Kelsen on Justifying Judicial Review

Kelsen on Justifying Judicial Review

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JOSÉ JUAN MORESO*

The function of a constitution is the grounding of validity.

HANS KELSEN1

Praesumptio justitiae semper a principis partibus stet.

SAMUEL PUFENDORF2

(I)

In an important paper on Kelsen’s Pure Theory of Law, Joseph Raz wrote:3

Kelsen’s range of interests and creative impulses were prodigious. In constitutional law,

international law, moral philosophy, political theory, and the philosophy of law he kept a lively

interest throughout his life. To all those areas he made valuable contributions, bringing to them

the fruits of his incisive and uncompromising reflections. On many issues his contributions are of

lasting value and will continue to stimulate students and scholars for many years to come.

I strongly agree with this assessment of Joseph Raz. Moreover, I consider that

the Kelsenian issue of the constitutional review of legislation arises a point where legal

and constitutional theory converges with moral and political theory. On the other hand,

as it is well-known, Kelsen was the architect of the centralized (or concentrated) model

of legislative review, which consisted in creating a special Tribunal, a Constitutional

Court, who is the unique body empowered to guarantee the constitutionality of

legislation. The institution was created in the 1920 Constitution of Austria, based on a

* Professor of Legal Philosophy. Pompeu Fabra University (Barcelona, Spain). E-mail:

[email protected]. 1 This is the last sentence of Kelsen’s ‘The Function of a Constitution’ , in R. Tur and W. Twining (eds.),

Essays on Kelsen, 1986 (Oxford: Oxford University Press, 1986), 123- 147, at 147; the English

translation by I. Steweart of ‘Die Funktion der Verfassung’, Forum, 11 (1964), 583-586, reprinted in H.

Klecatsky, R. Marcic, H. Schambeck (eds.), Die Wiener rechtsteoretische Schule, 2 vols., (Wien: Europa

Verlag, 1968), at vol. II, 1971-1979. The origin of this publication was Kelsen’s contribution to a Law

Conference in Vienna in 1964. 2 Samuel Pufendorf, Elementorum jurisprudentiae universalis, libri II (Cambridge: Joann Hayes, 1672),

observatio V, sec. 21, at 346. 3 Joseph Raz, ‘The Purity of the Pure Theory’, Revue international de philosophie, 138 (1981), 441-459,

at 441; reprinted in Essays on Kelsen, supra note 1, 79-97 and S.L. Paulson and B.L. Paulson (eds.),

Normativity and Norms. Critical Perspectives on Kelsenian Themes, (Oxford: Oxford University Press,

1998), 238-252.

mailto:[email protected]


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Kelsen’s project and he himself served as a judge in this Court between 1921 and 1930.4

Before the Second World War, besides the new republic of Czechoslovakia and

Lichtenstein–which was strongly influenced by Austria-, only the Constitution of the

Spanish Republic in 1931 established a centralized Constitutional Court. After the

Second World War, the institution spread in Europe, first in Italy (1947), then in

Germany (1949), and in France (1958). Afterwards it spread to the new democracies of

Spain (1978) and Portugal (1982), and also to the old democracies of Belgium (1980)

and Luxemburg (1996). Since the fall of communism, the overwhelming majority of

previous communist countries have adopted this model too. Kelsen’s design is a very

fortunate example of successful institutional design.5

In my contribution I shall deal with the legal and political foundations of the

judicial review of legislation in accordance with Kelsenian legal theory and theory of

democracy. Moreover I shall try to show how some Kelsen’s thesis on the theory of

law, particularly his doctrine of finality, and some Kelsen’s thesis on the theory of

democracy, mainly his relativism and scepticism in matters of value, produce important

shortcomings in his account which undermine his own justification of judicial review.

(II)

The core of the Kelsen’s approach to constitutional theory is the idea of the

supremacy of the constitution, an idea with three dimensions:

i) The legal system is hierarchically ordered6 (it has a hierarchical structure,

Stufenbau):7

4 The reasons for abandoning the Austrian Constitutional Court in 1930 are related to the rise of fascism

in Austria. We have a good biography of Kelsen, though excessively short and schematic, Aladár Métall,

Hans Kelsen: Leben und Werk, (Wien: Franz Deuticke, 1969). I agree with Stanley L. Paulson in the fact

that there is a gap in Kelsenian scholarship due to the lack of a full account of Kelsen’s life. Neither has

this gap been completely filled by the recent publication of the autobiographical writings by Kelsen: Hans

Kelsen Werke. Band I: Veröffentliche Scriften 1905-1910 und Selbstzeugnisse. Matthias Jestaedt (ed.)

(Tübingen: Mohr Siebeck, 2007). It would be useful to have greater knowledge about certain aspects of

his life which were also very important to European life after the First World War: his contribution to

drafting the Constitution of Austria, his work as a constitutional judge, the motives for his incorporation

to the University of Cologne in Germany in 1930 and his dismissal in 1933, for instance. See Stanley L.

Paulson, ‘Four Phases in Hans Kelsen’s Legal Theory? Reflections on a Periodization’ Oxford Journal of

Legal Studies, 18 (1998), 153-166, at 166. For an excellent essay on constitutional justice in the Austrian

Constitution, see the doctoral dissertation of Charles Eisenmann, La justice consitutionnelle et la Haute

Cour Constitutionelle d’Autriche, (Paris: Librairie Géneral de de Droit et Jurisprudence, 1928), with a

Preface by Hans Kelsen. 5 A good general overview of this rise of Constitutional Courts in Víctor Ferreres Comella, Constitutional

Courts and Democractic Values. A European Perspective (New Haven & London: Yale University Press,

2009), ch. 1. 6 The idea of a legal system as a genetic system comes from Kelsen’s colleague and friend, Adolf Julius

Merkl, as Kelsen himself acknowledged, e.g., in the new ‘Foreword’ to the second edition of Hans

Kelsen, Hauptprobleme der Staatrechtslehre (Tübingen: J.C.B. Mohr, 1911 first edition, 1923 second


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The hierarchical structure of the legal system (meaning, for now, solely the single-state

legal system) can be represented schematically as follows. Given that the basic norm is

presupposed […], the constitution represents the highest level of the positive law, taking

‘constitution’ in the substantive sense of the word; and the essential function of the

constitution consists in governing organs and the process of general law creation, that is,

of legislation.

ii) The constitution often determines the content of legislation:8

The constitution may determine the content of future statutes, a task not infrequently

undertaken by positive-law constitutions, in that they prescribe or preclude certain

content. […] The catalogue of civil rights and liberties a typical component of modern

constitutions, is essentially a negative determination of this kind. Constitutional

guarantees of equality before the law, of individual liberty, of freedom of conscience,

and so on are nothing but proscriptions of statutes that treat citizens unequally in certain

respects or that interfere with certain liberties.

