Hans Kelsen Interview at Kelsen Tours Ltd (The following exchange takes place at the office of a travel agent soon after a democratic government of a holiday island country has been ousted by a military coup whose leaders have promulgated a constitution and effectively taken over all aspects of government.) Traveller: Are you saying that I ought to pay the new airport tax on arrival? Agent: That s the new regulation. Traveller: Yes, I know that. But do you mean that I ought to pay? Agent: Well, they won t let you through unless... Traveller: I am not asking you for predictions. Ought I to pay? Agent: Morally, of course, given the undemocratic and unjust nature of the regime... Traveller: I am not interested in your subjective political opinion. Answer my question. Agent: On the assumption that they were entitled to launch the coup and promulgate their constitution, you ought to pay. Revolutionary s dilemma Joe: So I drive the car with the bomb down the High Street. Where do I go next? Bill: Straight on the traffic lights. Whatever you do, don t turn right before the cinema, or you ll make yourself conspicuous. Joe: Why? Bill: Because turning right there is illegal. Ouch! Why are you hitting me? Joe: You said illegal. That means their regulations and their constitution ought to be obeyed. Bill: That isn t what I meant to say! Joe: It is the meaning of what you said. Haven t you read your Kelsen? Just watch your language in future! 1. Kelsen s life (1881-1973) - 1 - Harris 64-65 Prague, Vienna, Jewish family 1906 doctorate (Dante) 1911 habilitation: Main Problems in the Theory of Public Law (Hauptprobleme der Staatsrechtslehre) 1919 professor 1920 Austrian constitution, judge at the CC until 1929 1930 Cologne Prague, Geneva escape 1940: US, 1942: Harvard 1945: Berkeley, political science 2. Philosophical background Just as everything King Midas touched turned into gold, everything to which law refers becomes law (Kelsen) The natural law doctrine undertakes to supply a definitive solution to the eternal problem of justice, to answer the question as to what is right and wrong in the mutual relations of men. The answer is based on the assumption that it is possible to distinguish between human behaviour which is natural, that is to say corresponds to nature because it is required by nature, and human behaviour which is unnatural, hence contrary to nature and forbidden by nature. This assumption implies that it is possible to deduce from nature certain rules which provide an altogether adequate prescription for human behaviour Nature is conceived of as legislator, the supreme legislator. (Kelsen, What is Justice?, 1957)
neo-kantian: 1. Ought vs. Is, 2. a priori vs. a posteriori, 3. method creates the object of analysis objectivity: politics (and morality) vs. epistemology (theory of knowledge) purity (Reine Rechtslehre): 1. sociology and 2. morality (natural law) [Kelsen differentates between three areas: (a) facts of sociology or natural sciences [ Is ], (b) norms [ Ought ]: (b.1) moral norms, (b.2) legal norms. He is dealing only with b.2, and he wants to get rid of (b.1) and (a) in legal science.] positivism; positive law: created by deliberate human action (act of will) (as opposed to act of cognition) a middle way between Natural Law s dogmatism, and Positivism s reduction of law to the social sciences 3. Basic question and audience Tatjurist vs. Erkenntnisjurist how is legal science possible? 4. The legal order law as an interpretative scheme: an anarchist, for instance, who denied the validity of the hypothetical basic norm of positive law [...], will view its positive regulation of human relationships (such as property, the hiring contract) as mere power relations (Kelsen) 4.1 Basic elements: The norms Kelsenian norm vs. Austinian command ( depsychologised command ; objective vs. subjective) Rechtssatz (rule of law, formulated by the science of law) and Rechtsnorm (legal norm): description vs. prescription coercion 4.2 Hierarchy of norms Stufenbaulehre (doctrine on the hierarchical structure of the legal order, or literally step structure doctrine ): Adolf Merkl (another member of the Vienna School of Legal Theory, i.e. follower of the Pure Theory of Law) according to condition of validity, chain of validity (Raz s terminology) an individual norm (e.g. a judgment) is valid only because its validity can be derived from a valid ordinance, which is, again, only valid because it corresponds to the statutes; and a statute has its validity from the constitution; the constitution itself if it was produced legally (i.e. according to the law) from the previous constitution, and so on until the historically first constitution. The historically first constitution can be recognized by its illegal (i.e. unlawful) way of production. Hypothetic basic norm constitution (constitution in terms of positive law) statutes ordinances judicial decisions, administrative acts, private legal transactions (e.g. contracts) physical executive acts (acts of compulsion or coercive acts). The latter (i.e. coercive acts) are not considered as part of the legal order, since do not comprise norms, only execution of a norm (i.e. an is ) - 2 -
