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Kelsen's Metaethics

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 1

Kelsen’s Metaethics

Torben Spaak *

1. INTRODUCTION

Much has been written about the legal philosophy of Hans Kelsen, but his moral philosophy,

especially his metaethics, has not been much discussed. In this article, I therefore want to

consider Kelsen’s metaethics and discuss its implications for Kelsen’s legal philosophy. I argue

(1) that although in his earlier writings, such as the first edition of Reine Rechtslehre, Kelsen

was content to reject moral cognitivism in the shape of non-naturalism, and although he might

have waivered between emotivism and metaethical relativism around the time of General

Theory of Law and State, his mature view – as expressed in, and around the time of, the second

edition of Reine Rechtslehre – was that of a metaethical relativist. I also argue (2) that his

rejection of moral cognitivism was part of the reason why Kelsen insisted on methodological

purity in the study of law in the sense of a separation of law and morality, and why he rejected

*
Professor of Jurisprudence, Department of Law, Stockholm University. Thanks are due to the participants in

the advanced seminar in practical philosophy at Uppsala University for a number of helpful comments on this

article. Thanks are also due to William Bülow, Staffan Carlshamre and Åke Frändberg for helpful comments on

the text and to Stefano Bertea and Monika Zalewska for equally helpful comments on an earlier version of the text.

In addition, I would like to thank the participants in the philosophy of science colloquium at the Institute Vienna

Circle, University of Vienna, for helpful questions and comments on my presentation of the main ideas in the

article. Finally, I would like to thank Victor Moberger for discussing metaethical questions and Karl Pettersson

for discussing questions of logic with me, and Robert Carroll for checking my English. As always, the author alone

is responsible for any remaining mistakes or imperfections.

 2

natural law theory; and (3) that it was the reason why he defended the more general ideal of

value-neutral science; and (4) that his more specific commitment to metaethical relativism was

the reason why he defended democracy as well as tolerance in the shape of a constitutionally

guaranteed freedom of thought. Next, I argue (5) that although it might seem difficult to square

a commitment to metaethical relativism with the view that law is necessarily normative in the

strong sense contemplated by Kelsen, the reason why Kelsen can nevertheless coherently hold

that law is necessarily normative in this sense is that he conceives of the normativity of law not

as a necessary property of law, but as consisting in the use of normative language by judges,

attorneys, legal scholars, and others. Finally, I consider (6) the possibility that in his post-1960

phase Kelsen abandoned metaethical relativism for moral fictionalism, but argue (7) that, on

the whole, a relativist interpretation of Kelsen’s late legal philosophy is to be preferred to a

fictionalist interpretation.

I begin with an outline of the Pure Theory of Law and of Stanley Paulson’s periodization

of the Pure Theory (sections 2-3). I then say a few words about metaethics in general (Section

4) and consider Kelsen’s metaethics in more detail (sections 5-6). Next, I discuss the

implications of this metaethics for Kelsen’s legal philosophy (sections 7-11), and proceed to

consider, first, the difficulty of combining a strong conception of legal normativity with a

relativist metaethics (Section 12), and then the possibility of a fictionalist interpretation of

Kelsen’s late legal philosophy (Section 13). I conclude by arguing that a relativist interpretation

of Kelsen’s late legal philosophy is, on the whole, preferable to a fictionalist interpretation of

said philosophy (Section 14), and by pointing out that my discussion of Kelsen’s metaethics in

this article is meant to be a rational reconstruction, not an exegesis, of Kelsen’s writings

(Section 15).
 3

2. THE PURE THEORY OF LAW: A SHORT OUTLINE 1

As is well known, Kelsen maintains that his theory of law is pure, in the sense that it holds that

law – conceived as a system of valid norms – is conceptually independent of both nature and

morality. The theory, he explains, is called a pure theory

. . . because it aims at cognition focused on the law alone, and because it aims to eliminate from this

cognition everything not belonging to the object of cognition, precisely specified as the law. That

is, the Pure Theory aims to free legal science of all foreign elements. This is its basic methodological

principle. (1992[1934], 7. See also 1960, 1)

What Kelsen means by the separation of law and nature is that law exists in a realm beyond

time and space, in the ‘world of the ought,’ 2 and that therefore legal science must not invoke

natural – as distinguished from non-natural – properties in the analysis of law and legal

phenomena. His idea is that the peculiar property that turns an alleged judicial decision, say,

into a (genuine) judicial decision cannot find room in the world of time and space (1960, 2).

For, he reasons, if we analyze a judicial decision, or a piece of legislation, we will find that it

consists of two elements: one element that belongs to the world of time and space, such as a

human action or an event, and another element that does not exist in the world of time and

space, namely, a specifically legal, normative meaning, which legal norms confer on the

relevant action or event (ibid., 2-4). This normative meaning is that an action ought to be

1
The text in this section is an expanded version of the text in Spaak (2013, 233-6).
2
As Kelsen (1984[1923], 8) puts it, “[t]he difference in principle between these two forms of thought lets ‘Is’

and ‘Ought’ appear as two separate worlds.” (In German: “Die prinzipielle Verschiedenheit beider Denkformen

läßt Sein und Sollen als zwei getrennte Welten erscheinen.”)

 4

performed or ought to be omitted, and it is this property that Kelsen (1999[1945], 37, 61) refers

to as validity or, occasionally, as bindingness, and that many today refer to as normativity.

The reason why Kelsen holds that legal scholars must separate law from nature is that he

holds that law is necessarily normative, and that analyzing the concept of law or other legal

concepts in terms of natural properties, say, analyzing the concept of a legal duty in terms of

the likelihood that a person who flouts the law is likely to suffer a sanction, amounts to “denying

the ‘ought’” (1992, 32-3; 1960, 107-13) and misconceiving the nature of law. As he puts it

(1992, 33), “[i]f one deprives the norm or the ‘ought’ of meaning, then there will be no meaning

in the assertions that something is legally allowed, something is legally proscribed, this belongs

to me, that belongs to you, X has a right to do this, Y is obligated to do that, and so on.”

The other aspect of the purity ideal, then, is the conceptual separation of law from other

ideal phenomena, such as morality (ibid., 15): “Here, above all, the task is to unfetter the law,

to break the connection that is always made between law and morality. /… / what is rejected is

simply the view that the law as such is part of morality, and that therefore every law, as law, is

in some sense and to some degree moral.” The conceptual separation of law from both nature

and morality leads in turn by way of Hume’s law to the theory of the basic norm (Grundnorm).

Since one cannot deduce an ‘ought’ from an ‘is’ (1960, 5), and since, on Kelsen’s analysis,

there is no necessary connection between law and morality, a person who wishes to conceive

of the legal raw material as a system of valid, that is, binding, norms needs to presuppose the

basic norm, which can be formulated schematically as follows (1992, 57): “Coercion is to be

applied under certain conditions and in a certain way, namely, as determined by the framers of

the first constitution or by the authorities to whom they have delegated appropriate powers.”

The presupposition of the basic norm, Kelsen explains (1999, 116), is necessary for anyone

who wants to conceive of law as a system of valid norms, while remaining within the framework

of legal positivism.
 5

Kelsen emphasizes, however, that although one may, one does not have to, presuppose the

basic norm, which is to say that although one may, one does not have to, conceive of law as a

system of valid norms. For example, Karl Olivecrona (1939) argues that there is no such thing

as binding force (or normativity), and that law is best understood as a set of independent

imperatives, whose function is not to confer rights and impose duties, but to cause the subjects

of law to behave in certain ways (on this, see Spaak 2014, chaps 7-8). On Kelsen’s analysis,

then, the validity of law is conditional upon the presupposition of the basic norm, or,

alternatively, as Joseph Raz (2009c[1979], 303-8) proposes, is seen from the point of view of

the person presupposing the basic norm; and, as we have just seen, the presupposition of the

basic norm in turn is conditional upon the wish of the person making the presupposition to

conceive of law as a system of valid norms.

As Kelsen sees it, the basic norm plays an epistemological – not a justificatory – role in the

analysis:

Just as Kant asks: How is an interpretation, free from all metaphysics, of the data given by our senses

formulated in laws of nature by natural science possible, the Pure Theory of Law asks: How is an

interpretation of the subjective meaning of certain facts, that does not fall back on authorities beyond

law such as God or nature, as a system of objectively valid legal norms that can be described by

legal statements possible? The epistemological answer of the Pure Theory of Law is: on the

condition that one presupposes the basic norm. (1960, 205. See also ibid., 224-5; 1999, 394-5; 1992,

58, 64) 3

3
Translated into English by Robert Carroll. The German original reads as follows: „So wie Kant fragt: wie ist

eine von aller Metaphysik freie Deutung der unseren Sinnen gegebenen Tatsachen in den von der

Naturwissenschaft formulierten Naturgesetzen möglich, so fragt die Reine Rechtslehre: wie ist eine nicht auf meta-

rechtliche Autoritäten wie Gott oder Natur zurückgreifende Deutung des subjektiven Sinns gewisser Tatbestände

als ein System in Rechtssätzen beschreibbarer objektiv gültiger Rechtsnormen möglich? Die
 6

His characterization makes it clear that the act of presupposing the basic norm is an act of

cognition, not an act of volition, so that the basic norm becomes the meaning of an act of

thinking, not the meaning of an act of will (1960, 9, 205-6). However, as we shall see (in Section

13), Kelsen would change his mind on precisely this point within a few years, arguing that there

is a necessary connection between norms and the human will, that this means that the basic

norm is the meaning of an act of will, and that the basic norm is therefore a genuine fiction in

the sense of Hans Vaihinger’s Philosophy of ‘As-If’ (see Kelsen 1965, 85).

