HANS KELSEN

The Dynamic Aspect of Law[1]

THE REASON FOR THE VALIDITY OF A NORMATIVE ORDER: THE BASIC NORM

THE MEANING OF THE SEARCH FOR
THE REASON FOR VALIDITY

If the law as a normative order is conceived as a system of norms that regulates the behavior of men, the question arises: What constitutes the unity of a multitude of norms-why does a certain norm belong to a certain order? And this question is closely tied to the question: Why is a norm valid, what is the reason for its validity?

A norm referring to the behavior of a human being as "valid" means that it is binding-that an individual ought to behave in the manner determined by the norm. It has been pointed out in an earlier context that the question why a norm is valid, why an individual ought to behave in a certain way, cannot be answered by ascertaining a fact, that is, by a statement that something is; that the reason for the validity of a norm cannot be a fact. From the circumstance that something is cannot follow that something ought to be; and that something ought to be, cannot be the reason that something is. The reason for the validity of a norm can only be the validity of another norm. A norm which represents the reason for the validity of another norm is figuratively spoken of as a higher norm in relation to a lower norm. It looks as if one could give as a reason for the validity of a norm the circumstance that it was established by an authority, human or divine; for example, the state­ment: "The reason for the validity of the Ten Commandments is that God Jehovah issued them on Mount Sinai"; or: "Men ought to love their enemies, because Jesus, Son of God, issued this command in his Sermon on the Mount." But in both cases the reason for the validity is not that God or his son issued a certain norm at a certain time in a certain place, but the tacitly presupposed norm that one ought to obey the commands of God or his son. To be true: In the syllogism whose major premise is the ought-statement asserting the validity of the higher norm: "One ought to obey God's commands," and whose conclusion is the ought-statement as­serting the validity of the lower norm: "One ought to obey God's Ten Commandments," the assertion that God had issued the Ten Commandments, an "is-statement," as the minor premise is an essential link. The major premise and the minor premise are both conditions of the conclusion. But only the major premise, which is an ought-statement, is the conditio per quam in relation to the conclusion, which is also an ought-statement; that is, the norm whose validity is stated in the major premise is the reason for the validity of the norm whose validity is stated in the conclusion. The is statement func­tioning as minor premise is only the conditio sine qua non in relation to the conclusion; this means: The fact whose existence is asserted in the minor premise is not the reason for the validity of the norm whose validity is asserted in the conclusion.

The norm whose validity is stated in the major premise ("One ought to obey God's commands") is included in the supposition that the norms, whose reason for validity is in question, originate from an authority, that is, from somebody competent to create valid norms: this norm bestows upon the norm-creating personality the "authority" to create norms. The mere fact that somebody commands something is no reason to regard the command as a valid norm, a norm binding the individual at whom it is directed. Only a competent authority can create valid norms; and such competence can only be based on a norm that authorizes the issuing of norms. The authority authorized to issue norms is subject to that norm in the same manner as the individuals are subject to the norms issued by the authority.

The norm which represents the reason for the validity of another norm is called, as we have said, the "higher" norm. But the search for the reason of a norm's validity cannot go on indefinitely like the search for the cause of an effect. It must end with a norm which, as the last and highest, is presupposed. It must be presupposed because it cannot be "posited," that is to say: created, by an authority whose competence would have to rest on a still higher norm. This final norm's validity cannot be derived from a higher norm, the reason for its validity cannot be questioned. Such a presupposed highest norm is referred to in this book as basic norm. All norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order-it is their common reason of validity. The fact that a certain norm belongs to a certain order is based on the circumstance that its last reason of validity is the basic norm of this order. It is the basic norm that constitutes the unity in the multitude of norms by representing the reason for the validity of all norms that belong to this order.

