Jurisprudence Lecture 9: Modern Positivism: Kelsen'S Pure Theory of Law 2

JURISPRUDENCE LECTURE 9
MODERN POSITIVISM: KELSEN’S PURE THEORY OF LAW 2
Law and Coercion

 Sanctions in the Jurisprudential tradition
 Bentham: Every law, when complete, is either of a coercive or an uncoercive nature.
A coercive law is a command. An uncoercive, or a discoercive, law is the revocation,
in whole or in part, of a coercive law
 Austin: Every law or rule is a command. A command is distinguished from other
significations of desire, not by the style the desire is signified, but by the power and
purpose of the party commanding to inflict an evil or pain in case the desire be
disregarded
 Kelsen
o Primary legal norms have the following form: If A (a citizen) performs action
X, then B (an official) is authorized to impose a sanction Y
 The sanction is the consequence of the delict; the delict is the
condition of the sanction
o Secondary legal norms are deducted from primary legal norms and have the
following form: A ought not to perform action X
o Primary norms are directed to officials; secondary norms are directed to
citizens
 Hart
o If we confine our attention to the contents of the law as represented in the
canonical form ‘If A, then B ought to be’, it is impossible to distinguish a
criminal law punishing behavior with a fine from a revenue law taxing certain
activities
o We shall have to step outside the limits of juristic definition (of the term
‘delict) in order to determine when a compulsory money payment is a
sanction or not. Presumably it is a sanction when it is intended as or assumed
to be a punishment to discourage ‘socially undesired behavior’ to which it is
attached; but this is excluded from the definition of delict
The purity of the theory

 The theory is ‘pure’ in the sense that it excludes from the subject-matter of
jurisprudence all issues that are not confined to what the law is
 Thus, sociological observations, psychological explanations, political considerations
and moral values are not within the scope of jurisprudence.
 Kelsen’s Conceptualism
o Neo-Kantian tradition
 Knowledge is not given by experience
 We can understand empirical reality only if we impose concepts on it
 So, each science must come up with its own apparatus of concepts to
organize as meaningful the subject-matter it examines
 Therefore, each science (hence, legal science as well) constitutes a
distinct body of knowledge consisting of its own concepts
 Avoiding the Sociological drift: Contra Syncretism
o Ehrlich: the living law is the law which dominates life itself even though it has
not been posited in legal propositions. The source of our knowledge of this
law is, first, the modern legal document; secondly, direct observation of life,
of commerce, of customs and usages and of all associations
o Methodological Syncretism: the tendency in legal studies to incorporate
writings from other disciplines (e.g. sociology, phycology, etc)
o One cannot understand law if one doesn’t examine it in its social context and
study both its causes and its effects
o Kelsen: The subject-matter of the legal science (jurisprudence) is ‘law’ and
law is a matter of norms, a matter of ought-propositions
o Socio-phycological questions, such as ‘why do people obey the laws?’ ‘why do
people commit offences?’, ‘how do politicians affect the enactment of
statutes?’, ‘what impact has the enactment of a statute or the issuance of a
judicial decision on this field of human activity?’ do not belong to the subject-
matter of jurisprudence
o Jurisprudence is limited to the cognition and description of norms and their
relations
o But Kelsen doesn’t deny the importance of these questions
o Austin
 All laws emanate from the sovereign. The sovereign is a common and
determinate body, which is habitually obeyed by the bulk of the
society and is not, itself, in a habit of obedience to a common and
determinate superior
 This approach leads to a sociological investigation purporting to
identify this body which is obeyed and does not obey
o Hart
 The rules of the legal system are validated by the Rule of Recognition.
The rule of recognition exists in virtue of the (social) fact that some
people (public officials) use this rule regularly to identify the rules of
the legal system and accept it as a critical common standard for their
behavior
 This approach leads to a sociological investigation of the people’s
patterns of behavior and practical attitudes they hold
o Kelsen
 The norms of the legal system are validated by a valid Basic Norm
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 The validity of the Basic Norm is presupposed as a matter of
theoretical necessity
 This approach renders sociological investigations otiose
 Kelsen resists the reduction of the normative to facts
 The question of validity
o Kelsen: The statement that a norm is valid expresses the idea that one
‘ought’ to act in accordance with the norm
 Thus, it is intelligible to state that the Basic Norm is valid. For it
expresses the idea that ‘one ought to obey the historically first
constitution…’
o Hart: The statement that a rule is valid does not express the idea that one
ought to obey the rule. It is only a statement that the rule ‘satisfies all the
criteria provided by the rule of recognition’ and thus is part of the legal
system
 Thus, it makes no sense to say that the rule of recognition is valid or
invalid; it is simply followed and accepted by public officials
 The question of obligation in law
o Kelsen: The fact that a legal norm is valid makes it the case that one has an
obligation (ought) to behave in a certain way, to comply with the norm
o Hart: The fact that people in a society use a legal rule as a guide to their
conduct and accept it as a public common standard for criticism makes it the
case that one has an obligation (ought) to behave in a certain way, to comply
with the rule
 Effectiveness
o How can we know that a certain social order is a legal system so that we
know whether a basic norm is presupposed?
 Kelsen: We presuppose the basic norm only if there exists a coercive
social order which is by and large effective
 But the effectiveness of a social order, on the basis of which we
identify a Basic Norm, rests upon sociological, political and moral
factors that are excluded from the ‘pure’ theory
 Penner & Melissaris: The relation of the Grundnorm to the criterion of
effectiveness is simply the point at which Kelsen’s hypothetical
hierarchy of norms attaches to reality
o How can we know that a certain social order is a legal system in the case of a
revolutionary transition?
 The outcome of a revolutionary change is that the norms of the old
social order lose their efficacy, which is a condition for their legal
validity. The new coercive social order established, insofar as it is
efficient, will lead to a change of the Basic Norm, which will validate a
revised chain of norms.
 1st problem. What exactly is meant by effectiveness? Does is suffice
that the judiciary implements the decrees of the revolutionary
regime?
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 2nd problem. If effectiveness is the sole criterion for a social order to
be legal, then Kelsen’s theory cannot conceive of an unlawful coercive
social regime. Furthermore, if a tyrant establishes an effective
coercive order, then Kelsen’s approach entails that the commands of
the tyrant ought to be obeyed
Avoiding the drift towards Natural Law

 Natural Law theory: The validity of positive legal rules depends on the
correspondence of their content with the content of the natural law
 It could be that we need to presuppose is the validity of some moral norms that
would validate legal rules (i.e. that would make it the case that legal rules give rise to
genuine ‘oughts’/obligation)
 Kelsen: If the history of human thought proves anything, it is the futility to attempt
to establish, in the way of rational considerations, an absolutely correct standard of
human behavior
 There are no absolute moral norms. Moral norms are unprovable and thus not
objective. There is not even a common ground between subjective moral norms.
Therefore, moral norms cannot validate the objective ‘oughts’ that legal rules
generate.
 But moral relativism is considered nowadays a weak approach in moral philosophy.
 The Contingent Connection Thesis: There is no necessary connection between
(objective) legal norms and (subjective) moral norms
 The Sources Thesis: Law is based on social facts identifiable without any reference to
moral argument
o The question of whether a legal rule is valid depends on whether it was
posited in the appropriate way (i.e. whether it can be traces to an authorized
social source) and whether it remains effective

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Jurisprudence Lecture 9: Modern Positivism: Kelsen'S Pure Theory of Law 2

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JURISPRUDENCE LECTURE 9

MODERN POSITIVISM: KELSEN’S PURE THEORY OF LAW 2

Law and Coercion

The purity of the theory

Avoiding the drift towards Natural Law

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