Introduction
Refutation of Hans Kelsen's concept of law, by Drieu Godefridi. Refounder of the theory of law in the modern era, Hans Kelsen (1881-1973) wanted to build a 'pure' theory of law. In the sense of: free from political and moral considerations. In the course of an academic career that took him from Austria to the University of California at Berkeley, via Germany, Kelsen marked out the theoretical reflection on law with some of his most stimulating and accomplished monuments. His two most 'purely' theoretical works are the seminal Queen Rechtslehrepublished in 1934, and Allgemeine Theorie der Normenpublished posthumously in 1979. As a series of extremely thorough and intellectually fruitful infrapaginal notes to the Rechtslehre.
By its rigour and originality, by the breadth of its field of study and its theoretical persistence, by its capacity to take into account and respond to most of the criticisms that were levelled at it - notably through polemics with that other legal theorist, Carl Schmitt - Hans Kelsen's work structures modern thinking on law.
Kelsen claims to give an account of the law - of all possible law - as well as a hierarchy of norms[1]. Each norm draws its validity from the respect of norms that are hierarchically superior to it. Taken singularly, the norm is considered as an act of will, more precisely the meaning of an act of will. Thus the understanding of a particular legal system, and of any legal system understood in its pure juridicality, are possible, according to Kelsen, without involving the slightest political or moral consideration. From this point of view, legal theory is pure when it is 'purged' of all political and moral considerations.[2]
Two classic critiques of Kelsen's system
Much criticism was levelled at these attempts at theoretical purity and moral virginity,[3] starting with the obligation to qualify the systems of totalitarian regimes such as Nazi Germany and the Soviet Union as legal.[4] Kelsen assumes this consequence of his vision of law.
The concept of law must account for Soviet and National Socialist law
These criticisms, which are essentially moral in nature, are fully susceptible to Kelsen's objections and miss their objective. Reflection on the law can only be conceived of as removed from the empire of moral philosophy. When reflection on the law proceeds from a particular conception of justice, it is no more than a derivation, in legal technique, of this conception and finds itself absorbed by moral philosophy. All too often, reflection on the law 'moralizes' its object in order to exclude rights that it does not like. The same tendency to gerrymandering The moral nature of the law is found in the Christian traditions,[5] liberal,[6] socialist and positivist.
What sense does it make to deny, for example, that Soviet law, which governed the behaviour of tens of millions of souls for seven decades, is law? If Soviet law is not law, since it was the only law in force on the immense Soviet territory, how can we name this set of norms that took its place? Should we consider that a country, a people, a community can persist for seven decades without law?
The problem of the Grundnorm
Another recurring criticism of the Kelsene system is that a legal system cannot be self-sustaining in its validity. It must of necessity be based on something other than a norm. In the sense that the ultimate norm - the tip of the normative pyramid or GrundnormIn the case of the European Union, a standard, whether real or fictitious, cannot, by definition, derive its validity from a standard that is superior to it.[7] This criticism, of a logical nature, is more effective than the previous one. But it does not seem decisive, in that the whole edifice would remain valid, even if its foundation were exogenous.[8][9]
In the latter part of the twentieth century, Profs. François Ost and Michel van de Kerchove have shown that most legal systems have strange loops that deviate from the pyramid structure.[10] When a judge clarifies the interpretation of the constitution, he or she retroacts at the top of the pyramid, because his or her interpretation is binding on all actors in the legal system. However, it is not clear that these hierarchical entanglements, which are real, refute the essentially pyramidal structure of any legal system. Strangeness only exists by reference to a structure - which is that of the pyramid. The advantage remains, once again, with Kelsen.
The problem of generality
The flaw in the Kelsenian armour lies in its concept of generality. According to Kelsen, the norm that enshrines the arbitrariness of an authority has the highest degree of legal generality.
We begin by examining Hans Kelsen's definition of normative generality (Chapter 1), formulating our thesis. Then we examine the question of whether individual norms can be derived from general norms (Chapter 2). This will allow us to take into account one of Kelsen's objections to the proposed concept of generality.
Chapter 1: Thesis
One must behave as prescribed by a given authority (...) represents the highest degree of generality of a norm. Hans Kelsen, Allgemeine Theorie der Normen[11]
Although reflection on law goes back to the Greeks - Aristotle devotes some surprisingly topical reflections to it in the Policies - Hans Kelsen is credited with reviving legal thinking in the 20th century.e century. In favour of a theory that was intended to be 'pure' of ideology.
The norm as the meaning of an act of will
Any norm, according to Kelsen, is either general or individual.[12] The norm is, in Kelsen's terms, the meaning of an act of will. Norm and will are inextricably linked. The norm is not just a statement, such as a scientific proposition or a statement of fact, it is the expression of a will. More precisely, the meaning - i.e. the content, which becomes autonomous from its sender at the moment of utterance - of an act of will. The norm is a must-be (in German, Sollen).
In one of the notes to his General theory of normsIn his posthumously published work, which contains the last state of his thought, Kelsen offers a table of the different degrees of normative generality. From the individual norm in the strict sense - the most particular, concrete and immediate - to the most general norm.
"A norm is individual when the personal and material elements of behaviour are posited as mandatory in concretoAll other norms are general norms, but the general character may have different degrees: the norms of a father A to a son B, for example: "Close that window". All other norms are general norms, but the general character may have different degrees:
- The father orders his sons B, C, D: "Now go to school. Here we have a certain number of individually determined addressees in concretoA certain number of identical unique behaviours.
- A non-commissioned officer addresses the following command to twenty soldiers lined up in a row: "Let three men come out of the ranks! We are dealing here with a determined number of individually undetermined, and therefore determined, addressers of the norm in abstractothree specific behaviours in concreto identical.
- The Pope commands all Catholics to address a specific prayer to God on a specific day at a specific time. This is an indefinite but limited number of addressees of the determined norm in abstractoan indeterminate but limited number of specific behaviours in concreto identical.
- All men must keep the promises they have made: this is an indefinite and unlimited number of specific addressees in abstractoand an indeterminate and unlimited number of determined behaviours in abstracto identical.
- All men must behave as Jesus tells them to. Only the authority that sets the standard is determined in concretothe material element of the norms to be observed is not determined at all: the personal element is an indeterminate, but limited number of determined subjects in abstracto.
- One must behave as prescribed by a given authority: only the authority that sets the standard is determined in abstracto. The material element of the norms to be followed is absolutely not determined; the personal element is an indeterminate and unlimited number of determined subjects in abstracto. Standard 6 represents the highest level of generality of a standard.[13]
Demarcation criterion
The definition of a demarcation criterion between general and individual norms occupies legal theorists. This is not inevitable. One might consider that some norms are clearly general, others unquestionably individual. And that there is a residual category of norms which, because of their abstract structure amalgamated with concrete elements, do not deserve to be called general or individual. Such norms would be in the limbo of an in-between assumed as such.
Any norm that is not individual is general (Kelsen)
It should be noted that legal practice deals with a mass of norms whose effectiveness does not require them to be described as general or individual. The fact that they are valid norms is sufficient to ensure their effectiveness. However, one immediately perceives what would be reflexively unsatisfactory about this option. If a definition of normative generality is proposed, it must make it possible to create, at least by default, the category of individual norms. Any norm that is not general is individual. As we have seen, Kelsen adopts this technique, reversing the terms. Any norm that is not individual is general. This is formally correct and indeed allows us to consider all norms in the mode of a summa divisio.
