Kelsen and Normativity Revisited
(translated into Spanish for) Carlos Bernal & Marcelo Porciuncula (eds.), Kelsen Para Erizos: Ensays en Honor a Stanley L. Paulson [Festschrift for Stanley L. Paulson] (University Externado de Columbia, 2017)
25 Pages Posted: 2 Jul 2013 Last revised: 18 Sep 2017
Date Written: June 28, 2013
Central to Hans Kelsen’s work (and the work of many other legal theorists of the past century ) is the idea that law is a normative system, and that any theory about the nature of law must focus on its normativity. There are familiar questions connected with explaining legal normativity: e.g., What is the connection between legal normativity and other normative systems, in particular, morality? And there are methodological questions: when theorists claim that we need to (and that they will) “explain the normativity of law,” what is it that is being explained? This paper focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and H. L. A. Hart and later commentators on their theories.
In Part I, I offer a view regarding the nature of law and legal normativity that I believe could reasonably be read off of some of Kelsen’s work. The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian system, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality.
Part II turns to Hart’s theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach will raise questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. I show how, instead, a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may in fact work better than current conventional (morally-focused) understandings.
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By Brian Bix