GENERAL THEORY OF NORMS

General Theory of Norms

HANS KELSEN
Translated by
Michael Hartney

CLARENDON PRESS - OXFORD

1991
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Britisb Library Cataloguing in Publication Data

Kelsen, Hans 1881—1973
General tbeory ofnorms.
I . Law. Tbeories
I. Title II. [Allgemeine Tbeorie der Normen. Englisb]
340.]
ISBN 0—19—825217—X

Library of Congress Cataloging in Publication Data

Kelsen, Hans, 1881—1973.
[Allgemeine Tbeorie der Normen. Englisb]
General tbeory ofnorms/Hans Kelsen; translated by Micbael Hartney.
Includes bibliograpbical references and index.
I . Law—Pbilosopby. 2.Law—Interpretation and construction.
3. Law and etbics. 4.jurisprudence. I. Title.
K230. K44A44I3 I991 340’. I—dc20
ISBN 0—19—825217—X

Typeset by Pentacor PLC, Higb Wycombe, Bucks

Printed in Great Britain by
Biddles Ltd
Guildford G King’s Lynn
 Contents
Introduction by Mic/mel Hartney ix

Translator’s Note liv

Foreword to the Original German Edition lviii

. Norms

. Norms and Means — End Relations: Ought and Must —

Teleological (Causal) and Normative Necessity — Norms and
Ends

. Kant’s Hypothetical Imperatives — Imperatives of ‘Skill’ —‘

Hypothetical and Categorical Imperatives 13

. No Logical Relation between Willing the End and Willing the

Means 16

. The General Norms of Positive Morality and Positive Law are

always Hypothetical 19

. Natural Laws and Social (Moral and Legal) Laws 22

. Causality and Imputation 24

. Norm-positing Acts: Content and Description — Norms:

Validity and Content 26

. Analysis of the Act of Will, of its Meaning and of its

Expression 31

10. Acts of Commanding, Commands, and Observance of

Commands 37

11. Recognition and Observance of Norms 42

12. The Validity of a Norm and its Observance or Violation 46

13. The Objectivity of the Validity of General Norms and of

Individual Norms 50
vi Contents

14. The Immediate and Mediate Addressees of General Norms of

Law and of Morality 52

15. Primary and Secondary Legal Norms — Subjective and

Objective Observance and Violation of Norms 56

16. The Modes of Is and Ought and the Modally Indifferent

Substrate 58

17. The Denial of the Duality of Is and Ought 63

18. Is and Ought in Kant’s Philosophy 79

19. The Principle of Autonomy — Conscience as Moral Authority 83

20. Is and Ought in Hume’s Philosophy 86

21. Poincaré’s Conception of the Relation between Science and

Morality 87

22. The Object of Norms: Human Behaviour 89

23. The Human Behaviour Included in a Norm: External or

Internal, ACtion or Omission, but always Social Behaviour 92

24. The Condition and Effect of Human Behaviour as the Content

of Norms '94
25. The Functions of Norms: Commanding, Permitting,
Empowering, Derogating 96

26. Empowering: Conferring the Power to Posit and Apply

Norms \ 102

27. Derogation: The Repeal of the Validity of a Norm by another

Norm 106

28. Legal Norms and Legal Principles: Esser’s Transformation

Theory 115

29. Conflicts of Norms 123

30. Law as a Standard of Value and Law as ‘Teaching’ — The

Significance of the Judge’s Finding of Fact 128
 Contents vii

31. Positive and Negative Regulation of Human Behaviour by

Law — The Closure of the Legal Order: Gaps in the
Law 131

32. Rights, Duties, and Sanctions 133

33. The Concept of Entitlement: the Various Significations of this

Word — Rights 136

34. Effectiveness, Validity, Positivity 138

35. Primary and Secondary Norms — The Difference between

Law and Morality 142

36. The Spatio-temporal Validity of Norms: Territorial and

Temporal Spheres of Validity 144
37. The Personal and Material Spheres of Validity 147

38. The Expression of the Norm-positing Act — Statements about

Norms 149

39. Norms Which are not the Meaning of Acts of Will? Mally’s
Theory 156

40. The Norms of Morality are not Commands? Manfred Moritz’s

Theory: ‘Genuine’ and ‘Inauthentic’ Commands and
Compliance 158

41. Norm and Statement as Different Significations of a Sentence 163

42. Thinking and Willing: Their Inter-relationship 166

43. Neither the Statement nor the Norm ‘Wants’ Anything 168

44. The Truth of a Statement and the Validity of a Norm 170

45. The Being-True of a Statement and the Being-Good of

Behaviour 175

46. The Verifiability of the Truth of a Statement — The Non-

verifiability of the Validity of a Norm 180

47. The Question ‘What Ought I to Do?’ 182

viii Contents

48. Statements about the Validity of a Norm and Statements about

FaCtual Behaviour which Agrees With or Contradicts the
Norm 184

49. Statements about a Norm and Quoting a Norm 187

50. The Problem of the Applicability of Logical Principles to

Norms 189

51. Jargensen’s Theory of the ‘Indicative Factor’ Immanent in an

Imperative ‘194

52. Husserl’s Theory of the ‘Theoretical Content’ of a Norm 199

53. Sigwart’s Theory of the Assertion Contained in an Imperative 202

54. Dubislav’s Theory of the ‘Recasting’ of Requirement-

sentences into Assertion-sentences 203

55. Hofstadter and McKinsey’s Theory of the Analogy between

the Satisfaction of an Imperative and the Truth of a Sentence;
Alf Ross’s Theory of the Parallel between the Observance-
value of an Imperative and the Truth-value of a Statement 206

56. Gerhard Frey’s Theory 208

57. The Applicability of the Principle of Contradiction to Norms 211

58. The Application of the Rule of Inference to Norms 226

59. Logical Problems about Grounding the Validity of Norms 252

60. The Logical Structure of a Hypothetical Norm — The

Relation of Condition and Consequence 266

61. Is There a Specifically ‘Juristic’ Logic? 268

Endnotes 272

References 430

Appendix: Bibliography ofKelsen’s Publications in English 440

Index ofAntlyors 455
Index ofSnlajects 459
 Introduction: The Final Form of
The Pare Theory ofLaw
by Michael Hartney

When I-Ians Kelsen published the ‘new, completely revised and

expanded’ edition of Reine Reclytsleljre in 1960 at the age of 78, the
scholarly world might have expected it to be his swan song. But it was
not to be the case. Kelsen kept writing and publishing throughout the
1960s. Some of these articles were replies to criticisms of his views1 and
others were restatements and summaries of the Pure Theory of Law.2
But more importantly, at the time of the publication of the second
edition of Reine Reclatslelyre, he had recently begun a correspondence on
norms and logic with Ulrich Klug, the author ofjnristisclje Logi/e.3 The
results of Kelsen’s thoughts on the logic of norms soon began to appear
as articles during the 1960s. In ‘Derogation’ and ‘Recht und Logik’
(English translation: ‘Law and Logic’),4 he gave up the position he had
long held concerning the applicability of logic to norms. This work on
normative logic led him to expand his Pure Theory of Law into a ‘general
theory of norms’. When he died in 1973 at the age of 91, he left a huge
manuscript containing the results of his work during the preceding
decade. This was published in 1979 as Allgemeine Theorie der Normen.5
And it is this work which now appears in English translation.
There is a tendency to think of Kelsen’s Pure Theory of Law as an
unchanging doctrine. But when we recall that his scholarly career lasted
close to seventy years,6 and that almost forty years elapsed between the
first complete exposition of the Pure Theory of Law (1934) and Kelsen’s
death, it appears highly unlikely that the Pure Theory should have
remained'static. While there are typically Kelsenian doctrines which
remained unchanged for half a century, recent study has shown that on
1 The only one of these in English is ‘Professor Stone and the Pure Theory of Law’ (1965) 17
Stanford Law Review 1128—57.
2 e.g. in English, ‘What is the Pure Theory of Law?’ (1960) 34 Tulane Law Review 269—76,
and ‘On the Pure Theory of Law’ (1966) 1 Israel Law Review 1—7.
3 This correspondence has been published as Rec/atsnormen and Logisc/ae Analyse: Ein
Briefwec/asel, 1959—1965 (Vienna: Deuticke, 1981).
4 Both of these articles are included in the 1973 collection of Kelsen papers, Essays in Legal
and Moral Philosophy (Dordrecht and Boston: Reidel); henceforth ‘ELMP’.
5 (Vienna: Manz); henceforth ‘ATN’.
6 His first work was published in 1905. For details of his life and career, see Rudolf Métall,
Hans Kelsen: Leben and Werk (Vienna: Deuticke, 1969).
X Introduction

many points Kelsen’s views did change, and sometimes more than once.7
The failure of many observers to appreciate the extent of these changes is
due to a number of factors. First of all, there is the sheer volume of
Kelsen’s publications: in Walter’s definitive bibliography of Kelsen’s
works there are 387 titles, 96 of which are on legal theory.8 Secondly,
there is the fact that Kelsen was not always prompt to admit that he
changed his mind, and so some of his shifts of position are somewhat
surreptitious. A notorious case is that of the passages in Reine
Rechtslehre (1960) which were altered in the English translation (Pure
Theory of Law, 1967) because Kelsen had changed his views in the
intervening years.9 And finally, as far as the English-speaking world is
concerned, there is the fact that not all of Kelsen’s works are available in
T'.'__ -1' -L 10

While the first elements of the Pure Theory of Law date from before
the First World War,11 its classical formulation is to be found in the
Reine Rechtslehre of 1934.12 As he came into contact with new ideas and
discovered difficulties in his own theory, at intervals of ten or fifteen
years he would feel the need to ‘rewrite’ RR1: hence the General Theory
of Law and State of 194513 and the second edition of Reine Rechtslehre
7 For instance, Stanley Paulson claims that on the question of conflicts between legal norms,
four phases can be distinguished in Kelsen’s career, during which he moved back and forth
between two views: ‘On the Status of the [ex posterior Derogating Rule’, in Richard Tur and
William Twining, eds., Essays on Kelsen (Oxford: Clarendon, 1986) 229—47.
8 Robert Walter, Hans Kelsen: Ein Lehen im Dienste der Wissenschaft (Vienna: Manz, 1985)
27—107. The other areas are political theory, social theory, theory of justice, constitutional law,
and international law.
9 Some of these departures from the 1960 text are indicated in footnotes (e.g. p. 74 of the
translation), but a number are not. For instance, on p. 18 of the translation, before the sentence
beginning ‘For example . . . ’, there is missing a whole sentence which should read: ‘One can
consider either norm as valid, but not both simultaneously.’ By 1967, Kelsen had given up his
earlier belief that two conflicting norms could not be simultaneously valid. The omission of this
sentence was pointed out by Hart (‘Kelsen’s Doctrine of the Unity of Law’, in H. E. Kiefer and
M. K. Munitz, eds., Ethics and Socialjustice (Albany, 1970) 171, n. 3; reprinted in Hart, Essays
in jurisprudence and Philosophy (Oxford: Clarendon, 1983) 309 n. 3). Another example: the
end of the last paragraph on p. 203 and the end of the first paragraph on p. 204 differ from the
original text in that all references to a ‘thought norm’ have been removed.
1 A complete list of Kelsen’s publications in English will be found in the Appendix to the
present work: pp. 440—454.
11 Some of Kelsen’s characteristic ideas appear already in his dissertation to qualify as a
University lecturer, the Hauptprohlerne der Staatsrechtslehre (Tiibigen: J.C.B. Mohr (Paul
Siebeck), 1910). The term ‘Pure Theory of Law’ appears for the first time in the subtitle of a
book he published in 1920: Das Prohlern der Souvera'nita't und die Theorie des Volkerrechtes:
Beitrag zu einer reinen Rechtslehre (Tubingen: ].C.B. Mohr (Paul Siebeck), 1920) ‘The Problem
of Sovereignty and the Theory of International Law: Contribution to a Pure Theory of Law’.
’2 (Leipzig and Vienna: Deuticke); henceforth ‘RRI’. A considerable portion of this
relatively short work was translated into English by Charles H. Wilson and published in (1934)
50 Law Quarterly Review, 474—98 and (1935) 51 Law Quarterly Review 517—35 under the title
‘The Pure Theory of Law: Its Method and Fundamental Concepts’. A complete translation (by
Bonnie Litchewski Paulson and Stanley L. Paulson): Introduction to the Prohlerns of Legal
Theory: A Translation of the First Edition of the Reine Rechtslehre (Oxford: OUP; is
forthcoming).
1’ (Cambridge, Mass.: Harvard Univ. Press); henceforth ‘GTLS’.
 Introduction xi

in 1960.14 Both GTLS and RRZ are clearly ‘rewritings’ of RR1, since the
order in which the topics are treated is substantially the same in each
case: law distinguished from nature, law distinguished from morality,
the basic concepts of law (duty, right, etc.), the Basic Norm and the
hierarchical structure of the legal system, international law.
Unlike GTLS and RRZ, ATN is not a ‘rewriting’ as such of RR1: it is
meant to be a general theory about norms and not a theory specifically
about law, and consequently certain aspects of the Pure Theory of Law
are not discussed. Nevertheless, as will be explained later, it is much less
a general theory of norms than an expansion of the Pure Theory of Law
in certain directions, and so deserves to be counted among Kelsen’s
major works in legal theory. Indeed, we can say that it represents the
final version of the Pure Theory of Law, the last link in that series of
books expounding the Pure Theory which began in 1934. Since its
publication in 1979, we can now study the evolution of the Pure Theory
from its classical statement in RRl to its final version nearly forty years
later. And with the publication of the present translation, almost
simultaneously with the publication of the new Paulson translation of
RRl, Kelsen’s four major expositions of the Pure Theory of Law will
now be available to the English-speaking reader.

1. An Overview of Allgemeine Theorie der Normen

ATN is one of Kelsen’s longest works. It is a remarkable feat for a man in

his late eighties and early nineties to write a book of 240,000 words
(twice the length of RRZ). And the book was presumably meant to be
even longer, since Kelsen died before completing it.15 There is a certain
unevenness in the length and content of the chapters. Some of them are
very short (ch. 55: 300 words) and others fairly long (ch. 58: 13,000
words). A few chapters (e. g. 1 and 8) are summaries of Kelsen’s theory
(or of some part of it), and could be published separately. The work
seems at times to be a collection of separate pieces. And this is sometimes
literally the case: a number of articles Kelsen published in the 1960s were
simply incorporated 1nto ATN, usually with revisions. The extent of the
incorporation of each of these articles will be indicated later.
The style of the book 1s similar to that of his other works on the Pure
Theory of Law. The language is not obscure, but there is a certain
amount of repetition, more so even than in the earlier works. (Some of
this may be due to the fact that he died before being able to revise the

14 (Vienna: Deuticke); henceforth ‘RRZ’. English translation by Max Knight: Pure Theory of
Law (Berkeley and Los Angeles: University of California Press, 1967), henceforth ‘PTLZ’.
15 For the story of the publication of the manuscript Kelsen left at his death, see the
Foreword to the German edition, below: pp. lviii—lx.
xii Introduction

manuscript.) For instance, the effect of res jadicata is discussed in three

different places, chapters 27. VII, 28, and 58. XXI, and the same passages
from Hume’s Treatise of Human Nature are quoted and discussed in
chapter 20 as well as endnotes 3 and 65. And as anyone who reads the
work will testify, Kelsen never tires of repeating certain points he thinks
important, such as that a norm is the meaning of an act of will, and hence
cannot be subjeCt to the rules of logic.
But more importantly, there are divergences and discrepancies
between different parts of the book. A few examples follow. The
distinction he draws between general and individual norms in endnote 10
is different from the one he gives in chapter 1. X. In chapter 25. IV—VI (as
well as endnote 75), he claims that behaviour which is the object of a
norm can have the properties of being-commanded or being-permitted;
but in chapter 44. II he denies that being-obligatory can be the property
of behaviour. In chapter 26. IV (‘Empowering Implies Commanding’), he
says that every conferral of norm—creating power on someone contains
an implicit command to obey that person, while in chapter 59. II. A. cc
(‘The Reduction of Empowering to a Command’), the situation is
reversed: the power to create norms is conferred by commanding people
to obey the person in question. In chapter 50 (p.190), he claims that the
fact that a judge always has discretion (e.g. in determining the details of
the sanction) does not prevent the judicial decision from being deducible
from the statute: ‘If the validity of the individual norm “Schulze the thief
is to be punished with imprisonment” follows logically from the validity
of the general norm “All thieves are to be punished with imprisonment”,
then so do the individual norms “Schulze the thief is to be punished with
one year’s imprisonment” and . . . ’. But in chapter 58 (p.240), he denies
this very claim: ‘ . . . even if it were true that the validity of the individual
norm “Schulze the thief is to be imprisoned” followed logically from the
validity of the general norm “All thieves are to be imprisoned”, . . . [t]hat
he is to be imprisoned for one year cannot follow logically from the mere
requirement that he is to be imprisoned.’
Sometimes the discrepancies are terminological. For instance, in
certain chapters where he is discussing questions of language (e.g. 9 and
41), Kelsen draws a distinction between two words which are otherwise
often interchangeable, Sirm and Bedeatang (‘meaning’ and ‘signification’
respectively in the present translation): events or actions have a Simz
(meaning or significance), while words and sentences have a Bedeatang
(signification or meaning in the semantic sense). But in chapter 50
(second paragraph), he uses Sirm where we would have expected
Bedeatang, since he is talking of norms whose semantic meaning changes
over time. The impression we get is that different parts of the book were
written at different times and in different circumstances; for instance, in
endnote 71 Kelsen quotes from the original edition of an article by G. H.
 Introduction xiii

von Wright, while 1n6 endnotes 75, 78, and 100 he quotes from a reprint
of the same article.16 When he quotes from his favourite textbook on
logic, Sigwart’s Logi/e, he normally refers to the fifth edition, but for no
apparent reason he refers to the third edition in endnote 17.17
Of course, some of these infelicities may be due to Kelsen’s advanced
age. In 1968, he wrote in a letter18 that his memory was failing, and that
he was afraid that his other mental faculties were also weakening. He
concluded at that time that he thought it better not to publish any
further. He nevertheless continued working on ATN, and when he died
he left it up to his literary executors to decide whether they thought the
manuscript was worth publishing.
ATN comprises sixty-one chapters of text, to which are appended 185
endnotes discussing and commenting on the views of over 200
philosophers and legal theorists. The detailed, sometimes textual,
criticism of the works and views of other thinkers which we find in the
endnotes may not be familiar to many English-speaking readers of
Kelsen, but it is not new. RRZ contains over fifty footnotes, _many of
which are of this type, but they were omitted in the English translation.
The notes in ATN are on a much grander scale than those in RRZ, and
must represent comments and jottings collected over a span of many
years. They are therefore one of the most important and interesting
aspects of the book.
First, because of their sheer volume. They constitute fully half of the
book, and range in length from comments of a few sentences to longish
essays of over 4,000 words (e.g. endnote 138). Secondly, by the number
and variety of authors examined (over 200). They include some of the
great names in philosophy such as Plato, Aristotle, Aquinas, Hume,
Bentham, Kant, as well as a variety of other thinkers: German
philosophers of the late nineteenth and early twentieth century
(Meinong, Simmel, Rickert, Mach, Husserl, Scheler), logical positivists
(Ayer, Carnap, Schlick), moral philosophers in the analytical tradition
(Sidgwick, G. E. Moore, Prichard, David Ross, Carritt, Stevenson, Hare,
Toulmin, Baier, Mayo, Wellman), philosophers of language (Frege,
Wittgenstein, Ryle, J. L. Austin), logicians (J. S. Mill, £ukasiewicz,
Prior), deontic logicians (Jorgensen, Von Wright, Castaneda), legal
theorists (Jhering, Ehrlich, Stammler, Pound, Radbruch, Morris Cohen,
Bobbio, many American Realists, and some Scandinavian Realists),
writers on legal logic (Engisch, Kalinowski, Klug, Perelman, Tammelo).
Obviously Kelsen does not discuss each author’s whole philosophy, but
only some specific point relevant to the topic he 1s examining.
1" In the present translation, references are given to both editions of the article.
17 In the present translation, all references are to the English translation of the second
edition, except when a later edition differs from this.
13 Reprinted 1n (1973) 9 Rec/atst/aeorie 129.
xiv Introduction

No less remarkable is the variety of topics Kelsen touches on and the

variety of points he makes in his examination of these authors, from the
correct understanding of article 4 of the French Civil Code (endnotes 84,
158) to the rejection of the claim that non-E—uclidean geometry has
important consequences for law (endnote 135). He sometimes engages in
fairly long examinations of a given topic in the work of a philosopher,
such as Kant’s concept of logic (endnote 115) or practical reason in
Aristotle (endnote 164). Nor does he hesitate to pass comment on any
number of opinions in any number of branches of philosophy: e.g. the
distinction between normative and teleological ethics (endnote 16); the
principle ‘The end justifies the means’ (endnotes 20 and 21); the theory
of meaning (endnotes 33—7); deontic logic (endnotes 75—8); the
distinction between a morality of virtue and a morality of duty (endnote
87); the prediction theory of law (endnote 94) and the claim that the
object of law is the behaviour of judges (endnotes 29, 30, 98); the
normativity of logic (endnotes 113—16); freie Rechtsfindung (endnote
125); the claim that certain duties are stronger than others (endnote 153);
and ‘non-rigorous’ logic (endnote 185).
The endnotes are also interesting in that they give us an idea of the
authors who shaped Kelsen’s intellectual outlook. Of the philosophers
he mentions, those who flourished in the late nineteenth or early
twentieth century are overwhelmingly German-speaking and interested
in metaphysics and epistemology, while the more recent philosophers
are more likely to be English-—speaking (or identified with the English-
speaking philosophical world) and to be interested 1n language or logic.
This in itself is an interesting fact about Kelsen s philosophical
development, but the identity of these late nineteenth and early
twentieth-century German philosophers is also an important guide to
Kelsen’s philosophical education, though it would be a mistake to think
that the length of the discussion of a particular author in the endnotes is
an indication of his importance in Kelsen’s thought, some important
influences (e.g. Hermann Cohen or Rickert) being hardly mentioned at
all.
From a survey of the authors he quotes, we see that his knowledge
varies considerably from subject to subject. In some areas, Kelsen is very
well read. For example, on the question of the logic of imperatives, he
discusses the important early developments of this topic in the late 19308
and the 1940s, though his acquaintance with the literature (on this and
other topics) ends in the early 1960s. But as he is not trained in the
techniques of modern formal logic, his discussion of the literature of
deontic logic is limited to those points which do not depend on
formalization. His knowledge of general logic is practically limited to the
old Aristotelian logic which was still taught in his youth, and whenever
he needs an authority on the subject, he quotes any number of now
 Introduction xv

obscure textbooks written before the rise of modern logic, e. g. Sigwart,

Drews, Bergmann, Uberweg. In cases like this, he gives the 1mpression
of having no conception of the progress of scholarship. Another
example: when he discusses the philosophies of Plato and Aristotle (in
chapter 17), he makes use of remarkably old translations (e.g. Biese from
1835!) and commentaries which may have been epoch—making at the
time (e.g. Zeller, Teichmuller) but have surely been superseded since.
The impression we often get is of browsing through the library of Hans
Kelsen, the student and young lecturer in the declining years of the
Austro-Hungarian empire.
While many of the endnotes seem hopelessly dated, many others yield
fascinating comments on various legal philosophies, and in particular
show us Kelsen ranging through the literature on deontic logic, the logic
of imperatives, and legal logic in his examination of the topic which takes
up at least a third of ATN: the question of the applicability of the rules of
logic to norms.
The main body of the work is a mixture of standard Kelsenian views
and a number of developments, most notably the question of the logic of
norms. On the whole, the traditional Kelsenian views predominate in the
first half of the book, and the newer developments in the second half.
The sequence of topics discussed 1s outlined in the following paragraphs,
with an indication of the extent of the incorporation of previously
published articles.
Chapter 1 is a compendium of some of the main theses of Kelsen’s
theory of norms, most of which are developed at greater length
elsewhere in the book. The chapter looks like a summary of Kelsen’s
theory intended for separate publication, and in fact an earlier version
did appear as an article in 1965: ‘Zum Begriff der Norm’.19 The chapter
as published in ATN contains additional material not found in the earlier
article: sections V and VI are new, and sections IV and IX have been
expanded. The main footnotes of the article become endnotes 1, 4, 5, 6,
7, 8, 9, 11, and 12 ofATN (and there is additional material in endnotes 1,
4, and 7).
In chapters 2—7, Kelsen contrasts ‘ought’ (normative necessity) with
"must (causal necessity). He reiterates his earlier views about causal laws
and normative laws, natural sciences and normative sciences, and
causality and imputation.
Chapter 5 is somewhat out of place in this group. In it, Kelsen
develops the original thesis that all general norms are really conditional,
since a general norm can be observed only when there is an opportunity
to do so, i. e. only under certain conditions.