implications and characteristics: 1. First, a high level of autonomy inherent in the legal order that is obtained in the way that law regulates its own creation and validity ( self-creation of law ). 2. Second, every level of the hierarchy comprises creation and application of law at the same time (except for the levels of the basic norm and the physical execution, since the former means only legislation, while the latter means only application), i.e. all legal acts have a double legal appearance. They are Janusfaced. Legal acts are thus, to a certain extent, always objectively determined by law, but they depend also, to a certain degree, on the subject of the law-creating/lawapplying organ. This freedom of the law-creating/law-applying organ becomes less and less on the way from the hypothetic basic norm to the physical coercive act, as the acts become more and more concrete and individualised, but the freedom of decision (even if less and less) still remains. The autonomous and heteronomous determinants are, then, present in both creation and application of law at the same time. Therefore, an absolute opposition of creation and application of law is inadequate, since they differ in degree but not in kind. 3. Third, it has to be mentioned that the Stufenbaulehre explains more than do traditional conceptions of the hierarchy of norms, as it explains not only the general norms but also the individual acts (individual norms in the terminology of the Pure Theory of Law) like judicial decisions and the physical executive acts. 4. Fourth, it is a new feature of the Stufenbaulehre as opposed to previous conceptions of the hierarchy of norms, that it does not only identify the hierarchy, but also gives criteria ( test ) for its identification ( the norm which regulates the creation of the other norm is higher in the ranking ). 5. And lastly, its most important feature (its virtue, according to some) is that it gives a dynamic approach to the legal order instead of the static one ( In what system do the norms exist? ), i.e. it answers the question how norms are created. other hierarchies (i.e. not according to the condition of validity but e.g. according to derogatory power or primacy in application) 4.3 The Grundnorm hard to understand, Kelsen himself changes often his formulations constitution in a legal-logical sense vs. constitution in a positive legal sense regressus ad infinitum, economy of thought [Denkökonomie], Ockham s razor not from Is, not from Natural Law: so just presupposed hypothesis: the whole legal order: The Pure Theory of Law (as opposed to more oldfashioned positivism) does not say anything about the validity of norms in concrete legal orders; it regards its object of knowledge simply as if it were valid law. The basic norm is therefore only an epistemological postulate: It allows to show, to describe effective coercive orders as normative ones, or, more precisely, as if they were normative orders, although a science cannot decide this. (Walter) it explains both 1. the unity of a legal system and 2. the reasons for the legal validity of norms The function of the basic norm is [...] to make it possible to consider the subjective meaning of the law-creating acts which is an ought as their objective meaning, and thus as objectively valid norms. (Kelsen, Reply to Stone, 1143) content: Coercion is to be applied under certain conditions and in a certain way, namely, as determined by the framers of the first constitution or by the authorities to - 3 -
whom they have delegated appropriate powers. or The historically first constitution has to be obeyed. efficacy: by and large effective (i.e. it is obeyed): A legal order is regarded as valid, if its norms are by and large effective (that is, actually applied and obeyed). (Kelsen) successful revolution: 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. (Kelsen) Kelsen: there is no legal order that is objectively obligatory per se. Supposition of the basic norm is in fact an act of legal self-obligation by the legal scholar, i.e. normativity is not grounded as generally obligatory, but it depends on individual decisions. Individuals can reject or accept the claim of effective coercive orders to be legal orders. In the first case, they regard norms only as conglomerates of structures of power, as mere expressions of the factual situation (anarchist); their objective validity is recognized only in the second case. According to Kelsen, every legal approach is based on this latter hypothesis: Consider, for example, the analogy of a structured game, like chess. What chess is, and how one should play the game, are determined by its constitutive rules or conventions.... The normativity of the game [i.e. the ability of the game to motivate us to follow its rules A.J.] is conditional; it depends on a prior reason, or commitment, to play the game. We cannot say, for example, that one ought to move the bishop diagonally unless we assume that the agent wants to play chess. The fact that the rules of chess require the players to move the bishop diagonally is not, in itself, a reason for doing so, unless, again, it is assumed that