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lecture 8:9. Modern positivism – kelsen
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Lecture notes of 5 pages for the course Jurisprudence at QMUL (FIRST CLASS NOTES!)
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Reading - PSN, ch.5; C, 101-112Lecture 7/8 Modern Positivism – Kelsen
Lecture 7
Biography
- Austrian: Prague, 1881- California, 1973.
- Studied in Vienna.
- Drafted the amended Austrian constitution after WWI - also served in Austria’s Supreme Court
- Moved to the USA when Hitler came to power
- Professor at the University of California
- Constructed a self-contained (‘pure’) positivist theory of law
- Wrote on: justice, international law, political theory, the Nuremburg war crimes trials, etc.
- Throughout his life he tried to construct a ‘watertight’, self-contained positivist theory of law in
various books that built on each other
The question
- What follows from the fact that people treat legal rules as valid norms?
Norm: something that can be used as a guide to human action
The rule that you need to boil the pasta for 10 minutes is a cooking norm.
The rule that you ought not to lie to other persons (barring exceptions) is a moral
norm.
The rule that the police officer is authorised to arrest you if you commit a certain
action is a legal norm.
Legal Norm: an authorisation to an official to impose sanctions
The form of every (primary) legal norm: If A (a citizen) performs a wrong action,
then B (an official) is authorised to impose a sanction.
Norms involve an ‘ought’ (or a ‘should’ or a ‘duty’ or an ‘obligation’) to do something
Norm: something that can be used as a guide to human action
Validity: the mode of existence of norms
In natural reality, physical objects exist or do not exist
VS
In normative reality, norms are valid or invalid
- Overall - What follows from the fact that people treat legal rules as valid norms (ie that they believe
that legal rules make it the case that they ‘ought’ to perform certain actions)?
The underlying premise: a legal rule can be a valid norm (ie. It can generate ‘oughts’).
The problem: how can this be possible?
The solution: a legal rule can be a valid norm if its creation is authorised by another legal rule
which is a valid norm.
The chain of validity
- The legal rule X promulgated by the city council that ‘one ought not to park here’ can be a valid norm:
ie it can be true that one ought not to park here.
- ii) For this to be true, it must be true that there is another legal rule promulgated eg by the
Parliament that authorised the creation of the legal rule X: ie the legal rule Y that ‘the city council is
authorised to decide where people park’. But the legal rule Y must also be a valid norm, so that it is
true that the city council is authorised to decide where people park.
- For this to be true, it must be true that there is another legal rule enshrined eg in the constitution that
authorises the creation of legal rule Y: i.e. the legal rule Z that ‘the Parliament is authorised to
authorise city councils to enact certain legal rules pertaining to these issues’. But the constitutional
legal rule Z must also be valid, so that it is true that the Parliament authorised the creation of the legal
rule Y.
- PROBLEM - At some point there will be no other legal rule to authorise the creation of another legal
rule.
The Transcendental Argument
- There is fundamental phenomenon whose existence is unchallenged or uncontroversial
, i. I think
ii. Legal rules can be valid norms (i.e. can generate ‘oughts’
- But for this phenomenon to exist, a necessary condition that enables the phenomenon must also exist
i. I must exist so that I can think
ii. Something must exist/be valid (what?) for legal rules to be valid norm
- Therefore, this enabling condition must also exist.
i. Therefore, I exist
ii. Therefore, this ‘something’ exists/is vali
- Alternatives
1. The first alternative: This ‘something’ exists (part of natural reality)
2. The second alternative: This ‘something’ is valid (part of normative reality)
- ‘is’ vs ‘’ought’
The first alternative: This ‘something’ exists (part of natural reality)
Hume’s problem: ‘One cannot derive an ‘ought from an ‘is’.’
A description of facts (that just ‘are’) can never be sufficient to justify a conclusion
that someone ‘ought’ to do something.
Bad Example
A baby ‘is’ drowning in a puddle
You ‘are’ able to walk there and save it
Thus, you ‘ought’ to save it.
But we can justify this conclusion only if we insert an ‘ought’ premise
Good argument:
You ‘ought’ to prevent a serious harm to another person if you are able to do so and
this will entail little inconvenience to yourself.
A baby ‘is’ drowning in a puddle; you ‘are’ able to walk there and save it; it will only
take you a couple of minutes.
Thus, you ‘ought’ to save the baby.
- Chain of validity PROBLEM SOLVED – for the constitutional legal rule to be valid, it must be true that
there is a Grundnorm that ‘one ought to behave as the rules of the constitution, and the rules created
according to THE CHAIN OF VALIDITY iv) it, prescribe’
- The hierarchy of norms: (each norm validates the lower norm)
The Grundnorm
- Main points
The Grundnorm is the reason for the validity of all norms belonging to a legal order.
Legal norms that trace their validity from the same Grundnorm form part of the
same legal order. Thus, the Grundnorm constitutes the unity of the legal system.
The rest norms are created by the will of people. But the Grundnorm is presupposed in
juristic thinking. It is the necessary theoretical postulate of the validity of legal norms.
Since it is not posited by the will of people, it is meta-legal (if we restrict the term ‘legal’ for
positive law).
Since it has legally relevant functions (ie it founds the validity of legal rules), it can
also be considered legal (if we take a broader definition of the term ‘legal’).
- Effectiveness
The problem
The validity of legal rules cannot be entirely disconnected from the question of
whether these legal rules are applied by public officials, ie from the question of
whether they are effective. Otherwise, Kelsen’s theory would be completely
detached from reality.
Nor the validity of legal rules can be identified with their effectiveness. Otherwise,
the only thing we need to ask to find out whether a legal rule is valid is the question
of whether public officials apply this legal rule; thus, the Grundnorm would become
otiose.
The solution
The reason for the validity – that is, the answer to the question why the norms of
this legal order ought to be obeyed and applied – is the presupposed basic norm’
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