.1 F
 rom theProfessional Role oftheScientist toEthical
andPolitical Preferences

As Kelsen strongly emphasizes:


Because democracy, by its very nature, means freedom, and freedom means tolerance, there
is no other form of government which is favourable to science. Science can prosper only if
it is free and it is free if there is not only external freedom, that is independence from politi-
cal influence, but if there is also freedom within science, the free play of arguments and
counter arguments (Kelsen 1957, 24).

Thus, Kelsen concludes:


Since science is my profession, and hence the most important thing in my life, justice, to
me, is that social order under whose protection the search for truth prospers. My justice,
then, is the justice of freedom, the justice of peace, the justice of democracy the justice of
tolerance (Ibid).

Consequently, it will be demonstrated that it is mainly from his position of a


scientist, based on the relativism of values, in opposition to metaphysical and ideo-
logical postures that Kelsen justifies and defends his subjective preferences for
democracy, tolerance and freedom.

10.3.1.1 Freedom, Relativism andScience

The ideal of axiological neutrality to which Kelsen adheres prevents him from
defending ideological or moral values from within the framework of a scientific
activity. Nevertheless, two paths are open to positivists to assert their political, ideo-
logical or moral preferences. The first is to express them outside the field of scien-
tific discourses. This presupposes the ability to strictly demarcate this type of
discourse from others and to separate the position of the scientist from the position
of the citizen or the moralist. The second path installs political, ideological or moral
preferences at a meta-ethical level, in order to demonstrate that some values impose
themselves as the best guarantees for the achievement of scientific aims and ideals.
Kelsen proceeds along this second path. His works present several developments
dedicated to demonstrating that, at an ethical level, a relativist position and, at a
political level, democracy, yield the best protection of the freedoms necessary for
the development of legal scientific activities.
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 185

For Kelsen, the relativist meta-ethical attitude is, then, on the one hand, the sci-
entific one par excellence and, on the other hand, appears as the best manner in
which to guarantee freedoms and human rights. His demonstration opposes the
main characteristics of a relativist meta-ethical posture to an absolutism one. The
absolutist position asserts the moral supremacy of a specific set of values; it excludes
both the possibility to place these particular values into question and to defend the
validity of another moral order (Kelsen 1967, Chap. 2). The preferred moral order
is simply presumed not merely to be true but, moreover, to be the only one which is
true. Kelsen underlines that the radical attitude underlying absolutism cannot be
maintained for long because, due to the plurality of values, it immediately confronts
the possibility of the existence of another concurrent absolutist moral order which
itself also purports to express the truth.
In contrast, the relativist position presupposes and accepts discussions on prob-
lems of values because, far from denying the existence of values as it is sometimes
argued, it clearly and overtly admits the existence of a plurality of concurrent val-
ues. As Kelsen explains in the Pure Theory of Law: a relativistic theory of value is
often misunderstood to mean that there are no values and, particularly, that there is
no justice. It means rather that values are relative, not absolute, that justice is rela-
tive not absolute; that the values as established by our norm-creating acts cannot
claim to exclude the possibility of opposite values. But, he adds, it does not mean
that there is no moral standard for the evaluation of positive law. It only means that
in judging a positive legal order from a moral point of view the standard of
evaluation is relative and that an evaluation based on a different moral system is not
excluded. (Kelsen 1967, 67). Consequently, the particular moral principle involved
in a relativistic philosophy of justice is the principle of tolerance, and that means the
sympathetic understanding of religious or political beliefs of others without
accepting them, but not preventing them from being freely expressed Tolerance
means freedom of thought (Kelsen 1957, 2223). Thus, the relativist ethical pos-
ture is sceptical but espouses a scepticism which is neither cynical, nor nihilist. It
proposes the establishment of a new basis, purged of potential metaphysical inter-
ference, to found, or better, to justify and to defend a meta-ethics of freedom.

10.3.1.2 Freedom, Relativism andDemocracy

Within the Kelsenian framework, this opposition between relativism and absolutism
meta-ethical positions has important consequences especially in fundamental
political attitudes. The metaphysical absolutist view corresponds with an autocratic
attitude, the critical relativist with a democratic one (Kelsen 1929, 197). In his
article, Absolutism and relativism in philosophy and politics, in particular, Kelsen
argues for a clear analogy and an evident parallelism between these two fields of
thought (Kelsen 1957, 198).
The antagonism between autocracy and democracy is representative in various
aspects of the antagonism between absolutism and relativism in philosophy. While
Kelsen links the absolutist political system to a philosophical absolutism and a
186 V. Champeil-Desplats

totalitarian epistemology based on the certitude of the existence of the and only
one truth, he connects democracy with relativism. Democracy and relativism both
rely, first, on common values and fundamental principles of freedom and equality
and, second, on a common doubt and need for deliberations regarding, on an one
hand, political decisions and, on the other, legal scientific propositions (Kelsen
1957, 201 ff.).
Thus, the core of the democratic system is to enable the temporal and conven-
tional closure or resolution of deliberation through the principle of majoritarianism,
as more respectful of the will expressed by the largest set of people. Indeed, as
Michel Troper emphasizes
[f]or Kelsen, democracy defines itself as a system in which, since there are no absolute
values, individuals must be able to abide by norms which are in conformity with their own
values[T]he principle of autonomy transforms itself into a principle of majority, not
because unanimity is practically impossible, but because it entails that a single individual
[as the holder of a particular set of values] is capable of opposing him or herself to all the
others (Troper 2007, 243244).

Moreover, the principle of majoritarianism presupposes the existence, and the


preservation of, a political minority in order to allow it to become the political
majority in the future. To preserve the minority, the guarantee of some basic rights
is required. Kelsen specifies this in On the Essence and Value of Democracy: for
the concept of a majority assumes by definition the existence of a minority, and thus
the right of the majority presupposes the right of a minority to exist. From this arises
perhaps not the necessity, but certainly the possibility, of protecting the minority
from the majority. This protection of minorities is the essential function of the so-
called basic rights and rights of freedom, or human and civil rights guaranteed by
all modern constitutions of parliamentary democracies. (Kelsen 1929, 100; see also,
Kelsen 1945, 287).
These rights and freedom referred to by Kelsen appear similar to those defended
by modern theories of human rights. Nevertheless, their foundation and ontological
conception are very different. For modern human rights theories, such rights have to
be protected because they result from natural law and they form a part of the social
contract. For Kelsen, the ultimate justification of the necessity of rights and free-
doms reveals itself to be pragmatic and evolutionary. It is linked to his conception
of democracy. For all citizens to be able to participate in the formation of the general
norms, and express themselves, they require political meetings, newspapers,
books, and other vehicles of public opinion. A democracy without public opinion is
a contradiction in terms. Insofar as public opinion can arise only where intellectual
freedom, freedom of speech and press and religion, are guaranteed, democracy
coincides with political though not necessarily economic liberalism (Kelsen
1945, 288). It is Norberto Bobbio who, after Kelsen, will adopt a similar form of
argumentation in order to demonstrate that a relativist ethical position establishes
itself as the best manner in which to guarantee human rights (Bobbio 1990).
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 187

10.3.2 L
 aw asaTechnical Means fortheProtection
ofHuman Rights

Within Kelsens theory, law appears simply as a means which can serve a plurality
of ideological ends. Kelsen offers an instrumental or functional approach to law.
The people or another origin of politics determine general goals, and law provides
a set of procedures to achieve them. Therefore, such an approach to law presents
different levels of generality. At the highest level, law is actually not an indifferent
means. For Kelsen, law is an intrinsically peaceful means for the resolution of con-
flicts. Furthermore, it is the best one for a peaceful resolution of conflicts both
within States and at the international level: peace comes through law (Kelsen 1944).
Kelsen is, then, an exemplary representative of the school of legal pacifism (see
Bobbio 1989). At a lower level of generality, Kelsen defines law as a normative
system determining specific rules and procedures to achieve goals chosen by the
people or their governments. At this level, human rights and their integration in a
means-ends relationship can be observed in two main frameworks. In Kelsens
work, it appears that human rights maintain a dialectical relationship with the con-
cept of democracy (2.2.1). This is accompanied by Kelsens promotion of a juridical
form the constitutional court as a means to protect the rights and freedoms of the
political minority.

10.3.2.1 T
 he Dialectical Relationship BetweenHuman Rights
andDemocracy

In Kelsens work the relationships between human rights, freedoms and democracy
appear to be dialectical. On the one hand, democracy is conceived as a technical
means for the guarantee and furtherance of human rights and freedoms. But, on the
other, such a technical means presupposes some basic human rights and freedoms.
Finally, it appears that the Kelsenian concept of democracy reveals itself as the best
form in which to guarantee human rights, because it presupposes basic freedoms.
However, Kelsen does not expressly indicate and define the synthetical unity of this
dialectical process.
In order to comprehend more fully why it can appear difficult to link human
rights and democracy in accordance with Kelsens reasoning, and why he proposes
a specific approach, one must keep in mind that for Kelsen, in conformity with a
significant number of other political theories, democracy is the best form of govern-
ment to guarantee human rights. However, in contrast to other democracy-supporting
theories, Kelsen does not base his arguments on metaphysical beliefs nor on onto-
logical principles. He defends his position from a purely functional and evolution-
ary perspective. According to Kelsen, democratic legal systems principally provide
technical means. Technical, because Kelsen upholds a procedural in direct con-
trast to substantial definition of democracy. For Kelsen, democracy is no more
188 V. Champeil-Desplats

than a set of specific procedures and rules defined by legal systems. These rules do
not determine a priori, moral, political or economic choices which are necessarily
dependent only on the free and regular expression of the will of the people. Hence,
if democracy presents itself as the best form of government, it is not because, as
previously endorsed by modern theories of human rights, a catalogue of basic
rights and rights of freedom would assure on their own the protection of the indi-
vidual against the State. The reason is, rather, that democracy involves the pro-
tection of a minority, a qualified minority, from the absolute majority (Kelsen
1929, 101; Kelsen 1957, 354). For Kelsen, democracy is based, above all, on the
procedures that recognize the principle of majoritarianism, and that provide regular
elections and fixed terms of political office. Then, democracy presupposes that
everybody can freely and equally participate in the process of election, preserving
minority rights and freedoms (speech freedom and right to express freely its opin-
ion), as well as freedom of thought and expression (Kelsen 1957, 206 ff.). These
basic principles purportedly ensure the conditions that will permit a plurality of
political choices and their potential alternations.
Under these strict conditions democracy stands out, for Kelsen, dialectically, as
the best form of government to guarantee tolerance, equality and freedom, and,
consequently, to assure certain basic human rights. With a typical conditional form
of argumentation, he was able to explain that the reason for considering democracy
as the best form of government was not based on an ontological essence of the con-
cept of democracy, but upon its procedural rules which themselves are compatible
with the purposes and objectives of the people. In other words, the Kelsenian argu-
ment takes the form if, then: if the people want freedom, and consider it as a
supreme value, then democracy is the best form of government (Kelsen 1957,
354ff.).
Finally, Kelsens preference for democracy is apparently in accordance with his
own meta-ethical preferences. He can, from this perspective, clearly argue that
democracy is a just form of government only because it is a form of government by
which and under the condition that individual freedom is preserved. If
democracy is a just form of government, it is so because it means freedom, and
freedom means tolerance. (Kelsen 1957, 10; 23).

10.4 C
 onclusions: ConcerningtheProtection ofRights
byConstitutional Courts

As it is well known, Kelsen is considered as the European father of constitutional


review. Nevertheless, regarding contemporary developments, Kelsen did not pro-
mote an extensive form of judicial control. For Kelsen, the constitutional courts
ensure a negative legislative function, because they have to reject unconstitutional
norms regarding procedural rules. However, Kelsen was particularly concerned
with the possibility of the constitutional courts controlling the law by reference to
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 189

general, vague and ambiguous legal statements, particularly those articulated in the
form of human rights (Kelsen 1931). He considered that, by allowing constitutional
review through the language of abstract statements, the negative control would
become transformed into a positive or substantial one. The consequences would be
then that the constitutional courts, in their judicial role, would progressively usurp
the legislative power of Parliament. Kelsen very explicitly denounces this as a risk
and he considers that such a transformation in the manner of control would have the
potential to play an extremely dangerous role by effectively seeking to perform an
unbearable transfer of power from Parliament to the constitutional court (Kelsen
1928, 240242; see also Kelsen 1931, 126). Consequently, in order to avoid legisla-
tive power sliding from Parliament to the constitutional courts, he recommends that
vague and ambiguous phraseologies like those proclaiming values of justice, lib-
erty, equality, equity, morality, be excluded from the process of constitutional
review (Kelsen 1931, 86).
Concerning this Kelsenian position, it may be concluded that, contrary to the
post-modern or neo-constitutionalist evolution of constitutional review (Dworkin
1996, Sager 2004, see, also, Pozzolo 2001, Comanducci etal. 2009, Barberis 2011),
Kelsen did not conceive it as a means to protect human rights. But such a conclusion
appears too severe. It is, indeed, possible to argue, on the one hand, that Kelsen did
not directly lay the foundations, through constitutional review, of a general and
systematic protection of human rights for individuals. But on the other hand, it is
also possible to emphasize that constitutional courts indirectly protect rights and
freedom by the mediation of the protection of rights conferred upon political minor-
ities. For Kelsen, indeed, the possibility for political minorities to commence an
action before the constitutional court encourages the majority to concede and to
compromise, which is favourable for social peace (Kelsen 1928, 240242).
Constitutional review appears, finally, to be consistent with the general spirit of the
procedural conception of democracy and law as proposed by Kelsen, being a struc-
tural mechanism of political regulation, rather than a substantive mechanism for the
protection of individual freedoms and rights.
On the basis of such a conclusion, it is possible to indicate some essential differ-
ences between Kelsens conception of human rights and constitutional review with,
retrospectively, the modern theories of human rights and, then, prospectively, with
the post-modern or the so-called neo-constitutionalist theories. From this analy-
sis, Kelsen could be then considered as marking a point of transition in the theory of
constitutional law on these questions.
As with Kelsen, modern theories of human rights did not consider constitutional
review as a central element for the protection of human rights. However, the under-
lying reasons are significantly different from those of Kelsen. Either modern theo-
ries of human rights did not recognize in any way this type of regulation of the law,
because they so strongly, and perhaps naively, identified the legislative role as the
exclusive domain of the Parliament, or they considered that constitutional review
was, above all, not intended to guarantee human rights but to regulate the exercise
of competences between the various organs of the state. In this conceptual context,
the guarantee of human rights was essentially linked to the fact that the law was seen
190 V. Champeil-Desplats

as the expression of the general will or the question of a mechanism for the separa-
tion of powers (Guastini 1991).
In relation to post-modern or neo-constitutionalism theories, the Kelsenian con-
ception of the connection between constitutional review and human rights appears
paradoxical. More precisely, Kelsen could be considered an unintended precursor of
neo-constitutionalism. He appears as a precursor, because he is, above all, recog-
nized as having conceptualized a hierarchical representation of law in which the
constitution is a set of norms placed at the apex or origin of the legal system. Neo-
constitutionalist theories are also based on the postulate of the supremacy of consti-
tutional norms, in particular, those expressing the values of human rights, now
qualified as fundamental rights (Pozzolo 2001; Champeil-Desplats 2012). Kelsen
can also be considered as a precursor of neo-constitutionalism insofar as he links the
respect of the hierarchy of legal norms, and especially constitutional norms, to the
institution of judicial review, an idea that is also central in neo-constitutionalist
theories.
Nevertheless, Kelsen is a paradoxical precursor regarding neo-constitutionalist
theories because these theories accept the possibility of the attainment of an objec-
tive knowledge of values, and defend an interdependence between law and moral
values. Consequently, the validity of each legal norm depends on its conformity
with constitutional norms insofar as those norms express moral values or the ideal
of justice. On the contrary, as has been previously indicated, Kelsen introduces and
maintains a strict separation of law and morality, and establishes himself as a non-
ethical cognitivist.
Kelsen is also a paradoxical precursor because, according to neo-constitutionalist
theories, the legitimacy of contemporary States is determined by the content of their
constitution. Constitutional law has to assert a juridical structure which contains
both a normative and axiological model with moral values specifically expressed
by fundamental rights (Comanducci etal. 2009). In other words, fundamental rights
are an essential element of the legal system. Thus, the Constitution does not only
establish who has competences and how to create the valid norms of a legal system,
but also what content may be accorded to the valid legal norms (Ibid., 23). On the
contrary, the definition of the constitution is, for Kelsen, not dependent on the pres-
ence or absence of fundamental rights. In other words, fundamental rights appear as
a contingent element of the legal system.
Finally, Kelsen is a paradoxical precursor because, as already emphasized, he
was very suspicious about entrusting constitutional review to the interpretation and
application of norms expressed with vague, general and ambiguous statements, as
exemplified by human rights. The exercise of this type of control would appear, for
Kelsen, in contrast to the position of neo-constitutionalist theories, as a direct chal-
lenge to democracy, rather than a condition for it. Kelsen may then be considered as
the father of European constitutional review but as a father whose influence does not
extend to subsequent neo-constitutionalist evolutions and development, which
shape and orientate contemporary theories of human rights.
10 Hans Kelsens Works andtheModern Theories ofHuman Rights 191

References

Barberis, M. 2011. El neoconstitucionalismo, Third Theory of Law. In Neoconstitucionalismo,


Derecho y derechos, edited by S. Pozzolo, 251275. Lima: Palestra editores.
Bobbio, N. 1989. Il terzo assente. Milan: Edizioni Sonda.
Bobbio N. 1990. LEt dei diritti. Turin: Einaudi (English translation: Bobbio, N. 1991. The Age
of Human Rights. Cambridge: Polity Press).
Champeil-Desplats, V. 2012. La thorie gnrale de lEtat est aussi une thorie des liberts fonda-
mentales. Jus Politicum 8. http://juspoliticum.com/La-theorie-generale-de-l-Etat-est.html.
Comanducci, P., M.A. Ahumada, and D.G. Lagier. 2009. Positivismo jurdico y neoconstitution-
alismo. Madrid: Fundacin coloquio jurdico europeo.
Dworkin, R. 1996. Freedoms Law. The moral reading of the American constitution. Oxford:
Oxford University Press.
Guastini, R. 1986. Thorie et ontologie du droit chez Dworkin. Droit et Socit 2: 1522.
. 1991. Rflexion sur les garanties des droits constitutionnels et la thorie de linterprtation.
RDP: 10791090.
Haldemann, F. 2005. Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law. Ratio Juris 18 (2):
162178.
Kelsen Hans. 1929. Essence and Value of Democracy. reprinted. Rowman & Littlefield Publishers,
2013.
. 1928. La garantie juridictionnelle de la Constitution (La Justice constitutionnelle). Revue
de droit public 35: 197257.
. 1931. Wer soll der Hter der Verfassung sein? (French translation: Qui doit tre le gardien
de la constitution? Paris: Michel Houdiard, 2006).
. 1944. Peace through Law. Chapel Hill: The University of North Carolina Press.
. 1945. General theory of Law and State. New Jersey: The Lawbook Exchange, Ltd..
. 1957. What is Justice? Berkeley: University of California Press.
. 1967. Pure Theory of Law. Trans. Max Knight. Berkeley: University of California Press,
1967, reprinted: Lawbook Exchange, Ltd., 2005. (German original 1960).
Peces-Barba, G. 2004. Thorie gnrale des droits fondamentaux. Paris: LGDJ.
Pozzolo, S. 2001. Neocostituzionalismo e positivismo giuridico. Turin: Giappichelli editore.
Ramos Pascua, J.A. 2007. Positivismo jurdico y derechos humanos. In Jurisdiccin, interpre-
tacin y sistema jurdico, edited by Prez Bermejo, Juan Manuel, and M.A. Rodilla, 111136.
Salamanca: Ediciones Universidad Salamanca.
Sager, L.G. 2004. Justice in Plainclothes. A Theory of American Constitutional Practice. New
Haven: Yale University Press.
Troper, M. 2007. Le positivisme et les droits de lHomme. In Bentham contre les droits de
lHomme, edited by B. Binoche and J.-P. Clro, 231248. Paris: Presses Universitaires de
France.
Chapter 11
Kelsen onDemocracy inLight
ofContemporary Theories ofHuman Rights

ChristineChwaszcza

Abstract There is little agreement in contemporary political philosophy about how


to conceive of human rights, except for a shared concern for freeing the concept of
human rights from the legacy of traditional natural law theories. Even so, there is no
place for anything like a reconciliation of Kelsens political-legal theory with a con-
temporary concept of human rights. The reason is not that Kelsens well-known and
notorious criticism of various natural law traditions applies equally to contemporary
philosophy of human rights, but that Kelsens account of democracy is incompatible
with the idea of human rights. For despite all differences in detail, philosophers tend
to conceive of human rights as substantive normative principles, which articulate
standards of legitimacy for socio-political institutions that protect individual per-
sons from legal or political overreach. By contrast, Kelsen conceives of democracy
essentially as a method of legislating based on procedural authorization that imposes
no substantive restrictions on the very content of laws. True, Kelsen explicitly
defends constitutional basic and liberty rights with the argument that insofar as
majority rule is essential to democracy, protection of minority rights is so too. But
Kelsens account of those constitutional rights falls short of any idea of human
rights, for constitutional rights are merely instrumental to the maintenance of
democracy and articulate constitutional particulars of democratic states, not general
substantive standards for legitimate government.

There is little agreement in contemporary political philosophy about how to con-


ceive of human rights, except for a shared concern of freeing the concept of human
rights from the legacy of traditional natural law theories. Even so, there is no place
for anything like a reconciliation of Kelsens political-legal theory with a contem-
porary concept of human rights.
The reason is not that Kelsens notorious criticism of various natural law tradi-
tions (Kelsen 1928) applies equally to contemporary philosophy of human rights,
but that Kelsens account of democracy is incompatible with the idea of human

C. Chwaszcza (*)
Department of Philosophy, University of Cologne, Cologne, Germany
e-mail: christine.chwaszcza@uni-koeln.de

Springer International Publishing AG 2017 193


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_11
194 C. Chwaszcza

rights. For despite all differences in detail, philosophers tend to conceive of human
rights as substantive normative principles, which articulate standards of legitimacy
for socio-political institutions that protect individual persons from legal or political
overreach. By contrast, Kelsen conceives of democracy essentially as a method of
legislating based on procedural authorization that imposes no substantive restric-
tions on the very contents of laws. True, Kelsen explicitly defends constitutional
basic and liberty rights with the argument that insofar as majority rule is essential
to democracy, protection of minority rights is so too. But Kelsens account of those
constitutional rights falls short of any idea of human rights, for constitutional rights
are merely instrumental to the maintenance of democracy and articulate constitu-
tional particulars of democratic states, not general substantive standards for legiti-
mate government.
In the following, I will offer a systematic reconstruction of the normative and
analytical pillars of Kelsens account of democracy as articulated in his political
writings. My first section explores Kelsens republican concept of political free-
dom and its relevance for the function of constitutional rights in Kelsens under-
standing of democracy and majority rule (see Kelsen 1929). The second section will
briefly comment on Kelsens formal concept of legality. The third section will
explore the theoretical background of Kelsens later defence of democracy (see
Kelsen 1955). The fourth section will present a liberal alternative to Kelsens
analysis of the workings and normative foundations of majority rule. The fifth sec-
tion will contrast my interpretation of Kelsens account of democracy with that of
Vinx (2007). Finally, the sixth section will explore the systematic possibilities to
reconcile Kelsens notion of the function of constitutional rights with some recent
philosophical accounts of human rights.

