The Quest for Specificity in Jurisprudence

Author(s): Alan Gewirth

Source: Ethics, Vol. 69, No. 3 (Apr., 1959), pp. 155-181
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2379346
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ETHICS AN INTERNATIONAL JOURNAL OF
SOCIAL, POLITICAL, AND LEGAL PHILOSOPHY
Volume LXIX APRIL 1959 Number
3
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE*
ALAN GEWIRTH
T HE relations between disciplines
involve problems which, at their
most general level, are of a kind
traditionally called "categorial." They
are ontological problems about the ulti-
mate nature of the entities with which
the disciplines deal, or logical problems
about the language or concepts which
they use-and the relations between
these and other ways of putting the
problems are themselves categorial
problems. One of the main tasks of phi-
losophers has always been to deal with
such problems, and one of the ways
they have done so is by explicating the
differences between various disciplines
where these differences are held to be
of an ultimate sort. Familiar examples
from the not too distant past are Frege
on the difference between logic and psy-
chology, and Moore on the difference
between ethics and natural science.
Jurisprudence, the science of law, has
always been beset by such categorial
problems. Both before and since the
efforts of Bentham and Austin to define
the limits and determine the province
of jurisprudence, there have been nat-
ural-law thinkers who have stressed
law's affinities with ethics, cosmology,
*
This paper was written while the author held a
grant from the Rockefeller Foundation.
or biology, as well as those who have
tried to treat law historically, psy-
chologically, or sociologically. These
divergent attempts have involved cate-
gorial problems in that they have turned
on questions about the most general
kinds of subject-matters or concepts
under which law and the jurisprudential
study of it are to be classified. And
similar problems are crucially involved
in Hans Kelsen's "pure theory of law,"
which has been the most thorough going
and elaborate attempt, in the present
century, to deal with law as a unique
or specific subject-matter. Kelsen's the-
ory has been set forth repeatedly in
many books and articles, first in Ger-
man and French, and latterly in Eng-
lish, where one of its definitive state-
ments is found in his General Theory
of Law and State.1 The theory has long
been subjected to searching criticisms
by jurisprudents.2 Most recently, how-
ever, the opportunity for a reassessment
of its basic tenets has been provided by
the publication of a volume of Kelsen's
collected essays entitled What is Jus-
tice? Justice, Law and Politics in the
Mirror of Science.3 These essays, most
of them previously published elsewhere
but here presented in revised form, re-
peat and supplement his other state-
ments of his theory, highlighting certain
155
156
ETHICS
aspects of it and discussing certain phil-
osophic questions related to it.
The aim of what follows is to examine
some of the central philosophic prob-
lems involved in Kelsen's jurisprudence.
In doing so, I shall concentrate more
than jurisprudential critics of Kelsen
usually do on questions which are close
to the technical concerns of philoso-
phers and which, at the same time, are
at the core of Kelsen's approach to law.
These questions are the categorial ones
bearing on the relations among disci-
pline, and the justification for the pres-
ent examination is found not only in
Kelsen's acknowledged eminence but in
the great importance of his project for
these questions. Their categorial nature
is evident from Kelsen's description of
the aim of his theory. For it consists in
the resolve to describe and analyze law
as a "specific social technique" in sep-
aration from the various "foreign" ele-
ments which have been mingled with
the study of it in the past. In this spec-
ificity consists the "purity" of Kelsen's
jurisprudence:
It is called "pure" because it seeks to pre-
clude from the cognition of positive law all
elements foreign thereto. The limits of this
subject and its cognition must be clearly fixed
in two directions: the specific science of law,
the discipline usually called jurisprudence,
must be distinguished from the philosophy of
justice, on the one hand, and from sociology,
or cognition of social reality, on the other.4
As Kelsen develops this two-sided
differentiation of jurisprudence from
ethics and from sociology, it soon be-
comes evident that his project involves
him in categorial problems about ulti-
mate differences: between norms and
facts as different kinds of "reality,"
between the different scientific ways of
treating each of these, and between de-
scription and moral evaluation. The
very terms which Kelsen uses to char-
acterize the two phases of his specifica-
tion of jurisprudence suggest these
problems: In its contrast with the "phi-
losophy of justice," or ethics, he calls
his jurisprudence a theory of "legal
positivism;
"'
while, in its contrast with
sociology, he calls his jurisprudence a
"normative theory of the law."6
It is important to note at the outset
that Kelsen applies to his theory three
terms which nowadays are usually kept
sharply separate: pure, positivist, and
normative. For many contemporary
analytic philosophers, including the logi-
cal positivists with whom Kelsen has
some striking affinities (going back per-
haps to the Vienna of three or four
decades
ago),
"pure," if used at all,
refers to the a priori propositions of
formal logic; "positivist" refers to the
empirical propositions of physics and
the other factual sciences; and "norma-
tive" refers to the evaluative utterances
of ethics and kindred disciplines. For
Kelsen, on the other hand, these three
characterizations describe inextricably
interconnected aspects of his theory. It
it pure in that it treats law as a specific
subject-matter in separation from all
"foreign" elements, viewing it as a "sys-
tem" which it subjects to a "structural
analysis."7 It is positivist in that it views
laws as something " 'posited' or created
by certain acts,"8 and also in that it
treats law analytically or descriptively
and refrains from making moral judg-
ments about law: it deals with "what
the law is, not what it ought to be."9
It is normative, finally, in that it views
law as a system of valid norms; so that,
whereas every factual science, including
sociology, "describes its object-nature
-in is-propositions; jurisprudence de-
scribes its object-law-in oughit-prop-
ositions."10
From these
characterizations,
it can
be seen that Kelsen paradoxically
insists
both on removing normative "oughts"
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 157
from his theory insofar as they would
consist in moral evaluations of law, and
on retaining them insofar as they de-
scribe or repeat the statements of law. In
other words, Kelsen's positivism refers
both to his subject-matter (law is "pos-
ited") and to his approach to that sub-
ject-matter (descriptive or analytic, not
morally evaluative), whereas his norma-
tivism refers only to his subject-matter
(law consists of norms), and not to his
approach to that subject-matter (he
does not present norms or evaluations
of his own)." That his positivism and
normativism go together as referring to
his subject-matter is further shown by
the fact that he calls laws "positive
norms."'2 However, while the "purity"
of Kelsen's theory consists in its logical
approach to law and its differentiation
of jurisprudence from both ethics and
sociology, its "positivism" stresses the
differentiation from ethics, and its "nor-
mativism" the differentiation from soci-
ology. But, it is precisely in the attempt
at this double differentiation that the
root philosophic or categorial difficulties
of his theory are found. They derive
from the fact that he seems to find it
extraordinarily difficult to maintain his
normativism because of philosophic as-
sumptions deriving from his positivism;
and on the other hand, his endeavor to
maintain his positivism is defeated by
factors which ultimately derive from
his normativism. I shall hence deal
separately with these two integral parts
of Kelsen's quest for specificity in
jurisprudence.
NORMATIVE JURISPRUDENCE
AND SOCIOLOGY
Normative jurisprudence views posi-
tive law as a system of norms or rules
having certain definite characteristics,
and its method is not to describe or pre-
dict the actual behavior of men in legal
situations, but rather to carry out what
Kelsen calls a "structural analysis."'3
By this he means that it analyzes the
logical structure of legal norms and
their logical relations of superordination
and subordination, from the "basic
norm," to the first constitution, to the
present
constitution,
to the statutes of
the legislature, and to the decisions of
the courts.14 Kelsen also presents this
structural task of normative jurispru-
dence as one of giving an analysis of
"juristic thinking."'15 His theory exam-
ines the formal patterns of thinking on
the part of a jurist who is considering
the nature of legal rules and their for-
mal relations to one another. The "pre-
suppositions," "interpretations," and
amputationss" required by such think-
ing are thus among Kelsen's main con-
cerns.
Now the initial difference between
Kelsen's normative jurisprudence and
the many varieties of sociological juris-
prudence is the difference between such
a logical or formal analysis of legal sen-
tences and an empirical study of the
social contexts of law. But Kelsen does
not merely present this as a program-
matic or methodological difference; he
dwells far more emphatically on the dif-
ferent interpretations themselves which
normative and sociological jurispru-
dence put on legal sentences. The chief
way in which he distinguishes his juris-
prudence from sociology and the other
social sciences, which present what he
calls 'cognition of social reality," is by
reference to the different copulas of
their respective propositions. All of
these sciences, according to Kelsen,
state hypothetical propositions connect-
ing a condition with a consequence; but
the nature of the connection is different.
In the positive social sciences, as also
in the natural sciences, the connection
is made according to the principle of
158
ETHICS
causality: If there is A, then there will
be
B,
where "A" designates a cause and
"B" an effect. But in the "normative
social sciences," which include not only
jurisprudence but also ethics and theol-
ogy, the connection is made according
to the "principle of imputation": If
there is A, then there ought to be
B,
where "A" designates a delict, a viola-
tion of some rule of conduct, and "B"
designates the sanction which is "im-
puted" to the delict by the system of
rules to which the violated rule be-
longs.16 Imputation, like causality, is "a
category in the sense of Kant's tran-
scendental logic." Neither of these is a
"force immanent in reality," but rather
a "principle of cognition" by which they
describe their respective objects.17
In these terms, Kelsen's objection to
sociological jurisprudence is that it does
not recognize the distinct need for, and
indeed the priority of, the category of
imputation with its "oughts" in its state-
ments describing legal norms. Sociologi-
cal jurisprudence "attempts to describe
the phenomena of law not in proposi-
tions that state how men ought to be-
have under certain circumstances, but in
propositions that tell how they actually
do behave; just as physics describes
how certain natural objects behave.
Thus the object of sociological jurispru-
dence is not legal norms in their specific
meaning of 'ought-statements,' but the
legal (or illegal) behavior of men."18
The difficulty with this is that it in-
volves "that syncretism of method
which is the cause of numerous errors.
What must be avoided is the confound-
ing-as frequent as it is misleading-of
cognition directed toward a legal 'ought,'
with cognition directed toward an actual
'is.
219
Thus,
in
dealing
with the courts
"the meaning of the propositions of soci-
ological jurisprudence is . completely
different from that of the propositions of
normative jurisprudence. The latter de-
termines how the courts should decide
in accordance with the legal norms in
force; the former how they do and pre-
sumably will decide."20
Now Kelsen is clearly right in holding
that there is such a difference in mean-
ing between the propositions of norma-
tive and of sociological jurisprudence.
