Kelsen and logic
Kelsen’s Pure Theory of Law is formal juridical logic. All the themes deal purely and simply with logic and, more precisely, they refer to the “ought to be” logic not the logic of “being.”
Kelsen starts with the norm as a scheme of interpretation[1] (or knowledge). The norm in its logical scheme “if A ought to be B” is in parallel with natural law and its own logical scheme, “if A is, B is.” Kelsen’s norm, however, does not describes but “is the meaning of an act by which a certain behavior is commanded, permitted or authorized.”[2]
The “ought to be” as imputative function is different from the declarative function “is.” In Kelsen’s words:
“In two statements, ‘the door is being closed’ and ‘the door ought to be closed,’ the closing of the door in the former statement is pronounced as something that is, in the latter as something that ought to be. The behavior that is and the behavior that ought to be are not identical, but they differ only so far as the one is and the other ought to be. Is and ought are two different modi.”[3]
Most of the rest of Kelsen’s Pure Theory has to do with analyzing the relationship of multiple norms in the sense they have imputative relations with each other. Therein, Kelsen considers the legal order as a whole. The different norms have coherence as a scheme of interpretation because this way of thinking explains why and how, by acknowledging their interrelations, work as a whole.
In an infamous move for legal philosophers, Kelsen seems to maintain contradictions. However, the seeming contradiction disappears when considering Kelsen’s theory as juridical logic. Consider Kelsen’s words:
“there is a certain connection between the legal “ought” and the “is” inasmuch as a general legal norm, in order to be regarded as valid, must not only be posited through an act, an “is”, but must also be efficacious to a certain degree, that is, must on the whole actually be applied and complied with. A general norm that is not applied and complied with at all is not regarded as valid; and it is a nonsense to posit a norm prescribing how one ought to behave when it is known from the outset that the behavior in question must ensue as a matter of natural necessity. There must exist the possibility of behavior that conflicts with the norm. Therefore validity cannot be identified with efficacy.”[4]
If, for example, the legal order stated “you ought to do whatever you wish” and, consequently, there would not be any logical possibility of disagreement between norms and human conduct, the contradiction would be within the legal system itself because such a legal system would refer to an individuation or specification that would not take place. This issue has to do with formal juridical logic.
In turn, to ask for a minimum of efficacy in order to be able to deal with validity has to do with transcendental juridical logic because it is referred to the object, that is human conduct. It means that the scheme of interpretation does not count as knowledge if it does not correspond with an object. In this case, there is no logical possibility or impossibility but an interpretation guided by an object in its modus of existence.
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Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Friday 18th June 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
[1] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 3.
[2] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 5.
[3] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 6.
[4] Hans Kelsen, “The Concept of the Legal Order,” The American Journal of Jurisprudence 27:1 (1982): 64-84, 66.
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