Introduction

Refutation of Hans Kelsen's concept of law, by Drieu Godefridi. Refounder of legal theory in the modern era, Hans Kelsen (1881-1973) sought to build a 'pure' theory of law. In the sense of: free from all political and moral considerations. In an academic career that took him from Austria to Germany to the University of California at Berkeley, Kelsen left his mark on legal theory with some of its most stimulating and accomplished monuments. His two most 'purely' theoretical works are the seminal Queen Rechtslehrepublished in 1934, and Allgemeine Theorie der Normenpublished posthumously in 1979. As a series of extremely detailed and intellectually fertile infrapaginal notes to the Rechtslehre.

The rigour and originality of Hans Kelsen's work, the breadth of his field of study and his theoretical persistence, his ability to take into account and respond to most of the criticisms levelled at him - particularly in the course of polemics with that other legal theorist, Carl Schmitt - have shaped modern thinking on the law.

Kelsen claims to give an account of law - of all possible law - such as a hierarchy of norms[1]. Each norm derives its validity from respect for norms that are hierarchically superior to it. Taken singularly, the norm is considered to be an act of will, or more precisely the meaning of an act of will. Thus, according to Kelsen, it is possible to understand a particular legal system, and any legal system in its purely legal sense, without any political or moral considerations. From this point of view, legal theory is pure when it is 'purged' of all political and moral considerations.[2]

Two classic criticisms of Kelsen's system

Much criticism was levelled at these attempts at theoretical purity and moral virginity,[3] starting with the obligation to describe as legal the systems of totalitarian regimes such as Nazi Germany and the Soviet Union.[4] Kelsen accepts this consequence of his vision of law.

The concept of law must account for Soviet and National Socialist law

These criticisms, which are essentially moral in nature, are fully justified by Kelsen's objections and fail to achieve their objective. Reflection on the law is only conceivable when removed from the empire of moral philosophy. When reflection on the law stems from a particular conception of justice, it is no more than a derivation, in legal technique, of this conception, and finds itself absorbed by moral philosophy. All too often, reflection on the law "moralizes" its object in order to exclude rights it does not like. The same tendency to gerrymandering of law is found in Christian traditions,[5] liberal,[6] socialist and positivist.

What sense does it make to deny, for example, that Soviet law, which governed the behaviour of tens of millions of souls for seven decades, is law? If Soviet law is not law, given that it was the only law in force on the immense Soviet territory, what name should be given to the body of norms that took its place? Should we consider that a country, a people, a community can persist for seven decades without law?

The Grundnorm problem

Another recurring criticism of the Kelsenian system is that a legal system cannot be self-supporting in its validity. It must of necessity be based on something other than a norm. In the sense that the ultimate norm - the tip of the normative pyramid or Grundnormwhether real or fictitious - cannot, by definition, derive its validity from a higher standard.[7] This logical criticism is more effective than the previous one. But it does not seem decisive, in that the whole edifice would remain valid, even if its foundation were exogenous.[8][9]

In the latter part of the twentieth century, Prs. François Ost and Michel van de Kerchove showed that most legal systems are adorned with strange loops that deviate from the pyramid structure.[10] When a judge clarifies the interpretation of the constitution, he retroacts at the top of the pyramid, because his interpretation is binding on all the players in the legal system. It is not clear, however, that these hierarchical entanglements, which are very real, refute the essentially pyramidal structure of any legal system. Strangeness only exists by reference to a structure - which is that of the pyramid. Once again, Kelsen has the upper hand.

The problem of generality

The flaw in Kelsen's armour lies in his concept of generality. According to Kelsen, the norm that enshrines the arbitrariness of an authority possesses the highest degree of legal generality.

We begin by examining Hans Kelsen's definition of normative generality (chapter 1), formulating our thesis. We then examine the question of whether it is possible to deduce individual norms from general norms (Chapter 2). This will allow us to consider one of Kelsen's objections to the proposed concept of generality.

Chapter 1: Thesis

We must behave as prescribed by a given authority (...) represents the highest degree of generality of a norm. Hans Kelsen, Allgemeine Theorie der Normen[11]

Although thinking about the law goes back to the Greeks - Aristotle devoted some astonishingly topical reflections to it in the Policies - Hans Kelsen is credited with reviving legal thinking in the twentieth century.^e century. Thanks to a theory that was intended to be 'pure' of ideology.

The norm as the meaning of an act of will

According to Kelsen, all norms are general or individual.[12] In Kelsen's terms, the norm is the meaning of an act of will. Norm and will are inextricably linked. The norm is not just a statement, like a scientific proposition or a statement of fact; it is the expression of a will. More precisely, the meaning - i.e. the content, which becomes autonomous from its sender at the moment of utterance - of an act of will. The norm is a duty to be (in German, Sollen).

In one of the notes to his General theory of standardsIn his posthumously published work, which contains the last stage of his thinking, Kelsen offers a table of the different degrees of normative generality. From the individual norm in the strict sense - the most particular, concrete and immediate - to the most general norm.

"A norm is individual when the personal and material elements of the behaviour are established as compulsory. in concretoAll other norms are general norms, but the general character may have different degrees: for example, the command of father A to son B: "Close that window". All other norms are general norms, but the general character may have different degrees:

1. The father orders his sons B, C, D: "Now go to school". Here we have a determined number of individually determined addressees in concretoa given number of unique identical behaviours.
2. A non-commissioned officer gives the following command to twenty soldiers lined up in a row: "Three men out of the ranks". We are dealing here with a given number of addressers of the standard who are individually undetermined, and therefore determined. in abstractothree specific behaviours in concreto identical.
3. The Pope commands all Catholics to address a specific prayer to God on a specific day at a specific time. This involves an indeterminate but limited number of addressees of the determined norm. in abstractoan indeterminate but limited number of specific behaviours in concreto identical.
4. All men must keep the promises they have made: this is an indeterminate and unlimited number of specific addressees. in abstractoand an indeterminate and unlimited number of specific behaviours in abstracto identical.
5. All men must behave as Jesus tells them to. Only the authority that sets the standard is determined in concretothe material element of the standards to be observed is not determined at all: the personal element is an indeterminate but limited number of determined subjects in abstracto.
6. We must behave as prescribed by a given authority: only the authority that sets the standard is determined in abstracto. The material element of the standards to be followed is not determined at all; the personal element is an indeterminate and unlimited number of determined subjects. in abstracto. Standard 6 represents the highest level of generality of a standard.[13]

Demarcation criteria

The definition of a demarcation criterion between general norms and individual norms occupies the minds of legal theorists. This is not inevitable. It could be argued that some norms are clearly general, while others are unquestionably individual. And that there is a residual category of norms which, because of their abstract structure amalgamated with concrete elements, do not deserve to be described as general or individual. Such norms would be in the limbo of an in-between assumed as such.

Any norm that is not individual is general (Kelsen)

It should be noted that legal practice deals with a mass of norms whose effectiveness does not require them to be described as general or individual. The fact that they are valid norms is enough to ensure their effectiveness. However, we can immediately see that this option would be unsatisfactory from a reflexive point of view. If we propose a definition of normative generality, it must make it possible to create, at least by default, the category of individual norms. Any norm that is not general is individual. As we have seen, Kelsen adopts this technique, reversing the terms. Any norm that is not individual is general. This is formally correct, and makes it possible to consider all norms in the same way. summa divisio.