We can achieve this result, according to Kelsen, either by holding the

legislative and executive authorities personally responsible for enacting an

unconstitutional statute or by providing a legal mechanism for nullifying

unconstitutional statutes.

iii) The constitution has certain degree of rigidity, that is to say, it cannot be

amended by ordinary legislation:9

For its own amendment or repeal, the constitution must provide for procedures different

from, and more demanding than, the usual legislative procedures; in addition to the

procedural form applicable to statutes, there must be specific procedural form

applicable to the constitution.

The rigidity of a constitution, then, is a necessary condition for its supremacy.10

edition). The Foreword to the second edition is included, translated by the editors, in Normativity and

Norms, supra note 3, 3-22, at 13 and note 30. For Merkl, see for instance «Das doppelte Rechtsantlitz.

Eine Betrachtung aus der Erkenntnistheorie des Rechts», Juristische Blätter, 57, (1918) 425-427, 444-

447, 463-465, reprinted in Die Wiener rechtsteoretische Schule, I, supra note 1, 1091-1113. 7 See Hans Kelsen, Introduction to the Problems of Legal Theory, translated by B.L. Paulson and S.L.

Paulson, (Oxford: Oxford University Press, 1992), § 31 (a), at 64 (It is the translation of the first edition

of the Reine Rechtslehre (Wien: Franz Deuticke, 1934)). Similar passages in ‘La garantie jurisdictionnelle

de la Constitution (la Justice constitutionnelle)’, Revue du Droit Public et de la Science Politique en

France et à l’étranger, 45 (1928), 197-257, at 204 (the most comprehensive essay by Kelsen on

constitutional justice); General Theory of Law and State, translated by A. Wedberg, (Cambridge, Mass.:

Harvard University Press, 1945), 124-125, Pure Theory of Law, translated by M.Knight, (Berkeley:

California University Press, 1967), § 35 (a), 221-223 (This is the translation of the second edition of the

Reine Rechtslehre (Wien: Franz Deuticke, 1960)). 8 Hans Kelsen, Introduction to the Problems of Legal Theory, supra note 7, § 31 (a), at 64-65, ‘La

garantie jurisdictionnelle de la Constitution’, supra note 7, 205; General Theory of Law and State, supra

note 7, 125-126, Pure Theory of Law, § 35 (a), supra note 7, 223-224. 9 Hans Kelsen, Introduction to the Problems of Legal Theory, supra note 7, § 31 (a), at 65, ‘La garantie

jurisdictionnelle de la Constitution’, supra note 7, 205; General Theory of Law and State, supra note 7,

1259-260, Pure Theory of Law, supra note 7, § 35 (a), 224. 10 See for this point the lucid appendix of Juan Carlos Bayón in ‘Democracia y derechos: problemas de

fundamentación del constitucionalismo’ in J. Betegón, F. Laporta, J.R. Páramo, L. Prieto Sanchís (eds.),

Constitución y derechos fundamentales, (Madrid: Centro de Estudios Políticos y Constitucionales, 2004),


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The theses of the hierarchical order of the legal system in which a constitution

determines the content of legislation and, for this reason, is supreme entails as a

conclusion the idea that ‘an invalid statute is no statute at all; it is legally nonexistent,

and no legal statement can therefore be made about it’.11

Kelsen obviously realizes that there can be Parliaments which enact statutes

apparently contrary to the Constitution and, for this reason, considers that the best

constitutional guarantee is to confer the power to declare null and void the statutes

containing unconstitutional provisions. He considers also that conferring this power to

the same Parliament will be inefficient, and one extreme case of violation of the maxim:

‘Nemo iudex in causa sua’. Therefore, it is appropriate to provide legal mechanisms

which entrust either the judiciary in general or a specific Court. Judges and Courts,

specific or not, are independent from the legislator.12

In fact, this argument is very similar to the argument in favour of the judicial

review in the famous n.79 of The Federalist by A. Hamilton: 13

Limitations of this kind can be preserved in practice no other way than through the medium of

courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the

Constitution void. Without this, all the reservations of particular rights or privileges would

amount to nothing.

And Hamilton’s reason for this trust in the judiciary is again similar to

Kelsen’s:14

There is no position which depends on clearer principles, than that every act of a delegated

authority, contrary to the tenor of the commission under which it is exercised, is void. No

legislative act, therefore, contrary to the Constitution, can be valid.

67-118. Bayón defends, with good arguments, that the rigidity of a constitution is only a necessary

condition of the supremacy, but not a sufficient condition because a constitution is supreme only if it is

accepted as supreme in its legal culture. For example, if the clauses of a written constitution limiting

legislation in certain areas are considered only with programmatic value, then the constitution is not

supreme. It seems to me that it is in this way that the critique to the idea of supremacy of the constitution

in Michel Troper should be understood, ‘The Logic of Justification of Judicial Review’, International

Journal of Constitutional Law, 1 (2003), 99-121 and ‘Marshall, Kelsen, Barak, and the Constitutional

Fallacy’, International Journal of Constitutional Law, 3 (2005), 24-38. 11 This is a statement of Pure Theory of Law, 35 (j), 271, but in a work dating back to 1914 (more than

half century before) Kelsen wrote: ‘An act of state that is null is non-existing as an act of state from a

legal-logical perspective. Everyone is entitled to refuse to attribute such an act that occurs with the claim

to be an act of the state’. Hans Kelsen, ‘Über Staatsunrecht’ , Die Wiener rechtsteoretische Schule, I,

supra note 1, 957-1057, at 1004 (I take the English translation of this passage from Lars Vinx, Hans

