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Alida Wilson, Joseph Raz on Kelsen's Basic Norm, 27 Am.
J. Juris. 46 (1982)

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 JOSEPH RAZ ON KELSEN'S BASIC NORM

ALIDA WILSON

Throughout his writings Kelsen ignores, rejects, or misrepresents

the most fundamental ideas of Kantian critical idealism and uses
Kantian language imprecisely. Consequently, to start an examina-
tion of Kelsen's basic norm, as Raz does, with references to Kelsen's
use of a Kantian "conceptual framework" or "intellectual tools"
does not clarify the issue.
Raz sees a double function in Kelsen's basic norm i.e., its func-
tion in explaining the identity and unity of a legal order and its
functions in establishing the normativity thereof. I contend that the
basic norm performs a single function which bears on the identity
and unity of an order; but that it altogether fails to establish
"normativity" as understood by Raz. Kelsen's account of legal nor-
mativity, I contend, is purely technical-juristic; there is no "justi-
fied normativity" in Kelsen as Raz claims. Other aspects of Kelsen's
theory examined by Raz and considered here are: (1) the possibility
of a refusal to pre-suppose the basic norm; (2) the need, alleged by
Kelsen at one stage of his work, to see an order as "a meaningful
whole"; (3) the inadmissibility, likewise alleged by him at one
stage, of conflicting norms.
IN DISCUSSING KELSEN'S BASIC NORM Raz' examines what he sees as the
double function of the basic norm i.e., its function in explaining the
identity and unity of a legal order and its function in establishing the
"normativity" of a legal order. In his discussion he appears to me to
misrepresent the real thrust of Kelsen's theory in this aspect. My
contention will be: (i) that the basic norm, for Kelsen, does not
perform a dual function, but a single function only, which bears on
the identity and unity of an order in a sense Raz would admit; but (ii)
that it altogether fails to establish "normativity" as understood by
Raz. Raz2 claims that:
(i) Kelsen uses only the concept of justified normativity. (ii) Accord-
ing to Kelsen an individual can consider a legal system as norma-
tive only if he endorses it as morally good and just. (iii) Legal
theory considers legal systems as normative in the same sense of
"normative" but in a different sense of "consider" which does not
commit it to accepting the laws as just.
My point is that Kelsen, so far from using only the concept of "justi-
fied normativity," committed himself to an account of legal normativ-

1. "Kelsen's Theory of the Basic Norm" in The Authority of Law (Clarendon

Press, 1979), p. 122 ff.
2. Ibid., p. 134.
ALIDA WILSON

ity in purely technical-juristic terms, and on that account has to

struggle throughout his writings to exclude "justified normativity"
from his account of law.
For the initial purposes of my argument I shall take it that Raz's
notion of "justified normativity" is conveyed in (ii) above and shall
defer any discussion of the way in which, by (iii) a sort of double
vision is supposed to be attributed by Kelsen to legal theory. Not
wishing to make a series of negative points, I will not elaborate the
difficulty I find in reconciling, on the one hand, Raz's attribution to
Kelsen of an explanation of the normativity of law independent of its
moral value and, on the other, his attribution to Kelsen's theory of the
concept of justified normativity; yet, to make clear Kelsen's actual
position as I see it, I must begin with a preliminary contention by Raz:
that Kelsen, in order to build a non-metaphysical, value-free theory
explanatory of the normativity and validity of law, has resort to
Kant's critical philosophy to provide him with "the intellectual tools"
and "the conceptual framework" with and within which such a theory
might be founded. 3 I do not, of course, object to the attribution to
Kelsen of the aim to build a value-free theory of law; but, despite
Kelsen's own suggestions, I see no real or effective use by him of
intellectual tools or conceptual framework derived from Kant, or
how, given his approach, there could be such use.
Kant's analysis of our understanding of nature is treated by Kelsen
as if its ideas constituted, on their own, Kant's whole significant
"conceptual framework." In fact, the critical method of Kant's think-
ing is exhibited no less in his moral philosophy than in his account of
our understanding of natural phenomena, and his conclusions in
moral philosophy stand in coherent relation with his view in the
Critique of Pure Reason. It was open to Kelsen to maintain that Kant
made specific mistakes in the moral field; it was misleading to suggest
that, having found the right path about our understanding of phe-
nomena, Kant abandoned this, in some gratuitous way, on turning to
the moral field. Kelsen does suggest this when he says:
...in Kant's practical philosophy . . . metaphysical dualism has
completely invaded the system .... At this point Kant abandoned
his method of transcendental logic .... So it happens that Kant,
whose philosophy of transcendental logic was pre-eminently des-
tined to provide the doctrine for a positivistic legal and political
doctrine,4 stayed as a legal philosopher in the rut of the natural-law
doctrine.

