It’s the 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. It’s
nothing but a pure norm, admits only a normative and formalistic method of
study, every other method being destructive of the very object of research.
That is why sociology cannot study law and the ‘science of law’ cannot take
account of social reality.
THE BASIC NORM
Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some ‘basis (Grund)’. If the separation of ‘is’ and ‘ought’ is to be maintained, that basis or ground can only be a norm, a ‘basic norm (Grundnorm)’.
Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a robber demands money from me. If I ask why I ought to hand my money over, no further reason can be found. The meaning of the robber’s act of will is merely subjective. In the second situation, a tax official demands money from me. If I ask why I ought to hand my money over, the official refers to a regulation. If I ask why I ought to obey the regulation, the official refers to a statute. If I ask why I ought to obey the statute, the (patient) official refers to the constitution. If I ask why I ought to obey the constitution, the official might be able to refer to an earlier constitution on whose authority the present constitution was created. Kelsen characterizes that earlier constitution or, if none, the present constitution as the ‘historically first constitution’, created by custom or revolution. The official’s resources end with the historically first constitution but I can still ask why I ought to obey it.
This ‘basic’ norm does not actually exist: it is only presupposed in juristic thinking as the ‘reason for the validity’ of the order. Nonetheless, for the case of a particular legal order, the particular basic norm refers to a real constitution. The acid test of the concept is a revolution: if the revolution succeeds, in the sense that the new constitution and the norms made or adopted under it are by and large effective, the jurist presupposes a new basic norm.
The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which science can understand some ought’s as constituting an order, hence as norms whether legal or moral. On the other, it is the condition on which legal science can understand the meanings of some acts of will as objective, i.e. as legal norms.
Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some ‘basis (Grund)’. If the separation of ‘is’ and ‘ought’ is to be maintained, that basis or ground can only be a norm, a ‘basic norm (Grundnorm)’.
Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a robber demands money from me. If I ask why I ought to hand my money over, no further reason can be found. The meaning of the robber’s act of will is merely subjective. In the second situation, a tax official demands money from me. If I ask why I ought to hand my money over, the official refers to a regulation. If I ask why I ought to obey the regulation, the official refers to a statute. If I ask why I ought to obey the statute, the (patient) official refers to the constitution. If I ask why I ought to obey the constitution, the official might be able to refer to an earlier constitution on whose authority the present constitution was created. Kelsen characterizes that earlier constitution or, if none, the present constitution as the ‘historically first constitution’, created by custom or revolution. The official’s resources end with the historically first constitution but I can still ask why I ought to obey it.
This ‘basic’ norm does not actually exist: it is only presupposed in juristic thinking as the ‘reason for the validity’ of the order. Nonetheless, for the case of a particular legal order, the particular basic norm refers to a real constitution. The acid test of the concept is a revolution: if the revolution succeeds, in the sense that the new constitution and the norms made or adopted under it are by and large effective, the jurist presupposes a new basic norm.
The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which science can understand some ought’s as constituting an order, hence as norms whether legal or moral. On the other, it is the condition on which legal science can understand the meanings of some acts of will as objective, i.e. as legal norms.
The theory pays far too little
attention to the circumstances under which laws are created and whether they
are recognized as authoritative and by whom.
For Kelsen, the difference between
‘is’ and ‘ought’ is simply obvious and cannot be explained. An entity may be
considered now in terms of ‘is’, that it exists or does not exist, and in the terms
of ‘ought’, that it ought or ought not to be; but the two ‘modes’ must not be
mixed together. Neither mode however has any necessary content: e.g. a legal
‘ought’ does not necessarily contain any moral ‘ought’
A positive legal order is seen as one
with a chain of authorizations addressed to organs of the state. The ‘higher’
organ cannot foresee all circumstances requiring regulation and must delegate
power, with discretion, to a ‘lower’ organ. The higher organ creates a ‘higher’
norm authorizing the lower organ to create not a particular ‘lower’ norm (in
which case there would be no point in the delegating) but a lower norm of a
certain kind and perhaps also through a certain procedure.
For instance, The Constitution of
Kenya[1]authorizes
the legislature to create statutes; later the executive organs create
regulations, which authorize lower executive organs to create lesser regulations.
Expressed more precisely: each higher norm recognizes the act of will of the
lower organ, or recognizes custom as a ‘law-creating fact’
A norm is not valid because it has a
certain content but because it is created in a certain way. In principle, it
may have no content at all; although sometimes a higher norm prescribes that
lower norms must or must not have certain contents.
Kelsen rejects both the European
doctrine that only general norms are law, which implies that judges do not make
law but only apply it, as well as the extreme American legal-realist doctrine
that only the courts create law, statute being merely a source; there is no
line to be drawn between law-creation and law-application. For this reason, a
norm considered void for example, because unconstitutional is void only when
declared so by the court of last instance. The doctrine of the hierarchy of the
legal order in short comprehends the law in motion, in its perpetually renewed
process of self-regeneration.