And he is also right in saying that,
while there is a definite need for both
kinds of jurisprudence, the sociological
variety logically presupposes the nor-
mative.2" But it is difficult, nevertheless,
to be clear about the precise level at
which Kelsen is disagreeing with the so-
ciological jurisprudents. When he writes
that sociological jurisprudence "at-
tempts to describe the phenomena of
law not in propositions that state how
men ought to behave under certain cir-
cumstances, but in propositions that tell
how they actually do behave,"22 he
surely cannot mean that sociological
jurisprudents are not cognizant of the
logical form of laws as being stated in
series of "ought"-sentences, and hence
as what he calls "norms." It is rather
that, taking for granted this logical
structure, they inquire into causal fac-
tors antecedent and consequent to these
forms, in large part out of a conviction
as to relative importance: the forms are
less important for social action and pre-
diction than the actualities and the prob-
lems of behavior. But this does not
mean, even when sociological jurispru-
dents "define" law as a prediction of
what the courts will in fact decide, that
they necessarily ignore the structural
aspects emphasized by Kelsen.
There is, however, a more acute diffi-
culty in understanding Kelsen's differ-
entiation of normative from sociological
jurisprudence,
and the consequent "pu-
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 159
rity" of the former. It involves logical,
and ultimately ontological, problems of
how to interpret the propositions of
jurisprudence. One seemingly obvious
way of interpreting them is as second-
order statements about legal sentences,
so that Kelsen's theory would be a the-
ory about the language of positive law.
Thus, when he writes that "the object of
sociological jurisprudence is not legal
norms in their specific meaning of
'ought-statements,'
'23 the obvious in-
ference would seem to be that the object
of normative jurisprudence-what its
propositions describe-is legal "ought-
statements." The difference between
normative and sociological jurispru-
dence would then be similar in this
respect to the difference between non-
naturalistic and naturalistic meta-ethi-
cal doctrines, the former viewing ethical
sentences as having a specific non-fac-
tual meaning, and the latter viewing
ethical sentences as entirely factual.
The difficulty with this interpretation,
however, is that Kelsen views law as
something more than a language or a
series of statements. His standard ex-
pression for law is "norm," and, as we
shall see, a norm for him is not merely
a linguistic expression. The question is,
then, what is a legal norm?
In order to be clear about this ques-
tion, we must first note certain impor-
tant but relatively non-controversial as-
pects of Kelsen's theory. His approach
to law is in terms of social order. Soci-
ety is "the ordered living together of
individuals. . .. To the individual the
order appears as a complex of rules that
determine how the individual ought to
behave in relation to other individuals.
Such rules are called norms."24 Some of
these rules are coercive in that they
threaten punishment for disobedience.
"A social order that seeks to bring about
the desired behavior of individuals by
the enactment of such measures of co-
ercion is called 'coercive order.' tn25 The
norms contained in such an order are
legal norms, so that "The legal order of
a state is thus a hierarchical system of
legal norms."" In this scheme, norms
are not merely the operative regulators
of conduct, which both derive from and
help to preserve the order; primarily
they constitute that very order.27
Now Kelsen holds not only that it is
possible to distinguish legal norms from
other kinds of social norms, such as
those of morals and religion, but also
that the legal scientist can study any
given system of legal norms in the same
way that any other scientist studies a
factual subject-matter. Indeed, the ju-
risprudent's function is purely descrip-
tive: "Jurisprudence regards law as a
system of valid norms. . . . The jurist,
as the theoretical exponent of the law,
presents these norms in propositions
that have a purely descriptive sense,
which only describe the 'ought' of the
legal norm."28 By means of this descrip-
tive study the legal scientist, or juris-
prudent, can ascertain whether a given
constitution is valid (by ultimate refer-
ence back to a "basic norm" bearing on
effective observance), which laws are
valid and which invalid (by logical ref-
erence of these back to the constitution),
which judicial decisions conform to the
laws and which do not, which behavior
is legal and which is illegal, and so on.
Of course, the jurisprudent is not, as
such, the legislator or judge, so that the
descriptive propositions of jurispru-
dence must be carefully distinguished
from the legal norms themselves,29 and
the jurisprudent's findings are "of no
legal importance."30 Still, the logical re-
lations in question are "facts which can
be ascertained by the science of law,
160 ETHICS
just as facts can be ascertained by the
science of nature."'31 In this, to be sure,
there may be difficulties of various
kinds, especially those to which recent
studies of legal reasoning have called
attention.32 Yet, in principle, Kelsen's
view that a legal system can be studied
in this descriptively logical way is quite
sound, especially since he acknowledges
the propriety of sociological, psycho-
logical, and other kinds of legal studies,
and even more since he also recognizes
the indeterminacy and "discretion" in
judicial decision-making33 to which the
legal realists and similar sociologically-
oriented groups have called so much
attention.
There still remains, however, the
basic problem of just what it is that
the normative jurisprudent studies. If
legal norms are not simply words, and
also are not the phenomena described
by sociology and kindred sciences, then
what are they? What is it that the prop-
ositions of normative jurisprudence
"describe"?
Now this problem is in one respect
merely a specific form of the kind of
categorial problems which philosophers
have long dealt with in both logical and
ethical theory. Kelsen views law as a
logical structure; the question is: "What
is the nature of a logical entity," or
variously, "What kinds of symbols are
logical symbols?" Kelsen also views this
legal structure as normative; the ques-
tion is: "What is the nature of a norm?"
However, these categorial questions
arise in particularly acute form for Kel-
sen because he seems to want to make
an ontological differentiation corre-
sponding to his logical differentiation of
jurisprudential language from sociologi-
cal language. The problem may hence
be put in the following way: The soci-
ologists do not merely remain at the
level of language in presenting their
theory of law; they do not merely talk
about the logical structure of legal sen-
tences. What they do mainly is talk
about law by reference to the psycho-
logical, sociological, and other "corre-
lates" of legal terms: the decisions of
judges, the emotional and other factors
which may influence these, and the ac-
tivities of legislators, pressure-groups,
and various other kinds of social facts.
Now, all of these are empirical phe-
nomena, behavioral data about whose
ontological status there is no mystery
at the level with which the sociologists
are concerned. What, however, are the
ontological correlates of the terms of
Kelsen's pure jurisprudence? What cor-
responds to its norms, "oughts," etc.,
as various kinds of behavioral phenom-
ena correspond to the descriptive terms
of the sociologists? The difficulty here
is that the way in which Kelsen wishes
to distinguish legal norms from the
kinds of behavioral facts dealt with by
sociology and kindred sciences is not
merely in terms of linguistic differences
but by giving a "realistic" characteri-
zation of these norms, and by viewing
jurisprudence as a "descriptive" science
parallel to, but yet somehow different
from, the positive empirical sciences.
He writes that the object of the positive
sciences is "natural reality" while the
object of jurisprudence is "legal real-
ity,"35 and again that the normative sci-
ences, which include jurisprudence, "de-
scribe norms constituting values. . ..3
But if "norms" and "legal reality" are
objects of scientific "description" in
anything like the sense in which facts
and natural reality are, and yet are such
a different kind of thing, then what kind
of thing are they?
The difficulty may also be put in this
way: Kelsen is attempting to combine
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 161
realism and normativism, but this in-
volves an ontology, a view of "reality,"
of a kind to which he appears unwilling
to commit himself, because it is incom-
patible with his positivist assumptions.
It is an important point of his positiv-
ism to reject the view which would lo-
cate the existence of norms within the
existence of facts: "The view that value
is immanent in reality is a characteristic
feature of a metaphysical-religious (and
this means non-scientific) interpretation
of nature and society."37 As we have
seen, Kelsen's criticisms of the socio-
logical jurisprudents for confusing the
legal "ought" with "is" are similar to
the rejoinders which ethical intuitionists
make to ethical naturalists in insisting
that moral obligation cannot be reduced
to or equated with actual behavior or
with any kinds of "natural" facts. But
Kelsen, despite his references to the "re-
ality" of norms, seems unwilling to
postulate explicitly a nonnaturalistic
realm of ideal legal entities; and he
holds in fact that value, including legal
value, "is not inherent in the object
judged as valuable.. . . We cannot find
the value of a real thing or of actual
behavior by analyzing these objects."38
Nor, despite the fact that he is an emo-
tivist in his ethical theory (as we shall
see below), is he willing to characterize
the legal norms either as desires or as
commands, since this would blur the
distinction between jurisprudence and
psychology. Nor can Kelsen's problem
be dealt with by any of the other usual
devices of linguistic philosophers.39 It is
not a question either of giving verbal
equivalents of the word "law" or of
stating the conditions of the word's use,
by reference either to other words or
to various psychological factors, or to
men's actions, or to the institutions,
such as legislatures and courts,
in which
laws function. For Kelsen is not viewing
laws either as languages or as facts, dis-
positions, or institutions of the kinds
describable by psychology, politics, so-
ciology, and kindred sciences. His prob-
lem is rather in what sense law can be
said to exist as a system of norms, as
against behavioral facts. In other words,
the problem Kelsen has raised is a cate-
gorial one.
The upshot of this problem seems to
be that Kelsen is forced to define his
basic concepts in terms of the very
kinds of facts, psychological and socio-
logical phenomena, from which he had
attempted to distinguish them. Thus, at
the categorial level to which his realistic
assumptions about norms have pushed
the matter, he is unable to maintain the
normative purity of his theory. Since
this outcome is of some importance not
only for Kelsen's project but for the
general categorial problems of jurispru-
dence, let us trace it successively in his
treatments of three crucial concepts:
norm, basic norm, and valid norm.
Kelsen defines a norm as "a rule pre-
scribing or forbidding a certain behav-
ior."40 But he at once emphasizes that
the rule cannot be equated with any
natural or social fact. On the one hand,
it is different from the fact that men
behave in a certain way; for this is
stated in "is"-propositions, whereas the
rule is stated in an "ought"-proposition.
