Confronting Kelsen and Gadamer On Legal

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4 of 998 DOCUMENTS Copyright (c) 2003 Yeshiva University. Cardozo Law Review January, 2003 24 Cardozo L. Rev. 769 LENGTH: 12739 words ARTICLE: DIALECTIC AND REVOLUTION: CONFRONTING KELSEN AND GADAMER ON LEGAL INTERPRETATION NAME: Hans Lindahl* BIO: * Associate Professor of Legal Philosophy, Faculty of Philosophy, Tilburg University, Post Box 90153, 5000 LE Tilburg, the Netherlands (H.K.Lindahl@uvt.nl). The author thanks Ulises Schmill, Michel Troper, Bert van Roermund, and Oscar Sarlo for helpful comments to a draft of this Paper presented at the IVR Congress in Amsterdam, June 2001. This Paper also has benefited from comments to an earlier draft by Bart van Klink and Emilios Christodoulidis. SUMMARY: ... Anyone who peruses Kelsen's Pure Theory of Law expecting to find a full-blown philosophical analysis of legal interpretation is bound to be disappointed, at least at first glance. ... From Gadamer's perspective, one could say that the disruption of legal order marks the experience of misunderstanding - of strangeness - that calls forth an interpretative process. ... Kelsen's sharp distinction between normative meaning and material fact only holds for the boundary case in which the object of legal interpretation is entirely familiar, a harmless "material" that effortlessly fits into the scheme of interpretation. ... The answer to this question, from the perspective of Gadamer's philosophical hermeneutics, is that the act of positing a legal norm always involves taking up a relation to a broader or narrower range of possibilities as the legal order's own possibilities. ... Having consistently held the view that legal interpretation aims to map the "frame" of normative possibilities available to a legal norm, Kelsen suddenly asserts that authentic interpretation may give rise to a legal norm "which lies entirely outside the frame of the norm to be applied. ... HIGHLIGHT: [*769] Abstract This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests that legal interpretation always moves on this side of a normative rupture that cannot be "closed" interpretatively from within the order itself. This insight implies that Gadamer's account of legal interpretation ultimately falls prey to positivism. TEXT: Introduction
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Anyone who peruses Kelsen's Pure Theory of Law expecting to find a full-blown philosophical analysis of legal interpretation is bound to be disappointed, at least at first glance. Legal interpretation plays a relatively modest role in the framework of [*770] the Pure Theory, and the focus of Kelsen's analysis is extremely narrow. His approach is largely determined by an uncompromising rejection of the view that the methods of legal interpretation lead to "one right answer." Although perceptive, Kelsen's approach to legal interpretation is undoubtedly too restrictive. The narrowness - and even reductionism - of his approach is striking because interpretation occupied pride of place in various lines of philosophical inquiry roughly contemporaneous with his development of the Pure Theory. Edmund Husserl's analysis of the structure of intentionality, Martin Heidegger's discussion of understanding as a fundamental feature of how human beings relate to the world, and Hans-Georg Gadamer's elaboration of a philosophical hermeneutics can be seen, if one abstracts from their considerable differences, as attempts to clarify the general structure and conditions of possibility of interpretation. Gadamer's work, in particular, is of great interest, as he specifically deals with legal interpretation, which he views as paradigmatic for the hermeneutic enterprise as a whole. Truth and Method, his masterwork, has profoundly influenced jurisprudential discussion about the concept and task of legal interpretation, both in Continental Europe and in the Anglo-Saxon tradition. A case in point is Ronald Dworkin, who acknowledged his debt to Gadamer in the opening chapters of Law's Empire. In short, while what might very loosely be called the hermeneutic turn in modern philosophy has had a considerable impact on the jurisprudential discussion of legal interpretation, Kelsen remained stubbornly impervious to this strand of thinking. It is tempting to conclude that, by dint of the kinds of questions that interested Kelsen, the Pure Theory has little or nothing to offer in the way of a philosophical elaboration of the concept of legal interpretation. This conclusion would be premature. I will argue that the Pure Theory's fundamental contribution to a theory of legal interpretation is to be found elsewhere, in the theory of the basic norm. I propose, therefore, to examine the general structure and conditions of possibility of legal interpretation by confronting Kelsen's Pure Theory of Law with Gadamer's philosophical hermeneutics. This confrontation unfolds in two episodes. The first has Gadamer critically reading Kelsen. The master concept of this episode is dialectic or, as Gadamer puts it, the "hermeneutic circle." In effect, a radicalization of Kelsen's account of the legal norm as a "scheme of interpretation" reveals a dialectic at work in the law: the legal interpretation of reality also changes, to a lesser [*771] or greater extent, the principle of interpretation - the legal norm. The second episode has Kelsen critically reading Gadamer. Here, revolution functions as the master concept of the debate. Kelsen's analysis of the genesis of a legal order in the framework of his famous theory of the basic norm effectively exposes the limit of legal interpretation in a strong sense of the term "limit": every order of positive law is radically contingent because legal interpretation always moves on this side of a normative rupture that cannot be "closed" interpretatively from within the legal order itself. Kelsen's critique, I will argue, reveals a residue of positivism that governs Gadamer's account of legal interpretation, despite the latter's explicit and sustained critique thereof. I. Dialectic A latent ambiguity characterizes Kelsen's theory of legal interpretation. The ambiguity stems from the fact that the Pure Theory contains not one but two very different approaches to legal interpretation. This ambiguity is latent because whereas Kelsen fully exploited one of these approaches, the other never really gets off the ground. The first rests on the idea that a legal norm is a "frame" of possibilities, i.e., a broader or narrower range of normative meanings awaiting discovery by an interpretative act. The second focuses on the legal norm as a "scheme of interpretation." After a brief discussion of Kelsen's favored approach, I will show how the notion of a "scheme of interpretation" allows the Pure Theory to rejoin the "hermeneutic turn" of modern philosophy. A. The Legal Norm as a "Frame" of Meanings
Interpretation, as Kelsen recognizes, is a ubiquitous feature of the law. Interpretation is required for all cases in which legal norms must be applied, including constitutional norms, statutes, administrative regulations, judicial decisions, and contracts. Yet the process of applying norms by no means exhausts the scope of legal interpretation: to be able to follow or comply with norms, individuals must interpret them. Moreover, the bailiwick of legal interpretation is not limited to a practical attitude toward the law, as in applying or complying with the law; legal science must also interpret the law in the process of describing it, i.e., when [*772] entertaining a purely theoretical attitude towards the law. n1 What then is legal interpretation? Kelsen's answer to this question is intimately woven into the notion of legal norms as "frames" that contain a range of possible applications. As he puts it, "if "interpretation' is understood as discovering the meaning of the norm to be applied, its result can only be the discovery of the frame that the norm to be interpreted represents and, within this frame, the cognition of various possibilities for application." n2 Succinctly, to understand a legal norm is to clarify it, and to clarify it is to draw out and fix - feststellen - the ensemble of meanings that defines the legal norm as a "frame" of possible applications. This, in substance, is what Kelsen tells us about the concept of legal interpretation. The frame theory of legal meaning prepares the way for two polemical standpoints that Kelsen defends against traditional theories of legal interpretation. The first concerns legal certainty. As he sees it, the so-called methods of legal interpretation conceal the fact that "there is no criterion on the basis of which one of the possibilities given within the frame of the norm to be applied could be favoured over the other possibilities." n3 Thus, the question concerning the "correct" interpretation of a legal norm is a problem of legal policy, not of legal theory. By implication, legal certainty, i.e., the idea that the interpretation favored by the legal authority - and only that interpretation - flows inexorably from the applicable norm, is an illusion that merely masks the discretionary power exercised by legal authorities. The second polemical standpoint concerns the problem of "gaps" in the law. From a strictly logical point of view, there are no gaps in the law, for if no legal norm is applicable to a case brought before the law, then the apposite legal authority can simply reject the claim as unfounded. Instead, the problem of gaps refers to those cases in which the application of the norm's meaning leads to a result that is viewed as unjust or impractical. In such cases, the methods of interpretation are invoked to remove this discrepancy. In fact, however, they are mustered "to eliminate the norm to be interpreted, in order to replace it with ... the norm [*773] desired by the authority applying it." n4 Kelsen does not mince his words about this procedure: it boils down to usurping the functions of a legal authority. While this conspectus could be further refined, it suffices to capture the main thrust of Kelsen's theory of legal interpretation. n5 Let us now briefly focus on its key assumption, to clear the way for a second approach to interpretation: an approach that the Pure Theory hints at, but does not develop. Kelsen's proposal to view the legal norm as a "frame" of meanings has some plausibility, for it is undoubtedly the case that although legal norms are polysemic, they are not infinitely so. Yet his reference to a "frame" says more than this: It is the task of legal science to "[exhibit] on the basis of a critical analysis all possible interpretations (including the politically undesired ones and those not intended by the legislator or the contracting parties, yet included in the wording chosen by them)." n6 Qua "frame," the legal norm is a closed and unchanging corpus of meanings, waiting to be discovered and ordered by legal science. Precisely for this reason, Kelsen's critique concerns the attainability, but not the concept, of legal certainty. For the frame theory implies that certainty is possible about the range of meanings encompassed by a legal norm, in the sense of an exhaustive and conclusive enumeration of the possible applications of a norm. Far from relinquishing the traditional idea of legal certainty, Kelsen's critique confirms and even reinforces it. Indeed, unmasking the illusion of legal certainty goes hand in hand with a stern admonition about the practical importance of good draughtsmanship, in view of attaining a high degree of legal certainty:
Scientific interpretation can show the law-creating authority how far his work is behind the technical postulate of formulating legal norms as unambiguously as possible, or, at least, in such a way that the unavoidable ambiguity is reduced to a minimum and that thereby the highest possible degree of legal security is achieved. n7 In contrast with the more or less subjective, and politically interested viewpoint of interpretations arising from the application of legal norms, the interpretative viewpoint of legal science is disinterested and, in its disinterestedness, objective. In other [*774] words, the scientific viewpoint allows legal cognition to reproduce, by way of legal propositions, all and only those meanings contained in a norm. To interpret is to represent, and to represent is to articulate an original range of meanings given directly to cognition. This representationalistic presupposition informs Kelsen's bottom-line on legal interpretation: "One cannot extract from a norm by way of interpretation what the norm never had." n8 Although Kelsen is no doubt right in asserting that not any interpretation goes, must we also take on board his representationalistic assumption that the legal norm always had the meaning or meanings revealed by an interpretative act? What is required is not simply to show that legal certainty is unattainable, as Kelsen thought, but to radically reconsider its concept. Reconsidering the concept of legal certainty implies thinking through, once again, the meaning of legal interpretation and its relation to subjectivity and objectivity. Does the Pure Theory of Law itself suggest a more radical approach to interpretation? B. The Legal Norm as a "Scheme of Interpretation" The traces of an affirmative answer to this question are present at the outset of both editions of the Reine Rechtslehre, when Kelsen refers to legal norms as "schemes of interpretation." Human behavior, he argues, becomes a legal act when it acquires legal meaning, and an act receives this meaning when brought into connection with a legal norm:
What makes such an event a legal act is its meaning, the objective sense that attaches to the act. The specifically legal sense of the event ... , its own peculiarly legal meaning, comes by way of a norm whose content refers [bezieht] to the event and confers legal meaning on it; the act can be interpreted, then, according to this norm. The norm functions as a scheme of interpretation. n9 Kelsen illustrates this conception of the legal norm by reference to adjudication, a specific case of law-setting:
When a judge establishes as a given a concrete material fact (say, a delict), his cognition is directed first of all simply to something existing in nature. His cognition becomes legal at the point at which he brings together [in Beziehung bringt] the material fact he has established and the statute he is to apply; [*775] that is to say, his cognition becomes legal when he interprets the material fact as "theft' or "fraud.' n10 What first strikes the eye in these passages is Kelsen's characterization of law-setting as a "relating" (beziehen). What kind of relation does law-setting bring about? When a legal authority posits a norm, it qualifies an event legally: it reveals a state of affairs as possessing a determinate normative meaning. The act of setting the law objectifies the event, in the fundamental sense of the term "objectivity": law-setting discloses the fact as "this" or "that," e.g., as "theft" or "fraud." Interpretation is relating a legal meaning to an event, or disclosing something present as something meaningful (for short, hereinafter: "something as something"). Unfortunately, Kelsen does not further pursue his analysis of "schemes of interpretation." This stems from the fact
that legal norms function in two highly different ways in the Pure Theory, namely as "schemes of interpretation" and as objects of interpretation. In Kelsen's view, legal interpretation concerns only the latter; the former pertains to a far more general notion of interpretation. While plausible at first sight, this assumption is philosophically problematic. For the following question arises: what is the common structure that allows qualifying any and all acts of interpretation as interpretative acts, regardless of the object of interpretation? More pointedly: does not the act of interpreting a legal norm, qua interpretative act, necessarily disclose "something as something," thereby presupposing what might be very broadly called a "scheme of interpretation"? This question allows us to join Gadamer's philosophical hermeneutics. Indeed, Gadamer points the way to a more radical approach to interpretation, suggesting that language "schematizes" or "mediates" our access to the world. n11 Reality is never given directly but always as "this" or as "that." Accordingly, activities so disparate as science, art, religion, and law are all interpretative, in this fundamental sense. Moreover, interpretation is not limited to discursive activities, in the broadest sense of the term. Husserl, for example, shows that perception is also a thoroughly interpretative process, guided by "intentions of anticipation" of how things look, feel, etc. n12 Gadamer's insight implies that there is no essential [*776] difference, from the point of view of the structure of interpretation, between the act of revealing an event as legally meaningful and the act of elucidating the meaning(s) of a legal norm. Both are specific instances of the general achievement of interpretation, namely "understanding something as something." n13 Interpretation is a ubiquitous feature of the law, not because it is specific to our relation to the law, but because it denotes the way in which human beings have access to the world. Therefore, what is required is to radicalize Kelsen's insight about the legal norm as a scheme of interpretation. To this end, I will not dwell on the philosophical sources from which Kelsen drew this notion. Instead, my strategy will be to develop a conceptual framework that mediates between Kelsen's original insight and Gadamer's philosophical hermeneutics. As Gadamer only refers to the hermeneutic function of "schemes" at the highly general level of language, this conceptual framework will have to concretely elaborate this idea in relation to legal norms. Let us begin by looking more closely at the notion of a "scheme of interpretation." Most generally, a scheme of interpretation is a rule or measure that determines what we look for and pick out in the world of events. The same idea can be expressed by asserting that legal norms are criteria of normative inclusion and exclusion. As such, legal norms embody the fundamental distinction effected by every legal order, namely the distinction between the legal and the non-legal. Indeed, the founding act of a legal order brings about normative closure whereby certain values are marked out for legal protection and others are not. This partition establishes how a legal order interprets reality: what it "sees" and does not "see." Notice, however, that the legal and the non-legal are not equivalent to, respectively, the legal and the illegal. The legal, as per the first distinction, encompasses both terms of the second distinction. In effect, illegality denotes legality ex negativo: illegal acts are acts subject to repression because they breach a legally protected value. In short, whereas the legal encompasses values important for the law, the non-legal refers to those that are not. The distinction between the legal and the non-legal, without [*777] which no legal order is possible, is a thoroughly ambiguous achievement. On the one hand, it would be a mistake to view the exclusion of values merely as a "privation" of legal order; first and foremost, exclusion is a positive condition of legal interpretation. Closure is a necessary condition for disclosure. In effect, the act of revealing something as theft, testament, trust or whatever, presupposes the normative distinctions introduced by legal meanings and, ultimately, the closure that separates the legal from the non-legal. Closure is indispensable for normative orientation by the members of a community; in its absence, they would not know how they ought to behave. On the other hand, the operation of normative inclusion and exclusion implies that, in the very act of revealing an event as legally significant, legal interpretation effects a normative reduction of what it reveals. Disclosure is necessarily a normative closure of the interpreted. Legal interpretation reveals and conceals, actualizes a normative meaning by eliding other possible meanings. The values excluded by a legal order do not simply vanish into thin air. They are marginalized; they remain at the fringes of positive law, embodied in forms of behavior that retain the potential of subverting the normative distinctions drawn by the law. In short, the operation of inclusion and exclusion condemns legal order to an irredeemable
contingency. If no legal order can establish itself without exclusion, exclusion guarantees that no order ever succeeds in establishing itself definitively. The instability and contingency of legal order are two sides of the same coin. These remarks allow us to introduce the fundamental hermeneutic distinction between familiarity and strangeness into a theory of legal interpretation. In general, familiarity refers to what fulfills our expectations, what is understandable without further contemplation, whereas strangeness concerns what we cannot understand, what we cannot "place" within our expectations about how things are ordered. As such, the experience of strangeness throws us back onto our expectations, both making them explicit and revealing them as inadequate to the situation at hand. Familiarity and strangeness become modes of legal interpretation on the basis of the distinction between the legal and the non-legal. As a mode of legal interpretation, familiarity concerns material facts that, by and large, "fit" into the mold of applicable legal norms, regardless of whether these norms qualify such facts as legal or as illegal. n14 Strangeness first arises in cases where material [*778] facts do not match a legal norm when they should; their legal qualification becomes problematic. On the one hand, the normative interpretability of the material fact, as anticipated by the legal norm, gives way to uninterpretability, by questioning the criterion of inclusion and exclusion contained in the applicable norm. What announces itself in strange behavior is a different way of distinguishing between legally important and unimportant values. On the other hand, the applicable norm becomes inapplicable. Interpretation is arrested, whereby legal meaning itself becomes obtrusive. In a word, the scheme of interpretation is rendered thematic as a scheme. n15 On this reading, strangeness denotes what subverts the law by challenging the criteria of inclusion and exclusion defining an individual norm, a legal institution or a fundamental value of the legal order as a whole. As such, strangeness has a thoroughly ambiguous character: it both threatens and reveals new possibilities. This, precisely, is