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    Kelsen’s Doctrine of Legality 

     Maarten Stremler LLM  

    Table of Contents

    1. Introduction ...................................................................................................................................... 1

    2. The Rule of Law .............................................................................................................................. 3

    2.1. The Pure Theory of Law .......................................................................................................... 3

    2.2. The Adequacy-Thesis ............................................................................................................... 4

    2.3. The Identity-Thesis .................................................................................................................. 63. The Legal Order ............................................................................................................................... 7

    3.1. Legal Meaning ......................................................................................................................... 7

    3.2. Legal Hierarchy ........................................................................................................................ 8

    4. Legality .......................................................................................................................................... 10

    4.1. Nullity .................................................................................................................................... 10

    4.2. Voidability .............................................................................................................................. 12

    5. Constitutional Legality................................................................................................................... 14

    5.1. The Constitution ..................................................................................................................... 14

    5.2. Constitutional Review ............................................................................................................ 16

    6. Conclusions .................................................................................................................................... 18

    1. Introduction

    In this paper I reconstruct Hans Kelsen’s doctrine of legality. By legality I mean here, loosely

    speaking, the requirement that public authority must be exercised in accordance with the law.

    Legality is usually regarded as a necessary condition for the legitimacy of public authority.

    Legality is a common principle in the national constitutional traditions of continental

    Europa.1 It is also a principle in European constitutional law.2 Although these different legal

    1 Cf. A. von Bogdandy, Gubernative Rechtsetzung. Eine Neubestimmung der Rechtssetzung und des

     Regierungssystems unter dem Grundgesetz in der Perspektive gemeineuropäischer Dogmatik , Tübingen:

    Mohr Siebeck 2000, p. 154-216.

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    orders all recognize the general requirement of legality, they differ greatly when it comes to

    what they recognize as the more specific requirements that ensue from legality. As a

    consequence, they also differ greatly in their implementation of legality.3 In order to develop

    a clear concept of legality, one could, on the basis of comparative research, look for a

    common denominator with respect to legality between these different legal orders.

    Kelsen employs an alternative method. His doctrine of legality is part of his more

    encompassing ‘pure theory of law’ ( Reine Rechtslehre).4 Kelsen’s method to develop a legal

    science is analogous to and inspired by Immanuel Kant’s method to develop a natural

    science.5 According to Kant, natural science starts with the development of an a priori

    conceptual framework. This is the ‘metaphysical’ (transcendental) part of natural science.

    Then, in the empirical part, this framework is applied to empirical matter.6 Likewise, Kelsen’s

    theory is meant as an a priori (‘pure’) conceptual framework that can be applied to positive

    legal orders, in order to scientifically understand them.

    The pure theory of law is usually regarded as a theory about the nature of law and,

    hence, classified as belonging to legal philosophy. In this paper, I do not engage with

     philosophical issues. Instead, I treat the pure theory of law as a normative constitutional

    theory. Kelsen’s theory, I will show, can be regarded as a theory of the ‘rule of law’ 

    ( Rechtsstaat ).7 In fact, Kelsen explicitly aimed at the development of such a theory.8 

    My reconstruction of Kelsen’s doctrine of legality is guided by two related questions:

    1) what does legality require? and 2) how can this effectively be realized? The first question

    2 Cf. A. von Bogdandy, ‘Founding Principles’, in: A. von Bogdandy & J. Bast (eds.), Principles of European

    Constitutional Law, Oxford: Hart 2009, p. 11-54.

    3 The most salient differences, of course, concern constitutional review. Cf. M. de Visser, Constitutional

     Review in Europe: A Comparative Analysis, Oxford: Hart 2013.

    4 See in particular H. Kelsen, Reine Rechtslehre (2nd revised and enlarged edition), Vienna: Österreichische

    Staatsdruckerei 1992 [1934]. The second edition of the book (1960) is a greatly expanded version of the firstedition. Nevertheless, most of the content of both editions is consistent with each other.

    5 Cf. H. Kelsen, Society and Nature: A Sociological Inquiry. London: Kegan Paul 1946.

    6 I. Kant, Metaphysische Anfangsgründe der Naturwissenschaft , Hamburg: Meiner 1997 [1786].

    7 Cf. L. Vinx, Hans Kelsen’  s Pure Theory of Law. Legality and Legitimacy, Oxford: Oxford University Press

    2007, passim.

    8 H. Kelsen, ‘Rechtsstaat und Staatsrecht’ [1913], in: H. Klecatsky, R. Marcic & H. Schambeck (eds.), Die

    Wiener Rechtstheoretische Schule. Ausgewählte Schriften von Hans Kelsen, Adolft Julius Merkl und Alfred

    Verdross, 2 Vols., Wien: Europa Verlag 1968, Vol. 1, p. 1532.

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    concerns the relation between public authority and law. Kelsen’s answer must specify the

    conditions under which the exercise of public authority meets the standard of legality. The

    second question concerns the actual realization of legality. Kelsen’s answer must indicate the

    legal guarantees for this. The assumption here is that legality cannot enforce its own

    realization.