The three criteria traditionally used by legal theorists to distinguish between general and individual norms are the generality of recipientsthe abstraction of the situation and the command as such, the permanence of the standard.[14]
Supreme generality according to Kelsen
Thus Kelsen considers that the fourth highest degree of generality corresponds to norms of the type "All men must keep the promises they have made".[15] Because there is an indeterminate and unlimited number of defined recipients in abstractoand an indeterminate and unlimited number of defined behaviours in abstracto. "All men must behave as Jesus commanded" defines the fifth level of generality, before the supreme stage of the sixth level.[16]
The claim of Kelsen's table to account for any norm, in the mode of the summa divisioThis is not a matter of formal dispute. In fact, it is the whole picture that is indisputable. In that its internal coherence is beyond reproach and fits rationally into the reflection that unfolds, like a perfectly mastered arabesque, the General theory of norms.
Review
It remains to be seen whether the concept of normative generality forged by Kelsen is the most appropriate one for its purpose. Let us start, for the purposes of this paper, with the individual norm "Close the window", from father A to son B. And the fifth degree of generality, which we adapt as follows: "All children should behave as their father prescribes." (We leave out the sixth level, to avoid difficulties with the status of this norm, which Kelsen himself calls a fiction):
- N1: "Close the window" is an individual standard;
- N2: "All children must behave as their fathers prescribe" is, according to Kelsen, a general norm.
The semantic and sender's point of view
If we allow for the indeterminacy of the addressees, the abstraction of the situation and the command, there is no doubt that N1 and N2 occupy, indeed, two opposite positions in the field of normative generality. This is true from a semantic point of view. The individual order from A to B (N1) is radically different from N2, which is a general norm both in terms of the number and indeterminacy of its addressees, the abstraction of the situations it addresses and the indeterminacy of the commands that will follow it.
This is also true from the point of view of the issuer of the norm. How can we deny that there is a world of difference, from the point of view of the issuer, between an order issued here and now, and a norm as general and indeterminate as N2, which is the mark of a legislator?
This double point of view, semantic and of the sender, is indeed the one that Kelsen claims throughout his theory. However, what about the point of view of the addressee of the norm? How is this point of view relevant? We will try to answer these two questions, which are apparently subsidiary but which open up a world of perspectives.
The point of view of the addressee of the standard
From the point of view of the addressee of the norm, there are no general binding norms, only individual norms. What is meant is that, from the point of view of the addressee of the norms, normative constraint does not is updated From the injunction of the police officer posted at the centre of a crossroads to the judgement of a court, from the point of view of effective normative constraint, the legal subject knows only individual norms. From the injunction of the police officer posted at the centre of a crossroads to the judgement of a court, from the point of view of effective normative constraint, the subject of law knows only individual norms.[17]
This thesis may be surprising. First, it postulates that a normative order is an order of constraint. This is the thesis of Kelsen,[18] It is also ours, so we will not discuss it here.
It is only from the point of view of the normative constraint - to put it another way, of the effective application of the norm - and from the point of view of the legal subject, that there are only individual norms.
"Close the window" is an individual norm which applies, in Kelsen's example, to son B. This individual, and strict, character of N1 is beyond dispute. But what about N2, "All children must behave as their father prescribes"? Let us assume that N2 fits into the same normative order as N1. From the point of view of son B, what is the difference between N1 and N2? It is great: the norm N1 applies to him here and now. Whereas N2 does not apply to him here and now.[19] From his point of view, i.e. from the point of view of the norms that effectively constrain his behaviour here and now, N2 is a non-entity. At most, it is the vague promise of possible future individual norms, the content of which remains completely undetermined.
In reality, N2, like any norm that is not individual in the strict sense of N1, is a collection of potential individual norms. N2 does not constrain any behaviour by itself (in the mode of constraint); in order to effectively constrain behaviour in the mode of constraint, N2 will have to be actualised in norms of type N1.
Discussion
Why take into account the point of view of the addressee of the norm? Why not limit ourselves to the dual point of view of semantics and of the issuer, as favoured by Kelsen? There is certainly a discretionary element in taking into account, or not, the point of view of the addressee.
But apart from the fact that this consideration does not take anything away from the reflection, it must be stressed that the purpose of the norm is to standardise. It is precisely from this point of view that the essence of the normative fact lies,[20] that the recipient's point of view must be taken into account. Not to do so impoverishes, without any rational reason - that consideration devoid of any moral notion - the reflection on the norm.[21]
If, as we argue, from the point of view of the addressee and the normative constraint, there are only individual norms, then the reflection on the concept of generality must be reopened. Indeed, from the point of view of the addressee and the normative constraint, there are only individual norms in Kelsen's picture, no standard, whatever its level of generality, which does not have to be actualised by individual standards. (Except for N1, which is already an individual norm in the strict and actual sense).
This raises the question of whether taking into account this view of the addressee makes the demarcation criterion irrelevant.
If there really are only individual norms from the proposed point of view (recipient - present constraint), how can we imagine any demarcation criteria? Doesn't this amount to distinguishing between current and deferred individual norms?
All the more so since, from the point of view of the recipient, there is strictly no difference between an individual norm and another individual norm at the time of its actualisation. So what does this mean?
Two generalities
In truth, from the proposed point of view, the difference does not lie in the individual norm, but in the nature of the general standard from which this individual standard is derived. From the point of view of the addressee, there are, in fact, two radically distinct and irremediably heterogeneous types of general norms - we are definitely leaving Kelsen's picture. The general norm whose constraint content is predictable, and therefore avoidable, and the general norm whose constraint content is unpredictable, and therefore inevitable.[22]
The importance of this distinction cannot be overstated; it is historically seminal to Western public law.
Psephisma and nomos
At the end of the war against Sparta, Athens, defeated, gave itself a regime that it wanted to be aristocratic and legalistic on the model of Sparta, which immediately degenerated into arbitrary tyranny. This is the regime of the so-called Thirty Tyrants, who put to death, at their whim, a significant fraction of the Athenian population. The tyrants were defeated and democracy was restored. However, Athens remembers that it was under the regime of radical, and therefore arbitrary, democracy,[23] that it subjugated the Aegean basin, then declared and lost the war against Sparta. Under the archonship of Euclid, at the turn of the Ve and IVe In the 16th century BC, reforms were implemented to curb democratic arbitrariness.
These reforms "constitutionalise " the existing law, putting it beyond the reach of ordinary majorities. And they create mechanisms of normative control, some of which evoke, prefigure and sometimes identify with very 'modern' controls of the constitutionality of laws and the legality of regulations.
The whole of this sophisticated institutional edifice is based on a distinction, now imperative, between the psephismaor decree, which is an individual standard, and the nomosThe law is a general norm. No decree is valid that does not respect the laws in force. A decree that does not comply with the laws is of no effect.
From the point of view of the addressee, generality is opposed to arbitrariness
This edifice only makes sense if one defines generality as opposed to arbitrariness, which the Athenians expressly do.[24] By affirming the necessary conformity of the psephisma individual to nomos In general, Athens invented Western public law.
Just as Euclid's reforms were intended to protect the Athenian citizen from the whims of the moment, even if they were in the majority, the whole of the so-called constitutionalist tradition is based on the requirement to remove the subject of law from the whim of the sovereign. Rule of law, RechtsstaatThis means that power must only be exercised in accordance with rules or general norms that pre-exist its intervention, particularly in the criminal field.
To which Kelsen would no doubt reply that this historical evocation is very sympathetic, perhaps true, but that his task as a theorist is not to give an account of this or that political project - which is what constitutionalism is. For him, it is a matter of developing a science of norms, which is precisely as free as possible of ideological dross.
