## 1. The Basic Norm




The main challenge for a theory of law, as Kelsen saw it, is to
provide an explanation of legality and the normativity of law, without
an attempt to reduce jurisprudence, or "legal science", to
other domains. The law, Kelsen maintained, is basically a scheme of
interpretation. Its reality, or objectivity, resides in the sphere of
meaning; we attach a legal-normative meaning to certain actions and
events in the world (PT1, 10). Suppose, for example, that a new law is
enacted by the California legislature. How is it done? Presumably, some
people gather in a hall, debate the issue, eventually raise their hands
in response to the question of whether they approve a certain document
or not, count the number of people who say "yes", and then
promulgate a string of words, etc. Now, of course, the actions and
events described here are not the law. To say that the description is
of the enactment of a new law is to interpret these actions and events
in a certain way. But then, of course, the question is why
certain acts or events have such a legal meaning and others
don't?




Kelsen's answer to this question is surprisingly simple: an
act or an event gains its legal-normative meaning by another legal norm
that confers this normative meaning on it. An act can create or modify
the law if it is created in accordance with another,
"higher" legal norm that authorizes its creation in that
way. And the "higher" legal norm, in turn, is legally valid
if and only if it has been created in accord with yet another,
"higher" norm that authorizes its enactment in that
way. In other words: it is the law in the United States that the
California legislature can enact certain types of laws. But what makes
this the law? The California Constitution confers this power on the
state legislature to enact laws within certain prescribed boundaries of
content and jurisdiction. But then what makes the California
Constitution legally valid? The answer is that the legal validity of
the Constitution of California derives from an authorization granted by
the US Constitution. What makes the US Constitution legally valid?
Surely, not the fact that the US Constitution proclaims itself to be
"the supreme law of the land". Any document can say that,
but only the particular document of the US Constitution is actually the
supreme law in the United States.




The problem is that here the chain of authorization comes to an end:
There isn't a higher legal norm that authorizes the enactment of
the (original) US Constitution. At this point, Kelsen famously argued,
one must presuppose the legal validity of the Constitution. At some
stage, in every legal system, we get to an authorizing norm that has
not been authorized by any other legal norm, and thus it has to be
presupposed to be legally valid. The normative content of this
presupposition is what Kelsen has called the basic norm. The basic norm
is the content of the presupposition of the legal validity of the
(first, historical) constitution of the relevant legal system (GT,
110-111).




 As Kelsen saw it,
there is simply no alternative. More precisely, any alternative would
violate David Hume's injunction against deriving an
"ought" from an "is". Hume famously argued that
any practical argument that concludes with some prescriptive statement,
a statement of the kind that one ought to do this or that, would have
to contain at least one prescriptive statement in its premises. If all
the premises of an argument are descriptive, telling us what this or
that is the case, then there is no prescriptive conclusion that can
logically follow. Kelsen took this argument very seriously. He observed
that the actions and events that constitute, say, the enactment of a
law, are all within the sphere of what "is" the case, they
are all within the sphere of actions and events that take place in the
world. The law, or legal norms, are within the sphere of
"ought", they are norms that purport to guide conduct.
Thus, to get an "ought" type of conclusion from a set of
"is" premises, one must point to some "ought"
premise in the background, an "ought" that confers the
normative meaning on the relevant type of "is". Since the
actual, legal, chain of validity comes to an end, we inevitably reach a
point where the "ought" has to be presupposed, and this is
the presupposition of the basic norm.




 The idea of the
basic norm serves three theoretical functions in Kelsen's theory
of law: The first is to ground a non-reductive explanation of legal
validity. The second function is to ground a non-reductive explanation
of the normativity of law. The third function is to explain the
systematic nature of legal norms. These three issues are not
un-related.




Kelsen rightly noticed that legal norms necessarily come in systems.
There are no free-floating legal norms. If, for example, somebody
suggests that "the law requires a will to be attested by two
witnesses", one should always wonder which legal system is talked
about; is it US law, Canadian law, German law, or the law in some other
legal system? Furthermore, legal systems are themselves organized in a
hierarchical structure, manifesting a great deal of complexity but also
a certain systematic unity. We talk about Canadian law, or German law,
etc., not only because these are separate countries in which there is
law. They are also separate legal systems, manifesting a certain
cohesion and unity. This systematic unity Kelsen meant to capture by
the following two postulates:


1. Every two norms that ultimately derive their validity from one
basic norm belong to the same legal system.
2. All legal norms of a given legal system ultimately derive their
validity from one basic norm.




Whether these two postulates are actually true is a contentious
issue. Joseph Raz argued that they are both inaccurate, at best. Two
norms can derive their validity from the same basic norm, but fail to
belong to the same system as, for example, in case of an orderly
secession whereby a new legal system is created by the legal
authorization of another. Nor is it necessarily true that all the
legally valid norms of a given system derive their validity from the
same basic norm (Raz 1979, 127-129).