Kelsen’s Pure Theory of Law. Legality and Legitimacy, (Oxford: Oxford University Press, 2007), 88). 12 Hans Kelsen, ‘La garantie jurisdictionnelle de la Constitution’, supra note 7, 223. Insisting on the

importance of this point, see Horacio Spector, ‘Judicial Review, Rights, and Democracy’, Law and

Philosophy 22 (2003), 285–334, at 300-301. A criticism of the argument that no one can be judge in their

own cause to justify judicial review in Jeremy Waldron, Law and Disagreement, (Oxford: Oxford

University Press, 1998), 297-298. 13 Alexander Hamilton, James Madison, John Jay, The Federalist Papers, (New York: Buccaneer Books,

1999), n. 79, at 395. 14 Ibidem.


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And as it is well-known this is also the doctrine which opens the practice of

judicial review in American constitutional history:15

Between these alternatives there is no middle ground. The constitution is either a superior,

paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts,

and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is

not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the

people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the

fundamental and paramount law of the nation, and consequently the theory of every such

government must be that an act of the legislature repugnant to the constitution is void.

Kelsen showed a weak preference for his own model of centralized system of

judicial review compared with the decentralized system in force in U.S. Kelsen claimed

to avoid the danger of a contradictory practice of the law-applying bodies, a danger very

important in Austria. As it happens in continental European countries in general, given

that there are administrative bodies independent of the courts, administrative courts

distinct from the ordinary courts and, above all, because precedents are not binding and,

therefore, the decisions of the European Supreme Courts, are not binding upon all other

courts and judges, as the decisions of the US Supreme Court are.16

Even though Kelsen accepted that there is no a uniform solution suitable for all

possible Constitutions, given that the best solution depends on the particularities of each

legal and social culture,17 his preference for a centralized model is related to the

importance that he gives to the value of legal certainty. And, obviously, being true that a

certain degree of certainty is preserved with the diffuse model of judicial review

through the fact that lower courts are obliged to follow the doctrines established by the

supreme court, it is also true that a Court being the only power with constitutional

jurisdiction avoids the existence of contradictory doctrines on many constitutional

issues maintained by different lower courts when these issues are not the object of

litigation in the Supreme Court.18

Kelsen also ponders the objection whether the centralized model of

constitutional review of legislation violates the doctrine of the separation of powers. His

response is negative because, in his view, the Constitutional Court has in fact a negative

legislative power: ‘The decision of the Constitutional Court by which a statute was

annulled had the same character as a statute which abrogated another statute. It was a

15 Marbury v. Madison, 5 U.S. 137 (1803). 16 Hans Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American

Constitution’, The Journal of Politics, 4 (1942), 183-200, at 188-189. 17 Hans Kelsen, ‘La garantie jurisdictionnelle de la Constitution’, supra note 7, 226. 18 An interesting and sympathetic presentation of the defense of centralized system by Kelsen founded in

the legal certainty in Víctor Ferreres Comella, Constitutional Courts and Democractic Values. A

European Perspective, supra note 5, ch. 3.


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negative act of legislation’.19 The doctrine of the separation of powers should be well

understood as a doctrine of sharing power with diverse checks and balances.20

(III)

Kelsenian theory of democracy has two main aims: a) First of all, it provides a

justification of the rule of majority, and b) second, it contains a robust way to protect

minorities.21

The rule of majority, in accordance with Kelsen, presupposes the equal freedom

of all citizens:22

The principle of majority, the greatest possible approximation to the idea of freedom in political

reality, presupposes as an essential condition the principle of equality. For the view that the

degree of freedom in society is proportionate to the number of free individuals implies that all

individuals are of equal political value and that everybody has the same claim to freedom, that is,

the same claim that the collective will be in concordance with his individual will.

It seems that the presupposition of equal freedom for all is, for Kelsen, an axiom

which cannot be proved. Kelsen defends that his theory of democracy is founded on

philosophical relativism. Sometimes, Kelsen’s relativism seems to entail that the ideal

of democracy is conditional to the acceptance of the freedom and equality for all. But,

then, his conception should ground the idea of equal freedom. If the ideal of democracy

presupposes equal freedom for all, then we need some argument in favour of equal

freedom; without this argument the ideal of democracy lacks of any support.23

More regrettable, in my view, is the confusion between two different senses of

‘philosophical relativism’, which do not allow us to obtain the same consequences.

In one sense, philosophical relativism means for Kelsen something like emotivist

account of value judgments:24

19 Hans Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American

Constitution’, supra note 16, 187 and Hans Kelsen, ‘La garantie jurisdictionnelle de la Constitution’,

supra note 7, 224-225. 20 Charles Eisenmann, La justice consitutionnelle et la Haute Cour Constitutionelle d’Autriche, supra

note 4, 105-107, finely argues that, on the view of the separation of powers, it does not make the

difference either the unconstitutional statute could be annulled erga omnes or only unapplied in the

concrete case. 21 Here there should be considered, at least, the following works of Kelsen: Vom Wesen und Wert der

Demokratie, 2nd ed. (Tubingen : J.C.B. Mohr, Paul Siebeck, 1929); ‘Foundations of Democracy’, Ethics

66, (1965), 1-101 and What is Justice? Justice, Law, and Politics in the Mirror of Science (Berkeley:

California University Press, 1957). 22 ‘Foundations of Democracy’, supra note 21, 25. Also Vom Wesen und Wert der Demokratie, supra

note 21, 9. 23 In this account of Kelsen’s relativism I have benefited from Lars Vinx, Hans Kelsen’s Pure Theory of

Law, supra note 11, 134-144. See also Jes Bjarup, ‘Kelsen’s Theory of Law and Philosophy of Justice’, in

Essays on Kelsen, supra note 1, 273-304 and Philip Pettit, ‘Kelsen on Justice: A Charitable Reading’, in

Essays on Kelsen, supra note 1, 305-320. 24 ‘Foundations of Democracy’, supra note 21, 17.


