THE SHIELD OF ACHILLES

by Bobbitt, Philip

  On that view, only a valid law is part of the legal order; the test of that validity is the ability of a norm to motivate compliance by engendering a sense of obligation, and because we only feel a sense of obligation to those laws we believe are valid, Jellinek's characterization is refreshingly non-foundational.* A valid law is simply one that is accepted as valid.

  It seems generally true of human nature that it regards that which is seen to exist in fact, especially over a period of time, as normal, i.e., as establishing a norm. To find a reasonable justification for this normative power of facts would be wrong; whatever actually exists can be rationalized later; its immediate normative significance lies in the irrational acceptance of what is known and practiced as being right.25

  In contrast to Austin, Jellinek rejected the idea that coercion can render a law valid: if coercion were the validating element, then any legal rule could be law, whereas we know that actual laws are constrained by real conditions. Moreover, any positivistic rule that postulates the existence of the State prior to law and postulates the State as the only source of law will be unable to account for the validity of international law. On the other hand, Jellinek conceded that there is no Volk, no nation, that validates international law by virtue of its traditions and culture.

  This argument led Jellinek to his most famous formulation, the idea of autolimitation. It is a crucial notion for the nation-state, because the State is held to derive its authority from the nation. If the State promulgates law, how can it bind itself? If the nation is the source of authority, how can it be bound? Jellinek concludes that the State is bound by norms, the content of which it controls to this extent: the nation authorizes the State to act according to the norms the nation recognizes; the State chooses those norms that serve as the substantive content of the law it enacts. This means the State must agree to limit itself according to the norms it serves. And this also accounts for international law: not just the will of a single state, but rather the collective autolimitation of a number of states acting in accord produces international law. One consequence of this view was the discrediting of the former state-nation structure of the German Confederation, which the Congress of Vienna had set up, because the confederation form was backed solely by international law and thus was a weak and ineffectual structure, having no roots in a national society to supply a sense of obligation.

  Jellinek's views are a good summary of the jurisprudence available to the statesmen who took the nation-state of the Kaiserreich into the nation-state of the Weimar Republic. That Jellinek's fundamental postulates—the normativity and theoretically independent validity of law, and its dependence in fact on the real existence of the politically organized Volk—would prove incompatible was quickly evident in the new state. In the first direction went the liberals, who maintained the integrity of the law above politics; in the second direction went the fascists and the communists, who demonstrated that law could not function in an atmosphere of violent political discord.

  KELSEN

  The leading figure of twentieth century jurisprudence was Hans Kelsen. Born in Prague in 1881, Kelsen was a professor of law at the University of Vienna in October 1918 when the Emperor Karl restructured the Austro-Hungarian empire. Later Kelsen became an important drafter of the postwar Austrian constitution, which, like that of Weimar, was organized according to parliamentary nation-state ideas. His principal contribution to this effort was the shaping of the Constitutional Court, to which he was named justice and general rapporteur, a post he held until he was deposed in 1929.26 In 1930 he became a professor at the University of Cologne. After emigrating to the United States in 1940 he taught at Harvard and then at Berkeley.

  Jellinek and others recognized that law is normative (that it sets a standard) and therefore different from social facts (which are as they are, not necessarily as they should be). Kelsen's fundamental insight was that the full significance of this distinction had not been appreciated. This led him to two postulates: (1) the relative nature of law, and (2) the essential criterion of formality. Kelsen's working out of these two principles led him to a third, (3) the primacy of international law.

  Jellinek conceded that law asserts norms, and he acknowledged that juristic concepts do not decide natural facts, 27 but he made law depend upon the psychological fact of acceptance. For Jellinek, the normative power of a legal rule depends upon its motivating power; its validity is a matter of its effectiveness. This introduces the world of causality, which is a feature peculiar to the world of natural reality. This move, in Kelsen's words, overlooks the fundamental characteristic of any norm: “that it is a rule not of but for human behavior.”28

  No idea of Kelsen's is more celebrated or more misapprehended than this distinction between norm and fact. Relying on the Kantian idea that the categories of a field constitute its facts for it, Kelsen rejected Jellinek's assumption that sociology and jurisprudence have the same subject matter. This move led to Kelsen's description of the relative nature of law and not, as is usually asserted, the absolute nature of law, isolated from all culture.

  Consider the neo-Kantian distinction between a practical and a theoretical science. A practical science (like Kant's practical reason) tries to bring about factual conditions in accordance with some desired standard; this standard is the normative. Every practicing politician, no less than every minister delivering a sermon, reflects such practical reason in his or her program. By contrast, a theoretical science determines the object of its discipline and explains and unifies the data that are factual for it. Every theoretical physicist, no less than every historian, must collect and attempt to explain the facts of his or her study.