On the other hand, although the rule is
created by the act of human beings, it
is not to be equated with this act: "The
norm and the act creating the norm are
two entities which must be clearly kept
apart."'" What, then, is the nature of
the norm? Kelsen undertakes to answer
this question by appealing to concepts
like "meaning," "interpretation," and
"presupposition." But, in trying to elu-
cidate these latter concepts in turn, he
162
ETHICS
seems able to do nothing more than to
assimilate them to the very kinds of
psychological phenomena from which,
being "facts," he had tried to distin-
guish the norm. Thus he writes that the
nature of the norm is to be found by
considering "the relationship between
an act and its meaning. A legal norm is
the specific meaning of an act which,
because of this meaning, is called a
norm-creating act."42 What, however,
is the nature of this "meaning"? Kelsen
elucidates it as follows: "Between the
norm-creating act and its meaning (that
is, the norm created by this act) a kind
of parallelism obtains which is similar
to that between physiological processes
in the brain and psychological phenom-
ena as, for instance, thoughts and feel-
ings. The norm is not possible without
the creating act; but the two are toto
genere different entities."43 This anal-
ogy, however, suggests that what an
overt act "means" is a psychological
occurrence.44 From this it follows that
the norm is a psychological phenome-
non; consequently jurisprudence, the
science of legal norms, would not dif-
fer from psychology. The same point
emerges when Kelsen subsequently
writes that "The acts by which the
norms of a positive normative system
are created are always facts manifested
in the external world, perceptible to the
senses. . . . The norm is the specific
meaning of the fact, and this meaning,
not perceptible by our senses, is the re-
sult of an interpretation. To interpret
the meaning of a fact as a norm is
possible only under the condition that
we presuppose another norm conferring
upon this fact the quality of a norm-
creating fact; but this other norm, in
the last analysis, cannot be a positive
norm . . . but rather a norm the validity
of which is presupposed in our mind."45
In this formulation the norm results
from an "interpretation" of certain
overt acts or from a "presupposition" in
our mind. But if these "interpretations"
and "presuppositions" are not psycho-
logical
phenomena,
then what are they?
Now there are, of course, notorious
philosophic difficulties in such concepts
as "meaning," "interpretation," and
"presupposition," and it would be wrong
to criticize Kelsen for not having solved
them. Yet his very attempt to conceive
jurisprudence as at once a realistic and
a non-"factual" normative science forces
the raising of these questions. What he
seems to have in mind is that a norm
is the result of interpreting certain kinds
of overt acts, such as those of men who
are interpreted as being judges and leg-
islators, and is thus what those acts
"mean" to their interpreters. But these
"interpretations" and "meanings" may
themselves be interpreted in many dif-
ferent ways. H. L. A. Hart has said that
traditional legal theories fall into three
groups, which interpret legal concepts
as standing respectively for "some un-
expected variant of the familiar," for
fictions, and for supraempirical enti-
ties.46 Now, conceivably, each of these
kinds of theories might be adduced to
explicate Kelsen's view of the legal
norm as a "meaning" of an act: this
meaning might be some sort of intention
or prescription; or it might be the mere
fictional counterpart of the act (fictional
because not a spatio-temporal entity);
or it might be some Ideal Form appre-
hended by the intellect.47 However,
none of these alternatives is open to
Kelsen: he is too normative for the first,
too realistic for the second, and too
positivistic for the third.
More generally, the problem raised
by Kelsen's theory is that of the nature
or status of legal rules in particular, and
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 163
of rules in general. If one does not want
to interpret them as certain kinds of
facts or events-habits, dispositions, or
something else of this sort (and the
problems here include those involved in
the interpretation of scientific laws as
well as containing further, peculiar dif-
ficulties)-what are the alternatives?
Are rules sets of words expressed in the
imperative mood either on certain oc-
casions or habitually? Are they inten-
tions of certain kinds to the effect that
certain kinds of acts shall be performed?
There are difficulties in each of these
views, but at least they do not involve
the profound problems of Kelsen's nor-
mative realism.48
It is also relevant to note here a fur-
ther answer which Kelsen gives to the
question of what is a norm. He criticizes
Austin's definition of law as a command
on the ground that a command is an act
of will, and legal rules "exist, that is
to say, they are valid and obligate indi-
viduals, even if the will by which they
were created has long ceased to be."49
(We might observe parenthetically that
this point would lose much of its force
if "will" be interpreted as signifying a
disposition and not an actual occur-
rence, whereas Kelsen always seems to
mean rather "the actual will of some-
one."50) This objection to Austin is, of
course, in keeping with Kelsen's insist-
ence that legal concepts are different
from psychological ones; for a com-
mand is "a psychic act of will,"5' where-
as, on the other hand, "The 'existence'
of a legal norm is no psychological phe-
nomenon."52 What sort of phenomenon,
then, is it? He now replies that it is a
"depsychologized will"53 or a "depsy-
chologized command."54 Is this, how-
ever, any more illuminating than his
concept of non-psychological meanings
and non-factual interpretations? It ap-
pears, then, that Kelsen's attempt to
distinguish jurisprudence from psychol-
ogy and sociology in terms of the kinds
of entities or "realities" which they re-
spectively treat falls foul of the cate-
gorial problems involved in such dif-
ferentiation, and he is unable to specify
legal norms except in the psychological
and sociological terms from which he
wants to distinguish them.
Similar difficulties attend Kelson's
famous concept of the "basic norm."
This norm he holds to be the presup-
position which underlies all the other,
positive norms of a legal system.55 Such
a norm is required in order to effect the
initial (logical) transition from "is" to
"ought," from fact to norm. For, since
facts do not constitute norms, the acts
which create a constitution do not as
such constitute the legal validity or ob-
ligatoriness of that constitution. "There
must exist one ultimate reason, one
basic norm, which is the source of the
validity of all norms belonging to a cer-
tain legal order."56 This norm is the pre-
supposition or hypothesis that a certain
fact shall be a norm, i.e., that one ought
to obey the commands or precepts of
those who created the original constitu-
tion. The difficulties of this interesting
and important concept have been fre-
quently discussed; its centrality in Kel-
sen's system emphasizes the strong logi-
cal motivation of his theory. For our
present purposes, however, we may cen-
ter attention on his insistence on the
non-historical character of the basic
norm; like the social contract in many
theories, "it is only presupposed by
those who want to interpret certain hu-
man relations as legal relations, or as
relations determined by legal norms.`5'
This conception of the basic norm in-
volves Kelsen in a dilemma similar to
that discussed above in regard to norms
164 ETHICS
in general. If, on the one hand, he
wishes to give a "realistic" interpreta-
tion of the basic norm, then it must be
held to consist in acts of acceptance or
"wanting to interpret" on the part of
individuals or groups- but these acts
are psychological and sociological phe-
nomena; so that norms are reduced to
social facts. If, on the other hand, he
wishes to avoid this non-normativism,
then he has to give up the "realistic,"
descriptivist characterization of his ju-
risprudence, for he has provided for no
entities different from factual ones to
serve as the referents of his normative
sentences. This latter alternative, of
surrendering a "realistic" interpretation,
is indeed strongly suggested by his view
of the basic norm as having "a merely
formal character,"58 but he does not ex-
tend this to his view of the whole legal
system. For, after all, there are definite
acts and institutions correlated with the
latter, as against the basic norm.
Let us now turn to Kelsen's theory
of the legal validity of norms, and his
attempt to differentiate it from legal
efficacy. He holds that sociological ju-
risprudence deals only with the efficacy
of law, not with its validity.59 Efficacy
refers to the actual observance of a law:
if an individual observes a law, then
that law is efficacious (or effective) for
him. But jurisprudence "cannot dis-
pense with the concept of validity as a
different concept from that of efficacy if
it wishes to present the specific sense of
'ought' in which the norms of the law
apply to the individuals whose conduct
they regulate. It is this 'ought' which
is expressed in the concept of validity
as distinguished from efficacy."0 The
validity of a law, then, is its obligatori-
ness, and this directly derives not from
the fact that an individual actually ob-
serves the law (for he may not, so that
the law is not efficacious in his case, yet
it may still be valid) but rather from
the place of that law within the legal
order. In this way, to say that the law
is valid is the same as to say that it
exists: "The 'existence' of a norm is its
validity."' But "The existence of a
norm, its validity, as pointed out, is dif-
ferent from the existence of a fact, and
this difference should always be borne
in mind."62 Thus far, Kelsen is speaking
as a normativist: the legal "ought," va-
lidity, must be distinguished from the
sociological "is," effectiveness. But when
he comes to establish the ultimate basis
of this "ought," his positivism comes to
the fore, and this entails that the valid-
ity and effectiveness which he had previ-
ously distinguished now are in fact iden-
tified. For a particular law is valid if it
derives from a valid constitution, and
"the constitution is valid only if the
total legal order, according to the gen-
eral basic norm, is effective."63 Now,
this "only if" still leaves open the possi-
bility that the effectiveness of the total
legal order is only the necessary condi-
tion, but not the reason (or, as Kelsen
also put its, the condition sine qua non,
but not the conditio per quam) of the
validity of the constitution.64 What,
then, is this reason? It is, of course, the
basic norm. But then, it turns out that
the basic norm underlying the validity
of the constitution is the effectiveness,
the fact of being generally observed, of
the legal order to which the law and
constitution belong: "The principle of
effectiveness is the general basic norm
that juristic thinking assumes whenever
it acknowledges a set of norms as the
valid constitution of a particular
state."65 In other words, validity is con-
stituted by effectiveness, not as such, to
be sure (for no "is" can by itself yield
an "ought"), but in virtue of the basic
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 165
norm assumed by jurisprudents. Hence,
their syllogism would be the following:
If a set of norms in a particular state is
effective, then it is valid; but this set of
norms in this particular state is effec-
tive; hence it is valid. But if this is so,
then it follows that, on Kelsen's view of
the basic norm, the "ought" of the legal
norm is after all derived from the "is"
of actual observance, and consequently
it is difficult to see how jurisprudence
can be distinguished from sociology as
Kelsen intends it to be.
This fusion of validity with effective-
ness has the further positivist conse-
quence that legal obligation is defined
solely in terms of behavioral fact. Kel-
sen formulates "the general basic norm"
for the validity of a constitution as fol-
lows: "men ought to behave in conform-
ity with a legal order only if this legal
order is effective."" But just previous-
ly he has defined "effective" as follows:
"That a legal order is 'effective' means
that the organs and subjects of this or-
der by and large behave in accordance
with the norms of the order." Putting
this definition of "effective" for this
term's occurrence in the formulation of
the general basic norm given just above,
the latter turns out to be saying that
men ought to behave in conformity with
a legal order only if they by and large
do behave in conformity with it!
What Kelsen intends here is rela-
tively plain. He wishes to give a "purely
juristic" formulation of legal validity,
and this requires, as he sees it, that
he refrain from grounding the obligation
to obey law on any set of moral or other
extra-legal considerations. Presumably,
he feels that if the jurist appeals to any
even prudential considerations as cri-
teria for regarding a set of laws as valid,
this will introduce alien elements into
his jurisprudence. But this seems to
leave nothing as the basis of de jure
validity except the de facto observance
of the law itself. The "juristic thinker,"
in order to determine the validity of a
set of laws, cannot go beyond the ques-
tion of whether the set is "by and large"
actually observed. But, entirely apart
from the facts that many legal thinkers
have in the past adduced other criteria
for the validity of positive laws, and
that these criteria have entered into the
fabric of men's thinking and attitudes
toward laws, does not Kelsen's own
formulation avoid the Scylla of basing
legal validity on morality only by run-
ning into the Charybdis of basing it on
the sociological fact of effectiveness?