11.1 K
 elsens Republican Foundation ofDemocracy
andSovereignty ofthePeople

Kelsen is best known as a legal theorist. He did, however, write several book-length
essays and articles in defence of democracy, in which he develops a political theory
of democracy (Kelsen 2006). From as early as his Wesen und Wert der Demokratie
(The Essence and Value of Democracy),1 Kelsen argues for a version of representa-
tive democracy that includes acknowledgement of what he calls Grund- und
Freiheits-, oder Menschen- und Brgerrechte, literally basic and liberty rights, or
human and civil rights in the form of constitutional rights. But whereas Kelsen
argues at length that the doctrine of sovereignty of the people is best understood
as requiring a system of political representation, which he develops into an account

1
First published 1920; I will rely on the enlarged second edition (Kelsen 1929), which includes his
analysis of the concept people in sovereignty of the people in its English edition (Kelsen
2013); page numbers without brackets refer to the English edition, page numbers inside brackets
to the original 1929 edition.
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 195

of parliamentarianism, an analysis of the role of political parties and a defence of


representative democracy,2 he has very little to say about the content of basic and
liberty rights. What little he does say concerns their function in the practice of
democracy. In order to better understand that role, one best begins with Kelsens
understanding of political freedom.
Democracy, according to Kelsen, is essentially characterized by majority rule as
a method of legislative decision-making. Its normative foundation, he argues, is the
ideal of freedom and not that of equality. Even though equality plays a role insofar
as democracy requires equal political freedom, only the idea of freedom provides a
reasonable foundation for majority rule.
It is from this idea [of freedom], and notas is often thoughtfrom the idea of equality,
that the principle of the majority is derived. The majority principle certainly presupposes
the equality of human wills. But the equality is only a metaphor. It cannot connote the abil-
ity to effectively measure and add those human wills. It would be impossible to justify the
majority principle that more votes carry a greater total weight than fewer votes. The purely
negative assumption that the will of one person should not count more than the will of
another does not entail the positive claim that the will of the majority should rule. []
Instead, the only sensible premise for the principle of majority is the idea that, if not all,
then at least as many individuals as possible should be free. This means that the number of
individual wills in conflict with the general will of the social order should be minimized.
The fact that not just this or that individualsince one is not more worth than anotherbut
rather that the greatest possible number of individuals should be free constitute an essential
postulate of democracy. (Kelsen 2013, 31 [9f.])

Freedom, however, is of two sorts: natural freedom and political freedom. Natural
freedom is an anti-social instinct; in Kelsens words, an aversion against heteron-
omy, meaning an aversion against being subject to other persons wills (Kelsen
1955, 18f.; Kelsen 2013, 27 [1]). In democratic regimes, natural freedom is trans-
formed into political freedom, which is participation in self-government, i.e., sover-
eignty of the people, understood as participation in the election of government.3
Kelsens theory of democracy articulates a strong criticism of Rousseaus thesis that
sovereignty cannot be represented and defends representative parliamentary
democracy.
Distinguishing the idea of democracy from its practice, Kelsen maintains,
pace Rousseau, that a democratic regime is not only possible, but is optimally real-
ized if the doctrine of sovereignty of the people is transformed into representative
government and, more precisely, into a parliamentary democracy with political par-
ties. Kelsens main argument is a rather elaborate rejection of the idea of a common,

2
See Dreier (1997) on the way in which Kelsens account of democracy opposes those of espe-
cially other German theorists during the Weimar Republic and the pre-fascist era.
3
For society and state to be possible, there must be a valid normative order regulating the mutual
behavior of men, i.e. there must be rule [Herrschaft]. But if we must be ruled [beherrscht werden],
then we only want to be ruled by ourselves. Natural freedom is transformed into social or political
freedom. To be politically free means to be subject to a will, which is not, however, a foreign will,
but rather ones own will [Von der natrlichen Freiheit lst sich die soziale oder politische Freiheit
ab. Politisch frei ist, wer zwar untertan, aber nur seinem eigenen, keinem fremden Willen untertan
ist.] (Kelsen 2013, 28; [4; emphasis in the original]).
196 C. Chwaszcza

or general, will of the people in connection with an analysis of the idea of repre-
sentation in parliamentary democracy. Parliament, he rightly argues, does not repre-
sent an entity, called the people and its will, nor does it represent the wills of the
peoples many individual members. But what parliament does represent is a state
institution that is authorized to legislate.4 The concept of the people for Kelsen is
a legal fiction,5 which does not refer to any unity or group of individual persons and
certainly not to the totality of the population of any state. Rather, the concept stands
for the normative status of the electorate, i.e., the political-legal status of those citi-
zens who are invested with the freedom to participate in the election of the parlia-
ment. Since there are no state institutions without a legal order, there also are no
natural persons who are the people. There is only the constitutional order of the
democratic state with its branches, or offices, constitutional rules for their authori-
zation, etc. According to Kelsen, the practice of parliamentarianism, thus strictly
considered, replaces the idea of a common will of the people with that of an
authorized body of the legislature.6
Political freedom understood as sovereignty of the people, thus, consists in
participating in the election of the legislature. As Kelsen rightly observes, in many
regimes that are commonly considered to qualify as democratic, the people lacks
any authority even to participate in legislation7; and nowhere does the electorate
consist of the states entire territorial population but only its qualified members.
Whereas the later Kelsen (1955) endorses universal suffrage, he takes a more
descriptive stance towards the question in 1929 and concedes that regimes can qual-
ify as democratic even if the electorate consists of only a minor part of the overall
population.
The political freedom of the electorate is also more or less exhausted by partici-
pation in political elections, because Kelsen argues that the political agenda is
mainly set not by citizens directly, but by competing political parties, and members
of the legislature are commonly invested with authority to act and decide according
to their own discretion. Although Kelsen strongly rejects requirements of an imper-
ative mandate and the general idea of anything approaching a representation of the
will of the people, he maintains that the political freedom of the electorate is
maximized if electoral rules conform to proportional representation. The method of
decision-making of the legislature itself, by contrast, maximizes political freedom if
decisions are made by simple majority, or as Kelsen says absolute majority,

4
Kelsen, of course, is aware that, in practice, legislation is not exclusively exercised by the legisla-
ture, but the point is not of primary importance in the present context.
5
The concept of a legal fiction derives from Kelsens critical appropriation of the notion of a
fiction from Vaihinger; see Kelsen (1919).
6
Surprisingly, nowhere in his discussion of authorization does Kelsen refer to Hobbes, although he
seems committed by his constitutional analysis to concede that also non-democratically consti-
tuted legislatures can or must be conceived as acting on the basis of authorization, even though
non-democratic authorization. See Chwaszcza (2012), for an interpretation of Hobbes concepts of
authorization and representation.
7
Kelsen is not arguing against plebiscitary elements, quite the contrary, but he does not consider
them necessary for a constitutional order to qualify as democratic.
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 197

because unanimity is practically unrealistic, and qualified majority rules increase


veto-power of single individuals and, thus, restrain the freedom of all others.
Majority rule as a method of legislative decision-making is what essentially
characterizes democracy, because in practice it is the closest approximation to the
ideal of political freedom, i.e., sovereignty of the people.8 In certain passages,
Kelsen seems to argue that the normative value of majority rule consists in the fact
that legislative decisions accord with the judgments or claims of a greater number
of citizens than if another form of rule were used.9 In other passages, though, he
expresses his conviction that, in practice, majority rule facilitates political compro-
mise between diverging or opposing judgments and claims, and he seems to argue
that this is what renders majority rule valuable.10
That the efficacy of the majority principle is not really dependent upon the idea of a numeri-
cal majority is most intimately related to the fact that absolute domination of the majority
over the minority does not actually exist in society. The reason for this is that the will of
society, which is produced according to the so-called majority principle, does not represent
a dictate from the majority against the minority, but is rather the result of mutual interaction
of the two groups and a consequence of their colliding political persuasions. A dictatorship
of the majority over the minority is already not possible, because a minority condemned to
irrelevance will eventually abandon itsnow merely formal and therefore not only worth-
less but downright detrimentalparticipation in government. This would deprive the
majoritywhich by definition is impossible without a minorityof its very character.
(Kelsen 2013, 69 [56f.])

It remains open whether the input and the output argument are considered to
add up to one another or to be mutually independent. The former, obviously, is a
normative argument, whereas the latter articulates an empirical stipulation. It is,
however, important to note that Kelsen considers majority rule essentially as a
method of decision-making.

8
Kelsen emphasizes that even Rousseau required unanimous consent only for the original contract,
he maintains: The same principle [unanimity], which first protected the freedom of the individual
during the establishment of the social order, now enchains him when he is no longer able to with-
draw from that order. The original creation of the social order or of the government is not, after all,
part of our social experience. The individual is usually born into an already established social
order, in the creation of which he did not participate. Thus, he is confronted with a foreign will
from the very beginning. Only the alteration, or development, of the social order is practically in
question. And from this perspective, the principle of an absolute, not a qualified majority repre-
sents the relatively greatest approximation to the idea of freedom (Kelsen 2013, 30f. [8f.]; empha-
sis added).See below for a qualification with respect to constitutional protection of minority rights.
9
See Kelsen 2013, 31 [9f.] quoted above.
10
From the point of view of social reality, the majority principle does not mean that the will of the
numerical majority prevails. Rather, its significance consists in the fact that, under the influence of
this ideology, the individuals making up the social community are essentially divided into two
groups. What is important here is that the tendency to form or to win a majority has the effect of
overcoming the countless impulses in society, which push towards differentiation and division, and
reduces them to a single, basic contradiction. () Initially it is this force of social integration that
sociologically characterizes the principle of the majority (Kelsen 2013, 69 [55f.]).
198 C. Chwaszcza

Political freedom in Kelsens sense is, strictly speaking, a freedom held by a col-
lective, for no single person is sovereign if the people is sovereign.11 His account
of political freedom, therefore, stays within a republican tradition of democracy,
whose main representative in early modern philosophy is Rousseau. Whereas
Kelsen rejects Rousseaus thesis that sovereignty cannot be represented, he agrees
with him that the normative foundation of legitimate government is political free-
dom conceived as participation in self-government, or sovereignty of the people,
even though restricted to voting.
Kelsen is quite aware that the main contender against his account of political
freedom is what Constant (1988) called the liberties of the modern, i.e., individual
freedom from government transformed into accounts of limited sovereignty.
Thus, he is careful to dissociate political freedom in his sense from the liberal tradi-
tion of modern political philosophy and to re-align it with republican traditions,
which emphasize political participation in government rather than freedom from
governmental interference.
The meaning of freedom has changed from the idea that the individual should be free from
state rule to the idea that he should be able to participate in that rule. This transformation
simultaneously requires that we detach democracy from liberalism [bedeutet zugleich die
Loslsung des Demokratismus vom Liberalismus]. Since the demand for democracy is sat-
isfied insofar as those subject to the order participate in its creation, the democratic ideal
becomes independent of the extent to which that order seizes upon them and interferes with
their freedom. Even within the limitless expansion of state power and, consequently, the
complete loss of individual freedom and the negation of the liberal ideal, democracy is
still possible as long as this state power is constituted by its subjects. Indeed, history dem-
onstrates that democratic state power tends towards expansion no less than its autocratic
counterpart. (Kelsen 2013, 32 [10f.; emphasis in the original])

To the extent that sovereignty of the people requires individual freedom, the lat-
ter consists in active and passive voting rights, freedom of conscience, and freedom
of opinion and expression. These, at least, are the rights that Kelsen (1929) explic-
itly mentions when he refers to basic and freedom rights; Kelsen (1955) adds
freedom of scientific research and freedom of press. These rights, he argues, are best
implemented as constitutional rights which, according to Kelsen, require a qualified
majority in order to change them. The acknowledgment of constitutional rights,
thus, somewhat modifies the claim that majority rule is maximally democratic. But
at no point does Kelsen argue that constitutional rights are unalienable or inaltera-
ble. In addition, acknowledgment of constitutional rights for Kelsen is not justified
because of their substantive content, but only because their role, or function, in the
overall scheme of democratic government.
Since democracy is essentially characterized by majority rule, Kelsen con-
tends that it includes recognition of minority rights. He actually argues that insofar
as the very concept of majoritarian rule implies the existence of a minority, the

11
The same thing is expressed by the proposition that only citizens of a free state enjoy freedom.
Individual freedom is replaced by popular sovereignty, and a free state, or republic [Freistaat],
becomes the fundamental demand (Kelsen 2013, 33 [13]).
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 199

right of the majority effectively implies an entitlement of the minority to exist, i.e.,
the freedom of a minority to disagree with the majority.
The very concept of a majority already presupposes the existence of a minority, and, thus,
the right of the minority to exist [Denn die Majoritt setzt ihrem Begriff nach die Existenz
einer Minoritt und es setzt somit das Recht der Majoritt die Existenz berechtigung einer
Minoritt voraus]. Though this does not entail the necessity, it at least raises the possibility
of a protection of the minority.
The protection of the minority is the essential function of so-called freedoms and funda-
mental rights or human and civil rights, which are guaranteed by all modern parliamentary-
democratic institutions. Originally, they were meant to protect the individual from the
executive power, which, still rooted in the legal principle of absolute monarchy, was autho-
rized to infringe upon the sphere of the individual in the name of the public interest, unless
expressively forbidden by law. As soon asas in the case of the constitutional monarchy
and democratic republicboth administration and adjudication are only possible on the
basis of specific legal authorization, however, and the legality of the execution emerges
more clearly as a conscious principle, the establishment of freedom and fundamental rights
only makes sense on the precondition, that it takes on a specific constitutional form [dass
sie in spezifischer Verfassungs form erfolgt]. No conventional law, but only one produced in
a qualified process can produce the basis for an infringement by the executive power upon
the sphere that freedom and fundamental rights build up around the individual. (Kelsen
2013, 67 [53f.; emphasis in the original])

As a conceptual claim, Kelsens thesis that the concept of majority rule presup-
poses minority rights does not make any sense, unless it is meant to maintain that
nobody can demand respect for her own freedom without recognizing the equal
freedom of everyone elsewhich is a normative requirement, not a conceptual one.
Notwithstanding the mischaracterization as a conceptual truth, Kelsen seems to
argue that constitutional rights do not primarily protect individuals against execu-
tive or administrative overreach, but form a structural aspect of the exercise of leg-
islative powers within the practice of sovereignty of the people and, thus, contribute
to the maintenance of democracy and majority rule. For he explicitly states that
protection of minority rights is not necessary, but merely a practical possibility
primarily supported, as it seems, by experience rather than normative consider-
ations. Whereas Kelsen explicitly defends the requirement of a qualified majority
vote for all attempts to alter constitutional rights and, thus, introduces a special
procedural requirement for minority rights, he implicitly affirms that altering or
even abolishing them is legitimate if authorized by a qualified majority. Minority
rights, thus, are considered to be vital for the maintenance of majority rule, but they
articulate no substantive restrictions upon legislative powers. Constitutional rights,
thus, have no intrinsic substantive value or content, but they are instrumentally rec-
ommended for the practice of democracy, which, as Kelsen argues, is essen-
tially characterized by majority rule as the best approximation for the doctrine of
sovereignty of the people.
If a qualified majority decides to change the constitution, or even to abolish
democracy, it is fully authorized to do so by Kelsens account of the doctrine of
sovereignty of the people. Kelsens republican conception of democracy includes
no provision to rule such a move illegitimate if that move were reached by proce-
dures that qualify as democratic in Kelsens sense.
200 C. Chwaszcza

In terms of substance, therefore, basic and freedom rights in Kelsens under-


standing articulate no serious restriction of the substantive content of legal norms
and no individual rights-based limitation of sovereignty.12 From a republican per-
spective, such a view is indeed sensible, because republicans would maintain that
the idea of individual rights as protection against legislative overreach loses its
normative point once the doctrine of sovereignty of the people is realized. Such a
perspective corresponds to Kelsens well-known claim that the distinction between
private and public law in democratic regimes draws a false contrast, because if the
people is sovereign there is only public law, which the people imposes upon
itself (Kelsen 1967).
It might be worth mentioning that from a historical perspective, Kelsens argu-
ment is partly directed against liberal opponents of socialism who maintain that
there is a pre-political private right to private property, which precedes or lim-
its sovereignty of the people.13 Historically, one of Kelsens main concerns seems
to be the belief that decisions about property rights concern genuinely political
aspects of legislation that cannot be removed from the agenda by invoking natural
or human rights. Systematically, though, Kelsen defends a concept of unlimited
sovereignty of parliament, even though he requires qualified majority vote for con-
stitutional changes.14
In his early writings, Kelsen seems to conceive of minority and freedom rights,
strictly speaking, not so much in terms of individual rights but in terms of institu-
tional arrangements for the constitution of the legislature.15 Also important here are
both his defence of proportional representation, which is supposed to guarantee that
the constitution of the parliament reflects the plurality of groups within the elector-
ate, and his conviction that the core of parliamentary work consists in working out
legislative compromises between those groups (Kelsen 1929). In his later work,
Kelsen (1955) explicitly endorses recognition of political rights as individual rights,
and argues for universal suffrage.
Although it is not entirely clear whether the differences between the two works
manifest a modification of his views or rather a somewhat different focus of his
argument, a stronger emphasis on individual rights is supported by acknowledg-
ment of the fact that majorities and minorities in modern democratic societies are
not stable groups, or blocks, such as antagonistic parties, professional corporations

12
It should be noted that the question whether human rights should be conceived of as either con-
stitutional rights or individual rights is contested among philosophers. For a critical discussion, see
among others, Beitz (2009), Chwaszcza (2011a), Wellmann (2011).
13
Kelsens thesis obviously depends on the implicit assumption that defenders of the distinction are
natural law theorists who think of private law in terms of pre-political natural law or pre-political
natural rights of individuals.
14
Kelsen (1931) defends a concept of not only unlimited but also indivisible sovereignty.
15
Such a rational form of self-restraint can only be constitutionally instituted within the parlia-
mentary process [Nur im Parlamentsverfahren ist solche rationale Selbstbeschrnkung als verfas-
sungsmige Institution mglich]. Here, the purpose of the catalog of fundamental rights and
freedoms changes from the protection of the individual from the state to the protection of a (quali-
fied) minority from a merely absolute majority (Kelsen 2013, 68 [54; emphasis in the original]).
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 201

(berufsstndische Vertretungen), or national minorities, but, rather, shifting groups


of persons with respect to different questions. Protection of minority rights by
means of proportional representation is, therefore, unsatisfactory and more effec-
tively implemented by protection of individual rights.
To take stock, it has to be recognized that Kelsens account of democracy con-
tains neither any normatively substantive qualification nor any procedural restric-
tions able to prevent the conclusion that if a qualified majority of the people were to
vote for either a change of the constitution or even the abolition of democracy, then
a qualified majority would be normatively justified in doing so.16 The qualified
majority would be democratically exercising political freedom.

11.2 Normativity asFormal Legality

Kelsens theory of democracy is closely linked to his analysis of the state as a legal
order.17 Although Kelsen argues that any legal order is irreducibly normative, he
primarily defends a conception of formal legality. It, therefore, seems appropriate to
comment briefly on his thesis that the state is identical with the legal orderthe
identity thesis18 and the claim that there can be no such thing as Staatsunrecht
literally state-injusticei.e., abuse of authorized competences or powers.
The identity thesis seems to claim, first and foremost, that socio-political institu-
tions are nothing but normative conventions.19 As has been observed before, though,
the identity thesis suffers from a curious defect: the rather strange consequence that
there can be no unjust act that can be imputed to the state. Formally, this conclusion
derives from the identity thesis together with Kelsens agency-related thesis that one

16
It has to be conceded that viewed from a pragmatic perspective, even the best constitutional
arrangement might not suffice to deter an illiberal and anti-democratic society from suppressing
individuals or minority-groups and from transforming itself into an authoritarian regime. A con-
ception of sovereignty of the people that theoretically allows for the procedurally legitimate
possibility of the abolition of democracy, however, seems to suffer not from pragmatic weakness,
but from weakness of normative premises, such as substantive normative constraints on the pur-
pose and competence of legislation and state activity.
17
Kelsens identification of state and legal order seems best understood as the claim that political
authorityin contrast to mere powercan scientifically or philosophically be conceived of
(in modernity) only in terms of some normative account of authorization, which he thinks is some
form of (quasi-)legal constitution.
18
Somek (2006) has argued that Kelsens identity thesis aims at deontologizing the concept of
the state, whereas I would call it an attempt to present it as a legally-normative order; for deontol-
ogy is often understood as implying a commitment to intrinsically substantive moral obligations,
whereas Kelsens understanding is primarily procedural. See section III for the distinction between
legal and moral normativity in Kelsen.
19
From a methodological (post-positivistic) point of view, it might be held against Kelsen that not
all conventions are legal conventions, and that conventions are not mere abstract normative
assumptions or presuppositions, but public practices. The identity thesis indeed in no way fol-
lows from acknowledgement of the conventional nature of the state.
202 C. Chwaszcza

can clearly distinguish between descriptive, or factual, aspects of agency and


those aspects which determine the normative meaning of the act, which
roughlyis the totality of the constitutional legal norms that define state authority.
According to Kelsenand this point is crucialthe meaning of institutional acts
is fully determined by those normative aspects; descriptive aspects play no role.
That assumption leads to Kelsens claim that an act by a representative of the state
can be imputed to the state if and only if the act fully conforms to all the relevant
legal norms, be they procedural or material. Any act that does not conform to the
relevant norms cannot be imputed to the state. Accordingly, the state cannot act un
justly for purely analytical reasons.
The message is too good to be true! One cannot eliminate normative concerns
about state-injustice by introducing a separation between meaning-aspects and per-
formative aspects of behavior exhibited by state officials. Agency is not exclusively
about meaning but also about the consequences that follow from the agents behav-
iour. The damage, so to speak, that results from abuse, or misuse, of authorized
competences does not disappear because a particular act is unauthorized. Even more
importantly, the common references to state-injustice only partly concern abuse and
rather often also address substantive limitations that cannot be reduced to formal
legality. The latter, however, is a question that Kelsen refuses to address, appar-
ently because he thinks it cannot be scientifically discussed, because it is based on
moral beliefs.
Whereas Kelsens personal defence of democracy is to be understood as a type of
morally-normative commitment, his analytical account of democracy aspires to be
a more scientifically, morally neutral analysis of democracy as a particular legal,
constitutional order. But even his normative defence of democracy has no place for
a special intrinsic, or substantive, value of constitutional freedom rights.