19 Festsc/arift fiir Hans Carl Nipperdey (Munich and Berlin, 1965) i. 57—70. English
translation: ‘On the Concept of Norm’, ELMP, essay 9.
xvi Introduction

Chapters 8—11 provide the psychological basis for Kelsen’ s theory of

norms. SinCe a norm is the meaning of an act of will, he expounds his
theory of the will, of acts of will, of commands, of obeying a command,
of understanding an utterance to be a command, of recognizing (or
acknowledging) a command. These chapters contain an important part of
Kelsen’s philosophy of mind, action, and language.
In chapters 12—15, Kelsen explains the connection between the
observance and the validity of a norm: since a norm cannot require
something impossible to perform, and since a general norm can only be
observed when there is an opportunity to do so, it ‘exists’ or ‘is valid’
only when there is an opportunity for compliance. The consequences of
this thesis for the existence of moral norms and legal norms are then
drawn.
Chapters 16—21 are about the logical gap between Is and Ought. In
chapter 16, Kelsen develops at some length his theory of the modes of Is
and Ought and the modally indifferent substrate, which put in a brief
appearance in RRZ (PTLZ: 6). 20 The other chapters are a critical
examination of various philosophers who misconceive the relation
between Is and Ought, either because they think that Ought lS inherent
in Is (i.e. values are inherent in reality), or because they dismiss Ought
altogether.
Various portions of these chapters are taken from a 1963 paper: ‘Die
Grundlage der Naturrechtslehre’. 21 The greater part of section II of
chapter 17 (on Aristotle) 18 from section 3 of the paper, and all of section
III (on Aquinas) from section 5. The last part of chapter 18 (on Kant)
comes from section 6 of the paper. Endnotes 59 and 61 of ATN are
derived from footnotes of the paper.
Chapters 22—4 are about the object and content of norms. They repeat
previously stated views of Kelsen’ s on the topic.
Chapters 25—7 expound the four different functions of norms:
commanding, permitting, empowering, and derogating. Some of this is
new to ATN. For the first time, Kelsen gives a clear account of what it is
for a norm to permit behaviour: it does so by repealing all or part of an
existing norm forbidding some behaviour. On the other hand, he fails (in
these chapters) to explain clearly how it is that a norm empowers.
(Kelsen has more to say on empowering in chapter 59.) It is in these
chapters (and the corresponding endnotes) that we find Kelsen’s views
on deontic logic, mainly in the form of criticisms of the claims of certain
20 In fact, the first form of this theory dates from the early years of Kelsen’s career. There is
already a mention of ‘forms’ and "subtrates in Das Problem der Souveninitiit and die Tbeorie
des Vo'lkerrec/ats (1920), footnote on p. 99.
21 (1963) 13 Osterreichisc/ae Zeitschrift fu’r o'ffentlic/aes Rec/9t 1—37. There are two English
translations of this paper: ‘The Foundation of the Theory of Natural Law’, by Peter Heath, in
ELMP, essay 6; and ‘Foundation of the Natural Law Doctrine’, by Carmen G. Mayer, in (1973)
2 Anglo-American Law Review 83—111.
 Introduction xvii

deontic logicians. The function of derogation, which was briefly

mentioned in RR2, is explained in some detail in chapter 27, which is in
fact simply a slightly amended version of the first half of the 1962 article
‘Derogation’.22 Endnotes 79 and 82 of ATN incorporate material from
footnotes of the earlier article.
Chapter 28 is a criticism of the theory of Joseph Esser, who held
(somewhat as Dworkin does) that certain principles of morality are part
of positive law.
Chapters 29—37 are a miscellaneous collection of chapters about
various issues discussed in Kelsen’s earlier expositions of the Pure
Theory: e.g. conflicts of norms, gaps in the law, the concepts of legal
duty and legal right. In most cases he repeats the position he had already
taken on the issue in question, except for chapter 29, where he renounces
his earlier view that conflicts between norms were impossible; this
chapter is in fact merely the second half of the article ‘Derogation’
referred to above in connection with chapter 27. In chapter 31, while
maintaining his long-standing position that there are no gaps in the law,
he gives a more complex explanation of this fact than in_his earlier works.
Chapters 38—49 are concerned with questions of language, and in
particular with the difference between a statement and a norm. This is
meant to prepare the ground for Kelsen’s discussion of norms and logic
in chapters 50—61. Chapters 38—49 contain much of Kelsen’s philosophy
of language. Chapters 39 and 40, an examination and criticism of two
authors who claim that norms are not necessarily commands, are part of
this sequence of chapters because of their connection with the distinction
between statements and norms.
The final third of the book (chapters 50 to 61) is devoted to the most
important new topic to be examined in ATN: the applicability of logic to
norms.
Chapter 50 sets out the issue: since norms have no truth-value, can the
principle of contradiction and rules of inference apply to norms?
Chapters 51—6 examine and criticize the views of a number of authors
who argue that a logic of norms is possible. Bits of these chapters and
some of the endnotes relating to them (the first two paragraphs of
chapter 51, the first half of chapter 54, parts of endnotes 128, 163, and
165) are taken from Kelsen s 1965 article, ‘Recht und Logik’. 23 Most of
endnote 162 is a quotation of a short 1968 article (minus its first
paragraph) called ‘Zum Fragen des praktischen Syllogismus’. 24
Chapters 57 and 58, the longest in the book, examine the questions
whether a conflict of norms amounts to a logical contradiction (ch. 57),
22 Ralph Newman, ed., Essays in jurisprudence in Honor of Roscoe Pound, (1962) 339—55;
reprinted in ELMP, essay 13
23 (1965) 12 Forum 421—5, 495—500, 579. English translation: ‘Law and Logic, ELMP, essay
10.
24 (1968) 15 Forum 333—4. English translation: ‘On the Practical Syllogism’, ELMP, essay 12.
xviii Introduction

and whether a norm can be deduced from another norm in conjunction

with statements of fact (ch. 58). These two chapters are somewhat
rambling, In that a number of other topics are examined 1n passing, but
Kelsen gives a negative answer to both questions.
Having denied that relations of contradiction or implication apply to
norms, Kelsen goes on in chapters 59 and 60 to claim that norms can
stand in other relations: one norm can ‘justify’ another norm (ch. 59. I),
one norm can ‘correspond’ to another norm (ch. 59. II), and the two
parts of a conditional norm stand in a logical relation of condition and
consequence (ch. 60). In the second half of chapter 59, we have the fullest
account by Kelsen of the ways in which a norm can confer the power to
create another norm.
The greater part (subsections b—f) of the first half of chapter 59 is an
amended version of a 1964 article called ‘Die Funktion der Verfassung’. 25
This chapter contains the only discussion of the Basic Norm 1n ATN.
Finally, chapter 61 is a brief discussion of the question whether there
is a particular logic used in legal reasoning: Kelsen claims there is not.
This chapter is simply the last few pages of the 1965 article ‘Recht und
Logik’ referred to above in connection with chapters 50—6.
Some of the topics which contribute to the importance of ATN have
not been mentioned in the preceding paragraphs because they are not
discussed in one specific section of the book. Two of them deserve to be
mentioned here: the objectivity of norms and the logical structure of
norms.
In Kelsen’s earlier works on the Pure Theory of Law, there was
considerable uncertainty as to the objectivity of [legal] norms. This
uncertainty arose mainly from his discussion of the Basic Norm and his
claim that‘presupposing the Basic Norm’ was somehow optional. This
led to the question of whether each individual was free to consider legal
norms to exist or not, and indeed to the question ‘Who presupposes the
Basic Norm?’ It would be an exaggeration to say that ATN lays these
uncertainties to rest, for there are statements which go both ways. On
the one hand, in the only discussion of the Basic Norm in the book (ch.
59. I), Kelsen calls the Basic Norm a fiction, thus reinforcing the idea that
norms have no objeCtivity. On the other hand, he speaks many times of
the Is of Ought (i.e. the existence of norms) and claims that this existence
is real, though of a different kind from that of natural facts: it is geistig
(mental) and ideell (e.g. ch. 44. II). Furthermore, in endnote 90, he states
categorically that the question whether a given normative system or a
particular norm exists is not something which depends on the individual
person.
25 (1964) 11 Forum 583—6. This article has twice been translated into English by Iain Stewart:
‘The Constitutional Function’, 1980 juridical Review 214—24; and ‘The Function of a
Constitution’, in Tur and Twining, eds., Essays on Kelsen, pp. 109—19.
 Introduction xix

In a work in which Kelsen discusses logical matters extensively, it is

not surprising that he should spend some time discussing the logical
structure of norms. His doctrine of the structure of categorical
(unconditional) norms is given in his theory of the modes and substrate
(mainly in ch. 16): every norm is composed of the mode of Ought plus a
modally-indifferent substrate (which has no truth—value). As for the
structure of conditional norms, there are brief discussions in various
parts of the book, though they do not form a consistent whole. Unlike
his claim in earlier works that there were two ways (i.e. causality and
imputation) in which a condition could be connected to a consequence
(thus implying that the difference is to be found in the connection), in
chapter 60 he holds that the connection between the condition and the
consequence is logically the same in both a statement and a norm (thus
implying that the difference is to be found in something other than the
connection). The nature of this difference remains unclear, since from
the discussion of the validity of conditional norms in ch. 5 and endnote
24, it appears as if the structure of a conditional norm is c.——> Ox
(where ‘c’ is the condition, ‘O’ the mode of Ought, and ‘x’ the required
behaviour), while in endnote 183 it appears to be O(c ——> x).
Even from the preceding summary of the main topics discussed in
ATN, it is clear that the title ‘General Theory of Norms’ is somewhat
misleading.
First of all, the variety of norms examined is extremely limited, i. e.
those of law and of morality. This is due in part to Kelsen’s conception
of norms, according to which rules of logic and directives for achieving
some end (‘rules of skill’) are not norms at all. But it is also due to a lack
of interest in anything other than the two standard kinds of norms
discussed in most works of German jurisprudence: law and morality. On
a few occasions, Kelsen also mentions ‘norms of Sitte’ (custom, manners,
usage)—e.g. endnote 1—or quotes authors who mention norms of Sitte
(ch. 28 and endnote 136), but he never explains their nature or their place
within a general theory of norms. And he has nothing to say about a
topic much discussed by analytic philosophers in the past few decades:
rules of games. In other words, Kelsen’s interest in norms is very much
that of a jurist.
Secondly, within the relatively narrow scope of his theory of norms,
his discussion of legal norms overshadows everything else. First of all, a
number of chapters are exclusively or mainly about law (e.g. 28,30, 31,
32, 33, 61). Secondly, the only non--legal norms examined are conceived
of 1n a thoroughly legalistic way: like legal norms, moral norms arise
either by custom or by deliberate enactment (Jesus, Moses, etc. are moral
‘legislators’), they provide for sanctions, they constitute a ‘system’ which
is ‘valid’ for a given territory or community, they all have the same force,
so that there can be no question ofprima facie obligations or of weighing
xx Introduction

duties one against the other (‘There are no degrees of being obligated’,
enate 153). Finally, very little is said about moral norms other than
what is necessary to point out the ways in which they differ from legal
norms; in other words, they are studied mainly as something with which
legal norms can be contrasted.
For these reasons, as I said earlier, ATN is less a general theory of
norms than an expansion of the Pure Theory of Law. In the rest of this
introduction, I wish to show how the views that Kelsen defends in ATN
on a group of interrelated questions—the nature, functions, and
individuation of norms, as well as the applicability of logic to norms—
represent the final stage of the evolution of his thought on these topics in
the last forty years of his life and grow out of the dissatisfaction he felt
about his position on these topics in the earlier works. The evolution of
his views will be traced from RRl through GTLS and RRZ to ATN, in
order to show that the Pure Theory of Law is something which
developed over time, while still remaining in many ways a very
distinctive theory unlikely to be mistaken for any other.

2. The Pure Theory of Law from 1934 to 1960

2.]. Reine Rechtsle/Jre (1934)

RRl, published when Kelsen was 52, is what I have called the ‘classical
version’ of the Pure Theory. It was intended to set out the conceptual
framework which would allow any exposition of the law of a given
jurisdiction to be scientific; in this sense, we can say, paraphrasing Kant,
that RRl was intended to be a ‘Prolegomenon to any future legal science
which claims to be scientific’. It is to a considerable extent a criticism of
the mistakes Kelsen sees in the general theory of law dominant in the
German-speaking world in the late nineteenth and early twentieth
centuries. The mistakes are of two kinds.
The first are philosophical. ‘Traditional jurisprudence’ is guilty of an
addiction to metaphysics and a vestigial belief in Natural Law. It must
therefore be cleansed of these noxious influences in order to become
scientific. But the opposite mistake must also be avoided: that of denying
the difference between the natural sciences and the Geisteswissensc/mften,
between Is and Ought..A sound philosophy will allow us to grasp the
essence of law and avoid confusing it with other disciplines, as traditional
jurisprudence does when it confuses law and morality, and more recent
thinkers do when they claim that law can be reduced somehow to
sociology.
The second group of mistakes 18 internal to traditional jurisprudence’5
account of a legal system, since it presents the contents and structure of a
 Introduction xxi

legal system as a collection of disparate elements. These often take the

form of ‘dualities’: public law and private law, creation of law (by law-
makers) and application of law (by courts), municipal law and
international law. Kelsen wants to show that there is a basic unity
beneath the apparent diversity, and that there is at most a difference of
degree (rather than of kind) in these ‘dualities’. Similarly, certain
concepts which traditional jurisprudence defines independently of law
(such as ‘person’ or ‘State’) can only properly be defined from ‘Within’
the law, and in this way the ‘duality’ between law and the particular
concept is overcome.
In both of these tasks, Kelsen is much given to ‘unmasking ideology’,
i.e. showing how certain philosophical or jurisprudential theses serve the
interests of those who defend them.
Kelsen’s views on the functions and individuation of norms, and of
their relation to logic, take the following form in RR1:
1. The Nature ofLaw. Law is not a set of empirical facts. It is a set of
‘meanings’, of interpretations of empirical facts: e. g. acts are interpreted
as being good (legal) or bad (illegal). Hence, law 18 not to be confused
with the behaviour of human beings. The central concept of this
—16).
interpretation of reality 1s that of a norm (§§ 2—7, 15—
But legal norms are not to be confused with moral norms; since
morality is purely subjective, making law dependent on morality would
make it subjective. Hence, the concept of law must be completely
detached from that of morality (§§ 8, 10). In particular, those legal terms
which have moral connotations, such as sollen (‘ought’), ‘validity’,
‘duty’, ‘rights’, and which suggest that we are morally bound by the law
(and serve the ideological function of justifying the existing legal
system), must be redefined in such a way as to deprive them of all moral
force (§§ 9, 21, 25(f), 26). For instance, to say that a legal norm is ‘valid’
is simply to say that it exists within that legal system, and not that it is
justified (§ 6).
Law is a particular ‘social technique, which consists in getting people
to do x by using coercion against them if they do not (§§ 12—14): in this
way, law 1s connected with empirical reality without belonging to it.
And so, while law (as a set of‘meanings ’) is in a sense unreal’ in
comparison with empirical reality, in comparison with morality (which
is subjective), it is something objective. This conception of law is ‘pure’
for it does not confuse law with natural reality (as sociological
conceptions do) or with morality (as Natural Law theory does) (§ 1).
2. Legal Science and Legal Norms (§§ 1, 7, 11). Legal science is
cognition of the norms of a given legal system. Like all sciences, legal
science is not passive: in a sense it actively‘ creates’ its object. The ‘legal
material’ produced by legal authorities does not necessarily exhibit the
xxii Introduction

fundamental characteristics of law: that it is a set of rules and that it is

coercive. Legal science takes all this material and casts it into a set of
sentences having the following form: a conditional clause about human
behaviour (e. g. ‘If A does B’) connected by means of the verb sollen to a
legal consequence concerning a coercive act (‘official C 15 to (sol!) order
that coercive act D be done to A’). All of the legal material can be
reformulated into sentences of this type; when so reformulated, legal
norms are called Rec/Jtssa’tze (which we can translate as ‘propositions of
law’). They are ‘statements’ (and not commands) and are analogous to
the laws of nature formulated by natural science: just as a law of nature
(in the realm of Is) says that if A occurs, then B occurs, so a proposition
of law (in the realm of Ought) says that if A occurs, then B is to occur.
In a legal norm (or proposition of law), sollen does not mean "ought
in a moral sense, it merely serves to indicate that the consequence (the
coercive am) 18 connected to the condition in a way which 18 different
from the connection in a law of nature. And since legal norms are
statements rather than commands, the term ‘sollen’ is divested of all
moral force (§ 11). Likewise, other terms with moral connotations can be
defined in such a way as to refer to legal norms (and so avoid any extra-
legal reference): to be subject to a legal duty is simply to be liable to the
sanction prescribed in a legal norm (§§ 23—4); a ‘delict’ is any behaviour
(of the person liable to the sanCtion) mentioned in the condition of a legal
norm (§§ 12—13), and so on for ‘right’ (§§ 19, 24), ‘person’ (§§ 20—1, 25),
‘State’ (§§ 46—8).
3. Functions of Legal Norms. All legal norms thus have the same
Structure and the same function. They are addressed not to the subjects
of the legal system, but to the officials, and direct them to impose
sanctions under certain conditions. There is no need to think of the law
as made up of two sets of norms, one requiring citizens to act in certain
ways, and the other requiring officials to impose sanctions if they do not.
Law is a single set of norms directing officials to use coercion, and
thereby imposing a legal duty on people to act in certain ways (§ 14).
4. The Structure of a Legal System. Law is not just a set of general
norms created by legislation (and custom). There are higher-level norms,
those of the constitution regulating the creation of these enacted and
customary norms. And there are lower—level norms: every legal
transaction (i.e. contract) and every judicial decision creates an individual
norm. Thus a legal system is a Stufenbau, a hierarchical structure of
norms of different levels of generality: the process of regulating
behaviour through coercion thus flows down from level to level,
becoming more and more concrete and individualized until it issues in
individual acts of coercion against specific individuals (§ 31).
A norm at one level is addressed to the official at the next lower level
and confers on him the power to create norms. In this way, the law has
 Introduction xxiii

this peculiarity that it regulates its own creation. And so a legal system
constitutes a dynamic system of norms: a system which keeps creating
new norms (§ 28). This contrasts with morality which is a static system:
lower norms are derived logically from higher norms, whereas in a legal
system, an act of norm-creation is required for any new norm to come
into being (§§ 27—8).
5. Consistency (§ SOa—c). Any set of statements must be free of
contradictions. This also applies to the set of propositions (or norms)
constructed by legal science. Since ‘A is to do x’ and ‘A is not to do x’ are
contradictories, these two propositions must not occur simultaneously
within the set of propositions constructed by legal science. This has two
consequences. (1) If the legal material should contain these two
sentences, legal science must eliminate one of them by the use of
principles such as ‘Lex posterior derogat priori. ’(2) If two independent
normative systems were both considered valid, then there would be a
standing possibility of two conflicting norms being valid at the same
time: hence, all valid norms must form a single system.‘ Since
international law and municipal law are both valid, they must form a
single system, and since law and morality do not form a single system,
they cannot both be considered valid.
These then are the claims Kelsen makes in RRl about the nature,
functions, individuation, and logical properties of norms. People
acquainted with Kelsen’s theory of law from GTLS or PTLZ will
recognize many familiar doctrines. But some of them raise certain
questions, and it is these questions I now want to consider.
1. Legal Norms and Legal Science. In RRl , Kelsen holds (1) that legal
norms take on their true shape only once they have been reconstructed
by legal science (and are then called‘propositions of law ), and (2) that
legal norms are statements This position raises two questions.
First of all, it is hard to see how legal norms can be statements,
especially for someone like Kelsen who thinks that norms are contingent
creations of human beings. There is clearly a confusion in Kelsen’s
theory between the norms created by legal authorities and the
propositions which appear in legal textbooks.
Secondly, since the traditional understanding of sollen is that it has an
imperative meaning, this new use of the word in a statement needs to be
explained. All Kelsen can say is that sollen expresses the particular way
in which the consequence is linked to the condition. This implies the
negative claim that the connection is not the same kind as in a law of
nature. But we are not told what a non-imperative sollen could mean.
2. The ambiguity in the concept of a norm. In RRl, norms have
incompatible features. On the one hand, they are often described as
sentences. This is most clearly so when they are called statements, but
xxiv Introduction

many other assertions about them also imply that they are sentences. For
example, when logical claims are made about them: when they are said to
contradict one anOther, or when one norm is said to be deducible from
another. On the other hand, norms are things which have some sort of
contingent existence. Admittedly, they are not natural objects, but
‘meanings’. But Kelsen does say that they exist, since the validity of a
norm is simply 1ts characteristic existence. Even though he says a norm
does not exist in space and time since it is n0t a natural fact (§ 6),
nevertheless there must be some sense in which norms begin and cease to
exist at certain points in time since they can be created and repealed by
appropriate acts of legal officials. But we cannot say this about sentences.
Admittedly, a written sentence begins to exist when it is written and
ceases to exist when it is erased or destroyed, but this is clearly not what
is meant by the existence of legal norms. The existence of legal norms
does nOt coincide with the existence of words in a statute-book or with
the momentary existence of spoken words. Thus there are two sets of
claims about legal norms which must be reconciled: those which imply
that a norm is a sentence, in particular those claims about its logical
features, and those which imply that it is a sort of entity which begins
and ceases to exist.
An analogy will make the point clear. Belief is a mental attitude
towards a proposition: the mental attitude is one thing, the proposition
is another. The mental attitude is a psychological state of a particular
person: it begins at a certain point in time, it lasts for a certain period of
time, and it may cease to exist at another point in time, and it may occur
in one person and not another. It is therefore relative to persons and to
time. A proposition, on the other hand, is—according to a common view
—an abstract, atemporal, logical unit. Propositions stand in certain
logical relations to each other—and do so atemporally—but it does not
follow that psychological states stand in such logical relations: proposi-
tion p may entail proposition q, but it does not follow that whoever
believes p also believes q. If one were to use the term ‘belief’ for both the
mental state and the proposition, confusion would arise. This is what
happens with Kelsen’s concept of a norm: it conflates the time-bound
and system-relative entity with the logical content of this entity.
This ambivalence about the nature of a norm shows up in an important
way in the contrast between static and dynamic systems of norms: legal
norms (which constitute a dynamic system) clearly are entities with
contingent existence since they must be posited by authorities in order to
be valid, but moral norms (which constitute a static system) appear to be
nothing more than sentences of a certain kind, since they can be derived
from each other (or from the Basic Norm) without any intervening act of
creat1on.
3. The Functions ofNorms. All legal norms (when reconstruCted) have
the same canonical structure: ‘If A does B, the official C is to (sol!) order
 Introduction xxv

that sanction D be imposed on A.’ Consequently, all legal norms have

the same normative function: they impose a legal duty on the person
liable to the sanction. This raises a number of questions.
First of all, what is the function of the norm with respect to the official
to whom the norm is addressed and who ‘is to’ order a sanction? Legal
norms do not impose legal duties on the officials to whom they are
addressed, but on the persons liable to the sanction. One would be
inclined to say that the norm commands the official to order the sanction
(but in a sense of ‘command’ which does not imply a legal duty), were it
not for the fact that legal norms are supposed to be statements, not
commands. Thus the whole issue Of the norm’s function vis-d-vis the
official remains shrouded in mystery. (For lack of a better term, I will
henceforth say that the norm ‘directs’ the official to impose the
sanction.)
Secondly, can norms perform any other normative functions? Kelsen
says that certain norms also confer rights, but the two meanings he gives
to ‘right’ (namely, correlate of duty, and power to sue) are reducible to
duty. Can a legal right mean more than this? And can legal norms
perform other functions, such as grant permissions?
Finally, it is an important feature of Kelsen’s theory that a legal system
is a hierarchy of norms, where higher-level norms regulate the creation
of lower-level norms. In other words, every legal norm (except those at
the lowest level) must perform the function of conferring the power to
create norms at the next lower level; this Kelsen certainly recognizes,
even though his discussion of legal powers is extremely sketchy in RRl,
and the term ‘legal power’ does not appear anywhere in the book. But
this function is difficult to reconcile with the thesis that all legal norms
have the form ‘If A does B, official C is to order that sanction D be
imposed on A.’ In the first place, the canonical form can be true only of
general legal norms created by legislation or custom and addressed to
judges. It is not clear how the material in the constitution—which is
clearly power-conferring—can be cast into this form, since constitutional
norms do not direct anyone to impose sanctions. Kelsen obviously wants
to say that all the norms in the legal system (including those in the
constitution) are concerned in one way or another with the use of
coercion, but it is a far cry from this claim to the thesis that all legal
norms exhibit the canonical form described above.
Secondly, since all general legal norms ‘direct’ officials to act in certain
ways and also confer the power to create norms, they must do the latter
by doing the former: it is because he is ‘directed’ to order the sanction
that the judge has the power to issue the individual norm ordering the
sanction. Thus a legal system is not made up of two kinds of norms,
some duty--1mposing and others power-conferrinOg(as Hart, for example,
claimed in the Concept ofLaw (Oxford: Clarendon, 1961), ch. 5), but of
a single type of norm which somehow performs both functions. But we
xxvi Introduction

