The Critical Legal Science

Cardiff University

The Critical Legal Science of Hans KelsenAuthor(s): Iain StewartSource: Journal of Law and Society, Vol. 17, No. 3 (Autumn, 1990), pp. 273-308Published by: Wiley on behalf of Cardiff UniversityStable URL: http://www.jstor.org/stable/1410155 .Accessed: 02/11/2014 09:54

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JOURNAL OF LAW AND SOCIETY VOLUME 17, NUMBER 3, AUTUMN 1990 0263-323X $3.00

The Critical Legal Science of Hans Kelsen

IAIN STEWART*

Fearing the outcome if the secret police found it in his house, the sacked law professor wrapped his old service revolver in a banana skin and plopped it into the Rhine. He escaped with his family to Prague, where, at his first lecture, fascists packed the hall and shouted: 'Everybody except Jews and com- munists, out!' Those students who remained were beaten up. He continued to teach, under police protection. Plans of a plot to assassinate him were discovered by a university cleaner. He brought his family out, to the United States of America, where he was allowed a chair of political science but not of law.1

Hans Kelsen, advisor to the Austro-Hungarian Emperor, author of the Austrian Constitution, and having experienced many kinds of academic and political victimization - of all major legal theorists the most bitterly acquainted with political realities - is an implausible perpetrator of 'formalism'.2 Yet his main creation, the 'pure theory of law', is both recognized world-wide as a major theory of law3 and placed in the 'born so beautiful' basket as the paradigm case of formalistic irrelevance.4 As Gurvitch formulates the charge:

According to this doctrine, law, being nothing but a pure norm, admits only a normative and formalistic method of study, every other method being destructive of the very object of research. That is why sociology cannot study law and the 'science of law' cannot take account of social reality.5

Even for so analytical a mind as Hart, the pure theory pays far too little attention to the circumstances under which laws are created and 'whether they are recognised as authoritative and by whom'.6

Yet, to Kelsen, of all charges levelled against the pure theory, that of formalism was the 'stupidest'.7 I will argue that, when Kelsen's philosophical standpoint is understood, the question of formalism emerges on several levels. First, in relation to its subject matter the theory is intended to be anti-

*Senior Lecturer and Head, School of Law, Macquarie University, Sydney 2109, Australia

This paper is the fourth in a series dealing with the work of theorists who have substantially influenced contemporary understanding of law and society. The series will be of interest to both students and specialists.

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formalistic. Second, within the chosen kind of philosophical framework a general theory is necessarily formalistic. Third, arguably the philosophical framework itself is formalistic and communicates this formalism to the theory.

While recent interest in the pure theory is found mainly among analytical philosophers," as an attempt to bring the study of law to the level of a critical legal science - a project, moreover, that fell apart in Kelsen's own hands - the pure theory's aims and fate are very relevant to attempts to construct a critical legal science today.

Yet there is no survey of Kelsen's work as a whole, in any language.9 The task of survey is daunting. Kelsen wrote over 300 books and articles, in three languages.'0 Most that are not in English have not been translated and the existing translations vary in reliability (although their formulaic style is not due to the translators)."I Writings about Kelsen's work form an equally long list and are in several languages.'2 Attention here will focus on Kelsen's writings on legal theory, leaving aside his many works on justice, public international law,'3 or Austrian law. Nor will the work of other members of the 'Vienna School' be considered on its own account.'4

No single work of Kelsen's contains a final overall statement of the pure theory. The last overall statement is the second edition, published in 1960, of Reine Rechtslehre, translated as Pure Theory of Law. By 1962, however, the theory's keystone, the concept of a 'basic norm', had fallen apart in Kelsen's hands. Rather than restate the theory accordingly, he tried to save the concept in weakened form. Then he moved up a level, to general theory of norms. He died in Berkeley, California, on 19 April 1973, leaving a rambling text published posthumously as Allgemeine Theorie der Normen (General Theory of Norms). Although this book reformulates many of the arguments of Reine Rechtslehre, embracing the new version of the 'basic norm' concept, it neither offers a completed general theory of norms nor locates the pure theory of law within such a theory. Nevertheless, it comes close enough to doing these things for an article such as this to outline Kelsen's theoretical work according to such a pattern. In doing so, I will avoid questions of the development of the pure theory except so far as they impinge on understanding its final form.

KELSEN'S BACKGROUND

Hans Kelsen was born in Prague on 11 October 1881 and was raised in Vienna. His parents were Jews of the German-speaking working class. The boy dreamed of taking a degree in philosophy, mathematics, and physics. The combination of his social background with such a degree, however, pointed to a career in schoolteaching and, without enthusiasm, he enrolled at the University of Vienna in law. That he could not become a philosopher, he regretted for the rest of his life. After obtaining his doctorate, Kelsen became interested in the nature of legal norms and wrote a higher doctorate on this and other major issues in legal theory,' 5 then began to teach at the university.

Cosmopolitan, bureaucratic and rich as its cream cakes, dual-imperial 274


Vienna bestrode central Europe with a web of laws that a medley of class and ethnic conflicts within and the Great War without would shred. Political thought rang the changes from feudalism through constitutional monarchy and liberalism to socialism; fascism would follow. In religion, catholicism dominated protestantism and judaism. This unstable social variety pressured liberal high culture toward relativism: into neo-Kantianism, logical positivism, empiriocriticism, physical relativity theory, psychoanalysis, tonal music, and satire.

Relativism encouraged abstraction: to cope with the variety, theory needed to rise beyond it. At the same time, the relativity was far from static: the deep historical consciousness that through the nineteenth century had expressed German plans for unity bled over into disintegrating Austria-Hungary. Having found Hegel both too feudal and too vulnerable to Marx's inversion, German-speaking liberals went back to Kant. Yet the return could not be simple. Kant's sense of historicity, as Hegel had pointed out, was too weak for an age needing to understand deep transformations of social structures. A first problem, then, was the relation between historicity and 'science' (Wissenschaft - the German word refers to any kind of systematic enquiry).

Linked with this was a further problem, concerning 'is' and 'ought'. Kant maintained the distinction between theoretical reason, which states what is, and practical reason, which states what ought to be. Feudal and especially catholic idealism had preached their unity, so that whatever exists is presumably good. A key principle of the Enlightenment, from Hume's Scotland into the German-speaking lands, was to divide them, so that statements of what is and of what ought to be are different kinds of statement, and accordingly neither can follow from the other. A strong sense of historicity, on the other hand, includes a stress on practice, hence on the co- existence of fact and value, fact and meaning - which is next to reasserting their unity.

The problem of reconciling historicism with the is/ought dichotomy produced a powerful debate on the identities of the sciences. The neo- Kantians, as they came to be called, distinguished between two kinds of science: the natural sciences (Naturwissenschaften) and the sciences of mind (Geisteswissenschaften) or culture (Kulturwissenschaften). In terms of the relation between reason and history, the former were to be concerned with material facts, the latter with meanings; or the former with regularities, the latter with individual events. In terms of separating 'is' and 'ought', the former were to be concerned with material facts, the latter with values.

Each way of making the distinction also had two versions: whether the difference lay in the perspectives through which the sciences approached their subject matter or in the subject matter itself. Kelsen took the latter view, holding that law is evidently one of the 'social orders' - that is, systems of 'oughts' - and that therefore its study cannot be a natural science.16 It might then be a science of mind or culture. But, in that case, if the aim is to describe the 'oughts' of law, can there be such an 'is' of'oughts' without infringing the rule against mixing 'is' statements and 'ought' statements?

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This problem was either abolished or made worse by logical positivism, which denied the very existence of practical reason. It held that only factual statements could be rational; value statements were merely emotive. This left no room for a science of'oughts', hence apparently for a science of law. Or, if a science of law was possible in these terms, could it be fully compatible with the other sciences within the logical-positivist doctrine of 'unified science'?

Such debates challenged the discipline of law to reforge its identity as a science. Kelsen was outstanding among those who took on the challenge.

