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MYSTERY AND MYSTIQUE IN THE BASIC NORM

I
THE problem of the basic norm of legal orders was raised more than half a century ago, in the first edition of Sir John Salmond's Jurisprudence (1902). 1 " There must be found in every legal system," said this seminal thinker, " certain ultimate principles from which all others are derived, but which are themselves selfexistent. Before there can be any talk of legal sources, there must be in existence some law which establishes them and gives them their authority." Salmond added that the English rule that the Acts of Parliament have the force of law " is legally ultimate; its source is historical only, not legal." When Hans Kelsen first directly mentioned the problem in his Das Problem der Souverdnittit und die Theorie des V5lkerrechts (1920) this did not rescue Salmond's pioneering thought from oblivion, for Kelsen was unaware of his predecessor.' Kelsen's initial statement of the idea of the basic norm is that the justification of a sentence such as " The murderer ought to be punished by imprisonment," cannot be by recourse to an isfactum, but involves recourse to a norm, an ought, which ultimately leads back the justification to what Kelsen called the " origin-norm" (Ursprungsnorm) or " constitution in the legallogical sense " (Verfassung im rechtslogischen Sinne). " This origin-norm," he said, " is the hypothesis of every positive legal system, of every concrete legal or state order." 3 Despite Kelsen's
I See Salmond, op. cit., p. 110. In the Preface to his Hauptprobleme der Staatsrechtslehre (2nd ed., 1923), p. xv, Kelsen claims to have already fore-

shadowed his position in 1913 in his " Zur Lehre yom dffentlichen Rechtsgeschaft " (1913) 31 Archiy. des 6ff. Rechts 53, 190, as implicit in the distinction between " the being " and " the becoming " of a legal norm. He also there claims to have " presented clearly " the concept of " the basic norm "
itself in his " Reichsgesetz und Landesgesetz nach bsterreichischer Verias-

sung," 32 Arch. des 5ff. Rechts 202 at p. 216 et seq. " Of course, without the distinction developed later between the basic norm as the constitution in the legal-logical sense and constitution in the positive law sense." Kelsen there also acknowledged A. Verdross' account in 1916 of the basic norm as a hypothesis for comprehending the positive law material, in a manner analogous to a hypothesis in natural science. (Problem der Rechtsunterworfenheit des Gesetzgebers " (1916) 45 Juristische Bldtter 471 et seq.); as well as contributions to the basic norm theory made by L. Pitamic and A. Merkl. All this however only underlines the point in the text above. In the Kelsenite context we owe the reminder of Salmond's contribution to
W. Ebenstein, The Pure Theory of Law (1945), p. 91.

Op.

cit., at p. 33n. Kelsen in 1960 credits the doctrine to analysis of the procedure always employed for knowledge (Erkenntnis) of positive law (Reine 34

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repeated statements and restatements up to the present day, his whole 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 have removed it and have not abated contemporary juristic concern. On the contrary, the problem of the basic norm has recently been vigorously and frontally approached by a number of writers.4 It is because this item is so obviously on the current agenda of jurisprudence, and is obviously in an ill state for consideration, that we have felt warranted in publishing this present article. Its concern is not to criticise Kelsen's substantive thought or to endorse or differ from the various criticisms of it to which we shall refer. It is rather to expose some of the sources within the body of Kelsenite expression, both of certain confusions at the heart of Kelsen's position which have provoked his critics, and of the deepening of these confusions which have often followed their criticisms. Our purpose, in short, is neither to blaze a trail, nor to call for a retracing of steps; it is the more limited purpose of clearing a blockage around which there is an increasing threat that significant scholarly communication must wholly break down.5 II The threatening blockage is not, we believe, one single obstacle. It is rather the accumulation and entanglement of a congeries of ambiguities, and uncertainties, each of which prevents the clarification of some of the others. Like a majestic log jam on the St. Lawrence they tend to turn a spacious highway into a blind alley, and each log itself from something that moves to its destination, to a joint inhibitor of all movement whatsoever. The ambiguities and uncertainties of which we speak are in the expos~s by Kelsen himself. It may be well for this reason to try to state Kelsen's doctrine of it in all " purity " by expressing the essential feature of Kelsen's position as to the basic norm without any 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 " Rechtslehre (1934) "), he said it " corresponds to some extent to the concept of the original contract or the social contract constituting the State " basing the unity 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 of course the best known concerns the fact that Kelsen's " basic norm " is not

at the base but at the apex of the hierarchy of norms, by which he represents a legal system. Kelsen's work is full of figures of speech, often attractive, if sometimes misleading. But there is no harm in this particular one, save the uncomfortable sensation of being head over heels.

