The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen — see the bibliographical note. Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world PT1,
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The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen — see the bibliographical note. Kelsen began his long career as a legal theorist at the beginning of the 20th century.
The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand.
He found both of these reductionist endeavors seriously flawed. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world PT1, Suppose, for example, that a new law is enacted by the California legislature.
How is it done? Now, of course, the actions and events described here are not the law. To say that the description is of the enactment of a new law is to interpret these actions and events in a certain way.
In other words: it is the law in the United States that the California legislature can enact certain types of laws. But what makes this the law? The California Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of content and jurisdiction. But then what makes the California Constitution legally valid?
The answer is that the legal validity of the Constitution of California derives from an authorization granted by the US Constitution. What makes the US Constitution legally valid? Any document can say that, but only the particular document of the US Constitution is actually the supreme law in the United States.
At this point, Kelsen famously argued, one must presuppose the legal validity of the Constitution. At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this presupposition is what Kelsen has called the basic norm. The basic norm is the content of the presupposition of the legal validity of the first, historical constitution of the relevant legal system GT, — As Kelsen saw it, there is simply no alternative.
Hume famously argued that any practical argument that concludes with some prescriptive statement, a statement of the kind that one ought to do this or that, would have to contain at least one prescriptive statement in its premises.
If all the premises of an argument are descriptive, telling us what this or that is the case, then there is no prescriptive conclusion that can logically follow. Kelsen took this argument very seriously. The second function is to ground a non-reductive explanation of the normativity of law.
The third function is to explain the systematic nature of legal norms. These three issues are not un-related. Kelsen rightly noticed that legal norms necessarily come in systems.
There are no free-floating legal norms. Furthermore, legal systems are themselves organized in a hierarchical structure, manifesting a great deal of complexity but also a certain systematic unity.
We talk about Canadian law, or German law, etc. They are also separate legal systems, manifesting a certain cohesion and unity. This systematic unity Kelsen meant to capture by the following two postulates:. Whether these two postulates are actually true is a contentious issue.
Joseph Raz argued that they are both inaccurate, at best. Two norms can derive their validity from the same basic norm, but fail to belong to the same system as, for example, in case of an orderly secession whereby a new legal system is created by the legal authorization of another. Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm Raz , — Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his main insight remains true, and quite important.
Norms are legally valid within a given system, they have to form part of a system of norms that is in force in a given place and time. So the relationship here is this: efficacy is not a condition of legal validity of individual norms.
Any given norm can be legally valid even if nobody follows it. However, a norm can only be legally valid if it belongs to a system, a legal order, that is by and large actually practiced by a certain population. And thus the idea of legal validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system exists, as it were, only as a social reality, a reality that consists in the fact that people actually follow certain norms.
What about the basic norm, is efficacy a condition of its validity? One might have thought that Kelsen would have opted for a negative answer here. After all, the basic norm is a presupposition that is logically required to render the validity of law intelligible.
Kelsen, however, quite explicitly admits that efficacy is a condition of the validity of the basic norm: A basic norm is legally valid if and only if it is actually followed in a given population. In fact, as we shall see below, Kelsen had no choice here. And this is precisely why at least one crucial aspect of his anti-reductionism becomes questionable.
The structure is as follows:. In other words, the necessary presupposition of the basic norm is derived from the possibility conditions for ascribing legal significance to actions and events.
At some point, as we have noted, we necessarily run out of legal norms that confer the relevant validity on law creating acts, and at that point the legal validity has to be presupposed. The content of this presupposition is the basic norm. Kelsen himself seems to have changed his views about this over the years; he may have started with a kind of neo-Kantian perspective one can discern in PT1, and gradually shifted to a Humean version of his main argument, which is quite evident in GT.
However, this is a very controversial issue; for a different view, see Paulson and Green Kant employed a transcendental argument to establish the necessary presuppositions of some categories and modes of perception that are essential for rational cognition, or so he thought. They form deep, universal, and necessary features of human cognition.
More on this, below. Second, and not unrelated, as we shall see, Kelsen has explicitly rejected the idea that the basic norm in law, or of any other normative domain is something like a necessary feature or category of human cognition.