I conclude, then, that while Kelsen
succeeds in differentiating his juris-
prudence from sociology in respect of
the logic of their respective proposi-
tions, he does not succeed in making a
corresponding categorial differentiation
in the subject-matters or entities dealt
with by the two disciplines. Insofar as
law is a system of norms, it has a
"logic" distinct from that of other social
institutions; moreover, law itself as a
social institution is different from other
social institutions. Yet these differences
are proximate only; it is the difference
between the procedures of legislators,
judges, advocates, and the like on the
one hand, and the procedures of preach-
ers, teachers, friends, parents, journal-
ists, etc., on the other. All of these rep-
resent social institutions operating by
empirically ascertainable means which
are generically similar to one another;
there is no unique kind of "legal reality"
different from other social realities.
Apart from logical considerations, the
commands, interpretations, decisions,
observances which are involved in law
are procedures describable in the same
psychological, sociological, and political
166
ETHICS
terms as other social processes. Over
and above these, there are no uniquely
different kinds of specifically legal en-
tities. At each of the crucial points of
his theory, Kelsen does indeed attempt
such a differentiation: of the creative
act from its meaning in the case of the
norm, of the wish to interpret from the
legality of what is interpreted in the
case of the basic norm, of effective ob-
servance from legal existence in the case
of validity. But these attempts are not
successful; and the reason for this is
that to make such a differentiation in
the way intended by Kelsen requires the
elucidation of an ontological category
distinct from that of positive facts, par-
allel to his epistemological differentia-
tion of imputation from causality; but
he has not succeeded in elucidating such
a category.
Let us now turn to the other main
strand of Kelsen's attempt at a pure
jurisprudence.
LEGAL POSITIVISM AND ETHICS
The twofold problem which con-
fronts every positivist legal theory is
that of how to specify its subject-matter
so that it is kept distinct from justice
or morality at one extreme and from
mere power or force at the other. This
problem, like the one dealt with in the
preceding section, is categorial in that
it concerns ultimate kinds or differ-
ences; and Kelsen's development of his
positivist jurisprudence shows an
awareness both of the double aspect of
the problem and of its categorial fea-
tures. Let us begin, then, by considering
briefly the main lines of his differentia-
tion of jurisprudence from ethics. It is,
of course, the case, as we saw in the
preceding section, that jurisprudence
and ethics are viewed by Kelsen as
being alike in a
very important respect:
both, as well as theology, are "norma-
tive social sciences," in the sense that
they are "sciences which interpret hu-
man relations not according to the prin-
ciple of causality but according to the
principle of imputation-sciences which
deal with human behavior not as it ac-
tually takes place as cause and effect
in the sphere of reality but as it ought
to take place, determined by norms."67
It is hence within the genus of norma-
tive sciences that Kelsen makes the dif-
ferentiation between his positivistic ju-
risprudence and ethics.
This differentiation has three main
parts. In the first place, ethics and juris-
prudence differ in their subject-matters.
The subject-matter of ethics is moral-
ity; of jurisprudence, law; of theology,
religion. Now all of these subject-mat-
ters are social orders consisting in rules
or norms for human behavior. They are
very different, however, in the means
which they use for achieving adherence
to their respective norms. For example,
all three may prohibit murder, but "the
great distinction still remains, that the
reaction of the law consists in a meas-
ure of coercion enacted by the order,
and socially organized; whereas the
moral reaction against immoral conduct
is neither provided by the moral order,
nor, if provided, socially organized.""
And as against both of these, "the sanc-
tions which the religious norms lay
down have a transcendental character;
they are not socially oganized sanc-
tions, even though provided by the reli-
gious order." In the second place, eth-
ics69 and jurisprudence differ in their
methods. Unlike ethics, jurisprudence is
solely descriptive or cognitive; it makes
no moral judgments. This moral neu-
trality applies both to the subjects and
to the predicates of jurisprudential
propositions, i.e., both to the concept
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 167
of law itself and to the statements which
jurisprudence makes about law. "As
used in these investigations, the concept
of law has no moral connotation what-
soever. . . .The problem of law, as a
scientific problem, is the problem of so-
cial technique, not a problem of mor-
als. The statement: 'A certain social
order has the character of law, is a legal
order,' does not imply the moral judg-
ment that this order is good or just."70
Similarly, jurisprudence refrains from
evaluating laws as just or unjust: "As
a science, its sole purpose is to know
its subject. It answers the question
what law is, not what it ought to be."'1
Like every other scientist, the juris-
prudent "must neither approve nor dis-
approve of the object of his analysis."72
In the third place, as a consequence of
this second difference, ethics and juris-
prudence differ as to the epistemological
status of their respective judgments.
For the contents of positive law are
objectively verifiable, in that empirical
study of a positive legal system can dis-
close what is permitted, prohibited, and
prescribed within it. But in the case of
a moral norm, "the existence and con-
tents of this norm cannot be verified
by facts. It is determined only by the
wish of the subject making the judg-
ment. '7
Since I shall want to deal mainly
with the first two ways in which Kelsen
differentiates ethics from jurisprudence,
I shall discuss the third more briefly
now. It is not easy to be clear about
Kelsen's views on this vexed problem.
As the last quotation suggests, he has
a rather unsubtle version of an emotivist
theory of moral judgments as being
"determined by emotional factors, and,
therefore, subjective in character-val-
id only for the judging subject, and
therefore relative only."74 Conflicts of
moral values, he holds, cannot be de-
cided "in a rational scientific way. It
is, in the last instance, our feeling, our
will, and not our reason; the emotional,
and not the rational element of our
consciousness which decides this con-
flict."75 But what Kelsen means by this
emotivist-subjectivist-relativist position
is by no means clear; nor is it clear
whether he regards the position as a
self-evident premise or as a conclusion
to be proved. Sometimes he seems to
think that it is proved by the mere fact
that men disagree in their moral judg-
ments;76 yet, he also says that "The
fact that there are certain values gen-
erally accepted in a certain society in
no way contradicts the subjective and
relative character of these judgments
of value-."77 Sometimes he contrasts
legal with moral judgments in respect
of verifiability, in that the judgment
that an act is legal or illegal is objec-
tively verifiable, while the judgment
that an act is morally good or bad is
not. But his argument here is not at all
conclusive. For the sense in which he
holds a legal judgment to be objectively
verifiable is an admittedly relativistic
one, viz., that such a judgment can be
tested by reference to the legal system
in relation to which the allegation of
legality or illegality is made: "The
statement that a certain human behav-
ior (or a certain act of state) is legal or
illegal may be true or false; it is veri-
fiable by experience. Such a statement
is possible only with respect to a definite
national, or the international, legal
order."78 But are not moral judgments
verifiable in the same relative sense-
i.e., with respect to a definite set of mor-
al principles? The crux of the matter
seems to be that, while Kelsen admits
various relativities in his conception of
the verifiability of factual judgments,
168
ETHICS
his conception of the conditions under
which moral judgments would be re-
garded by him as "objective" is ab-
solutistic. It is a conception of "an
absolutely correct standard of human
behavior, and that means a standard
of human behavior as the only just one,
excluding the possibility of considering
the opposite standard to be just too."79
This absolutistic view is also expressed
in his defense of "philosophical rela-
tivism" when he says: "That value
judgments have only relative validity,
one of the basic principles of philo-
sophical relativism, implies that oppo-
site value judgments are neither logi-
cally nor morally impossible."80 But do
not factual judgments likewise have
such a truth status that their opposites
"are neither logically nor morally im-
possible"? As with many other expo-
nents of the views he presents, Kelsen
seems not to have investigated suffi-
ciently the sense in which factual judg-
ments involve relativities similar to
those of moral judgments, and the sense
also in which the admission of such rela-
tivities does not require the admission
of a "subjective" or "emotional" basis
in either case.
Before going into the substantive
issues,
we must note another meth-
odological point. There is a difficulty
about the way in which Kelsen's posi-
tivist definition of law is related to his
positivist method. The method, as he
describes it, has two elements: a linguis-
tic element whereby he looks to the (in-
tensional) meaning which the word
"law" has had in the past, and an em-
pirical element whereby he looks to the
referents designated by this meaning:
"Any attempt to define a concept must
take for its starting-point the common
usage of the word, denoting the con-
cept in question."' "From a comparison
of all phenomena which go under the
name of law, it seeks to discover the
nature of law itself, to determine its
structure and its typical forms. . ..82
"In defining the concept of law as a
coercive order, that is to say as an order
prescribing coercive acts as sanctions,
the Pure Theory of Law simply accepts
the meaning that the term 'law' has as-
sumed in the history of mankind."83
And, as the last quotation indicates,
Kelsen holds that as a result of applying
this positivist method, he has obtained
the positivist definition whereby "the
word 'law' . . . refers to that specific
social technique of a coercive order
which ... consists in bringing about the
desired social conduct of men through
threat of coercion for contrary con-
duct."84
It seems clear, however, that Kelsen's
definition of law is by no means the
consequence of the method he describes.
Since he himself emphatically recog-
nizes that men in all ages have appealed
to a "law of nature" which is not a
positive coercive social order such as he
defines "law" to mean, how can he
claim to have obtained his definition
from "a comparison of all phenomena
which go under the name of law"? If it
be held that natural law is not a "phe-
nomenon," there are the laws of chess,
of polite society, of morality, etc. Austin
was on much sounder ground when he
pointed out that there are objects with
which positive laws "are connected by
ties of resemblance and analogy; with
which they are further connected by
the common name of 'laws.'. .
."185 It is
not, then, by a purely positivist method
that Kelsen has obtained his positivist
definition of law. The definition should
be regarded rather as the result of a
selective study both of the various ways
in which "law" has been used and of
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 169
the kinds of considerations which Kel-
sen wishes to stress in his own theory.
Here at least the beginnings of the
theory underlie the definition, rather
than conversely.
As we have seen, Kelsen defines law
as "that specific social technique of a
coercive order which . . . consists in
bringing about the desired social con-
duct of men through threat of coercion
for contrary conduct."86 Let us now
consider the first of the two problems
which we have said confronts all posi-
tivist legal theories. All such theories,
including Kelsen's, are marked by the
omission of any moral component from
their conception of law. How, then, is
he able to distinguish law from gangster
force and threats, and legal relations
from relations of mere power? That
Kelsen is aware of, almost preoccupied
by, this question is suggested by the
frequency with which he recurs to it.7
After all, do not gangsters also threaten
coercion for contrary conduct? Kelsen's
answer is that gangster threats are not,
and parliamentary statutes are, based
on the constitution; and this basis dis-
tinguishes valid from invalid norms.
