Ratio Juris. Vol. 3 No. 1 March 1990 (29-45) copyright 0 Eugenio Bulygin 1990

An Antimony in Kelsen’s Pure Theory of Law*

EUGENIO BULYGIN

Abstract. Some important ideas in Kelsen‘s Pure Theory of Law can be traced back to Kantian tradition, which has been very influential in Kelsen’s thought, particularly in his early period. Among them we find the distinction between two radically different worlds (the world of facts and the world of norms), the normativity of legal science and the idea of validity as a binding force, based on the famous doctrine of the basic norm. These tenets and, especially, the use of a normative concept of validity prove to be incompatible with Kelsen’s positivistic programme of a value-free legal science. The science of law cannot state that legal norms are obligatory or binding without trespassing the limits of Kelsen’s ideal of a legal science; on the other hand, it is possible to define the concept of a legal system without resorting to the basic norm. So, if Kelsen is to be regarded as a consequent positivist, the Kantian ingredients of his theory must be rejected and the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force.

In spite of the fact that the idea of validity plays a very central r61e in Kelsen’s Pure Theory of Law there is no consensus among scholars about the exact meaning of this rather elusive term. But even those authors who agree about the concept of validity used in fact by Kelsen still disagree in their appraisal of this fact.

In a lecture delivered at the University of Buenos Aires almost thirty years ago Alf Ross pointed out that Kelsen faces serious difficulties due to his use of the concept of validity as a binding force which Ross characterized as “quasi positivism” (Ross 1961). In a recently published book Carlos Nino comes back to the same topic (Nino 1985) maintaining, in coincidence with Ross, that Kelsen uses a normative concept of validity, closely akin to the one we find in classical authors of natural law tradition. But Nino’s attitude towards this phenomenon is

An earlier version of this paper was read at the Hans Kelsen Institute, Vienna, in November 1987. I am greatly indebted to the Director of the Institute Prof. Robert Walter and the members of his seminar for a most stimulating discussion.

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diametrically opposed to that of Ross‘s. Whereas Ross maintained that the concept of validity as a binding force should be removed altogether from legal theory and particularly from Kelsen’s Pure Theory of Law, Nino believes that the only correct interpretation of Kelsen is achieved by acknowledging that his concept of validity is normative and not descriptive. Unless we do that, we cannot grasp, according to Nino, Kelsen’s ideas about the nature of law.

In view of such basic disagreements it seems advisable to re-examine the relevant aspects of Kelsen’s Pure Theory in order to determine the exact r81e played in it by what Nino calls the normative concept of validity. This is what I propose to do in the present paper.

1. The Kantian and the Positivistic Ingredients in the Pure Theory of Law

It is not easy to draw a coherent picture of Kelsen’s theory of law, mainly owing to two kinds of difficulties. In the first place, Kelsen‘s written work ranges over a span of nearly seventy years, a fact that makes it easily understandable that many of his views on some central topics of legal philosophy underwent a considerable change during his long life. This is why it is almost impossible to speak of the Pure Theory of Law; none of Kelsen’s books, not even his monumental second edition of Reine Rechtslehre (1960), published when he was nearly eighty, can be regarded as the final version of his thought. It is an astonishing fact that the last twelve years of his life (he died in 1973 at the age of ninety one) are specially rich in new ideas of far-reaching consequences for his theory of law.

In the second place, and this is a more serious problem, we find in Kelsen‘s thought two groups of ideas that stem from quite different philosophical traditions and are not only difficult to reconcile, but also - as I shall try to show in some detail - radically incompatible. Both the Kantian and the positivistic trends are vividly present in Kelsen’s works and some of his main tenets can be traced back to these two strongly opposed philosophical traditions. Being incompatible, some of his ideas corresponding to one of these traditions must be removed in order to make the Pure Theory a coherent doctrine and it is, I think, to a certain degree a matter of taste which of the two should be preferred. Personally I regard Kelsen‘s positivistic views, which made of him together with Max Weber one of the founding fathers of the positivistic approach to social sciences and perhaps the founder of modem legal positivism, as more important, and 1 shall try to give reasons in support of this choice. Besides, Kelsen himself showed in the last years of his life an increasing preference for the ideas I call positivistic, and though as a matter of fact he never explicitly rejected his Kantian heritage, his philosophic evolution exhibits a clear tendency towards the positivistic ingredients of this theory of law.