    I will interpret Kelsen’s work in light of these questions and sketch his answers,

    including the underlying argumentation. I will not discuss the intellectual context in which

    Kelsen developed his ideas. Nor will I discuss the reception of his work. Kelsen provides a

    comprehensive account of constitutional democracy.9 I will only focus on the constitutional

     part of this account. As a consequence, my reconstruction will not entail a full justification of

     public authority. For Kelsen, legality is a necessary but not a sufficient condition for the

    legitimacy of public authority.

    The structure of this paper is as follows. In section 2, I analyze Kelsen’s conception of

    the rule of law, of which legality is an essential element. This conception is based on a

     particular understanding of the legal order. In section 3, I analyze Kelsen’s understanding of

    the legal order. In section 4, I turn to legality as such. In section 5, I discuss the most

    important guarantee of legality: constitutional review. Finally, in section 6, I draw my

    conclusions.

    2. The Rule of Law

    2.1. The Pure Theory of Law

    Kelsen developed his pure theory of law in reaction to two types of legal philosophy that

    were prevalent at the time and that claimed to be scientific (wissenschaftlich). Theories of the

    first type tried to understand the normativity of law in terms of natural or social facts.

    Theories of the second type determined the concept of law in terms of moral or political

    ideals, justice for instance. Kelsen found both types of legal philosophy seriously flawed.

    The problem with theories that try to understand the normativity of law in terms of

    natural or social facts is that they disregard the fundamental difference between ‘is’ ( sein) and

    9 For Kelsen’s (often neglected) theory of democracy, see in particular H. Kelsen, Vom Wesen und Wert der

     Demokratie (2nd revised and enlarged edition), Tübingen: Mohr 1929 [1920].

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    ‘ought’ (sollen).10 Legal norms are not statements about states of affairs. They are

     prescriptions for human conduct. Legal norms belong to the ontological domain of ‘ought’.

    This domain cannot be reduced to the ontological domain of ‘is’. The difference between

    these domains is fundamental in the sense that it does not allow for an explanation in terms of

    even more fundamental concepts, Kelsen claims.

    Theories that determine the concept of law in terms of a moral or political ideal may

    acknowledge the difference between ‘is’ and ‘ought’. They are problematic for another

    reason: they disregard the difference between ‘knowing’ (erkennen) and ‘willing’ (wollen).

    They turn legal science into ‘ideology’, as Kelsen puts it.11 These theories are not developed

    in order to know and understand legal orders, but in order to justify or criticize them. As such,

    they serve political interests. Legal science, however, has to be separated from legal

     politics.12 Legal science can only be scientific if it limits itself to describing the law.

    Thus, against theories of the first type, Kelsen claims that the object of legal science –  

    law –  is irreducibly normative; against theories of the second type, that legal science must be

     purely descriptive. This latter claim has made Kelsen the father of methodological positivism.

    The object of legal science is normative, but legal science itself is not; at least not in the sense

    that it would prescribe how the law ought to be.

    2.2. The Adequacy-Thesis

    Kelsen’s work shows him not only as a methodological positivist, though, but also as an

    ardent defender of the rule of law.13  Prima facie, this is a contradiction. How could one aspire

    to develop a value-neutral legal theory and at the same time endorse a particular

    constitutional ideal?

    Although Kelsen is not very clear on this point, I do not think Kelsen contradicts

    10 Kelsen, Reine Rechtslehre, p. 4-9.

    11 Kelsen, Reine Rechtslehre, p. 107-113.

    12 Kelsen, Reine Rechtslehre, p. 1.

    13 See in particular H. Kelsen, ‘Über Staatsunrecht. Zugleich ein Beitrag zur Frage der Deliktsfähigkeit

     juristischer Personen und zur Lehre vom fehlerhaften Staatsakt’ [1914] in Die Wiener Rechtstheoretische

    Schule, Vol. 1, p. 957-1057; H. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ [1929] in  Die

    Wiener Rechtstheoretische Schule, Vol. 2, p. 1813-1872 and H. Kelsen, ‘Wer soll der Hüter der Verfassung

    sein?’ [1931] in Die Wiener Rechtstheoretische Schule, Vol. 2, p. 1873-1912.

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    himself. I suggest that the relation between his ambition to develop a pure theory of law on

    the one hand, and his endorsement of the rule of law on the other, can best be made clear by

    what I call the ‘adequacy-thesis’. According to this thesis, the pure theory of law is the only

     possible theory that is adequate to the full realization of the rule of law.14 

    A precondition for understanding the adequacy-thesis is to understand the relation

     between the pure theory of law and its object. The object of legal science, in its pure part, is

    the a priori structure of law. This structure is ‘given’; it is part of ‘reality’. Legal science, by

    contrast, is not simply given. It has to be developed. By describing its object, the pure theory

    of law produces scientific knowledge. The most important principle that has to guide this

     process of knowledge-production is the principle of non-contradiction.15 The pure theory

    aims at a body of knowledge that consists of a unified system, free from contradictions. This

    system fully corresponds with its object. Kelsen’s assumption here is that the a priori 

    structure of law forms a coherent unity. As a consequence, there can be only one pure legal

    science.