THE REASON FOR THE VALIDITY OF
A LEGAL ORDER

The norm system that presents itself as a legal order has essentially a dynamic character. A legal norm is not valid because it has a certain content, that is, because its content is logically deducible from a presupposed basic norm, but because it is created in a certain way-ulti­mately in a way determined by a presupposed basic norm. For this reason alone does the legal norm belong to the legal order whose norms are created according to this a basic norm. Therefore any kind of content might be law. There is no human behavior which, as such, is excluded from being the content of a legal norm. The validity of a legal norm may not be denied for being (in its content) in conflict with that of another norm which does not belong to the legal order whose basic norm is the reason for the validity of the norm in question. The basic norm of a legal order is not a material norm which, because its content is regarded as imme­diately self-evident, is presupposed as the highest norm and from which norms for human be­havior are logically deduced. The norms of a legal order must be created by a specific process. They are posited, that is, positive, norms, elements of a positive order. If by the constitution of a legal community is understood the norm or norms that determine how (that is, by what organs and by what procedure-through legislation or custom) the general norms of thelegal order that constitute the community are to be created, then the basic norm is that norm which is presupposed when the custom through which the constitution has come into existence or the constitution-creating act consciously per­formed by certain human beings, is objectively interpreted as a norm-creating fact; if, in the latter case, the individual or the assembly of in­dividuals who created the constitution on which the legal order rests, are looked upon as norm-creating authorities. In this sense, the basic norm determines the basic fact of law creation and may in this respect be described as the con­stitution in a logical sense of the word (which will be explained later) in contradistinction to the constitution in the meaning of positive law. The basic norm is the presupposed starting point of a procedure: the procedure of positive law creation. It is itself not a norm created by custom or by the act of a legal organ; it is not a positive but a presupposed norm so far as the constitution-establishing authority is looked upon as the highest authority and can therefore not be regarded as authorized by the norm of a higher authority.

If the question as to the reason for the validity of a certain legal norm is raised, then the answer can only consist in the reduction to the basic norm of this legal order, that is, in the assertion that the norm was created-in the last instance-according to the basic norm. In the following pages we would like to consider only a national legal order, that is, a legal order limited in its validity to a specific space, the so-called territory of the state, and which is regarded as "sovereign," that is, as not subordinated to any higher legal order. We shall discuss the problem of the validity of the norms of a national legal order, at first without considering an international legal order superordinated to or included in it.

The question of the reason for the validity of a legal norm belonging to a specific national legal order may arise on the occasion of a coer­cive act; for example, when one individual deprives another of his life by hanging, and now the question is asked why this act is legal, namely the execution of a punishment, and not murder. This act can be interpreted as being legal only if it was prescribed by an individual legal norm, namely as an act that "ought" to be performed, by a norm that presents itself as a judicial decision. This raises the questions: Under what conditions is such an interpretation possible; why is a judicial decision present in this case; why is the individual norm created thereby a legal norm belonging to a valid legal order and therefore ought to be applied? The answer is: Because this individual norm was created in applying a criminal law that contains a general norm according to which (under con­ditions present in the case concerned) the death penalty ought to be inflicted. If we ask for the reason for the validity of this criminal law, then the answer is: The criminal law is valid because it was created by the legislature, and the legislature, in turn, is authorized by the constitution to create general norms. If we ask for the reason of the validity of the constitution, that is, for the reason of the validity of the norms regulating the creation of the general norms, we may, perhaps, discover an older constitution; that means the validity of the existing constitution is justified by the fact that it was created according to the rules of an earlier constitution by way of a constitutional amendment. In this way we even­tually arrive at a historically first constitution that cannot have been created in this way and whose validity, therefore, cannot be traced back to a positive norm created by a legal authority; we arrive, instead, at a constitution that became valid in a revolutionary way, that is, either by breach of a former constitution or for a territory that formerly was not the sphere of validity of a constitution and of a national legal order based on it. If we consider merely the national legal order, not international law, and if we ask for the reason of the validity of the historically first constitution, then the answer can only be (if we leave aside God or "nature") that the validity of this constitution-the assumption that it is a binding norm-must be presupposed if we want to interpret (1) the acts performed according to it as the creation or application of valid general legal norms; and (2) the acts performed in ap­plication of these general norms as the creation or application of valid individual legal norms. Since the reason for the validity of a norm can only be another norm, the presupposition must be a norm: not one posited (that is, created) by a legal authority, but a presupposed norm, that is, a norm presupposed if the subjective meaning of the constitution-creating facts and the subjective meaning of the norm-creating facts established according to the constitution are in­terpreted as their objective meaning. Since it is the basic norm of a legal order (that is, an order prescribing coercive acts), therefore this norm, namely the basic norm of the legal order concerned, must be formulated as follows: Coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe. (In short: One ought to behave as the constitution prescribes.) The norms of a legal order, whose common reason for their validity is this basic norm, are not a complex of valid norms standing coordinatedly side by side, but form a hierarchical structure of super- and subordinate norms. This structure of the legal order will be discussed later.

LEGITIMACY AND EFFECTIVENESS

The function of the basic norm becomes particularly apparent if the constitution is not changed by constitutional means but by revolution; when the existence-that is, the validity-of the entire legal order directly based on the constitution, is in question.