3. Ibid., p. 132.
4. General Theory (1945), p. 444.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

May we then attribute to Kelsen, not something so comprehensive

as a Kantian conceptual framework, but at least, in Joseph Raz's
phrase, "intellectual tools," derived from the study of Kant's analysis
of our knowledge of nature? "Intellectual tools" may be taken over
from a thinker even if one does not take over his entire conceptual
framework. But it is hard to say that Kelsen takes over Kantian
"tools," since he ignores, rejects, or misinterprets the most fundamen-
tal ideas of Critical Idealism. A number of connected elements are
essential to Kant's view of our understanding of nature. Among these
are: the disjunction thing-in-itself/phenomena, the position of the
human mind vis-a-vis each of these, the role assigned to reason in our
understanding of phenomena, and the a priorielements in our under-
standing of them-in particular the categories: the classification of
our judgments into analytic and synthetic, and the basing of the
categories on the possibility of a priori synthetic judgment. Kelsen
rejects these elements either explicitly or implicitly or by ignoring
Kant; as for the last and most important element, though he does not
enter into discussion of this, he moves eventually to a position of
sympathy with an epistemology-that of Hume-which sharply re-
jects the possibility of a priori synthetic judgments.
In his use of the phrase "transcendental-logical condition of experi-
ence" Kelsen might be thought to have the Kantian notion of category
in mind. But the imprecise way in which Kelsen uses this term sug-
gests lack of interest in what Kant really meant by the term. For in
one context the phrase is supposed to convey the character of the
principle of "Zurechnung"; in another context it is applied to the basic
norm. 5 But the basic norm and the principle of Zurechnung are
altogether different and it is not clear in what respect the phrase
"transcendental-logical condition" is applicable to both. When a
writer applies one term to two wholly different objects of thought
without explaining what they have in common, one may suspect that
the term has little precise meaning.
Turning to the basic norm in its own, we see again the vagueness of
what Kelsen meant by "transcendental-logical condition."
...the basic norm ... as a norm presupposed in the foundation
of the validity of positive law, is only the transcendental-logical
condition of this normative interpretation; it does not6perform an
ethical-political, but only an epistemological function

5. "The Pure Theory," Law Quarterly Review (CC, 1934), p. 485; and The
Pure Theory (1967), p. 218.
6. The Pure Theory (1967), ibid.
ALIDA WILSON

By accepting that the basic norm performs "an epistemological func-

tion" when it provides law with an "objective normativity" Raz ac-
cepts Kelsen's parallel between the basic norm and a Kantian category
of the mind: 7 but here again an objection arises.
For Kant it is only in terms of the categories of reason that we
perceive and organize, in daily life and in science, the phenomena
present to us; without these there would be no perceptual wholes, still
less "nature" organized in terms of laws, but merely the unorganized
impressions of sense. There is for Kant a single set of categories that
enter into our understanding of phenomena-not one set permitting
us to understand these in one way, and another permitting us to look
at them in some other way. Let us apply this consideration to the
phenomena which-on Kelsen's notion-we understand as "legal"
because we see them in terms of a Kantian transcendental-logical
condition or category. If it is possible for us to see these as legal only in
terms of the "transcendental-logical condition" or category, it follows,
if Kelsen remains true to Kant, that we can perceive and organize
them only as legal; if we do not do this there will be no organization at
all of the material, nor will any alternative understanding of it-i.e.,
as in terms of "social" or "power" relationships-be possible. But
Kelsen does allow, alongside the legal understanding, that kind of
understanding.
So long as Kelsen equated, as he did for decades, the basic norm
with "transcendental-logical principle of cognition in the Kantian
sense," he was at least purporting to present an approach to the
understanding of law in Kantian terms. But in 1963 he declared that
he had abandoned the notion of the basic norm which he had long
held, as being "not the meaning-content of some act of volition but
pre-supposed in our thinking," and had decided, since a norm must be
the correlate of a will, that "the basic norm is a fictive norm based on
a fictive act of will"; 8 and in 1964 the thought is pursued further with
reference to the idea of Vaihinger that not only "semi-fictions" (fic-
tions not corresponding to reality) but even "full fictions" (internally
self-contradictory fictions) may serve as tools of enquiry. "The accept-
ance of a basic norm . . .not only contradicts reality, in which no

7. Raz, op. cit., p. 133.

8. "In my doctrine the basic norm was always conceived as a norm which was
not the meaning-content of some act of volition but presupposed in our own thinking.
Now . . .I cannot any more abide by this doctrine ... I have abandoned it, seeing
that a norm must be the correlate of a will. My basic norm is a fictive norm based in a
fictive act of volition. Osterreichische Zeitschriftfir offentliches Recht (1963),
pp. 119-120, cited by Alf Ross in Directives and Norms (London, 1968), p. 158.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

such norm exists as the meaning of an actual act of will, but also
contains contradiction within itself"; 9 because (something put very
obscurely in his following words) even a notional norm, on Kelsen's
definition of the term, implies a norm beyond itself, and contradiction
therefore arises between the term "norm" and the predicate "basic."
What merit Vaihinger's doctrine of fictions, as tools of discovery, may
have, and what service it may render as applied .by Kelsen to the
theory of law, need not be discussed here; my point is simply that with
these two statements, Kelsen abandons Kantian ground, completely
and finally.