are given no explanation of the way in which a ‘directing’ norm can

confer a legal power. Indeed, it is not clear at all how directing or
commanding someone to issue a norm confers on that person the power
to do so, for then anyone could confer norm-creating power on anyone
else just by commanding him to issue norms. The problem appears to be
that Kelsen’s image of a norm is that of something which ‘commands’ or
‘directs’, while his theory requires that all norms (other than those issued
by judges) be power—conferring, and so his only way of expressing this
funCtion1s with the language of commands: for 1nstance, he says that the
relation between a higher and lower norm is one of ‘binding’ (§ 33).
There is a similar problem concerning the Basic Norm. Since it reads
‘Coercion is to be (5011) exercised under the conditions and in the ways
specified by the author of the first constitution or by those delegated by
him’, it is a norm which ‘directs’ behaviour (like other legal norms). But
to whom is it addressed? And how can this ‘directing’ norm confer
norm-making power on the author of the first constitution?
4. The Place of Logic in Law. Kelsen’s discussion of the ‘applicability
of the rules of logic to norms’ in the last years of his life grouped together
two topics which had been treated separately in his earlier works (though
they were both, in his opinion, ‘logical problems’): that of the possibility
of inferring one norm from another, and that of the possibility of
conflicting norms.
In RRl, Kelsen assumes without any argument that one norm can be
‘deduced’ or ‘derived’ from another. For instance, from the norm ‘Do
not harm your neighbour’ we can derive the norm ‘Do not kill your
neighbour’, and so on. But this is true only of moral norms, because legal
norms are all power-conferring norms: they confer the power to create
other norms by enactment, and so a separate enaCtment is required for
any new legal norm to come into existence.
The confusion in Kelsen’s concept of a norm is at work here. In the
ordinary logical sense, derivation is something which occurs between
sentences (or sentence-meanings): it is in this sense that moral norms are
derived from each other in a static system. But when Kelsen claims that
legal norms cannot be derived from each other, what he means is that a
certain contingent entity (the individual norm ‘Executioner, hang XI’)
does not begin to exist simply because another contingent entity (the
general norm ‘If someone commits murder, a competent judge 18 to
order that that person be hanged’) exists. The difference between moral
and legal norms in this regard is due to an equivocation about the
meaning of ‘norm’ and hence about ‘derivation’. If we consider legal
norms to be norms in the same sense as moral norms (i. e. a kind of
sentence), then there 1s just as much reason to say that one legal norm can
be derived from another (e. g. ‘If someone poisons a person, he 18 to be
hanged’ from ‘If someone commits murder, he 13 to be hanged’) as there
 Introduction xxvii

is to say that one moral norm can be derived from another (e.g. ‘Do not
kill’ from ‘Do not harm’). Indeed, Kelsen seems to recognize this
(somewhat obliquely) when he mentions ‘the inference from general to
particular which every act of applying the law represents’ (end of § 42).
Thus the alleged logical difference between legal and moral norms has
nothing to do with the fact that legal norms are power-conferring (while
moral norms are not), but with a confusion of two concepts of a norm.
A similar confusion is involved in Kelsen’s discussion of conflicts of
norms. In RRl, legal science cannot allow conflicts of norms because
that would lead to inconsistency in the set of propositions of law
formulated by legal science: ‘one can no more assert that two norms with
logically mutually exclusive contents are simultaneously valid—i.e. that
A ought to be and simultaneously ought not to be—than one can assert
that A is and simultaneously is not’ (§ 50b). There are a number of
problems with this.
The firSt depends on the ambiguity in Kelsen’s concept of a norm. The
claim that ‘A ought to be’ and ‘A ought not to be’ are contradictories
presupposes that we are talking about sentences. But because Kelsen
does not distinguish between norms-as-sentences and norms-as-entities,
he then shifts to the claim that the two corresponding entities cannot
both exist at the same time.
As for the claim about the contradiction between the two sentences,
the only reason in support of it appears to be that these sentences are
instances (or analogues) of ‘A is’ and ‘A is not’. But that is hardly
sufficient. ‘She is loved’ and ‘She is not loved’ can both be true, if she is
loved by one person and not loved by another (and that is the analogue
of one kind of norm-conflict, i.e. when the two norms were enacted by
different authorities). What has to be shown is that a person cannot be
the subject of two conflicting requirements, and that is not a question of
logic at all, but one of normative theory.
Even if we make the charitable assumption that Kelsen was trying in a
clumsy way to make a normative rather than a logical point, for instance,
that he was trying to claim that one cannot be subject to inconsistent
requirements, his point is hardly incontrovertible, since conflicting
duties certainly seem to be possible.
Finally, the normative thesis that a person cannot be subject to
inconsistent duties (e. g. Ought implies Can), if true, is true of moral
requirements. There 1s no reason to think that there cannot be any
inconsistent legal requirements or rules of games. If, according to our
charitable assumption, Kelsen is trying to make/the normative point just
mentioned, then he seems to be working with the idea of a moral
requirement, which it is his goal to eliminate from legal theory.
These then are some of the problems created by Kelsen’s theory
expounded in the Reine Rechtsle/Jre of 1934. Kelsen would eventually
xxviii Introduction

become aware of some of these problems, and we can say that the
development of the Pure Theory of Law after 1934 was in part an
attempt to resolve some of them.

2.2. General Theory ofLaw and State (1945)

GTLS was written after Kelsen moved to the United States and
discovered English-language jurisprudence, in particular the Analytical
School and American Legal Realism. It was meant to be a restatement of
his views for an English-speaking audience, and included discussions of
thinkers this audience would be familar with, such as Austin and Gray.
(The second part of the book is a restatement of his political theory
originally published in 1925 as Allgemeine StaatslelJre.) On the whole,
the positions defended in RR1 have not changed. Nevertheless, there are
two important innovations which are relevant to our discussion.
1. The Distinction between Legal Norms and Rules of Law in a
Descriptive Sense. In RR1, legal norms were considered to be statements
or propositions. Kelsen came to see fairly soon that this was a mistake.
The legal material produced by legal authorities cannot consist in
propositions which are true or false, but the utterances of legal scientists
clearly must have truth-value since they can be mistaken. So Kelsen
draws a distinction between legal norms, which are produced by legal
authorities and have no truth-value, and ‘rules of law in a descriptive
sense’ (p. 45), which are formulated by legal science and are either true or
false. While the distinction is a very important one, it is not very well
thought out in GTLS .
The legal norms are somewhat akin to commands, but Kelsen, contra
Austin, refuses to call them commands for a number of reasons, e.g. legal
norms arise from custom but custom is not a command, statutes bind
even those who enact them but it makes no sense to say that a legislator
issues a command to himself, etc. (pp. 30—7). The best he can do is to call
legal norms ‘de-psychologized commands’ (p. 35). Yet, on many occasions,
he uses language about norms which is either ambiguous or which
suggests that the norms are not like commands, but rather like
propositions. For instance, he says that a norm ‘is a rule expressing the
fact that somebody ought to act in a certain way’ (p. 35, stress added) or
‘is the expression of the idea that something ought to occur’ (p. 36). Such
statements could apply equally well to imperatives and to statements.
More importantly, on a number of occasions he actually uses the term
‘statement’ to refer to norms: e. g. ‘This statement we accept as a valid
norm’ (p. 111). This is either a clumsy translation, or it reflects an aCtual
confusion in Kelsen’s mind.
As for the ‘rules of law in a descriptive sense’, they are the means legal
science uses to ‘represent’ or to ‘present’ the law, but that is about all we
 Introduction xxix

are told. Their status is quite ambiguous. On the one hand, they could
simply be “reformulated norms, norms carved out of the legal material
by legal science; but then one fails to see why they should have a
different logical status from the legal material, that is, be true or false. On
the other hand, they may not be reformulated norms at all, but
propositions ahout norms, but if so, the function of legal science is now
quite different from what 1t was in RR1, since describing norms is not at
all the same thing as reshaping or reformulating them. All in all, the
distinction between norms and rules of law 1n a descriptive sense is
seriously underdeveloped in GTLS, and seems to have been hastily
introduced into the whole theory without any consideration of its
consequences for the rest of the theory. (Small wonder then that those
authors whose main acquaintance with Kelsen was through GTLS had
such a hard time figuring out what he was trying to say. 26)
The most important of these consequences is that the claims made in
RRl about norms-cum-propositions now have to be divided up between
those which apply to the norms and those which apply to the
propositions of law (as I shall now call the ‘rules of law 1n a descriptive
sense’.) Consider the following examples.
In RR1, legal science shapes the legal material into propositions having
the canonical form: ‘If A does B, then official C is to order that sanction
D be performed against A.’ Since these propositions of law were simply
reconstructed norms, Kelsen could say that this canonical form was the
form of a legal norm, and that all legal norms had the same function. In
GTLS, it is propositions of law, and not legal norms, which have the
canonical form: Kelsen says that legal authorities do not necessarily
create norms with this form, and that a given proposition of law may
include material enacted on a number of different occasions (p. 45). But
then, what is the form or structure of a legal norm? And what happens to
the claim that all legal norms impose legal duties by directing officials to
order coercive acts, now that it is the propositions of law (and not the
norms) which have the canonical form?
In RRl, the logical claims which are made about norms have a
semblance of truth because norms were statements. But once the
distinction is drawn between norms and propositions of law, do the
logical claims apply to the norms or to the propositions, or to both? For
instance, the requirement of consistency is a requirement of legal science.
it is because propositions such as ‘A 15 to do X’ and ‘A 15 not to do X’ are
(supposedly) contradictories that they cannot be allowed to coexist
within a given ‘presentation’ of the law. Since no distinction 1s drawn
6e.g. Martin Golding, ‘Kelsen and the Concept of ‘ “Legal System” ’ (1961) 47 Archiv fur
Rezchts- und Sozialphilosophie 355—86 (reprinted in R. Summers, ed., More Essays in Legal
Philosophy (Oxford: Basil Blackwell, 1971) 69—100) and H. L. A. Hart, ‘Kelsen Visited’ (1963)
10 UCLA Law Review 709—28 (reprinted in Hart, Essays in jurisprudence and Philosophy,
pp. 286—308).
xxx Introduction

between a norm and a proposition in RRl, to eliminate a proposition

from a given ‘presentation’ of the law is to eliminate a norm. In GTLS,
Kelsen keeps saying that legal science cannot allow two contradictory
propositions to coexist. But once the distinction between norms and
propositions has been made, does eliminating a proposition of law entail
that a norm has been eliminated?
Similarly, RRl assumes that a norm can be derived from another
norm. But once the distinction between norms and propositions is
drawn, 1s it the norms or the propositions to which inferences apply?
They clearly apply to the propositions, since the latter have truth-value.
But Kelsen also repeats his claims from RRl about inferences involving
norms, both the claim about deriving one moral norm from another in a
static system of norms, and the implicit claim that inferences are involved
in applying a general norm to a particular case.
2. Functions ofNorms. In RRl , Kelsen thought that legal norms could
confer powers and rights, but they did so indirectly, i.e. by imposing
certain duties. The basic position remains the same in GTLS, but with
the following embellishments: he tries to explain how duty-imposing
norms can confer powers; he has four—instead of two—different
interpretations of the term ‘right’; and he thinks duty-imposing norms
can also grant permissions. In RRl, the term ‘legal right’ meant (1) the
correlate of a duty or (2) the power to sue. In GTLS, Kelsen gives two
other interpretations of the term ‘right’ (ch. 6): (3) A has a right to do X if
he is under no duty to refrain from doing X (but while this is an accepted
sense of ‘right’ in everyday speech, it is not a species of legal right, and
(4) A has a right to do X if others are under a duty not to prevent him
from doing X. (Kelsen considers 4 to be a separate sense of ‘right’ from 1
above.) As for a permission, it is the same thing as a right in sense 4: a
legally protected freedom to act. Thus when a legal norm imposes a duty
on people not to interfere with someone’s freedom, it grants a
permission to the person whose freedom of action is thereby protected
(p. 77). And so Kelsen’s doctrine of the functions of legal norms becomes
more complex, even though he does not give up the central thesis
that all legal norms have the same canonical form and are duty—
imposing.
As for norm-creating power, RRl left us with the following puzzle:
how can the thesis that all legal norms ‘direct’ officials to order coercive
acts be reconciled with the Stufenban theory of the legal system which
implies that the function of all norms (except those at the lowest level) 1s
to confer the power to create lower-level norms? More specifically, (1)
how can constitutional norms have the canonical form mentioned above,
and (2) how can general norms having the canonical form confer powers?
Kelsen provides an answer to both questions in GTLS.
With respect to constitutional norms, his answer is that they really are
not independent norms: they are actually part of every general norm of
 Introduction xxxi

criminal and civil law. Every general norm contains the constitutional
material in its ‘if’-clause. For example, every general norm of criminal
law would have the form: ‘If the Legislature has decided that all A are to
be punished, and if the competent court has found that B is an A, then.
(cf. p. 143). This has a number of 1mportant consequences. First, general
legal norms become enormously complex entities, incorporating legal
material created on many different occasions and involving a considerable
amount of redundancy (since the same material occurs in many norms).
Secondly, there are no longer any constitutional or higher-order norms:
a legal system consists of only two levels, general norms and individual
norms issued by courts and administrative officials. Thirdly, each general
norm is somehow the reason for 1ts own validity. Kelsen presumably
realized the weaknesses of his theory about the status of constitutional
norms, for elsewhere in GTLS (for example, when he discusses the
Stufenbau or hierarchy of norms), he simply ignores it and constitu-
tional norms are treated as separate norms, exactly as they were in
RRI. _ _
It should also be pointed out that there is an interesting connection
between this claim about constitutional norms, and the distinction
between legal norms and propositions of law. In one passage (p. 144)
Kelsen seems to say that there are two ways in which legal science can
"present the legal material: either divided up into norms occupying
different levels within the legal system, or concentrated within a single
type of norm directing courts to order sanctions. This makes sense on
one interpretation of the function of legal science (the ‘constructivist’
interpretation): the individuation of norms is a function of legal science,
and there is more than one way of doing this. But on the other
interpretation (the ‘descriptivist’) it makes no sense at all, since the
norms have to be given before one describes them, and the description
one gives of them cannot determine their number or structure.
The second question RR1 left us with was this: how can a norm
‘directing’ that sanctions be imposed on someone confer on the
addressee of the norm the power to create norms? More specifically,
how could the norm ‘If A does x, then B is to order C to impose sanction
y on A’ give B the power to create a norm binding on C? In GTLS (ch.
7), Kelsen’s position becomes: The norm ‘If A fails to obey D, then B is
to order C to impose sanction y on A’ gives D the power to create norms
binding on A. In other words, the person on whom norm-creating
power is conferred (i. e D) is no longer the person to whom the power-
conferring norm is addressed (B). And the person over whom he
acquires norm-creating power is no longer C but A. This 1s indeed a
possible way of conferring norm--making power, the question is whether
it is a plausible explanation of what goes on in a legal system. 27
27 It is this theory of power-conferral which Hart criticizes in the Concept of Law (Oxford:
Clarendon, 1961), ch. 3 sect. 1.
xxxii IntroduCtion

These then are the two important developments in GTLS. But some of
our earlier questions remain unanswered:
1. Nothing is said to clarify the ambiguity as to the nature of norms,
which have features pertaining to sentences (or sentence-meanings), as
well as features pertaining to entities which begin and cease to exist.
Indeed, Kelsen compounds the ambiguity in GTLS by making many
more statements about both kinds of features. For instance, when he says
‘This statement we accept as a valid norm’ (p. 111), he is clearly treating a
norm as a kind of sentence. But when he is explaining the difference
between a command and a valid norm, he says that a command lasts only
as long as the commander’s act of will, while a valid norm is ‘something
the “existence” or “validity” of which outlasts the existence of that real
will’ (p. 32): he is therefore treating a norm as something which exists
over time rather than something atemporal.
2. We do not yet have an adequate account of the power-conferring
function of certain kinds of norms (i.e. constitutional norms and the
Basic Norm).
3. The problems concerning Kelsen’s claims that one norm can be
derived from another and that conflicting norms cannot coexist have not
been resolved. As I pointed out earlier, the distinction Kelsen draws
between legal norms and rules of law in the descriptive sense simply
aggravates the problems.

2.3. Reine Rec/atsle/Jre (1960)

RRZ represents an important break in Kelsen’s legal theory: on a number

of topics there is a decisive shift away from the perspective of RR1 and
GTLS, though in many ways Kelsen minimizes the changes
1. The Definition of4 Norm. The most important new claim 1n RRZ 1s
Kelsen’s definition of a norm. it is the‘meaning’ of an act of will (§ 4b).
Now, there are two parts to this definition: that a norm is the meaning of
an act, and that this act is an act of will. The first part remains obscure 1n
RRZ. What does 1t mean to say that a norm is the meaning of an act? The
contrast between an act and its meaning cannot be the same as in RR1.
There, the meaning was something which human beings gave to an act:
for instance, on the one hand there was the ‘natural’ act of homicide, and
on the other hand its legal meaning was to be either murder or a lawful
execution. In the case of a command, the contrast is: on the one hand
there is the ‘natural’ act of commanding, and on the Other hand its legal
meaning is to create a norm (or 1mpose a duty or confer a power, etc. ).
But not: its legal meaning is a norm. Here the word‘meaning’ is being
used 1n a novel way, a way which 13 never made clear 1n RRZ.
The second part of the new definition of a legal norm is that it is the
 Introduction xxxiii

meaning of an act of 10211 In other words, all norms are produced by acts
of will, the most important of which 18 the act of commanding. In this
way, Kelsen disregards his own arguments in GTLS against the
Austinian view that legal norms are commands: for instance, while he
formerly claimed that custom (which is a source of norms) did not
involve any command, he now holds that it involves a collective act of
will (PTLZ: 9).
2. Legal Norms and ‘Rules ofLaw’. Another important innovation in
RRZ is Kelsen’s theory of the two meanings of sollen. In certain contexts,
a sollen-sentence is synonymous with an imperative and so has no truth-
value: ‘A is to do B’ understood prescriptively means ‘A, do B!’ Such a
sentence is a norm. In other contexts, a sollen-sentence is synonymous
with a statement about the existence of a norm and so has truth-value: ‘A
is to do B’ understood descriptively then means ‘There is a norm “A, do
B!” in force.’ Such a sentence is a statement about a norm.
This distinction leads to a clarification of the function of legal science,
and of the nature of the ‘rules of law in a descriptive sense’ first
mentioned in GTLS. In that book, it was not clear whether these ‘rules
of law’ were reformulated norms or statements about norms. In RRZ, the
doctrine of the two uses of sollen provides the answer: the sentences
formulated by legal science, while they have the same structure as the
norms themselves, are statements about norms. When it appears in a
statute, a sollerz-sentence such as ‘If A does B, then official C is to order
sanction D against A’ is a norm and has an imperative function, and
when it appears in a textbook, it is a statement about a norm and has a
descriptive function (§ 16, last paragraph). In RRZ, these statements are
called Rechtssdtze, which the English translation renders as ‘rules of
law’; I shall call them ‘propositions of law’.
Since the propositions of law produced by legal science merely
describe the legal norms created by legal authorities, the function of legal
science is now clarified. The ambiguity in the earlier works is resolved in
favour of the ‘descriptive’ or ‘passive’ function of legal science, and the
‘constructivist’ view advanced in RRl is given up (§§ 16—18). There is
still in RRl the occasional claim that science ‘creates’ its object (e.g.
PTLZ: 72), but these seem to be simply echoes of the past, for the
‘passive’ view of science has won the day.
Besides statements about norms, there is another kind of statement
connected with norms: value-judgments. In GTLS, Kelsen already had
an account of what it means to say that something is good or bad (GTLS:
40—1,47——9), in RRZ, his doctrine of value and value-judgments becomes
quite elaborate (§ 4e). The two important points to be mentioned here
are that an ‘objective’ value-judgment 15 an assertion that a certain
behaviour agrees with a norm, and that this kind of value-judgment can
be made without the speaker expressing his own attitude towards the
xxxiv Introduction

behaviour in question. Thus, in this type of utterance, there is always an

implicit reference to a legal or moral system: I can say (truthfully) ‘x is
good’ even though I do not have a favourable attitude to it, since what I
am saying is ‘x is good (in virtue of the norms of system S).’ We could
say that such value-judgments are "detached rather than ‘committed.
The same is true of the descriptive sollen--utterances of legal science. As
Kelsen explains in the footnote on the anarchist on p. 218 of PTLZ, when
a legal scientist says ‘No one is to commit murder’ this is being done—or
can be done—in what I have called a ‘detached’ way: the person saying
this is not expressing his own attitude about murder, since the utterance
means ‘The norm “No one is to commit murder!” is valid within the
legal system.’ This linguistic doctrine therefore satisfies the requirement
of Legal Positivism that it should be possible to state the law without
adopting a moral stance.
3 The Individuation and Functions of Legal Norms. The new
definition of a norm as the meaning of an act of will also has implications
for Kelsen’s theory of the individuation and functions of norms.
First of all, norms now appear to be individuated by acts of will: each
empowered act of will appears to create a separate norm. Thus, besides
the basic kind of legal norm ‘directing’ an official to order a sanction,
Kelsen mentions (§ 6e): norms which require behaviour without
directing an official to order a coercive act, norms which permit
behaviour, norms which repeal other norms, norms which confer norm-
creating power, and even norms which merely define a concept.
Admittedly, all of these norms are said to be ‘depen‘dent’ norms, that is,
they can exist only if they are related in a certain way to a norm of the
basic kind But they are supposed to be separate norms (and not just
parts of a larger norm of the standard kind, as in GTLS). The impression
we get is that each section in a statute is a separate norm. We have come a
long way from the position in RRl that all the legal material is recast into
canonical norms by legal science.
Secondly, the function a norm performs now depends on the type of
act of will. Kelsen thinks there are at least three different kinds of act of
will. commanding, permitting, and empowering (§ 4b). Each of these
kinds of act of will apparently gives rise to a norm with a different
function: thus there are norms which command, other norms which
permit, and other norms which empower. (We are not told how
derogating norms and norms which define a term are created.) So the
earlier position according to which all norms have the same form and the
same function (i.,e. that of directing officials to impose sanctions) is now
replaced by a theory that there are a number of different normative
functions, each of which is apparently performed by a different class of
norm, since each class originates in a different kind of act of will. And so
Kelsen is forced to dilute the claim that all norms contain 5011672, by
 Introduction xxxv

