From the ‘Middle‐Way’ to Normative Irrationalism: Hans Kelsen's General Theory of Norms
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02859.x |
| Author | Deryck Beyleveld |
| Date | 01 January 1993 |
| Published date | 01 January 1993 |
The Modern
Law
Review
[Vol.
56
REVIEW
ARTICLE
From the
‘
Middle-Way
’
to
Normative Irrationalism:
Hans Kelsen’s
General Theory
of
Norms
Deryck
Beyleveld*
Hans
Kelsen,
General Theory
of
Norms,
translated by Michael Hartney
,
Oxford:
Clarendon Press, 1991, lx
+
465 pp, hb
E55.00.
Hans Kelsen’s
General
Theory
of
Norms
is a translation of a manuscript left
incomplete at his death in 1973, which was published posthumously as
Allgemeine
Theorie der Normen
in 1979 (Vienna: Manz). The translation is excellent. There
is also a stimulating and highly informative introduction, and a useful index.
The book contains 61 chapters of greatly varying length and there are very copious
notes
-
which make up almost half the manuscript. Some of the material will be
familiar to those who know the second edition of
Pure
Theory
of
Law
(PTL2),’
and some chapters contain material published in articles towards the end of Kelsen’s
life. However, there is much that is new. In particular, Kelsen is concerned to develop
the thesis that ‘standard’ logic, represented by the principle of contradiction and
the rule of syllogistic inference, does not apply to norms, and most of the second
half of the book (Chapters 38-61) is devoted to this contention.
The book reads like a set of preparatory notes under a number of headings: it
is
very much a ‘work in progress’ rather than a finished piece. There is considerable
repetition of points and some instances where analyses are flatly contradicted. For
this reason, it is difficult to give a summary of the argument of the book as a whole,
and
I
shall begin by indicating what is to be found in the various chapters.
Having done
so,
I shall examine and reject Kelsen’s arguments against a logic
of norms (for what may be called ‘normative irrationalism’). Apart from being
invalidly grounded, normative irrationalism has a number of radical consequences
for the viewpoint expressed in PTL2. Most significantly, in my opinion, normative
irrationalism requires abandonment of the attempt to forge a ‘middle-way
’
between
legal idealism and legal realism.
Other features of the book merit detailed examination, especially Kelsen’s extensive
comments on Kant and on practical reason. Unfortunately, available space precludes
this.
I
shall, however, deal briefly with some such matters in notes or in passing,
though others will escape comment altogether.
Summary
of
the
Book
Chapter
1
provides a general summary
of
the theory. Chapters 2-7 deal with the
differences between causal and normative necessity. Chapters 2-4 are devoted to
a discussion of Immanuel Kant’s distinction between categorical and hypothetical
imperatives. Kelsen maintains that the so-called ‘hypothetical imperatives’ are not
imperatives at all, as they involve only causal necessity. This contention involves
*Reader in the Philosophy of Law, University of Sheffield.
I
(2nd ed, translated by Max Knight, Berkeley: University of California Press, 1967).
0
The Modern Law Review Limited 1993 (MLR 56:1, January). Published by Blackwell
Publishers,
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January
19931
From
the ‘Middle- Way’ to Normative Irrationalism
a rejection of the principle (which Kant held to be analytic) ‘Who wills the end
must (ought to) will the means.’ Kant is also accused of wrongly maintaining that
moral imperatives are always unconditional in form and that conditional imperatives
cannot be moral. Chapter 5 elucidates Kelsen’s own distinction between categorical
and hypothetical norms. Norms always prescribe intrinsic ends (ends to be pursued
for their own sakes). A hypothetical norm is one to be applied on fulfilment of a
condition. A categorical norm is one to be applied unconditionally. Kelsen presents
the thesis that all general norms of a positive legal or moral order are hypothetical
(ie ‘Promises ought to be kept’ is to be interpreted as ‘If someone makes a promise,
he/she ought to keep it’). Chapters 6-7 concern the distinctions between causality
and imputation and between natural laws and social (moral and legal) laws.
Chapters
8-1
1 deal with Kelsen’s theory of willing. This includes the following
propositions. A norm is an act of will, not a statement (which is an act of thought).
To say that a norm is valid means that it ought to be observed. A norm is objectively
valid if it is empowered. Validity is the
ideell
existence of a norm. For a norm
to be valid is for it to exist. The existence of a norm presupposes a positor and
an addressee (strictly, human behaviour, rather than a person). ‘Ought’ is the meaning
of an act of will directed to the behaviour of others. Understanding the meaning
of an act of will always involves reference to internal mental processes. For a person
to recognise a norm is for that person to address a command to him/herself. Recog-
nition does not involve assent to a statement (as norms have no truth value
-
are
neither true nor false). One can only will one’s own behaviour, not that of another
person; but one can will that another person do something.
Chapter
12
presents the view that only categorically valid individual norms can
be obeyed or violated
immediately.
Individual norms (eg ‘A ought to keep his promise
to repay &1,000 to B’) are not implicit in general norms (eg ‘Promises are to be
kept’). For the individual norm to be valid presupposes that it is posited by a real
act of will. Hence, to claim that the validity of the individual norm is implicit in
that of the general is to suppose that the positor of the general norm knew that A
would make this specific promise. Chapter
13
maintains that the validity of a general
norm is a dynamic process. It begins with positing of the norm, but is only completed
when a corresponding individual norm is posited by an individual who recognises
the validity of the general norm.
Chapter 14 distinguishes law from morality as imposing characteristic types of
sanctions.2 ‘Immediate’ addressees of general hypothetical norms (those empow-
ered to apply sanctions) are distinguished from ‘mediate’ addressees (individuals
whose behaviour is the condition for the sanctions decreed in these norms to be
applied). Chapter 15 distinguishes ‘objective’ observance or violation of a command
(which takes place whether
or
not the addressee is aware of the command) from
‘subjective’ observance or violation (which requires the addressee to be aware of
the command, to understand its meaning and to intend the observance or violation).
Chapter 16 (in line with Chapters
2-4)
maintains that hypothetical imperatives
cannot be derived from facts. ‘Ought’ and ‘is’ are different ‘modes.’ To say that
X
ought to be done is not to say
about
X
that it ought to be.
X
is not an indicative
factor, but a ‘modally indifferent substrate’ common to a statement that
X
is, and
a
prescription that
X
ought to be. Chapter 17 maintains that ‘ought’ cannot be defined
and discusses denials of the duality between ‘ought’ and ‘is’ to be found in Plato,
Aristotle, Aquinas, Bentham, Moritz Schlick, Fritz Mauthner and Felix Cohen.
2 This
is
the position adopted in PTL2.
0
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Modern
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1993
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