Be this as it may, even if Kelsen erred about the details of the unity
of legal systems, his main insight remains true, and quite
important. It is true that law is essentially systematic, and it is
also true that the idea of legal validity and law's systematic nature
are very closely linked. Norms are legally valid within a given
system, they have to form part of a system of norms that is in force
in a given place and time.




This last point brings us to another observation that is central to
Kelsen's theory, about the relations between legal validity and, what
he called, "efficacy". The latter is a term of art in
Kelsen's writings: A norm is efficacious if it is actually (generally)
followed by the relevant population. Thus, "a norm is considered
to be legally valid", Kelsen wrote, "on the condition that
it belongs to a system of norms, to an order which, on the whole, is
efficacious" (GT, 42). So the relationship here is this:
efficacy is not a condition of legal validity of individual norms. Any
given norm can be legally valid even if nobody follows it. (e.g. think
about a new law, just enacted; it is legally valid even if nobody has
yet had an opportunity to comply with it.) However, a norm can only be
legally valid if it belongs to a system, a legal order, that is by and
large actually practiced by a certain population. And thus the idea of
legal validity, as Kelsen admits, is closely tied to this reality of a
social practice; a legal system exists, as it were, only as a social
reality, a reality that consists in the fact that people actually
follow certain norms.




What about the basic norm, is efficacy a condition of its validity?
One might have thought that Kelsen would have opted for a negative
answer here. After all, the basic norm is a presupposition that is
logically required to render the validity of law intelligible. This
would seem to be the whole point of an anti-reductionist explanation
of legal validity: since we cannot derive an "ought" from
an "is", some "ought" must be presupposed in
the background that would enable us to interpret certain acts or
events as having legal significance. Kelsen, however, quite explicitly
admits that efficacy is a condition of the validity of the basic norm:
A basic norm is legally valid if and only if it is actually followed
in a given population. In fact, as we shall see below, Kelsen had no
choice here. And this is precisely why at least one crucial aspect of
his anti-reductionism becomes questionable.


## 2. Relativism and Reduction




Common wisdom has it that Kelsen's argument for the
presupposition of the basic norm takes the form of a Kantian
transcendental argument. The structure is as follows:


1. *P* is possible only if *Q*
2. *P* is possible (or, possibly *P*)
3. Therefore, *Q*.




In Kelsen's argument, *P* stands for the fact that legal
norms are "ought" statements , and *Q* is the
presupposition of the basic norm. In other words, the necessary
presupposition of the basic norm is derived from the possibility
conditions for ascribing legal significance to actions and events. In
order to interpret an action as one of creating or modifying the law,
it is necessary to show that the relevant legal significance of the
act/event is conferred on it by some other legal norm. At some point,
as we have noted, we necessarily run out of legal norms that confer
the relevant validity on law creating acts, and at that point the
legal validity has to be presupposed. The content of this
presupposition is the basic norm.




 It would be a
mistake, however, to look for an explanation of Kelsen's argument
in the logic of Kant's transcendental argument. (Kelsen himself
seems to have changed his views about this over the years; he may have
started with a kind of neo-Kantian perspective one can discern in PT1,
and gradually shifted to a Humean version of his main argument, which
is quite evident in GT. However, this is a very controversial issue; for a different view, see Paulson 2013 and Green 2016.) Kant employed a transcendental argument
to establish the necessary presuppositions of some categories and modes
of perception that are essential for rational cognition, or so he
thought. They form deep, universal, and necessary features of human
cognition. Suffice it to recall that it was Hume's skepticism
about knowledge that Kant strove to answer by his transcendental
argument. Kelsen, however, remains much closer to Hume's
skeptical views than to Kant's rationalism. In particular, Kelsen
was very skeptical of any objective grounding of morality, Kant's
moral theory included. Kelsen's view of morality was relativist
all the way down. (More on this, below). Second, and not unrelated, as
we shall see, Kelsen has explicitly rejected the idea that the basic
norm (in law, or of any other normative domain) is something like a
necessary feature or category of human cognition. The presupposition of
a basic norm is optional. One does not have to accept the normativity
of law; anarchism, as a rejection of law's normative validity is
certainly an option, Kelsen maintained. The basic norm is presupposed
only by those who accept the "ought", that is, the
normative validity, of the law. But one is not rationally compelled to
have this attitude:



> 
> 
> The Pure Theory describes the positive law as an objectively
> valid order and states that this interpretation is possible only under
> the condition that a basic norm is presupposed.... The Pure
> Theory, thereby characterizes this interpretation as possible, not
> necessary, and presents the objective validity of positive law only as
> conditional--namely conditioned by the presupposed basic
> norm. (PT2, 217-218)