reinterpreting sollerz as a generic term which means ‘commanded or

permitted or empowered’ (c. f. PTLZ: 5).
But this new theory is not without problems.
Consider first that class of legal norms whose function is to confer the
power to create norms. In this class, Kelsen mentions the norms of the
ocnstitution and those of civil and criminal procedure (PTLZ: 56). He
seems to claim that they confer legal power because they are the meaning
of a particular class of act of will: an act of empowering (§ 4b, first
paragraph). But what exaCtly is this act of will? Everyone understands
what it is to command or to permit, but how does a person empower?
The concept of empowering is a technical term within a normative
system; unlike commanding and permitting, it does not seem to
correspond to any ‘natural’ act of will.
Consider now the main normative function, which is to command.
The central kind of legal norm is addressed to an official and ‘direCts’ him
to order a coercive act; in so doing, it imposes a legal duty on the persons
liable to suffer the coercive aCt. This thesis has remained unchanged since
RRl. In RRZ, Kelsen says explicitly that the behaviour which is
‘commanded’ by the norm is the behaviour of the private citizen liable to
the sanction (PTLZ: 25); the behaviour of the official who ‘is to’ order
the sanction is not commanded (at least, not by the norm we are
discussing). What then is the function of the norm with respeCt to the
official to whom the ‘commanding’ norm is directed? Kelsen’s answer is
that it empowers the official to order the sanction (PTLZ: 25). This, of
course, must be true, for the norms at one level must confer the power to
create norms at the next lower level. But this means that most legal norms
have two funCtions: they empower, and indirectly they command. But then
it cannot be the case that each normative function is performed by a
separate class of norm originating in a distinct kind of act of will. And
even if a single act of will can create a norm with more than one function,
we are none the wiser as to the kind of act of will which gives rise to
these norms which both empower and command.
Finally, we should say something about Kelsen’s new account of
permissions and permissive norms. In GTLS, a permission was a liberty
protected by a duty of non-interference imposed on others, and so it was
granted by an ordinary duty-1—mposing norm (addressed to others). In
RRZ, he distinguishes three meanings of‘permission’ (§ 4d). The first
meaning is that of GTLS: a permission is a liberty protected by a duty of
non--interference. In the second sense, a permission is a right to a definite
act on the part of another, that 1s, the correlate of a duty of someone else
to act in a certain way. In both of these senses, a permission is granted by
a norm imposing a duty on someone else.
In the third sense, a permission is the absence of prohibition. Now,
there are two kinds of permission in this sense: negative and positive. A
xxxvi Introduction

negative permission is the result of the absence of any norm prohibiting

the behaviour in question: thus any act which has not been prohibited is
negatively permitted. A positive permission is one conferred by a
specifically permissive norm. A permissive norm is one which creates an
exception to a norm prohibiting some behaviour. For example, a norm
prohibits the use of force, but another allows it in self-defence, and so
the second norm is a permissive norm. It is not at all clear from Kelsen’s
brief discussion of permissive norms (PTLZ: 15—17, 55—6) why there are
two norms in the situation just described, rather than a single norm
prohibiting the use of force except in certain cases. As was pointed out
above, the impression we get is that every section of a statute constitutes
a separate norm. Even if the exception had been created at a later point in
time than the original prohibition, it would seem that all that is needed is
a legislative act limiting the scope of the original prohibition; there is no
need to think there is a permissive norm which is in continuous existence
limiting the scope of the prohibiting norm. Kelsen’s postulating of a
permissive norm in this case is a sign of a tendency which manifests itself
in his later works, namely that of seeing a norm wherever there is an act
with normative effect (in this case, an act limiting the scope of a norm).
This tendency will become obvious in ATN, in connection with
derogating norms.
4. Norms and Logic. By 1960, Kelsen had become aware of the logical
problem generated in GTLS by the distinction between norms, which
have no truth-value, and propositions of law, which do: namely, how
can norms be subject to logic if they are neither true nor false?
In RRZ, Kelsen tries to avoid the problem without really coming to
grips with it, since he still maintains his earlier views on consistency (as
well as the claim that norms can be inferred from other norms, at least in
‘static’ systems: § 34a—b). Kelsen’s answer is this: since propositions of
law are clearly subject to logic (as they are propositions or statements),
and since there is a proposition of law for each legal norm, the principles
of logic which apply to the propositions of law can then be said to apply
indirectly to the legal norms themselves (PTLZ: 74).
Kelsen’s basic idea appears to be this. Propositions of law have the
same form as legal norms (‘If such and such occurs, then an official is to
do such and such), but with a descriptive rather than a prescriptive
meaning. Logical relations exist between propositions of law on the basis
of their surface structure: e.g. ‘A 15 to do x’ and ‘A 18 not to do x’ are
contradictories. Hence, the two norms which have the same structure
(though with a prescriptive meaning) are also contradictories (in some
indireCt sense).
There is a basic flaw in this answer: since propositions of law are
supposed to describe legal norms, there is no way of knowing what the
logic of these propositions is until we know the existence-conditions of
 Introduction xxxvii

the norms. If the proposition ‘Everyone is to love his neighbour’ means

‘There is a valid norm requiring everyone to love his neighbour’, then
there is no way we can tell if the proposition ‘Everyone is to love his
neighbour’ entails the proposition ‘Everyone 1s to help his neighbour’
unless we already know if the existence of the norm about loving one’s
neighbour entails the existence of a norm about helping one’s neighbour.
We cannot merely rely on the surface structure of propositions of law 1n
order to know what the logic of such propositions is. And so concluding
that certain logical principles apply (indirectly) to norms because the
same principles apply directly to the propositions is actually getting
things back to front.

3. Allgemeine Theorie der Normen (1979)

Kelsen’s last work is supposed to be a ‘General Theory of Norms’, but as

was explained earlier, legal norms are the paradigm, and the only other
norms discussed, moral norms, are modelled on legal norms. Indeed,
some of the topics discussed concern only legal norms, for example, gaps
in the law, and the effect of res judicata in allowing ‘invalid’ norms to
achieve validity. On the other hand, certain long-standing views of
Kelsen’s about legal norms do not put in an appearance: for instance, the
inevitable indeterminacy of all norms and the Stufenbau theory of the
legal system are not specifically mentioned in ATN, but there is no
reason to think he had given them up.28

3.1. The Concept ofa Norm

In ATN, Kelsen repeats the definition of a norm which he propounded
for the first time in RRZ: a norm is ‘the meaning of an act of will’ But he
supports it with a fairly lengthy exposition of his philosophy of mind
and language, which we find mainly in chapters 8—11 and 38—49. While
this 1s intended in part to prepare the ground for the discussion of the
question of the applicability of rules of logic to norms (in chapters 50—
61) by stressing the difference between thought and will, it also helps to
make clearer Kelsen’s concept of a norm, both in its emphasis on will and
in its emphasis on what we might call the ‘sentential aspect’ of norms.
The main‘points of Kelsen’s philosophy of mind and language which
interest us here are the following:
28 Very little has been written in English on ATN. A number of articles in the collection of
papers edited by Tur and Twining, Essays on Kelsen, mention or discuss Kelsen’s last work.
Inevitably, much more has been written in German, including two book: Opal’ek’s
Uberlegungen zu Hans Kelsens “Allgemeine Theorie der Normen” (Vienna: Manz, 1980) and
Weinberger’s Normentbeorie als Grundlage der jurisprudenz and Etbik (Berlin: Duncker 8C
Humblot 1981).
xxxviii Introduction

1. Mental acts are either acts of thought or acts of will. Every mental
act has a meaning, i.e. a content. The meaning of an act of thought is a
[mental] statement that something is the case. The meaning of an act of
will directed to the behaviour of others is a norm that someone is to am
in a certain way.
2. Language serves to express publicly the meanings of one’ s mental
acts. Thus an utterance is a statement when it expresses a mental
statement, and a norm when it expresses a mental norm.
Even from this very brief description of Kelsen’s theory of the mind, it
is easy to see that mental activity is modelled on linguistic activity:
believing and wanting are conceived of as acts (like uttering a sentence)
rather than as attitudes which persist over time, and the act in question
consists precisely in producing a mental sentence (the statement and the
norm, respectively). One of the problems this creates is the following:
Kelsen holds (correctly) that a statement is true (or false, as the case may
be) even if no one has ever ‘thought’ it or uttered it (ch. 44. 111); but if it is
the mental act which produces the statement, one-fails to see how it
could be true (or false) before someone ‘thinks’ (i.e. produces) it.
But a more important point to be made about Kelsen’s theory of mind
and of language concerns his explanation of the term ‘meaning’: the
meaning of a mental act is the sentence which forms its content. Both
statements and norms are meanings of mental acts. This has important
consequences.
First, the term ‘meaning’ (Sinn) is now very different from what it was
in the earlier works. In RRl, the meaning of an act or event was the
interpretation given to it in virtue of some shared practice: thus the legal
meaning of a certain homicide was to be a crime in one case and a lawful
execution in another. But this is quite different from the claim in ATN
that the meaning of the act is a norm. Here, the meaning is not an
interpretation of the act, but the mental content of the act. Both
statements and norms are meanings, but on the earlier definition of a
‘meaning’, a statement would not be a meaning. In ATN, Kelsen uses the
terms ‘geistig’ (‘mental’) and ‘ia'eell’ (‘existing in the manner of an idea’)
to characterize norms (e.g. ch. 44. II, endnote 106). The existence of
mental events or ‘products’ (such as norms) is just as real as that of
external events, only their existence cannot be discovered by the
methods used to discover external events. The distinCtion between an am
and its meaning is no longer that between a fact and its interpretation,
but that between a mental act and its content.
Secondly, this definition of a norm as a certain kind of mental sentence
exacerbates the confusion in his concept of a norm which we discovered
as far back as RRl , the confusion between a norm as a contingent entity
which comes into being at a certain moment in time and ceases to exist at
some other moment in time, and a norm as a kind of sentence or
 Introduction xxxix

sentence-meaning (which is necessarily timeless). The definition of a

norm as the meaning of an act of will puts the whole stress on the
sentential aspect of norms: this will have unfortunate consequences for
Kelsen’s discussion of the issue of the logic of norms, as we shall see
later.
Finally, this definition of a norm as a kind of mental sentence is
inconsistent with Kelsen’s long-standing claim that a command gives rise
to a norm only if the commander has norm-creating power in virtue of
another norm. For if every act of will directed to the behaviour of
another produces a norm, then the highwayman’s act of will produces a
norm ‘Hand over your money!’ Since in ATN Kelsen reiterates the
distinction between the subjective and the objective meaning of an act of
commanding (ch. 8. V), he is working with two different concepts of a
norm, one of which is reflected in the definition of a norm as the
meaning of an act of will, and the other in the distinction between the
objective and subjective meanings of an event, a distinCtion in which
‘meaning’ has the meaning it had in RRl , namely that of an interpretation.

3.2. Legal Norms and Legal Science

ATN continues the view of norms and normative science set out in RRZ.
There is no invocation whatsoever of the Kantian doctrine that science
‘creates’ its object. When Kelsen expounds his theory that causality and
imputation are two ways of connecting states of affairs, it is no longer (as
in RRl) the scientist who creates the connection between the two states
of affairs. Causal connections exist independently of man; what the
natural scientist does is describe or mirror this connection in a law of
nature. Admittedly, the connection of imputation does not exist
independently of man, but it is independent of the legal scientist: it is the
law-maker who creates it, and the legal scientist merely describes or
mirrors the connection, in a proposition of law (chs. 6, 7).
Indeed, the reduced role of legal science in RRZ appears still too
‘activist’ by the end of Kelsen’s life, since legal science can discard legal
norms in order to resolve conflicts within a legal system. Hence the
denial in ATN that legal science can resolve conflicts: if two conflicting
norms have been enacted, then all legal, science can do is describe the
situation, that is, assert that the legal system contains two conflicting
norms. This will be explained in greater detail later.

3.3. Functions ofNorms

In ATN, Kelsen reiterates his view that there are four normative
functions—commanding, permitting, empowering, and derogating. Fur-
thermore, commanding 1s the ‘typical’ function of norms (ch. 25.1), and
permitting and empowering are essentially connected with commanding
xl Introduction

(ch. 25. V, 26. IV). His views on rights and on the ways in which norms
confer rights remain the same as in RRZ. But he has more to say on the
way in which these different kinds of norms perform their functions.
Commanding Norms. In the earlier works, a standard legal norm
‘commanded’ behaviour because it imposed a legal duty on the citizen,
but it was unclear what the normative effect of the norm was on the
official. In RRZ, Kelsen said that the norm empowered the official to
posit individual norms, but it was still unclear how a norm formulated
imperatively (‘the official is to . . . ’) could confer a power.
ATN clarifies things considerably: a legal norm has two addressees,
one immediate (the official) and the Other mediate (the person liable to
the sanction), and both addressees can observe or violate the norm; this
implies that the effect of the norm on both addressees is one of
commanding. It 1mposes a legal duty on the mediate addressee and on
the official 1t imposes some sort of requirement which 15 something other
than a legal duty but which 15 never explained. The difficulty raised 1n
RRl that the imperative use of 5011672 implies moral force has completely
disappeared from view. (This is evidence that by the time of ATN, the
very meaning of the term sollerz had become quite attenuated for
Kelsen.)
Derogating Norms. Derogating norms were first mentioned in RRZ,
but nOthing was said about them, other than that they repealed other
norms. In ATN (ch. 27), Kelsen provides the missing information.
Derogating norms do not have the standard structure of a commanding
norm: ‘If A occurs, then B is to occur.’ Rather, they decree that a certain
norm is repealed. Only norms which explicitly decree that anOther norm
is repealed can effect the repeal of another norm. A norm with the
standard structure ‘If A occurs, then B is to occur’ cannot; hence a
standard norm cannot repeal another norm with which it conflicts.
Derogating norms are usually momentary norms, for as soon as they are
posited, their normative effect occurs and they cease to exist.
In Kelsen’s doctrine of derogating norms, we have the best example of
the tendency in the later Kelsen to consider every act -which has
normative effect to create a norm. When a legal authority repeals a norm,
all that needs to be said is that the act repeals the norm, just as an act
created the norm in the first place. Saying that the act creates a norm
which effects the repeal and then ceases to exist is an unnecessary
complication. Clearly, Kelsen is being misled by the fact that a statute is
repealed by another statute.
Permissive Norms. The analysis of permission is the same in ATN as in
RR2: permission is the absence of duty, and there are two kinds of
permission, negative (when there 15 no norm prohibiting the action in
question) and positive (when a prohibition lS limited by a specifically
 Introduction xli

permissive norm). But in ATN (ch. 25. IV), Kelsen explains what a
permissive norm is: it is one which repeals all or part of a prohibiting
norm. Hence, permitting norms are a species of derogating norms, and
so are (usually) momentary norms, though this does not come out very
clearly 1n his discussion. And so granting permissions is an indirect
function of norms: there are no norms whose only function 18 to grant a
permission.
Empowering Norms. Kelsen’s account of power-conferral in ATN is
somewhat confusing. In one passage, he seems to consider conferring a
power to be a direct function of norms, when he says that whenever the
power to create a commanding norm is conferred, people are indirectly
commanded to obey the person on whom the power has been conferred
(ch. 26. IV). And yet, in an important discussion of power—conferral in
chapter 59. II, he makes the opposite claim: power-conferral is an
indireCt function, the result of performing the function of commanding.
In that chapter, there are three ways in which a commanding norm can
confer a normative power:
(1) If A commands B to issue a command to C (and A has the power to
do so), then A has conferred on B the power to issue the command in
question (e. g. ch. 59. II. B. bb): this 15 the form of power--conferral
implicit in Kelsen’s earlier works, and we have shown that 1t cannot be
right, because anyone with authority over a person could then confer
any norm-creating power on that person.
(2) If A commands C to obey B (and A has the power to issue
commands to C), then A has conferred on B the power to issue norms
binding on C (ch. 59. II. A. cc). This is clearly right: if someone has
authority over a person, then he can share it with anyone else. This is the
explanation of power—conferral Kelsen offerred in GTLS, and while it is
theoretically correct, it does not seem to explain how power is conferred
on judges, for the general norms conferring these powers would have to
be addressed to enforcement officials rather than to the judges.
(3) If A commands B to do something (and he has the power to do so),
then he has conferred on everyone the power to issue to B any command
subsumable under the command issued by A (ch. 59.11. B. ff). This is
quite unconvincing, first because no one really thinks 1n this way, and
secondly because It seems perfectly otiose. The reason Kelsen1s driven to
hold this position is that since in ATN—as we shall see—he holds that
there is no such thing as a logic of norms, and so there is no way of
moving from the general to the particular in the normative realm by logic
(i. e. reason), there has to be some way of doing so by commands (i. e.
will), and so every general command must empower everyone to issue
any particular command subsumable under the general command.
xlii Introduction

In summary then, in ATN Kelsen holds that there are four normative
functions, but apparently there are only two kinds of norms. There are
norms which command (or 1mpose normative requirements), and some
of these norms also empower. And there are norms which repeal (or
remove requirements), and some of these norms also permit behaviour.
If this 15 correct and there are no purely empowering norms, then the
Basic Norm must be a ‘commanding’ norm: it must enjoin everyone to
obey the highest authority in that normative system (the first constitu-
tion in a legal system or the moral legislator 1n a moral system). And the
formulation Kelsen gives to the Basic Norm 1n ch. 59. I. D tallies with
this.

3.4. The Logic ofNorms

The Issues. Kelsen’s discussion of the logic of norms takes up the last
third of ATN (chs. 50—61), and since the examination of linguistic
matters in chapters 38—49 is meant to prepare the ground for this
discussion we could say that half of the book is given over to this topic.
Kelsen’s question is whether logic ‘applies’ to norms, but this rubric
covers two different issues which were discussed separately in some of
the earlier works. The first is whether two conflicting norms can coexist;
if they cannot, this means that when there occurs an enactment which
would give rise to a norm q which conflicts with an existing norm p, then
either the existence of p prevents q from becoming valid, or the coming
into existence of q repeals p. The second issue is whether general norms
and conditional norms ‘generate’ individual and unconditional norms
(respectively) when certain conditions obtain. For instance, if there is a
conditional norm ‘If it rains, shut the windows!’ and it begins to rain,
does this generate an unconditional norm ‘Shut the windows!’?
Similarly, does the general norm ‘Do not bring animals into the shop!’
generate individual norms such as ‘Do not bring this dog 1nto the shop!’ ?
Now, Kelsen considers these two questions to be questions of logic.
According to him, the first issue is whether conflicting norms are
‘contradictories’: if so, then only one of them could be valid at a time.
The second issue is whether one can ‘infer’ or ‘derive’ one norm from
another norm: if so, then one norm can ‘generate’ another norm in the
appropriate circumstances. (It is because the questions are phrased in
terms of ‘contradiction’ and ‘inference’ that they are presented as
instances of a more general question: ‘Do the rules of logic apply to
normSP’)
But the presentation of the two questions as questions of logic is the
basic flaw in Kelsen’s discussion of the two issues, because it involves the
fundamental confusion which has bedevilled Kelsen’s concept of a norm
since the very first days of the Pure Theory of Law: that between a norm
 Introduction xliii

as a kind of sentence or sentence-meaning and as a contingent entity

created and repealed by certain social events. This confusion persists in
ATN, and inevitably infects Kelsen’s discussion of the applicability of
the rules of logic to norms. For it is one thing to ask whether prescriptive
sentences are subject to logic and another to ask whether the existence of
a contingent entity (of a certain kind) entails the existence (or non-
existence) of another entity. Just as it is one thing to ask whether
proposition p entails proposition q, and another to ask whether the fact
that A believes p entails that he believes q.
Since Kelsen fails to see the confusion 1n his concept of a norm—and
consequently 1n the question about the applicability of logic to norms—
his discussion keeps shifting back and forth between the two issues
conflated 1n his question about the applicability of logic to norms.
Consider two of the arguments he advances:
1. Logic presupposes truth—value.
Norms have no truth-value.
Hence, logic does not apply to norms (e.g. second half of ch. 50).
2. Logic applies only to sentences, not to ‘things’.
Norms are ‘things’.
Hence, logic does not apply to norms (e.g. ch. 58. IX).
It is obvious that these arguments address two different questions.
Argument 1 is about a certain kind of sentence, while argument 2 is
about a certain kind of ‘thing’. Thus, while the conclusion appears to be
the same in both cases, it is not: in the first case, the conclusion is that
logic does not apply to prescriptive sentences, and in the second case, it is
that the existence of one norm does not entail the existence (or non-
existence) of any other norm. And so, Kelsen’s arguments fall into two
classes:
1. arguments that logic does not apply to prescriptive sentences,
and
2. arguments that the existence of one norm never entails anything
about the existence of any other norm.
Clearly it is the second issue which is the important one, for what Kelsen
wants to show is that norms do not ‘generate’ other norms, and that the
existence of one norm does not repeal (or prevent the coming into
existence of) a conflicting norm. And so his first class of arguments is,
strictly speaking, beside the point.
Kelsen comes closest to seeing the difference between the two issues
when he discusses ‘merely thought norms’ In Kelsen’s vocabulary, this
term refers to a prescriptive sentence which does not exist as a positive
norm, but 15 only represented 1n the mind. At the very end of chapter 58
(sect. XXIII), he raises the question whether logical principles might not
apply to ‘merely thought norms’, i. e. to prescriptive sentences. His
xliv Introduction

answer is that even if they did, this would be of no interest to normative

theory, since the question in normative theory is whether logical
principles apply to positive norms, i.e. whether the existence of one norm
ever entails the existence (or non-existence) of another norm. It is a
shame then that when he discusses the latter question, he does not realize
that many of the people he is arguing against are discussing the former
question, and that some of his own arguments concern the former
question.
Finally, it is important to realize that while the question whether logic
applies to prescriptive sentences is a question of logic, the question
whether the existence of one norm ever entails anything about the
existence of any other norm is not: it depends on considerations that
have nothing to do with logic. Consider again the analogy with beliefs:
the question whether the fact that A believes that p ever entails that he
believes that q does not turn on any logical considerations, but on the
nature of belief. Likewise, the question whether two conflicting norms
can coexist is one of normative theory and not logic: what troubles many
people about conflicting norms is that, on the assumption one ought to
do what a norm requires, they imply conflicting requirements (or duties
or ‘oughts’). The problem is whether it is possible for one to be subject
to incompatible duties, that is, the problem is normative and not logical
in the sense of formal logic.
Likewise, the questions whether general and conditional norms
‘generate’ individual and unconditional norms is a question concerning
the ontology of norms and not one of logic. What troubles Kelsen about
the possibility of inferences involving norms is that new norms are
‘generated’ as new situations arise. Whether the norm ‘No dogs allowed’
generates the norm ‘This dog not allowed’ is not a question of logic, but
one of ontology of norms: its answer depends on whether one believes
that there is a separate norm for every situation which arises, or only one
general norm ‘No dogs allowed’. Again an analogy 1s useful: proposition
p may entail proposition q, but the faCt that there exists a book
containing p does not entail that there exists [another] book containing
proposition q. The answer does not depend on logic, but on ontology (in
this case, the ‘ontology of books’).
Kelsen’s discussion of the logic of norms in ATN is involved,
disjointed, and often hard to follow (and of course involves the
confusion we have just been examining). It can usefully be divided into
two parts. Kelsen’s main argument against a logic of norms is the fact
that norms have no truth-value. In chapters 51—6, as well as some
sections of chapters 57 and 58 (and a number of endn0tes relating to
these chapters and sections), Kelsen examines and criticizes the views of
a number of authors who argue that a logic of prescriptive sentences is
possible (in spite of their lacking truth-value): this debate is properly one
 Introduction l

about logic (since it is about sentences of a certain kind) and Kelsen

generally manages to keep within the bounds of a debate about norms-
as--.sentences The second part of Kelsen s discussion of a logic of norms
comprises the other arguments he advances against a logic of norms,
other than the fact that they lack truth-value. These arguments are to be
found in chapters 57 and 58 and they presuppose that norms are
contingent entities rather than a kind of sentence.
Kelsen’s Criticism of Attempts at Creating 4 Logic of Norms. The
authors Kelsen criticizes (mainly in chapters 51——6) tried for the most part
to show that a logic of prescriptive sentences was possible. Since Kelsen’s
treatment of the 1ssue is so disjointed, it is necessary to engage in a
considerable amount of reconstruction both of the 1ssue and of Kelsen’s
discussion of it.
The basic problem about a logic of prescriptive sentences is that these
sentences have no truth-value: how then can they stand in logical
relations when standard logic is based on truth-value? The various
solutions to this difficulty offered by the authors Kelsen examines fall
into a number of classes:
(1) A few authors claim that prescriptive sentences can be shown to be
equivalent 1n some way to statements, and so subject to standard logic.
e. g. Bohnert (endnote 139) and Klug (endnote 141). Kelsen gives short
shrift to these claims.
(2) A second group argues that prescriptive sentences contain
descriptive elements, and so logical relations can hold between the
prescriptive sentences on the basis of these elements. Prescriptive
sentences contain either (A) descriptive terms, according to Wellman,
Moritz, Ayer, and Moser (all in endnote 138), (B) a descriptive phrase
(which is combined with a sign of mood), according to Jorgensen (ch. 51)
and Hare and Schreiber (both in endnote 138), or (C) a complete
proposition embedded in the prescriptive sentence, according to Husserl
(ch. 52), Engoisch (endnote 138), and S1gwart (ch 53).
Kelsen rejects all claims that prescriptive sentences contain any
descriptive element: his basic argument is that such a sentence would
both have truth—value (because of the descriptive element) and lack
truth-value (because 1t is prescriptive). What these authors take to be a
descriptive element 1n a prescriptive sentence is, according to Kelsen, the
modally indifferent substrate (which 13 neither descriptive nor prescript-
ive).
(3) A third strategy is to correlate each prescriptive sentence with a
certain proposition: a prescriptive logical relation would then hold
between two prescriptive sentences when the corresponding standard
relation holds between the propositions with which the prescriptive
sentences are correlated. The favourite candidate for this correlation 1s
li Introduction

