First published Mon Nov 18, 2002; substantive revision Wed Jul 7, 2010
The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973). (See bibliographical note) Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsenclaimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle” (PT1, 7).
* 1. The Basic Norm
* 2. Relativism and Reduction
* 3. The Normativity of Law
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1. The Basic Norm
The main challenge for atheory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world (PT1,10). Suppose, for example, that a new law is enacted by the California legislature. How is it done? Presumably, some people gather in a hall, debate the issue, eventually raise their hands in response to the question of whether they approve a certain document or not, count the number of people who say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and eventsdescribed here are not the law. To say that the description is of the enactment of a new law is to interpret these actions and events in a certain way. But then, of course, the question is why certain acts or events have such a legal meaning and others don't?
Kelsen's answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning by another legal norm that confersthis normative meaning on it. An act can create or modify the law if it is created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm that authorizes its enactment in that way. In other words: it is the law in the United Statesthat the California legislature can enact certain types of laws. But what makes this the law? The California Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of content and jurisdiction. But then what makes the California Constitution legally valid? The answer is that the legal validity of the Constitution of California derives from anauthorization granted by the US Constitution. What makes the US Constitution legally valid? Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the land”. Any document can say that, but only the particular document of the US Constitution is actually the supreme law in the United States.
The problem is that here the chain of authorization comes to an end: Thereisn't a higher legal norm that authorizes the enactment of the (original) US Constitution. At this point, Kelsen famously argued, one must presuppose the legal validity of the Constitution. At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this...