From a chronological point of view we can roughly distinguish three main periods in Kelsen’s thought. In the first period the Kantian and the positivistic

A n Antinomy in Kelsen's Legal Theory 31

elements coexist more or less pacifically and Kelsen seems not to be aware of their antagonism. This period corresponds approximately to the first thirty years of his philosophic production (1911-1940); it includes such books as Hauptprobleme (1911), Allgemeine Staatslehre (1925) and the first edition of Reine Rechtslehre (1934). (Only works directly concerned with philosophy of law will be mentioned in this connection.) The second is a transition period of about twenty years, from 1940 when Kelsen leaves Europe and settles in the United States to 1960. The main publications of this period are General Theory of Law and State (1945), the French version of Reine Rechtslehre (Thborie Pure du Droit, 1953) and the second edition of Reine Rechtslehre (1960). The third period, predominantly positivistic in spirit, includes some very important papers like "Derogation" ([1962] 1973) and "Recht und Logik' (1965) and his unfinished work Allgemeine Theorie der Norrnen (edited in 1979 by R. Walter and K. Ringhofer).

Kelsen's main ideas of Kantian origin are: (I) the characterization of legal norms as ideal entities belonging to the world of Sollen (ought), distinct from the world of natural reality or the world of Sein (is); (11) the conception of validity as a binding force (that is what, following Nino, I call the normative concept of validity); (111) the normativity of legal science, and (IV) his well known doctrine of the basic norm as a transcendental category.

All these theses are closely connected: It is because norms are ideal entities belonging to a world that differs radically from the real one, that their existence is not a (natural) fact; the specific existence of norms is their validity, understood as a binding force. A norm exists if and only if it is valid or binding, i.e., when their addressees ought to behave as the norm prescribes. Legal science is normative not only in the sense that it is concerned with norms, but mainly because sentences in which it describes law are normative and they are normative because they do not refer to natural facts, but to valid norms, i.e., to their obligatoriness or binding force. On the other hand, the idea of validity as a binding force is based - as we shall see later in some detail - on the hypothesis of a basic norm, whose main r61e is to make the idea of validity compatible with Kelsen's positivistic ideal of a wertfreie Rechtswissenschaft (a non-evaluative legal science).

Kelsen's ideal of a positivistic legal science is related to four fundamental theses: (V) a sharp separation between is and ought, (VI) the non-cognitivist conception of norms and value judgments as prescriptions that are neither true nor false, (VII) the positivity of law, the thesis that all law is positive, i.e., is created and annihilated by human actions, or - to put it in more cautious terms - legal norms come to exist and pass out of existence as a consequence of certain human actions, and (VIII) a sharp distinction between description and prescrip- tion or evaluation, between reason and volition, cognition and creation of law, science of law and legal politics.

The non-cognitivist conception of norms as prescriptions that are neither true nor false (thesis VI) has far-reaching consequences; it means that there are no

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normative facts that would make norms true, i.e., no reality corresponds to norms. This is the main difference between norms and propositions. Moreover Kelsen adopts the same skeptic position regarding values: Value judgments also lack truth values; so there are no objective values. But though Kelsen has always been a skeptic in matters of values, the characterization of legal norms as prescriptions appears at a relatively later stage of his philosophic development. In the first period of his thought norms are characterized as judgments or propositions (Kelsen 1911, 1925, and 1934, 21-22) and he strongly objects to their characterization as imperatives even in Kelsen 1945. Only in the second edition of Reine Rechfslehre (Kelsen 1960) does he explicitly identify norms and imperatives and at the same time he extends the notion of ought (SoIlen) to a11 deontic modalities: obligation, prohibition, permission and authorization (Emtiichfigung). Later he also adds derogation to this list.

Thesis VII states that all law is positive law; this means that it is created and annihilated by human acts (this holds both for enacted as well as for customary law). This thesis entails two important consequences: first, that there is no natural law, and second, that legal norms have a temporal dimension; they begin to exist at a certain moment and cease to exist on a later occasion; in other words they are historical. This thesis was firmly maintained by Kelsen throughout his life.

A sharp distinction between the pairs of concepts: description and prescrip- tion, cognition and evaluation, science and politics (thesis VIII), can be regarded as the core of the positivistic programme of a value neutral science, whose champions in the field of the social sciences have been precisely Kelsen and Max Weber.

The three pairs of concepts are strongly related. If norms and value judgments lack truth values, they are not subject to rational control. Valuations and norms only express certain preferences and there are no objective criteria for settling a conflict between ultimate preferences. The reason for it is that there are no evaluative or normative facts. Instead, the descriptive propositions are true or false; their truth is objective in the sense that it does not depend on the person who utters the proposition, but only on the fact that makes it true. So we must distinguish sharply between cognition of law, expressed by true descriptive propositions, and creation of legal norms which is an expression of certain valuations. So legal science which aims at the cognition of law can only describe it, but should not evaluate it and still less create legal norms. All activities aiming at the evaluation of the law, creation and modification of legal norms correspond to legal politics and have nothing to do with science. So thesis VIII leads to an important step of "purification" of legal theory: removal of all evaluative (moral and political) elements.

