THE IMPERATIVE FALLACY IN KELSEN'S THEORY
| Author | A. Wilson |
| Published date | 01 May 1981 |
| Date | 01 May 1981 |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb01629.x |
THE
IMPERATIVE FALLACY
IN
KELSEN’S
THEORY
THE
legal norm, it was almost unanimously accepted in jurispru-
dence to about
1900,
expressed “the will of the state,” and what
this will required was the
“
law abiding conduct of the subject
”;
in other words, the legal norm appeared as
a
command
“
ordering
”
or
“
prohibiting
”
certain conduct to the subject. This, the Impera-
tive Theory, had been maintained by schools of thought otherwise
radically different, as by the continental advocates of Natural Law
in the seventeenth century, Grotius and Puffendorf, and in nine-
teenth century England by Jeremy Bentham and John Austin; it
was upheld in Germany in the late nineteenth century by more than
one jurist, notably Binding. Kelsen, in reaction, set up in his early
work
a
concept of his own, combining his own view of the “will
of the state
”
and his new, quite different view of the norm in rela-
tion to that will.
In this essay
I
begin by describing summarily Kelsen’s treatment
of the legal norm in the later stages of his career, with reference
to his changing position as to the idea of command. The rest of the
argument will be pursued as follows. First
I
elucidate the different
meanings attached to the term
“
ought
”
as it is used by Kelsen in
different contexts in his work. Secondly,
I
shall show that Kelsen’s
views as to the origin and validity respectively of norms are irre-
concilable. His belief in the
“
ought
”
as ultimately traceable to the
will is, to be sure, a logical consequence of his ethical subjectivism
but leads him, nonetheless, into the fallacy of making an
“
ought
”
rest ultimately on the
‘‘
is.’’ Commission of this fallacy, however,
was never explicitly admitted by Kelsen, who remained throughout
equally attached to the belief that
“
an ought can only be founded
on another ought.”
Though at the beginning of his career Kelsen had rejected the
notion of the legal norm as conveying the
“
will of the state
”
and
had seen it, in its formal character, as
a
“
hypothetical judgment
”
not expressive
of
will, he came round, in the
1960
(second) edition
of
The Pure Theory,
to admission
of
the will into his concept
of
the
legal norm, without making the norm
“
an act of will
”:
“
Norm is the meaning of an act by which
a
certain behaviour
is commanded, permitted
or
authorized. The norm, as the
specific meaning of an
act
directed toward the behaviour of
someone else, is to be carefully differentiated from the act
of
will whose meaning the norm is: the norm is an
ought,
but the
act of will is an
is.
Hence the situation constituted by such
an
act must be described by the statement: The one individual wills
that the other individual ought to behave in a certain way.”
The
“
act
”
here is, typically, that of legislation, and the distinction
1
The Pure Theory
of
Law
(translated
by
Max
Knight
in
1967
from
the
1960
edition),
p.
5,
hereinafter referred
to
as
The Pure Theory.
270
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