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A critical analysis of Kelsen's hierarchy of norms thesis

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 A Critical Analysis of Kelsen’s Hierarchy of Norms
Thesis1
______
Marc Lamballais

May 2019

Abstract: in this paper, I examine Hans Kelsen’s “hierarchy of norms” thesis. I argue that although
that thesis is elegant and coherent, it faces powerful objections which should ultimately lead to its
rejection. Subsequently, I try to propose an alternative thesis which I call the “interpretive chains
thesis”.

Introduction:
In this paper, I would like to examine one of Hans Kelsen’s most important theses, often
referred to as the “hierarchy of norms” thesis.
This thesis, which Kelsen defends in his major work, the Pure Theory of Law, may be
summarized as follows: a legal norm exists if and only if it is valid pursuant to another legal
norm; by way of exception, one basic norm (Grundnorm) exists without the support of any
other norm and is the ultimate origin of legal validity.
The hierarchy of norms thesis is certainly a very elegant and coherent way to explain the
nature and structure of the legal order. However, I would like to show that it faces strong
objections and should therefore be rejected.
To this end, I will first present it more details (1). I will then criticize it (2). Finally, I will
try to defend an alternative thesis which I will refer to as the “interpretive chains thesis” (3).

The content of the hierarchy of norms thesis

The distinction between facts and norms

In the Pure Theory of Law a norm is defined as “the meaning of an act by which a certain
behavior is commanded, permitted or authorized2”. According to this definition, acts of will
and norms are two distinct objects even though they are, in some sense, related:

“The norm, as the specific meaning of an act directed towards the behavior of somenone else, is
to be carefully differentiated from the act of will whose meaning the norm is: the norm is an
ought, but the act of will is an is3”.

In Kelsen’s philosophy, the distinction between acts of will and norms is particularly important,
for Kelsen believes that (i) an “is” (Sein) can never cause an “ought” (Sollen) and (ii) the act of
will is an “is” while the norm is an “ought”. Consequently, an act of will alone cannot create a

1
Unpublished paper.
2
Hans Kelsen, Pure Theory of Law, p.5.
3
Ibid.
 2

norm. A norm exists if and only if an act of will has a normative meaning and such meaning
can only be given by a preexisting norm.
For instance, when the French Parliament enacts a new statute4, such decision is not
neutral in France: it has a normative meaning. It implies the existence of a new norm with which
French citizens must comply. But why does that decision have such meaning? According to
Kelsen’s pure theory of law, it is because it is conferred by other norms – in this case, norms of
the French Constitution. Without those norms, the decision of the Parliament would be
meaningless: it would be a neutral act, creating no new legal obligation for French citizens.

Normative chains and basic norm

Since no norm can validly exist without the support of a preexisting norm, norms are
organized in the form of chains. Each and every norm is valid in virtue of a prior norm which
is itself valid pursuant to another norm, and so on. This, of course, creates a difficult problem:
if all norms need a preexisting norm to be valid, then the origin of legal validity gets lost in a
regressus ad infinitum and becomes impossible to find. To solve this problem, Kelsen
introduces the concept of the basic norm (Grundnorm).
The basic norm is the ultimate source of legal normativity. Contrary to all the other norms,
its validity does not come from another norm but from a presupposition5. Lawyers try to justify
the norms’ validity but only up to a certain point. Beyond that point, although they cannot find
such justification they presuppose that the norms are valid and legally binding. In France, for
instance, lawyers deem every norm that can be logically related to the French Constitution
logically valid although they cannot legally justify the validity of the Constitution itself.
Therefore, Kelsen argues, they presuppose the existence of a legal norm that justifies such
validity, even though they cannot identify such norm. And it is this presupposed norm which
Kelsen calls the basic norm.

Objections to the hierarchy of norms thesis

So far, I have briefly presented the hierarchy of norms thesis as well as the main
arguments supporting it. I shall now try to determine whether it is a convincing way of
describing the nature and structure of legal orders. In that regard, I will examine two powerful
objections which, in my view, should lead to its rejection: first, the hierarchy of norms thesis is
inconsistent with empirical facts; second, it contradicts Kelsen’s theory of legal interpretation,
which is much more convincing that his hierarchy of norms thesis.

The hierarchy of norms thesis is inconsistent with empirical facts

My first objection can be presented very briefly. Kelsen claims that legal norms are valid
if and only if they are created pursuant to a prior norm. This implies that human beings
recognize the existence of legal norms if and only if such existence can be logically inferred
from a prior norm. But this seems very contestable.