    The rule of law, in contrast to legal science, is a practical ideal. It has to be

    implemented. According to this ideal, the state’s power should, as far as possible, be

    subjected to legal constraints that protect the subjects of the state against arbitrary exercises

    of the state’s power. ‘Rule of law, not rule of men’  –  that is the maxim.

    As I will elaborate below, for Kelsen a state that conforms to the rule of law is a state

    with a coherent legal order. Coherence here means that the norms that belong to the legal

    order as well as the acts that are based on this order do not conflict with each other. The full

    realization of the rule of law amounts to the realization of a legal order that is free from

    contradictions and that provides for legal instruments that guarantee this coherence in the

    long run.16 

    The rule of law is not a corollary of the pure theory of law. The pure theory itself is

    14 My account differs from the one offered by Vinx. Vinx interprets Kelsen’s pure theory –  contrary to Kelsen’s

    self-understanding –  as in instance of ‘political positivism’, i.e. as a theory with an inherent normative

    (‘political’) commitment. See Vinx, Hans Kelsen’s Pure Theory of Law, in particular p. 1-31 and 208-221.

    15 Cf. Kelsen, Reine Rechtslehre, p. 74-75. Kelsen here follows Kant. Cf. I. Kant, Kritik der reinen Vernunft ,

    Hamburg: Meiner 1998 [1781], p. 250-253.

    16 Cf. Kelsen, Reine Rechtslehre, p. 209-212. In order to fulfill its function to protect the state’s subjects, the

    rule of law has to be extended with democracy. As indicated in the introduction, I will not discuss Kelsen’s

    theory of democracy.

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    not committed to a normative aim. It merely describes the a priori structure of law. Endorsing

    the rule of law is based on a choice external to the pure theory.

    The pure theory and the rule of law, nevertheless, have a special relation. Both the

    development of the pure theory and the realization of the rule of law are guided by the

     principle of non-contradiction. In the same way as the pure theory is the only coherent theory

    of law, the rule of law is the only coherent practical implementation of law. This makes the

     pure theory ‘adequate’ to the rule of law. The pure theory perfectly aligns with the aim to

    subject public power to legal constraints. Other theories, by contrast, put ideological

    obstacles in the way of realizing this aim. A distorted picture of the a priori structure of the

    law, Kelsen believes, can only hamper the realization of rule of law.

    2.3. The Identity-Thesis

    The prime examples of legal theories that are not adequate to the rule of law, Kelsen claims,

    are dualist theories about the relation between law and state.17 Such theories hold that the

     political authority of the state is prior to the law. Essential for statehood is the capacity to

    exercise public authority independent of legal authorization.

    The most influential representative of dualist theories of law and state at the time was

    George Jellinek. According to Jellinek, the state exists as a factual power. The state’s

    commitment to the rule of law is the result of a voluntary obligation (Selbstverpflichtung ).18 

    This commitment cannot be unconditional, for that would jeopardize the state’s capacity to

    effectively guarantee order. If need be, the state must be able to act even if it is not legally

    authorized to do so and even if this would imply a violation of the law.

    Against Jellinek and other dualists, Kelsen claims that a state ‘above the law’ is

    inconceivable. When we say that the state acts, we are saying, in effect, that certain acts that

    are performed by human beings must be attributed to the state. Such an attribution, however,

     presupposes a criterion on the basis of which we can distinguish between acts of state and

    acts that are not acts of state. In Kelsen’s view, this criterion can only consist of legal norms.

    An act can only be an act of state if it is based on a norm that empowers certain individuals to

    17 Kelsen, Reine Rechtslehre, p. 289-320. Cf. Kelsen, ‘Über Staatsunrecht’ and H. Kelsen, Der soziologische

    und der juristische Staatsbegriff , Tübingen: Mohr 1928, p. 136-140.

    18 G. Jellinek, Allgemeine Staatslehre (2nd enlarged edition), Berlin: Häring 1905 [1900], p. 367-371.

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    act in the name of the state. And for individuals so empowered to successfully act in the name

    of the state, they have to fully comply with the authorizing norm. Actions that lack a legal

    authorization or violate the law, even if carried out by individuals that have the intention to

    act in the name of the state, cannot be attributed to the state. As a consequence, it is

    impossible to conceive of acts of state that are illegal.

    This conclusion is captured by Kelsen’s ‘identity-thesis’: state and law are identical.

    The state is a legal person. Law and state necessarily coincide.

    Dualist theories threaten the realization of the rule of law, Kelsen argues. By

    mistakenly understanding the state as a ‘real’ person, independent of the law, they allow for

    representatives of the state to suspend the law or to violate the law and still continue to act in

    their public capacity. Such representatives can treat the law as an instrument; they can use it

    as they see fit. If adhering to the law does not serve their interests, they can simply put the

    law aside. The identity-thesis, by contrast, enables us to denounce such acts as illegal and to

    describe them as acts that fail to qualify as exercises of public authority. We can only speak of

    an exercise of public authority if the exercise of the state’s power is subject to the law. The

    rule of law is the normative reformulation of this relation. The pure theory of law, therefore,

    is perfectly compatible with the rule of law.