And if one asks why being based on the
constitution is the criterion of validity,
the answer is ultimately because of the
"basic norm" which is "presupposed by
those who consider the establishment
of the first constitution and the acts per-
formed in conformity with it as law-
creating acts."88 As this suggests, the
basic norm is entirely hypothetical: it
is what must be presupposed if one is
to consider rules as valid laws. "If the
historically first constitution, and the
norms issued on this basis, are to be
considered as legally binding norms,
then a norm must be presupposed to the
effect that one ought to behave in con-
formity with the historically first con-
stitution. This norm is the basic norm
of a national legal order."89 Or as he also
puts it: "The norm that we ought to
obey the provisions of the historically
first constitution must be presupposed
as a hypothesis if the coercive order
established on its basis and actually
obeyed and applied by those whose be-
havior it regulates is to be considered
as a valid order binding upon these in-
dividuals; if the relations among these
individuals are to be interpreted as legal
duties, legal right, and legal respon-
sibilities, and not as mere power rela-
tions; and if it shall be possible to dis-
tinguish between what is legally right
and legally wrong and especially be-
tween legitimate and illegitimate use of
force. This is the basic norm of a posi-
tive legal order....""
What Kelsen is saying, then, is that
law can be distinguished from mere
power only if we "presuppose" that one
"ought" to obey the former. But does
this not beg the question? Does it say
more than that a coercive rule is to be
"considered" legal only if we "presup-
pose" that it is legal? The problem is
particularly acute in that Kelsen speci-
fies no criteria for whose desire to "con-
sider" a rule as a valid law is to be taken
into account-for this might involve
him in moral questions. Instead, he falls
back on the principle of effectiveness:
"This presupposition, however, is not
arbitrary. As a matter of fact, we pre-
suppose that we should behave as those
who established the constitution ordered
us to behave, if the legal order estab-
lished on the basis of this constitution
is by and large effective. This is the
principle of effectiveness implied in the
basic norm."91 But this completes the
circle, for Kelsen is now saying: If law
is to be distinguished from mere power,
then we must presuppose a norm imply-
170
ETHICS
ing this distinction; and if this norm
is to be accepted, then the law in ques-
tion must be effective, i.e., generally
accepted. But, entirely apart from Kel-
sen's lack of specification of criteria for
when a legal order is or is not effective
-for such specification would take him
back into sociological questions and
hence remove the purity of his concept
of law-is not Kelsen saying, as we saw
in the preceding section, that a coercive
rule is a law, i.e., a norm which ought
to be obeyed, only if it is obeyed?
Would not general obedience to a gang-
ster threat likewise constitute the latter
as "law"?
One of the things Kelsen seems to
have in mind here also is that law is
distinguished from gangster threat as
the usual from the unusual: the gang-
ster threat is not "by and large" effec-
tive.92 But what if the gangsters seized
power and made their threats effective?
It need hardly be emphasized in the
present century that this is not merely
an academic question.
The problem is not, of course, a
simple one. In trying to avoid the nat-
ural-law doctrine that unjust laws are
not laws at all, Kelsen seems to feel that
only de facto effectiveness can be used
as criterion of legality. As a conse-
quence, however, he has not made good
his claim to differentiate legal from
power relations in any other than a
question-begging way. Such differentia-
tion cannot be made by the purely for-
mal means which are the only ones he
explicitly adduces in dealing with this
question; it requires moral and sociolog-
ical criteria which his purist approach
to law precludes him from applying.
Thus far we have been considering
some of the consequences of Kelsen's
positivistic resolve which leads him to
say that in his theory "the concept of
law has no moral connotation whatso-
ever."93 We have taken this statement
at face value and have seen how it
makes impossible the differentiation of
legal from power relations. But of
course the concept of "moral connota-
tion" is a highly complex one. The chief
meaning it seems to have for Kelsen
is that of "a judgment of value referring
to an ultimate end" and "subjective in
character,"94 so that to introduce "moral
connotations" into the definitions or
propositions of his theory is to render it
unscientific. But what if a legal theory
undertakes to consider the basic human
needs or purposes which law serves in
society, and the traits and limitations
which law must have in order to serve
these needs most effectively? Now these
considerations are "moral" in Kelsen's
own view insofar as they refer to what
in one sense are ultimate ends. And the
fact is that he engages rather exten-
sively in such considerations. That he
does so, moreover, is not accidental to
his "pure theory," but rather essential.
From this it follows that Kelsen is un-
able to maintain his positivist resolve
of a "value-free" legal theory which
"must neither approve nor disapprove
of the object of his analysis."95 And this
also means that, despite his extensive
criticisms of the natural-law tradition,
Kelsen's own theory fits within that
same tradition.
First, we must note Kelsen's theory
about natural law. As a positivist, he
holds traditional natural law theories
in much disdain. He repeatedly declares
that all of them are "based on the logi-
cal fallacy of an inference from the 'is'
to the 'ought.'
1196 This is because they
all rest on the assumption "that it is
possible to deduce from nature, that is
to say from the nature of man,
from the
nature of society, and even from the
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 171
nature of things certain rules which pro-
vide an altogether adequate prescrip-
tion for human behavior, that by a care-
ful examination of the facts of nature
we can find the just solution of our
social problems."97 Now I have no
space here to go into the detailed logi-
cal and historical study that would be
required to test the adequacy of Kel-
sen's prolonged discussions of the nat-
ural law tradition.98 Fortunately, that
is not necessary for my present pur-
poses. What is common to the natural-
law tradition from the Greeks onward
is not a logical procedure of inferring
"ought" from "is" nor an epistemologi-
cal procedure of appealing to self-evi-
dent truths. It is rather a concern with
a question which may be put in ways
such as the following: What are the
necessary preconditions of positive
laws? Are there any limits to the free
creativity of those who "make" laws?
Are there any laws of laws, or rules of
rules, i.e., any limits to the degrees with-
in which laws may vary and yet still
be laws? Now partly, of course, this
question involves purely logical and
linguistic considerations as to how one
"defines" law. But two other kinds of
considerations which have also entered
into the determination of this question
have been at the center of the natural-
law tradition. These considerations have
been moral and factual ones. Natural-
law thinkers have been concerned to
determine the moral limits which cannot
be transgressed by positive laws if they
are to be just, and the factual limits
which cannot be transgressed if they
are to be effective. One of the reasons
why some strands of the tradition have
fused these two kinds of considerations
has been that certain traits of man have
appeared so compelling both factually
and morally that to transgress them
would render positive laws at once un-
just and ineffective. These traits have
included men's desires for self-preserva-
tion and for various kinds of inter-per-
sonal relations, including those of the
family and of society. And these con-
siderations have been called "natural"
because they have appealed to the na-
ture of man or to the nature of morality
or
justice,
i.e., to what was inherently
good or just as against what was con-
ventional or posited or arbitrary or
derivative.
Now whenever a legal thinker begins
to reflect on the moral purposes for
which laws are instituted or the factual
limits which they cannot transgress, he
is, in the sense just presented, a natural-
law thinker. And this is what Kelsen
does. That he does so, moreover, is not
accidental or inadvertent on his part;
it derives rather from such essential
parts of his pure theory as that wherein,
as we have seen, he undertakes to differ-
entiate "legal relations" from "power
relations." For this involves reference
to the "basic norm" whereby men "con-
sider" a rule as a law and not as a
gangster threat; and Kelsen has at least
implicitly to recognize that men will
thus "consider" only if certain of their
basic needs or ends are fulfilled. These
needs or ends are the moral and factual
conditions of positive law-the condi-
tions of a just social order. In setting
forth these conditions, therefore, Kelsen
is propounding a natural-law theory of
his own. That this is what he is doing
is obscured by the fact that, true to his
positivist aim of ethical neutrality, he
prefers to talk about "legal technique"
and to contrast "developed" with "prim-
itive" techniques, as if he were dealing
with purely technical questions. But
questions of law are not technical pre-
cisely where they touch on basic human
172
ETHICS
needs and moral convictions; and this
in fact is what Kelsen does. Since this
part of Kelsen's theory has received
very little attention, and since the issues
in question are quite important in them-
selves, I shall now indicate the main
lines of the natural-law theory pro-
pounded by Kelsen.
The theory is concerned with the re-
quirements, static and dynamic, of a
just social order. To begin with, Kelsen
considers the question of the very possi-
bility of a human community. "A com-
munity, in the long run, is possible only
if each individual respects certain inter-
ests-life, health, freedom, and prop-
erty of everyone else-that is to say,
if each refrains from forcibly interfer-
ing in these spheres of interest of the
other."99 We might ask at once about
the meaning of this statement. Is it
meant to be a summation from histori-
cal experience? But there have been
many periods, including the present,
when "each individual" has not re-
spected the life, health, freedom, and
property of "everyone else." Ancient
despotisms and Greek city-states, the
Roman empire, medieval feudal sys-
tems, modern industrial cities, recent
and contemporary totalitarianisms-
these and many others have been com-
munities in which the health, freedom,
property, and even the lives of sizeable
numbers of the population have been
"forcibly interfered with" by rulers,
masters, employers, and others. Would
Kelsen say, then, that these have not
been "communities"? But this surely
would be to reveal the value-loaded
quality of the word, and would contrast
markedly with his insistence on a purely
positivistic use of the word "law."
Would he say that these communities
have not involved "forcible interfer-
ence" in the interests enumerated? It
would be difficult to defend this on any
common usage of these words. Would
he say that these communities have not
survived "in the long run"? The ques-
tion would then be, How long? Some
such communities have survived for
centuries. It seems to remain, then, that
Kelsen has here given us his conception
of the minimal requirements for a just
community-namely, that in it certain
basic interests of each individual are
respected.
His next step is to show how law func-
tions in such a community. "The social
technique that we call 'law' consists in
inducing the individual, by a specific
means, to refrain from forcible interfer-
ence in the spheres of interests of oth-
ers: in case of such interference, the
legal community itself reacts with a like
interference in the spheres of interests
of the individual responsible for the
previous interference."'100 Law operates,
then, as a coercive instrument for en-
suring respect for each individual's
basic interests, an instrument ultimately
wielded by the community itself in or-
der to preserve the conditions that ren-
der it just. It is to be noted that this
conception of law too is not morally
neutral: law is not any coercive rule of
any kind of community, but rather the
coercive order of a just community, act-
ing as a means of avoiding what is "so-
cially harmful" and hence of assuring
"peace." As Kelsen goes on to say, the
result of the operation of law as he has
depicted it is that "definite spheres of
interest of the individual are protected.