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Allgemeine Staatslehre (1925). It is referred to by the names " basic norm " (Grundnorm), " origin-norm " (Ursprungsnorm), and " constitution in the legal-logical sense " (Verlassung im rechtslogischen Sinne).6 Kelsen says that the basic norm " brings about the unity of the system " (page 84), and " founds the system of the legal order." It has for its typical content, he wrote, that an authority, a source of law, is set up whose expressions have to 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 which actually (eigentlich) does not stand inside the systems of positive legal propositions (Rechtssdtze) but first of all founds these systems; it is not an enacted (gesetzte) norm but a presupposed (vorausgesetzte) norm; it is only this norm which constitutes the unity of the enacted norms." Kelsen proceeds to say that " the
basic norm . . . must be introduced by legal cognition," " as a hypothesis . . . in order that the material to be conceived as law

. . . could at all be apprehended as elements of the same system of law '." There is, he said, a correlation between the hypothesis and the material which this hypothesis governs. " The hypothesis is here determined according to the material governed by it as the material is determined according to the hypothesis "; and he thinks this also to be so in the realm of cognition of natural sciences.7 The hierarchy of the legal order, Kelsen further says, " runs into the basic norm which founds the unity of the legal order in its self-movement. Setting up first of all a law-creating organ, it forms (bildet) the constitution in a legal-logical sense. And the legislature which has been thus created (geschafen), by enacting norms which regulate the legislation itself, forms (bildet)-as the next step-the constitution in the positive law sense " (page 249). On the present matter the Reine Rechtslehre (1934) brought only minor clarifications. The basic norm, it is there said, imports
6 See, e.g., Staatslehre, pp. 84, 99, 104 and 249. 7 In the Staatslehre the hypothetical character of the basic norm seems to be linked with the problem of the relations between international law and the state 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 sets up the highest legal authority of the single State legal orders .... In other words, what is a legal-theoretical hypothesis from the standpoint of the primacy of the State legal order is from the standpoint of the primacy of the international legal order a positive legal norm. The legal-theoretical presupposition which founds the unity is, as it were, pushed up (hinausgeschoben) one step higher; it is the basic norm which constitutes the international legal order and with it the unity of the total legal system-origin-hypothesis of international 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 (Grundtatbestand) of law-creation. It is the starting-point of a procedure; it has a completely formal-dynamic character. From this basic norm the single norms of the legal system cannot be deduced " (page 64). And further, " when the various norms of a legal system are referred back to a basic norm, this happens in the manner that it is shown that the creation of a single norm has taken place in accordance (entsprechend) with the basic norm '" (page 65). Most notable here is that Kelsen wrote of the " validity " of the basic norm, as well as of the legal order, " Under the presupposition " he wrote " that the basic norm is valid, the legal order on which it rests is also valid," and " since it is not created in the legal procedure, it is valid not as a positive legal norm " (page 66). The restatement of these doctrines in General Theory of Law and State (1946) is marked by some apparent substantial developments. The " question as to the reason (of validity) of a norm " he now wrote, was closely related to the question, " What is it that makes a system out of a multitude of norms? "1 That a norm belongs to a certain normative order " can be tested only by ascertaining that it derives its validity from the basic norm constituting the order." The basic norm is " the last reason of
validity within the normative system . . ." According to the
"

nature of the basic norm, Kelsen distinguished

two different

types of . . . normative systems: static and dynamic systems. Within an order of the first kind the norms are ' valid ' . . . by

virtue of their contents: Their contents have an immediately evident quality that guarantees their validity, or, in other terms: the norms are valid because of their inherent appeal." The norms have 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 of norms "1 whereas " positive law, whose basic norm consists in the delegation of a law-making authority, constitutes a dynamic system." However, " to the extent that natural law theory ceases to develop its natural order according to a static principle and substitutes a dynamic one, that is, as it is impelled to introduce the principle of delegation because it has to realise itself in application to actual human conditions, it imperceptibly changes into positive law " (page 400). Since a positive legal order is a dynamic system, its basic norm " is nothing but the fundamental rule according to which various norms of the order are to be created." Yet " the particular norms of the legal order cannot be logically deduced from this
8 " 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 no place within a system of natural reality." See General Theory of Law and
State (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, not

concluded from a premise by an intellectual operation " (page 114). "The basic norm," Kelsen asserted in 1946, " is not the arbitrary product of juristic imagination. Its content is determined by facts. The function of the basic norm is to make possible the normative interpretation of certain facts, and that means, the interpretation of facts as the creation and application of valid norms. Legal norms . . . are considered valid only if they belong to an order which is by and large efficacious. Therefore, the content of a basic norm is determined by the facts through which an order is created and applied, to which the behaviour of the individuals regulated by this order, by and large, conforms." Kelsen proceeds to say that " it is not required that the actual behaviour of individuals be in absolute conformity with the order." " A normative order loses its validity when reality no longer corresponds to it, at least to a certain degree. The validity of a legal order is thus dependent upon its agreement with reality, upon its ' efficacy.' The relationship which exists between the validity and efficacy of a legal order-it is, so to
speak, the tension between the ' ought ' and ' is '-can be