    3. The Legal Order

    3.1. Legal Meaning

    The identity-thesis leaves us with a question: what counts as law? Representatives of the state

    who apparently violate the law could claim that their actions are in fact lawful. What

    determines whether they are right?

    To answer this question, Kelsen argues, it is necessary to distinguish between

    subjective and objective legal meaning.19 The subjective legal meaning of an act is the

    interpretation of this act by those who perform it. For example, when legislators raise their

    hands during a voting procedure, they will understand this act as the enactment of a statute.

    They interpret the act not merely as a physical movement, but as something that has legal

    consequences.

    19 Kelsen, Reine Rechtslehre, p. 2-9.

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    It is clear, however, that people may be mistaking about the legal meaning of their

    acts. The legislators may have failed to observe a procedural norm, for example. They

    thought they were enacting a statute, but in fact they were not. For this reason, the pure

    theory of law distinguishes between what people claim to be the legal meaning of their acts

    and objective legal meaning. Acts can only have objective legal meaning when they are

     performed in full compliance with the law.

    But how do acts gain objective legal meaning? According to Kelsen, an act gains

    objective legal meaning by a norm that confers this meaning on it. For example, there can be

    a norm that determines that voting in parliament on a text, subject to certain conditions, turns

    this text into a statute. When the legislators raise their hands, the text becomes a statute, i.e. a

    valid legal norm (or a set of legally valid norms). Due to the norm, the act of raising hands

    can be interpreted as having this legal consequence.20 

    A norm can only confer objective legal meaning on an act when the norm itself has

    objective legal meaning, i.e. when the norm is valid. A norm is valid when it is created in

    accordance with another, ‘higher’ norm that allows for its enactment. This chain of

    authorization, obviously, cannot continue indefinitely. At some point, there must be a norm

    that is valid but that has not been authorized by another norm. This norm is the basic norm

    (Grundnorm).21 The validity of the basic norm must be presupposed, Kelsen thinks. If the

     basic norm would not have intrinsic validity, its validity would depend on social facts. That,

    however, would make the validity of all other norms, in the end, also subjective.

    3.2. Legal Hierarchy

    Kelsen conceives of the law as a set of norms. Legal norms do not occur singly. They form an

    order. This order has a hierarchical structure (Stufenbau).22 Each norm within the legal order

    is located on a particular level. The apex of the legal pyramid is the basic norm. The basic

    norm individuates the legal order.23 

    20  Norms function as ‘schemata of interpretation’ ( Deutungsschemen), as Kelsen puts it.

    21 Kelsen, Reine Rechtslehre, p. 196-227.

    22 Kelsen, Reine Rechtslehre, p. 228-282.

    23 The question can be raised whether there can be multiple legal orders or only one legal order. Kelsen argues

    for the latter. See his work on the relation between national and international law. Cf. Kelsen, Reine

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    The relation between legal norms is formal, not substantial. Norms do not belong to

    the legal order because of their content, but because of the fact that their validity can be

    traced back to the validity of other, higher norms and eventually to the basic norm. Higher

    norms confer validity on lower norms. A lower norm is valid because it has been enacted in

    accordance with a higher norm. The ordering principle of the legal order is authorization.

    Kelsen conceptualizes norms as ‘frames’. Norms open up a discretionary space. For a

    lower norm to be valid, it must fall within the discretionary space of the higher norm. The

    higher norm must allow for its creation. If it does not, the lower norm is invalid. Norms

    higher in the hierarchy allow for more discretion, norms lower in the hierarchy for less. The

     basic norm is a blanket authorization.

    The discretionary character of norms implies that the legal order is dynamic. Lower

    norms fill out the discretionary space of higher norms. How they do this is contingent, from a

    legal point of view. There is no standard of legal correctness here. As a consequence, it is

    impossible to logically derive lower norms from higher norms. Lower norms are not the

    result of a cognitive act, but the product of an act of the will. They are created. As Kelsen

     puts it, the legal order consists of a chain of creation ( Erzeugungszusammenhang ).

    This picture of the law as a dynamic hierarchical order has important consequences

    for how we understand the relation between law and politics, Kelsen argues.24 Usually,

     political and legal decisions are sharply distinguished. Whereas ‘political’ decisions amount

    to the ‘creation’ of the law, legal decisions amount to the ‘application’ of the law. The pure

    theory of law undermines this sharp distinction.

    Political decisions, in their paradigmatic form, are taken by legislators; legal

    decisions, in their paradigmatic form, are taken by judges. Both legislators and judges must

    act within the limits of their authorization. Legislators are bound by constitutional law; judges

    are bound by the laws that regulate the case at hand. The difference between both types of

    law is their place within the legal hierarchy and, hence, the extent of discretion they allow for.

