Stone _ Basic Norm

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Citation: 26 Mod. L. Rev. 34 1963

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MYSTERY AND MYSTIQUE IN THEBASIC NORM

ITHE problem of the basic norm of legal orders was raised more thanhalf a century ago, in the first edition of Sir John Salmond'sJurisprudence (1902). 1 " There must be found in every legalsystem," said this seminal thinker, " certain ultimate principlesfrom which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, theremust be in existence some law which establishes them and givesthem their authority." Salmond added that the English rule thatthe Acts of Parliament have the force of law " is legally ultimate;its source is historical only, not legal." When Hans Kelsen firstdirectly mentioned the problem in his Das Problem der Souve-rdnittit und die Theorie des V5lkerrechts (1920) this did not rescueSalmond's pioneering thought from oblivion, for Kelsen wasunaware of his predecessor.'

Kelsen's initial statement of the idea of the basic norm is thatthe justification of a sentence such as " The murderer ought to bepunished by imprisonment," cannot be by recourse to an is-factum, but involves recourse to a norm, an ought, whichultimately leads back the justification to what Kelsen called the" origin-norm" (Ursprungsnorm) or " constitution in the legal-logical sense " (Verfassung im rechtslogischen Sinne). " Thisorigin-norm," he said, " is the hypothesis of every positive legalsystem, of every concrete legal or state order." 3 Despite Kelsen'sI See Salmond, op . cit., p. 110. In the Preface to his Hauptprobleme derStaatsrechtslehre (2nd ed., 1923), p. xv, Kelsen claims to have already fore-shadowed his position in 1913 in his "Zur Lehre yom dffentlichen Rechts-geschaft " (1913) 31 Archiy. des 6ff. Rechts 53, 190, as implicit in the distinc-tion between " he being " and " the becoming " of a legal norm. He alsothere claims to have " resented clearly " the concept of " he basic norm "itself in his " Reichsgesetz und Landesgesetz nach bsterreichischer Verias-sung," 32 Arch. des 5ff.echts 202 at p. 216 et seq. "Of course, withoutthe distinction developed later between the basic norm as the constitution inthe legal-logical sense and constitution in the positive law sense." Kelsenthere also acknowledged A. Verdross' account in 1916 of the basic norm as ahypothesis for comprehending the positive law material, in a manneranalogous to a hypothesis in natural science. (Problem der Rechts-unterworfenheit des Gesetzgebers " (1916) 45 Juristische Bldtter 471 et seq.);as well as contributions to the basic norm theory made by L. Pitamic andA. Merkl.All this however only underlines the point in the text above.

2 In the Kelsenite context we owe the reminder of Salmond's contribution toW. Ebenstein, The Pure Theory of Law (1945), p. 91.8 Op. cit., at p. 33n. Kelsen in 1960 credits the doctrine to analysis of theprocedure always employed for knowledge (Erkenntnis) of positive law (Reine34


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JAW. 1963 MYSTERY AND MYSTIQUE IN THE BASIC NORM 35repeated statements and restatements up to the present day, hiswhole idea of the basic norm still remains shrouded in mystery,which has produced a wealth of interpretations and criticisms.But in their turn these have bred confusion as often as they haveremoved it and have not abated contemporary juristic concern.On the contrary, the problem of the basic norm has recently beenvigorously and frontally approached by a number of writers.4It is because this item is so obviously on the current agenda ofjurisprudence, and is obviously in an ill state for consideration,that we have felt warranted in publishing this present article. Itsconcern is not to criticise Kelsen's substantive thought or toendorse or differ from the various criticisms of it to which we shallrefer. It is rather to expose some of the sources within the bodyof Kelsenite expression, both of certain confusions at the heartof Kelsen's position which have provoked his critics, and of thedeepening of these confusions which have often followed theircriticisms. Our purpose, in short, is neither to blaze a trail, norto call for a retracing of steps; it is the more limited purpose ofclearing a blockage around which there is an increasing threat thatsignificant scholarly communication must wholly break down.5

IIThe threatening blockage is not, we believe, one single obstacle.It is rather the accumulation and entanglement of a congeries ofambiguities, and uncertainties, each of which prevents theclarification of some of the others. Like a majestic log jam on theSt. Lawrence they tend to turn a spacious highway into a blindalley, and each log itself from something that moves to its destina-tion, to a joint inhibitor of all movement whatsoever. Theambiguities and uncertainties of which we speak are in theexpos~s by Kelsen himself. It may be well for this reason to tryto state Kelsen's doctrine of it in all " purity " by expressing theessential feature of Kelsen's position as to the basic norm withoutany critical interpositions, in his own words wherever possible.In contrast to its early incidental treatment above mentioned,the basic norm idea is already full-fledged and even central in the

Rechtslehre (2nd ed., 1960), p. 209, here cited as " Rechtslehre (1960) ").Early in his Allgemeine Staatslehre (1925) 250, here cited as " Staatslehre"(and cf. his Reine Rechtslehre (1st ed., 1934), p. 67, here cited as " Rechts-lehre (1934) "), he said it " corresponds to some extent to the concept of theoriginal contract or the social contract constituting the State " basing theunity of the state order. He does not refer at all to Salmond, even in 1960.And see below, note 35.4 See the next section.

