Abstract
Andrei Marmor’s reading of Kelsen in his book Philosophy of Law (2011) exemplifies American and Anglophone interpretations, which see Kelsen as failing to consistently offer a pure theory of law. I argue that Marmor misreads Kelsen in three ways, each of which makes it appear as if Kelsen reduced the law to social facts. First, Marmor wrongly marginalizes the doctrine of the unity of law in Kelsen’s legal theory, thereby making Kelsen look as if he thought multiple independent legal systems, each dependent upon a human community, exist. Second, Marmor misreads Kelsen’s doctrine of efficacy as the view that the existence of a legal system fundamentally depends upon the norms of the system being followed by a community’s members. Third, Marmor misunderstands the Neo-Kantian nature of Kelsen’s legal theory, attributing to Kelsen the very psychologism that he argued against. Once these three mistakes are corrected, we can understand Kelsen as having offered a genuinely pure theory of law. But the question remains whether we have a reason to accept the theory. I end by briefly discussing some evidence from the conflict of laws that suggests that jurists treat the law as not reducible to social facts.
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Notes
- 1.
Alfred Verdross was another member, with Kelsen, of the “Vienna School” of legal theory. Fritz Sander, a former student of Kelsen’s, became one his most prominent critics.
- 2.
And to the extent that Kelsen offered insights that can be appreciated without accepting a pure theory of law, they assume that the same insights can be found, more clearly presented, in H.L.A. Hart’s writings (Murphy and Coleman 1990: 27).
- 3.
I describe positivists as believing that law is ultimately determined solely by social facts, because inclusive legal positivists concede that social facts can make evaluative facts relevant to law’s existence and content. For exclusive legal positivists, by contrast, law always depends solely on social facts.
- 4.
For an inclusive legal positivist, if evaluative facts disappeared, law that depends upon such facts could not exist (or its existence would be indeterminate). But there could still be law, for it is not necessary that law depends upon evaluative facts.
- 5.
An example here is the “robust realist” and non-naturalist David Enoch, who believes that “there is no metaphysically possible world where the basic norms [of morality] are different.” (Enoch 2011: 146). It follows that the basic norms of morality were in place when dinosaurs roamed the earth.
- 6.
An example is Enoch’s argument that robust realism about morality is supported by our willingness to “stand our ground” in cases of moral conflict, that is, to not arrive at an “impartial” resolution that seeks to accommodate the disputants’ actual preferences (Enoch 2011: 23–24).
- 7.
This would mean treating Article VII as, in some sense, independent of the rest of the Constitution. It preceded the Constitution by providing the method for its enactment.
- 8.
Granted, the positivist can accept that it was a conceptual truth even in the Jurassic Era that if the social facts that constitute the American legal system are in place, Article VII will be law. But he would deny that any legal facts existed in the Jurassic Era, in particular, that anyone was legally authorized to create Article VII. For the positivist, the existence of a legal authorization would require an actual human community.
- 9.
The pure theorist of law is analogous to a robust moral realist like Enoch, who accepts that moral facts supervene upon natural facts, but who argues that this supervenience relation follows from moral principles that do not themselves depend upon natural facts (Enoch 2011: 140–50).
- 10.
I will also occasionally refer to his article on the pure theory of law in the Stanford Encyclopedia of Philosophy (Marmor 2010), which overlaps substantially with his book.
- 11.
The United States Constitution contains no provision authorizing the creation of state law. It presupposes state law’s existence. It does contain a provision (Art. IV, § 3) for the creation of new states, but it is not clear that this should be understood as the authorization of state law. And even if it is so understood, this authorization could not apply to the law of the thirteen original states.
- 12.
The first constitution need not be written. Kelsen argued, for example, that the first constitution of international law is that the custom of states creates valid law. Furthermore, this constitution was itself created through custom (Kelsen 1960a: 226, 323).
- 13.
Marmor argues that, for Kelsen, someone treating the law as valid thereby also treats the law as providing a practical reason for action, that is, “a justified demand on practical deliberation ” (Marmor 2011: 25). According to Marmor, Kelsen rejects sociological accounts of the law because of their inability to explain the reason-giving character of legal norms. Later in the chapter, Marmor argues that Kelsen should have distinguished between the question of the validity of law and its normativity (in the sense of its practical reason-giving character). In fact, it is unclear whether Kelsen believed that someone who recognizes a legal norm as valid thereby takes himself to have a reason for action in the sense relevant for practical deliberation (Paulson 2012; Delacroix 2004; Wilson 1982).
- 14.
Although Kelsen described his philosophy of law as positivist (Kelsen 1960a: 217), he is not a positivist in the sense that I define it, for he does not think law is ultimately reducible solely to social facts about a community.
- 15.
See also Kelsen 1934, 60 (“[A] normative system to which reality no longer corresponds to a certain degree will necessarily lose its validity. The validity of a legal system…depends in a certain way…on the efficacy of the system.”).
- 16.
Marmor is not as careful as he could be in describing what efficacy is for Kelsen. The question is not merely whether those subject to the mandatory norms of the legal system generally comply with them but also whether relevant officials apply the norms of the system (Navarro 2013: 79 n.12). In Marmor’s defense, he might understand such application as officials “following” the norms, however.
- 17.