  Jellinek too had distinguished between theoretical and practical science by claiming that a theory is explanatory, while a practice is applied. Kelsen, however, contended that the distinction between theory and practice is a relative one, and that it depends upon the further distinction between fact and norm. The relevant facts for a theoretical science are different from those of a practical science, though both must deal with facts. The real difference between theory and practice is that each deals with different facts and has a different role for norms. This is the key to law's relativity. Vis-à-vis the social sciences, law is practical and has a normative aspect, whereas social sciences deal in social facts as they are; in such a context, law is a norm. But vis-à-vis politics, morality, ethics, and philosophy, jurisprudence is theoretical and in this context law is only a fact. Whether a law is wise or just or cruel is an important question, but not one for jurisprudence; whether studies show us that most French citizens do not report all their earned income does not bear on whether the French income tax law provides that such income is reportable.

  Kelsen's first postulate then was that law has a Janus face; to ignore either of its visages is to assimilate it into a different discipline and thereby distort its true subject. The sociology of law, for example, is desirable as a guide to the development of new law, but such studies do not make up jurisprudence because they treat law not as a norm, but as a causal factor. Such efforts, in their “desire to explain how law ‘actually happens[,]’ [try] to put legal norms on the level with laws of nature.” Unlike the law of gravity, however, a legal norm is not always obeyed; indeed, there must be the possibility of disobedience or the rule would not embody a norm. For this reason, Kelsen disagrees with Oliver Wendell Holmes, Jr.: jurisprudence is not a prediction of what courts will in fact do, as Holmes concluded, but an assertion of what they ought to do.

  At the same time, however, the norms of law are not those of justice. If law reveals its normative face in the presence of social science, it is a mistake to conclude that the standards of normative disciplines—ethics and morality, for example—are coextensive with those of law. This is hard to accept because, Kelsen wrote, we are inclined to identify law with justice in order to justify a given social order. There seems to be an irresistible urge to use jurisprudence as a means of attacking a particular social sys
tem (or promoting one). This, however, is beyond the cognition of legal science. To decide whether a norm is law, one must look to the presence of certain formal elements. After all, there are many wholesome rules of life that are not adopted by the legislature and enforced in actions before courts. Moeover, to decide whether a law is just, one cannot look to any criteria in the law itself, for both just and unjust rules can be (and are) embodied in valid laws.

  This brings up the question: when is a law valid, if it is not when it is just? Kelsen's answer is that a valid law is one that follows that logical form* that is unique to the discipline of law. That particular logical form reflects the internal order of the law itself: law is a specific technique for social control that, unlike such other techniques as religion or morality, which also offer forms of ordering relations, depends upon the invocation of a particular coercive sanction by an enforcing official as the consequence of an unlawful act. This internal logic is therefore the logic of the hypothetical: if X occurs, then Y ought to follow. Therefore, Kelsen argued, the logical form of a legal proposition must also be that of a hypothetical: if an act is performed (or fails to be performed) such that an event ensues, then enforcement by an official of a sanction against the actor responsible for the event can result. This hypothetical states the fundamental logical form of the legal proposition.29 If the advocacy of a crime actually produces that crime, then the police can arrest the advocate; if the failure to maintain proper brakes actually results in an accident, then the magistrate can hold the automobile owner liable for the damages resulting from the accident; if the parties to a contract agree to perform certain acts, and the execution of a contract memorializes this agreement, then a court can enforce the agreement against the parties; and so on.

  This view—which Kelsen called the “Pure Theory” of law—has significant implications for the various views it is attempting to displace. For example, one familiar answer to the question how we know when a law is valid is whether the positive law in question corresponds with natural law. On Kelsen's view, however, positive and natural law can't both be law at the same time. If they are the same, then one scarcely needs positive law; 30 if they are different, then one formulation or the other is not law because both can't correspond to the formal expression indicated and be noncon-tradictory if they are not the same.

  Similarly, Kelsen dismisses Jellinek's proposal that it is the efficacy of law that makes it valid; there is no term for efficacy in the formal proposition. Even an ineffective law would still be law if it corresponded to the formal expression that is inherent in legal rules. Even if, that is, an official were bribed and did not enforce a law, it would still be law—and why not, because if it weren't still law, there would be no need to bribe the official. Indeed one might say that, according to Kelsen's view, law takes place pre-cisely when its exhortations are not wholly effective, i.e., when it has failed to be followed, and an organ of the State is therefore engaged to render a sanction in order to bring about compliance.

  Notice that Kelsen's formulation directs the rule to an organ of the State and not to the subject of the rule. This has the effect of doing away with fictions like the will of the people or the intention of the legislature and other metaphysical entities like the sovereign. All the elements in Kelsen's formula are observable statements of fact (though again it must be said that they are facts about norms—otherwise one runs the risk of confusing Kelsen with the behaviorists). There is no need for Austin's fictional command.

  But if we give up Austin's sovereign, what legitimates a legal rule? The answer is found in Kelsen's description of a legal order as a hierarchy of norms.