determined only by an upper and lower borderline. The agreement must neither exceed a certain maximum nor fall below a certain minimum." Kelsen also provided in General Theory of Law and State more detailed formulations of basic norms than in his earlier works. " Expressed in the form of a legal norm," Kelsen says, the basic norm of the legal order of a single state (or of a national legal order) is as follows: " Coercive acts ought to be carried out only under 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: " The States ought to behave as they have customarily behaved " (page 369). The basic norm of a national legal order, Kelsen added, " does not imply that it is impossible to go beyond that norm. Certainly one may ask why one has to respect the first constitution as a binding norm. The answer might be that the fathers of the first constitution were empowered by GodA The characteristic of so-called legal positivism is, however, that it dispenses with any such religious justification of the legal order. The ultimate hypothesis of positivism is the norm authorising the historically first legislator. The whole function of this basic norm is to confer law-creating power on the acts of the first legislator and on all the other acts based on the first act " (page 116).
9 For fuller discussion see H. Kelsen, " II Fondamento della Validitd del Diritto " (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 mainly notable, in the present context, for purported clarifications aimed to clear away, if not the misunderstandings of critics, then at any rate certain disapproved interpretations. Kelsen here says that the basic norm provides the foundation for construing (deuten) the subjective meaning " of certain acts of human will " as their objective meaning " (page 205). Because the basic norm " is not a willed norm, not even willed by legal science, but only a thought norm, legal science does not arrogate a norm-creating authority with the ascertainment of the basic norm." " Legal science does not prescribe that the commands of the constitution givers ought to be obeyed. It remains cognition, even in its epistemological ascertainment that the basic norm is the condition under which the subjective meaning of the constitution-giving act and the subjective meaning of the acts done according to the constitution are interpreted as their .objective meaning (page 208). . . . Upon the question, Who presupposes the basic norm?-The Pure Theory of Law answers: whoever interprets the subjective meaning of the constitution-giving acts and that of the acts performed according to the constitution as their objective meaning, that is, as an objectively valid norm " (pages 208-209n). He now explicitly rejects, ostensibly to remove misunderstandings, interpretations according to which the basic norm is inside the legal order, or can be construed out of the positive-law materials as being implicitly given in them. He declares flatly that
the basic norm is " actually ' outside the constitution ' " (pages

207-208n). In an effort to attain greater precision he reformulated the basic norm of a national legal order as follows: " Coercive acts ought to be carried out under the conditions and in the manner, which is determined by the historically first State constitution and the norms enacted according to it. (In abbreviated form: One ought to behave as the constitution prescribes ) " (pages 203-204). He now states that of the international legal order as: " The states, i.e., the governments of the states, ought to behave in their mutual relations, or coercion of state against state ought to be exercised, under conditions and in a manner corresponding to a given custom of the states." This, he says, is " the legal-logical constitution of international law " (page 222). III Kelsen's doctrine of the basic norm, though recognised as significant, was not accepted without hesitations and questionings even by pupils of Kelsen. It was probably the penetration of the late Hersch Lauterpacht's criticism as to the relation between the basic norm and the actual facts of human behaviour in the

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particular society which led Kelsen to make quite explicit in

1946 that the " content " of the " basic norm " is " determined

by facts." Lauterpacht had pointed out in 1933 that " there must be a certain parallelism " between what is and what ought to be. " The tension between the factual and normative must not be too great (if the fundamental rule is to retain its usefulness), just as it ought not to be too small (if law is to remain a normative as distinct from a natural science).' 0 The present writer drew out the implications of this in 1946, notably that the notions
of " too great " and " too small " would require reference to

some non-legal norms of judgment, as well as to the facts." And H. L. A. Hart has recently stressed that Kelsen's characterisation 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 legal system are is a question of fact. It is a factual question though it is one about the existence and content of a rule." 12 The same point had already been made by one of Kelsen's pupils and colleagues in Vienna, the late Felix Kaufmann, proceeding from the analogy drawn by Kelsen between his " basic norm " and the most general (and therefore ultimate) principles of physics, on which the unity of the system of knowledge of physics was based. He pointed out that if this analogy of Kelsen's was correct 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 that it is apt for allowing phenomena to be apprehended as a unity, just as the " validity " of the ultimate principles of physics means only they " make it possible to apprehend the physical happenings as a law-governed unity." "- Accordingly it seems that for Kaufmann the " basic norm " was not (as it is for Kelsen) a norm, but rather the totality of the criteria by recourse to which we determine whether norms belong to a particular legal order. He preferred to call it the " positivity criterion " (Positivitdtskriterium),14 and to understand it as the definition of the concept " law

according to a definite legal order."