The limits of purity in the study of law
However, this methodical rejection of the grounds of generality in the history of law shows that the desire to 'purify' theory has its limits, particularly in the field of the humanities (to which the theory of law and norms belongs).
For it is one thing to argue that a pure theory of law must set aside the constitutionalist view[25] It is another to deny the relevance of taking into account the point of view of the addressee of the norm, on the sole ground - we do not see any other in the course of Kels's theory - that the norm is not a legal instrument. It is another to deny the relevance of taking into account the point of view of the addressee of the norm, on the sole ground - and one does not see any other in the course of Kelsen's theory - that it constitutes the cornerstone of constitutionalist theory.
A concept of law that denies the perspective of the recipient is meaningless
On the contrary, we argue that no theory of law should ignore the perspective of the addressee of the norm.[26]
This is tantamount to saying that Kelsen's (semantic-emitter) view is not wrong,[27] but ideological. In that it proceeds from a thirst for and illusion of purity which leads to a misunderstanding of an essential aspect of its purpose. One cannot treat the norm as a chemical substance, or a mathematical object (i.e.The norm is a human reality, whose knowledge must take into account the point of view of its addressee.) The norm is a human reality, the knowledge of which must take into account the point of view of its addressee, because it is the object of the norm to standardise his behaviour.
To consider law without taking into account the point of view of the addressee of the norm is like considering a tool without taking into account its usefulness. It is, very strictly, a negation of its object of study.
If the point of view of the addressee of the norm is taken into account, Kelsen's normative picture must be relegated. Indeed, Kelsen's last two (highest) degrees of generality do not designate general norms from the point of view of their addressees - predictable and therefore avoidable - but their antithesis. That is to say, collections of potential individual norms that are perfectly unpredictable and therefore inevitable. These norms are arbitraryThe only thing they do is to formally enshrine the arbitrariness of an authority.[28]
Degrees in generality?
What about the idea of degrees of generality? From the point of view of the addressee, the gradation of generality seems both unnecessary and artificial. A standard - i.e.It is either predictable or not. Whether or not the number of recipients is limited. And whether or not the definition of its application mechanism includes concrete elements. What matters is the predictability, and therefore the avoidability, of the constraint attached to it.[29]
Proposed definition of normative generality
Recognising the objective importance of the point of view of the addressee of the norm, we define as general the norm whose actualisation can be avoided by the subject of law by means of his own will.[30] [31]
Whether a standard is formally The question of whether the law is individual or general - Kelsen's table - is a semantic consideration which, from the point of view of legal theory, is incidental.[32] Thus the Kelsenian definition of the individual norm seems formally valid. But how can we not be surprised that a judgment is qualified as a general standardAccording to the first Kelsenian degree of generality - norm 2 of his table - on the sole ground that there are at least two persons in the claim or defence[33]?
A police officer's injunction at a crossroads can be considered an individual norm when it is addressed to the driver of a vehicle, but it is not. general standardWhat is the definition of individuality, if there are two people in the vehicle? These questions show the artificiality and nominalism of the semantic debate, since everything depends on the more or less restrictive nature of the definition of individuality that is used.[34]
Kelsen's purely semantic definition is not wrong, it is artificial, 'pure' of the essence of the reality under consideration - the norming of behaviour. In the end, this concept is of great purity indeed, but this purity is that of the ideology that brutalizes its object of study.
Role and status of generality in the Kelsene system
Now, this concept is the sun of the Kelsenian system. The concept of generality so perfectly defined by the General theory The Kelsene concept of generality is perfectly consistent and continuous from the beginning to the end. The Kelsenian concept of generality is perfectly consistent and continuous since the Pure theory until the General theory.
This is best illustrated by the Grundnorm which, in its ultimate version - the last edition of the pure and general theory - is a fiction saying: "You must behave as the legal system commands" - which corresponds word for word to the highest degree of generality defined by the General theory.
Kelsen's identification of generality and arbitrariness is the conceptual substratum and structural apotheosis of his theoretical system.
Let us examine an objection in Kelsen's theory to the above. The idea that it is, according to Kelsen, impossible to deduce an individual norm from a general norm. If this is true, then the opposition of generality and arbitrariness is meaningless.
Refutation of Hans Kelsen's concept of law: continued.
Chapter 2. Objection
In the General theory of normsKelsen argues that it is intellectually - logically - impossible to derive an individual norm from a general norm.[35]
This surprising thesis, if true, would deprive of validity the distinction between arbitrariness and generality, which rests precisely on the possibility of foreseeing which norms of individual constraint are likely to be taken on the basis of general norms (general from the point of view of the addressee-constraint).
to be and should be
Kelsen was concerned throughout his work with the distinction between being and ought-to-be.[36] Rightly so, because it has been accepted since David Hume that being and ought-to-be are two distinct logical registers and that it is a mistake in reasoning to claim to deduce the norm from being. Or, to put it another way, to claim to conclude from being to ought-to-be.[37]
Thus Kelsen explains that the judgment, which is an individual norm, cannot be deduced from the law (general norm) and the facts of the case.[38]
If we imagine the judge's reasoning as a syllogism - whose major is the law, whose minor is the facts of the case, and whose conclusion is the individual norm of the judgment - it appears, according to Kelsen, that it is logically impossible to deduce the individual norm from premises that certainly include a norm (the same logical register), but which also include being (a logically distinct register).
More fundamentally, and moving away from the act of judging in the strict sense, Kelsen asserts the impossibility of deducing an individual norm from a general norm,[39] regardless of the facts of the case.
Indeed, he explains, the individual norm is the meaning of an act of will. But Kelsen argues that this normative act of will, while it may be informed and inspired by various factors - such as the law - is not the same as the act of will. can only be born of itselfIt is not derived, or deduced, from another act of will (that of the legislator, laying down the general norm).[40]
Obviously, this thesis is based on a particular conception of the will. Kelsen considers that the legislator, while having willed the general norm, cannot will its application to a particular case, because "one cannot will what one does not know".[41].
"It cannot be admitted that the legislator wants Dupuis, who caused Lelièvre's death by a gunshot, to be imprisoned for life, because it cannot be admitted that the legislator knows that Dupuis will cause Lelièvre's death by a gunshot. One can only want what one knows.[42]
This restrictive notion of the will is at the heart of Kelsen's denial of the possibility of deducing the individual norm from the judgment of the general norm of the law. It must be shown to be wrong if the deducibility of the individual norm from the general norm is to be supported.
What does the legislator want?
Let us begin by noting that Kelsen is, in a sense, right: by definition, the legislator is not in a position to know the facts of a particular case, a fortiori the facts of any of the cases to which its law will apply.
From this point of view, in fact, the legislature is not in a position to want Dupuis to be sentenced to life imprisonment for the murder of Lelièvre on Tuesday 13 January on the island of Saint-Louis. And it is to make up for this lack of will on the part of the legislator, which is not expressed in a specific case, that another will intervenes, that of the judge, to "say the law" in the case in question.
However, Kelsen's reasoning is problematic. No one has ever argued that the legislator was in a position to know about Lelièvre and Dupuis, or to want Dupuis to be convicted.
Napoleon, who personally presided over the work that gave rise to the civilist synthesis that bears his name, is certainly not in a position to 'want' our contemporaries to pay themselves such and such a sum, nor to want anything from his sarcophagus in the Invalides. The very statement of this hypothesis shows its absurdity.[43]
But what kind of will are we talking about? Are we condemned to the hypothesis of an omniscient legislator, in the form of Laplace's demon?[44] so that the proposition that "the law wants Dupuis convicted of the murder on Tuesday in Paris, etc." makes sense?