RAZ ON "KELSEN'S JUSTIFIED NORMATIVITY"

When Raz examines Kelsen's treatment of the normativity of law he

declares (as we have seen):
(i) Kelsen uses only the concept of justified normativity. (ii) Accord-
ing to him an individual can consider a legal system as normative
only if he endorses it as morally just and good. (iii) Legal theory
considers legal system as normative in the same sense of "norma-
tive" but in a different sense of "consider" which does not commit it
to accepting the laws as just.' 0
The word "normative" in (ii) must mean "directive and binding."
The point will then be: an individual will consider a legal system as
binding if he endorses it as morally good and just, but not otherwise; if
he so endorses it, he will not only see it as coercive, but also as creating
obligations, not in an uncommitted way, but as enjoining on him
personally appropriate action. The difficulty here is: this seems to
make the existence of obligations depend upon the view that people
take of the system which demands fulfullment of those obligations, or
their view of particular obligations. This is a conclusion which Kelsen
struggled to avoid in the field of law and which must equally be
resisted by anyone convinced that an obligation, legal or moral, is,
given certain circumstances, incumbent in like degree on all those
finding themselves in those circumstances.
But this difficulty is not pursued by Raz. For him legal theory as
Kelsen conceived it took a dual view of law and saw in it two wholly
different aspects: (1) the jurist-or legal man- may see the laws of a
given system as valid simply in terms of an inner-systemic relation to
the basic norm: he can do this with any system provided general

9. "The Constitutional Function," Neues Forum (1964), pp. 583-6; translated

by lain Stewart in Juridical Review, (1980), Part 2: p. 221 f.
10. Raz, op. cit., pp. 134-5.
ALIDA WILSON

obedience makes it effective; (2) the jurist may also see the laws of a
given system as normative through the eyes of the individual who
finds the system "morally just and good": in this view it is the vision of
the individual which gives meaning for the jurist to the word "norma-
tive" even though the jurist, as such, has no interest in the goodness
and justice of the system. In this Raz seems to me right in respect of
(1), but wholly wrong in attributing (2) to Kelsen's theory. Kelsen-
and the Kelsenian jurist-have no concern to find a formula to bring
within the ambit of juristic theory either the individual-or any group
of individuals-or reaction by either to the goodness and justice of the
law. The notion of "justified normativity" or any demand for accept-
ance of law involves what Kelsen explicity abjures in The Pure The-
ory, namely the "theory of recognition," seen there as illegitimate
syncretism foisting on law elements alien to it.
Positively I would contend, against Raz: (1) that Kelsen as a jurist
has no interest either in the concept of "justified normativity" or that
of "social normativity"; he uses the concept of normativity in a purely
legal-or rather juristic-sense only, as defined by himself; (2) that
Kelsen, in speaking of individuals or groups "considering" a legal
system just or unjust, morally good or bad, is consciously passing
beyond legal science to consider, separately, something that for him is
quite extra-legal; (3) that it is by the very nature of legal science and of
law as Kelsen understands them that normativity cannot be found in
law except in purely legal terms.
These contentions rest on a crucial section of The Pure Theory
(1967 translation) and spell out the implications of Kelsen's declara-
tion there that every legal order which is "by and large" effective is
valid: ". . . according to the Pure Theory of Law, as a positivistic
legal theory, no positive legal order can be regarded as not conforming
with its basic norm and hence as not valid."" The preceding passage,
pruned somewhat of repetition, runs:
the basic norm, presented by the Pure Theory of Law as the
condition for the objective validity of law, establishes the validity
of every positive legal order, that is, of every coercive order created
by acts of human beings and by and large effective .... Every by
and large effective coercive order can be interpreted as an objec-
tively valid normative order."
Effectiveness is, likewise, all-important when we turn to interna-
tional law. The basic norm may be defined as follows:

11. The Pure Theory (1967), p. 217.

12. Ibid.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

coercion of state against state ought to be exercised under the

conditions and in the manner that conforms with the custom con-
stituted by the actual behaviour of the states .... 13
and primacy is accorded within this framework to international law
over national law. On another view international law may be seen as
an effective part of the national legal order-the "external law of the
state"--and the basic norm of the national legal order is understood
accordingly so that primacy is given to this order.' 4 But, whilst the
jurist, in each case, presents us with a wholly different construction,
he starts, in each, with actual law, with what he sees as effective, and
the fact that, according to Kelsen, he can do this, seems to magnify
the role he gives to effectiveness. What follows for the concept and the
role of the basic norm is quite another matter.
What Kelsen says about the two equally legitimate constructions
may or may not be reasonable. I am only arguing that the possibility
of two quite different juristic constructions of what is presented factu-
ally gives the all-important position to what is factual, namely effec-
tiveness. Thus what is said in the context of the national legal order is
confirmed by his observations on the relation international/national
law. If we say "whatever is, is right," we may, by forms of sophistry,
find a meaning for "right" distinct from "actual," but we leave little
room for "a justified normativity," or indeed, for any rational concept
of "normative." If the jurist may start with the laws of a country as
they actually work and make assumption of their validity as unques-
tioned, he is committed in advance to finding an explanation of that
validity in terms of the basic norm and the "generative framework"
obtaining under the basic norm. His task may seem eased, at first, by
the assumption that "the content of a positive legal order is entirely
independent from its basic norm" and that "the validity of a legal
order cannot be denied because of the content of its norms"; but
sooner or later he will be faced with a constitution containing material
provisions and an effective law violating these, or with laws that are
effective but procedurally irregular. That these difficulties manifestly
await the Kelsenian jurist indicates how extreme a position Kelsen
takes up; whether or not he would have a solution for them, need not
5
be discussed here.'

13. Ibid., p. 216.

14. Ibid., p. 335.
15. In "The Constitutional Function," Neues Forum, (Vienna, 1964), p. 583-86,
Kelsen takes up a position inconsistent with the pronouncements of The Pure Theory:
see lain Stewart's translation in The JuridicalReview (1980), part 2, pp. 214 ff., esp.
223.
ALIDA WILSON

There is, however, terrain not yet considered, in Kelsen's work,

upon which Raz might choose, following the lines of his article, to
contest what has been said. There are, that is: (1) references to possi-
ble refusal to pre-suppose the basic norm; (2) references to the need to
see an order as a "meaningful whole"; (3) references to the inadmissi-
bility of conflicting norms. The references to the possible refusal to
presuppose the basic norm are adduced by Raz in favor of the alleged
connection in Kelsen of acceptance and normativity. The reference to
the need to see an order as a "meaningful whole" and to the inadmissi-
bility of conflicting norms are cited by him to support his belief that,
for Kelsen, a legal system provides guidance to subject or citizen in
terms of "justified normativity."

REFUSAL TO PRE-SUPPOSE THE BASIC NORM

On this matter Raz goes to Kelsen's pre-1967 writings and adduces

three passages of identical effect. "I Before 1967, Kelsen asserted as
true within the juristic framework that every positive legal order
should be regarded as conforming with its basic norm and hence as
valid"1; but then at once added that the juristic framework does not
always have to be adopted, the basic norm does not always have to be
pre-supposed, that the relevant power-relations within a society could
be interpreted, not in normative terms, or juristically, but otherwise.
In thinking about this, Kelsen, by the terms of his approach to law,
should have seen himself restricted to speaking of the adoption or non-
adoption of the juristic view and the possible substitution for it of
some other theoretic view, e.g. the sociological view; and he should
have perceived that disapproval of law in general, in virtue of a moral
attitude (anarchism), or of a certain type of legal system, in view of a
political attitude (communism), constituted, for his theory, a practical
stance such as could co-exist with the juristic view, without affecting
it or being affected by it. This Kelsen somehow failed to see in the
three pre-1967 passages adduced by Raz. In 1967, in adding footnotes
to The Pure Theory, he perceived that the kind of practical refusal he
had envisaged-refusal on moral or political grounds-to "pre-sup-
pose" the basic norm was merely irrelevant to his juristic contention
that the "presupposition of the basic norm is possible but not neces-
sary" and he withdrew the argument which he had based on such
refusal. That is to say Kelsen eventually treats the practical refusal of

