Kelsen's theory of the Basic Norm

Abstract

Of all the various doctrines of Kelsen's legal philosophy it was his theory of the basic norm that succeeded most in attracting attention and capturing the imagination. It acquired enthusiastic devotees as well as confirmed opponents. Both admirers and critics owe much to the obscure way in which Kelsen explains his theory. The obscurity was criticized and led people to suspect that the whole theory is a myth; but it also provided admirers trading on ambiguities an easy escape from criticism. In the following pages yet another attempt to demy- thologize the theory will be made. An explanation of the concept of the basic norm as Kelsen's attempt to provide an answer to some well-known jurispru- dential problems will be offered. It will be further claimed that the attempt has failed, but that its failure is illuminating. It sheds light on the intricacies of the problems involved and on their possible solutions. Criticism will follow the exposition. The exposition, however, cannot be faithful to all the relevant texts. Some ambiguities and even contradictions cannot be eradicated by interpretation, however ingenious. Not wishing to trace the development of the theory or to present an exhaustive discussion of all the texts, the strategy adopted will be always to prefer the more interesting of two conflicting interpretations, and to disregard the rest. The theory will be examined in relation to the problems it was designed to solve. It stands or falls according to its success in dealing with them. Kelsen regards the concept of the basic norm as essential to the explanation of all normative systems, moral as well as legal. Only his use of the concept in legal theory will be examined here.