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Philosophical relativism, on the other hand, as antimetaphysical empiricism (or positivism),

insists upon a clear separation of reality and value and distinguishes between propositions about

reality and genuine value judgments, which, in the last analysis, are not based on a rational

cognition of reality but on the emotional factors of human consciousness, on man's wishes and

fears. Since they do not refer to values immanent in an absolute reality, they cannot establish

absolute, but only relative, values. A relativistic philosophy is decidedly empiristic and

rationalistic and consequently has an outspoken inclination to skepticism.

In another opposite sense of the word, philosophical relativism seems to imply

only epistemic prudence –in Kantian clothes-:25

Philosophical absolutism is the metaphysical view that there is an absolute reality, i.e., a reality

that exists independently of human cognition. Hence its existence is beyond space and time, to

which human cognition is restricted. Philosophical relativism, on the other hand, advocates the

empirical doctrine that reality exists only within human cognition, and that, as the object of

cognition, reality is relative to the knowing subject. The absolute, the thing in itself, is beyond

human experience; it is inaccessible to human knowledge and therefore unknowable.

Philosophical relativism as epistemic prudence can justify perhaps the protection of

minorities, and, therefore, endorses mechanisms to preserve minority voices, for instance, by

entrenching certain rights and liberties strongly enhanced by the democratic process: the right of

voting, the right of political participation, freedom of speech, freedom of conscience, and so on.

In this sense, Kelsen wrote:26

It may be that the opinion of the minority, and not the opinion of the majority, is correct. Solely

because of this possibility, which only philosophical relativism can admit -that what is right to-

day may be wrong tomorrow- the minority must have a chance to express freely their opinion

and must have full opportunity of becoming the majority.

Nevertheless, Kelsen also wants philosophical relativism to take into account the

subjectivity of value judgments in terms of ethical emotivism and, for this reason,

democracy is only possible if all value judgments are relative:27

That value judgments have only relative validity -one of the basic principles of philosophical

relativism- implies that opposite value judgments are neither logically nor morally excluded. One

of the fundamental principles of democracy is that everybody has to respect the political opinion

of everybody else, since all are equal and free.

Tolerance, minority rights, freedom of speech, and freedom of thought, so characteristic of

democracy, have no place within a political system based on the belief in absolute values.

In my view, Kelsen thought that these two kinds of arguments in defence of (two

kinds of) relativism are actually only one. For this reason, Kelsen considered that

relativism, democracy and subjectivity of value are necessarily connected.

Despite this view, Kelsen realized that there is a tension between the democratic

principle and liberal principles: 28‘It is of importance to be aware that the principle of

democracy and that of liberalism are not identical, that there exists even a certain

25 ‘Foundations of Democracy’, supra note 21, 16. 26 ‘Foundations of Democracy’, supra note 21, 39. 27 ‘Foundations of Democracy’, supra note 21, 38-9. 28 ‘Foundations of Democracy’, supra note 21, 4.


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antagonism between them’. But he considered that a convenient means of protection of

minorities is precisely the constitutional review of legislation.29

Kelsen also added that to empower a Constitutional Court to adjudicate the

constitutionality of legislation using in the constitutional text general expressions as

justice, liberty, equality, morality and so on would ‘give to the Court such a power that

should be considered as clearly unbearable’.30

In his debate with Carl Schmitt on who should be the guardian of the

Constitution, Kelsen strongly defended pluralism in a democratic society against

Schmitt’s defence of an autocratically-governed homogenous society. However, he

accepted that the resort to general and abstract values in the Constitution increases the

discretionary power of the Court and, even though every legal act (legislative,

administrative, judicial) is virtually altogether an act of application of law and an act of

creation of law (according to the hierarchical order of the legal system),31 it sacrifices

excessively the democratic power of the Parliament. He wrote for instance:32

What the majority of judges of this court will take as just can stand in complete contradiction to

what the majority of the people holds, and will certainly stand in contradiction with what the

parliamentary majority holds who after all enacted this law. It is self-evident that the idea of a

constitution excludes making a law enacted by parliament dependent on the use of such

ambiguous words as justice. For, without further specification, the law is then dependent on the

free discretion of a collegial body which has been assembled in accordance with more or less

arbitrary political criteria.

(IV)

If, as it seems that Kelsen suggested, the establishment of a Constitutional Court

was in a position to continually preserve legislation according to the Constitution and

the protection of minorities in democracy is also guaranteed by this Court, then we

would achieve a fine justification of the constitutional review of legislation.

29 ‘La garantie jurisdictionnelle de la Constitution’, supra note 7, 252-253. 30 ‘Mais la puissance du tribunal serait alors telle qu’elle devrait être considérée comme simplement

insupportable’. ‘La garantie jurisdictionnelle de la Constitution’, supra note 7, 241. 31 See, for instance, Introduction to the Problems of Legal Theory, § 31 f, 70. 32 Hans Kelsen, ‘Wesen und Entwicklung der Staatsgerischtsbarkeit’, Veröffentlichungen der Vereinigung

der Deutschen Staatsrechtslehrer, 5 (1929), 30-88; also published in Die Wiener rechtsteoretische Schule,

II, supra note 1, 1813-1871, in 1864 (the English translation comes from David Dyzenhaus, Legality and

Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, (Oxford: Oxford University

Press, 1999), 152. See also ‘Wer soll der Hüter der Verfassung sein?’, Die Justiz, 6 (1930-1931), 576-

628; also published in Wiener rechtsteoretische Schule, II, supra note 1, 1873-1912. This Kelsenian

work is a response to the most critical jurist in Weimar, Carl Schmitt. He was against liberalism and

democracy and a supporter of Nazism; he even contributed to ousting Kelsen from his position as

Professor at the University of Cologne in 1933 (without regard for Kelsen’s cooperation in 1929 to

naming Schmitt as Professor in the same university). See Carl Schmitt, Der Hüter der Verfassung,

(Berlin: Duncker & Humblot, 1985, first pub. 1931). The book of Dyzenhaus, Legality and Legitimacy is

a fine introduction to the legal and constitutional theory in Weimar and a good account to Schmitt’s and

Kelsen’s theories in chs. 2 and 3.