And Kelsen's Estonian

10 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 of

the need for the legal order to be " by and large . be " valid " seems a response to this criticism.
11 Stone, The Province and Function of Law (1946), " Stone, Province (1946) ").
12

efficacious " in order to

p. 106 (here cited as

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 zum 50 Geburtstag gewidmet (1931), pp. 1, 30 et seq. esp. 35, 40. See also 0. Bondy, " Logical and Epistemological Problems in Legal Philosophy " (1951) 29 Australasian Journal of Philosophy 81 at p. 92.

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follower, Artur-T6eleid Kliimann, reached the same point,'- for

all practical purposes, by still a different way. He pointed out that the 1' basic norm " as " a norm-logical fundamental norm " was " illogical in the sense that from it as a metajuridical entity it is impossible to derive anything juridical through . . . logical procedures." He concluded that Kelsen's basic norm was incapable of explaining the law or the legal order as being positive; rather it would be requisite to explain this norm itself as a positive norm. 6 And he thought it was a mere thought-construct postulated 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 is characterised by the present writer's view in 1946, that " the Kelsenite inquiry . . . is essentially into the law as a logical system," so that " neither Kelsen nor Austin needs to argue that actual law does or ought to conform to their logical schemes," and that it was an error for Kelsen to overlook this.' 7 We still believe this to be the correct way of stating this criticism. But its gist has more recently been taken up by Dennis Lloyd and Graham Hughes in a rather exceptionable form. The former says that there 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 and the legal order is disrupted, there is nonetheless a legal order in existence." '8 Hughes states the point even more extremely, asserting against Kelsen that " mature and highly ordered systems of law have subsisted under the greatest confusion as to basic rules or fundamental norms." He instances the Roman legal order before the Principate, between the death of Nero and the accession of Vespasian, as an illustration of this; as characterised by competing and overlapping legislative powers, in constant struggle for " supreme power " (which when achieved was only temporary and uneasy) by seeking to "1 amass sufficient support in the mob." 19 These are proper criticisms of much that Kelsen has written; but only because in the view of the present writer Kelsen has often overstepped the limits of his own discourse. 2 0 For within these he might well reply to both these
15 Oiguskord

indebted for this point to I. Tammelo, " Artur-Teleid Kliimanns Rechtstheoric " (1950) 39 Archiv ffir Rcchts- und Sozialphilosophie, pp. 90-101. I5 See A.-T. Kliimann, op. cit., above, note 15, at pp. 39, 41. Perhaps Kelsen's distinction between static and dynamic normative systems developed in that " positivity of a legal norm does not rest on the basic norm " are a response to this kind of criticism.
17

(The

Legal Order), published

in Estonian

(1939).

We

are

General Theory, pp. 112-113, and his insistence (Rechtslehre (1960), p. 207)

Stone, Province (1946), p. 110. University L.R. 1001 at p. 1012.

Is See D. Lloyd, Introduction to Jurisprudence (1959), p. 304. 19 See G. Hughes, " The Existence of a Legal System " (1960) 35 New York
20

Conceivably also, but not very sensibly in view of his stress on unity, Kelsen might 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 irreconcilable conflict with itself, it was not what he was talking about; nor was a society in which there was no identifiable source of norm-creating power. More significant was the neglected observation of the late
R. T. E. Latham in 1939 that the " basic norm " idea was more

difficult of use in cognising a common law system, because of the general inductive approach of lawyers and judges to legal problems. This explained, he thought, why Dicey could not cite a single case to support squarely the norm of parliamentary supremacy. And this seems to be the main point, though independently reached and too widely stated, of M. P. Golding, that " rational reconstruction " of a legal system " can be done only piecemeal, step-by-step fashion. It begins at the bottom and works 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 lawmaking officials of the territory," nor is the identity and content of such 21 a norm a datum, nor (he thinks) need there be only one such. But here again the present writer would say that if Kelsen had always respected the limits of his own discourse, the comment would merely have amounted to a statement of these limits rather than a criticism of his theory. Finally, Professor Hart has declared himself " mystified " by the fact that, on the one hand, " Kelsen's basic norm has in a sense always the same content; for it is, in all legal systems, simply the rule that the constitution or those ' who laid down the first constitution ' ought to be obeyed "; and that, on the other hand, Kelsen insists on the " needless reduplication " that there is " a further rule to the effect that the constitution (or those who ' laid it down ') are obeyed." This amounts, Hart thinks, to speaking of a rule that the rule laying down the criteria of 2
validity shall be obeyed.2

This glance at some principal criticisms of Kelsen's " basic norm " notion has a limited purpose-namely, to lay a foundation for linking the resulting controversies with the ambiguities and uncertainties in Kelsen's own versions which it is the main object of this article to expose. The following section will show that Kelsen can probably vouch passages from his own work to rebut each offered point of criticism. But it will equally show that
relevant part of the constitution by way of a disjunction as follows: " Behave

21
22

in 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's basic norm: " One ought to behave in accordance with what the constitution prescribes," for the above disjunctive fundamental norm is in one sense a norm of a constitution. See M. P. Golding, " Kelsen and the Concept of ' Legal System' " (1961) 47 Archiv fuir Rechts- and Sozialphilosophie 355 at pp. 385-386. See H. L. A. Hart, op. cit., pp. 245-246. His reference is to the General Theory, pp. xv, 113, 116 and 396.

