Joseph Raz on Kelsen's Basic Norm

Abstract

Throughout his writings Kelsen ignores, rejects, or misrepresents the most fundamental ideas of Kantian critical idealism and uses Kantian language imprecisely. Consequently, to start an examination of Kelsen's basic norm, as Raz does, with references to Kelsen's use of a Kantian “conceptual framework” or “intellectual tools” does not clarify the issue. Raz sees a double function in Kelsen's basic norm i.e., its function in explaining the identity and unity of a legal order and its functions in establishing the normativity thereof. I contend that the basic norm performs a single function which bears on the identity and unity of an order; but that it altogether fails to establish “normativity” as understood by Raz. Kelsen's account of legal normativity, I contend, is purely technical-juristic; there is no “justified normativity” in Kelsen as Raz claims. Other aspects of Kelsen's theory examined by Raz and considered here are: (1) the possibility of a refusal to pre-suppose the basic norm; (2) the need, alleged by Kelsen at one stage of his work, to see an order as “a meaningful whole”; (3) the inadmissibility, likewise alleged by him at one stage, of conflicting norms.