The three criteria traditionally used by legal theorists to distinguish between general and individual norms are the generality of the recipientsthe abstraction of the situation and of the command as such, the permanence of the standard.[14]

The supreme generality according to Kelsen

Thus Kelsen considers that the fourth highest degree of generality corresponds to norms of the type "All men must keep the promises they have made".[15] Because there is an indeterminate and unlimited number of defined recipients in abstractoand an indeterminate and unlimited number of defined behaviours in abstracto. "All men must behave as Jesus commanded" defines the fifth level of generality, before the supreme stage of the sixth level.[16]

The claim of Kelsen's table to give an account of any norm, in the mode of the summa divisioNone of this is questionable on the face of it in formal terms. In fact, the whole picture is indisputable. In that its internal coherence is beyond reproach, and it fits rationally into the reflection that unfolds, like a perfectly mastered arabesque, the General theory of standards.

Review

The question remains as to whether the concept of normative generality coined by Kelsen is the most appropriate one to capture his object. For the sake of argument, let us start with the individual norm "Close the window", from father A to son B. And the fifth degree of generality, which we adapt as follows: "All children must behave as their father prescribes." (We leave out the sixth level, to avoid the difficulties associated with the status of this norm, which Kelsen himself describes as fiction):

• N1: "Close the window" is an individual standard;
• N2: "All children must behave as their fathers prescribe" is, according to Kelsen, a general norm.

Semantics and the sender's point of view

If we allow for the indeterminacy of the addressees and the abstraction of the situation and the command, there is no doubt that N1 and N2 occupy two opposing positions in the field of normative generality. This is true from a semantic point of view. The individual order from A to B (N1) is radically different from N2, which is a general norm in terms of the number and indeterminacy of its addressees, the abstraction of the situations it addresses, and the indeterminacy of the commands that will follow it.

This is also true from the point of view of the issuer of the norm. How can we deny that there is a world of difference, from the point of view of the issuer, between an order issued here and now, and a norm as general and indeterminate as N2, which is the mark of a legislator?

This double point of view, semantic and of the issuer, is the one that Kelsen asserts throughout his theory. But what about the point of view of the addressee of the norm? How is this point of view relevant? We will attempt to answer these two questions, which may seem subsidiary but which open up a world of possibilities.

The point of view of the addressee of the standard

From the point of view of the addressee of the norm, there are no binding general norms, only individual norms. What is meant is that, from the point of view of the addressee of the norms, normative constraint does not exist in the form of a general rule. is updated only by individual norms, never by general norms. From the injunction of the police officer posted at the centre of a crossroads to the judgment of a court, from the point of view of effective normative constraint, the subject of law knows only individual norms.[17]

This thesis may come as a surprise. First, it postulates that a normative order is an order of constraint. This is Kelsen's thesis,[18] it's ours too, so we won't be discussing it here.

It is only from the point of view of normative constraint - to put it another way, of the effective application of the norm - and from the point of view of the subject of law, that there are only individual norms.

"Close the window" is an individual norm which applies, in Kelsen's example, to son B. This individual, and strictly, character of N1 is beyond dispute. But what about N2, "All children must behave as their father prescribes"? Let's assume that N2 is part of the same normative order as N1. From son B's point of view, what's the difference between N1 and N2? There is a big difference: the N1 norm applies to him here and now. N2 does not apply to him here and now.[19] From his point of view, that is, from the point of view of the norms that effectively constrain his behaviour here and now, N2 is a non-entity. At most, it is the vague promise of possible future individual norms, the content of which remains entirely indeterminate.

In reality, N2, like any norm which is not individual in the strict sense of N1, is a collection of potential individual norms. N2 does not by itself limit any behaviour (in the mode of constraint); in order to effectively normalise behaviour, in the mode of constraint, N2 will have to be actualised in norms of the N1 type.

Discussion

Why take into account the point of view of the addressee of the norm? Why not confine ourselves to the dual point of view of semantics and the issuer, favoured by Kelsen? There is certainly a discretionary element in taking into account, or not, the point of view of the addressee.

But apart from the fact that this consideration takes nothing away from the reflection, it should be emphasised that the purpose of the norm is to standardise. And it is precisely from this point of view that the essence of normative action lies,[20] that the point of view of the addressee must be taken into account. Not to do so impoverishes, without any rational reason - this consideration devoid of any moral notion - the reflection on the norm.[21]

If, as we maintain, from the point of view of the addressee and the normative constraint, there are only individual norms, then the concept of generality must be reopened. Indeed, from the point of view of the addressee and the normative constraint, there are only individual norms in Kelsen's table, no standard, whatever its level of generality, which does not have to be updated by individual standards. (Except for N1, which is already an individual standard in the strict sense).

One wonders whether taking the addressee's point of view into account makes the demarcation criterion irrelevant.

If, from the point of view proposed (addressee - current constraint), there really are only individual standards, how can we imagine any demarcation criterion? Doesn't this amount to distinguishing between current individual norms and deferred individual norms?

All the more so because, from the point of view of the recipient, there is strictly no difference between an individual norm and another individual norm, at the moment of its actualisation. So what does this mean?

Two general points

In truth, from the point of view proposed, the difference does not lie in the individual norm, but in the individual. in the nature of the general standard from which this individual standard is derived. From the point of view of the addressee, there are, in fact, two radically distinct and irremediably heterogeneous types of general norm - we are leaving Kelsen's picture for good. The general norm whose constraining content is foreseeable, and therefore avoidable, and the general norm whose constraining content is unforeseeable, and therefore unavoidable.[22]

The importance of this distinction cannot be overstated; it is historically seminal to Western public law.

Psephisma and nomos

At the end of the war against Sparta, Athens, defeated, adopted a regime that it wanted to be aristocratic and legalistic on the model of Sparta, but which immediately degenerated into arbitrary tyranny. This was the regime of the Thirty Tyrants, who put to death a significant proportion of the Athenian population at their whim. The tyrants were defeated and democracy restored. However, Athens remembers that it was under the regime of radical, and therefore arbitrary, democracy,[23] subjugated the Aegean basin, then declared and lost the war against Sparta. Under the archonship of Euclid, at the turn of the V^e and IV^e In the centuries before Christ, reforms were implemented to curb democratic arbitrariness.

These reforms "constitutionalise " existing law, placing it beyond the reach of ordinary majorities. And they create mechanisms for standard-setting control, some of which are reminiscent of, prefigure, and sometimes identify with very "modern" controls on the constitutionality of laws and the legality of regulations.

The whole of this sophisticated institutional edifice is based on a distinction, now imperative, between the psephismaor decree, which is an individual standard, and the nomosor law, which is a general standard. No decree is valid unless it complies with the laws in force. A decree that does not comply with the law is null and void.

From the point of view of the addressee, generality is opposed to arbitrariness

This edifice only makes sense if we define generality as opposed to arbitrariness, which is what the Athenians expressly do.[24] This affirmation of the need for psephisma individual nomos Athens invented Western public law.

Just as Euclid's reforms were intended to protect Athenian citizens from the whims of the moment, even if they were in the majority, the whole of the so-called constitutionalist tradition is founded on the need to protect the subject of law from the whim of the sovereign. Rule of law, RechtsstaatThe rule of law: this means requiring that power should only be exercised in accordance with rules, or general standards, that pre-existed its intervention, particularly in the criminal field.

To which Kelsen would no doubt reply that this historical evocation is very sympathetic, perhaps true, but that his task as a theorist is not to give an account of this or that political project - which is what constitutionalism is. His task is to develop a science of norms that is as free as possible of ideological dross.

The limits of purity in the study of law

However, this methodical rejection of the reasons for generality in the history of law shows that the desire to 'purify' theory has its limits, particularly in the field of the human sciences (to which the theory of law and norms belongs).

