By focusing on the practical meaning of legal positivism in the contemporary debates, we are tempted to revisit Kant, for whom, on the one hand the practice without theory is blind and, on the other hand, theory divorced from practice is useless. However, this would be a way to end the discussion, rather than to start it. It seems obvious to anyone that the function of scientific theories, at least nowadays, is not limited to a disinterested contemplation of reality, as the Greeks wanted, but rather serves to solve human problems, albeit facing the inevitable risk of turning itself into ideology, a risk that, to paraphrase Kelsen, is part of the honour of science Kelsen (1998b, 25). It does not seem possible to understand science - especially legal science - as a set of neutral ("uninterested") descriptions of the reality. If there is something justifies scientific knowledge, it is beyond any doubt its ability to help us understand the world in order to try to change it at a later stage.
From this perspective, we are able to understand that legal positivism does not intend to be neutral, but rather non-evaluative. Unlike what is claimed by its critics, there is an ideology which sustains any form of legal positivistic thinking, as I will attempt to demonstrate throughout this essay. Nevertheless, to admit the ideological nature of legal positivism's form of knowledge - which is a feature that pervades each and every type of human knowledge - should not lead one to give up the values of academic rigour and methodological control; in fact, what it does mean is merely to reinforce them. Therefore, to look at one's object of inquiry as closely as possible is not, as the post-modernists would claim, heresy or nonsense. It is rather a gnoseological attitude which choses to describe the reality through judgments of fact, repelling the pseudo-scientific theories based on judgments of value. It is this kind of attitude that constitutes the starting point of the ideology of legal positivist.
Although one can criticize this proposition by claiming that a description of the reality through judgments of value is more convincing or politically profitable - or even quarrel with the definitions of "fact" and "value" -, it does not seem permissible to sustain that there is simply no difference between these ontological concepts, which are the fundamental distinctions from which any form of legal positivism must start.
For developing methodologically controlled narratives of the juridical reality, thus failing to give an opinion on the social or axiological adequacy of the objects of inquiry, legal positivism was attacked by practically all other schools of legal thinking, from the realists to the self-proclaimed post-positivists. The major objection raised against legal positivists asserts that a type of science which is incapable of providing criteria for action, that is, which is limited to describing things as they are, is, in a few words, an useless science. Thus, it seems urgent and necessary to deepen the debate on the role that a positivist understanding can perform in legal practice. In simpler terms, we wonder how the conceptual apparatus developed by legal positivism since the late nineteenth century can help lawyers in their daily work. It is not simply to offer simplistic answers, such as the ones formulated by Kant, who stated that theories are necessary to well informed practice. This is truism. To be useful, the debate needs to be verticalised and to discuss to what extent certain concepts and structures of legal positivist thought are, despite their theoretical nature, necessary for the daily practice of law. Well, among the various legal positivist constructions without which legal practice seems unthinkable, we selected what is perhaps the most problematic of all and is considered by many authors as the "Achilles heel" of the most consistent legal positivist system ever proposed. We refer to Kelsen's basic norm.
According to the enemies of legal positivism, who classify it as a flawed theory and unworkable for the practice of law in hyper-complex societies, the basic norm is equivalent to nec plus ultra of theoretical delusions, it doesn't play any effective role in the juridical work. So it deserves to be forgotten or, at best, preserved in the footnotes of Philosophy of Law books, where it would be exposed as an idle and intriguing museum piece, a symbol of ancient times, when legal scientists were all fools.
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Due to its abstract feature and its controversial nature - juridical fiction, logical-transcendental hypothesis, presupposition? - the basic norm was never well understood, except by a small circle of jurists versed in the secrets of Kelsen's normativism. Yet, and perhaps even unconsciously, the notion of the basic norm plays a central role in the practice of law. The purpose of this paper is to bring into light the paradigmatic aspect of the basic norm, as an essential concept for the legal conformation of the contemporary State, but not before we review the main theoretical elements necessary to understand legal normativism, which is the school of legal thinking in which the theory of the basic norm arises (section 2). In section 3, we discuss the nature and functions of the basic norm, in order to finally conclude with an alternative approach to the basic norm as a scientific postulate.
Normativism is a nineteenth century legal positivist school of thought. By being legal positivist, legal normativism accepts two main assumptions, namely: a) to restrain itself to the study of the existing law, i.e., to the actually exiting law in social reality, which brings as a consequence the denial of the existence of any metaphysical legal order, such as natural law; b) the assumption of an epistemological stance oriented towards a non-evaluative point of view and the construction of a rigorous scientific discourse, which is influenced by the Vienna Circle of Carnap, Neurath and Schlick. Legal normativism was initially developed by German scholars such as Edmund Bernatzik, Otto Mayer and Paul Laband, who started from the fundamental work of Carl Friedrich von Gerber and Georg Jellinek to try to establish a scientific and objective view of law and the State. However, only after the work of Hans Kelsen (1881-1973) it gained theoretical-philosophical density, becoming vividly discussed in academic circles. We can list some jurists who, in a greater or lesser degree, were normativists: Adolf Julius Merkl, Alfred Verdross, Felix Kauffmann, Felix Schreier, Franz Weyr and Josef Kunz, authors who, along with Kelsen, joined the Viennese School (Wiener Schule). Although not being properly normativists, we can highlight the names of Alf Ross, Herbert Hart, Joseph Raz, Luis Legaz y Lacambra and Norberto Bobbio, who have adopted several points of Kelsen's normativism.
The basic principles of the legal normativism are given in the "Pure Theory of Law" ("Reine Rechtslehre") by Kelsen, whose second - and final edition - was published in 1960. Earlier, in 1911, Kelsen had already laid the foundations of the legal normativism in the book "Main Problems in the Theory of Public Law" ("Hauptprobleme der Staatrechtslehre"), which would be followed by the first edition of "Pure Theory of Law" in 1934 and "General Theory of Law and State" in 1945. By the time of publication of the latter, Kelsen was living in the United States of America due his Jewish ancestry and Nazism was on the rise in Europe. It is also convenient to keep in mind the "General Theory of Norms" ("Allgemeine Theorie der Normen"), a posthumous work of 1979 that should be carefully analyzed because it is a collection of texts and articles written by Kelsen in very different stages of his life.