Marmor quotes A General Theory of Law and State: “[A]n anarchist, for instance, who denied the validity of the hypothetical basic norm of positive law…will view its positive regulation of human relationships…as mere power relations.” (Kelsen 1945: 413). It is worth noting that Kelsen later explicitly rejected this reading of the anarchist. He concluded that the anarchist, despite rejecting the law politically, could still presuppose the basic norm and therefore understand it as a system of valid norms (Kelsen 1960a: 218 n.82). This is a reason to conclude that Kelsen did not think that someone who treats the law as valid thereby also treats it as providing practical reasons for action. See note 13 above.
- 18.
Monism as described here is different from a homonymous term used by international lawyers. If a nation’s law is monist in this other sense, international law has a direct effect upon the legal rights and obligations of individuals under national law (Waters 2007; 641). A citizen may, for example, successfully challenge the validity of a statute on the grounds that it is contrary to a treaty entered into by the nation. If a nation’s law is dualist, by contrast, such a challenge cannot succeed, unless there is a particular national law that has given the treaty such an effect. In the absence of such a law, the statute is binding on the individual, even though the nation might recognize the treaty’s validity as a matter of international law—for example, by acknowledging that the statute’s conflict with the treaty makes sanctions against it by other nations legally permissible. Thus, it is sometimes said that under dualism national and international law form two separate systems, with international law’s effect confined to the relationship between nations (Henkin 1987: 864).
These positions are not the monism and pluralism described here. Monism, as Kelsen understands it, is compatible with legal phenomena that are described by international lawyers as “dualist.” The fact that a treaty recognized by a nation provides individuals with no grounds to challenge the validity of a statute simply speaks to the legal relationship between those two types of law. It does not mean that international law and the domestic laws of each nation are not part of the same legal system.
Likewise, pluralism is compatible with legal phenomena that are described by international lawyers as “monist.” Assume that under a nation’s law an individual can invoke a treaty against the validity of a statute. The pluralist can still insist that the international and the national legal systems are separate. Facts about the nation’s law, she can argue, are reducible to facts about the national community, whereas facts about international law are reducible to facts about an international community (the community of nations or officials of those nations, considered collectively). The individual arguing that the treaty invalidates the statute is making an argument under national law, not international law. Social facts about the national community are ultimately the reason that the statute’s conflict with the treaty makes it invalid. To be sure, the fact that the statute conflicts with the treaty is a matter of international law, determined by social facts about the international, not the national, community. But simply because a criterion for the validity of national law refers to international law does not mean that the national and international legal systems are one.
- 19.
That the principle must be one of efficacy is questionable. Because the principle is itself a matter of positive law (Kelsen 1945: 121), there is no reason why it would have to have that particular content.
- 20.
Kelsen’s view that monism did not entail the primacy of international law was the focus of a debate among Austrian legal scholars back in the 1920s (von Bernstorff 2010: 104–107).
- 21.
Curiously, American subsystem law would also reappear within the unitary American legal system, because American law as a subsystem would also be recognized by international law.
- 22.
A national monist might take the position that the law of no other nation is valid. But I doubt that Marmor would be inclined to find that position, under which only American law is valid, any more attractive.
- 23.
A legal norm, Kelsen argues, “does not exist in space and time, for it is not a fact of nature” (Kelsen 1934: 12).
- 24.
For example, Kelsen repeatedly speaks of the basic norm as transcendental-logical (Kelsen 1960a: 201–02, 218, 223, 226). Kelsen’s Neo-Kantian approach is even more explicit in passages from the German version of the second edition, omitted in the English translation, eg Kelsen 1960b: 208 n.**, where he explicitly draws an analogy between his method and Kant’s.
- 25.
- 26.
A quietist might speak about the knowing subject creating her objects of knowledge as a means of foreclosing Platonist theories in which the objects of knowledge are given independent metaphysical status. For a discussion of how the quietist must walk a fine line between subjectivism on the one hand and metaphysical realism on the other, see Green 2003: 396–398, 2009: 367–368.
- 27.
- 28.
My argument supports the international rather than the national version of monism. Indeed, like a number of Kelsen’s Austrian critics in the 1920s—such as Alfred Verdross and Josef Kunz (von Bernstorff 2010: 105) —I find the national version of monism questionable. To the extent that one treats other national legal systems as having validity under principles of international law, I cannot see how one could not consider one’s own national legal system as fundamentally subject to those same principles.
- 29.
The Court of Appeals reversed the trial court’s dismissal of a second cause of action, according to which the defendant failed to abide by a provision in the contract that stated that “in the event the plaintiff should die or become unable, without fault on his part, to serve during the period of the contract the defendants would pay to him or his heirs the sum of 120,000 marks, in discharge of their obligations, under the hiring aforesaid.”
- 30.
When conflicts rules are understood as rules of scope, one must then confront the question of whether other jurisdictions ought to respect them. (This is commonly called the problem of renvoi or désistement.) If New York officials have said, through their conflicts rules, that the facts are beyond the scope of New York law, it would appear that other jurisdictions are not permitted to apply New York law to the facts. I argue, however, that this reasoning is mistaken at Green 2013: 869–884.
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Acknowledgments
Thanks for helpful comments from the participants in the Kelsen in America Conference, organized by Jeremy Telman. Thanks for further aid to Brian Bix, David Enoch, Andrei Marmor, Stanley Paulson, and Lars Vinx
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Green, M.S. (2016). Marmor’s Kelsen. 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_3
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