What, in short, does the legislator want? That Dupuis be condemned? Does the legislator want particular cases? Is it not obvious that the legislature's intention concerns only and is exhausted in the legally relevant characteristics of the situations that fall within the scope of its norm? Moreover, it would make little sense to assume that the legislature would only want to not the application of its standard to cases within its scope.
Do we only want the present?
It is as if, for Kelsen, there is only a will in the present tense. Apart from the fact that this would render meaningless the very fact of positing a general norm - a norm that is not only the result of the will, but also the result of the will itself. even in the Kelsenian sense - which, by hypothesis, concerns the future, this restrictive notion of the will leads to a series of logical consequences that are difficult to sustain.
100 to Sylvie, the enforcement of this judgement is not within his competence.
If Marc fails to pay, measures to enforce the judgment against him will be taken: seizure of his property by bailiff, forced sale, etc. These measures are all part of the enforcement process. These measures are all news individual restraint standards separate of the individual standard of judgement.
Now, while the judge may well have wanted Marc to pay Sylvie 100, he certainly could not have "known" or "known", as Kelsen says, that such and such a piece of furniture belonging to Marc would be seized at such and such a place at such and such a time, sold at such and such a place at such and such a time, etc.
Does this mean that the judge not only did not want, but could not have wanted, his sentence to be carried out? All this makes little sense and seems like a game of language consisting in upholding, against all odds, the consequences of an arbitrarily restrictive definition of the will.[45] [46]
The fact remains that the general norm does not apply on its own. It can only be actualised through the intermediary of an individual norm, which is in fact the meaning of the act of another will. That of the judge. Having rehabilitated the will of the legislator, one should not deny that of the judge. The norm of the judgement is the embodiment of two wills, one deferred, because it is general and abstract - that of the legislator - the other immediate: that of the judge.
But then, how can we understand the relationship between the judge's act of will, of which the individual norm is the meaning, and the legislator's act of will[47]whose general standard is meaning?
Cognitive and normative (volitional) aspects of the act of judging
By distinguishing the two aspects of the function of judging: the cognitive aspect - knowing the facts, identifying the applicable law - and the normative aspect.
On the cognitive side, which is the essential part of his function, if only from the point of view of the time and intellectual resources he devotes to it, the judge takes note of the facts of the case. He translates them into the categories of the law, searches for and identifies the legally relevant standards, and finally applies these standards to the facts. Then, and only then, does the judge formulate the individual standard of the judgment: "For these reasons, sentence Marc to pay 100 euros to Sylvie".[48]
The formulation of the individual standard, even if it embodies the act of judging, is only a subordinate aspect of the function to judge.
The essential function of judging lies in the cognitive work of the judge. Now, it is precisely at the cognitive level that the derivation of the individual norm takes place. The fact that the law is a general norm, a "must-be", does not prevent the judge from treating it, for the purposes of his reasoning, as a simple statement, a finding, a factual judgement:
"The law requires that a murderer be sentenced to imprisonment" is a statement (which is not a duty to be)
"Dupuis murdered Lelièvre" is a statement (which is not a must-be)
"The law requires that Dupuis be sentenced to imprisonment" is a statement (not a must-be)
There is no standard as such in this reasoning, which is a succession of observations and statements, the unfolding of which takes place in the mind of the judge. The conclusion of this reasoning is not an individual norm in the normative sense[49]. It is not not the judgment. It will only become the individual standard of judgement when the judge, believing that his work of knowledge is complete, performs the act of judging in the strict sense: "On these grounds," etc.
Kelsen distinguishes between the two aspects, cognitive and normative, of the function of judging.[50] He goes so far as to concede that an individual norm can be 'implicit'.[51] and "contained".[52] in a general standard. But he rejects the idea that the individual norm is deduced from the general norm, or from the cognitive aspect of the judging function. On the grounds that one cannot deduce a duty-to-be from a being, and that a duty-to-be can only be founded in itself.
"An act of thought can be linked to an act of will, and as a general rule it is insofar as if someone wants something, he must necessarily know what he wants. But this act of thought is prior to the act of will, is not identical with it nor implicit in it."[53]
Recognition as an individual standard derived from a general standard
If the standard of judgment is not deduced from the law, where does it come from? According to Kelsen, "to lay down the individual legal norm (...) presupposes the recognition of the general standard to be applied by the court which has jurisdiction to apply it.[54]
The recognitionThis is the reason for the possible application of the general norm to the individual case.[55] In other words, Kelsen distinguishes three aspects: the finding of fact and law, the recognition of the applicable law, and the judgment. Recognition is entirely a matter of the judge's will, and therefore of the judgment, of which he is the premise in will.
It is questionable whether this criterion, this 'gateway' to the recognition of the law by the court, nevertheless changes anything.
Either the recognition is the result of the court's caprice - which chose to recognise as it could have chosen not to recognise the general norm. Is it conceivable that a normative order is entirely dependent on caprice? each time repeatedof all its courts[56]?
Either this recognition is itself the result of an individual standard - "we must apply the law to the case" - which the court[57] deduced, in his case, from the general norm "laws must be applied" or its equivalent (which would be enshrined, for example, in the constitution of the normative order in question).
This is the very type of deduction which Kelsen contests and which, moreover, only adds a step to the reasoning, the usefulness of which is not apparent.[58]
The problem is not unlike Descartes' pineal gland. Having posed in the Metaphysical meditations The absolute heterogeneity of mind and matter, Descartes had to explain the interaction of these two realities. Pressed to clarify this point, the crucial nature of which cannot be denied, Descartes ended up formulating, in his correspondence, the hypothesis of the pineal gland, which was supposed to carry out the interaction between the body and the mind. However, this answer solves nothing, in that it does not explain the interaction. Either the pineal gland is purely material, which explains nothing, or the interaction takes place within it, and everything remains to be explained.
Having shown that the recognition hypothesis merely shifts the problem without changing its nature, it remains for us to explain why the court indeed decides to apply the law, rather than its fantasy.
The Schmittian moment of the act of judging
At the end of the intellectual work of deducing the individual norm from the general norm - which Kelsen contests, and which we support - the judge could choose to formulate another individual norm, or even to abandon the intellectual work from the outset in order to apply his or her whim.
For there is indeed a decisional moment, Schmittian so to speak, or at least Sartrean,[59] in the formulation of the individual norm. On this point, Kelsen is right, indeed it is a truism.
Why do judges and courts apply the law - starting with their legal obligation to apply the law - instead of substituting their whim? When formulating their judgement, nothing and no one can stop them from copying a passage from the Bible or Albert Camus or singing the Traviata instead of 'saying the law'.
This question is only one aspect of the broader issue: why does the recipient of a standard comply with it? Because the norm is part of an order of constraint. In other words, the recipient of a norm respects it out of fear of coercion. This coercion has various facets (fine, prison, reprimand, damages, loss of a right, damage to reputation, contempt, fear of reversal on appeal, disciplinary sanction, etc.). On this point, we must stop the investigation, conceding the general and psychological nature of the[60] of its term.
In any case, we have established that an individual norm, in the form of a statement, is deducible from a general norm, considered as a statement, and that no order of law is conceivable if this conceptual truth is not recognised.
The Kelsenian concept of generality is very consistent from the pure theory to the general theory. The deducibility of NI from NG is, on the other hand, rejected in the TG as strongly as it was affirmed in the TP. Kelsen's evolution could not have been more radical. Everything he writes in the TP about the work of the judge we can take over as it stands. He clearly describes the deduction of the individual norm by the judge from the general norm (even if he does not sufficiently distinguish in the TP between the cognitive and normative aspects of the function of judging). The question to be examined is not this development as such; it would be absurd to reproach Kelsen with it. The question is which of these two theses is more compatible with the Kelsenian system.