For it is one thing to maintain that a pure theory of law must set aside the constitutionalist point of view[25] like any particular ideology on law, such as Marxism. It is quite another to deny the relevance of taking into account the point of view of the addressee of the norm, for the sole reason - and there is no other in Kelsen's theory - that this is the cornerstone of constitutionalist theory.

A concept of law that denies the point of view of the addressee is meaningless

On the contrary, we maintain that no theory of law should ignore the point of view of the addressee of the norm.[26]

This amounts to affirming that Kelsen's point of view (semantic-emitter) is not wrong,[27] but ideological. In that it stems from a thirst for purity and an illusion of purity that leads us to ignore an essential aspect of its purpose. A standard cannot be treated like a chemical substance or a mathematical object (i.e.The standard is a human reality.) The norm is a human reality, and knowledge of it must take into account the point of view of its addressee, because it is the purpose of the norm to standardise his behaviour.

To consider the law without taking into account the point of view of the addressee of the standard is tantamount to considering a tool without taking into account its usefulness. It is, very strictly, a negation of its object of study.

If we accept the point of view of the addressee of the norm, Kelsen's normative picture must be relegated. Indeed, Kelsen's last two degrees of generality (the highest) do not designate norms that are general from the point of view of their addressees - predictable and therefore avoidable - but their antithesis. In other words, collections of potential individual norms that are perfectly unpredictable and therefore inevitable. These norms are arbitraryThey do no more than formally enshrine the arbitrariness of an authority.[28]

Degrees of generality?

What are we to think of the idea of degrees of generality? From the point of view of the addressee, the gradation of generality seems both unnecessary and artificial. A standard - i.e.Whether or not the number of recipients is limited. Whether or not the number of people to whom it is addressed is limited. And whether or not the definition of its application mechanism includes concrete elements. All that matters is the predictability, and therefore the avoidability, of the constraint attached to it.[29]

Proposed definition of normative generality

Recognising the objective importance of the point of view of the addressee of the norm, we define as general the norm whose actualisation the subject of law is able to avoid by means of constraint, through his own will.[30] [31]

Whether a standard is formally individual or general - Kelsen's table - is a semantic consideration which, from the point of view of legal theory, is incidental.[32] Thus Kelsen's definition of the individual norm seems formally valid. But how can we not be surprised that a judgement is qualified as a general standardaccording to the first Kelsenian degree of generality - norm 2 of his table - on the sole ground that there are at least two persons as plaintiff or defendant[33]?

A police officer's injunction at a crossroads can be described as an individual standard, when it is addressed to the driver of a vehicle, but it is not. general standardWhat is individuality, when there are two people in the vehicle? These questions show the artificiality and nominalism of the semantic debate, because everything depends on how restrictive the definition of individuality is.[34]

Kelsen's purely semantic definition is not erroneous, it is artificial, 'pure' from the essence of the reality under consideration - the normalisation of behaviour. In the end, this concept is indeed very pure, but this purity is that of the ideology that brutalizes its object of study.

The role and status of generality in the Kelsenian system

But this concept is the sun of the Kelsenian system. The concept of generality so perfectly defined by the General theory is not so by chance or accident, in the corner of a footnote. The Kelsenian concept of generality is perfectly consistent and continuous from the Pure theory until the General theory.

The best illustration of this is the Grundnorm which, in its ultimate version - the last edition of the pure theory and the general theory - is a fiction saying: "You must behave as the legal system commands" - which corresponds word for word to the highest degree of generality defined by the General theory.

Kelsen's identification of generality and arbitrariness is the conceptual substratum and structural apotheosis of his theoretical system.

Let us examine an objection in Kelsen's theory to the above. The idea that it is, according to Kelsen, impossible to deduce an individual norm from a general norm. If this is true, then the opposition between generality and arbitrariness is meaningless.

Refutation of Hans Kelsen's concept of law: continued.

Chapter 2. Objection

In the General theory of standardsKelsen maintains that it is intellectually - logically - impossible to deduce an individual norm from a general norm.[35]

This surprising thesis, if true, would render invalid the distinction between arbitrariness and generality, which is based precisely on the possibility of predicting which norms of individual constraint are likely to be adopted on the basis of general norms (general from the point of view of the addressee-constraint).

to be and should be

Throughout his work, Kelsen was concerned with the distinction between being and ought-to-be.[36] And rightly so, because it has been accepted since David Hume that being and ought-to-be are two distinct logical registers, and that it is an error of reasoning to claim to deduce the norm from being. Or, to put it another way, to claim to conclude from being to ought-to-be.[37]

Thus Kelsen explains that the judgment, which is an individual norm, cannot be deduced from the law (a general norm) and from the facts of the case.[38]

If we imagine the judge's reasoning as a syllogism - the major of which would be the law, the minor made up of the facts of the case, and the conclusion the individual norm of the judgment - it appears, according to Kelsen, that it is logically impossible to deduce the individual norm from premises that certainly contain a norm (the same logical register), but also being (a logically distinct register).

More fundamentally, and moving away from the act of judging in the strict sense, Kelsen asserts that it is impossible to deduce an individual norm from a general norm,[39] regardless of the facts of the case.

He explains that the individual norm is the meaning of an act of will. Now, Kelsen maintains that this normative act of will, while it may be informed and inspired by various factors - such as the law - is not the same as the individual act of will. can only be born of itselfIt cannot be derived, or deduced, from another act of will (that of the legislature, laying down the general norm).[40]

Clearly, this thesis is based on a particular conception of the will. In Kelsen's view, while the legislature may have willed the general norm, it cannot have willed its application to a particular case, because "one cannot will what one knows nothing about".[41].

"It cannot be admitted that the legislator wants Dupuis, who caused Lelièvre's death by a gunshot, to be imprisoned for life, because it cannot be admitted that the legislator knows that Dupuis will cause Lelièvre's death by a gunshot. You can only want what you know.[42]

This restrictive notion of the will lies at the heart of Kelsen's denial of the possibility of deducing the individual norm from the judgment of the general norm of the law. It must be shown to be erroneous if we are to support the deductibility of the individual norm from the general norm.

What does the legislator want?

Let us begin by noting that Kelsen, in a sense, is right: by definition, the legislature is not in a position to know the facts of a given case, a fortiori at the time of formulating the general standard, nor the facts of any of the cases to which its law will apply.

From this point of view, the legislature is not in a position to want Dupuis to be sentenced to life imprisonment for the murder of Lelièvre on the island of Saint-Louis on Tuesday 13 January. And it is to make up for this lack of will on the part of the legislature, which is not expressed in a specific case, that another will intervenes, that of the judge, to "say the law" in the case in question.

However, Kelsen's reasoning is problematic. No one has ever argued that the legislature was in a position to know about Lelièvre and Dupuis, or to want Dupuis to be convicted.

Napoleon, who personally presided over the work that gave rise to the civilist synthesis that bears his name, is certainly not in a position to 'want' our contemporaries to pay themselves this or that sum, nor to want anything from his sarcophagus at Les Invalides. The mere mention of this hypothesis shows its absurdity.[43]

But what kind of will are we talking about? Are we condemned to the hypothesis of an omniscient legislator, in the shape of Laplace's demon?[44] so that the proposition that "the law wants Dupuis to be convicted of the murder on Tuesday in Paris, etc." makes sense?

In short, what does the legislator want? That Dupuis be convicted? Does the legislature want specific cases? Is it not obvious that the legislature's intention concerns only and is exhausted by the legally relevant characteristics of the situations that fall within the scope of its norm? It would make little sense, moreover, to assume that the legislature would only wish to apply the law in specific cases. not the application of its standard to cases falling within its scope.

Do we only want the present?