In his Pure Theory of Law, Kelsen is concerned with the form of law, embracing the lessons of Aristotle, who believes that the only possible science is the universal one, because the particular escapes from the generalizing and synthesizing capacity inherent to human knowledge. Regarding to the legal experience, only the form is shown to be universal, since its content is infinitely variable depends on certain historical, political, economic, ideological conditions. Kelsen, therefore, holds that legal theorists are obliged to devise a valid, formal and empty fundament to law- as we shall see in section 3.2 - in order to contrast it with the indeterminacy and particularity of their own moral and political criteria under which good part of the legal theories of the time were conceived (Honoré 2007, 95).
We can't accuse Kelsen of being unclear as to the intentions that inform his theoretical approach. In the very first line of the first page of the definitive edition of the "Pure Theory of Law", he states: "The Pure Theory of Law is a theory of positive law - of positive law in general, not of a particular legal order. It is a general theory of law, not an interpretation of specific national or international legal norms" (Kelsen 1997, 1). These words, as one can easily notice, are very similar to those[1] of John Austin when he summarizes the scope of his famous work "The province of jurisprudence determined".
The gravitational centre of Kelsen's universalistic project is rooted in the concept of a legal norm; an objective "ought" by which we characterize law as a system of sanctions - e.g., social morality, religion - thanks to the possibility of bringing all the system elements to an unifying instance called basic norm (Grundnorm) (Goyard-Fabre 1986, 34; Kelsen 2007a, 13). The legal norms are commandments directed at the human conduct which allow, prohibit, command and define competences, presenting socially organized and immanent sanctions, in this precise point they are different from, respectively, social
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and religious norms. Although legal normativism is more than a simple for of logicism, we must look closely at the logical structure of the sanction, which is not simply identical to a penalty, but is rather a normative consequence - positive or negative - in the logical sense, i.e., it is a result that derives from the operative conditions fixed in the first section of the norm, by means of which it selects certain acts or facts which are to be interpreted as capable of creating law.
The legal norm is the most comprehensive and simpler concept of the legal phenomenon. It is able of present itself either as a rule or as a principle. Hence, many of the criticisms directed at the contemporary normativism are meaningless. This view has never despised the idea of legal principles, which central to the so-calle "neoconstitucionalism". Regarding to the studies of Josef Esser and many other authors who have dedicated their works to the study of the structural differences between principles and rules - let us remind Aulis Aarnio, Klaus Günther, Robert Alexy e Ronald Dworkin, just to name some of the most prominent -, the contemporary versions of legal normativism holds that the rules are legal norms that have a high level of concreteness, acting through a binary logic (either X or Y), while the principles are legal norms that have higher level of abstraction and, at the time of their application, can be balanced with one another without creating logical-normative antinomies. Nevertheless, both rules and principles are legal norms of a coercive nature and, therefore, part of the legal positivist subject of inquiry.
On the other hand, Kelsen insists on the difference between the legal norms, as formal objects of the science of law, and the juridical propositions (Rechtssätze) that describe them. While legal norms are created by the sources of law, such as legislators and judges, the juridical propositions are the result of a theoretical study of legal norms, leaving its creation only to the scientist of law. This type of jurist doesn't create any legal norms, but only describe them through scientific procedures in view of the basic category that gives them reality, namely the validity.
Kelsen's normativism - also called logical normativism - is based on the strict distinction between the spheres of "is" (Sein) and "ought" (Sollen), that founded the epistemological dualism between fact and value, on the one hand, and cognition and volition, on the other. The legal norm is seen as a possible scheme of interpretation of the human behaviour, becoming logically an objective sense of acts of will. The objectivity of the legal norms is due to the fact that the lower-level norms base their existence in the superior norms, all of them understood systematically as elements of the normative pyramid (Stufenbau), whose peak is, in the domestic law of each State, the Constitution. By now, we can conclude that the existence of the legal norm is formal, not factual.
Kelsen doesn't distinguish the sphere of the existence from that of the validity of a norm. As logical normativism teaches, both the spheres coincide into the same concept. The existence of the legal norm - i. e. its validity - depends on its creation by competent authorities and according to the proper legal procedures (that is why the legal normativists state that law regulates its own creation). Moreover, a legal norm must be accordance with the contents of the legal order to which it belongs. The task of verifying this harmony lies with the law-applying bodies, which make the so called authentic interpretation. Once existing, the legal norm may or may not be effective. We name effectiveness the factual production of normative effects, which may happen automatically, as in the case of norms that define competences and legal situations or when there is: a) the spontaneous observance of legal duties by the citizens, or b) the coercive application of negative sanctions by the bodies authorized to do so.
Kelsen emphasizes the dissociation between the spheres of validity and effectiveness. While the former has a formal and logical nature, the latter has a substantive and sociological character. To be valid, a legal norm doesn't need to be effective. However, a minimum degree of effectiveness is a condition for its validity, since a valid norm may loose this attribute over time because of its disuse. Notwithstanding this, the minimum degree of effectiveness is not the basis of the validity of a norm. This role is actually reserved exclusively to the basic norm. The social normativity - the fact that people obey to the legal norms that are believed to be created by a legitimate source of law - is not sufficient to explain the specifically juridical character of a law (Honoré 2007, 101). According to Kelsen, it is necessary to proceed with an objectification of the normative commandment; otherwise we can't distinguish between the rules established by the State from those made by a group of bandits. And this is essential for the notion of the basic norm.
Perhaps the most controversial aspect of legal normativism lies in the definition of the nature of the basic norm, which is a topic that will be explored in depth in the next section. Kelsen hesitated for years in its characterization, classifying it as a legal fiction, based on a work of Vaihinger entitled "Philosophy of As-If" ("Die Philosophie des Als-Ob"), and as a hypothesis, relying on Kant's interpretation carried out by Cohen. Despite such uncertainty, Kelsen was fully aware that the notion of the basic norm was the key
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needed to establish a theory of law free from metaphysic and methodological syncretism (Hammer 2007, 177). Although the unclearness of the chronological and conceptual evolution of the basic norm's theory, it must be borne in mind the last statement of Kelsen contained in the second edition of the "Pure Theory of Law", whereupon he leaves no doubt as to the hypothetical logical-transcendental character of the basic norm. This view is confirmed by the famous letter of August 3, 1933 in which Kelsen introduces to Renato Treves his conception of the basic norm,[2] presenting it as a legal non-positive norm, i.e., a norm that is not affected by human acts of will, but rather presupposed by legal thought.