The presupposition of a basic norm is optional. But one is not rationally compelled to have this attitude:. A comparison to religion, that Kelsen himself offered, might be helpful here. The normative structure of religion is very similar to that of law. Thus the normativity of religion, like that of the law, rests on the presupposition of its basic norm. But in both cases, as, in fact, with any other normative system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions.
Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason. Relativism, however, comes with a price.
Consider this question: What is the content of the basic norm that one needs to presuppose in order to render positive law intelligible as a normative legal order? The simple answer is that what one presupposes here is precisely the normative validity of positive law, namely, the law that is actually practiced by a certain population.
The content of the basic norm of any given legal system is determined by the actual practices that prevail in the relevant community. As Kelsen himself repeatedly argued, a successful revolution brings about a radical change in the content of the basic norm. Suppose, for example, that in a given legal system the basic norm is that the constitution enacted by Rex One is binding.
One gets the clear impression that Kelsen was aware of a serious difficulty in his position. In both editions of the Pure Theory of Law, Kelsen toys with the idea that perhaps changes in the basic norms of municipal legal systems legally derive from the basic norm of public international law. But this led Kelsen to the rather uncomfortable conclusion that there is only one basic norm in the entire world, namely, the basic norm of public international law.
Be this as it may, the main worry lies elsewhere. The worry stems from the fact that it is very difficult, if not impossible, to maintain both a profound relativist and an anti-reductionist position with respect to a given normative domain. This is basically what was meant earlier by the comment that Kelsen had no option but to admit that the validity of the basic norm is conditional on its efficacy.
And this makes it very questionable that reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to provide a reductive explanation of the concept of legal validity in terms of some set of social facts, the facts that constitute the content of any given basic norm. Which is precisely the kind of reduction H. Hart later offered in his account of the Rules of Recognition as social rules [see Hart , at p.
The problem stems from the fact that Kelsen was quite right about the law. Legal validity is essentially relative to the social facts that constitute the content of the basic norm in each and every legal order. Notice that legal validity is always relative to a time and place. A law enacted by the California legislature only applies within the boundaries of the state of California, and it applies during a certain period of time, after its enactment and until a time when it is modified or repealed.
And we can see why: because legal validity is determined by the content of the basic norm that is actually followed in a given society. Once Kelsen admits, as he does, that the content of a basic norm is fully determined by practice, it becomes very difficult to understand how the explication of legal validity he offers is non-reductive. Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normativity consists in.
A certain content is regarded as normative by an agent if and only if the agent regards that content as a valid reason for action.
As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the normativity of law can only be explained as one would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action Raz , —; but cf.
Paulson The anarchist does not endorse the legal point of view as one that reflects her own views about what is right and wrong. Anarchism is understood here precisely as a rejection of the normative validity of law; however, even the anarchist can make an argument about what the law in this or that context requires; and when she makes such an argument, she must presuppose the legal point of view, she must argue as if she endorses the basic norm of the relevant legal system.
Another example that Raz gave is this: suppose that at Catholic priest is an expert in Jewish Law; the priest can make various interpretative arguments about what Jewish law really requires in this or that context. In such a case, the priest must argue as if he endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not really endorse it, it does not reflect his own views about what is right and wrong Raz , — So here is what emerges so far: the concept of normativity, the sense in which normative content is related to reasons for action, is the same across all normative domains.
To regard something as normative is to regard it as justified, as a warranted requirement on practical deliberation.
The Pure Theory of Law
Kelsen used this word to denote the basic norm , order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy akin to the concept of first principles. This "basic norm", however, is often described as hypothetical. The reception of the term has fallen into three broad areas of discernment including i Kelsen's original introduction of the term, ii the Neo-Kantian reception of the term by Kelsen's critics and followers, and iii the hypothetical and symbolic use of the term through the history of its application.
This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work at least one reasonable reading of it. The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system — thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary and less morally-flavored understanding of the nature of law is tenable, and may, in fact, work better than current conventional morality-focused understandings.