As long as there exists no monopoly of
the community in forcible interference
in the spheres of interest of the indi-
vidual, that is to say, as long as the
social order does not stipulate that forci-
ble interference in the spheres of inter-
est of the individual may only be re-
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 173
sorted to under definite conditions-
namely, as a reaction against socially
harmful interference in the spheres of
interest of the individuals, and then only
by stipulated individuals-so long are
there no spheres of interest of the indi-
vidual protected by the social order. In
other words, there is no state of law,
which, in the sense developed here, is
essentially a state of peace.""10 Law,
then, is not a weapon whereby a ruling
class makes war on its subjects for its
own interests; it is rather a weapon for
attaining what is socially beneficial,
namely, a state of peace wherein each
individual is secured in his rights or
interests. Kelsen's position is here close
to that of Interessenjurisprudenz.102
Let us ask now why Kelsen has pro-
ceeded by reference to these moral fea-
tures, these basic human needs. Why
couldn't he, in accordance with his ge-
neric definition of law in terms of coer-
cive 'order," have said simply that all
communities must have a certain mini-
mum of order or stability, and that law
operates to assure this minimum, re-
gardless of the further ends which might
be achieved thereby? There are several
points to be made in reply. First, even
this reference to order would introduce
considerations which, strictly speaking,
are extra-legal, since they would be ex-
plaining the order which is law by refer-
ence to the wider social order which law
is intended to preserve. Secondly, there
is a continuity rather than a divergence
between the explication of law by refer-
ence to the end of order and Kelsen's
explication of it by reference to the end
of security of basic interests. Whenever
a legal (or political) thinker begins to
discuss law in terms of its relation to
purposes wider than those of a purely
egocentric ruler or legislator, he cannot
avoid considerations of the type which
Kelsen shares with the natural-law tra-
dition. Thirdly, it must not be forgotten
that the concept of "order" is itself
complex. For one thing, it is a relative
kind of thing: what was order to the
Soviet leaders was disorder to the "ku-
laks," and what was order to the Nazis
was disorder to the Jews. But one might
still argue that order at least involves
predictability, so that even though some
groups in a community may feel them-
selves unjustly treated, nevertheless the
legal order determines where they stand
in respect to behavior permitted or pro-
hibited, and indeed it defines what their
legal "interests" are. This view, how-
ever, would entail surrendering the at-
tempt, which Kelsen has made, to ex-
plicate law in terms of interests, since
it defines the interests in terms of law.
Something like this latter, in fact, is
what Kelsen should have done103 in or-
der to remain strictly within a "pure"
theory of legal positivism; for on such
a theory, as he has rightly emphasized,
one cannot go "outside" law to any ele-
ments "foreign" to it. But to define law
in terms of "interests" whose content
is definable or determined independ-
ently of law is, precisely, to proceed by
reference to values which are "outside"
law. To do the opposite, moreover,
would also be to remove the distinc-
tion between legal relations and power
relations, since on the view in question
law would be simply a coercive order
taking no necessary account of men's
attitudes or interests in respect to that
which threatens them with coercion.
As we have traced them so far, then,
Kelsen's conceptions of the commu-
nity and of law are quite definitely anti-
totalitarian. The states which allow
either their officials or other citizens to
attack the life, health, freedom, and
property of their inhabitants are not
174
ETHICS
"communities" in Kelsen's sense; nor
are their rules permitting such attacks
"laws." Consequently, Kelsen does not
live up to his positivist claim104 to de-
fine and discuss "law" with such moral
neutrality that he encompasses in a
single theory both liberal democratic
laws and the laws of the Nazi, Fascist,
and Bolshevist regimes. Moreover,
again like natural-law theories, he
grounds his conception of law on basic
traits of human nature. Commenting on
the anarchist doctrine which denies the
need for coercive law, he says that this
doctrine "ignores the innate [a natural
law word] urge to aggression in man.
It ignores the fact that the happiness of
one man is often incompatible with the
happiness of another, and that there-
fore a natural just order that guarantees
happiness to all, and so does not have
to react against disturbances with meas-
ures of coercion, is not compatible with
the 'nature' of men as far as our knowl-
edge of it goes."105 Kelsen's own theory,
then, is based on "the nature of men as
far as our knowledge of it goes"-and
this is the traditional basis of most nat-
ural-law theories.
It is to be noted that, in proceeding
in this way, Kelsen is not necessarily
drawing the inference from "is" to
"ought" which he says underlies all tra-
ditional natural-law theories. The infer-
ence is not simply from "man is by na-
ture aggressive" to "there ought to be
laws preventing forcible interference in
others' interests." It is rather a hypo-
thetical, or means-end, imperative,
where laws are shown to be a means of
curbing man's natural aggressiveness
which, if uncurbed, would make a com-
munity impossible. Not the fact or "is"
alone, then, but this together with an
end or "ought" like the survival of the
community, supplies the premises from
which follows the "ought" of the need
for coercive laws. Most natural-law
theories have been of this form, which
has sometimes been concealed because
the end, or "ought," was considered so
obvious that it needed no explicit state-
ment. Whether the "natural" facts
which they have adduced were correct
or not is a further, empirical question;
yet Kelsen's reference to man's "nat-
ural" aggressiveness has a long lineage
in such theories.
A further step in Kelsen's theory of
natural law comes in his discussion of
the extension of the legal sanction.
Since law, as a coercive instrument for
preventing interference with an individ-
ual's interests, operates by inflicting
sanctions or penalties for the delict
which constitutes such interference, the
question arises whether the responsibil-
ity for the delict attaches only to the
individual who committed it or also to
the group (family, tribe, etc.) to which
the individual belongs. This is the alter-
native of individual responsibility or
collective responsibility. Kelsen's an-
swer clearly pin-points the moral aspects
of this alternative. "It corresponds to
a more refined sense of justice which
will direct the sanction only against
those whose behavior constitutes the
legal duty . . . the punishment is to be
directed against the murderer and only
the murderer. . . .10 In the General
Theory, he writes that this principle of
individual responsibility is "the law of
civilized peoples."107 Now these refer-
ences of Kelsen to "justice" and "civi-
lization" correspond to traditional em-
phases of natural law writers. The
"sense of justice" goes back at least to
Aristotle's concept of man as alone
having atauO7ats 5KaaovLou
18 which the
Stagyrite adduces as proof that man is
"by nature" a political animal. And the
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 175
contrast between "civilized" and "bar-
baric" practices is found among the
Greeks, the Romans, and later thinkers
as a touchstone of natural law.
However, in the same paragraph, Kel-
sen also presents this distinction be-
tween individual and collective respon--
sibility in another way which he seems
to employ because it is more value-
neutral. This other way is by the dis-
tinction between the "technically primi-
tive" and the "technically developed":
"Against whom is this (legal) sanction
to be directed? . . . In accordance with
the answer to this question, the techni-
cally primitive legal order is to be dis-
tinguished from the technically devel-
oped legal order." He goes on to refer
also to "the more refined legal tech-
nique.'09
Now these are somewhat
curious expressions. Surely, Kelsen does
not mean by "technically primitive"
that which is temporally earlier. The
fact is that recent and contemporary
totalitarian regimes have practiced the
principle of collective responsibility
which Kelsen here ascribes to "techni-
cally primitive" legal orders. In what
respect, then, is this principle "techni-
cally primitive"? A possible answer may
be found in his further statements that
"Primitive man identifies the individual
with his group-with all members of
it.... Collective responsibility is a typi-
cal element of the state of justice in
which the principle of self-help still sub-
sists. Blood revenge, that typical form
of self-help, is by no means directed
only against the person who has com-
mitted the deed to be avenged, but
against his whole family."110 Since, as
Kelsen has emphasized, law is an order
in which only socially organized coercion
by the community is permitted, and this
order is antithetical to the "self-help"
whereby each aggrieved individual or
group takes into its own hands the visit-
ing of sanctions for harms inflicted
against it, the connection of the principle
of collective responsibility with such
self-help would prove the "technically
primitive" character of that principle.
But does it? There are at least two im-
portant arguments against this conclu-
sion. In the first place, the relation
between self-help and collective respon-
sibility is not necessarily one of mutual
implication: even if self-help is always
accompanied by collective responsibil-
ity, collective responsibility is not al-
ways accompanied by self-help. The
totalitarian regimes which have operated
on the principle of collective responsibil-
ity are not, in Kelsen's sense, examples
of self-help. Consequently, one cannot
establish the "primitiveness" of collec-
tive responsibility on the grounds of its
presumably being necessarily accom-
panied by self-help. In the second place,
even if in calling the principle of col-
lective responsibility "technically primi-
tive," Kelsen means that it is a less artic-
ulated system than that of individual
responsibility, this does not necessarily
involve that the former is less efficient
as a means of pacifying the community
(which he has declared to be an impor-
tant effect of law)."' It is only when
we take account of men's "sense of jus-
tice," and with it of the concept which
Kelsen rightly denies that primitive man
has, of man "as a self-sufficient individ-
ual, different from and independent of
his group,"'12 that we can reject the
principle of collective responsibility.
Not technical legal development in any
"pure" sense, but conceptions of ethics
and of human nature in its social rela-
tions, provide the grounds for this rejec-
tion.
Similar considerations apply to the
following stage of Kelsen's natural-law
176
ETHICS
theory. He here distinguishes, within the
sphere of responsibility, between the
principles of absolute liability and cul-
pability. According to the former, respon-
sibility involves solely the connection
between conduct and result, no consid-
eration being given to any "mental" fac-
tors of intention or negligence. Accord-
ing to the culpability principle, these
factors are considered. And it is the
latter which Kelsen supports. "To be
responsible for a socially harmful or a
socially useful result, it does not suffice,
according to modern, ethical views, for
the result to have been brought about by
one's own conduct. The result must have
been brought about in a definite man-
ner . . . certain mental elements called
'culpa' must be present."Y113 Apart from
this invocation of "modern, ethical
views," however, Kelsen does not ampli-
fy the grounds on which he prefers cul-
pability to absolute liability, although
he does indicate that these are closely
connected with his preceding alternative
of individual and collective responsibil-
ity, respectively. There are, of course,
multiple arguments in both ancient and
modern moral philosophies for the re-
striction of responsibility for an act to
persons who intended as well as per-
formed it. Instead of discussing these,
however, Kelsen resorts again to his dis-
tinction between the "primitive" and the
"developed": the principle of culpability
"is unknown to primitive legal orders;
there the principle of absolute liability
prevails.... The technical development
of the law is characterized by progress
not only from collective to individual
responsibility, but also from absolute
liability to culpability."114 But here too
Kelsen does not explore the relation be-
tween this "technical development" and
"modern, ethical views," nor does he
indicate why it is in the movement from
absolute liability to culpability
that the
direction of technical development and
"progress" lies. After all, contemporary
totalitarianism are characterized by the
principle of absolute liability, and, as
Kelsen himself points out, "Even in
modern legal orders the principle of col-
lective responsibility and that of abso-
lute liability have by no means been
given Up."1115
There is not space here to go into the
many other components of Kelsen's
natural-law theory, but two of them de-
serve special mention. One is his defense
of the genuine "legality" of public law.