As I see it, the reason why the theory of the basic norm is part of the Pure Theory is that

Kelsen operates with a rather strong conception of normativity, which Joseph Raz

(2009b[1979], 134) has called justified normativity. Kelsen’s idea is that to understand the

nature of law is to understand law as a system of valid norms, where a standard is a norm if,

and only if, it expresses (what Kelsen refers to as) an objective ‘ought.’ What is an objective

‘ought’? Kelsen explains (1960, 7) that an action, φ, is such that an agent, A, objectively ought

to perform φ if, and only if, A (subjectively) ought to perform φ not only from the point of view

of the norm-giver, B, but also from the point of view of a disinterested third party, C. 4 According

to this conception of normativity, then, a legal standard qualifies as a norm if, and only if, it is

justified. 5

erkenntnistheoretische Antwort der Reinen Rechtslehre lautet: unter der Bedingung, daß man die Grundnorm

voraussetzt.“
4
Kelsen’s analysis of the concept of an objective ‘ought’ is not crystal clear. First, although Kelsen does not

say so, he must reasonably have in mind a subjective ‘ought’ on the part of the disinterested third party – if it were

an objective ‘ought’, the analysis would be circular, and he does not seem to reckon with any other type of ‘ought’.

Secondly, one may well wonder what to make of Kelsen’s reference to a disinterested third party. What if two

disinterested third parties take different views on the status of the standard in question? Perhaps Kelsen thinks of

the disinterested third party as some kind of ideal observer?

5
I discuss the conception of justified normativity in more detail in Spaak (2018, 6-11).
 7

Let me conclude this section by pointing out that I find the difference in meaning, on

Kelsen’s analysis, between the statements ‘N is a norm’ and ‘N is a valid norm’ unclear.

According to Kelsen, a standard, S, is a norm if, and only if, it expresses an objective ‘ought’

in the sense explained, and a norm is valid if, and only if, the norm ought to be obeyed. But

what could it mean to say that one ought to obey a norm that expresses an objective ‘ought’?

Alf Ross (1998 [1961], 153-5, 160) proposes that whereas the ‘ought’ of the legal norm is a

legal ‘ought’, the ‘ought’ of validity is a moral ‘ought.’ But it seems to me that if this were so,

we would have rendered the normativity of the objective legal ‘ought’ obscure and undermined

the very conception of justified normativity in the process.

3. THE PURE THEORY OF LAW: A PERIODIZATION

Kelsen was a prolific writer who had a very long career. Unsurprisingly, he changed his mind

on different topics – large and small – a number of times, and as a result, one needs to be

cautious when making claims about Kelsen’s legal-philosophical views: What is true of the

early Kelsen might not be true of the later Kelsen, and vice versa. To make the following

discussion of Kelsen’s metaethics and its implications for Kelsen’s legal philosophy as clear as

possible, I shall therefore introduce Stanley Paulson’s (1990) periodization of Kelsen’s Pure

Theory of Law.

Taking a periodization to be “a reconstruction of a course of doctrinal development” (ibid.,

11), Paulson proposes that we distinguish four phases in the development of the Pure Theory,

namely, (i) a constructivist phase from 1911 to about 1920, (ii) a strong Neo-Kantian phase

from about 1920 to the mid 1930’s, (iii) a weak Neo-Kantian phase from the late 1930’s to

1960, and, finally, (iv) a skeptical, or empiricist, phase from 1960 and onwards.
 8

The constructive period, Paulson explains (ibid., 24-30) is characterized by an effort on

Kelsen’s part to construct various legal entities or properties, such as guilt or will, in such a

way as to eliminate any reference to psychological elements. The way Kelsen intended to

accomplish this was by inverting the natural order between, say, will and interpretation, or guilt

and punishment, thus arguing that a person is not punished because he is guilty, but guilty

because he is punished, and that the will (of the legislature) does not determine the interpretation

(of a statute), but the interpretation determines the will. 6 The strong Neo-Kantian period,

Paulson continues (ibid., 33-9) is marked by Kelsen’s claim that legal science constitutes its

object by imposing the idea of a formal, legal ‘ought’ on the legal raw material, and by

introducing the transcendental argument, according to which it is necessary to presuppose the

basic norm in order to have knowledge of law as a system of valid norms. The weak Neo-

Kantian period (ibid., 40-5) is then distinguished from the strong by the addition to the Pure

Theory of certain empiricist elements, such as a Humean view of causation, and the distinction

between norms and statements about norms. The idea is that the introduction of these new

elements clashes with the Neo-Kantian elements of the theory and thus contributes to a watering

down of the Neo-Kantian dimension of the theory. 7 The skeptical phase, finally, is characterized

by Kelsen’s rejection of the idea that the laws of logic apply to norms, and by the introduction

of the idea that, necessarily, a norm is the meaning of an act of will (on the skeptical period, see

Paulson 2017).

6
The idea of an objective, as distinguished from a subjective, conception of legislative intent appears to be

closely related to such constructivism. On this distinction, see MacCormick and Summers (1991, 522).
7
I take it that the reason why the introduction of the distinction between legal norms and statements about

legal norms amounts to a watering down of the Neo-Kantian dimension of the theory is that if, according to the

Neo-Kantian view, legal science constitutes its object, one cannot distinguish between legal norms and statements

about legal norms.

 9

This periodization will be of some interest in the following discussion, partly because

Kelsen’s relativism became more pronounced with the passing of the years and the watering

down of the Neo-Kantian dimension of the Pure Theory, and partly because Kelsen was explicit

in the last, skeptical phase that he saw the basic norm no longer as a hypothesis, but as a fiction.

4. MORAL ANTIREALISM 8

On the ontological level, moral philosophers make a distinction between moral realism, which

has it that moral properties are conceptually independent of our beliefs or desires, and moral

antirealism, which has it that moral properties do not exist at all, or else that they are

conceptually dependent precisely on our beliefs or desires (Brink 1989, chap. 2). 9 Since Kelsen

was a moral antirealist, we shall focus on antirealist metaethics in what follows.

Moral antirealism comes in four main forms: (i) noncognitivism (ii) error theory, (iii)

fictionalism, and (iv) constructivism, 10 though, as we shall see, there is an overlap between

error theory and fictionalism. Noncognitivists maintain that there is no moral reality or moral

knowledge, and that moral claims are not statements, so they cannot be true or false. Instead,

they maintain that a person who makes a moral claim is expressing his feelings, attitudes or

preferences (Ayer 1947, chap. 6; Blackburn 1998; Hägerström 1964; Stevenson 1944), or

8
The text in this section is an expanded version of the text in Spaak (2014, 88-92).
9
This way of drawing the distinction is not without its problems. For example, the view that a moral statement

such as “X is good” means something like “the majority of people in my society like X” is a version of (semantic)

naturalism, and naturalism is considered to be a version of realism. On the difficulty of making the distinction

clear, see Joyce (2016, 5-7).

10
These theories are sometimes taken to be purely semantic theories, but here I take them to have not only a

semantic but also an ontological dimension.

 10

prescribing a course of action (Hare 1981). On this analysis, the function of moral claims is to

influence people.

Like noncognitivists, error theorists believe that there are no moral properties and that

there is no moral knowledge, but unlike noncognitivists, they maintain that moral claims are

statements, which are always, perhaps even necessarily, false. John Mackie (1977, 35), for

example, denies the existence of objective moral values and maintains that ordinary moral

statements include a claim to objectivity, that this claim has been incorporated into the meaning

of moral terms, and that therefore the denial of objective moral values has to be put forward as

an error theory. Mackie’s analysis has been carried forward by Richard Joyce (2001, chap. 2),

who explains that the problem with our view of moral statements is not that they are thought to

be necessarily motivating, as Mackie might have thought, but that they are thought to involve a

claim about moral inescapability. For, Joyce explains, to maintain that Smith morally ought to

perform an action, φ, is to maintain that Smith ought to perform φ independently of his wishes,

preferences, or goals, and this in turn is to maintain that Smith has a reason to perform φ

independently of his wishes, preferences, or goals. Joyce objects, however, that this is precisely

what is wrong with the view under consideration. As he sees it, asking for reasons that exist

independently of a person’s wishes or desires is to ask too much of the world. Hence moral

statements are always false.

Joyce observes, however, that this conclusion leaves us with a practical problem: Should

we cease to engage in moral discourse, or should we perhaps go on more or less as before?

Joyce prefers the latter alternative and defends a fictionalist account of morality, according to

which we ought to continue using moral language in the usual way, while not believing the

moral claims we make. To take a fictionalist stance in general, he proposes (2001, 185), is “to

believe that the discourse entails or embodies a theory that is false . . . but to carry on employing

the discourse, at least in many contexts, as if this were not the case, because it is useful to do
 11

so.” To be a moral fictionalist, then, is to think of moral discourse as being representational,

that is, to believe that moral terms refer to moral entities or properties and that moral claims are

statements that aim to describe the moral world, while using moral language to communicate

something other than the semantic content of their moral statements.

To make this proposal work, the fictionalist needs to make a distinction between the

semantics and the pragmatics of moral discourse. On this analysis, while fictionalists and error

theorists agree that the semantics of our moral language is representational in the sense

explained, they differ on the pragmatic level. Whereas error theorists take the participants in

moral discourse to be aiming at a correct description of moral reality, but failing to accomplish

this, fictionalists take them to be pretending to aim at a such description, and in doing that to

be communicating something other than the semantic content of their moral statements, say, a

positive attitude to having a morality (on this, see van Roojen 2015, 177-8).

As should be clear, I am here describing a pretense (or make-believe) version of moral

fictionalism, which I find appealing, and which is to be distinguished from (what we might refer

to as) a tacit story operator version of such fictionalism. As Joyce (2005, 291-5) explains,

according to the pretense version, the speaker is not asserting the relevant proposition, but is

pretending to do so; according to the tacit story operator version, on the other hand, the speaker

is asserting a true proposition that includes the tacit story operator.