Kelsen did certainly not ignore the fact that jurists in general and legal dogmaticians in particular often perform quite different activities from mere description of existing law. But he was not anxious to describe what jurists actually do, but to shape a model of a legal science that would satisfy the

A n Antinomy in Kelsen‘s Legal Theory 33

requirements of his programme of a positivistic science and to provide methodo- logical foundations and conceptual tools for such an enterprise.

My contention is that the “Kantian” theses I-IV and especially thesis 11, validity as a binding force, are incompatible with the ideal of a positivistic science, such as it is expressed in theses VI-VIII. Only thesis V is to be found in both traditions and so is acceptable for both of them, but it is susceptible to two different interpretations. On an ontological interpretation (that is pre- dominant in Kelsen’s early writings) the thesis of a sharp separation between is and ought is related to his distinction between two radically different realms or worlds: the world of ought and the world of is (thesis I). But thesis V can also be given a more sober interpretation which, with due caution, might be called semantic. On this interpretation thesis V means that prescriptive proposi- tions cannot be inferred from descriptive propositions alone and, conversely, that descriptive propositions do not follow logically from prescriptions alone (cf. von Wright 1985). In this form thesis V is fully acceptable for the most rigorous positivist.

2. The Theory of Two Worlds

Both the Kantian tradition (as expressed in theses I-IV) and the positivistic programme of a non-evaluative science (wertfreie Wissenschaft) have coexisted in Kelsen’s works for a very long time. But in spite of his efforts he never succeeded in reconciling the two incompatible elements of his theory. Towards the end of his life the positivistic tendencies became dominant and Kelsen came to reject, sometimes implicitly (as in the idea of two worlds and the notion of validity as a binding force) and sometimes explicitly (as in the theory of the basic norm) his main theses of Kantian origin.

The idea of a sharp separation between the world of ”is” and the world of ”ought” appears already in his second book (Kelsen 1911), in which Kelsen is anxious to isolate the ”proper object” of legal science that should enable him to distinguish it from other sciences, (This requirement rests on the assumption that every science must have its proper object. There are many reasons against this assumption, but I shall not discuss this question here.) Such proper object is the positive law, understood as a set of legal norms created by human actions. According to Kelsen, when a jurist states, e.g., that he who commits murder ought to be punished, he is not interested whether somebody has actually committed a murder, nor is he interested whether the punishment will actually take place or not. He is only concerned with what ought to be, not with what is the case, i.e., with the norm and not with any actual behaviour. And ”Sollen” is a special category of thought (Denkkategorie) that is unreducible to “Sein”. (Kelsen 1911, 7-8).

Now, it is easy to show that a sharp separation between the “world of ought” and the ”world of is“ cannot be and as a matter of fact is not maintained in the frame of the Pure Theory of Law, even in its classic formulation (Kelsen’s

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second period). Both worlds are strongly intertwined and a study of norms necessarily requires taking into account certain facts. Even if it were true that jurists are not interested in the actual behaviour of murderers and officials who punish them (which is rather doubtful), there are other actions without which there would be no norms.

(i) In the first place there is the action of issuing the norm performed by the norm authority. As all legal norms are positive norms (cf. thesis VII), the action of the authority that issues the norm is at least a necessary condition for its existence.

(ii) In the second place, actions consisting in cancelling or derogating a norm must also be considered, since the derogation of a norm puts an end to its existence (at least in some sense of this term). So even a very pure theory of law must take into account the acts of law-making and the acts of cancelling norms.

(iii) Another necessary condition for the validity (i,e., existence) of a norm is according to Kelsen the efficucy of the legal order to which this norm belongs: "If a legal order is no longer efficacious, its norms cease to be valid, i.e., cease to exist" (Kelsen 1960, 215). Moreover even a particular norm ceases to be valid if it ceases completely to be efficacious (cf. Kelsen 1960, 220).

This shows clearly that there never was such a sharp separation between the world of facts and the ideal world of norms, as is required by thesis I. The existence of a positive legal norm (and according to thesis VII there are only positive legal norms) cannot be ascertained without making reference to certain facts.

In Kelsen's third period this connection between norms and facts becomes much stronger for he emphasizes that there can be no norm without the cor- responding act of prescribing (Kein Imperutiu ohne Imperator). Other clear signs of his increasing preference for the ideas I call positivistic are:

(a) Acknowledgement of the fact that there are no logical relations between norms, a thesis that Kelsen puts forward in "Recht und Logik' (1965a), and in Allgemeine Theorie der Norrnen (1979).

(b) Acceptance of the possibility of coexistence of incompatible or contra- dictory valid norms within the same legal order. Until 1965 (see Kelsen 1965a), Kelsen refused to accept the possibility of normative conflicts, which was reasonable as long as he used the normative concept of validity; so I take this acceptance as a sign that he adopts instead a descriptive concept of validity.