11.3 K
 elsen ontheTheoretical Foundations ofHis Defense
ofDemocracy

Significant parts of Kelsen (1955) outline a theoretical defence of democracy based


on what he calls relativism. He even claims that the republican account of democ-
racy and relativism entail each other, which is not true. Nevertheless, the claim
underlines the importance that Kelsen gives to relativism.
Unfortunately, what Kelsen calls relativism is not a fully coherent theory, but
rather an amalgamation of certain epistemological and metaethical theses combined
with some analytical assumptions about individual political behaviour, which are
relevant for his assessment of the function and normative foundation of majority
rule.
To start with the epistemological aspects, relativism is supposed to articulate,
first and foremost, a moderately skeptical neo-Kantian epistemological commit-
ment. It is presented as the assumption that human cognition must necessarily fail
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 203

to discover objective truthsbe they scientific or normativebecause cognition


is generally restricted to how things present themselves to the subject of cognition.
This form of unavoidable subject-relatedness appears to represent the specifically
Kelsenian sense of relativism, which he considers must be distinguished from
(moral) pluralism, understood as the claim that all diverging (moral) beliefs are
equally true or valuable. Relativism, however, is not merely a negative claim about
the non-existence ofmoral truths, but also a positive thesis. It maintains that differ-
ent people will unavoidably disagree on any or most normative questions.
Obviously, the positive thesis is not exclusively epistemic, but derives from
Kelsens metaethical account of moral beliefs, which is a version of emotivism.
Whereas legal norms in Kelsens view are normative but objective (i.e., positive),
moral beliefs are purely subjective insofar as they are nothing but psychological
attitudessometimes characterized as wishes and fears (Kelsen 1955, 17) but,
more frequently, as quasi-existentialist commitments to which a person subscribes.
Although the identification of moral beliefs with psychological attitudes per se does
not imply that attitudes of different persons differ,20 Kelsen seems to presuppose this
as a fact. The manifestations of this fact are not entirely clear, because he frequently
emphasizes that, according to relativism, even moral beliefs are subject to
unspecifiedlaws of rational cognition, by which he seems to mean that they
must be open to scientific inquiry and not be held dogmatically. Nevertheless,
Kelsen seems inclined to think that mens egoistic tendencies and personal commit-
ments make interpersonal convergence of moral beliefs impossible, which presup-
poses that moral beliefs either roughly coincide with what a person considers to be
or to contribute to her own personal self-interest, or that moral beliefs reflect purely
subjective personal judgments. Epistemological relativism is, thus, transformed into
a form of moral idiosyncrasy or a strongly subjective account of personal moral
commitment.
What a rational person according to Kelsen nevertheless ought to accept, in light
of epistemic relativism, is that every other person ought to be granted an equal free-
dom to adhere to her own normative beliefswithin the limits of rational cognition.
This skeptical attitude, Kelsen thinks, differs from the common understanding of
pluralism insofar as it is epistemologically motivated and does not accept any
normative view but only rational ones.
From a contemporary philosophical point of view, Kelsens theoretical founda-
tions of democracy appear somewhat antiquated and very much entangled in dis-
putes conducted during the zenith of logical positivism. Neither his neo-Kantian
epistemology21 nor his emotivist account of moral beliefs are convincing from a
more contemporary philosophical perspectivewhich does not mean that nobody
holds such views any longer.

20
Common sense versions of emotivism, such as Humes, assume that moral beliefs of people
largely converge, and that interpersonal disagreement results from dominance of their selfish
inclinations.
21
The question whether Kelsens view actually qualifies as neo-Kantian, and, if so, of what school,
is contested but not relevant in the present context.
204 C. Chwaszcza

Despite Kelsens own claims, however, neither the epistemological nor the meta-
ethical aspects of relativism are crucial for his normative defence of democracy, or
his republican foundation of it. What is crucial, rather, are the analytical aspects of
his description of (individual) political behaviour and the structure, or purpose, of
the function of majority rule. For Kelsen seems convinced that individuals strive not
only to pursue their own interests and moral ideals in politics, but also to impose
those interests and ideals upon everybody else. It is, therefore, not relativism that
lies at Kelsens foundation of democracy, but rather the idea that political behaviour
is primarily inspired by each individuals striving exclusively to follow her own ide-
als, or interestsor as Kelsen frequently says, the striving for natural freedom, the
freedom to follow ones own will by having it accepted as a general norm. Political
behaviour, thus, remains tied to Kelsens understanding of natural, non-political,
freedom:
For freedom and equality are the fundamental ideas of democracy and the two primitive
instincts of man as a social being; the desire for freedom and the feeling of equality are at
its basis. It is, first of all, a reaction against compulsion implied in any kind of social reality,
the reaction against a foreign will to which [his] own will should submit, the resistance
against order, against the uneasiness of heteronomy; it is nature itself which in the quest
[for] freedom rebels against society. (1955, 18; emphasis added)
For the view that the degree of [political] freedom in society is proportionate to the number
of free individuals implies that all individuals are of equal political value and that every-
body has the same claim that the collective will be in accordance with his individual will.
(1955, 25)

Obviously, Kelsens understanding of politics is quite legalistic. It emphasizes


the submission to general (political) laws and the coercive quality of social norms,
i.e., heteronomy. It culminates in the view that politics is essentially the competi-
tion among individuals to impose decisions in favour of ones own opinions or inter-
ests upon the rest of society. Majority rule, by contrast, is conceived as a form of
aggregation of individual votes that is defined primarily by the resulting number of
votes. Since Kelsens analysis differs significantly from a more contemporary view
that the normative value of majority rule derives from its acceptance as a fair proce-
dure, it seems worthwhile to examine in greater detail some of the problematic ele-
ments of Kelsens analysis.

11.4 T
 he Theoretical Limitations ofKelsens Republican
Foundation ofMajority Rule

One theoretical motivation behind Kelsens account of politics is clearly the attempt
to replace the concept of a common will of the people or a common good
which prevails in traditional, communist, and fascist political rhetoricwith a more
realistic approach towards political behaviour, i.e., an account that emphasizes
political competition and disagreement. Since the concept of a common will is
often understood to have substantive content of some form, Kelsens defence of
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 205

majority rule is meant to establish a standard of pure procedural legitimacy. It is the


details of his proposed procedural solution that will be discussed here, because,
from an analytical point of view, neither Kelsens analysis of the challenges of polit-
ical behaviour nor his proposed solution is uncontested.
Commencing from Kelsens account of political behaviour, it has to be conceded
that economists often argue that something akin to Kelsens conception of political
behaviour would be a rational attitude towards politics, if political agents were ide-
ally rational in the economists sense of egoistic instrumental rationality. To the
economists disappointment, however, individuals in real life frequently exhibit
non-ideal patterns of rational and political behaviour. Since behavioral theses are
empirically contingent, there is, of course, no a priori argument for or against
Kelsens view. But it seems sound to claim that the assumed focus on self-interest,
or personal commitment, conflicts with the well-confirmed fact that real-world
indidivudals are able to consider the world from more than one perspective, and to
distinguish between self-interest and personal moral convictions, on the one hand,
and political demands or socially acceptable claims on the other. In societies that
qualify as more or less well-functioning democracies, it can be observed that poli-
tics is widely conceived of as a sphere of public or genuinely social affairs that
are presented as extending beyond ones personal interests and judgments. In prac-
tice, democratic citizens and also politicians are often willing to acceptunder cer-
tain conditions such as reciprocity and fairnessthat political opinions and claims
are subject to requirements of interpersonal justifiability and reciprocal accep-
tance.22 This is not just a matter of the result of proto-legislative negotiations and
pork barreling, but a standard form of political argument and reasoning.
In order to avoid misunderstanding, it should be added that the emphasis on
mutual justifiability is not meant to draw an over-moralized picture of politics or to
imply that politics has nothing to do with interests. The structure of publicly accept-
able argument simply requires that the relevant range of interests is restricted to
those that can be mutually justified or acknowledged. Mutual respectability, of
course, eliminates neither disagreement nor competition. That is the reason why
political fairness requires elements of what Rawls calls pure procedural justice
(Chwaszcza 2011b).23 Majority rule can be seen as a paradigm example of a

22
Obviously, this is neither universally nor necessarily true, but an empirically contingent fact of
public, or political, culture. Insofar as Kelsen is primarily concerned with a normative defence of
democracy, however, it might be taken to articulate an empirical precondition for the well-func-
tioning of democracy or even a genuinely normative requirement of democratic attitudes addressed
to citizens. For a defence of a normative account, see Rawls (1993).
23
Contemporary accounts of constitutional democracy largely assume that those elements are
embedded into a broader constitutional framework that, among other things, also guarantees cer-
tain individual rights and liberties for morally substantive reasons, which are removed from the
agenda of questions that can be decided by mechanisms of pure procedural justice. See Dworkin
(1997)and (1986), for the idea that constitutional rights protect moral values, which function as
normative constraints on democractic decision making; see Rawls (1993), who, by contrast, argues
for the recognition of a free-standing sphere of the political, constrained by a rather restricted list
of such constitutional rights as can be justified within a framework of meta-ethical
constructivism.
206 C. Chwaszcza

echanism of pure procedural justice. Requirements of mutual justifiability, how-


m
ever, indicate that the structure of public argument or reasoning is neither (exclu-
sively) about truth24 nor (exclusively) about domination, but to a large extent about
conditions of fairness and reciprocity. Political argument, in this sense, is not con-
fined to subject-relative quasi-truth claims, unrestricted self-interest, or personal
commitment. Rather, it concerns fair reciprocity, mutual expectations and so-called
public goods. Accordingly, it is, therefore, not primarily restricted by limits of
cognition, as Kelsens relativism thesis holds, but by requirements of mutual justifi-
ability, such as reasonableness and mutual respect for the importance and relevance
of other persons opinions and claims. The cognitive basis of political behaviour
in this sense is constituted by a particularly political class of reasons, which present
political and social claims as pluri- or inter personal from a public point of view. Far
from reinvoking the concept of a common goodor the illusion of unanimous
agreementmutual justifiability requirements replace those ideas with the acknowl-
edgement that political affairs are not about personal commitment, but about social
circumstances of personal life-plans.
In light of the second picture of the cognitive and political framework of political
behaviour, the contrast between an instinct of natural freedom, on the one hand,
and the coercive quality of social life, on the other, seems not so much exaggerated
as rather a false contrast, and an unconvincing starting point for an analysis of the
normative value of majority rule. There is, of course, no unique alternative account
of wherein that value resides. But it is widely held that normative acceptance of
majority rule derives from its acceptance as a fair procedure and, more precisely, as
a mechanism of pure procedural justice.25 Considered as a mechanism of pure pro-
cedural justice, however, majority rule cannot be reduced to the resulting numbers
of votes. Rather, it constitutes a broader practice partly comprising constitutive
rules, most importantly in the present context: equal rights to vote and to seek elec-
tion, freedom of expression, association, etc. If those rights, which roughly coincide
with Kelsens list of freedom rights, are constitutive, then they are indeed necessary
requirements for the legitimacy of majority rule and cannot (in principle) be abol-
ished, not even by a qualified majority.
Kelsens analysis of the normative value of majority rule, thus, remains analyti-
cally unconvincing insofar as it cannot be reduced to a method of aggregating indi-
vidual decisions that is primarily characterized by a numerical relation of votes.
Majority rule, by contrast, is a much more complex practice comprising additional,
and partly constitutive, rules that require and guarantee roughly equal rights of

24
In defence of Kelsen, one has to concede that ideological positions in the 1930s tend to resemble
Kelsens personal commitment picture in several respects. What is special about ideological posi-
tions, though, is that they are usually accompanied with the claim that they are true, and that
exactly seems to be the reason why neither fascist nor communist regimes are strongly committed
to democratic government. Thus, Kelsen is in a sense right that democratic politics requires absten-
tion from a claim to truth. Nevertheless, he is wrong in thinking that such an abstention must take
the form of what he calls relativism.
25
Contemporary constitutionalists and human rights advocates, of course, would insist that there
are specific substantive restrictions for the applicability of that mechanism.
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 207

p articipation, recognition of equal concern, measures to forestall manipulation,


abuse of powers, etc.26 It is, therefore, not the fact that majority rule follows the will
of a majority, but that the procedure in all its aspectsmost notably conditions of
participation and performancecan be accepted as fair. Thus, the practice of major-
ity rule constitutes a procedure that, as procedure, constitutes a sui generis source
of legitimacy. Decision by majority rule, therefore, must be acceptable as fair, or
legitimate, even by those who disagree with the majority in substance. Such a form
of acceptance cannot consist in the fact that the majority aggregates individual wills,
or reflects the wills of the larger part of the electorate.
Considered as a practice of pure procedural justice, it can be argued that the
rights that Kelsens addresses as individual freedom rights articulate constitutive
rules for the principle of majority rule, and therefore are necessary for the legiti-
macy of the practiceand not simply a mere possibility. In such a case, however,
there is at least one minimal substantive constraint imposed upon the functioning of
majority rule: it cannot be used for abolishing, or undermining, its own constitutive
rules.
An acknowledgment of the special status of freedom rights, of course, is not per
se identical with an acknowledgment of human rights. Freedom rights might simply
be conceived as civil or political rights that represent a particular normative com-
mitment to democratic government or to political liberalism. Nonetheless, acknowl-
edgement of the special status of those rights indicates that Kelsens republican
foundation of democracy is not only incompatible with the idea of human rights, but
also remarkably different from liberal accounts of democracy, and the understand-
ing of constitutional rights in contemporary liberal philosophy.
Recently, Lars Vinx has offered an alternative interpretation of Kelsens norma-
tive defence of democracy, which addresses the problem of the acceptability of
majority rule for minorities. Therefore, this alternative interpretation should be
addressed.

11.5 A
 Comment onLars Vinxs Interpretation ofKelsens
Democratic Project

Vinx (2007) pursues an admirably argued larger project and attempts to show that
Kelsens pure theory of law is motivated not primarily by scientific and philo-
sophical considerations, but articulates a normative project closely intertwined with
his political writings in support of democracy. Vinxs reconstruction of Kelsens
foundation of majority rule constitutes only a small part of this larger enterprise. It
differs from the reconstruction presented here, especially with respect to Kelsens
analysis of political behaviour. It maintains that protection of minority rights articu-
lates an integral aspect of Kelsens normative defence of democracy, not an

26
See Chwaszcza (2011b).
208 C. Chwaszcza

instrumentally valuable contribution to its maintenance. For Vinx argues that Kelsen
must give an account of political behaviour that indicates whyfor what reasons or
individual motivesmembers of the minority can be expected to accept majority
rule as legitimate. Vinx concedes that Kelsen does not explicitly elaborate such an
account, but maintains that it can be reconstructed from implicit remarks and
assumptions contained in Kelsens political writings.
According to Vinx, Kelsen indeed holds the view that conditions of acceptability
of majority rule require that members of the minority must be able to endorse
democracy for normative reasons. In Vinxs interpretation, Kelsen argues that
majority rule preserves political freedom for all citizens equally because all major-
ity decisions can be overturned by a new majority. The normative value of freedom,
thus, can be preserved even for members of the minority. It derives from the possi-
bility of overturningi.e., revisingany decision whatsoever in a future vote.
In a well-functioning democracy, any individual who is outvoted can reasonably have the
expectation of being part of the majority at some future point, either because the majority
can be convinced to change its mind or because he changes his mind or due to a combina-
tion of both. A temporary majority, on the other hand, will not think of its own laws as final
determinations of the communitys conception of the common good. The principle of revis-
ability and the notion of community going along with it does make it possible for the out-
voted person to see her own interest in freedom reflected in a social will created according
to the majority rule even if the content of that will does not, for now, match her own will.
Members of a minority will thus be able to identify with the present general will even if they
disagree with its contents on the merits. (Vinx 2007, 122)

Although it must be conceded that revisability of collective decisions is indeed an


important pragmatic precondition for the acceptance of majority rule, the attempt to
situate revisability as a normative foundation of majority rule is self-defeating. For
the consequence would be that majority-based decisions are only provisionally
legitimate. If that is not meant to imply that laws must constantly be altered, it can
only be understood as aiming at stability by approximating unanimous agreement.
This, however, is the abolition of majority rule, not a normative foundation for it.

11.6 K
 elsens Republican Foundation ofDemocracy
andContemporary Philosophy ofHuman Rights

If the republican interpretation of Kelsens understanding of democracy is correct,


where does that leave us with respect to the acknowledgment of human rights in a
philosophically reconstructed Kelsenian framework that replaces emotivism and
some of the less convincing explanatory assumptions in Kelsens account of democ-
racy? I would answer, just where we are: confronted with an incompatibility claim.
But Kelsen would not be alone in this respect.
Philosophers indeed have difficulties of their own with the concept of human
rights mainly for two reasons. The first concerns justification, the second, the sepa-
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 209

ration of human rights and individual rights required by (liberal) political justice in
a broader sense.
In a similar manner to Kelsen, many contemporary philosophers tend to assimi-
late the concept of human rights to natural law theories, which they reject for rea-
sons analogous to those of Kelsen. Rawls is probably the most prominent example,
and anybody who is familiar with his Theory of Justice or Political Liberalism must
have noticed that human rights are anathema to Rawls, despite the fact that his first
principle of justice includes quite a few constitutional rights that have traditionally
been listed in declarations of human rights. For Rawls, however, those individual
rights are elements of a genuinely liberal conception of political justice. Notoriously,
the primary intention of Rawls (1971) consisted in the presentation of a general
method of rational justification for a political conception of justice within the broad
framework of metaethical constructivism, which is as far removed from traditions
of natural law theory as moral theory can be. In Political Liberalism (Rawls 1993),
Rawls explicitly presents his theory of justice as a liberal political theory, and
emphasizes that the rights and liberties demanded in his first principle of justice are
to be understood as civil and political constitutional rights.
Rawlss conception of human rights, by contrast, as rather cursorily developed in
his initial essay The Law of Peoples (Rawls 1994), and subsequently expanded in
a monograph with the same title (Rawls 1999), is very far removed from the tradi-
tional understanding of human rights, and seriously contested among philoso-
phers.27 For Rawls, the idea of human rights is mainly situated in international law,
and human rights are characterized not by their content but by their function. He
maintains that human rights articulate minimal moral standards for the recognition
of peoples, i.e., states, as legitimate subjects in international law. The violation of
those standards, according to Rawls, justifies foreign intervention. It is not immedi-
ately obvious how Kelsen would react to a proposal such as Rawlss. Since Kelsens
work on international law is extensive and substantive, its further discussion is
beyond the scope of the present article.28

27
See Martin and Reidy (2006) for a collection of critical essays on Rawlss Law of Peoples. See,
Besson and Tasioulas (2010) for an example of the range and diversity of accounts of human rights.
28
Whereas Kelsen seems prepared to accept the supremacy of international law, it is not clear
whether he would accept that international law may impose any substantive normative constraints
upon states. If Bernstorffs analysis of Kelsens conception of international law is convincing, then
Kelsen held the view that international law itself is based on a norm that all states ought to be
granted equal status (von Bernstorff 2010). Such a basic norm of international law must not neces-
sarily entail a substantive subordination of domestic legal (and political) systems to international
law. I am grateful to Peter Langford for pointing out that Kelsens views on international law under-
went several shifts, and that Kelsens initial theoretical orientation was a monistic account of the
relation of domestic and international law. This was combined with the emphasis upon the establish-
ment of a system of collective security, but one which indicates a number of differences with that
envisaged in the UN Charter (see Kelsen 1948, 1951, 1957). In the latter respect he seems to have
disagreed with representatives of the so-called realist school of international relations theory, as
represented among others by Hans Morgenthau, with whom Kelsen was acquainted since he was
appointed adviser to Morgenthaus habilitation in Geneva. Although a system of collective security
must reject the principle of non-intervention in the case of external aggression, it is not clear to me
210 C. Chwaszcza

Not all analytic philosophers share Rawlss hesitation about the concept of
human rights, but most of them equally endorse metaethical constructivism. The
main theoretical challenge for them, accordingly, consists in the separation of
requirements of universal human rights from requirements of liberal concep-
tions of social and political justice. Although many philosophers agree that human
rights requirements articulate substantive standards of legitimacy for state institu-
tions and political government, there is hardly any agreement regarding the substan-
tive content of human rights.
Three accounts dominate the debate. The first is an approach to human rights as
individual claim rights that must be acknowledged because they protect universal
features of human existence, or universal interests of human beings. Proponents of
this view are widely divided about what those features or aspects are, but most of
them end up with a list of human rights that explicitly excludes most civil and politi-
cal rights, because they are conventional and social rather than universal. Such a
conclusion, obviously, conflicts with the traditional understanding of human rights
as political and civil rights. But Griffin (2008), for example, following Rawls, argues
that those rights are best understood as civil and political rights, and more particu-
larly as rights which articulate elements of a liberal account of political justice that
is different from the concept of universal human rights.
The second approach is an interventionist approach, which is inspired by the
development of human rights regimes in international law. Thus, Beitz (2009)
argues that human rights are best conceived of as norms that generate inter- or trans-
national obligations for their protection. They articulate substantive standards of
legitimacy for political institutions for the protection of individual persons from
standard threats in modern societies. Whereas states are considered primarily
responsible for the respect of human rights within their jurisdiction, human rights
are specifically characterized as articulating pro tanto reason for inter- or transna-
tional interference in cases of their violation. Thus, the distinctive function of human
rights within the overall system of norms, according to Beitz, is that they generate
secondary responsibility for their protection, the addressee of which is the commu-
nity of states, or rather any foreign state able to interfere. It is interesting to note that
Beitz explicitly excludes a so-called right to democracy from the sphere of human
rights with the argument that acknowledgment of the principle of collective self-
determination demands recognition of non-democratic ideals of social and political
organization.
The final approach is an institutional one, which conceives of human rights as
standards of legitimacy for socio-political and legal institutions on the national as
well as the international level. A prominent proponent is Thomas Pogge, who has
argued at length that human rights include a right of freedom from extreme poverty
(Pogge 2008). His critics are equally divided into those who deny that (transna-

whether its adoption must demand any normative standards of domestic legitimacy for the recogni-
tion of states as subjects in international law that would be close to Rawlss understanding of the
concept of human rights.
11 Kelsen onDemocracy inLight ofContemporary Theories ofHuman Rights 211

tional) human rights include such a requirement, and those who agree that such a
requirement is justified, but are unsatisfied with Pogges account of human rights.29
Kelsen, I assume, would have found his skepticism towards moral argument and
justification confirmed.