If we consider the advantages of having a system of moral rules and principles that guides

our lives, we might argue that those who make moral statements communicate, or could

communicate, not the semantic content of those statements, but a positive attitude to having a

morality. Following Joyce (ibid., 301), who identifies the value of having a morality in its

ability to bolster self-control against practical irrationality, we might say that a person who

makes a first-order moral claim, say, “You ought to keep your promise”, is not communicating

the semantic content of this claim, but is communicating instead a positive attitude to your
 12

keeping your promise. The reason why doing this would be useful is that maintaining a moral

system that bolsters such self-control would in turn make our lives better in various non-moral

ways, for example, by making our lives safer and better-ordered and by securing coordination

and cooperation in human affairs. Note that, on the fictionalist analysis, the advantages of

having a morality need to be non-moral advantages – if they were moral advantages, the

fictionalist would have to treat any statements about these advantages as false statements. As

Joyce points out (ibid., 288), we are trying to answer a practical, but not a moral, question, and

we can think of the answer to that question as turning on a cost-benefit analysis.

Joyce proposes that the decision to adopt morality as a fiction is best understood as a kind

of pre-commitment. On this analysis, a person decided in the past to adopt a moral point of view

and has now become accustomed to thinking morally. For example, the idea of stealing or

robbing would not enter into such a person’s mind, even if an occasion to steal or rob were to

present itself. On this analysis, the difference between a moral fictionalist and a moral believer

is that the fictionalist, but not the moral believer, has a disposition to deny that anything is really

morally right or wrong, good or bad, when placed in his most critical context, that is, when he

is committed to thinking clearly and rationally about morality and finds himself in a situation

that is conducive to clear and rational thinking (ibid., 306).

Moral fictionalism comes in two main forms: as revolutionary fictionalism and as

hermeneutic fictionalism (see van Roojen 2015, 176-7). Whereas revolutionary fictionalists are

error theorists, who propose that we adopt fictionalism at some time in the future, hermeneutic

fictionalists hold that we already are fictionalists, in the sense that we already treat morality as

a fiction along the lines described above. As we shall see (in Section 13), Kelsen’s position on

this point is not crystal clear.

Finally, moral constructivists (Harman 1982[1975]; 1996; MacCormick 2008, 102-3;

Rawls 1980) believe that moral claims are indeed statements, which can be true or false,
 13

depending on whether they describe correctly the relevant moral entities or properties, though

they insist that those entities or properties are constructed on the basis of our practical views

(on constructivism in metaethics, see Bagnoli 2017; Shafer-Landau 2003, 14; van Roojen 2015,

286-91). 11 This means that constructivists believe in moral truth and falsehood, and in our

ability to figure out which moral statements are true and which are false. Different

constructivists differ above all in their views about the constructivist procedure. For example,

whereas a relativist constructivist like Gilbert Harman (1982) maintains that moral right or

wrong, good or bad, depend on our current, unrefined practical views, a non-relativist

constructivist like John Rawls (1980) maintains that moral right or wrong, good or bad, depend

on our choices in the original position, in which agents choose moral principles behind a veil

of ignorance.

Here we shall be concerned with one distinctive type of moral constructivism, namely,

(what I shall refer to as) metaethical relativism. This is the view that moral truth or validity is

always relative to a moral framework, and that no such framework is objectively privileged as

the one true framework. As Harman (1996, 3) puts it, “moral right and wrong (good and bad,

justice and injustice, virtue and vice, etc.) are always relative to a choice of moral framework.

What is morally right in relation to one moral framework can be morally wrong in relation to a

different moral framework. And no moral framework is objectively privileged as the one true

morality.” We see that metaethical relativism thus conceived is something other than moral

11
My characterization of moral constructivism is a bit crude. For example, although I present it here as a

species of moral antirealism, some authors think of it as a species of moral realism. Whether the relevant type of

constructivism is the one or the other may depend on whether it imposes substantive constraints on the constructive

procedure: If it does impose such constraints, it will count as a realist theory; if it doesn’t, it will count as an

antirealist one. On this, see van Roojen (2015, 287-8). It seems to me, however, that imposing substantive

constraints on the constructivist procedure would amount to circular reasoning.

 14

skepticism or moral nihilism. On the relativist analysis, there are indeed moral rights and duties,

moral right and wrong, moral statements can be true or false, and we can have knowledge of

what is morally right or wrong, though all this assumes reference to a particular, non-privileged

moral framework which thus constitutes our morality.

5. KELSEN’S METAETHICS

Kelsen’s thoughts on metaethical questions are scattered throughout his voluminous writings,

but here I shall focus on his main publications: the first and the second editions of Reine

Rechtslehre (1992[1934]; 1960) and General Theory of Law and State (1999[1945]), together

with a 1948 article precisely on relativism and a 1956 article on natural law theory. As is clear

from our brief discussion of Paulson’s periodization of the Pure Theory, the first edition of

Reine Rechtslehre together with General Theory of Law and State and the two articles belong

in the strong neo-Kantian phase, whereas the second edition of Reine Rechtslehre falls into the

weak Neo-Kantian phase.

I shall argue that although in the first edition of Reine Rechtslehre Kelsen is content to reject

moral cognitivism in the shape of non-naturalism, and although he might appear to waiver

between emotivism and metaethical relativism in General Theory of Law and State, his

commitment to metaethical relativism becomes clearer with the passage of time, so that in the

1948 and 1956 articles and in the second edition of Reine Rechtslehre, there can be no doubt

that Kelsen is indeed a metaethical relativist. However, as we shall see (in Section 13), one

could argue that in his post-1960 writings, he leaves relativism behind and adopts instead a

fictionalist stance.

Beginning in the first edition of Reine Rechtslehre, Kelsen explains that the word ‘justice’

has both a specifically legal meaning, in which case it means formal justice (treat like cases
 15

alike), and a more general, or, as he says, a literal, meaning, in which it stands for substantive

justice in the shape of an absolute value:

In its literal meaning . . . ‘justice’ stands for an absolute value. Its content cannot be determined by

the Pure Theory of Law or, indeed, arrived at by way of rational cognition at all . . . . For in its

absolute validity, justice, which must be imagined as an order different from, and higher than, the

positive law, lies as much beyond all experience as the Platonic idea lies beyond natural reality, and

the transcendent thing-in-itself lies beyond appearances. (1992, 16)

We see here that Kelsen conceives of absolute (substantive) justice along non-naturalist

lines, and that in his view, there simply is no such thing as absolute justice. From the standpoint

of rational cognition, he explains, there are only interests and thus conflicts of interests, and

there is no rational way to determine a certain ordering of the competing interests (ibid., 17):

“That only one ordering of interests has absolute value (which really means, ‘is just’) cannot be

accounted for by rational cognition.”

Kelsen also considers the question of the status of morality in General Theory of Law and

State (1999, 6-8). Having explained that saying a social order is just amounts to saying that all

men find their happiness in it, he reiterates the view expressed above, namely, that there is no

rational way of ranking competing interests, and adds that value judgments are “determined by

emotional factors and [are], therefore, subjective in character, valid only for the judging subject

and therefore relative only.” Although his talk of emotional factors could be taken to mean that

he is here espousing emotivism, and although the phrase ‘valid only for the judging subject’

could be taken to mean that he is espousing some form of moral subjectivism (on moral

subjectivism, see Mackie 1977, 17-8), the next quotation, in which he maintains that a system

of morality is a social phenomenon and that value statements are relative not to individuals, but
 16

to groups of individuals, suggests that he is now (in General Theory) best understood as a

metaethical relativist:

A positive system of values is not an arbitrary creation of the isolated individual, but always the

result of the mutual influence the individuals exercise upon each other within a given group, be it

family, tribe, class, caste, profession. Every system of values, especially a system of morals and its

central idea of justice, is a social phenomenon, the product of a society, and hence different

according to the nature of the society within which it arises. (1999, 7-8)

Kelsen considers again metaethical questions in his article “Absolutism and Relativism in

Philosophy and Politics” (1971d[1948]), where he considers value relativism as part of a more

general position that he refers to as philosophical relativism and which he contrasts with

philosophical absolutism. He explains that, according to philosophical absolutism, there is an

absolute reality that is independent of human knowledge and includes absolute values, and in

this reality, there is absolute truth and falsity in both the factual and the evaluative domain

(ibid., 198-9). According to philosophical relativism, on the other hand, reality depends on the

knowing subject, and there is relative truth and falsity and relative values (ibid., 198-9).

He proceeds to point out that there is a close connection between philosophical absolutism

and political absolutism, where the latter is “a form of government where the whole power of

the state is concentrated in one single individual, namely, the ruler, whose will is law” (ibid.,

201), and that this means that political absolutism becomes “synonymous with despotism,

dictatorship, autocracy”, as in contemporary (1948) fascist, National Socialist, and communist

states (ibid., 201). And, he continues, there is also a close connection between philosophical

relativism and political relativism, where the latter is a form of government in which the state

is conceived “as a specific relation among individuals, established by a legal order” and is the

subject of international law, which in turn has been created in a democratic way by means of

treatises and custom (ibid., 203).