(c) Rejection of the theory of the basic norm as mere fiction (in Kelsen 1963). All this shows that theses I and I1 if not explicitly rejected, have been implicitly

abandoned in favour of doctrines that are incompatible with them.

3. Normativity of Legal Science

Before we proceed to the analysis of the concepts of validity used in the Pure Theory of Law, a few words must be said about the normativity of legal science,

A n Antinomy in Kelsen's Legal Theory 35

i.e., thesis 111, in which Kantian influence shines clearly through. This thesis played a very important part in Kelsen's thought for it enabled him to draw a distinction between factual (causal) and normative social sciences, i.e., between sociology on the one hand and legal science on the other. The difference lies in the kind of propositions used by these sciences for the description of their objects. The idea is that legal science is normative not only in the sense that it describes norms, but also in the sense that its propositions are themselves normative. But clearly they are normative in a different sense from the one in which norms are said to be normative. Nevertheless it is by no means easy to discover what this sense is. Kelsen's well known distinction between legal norms (Rechtsnormen) and legal propositions (Rechtssatze, a term that is sometimes misleadingly translated as "rules of law" (Kelsen 1945) or "r2gles du droit" (Kelsen 1953)) appears in a relatively late stage of his philosophic development (Kelsen 1945). In what I have called the first period, the two terms "Rechtsnorm" and "Rechtssatz" are used as roughly synonymous, following the terminological tradition of German legal theory, in which "Rechtssatz" is normally used to refer to legal norms. This is reflected in the title of the second book written by Kelsen: Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatz (1911), where the term "Rechtssatz" refers to a legal norm and not to a proposition of legal science. In Allgemeine StaatsIehre (1925) he speaks of the "objective law constituted by norms or legal propositions." The same lack of terminological and conceptual distinction between norms and legal propositions we find in Kelsen 1934. Many years later, Kelsen admitted that he did not distinguish terminologically between norms and propositions, but at the same time he claimed to have had always in mind the distinction between the creative function of legal authority and the cognitive function of legal science (Kelsen 1965b). In view of the foregoing quotations even this claim appears as an exaggeration. Though the distinction appears more or less clearly stated in General Theory of Law and State (1945), even as late as in 1953 (Thdorie Pure du Droit) we find a statement which is highly characteristic of Kelsen's early position:

We can thus state simultaneously that the rules of law are judgments formulated by legal science and that the object of such science is constituted by legal norms. Here there is no contradiction. Without a doubt, one can consider that the norms created and applied within the framework of a legal order have the character of legal norms only if it is ascribed to them by legal science. It is the role of this science to attribute to certain acts the objective meaning of legal norms. But this does not prevent us stating that legal norms form the object of legal science or, which is the same, that law is a system of norms. This definition is in full accord with Kant's theory according to which knowledge constitutes or creates its object, for what is in question here is an epistemological creation and not something created by man's work in the sense that the law-maker creates a law. In the same way, natural phenomena which are the object of causal sciences are only created by them in a purely epistemological sense. (Kelsen 1953, 45)'

English translation by Anne Collins.

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This quotation shows one of the central "Kantian" ideas in Kelsen's early thought: the epistemological creation of its object by a science, in our case the "creation" of legal norms by the science of law. Only by means of their recognition by legal science do certain acts, like those of the legislator, become law-creating acts and give rise to legal norms. This is why legal science is a normative science.

But already in General Theory of Law and Stafe (1945) Kelsen says that judgments of legal science (i.e., "rules of law") should not be confused with legal norms created by legal authorities. And he emphasizes that he uses the term "rule of law" in a descriptive sense. In later works and especially in Kelsen 1960 a clear distinction is drawn between legal noms issued by legal authorities, which are prescriptive and hence - according to thesis VI - lack truth values, and legal propositions formulated by legal science and which are descriptive of norms and so true or false. In this way Kelsen gives up the idea of the epistemological creation of legal norms and assigns to legal propositions a more modest r61e of descriptions of norms created by legal authorities. This, together with the concept of existence of a norm as an empirical fact (a concept that was already implied in thesis IV, but explicitly introduced in Kelsen's third period) leads to the rejection of thesis 111, a step that Kelsen did not make, but which is implicit in his later writings.