4
Please note that I here voluntarily simplify the French legislative procedure.
5
See Kelsen, Pure Theory of Law, p.201 et seq.
 3

Let me illustrate this with a simple example. The French Judiciary Supreme Court (Cour
de cassation) has created many standards in the form of statements of principle (attendus de
principe). But why do we recognize those standards as having legal force? Is it really because
another legally valid norm confers them a normative meaning? What norm could that be? The
power and competence of the Court are governed by the French Judicial Organization Code,
which does not seem to include any statement of such a norm. Surely, the Court itself denies
that it really invents any new legal standard by formulating statements of principle. It claims
that it only applies preexisting statutes and, thus, that the new principles it states are not really
created but discovered; as if they already existed waiting for the Court to bring them to light.
However, I do not think that any lawyer seriously believes that this is a correct description of
the Court’s practice. And even if it were, one could still ask: what are the norms pursuant to
which those hidden standards themselves validly exist?

The hierarchy of norms thesis is inconsistent with Kelsen’s theory of interpretation

Furthermore, as Michel Troper showed6, the hierarchy of norms thesis contradicts

Kelsen’s views on legal interpretation. For Kelsen, a legal norm can always have several
possible meanings, which is why it must be interpreted by law-applying organs. Legal
interpretation then consists of choosing one of those possible meanings as the correct meaning
of the norm. From this, it follows that before its interpretation the correct meaning of a norm
does not exist, since it has not yet been chosen by the interpreter. In other words, legal
interpretation is an act of will and not an act of cognition7: it consists of ascribing the meaning
of the norm, and not of finding out such meaning.
But Michel Troper observes that, if, as Kelsen thinks, the norm is the meaning of an act
of will, then interpreting a norm would consist of choosing the meaning of a meaning which
seems absurd. Kelsen seems to have anticipated such criticism since, in an unfinished work
published after his death, the General Theory of Norms, he wrote:

“One may say that the norm is a meaning, the meaning of an act of will, and also of that the norm
has a meaning. The meaning of the norm is problematic where the linguistic statement expressing
the norm is unclear8”.

The expression “meaning of the norm” would thus refer to the meaning not of the norm itself
but of the linguistic statement expressing the norm. But this means that the object of legal
interpretation is in fact not the norm itself but the statement in which it is expressed:

“If it is the statement which is unclear, the function of interpretation is to determine the meaning
of the statement expressing the norm and not that of the norm, as Kelsen wrongly thinks9”.

Subsequently, the norm is not really the meaning of an act of will, as Kelsen contends, but the
meaning of a statement, as it is determined by the interpreting organ. However, this idea
radically conflicts with the hierarchy of norms thesis, since it implies that the origin of the

6
See Michel Troper, Pour une théorie juridique de l’État, pp. 85-94.
7
See Hans Kelsen, Pure Theory of Law, p.353 et seq.
8
Quoted by Michel Troper (Pour une théorie juridique de l’État, p.87); I translated.
9
Ibid., p.88; I translated.
 4

norms’ existence is not to be found in higher norms but in the law applying organs’ interpretive
power.
Therefore, to accept the hierarchy of norms thesis, one would have to reject the kelsenian
idea that legal interpretation is an act of will and argue that it is a mere act of cognition by which
the interpreter simply discovers the meaning of a preexisting act of will. But of course, this
would entail that law-applying organs have no role to play in the creation of legal norms. And,
if that were the case, then numerous phenomena – like diverging interpretation between judges
or case-law overturns – would become impossible to explain.
Consequently, the hierarchy of norms thesis should be rejected.

Alternative proposal: the interpretive chains thesis

In the previous section, I tried to show that the hierarchy of norms thesis faces powerful
objections that should lead to its rejection. I shall now try to propose a better theory for
explaining the structure of the legal order.

Authority as a foundation of normativity

If the origin of normativity cannot be found in the existence of preexisting norms, where
else could it be found? To answer this question, I shall begin by pointing to a fact which, I
believe, no one will contest: political communities have a natural tendency to produce
authorities which are recognized as such by nearly all their members. In other words, we seem
to collectively construct mental schemes or patterns that impose on almost every member of
the collectivity10.
Therefore, it seems reasonable to think that legal normativity is simply a particular form
of this more general phenomenon. Among the various collective mental schemes that impose
on us, some make us recognize the existence of certain organs, and think those organs have the
power to dictate rules that must be obeyed by everyone that we got used to call “law”.
I shall make two observations about such power. First, it is always limited. For instance,
in France, we recognize the authority of a court to fine a driver for illegal parking; but we would
certainly not recognize its authority to sentence him to life in prison or death penalty. Second,
recognized organs themselves often recognize the legal authority of other organs. For instance,
appeal courts recognize the authority of the Supreme Court. The Supreme Court recognizes the
authority of the Parliament and the Government, and so on. Hence legal authority is not always
recognized directly by the political community. In most cases, such recognition comes from
one or more intermediary organs, which are themselves either recognized by the political
community or by other organs, and so forth. Consequently, the distribution of legal authority
must be conceived as a complex network of relations of social recognition. And in it is the
position of each organ in this network that determines what legal statements or norms it can
create.