Custom does not fit readily into
Kelsen’s picture. He supposes that regular behaviour can give rise to a
collective will that it is right, although the subjective meaning of that act
of will can become its objective meaning only if a higher norm institutes
custom as a law-creating fact, possibly as the fundamental law-creating fact.
This way of incorporating customary
law into the picture of dynamic order avoids supposing a romantic ‘national
spirit’ that recognizes customary behavior, yet it fails to address the
problems that all philosophical positivists have with the idea of customary
law: of how an ought can arise in the first place from an is; and of how, even
then, that ought could be binding.
The validity of a positive moral or legal
norm rests upon two conditions;
That the norm shall have been posited (its
positivity) and that it shall be ‘by and large effective’ (its effectiveness).
To ask that a norm be totally effective would be absurd: a norm is posited
precisely in order to regulate conduct contrary to it. Nor is a norm valid only
when it is effective: it is valid when posited. Once a norm is valid it becomes
effective; but it loses its validity if it fails to become, or later ceases to
be, by and large effective.
Thus validity and effectiveness are not
identical, although validity depends on effectiveness or, in other language,
law (or right) is not the same as power (or might), but is dependent on it: in
this sense, ‘law is a particular order (or organization) of power’. In cases where
‘effectiveness’ means only conformity with norms, without considering the
motive for the conformity, ‘effectiveness’ has ‘a normative, not a causal,
meaning
While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general norm is actually two norms. A general norm, he says, is presented in the form: People ought to refrain from stealing; if a court has established that a person has committed a theft, that judge ought to create an individual norm stating that that person ought to be put in jail’. The latter part, Kelsen holds, is a ‘primary’ norm, directed to an organ, stating that coercion ought to be applied; the former part is a ‘secondary’ norm, also directed to the organ, stating the reason for the primary norm.
Moral norms, in contrast, are encountered as norms regulating particular behaviour rather than as norms prescribing a sanction and then the sanction is first positive, as approval, and only subsequently negative, as disapproval and often without any norm prescribing a sanction. The moral norm regulating behaviour is primary the sanctioning moral norm, if any, secondary.
Kelsen insists that morality is no part of law. Law has no moral content. He asserts that courts don’t have unfettered discretion. Existing general norms require the courts to apply them, and courts can depart from them only within the discretion that those norms allow.
While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general norm is actually two norms. A general norm, he says, is presented in the form: People ought to refrain from stealing; if a court has established that a person has committed a theft, that judge ought to create an individual norm stating that that person ought to be put in jail’. The latter part, Kelsen holds, is a ‘primary’ norm, directed to an organ, stating that coercion ought to be applied; the former part is a ‘secondary’ norm, also directed to the organ, stating the reason for the primary norm.
Moral norms, in contrast, are encountered as norms regulating particular behaviour rather than as norms prescribing a sanction and then the sanction is first positive, as approval, and only subsequently negative, as disapproval and often without any norm prescribing a sanction. The moral norm regulating behaviour is primary the sanctioning moral norm, if any, secondary.
Kelsen insists that morality is no part of law. Law has no moral content. He asserts that courts don’t have unfettered discretion. Existing general norms require the courts to apply them, and courts can depart from them only within the discretion that those norms allow.
Kelsen continues to say Logic is
applicable to legal propositions but not to legal norms. Norms cannot be true
or false, only valid or invalid, in a non-logical sense, which is also their
existence. The pure theory is not a ‘legal logic’. Where logic is applied to
legal propositions, still logical must not be confused with psychological or
political questions.
A legal order, Kelsen holds, has no gaps. He subscribes to the view that ‘whatever is not forbidden is permitted’. Whatever could have been forbidden yet is neither forbidden nor positively permitted that is, permission expressly give may be said to be negatively permitted; the individual is in that sense ‘free’. For the situation where an organ is faced with a quite unforeseen case, the legal order contains, expressly or tacitly, a norm authorizing the organ to create a new legal norm on the basis of moral and political principle; although there is no norm to apply to the case, the legal order as a whole is applicable.
A legal order, Kelsen holds, has no gaps. He subscribes to the view that ‘whatever is not forbidden is permitted’. Whatever could have been forbidden yet is neither forbidden nor positively permitted that is, permission expressly give may be said to be negatively permitted; the individual is in that sense ‘free’. For the situation where an organ is faced with a quite unforeseen case, the legal order contains, expressly or tacitly, a norm authorizing the organ to create a new legal norm on the basis of moral and political principle; although there is no norm to apply to the case, the legal order as a whole is applicable.
