Kelsen and his Pure theory of Law

Author: Sushant Rochlani

At the age of three, Kelsen’s family, of German-speaking, Jewish and middle-class origins, moved to Vienna, where Kelsen pursued his academic studies. In 1906 he was awarded a doctorate in law, even though his lifelong interests were largely concentrated in the humanistic and classical fields (philosophy, literature, logic, but also mathematics and natural science). His passion for knowledge in these areas however clearly exercised an important influence on much of his work throughout his life.

Although Kelsen was resolutely agnostic, he converted to Catholicism in 1905 in an attempt to avoid integration problems. His particular concern was to ensure that his ambition to lecture at university would not be jeopardized by his family’s religious background. Unfortunately, this solution did not prove to be very useful. Indeed, Kelsen’s Jewish ancestry caused him serious difficulties on many occasions, right until his decision to emigrate. The year 1905 was also notable for the publication of Kelsen’s first book, Die Staatslehre des Dante Alighieri. In 1908, he attended a seminar in Heidelberg led by Georg Jellinek, an authority in public law. In 1911 Kelsen qualified as a teacher in public law and philosophy of law at the University of Vienna with his first major work, Hauptprobleme der Staatsrechtslehre, a 700-page study on the theory of public law. In 1914 he established and edited the Austrian Journal of Public Law (three volumes).During World War One Kelsen acted as adviser to the military and justice administration as well as having the politically sensitive role of legal adviser to the war minister. In 1918 he became associate professor of law at the University of Vienna, and in 1919 he was made full professor of public and administrative law. The next ten years constituted a highly rewarding and stimulating period of teaching and research.
Legal System as a System of Norms
The distinction between proposition of science and proposition of law is the starting point of Kelsen’s reasoning. Kelsen says that in a world of facts there are causal relations i.e., relation of cause and effect. Legal science is not a natural science. Kelsen says, ‘The principle according to which natural science describes its object is causality, the principle according to which the science of law describes its object is normativity’. In natural science we say ‘If ‘A’ is then ‘B’ is’. In legal science we say ‘If ‘A’ is then ‘B’ ought to be’. The purpose of pure theory of law is to know its subject i.e., what law is and not what law ought to be. Then he raises the question as to where to locate the ‘is’ of law, in the realm of facts or in the realm of ideas.
According to Kelsen law and fact are separate realms. Kelsen says that law is a system of norms and norm is a meaning assigned to certain acts by law. ‘Law is the meaning of an act by which certain behaviour is commanded, remitted or authorized.’ Norms are ‘ought’ statements, prescribing certain modes of conduct. There can be different meaning assigned to an act by different persons. Meaning can be both subjective and objective. The subjective meaning may or may not be in consonance with the objective meaning which is the legal meaning. A norm is a legal norm only if its subjective meaning is same as its objective meaning. Legal norms, by contrast, are prescriptive (normative) entities. They lack truth-value, though they can be valid or invalid.
According to Kelsen law is a social phenomenon and it governs human behaviour . Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will. They are products of deliberate human action. He was a strong believer in Hume’s distinction between ‘is’ and ‘ought’ and in the impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus he believed that the law, which is comprised of norms or ‘ought’ statements, cannot be reduced to those natural actions and events which give rise to it. Kelsen ascribed a legal ‘ought’ to norm-creating acts by ultimately presupposing it. Since ‘ought’ cannot be derived from ‘is’ and since legal norms are essentially ‘ought’ statements, there must be some kind of an ‘ought’ presupposition at the background, rendering the normatively of law intelligible. As legal norms are always created by acts of will such an act can only create law if it is in accord with another ‘higher’ legal norm that authorises its creating in that way. This ‘higher’ legal norm is only valid if it has been created in accordance with yet another even ‘higher legal norm that authorises its enactment.’ Kelsen argued that ultimately one must reach a point where the authorising norm is no longer the product of an act of will, but is simply presupposed and this is what he called the Basic Norm .
Kelsen is thus interested in developing a theory of law as an “ought,” as a “science of mind.” But he also wants to free his “science of law” from methodological dependence on other “sciences of mind.” Thus, in the first page of his most famous book, The Pure Theory of Law (1934), he says:
“It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine science, a science of mind [Geistes-Wissenschaft].”
