Abstract
In American legal philosophy—even if one narrows one’s focus to careful consideration of the sub-category, American analytical legal philosophy—the ideas of Hans Kelsen are generally ignored. And on the rare occasions when Kelsen’s ideas are not ignored, they are almost always discussed quickly, and, more often than not, erroneously. Part I of this paper gives examples of Kelsen’s works being overlooked, sample misreadings by prominent theorists, and considers some standard explanations for this indifference and ignorance. Part II turns to some more subtle (and controversial) questions of correct and incorrect readings, focusing on Kelsen’s Basic Norm.
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Notes
- 1.
I should note that at this conference Scott Shapiro expressed an intention to write about Kelsen at length in a forthcoming work on international law.
- 2.
The “exclusive” entry in that text is by Andrei Marmor; the “inclusive” entry is by Kenneth Einar Himma.
- 3.
Marmor offers a slight variation of Green’s too-quick dismissal: “Instead of telling us something about the foundations of the basic norm, Kelsen simply invites us to stop asking” (Marmor 2011: 146).
- 4.
- 5.
- 6.
- 7.
See, eg, (Kelsen 2013: 217).
- 8.
- 9.
There is a common confusion in understanding both Kelsen’s “Basic Norm” and H. L. A. Hart’s analogous concept, the “rule of recognition” (Hart 2012: 94–95, 100–110). While there is an understandable temptation to equate these fundamental norms with foundational texts of a legal system (like the United States Constitution), this equation is at best imprecise. First, as Kelsen points out, the current foundational text may have been created under the authority of a prior foundational text of the same legal system, so the Basic Norm should refer to the historically first foundational text. Second, there remain questions of how to interpret the provisions of the foundational text, and to determine what priority it has in that legal system in relation to other national and international legal norms. Third, at least with the case of Kelsen’s Basic Norm , the norm is an instruction to act in accordance with a particular legal text, a prescription that is in principle separate from the legal text itself.
- 10.
There are, of course, numerous responses in the philosophical and jurisprudential literature to this potential skeptical challenge.
- 11.
Kelsen refers more commonly to “the science of law” (or “legal science”)—“Rechtswissenschaft.” The reference to “science” in Kelsen’s work, and in German generally, means objective academic inquiry, without necessarily implying all the extra baggage that the term “science” carries in English (such that one might comfortably refer to literary theory in German as a “science,” while it would be an unlikely, and certainly controversial, description in English) (Paulson 1992b: 127–129).
- 12.
See also (Kelsen 1949: 116–117): “The basic norm is the answer to the question: how—and that means under what condition—are all these juristic statements concerning legal norms, legal duties, and so on, possible?”
- 13.
I recognize that there may be other passages in Kelsen’s text that support a different reading. For a good overview of the different tenable readings of Kelsen’s writings on the Basic Norm, see (Paulson 2012).
- 14.
In a later edition of the same text, he clarifies that an anarchist who was also a law professor “could describe positive law as a system of valid norms, without having to approve of this law” (Kelsen 1967: 218 n. 82). This idea corresponds with Joseph Raz’s idea of a detached normative statement, or statements from a legal point of view (Raz 2009: 156–157), and is fully consistent with the analysis offered in this article.
- 15.
Kelesen writes:The problem that leads to the theory of the basic norm…is how to distinguish a legal command which is considered to be objectively valid, such as the command of a revenue officer to pay a certain sum of money, from a command which has the same subjective meaning but is not considered to be objectively valid, such as the command of a gangster (Kelsen 1965: 1144).
- 16.
Later in the same passage, Kelsen adds, helpfully: “The concept of normative validity is, rather, an interpretation; it is an interpretation made possible only by the presupposition of a basic norm,” and that such an interpretation is well-grounded “if one presupposes the…basic norm.” (Kelsen 2013: 219 (emphasis in original)) .
- 17.
The omitted text states: “[they] reject natural law as the basis of validity of positive law.…” (Kelsen 1992: §29, at 58). And once more: “This presupposition [of the Basic Norm] is possible but not necessary.…Thus the Pure Theory of Law, by ascertaining the basic norm as the logical condition under which a coercive order may be interpreted as valid positive law, furnishes only a conditional, not a categorical, foundation of the validity of positive law” (Kelsen 1960b: 276).
- 18.
For Hart, “accepting” is accepting the legal system as giving reasons for action. As Michael Steven Green pointed out to me, it is probably too strong to see the normative reading of official action within Kelsen as similarly involving any view that the law gives reasons for action.
- 19.
When one says that one can choose to view the (legal) actions of officials normatively or not, it is important to note that this does not mean that this “choice” is always or necessarily a conscious choice. The reference to “choice” indicates primarily that there is an option; one could do (or think) otherwise.
- 20.
- 21.
Gardner here reflects the conventional position, though, of course, thinkers ranging from Philippa Foot to Friedrich Nietzsche have raised exactly the question Gardner’s quotation implies cannot or should not be raised: whether one should follow the dictates of morality. See (Foot 1978: 157–173) (on whether morality is merely a “hypothetical imperative”), (Foot 1978: 181–188) (questioning whether moral considerations are “overriding”), (Nietzsche 1998).
- 22.
Robert Alexy points out similarly that “[o]ne can of course refuse … to participate in the (utterly real) game of law.” (Alexy 2002: 109).
- 23.
Cf. (Schauer 2010) .
- 24.
I am indebted to Frederick Schauer for this suggestion.
- 25.
Cf. (Marmor 2007: 153–181), comparing law and chess.
- 26.
See (Kant 1998). The particular way of phrasing the matter in the text above (eg, the reference to “sense data”) is likely not a way most Kantians would choose, but it should suffice for the rough summary needed here.
- 27.
A comparable point could be made, as earlier mentioned, for a moral or theological normative system, or any other kind of normative system.
- 28.
My reading of Kelsen is very close to J. W. Harris in (Harris 1996), though Harris—like Paulson—expressed concern that this Kelsenian view of legal normativity might leave the theory with limited practical significance.
- 29.
As Paulson shows, indirectly, by his sharp critique of other readings (Paulson 2012).
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Acknowledgement
I am grateful for the comments and suggestions of participants of the Valparaiso University Law School Conference, Hans Kelsen in America. Portions of the second part of this paper were developed from ideas presented in “Rules and Normativity in Law,” in Problems of Normativity, Rules and Rule Following (Bix 2015).
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Bix, B.H. (2016). Kelsen in the United States: Still Misunderstood. In: Telman, D. (eds) Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence. Law and Philosophy Library, vol 116. Springer, Cham. https://doi.org/10.1007/978-3-319-33130-0_2
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