It is as if, for Kelsen, will existed only in the present tense. Apart from the fact that this would render meaningless the very fact of positing a general norm - that is to say, a norm of the will - it would be impossible. even in the Kelsenian sense - which, by hypothesis, concerns the future, this restrictive notion of the will leads to a procession of logical consequences that are difficult to sustain.

For example, while the judge may want Marc to pay Sylvie 100 euros, the enforcement of this judgment does not fall within his jurisdiction.

If Marc fails to pay, measures will be taken to enforce the judgment against him: seizure of his assets by bailiff, forced sale, etc. These measures are news individual standards of constraint separate the individual standard of judgement.

Now, while the judge may well have wanted Mark to pay Sylvie 100, he certainly could not have 'known', as Kelsen puts it, that such and such a piece of furniture belonging to Mark would be seized at such and such a place at such and such a time, sold at such and such a place at such and such a time, and so on.

Does this mean that the judge not only did not want, but could not have wanted his sentence to be carried out? None of this makes much sense, and it sounds like a game of language in which the consequences of an arbitrarily restrictive definition of volition are upheld against all odds.[45] [46]

The fact remains that the general norm does not apply on its own. It can only be actualised through the intermediary of an individual norm, which is in fact the meaning of the act of another will. That of the judge. Having rehabilitated the will of the legislator, we should not deny that of the judge. The standard of judgment is the embodiment of two wills, one deferred, because it is general and abstract - that of the legislator - the other immediate: that of the judge.

But then, how are we to understand the relationship between the judge's act of will, of which the individual norm is the meaning, and the legislature's act of will?[47]whose general standard is meaning?

Cognitive and normative (volitional) aspects of the act of judging

By distinguishing between the two aspects of the function of judging: the cognitive aspect - knowing the facts, identifying the applicable law - and the normative aspect.

On the cognitive side, which is the essence of his function, if only from the point of view of the time and intellectual resources he devotes to it, the judge acquaints himself with the facts of the case. He translates them into the categories of the law, seeks out and identifies the legally relevant standards, and finally applies these standards to the facts. Then, and only then, does the judge formulate the individual standard of the judgment: "For these reasons, order Marc to pay Sylvie 100 euros".[48]

The formulation of the individual standard, even if it embodies the act of judging, is only a subaltern aspect of the function to judge.

The essence of the function of judging lies in the cognitive work of the judge. And it is precisely at the cognitive level that the individual norm is derived. The fact that the law is a general norm, a "must-be", in no way prevents the judge from treating it, for the purposes of his reasoning, as a simple statement, an observation, a "must-be". judgment of fact:

"The law requires that a murderer be sentenced to imprisonment" is a statement (which is not a must-be).

"Dupuis murdered Lelièvre" is a statement (which is not a must-be)

"The law requires that Dupuis be sentenced to imprisonment" is a statement (which is not a must-be).

Strictly speaking, there is no standard in this reasoning, which is a succession of observations and statements that unfold in the mind of the judge. The conclusion of this reasoning is not an individual standard in the normative sense.[49]. It is not the judgment. It will only become the individual standard of judgement when the judge, believing his work of knowledge to be complete, performs the act of judging in the strict sense: "On these grounds," etc.

Kelsen distinguishes between the two aspects, cognitive and normative, of the function of judging.[50] He goes so far as to concede that an individual norm can be "implicit".[51] and "contained[52] in a general standard. But he rejects the idea that the individual norm can be deduced from the general norm, or from the cognitive aspect of the function of judging. On the grounds that a duty-to-be cannot be deduced from a being, and that a duty-to-be can only be founded in itself.

"An act of thought can be linked to an act of will, and as a general rule it is insofar as if someone wants something, he must necessarily know what he wants. But this act of thought is prior to the act of will, is not identical with it nor implicit in it."[53]

Recognition as an individual standard deduced from a general standard

If the standard of judgment is not deduced from the law, where does it come from? According to Kelsen, "to lay down the individual legal norm (...) presupposes recognition of the general standard to be applied by the court which has jurisdiction to apply it".[54]

La recognitionKelsen logically situates this in the will of the judge, as the reason for the judge's possible application of the general norm to the particular case.[55] In other words, Kelsen distinguishes three aspects: the finding of fact and law, the recognition of the applicable law, and the judgment. Recognition is entirely a matter of the judge's will, and therefore of the judgment of which he is the premise.

We are entitled to ask whether this criterion, this "gateway" to the court's recognition of the law, nevertheless changes anything.

Or recognition is the result of the whim of the court - which has chosen to recognise as it might have chosen not to recognise the general norm. Is it conceivable that a normative order is entirely subject to caprice? each time repeatedof all its courts[56]?

Either this recognition is itself the result of an individual standard - "we must apply the law to the case" - which the court[57] deduced, in his case, from the general norm "laws must be applied" or its equivalent (which would be enshrined, for example, in the constitution of the normative order in question).

Which, as we can see, is the very type of deduction the possibility of which Kelsen contests, and which, moreover, merely adds a step to the reasoning whose usefulness is not apparent.[58]

The problem is not unlike Descartes' pineal gland. Having posed in the Metaphysical meditations the absolute heterogeneity of mind and matter, Descartes had to explain the interaction of these two realities. Pressed to clarify this point, the crucial nature of which cannot be denied, Descartes ended up formulating, in his correspondence, the hypothesis of the pineal gland, supposedly responsible for the interaction between body and mind. However, this answer solves nothing, in that it does not explain the interaction. Either the pineal gland is purely material, which explains nothing, or the interaction takes place within this gland, and everything remains to be explained.

Having shown that the recognition hypothesis merely shifts the problem without changing its nature, we still have to explain why the court decides to apply the law rather than its own whim.

The Schmittian moment of the act of judging

At the end of the intellectual work of deducing the individual norm from the general norm - which Kelsen contests, and which we support - the judge could choose to formulate another individual norm, or even to abandon the intellectual work from the outset in order to apply his whim.

For there is indeed a decision-making moment, a Schmittian moment, so to speak, or at any rate a Sartrian moment,[59] in the formulation of the individual norm. On this point, Kelsen is right, and indeed it is a truism.

Why do judges and courts apply the law - starting with their legal obligation to apply the law - instead of substituting their whim? When formulating their judgments, nothing and no one can stop them from copying a passage from the Bible or Albert Camus or singing the Traviata instead of "saying the law".

This question is only one aspect of the wider issue: why does the recipient of a standard comply with it? Because the standard is an integral part of an order of constraint. In other words, the recipient of a norm respects it out of fear of coercion. Which has various facets (fine, prison, reprimand, damages, loss of a right, damage to reputation, contempt, fear of reversal on appeal, disciplinary sanction, etc.). On this point, we must stop the investigation, conceding the general and psychological nature of the problem.[60] of its term.

In any case, we have established that an individual norm, in the form of a statement, is deducible from a general norm, considered as a statement, and that no order of law is conceivable if this conceptual truth is not recognised.

The Kelsenian concept of generality is very consistent, from the pure theory to the general theory. On the other hand, the deducibility of the NI from the NG is rejected in the TG as strongly as it was affirmed in the TP. Kelsen's evolution could not have been more radical. Everything he writes in the TP about the work of the judge we can take up unchanged. He clearly describes the deduction of the individual norm, by the judge, from the general norm (even if, in the TP, he does not sufficiently distinguish between the cognitive and normative aspects of the function of judging). The question to be examined is not this development as such; it would be absurd to hold it against Kelsen. The question is which of these two theses is more compatible with the Kelsenian system.