There is a view (found, for example, in
a Marxist like Pashukanis116 although it
goes back to Hobbes and others) which
sets public and private law in contrast by
the consideration that the former deals
only with "power" relations and not, as
does private law, with "legal" relations.
The basis of this view is that the relation
between the state and its subjects, which
is regulated by public law, is a relation
between superior and inferior, so that
the state, the superior, is not itself sub-
ject to public law. On the other hand, the
relation among the subjects themselves,
which is regulated by private law, is a
relation among equals, and hence is not
a "power" relation but a "legal" relation.
In rejecting this contrast, Kelsen pre-
sents an alternative position whose his-
tory goes back to the natural-law doc-
trines which emphasized the subjection
of the king or government to the law,
including the positive laws of the state.
"The state as a legal person can be con-
ceived of only as subjected to the law
like all other persons; and a relation
between legal persons established by the
law can be conceived of only as a legal
obligation or a legal right one person
has in relation to another. It can, there-
fore, not be conceived of as a 'power'
relation but only as a legal relation, that
is to say, as a relation between subjects
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 177
equally subjected to the law establishing
the obligation or the right, whatever
their content may be."'117 Now, in spite
of the "logical contradictions" referred
to by Kelsen as besetting those who deny
this position, it is perfectly possible to
conceive the state, i.e.. the government
as the state's organ, as above the laws in
the sense that in its relations to its sub-
jects it is not bound by the same general
requirements which it imposes on its
subjects and it can change those require-
ments at will. Surely the long history of
protests by natural-law writers against
rulers who set themselves above the law
is characterized, not by logical, but by
moral arguments: the doctrine that the
state's relation to its subjects is a power
relation is not illogical or contradictory,
but rather immoral. The basis of this
immorality is clearly indicated by Kel-
sen: "If public law, especially the norms
regulating the jurisdiction of the organs
of the state, is not law in the strict sense
of the term, the government is not bound
by these norms as a private subject is
bound by the law. The government may
then always act as it considers it politi-
cally expedient, even if such action is
not authorized by the law."'18 But what
Kelsen goes on to say is that the doctrine
he is rejecting "is not a scientific theory;
it is a political ideology." Here, as in his
discussions of the issues between collec-
tive and individual responsibility, and
between absolute liability and culpabil-
ity, he tries to present his own position
as a technical "scientific" legal one rath-
er than as a moral one.
Another interesting component of
Kelsen's natural-law doctrine is his de-
fense of the primacy of international law
over national law. "The idea quite gen-
erally held, that all states form a com-
munity in which they stand side by side
on a footing of equality, is possible only
on the assumption that above the states,
or above the national legal orders, there
is a legal order that makes them equal
by defining their mutual spheres of va-
lidity. This order can be only interna-
tional law."'19 Kelsen holds that his own
theory for the first time revealed the
"theoretic basis" of this primacy of in-
ternational law. But surely the idea of a
system of law (jus naturale or jus gen-
tium) superior to the positive laws of
the several states (jus civile or jus posi-
tivum), defining the conditions of their
validity and their proper interrelations,
is an old conception of the natural law
tradition. In emphasizing this alterna-
tive over the primacy of national law,
Kelsen is not merely carrying out a func-
tion of technical legal science but is sup-
porting his own moral pereference for a
"universal legal order" over the par-
ticularisms of unrestrictedly sovereign
states.
The conclusion of this long examina-
tion of Kelsen's project, then, is that his
attempt at a positivistic jurisprudence
separate from all ethical components is
as much a mixture of success and failure
as is his attempt at a normative jurispru-
dence separate from all sociological com-
ponents. His project of "precluding from
the cognition of positive law all elements
foreign thereto" is similar in form, as
we saw, to the analytic projects of Frege
and Moore in logic and ethics; and the
categorial question which they all in-
volve is the general one: "When is x 'for-
eign' to
y,
when y is viewed as a species
of subject-matter or of concepts?" Now,
what such a question means may be
shown by the way in which one goes
about answering it. Kelsen's conception
of his own way is that he has proceeded
linguistically and empirically, specifying
what the word "law" means (and does
not mean) by beginning from the usual
definitions of it. As we have seen, how-
ever, he does not live up to this concep-
178
ETHICS
tion: his project of a pure theory of law,
with its positivist and normativist as-
pects and the view of science which it
involves, is the antecedent rather than
the consequent of his definition of law.
He defines law as an order of positive
norms because he wishes to treat law in
this way; and he wishes to treat law in
this way rather than as a sociological
phenomenon or as a response to moral
needs because the purist approach seems
to him more "scientific." And this in turn
is because of his conception of science
as requiring both an abstention from
moral considerations and a logical dif-
ferentiation of legal- normative "oughts"
from sociological "is"-statements.
Now the direct upshot of my criti-
cisms of Kelsen in this paper may be put
in this way: What I have been criticizing
is not his conception of science (al-
though I think it is open to criticism)
but rather his failure to follow his con-
ception through adequately. He mingles
with it considerations which are either
foreign to it or inconsistent with it; and
yet, this mingling reflects an awareness
of further problems which insistently
demand an answer, although not by the
means which Kelsen presents. Law as a
logical system can be differentiated from
law as sociological phenomenon; but
Kelsen tries in addition to find ontologi-
cal correlates for law which are like soci-
ological phenomena in being "realities,"
but of some new, non-empirical kind. His
error here lies in not recognizing the
very limited character of the logical ap-
proach to law, so that he tries to make
such an approach yield more than it
legitimately can. Similarly, law as a so-
cial technique can be differentiated from
morals; but Kelsen tries in addition to
indicate the basic social purposes of law.
His error here lies in not recognizing
that, in turning to social purposes,
he is
moving away from a
pure
consideration
of techniques to a consideration of mor-
als, so that once again he fails to recog-
nize the severe limitations of his ap-
proach and the character of the moral,
non-"technical" additions he has made.
Hence, just as Kelsen succeeded in dis-
tinguishing the sociological "is" from the
jurisprudential "ought" at the level of
language, but failed in trying to draw a
corresponding distinction in the sphere
of realities; so he succeeds in distin-
guishing the ethical "ought" from the
jurisprudential "is" at the level of tech-
nique, but he fails when he moves his
discussion away from the level of tech-
nique. Yet, there is a point to each of
these failures: the former points to the
unresolved problem of the nature or sta-
tus of rules in general, and of legal rules
in particular; the latter points to the
difficulty of treating legal rules as norms
without relating them to the broader
moral and social norms which condition
men's acceptance of them, and without
which law cannot be differentiated from
mere power.
I have not dealt in this paper with the
practical consequences of this latter as-
pect of Kelsen's theory. Yet they may be
serious. For if one mingles the concep-
tion of law as coercive order with the
conception of law as serving the broad
interests of a whole community, one may
be led to the view that every coercive
order serves such interests, so that all
existing regimes are rationalized as mor-
ally justified. Consequently, despite Kel-
sen's vehement attempts to separate the
question of law from the question of jus-
tice, and to leave all "ideological" ele-
ments out of his legal science, the way in
which he works out his project
incurs
the danger of obscuring
the very
demo-
cratic values in which he so sincerely
believes.
UNIVERSITY OF CHICAGO
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 179
NOTES
1. Hans Kelsen, General Theory of Law and
State, trans. A. Wedberg (Cambridge, Mass.: Har-
vard University Press, 1945). I shall subsequently
refer to this book as "GT." For a complete bibliog-
raphy of Kelsen's writings before 1945, see GT, pp.
447-54.
2. For a list of over one hundred titles of books
and articles to 1945 dealing with Kelsen's theory,
see GT, pp. 458-65. For some of the main criticisms
since 1945, see J. Stone, The Province and Func-
tion of Law (Sydney, 1946), pp. 91 ff.; G. W. Paton,
A Textbook of Jurisprudence (2d ed.; Oxford: Ox-
ford University Press, 1951), pp. 10-14; E. W. Pat-
terson, Jurisprudence: Men and Ideas of the Law
(Brooklyn: Foundation Press, 1953), pp. 259-65;
and "Hans Kelsen and His Pure Theory of Law,"
California Law Review, XL (1952), 260 ff.; and
W. Friedmann, Legal Theory (3d ed.; London:
Stevens & Sons, 1953), pp. 112-25.
3. Hans Kelsen, What Is Justice? Justice, Law
and Politics in the Mirror of Science (Berkeley and
Los Angeles, Calif.: University of California Press,
1957). I shall subsequently refer to this book as
"WJ."
4. WJ, p. 266. Cf. ibid., p. 294; GT, p. xiv.
5. WJ,p.360.
6. Ibid., p. 269.
7. Ibid., pp. 293-94.
8. Ibid., p. 214. Cf. ibid., p. 326; GT, p. 114.
9. WJ, p. 266; GT,p.5.
10. WJ, p. 269. Cf. GT, p. 162.
11. See WJ, p. 331: "They are not 'normative'
sciences in the sense that they prescribe or permit
a particular human behavior; as sciences they do
not prescribe or permit, they do not issue norms
of social behavior: they describe social norms and
social relations established by such norms."
12. Ibid., pp. 221, 358.
13. Ibid., pp. 293-94; GT, p. xv.
14. See WJ, pp. 221 ff., 261 ff., 2 79-80.
15. Ibid., pp. 221-25.
16. Ibid., pp. 330 ff. Cf. ibid., p. 139; GT, pp.
45-46, 164.