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A Constitutional Court would be one of the best tools in order to warrant

democratic self-government in our present societies, which are characterized by the fact

of pluralism.33 The Constitutional Court gathers all together reasonable pluralism,

democratic self-government, and rule of law (the core of the rule of law, obviously,

consists in the fact that every act of the authorities is brought about in accordance with

the law and, in this way, our government is a government of laws and not of men).

In the two following paragraphs, I shall try to show that unfortunately there are

serious threats in the horizon of this Kelsenian project.

(V)

In one of the multiple places where Kelsen criticised the doctrine of Natural

Law, he used the following argument to draw attention to its futility:34

This means that if an individual considers a rule of positive law to be contrary to natural law, it is

not the opinion of the private individual but the opinion of the competent authority of the state

which prevails. In discussing the question as to whether a tyrant may be brought to order by the

people Pufendorf expresses the highly characteristic view: ‘ the presumption of justice stands

always on the side of prince’, which means that there is always a presumption that the positive

law is the natural law.

Or also:35

If the positive law is, as all followers of the natural-law doctrine assert, valid only so far as it

corresponds to the natural law, any norm created by custom or stipulated by a human legislator

which is contrary to the law of nature must be considered null and void. This is the inevitable

consequence of the theory which admits the possibility of positive law as a normative system

inferior to natural law. The extent to which a writer abides by this consequence is a test of his

sincerity. Very few stand this test. Some philosophers avoid the test by proving that a conflict

between positive and natural law is impossible.

I am afraid that Kelsen’s doctrine is a clear victim of the same argument,

substituting ‘natural law’ for ‘constitution’ and ‘positive law’ for ‘legislation’ and,

therefore, he cannot overcome his own test of sincerity.36 Actually, Kelsen sustains that

there is no possible conflict between norms at different levels.

The Kelsenian view is the sum of two very controversial theses: the doctrine of

alternative provisions and the doctrine of finality, which are entangled.

33 This the central issue in John Rawls, Political Liberalism, (New York: Columbia University Press,

1993), p. xvii: ‘The fact of reasonable pluralism’. 34 Hans Kelsen, What is Justice?, supra note 21, 147. 35 What is Justice?, supra note 21, 144. 36 I used this argument in José Juan Moreso, ‘Verfassungswidrige Normen’, Rechtstheorie, 25 (1994),

417-449.


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The doctrine of alternative provisions is as follows:37

That the constitution does aim for the validity of the so-called unconstitutional statute is shown

in the fact that it prescribes not only the statutes should be created in a certain way and have (or

not have) a certain content, but also that if a statute was created other than in the prescribed way

or has other than the prescribed content, it is not to be regarded as null and void, but is to be

valid until it is invalidated by the designated authority –say, a constitutional court- in a procedure

governed by the constitution.

The doctrine of finality is grounded in the Kelsenian idea that the judicial

decisions have constitutive character, and thus ‘there is finally a court procedure that

can no longer be the subject of another court procedure. Then the borderline case of an

ultimate court procedure must be accepted as a fact in itself. This happens when the

decision of the court of last instance acquires the force of law’.38

The doctrine of alternative provision and the doctrine of finality entail that there

is no nullity in the legal system, a legal norm belonging to a legal order cannot be void

(null), it can only be voidable (annullable): ‘In this respect the law is like King Midas:

just as everything he touched turned to gold, so everything to which the law refers

assumes legal character. Within the legal order, nullity is only the highest degree of

annullability’.39

In conclusion, for Kelsen there are no unconstitutional norms: a statute enacted

by the Parliament is valid while it is not rejected by an empowered final Court. At the

end of the day, the final decision of a Court is an infallible decision.40

In fact, Kelsen poses a difficult question, but it is a question without solution, in

my view. Any system of rules, which also has procedures to determine whether the

rules are violated or not, suffers from this malady. It will always be possible that the

authority established by a procedure makes a decision contrary to the rule. The legal

systems are, in Rawlsian terms, models of imperfect procedural justice,41 and Kelsen

tried to make legal systems models of pure procedural justice.

The doctrine of alternative provisions has often been criticized for this reason,42

and I do not consider it necessary to insist on the ad hoc aspect of the solution. The

37 Hans Kelsen, Introduction to the Problems of Legal Theory, supra note 7, § 31 (h), at 72; General

Theory of Law and State, supra note 7, 156, Pure Theory of Law, § 35 (j), 271-274. 38 Pure Theory of Law, § 35 (g), supra note 7, 240. 39 Pure Theory of Law, § 35 (k), supra note 7, 278. 40 Kelsen made a reference to the infallibility of the final decision in ‘Über Staatsunrecht’, supra note 11,

1057. 41 John Rawls, A Theory of Justice, (Cambridge, Mass.: Harvard University Press, 1971), 85-87. 42 Roberto J. Vernengo, ‘La función sistemática de la norma fundamental’ in Revista Jurídica de Buenos

Aires, I-II (1960): 207-225. See also Carlos S. Nino, ‘El concepto de validez y el problema del conflicto

entre normas de diferente jerarquía en la teoría pura del Derecho’ in Derecho, Filosofía y Lenguaje.

Homenaje a Ambrosio L. Gioja, (Buenos Aires: Astrea, 1976), 131-144, J.W. Harris, ‘Kelsen’s Concept

of Authority’ , Cambridge Law Journal, 36 (1977): 353-363, Paul Amselek, ‘Réflexions critiques autour

de la conception kelsenienne de l’ordre juridique’ Revue de Droit Publique, 94 (1978): 5-19, Albert

Calsamiglia, Kelsen y la ciencia juridica, (Barcelona: Ariel, 1978), Stanley L. Paulson, ‘Material and

Formal Authorisation in Kelsen’s Pure Theory’, Cambridge Law Journal, 39 (1980): 172-193, G. Maher,


11

doctrine of finality has recently received new attention. K. Himma in a series of recent

contributions has defended the importance of the doctrine of finality for our theory of

legal validity.43 In virtue of this doctrine he defends the following criterion of legal

validity:44

A duly enacted norm is legally valid unless declared unconstitutional according to what a

majority of the Justices decide is, as an objective matter, the morally best interpretation of the

substantive norms of the Constitution.