16. Raz, op. cit., pp. 137-8.

17. The Pure Theory (1967), p. 217.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

an anarchist to approve any basic norm as no obstacle to the descrip-

tion of positive law as a "system of valid norms":
In earlier publications I used as an example for the fact that the
presupposition of the basic norm is possible but not necessary: an
anarchist does not presuppose the basic norm. The example is
misleading. The anarchist emotionally rejects the law as a coercive
order; he objects to the law; he wants a community free of coer-
cion, a community constituted without a coercive order. Anar-
chism is a political attitude based . . . on a wish. The sociological
interpretation, which does not presuppose a basic norm is a theo-
retical attitude. 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.' 8
By equating normativity with "acceptance"-rational or intui-
tive-of a normative system, Raz is able to reach the conclusion: "For
an individual to presuppose the basic norm is to interpret the legal
system as normative, i.e., as just."' 9 But Raz's conception of nor-
mativity as "justified normativity" denies the essence of Kelsenism:
Kelsen's notion of validity determines the reality upon which it is
applied without the content of the system having any bearing on it
whatsoever.
Kelsen is prepared to give the decisive role to the juristic method he
favors: which "merely makes conscious what most legal scientists
do."' 20 According to this method the jurist alone is competent to settle
the question of the existence or not, in a particular case, of law; on
reviewing any effective order he may presuppose for it the appropriate
basic norm and, by presupposing this norm, see the order as valid, as
legal.
If the appropriate basic norm may be attributed to any effective
order, in other words, if effectiveness (as seems to follow) is a suffi-
cient condition for legal normativity, the question arises, what differ-
ence is there between effectiveness and validity, and why is it only the
jurist who can recognize the effective order and judge the existence or
not of a legal order? The only answer to the question is in terms which
are both implicit in Kelsen's whole line of thought and constitute its
reductio ad absurdum. Effectiveness (so the answer and reductio run)
and validity are not identical, but their necessary connection is such
that, whenever any legal order is effective, validity is seen by the
jurist, in his terms, as attending upon it, just as whenever a man

18. The Pure Theory (1967), p. 218, footnote 82.

19. Raz, op. cit., p. 138.
20. The Pure Theory (1967), pp. 204-5 (quoted by Raz).
ALIDA WILSON

stands in light his shadow is seen attending upon him; only, in the case
of law, the light in which validity-is seen attending on effectiveness
can be supplied only by legal science. Once the jurist of the Kelsenian
stamp turns the light of his science upon the facts presented to him, he
will at once recognize a de facto order as de jure legitimate, and his
only further task will be to work out his technical definition of the
legal form under which the effective order operates.
What does Kelsen mean by saying that one may but does not have
to presuppose the basic norm, that "the presupposition of the basic
norm is possible, but not necessary"? His meaning is simply that one
who has viewed a certain coercive order as "an objectively valid legal
order," that is, in juristic terms, may quite properly also view it in
terms wholly alien to the juristic, always provided that he does not
attempt to combine the two views, but perceives that the juristic
view, being self-contained, cannot and should not have non-juristic
elements foisted upon it and that the same applies mutatis mutandis to
his other view whatever it may be. Provided that one observes this
caveat, the juristic and the non-juristic view (of any kind) of a certain
order can co-exist; one may pass from the juristic view of a certain
order to the sociological view or some other theoretic view, and
maintain the juristic view wholly intact; likewise, leaving the theo-
retic spectrum altogether, one might pass to the view of practical
moral or political judgment without detriment to the juristic view.
Thus Kelsen had eventually to admit the possibility of an anarchist
professor of law who is perfectly entitled to describe positive law as a
system of valid norms. In declaring previously that an anarchist could
not do this-and that a communist could not do so in the case of
capitalist law-Kelsen deviated from his fundamental position; but it
is clear what his fundamental position was, in this respect, all along.

CONFLICT OF NORMS
It is not surprising that Raz, given the lines of his interpretation of
"a normative system," finds the doctrine of the admissibility of con-
flicting norms damaging to Kelsen's view of the normativity of law:
"[Kelsen's] theory of the normativity of law is intelligible and consist-
ent only on the assumption that valid norms are necessarily consist-
ent." 21 This Raz explains further:
It is of the essence of the concept of a normative system that it
guides behaviour; it guides behaviour of those persons who adopt
the relevant point of view. But if conflicting norms are assumed to

21. Raz, op. cit., p. 138.

 THE AMERICAN JOURNAL OF JURISPRUDENCE

be valid from one point of view, then they do not guide22behaviour

for they point in opposing directions at the same time.
In fact the admissibility of conflicting norms is not merely consonant
with Kelsen's fundamental doctrine, but imperatively demanded by
it. It is so demanded: (a) by the origin, character, and status of the
particular norm: the particular norm issues from the emotional-
volitional element of our being, and is purely directive, not true or
false-or even good/bad, wise/unwise; (b) by the relation of the par-
ticular norms of any system to the basic norm: when Kelsen says that
the norms of a system derive validity from the basic norm, he insists
most explicitly that any norm can so derive validity, irrespective of its
content.
To maintain, as Kelsen did at one stage, that the logical principle of
23
non-contradiction has force in the sphere of normative validity,
clashed with his general and fundamental aim, to present law as it is
without countenancing any alien criteria for determination of legal
quality. When Alf Ross declared "the principle of non-contradiction
between norms . ..scarcely harmonizes with . . .the non-cognitiv-
ism and relativism otherwise professed by Kelsen in moral philoso-
phy, ' 24 he was, of course, right to attribute non-cognitivism and
relativism to Kelsen; yet his statement obscured the fact that Kelsen
was driven by his basic premises to exclude even the criterion of inner
rationality from determination, in any particular case, of what consti-
tutes legal order.
When Kelsen was drawn into asserting the principle of non-contra-
diction in legal order, he was led further to elaborate, in a far-
reaching way, its implications for law. This aberration, into which he
fell under the spell of German idealism, is found in 1945 in The
General Theory. 25 Here he has his eyes, not so much on the particu-
lar conflict of norms as directly experienced, but rather on his own
world of discourse, his idea of the way in which law must be consid-
ered if the legal scientist is to begin to describe it. In this Kelsen was
influenced by two idealist propositions: first-and here he did not
investigate the difficulties-that the objects of perception and of
thought, so far from existing independently of these and awaiting
discovery, are created in perception and thought. Second, that to
think and understand, in any field, is to connect and unify creatively