the experience of legal contingency. n16 Significantly, this experience of contingency comes to the fore in Kelsen's reference to legal gaps, independently of his assessment thereof: "The so-called "gap,' ... is nothing but the difference between the positive law and a system held to be better, more just, more nearly right." n17 The "difference" to which Kelsen refers is, at bottom, the difference between actuality and possibility, between law as posited and as possible order. From [*779] Gadamer's perspective, one could say that the disruption of legal order marks the experience of misunderstanding - of strangeness - that calls forth an interpretative process. From this perspective, the two-fold negativity of uninterpretatibility of a material fact and inapplicability of a correlative normative scheme is a specific manifestation of the negativity of the hermeneutic experience in general: "Experience is initially always experience of negation: something is not what we supposed it to be. In view of the experience that we have of another object, both things change - our knowledge and its object." n18 That a material fact does not "fit" into the criterion of normative inclusion and exclusion defining a legal norm means that the criterion's claim to generality has become problematic. Consequently, legal interpretation does not only disclose a material fact as falling under a legal norm; its task is also to reformulate the meaning of the applicable norm, in confrontation with what subverts its claim to generality. To some extent, legal interpretation always involves a two-way relationship between the general and the particular. By implication, Kelsen's account of the legal order as a hierarchical normative order - the so-called "Stufenbau" - requires an important correction. If, as Kelsen sees it, the idea of a normative hierarchy is meant to show that the act of setting the law depends on the higher-level norm, the hierarchy also needs to be inverted to the extent that the higher-level norm depends on the act of setting the law to establish its general meaning. Law-setting both particularizes and generalizes; to [*780] borrow Kant's famous distinction, it is a judgment both "determinative" and "reflective." n19 Two examples of law-setting - adjudication and legislation - may help to illustrate this idea. Lawyers distinguish between standard cases in which courts maintain a certain interpretation of a legal norm, and landmark cases, wherein a court creates a rule. Whereas in the former the applicability of the legal norm is not seriously called into question, in the latter the state of affairs that calls for legal qualification renders the applicable legal norm problematic, leading the court to a new interpretation of this norm. The distinction between these two cases is not, however, absolute. On the one hand, every standard case requires at least a minimal reformulation of the general legal norm, given the changed context in which this norm must be applied. On the other hand, a landmark case does not produce an entirely novel rule; it reformulates a legal norm, applying it in a new way. n20
If it is tempting to overlook the generalizing moment of legal interpretation in adjudication, the opposite temptation holds for legislation: forgetting the particularizing aspect of legal interpretation. Indeed, by positing general norms, whether substantive or procedural, every legislative act claims to apply general values. Without this claim, legislation would forfeit its claim to objectivity. To be sure, the ongoing debate about the meaning of such values, and how they should obtain legal expression, is at the root of politics. This simply indicates that, in a continuous confrontation with what calls for legal interpretation, the enactment of statutes can run the entire gamut - from legislative fine-tuning to sweeping social reform. In both cases, [*781] legal interpretation involves generalization and particularization. Similarly, in both cases legal interpretation moves between familiarity and strangeness. Thus, legal interpretation unfolds a dialectic: to interpret a material fact as "this" or "that" is also to change, to a lesser or greater extent, the principle of interpretation - the legal norm. The structure of legal interpretation is a specific instance of the circularity that, according to Heidegger, characterizes understanding in general. n21 The very notion of a "scheme" of interpretation suggests that legal norms anticipate the normative meaning of material facts. In other words, legal norms deploy what Heidegger calls the "fore-structure" of understanding. If legal interpretation only confirmed the normative meanings anticipated or projected by legal norms, it would spin endlessly in a vicious circle. However, as Heidegger notes, the circularity of understanding is not, as such, vicious; understanding what is given for interpretation requires revising at least minimally the anticipation that guides the process of understanding. Law is a dynamic process, beyond Kelsen's suggestion that lower-level norms are created in the process of applying higher-level norms, because the act of setting the law creates, to a lesser or greater extent, the meaning of the very norm it applies.
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C. Implications Taking seriously the idea that a legal norm is a "scheme of interpretation," and law-setting an interpretative act, demands that Kelsen's theory of legal interpretation be drastically revised. The revision does not, however, stop here. Gadamer's critique requires amending several other key aspects and assumptions of the Pure Theory of Law as well. 1. Interpreting the Law Kelsen, as we have seen, deals with interpretation in what, at first blush, are two entirely different contexts. The first concerns the norm as a scheme for the normative interpretation of reality; [*782] the second refers to the legal norm as an object of interpretation. Having extensively commented on the former, let us now briefly turn to the second. As noted in Part I.A, Kelsen's account of the interpretation of legal norms is thoroughly representationalistic: a range of legal meanings is directly given to scientific cognition, unmediated by the interpreter's "subjective" interests. This is precisely the point at which Gadamer's critique sets in: far from being an obstacle to interpretation, the interpreter's situation conditions the possibility thereof. Any attempt to methodologically bracket this situation, aiming to gain a vantage point that would assure unmediated access to an original meaning or range of meanings, cuts off the very conditions that make interpretation possible. Kelsen's theory of legal interpretation is blind to the hermeneutic productivity of the background assumptions with which an interpreter necessarily approaches legal norms, even in those cases in which application remains virtual. These background assumptions are veritable "schemes of interpretation." Moreover, they include normative assumptions. There is simply no value-free interpretation of the law. Thus, the act of interpreting a legal norm unfolds the general structure of interpretation that we have already analyzed with regard to the legal interpretation of reality. Indeed, to interpret a legal norm is to disclose "something as something," to reveal a norm as possessing this or that meaning. From Gadamer's perspective, the acts of legally interpreting human behavior and of interpreting a legal norm differ only in terms of their object, not of their structure. By implication, the objectivity of legal interpretation cannot consist of suppressing the background assumptions that give access to legal norms, but of rendering them thematic and correcting them by what Paul Ric<oe>ur calls a "conflict of interpretations." n23 2. Norm and Fact A second critical revision of the Pure Theory concerns the implications of legal contingency for the sharp distinction
between norm and fact, ought and is, in so far as it pertains to Kelsen's analysis of legal interpretation. The core of legal contingency, as evidenced in the experience of strangeness, is not the simple opposition between norm and fact, but the tension between these [*783] two terms. More precisely, contingency denotes a situation in which the hard and fast distinction between norm and fact has become problematic. On the one hand, the fact forfeits its "factuality," in the sense of a pre-normative state of affairs that requires an interpretative act to acquire a normative meaning. The material fact appears, in the experience of legal contingency, as possessing a normative meaning of its own; a meaning that does not coincide with the meaning anticipated or projected by the legal norm. In other words, the fact appears as the index of another way of distinguishing between law and non-law. On the other hand, the experience of strangeness brings about a certain "objectification" of the norm, in the sense of its becoming a "fact." For, as noted earlier, the inapplicability of the legal norm in the experience of strangeness brings about the obtrusiveness of the legal norm, which now appears as a scheme that does not work. Contingency depletes the scheme's normativity, such that it proves to be in fact a norm, but no more than that, i.e., merely one way, amongst others, of normatively interpreting reality. Consequently, the experience of strangeness brings about a state of indeterminacy between norm and fact - ought and is. Kelsen's sharp distinction between normative meaning and material fact only holds for the boundary case in which the object of legal interpretation is entirely familiar, a harmless "material" that effortlessly fits into the scheme of interpretation. A situation in which the object of legal ordering has ceased to be anything more than a pure fact, the innocuous condition of an interpretative process, signals a legal order that has succeeded in stabilizing itself definitively. 3. Normative Limits Kelsen's reference to norms as a "frame" of meanings obliquely points to the concept of the limit of legal interpretation, although he does not successfully capture the hermeneutic specificity thereof. This limit, as we have seen, concerns the distinction between law and non-law. In this perspective, legal contingency denotes the situation in which the legal is no longer merely legal, nor the non-legal only non-legal. More precisely, values that hitherto appeared as legal also manifest themselves as non-legal, i.e., as no longer deserving of protection by the legal order, and non-legal values now appear as legal, i.e., as deserving of protection. In short, the limit between law and non-law, "inside" and "outside," familiarity and strangeness, becomes [*784] indeterminate. The corresponding act posits determines - anew the limit between law and non-law. To the extent that the interpretative act involves a dialectic, that is, changes the normative scheme of interpretation in the process of interpreting reality, the act shifts the limit between law and non-law, between the interior and the exterior of a legal order. Accordingly, the dialectic of legal interpretation points to a normative limit that can be shifted, i.e., widened or narrowed, by reformulating the scope of a legal norm, a legal institution or a fundamental value of the legal order. 4. Identity The experience of legal contingency offers a privileged vantage point to evince the intimate connection between legal interpretation and the identity of a legal order. The subversion of a legal order necessarily confronts the order with its own concrete possibilities. Kelsen comes closest to putting his finger on the internal connection between interpretation and identity in the following passage of the second edition of the Reine Rechtslehre: "The doctrine of the hierarchy of the legal order comprehends the law in motion, in its perpetually renewed process of self-creation [self-regeneration]." n24 Yet Kelsen fails to raise the decisive question: why is the creation of legal norms a process of self-creation? What justifies treating the identity of a legal order as a reflexive relation, thus, in terms of ipseity? The answer to this question, from the perspective of Gadamer's philosophical hermeneutics, is that the act of positing a legal norm always involves taking up a relation to a broader or narrower range of possibilities as the legal order's own possibilities. Having to take up a relation to possibilities is precisely what characterizes ipseity. In a lapidary formulation, Gadamer puts it as follows: "In the last analysis, all understanding is self-understanding." n25 Notice, furthermore, that the relation to self does not exhaust the relations unfolded by legal interpretation. In effect, the self-relation of a legal order goes hand in hand with a relation to reality. The act of taking up a relation to a broader