5 Nor are we concerned with mere linguistic or literary problems, of which ofcourse the best known concerns the fact that Kelsen's " basic norm " is notat the base but at the apex of the hierarchy of norms, by which he representsa legal system. Kelsen's work is full of figures of speech, often attractive, ifsometimes misleading. But there is no harm in this particular one, save theuncomfortable sensation of being head over heels.


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THE MODERN LAW REVIEW

Allgemeine Staatslehre (1925). It is referred to by the names" basic norm " (Grundnorm), " origin-norm " (Ursprungsnorm),and " constitution in the legal-logical sense " (Verlassung imrechtslogischen Sinne).6 Kelsen says that the basic norm " bringsabout the unity of the system " (page 84), and " founds thesystem of the legal order." It has for its typical content, he wrote,that an authority, a source of law, is set up whose expressions haveto obtain as valid: behave as the legal authority-the monarch,the popular assembly, the parliament, etc.-commands; so runs,simplified for clarity's sake, the basic norm " (page 99).Of its nature and place in relation to the legal order concerned,Kelsen said at this time that it is " a hypothetical norm whichactually (eigentlich) does not stand inside the systems of positivelegal propositions (Rechtssdtze) but first of all founds thesesystems; it is not an enacted (gesetzte) norm but a presupposed(vorausgesetzte) norm; it is only this norm which constitutes theunity of the enacted norms." Kelsen proceeds to say that " thebasic norm . . . must be introduced by legal cognition," " as ahypothesis . . . in order that the material to be conceived as law. . . could at all be apprehended as elements of the same system oflaw '." There is, he said, a correlation between the hypothesisand the material which this hypothesis governs. " The hypothesisis here determined according to the material governed by it as thematerial is determined according to the hypothesis "; and hethinks this also to be so in the realm of cognition of naturalsciences.7

The hierarchy of the legal order, Kelsen further says, " runsinto the basic norm which founds the unity of the legal order inits self-movement. Setting up first of all a law-creating organ,it forms (bildet) the constitution in a legal-logicalsense. And thelegislature which has been thus created (geschafen), by enactingnorms which regulate the legislation itself, forms (bildet)-as thenext step-the constitution in the positive law sense " (page 249).

On the present matter the Reine Rechtslehre (1934) broughtonly minor clarifications. The basic norm, it is there said, imports6 See, e.g., Staatslehre, pp. 84, 99, 104 and 249.7 In the Staatslehre the hypothetical character of the basic norm seems to belinked with the problem of the relations between international law and thestate law. " If one departs from the primacy of the international legal order,then there must be discoverable in its field a positive legal norm which setsup the highest legal authority of the single State legal orders .... In other

words, what is a legal-theoretical hypothesis from the standpoint of theprimacy of the State legal order is from the standpoint of the primacy of theinternational legal order a positive legal norm. The legal-theoretical pre-supposition which founds the unity is, as it were, pushed up (hinausgeschoben)one step higher; it is the basic norm which constitutes the international legalorder and with it the unity of the total legal system-origin-hypothesis ofinternational law." See Staatslehre, p. 126. Bed quaere his final meaning?See infra, Question B.

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" the setting up of the fundamental fact-situation (Grundtatbe-stand) of law-creation. It is the starting-point of a procedure; ithas a completely formal-dynamic character. From this basic normthe single norms of the legal system cannot be deduced " (page64). And further, " when the various norms of a legal system arereferred back to a basic norm, this happens in the manner thatit is shown that the creation of a single norm has taken place inaccordance (entsprechend) with the basic norm '" (page 65). Mostnotable here is that Kelsen wrote of the " validity " of the basicnorm, as well as of the legal order, " Under the presupposition "he wrote " that the basic norm is valid, the legal order on whichit rests is also valid," and " since it is not created in the legalprocedure, it is valid not as a positive legal norm " (page 66).The restatement of these doctrines in General Theory of Lawand State (1946) is marked by some apparent substantial develop-ments. The " question as to the reason (o f validity) of a norm "he now wrote, was closely related to the question, " What is itthat makes a system out of a multitude of norms? "1 That anorm belongs to a certain normative order " can be tested onlyby ascertaining that it derives its validity from the basic normconstituting the order." The basic norm is " the last reason ofvalidity within the normative system . . ." According to thenature of the basic norm, Kelsen distinguished " two differenttypes of . . . normative systems: static and dynamic systems.Within an order of the first kind the norms are ' valid ' . . . byvirtue of their contents: Their contents have an immediatelyevident quality that guarantees their validity, or, in other terms:the norms are valid because of their inherent appeal." The normshave this quality because they are derivable from a basic norm" as the particular is derivable from the general " (page 112).Natural law, Kelsen thought, " tends to be a static system ofnorms "1 whereas " positive law, whose basic norm consists in thedelegation of a law-making authority, constitutes a dynamicsystem." However, " to the extent that natural law theory ceasesto develop its natural order according to a static principle andsubstitutes a dynamic one, that is, as it is impelled to introducethe principle of delegation because it has to realise itself in appli-cation to actual human conditions, it imperceptibly changes intopositive law " (page 400).