Kelsen's change with respect to thesis 111 explains Hart's perplexities (cf. Hart 1963) when trying to find a coherent intepretation of the theory in view of Kelsen's insistence in maintaining thesis 111, without realizing that this thesis rises and falls with the Kantian idea of epistemological creation of legal norms by legal science, a thesis that Kelsen explicitly gave up after 1960. The trouble is that once the idea that legal propositions are mere descriptions of legal norms is introduced, the thesis of the normativity of legal science in the special sense which Kelsen gave to it in his early work, i.e., as normativity of propositions used by legal scientists, is deprived of any support and remains hanging in the air. Therefore since the publication of Kelsen 1960 the theory of normativity of legal propositions became a self-contradictory doctrine, because if these propositions are descriptive, then they are not normative. The occurrence of the term "ought" is immaterial, for it is the meaning of this term that makes the difference. In other words, even if the sentences formulated by legal science are "ought-sentences," the propositions expressed by them are descriptive and not normative. Kelsen's attempt to save the doctrine by introducing the dis- tinction borrowed from Sigwart between the prescriptive and the descriptive "ought" only reveals his confusion between sentences as Iinguistic entities and propositions as their meanings.

4. Validity, Membership and Existence of Norms

Kelsen says repeatedly that validity is the specific existence of norms. But unfortunately and contrary to what Nino seems to believe (cf. Nino 1980a, 132ff.) the term "existence" is in his use at least as ambiguous as "validity."

An Antinomy in Kelsen's Legal Theory 37

In order to avoid the frequent ambiguities of juristic parlance I shall distinguish between four different concepts of existence. (Though the term "existence" belongs clearly to philosophic jargon, the corresponding conceptual distinctions appear already in ordinary legal discourse.)

(A) Factual existence. When we say that a norm to such and such effects exists in a certain social group, we mean that this norm is in fact in force in that group. The concept of factual existence or of being in force is explicated differently by different authors. Kelsen uses for it the term "efficacy" (Wirksamkeit); a norm is efficacious if it is obeyed by legal subjects or applied by legal authorities. Alf Ross, at least in the English translation of Law and Justice (which is not very fortunate), uses the term "validity" (Ross 1958).' A norm is valid in this sense when the prediction that it will be used in future judicial decisions for justifying them is true (cf. my analysis of this concept in Bulygin 1965).

Perhaps the most illuminating analysis of factual existence is given by Hart in The Concept of Law in terms of the acceptance of the norm as a standard of behaviour by the social group; this means that members of the group regard conduct in conformity with the norm and reaction against those who break the norm as required and justified by it (Hart 1961, 244). This entails that they regard the norm as obligatory or binding, a fact that is highly characteristic of what Hart calls the internal point of view.

This factual concept of existence is descriptive (to say that a norm exists in a certain society is to state a fact), and it admits of different degrees of intensity: A norm can exist or be in force to a stronger or weaker degree, which depends on the degree of its acceptance. Besides, this concept is relative to a certain social group and to a temporary moment.

(B) Membership. Sometimes a norm is said to exist when it belongs to a certain system of norms. Usually jurists accept a genetic criterion of membership: A norm is regarded as belonging to a given system if it has been created by a competent authority and not derogated by the same or some other authority of the system.

This concept is often referred to by the term "validity" (cf. von Wright 1963, 194ff.) and, as we shall see presently, Kelsen also uses - at least sometimes - the term "valid' in this sense. The concept is also descriptive and relative (one and the same norm can be member of one system and not of another: it can belong to a system at one time and not at another time).

( C ) Existence as validity. This is a normative concept: A norm exists or is valid in this sense if and only if it is obligatory or binding. (In order to avoid confusions, I shall use the term "valid" only in this normative sense, unless otherwise indicated.)

It has been stressed by Nino (1978, 358; Nino 1985, 8) that the concept of

Much better is the Spanish version (Ross 1963), in which the distinction between the expressions "gyldig ret" and "gaeldende ret" of the original Danish is preserved by means of the terms "vilido" and "vigente."

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validity as a binding force is normative in the sense that to say that a norm is valid is not to state a fact, but to prescribe an obligation to obey the norm in question; hence judgments of validity are themselves normative, i.e., they are norms. But according to Nino, a binding force implies not only that one ought to do what the norm prescribes, i.e., that the norm succeeds in establishing the obligation it purports to establish, but also that it is justified. This pre- supposes a conception of "justified normativity," which - according to Nino and Raz (cf. Raz 1979, 122-45) - Kelsen shares with natural law theorists. Nino maintains moreover that the use of this normative concept of validity not only can be backed by explicit quotations from his writings, but even "is imposed by the general structure of his theory" (Nino 1978, 360).

This concept of existence differs from the others not only because it is norma- tive, but also because it is an absolute concept.

(D) Formal existence. Jurists sometimes treat as existent norms which are neither accepted nor efficacious, which do not belong to a system of norms (not having been issued by a competent authority) and are not regarded as binding. Such norms exist (in this broad sense) either if they have been formulated by somebody (who need not be a legal authority) or if they are a logical consequence of formulated norms. A typical case is a draft of a statute which has not yet been promulgated: Its norms do not exist in any of the first three meanings I have distinguished for they are neither accepted, nor binding, nor do they belong to the legal order, and yet it makes perfect sense to say that they are there.

