norm and grundnorm and hans kelsen and jeremy bentham and kant and norma normans and norma normata

I have been teaching in the field of jurisprudence (philosophy of law) for a few years, and I keep running up against the word "norm" in the "literature," as it is euphemistically called, and so I thought I would examine some English words swirling around the concept of a "norm."

The Word Norm

I was surprised that the word "norm" only entered the English language in 1821, when Coleridge used it in Blackwood's Magazine: "Each after its own norm or model." Of course Coleridge knew his Latin, and would have known that it meant a variety of things: a "square" used by carpenters for making right angles (synonymous with regula), or, more frequently, a rule, pattern or precept, such as was used by Cicero when he said "hanc normam, hanc regulam, hanc praescirptionem" or when he spoke, in de Oratore, of the "very sharp norms" of musical rhythm. When the word came into English it was used to signify a pattern or type or standard. One could use it in a political sense, as when E.B. Pusey in 1828 said: "Every expression of his upon controverted points became a norm for the party." It entered into English language philosophical discourse when Caird presented Kant's philosophy in 1877 and said: "The mind must find in itself the norm or principle of unity upon which it works." Thus, rather than simply being a model or pattern, norm gradually became the standard, the usual, the typical or the basic principle of operation of something.

The word normal has few attestations in English going back to the 18th century or before, but broke on the English-language scene also in the 1820s, primarily through the institution of the "Normal School," a school to train teachers. Teachers were to be trained in the "norms" that they would then impart to their pupils. The "normal school" was derived from the French ecole normale, which was first set up by decree during the middle of the French Revolution in 1794...do we hear a bit of the revolutionary "flair" of producing patriots who are, in every respect "normal"--i.e., in a "standard" way committed to the revolution, in that term?

Norms in Law

You cannot understand the way that philosophers of law use the term "norm" today (if, indeed, philosophers of law make any sense whatsoever) without first understanding the way the term came into legal discourse primarily through the work of the Austrian Hans Kelsen (1882-1973). This is not the place to exposit or try to understand his "pure theory of law." Suffice it to say, however, that in discussing his pure theory of law he posits that law is about norms--about "oughts" and an "ought system," which he calls a Sollensordnung. The legal system, for Kelsen, is a structure of legal norms rather than social facts. In this he was distancing himself from the interesting work of Eugen Ehrlich (1862-1922). The objective validty of legal theories is grounded in an assumption that Kelsen calls the Grundnorm or basic norm.

What Kelsen was so interested in doing after WWI (he was involved in drawing up a constitution for modern Austria after the dismemberment of Austria-Hungary by WWI) was to try to "ground" law in some untouchable, basic, fundamental principles that would withstand the withering scorn and acids of the 20th century. That is, Kelsen was thoroughly steeped in the "modern" world of positivist law, originating in Bentham in the late 18th century, but was aware that the weakness of positivism was its inability to do more than to "describe" a situation. Kelsen wanted something that was "normal," that would be directive or prescriptive. But, he couldn't return to a natural law framework. Kant, his philosophical hero, had destroyed natural law in Germany just like Hume, the one who had awakened Kant from his "dogmatic slumbers" had dismanted natural law in England (it took American thinkers until after the Civil War to dispense with natural law types of argument).

Thus, Kelsen was trying to develop an authoriative system of law in the context of positivist victory. How could he do so? By putting all his eggs in the "norm" basket, and arguing that norms were needed to guide a free society. One could debate the precise contours of legal norms but there they were. Kant, therefore, gave the philosophical basis and the basic term for Kelsen, and the term "norm" then entered into legal discourse (early in the 20th century). I think that it still has utility today, but usually whenever a philosopher of law touches the term it has a "reverse Midas" effect--rather than turning to gold, it turns to dust, mostly because the philosophers of law can't explain their way out of their various linguistic prisons.

Norms in Theology

I will be much briefer on this one. Protestant theology, beginning with Luther, brought a few Latin phrases into the discussion that used the word "norm." They are norma normans and norma normata. No right-thinking person needs to know these terms; that is why I spend some time on them. You have to know that normans is the present active participle, while normata is the passive participle, which functions as an adjective. Thus, a norma normans is a "the ruling rule," and is a term applied to Scripture as the basic Protestant "rule" of faith and practice. The norma normata is, in contrast, the "ruled rule," or the secondary norm or the norm that is only relatively authoritative. This refers, in Protestantism, to a Confession of Faith. Such a confession is supposed to be derived from the Scriptures and capture the essence of Scripture "doctrine," but must, at least in theory, be subordinate to Scripture.

Thus far with norms. Let's see now, in the next essay, what happens when you break or violate the norms.

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