10
For an attempt to explain that phenomenon, see Frédéric Lordon, Imperium.
 5

Interpretation and legislation

The legal authority acquired by each organ through the social recognition network may
be of two kinds: it may be the authority to formulate a new legal statement or the authority to
interpret a preexisting statement for the purpose of applying it. That being said, most organs
have both authorities: they can interpret existing legal statements – thereby creating the norms
they state – in order to create new ones. For instance, in France, the Parliament must interpret
the Constitution to determine its powers and thus what laws it can enact; the courts must
interpret the laws to determine the possible content of their decision, etc.
Therefore, to understand the nature and structure of legal orders, one must understand the
precise nature of both legal interpretation and the creation of new legal statement, as well as
how those two activities are related.
In that regard, two possible theses may be considered. According to the first one, which
was defended, notably, by H.L.A. Hart, the power of the interpreter is a consequence of the
indetermination of human language:

“Whichever device, precedent or legislation is chosen for the communication of standards of

behaviors, these, however smoothly they work over the great mass of ordinary cases, will, at some
point where their application is in question, prove indeterminate; they will have what have been
termed an open texture11”.

In other words, for any existing legal statement, there will always be cases where its meaning
is clear (Hart gives the following example: “if anything is a vehicle a motor-car is one12”) and
other cases where it is not (“does ‘vehicle’ used here include bicycles, airplanes, roller
skates?13”). Where the law-applying organ is in the first situation, he can apply the statement
mechanically; and where it is in the second one, it must arbitrarily decide what it means.
The second position, usually defended by authors affiliated to the movement known as
“legal realism”, is more radical. Those authors do not accept the idea that legal statements have
a core-meaning and an open texture. They believe that law-applying organs only pretend to
apply preexisting laws. But, in reality, they are the ones who decide what they mean. Therefore,
legal realists think that the meaning of legal statements is always entirely created a posteriori
by the interpreter14.
But which of those two positions is the correct one? At first sight, the first thesis seems
more likely to be true: we have the intuition that, before the laws are applied, we are able to
understand their meaning, at least partly. We think, for example, that a statute according to
which “vehicles are forbidden in public parks” means that we do not have the right to drive a
motor-car in certain places which we could clearly identify. Hence, we believe that legal
statements need not be interpreted by legal organs to acquire a meaning, even if such meaning
is “imperfect” and does not cover all possible cases. However, upon closer examination this
view seems quite problematic. Particularly, it contradicts a well-established fact: law-applying

11
Herbert L.A. Hart, The concept of law, pp.127-128.
12
Ibid., p.126.
13
Ibid.
14
For a few famous examples, see e.g. John C. Gray, The Nature and Sources of the Law; Michel Troper, La
théorie du droit, le droit, l’État (especially pp. 69-84); Alf Ross, On Law and Justice (especially pp. 108-157);
Jerome Frank, Law and the modern mind; Karl N. Llewellyn, “A Realistic Jurisprudence: The Next Step”.
 6

organs sometimes give legal texts a meaning which is not their commonly accepted meaning.
Even if a statement seems clear, the relevant organ can always claim that one of its words has
a specific legal meaning which is different from its ordinary meaning, or invent a new principle
according to which the statement must be understood in a counter-intuitive way. Even in Hart’s
example, a Supreme court could probably interpret the word “vehicle” as including only
bicycles and planes but not cars. Such interpretation may seem quite bold, but courts have
sometimes proposed even bolder interpretations that were yet legally effective.
On the contrary, realism seems to better reflect what legal interpretation really is. Legal
interpretation is a matter of power much more than it is a matter of semantics. And nothing
forces law-applying organs to obey the rules of grammar or accept the common meaning of
words. It is thus, in my view, the more convincing view.
Therefore, we shall conclude that the legal meaning of a statement is always entirely
created a posteriori by the interpreter. The reason why we spontaneously tend to reject this idea
is because we often confuse the ordinary meaning of a statement with its legal meaning, that is,
the meaning with which it has legal authority.