This kind of existence, which for lack of a better term I call "formal" is a neglected child of the general theory of law: Philosophers of law rarely if at all take notice of it, and yet it is very important, for in a certain sense it is a basic notion concerning the existence of norms (cf. Alchourr6n and Bulygin 1989, where this concept of existence is analyzed in detail). Obviously this concept as well as the concept of membership (which presupposes that of formal existence) is not applicable to customary norms.

The four concepts of existence so far distinguished are of course not in- compatible: A norm can exist in all four sense, or in only some of them. But some of these notions are not independent. I have already remarked that membership presupposes formal existence. Kelsen would say that validity implies factual existence. But a norm can be in force in a given society without being formulated (this is the case of customary norms) and without being binding, though of course in order to be in force norms must be regarded as such by those who use them.

Kelsen pays little attention to concept (D), but the other three can be traced in his writings, though he uses the same term "validity" to refer both to member- ship and binding force, a fact that has given rise to a lot of confusion. Nino has contributed to them in his very interesting paper whose title sounds almost ironical: "Some confusions around Kelsen's concept of validity" (Nino 1978).

Nino is probably the author who most consequentially has developed the idea of normative validity; he not only emphasizes its r81e in Kelsen's theory, but

A n Antinomy in Kelsen's Legal Theory 39

assumes it as basic for his own views on law and morality (cf. Nino 1980a, 1980b, 1984). But he exaggerates the importance of this concept for the Pure Theory of Law. The consequences that Nino draws from Kelsen's premises go far beyond Kelsen's own statements and intentions and show clearly that the concept of binding force is inconsistent with legal positivism and the task of legal science as it is postulated by Kelsen. Kelsen would certainly not subscribe to the view that "the only conceivable type of normativity is justified normativity" (Nino 1978,373) and that to say of a norm or a system of norms that it is valid is tantamount to asserting its justifiability. Nor would he accept that judgments about the validity of legal norms are of the same logical nature as norms or that he uses the same concept of validity as the traditional natural law doctrines. In fact, the concept of existence as a binding force is connected with Kelsen's idea that norms are ideal entities belonging to the world of ought (thesis I). We have already seen that this idea was if not altogether abandoned at least considerably weakened in the last stage of Kelsen's thought. His late conception of norms does not require the normative concept of validity nor the idea of norms as ideal entities for it is very close to the expressive conception of norms (cf. Alchourrh and Bulygin 1971, 1981, 1984; Bulygin 1985).

Nino's remark that "some authors, like Hart and Alchourrbn and Bulygin, assume that Kelsen's notion of validity is equivalent to membership without much discussing the matter" (Nino 1978, 363) is - to say the least - an over- statement. I am not sure that Hart ever made such a dogmatic assumption; but it certainly was not made by the other two authors mentioned by Nino. What we intended to do in Normative Systems (Alchourr6n and Bulygin 1971) was to reconstruct the concept of membership, without claiming as Nino seems to believe, that this is the only concept of validity in Kelsen. In this sense to identify Kelsen's validity with the notion of binding force would be as mistaken as equating it with membership, for the very simple reason that behind the term "validity" hide two different concepts. But in spite of the fact that Kelsen uses two different concepts of validity, one of them - precisely the normative notion of binding force - proves to be incompatible with his positivistic views, as I shall try to argue in the next sections of this paper. So what is really imposed by the general structure of Kelsen's positivistic theory of law is the rejection of the normative concept of validity as a binding force, as was already proposed by Alf Ross.

5. Membership and the Definition of Legal Order

For Kelsen there is a close connection between membership and validity.

The legal order is a system of norms. What is it that makes a system out of a multitude of norms? When does a norm belong to a certain system of norms, an order? This question is in close connection with the question as to the reason of validity of a norm. (Kelsen 1945, 110)

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In fact Kelsen seems to believe that the concepts of membership and binding force are coextensive; this might explain why he uses the same term "validity" to refer to both of them. This would mean that all norms and only norms that are members of a legal system are binding. I agree with Nino that this is a serious mistake.

According to Nino one must be careful in distinguishing between two quite different problems: the validity of a norm and its membership regarding a par- ticular system of norms. When Kelsen says that a norm is valid when it derives its validity from a valid norm of the system, his formulation is misleading. This statement should be split into two: (a) A norm is a member of a given system when it derives from another norm which belongs to that system; and (b) A norm is valid when it derives from another valid norm (cf. Nino 1978, 363).

This is, I think, a sound strategy; therefore Kelsen's concepts of validity should be analyzed in two steps; in this section I shall analyze the statement (a), i.e., Kelsen's criterion of membership, leaving for the next the analysis of the statement (b).

I shall try to show that no basic norm is needed for the problem of establishing whether a given norm belongs or does not belong to a certain system (the problem of membership) and for the definition of the concept of a legal order.

In fact the problem of membership is absolutely independent of any specula- tions on the binding force of legal norms. It makes perfect sense to ask whether a given norm is a member of a certain set of norms even if we do not regard them as obligatory or binding. For instance, one may very well ask whether a certain norm belongs to the mafia code or to a draft of a statute that has never been enacted.

A satisfactory characterization of a certain legal order a can be provided by a recursive definition of membership along the following lines:

(i) The set of norms C belongs to (is a member of) a. (ii) If there is a norm p, that authorizes or confers power or competence on

an authority x to issue a norm q, and p belongs to a, and x issues q, then q is a member of a, unless it is derogated by a competent authority.

(iii) All norms that are logical consequences of the norms beIonging to a, are members of a (cf. Alchourr6n and Bulygin 1971, 72-74; Alchourr6n and Bulygin 1979, 73-76).

Rules (i), (ii) and (iii) jointly determine the conditions under which a norm belongs to (or is a member of) the system of norms a. Rule (i) provides a criterion of membership for the primitive norms of the system by indicating which norms are contained in the first constitution (set C).3 Rule (ii) lays down a criterion for dynamic derivation of norms, that allows us to incorporate new norms into the system and to eliminate norms belonging to the system. It is in virtue of this rule (ii) that legal systems are temporal (i.e., they are relative to a certain

A first constitution according to Kelsen is the one that has not been created by a competent authority, but "by an individual usurper or a kind of assembly" (Kelsen 1945, 115).

An Antinomy in Kelsen’s Legal Theory 41

time) (cf. Bulygin 1982). Rule (iii) states that a! is closed under the notion of logical consequence, which is a general requirement for deductive systems (cf. Tarski 1956, chs. 5 and 12). So rules 1-111 provide a criterion of identification for the norms of the system a

At the same time they define the system a: It is constituted by a certain (finite) set of primitive norms (first constitution in Kelsen’s sense) and all those norms which derive either dynamically (rule ii) or logically (rule iii) from the primitive norms. So every constitution, i.e., every set of norms that contains at least some power-conferring norms can give rise to a system of norms or legal order. The minimal condition that must be met by the primitive norms is that they must exist in the sense of merely formal existence (sense D), i.e., they must be formulated. But they need not be accepted or efficacious (though this, of course, is not- excluded), nor need they be binding. Only if we are interested in a legal order which is actually in use, shall we require that the primitive norms should have factual existence (sense A).

This shows that the question of whether the constitution is a member of the system simply does not arise: It makes no sense to raise this question because the system is defined in terms of a given constitution. We need not go beyond the constitution, for the chain of dynamic derivation begins with it: It is by definition the first member of this chain. Hence the problem of membership and of identity of a legal system can be solved without any recourse to Kelsen’s basic norm.

6. The Role of Normative Validity in Kelsen’s Theory

I turn now to the problem of normative validity or binding force. It has already been observed by von Wright (1963, 196) that the validity of a norm in its descriptive sense of membership is not relative to the validity of another norm, but is relative to the existence of another norm. The situation is different with normative validity. Kelsen says rightly that the reason for the validity of a norm can only be the validity of the norm from which it derives its validity (cf. Kelsen 1960, 196). This implies that a norm p is valid if p has been created by a competent authority, say x . That x is competent means that there is a norm q which confers competence or law-making power on x (cf. Kelsen 1960, 197). A competence norm prescribes an obligation to obey the norms issued by the competent (delegated) a ~ t h o r i t y . ~ So q prescribes the .obligation to obey p (which is issued by x ) . Of course, the mere fact that q commands to obey p does not make p valid (binding, justified); p will be valid only if q is valid. Therefore q must be valid.

Now if the validity of a norm is relative to the validity of another norm,

Alf Ross (1958) and Comides (1974) share Kelsen’s conception of competence norms as indirectly formulated commands or obligation norms. For a criticism of this conception, see Hart 1961,27-33; the nature of competence norms is‘discussed in Bulygin 1988.

42 Eugenio Bulygin

then the chain of validity must be infinite, unless we assume the existence of a norm which is valid in itself, i.e., whose validity is not relative to the validity of another norm, but absolute. This role cannot be played by the constitution, for, whereas it does not make sense to ask whether a (first) constitution belongs to a legal system, the question whether a given constitution is binding or justified is perfectly meaningful. Plainly, no norm can be binding by definition. This is why Kelsen's reply to the question concerning validity of the first constitution is that it is valid in virtue of the basic norm.

The validity of this first constitution is the last presupposition, the final postulate, upon which the validity of all the norms of our legal order depends. It is postulated that one ought to behave as the individual, or the individuals, who laid down the first constitution have ordained. That the first constitution is a binding legal norm is presupposed, and the formulation of the presupposition is the basic norm of this legal order. (Kelsen 1945, 115)

So the basic norm is the ultimate reason of validity of all other norms; it fulfills this function by conferring competence on the author of the first constitution.

