On the Puzzle Surrounding Hans Kelsen's Basic Norm

Whereas fundamental norms in the juridico‐philosophical tradition serve to impose constraints, Kelsen's fundamental norm—or basic norm (Grundnorm)—purports to establish the normativist character of the law. But how is the basic norm itself established? Kelsen himself rules out the appeals that are familiar from the tradition—the appeal to fact, and to morality. What remains is a Kantian argument. I introduce and briefly evaluate the Kantian and neo‐Kantian positions, as applied to Kelsen's theory. The distinction between the two positions, I argue, is reflected in an ambiguity in the use of the term “regressive.”     

Authority and Representation

The act of `setting the law' enjoysa central position in Kelsen's theory of authority.His analysis of this act criticizes, amongst others,the assumption of natural-law doctrines that norms areobjective when they duplicate a content given directlyto cognition and independently of the act whereby thenorm is enacted. Correctly, Kelsen attacks the conceptof representation underlying this assumption as anexample of metaphysical dualism and a copy theory ofknowledge. Does, then, an alternative understanding ofauthority require scrapping representation from atheory of positive law? Or does it requireinterpreting representation differently? Following thesecond path, this paper reconstructs the act ofsetting the law in terms of the critical concept ofrepresentation developed by Ernst Cassirer andsuggests how, thus reconstructed, the structure ofthis act can account for the law's authority and itscontingency.

     

Normological Inferences and the Generation of Legal Norms

Abstract. This paper is an answer to Mazzarese (1993) in which the author argues that Kelsen's normological scepticism is a consequence of his theory of legal dynamics and of his views on the relation between higher and lower norms. The author rejects this tenet and reasserts his opinion that there is an essential break between the classical Pure Theory of Law and Kelsen's late doctrine. Therefore an inquiry is justified whether the theses and concepts of the classical Pure Theory are compatible with normological scepticism in Kelsen (1979). Mazzarese's comments on neo-institutionalist views on legal validity are based on a misinterpretation of this conception.     

Metamorphosis in Hans Kelsen's Legal Philosophy

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his ‘Kantian filter’. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.     

Hans Kelsen's Normativist Reductionism

Abstract. This paper discusses Kelsen's attempt at reducing the concept of subjektives Recht (what is subjectively right) to that of objektives Recht (what is objectively right). This attempt fails, it is argued, because in Kelsen's theory the concept of subjektives Recht survives concealed within the concept of individual norm (individuelle Norm), a norm that, pace Kelsen, is not a case of what is objectively right (objektives Recht) but is precisely what is subjectively right (subjektives Recht): We could call it “what is individually right.”     

Hart's and Kelsen's Concepts of Normativity Contrasted*

Abstract. Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading.     

Instituting Authority. Some Kelsenian Notes

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view     

Hans Kelsen's Concept of Normative Imputation

This article compares and contrasts Hans Kelsen's concept of normative imputation, in the Lecture Course of 1926, with the concepts of peripheral and central imputation, in The Pure Theory of Law of 1934. In this process, a wider and more significant distinction is revealed within the development of Hans Kelsen's theory of positive law. This distinction represents a shift in Kelsen's philosophical allegiance from the Neo‐Kantianism of Windelband to that of Cohen. This, in turn, reflects a broader disengagement of The Pure Theory of Law from the more direct connection with a political project of a civitas maxima envisaged by the Lecture Course.     

Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes  to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”     

Kelsen's Theory on International Law during His Exile in Geneva

Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo‐Kantian notion of “system.” According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,” creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.     

Does Kelsen’s Notion of Legal Normativity Rest on a Mistake?

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ??intention?? into a cognizable object of legal science while simultaneously providing an explanation of the legal ??ought??. The methodological strategy is the ??inversion thesis?? which establishes that legal norms enable us to objectively identify and determine the ??will?? or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ??objectifies?? the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ??will??, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ??ought?? and therefore the ??will??. Yet, surprisingly and contrary to Kelsen??s own notions, I will show that Kelsen??s ??inversion thesis?? is parasitic on Aristotle?CAnscombe??s ??ought??.     

The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law

The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post‐Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us.     

Coordination Cannot Establish Political Authority

One of the most common arguments in favour of the state's authority is that without the coordinating hand of political institutions, we could not achieve important moral benefits. I argue that if we understand authority correctly, then coordination cannot even in principle establish that coordinators have political authority.     

The Purity Thesis

Hans Kelsen’s purity thesis is the basic methodological principle of the Pure Theory of Law. Indeed, it is no exaggeration to say that virtually everything that is peculiar to Kelsen’s legal theory stems from the purity thesis. This includes Kelsen’s normativism or non‐naturalism and his polemic against various dualisms in legal science. I set out Kelsen’s position on these issues after looking at the nomenclature of purity in his writings as well as the philosophical and contextual sources of purity as he understands them.     

Defeating the Inference from General to Particular Norms*

Abstract. The author argues that in order to maintain, with the later Kelsen, that particular norms are not deducible from general norms, it is unnecessary to deny (1) that norms are propositional, (2) that norms have truth value, (3) that there are normative facts, or (4) that norms fall within the compass of logic. It is claimed that general norms, like many generalizations in science, are not, typically, unrestricted universal generalizations, but generalizations of a different kind, which have sometimes been called normic generalizations. Normic generalizations may have truth value and describe facts; and there is no obvious reason for thinking that they fall outside the compass of logic. Yet they do not deductively imply the instances which fall under them. Exceptions to a generalization of this sort need not constitute falsifying instances; in some cases, at least, they serve rather to qualify the scope or power of the generalization. The logic of such generalizations is thus not deductive. Granting that general norms are typically of this kind, we may accept Kelsen's conclusion about the non-deducibility of particular from general norms without accepting the grounds upon which he accounted for this fact.     

Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence

The modern conception of the ``Rule of Law'' entails government bylaw not men, and takes law to consist in rules known in advance. Thislatter characteristic assumes that, for the most part, the meaningof such rules is unproblematic (Hart's ``core of settled meaning''), this usually being understood as a function of ``literal meaning''.A quite different model exists in the Bible: the early rules display``oral residue'', and their meaning, I argue, is constructed in``narrative'' rather than ``semantic'' terms: instead of asking:``what situations do the words of this rule cover?'', we shouldinquire: ``what typical situations do the words of this rule evoke?''.Moreover, courtroom adjudication was not the norm, and its originalform was not based upon the application of written rules but ratherupon judicial discretion taken to have been divinely inspired. Isuggest that modern jurisprudence still retains traces of such earlierconceptions, in its account of modern law: despite their differences, both Hart and Fuller make use of narrative constructions of meaning,and Kelsen ultimately prefers the authority of the judge to the correctness of the rule he purports to apply.

     

The Inevitability of Moral Evaluation*

According to contemporary legal positivism, law claims to create obligations. In order for law to be able to create obligations, it must be capable of having authority. Legal positivism claims that for law to be capable of having authority, it only has to meet non‐moral or non‐normative conditions of authority. In this paper it is argued that law can only be capable of having authority if it also meets certain normative conditions. But if something must meet certain normative conditions in order to be capable of having authority and if it must be capable of having authority in order to be law, then it is only law if it is conceivable that it meets these normative conditions and this can only be ascertained by means of an evaluation. Therefore, legal positivism's claim that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations (the separation thesis) is incompatible with its claim that law must be able to create obligations. Further, an analysis of Hart's concept of law shows that it is not only possible that the identification of the law depends on moral evaluation, as Hart claims, but that it is conceptually necessary that it does.