or narrower range of possibilities as the legal order's own possibilities is also, and necessarily, the act of qualifying an event normatively. [*785] Accordingly, these two relations are co-original: The legal interpretation of reality is perforce the self-interpretation of a legal order and its own possibilities; conversely, no self-interpretation of a legal order is possible other than in an interpretation of reality. The picture is not complete, however, as these two relations imply a third relation, namely a relation to other. The material fact - reality - is never only the innocuous presupposition of an interpretative process; to a lesser or greater extent, it embodies another possible legal order, another way of drawing the distinction between law and non-law. There is no relation to self - no "self-creation" of a legal order, to borrow Kelsen's expression - without a concomitant relation to other. More simply, no legal community can call itself a "we" other than in relation to a "they." This relationship, and the terms in which the distinction between "we" and "they" has been drawn, remains taken for granted in familiarity. By contrast, the experience of strangeness not only reveals that the reference of a community to itself as a "we" is problematic, but also that the very possibility of its self-reference is radically dependent on the other and, thus, a "they." Whereas familiarity risks hypostatising the identity of a legal community, strangeness exposes the relational character thereof. Yet more forcefully, strangeness marks the moment of danger and opportunity for the self-understanding - the identity - of a legal community. From this perspective, the instability of legal order has two faces: strangeness can subvert the legal order's claim to generality, revealing the law as contingent; and the act of positing the law cannot but take up a relation to the legal order's possibilities, even in those cases where, ignoring the subversiveness of the strange, the act confirms the existing partition of the legal and the non-legal. To conclude this point, let us return to Kelsen's reference to law-setting as a "relating." n26 Our question initially concerned the kind of relation brought about by law-setting. The foregoing analysis can be seen as a progressive radicalization of that question. All the lines of our inquiry converge in the following idea: the act that discloses something as legally meaningful unfolds a relation to self, to reality and to other. This three-fold, co-original reference determines legal interpretation as a "bringing into relation" n27 (in Beziehung bringen). [*786] 5. Subjectivity and Objectivity It is fitting that we end this section with some remarks about subjectivity and objectivity, as this problem dominates Kelsen's approach to legal certainty and his misguided "frame" theory of legal norms. This conclusion is all the more apposite if we bear in mind that, as Stanley L. Paulson has pointed out, Kelsen's view on legal interpretation undergoes an important alteration in his late work. n28 Having consistently held the view that legal interpretation aims to map the "frame" of normative possibilities available to a legal norm, Kelsen suddenly asserts that authentic interpretation may give rise to a legal norm "which lies entirely outside the frame of the norm to be applied." n29 Paulson notes that this comment underscores Kelsen's heightened awareness of the problem of indeterminacy for legal cognition. n30 In effect, the aforementioned assertion shows that this problem is no longer limited to ascertaining which of the meanings within the normative frame will be applied by the legal authority; it suggests, more fundamentally, that "there is no way dispositively to settle where the line of demarcation falls in establishing the scope of the norm." n31 As Paulson sees it, this radicalization of the problem of indeterminacy anticipates Kelsen's shift toward a "will" theory of law in his late work. A discussion of Kelsen's difficult will theory of law is not pertinent for purposes of this paper. What interests me, rather, is that, from Gadamer's perspective, Kelsen's analysis of the problem of indeterminacy is informed by a representationalistic conception of legal interpretation. The devastating insight that a posited legal norm could lie "entirely outside" the applied normative frame continues to presuppose that the legal norm - as a frame of meanings - is a closed and unchanging corpus of meanings, awaiting discovery and ordering by legal cognition. To put it another way, the crisis of the frame theory of norm is the crisis of a representationalistic view on the distinction between subjectivity
and objectivity. Gadamer's alternative to representationalism is lucid: subjectivity and objectivity in the law cannot be understood independently of the mediated character of the human relation to reality. The very possibility of both objectivity and subjectivity in [*787] the law is anchored in the fact that human beings can only experience reality by interpreting it. The operation of legal inclusion and exclusion that makes it possible to objectify reality inevitably creates conditions whereby normative meanings can be exposed as subjective, as the expression of a particular interest. While the legal norm functions as the ground of the act that objectifies reality, the legal norm itself can be challenged as a principle of objectification. What subverts the law contests the legal norm's claim to generality, revealing it to be a more or less subjective criterion of normative inclusion and exclusion - that is, a more or less arbitrary inclusion and exclusion of values. n32 On Gadamer's view, what a legal order has marginalized can be brought back into the fold of law by redefining the scope of a legal norm, a legal institution, or a fundamental value of the legal order. As he sees it, the dialectic of legal interpretation promises a broader inclusiveness in response to the subversion of legal order. This, concretely, is the way in which legal interpretation acquits itself of the general task of hermeneutics: overcoming strangeness. n33 And to the extent that objectivity is the expression of rationality, the circle at work in legal interpretation defines legal rationality as such. As Gadamer sees it, legal rationality obtains fulfillment when interpretation reconciles law and what subverts the law in a higher-order legality, even though, in opposition to Hegel, this higher-order legality remains forever incomplete and provisional. On this reading, legal interpretation effects a "transformation into a communion ... ." n34 [*788] II. Revolution We reach here the point of greatest distance with respect to Kelsen's theory of interpretation; this is also the turning point of our inquiry, in the sense of a reversal of critical perspectives. Indeed, closer scrutiny of legal interpretation raises several questions with respect to Gadamer's philosophical hermeneutics. First, Gadamer's analysis does not sufficiently take into account that the positions within and without a legal order are asymmetrical: an authority within the legal order determines the conditions under which what has been excluded from the law may be admitted into the legal order. More pointedly, the asymmetry manifests itself in that a legal authority decides whether what calls for legal interpretation is familiar, strange or simply irrelevant. The legal institutionalization of this moment of decision cannot be adequately accounted for in terms of a "dialogue" (Gespr<um a>ch). n35 Second, although legal interpretation transforms legal order, this does not justify the further assumption that the hermeneutic redefinition of a legal order's claim to generality - Allgemeinheit - results in a communion - Gemeinsamkeit - between the legal order and what subverts it. While the dialectic of legal interpretation can include what has been excluded, this does not imply that what subverts the law is rendered legal in its own terms, such that, to use Gadamer's metaphor, the legal and the non-legal "fuse" into a higher-order whole. Third, and closely bound to the former point, legal interpretation does not merely integrate the strange into legal order; it also always neutralizes strangeness, leveling down the extraordinary to a variation of the ordinary. To lose sight of this is to strip strangeness of its ambiguity, collapsing the threat posed by subversion into a mere opportunity for legal change. These issues will not be pursued in the coming section, or at least not directly. The turning point of our inquiry has been reached above all because Kelsen's theory of the basic norm sheds light on a fundamental shortcoming of Gadamer's approach to subjectivity and objectivity in his account of legal interpretation. [*789] A. Gadamer on Legal Interpretation
We can be brief in presenting Gadamer's discussion of legal interpretation, for its contours have already been dealt with in the foregoing section. What is important, rather, is pinpointing where, from the perspective of the Pure Theory of Law, the project of a philosophical hermeneutics falls short of giving a radical account of the "hermeneutic problem" in the law. Primarily, legal interpretation has a paradigmatic significance for Gadamer's philosophical hermeneutics because it reestablishes the intimate connection between interpretation and application that had been severed by the methodological approach of the historical school. In its effort to secure scientific objectivity for these sciences, the methodological approach to interpretation brackets the question concerning the meaning of the text or historical tradition for the situation of the interpreter. Essentially, it factors out the moment of "application" inherent to interpretation. Legal practice, Gadamer points out, has always resisted this move, for the jurist or the judge must approach legal texts from the perspective of their application to the case at hand. Accordingly, legal interpretation offers a privileged vantage point for recovering the fundamental hermeneutical problem: "Application does not mean first understanding a given universal in itself and then afterward applying it to a concrete case. It is the very understanding of the universal - the text - itself." n36 The burden of Gadamer's analysis is to demonstrate that application cannot be understood purely as an act of "subsuming" a particular under a general. Rather, applying a rule or statute involves newly discovering the meaning of the law in light of the situation to which it must be applied. This act is both productive and reproductive; as Gadamer puts it, application is always a "creative supplementing of the law." n37 Thus, the legal notion of application is paradigmatic because it reveals the hermeneutic circularity at work in our access to the world. We find here, in an extremely concise formulation, the central insight about the dialectic of legal interpretation that we developed beginning from Kelsen's reference to the legal norm as a "scheme of interpretation." Significantly, in the same breath by which Gadamer evinces the structure of application, he also parries the charge of [*790] arbitrariness, as though he were speaking directly to Kelsen about legal certainty. He states:
The creative supplementing of the law ... is a task reserved to the judge, but he is subject to the law in the same way as is every other member of the community. It is part of the idea of a [legal order] that the judge's judgment does not proceed from an arbitrary and unpredictable decision, but from the just weighing up of the whole. n38 The substance of Gadamer's argument against Kelsen is that taking account of the concrete situation in which the norm must be applied does not introduce an element of subjectivity into legal interpretation. Rather, he counters by asserting that not taking account of the concrete situation of norm-application is to fall prey to subjectivity. In other words, the theoretical and practical problem of legal certainty can only be adequately addressed if one does not sever, as Kelsen does, the internal connection between application and interpretation. Not surprisingly, Gadamer's notion of application has greatly influenced jurisprudential discussions of legal interpretation. Ronald Dworkin, for instance, underscores its importance by arguing for what he calls a "constructive" concept of interpretation. n39 In Dworkin's sense of the term, the constructive character of legal interpretation is intimately bound with "Gadamer's crucial point, that interpretation must apply an intention." n40 Dworkin returns only a few pages later to Gadamer's "interpretative situation," arguing that the interpreter's critical appropriation of the past is germane to legal hermeneutics. This summary reference to Dworkin may suffice to show that Gadamer's philosophical elaboration of the concept of application has been a chief source of inspiration for anti-positivistic theories of law and legal interpretation. But how far does Gadamer's analysis take us in terms of a critique of legal positivism? In particular, is this critique the final word about the Pure Theory of Law's contribution to a theory of legal interpretation?
Gadamer's discussion of the judicial application of norms is not only the point at which his critique of Kelsen is most convincing but also, and paradoxically, the point at which the Pure [*791] Theory of Law turns the tables on the project of a philosophical hermeneutics. Consider once again the aforementioned quote from Gadamer: "It is part of the idea of a legal order that the judge's judgment does not proceed from an arbitrary and unpredictable decision ... ." The Kelsenian question about this passage is what determines an order as a "legal order"? Under what conditions can we speak at all about an individual as a "judge," as a legal authority? Lastly, under what conditions can we speak of the applicable norm as a "statute" (Gesetz), i.e., as a legal norm? These penetrating questions expose a fundamental presupposition that has remained hidden throughout the foregoing discussion of legal interpretation. In effect, it was only possible to describe the circularity involved in each act of legal interpretation by presupposing legal order. When we focused on the legal norm as a "scheme of interpretation," we took for granted that this scheme is a legal meaning. Here then is the problem: the foregoing inquiry has uncovered the structural moments of legal interpretation, but it has not explained what determines these as moments of legal interpretation. To put it in terms closer to Gadamer himself, the foregoing analysis takes for granted, in view of adumbrating the world of legal understanding, the world of legal understanding. Returning to Gadamer, surely this has to be part of the "hermeneutic problem" in the law. B. The Basic Norm and the "Universality" of Hermeneutic Experience This is the juncture at which Kelsen's theory of the basic norm (Grundnorm) is of great interest to a theory of legal interpretation. For the basic norm addresses the following question: under what conditions can meaning be interpreted as legal meaning? This question can also be formulated in terms of the act of law-setting: Under what conditions can an act be interpreted as an act of setting the law? n41 [*792] At first glance, Kelsen's answer is trivial: an act sets the law if it follows a legal norm. For example, the act that orders an individual to pay a sum of money, on pain of seizure of his or her goods, can be interpreted as a judicial decision, rather than as the command of a gangster, because the act follows a higher norm, e.g. a statute. In turn, an act is a legislative act, i.e., posits the relevant statute, because it follows yet a higher norm, a constitution, which itself may have been created in accordance with the rules set down in an earlier constitution. This regressive inquiry eventually leads back to the historically first constitution of a legal order. What determines the enactment of this first constitution as law-setting cannot be the sheer fact of its enactment, as this would be equivalent to deriving an "ought" from an "is." Rather, the determining factor is a higher - the highest - norm of a legal order: "One ought to behave as the [first] constitution prescribes." n42 Kelsen asserts that, by definition, this basic norm cannot be "set" (gesetzt) by a legal authority, but must be "presupposed" (vorausgesetzt), if an "ought" is to be interpreted as the first constitution, and an act as the enactment of the first constitution. n43 Although highly abridged, this presentation of the theory of the basic norm suffices for our purposes. Notice, to begin with, that the regression from the act of positing a legal norm to the presupposed basic norm clarifies in what sense the legal interpretation of reality always involves the understanding of a "legal world." Kelsen's key insight, in this respect, is that it is impossible to establish what defines an act as setting the law if this act is envisaged in isolation from other such acts. The interpretation of an act as law-setting necessarily involves, implicitly or explicitly, the co-interpretation of a series of other acts as acts of positing the law. To interpret an individual act as law-setting is to surpass - transcend - this act, in the direction of the norm(s) it applies and, ultimately, the basic norm that grounds the legal order as a whole. Thus, I read the theory of the basic norm as laying bare the structure of transcendence characteristic of interpretation in general and legal interpretation in particular: to look at a material fact, disclosing it as something, is also to look beyond the fact, at the legal order as a whole. This returns us to what we have already learned: in addition to a reference to [*793] another, legal interpretation always actualizes references to reality and to the legal order. To relate a meaning, as a legal meaning, to a material fact is to actualize this twofold relation. The legal comprehension of reality involves the pre-comprehension of a legal world, which means, from Kelsen's perspective, that whoever discloses something as possessing a legal meaning presupposes the basic norm of the apposite legal order.
The contribution of Kelsen's theory of the basic norm to our topic goes considerably further than this. It also suggests that an inquiry into the conditions of possibility of interpretation as legal interpretation requires an inquiry into the genesis of a legal world. "A" legal world, I say, and decidedly not the legal world, because the first constitution of a legal order and the first act of setting the law are never such in the absolute sense of the term, that is to say, the original production of law. There is no historical threshold where non-law gives way to law, no pre-juridical phase in human history that could be identified or described; the "first" constitution of a legal order always follows on the ruins of an earlier legal order. Accordingly, the destruction and production of legal order are the two faces of a single event, namely a normative rupture. By the same token, a concrete analysis of the conditions of possibility of legal interpretation must look retrospectively to a legal order's genesis and prospectively to the founding act of the legal order that replaces it. In a remarkable analysis of legal revolution, Kelsen succeeds in capturing the essential features of this twofold process of destruction and production. The setting he imagines is the attempt by a band of revolutionaries to overthrow a monarchy and install a republican form of government:
If the revolutionaries succeed, the old system ceases to be effective, and the new system becomes effective, because the actual behaviour of the human beings for whom the system claims to be valid corresponds no longer to the old system but, by and large, to the new system. And one treats this new system, then, as a legal system, that is to say, one interprets as legal acts the acts applying the new system, and as unlawful acts the material facts violating it. One presupposes a new basic norm, no longer the basic norm delegating lawmaking authority to the monarch, but a basic norm delegating lawmaking authority to the revolutionary government. If the revolutionaries were to fail because the system they set up remained ineffective ... then the initial act of the revolutionaries would be interpreted not as the establishing of a constitution but as treason, not as the making of law but as a [*794] violation of law. n44 Several interrelated aspects of this passage are of the utmost importance for a theory of legal interpretation. These aspects suggest that, despite the hermeneutic circularity at work in the law, legal interpretation is irreducible to other modes of interpretation envisaged by Gadamer. In other words, Kelsen's theory of the basic norm calls into question Gadamer's assumption that legal interpretation is paradigmatic for the hermeneutic enterprise as a whole. 1. Interpretative Incommensurability Whereas the subversion of legal order sparks a dialectic that shifts the divide between the legal and the non-legal, a fundamentally different picture emerges with the overthrow of legal order. Kelsen's analysis reveals that the essence of legal revolution is what might be called interpretative incommensurability. The problem is not that the act of the revolutionaries cannot be interpreted within the legal order they attempt to overthrow; it is that this material fact can only be interpreted as treason. The act's interpretability within the legal order - as treason - goes hand in hand with the act's radical uninterpretability - as constitution-making - within the same order. Conversely, the revolutionary interpretation of the act of overthrowing a legal order cannot be other than constitution-making, without betraying its claim to being the founding act of a legal order. Revolution confronts a legal order with an act that is both entirely familiar - as the expression par excellence of illegality - and entirely strange - as the extreme form of danger/possibility. From this perspective, Kelsen would have done better to speak of "terrorism" rather than of "treason," as the former better expresses the revolutionary condition of extreme familiarity and strangeness confronting a legal order. This insight implies a radical critique of Gadamer's central claim concerning the universality of the hermeneutic experience. According to his perspective, the hermeneutic experience may raise claim to universality because it underlies all forms of the human relation to the world:
There is always a world already interpreted, already organized in its basic relations, into which experience steps as something new, upsetting what has led our expectations and undergoing [*795] reorganization itself in the upheaval. Misunderstanding and strangeness are not the first factors ... . Just the reverse is the case. Only the support of familiar and common understanding makes possible the venture into the alien, the lifting up of something out of the alien, and thus the broadening and enrichment of our own experience of the world. n45 Kelsen's account of revolution as interpretative incommensurability suggests, to the contrary, that no encompassing point of view can bridge the interpretative abyss between treason and constitution-making; no dialectic succeeds in integrating the revolutionary act into the legal order. Revolution brings to a halt hermeneutic experience as the dialectic of generality and particularity within a legal order. 2. Normative Limits To put it another way, revolution confronts legal interpretation with its limit, in a strong sense of the term. As aforementioned, the dialectic of legal interpretation points to a first normative limit, a limit that can be shifted, i.e., widened or narrowed. This notion of limit is related to the range of concrete normative possibilities available to, and exposed by, the process of legal interpretation. Interpretative incommensurability points to a second limit of interpretation, namely a normative limit that cannot be shifted, but only overstepped, and, when overstepped, leads to another legal order. To interpret the act of the republican revolutionaries as constitution-making, instead of as treason, is not to widen the scope of legality by exploiting the normative possibilities of the monarchical legal order they aim to overturn; it is to step out of one legal order and into another. n46 The interpretative gap separating treason and constitution-making illustrates the radical unintelligibility that characterizes a normative rupture: what cannot be said in one legal order can only be said by entering another order. To "presuppose a new basic norm" is to go, like Alice, through the looking glass. 3. Truth and Violence Kelsen's analysis of revolution brings into focus another limit [*796] to the universality of hermeneutic experience, one that is the mirror image of the "end" of interpretation within a legal order. Gadamer suggests in the aforementioned citation that familiarity, not strangeness, is what comes "first." As I see it, Kelsen's discussion of the act that sets the "first" constitution suggests that what comes "first" is neither familiarity nor strangeness, but an act that differentiates between familiarity and strangeness, between law and non-law, between "we" and "they." By definition, this "first" act cannot be justified, to use Gadamer's words, by reference to "a [legal] world already interpreted, already organized in its basic relations." n47 This insight raises the delicate question concerning the relation between truth and violence in law. By including certain values and excluding others, the founding act creates the conditions for legal interpretation and for truth. Solely by virtue of the normative closure that inaugurates a legal order can interpretation disclose material facts as possessing "this" or "that" legal meaning. As is well known, Gadamer's discussion of truth in Truth and Method relies on Heidegger's characterization of "disclosure" as the fundamental meaning of truth, a meaning that lies at the basis of the latter's traditional definition as the "correspondence" between reality and judgment. n48 Consequently, each act of disclosing something as something within a legal order leads back to, and re-enacts, the act of normative inclusion and exclusion that founds this order. This fundamental achievement of the inaugural act of law-setting is no innocent undertaking. Kelsen notes, in this respect, that the revolutionary coup d'etat either "succeeds" or "fails" in its attempt to overthrow the monarchical legal order. The significance of this point goes well beyond the specific example envisaged by Kelsen: an order of positive law never merely fades away; nor do old soldiers, for that matter. Rather, it is always more or less forced aside by a new legal order. Although the founding act claims to express core values of the community and, thus, to be legitimate, this claim is not and cannot be derived from the legal order it replaces; to the contrary, it sets itself off from, and imposes itself against, the latter's claim to legitimacy.
Accordingly, I view Kelsen's theory of the basic norm as highlighting the ambiguity of the capacity to commence things deployed by the pouvoir constituant, where the reference to "capacity" precedes any evaluation, whether positive or negative, [*797] of power. Certainly, the idea of a pure commencement in politics - a creatio ex nihilo of legal order - is untenable. Yet the exercise of constituting power must be understood as an act of seizing the initiative. On the one hand, the act that gives rise to a legal order opens up a common space that enables individuals to recognize themselves as members of one and the same community; on the other, the impetus that is required to set something new on its way always involves a rupture, a breach, and, in this sense, an inevitable moment of violence. To "seize" and to "commence" are the two faces of the act that gives birth to a legal order. n49 From this perspective, Kelsen can be seen as unfolding a radical critique of Gadamer's concept of authority. According to Gadamer, "acknowledging authority is always connected with the idea that what the authority says is not irrational and arbitrary but can, in principle, be discovered to be true." n50 This view conceals the irredeemable ambiguity of legal authority. Kelsen's profound insight, as I see it, is that violence lies at the genesis of legal truth, even though truth in law does not simply coincide with violence. By implication, violence is not limited to the inaugural act of a legal order; it remains at work in all acts that authoritatively set the law. Kelsen's analysis of the genesis of legal order shows, counter to Gadamer, that the ambiguity of legal authority resides in the fact that truth and violence are never entirely separable in the legal act of disclosing something as something. 4. Avoiding Reification Finally, the reference to violence and truth in the law leads to the nub of Kelsen's contribution to a theory of legal interpretation. Precisely because might intervenes in the act of setting the first constitution, only the presupposition of the basic norm grants this act the character of right, of law-setting. Kelsen thus approaches what I take to be the defensible aspect of Jacques Derrida's critique of Gadamer. In his initial response to Gadamer's important article, Text and Interpretation, n51 Derrida focuses, amongst others, on Gadamer's thesis of a "continuity" of meaning unfolded in understanding. In an extremely terse response, on [*798] which he does not further elaborate, Derrida asks whether interpretation should not rather be viewed in terms of rupture, fracture, and discontinuity. n52 Would not Kelsen's analysis of the genesis of a legal order lend credence to Derrida's critique, in the sense that every order of positive law is radically contingent because legal interpretation always moves on this side of a normative rupture that cannot be "closed" interpretatively from within the order itself? On this reading of the significance of the basic norm, Kelsen stands not only surprisingly close to Derrida but also to Heidegger, Merleau-Ponty, and Foucault. In different ways, each of these philosophers has shown that the event that gives rise to an order is not a part of the order itself. I read Kelsen as arguing that the basic norm is the condition whereby, retroactively, the founding act can be viewed as being part of the legal order it creates. Ultimately, the basic norm is a way of both highlighting and dealing with the internal contradiction involved in referring to a "first constitution." Thus, the theory of the basic norm can be understood as an antidote to the reification of legal interpretation. Indeed, the danger of reification lurks in the genesis of legal order. Interpretation becomes reified when an act is seen as possessing of itself the character of the founding act of a legal order and when the meaning of this act is seen as being of itself a legal meaning, namely the first constitution of a legal order. Kelsen's theory of the basic norm is anything but the rationalization of an order of positive law, as many of his critics would have us believe; instead, the basic norm is his way of calling attention to the irrefragable ambiguity of the founding act of a legal order, an ambiguity that remains "at work" in all subsequent acts of legal interpretation within the order. The main irony of a confrontation between Gadamer and Kelsen may well be that whereas the former's question, "What defines legal interpretation as interpretation?", exposes the positivistic presuppositions of the latter's theory of interpretation, Kelsen's question, "What determines interpretation as legal interpretation?", reveals that Gadamer ultimately succumbs to a form of legal positivism.
Legal Topics:
For related research and practice materials, see the following legal topics: Civil ProcedurePleading & PracticePleadingsGeneral Overview FOOTNOTES:
n1. See Hans Kelsen, Pure Theory of Law 348-49 (Max Knight trans., University of California Press 2d ed. 1970) (1967) (second edition of the Reine Rechtslehre) [hereinafter Kelsen, Pure Theory of Law].
n2. Hans Kelsen, Introduction to the Problems of Legal Theory 80 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Clarendon Press 2d ed. 1992) (1934) (first edition of the Reine Rechtslehre) [hereinafter Kelsen, Problems of Legal Theory].
n3. Id. at 81.
n4. Id. at 85.
n5. See Stanley L. Paulson, Kelsen on Legal Interpretation, 10 Legal Stud.: J. Soc'y Pub. Tchrs. L. 136 (1990) for a fine survey and discussion of Kelsen's relevant writings.
