JURISPRUDENCE LECTURE 8

MODERN POSITIVISM: KELSEN’S PURE THEORY OF LAW 1

Biography
 Prague, 1881- California, 1973
 Studied in Vienna
 Drafted the amended Austrian constitution after WWI, also served in Austria’s
Supreme Court
 Wrote on: justice, international law, political theory, the Nuremburg war crimes
trials, etc
 Throughout his life he tried to construct a ‘watertight’, self-contained positivist
theory of law in various books that built on each other

The Question
 What follows from the fact that people treat legal rules as valid norms?
 Norm: something that can be used as a guide to human action
o Rule that you need to boil pasta for 10 min is a cooking norm
o Rule that you ought not to lie to other persons (barring exceptions) is a moral
norm
o Rule that the police officer is authorized to arrest you if you commit a certain
action is a legal norm
 Legal norm: an authorization to an official to impose sanctions
o The form of every (primary) legal norm: If A (a citizen) performs a wrong
action, then B (an official) is authorized to impose a sanction
 Norms involve an ‘ought’ (or a ‘should’ or a ‘duty’ or an ‘obligation’) to do something
 Validity: the mode of existence of norms
o In natural reality, physical objects exist or do not exist
o In normative reality, norms are valid or invalid
 What follows from the fact that people treat legal rules as actual guides to their
behavior?
 What follows from the fact that people believe that legal rules make it the case that
they ought to/should or have a duty/obligation to perform certain actions?
o The underlying premise: a legal rule can be a valid norm (it can generate
‘oughts’)
o The problem: how can this be possible?
o The solution: a legal rule can be a valid norm if its creation is authorized by
another legal rule which is a valid norm
The chain of validity
 The legal rule X is promulgated by the city council that ‘one ought not to park here’
can be a valid norm, it can be true that one ought not to park here
 For this to be true, it must be true that there is another legal rule promulgated, e.g.
by the Parliament that authorized the creation of the legal rule C, i.e. the legal rule Y
that the city council is authorized to decide where people park. But the legal rule Y
must also be a valid norm, so that it is true that the city council is authorized to
decide where people park
 For this to be true, it must be true that there is another legal rule enshrined e.g. in
the constitution that authorizes the creation of legal rule Y, i.e. the legal rule Z that
the Parliament is authorized to authorize city councils to enact certain legal rules
pertaining to these issues. But the constitutional legal rule Z must also be valid, so
that it is true that the Parliament authorized the creation of the legal rule Y.
 Problem: At some point there will be no other legal rule to authorize the creation of
another legal rule

The Question
 What follows from the fact that people treat legal rules as valid norms (i.e. that they
believe that legal rules make it in the case that they ‘ought’ to perform certain
actions)?
o Underlying premise: legal rules can be valid norms (i.e. they can generate
‘oughts’)
o Problem: the chain of validity of legal rules at some point comes to an end; it
stops to the legal rules of the historically first constitution
o Solution: a transcendental argument

The transcendental argument

 There is a fundamental phenomenon whose existence is unchallenged or
uncontroversial
o I think
o Legal rules can be valid norms (i.e. can generate ‘oughts’)
 But for this phenomenon to exist, a necessary condition that enables the
phenomenon must also exist
o I must exist so that I can think
o Something must exist/be valid (what?) for legal rules to be valid norms
 Therefore, this enabling condition must also exist
o Therefore, I exist
o Therefore, this ‘something’ exists/is valid
 The transcendental argument is:
o Legal rules can be valid norms (i.e. can generate ‘oughts’)
o Something must exist/be valid for legal rules to be valid norms
o Therefore, this ‘something’ exists/is valid

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Alternatives
 1st alternative
o This ‘something’ exists (part of natural reality)
 nd
2 alternative
o This ‘something’ is valid (part of normative reality)

‘Is’ vs ‘ought’
 1st alternative: This ‘something’ exists (part of natural reality)
o Hume’s problem: Once cannot derive an ‘ought’ from an ‘is’
o A description of facts (that just ‘are’) can never be sufficient to justify a
conclusion that someone ‘ought’ to do something
o Bad argument:
 A baby ‘is’ drowning in a puddle
 You ‘are’ able to walk there and save it
 Thus, you ‘ought’ to save it
o But we can justify this conclusion only if we insert an ‘ought’ premise
o Good argument:
 You ‘ought’ to prevent a serious harm to another person if you are
able to do so and this will entail little inconvenience to yourself
 A baby ‘is’ drowning in a puddle, you ‘are’ able to walk there and save
it, it will only take you a couple of minutes
 Thus, you ‘ought’ to save the baby
o The transcendental argument
 Legal rules can be valid norms (i.e. can generate ‘oughts’)
 Something must exist/be valid for legal rules to be valid norms
 Therefore, this ‘something’ exists/is valid
 But this ‘something’ cannot be a fact that exists in natural reality;
otherwise, we would derive the ‘ought’ of legal rules from an ‘is’
 nd
2 alternative: This ‘something’ is valid (part of normative reality)
o The transcendental argument
 Legal rules can be valid norms (i.e. can generate ‘oughts’)
 Something must exist/be valid for legal rules to be valid norms
 Therefore, there must be a Basic Norm (Grundnorm) that validates
the legal rules of the historically first constitution, which in turn
validate all other legal rules through the chain of validity

The chain of validity

 Problem solved!
 For the constitutional legal rule to be valid, it must be true that there is a Grundnorm
that ‘one ought to behave as the rules of the constitution, and the rules created
according to it, prescribe’

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Hierarchy of norms

The Grundnorm
 The Grundnorm is the reason for the validity of all norms belonging to a legal order
o Legal norms that trace their validity from the same Grundnorm form part of
the same legal order
o Thus, the Grundnorm constitutes the unity of the legal system
 The rest norms are created by the will of people. But the Grundnorm is presupposed
in juristic thinking.
 It is necessary theoretical postulate of the validity of legal norms
o Since it is not posited by the will of people, it is meta-legal (if we restrict the
term ‘legal’ for positive law)
o Since it has legally relevant functions (i.e. it founds the validity of legal rules),
it can also be considered legal (if we take a broader definition of the term
‘legal’)
 Effectiveness
o The validity of legal rules cannot be entirely disconnected from the question
of whether these legal rules are applied by public officials, i.e. from the
question of whether they are effective. Otherwise, Kelsen’s theory would be
completely detached from reality
o Nor the validity of legal rules can be identified with their effectiveness.
Otherwise, the only thing we need to ask to find out whether a legal rule is
valid is the question of whether public officials apply this legal rule, thus the
Grundnorm would become otiose.
o The reason for the validity, that is, the answer to the question why the norms
of this legal order ought to be obeyed and applied, is the presupposed basic
norm
o This effectiveness of a legal order as a whole and the effectiveness of a single
norm are the condition for the validity; effectiveness is the condition in the

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 sense that a legal order as a whole, and a single legal norm, can no longer be
regarded as valid when they cease to be effective
o The content of Grundnorm encompasses the effectiveness of the legal order
as a whole and the effectiveness of individual legal norms
o The content of the Grundnorm:
 One ought to comply with an actually established, by and large
effective, constitution, and therefore with the by and large effective
norms, actually created in conformity with that constitution