Abstract
If the presence of fiction in natural sciences is sufficiently known and accepted, the same doesn’t seem to be the case when it comes to legal science. The presence of fictions in Law is unquestioned and can be traced since Roman law, even if its legitimacy remains a matter of great divergence among critics. However, the legitimacy of the use of fictions by natural sciences or Philosophy is attested by famous examples of thought experiments, for instance. Considering this context, we will analyze the use of fictions made by a special kind of science dealing with the regulation of our behavior, namely legal science.
Our aim is to analyze the use of fiction by the legal science under the light of the legal theory proposed by Hans Kelsen (1881–1973), especially concerning his proposal that the legitimization of the whole positive legal system is based on a fiction, called the Basic Norm (Grundnorm). The difference, we sustain, is that this “norm” must be seen as a methodological or scientific tool, and not as an ordinary norm among others in the legal system. We will try to elucidate how can a fiction display such an important function and still preserve the “principle of purity” of the kelsenian legal theory.
This text is the outcome of the work as a Post-Doc researcher in the Universidade Federal de Santa Maria and funded by the program PNPD-CAPES.
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Notes
- 1.
This “confusion” is linked to the denial of the duality of “Is” and “Ought”. For a review on several classical cases, see KELSEN, H. General theory of Norms, Oxford University Press 2011 [1979], pp. 63–82.
- 2.
Cf. Spaak, T. “Kelsen and Hart on the Normativity of Law”. In: Perspectives on Jurisprudence: Essays in Honour of Jes Bjarup. Peter Wahlgren, ed., pp. 397–414, 2005.
- 3.
Cf. van Roermund, B. “Authority and Authorization”. In: Law and Philosophy, Springer, Vol. 19, No. 2, pp. 201–222, Mar. 2000.
- 4.
Even if the norm in question is not mandatory, but concerning permissions, empowerment or derogation, the “ought” element is always preserved.
- 5.
Kelsen, H. General Theory of Norms. Oxford University Press, New York 2011 [1979], p. 2.
- 6.
Bobbio, N. Teoría General del Derecho. Santa Fé de Bogotá – Colombia: Editorial Temis, 1997.
- 7.
What is implicit in this conception is that there is no place to logical treatment in the inner domain of Law, i. e., in the production or interpretation (decision) of legal norms.
- 8.
By this approach, an objective command is not only the psychic event of the expression of a will. This can be seen in the case of a testament, for instance. In a valid testament, the subjective act of will of the person in question obtains its objectivity trough the Law: once it is legally legitimated, the command of the person in question will remain beyond his own existence, when he will no longer be able to express his will. This demonstrates the independency of the compulsoriness of the command from the subjective act of will.
- 9.
This example can be found in various passages of KELSEN, H. “Théorie Pure du Droit”, 2e traduction par Ch. Eisenmann, Dalloz, Paris 1962.
- 10.
Actually, what turns this norm into a binding norm is the fact of assuming the existence of the Basic Norm in relation to such a normative system. We come to this issue later in this text.
- 11.
HART, H. “Visita a Kelsen”. In: Lua Nova. No. 64. São Paulo Jan./Apr. 2005 [1963].
- 12.
This aspect is essential to our future analysis of the Basic Norm as an element of legal science, and not of Law itself.
- 13.
BOBBIO, N. Direito e Poder. Editora Unesp, São Paulo, 2008, p. 58. This quotation was a personal translation of a Portuguese version of this book.
- 14.
Maybe it would be more correctly said that the Judge doesn’t create any norm, he only applies the norms present on the system. But it won’t be entirely wrong to say that particular or individual norms are actually created by the Judge.
- 15.
If we were to (wrongly) give some formulation to the Basic Norm, for didactic purposes let’s say, it would sound like “We should do as the first Constitution of this Country tells us to do”.
- 16.
Student Author. Harvard Law Review, Vol. 115, No. 8, pp. 2233–2234, Jun. 1918.
- 17.
In his previous writings (KELSEN, H. “Théorie Pure du Droit”, 2e traduction par Ch. EISENMANN, Dalloz, Paris 1962), Kelsen tended to see the Basic Norm not as a fiction, but as a hypothesis. This approach was abandoned because Kelsen got aware from the fact that the “existence” of the Basic Norm would never be able to be verified. Contrary to hypotheses which are constructed with the very aim to be lately confirmed or falsified, the Basic Norm is presupposed with the consciousness of its impossibility of ever being verified.
- 18.
Vaihinger, H. The Philosophy of “As-If”: a system of the theoretical, practical and religious fictions of mankind. London, Routledge & K. Paul, 1965 [1911].
- 19.
We must remember that the first aim in using a fiction in science is always its practical utility. Loewenberg (Review, The Journal of Philosophy, Psychology and Scientific Methods, Vol. 9, No. 26 (Dec. 19, 1912), p. 717) explains clearly the notion of fiction according to Vaihinger’s theory: “Fictions, in Vaihinger’s usage, are not identical with figments, such as centaur or fairy, nor are they hypotheses capable of verification. They are deliberate devices ( Kunstgriffe ) on the part of thought for the practical purpose of successful orientation in and perfect control over the environment. Theoretically they are absolutely valueless. Applied with a knowledge of their fictitious character, they will lead to the intended practical results.”
References
Bobbio, N.: Teoría General del Derecho. Editorial Temis, Santa Fé de Bogotá (1997)
Bobbio, N.: Direito e Poder. Editora Unesp, São Paulo (2008)
Hart, H.: Visita a Kelsen. In: Lua Nova. No. 64. São Paulo Jan./Apr. 2005 (1963)
Kelsen, H.: Théorie Pure du Droit. Translation: EISENMANN, C. Dalloz, Paris (1962)
Kelsen, H.: General Theory of Norms. Oxford University Press, New York 2011 (1979)
Loewenberg, J.: Reviewed work(s): Die Philosophie des Als Ob. System der Theoretischen, Praktischen und Religiösen Fiktionen der Menschheit auf Grund Eines Idealistischen Positivismus. Mit einem Anhang über Kant und Nietzsche by H. Vaihinger. J. Philos. Psychol. Scientific Methods 9(26) (Dec. 19, 1912). Published by: Journal of Philosophy, Inc. Stable URL: http://www.jstor.org/stable/2013048 (1912)
Spaak, T.: Kelsen and Hart on the normativity of law. In: Wahlgren, P. (ed.) Perspectives on Jurisprudence: Essays in Honour of Jes Bjarup (2005)
Student Author.: Harvard Law Rev. 115(8) 2233–2234, June (1918)
Vaihinger, H.: The Philosophy of ‘As-If’: A System of the Theoretical, Practical and Religious Fictions of Mankind. Routledge & K. Paul, London 1965 (1911)
van Roermund, B.: Authority and authorization. In: Law and Philosophy. Springer, Vol. 19, No. 2, pp. 201–222, Mar. (2000)
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Sievers, J.M. (2016). Fictions in Legal Science: The Strange Case of the Basic Norm. In: Redmond, J., Pombo Martins, O., Nepomuceno Fernández, Á. (eds) Epistemology, Knowledge and the Impact of Interaction. Logic, Epistemology, and the Unity of Science, vol 38. Springer, Cham. https://doi.org/10.1007/978-3-319-26506-3_25
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