References

Beitz, Charles. 2009. The Idea of Human Rights. Oxford: Oxford University Press.
Besson, Samantha, and J. Tasioulas, eds. 2010. The Philosophy of International Law. Oxford:
Oxford University Press.
Chwaszcza, Christine. 2011a. Moral Responsibility and Global Justice. A Human Rights Approach.
2nd ed. Baden-Baden: Nomos Verlag.
. 2011b. Kollektive Autonomie. Volkssouvernitt und individuelle Rechte in der liberalen
Demokratie. Deutsche Zeitschrift fr Philosophie 59: 917935.
. 2012. The Seat of Sovereignty: Hobbes on the Artificial Person of the Commonwealth or
State. Hobbes Studies 25: 123142.
Constant, Benjamin. 1988. The Liberty of the Ancients Compared with that of the Moderns. In
Idem. Political Writings, edited by B. Fontana. Cambridge: Cambridge University Press.
Dreier, Horst. 1997. Kelsens Demokratietheorie: Grundlegung, Strukturelemente, Probleme. In
Kelsens Wege sozialphilosophischer Forschung, edited by R. Walter and C. Jabloner. Vienna:
Manz.
Dworkin, Ronald. 1986. Laws Empire. Cambridge, MA: The Belknap Press of Harvard University
Press.
. 1997. Taking Rights Seriously. Cambridge, MA: Harvard University Press.
Griffin, James. 2008. On Human Rights. Oxford: Oxford University Press.
Kelsen, Hans. 1919. Zur Theorie der Juristischen Fiktionen. Mit besonderer Bercksichtigung von
Vaihingers Philosophie des Als Ob. Annalen der Philosophie 1: 630658.
. 1928. Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus.
Berlin: Pan-Verlag.
. 1929. Wesen und Wert der Demokratie. 2nd ed. Tbingen: J.C.B. Mohr.
. 1931. Wer soll der Hter der Verfassung sein? Berlin: Dr. W. Rothschild.
. 1948. Collective Security and Collective Self-Defense Under the Charter of the United
Nations. American Journal of International Law 42 (4): 783796.
. 1951. The Law of the United Nations: A Critical Analysis of its Fundamental Problems.
New York: Praeger.
. 1955. Foundations of Democracy. Ethics 66: 1101.
. 1957. Collective Security under International Law. Washington: United States Government
Printing Office.
. 1967. Pure Theory of Law, 2nd ed., Trans. M. Knight. Berkeley: University of California
Press.
. 2006. Verteidigung der Demokratie, edited by Matthias Jestaedt and Oliver Lepsius.
Tbingen: Mohr Siebeck.
. 2013. The Essence and Value of Democracy. Trans. Brian Graf and edited by Nadia
Urbinati and Carlo Invernizzi Accetti. Lanham: Rowman and Littlefield.
Martin, Rex, and D. Reidy, eds. 2006. Rawlss Law of Peoples. A Realistic Utopia? Oxford:
Blackwell Publishing.
Pogge, Thomas. 2008. World Poverty and Human Rights. 2nd ed. Cambridge: Polity Press.

See Snderholm (2012) for references and an insightful synopsis of the debates among Pogge
29

and his critics.


212 C. Chwaszcza

Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press.
. 1993. Political Liberalism. New York: Columbia University Press.
. 1994. The Law of Peoples. In The Oxford Amnesty Lectures on Human Rights, edited by
Susan Hurley and Steven Shute, 4182. New York: Basic Books.
. 1999. The Law of Peoples. Cambridge, MA: Harvard University Press.
Somek, Alexander. 2006. Stateless Law: Kelsens Conception and its Limits. Oxford Journal of
Legal Studies 26: 753774.
Snderholm, Jrn. 2012. Thomas Pogge on Global Justice and World Poverty: A Review Essay.
Analytic Philosophy 53: 366391.
Vinx, Lars. 2007. Hans Kelsens Pure Theory of Law. Oxford: Oxford University Press.
von Bernstorff, Jochen. 2010. The Public International Law Theory of Hans Kelsen. Cambridge:
Cambridge University Press.
Wellman, Carl. 2011. The Moral Dimension of Human Rights. Oxford: Oxford University Press.
Chapter 12
Individual Sovereignty: FromKelsen
totheIncrease intheSources oftheLaw

FrancescomariaTedesco

Abstract Kelsenian legal science, centred upon a monist, global legal system fails
to acknowledge the complex character of the process of global law making. The
process results from an elaborate combination of political and legal principles in a
pluralistic legal order composed of three main elements: International law, the State,
and the individuals. Within this process, the conventional position of the individual
as subject to norms in a state of subjection is placed into question, and there
arises the possibility of a subject of international law the participation of subjects
in the formulation of the norms which regulate their conduct at the level of interna-
tional law. In response to this transformation of the position of the individual, the
chapter commences from a Kelsenian understanding of positive law which is then
extended to the contemporary doctrine of Human Rights. This, in turn, leads to the
modification of the modern idea of State sovereignty through the recognition of an
individual sovereignty.

12.1 Introduction

Hans Kelsen argued that, in certain instances, the individual can be considered as a
legal subject in International Law: the
indirect obligation and authorization of individuals by international law, however, is a rule
which has some important exceptions both in general and in particular in international law.
There are cases in which a norm of international law directly obligates an individual cases
in which international law not only determines what ought to be done or omitted, but also
which human being ought to behave in that way. In these cases individuals appear directly
as subjects of international law (Kelsen 1978, 327).

This chapter is one of the outcomes as member of the Research Unit Social Asymmetries and
Political Inclusion: Concepts, methods, and policies, Scuola Superiore SantAnna, Pisa (Prin
20102011: Local Coordinator, Barbara Henry; National Coordinator, Laura Bazzicalupo) and as
researcher at the Universit di Camerino (from 2016 onwards).
F. Tedesco (*)
School of Law, University of Camerino, Camerino, Italy
e-mail: francescomaria.tedesco@gmail.com

Springer International Publishing AG 2017 213


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_12
214 F. Tedesco

It is an obligation of individuals rather than States. This position, which has cer-
tain potential affinities with Kants notion of cosmopolitism (Kant 1917), was then,
subsequently, radicalized by Habermas who relinquished any mediation by the State
(Zolo 1999, 439440).1 Habermas idea has to be considered together with his the-
sis of the co-originality of popular sovereignty and Human Rights. Therefore, in
Habermas perspective, the idea of individual subjectivity becomes that of both a
citizenry of a state and a world citizenry and a world parliament. In contrast to this,
the Kelsenian position is that
[t]he center of a democratic World State must be a world parliament. But a world parliament
in which all the United Nations would be represented according the their aggregate numeri-
cal strength would be a legislative body in which India and China would have approxi-
mately three times as many deputies as the United States of America and Great Britain
together (Kelsen 1944, 10).

It is not necessary to agree with the advocates of the Cosmopolis, to notice the
weakness of this, Kelsens, objection. From the perspective of a democratic World
State, it should be absolutely normal that more demographic weight corresponds to
more representatives. Otherwise, the criterion of the democratic weight of voters
would be based on the classical Westphalian Grotian, instead of Kelsenian, idea
of sovereign equality of the States, in which representation is based upon mere
factual existence.
Beyond this question, there is the specific character of European Union democ-
racy, which, even if it has generated the difficulties of a potential democratic defi-
cit, sought, from its inception, to bypass the problem of the demographic weight of
member States with a system of symbolic compromise: a voting system based upon
the combination of the idea of weighted votes counterbalanced by degressive
proportionality (Schtze 2012, 112). The new Lisbon voting system, has, however,
modified this initial approach (Ibid., 113114), with the creation of parallel institu-
tions and decision-making structures operating under different principles is con-
cerning, especially since they do not give smaller states similar constitutional
guarantees(Dawson and de Witte 2013, 838).
Daniele Archibugi has proposed the creation of an Assembly of the Peoples of
the United Nations as a parallel body inspired by the European Parliament in order
to serve as the expression of individuals and not of their governments (see Archibugi
1993, 317). For Archibugi, based on the INFUSA (International Network of a UN
Second Assembly) proposal, the Second Assembly should be roughly representa-
tive of the demographic weight of the member countries, even if corrected

1
The explicitly cosmopolitan orientation of Kelsens work is particularly evident in the work of the
1920s (for example, (Kelsen, 1920; Kelsen, 1926)). See, also, more generally, for the relationship
between Kant, Kelsen and the Vienna School of Legal Theory (Loidolt, 2015). The predominant
Kelsenian orientation is, however, to the pre-Kantian philosopher, Christian Wolffs notion of civi-
tas maxima. Further, for Kelsen the notion of Imperium romanumanticipated Wolffs civitas max-
ima (see Garcia-Salmones Rovira 2013, 354). For Habermas, Kants cosmopolitan idea, as
cosmopolitan law, is one which bypasses the collective subjects of international law and directly
establishes the legal status of the individual subjects by granting them unmediated membership in
the association of free and equal world citizens (Habermas 1998, 181).
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 215

(Archibugi 1993, 309). Thus, it becomes apparent that the most significant obstacle
to the hypothesis of a World State parliament is not that of the regulation of the
distribution of deputies based directly upon demographic data. This problem could
be regulated, but only technically, because
[a]s the process of European integration shows, the extension of democracy beyond state
borders implies the following unavoidable paradox: it allows for more participation, but can
also give rise to a proliferation of powers that de facto decrease the chance of an effective
control and coordination, and finally participation itself. (Urbinati 2003, 8182)

If this appears to return to the Kelsenian position, the question of the relationship
between numerical majority and representation remains connected to the question
of the effectiveness of state sovereignty (Ibid., 84).
In contrast, for Habermas, the central position accorded to the individual in the
global order has ceased to be primarily Kelsenian:2
The point of cosmopolitan law is, rather, that it bypasses the collective subjects of interna-
tional law and directly establishes the legal status of the individual subjects by granting
them unmediated membership in the association of free and equal world citizens. Carl
Schmitt grasped this point and recognized that this conception implies that each individual
is simultaneously a world citizen (in the full juridical sense of the word) and a citizen of a
state. (Habermas 1998, 181)

The subjectivity of international law for individuals is, thus, not limited to their
liability for international crimes, because
the UN Charter of June 1945 imposes on its member states a general obligation to respect
and promote Human Rights. The General Assembly specified these rights in an exemplary
fashion in December 1948in its General Declaration of Human Rights and has developed
them further in the interim in numerous resolutions. (Ibid.)

Hence, Habermas insists, beyond a states right of appeal, there is an individual,


international right of appeal to UN institutions even against an individuals own
government.
This chapter maintains, in contrast to both the Kelsenian and the Habermasian
positions, that the individual is tied to at least two political and juridical orders: the
nation-State and the contemporary International order based upon a hierarchy of
sources (the Universal Declaration of Human Rights, Treaties, local and regional
declarations, and the jurisprudence of international law and regional and local
courts). The relationship between the individual and the State determines the posi-
tion of the individual, and the obligation to the first level (State) becomes open to
renegotiation when the State violates principles of the second type of order
(International). The position of the individual is affected by the States violation of
the principles of the International order: the foundation for this derives from the
democratic reconstruction of Hegels Ethical Life (Sittlichkeit) (Tedesco 2012). The

2
For Urbinati, Habermas cosmopolitan Kelsenianism is a strategy that aims at preserving the
national articulation of democracy rather than dissolving it and his acknowledgement that
democracy cannot avoid a self-referential concept of collective self-determination situates him
(malgr lui) in a position of mediation between Carl Schmitt and Hans Kelsen (Urbinati 2003,
83).
216 F. Tedesco

individual asserts his sovereignty and becomes as equally sovereign as the State,
thereby affirming his status as a subject of International Law.
The divergence from both Kelsen and Habermas results from the adoption of a
realist perspective against a predominant assumption of the primacy of the
International order and the effective disappearance of the central role of the State
(Tedesco 2003). However, this realist perspective is not the simple return to the
Hobbesian contractualist paradigm. For, this has become a transparent fictio iuris,
and, hence, has been displaced by the legitimation of State power through adher-
ence to the legal framework of the International system of Human Rights. Thus, the
contemporary source of legitimacy rests upon the effective reversal of the Latin
brocard pacta sunt servanda which encapsulates Hobbes third law of nature
(that men performe their covenants made (Hobbes 1929, 110)), to become: pacta
non sunt servanda.
For Hobbes, the laws of nature are logical arguments for the foundation of posi-
tive law. However, the status of these logical arguments, as norms which define the
framework of the social order (Bobbio 1993, 145), is distinct from the Kelsenian
project. Yet, Hobbesian laws of nature are norms which do not prescribe any spe-
cific content. Indeed, the third law of nature is effectively one of the presuppositions
of the social and political order developed by Hobbes in the Leviathan: fundamental
laws which establish a contract in favour of a third person (the king) by establishing
the right to do any thing he liketh (Hobbes 1929, 103), and postulating that these
laws must be preserved and obeyed. From this, there immediately arises the ques-
tion of the contemporary meaning of the existence accorded to ones own right,
which Hobbes describes as the condition for the pursuit of the peace. For Hobbes,
man is to be contented with so much liberty against other men, as he would allow
other men against himselfe (Ibid., 100). The presumption of a position of individ-
ual sovereignty continually confronts the question of the capacity to maintain this
sovereignty: the re-emergence of the second element of Hobbes first law of nature.
What happens when the States threaten to violate the Human Rights of their citi-
zens? Or when they threaten them with death?
In Hobbes reflection upon the fragility and disorder of inter-State relationships,
international relations were conceived as a conflictual relationship among States in
a state of nature analogous to the state of nature prior to the agreement of the origi-
nal State covenant/contract: the bellum omnium contra omnes. In that anarchical,
international society, the only defence of an individuals rights is the creation of a
sovereign State, by the internal covenant among citizens, to which they both belong
and obediently respect.
The contemporary international order is marked by the effective decline of a
framework dominated by a dozen States, but is this decline the emergence of an era
of post-sovereignty? If we have, indeed, entered an era of post-sovereignty, is this
one in which Kelsens theory of legal monism, based upon the primacy of interna-
tional law, is still plausible? For, the theory of legal monism confronts the phenom-
ena of fragmentation and pluralization of legal systems from which legal and
political realism arises. The significant transformation of the International order,
during the past century, is an equal challenge to a realist position which retains a
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 217

Hobbesian foundation. For, while the State remains an integral part of the interna-
tional order, can the notion of sovereignty still be attributed to the State, in the form
of a Leviathan? This, in turn, raises the question of the individuals relation to the
State as both the potential protector and violator of the individuals rights.
The Universal Declaration of Human Rights and other Charters constitute the
original foundation for the notion of individual rights that transcend the internal
dimension of the State and which can be asserted against the legal framework and
actions of the State to which individuals belong. From this origin, the International
order indicates the tendency towards their further development and, in the view of
some cosmopolitical theorists, towards the achievement of a controversial global
citizenship.3 Beyond the question of the evaluation of this further tendency, the
international system of Human Rights has become embedded as the mechanism for
individuals and groups to protect themselves from the State.
The system of international Human Rights, arising from the Universal Declaration
of Human Rights cannot be considered to have the status of a global constitution.
The absence of this status derives from its lack of democratic legitimacy. Indeed,
while the representatives of the governments vote, the Universal Declaration has not
been approved by those States which, in 1948, were under colonial rule (Tedesco
2009, 19); and the Declaration does not settle the democratic issue of the co-
originality between the rights and the will of the subjects who are bound to respect
them. Further, it has no effective institutions or mechanisms of enforcement.4 In the
absence of a global constitution, the Universal Declaration, through its political and
legal concepts, continues to shape the International order through its normative
existence.
For Kelsen, the central focus is upon the necessity for an International court with
compulsory jurisdiction (Kelsen 1941). This is based on an analogy with the national
level, and supports the establishment of an International court even in the absence
of a global parliament responsible for the creation of law. This is combined, again
analogously to the domestic level, with the acknowledgement that courts participate
in law-making activity, because there is no absolute separation between the legisla-
tion and the law-making activity of the courts (Kelsen refers to the history of Roman
and Anglo-American law (Kelsen 1941, 574575)). This demonstrates the central-
ity of courts within a monistic system of international law, and does not place into
question the wider juridical perspective of the evolution of a civitas maxima. It is
from these initial considerations, that the chapter will discuss the relationship
among politics and law in connection with Kelsen, legal positivism, and the Natural
Law Tradition.

For a critical discussion, see Urbinati 2003.


3

The question of the consensus omnium gentium is considered below.


4
218 F. Tedesco

12.2 The International Legal Subjectivity ofIndividuals

In the political and legal history of the West and in other parts of the world, the
development of modern sovereignty cannot be considered a closed, unitary process.
It arose carrying a remnant of the pre-modern, a remnant that has coexisted with the
modern project throughout the course of modernity. It is a threatening and violent
remnant; the State was created to protect the subject from the bellum omnium contra
omnes, but can only do so if it continues to have the capacity to threaten the lives of
the subjects themselves. The modern history of the State is the history of an endless
series of wars interspersed with truces originating in the States claim to be superi-
orem non recognoscens.5 The past century, the so-called Short Century, punctuated
by the two World Wars, and the conflicts in Asia, Africa, and Latin America, repre-
sents the continuance of conflicts involving the State, not because they are inter-
state conflicts (most conflicts, excluding the World Wars, are intra-state (Glennon
1999, 3), but because the State has asserted with violence a monopoly on the legiti-
mate use of force within its territory.
However, this State-centred framework of the Westphalian model underwent
substantial change in the twentieth century, commencing from the recognition of
passive legal subjectivity (the attribution of potential liability to individual heads of
State for the crimes committed by the States that they governed) and ending, in the
approval of the Universal Declaration of Human Rights (1948), with the emergence
of the idea of active international legal subjectivity: the entitlement of individuals to
assert their specific legal rights and duties in the international context. The question
of the assertion of this international legal subjectivity will be the central focus of
this chapter in relation to the legal philosophy of Hans Kelsen.
These alterations of the modern form of sovereignty have not, however, led to its
complete transformation. It coexists with archaic forms: for example, it becomes
porous and penetrable to capital, and it becomes closed, like a fortress, to humans,
who from the outside, seek to enter its territory. Hence, the classical idea of the State
coexists with a new geography of power which entails a far more differentiated
process than notions of an overall decline in the significance of the state suggest
(Sassen 2007, 34). This new geography not only implies a diminution of the author-
ity of the State (for example, the processes of deregulation or privatization which
diminish the institutional role of governments), but also the production of a series
of new legalities (Ibid., 35). This is accompanied by the emergence of a series of
new legal and political subjectivities. The raison dtat thereby coexists with a new
normativity. The legal order can no longer be represented in the form of a normative
order which is pyramid-shaped. Rather, it has become a legal pluralism, analogous
to the figure of a constellation, and the question of its legitimacy arises from the
dialectical tension with the system of international Human Rights.

5
Rex superiorem non recognoscens in regno suo est imperator: that is the brocard attributed to
the glossators (perhaps Marino of Caramanico) in the thirteenth century.
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 219

In addition, the Universal Declaration, while focusing on the individual, has pro-
duced a number of problems, in particular, that of its own democratic nature or
legitimacy. This has led some theorists (Ferrajoli 2007) to assert the requirement for
a democratization of the Human Rights system and, in particular, the Security
Council of the UN, open to revision by the citizens of the world, and not confined
to States as their representatives. This would be a second Universal Declaration with
popular legitimacy.6
The State and the individual are, thus, placed in a dialectical tension which could
be misrecognized as the sign of the potential return to the tradition of Natural Law.
The potential re-emergence of Natural Law arises from the question which this ten-
sion produces: does the human being/humanity transcend the national citizen/citi-
zenship? The misrecognition, as Natural Law, would be the simple replacement of
nationhood by universal personhood and of national rights by universal Human
Rights. The notion of legal personhood is more complex than this potential assimi-
lation of rights and humanity (Kesby 2012, 101). For the notion of legal personhood
encompasses a universal dimension, a transnational dimension, and a national
dimension. The element of personhood which is relevant depends on which rights
we, as observers, seek to further determine or delineate. This, in turn, rests upon
who, as a citizen, is to be the object of consideration.7
If one considers merely two dimensions of the multi-level belonging of the indi-
vidual to the political and legal context, it can be argued that the human transcends
the citizen only to the extent that the human is, in turn, grounded in the political and
legal order, which is the order of the international system of Human Rights law. The
degree of transcendence is limited by the lack of democratic character of the inter-
national system of Human Rights: the non-participation of individuals even if they
are to be considered as subjects of international law in law-making, except in an
indirect way, for example, through the jurisprudence of international courts. It is
this limitation which is reflected in the Kelsenian position in relation to individual
legal subjectivity. For, whilst Kelsen diverges from contemporaneous German legal
literature in the recognition of the importance of individual legal subjectivity within
the international legal order (von Bernstorff 2010, 146147), the divergence cen-
tres, in the main, on the passive subject of international law, for example, the
attempt, after World War I, to instigate criminal proceedings against the German
Kaiser Wilhelm II, or, after World War II, with the Nuremberg Trials. The explicit

6
Alessandro Ferrara (2003) has sought to situate the moral and legal foundation for Human Rights
in an agreement, not between peoples, but between the representatives of all the States in the
world. Ferrara proposes a clause through which a States reciprocal recognition of new States is
conditional upon the new States acceptance of this Second Universal Declaration of Human
Rights (Ibid., 399). For Ferrara, the admission of new States would, however, remain dependent
upon their recognition by existing States whose formal statehood, rather than their degree of
respect for the standards both of the first and of the second declarations, would render them com-
petent to decide.
7
For example, within the system of international Human Rights law, the emergence of the refugee:
Refugees are in essence stateless (some carry a United Nations passport) but are nonetheless still
protected and granted rights as individuals (Soysal 1994, 142). For a compartive analysis of refu-
gee laws in Europe see (Tedesco 2016).
220 F. Tedesco

Kelsenian acknowledgement of the possibility of an active subject of international


law8 is circumscribed by Kelsens monistic understanding of the legal system. The
necessary interconnection, for Kelsen, between legal monism and individual legal
personhood, is exemplified in his critique of Georges Scelles institutionalist per-
spective (Kelsen 2005, 64161). The critique centres upon Scelles underlying legal
pluralism (legal institutionalism, in its several versions, assumes that the State is not
the only source of law), but does not extend to a rejection of Scelles entire approach
to the international legal subjectivity of the individual. Kelsen criticizes Scelles
theory of the individual, as the sole subject of the Law of the People, because
[b]y excluding the State in its mediatizing function from his reflections, Scelles
theory could define only in an imprecise manner the role of the individual in the
international legal order (von Bernstorff 2010, 147).9
The question of the transcendence of the citizen by the human is, therefore, one
which resists a resolution through a single, absolute form of transcendence. Rather,
it only arises in instances in which citizenship is unable to continue to assure the
respect of Human Rights. In this manner, transcendence assumes the form of a func-
tional role-splitting (ddoublement fonctionnel): when the international enforce-
ment systems of Human Rights fail, then the task should be undertaken by national
officials as enforcement agents of international law (Cassese 1990, 212213). When
the State is unable to defend individuals Human Rights, the individuals are able to
act in place of the State. In instances in which both international and national sys-
tems of enforcement fail, the possibility of enforcement is confined to single, iso-
lated individuals or individuals as members of socio-political movements.
However, this notion of transcendence is detached from the Natural Law tradi-
tion, as it has a purely juridico-political dimension. The State and the individual are
both subjects of international law, but their relationship is not governed by a vertical
hierarchy. This position raises the immediate objection that the invocation of a pos-
itive link, through positive law, between individuals and the international order of
Human Rights is problematic if the latter derives from political power, or, at least,
one that is more political than legal. For, it would appear to be in contradiction with
the assertion that reference to Human Rights can only be a matter of positive law.
However, this contradiction or incoherence is only present if law is already consid-
ered from an exclusively normative perspective (and, in fact, for Kelsen, the
Universal Declaration was not to be attributed with this sense of law (Kelsen 1951,
3941)).
In contrast, it is an affirmation that Human Rights are derived from the field of
political power, but one which is without connection to a revival of Natural Law: the
political element from which the Human Rights system originates is what Bobbio
called consensus omnium gentium or consensus humani generi (Bobbio 1996, 13).
The foundation of Human Rights, for Bobbio, in divergence from the Natural Law

