Legality and Legitimacy in Hans Kelsen’s Pure Theory of Law by Lars Vinx A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Graduate Department of Philosophy University of Toronto © Copyright by Lars Vinx, 2006Dissertation abstract Legality and Legitimacy in Hans Kelsen’s Pure Theory of Law PhD 2006 Lars Vinx Department of Philosophy University of Toronto My thesis attempts to show that Hans Kelsen’s Pure Theory of Law successfully occupies amiddle ground between natural law and legal positivism. I argue that the strength of the Pure Theory of Law cannot be brought out fully unless it is read in the light of Kelsen’s political theory, which has received very little attention in previous scholarship. Kelsen’s theory of the basic norm, ifinterpreted against the background of Kelsen’s political theory, tums out to be related to a constitutional ideal I call the ‘utopia of legality’. This constitutional ideal is based on the claim that the full conformity of exercises of political power with standards of positive legality can potentially amount to a sufficient condition of the legitimacy of the exercise of political power. ‘The utopia of legality, I argue, is an attractive and stable constitutional ideal because it is independent of a ‘thick’ conception of community and compatible with the persistence of ahigh degree of substantive moral disagreement. I defend the view, moreover, that Kelsen’s Pure Theory of Law provides us with the outlines of an understanding of the rule of law, of democratic legislation, and of formal iiconstitutionalism thet undercuts the common assumption of an inevitable tension between these three key elements of modem westem polities Positivist legal theorists inspired by Kelsen’s work failed to appreciate the political-theoretical potential of the Pure Theory of Law and thus tumed to anarrow agnosticism about the functions of law. The Pure Theory of Law, I conclude, may offer a paradigm of jurisprudential thought thet could reconnect jurisprudence with political theory as it was traditionally understood: namely as a reflection on the best constitution and on the contribution that different legal actors and institutions can make to its realization. ittAcknowledgements I would like to thank my supervisor David Dyzenhaus for his unfailing encouragement and unwavering support. The completion of this thesis would not have been possible without the rich intellectual stimulation David generously provided in numerous discussions, about legal philosophy in general and Kelsen in particular The ideas presented here are deeply indebted to David’s philosophical outlook as well as to his many insightful comments on my drafts. I could not have hoped for a better supervisor Gopal Sreenivasan commented on the entire thesis with exceptional care. His probing questions and valuable suggestions were extremely helpful in clarifying many central issues and concepts. I am very thankful to have been able to benefit from areader this keen and diligent. Iam indebted, moreover, to Bob Gibbs for providing me with many valuable ideas and insights and for encouraging me to engage with a thesis proj that straddled the divide between continental and analytical approaches. Fred Schauer and Arthur Ripstein read the whole thesis and made many important suggestions for further improvement. I was very fortunate to receive their comments on my work. My work on this thesis benefited greatly from the financial support I received as a Connaught Fellow at the University of Toronto from 2001 to 2005 as well as from an Ontario Graduate Scholarship I held in 2002-2003, ivTable of Contents I. Introduction ‘Three paradigms of legal positivism Kelsen’s legal science Kelsen’s legal politics Kelsen’s identity thesis and the rule of law IL, ThePure Theory of Law — Science or Political theory? IL.1 Law and Nature Subjective and objective legal meaning Kelsen’s theory of legal order Kelsen and theoretical anarchism: The pure theory as critique of ideology Conclusions to IL 11.2 Law and Morality ‘The pure theory as a theory of legal legitimacy Kelsen and the separation of law and morality Further questions III. Kelsen’s Principles of Legality Legal hierarchy and depersonelization of the state Kelsen’s principle of legality I Nullity Kelsen’s principle of legality II. Voidability 1-47 5-14 14-25 25-35 35-47 48-141 53-105 55-68 68-88 89-101 102-105 105-141 107-121 121-132 132-141 142-180 145-155 155-161 161-170‘The sovereignty of law: The doctrine of normative alternatives reconsidered 170-176 Further questions 176-180 IV. Kelsen’s Theory of Democracy — Reconciliation with Social Order 181-259 Kelsen on the ‘torment of heteronomy’ 186-202 Democracy as the metamorphosis of freedom. 202-214 Kelsen’s defense of majority rule 214-233 Freedom and Compromise: Democracy and constitutional entrenchment Kelsen’s relativism 241-259 V. Democratic Constitutionalism — Kelsen’s Theory of Constitutional Review 260-337 Kelsen and Schmitt on the guardian of the constitution 267-283 Kelsen’s conception of adjudication: Implications for a theory ofreview 283-300 Kelsen on the concept of constitution 300-310 Constitutional values and judicial role 310-337 VI. Conclusions — The Pure Theory of Law and Contemporary Positivism 338-367 Appendix: Bibliography 368-376Eine der Idee des Rechtsstaates adaquate Rechtssystematik steht heute noch aus. Die Rechtsstaatsidee aber ist noch nicht uberwunden, ihre allseitige rechtslogische Entwicklung bleibt Aufgabe der Zukunft. (Hans Kelsen, 1913)" I. Introduction This thesis offers an analysis of Hans Kelsen’s pure theory of law. It will proceed from a somewhat unorthodox starting point. Instead of reading Kelsen’s work as a contribution to the tradition of positivist analytical jurisprudence, I will treat it as an attempt to develop a legal theory committed to the full realization of an ideal of the rule of law. In other words, I will explore the question whether it makes sense to regard the full-fledged edifice of the pure theory of law as the performance of the legal theoretical task that the young Kelsen, in 1913, as we can see from the epigraph, regarded as desirable to develop a conceptual framework for legal thought adequate to the idea of the “Rechtsstaat”. T hope that this approach will allow us to understand the way in which two key themes in Kelsen’s work relate to each other, his well-known attempt to establish an autonomous science of jurisprudence, separate from both empirical social science as well as moral theory, on the one hand, and his less well-known attempt to employ the pure theory in the defense of liberal democracy and individual freedom, on the other. The relationship between these two aspects of Kelsen’s work is little understood and has not * Hans Kelsen, ‘Rechtssteat und Steatsrecht’, in WRT II, 1532: “A legal systematics adequate to the idea of the rule of law state has not yet been developed. The idea of the rule of law state, however, has not ‘therefore become obsolete. Its comprehensive legal-logical development remains the task of the future.”attracted much attention? Those who read Kelsen as part of the analytical jurisprudential tradition usually take little notice of his political works or treat them as unrelated to the mmented on Kelsen’s political works from a pure theory of law? Those who have political-theoretical perspective, on the other hand, typically find them woefully deficient precisely in virtue of their reliance on the pure theory of law‘ I believe, by contrast, that both aspects of Kelsen’s work can be given an interpretation under which they mutually support each other. The full strength of Kelsen’s legal theoretical as well as his political theoretical views, I will argue, cannot be adequately understood unless their relationship is made explicit Of course, the claim that the pure theory of law is best understood in the light of its relation to Kelsen’s political works, and ultimately in the light of the aim to develop a legal theory adequate to the ideal of the rule of law, appears to fly in the face of Kelsen’s own description of the nature of his legal-theoretical project. This description emphasizes both that the pure theory is a positivist and that it is a scientific theory of law. It will therefore be necessary to explain the interpretive strategy I have chosen in alittle more detail and to convey at least a rough impression of why it might tum out to be worth pursuing, 2 Two notable exceptions are David Dyzenhaus, Legality and Legitimacy. Carl Schmit, Hans Kelsen and Hermann Heller in Weimar (Oxford 1997), 102-160 and Horst Dreier, Rechtslehre, Staatssozologie und Demokratetheorie bet Hans Kelsen (Beclen-Baden 1986) >The two most important collections of articles on Kelsen’s pure theory contain little or no material on Kelsen’s theory of the state, his theory of democracy, or his constitutional theory. See Stanley Paulson! Bonnie Litschewski-Peulson (eds), Normatuty and Norms. Critical Perspectives on Kelsertan Themes Oxford 1998) and Richard Tux! William Twining (eds), Essays on Kelsen (Oxford 1986). See for critical perspectives on Kelsen’s political theory Dyzenhaus, Legality and Legitimacy (above, n. 2); Wolfgang Schluchter, Entscheiding fiir den sosalen Rechisstaat Hermann Heller und he staatstheoretische Diskussion in der Weimarer Republik (Koln/Berlin 1968), 26-52, Weyma Ltbbe, Legtimtat kraft Legaktat. Simverstehen und Insttutionenanalyse bet Max Weber und seinen Kntikern (Tibingen 1991), 25-66A successful attempt to understand how the political and the legel-theoretical Kelsen relate to each other would, I believe, be of more than purely exegetical significance. The tension between Kelsen’s political and his scientific ambitions is a tension that characterizes legal positivism as such. Is legel positivism to be understood as amere effort at value-neutral description of the law? Oris it to be understood, in addition and pethaps in competition to the descriptive project, as a form of social criticism? The way in which Kelsen relates his theory of law to a political theory, I will argue, shows that he understands legal positivism primarily as a form of social criticism. What is more, Kelsen’s understanding of legel positivism as social criticism leads to a legal theory that, even while being concemed with the practical importance of the positivity of law, is not positivist in the contemporary sense of the term, The pure theory of law tries to create the conceptual space for the view that acts of state necessarily draw at least some legitimacy from their conformity with positive law, even if they are not considered as perfectly just. ‘This legitimacy will in many cases be insufficient to ground concl sive duties to obey the law. But Kelsen believes that the legitimating force of positive law can be strengthened, through the introduction of constitutional structures of the right kind, to the point where it can function as a bridge between the different groups in a modem pluralist society characterized by deep moral disagreement. Kelsen’s emphasis on the autonomy or purity of legal normativity is meant to clear the way for an attempt to realize constitutional conditions capable of achieving this aim. I will defend this interpretation by arguing that the pure theory of law carries nomnative commitments that, according to the view of most contemporary positivists, should not figure in the choice of a concept of law. The fundamental assumptions aboutthe nature of legal normativity that underpin the pure theory as a legal theory, I will try to show, can only make sense if we read them as part of the political-theoretical project to develop an account of legal legitimacy. If we did not value the normative ambitions expressed in Kelsen’s conception of legal legitimacy or if we did not think that the hope for a political order that realizes the conditions of legal legitimacy is a reasonable hope there would be no reason to prefer Kelsen’s peculiar account of legal normativity over nomnatively less-committed positivist accounts, But if the pure theory as a legal theory can make good on its claim to descriptive generality, despite its relation to a politic ideal, and if Kelsen’s conception of the relation between his legal and political theory is coherent, positivist conceptions of legal normativity that reject the view that legality can be an autonomous ground of legitimacy will no longer be justifiable on purely methodological grounds In order to provisionally substantiate these claims and to provide a framework: for further discussion, I will give a short overview of recent debates about the methodological status of legal positivism and explain how these contemporary debates relate to Kelsen’s understanding of the legal-theoretical project. I will then go on to provide a thumbnail sketch of the comerstone of Kelsen’s attempt to develop a theory of legal legitimacy, his thesis of the identity of law and state, and try to present an outline of the defense of the coherence of the identity thesis which I intend to undertake.Three paradigms of legal positivism Contemporary legal positivists do not just disagree, on a substantive level, over the precise nature of a positivist conception of legality.’ They also disagree over the methodological status of legal positivism as a jurisprudential theory * In what follows, I ‘want to outline three different contemporary paradigms of positivism, methodological positivism, political positivism, and Razian positivism, in order to establish a background for my attempt to classify Kelsen’s jurisprudential position Methodological positivism’ assimilates legal theory to descriptive social science and treats the existence of law as a matter of social fact. The thesis that there is no necessary connection between law and morality is seen as a consequence of the conventionality of the social rules that govern the identification of valid law. There at least could be legal systems that exist as a matter of social fact but which do not incorporate any moral standards into their standards of legality ® Political positivists, on the other hand, claim that our understanding of legal practices shapes the nature of our law. Choices between different concepts of law that meet basic standards of descriptive adequacy are not perfectly determined by objective matters of fact beyond our control Tam thinking here of the debate between ‘inclusive’ and ‘exclusive’ positivism. See Wilfrid J. Waluchow, Incluave Legal Poaitvism (Oxford 1994); Jules Coleman, The Practice of Principle. In Defence of a Pragmaiist Approach to Legal Theory (Oxford 2001), 103-148; Joseph Raz, ‘Authority, Law, and ‘Morality’, in Joseph Raz, Ethicsin the Public Domain. Essaysin the Moraiity of Law and Pobitics (Oxford 1995), 210-37, at 226-230, "See Joseph Raz, ‘Can There be a Theory of Law”, in Martin Golding! William Edmundson (eds), Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford 2005), 324-42, Julie Dickson Evaluaton and Legal Theory (Oxford 2001), Wilfnd J. Waluchow, Inclusive Legal Posttwsm, 9-30 (above, n. 5); John Finnis, Natural Law and Natural Rights (Oxford 1980), 3-22, Stephen Perry, ‘Hart's ‘Methodological Positivism’, in Jules Coleman (ed), Hart’s Postscript Essays on the Postscnpt to “The Concept of Law’ (Oxford 2601), 311-354 TT bomow this term from Stephen Perry, “The Varieties of Legal Positivism’, in Canadian Joumal of Law and Jurisprudence, 9 (1996), 361-81. See also Perry, ‘Hart's Methodological Positivism’ (above, n.6) See for a recent defense ofthis view Jules Coleman, The Practice of Principle (above, n.5), 74102Hence, such choices should reflect our ideal of good law. The separation of law and morality, the political positivist goes on to argue, can be defended on the ground thet adopting a positivist standard of legality will have morally beneficial consequences for a society® Razian positivists finally, claim that positivism is required to explain how the law can function as an independent and distinctive standard for the guidance of human action. This position is descriptive-explanatory in the sense that its analysis of how the law can be a distinctive guiding standard of human action does not imply a moral evaluation of any particular law or legal system, But at the same time, it openly rejects the assimilation of legal theory to empirical social science. The work of HLA. Hart is a source for both methodological and political positivism, Hart famously described his jurisprudential approach in The Concept of Law as an “enterprise in descriptive sociology” ™° In the postscript to The Concept of Law, he further explained his methodology by claiming that the positivist project aims to give a general theory of law which is descriptive and not evaluative” Positivists, then, do not just argue that standards of legality either do not or at least need not include or make reference to standards of morality. They make the further meta-theoretical claim that legal theory is a descriptive-explanatory project that “can and should offer a normatively ° This argument for positivism is defended, in one form or another, by Frederick Schauer, ‘Positivism as Pariah’, in Robert P. George (ed), The Autonomy of Law. Essays on Legal Positvtsm (Oxford 1996), 31- ‘55; Neil MacCommick, ‘A Morelistic Case for A-Mralistc Law?”, in Valparaiso University Law Review, 20'(1985), 1-41; Liam Murphy, “The Political Question of the Concept of Law’, in Coleman (ed), Hart's Postscript (above, n 6), 371-409 HLA Hart, The Concept of Law, 2 edition, ed. Penelope Bulloch! Joseph Raz (Oxford 1994), vi © See Hart, The Concept of Law (above, n. 10), 239-40: “My aim in this book was to provide a theory of what law is that is both general and descriptive. It is general in the sense that i isnot tied to any particular legal system or legal culture... My account is descriptive in that it is morally neutral end has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an ‘important preliminary to any useful moral criticism of the law.”neutral description of a particular social phenomenon, namely law”! According to the view Hart presents in the Postscript substantive and methodological positivism are intimately related. The thesis that there is no necessary connection between law and morality, Hart suggests, will be defensible if and only if it is possible to offer a non- evaluative description of the essential features of legal order.? As many interpreters have noted, however, in his earlier work Hart appears to present a normative argument for positivism as a substantive theory of legality." Like Bentham, Hart thought that natural law theories camy a social danger, the danger of favoring ‘obsequious quietism’ in the face of unreasonable or unjust legal directives. * Hatt’s worry arises from the following line of thought: Natural law theory claims that there is at least a prima facie general moral duty to obey the law. It also claims, of course, that formally valid laws, laws duly enacted by official authorities, lack genuine legal validity if they are too unjust. But despite this proviso, natural law theory will at least establish a presumption to the effect that duly enacted laws merit obedience. Few laws, after all, will tum out to be so intolerably unjust that they obviously fail whatever proviso the natural lawyer introduces. © Hart argues that a dissenter, in denying a duty to obey the © Pemry, Hart's Methodological Positivism (above, n. 6), 311, See also Perry, The Varieties of Legal Poativism (above, n. 7), 361: “Methodological positivists maintain that legal theory is a purely descriptive, ron-nomtive enterprise that sets out, im the manner of ordinary science, to tell us what one particular comer of the world we inhabit is like ” (my emphasis) This later description suggests that the mere value reutrlity of a legel theory is not sufficient to characterize it as methodological positivism. Rather, ‘methodological positivism would seem to be characterized by the fact that its commitment to value xeutrlity results from the view that jurisprudence is part and parcel of ordinary science. In whet follows, I will employ the term ‘methodological positivism’ in this second, narrower understanding only. ® See Hart, The Concept of Law (above, n. 10), 268-272 + "Thus argument is more prominent in Hart's early work than in his later efforts. See HLA. Haut, “Positivism and the Separation of Law and Morality’, in HLA Hart, Essays in Jurisprudence and Philosophy (Oxford 1983), 49-87, HLA. Hart, The Concept of Law (ebove, n. 10), 205-212. 2S Jeremy Bentham, A Fragment on Government (Cambridge 1988), 111 2 The idea of @ moral proviso wes first introduced by Gustev Radbruch, ‘Gesetzliches Unrecht und ‘tbergesetzliches Recht’, in Gustav Radbruch, Rechispitlosopive, ed. Ralf Dreier! Stanley L. Paulson (Heidelberg 1999), 211-219, at 216: “The conflict between justice and the security of legel expectationslaw, will thus no longer be able to rely on a simple appeal to the immorality of the law. Rather, he will have to “present the moral criticism of institutions as propositions of a disputable philosophy” which can only weaken his case against the duty to obey morally defective law!” A positivist conception of legality, in Hart's view, is the best antidote to the presumption in favor of authority engendered by natural law since it explicitly denies that a legal demand must, unless we are faced with extraordinary circumstances, in some sense be morally justified. Of course, this second argument for a separation of law and morality sits uneasily with the claim that legal positivism is an exercise in descriptive sociology. It appears to rely on an ideal of good social order and to advocate adoption of the separation thesis on the ground that doing so will be instrumental to the realization of that ideal Stephen Perry has argued that Hart’s legal theory in general, in particular the way 18 in which Hart solves what he calls the ‘persistent puzzles’ of jurisprude is interesting only because his approach fails to exhibit fidelity to methodological positivism.” Any identification of the central puzzles of legal theory presupposes a view as to why we should be interested in solving them and as to what would constitute a solution Any answer to these questions will be value-dependent, shaped by human interest. An a: count of the central features of law”? would be empty and meaningless if it answered the questions: “What are the central features of law?” and “What does it mean to ought to be solved in the following manner. The positive law, secured by enactment and force ought to take precedence even if itis substantively unjust and iational, unless the conflict between the positive law ancl justice reaches such unbearable proportions that the law, as incomect law, must give way to justice.” [my translation] For e recent defense see Robert Alexy, Begriff und Geltung des Rechts (Freiburg 1994), 70- 108. *7HLA Hart, ‘Positivism and the Separation of Law and Morals’ (above, n. 14), 77-78. See also HLA Hat, The Concept of Law (above, n. 10), 205-206 See ibid, 1-17 See Perry, Hart's Methodological Positivism (above, n. 6), 353-354. » For the idea of central features see John Finnis, Natiral Law and Natural Rights (Oxford 1980), 3-22.account for them?” by claiming, explicitly or implicitly, thet the central features of law: are those features that can be explained from the point of view of methodological positivism. It is unclear, however, whether acceptance of this point forces us to abandon all attempts to offer a non-evaluative legal theory”! The most influential recent defense of descriptive-explanatory positivism against normative positivism — offered by Joseph Raz and Julie Dickson — can certainly make a plausible claim to have taken the problem of value dependence into account. Raz and Dickson admit that a general theory of the nature of law will inevitably be value-dependent in the sense that any theoretical description of the law presupposes an answer to the question which of its observable features are most important for an adequate understanding of legal institutions Giving an answer to this question of importance requires that we determine whose perspective and interests should guide our judgment, Raz rejects the view that the standard of importance can be derived from considerations of “theoretical sociological fruitfulness”. Legal theory, rather, has to be sensitive to the fact that ‘the law’ “is a concept used by people to understand themselves” A theory of law, therefore, will have to rely on conceptual resources that reflect how people who use the concept see themselves and their actions in its light In keeping with this general idea, Raz’s account of the central features of law rests on a view of what makes the law qua positive law a distinctive element in the practical deliberations of those subject to it. The law, Raz argues, necessarily claims legitimate authority, ® To admit, in other words, that Dworkin is right to claim that all viable conceptions of law have to attubute some normative purpose tothe law. See Ronald Dworkin, Law's Empire (London 1986), 87-101 ® See Joseph Raz, ‘Authority, Law, ancl Morality’, in Joseph Rez, Fthicsin the Public Domain. Essays in the Morality of Law and Politics (Oxford 1994), 210-237, at 237, See Julie Dickson, Evaluation and Legal Theory (Oxford 2001), 41-43,According to Raz and Dickson, the view that the law claims authority is attributable, at least in an implicit and un-theorized form, to the subjects of the law themselves. The authority thesis, as an answer to the central features-question, is evaluative insofar as it privileges the practical point of view of participants in legal practice who are confronted by the law’s claims over the theoretical interests of an extemal sociological observer. But while the thesis is evaluative, it is only indirectly so since it does not entail thet any legal system’s claims to authority are justified and since it does not commit the legal theorist to any view as to whether it is a good (or a bad) thing that legal systems should claim authority. To say that something is a central and important feature of some social institution, Dickson argues, is simply not the same thing as the moral evaluation of that feature. * ed. Positivists who argue for the separation thesis on normative grounds are a: by Dickson of “arguing in the wrong direction” and of “wishful thinking” ”* According to Dickson, they illicitly infer the truth of legal positivism as a substantive theory of legality from the alleged fact that a belief in the truth of positivism would have beneficial moral consequences, Dickson levels two arguments against this approach. She claims, frst, that the adoption of some theory of the law will have morally beneficial consequences only if the theory is true independently of those consequences ® Dickson argues, moreover, that political positivists are no longer engaged in analytical jurisprudence. Analytical jurisprudence has the task of “attempting to identify and explain the nature of law” as an ¥ See bid, 51-69 2 See ibid, $3.93. Dickson's target is Frederick Schauer, Poattvism as Pariah (above, n.9). For Schave's response see Fredetick Schauer, “The Social Construction of the Concept of Law: A Reply to Julie Dickson’, in Oxford Jounal of Legel Studies, Spring 2005. ¥ See Dickson, Evaluation and Legal Theory (above, n. 23), 88-89. 10“actually existing social institution”? But this enterprise is incompatible with the idea that “value judgments conceming the beneficial moral consequences of espousing a certain theory of law may legitimately feature in the theories.”"”* Political positivists no longer talk about the nature of law, they are engaged in a project of describing ideal law, a project that is best left to “novelists and utopian chemers”” But there is more to Raz’s position, it seems to me, than Dickson’s purely methodological defense suggests? In order to defend the claim that the authority thesis is only indirectly evaluative, Raz has to show that we can understand what it means for some person or institution to claim authority without having to evaluate the claim. This requirement cannot be fulfilled, in a Razian framework, in the way in which a methodological positivist would attempt to fulfill it, namely by describing the empirical social conditions under which de facto authority can be said to exist! Raz insists that “authority is a practical concept”. The task of explaining authority, therefore, falls to the formal (as opposed to the evaluative) part of practical philosophy which “concems the See ibid., 89: “This is @ baseline assumption which all legal theorists inthe tradition under consideration hhete must share, for what else are we doing in legel theory, if not atfempting to characterize that which is distinctive about e very powerful and pervasive kind of social institution which does much to shape us endl our social world?” pid, 9 Ibid. 90 » Dickson's arguments, of course, are not methodological in the sense of arguing that lege theory is part of ordinary science. But they are methodological insofar es they claim thet a commitment to value-neutrality 1s constitutive of the infellectual project of analytical jurisprudence. Raz, I believe, should be read as raking the somewhat different claim that a legal theory which avoids direct evaluation best serves our interest in making our actions conform with reason Joseph Raz, ‘Legitimate Authority’, in Joseph Raz, The Authority of Laws. Essays on Law and Morahity (Oxford 1979), 3-27: “The first standard explanation [of authority, LV] consists in specifying the conditions that are either necessary or sufficient for holding effective (de facto) authonty. But such explanations fail to elucidate the nature of authority in any way at all. To be sue, itis an important part of social theory to explain under what conditions people can obtain or hold authority, under what circumstances @ community is likely to accept the authority of some persons. But they fal altogether to explain what these conditions are for, whet itis to have authority or to be in authority” See as well Joseph Raz, The Morality of Freedom (Oxford 1986) 62-69 where Rez classifies his account of authonity as “ormative-explanatory” ullogical features of concepts like value, reason for action or norm” and not to an empirical social science” In order to understand claims to authority, we must therefore understand the way in which exercises of authority purport to impact on our practical reasoning, ie s”? The how norms enacted by authority are “capable of figuring in practical infere required explanation is provided by the idea that the law claims that those to whom it addresses itself have reason to treat its directives as exclusionary reasons, i.e. as second- order reasons for action that exclude or replace their own assessment of the balance of first-order reasons * ‘The formal-practical idea that legal norms purport to be exclusionary reasons allows us to characterize their logical role in practical reasoning without evaluating the substantive soundness of any claim to legal authority. The view also leads to an elegant defense of substantive positivism that is neither dependent on the idea that jurisprudence is a species of descriptive sociology nor on apolitical argument that relies on positivism’s allegedly beneficial moral consequences. Legal norms can guide behavior in the way in which exclusionary reasons presume to guide behavior only if they can replace the individual practical judgment of those who are to be guided by the law. But legal norms can replace the judgment of the subjects of the law only if they are identifiable on the basis of social facts and without any resort to moral or political judgment on the basis of the excluded first-order reasons. ** > Joseph Raz, Practical Reason and Norms (Princeton 1990), 10. » Raz, ‘Legitimate Authority’ (above, n.31), 10 See Raz, Practical Reason and Norms (above, n. 32), 35-48, Joseph Raz, “The Claims of Law’, in Rez, The Authority of Law (ebowve, 31), 28-33 * One interesting featue of this argument is that it rejects certain forms of legal positivism while it has zoom, at least in principle, for some forms of natwal law theory. The axgument from authority rules out all natural law theones that claim that the identification of law involves moral judgment. But as Raz himself points out, to claim that laws must be able to guide us without us having to rely on judgments concerning their value and purpose does not entail that there can be no necessary conection between law and morality, 12However, the view that authority is a practical concept also entails that it is not possible to fully understand the structure of claims to authority without understanding what would justify them. According to Raz’s ‘normal justification thesis’, agents reasonably treat authoritative legal directives as exclusionary reasons only if doing so is expected to enhance the overall conformity of their actions with reason, i.e. with the first- order reasons that apply independently of the authoritative directive. In order for the view that law necessarily claims authority to remain compatible with positivism, Raz must argue that all relations between claimed legal authority and justified legal authority strong ‘enough to sustain duties of obedience to law are partial and contingent * He denies, in other words, that there are structural features of legal order as such that suffice to satisfy the normal justification thesis and thus to validate a general attribution of justified authority to the law. All validations of claims to authority are partial, restricted to the limits imposed by a “piecemeal approach” to justification?” ‘The question whether the overall package offered by Razis defensible depends to a considerable degree on whether the analysis of the nature of authority in terms of the theory of exclusionary reasons can really be separated from further debates about the justification of claims to authority as sharply as Raz suggests. For Raz, such further Itdoes ental, however, that inclusive or soft positivism must be rejected because this form of positivism is, just ike some (though not all) forms of natural law, icompatible with the restctions thatthe authoritative zature of law imposes upon the identification of law. See Joseph Raz, Practical Reason and Norms (above, n 32), 162-170. Raz, Authority, Law, and Moraitty (above, n. 22), 227 contains the admission that “it is ‘very likely that there is some necessary connection between law and morality, that every legal system in force has some moral merit or does some moral good even if it i also the cause of a great deal of moral evil” Raz goes on to argue that the connection, though necessary, is too weak to establish a prima facie bligetion to obey the law. I will argue, in this thesis, that Kelsen canbe read as making @ convincing claim to the effect thatthe relationship is atleast potentially much stronger than Raz adiuts See Raz, The Morakty of Freedom (above, n.31), 53-51 27h piecemeal approach to the justification of authonty claims that it is impossible to show that all laws have justified authority over all subjects ofthe law. What we should expect, rather, is that some laws have authority over some subjects of the law. Which laws have authonty over which subjects, in tum, is dependent on individual features of the subjects ofthe law that we can expsct to vary across @ population of legal subjects. The term ‘piecemeal approach’ is used by Raz himself. See ibid, 80 13debates must take the form of attempts to ascertain whether the normal justification thesis is satisfied for some claim to authority or not, But there seem to be strong intuitive reasons to believe that the normal justification thesis, at least if read as part of Raz’s overall package, is not an appropriate test for some intuitively appealing justifications of legal authority, One might argue, for example, that it misinterprets the social function as well as the grounds of justification of legal authority by focusing too narrowly on the law's mediatory function between individual persons and their individual reasons. Raz accepts that an adequate understanding of the nature of law has an important practical function. It will show itself to be adequate in enabling subjects of the law to react to the claims of the law in the most reasonable fashion * Raz’s position, then, must be open to hhallenges trying to show that his understanding of the nature of law is not the understanding that will necessarily best help people to act reasonably in the face of the law. Raz’s legal theory remains positivist, but it has reentered the realm of political philosophy. Kelsen’s pure theory, I will now argue, plays on the same turf Kelsen’s legal science Let us now tum to the question how Kelsen’s position relates to the three paradigms just outlined. The first and most obvious proposal for a classification of Kelsen’s positions would seem to be the claim that the pure theory is a form of methodological positivism. No other jurisprudent, after all, put as much rhetorical emphasis on the claim that jurisprudence must strive to be scientific. Kelsen goes so far as to argue that the pure theory is preferable to other legal theories in virtue of the fact >This is made quite explicit ibid, 63, and in Raz, ‘Authority, Law, and Morality’ (above, n. 22), 237. 14that it is the only theory of law capable of lifting jurisprudence to the status of a genuine ence *® But Kelsen’s understanding of what it would mean for jurisprudence to be scientific has proven to be rather elusive Many of Kelsen’s declared ambitions and convictions appear to fit well into the methodological positivist paradigm, The pure theory aims to give a general theory of the law that points out the essential features shared by all legal systems, it is not an interpretation of any particular legal order. The pure theory, moreover, is concemed to describe the law as it is, not to prescribe how it ought to be. It aims to be mere cognition and to stay clear of legal politics *° What is more, Kelsen famously claimed that “any content whatever can be law” and that law is nothing but a technique of social control *? It seems, then, that Kelsen’s pure theory of law must be a form of methodological positivism that tries to understand the law as akind of social fact This classification of the pure theory, however, clearly contradicts a central aspect of Kelsen’s understanding of legal science, namely his emphasis on the irreducibility of legal normativity to social fact. This irreducibility entails that legal theory cannot be an enterprise in descriptive sociology. According to Kelsen, the pure theory is a normative science. Legal science tell us what people's rights and obligations are according to the law. And in doing so it uses normative language. Examples of such language are statements like “Peter ought to pay 1000 dollars to Max” or “He who steals goods worth more than » See for example Hans Kelsen, Introduction to the Problems of Legal Theory. A Translation of the First Eéition of the Reine Rechtslehve or Pure Theory of Law, transl. by Stanley L. Paulson/ Bonnie Litschewski- Paulson (Oxford 1992), 1-5 151000 dollars is to be punished with a prison sentence of two years”. Like Hart, Kelsen rejected the view that the meaning of such statements is explicable in terms of habitual obedience of subjects to sovereigns, in terms of expectations about how courts will decide certain cases, or on the basis of the likelihood that someone will suffer harm as a result of certain acts. Kelsen’s arguments against such reductionism, however, are not based on the kinds of considerations that Hart invokes against Austin, Hart’s arguments against Austin emphasize that reductionist theories lead to an impoverished account of the structure of positive legal order that fails to explain certain of its key features: the variety of legal rules, the continuity of legal system, the relative independence of legel validity fom effectiveness, and so on But Hart claimed that he was able to put forward these criticisms within the framework of a jurisprudential approach that allows us to continue to conceive of the existence of law as a complex social fact and thus to hold on to the separation of law and morality Kelsen, by contrast, believes that the rejection of reductionism must go along with a rejection of the attempt to explain the existence of law as a kind of social fact ** He frequently engaged in polemics against legal sociology and some of the authors he attacked held views that are in certain respects not too dissimilar from Hart's * Kelsen © Ibid, 32-36. “See Heart, The Concept of Law (above, n. 10), 18-78 *'See Hans Kelsen, Der soaologsche und der juristsche Staatsbegnff Knitsche Untersuchung des Verhaltnisses von Stat und Recht (Tubingen 1928). “For example Max Weber See ibid, 156-170. Weber's sociological analysis of legal normativity can be read as an anticipation of Hart’s. Weber believes that legal rules are a species of social rules ancl he explains the existence-conditions of social rales in much the same way es Hart. His theory of legitimacy, moreover, can fairly be described as an attempt to offer an analysis of de facto authority. Some authors speculate that Hart's views were influenced by Weber's. See Nicola Lacey, A Life of HLA Hart The ‘Nightmare and the Noble Dream (Oxford 2004), 230-31 and 383-84; John Finnis, Natural Law and Natural Rights (sbove, n. 20), 9-18. 16argues that legal sociology is parasitical upon normative jurisprudence. A conception of law as social fact makes sense to us, we know what it is talking about, only because we already understand the concepts it uses from a normative jurisprudential point of view. But legal sociology cannot explain the normative meaning of the law as it is understood ‘by those who use legal statements to make claims upon each other.” Jurisprudence, in Kelsen’s view, must therefore be a normative science even though it can and ought to be kept separate from morality or, as Kelsen frequently putsit, from the theory of justice ‘The pure theory’s concept of legel validity expresses this demand by relating legal validity to an idea of justification. ** To show that a law is valid, according to Kelsen, is to show that it was enacted in accordance with the procedures authorized by a basic norm. This, of course, is standard positivist fare. But a Kelsenian basic nom, unlike a Hartian rule of recognition, does not merely serve the function to allow us to identify valid law. It also confers normative force on all norms that have membership in a legal system by stating that one ought to behave in accordance with these norms. Someone who makes a nomnative legal statement, according to Kelsen, assumes that the fact that the norm to which the statement refers was enacted in accordance with the basic norm justifies or confers binding force on the demand raised by the norm and expressed by the statement. Without this assumption, Kelsen believes, legal discourse would be meaningless. To "7 See Kelsen, Der soaologische und der junstsche Steatsbegn{f (above, n. 45), 114.204, Weber would pethaps not have disagreed with Kelsen’s claim. He pioneered the project ofa descriptive sociology of law. ‘But he clearly did not think of this project as a contribution to jurisprudence ‘© This has been emphasized by Joseph Rez, ‘Kelsen’s Theory of the Basic Norm’, in Raz, The Authority of Law (above, n. 31), 122-145, at 134 and Carlos Santiago Nino, ‘Some Confusions Swrounding Kelsen’s Concept of Validity’, in Paulson! Litschewski, Normativity and Norms (above, n 3), 253-261. Stanley Paulson, ‘The Weak Reading of Authority in Hans Kelsen’s Pure Theory of Law’, in Law and Philosophy, 19 (2000), 131-171 contains a very clear exposition of different indications of a normative concept of validity in Kelsen at 155-168. Paulson argues, however, that the normative elements of Kelsen’s view are at odds with his apparent reduction of nometive authority to mere empowerment to impose sanctions Acconing to the view I will defend, Kelsen’s political theory shows that his conception of authorization is rot necessarily “unresponsive to the problem of authority as we know it from the tradition” (ibid. 134), as Paulson suggests 17show that a legal norm is valid by showing that it was enacted in accordance with a basic nom, then, is to offer at least a conditional justification for the practical demand raised by that legal nom. It is not perfectly clear whether Kelsen thought it possible to presuppose a basic nom without having to endorse the nomative claims raised by that basic norm, ie without considering the law authorized by it to be genuinely justified at least to some extent. Much, though not all, of what Kelsen says certainly suggests that he aspired to keep the pure theory free of any genuine normative commitment.” But even if we accept that Kelsen intended the presupposition of a basic norm to be morally non-committal, we ‘will still be left with the question whether the intention is compatible with the theory of the basic norm and with the general idea that legal science is a normative science. How can legal science, despite the fact that it is a normative science and not an exercise in descriptive sociology, avoid being prescriptive or evaluative? Many positivist commentators, for example Alf Ross and Eugenio Bulygin, have argued that Kelsen’s account of legal normativity is incompatible with his positivist commitments and ought to be abandoned in favor of a more austerely positivist approach that does not rest on a normative conception of validity.’ Kelsen’s normative conception of validity, according to this view, is a regrettable leftover of Kantian influences on his early work that should be dropped in order to tum the pure theory into a genuinely descriptive and value-free positivist legal se nce. ” For a striking counterexample see Hans Kelsen, Allgemeine Staatslehre (Berlin 1925), 99, quoted in Paulson, “The Weak Reading of Authority’ (above, n. 48), at 166. * See Alf Ross, ‘Validity and the Conflict between Positivism and Natwal Law’, in Paulson/Litschewsli- Paulson, Normatiuty and Norms (above, n 3), 147-163; Eugenio Bulygin, ‘An Antinomy in Kelsen's Pure ‘Theory of Law’, ibid. 297-315, 18Not all scholars, however, have given such short shrift to Kelsen’s theory of legal nomnativity. Kelsen’s attack on legal sociology has found a contemporary echo in Joseph Raz’s criticism of Hart, Raz’s claim that any satisf ry account of legal normativity must be based on a conception of justified authority and not on attempts to specify the conditions under which norms can be said to exist in a sociological sense is inspired by the pure theory of law‘! The second classificatory suggestion, then, would be to treat Kelsen’s pure theory as an anticipation of the Razian paradigm, In adapting Kelsen’s conception of legal normativity, Raz develops a sophisticated reconciliation of the idea that jurisprudence is a practical science with the positivist commitment to value-neutrality: the conception of a ‘legal point of view’? Normative legal statements, Raz argues, are neither a species of practical judgments about what ought to be done, all things considered, nor are they descriptions of complex social facts. In using normative statements that report what ought to be done according to the law the lawyer therefore has to adopt and to speak from the point of view of the law, ie. from the point of view according to which the legal norms belonging to some legel system possess justified normativity. But this does not entail thet the lawyer is committed to evaluate or endorse the normative claims of the legal system whose point of view he is adopting. All he does is state, in Raz’s words, “what one has reason to do from the legal point of view, namely, what ought to be done if legal norms are valid norms.” Normative legal language, if used in this detached manner, is comparable to “statements made on the assumption that something is the case, for example, that a certain scientific theory is 9 See Raz, “Kelsen’s Theory of the Basic Noun’ (above, n. 48), Joseph Raz, “The Purity of the Pure ‘Theory’, in Paulson Litschewsli-Paulson, Normatity and Norms (above, n. 3), 237-252. 2 See Raz, Practical Reason and Norms (ebove, n. 33), 170-177. 19valid’? A normative legal statement is true, according to Raz, if the legal system whose al demand point of view is spoken from in fact contains a norm making the pra reported in the statement. It also expresses, even while it does not necessarily endorse, the law’s claim to authority. If the legal norm in virtue of which the statement is true happens to be a valid exclusionary reason for some addressee, in addition to being legally valid, it will be the case that the action demanded by the norm ought to be performed by that addressee because it is demanded by the law. But what is a valid exclusionary reason for some need not be such a reason for all subjects of the law. It is not a condition of the legal scientist's being able to make true or false normative legal statements that he commit himself to a view on this further justificatory issue Normative legal statements, Raz readily acknowledges, are often employed in 2 more committed way. People commonly use them to make demands on each other and the state or its representatives use them to make demands on us, Judges are professionally required to act on the assumption that the laws they apply ought to be obeyed by the subjects of the law. The detached uses are in a sense parasi al, hence, even if they are constitutive of the possibility of a legal science that is not directly evaluative. They are parasitical since there would be no use for a detached employment of legal statements on the part of legal scientists if people did not tend to make genuinely committed use of legal language and to treat the law as a standard of behavior. Perhaps the detached use is parasitical in the stronger sense that it must at least sometimes be reasonable for some people to treat the law as an authoritative standard of behavior in order for the detached use to be part of a valuable practice, But despite being parasitic , the class of detached nomnative statements has a central importance for legal theory. It identifies the minimum > Tid, 175. 20commitments a legal scientist has to make in order to be able to take the legal point of view, ie. to describe the law as an institution that necessarily claims, but that does not necessarily possess, legitimate authority. Raz’s interpretation of Kelsen’s theory of legal normativity is certainly intriguing and I will support its basic claim, namely the view that Kelsen’s concept of legal validity is intemally related to justification, However, Raz’s departs from Kelsen’s own view in one central respect. Kelsen’s basic norm makes a general attribution of normativity to the law. By presupposing the basic nom, the Kelsenian legal scientist assumes that all norms that have membership in the legal system, insofar as they are justified, are equally justified, that they are all justified for the same reason, and that this reason binds all subjects of the law equally. In other words, Kelsen implicitly rejects the piecemeal approach to the justification of authority. This rejection clearly makes it difficult to hold onto the view that the detached and non-evaluative use of normative legal statements can have paradigmatic importance in explaining legal discourse. That use appears to depend on the assumption that there is no general argument justifying the authority of all law over all subjects as well as on the correlative assumption that the lack of such a general argument does not establish that the law always fails to have justified authoritative fors If the law's normative claims are essentially general, we would seem to have no other choices than a general endorsement or a general denial of legal authority. The first would lead us into a form of natural law and the second back to some form of methodological positivism that denies the thesis that the law necessarily claims authority. If Kelsen’s view fails to fit either the methodological positivist paradigm of science nor the Razian conception of a non-evaluative jurisprudence, what remains of his aclaim to have offered a legal science? According to an answer that frequently appears in Kelsen’s writings the pure theory is a science because or insofar as it is not an ideology * Somewhat sumprisingly, this defense of the scientific status of the pure theory puts it into the close neighborhood of the political understanding of legal positivism that has been defended by, amongst others, Neil MacCormick and Frederick Schauer ** Thi: seness to political positivism is somewhat surprising insofar as Kelsen’s distinction between science and ideology emphasizes that a theory of the nature of law must not be defended by an appeal to the theory’s allegedly beneficial moral consequences, In Kelsen’s view, it is the mark of an ideology, as opposed to a sc ence, that it is adopted by those who advocate it because they consciously or unconsciously desire its practical effects, However, Kelsen puts a spin on his apparent rejection of the “beneficial moral consequences thesis’ that shows his concems to be somewhat different from those that drive Di son’s position. He claims that ideologies are characterized by the fact that they have a tendency to further the subjective interests of those who advocate them “ This suggests that the problem with an ideology is not primarily that it is adopted on the basis of or that it objectively serves some interest. Rather, the problem is that the interest it serves is suspect of being a partial or non-generalizable interest. * See Kelsen, Introduction to the Problems of Legal Theory (above, n. 39), 18-19; Kelsen, Der soaologische und der juistsche Staatsbe giff (above, n. 45), 205-253 © That Kelsen’s work confains traces of political positivism has, of couse, been noted before. But it is ‘usually assumed that Kelsen must have been making the same politcal point es Hart. See for example ‘Murphy, ‘The Political Question of the Concept of Law’ (above, n.9), 388, 2 See Hans Kelsen, The Pure Theory of Law. Translation from the Second German Eéttion, transl. Max Knight (Berkely 1970), 101-107, at 106: “Precisely this ant-ideological tendency shows that the Pure ‘Theory of Law is a true science of law For science as cognition has the immanent tendency of revealing its subject. Ideology, however, veils reality either by glorifying it with the intent to conserve and to defend it, or by misrepresenting it with the intent to attack, destroy, and to replace it by another. Such ideology is rooted in wishing, not in knowing, it springs from certain interests or, more comrectly, from interests other than the inferest in truth — which, of couse, is not intended to say anything about the dignity of those other interests.”It would seem, then, that there are two different ways of understanding the requirement that a scientific legal theory must not be chosen on the basis of an appeal to consequences deemed beneficial. It can be taken to mean that no interest whatsoever may directly figure in the choice of @ concept of law or it can be taken to mean that only interests that ought to be shared by all reasonable subjects of the law may justifiably figure in the criteria of choice of a concept of law. As we have seen, the pure theary, as a theory of normative legal discourse, rejects a piecemeal approach to the justification of legal authority and instead works with a general attribution of normativity to the law, an attribution that would seem to make it difficult to avoid a connection between the use of nomnative legal statements and genuine endorsements of the normativity of law. This suggests that the pure theory will at best be non-ideological in the weaker of the two senses outlined above. In order to show that the pure theory is scientific, in the sense of ‘non-ideological, Kelsen must show that the interests that motivate its ceptance are interests that we can reasonably attribute to all subjects of the law. A successful argument for this conclusion would automatically tum the pure theory into a critique of ideology directed at legal theories that fail this standard. An ideology, according to the classical understanding of the term, is more than just a mistaken system of belief Itis a system of belief that stabilizes relationships of authority which are structurally illegitimate since they prevent those subject to authority from making autonomous use of their own understanding in deciding how to act. Insofar as it is a critique of ideology, hence, the pure theory must automatically be a form of social criticism. What is more, it is likely to constitute a considerably more ambitious critical project than the Hartian attempt to prevent obsequious quietismAs we will see, Kelsen is not primarily concemed with the danger that the legal theories he rejects as ideological may occasionally put a mistaken veneer of respectability on a morally bad law. Rather, he believes that they will either tend to support morally indefensible, autonomy-denying institutional structures or, if they take a revolutionary form, lead to an unjustifiable denigration of the normativity of the law. The pure theary of law, then, is not just attempting to pave the way for frank moral criticism of bad legal content. It tries to help erode authoritarian political structures by withdrawing the ideological support they receive from conservative natural law theory. At the same time, however, it tries to defend the possibility of reasonable general habits of deference to egal normativity against revolutionary calls for a morally inspired dictatorship. ‘The pure theory, to quote Bemard Williams, is committed to the “enlightenment ideal of finding a stable and decent form of human community that was (to put it moderately) minimally dependent on myths” *" It claims that this form of community can be realized only in a political system that fully lives up to a certain ideal of the rule of law. What is more, Kelsen assumes both that the creation of a society that is stable, decent and minimally dependent on myth is a universal interest of overriding importance and that the realization of this interest will be furthered by acceptance of the pure theory. ‘There is no sufficient reason, I will argue, to accept the pure theory for someone who is not committed to this normative background of Kelsen’s argument, On a methodological level, hence, Kelsens position is very close to that of political positivists. But the substance of his view is a wealc form of natural law theory, albeit one that goes to great 7 Bemard Williams, ‘Relativism, History, and the Existence of Values’, in Joseph Raz, The Practice of Value. The Berkeley Tanner Lectures 2001 (Oxford 2003), 106-118, at 117 4lengths to accommodate the concems about the potential dangers of legal authority thet drive Hartian political positivism. Kelsen’s defense of the claim that the pure theory is a science insofar as it is non- ideological, it must be admitted, officially relies on an argument that disavows the nommative commitments I have just attributed to the project. What disqualifies all competitors of the pure theory as mere ideologies, Kelsen argues, is the fact that it is the only legal theory that makes it possible coherently to conceive of the unity and nomnativity of legal order. All other legal theories, Kelsen claims, either contain isresolvable logical contradictions, and thus show themselves to be mere rationelizations of subjective interests, or fail to explain the normativity of law in virtue of adopting some form of crude reductionism, Adoption of the pure theory, therefore, can be justified solely on the basis of a purely theoretical interest in truth. But as we will see, this argument tells ‘us more about the normative expectations Kelsen connects with his project than about the logical acumen of his opponents, Kelsen’s claim that the pure theory is non-ideological can only be defended, I will argue, once the normative aspirations that motivate Kelsen’s understanding of legal positivism are openly acknowledged. It is to these that we now have to tum. Kelsen’s legal politics Kelsen’s political works show him as a passionate defender of democracy and of liberal constitutionalism.* His attempts to defend democracy and liberal The main works to be analyzed heve are the following: Hans Kelsen, ‘Uber Steatsunsecht’, in WRT I, 957-1057, Hans Kelsen, Yom Wesen und Wert der Demokvate (Tibingen 1929), Hans Kelsen, ‘Wesen und 25constitutionalism, moreover, were not restricted to the writing of theoretical treatises. and constitutionalist Kelsen also took an active part in efforts to build democrat institutions. He drafted the Austrian constitution of 1920 and served for a while on the Austrian constitutional court.” He intervened, moreover, in the crisis of the late Weimar Republic, trying to defend the parliamentary system against the drive towards authoritarianism, before he had to leave Germany for Switzerland and later the US after the Nazi takeover of power Throughout his career, finally, Kelsen actively supported the ideal of an intemational legal order that would provide for binding mechanisms of peaceful conflict resolution amongst states.” ‘That an author who is commonly considered a legal positivist should have intervened in political debates is, of course, not in itself surprising However, in contrast to Hart's political interventions, Kelsen’s political-theoretical works, in keeping with the ambition to offer a critique of ideology, rather openly employ the pure theory as a tool of attack on political positions he rejected. Kelsen, in other words, is not wearing two different hats when speaking as legal theorist and when speaking as political philosopher. Rather, he tends to present his political-theoretical criticisms as corollaries to the pure theory of law. Hence, he must clearly have assumed that there is some kind of Entwicklung der Steatsgerichtsbarkeit, in WRT II, 1813-1872; Hans Kelsen, Wer soll der Hitter der Verfassung sein?, in WRT II, 1873-1912, Hans Kelsen, ‘Foundations of Democracy’ in Ethics, 66 (1955), 1.101 ° See for Kelsen’s role in the drafting of the Austrian constitution of 1920 Stanley Paulson, ‘Constitutional Review in the United States and Austria: Notes on the Beginnings’, in Ratio Juns, 16 (2003), 273.239, at 278.233 See Dyzenhaus, Legahty and Legitmacy (ebove, n. 2), 102-160. The onlybiography of Kelsen is Rudolf ‘Aladar Metall, Hans Kelsen. Leben und Werk (Wien 1969) "See Hans Kelsen, Das Problem der Souverdnatat und die Theorie des Volkerrechts. Bettrag 1 einer reinen Rechtslehre (Tibingen 1920); Hens Kelsen, Law and Peace in International Relatons. The Over Wendell Holmes Lectures, 1940-1941 (CambridgellVass. 1942). For a critical assessment of Kelsen’s theory of international law see Martti Koskenniemi, The Gentle Cuizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge 2001), 245.249 26relationship between the pure theory of law and the political values that he attempted to defend. ‘The exact nature of that relationship, however, is difficult to pin down, In the epigraph to this introduction Kelsen at least gives us a clue. He expresses the ambition to develop a theory of law ‘adequate to the idea of the rule of law’, What exactly could it mean for a positivist to claim that his theory of law is adequate to the idea of the rule of law? One possible answer to this question is to say that a theory of the law is adequate to the idea of the rule of law if it does not artificially or unnecessarily restrict the possibility of a full realization of the ideal of the rule of law. By contrast, a theory can tum out to be inadequate to the ideal of the rule of law ifit puts unnecessary obstacles in the way of its realization, for example by wrongly suggesting that a full realization of the ideal is not empirically viable. Kelsen indeed argued that impure theories of law do put scientifically unjustifiable ideological obstacles in the path of the full realization of the rule of law. The pure theory, even while not committing itself normatively to the ideal of 2 full realization of the rule of law, removes these obstacles. In so doing, it at least forces those who would take a choice against the full realization of the ideal of the rule of law to defend themselves openly on normative grounds © To make sense of this claim, it will be helpful to take alook at the Legal theories Kelsen argued against and to provide some information about the intellectual context of ® See for example Kelsen, ‘Wer soll der Hitter der Verfassung sein’ (above, n. 57), 1918-1922. The claim that the pure theory keeps open a morally important choice — here the choice between national sovereignty and lawful international order ~ is prominent as well in Kelsen’s work on international law. See Kelsen, Das Problem der Souverantat (above, n. $9), 314-320. 7his work The key context-related difference between the pure theory of law and contemporary legal positivisms is to be seen in the fact that Kelsen developed the pure theory as a theory of law and state. A theory of law and state does not restrict itself to an analysis of the concept of law or to an analysis of the law as an isolated social institution Rather, it includes an answer to a number of questions conceming the relationship between the state’s political power and the law. There are two main groups of such questions, The first group of questions concems the relation between the concept of state and the concept of law. Can we conceive of a state without conceiving of it as a legal order or as part of a legal order? Or would we be at a loss to identify a legal order unless we could already identify the political community or state whose legal order it is? The second group of questions is located on a normative level. A theory of the law-state relationship must ask whether a state’s actions always have to be legal to be legitimate or whether it is permissible for the state to set aside the law in extraordinary circumstances In case a theory of the law-state relationship supports the latter view, it might go on to ask whether there is at least a wealcer relationship between legality and legitimacy such that legality enhances the legitimacy of a state’s exercises of power, other things being equal Questions like these about the law-state relationship were of constant concern to German and Austrian legal scholars in the last decades of the 19" and the first decades of the 20" century, due to the fz that neither Wilhelmine Germany nor the Habsburg empire had fully grown out of an absolutist constitutional framework. To be sure, © See Wolfgang Schluchter, Enischeidung fiir den soaalen Rechtsstaat (ebove, n. 4), 25.89, Peter Caldwell, The Theory and Practice of Weimar Constituionalism (Durham C. 1997), 28questions of the law-state relationship are bound to arise in any political order * But the constitutional situation of late 19" and early 20" century Germany and Austria put them into especially stark relief The German and Austro-Hungarian Monarchs, despite the fact that they had been pressured to “grant” constitutions to their subjects, still successfully claimed, in effect, to be sovereign representatives of the state. What constitutionalism and commitment to the idea of the rule of law there was, was therefore considered to be contingent on the continuing willingness of the sovereign to abide by constitutionalist and rule of law principles. It was commonly recognized that the monarch possessed the power to govern by decree and bypass the requirement of parliamentary assent if he deemed such jon necessary. Kelsen viewed this situation as a case of arrested development towards a truly constitutional order. But this view was not shared by all German jurisprudents of the time, Georg Jellinek, arguably the most influential German legal and constitutional theorist of the Kaiserreich, reacted to the constitutional situation by interpreting it as a symptom of a general and unavoidable tension between state and law® According to Jellinek, the state cannot be fully comprehended from one particular scientific perspective. It is unavoidably both a fact of power that can only be understood sociologically and a normative order bound to the rule of law. Dogmatic jurisprudence conceives of the state as a normative order, but in so doing it does not provide us with a fully sufficient theory of the state. The normative order of the law is dependent, for its creation and protection, on the state as a fact of power. While the state as a fact of power has the primary function of creating and stabilizing normative order, it cannot reasonably This is achnirebly ilustrated in Neil MacCormick, “The Interest ofthe State and the Rule of Law’, in Neil ‘MacCommick, Questoning Soveregnty (Oxford 1999), 27-48 © See Georg lellinek, Allgemeine Staatsehre (Darmstadt 1960, fast published 1900), 29assume an unconditional commitment to act in accordance with the rule of law since this would defeat its ability to effectively protect normative order. For Jellinek, the state's commitment to normative order, to what Lon Fuller Is the congruence of official act and declared law,® is the result of a voluntary obligation (Selbstverpflichtung) that is subject to tions of which the state itselfis the judge” Dualist accounts of the law-state relationship remained influential in Germany even after the democratic revolution of 1918. The views of Kelsen’s main theoretical opponent during the Weimar Republic, Carl Schmitt, are a case in point. Schmitt radicalized the dualist scheme and gave it what he thought of as a democratic twist. The radicalization is owed to the fact that Schmitt rejects even the weal conception of a link between legality and legitimacy, ie. the idea that legality enhances the legitimacy of the state’s actions, other things being equal The democratic twist is the result of a replacement in Schmitt's constitutional theory of monarchic sovereignty with popular sovereignty, conceived of as a sovereign dictatorship that exercises the people’s « constituent power, ‘The radicalization and the democratic twist are related in the following way. Jellinek’s state has the power to decide whether there is an exceptional situation, a threat to public order and security, that warrants suspension of the rule of law. But this decision, though sovereign, must be informed by the idea that the primary function of the state as. fact of power is the protection of normative order. In other words, suspensions of legality “See Lon L. Fuller, The Morality of Law. Revised Editon (New Haven 1964), 81-91 ©" Kelsen cniticized this view repeatedly. See Kelsen, Der socologische und der jurtstische Staatsbegniff (above, n. 53), 114140; Kelsen, Introduction to the Problems of Legal Theory (above, n. 39), 97-106 See Carl Schmitt, Politische Theologee. Vier Kapttel aur Lehre von der Souveréntat (Berlin 1922); Can! Schmitt, Verfassungslehre (Berlin 1928); Carl Schmitt, Der Begriff des Politischen. Text von 1932 mt einem Vorwort und drei Corrollarien (Berlin 1963), 30have to serve the values protected by the common liberal understanding of the rule of law. They are necessary only because it is impossible to legally provide for all future sumstances in advance, Schmitt’s popular sovereign, by contrast, is not bound to any antecedent understanding of what it means for there to be a threat to public order and security. Any such understanding, according to Schmitt, is itself inherently contestable. ‘The democratic sovereign dictator acting on behalf of the people as constituent power must therefore actively define what counts as a threat to public order and security in taking the decision on the exception. In other words, in taking the decision on the exception the democratic sovereign dictator is determining the identity of the people, ie of those who follow him, success being the criterion of correctness of the determination. A threat to public order, in this view, is that which is excluded as the other in a decision on the exception. Schmitt argues that it is the inalienable prerogative of any political community to take such constitutive excluding decisions. The capacity to take them is what makes a community a political community. Any attempt to reduce the state to nomnative order, therefore, is a direct assault on a political community's right to political self-determination. The positive law, in tum, is legitimate only insofar as it faithfully expresses the identity formed by the decision on the exception. ‘The pure theory can be read as a general reply to dualist accounts of the law-state relationship in all their forms. Kelsen’s answer to dualism is the thesis of the identity of law and state Kelsen introduces the identity thesis as an answer to the conceptual question of the law-state relationship. He argues that it is impossible to conceive of the state as existing prior to and independent of legal order. We cannot attribute any act of a © See Kelsen, Introduction to the Problems of Legal Theory (above, n. 39), 97-106; Hans Kelsen, Allgemeine Staatslehre (Berlin 1925), 16-21, 71-16, Kelsen, Der sodologische und der junistsche Staatsbegrff (above, n. 53), 114.204. 31natural person to the state, Kelsen claims, unless that act is legally authorized. A state and its legal order, he concludes, are therefore identical. A sound theory of the state, as a result, has to be a theory of the state as normative order. Os, put in German, any scientifically defensible Staatslehre or doctrine of the state will have to be a Staatsrechtslehre, atheory of public law that is an integral part of general jurisprudence How, then, does the identity thesis remove ideological obstacles to a full realization of the rule of law created by a dualist account of public law? If the identity thesis is cognized as true, Kelsen argues, the dualist claim that the state or its alleged representatives can suspend the positive law, and still continue to act in a public capacity, ‘will tum out to be meaningless. The pure theorist, since he accepts the identity thesis, is forced to interpret what claims to be a suspension of the law either as an illegal act or as a defect in the validity of the law that is allegedly suspended. According to the pure theory, those who claim to act for the state in suspending the law have to be understood to lay claim to a standing power to disregard the law as they see fit without having to fear any legal consequences. But this power can only exist if the law that is allegedly merely suspended lacks genuine legal force to begin with A ruling elite that lays claim to a power to suspend, Kelsen argues, should not be allowed to legitimize its governs e by pointing out that it pays respect to the rule of law under ordinary circumstances or by claiming that its exceptional actions are protecting the integrity of legality. Duelist legal theories deny that we must choose between either affirming or denying the validity of the law that can allegedly be suspended by the state. This denial, however, has the effect of postponing the choice in constitutional reality between an autocratic legal order thatleaves wide discretion to the rulers and a constitutional order that makes constraints of legality effectively binding on those who exercise political power ‘The pure theory, Kelsen claims, remains scientific and non-evaluative since it is ‘not committed to the view that we ought to choose constitutionalism over autocracy.” Neither, it seems, is it to be preferred over dualism becanse it is adequate to the rule of law. Dualism, rather, in addition to being inadequate to the idea of the rule of law is, in any case, intemelly incoherent and must therefore be rejected as unscientific. The claim that the pure theory is adequate to the idea of the rule of law is therefore perfectly compatible, Kelsen argues, with the view that there is sufficient reason to adopt the pure theory on grounds that have nothing to do with its alleged adequacy to the idea of the rule of law. This conclusion, however, must certainly be read with care. Kelsen’s argument raises at least two problems that may seem to cast doubt on the idea that the pure theory can be justified on the purely methodological ground that itis the only coherent theory of legal order. First, Kelsen’s claim that dualist theories of the law-state relationship conceal a crucial political choice between the realization of the ideal of the rule of law and a more authoritarian and discretionary system of governance can have critical force only if we assume that some genuine value is necessarily being disregarded in the choices that Kelsen claims dualists implicitly advocate. This value, moreover, must be a value intemally related to progressive legalization in the sense that progressive legalization must necessarily further its realization. To say that there are intemal values of legality of this kind is not the same thing as to say that it cannot be reasonable, all things considered, See Kelsen, ‘Wer soll der Hiiter der Verfassung sein?” (above, n. 57), 1921-19: Law (above, n.55), 106. >; Kelsen, Pure Theory of 33to take a general and conscious choice against their fullest possible realization, But the fact that Kelsen can make this minimal admission is no evidence against the impression that the pure theory is animated by an ideal of the rule of law Dualists will certainly complain that the norm-exception distinction is not an expression of a dispute over the relative weight that values intemal to legality can legitimately claim in our overall picture of good political order. It is a dispute over whether there are such values, over whether these values are independent values, over whether they can have any force in truly exceptional situations and, by implication, over whether an unconditional commitment to them can be reasonable. In the light of these observations, we should at least suspect that the pure theory is designed to be adequate to the idea of the rule of law in a much stronger sense than Kelsen’s official argument admits. The pure theory, it would seem, does not just remove an ideological obstacle to the realization of the rule of law. It favors forms of governance that better conform to ‘what seems to be Kelsen’s ideal of legality. Should it tum out that the pure theory is not the only way to coherently describe the law, its defense would therefore have to come to rest on its service to this ideal It is certainly no accident that Kelsen’s positivist successors objected to the thesis of the identity of law and state, even though they did not usually see in it anything but a source of technical mistakes in a positivist theory of legal system, Raz and Hart, for example, both implicitly side with dualism. They argue that Kelsen’s conception of the unity of legal system does not just lead to counterintuitive but to downright absurd consequences, They blame what they see as Kelsen’s failure to come up with a satisfactory account of the unity of legal system on his refusal to accept that the 34individuation of legal systems is dependent on the prior individuation of the states whose legal systems they are” If Raz's and Hart's arguments against Kelsen’s conception of the unity of legal system are correct, we would have to conclude that his attempt to employ the pure theory of law for political purposes is not just a regrettable overreach into the field of normative political theory that be remedied by a simple withdrawal into Kelsenian jurisprudence proper. Rather, Kelsen’s particular variant of legal science — including his conception of the law-state relationship — and his political-theoretical arguments would seem to stand and fall together. Kelsen’s identity thesis and the rule of law Whether Kelsen’s legal and his political theory stand or fall will depend on whether it is possible to make sense of Kelsen’s doctrine of the identity of law and state.” The thesis is introduced as a conceptual claim. But what is its relation to the normative question of the law-state relationship? Kelsen himself describes the doctrine as an attempt to make jurisprudential sense of the old British constitutional maxim that “the king can do no wrong”.”? He observes that this principle is open to two different interpretations. It may simply state that the monarch as a natural person is, as a matter of positive constitutional law, exempt from any form of judicial scrutiny. What it means to say that the king can do no wrong, thus, is 7 See HLA. Hast, ‘Kelsen’s Doctrine of the Unity of Law’, in HLA. Hart, Essays in Jurisprudence and Plalosophy (above, n. 14), 309-348; Joseph Rez, The Concept of Legal System. An Introduction to the Theory of Legal System (Oxford 1970), 100-108. Kelsen does not claim that all legel systems are states but he argues that all states are legal systems. See Kelsen, Introduction to the Problems of Legal Theory (above, n. 39), 97-106, The fullest development of the thesis is to be found in Kelsen, Der sodologische und der juristische Staatsbe gnff (above, n. 53). ® Hans Kelsen, ‘Uber Steatsunrech!’ (above, n. 51), 960-61 35that the law is not enforceable against him. According to a second reading, the claim that the king can do no wrong refers not to the natural person of the king but to the artificial person of the state that is represented by the king. This second reading, in Kelsen’s view, does not just exchange the principle’s object of reference, It also changes its content, In relation to the state, the principle no longer expresses an exemption from the enforcement of legal rules but an incapacity. To say that the state can do no wrong is to claim, according to Kelsen, that itis impossible for the state to act illegelly since itis impossible for jurisprudence to form a coherent conception of the state that makes it possible to attribute to the state a will to act illegally.* While the changing content of the positive lawis a product of the will of the state, the will of the state can express itself only in legal form. The pure theory of law is an attempt to draw out the implications of this second reading of the principle and to tum them into the foundation of a theory of the rule of law. Kelsen believes that duslist theories of the law-state relationship mistakenly transfer the positive constitutional position of the person of the monarch in an absolutist system to the person of the state and elevate it into the status of an essential trait of that person.” The state, as a transcendent source of all positive law, is then taken to have the power to exempt itself from the observance of the positive law if it so chooses. This claim, in Kelsen’s view, is nothing but a way for those who control government to make sure that they need not respect the positive law to the fullest extent if doing so does not * Ibid , 960-61 Much of Kelsen’s earlier work is taken up with relentless combat against uncritical personification of the state. See for example Kelsen, Der sozologische und der juristsche Staatsbe gniff (above, n. 53), 205-253. ™ See Schmitt, Polttische Theologie (above, n. 66), 19: “The exceptional case reveals the nature of the state's authority most clearly. The decision separates itself fiom the legal norm and (to formulate paradoxically) the authority proves that at does not have to act lawfully in order to create law.” (my translation) 36suit their interests. But this criticism, as I have already suggested, invites the suspicion that Kelsen is begging the question against his dualist opponents by smuggling normative ‘baggage into his allegedly scientific legal theory. This suspicion was first voiced by Carl Schmitt, Schmitt attributes to Kelsen’s project an implicit normative core, namely the aim to fully replace ‘the rule of men’ with a ‘mule of law’. Kelsen, Schmitt observes, wants to subject the state to a ‘principle of legality’ demanding complete conformity of all its actions with the positive law. But ‘Schmitt claims that Kelsen’s principle of legality, in virtue of the pure theory's emphasis on total value neutrality, necessarily fails adequately to express the normative ambition upon which it is founded, According to Schmitt, the commitment to value-neutrality gives rise to an “inner heterogeneity” of the pure theory, an unavoidable tension between normative aims and its positivist approach to the question of the nature of Schmitt’s attack rests on @ powerful intuition that is apparently violated by Kelsen’s identity thesis, at least if we take the thesis to have implications for the nomnative question of the law-state relationship. It seems that the idea that the legality of acts of state can confer added legitimacy on those acts is meaningful only if we allow for the possibility of illegal of state, Legality, in other words, can serve as a factor of justification only if it is a normative standard a state’s actions can possibly fail to meet The state must, then, be able to act illegally, but this entails that the state cannot be identical with the law insofar as the law is a meaningful normative standard. The claim that the state is incapable of acting illegally, Schmitt concludes, is defensible only in a 7 Tid, 26.29. See for more recent versions of this criticism Dyzenhaus, Legahty and Legitimacy (above, m 2, 137-160, Koskenniemi, The Gentle Cuiizer of Nations (above, n. 61), 245-249; ‘Schluchie, Entscheldung fir den sonalen Rechtsstaat (above, n. 4), 42-44 37form that renders it empty from a normative point of view. It can be true only if we interpret the term ‘legal’ in an extremely undemanding sense according to which any final decision taken by a formally authorized organ of state is to be considered legal, even if it appears to violate some material legal standard.’* The conceptual identity thesis, if true, apparently eliminates the space that would allow us to ever meaningfully claim thet the legelity of an act of state goes at least some way towards justifying that act of state. It ‘would seem to follow that the pure theory, insofar as it holds to the truth of the identity thesis, isthe perfect antithesis to alegal theory adequate to the ideal of the rule of law. It has often been suggested that the failure Schmitt attributes to Kelsen is indicative of a general shortcoming of positivist legal systems theory.” Any attempt to identify legal order with a self-sufficient system of positive rules and to deny the distinctness of the state as an organization of power and the law as normative standard will necessarily lead to a conception of legality emptied of all genuine practical significance and serving only to normalize the exception. Contemporary positivists are likely to reply that this attack on positivism can easily be disarmed, The normative emptiness of the identity thesis can lead to a problem of inconsistency only if its truth is taken to have normative significance, i.e. if the identity thesis is employed in the defense of an ideal of the rule of law. But positivists will, of course, argue that positivism is not claiming to offer such a defense 7 The claim that the identity thesis is normatively empty is ftequently voiced in the literature. See for example MacCormick, The Interest ofthe State and the Rule of Law (above, n. 62), 40-44. Lon Fuller, A Reply to Critics, in: Lon Fuller, The Morakty of Law. Revised Edition (New Haven! London 1964), 181- 24) frequently refers to Kelsen's identity thesis as @ kind of sub-positivism. Kelsen allegedly asserted that “anything - even a grunt ora groan is law provided only it comes fiom a source identified by the Rule of Recognition” (at 198). Fuller remarks: “I am quite aware that my critics among the New Analytical Jurists do not explicitly embrace the doctrine of the identity of law and state. But I ask in all seriousness, what tenet of their philosophy, what principle of standard enunciated by them, offers a stopping place short of this ultimate reductio ad absurcum of the positivist point of view?” (at 236) See for example Dyzenhaus, Legality and Legtmacy (ebove, n.2), 6-17, 38It would appear, moreover, that it is perfectly possible for a positivist to go along with Schmitt's diagnosis of the normative emptiness of the identity thesis. Raz, for example, dryly observes that “if goverment is, by definition, goverment authorized by Jaw the rule of law seems to amount to an empty tautology, not a political ideal” © But Raz would not take this to be a criticism of Kelsen’s identity thesis. Rather, he seems to think of the identity thesis as a part of an argument debunking the claim that conformity of acts of state with some ideal of the rule of law is either a necessary or a sufficient condition of the legitimacy of those acts, Raz goes along with the gist of the identity thesis as a conceptual claim: “Actions not authorized by law cannot be the actions of government as a government. They would bbe without legal effect and often unlawful.” But this acknowledgment, according to Raz, at best leads to what he calls the “law and order interpretation of the rule of law’, ie. the claim that individual citizens or groups of citizens, including “powerful people and people in government”, ought to obey the law ®! Taken in this sense, the rule of law, Raz claims, does not put any interesting normative constraints whatsoever on actions that are attributable to the person of the state on the basis of formal rules of competence. When ‘we invoke the rule of law as a political ideal, Raz observes, we clearly have in mind more substantive restrictions on the state's actions that wzens from effectively protect arbitrary exercises of state power. Raz argues that insofar as such descriptions of the aims of the rule of law are not mere platitudes which stand in for one’s preferred policies, they refer to certain virtues of legality that are conditions of the successful pursuit of social goals through legal means, ® Joseph Raz, “The Rue of Law and its Viste’, in Raz, The Authority of Law (above, n. 31), 210-229, at 22 ibid, 2 13 39to alist of features that make the law into a good instrument of policy by enabling it efficiently to guide the behavior of the individuals subject to it. Any use of the law for political purposes will have to respect these features to some degree in order to be effective. But the principles of the rule of law, understood in this instrumental fashion, constitute no self-standing political ideal. If maximum fidelity to the virtues of the rule of law should conflict with the substantive purposes which the law is meant to serve it ‘would therefore be a practical mistake, Raz believes, to give unthinking priority to the principles of the rule of law. On the other hand, even perfect conformity of law wath the virtues of the rule of law will not necessarily protect subjects of the law fom substantively arbitrary or morally obnoxious rule. The moral value of the virtues of the rule of law is therefore in the Last instance dependent on the moral value of the substantive goals the law is to serve ‘The fact that the identity thesis apparently eliminates the conceptual space for the aim that legality confers legitimacy on acts of state fits in well with the general drift of Raz’s argument, While it may be true thet only formelly authorized acts can be identified as acts of state, this fact tells us very little about the justifiebility of those acts. On the other hand, the fact that the legal threshold for attributions of acts to the state is extremely low effectively blocks the conclusion that conformity with the vistues of the rule of law should be considered a necessary condition of the public quality of an act. The identity thesis thus reinforces the general argument that respect for the virtue of the rule of law hhas to be mindful of the fact that this virtue is valuable only insofar as it furthers the realization of substantively valuable political goals the state rightly chooses to pursue through legal regulation 40From a Razian point of view we would have to conclude that Schmitt’s criticism against what he took to be Kelsen’s project is perfectly justified Both Schmitt and Raz share the intuition thet the rule of law can be a meaningful ideal only if the state can be said to have the capacity to violate or circumvent it This view goes along, in both ‘Schmitt and Raz, with the idea that the state may have good reason to do so, under certain sumstances. The value of the rule of law, Raz claims, is in any case subordinate to the substantive political aims to be realized by the state and some of these aims may not be realizable through the rule of law ®? What accounts for the differences between Schmitt and Raz, it seems, is that they have different views conceming the way in which conflicts between the rule of law and other political aims are to be settled. Raz believes thet positive legal order can legitimately make internal tradeoffs between the rule of law and other policy goals. Schmitt, on the other hand, tends to emphasize the importance of maintaining a strict distinction between states of normality, in which the state gives full effect to the rule of law, and states of exception in which the state brushes it aside altogether in order to establish the foundations of legal normality by dictatorial means. Both Schmitt and Raz would appear to agree, nevertheless, that Kelsen’s pure theory should not be regarded as the legal theory adequate to the idea of the ‘rule of law state’ ‘And in both cases, the reason for this assessment is the view that the identity thesis could be true only ifit were normatively empty. ® Schmitt would have wholeheartedly agreed with Raz's claim that “if the pusuit of certain goals is entiely incompatible with the rule of law then these goals should not be pursued by legal means”. (Ibid, 229) This means, presumably, thet they should not be pursued by legal means which exhibit the virtue of the rule of law in even the limited Razian sense. Schmut claims that some of the most fundamental goals to ‘be pusued by the state are such that they should never be pursued by egal means. Once we assume that the {judgment on whether a situation s such tat it must be dealt with by non-legal means is not itself subject to legel regulation the rest of Schmitt's view pretty much follows, atIn what follows, I want to challenge the view that the identity thesis, as developed by Kelsen, is normatively empty and to defend the claim that the pure theory is a legal theory adequate to the ideal of the rule of law. Schmitt is right to attribute to Kelsen the ambition to develop a legal theory conducive to the realization of a much stronger ideal of the rule of law than contemporary positivists would be happy with. The pure theory rejects the instrumental conception of law embraced by Raz insofar as it treats the ideal of the rule of law as constitutive of legitimate public authority. But I disagree with Schmitt's view that Kelsen’s attempt to relate the pure theory to @ non-instrumental conception of the rule of law introduces an ‘inner heterogeneity’ into his legal-theoretical project. The intuition that the state has to be able to act illegally for the principle of legality to be a meaningful normative standard, rests on a simplified and misleading understanding of the identity thesis. It enshrines a theory of the state and of its relations to the law that is bound to perpetually reproduce the norm-exception dialectic that provides Schmitt’s legal theory with its dangerous punch. Once the sophisticated way in which Kelsen develops the identity thesis is fully drawn out, we will see thet the Kelsenian need not retreat, in the face of Schmitt's criticism, to a denial of a necessary link between legality and justified normativity. Rather, so I hope to be able to show, the identity thesis is the only coherent way of defending such a link Kelsen’s pure theory, I will argue, is best read as an attack on the view that positive legality is deserving of respect only insofar as it perfectly expresses or realizes, some metalegal ideal of social justice Kelsen characterizes natural law theory as a family of views that claim that one should refuse to grant the title ‘law’ to legal systems the content of which falls short of some absolute conception of good or just social order.In other words, natural law theory, as Kelsen defines it, is committed to a denial of the autonomous value of the rule of law and by implication the autonomy of jurisprudence as ‘an intellectual endeavor that can contribute to the creation and maintenance of a reasonable society. There is a way of interpreting positivism according to which positivism is essentially a misror image of this view. Positivism, so interpreted, denies that we should withhold the title of law from systems of social rules that fail to live up to a substantive standard of justice But it agrees with the natural lawyer, as Kelsen describes him, that the practical authority of such systems exclusively depends on whether they conform in content to some standard of moral evaluation that is external to the positive law. Moreover, both positivism and natural law theory as Kelsen understands it, taken as mirror images, have a certain affinity to the distinction of law and state, or a tendency to emphasize the discontinuity between the ‘law and order state’ and the ‘rule of law state’, The thesis that the positive law can be legitimate only if it conforms with values extemal to positive legality can easily be tumed into the view that it may well be sufficient for the legitimacy of exercises of political power that they are motivated by the right kind of moral reasons *? Lawfulness, under such a view, is at best a circumstantial attribute of the legitimacy of exercises of political power. If one’s actions are taken in the name of a higher moral ideal, compliance with positive legal norms may seem unimportant from a normative point of view. If one is a positivist claiming to act on © The classical formulation for such a position is Locke’s definition of prerogative as “power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it”. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge 1988), 375) In faimess to Locke, it has to be stressed that prerogative is clearly limited to ection in particular instances not sufficiently provided for by general laws. But the idea can clearly be given a much wider application once the intemal relation between the rule of law and the liberal reading of the public good! is severed. See for a Ihstorical account of this process Carl Schmitt, De Diktatu Von den Anfangen des modernen Souveranatdtsgedankens bis um proletan schen Klassenkampf (Berlin 1928) 43behalf of such ideals, one will be on guard against ‘obsequious quietism’, if one is a natural lawyer, on Kelsen’s understanding, one will take the view that the positive legal order one feels morally entitled to disrespect lacks the quality of genuine law. But the practical consequences of both views are likely to be very similar. Kelsen, I will argue, was afraid of such an attitude towards the legal order for two interrelated reasons. First, he believed that it incapacitates the essential function of positive law. Positive law, in Kelsen’s view, is at bottom an instrument for the peaceful and legitimate arbitration of social conflicts in a pluralist society. But positive law cannot play this sole ifits authority is perceived to be dependent upon extemal moral or political sources of value, Secondly, Kelsen believed that the attitude does not just incapacitate the law's mediating role, it is also, at bottom, incompatible with democracy since the function of democracy is the same as the law’s. Kelsen, to sum up, was concemed to deny a necessary relation between legality and justice because he wanted to attack the idea that positive law is legitimate, that it merits respect, only as long as its content conforms to some absolute standard of justice extemal to positive law. Put differently, Kelsen wanted to debunk the idea that there is a necessary connection between legality and extemal justice in order to protect an autonomous relation between positive legality and political legitimacy. Kelsen invested the pure theory with the hope that adopting it as a conceptual framework to think about state and law would increase the availability and attractiveness of peaceful solutions to political conflicts. The reason for this hope is that the separation between the relation of legality and legitimacy and the relation of legality and justice cuts two ways. It does not just attempt to affirm that legality is intrinsically valuable. It also 44opens the law for peaceful legislative reform by severing the tight connection between justified normativity and substantive justice that Kelsen takes to be characteristic of natural law theory. And insofar as the preservation of legal order and continuity is always valuable in some respects, jurisprudence should approach the choice between legality and illegality from a particular perspective. It ought to, or so Kelsen believed, put the burden of proof on the advocate of illegality instead of pretending that the value of legality is a mere function of how well it serves some substantive conception of the good. Itis to be admitted that Kelsen himself never explicitly described his project in these terms, But I hope to be able to show that my interpretation is not developed out of thin air. The reading of the pure theory I will propose has one major advantage. It shows that Kelsen’s political interventions and his work in constitutional theory are based on his legal theory and it thus discharges him from the accusation of inconsistency or dishonesty that are frequently leveled at his political interventions. We are not forced to choose, in my view, between Kelsen the legal theorist and Kelsen the political theorist. Moreover, the position one arrives at by adopting the interpretive strategy I propose is interesting in its own right. It shows how the different strands that drive the positivist project can be reintegrated by reading them as elements of a powerful theory of political legitimacy capable of standing on its own feet * ® A few important qualifications are in order. I do not intend fo rise the claim thet the interpretation offered here is the only possible approach fo understanding Kelsen, nor even the one that best fits ell the textual material. I want to defend the much more limited view that Kelsen’s political works can fruitfully bbe related to cerfain strands in his legel theoretical oewre and that the resulting overall position is interesting and attractive legal anc political theory. No less an authority than Stanley Paulson has remarked that Kelsen's “is a compus of writings rich enough to sustain an anay of readings, reflecting different philosophical interests ancl persuasions” (Paulson, The Weak Reading of Authonty, above, n. 48, at 171.) Exegeticelly the reading offered here is @ possibility, though one that | hope is infezesting enough to menit attention. I wall focus on Kelsen’s work duwing the 1920's and 1930's, bu I will occasionally make use of later works. As far as I can see, the main themes that I will not, however, include any discussion of Kelsen’s late skeptical phase after 1960. I wall not make any’attempt to enter debates about the 45‘The structure of the thesis will be as follows. In chapter I, I will attempt to analyze Kelsen’s claim that the pure theory is an autonomous science of the law. This chapter has a largely negative and agenda-setting function. It aims to show that the autonomy of jurisprudence in Kelsen cannot meaningfully be understood as a purely ‘epistemological’ or ‘methodological’ principle. The assumption of the autonomy of jurisprudence, expressed in the act of the presupposition of a basic norm, can be justified, in Kelsen’s view, only if we can reasonably make general attributions of justified nomnativity to the positive law qua positive law, ie. only if it is possible reasonably to assume the existence of intemal values of legality independent of substantive justice However, Kelsen’s general legal theory, as presented in the Reine Rechtslehre, does not develop a positive count of the features of legality that make the act of presupposing a basic norm reasonable. Kelsen thus has to identify the features of legality that enable it to legitimate exercises of political power that take place in lawful form and to explain why these features have legitimating force. This account needs to remain independent of a substantive ideal of social justice. In chapter I, I will argue thet Kelsen’s development of the thesis of the identity of law and state contains the outlines of such an account, Kelsen’s basic conception of the rule of law, however, is insufficient fully to justify the normative claims of the law. Kelsen himself therefore combined this conception with a theory of democracy and a theory of constitutional adjudication which will be discussed in chapter III and IV respectively. Both democracy as well as nnstitutional adjudication can be justified, cording to Kelsen, on the basis of the idea pperiodization of Kelsen’s work. I will assume, rather, that the pre 1960 works can, for my purposes, be ‘heated as a unity. For the question of periodization see Stanley Paulson, ‘Four Phases in Hans Kelsen's Legal Theory? Reflections on a Periodization’, in Oxford Joumal of Legal Studies, 18 (1998), 153-166, 46that they are institutions necessary for the full realization of the values of legality Together with the basic account of the rule of law, they form the indispensable ingredients of a constitution that what I will call a utopia of legality, i.e. of a political order in which the legality of a state's acts is a fully sufficient condition of their legitimacy In my concluding chapter, I wil return to the question about Kelsen’s relation to contemporary positivism and ask what general contribution his legal theory might make to current jurisprudential debate. 