Since a positive legal order is a dynamic system, its basicnorm " is nothing but the fundamental rule according to whichvarious norms of the order are to be created." Yet " the particu-lar norms of the legal order cannot be logically deduced from this8 " The quest for the reason of validity of a norm is not-like the quest for the

cause and an effect-a regressus ad infinitum; . . . a last or first cause has noplace within a system of natural reality." See General Theory of Law andState (transl. by A. Wedberg, 1946), p. 111, here cited as " General Theory."


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basic norm . . . They are to be created by a special act of will, notconcluded from a premise by an intellectual operation " (page 114)."The basic norm," Kelsen asserted in 1946," is not the arbitrary product of juristic imagination. Itscontent is determined by facts. The function of the basicnorm is to make possible the normative interpretation ofcertain facts, and that means, the interpretation of facts asthe creation and application of valid norms. Legal norms . . .are considered valid only if they belong to an order which isby and large efficacious. Therefore, the content of a basicnorm is determined by the facts through which an order iscreated and applied, to which the behaviour of the individualsregulated by this order, by and large, conforms."

Kelsen proceeds to say that " it is not required that the actualbehaviour of individuals be in absolute conformity with the order."" A normative order loses its validity when reality no longercorresponds to it, at least to a certain degree. The validityof a legal order is thus dependent upon its agreement withreality, upon its ' efficacy.' The relationship which existsbetween the validity and efficacy of a legal order-it is, so tospeak, the tension between the ' ought ' and ' is ' -can bedetermined only by an upper and lower borderline. Theagreement must neither exceed a certain maximum nor fallbelow a certain minimum."

Kelsen also provided in General Theory of Law and State moredetailed formulations of basic norms than in his earlier works." Expressed in the form of a legal norm," Kelsen says, the basicnorm of the legal order of a single state (or of a national legalorder) is as follows: " Coercive acts ought to be carried out onlyunder the conditions and in the way determined by the ' fathers 'of the constitution or the organs delegated by them " (page 116).The basic norm of international law, he said, is as follows: " TheStates ought to behave as they have customarily behaved " (page369). The basic norm of a national legal order, Kelsen added,

" does not imply that it is impossible to go beyond thatnorm. Certainly one may ask why one has to respect thefirst constitution as a binding norm. The answer might bethat the fathers of the first constitution were empowered byGodA The characteristic of so-called legal positivism is, how-ever, that it dispenses with any such religious justification ofthe legal order. The ultimate hypothesis of positivism is thenorm authorising the historically first legislator. The wholefunction of this basic norm is to confer law-creating poweron the acts of the first legislator and on all the other actsbased on the first act " (page 116).9 For fuller discussion see H. Kelsen, " II Fondamento della Validitd delDiritto " (1957) 40 Riv. di Dir. Intern. 497, at p. 502 et seq. (transl. G.Arangio-Ruiz).

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The second edition of the Reinc Rechtslehre (1960) is mainlynotable, in the present context, for purported clarifications aimedto clear away, if not the misunderstandings of critics, then at anyrate certain disapproved interpretations.

Kelsen here says that the basic norm provides the foundationfor construing (deuten) the subjective meaning " of certain actsof human will " as their objective meaning " (page 205). Because

the basic norm " is not a willed norm, not even willed by legalscience, but only a thought norm, legal science does not arrogate anorm-creating authority with the ascertainment of the basicnorm."

" Legal science does not prescribe that the commands of theconstitution givers ought to be obeyed. It remains cognition,even in its epistemological ascertainment that the basic normis the condition under which the subjective meaning of theconstitution-giving act and the subjective meaning of the actsdone according to the constitution are interpreted as their.objective meaning (page 208). . . . Upon the question, Whopresupposes the basic norm?-The Pure Theory of Lawanswers: whoever interprets the subjective meaning of theconstitution-giving acts and that of the acts performed accor-ding to the constitution as their objective meaning, that is,as an objectively valid norm " (pages 208-209n).

He now explicitly rejects, ostensibly to remove misunderstand-ings, interpretations according to which the basic norm is insidethe legal order, or can be construed out of the positive-lawmaterials as being implicitly given in them. He declares flatly thatthe basic norm is " actually ' outside the constitution ' " (pages207-208n). In an effort to attain greater precision he reformulatedthe basic norm of a national legal order as follows: " Coercive actsought to be carried out under the conditions and in the manner,which is determined by the historically first State constitution andthe norms enacted according to it. (In abbreviated form: Oneought to behave as the constitution prescribes ) " (pages 203-204).He now states that of the international legal order as: " Thestates, i.e., the governments of the states, ought to behave intheir mutual relations, or coercion of state against state ought tobe exercised, under conditions and in a manner corresponding toa given custom of the states." This, he says, is " the legal-logicalconstitution of international law " (page 222).