There was nothing in his definition of generality that required Kelsen to support the non-deductibility of the individual norm. Even in its highest sense, one must deduce from the Kelsenian general norm - taken as a statement - at least an individual norm of empowerment. According to the N-norm, it is up to me, the judge, any authority, to issue an individual norm.
To conclude: Refutation of Hans Kelsen's concept of law
"Any content can be legal.[61] Kelsen has been widely criticized for this sentence from the Pure legal theoryThis is because it does not allow for the 'juridicisation' of any legal content, be it National Socialist or Stalinist. However, this criticism, which has been repeated a thousand times[62] and deemed to identify the 'weakness' of legal positivism, misses the point.
Firstly, because legal theory does not have to worry - on this point, our agreement with Kelsen is perfect - about the value moral of the norms it accounts for. Secondly, because the weakness of Kelsen's theory is not a moral one, but rather a fundamental one. formal (conceptual). And that, far from being confined to the problematic 'point' of the foundation in validity of the GrundnormIt permeates the entire system.
The negation of the subject's point of view is the source of the problem
By placing under the heading of "general standards" all standards except those that are individual in the most restrictive sense defined by the General theory of norms - "You do that!" - Kelsen shows himself to be consistent with the will claimed in the Pure legal theory to take leave of what he calls the "subjectivist attitude" on law. This consists in thinking of law through its effects on the subjects of law. This subjectivist view, which he presents as that of the Roman jurisconsults, capitalism and lawyers, is, according to Kelsen, ideological and must be dissolved by the pure theory of law.
However, this determination to root out the subjectivist view of law leads Kelsen to define the general norm by taking into account only the view of the sender of the norm, eradicating that of its recipient. Any norm that is not strictly individual is general, including the norm that merely enshrines the arbitrariness of an authority. Better still: the most perfectly arbitrary standard defined, according to Kelsenthe most perfectly general standard.
This paradox, which can be described more accurately as a conceptual aberration, ignores the objective difference (from the point of view of the science of norms) between a norm whose binding actualisation can be avoided by its recipient - like an electrified fence - and a norm whose binding actualisation cannot be avoided. Like a cattle prod which the bearer uses as he pleases.
This objective difference in nature between two types of norms can certainly be dismissed out of hand without this decision being wrong as such. But in the field of a discipline, legal theory, whose very purpose - Kelsen dixit - is the study of norms, of norming, as aorder of human conductThe lack of knowledge of the law is without reason.[63]
This negation is subversive of the whole Kelsene system
We have seen that Kelsen himself regularly used the term 'general norm' in a sense that semantically excludes his definition of generality.
More fundamentally, the reduction of generality to arbitrariness is subversive of the Kelsenian theoretical edifice, up to and including the concepts of hierarchy[64] and pyramid[65] standards.
A pyramid of norms where each level would simply validate any expression of will of the lower level is easily conceivable.[66] The constitution would simply establish as law whatever the legislator designates as such, the law would do the same with the executive, etc.
In such a way that we would have both the most general normative pyramid, and the most perfectly arbitrary.
However, this "general" purity is necessarily exclusive of all The idea of hierarchy, pyramid or any other structure. For, if the authority finally instituted, at the base of the pyramid, can do of its will - by hypothesis, any the norm in force, which will prevent him from revising, at his whim and at any time, the distribution of roles (levels) within the pyramid[67]?
The identification of generality with arbitrariness is exclusive of the idea of legal order.
Knowing that the same is true of each of the floors of the pyramid, there is not and cannot be a pyramid or any order when generality is identified with arbitrariness. Only an improbable layering of pure wills that will be set in circles, diverse forms or open wars according to the moods of each. In a crazy saraband that, by hypothesis, nothing and nobody will be able to transcend in law and therefore stop. The identification of generality with arbitrariness is exclusive of the idea of legal order.
If the most arbitrary norm is the most general norm, the concepts of pyramid and hierarchy of norms are meaningless - not problematic: non-existent. And the law is reduced to sensu stricto to the figure of a despot - in the formal, non-moral sense of living law - whose caprice permanently pulverises any idea of hierarchy. In such a way that the Kelsenian 'pyramid', which is supposed to account for the purest structure of law, heats up a state of nature within it. This state of nature will pulverise the pyramid as soon as we move from theory to practice. praxis.
Kelsen's theory of judgment is a theory of pure will
Kelsen's assertion that it is impossible to deduce an individual norm from a general norm - supported in the TGN against the TPD - also proceeds from his very particular - not false, but as amputated, and on purely ideological grounds - definition of the will.
On the grounds that the author of the general norm could not have "intended" that a particular person be sentenced in concretoand from the fact that a duty-to-be cannot be deduced from what is (true), Kelsen deduces (sic) that no individual standard can be inferred of a general standard.
The individual norm, if one follows Kelsen, is born exclusively and entirely in the dark well of the willingness of the authority that enunciates it. Drawing its judgement not from the law, but from its own will - exclusively The Kelsenian judge is a demiurge, an electron free of any attachment, be it legal, a pure and perfect will. Kelsen's theory of judgment is a theory of pure will.
We have shown that this theory is based on an erroneous axiomatic, because a norm can be considered as a statement (which is recognized by Kelsen, including in the General theory)[68]. Andas statedIn the most basic sense that must be conceded if the word deduce is to have any meaning, an individual norm is fully deducible from a general norm. This is the work that judges and courts have been doing since time immemorial, before carrying out the actual act of judging, which consists in transmuting the statement[69] deduced as a standard: "Not these reasons, let us judge.
If the individual norm of judgment is always, everywhere and in its entirety - by its very nature - alien to general law, then there is no law, only a pale cloud of inert words dotted with black holes - the judges! - stirring and crushing the very idea of law.
The system of the father of modern legal positivism is not 'problematic' or 'morally questionable': it is wrong.
In a nutshell:
- Kelsen identifies the highest degree of normative generality with arbitrariness;
- This identification, which is not wrong in itself, does violence to the object of legal science as defined by Kelsen;
- Kelsen constantly uses the concept of normative generality in a sense exclusive of his own definition, both in the PDT and the TGN;
- The Kelsenian identification of generality with arbitrariness is exclusive of the notion of legal order as defined by Kelsen, in each of its components (pyramid, hierarchy): these two concepts, both structuring the Kelsenian system, cannot be reconciled;
- The Kelsenian identification of generality with arbitrariness is exclusive of any definition of legal order that does not identify it with a pure will (an embedding of pure wills), which is the very negation of the concept of 'order' in its not only legal but elementary sense. Despotism is a disorder: Bertrand de Jouvenel.
Each of these propositions is structurally refutable.
Concluding hypothesis (not demonstrated by the above): does the thirst for theoretical purity, negating its object and destroying its system, which we observe throughout Kelsen's masterly theoretical gesture, proceed from the abstractive hybris of its author, from a prior ideological vision, or both?
Drieu Godefridi, 2023, quote as: D. Godefridi, "Refutation of Hans Kelsen's concept of law", Cogito Institute, March 2023, https://www.cogitobelgium.com/refutation-du-concept-de-droit-de-hans-kelsen-par-drieu-godefridi/
Selected bibliography
Andocide, "On the Mysteries", in Speechtranslated by G. Dalmeyda, Paris, Les Belles Lettres, 2002. G. Dalmeyda, Paris, Les Belles Lettres, 2002
Aristotle, The PoliciesP. Pellegrin, trans. P. Pellegrin, Paris, Flammarion, 1993
Bentham, J. - Of Laws in GeneralLondon, The Athlone Press, 1970
Kelsen, H.