At various moments in his work, Kelsen elaborated differently the status of the basic norm, an effort that, according to Raz, was never fully successful, allowing the emergence of fierce detractors as much as faithful defenders of the Pure Theory of Law (Raz 2007, 47). It seems that the first attempts led Kelsen to conceive the basic norm as a legal fiction. Supposedly he based these ideas in a work of Hans Vaihinger (1852-1933) dated from 1911 - "Philosophy of As-If" ("Die Philosophie des Als-Ob") -, according to which a fiction is something contradictory in relation to reality and itself (Vaihinger 2002, 16), features that would characterize the basic norm. In fact, this norm is not established by any real act of will (and therefore it is contrary to reality) and does not require any superior norm to give it an objective sense of ought, violating, thus, its own existence condition, namely, the validity (contradiction with itself). The fiction would be something different from a hypothesis, since the latter needs to be proven. Since it describes the reality in a faithful way, the hypothesis is said to be true. Its function is to weed out contradictions in the scientific knowledge. Furthermore, a fiction lives with contradictions and exists to deal with reality, not to objectively describe it. Just like a hypothesis, the fiction is also temporary. Upon reaching its goal - to create an undiscovered and fake vision of reality - it can be abandoned.
Despite the characterization of the Grundnorm as a fiction be presented in the "General Theory of Norms" - in theory the last work of Kelsen - to consider it as definitive or as a sign of the alleged change of position of Kelsen - from the logical-transcendental hypothesis to the fiction - seems wrong. The "General Theory of Norms" was edited by the Hans Kelsen Institute in 1979 and brings together several texts of Kelsen, some of them not intended for publication, as we can read in the introduction prepared by Ringhofer and Walter. Many of these texts have uncertain dates and, therefore, is not possibly to know exactly when Kelsen conceived the Grundnorm as a legal fiction. Due to the fact that "General Theory of Norms" is the last work of Kelsen, many people started to believe (without the appropriate critical sense) that he had changed the view expressed in the latest edition of the "Pure Theory of Law", in which the basic norm is treated as a transcendental-logical hypothesis. However, in 1987 this idea started to fade away thanks to the publication of a Kelsen's letter dated from August 3, 1933 - long before, thus, the definitive formulation of the Pure Theory of Law - and addressed to Renato Treves. In this missive, Kelsen explicitly says that in the beginning of his works he thought of building the basic norm as a fiction (inspired by Vaihinger). Nevertheless, since this strategy was very problematic, he choose Kant's theories, as they are seen by Cohen. Thus, Kelsen created the basic norm as a logical-transcendental hypothesis. Already in 1919, in his article "Zur Theorie der juristischen Fiktionen" (available in Kelsen, 1968), Kelsen pointed out several problems concerning the fictional qualification of normative constructs, because they could never be contradictory to the reality, as required by Vaihinger, since these two spheres - the "is" of reality and the "ought" of norms - are different and exist simultaneously as two ontic levels. Then in 1923, Kelsen came to refer to the "enlightening" Vaihinger's theory of fiction, this time in the preface to the second edition of "Problems of Capital Theory of Public Law", but not before revealing to readers the debt he owed to Cohen (Kelsen 2007a, 16). These writings (from 1919 and 1923) demonstrate Kelsen's knowledge of the work made by Vaihinger, having he, however, preferred to be based on Cohen to structure the basic norm. Thus, the path to the conceptual evolution of the Grundnorm is not from hypothesis to fiction, but from fiction to hypothesis, as Kelsen wrote to Treves (Treves 1987, 335). It's precisely this hypothetical character of the basic norm - as it is something not demonstrated, but presupposed - that constitutes the element that serves to contrast it with natural law, which is the central task of Kelsen's legal theory. The transcendental assumptions required for the cognition of any object cannot be taken as mere acceptance of fictional entities (Hammer 2007, 186).
As I will argue in the next subsection, these are necessary conditions for making such objects scientifically thinkable, and therefore it seems untenable to define the basic norm as a fiction. This is indeed
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the only interpretation which is consistent with Kelsen's firm resistance to revise the second edition of the "Pure Theory of Law". This attitude is not due to the fact that he was teaching an old and finished doctrine, but because of the author's conviction that his contribution had been exhausted with the final version of the "Pure Theory of Law", published exactly 50 years ago, in 1960, when the "skeptical phase" of Kelsen's thought began, according to the timeline proposed by Paulson.[3] To note Kelsen's disposition not to modify his major work, we can check the preface of the "Pure Theory of Law". The development of the book ended right there to Kelsen, leaving to his disciples the task to continue his work. And as we know, in this second and final edition, the basic norm is described as a transcendental-logical hypothesis.
Since the basic norm cannot be self-evident (Kelsen 1997, 218), Kelsen conceives it as a logical-transcendental hypothesis in the sense of Kant's critical philosophy, as reinterpreted by Hermann Cohen (1842-1918), who is one of the founders and an important member of the School of Marburg, who had among his disciples proeminent jurists such as, for instance, Ernst Cassirer. Kelsen believes that all neo-Kantian attempts to establish a specifically legal cognition have failed. Only his major work, "Pure Theory of Law", was successful in this task (Hammer 2007, 182-183), which is why Kelsen is not a mere imitator of the great thinkers of Marburg and Heidelberg.[4] Moreover, it seems important to emphasize that Kelsen only takes up Cohen's epistemological reflection, since his practical philosophy - as, indeed, that of Kelsen himself - was trapped in metaphysics (Edel 2007, 204). Hence, the merits and originality of Kelsen to propose an application for the critical principles of Kant and Cohen to a subject which, until then, only had been thought in non-scientific terms, even by these two philosophers. Acknowledging his debt in 1923 to Cohen - especially to his "Ethics of Pure Will" -, Kelsen admits having learned from him that the epistemological orientation creates its own object, generating it logically from a certain origin (Ursprung), exactly like the innovative proposal of the basic norm (Kelsen 2007a, 15).[5] However, although Kelsen's theory presents great originality, it is undeniable its connection with the doctrine of Cohen, which we began to expose in a synthetic way.
The theory of the hypothesis created by Cohen and subsequently used by Kelsen for the development of the Grundnorm can be seen as an attempt to overcome the psychologism found in Kant's "Critique of Pure Reason". According to Cohen, philosophy boils down to epistemology, because its object is not the material world, but the cognition of this world (Edel 2007, 204). Therefore, Cohen believes that all scientific knowledge should be based in epistemological legitimization. This thesis was fully accepted by Kelsen since 1912, when he entertains the first contacts with the system developed by Cohen (Kelsen 2007a, 15).