IIIKelsen's doctrine of the basic norm, though recognised as signifi-cant, was not accepted without hesitations and questionings evenby pupils of Kelsen. It was probably the penetration of the lateHersch Lauterpacht's criticism as to the relation between thebasic norm and the actual facts of human behaviour in the


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particular society which led Kelsen to make quite explicit in1946 that the " content " of the " basic norm " is " determinedby facts." Lauterpacht had pointed out in 1933 that " theremust be a certain parallelism " between what is and what oughtto be. " The tension between the factual and normative mustnot be too great (if the fundamental rule is to retain its useful-ness), just as it ought not to be too small (if law is to remain anormative as distinct from a natural science).' 0 The present writerdrew out the implications of this in 1946, notably that the notionsof " too great " and " too small " would require reference tosome non-legal norms of judgment, as well as to the facts."And H. L. A. Hart has recently stressed that Kelsen's characterisa-tion of the " basic norm," for instance as " hypothetical " and"postulated " and " existing in the juristic consciousness,"" obscures, if it is not actually inconsistent with, the point . . .that the question what the criteria of legal validity in any legalsystem are is a question of fact. It is a factual question thoughit is one about the existence and content of a rule." 12The same point had already been made by one of Kelsen'spupils and colleagues in Vienna, the late Felix Kaufmann, pro-ceeding from the analogy drawn by Kelsen between his " basicnorm " and the most general (and therefore ultimate) principles ofphysics, on which the unity of the system of knowledge of physicswas based. He pointed out that if this analogy of Kelsen's wascorrect then all that Kelsen could mean by speaking of the" validity " of the basic norm was its " heuristic fitness "(heuristische Tauglichkeit). " Validity " in this sense means thatit is apt for allowing phenomena to be apprehended as a unity,just as the " validity " of the ultimate principles of physics meansonly they " make it possible to apprehend the physical happeningsas a law-governed unity." "- Accordingly it seems that for Kauf-mann the " basic norm " was not (as it is for Kelsen) a norm,but rather the totality of the criteria by recourse to which wedetermine whether norms belong to a particular legal order. Hepreferred to call it the " positivity criterion " (Positivitdtskrite-rium),14 and to understand it as the definition of the concept " lawaccording to a definite legal order." And Kelsen's Estonian10 See H. Lauterpacht, "Kelsen's Pure Theory of Law " in W. I. Jennings

(ed.), Modern Theories of Law (1933), p. 111. Kelsen's later statement ofthe need for the legal order to be " y and large . efficacious " in order tobe " valid " seems a response to this criticism.

11 Stone, The Province and Function of Law (1946), p. 106 (here cited as" Stone, Province (1946) ").

12 H. L. A. Hart, The Concept of Law (1961), p. 246.13 See F. Kaufmann, Methodenlehre der Sozialwissenschaften (1936), p. 297.14 See F. Kaufmann, "Juristischer und soziologischer Rechtsbegriff," in A.

Verdross (ed.), Gesellschaft, Staat und Recht: Festschrift Hans Kelsen zum50 Geburtstag gewidmet (1931), pp. 1, 30 et seq. esp. 35, 40. See also 0.Bondy, " Logical and Epistemological Problems in Legal Philosophy " (1951)29 AustralasianJournal of Philosophy 81 at p. 92.

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follower, Artur-T6eleid Kliimann, reached the same point,'- forall practical purposes, by still a different way. He pointed outthat the 1' basic norm " as " a norm-logical fundamental norm "was " llogical in the sense that from it as a metajuridical entityit is impossible to derive anything juridical through . . . logicalprocedures." He concluded that Kelsen's basic norm was inca-pable of explaining the law or the legal order as being positive;rather it would be requisite to explain this norm itself as apositive norm. 6 And he thought it was a mere thought-constructpostulated to save Kelsen's theory from " logical openness."Kelsen's dislike of such " openness " is, of course, well known.

Another main line of comment on the basic norm idea ischaracterised by the present writer's view in 1946, that " theKelsenite inquiry . . . is essentially into the law as a logicalsystem," so that " neither Kelsen nor Austin needs to argue thatactual law does or ought to conform to their logical schemes,"and that it was an error for Kelsen to overlook this.' 7 We stillbelieve this to be the correct way of stating this criticism. But itsgist has more recently been taken up by Dennis Lloyd and GrahamHughes in a rather exceptionable form. The former says thatthere may be more than one basic norm to a given legal order,which may even (as within one constitutional instrument) be in" irreconcilable conflict," but that " until these conflicts arise andthe legal order is disrupted, there is nonetheless a legal order inexistence." '8 Hughes states the point even more extremely,asserting against Kelsen that " mature and highly ordered systemsof law have subsisted under the greatest confusion as to basicrules or fundamental norms." He instances the Roman legalorder before the Principate, between the death of Nero and theaccession of Vespasian, as an illustration of this; as charac-terised by competing and overlapping legislative powers, in con-stant struggle for " supreme power " (which when achieved wasonly temporary and uneasy) by seeking to "1amass sufficient sup-port in the mob." 19 These are proper criticisms of much thatKelsen has written; but only because in the view of the presentwriter Kelsen has often overstepped the limits of his own dis-course. 20 For within these he might well reply to both these15 Oiguskord (The Legal Order), published in Estonian (1939). We areindebted for this point to I. Tammelo, " Artur-Teleid Kliimanns Rechts-theoric " (1950) 39 Archiv ffircchts- und Sozialphilosophie, pp. 90-101.I5 See A.-T. Kliimann, op. cit., above, note 15, at pp. 39, 41. Perhaps Kelsen'sdistinction between static and dynamic normative systems developed inGeneral Theory, pp. 112-113, and his insistence (Rechtslehre (1960), p. 207)

that " ositivity of a legal norm does no t rest on the basic norm " are aresponse to this kind of criticism.17 Stone, Province (1946), p. 110.Is Se e D. Lloyd, Introduction to Jurisprudence (1959), p. 304.19 See G. Hughes, " The Existence of a Legal System " (1960) 35 New YorkUniversity L.R. 1001 at p. 1012.20 Conceivably also, bu t no t very sensibly in view of his stress on unity, Kelsenmight save his single basic norm by formulating the normative content of the


