A Little Help from Philosophy: Vaihinger’s “As-If” approach

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Legal Validity and the Positive Law Perspective

Kelsen’s theory of Law is a theory about the legal knowledge, the object being the norm itself. In order to know and define what a legal norm is, we must isolate it from any external element which we normally would associate with it, namely, justice, efficacy, sociological aspects, as well as from the disciplines that could somehow be related, such as sociology, psychology or ethics. Surely the field of Law involves all those aspects in its everyday practice, but the point is that those elements must be excluded from the study and comprehension of law itself. Concerning Ethics specifically, Kelsen insists that “the purity of the theory is to be secured against the claims of the natural law theory, which… takes legal theory out of the realm of positive legal norms and into the realm of ethico-political postulates”57. Thus, concerning the definition of Law, Kelsen develops a particular approach to the investigation, turning the question to: “How is positive law qua object of cognition, qua object of cognitive legal science, possible?”, which is a very Kantian oriented perspective that marks one of Kelsen’s most important and famous works, the  Professor Stanley Paulson, one of the most important, if not the most important expert of Kelsen’s theory in present times, interprets Kelsen’s aims regarding the nature of that theory as the following: “In putting his transcendental question Kelsen is not asking whether we cognize legal material, whether we know certain legal propositions to be true. Rather, he assumes that we have such knowledge, and is asking how we can have it. To capture something of the peculiarly transcendental twist to Kelsen’s question, we might ask: given that we know something to be true, what presupposition is at work? More specifically, what presupposition is at work without which the proposition that we know to be true could not be true?”
The answer clearly point to Kelsen’s intricate theory of the basic norm, which we shall not discuss in length in this chapter59, but which will nevertheless help us to understand Kelsen’s differentiation between Static and Dynamic principles ruling the normative systems of positivism.

Statics versus Dynamics

Legal positivism identifies the norm with the normative validity, and not with its content. Consider the following passage from Bruno Celano: “According to Kelsen, validity is binding force. A norm has binding force if and only if it ought to be complied with (obeyed). Saying that a norm ought to be obeyed amounts to saying that one ought to behave as the norm prescribes. So, for instance, asserting that the norm ‘Children ought to obey their parents’ is valid amounts to asserting that children ought to do what the norm prescribes them to do. What the norm prescribes them to do is, however, to obey their parents. Asserting that the norm ‘Children ought to obey their parents’ is valid, amounts, therefore, to asserting that children ought to obey their parents. Generally speaking, whoever asserts that a norm ‘Op’, is valid is at the same time asserting that Op, and vice versa (the statement “The norm ‘Op’ is valid” entails – and is entailed by – the statement ‘Op’). On Kelsen’s conception of validity, therefore, asserting that a given norm is valid amounts to (is logically equivalent to) asserting – i.e. iterating, accepting, endorsing, assenting to, the norm itself.

Normative Content and the Natural Law Perspective

Positive Law can fairly be defined as “a system which prescribes the rules of its own development”63. Meanwhile, an even much generalized definition can be traced considering natural Law: “The first and most abstract notion that can be called ‘natural law’ is that human beings are a certain kind of being, and the features of that being should direct our understanding of how human beings should live. This approach implies the existence of some sort of objective moral law knowable through reason. It is implicit in what are perhaps the most basic intuitions giving rise to natural law, namely, the sense that there must be some general standard in light of which it is possible to judge human laws or conventions. The classic instance of this idea is found in Sophocles’ Antigone, in which a sister disobeys a law by burying her brother, and claims a warrant
For the Thomist perspective of natural law, the evidence of a moral oriented principle guiding the creation and justification of the norms is even stronger: “…what to the Thomist is the basic, primary and self-evident principle of the natural law (…) is variously phrased as: follow your nature; act according to your proper end; maintain order; act for your rational end in conformity with your total nature; bring your essential being to completion; follow your rational inclinations; do good and avoid evil (meaning what is good and bad in light of human nature), etc. In other words, act according to reason.” These passages only reinforce the fact of Legal Positivism and Natural law as having a long history of conflict in legal Philosophy. The main argument of Natural law defenders points to the necessity of a moral grounding for the norms: a norm, in order to be valid, must be a fair norm, a quality which is achieved by the derivation from a general principle given by God or Nature or, due to its evidence, by Rationality. This claim covers not only philosophical, but also ideological allegations. It implies that Natural law involves a notion that would never and could never be accepted in the positivist tradition: the subjective and therefore non-scientific notion of belief66 as a criteria for legitimacy, represented by moral principles for acting, when not religious reasons for acting. Therefore, for a Natural lawyer, the only definition of authority will be linked to the normative power emanating from a “superior” abstract and very general principle which will forcedly impose a determined value. Kelsen characterizes Natural Law Theory as the following: “If the ‘nature’ in which the norms of Natural Law are immanent is the nature of man, and if we consider that man’s nature – unlike that of animals – consists in human reason, then Natural Law appears as the Law of Reason. Since reason is the faculty of thought and knowledge, the norms of the Law of Reason present themselves as the meaning of acts of thought: they are not willed norms but thought norms. Now there is such a thing as a merely thought norm (as opposed to a positive norm posited by a real act of will); but it is not the meaning of an act of thought but rather of an act . does not occur in reality but is imagined or thought of in the same way as we can imagine or think of anything which is possible but does not exists in reality.”67