 17

We see here that Kelsen’s value relativism is part of what Kelsen calls philosophical

relativism, and that he appears to mean by ‘philosophical absolutism’ roughly what

philosophers call realism and by ‘philosophical relativism’ roughly what philosophers call

antirealism, except that he treats these metaphysical positions as including values, too, and that

he also believes that both philosophical absolutism and philosophical relativism have political

implications. The figure below illustrates Kelsen’s view, as expressed in this article, of the

relations between the metaphysical and the political positions in question.

metaphysical positions

philosophical absolutism philosophical relativism

(value absolutism) (value relativism)

political absolutism political relativism

Kelsen also considers metaethical questions in a 1956 article on natural law theory, in which

he objects to the view that moral values are absolute, arguing that since there are so many and

so different moralities, values are, and can only be, relative:

. . . relativistic and dualistic positivism [which Kelsen defends] does not assert that there are no

values, or that there is no moral order, but only that the values in which men actually believe are not

absolute but relative values, and that there is not one, but that there are many different moral orders

under whose effective validity men actually live and have always lived; but just because there are

so many and so different moral orders their validity—even if very effective—can be considered only

relative. (1971c[1956], 179)

 18

He returns to the question of the status of morality in the second edition of Reine Rechtslehre

(1960, 60-71), where he reiterates the view that there is no absolute morality, but only relative

moralities, and again emphasizes that relativism about values does not mean that there are no

values, but that there are values and that they are relative (ibid., 69). Turning to consider the

question of the moral justification of law, he points out that such justification presupposes that

there can be a contrast, or a contradiction (ein Gegensatz), between legal and moral norms, so

that legal norms can be morally good or morally bad (ibid., 69). But, he points out (ibid., 69-

70), what is of decisive importance is that there simply is no one morality, the morality, but a

number of very different moralities, so that any given legal order may correspond to one of

these different moralities, but not to other moralities, and that while a given legal order might,

on the whole, correspond to the moral views of one group, or class, in the relevant society,

especially the ruling class, it might not correspond to the moral views of some other groups, or

classes, in that society. Moreover, he points out (ibid., 70), moral views – views of what is right

or wrong, good or bad, of what can be justified and of what cannot be justified, etc. – keep

changing, so that a legal order that used to be considered morally good may come to be viewed,

by later generations, as morally bad.

We see that throughout his career Kelsen appears to have assumed that the obvious

metaethical choice is between metaethical relativism or, perhaps, emotivism, on the one hand,

and moral cognitivism in the shape of moral non-naturalism, on the other. We also see that

despite his apparent oscillation, especially in his earlier writings, between emotivism and

relativism, Kelsen’s mature metaethical view is best described as being relativistic. I conclude

that Kelsen’s considered view is, as Harman puts it (above in Section 4), that what is morally

right or wrong, good or bad, depends on which moral framework one has in mind, and that there

is no one moral framework that is objectively privileged as the true or valid one.
 19

I note, finally, that Raz (2009c, 299-302) and Vinx (2007, 134-44) have also reached the

conclusion that Kelsen is a relativist. Raz (ibid., 302), for example, maintains that Kelsen’s

version of relativism “is the familiar and incoherent one by which relativism is the non-relativist

position that each person’s values apply only to himself and each society’s values to itself.”

Unfortunately, Raz does not develop this claim, so it is not clear why he holds that Kelsen’s

relativism is a version of non-relativism. My impression, however, is that he is here attributing

to Kelsen (what he takes to be) an incoherent (because non-relativistic) version of what David

Lyons (1982, 211-3) calls agent’s-group relativism, which has it that an action is right if, and

only if, it is in keeping with the norms and values accepted by the agent’s group,

6. KELSEN ON NORMS AND LOGIC

I have argued that Kelsen is best understood as a metaethical relativist, and I have explained

that the relativist position is that there are indeed moral rights and duties, that some actions are

morally good and some morally bad, and, more generally, that moral claims can be true or false.

The difference between moral relativists and non-relativists is that relativists operate with the

idea of relative (moral) truth. And, as should be clear, this means that moral relativists do not

agree with emotivists and other noncognitivists, who maintain that moral claims are not, and

cannot be, true or false. For noncognitivists, as we have seen, moral claims are not statements

at all, since they do not assert or report anything, but express the speaker’s feelings, attitudes,

or preferences.

Given this difference between a relativist and a noncognitivist analysis of moral claims, one

is surprised to encounter in Kelsen’s discussion in the second edition of Reine Rechtslehre of

norm conflicts and the possibility of applying the laws of logic to normative discourse, the

noncognitivist claim that norms lack truth-value. Noting that the received opinion is that logical
 20

validity is to be defined in terms of truth (on this and related issues, see, e.g., Alchourrón and

Martino 1990; Navarro and Rodriguez 2014, 50-66), Kelsen points out that the laws of logic

can be applied to statements about norms, and that this means that they can be applied indirectly

to norms:

Since legal norms as prescriptions, i.e. as rules, permissions, authorizations, can be neither true nor

false, the question arises: How can logical principles, in particular the law of non-contradiction and

the inference rules, be used on the relations between legal norms (as the Pure Theory of Law has

always done), if, according to the traditional view, these principles may only be used on statements

that can be true or false. The answer to this question is: that logical principles, though not directly,

but indirectly, can be used on legal norms, provided that they can be used on the legal statements –

that can be true or false – that describe these legal norms. Two legal norms contradict one another,

and therefore cannot at the same time be asserted as valid, when both legal statements that describe

them contradict one another; and one legal norm can be deduced from another if the legal statements

that describe them can be part of a logical syllogism. (1960, 76-7) 12

12
Translated into English by Robert Carroll. The German original reads as follows: „Da Rechtsnormen als

Vorschreibungen, das heiβt als Gebote, Erlaubnisse, Ermächtigungen weder wahr noch unwahr sein können, ergibt

sich die Frage, wie logischen Prinzipien, insbesondere der Satz vom Widerspruch und die Regeln der

Sluβfolgerung auf das Verhältnis zwischen Rechtsnormen angewendet können (so wie dies die Reine Rechtslehre

seit jeher getan hat), wenn, traditioneller Anschauung nach, diese Prinzipien nur auf Aussagen anwendbar sind,

die wahr oder unwahr sein können. Die Antwort auf diese Frage ist: daβ logische Prinzipien, wenn nicht direkt, so

doch indirekt, auf Rechtsnormen angewendet können, sofern sie auf die diese Rechtsnormen beschreibende

Rechtssätze, die wahr oder unwahr sein können, anwendbar sind. Zwei Rechtsnormen widersprechen sich und

können daher nicht zugleich als gültig behauptet werden, wenn die beiden sie beschreibenden Rechtssätze sich

widersprechen; und eine Rechtsnorm kann aus einer anderen abgeleitet werden, wenn die sie beschreibenden

Rechtssätze in einen logischen Syllogismus eingehen können.“

 21

What is of interest in this context is Kelsen’s claim that norms lack truth-value, not the

claim that the laws of logic apply indirectly, but not directly, to normative discourse; and the

reason why this claim is interesting is that it suggests that Kelsen is really a noncognitivist,

despite the fact that he defends, or appears to defend, metaethical relativism in his various

discussions of moral norms and values.

What are we to make of this apparent inconsistency in Kelsen’s legal and moral philosophy?

My guess is that Kelsen mistakenly thought of the question of the truth-value of legal norms as

an isolated question without any metaethical implications, that he simply did not realize that

his claim that norms lack truth-value conflicts with his metaethical relativism. First, he offers

no discussion of the question of whether norms can have truth-value, but simply asserts that

they cannot. 13 This suggests to me that he simply did not see the connection between the claim

that norms lack truth-value and the claim that value statements can be true or false relative to a

given moral framework. Secondly, in his discussion in the second edition of Reine Rechtslehre

of Alf Ross’s noncognitivist account of claims of legal validity (1960, 216-7), he fails to see

that Ross offers precisely a noncognitivist account of such claims, and attributes to him instead

what appears to be an error-theoretical account of legal validity claims (on this, see Spaak 2015,

64-6). If Kelsen had been a noncognitivist, he surely would have been able to recognize Ross’s

account of claims of legal validity as a noncognitivist account of such claims.

I conclude that even though his commitment to noncognitivism as regards legal norms

means that, strictly speaking, his metaethical position is incoherent, we may plausibly take

Kelsen’s considered view to be that metaethical relativism is the true, or at least a defensible,

metaethical theory. For if we disregard his noncognitivism as regards legal norms, Kelsen’s

13
Kelsen (1991, 189-271) discusses at length the question of the applicability of the laws of logic to normative

discourse, but is content simply to assert that norms lack truth-value (ibid., 191-2).
 22

metaethical position makes up a reasonably coherent theory that has a considerable scope of

application and many interesting implications for his legal philosophy.

Let us now turn to consider the implications of this relativist metaethics for Kelsen’s legal

philosophy.

7. PURITY: THE SEPARATION OF LAW AND MORALITY

As we have seen (in Section 2), Kelsen insists that if legal science is to be a science, it must be

pure in the sense of excluding both natural (or empirical) and moral considerations. And, as we

have also seen (in Section 2), he holds that the reason why legal scholars must exclude natural

considerations from their analysis is that this is necessary to be able to account for the

normativity of law. As we shall now see, he offers in the first edition of Reine Rechtslehre

(1992, 18-9) two distinct reasons in support of the second aspect of the purity ideal, that is, the

separation of law and morality, namely, (i) that there is no absolute (non-relative) morality, and

(ii) that viewing law as necessarily moral will lead legal scholars and others to uncritically

legitimize (or else disqualify) the positive law. He returns to the reasons for espousing the

separation thesis in the second edition of Reine Rechtslehre, where he reiterates claims (i) and

(ii):

[t]he thesis that law in its essence is moral – i.e. that only a moral social system is law – is rejected

by the Pure Theory of Law not only because this thesis presupposes an absolute theory of morals,

but also because in its actual application through the dominant jurisprudence of a certain legal com-

munity it amounts to an uncritical legitimization of the governmental coercive order that constitutes

this community. For it is assumed as self-evident that one’s own coercive order is law. /…/ But if

one’s own coercive order is law, it must follow from the thesis that it is also moral. Such a

legitimization of positive law might, despite logical inadequacy, obtain good political advantages.

From the viewpoint of legal science it is inadmissible. For the task of legal science is not to legitimize
 23

the law, is not at all to justify – neither through an absolute nor through a relative morality – the

normative order comprehended and described by it. (Kelsen 1960, 71) 14

As Kelsen indicates in the quotation above, the absence of a non-relative morality is a

sufficient reason to exclude moral considerations from legal science, as is the uncritical

legitimization (or disqualification) of the positive law, though the latter problem would still

remain, on a natural law analysis, even if there were such a thing as a non-relative morality.

That is to say, as Kelsen sees it, each claim taken separately provides a sufficient reason to

accept the second aspect of the purity ideal, that is, the separation thesis. I accept both Kelsen’s

claims, and I believe the second claim would hold good, even if one were to make a distinction

between pro tanto (or prima facie) and conclusive (or all-things-considered) moral reasons, as

Kelsen does not, and maintain that the uncritical legitimization of the law would only be a pro

tanto legitimization.