KANT AND THE PURITY OF 'IS' FROM 'OUGHT'

In constructing his legal theory and even when attempting a general theory of norms, Kelsen is concerned less to philosophize than to clothe his theory in elements of philosophy bought off the peg. Such an attitude is neither wrong nor even inferior; enquiry has to stop somewhere in the refinement of premisses as well as in the search for evidence, if it is to bring the two into relation.17 All the same, the cryptic nature of many of Kelsen's indications of his philosophical debts makes it hard to ascertain whether the clothes he bought fit well or even match.

A starting point is that Kelsen many times classifies himself as an heir of Kant. The first edition, published in 1934, of Reine Rechtslehre begins:

It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine science, a science of mind [Geistes- Wissenschaft].'8

In the passage out of 'naive, prescientific thinking',19 Kelsen finds Kant only half-heartedly critical20 and tests the capacity of a range of neo-Kantian and related philosophical tendencies - principally the ideas of Rickert, Hermann Cohen, and Husserl.21 Yet he declines to get closely involved in these debates, preferring to count it undeniable that the reality of law is not simply natural but also involves meanings, all or most of which are oughts, and then to go his own way.22 The area in which he draws the border is indicated by his view that the idea of legal science as a science of mind does not suppose complete free will, since the idea of responsibility presupposes causal constraint.23

Nonetheless, Kelsen appears to adopt two key Kantian conceptions: 'critique' and 'purity'.

Kant's main books offer 'critiques', as he terms them, of modes of thought. He understands 'critique' not as a merely negative exercise but as a process in which a mode of thought is to be made as coherent as possible. The focus is on the mode of thought as such. There is no appeal below thought to experience, nor above thought to religion. Critique is reflection on the very forms of a mode of thought, with the aim of maximizing the mode's capacities. Kelsen

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embarks on a critique, in this sense, of existing legal theory, later of existing general theory of norms.

Kant's idea of purity follows from his firm adherence to the logical law of identity, that each thing is what it is and not something else. Any statement of something, therefore, must state it as what it is and without admixture. Such a statement will be 'pure'. Kelsen is concerned with such purity in two major directions: the first is purity of description (the realm of 'is') from prescription (the realm of 'ought').

Following Hume,24 then Kant, but with still greater emphasis, Kelsen insists that statements of what is and of what ought to be must not be mixed.25 For Kelsen, the difference between 'is' and 'ought' is simply obvious and cannot be explained. One and the same entity may be considered now in terms of'is', that it exists or does not exist, and now in terms of 'ought', that it ought or ought not to be; but the two 'modes' must not be mixed together. The entity that may be considered in terms of either mode is a 'modally indifferent substratum' underlying the two modes. To say that an 'is' corresponds to an 'ought' - for example, that a person's behaviour conforms to a norm - is to state a correspondence not between the behaviour and the 'ought' form but between the behaviour as content of an 'is' and as content of an 'ought'. Neither mode, however, has any necessary content: for example, a legal 'ought' does not necessarily contain any moral 'ought'.26

One of the grounds on which Kelsen takes this strong view is that he makes a major departure from Kant, in the direction of logical positivism. Kant gives reason two roles: theoretical reason concerns description ('is') and is a function of thought, while practical reason concerns prescription ('ought') and is a function of will. Kelsen, however, denies the existence of practical reason.27 Thought and will are 'two quite different mental functions'. There are 'acts of thought', whose meaning is a descriptive statement, and 'acts of will', whose meaning is an ought. Although the two kinds of meaning are bound up with each other, in that a statement is usually made with a purpose and an ought contains a conceptualization of the behaviour to which it may apply.28

The meanings may be expressed in various ways - as written or spoken words, or as a gesture (for example, hands raised in voting, a police officer directing traffic) or other non-verbal kind of symbol (for example, a traffic light); or even as being 'tacitly presupposed', such as the norm of derogation that a later norm derogates from an earlier.29 Kelsen's meaning of 'ought' is broad: he specifies that it shall include not only commands or orders, but also authorization, permission, and derogation.30 Considered grammatically, words expressing an ought will often be in the imperative mood. But no particular verbal formula is necessary and sometimes the verbal form can mislead: especially, an ought may be expressed in the indicative mood - for example, 'Theft will be punished with imprisonment.'31 Yet the fact that is the act of thought or will is not the same as the fact that is the mode of expression: for example, an act of will, whose meaning is an ought, is not the same as a speech act expressing that meaning.32

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All the same, the difference between 'is' and 'ought' is not between two modes of reason but between reason itself (corresponding to Kant's theoretical reason, or theoretical aspect of reason) and emotion. This strong version of the 'is/ought' division particularly affects what is admissible as 'science (Wissenschaft)'. If science is already defined as a rational enterprise, questions of what is, being rational, can be discussed in science while questions of what ought to be, since they are irrational, cannot. Indeed, to allow discussion of 'ought' to affect discussion of 'is' would be not science but 'ideology'. Science must be kept pure of ideology.33

A first task is to fence legal science against other sciences dealing with connected subject matters - psychology, sociology, ethics, and political theory. The pure theory of law

undertakes to delimit the cognition of law against these disciplines, not because it ignores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines (methodological syncretism) which obscures the essence of the science of law and obliterates the limits imposed upon it by the nature of its subject matter.34

SCIENCE OF OUGHT

At this point it will be helpful to make explicit a concept that in Kelsen is only implicit: the concept of a science of ought. This makes it possible to identify in Kelsen's perspective the following hierarchy of sciences. First, science in general divides into sciences of nature and sciences of mind. Second, sciences of mind - the neo-Kantian concept being modified to accommodate the logical-positivist denial that the practical can be rational - divide into sciences of is and sciences of ought. Third, since only some oughts are valid (see below), hence are norms, sciences of ought divide into sciences of norms, which Kelsen calls 'normative sciences', and sciences of other kinds of ought. The normative sciences are 'pure' in the sense that they describe oughts without subscribing to or evaluating them. Fourth, normative sciences divide into legal science, the study of legal norms, and ethics, the study of moral norms. Thus the pure theory of law is normative science of law.35

Kelsen's greatest difficulty is: how, in these terms, can there be a science (a rational description) of 'oughts'? A strong version of the is/ought division implies that there cannot: that either (as Stammler had concluded) science of ought must be confined to practical reason, as systematic evaluation of oughts,36 or (as in logical positivism), if reason is only cognitive, any science of mind that can describe acts of will but not their meanings, can only be psychology.37 Yet Kelsen is unwilling to go all the way with logical positivism and reduce ought to is.38 For him, oughts may be irrational but they are not illusory. In neo-Kantianism he found another resource.

In Kant's view, we know things not as they may be 'in themselves', independently of knowledge, but only as they appear to us. (The question of how we can then be sure there is any reality at all 'out there', independently of

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our knowledge, plagued the neo-Kantians.) The appearance of things to us is as material provided by the senses that is moulded under forms of thought: material as so moulded is a 'concept'. Most of the forms (moulds) are constructed by us. But the most universal forms, which Kant calls 'categories', are innate.

One of Kant's 'categories' is that of'is (Sein)', under which descriptions are constructed. How is it possible to state the is of an ought? Now, Kant had declared that his list of 'categories' was not closed. Very well, said the neo- Kantian sociologist Simmel, in working out how there could be description of social values: let us add a new category, 'ought (Sollen)', under which it will be possible to describe oughts.39 Kelsen adopts Simmel's new category.40

Since, in Kant, the operation of a category is mediated through a 'schema (Schema)', Kelsen has the category of ought operate partly through the 'schema' of 'norm'.41 The new category and schema permit a kind of science in which norms may be described without any admixture of evaluation. Kelsen calls this 'normative science'.42 Sociology, as well as psychology, ethnology,43 and history, are to concern themselves with understanding behaviour in terms of causality, including motivation. Where behaviour is related to meanings that are norms, those meanings are to be understood by the normative sciences of law and ethics.44

The word 'norm' (from Latin, norma) often means descriptive regularity, as when one says that a type of behaviour 'is the norm' (compare 'is normal'). Kelsen does not use this sense. A second sense is prescriptive: when one speaks of 'social norms', one means by a 'norm' any kind of prescription. For this concept, Kelsen prefers to speak of an 'ought'.