A comparison to religion, that Kelsen himself offered, might be
helpful here. The normative structure of religion is very similar to
that of law. It has the same logic: religious beliefs about what one
ought to do ultimately derive from one's beliefs about
God's commands. God's commands, however, would only have
normative validity for those who presuppose the basic norm of their
respective religion, namely, that one ought to obey God's
commands. Thus the normativity of religion, like that of the law, rests
on the presupposition of its basic norm. But in both cases, as, in
fact, with any other normative system, the presupposition of the basic
norm is logically required only of those who regard the relevant norms
as reasons for their actions. Thus, whether you actually presuppose the
relevant basic norm is a matter of choice, it is an ideological option,
as it were, not something that is dictated by Reason. Similarly, the
normativity of law, presupposed by its basic norm, is optional:
"An anarchist, for instance, who denied the validity of the
hypothetical basic norm of positive law.... will view its positive
regulation of human relationships... as mere power
relations" (GT, 413).




 Relativism,
however, comes with a price. Consider this question: What is the
content of the basic norm that one needs to presuppose in order to
render positive law intelligible as a normative legal order? The simple
answer is that what one presupposes here is precisely the normative
validity of positive law, namely, the law that is actually practiced by
a certain population. The validity of the basic norm, as we noted
briefly earlier, is conditional on its "efficacy". The
content of the basic norm of any given legal system is determined by
the actual practices that prevail in the relevant community. As Kelsen
himself repeatedly argued, a successful revolution brings about a
radical change in the content of the basic norm. Suppose, for example,
that in a given legal system the basic norm is that the constitution
enacted by Rex One is binding. At a certain point, a *coup
d'etat* takes place and a republican government is
successfully installed. At this point, Kelsen admits, 'one
presupposes a new basic norm, no longer the basic norm delegating law
making authority to the monarch, but a basic norm delegating authority
to the revolutionary government' (PT1, 59).




 Has Kelsen just
violated his own adherence to Hume's injunction against deriving
"ought" from an "is" here? One gets the clear
impression that Kelsen was aware of a serious difficulty in his
position. In both editions of the Pure Theory of Law, Kelsen toys with
the idea that perhaps changes in the basic norms of municipal legal
systems legally derive from the basic norm of public international law.
It is a basic principle of international law that state sovereignty is
determined by actual control over a territory/population (PT1
61-62, though in PT2, 214-215, the idea is presented with greater
hesitation; notably, some commentators argue that Kelsen took the idea of a universal legal order much more seriously than suggested here--see Green 2016). But this led Kelsen to the rather uncomfortable
conclusion that there is only one basic norm in the entire world,
namely, the basic norm of public international law. Be this as it
may, the main worry lies elsewhere. The worry stems from the fact that
it is very difficult, if not impossible, to maintain both a profound
relativist and an anti-reductionist position with respect to a given
normative domain. If you hold the view that the validity of a type of
norms is entirely relative to a certain vantage point--in other
words, if what is involved here is only the actual conduct,
beliefs/presuppositions and attitudes of people--it becomes
very difficult to detach the explanation of that normative validity
from the facts that constitute the relevant point of view (namely, the
facts about people's actions, beliefs, attitudes, etc). This is
basically what was meant earlier by the comment that Kelsen had no
option but to admit that the validity of the basic norm is conditional
on its efficacy. The normative relativism which is inherent in
Kelsen's conception forces him to ground the content of the basic
norm in the social facts that constitute its content, namely, the facts
about actions, beliefs, and attitudes actually entertained by the
population in question. And this makes it very questionable that
reductionism can be avoided. In fact, what Kelsen really offered us
here is an invitation to provide a reductive explanation of the concept
of legal validity in terms of some set of social facts, the facts that
constitute the content of any given basic norm. (Which is precisely the
kind of reduction H.L.A. Hart later offered in his account of the Rules
of Recognition as social rules [see Hart 1961, at p. 105, where
Hart alludes to the difference between his conception of the rules of
recognition and Kelsen's idea of the basic norm.])




 Kelsen's
problem here is not due to the fact that he was a relativist with
respect to every normative system, like morality, religion etc.; it is
not the scope of his relativism that is relevant to the question of
reduction. The problem stems from the fact that Kelsen was quite right
about the law. Legal validity is essentially relative to the social
facts that constitute the content of the basic norm in each and every
legal order. Notice that legal validity is always relative to a time
and place. A law enacted by the California legislature only applies
within the boundaries of the state of California, and it applies during
a certain period of time, after its enactment and until a time when it
is modified or repealed. And we can see why: because legal validity is
determined by the content of the basic norm that is actually followed
in a given society. The laws in UK, for example, are different from
those in the US, because people (mostly judges and other officials)
actually follow different rules, or basic norms, in Kelsen's
terminology, about what counts as law in their respective
jurisdictions. Once Kelsen admits, as he does, that the content of a
basic norm is fully determined by practice, it becomes very difficult
to understand how the explication of legal validity he offers is
non-reductive.