14
Translated into English by Robert Carroll. The German original reads as follows: „Die These, daβ das Recht

seinem Wesen nach moralisch ist, das heiβt: daβ nur eine moralische Gesellschaftsordnung Recht ist, wird von

der reinen Rechtslehre nicht nur darum abgelehnt, weil diese These eine absolute Moral voraussetzt, sondern auch

darum, weil sie in ihrer tatsächlichen Anwendung durch die in einer bestimmten Rechtsgemeinschaft herrschenden

Jurisprudenz auf eine unkritische Legitimierung der diese Gemeinschaft konstituierenden staatlichen

Zwangsordnung hinausläuft. Denn daβ die eigene staatliche Zwangsordnung Recht sei, wird als selbstverständlich

vorausgesetzt. /… / Da aber die eigene Rechtsordnung Recht ist, muβ sie, der These zufolge, auch moralisch sein.

Eine solche Legitimierung des positiven Rechts mag, trotz logischer Unzulänglichkeit, politisch gute Dienste

leisten. Rechtswissenschaftlich ist sie unzulässig. Denn die Rechtswissenschaft hat das Recht nicht zu legitimieren,

hat die von ihr nur zu erkennende und zu beschreibende normative Ordnung überhaupt nicht – weder durch eine

absolute noch durch eine relative Moral – zu rechtfertigen.“

 24

8. NATURAL LAW THEORY

There are, then, two sides to the ideal of purity, and the second aspect, the separation of law

and morality, is identical to the separation thesis of legal positivism. To defend the second

aspect of the purity ideal is therefore to defend legal positivism, or at least one of its central

tenets; and I shall therefore not discuss Kelsen’s defense of legal positivism separately. I shall,

however, discuss Kelsen’s critique of natural law theory, because the arguments adduced by

Kelsen in his critique of natural law theory are not precisely the same arguments as the ones he

adduces in support of the separation thesis. In fact, Kelsen raises at least five distinct objections

to natural law theory, namely, (i) that natural law theorists commit the fallacy of trying to

deduce an ‘ought’ from an ‘is,’ (ii) that if natural law existed, positive law would be superfluous,

(iii) that natural law theory is premised on contradictory assumptions about human nature, (iv)

that natural law theory presupposes an absolute (non-relative) morality, and (v) that acceptance

of natural law theory would lead to an uncritical legitimization (or disqualification) of the

positive law; but since we have already (in Section 7) considered objections (iv) and (v), I will

now focus on arguments (i) – (iii).

As regards the first objection, Kelsen maintains in “The Natural Law Doctrine Before the

Tribunal of Science” (1971b[1949]), that natural law theorists mistakenly assume that they can

deduce an ‘ought’ (legal norms) from an ‘is’ (nature), or, alternatively, that they confuse legal

norms with laws of nature. He reasons, more specifically, that natural law theorists tacitly

assume that value (or a divine will) is immanent in nature, that this is a scientifically illegitimate

assumption, and that in reality natural law theorists (will have to) assume that one can deduce

an ‘ought’ from an ‘is,’ which is to make a logical mistake (ibid., 141-2).

We see here that Kelsen objects that natural law theory violates Hume’s law, understood as

the logical thesis that one cannot deduce a normative (or an evaluative) conclusion from a
 25

(consistent) set of factual premises (on Hume’s law, see Pigden 2010). I do not find this

particular objection persuasive, however. As far as I can tell, most prominent natural law

thinkers have not been aiming to deduce a normative conclusion from purely descriptive

premises about human nature or anything else, nor have they been forced, on pain of absurdity,

to do so, as Kelsen implies. For example, John Finnis explains that Thomas Aquinas thought of

the first principles of natural law as being self-evident and indemonstrable and in no way as

inferences or derivations from premises about nature, including human nature:

. . . Aquinas asserts as plainly as possible that the first principles of natural law, which specify the

basic forms of good and evil and which can be adequately grasped by anyone of the age of reason .

. . are per se nota (self-evident) and indemonstrable. They are not inferred from speculative

principles. They are not inferred from facts. They are not inferred from metaphysical propositions

about human nature, or about the nature of good and evil, or about ‘the function of a human being,’

nor are they inferred from a teleological conception of nature or of any other conception of nature.

They are not inferred or derived from anything. They are underived (though not innate). (1980, 33-

4. Footnotes omitted.)

As regards the second objection, Kelsen explains that natural law theory holds that there

exists over and above the imperfect, positive law, a higher and absolutely binding natural law,

established by a divine authority, and that positive law is justified and valid (binding) if and

insofar as, and only if and insofar as, it corresponds to this higher law. As Kelsen sees it,

however, natural law theory thus conceived renders positive law superfluous (1971b, 142):

“Faced by the existence of a just ordering of society, intelligible in nature, the activity of

positive-law makers is tantamount to a foolish effort to supply artificial illumination in bright

sunshine.”

I do not find this objection persuasive either. First, Kelsen does not carry out the argument,

but simply asserts that if there were a higher law, positive law would be superfluous. This is
 26

not enough, however. For hardly any prominent natural law theorist would maintain that the

law of nature is sufficiently detailed to render positive law redundant. The idea of natural law

theorists must reasonably be that the law of nature is a matter of general and fundamental moral

values and principles, which in many respects needs to be supplemented by positive law. For

example, as we have just seen, Finnis explains that Aquinas held that the first principles of

natural law, which specify the basic forms of good and evil, are self-evident and

indemonstrable. However, positive law must encompass much more than principles that specify

the basic forms of good and evil, for example, traffic regulations, rules of civil and criminal

procedure, and public law in general.

The third objection (ibid., 142-4) is that natural law thinkers have tended to involve

themselves in a contradiction when trying to explain why positive law is not superfluous or,

more generally, why we need natural law. For, Kelsen points out, they assume, on the one hand,

that human beings need positive law in order to make civilization possible, and, on the other

hand, that the law of nature is rooted in human nature. This means, as he sees it, that natural

law thinkers assume that human nature is simultaneously bad (because if human nature were

not bad, humans would not need law) and good (because if human nature were not good, natural

law would not be good either), and that there is therefore a contradiction in natural law theory.

I find Kelsen’s objection interesting. I do not, however, believe it is well founded, because

I believe that Kelsen over-simplifies the issues involved. For, it seems to me, one could

plausibly argue, first, that one reason why humans need positive law, as I believe we do, is that

we encounter a large number of coordination problems, which could not easily be solved

without the help of legal measures, and, secondly, that even if we do need positive law at least

partly because we are bad, such badness need not be part of human nature, but can be explained
 27

by reference to individual qualities, or social circumstances, or both. 15 And if our badness –

assuming it exists – is not part of human nature, it will not taint the law of nature. Hence no

contradiction will arise.

Note, finally, that these five objections are logically independent of each other, in the sense

that each objection can be developed without invoking any of the other objections, and that

each objection, if successful, is sufficient to undermine, or at least damage, natural law theory.

And while I reject objections (i)-(iii), I accept objections (iv) and (v). Hence, I agree with Kelsen

that natural law theory should be rejected.

9. VALUE-FREE SCIENCE

Kelsen maintains that since science, properly conceived, is a matter of cognition and aims at

explanation, it must be value-free in the sense that its findings must not in any way depend on

moral or political evaluations. The reason is that value statements, unlike scientific statements,

are subjective, in that they depend on the personality of the person making the evaluation and,

in particular, on the emotional element of his or her consciousness:

Scientific statements are judgments about reality; by definition they are objective and independent

of the wishes and fears of the judging subject because they are verifiable by experience. They are

true or false. Value judgments, however, are subjective in character because they are based, in the

15
For example, Noam Gur (2018, 110-30) points out in his book on legal directives and practical reasons that

we are all subject to certain biases – such as self-enhancement bias, self-serving bias, the availability heuristic, and

hyperbolic discounting – which cause us to systematically misjudge in our own favor the strength of reasons for

and against actions in cases that concern us.

 28

last analysis, on the personality of the judging subject in general, and on the emotional element of

his consciousness in particular. (1971e [1951], 350) 16

Kelsen (ibid., 355) proceeds to point out that this means that science must be concerned

with statements about means, as distinguished from statements about ends, explaining that

whereas statements about means are not value statements at all, but causal statements,

statements about ends are precisely (subjective) value statements; and, he adds, to claim that X

is an ultimate end involves presupposing a basic norm that constitutes the value of X.

While recognizing that social-scientific investigations may be harder to handle in a

scientific manner than natural-scientific investigations, Kelsen (ibid., 356) insists that the

principle of objectivity (as he calls it) – roughly, that scientific statements are objective because

they are statements about reality that can be verified by experience and are therefore

independent of the desires and fears of the judging subject (ibid., 355) – applies to the social

sciences, too. What is important for social scientists, he explains, is to distinguish sharply

between reporting and endorsing the norms and values they are dealing with. Focusing

especially on normative sciences, like ethics and jurisprudence, whose study objects are made

up of norms and values, he proceeds to argue that jurisprudence conceived as a science can

have nothing but positive norms for its study object (ibid., 360). For, he explains, positive norms

are based on facts, such as the usual sources of law, that is, legislation, precedent, or custom, in

combination with the social efficacy of the legal order (ibid., 361): “In describing its objects as

norms, the science of law refers to these facts; and the positivity of the law consists just in the

relation to these facts.” As we can see, Kelsen is here espousing what contemporary legal

16
Note that Kelsen’s claim about the subjective nature of value judgments mentions both ‘the personality of

the judging subject’ and the ‘emotional element of his consciousness’, which suggests emotivism rather than

relativism, and that in this respect it is reminiscent of Kelsen’s claim about value judgments in Kelsen (1999, 6-

8), considered above (in Section 5).