Kelsen then speaks of both 'ought' and 'norm' in two senses: as subject matter of science and as descriptive construct in science. In the first sense, he refers simply to an ought or a norm. In the second sense, he speaks of a 'proposition (Satz)'. Thus an 'ought (Sollen)' is described in an 'ought proposition (Sollsatz)', a 'legal norm (Rechtsnorm)' in a 'legal proposition (Rechtssatz)' and a 'moral norm (Moralnorm)' in an 'ethical proposition (Satz der Ethik)'.45 This is Kelsen's formal terminology, but, since in Kantian terms a subject matter is known only as it appears, he usually speaks of an 'ought' or a 'norm' when he means the ought or norm as it appears in a proposition. This double usage is confusing, but Kelsen defends it as a widely established practice: 'logic (Logik)', for example, is both the operation of a kind of norm and the study of their operation46 (compare, in English, 'law').

With the word 'normative', however, Kelsen is more selective. While its usual meaning is prescriptive, corresponding to his sense of 'norm' as subject matter, he uses it in a sense corresponding to his sense of 'norm' as description. Normative science, under the category of ought, constructs norms in the second sense as descriptions of norms in the first sense.47

Next, Kelsen stresses that, since natural science describes facts while normative science describes norms, the two forms of science must operate according to different principles. Natural science operates according to the principle of causality. By analogy, Kelsen maintains, normative science can

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operate according to a principle of 'imputation (Zurechnung)'. A cause is conditionally related to an effect as its consequence - if A (cause) is, then B (effect) will be; B is caused by A. Thus: if (A) a brick hits Jane's head, then (B) Jane will be injured. Likewise, a delict48 can be conditionally related to a sanction as its consequence - if A (delict) is, then B (sanction) ought to be; B is 'imputed' to A. Thus: if (A) John threw the brick, then (B) John ought to be imprisoned. To speak of 'imputation' here is similar to speaking of responsibility - here, that John is responsible for the damage to Jane.49

The legal scientist makes the imputation, just as the natural scientist understands a physical connection as causal. Imputation means 'every connection of a human behaviour with the condition under which it is commanded or prohibited in a norm'.50 In the case of morality, however, imputation is a two-stage affair: while a legal norm is attached directly to a negative, coercive sanction (such as imprisonment), a moral norm is attached directly to a positive, noncoercive sanction (such as the expression of approval) and indirectly to the negative form of that sanction (such as the expression of disapproval); imputation, concerning a moral norm, has to reach to the negative form.

Pursuing the analogy, Kelsen holds that, as in natural science causal relations may be stated in a 'law of nature (Naturgesetz)', so in normative science relations of imputation may be stated in a 'law of law (Rechtsgesetz)' or 'law of morality (Moralgesetz)'; the legal or moral form, like the natural, being formulated probabilistically.5' However, the analogy is only partial: while the law of nature refers to unending chains of causation, the law of law or of morality refers to isolated relations.52 The law of law or of morality is the form taken by the legal or moral proposition.53

The distinction between causal sciences, grounded in the principle of causality, and normative sciences, grounded in the principle of imputation, cuts across the other distinctions between sciences. Accordingly, Kelsen can divide the social sciences into causal social sciences, such as sociology, and the normative social sciences, such as legal science and ethics.54 In relation to law, if social sciences follow the principle of causality alone, they will fail to take account of norms; if they also follow the principle of imputation, they will to that extent be legal science or ethics.55

Other norms and their study belong to logic and technology (Technik). Since 'ought' is not a relation, a norm is not a relation between a means and an end. A relation between a means and an end is causal. An act of will, which is a psychological fact, may be a means, but the meaning of that act, which is an 'ought' or norm, cannot be a means or an end. The question 'What ought I to do?' belongs to legal science or ethics; the question 'What must I do, to realize a particular end?' belongs to technology.56

Now, it is far from clear in what sense the 'proposition' is descriptive. For, in addition to saying that the difference between norm and proposition is that the latter describes the former, Kelsen gives as examples the difference 'between a law published in the official legal gazette and a scientific commentary on that law' or 'between the Criminal Code and a textbook on criminal law'.57 The

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examples state a difference without really defining it. Kelsen also says that the description might be called 'interpretation', but maintains that this 'non- authentic', merely descriptive interpretation by the legal scientist is quite different in principle from the legal organ's 'authentic', law-creating interpretation.58 If the proposition is formulated as a 'law', then:

It is the task of the science of law to represent the law of a community, that is, the material produced by the legal authority in the law-making procedure, in the form of statements to the effect that 'if such and such conditions are fulfilled, then such and such a sanction shall follow'.59

The spirit appears to be that legal science, constructing legal propositions not legal norms, 'has to know the law - as it were from the outside - and to describe it'.60 Legal science 'endeavours to comprehend its object "legally", namely from the standpoint of the law'- that is, as a legal norm or as content of a legal norm.61

'Imputation' is equally ambiguous. Up to the 1930s, Kelsen understands it as a category in the Kantian sense, on analogy with Kant's category of causality. Under Kantian categories, reality is constructed: the categories are not generalizations from experience. In Hume, however, causality is a generalization from experience. And Kelsen moves toward a Humean understanding of causality, at the same time as denying that knowledge of oughts is experiential: the analogue loses its parent.62

It appears that, in Kelsen's conception of science, more than one idea of description is involved. At least three ideas of description were available to him: they may be distinguished, if rather metaphorically, as 'refractive', 'reflective', and 'interpretive'. In objective-idealist philosophy, such as Christianity, it is believed that the basis of reality is ideal forms existing prior to knowledge. The particular entities in the world are only refractions of the ideal forms - for example, a particular man exists only as a refraction of the ideal man. To describe a particular entity is to reproduce the refraction, as, for example, a biblical scholar may refract a meaning in the Bible. The method is exegesis. In materialist philosophy, the basis of reality is physical things. To describe them is to have a reflection of them in the mind. The method is observation. In both refractive and reflective description, the construction of reality is supposedly determined by the form of the original.

One can observe both inanimate and animate objects, such as human beings in their behaviour. But a science of mind is not concerned solely with behaviour, understood causally. The neo-Kantian sociology of Max Weber, for example, insists that one must first observe the behaviour and then understand it according to the meanings that the actors attach to it, which Weber terms the 'subjective meaning' of the behaviour - distinct from the 'objective' meaning constructed in science.63 The method is interpretive understanding. This differs from exegesis in that, although in both cases the subject matter is meanings, in interpretive understanding the actor's frame of reference need not be adopted by the observer, who may reconstruct the actor's meanings in any of a theoretically infinite number of alternative frames.

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Now, if the difference between norm and proposition is only that the norm is created by legal authority while the proposition is not, the proposition reproducing the norm will remain within the legal authority's frame of reference; the description will be refractive. If, however, the difference between norm and law (law of law or of morality) involves reconstruction of the norm in another frame of reference, the description will be interpretive. Yet we shall see in a while that Kelsen's way of combining the two modes of description is curious.64

A 'PURE PART' OF LEGAL SCIENCE

The second type of purity with which Kelsen is concerned is purity of the form of knowledge from empirical content.