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critics that if a supposed " basic norm " was in irreconcilableconflict with itself, it was not what he was talking about; nor wasa society in which there was no identifiable source of norm-creatingpower.More significant was the neglected observation of the lateR. T. E. Latham in 1939 that the " basic norm " idea was moredifficult of use in cognising a common law system, because of thegeneral inductive approach of lawyers and judges to legal prob-lems. This explained, he thought, why Dicey could not cite asingle case to support squarely the norm of parliamentarysupremacy. And this seems to be the main point, though inde-pendently reached and too widely stated, of M. P. Golding, that" rational reconstruction " of a legal system " can be done onlypiecemeal, step-by-step fashion. It begins at the bottom andworks its way towards the top." Mr. Golding's conclusion is that" There is no a priori reason for maintaining that there is a single,specific Basic Norm which is assumed by all the lawmakingofficials of the territory," nor is the identity and content of sucha norm a datum, nor (he thinks) need there be only one such.2 1But here again the present writer would say that if Kelsen hadalways respected the limits of his own discourse, the commentwould merely have amounted to a statement of these limits ratherthan a criticism of his theory.Finally, Professor Hart has declared himself " mystified " bythe fact that, on the one hand, " Kelsen's basic norm has in asense always the same content; for it is, in all legal systems,simply the rule that the constitution or those ' who laid down thefirst constitution ' ought to be obeyed "; and that, on the otherhand, Kelsen insists on the " needless reduplication " that thereis " a further rule to the effect that the constitution (or thosewho ' laid it down ') are obeyed." This amounts, Hart thinks,to speaking of a rule that the rule laying down the criteria ofvalidity shall be obeyed.2 2This glance at some principal criticisms of Kelsen's " basicnorm " notion has a limited purpose-namely, to lay a foundationfor linking the resulting controversies with the ambiguities anduncertainties in Kelsen's own versions which it is the main objectof this article to expose. The following section will show thatKelsen can probably vouch passages from his own work to rebuteach offered point of criticism. But it will equally show that

relevant part of the constitution by way of a disjunction as follows: " Behavein accordance with what is prescribed by the authority A, or the authority B,or the authority C, etc." This could still be forced into the form of Kelsen'sbasic norm: " One ought to behave in accordance with what the constitutionprescribes," for the above disjunctive fundamental norm is in one sense anorm of a constitution.21 See M. P. Golding, " Kelsen and the Concept of ' Legal System' " (1961) 47Archiv fuir Rechts- and Sozialphilosophie 355 at pp. 385-386.

22 See H. L. A. Hart, op. cit., pp. 245-246. His reference is to the GeneralTheory, pp. xv, 113, 116 and 396.

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there are still other passages which could nevertheless sustainthe criticism by way of surrebuttal. Hart's immediately precedingpoint, for example, will be seen more clearly, and in a differentlight in the context of our immediately following questions A, Band C. The points in which he follows Lauterpacht, Kaufmann,Tammelo, 23 Kliimann, and the present writer 24 may be seen toturn on the questions B, E, and F. The common drive of Lloydand Hughes is seen to turn on a basic uncertainty in Kelsen as tohis overall enterprise, on which question B in particular is focused.It will also readily be seen that many of the issues raised in thesequestions are interlocked, and it should therefore be expected thatthe false issues arising from Kelsen's own vacillations and inadver-tencies will be no less so. Our hope is that if we can get even aglimpse of these relations, we may forestall much cross-purposeddiscussion of spurious problems, in which the master's divergentversions endlessly chase each other's tails.

IVFragebogen zur Grundnorm: A Basic Quiz on the Basic Norm.The questions on which this section is structured will serve theirfull purpose even if Professor Kelsen is not concerned to answerthem. He may, indeed, think that they are a muddying of waterswhich are really crystal-clear, and regret them as raising unwar-ranted complications. Or he may remain unperturbed in the beliefthat really thorough students of all his works will find for them-selves the necessary answers and vindications. We are convincedthat in any case the posing of these questions is necessary andfruitful. In the first place, they promote a stocktaking of theperplexities of any use of the " basic norm " concept: And forthis problem, which is by its nature at the outer frontiers of legalcognition, beyond the ways which either lawyers or jurisprudentshabitually tread and amid the " aporetics " of the legal order,the unavoidable perplexities are so great that we should avoidthe avoidable ones. But apart from this stocktaking, the questionsalso serve the purpose of exposing how precisely (or unprecisely)Kelsen has offered an answer to these perplexities. In this waythey may, in the long run, quiet issues which are not worth furtherdebating, and allow intellectual energy to concentrate on morefruitful ones.A. What is the semantic import of the other names by whichKelsen also sometimes calls the entity which he usually calls" basic norm " (Grundnorm),25 in particular the names " origin-23 I. Tammelo, Drei rechtsphilosophischeAufsdtze (1948), p. 13.24 See J. Stone, Province (1946), pp. 95-98, 105-107.25 See H. Kelsen, Das Problem der Souveranitdt und die Theorie des Vblker-reehts (1920), p. 33; Staatslehre, pp. 84, 99, 249 and later writings, in whichbasic norm " is still the most frequently occurring, but " origin.norm " andconstitution in the legal-logical sense " also still occur.