As you can see: a view perfectly Kelsenian. But, if things were as the doctrine

of finality put them, then there would be no difference between infallibility and

finality.45 Raz reconstructs nicely the question as follows:46

Courts have the power to make an authoritative determination of people’s legal situation. Private

individuals may express their opinions on the subject but their views are not binding. The fact

that a court can make a binding decision does not mean that it cannot err. It means that its

decision is binding even if it is mistaken.

It is possible, then, distinguishing validity as membership to a legal system and

validity as applicability; I mean, validity as a binding force for the legal bodies.47 And,

‘Customs and Constitutions’, Oxford Journal of Legal Studies 1 (1981): 167-176, Ricardo A. Guibourg,

Derecho, sistema y realidad, (Buenos Aires: Astrea, 1976), Inés Weyland, ‘Idealism and Realism in

Kelsen’s Treatment of Norms Conflict’ in Essays on Kelsen, supra note 1, 249-272, Juan Ruiz Manero,

Jurisdicción y normas (Madrid: Centro de Estudios Constitucionales, 1990), José Juan Moreso,

‘Verfassungswidrige Normen’, supra note 36, and the following works included in Letizia

Gianformaggio, Stanley L. Paulson (eds.), Cognition and Interpretation of Law, (Torino: Giappichelli,

1995): Eugenio Bulygin, ‘Cognition and Interpretation of Law’, 11-38, Carlos S. Nino, ‘Marshall’s

‘Logic’ and Kelsen’s ‘Problem’’, 219-230, Sandro Nannini, ‘Legal Validity and Conformity to Law’,

231-246, Juan Ruiz Manero ‘On the Tacit Alternative Clause’, 247-256, Letizia Gianformaggio, ‘Pure

Theory of Law and Tacit Alternative Clause: A Paradox?’, 257-273; and Paolo Comanducci, ‘Kelsen e la

clausola alternativa tacita’ in Paolo Comanducci, Assagi di metaetica due (Torino: Giappichelli, 1998),

pp. 139-158. 43 Kenneth Einar Himma, ‘Making Sense of Constitutional Disagreement: Legal Positivism, the Bill of

Rights, and the Conventional Rule of Recognition in the United States’, Journal of Law and Society, 42

(2003), 149-218, ‘Final Authority To Bind With Moral Mistakes: On The Explanatory Potential of

Inclusive Legal Positivism’, Law and Philosophy, 24 (2005): 1-45 and ‘Understanding the Relationship

between the US Constitution and the Conventional Rule of Recognition’, in M.D. Adler, K. E. Himma

(eds.), The Rule of Recognition and the U.S. Constitution, (Oxford: Oxford University Press, 2009), 95-

121. 44 ‘Understanding the Relationship between the US Constitution and the Conventional Rule of

Recognition’, supra note 43, 120. 45 See the illuminating pages of Hart in H.L.A. Hart, The Concept of Law, 2 ed. P. Bulloch and J. Raz

eds., (Oxford: Oxford University Press, 1994), p. 141-147. See also Ronald Dworkin, ‘Judicial

Discretion’, The Journal of Philosophy, 60 (1963), 624-638, at 626-627. 46 Joseph Raz, Practical Reason and Norms, 2 ed., (Princeton: Princeton University Press, 1990), 134-

135. 47 Usually the distinction is applied to cases of adjudication of foreign law in a local municipal legal

system or, also, to cases of adjudication of repealed criminal statutes in virtue of the principle in criminal

law of preference of the less severe sanction. The distinction applied to the case of unconstitutional norms

mistakenly declared valid for a final authority in Eugenio Bulygin, ‘Algunas consideraciones sobre los

sistemas jurídicos’, Doxa 9 (1991), 257-279, at 267, Carlos S. Nino, ‘A Philosophical Reconstruction of

Judicial Review’, Cardozo Law Review ,14 (1993), 799-846, José Juan Moreso, Legal Indeterminacy and

Constitutional Interpretation, trad. de Ruth Zimmerling, (Dordrecht: Kluwer Academic Publishers,

1998), 105-115, José Juan Moreso, Pablo Navarro, ‘The Reception of Norms, and Open Legal Systems’

in Normativity and Norms, supra note 3, 273-291 and Wil Waluchow, ‘Four Concepts of Validity.


12

thus, actually, courts themselves seem to accept this thesis, e.g. in a relatively recent

case, Lawrence v. Texas,48 the U.S. Supreme Court decided to overrule Bowers v.

Hardwick,49 and reversed the judgment of the Texas Fourteenth District Court of

Appeals, considering that criminal convictions for adult consensual sexual intimacy in

the home violate vital interests in liberty and privacy protected by the Due Process

Clause of the Fourteenth Amendment. The Court asserts: ‘Bowers was not correct when

it was decided, and it is not correct today. It ought not to remain binding precedent.

Bowers v. Hardwick should be and now is overruled’.50 If you allow me this frivolity, I

could say that Julia Roberts was right, because at the beginning of the movie The

Pelican Brief, the character played by Julia Roberts, a Law School student, discusses

with her Professor of Constitutional Law about Bowers, arguing that the Georgia statute

making it a criminal offense to engage in sodomy was unconstitutional. The Professor

replies: ‘Well, the Supreme Court disagrees with you, Miss Shaw. They found that the

state did not violate the right of privacy. Now, why is that?’, and the student answers:

‘Because, they are wrong’. The moral should be: we should distinguish between finality

and infallibility of judicial decisions in a Hartian way and we could name this

distinction Julia Robert’s doctrine. It should be clear, however, that I am not arguing

that Lawrence is lacking in controversy, indeed it is not; I am only trying to show that

courts themselves consider that they can be wrong.

