On the Non-Equivalence of Norms and Norm-Formulations: Hart Versus Kelsen, and Kelsen Versus Kelsen

Abstract

In the final main section of his essay “Kelsen Visited,” H.L.A. Hart grappled with some of Hans Kelsen’s reflections on deontic conflicts and logical contradictions.  Hart’s discussion was not entirely free of missteps, but most of his criticisms of Kelsen’s lines of thought are sound.  As for Kelsen, his frequently deep confusion on the matters of deontic conflicts and logical contradictions was accompanied by some deep insights.  Although the present paper is philosophical rather than a contribution to intellectual history, it will engage to some degree with the ruminations of each of these great legal philosophers on this matter.

Keywords: deontic conflicts, logical contradictions, unenforceable legal duties, H.L.A. Hart, Hans Kelsen, conflicting duties, claim-rights, duties, legal powers