According to Cohen, to make all knowledge depend on the pure intuitions of space and time and to found the dichotomy that separates the unknowable thing (noumenon) and the one perceived by the subject (phenomenon), Kant would have denied the possibility of any objective cognition of reality. It is against these conclusions that Cohen's theories are developed. Beyond the intuitions of space, time and the whole cognitive apparatus described by Kant - that would be objects of psychology and neuroscience, never philosophy -, Cohen yearns to demonstrate how it is possible to validate objectively scientific judgments (Edel 2007, 205-206). For that, he uses the concept of platonic hypothesis, which has nothing to do with the modern notion according to which a hypothesis would be a kind of truth (prior and provisional) to be tested and validated by experimentation in the empiric field. For Plato and Cohen, scientific hypotheses are immune to empirical testing, reflecting, as definitions and the mathematical axioms do, certain assumptions necessary for any subsequent judgment.
Nonetheless, unlike Plato, Cohen argues that such hypotheses do not have a metaphysical nature, since they are always subject to changes. They are not, therefore unconditional assumptions, but rather results of the thought that serves as the foundation for scientific cognition (Edel 2007, 208). Characteristically, when questioned about what establishes or turns the highest scientific principle possible, Cohen says: nothing but itself. By definition, there can be no higher authority than the highest principle (Edel 2007, 215). Kelsen uses the same argument to explain the nature of the basic norm, a theme that to which I will return later in this essay, when I explain my proposal to understand the Grundnorm as a scientific postulate.
In conceiving the basic norm as a logical-transcendental hypothesis, Kelsen attacks both natural law and uncritical legal positivism (Leser 1982, 100), since the transcendental cognition doesn't deal with objects but with the way we know them. To understand Kel-
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sen's basic norm as a hypothesis means limiting its field of epistemological validity. On the other hand, seeing it as transcendental - not transcendent, just like the fundamental norms of the natural law - means that the Grundnorm is intended to be used a priori, i.e., it is entirely independent from experience, as taught by Kant. Thus, unlike more primitive positivist positions - e.g., those of the School of Exegesis -, in assuming that the Kelsen's basic norm is free from the burden of establishing the content of particular rules to be studied by legal science (Luf 2007, 224), since it needs merely to demonstrate how subjective senses of the ought can be understood as objective commandments (legal norms), which only seems possible if we assume the anti-metaphysical closure represented by the Grundnorm.
The similarities between Kant's proposal in the field of natural sciences and Kelsen's in the legal sphere are well known.[6] Let us recall a few of them. Just as Kant's categories of sensibility (time and space) and of understanding (quantity, quality, relation and modality) are pure forms, i.e., concepts without any content, that do not establish anything in material terms to natural laws, but make them possible, i.e., thinkable, the dynamic basic norm, characteristic of contemporary legal systems, is also empty with regards to content (Kelsen 1997, 421) and does not determine any specific legal duty, unlike the static basic norms which guide the natural legal orders.[7] By embracing certain central value that will be used to deduce all other norms of the legal system, the basic norm (in its static perspective) makes the legal order unmovable and barren, unable to modify itself beyond the major value, something that does not happen to the contemporary legal systems with their open structure of indeterminacy. This is only feasible because the system's basic norm is empty, allowing the norms dependent of it bear any content (Kelsen 1986, 70). The ought included in the formula of the basic norm - e.g., "the commands of the first historical generally effective constitution must be complied" - represents only a logical connective, without any particular deontic content, reflecting, in the words of Luf, a mechanical-causal model of cognition (Luf 2007, 233). We could say it in a better way: a mechanical-normative model of cognition.
Kelsen's basic norm restrains the legal cognition to juridical materials that are given by experience, being useless for the cognition of absolutes, such as the notions of justice, which are common in the natural law thinkers (Hammer 2007, 184). The Grundnorm makes the epistemological creation of law possible, because, by limiting its object, it ends up offering a specific form of existence through the reference to a founding ought (Sollen). Similarly, Kant's categories of sensitivity and understanding turned impossible the access to an unconditional is (Sein), i.e., the thing in itself (noumenon). Actually, they create the knowledge objects for the sciences of nature, no longer based in themselves, but rather in the look of the viewer. Behold, in simpler terms, the "Copernican Revolution" of Kant, which teaches us to consider not the object itself (noumenon), unknowable, but the object as perceived by the sensitivity and rationalized by the understanding, i.e., the phenomenon.
Based on this logic, we can refute the criticisms (v.g. Celano 2000, 187) according to which, at the end of the day, Kelsen's basic norm would have an ideological nature because it is based on consent -whether informed or not - of persons under specific legal authority. Thus, criticisms can depart from a very famous example offered by Kelsen when referring to natural law: the ultimate reason for a Christian to love his enemies can be found only in the personal authority of Christ, the founder of Christian morality (Kelsen 1986, 326). However, it doesn't seem difficult to understand the radical distinction which permeates both normative orders: the Christian normative order is of static character because it was based on a value - Christian love -, from which are created other norms through deduction; while the legal order is based on an empty form (able to substantiate any content). Therefore, the dynamic legal system does not necessarily need the consent of the people submitted to it. It is enough to present general effectiveness, as we shall see later.
According to Roy's interpretation, the Christian normative system (as described above) is not a dynamic order because it does not have an empty basic norm that defines competences, while determines something like: "the norms set fourth by Jesus must be obeyed". Such a norm doesn't bear any legal content, serving only to enable the interpretation of some subjective meanings of ought as being objective (Roy 1997, 12-13). This reading is entirely consistent with Kelsen's doctrine, for whom the natural law fallacy - to derive norms (natural law commandments) from facts (nature) - can be mastered only when we presuppose an empty basic norm that defines normative competences (Kelsen 1998b). This is the essential concept of a basic norm, i.e., a norm in which the content matches the form, which is just a fancy way of saying that it has no content (Edel 2007, 219). Indeed, the Grundnorm shows itself, primarily, as a norm that defines competences, capable of connecting the idea of ought (a specifically legal logical structure) to the notion of lawmaker authority (Edel 2007, 218). Already in 1934, in the first edition of the "Pure Theory of Law", this was the Kelsen's understanding: "The basic norm confers on the act
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of the first legislator - and thus on all other acts of the legal system resting on this first act - the sense of 'ought' (Sollen), that specific sense in which legal condition is linked with legal consequence in the [..] legal norm"( Kelsen 1992, 58).