8
[T]he international legal community with its specific organs is directly available to the individual
person, even against his state (Kelsen 1934b, 253).
9
See (Verdross 1949, 435), regarding the similarities between Scelle and Kelsen concerning the
definition of International law.
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 221

tradition, cannot be based upon elements of the Natural Law tradition of an invariant
self-evident truth or human nature, but solely upon the historical notion of con-
sensus. Consent, as the basis for consensus, is empirical and political, and, there-
fore, distinct from the Natural Law tradition. The distinct foundation for Human
Rights, of consensus, is accompanied by specific difficulties in relation to the para-
digmatic foundation of the international system of Human Rights. The Universal
Declaration lacks, from a historical perspective the consent or consensus of those
who, at that time, were under colonial domination. Beyond this difficulty of histori-
cal determination, there remains the question of the verification or veracity of the
notion of consensus itself.
The introduction of this essentially empirical and historical origin or founda-
tion for Human Rights requires a double distinction. In its explicit incorporation of
politics and morality, this foundation entails that law cannot be conceived through
the methodology of purification or purity. The constitutive impurity of law
the connection with politics and morality is one which is distinct from a return
to Natural Law. Hence, the double distinction enables the retention of a modified
notion of positive law. The pertinence of this position becomes evident for
International Law, because of the overt connection with the political and the
moral.
For Kelsen, the pure theory (which nevertheless does not mean the purity of
law: there is an ambiguous relation between the purity of the theory and the purity
of its object in Kelsen, see below) belongs solely to the field of legal science and
it thereby excludes the determination of whether a rule of law is just or unjust,
appropriate or inappropriate: the task of determining the justice of a rule is that of
morality, whilst the determination of its degree of appropriateness is for politics.
The pure theory rests upon the maintenance of this methodological distinction
(Gumplova 2014, 7). In Kelsens theory, positive refers to a kind of logical doc-
trine of Natural Law, in which first logic and science, and, later, even the deci-
sion, supplanted the first principles of Natural Law (i.e., Reason, human nature,
God). This is combined with an exclusive concentration upon State law-making or
processes of international law-making.
The designation, positive, refers, here, to its sociological-practical, rather than
to its logical-formal meaning: positive from the Latin positum, past participle of the
verb ponere (to create, to make). Hence, positive, as a non-Kelsenian, socio-
political idea, refers to what is created by someone (men, institutions) and empiri-
cally ascertainable, not what is logically deduced. The law, including positive law,
is a negotiation process in action and cannot be simply reduced either to State
law-making or to processes of international law-making.
International legal subjectivity appears flawed and incomplete because, in the
international context, there is an absence of the exercise of political rights. In con-
trast to the presumption that resolution of these flaws rests upon the cosmopolitan
redefinition of the State, the position adopted here is that of the State in dialectical
tension with the international system of Human Rights. Hence, it has relinquished
the reintroduction of the idea of a civitas maxima or world-republic which, as Kant
acknowledged, has the inherent tendency towards despotism.
222 F. Tedesco

The idea of international law presupposes the separate existence of a number of neighbour-
ing and independent states; and, although such a condition of things is in itself already a
state of war, [] yet, according to the Idea of reason, this is better than that all the states
should be merged into one under a power which has gained the ascendency over its neigh-
bours and gradually become a universal monarchy (Kant 1917, 155).

The underlying orientation proceeds beyond Kant to a non-Kantian realism


which combines conflict and the mediation of the State. The orientation is analo-
gous to that of Hedley Bull in its recognition of a polycentric structure of interna-
tional relations, but this analogy is qualified by the centrality attributed to Human
Rights when the State violates the relationship between itself and its citizens: the
violation of their Human Rights. The anarchical society (Bull 1986, 323) is, thus,
limited by the possibility that citizens can invoke Human Rights as a type of trump
card against their States. The international system of Human Rights exists to pre-
vent State violations of internal, domestic rights (Francioni 2007, xvi). The ques-
tions which remain centre upon the access of individuals to international justice as
enforceable Human Rights and the recognition of the participation of individuals in
the process of formation of international rules and legal instruments. Thus, the
approach, while predominantly orientated by political realism, is distinguished by
its acknowledgement that the State exists within an international system which has
ceased to be determined by the problematic framework of the Westphalian political
order.
The problem is the prominence of the interpretation of international law through
a domestic analogy which projects the notion of a State onto the international order,
as if to be law, it has to have the characteristics of the imagined State of legal
positivism (and, therefore, a notion of the State containing a government, rules of
recognition, secondary rules etc.). The reductive character of this approach becomes
evident with the acknowledgement that the relationship between rights and State
has, as its necessary corollary power, strength,10 politics and politics entails the
presence of morality and ethics.
This acknowledgement, or recognition, remains separate from the reorientation
towards, or revival of, Natural Law. The existence of an international legal order
based on Human Rights is not dependent on the existence of a coercive structure
that ensures its enforcement, but upon the existence of a political source, and poli-
tics is not separated from the law at either domestic or international level. Hence, it
also remains distinct from the Kelsenian position in which international law is no
less a coercive order than is domestic law (Bull 1986, 324). Although Kelsen
affirms that this process of centralization is not yet accomplished, arguing that the
international legal order is still engaged in a process of progressive centralization of
coercion.
For Kelsen, domestic and international law are both characterized by the subor-
dination of man to the law. The position is one which rejects the Hobbesian or

Not necessarily in the sense of legitimate force exerted by a sovereign power, in which case, the
10

Kelsenian would be satisfied, since the law would express its structural link with legitimate
coercion.
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 223

Austinian tradition in which domestic law is coercive and International Law is not,
and, hence, that the latter is not true law. International law is law despite, or apart
from, the absence of a world government or of a world court of justice which would
implement and enforce the use of coercion and sanctions. The attribution of the
status of law to international law, for Kelsen, results from the specific character of
international law [which] is a coercive order which rests on decentralised sanctions
rather centralised ones (Bull 2002, 125). Hence, Kelsen distinguishes international
law from any necessary origin in violence, politics, and conflict.
In relation to the Kelsenian position of the centralization of international law to
administer the use of force, this realist perspective has relinquished the notion of an
inherent potential or tendency towards centralization. Law does not reside in the
concentration of the use of force but, rather, in relocating the question of centraliza-
tion on the basis of rights as the expression of political, legal, and moral struggles.
The relocation renders law a dialectical process derived from the process of struggle
and the particular participants within it. Law is not pure, but constitutively
impure contaminated by power relations. It is the recognition of this impurity
which enables the question of the legitimacy of the monopoly of force, assigned by
the UN Charter to the UN Security Council, to be distinguished from the mere defi-
nition and enactment of this monopoly by an international legal instrument
(Landauer 2003).
The realist position recognizes that Kelsenian positivism has itself begun, during
the initial period of Kelsens presence in the USA, in the mid-1940s, to blur the
boundaries between law and politics (Kelsen 1944; Bull 1986, 332). This blurring
of the previously strict, or hard positivism of the earlier Kelsenian project (Kelsen
1911, 1920, 1926, 1934a), is an acknowledgement of the difficulties of this initial
position, and, by the 1950s, Kelsen indicates that a change of a rule in international
law can result both from a regulatory process and from the violation of a previous
standard (Kelsen 1951, 912; Bull 1986, 334). Rather than the development of a neo-
Kelsenian position, the realism developed here encompasses other elements in its
consideration of international law which are external to a Kelsenian conception of
the law. These elements extend, for example, to courts, the legal jurisprudence of
international law and international Human Rights and, perhaps, even the academic
discourse on international law and the international order itself.
Positive law (rather than philosophical, moral, religious beliefs) remains the fun-
damental point of commencement. However, the interconnection between positive
law and the notion of auctoritas, non veritas facit legem, leads a non-legalistic, non-
formalistic and historicist theory of positive law to extend the origin and character
of authority beyond the exclusive purview of States, to encompass jurisprudence,
NGOs, the courts, and even unauthorized acts. Once a plurality of potential sources
of authority is acknowledged, the idea of positive law changes from Kelsens order
of constraint or coercion to one in which positive law has ceased to be co-terminus
with the State and is not necessarily assured by coercion. This suggests, through the
reversal of the Kelsenian approach to liberties, the possibility of a non-formalistic
theory of positive law. In this reversal, which is itself imbued with the spirit of con-
stitutionalism, liberties are not derived solely from the authority of the State. Rights
224 F. Tedesco

and liberties are considered to be restrictions on the power of the State they are not
solely the product of State power.
While Kelsen explicitly recognized the individual legal right to initiate legal pro-
ceedings, within Kelsens theoretical framework, this legal right (or legal power) is
always the result of a norm of the State, which empowers the individual to initiate
legal proceedings. Hence, there is no possibility or potential for legal decision-
making which is not the result of a preceding norm of the State.11 The central differ-
ence of the realist position affirmed in the present chapter concerns exactly these
acts which have no previous authorization by the legal system. A realist, non-
formalist theory of positive law considers that rights can exist prior to the existence
of the corresponding duties of the legal system; duties do not always precede rights.
This is true even in the context of International Law (see the Universal Declaration
of Human Rights), where there are rights without corresponding duties, rights with
a powerful political strength.
The denial or interruption of the necessary precedence of duties over rights also
prevents the potential for a regressus in infinitum in Kelsenian identification of the
original source of rights. This potential difficulty arises when it becomes evident
that this origin would require a series of ceteris paribus clauses to reach a conclu-
sion. In this argumentative schema, liberties must always be provided by that
dynamic, internal differentiation of the levels of the legal system, termed Stufenbau.
In contrast, from the realist position, liberties can be considered as being in a dialec-
tical relationship with power and the State. While a significant set of liberties are
authorized by the State, a certain number of liberties find their legitimation beyond
the State.
The history of the Rule of Law then becomes the history of that dialectical ten-
sion enriched, in the twentieth century, by the dimension of International Law, and
its attribution of international legal subjectivity to individuals. In place of a return or
reanimation of the ethical legitimation of law by moral, religious or philosophical
principles, the central focus is upon the form of a covenant or an agreement (a series
of previous covenants) and the process of progressive improvement or replacement
with a new and more democratic covenant. The covenant, as a legal form, becomes
an origin which is open to transformation: the capacity to break with a particular
formulation of a covenant and consider this covenant as no longer binding. Thus,
the origin of the legal system is not to be sought in a supreme, invariant norm the
Kelsenian Grundnorm nor in the effectiveness of power itself as continued
obedience to norms which renders the distinction between a State and a band of
robbers unclear (Bobbio 1992, 121).12

11
This orientation remains effectively unchanged in Kelsens final, posthumous work, the
Allgemeine Theorie, of 1979, in which law regulates its own production and enforcement. In
Kelsens view, an unauthorized act does not produce law, it is legally invalid. In addition, legal
right is merely permission, authorization (Berechtigung) from the State.
12
St. Augustines City of God, IV, 4: The same as you do when you infest the whole world; but
because I do it with a little ship I am called a robber, and because you do it with a great fleet, you
are an emperor. (Augustine 1998, 148)
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 225

This is a non-formalistic and non-rigid positivism: a realist theory of positive law


which, following Bobbio, holds that positive law is a purely human creation. It dis-
tinguishes itself from the Kelsenian form of positivism in its consideration of the
question of the identity of the law-makers, and the rules which control such law-
making. The emphasis on consensus or consent, as the underlying origin of the
international Human Rights system, however, requires further reflection. For it
necessitates that one have the capacity to identify and verify a consensus or consent.
This, in turn, opens onto the question of the methodological solution to this notion
of consensus or consent.
The Kelsenian perspective, of a pure theory of law, rests upon the rejection of the
social contract as the origin of positive law. For Kelsen, the social contract is an
integral element of the Natural Law tradition: a theory of subjective right based on
the acknowledgement of the authority of the State (Kelsen 1920, 463). Kelsens
theory of positive law affirms that law is what is effective, so ex facto oritur ius: law
derives its essence from its own effectiveness, and this circularity justifies what
already exists.13 This is methodologically deficient because of the inherent ambigu-
ity of its object, being caught between Sein (is) and Sollen (ought), validity and
being.

12.3 G
 rounding Disobedience onPolitical andLegal
Assumptions

The pre-modern origin and characteristics of the covenant, therefore, require sys-
tematic, critical reflection and reinterpretation orientated by the notion of democ-
racy. The reinterpretation would have to consider, for example, the right of rebellion,
which was recognized, by medieval covenants, for lords, lieges, and feudatories.
Medieval covenants were based on mutual obligations between the feudatories and
their lords, and the non-fulfillment by the lords accorded the feudatories the right to
break the covenant. The right of rebellion is a right of self-defence, a natural right
which does not undermine the sovereigns authority. The right disappeared progres-
sively from the framework of the social contract theory, as is exemplified in the
Natural Law theory of Samuel Pufendorf (Pufendorf 1672; Seidler 1996; Baumgold
1993; Laurent 1982). The right to rebellion, founded on the medieval idea of the
reciprocal relationships established by a covenant, is effectively replaced by the
right to expatriate (Oestreich 2004, 5354). For the people, as a corporate body,
have neither a claim to limit the sovereign nor a claim that the reciprocal agreement
between king and citizen confers the people with political authority.

On the idea of circularity, see MacCormicks description, in the review of Essays on Kelsen: the
13

occasion when he [Kelsen] interrupted some musings of H.L. A.Harts on the concepts of rule
and norm with the exasperated cry Norm is norm is norm. (MacCormick 1987, 183).
226 F. Tedesco

In contrast, in the social contract theory of the pre-revolutionary French


Enlightenment14, the collective right to break the contract is explicitly acknowl-
edged, as exemplified in Rousseaus Social Contract (Rousseau 1923), but it is situ-
ated within a wider consideration of representation, natural liberty and the history
of the decline and fall of cities and civilizations. For Rousseau, however,
there is in the State no fundamental law which cannot be revoked, not excluding the social
compact itself; for if all citizens assembled [are] of one accord to break the compact, it is
impossible to doubt that it would be very legitimately broken (Ibid., 89)15

It is this recognition which is to be preserved, whilst displacing the conception of


natural, collective liberty with a juridical notion of individual empowerment from
the legal norms of a system of Human Rights as basis for the breaking of the cove-
nant with the State. On this reinterpretation of the notion of a covenant, it becomes
a pact which establishes an explicit right of disobedience for each of the parties
when one of the contracting parties fails to honour its commitments. From this posi-
tion, Human Rights are subsidiary norms which become active when States vio-
late constitutional rights. Human Rights are, therefore, positive rights explicitly
occurring in given constitutions, and are also to be understood in the sense of their
having a special sort of cogency on the local constitutional lawmaker (Ferrara
2003, 396).
This position has an obvious affinity with the Habermasian double character
the suprapositive validity (berpositive Geltung) of Human Rights which as con-
stitutional norms they enjoy positive validity, but as rights possessed by each person
qua human being they are also accorded a suprapositive validity (Habermas 1998,
189). It is this suprapositive validity which enables the essentially juridical charac-
ter of Human Rights to point beyond the legal orders of nation-states (Ibid., 190),
and to attribute Human Rights to every human being as a citizen of a shared cos-
mopolis. However, the essential difference emerges in relation to the Habermasian
insistence that [b]asic rights are equipped with a universal validity claim because
they can be justified exclusively from the moral point of view (Habermas 1998,
191). In contrast, the insistence is upon the separation of the legal nature of Human
Rights from an inner moral content. Human Rights should be grounded in a politi-
cal covenant, or, rather, in political struggles. If a type of suprapositive validity
exists, it concerns its political rather than moral content.
Human Rights empower and protect individual citizens against States violations
of their rights by conferring both a right of resistance against their own State and a
right of access to international courts. The normative status of Human Rights, as
law, is separable from their enforcement, because of both their political existence
and their suprapositive validity. The enforceability of these rights is itself the cor-
ollary of their political existence as a constituent power in the constitutional pro-

14
My analysis leaves unexamined the distinct position of the right to rebellion in relation to the
American Constitution.
15
However, for Rousseau, there is no pactum subjectionis, but only the pactum societatis: There
is only one contract in the State, and that is the act of association, which in itself excludes the
existence of a second (Rousseau 1923, 86).
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 227

cess.16 The enforcement of rights, by courts, is not confined to their formal definition
or specification in a bill of rights or analogous legal instrument. Human Rights are
not protected merely through express entitlement as domestic and international
courts have the capacity to recognize Human Rights as a form of law-making activ-
ity. Hence, if a right lacks expression as norm of positive law, rather than indicating
its lack of existence (non-law), it generates a political and juridical struggle for
recognition.
From the political dimension of Human Rights arises the question of their co-
originality and a further potential affinity with the Habermasian position which dis-
tinguishes between the structure and content of legal norms of modern positive law
(Habermas 1998, 191). However, in contrast, the necessity to establish an original
political consensus in relation to Human Rights is maintained against the
Habermasian detachment of co-originality from the actual consent of individuals
subject to the law. For Habermas, the universalizability of law follows a form of
Kantian categorical imperative, which entails the possibility for the norms to be
accepted by all the persons affected. The initial stage of universalization the prin-
ciple of universalization (U) is For a norm to be valid, the consequences and side
effects that its general observance can be expected to have for the satisfaction of the
particular interests of each person affected must be such that all affected can accept
them freely (Habermas 1995, 120). This is then, in a second stage, further specified
by the principle of discourse ethics (D): Every valid norm would meet with the
approval of all concerned if they could take part in a practical discourse (Ibid.,
121).17 The Habermasian notion of co-originality requires an explicit presumption
of circularity:
[it] has to start with three categories of rights that circumscribe the private autonomy of citi-
zens, albeit in an unconfirmed status. These rights, Habermas holds, are the ones that only
regulate the relationships among freely associated citizens prior to any legally organized
state authority, and thereby establish the status of legal subjects as addressees of laws.
Only by virtue of the fourth category of rights basic rights to equal opportunities to par-
ticipate in processes of opinion- and will-formation in which citizens exercise their political
autonomy and through which they generate legitimate law do the legal subjects also
become authors of their legal order (Nickel 2008, 156).

The circularity, however, is the reflection of the absence of a necessary connec-


tion between the legal status of Human Rights and their textual expression in legal

16
Here, following Mllers (2008) in the comparison of Kelsen and Bckenfrde, Kelsen shifts the
question of the constituent power into an extra-legal area, while Bckenfrde renounces the
crypto-Kelsenian assumption of the extra-legality of the constituent power and defines the pouvoir
constituantas a borderline concept (Grenzbegriff), a category that bridges the boundary between
the normativity and the facticity of the constitution. The constituent power is the common element
of constitutional form and political reality (Mllers 2008, 99). The position adopted here pro-
ceeds beyond Bckenfrdes rather fictitious (Ibid., emphasis added) notion of the people by
conceiving of co-originality as the only manner to ground the legitimacy of the constituent
process.
17
See, also part V, in Habermas (1998).
228 F. Tedesco

instruments approved by a process of democratic deliberation requiring a real


consensus.
The potential for individual disobedience to initiate a process of rights enforce-
ment appears immediately to reopen or revive the traditional critique of Natural
Law: the question of the origin and character of the rights which empower individu-
als to disobey. However, this critique is avoided once disobedience is transposed
from the basis of moral or religious principles to in fieri legal rights which rest on
the consensus omnium gentium. States remain, against the Habermasian end of the
State, the most important actors in the international arena, but their legitimacy is
conditional on the recognition and protection of Human Rights.18 This recognition
and protection is, in turn, dependent upon the continued existence of democratic
consensus. Kelsenian positivism, in contrast, responds to the connection between
law and politics through the methodological exclusion of the question of power
(Musio 2011, 16). For Kelsen, the suspension or deferral of the question of power is
the corollary of a value-free (wertfreiheitlich) jurisprudence. In this methodological
approach to the question of power,
Kelsens fundamental mistake is to attempt to establish a science without a pre-existing
orientation when its subject is a stance; a non-evaluative [value-free] theory of something
which is in its nature praxis, ideology, and stance. But the subject of this theory is ungrasp-
able because theory can recognize it only if the theory itself becomes stance, ideology,
praxis, action, project (Carrino 1987, 52).

The Kelsenian theory of law, as a science which establishes what law is, repre-
sents the transformation of legal theory into a scientific logic: a formalized reason
based on an epistemologically nave legal positivism. The transformation is ani-
mated by the scientific requirements of purity, rationality, and completeness which
govern the methodological parameters of a pure theory of law. In this purification,
contradiction and conflict are held to be resolved through the methodological frame-
work of the pure theory in the basic relationships between norms of co-ordination
and subordination. The inevitability of contradiction returns, however, within the
theoretical language of the pure theory itself. For, as a distinct theoretical language,
it is susceptible to the general contradiction of all philosophical language which
assumes the natural blend of the performative and enunciative level and that is what
Gadamer calls the natural speculativity of language: the fact that language (natural or
artificial, current or philosophical or scientific) naturally leans towards blending to say
and to do, discourse and meta-discourse, and only a decisionistic effort (a break with the
recurrences and circularities) can avoid these phenomena (DAgostini 1999, 289).

The Kelsenian methodological transformation of jurisprudence, as a pure theory,


inevitably becomes a value, or a set of values.