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JAN. 1963 MYSTERY AND MYSTIQUE IN THE BASIC NORM 45be the norm or complex of norms which is at the apex of thehierarchy of legal norms.)

Even in his early works Kelsen can be found to have declaredthat " the basic norm does not stand inside the system of positivelegal propositions," 27 and that because the basic norm " is notcreated in the legal procedure," it " is valid not as a positive legalnorm." 28 Yet from then up to the present he has regularlyattributed functions to the basic norm which implied that thisnorm was a part of the respective legal order. He has kept onsaying that this norm brings about the unity of the legal system,2 9not merely of the legal scholar's cognition of the legal system.He has said that the hierarchy of legal norms " runs into the basicnorm," and that this basic norm " sets up . . a law-creatingorgan." 10 The norms of a legal order cannot comfortably runinto a mere thought-construct of the legal scholar, and it wouldbe very quaint for a thought-construct to set up a law-creatingorgan. And the fact that the later Kelsen found it necessary torepudiate the idea that his theory gives to jurisprudents norm-creating power, suggests that he too has felt discomfort at theimplications of his own language.31

Moreover, unless Kelsen means to say that his " basic normis intrasystemic, despite the fact that he explicitly insists that it isextrasystemic, what sense does it make for him to assert repeatedlythat it is the " highest norm " of a normative system? 2 We canspeak of something being higher or lower than something elseonly when the entities thus compared belong to the same or aparallel order. So that unless Kelsen's hierarchy of norms repre-sents something non-legal altogether, we must apparently assumethat his " basic norm " is part of the hierarchy of legal norms,that is, intrasystemic. Indeed in the very same sentence he alsosays it is the " last reason of validity within the normativesystem." 83A goodly part of the controversies in this matter turn onwhether we take the " basic norm " to mean what is implied inthe operations which Kelsen purports to execute with it. (Judgingfrom these, it would appear to be intrasystemic, and its contentsocially conditioned.) Or whether we are to take seriously Kelsen'sexplicit assertions about it, notably about its location and27 See Staatslehre, p. 104.25 Rechtslehre (1960), p. 66.29 Staatslehre, p. 84.80 Ibid. p. 249.81 Cf. also General Theory, p. 113, where Kelsen is concerned to insist that thevarious norms of a " dynamic " system, such as a legal order, " cannot beobtained from the basic norm by any intellectual operation."32 See General Theory, p. 111.33See above, note 8. Emphasis here is supplied.


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content.3 4 (These would make it extrasystemic and not sociallydetermined.) Is Kelsen to be read subject to the maxim plusvalet agere quam dicere? A particular difficulty in this matterseems to spring from the fact that in his earlier writings Kelsen(as he himself belatedly recognised in 1960) long failed to makea clear distinction between a proposition about law and a legalnorm (or proposition of law), both of which he often ran togetherin the term " Rechtssatz." " And one disastrous effect of this,of which many confusing and wide-ranging implications still persistdespite his peccavi, is his mixing up of the respective tasks of thelawyer and the jurisprudent theoretician."6

C. What is the precise import of Kelsen's formulation of thebasic norm? Is it intended to express a uniform basic norm forall legal orders (e.g., " The constitution in the legal sense ought tobe obeyed.") (Here called " Version No. I ")? Or is it intendedmerely as a statement matrix with a blank to be diferently filledin for each legal order?

In the latter case-Is it of the pattern-" The constitution inthe legal sense of-(Instruction: Here insert " Legal Order A,"or " Legal Order B," etc.) ought to be obeyed." (Here calledVersion No. II)? Or is it of the pattern " Norms-(Instruction:Here incorporate the norm or norms which make up the constitu-tion of the particularLegal Order A, or B, etc., in question) oughtto be obeyed" (here called Version No. III)?"

H. L. A. Hart's comment, that " Kelsen's basic norm has ina sense always the same content," is sound as against Version I,but not as against Version II nor (a fortiori) against Version III.On the other hand, his criticism that Kelsen's " basic norm " is aneedless " reduplication " of the " constitution " of the legal orderin question seems absolutely correct as to Version III, since thisreally identifies the " basic norm " with the " constitution " of34 H. Ofstad, " The Descriptive Definition of the Concept 'Legal Norm' . "(1950) Theoria, Vol. 16, pt. ii, 118 at p. 121, who observes that on certainmatters " it is no t excluded that the author may have thought clearly whathe only expressed badly."35 See the footnote admission on the capital point in Rechtslehre (1960), p. 83.The distinction was left confused even in General Theory, where he stilluses language which fails to discriminate clearly between a proposition oflaw and a proposition about law. Cf. M. D. Golding, article cited above,note 21 at p. 360.36 Yet in the same work on p. 209 he is still claiming that " the doctrine of the

basic norm is the result of an analysis of the procedure which knowledge ofpositive law has employed at all times."37 Using the substance of Kelsen's abbreviated form of the basic norm fromRechtslehre (1960), p. 204: "One ought to behave as the constitutionprescribes." The formula, as it stands, may represent an identical legalnorm for all legal orders, or it may be intended as, " One ought to behaveas the constitution of . . . prescribes," representing a kind of matrix of thebasic norm, in which the blank would be filled in separately for each legalorder, of France, or Austria or the United Kingdom, etc. Still a thirdpossibility as we shall see is that what are incorporated into the blank arethe actual provisions of the " constitution " of each legal order.