22. Ibid.
23. General Theory of Law and State (1945), pp. 401 ff.; 408 ff.; 363 ff.
24. Directives and Norms (Copenhagen, 1945), p. 156.
25. See note 23.
ALIDA WILSON

the matter in question. Eagerly following up this idea (in terms of his
notorious proposition about method and object) he did not sufficiently
consider whether the idea is not misconceived from the start: we
cannot think at all about (a) and (b) unless we hold them together,
temporarily, in thought; but it does not follow from our retention of
(a) and (b) together in thought that they form in any sense a real
unity. Nonetheless Kelsen, at this stage, took it as axiomatic for legal
theory that to understand is to unify in a creative sense. It is an
epistemological postulate, in this approach, that we cannot think of a
legal order as existent unless we predicate its unity. Thus, upon the
assumption that we wish to think about law in the most general terms
possible, national and international law, if we accept them both as
sets of valid norms, must be comprehended as parts of "one harmoni-
ous system"126 ; the basic norm establishing the system with a limited
scope (i.e. a national system) must be subordinated to a higher norm,
which imposes such limitation and accordingly, to a higher system or
norms.
This ruled out for Kelsen the possibility of conflict between simulta-
neously valid norms, not only in a limited order, but in terms of the
total order. It escaped his attention, however, that on his own prem-
ises the validity of any norm stems purely and simply from the "spe-
cific process" of its creation within the terms of the basic norm-not
from any other criterion involving its relation to other norms or to the
system.
At this stage, that represented by The General Theory, Kelsen was
still thinking of norm and proposition as analogous for the purposes
that he had in mind, and he purported to find in this analogy further
ground for ruling out the admissibility of conflicting norms. He
thought, that is, that just as it is inadmissible to ascribe truth both to a
given proposition and to its contradictory or contrary, so it is inadmis-
sible to ascribe validity both to a given norm and to another norm
conflicting with it. He overlooked the facts that a proposition, in its
essential character, and a norm-at least as defined by himself-in its
character, are wholly different; that it is fallacious to argue as he did
from proposition to norm and that consideration of the validity of
conflicting norms had to proceed on an independent basis. Yet it does
not affect the issue of the admissibility of conflicting norms whether or
not the analogy proposition/norm be thought to hold. If the basic
norm can on its own supply the criterion for the validity of norms, it
supplies that criterion even if the inclusion of conflicting norms within

26. The General Theory, p. 373.

 THE AMERICAN JOURNAL OF JURISPRUDENCE

a legal system is comparable to the inclusion of conflicting proposi-

tions within a propositional system. Evident absurdity is involved, but
we should not question Kelsen's adoption of a certain view simply
because of its consequences.
In all this preoccupation with unity, to the neglect of other consid-
erations, we should probably see Kelsen as deeply involved, at the
time, in that kind of idealism peculiar to neo-Kantians in Germany, in
the late nineteenth and early twentieth centuries. Once, as is done in
that kind of idealism, we assimilate the object about which we think
and our thought about the object, we are compelled to introduce
unity and non-contradiction, required in the process of thought, into
the object, as elements necessary to its reality: it follows that a non-
contradictory account of norms can only be about norms that are non-
contradictory.
When in 1960, in revising and republishing The Pure Theory,
Kelsen again discussed the question of the conflict of norms, he treated
it from a different and initially more plausible approach: the situation
as we see it in its immediacy when a prima facie conflict arises. If
"interpretation" cannot remove the conflict, then the legislator creates
something meaningless; likewise, the basic norm does not bestow the
objective meaning of a valid norm upon every act, but only upon an
act that has meaning. Here he concluded that a norm which con-
flicted with another and hence had no meaning was void. Though in
the same paragraph Kelsen harks back to the epistemological doctrine
of The General Theory, this assertion is sensible in itself. But inherent
in this rejection of the meaningless act and in the requirement of
meaning is a demand for some kind and measure of rationality in a
legal system. If Kelsen demands this in a legal system, he is beginning
to look in a direction which, in his most strictly positivist declarations,
27
he rejected.
Equally, when Kelsen, in thinking of a prima facie conflict of
norms, touches on the possibility that "interpretation" may remove
the conflict, he is looking in a direction alien to strict positivism. Such
interpretation, granted his terms, gives an anomalous practical func-
tion to jurisprudence, which Kelsen sees, ex hypothesi, as theoretical.
What he said about interpretation was subsequently ruled out in
revision of his ideas in this field: after an excursion in The Pure Theory
into an account of legal normativity which gives some possible support
to Raz's ascription to him of "justified normativity," he comes back
finally to a view consistent with his positivism. Thus, what Kelsen said