Let us analyze another important similarity between Kant and Kelsen: just like the former wondered how an interpretation of the natural sciences could be possible without the metaphysics, Kelsen wondered how law could be thought without the metalegal authorities (Kelsen 1997, 223). To answer this question, Kelsen is led to abandon his purely descriptive and creative claims in order to create - epistemologically speaking (Roy 1997, 6) - an assumed normative instance that is unfolded as a logical-transcendental hypothesis. Thus, it is a presupposed norm - it cannot be established, since it would depend on an act of power which, in turn, would have to be redirected to a superior act of power and, therefore, infinitely - by the legal thought, necessary if someone wants to give scientific interpretations to the study object of Legal Science. No doubt, however, that this structure gives rise to a central tension in the doctrine of Kelsen, since a purely descriptive norm - "scientific" - as the basic norm ends up being called to give validity to real norms, i.e., prescriptive (Roy 1997, 14). To overcome this tension only seems possible when we recognize two conditions for the assumption of the basic norm, which is not arbitrarily imagined as alleged by some critics to the Pure Theory of Law.
The first condition, which is of epistemological nature, determines that the basic norm is a hypothesis, that is, it behaves according to a non-axiomatic logic, very common to Kant's hypothetical judgments.[8] Thus, if - and only if - we intend to build scientific interpretations of the law, we must assume a basic norm that avoids the regressum ad infinitum and the appeal to meta-legal authorities. As we know, a hypothesis is embodied in a proposition that is accepted regardless of whether it is true or false. Instead, it is about grounding a principle from which we can deduce a certain set of consequences. More importantly: the basic norm, understood in hypothetical terms, can be (although it does not have to be) assumed (Kelsen 1986, 328). Concerning to this epistemological condition, the act of assuming the basic norm only has a real meaning if one intends to describe the law in a scientific way,[9] disregarding the existence of transcendent authority, such as God or the very nature of things, which are material basis of validity according to the adepts of the natural law.
From this perspective, it does not seem correct to define the basic norm as an improvable "article of faith" that only allows a pedigree test capable of giving legal character - that is, of an objective ought - to other norms of the system through chains of assignment of competence, as proposed by Honoré (Honoré 2007, 101). According to this author, the issue of Kelsen's basic norm would turn on a credo quia incredibile (Honoré 2007, 110). In fact, nothing could be more false than this. There is no absolute or metaphysical necessity that determines the assumption of the basic norm. If we want to describe the law in a scientific way, surely we must presuppose it. In other circumstances this is not necessary, as in the case of an anarchist who sees legal norm as mere formalizations of power relations. He is not obliged to assume any basic norm because it represents only a possible, rather than a necessary, scheme of interpretation (Kelsen 1942, 329).
We should also add that the discussion about the basic norm is meaningless if one is trying to prove that it is an assumption. From the logical point of view, something cannot be "an assumption", since the terms "established" and "assumption" refer to the nature of the norms, i.e., to the way that they are showed, reflecting one quality and not the being - or the essence, in scholastic language - of a particular entity. However, with regards to the basic norm, its being is revealed as a logical-transcendental hypothesis. According to Raz, this means that the basic norm is not created as the other system norms, but assumed. Moreover, it is not an arbitrary product of positivist imagination. The basic norm is not invented but discovered (Honoré 2007, 93). It does not come from other norms or from the recognition of the duty to fulfil the established law. It is not possible to ask ourselves when, by whom and how the basic norm was "created". These categories simply do not apply to the Grundnorm (Raz 2007, 50-51).
Thus, while characterizing the basic norm as an assumed hypothesis, rather than a established norm, Kelsen easily got rid of the criticisms of Amselek and Niort, for whom the basic norm is merely a tautology (Amselek 1978; 1981; Niort 1993). These authors question how the basic norm can be presupposed to validate the legal order if we can only give legal status to one or another normative order after the assumption of a basic norm. This would mean that we obey the law because it is law (Roy 1997, 12) or, as Niort would say, we consider the legal norms mandatory because we assume that we should generally obey the law (Niort 1993, 179). This difficulty is overcome by the assumed character of the basic norm, which, before giving validity to the legal system - before, in Raz's language, "confer-
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ring power-law" (Raz 2007, 51) -, opens the doors for the exercise of thought. The presupposed basic norm does not have the same ontological status as others norms of the system, which are established. For indicating the possibility and the logical validity of the legal system, the basic norm is transpositive and transcendental, but not metaphysical or transcendental (Goyard-Fabre 1991, 123). Thus, the logical-cognitive operation always begins at the possibility of concretely thinking the basic norm, which brings us to the second condition of assumption, that is, indeed, of factual nature. It can be summarized in the overall effectiveness of the legal system, which somehow connects Kelsen's deductivism to the necessary minimum of empiricism for any scientific thought system, as expressed by Arendt while commenting on the sui generis theory of knowledge of the poet and philosopher Hermann Broch. His words seem to have been written to explain the necessity of overall effectiveness in Kelsen's legal order, as well as its nature of a scientific postulate, a topic that we address below: [...] there is no correspondence to an absolutely deductive system. Rather, the basis of any formal system is always empirical. This means that the whole system rests on more a transcendent foundation, which is necessary to postulate as absolute, otherwise, the system could not even begin its various deductive chains (Arendt 2008, 156).
The jurist can assume the basic norm of a certain legal order only when he is before a generally effective coercive system. The need for overall effectiveness for the assumption of the basic norm has led many critics, such as Mario Lausanne, to argue that Kelsen had disrespected the division between the world of "is" and the world of "ought", since, after all, the norm which gives validity to every legal system would depend on a fact of the "is" order.[10] Similarly, Bobbio identifies the basic norm as the founding act of the legal order, so that the legality would be founded through the imposition of the coercive power. None of these alternatives is consistent with Kelsen's logical normativism. If it is true that the gap between facticity and normativity seems to be insurmountable, it is also true that the bridge capable of allowing such crossing is based on the basic norm (Honoré 2007, 102). The legal system consists of a unitary and systematic aggregate of norms, not a concatenation of events that, in the end, rest over power (Luf 2007, 222). All the theories that seek to ground of validity of law in its effectiveness are devoid of scientific value, given that these doctrines disregard the basic standard according to which a norm can only be based on another norm and a fact on another fact. This means, in Kantian language, that an "ought" can only be established by another "ought" in the same way that an "is" emerges from another "is". Otherwise, we would have to accept as valid the "naturalistic fallacy", namely the belief that the value (norm/"ought") arises from reality (fact/"is"), which is absolutely unacceptable to a materialistic, anti-metaphysic and empirical theory, such as Kelsen's normativism (Conte 2007; Raz 2007, 49-51). The legal norm and the legal order are valid if they are effective, but not because of their effectiveness. Effectiveness is a factual condition rather than the system's fundament. According to Goyard-Fabre, the basic norm is equivalent to a canon for the exercise of reason that, as a transcendental and a priori requirement, providing the pure basis to the norms (Goyard-Fabre 1994, 231). Hence, the function of the basic norm is loomed, which is to provide a specifically legal intelligibility to the norms of a certain positive legal order. However, this is possible only when the overall effectiveness of the first Constitution exists, which represents, in Kelsen's theory, the material fact that creates the system to be described by the science of law (Hammer 2007, 192).