Since, for Kant, the 'categories' and not any supposedly given 'facts' are the foundations of thought, any mode of enquiry can be systematic - that is, can be a science - only if its systematic character is established in advance of empirical investigation. It is therefore necessary, in beginning to construct a particular science, to establish a set of basic forms that the science will apply. This set Kant calls the 'metaphysical bases' of the science.65 Their formulation, he calls (speaking of natural science) the 'pure part' of the science - 'pure' in the sense that it does not yet have any sensuous admixture, any empirical content. This should be stated separately from the later, 'empirical' part of the science, in which the forms established in the pure part are applied to empirical material so as to compose concepts.66 Thus, the purpose of constructing a pure part of a science, far from being to evade empirical considerations, is precisely to make empirical enquiry possible.67

Kelsen states that the pure theory provides 'the fundamental principles by means of which any legal order can be comprehended'68 and that it is a 'general jurisprudence' furnishing 'the basic conceptions that enable us to master any law' and accordingly serving as 'the theoretical basis for all other branches ofjurisprudence' such as 'dogmatic' (that is, doctrinalist), historical, or comparative jurisprudence,69 and even sociology of law.70 The theory:

has - and by its very nature must have - aformalistic character. This does not mean - as it is sometimes misunderstood - that the Pure Theory of Law considers the contents of the legal norms as irrelevant. It means only that the concepts defined by the theory must hold what is common to all positive legal orders, not what separates them from each other. 'Formalism' can be no objection to a general theory of law.71

Precisely in this indispensable 'formalism', the pure theory states the common features of all species of law without supposing an eternal essence of law, as do theories of natural law.72

The pure theory is therefore 'pure' in two senses. Normative science as such is 'pure' in the first sense, of being free from considerations of evaluation. Each normative science then divides, in Kantian terms, into a 'pure part' and an 'empirical part'. The pure theory of law is offered as the pure part of a normative science of law. It is, Kelsen insists, a pure theory of law, not a theory

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of pure law.73 Causal analysis belongs to the empirical part: it is not to be substitutedfor but added to normative interpretation.74 The causal element in the test of effectiveness (below) is not itself causal analysis but an envisaging of a respect in which causal analysis will be required. The answer to Hart's criticism is that the pure part of the science identifies law and the empirical part can then trace the connections of origin and effect.75

Such is Kelsen's intention. So far as he envisages reflective or interpretive description, the pure part may remain independent of the material to be described. Yet, so far as he retains refractive description, the bases of the science remain within the terms of the subject matter and a division between pure and empirical parts of the science is not feasible.

THE NORM AS 'OBJECTIVE MEANING'

Kelsen's second departure from Weber concerns objectivity of meanings. Kelsen defines an ought as 'the meaning of an act of will'. Presumably, this will be a 'subjective meaning' in Weber's sense. Thus, Kelsen supposes, one might observe that people in a room periodically raise their hands and one could record the statistical regularities of the hand-raising. But one will understand the hand-raising as voting only if one also, through interpretive understanding, examines the meanings that the actors attach to their behaviour. So far, Kelsen is with Weber.76

Weber would then have said that these subjective meanings might include the actors' belief that the meaning is obligatory upon them. Science should record that belief - but in Weber's view science has no business deciding whether that belief is true. Weber firmly declines to suppose 'an objectively "correct" meaning or one which is "true" in some metaphysical sense'." For him, science may be 'objective' through excluding ideology, yet not even science can claim absolute objectivity.

But Kelsen asserts that the voting can be understood as legislation only when the subjective meaning of the hand-raising is also understood as 'its objective meaning, that is, the meaning the act has according to the law'.78 Now, Kelsen might be taking law here as his frame of reference, just as Weber takes the frame of reference of his sociology. But that would be to think within the law, not to think in terms of a legal science. Rather, it seems, Kelsen is supposing within his legal science that legal meanings are 'objective' on their own account. Why should he suppose that?

Two reasons may be found. First, that it seemed obvious. In constructing a general theory of law, Kelsen's principal concern is with the Romanist tradition, in which most western legal systems are found. In that tradition, 'law (German, Recht)' in a general sense is readily characterized as 'objective (objektives Recht)', as distinct from a 'subjective' category (subjektives Recht) corresponding to 'rights'. In English translation, 'law' no longer appears in association with an explicit claim of objectivity and the contrast between objective and subjective is lost.

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Secondly, however, Kelsen offers an argument: the "objective " character of a norm is manifest in the fact that the norm not only binds the addressee even if the addressee does not know or think about it but also continues to exist even after the will whose subjective meaning it is has ceased. What matters is the view of an observer to whom the norm is not addresed, such as a legal scientist. 79 Otherwise, Kelsen argues against Weber, a delict committed when the actor did not know of the legal norm characterizing such behaviour as delictual would fall outside the legal-scientific definition of law.8s Likewise, it seems, Kelsen worries that bindingness would cease as soon as the legislator's mind turned to another topic. But that is a political consideration - unless the legal scientist's concern is with the legislator's view of the consequences of the temporariness of an act of will. Even so, the legal scientist ordinarily will be an addressee of any general legal norm.

It is helpful to see how Kelsen first came to the issue. Historically, he finds, one way to conceive of a norm as objective has been to attribute it to some kind of suprahuman subject as its author. This could be 'God', or personifications of 'Nature', 'Reason' or 'the State'. Most of these are obviously excluded by Kant's ban on transcendence. In his first major work, however, Kelsen still argues that the 'modern state' is 'an entirely extra-individual authority' which 'fulfils its obligating function independently of the will of the individual', so that the positive law of which it is the author is 'objective' in existing 'over and above human beings, independent of the subjective feelings of the individual'. Consequently that law can be represented in legal science only by an objectivistic method that will present it as 'objective' and entirely 'heteronomous'. It cannot be represented accurately by a subjectivistic method, which would make legal norms appear, like moral norms, as 'subjective' and 'autonomous', deriving their bindingness merely from the individual's 'recognition' of them as obligating. Indeed, from a subjectivistic standpoint the apparent objectivity of legal norms appears as nothing but a product of 'projection' or 'objectivation'; that being false, the way law appears from a subjectivistic standpoint is 'fiction'.81

Kelsen was soon unhappy with this: personification of the state still smacked of transcendence. He leapt to a reviewer's mention of the philosophy of Hermann Cohen, where the state appears not as actually personified but as an explicitly fictional personification of the legal order.82 The state would appear, to be precise, as a 'point of imputation'; from the standpoint of normative science, state and law are the same thing.83 The identity of state and law will concern us later. What is important here is that, although the state is reduced to a point of imputation, it remains the author of 'objective' norms. Moreover

-just as when it was suprahuman - as a point of imputation, it does not appear as an actor. Consequently the meanings of its acts of will, which are legal norms, are not available for interpretive understanding. I will return to this.

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THE LEGAL ORDER

1. Orders of Norms

An ought is a 'norm' if it is valid. Norms in this sense may be followed, violated, or applied.84 To speak of validity here is to say that the ought occurs not singly but in some kind of order.8 s Kelsen distinguishes two possible types of order, which he calls 'static' and 'dynamic'.86 In 'static' order, norms are ranked in hierarchy in a relation of general to particular. Thus, from the relatively general moral norm 'Love your neighbour' may be deduced the relatively particular norm 'John ought to love his neighbour Jane'. Each new norm is derived from the one 'above' it by a purely intellectual operation. The relation between the norms is one of logical validity - or would be, were there such a thing as practical reason.87

Many have believed that positive legal norms are ordered statically. But the idea of simple logical deduction could not have convinced someone so well acquainted with bureaucracy as Kelsen. Nor was the idea of simple deduction from a norm made in Vienna to a norm applicable to provincial peasants convincing Ehrlich, whose 'free law theory (Freirechtslehre)' of judicial decision88 paralleled the attention to judicial policy developed by Geny in France and in American 'legal realism' and 'sociological jurisprudence'.

Kelsen's Viennese colleague Merkl developed, and Kelsen adopted, a model of legal order as dynamic hierarchy, or 'steps and stairs (Stufenbau)'. In this model, a positive legal order is conceived as a chain of authorizations addressed to organs of the state. The 'higher' organ cannot foresee all circumstances requiring regulation and must delegate power, with discretion, to a 'lower' organ. The higher organ creates a 'higher' norm authorizing the lower organ to create not a particular 'lower' norm (in which case there would be no point in the delegating) but a lower norm of a certain kind and perhaps also through a certain procedure. Thus, in the most familiar case, the constitution authorizes the legislature to create statutes, which authorize the higher executive organs to create regulations, which authorize lower executive organs to create lesser regulations. Expressed more precisely: each higher norm recognizes the act of will of the lower organ - or recognizes custom - as a 'law-creating fact'. Since there is a reference to acts, at no stage is law-creation a matter simply of logical deduction. The new norm is not a product of logic, nor even a product of knowledge - since knowledge of the earlier law, however ambiguous, does not produce a new norm. The organ's act of will draws on both the authorizing norm and other sources, including norms drawn from morality and politics; however, the moral and political norms do not thereby become part of the legal order.