 29

positivists refer to as the social thesis, in its strong version, which has it that law is a matter of

social facts and nothing else (Raz 2009a[1979], 38-40), and the social efficacy thesis, which

has it that the validity (or existence) of law presupposes that the law is socially efficacious (Hart

2012[1961], 116-7).

Continuing on the same theme – that of the need for scholars in the normative sciences to

distinguish sharply between reporting and endorsing the norms and values they are dealing with

– Kelsen points out that the principle of objectivity means that a normative science must be a

science that deals in conditional statements, and only in conditional statements, in the following

way: A has a duty to do X, or a right to do Y, only if the basic norm has been presupposed, or,

in explicit conditional form: If A has a duty to do X, or a right to do Y, then the basic norm has

been presupposed. For, he adds, it is beyond such a science to determine whether any non-

positive norm, such as the basic norm, is valid (1971e, 360-1). Here he emphasizes the

importance of the distinction between legal norms (Rechtsnormen), which are normative, and

rules of law (Rechtssätze), which are descriptive, pointing out that whereas the legislature deals

in legal norms, legal scholars deal, and, in order to be scientific, have to deal, in rules of law:

If the propositions by which legal science describes its object are called “rules of law,” they must be

distinguished from the legal norms described by the science of law. The former are instruments of

the legal science, the latter are functions of the legal authority. In describing the law by rules of law,

the science of law does not exercise the function of a social authority, which is a function of will,

but the function of cognition. Although the legal norms issued by the legal authority may be

considered as constituting a specific value, namely the legal value, the rules of law are not judgments

of value in any possible sense of this term, just as the laws of nature by which the natural science

describes its object are not value judgments. (Ibid., 363. See also 1999, 45; 1960, 73-7)

One may, however, wonder what, exactly, a rule of law in Kelsen’s sense is. Is it a second-

order legal statement, which is true or false depending on whether it describes the relevant legal
 30

norm(s) correctly, or is it perhaps a detached legal statement in Joseph Raz’s sense (2009c),

that is, a normative statement made from a certain point of view – namely, that of the legal

order – that the speaker does not accept? What Kelsen says about conditional statements

suggests that he has in mind second-order legal statements, not detached statements, and his

brief discussion of rules of law in General Theory of Law and State (1999, 45) points in the

same direction: “The legal norms enacted by the law creating authorities are prescriptive; the

rules of law formulated by the science of law are descriptive. It is of importance that the term

‘legal rule’ or ‘rule of law’ be employed here in a descriptive sense.” The emphasis on

description (both in the block quotation above and in General Theory) is important here. For,

as we shall see (in Section 12), if rules of law are descriptive, they cannot be detached legal

statements, which are normative; and if they cannot be detached legal statements, they cannot

play the role contemplated by the theory of the basic norm in accounting for the normativity of

law, namely, that of illustrating the use of normative legal language on the part of judges,

attorneys, and, in particular, legal scholars.

10. DEMOCRACY 17

Kelsen (1971d[1948], 206-7) maintains that relativism can justify giving priority to democratic

principles over substantive moral considerations when it comes to legislation and political

decision-making in general. He reasons, more specifically, that if, as relativism has it, what is

right today (because the majority favors it) may be wrong tomorrow (because the majority may

come to reject it), those who are in the minority today, and who are therefore wrong, must have

a chance to become – through the democratic procedure – the majority tomorrow and thus to

be right:

17
The text in this section is an expanded version of the text in Spaak (2020, 273-4).
 31

Solely because of this possibility, which only philosophical relativism can admit – that what is right

today may be wrong tomorrow – the minority must have a chance to express freely their opinion

and must have full opportunity of becoming the majority. Only if it is not possible to decide in an

absolute way what is right and what is wrong is it advisable to discuss the issue and, after discussion,

submit it to a compromise. (Ibid., 207)

Kelsen’s reasoning on this matter is rather murky, but he appears to be thinking of relativism

both as a sufficient and as a necessary condition for democracy: If relativism is true, we should

give priority to democratic principles over substantive moral considerations, and if we should

give priority to democratic principles over substantive moral consideration, then relativism is

true. As I read it, whereas the first sentence in the quotation suggests that relativism is a

necessary condition for democracy, the second sentence suggests that it is really the absence of

moral non-naturalism, not the presence of relativism, that is necessary to give priority to

democratic principles over substantive moral considerations; and in both cases, Kelsen very

likely intends relativism to be also a sufficient condition for democracy. I shall focus in what

follows on the claim that relativism is a sufficient condition for democracy, because I find this

claim to be more plausible than the claim that it is a necessary condition for democracy.

Here is a formalization of Kelsen’s argument thus conceived, as I understand it, in the

language of propositional logic (R stands for “Relativism is true”; W stands for “What is morally

right today may be morally wrong tomorrow”; D stands for “Those who are in the minority

today have the chance to become, through the democratic procedure, the majority tomorrow; O

stands for “It ought to be the case that”): 18

18
This is a matter of standard propositional logic, not deontic propositional logic, because the inference does

not involve any specific deontic axioms, such as (OA → PA) or O(OA → A), or deontic rules of inference, such

as O(A → B) → (OA → OB).

 32

(1) R Premise Kelsen’s position

(2) R → W Premise The quotation

(3) W → OD Premise The quotation

(4) W 1, 2 Modus ponens

(5) OD 3, 4 Modus ponens

I cannot say that I find Kelsen’s line of reasoning convincing, however. While the argument,

as formulated above, is logically valid, it is not sound, for not all premises are true. Premise (3),

in particular, is problematic. Of course, one may object to both premise (1) and premise (3),

though not to premise (2), which only makes more specific the content of (1); but I shall grant

Kelsen the truth of (1), and shall focus instead on (3).

First, there is the question of how precisely to formulate (3). Should we take the relevant

moral obligation – to see to it that those who are in the minority today have the chance of

becoming, through the democratic procedure, the majority tomorrow – to be a pro tanto

obligation or an all-things-considered obligation? That is to say, should the deontic operator,

O, take wide scope, O(W→D), or narrow scope, (W→OD)? 19 In order for the inference to be

logically valid, it must take narrow scope, which is why I have formulated the premise in this

way. As a result, however, the obligation becomes an all-things-considered obligation. But

while this appears to be in keeping with Kelsen’s general view, that non-relative (which he calls

19
The reason why wide-scope analysis, that is, O(A→B), corresponds to the idea of a pro tanto obligation is

that in this case the agent can satisfy the obligation not only by performing B, but also by not performing A

(because the material conditional is such that A→B is false if A is true and B false, and true otherwise). In the case

of narrow-scope analysis, if the agent has performed A, or if otherwise A is the case, the agent has only one option,

namely, to perform B. On this, see Navarro and Rodriguez 2014, 99-100).

 33

‘absolute’) moral rights and obligations have precisely all-things-considered normative force, 20

it would be more plausible to conceive of the obligation as a pro tanto obligation. For this would

mean that it can in some cases be overridden by other, more weighty considerations. However,

as we have just seen, this also means that the deontic operator would have to take wide scope.

If it did, however, the inference would not be logically valid. Since, on the wide-scope analysis,

(4) would not match the antecedent of (3), modus ponens could not be applied to (3) and (4) to

yield the conclusion (5): OD. 21

Secondly, the very content of (3) is problematic, regardless of whether the relevant

obligation is conceived as a pro tanto obligation or as an all-things-considered obligation. Why

should the fact, assuming it is a fact, 22 that what is morally right today may be morally wrong

tomorrow, mean that the minority today ought morally to have the chance of becoming, through

the democratic procedure, the majority tomorrow? As Kelsen would be the first to point out,

given his theory of the basic norm (above in Section 2) and his critique of natural law theory

(above in Section 8), a set of (consistent) descriptive premises cannot entail a normative (or an

evaluative) conclusion. What, then, is the connection between the antecedent and the

consequent in (3)? Kelsen does not discuss this question, but is content to say (as we saw in the

quotation above) that only if we cannot decide “in an absolute way what is right and what is

wrong, is it advisable to discuss the issue and, after discussion, to submit it to a compromise.”

This is not much of an argument, however. Perhaps he means to say that since what is right is

20
This has been observed by Joseph Raz. See Raz (2009c, 299).
21
For a discussion of how to formulate conditional obligations in deontic logic, see Navarro and Rodriguez

(2014, 91-100).
22
I take metaethical relativism to be a descriptive thesis – if it were a normative (specifically, a moral) thesis,

it would apply to itself and would have the status of a relative truth at most. For a discussion of the status of

metaethical relativism, see Harrison (1982, 238-41).

 34

what the majority believes is right, and since majorities shift, fairness requires that the members

of the minority today have the chance to become, through the democratic procedure, members

of the majority tomorrow, and thus to be right. The question, however, is whether fairness really

requires that this be so. Kelsen does not explain why it would be so; and I can see no good

reason to believe that it is so.

Thirdly, even if a descriptive premise could entail a normative conclusion, or if fairness did

require a normative conclusion, such a conclusion could – contrary to what Kelsen appears to

believe – only express a non-relative ‘ought.’ For, if metaethical relativism is true, as Kelsen

assumes, there can be no non-relative ‘ought’ (on this, see Williams 1982).

I have been arguing in this section that Kelsen (mistakenly) believes that a commitment to

relativism supports a commitment to democracy. Could he have reasoned in an analogous way

on the basis of noncognitivism? I do not think so. Since, on a noncognitivist analysis, there is

no moral yardstick that is independent of the individual, Kelsen could not coherently have

argued that what is right today may be wrong tomorrow. As far as moral truth is concerned,

noncognitivism is on a par with error theory, which has it that all (positive) moral statements

are false.

11. TOLERANCE AS FREEDOM OF THOUGHT

Kelsen maintains, as we have just seen, that what is right today may be wrong tomorrow, and

that therefore the members of the minority must not only have full opportunity to become the

majority, but must also have a chance to express freely their opinion. And he explains (1971a,

22) that the principle of tolerance that is “involved in a relativistic philosophy of justice”

requires “the sympathetic understanding of the religious or political beliefs of others—without

accepting them, but not preventing them from being freely expressed.” That is to say, as Kelsen
 35

sees it, relativist tolerance amounts to freedom of speech, or as he labels it, freedom of thought.