the proposition that the prescription has been complied with: Dubislav
(ch. 54), Frey (ch. 56), and Hall (endnote 138). Two others are the
proposition that the relevant prescription has been issued (Frey, ch. 56)
and the proposition that the speaker of such a prescriptive sentence
wants the addressee to act in the way indicated (Radbruch, endnote 139).
(4) The final strategy is to identify a property ‘X’ of prescriptive
sentences which would be the analogue of the truth of a proposition, and
then create a prescriptive logic based on ‘X’ and isomorphic with
standard logic: just as a valid inference-form for propositions is truth—
preserving, a valid inference-form for prescriptive sentences would be
X-preserving There are two candidates for the role of‘X
The first is the satzsfactzon (or observance) of the prescription:
prescriptive sentences are assigned the values ‘satisfied’ (observed) and
‘not-satisfied’ and a prescriptive logic isomorphic with standard logic is
then developed using these values instead of truth and falsity. (The
results are the same as with the third strategy above, but the technique is
different.) This is the view of Hofstadter and McKinsey (ch. 55) as well
as Alf Ross (ch. 55). Kelsen’s attack on this strategy is to be found in
sections IX—XI of ch. 57, and incidentally in section XVI of ch. 58: it
consists in pointing to differences between truth and satisfaction in order
to conclude that there can be no analogy between them, and hence no
grounds for a satisfaction-based logic.
The second candidate for the role of the analogue to truth is validity: a
prescriptive logic would then be validity--preserving as standard logic 1s
truth——preserving. The proponents of this view are Klug and Schreiber
(endnote 141). Kelsen’s criticism of this view are to be found 1n a number
of places: chs. 44. I and Iv, 57. III and X, and 58. IX and x. Some of his
criticisms remain within the bounds of a debate about the existence of a
logic of prescriptive sentences, but others do not. Among the first class
of arguments is the one to be found 1n ch. 58. X about the disanalogy
between a ‘theoretical’ syllogism (where the premisses and conclusion
are all statements) and a supposedly‘normative’ syllogism (where the
major premiss and conclusion are norms, and the minor premiss is a
statement): 1n the former, the truth of the conclusion can be ‘contained’
in the premisses since the premisses have truth-value, but in the latter,
the validity of the conclusion cannot be ‘contained’ in the premisses
when one premiss has truth-value and the other validity-value. A more
modern way of putting this point would be to ask how sentences of
different logical types (some with truth-value and others without) can be
combined using standard logical connectives.
But Kelsen’s central line of argument against a validity—based logic is
of a quite different kind. Relying on the disanalogies he pointed out
between truth and validity in chapter 44 (e.g. truth is timeless, but
validity depends on acts of will), he claims that proponents of a validity-
 Introduction xlvii

based logic misunderstand the nature of validity: it is not a property of a

norm (like the truth of a proposition), but rather its existence (chs. 57.
III, 58. IX). If he had been able to make the distinction between a norm-
as-sentence and a norm-as—entity, he could have made the point more
cogently by saying that the reason why the validity of a norm is not a
property of a kind of sentence (like the truth of a proposition) is that a
norm is not a kind of sentence at all. This argument involves a shift away
from the topic being discussed by the authors he criticizes (i.e. the logic
of prescriptive sentences) to the topic of the ontology of norms-as-
entities.
Kelsen’s Other Arguments against 4 Logic of Norms. Besides his
criticisms of the various attempts to establish a logic of prescriptive
sentences, Kelsen has a number of other arguments against a logic of
norms. They are to be found in his examination of ‘contradiction’
between norms (ch. 57) and inferences involving norms (ch. 58). These
arguments all presuppose that norms are entities rather than sentences,
and so the points being made are not really logical (even though he
thinks they are). There are three main arguments:
1. Norms are ‘things’, and logical relations hold between sentences,
not between ‘things’: ch. 58. IX; also ch. 50 (penultimate paragraph).
There is a sense in which this is true, but irrelevant. While it is true that
logical relations hold between linguistic units such as sentences, the point
is relevant only if the issue of a ‘logic of norms’ is actually a logical issue.
But as I explained above, if what is being discussed is the normative
question whether one can be subject to conflicting requirements or the
ontological question whether one act of will can give rise to more than
one norm, then these are not logical questions at all.
2. It is wrong to say that only one of two conflicting norms can be
valid: both have to be valid (i.e. in existence), for otherwise there would
be no conflict: ch. 57. IV, VII.
This is not an argument which will do much for Kelsen’s reputation.
He interprets ‘conflict’ as being a relation between existing entities, and
so holds—quite logically—that the two norms have to exist in order for
there to be a conflict. Unfortunately, this does not answer the question
‘If there occurred two enactments whose contents conflicted, could they
both give rise to valid norms?’ While Kelsen is right to see that the issue
is about the possible coexistence of two entities, his inability to
distinguish between sentences and contingent entities means that he
thinks the conflict is between two entities rather than between two
sentences.
3. A norm can come into existence only if there occurs an act of will of
which the norm is the meaning. From one norm, it would be possible to
‘derive’ other norms only if the latter norms were implicit in the former,
xlviii Introduction

and this in turn presupposes that the acts of will of which the latter are
the meaning are implicit in the act of will of which the former is the
meaning. This is possible only if all the particulars concerning the
‘derived’ norms could be known by the author of the original norm.
Hence, no individual norm is ever derivable from a general norm
because each individual norm concerns particular circumstances which
the author of the general norm could not be aware of when he posited
the general norm. For instance, when the legislator enacts the norm ‘If
someone commits murder, he is to be hanged’, he cannot know that in
ten years’ time someone called Schulze will murder someone called
Maier, therefore his act of will concerning the hanging of murderers
cannot contain an act of will concerning the hanging of Schulze for the
murder of Maier, and so this individual norm cannot be implicit in, and
consequently derivable from, the general norm (ch. 58. X, XIV, XV). On
the other hand, from a general norm one can derive any norm of a lesser
degree of generality which does involve any individual knowledge. For
instance, since it is general knowledge that slandering someone is
harming him, the author of the norm ‘Do not harm others’ also wants
people not to slander others, and so the norm ‘Do not slander’ is
derivable from the posited norm ‘Do not harm’ (ch. 58. XXII).
Once again, the argument is presented as if it were a matter of logic
when in fact Kelsen is putting forth his views about the ontology and
individuation of norms, namely that each norm requires an act of will
concerning all the particulars of the norm. While many things could be
said about Kelsen’s ontology of norms, one point stands out, namely,
that the present argument is inconsistent with everything else Kelsen
says about a ‘logic of norms’ in ATN, since it allows that some norms are
derivable from other norms, when all his other arguments are to the
effect that no derivation is possible. If the fact that norms have no truth-
value did imply that a logic of norms was impossible, then ‘Do not kill’
could not be derivable from ‘Do not harm’ (as Kelsen claims here). This
shows again that the question of the ontology or existence-conditions of
norms is separate from the question of the logic of prescriptive sentences.

3.5. The Consequences 0ftbe Denial ofa Logic ofNorms

Kelsen’s denial that logic ‘applies’ to norms has important consequences,
some of which he was aware of, and some of which eluded him.
1. First, Kelsen’s new position subverts—or at least implies radical
changes in—his theory of descriptive sollen-sentences, though he barely
adverts to the fact (e.g. ch. 57. VI). Two theses in this theory are involved:
(1) every descriptive sollen-sentence asserts the existence of a norm (e.g.
‘You are not to smoke”, interpreted descriptively, means ‘ “Do not
smoke!’ is a valid norm [of a given system]’); and (2) descriptive sollen-
 Introduction xlix

sentences are subject to logic. Kelsen never gives any account (or
examples) of the logic of descriptive solle72-sentences, but ‘All murderers
are to be hanged’ would appear to entail ‘This murderer is to be hanged.’
This is almost certainly what Kelsen believed at the time of RRZ, since he
then thought that the two corresponding 720rm5 did stand in a relation of
entailment and that logic was applicable ‘indirectly’ to norms because it
was applicable directly to the corresponding descriptive solle72——sentences.
But if the logic of descriptive 5011672—sentences does allow such an
inference and descriptive sollen—sentences are statements about the
existence of norms, then ‘ “Hang all murderers” is a valid norm’ entails
‘ “Hang this murderer” is a valid norm’, and this is what Kelsen now
denies. Either he must give up his thesis that descriptive sollen-sentences
are statements about the existence of norms, or he must concede that the
lack of logical relations between‘norms’ must also apply to descriptive
5011672—sentences (since the latter must reflect the existence--conditions of
norms). Since he reiterates the former doctrine 1n ATN, it is the idea that
there is a logic of propositions about norms which will have to give way.
(Incidentally, this shows once again that the question of a ‘logic of
norms’ does not turn on logical points such as the lack of truth-value of
norms, since norms (without truth-value) and statements about norms
(which are true or false) will suffer from the same logical disabilities.)
2. Kelsen’s new position means that conflicting norms can coexist. His
original reason for holding that a normative system could not contain
conflicting norms was that the description of this system would contain
contradictory propositions: ‘Everyone is to do x’ and ‘No one is to do
x’. Now that a normative system can contain conflicting norms and the
description of this system can contain these two propositions, they must
be reinterpreted so that they are no longer contradictories, for otherwise
the description of the system will be inconsistent. This Kelsen recognizes
(ch. 57. v1). (This is another instance of the need for radical change in
Kelsen’s theory of descriptive sollerz-sentences.)
Next, since there is no longer any restriction on the coexistence of
conflicting norms, there is no need for the thesis that two normative
systems cannot be considered to be valid if they are independent of each
other. Hence, law and morality can be considered to be valid at the same
time, and more importantly municipal law and international law can be
considered to be independent of each other, though in ATN Kelsen
never says a word about the relation between municipal and inter-
national law.
3. Kelsen’s thesis that there cannot be any inferences involving norms
and that no general or conditional norm ever ‘generates’ an individual or
unconditional norm has disastrous results for practical reasoning: if there
is no way (in logic) of establishing any connection between a general rule
and a particular situation, how then can general rules guide action? The
1 Introduction

problem is compounded by Kelsen’s thesis that the only kind of norm a

person can obey ‘immediately’ is an individual norm, for then the need
for the ‘generation’ of individual norms by general norms seems all the
greater. Kelsen must find some solution to this difficulty consistent with
his denial of any logic of norms. If the connection between general
norms and particular circumstances cannot be based on logic (or reason),
then it must be based on will: general norms must be understood nm as
directly regulating behaviour, but as conferring upon people the power
to create individual norms adapted to each particular situation.
Here is how Kelsen’s theory IS meant to work 1n practice (e. g. ch.
58. XII.I) Suppose there 13 a general moral norm. ‘No one is to lie.’ This
norm is not to be understood as actually commanding people not to lie,
but as conferring on everyone within that community the power to
create individual norms prohibiting lying in individual cases. Since the
only norms which can be observed ‘immediately’ are individual norms,
A’s uttering lie x in situation 3/ is not wrong unless someone issues the
individual norm ‘A, do not utter lie x in situation y.’ It should be A
himself who issues this individual norm to himself, but if he fails to do so
anyone may do so, and then uttering lie x in situation 32 becomes wrong.
If the issuing of the individual norm occurs after A has uttered lie x in
situation 3/, then it is possible to judge A’s act to have been wrong.
(Apparently, the act becomes wrong retroactively.)
The same is true of conditional norms, such as ‘If it rains, shut the
windows.’ Once it begins to rain, the addressee is not bound to shut the
windows unless someone—himself or someone else—issues an uncondi-
tional norm to that effect.
And the same is true (with modifications) of legal norms (ch. 58. XV).
Suppose there is a general legal norm ‘If anyone libels another, a
competent judge is to order that this person pay damages.’ A competent
judge finds that A libelled B. But he is under no legal requirement to
order him to pay damages unless there is a valid individual norm
addressed to him: ‘Order A to pay damages to B.’ Again, it would
normally be the judge who issued this norm to himself; but if he does
not, then—unlike the situation in a moral system—everyone else does
not have the power to issue it. The only people with this power are
higher judges, and that is exactly what happens when an appellate court
overturns a finding for the defendant: it issues the individual norm to the
trial judge: ‘Order A to pay damages to B.’
It is easy to see how the inspiration for this strange doctrine is Kelsen’s
own legal theory. He never thought of general legal norms as directing
citizens to act in certain ways: rather, they were addressed to judges and
directed them to issue individual norms ordering specific individuals to
be punished. Between the enactment of a criminal statute by the
legislature and the sentencing of a particular criminal, there has to be an
 Introduction li

intervening act of will: that of the judge. Kelsen now extends this idea to
all general norms: their effect is not to command behaviour, but to
empower certain people to posit individual moral norms for each
situation which arises. In this way, a separate act of will must intervene
between the‘enactment’ of any general norm and the individual’s duty 1n
any particular case. And so the passage from general norms to individual
acts is accomplished not by logic or reason, but by acts of will. Everyone
becomes a judge, at least in a moral system.
4. The fact that all general norms are now power-conferring norms has
an important consequence: the collapse of the distinction between static
and dynamic systems of norms. In the earlier works, dynamic systems
(like law) were made up of power-conferring norms, while static systems
(like morality) were made up of norms commanding behaviour directly,
from which further norms could be derived by logic. But now, all
systems must be dynamic. Hence, in ATN there is no longer any
mention of the distinction between static and dynamic systems (though
Kelsen never states that the distinCtion is no longer applicable).
5. Finally, while Kelsen’s account of the passage from general norms
to particular acts thanks to acts of will fills part of the gap left by the
disappearance of a ‘logic of norms’, there is still a problem to be resolved.
For if every general norm confers the power to create individual norms,
there has to be some way of verifying that the individual norm falls
within the grant of power from the general norm, and this must be based
on some sort of logical relation between the two norms. In other words,
if the individual norm ‘A, do not kill B’ is valid, it must be because of
some relation it bears to the general norm ‘No one is to kill.’
Kelsen’s answer is that while there are no logical relations between
norms-as-sentences, there is a relation between terms which he some-
times calls ‘subsumption’ and sometimes ‘correspondence’ (ch. 59. II).
For instance, the term ‘Schulze’ is subsumable under the term ‘person’.
This allows him to claim that there is a kind of relation which holds
between two existing norms, which he calls again ‘correspondence’. For
instance, if there exist two valid norms ‘A person is not to kill any other
person’ and ‘Schulze is not to kill Maier’, the relation of subsumption
between the terms ‘person’ on the one hand and ‘Schulze’ and ‘Maier’ on
the other means that there is a relation of correspondence between the
two norms. It is this relation of correspondence between two norms-as-
entities which is meant to replace the relation of entailment between two
norms-as-sentences, and to allow normative force to be transmitted from
one norm to the other.
But there is something fundamentally wrong with Kelsen’s answer,
and it is due to his failure to see the difference between a norm-as-
sentence and a norm—as-entity. He believes that if he allows that there are
lii Introduction

logical relations between norms, this will mean that norms ‘generate’
new norms. And so he is forced to replace entailment by ‘correspond-
ence’ and claim that this relation holds between norms which are already
valid. But if the norms are already valid, there is no need to determine if
normative force has been transmitted from one to the other. If he made
the distinction between norms—as-sentences and norms-as-contingent-
entities, he would be able to allow that there are logical relations between
sentences and this would not result in any unwarranted generation of
new entities. Furthermore, this would avoid the unacceptable—and
circular—consequence that one has to wait until a norm has been posited
before being able to determine whether it is valid.

3.6. Summary
We may sum up the deve10pment of Kelsen’s theory of norms over the
last forty years of his life in the following way.
In RRl, the focus is on legal science: it is legal science which shapes
legal norms and creates a legal system free of all contradictions. As I said
earlier, it is a ‘Prolegomenon to any future legal science which claims to
be scientific’: it is intended to provide legal science with the correct
understanding of what law is and the necessary concepts to allow it to
perform its task.
In ATN, the function of normative science is strictly passive: it
describes the legal or moral norms created by legal or moral authorities.
It plays no part in shaping these norms and it has no power whatsoever
to modify them or to eliminate any contradictions in a normative system.
The focus is entirely on the authorities who produce the norms. In the
close to forty years which separate these two books, there has been a
shift from a Kantian view of reason and science to a Humean view:
whereas previously reason had an active role, it no longer has any
normative funcrion. This explains in part the comment Kelsen made to
H. L. A. Hart in the early sixties that Hume was the greatest philosopher
of all time.29
Parallel to this evolution in the role of normative science, there is an
increase in complexity in Kelsen’s view of legal norms. In the earlier
versions of the Pure Theory, there are only two kinds of legal norms,
general and individual, and general norms all have the same function,
namely that of ordering or directly that sanctions be performed. By the
end of his life, Kelsen recognized that there were other levels of norms in
a legal system (e.g. constitutional‘norms), and furthermore he allowed that
general norms could have four different functions. This increase in the
29 Professor Hart has confirmed this anecdote to me, and it is also recounted in Walter Ott,
‘Bericht von einem Besuch bei Prof. H. L. A. Hart in Oxford’, (1987) 18 Rec/atst/aeorie 538—41,
at539.
 Introduction liii

variety of norms is of course influenced by the evolution in his view of

the relative functions of normative authorities and normative science.
Since normative authorities occupy the centre of the stage in the later
works, the structure, functions, and individuation of norms depend on
the acts of authorities and not on the activity of normative science.
There is a similar evolution in Kelsen’s conception of the role of logic
in law and morality. In the earlier works, logic shapes the norms into a
consistent system of identically structured norms. In ATN, logic is
powerless 1n the normative realm, acts of will alone determine the state
of any normative system. It 18 even impossible to infer particular duties
from general norms: acts of will are required in order to effect the
transition. This development has obvious roots in Kelsen’s earlier works.
Reason always had a very subordinate role in Kelsen’s conception of the
normative realm, since judgments of absolute value were irrational. ATN
simply draws the final consequences of Kelsen’s earlier inclinations, and
expels reason completely from the normative realm. No wonder then
that observers such as Weinberger have called the final form of Kelsen’s
normative theory ‘normative irrationalism’.3O
Such is the evolution of Kelsen’s thought on the nature, functions, and
individuation of norms, as well as the applicability of logic to norms. But
these, of course, constitute only one set of issues within the Pure Theory
of Law. It is now the task of Kelsen scholars to determine whether his
views on other topics underwent a similar transformation.31
Michael Hartney
University of Western Ontario

30 Ota Weinberger, ‘Kelsens These von der Unanwendbarkeit logischer Regeln auf
Normen’, in Die Reine Rec/atsle/are in wissensc/aaftlic/aer Diskussion (Vienna: Manz, 1982) 108—
21; and ‘Logic and the Pure Theory of Law’, in Tur and Twining, eds., Essays on Kelsen,
pp.187—99.
31 A forthcoming study of mine will be devoted to the evolution of the Pure Theory of Law.
 Translator’s Note
THE present work is a translation of Kelsen’s Allgemeine Theorie der
Normen published in 1979 by Manz-Verlag of Vienna. It differs from the
original German edition on the following points:
1. Many very long paragraphs have been broken up into two or more
shorter paragraphs.
2. Internal references are not to pages, but to chapters (and sections
of chapters, where appropriate) or to endnotes.
3. Full bibliographical information about works qu0ted by Kelsen is
not given on the page where the work is quoted, but at the end of
the book (cf. sect. 1, ‘References’, below).
. All quotations are in English (cf. sect. 2, ‘Quotations’, below).
A number of errors in the German edition have been correCted
(usually with the approval of the German editors).
. An index has been provided.

1. References

Since Kelsen quotes from over 200 works, it would have cluttered up the
text to give full bibliographical information about each work on the page
where 1t is quoted. This information will therefore be found 1n a List of
References at the end of the book: pp. 430—9. Within the text, works are
referred to in one of the following ways:
1. For most works, only the author’s name and the year of publication
are mentioned: e.g. ‘Sigwart (1895)’.
2. In the case of works by philosophers such as Plato, Aristotle,
Aquinas, and Kant, the title (or a suitable abbreviation) is given
instead of the year of publication: e.g. ‘Plato, Republic’. The List of
References indicates the translation which was used, and in the case
of Kant, also the system of page references.
. In the case of works by Kelsen, both the title and the year of
publication are mentioned: e.g. ‘Kelsen, Reine Rechtsle/Jre (1960)’.

2. Quotations

In Allgemeine Theorie der Normerz, there are quotations in six

languages: Greek, Latin, German, English, French, and Italian. As
 Translator’s Note IV

the present translation is meant for an English-speaking audience,

it was thought useful that all quotations be in English. In the case
of works quoted by Kelsen in other languages, an existing English
translation was used where this existed; otherwise, the passages
were translated by the present translator. The original language of
any quoted passage can be determined by checking the List of
References at the end of the book:
1. If the title is given in English, without any indication that the work
is a translation (e. g. ‘Problems ofLegal Pkilosopky’), then Kelsen’s
quotations are in English.
2. If the title is given in English, with an indication that the work is a
translation (e.g. 772600) of Science, translation by Rolf George of
Wissenscbaftsle/Jre’), then Kelsen quotes from the original work,
and the English quotations in the present translation are from the
existing translation.
3. If the title is given only in a language other than English (e.g.
‘P/Jilosop/Jie des Rechts’), then Kelsen’s quotations in the original
language were rendered into English by the present translator.

3. Brackets

Generally speaking, bracketed words whose point is to clarify the

translation (e.g. the German original of a translated word) were
added by the translator. Otherwise, brackets are usually Kelsen’s.
In particular, brackets occurring within quotations are almost
always Kelsen’s: they enclose explanations or interjections of his
as he quotes the passage in question.