    Within the limits of discretion, legislators and judges are free. By taking decisions –  enacting

    general laws, in the case of legislators; judging in individual cases, in the case of judges –  

    legislators and judges concretize higher norms by creating new, more specific norms. The

     Rechtslehre, p. 321-345.

    24 Kelsen, Reine Rechtslehre, p. 239-260. Cf. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p.

    1813-1818.

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    difference between these norms is that the norms created by legislators are usually very

    general, allowing for much discretion, whereas norms created by judges are usually very

    specific, allowing for almost no discretion.25 From the perspective of the higher norms, what

    legislators and judges do amounts to the ‘creation’ of the law. From the perspective of the

    lower norms, by contrast, what they do amounts to the ‘application’ of the law. The difference

    is a difference of point of view. Legislators apply and create norms higher in the hierarchy;

     judges apply and create norms lower in the hierarchy. The difference between political and

    legal decisions, therefore, is only relative.

    4. Legality

    4.1. Nullity

    According to the identity-thesis, state and law are identical. Now that we have seen that the

    law consists of a hierarchical order of norms, we can try to understand how Kelsen translates

    the identity-thesis into a normative principle, the principle of legality. At this point, Kelsen

    turns from the pure theory of law to the practical ideal of the rule of law.

    For Kelsen, legality, in general, means lawfulness ( Rechtmäßigkeit ).26 The principle of

    legality demands lawfulness. In the context of the state, the principle has two objects. First,

    the principle demands the lawfulness of acts of state. Second, the principle demands the

    lawfulness of the law.

    The demand that acts of state must be lawful seems to be tautological. The identity-

    thesis implies that no act can constitute an act of state unless it conforms to the law. As a

    consequence, every act of state is necessarily lawful. For the demand to make sense, we have

    to take into account the subjective legal meaning of acts, i.e. the legal consequences

    individuals attribute to their acts. The principle of legality is directed against individuals who

    claim that they act in the name of the state, but in fact do not, because they lack authorization.

    The principle forbids such acts. Acts that are purportedly performed in the name of the state

     but do not have a legal basis are illegal. They are merely private acts, for which individuals

    25 Note that for Kelsen norms are not necessarily general rules. Cf. Kelsen, Reine Rechtslehre, p. 4 and ‘Wesen

    und Entwicklung der Staatsgerichtsbarkeit’, p. 1814-1815.

    26 Kelsen, ‘Über Staatsunrecht’, passim; Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, passim.

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    carry personal responsibility.

    Kelsen’s focus is not on the principle of legality as the demand that acts of state must

     be lawful, but on the principle of legality as the demand that the law must be lawful. This

    demand, of course, seems to be tautological as well. It is not, though, according to Kelsen.

    As we have seen, the law consists of a hierarchy of norms. The demand of the

    lawfulness of the law is the demand that norms lower in the hierarchy do not exceed the

    limits set by norms higher in the hierarchy. This reformulation, however, still seems to be

    tautological. Whether a norm is part of the legal order depends on its validity. A norm is valid

    if it is created in accordance with a higher norm. The validity of all norms can be traced back

    to the validity of the basic norm. As a consequence, the legal order can only contain valid

    norms. But valid norms necessarily meet the demand of legality.

    The demand that the law must be lawful is directed against the recognition of invalid

    norms as part of the legal order. Representatives of the state may claim that they have enacted

    a valid norm, but this claim itself cannot confer validity on the norm. Whether a norm is valid

    depends on the objective criterion whether the creation of this norm was allowed for by a

    higher norm. If the norm exceeds the limits set by norms higher in the hierarchy, the norm is

    invalid. The principle of legality forbids such norms. Invalid norms are illegal. They do not

     belong to the legal order. They are ‘null’.27 

    This leaves us with a question: who is to decide whether a norm is valid or null?

    Every claim about the validity or nullity of a norm is –  from a practical point of view –  

    subjective. Who is to decide whether such a claim is right, i.e. corresponds with the objective

    reality of the legal order?

    Kelsen argues that the authority to decide whether a norm is valid or null rests, by

    default, by the ultimate addressees of the norm, i.e. by the actual individuals that are expected

    to obey the norm.28 The authority to decide on the validity or nullity of a norm cannot be

    deferred to representatives of the state, for this presupposes that the addressees of the norm

    have already identified particular persons as representatives of the state. What determines

    whether an individual is a representative of the state, however, depends on the validity of the

    norm that purportedly authorizes this individual to act in the name of the state. Deference,

    therefore, only begs the question. The conclusion is that the subjects of the law are entitled to

    27 See in particular Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1827-1830.

    28 See in particular Kelsen, ‘Über Staatsunrecht’, p. 1004. 

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    decide for themselves whether or not they are faced with a case of nullity.