It was said earlier that a norm's sphere of validity, particularly its temporal sphere of validity, may be limited; the beginning and end of its validity may be determined by the norm itself or by a higher norm regulating the creation of the lower one. The norms of a legal order are valid until their validity is terminated according to the rules of this legal order. By regulating its own creation and application, the legal order determines the beginning and end of the validity of the legal norms. Written constitutions usually contain special rules concerning the method by which they can be changed. The principle that a norm of a legal order is valid until its validity is terminated in a way determined by this legal order, or replaced by the validity of another norm of this order, is called the principle of legitimacy.

This principle is applicable to a national legal order with one important limitation only: It does not apply in case of a revolution. A revolution in the broader sense of the word (that includes a coup d'êtat) is every not legitimate change of this constitution or its replacement by an other constitution. From the point of view of legal science, it is irrelevant whether this change of the legal situation has been brought about by the application of force against the legitimate government or by the members of that government themselves, whether by a mass movement of the population or by a small group of individuals. Decisive is only that the valid constitution has been changed or replaced in a manner not prescribed by the constitution valid until then. Usually a revolution abolishes only the old constitution and certain politically important statutes. A large part of the statutes created under the old constitution remains valid, as the saying goes; but this expression does not fit. If these statutes are to be regarded as being valid under the new constitution, then this is possible only because they have been validated expressly or tacitly by the new constitution. We are con­fronted here not with a creation of new law but with the reception of norms of one legal order by another; such as the reception of the Roman Law by the German Law. But such reception too is law creation, because the direct reason for the validity of the legal norms taken over by the new revolutionary established constitution can only be the new constitution. The content of these norms remains unchanged, but the reason for their validity, in fact the reason for the validity of the entire legal order, has been changed. As the new constitution becomes valid, so simultaneously changes the basic norm, that is, the presupposition according to which are interpreted as norm-creating and norm-applying facts the constitution-creating fact and the facts established according to the constitution. Suppose the old constitution had the character of an absolute monarchy and the new one of a parliamentary democracy. Then the basic norm no longer reads: "Coercive acts ought to be carried out under the conditions and in the manner as determined by the old, no longer valid, constitution," and hence by the general and individual norms created and ap­plied by the constitutionally functioning monarch and the organs delegated by him; instead, the basic norm reads: "Coercive acts ought to be carried out under the conditions and in the manner determined by the new constitution," and hence by the general and individual norms created and applied by the parliament elected according to that constitution and by the organs delegated in these norms. The new basic norm does not make it possible-like the old one-to regard a certain individual as the absolute mon­arch, but makes it possible to regard a popularly elected parliament as a legal authority. According to the basic norm of national legal order, the government which creates effective general and individual norms based on an effective constitu­tion is the legitimate government of the state.

The change of the basic norm follows the change of the facts that are interpreted as creating and applying valid legal norms. The basic norm refers only to a constitution which is actually established by legislative act or custom, andis effective. A constitution is "effective" if the norms created in conformity with it are by and large applied and obeyed. As soon as the old constitution loses its effectiveness and the new one has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by pre­supposing the new one. The statutes issued un­der the old constitution and not taken over are no longer regarded as valid, and the organs au­thorized by the old constitution no longer as competent. If the revolution is not successful there would be no reason to replace the old basic norm by a new one. Then, the revolution would not be regarded as procedure creating new law, but-according to the old constitution and the criminal law based on it and regarded as valid-would be interpreted as high treason. The principle applied here is the principle of effectiveness. The principle of legitimacy is lim­ited by the principle of effectiveness.

VALIDITY AND EFFECTIVENESS

This limitation reveals the repeatedly emphasized connection (so important for a theory of positive law) between the validity and the effec­tiveness of law. The correct determination of this relationship is one of the most important and at the same time most difficult problems of a positivistic legal theory. It is only a special case of the relationship between the "ought" of the legal norm and the "is" of natural reality. Because the act by which a positive legal norm is created, too, is an "is-fact" (German: Seinstatsache) just as the effectiveness of the legal norm. A positivistic legal theory is faced by the task to find the correct middle road between two extremes which both are untenable. The one extreme is the thesis that there is no connec­tion between validity as something that ought to be and effectiveness as something that is; that the validity of the law is entirely independent of its effectiveness. The other extreme is the thesis that validity and effectiveness are identical. An idealistic theory of law tends to the first solution of this problem, a realistic theory to the second. The first is wrong for it is undeniable that a legal order in its entirety, and an individual le­gal norm as well, lose their validity when they cease to be effective; and that a relation exists between the ought of the legal norm and the is of physical reality also insofar as the positive legal norm, to be valid, must be created by an act which exists in the reality of being. The second solution is wrong because it is equally un­deniable that there are many cases-as has been shown before-in which legal norms are regarded as valid although they are not, or not yet, effective. The solution proposed by the Pure Theory of Law is this: Just as the norm (accord­ing to which something ought to be) as the meaning of an act is not identical with the act (which actually is), in the same way is the validity of a legal norm not identical with its effec­tiveness; the effectiveness of a legal order as a whole and the effectiveness of a single legal norm are-just as the norm-creating act-the condition for the validity; effectiveness is the condition in the sense that a legal order as a whole, and a single legal norm, can no longer be regarded as valid when they cease to be effec­tive. Nor is the effectiveness of a legal order, any more than the fact of its creation, the reason for its validity. The reason for the validity-that is, the answer to the question why the norms of this legal order ought to be obeyed and applied-is the presupposed basic norm, according to which one ought to comply with an actually established, by and large effective, con­stitution, and therefore with the by and large effective norms, actually created in conformity with that constitution. In the basic norm the fact of creation and the effectiveness are made the condition of the validity-"effectiveness" in the sense that it has to be added to the fact of creation, so that neither the legal order as a whole nor the individual legal norm shall lose their validity. A condition cannot be identical with that which it conditions. Thus, a man, in order to live, must have been born; but in order that he remain alive other conditions must also be fulfilled, for example, he must receive nutrition. If this condition is not fulfilled, he will lose his life. But life is neither identical with birth nor with being nourished.

In the normative syllogism leading to the foundation of the validity of a legal order, the major premise is the ought-sentence which states the basic norm: "One ought to behave according to the actually established and effective constitution"; the minor premise is the is-sentence which states the facts: "The constitution is actually established and effective"; and the conclusion is the ought-sentence: "One ought to behave according to the legal order, that is, the legal order is valid." The norms of a positive legal order are valid because the funda­mental rule regulating their creation, that is, thebasic norm, is presupposed to be valid, not because they are effective; but they are valid only as long as this legal order is effective. As soon as the constitution loses its effectiveness, that is, as soon as the legal order as a whole based on the constitution loses its effectiveness, the legal order and every single norm lose their validity.

However, a legal order does not lose its validity when a single legal norm loses its effectiveness. A legal order is regarded as valid if its norms are by and large effective (that is, actually applied and obeyed). Nor does a single legal norm lose its validity if it is only exceptionally ineffective in single cases. As mentioned in an­other connection, the possibility of an antagonism between that which is prescribed by a norm as something that ought to be and that which actually happens must exist; a norm, pre­scribing that something ought to be, which, as one knows beforehand must happen anyway ac­cording to a law of nature, is meaningless-such a norm would not be regarded as valid. On the other hand, a norm is not regarded as valid which is never obeyed or applied. In fact, a legal norm may lose its validity by never being applied or obeyed-by so-called desuetude. Desue­tudo may be described as negative custom, and its essential function is to abolish the validity of an existing norm. If custom is a law-creating fact at all, then even the validity of statutory law can be abolished by customary law. If effec­tiveness in the developed sense is the condition for the validity not only of the legal order as a whole but also of a single legal norm, then the law-creating function of custom cannot be excluded by statutory law, at least not as far as the negative function of desuetudo is concerned.

The described relation between validity and effectiveness refers to general legal norms. But also individual legal norms ( judicial decisions, administrative decrees) that prescribe an individual coercive act lose their validity if they are permanently unexecuted and therefore ineffective, as has been shown in the discussion of a conflict between two legal decisions.

Effectiveness is a condition for the validity-but it is not validity. This must be stressed because time and again the effort has been made to identify validity with effectiveness; and such identification is tempting because it seems to simplify the theoretical situation. Still, the effort is doomed to failure, not only because even a partly ineffective legal order or legal norm may be regarded as valid, and an absolutely effective norm which cannot be violated as invalid because not being regarded as a norm at all; but particularly for this reason: If the validity, that is, the specific existence of the law, is considered to be part of natural reality, one is unable to grasp the specific meaning in which the law ad­dresses itself to reality and thereby juxtaposes itself to reality, which can be in conformity or in conflict with the law only if reality is not identical with the validity of the law. Just as it is im­possible in determining validity to ignore its re­lation to reality, so it is likewise impossible to identify validity and reality. If we replace the concept of reality (as effectiveness of the legal order) by the concept of power, then the problem of the relation between validity and effec­tiveness of the legal order coincides with the more familiar problem of the relationship between law and power or right and might. And then, the solution attempted here is merely the scientifically exact formulation of the old truism that right cannot exist without might and yet is not identical with might. Right (the law), according to the theory here developed, is a certain order (or organization) of might.