n6. Kelsen, Pure Theory of Law, supra note 1, at 356 (emphasis added).
n7. Id.
n8. Kelsen, Problems of Legal Theory, supra note 2, at 87.
n9. Id. at 10. See Kelsen, Pure Theory of Law, supra note 1, at 3-4.
n11. See Hans-Georg Gadamer, Text and Interpretation, in Dialogue and Deconstruction: The Gadamer-Derrida Encounter 28, 29 (Diane P. Michelfelder & Richard E. Palmer eds., 1989).
n12. See Edmund Husserl, Experience and Judgment: Investigations in a Genealogy of Logic 88-91 (Ludwig Landgrebe ed., James S. Churchill & Karl Ameriks trans., 1973) [hereinafter Husserl, Experience and Judgment]. This insight challenges Kelsen's attempt to contrast the interpretative character of the law with perception. Indeed, Kelsen suggests that "[legal] "meaning' is not something one can see or hear in the act qua external material fact, as one can perceive in an object its natural properties and functions, such as colour, rigidity, and weight." Kelsen, Problems of Legal Theory, supra note 2, at 9. This view of perception is essentialistic; the perception of so-called "natural properties and functions" of an object is no less a hermeneutic achievement than the assignment of a legal meaning to an event.
n13. Gadamer, supra note 11, at 30.
n14. In particular, behavior that "breaks" the law actually "fits" it, if such behavior poses no problem for legal interpretation, i.e., if it does not contest the boundary between the values protected by a legal order and those it does not protect. This insight is well known to criminal law doctrine, according to which behavior is criminal by virtue of fulfilling, rather than deviating from, the act as described in the pursuant norm.
n15. Heidegger has coined the distinction between "handiness" (Zuhandenheit) and "objective presence" (Vorhandenheit) to characterize two different ways in which human beings relate to tools. In the first, the "toolness" of a tool remains unthematic and taken for granted in the process of being used in a practical activity. In the second, the "toolness" of a tool is rendered thematic precisely when it does not "work," e.g., when the tool is missing, damaged, etc. The interruption of the practical activity in which a tool has its function not only calls attention to the tool as a tool but also to the web of relations in which it functions as such, i.e., the workplace to which it belongs. This web of practical relations is a concrete illustration of what Heidegger calls a "world." See Martin Heidegger, Being and Time 16 (Joan Stambaugh trans., State University of New York Press 1996) (1953) (translation of Sein und Zeit). Drawing on this distinction, one could say that the interruption of the reference of a normative scheme to what calls for interpretation, such that the scheme appears as inapplicable, means that it forfeits its "handiness," appearing instead as "objective presence." By the same token, the inapplicability of the legal norm also renders thematic the legal order to which it belongs, such that the way this order distinguishes between law and non-law loses its taken-for-grantedness.
n16. Two points should be kept in mind. First, pure familiarity and pure strangeness are boundaries of (legal) interpretation, boundaries that can be approximated but never reached; second, what calls for (legal) interpretation manifests itself as being predominantly familiar or predominantly strange.
n18. Hans-Georg Gadamer, Truth and Method 354 (Joel Weinsheimer & Donald G. Marshall trans., Crossroad 2d ed. 1989) (1975) [hereinafter Gadamer, Truth and Method]. Significantly, Gadamer's analysis of the negativity of hermeneutic experience is akin to Husserl's analysis of negation in the structures of perception. See Husserl, Experience and Judgment, supra note 12. Sch<um u>tz and Luckmann describe this highly general pattern of rationality in terms of "types" which arise as a response to "atypical" or "unfamiliar" situations, that is, situations that do not fit in the available "types" with which we interpret reality: "a type arises from a situationally adequate solution to a problematic situation through the new determination of an experience which could not be mastered with the aid of the stock of knowledge already on hand." Alfred Sch<um u>tz & Thomas Luckmann, The Structures of the Life-World 231 (Richard M. Zaner & H. Tristram Engelhardt, Jr. trans., Heinemann 1974) (1973). This pattern of rationality also lies at the core of American pragmatism:
According to this [pragmatist] model, all perception of the world and all action in the world is anchored in an unreflected belief in self-evident given facts and successful habits. However, this belief, and the routines of action based upon it, are repeatedly shattered; ... our habitual actions meet with resistance from the world and rebound back on us. This is the phase of real doubt. And the only way out of this phase is a reconstruction of the interrupted context... . This reconstruction is a creative achievement ... . Hans Joas, The Creativity of Action 128-29 (Jeremy Gaines & Paul Keast trans., Polity Press 1996) (1992).
n19. Michel Troper has made a related point when noting that "the juridical existence of a statutory norm does not result from its conformity with the Constitution but from the judge's interpretation thereof. Validity does not stem from the superior norm but from the process of producing inferior norms." Michel Troper, Kelsen, la theorie de l'interpretation et la structure de l'ordre juridique, in Revue Internationale de Philosophie 526 (1981) (translation by the author).
n20. Analogously, Neil MacCormick refers to what he calls "ordinarily necessary" of "presumptively necessary" conditions of validity of legal norms:
No formulation, however detailed, of the institutive rule of an institution can be taken as giving a complete list of sufficient conditions for the validity of a purported instance of the institution, any more than as stating conditions each of which is in all cases necessary. Any such formulation of a rule has to be read as subject to possible further exceptions, has to be read, if we would be realistic, in the light of relevant legal principles already established and of possible new ones based on conceptions of the purpose of the institution in the context of changing social conditions and values. Neil MacCormick, Law as Institutional Fact, in Neil MacCormick & Ota Weinberger, An Institutional Theory of Law: New Approaches to Legal Positivism 71 (1986).
n21. See Heidegger, supra note 15, 32. See also Gadamer, Truth and Method, supra note 18, at 265-71; Hans-Georg Gadamer, Vom Zirkel des Verstehens, in Hermeneutik II: Wahrheit und Methode: Erg<um a>nzungen - Register 57 (1986).
n22. See generally Hans Lindahl, Authority and Representation, 19 Law & Phil. 223 (2000).
n23. See Paul Ric<oe>ur, The Conflict of Interpretations: Essays in Hermeneutics (Don Ihde ed., 1974).
n24. Kelsen, Pure Theory of Law, supra note 1, at 279 (translation altered by the author).
n25. Hans-Georg Gadamer, Philosophical Hermeneutics 55 (David E. Linge ed. & trans., 1976).
n26. See discussion supra Part I.B.
n27. See supra note 10 and accompanying text.
n28. Paulson, supra note 5, at 150.
n29. Kelsen, Pure Theory of Law, supra note 1, at 354 (emphasis added).
n30. Paulson, supra note 5, at 151.
n31. Id.
n32. The implications of this insight are in no way limited to Kelsen. For example, Bork's well-known defense of the theory of "original understanding" in constitutional adjudication is an attempt to account for the distinction between subjectivity and objectivity in the law within the framework of a representationalistic theory of interpretation. As he puts it:
When we speak of "law," we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires... . It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 143 (1990). Gadamer's objection would be that while the meaning of the law is not and cannot be independent of the act that interprets the law, this does not imply subordinating the law to the "subjective desires" of the judge. The judge is indeed committed to "preserving the Constitution," as Bork puts it, id. at 159, but this is a commitment to preserving the Constitution's claim to generality.
n33. See Gadamer, Truth and Method, supra note 18, at 387.
n34. Id. at 379.
n35. In this way, it would be possible, I believe, to recover Kelsen's insight that the act of setting the law is an act of the will, not merely an act of interpretation. See, amongst others, Kelsen, Problems of Legal Theory, supra note 2, at 11-12.
n36. Gadamer, Truth and Method, supra note 18, at 341.
n37. Id. at 329.
n38. Id.
n39. Ronald Dworkin, Law's Empire 52 (1986).
n40. Id. at 55. On the German scene, the Gadamerian notion of application has played an important role in, amongst others, the well-known Josef Esser, Vorverst<um a>ndnis und Methodenwahl in der Rechtsfindung: Rationalit<um a>ts-garantien der richterlichen Entscheidungspraxis (1970), albeit that Esser ultimately embraces a form of positivism. For a critique of Esser in this vein, see Bert van Roermund, Law, Narrative and Reality: An Essay in Intercepting Politics 133-38 (1997).
n41. I make no claim of providing an exhaustive treatment of Kelsen's theory of the basic norm; the forthcoming analysis limits itself to those aspects of the theory that seem most apposite to the debate between Kelsen and Gadamer. Several first-class articles dealing with the basic norm are collected in Normativity and Norms: Critical Perspectives on Kelsenian Themes (Stanley L. Paulson & Bonnie Litschewski Paulson eds., Bonnie Litschewski Paulson et al. trans., 1998). Although I will not attempt to position this Article by reference to the vast literature on the basic norm, certain articles have been important sources of inspiration for the final section of this Article. See generally Emilios A. Christodoulidis, The Aporia of Sovereignty: On the Representation of the People in Constitutional Discourse, 12 King's C. L.J. 111 (2001); Bert van Roermund, Authority and Authorisation, 19 Law & Phil. 201 (2000).
n42. Kelsen, Pure Theory of Law, supra note 1, at 201. This, as Kelsen notes, is a simplified formulation of the basic norm, which omits reference to sanctions as a constitutive element of legal norms.
n43. See Kelson, Problems of Legal Theory, supra note 2, at 58; Kelson, Pure Theory of Law, supra note 1, at 199.
n45. Gadamer, supra note 25, at 15.
n46. See Bernhard Waldenfels, Auf der Schwelle zwischen Drinnen und Draubetaen: Ph<um a>nomenologische Grenzbetrachtungen, in Der Stachel des Fremden 31 (1990).
n47. See Gadamer, supra note 25.
n48. See Heidegger, supra note 15, 44. See also Was ist Wahrheit?, in Gadamer, supra note 21, at 44.
n49. I have developed these ideas at greater length. See generally Hans Lindahl, Sovereignty and Representation in the European Union, in Sovereignty in Transition (Neil Walker ed., forthcoming 2003); Hans Lindahl, Acquiring a Community: The "Acquis" and the Institution of European Legal Order, Eur. L.J. (forthcoming 2003).
n50. Gadamer, Truth and Method, supra note 18, at 280.
n51. See Gadamer, supra note 11.
n52. See Jacques Derrida, Three Questions to Hans-Georg Gadamer, in Dialogue and Deconstruction: The Gadamer-Derrida Encounter 52-54. This theme also lies at the heart of Jacques Derrida, Force of Law: The "Mystical Foundation of Authority", 11 Cardozo L. Rev. 919 (1990).