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there are still other passages which could nevertheless sustain the criticism by way of surrebuttal. Hart's immediately preceding point, for example, will be seen more clearly, and in a different light in the context of our immediately following questions A, B and C. The points in which he follows Lauterpacht, Kaufmann, Tammelo, 23 Kliimann, and the present writer 24 may be seen to turn on the questions B, E, and F. The common drive of Lloyd and Hughes is seen to turn on a basic uncertainty in Kelsen as to his overall enterprise, on which question B in particular is focused. It will also readily be seen that many of the issues raised in these questions are interlocked, and it should therefore be expected that the false issues arising from Kelsen's own vacillations and inadvertencies will be no less so. Our hope is that if we can get even a glimpse of these relations, we may forestall much cross-purposed discussion of spurious problems, in which the master's divergent versions endlessly chase each other's tails. IV Fragebogen zur Grundnorm: A Basic Quiz on the Basic Norm. The questions on which this section is structured will serve their full purpose even if Professor Kelsen is not concerned to answer them. He may, indeed, think that they are a muddying of waters which are really crystal-clear, and regret them as raising unwarranted complications. Or he may remain unperturbed in the belief that really thorough students of all his works will find for themselves the necessary answers and vindications. We are convinced that in any case the posing of these questions is necessary and fruitful. In the first place, they promote a stocktaking of the perplexities of any use of the " basic norm " concept: And for this problem, which is by its nature at the outer frontiers of legal cognition, beyond the ways which either lawyers or jurisprudents habitually tread and amid the " aporetics " of the legal order, the unavoidable perplexities are so great that we should avoid the avoidable ones. But apart from this stocktaking, the questions also serve the purpose of exposing how precisely (or unprecisely) Kelsen has offered an answer to these perplexities. In this way they may, in the long run, quiet issues which are not worth further debating, and allow intellectual energy to concentrate on more fruitful ones. A. What is the semantic import of the other names by which Kelsen also sometimes calls the entity which he usually calls " basic norm " (Grundnorm),25 in particular the names " origin23 24 25

I. Tammelo, Drei rechtsphilosophische Aufsdtze (1948), p. 13. See J. Stone, Province (1946), pp. 95-98, 105-107. See H. Kelsen, Das Problem der Souveranitdt und die Theorie des Vblkerreehts (1920), p. 33; Staatslehre, pp. 84, 99, 249 and later writings, in which basic norm " is still the most frequently occurring, but " origin.norm " and constitution in the legal-logical sense " also still occur.

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norm " (Ursprungsnorm) and " constitution in legal-logical sense " (Verfassung irn rechtslogischen Sinne)? While it would appear that Kelsen intends by all of these names to refer to one and the same entity, they are not all semantically apt for this purpose. The adjective " basic " indeed is itself inapt for a norm which Kelsenite theory places at the top of the pyramid of hierarchy of norms. " Apex " norm would be far more appropriate; especially, as we shall see, because this would still leave in Kelsen's ambiguous use of the term " basic norm " a residue of meaning to which that term is less semantically incongruous. Second, the term " origin-norm," implying clarity and precision of source, seems at odds with Kelsen's insistence that the " basic " norm is merely, hypothetical or pre6 supposed, 2 as well as with his frequent assertion that it is outside the system of legal norms altogether. Third, the phrase " constitution in the legal-logical sense " also bears troublesome semantic baggage in several ways. The word " constitution " connotes a plurality of norms, not a single norm. Moreover, it is a term in regular lawyers' usage not necessarily implying what " basic
norm " implies. Moreover, the import of " legal-logical " suggests

that the " basic norm " is a logical principle (which it is not and which Kelsen also denies that it is), and that subordinate norms also can be derived from it through logical procedures (which they cannot, and which Kelsen also denies that they can). If, as seems the case, all of these cardinal terms for Kelsen's most cardinal ideas are inapt in different ways for conveying what he has in mind, the possibility must be left open that what Kelsen himself has in mind may also be not very clear, and may in particular embrace, without adequate articulation, different entities serving various functions. Our other questions will offer much support to this possibility. B. Does Kelsen o/er the " basic norm " as a device whereby jurisprudents can comprehend a legal order as a whole, that is, as an intellectual construct to aid cognition? Or does he ofler it as the Ursprungsnorm in which lawyers are to find the source of validity of all the norms of a legal system? To use another of Kelsen's pairs, is its nature " legal-logical " (" transcendentallogical ") or is it " legal "? Is it his view, consequentially on this