  To the question why a certain act of coercion… is a legal act, the answer is: because it has been prescribed by an individual norm, a judicial decision. To the question why this individual norm is valid… the answer is: because it has been created in conformity with a criminal statute. This statute, finally, receives its validity from the constitution, since it has been established by the competent organ in the way the constitution prescribes.31

  What then legitimates the constitution? It is its correspondence with what Kelsen chooses to call “the basic norm” (Grundnorm). The basic norm “may state that the will of the king shall constitute law because he holds his authority by the grace of God, or it may say that what the medicine man declares taboo ought to be avoided because he has communion with the spirits.”

  Of this basic norm many things can be said; indeed Book I of the present work is in part a history of the morphogenesis of such norms. But these things cannot be said within the discipline of jurisprudence, for which the basic norm is a fundamental datum that simply must be taken as it is. For jurisprudence the basic norm is a necessary condition, but not a cause. It will be evident from this description that while he provides an account of the legitimacy of a state's constitution, Kelsen does not provide for the legitimacy of the State itself.

  For Jellinek the State had been a sociological fact, a thought-content common to a group of people; that it could also be the subject of a juristic account posed no problems for him. Jellinek held that the same object can be a datum for different realms of cognition, as a symphony can be described both according to aesthetics and according to physics. Kelsen strongly disputed this. Indeed he took Jellinek's example, the symphony, and turned it against him: the mere physical description of sounds might be called many things, but not a symphony.32 The State is a juristic phenomenon. The sociologist has to presuppose a legal order so that he or she may then describe the State. Therefore no sociological account can provide for the legitimate basis of the State.

  The world is made up of facts.33 Statements that evaluate rules can do so on a factual basis (for example, a change in tort liability might lead to a more or less efficient outcome), but if these statements purport to do so on a normative basis (a more efficient tort rule is a better tort rule), they do not state facts. A thought is a fact; the totality of true thoughts would be a representation of the world. By contrast, all human institutions are nothing more than various orders, sets of rules, and thus they are normative. Institutions, therefore, have no real existence. The legitimation of the State cannot come from the fact of the law because a fact cannot legitimate, can-not provide a normative outcome. The mere presence of a constitution can-not legitimate a state. Nor can this legitimation come from the normative dimension of constitutional law because the State is merely the juridical employee of constitutional law. Some other normative order must legitimate the State.

  The State has the juridical status of a corporation: it exists by virtue of a superior legal order that endows it with validity. Because the validity of a legal order is a matter of its correspondence with a norm, it follows that a state can be legitimated by its correspondence to those rules that are the product of interstate norms. In other words, the state is legitimated by the norms of international law, not constitutional law.

  … All legal formations may be arranged as a continuous line of formations gradually passing into one another. This continuous line starts with the contractual community of private law, leads to the association, the municipality, the country, the member-state, the federal state, the unitary state, unions of states, and treaty communities of international law, and ends in the universal international community.34

  Kelsen's argument for the primacy of international law can be summarized as follows: only one normative system can be valid at one time; if the State was the creator of its own total legal order, these various orders would have to be consistent in order for there to be international law; there is an international legal order because its propositions can be stated in terms of the fundamental legal sentence formalized above; therefore, while it is possible that international law is delegated from the various states, if there is an international legal order—and Kelsen analogizes it to a primitive legal order where self-help is the principal law-enforcement regime—then it is reasonable to conclude that national authority is delegated from intern
ational authority, not the reverse.

  A number of interesting conclusions may be drawn from Kelsen's views. First, the State simply drops out as a real entity. In Kelsen's words, the State “plays the same role as that of God in metaphysics and gave rise to the same problem, the reconciliation of sovereignty and legal limitation,” the problem that Jellinek sought to solve by autolimitation, the problem that theologians struggle with when they undertake to reconcile the existence of free will in the world where there is an omnipotent god. The State is a kind of ghost in the machinery of official acts, which correct analysis can eliminate the way analytical psychology eliminates the soul.

  Second, the status of revolutionary states that challenge the international status quo is delegitimated, whereas otherwise the different moral and political qualities of states are treated relativistically. That is, each is derived from a broad legitimacy and differs from every other insofar as some fundamental, local social norm is being followed, the evaluation of which is beyond the scope of law.

  Third, there is a strong implication that “political theology”—the focus on value-laden dogma and dialectic—unnecessarily makes the achievement of an harmonious legal order more difficult.

  Fourth, the emphasis on the application, rather than the creation, of norms suggests a constitutional emphasis on the judiciary rather than on the executive or legislative.

  In sum, Kelsen's is the jurisprudence of Versailles and Weimar, and as such it was at the epicenter of the political hurricane building in Germany in the 1920s and 1930s.

  SCHMITT

  Kelsen sought a jurisprudence that would support “a government of laws, not of men.” Lawfulness is the measure of legality. Such a jurisprudence is stifling, however, when it confronts a treaty that though lawfully ratified is believed to be the instrument of oppression, or when it encounters parliamentary maneuverings that though procedurally correct are the subject of universal contempt. Hans Linde has written: