HANS KELSEN (1881-1973)
Lecture – Part I Notes
Like other legal positivists, Hans Kelsen attempts to “describe” the law separate and distinct from
morality or ideology.
WHAT MAKES KELSEN A LEGAL POSITIVIST?
1.
Kelsen’s theory is free from ideological issues, and no value judgments are made
concerning the “legal system per se.”
2.
Historical, sociological and moral issues are beyond the scope of Kelsen’s pure theory of
law.
As such, Kelsen’s “Pure Theory” attempts to examine and define what law “is” outside the purview
of these normative areas.
“The pure theory of law is a theory of positive law. As a theory it is exclusively
concerned with the accurate definition of its subject matter. It endeavors to answer the
question, “what is the law?” but not the question, “what ought it to be” It is a science and not
a politics of law.” (Wayne Morrison, pg. 324) “Jurisprudence: From the Greeks to postmodernism.”
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Is Kelsen a cold hearted scientist bent on developing a positive system per se devoid of humanism,
attempting to strip away all that is social and moral about society? Interestingly, Kelsen addressed
this question, and said no. His “model” building, according to the man himself is designed to
highlight a species of human acts, namely valid norms affecting human behavior.
“to understand law in its pure structure we must strip law of its expressive dressing; law is a
simple structure of coercion, a hierarchically organized system of (non-moral) norms laying
out the conditions by which agents of the state are entitled (authorized) to enforce sanction.”
(Morrison, pg. 3251).
THE GERMAN EXPERIENCE – RADBRUCH
During the early 1930’s, the German jurist Radbruch, prior to his transformation to later day natural
law sentiments, seemed unable to strip away the trapping of historical determinism within the
context of legal validity. Put simply, Radbruch encouraged the legal validity of the German Reich
based not on a criterion of validity per se, but upon the notion of the historical destiny of the Third
Reich. History, according to Radbruch, assigned to the Third Reich the right to claim that laws
issued by the Reichstag are also right.
So for Radbruch, at least at this juncture in history,
legal validity or laws properly so called were also moral laws.
Kelsen, however, sought to sever the connection between historical determinism and the law.
Kelsen believed that laws are made by men rather than discovered by man. By discovered we
mean that man mysteriously has unearthed the historical blessing or determinism that makes law
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right. Most importantly, according to Kelsen, it is not a necessary condition that when man makes
law, that law is also right or just. To this extent, you see how Kelsen is concerned with man’s
ability to be subsumed by historical and political tides, and how he now asserts a detached
positivism to delink prior links between justice and law, right and power, validity and law per se. It
is at this juncture that the genesis of his “pure theory” begins to emerge. Kelsen asks the question,
“what is the subject matter of jurisprudence? Law is a human creation, yet Kelsen is asking it
participants to accept the law without further acknowledgment of either its genesis or normative
foundations.
KELSEN’S PURE THEORY
Kelsen’s theory seeks to isolate that which makes law valid without reference to morality. It is this
detachment that puts Kelsen into the legal positivist school.
For example, Kelsen sets up his theory by first making a fundamental distinction between the
“prescriptive” and “descriptive” aspects of positive law. Unlike Benthan and Austin who sought to
describe how a legal system works, Kelsen digs deeper into this theory seeking out a “prescriptive”
dimension. By prescription, law should prescribe when certain conditions are met, that officials
behave in a certain way.
KELSEN’S HIERARCHY OF LEGAL NORMS
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Legal norms for Kelsen provide the structure for legal validity. Today’s laws must have been
preceded by prior norms whose validity was based on still further historical norms.
Does this legal fiction provide any utility to the study of law in the real world.? Have we witnessed
any political cataclysm through revolution that adopted a Kelsenian theory of law to justify new
laws as having legal validity? Indeed, many examples abound.
Consider the American Revolution.
Within Kelsen’s prescriptive element emerges his role for sanctions. Kelsen’s role for sanction
pivots upon the motivational aspect of his prescription. Simply stated, sanctions enforce the
prescriptive goal to affect behavior.
Efficacy: Efficacy for Kelsen relates to the degree to which people actually comply with the law.
If people do not attach credence to the law or avoid compliance, then the law cannot acquire the
requisite validity to be called law.
Ask yourself, what determines legal validity in a command theory? What determines legal validity
in Kelsen’s theory? See a difference? The difference emerges in a two step test of validity in
Kelsen’s theory; namely, validity is not only created from above through prescriptions of what
behavior ought to be, but whether that behavior is accepted by the public. When legal norms are
accepted officials and down the line by citizens, we can stated that such norms have achieved the
efficacy and hence, the validity. When validity is established, you must also be aware that the
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Grundnorm of legal system is assumed, otherwise, the chain of title of legal norm to the
Grundnorm would be broken. (See Hart’s criticism of this requirements later on in the lecture).
Note that Kelsen is not concerned with the morality of a legal norm, but whether it exists, and
whether is prescriptive nature produces both the efficacy and validity of legal norms
Kelsen is also similar to Fuller. Recall Fuller’s Inner Morality of Law and how it was based on the
procedure aspects of law making? If you observe Kelsen’s pure theory, he too is concerned with
how the law is made in order to lend support to his theory of efficacy and validity. In this sense,
while both Fuller and Kelsen come from different schools of thought, you can also spot some
similarity in their procedural approach to establish the validity of law. In the former, validity is
derived from procedures, which ensure the inner morality of law. In the latter, you can see how
Kelsen uses procedure to highlight the process leading to legal norms that are both efficacious and
valid. Kelsen’s theory attempts to explain validity without any reference to morality or moral
content in laws.
NORMS AS A SCHEME FOR INTERPRETATION
Kelsen goes to great lengths to attach two roles to norms. Firstly, norms are used by subjects to
adjust their behavior. Second, norms are used as evaluative or interpretative tools to measure legal
validity by judges and officials.
HART’S CRITICISM OF KELSEN
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Hart draws a basic distinction between supposition and fact. Kelsen presupposes a legal norm or
his “Grundnorm” must be presupposed prior to establishing whether a given law is valid or not.
For Hart this issue boils down to whether officials interpret primary laws factually by the creation
of “secondary rules of recognition.” Rules of recognition are not presupposed, but in fact validated
by their existence per se.
Secondly, unlike Kelsen’s Grundnorm, which prescribe the ultimate test of legal validity, Hart’s
rule of recognition can be applied to all system anywhere. Kelsen’s hierarchy of norms, is
therefore more of a supposition that a theory for legal validity.
Joseph Raz and Hans Kelsen – An important critique for purposes of the University of
London exam (Read Freeman, “The Purity of the Pure Theory (1981)” pg. 327 (6th Edition)
1. Joseph Raz puts Kelsen squarely within the legal positivist school. Namely, Kelsen’s theory is
free of moral elements, or so it seems. Raz postulates that traditional legal positivism
incorporates three key elements:
(i)
The positivist use a reductive method to describe the law in non-normative ways.
(ii)
The thesis that law and morality are not necessarily connected (Contingent Connection)
(iii)
The existence of content of law in not connected to any moral argument. (Source
Thesis).
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With Kelsen, however, when he says a “norm is valid” he means that it is “binding” – hence the
individual ought to behave in a manner determined by the norm (Raz). While Raz may view this
Kelsenian distinction as critical for distinguishing him from traditional positivists, it also begs the
question of what happens when the legal statement is not clear enough to apply the binding effect
upon judges and citizens
Further criticisms of Kelsen by Raz
Raz attempts to show why Kelsen’s attempt to allege that law and morality cannot be necessarily
connected is not the right question. Raz exposes some serious question about Kelsen in that in
order for laws to be efficacious in some way, people must be able to believe that obedience of laws
is morally required regardless of the content of law, and hence a connection between morality and
law does exist without any specific reference to the content of laws per se.
Meaning of Normative Statement for Kelsen
Raz shows us that Kelsen sees normative statements purely in relation to a valid norm, and
ultimately to the Grundnorm. Contrasted with Hart who see normative statements are influenced by
social and political consideration, Kelsen attempts to use normative statements only as they relate
to the validity of a legal norm.
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Moral Relativity
“positivism does not assert that there are no values, or that there is no moral order, but only that the
values in which men actually believe are not absolute but relative values.” Raz @ WJ 1790.
Kelsen does not explain his position well in this regard; however, according Raz, Kelsen at least
makes point that value judgments by participants, that is, judges and citizens do take into account
not only their own value judgments, but Kelsen believes they all incorporate beliefs that normative
statements per se state the existence of duties, rights, powers or permissions, and that such
statements “do not merely express the speaker’s attitude.” To this extent, normative statements are
not speaker derived or based, but neutralized into some place of moral neutral linguistics that
permit such statements to narrowly express requirements that bind people. That’s quite a reach, but
regardless of my point of view, you need to be able to interpret this view as Kelsen sees before you
lend a critical statement whether by Raz or others, to bring it down.
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