The Basic Norm and Its Presupposition
As a “science of mind,” therefore, law seeks the realm of the “ought.” Kelsen is interested in a basic principle or norm, a basic “ought,” that will actually be both descriptive and prescriptive for legal discourse. The word “norm” can mean two things: either descriptive regularity (“You fit the norm”) or prescriptiveness (“You must obey the social norms”)
Kelsen will use the word “norm” in the prescriptive sense. When he uses the word “normative,” he means something that is prescriptive, something that ought to be done.
What Kelsen is trying to do in developing or identifying a basic norm is quite ambitious. In the tradition of Hegelian philosophy, which wanted to place all cultures in a grand overarching philosophy of history according to the principle of freedom, Kelsen wants to identify a basic legal principle which will ultimately include or define the legal structures of all cultures. The Grundnorm or Basic Norm is a statement against which all other duty statements can, ultimately, be validated.
The presupposition of the Basic Norm as the condition of validity of legal norms thus marks Kelsen’s theory as ‘pure’, and distinguishes it from other theories in the Legal Positivist tradition. Basic norm is unique because it is not man-made and it is above positive law in legal authority. Kelsen wants to identify a basic legal principle, which will ultimately include or define the legal structures of all cultures. The Grundnorm or Basic Norm is a statement against which all other duty statements can, ultimately, be validated. The Basic Norm is ultimately a sort of act of faith–it is the belief in a principle beyond which one cannot go and which ends up being the foundational principle for all subsequent legal statements.
Kelsen attributed the basic norm with two main explanatory functions. He said that it explains both the unity of a legal system and the reasons for the legal validity of norms.
According to Kelsen the basic norm is that ‘constitution ought to be obeyed.’ This does not mean that constitution is the basic norm. it is the idea that the constitution ought to be obeyed that is the basic norm. The constitution derives its validity is from the basic norm… This basic norm is responsible for the unity of the legal order. There must be at least one principle by which people decide on the form of a legal system that will govern them and the basic norm is a plausible account of this fundamental rule.
The Basic norm is pre-logical i.e., it is not established logically. There are no other major premises from which the Basic norm can be arrived at. It is also called as meta-logical or logical transdental. It is not metaphysical transdental but epistemological. The Kelsenite Basic norm is a priory and the first principle of legal science. It is pre-supposed or pre-assumed but it is not arrived at arbitrarily. The Basic Norm does not derive its validity from anywhere. According to Kelsen, a legal scientist is not concerned with the question that wherefrom the Basic norm came from. A legal scientist is concerned with the form and not the substance.
As opposed to moral norms which, according to Kelsen, are typically deduced from other moral norms by syllogism (e.g., from general principles to more particular ones), legal norms are always created by acts of will. Such an act can only create law, however, if it is in accord with another ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher’ legal norm, in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm. More concretely, Kelsen maintained that in tracing back such a ‘chain of validity’ (to use Raz’s terminology), one would reach a point where a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution.
The Basic Norm is ultimately a sort of act of faith–it is the belief in a principle beyond which one cannot go and which ends up being the foundational principle for all subsequent legal statements. You cannot “go beyond” the Grundnorm because it is an unprovable first step (sort of like the “democracy is best because it is democracy” approach of 1930s-1950s American jurisprudence). Ultimately it appears that the Grundnorm for Kelsen is a belief that one’s respective legal system ought to be complied with.
Validity of Norms
Kelsen conceives law as a system of norms hierarchically arranged. The validity of a norm is not to be derived from any ‘is’ of fact outside the law, but from some other norm standing above it imparting validity to it . The validity of a norm is ascertained with reference to its authorizing norm, which confers a power to create it and may also specify conditions for its exercise. The reason for the validity of a norm can only be the validity of another norm. A norm, which represents the reason for the validity of another norm, is figuratively spoken of as a higher norm in relation to a lower norm. A particular norm is therefore authorized if it can be subsumed under a more general norm. In any legal order, a hierarchy of norms is traceable back to its basic norm. This basic norm need not be the same in every legal order, but there will always be a basic norm of some kind. All norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order—it is their common reason of validity. The fact that a certain norm belongs to a certain order is based on the circumstance that its last reason of validity is the basic norm of this order. It is the basic norm that constitutes the unity in the multitude of norms by representing the reason for the validity of all norms that belong to this order.