Nothing in his definition of generality obliged Kelsen to support the non-deductibility of the individual norm. Even in its highest sense, we must deduce from the Kelsenian general norm - taken as a statement - at the very least an individual norm of empowerment. According to norm N, it is up to me, the judge, any authority, to issue an individual norm.

In conclusion: Hans Kelsen's refutation of the concept of law

"Any content can be legal.[61] Kelsen has been widely criticized for this sentence from the Pure theory of lawThis is because it does not condone the 'juridicisation' of any legal content, be it National Socialist or Stalinist. However, this criticism, repeated a thousand times over[62] and reputed to identify the 'weakness' of legal positivism, misses the point.

Firstly, because the theory of law does not have to concern itself - and on this point we are in perfect agreement with Kelsen - with the value of the concept. moral of the norms it describes. Secondly, because the weakness of Kelsen's theory is not a moral one, but rather a fundamental one. formal (conceptual). And that, far from being confined to the problematic 'point' of the foundation in validity of the GrundnormIt permeates the entire system.

The negation of the subject's point of view is the source of the problem

By classifying under the term "general standards" all standards except those that are individual in the most restrictive sense defined by the General theory of standards - You do this! - Kelsen is consistent with the desire expressed in the Pure theory of law to take leave of what he calls the "subjectivist attitude" to law. This consists of thinking about the law in terms of its effects on legal subjects. This subjectivist point of view, which he presents as that of the Roman jurisconsults, capitalism and lawyers, is, according to Kelsen, ideological and must be dissolved by the pure theory of law.

However, this determination to root out the subjectivist view of the law leads Kelsen to define the general norm solely from the point of view of the sender of the norm, eradicating that of its recipient. Any norm that is not strictly individual is general, including norms that merely enshrine the arbitrariness of an authority. Better still: the most perfectly arbitrary standard defined, according to Kelsenthe most perfectly general standard.

This paradox, which is more accurately described as a conceptual aberration, ignores the objective difference (from the point of view of the science of norms) between a norm whose binding actualisation can be avoided by its addressee - like an electrified fence - and a norm whose binding actualisation cannot be avoided. Like a cattle prod that the bearer can use as he pleases.

This objective difference in nature between two types of norm can certainly be dismissed out of hand, without this decision being wrong as such. But in the field of a discipline, legal theory, whose very object - Kelsen dixit - is the study of norms, of standardisation, as aorder of human conductThere is no reason to ignore it.[63]

This negation is subversive of the entire Kelsenian system

We have seen that Kelsen himself regularly used the term 'general norm' in a sense that semantically excludes his definition of generality.

More fundamentally, the reduction of generality to arbitrariness is subversive of Kelsen's theoretical edifice, up to and including the concepts of hierarchy.[64] and pyramid[65] standards.

A pyramid of standards in which each level simply validates any expression of will from the level below is easily conceivable.[66] The constitution would confine itself to establishing in law whatever the legislature designated as such, the law would do the same with the executive, and so on.

So we would have both the most general and the most perfectly arbitrary pyramid of standards.

However, this "general" purity is necessarily exclusive of any idea of hierarchy, pyramid or structure of any kind. Because, if the authority finally instituted, at the base of the pyramid, can do of its will - by hypothesis, any the norm in force, which will prevent him from revising the distribution of roles (levels) within the pyramid at will and at any time.[67]?

 The identification of generality with arbitrariness is exclusive of the idea of legal order.

Knowing that the same is true of each of the levels of the pyramid, there is no pyramid and there can be no order when generality is identified with arbitrariness. There is only an improbable tiering of pure wills that will form circles, diverse forms or open wars according to each person's mood. In a mad saraband that, by hypothesis, nothing and no one will be able to transcend into law and therefore stop. The identification of generality with arbitrariness is exclusive of the idea of legal order.

If the most arbitrary norm is the most general norm, the concepts of pyramid and hierarchy of norms are meaningless - not problematic: non-existent. And the law is reduced to sensu stricto to the figure of a despot - in the formal, not moral, sense of living law - whose caprice permanently pulverises any idea of hierarchy whatsoever. As a result, the Kelsenian 'pyramid', which is supposed to account for the purest structure of law, heats up within itself a state of nature. This state of nature will shatter the pyramid as soon as we move from theory to practice. praxis.

Kelsen's theory of judgement is a theory of the pure will

Kelsen's assertion that it is impossible to deduce an individual norm from a general norm - supported in the TGN against the TPD - also stems from his very particular definition - not false, but as amputated, and for purely ideological reasons - of the will.

On the grounds that the author of the general rule could not have "intended" that a particular person be convicted in concretoand from the fact that a duty-to-be cannot be deduced from what is (true), Kelsen deduces (sic) that no individual standard can be deducted a general standard.

The individual norm, if we follow Kelsen, is born exclusively and entirely in the obscure well of the individual. will of the authority that enunciates it. Drawing its judgement not from the law, but from its own will - exclusively in his will - the Kelsenian judge is a demiurge, an electron free of any attachment, be it legal, a pure and perfect will. Kelsen's theory of judgment is a theory of pure will.

We have shown that this theory is based on an erroneous axiomatic, because a norm can be considered as a statement (which Kelsen acknowledges, including in the General theory)[68]. Andas statedAn individual norm is fully deducible - in the most elementary sense that must be conceded if the word deduce is to have any meaning - from a general norm. This is the work that judges and courts have been doing since time immemorial, before performing the actual act of judging, which consists of transmuting the statement[69] deduced as a standard: "Not these reasons, let's judge".

If the individual standard of judgement is always, everywhere and in its entirety - by its very nature - foreign to general law, then there is no law, only a pale cloud of inert words dotted with black holes - judges! - stirring up and crushing the very idea of law.

The system of the father of modern legal positivism is not 'problematic' or 'morally questionable': it is wrong.

In a nutshell:

1. Kelsen identifies the highest degree of normative generality with arbitrariness;
2. This identification, which is not wrong in itself, does violence to the object of the science of law as defined by Kelsen;
3. Kelsen constantly uses the concept of normative generality in a sense exclusive of his own definition, both in the TPD and the TGN;
4. The Kelsenian identification of generality with arbitrariness is exclusive of the notion of legal order as defined by Kelsen, in each of its components (pyramid, hierarchy): these two concepts, both structuring the Kelsenian system, cannot be reconciled;
5. Kelsen's identification of generality with arbitrariness is exclusive of any definition of legal order that does not identify it with a pure will (an enshrinement of pure wills), which is the very negation of the concept of 'order' in its elementary, not just legal, sense. Despotism is disorder: Bertrand de Jouvenel.

Each of these propositions is structurally refutable.

Concluding hypothesis (not demonstrated by the foregoing): does the thirst for theoretical purity, negating its object and destroying its system, which we observe throughout Kelsen's masterly theoretical gesture, stem from the abstractive hubris of its author, from a prior ideological vision, or from both?

Drieu Godefridi, 2023, quote as: D. Godefridi, "Réfutation du concept de droit de Hans Kelsen", Institut Cogito, March 2023, https://www.cogitobelgium.com/refutation-du-concept-de-droit-de-hans-kelsen-par-drieu-godefridi/

Selected bibliography

Andocide, "On the Mysteries", in Speechtrans. G. Dalmeyda, Paris, Les Belles Lettres, 2002

Aristotle, Policiestrans. P. Pellegrin, Paris, Flammarion, 1993

Bentham, J. - Of Laws in GeneralLondon, The Athlone Press, 1970

Kelsen, H.