Briefly: the Kelsenian doctrines of alternative provisions and finality undermine

the hierarchical structure of the legal system and, in my view, make of the rule of law an

illusion disguised of an ideal.51

In all fairness, it is necessary to acknowledge that Kelsen did not try to take this

position and the line of reasoning that it ultimately entails: that is to say, to conceive all

Reflections on Inclusive and Exclusive Positivism’, in M.D. Adler, K. E. Himma (eds.), The Rule of

Recognition and the U.S. Constitution, (Oxford: Oxford University Press, 2009), 123-143. See, for the

distinction in general, Eugenio Bulygin: ‘Time and Validity’, in A. A. Martino (ed.), Deontic Logic,

Computational Linguistics and Legal Information Systems, (Amsterdam: North Holland, 1982), pp. 65-

82, Pablo E. Navarro, José Juan Moreso ‘Applicability and Effectiveness of Legal Norms’, Law and

Philosophy, 16 (1997), 201-219, Jules L. Coleman, ‘Incorporationism, Conventionalism, and the Practical

Difference Thesis’, Legal Theory, 4 (1998), 381-426 , at 404-405, Joseph Raz, The Authority of Law

(Oxford: Oxford University Press, 1979), 101-102, 119-120, W. J. Waluchow, Inclusive Legal Positivism,

(Oxford: Oxford University Press, 1994), 157 , Scott J. Shapiro, ‘On Hart’s Way Out’ en Legal Theory, 4

(1998), 469-508, at 506, Matthew Kramer, ‘How Moral Principles Can Enter into the Law’ en Legal

Theory, 6 (2000), 103-107 and ‘Of Final Things. Morality as One of the Ultimate Determinants of Legal

Validity’, Law and Philosophy, 24 (2005): 47-97. 48 539 U.S. 558 (2003). 49 478 U.S. 186 (1986). 50 Supra note 48. For Julia Robert’s doctrine, see José Juan Moreso, ‘Putting Legal Objectivity in its Place’ in P. Comanducci, R. Guastini (eds.), Analisi e Diritto. Ricerche di giurisprudenza analitica, (Torino: Giappichelli, 2005) 243-252 and José Juan Moreso, La Constitución: modelo para armar, (Madrid: Marcial Pons, 2009), ch. 9. 51 Lars Vinx in Hans Kelsen’s Pure Theory of Law, supra note 11, (particularly chs. 2-5) vindicates a

reading of Kelsen’s theory as a normative theory committed with the ideal of rule of law and close to the

so-called normative positivism. In any case, being either normative or descriptive, the theory should

relinquish these doctrines in order to become a plausible theory.


13

law as judge-made law, in accordance with the scepticism of American legal realism.52

Perhaps the following passage summarizes quite well the Kelsenian view:53

It could also be argued that the principle of res iudicata, which confers validity on any judicial

decision which does not correspond to a valid materially determinate general legal norm,

amounts to a conferral on the judge by positive law of the power to decide concrete cases

according to his discretion, and in particular according to any principle he considers to be just.

But there is this difference, that if there are valid general legal norms whose meaning is that they

are to be applied by the courts, then as a rule the courts do apply them, and it is only

exceptionally that judicial decisions which do not correspond to the general norms become valid.

The principle of res iudicata, that is, the principle of litigation must come to an end, is not in fact

an abrogation but only a qualification of the Principle of Material Legality of judicial decisions.

(VI)

For Kelsen, as we know, philosophical relativism provides the grounding for the

theory of democracy. It is the way in which Kelsen thought to refute the justifications of

autocracy, which he always saw as linked to absolutist views in moral and political

philosophy.54 Kelsen understands two very different things by philosophical relativism,

as I presented in section (III). On the one hand, we have philosophical relativism as

epistemic prudence. Epistemic prudence is, in my view, fine, and it is a virtue

compatible with the deliberation and the provision of reasons which characterizes

democracy. However, epistemic prudence cannot serve as the grounding for democracy.

It is a partial element whose logical behaviour is similar in theoretical and in practical

matters, as it is not particularly linked to political matters. It is, without doubt, an

important element of democratic procedures: it is intertwined with, for instance, open-

mindedness and a permanent disposition to revise our beliefs.

On the other hand, philosophical relativism entails for Kelsen a subjectivist

analysis of value judgments: an emotivist account of ethical matters. But, as it is

obvious, endorsing a sceptical view in morality implies neither tolerance nor

democracy. As Juan Ruiz Manero wrote, analyzing this point in Kelsen’s theory:55 ‘To

52 In his posthumous work, Kelsen criticises Morris R. Cohen who accepted that courts create norms by

the interpretation of the text of statutes. And he wrote: ‘The Bible and Shakespeare’s Hamlet are also

interpreted, but it would not occur to anyone to claim that the Bible was written by its interpreters or that

Hamlet was written not by Shakespeare but by its interpreters’. Hans Kelsen, General Theory of Norms,

German ed. 1979, English translation and edition by Michael Hartney, (Oxford: Oxford University Press,

1991), note 170, at 415. See John Chipman Gray, The Nature and Sources of Law, (London: Macmillan,

1921), 2nd ed., Morris R. Cohen, ‘The Process of Judicial Decision’, American Law Review, 48 (1914),

161-198. For the American Legal Realism can see the sympathetic account of Brian Leiter, ‘Legal

Realism and Legal Positivism Reconsidered’, Ethics 111 (2001), 278-301. This kind of scepticism is also

sustained in Continental Europe, see the Italian version in Riccardo Guastini, ‘Lo scettecismo

interpretativo revisitato’, Materiali per una storia della cultura giuridica, 36 (2006), 227-236 and the

French version in Michel Troper, ‘Une théorie réaliste de l'interprétation’, in Olivier Jouanjean (ed.),

Dossier Théories réalistes du droit, (Strasbourg: PU de Strasbourg, 2001), 51-78. 53 Hans Kelsen, General Theory of Norms, supra note 52, ch. 58. Xxii, at 249. 54 ‘Foundations of Democracy’, supra note 21, 38. 55 Juan Ruiz Manero, ‘Presentación: Teoría de la democracia y crítica del marxismo en Kelsen’, (my

English translation) in Hans Kelsen, Escritos sobre la democracia y el socialismo, ed. by J. Ruiz Manero,


14

hold that from ethical relativism can be rationally grounded the value of democratic

tolerance –or any other value- is inconsistent with the own ethical relativism, which

holds precisely the impossibility of grounding rationally our value options’.