17. WJ,p.363.
18. Ibid., p. 269. Cf. GT, pp. 37, 163.
19. WJ, p. 269. See also ibid., p. 294.
20. Ibid., p. 270.
21. Ibid., p. 270; GT, p. 175.
22. WJ,p.269.
23. Ibid., p. 269.
24. Ibid., p. 231. Cf. GT, pp. 15 ff.; 181 ff., 188 ff.
25. WJ,p.235.
26. Ibid., p. 221.
27. Cf. ibid., p. 289.
28. Ibid., p. 268.
29. Ibid., pp. 268, 363, 366, 367; GT, p. 163.
30. WJ, pp. 366, 367.
31. Ibid., p. 362.
32. Cf., e.g., E. H. Levi, An Introduction to Legal
Reasoning (Chicago, Ill.: University
of
Chicago
Press, 1949) ; and 0. C. Jensen, The Nature of Legal
Argument (Oxford: Basil Blackwell, 1957).
33. See WJ, pp. 366, 367; GT, pp. 145 ff., 173-74.
34. See, e.g., J. Frank, Law and the Modern
Mind (New York: Tudor Publishing Co., 1936).
35. WJ, pp. 362, 363; GT, p. xiv.
36. WJ, p. 358. Cf. GT, p. 163.
37. WJ, p. 358.
38. Ibid., p. 140.
39. Cf. G. Williams, "The Controversy concern-
ing the Word 'Law"' in Philosophy, Politics, and
Society, ed. P. Laslett (Oxford: Basil Blackwell,
1946), pp. 134-56; H. L. A. Hart, "Definition and
Theory in Jurisprudence," Law Quarterly Review
(1954), pp. 37-60; R. Woliheim, "The Nature of
Law," Political Studies, II (1954), 128-41.
40. WJ,p. 210.
41. Ibid., p. 213.
42. Ibid., p. 214. See ibid., pp. 325-26.
43. Ibid., p. 215.
44. See also ibid., p. 262, where Kelsen refers to
it as "the subjective meaning of these acts."
45. Ibid., p. 359.
46. Hart, op. cit. (above, n. 39), p. 39, n. 2.
47. For a comprehensive attempt to elucidate
Kelsen's theory along lines similar to the third of
these alternatives, see K. Wilk, "Law and the
State as Pure Ideas: Critical Notes on the Basic
Concepts of Kelsen's Legal Philosophy," Ethics,
LI (1940-41), 158 ff.
48. In GT, p. 172, commenting on the defini-
tions of legal obligation in normative and in socio-
logical jurisprudence, Kelsen writes: "The differ-
ence between the two definitions lies entirely in
the sense in which the sanction is attached to the
delict by the legal rule of normative jurisprudence
and the 'real' rule of sociological jurisprudence. The
facts which are being connected by the two kinds of
rules are exactly the same. What sociological juris-
prudence predicts that the courts will decide, nor-
mative jurisprudence maintains that they ought to
decide" (my italics). If the only difference between
normative and sociological jurisprudence is one of
"sense" and not of "facts," then is the difference
between "natural reality" and "legal reality" like-
wise one of "sense"? But "sense" in turn is a char-
acteristic, not of things or entities, but of language
-so that Kelsen would here be implying that the
sole difference between the two kinds of
jurispru-
dence is one of language, not of kinds of "reality."
49. WJ, p. 272.
50. Ibid., p. 273. Cf. GT, p. 33: "A command, in
the proper sense of the word, exists only when a
particular individual sets and expresses an act of
will." However, Kelsen goes on to say (ibid.),
"when the command is binding . . . the command
'subsists' even when the act of will no longer exists."
51. WJ, p. 2 73.
52. Ibid., p. 214; GT, p. 33. In another essay,
180 ETHICS
however, Kelsen writes that "norms are the ex-
pression of a will" (WJ, p. 258).
53. WJ, p. 215.
54. Ibid., p. 273; GT, p. 35.
55. See WJ, pp. 218-23, 262, 265, 280, 358-60;
GT, pp. 110 ff., 395-96.
56. WJ,p.218.
57. Ibid., p. 360 (my italics). Cf. ibid., p. 265.
58. Ibid., p. 360. In GT, p. 436, Kelsen analogizes
the basic norm to Kant's transcendental principles
of knowledge, in that each is presupposed as the
condition of positive law and of experience, respec-
tively; and positive law and experience are under-
stood by means of the basic norm and the tran-
scendental principles, but cannot be derived from
them.
59. WJ, p. 269.
60. Ibid., p. 268. Cf. GT, pp. 39 ff.
61. WJ,p.214.
62. Ibid., p. 225.
63. Ibid. Cf. GT, pp. 42, 118 ff.
64. WJ, pp. 215, 219; GT, p. 119.
65. Ibid., p. 224.
66. Ibid.
67. Ibid., p. 331. Cf. ibid., p. 358.
68. Ibid., p. 236; GT, p. 20.
69. I am using the term "ethics" here and
throughout the remainder of this section for what
Kelsen usually refers to rather as the "philosophy
of justice" (e.g., WJ, pp. 22, 266). He uses "ethics"
to mean one of the "normative social sciences,")
parallel to jurisprudence and theology; like these,
it merely "describes" norms (cf. ibid., p. 331,
quoted above, n. 11; also pp. 139, 358), but does
not "issue" or "prescribe" norms. It is rather
"morality," the "object" of ethics, which does the
latter (ibid., pp. 236, 358). The "philosophy of
justice," as Kelsen conceives it, presents arguments
for the moral goodness or justice of one or another
set of moral and legal norms, and hence is different
both from law and jurisprudence, on the one hand,
and from morality and ethics, on the other. How-
ever, since this "philosophy of justice" seems closest
to the sense in which "ethics" has been tradition-
ally used by philosophers, I am using the latter
term here in order to make clearer contact with the
philosophic issues raised by Kelsen's views on the
relations of law and jurisprudence to justice.
70. GT,p.5.
71. WJ,p.266.
72. Ibid., p. 356. See ibid., p. 365.
73. Ibid., p. 229.
74. Ibid., p. 4. See ibid., p. 295.
75. Ibid., p. 5; GT, p. xvi.
76. See WJ, pp. 5 ff., 228, 296.
77. Ibid., pp. 7-8; GT, p. 9.
78. WJ, p. 361. See ibid., pp. 210, 229, 364-65;
GT, pp. 48-49.
79. WJ, p. 21. See ibid., p. 365.
80. Ibid., p. 206.
81. GT, p. 4. Cf. WJ, p. 289.
82. WJ, p. 266.
83. Ibid., p. 289.
84. Ibid., p. 236; GT, p. 19.
85. J. Austin, Lectures on Jurisprudence (5th
ed.; London: John Murray, 1885), p. 80 (my
italics). As Glanville Williams points out, "Austin
was not seeking the usual meaning of the term
'law.' If he had been, he could hardly have denied
that the phrases 'law of nations' and 'law of gravity'
were usual ones, and, moreover, phrases that were
usual among the best writers." (Williams, op. cit.
above, n. 39, pp. 136-37.)
86. WJ, p. 236.
87. See ibid., pp. 219-220, 257, 262, 359, 371; GT,
pp. 31, 175-78.
88. WJ, p. 221 (my italics). Cf. GT, p. 115.
89. WJ, p. 221 (my italics).
90. Ibid., p. 262 (my italics).
91. Ibid., p. 360.
92. See ibid., pp. 225, 268.
93. GT,p.5.
94. Cf. WJ, p. 295.
95. Ibid., p. 356.
96. Ibid., p. 141. See ibid., pp. 139, 140, 149, 169.
97. Ibid., p. 137.
98. He has interesting remarks on this tradition
in his two long papers "The Idea of Justice in the
Holy Scriptures" (WJ, pp. 25-81) and "The Nat-
ural-Law Doctrine Before the Tribunal of Science"
(ibid., pp. 137-73). There are, however, some seri-
ous misinterpretations of the natural-law tradition
in the latter paper; and his two papers on "Platonic
Justice" and "Aristotle's Doctrine of Justice" (ibid.,
pp. 82-136) likewise contain misinterpretations.
99. WJ, p. 238; GT, p. 22.
100. WJ, p. 238; GT, p. 22.
101. WJ, p. 238 (my italics). Cf. GT, pp. 22-23.
102. Kelsen presents two kinds of objections to
the approach to law in terms of interests: (a) It
may psychologize legal norms by defining them as
expressions or protections of interests, for "The
word 'interest' signifies a certain mental attitude"
(GT, p. 80; cf. WJ, pp. 216-17). But, Kelsen argues,
legal norms and rights exist even when no "actual"
will or interest exists. (b) Since men have con-
flicting interests, "to call that interest which is ex-
pressed in the legal order the interest of all is a fic-
tion....." (GT, p. 185; cf. WJ, p. 4). In reply to a,
however, it should be pointed out (as above, p. 163,
incl. n. 50) that "interest" may be interpreted as a
disposition and not merely as an act. Hence also it
may be broader and more "objective" than what is
directly correlated with single acts of desiring (cf.
in this respect Kelsen's phrase "spheres of interest").
In reply to b, just laws may be viewed as protecting
minimal or common interests, where "interest" is
defined by reference to basic needs and not merely
by reference to the desires of conflicting power-
groups. It is at this point that the need of juris-
prudence for moral and political philosophy be-
comes especially prominent,
THE QUEST FOR SPECIFICITY IN JURISPRUDENCE 181
103. At GT, p. 80, Kelsen says that it is "incor-
rect" to "define a right as an interest protected by
law" (cf. above, n. 102). He steadfastly views in-
terests as something which men have quite inde-
pendently of what positive law determines.
104. GT, p. 5.
105. WJ, p. 241.
106. Ibid., pp. 248-49 (my italics).
107. GT, pp. 54, 57, 69.
108. Politics i. 2. 1253a. 18.
109. WJ, pp. 248, 249.
110. Ibid., pp. 249-50.
111. Ibid., p. 237.
112. Ibid., p. 249. Cf. GT, p. 57.
113. WJ, p. 250 (my italics). Cf. GT, p. 55,
where the stipulation of intention or negligence is
ascribed to "the criminal law of civilized peoples."
114. WJ, p. 250. Cf. GT, p. 65, where in succes-
sive sentences Kelsen refers to "refined legal tech-
nique" and the "individualistic ideal of justice" as
both requiring consideration of intention.
115. WJ, pp. 250-51.
116. E. B. Pashukanis, General Theory of Law
and Marxism, trans. H. Babb, in V. I. Lenin et al.,
Soviet Legal Philosophy (Cambridge, Mass.: Har-
vard University Press, 1951), pp. 111 ff. Cf. Kelsen's
discussion of Pashukanis' denial of the "legal" char-
acter of public law in The Communist Theory of
Law (London: Stevens & Sons, 1955), pp. 93-96.
117. Ibid., p. 371. Cf. GT, pp. 203-4.
118. WJ, p. 371.
119. Ibid., p. 285.