27. For the vieis here discussed see The Pure Theory (1967), pp. 205-8.
ALIDA WILSON

in that excursion must be treated as aberrant in the light of the overall

development of his thought.
His final view-attained soon after publication of the 1960 edition
of The Pure Theory-seems quite expressly designed to relieve him of
both the charges just adumbrated. That is to say, he argues that a
valid legal system can and sometimes does include conflicting norms
applicable simultaneously to the same addressee. The clearest and
sharpest statement of the view is in the 1963 essay "Law and Logic":
There can even be conflicts . . . between norms of one and the
same law ... both the conflicting norms are valid, so that, if one is
obeyed, the other must be violated: and it can only be violated if it,
too, remains valid.
Here the sharpest possible contradiction is evidently intended to the
common sense expressed in The Pure Theory upon this subject.
Equally there seems to be a slap in the face for his own previous words
about interpretation, when he adds:
...this conflict cannot, like a logical contraction, be resolved by
way of knowledge with the aid, say, of legal science. Legal science
can only confirm the existence of this conflict, and must leave its
resolution to the 28act of will of the legal authority, or to customary
non-observance.
This conclusion conforms with the logic of Kelsen's characteristic
position-when freed from the influence of a misguided idealism-
which may be summed up as follows: the legal norm is not testable for
truth, wisdom, or even rationality against any objective or intellectu-
ally acceptable criterion; the validity or otherwise of a legal norm
follows from its relation, in respect of the formal requirements of a
specific process, to the basic norm. The definition of the specific
process whereby norms are created within a valid system requires that
norms of conflicting character shall be valid simultaneously till the
legislature or the judiciary has remedied the situation.
All this is to consider in one way the question of the basic norm and
the unity of a legal order. Another way will be to consider the three
propositions which as Raz sees it are held by Kelsen in conjunciton
with his thesis of the basic norm and may be regarded as axioms of his
theory.
The three axioms attributed by Raz to Kelsen are: (1) two laws, one
of which directly or indirectly authorizes the creation of the other,
necessarily belong to the same system; (2) all the laws of a legal system

28. Essays in Legal and Moral Philosophy, ed. 0. Weinberger (Dordrecht,

1973), p. 233 and p. 235.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

are authorized, directly or indirectly, by one law; (3) norms cannot

derive their existence, i.e. their validity from facts.29 Of these three
so-called "axioms" one-the first-seems wrongly so ascribed; the
second is ambiguously formulated, as will be shown. The third seems
to me to be a fair and accurate statement of Kelsen's early doctrine
from which, as we have seen, he greatly departed later on.
Raz begins by examining the second axiom. This, as he puts it,
Kelsen treats as "too self-evident to require any detailed justification."
However, though treated by Kelsen as self-evident, Raz goes on to say
30
that it "looks on the face of it like an empirical generalization"
which can easily be falsified: for instance, if a legal order contains
both common and statutory law-as in Britain--"there will be no
positive law authorizing both."' 3' Raz will have us believe that Kelsen
saw this proposition as self-evident and therefore not in need of empir-
ical justification, yet (at the same time or later) came to seek and
could not find such justification for it, and therefore passed over to
another proposition which, this time, he can put forward as genuinely
self-evident. Furthermore, he will have us believe that in passing over
to this new proposition, Kelsen is "saving" the original proposition,
the so-called "second axiom." In fact, however, Kelsen does not begin
by saying that all the laws of a system are authorized by one positive
law, only to pass over, on discovering the problem involved, to postu-
lating that there is in every system one non-positive law. Rather, what
Kelsen states in The Pure Theory is that the presupposition of the basic
norm, as a hypothesis, endows all the laws of a system with "validity"
or normativity:
If the application of customary law by courts is considered to be
legitimate although the written constitution contains no such au-
thorization, then the authorization cannot be considered to proceed
from an unwritten custom-created constitution but must be presup-
posed.... Then the basic norm (the constitution in the transcen-
dental-logical sense) institutes not only
32
the act of the legislation,
but also custom as law-creating facts.
Kelsen adds another explicit statement:
...a basic norm must be presupposed which institutes not only
the fact of the creation of a constitution, but also the fact of a
qualified custom as law-creating fact . . . (this) basic norm does