- Rechtsstaat und Staatsrecht, Österreichische Rundschauvol. XXXVI, 1913
- General theory of normsParis, PUF, 1996
- Pure legal theoryBruylant and L.G.D.J., 1999
Laplace, P.-S. - Philosophical essay on probabilityParis, Bachelier, 1814
Pauer-Studer, H. - "Kelsen's Legal Positivism and the Challenge of Nazi Law", European Philosophy of Science - Philosophy of Science in Europe and the Viennese HeritageVolume 17, Vienna Circle Institute Yearbook, 2014, 223-240
Plato, The PoliticsL. Brisson and J.-F. Pradeau, trans. L. Brisson and J.-F. Pradeau, Paris, Flammarion, 2003
Tur, R. HS - "The Alternative Character of the Legal Norm: Kelsen as Defeasibilist? Kelsen Revisited, New Essays on the Pure Theory of LawLuis D. d'Almeida, John Gardner and Leslie Green, Oxford and Portland, Hart, 2013
Yang, K. - "The Rise of Legal Positivism in Germany: a Prelude to Nazi arbitrariness? Western Australian Jurist 3, Zetzel, J.E.G. (ed.), 1999, 245-257.
[1] Hans Kelsen, Pure legal theory (hereafter, TPD), Bruylant and L.G.D.J., 1999 (Queen RechtslehreVienna, 1934 and 1960), 224s. and General theory of norms (hereafter, TGN), Paris, PUF, 1996 (1979, posthumous), 346s.
[2] TPD, 65s.
[3] In the eloquent and generic words of the American legal theorist Lon Fuller: "Jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand the other issues of jurisprudence. Kelsen, for example, excludes justice from his studies (of practical law) because it is an 'irrational ideal' and therefore 'not subject to cognition. The whole structure of his theory derives from that exclusion. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation" in "The place and uses of jurisprudence in the law school curriculum", Journal of Legal Education, 1948-1949, 1, p. 496.
[4] Jean-René Binet, Law and scientific progressParis, PUF, 2015, chapter 2; Herlinde Pauer-Studer, "Kelsen's Legal Positivism and the Challenge of Nazi Law", European Philosophy of Science - Philosophy of Science in Europe and the Viennese HeritageVolume 17, Vienna Circle Institute Yearbook2014, 223-240; Kenny Yang, 'The Rise of Legal Positivism in Germany: a Prelude to Nazi arbitrariness? The Western Australian Jurist vol 3, 2012, 245-257; Frank Haldemann, 'Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law', Juris Ratiovol. 18, No. 2, June 2005, 162-178.
[5] Christian iusnaturalism claims to discern the law in nature, insofar as the latter is the reflection of the logos divine. See. St. Thomas Aquinas, Summa Theologiæ: Human law originally sprang from nature (91.3); human law must conform to natural law by means of reason; this natural law is itself part of what Aquinas calls the "eternal law", a reflection of the logos divine in this world (Summa Theologiæ, 91.1).
[6] Liberal iusnaturalism claims to discern right, at least fundamental rights, in the nature of man as such. See for example the two treatises on civil government by John Locke, Baruch Spinoza or Samuel von Pufendorf (De iure naturae et gentium). Although positivist in his advocacy, Thomas Hobbes argues that man has rights as a man, from the state of nature (Leviathan). The same 'naturalising' claim can be found in the contemporary form of 'libertarianism', in authors such as Murray Rothbard. Friedrich Hayek offers an interesting attempt to overcome this form of iusnaturalism, which he describes as naive, by arguing that if man wants to achieve certain goals, then a certain structure of law, a composite of rule of law and separation of powers (see The Constitution of Liberty, 1960). Unlike most proponents of liberal iusnaturalism, Hayek assumes the 'Weberian' subjectivity of the values that underlie his approach.
[7] There is a vast literature discussing the Kelsenean hypothesis of GrundnormSee in particular Joseph Raz, "Kelsen's Theory of the Basic Norm", The authority of law: Essays on law and moralityClarendon Press, 1979; J. W. Harris, "When and Why Does the Grundnorm Change? " , Cambridge Law Journalvol. 29, no. 1 (April 1971), 103-133; Graham Hughes, "Validity and the Basic Norm", California Law Review59, 695, 1971; Dhananjai Shivakumar, "The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology", Yale Law Journal, 105, 1996.
[8] Kelsen partially takes this criticism into account in the second edition of his Pure theory194s., explaining that the Grundnorm is not posed but must be assumed and that therefore "the basis of its validity can no longer be questioned. (sic) This sounds like the type of thing Karl Popper described in his Logik der Forschung - published the same year as the first edition of the Queen Rechtslehrein 1934 - as a "hypothesis ad hoc The same "assumption" is discussed in the The same 'assumption' is discussed in the General theory (references below), 343f. which compounds its artificiality, characterising it as a fiction that 'contradicts reality' and is 'contradictory in itself'.
[9] Put differently, the problem lies in the absoluteness of the Kelsenean definition of legal validity. If its concept of validity is taken from absolute to relative (intrasystemic) - no system of any kind can ever account for itself by itself - the problem disappears. How could law claim self-foundation in validity when even mathematics must concede unprovable axioms?
[10] Milestones for a critical theory of lawBrussels, Publications des Facultés universitaires Saint-Louis, 1987 and From pyramid to network? For a dialectical theory of lawBrussels, Facultés universitaires Saint-Louis, 2002.
[11] Op. cit.
[12] Hans Kelsen, TPD, 80 and TGN, 9. We can only agree with Kelsen when he denounces the illusion of the "traditional doctrine", according to which the law is only composed of general norms, with judgments having only a declarative value (TPD, 239). That the doctrine has abandoned this illusion, in order to recognise the quality of the judgment as a standard (This is a progress that is not unrelated to the influence of Kelsen, in particular to the analytical rigour of his distinction between being and ought-to-be. Hugues, op. cit., 695.
[13] Kelsen, TGN, 376, note 10, final emphasis added. This analysis of generality is consistent with the definition given in TPD, 245: "General norms are never more than a framework within which individual norms must be created. Only this framework can be narrower or wider. It reaches the maximum width when the general positive norm contains only the power to create the individual standard, without determining its content in advanceitalics added.
[14] Jeremy Bentham, Of Laws in GeneralLondon: The Athlone Press, 1970, 76; François Ost, Sade and the lawParis, Odile Jacob, 2005, 274.
[15] A case in point is Article 1134 of the Belgian and French Civil Codes: 'Legally formed agreements take the place of law for those who have made them. They may be revoked only by their mutual consent, or for the reasons which the law authorises. They must be performed in good faith.
[16] It should be noted that the sixth and highest degree of normative generality corresponds, according to Kelsen, to that of the fundamental norm (Grundnorm). Any legal system is necessarily based on a Grundnormwhich is a fiction (Kelsen, TGN, 339f. and 376).
[17] Quid when the legal subject adapts his behaviour to the general norm, precisely in order not to not to be coerced? Will it be denied that, in this hypothesis, the general norm has 'limited' or 'normed' his behaviour without the intervention of an individual norm? Of an individual norm of state coercion, certainly. However, a general norm can never be actualised, even if in the mode of self-censorshipThis is not the same as an individual standard.
[18] Kelsen, TPD, 36, 41f., 64, 220, 259; TGN, 28.