    4.2. Voidability

    The conclusion that the authority to decide on the validity of a norm rests by the addressees

    of that norm is, of course, radical. It implies that the mere claim by an individual that a norm

    is invalid frees him from the obligation to obey that norm.29 The individual may have good

    reasons to believe that the norm is invalid. But he may also claim that the norm is invalid

    simply because he does not like the norm and wants to be excused for illegal behavior. A

    consequence of this position, therefore, would be that the legal order cannot fulfill its

     practical function.30 

    For legality to be effectively realized, the principle of legality must be supplemented

     by ‘guarantees of legality’, Kelsen argues.31 Guarantees of legality are legal instruments

    designed to secure the actual realization of legality.

    The primary guarantee of legality, in Kelsen’s view, is ‘legality review’. For the law –  

    the objective legal order –  to be effectuated, it is necessary that individuals transfer their

    authority to decide on the validity of norms to courts.32 This transfer introduces the category

    of norms that are ‘voidable’. A voidable norm is a norm that can change from being valid to

     being invalid. The norm, by default, is valid. But its validity can be challenged before a court.

    The court scrutinizes whether the norm has been enacted in accordance with higher norms

    and if it finds that it has not, it declares the norm ‘void’, i.e. invalid. Voidable norms, then,

    29 It is important to realize here that the claim that one is faced with a case of nullity does not imply a denial of

    legal objectivity as such. On the contrary, the claim in fact presupposses legal objectivity, for without legal

    objectivity the concept of nullity would be meaningless. Furthermore, the claim does not entail that one has a

    right not to obey valid legal norms. The claim only concerns the question who has the authority to decide on

    the validity of norms.30 Cf. Kelsen, Reine Rechtslehre, p. 271-274.

    31 Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1826-1834.

    32 Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1836; Kelsen, ‘Wer soll der Hüter der

    Verfassung sein?’, p. 1873-1912. Individuals could, of course, deny transferring their authority. The solution

    to this problem, in Kelsen’s view, is factual, not legal. Whether individuals accept the authority of courts is

    not guided by ‘the principle of legitimacy’ (objective validity), but by ‘the principle of effectivity’. In an

    effective legal order, people, by and large, accept the authority of courts. Kelsen, Reine Rechtslehre, p. 212-

    215.

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    can only become invalid as a consequence of a legal act. Nullity, by contrast, does not require

    such an act.

    The transfer from individuals to courts of the authority to decide on the validity of

    norms can only be partial, Kelsen stresses.33 Individuals have the authority to decide that

    norms are invalid and, hence, null, unless positive law has explicitly determined that

     particular norms are voidable.

    According to Kelsen, legal theory cannot provide a general rule for where to draw the

    line between nullity and voidability. At one end of the spectrum, one could imagine a legal

    order that has no voidable norms at all. Here the claim that a norm is invalid automatically

    leads to the nullity of the norm. As we have seen, this would imply that the legal order loses

    its practical meaning. At the other end of the spectrum, one could image a legal order that

    maximizes the category of voidable norms. Determining that all norms are voidable,

    however, would be impractical as well. For that would imply that every norm that is

    subjectively interpreted as a valid norm must be regarded as valid and, hence, binding, unless

    the norm has been officially declared void.

    Positive law must stipulate the criteria that distinguish voidable norms from norms

    that are not voidable. Constitutions, for example, may determine that statutes must be

     published in the public journal. Published statutes are voidable. By default they are valid. A

    court could judge that a particular statute that has been published in the public journal is void,

     but until this judgment, it must be assumed that the statute is valid. Statutes that are not

     published in the public journal, by contrast, are null from the beginning.

    The introduction of norms that are voidable necessitates a new formulation of the

     principle of legality. In regard to voidable norms, the principle of legality forbids norms that

    are void. Such norms are initially objectively valid but then become objectively invalid.

    Translated into more practical terms, the principle of legality demands that representatives of

    the state minimize the number of cases in which courts declare voidable norms void.

    33 See in particular Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1826-34.

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    5. Constitutional Legality

    5.1. The Constitution

    In positive legal orders, the apex of the legal hierarchy is the constitution.34 Kelsen defines

    the constitution, in the substantive sense of the word, as the set of positive norms that regulate

    the creation of general norms.35 The substantive constitution determines the conditions for the

    validity of general norms. In modern states, this means that the substantive constitution

    regulates the legislative process. The substantive constitution can be written or unwritten.

    The substantive constitution has to be distinguished from the formal constitution. The

    constitution in the formal sense of the word is the document that is titled ‘constitution’.36 The

    formal constitution usually contains the most important norms of the substantive constitution.

     Norms that are placed in the formal constitution are usually harder to change than other

    norms in the legal order. For example, amending the formal constitution may require a two-

    thirds majority, whereas a simple majority may suffice for enacting ordinary laws.

    The constitutional legislature may decide to enshrine in the formal constitution not

    only norms concerning the substantive constitution, but also norms related to other important

     political issues. Thus, many formal constitutions contain a catalogue of basic rights and

    freedoms. Enshrining basic rights and freedoms in the formal constitution is meant to protect

    the minority against the majority. Since amending the formal constitution usually requires a

    qualified majority, revoking the basic rights and freedoms would need the consent of the

    minority, or at least a part of it.

