Relativism and Reduction

Common wisdom has it that Kelsen’s argument for the presupposition of the basic norm takes the form of a Kantian transcendental argument. The structure is as follows:
[list="margin-top: 0.5em; color: rgb(26, 26, 26); font-family: serif; font-size: 16.5px; line-height: 21px; background-color: rgb(255, 255, 255);"]
[*]P is possible only if Q

[*]P is possible (or, possibly P)

[*]Therefore, Q.

[/list]
In Kelsen’s argument, P stands for the fact that legal norms are “ought” statements , and Q is the presupposition of the basic norm. In other words, the necessary presupposition of the basic norm is derived from the possibility conditions for ascribing legal significance to actions and events. In order to interpret an action as one of creating or modifying the law, it is necessary to show that the relevant legal significance of the act/event is conferred on it by some other legal norm. At some point, as we have noted, we necessarily run out of legal norms that confer the relevant validity on law creating acts, and at that point the legal validity has to be presupposed. The content of this presupposition is the basic norm.
It would be a mistake, however, to look for an explanation of Kelsen’s argument in the logic of Kant’s transcendental argument. (Kelsen himself seems to have changed his views about this over the years; he may have started with a kind of neo-Kantian perspective one can discern in PT1, and gradually shifted to a Humean version of his main argument, which is quite evident in GT. However, this is a very controversial issue; for a different view, see Paulson 2013 and Green 2016.) Kant employed a transcendental argument to establish the necessary presuppositions of some categories and modes of perception that are essential for rational cognition, or so he thought. They form deep, universal, and necessary features of human cognition. Suffice it to recall that it was Hume’s skepticism about knowledge that Kant strove to answer by his transcendental argument. Kelsen, however, remains much closer to Hume’s skeptical views than to Kant’s rationalism. In particular, Kelsen was very skeptical of any objective grounding of morality, Kant’s moral theory included. Kelsen’s view of morality was relativist all the way down. (More on this, below). Second, and not unrelated, as we shall see, Kelsen has explicitly rejected the idea that the basic norm (in law, or of any other normative domain) is something like a necessary feature or category of human cognition. The presupposition of a basic norm is optional. One does not have to accept the normativity of law; anarchism, as a rejection of law’s normative validity is certainly an option, Kelsen maintained. The basic norm is presupposed only by those who accept the “ought”, that is, the normative validity, of the law. But one is not rationally compelled to have this attitude:

اقتباس :: The Pure Theory describes the positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed…. The Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional—namely conditioned by the presupposed basic norm. (PT2, 217–218)

A comparison to religion, that Kelsen himself offered, might be helpful here. The normative structure of religion is very similar to that of law. It has the same logic: religious beliefs about what one ought to do ultimately derive from one’s beliefs about God’s commands. God’s commands, however, would only have normative validity for those who presuppose the basic norm of their respective religion, namely, that one ought to obey God’s commands. Thus the normativity of religion, like that of the law, rests on the presupposition of its basic norm. But in both cases, as, in fact, with any other normative system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions. Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason. Similarly, the normativity of law, presupposed by its basic norm, is optional: “An anarchist, for instance, who denied the validity of the hypothetical basic norm of positive law…. will view its positive regulation of human relationships… as mere power relations” (GT, 413).
Relativism, however, comes with a price. Consider this question: What is the content of the basic norm that one needs to presuppose in order to render positive law intelligible as a normative legal order? The simple answer is that what one presupposes here is precisely the normative validity of positive law, namely, the law that is actually practiced by a certain population. The validity of the basic norm, as we noted briefly earlier, is conditional on its “efficacy”. The content of the basic norm of any given legal system is determined by the actual practices that prevail in the relevant community. As Kelsen himself repeatedly argued, a successful revolution brings about a radical change in the content of the basic norm. Suppose, for example, that in a given legal system the basic norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d’etat takes place and a republican government is successfully installed. At this point, Kelsen admits, ‘one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government’ (PT1, 59).

Has Kelsen just violated his own adherence to Hume’s injunction against deriving “ought” from an “is” here? One gets the clear impression that Kelsen was aware of a serious difficulty in his position. In both editions of the Pure Theory of Law, Kelsen toys with the idea that perhaps changes in the basic norms of municipal legal systems legally derive from the basic norm of public international law. It is a basic principle of international law that state sovereignty is determined by actual control over a territory/population (PT1 61–62, though in PT2, 214–215, the idea is presented with greater hesitation; notably, some commentators argue that Kelsen took the idea of a universal legal order much more seriously than suggested here—see Green 2016). But this led Kelsen to the rather uncomfortable conclusion that there is only one basic norm in the entire world, namely, the basic norm of public international law. Be this as it may, the main worry lies elsewhere. The worry stems from the fact that it is very difficult, if not impossible, to maintain both a profound relativist and an anti-reductionist position with respect to a given normative domain. If you hold the view that the validity of a type of norms is entirely relative to a certain vantage point—in other words, if what is involved here is only the actual conduct, beliefs/presuppositions and attitudes of people—it becomes very difficult to detach the explanation of that normative validity from the facts that constitute the relevant point of view (namely, the facts about people’s actions, beliefs, attitudes, etc). This is basically what was meant earlier by the comment that Kelsen had no option but to admit that the validity of the basic norm is conditional on its efficacy. The normative relativism which is inherent in Kelsen’s conception forces him to ground the content of the basic norm in the social facts that constitute its content, namely, the facts about actions, beliefs, and attitudes actually entertained by the population in question. And this makes it very questionable that reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to provide a reductive explanation of the concept of legal validity in terms of some set of social facts, the facts that constitute the content of any given basic norm. (Which is precisely the kind of reduction H.L.A. Hart later offered in his account of the Rules of Recognition as social rules [see Hart 1961, at p. 105, where Hart alludes to the difference between his conception of the rules of recognition and Kelsen’s idea of the basic norm.])
Kelsen’s problem here is not due to the fact that he was a relativist with respect to every normative system, like morality, religion etc.; it is not the scope of his relativism that is relevant to the question of reduction. The problem stems from the fact that Kelsen was quite right about the law. Legal validity is essentially relative to the social facts that constitute the content of the basic norm in each and every legal order. Notice that legal validity is always relative to a time and place. A law enacted by the California legislature only applies within the boundaries of the state of California, and it applies during a certain period of time, after its enactment and until a time when it is modified or repealed. And we can see why: because legal validity is determined by the content of the basic norm that is actually followed in a given society. The laws in UK, for example, are different from those in the US, because people (mostly judges and other officials) actually follow different rules, or basic norms, in Kelsen’s terminology, about what counts as law in their respective jurisdictions. Once Kelsen admits, as he does, that the content of a basic norm is fully determined by practice, it becomes very difficult to understand how the explication of legal validity he offers is non-reductive.

» By Branch / Doctrine > Metaphysics > Relativism
» Linguistic Relativism (Sapir-Whorf Hypothesis) vs. Universal Grammar

Relativism and Reduction

Relativism and Reduction :: تعاليق

Relativism and Reduction

مواضيع مماثلة

مواضيع مماثلة