Confronting Kelsen and Gadamer On Legal

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Page 2 24 Cardozo L. Rev. 769, *769

Page 3 24 Cardozo L. Rev. 769, *771

Page 4 24 Cardozo L. Rev. 769, *773

Page 5 24 Cardozo L. Rev. 769, *775

Page 6 24 Cardozo L. Rev. 769, *777

Page 7 24 Cardozo L. Rev. 769, *780

Page 8 24 Cardozo L. Rev. 769, *782

Page 9 24 Cardozo L. Rev. 769, *784

Page 10 24 Cardozo L. Rev. 769, *786

Page 11 24 Cardozo L. Rev. 769, *789

Page 12 24 Cardozo L. Rev. 769, *790

Page 13 24 Cardozo L. Rev. 769, *793

Page 14 24 Cardozo L. Rev. 769, *794

Page 15 24 Cardozo L. Rev. 769, *796

Page 16 24 Cardozo L. Rev. 769, *798

n3. Id. at 81.

n4. Id. at 85.

n8. Kelsen, Problems of Legal Theory, supra note 2, at 87.

Page 17 24 Cardozo L. Rev. 769, *798

n10. Kelsen, Problems of Legal Theory, supra note 2, at 11.

n13. Gadamer, supra note 11, at 30.

Page 18 24 Cardozo L. Rev. 769, *798

n17. Kelsen, Problems of Legal Theory, supra note 2, at 85.

Page 19 24 Cardozo L. Rev. 769, *798

n26. See discussion supra Part I.B.

n27. See supra note 10 and accompanying text.

n28. Paulson, supra note 5, at 150.

n30. Paulson, supra note 5, at 151.

Page 20 24 Cardozo L. Rev. 769, *798

n34. Id. at 379.

n36. Gadamer, Truth and Method, supra note 18, at 341.

n37. Id. at 329.

Page 21 24 Cardozo L. Rev. 769, *798

n39. Ronald Dworkin, Law's Empire 52 (1986).

n44. Kelsen, Problems of Legal Theory, supra note 2, at 59.

n45. Gadamer, supra note 25, at 15.

n47. See Gadamer, supra note 25.

Page 22 24 Cardozo L. Rev. 769, *798

n50. Gadamer, Truth and Method, supra note 18, at 280.

n51. See Gadamer, supra note 11.

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