18
However, for a critique of the Western imperialism of Human Rights, see Tedesco (2009).
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 229

12.4 Why Consensus?

The centrality of the question of consensus in relation to Kelsenian legal theory is


revealed once legal positivism is considered as a genealogical development from the
death of God. This development, traced by Gnther Anders in a different context
(his interpretation of Kafka), reaches its final stage in the superimposition of Being
and Validity: what exists is valid (Anders 2006, 120). In this superimposition,
however, the necessity to answer the question of validity remains, but it can only
receive a penultimate response dependent upon consensus. The notion of consen-
sus adopted here, in contrast to that of the Habermasian theory of communicative
action and discourse ethics, assumes the essential presence of such phenomena as
rifts, clashes and the regionalization of values.
The Kelsenian superimposition of Being on Validity results from a consideration
of the essential arbitrariness of political power: Kelsens Reine Rechtslehre responds
to this arbitrariness through the hyper-formalization of positive law. Kelsens wari-
ness of power could enable an analogy between literature and the pure theory of law
through the figure of the main protagonist in Kafkas The Trial Josef K. if we
interpret his conduct as a criticism of power.
However, this initial interpretation is rendered more difficult once Anders pre-
sentation of Josef K. is considered. Here, Josef K. subjects himself to power, and,
thus, his obedience legitimizes its every command, and, in turn, a system character-
ized, by Anders, as one of formal precision. For Kafka, formal precision is merely a
kind of religiosity without religion, or, rather, a type of ritualism without ritual, a
bare deontology of action,19 in which precise execution entails the legitimacy of the
order. If there is an order, it is certainly right: its correct fulfilment is demonstrated
by the precision of its enactment. Anders further characterizes this type of action as
a contentless obligatoriness which is paradoxically intended to redeem. The blind,
compulsive commitment to contentless orders is the response to the experience of a
continuously threatening world. In this sense, one can comprehend this as a contin-
ued ritualism the modern archaic analogous to [t]he whole ritual process
[which] is meticulously activated day and night by a primitive magic group, and at
the same time it holds (in this groups eyes) its own world, and especially it wards
off ominous perils (Anders 2006, 114).
Ritualism is the dispositive, or conceptual apparatus, which simultaneously pre-
serves the social order (warding off ominous perils) and threatens it with empti-
ness.20 Hence, the essentially tautological ground of the social and legal order: why
rules are to be obeyed? Because a norm is a norm is a norm, or, because the law
is the law (Muraro 2013, 34). Michel de Montaigne describes the tautology as the
mystic foundation of the law itself: Now laws remain respected not because they

For Teubner, the empty claim of validity of the law (Teubner 2013, 416).
19

In contrast to the approach of Pitch (1995, 179), in which ritualism, as pharmakon, reveals the
20

paradoxes and ambiguities of the universalism of Human Rights. On pharmakon and Human
Rights, see Baccelli (1999, 151).
230 F. Tedesco

are just but because they are laws. That is the mystical basis [fondement mystique]
of their authority. They have no other (Montaigne 2003, par. 110.30). The authority
of the law is grounded in the law itself, which therefore requires a supplement of
legitimation, of a mystical and symbolical nature. This cannot be derived from
force, as if the law requires the use of the force to be enforced, it loses its mystical
and symbolical foundation. In The Force of the Law, Jacques Derrida concentrates
upon another passage of Montaigne our system of Law, they say, bases the truth
of its justice upon legal fictions (fictions lgitimes) (Montaigne 2003, par. 72.141)
in order to affirm that [s]ince the origin of authority, the foundation or ground, the
position of the law cant by definition rest on anything but themselves, they are
themselves a violence without ground (Derrida 1992, 14). Hence, law rests on
tautology and fiction, which however are performative.21
However, in contrast to Derrida, and following the Hobbesian origin of the notion
of fiction, the distinct importance of Kafka becomes apparent. The Hobbesian ori-
gin is itself a reworking of Tacitus fingunt simul creduntque (they feign and at
the same time they believe) (the original Tacitus citation Annals, VI, 10 is
fingebant simul credebantque: They fabricated a tale and immediately believed it
themselves: Tacitus 2008, 183) based upon Francis Bacons paraphrase in The
Advancement of Learning (Bacon 2008, 26),
to describe a general phenomenon: the origins of religion. Hobbes verb feign, close to fic-
tion and fictive, echoes the verb used by Tacitus: fingebant. Hobbess aim was not the
destruction of religion as the product of imagination. He wanted to understand, through
Tacituss paradoxical formula, how religion, born of fear and human imagination, could be
so effective. This line of questioning had a profound impact on Hobbess thought. The
model he set up to explain the origins of religion surfaces again in the central section of
Leviathan, on the page describing the origins of the State (Ginzburg 2015, 6768; italics
added).

The performativity of those hollow words operate as both the foundation of,
and treat to, the social system. It enables the comprehension of law in Kafka, as the
compulsion of legal practice to generate life a second time, by generating a legal
reality which is fictive, yet is very real in its fictivity, almost monstrous (Teubner
2013, 409, italics added). For Teubner,
Kafkas parable renders visible the abysses that are faced by any collective self-reflection of
the epistemic community of the Law. If the Law is standing before the law, then it is on a
desperate search for its origin in time, for justification of its content, and for the social basis
of its norms and judgments. And the insoluble question of priority arises: Does Law per-
haps take precedence over law? (Teubner 2013, 407).

Thus, Kafka reveals the essential circularity ofKelsens theory as the emptiness
of positive law resulting from its performative character: Hans Kelsens attempts
to preserve the purity of Laws normativity against impure empirical influences
fail in light of Kafkas observation that it is precisely from its purity that the obscen-
ity of the Law springs. (Teubner 2013, 420).
The indication of these limitations enables one to return to Anders problem of
the relationship between existence and validity, but to confront it differently. In

On the problem of the fictio iuris see among others: (Kelsen 1919); (Olivecrona 1971); (Ross
21

1959); (MacCormick 1987, who affirms that Grundnorm involves a fictive act of will).
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 231

place of the relationship as a methodologically reductive Hegelism the identity of


the real and the rational it reintroduces the question of ethical life. Hence, there
remains the potential for a democratic and hyper-individualistic comprehension of
Hegels theory of ethical life. This commences from thepresumption that the State
is not real unless related to the obedience of its citizens, which is itself founded
upon the idea that the process of subjectivization arises through the relationship
between the individual and the State. The comprehension of ethical life, in this man-
ner, derives from the adoption, and transposition of the struggle for recognition
between master and slave, which Hegel develops in the Phenomenology of Spirit
(Hegel 1977, 343ff). It, therefore, remains separate from the later conception of
ethical life, in The Philosophy of Right, centred upon the State, in which the indi-
viduality of the State remains undeveloped unless related to other States (Hegel
2001, 263) rather than to its citizens.
The Hegelian notion of recognition, as thematized by Kojves interpretation of
The Phenomenology of Spirit (Kojve 1980), provides the antecedents for this fur-
ther development and extension of the notion of ethical life. This entails the presen-
tation of an analogous form of recognition in the relationship between the State and
the individual/citizen, even if this democratic development is completely extraneous
to the Hegelian philosophical system. The structure of this relationship has an
essentially dual character, as it entails both the fulfillment of citizens political sub-
jectivity and their subjection to State authority. The parameters of this relationship
between the State and the citizen become contestable whenever the former fails to
fulfill the rights of the latter. It is the citizens recognition of the State which pro-
vides it with legitimacy through consensus and, thus, the interpretation of the
Hegelian notion of ethical life opens onto a contractarian phenomenon which,
thereby, modifies the original notion of recognition, developed in The
Phenomenology of Spirit, in order to reveal its democratic potential. The relation-
ship between the State and the citizen has a two-fold character at the level of subjec-
tivization: on the one hand, it transforms individuals into citizens, and entails both
the fulfillment of citizens political subjectivity and their subjection to State author-
ity; on the other, it provides the State with the subjectivity it requires in order to
exercise power (even through recourse to force).

12.5 The Increase intheSources ofLaw

The presence of this notion of ethical life interrupts Kelsens systematic, legal
holism: legal orders coexist, in perpetual dialectical tension animated by
International Law and Human Rights, within a polycentric system. Law, as a system
of norms or normative orders, can no longer be understood as a pyramid-shaped
system: the remnants of the Enlightenment dream of universal harmony preserved
by the methodology of a pure science and logic. Law is the product of the human
action, but law-making activity has become dependent on an increased number of
the subjects who are empowered to participate in this process. Thus, it is necessary
to clarify which actions and facts constitute law-making, and to determine the
232 F. Tedesco

relationship of this realist position to that of legal institutionalism (Santi Romano,


Maurice Hauriou). For, legal institutionalism, in its original form, held that law is a
phenomenon characterized by its essential sociality, organizational nature, and
pluralism. Here, also, the work of Carl Schmitt becomes relevant, as a further devel-
opment of legal institutionalism (Croce and Salvatore 2012), through the theory of
concrete order (konkretes Ordnungsdenken), and the primacy accorded to the State.
However, this further development is intertwined with a notion of institution as a
primal, organic community. While Romanos legal theory is resolutely anti-
voluntarist, in Schmitts further development, one can fairly clearly discern the
sinister shadow of decisionism (La Torre 2010, 101). This is combined with an
avowed anti-pluralism, in which any concrete order requires a Fhrung: a leader-
ship endowed with supreme decisional powers (Ibid., 151).
From the institutionalist perspective, law is comprehended as a social fact in
which society and law are merely two elements of an all-encompassing unity: there
is no law without society, and there is no society without law. Moreover, the plural-
istic approach maintains that there are a number of distinct societies, and that each
society enacts and produces law. The degree of pluralism recognized by this theory
entails that the State is not the only institution which makes law, because it is not the
only society/legal order. Santi Romanos position extended to including the Mafia
as an institution because it too can produce its own laws. However, this indicates the
weakness of legal institutionalism, because it appears to be a type of sociological
positivism which, again, superimposes Being on Validity (what exists is legally
valid). The only difference between institutionalism and a sociological positivism
is that the first, in detaching law from a necessary identification with norms, is anti-
Statist in orientation.
The potential passage beyond these difficulties of the original, institutionalist
approach is represented by the Neo-institutionalism of Ota Weinberger and Neil
MacCormick. This approach reorientates the determination of positive law through
an insistence upon anti-imperativism and anti-normativism. For Weinberger,
the totality of general norms and the corresponding secondary norms legal duties, claims
and legal relations of all kinds belong to this realm [the realm of positive law]. The judi-
cature also belongs to this system of positive law, whether it is an acknowledged source of
law or only belongs to legal life in another way and affects decision-making in practice only
through its arguments or through the authority of higher courts. Legal science and the
socially anchored methods of interpretation also belong to the positive institutionalized ele-
ments of the law as social reality. Legal principles and the teleological background of the
legal order which appear partly as rational abstractions from valid legal prescriptions and
partly as an institutionalized form of juristic foreknowledge, also belong to the system of
positive law. One might perhaps object that in this case, there may appear a certain element
of uncertainty because of the lack of an explicit formal source of our knowledge concerning
the legal principles and purposes of the legal institutions, nevertheless I am of the opinion
that these elements of the legal realm must also be viewed as constituents of legal reality
for they are indeed actually operative in legal practice (Weinberger 1992, 117).

However, this pluralistic, anti-formalistic approach remains one shaped by legal


positivism, in particular, because it continues to presuppose that jurisprudence is
wertfrei (value-free) (La Torre 2010, 109). The question of purity and science
can arise within the framework of jurisprudence, as a theoretical endeavour; but the
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 233

difficulty concerns its extension to law itself as wertfrei. Indeed, one of the central
problems of legal positivism is that it continually risks dissolving the distinction
between the theory of law and the law: the assumption that the two are identical and,
thus, pure. This possibility emerges from the neo-institutionalist negative defini-
tion of legal positivism: the legal positivist does not assume any a priori criteria of
the rightness of law which would be valid independently of human volition and of
human institutions (Weinberger 1992, 116). Further, from a realist perspective, law
(both as science and as the object of that science) is not ahistorical, but is inter-
twined with human decision-making, which, in turn, is dependent upon the particu-
lar historical context. Hence, both the theory of law, and law itself, are subject to the
influence of moral, political, economic, religious and historical elements.
The pursuit of neutrality and objectivity by legal positivists can be considered as
an oversimplification of both the theory of law and its object. From the realist posi-
tion, one commences from a position which includes the dependence of law on a
plurality of sources of human action whose relative importance is shaped by power.
Here, the realist position, recognizes its antecedence in the work of Otto Hintze, for
whom:
A theory of the State which completely removes the idea of power, which does not acknowl-
edge any relationships among States apart from the legal ones, which cannot understand the
single, real historical State except as a part of the universal legal order of a world State,
becomes close to Utopia, to the extent that one insists that its only object is the positive
order of law and State (Hintze 1927, 7475 [my translation]).

In this critique, there is the attempt to introduce elements of realism into the
theory of law and, in particular, the theory of law as a positive legal science. The
realism articulated here is one which seeks to modify the theory of positive law,
through the adoption of anti-formalism and anti-imperativism and, thereby, situate
law as dependent on the decision of the sovereign. However, this initial depen-
dence is qualified by the existence of political, legal and economic struggle and
conflict at the sub-State and supra-State levels. This, in turn, entails that these strug-
gles represent processes of law-making, which involve the contribution to the devel-
opment of positive law, despite the absence of their recognition as an explicit,
formal source of legal principles.

12.6 Conclusion

The task of the realist position is to reveal and acknowledge the increase in the
sources of law, maintaining that law is the product of the interaction of three main
types of sources: formalism/normativism, historicism/realism, and voluntarism/
decisionism (La Torre 1999, 8). However, this pluralism of the sources does not rest
on the idea of a pacified global political and legal space in which law-making is a
continuously harmonious process (neoliberalism; governance). Rather, there is a
necessary dialectical tension among them, and this tension enables one to extend the
idea of an increase in the sources of law to encompass the individual: the idea of the
individual as a lawmaker.
234 F. Tedesco

In Kelsens perspective, the individual is not given prior to the law, hence, his
liberties or freedoms have no prior existence to the law. Thus, it would appear that
rights (i.e., legal personality), as a notion which has primacy over the notion of
entitlement (Berechtigung), has no foundation in Kelsens theory of positive law.
The constraints of this Kelsenian framework can be confronted through the develop-
ment of Althussers theory of interpellation contained in his essay Ideology and
Ideological State Apparatuses (Althusser 1976). The theory of interpellation
enables one to place into question how an individual can be subject to the law if he
is not already a subject. For Althusser, subjectivization is a process which follows
from recognition of a position of power: he uses the example of the call of a police-
man and the turning around towards him of the person who is called. In the act of
turning around, he becomes a subject, i.e., an individual who is subject to the law.
This process, however, immediately opens the question of the connection between
subjectivization and the subject: how can a call be directed if there is not already an
individual to whom it can be directed? This antinomy can be re-expressed and
extended, through the presupposition there is a subject who is already a subject, and,
on the basis of that assumption, a call can be directed at this subject by the police-
man. Hence, the position of power from which the call is directed itself requires the
response to exist: subjectivization is always a theurgical process in which the posi-
tion of power is maintained and reproduced from the response of the subject to
whom it is addressed. In the absence of that response, power collapses.
The appropriation of the insight furnished by the theory of interpellation enables
a reconceptualization of the relationship between the State and the Individual. The
individual, as the person who is called, can refuse to turn towards the power which
calls him, and he can do this on the basis of his Human Rights (a legal personality,
which exists prior to, and independently of, any Berechtigung). His subjectivity,
which precedes the recognition by the State, cuts off the circularity of the co-
originality, which presupposes autonomy as a precondition of the capacity to par-
ticipate in the definition of the rights: the individual is a legal subject before the
covenant, as a consequence of his entitlement as a Human Rights holder. In this
refusal, the individual can temporarily suspend the covenant, and deny his obliga-
tion, through the assertion of his legal personality, in the form of Human Rights, as
the intrinsic foundation for self-protection even against the power of the State. It is
this foundation which represents a distinct source of law, and its assertion becomes
the passage to the sovereignty of the individual.

References

Althusser, Louis. 1976. Idologie et appareils idologiques dtat (Notes pour une recherche). In
Positions (19641975), edited by Louis Althusser, 67125. Paris: Les ditions sociales.
Anders, Gnther. 2006. Kafka: pro e contro. Macerata: Quodlibet.
Archibugi, Daniele. 1993. The Reform of the UN and Cosmopolitan Democracy: A Critical
Review. Journal of Peace Research 30 (3): 301315.
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 235

Augustine.1998. The City of God Against the Pagans. Translated and edited by R. Dyson.
Cambridge: Cambridge University Press.
Baccelli, Luca. 1999. Il particolarismo dei diritti. Roma: Carocci.
Bacon, Francis. 2008. The Advancement of Learning. In Bacon, Francis. The Major Works. Edited
by Brian Vickers. Oxford: Oxford University Press.
Baumgold, Deborah. 1993. Pacifying Politics Resistance, Violence, and Accountability in
Seventeenth-Century Contract Theory. Political Theory 21 (1): 627.
Bobbio, Norberto. 1989. Thomas Hobbes. Turin: Einaudi. English edition: Bobbio, Norberto.
1993. Thomas Hobbes and the Natural Law Tradition. Translated by D. Gobetti. Chicago:
Chicago University Press.
. 1992. Diritto e potere. Saggisu Kelsen. Napoli: Edizioni Scientifiche Italiane.
. 1996. The Age of Rights. Cambridge: Polity Press.
Bull, Hedley. 1986. Kelsen and International Law. In Essays on Kelsen, edited by Richard Tur and
William Twining, 321336. Oxford: Clarendon Press.
. 2002. The Anarchical Society: A Study of Order in World Politics. New York: Palgrave.
Carrino, Agostino. 1987. Kelsen e il problema della scienza giuridica. Napoli: ESI.
Cassese, Antonio. 1990. Remarks on Scelles Theory of Role Splitting (ddoublement fonctionnel)
in International Law. European Journal of International Law 1 (1): 210231.
Croce, Mariano, and Andrea Salvatore. 2012. The Legal Theory of Carl Schmitt. London:
Routledge.
DAgostini, Franca. 1999. Breve storia della filosofia nel Novecento. Lanomalia paradigmatica.
Torino: Einaudi.
Dawson, Mark, and Floris de Witte. 2013. Constitutional Balance in the EU after the Euro-Crisis.
The Modern Law Review 76 (5): 818844.
de Montaigne, Michel. 2003. The Complete Essays. London: Penguin. [Kindle Edition].
Derrida, Jacques. 1992. Force of Law: The Mystical Foundation of Authority. In Deconstruction
and the Possibility of Justice, edited by Drucilla Cornell, Michel Rosenfeld, and David Gray
Carlson, 367. New York: Routledge.
Ferrajoli, Luigi. 2007. Principia juris. Teoria del diritto e della democrazia. Vol. II. Laterza:
Roma-Bari.
Ferrara, Alessandro. 2003. Two Notions of Humanity and the Judgment Argument for Human
Rights. Political Theory 31 (3): 392420.
Francioni, Francesco, edited by 2007. Access to Justice as a Human Right. Oxford: Oxford
University Press.
Garcia-Salmones Rovira, Monica. 2013. The Project of Positivism in International Law. Oxford:
Oxford University Press.
Ginzburg, Carlo. 2015. Paura reverenza terrore. Milano: Adelphi.
Glennon, Michael J. 1999. The New Interventionism. The Search for a Just International Law.
Foreign Affairs 3: 27.
Gumplova, Petra. 2014. Law, Sovereignty and Democracy: Hans Kelsens Critique of Sovereignty.
Paper Presented at the Annual Meeting of the Midwest Political Science Association 67th
Annual National Conference, The Palmer House Hilton, Chicago, IL, 2014-11-29. http://cita-
tion.allacademic.com/meta/p361108_index.html.
Habermas, Jrgen. 1995. Moral Consciousness and the Communicative Action. Cambridge, MA:
MIT Press.
. 1998. The Inclusion of the Other. Studies in Political Theory. Cambridge, MA: MIT Press.
Hegel, George Wilhelm Friedrich. 1977. Phenomenology of Spirit. Oxford: Oxford University
Press.
. 2001. Philosophy of Right. Kitchener: Batoche Books.
Hintze, Otto. 1927. Kelsens Staatslehre. Historische Zeitschrift 135 (1): 6675.
Hobbes, Thomas. 1929. Leviathan. Oxford: Clarendon Press.
Kant, Immanuel. 1917. Perpetual Peace: A Philosophical Essay. London: Allen & Unwin.
236 F. Tedesco

Kelsen, Hans. 1911. Hauptprobleme der Staatsrechtslehre: entwickelt aus der Lehre vom
Rechtssatze. Tbingen. Italian edition: Kelsen, Hans. 1991. Problemi fondamentali della dot-
trina del diritto pubblico esposti a partire dalla dottrina della proposizione giuridica. Napoli:
ESI.
. 1919. Zur Theorie der juristischen Fiktionen. Mit besonderer Bercksichtigung von
Vaihingers Philosophie des Als Ob. Annalen der Philosophie 1: 630658.
. 1920. Das Problem der Souvernitt und die Theorie des Vlkerrechts. Beitrag zu einer
Reinen Rechtslehre. Tbingen: Mohr. Italian edition: Kelsen, Hans. 1989. Il problema della
sovranit e la teoria del diritto internazionale: contributo per una dottrina pura del diritto.
Milano: Giuffr.
. 1926. Les Rapports du systme entre le droit interne et le droit international public.
Recueil des Cours de lAcadmie de droit international 13: 231331.
. 1934a. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik, Wien.
Italian edition: Kelsen, Hans. 1973. Lineamenti di dottrina pura del diritto. Torino: Einaudi.
. 1934b. Die Technik des Vlkerrechts und die Organisation des Friedens. Zeitschrift fr
ffentliches Recht 14: 240255.
. 1941. International Peace-By Court or Government? American Journal of Sociology 46
(4): 571581.
. 1944. Peace Through Law. Chapel Hill: The University of North Carolina Press.
. 1951. The Law of the United Nations. A Critical Analysis of Its Fundamental Problems.
Seventh printing 2008. Union (NJ): The Lawbook Exchange.
. 1960. Reine Rechtslehre. Vienna: Verlag Franz Deuticke. English edition: Kelsen, Hans.
1978. Pure Theory of Law. Berkeley, Los Angeles, London: University of California Press.
. 1979. Allgemeine Theorie der Normen Vienna: Manz Verlag. English edition: Kelsen,
Hans. 1991. General Theory of Norms. Translated by M. Hartney. Oxford: Oxford University
Press.
. 2005. Controverses sur la Thorie pure du droit. Remarques critiques sur Georges Scelle
et Michel Virally. Paris: Panthon Assas.
Kesby, Alison. 2012. The Right to Have Rights: Citizenship, Humanity, and International Law.
Oxford: Oxford University Press.
Kojve, Alexandre. 1980. Introduction to the Reading of Hegel. Lectures on the Phenomenology
of Spirit. Ithaca: Cornell University Press.
La Torre, Massimo. 1999. Ota Weinberger, Neil MacCormick e il neoistituzionalismo giuridico. In
Filosofi del diritto contemporanei, edited by Gianfrancesco Zanetti, 132. Milano: Raffaello
Cortina.
. 2010. Law as Institution. Dordrecht/Heidelberg/London/New York: Springer.
Landauer, Carl. 2003. Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter.
European Journal of International Law 14 (4): 767799.
Laurent, Pierre. 1982. Pufendorf et la loi naturelle. Paris: J. Vrin.
Loidolt, Sophie. 2015. Kant, Kelsen and the Vienna School of Legal Theory. In Detours:
Approaches to Kant in Vienna, in Austria, and in Eastern Europe, edited by Violetta L. Waibel,
468475. Gttingen: Vandenhoeck & Ruprecht.
MacCormick, Neil. 1987. Review of Essays on Kelsen. Philosophical Books 28 (3): 183186.
Mllers, Christoph. 2008. We are (afraid of) the people: Constituent Power in German
Constitutionalism. In The Paradox of Constitutionalism, Constituent Power and Constitutional
Form, edited by Martin Loughlin and Neil Walker, 87106. Oxford: Oxford University Press.
Muraro, Luisa. 2013. Autorit. Torino: Rosenberg & Sellier.
Musio, Alessio. 2011. Etica della sovranit. Questioni antropologiche in Kelsen e Schmitt. Milano:
Vita & Pensiero.
Nickel, Rainer. 2008. Private and Public Autonomy Revisited: Habermas Concept of Co-originality
in Times of Globalization and the Militant Security State. In The Paradox of Constitutionalism,
12 Individual Sovereignty: FromKelsen totheIncrease intheSources oftheLaw 237