that the "basic norm " is a part of a legal order (which location I here dub " intrasystemic "), the apex as it were of the hierarchy of legal norms? Or is it his view that the " basic norm " is not a part of the legal order (which location I here dub " extrasystemic "), but is merely a proposition presupposed by the legal order directing us to obey " the constitution in the legal sense "? (The latter, rather than the " basic norm," would then appear to
26

See, for example, General Theory, p. 396; Rechtslehre (1960), pp. 9, 47.

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be the norm or complex of norms which is at the apex of the hierarchy of legal norms.) Even in his early works Kelsen can be found to have declared that " the basic norm does not stand inside the system of positive legal propositions," 27 and that because the basic norm " is not created in the legal procedure," it " is valid not as a positive legal norm." 28 Yet from then up to the present he has regularly attributed functions to the basic norm which implied that this norm was a part of the respective legal order. He has kept on saying that this norm brings about the unity of the legal system,2 9 not merely of the legal scholar's cognition of the legal system. He has said that the hierarchy of legal norms " runs into the basic norm," and that this basic norm " sets up . . a law-creating organ." 10 The norms of a legal order cannot comfortably run into a mere thought-construct of the legal scholar, and it would be very quaint for a thought-construct to set up a law-creating organ. And the fact that the later Kelsen found it necessary to repudiate the idea that his theory gives to jurisprudents normcreating power, suggests that he too has felt discomfort at the implications of his own language.31 Moreover, unless Kelsen means to say that his " basic norm is intrasystemic, despite the fact that he explicitly insists that it is extrasystemic, what sense does it make for him to assert repeatedly that it is the " highest norm " of a normative system? 2 We can speak of something being higher or lower than something else only when the entities thus compared belong to the same or a parallel order. So that unless Kelsen's hierarchy of norms represents something non-legal altogether, we must apparently assume that his " basic norm " is part of the hierarchy of legal norms, that is, intrasystemic. Indeed in the very same sentence he also says it is the " last reason of validity within the normative system." 83 A goodly part of the controversies in this matter turn on whether we take the " basic norm " to mean what is implied in the operations which Kelsen purports to execute with it. (Judging from these, it would appear to be intrasystemic, and its content socially conditioned.) Or whether we are to take seriously Kelsen's explicit assertions about it, notably about its location and See Staatslehre, p. 104. Rechtslehre (1960), p. 66. Staatslehre, p. 84. 80 Ibid. p. 249. 81 Cf. also General Theory, p. 113, where Kelsen is concerned to insist that the various norms of a " dynamic " system, such as a legal order, " cannot be obtained from the basic norm by any intellectual operation." 32 See General Theory, p. 111. 33See above, note 8. Emphasis here is supplied.
27

25 29

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content.3 4 (These would make it extrasystemic and not socially determined.) Is Kelsen to be read subject to the maxim plus valet agere quam dicere? A particular difficulty in this matter seems to spring from the fact that in his earlier writings Kelsen (as he himself belatedly recognised in 1960) long failed to make a clear distinction between a proposition about law and a legal norm (or proposition of law), both of which he often ran together in the term " Rechtssatz." " And one disastrous effect of this, of which many confusing and wide-ranging implications still persist despite his peccavi, is his mixing up of the respective tasks of the lawyer and the jurisprudent theoretician."6 C. What is the precise import of Kelsen's formulation of the basic norm? Is it intended to express a uniform basic norm for all legal orders (e.g., " The constitution in the legal sense ought to be obeyed.") (Here called " Version No. I ")? Or is it intended merely as a statement matrix with a blank to be diferently filled in for each legal order? In the latter case-Is it of the pattern-" The constitution in the legal sense of-(Instruction: Here insert " Legal Order A," or " Legal Order B," etc.) ought to be obeyed." (Here called Version No. II)? Or is it of the pattern " Norms-(Instruction: Here incorporate the norm or norms which make up the constitution of the particularLegal Order A, or B, etc., in question) ought to be obeyed" (here called Version No. III)?" H. L. A. Hart's comment, that " Kelsen's basic norm has in a 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 a needless " reduplication " of the " constitution " of the legal order in question seems absolutely correct as to Version III, since this really identifies the " basic norm " with the " constitution " of
34

H. Ofstad, " The Descriptive Definition of the Concept 'Legal Norm' . " (1950) Theoria, Vol. 16, pt. ii, 118 at p. 121, who observes that on certain

matters " it is not excluded that the author may have thought clearly what
he only expressed badly."
35 See the footnote admission on the capital point in Rechtslehre (1960), p. 83.