- Rechtsstaat und Staatsrecht, Österreichische Rundschauvol. XXXVI, 1913

- General theory of standardsParis, PUF, 1996

- Pure theory of lawBruylant and L.G.D.J., 1999

Laplace, P.-S. - A philosophical essay on probabilitiesParis, Bachelier, 1814

Pauer-Studer, H. - "Kelsen's Legal Positivism and the Challenge of Nazi Law", European Philosophy of Science - Philosophy of Science in Europe and the Viennese HeritageVolume 17, Vienna Circle Institute Yearbook, 2014, 223-240

Plato, Le Politiquetranslated by L. Brisson and J.-F. Pradeau. L. Brisson and J.-F. Pradeau, Paris, Flammarion, 2003

Tur, R. HS - "The Alternative Character of the Legal Norm: Kelsen as Defeasibilist? Kelsen Revisited, New Essays on the Pure Theory of Lawedited by Luis D. d'Almeida, John Gardner and Leslie Green, Oxford and Portland, Hart, 2013

Yang, K. - "The Rise of Legal Positivism in Germany: a Prelude to Nazi arbitrariness? Western Australian Jurist 3, Zetzel, J.E.G. (ed.), 1999, 245-257.

[1] Hans Kelsen, Pure theory of law (hereinafter TPD), Bruylant and L.G.D.J., 1999 (Queen RechtslehreVienna, 1934 and 1960), 224s. and General theory of standards (hereafter TGN), Paris, PUF, 1996 (1979, posthumous), 346 f.

[2] TPD, 65s.

[3] In the eloquent and generic words of the American legal theorist Lon Fuller: "Jurisprudence should start with justice. I place this preference not on exhortatory grounds, but on a belief that until one has wrestled with the problem of justice one cannot truly understand the other issues of jurisprudence. Kelsen, for example, excludes justice from his studies (of practical law) because it is an 'irrational ideal' and therefore 'not subject to cognition. The whole structure of his theory derives from that exclusion. The meaning of his theory can therefore be understood only when we have subjected to critical scrutiny its keystone of negation" in "The place and uses of jurisprudence in the law school curriculum", Journal of Legal Education, 1948-1949, 1, p. 496.

[4] Jean-René Binet, Law and scientific progressParis, PUF, 2015, chapter 2; Herlinde Pauer-Studer, "Kelsen's Legal Positivism and the Challenge of Nazi Law", European Philosophy of Science - Philosophy of Science in Europe and the Viennese HeritageVolume 17, Vienna Circle Institute Yearbook, 2014, 223-240; Kenny Yang, "The Rise of Legal Positivism in Germany: a Prelude to Nazi arbitrariness?", The Western Australian Jurist vol 3, 2012, 245-257; Frank Haldemann, "Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law", Juris Ratiovol. 18, No. 2, June 2005, 162-178.

[5] Christian iusnaturalism claims to discern the law in nature, insofar as nature is the reflection of God. logos divine. See also Saint Thomas Aquinas, Summa Theologiæ: Human law originally sprang from nature (91.3); human law must conform to natural law by means of reason; this natural law is itself part of what Aquinas calls the "eternal law", a reflection of the divine law. logos divine in this world (Summa Theologiæ, 91.1).

[6] Liberal iusnaturalism claims to discern law, or at least fundamental rights, in the nature of man as such. See, for example, the two treatises on civil government by John Locke, Baruch Spinoza and Samuel von Pufendorf (De iure naturae et gentium). Although positivist in his advocacy, Thomas Hobbes maintains that man possesses rights as man, from the state of nature (Leviathan). The same 'naturalising' claim can be found in the contemporary form of 'libertarianism', in authors such as Murray Rothbard. Friedrich Hayek offers an interesting attempt to go beyond this form of iusnaturalism, which he describes as naive, by arguing that if man wants to achieve certain objectives, then a certain structure of law, a composite of rule of law and separation of powers (see. The Constitution of Liberty, 1960). Unlike most proponents of liberal iusnaturalism, Hayek assumes the 'Weberian' subjectivity of the values on which his approach is based.

[7] There is a vast literature discussing the Kelsenian hypothesis of the GrundnormSee Joseph Raz, "Kelsen's Theory of the Basic Norm", The authority of law: Essays on law and moralityClarendon Press, 1979; J. W. Harris, "When and Why Does the Grundnorm Change? " , Cambridge Law Journalvol. 29, no. 1 (April 1971), 103-133; Graham Hughes, "Validity and the Basic Norm", California Law Review59, 695, 1971; Dhananjai Shivakumar, "The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian Methodology", Yale Law Journal, 105, 1996.

[8] Kelsen takes this criticism partially into account in the second edition of his Pure theory194s, explaining that the Grundnorm is not asked but must be assumed and that consequently "the basis of its validity can no longer be the subject of a question". (sic) This seems to be the very type of thing that Karl Popper described in his Logik der Forschung  - published the same year as the first edition of the Queen Rechtslehrein 1934 - as a "hypothesis ad hoc The same "supposition" is discussed in the "theory" section. The same 'supposition' is discussed in the General theory (references below), 343 ff., which exacerbates its artificiality, characterising it as a fiction that "contradicts reality" and is "contradictory in itself".

[9] Put another way, the problem lies in the absoluteness of Kelsen's definition of legal validity. If his concept of validity is taken from absolute to relative (intrasystemic) - no system of any kind can ever account for itself by itself - the problem disappears. How can law claim to be self-founding in validity when even mathematics has to concede unprovable axioms?

[10] Milestones for a critical theory of lawBrussels, Publications des Facultés universitaires Saint-Louis, 1987 and From pyramid to network? For a dialectical theory of lawBrussels, Facultés universitaires Saint-Louis, 2002.

[11] Op. cit.

[12] Hans Kelsen, TPD, 80 and TGN, 9. We can only agree with Kelsen when he denounces the illusion of the "traditional doctrine", according to which the law consists only of general norms, judgments having only declaratory value (TPD, 239). The fact that the doctrine has abandoned this illusion in order to recognise the status of judgments as standard (This progress is not unrelated to the influence of Kelsen, in particular the analytical rigour of his distinction between being and ought-to-be. Hugues, op. cit., 695.

[13] Kelsen, TGN, 376, note 10, final emphasis added. This analysis of generality is consistent with the definition given in TPD, 245: "General norms are never more than a framework within which individual norms must be created. However, this framework may be narrower or wider. It reaches its maximum width when the positive general norm contains only the power to create the individual standard, without determining its content in advanceitalics added.

[14] Jeremy Bentham, Of Laws in GeneralLondon: The Athlone Press, 1970, 76; François Ost, Sade and the lawParis, Odile Jacob, 2005, 274.

[15] A case in point is Article 1134 of the Belgian and French Civil Codes: "Legally formed agreements take the place of law for those who have made them. They can only be revoked by their mutual consent, or for the reasons authorised by law. They must be performed in good faith.

[16] It should be noted that the sixth and highest degree of normative generality corresponds, according to Kelsen, to that of the fundamental norm (Grundnorm). Any legal system is necessarily based on a Grundnormwhich is a fiction (Kelsen, TGN, 339 f. and 376).

[17] Quid when the subject of the law adapts his or her behaviour to the general norm, precisely in order not to not be coerced? Will it be denied that, in this hypothesis, the general norm has 'limited' or 'normed' his behaviour without the intervention of an individual norm? An individual standard of state coercion, certainly. But a general norm can never be actualised, albeit in the form of self-censorshipthan through an individual standard.

[18] Kelsen, TPD, 36, 41 f., 64, 220, 259; TGN, 28.

[19] N2 socket only. If, because of N2, the son obliges himself here and now, that is, if he actualises N2 in an individual norm - "given N2, I am obliged here and now to close the window" - then he is obliged. Not by N2: by an individual norm that actualises N2 in the mode of constraint - even if it is self-generated. A general norm is only ever actualised, in the mode of constraint, by an individual norm.