4. Translation of certain terms

A few comments are in order here, concerning the choice of English

terms to translate certain key expressions of Kelsen’s, especially when
they differ from those preferred by earlier translators.
1. 5011672. The normal translation of 5011672 in everyday usage is ‘ought’
(or ‘should’), and this is the practice previous translators of Kelsen
have followed. Now it is a central thesis of Kelsen’s philosophy of
norms that the term sollen has two very different uses: it can be
used to issue a command (in which case the sentence in which it
occurs is equivalent to an imperative and has no truth-value) and it
can also be used to report the existence of a command (in which
case the sentence is true or false). But this is not true of the English
lvi Translator’s Note

word ‘ought’, since it is not used to issue commands. And so it

would clearly be false to translate Kelsen’s explanations about the
two meanings of 5011672 as ‘The word “ought” has two meanings;
according to one of its meanings, it serves to command. . . ’
The best equivalent which can be found in English for this
double usage is the expression ‘you are to . . . ’. The sentence ‘You
are to leave’, when uttered by someone in authority, serves to
command (in a rather solemn way), and when uttered by someone
who is n0t in authority, serves to report that (for some reason or
other) the person is required to leave. The parallel with the two uses
of 5011672 is rather good, though not perfect.
Therefore, the term sollerz has been treated in one of three ways,
depending on the context:
. When Sollerz is being contrasted with Sein or ‘Is’, it has been
translated as ‘Ought’.
. When the word $011672 is mentioned rather than used, it has usually
been left untranslated, as in ‘The word 5011672 has two different uses
)

. When it is being used in a context where the double meaning is

relevant, it has been rendered as ‘you are to . . . ’ or ‘he is to . . .
9

This is the case in all norm-formulations and statements about

norms.
Finally, as ‘ought’ has no past participle, the German participle
gesollt has been translated as ‘obligatory’.
Rec/atmorm and Rechtssatz. Traditional German jurisprudence uses
the term Rechtssatz (literally: ‘legal sentence’ or ‘legal proposition’)
to refer to a legal norm (Rec/Jtsnorm) which has been ‘recon-
structed’ by legal science. (Indeed, the two terms are often used
interchangeably.) But Kelsen considers that a Rechtssatz is not a
norm, but rather a statement about a norm. In earlier translations of
Kelsen, Rec/atssatz was rendered by ‘rule of law’. This is unfortunate,
since the term ‘rule’ suggests a norm rather than a statement.
There exists an English term familiar to all jurists which captures
perfectly the meaning of Rec/Jtssatz, i.e. ‘proposition of law’. This
is how the term is translated here.
. Sirm and Bedeutung is. In everyday usage, the standard translation
of both Sinn and Bedeutung is ‘meaning’. In the present work,
Kelsen uses Bedeuturzg for the meaning of a word or sentence and
Simz for the meaning of an act or event. Since English——speaking
readers of Kelsen are now accuStomed to the expression ‘a norm is
the meaning of an act of will’, the word‘meaning’ was kept for
Sirm, and Bedeutn was translated as ‘signification’. On the other
 Translator’s Note lvii

hand, the verb [oedeuten has usuallybeen translated ‘to mean’, since
there is no German verb corresponding to Sirm.
. Rec/ots/eraft. The term Rechts/eraft (‘force of law’), when applied to
judicial decisions, means that the decision is final and can no longer
be appealed. While the term res judicata is narrower than
Reclats/eraft, it was still felt to be the easiest way of translating the
German term, especially as Kelsen makes use of the expression ‘the
principle of Rechts/eraft’, and the only idiomatic way of rendering
this is ‘the principle of res judicata’.
. Ideell Kelsen claims that norms do not exist in the same way as
empirical things, to express this, he says that norms are geistig or
ideell. These terms mean respectively‘pertaining to the spirit’ and
‘existing in the way of an idea’. In the present translation, geistig is
rendered as ‘mental’. Since Kelsen explicitly distinguishes ideell
from ideal, the English word ‘ideal’ could not be used for ideell. As
there 1s no other obvious English term available, it was decided to
keep the German word ideell 1n the translation.
Wollen. The verb wollerz means ‘to want’ , as in ‘to want something’
or ‘to want someone to do something’. Kelsen uses wollerz to refer
to any act of will, including one about one’s own behaviour (i.e.
deciding to do something), and he conceives of an act of will about
someone else’s behaviour as a kind of mental command. Many of
his expressions involving wollerz simply cannot be translated as
‘want’, and so recourse must be had to the more solemn verb ‘to
will’. It should therefore be borne in mind that in this translation
the verbs ‘to want’ and ‘to will’ both translate the same German
term wollerz, the choice depending on the context.
. Ermc'ic/Jtigerz. The verb ermc'ic/Jtigerz means ‘to confer a legal
power’ In The Pure Theory of Law (1967), it was rendered as ‘to
authorize’, but this suggests a permission rather than the conferral
of a legal power. It has been translated here as ‘to empower’ .
. Entsprecburzg. This has been translated as ‘correspondence’ when it
refers to a correlation between two similar things (e. g. two norms
or two sentences) and ‘agreement’ when it suggests the satisfaction
of a requirement (e.g. ‘an action agrees with a norm’).
 Foreword to the Original German
Edition
HANS KELSEN died on 19 April 1973. His heirs entrusted his papers to his
disciple and friend, Herr Rudolf A. Métall of Geneva. At the same time it
was decided that upon the latter’s death they would pass into the custody
and administration of the Hans Kelsen Institute.
I-Ierr Métall did not have the Opportunity of undertaking more than a
preliminary examination and ordering of the voluminous bundle of
papers. He died on 30 November 1975. The papers as Herr Métall had
classified them were transferred from Geneva to Vienna. Frau Grete
Métall was of particular assistance to the Institute in this, and we wish to
take this opportunity to express our thanks to her.
It had been known for a considerable time that in the last years of his
life I-Ians Kelsen was working mainly on the theory of norms. As it
appears from a statement he made to Rudolf Métall, Kelsen did not want
to be the only person to decide whether the results of his efforts should
be published. Hence, the decision devolved upon the Hans Kelsen
Institute.
This was a matter of considerable responsibility for the organs of the
Institute, in view of the interest with which the academic world awaited
Kelsen’s last work, as well as the high degree of scholarship of his earlier
works. They considered it their duty to determine whether the
manuscript which a thorough examination showed to be Kelsen’s most
recent version had reached a sufficient degree of completeness to warrant
publication as a work of Kelsen’s.
After examining the manuscript, the organs of the Institute—the
management, the board, and the trustees—decided on publication, and
entrusted the task to the Institute’s management.
It is incumbent on us to indicate, with the greatest possible degree of
precision, the condition of Kelsen’s manuscript and the extent of the
additions which are the work of the editors.
Kelsen’s manuscript had reached a high degree of completeness: it was
typewritten, though there were many additions, references, and rearrange-
ments, some typewritten and some handwritten. The mOSt important
thing lacking for _it to be complete was a systematic division of the
material. This had to be done by the editors; but it was possible to rely
on Kelsen’s indications. He had arranged the manuscript in fifty-eight
sections, to which he later added a few others. Furthermore, Kelsen had
provided for another—clearly preliminary—classification of the material.
 Foreword lix

This consisted in a list of topics describing, sometimes in headwords, the

problems discussed in a given passage. The editors attempted to derive
the subdivision of the work from this list of topics by Kelsen. The
division into chapters corresponds exactly to that in the manuscript; the
titles of the chapters were taken—where possible—from Kelsen’s own
indications. The subdivision of the chapters into sections with Roman
numerals is largely the work of the editors: the ‘keywords’ in Kelsen’s
list served as the criteria for subdividing the chapters, and largely
provided the titles for the sections. In this way; the editors tried _to
provide an arrangement which agreed as closely as possible with Kelsen’s
own intentions. '
The footnotes created a particular problem. Kelsen had numbered
them continuously by hand. But his intended system appeared to be
inappropriate for publication, for the following reasons. The many
footnotes in the manuscript were of quite different kinds: some of them
simply referred to a page of an already cited work or to some other part
of the manuscript; some of them were footnotes of the usual length and
content. And finally, some of them consisted of rather long discussions,
which sometimes took on the dimensions of separate essays: were they
to be published in the usual way at the foot of the page, they would not
only sometimes create the technical problem of overwhelming the main
text, but also make a continuous reading of the text difficult. The editors
therefore thought it helpful to treat each type of footnote differently.
The short footnotes simply referring to a book or article were inserted in
the text enclosed in parentheses; the relatively few fairly short footnotes
were placed at the foot of the relevant page in the usual manner and
flagged by asterisks.1 The large number of longer comments were
collected in a separate section appended to the main text. Numbers in the
main text refer to these notes at the end of the book. The reader should
be aware that it is possible to read the main text continuously without
referring to these notes, but also that they deserve to be studied on their
own.
The editors did not believe themselves entitled to avoid verifying all
the quotations, and the task was extremely long and at times difficult.
Since works from many countries and different periods were quoted,
libraries within Austria were not sufficient, to the task; many works had
to be obtained from foreign countries. Special thanks are due to the
correspondents of the Institute, who provided much assistance in this
work.
The verification of the footnotes resulted in many corrections.
In a very few cases, these efforts were not successful: there were three
cases where a missing reference could not be supplied, three cases of

I [Translator’s Note: In the present translation, the footnotes are flagged with numbers.]
1x Foreword

quotations of classical works where the accuracy of the page references

could not be checked because the translation Kelsen used was unavailable,
and finally two cases where in spite of all efforts a work could not be
found.
Whenever other changes were made in the text or the notes, they
concerned only ‘obvious mistakes’ (such as typing errors, etc.) and never
the subStance of the work.
After these technical considerations, the following comment should be
made about the content of the work. While we can tell that the
manuscript had attained a very high degree of technical completeness, we
cannot do so with respect to the content. We will never know whether,
and to what extent, Kelsen had any changes in mind. A critical
examination leads to the conclusion that the work exhibits a high degree
of intellectual thoroughness. Positions Kelsen had previously adopted
are sometimes repeated, but are also often improved on and given a more
thorough justification, there are many discussions of views differing
from his own, especially in the notes. But Kelsen also changed his mind
on a series of issues. This is itself a reason for publishing the work, since
scholars ought to be made familiar with the final state of Kelsen’s
thought on the theory of norms, whatever position is eventually
recognized as being the correCt one. Consequently, certain deficiencies
which might be objected to in the manuscript (such as the repetitions)
have to be accepted.
Kurt Ringhofer
Robert Walter
 1
Narms
I. The Signification of the Word ‘Norm’

The word ‘norm’ comes from the Latin norma, and has been adopted in
German to refer primarily, though not exclusively, to a command, a
prescription, an order. Nevertheless commanding is not the only
function of norms: norms also empower, permit, and derogate (cf.
below, ch. 25).

II. Different Kinds of Norms: Norms of Law, Morality, and Logic—

Norms as the Object of Cognition: Legal Science, Ethics, Logic

People speak of norms of morality and law as prescriptions concerning

people’s behaviour towards each other, and in so doing they mean to
express the idea that what we call ‘morality’ or ‘law’ consists of norms, is
an aggregate or system of norms. People also speak of‘norms ’of logic as
prescriptions for thinking. But it is questionable whether the principles
of logic (such as the principle of contradiction and the rules of inference)
are norms and whether logic as a science has norms as its object (as ethics
and legal science do). Also, in German there is no word for the norms
which form the object of this norm—describing science other than ‘logic’
(which is the name of the science), as there is for the norms which form
the object of ethics—‘morality’—and legal science—‘law’. People who
assume that there are norms for thinking (norms of logic), just as there are
norms of morality and norms of law, use the word ‘logic’ to refer both to
the science and to its object. Or—as is usually the case—they assume
that the science of logic itself, instead of describing the norms of
thought—as ethics describes the norms of morality and legal science the
norms of law—posits them, and so issues prescriptions commanding that
we think in a certain way, an assumption which is difficult to reconcile
with the nature of a science (which is one of cognition of the object
presented to it). But as we shall see later, there is also a tendency to
identify the science of ethics with its object—morality—and legal
science with its object—law—and to speak of them as ‘normative’
sciences in the sense of sciences which posit norms or issue prescriptions,
instead of merely describing the norms presented to them as their objeCt.
2 Norms ch. 1
III. The Norm as the Meaning of an Act of Will

When it refers to a prescription or command, the word ‘norm’ means

that something is to be or is to happen. Its linguistic expression is an
imperative or a sollerz-sentence. The act whose meaning is that something
is commanded or prescribed is an act of will (NOTE 1). That which is
commanded or prescribed is primarily particular human behaviour.
When someone commands or prescribes, he wi'lls that something ought
to happen. The Ought—the norm—is the meaning of a willing or act of
will,1 and—if the norm is a prescription or command—it is the meaning
of an act directed to the behaviour of anOther person, an act whose
meaning is that another person (or persons) is to behave in a certain way.

IV. Ought as a Basic Category

As Georg Simmel has already pointed out (1892), Ought is a ‘basic

category’ just like Is, and we can no more give a definition of Ought than
we can describe what Being 1s (NOTE 2). The act of will whose meaning is
the norm is the act which is metaphorically said to ‘create’ the norm: it is
the act which posits the norm, the norm-positing act. But a norm can be
created not only by an act intentionally directed to that effect, but also
by custom, that is, by the fact that people are accustomed to behaving in a
certain way. We shall discuss this later.

V. The Validity of a Norm

Whether it is by an act of positing or by custom, norms become valid.

When we say ‘A norm is valid’ we mean that a norm exists. ‘Validity’ is
the specific existence of a norm, an existence different from that of a
natural fact, and in particular from that of the fact by which it is created.
A norm decrees an Ought. If we say this of every norm, then the word
‘ought’ is being used in a broader sense than in ordinary speech. Usually
we say that a person ‘ought’ to behave in a certain way only if a valid
norm prescribes or commands that he do so, while we say of the person
whom a norm empowers to behave in a certain way that he ‘can’ do so,
and of the person whom a normative order permits to behave in a certain
way that he ‘may’ do so. A norm which repeals or restricts the validity of

1 Cf. Eisler (1914: 77): ‘. . . but Ought always leads back to a will as source; that which is
obligatory always appears as posited by a will and is ultimately jusdfied only by reference to
some possible goal of a will without which the demand is not truly grounded or rational or
justified’.
§ VII Norms 3

another norm—a derogating norm—decrees a certain behaviour not to

be obligatory (as opposed to a norm which decrees the omission of a
certain‘behaviour to be obligatory). If such a derogating norm is valid,
then this means that a behaviour decreed to be obligatory by another
norm is no longer obligatory. If we say that every norm decrees an
‘ought’, then the term includes all possible normative functions:
commanding, empowering, permitting, and derogating.

VI. Observance, Violation, and Application of Norms

A norm which commands a certain behaviour—and only such a norm—

can be observed or violated. But a norm can not only be observed (or not
observed, i.e. violated), but also applied. A moral norm is applied when
behaviour in accordance with the norm is approved of and behaviour
violating the norm is disapproved of. A legal norm is applied when the
prescribed sanction—punishment or execution of judgment—is directed
at behaviour contrary to the norm. The validity of a norm—i. e. its
specific existence—consists in that the norm is to be observed, and if not
observed, then applied. Its effectiveness consists in the fact that it is
actually observed, and when not observed, then applied. The validity and
the effeCtiveness of a norm must be clearly distinguished. In order to
exist—i.e. to be valid—a norm must be posited by an act of will. No
norm without a norm-positing act of will; or as this principle is usually
phrased: No3imperative without an imperator, no command without a
commander.

VII. ‘Norm’ and ‘Normal’

Even though the adjective ‘normal’ contains the root ‘norm’, it does not
refer to an Ought but to an Is. Something is ‘normal’ if in fact it occurs
regularly. When people use the term ‘normal’ to signify an Ought, they
presuppose that there is a valid norm to the effeCt that what usually
happens ought to happen, and in particular that people ought to behave
as they are used to behaving. It is significant in this connection that the
words Pflic/ot (duty) and pflegerz (to be accustomed to) are cognates. It is
a fallacy to infer from the fact that something in fact regularly happens,
that it also ought to happen. No Ought follows logically from an Is.

2 According to Kfilpe (1923: 120 f.), a norm has ‘validity’ only in so far as it is observed; in
itself it has only ‘binding force’ and not validity. The terminologically correct words for what
Kfilpe understands by ‘validity’ and ‘binding force’ are ‘effectiveness’ and ‘validity’ respectively.
3 Cf. Dubislav (1937: 335), where he speaks of the ‘impossible concept of an imperative
without an imperator’.
4 Norms ch. 1

Only a valid norm can decree that what regularly happens also ought to
happen (NOTE 3).
It is natural for religiously inclined people to assume that what
regularly happens ought to happen. Since whatever happens does so in
virtue of God’s will, whatever regularly happens must be considered to
be willed by God and therefore to be what ought to happen, i. e. ‘good’.
And so when something happens which 18 judged not to be good—such
as a poor harvest or a crime—consistency requires that it also be
considered as having been willed by God, but 1t is then interpreted as an
exception to the rule, to what is ‘normal’. But the assumption that what
regularly happens ought to happen is often incorrect. A positive moral
order can prohibit behaviour even though it regularly occurs; and a
positive legal order can exclude the application of customary law, whose
validity rests on the assumption we are discussing. Nevertheless, it has to
be conceded that a norm loses its validity if in fact it is no longer observed
or, when n0t observed, it is no longer applied. That is the problem of the
relation between the validity of a norm—which is an Ought—and the
effectiveness of that norm—which is an Is—of which we shall say more
later.

VIII. The Positivity of Norms

A norm posited by an act of will occurring in reality is a positive norm.

From the point of view of ethical and legal positivism, the only norms
considered to be objects of cognition are positive norms, that 15, norms
posited by acts of will, and indeed, by human acts of will.
Norms posited by human acts of will are arbitrary, in the genuine
signification of the word: that is, they can decree any behaviour
whatsoever to be obligatory (with one exception to be explained later: cf.
below, ch. 23). The assumption that there must be norms which do not
originate in arbitrary choice leads to the concept of a norm which is not
the meaning of a human act of will: in other words, a norm which is
not the meaning of any ‘act’ at all, or which is the meaning of an act of
thought, or, if it is the meaning of an act of will, of a supra-human
(especially divine) rather than human act of will.

IX. The Norms of So-called Natural Law

A. Will in Nature.
Some people believe that norms of morality or law do not have to be
posited by any act in order to be valid. For, they believe, there are norms
§ IX Norms 5

which are immediately valid or claim to be immediately valid since they

are given in reality or ‘nature’, that is, they are immanent in nature.
Hence their validity is no more ‘arbitrary’ than that of the causal laws of
nature. Their validity is not conditional upon the will of the subjects
whose behaviour they regulate, nor upon the will of any norm-positing
subject. Their validity is—in this sense—as objective as that of the law
that metals expand when heated.
The nature in which these norms are immanent is either Nature in
general, i.e. the totality of reality, or a particular nature, i.e. that of man.
Such is the assumption of so-called Natural Law theory, which is
opposed to ethical and legal positivism (NOTE 4). Consciously or not,
this theory has a metaphysico-theological basis.4 Nature is a complex of
facts and factual occurrences, and cognition directed to this object can
only assert that something is and not that something ought to be. Even
when we have found that under certain conditions certain consequences
always or usually occur in fact, in particular that certain living beings
behave in the same way under certain conditions, it cannot be asserted
that under certain conditions the observed consequences ought or ought
not to occur, that these living beings ought or ought not to behave as
they actually do or at least as they are usually accustomed to behave. As
was stressed before, from the fact that something is or is not, it does not
follow that something ought or ought not to be (NOTE 5).

B. God’s Will in Nature.

Nature can be considered to be a source of norms only if we assume that
there is a will immanent in Nature to the effect that things, especially
living beings, are to behave in certain ways. Since the norms of Natural
Law decree a certain human behaviour to be obligatory, this will must be
directed to human behaviour. But since Nature itself is not endowed
with any will, it must be the will of God present in Nature (which is his
creation). The theologians are right on this point. For instance, Victor
Cathrein argues for Natural Law as the necessary foundation of positive
law in the following way: ‘Who gives human society or human superiors
the right to impose obligations on us?’ and the answer can only be (so he
says): ‘Nature itself, or better, the author of Nature’ (1924: i. 565).
Similarly Gottlieb Sbhngen characterizes Natural Law as ‘the law
inscribed in human nature by God’ (1962: 24 f.). This is the meta-
physico-theological presupposition without which no Natural Law
theory is possible, and with which Natural Law theory succeeds or fails.
The ultimate source of Natural Law is God’s will. The norms of Natural
Law are the meaning of his acts of will. If God’s nature is understood to

4 Cf. my article ‘The Foundation of the Theory of Natural Law’ (1973).

6 Norms ch. 1

be reason (i. e. thought), then the norms of Natural Law are the meaning
of his mm of thought or are contained 1n his thought. But they must also
be the meaning of his acts of will or contained in his will. This 18 possible
since thought and will coincide 1n God. By knowing what 18 good and
bad, God wills that the good ought to be and that the bad ought not to
be, as we see already in the myth of the Tree of Knowledge (Genesis 3).

C. Natural Law as the Law ofReason; Merely Thought Norms.

If the ‘nature’ in which the norms of Natural Law are immanent is the
nature of man, and if we consider that man’s nature—unlike that of
animals—consists in human reason, then Natural Law appears as the
Law ofReason. Since reason is the faculty of thought and knowledge, the
norms of the Law of Reason present themselves as the meaning of acts of
thought: they are not willed norms but thought norms. Now there is
such a thing as a merely thought norm (as opposed to a positive norm
posited by a real am of will); but it is not the meaning of an act of
thought but rather of an act of will which does not occur in reality but is
imagined or thought of in the same way as we can imagine or think of
anything which is possible but does not exist in reality. I can think of a
norm which has not actually been posited by any authority, i. e. which is
not the meaning of any real act of will occurring in reality. But I can
think of such a norm only as the meaning of an act of will which I thin/e
of at the same time. I can think of a norm as if 1t were posited by some
authority, even though it has not actually been posited, and there is in
fact no act of will whose meaning it is. The principle ‘No norm without a
norm-positing authority’ remains valid, even if the authority’s an of will
of which the merely thought norm is the meaning is fictitious. A merely
thought norm is the meaning of a fictitious act of will, unlike a positive
norm, which is the meaning of a real aCt of will. In general terms: No
Ought without a will (even if it is only fictitious) (NOTE 6).

D. The Concept ofPractical Reason.

Since human reason is a faculty of knowledge and thought, it cannot
posit the norms of so-called Natural Law. Reason enables us to know
norms posited by the acts of will of an authority; it enables us to create
concepts but not norms (NOTE 7). Reason as moral legislator is the
central concept of Kant’s ethics. But for Kant this reason is practical
reason: like divine reason, it is both thought and will, and—if we look
closer—it is divine reason in man, it is God’s reason in which man
participates as a being created in the likeness of God (cf. below, ch. 18).
The theory of the Law of Reason tries to understand norms as the
meaning of acts of thought rather than of acts of will: it too rests on
§x Norms 7

metaphysico-theological speculation and succeeds or fails with it (NOTE

8).

X. Individual and General Norms

A norm can be individual or general. A norm is individual if it decrees a

once-only individually specified instance of behaviour to be obligatory.
For example, the judicial decision that Schulze the thief is to be
imprisoned for one year. A norm is general if it decrees some generally
specified behaviour to be obligatory. For instance, the norm that all
thieves are to be imprisoned. The individual or general character of a
norm does not depend on whether it is addressed to an individually
specified person or to a number of individually specified persons or to a
class of persons (i.e. a number of persons specified generally rather than
individually). Even a norm decreeing that the behaviour of a single
individually specified person is obligatory can be a general norm, if the
behaviour it decrees to be obligatory is not a once—only individually
specified instance of behaviour of this person but rather some generally
specified behaviour of his. Thus if, for instance, a father empowered by a
valid moral order to address commands to his children orders his son
Paul to go to church every Sunday or not to lie, then even though these
norms are addressed to a single individually specified individual, they are
general norms posited in virtue of the authority conferred by the valid
moral order and binding on their addressee. If an authority empowered
to do so by a valid moral order addresses a command to a number of
individually specified subjects, and commands only one individually
specified instance of behaviour—for instance, if a father orders his three
sons, Paul, Hugo, and Friedrich, to offer their best wishes to their teacher
Maier on the occasion of his fiftieth birthday—then there are as many
individual norms as there are addressees (NOTE 9).
What is obligatory in a norm (or commanded in an imperative) is a
certain behaviour. This can be a once-only individually specified instance
of behaviour of one or more individually specified persons, but it can
also be an indefinite number of actions or omissions of one individually
specified person or of a definite class of persons. That 1s the decisive
difference (NOTE 10).
A general norm is called an ought-rule (NOTE 11). There is no
justification for restricting the term ‘norm’ to general norms, for
considering generality to be an essential characteristic of a norm (NOTE
12). For the essence of a norm is that it decrees behaviour to be
obligatory. This can be done either generally or individually. When a
norm commands a certain behaviour, it is commonly called a ‘command’
(NOTE 13). But not every command is a norm. We shall consider later the
8 Norms ch. 1

question of when a command is a norm (cf. below, ch. 8). The belief that
a norm has to be general is connected with the previously mentioned fact
that in ordinary speech the term ‘norm’ is also used for an is-rule and in
such a case it is indeed general. As was pointed out before, when some
event is characterized as ‘normal’, this usually does not mean that it is as
it ought to be, i.e. that it agrees with an ought-rule, but rather that the
event is something which regularly tends to occur in faCt.