LAW, STATE AND INDIVIDUAL
The pure theory ‘is objectivistic and universalistic’, aiming ‘to conceive in each part of the law the function of the total law’. Consequently it cannot view the legal order from the standpoint of the individual legal subject and its interests. Thinking in terms of rights must be reduced to thinking in terms of the whole legal order. But this is to be done sociologically, for norms regulate not persons as such but their behaviour. Accordingly, a ‘legal relation’ lies not between persons as such but between ‘the behaviour of two individuals as defined by legal norms’, i.e. as content of legal norms.
Kelsen speaks of ‘the state’ in a broad and a narrow sense. The state in the broad sense is defined by territory and population. If one’s eye is on human behaviour, one finds a range of legal orders. In some, general legal norms are created by a central legislative organ, so that the legal order may be called ‘relatively centralized’. The idea of its centralization refers only to its sphere of validity: for it may be valid over fragmented territory or differently for different sectors of the population (e.g. as to ‘language, religion, race, sex or profession’), or not effective uniformly.
The narrow sense is taken from state legal orders, as ‘the bureaucratic machinery of officials, headed by the government’ (i.e. the executive power). This may be seen as a ‘partial legal order’ within the total legal order. Thus one may speak of the total legal order exercising ‘direct state administration’, which is to say jurisdiction, and the executive ‘indirect state administration’, which is essentially, as conformity with the former’s law, a mode of transaction. Here Kelsen acknowledges the interventions by the modern state (in the narrow sense) in the ‘private’ sphere, as well as the bureaucratization of both public and private administration.
‘The state’ in either sense, however, must be seen as the behaviour of real individuals. Consequently, rights and duties ‘of the state’ are to be understood as rights and duties of officials. Since they are officials only as persons acting with legal authority, every state is by definition ‘governed by law’, i.e. is a Rechtsstaat. Therefore the expression Rechtsstaat is better confined to those states that may be described as also committed to the ideas of democracy and legal security.
In traditional theory, just as the Christian religion presents ‘God’ as both creator-ruler and immanent in the world, the state has ‘two sides’ and is ‘self-obligating’: that is, it appears on one side as personified author of the legal order, on the other as a legal subject, obligated by the legal order. With the decline of ‘a religious-metaphysical justification of the state’, this theory, that of the Rechtsstaat, performs the inestimable ideological service of presenting the state’s self-justification through law. One of the pure theory’s main contributions, in Kelsen’s eyes, is to have unmasked this ideology.
One reason for Kelsen to understand ‘the state’ primarily under its international-law concept is that this permits him to identify the state with the legal order, independently of the concept of the state in the narrow sense, which attaches to the public-law aspect of the legal order. Indeed, it permits him radically to relative the distinction between public and private law.
STATE AND INTERNATIONAL LAW
Public international law falls within Kelsen’s definition of law. It is an order of norms: a basic norm establishes the customary behaviour of states as a law-creating fact; from custom arise norms regulating the behaviour of states in general. One of these norms is pacta sunt servanda (agreements shall be kept to), according to which treaties are made. Some treaties set up international organizations, such as the International Court, which issue further norms. Thus there is a hierarchy of norms. The norms are coercive, in that breach is by and large visited with a sanction, whether reprisal or war. Since the bellum iustum (just war) principle is universally accepted through treaty, war conforming to that principle is a sanction.cl
To say that international law authorizes or obligates states means that it authorizes or obligates individuals indirectly, through the state legal order just as that order authorizes or obligates individuals directly through the partial legal order which is a corporation. The international legal norm is however ‘incomplete’ in that it specifies only the authorization or obligation, leaving to the state legal order identification of the individual to carry it out; that done, the individual’s behaviour is attributed to the state, as the state’s behaviour. In the same way, a state commits an international delict when it authorizes or obligates an individual to do something in contravention of international law. That sanctions are exerted against all members of the state, even if they were not involved in the delict, shows that state members are collectively and absolutely liable for international delicts. There is however a tendency for international law to obligate individuals directly, such as war criminals. In these exceptional cases, collective and absolute liability gives way to individual liability with fault.
To understand all law in one system that is, from one and the same standpoint as one closed whole. This postulate excludes a dualist view of the relationship between state and international legal order. It permits only the two monist views: either that international law is ‘a legal order delegated by, and therefore included in, the state legal order’ or that it is ‘a total legal order comprising all state legal orders as partial orders, and superior to all of them. As late as 1941, Kelsen believed that this entailed the primacy of international law, to form with the state legal orders ‘one uniform, universal legal system.
As it is the task of natural science
to describe its object reality in one system of laws of nature, so it is the
task of jurisprudence to comprehend all human law in one system of rules of
law.’ He had not yet distinguished clearly between legal norm and legal
proposition; if the legal proposition is formulated in terms independent of its
subject matter, unity of theory does not entail unity of subject matter.
However, international law has never been so effective and by the end of World
War II. Kelsen preferred the more realistic position that the alternative
monistic views are equal in the eyes of science. Yet, politically, he
maintained the inter-war theme of ‘peace through law’ and a frank distaste for
the state-centered outlook.
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