Constituent Power and Constitutional Form, edited by Martin Loughlin and Neil Walker, 147
168. Oxford: Oxford University Press.
Oestreich, Gerhard. 1968. Geschichte der Menschenrechte und Grundfreiheiten im Umris, Berlin:
Duncker und Humblot. Italian edition, Oestreich, Gerhard. 2004. Storia dei diritti umani e
delle liberta fondamentali. Roma-Bari: Laterza.
Olivecrona, Karl. 1971. Law as Fact. London: Stevens & Sons.
Pitch, Tamar. 1995. Lantropologia dei diritti umani. In I diritti nascosti. Approccio antropologico
e prospettiva sociologica, edited by A. Giasanti and G. Maggioni, 177202. Milano: Cortina.
Pufendorf, Samuel. 1672. De jure naturae et gentium. Londini Scanorum: Sumtibus Adami
Junghans, Imprimebat Vitus Haberegger.
Ross, Alf. 1959. On Law and Justice. Berkeley: University of California Press.
Rousseau, Jean-Jacques. 1923. The Social Contract & Discourses. London: Dent.
Sassen, Saskia. 2007. A Sociology of Globalization. New York/London: W.W. Norton.
Schtze, Robert. 2012. European Constitutional Law. Cambridge: Cambridge University Press.
Seidler, Michael J. 1996. Turkish Judgment and the English Revolution: Pufendorf on the Right
of Resistance. In Samuel Pufendorf und die europische Frhaufklrung. Werk und Einflu
eines deutschen Brgers der Gelehrtenrepublik nach 300 Jahren (16941994), edited by
F. Palladini and G. Hartung, 83104. Berlin: Akademie.
Soysal, Yasemin. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe.
Chicago: University of Chicago Press.
Tacitus, Cornelius. 2008. The Annals: The Reigns of Tiberius, Claudius and Nero. Translated by
J.C. Yardley. Oxford: Oxford University Press.
Tedesco, Francescomaria. 2003. Affrettate tanatografie. Verso un nomos imperiale? Rivista
Internazionale di Filosofia del Diritto 1: 101118.
. 2009. Diritti umani e relativismo. Roma-Bari: Laterza.
. 2012. Eccedenza sovrana. Milano-Udine: Mimesis.
. 2016. Modelli europei di accoglienza dei rifugiati e richiedenti asilo. Roma: Aracne.
Teubner, Gnther. 2013. The Law Before its Law. Franz Kafka on the (Im)possibility of Laws
Self- Reflection. German Law Journal 2: 405422.
Urbinati, Nadia. 2003. Can Cosmopolitical Democracy be Democratic? In Debating Cosmopolitics,
edited by Daniele Archibugi, 6785. London: Verso.
Verdross, Alfred. 1949. On the Concept of International Law. American Journal of International
Law 43 (3): 435440.
Von Bernstorff, Jochen. 2010. The Public International Law Theory of Hans Kelsen: Believing in
Universal Law. Cambridge: Cambridge University Press.
Weinberger, Ota. 1992. Beyond Positivism and Natural Law. In An Insitutional Theory of Law:
New Approaches to Legal Positivism, edited by Neil MacCormick and Ota Weinberger, 111
126. Dordrecht: D. Reidel Publishing Company.
Zolo, Danilo. 1999. A Cosmopolitan Philosophy of International Law? A Realistic Approach.
Ratio Juris 12 (4): 429444.
Part VI
The Triumph of Legal Science?
Chapter 13
Kelsen andtheNecessity ofGod
intheNatural-Law Doctrine

JohnMcGarry

Abstract In this chapter, I examine Kelsens contention that the natural law doc-
trine necessarily depends on the existence of God or other supreme creator. I argue
that this contention is based on a number of interrelated claims: that the natural law
doctrine attempts to provide a definitive standard of justice; that such a definitive
account may only be posited by a superhuman creator; that natural law seeks to
derive principles of justice from the nature of reality; and that natural law norms
may only be derived from a general norm posited by God, moreover, if natural law-
yers deny the claim that the principles of natural law may only be derived from God,
they must necessarily be attempting to derive an ought from an is. Throughout the
chapter, I challenge Kelsens claims by considering natural law theories which do
not conform to them. I consequently argue that Kelsens conception of natural law
is a caricature which does not correspond to, or accurately reflect, the rich and var-
ied tradition of natural law thought.

13.1 Introduction

It is more than 65 years since Kelsens article, The Natural-Law Doctrine before
the Tribunal of Science (1949), was first published. The article is an extensive con-
sideration of the natural law tradition and amounts to a sustained assault on that
tradition. Kelsen later included the paper in the collection of his essays What is
Justice? (Kelsen 1971), perhaps indicating the importance he continued to ascribe
to the piece.
One of the arguments deployed by Kelsen is that the natural law doctrine inevi-
tably and necessarily depends on the existence of God, or other supreme transcen-
dental being. He writes:
If the natural-law doctrine is consistent, it must assume a religious character. It can deduce
from nature just rules of human behaviour only because and insofar as nature is conceived

J. McGarry (*)
Department of Law and Criminology, Edge Hill University, Ormskirk, UK
e-mail: mcgarryj@edgehill.ac.uk

Springer International Publishing AG 2017 241


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_13
242 J. McGarry

as a revelation of Gods will, so that examining nature amounts to exploring Gods will
(1949: 482).1

He continues: As a matter of fact, there is no natural-law doctrine of any impor-


tance which has not an essentially religious character (1949: 485). He states that
reliance on such metaphysical assumptions is not acceptable from the point of view
of science (which attempts to establish objective truth) and so must be rejected
(1949: 485).2
There is, of course, a long tradition within natural law thought that is dependent
on religious explanations. Perhaps the most obvious example is to be found with
Aquinas whose natural law is the participation of the eternal law in rational crea-
tures (Finnis 1980: 398). However, there is also a well-established, and well-
known, tradition that natural law values may be established without any reliance on
God or religion generally. Bix writes: most of the important writers in [the natural
law] tradition have gone to some lengths to dissociate the principles of natural law
from belief in a particular religious tradition or from belief in a (certain kind of)
deity (2002: 67). Grotius, for example, to whom Kelsen often refers in his article,
famously asserted:
What we have been saying [about natural law] would have a degree of validity even if we
concede that which cannot be conceded without the utmost wickedness, that there is no God
or that the affairs of men are of no concern to him (Grotius 1957 cited in Crowe 1977:
223224).3

More recently, Finnis claims to have provided a rather elaborate sketch of a


theory of natural law without needing to advert to the question of Gods existence
or nature or will (1980: 49). As Hart puts it: Natural Law has not always been
associated with belief in a Divine Governor or Lawgiver of the universe, and even
where it has been, its characteristic tenets have not been logically dependent on that
belief (1994: 187). He further writes: Indeed, the continued reassertion of some
form of Natural Law doctrine is due in part to the fact that its appeal is independent
of both divine and human authority (1994: 188).
Thus, Kelsens assertion that the natural-law doctrine necessarily depends on a
supreme creator is significant and controversial. I explore and challenge his argu-
ment in this chapter. His contention is based on a number of interrelated claims:
first, that the natural law doctrine attempts to provide a definitive answer to the

1
See, also, Only under this presupposition [i.e.: that a divine will is inherent in nature] is it pos-
sible to maintain the doctrine that the law can be deduced from nature and that this law is absolute
justice (1949: 485); and Above the imperfect positive law created by man a perfect, because
absolutely just, natural law exists, established by divine authority (1949:485).
2
He also writes that the natural-law doctrine may deny the jurisdiction of [the tribunal of science]
by referring to its religious character (1949: 485), thereby implying that religious based assertions
are not suitable for scientific (i.e.: objective) evaluation.
3
It is noteworthy that Kelsen quotes Grotius view that acts may be prohibited or encouraged by
the authority of nature, God and that the essential traits implanted in man, from which we may
derive laws of nature can rightly be attributed to God (1949: 482) but that he does not mention
Grotius assertion that his account of natural law would be valid if God did not exist.
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 243

question of what justice requires; second, that a definitive account of justice may
only be posited by a deity; third, that the natural law doctrine attempts to derive an
account of justice from the nature of reality and that this is only possible if nature
has a will and intelligence which, in turn, suggests a superhuman being as creator;
and, fourth, that the rules of ethics or jurisprudence are norms which must have been
posited and that this could only have been done by a superhuman being; moreover,
if we do not assume that there is a divine will in the reality from which we attempt
to derive normative values, we are reduced to trying to derive an ought from an
is. I examine each of these assertions in turn.

13.2 Natural Law andaDefinitive Account ofJustice

Kelsen writes that: The Natural-law doctrine undertakes to supply a definitive solu-
tion to the eternal problem of justice, to answer the question as to what is right and
wrong in the mutual relations of men (1949: 481). He makes a similar claim at the
end of his article, that the natural-law doctrine pretends to determine in an objec-
tive way what is just (1949: 513).
This assertion is important for two reasons. First, though Kelsen does not explic-
itly state this, if the natural law doctrine claims to provide a definitive account of
justice then it is suitable to be evaluated before the tribunal of science. That is, if the
natural law doctrine claims to provide an objective standard of justice then it is
appropriate to evaluate its claims by objective standards. Without such a contention,
we may question whether it is appropriate to adopt, as Kelsen seeks to do, a scien-
tific (which I take to mean objective) evaluation of the natural law doctrine.
Second, and more pertinently for this chapter, the claim that the natural law doc-
trine attempts to provide definitive standards of justice is an important part of his
claim that such standards must be willed by a superhuman being: Only under this
presupposition [that natural law is the manifestation of a divine will] is it possible
to maintain that this law is absolute justice (1949: 485). In contrast, humans
have different, and conflicting, conceptions of justice and so they would be unable
to provide the absolute standard which Kelsen ascribes to the natural law doctrine
(1949: 484).
The assertion that the natural-law doctrine attempts to provide universal princi-
ples of justice has a significant degree of validity. In fact, it is often seen as one of
the central characteristics of natural law that its principles are unchanging, everlast-
ing and the same for all times and all places. Cicero, for example, states:
law in the proper sense is right reason in harmony with nature. It is spread through the
whole human community, unchanging and eternal There will not be one such law in
Rome and another in Athens, one now and another in the future, but all peoples at all times
will be embraced by a single and eternal and unchangeable law (1998: 113114).

Similarly, dEntrves notes that natural law has been conceived as the ultimate
measure of right and wrong (1994: 15) and Nederman writes that the claim that
244 J. McGarry

there are moral precepts of universal force has been at the core of natural law
thinking (1994: xiii).
Yet, there are examples of natural law theories which do not attempt to provide a
definitive account of justice. I examine two in this section: Dworkins theory of law
as integrity and the so-called formalistic approaches to natural law.
Often, Dworkin is not considered to be part of the natural law tradition; rather, it
is commonly assumed that he occupies a middle position between natural law and
legal positivism (Brooks 2007: 514). Yet, Dworkin has himself acknowledged that
he may be classified as a natural lawyer:
If the crude description of natural law I just gave is correct, that any theory that makes the
content of law sometimes depend on the correct answer to some moral question is a natural
law theory, then I am guilty of natural law (1982: 165).4

Simply put, his theory of law as integrity claims that law should be created, inter-
preted and applied in a way which assumes it to be a coherent whole and which
draws on the moral values, including justice and fairness, of each society as inherent
in its legal decisions and institutions. Among other things, this requires judges to
interpret statute and case law in a manner which reflects these moral values:
According to law as integrity, propositions of law are true if they figure in or follow
from the principles of justice, fairness, and procedural due process that provide the
best constructive interpretation of the communitys legal practice (Dworkin 1986:
225).5
We thus see that, while Dworkins work has a moral dimension (and Guest writes
that Dworkins theory of law is moral to the full extent (2009: 352)) it does not
rely on, or seek to identify, a definitive standard of justice. Instead, the moral values
which inform the content of the law are specific, in Dworkins theory, to each par-
ticular society and, therefore, they do not have a universal, unchanging meaning. In
fact, Dworkin argues that the value of integrity is that we can recognise the princi-
pled basis of the law, even if we disagree with the values of justice or fairness to
which it gives effect:
Integrity becomes a political ideal when we insist that the state act on a single, coherent
set of principles even when its citizens are divided about what the right principles of justice
and fairness really are. We assume, in both the individual and political cases, that we can
recognize other peoples acts as expressing a conception of fairness or justice or decency
even when we do not endorse that conception ourselves (1986: 166).

4
We reach the same conclusion if we use Dworkins own definition of the less extreme natural
law theories [which] claim only that morality is sometimes relevant to the truth of propositions of
law. They suggest, for instance, that when a statute is open to different interpretations whichever
interpretation is morally superior is the more accurate statement of the law (1986: 36.). And,
again, if we adopt dEntrves formulation that Perhaps the best description of natural law is that
it provides a name for the point of intersection between law and morals (1965: 116.)
5
Bodenheimer also appears to see this as being firmly within the natural law tradition: The natu-
ral-law approach considers prevailing convictions, widely accepted ideals and the reason of the
age as legitimate supplementary sources of law-finding (1950: 342).
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 245

Thus, while Dworkins theory advocates adherence to principles of justice, fair-


ness and integrity, these are not definitive values in the way that Kelsen appears to
assume. Rather, they may change from society to society.
A similar flexibility appears to be at the heart of what Nederman refers to as
formalistic approaches to natural law. These have as their overarching principle the
maintenance of good society so that the status of natural law is to be accorded to
whatever laws are conducive to the maintenance of the bonds of human society
(Nederman 1994: xii). It is interesting to note here that Kelsen acknowledges that it
is implicit in the work of Hobbes that the maintenance of an ordered society is the
primary natural law norm (1949: 486).
Such an approach assumes that the purpose of a legal system is to regulate the
behaviour of human beings to allow them to live peacefully in communities. Indeed,
Fuller argues that this is the assumption that unites all natural law theories: I
discern, and share, one central aim common to all the schools of natural law, that of
discovering those principles of social order which enable men to attain a satisfac-
tory life in common (1958: 84). Likewise, Hume, with whom Kelsen would no
doubt align himself in his denial that an ought cannot be inferred from an is,6
also believes that certain basic values are necessary if we are to live together in com-
munities: Human nature cannot by any means subsist without the association of
individuals: and that association never could have place were no regard paid to the
laws of equity and justice (Hume 2006: 213).
This formalized approach does not require a definitive standard of justice, in the
sense of an objective measure of what is morally correct; it merely requires precepts
which are necessary to maintain the existence and validity of any particular society.
It is not a permanent set of moral doctrines; it is a flexible system of justice whose
standard of judgment is the conduciveness of human law to social life (Nederman
1994: xii).
It may be thought that both Dworkins theory and the formalistic approach can
be criticised on the basis that their underlying principles integrity and the main-
tenance of the bonds of human society while universal, are so general and abstract
that they demand so little and would permit almost any positive law. Kelsen makes
this very criticism of Hobbes natural law, that it simply requires the maintenance of
a well-ordered society:
Consequently, the natural law which he deduces is practically nothing else but the prin-
ciple that a state endowed with the unlimited power to establish natural law is necessary and
that, by natural law, men are obliged to obey unreservedly the positive law established by
the state (1949: 486).7

Nederman makes a similar point. He writes that a formalized interpretation of


natural law, which aims at the conservation of society but which otherwise has a
varying content could authorize any statute whatsoever provided only that it was

6
See Sect. 13.5.
7
He also writes that this line of argument amounts to the negation of natural law by natural law
(1949: 486).
246 J. McGarry

consistent with the maintenance of human association (1994: xiii). In this way,
Dworkins theory and the formalistic approach appear to be susceptible to the criti-
cism that they lose some of their utility as regulative ideals: that the absence of an
absolute criterion of justice weakens the value of these conceptions of natural law
as standards against which positive law may be evaluated.
That is not to say, though, that there are not universal principles inherent within,
or consequent upon, Dworkins theory of law and the formalized accounts of natural
law. For example, adherence to the theory of law as integrity which involves creat-
ing, interpreting and applying the law on the assumption that it is a coherent whole
leads to secondary benefits. For one, it helps to ensure equality of treatment because
it requires the government to speak with one voice, to act in a principled and coher-
ent manner toward all its citizens, to extend to everyone the substantive standards of
justice or fairness it uses for some (Dworkin 1986: 165). Indeed, Dworkin writes
of law as integrity that it:
provides protection against partiality or deceit or other forms of official corruption
There is more room for favouritism or vindictiveness in a system that permits manufactur-
ers of automobiles and of washing machines to be governed by different and contradictory
principles of liability (ibid: 188).8

It also helps to develop and maintain legal certainty, including predictability,


because it enables people to become more sophisticated in sensing and exploring
what [is required] in new circumstances, without the need for detailed legislation or
adjudication on each point of conflict (ibid).
Similarly, the principle underlying the formalized accounts of natural law,
implies other, secondary, standards. That is, the assumption that the primary pur-
pose of law is to maintain the bonds of society leads to consequent rules or princi-
ples regulating human behaviour so as to preserve those bonds. These secondary
standards compose what Hart has called the minimum content of natural law. He
writes that social arrangements for continued existence require us to recognise
certain truisms about human nature and that there are certain rules of conduct
which any social organization must contain if it is to be viable (Hart 1994: 192
193). The truisms he identifies are Human vulnerability; Approximate equality;
Limited altruism; Limited resources; and Limited understanding and strength
of will. These, in turn, lead to some minimum prohibitive or facilitative rules
including: restrictions on the use of physical violence to kill or cause bodily harm;
rules establishing some minimal form of the institution of property; and rules
enabling men to transfer, exchange or sell their products and to enter into binding
agreements (ibid: 193197).9

8
Elsewhere, Dworkin similarly writes: Coherence is the best protection against discrimination
(2006: 250). Rawls appears to concur (1999: 209).
9
Bodenheimer agrees that it is inherent within the natural law doctrine that certain kinds of human
behaviour should be regulated to ensure the survival of society: According to natural-law doctrine,
the rational side of our nature teaches us that without restrictions on homicide organized society
cannot exist (1950: 346).
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 247

More pertinently for present purposes, Dworkins theory of law as integrity and
the formalistic approach (requiring the maintenance of the bonds of society) are not
posited by some deity; they have a human origin. Dworkins theory is an argument
that the law may make a greater claim on our fidelity because we recognise its prin-
cipled basis even if we disagree with the principles on which it is based. The formal-
ized accounts of natural law assume that the primary aim of law is to regulate people
living in societies and infers from this that the purpose of law is to maintain those
societies.

13.3 God astheSource ofDefinitive Justice

Even if we concede that an absolute ideal of justice is fundamental to, and should be
at the core of, any theory of natural law (consequently, conceding that neither
Dworkins theory nor the formalised accounts described above should be consid-
ered to be natural law theories), does it necessarily follow that such an account may
only be derived from God? Kelsen argues that it does. As already noted, he writes
that a definitive account of justice may only be derived from a deity because humans
will disagree about what justice requires and about which moral norms should take
precedence: One subject may be led by his emotions to prefer personal freedom;
another, social security; one, the welfare of the single individual; the other, the wel-
fare of the whole nation (1949: 484). He continues:
Only if the authority issuing the norms is supposed to be God, an absolute and transcenden-
tal Being, is there an exclusive moral and legal system, and then the values which consist in
compliance with these norms are supposed to be absolute values (ibid).

Yet, there are definitive accounts of justice that claim not to be dependent on
being posited by a divine being; two of the most prominent are offered by Finnis and
Rawls.
Finnis identifies a number of principles of natural law which are based on what
is self-evidently good for human beings. He lists seven basic goods: life, knowl-
edge, play, aesthetic experience, sociability (friendship), practical reasonableness,
and religion (1980: 8590). He calls these the basic goods of human flourishing.
They are not derived from a deity; indeed, they are not inferred or derived from
anything (1980: 3334). Rather, they are simply grasped by practical understand-
ing [of] what is good for human beings with the nature they have (ibid: 34). This
involves
experiencing ones nature, so to speak, from the inside, in the form of ones inclinations
[and] by a simple act of non-inferential understanding one grasps that the object of the
inclination which one experiences is an instance of a general form of good, for oneself (and
others like one) (ibid).

Other objectives and forms of good may be identified but Finnis writes that these
will be found, on analysis, to be ways or combinations of ways of pursuing (not
248 J. McGarry

always sensibly) and realizing (not always successfully) one of the seven basic
forms of good, or some combination of them (ibid: 90).
Rawls, like Kelsen, recognises that humans will have different conceptions of
what justice requires: given the assumption of reasonable pluralism, citizens can-
not agree about a moral order of values or the dictates of what some view as natu-
ral law (Rawls: 2001: 15). Yet, for Rawls, unlike Kelsen, this does not lead to the
conclusion that a definitive account of justice may only be posited by God; in fact,
(and one suspects that Kelsen would agree) pluralism also means that we cannot
agree on any moral authority, say a sacred text or a religious institution or tradition
(ibid). Rather, Rawls seeks to create a hypothetical scenario in which all would
agree on what justice requires. He assumes that it is the individual circumstances of
our lives which lead us to believe in different conceptions of justice so that, [f]or
example, if a man knew that he was wealthy, he might find it rational to advance the
principle that various taxes for welfare measures be counted unjust; if he knew that
he was poor, he would most likely propose the contrary principle (Rawls 1999: 17).
Rawls therefore seeks a solution which attempts to nullify the effects of the special
contingencies which put men at odds and tempt them to exploit social and natural
circumstances to their own advantage (ibid: 118). He suggests a thought experi-
ment whereby we may identify principles of justice with which all would agree.
Briefly put, he imagines an original position where individuals bargain to identify
values of justice. In this original position, the parties are subject to a veil of igno-
rance and do not know certain things about themselves, including their characteris-
tics or situation in life; that is, they do not know those individual circumstances
which might hinder them from reaching agreement about what justice requires.
Rawls then argues that, behind the veil of ignorance, all would be able to agree on
values of justice: The veil of ignorance makes possible a unanimous choice of a
particular conception of justice (ibid: 121).10
Of course, one may question whether it is truly possible to imagine ourselves in
an original position where we are ignorant of our personal circumstances.11 That
aside, the point is that Rawls method does suggest a means of identifying princi-
ples of justice which are not posited by a deity; rather, they are the result an assump-
tion that people who were ignorant of their own particular situation would be able
to agree to certain principles of justice. Likewise, the basic goods which compose
the substance of Finnis natural law are not necessarily dependent on a God; they
are based on an understanding of what is good for oneself and others like one.