XI. Norms and Norm-addressees

To say that a norm is ‘directed’ to a person simply means that it is the

bebuviour of a person, human behaviour, which is obligatory. The norm
is not concerned with the human being as such in all that he is and does,
but only with a certain human behaviour. A norm ‘is directed to a person’
in that it decrees a certain behaviour of one person or of a definite or
indefinite number of persons to be obligatory. The term ‘norm-
addressee’ is simply a way of saying that the behaviour decreed to be
obligatory in the norm is human behaviour, the behaviour of a human
being.
 2
Norms and Mearls—End Relations:
Ought and Mast— Teleological
(Causal) and Normative
Necessity—Norms and Eads
An is-rule can take the form of a causal law to the effect that something
must occur under certain conditions. The word ‘must’ expresses causal
necessity. If we suppose that ‘ought’ also expresses necessity, then a clear
distinction has to be made between causal and normative necessity. Since
the term ‘norm’ can be used in ordinary speech to refer not only to an
ought-rule but also to an is-rule, some people fail to distinguish clearly
between the two kinds of necessity and use ‘ought’ and ‘must’
synonymously, a most misleading practice.
This is particularly so when people suppose that the question ‘What
ought I to doP’ can be answered with the well-known saying ‘Who wills
the end, must will the means’, that is, when people identify normative
with teleological necessity, with the necessity involved in the relation
between means and end.1 The saying ‘Who wills the end, must will the
means’ is the answer to the question ‘What mast I do in order to realize a
certain endP’, and this is a different question from ‘What oag/at I to doP’
The first question is about the appropriate means to an end, while the
second question (in which the action is not specified in terms of some
end, in terms of ‘in order to . . .’) is about the validity of a norm. And the
answer to this second question (which concerns an Ought) can only be a
sollerz-sentence (a sollerz—sentence which is a statement about the validity
of a norm, as we shall see later). If someone asks ‘How ought I to act
towards my enemyP’, his question is not about the appropriate means to
realize an end he 15 pursuing, as when he asks ‘What must I do to expand
a metalP’ The answer to this question is ‘You must heat the metal.’ Or
more correctly: ‘A metal must be heated if one wants it to expand.’ This
answer refers to the causal conneCtion between heating and expanding,
and the word ‘must’ expresses this causal necessity, and not logical
necessity as some people assume when they think that willing the means

1 Drews (1928: 10): ‘Norms . . . are prescriptions or rules which muSt be observed if a certain
goal is to be reached.’
10 Norms and Means—End Relations ch. 2

is a logical consequence of willing the end. One can will the end without
willing the means, for instance because bringing about the means is
immoral or illegal (NOTE 14). A possible answer to the question ‘How
ought I to act towards my enemy?’ is ‘You ought to love your enemy.’
This answer states that the norm ‘Love your enemies’ posited by Jesus 18
valid. It does not state that loving one’s enemy is the appropriate means
to some end. The fact that a certain behaviour 15 the appropriate means to
some end does n0t mean that this behaviour is obligatory, i.e.
prescribed by a valid norm of morality or law. The fact that
administering poison is the appropriate means of realizing one’s
intention of causing the death of a person does not mean that one ought
to administer the poison, that one ought to poison the other person
(NOTE 15). The most one could say is ‘If a person ought to be killed—for
instance, in fulfilment of a death-sentence—one ought to give him
poison’ (as in the case of Socrates condemned to death). But, as we shall
see later, from the fact that the end is obligatory it does not follow
logically that the means is obligatory, any more than from the fact that
the end is willed it follows logically that the means is willed.
The relation of means to end is a relation between a cause and its
effect, a causal relation. Something is the means to an end if it can be a
cause bringing about that which is aimed for, i.e. that which is wanted as
an end. Teleological necessity is causal necessity, a must and not an
ought; and ‘must’ is a completely different meaning from ‘ought’. The
answer to the question ‘What ought I to do?’ is given by ethics when it
states that a certain moral norm is valid; the answer to the question
‘What must I do to realize a certain end?’ is given by technology when it
states that a certain causal connection obtains (NOTE 16).
People think they can justify equating normative with teleological
necessity by saying ‘If you want your behaviour to be morally good, it
must agree with a moral norm which prescribes this behaviour’, in the
belief that this sentence is of the same kind as ‘Whoever wants a metal
ball to expand must heat it.’ Just as the heating of the metal ball is the
means to realize the goal of having it expand—and it is the means to that
end because it is the cause of that effect—similarly, behaving in
accordance with a moral norm is supposed to be the means of achieving
the end that one’s behaviour is good. Only the means—end relation in the
sentence ‘If you want your behaviour to be morally good, it must agree
with a norm prescribing this behaviour’ is merely apparent. The
behaviour which agrees with the moral norm is not the cause of the
behaviour’s being good, as the heating of the metal ball causes it to
expand. The sentence in question merely states that an action’s being
good consists in its agreeing with a moral norm, that its moral value is
identical with its agreeing with the norm. In the sentence ‘Whoever
wants a metal ball to expand must heat it’, the word ‘must’ expresses
 Norms and Means—End Relations 11

causal necessity. It is the relation between two facts, one of which, the
means, is the cause of the other, the end. The end is an effect which is
wanted, but not necessarily one which is obligatory. But the relation
between two facts which stand to each Other as means and end is not an
Ought. Ought is not a relation between two elements, either between a
norm and behaviour agreeing with this norm, or between an act of
positing a norm and behaviour agreeing with the norm. Ought is a norm,
that is, the meaning of an act.
Nor is it possible to equate the normative necessity of the Ought of a
norm with the teleological necessity consisting in the relation between
means and end by saying that a norm has an end, or pursues an end, or
even that it is an end (NOTE 17). Something is an ‘end’ only relative to
something else which is a ‘means’. A norm which decrees a certain
behaviour to be obligatory is not concerned with any means in relation
to which the obligatory behaviour is an end, or with any end in relation
to which the obligatory behaviour is a means. And there is even less
justification for saying that the norm—which is the meaning of a norm-
positing act of will—is an end. An end is an effect which is wanted. Only
the person positing the norm by an act of will—and not the norm
itself—can aim for something or pursue an end, for only a person can
want something; a norm does not ‘want’ anything. The person positing
the norm can be pursuing an end in issuing the norm. The norm-positing
act—which must be distinguished from the norm which is the meaning
of the act—can have an end; it can be the means which (as cause) causally
brings about behaviour in agreement with the norm (as effeCt), that is,
the realization of the end of the norm-positing act. The meaning of the
norm-positing act (which is an act of will) is an Ought, the norm. But the
end of the norm-positing act is not this Ought, but an Is, namely, the
actually occurring behaviour which agrees with the norm, i.e. which is
similar to, but not identical with, the behaviour appearing as obligatory
in the norm. 2 Between the norm-positing act (which is an Is) and the act
of actually behaving in accordance with the norm (which is also an Is)
there can exist a means—end (i. e. a causal) relation. And such a relation
does exist if the norm-positing person posits the norm with the goal that
it be followed, if he uses the norm-positing act as a means of bringing
about (as effect) behaviour in accordance with the norm. Indeed, this is
usually the case, but not necessarily so. The person positing a norm may
know that his norm-positing act cannot have this effect, that behaviour
in accordance with the norm he posited will be brought about by other
causes. A person can give an order even though he knows that it will not,
and cannot, be obeyed, but does so because he is, or believes himself to
be, under an obligation to give the order. But even if the norm-positing

2 On this point, cf. the discussion of the modally indifferent substrate, below, ch. 16.
12 Norms and Means—End Relations ch. 2
act serves as a means of bringing about behaviour in accordance with the
norm, the relation between this means and its end is not the Ought of the
norm
Consequently, the judgment that something 18 the‘ apprOpriate’ means
of bringing about a certain end 18 not an objective value-judgment, if by
‘objective value--judgment’ we understand a statement that something—
especially, a certain behaviour—has objective value, that is, is as it ought
to be according to a moral or legal norm. Consequently, we cannot say
that the end ‘justifies’ the apprOpriate means, if ‘justification’ has a moral
or legal meaning. The fact that something is the ‘appropriate’ means to a
certain end means only that it has the capacity, as a cause, of bringing
about a certain effect. Mixing poison into someone 3 food is an
appropriate means of bringing about his death. But since this end 18
immoral and illegal, the means cannot have moral or legal value: the end
cannot justify the means. Even if the end is morally and legally good, it
does not follow that the means which brings about this end is itself
morally or legally good. It is morally good to ‘free the city from the
tyrant’, but killing the tyrant is murder and so is morally and legally bad
(NOTE 18).
 3
Karzt’s Hypothetical Imperatives
—Imperatives of ‘Skill’—
Hypothetical arzcl Categorical
Imperatives
Unfortunately the idea that the relation of means to end is an Ought
receives support from Kant s concept of the ‘hypothetical 1mperative’.
By an ‘imperative’ Kant understands the linguistic expression of a
‘command. ‘The conception of an objective principle, so far as it
constrains a will, is a command (of reason), and the formula of this
command is called an imperative. All imperatives are expressed by an
“ought” ’ (iv. 413, Foundations of the Metaphysics of Morals). Kant does
distinguish between a ‘command’ and the ‘imperative’ which is its
‘formula’ (i.e. its linguistic expression), but in the sentence ‘All
imperatives are expressed by an “ought”’, he uses ‘imperative’ as a
synonym for ‘command’, and thereby admits that a command can be
expressed linguistically nOt only in an imperative sentence, but also in a
sollerz-sentence. In fact Kant himself formulates moral commands not
only in the form of imperative sentences, but also in that of swollen—
sentences; for instance, when he gives the following sentences as an
example of an ‘imperative’: ‘Thou shalt [sollst] not make a false promise’
(iv. 419).
All imperatives command either hypothetically or categorically. The former present
the practical necessity of a possible action as a means to achieving something else
which one desires (or which one may possibly desire). The categorical imperative
would be one which presented an action as of itself objectively necessary, without
regard to any other end. (iv. 414) . . . [All imperatives] say that it would be good to
do or to refrain from doing something. (iv. 413) . . . If the action is good only as a
means to something else, the imperative is hypothetical; but if it is thought of as a
good in itself, and hence as necessary in a will which of itself conforms to reason as
the principle of this will, the imperative is categorical. (iv. 414)
Thus a hypothetical imperative is one which commands a certain act or
omission as a means to an end, while a categorical imperative commands
a certain act or omission as an end and not as a means to an end. Both
imperatives express an Ought; and an act or omission is good whether it
is commanded categorically or hypothetically, i.e. as an end or as a
14 Kant’s Hypothetical Imperatives ch. 3
means to an end. In the former case, it is good in itself; in the latter, it is
good for something else. ‘The hypothetical imperative, therefore, says
only that the action is good to some purpose, possible or actual’ (iv. 414),
that is, good as a means to an end.
But according to Kant these hypothetical imperatives are not
imperatives of morality, but ‘imperatives of skill’.
We can think of that which is possible through the mere powers of some rational
being as a possible purpose of any will. As a consequence, the principles of action, in
so far as they are thought of as necessary to attain a possible purpose which can be
achieved by them, are in reality infinitely numerous. All sciences have some practical
part which consists of problems of some end which is possible for us and of
imperatives as to how it can be reached. These can therefore generally be called
imperatives of skill. (iv. 415)
Hence it follows that according to Kant the sentence ‘If you want a metal
to expand, you must heat it’——which is a sentence of applied science or
technology—is a hypothetical imperative: it expresses an Ought and this
Ought expresses the ‘practical necessity’ which obtains in a means—end
relation; and this in spite of the fact that Kant is certainly aware that a
means—end relation is a cause—effect relation, as is clear from the
sentences quoted above. But if the means—end relation is a cause—effect
relation, then the ‘necessity’ in this relation is causal: it is a must, and
hence something completely different from the normative necessity of
Ought, which is the meaning of an imperative. But Kant ignores this
distinction. The claim that something is obligatory as a means to an end
can make sense—if at all—only if the end itself is obligatory. But that is
exactly what Kant denies. For he says, right after the preceding
quotation:
Whether the end is reasonable and good is nOt in question at all, for the question is
only of what must be done in order to attain it. The precepts to be followed by a
physician in order to cure his patient and by a poisoner in order to bring about
certain death are of equal value in so far as each does that which will perfectly
accomplish his purpose. (iv. 415)
If poisoning the person has the effect of killing him, then it has the same
‘value as the act of a physician who administers a drug whose effect 15 to
cure the patient. If poisoning someone when one wants to kill him has
value, then it is something which ought to be (when this condition
obtains), just like administering a drug when one wants to cure him in
this way. According to Kant, the following hypothetical imperatives are
then valid: ‘If you want to kill a person, you ought to poison him’ and ‘If
you want to cure a person, you ought to administer this drug.’
According to Kant, these imperatives of skill differ from imperatives of
morality in being hypothetical. For he contrasts an imperative of
morality with an ‘imperative which commands the willing of the means
 Kant’s Hypothetical Imperatives 15
to him who wills the end’ (iv. 419), and says of the imperative of
morality that ‘it is not hypothetical, and thus the objectively conceived
necessity cannot be supported by any presupposition’ (iv. 419). The
falsity of this is already clear from the fact that imperatives of morality
can also be hypothetical. In a moral order which allows capital
punishment only for murder, there is a norm which reads ‘You are to kill
a person only if he commits murder.’ The condition need not be that one
wants an end which can be brought about by the means. The condition
need not be that the person to whom the imperative of morality is
addressed wants something; the imperative need not read ‘If you
want . . . do such and such.’ The condition can even be something which
the addressee does not want, as in the example above or in the norm ‘If
your child lies, scold him.’ What Kant calls an imperative of skill is an
imperative whose condition is that the addressee wants something. But
this need not be a hypothetical imperative; and Kant ignores this fact.
Furthermore, what he calls an ‘imperative of skill’ is not an imperative at
all, in other words, it is not a norm, an Ought, but a must (NOTE. 19).
 4
N0 Logical Relation hetween
Willing the End and Willing the
Means

I. The Principle ‘Whoever Wills the End Must Will the Means’

Kant’s imperative of skill is the rule ‘Whoever wills the end must will the
means’:
How an imperative of skill is possible requires no particular discussion. Whoever
wills the end, so far as reason has decisive influence on his action, wills also the
indispensably necessary means to it that lie in his power. This proposition, in what
concerns the will, is analytical; for, in willing an object as my effect, my causality as
an acting cause, i.e. the use of the means, is already thought, and the imperative
derives the concept of necessary actions to this end from the concept of willing this
end. (iv. 417, Foundations ofthe Metaphysics ofMorals)
Kant’s formulation of the rule is ‘Whoever wills the end wills also the
indispensably necessary means necessary to it.’ But the restriction ‘so far
as reason has decisive influence on his action’ means that his point is
that whoever wills the end ought to will the necessary means. For the
reason of which he is speaking is practical reason as normative legislator.
If practical reason does not influence a person’s behaviour, that is, if he
does not follow the requirement that when he wills the end he ought to
will the means, then a person will will the end without willing the means
thereto. On the other hand, Kant admits that the relation between means
and end is a causal relation. But he considers the relation between willing
the end and willing the means to be an ought-relation, since he considers
willing the means to be required by reason when the end is willed. Hence
he charaCterizes the traditional means—end rule as an ‘imperative’ of skill.
The ‘ought’ in this imperative must be a logical ought since it is reason
which requires that the means be willed, and logical principles, according
to Kant, are requirements of reason, norms prescribing ‘how we ought to
think’.1 Kant thus sees in the means—end rule hoth causal and normative
necessity (NOTE 20).
1 Cf. Kant, Logic (p. 16): ‘In logic, however, the question is not one of contingent but of
necessary rules, not how we think, but how we ought to think . . . In logic we do not want to
know how the understanding is and thinks, and how it hitherto has proceeded in thinking, but
how it ought to proceed in thinking. Logic shall teach us the right use of the understanding, i.e.
the one that agrees with itself.’
§ 11 Willing the End and Willing the Means 17

But the relation between willing the end and willing the means—the
relation asserted in the means—end rule—cannot be a logical necessity,
since no logical relation can obtain between two real states of affairs such
as two acts of will. The principles of logic are concerned not with real
acts of thought—these are the object of psychology and not logic—but
with their ideell contents, with the meaning of the acts of thought, that
is, with what is thought; and consequently, a fortiori they are not
concerned with acts of will. The only kind of necessity which could
obtain in the relation between the two acts of will is causal necessity. But
in fact it does not, since a person can in fact will the end without willing
the appropriate means, for instance when he is unaware of the
appropriate means. But even if he 18 aware of the means, he may not want
to make use of it for some reason or other, for example, because he
considers it immoral or illegal. If this is the only means of bringing about
the end, then admittedly it is—as we say—irrational to continue to will
the end, but human beings can act irrationally, and indeed often do.
If the necessity in the relation between willing the end and willing the
means were a logical necessity, it could only be the necessity involved in
an inference. The well-known rule Si vis pacem, para bellam (‘If you
want peace, prepare for war’) is the abbreviated form of the following
syllogism:
1. You want peace
2. Preparing for war causes peace
3. Therefore, you ought to prepare for war.
But this is not a valid syllogism. If sentence 1 is a statement about the fact
of an act of will (an Is), and sentence 2 is a statement about the causal
relation between two facts (Is), then the validity of the norm (an Ought)
cannot follow logically from the truth of these two statements. But even
if the rule read ‘If you ought to want peace, prepare for war’ (rather than
‘If you want peace . . .’), in other words, if the major premiss were a
norm presupposed to be valid (rather than a statement about a fact), this
would still not be a valid syllogism:
1. You ought to want peace
2. Preparing for war causes peace
3. You ought to prepare for war.

II. The Principle ‘The End Justifies the Means’

This syllogism is implicit in the well-known rule ‘The end justifies the
means.’ This rule is not identical with ‘Whoever wills the end wills—or
must will, or ought to will—the means’ (NOTE 21). The difference is that
in one case the end is wanted, while in the other it is obligatory. But the
end cannot ‘justify’ the means, even if the end itself is ‘justified’, i.e.
18 Willing the End and Willing the Means ch. 4
obligatory. The means to a justified end can be quite unjustified. Even when
the end is justified, there is no logically valid syllogism. There would be
if the validity of the norm ‘You ought to prepare for war’ could be
derived logically from the validity of th: norm ‘You ought to want
peace’ in conjunction with the truth of the statement ‘Preparing for war
causes peace.’ But that is not the case, as we shall see later. For the
validity of a norm is conditional upon the aCt of will by which it is
posited: the norm ‘You ought to prepare for war’ is valid only if it is the
meaning of an act of will, that is, of a norm-positing act, and this act (an
Is) cannot be derived logically from the validity of the norm ‘You ought
to want peace’ in conjunction with the truth of the statement ‘Preparing
for war causes peace. ’The norm ‘You ought to want peace’ can be
posited and be valid, and the statement ‘Preparing for war causes peace’
can be true, and yet the norm ‘You ought to prepare for war’ can fail to
be valid if it is not the meaning of an act of will, if such a norm was never
posited, if it is not a positive norm. This act of will cannot be obtained by
way of a logical operation, i.e. an act of thong/0t.
The statement about a necessary relation between willing the end and
willing the means is true only if it means that the relation between the
means as cause and the end as effect is one of causal necessity (cf.
Endnote 16).
 5
The General Norms ofPositive
Morality and Positive Law are
always Hypothetical
The difference between categorical and hypothetical norms is the
difference between norms which decree that a certain behaviour is
obligatory unconditionally and those which decree that a certain
behaviour 15 obligatory only under certain conditions. This distinction
applies both to individual and to general norms (NOTE 22). An example
of an individual norm which is categorical is the command of a. father to
his son: ‘Paul, shut the door!’ An example of an individual norm which is
hypothetical is the father’s command ‘If you go out today, take an
overcoat!’ A judge can decide ‘Schulze the thief is to be imprisoned’; he
can also decide ‘If Korner does n0t pay 1,000 to Maier within two weeks,
judgment is to be executed against Korner’s assets.’ General norms are
often formulated categorically, for example, ‘Love your enemies’ or
‘Everyone is to love his enemies.’ But the following general norms are
hypothetical: ‘If someone borrows money, he is to repay it at the agreed
time’ and ‘If someone commits theft, he is to be punished.’
In all these cases, the behaviour decreed to be obligatory in the norm is
formulated either conditionally or unconditionally. But even an order (in
the sense of an individual norm) or a general norm with an unconditional
formulation—for instance, the individual norm ‘Paul, shut the door!’ or
the general norm ‘Love your enemies’—is valid only conditionally, since
the statement ‘A (general or individual) norm is valid’ means that it
ought to be observed. The father’s order is valid only on the condition
that the door is not already shut; if it is already shut, the order (in the
sense of an individual norm) cannot be observed. And we cannot say that
Paul, in failing to shut the door which is already shut, ‘violates’ his
father’s order. In this instance, his father’s words do not represent a valid
order; in other words, the order is pointless. The categorically
formulated individual legal norm in a judicial decision ‘Schulze the thief
is to be imprisoned’ is valid only on the condition that Schulze can be
imprisoned, that is, that the norm can be observed. It loses its validity if
Schulze the thief dies after the decision has been handed down but before
he can be imprisoned, so that the individual norm can no longer be
observed. And we cannot say that the norm is ‘violated’ in such a case. If
20 General Norms are always Hypothetical ch. 5
the individual norm in a judicial decision is formulated categorically, it is
because the norm-positing authority presupposes that the condition that
it can be observed or violated 1s satisfied.
Even the categorically formulated general norm ‘Love your enemies’ is
valid only conditionally, that is, on the condition that a person has an
enemy. It is not valid if a person has no enemy, and so its correct
formulation is: ‘If someone has an enemy, he is to love him.’ Even a
categorically formulated general norm such as ‘Everyone is to believe in
the existence of God’ has a hypothetical meaning (NOTE 23). Its meaning
is not that everyone is to believe in the existence of God continuously
and in all circumstances. Such a norm would prescribe something
impossible. Belief in the existence of God is relevant only when certain
specific questions are raised, such as the question of the origin of this
world or the ultimate cause of events, and above all, the question of
absolute justice. The condition under which any norm—individual or
general—is valid is the sum of the circumstances in which it can be
observed or violated. A norm which decrees as obligatory something
which must occur in the natural course of events, such as the norm
‘Human beings are to die’ (which cannot be violated), or something
which cannot occur in the natural course of events, such as the norm
‘Human beings are to live forever’ (which cannot be observed), is
pointless and is therefore not considered to be valid.
Even norms of omission, which are usually formulated categorically—
such as ‘No one is to kill’, ‘No one is to steal’, ‘No one is to lie’, etc.—
are hypothetical. For just as it is possible to kill only under very specific
conditions (e. g. only when one lives 1n society with other human beings),
so it is possible to refrain from killing only under very specific
conditions. And the same is true of the other commandments of
omission. For a norm is ‘valid’ only in so far as it can be observed or
violated. The possibility of observance or violation is a condition for a
norm’s validity.
Furthermore, in an actual society, even the basic prohibitions, such as
‘No one is to kill’, ‘No one is to lie’, ‘No one is to steal’ (i.e. deprive
someone of his property against his will or without his knowledge), can
be valid only with certain restrictions. Positive social orders must always
stipulate the conditions under which it is not forbidden to kill (e. g.
capital punishment, war, self-defence), or to take property (e. g. to
deprive an insane person of a weapon, or as a sanction), or to lie (e. g. so
doctors can avoid causing distress to the sick, or in wartime in order to
deceive the enemy). This shows that all the general norms of a positive
social order, including general norms of omission, can prescribe a certain
behaviour only under very specific conditions.
This raises the question: in a norm which decrees a certain behaviour
to be obligatory under certain conditions, what exactly is subject to the
 General Norms are always Hypothetical 21
condition? Is it the behaviour decreed to be obligatory or is it the Ought
of this behaviour (i.e. its being obligatory)? It is not—as might appear to
be the case—only the behaviour which is conditional, but also the Ought
(i.e. its being obligatory). For the question is: under which conditions
one ought to behave in the way specified in the norm, under which
conditions the behaviour is obligatory, under which conditions the
Ought obtains and the norm is valid, i.e. ought to be observed (or
applied, as the case may be). In the norm ‘If someone makes a promise,
he ought to keep it’, it is not merely the keeping-of—promises which is
conditional, but the ought-to-keep promises. A can demand of B that he
ought to marry his sister because he promised to do so. But B, even
though he is ready to marry her, can deny that he ought to-do so, on the
grounds that he never promised A to do so, i.e. that the condition for this
Ought does not obtain. Prosecutor A can demand that judge B punish C,
who (in A’s Opinion) committed theft; but the judge, who is willing to
punish thieves, can reject the prosecutor’s demand because the ‘ought-
to-punish-C’ is valid for the judge only if it his opinion that. C has
committed theft, and he is of the opinion that he has not. He can decide:
‘C is not to be punished.’ What is lacking in this case is the condition for
the ought—to-punish. When a norm decrees that a certain behaviour is
obligatory under a certain condition—when a conditional behaviour
is obligatory—then it is also the Ought (i.e. the behaviour’s being
obligatory) which is conditional. But even if a norm does not decree a
certain behaviour to be obligatory conditionally, the validity of the norm
is still conditional. All norms are valid merely conditionally.
For every conditional norm, there is a statement about the occurrence
of the act of which the conditional norm is the meaning, such as ‘God
commanded that if someone makes a promise he is to keep it’ or ‘The
legislator has commanded that if someone commits theft he is to be
punished.’ These statements are true even if no one makes a promise or
commits theft. For it is not the act of which the norm is the meaning
which is subject to a condition, but the meaning of the act: the ought-to-
keep-promises, the ought-to-be-punished (NOTE 24).
 6
Natural Laws and Social (Mand
and Legal) Laws
I. Causal and Normative Linking of Condition and Consequence

Every general norm which connects a certain consequence to a certain

condition represents a relation between two states of affairs which can be
described by the statement that under a certain condition a certain
consequence is to occur. In the sentence with which natural science
describes the connection between heat and the expansion of a metal (‘If a
metal is heated, it expands’), the linking of condition and consequence is
that of cause and effect. It is a causal linking; the necessity of the
connection is a must. According to our experience hitherto, it is
impossible for a metal to be heated without expanding, though it is
possible of course that our experience might change and that our
description of the causal linking might have to be changed. This is so
even when—as is often the case in modern physics—the necessity of the
causal linking is not absolute but only relative, i.e. is only probable. In
summary then, the linking of cause and effect is described by the
statement ‘IfA is, then B is (or will be).’
When ethics describes a general norm of morality by means of the
sentence ‘If someone is in need, one is to help him’ or when legal science
describes a general legal norm by means of the sentence ‘If someone
borrows money, he is to repay it’, then the linking of condition and
consequence clearly does not have the character of causal necessity. It is
expressed by ‘ought’ and not ‘must’. It is a normative and not a causal
necessity. It is possible for someone to be in need and not receive any
help, or to borrow money and not repay it.