it is chess that one wants to play. Now, it is precisely this kind of assumption that the Basic Norm is there to capture. Just as the normativity of chess could not be explained without presupposing, as it were, that the players want to engage in that particular game, so the normativity of law must be premised on the Basic Norm. (Andrei Marmor) Grundnorm and Hart s rule of recognition: ought or is ; validity of Grundnorm 5. Further theses it is not the State that creates legal order ; the state itself is of legal nature the distinction between public and private law is useless for legal theory the concept of person is basically a complex of norms subjective right (subjektives Recht) is to be derived from objective law (objektives Recht) 6. Constitutional law Stufenbaulehre: the theoretic ground for constitutional control (judicial review of statutes): Emphasizing the applicative character (Rechtsanwendungscharakter) of the setting of norms (and of the legislation in particular), the Stufenbaulehre also supported the possibility of judicial control of the legislative. It has thereby set the theoretical grounds for constitutional control and contributed thus to the development of rule of law (Rechtsstaatlichkeit). By acknowledging the legal nature of general internal policies of the state administration, Stufenbaulehre was of great assistance to democracy and particularly to a democratic administration. Democratic administration means namely administration bound by statutes, since statutes are expressions of the will of the - 4 -
people. If we acknowledge the legal nature of general internal policies of the state administration, then we make a judicial review of these policies possible, so we can force the state administration more efficiently to abide the laws of the legislature. Stufenbaulehre also means the rejection of traditional theories of separation of powers, where there are three powers of equal position. According to the Stufenbaulehre, the two other powers (executive and judiciary) are similarly subordinates to the legislative that expresses democracy. This finally means that there are only two powers (legislative and implementing powers; but inside of the latter executive and judiciary are acting separately). The Stufenbaulehre provided thereby the conceptual framework and a legal legitimacy for parliamentary democracy. This new configuration of powers may be called with the words of Öhlinger step structure of branches of powers (Stufenbau der Staatsfunktionen). 7. International law If there should be two actually different systems of norms, mutually independent in their validity both of which are related to the same object (in having the same sphere of validity), insoluble logical contradiction could not be excluded. The norm of one system may prescribe conduct A for a certain person, under a certain condition, at a certain time and place. The norm of the other system may prescribe, under the same conditions and for the same person, conduct non-a. This situation is impossible for the cognition of norms. (Kelsen) monism and dualism: following from the neo-kantian method sovereignty ( is and ought ): just norms Kelsen s Stufenbau (literally, step construction ) of positive international law proceeds as follows: customary international law (including the principle pacta sunt servanda) international treaty law decisions of international institutions primacy of international law as a political choice bellum justum primitive legal order: 1. collective responsibility and 2. self-help 8. Political philosophy pacifism, liberalism democracy (formalistic and neutral) and relativism Literature H Kelsen, The Pure Theory of Law and Analytical Jurisprudence, Harvard Law Review 1941, 44. H Kelsen, What is Justice?, UC Berkeley Press, 1957 H Kelsen, General Theory of Law and State (1945) Russell & Russell 1961. H Kelsen, Professor Stone and the Pure Theory of Law, Stanford Law Review, 1965, 1128. H Kelsen, Pure Theory of Law (second edition of his Reine Rechtslehre, 1960), UC Berkeley press, 1967. H Kelsen, Introduction to the Problems of Legal Theory (first edition of his Reine Rechtslehre, 1934) Clarendon 2002. - 5 -
B Bix, Jurisprudence: Theory and Context, Sweet & Maxwell 2003, 55-64. R Cotterrell, The Politics of Jurisprudence, LexisNexis UK 2 nd ed. 2003, 101-112. MDA Freeman, Lloyd s Introduction to Jurisprudence, Sweet & Maxwell 7 th ed. 2001, 255-330. JW Harris, Legal Philosophies, OUP 2005, 64-82. A Jakab, Kelsen s Doctrine of International Law between Epistemology and Politics, Austrian Review of International and European Law (ARIEL) 2004, 49. A Jakab, Problems of the Stufenbaulehre. Kelsen s Failure to Derive the Validity of a Norm from Another Norm, Canadian Journal of Law and Jurisprudence, 2007, 35. A Marmor, The Pure Theory of Law, Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/lawphil-theory/) (2002) T Öhlinger, Der Stufenbau der Rechtsordnung. Rechtstheoretische und ideologische Aspekte, 1975. J Raz, Kelsen s Theory of the Basic Norm, The American Journal of Jurisprudence, 1974, 94. R Walter, Der gegenwärtige Stand der Reinen Rechtslehre, Rechtstheorie, 1970, 69. - 6 -