36

The distinction was left confused even in General Theory, where he still uses language which fails to discriminate clearly between a proposition of law and a proposition about law. Cf. M. D. Golding, article cited above, note 21 at p. 360. 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 of positive law has employed at all times." 37 Using the substance of Kelsen's abbreviated form of the basic norm from Rechtslehre (1960), p. 204: "One ought to behave as the constitution prescribes." The formula, as it stands, may represent an identical legal norm for all legal orders, or it may be intended as, " One ought to behave as the constitution of . . . prescribes," representing a kind of matrix of the basic norm, in which the blank would be filled in separately for each legal order, of France, or Austria or the United Kingdom, etc. Still a third possibility as we shall see is that what are incorporated into the blank are

the actual provisions of the " constitution " of each legal order.

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MYSTERY

AND

MYSTIQUE IN THE BASIC NORM

47

the given legal order; but only qualifiedly so as against Versions I and II. For under these versions Kelsen could show a kind of
aesthetic " need " for a " basic norm " in order to cognise the

various national legal orders as existing under an assumed " world legal order." D. What are the phenomena by reference to which the contents of the basic norm, and in particular those attributing normcreating competence, are determined? Are they exclusively excistential 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 norm implied in, or in some way to be deduced from, the existing norms of the particularlegal order? If the last, then how is this possible in view of the fact that the " legal order " can (ex hypothesi Kelseniensi) only be identified by reference to its basic norm? Kelsen's requirement for a legal system that it shall " by and
large " be
"

efficacious " points to the first alternative,38 whereas

his conception of the basic norm as a presupposed or (possibly) a hypothetical norm 39 may point to the second alternative. This alternative was perhaps best expressed by Ilmar Tammelo in 1948, when he argued that the " basic norm " is a kind of norm " which is implicitly given in the texts of the statutes, and the forms of expression of customary law, and can be construed out of the elaboration of the positive law materials." 40 And Kelsen apparently thought in 1960 that this possibility was important
enough to warrant an express rejection of it.
41

If this rejection

were final then there would be left only the possibility of determination by factual phenomena or by non-legal normative judgments or both, as Lauterpacht and Hart, as well as this writer, have argued. Further questions would then present themselves
about the " purity " of Kelsen's method.

E. What precisely does Kelsen mean by saying that the basic

norm is a
"

hypothesis " or that it is " hypothesised " or " hypo-

thetical "? Are these the same thing or are they related but not identical notions? Or are they the same notion applied to difJerent entities (i.e., " basic norm " in two senses)? Or both of these? If Kelsen's " basic norm " is literally a hypothesis, then it cannot strictly speaking be a norm. It may be permissible to
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 as the valid constitution of a particular state. This norm may be formulated as follows: Men ought to behave in conformity with a legal order only if this legal order as a whole is effective." 30 See, e.g., Rechtslehre (1960), pp. 9, 46 et seq.
'5

40 L. Tammelo, Drei rechtsphilosophische Aufsdtze, (1948, author's transl.), p. 13.

The possibility is also referred to in Stone, Province (1946), p. 106, along with 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 however tentative is still a thesis, and is certainly not a " norm " in any of Kelsen's senses of something prescriptive, or a " depsychologised command," 42 or a proposition with an imperative or prescriptive import. Yet we are prevented from dismissing this difficulty as a mere lapsus linguae by the fact that in the very context Kelsen describes the " basic norm " of a national legal order as a hypothesis " expressed in the form of a legal norm." 4 Admittedly what he may mean by these words may be what Felix Kaufmann called a " positivity criterion," and such a criterion may conceivably not be a norm at all. 44 But that still leaves Kelsen's insistence that it is both a hypothesis and a norm as a chronic focus of confusion. If, on the other hand, we adopt the interpretation that Kelsen's "basic norm " is a hypothesised (or hypothetical) norm, this too presents problems. If the analogy for legal science is to the hypothesis of a natural science, should not the basic norm of a given legal order cease to be hypothetical once it is proved tenable? If, on the other hand, this hypothetical character is meant to be analogous to the axiomatic principles of natural science, Kelsen's desire to insist that other norms cannot be deduced from the basic norm 45 seems out of place. For it is the function of such axioms at least to serve as major premises in deductive systems. F. What quite does Kelsen mean when he says that the validity of the basic norm of a legal order is presupposed? Does he mean that the validity of this norm has still to be established, but must be established by reference to some higher norms which are not the concern of the lawyer or jurisprudent? Or does he mean that the validity of this norm has still to be established, but must be established by reference to criteria which may not be norms at all, but rather some kind of facts which again would not be the concern of the lawyer or jurisprudent? Both alternatives, while they might not be inconsistent with any technical Kelsenite doctrine, seem entirely at odds, as this writer pointed out in 1946, with the Kelsenite pretension that sociological jurisprudence (and presumably also the theory of justice) depend on the conclusions of the pure theory of law,
42

See General Theory, p. 35.