As he puts it (ibid., 22-3), “[i]t stands to reason that no absolute tolerance can be commended

by a relativistic philosophy of values; only tolerance within an established legal order

guaranteeing peace by prohibiting and preventing the use of force among those subjected to the

order, but not prohibiting or preventing the peaceful expression of ideas. Tolerance means

freedom of thought.”

I do not find Kelsen’s reasoning about tolerance convincing, however. As we have already

seen, metaethical relativism does not and cannot entail any principle of democracy or tolerance;

and even if it could entail such a principle, or if such a principle could be established in some

other way, it could not be a non-relative principle, since this would be in violation of the very

theory that supported it, that is, Kelsen’s relativism. Moreover, Kelsen appears to mean by

‘relative’ or ‘non-absolute’ tolerance, not tolerance from the point of view of a certain, relative

moral system, as one would expect of a relativist, but rather non-relative tolerance of the

peaceful expression of ideas within an established legal order. This equivocation leads him to

mistakenly believe that he is defending a principle of tolerance that has relative normative force,

when he is really defending a principle of tolerance that has non-relative force, but a limited (or

“relative”) scope of application. As a result, he makes the mistake not only of attempting to

deduce a normative conclusion from factual premises in violation of Hume’s law (unless he

goes with the fairness argument, which he does not even mention), but also of attempting to

deduce a principle with non-relative moral force from, and in violation of, his relativist

metaethics.
 36

12. METAETHICAL RELATIVISM AND JUSTIFIED NORMATIVITY

We have seen (in Section 2) that Kelsen defends the theory of the basic norm, because he holds

that law is necessarily normative in the sense of justified normativity. Of course, the reason

why it is plausible to attribute to Kelsen the conception of justified normativity is precisely that

he defends the theory of the basic norm. For to argue that one must presuppose the basic norm

because one cannot deduce an ‘ought’ from an ‘is’, is to presuppose that one is concerned with

the ‘ought’ of non-relative obligation, 23 and this in turn is to presuppose that there are normative

(or justifying) reasons for action that depend neither on the agent’s beliefs or desires, nor on the

beliefs or desires of the members of the agent’s group (on this, see Joyce 2001, chap. 2). And

this is to presuppose the existence of justified normativity.

One may well wonder, however, whether Kelsen can coherently hold both that law is

normative in the sense of justified normativity and that metaethical relativism is true. For while

metaethical relativists, too, recognize the existence of rights and obligations, their view is

precisely that such rights and obligations depend on human conventions (see, e.g., Harman

1982, 189-90), or at least on the views and behaviors of the relevant group of people, and that

there is no other type of moral normativity. Hence it seems that if Kelsen accepts metaethical

relativism, he ought to abandon the view that law is necessarily normative in the sense of

justified normativity.

Why, then, is it that Kelsen operates with a conception of normativity that, according to the

metaethical theory he defends, is nowhere instantiated? As far as I can tell, Kelsen has never

addressed this issue. He is, however, careful to point out that in introducing the theory of the

23
True, noncognitivists, too, can accept Hume’s law. But, as we have seen, I argue that Kelsen is not a

noncognitivist.
 37

basic norm, he is only aiming to account for the content of (what he refers to as) the juristic

consciousness:

By formulating the basic norm, we do not introduce into the science of law any new method. We

merely make explicit what all jurists, mostly unconsciously assume, when they consider positive

law as a system of valid norms and not as a complex of facts, and at the same time repudiate any

natural law from which positive law would receive its validity. That the basic norm really exists in

the juristic consciousness is the result of a simple analysis of actual juristic statements. The basic

norm is the answer to the question: how – and that means under what condition – are all these juristic

statements concerning legal norms, legal duties, legal rights, and so on, possible? (1999, 116-7)

The reference to the juristic consciousness does not solve the problem, however. For either

the juristic consciousness involves the conception of justified normativity, or it does not. If it

does, it is, according to Kelsen, mistaken, because there is no justified normativity; if it does

not, why attribute this conception of normativity to it? Why, then, does Kelsen base his theory

of the basic norm, and, therefore, his theory of law, on an interpretation of the juristic

consciousness that either presents the juristic consciousness as mistaken or else describes it

incorrectly?

The answer to this question, I believe, is that the theory of the basic norm aims to account

for the normativity of law, conceived not (a) as a necessary property of law, but (b) as the use

of normative legal language on the part of judges, attorneys, legal scholars, and others (on this,

see Raz 1990, 170). As I have argued elsewhere (2018, 14-5), whereas it is difficult to see how

a presupposition on the part of judges, attorneys, legal scholars, and others could explain the

normativity of law conceived as a necessary property of law, it is not difficult to see how such

a presupposition could explain the normativity of law conceived as the use of normative legal

language on the part of those who make the presupposition. As I see it, then, the reference to

the juristic consciousness is really a reference to the use of normative legal language on the part
 38

of judges, attorneys, legal scholars, and others, and one who is presupposing the basic norm is

aiming to elucidate the conception of normativity involved in this use of language, whether it

is mistaken or not. For, on this analysis, the use of normative legal language on the part of these

groups of people is all there is to the normativity of law.

The suggested interpretation of Kelsen’s theory of the basic norm raises at least three

questions, however. First, one may wonder whether it is really fruitful to conceive of the

problem of the normativity of law as the problem of accounting for the use of normative legal

language on the part of judges, legal scholars, and others, especially if one also believes that

this use of normative legal language rests on a false metaethical theory, that is, moral non-

naturalism. I myself doubt it, and I note that the contemporary debate about the normativity of

law, just like the natural law/legal positivism debate, is usually taken to concern the normativity

of law in the sense of a necessary property of law (see, e.g., the essays in Bertea and Pavlakos

2011).

Secondly, the interpretation appears difficult to square with Kelsen’s insistence on the

distinction (considered above in Section 9) between legal norms and rules of law. For if rules

of law are descriptive, as Kelsen appears to believe they are, they cannot also be detached legal

statements, which are normative; and if they are not detached statements, they cannot play the

role in an account of the normativity of law contemplated by the theory of the basic norm

according to interpretation (b), namely, that of illustrating the use of normative legal language

on the part of judges, attorneys, legal scholars, and others. In my view, the easiest way to solve

this problem would be for Kelsen to give up the view that rules of law are descriptive and adopt

instead Raz’s theory of detached legal statements (Raz 1990, 170-7; 2009b, 140-3).

Thirdly, given that rules of law are thus central to Kelsen’s account of the normativity of

law, if Kelsen did adopt the view that rules of law are detached legal statements, the question

would arise whether judges, attorneys, and legal scholars all make detached legal statements.
 39

For if it turned out that it is primarily the members of one (or two) of these groups, say, legal

scholars, who make such statements, Kelsen’s account would be incomplete, as it would then

fit only the use of normative legal language by the members of this particular group. Of course,

Kelsen quite naturally thinks they all use such language, 24 and it is worth noting that Hart agrees

with Kelsen on this. As Hart puts it (1982, 145), “[s]uch normative statements are the most

common ways of stating the content of the law, in relation to any subject matter, made by

ordinary citizens, lawyers, judges, or other officials, and also by jurists and teachers of law in

relation to their own or other systems of law.” He (and Kelsen) may, of course, be right about

this, but I am by no means convinced. The claim strikes me as rather speculative. For one thing,

I do not think it is clear just how one is to tell whether a person is making a detached (normative)

legal statement or a second-order (descriptive) legal statement. Given that the explicit language

used is no certain guide to the meaning of any statement, the natural conclusion is that one

would have to inquire into the intentions of the person making the statement. Undertaking such

an inquiry would not be easy, however, and it seems safe to assume that neither Kelsen nor Hart

ever did undertake such an empirical investigation.

13. KELSEN AS A MORAL FICTIONALIST 25

I mentioned above (in Section 2) that in the last, skeptical phase of the development of the Pure

Theory of Law, Kelsen gave up the view that the basic norm was a hypothesis, claiming instead

that it was a genuine fiction in the sense of Hans Vaihinger’s philosophy of As-If. Having

maintained for a long time that the basic norm is the meaning of an act of thinking, Kelsen had

now arrived at the conclusion that the basic norm is the meaning of an act of will, because (he

24
For a discussion of Kelsen’s thoughts on who makes detached legal statements, see Raz (2009b, 141-3).
25
For a helpful discussion of Kelsen’s view of the basic norm as a fiction, see Stewart (1980).
 40

reasoned) there is a necessary connection between ‘ought’ (Sollen) and will (Wollen), so that

there can be no norm without an act of will whose meaning the norm is (1965, 585). He then

argued that this means that presupposing the basic norm necessarily involves presupposing an

authority, over and above the “fathers” of the historically first constitution, an authority whose

act of will has the basic norm as its meaning (ibid., 585). But, he pointed out, this in turn means

that the presupposition of the basic norm involves the presupposition of an authority that, ex

hypothesi, could not exist (because if there really had been an authority over and above the

“fathers” of the historically first constitution, that constitution would not have been the

historically first constitution), and this in turn means that the presupposition of the basic norm

involves a contradiction (ibid., 585). The problem, then, is that if it is necessary not only that a

norm, including the basic norm, is the meaning of an act of will, but also that the basic norm

refers to the historically first constitution, then it will both be necessary that there is an authority

whose act of will has the basic norm as its meaning and impossible that there is such an authority

and, therefore, possible that there is no such authority. Kelsen (ibid., 585) therefore concluded

that the basic norm is best described as a genuine fiction in Vaihinger’s sense, that is, as an aid

to thought (ein Denkbehelf) that includes a contradiction, which is to be used when one cannot

reach one’s aim of thought (Denkzweck) with the materials available – the aim of thought being

in this case to conceive of law as a system of valid norms.