    The formal constitution contains the highest norms of the legal order. The principle of

    constitutional legality forbids the enactment of unconstitutional norms. Formulated as a

    command, the principle demands that norms lower in the hierarchy conform to the norms of

    the formal constitution.37 

    34 I leave aside here the question of international law. The constitution is the practical counterpart of the basic

    norm. The basic norm has ‘legal-logical’ status, whereas the constitution is positively enacted. Cf. Kelsen,

     Reine Rechtslehre, p. 204-209 and p. 228.

    35 Kelsen, Reine Rechtslehre, p. 228. Cf. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1839.  

    36 Kelsen, Reine Rechtslehre,  p. 228-230. Cf. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p.

    1840-1841.

    37 Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1815-1816.

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    Conformity with the formal constitution takes two forms. Lowers norms must be

    enacted in accordance with the formal constitution. If they do not, they are unconstitutional

    for formal (procedural) reasons. But lower norms can also be unconstitutional because they

    are substantively flawed. This is the case, for example, if a lower norm violates a right or

    freedom enshrined in the formal constitution. However, the distinction between formal and

    substantive unconstitutionality is only relative, Kelsen stresses. In both cases, the lower norm

    is unconstitutional because it exceeds the limits set by the formal constitution.

    Kelsen distinguishes between direct and indirect violations of the formal constitution.

    If the unconstitutional norm is located one level below the formal constitution –  in case of

    ordinary laws, for example –  then the nor m is ‘directly’ unconstitutional. If the

    unconstitutional norm is located further down the hierarchy –  in case of an administrative act,

    for example –  then the norm is ‘indirectly’ unconstitutional. The principle of constitutional

    legality is primarily directed against norms that are directly unconstitutional.

    The principle of constitutional legality forbids that the legislature enacts laws that

    violate the formal constitution. Since it is not self-evident that the legislature complies with

    this prohibition, the principle of constitutional legality must be supplemented with guarantees

    of constitutional legality. In Kelsen’s view, an effective legal order provides for legal

    instruments that ensure constitutional legality.38 

    One possible guarantee of constitutional legality is ministerial responsibly. Cabinet

    ministers could be made accountable for conformity of legislation with the formal

    constitution. If a minister has signed a law that does not conform to the formal constitution,

    he should resign. It is even possible that he has to face criminal charges. The problem with

    such a guarantee, however, Kelsen points out, is that it leaves the unconstitutional law itself

    unaffected. As long as the law is not repealed, the law remains valid. What is needed,

    therefore, is an instrument to invalidate unconstitutional laws.

    38 Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1815-1816 and p. 1834-1845.

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    5.2. Constitutional Review

    In most positive legal orders, laws that have been enacted by the legislature are voidable.

    When the laws satisfy certain criteria, like being published in the public journal, the validity

    of such laws is presupposed. From an objective point of view, however, these laws could be

    unconstitutional and, hence, invalid. The principle of constitutional legality requires that

    unconstitutional laws are invalidated. The question is who should be authorized to decide on

    the constitutionality of laws.

    One option is to grant this authority to the legislature.39 In positive legal orders this

    option is usually realized by stipulating in the formal constitution that courts do not have the

    authority to review the constitutionality of laws. As a consequence, this authority rests by the

    legislature. Only the legislature can repeal legislation. Every law that has been enacted by the

    legislature is valid, unless the legislature has repealed the law. And as long as the legislature

    has not repealed the law, it has to be assumed that the law conforms with the formal

    constitution.

    Granting the legislature the authority to decide on the constitutionality of laws leaves

    the legislature with a choice: it can enact laws in accordance with the norms of the formal

    constitution, but it can also enact laws in other ways, not in accordance with the norms of the

    formal constitution. In the latter case, the resulting laws can nevertheless be valid, because

    the sole criterion for validity (and constitutionality) is the opinion of the legislator. Thus, the

    formal constitution would provide for a direct and an indirect way of enacting valid laws.

    Clearly, in this situation the formal constitution is no longer binding. The formal constitution

    aims at constraining the creation of laws, but if the same institution that enacts laws also

    decides on their constitutionality, this institution can do as it pleases.

    The situation is different if the formal constitution authorizes an institution other than

    the legislature to review the conformity of laws with the formal constitution. For example,

    this authority can be granted to all the courts of the legal order.40 In this case, the courts

    usually do not have the authority to declare laws void, i.e. invalid once and for all. They only

    have the authority not to apply a law which they deem unconstitutional in the case at hand.

    39 Kelsen, Reine Rechtslehre, p. 275-277; Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1861-

    1874.

    40 Kelsen, Reine Rechtslehre, p. 277-278.

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    The law remains valid for all other cases.

    It is also possible to confer on a particular court the authority to decide that a law is

    invalid in general, for all cases. Such a court –  a constitutional court  –  has the authority to

    review laws for their constitutionality and to strike down unconstitutional legislation.41 The

    most important subject of constitutional review is legislation, but the constitutional court

    must also have the authority to invalidate other norms that are not evidently null. For

    example, the legislature might take decisions that do not have the form of a statute, but that,

    according to the formal constitution, should have this form. If the constitutional court could

    not invalidate these decisions, the legislature could easily escape constitutional review.