10
As a point of interest, Dworkin suggests that those in the original position who would choose the
two principles of justice that Rawls claims they would the so-called liberty and difference prin-
ciples rather than, say, utilitarianism, would also naturally choose interpretivism (i.e.: integrity)
as a better bet to achieve justice in the long run (2006: 249).
11
For example, using Gadamer (1989), I would argue that any attempt to abstract ourselves from
our life circumstances is itself conditioned by those circumstances, by our effective history, so that
the veil of ignorance is an artifice governed by our cultural and life contingencies. Indeed, a num-
ber of writers have detected evidence of bias in Rawls original position (Freeman 2014:
486487).
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 249

13.4 Natural Law andtheNature ofReality

The third aspect of Kelsens argument that I wish to examine is his assertion that
natural law attempts to derive values of justice from the nature of reality and that
this consequently assumes that there is a superhuman being a deity whose will
is evident in reality. He writes:
[The natural law doctrine assumes] that it is possible to deduce from nature, that is to say
from the nature of man, from the nature of society and even from the nature of things certain
rules which provide an altogether adequate prescription for human behaviour, that by a
careful examination of the facts of nature we can find the just solution of our social prob-
lems (1949: 481).

He argues that the view that nature has a purpose or is directed at achieving par-
ticular ends is a teleological one which assumes that nature has a will and
intelligence.12
At one stage in religious evolution, he claims, this belief in the will and intelli-
gence of nature coincided with a belief in animism, that natural things are endowed
with animalistic or human-like qualities and that they should be obeyed because of
their ability to inflict punishments on humans (ibid: 481482). At a later stage in
religious thought, nature is considered to have been created by God and is therefore
regarded as a manifestation of His all powerful and just will (ibid: 482). That is, the
moral values that are immanent in the natural world or in human nature are present
because they must have been willed posited by a creator.
It may well be true that, if we attempt to derive the principles of natural law from
the nature of things (i.e.: the natural world), we must assume that they are posited
by God. This need not be the case with regard to the nature of humans or, indeed,
with regard to the nature of humans living in societies. For example, I have noted
above Harts argument that there are certain truisms of human nature which, con-
sequently, require there to be certain prohibitive and facilitative rules if humans
living together in society is to be viable. That is, we may argue that the collective
human experience indicates that, if humans wish to live together in communities,
then it is better to have rules regulating certain types of behaviour such as prohibit-
ing the indiscriminate harming of others or the free appropriation of anothers prop-
erty and that societies have evolved to encompass such rules. These rules are not
derived from values of justice posited by a supreme creator; rather they reflect the
collective, historical experience of humans that such rules are necessary for the
survival of communities.
There is a second objection to Kelsens contention that the natural law doctrine
attempts to derive values of justice from the nature of things: he ascribes a very nar-
row meaning to the word natural in natural law. He appears to assume that use of
the word natural means that natural lawyers must attempt to derive values from
nature, be it the nature of things (i.e.: the natural world), the nature of humans or the

12
Hart similarly writes that Natural Law is part of an older conception of nature which assumes
that the natural world has a teleological purpose (1994: 188189).
250 J. McGarry

nature of society. This, I suggest, attributes too much significance to the word natu-
ral when discussing natural law. The view that we should not assign too much
importance to the name of these theories is implicit in Dworkins observation that:
the various theories grouped under that title [natural law] are remarkably differ-
ent from one another and the name suits none of them (1986: 35).
Moreover, in adopting such a narrow and literal definition of the word natural,
Kelsen fails to sufficiently consider the rich tradition in natural law thought whereby
natural lawyers argue that ethical values may be arrived at by the use of human
reason. I take human reason to mean the use of ones mental faculties to arrive at
conclusions a priori, through thought experiment, or via a self-reflecting under-
standing about the nature of human beings.
I should be clear that Kelsen does mention the use of reason in natural law
thought throughout his article. So, for instance, he notes that Hobbes, and following
him, Pufendorf, claimed that the principles of natural law are the dictates of rea-
son, but according to Kelsen both associated these dictates to the commands of,
or obligations to, God (1949: 482). He does not acknowledge the importance of
reason as an independent method of arriving at natural law values. Yet, for some, the
essence of natural law is that it attempts to determine its principles by use of human
reason; Hart, for instance, defines natural law thus: [T]he classical theories of
Natural Law [are] that there are certain principles of human conduct, awaiting dis-
covery by human reason (1994: 186). Similarly, Freeman states that one of the
attractions of natural law is that we can reach moral truths through pure reason
(2014: 78).
I have already mentioned above two theorists who attempt to identify precepts of
justice by pure reason: Finnis and Rawls. The former, as noted, asserts that the first
principles of natural law are not inferred or derived from anything (1980: 3334):
They are not inferred from metaphysical propositions about human nature, or about the
nature of good and evil, or about the function of a human being, nor are they inferred from
a teleological conception of nature or any other conception of nature (ibid).

Rawls, as we have seen, also uses a priori reasoning. His thought experiment
simply attempts to determine principles of justice on which all could agree by imag-
ining equals, who are ignorant of their own particular circumstances, negotiating to
determine and prioritise such principles.
So, the principles of natural law identified by Finnis and Rawls are not derived
from the nature of reality. Finnis identifies the basic goods of human flourishing
through a non-inferential understanding of what is good for oneself and others like
one. Rawls uses a thought experiment whereby people ignorant of their own per-
sonal circumstances would be able to agree about what justice requires.
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 251

13.5 Natural Law Norms andtheOught/Is Problem

The fourth aspect of Kelsens argument that I wish to explore is his contention that
the norms of natural law must derive from a general norm, or norms, that this must
be posited by a human or superhuman being, and that it must be assumed to be pos-
ited by a superhuman being, a deity. I will also explore the related argument that if
natural lawyers do not concede that the principles of natural law have been posited
by God, they must necessarily be attempting to derive an ought from an is.
Kelsen assumes that the principles of natural law, being norms, may only be
derived from higher norms and, ultimately, a norm posited by some being.13 His
argument begins by making a distinction between law and morality, on the one
hand, and the scientific laws of nature, governed by cause and effect, on the other:
The relation between cause and effect, whether it is considered as a relation of necessity or
of mere probability, is not attributed to any act of human or superhuman will. If we speak
of morality or law, on the other hand, we refer to norms prescribing human behaviour,
norms which are the specific significance of acts of human or superhuman beings (1949:
483).

He claims that such norms may only be posited by a superhuman, rather than a
human, actor. This is because, as we have seen, Kelsen argues that there could not
be agreement about them as people inevitably differ in their opinions about what
justice requires.14
The claim that the principles of natural law must be derived from a general norm,
or norms, which has been posited may be questioned on the ground that it is not true
of all natural law thinking. We have seen, for instance, that Finnis principles of
natural law are not based on an assumption of what is required to behave justly,
principles which one may assume are derived from a general, posited norm. Rather,
Finnis argues that the basic goods of human flourishing are underived and are ascer-
tained through a process of understanding from the inside what is good for oneself
and others like one. These are not necessarily posited at all, either by a deity or other
being. They are simply self-evidently good for humans and are detectable through
human reason.
Similarly with Rawls. The principles he identifies are not posited by a human or
superhuman actor; rather, they are the result of an assumption that people who were
ignorant of their own particular circumstances would be able to agree to certain
principles of justice.

13
It is worth observing that this supposition is reminiscent of his pure theory of law whereby each
norm of a legal system derives from a higher norm. To be sure, it is, in part, Kelsens assertion that
we cannot rely on a meta-norm whether derived from God or nature that leads him to posit a
basic norm, the Grundnorm, which must be presupposed (2002: 201205).
14
As a point of interest, Dworkin states that the existence of God would not, in itself, evade what
he calls Humes principle (that moral values cannot be derived from facts). The scientific fact of
Gods existence, like any other fact, does not justify a particular conviction of value without some
additional background principle to explain why (Dworkin 2013: 2129).
252 J. McGarry

In contrast, there does seem to be a basic norm underpinning Harts minimum


content of natural law. As we have seen, he identifies this minimum content by rec-
ognising a number of truisms about human nature and assuming that it is an aim of
humans to survive (1994: 192193). There also seems to be an assumption that the
primary purpose of law is to enable individuals to live together peacefully in com-
munities. Thus, it might be said that there is a higher norm here: that law ought to
be such that it enables humans to live peacefully together. It might even be argued
that this norm has been posited; however, if so, it has been posited by society gener-
ally rather than being the result of an act of will by identifiable human or superhu-
man actors. Alternatively, one might argue that, much like the Grundnorm, this
norm about the purpose of law may simply be assumed or presupposed.
The point is that Finnis and Rawls offer methods of arriving at principles of natu-
ral law or justice that are not reliant on such principles being posited at all. Harts
minimum content of natural law may be thought to have a basic norm underpinning
it but, if so, this has not, I contend, been posited by identifiable individuals; rather,
it is the result of the common experience of society generally.
Kelsen also claims that if natural lawyers do not assume that natural law values
have been posited by a deity they are forced to attempt to derive an ought from an
is. He writes:
The natural-law doctrine presupposes that value is immanent in reality and that this value is
absolute, or, what amounts to the same thing, that a divine will is inherent in nature Since
the metaphysical assumption of the immanence of value in natural reality is not acceptable
from the point of view of science, the natural-law doctrine is based on the logical fallacy of
an inference from the is to the ought (1949: 485).

That is, the natural law doctrine works on the assumption that moral values may
be deduced from reality, which in turn requires such values to be posited by divine
will. Yet, he argues that science rejects such an explanation which means that the
natural law doctrine is reduced to the logical fallacy of attempting to derive moral
precepts from facts about the natural world: to derive an ought from an is. This
is a logical fallacy because, as Goldsworthy puts it,
one cannot logically deduce a conclusion from premises which do not implicitly contain it
Moreover, purely factual propositions do not implicitly contain normative propositions.
Normative propositions, about what people ought to do, are prescriptive, recommending or
directing that action be taken. But purely factual propositions are merely descriptive they
do not by themselves amount to or include practical recommendations or directions
(Goldsworthy 1996: 23).

Kelsen puts it a little more prosaically: The fact that in reality big fish swallow
small fish does not imply that the behaviour of the fish is good, nor yet that it is bad
(1949: 484).
We have already seen that Finnis states that his method does not attempt to derive
the first principles of natural law from facts about reality. Moreover, he states that
the classical exponents of the [natural law] theory did not dream of attempting
any such derivation (1980: 33). Indeed, Finnis writes that the non-inferential
methodology he adopts was employed by Aquinas (ibid: 3334) who, for instance,
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 253

asserts as plainly as possible that the first principles of natural law, which specify the basic
forms of good and evil and which can be adequately grasped by anyone of the age of reason
(and not just by metaphysicians), are per se nota (self-evident) and indemonstrable (ibid:
33).

It is worth noting here that Kelsen does not mention Aquinas once in his article
despite the latters position as the most famous and influential of all natural law
theorists (George 2004: 237).
When discerning the first principles of natural law, Finnis argues that we are not
reasoning in the way that Kelsen seems to assume: attempting to derive moral norms
from natural facts. Instead, intelligence is operating in a different way, yielding a
different logic (ibid: 34); it is not utilizing the narrow syllogistic approach assumed
by those who prohibit the derivation of an ought from an is.
Summers also writes that many natural law theorists disclaimed that they were
engaged in an inferential process to begin with. They believed that basic notions of
value such as life, knowledge, and sociability are self-evident (1984: 70). He notes
that Fuller complained that the argument that we cannot derive ethical norms from
facts amounted a sweeping doctrine to the effect that facts cannot tell lawyers,
legislators, and judges what they ought to do and that he (Fuller) could not accept
such a doctrine (ibid).15 Rather, Fuller argued that
The existence of purposes is factual, and from given purposes we may readily argue that we
ought to have one rule rather than another. Further, facts also have a bearing on the question
of purposes in the first place, for the available means is factual and will quite properly be
considered alongside those purposes (ibid).

We can see this very approach in Harts argument, noted above, that we can iden-
tify a minimum content of natural law. He begins by identifying some facts, some
truisms, about human beings that we have Approximate equality; Limited altru-
ism; Limited resources etc. and that law has a purpose: to allow us to maintain
a viable society. From this purpose, and these facts, he was able to conclude certain
principles, as we saw above: rules restricting the use of violence, establishing the
institute of property and enabling people to enter into binding agreements.
Rawls, also, cannot be accused of the fallacy of attempting to move from the is
to the ought. He does not attempt to derive principles of justice from facts, from
the nature of reality, of society or of human nature. Rather, the principles he ascer-
tains are those which he contends we would agree to if we were ignorant of our
personal circumstances. They are just because of this assumed agreement, not
because they are inherent in nature having been posited by God or inferred from the
factual reality.

15
Moreover, Fuller argues that the positivists attempt to divorce law from morality, to become
pure science, means that they fail to have anything significant to say about the content of the law
and, thereby, their usefulness as legal theorists is limited (Fuller 1966: 8595).
254 J. McGarry

13.6 Conclusion

When reading Kelsens article, one is often struck by the uncompromising force of
his argumentation which he pursues with his characteristic forthrightness. And, at
first reading, his claims that the natural law doctrine necessarily depends on the
existence of some deity are convincing. On closer analysis, though, it becomes
apparent that the target of his critique is something of a caricature and does not
accurately or fully represent the richness or variety of the natural law tradition. This
is epitomised to a large degree by his failure to mention, let alone engage with,
Aquinas not only a philosopher whom one would expect to be considered in any
serious examination of the natural law tradition, but a theologian to boot, and so one
whose views one would expect to see explored when claiming that the natural law
doctrine necessarily and inevitably depends on the existence of God.
In this chapter, I have some drawn on the work of Dworkin, Hart, Finnis, Rawls
and others to posit some possible challenges to Kelsens claims. I have done this to
indicate the flaws in his failure to engage with the natural law tradition fully and in
all its diversity.
That is not to say that I have considered the alternative arguments mentioned
above on the basis that they are beyond criticism. On the contrary, I recognise that
each of them may be challenged and have made reference throughout this chapter to
some possible counter-arguments. For instance, as I have noted, both Dworkins
theory of law as integrity and the formalized approaches to natural law may be criti-
cised on the basis that they are not true theories of natural law because they do not
depend upon, or attempt to posit, a definitive standard of justice. Moreover, one can
easily guess the response of Kelsen to Finnis claims that the basic goods of human
flourishing are self-evident and indemonstrable or to the claims that this method-
ology, or that involved in Harts minimum content of natural law, successfully
circumvents the prohibition on deriving an ought from an is. Rawls may also be
subjected to the well-known criticism that it is not possible to imagine oneself com-
pletely subject to the veil of ignorance and thereby produce principles of justice to
which all would agree.
Of course, one should make allowances for the fact that many of the arguments
detailed above came after Kelsen. Yet, this is not true of all of them and, as I have
indicated, many have antecedents in older traditions of which Kelsen was surely
aware. It therefore remains, I think, a valid criticism that his failure to adequately
consider alternative arguments, and to engage with the full, rich and varied tradition
of natural law thought, means that his attack is weaker, and his conclusions more
questionable, than they might at first appear.

Acknowledgement I am grateful to my co-editors, Dr. Peter Langford and Dr. Ian Bryan, for
their comments and suggestions on an earlier version of this chapter; any errors remain my own.
13 Kelsen andtheNecessity ofGod intheNatural-Law Doctrine 255

References

Bix, Brian H. 2002. Natural Law: The Modern Tradition. In Oxford Handbook of Jurisprudence
and Philosophy of Law, edited by Jules L. Coleman and Scott Shapiro, 61103. Oxford: Oxford
University Press.
Bodenheimer, Edgar. 1950. The Natural-Law Doctrine Before the Tribunal of Science: A Reply to
Hans Kelsen. The Western Political Quarterly 3: 335363.
Brooks, Thom. 2007. Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal
Theory. Georgia State University Law Review 23 (3): 513560.
Cicero, Marcus T. 1998. The Republic and the Laws. Translated by N. Rudd. Oxford World
Classics, Oxford University Press.
Crowe, Michael B. 1977. The Changing Profile of Natural Law. The Hague: BRILL.
dEntrves Alexander, P. 1994. Natural Law: An Introduction to Legal Philosophy. 2nd ed. New
Brunswick: Transaction Publishers.
Dworkin, Ronald. 1982. Natural Law Revisited. University of Florida Law Review 34:
165188.
. 1986. Laws Empire. London: Fontana Press.
. 2006. Justice in Robes. Cambridge, MA: Harvard University Press.
. 2013. Religion Without God. Cambridge, MA: Harvard University Press.
Finnis, John. 1980. Natural Law and Natural Rights. Oxford: Oxford University Press.
Fuller, Lon L. 1958. A Rejoinder to Professor Nagel. Natural Law Forum 3: 83104.
. 1966. The Law in Quest of Itself. Boston: Beacon Press.
Freeman, Michael D.A. 2014. Lloyds Introduction to Jurisprudence. 9th ed. London: Sweet &
Maxwell.
Gadamer, Hans-Georg. 1989. Truth and Method. 2nd edn. Translated by Joel Weinsheimer and
Donald G. Marshall. London: Sheed & Ward.
George, Robert P. 2004. Kelsen and Aquinas on the Natural Law Doctrine. In St. Thomas Aquinas
and the Natural Law Tradition: Contemporary Perspectives, edited by John Goyette, Mark S.
Latkovic, and Richard S. Myer, 237259. Washington, DC: The Catholic University of America
Press.
Goldsworthy, Jeffrey. 1996. Fact and Value in the New Natural Law Theory. American Journal of
Jurisprudence 41 (1): 2146.
Guest, Stephen. 2009. How to Criticize Ronald Dworkins Theory of Law. Analysis 62: 352364.
Hart, Herbert L.A. 1994. The Concept of Law. 2nd ed. Oxford: Oxford University Press.
Hume, David. 2006. In Moral Philosophy, edited by Geoffrey Sayre-MaCord. Indianapolis:
Hackett Publishing Co.
Kelsen, Hans. 1949. The Natural-Law Doctrine Before the Tribunal of Science. The Western
Political Quarterly 2: 481513.
. 1971. What is Justice: Justice, Law and Politics in the Mirror of Science: Collected
Essays. Berkley: University of California Press.
. 2002. Pure Theory of Law. 2nd edn. Translated by Max Knight. Clark: The Lawbook
Exchange.
Nederman Cary J. 1994. Introduction. In Alexander. P. dEntrves Natural Law: An Introduction to
Legal Philosophy. 2nd edn. New Brunswick: Transaction Publishers.
Rawls, John. 1999. A Theory of Justice. Revised ed. Oxford: Oxford University Press.
. 2001. In Justice as Fairness: A Restatement, edited by Erin Kelly. London: Belknap Press.
Summers, Robert S. 1984. Lon L. Fuller. Stanford: Stanford University Press.
Chapter 14
Kelsen onNatural Law andLegal Science

JanSieckmann

Abstract Kelsen rejects the scientific character of natural-law doctrine. For Kelsen,
value judgments are ultimately not rationally justified but a matter of emotions.
They can be rationally justified only relative to a certain moral or legal order. Kelsen
also rejects the assumption of natural-law doctrines that value is immanent in real-
ity. On the other hand, he suggests that legal science is possible regarding positive
law, which is converted into a normative order by presupposing a basic norm. I
will not challenge Kelsens critique of traditional natural-law doctrine, but discuss
two issues: Can Kelsens own account of the Pure Theory of Law claim to be
scientific, and does Kelsens critique of traditional natural-law theories affect mod-
ern versions of normative theories of law?
As to the first issue, according to Kelsen, legal science is possible because it
refers to positive law, which one can identify by empirical means. However, Kelsen
is not content with a purely descriptive approach to law, but wants to show how legal
science is possible as a science of norms. In this respect, the basic norm is crucial.
This chapter questions whether the mere presupposition of a basic norm is sufficient
to establish the scientific character of legal doctrine.
As to the second issue, quite a number of theories have been advanced that pur-
port to show how scientific, or at least rational, treatment of normative issues is
possible without the dubious assumptions of traditional natural-law doctrines. I will
discuss in particular Gustav Radbruchs methodological trialism and the dis-
course theory of law as presented by Robert Alexy. From this discussion, I will then
proceed to address the further question of the continued relevance of Kelsens cri-
tique of natural-law doctrine for legal science.

J. Sieckmann (*)
Faculty of Business, Economics, and Law, University of Erlangen-Nuremberg,
Erlangen, Germany
e-mail: jan.sieckmann@fau.de

Springer International Publishing AG 2017 257


P. Langford et al. (eds.), Kelsenian Legal Science and the Nature of Law, Law
and Philosophy Library 118, DOI10.1007/978-3-319-51817-6_14
258 J. Sieckmann

14.1 Introduction

Kelsen rejects the scientific character of natural-law doctrine (Kelsen 1960, 142).
According to Kelsen, value judgments are ultimately not rationally justified but a
matter of emotions. They can be rationally justified only relative to a certain moral
or legal order but not by reference to some value immanent in reality (Kelsen 1960,
141). On the other hand, Kelsen suggests that legal science is possible regarding
positive law, which is converted into a normative order by presupposing a basic
norm (Grundnorm) (Kelsen 1976, 12, 8). Notwithstanding some critical observa-
tions, I will not dispute the pertinence of Kelsens critique of the traditional doctrine
of natural-law, whose central elements will be assumed to retain a continued coher-
ence. However, the two paths of critical discussion will be initiated by posing the
following questions: Can Kelsens own account of the Pure Theory of Law claim
to be scientific, and is Kelsens critique of traditional natural-law theories capable of
extension to encompass modern versions of normative theories of law?

14.2 Kelsens Critique ofNatural-Law Doctrine

Kelsen assumes that the natural-law doctrine undertakes to provide a definitive solu-
tion to the problem of justice, that is, to answer the question regarding what is right
and wrong in the mutual relations of men, based on the assumption that it is possible
to distinguish between human behaviour which is natural, namely which corre-
sponds to nature because it is required by nature, and human behaviour which is
unnatural, hence contrary to nature and forbidden by nature. This implies that it is
possible to deduce from nature certain rules, which provide an altogether adequate
prescription for human behaviour (Kelsen 1960, 137). According to Kelsen, this
view presupposes that natural phenomena are directed to an end or shaped by a
purpose, which is a thoroughly teleological view, and nature is regarded as a super-
human personal being, an authority to which man owes obedience (Kelsen 1960,
137). The rights established by natural law are sacred rights inborn in man because
implanted in man by a divine nature. Positive law can neither establish nor abolish
these rights but only protect them (Kelsen 1960, 138).
Kelsens first objection against this natural-law doctrine is that it obliterates the
difference between scientific laws of nature, that is, the rules by which the science
of nature describes their objects, and the rules by which ethics and jurisprudence
describe their objects. A law of nature is a statement to the effect that if there is A,
there is B, whereas a rule of morality or a rule of law is a statem