29. Raz, op. cit., pp. 123-5.

30. Ibid., p. 124.
31. Ibid.
32. The Pure Theory (1967), p. 223. Italics in the original.
ALIDA WILSON

not refer directly to a constitution in the positive-legal sense and

only indirectly to the legal order established in accordance with
that 33
constitution, but directly to the legal order created by cus-
torn.
The "axiom" therefore, should not read "all the laws of a legal
system are authorized. . . by one law,"' 34 as Raz has it, in the sense of
being "authorized by a positive law." It should be understood as
"authorized by the basic norm." Thus stated, the "axiom" is not an
empirical generalization and there is, consequently, no problem of
falsity to overcome; more importantly, thus stated the "axiom" is a
correct version of Kelsen's thought.
The first axiom in Raz's formulation reads: "two laws, one of which
directly or indirectly authorizes the creation of the other, necessarily
belong to the same legal system." The axiom reads in this form on
p. 123. On p. 127 the axiom is said to assert that "all the laws
belonging to one chain of validity are part of one and the same legal
system."
There is a confusion here. For it is surely one thing that a particular
law directly or indirectly authorizes another, and quite a different
matter that we see "all laws belonging to one chain of validity as part
of one legal system." With the first formula we are speaking the
language of practical, political-legal life. With the second formulation
we move into the field of juristic theory, i.e. of the basic norm as
explaining validity in terms of Kelsenian theory. To put this in other
words: Raz's two formulations appear to repeat the same proposition,
but in fact, they do not. As they stand neither formulation is entirely
acceptable. Kelsen's own original formulation should still be pre-
ferred: "All norms whose validity can be traced back to one and the
same basic norm constitute a system of norms .... ,35
Let us consider the hypothetical example Raz uses to make his
point. He supposes-for the sake of his argument about the axiom-
that country A has granted independence to country B "by a law
conferring exclusive and unlimited powers over B to a representative
assembly elected by the inhabitants of B" and that "this representative
assembly has adopted a constitution which is generally recognized by
the inhabitants of B and according to which elections were held and
further laws were made." "The government, courts and the popula-
tion of B regard themselves as an independent state with an indepen-

33. Ibid., p. 226. Emphasis added.

34. Raz, op. cit., p. 123.
35. The Pure Theory (1967), p. 195.
 THE AMERICAN JOURNAL OF JURISPRUDENCE

dent legal system." Despite all this, Raz says, and despite interna-
tional recognition of the new regime, "it follows from Kelsen's first
axiom that the constitution and laws of B are part of the legal system
of A." 36 But does this implausibility follow?
The implausibility follows only if we fail to see how erroneous is the
unstated assumption involved in this interpretation of Kelsen. The
unstated assumption is that it is meaningful to think of authorization
by one law of another without having considered the scope and range,
in a material sense, of the application which we envisage as possible
for the authorizing law. It is only when the authorizing law and the
law to be authorized belong to one and the same system that it is
meaningful, in Kelsen's terms, to speak of such an authorization; or
rather-an obvious but essential addition-when they both belong to
one and the same actual and effective system.
Were the Act "granting independence" on the part of A and the
adoption of a constitution by the assembly of B to be seen simply and
solely in terms of positive law, then the alleged "axiom" would have to
lead to this absurd result. But that Act and the adoption in B of a
constitution cannot-whatever theory of law we hold-be seen in the
same terms as that kind of legislation in which the constitution and its
scope are taken for granted; and under Kelsen's theory, both the Act
on the part of country A and the adoption of the constitution in B
must be seen-if effective-as the kind of change requiring the jurist
to presuppose the basic norm in new terms. I said "if effective," and
the importance of this condition is obvious: Kelsen would not envisage
a fresh basic norm in the case of B-and in terms of ordinary common
sense we would not speak of independence as acquired-if despite a
complete change on paper, country A continued to administer, in the
same way as before, the affairs of B; or if B failed to assert practically
its independence. The importance of the effective change is equally
clear if we reflect on the element of paradox, in this context, in the
phrase "to grant independence." A person or body of persons may
rightly be said to have certain benefits granted by another; but this
same language cannot apply to the grant of independence for a depen-
dency. If the latter is to attain independence it must, ex hypothesi, not
merely be granted independence, but must effectively achieve and
assert its independence. According to Raz's formula the legal system in
B would be a valid legal system, in Kelsenian terms, by the mere
granting of independence by the Act. In fact, Kelsen's theory accords
validity only to those systems whose effectiveness is beyond doubt.

36. Raz, op. cit., pp. 127-9.

ALIDA WILSON 63

We are not faced with this particular difficulty when we come to

Kelsen's basic norm. The basic norm, for Kelsen, does not exist in
independence from the actual and effective system it validates; it
cannot be found before a set of norms proves itself effective as a
working system. The basic norm is not to be seen as the source for a
system of norms, or as the receptacle into which a system is fitted. On
the contrary, it emerges only when we ask the question: Why do we
regard this actual system as valid?