    Kelsen is an ardent defender of constitutional review by a constitutional court. A

    constitutional court, in his view, is the best guarantee of constitutional legality and, hence, the

     best ‘guardian of the constitution’ ( Hüter der Verfassung ).42 He defends this view in

     particular against the view that constitutional courts are illegitimate because they take highly

     political decisions –  decisions that could only legitimately be taken by the democratic

    legislature.

    As we have seen, Kelsen rejects a sharp distinction between political and legal

    decisions. Both the legislature and the judiciary are bound by higher norms, which they

    ‘apply’. The difference between these norms is the extent of discretion they allow for.

    Political decisions ‘create’ law by filling out relatively much discretionary space, whereas

    legal decisions ‘create’ law by filling out relatively little discretionary space.

    The decisions of a constitutional court are legal decisions, but they are of a particular

    kind. The court only scrutinizes whether the enactment of a particular norm remained within

    the boundaries of the norms of the formal constitution. If the court decides that it did not, the

    court declares the norm invalid. Such a decision does not involve discretionary power, Kelsen

    claims. The court does not create new law. It only invalidates law. If the reviewed norm

    remained within the boundaries of higher norms, the norm remains valid –  even if the court

    thinks that the norm is not the best application of the higher, authorizing norm.43 

    41 Kelsen, Reine Rechtslehre, p. 278-280; Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1836-

    1840.

    42 See in particular Kelsen, ‘Wer soll der Hüter der Verfassung sein?’. 

    43 Kelsen’s reply to the objection that norms need interpretation, especially when they contain unspecific or

    vague terms, is that the constitutional legislature should be clear and specific. Terms like ‘justice’ should be

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    6. Conclusions

    In this paper I have reconstructed Kelsen’s doctrine of legality. Legality is an element of the

    rule of law. The rule of law is the ideal that the state’s power should, as much as possible, be

    subjected to legal constraints in order to protect the subjects of the state against arbitrary

    exercises of the state’s power. Kelsen claims that his pure theory of law is the only possible

    theory that is fully adequate to the rule of law. My reconstruction was guided by two

    questions: 1) what does legality require? and 2) how can this effectively be realized?

    The first question concerns the conditions under which the exercise of public

    authority meets the standard of legality. The principle of legality demands lawfulness. In the

    context of the state, the principle demands lawfulness of acts of state and lawfulness of the

    law. The requirement that acts of state must be lawful is the requirement that acts of state

    must conform to the law. According to Kelsen, state and law are identical. As a consequence,

    the state itself cannot act illegally. Kelsen conceives of the law as a hierarchy of norms.

     Norms are objectively valid if they are enacted in accordance with an objectively valid higher

    norm. In regard to acts of state, the principle of legality forbids acts that subjectively are acts

    of state but objectively are not. An act of state is objectively an act of state if it is authorized

     by an objectively valid legal norm. If it is merely a subjective act of state, the act is illegal.

    In regard to the law, the principle of legality forbids norms that subjectively are valid

     but objectively are not. Such norms are null. The authority to decide on the objective validity

    of a norm rests, by default, by the addressees of that norm. For a legal order to become

    effective, addressees must transfer this authority, at least partially, to courts. The relevant

    norms then become voidable. A voidable norm is a norm that is assumed to be objectively

    valid but whose objective validity can be challenged before court. The court can declare the

    norm void, i.e. objectively invalid. Representatives of the state should minimize the number

    of norms that are declared void.

    In positive legal orders, the norms that authorize the creation of general norms are

    usually enshrined in a formal constitution. The principle of constitutional legality forbids

    norms that violate the formal constitution. The principle is primarily meant to constrain the

    enactment of legislation. The legislature state should minimize the number of laws that are

    declared unconstitutional.

    avoided. Cf. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’, p. 1848-1853.

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    The second question concerns the actual realization of legality. The principle of

    legality needs to be supplemented by guarantees of legality. Tho most important guarantee of

    legality, according to Kelsen, involves the transformation of nullity into voidability. By

    default, addressees of a norm can invalidate that norm simply by claiming that the norm is

    invalid. The norm then becomes null. For the legal order to become effective, the authority to

    decide on the objective validity of norms must, at least to some extent, be transfered to

    courts. This involves the creation of voidable norms. A voidable norm is objectively valid,

    unless a court has declared the norm void. Thus, courts secure the legality of the legal order.

    Kelsen applies the same logic to constitutional legality. He claims that the only

    effective way to realize constitutional legality consists in the creation of a constitutional court

    that can strike down legislation which it considers unconstitutional. The fear that a

    constitutional court must take highly polical decisions is ungrounded, he argues, first of all

     because the distinction between political and legal decisions is only relative, and secondly

     because a constitutional court is only authorized to take ‘negative’ decisions: it can only void

    norms; it cannot create new norms.


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