Legal Normativism and Linguistic Analysis: Kelsen vs. Hart
Normativism and Kelsen’s Pure Theory of Law
Normativism posits that law is a normative system. Hans Kelsen’s Pure Theory of Law exemplifies this approach. Kelsen sought to define law scientifically, as an objective reality, independent of sociological and axiological considerations. He believed morality was subjective, and the study of law should be descriptive, not evaluative.
Kelsen’s theory highlights the following:
- Descriptive statements
- Independence from moral and sociological elements
- Law as distinct from behavior
Kelsen distinguished between causation (natural science) and imputation (norms). He argued that legal science describes norms, not causal relationships. Central to his theory is the concept of validity. A rule is valid if it belongs to a system. The validity criterion is normative, not empirical. A rule is valid if it conforms to another rule within the system.
The Basic Rule and the Constitution
Kelsen’s basic rule (Grundnorm) is a hypothetical fundamental standard that underpins the validity of the entire legal system. It is not derived from any higher authority but is presupposed. The Constitution’s validity rests on this basic rule.
Kelsen’s concept of validity encompasses:
- Existence of the rule
- Mandatory nature of the rule
The basic rule is a working hypothesis, not a categorical acceptance of legal values. It is necessary to understand the legal system.
Criticisms of Kelsen
Critics argue that Kelsen’s descriptive approach falls into a contradiction. By describing a normative system, he implicitly acknowledges its existence and thus its normative force.
Hart’s Linguistic Philosophy of Law
Hart, through linguistic analysis of legal language, offered a different perspective. He criticized Austin’s theory of law as sovereign commands backed by force. Austin equated legal obligation with the probability of punishment. Hart argued that this view overlooks the concept of a rule, which has two elements:
- External element: Regular behavior of individuals
- Internal element: Acceptance of the behavior as a guide and basis for criticism
Hart believed that legal statements are made from an internal perspective, signifying acceptance of the rules. He criticized legal realism for neglecting the role of rules in judicial decisions.
Primary and Secondary Rules
Hart distinguished between primary rules (rules of conduct) and secondary rules (rules about rules). Secondary rules address issues arising from primary rules, such as:
- Rules of change (empowering bodies to modify rules)
- Rules of adjudication (empowering bodies to resolve disputes)
- Rules of recognition (establishing criteria for valid rules)
Hart’s rule of recognition, unlike Kelsen’s basic rule, is a matter of practice, observable in the behavior of officials. It is a factual matter that allows for internal statements about the law.