A word should be said about this subject. Honoré highlights two problems concerning the validation of the first historical Constitution by the basic norm. However, both seem inconsistent to us. The first refers to the fact that the Constitutions of several countries were violently and arbitrarily established by persons or groups who had no authority or legitimacy to do so. Indeed, the founding constitutions of several States emerged in the context of contemporary usurpations, conquests and coups d'etat and therefore hardly to be seen legitimate today (Honoré 2007, 102). The Pure Theory of Law is absolutely formal. The assumption of the basic norm needs only the overall effectiveness of the first historical constitution. The means used by the power to impose itself are meaningless to the legal science. In Kelsen's words: "Coercion is to be applied under certain conditions and in a certain way, namely, as determined by the framers of the first constitution or by the authorities to whom they have delegated appropriate powers" (Kelsen 1992, 57). Such an interpretation can't be nice, but it seems realistic. The central aspect of Kelsen's theory is to describe the law as it really is, not as it should be. And it is, wether we like it or not, organized and monopolized violence. It is known that the organization of the power can be democratic or autocratic. To analyze the conditions that lead to one or other of these formations is a task of political science and sociology, but not of the science of law, which deals with describing the established, stable and formalized power as a legal norm, but never its social genesis.
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Honoré's second criticism is based on the finding that there is no reason to consider as valid the chain of authorizations and power delegations that connects the founders of a particular legal order to the current law-makers. In order to justify this idea, Honoré believes that it is necessary to assume as undisputable the transmission of power through historical competence chains, which is nonsensical to him (Honoré 2007, 103). Although such a transmission would be morally questionable, it apparently matches the reality, which has no obligation of being ethical. People meet prescriptive provisions made by competent authorities because they presuppose valid prior authorizations. When one cannot assume such authorizations, it means that one is facing a revolution (a hypothesis specifically addressed by Kelsen). Revolutions occur because certain legal order vanishes, giving place to a new order with a new basic norm. In a few words, the transfer of power ownership is always presupposed to be valid, unless when the overall effectiveness ceases to exist before a new set of norms. This, like the former, also presupposes another basic norm validating new political-juridical power transmissions.
The basic norm can be characterized as an rule of closure,[11] whose aim is to prevent the endless recurrence of questions about the basis of the validity of a law. Therefore, it resembles the scientific systems postulates that can not be deduced, but from which others can be deduced (Bobbio 1999, 62). This seems to be the best definition of the basic norm's nature. Indeed, that is referred by Raz when discussing about the two axioms of Kelsen's theory, which does not need to be proven (Raz 2007, 48) because of their self-evident nature, just like scientific postulates. They both concern the basic norm and determine that: 1) given two legal norms, if one authorizes, directly or indirectly, the other, they both must necessarily belong to the same legal system;[12] 2) all the legal norms of a particular legal system are authorized, directly or indirectly, by one single basic norm.
Although this interpretation isn't explicit in Kelsen's works, it can be sustained based on some indirect evidences. In 1923, he commended Alfred Verdross's doctrine, who understood that the basic norm is a kind of logical Constitution, which can be seen as - similarly to what occurs with the hypothesis of natural sciences -, an hypothesis concerning the legal-positive material (Kelsen 2007a, 13). On another occasion, Kelsen explained that the basic norm is a characterizing element of the initial stage in the process of creating a certain legal system: "It is the starting point of a norm-creating process" (Kelsen 1961, 114). Our interpretation is designed to give epistemological meaning - beyond the ontological - to this important sentence. By understanding the basic norm as a postulate of the science of law, we are led to reconsider his course of action. Indeed, the basic norm should not be conceived as the regressive end of the staggered structure,[13] i.e., the culmination of the system of positive law, what would make inevitable the reference to the world of "is", according to Losano's critique. It is, actually, the logical beginning of the system,[14] capable of bringing its elements - the legal norms - to a single source of non-positive validity, which, unlikely the natural law, is juridical.
Therefore, the expression "basic norm" seems right to us, since it makes easier the understanding of the basic norm's founder role in the legal order, epistemologically speaking. The basic norm is not an end, but a beginning, despite the fact that to understand its nature we have to observe it through a posterior point of view - in the historical sense, not epistemological - than the emergence of generally effective legal system founded by it, a paradox which, as we saw, led Amselek and Niort to highlight the allegedly tautological nature of the Grundnorm. However, we must once again remind of Cohen, whose influence led Kelsen to develop the basic rule differently than an empirical hypothesis capable of being tested (Edel 2007, 217). It is rather a condition of the system's rationality, which safeguards the Grundnorm before the accusation of being tautological. Indeed, the basic norm epistemologically founded the positive legal system, but it is not part of it as an element - it is not even positive -, but rather as a condition for the system's cognition.
Using a metaphor by Honoré, we are able to hold that the basic norm is something like the Big-Bang. Similarly to the first validated historical Constitution, the Big-Bang is defined as a singularity assumed by cosmologists. They both - the Big-Bang and the first Constitution - have existed at a remote time from the past, making it impossible to submit them to causal (Big-Bang) or normative (basic norm) explanations (Honoré 2007, 101-102). Nevertheless, unlike Honoré, we should extend the metaphor to unveil the true nature of the basic norm as a scientific postulate. While it is possible to say that the Big-Bang is an event designed to understand how the universe works, the Grundnorm performs a similar function for its particular universe, namely the positive legal order. So, as you cannot explain the Big-Bang based on the laws of physics - because they were born with the Big-Bang -, the basic norm is not subject to the ontic and gnoseological parameters that describe the positive legal order. In fact, the Grundnorm is the one that creates such parameters. Since the Middle Age
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we know that creator and creation are not located in the same ontological level.
Designed as a scientific postulate, the basic norm can successfully perform its basic functions, often obscured by the intense attack that is addressed to it: to avoid the infinite regression in the search for the validity of law, allowing the system's closure when faced by external fundaments - God's will, the human abstract reason, power, etc. - which are commonly used to support normative legal orders, referring them to non-legal spheres of validity and, therefore, non-autonomous and ideologically compromised.