## 3. The Normativity of Law




 Let us now see how
Kelsen thought that the basic norm helps to explain the sense in which
law is a normative domain and what this normativity consists in. The
first and crucial point to realize is that for Kelsen the idea of
normativity is tantamount to a genuine "ought", as it were;
it is a justified demand on practical deliberation. A certain content
is regarded as normative by an agent if and only if the agent regards
that content as a valid reason for action. As Joseph Raz noticed,
Kelsen agrees with the Natural Law tradition in this particular
respect; both assume that the normativity of law can only be explained
as one would explain the normativity of morality, or religion for that
matter, namely, in terms of valid reasons for action (Raz 1979,
134-137; but cf. Paulson 2012). But then, the problem for Kelsen is how
to explain the difference between the normativity of law and that of
morality; if legal "ought" is a genuine
"ought", what makes a legal obligation distinct from a
moral one? Kelsen's answer is that the relevant
"ought" is always relative to a given point of view. Each
and every type of "ought", be it religious, moral or legal,
must presuppose a certain point of view, a point of view which is
constituted by the basic norm of the relevant normative system.




In other words, Kelsen's conception of legal normativity turns
out to be a form of Natural Law completely relativized to a certain
point of view. However, in Kelsen's theory the relevant point of
view is distinctly a legal one, not some general conception of morality
or Reason. That these two basic norms, or points of view, can come
apart, is nicely demonstrated by Kelsen's comment that
"even an anarchist, if he were a professor of law, could describe
positive law as a system of valid norms, without having to approve of
this law" (PT2 218n). The anarchist does not endorse the
legal point of view as one that reflects her own views about what is
right and wrong. Anarchism is understood here precisely as a rejection
of the normative validity of law; however, even the anarchist can make
an argument about what the law in this or that context requires; and
when she makes such an argument, she must presuppose the legal point of
view, she must argue as if she endorses the basic norm of the relevant
legal system. Joseph Raz has called these kinds of statements
"detached normative statements"; the anarchist argues as if
she endorses the basic norm, without actually endorsing it. Another
example that Raz gave is this: suppose that at Catholic priest is an
expert in Jewish Law; the priest can make various interpretative
arguments about what Jewish law really requires in this or that
context. In such a case, the priest must argue as if he endorses the
basic norm of Jewish Law, but of course, being a Catholic, he does not
really endorse it, it does not reflect his own views about what is
right and wrong (Raz 1979, 153-157).




So here is what emerges so far: the concept of normativity, the
sense in which normative content is related to reasons for action, is
the same across all normative domains. To regard something as normative
is to regard it as justified, as a warranted requirement on practical
deliberation. However, the difference resides in the difference in
points of view. Each basic norm determines, as it were, a certain point
of view. So it turns out that normativity (contra Kant) always consists
of conditional imperatives: if, and only if, one endorses a
certain normative point of view, determined by its basic norm, then the
norms that follow from it are reason giving, so to speak. This enables
Kelsen to maintain the same understanding of the nature of normativity
as Natural Law's conception, namely, normativity qua reasons for
action, without having to conflate the normativity of morality with
that of law. In other words, the difference between legal normativity
and, say, moral normativity, is not a difference in normativity (viz,
about the nature of normativity, per se), but only in the relevant
vantage point that is determined by their different basic norms. What
makes legal normativity unique is the uniqueness of its point of view,
the legal point of view, as it were.




 We can set aside
the difficulties that such a view raises with respect to morality.
Obviously, many philosophers would reject Kelsen's view that
moral reasons for action only apply to those who choose to endorse
morality's basic norm (whatever it may be). Even if Kelsen is
quite wrong about this conditional nature of moral imperatives, he may
be right about the law. What remains questionable, however, is whether
Kelsen succeeds in providing a non-reductive explanation of legal
normativity, given the fact that his account of legal validity turned
out to be reductive after all. The trouble here is not simply the
relativity to a point of view; the trouble resides in Kelsen's
failure to ground the choice of the relevant point of view in anything
like Reason or reasons of any kind. By deliberately avoiding any
explanation of what it is that might ground an agent's choice of
endorsing the legal point of view, or any given basic norm, Kelsen left
the most pressing questions about the normativity of law unanswered.
Instead of providing an explanation of what makes the
presupposition of the legal point of view rational, or what makes it
rational to regard the requirements of law as binding requirements,
Kelsen invites us to stop asking.