[20] This is also pointed out by Kelsen, TGN, 115: "The object of a norm (...) is (...) human behaviour. For the norm must be observed and applied. It can therefore be laid down appropriately on the sole condition that it is addressed to a being who can understand its content and intend to behave in accordance with it (...)." (italics by Kelsen, final emphasis added). One could not say it better. See also TGN, 196, 285, 369.

[21] Taking into account the point of view of the addressee is not a choice of opportunity. The standard is a human reality through and through. Dealing with the standard without taking into account the point of view of its addressee is an illusion of theoretical purity that negates its purpose. Standards are only human. There can be no science of norms that does not scrupulously take into account the point of view of the addressee. This indicates a consubstantial link between the science of norms and anthropology, understood as a set of elementary generalisations about human nature, more precisely about the behaviour human.

[22] The difference is not one of degree, but of nature. There is an objective difference - from the point of view of the science of norms - between a norm whose binding actualisation is predictableThe former is like an electrified fence, the latter a cattle prod to be used at will. The former is like an electrified fence, the latter a cattle prod to be used at will.

[23] The thousand-headed tyrant described by Aristotle, in Policiestrans. P. Pellegrin, Paris, Flammarion, 1993, 1292a.

[24] Stipulating "It will not be permitted to establish a law for an individual if the same law does not apply to all Athenians, unless the decision is taken by 6,000 voters in a secret ballot", see Andocides, "On the Mysteries", in Speechtrans. G. Dalmeyda, Paris, Les Belles Lettres, 2002, 87.

[25] Kelsen, TGN, 377.

[26] Although it takes implicitly takes into account the point of view of the addressee of the standard in a whole series of concepts, reflections and definitions (see, for example, the definition of "standard"). freie Rechtsfindungor system of arbitrary law, which he opposes to the constitutionalist rule of law, TPD, 251, or the discussion of equality before the law, TPD, 146), the negation of this point of view, when it is discussed as suchis a structuring factor for Theories of Kelsen. Thus the polemic, in the TPD, against the notions of subjective right, legal subject and even legal person, all encompassed in what Kelsen calls "the subjectivist attitude towards the law", which consists of considering the law "from the point of view of the interests of the parties" in order to determine "to what extent it harms them, i.e. threatens them with harm or disadvantage". It is up to the pure theory of law, Kelsen explains, to dissolve this ideological point of view (TPD, 190).

[27] La definition Kelsene's view of generality as such is not wrong, even if, as we shall see, it leads to the collapse of his conceptual system.

[28] If we accept the table of normative generality in the TGN - which is merely the analytical deepening of the concept of generality that underpins the edifice of the two Theories - the error of those authors who establish Kelsen as the critic of arbitrariness - in whatever sense one takes this concept (formal or material) - is clearly apparent. Not only is the Kelsen of the two Theories does not set arbitrariness against the law, but rather the norm that the purest arbitrariness of an authority embody the quintessence (i.e.the highest degree) of normative generality. Contra: M. Cau, "Hans Kelsen et la théorie de l'État chez Dante", trans. Pierre Girard, Law and literature, 5/2005. Admittedly, in his early writings, Kelsen took the view that the rule of law was opposed to absolutism (cf. H. Kelsen, "Rechtsstaat und Staatsrecht", Österreichische Rundschauvol. XXXVI, 1913), but from the TPD onwards and from the moment that the most general norm is precisely that which enshrines the arbitrariness of an authority, this distinction is no longer conceivable. To write, as Emmanuel Pasquier does, that Kelsen seeks to "ward off arbitrariness" is a misinterpretation: E. Pasquier, From Geneva to Nuremberg: Carl Schmitt, Hans Kelsen and International LawParis, Garnier, 2012.

[29] Note, for example, that from the point of view of the addressee of the norm, there is no difference, in terms of room for manoeuvre, between the order addressed by the father to one of his sons, and the same order addressed to his three sons - the latter injunction corresponding to the first degree (the weakest, in his view) of Kelsenian generality.

[30] In any order of constraint, there are norms that are not directly associated with constraint: this is a truism that we do not discuss here; on this point our agreement with Kelsen is perfect.

[31] The question arises as to the relationship of this antinomial generality-arbitrariness to the Kelsenian couple general norms-individual norms. The two antinoms are difficult to combine, because their concepts do not overlap. Nevertheless, since they are two exhaustive divisions that apply to the same whole, they must be combined. Among the general norms of our antinomial generality-arbitrariness, we find only the general norms of the fourth Kelsenian degree (such as article 1134 of the Civil Code). Arbitrary norms, in the sense we have defined, include on the one hand falsely general norms (from the point of view of the addressee), of the type of degrees 5 and 6 of generality according to Kelsen, and on the other hand individual norms that do not conform to a general norm in the sense we have defined. Finally, it should be noted that an individual norm is not necessarily arbitrary, if it is "sourced in" (conforms to) a general norm in the defined sense. To consider, in reverse, the intersection of antinoms in the Kelsenian framework, we note that Kelsen's general norms designate both general norms and norms that are arbitrary in the sense indicated, and that Kelsenian individual norms include, without discrimination, individual norms that are sourced in general norms (in the sense of our antinom) and individual norms that are not.

[32] Not only does Kelsen fail to recognise the primacy, from the point of view of the theory of law, of normative generality over semantic generality, he also fails to recognise the existence of this duality of points of view (when dealing with the subject as such). For Kelsen, the semantic point of view cancels out the point of view we have called "normative", which he refuses to name and distinguish, even though he makes repeated implicit use of it.

[33] Contra the Kelsen of the TPD, which considers that the judgment is always an individual standard: 27, 80, 89, 97, 123, 144, 168, 230, 232, 239, 250. See in the same sense TGN, 36.

[34] From a strictly semantic point of view, it is surprising that Kelsen never refers to the criterion of permanence in the definition of generality. Assume two identical standards; the first becomes invalid one week after it is issued, while the second remains in force. indefinitely. Will it be disputed that the second is more 'general' than the first? Kelsen cannot do so, because the very fact of the difference in duration means that the number of addressees of certain norms is greater (a criterion that Kelsen takes into account in his definition of the degrees of generality, but in an exclusively static mode in time, which formally there is no justification for): this shows the nominalism of a debate that undoubtedly interests linguistics, but concerns law and its theory only at the margins.

[35] He had maintained the opposite throughout the PDT, 82, 95, 238, 267.

[36] Kelsen, TPD, 14.

[37] Other authors, such as Kant, are notoriously more reserved.

[38] Kelsen, TGN, 541.

[39] Kelsen, TGN, 542.

[40] This logically makes Kelsen what Richard HS Tur calls a "defeasibilist", "which permits the court to disregard, disapply of defeat an applicable general norm, and (...) to substitute a new individual or general norm of its own devising (...)", in "The Alternative Character of the Legal Norm: Kelsen as Defeasibilist? Kelsen Revisited, New Essays on the Pure Theory of Lawed. Luis D. d'Almeida, John Gardner and Leslie Green, Oxford and Portland, Hart, 2013, 258.

[41] Kelsen, TGN, 318.

[42] Kelsen, TGN, 335. See also TGN, 320.

[43] This was recognised by the Kelsen of the TPD, 18. On this point, as on others, the TGN marks a conceptual radicalisation, more sophisticated than fruitful, in relation to the TPD.