AMSELEK, Paul. Kelsen et les contradictions du positivisme juridique. Revue internationale de philosophie, pp. 460-473, 1981
AMSELEK, Paul. Réflexion critique autour de la conception kelsénienne de l'ordre juridique. In: Revue du droit public et de la science politique en France et à l'étranger, t. 9, n. 6, pp. 5-19, 1978
ARENDT, Hannah. Homens em tempos sombrios. Trad. Denise Bottmann. Sao Paulo: Companhia das Letras, 2008.
AUSTIN, John. The province of jurisprudence determined. New Jersey: The Lawbook Exchange, 2003
BÉGIN, Luc. Le raisonnable en éthique et en droit. In: Cahiers de philosophie politique et juridique de l'Université de Caen, n. 18, pp. 93-105, 1986
BOBBIO, Norberto. O positivismo jurídico: liçoes de filosofia do direito. Trad. Márcio Pugliesi et all. Sao Paulo: Ícone, 1999
BOBBIO, Norberto. Teoria geral do direito. Trad. Denise Agostinetti. Sao Paulo: Martins Fontes, 2007
BOBBIO, Norberto; ZOLO, Danilo. Hans Kelsen, the theory of law and the international legal system: a talk. In: European journal of international law, v. 9, n. 2, 1998, pp. 355-367. http://www.ejil.org/journal/Vol9/No2/index.html.
CARRINO, Agostino. Reflections on legal science, law, and power. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 507-522, 2007.
CELANO, Bruno. Kelsen's concept of the authority of law. In: Law and philosophy, v. 19, n. 2, pp. 173-179, 2000
CONTE, Amedeo G. Hans Kelsen's deontics. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 331-341, 2007
DREIER, Ralf. Bemerkungen zur Theorie der Grundnorm. In: Die Reine Rechtslehre in wissenschaftlicher Diskussion. Vienna: Manz, pp. 38-46, 1982
EDEL, Geert. The hypothesis of the basic norm: Hans Kelsen and Hermann Cohen. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 195-219, 2007
GOYARD-FABRE, Simone. De l'idée de norme à la science des normes: Kant et Kelsen. In: AMSELEK, Paul (org.). Théorie du droit et science. Paris: Presses Universitaires de France, pp. 211-232, 1994
GOYARD-FABRE, Simone. L'ordre juridique et la question de son fondement dans la philosophie du droit contemporaine en France. In: LEGEAIS, R.; PLANTY-BONJOUR, G. (orgs.). L'évolution de la philosophie du droit en Allemagne et en France depuis la fin de la seconde guerre mondiale. Paris: Presses Universitaires de France, pp. 95-126, 1991
GOYARD-FABRE, Simone. Os fundamentos da ordem jurídica. Trad. Claudia Berliner. Sao Paulo: Martins Fontes, 2002
HAMMER, Stefan. A neo-kantian theory of legal knowledge in Kelsen's pure theory of law? In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). New York: Oxford/Clarendon Press, pp. 177-194, 2007
HÖFFE, Otfried. La théorie du droit de Kelsen est-elle positiviste? In: Cahiers de philosophie politique et juridique de l'université de Caen, n. 9, pp. 43-63, 1986
HONORÉ, Tony. The basic norm of society. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 89-112, 2007
KELSEN, Hans. Foreword to the second printing of Main problems in the theory of public law. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 3-22, 2007a.
KELSEN, Hans. General theory of law and state. Trad. Anders Wedberg. New York: Russell & Russel, 1961
KELSEN, Hans. Introduction to the problems of legal theory. Trad. Bonnie Litschewski Paulson and Stanley L. Paulson. Oxford: Clarendon Press, 1992
KELSEN, Hans. O problema da justiça. Trad. Joao Baptista Machado. Sao Paulo: Martins Fontes, 1998a
KELSEN, Hans. Teoria geral das normas. Trad. José Florentino Duarte. Porto Alegre: Sergio Antonio Fabris, 1986
KELSEN, Hans. Teoria geral do direito e do estado. Trad. Luís Carlos Borges. Sao Paulo: Martins Fontes, 2000
KELSEN, Hans. Teoria pura do direito. Trad. Joao Baptista Machado. Sao Paulo: Martins Fontes, 1997
KELSEN, Hans. The pure theory of law, "labandism", and neo-kantianism. A letter to Renato Treves. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 169-175, 2007b
KELSEN, Hans. Value judgments in the science of law. In: Journal of social philosophy and jurisprudence, n. 7, pp. 312333, 1942
KELSEN, Hans. Zur Theorie der juristischen Fiktionen. In: KLECATSKY, Hans (org.). Die Wiener rechtstheoretische Schule: Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross. Vol. II. Vienna: Europa Verlag, pp. 1215-1241, 1968
KELSEN, Hans.O que é justiça? A justiça, o direito e a política no espelho da ciência. Trad. Luís Carlos Borges. Sao Paulo: Martins Fontes, 1998b
KELSEN, Hans; TREVES, Renato. Formalismo giuridico e realtà sociale. Napoli: Edizioni Scientifiche Italiane, 1992
KERVÉGAN, Jean-François. Raison philosophique et positivisme juridique: l'exemple allemand. In: Cahier de philosophie politique et juridique de l'université de Caen, n. 13, pp. 47-68, 1988
LESER, Norbert. Die Reine Rechtslehre in Widerstreit der philosophischen Ideen. In: Die Reine Rechtslehre in wissenschaftlicher Diskussion. Vienna: Manz, pp. 97-104, 1982
LUF, Gerhard. On the transcendental import of Kelsen's basic norm. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/ Clarendon Press, pp. 221-234, 2007
MATOS, Andityas Soares de Moura Costa. Filosofia do direito e justiça na obra de Hans Kelsen. Belo Horizonte: Del Rey, 2006
MATOS, Andityas Soares de Moura Costa. Positivismo jurídico e autoritarismo político: a falácia da reductio ad Hitlerum. In: DIMOULIS, Dimitri; DUARTE, Écio Oto (orgs.). Teoria do direitoneoconstitucional: superaçao ou reconstruçao do positivismo jurídico? Sao Paulo: Método, pp. 103-127, 2008
NIORT, Jean-François. Formes et limites du positivisme juridique. In: Revue de la recherche juridique: droit prospectif, n. 18, Presses Universitaires d'Aix-Marseille, pp. 157-192, 1993
PAULSON, Stanley L. La normativité dans la théorie pure du droit peut-elle se prévaloir d'arguments transcend-antaux?". In: Droit et société, n. 7, pp. 349-369, 1987
- 146/147 -
PAULSON, Stanley L. Introduction. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms: critical perspectives on kelsenian themes. Trads. Bonnie Litschewski, Stanley L. Paulson and Michael Sherberg. New York: Oxford/Clarendon Press, pp. xxiii-liii, 2007.