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Table of contents :

1. Introduction
2. The Author and his Theory
2.1 Three Schools of Thought, or: Why Legal Positivism?
2.1.1 Legal Realism
2.1.2 Natural Law Theory
2.1.3 Legal Positivism
2.2 Why Kelsen?
2.2.1 The Historical Context
2.2.2 The Pure Theory of Law (1960)
2.2.3 The General Theory of Norms (1979)
3. Preliminary Notions
3.1 The Notion of Legal Validity
3.1.1 Defining “Legal Norm”
3.1.2 Validity as Existence
3.2 Legal Science and its Object: Hume’s Naturalistic Fallacy
3.2.1 Hume’s Naturalistic Fallacy
3.2.2 The Relations between the Science and its Object
3.3 Legal Conditions
3.3.1 Imperatives and Norms
3.3.2 Causality and Imputation
3.4 Fictions
3.4.1 The Hyerarchy of Norms
3.4.2 The Basic Norm (Grundnorm)
3.5 Normative Conflicts and Logical Contradictions
3.5.1 The Problem of Applicability
3.5.2 Conflicts between Norms
3.5.3 Derogation
3.5.4 Temporality and Efficacy
3.6 Practical Reasoning and the Rule of Inference
3.6.1 Dissipating the Confusion
3.7 Final Remarks on this Topic
4. Legal Positivism: A Defense of the Scientific Method
4.1 Positivism versus Natural Law Theories
4.1.1 Legal Validity and the Positive Law Perspective
4.1.2 Statics versus Dynamics
4.1.3 Normative Content and the Natural Law Perspective
4.2 Understanding the Tension
4.3 Overcoming the Tension
4.4 Final Remarks on this Topic
5. Science and Method: The Naturalistic Fallacy
5.1 David Hume as a Model
5.1.1 The “Ought”
5.1.2 The “Is”
5.2 One Example of the Fallacy: Jørgensen’s Dilemma
5.3 Final Remarks on this Topic
6. The Non-Existence in Legal Science
6.1 Legal Science: Meaning and Particularities
6.1.1 Some Examples
6.1.2 Dichotomies in Kelsen’s Theory
6.2 The Basic Norm as a Scientific Fiction
6.2.1 The Searching for Justification
6.2.2 Understanding the Fiction
6.2.3 A Little Help from Philosophy: Vaihinger’s “As-If” approach
6.3 Where is the Basic Norm?
6.4 Final Remarks on this Topic
7. Normative Conflicts and Temporality in Law
7.1 Norms versus Sentences
7.2 Derogation
7.2.1 The Formulation of the Derogation Norm
7.3 The context of the Normative Conflict
7.3.1 Some Examples
7.4 Retroactivity
7.5 The Basic Norm
7.6 Final Remarks on this Topic
8. The Notion of Practical Reasoning (Part I)
8.1 Introduction
8.2 Understanding Jørgensen’s Dilemma
8.3 First Attempts: Jørgensen and Ross
8.3.1 Jørgensen’s Answer to the Dilemma
8.3.2 Ross’ Answer to the Dilemma
8.4 Kelsen’s Battle against the Dilemma
8.4.1 Correcting Jørgensen
8.4.2 Correcting Ross
8.4.3 Kelsen’s Final Solution
8.5 Any Objections? Von Wright’s Deontic Logic
8.6 Final Remarks on this Topic
9. The Notion of Practical Reasoning (Part II)
9.1 Dialogs about Kelsen’s Solution
9.2 The Dialogical Approach to Logic
9.2.1 Dialog, Validity, Truth and Justification
9.3 The (Dia)logical Tools
9.3.1 Preliminary Notions
9.3.2 Set F Facts and the Problem of Justification
9.3.3 The N Normative System
9.4 The Dialogical System DLLC2
9.5 Jérôme C.’s Guilt and Further Discussions
9.5.1 Jérôme C.’s Example
9.5.2 Further Discussions
9.6 Back to Jørgensen’s Dilemma and Final Remarks
10. Conclusion
Appendix
Bibliography

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