See ibid., p. 116. Moreover, of course, the basic norm is not sanctionstipulating, in the sense in which, at moments of full advertence, Kelsen lays this 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, " imperfect ") legal norm. Cf. M. P. Golding, article cited above, note 21 at 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.
43

JAN. 1963

MYSTERY AND

MYSTIQUE IN

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49

rather than vice versa. The efficaciousness of the norms of a legal order which he admits to be required for " the validity " of the order would seem to make sociological inquiry almost the preIn fact, of course, such a rivalry for ordinated discipline. preordination is vain. Each discipline presupposes the other in certain respects and depends upon it in others. A related problem is the sense in which it is proper to speak of 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.4 Clearly these senses must be different from the ordinary one in which Kelsen speaks of a norm of a legal system as being valid because it is made conformably to the " basic norm." The " basic norm " cannot be " the reason " for its own validity. And if there are criteria by reference to which this " validity " may be judged, they are not lawyers' or jurisprudents' business, nor therefore is " validity " in this sense. This is perhaps what Kelsen means to convey when saying its " validity " is "presupposed." But even with this allowance it still seems an oddity to speak of the " validity " of " the legal order," assuming this to be a self-contained order, and not one subordinate to another.4 7 In any strict Kelsenite sense one should say that a legal order either exists, or it does not exist, and not that is " valid " or " invalid." But perhaps what Kelsen means is only that the legal order which has a " basic norm " which is " valid," in some sense legally and jurisprudentially irrelevant, is a valid legal order. And perhaps all this is but an appropriately obscure example of the contemporary juristic relevance of the adage, veritas norma sua et falsi. G. What is the bearing of Kelsen's purity postulate on his idea of the basic norm? Is the method of cognition of the basic norm intended to be " pure "? Or does Kelsen's hankering to keep the basic norm " outside " the legal system imply that the cognition of it is also methodologically outside the competence of the pure theorist of law? The first alternative must be rejected. Obviously the task of cognising the basic norm is different toto coelo from that which concerns its subordinate norms. Yet the second alternative is also doubtful. The basic norm appears to be eminently a concern with which Kelsen's Pure Theory of Law has struggled. Perhaps the escape from this dilemma is to say that there is no cognising of the basic norm at all, and that therefore for Kelsen the question of the application of his purity postulate does not here arise at all.
46

47

e.g., in Rechtslehre (1960), p. 219. Kelsen's statements about the meaning of the word "validity," e.g., in General Theory, pp. 30, 39 and 155, are not very helpful. To speak of " specific existence " and "binding force " of norms is to illuminate
obscurus per obscuriorem. Cf. M. P. Golding, article cited above, note 21

at p. 368.

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But in that case the Kelsenite theory of law could either never have an application to any actual system of law, or it would have to " choose " a basic norm to be presupposed by lawyers or jurisprudents, through a " Gliicksfall der Intuition," an unreasonedeven-when-apt guess at it. But the latter is scarcely possible. The act of presupposing a " basic norm " is, it is true, an act of will, and not cognitive; yet the search for what is to be presupposed, or is presupposable, seems incorrigibly a matter of cognition, involving method in thinking. V The questions above posed do not exhaust the mysteries of Kelsen'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 writer tends to think, he is confident that sufficient of them are so to show that intellectual traffic along this road will not get anywhere without much radical self-questioning on quite preliminary matters, by those who are eager to debate the final ones. Pending this, even amid Kelsen's most attractive polemics about these final matters, we should remember that it is precisely Kelsen's own writings which are the source of the more basic confusions. We said in opening that our design in this paper was not to take substantive issue with Kelsen's thought. As to this, the present writer has already taken his main positions in The Province and Function of Law, and these will be elaborated elsewhere in the light of Kelsen's later works. Nor is it even necessary to the present purpose that Kelsen should himself make the choices which are essential if the intellectual traffic blocked and snarled around some of his central notions is to make further progress. It will be sufficient if scholars, who have hitherto striven conscientiously to break through, should find (as we have done) that the answerless questions which we have raised help to clear our minds as to why the strivings are so often vain. If we can then explore each of the possibilities raised by our questions, without too much confusion and cross-purposes, all the better. Yet, also, if we should decide that even this is an unpromising venture, the frustrations of trying minutely to analyse what is still inchoate may end, and energies turned to better purposes.
JULIUS STONE.*

* B.A.,

D.C.L., LL.M., S.J.D.; Challis Professor of Jurisprudence and International Law, University of Sydney.