[19] N2 single socket. If, because of N2, the son obliges himself here and now, i.e. if he actualises N2 in an individual norm - "given N2, I am obliged here and now to close the window" - then he is obliged. Not by N2: by an individual norm that actualises N2 in the mode of constraint - even if it is self-generated. A general norm is only ever actualised, in the mode of constraint, by an individual norm.
[20] Kelsen, TGN, 115: "The object of a norm (...) is (...) human behaviour. For the norm must be observed and applied. It can therefore be set adequately on the sole condition that it is addressed to a being who can understand its content and intend to behave in accordance with it (...)." (italics by Kelsen, final emphasis added). This could not be better stated. See also TGN, 196, 285, 369.
[21] Taking into account the point of view of the addressee is not a choice of opportunity. The norm is a human reality through and through. To deal with the norm without taking into account the point of view of its addressee is an illusion of theoretical purity which is a negation of its object. There is only a human standard. There can therefore be no science of norms that does not scrupulously take into account the point of view of the addressee. This indicates a consubstantial link between the science of norms and anthropology, understood as a set of elementary generalisations about human nature, more precisely about the behaviour human.
[22] The difference is not one of degree, it is, let us insist, one of nature. There is an objective difference - from the point of view of the science of standards - between a standard whose binding actualisation is predictableThe former is like an electrified fence, the latter a cattle prod to be used at will. The former is like an electrified fence, the latter a cattle prod to be used at will.
[23] The thousand-headed tyrant described by Aristotle, in The PoliciesP. Pellegrin, trans. P. Pellegrin, Paris, Flammarion, 1993, 1292a.
[24] Stipulating "It shall not be lawful to make a law for an individual if the same law does not apply to all Athenians, unless the decision is taken by 6,000 voters in a secret ballot", see Andocides, "On the Mysteries", in SpeechG. Dalmeyda, trans. G. Dalmeyda, Paris, Les Belles Lettres, 2002, 87.
[25] Kelsen, TGN, 377.
[26] Although it takes implicitly the point of view of the addressee of the standard in a whole series of notions, reflections and definitions (see for example the definition of freie Rechtsfindung(e.g., a system of arbitrary law, which he opposes to the constitutionalist rule of law, TPD, 251, or the discussion of equality before the law, TPD, 146), the negation of this view, when discussed as suchis structuring the Theories of Kelsen. Thus the polemic in the PDT against the notions of subjective right, legal subject and even legal person, all of which are subsumed under what Kelsen calls the 'subjectivist attitude to law', which consists of viewing law 'from the point of view of the interest of the parties' to determine 'to what extent it harms him, i.e., threatens him with harm or disadvantage.' It is up to the pure theory of law, Kelsen explains, to dissolve this ideological viewpoint (TPD, 190).
[27] The definition The Kelsenean view of generality as such is not wrong, even if it leads, as we shall see, to the collapse of his conceptual system.
[28] If we accept the picture of normative generality in the TGN - which is merely the analytical deepening of the concept of generality that underlies the edifice of the two Theories - The error of the authors who establish Kelsen as the critic of arbitrariness - in whatever sense one takes this concept (formal or material) - becomes clear. Not only the Kelsen of the two Theories does not oppose the arbitrary to the law, yet the norm enshrining the purest arbitrariness of an authority embody the quintessence (i.e.the highest degree) of normative generality. Contra: M. Cau, "Hans Kelsen and the Theory of the State in Dante", trans. Pierre Girard, Law and literature, 5/2005. It is true that Kelsen took the view in his early writings that the rule of law was opposed to absolutism (cf. H. Kelsen, "Rechtsstaat und Staatsrecht", Österreichische Rundschauvol. XXXVI, 1913), but as soon as the most general norm is precisely that which enshrines the arbitrariness of an authority, this distinction is no longer possible. To write, as Emmanuel Pasquier does, that Kelsen seeks to "ward off arbitrariness" is a contradiction in terms: E. Pasquier, From Geneva to Nuremberg: Carl Schmitt, Hans Kelsen and International LawParis, Garnier, 2012.
[29] Note, for example, that from the point of view of the addressee of the norm, there is no difference, in terms of room for manoeuvre, between the order addressed by the father to one of his sons, and the same order addressed to his three sons - the latter injunction corresponding to the first (and, according to him, weakest) degree of Kelsene generality.
[30] In any order of constraint, there are norms that are not directly constrained: this is a truism that we do not discuss here; on this point our agreement with Kelsen is perfect.
[31] The question arises as to the relationship of this antinomial generality-arbitrariness to the Kelsenian couple of general norms and individual norms. The two antinoms are difficult to combine, as their concepts do not overlap. Nevertheless, since they are two exhaustive divisions that apply to the same whole, their conjugation must be made. Among the general norms of our antinomial generality-arbitrariness, there are hardly any general norms of the fourth Kelsenian degree (such as article 1134 of the Civil Code). Among the arbitrary norms, in the sense that we have defined, we shall rank on the one hand the falsely general norms (from the point of view of the addressee), of the type of degrees 5 and 6 of generality according to Kelsen, and on the other hand the individual norms that do not conform to a general norm in the defined sense. Finally, it should be noted that an individual norm is not necessarily arbitrary, if it is 'sourced in' (conforms to) a general norm in the defined sense. To consider, in reverse, the intersection of antinoms in the Kelsenian framework, let us note that Kelsen's general norms designate both general norms and arbitrary norms in the sense indicated, and that Kelsenian individual norms include, without discrimination, individual norms that are sourced in general norms (in the sense of our antinom) and individual norms that are not.
[32] Not only does Kelsen fail to recognise the primacy, from the point of view of legal theory, of normative generality over semantic generality, he does not note the existence of this duality of views (when dealing with the subject as such). In Kelsen, the semantic point of view cancels out the point of view we have called 'normative', which he refuses to name and distinguish, although he makes repeated implicit use of it.
[33] Contra the Kelsen of the TPD, which considers the judgment to be always an individual standard: 27, 80, 89, 97, 123, 144, 168, 230, 232, 239, 250. See in the same sense TGN, 36.
[34] From a strict semantic point of view, it is surprising that Kelsen does not at any time refer to the permanence in the definition of generality. Let us assume two identical norms; the first exhausts its validity one week after its enactment, while the second persists indefinitely. Will it be disputed that the latter is more 'general' than the former? This is what Kelsen cannot do because, due to the very fact of the difference in duration, the number of addressees of certain norms is higher (a criterion that Kelsen takes into account in his definition of the degrees of generality, but in an exclusively static mode in time, which formally there is no justification for): this shows the nominalism of a debate that is undoubtedly of interest to linguistics, but only concerns law and its theory at the margin.
[35] He had argued the opposite throughout the PDT, 82, 95, 238, 267.
[36] Kelsen, TPD, 14.
[37] Other authors are notoriously more reserved, such as Kant.
[38] Kelsen, TGN, 541.
[39] Kelsen, TGN, 542.
[40] This logically makes Kelsen what Richard HS Tur calls a 'defeasibilist', 'which permits the court to disregard, disapply of defeat an applicable general norm, and (...) to substitute a new individual or general norm of its own devising (...)', in 'The Alternative Character of the Legal Norm: Kelsen as Defeasibilist? Kelsen Revisited, New Essays on the Pure Theory of LawLuis D. d'Almeida, John Gardner and Leslie Green (Oxford and Portland: Hart, 2013), 258.
[41] Kelsen, TGN, 318.
[42] Kelsen, TGN, 335. See also TGN, 320.
[43] On this and other points, the TGN marks a conceptual radicalisation, more sophisticated than fruitful, compared to the TPD.
