November 4--Kelsen II
Professor William R. Long 11/04/04
The Pure Theory; the Basic Norm
Kelsen is thus interested in developing a theory of law as an "ought," as a "science of mind." But he also wants to free his "science of law" from methodological dependence on other "sciences of mind." Thus, in the first page of his most famous book, The Pure Theory of Law (1934), he says:
"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]."
Before going on to explain him further, however, the question should be posed. Why? Why does one want to develop a theory of law that is "purified" of all political ideology? Certainly he is indebted to Kant at this point, whose Critique of Pure Reason tried to do the same for the human rational faculty, but is this basic move that he makes helpful to those who study jurisprudence in the 21st century?
I, for one, have taught this class from the perspective that law is a subset of intellectual culture and that in order to understand legal developments, one must understand them in the context of larger philosophical and social movements of the culture. Just as Langdell was trying to raise law to the level of a "science" or "profession" in late 19th century America, I think that Kelsen is trying to "rescue law" from its being just an adjunct of historical or descriptive study. As Stewart says, "The pure theory of law undertakes to delimit the cognition of law against these disciplines, not because it ingores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines which obscures the essence of the science of law." At this point, we are starting to descend deeply into the arcana of German philosophical thought, and so we need to beat a hasty retreat!
The Basic Norm (Grundnorm)
As a "science of mind," therefore, law seeks the realm of the "ought." Kelsen is interested in a basic principle or norm, a basic "ough," that will actually be both descriptive and prescriptive for legal discourse. The word "norm" can mean two things: either descriptive regularity ("You fit the norm") or prescriptiveness ("You must obey the social norms") [I guess there is a third meaning--the fat guy on Cheers]. Kelsen will use the word "norm" in the prescriptive sense. When he uses the word "normative," he means something that is prescriptive, something that ought to be done.
What Kelsen is trying to do in developing or identifying a basic norm is quite ambitious. In the tradition of Hegelian philosophy, which wanted to place all cultures in a grand overarching philosophy of history according to the principle of freedom, Kelsen wants to identify a basic legal principle which will ultimately include or define the legal structures of all cultures. The Grundnorm or Basic Norm is a statement against which all other duty statements can, ultimately, be validated.
In this regard, I think that Bix's description of the Basic Norm (pp. 56-58) is excellent. The Basic Norm is ultimately a sort of act of faith--it is the belief in a principle beyond which one cannot go and which ends up being the foundational principle for all subsequent legal statements. You cannot "go beyond" the Grundnorm because it is an unprovable first step (sort of like the "democracy is best because it is democracy" approach of 1930s-1950s American jurisprudence). Ultimately it appears that the Grundnorm for Kelsen is a belief that one's respective legal system ought to be complied with. Lots of other principles can then flow from this basic realization.
It is a very Germanic mode of thinking to want to get to the "essence" of something--to identify the constitutent part that makes something what it is. Just as Marx wanted to collapse most societal interaction into economic relations (which, ironically, the very conservative law and economic legal thinkers want to do), so Kelsen wanted to isolate that one basic norm that would underlie all legal systems. As such, he is trying to walk a tightrope between the positivist description of law, which he does well, and a more natural law principle-based jurisprudence.
But, more significantly I believe, Kelsen's positing of a universal Basic Norm fueled his own study of international law. In an age like ours in 2004, where our international interdependence is more evident each year, Kelsen's commitment to basic principles that transcend national differences might be the fuel that stimulates ways to make international law function better in our world.
Copyright © 2004-2007 William R. Long