This suggests that we may think of Kelsen in his late, skeptical phase as a moral fictionalist,

because his idea is that one may, in order to reach one’s aim of thought, presuppose the basic

norm, that is, presuppose that law is normative in the sense of justified normativity, while

believing that such normativity is nowhere instantiated. That is to say, on a fictionalist analysis,

to presuppose the basic norm is to treat the validity (or normativity) of law as a fiction, and
 41

therefore, on Kelsen’s analysis, to treat legal phenomena in general as fictions, 26 and to do so

because it is useful.

As we have seen (in Section 3), fictionalism thus conceived assumes a distinction between

the semantics and the pragmatics of moral (or legal) discourse, where the semantics is

representational and the pragmatics is noncognitivist (or expressivist). Thus, one who makes

first-order statements about legal rights and duties, etc., will not, strictly speaking, be asserting

their existence, but will be pretending to do so, and will be communicating something other

than the semantic content of such statements, say, a positive attitude to the existence of the legal

order. So having presupposed the basic norm, one can make first-order legal statements, such

as “you have a legal obligation to respect other people’s property,” or “you have a legal right

to speak out on controversial topics,” that are false, yet useful, because in doing so one is

communicating, say, the above-mentioned attitude. The reason why it would be useful to

communicate such an attitude is that it would contribute to the maintenance of the legal order,

which guarantees peace, coordinates behavior, etc.; and it would contribute to the maintenance

of the legal order because it would contribute to making the legal order socially efficacious by

motivating people to respect the law, inter alia, by making it more difficult for them to engage

in practical irrationality – that is, to neglect to do what they legally ought to do because of

weakness of the will, considerations of self-interest, etc.

As we have seen (in Section 12), Kelsen explains that the theory of the basic norm is meant

to account for the content of the juristic consciousness, in the sense of making explicit what all

jurists unconsciously assume in their legal thinking. Given this view of the function of the basic

norm, it is tempting to classify Kelsen as a hermeneutic rather than a revolutionary fictionalist.

On this analysis, the claim that the basic norm is a fiction is meant to rationally reconstruct our

26
On Kelsen’s analysis, the existence of various legal phenomena presupposes the existence of legally valid

norms. On this, see Section 2 above and Kelsen (1999, 35, 116). See also Stewart (1980, 208).
 42

legal thinking as it actually is, not to advocate a change of our current ways of thinking about

legal matters. And if Kelsen is a hermeneutic fictionalist, it will be important to be clear about

who is and who is not a member of the group of agents who are said to presuppose the basic

norm. Although Kelsen is not crystal clear on this point, the context suggests that he is primarily

concerned with legal professionals.

But, one may wonder, does the theory of the basic norm, conceived as a version of

hermeneutical fictionalism, offer a plausible account of the content of the juristic

consciousness? Do legal professionals really think of legal validity (in Kelsen’s sense) as a

fiction? I doubt it. To maintain that they do is to say that they are willing to entertain now and

then the notion that legal validity is nothing but a fiction. I am, however, disinclined to believe

that judges, attorneys, legal scholars, prosecutors, chiefs of police, and others who engage in

legal thinking conceive of legal validity (or normativity) as a fiction. I find it more plausible to

say that they are believers in legal validity, and that they will cite a variety of reasons in support

of this belief. For example, they might point out that the existence of a legal order is a necessary

condition for the existence of civilized society, or that they live in a democracy, or, at any rate,

that the legal order they live under is reasonably well-functioning and by no means grossly

immoral. Note that what they (typically) believe is that the law of the land is actually, not

necessarily, normative, so that Austrian jurists, say, believe that Austrian law is actually, not

necessarily, normative. That is to say, they are concerned not with law in general, that is, with

the concept of law, but with a particular instance of law.

Moreover, (and now I will be discussing not only legal professionals, but also law subjects

in general), one may well wonder whether a policy of treating legal rights and duties as fictions

would be likely to help motivate people to respect the law and thus contribute to the social

efficacy of the legal order. If people were to believe that there are no legal rights or duties, how
 43

likely would they be to respect, say, the code of procedure, the traffic law, or the tax law? 27 For

my part, I am not convinced that a fictionalist stance on the part of legal professionals and law

subjects would contribute to the maintenance of the legal order. As we have seen (above in

Section 4), Richard Joyce argues that the difference between a moral fictionalist and a moral

believer is that the moral fictionalist, but not the moral believer, is disposed to deny that

anything is really morally right or wrong, good or bad, when placed in his most critical context.

One may well wonder, though, whether legal professionals and law subjects would be able to

compartmentalize their legal thinking in this way, and thus avoid that their disposition to deny

in their most critical context that there are legal rights and duties will influence their legal

thinking and undermine their motivation to obey or apply the law. If doing this turned out to be

psychologically impossible, or at least very difficult, a group of people who treated the validity

of law as a fiction might not be able to achieve the goal of maintaining a legal order; and this

in turn means that treating legal validity as a fiction would not be useful.

One might, however, object to the idea that Kelsen is a hermeneutical fictionalist, that even

though he asserts that the theory of the basic norm aims to account for the content of the juristic

consciousness, he is not really saying that jurists and citizens are already treating legal validity

as a fiction, but only that their presuppositions of the basic norm are false. On this analysis,

Kelsen would be an error theorist as regards the presupposition of the basic norm; and insofar

as he is advocating fictionalism at all, he would be better seen as advocating revolutionary

rather than hermeneutic fictionalism. I shall, however, leave it an open question which

27
Note that the existence of sanctions is not relevant here. If the fictionalist were to point to an independent

aversion to sanctions on the part of the law subjects as the main, or at least an important, reason why they obey

the law, he would be undermining the fictionalist account of law. For he would then in effect be arguing that

thinking of legal entities and properties as fictions would not be useful, since the decisive consideration would

instead be the independent aversion to sanctions.

 44

interpretation of the theory of the basic norm offers the best fit with Kelsen’s writings on the

topic.

Note, finally, that the above-mentioned difficulty that legal fictionalism might undermine

people’s respect for the law is really just a special case of a difficulty that plagues fictionalist

accounts in general. For fictionalism to be a true account of an area of discourse, the following

must be true. On the one hand, a person must be sufficiently willing to “step out of” the fiction

and consider her situation from an external viewpoint – if she is not sufficiently willing to step

out of the fiction, she will simply be a moral believer who is in error. On the other hand, if she

is too willing to step out of the fiction, she will likely undercut the efficacy of the fiction. For

the more likely she is to entertain the notion that the fiction is precisely a fiction, the more likely

she is to be influenced in her ordinary life by this insight; and this in turn means that she will

be less likely to achieve the benefits of treating the relevant entity or property – say, legal

validity – as a fiction. The fictionalist therefore needs to strike the right balance between

demanding that the members of the relevant group of persons act on the fiction and demanding

that they be willing to step out of the fiction and scrutinize it from an external vantage point.

But while this may well be difficult, it need not be impossible.

14. METAETHICS AND THE THEORY OF THE BASIC NORM: CONCLUSION

We have seen (in Sections 12 and 13) that both metaethical and fictionalist interpretations of

Kelsen’s theory of the basic norm are problematic. To begin with, even though metaethical

relativism rules out the existence of justified normativity, one can argue that the theory of the

basic norm aims only to account for the normativity of law conceived as the use of normative

language on the part of judges, attorneys, legal scholars, and others, and that therefore the non-

existence of justified normativity does not undermine Kelsen’s analysis. However, this
 45

interpretation of the theory of the basic norm is difficult to square with Kelsen’s view that rules

of law, as distinguished from legal norms, are descriptive. For, on this interpretation, rules of

law could not play the role in an account of the normativity of law contemplated by the theory

of the basic norm, namely, that of illustrating the use of normative legal language on the part

of judges, attorneys, legal scholars, and others.

Moreover, we have seen that the theory of the basic norm conceived as a version of moral

fictionalism, is problematic, too. Not only does it seem implausible to hold that legal

professionals already treat legal validity as a fiction (hermeneutic fictionalism), but it also

seems that if legal professionals and law subjects were to treat legal validity as a fiction, they

might well find it difficult to avoid that their disposition to deny in their most critical context

that there are legal rights and duties will influence their legal thinking and undermine their

motivation to obey or apply the law and, in this way, undermine the utility of such fictionalism

(both hermeneutic and revolutionary fictionalism).

What to do? I am inclined to think that, on the whole, a relativist interpretation of Kelsen’s

theory of the basic norm is to be preferred to a fictionalist interpretation. As I see it, the best

option for a Kelsenian legal philosopher would be to combine a relativist metaethics with an

interpretation of rules of law as detached legal statements. On this analysis, the rules of law

could indeed play the above-mentioned role in an account of the normativity of law

contemplated by the theory of the basic norm. There is, however, as we have also seen, the

problem of whether Kelsen’s account of the normativity of law, thus conceived, is complete, or

whether it really only accounts for the use of normative language by legal scholars.

We need to remember, however, that on either interpretation of Kelsen’s metaethics, the

problem remains that the theory of the basic norm conceives of the problem of accounting for

the normativity of law as the problem of accounting for the normative use of language by legal
 46

professionals. And, as I have said, one may well doubt that the problem of the normativity of

law thus conceived is a philosophically interesting problem at all.

15. RATIONAL RECONSTRUCTION, NOT EXEGESIS

The reader may well wonder whether Kelsen was really aware of all the distinctions between

competing metaethical theories that we have been considering in this article. As far as I can tell,

Kelsen did not see very clearly the differences between, say, emotivism and metaethical

relativism, or between metaethical relativism and moral fictionalism, so he might not have

experienced any important change in metaethical views from one phase to another in the

development of the Pure Theory. For this reason, I think of my discussion of Kelsen’s

metaethics in this article as an attempt not to identify Kelsen’s actual views, but to provide a

rational reconstruction of Kelsen’s writings.

 47

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