[44] "An intelligence which, at a given moment, would know all the forces of which nature is animated and the respective situations of the beings which compose it, if, moreover, it were sufficiently vast to submit these data to analysis, would embrace in the same formula the movements of the largest bodies in the universe and those of the lightest atom; nothing would be uncertain for it, and the future, like the past, would be present to its eyes": Pierre-Simon Laplace, Philosophical essay on probabilityParis, Bachelier, 1814, 2.
[45] A definition of the will that is no more satisfactory at the level of the general norm alone (without considering the individual norm): what sense is there in positing, as Kelsen does, that general norms, for example of Roman law, the fruit of a thousand years of refinement by generations of cautiousThis was the case for the first time in the history of the Roman Empire, first of praetors and then of imperial officials, until the synthesis of the Justinian Code, are the meaning of acts of will of specific persons? (see e.g. TGN, 401, note 38, which shows the ingenuity of Kelsen's theory of the will).
[46] While the power of reasoning and the penetrating and original character of most of its developments are to be commended, the General theory of norms appears, from this point of view, as an analysis of particular initial definitions, which seem to proceed from a thirst (illusion) for theoretical purity that is reminiscent of both the Aristotelian circumscription of the field of possibilities, and the illusions of the Mathesis universalis of Leibnitz. Cf. the way Kelsen argues in fine of the TGN that "the jurisdictional decision is not a logical inference, but (...) once it has been made and the individual norm becomes valid, it is based on the validity of the general legal norm to be applied in the concrete case. (page 567). Can one measure the baroque and artificiality of this foundation retrospective the validity of an individual standard in a general standard from which it is supposed not to have been deducted?
[47] What is fictional, to clarify the previous development, is not the hypothesis of the legislator as such: on the one hand, this is a convenience of language that is difficult to avoid, and on the other hand, for a norm to be a norm, there must be an authority, however diverse and decentralised. The fictional case against Kelsen concerns the cognitive work of the author of general norms. When these norms are the result of centuries of refinement, it is inaccurate to present them as the result ofa The legislator is a legal fiction in the strict sense, devoid of will in the sense that Kelsen gives to the term "will". The error of perspective, from this point of view, is to be compared with Kelsen's reduction of the function of judging to the sole act of judging, cf. infra.
[48] All operations perfectly described and circumscribed by Kelsen in the TPD (see note 238 and the other references cited supra), before he changed his mind in the TGN.
[49] That a norm can be formulated as a statement, without normative ambition, conditions the very existence of the theory of law, which gives an account, in the descriptive modeof standards. See. TPD, 82: "the Sollen of the legal proposal has not, as the Sollen It has only a descriptive meaning. It is nonetheless a Sollen!
[50] Kelsen, TGN, 167s.
[51] Kelsen, TGN, 543.
[52] Kelsen, TGN, 548.
[53] Kelsen, TGN, 317. In sum, Kelsen's argument boils down to the impossibility of deducing from the general norm to the individual norm of the judgment as such. This is formally correct, at the cost of a simplification of the issue, i.e. of a crushing of cognitive work by the normative moment. For if the individual norm is not deducible normatively of the general standard, it is intellectually. This is what Kelsen recognized in TPD, 18: "a norm can be something other than the meaning of an act of will; as a significant datum it can also be the content of a pure act of thought. Some norms are willed; others are merely thought, without being willed. To deny this concession would mean abandoning expressions such as "applying the laws" (which Kelsen uses extensively), which would make for a strange theory of law. See also TGN, 167, where the concession is implicit: "When a certain behaviour is objectively - i.e. in a purely cognitive way - established as conforming or not conforming to a norm presupposed to be valid (...)", etc.
[54] Kelsen, TGN, 322, italics added.
[55] This cornerstone of the act of judging is, according to Kelsen, recognition, by the judgeThe fact that Kelsen sometimes takes into account the viewpoint of the addressee of the norm for the purposes of his presentation shows that the general norm to be applied is not always the same.
[56] What is the difference between this system and that of natural law, in which judges are allowed to set aside a positive norm that is contrary to 'natural justice', and which Kelsen rightly denounced as 'leading only to the most total anarchy' (TGN, page 378, see also 159)? What is the difference between this system and the one that would include a norm expressly enjoining the judge to decide according to his political and moral convictions, a system that Kelsen denounced in the TPD as a "pure and simple abdication of the legislator in favour of the judge"? (TPD, 247; see also the polemic against Roscoe Pound's system, TGN, 436, note 80). It would be arguable that the recognition is even more anarchic, since it is only stipulated that no This is a criterion, even if it is a criterion of justice, even if it is an individual criterion, by virtue of which the judge would be led to recognise, or not, the general applicable norm.
[57] The court competentKelsen, TGN, 557: one is justified in asking whether the finding of such jurisdiction is itself the result of the whim of the court seized (by chance?), or whether that court has jurisdiction by application of the general rules of judicial law.
[58] On these same grounds, Kelsen rejects the application of the rules of logic to norms more generally. For the reasons given, this rejection (absent from the PDT) seems questionable; however, the subject would take us beyond the present work.
[59] In the sense of existentialist freedom.
[60] It is arguable that it therefore falls outside the scope of legal theory in the strict sense.
[61] Kelsen, TPD, 197.
[62] Cf. the references cited supra.
[63] TP, 39.
[64] Kelsen, TGN, 345s.
[65] Kelsen, TPD, 224s.
[66] Kelsen clearly asserts the possibility (TGN, 346), claiming to be the ideal state of Plato "which empowers judges to decide individual cases, according to their discretion, without being bound by predetermined general norms" - without being bound by norms legalKelsen (who, moreover, uses the word generality in the quoted sentence in a sense expressly irreconcilable with his definition of generality, since he excludes here precisely the arbitrary). In any case, it should be noted that Plato himself emphasises the impossibility of this ideal state, and this, it should be noted, for reasons that are properly normative (i.e.For Socrates, how could there be someone who would be able, at any moment in life, to come and sit down with each person and prescribe precisely what he should do?The Politics295a and 295b, trans. L. Brisson and J.-F. Pradeau, Paris, Flammarion, 2003). In the absence of this "god among men" (303b), we need, Plato concludes, written rules and ancestral customs, intangible and without exception (301a): where one will have recognised the concept of generality antithetical of Kelsenian arbitrariness.
[67] One would be tempted to answer by distinguishing, as Kelsen does, between norms that empower to create lower norms (e.g. the constitution empowers the legislature to create laws), and norms that prejudge the content of the lower norms to be created (e.g. excluding the criterion of race, or limits to freedom of expression: these examples are from the Kelsen of the TGN). The latter could be perfectly arbitrary/general, in the Kelsenian sense, by not prejudging the content of the lower norms at all, whereas the former are not (it is the legislator who creates the laws and he alone, in strict compliance with the conditions laid down by the constitution). However, this distinction is not conclusive in this case. Either the normative order under consideration provides for the possibility of its own revision, a power that ultimately falls to the lower normative level in the considered scheme of "perfect" generality/arbitrariness. Or it is not perfectly general/arbitrary in the Kelsenian sense.
[68] The fact that a norm can be considered as a statement conditions the possibility of any theory of law, which Kelsen already emphasises in the Pure theory82s, distinguishing between the norm as " Sollen prescriptive" and the statement about the norm, which is a "prescriptive Sollen descriptive". (Strictly speaking, the term "descriptive Sollen A 'description' is a contradiction in terms: a normation is not a description but a normation; we will therefore speak more readily of a 'description of a Sollen' than of a 'normation'. Sollen descriptive").
[69] In the sense of grasping the statement in and through an act of will whose meaning is judgment.
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