PAULSON, Stanley L. Kelsen and the Marburg school: reconstructive and historical perspectives. In: KRAWIETZ, Werner (org.). Prescriptive formality and normative rationality in modern legal systems: Festschrift for Robert Summers. Berlin: Duncker & Humblot, pp. 481-494, 1994
RAZ, Joseph. Kelsen's theory of the basic norm. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 47-67, 2007
RENAUT, Alain. Kelsen et le probléme de l'autonomie du droit. In: Cahiers de philosophie politique et juridique de l'université de Caen, n. 9, pp. 7-21, 1986
ROY, Louis. Pour une interprétation large de la norme fondamentale-transcendantale de Hans Kelsen. In: Cahiers d'épistémologie, n. 238, 1997
SOSOË, Lucas. La distinction de l'être et du devoir-être dans la théorie pure du droit. In: Cahier de philosophie politique et juridique de l'Université de Caen, n. 9, pp. 65-81, 1986
TREVES, Renato. Un inédit de Kelsen concernant ses sources kantiennes. Trad. Michel Troper. In: Droit e societé, n. 7, pp. 327-335, 1987
TROPER, Michel, 1978. La pyramide est toujours debout! Réponse à Paul Amselek. In: Revue du droit public et de la science politique en France et à l'étranger, t. 94, n. 6, pp. 89-103, 1978
VAIHINGER, Hans. The philosophy of "as if": a system of the theorethical, pratical, and religious fictions of mankind. Trad. C. K. Ogden. London: Routledge and Kegan Paul, 2002
WRIGHT, Georg Henrik von. Is and ought. In: PAULSON, Stanley L.; PAULSON, Bonnie Litschewski (orgs.). Normativity and norms. New York: Oxford/Clarendon Press, pp. 365-382, 2007 ■
NOTES
* Ms.C. and Ph.D. in Law Philosophy by the Minas Gerais Federal University (Belo Horizonte, Brazil). Law Philosophy Professor at Minas Gerais Federal University (Belo Horizonte, Brazil) and FEAD's Law Graduation Course (Belo Horizonte, Brazil). Director of Brazilian Journal of Political Studies (ISSN 0034-7191)
[1] "Having determined the province of jurisprudence, I shall distinguish general jurisprudence, or the philosophy of positive law, from what may be styled particular jurisprudence, or the science of particular law; that is to say, the science of any such system of positive law as now actually obtains, or once actually obtained, in a specifically determined nation, or specifically determined nations" (Austin 2003, iii).
[2] To read the text of the letter in French, the first published since it was written in 1933, see Treves 1987, 333-335. The document was translated into English and published in Kelsen 2007b, 169-175. The original in German and a Italian translation (by Agostino Carrino) are available in Kelsen; Treves 1992, 5558; 51-54, respectively. For an analysis of the letter, Matos 2006, 66-68. The knowledge and study of the missive is important to avoid anachronistic interpretations according to which the final characterization of Kelsen's basic norm would be a legal fiction, mistake committed by José Florentino Duarte in his introduction to Kelsen 1986, VIII - IX. Paulson, who knows the letter very well, prefers to credit the skeptical phase of Kelsen the supposed change of direction with regard to the nature of the basic norm. See Kelsen 2007b, 174, n. 15. The topic is discussed at leisure in subsection 3.1. of this paper.
[3] According to Paulson, Kelsen's work can be divided into three phases. The first, called "critical constructivism" would occur between 1911 and 1921, covering a period of transition from 1913 to 1921. The second phase - called "classical" - would include most of the work of Kelsen, covering the years 1921 to 1960 and showing two distinct periods: the neo-Kantian (1921 to 1935) and the hybrid (1935 to 1960), which combined analytical elements to the neo-Kantian views already settled. Finally, the third and final phase would be the "skeptical", that would go from 1960 until the death of Kelsen in 1973 (Paulson 2007, xxvii).
[4] Contrarily to the tradition, Paulson affirms that Kelsen's neo-kantian legacy must be searched in Heidelberg, not in the Marburg School, which is guided by Cohen. See Paulson 1994, 485-494.
[5] So, as an object of the legal cognition, the State can only be conceived in legal terms, because juridically knowing something means to know as Law. See Kelsen 2007a, 15-16.
[6] To a analisys of the matter, see Goyard-Fabre 2002, 345; Matos 2006, 31-37; Roy 1997
[7] A debate about the differences between the basic norms that are present in the static legal systems (natural law) and the dynamic ones (legal positivists) can be found in the essay "The doctrine of natural law and legal positivism" in Kelsen 2000, 557-580.
[8] The proposition that describes the basic norm is a hypothetical judgment capable of, when assumed the Grundnorm - "if" it's assumed, because it is a hypothesis -, enabling the interpretation of certain norms as legal. However, I must register the position of Celano 2000, 184, who believes that the background question - is the basic norm an expression of the hypothetical or the categorical judgments? - is obscure and unstable, what makes this author believe that the basic norm embodies a categorical judgment, because the legal cognition sees it as something unspoken.
[9] Hammer asserts that the assumption of Kelsen's basic norm isn't a simple subjective decision about wanting or not seeing the law as a science. Actually, it's about an epistemo-logical necessity for any strictly legal interpretation of normative materials. See Hammer 2007, 186-188.
[10] See Losano's introductory study in Kelsen 1998a.
[11] The expression "closure norm" as synonym to the basic norm was coined by Bobbio in a interview given by Danilo Zolo. See Bobbio; Zolo, 1998.
[12] Raz rightly criticizes the first of these propositions in Raz 2007, 51-53. To do so, he resorts to an internationalist argument originally made by H. L. A. Hart.
[13] As wrongly suggested by Edel 2007, 216 - who believed that the basic norm is a reflection of a "logical endpoint" - and Roy 1997, 11.
[14] Our interpretation is approved by Bobbio: "Kelsen's closure of the legal order is a sort of reference back from final causes to the first cause, from empirical determinations to the causa sui. Thus in an essentially non-metaphysical thinker like Kelsen the 'closure' of a system through the Grundnorm is only, so to speak, a closure of convenience. It is a little like the idea of the absolute sovereignty of the nation-state. The idea of sovereignty as 'power of powers' is a closure of convenience, no different from the Grundnorm conceived of as a 'norm of norms'" (Bobbio 1998, 2-3).
Lábjegyzetek:
[1] The author is Professor at Minas Gerais Federal University, Belo Horizonte, Brazil.
Visszaugrás