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Juq. 1963 MYSTERY AND MYSTIQUE IN THE BASIC NORM 47

the given legal order; but only qualifiedly so as against Versions Iand II. For under these versions Kelsen could show a kind ofaesthetic " need " for a " basic norm " in order to cognise thevarious national legal orders as existing under an assumed " worldlegal order."

D. What are the phenomena by reference to which the contentsof the basic norm, and in particular those attributing norm-creating competence, are determined? Are they exclusively excis-tential facts of social life and behaviour in a given community?Or do they include along with such facts non-legal normative (e.g.,ethico-political) judgments? Or are the contents of the basic normimplied in, or in some way to be deduced from, the existing normsof the particular egal order? If the last, then how is this possiblein view of the fact that the " legal order " can (ex hypothesiKelseniensi) only be identified by reference to its basic norm?

Kelsen's requirement for a legal system that it shall " by andlarge " be " efficacious " points to the first alternative,38 whereashis conception of the basic norm as a presupposed or (possibly) ahypothetical norm 39 may point to the second alternative. Thisalternative was perhaps best expressed by Ilmar Tammelo in1948, when he argued that the " basic norm " is a kind of norm" which is implicitly given in the texts of the statutes, and theforms of expression of customary law, and can be construed outof the elaboration of the positive law materials." 40 And Kelsenapparently thought in 1960 that this possibility was importantenough to warrant an express rejection of it. 41 If this rejectionwere final then there would be left only the possibility of deter-mination by factual phenomena or by non-legal normative judg-ments or both, as Lauterpacht and Hart, as well as this writer,have argued. Further questions would then present themselvesabout the " purity " of Kelsen's method.

E. What precisely does Kelsen mean by saying that the basicnorm is a " hypothesis " or that it is " hypothesised " or " hypo-thetical "? Are these the same thing or are they related but notidentical notions? Or are they the same notion applied to difJerententities (i.e., " basic norm " in two senses)? Or both of these?

If Kelsen's " basic norm " is literally a hypothesis, then itcannot strictly speaking be a norm. It may be permissible to'5 See, e.g., Rechtslehre (1960), pp . 212-221, and What Is Justice? (1957),209, 224: "The principle of effectiveness is the general basic norm [sic I]that juristic thinking assumes whenever it acknowledges a set of norms asthe valid constitution of a particular state. This norm may be formulatedas follows: Men ought to behave in conformity with a legal order only ifthis legal order as a whole is effective."30 See, e.g., Rechtslehre (1960), pp. 9, 46 et seq.40 L. Tammelo, Drei rechtsphilosophische Aufsdtze, (1948, author's transl.), p. 13.

The possibility is also referred to in Stone, Province (1946), p. 106, alongwith the consequential question.41 Rechtslehre (1960), p. 207.


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speak of a norm as hypothesised (or hypothetical in that sense);but scarcely of a norm as a hypothesis. A hypothesis howevertentative is still a thesis, and is certainly not a " norm " in anyof Kelsen's senses of something prescriptive, or a " depsychologisedcommand," 42 or a proposition with an imperative or prescriptiveimport. Yet we are prevented from dismissing this difficulty as amere lapsus linguae by the fact that in the very context Kelsendescribes the " basic norm " of a national legal order as a hypo-thesis " expressed in the form of a legal norm." 4 Admittedlywhat he may mean by these words may be what Felix Kaufmanncalled a " positivity criterion," and such a criterion may con-ceivably not be a norm at all. 44 But that still leaves Kelsen'sinsistence that it is both a hypothesis and a norm as a chronicfocus of confusion.If, on the other hand, we adopt the interpretation that Kelsen's"basic norm " is a hypothesised (or hypothetical) norm, this toopresents problems. If the analogy for legal science is to thehypothesis of a natural science, should not the basic norm of agiven legal order cease to be hypothetical once it is provedtenable? If, on the other hand, this hypothetical character ismeant to be analogous to the axiomatic principles of naturalscience, Kelsen's desire to insist that other norms cannot bededuced from the basic norm 45 seems out of place. For it is thefunction of such axioms at least to serve as major premises indeductive systems.

F. What quite does Kelsen mean when he says that thevalidity of the basic norm of a legal order is presupposed? Does hemean that the validity of this norm has still to be established, butmust be established by reference to some higher norms which arenot the concern of the lawyer or jurisprudent? Or does he meanthat the validity of this norm has still to be established, but mustbe established by reference to criteria which may not be norms atall, but rather some kind of facts which again would not be theconcern of the lawyer or jurisprudent?

Both alternatives, while they might not be inconsistent withany technical Kelsenite doctrine, seem entirely at odds, as thiswriter pointed out in 1946, with the Kelsenite pretension thatsociological jurisprudence (and presumably also the theory ofjustice) depend on the conclusions of the pure theory of law,42 See General Theory, p. 35.43 See ibid., p. 116. Moreover, of course, the basic norm is no t sanction-

stipulating, in the sense in which, at moments of full advertence, Kelsen laysthis down as essential for a legal norm. The basic norm would therefore,according to Rechtslehre (1960), pp. 51-59, have to be some form of"dependent" (" unselbstandige") (or as Austin would have said," mperfect ") legal norm. Cf. M. P. Golding, article cited above, note 21at p. 377.