The whole function of this basic norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act. (Kelsen 1945, 116)

Kelsen seems to believe that the mere fact that the basic norm confers law- creating powers on the first legislator and so establishes an obligation to obey his norms is sufficient to make these norms valid (binding). This conclusion would be correct only if the basic norm itself were valid, for as I have already emphasized a valid norm can only derive its validity from another valid norm.

Now, the validity of the basic norm must be absolute and not relative to another norm. But Kelsen does not accept the possibility of absolutely valid norms; in order to be absolutely valid a norm should be self-evident, but this would imply the idea of a practical reason, which is rejected by Kelsen. He is very emphatic that there are no self-evident norms (Kelsen 1960, 198).

So the basic norm is not a self-evident norm, nor does it justify any legal order (cf. Kelsen 1960, 223-26), for it is merely presupposed to be valid, but is not really binding.

The basic norm is not created in a legal procedure by a law-creating organ. It is not - as a positive legal norm is - valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act. (Kelsen 1945, 116)

But if the basic norm is not a valid norm it follows that the first constitution is not a valid norm and none of the norms that can be traced back to the first constitution are valid.

It is because the basic norm is a mere hypothesis of legal science, that its

An Antinomy in Kelsen's Legal Theory 43

acceptance does not commit jurists to a certain moral or political position, for it is compatible with any ideology. Kelsen is very emphatic about this point and he stresses that his basic norm has nothing to do with natural law: It validates any legal system whatever its contents (Kelsen 1960, 223-26).

But then one cannot speak seriously about the justifiability or obligatoriness of legal systems. A jurist that asserts the validity of a norm does not say that it is justified and so should be obeyed. What he says according to Kelsen is that if the basic norm is accepted, then it is obligatory to do what the norm in question prescribes, without asserting categorically that the basic norm is valid or binding.

It is not surprising that this solution P la Vaihinger did not seem satisfactory to most jurists. In fact, the theory of the basic norm (thesis IV) was always strongly resisted by legal philosophers. Even its author recognized towards the end of his life the fictitious character of his basic norm, though he did not draw the conclusion that is unavoidable: The concept of validity as a binding force should play no rcile at all in the Pure Theory, once it is stripped of its purely rhetorical Kantianism.

7. Concluding Remarks

The normative validity of legal norms cannot be based on mere hypothesis and still less on fiction. This is why those philosophers of law who take seriously the idea of validity as a binding force cannot feel satisfied with Kelsen's basic norm and must resort to more powerful substitutes. Nino, for instance, maintains that the validity of legal norms is based on absolute and objectively valid moral judgments. But this way out is closed to Kelsen due to his conception of a positivis- tic theory of law. He cannot accept that there are objectively valid moral principles or true norms because norms lack truth values (thesis VI). This entails that there is no objectively privileged set of norms. In order to give preference to a certain set an act of will is needed, i.e., we must take a political decision. But Kelsen is anxious not to trespass the limits of knowledge, so political decisions lie outside the scope of a positivistic theory of law. Hence his efforts to make compatible the idea of validity as a binding force with his positivistic conception of legal science by means of the doctrine of the basic norm. As we have seen these efforts resulted in a failure, a fact that was acknowledged by Kelsen himself. Therefore in order to make consistent the Pure Theory of Law it is necessary to reject one of the two incompatible ideas. Either we want to preserve the idea of normative validity (but then the basic norm must be substituted by true principles or norms, which implies the rejection of positivism and the acceptance of some sort of natural law),' or

Contrary to Nino (1980a, 37-43), both Kelsen and Ross maintain that legal positivism is incom- patible with the acceptance of true moral or legal principles. Cf. Kelsen's theses VI and VII and Ross' definition of what he calls the "kernel of legal positivism": "First, the thesis that the belief in natural law is erroneous. No such law exists, all law is positive law. This, obviously is a thesis belonging to the field of general moral philosophy (ethics). It denies that ethical (moral, legal) principles or judgments are the expression of truths, something to be discovered and established objectively by some process of cognition" (Ross 1961, 50).

44 Eugenio Bulygin

else we choose to be consequent positivists, but then we must reject the idea of validity as a binding force. Only by choosing the second way can we preserve a strict dichotomy between knowledge of law, description of law and legal science on the one hand, and evaluation of law, creation of legal norms and legal policies on the other. In Kelsen’s positivistic perspective legal science can establish which norms belong to a given legal order, but cannot prescribe the obligation to obey these norms, that is, it cannot assert their validity without trespassing the limits imposed by the positivistic ideal of a value-free legal science.

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