© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_14
14. Gunman Situation Vicious Circle and Pure Theory of Law
University of Łódź, Łódź, Poland
As H.L.A Hart’s gunman case serves as an illustration of the weakness of Austin’s theory of command, we could ask if this also true for Hans Kelsen’s Pure Theory of Law. One possible answer could be that the gunman situation doesn’t apply to his theory, as, inter alia, Kelsen’s theory is strictly bound with the concept of primary and secondary norm. When he speaks about legal norms, he distinguishes primary and secondary norms, the most important of which for law is the primary norm, which consists of two elements: the condition which is needed for an execution of a sanction, and the obligation to impose the sanction. Why does the gunman situation not apply here? Let’s imagine a gunman who says: ‘give me the money, or I’ll shoot’. Such a statement seems to be very similar to the construction of a secondary norm, for example: ‘register a car, or receive fine. However, what distinguishes them is the fact that legal norms, especially secondary norms, must refer to a competent authority who represents the state. But this claim seems to be source of another problem. If we agree on such an interpretation, we risk being trapped in a vicious circle defining law: if law is a set of norms which come from the state, and the state is just a legal order, we return to the starting point. In this paper, I will examine whether a more favorable explanation can be found for this dilemma, or if such a vicious circle really exists in Kelsen’s legal theory. I will then demonstrate that the solution is based on a combination of so-called relative categories a priori, dynamic structure of law and primary and secondary norms.
KeywordsHans KelsenPure theory of lawRelative categories a prioriDefinition of lawGunman situation
When a gunman enters a bank, points a gun and issues the command give me the money, then he will probably get what he wants: if not, he will shoot. Such a situation sounds very similar to the description of law provided by John Austin, which consists of such elements as command and threat of force, both of which can be found in the armed robbery described above. However, taking such an approach makes it difficult to identify a difference between law and the coercive factors involved in the situation given above (Dworkin 1978, p. 19). It also might lead to the conclusion that it is unclear whether more sophisticated legal theories based on positivistic paradigms such as Hans Kelsen’s pure theory of law are valid in this context. On the other hand, Herbert L. A. Hart, successfully tries to determine how law can be distinguished from the kind of command delivered by the gunman (Hart 1961, pp. 18–20). Does his solution apply to Kelsen’s pure theory of law? Or does it really fail in the example of the gunman given above?
In Sect. 14.1 of this paper, I will outline this problem. In Sect. 14.2, I will describe another problem with Kelsen’s theory: how to distinguish law from other types of rule. I have chosen two examples, a multinational corporation and the mafia, and I will argue that in kelsenian terms, they represent the two most common normative orders apart from law, and resemble law to some extent. In Sect. 14.3, I will firstly present the most obvious solution, that Kelsen binds all elements of his legal theory with the state, and then I will demonstrate that this solution leads to a further problem: namely, that Kelsen’s legal theory might fall into a vicious circle. However, in Sect. 14.4, I will argue that no such vicious circle exists in Kelsen’s theory, thanks to the presence of such elements as category of ought, basic norm and imputation, and I will suggest other possible solutions. In the final section, I will try to demonstrate that Kelsen’s theory does not fall into a vicious circle and is able to distinguish law from other sophisticated normative orders on the bases of basic norm, imputation and the concept of primary and secondary norm.
14.2 Gunman Situation and Pure Theory of Law
Hart provides a very simple and satisfactory answer for the gunman problem. He notes that the interaction implied by the gunman situation differs from law in several aspects. First of all, law has a general character, while the command provided by the gunman is individual. Secondly, the gunman’s command has a temporal character, valid only in the presence of the gunman in the bank, while law is more eternal. Thirdly, in law, there is no need for a direct relationship between the sovereign and the subject of command as in the bank: the two subjects doesn’t have be at the same place and time (Hart 1961, pp. 21–25).
Let’s examine whether Kelsen’s theory conforms with this description of law. He cannot consider the second and third conditions, since they belong to the sphere of facts. At first glance, Kelsen’s theory is about general norms, however, he considers also those individual ones. Does it mean that Kelsen’s theory is unable to distinguish law from the bandit’s command? This question is crucial for Pure Theory of Law since as Zirk-Sadowski notes Kelsen’s main objective was to build an autonomous science of law, and to achieve this purpose, a definition of law needs to be constructed which would distinguish law from other normative orders, especially sophisticated ones. If he fails to do so, it would mean that the construction of an autonomous science of law in normativistic terms is impossible, since normativity is the preserve of legal science rather law itself (Zirk-Sadowski 2000, p. 49), law is, according to a neokantian paradigm, alogical material. Assuming that the “method of cognition constitutes the subject of cognition”, law itself is not normative, but it gains normativity through a normative method which is valid for the science of law. This argument can be demonstrated in three simple steps:
Law itself is alogical material and:
Method of cognition constitutes the subject of cognition then:
Normative method constitutes normativity of law.
Hence, if this method fails to distinguish law from other normative orders, especially sophisticated ones, it would imply that the Pure Theory of Law fails in two crucial dimensions: first of all, in building a legitimate science of law, since it is impossible to build a science of something which the applied methodology fails to distinguish from other similar objects, and secondly, it fails as a description of law based on the is-ought dichotomy. Kelsen cannot afford that conclusion.
Fortunately for Kelsen, he proposed a dynamic structure for law (Stufenbau) which can distinguish law from such a command. Kelsen chose to adapt an innovative idea first proposed by Adolf Merkl (1931) for his theory, which is arguably one of its most successful elements. According to this concept, law has a specific structure with a dynamic character, which stands in contrast to the static nature of the moral order. The hierarchical relations between norms in the sphere of morality are determined by their content. It is possible to infer the content of a lower norm from the content of a higher one. For example, from the norm love your neighbor as yourself, it can be presumed that it such norms as you shall not kill, you shall not steal, help your neighbor are valid within this moral system. In contrast, law has no such relations. The legal system is characterized by formal links between norms and is based on the rule of delegation. This is to say that an authority higher in the hierarchy passes an act with the competence for a lower authority to pass another act of a lower degree. This chain of competences ends with an individual norm (Kelsen 1934, p. 93): a structure which is rather hard to visualize in the simple gunman example given above.
14.3 Vicious Circle and Pure Theory of Law
Even if we provide a plausible answer to the gunman situation (and any other type of simple orders), there is also another related problem: how to distinguish, in Kelsenian terms, law from a set of rules associated with other formal or informal groups such as the mafia or a multinational corporation? I have chosen this two examples, as they represent the two most common types of complex normative systems which are not law. The reason for choosing the mafia structure as an example was that as such an organization is illegal, and against the legal order, the argument that this structure is in fact incorporated into the legal order and could be considered part of it must be invalid. Such organizations also have their own structure, members of higher and lower ranks and people with more and less power, which makes them hard to distinguish from a legal order.