The higher and lower legal norms stand in a relation of 'validity' in the sense that the higher norm authorized the creation of the lower norm. In dynamic order a norm 'is not valid because it has a certain content' but 'because it is created in a certain way'; in principle, it may have any content at all, although sometimes a higher norm prescribes that lower norms must or must not have certain contents."89 The legal order contains both general and individual

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norms: Kelsen rejects both the European doctrine that only general norms are law, which implies that judges do not make law but only apply it, as well as the extreme American legal-realist doctrine that only the courts create law, statute being merely a source; there is no line to be drawn between law-creation and law-application.90 For this reason, a norm considered void - for example, because unconstitutional - is void only when declared so by a court of final jurisdiction.91 'The doctrine of the hierarchy of the legal order', in short, 'comprehends the law in motion, in its perpetually renewed process of self- regeneration.'92

The model for 'validity' in this 'dynamic' sense is the sense of 'validity' familiar from constitutional and administrative law: one can readily see how the idea of a dynamic legal order expresses, from the standpoint of legal normative science, the form of the modern, bureaucratic state. However, the model is intended to be applicable to any 'form of state': democracy or autocracy, republic or monarchy.93

Custom does not fit readily into Kelsen's picture. He supposes that regular behaviour can give rise to a collective will that it is right, although the subjective meaning of that act of will can become its objective meaning only if a higher norm institutes custom as a law-creating fact, possibly as the fundamental law-creating fact.94 This way of incorporating customary law into the picture of dynamic order avoids supposing a romantic 'national spirit' that recognizes customary behaviour,95 yet it fails to address the problems that all philosophical positivists have with the idea of customary law: of how an ought can arise in the first place from an is; and of how, even then, that ought could be binding.

Although Kelsen long supposed that dynamic order could contain static elements,96 he moved toward denying the possibility of static order even for a moral order, with three arguments. His first argument is, that the concept of static order supposes the existence of practical reason; thus he implies that no such order can exist.97 The second and third arguments rest on the distinction between general and individual norms. A norms is 'individual' if it is directed toward a particular person in respect of a particular act; otherwise, it is 'general'.98 Kelsen insists that dynamic legal orders contain individual as well as general norms. The second argument is that what appears to be a deduced norm is not actually a new norm99 - so that no question of ordering arises. The third argument is that, since the author of a general norm cannot completely foresee the behaviour to which the norm may be applicable, the norm must always be subject to 'individualization', in which, out of the abstract, general norm, a concrete, individual norm will be created to apply in the particular case. Accordingly, when a general norm is created it is then only partially valid; it becomes wholly valid only when it has been individualized: thus the validity of a general norm is necessarily a dynamic process.100

Drawing a distinction common in German theory, Kelsen specifies that he means 'constitution' in the 'material' sense - that is, 'the positive norm or norms which regulate the creation of general legal norms', which may be wholly or partly unwritten - as distinct from a constitution in the 'formal'

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sense, which is a document and might contain other kinds of norm as well.'10 (Thus, he might have said, there is a 'British Constitution' in the material sense only.) Later he relativizes the meaning of (material) 'constitution' by noting that, in the dynamic chain of validity, each higher norm is a 'constitution' in relation to each lower norm.'02 Except for the final act executing a sanction, law-application is also law-creation.'03

The concept of dynamic legal order, Kelsen thought, marked the pure theory as anti-formalistic; he believed that it achieved with more rigour the anti-formalistic aims of the 'free law' theory and American 'legal realism'. In fact it denies that law can be seen as a logical whole and points juristic attention away from issues of contradiction and toward real social conflicts.'04

Kelsen distinguishes and emphatically rejects a third sense of 'validity', as meaning effectiveness.'05 Effectiveness, he insists, is not validity but a condition of validity. The validity of a positive moral or legal norm rests upon two conditions of is: that the norm shall have been posited (its positivity) and that it shall be 'by and large effective' (its effectiveness). To ask that a norm be totally effective would be absurd: a norm is posited precisely in order to regulate conduct contrary to it. Nor is a norm valid only when it is effective: it is valid when posited; only as valid could it become effective; but it loses its validity if it fails to become, or later ceases to be, by and large effective. Likewise a legal order is valid even though not all of its norms are effective, but loses its validity when it permanently ceases to be by and large effective. Thus validity and effectiveness are not identical, although validity depends on effectiveness - or, in other language, law (or right) is not the same as power (or might), but is dependent on it: in this sense, 'law is a particular order (or organization) of power'.'06 Where 'effectiveness' means only conformity with norms, without considering the motive for the conformity, 'effectiveness' has 'a normative, not a causal, meaning'.107

While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general norm is actually two norms. A general norm, he says, is presented in the form: 'People ought to refrain from stealing; if a court has established that a person has committed a theft, that judge ought to create an individual norm stating that that person ought to be put in jail'. The latter part, Kelsen holds, is a 'primary' norm, directed to an organ, stating that coercion ought to be applied; the former part is a 'secondary' norm, also directed to the organ, stating the reason for the primary norm.'08

This seems strange: Austin, for one, follows the sequence of presentation.109 Kelsen, however, is starting not from the norm as written but from behaviour. Perhaps at no point is he more sociological. The primary norm is effective directly, the secondary norm only indirectly; the legal order is effective principally through its primary norms."11 What one observes is people being deprived of goods, imprisoned, executed. As one asks for the meaning that the actors attribute to their behaviour, one comes first upon a norm authorizing the organ to impose the sanction. Next one finds a norm giving the reason for that authorization - although this norm is perhaps

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superfluous and is often not stated distinctly but only implicit in the primary norm.111

2. Law and Morality For positive legal norms to compose a dynamic order is for them to 'have the characteristic of regulating their own creation and application"'12 and occasionally Kelsen writes as if this is the distinguishing feature of law."13 Elsewhere, however, he holds that moral norms, too, may compose a dynamic order. The feature that distinguishes law from the other social orders, and particularly from morality, is rather its coerciveness - not only that it exercises 'psychic coercion', which other social orders also do, but that it prescribes specific coercive acts directly as sanctions for nonconformity with its norms. 14 Moral norms, in contrast, are encountered as norms regulating particular behaviour rather than as norms prescribing a sanction - and then the sanction is first positive, as approval, and only subsequently negative, as disapproval - and often without any norm prescribing a sanction. The moral norm regulating behaviour is primary - the sanctioning moral norm, if any, secondary.' 11

Kelsen insists that morality is no part of law. Law has no moral content: there are no mala in se but only mala prohibita; a delict is not outside law or a rejection of law but is within law as the condition for imposing a sanction."16 Nor is law as such intrinsically good: to hold that it is subjects the positive legal order to a new iusnaturalism and thereby provides an 'uncritical legitimation' of the order. Indeed, if one were to give up 'the solidly fixed frontier over against the concepts of morality and politics', and count moral and political principles and policies into law, one would have to count in every factor influencing the creation of law - including the interests of party and class." 17

This stance is starkly evident when Kelsen extends the concept of sanction beyond the concept of reaction to specific behaviour, to include reactions to circumstances that the state finds undesirable - arrest on suspicion, protective custody, internment, expropriation of property in the public interest. All these, even committal to an extermination camp, 'cannot be considered as taking place outside the legal order'."s8 But the concept of a law of law is not extended likewise.

Here Kelsen is tense. Within his philosophical positivism, on one side his strong sense of morality and justice is subject to an insistence that justice be relative, a justice of tolerance which among other things is a social precondition for the practice of science.'19 Obversely, however, he identifies and subscribes to the modern appearance of law as mere technique. He characterizes law as 'a specific social technique for the achievement of ends determined by politics' and the legal scientist as a mere 'technician', not concerned with the political aims of the legal order being serviced.120 This position is vulnerable to the Frankfurt School's critique of philosophical positivism's privileging of technical or instrumental rationality. The 'scientific' approach is privileged as 'objective', while the practically rational reasons for adopting and pursuing it are always already removed from

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argument by characterizing all evaluation as merely emotional.121 In this perspective, Kelsen privileges in the name of science the instrumentalism whose extreme consequences as law he abhors and of which he was nearly a victim.122

LEGAL ORDER, JUDICIAL KNOWLEDGE, AND LOGIC

1. Echoes of Legal Realism

In formulating a legal proposition describing a general norm, we have seen, Kelsen specifies: 'if a court has established (festgestellt)'. Recalling the Kantian principle that there are no 'things in themselves', Kelsen acknowledges that the delict to which a sanction is imputed is not a raw event but an event as constructed under the concept 'delict', or a concept of a particular kind of delict, by a court. Then, for example, the legal norm prohibiting theft says not 'If someone has stolen, the court ought to order that they ought to be put in jail' but 'If the court hearing the case has established that someone has stolen, that court ought to order that that person ought to be put in jail'.123 Under the secondary norm, it seems, the court constructs a fact- in-law as a condition for the application of the primary norm.

Such a view of the matter inserts a cognitive element in the heart of the dynamic order, threatening to blow apart the dichotomy between the categories of is and ought. On further reflection, Kelsen takes a distance from the specialized legal meaning of feststellen: 'to declare', as in a declaratory judgment. What the court does is 'not descriptive, that is, declarative, but constitutive'. The establishing that a delict has been committed normally forms part of the primary norm.124

The further Kelsen goes toward characterizing the secondary norm as 'superfluous' - as either existing but unnecessary or existing only by implication - the closer he comes to the extreme American 'legal realism' of Gray, who maintained that law is only judicially created norms, for which legislation is but a source,'12 and consequently also to abandoning the 'separation of powers' differentiation of judiciary and legislature.126

Kelsen does not, however, acknowledge courts to have unfettered discretion. Existing general norms require the courts to apply them, and courts can depart from them only within the discretion that those norms allow. This fettering is not set aside but only limited, in the extreme application of the 'principle' of resjudicata, that an individual norm may be legally valid even though it does not correspond to any valid general norm, either when there is no such norm or when such a norm prescribes differently (recall that, for Kelsen, a void norm is so only when declared so by a court of final instance). This view corresponds, Kelsen believes, to the way that courts actually behave.127

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2. Logic and norms

Kelsen insists that, if there is no practical reason, logic cannot apply to norms. Logic is applicable to legal propositions but not to legal norms. Norms cannot be true or false, only valid or invalid, in a non-logical sense, which is also their existence. The pure theory is not a 'legal logic'.'28 Where logic is applied to legal propositions, still logical questions must not be confused with psychological or political questions.129

Kelsen deals with logic only in the form of the syllogism. A premiss or conclusion of a syllogism may describe a norm in three ways. First, by 'quoting' the norm - for example, 'There is a valid general norm: "Everyone ought to keep their promises to others".' Second, by establishing the existence of a norm, as an objective meaning - that the subjective meaning of an act of will is also its objective meaning because the act is authorized by a valid norm of a positive moral or legal order. Third, in logic of probability, there can be a syllogism concluding as to the probability that, in a particular case, the judge will create an individual norm that will correspond to a certain general norm.130

Nonetheless, Kelsen holds, within an order norms themselves may conflict. Conflict may be two-sided, where to follow either norm would be to breach the other, or one-sided. It may be total or partial - partial when to follow one norm would be to breach the other where it applies conditionally - and either necessary or only possible. I will cite two of his examples. Between the norm 'Bigamy ought to be punished' and the norm 'Bigamy ought not to be punished' there is two-sided, total, necessary conflict. Between the norm 'Murder ought to be punished with death, if the murderer is more than twenty years old' and the norm 'Murder ought to be punished with death, if the murderer is more than eighteen years old' there is one-sided, partial, and not necessary but only possible conflict.'3' Since legal norms can conflict, any legal norm might face its opposite: therefore the values embodied in any norm can only be relative.'32

Kelsen's idea of conflict looks very like contradiction, but he insists that a conflict of norms is not even comparable with contradiction. For conflict of norms can be resolved by derogation, which is the application of a further norm, not of a logical principle.'33

A legal order, Kelsen holds, has no gaps. He subscribes to the view that 'whatever is not forbidden is permitted'. Whatever could have been forbidden yet is neither forbidden nor positively permitted - that is, permission expressly given - may be said to be negatively permitted; the individual is in that sense 'free'. For the situation where an organ is faced with a quite unforeseen case, the legal order contains, expressly or tacitly, a norm authorizing the organ to create a new legal norm on the basis of moral and political principle; although there is no norm to apply to the case, the legal order as a whole is applicable.134

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3. Up the Law So far, Kelsen's reasoning has been downward, in terms of the dynamic legal order's chain of authorization. But he also reasons upward.

He takes on board the view of both American 'legal realists' and Belgian theory of legal rhetoric that a court may first intuit an individual norm to apply and only afterwards elaborate 'grounds' for its application. In that situation, Kelsen holds, the syllogisms are still relevant, but they describe not the way in which the individual norm is created but the way in which its application is justified; the description is still, as intended, of an organ's practice. 13 5 Again, the anti-formalist tendency of the concept of dynamic legal order appears.

In the same spirit Kelsen holds that, when a norm is obeyed, the person obeying it reproduces it, as meaning, in their mind. The addressor means, the addressee understands; through that understanding, the norm becomes a meaning for the addressee; the addressee thereby addresses it to himself or herself. Although this is not to say that the addressee always 'recognizes'- that is, accepts - the norm; the addressee might not obey it, or might obey it only because of the threat of a sanction.136

However, when an organ to which a general norm is addressed is thereby authorized to create a lower norm, it will do so only if it recognizes the higher norm as suitable for application to the concrete case. This will not be an exception to the dynamic order, but will be an authorized exercise of discretion. A 'recognition' theory is correct to this limited extent.'37

The salient feature of these arguments is that Kelsen is looking at the organ's decision from the standpoint of the norm's addressee.'38

LAW, STATE, AND INDIVIDUAL

The pure theory 'is objectivistic and universalistic', aiming 'to conceive in each part of the law the function of the total law'. Consequently it cannot view the legal order from the standpoint of the individual legal subject and its interests. Thinking in terms of rights must be reduced to thinking in terms of the whole legal order.'39 But this is to be done sociologically, for norms regulate not persons as such but their behaviour. Accordingly, a 'legal relation' lies not between persons as such but between 'the behaviour of two individuals as defined by legal norms', that is, as content of legal norms.'40

Kelsen speaks of 'the state' in a broad and a narrow sense.'14 The state in the broad sense is defined by territory and population. If one's eye is on human behaviour, one finds a range of legal orders. In some, general legal norms are created by a central legislative organ, so that the legal order may be called 'relatively centralized'. The idea of its centralization refers only to its sphere of validity: for it may be valid over fragmented territory or differently for different sectors of the population (for example, as to 'language, religion, race, sex or profession'), or not effective uniformly. Such a legal order is a 'state'. In 'the primitive pre-state order and the super-state order of general inter-

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national law', however, general legal norms are created through custom. Thus these legal orders are 'relatively decentralized' and should not be called states. Here, Kelsen adopts the idea of 'the state' in international law.

The narrow sense is taken from state legal orders, as 'the bureaucratic machinery of officials, headed by the government' (that is, the executive power). This may be seen as a 'partial legal order' within the total legal order. Thus one may speak of the total legal order exercising 'direct state administration', which is to say jurisdiction, and the executive 'indirect state administration', which is essentially, as conformity with the former's law, a mode of transaction. Here Kelsen acknowledges the interventions by the modern state (in the narrow sense) in the 'private' sphere, as well as the bureaucratization of both public and private administration.

The state in either sense, however, must be seen as the behaviour of real individuals. Consequently, rights and duties 'of the state' are to be understood as rights and duties of officials. Since they are officials only as persons acting with legal authority, every state is by definition 'governed by law' - that is, is a Rechtsstaat. Therefore the expression Rechtsstaat is better confined to those states that may be described as also committed to the ideas of democracy and legal security.

In traditional theory, just as the Christian religion presents 'God' as both creator-ruler and immanent in the world, the state has 'two sides' and is 'self- obligating': that is, it appears on one side as personified author of the legal order, on the other as a legal subject, obligated by the legal order. With the decline of 'a religious-metaphysical justification of the state', this theory, that of the Rechtsstaat, performs the inestimable ideological service of presenting the state's self-justification through law. One of the pure theory's main contributions, in Kelsen's eyes, is to have unmasked this ideology.

One reason for Kelsen to understand 'the state' primarily under its international-law concept is that this permits him to identify the state with the legal order, independently of the concept of the state in the narrow sense, which attaches to the public-law aspect of the legal order. Indeed, it permits him radically to relativize the distinction between public and private law.

Traditional theory of the Romanist legal systems divides the legal order into 'public' and 'private' 'law' (the Common Law systems also segregate 'public' law). Kelsen wants to relativize the distinction. At the least, he holds, it is made on different criteria for different purposes.142 However, he goes much further. As with 'the state' in the narrow sense, a corporation may be seen a partial legal order within the total legal order.143 Indeed, all individuals appear as 'organs' within the total legal order, in that they are 'authorized' to create law, at least by making contracts. Traditional concepts such as 'capacity', 'competence' and 'jurisdiction' hamper one's ability to see that the scope of authorization includes not only legislation and adjudication but also the exercise of rights and the formation of contracts and treaties. Whether an individual is to be characterized as a 'legal organ' in all law-creating activities or only, according to division of labour, in some (for example, as an official) is

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for Kelsen a moot point.'44 The main thing is that all such law-creation falls within the legal order.

Thus the pure theory 'relativizes the contrast between private and public law, which traditional legal science absolutizes - changes it from an extra- systemic difference, that is, a difference between law and non-law, between law and state, to an intra-systemic one'. And in this the pure theory shows itself once again to be 'a true science' by dissolving the ideology involved in the differentiation of public and private law, an ideology that serves either to release government from legal constraints or to create 'the idea that the realm of political domination is restricted to public law, that is, primarily to constitutional and administrative law, but entirely excluded from private law'. The latter view creates the illusion that private relations, in the capitalist market, have, in their autonomy, an intrinsic relation to democracy; whereas in capitalism not only norms of private relations but even general norms may be autocratic as easily as democratic.'45

As one would now expect, for Kelsen rights and duties derive exclusively from general norms and are themselves individual norms, considered in relation to the subject to whose behaviour the general and individual norms apply. Rights are 'reflex rights', that is, correlative to an obligation (the idea that rights have priority over duties probably derives from the idea of natural rights): they are private rights as power, through lawsuit, to participate in the creation of an individual norm ordering the imposition of a sanction for nonfulfilment of an obligation; political rights as power to participate in law- creation, whether directly as member of a legislature or indirectly as voter, or in creation of a norm repealing an unconstitutional norm; or rights as power following permission from a governmental authority. Rights do not stem directly from individual interests, since the individual's right is only to obtain fulfilment of a state organ's duty to apply a sanction. Moreover, the provision of such rights is not an essential function of law but pertains only to parts of a capitalist legal order.'46

In the spirit of limiting the 'metaphysical bases' to what is strictly fundamental to a universal concept of law, such concepts as 'legal organ' and 'reflex right' are characterized as not essential to the pure theory but 'merely auxiliary' - to 'facilitate the description'.147

Another of these is the concept 'legal subject'. As distinct from the human being, who is a construction of the natural sciences, the person is a construction in legal science or ethics; if a human being has both a legal and a moral personality, the human being as 'biologico-physiological unit' is their substratum. The legal person (or subject) may be a physical or 'natural' person, or a juristic or 'artificial' person (such as a corporation or the state). These are not physical realities, nor even creations of the law, but convenient personificatory metaphors through which legal science presents 'the unity of a complex of legal obligations and legal rights'. The person is not different from that complex, any more than a tree differs in substance from the sum of its parts. The artificiality of the juristic person is well known: but the physical or 'natural' person is equally a construction of legal science as a component of the

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legal order. It 'has' rights and obligations only figuratively: to present that image as real is an ideological move intended to privilege rights of private property.148

The whole legal order, as effective in terms of individual behaviour, constitutes a 'legal community (Rechtsgemeinschaft)', to which in the last analysis authority is attributed and which is 'the state' in the broad sense. In this sense the legal order is a 'state legal order (staatliche Rechtsordnung)'.149 Thus to place primary emphasis on the broad concept of the state may seem strange, even a device to de-emphasize the narrow concept, until one remembers that through Kelsen's lifetime international peace was not obviously the normal situation. He is surely justified in taking armies to be more significant than police.

Now, perhaps, the riddle of 'objectivity' can be solved. Kelsen's primary focus is on human behaviour. When, secondarily, he examines the meanings that human subjects attach to their behaviour, he finds that they understand their behaviour as contents of oughts, in particular of legal norms. These norms, taken as a legal order, are also 'the state' in the broad sense. Human subjects then appear as 'organs' of the state. Thus, on one side, human subjects are always already organs of the state, in which case they cannot be the ultimate authors of legal norms; while, on the other, the state itself appears only as a point of imputation. This point of imputation remains 'objective' in the sense of Kelsen's first major work. Consequently, its organs are endowed with that objectivity and communicate it to the legal norms that they make. The authors of legal norms do not appear as subjects whose meanings can be criticized within normative science.

STATE AND INTERNATIONAL LAW

Public international law falls within Kelsen's definition of law. It is an order of norms: a basic norm establishes the customary behaviour of states as a law- creating fact; from custom arise norms regulating the behaviour of states in general. One of these norms is pacta sunt servanda (agreements shall be kept to), according to which treaties are made. Some treaties set up international organizations, such as the International Court, which issue further norms. Thus there is a hierarchy of norms. The norms are coercive, in that breach is by and large visited with a sanction, whether reprisal or war. Since the bellum justum (just war) principle is universally accepted through treaty, war conforming to that principle is a sanction.150

To say that international law authorizes or obligates states means that it authorizes or obligates individuals indirectly, through the state legal order - just as that order authorizes or obligates individuals directly through the partial legal order which is a corporation. The international legal norm is however 'incomplete' in that it specifies only the authorization or obligation, leaving to the state legal order identification of the individual to carry it out; that done, the individual's behaviour is attributed to the state, as the state's

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behaviour. In the same way, a state commits an international delict when it authorises or obligates an individual to do something in contravention of international law. That sanctions are exerted against all members of the state, even if they were not involved in the delict, shows that state members are collectively and absolutely liable for international delicts. There is, however, a tendency for international law to obligate individuals directly, such as war criminals. In these exceptional cases, collective and absolute liability gives way to individual liability with fault.151I

Kelsen insists on 'the epistemological postulate: to understand all law in one system - that is, from one and the same standpoint - as one closed whole'. This postulate excludes a dualist view of the relationship between state and international legal order. It permits only the two monist views: either that international law is 'a legal order delegated by, and therefore included in, the state legal order' or that it is 'a total legal order comprising all state legal orders as partial orders, and superior to all of them'.'52 As late as 1941, Kelsen believed that this entailed the primacy of international law, to form with the state legal orders 'one uniform, universal legal system'. 'As it is the task of natural science to describe its object - reality - in one system of laws of nature, so it is the task ofjurisprudence to comprehend all human law in one system of rules of law'.153 He had not yet distinguished clearly between legal norm and legal proposition; if the legal proposition is formulated in terms independent of its subject matter, unity of theory does not entail unity of subject matter.' 54 However, international law has never been so effective and by the end of World War II Kelsen preferred the more realistic position that the alternative monistic views are equal in the eyes of science. Yet, politically, he maintained the inter-war theme of 'peace through law' and a frank distaste for the state- centred outlook.155

THE BASIC NORM

Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some 'basis (Grund)'. If the separation of'is' and 'ought' is to be maintained, that basis or ground can only be a norm, a 'basic norm (Grundnorm)'.

Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a robber demands money from me. If I ask why I ought to hand my money over, no further reason can be found. The meaning of the robber's act of will is merely subjective. In the second situation, a tax official demands money from me. If I ask why I ought to hand my money over, the official refers to a regulation. If I ask why I ought to obey the regulation, the official refers to a statute. If I ask why I ought to obey the statute, the (patient) official refers to the constitution. If I ask why I ought to obey the constitution, the official might be able to refer to an earlier constitution on whose authority the present constitution was created. Kelsen characterizes that earlier constitution or, if none, the present constitution as the 'historically first

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constitution', created by custom or revolution. The official's resources end with the historically first constitution - but I can still ask why I ought to obey it.

Kelsen proposes that the jurist - the legal scientist' 156 - should 'presuppose', as the meaning of a juristic act of thought, a norm prescribing that the historically first constitution ought to be obeyed: 'One ought to obey the prescriptions of the historically first constitution.' Or, more fully: 'Coercion ought to be exerted under the conditions and in the manner prescribed by the by and large effective constitution and by the by and large effective general and individual norms created according to the constitution'. That is: that constitution is to be understood in legal science as the objective meaning of the originating custom or act of will.

This 'basic' norm does not actually exist: it is only presupposed in juristic thinking as the 'reason for the validity' of the order. Kelsen specifies it, in Kantian terms, as a transcendental-logical presupposition - or, a constitution 'in a transcendental-logical sense' - that is, not a proposition describing law but a rational condition for constructing propositions describing law.157

Nonetheless, for the case of a particular legal order, the particular basic norm refers to a real constitution. The acid test of the concept is a revolution: if the revolution succeeds, in the sense that the new constitution and the norms made or adopted under it are by and large effective, the jurist presupposes a new basic norm.

Nor does Kelsen claim that the concept is original: it 'merely makes conscious what most legal scientists do, at least unconsciously' (that is, when they have not sufficiently clarified their premisses), when they are not being behaviourists or iusnaturalists.' 58 However, the presupposition is not a moral recognition. The legal order, which is also a state, is differentiated thereby from a gang of robbers, but the criterion is legality - not justice, as with Augustine.'59

The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which science can understand some oughts as constituting an order, hence as norms - whether legal or moral. On the other, it is the condition on which legal science can understand the meanings of some acts of will as objective - that is, as legal norms.

It does not work. Although a basic norm is a scientific construct, the meaning of an act of thought, the thought is ofa norm. And one can still ask, in thought, what is the basis of that norm's authority. If the answer is a still more basic norm, the question can be asked of that norm, too. Thus, presupposing a basic norm, which was intended to tie off the infinite regress of questions about authorization, merely repeats the regress. Moreover, since even a hypothetical norm is conceived as the meaning of a hypothetical act of will, one finds oneself in a regress through ever less evidently human wills.

It took Kelsen half a century to realize this. When he did, he reached for a solution as bold as that of the category of 'ought' or the 'basic norm' concept itself. He declared that the basic norm is not a hypothesis but a 'fiction', though in a special sense. In everyday parlance, a fiction is a proposition that, although false, is useful. Vaihinger, however, had termed this a mere 'semi-

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fiction'. In Vaihinger's 'philosophy of "as if"', a proposition is a 'genuine fiction' if it is not only false but also self-contradictory. Kelsen held, in these terms, that the basic norm is a 'genuine fiction' because, in addition to being a concept of something that does not in fact exist, it is self-contradictory in that it embodies an infinite regress.160

This does not work either. Vaihinger's concept is incoherent: what is logically invalid cannot be either true or false, indeed is probably meaningless.

At one point, Kelsen held that a basic norm is presupposed by 'the individual' in that the general population presupposes a basic norm and that legal science only brings it 'to consciousness'.161 He swiftly resiled from that position162 and rightly so: it is an empirical assumption, not obviously true and Kelsen produced no evidence for it.

If successful, the 'basic norm' concept is the keystone of Kelsen's pure theory and hence of his normative science of law; otherwise, it is their Achilles' heel.163 The heel has disintegrated of its own accord. Kelsen's theory of law is left without even a means to identify a norm as legal.

CONCLUSION

Surveying this wreckage, an initial question is whether it is worth continuing on the same philosophical basis. Although the charge of 'formalism' can be answered within Kelsen's philosophical framework, that framework itself is shaky. One problem is that the construction of reality simultaneously in different 'modes', so that a thing or person appears through a cubist sort of combination of aspects,164 contains no guarantee that a construction in one mode will have anything to do with a construction in another - the notion of a 'modally indifferent substratum' is obscure.16s Other difficulties lie in the rejection of practical reason. First, the more one regards reality as constructed rather than given, the less ground there is for assuming that even the descriptive side of thought is rational. Second, there is much evidence for the existence of practical rationality; indeed, it is hard to see the point of the concept of legal order, even dynamic legal order, unless it is assumed that the creation of legal norms is rational to some extent. Third, Kelsen provides himself with only two options - that practical reason exists and is absolute, and that the practical sphere is only emotional. It is hard to see why he could not take the Weberian option of relative practical reason, corresponding to the relative theoretical reason in which both thinkers' conception of science is grounded. A descriptive science of law, even as Kelsen conceives it, can proceed whether or not there is also a prescriptive science of law and whether or not the norms to be described have a relatively rational element.

Resolution of the philosophical difficulties might strengthen Kelsen's enterprise or require its abandonment or transformation. Transformation would be a three-sided task: (i) to complete the theory's stance of critical independence, (ii) to reformulate the theory compatibly with that stance and (iii), through the eyes of that reformulated version, to take the existing

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version as a rigorous example of the internal structure of legal ideology. The scope of enquiry would bring iusnaturalism back into the range of

objects of study. Kelsen 'kicks off his theoretical ball to see where it rolls and where it stops if it completes its course without hindrance', which effects a reduction ad absurdum of legal positivism166 - especially in the collapse of the pure theory with the loss of the concept of a basic norm. Yet, since that concept was meant to replace the foundations of both legal positivism and (if natural law existed) iusnaturalism, Kelsen's end point tends to reveal that legal ideology embraces both legal positivism and iusnaturalism.167 For a critical perspective should not simply dismiss erroneous beliefs as illusions168 but study the fact that people hold those beliefs and act in terms of them.

Yet the pure theory excludes the very issue of ideology in the strong sense of a kind of misdescription.169 First, Kelsen's interpretive understanding is confined to the scientific construction of norms in their form as oughts. Save in the moment when he considered that a basic norm might be presupposed by the general population, Kelsen does not consider descriptive subjective meanings on their own account. Knowledge of law is understood not as existing in the consciousness of the general population but solely as a product of legal scientists, whose subjectivity is not clearly emancipated from the alleged objectivity of legal authority. And, although occasionally Kelsen acknowledges judicial cognition of norms, he is reluctant to consider how norms may be descriptive through their content - for example, in describing a social relation as 'a contract' or as 'property'. Here, even to an extent in Kelsen's own terms, normativism is guilty of formalism.170

All the same, Kelsen raises three issues of basic relevance to ideology- critique, which many 'critical' writers ignore: (i) how to describe an ought without at the same time deciding whether to recognise it as to be followed, (ii) how to describe a legal ought without necessarily doing so in legal terms and (iii) what is the role in legal ideology of the concept of the natural legal person? The last, especially, requires further development in terms of class and gender, taking into account Kelsen's own sociology from below.

A barrier to empirical enquiry, however, is Kelsen's lack of attention to language.171 This inattention is permitted by his distinction between an act of will and its mode of expression, but that makes the nature of an act of will still more obscure. All the same, so far as claims that language is all are coupled with attention only to official texts or to the investigator's 'ordinary' dialect and thus tend to service social control in the era of media saturation,172 this gap in Kelsen might not be damning.

Accordingly, it seems worth pursuing Kelsen's work on description - both in a neo-Kantian framework, such as Weber's, and in other frameworks into which his ideas can be translated. The legal proposition needs to be translated from the refractive into the interpretive mode. The law of law does not fit all of Kelsen's kinds of legal norm in any case and appears to be a misguided attempt to find an analogy of the reflective mode, on the assumption that legal norms are as objective as physical things ('social facts', Durkheim said). Whether anything like the law of law would be required if the legal proposition were to

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become interpretive may be doubted. And, with the passage from refraction to interpretation, it may no longer be necessary to seek a foundation such as a basic norm.

There remains Kelsen's 'will' theory of norms. If one acknowledges as empirically weak Kelsen's assertion that legal norms never occur singly and if one were then to misunderstand his 'will' theory in the politically abolutist terms of most legal science - which Kelsen more than anyone sought to combat - his concept of a legal norm would appear close to that in the Nazism of Schmitt.173 But the pure theory comes close to being a set of independent statements about the nature of law, considered as a social belief. If one describes that belief with such independence, one's later valuations might have room to acknowledge that, although every kind of justice may have been accomplished through law, so h

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The Critical Legal Science