44 See, e.g., N. Hartmann, 2 Ethics, p. 70 (transl. S. Coit, 1932).45 See, for example, Rechtslehre (1934). p. 64, General Theory, p. 114.

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JAN. 1963 MYSTERY AND MYSTIQUE IN THE BASIC NORM 49rather than vice versa. The efficaciousness of the norms of a legalorder which he admits to be required for " the validity " of theorder would seem to make sociological inquiry almost the pre-ordinated discipline. In fact, of course, such a rivalry forpreordination is vain. Each discipline presupposes the other incertain respects and depends upon it in others.A related problem is the sense in which it is proper to speakof the " validity " of a legal order, and (in whatever sense (if any)this is proper) whether it can also be proper (and in what sense)for Kelsen also to speak of the " validity " of its basic norm 4Clearly these senses must be different from the ordinary one inwhich Kelsen speaks of a norm of a legal system as being validbecause it is made conformably to the " basic norm." The " basicnorm " cannot be " the reason " for its own validity. And ifthere are criteria by reference to which this " validity " may bejudged, they are not lawyers' or jurisprudents' business, nor there-fore is " validity " in this sense. This is perhaps what Kelsenmeans to convey when saying its " validity " is "presupposed."But even with this allowance it still seems an oddity to speak ofthe " validity " of " the legal order," assuming this to be aself-contained order, and not one subordinate to another.4 7 In anystrict Kelsenite sense one should say that a legal order eitherexists, or it does not exist, and not that is " valid " or " invalid."But perhaps what Kelsen means is only that the legal order whichhas a " basic norm " which is " valid," in some sense legally andjurisprudentially irrelevant, is a valid legal order. And perhapsall this is but an appropriately obscure example of the contem-porary juristic relevance of the adage, veritas norma sua et falsi.

G. What is the bearing of Kelsen's purity postulate on his ideaof the basic norm? Is the method of cognition of the basic normintended to be " pure "? Or does Kelsen's hankering to keep thebasic norm " outside " the legal system imply that the cognitionof it is also methodologically outside the competence of the puretheorist of law?

The first alternative must be rejected. Obviously the task ofcognising the basic norm is different toto coelo from that whichconcerns its subordinate norms. Yet the second alternative is alsodoubtful. The basic norm appears to be eminently a concern withwhich Kelsen's Pure Theory of Law has struggled. Perhaps theescape from this dilemma is to say that there is no cognising ofthe basic norm at all, and that therefore for Kelsen the question ofthe application of his purity postulate does not here arise at all.46 e.g., in Rechtslehre (1960), p. 219.47 Kelsen's statements about the meaning of the word "validity," e.g., inGeneral Theory, pp. 30, 39 and 155, are no t very helpful. To speak of

" pecific existence " and "binding force " of norms is to illuminateobscurus per obscuriorem. Cf. M. P. Golding, article cited above, note 21at p. 368.


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TH E MODERN LAW REVIEW

But in that case the Kelsenite theory of law could either neverhave an application to any actual system of law, or it would haveto " choose " a basic norm to be presupposed by lawyers or juris-prudents, through a " Gliicksfall der Intuition," an unreasoned-even-when-apt guess at it. But the latter is scarcely possible.The act of presupposing a " basic norm " is, it is true, an act ofwill, and not cognitive; yet the search for what is to be pre-supposed, or is presupposable, seems incorrigibly a matter ofcognition, involving method in thinking.

VThe questions above posed do not exhaust the mysteries ofKelsen's vision of the basic norm, much less the aporias, the" waylessness," of the whole subject of the basic norm itself.Even if some of them are not as void of answers as the writertends to think, he is confident that sufficient of them are so toshow that intellectual traffic along this road will not get anywherewithout much radical self-questioning on quite preliminarymatters, by those who are eager to debate the final ones. Pendingthis, even amid Kelsen's most attractive polemics about these finalmatters, we should remember that it is precisely Kelsen's ownwritings which are the source of the more basic confusions.

We said in opening that our design in this paper was not totake substantive issue with Kelsen's thought. As to this, thepresent writer has already taken his main positions in The Provinceand Function of Law, and these will be elaborated elsewhere inthe light of Kelsen's later works. Nor is it even necessary to thepresent purpose that Kelsen should himself make the choices whichare essential if the intellectual traffic blocked and snarled aroundsome of his central notions is to make further progress. It will besufficient if scholars, who have hitherto striven conscientiously tobreak through, should find (as we have done) that the answerlessquestions which we have raised help to clear our minds as to whythe strivings are so often vain. If we can then explore each ofthe possibilities raised by our questions, without too much confu-sion and cross-purposes, all the better. Yet, also, if we shoulddecide that even this is an unpromising venture, the frustrationsof trying minutely to analyse what is still inchoate may end, andenergies turned to better purposes.

JULIUS STONE.*

* B.A., D.C.L., LL.M., S.J.D.; Challis Professor of Jurisprudence and InternationalLaw, University of Sydney.

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