The norm system that presents itself as a legal order has essentially a dynamic character. A legal norm is not valid because it has certain content, that is, because its content is logically deducible from a presupposed basic norm, but because it is created in a certain way—ulti¬mately in a way determined by a presupposed basic norm . A legal scientist has to see whether the individual norm fits within the legal system or not. It is not the content of the norm that determines whether it fits in the legal system but the form and the process by which a norm is created determines this. Hence, a legal norm cannot be logically deduced from the basic norm though it is logically valid according to the basic norm. For this reason alone the legal norm belongs to the legal order whose norms are created according to this a basic norm. Therefore any kind of content might be law. The norms of a legal order must be created by a specific process.
Kelsen treats this validity of legal norms as tempro-spatial validity i.e., norms are valid for particular time and space. No legal norm is beyond time and space.
Kelsen thus attributed two main explanatory functions to the Basic Norm: it explains both the unity of a legal system and the reasons for the legal validity of norms. Apparently, Kelsen believed that these two ideas are very closely related, since he seems to have maintained that the legal validity of a norm and its membership in a given legal system are basically the same thing. Furthermore, Kelsen argued that every two norms which derive their validity from a single Basic Norm necessarily belong to the same legal system and, vice versa, so that all legal norms of a given legal system derive their validity from one Basic Norm. It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. Generally speaking, in spite of the considerable interest in Kelsen’s theory of legal systems and their unity that derives from a single Basic Norm, critics have shown that this aspect of Kelsen’s theory is refutable. Although it is certainly true that the law always comes in systems, the unity of the system and its separation from other systems is almost never as neat as Kelsen assumed.
The Normativity of Law
The other aspect of validity of legal norm is that the validity of a legal norm is not dependent upon its effectiveness. The effectiveness of a legal order is a conviction, not a reason, of the validity of the Grundnorm and of any individual norm. There must not be a total disregard of the Grundnorm; but there need not be universal adherence to it. It is necessary that it should command a minimum effectiveness. When a Basic norm ceases to derive a minimum support, it ceases to be the basis of the legal order, and any other proposition which does obtain support will replace it. Such a change in the state of affairs is said to amount to revolution in law. At what point can it be said that the laws of a rebel regime are efficacious? The answer to this question is a matter of political and military reality, not a matter of jurisprudence.
Kelsen often dwells upon the analogy between law and religion, is more limited than it first appears. The normativity of religion, like that of morality, does not depend on the actual obedience of their respective subjects. For those, for example, who presuppose the basic norm of Christianity, the latter would be valid even if there are no other Christians around. But this, as Kelsen explicitly admits, is not the case with law. The validity of a legal system partly, but crucially, depends on its actual practice: “A legal order is regarded as valid, if its norms are by and large effective.” Furthermore, the actual content of the Basic Norm depends on its ‘effectiveness’. As Kelsen repeatedly argued, a successful revolution brings about a radical change in the content of the Basic Norm. At this point, Kelsen admits, “one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government.”
This is very problematic, however, since it raises the suspicion that Kelsen has violated his own categorical injunction against deriving ‘ought’ from ‘is’. Kelsen was not unaware of the difficulty. In the first edition of the Pure Theory of Law, he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory. Therefore, the changes in the basic norm which stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law. The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law, and this entails that there is only one Basic Norm in the entire world, namely, the Basic Norm of public international law. Although this solution is repeated in the second edition of the Pure Theory of Law], Kelsen presented it there with much more hesitation, perhaps just as an option which would make sense. It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and anachronistic.
So, the question again arises, how ‘pure’ Kelsen’s theory really is, if it is conceded that the content of the Basic Norm is basically determined by social practice. The answer depends on how we construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to have been careful to distinguish between the role of the Basic Norm in answering the question of how we identify the law as such, and in answering the question of law’s normativity. An answer to the question of what counts as law or as law creating acts in a given community cannot be detached from practice, namely, social conventions. The social conventions prevalent in any given community determine, ultimately, what counts as law in that community. On the other hand, Kelsen is right to insist that social conventions, by themselves, could not explain the ‘ought’ which is inherent in law as a normative system. Such an ‘ought’ cannot be constituted by the conventions. Social conventions can only determine what the practice is, and how one would go about in engaging in it; conventions cannot determine that one ought to engage in the practice.
Thus, it would seem that Kelsen’s anti-reductionism is only partly successful. The explanatory role of the Basic Norm must be confined to the normativity of law. But in order to explain what counts as law and how law is identified and distinguished from other normative practices, the Basic Norms is not sufficient; one must refer to the social conventions which prevail in the relevant community.