[44] "An intelligence which, at a given moment, knew all the forces of which nature is animated and the respective situations of the beings which compose it, if moreover it were sufficiently vast to submit these data to analysis, would embrace in the same formula the movements of the largest bodies in the universe and those of the lightest atom; nothing would be uncertain for it, and the future, like the past, would be present to its eyes": Pierre-Simon Laplace, A philosophical essay on probabilitiesParis, Bachelier, 1814, 2.

[45] A definition of the will that is no more satisfactory, moreover, at the level of the general norm alone (without considering the individual norm): what sense does it make to posit, as Kelsen does, that general norms, for example in Roman law, the fruit of a thousand years of refinement by generations of cautiousThe Code of Rome was first drafted by a group of magistrates, prefects and then imperial officials, culminating in the Justinian Code, are the meaning of acts of will of specific persons? (see for example TGN, 401, note 38, which shows the ingenuity of Kelsen's theory of the will).

[46] Although the power of his reasoning and the penetrating and original character of most of his developments are to be commended, the General theory of standards appears, from this point of view, as an analysis of particular initial definitions, which seem to stem from a thirst (illusion) for theoretical purity that is reminiscent of both the Aristotelian circumscription of the field of the possible, and the illusions of the Mathesis universalis of Leibnitz. Cf. the way in which Kelsen maintains in fine of the TGN that "the jurisdictional decision is not a logical inference, but (...) once it has been made and the individual norm becomes valid, it is based on the validity of the general legal norm to be applied in the concrete case." (page 567). How baroque and artificial is this foundation? retrospective the validity of an individual standard in a general standard from which it is deemed not to have been deducted?

[47] What is fictional, to clarify the previous development, is not the hypothesis of the legislator as such: on the one hand, this is a convenience of language that is difficult to dispense with; on the other hand, for a norm to be a norm, there must be an authority, however diverse and decentralised it may be. The fictional case against Kelsen concerns the cognitive work of the author of general norms. When these norms are the fruit of centuries of refinement, it is inaccurate to present them as the fruit ofa The legislator is a legal fiction in the strict sense, devoid of will in the sense that Kelsen gives to the term 'will'. The error of perspective, from this point of view, is similar to Kelsen's reduction of the function of judging to the mere act of judging, cf. infra.

[48] All these operations are perfectly described and circumscribed by Kelsen in the TPD (see note 238 and the other references cited). supra), before he changed his mind in the TGN.

[49] That a norm can be formulated as a statement, without any normative ambition, conditions the very existence of the theory of law, which gives an account, on the descriptive modestandards. See also TPD, 82: "the Sollen of the legal proposition does not, as the Sollen It has only a descriptive meaning. It is nonetheless a Sollen!

[50] Kelsen, TGN, 167s.

[51] Kelsen, TGN, 543.

[52] Kelsen, TGN, 548.

[53] Kelsen, TGN, 317. In short, Kelsen's argument boils down to the impossibility of deducing from the general norm the individual norm of judgment as such. This is formally correct, at the cost of simplifying the question, i.e. a crushing of cognitive work by the normative moment. For if the individual norm is not deducible normatively of the general standard, it is intellectually. This, moreover, is what Kelsen recognised in TPD, 18: "a norm may be something other than the significance of an act of will; as a significant datum it may also be the content of a pure act of thought. Some norms are willed; others are simply thought, without being willed. To deny this concession would mean abandoning expressions such as "applying the laws" (which Kelsen uses extensively), which would make for a strange theory of law. See also TGN, 167, where the concession is implicit: "When a certain behaviour is objectively - i.e. in a purely cognitive way - established as conforming or not conforming to a norm presupposed to be valid (...)", and so on.

[54] Kelsen, TGN, 322, italics added.

[55] For Kelsen, recognition is the cornerstone of the act of judging, by the judgeKelsen's interpretation of the general norm to be applied shows that, for the purposes of his exposition, he sometimes accepts the point of view of the addressee of the norm.

[56] What is the difference between this system and that of natural law, in which judges are allowed to set aside a positive norm that is contrary to "natural justice", and which Kelsen rightly denounced as "leading only to the most total anarchy" (TGN, page 378, see also 159)? What is the difference between this system and one that would include a rule expressly enjoining the judge to decide on the basis of his political and moral convictions, a system that Kelsen denounced in the TPD as a "pure and simple abdication of the legislature in favour of the judge"? (TPD, 247; see also the polemic against Roscoe Pound's system, TGN, 436, note 80). It could be argued that recognition is even more anarchic, since it is not stipulated that no a criterion, be it of justice, be it individual, by virtue of which the judge would be led to recognise, or not, the applicable general standard.

[57] The court competentKelsen, TGN, 557: one is justified in wondering whether the finding of such jurisdiction is itself the result of the whim of the court seised (by chance?), or whether that court has jurisdiction by application of the general rules of judicial law.

[58] For the same reasons, Kelsen rejects more generally the application of the rules of logic to norms. For the reasons given, this rejection (absent from the TPD) seems questionable to us; however, the subject would take us beyond the scope of the present work.

[59] In the sense of existentialist freedom.

[60] It is arguable that it therefore falls outside the scope of legal theory in the strict sense.

[61] Kelsen, TPD, 197.

[62] Cf. the references cited supra.

[63] TP, 39.

[64] Kelsen, TGN, 345s.

[65] Kelsen, TPD, 224s.

[66] Kelsen clearly affirms the possibility of this (TGN, 346), claiming to be inspired by Plato's ideal State "which empowers judges to decide individual cases, according to their discretion, without being bound by predetermined general norms" - without being bound by norms that are legalKelsen (who, moreover, uses the word generality in the quoted sentence in a sense that is expressly irreconcilable with his definition of generality, since he "uses the word generality in a sense that is expressly irreconcilable with his definition of generality, since he "uses the word generality in a sense that is expressly irreconcilable with his definition of generality. excludes here precisely arbitrariness). Be that as it may, it should be noted that Plato himself stresses the impossibility of this ideal state, and this, it should be noted, for reasons of its own. standards (i.e.For Socrates, how could there be anyone who would be capable, at any moment in life, of sitting down with each person and prescribing precisely what he should do?Le Politique295a and 295b, trans. L. Brisson and J.-F. Pradeau, Paris, Flammarion, 2003). In the absence of this "god among men" (303b), Plato concludes, we need written rules and ancestral customs that are inviolable and without exception (301a). antithetical of Kelsenian arbitrariness.

[67] One might be tempted to answer by distinguishing, as Kelsen does, between norms that empower the creation of lower norms (e.g. the constitution empowers the legislature to create laws), and norms that prejudge the content of the lower norms to be created (e.g. by excluding the criterion of race, or the limits on freedom of expression: these examples are from the Kelsen of the TGN). The latter could be perfectly arbitrary/general, in the Kelsenian sense, by in no way prejudging the content of the lower norms, whereas the former are not (it is the legislature alone that creates the laws, in strict compliance with the conditions laid down in the constitution). However, this distinction is not conclusive in the present case. Either the normative order under consideration provides for the possibility of its own revision, a power which ultimately falls to the lower normative level in the scheme of "perfect" generality/arbitrariness. Or it is not perfectly general/arbitrary in the Kelsenian sense.

[68] The fact that a norm can be regarded as a statement conditions the possibility of any theory of law, as Kelsen emphasises as early as the Pure theory82s, distinguishing between the norm as " Sollen prescriptive" and the standard statement, which is a "prescriptive". Sollen descriptive". (Strictly speaking, the expression " Sollen descriptive' is a contradiction in terms: a normation is not a description but a normation; we will therefore speak more readily of a 'description of a Sollen' than of a 'normation'. Sollen descriptive").

[69] In the sense of grasping the statement in and through an act of will whose meaning is judgment.

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