Philosophical and ethical relativism should deserve greater attention and, in fact,

it is currently a central philosophical issue,56 but as far as I know, no one at this time

that relativism is conceptually or contextually linked to democracy and tolerance.

I shall limit myself to discussing a charitable reading of Philip Pettit, who in

analyzing Kelsenian relativism suggested that if we accept the distinction between

evaluations and prescriptions, perhaps Kelsen could be considered relativist with respect

to prescriptions but not with respect to evaluations.57 This account presupposes that

evaluations are the grounding of prescriptions. But, unfortunately, Kelsen considered

that prescriptions are the grounding of evaluations:58 ‘A value-judgment presupposes

the validity of a norm; it describes the relation of some object, in particular a certain

behaviour, to this norm, and thus characterizes the behaviour as “good” or “bad”’.

If we abandon ethical relativism, perhaps we could moderate the Kelsenian

criticism of the presence of abstract principles and values in our constitutional Charter

of Rights. It is obvious that there is pervasive disagreement about the content and the

scope of our fundamental rights and liberties, but there is no disagreement on every

issue, and the Constitutional Court is not a bad arena to generate good and new

arguments in favour of or against a certain constitutional view.59

(VII)

In conclusion, the Kelsenian justification of judicial review should change some

elements of its strategy. As Kelsen’s account shows, we need a good combination of

ideals, ideals which sometimes ride in a delicate balance, such as the rule of law, the

protection of rights and the democratic self-government. Nevertheless, Kelsen’s

(Madrid: Debate, 1988), 19. See also for this kind of criticism of Kelsen’s relativism Jes Bjarup,

‘Kelsen’s Theory of Law and Philosophy of Justice’, in Essays on Kelsen, supra note 1, 273-304, David

Dyzenhaus, Legality and Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, supra

note 32, 138-149, Lars Vinx, Hans Kelsen’s Pure Theory of Law, supra note 11, 134-144. 56 See for philosophical relativism in general, Maria Baghramian, Relativism, (London: Routledge, 2004),

Steven D. Hales, Relativism and the Foundations of Philosophy (Cambridge, Mass.: MIT University

Press, 2006), François Recanati, Perspectival Thought. A Plea for (Moderate) Relativism, (Oxford:

Oxford University Press, 2007) and Manuel García-Carpintero, Max Kölbel, Max (eds.), Relative Truth,

(Oxford: Oxford University Press, 2008), for ethical relativism in particular David B. Wong, Natural

Moralities. A Defense of Pluralistic Relativism (Oxford: Oxford University Press, 2006). 57 Philip Pettit, ‘Kelsen on Justice: A Charitable Reading’, in Essays on Kelsen, supra note 1, 315. 58 Hans Kelsen, General Theory of Norms, supra note 52, 48, at 184. 59 It is true that certain passages of Kelsen, quoted in (III), are sensible to the counter-majority objection,

today defended mainly by Jeremy Waldron, Law and Disagreement, supra note 11. In this sense, I agree

with Lars Vinx that Kelsen’s view on judicial review is close to the procedural justifications of it, like

Ely’s one. Lars Vinx, Hans Kelsen’s Pure Theory of Law, supra note 11, 171 note 54, John Hart Ely,

Democracy and Distrust. A Theory of Judicial Review, (Cambridge, Mass.: Harvard University Press,

1980).


15

solution undermines the rule of law with the doctrine of finality and undermines

democracy with the subjectivist analysis of ethical judgments of value.

In Kelsen’s times, in Weimar, the view of the hierarchical legal system was best

defended by Adolf J. Merkl,60 and less relativistic and sceptical were the defences of

rule of law and democracy by, for instance, Hermann Heller61 or Franz L. Neumann.62

A final conjecture: perhaps in a milieu totally sceptical to matters of values, as

Kelsen’s one, legal theory looks for a refuge, an incontrovertible value like legal

certainty. Something similar occurred in economics: given that value judgments are

subjective, then we rescue only a social value, we value only the Pareto optimal social

state of affairs.63 The price is excessively high; such thin theories are not able to take

into account the complexity of human affairs. In fact, Hilary Putnam, in a powerful

criticism of reductionism in economics, suggested that a similar criticism could be

elaborated in legal theory.64 However, this issue is something that will have to wait for

another occasion.

60 See for instance Adolf J. Merkl, : Allgemeines Verwaltungsrecht, (Wien- Berlin: Julius Springer, 1927),

Prolegomena einer Theorie des rechtlichen Stufenbaues, in Gesellschaft, Staat und Recht. Festschrift

Hans Kelsen zum 50. Geburstage gewidmet, (Wien:Springer, 1931), 252-294. 61 See in English Hermann Heller, ‘Political Democracy and Social Homogeneity’ (German original,

1928), transl. by D. Dyzenhaus, in A. Jacobson, B. Schlink (eds.), Weimar: A Jurisprudence of Crisis,

(Berkeley: California University Press, 1990). A defence of the Heller’s view in David Dyzenhaus,

Legality and Legitimacy, supra note 32, ch. 4. A curiosity: Heller died in Madrid in 1933 (at merely 42

years of age), exiled from Hitler’s Germany and invited to join, as Professor, the Law Faculty at the

University of Madrid in the republican period. 62 Franz L. Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society, ed.

Matthias Ruete. (Leamington Spa: Berg, 1986). This is a version of his doctoral dissertation presented in

1936 at London School of Economics, supervised by Harold Laski. 63 See, for a convincing criticism of this reductionism in economics, Amartya Sen, On Ethics and

Economics, (Oxford: Blackwell, 1987). 64 Hillary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (Cambridge, Mass.:

Harvard University Press, 2002), 64. A first attempt at applying Putnam’s account to legal theory in José

Juan Moreso, ‘Teoría del Derecho y neutralidad valorativa’, Doxa: Cuadernos de filosofía del derecho,

31 (2008), 177-204.

Kelsen on Justifying Judicial Review

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