47Il. The Pure Theory of Law — Science or Political Theory? The preface to the first edition of the Reine Rechtslohre published in 1934 contains Kelsen’s most famous description of the character of his legal theoretical project. It declares that the primary aim of the pure theory of law is to raise jurisprudence to the level of a genuine science, a science characterized by the hallmarks of objectivity and exactitude, Kelsen claims that “the pure theory of law aims solely at the cognition of its subject-matter.” It is concemed to describe the law as itis, not to tell us how it ought to be. The pure theory is thus based on a methodological principle that, Kelsen argues, should “appear obvious” but that has nevertheless so far been neglected: We have to free legal cognition of all “foreign elements”, “to eliminate from this cognition everything not belonging to the object of cognition precisely specified as law”! However, the sense in which this methodological principle is uncontroversial is unlikely to mark the difference between the pure theory and other jurisprudential approaches and to explain the superiority of the former over the latter. Legal theorists of different stripes disagree, as we have seen, over what is to count as “the object of cognition” specifiable as law. The methodological claim that legal theory should focus on analysis of the law and exclude from its view everything not belonging to that object of cognition cannot preempt such debates. It presupposes an answer to them, The claim that legal theory must be a science can become an operative methodological principle only once we know what it is supposed to be a science of A theory of the law should be defended as the best theory of what we can identify, on pre-theoretical grounds, as law or } Hans Kelsen, Introduction to the Problems of Legal Theory. A Translation of the First Ecbtion of the Reine Rechislehre of Pure Theory of Law, transl. by Bonnie Litschewski-Peulson/ Stanley L. Paulson (Oxford 1992), 1 48legal practice, Kelsen, by contrast, typically argues that what counts as law is whet the pure theory can identify as such since no other way of identifying the law would be entific” He goes on to dismiss criticism of the pure theory as a form of emotional hostility to reason that need not be taken seriously? One is tempted to conclude that Kelsen’s talle about science simply begs the question against his opponents. Before we accept this verdict, however, we are obliged, as charitable interpreters, to take a closer look at Kelsen’s account of what makes the pure theory scientific. His talk about the scientific nature of the pure theory may, after all, be backed up by a more interesting, non-question begging argument ‘The claim that the pure theory is a scientific theory of law refers to three distinct characteristics: the fact that it is a normative and not a natural science, the pure theory's separation from the theory of justice, and finally the claim that it is a general legal theary that describes a structure common to all positive legal systems The first characteristic arises from Kelsen’s view that jurisprudence must be clearly separated from the natural or empirical sciences * Kelsen’s conception of natural ence is very broad. It encompasses all forms of inquiry, including the empirical social and human sciences, which aim to unearth causal regularities and explain and predict ? See for a similar observation Joseph Rez, ‘The Problem about the Natwe of Law’, in Joseph Rez, Ethics in the Public Domain, 195-209, at 202 and Joseph Raz, “The Purity of the Pure Theory’, in Richard Tux! ‘William Twining (eds.), Essays on Kelsen (Oxford 1986), 79-97, at $3: “Kelsen’s defence of the sources thesis is largely dependent on the view that the ‘scientific’ study of law would not be possible if the ‘identification of law tumed on moral axgument. But this argument is clearly fallacious. The study of law ust be adjusted to its object. If its object cannot be studied ‘scientifically’ then its study should not strive tobe scientific.” > See Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 2. Kelsen claims that “in the battle against the Pure Theory of Law, sober motives of scientific enquiry are secondary to, above all, politcal motives - that, motives highly colowed by the emotions." Thid, 7-14, 49observable events on the basis of these regularities * Jurisprudence, by contrast, is a nomnative science that describes the structure and the content of a certain species of nomnative system. One can engage in a normative science, according to Kelsen, only if one assumes or presupposes the objective validity of the system of norms one is analyzing. Objective validity, the mode of existence of noms, is not explicable in terms of empirical facts. Jurisprudence, therefore, has to be distinguished clearly from any form of empirical cognition of the law, for example a legal sociology or a practice-based account of the existence of legal norms, ifitis to be adequate to its object Legal theory, second, in order to achieve scientific status, must be separated from moral theory or, as Kelsen often puts it, the theory of justice’ The frequent emphasis on the separation of law from justice in Kelsen’s works is aligned with a distinction between legal form and legal content. A satisfactory conception of the validity of a legal norm, Kelsen claims, must be fully dissociated from any normative evaluation of the content of that norm, Kelsen usually explains this requirement as a condition of object ity. Theories of justice, or of the moral correctness of the content of law, he frequently suggests, are mere expressions of subjective interests. Hence, the pure theory, as a theary concerned to focus solely on the abjective cognition of the law, must cleanse its concept of legality from assessments of the moral quality of legal content lest its claim to objectivity be undermined ® See ibid, 13-14 and Hans Kelsen, Der socologische und der junstische Staatsbegnff Knitsche Untersuchung des Verhaltnisses von Recht und Staat (Tibingen 1928), 1-14. 'elsen, Introduction to the Problems of Legal Theory (above, m1), 3-25 Tibid, 15-19 Ibid, 16: The content of justice “cannot be determined by the Pure Theory of Law or, indeed, amtved at bby way of rational cognition et all - as the history of human intellectual endeavour demonstrates, with its {awe over @ millennium to resolve this problem.” 50‘The third characteristic of the pure theory as a science is its aim to be a “general legal theory” or “allgemeine Rechtslehre”.® Kelsen claims that the pure theory is a theory of positive law as suc not of any particular positive legal system. Of course, Kelsen does not want to suggest that there is a set of universally and intrinsically valid norms that necessarily form part of the content of every positive legal system, Such a view is the identifying mark of natural law theory. Rather, he claims that all positive legal systems necessarily share certain structural properties that can be outlined in a universal jurisprudential conceptual framework, The pure theory as a science aims to offer such an outline of the structural properties shared by all positive legal systems. The point of this endeavor is to purify legal concepts of all elements that are projections of practical interests only contingently related to the necessary structure of legelity. This thumbnail sketch makes it clear that Kelsen’s defense of the pure theory as scientific cannot appeal to any generally accepted understanding of science. An analysis of the pure theory, instead of trying to make sense of the abstract claim that jurisprudence would not be scientific ifit were impure, should therefore ask whether there are any good independent reasons to accept the three characteristics of the pure theory as necessary conditions of adequacy for a jurisprudential theory. If there are such reasons, the anelysis should go on to ascertain how the pure theory tries to answer to these standards of adequacy and to assess whether it is successful in doing so In this chapter, I will try to explore the possibility of offering a defense of the pure theory along these lines. My result will be largely negative, at least from a legal positivist perspective. I will argue thet Kelsen’s emphasis on the double purity of jurisprudence from both empirical social science and substantive theory of justice makes Did, 7 51sense only if we tale jurisprudence to be grounded in the normative assumption that there are autonomous values of legality. The possibility of reasonably assuming that such values exist makes a normative legal science possible. The independence, and, ftom a legal point of view, the normative priority of legality’s value from controversial conceptions of substantive social justice, makes it necessary to distinguish this science from the theory of justice. These observations entail that we have sufficient reason to accept Kelsen’s conception of purity as a standard of adequacy for legal theory only if we commit to a normative ideal of the rule of law thet, as 1 will argue, is served by acceptance of the demand for purity. There is no defense of the allegedly scientific characteristics of the pure theory, then, which is independent of a defense of the commitment to this ideal. The attempt to justify Kelsen’s list of conditions of adequacy for a legal theory must therefore lead into Kelsen’s political theory, which will be the subject of subsequent chapters of this thesis In this chapter, I will proceed by discussing Kelsen’s two conditions of purity, the distinction of legal theory from the theory of justice and the distinction of legal theory and empirical science, starting with the latter. Kelsen’s descriptions of the general structure of legal system will be brought into play as needed to make the argument. My aim, in the discussion of both conditions of purity, is to question Kelsen’s ‘official’ arguments that attempt to defend the pure theory on a purely methodological or epistemological basis. I believe that these official arguments, so to speak, fail to show the pure theory itself in its best light. They are incoherent attempts to express an underlying theory of the value of legality that needs to be set free from Kelsen’s occasionally unhelpful scientist shetoric.11.1 Law and Nature Kelsen’s official argument for the rejection of positivist views that, like H.L.A Hatt’s, try to understand legal normativity in terms of social fact is epistemological. It tries to apply the Kantian technique of transcendental argument to jurisprudence According to Kelsen’s transcendental argument, the assumption or presupposition on the part of the legal scientist of an objectively valid basic norm thet is irreducible to social fact and that provides all the laws that have membership in a legal system with normative force, is a necessary condition of the possibility of legal cognition” This argument has been extensively scrutinized in a large body of scholarly literature, and it is not my primary aim to add to this literature!" | side with those who believe the argument has its weaknesses. The problem, in a nutshell, is that the requirement of a basic norm can be defended only on the basis of a controversial account of the aims of legal cognition. The claim that we cannot cognize the law at all without presupposing a basic norm seems to be patently false. Kelsen himself is forced to admit, despite the fact that he sometimes appears to suggest a contrary view, that it is possible to describe legal phenomena as social facts or facts of power. He is therefore forced to offer a watered-down transcendental argument claiming that it would be impossible to conceive of the law as a nomnative order if we did not presuppose @ basic norm, Kelsen tries to support this weaker argument by claiming that it shows that the theory of the basic nom is alone * Kelsen, of couse, never explicitly dealt with Hart’s legal theory in writing. But it can safely be assumed that he would have been critical of the idea to ground legel validity in social practice. Kelsen’s attack on ‘Max Weber's legal sociology is clearly applicable to Hart's account of legal normativity See Kelsen, Der soaologische und der juristsche Staatshgnff (above, n. 5), 156-170, 3 See Stanley Paulson, ‘The Neo-Kentian Dimension of Kelsen’s Pure Theory of Law’, in Oxford Joumal of Legal Studies, 12 (1992), 311-332, Stanley Paulson, ‘Introduction’, in Kelsen, Introduction to the Problems of Legal Theory (above, n\ 1), xxix-xliti, Horst Dreier, Rechislehre, Staatssozologie und ‘Demokratietheonte bei Hans Kelsen (Baden Baden 1986), 56-90 53capable of making sense of the fact that jurisprudence has always understood the law as a nomnative order, or, in neo-Kantian parlance, of the fact of legal science. Stanley Paulson hhas convincingly argued that this weaker argument fails as well and thet it is unable to establish that the pure theory is the only possible normativist legal theory, ie. the only possible legal theory that embraces both the separation thesis and the claim that legal n nomativity is irreducible to social fact In my view, these results invite a reversal of our order of argument. Kelsen’s defense of the basic norm does not get off the ground once we have a more specific picture of the normativity he thinks jurisprudence attributes to the law than could be provided by any epistemological argument about the conditions of the possibility of legal cognition. Kelsen’s picture of what it means to interpret legel phenomena as normative, I will argue, is ultimately dependent on a value laden understanding of the normative aims of legal order itself The theory of the basic norm, then, will have to be defended in terms of the pure theory’s capacity to help realize the normative aims it attributes to legal order. In this chapter, 1 am not attempting to offer the defense I just alluded to. Rather, I am concemed to elucidate the way in which the pure theory understands the normative aims of legal order. Any defense of this understanding, I will conclude, must be political and will be taken up in subsequent chapters. But in order to offer a defense we must first know what it is that we have to defend. » See Paulson, ‘The Neo-antian Dimension of Kelsen's Pure Theory of Law’, 328-332 (above, n. 11). A somewhat updated version of the argument can be found in Stanley Paulson, ‘On the Puzzle Suounding Hans Kelsen’s Basic Norm’, in Ratio Junis, 13 (2000), 279-293, 54Subjective and objective legal meaning ‘The main intuition driving Kelsen’s view that legal normativity cannot be analyzed in terms of social fact and that a satisfactory legal theory therefore has to be a nomnative as opposed to an empirical science is the distinction between the subjective and the objective legal meaning of human actions.? Unfortunately, Kelsen’s presentation of the distinction is none too clear. It appears to draw into one several different distinctions that ought to be kept apart. Kelsen introduces the distinction between objective and subjective meaning by referring to a number of examples of legal acts “a parliamentary enactment, say, or an administrative act, a judicial decision, a private law transaction, a delict”.* He observes that such acts can be described from two different points of view or under two different aspects. On the one hand, they are instances of mere behavior, ie. they are observable extemal events taking place in time and space that are subject to some kind of causal explanation. On the other hand, they can be interpreted as meaningful actions that have “a sense that is, so to speak, immanent in or attached to the act or event” * ‘The meaning or sense of an act, Kelsen claims, cannot derive from its position in a chain of causes and effects, it does not attach to the act insofar as it is an extemally observable natural event. Rather, it stems from the fact thet it falls under legal norms that ® Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 9-10. The distinction figures prominently in many of Kelsen’s works. See for example Hans Kelsen, Vom Wesen und Wert der Demokrate (Tebingen 1929), 7-8; Kelsen, Der sozologische und der jurstsche Staatsbegnif (ebove, n 5), 44-45. It is related to Kelsen’s rejection of the idea that claims to subjective nights can function as the foundation of law. * Tid, 8 2 Toid’ “People assemble in a hall, they give speeches, some rise, others remain seated — this is the external event: Its meaning: that a statute is enacted. Or, a man dressed in robes says certain words from platform, addressing someone standing before him. This extemal event has as its meaning a judicial decision.” 55attribute a legal significance to human actions. Some piece of behavior can count as a case of theft only if there is a legal rule that classifies certain kinds of behavior as theft and that puts a sanction on such behavior. Some behavior can count as the enactment of a law only if there is a legal rule that determines that actions of a certain kind are to count as acts of legislation, and so forth. Such rules, in Kelsen’s view, function as “schemata of interpretation” that provide what would otherwise be mere instances of observable behavior with an immanent legal meaning Kelsen appears to suggest, atleast in some of his works, that this crude contrast is sufficient to justify the claim that legal theory must be a normative science, the suggestion being that we can only describe human behavior as legelly or even as socially meaningful from the point of view of anormative legal science.” This argument is highly dubious for two reasons. First, Kelsen seems to overlook that we can certainly describe pieces of human behavior as meaningful, from a psychological or sociological perspective, without subsuming them under legal rules. Secondly, even if we accepted the more limited claim that human actions can have a specifically legal meaning only insofar as they fall under legal norms, we would certainly not have shown that the existence of these legal norms, and hence the legal meaning of the acts falling under them, cannot be explained as a social practice of one kind or another. * Some of Kelsen’s remarks, in any case, suggest that the distinction between obj wve and subjective legal meaning responds to a much narrower concern. Kelsen realizes, of course, that legal events are human actions that typically differ from other 2 Tid, 10. *7See for an example Kelsen, Der sodologische und der jurtstsche Staatsbegriff(above, n_ 5), 156-170 See fora detailed critique along these lines Weyma Liibbe, Legitins tat kraft Legahtat’Stnnverstehen und Insttutionenanalyse bet Max Weber und seinen Kntkern (Tiibingen 1991), 35.61 56causally explicable natural events in one important resp. They usually camry a “self interpretation”, ive. they are taken to have a certain meaning by those who perform them Kelsen is interested in such selfinterpretations, moreover, only insofar as they relate to the law. What Kelsen calls the “subjective legal meaning” of an acts a selinterpretation of the specifically legal meaning of one’s acts. In other words, it is the legal meaning that an agent intending to perform a legal act attaches to that act, in virtue of his own understanding of the legal norms that apply to the situation in which he acts. Legislators raising their arms do not just happen to enact a law while intending to scratch their heads They believe that they are en: cting a law, usually motivated by some set of ulterior concems, and make it known that this is what they take themselves to be doing People living Something similar, Kelsen acknowledges, has to be true of most legal under a legal order constantly engage in or avoid actions because they assume that these actions have a certain legal meaning and because they expect others to interpret their actions and to act accordingly However, Kelsen points out that it is often wrong to take subjective legal meaning at face value. People may be mistaken about the legal significance of their own or other’s actions. The members of a legislature, for example, may believe that their hand-raising amounted to the enactment a law. But such beliefs can clearly be false, say for want of observance of some procedural norm. Needless to say, people’s perceptions and public representations of legal meaning may also be distorted by their wants and interests, What is more, some people may have reason to deliberately misrepresent the legal meaning of their to others. Finally, even well-intentioned and well-informed agents will, on occasion, disagree about the legal meaning of certain acts. For all these reasons, legal 3} elsen, Introduction to the Problems of Legal Theory (above, ».1),9-10. STcience needs to be able to distinguish between what people believe or claim is the legal meaning of an act and its true or objective legal meaning” The objective meaning, Kelsen explains, is the meaning “attributed to the act in the system of all legal acts, that is, in the legal system”. ”! That some particular individual subject to the law believes, claims, or desires some act to have a particular legel meaning, then, is never a sufficient condition for it to objectively have that meaning. Whether an intended legal act objectively succeeds to accomplish its goal depends on whether a system of valid legal ‘norms does, in fact, attribute a suitable objective meaning to it” ‘The claim that we need a distinction between objective and subjective legal meaning, if understood in the narrow fashion just outlined, is certainly a plausible enough intuition, Surely, human actions cannot have whatever legal meaning individual subjects of the law want them to have if there is to be legal order. It is not quite clear, however, exactly what further conclusions we are entitled to draw from this observation. Kelsen argues that a legal theory necessarily has to be a normative science in order to be able to draw a successful distinction between subjective and objective legal meaning. The pure theory of law, Kelsen argues, is the only legal theory that lives up to this criterion of adequacy. Forms of positivism that try to explain legel validity in terms of social fact, on the other hand, necessarily fail on this score. This appears to be a more promising argumentative strategy than the reliance on vague general contrasts between causality and intentionality or normativity. But on closer inspection, Kelsen’s argument tums out to * Ibid, 9. ™ Tid ® See Ibid, 11 and 13-14. The pure theory is not concemed with people’s intentional attitudes towards ‘valid norms and neither is it to be confused with a legal sociology “whose task is to enquire info the causes and effects of those natural events that, interpreted by way of legal cognition, are represented as legel acts” (bid. 13), 58rely on an interpretation of the distinction between subjective and objective legal meaning that is anything but uncontroversial In order to see this, it is helpful to compare Kelsen’s pure theory with Hart's positivism, Hart argues that legal rules are a species of social rules and that their validity is ultimately grounded in a complex matter of social fact” A primary social rule exists, in Hart's view, if and only if the following conditions are met: it is regularly observed by the members of a society, non-compliance is typically met with critical reactions by one’s peers, and the rule is used to justify one’s own behavior or to criticize that of others People believe that it is improper not to take off one’s hat in church, they regularly do so, they somehow socially sanction those who don't, and they justify this attitude with reference to the rule that one ought to take off one’s hat in church, Given these empirical conditions, we can say that the rule that one ought to take off one’s hat in church exists.* Hart expands this basic account of social rules into a theory of legal system by introducing the concept of a rule of recognition A rule of recognition provides a conventional standard for the identification of legally valid primary rules of obligation. While non-legal social rules exist only if they are pra ed as amatter of fact, a legal rule that can be identified in terms of the rule of recognition is valid, even ifit lacks full social effectiveness, provided it passes the test of validity established by the rule of recognition * The rule of recognition itself, however, exists in much the same way as a simple primary social rule. Hart describes it as “a complex, but normally concordant, practice of the court’s, officials, and private persons in identifying the law by reference to > See HLA Haxt, The Concept of Law (Oxford 1961) ™ See ibid, 54-56, 2 See bid, 99-107 59certain criteria”. The claim that there is a rule of recognition, and hence that there is law, simply states an observable empirical social fact 7” Since it conceives of the highest rule of legal system as a de facto social practice and not as an objectively valid norm, Hart’s theory is not anormative science in Kelsen’s sense of the term. But it seems doubtful whether Kelsen is entitled to claim that the theory therefore fails to make sense of the distinction between objective and subjective legal meaning Hart would presumebly agree that the existence of legal order requires that the members of a society or at least its legal officials have the ability to distinguish suce! ssfully, in most cases, between what individual subjects of the law claim or believe is the legal meaning of their actions and some socially recognized or ‘official’ legal meaning of these actions. He would argue, however, that the fulfillment of a requirement of objectivity that allows us to distinguish between individual opinion and socially recognized meaning is already built into his account of what it means for a social rule to exist. He would point out, moreover, that the fulfillment of this requirement is further solidified in the transition from a regime of primary rules to a legal system that is a unity of primary and secondary rules.* A Kelsenian is likely to reply that this observation misses part of the point of the distinction between subjective and objective legal meaning. The distinction is not merely concerned with what allows us to identify the objective legal meaning of an act, Itis also concemed with explaining the intuition that legal acts have a normative meaning, If some act of mine has an objective legal meaning matching the subj wve legal meaning I attach 2 tpid,, 107. 2” See for a recent analysis and defense: Jules Coleman, The Practice of Principle. In Defense of a Pragmatist Approach to Legal Theory (Oxford 2001), 74-102 See Harts account of the reasons for the transition fiom e regime of primary rules to @ legal system in Hart, The Concept of Law (above, n. 23), 89-96. 60to it, the act will be more than just an expression of my subjective will, Whatever nomnative consequences I take the act to have will be objectively validated by legal order. To say that a legal act is objectively and not just subjectively valid, according to Kelsen, is to say that it succeeded to enact an “objectively valid norm that imposes obligations and confers rights upon individuals”? Kelsen defends this view by relying on a general contrast between discourse about legal norms and discourse about causal relationships. A science trying to offer causal explanations, according to Kelsen, cannot form the basis of jurisprudence since it will necessarily misrepresent the normative nature of legal discourse: “If one deprives the norm or the ‘ought’ of meaning, then there will be no meaning in the asertions that something is legelly allowed, something is leglly proscribed, this belongs to me, that belongs to you, X has @ right to do this, Y i obligated to do that, nd so on. In short, all the thousands of statements in which the life of the law is manifest daily will have lost their significance. For itis one thing to say that A is legelly obligated to tum over 1000 talers to B, andl quite another to say that there isa certain chance that A will in fact turn over 1000 tlers to B. And itis one thing to say that, in terms of a statute, certain behavior {is a delict and, in conformity withthe statute, isto be punished, and quite another to say that whoever has ‘behaved in this way will in all probebilitybe punished "™* How do these observations fare as arguments against Hart? We may grant Kelsen that the claim that ‘A will be forced to pay’ does not have the same meaning as the claim that ‘A ought to pay’. This argument, however, appears to be insufficient as a criticism of Hatt’s conception of law since the latter can easily accommodate the irreducibility of statements about valid legal norms to statements about causal relationships. It is only the rule of recognition, according to Hart, that exists as a matter of social fact, ie. as a ® Hans Kelsen, The Pure Theory of Law. Translated from the second German edition by Max Knight (Berkeley 1970) 103, » Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 33, 61concordant practice of the identification of law amongst legal officials. The other rules of a legal system are valid in virtue of being identifieble on the basis of the rule of recognition. These dependent norms, moreover, need not be perfectly effective, They remain in force even if subjects of the law quite regularly violate them as long as the rule of gnition continues to exist. Hence, when Legal practitioners issue statements about such norms, on the basis of the rule of recognition, they do not make causal predictions? Kelsen, I conclude, is not entitled to claim that a practice-based legal theory like Hart's fails simply because it fails to make any sense of the distinction between objective and subjective legal meaning. Insofar as the necessity for drawing some such distinction is w nntroversial, Hart’s view seems to be able to do so. It allows us to identify valid law in a way that is not susceptible to the vagaries of individual differences in opinion and it does so in a way that avoids a crude reduction of legal validity to causal regularity, Hart’s understanding of the normative meaning of law, however, is open to a more sophisticated criticism that has been developed, under the influence of Kelsen’s pure theory, by Joseph Raz? Hart’s way of basing legal validity on a matter of social fact may avoid any simple reduction of legal validity to causal regularity. But Hart's account of legal validity, Raz argues, nevertheless fails to explain the normativity of law since it fails to show how legal validity, the fact that some course of action is required by a valid law, can at least potentially make a practical difference for those whom the law purports to guide. This difference, in order to sustain Hart’s view that the law is more See the discussion of the ‘idea of obligation’ in Hart, The Concept of Law (above, n. 23), 19-88. Haxt acknowledges that “the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a coust will apply sanctions to those who break them, but ate also a 1eason or justification for such reaction and for apalying the sanctions.” (ibid, $2) > See for Raz’s criticism of Hert Joseph Raz, Practical Reason and Norms (Princeton 1990), 49-58. 62than a system of orders backed by threats, must of course be a difference of the right kind, It cannot stem from an interest in avoiding sanctions. But neither can it stem fom conformity of the content of the law with moral principles the subjects of the law consider themselves to be bound by in any case. In order to account for the normative force of the ‘ought’ in statements like ‘A ought to pay to pay 1000 talers to B’ or ‘Ais legally obligated to tum over 1000 talers to B” alegal theory must be able to explain how such statements can at least potentially be statements of a distinctive and irreducible kind of reason for action. Kelsen, in Raz’s view, failed to offer an explanation of the right kind. But his insistence on the normative character of legal science, as well as some conclusions Kelsen drew from this insistence, in Raz’s view, at least show an intuitive appreciation of the problem I agree with Raz that this criticism of Hart cannot be based on what would appear to be Kelsen’s ‘official’ conception of a normative science based on the simple appeal to the dichotomy between normative statements and causal predictions. But I do not go along with Raz’s view that Kelsen himself would therefore have been unable to account for the distinctive normativity of law and hence have been at a loss to explain his rejection of practice based legal theories. Kelsen’s legal theory contains an implicit answer to the question why jurisprudence must be normative, This answer can be read as an attempt on Kelsen’s part to explain how legality can make a practical difference of the kkind that is missing, according to Raz, from Hart’s account of legal normativity, This implicit answer is intimated in the fact that Kelsen reads the distinction between subjective and objective legal meaning in a much more ambitious sense, in one » See ibid, 170-177, Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, in Joseph Raz, The Authonty of Las. Essays on Lav and Morality (Oxford 1979), 122-145, at 134-145 63respect, than either a Hartian or a Razian would be happy with or than seems required by any uncontroversial intuitive understanding of the distinction. According to Kelsen, the objective legal meaning of an act needs to be distinguished not just from what this or that individual subj of the law takes it to be. Objective legal meaning or the objective validity of legal norms is not explicable in terms of any set of beliefs, attitudes or practices, however widely shared amongst the members of a society or its legal professionals * This strong sense of objectivity is connected, moreover, with the idea that any legal order possesses a property of completeness. Kelsen commits to the claim thet all disputes about the objective legal meaning of human acts falling into the temporal and geographical sphere of validity of a legal order can be decided on the basis of the legal noms contained in that order. ** Iwill have a lot to say about how Kelsen defends these two claims and about how they relate to the idea that law has a normative meaning in the next section, I want to close this section by analyzing Kelsen’s practical interest in making these two claims Kelsen is interested in defending the absolute objectivity and completeness of law » See Kelsen, Introduction to the Problems of Legal Theory (above n. 1), 56-58. Someone who assumes the existence of a basic norm is not stating the empirical fact that there is @ social practice in some society of using rues identified ina cerfain way as legel standards. He is assuming that the basic norm - which is rot, as Kelsen points out ibid. 58, a positive norm since it is not “created ina legal process, not issued or set” ~is objectively valid. To presuppose a basic norm, hence, is incompatible with taking the view that the bbasic norm exists because its, a @ matter of fact, used as a standard of legel validity. > Kelsen claims that there are no gaps in the law and that it is therefore possible to decide every legal dispute ona legel basis. See Kelsen, ibid, 84-86, Hans Kelsen, ‘On the Theory of Interpretation’, transl. by Bonnie Litschewski-Peulson/ Stanley L. Paulson, in Legal Studies, 10 (1990), 127-135, at 132-133. One right object thatthe claim that all legal disputes can be decided in accordance withthe lew does not entail that all social disputes will be justiciable since there may be social disputes that cannot be framed as legal disputes. Altematively, one might argue that Kelsen is only making the trivial claim that all social conflicts, even those that cannot be decided on a material legal basis, can nevertheless be decided by cours since courts ere formally authorized to do so. Kelsen’s politcal waitings, however, show that he clearly wants to rake the strong claim that all social disputes are aibitrble on the basis of law. See for example Hans Kelsen, “Wer soll der Hiter der Verfassung sein?”, in WRT I, 1873-1912, at 1882-84; Hans Kelsen, Law ‘and Peace in International Relations The Over’ Wendell Holmes Lectures, 1940-41 (Cambridgellvass 1942), 159-167 64because he is worried by the way in which a Hartian legal theory tries to deal with whet Hart calls the ‘open texture of law’ A practice-based conception of law assumes that the validity of the legal rules that confer legal meaning on particular acts is based on a complex form of de facto agreement conceming the methods of identification and application of law amongst legal practitioners. The de facto agreement that stabilizes the meaning of legal rules as social rules may at times fail to provide a clear and agreed upon answer to the question as to how to legally deal with a particular case. In such a situation, Hart admits, we simply cannot meaningfully distinguish between the subjective and the objective sense of an act on the basis of the law. An exercise of political discretion on the part of judges is needed to fix the legal meaning of acts that take place in a penumbra of uncertainty >” ‘The need for recourse to such discretion may not seem very problematic as long as one is dealing with minor problems that arise from the interpretation of legal rules that undeniably form part of the legal system —as in Hart’s famous example about vehicles in the park — and that are applied in a situation of constitutional nomality. But Hart explicitly acknowledges, in The Concept of Law, that problems of indeterminacy may afflict the rule of recognition itself and thus make it impossible to decide on legal grounds whether, for example, the enactment of a certain kind of statute would be ‘unconstitutional or not™® The rule of recognition exists, after all, only insofar as those who pi it roughly agree on what it means. Such cases of constitutional conflict, if they fall into a penumbra of ‘uncertainty’, will inevitably raise the question of who has the political legitimacy that is needed to exercise the required discretionary authority See Hast, The Concept of Law (ebove,n. 23), 121-132. Ibid, 132. bid, 144.150 65And Hart’s view, insofar as it suggests that there are no legal answers in such cases, seems to cast a cloud of suspicion on the idea that such a conflict could be decided in the ‘way in which legal conflicts are ordinarily decided, ie. by a court that is taking a legal decision. Hatt believes that such matters “can be settled only by a choice, made by someone to whose choices in this matter authority is eventually accorded” * Kelsen’s claim thet all human acts falling into the temporal and geographical sphere of validity of some legal order have an objective legal meaning entails that none of these acts can bring about any legal effect unless it objectively complies with a norm that attributes that effect to that act. The pure theory denies that any human act or set of uman acts can be legally self-certifying From a Kelsenian perspective, the person in Hart’s account “to whose choices in this matter authority is eventually accorded” must claim to have or at least successfully to exercise the power to tum her own subjective intentions into valid law. She must take the view that her decisions have legislative power despite the fa: that there is no prior legal rule objectively authorizing that exercise Kelsen claims that such exercises of authority — exercises that are not legally authorized yet claim to have legislative power - are inconceivable from a jurisprudential point of view since jurisprudence has to assume, in order to be scientific, that the law comprehensively regulates its own creation and application. Legel theory would not be ‘scientific’, a ording to Kelsen, if it gave up on this assumption, just as natural science would cease to be scientific if it started to explain events that do not seem to fit any > Tbid., 146, Hart goes on to argue on p. 149: “One form of ‘formalist’ error may pethaps just be that of thinking that every step taken by a cout is covered by some general rule conferring in advance the authority to take it, so that its creative powers are always a form of delegated legislative power. The truth may be that, when courts settle previously menvisaged questions conceming the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success.” The interesting thing about this quote is that the position Hart descnbes in his first sentence is precisely the view Kelsen, even though he certainly wasn’t a fomnalist, wanted to take 66established theory as discretionary divine interventions into the ordinary natural run of things.” Hart’s legal theory entails that jurisprudence must accept that an exercise of mere de facto power can have legislative force. When Hart says that, in a constitutional conflict over the meaning of the rule of recognition, “all that succeeds is success", he is implicitly affirming the dualist idea of a distinction between law and state and thus affirming the view that legal order is not just dependent on, but inevitably subject to the incursions of, ameta-legal purely political power.” The claim of the availability of a legal answer to any dispute falling within the sphere of validity of a legal order is particularly relevant in two areas of law Kelsen was especially concemed with: constitutional law and intemationel law. Kelsen’s ambition is to show that there are no jurisprudential reasons to think that actions of state, both domestically and internationally, cannot be fully subject to the rule of law. He argues that ‘when a state is making the claim that its actions are not justiciable — either in the internal or in the intemational context - its rulers are merely expressing their unwillingness to accept subjection to the law, an unwillingness that is veiled by an ungrounded appeal to the claim that, unfortunately, the law fails to provide clear guidance. But the claim that the law has ‘run out’ is never a sufficient reason, Kelsen aims to show, for rejecting submission to legal arbitration since such arbitration is always in principle available once there is alegal order? See Kelsen, Der sozologische und der juristische Staatsbe gnff(ebove, n. 5), 219-253 © Hart, The Concept of Law (above, n.23), 149. " Kelsen, of couse, does not deny thatthe existence of a legal system depends on certain underlying social facts. See Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 60-63. What he rejects, though, isthe idee that there is such a thing as a ‘normative Kraft des Fektischen’(Jellinek) or that, to put it in Schmittian terms, the authonty of the state “um Recht zu schaffen, nicht Recht zu haben braucht”. Cat! Schmitt, Politische Theologe. Vier Kapttel zur Lehre von der Souveranitat (Berlin 1934) 19, © See Kelsen, Law and Peace in international Relations (ebove, n. 35), 163-167; Kelsen, ‘Wer soll der iter der Verfassung sein?” (ebove, n. 35), 1882-1884 67Kelsen’s standard of legal objectivity, therefore, clearly has a normative meaning Apart from denying the possibility of legally self-certifying powers, it claims that the law contains the resources to answer to any social dispute, to settle any social dispute on a legal basis. What is more, it claims that the answer to be given on a legal basis is not just the answer that some powerful individual member of society or some powerful group of individual members of society want to see given. It is the answer provided by the law as an objective normative order. Given these assumptions, we should expect the conception of completeness, i.e. Kelsen’s ambitious reading of the objectivity-subjectivity distinc on on the dimension of identification, to be intimately related to the explanation of the law's nomative meaning All this raises the question, of course, whether Kelsen is really entitled to reject Hatt’s view of the limitations of legal order as a positivist. It would appear that the pure theory, in order to achieve its aims, will either have to claim that positive law is perfectly determinate, i.e, that there is no problem of open texture, or have to accept that meta- positive moral standards must necessarily govern our concept of legality whenever open- textured positive rules alone would not be able to ground an objective and determinate legal meaning or an act. Kelsen, needless to say, attempts to reject both options. But is there athird? Kelsen's theory of legal order Kelsen’s account of legal validity officially rests on the view that causality and nomnativity are two categorically different yet structurally analogous forms of lawful 68relatedness of events that constitute two separate realms of reality. Causal or natural laws connect events as causes and effects. To assert that there is some causal law is to say that if an event of a certain kind takes place another event of a certain kind will take place Norms, on the other hand, constitute normative connections between events. To say that a nom exists is to say that if a certain kind of event takes place another event of a certain kind ought to take place. Normative assertions, in contrast to causal claims, are not falsified by a failure of the normative consequence to actually obtain. This fundamental categorical distinction between causality and normative attribution or ‘imputation’, Kelsen claims, is immediately given to consciousness. It is therefore self-evidently impossible to reduce statements about noms to statements about natural laws or to derive ‘ought’ from ‘is’ * Kelsen argues that it is a consequence of the underivability of ‘ought’ from ‘is’ that there are only two ways to establish the validity of norms: A norm can be valid in virtue of a validating relation to some other norm, ie. in virtue of its place in a system of noms, or it can be intrinsically valid. All systems of norms, both moral and legal, according to Kelsen, have a hierarchical structure, At the apex of every system of norms we find a basic norm that individuates the system and provides all norms that have membership in the system with normative force. Basic norms are not dependent on other noms and neither are they reducible to empirical fact. They possess intrinsic validity. ‘The validity, and hence the normativity, of all other norms of a normative system is directly or indirectly dependent on the system's basic norm ** The dependence of lower- order on higher-order norms, however, is not of the same kind in moral and legal See Kelsen Introduction to the Problems of Legal Theory (above, m1), 22-25 © See sbid, 55-58. 69systems. In the case of a moral system, all norms that form part of the system, Kelsen thinks, are logically entailed by a basic norm that takes the form of some fundamental moral principle treated as a necessary truth, in virtue of ts content, by the moral theorist urse, that in the This means, of e of amoral system, it is really the system as a whole that is intrinsically or necessarily valid. ® In a legal system, on the other hand, the dependence-relations between the basic nom and the lower order norms are genetic and contingent A legal system is a dynamic chain of creation (“Erzeugungszusammenhang”).*” The basic norm of a legal system, in contrast to the basic norm of a moral system, is not a substantive principle but rather a blanket authorization of the legal system’s fundamental legislative procedures. Kelsen jorm itself imposes no substantive constraints on the content of emphasizes that the bas the law, It has a “thoroughly formal, dynamic charac rr”. He claims, moreover, that it is impossible to logically deduce any particular norm that has membership in a legal system from that system’s basic norm or from the fundamental legislative procedures it authorizes. Legal norms “must be created by way of a special act issuing or setting them, an act not of the intellect but of the will”. They are valid if and only if they can be shown to have been enacted in accortlance with the basic norm and with the fundamental legislative procedures authorized by it* Since all legal norms other than the basic norm “Tid, 55. "7 Toid., 56-57. For a helpful analysis of Kelsen’s theory of the structure of legal systems see Raz, Kelsen’s TBeory of the Basic Norm (above, n. 33), 122-127 "Yelsen, Introduction to the Problems of Legal Theory (ebove, n. 1), 56. Kelsen’s strong emphasis on the static nature of moral systems endl the dynamic nature of legal systems clearly anticipates Scott Shapiro's way of drawing a contrast between dynamic exclusive and static inclusive rules of recognition. See Scott Shapiro, ‘On Hart's Way Out’, in Jules Coleman (ed), Hart’s Postscript. Essays on the Postscript to ‘The Concept of Law’, 149-191, at 181 a)are results of actual exercises of will, Kelsen claims that “any content whatsoever can be law’, regardless of its substantive moral quality The basic norm itself, of course, cannot be the result of an enactment since the possibility of valid enactment presupposes authorization given by a norm. Kelsen argues, that its objective validity must be assumed or presupposed in order for legal cognition to be possible, ie. in order for it to be possible to interpret the law as normative? To presuppose a basic norm is to accept that the historically first constitution to which the noms of a legal order that is by and large effective can be traced back through an unbroken chain of validity has to be considered as objectively valid and as validating all noms that were created in accordance with it‘! The basic nom itself simply states that “ Tid. This claim has to be read with care. Kelsen does not assert that any legel system can take any content Some legel systems may contain unamendable constitutional restrictions that effectively limit the permissible content of the system. Kelsen argues, rather, that any content whatsoever could become law in some possible legel system. See Hans Kelsen, Das Problem der Souveravatit und che Theorie des Volkerrechts (Toivingen 1920), 47-53 2 See Kelsen, Introduction to the Problems of Legal Theory (shove, n. 1), 56-58 9 Raz believes that the theory of the basic norm fails es a theory of the unity of legal system. See Raz, Kelsen’s Theory of the Basic Norm (sbove, n. 33), 121-129 and Joseph Raz, The Concept of a Legal System. An Introduction to the Theory of Legal System (Oxford 1970), 100-109. The arguments made by Raz echo those in HLA. Hart, ‘Kelsen’s Doctrine of the Unity of Law’, in HLA Hart, Essays in Jurisprudence and Pitlosophy (Oxford 1983), 309-342. The criticism, in a nutshell, argues that Kelsen’s ‘view that all legal norms linked to a common ancestor must form part of the same legel system leads to absurd consequences. It would, for exemple, force us to deny thatthe Canadian legal system is independent fiom the British since there is @ presumptive chain of validity or a “telationship of validating purport” that links the Canadian constitution to acts of the UE. parliament. Kelsen is compelled to admut, Raz ancl Hart ‘argue, that Canada’s first constitution is really the British constitution, a claim that is clearly absurd. I cannot develop a counter to this argument in any detail here, but the criticism seems to me to be based on a risteading of Kelsen’s theory of interational law. To begin with, Kelsen explicitly states that the question which constitution ought, by legel scientist, to be considered the first constitution of some nation is in part «political choice that is determined by moral considerations and not by how fer we could trace relationships of validating purport if we wanted to. A Canadian lawyer is perfectly ftee, according to Kelsen, to adopt a national petspective and to decide to treat the Canadian constitution as normatively independent, at least if doing so allows him to ‘save the phenomena’, ie. to offer e fitting legal description of Canadian society. However, adopting such a stance, according to Kelsen, would involve a denial of the objective validity of intemational law. But this claim is less counterintuitive than it appears at fst sight If cour lawyer accepted an internationalist perspective instead, he would not be forced to revert to the view that the Canadian constitution is dependent on the British Rather, the first constitution would, from the intemationalist perspective, be the constitution of the society of states. For the Kelsenian internationals, there is onlyone global legel system of which all national legal orders form a part. But this need mean little ‘more, given the low degree of centralization of interational legal order, than that national independence is transformed from full normative independence into sovereign equality as a legel status conferred and ncoercion is to be exercised only “as determined by the framers of the first constitution”, ie. in accordance with legal rules contained in or derived from the first constitution Let us note some important consequences of this picture, Kelsen’s theory of the basic norm plays a double role. The basic norm grounds the unity of a legal system and it is the source of the normativity of all norms belonging to the system. Objective validity, or membership in a normative system individuated by a basic norm, is the specific mode of existence of all norms. To say that a norm is valid is to say that it can be validated by being traced back to a basic nom. And this is the same thing as to say that it exists, inthe only sense in which norms can be said to exist.” Moreover, to show that some directive is a legally valid norm since it can be tr d back to a basic norm is to give an answer to the question why one ought to act in accordance with the directive, at least on the condition that the validity of the basic norm is presupposed. The validating recourse to the basic norm, given this presupposition, provides at least a conditional justification for the demand raised by the validated norm As Joseph Raz aptly put it, Kelsen’s theory of legal validity conceives of legel validity as a species of justified normativity*? A conception of legal validity that identifies validity with a form of justified normativity rejects the claim that standards of behavior can be protected by intemational law. Kelsen believes that the nationalist and the intemationalist strategy are the only two politically viable approaches to choosing a first constitution and that they are necessarily incompatible. In other words, Kelsen claims that state sovereignty, which he equates with the claim to full normative independence of the state's legal system, is necessarily incompatible with the existence of intemational law. Hence, Kelsen believes that we face an unavoudeble and morally important choice ‘between the nationalist andthe internationalist perspective, a choice that must not be postponed or glossed. over by ideologically motivated reconciliations of national sovereignty end international law. But nothing in Kelsen’s argument leads to the ebsurtis that Hart and Raz claim to find by assuming that Kelsen simply thinks we must follow chains of validity wherever they may lead us. Kelsen agrees thatthe question ‘which chains ae relevant depends on a prior choice of perspective. He only doesn’t think that this choice of perspective can be guided by empirical observation of social facts of recognition. Hart's end Raz’s guiticisms area simple result of enlicit abstraction fiom the politcal context of Kelsen’s views. 2 Keleen, Introduction tothe Problems of Legal Theory (above, n. 1), 12 ° Raz, Kelsen’s Theory of the Basic Norm (above, n. 33), 134 nconsidered as norms regardless of whether they have genuine normative force. Instead, it assumes that “legal standards of behavior are norms only if and in so far as they are justified” ** However, the thumbnail sketch of Kelsen’s theory of legal system offered so far does not explain what sense of ‘justification’ is in play in the idea of conditional justification just outlined, Moreover, since the theory once again rests on an abstract contrast between nomativity and causality it would still seem to be vulnerable to the objection we considered earlier. The general picture of the structure of legal system just outlined does not appear to show what is wrong with a practice based theory of legal system. In order to arrive at an argument against such theories, it seems, we need to explain both what sense of justification is provided by a recourse to a Kelsenian basic nom and show why the function to provide such justification must or ought to be attributed to the law. So far, moreover, itis hard to see how the basic norm’s discharge of either of its two functions helps to sustain Kelsen’s claim that the existence of a legal system will endow all human acts falling within its temporal and geographical sphere of validity with an objective legal meaning and hence make all social disputes justiciable, ie. decidable on alegel basis. The postulation of the basic norm does not, as Hart pointed out, appear * Tid, 134, Raz goes on to claim that Kelsen is usually misunderstood because his readers fail to realize that his theory of legal normativity is committed to the following three claims: 1. Legal validity is a form of justified normativity, 2. an individual subject of the law can consider the law as normative/justified “only if hhe enclorses it as morally just and good”, and 3. legal science “considers legal systems as normative in the ‘same sense of ‘normative’ but in a different sense of ‘consider’ which does not commit it to accepting the Jaws as just.” (134-135) The interpretation I want to defend can be summed up as follows: Kelsen indeed rakes the first claim, However, he denies the second claim. Kelsen does not argue that to consider law as ‘valid is to consider it as just and good, he axgues that it is to consider it as legitimate. Finally, itis true that legal science considers the law as normative in the same sense of ‘normative’ as the individual. But legal science also considers the law as normative in the same sense of ‘consider’. There is no difference between the point of view of legal science and the point of view of the citizen who accepts the law as justified. Both legel science and the individual citizen are committed to accepting the law as legitimate Bto provide us with any additional criteria, ie. with criteria over and above those contained in a system’s rule of recognition or rst constitution, for identifying valid law. It therefore seems that the bas norm cannot help us, even if we accept its normative claims, to determine the objective legal meaning of an act where the positive law, as identified along Hartian lines, fails to do so.* Kelsen’s legal theory, I believe, contains a reply to this latter criticism. This reply, I believe, also helps explain what it means to justify a norm by showing its validity. In order to see what the reply is, we need to take a step back from the theory of the basic nom and take a closer look at Kelsen’s theory of the structure of legal norms and his conception of legal order As we have just seen, the content of the basic norm of a legal system can be expressed, according to Kelsen, by saying that “coercive force ought to be applied under the conditions and in the manner determined by the framers of the first constitution or by the authorities to whom they have delegated legislative powers” © The specific difference between legal and moral norms, Kelsen claims, is that legal norms authorize the use of coercive force *” A complete statement of alegal norm, therefore, is a hypothetical whose antecedent lists the conditions that are legally sufficient for the application of a sanction to some subject of the law and whose consequent names the sanction to be applied. Legal noms, in their primary form, are not imperatives that directly express the legal duties of © See HLA Haxt, Kelsen’s Doctine of the Unity of Law (above, n. 51), 338-339. # Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 57-58 "This view has been criticized by HL A. Hart, ‘Kelsen Visited’ in HLL A. Hast, Essays in Jotsprudence and Philosophy (above, n. 51), 286-308, at 295-301 ”fe force on the subjects of the law. Rather, they are authorizations for the use of co! part of a society against its individual members that are addressed to legal officials. Legal duties as we ordinarily understand them are defined by Kelsen in terms of sanction-authorizing norms. Subjects of the law have a legal duty not to perform actions that are conditions for the application of a sanction” All actions that are not explicitly designated as conditions of the application of a san ction are permissible. This view is at least in part motivated by the idea that the law can take any content. It expresses the claim thet, from a legal scientific point of view, all illegal actions are illicit because they are forbidden, not forbidden because they are illicit. However, there is one crucial exception to this principle. Kelsen asserts that the law necessarily claims a monopoly of legitimate force, ie. it claims that all uses of coercive force not authorized by the law are in themselves legally impermissible ® Subjects of a legal system are under a general duty to abstain from unilateral violence against each other. An endorsement of the basic norm of a legal system, thus, is an endorsement of the view that the employment of coercive power is justified if and only if it is authorized by a valid legal norm, ie by a nom created in accordance with the fundamental constitutional rules mentioned by the basic ‘nom as well as in accordance with the lower-order legal rules dependent on them 3 Kelsen, Introduction to the Problems of Legal Theory (shove, n. 1), 26. See for further discussion Stanley L. Paulson, ‘The Weak Reading of Authonty in Hans Kelsen’s Pure Theory of Law’, in Law and Philosophy, 19 (2000), 131-171, at 139-155 ® Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 29-30 Hans Kelsen, Law and Peace in International Relations (above, n 35), 13 © The claim that the basic norm justifies the use of coercive force sounds Dworkinian at first glance Kelsen might well agree with Dworkin’s description of the “fundamental point of legal practice”, namely that “Law insists that force not be used or withheld [.] except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” Ronald Dworkin, Law's Emptre (London 1986), 93. Kelsen’s theory of legal order illustrates, as I will argue in ch IV, that one can accept ths claim without accepting Dworkinian interpretivism 6‘This unstated prohibition of all unauthorized violence, Kelsen argues, grounds the property of completeness. All actions within some legal system’s personal, temporal and geographical sphere of authority are either legally permissible, in the sense of not being the condition of the application of a san on, or impermissible, ie. subject to a sanction ‘There is no such thing as conduct that is permissible in virtue of being exempted from legal regulation; the liberty of subjects of the law depends on the silence of the law. Ifa legal system exists - however rudimentary and imperfect its body of positive norms - all social disputes are therefore, according to Kelsen, decidable on a legal basis If faced with a plaintiff's claim, a judge will either determine thet there is a positive norm thet sustains the claim, i.e. he will find that some prior action of the defendant's fulfills the antecedent of a legal norm and that force ought therefore to be applied against the defendant, Altematively, the judge will find that there is no such rule and dismiss the claim on the basis of the principle that the law permits everything it does not explicitly forbid. In the face of sucl a rebuttal, the plaintiff may not take any further action of his own to press his claim against the defendant since all use of force that is not authorized by the legal order is taken to be impermissible ® © See Kelsen, Law and Peace in International Relations (ebove, n. 35), 163-164; Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), $4.86; Kelsen, ‘On the Theory of Interpretation’ (above, 1. 35), 132-133 © One might ask why Hert cannot help himself to a similar notion of completeness. The answer has to do with the fact that Kelsen’s and Hart's theories of the structure of legel norms ental different views of what it means for a judge’s decision to have a legal basis, For Kelsen, a judicial decision has a legal basis insofar as it successfully subsumes (or refuses to subsume) behavior under a norm that authorizes the ‘application ofa sanction. The material norms thet we would ordinarily think of as giving direct descriptions of the duties of partes toe contract are not, in Kelsen’s view, independent legal norms but rather dependent puts of the sanction-euthorizing norm. For Hart, by contrest, the material legel norm at issue and the relevant senction-euthorizing nom are two independent noms, and the latter comes into play only after @ material violation of duty has been found to obfain on the basis of the former. See Hart, The Concept of Law (above, n. 23), 35-42, The material norm describing the contractual duties of the parties, hence, is the ‘orm in terms of which the legel comectness ofa judge’s decision must be assessed. A decision has a legel basis insofar as that material norm provides a clear standard for decision. Hart does not deny, of course, that a judge will typically stil have to decide (and to subsume under a sanction authorizing norm) in cases 6This notion of completeness needs to be interpreted in the light of Kelsen’s account of the Stufenbau or hierarchical structure of legal order, a conception that emphasizes the genetic character of the validating relations between norms belonging to a legal system. The doctrine of legal hierarchy portrays legal order, in its dynamic aspect, as a continuous process of law-creation that starts out with the enactment of general legal nomns, in a: cordance with the constitutional rules directly authorized by the basic norm, and that is continued by administrative or judicial decisions which apply the general legal noms enacted by the legislator to particular cases by enacting particular norms, Legal cience, when trying to validate a nomative legal statement, works in the reverse direction. It traces the particular norms of a legal system back to higher authorizing ‘noms and finally to the basic nom © ‘The theory of the Stufenbau makes two key claims. The first is that the legal content on any level of the legal hierarchy — legislative or adjudicative/administrative — can never be derived from the content of the norms on the higher levels by way of a logical operation, In a legal system, any step from one level of the hierarchy down to the next one below, from relative generality to relative particularity, is essentially dependent on actual concretizing human decisions, Legal norms on a higher rung of the pyramid never fully determine the content of the lower-order norms whose enactment they where the material standard is unclear. But for Hart, such decisions are to a certain degree exceptional in lacking a clear material legal basis. Kelsen’s account of the structure of legel noms expresses the idea that ‘ nomexception distinction of this hinel must be rejected. In Kelsen’s view, the primary sanction. ‘authorizing law is not a so much a determinate standard of decision to judges as it is an authorization of judges, empowering them to decide to apply sanctions should they be satisfied that the triggering conditions are present. For Kelsen, matevial norms, understood as pasts of sanction authorizing laws, provide a certain degree of guidance to the process of subsumption under such sanction authorizing laws. ‘But they never completely determine it. A decision therefore has a lege basis as good as any other, Kelsen concludes, as long as a judge can make a reasoned case that the tiggering conditions for the sanction provided by positive law are present or not resent. As soon as there is any law, it is therefore always sible to amive ata decision that has as good a legel basis as any other. See Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 55-15. © See bid, 57 7authorize. They only lay down procedural and material boundary conditions for the valid enactment of lower-order norms. The content of lower-order legal norms is therefore always contingent on how the people authorized to apply some set of higher order norms have chosen to exercise the powers conferred upon them by legal order. Every legal decision contains an exercise of discretion. According to Kelsen, this need for discretion characterizes legal systems all the way down from the most general constitutional norms to simple administrative orders or particular judicial decisions. ® ‘The second, corresponding key claim of the theory of legal hierarchy is that all exercises of power on any level of the hierarchy are, despite their partly discretionary character, governed by authorizing legal norms. Even a legislature can create valid law only by objectively complying with the constitutional rules authorized by the ba: norm Its position, Kelsen claims, does not differ qualitatively from that of a judge who is enacting a particular norm, on the basis of a general legal norm he is authorized to apply to particular cases, by ordering a debtor to pay a certain amount of money. The difference between the two cases is one of degree only. The legislature has a comparatively larger sphere of freedom of decision. But this does not mean that its acts are not controlled by the law, Valid exercises of authority are always legally limited, since an action can be a valid exercise of authority only as long as it objectively complies with the boundary conditions set by authorizing higher order legal norms.” Since all steps from one level of legal hierarchy down to the next require exercises of authority, legal science cannot fully determine how the top-down process of law-creation is to unfold, However, what legal science can do, according to Kelsen, is to “See ibid, 67-68. See ibid, 70. Bascertain whether a decision proposed or taken by alegislator, judge, or administrator as a matter of fact respects the limits of authority implied by the higher order legal norms under whose authorization the decision maker claims to be acting. A decision is to be considered valid, irrespective of its content, in virtue of the authorization provided by the basic norm, if and only if the decision taker objectively acted within the limits of his authority as defined by the higher-order norms he claims to apply. Note that Kelsen’s existence/validity thesis entails that a legal norm can only either be valid, and hence be nomnative, since it has been enacted in conformity with the norms that authorize its enactment or be null, ie, non-existent, for failure of the alleged act of enactment to comply with the applicable authorizing norms. Legal science, then, deals with the question whether enactments of norms are properly authorized or not, not with the question whether some authorized decision is @ correct or a mistaken exercise of the discretionary element involved in any legal decision Let me now take a second stab at the question I raised at the end of the previous section. As we have seen, Kelsen works with a notion of legal objectivity that claims that all disputes about the objective legal meaning of acts taking place in the temporal and geographical sphere of authority of a legal system, and not just those easily subsumable under determinate material norms, can be decided on a legal basis. The theory of the basic norm on its own, however, seemed to provide no help in understanding this claim ur analysis of the doctrine of legal hierarchy, I will now argue, puts us into a better position to see how the pure theory wants to sustain its strong conception of objective legal meaning 9It is clear that Kelsen does not defend completeness either by making the claim that the positive law as a system of general rules is perfectly determinate or by embracing a view that allows judges to use moral principles that cannot be shown to have been enacted in accordance with a basic norm as standards of legality. Rather, what might have seemed to be a claim to perfect determinacy of legal meaning tums out, on closer inspection, to be a claim to the perfect determinability of legal meaning through the progressively concrete and always partly discretionary decisions enacted by a hierarchy of decision takers corresponding to the hierarchy of legal norms. In other words, the objectivity of legal meaning is guaranteed by the fact thet an institutionalized legal hierarchy can finally decide any dispute about the legal meaning of human act in a way that legal science can show to have taken place under proper authorization from the basic nom, The open texture of law, then, does not impose an outer limit on the scope of legal objectivity, as suggested by theories that distinguish between adjudicative activity in a core of determinacy, in which judges enforce objective material legal standards, and adjudicative activity in a penumbra of uncertainty in which judges make law under the formal authority conferred by jurisdictional norms. The open texture of law, rather, is grist for the mill of the exercise of the legislative powers conferred by the first constitution, that exercise being understood as a process of progressive concretization of law that routinely takes place on all levels of legal hierarchy. ‘These observations, I believe, provide us with a clue as to the nature of the relation between validity and justification that guides Kelsen’s seemingly extravagant reading of the objectivity/subjectivity distinction, Kelsen made the claim, to recall, that only a normative science of law is able to make sense of normative statements like ‘A is 80legally obligated to pay 1000 talers to B’. Taking into account the theory of legal hierarchy, Inow want to contrast Kelsen’s understanding of the normative import of such statements with Hart’s as well as Raz’s by asking what makes such a statement true in each view. Hart’s account of what it means for A to be under a legal obligation to pay would presumably focus on the general material legal rule that is applied in a court's judgment that A ought to pay. What it means to say that A is under a legal obligation to pay is that there is a valid legal rule, identifiable on the basis of the rule of recognition, from which a judge can infer with sufficient clarity that A, given the situation at hand, is legally required to make the payment. Given the existence of such a sufficiently determinate rule, the existence of the obligation is not dependent on whether a judge in fact orders A to pay the money. If the judge takes a decision determined by a general legal rule he is not exercising authority or discretion, Rather, the judge's decision will be legally correct or mistaken depending on whether it tracks or fails to track A’s obligations. In the rare cases in which a sufficiently determinate rule does not exist, on the other hand, the discretionary decision the judge ends up taking will not be interpretable as the enforcement of a legal duty, While it may be formally Legal in virtue of the fact that the judge is institutionally empowered to decide the issue, his decision will, in effect, create law. ‘The fact that a decision has been taken in accordance with a sufficiently determinate general rule, however, tells us nothing, according to Hart, about the question whether the decision is morally justified. Should it tum out to be true that A ought perform his legal obligation to pay, all things considered, this will be so only because the 81rule happens to be morally justifiable from an extemal perspective. If a judge decides a case that is not determined by a general rule, the normative quality of his decision will depend on the soundness of his moral judgment, But in neither case will the material or formal legality of the judge’s decision be sufficient to morally justify its content Raz, as we have seen, takes issue with Hart’s unduly reductive conception of legal nomnativity. But his overall approach nevertheless remains quite similar to Hart's. In Raz’s view, the normativity of the law is a particular instance of the wider phenomenon of pr al authority. A person will have practical authority over another, according to Raz, if their relationship satisfies the ‘normal justification thesis’, ie. ifit is the case that “the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly." If applied to the law, Raz argues, this general conception of authority can do what Hart’s conception of legal normativity fails to do, namely explain how the fact that a course of action is required by a legally valid directive can make a pr al difference to those subject to the law. A nom is legally valid, according to Raz, if and only if it has membership, as determined on the basis of social sources, in a legal system. The law, moreover, necessarily claims that all legally valid norms are the results of valid exercises of practical authority. This claim need not always be justified. But to the extent that itis, the fact of the existence of a legally valid norm will constitute an exclusionary reason for ‘Joseph Raz, The Moraitty of Freedom (Oxford 1986), 53 82action applying to some subject of the law, a reason that would not exist were it not for the actual enactment of the nom. Raz’s normal justification thesis implicitly claims that the ultimate source of justified legal authority is always a person or institution whose decisions are identifiable, on the basis of a source-based test, as valid legal norms. To say that the law claims or possesses authority can only mean that the persons or institutions who enact the law claim or possess authority since only persons or institutions can make practical judgments on our behalf and take decisions on the basis of these judgments. For this reason, I will henceforth refer to Raz’s conception of authority as a personal conception of authority Whether persons or institutions enacting law possess justified authority depends, ions are more likely to according to the normal justification thesis, on whether their d lead us to conformity with the demands of reason than would decisions taken by ourselves, Let us assume that the normal justification thesis is justified with respect to the relationship between some person or institution formally authorized to enact law and some subject or group of subjects of the law. In this case, positive standards of legal validity will be needed to identify valid exclusionary reasons for action that apply to See Joseph Raz, Practical Reason and Norms (Princeton 1990), 121-129. This term is supposed to emphasize that relationships of authority, for Raz, are ultimately relationships between persons or persons and institutions that satisfy the normal justification thesis, relationships that need not be constituted by law and that are not dependent on explicit acts of authorization or consent. Its a corollary of the petsonal conception that legelity itself cannot be an autonomous sowce of justified normativity. The law's claim to authority, rather, has to be backed up by the existence of relationships of personal authority. I hasten to add that this terminology is not meant to suggest that relationships of ‘authority, as Raz portrays them, are somehow inherently despotic or that they have @ natural tendency to tum info ‘unjustifiable domination, A despotic relationship in the classical sense, afterall, is not simply a relationship that is not controlled by law. It is a relationship in which the dominating person tums the dominated person info an instrument of her private interests. Such relationships, of couse, need not be accepted as genuine instances of authority by Raz since they simply fail to satisfy the normal justification thesis. De facto relationships of personal authority may, of couse, degenerate into veiled relationships of dominance. But I see no good reason to assume that personal relationships of authonty must take such a {form or that they have a natural tendency to do so. The problem with Raz’s conception of authority, from a Kelsenian point of view, is not that it is too ‘authoriterian’, Rather, it paints too narow a picture of the possible grounds of justified legal authority. 83subjects of the law. But the fact that some decision was taken in accordance with the legal standards that allow us to identify its outcome as legally valid does not suffice to establish the existence of a valid exclusionary reason unless the normal justification thesis is satisfied on independent grounds. Legality, in other words, mediates antecedent relationships of authority between persons or persons and institutions, but it does not by itself constitute a ground of justified normativity. ‘The statement that A, according to the law, ought to pay 1000 talers to B, is true, according to Raz, if there is a legally valid norm applicable to the situation from which ‘we can infer, with sufficient determinacy, that A ought to pay. The statement will express a valid exclusionary reason, and thus make a practical difference, if the legislator who enacted the law has personal authority with respect to the persons affected by the law. As in Hart, a judge applying the law to the particular case is not, at least not usually, exercising authority. He is guided by the law in the same way as its primary subjects. If wwe are faced with cases in which a judge cannot arrive at a determinate decision on the basis of already existing law, we may have to ask whether the judge himself has personal authority with respect to the particular decisions he is to take. But such cases are, once again, considered untypical. In neither case, however, is legality itself a source of justified normative authority. It never does more than to communicate directives of ‘al authorities needs to be established on persons or institutions whose status as pra: independent grounds Kelsen’s conception of legal order leads to a picture different from both Hart's and Raz’s view. For Kelsen, A’s legal obligation to pay 1000 talers to B exists because a particular norm ordering him to pay has been validly enacted by a judge and thus forms 84part of the legal system. The enactment of this particular norm is authorized by some more general norm under which the judge subsumes the case at hand, a norm whose creation can, in tum, be traced back to the basic norm. But since any step from one level of Legal hier yy to the next in tum involves a fresh exercise of authority, the existence of A’s legal obligation can never exclusively depend, as it usually will in Hart, on the content of the general legal rule applied by the court. Rather, Kelsen’s theory of legal order emphasizes that the particular norm as well as the more general norm thet authorized its enactment are both members of a chain of partly discretionary yet legally limited decisions that were taken in cordance with the basic norm, ie. in accordance with a comprehensive normative scheme for regulating the use of coercive force in a society. ‘This thesis has implications for the relation of validity and justification. For Hart, as we have seen, the moral justification of a legal obligation enforced or created by a particular decision can be reduced to an assessment of the substantive moral quality of the political decisions of a legislator or of the judge, if the latter is deciding in the penumbra Kelsen’s rejection of a qualitative distinction between legislation and application of law, however, entails that we can never reduce our justificatory assessment of the particular decision ordering A to pay to an assessment of either the moral quality of the content of the general nom it applies or the moral quality of an exercise of discretion. on the part of the judge. The first reduction is impossible because the content of the higher order general norm does not fully determine the particular decision. The higher order norm, moreover, is not a pure exercise of political power. It was itself enacted in accordance with yet higher constitutional norms that forge a link to the basic nom. The 85general law's constitutional legality may therefore bear on its justification, and thus indirectly on the justification of any particular enactment authorized by it. The reduction to the moral quality of a judge’s exercise of discretion is impossible because any particular decision, even while being legally underdetermined, is taking place within a guiding framework set by higher order norms cular decision In other words, our assessment of the normative quality of any patti cannot abstract from the fact that the norm in question forms part of alegal system, thet it ‘was enacted in accordance with the conditions set by all higher order legal norms that form patt of the chain leading back to the basic norm, When we say, on Kelsenian grounds, that A ought to pay 1000 Telers to B, and when we validate this claim by recourse to a basic norm, we bring into play the legal system as a whole, as well as the fact of membership of the particular norm in that whole We make the claim, in other ‘words, that the norm’s membership in a legal system always has a sui generis, content- independent significance from a normative point of view. Kelsen’s claim to completeness, raised on behalf of legal order, and his idea of justification through recourse to a basic norm, thus, are linked in the following way. Someone who presupposes a basic norm accepts the claim that any valid legal norm, including any valid particular norm, ought to be considered as justified, regardless of its content, in virtue of the fact that its enactment took place in accordance with all limiting constraints which higher order legal norms impose upon the possibility of tracing it back to the basic nom. Kelsen’s understanding of the normativity of law, needless to say, marks a distinction not just fom Hart but also from Raz. Both views overlap to some extent insofar as they both claim that the fact of membership of a norm in a legal system may 86have an independent normative significance. But while Raz claims that legal norms have authority if they are enacted by persons or institutions who do not just claim but who actually possess practical authority on independent grounds, Kelsen argues that decisions taken by persons and institutions are justified, regardless of their content, as long as legal ence can show them to have been properly authorized by a basic norm. If they are so authorized they make a practical difference regardless of whether those who validly enacted any of the norms involved in the relevant chain of validity possess personal authority in a Razian sense. Put more strongly, properly authorized decisions make a practical difference precisely because the nommativity of a decision, once it is shown to have been properly authorized, no longer depends on whether those who took the decision exercised whatever discretion they were entitled to exercise wisely and benevolently. Hence, itis legality itself that transfers content-independent normativity on decisions taken in accordance with the basic norm instead of merely transmitting a personal authority attributable to those who enact the law. The normative authority of persons and institutions depends on the law and not the other way around. Hart’s and Raz’s views are animated by a conventional distinction between political and legal decisions Kelsen consciously rejects. According to this conventional view, law is created by political decision takers in the form of general rules and then applied by judges who, at least in the large majority of cases, need not and ought not engage in political decision taking What happens once we move outside of the core of determinate relationships between a general rule and its particular instantiations is only of limited jurisprudential concern. Whatever justified nommativity we can attribute to particular decisions determined by general norms, on the other hand, must result fom 87either the substantive moral correctness of the general norm or from the personal authority of the legislator. Any story about the justification of law will have to be located on the political side of the legel-political divide. Legal order itself, to the extent that general law is determinate, can at best preserve whatever normativity legislative decisions possess in virtue of their moral correctness or in vistue of their having been enacted by personal authorities Kelsen’s project, by contrast, aims to domesticate politics by integrating it fully into a legal framework, a framework that at least has the potential to ensure that political decisions will be more than mere exercises of arbitrary power”! The pure theory as a normative science, as we will see, is needed to make sense of the normative claims of the sovereign state, understood as a legal hierarchy, to the obedience of its subjects as claims grounded in legality. The pure theory is possible, it is more than a mere ideology, if we can reasonably assume that Legality is at least potentially more than an instrument of power and hence capable of sustaining the normative authority of the state. Kelsen is trying to argue, in other words, that the state's claim to obedience can make sense only if ‘we understand that claim as a claim based on an appeal to an ideal of the rule of law. Itis this justificatory power of the rule of law that Hart as well as Raz deny from the beginning 7 For a very different reading of Kelsen’s theory of legal hierarchy and his conception of the structure of Jegel norms see Paulson, “The Weak Reading of Authonity’ (above, n. 58), 139-155. Paulson takes the view that Kelsen’s empowerment conception of legal norms tends to conflict with Kelsen’s normativism, Legal orm, in their pnmary form as authorizations for the use of coercive force, are accessed to legal officials Yet, Kelsen normativism is clearly assuming that norms, in some sense, bind or oblige subjects of the law. But they certainly cannot have that force as mere conditions of the application of a sanction, The approach ‘proposed here assumes that authorizing norms do not just empower officials, They also, at leest potentially, put limitations on exercises of authority that can playa power constraining role, Insofar as they do, they are not just addressed to officials but also to citizens who have an interest in the question whether exercises of official power remain within their proper constraints. A conception of obligation can be developed indirectly. the secondary legal norms entailed by primary sanction authorizing norms will bind to the extent ‘that the primary nomas describe a system of constraints on the official exercise of coercive power that legitimizes valid or properly authorized exercises of power, 88Kelsen and theoretical anarchism: The pure theory as critique of ideology Let me try to further support my claim that Kelsen is out to offering a normative argument about the justificatory power of the rule of law so far by taking a look at Kelsen’s defense of the pure theory against theoretical anarchism or a ‘denial of the ought’. This defense, I will now argue, makes the best sense if it is understood as part of a normative political-theoretical argument. A denier of the ought, Kelsen claims, tries to reduce the existence of a legal norm, for example of the norm forbidding theft, to a set of “determinations of fact”. These include the observation that “some people try to induce others to forbear from theft or to punish thieves, and that people, by and large, do forbear from theft and do punish thieves”. Kelsen says, in almost Fullerian language, that this perspective “sees in the law (as in the connection between human beings who make the law and who carry it out) an enterprise comparable, say, to that of a hunter who sets out bait to lure game into a trap” and he claims that such a view “consciously ignores the normative meaning thet accompanies lawmaking acts”.”” Kelsen’s own description of the position of the denier clearly suggests thet the claim that the denier ignores the normative meaning of lawmaking acts is not sufficient to repel his attack, According to the denier, the use of normative legal language has to be considered as “ideological” and “unscientific” because there is no normative meaning of lawmaking acts. Something that does not exist, however, cannot be ignored, Normative legal statements, statements that report that something ought to be done according to the law, will simply no longer be true descriptions of people’s rights and obligations if there Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 32 89is no nonmative meaning of lawmaking acts. Kelsen admits as much by saying that the denier claims that “as ‘reality’ — and so as the object of scientific cognition — there is only the physico-psychical event subject to the law of cause and effect, that is to say, there is only nature.””? Kelsen is worried by this argument since he acknowledges that legal noms would not exist, in his technical sense that equates existence with validity, if we could not reasonably attribute a normative meaning to lawmaking acts. Such a normative meaning, as we have seen, cannot be grounded in natural reality. But if legal norms did not exist in the mode of objective validity, there could be no autonomous legal science concemed to describe the objective normative meaning of human acts falling under valid legal norms. No form of inquiry dealing with purely fictional objects that do not exist or, in the case of norms, do not have objective validity, could possibly be a science This may at first glance seem somewhat too sweeping an argument to be all that interesting But the denier of legal normativity — Kelsen also calls him a ‘theoretical anarchist’ — does not claim that we cannot reasonably talk about norms from a scientific point of view because all that really exists are particles of matter in motion. Recall Kelsen’s broad notion of natural science. It encompasses all sciences that work with the category of causality, and Kelsen himself clearly includes in this category disciplines like empitical sociology and psychology. The denier is fully entitled to draw upon the resources of these sciences in formulating his attack* Hence, he should not have a problem admitting that what we call ‘law’ exists as a social practice in something like the Hartian sense. His challenge arises from the fact that law that exists as an actual social ? Ibid, 33, As a matter of fact, Kelsen’s description of the ‘denier of the ought’ sounds distinctly Weberian. See for example bid, 13-14, 90practice can be described, as Kelsen is forced to acknowledge,”* from two different perspectives an empirical socio-psychological perspective based on the category of causality and @ normative perspective based on the postulation of a basic norm. The Genier’s attack draws its strength from the suspicion that the descriptions offered from these two perspectives might tum out to be incompatible A scientist analyzing law from a naturalist perspective will try to offer a causal explanation for why people engage in the social practice that we commonly think of as a legal practice. What the denier claims when he says that normative legal science is an ideology is that the best causal explanation for the existence of legal practices available to us — presumably to be given from a psychological or sociological perspective — may tum. out to make it impossible for someone who accepts it as true to continue to reasonably apply Kelsen’s normative perspective to legal phenomena A causal explanation of legal practices will not just refer to the kinds of facts that Hart claims define what it means for a social pra: of law to exist. The explanation will also address the motivating beliefs held by the participants in the practice and employ them to causally explain their rule- following behavior.’ The problem of incompatibility arises because we cannot rule out that this inquiry into the genesis of the beliefs that underpin people's actual law-abiding behavior will lead to the conclusion that the best causal explanation for why people hold these beliefs and hence engage in legal practices is one that will show these beliefs to be There axe vwnitings in which Kelsen appears to refuse to make this acknowledgement. See Kelsen, Der sodologische und der juistische Staatsbe riff (above, n. 5). Whenever Kelsen argues along this line, he tends to identify the social meaning of actions with its legal meaning. Any chatiteble interpretation should to stay clear of these obvious confusions. See Kelsen, Introduction to the Problems of Legal Theory (above, n. 1), 13-14 and 31 91a form of false consciousness. In this case, Kelsen seems to assume, the denier would be justified in his refusal to see in the law “anything but naked power”.”” Let us take a look at the form of causal explanation of the existence of legal practices that would undercut the authority of the law.” Let us assume that we are looking at a society in which de facto power and access to opportunities and goods are distributed unequally between a favored and a disfavored group. Let us assume further that the members of the disfavored group nevertheless accept the legitimacy of the system. They may believe that the system treats them unjustly, but they also acknowledge that they are under an obligation to obey the system’s laws. The system does not subject, members of the disfavored group to an open and completely arbitrary tyranny. The favored group is playing by some set of legal rules that are impartially applied and that are justified by a justificatory narrative that enjoys a certain degree of acceptance even amongst members of the disfavored group A critic might suspect that the disfavored group’s acceptance of the idea that it has an obligation to obey the law is nothing but a result of the unequal distribution of power and hence of no legitimating effect. The acceptance may, for example, be a causal effect of indoctrination that serves the interests of the powerful by perpetuating the legitimating narrative, That a belief in the legitimacy of the system is a causal effect of indoctrination does not entail, of course, that the belief must be false. Let us therefore assume further that there is no remotely plausible explanation of the acceptance, on the part of members of the disfavored group, of a belief in the law’s normativity, and hence of the justifiebility of the unequal distribution of power, which does not invalve the fact T Bid, 34. 7 The following is inspired by Bernard Williams, Truth and Truthfulness. An Essay in Genealogy (Princeton 2002), 225-233that this belief has the causal effect of stabilizing the unequal distribution of power ‘Those who accept the normativity of law under these conditions as members of a disfavored group, we can assume, would not do so if they were aware of these causal facts or if they were psychologically capable to face up to them Kelsen’s denier claims thet all legal systems fail this test. He is not just saying that some legal systems are predominantly unjust instruments of arbitrary power and that part of the reason why they are nevertheless stable is that they are bolstered by ideologies that engender irrational obedience to their law. The denier, hence, claims that legal science itself is an ideology because the legal systems it invariably describes as nomative are nothing but structures of domination, systematically favoring the subjective will of one group over that of another, unless all the laws they contain can be shown to be substantially just in content. The legel-scientific assumption that legal validity automatically entails some form of content-independent normativity, hence, never offers more than a veneer of respectability for unjustifiable brute facts of power ‘The most obvious positivist strategy for defending legal science against this claim, of course, is to argue that legal science does not endorse the normative claims of the law and thet the law itself is only an instrument in the hands of political power that may be used for good or for bad purposes. If one takes such a view one can go on to argue that the anarchist may be right in his assessment thet all political systems that rely on appeals to Legality in order to paper over disagreement about the substantive merits of their laws are tyrannies. But one will stress that the reason why these systems are tyrannies is not to be sought in the fact that they are legally organized but rather in the fact that the law is employed, by those who hold political power, for morally bad 93purposes. One will point out, moreover, that the fact that a system, just or unjust, can be described from a ‘legal point of view’ has no bearings on the question whether its decisions are to be considered as justifiable exercises of political power and that it is therefore wrong to claim that legal science will necessarily be complicit in whatever injustice the described system may happen to be guilty of Kelsen does not adopt this standard positivist reply. Rather, he thinks that a defense of legal science requires that we show that legal science, understood as a normative science, stands up to the denier’s critique, that its conception of normativity can be shown to be more than a piece of ideology. The only conceivable reason for taking this approach is the conviction that the law itself is something other then a mere instrument in the hands of the powerful, to be used for good and bad purposes. The possibility of a normative science in Kelsen’s sense, then, depends on the possibility of reasonably assuming that there are intemal values of legality that can justify exercises of political power taking place in legal form or under legal authorization regardless of their substantive moral quality and regardless of whether those who exercise political power have personal authority. In order to be able to offer his defense against the view thet this assumption is ideological, Kelsen cannot rely on the standard positivist claim that legal ence can always be dissociated, on a theoretical level, from the bad uses to which the law it describes may be put, so as not to be complicit in its abuses, He has to make the stronger claim that any political system — insofar as it can coherently be described as a legal order — embeds at least some moral value.” elsen, Introduction to the Problems of Legal Theory (ebove, n. 1, 32 characterizes the denien’s postion es making the claim that we ought to view “the law, that is lawmaling acts, solely as means of bringing about cerfain behaviour on the pat of those human beings to whom such acts are directed...” 94How, then, does Kelsen argue that normative legal science is not ideological” Let us note first that Kelsen’s talk about ideology is slightly confusing since he employs the term in two ways.® In a value neutral sense, he uses it to draw a distinction between natural and normative reality. The pure theory is concemed with the immanent meaning, nomms®* This the “Eigengesetzlichkeit” or intemal lawful structure, of systems of makes it into an ideology, Kelsen explains, insofar as it is concemed with a system of nomnative facts to which natural reality will never filly correspond, In a second, pejorative sense, however, the term ‘ideology’ contrasts with ‘science’ and the question. Kelsen is worried about is whether jurisprudence’s scientific credentials can be defended against the charge of being an ideology in this second sense. The nature of the worry comes out quite clearly in the following passage “Precisely through this anti-ideologicl stance, the pue theory of law proves itself asa tue legel science, Whose immanent espization is the unveiling of the object of its cognition, Ideology veils eality by ‘uansfiguring it, with the aim of conserving, defending it, or ideology veils realty by distorting it, with the im of atacking, destroying it, and replacing it with enother reality. All ideology hs its roots in will, not in cognition; ideology stems fiom certain interests or more conetly, from interests other than the inferest in an Note that the distinction between science and ideology Kelsen is drawing here is not aligned with the distinction between theoretical or descriptive-explanatory and nomnative knowledge. Kelsen defines an ideology simply as a form of individual or collective willfid belief while a science is understood as a form of cognition that is aiming truthfully to describe something which has objective existence, something that is not a © See ibid , 34.36, See ibid. 35 = bid 95mere figment of a collective imagination. What makes a statement scientific, hence, is the fact that its utterance is neither an exercise of authority nor the expression of a subjective preference, both of which are, in Kelsen’s terminology, rooted “in will, not in cognition” ©? But this distinction is not as such aligned with the distinction between the theoretical and the pr al. An example may help clarify this. If a Kantian tells me that I ought not to lie, he is not exercising authority or issuing @ command. But neither is he giving me advice or making a detached normative statement in the Razian sense, ie telling me what I ought to do on the assumption that Kantian moral theory holds true. If] believe that Kantian moral theory is false I will, of course, refuse to take his utteranc as a correct statement of what I ought to be doing. But if I take this view, I will have no practical interest in contemplating the possibility of the truth of Kantian moral theory. Kelsen assumes that a defense of legal science as normative science finds itself in an analogous position, Kelsen, in other words, cannot defend the practice of using normative legal statements, with Raz, by saying that the pra: ctice is meaningful since the law is an institution that may or may not possess authority, depending on whether those who create it have personal authority over those who are supposed to follow. Since the objective validity of particular legal norms depends on the objective validity of a basic nom, the question whether there can be a legal science, in tum, has to depend on whether presupposing a basic norm is compatible with an interest in truth and with giving thet interest absolute priority over tendencies to willful belief, laxity in reflection, or interests in deception. Legal science, in other words, is possible only if we can reasonably entertain the hypothesis that jurisprudence is justified in making a general attribution of nomnativity to the law. Legal ‘would be an ideology in the pejorative sense, on the ® Dbid, 19. 96other hand, if we had sufficient reason to believe that general attributions of normativity to the law are necessarily nothing but ideological cover for illegitimate arbitrary power. Kelsen’s defense of the idea that it is at least possible to reasonably adopt the nomnative perspective when interpreting legal phenomena appears to be somewhat hesitant, He admits that there is no knoe -down argument against the denier’s point of view: “The pure theory is well aware that the specifically normative meaning of certain material facts, the meaning characterized as ‘law’, is the result not of a necessary interpretation but of a possible interpretation, possible only given a certain basic presupposition [..]. And the pure theory is well aware ‘that one cannot prove the existence of law [...], that one cannot adduce compelling arguments to refute a posture like theoretical anarchism which refuses to see anything but naked power where jurists speak of law’ But a kn down argument, Kelsen suggests, may not be needed. The proponent of a nomnative legal science does not have to demonstrate conclusively that no successful general ‘critique of ideology’ undercutting the law’s claim to normativity will ever be put on the table. What Kelsen argues is that, given the practice of the use of normative legal statements, those who want to question the possibility of legal science must bear the burden of proof ** * Tid, 34 © Kelsen’s claim that legal science does not offer a necessary interpretation is inspired by Hermann Coben's regressive version of transcendental argument which assumes a fact of science and ties to

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