Meaning and field of meanings: the limits of the interpretive power

I have argued that law-applying organs entirely create the meaning of the legal statements
they interpret. However, this does not entail that their creative power has no limit. Simply, those
limits are not determined by the linguistic properties of these interpreted statement, but rather
by the interpreter’s legal authority. I have already touched on this idea earlier when I noticed
that we would not recognize the authority of a Court to sentence a faulty driver to death penalty.
From this, it follows that the legal force of an interpretation is never independent of its content.
But to accept this, one need not presuppose that legal statements already have a meaning
before they are interpreted. The idea that legal authority is defined by the position of the
interpreter in a social recognition network is a sufficient explanation. Indeed, it entails that any
given interpretation is legally effective if and only if the interpreter is recognized as having
enough authority to provide such interpretation. And for any statement it can interpret, there
must be interpretations that meet this condition and interpretations that do not: interpretations
that will be legally effective and interpretations that will not.
Consequently, for any statement a law-applying organ can interpret there is what we could
call a “field of meanings”, that is, a set of possible meanings which the organ can be confer to
this statement15. If it chooses a meaning inside the field of meanings, then the interpretation
will have legal force. If it chooses a meaning outside of the field of meanings, then the
interpretation will not have any legal effect.
Of course, it is not possible to know in advance the precise boundaries of a field of
meanings. However, we can, to a certain extent, approximate those boundaries by intuition: for
each statement, we are able to identify decisions which would probably have legal effects and
decisions which would probably not. For example, a statute according to which “vehicles are
forbidden in public parks” could probably found a court decision to fine a person driving in the
gardens of the Versailles Palace but it could probably not found the decision of a judge to enact
general laws prohibiting painting on the French territory.

15
About that notion, see Marc Lamballais, “Souveraineté et interprétation dans la philosophie de Spinoza”.
 7

In that regard, it is worth noting that, in certain situations, the authority of the interpreter
is very limited, and the field of meanings is thus extremely narrow. For example, if a police
officer orders a subordinate to arrest a fleeing suspect, the set of possible meanings that the
subordinate may give to the order is probably not very wide; and all of those meanings probably
imply that he should try to catch the suspect one way or another within a relatively short period
of time.

Interpretive chains

Based on the views I have exposed above, I shall now try to formulate an alternative
theoretical model to describe the nature and structure of legal orders. This model, which I call
the “interpretive chains model”, rests on six core theses:

1) the authority globally recognized to the author of a normative statement is the origin
of its legal force;
2) legal norms are not legal statements: they are the legal meanings of such statements;
3) legal norms are determined, not by their authors, but by the organs recognized as
having the necessary authority to apply them;
4) the application of a statement may consist either of the production of a new statement
(for instance, when a judge applies a statute and issues a judicial decision) or a
material action (for instance, when a policeman applies a statute by arresting an
individual);
5) legal norms are what relate a preexisting legal statement and a new legal statement or
legal action;
6) therefore, legal statements and actions are organized in the form of interpretive
chains, that is, chains composed of various legal statement linked by interpretations
and at the very end of which there can be a material action.

To conclude, I shall make a few comments on those six theses. First, they imply a form
of normative relativism: because norms are created through legal interpretation, then, for each
legal text or statement, there must be as many norms as there are applications. In other words,
a norm only exists in relation to a certain application of the legal text expressing it. Outside of
that application, it does not exist. Second, members of the social body can never know in
advance the precise content of the norms which may be applied to them, since, by definition,
those norms do not exist before such application. They can only know the precise content of
past legal texts and decisions. However, this does not entail that they cannot, to a certain extent,
anticipate the probable content of those norms. By studying the past judicial and legal decisions
as well as the practice of legal organs, they can probably improve their intuitive knowledge of
the existing fields of meanings. Furthermore, they can look for regularities or patterns and try
to figure out the “rules of conduct” that legal organs implicitly follow when interpreting
statements. Nevertheless, their ability to predict the content of future norms will always be
limited because each application is specific and legal organs may always change their mind
about the proper way to understand certain legal statements.

Marc Lamballais
 8

References

Jerome Frank, Law and the modern mind, Stevens & Sons, London, 1949.

Riccardo Guastini, “Les juges créent-ils du droit ?”, Revus, 24, 2014: 99-113.

John C. Gray, The Nature and Sources of the Law, Peter Smith, Gloucester, 1972.

Hans Kelsen, Pure Theory of Law, The Lawbook Exchange, 2005.

Herbert L.A. Hart, The concept of law, Oxford University Press, Oxford, 2012.

Jean Hauser, “Le juge et la Loi”, Pouvoirs, 2005/3, 114: 139-153.

Marc Lamballais, “Souveraineté et interprétation dans la philosophie de Spinoza”, Implications

Philosophiques, 15/03/2019.

Karl N. Llewellyn, “A Realistic Jurisprudence: The Next Step” Columbia Law Review, 1930,
Vol 30, 4: 431-465.

Frédéric Lordon, Imperium, La Fabrique, Paris, 2015.

Michel Troper, Pour une théorie juridique de l’État, PUF, Paris, 1994.

Michel Troper, La théorie du droit, le droit, l’État, PUF, Paris, 2001.

Alf Ross, On Law and Justice, éd. The Lawbook Exchange Ltd., Clark, New Jersey, 2004.

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