II. The Sanctions ofMorality and Law as Guarantees of the Effectiveness

of these Normative Orders

This normative necessity in the relation between condition and

consequence is to be found also in the linking produced by a general legal
norm which prescribes a coercive act, a so-called sanction, as a
consequence in the event that a certain behaviour occurs (a behaviour
characterized as illegal). The validity of this norm is described by legal
§ III Natural Laws and Social Laws 23
science by means of the sentence ‘If someone commits an illegal act, then
a coercive act—punishment or execution of judgment—is to be inflicted
on him or on someone standing in a certain relation to him.’ The law is
essentially a coercive order. It prescribes a certain behaviour by
connecting to the opposite behaviour the being-obligatory of a coercive
act as consequence. I call the sentence by which legal science describes
this linking of illegal act and consequence-of-illegality a proposition of
laW, as opposed to the legal norm which is what this sentence describes.1
This proposition of law is the specific legal law.
But morality 1s also a sanction-prescribing normative order; for when
morality prescribes a certain behaviour, 1t also prescribes that people are
to react in a certain way to the opposite—the immoral—behaviour.
Immoral behaviour is to be disapproved of by the members of the
community. They are to react to this behaviour with acts of disapproval
such as criticism, utterances of contempt, and so on. Morality differs
from law in two ways. First, the reactions it prescribes—its sanctions—
are not coercive acts as are those of law: they are not to be carried out by
the use of physical force when they meet with opposition. Secondly, the
sanctions of morality are reactions not only to behaviour contrary to the
norms (as in the case of legal sanctions) but also to behaviour in
accordance with the norms. Just as immoral behaviour is to be
disapproved of by the members of the community, moral behaviour is to
be approved of by them, with acts of praise, utterances of esteem, and so
on. We shall return later to the difference between law and morality (cf.
chs. 25. III and 35).

III. The Principle of Retribution

Just as the sentence of legal science which describes the validity of a

general legal norm connecting the specific sanction of law to a certain
behaviour—the proposition of law—can be called a legal law, so the
sentence of ethics Which describes the validity of a general moral norm
connecting the specific sanction of morality to a certain behaviour can be
called a moral law (NOTE 25). Both are applications of the Principle of
Retribution, the principle that behaviour contrary to a social order is to
be punished—evil is to be done to those who act badly—and behaviour
in accordance with the social order is to be rewarded—good is to be
done to those who act well. In a legal law, only one part of the Principle
of Retribution is applied, while both parts are applied in a moral law. As
applications of the Principle of Retribution, legal and moral laws are the
characteristic social laws (as opposed to natural laws). (NOTE 26).
1 Cf. my Pure Theory oczw (1967) 57—8.
 7
Causality and Imputation
I. The Principle of Imputation

In the linking of a condition and a sanCtion brought about by a general

moral or legal norm and described by ethics and legal science in moral
and legal laws, we encounter a principle which is different from the
principle of causality expressed in the natural laws formulated by the
natural sciences. It is different, but analogous. I have suggested calling it
the Principle of Imputation.1

II. Causality and Imputation as Two Different Kinds of Functional

Connection

As has just been pointed out, causality and imputation are two different
kinds of functional connection, two different ways in which two states of
affairs can be connected together as condition and consequence. The
difference between the two is this: imputation (i.e. the relation between a
certain behaviour as condition and a sanction as consequence, described
by a moral or legal law) is produced by an act of will whose meaning is a
norm, while causality (i.e. the relation between cause and effect
described by a natural law) is independent of any such intervention.
Another difference is that every concrete cause has to be considered as
the effect of some other cause, and every concrete effect as the cause of
some other effect, and so—by the very nature of causality—the chain of
cause and effect is endless in both directions. In the case of imputation,
the situation is completely different. The condition to which a sanction is
imputed as a consequence in a moral or legal law—for example,a
person’s sacrificing his life for his country (to which is imputed the
honouring of his memory), sin (to which penance is imputed), crime (to
which punishment is imputed)—is not necessarily a consequence which
has to be imputed to some other condition. And the consequences (such
as the honouring of a person’s memory, penance, and punishment,
which are imputed to the sacrifice of one’s life for one’s country, to sin,
and to crime respectively) need 'not necessarily be conditions to which
I I have explained this distinction in greater detail in Vergeltung and Kausalitiit (1941),
then in Society and Nature (1943), the second edition of The Pure Theory of Law (1967), and
‘Causality and Imputation’ (1950).
§ III Causality and Imputation 25
other consequences are imputed. The imputation series does not have an
unlimited number of members as the causal series does: basically it has
only two members. If we say that a certain consequence is imputed to a
certain condition (such as a reward to a meritorious act or punishment to
a crime), then the condition (i.e. the human behaviour which constitutes
the meritorious act or the crime) is the endpoint of imputation. In a
causal series, on the other hand, there is nothing like an endpoint. Belief
in a first cause, a prima Comm, the analogue of the endpoint of
imputation, is incompatible with the idea of causality expressed in the
laws of classical physics. The idea of a first cause, which as the creative
will of God or human free will plays an important part in religious
metaphysics, is characteristic of a way of thinking in which the principle
of causality is not distinguished from the principle of imputation.

III. Natural Science and Social Science

The duality of causality and imputation is the basis of the duality of the
natural sciences (such as physics, chemistry, biology, and psychology)
and the normative sciences (such as ethics and legal science). It is an
expression of the fundamental logical duality of Is and Ought, which we
shall be discussing later (cf. ch. 16).
 8
Norm—positing Acts: Content and
Description—Norms: Validity and
Content

I. Acts and Meanings of Acts

Since, as is clear from what was said before, it is necessary to distinguish

between the act of commanding or prescribing or norm-positing (which
is an act of will and hence is an event, i.e. an Is) and the command or
prescription or norm (which is the meaning of this act, and so is an
Oag/at), it is more correct to say ‘a norm is a meaning’ than ‘a norm has a
meaning’. The act of will (which is an Is) ‘has’ the meaning of an Ought.
This Ought is the norm (NOTE 27).

II. Norms and Statements

The expression ‘A norm “says’’that something 15 to be or is to happen’

is permissible as long as it does not lead to confusing a norm with a
statement. For a norm is not a statement and—as we shall explain in
greater detail—must be clearly distinguished from a statement, especially
a statement about a norm. For a statement is the meaning of an act of
thought, while a norm (as was indicated) is the meaning of an act of will
intentionally directed to a certain human behaviour.

III. Willing and Wishing

Rationally we can only will the behaviour of a being who understands

the meaning of willing and can behave in accordance with it. This is what
distinguishes willing from wishing, which can concern any other event. I
§V Norm—positing Acts and Norms 27
can wish that it should rain tomorrow, but I cannot ‘will’ it since I
cannot cause it to rain by expressing my will.

IV. Commands and Norms: The Empowered Command

Whoever posits a norm, i.e. commands or prescribes a certain behaviour,

wills that a person (or persons) is to behave in a certain way. Such is the
meaning of the act of will we call a ‘command’. But it is not every
command which is a prescription or norm, according to ordinary usage.
If a highwayman orders me to hand over my money, admittedly the
meaning of his act of will is that I am to hand it over, but his command is
not interpreted as a ‘prescription’ or ‘norm’. It is only the meaning of an
aCt of commanding which is qualified in a certain way which is a valid
norm, namely an act of commanding empowered by a norm of a positive
moral or legal order.

V. The Subjective and Objective Meaning of the Act of Commanding

We can also explain this difference in terms of the following sentence:

‘The addressee of the command is to behave in the way specified in the
command.’ If the-command is not empowered, then this is merely the
subjective meaning of the act of commanding, that is, it is the meaning
the aCt of commanding has from the point of view of the commander and
not from the point of View of the addressee or any third party. Should
the addressee fail to comply with the command, his behaviour will not be
judged immoral or illegal or as the ‘violation’ of a norm. Only an
empowered command also has the objective meaning of Ought, that is,
only an empowered command is a norm binding on the addressee,
obligating him to act in the prescribed way, unlike a command which is
not empowered and which is not binding on the addressee (NOTE 28).
This is the only way in which the command of a highwayman can be
distinguished from that of a moral or legal authority. Generally: not
every Ought which is the meaning of an act of will is a binding norm. For
instance, I can will ‘Everyone is to marry upon reaching a certain age.’
That is not a binding norm for there is no norm of a positive moral or
legal order which empowers me to posit such a norm. The Ought in this
case is only the subjective meaning of my act of will, and not its objective
meaning. It is only when the Ought has an objective meaning, and so
expresses a command, that there exists a duty (i. e. a binding norm). This
‘being-binding’ or ‘imposing-a-duty’ is an essential function of a
commanding norm. The objectivity of Ought (i.e. the fact that the
meaning of an empowered act of will directed to the behaviour of
28 Norm-positing Acts and Norms ch. 8
another person is a norm) also appears in the fact that the norm is valid,
that the Ought exists as a meaning even when the act of will whose
meaning it is has long since ceased to exist, while the Ought which is
merely the subjective meaning of a command which is not empowered
ceases to exist—i.e. is no longer valid as a norm—as soon as the act of
will of which it is the meaning is over (NOTES 29, 30).

VI. Validity as the IdeeII Existence of a Norm

‘To be valid’ in its specificvobjective—meaning signifies ‘ought-to-be-

observed’. This ‘validity’ of a norm is its characteristic, ideell, existence.
That a norm ‘is valid’ means that it exists. A norm which is n0t ‘valid’ is
not a norm since it is n0t an existing norm.
A norm is valid for certain individuals, for a certain area, and for a
certain time. These are its personal, territorial, and temporal spheres of
validity. They can be limited or unlimited. This is especially true of the
personal sphere of validity. Consequently it is incorrect to think that a
moral norm must by its very nature be valid for all human beings. As far
as the temporal sphere of validity is concerned, norms are usually valid
only for the future, that is, they concern states of affairs which occur
only after the norm becomes valid. But norms, especially legal norms
(which link a particular legal consequence to a particular state of affairs)
can also be valid with retroactive effect (as we say): they can concern
states of affairs which have already taken place before the general norm
became valid. Indeed, this is always necessarily the case with the
individual norm which represents a judicial decision. But even the
approval or disapproval of a concrete behaviour of a certain individual,
which results from the application of a general moral norm and which
also implies an individual norm, is retroactive since it concerns a state of
affairs which took place before the individual norm became valid.

VII. Every Norm Presupposes Two Persons: The Norm-Positor and

the Norm-Addressee

A command, especially a command called a norm, presupposes two

human beings: one who commands (or gives the command or posits the
norm) and one to whom the command is addressed (or who is
commanded to act or whose behaviour is prescribed or decreed to be
obligatory). The one who commands (or who posits a norm) wills
something; the one who is commanded (or whose behaviour is decreed
to be obligatory in a norm) oug/ot to do something. The linguistic
§ 1x Norm—positing Acts and Norms 29
expression of a command is an imperative. There is a valid principle
concerning commands which is usually formulated as ‘No imperative
without an imperator’. But there 1s also a valid principle about the person
to whom the command is addressed: ‘No imperative without an
imperatus , i.e. a person (or persons) to whom the imperative is
addressed. Generally: No norm without a norm-positing authority, and
no norm without an addressee.

VIII. The Object of Norms: Human Behaviour

As was mentioned before, the expression ‘A norm is directed to a

human being’ simply means that the norm decrees the behaviour of one
human being or of a definite or indefinite number of human beings—and
nothing else—to be obligatory. The norm is not concerned with a
human being in all that he is and does; it is only with a certain human
behaviour that it is concerned when it decrees it to be obligatory. The so—
called ‘addressee’ is simply an inseparable component of that which is
decreed to be obligatory in a norm, i.e. the personal element of the
behaviour subject to the norm (NOTE 31).
It is only human behaviour which is decreed to be obligatory in
present--day norms of morality and law, not the behaviour of animals,
plants, or inanimate objeCts. The 1mperatives by which the creative acts of
God are represented in Genesis—‘And God said, Let there be light . . .
And God said, Let there be a firmament in the midst of the waters . . .
And God said, Let the earth bring forth grass and herb’—seem to be
imperatives addressed to no one, for the addressees to which they are
linguistically addressed do not yet exist. But the meaning of the divine
acts is n0t a command expressed linguistically in an imperative; the
meaning of these acts is creation. God’s sentences quoted in Genesis are
magical words by means of which what they say is produced from
nothing.

IX. The Norms of an Autonomous Morality: Ego and Alter Ego

The idea of an autonomous morality seems to contradict the claim that a

norm presupposes two human beings. For the norms of an autonomous
morality are addressed by an individual to himself. But this is possible
only if human consciousness—as in an act of introspection—divides into
two personalities, an ego and an alter ego, one of which posits norms
addressed to the other, that is, decrees that the behaviour of the other is
obligatory. The norm—positing ego wills that the alter ego is to behave in
3O Norm-positing Acts and Norms ch. 8
a certain way. It is an incorrect description of the process of self-
obligation in an autonomous morality to say that the person who acts as
his own legislator (who posits a norm prescribing a certain behaviour of
his) wills to act in a certain way. As his own legislator, what he wills is
not to act in a certain way, but that he is to act in a certain way.
 9
Analysis of the Act of Will, of its
Mcaning and of its Expression
I. Willing One’s Own Behaviour and Willing Directed to the Behaviour
of Others: Ought as the Meaning of Willing Directed to the
Behaviour of Others

There is a difference between willing one’s own behaviour and willing

that someone else is to behave in a certain way (i.e. a willing directed to
the behaviour of someone else, even if this other person is oneself as
addressee of a self-imposed norm).
We should not understand a willing directed to one’s own behaviour
as the impulse which leads to the stimulation of a muscle, the impulse
which is the immediate cause of muscular contraction in a voluntary
movement. The difference between a voluntary movement—cg. of an
arm or a leg—and an involuntary movement—e.g. of the heart—is
something of which we are immediately conscious. Some people think
that a voluntary bodily movement is caused by an immediately preceding
act of will. But no such act of will can be discovered by introspection.
That which immediately precedes the movement of my arm is a
physiological process. The willing which is directed to the movement of
my own arm—the mental process—and the physiological process which
leads to the contraCtion of the muscles of my arm are two different
processes. Also, the claim that there is a causal relation between mental
and physical processes is highly problematic. No satisfactory answer has
ever been given to the question of the nature of this relation, and there is
perhaps no answer at all to this question.
But it is of no importance for the present inquiry. For even if we could
assume that there existed an act of will which was the immediate cause of
the movement of the muscles, it is not this act of will which is being
considered here. For the act of will whose meaning is a command (or
norm) is one of those acts of will discoverable by introspection which are
not the immediate cause of the movement of the muscles, but are
directed to a certain behaviour (of oneself or of someone else). When,
after considerable hesitation, I decide to do something—cg. fly to
Europe from America—or when faced with the choice of behaving in
one of two ways—cg. voting for candidate A or candidate B in a
presidential election—I decide to vote for candidate A, there occurs in
32 Analysis of the Act of Will ch. 9
me something which I can discover by introspection and which is
different from thinking and feeling, and which for that very reason I call
‘willing’. If I give an order to someone that he is to behave in a certain
way, I can discover by introspection that there occurs in me something
which is similar to what occurs when I decide to fly to EurOpe or to vote
for candidate A, namely an act of will. Nevertheless, there is a difference:
in the latter two cases my willing is directed to my own behaviour, and in
the former case to the behaviour of someone else (NOTE 32). I will to
behave in a certain way, I will to do or to refrain from doing something;
or I will that someone else is to behave in a certain way. Only a willing
directed to the behaviour of someone else (including one’s alter ego) has
the meaning of an Ought, i.e. of an order, a command, a prescription, a
norm. The meaning of my act of will directed to someone else’s
behaviour (the meaning of an act of commanding) can be described only
by the word ‘Ought’, since the behaviour of the other person to whom
my willing is directed, the behaviour which—metaphorically speaking—
is the content of my will, the behaviour of the other person which I will,
is not thenexisting behaviour of that person. I ‘will’ this behaviour as
obligatory, and it is obligatory (it ought to be) before it is, i.e. before the
other person complies with my command. This behaviour can be, but it
can also not be: the other person can comply or fail to comply with
my command. This behaviour appears in my command not in the mode
ofIs but in the mode Oaglot (cf. below, ch. 16).

II. The Meaning of an Act: What One Intends by the Act—The

Meaning of an Act of Will and the Meaning of an Act of Thought

The meaning of my act of will directed to the behaviour of another

person is that which I intend in expressing my act of will. An act of will
directed to the behaviour of another person is usually expressed
linguistically, i.e. in spoken or written words. Someone who issues a
command intends something. He expects the other person to understand
this something. By his command he intends that the other person is to
behave in a certain way. That is the meaning of his act of will.
The commander must previously represent to himself how the other
person is to behave (the behaviour of the other person). He must know
what he wills, what he wants of the other person, what behaviour of the
other person he wills. The knowing which precedes the willing, and
which is the meaning of an act of thought, is different from what is
intended by the act of will.1
’ Sigwart (1889: 120—2): ‘The first moment [in the process of willing] is the representation of
a future state of affairs which . . . presents itself as a possible object of willing.’ After this
representation, there follows ‘the decision of the will by which I set the future object as my
goal, I consciously affirm it as the object of my will’.
§ III Analysis of the Act of Will 33
The commander expects the command-addressee to understand the
command, i.e. to understand the meaning of the utterance as a command,
i.e. to know:
1. that he is to behave in a certain way, and
2. how he is to behave, i.e. what he is to do or avoid doing.
The former is the meaning, the latter the content of the act of will
representing a command.
The meaning of the act of thought which precedes the act of will
representing an act of commanding is not a statement. If the speaker’s
goal in performing an act of thought is a statement, then the meaning of
this statement is to be true; and if the statement is addressed to another
person, its meaning is to be considered true by this person. And just as
the meaning of an act of commanding has to be distinguished from its
content, so the meaning of a statement must be distinguished from its
content, from that which is stated.

III. The Signification of a Linguistic Expression: What it ‘DenOtes’,

its Object

Commands and statements are expressed in language. Language consists

of words, and words have a signification, that is, they denote something,
they refer to something. This ‘something’, the object which the word
denotes or to which it refers, can be quite varied. For example, it can be
an individually specified thing which can be perceived by the senses,
such as the human being ‘Plato’ or the planet ‘Venus’. In such a case, the
word is a proper noun. The ‘something’ can be specified only generally,
i.e. it can be a class of things, a concept such as ‘human being’ or ‘animal’,
a situation, a property, a relation such as the word ‘between’. The
‘something’ which the word signifies or denotes or to which it refers, the
object, can be real—i.e. perceptible with the senses—and so be
considered by us as existing in an external world; but it can also be
imagined by us, it can be the product of our faculty of imagination,
without our considering it to be an object existing in an external world
(NOTE33).
There are certain words which seem to signify without denoting or
referring to something, such as ‘and’, ‘but’, ‘is’, ‘not’. But even they
signify something because they denote or refer to something. The word
‘and’ denotes, or refers to, a conjunction of something yet to be said with
something already said; the word ‘but’ denotes, or refers to, the
announcement of something to be said which stands in opposition to
what has already been said; the word ‘is’ denotes, or refers to, the linking
of a thing with a property, or the existence of a thing; the word ‘not’
signifies that the saying to which it is connected is false, is an error: i.e. it
characterizes a saying as false, it qualifies it as an error. The ‘something’
34 Analysis of the Act of Will ch. 9
which a linguistic expression signifies—that which it denotes or refers
to—can be called its object, provided the word ‘object’ denotes
everything ionic/0 a word can signify.
Furthermore, a word can have two different significations. For
example, the word ‘Venus’ signifies a goddess and also a heavenly body.
The same thing can have two or more properties. The planet ‘Venus’ is
the first star one sees after sunset and the last before sunrise.
Consequently, it is called both ‘the evening star’ and ‘the morning Star’.
These two expressions have different significations in so far as they
denote two different properties. But in so far as they denote the thing
which has these two properties, they have the same signification, for they
both denOte the planet Venus (NOTE 34).
Signifying is the characteristic function of a linguistic expression:
denoting-a—n--object, referring—to-an——object. But 1n ordinary speech, the
word Bedeutung—like many nouns in -‘ung’ derived from verbs—is
used not only to denote a particular activity but also an object connected
with this activity. We say that a linguistic expression signifies something,
and by this we intend to say that it denotes or refers to something. But
we also call what it denotes or refers to, its ‘signification’. This usage is
misleading. The signification of a linguistic expression cannot be the
object it denotes or refers to (NOTE 35). If we say that the signification of
the word ‘moon’ is the planet which revolves around the earth, then we
are saying that this planet which can be perceived with our senses is a
‘signification’.

IV. The Signification of a Linguistic Expression and the Understanding

of this Signification

But a signification cannot be perceived with the senses; it can only be

understood, i.e. grasped mentally (NOTE 36). This understanding is an
inner process which must be distinguished from the perception of the
expression, i.e. hearing or seeing the expression (NOTE 37). For the
addressee can hear or see (i.e. read) the spoken or written word, the
spoken or written sentence, without understanding the signification of
the word or the meaning of the sentence. If the addressee does not
understand the signification of a word or the meaning of a sentence—
that is, of what I say to him—he can ask me ‘What does this word
signify?’ or ‘What do you intend to say by your utterance? What is its
meaning? Is it the meaning of an act of thought, i.e. a statement, or the
meaning of an act of will, i.e. a command? Express this meaning in other
words, so that I may understand it.’ It is only when the addressee of a
command understands the meaning of the expression addressed to him
that he can—subjectively—comply with the command. The willing, the
intending on the part of the commander or norm-positor and the
§ IV Analysis of the Act of Will 35
understanding on the part of the addressee of the command or norm are
essentially inner processes which occur when a command is issued or a
norm posited and a command or norm is obeyed (NOTE 38). When I
order another person to behave 1n a certain way, I can discover by
introspeCtion an inner process which is a willing directed to the
behaviour of someone else; similarly, when I receive a command, I can
discover by introspection that I perceive inwardly the utterance of
another person addressed to me, that is, that I bear certain spoken
words, that I see a gesture or written or printed characters, and that
furthermore there occurs in me something different from this hearing or
seeing, namely, I understand the utterance I hear or see, and I understand
it as a command and not as a statement, i.e. I grasp the meaning
expressed 1n it, the meaning that I am to behave in a certain way.
It is by noticing the difference between the situation where I
understand the utterance I hear or see and that where I do not understand
it or do not understand it completely, that I n0tice within myself the
occurrence of an inner process of understanding which is different from
hearing or seeing the utterance addressed to me. Someone speaks to me
in a language unknown to me: I hear the words but I do not understand
their signification, and consequently I do not understand the meaning
the other person expresses in what he says. I do not know if what he says
is a statement, a question, or a command. Or on a sheet of paper I see
written or printed words in a language unknown to me. I certainly
understand the letters which form the words, i.e. I know which sounds
they denote. I can therefore convert the words into sounds. I can read
what I see. But I do not understand the signification of the individual
words and consequently do not understand the meaning of the text made
up of these words. (If this language makes use of letters different from
those I know (e.g. Chinese), I cannot even read what is written or
printed, i.e. convert it into sounds.)
Another example: I am with another person in a room. There is an
object on a table. The other person points to the object and says to me:
‘Apple’. I hear this word and I also understand it, that is, I know what
kind of object this word denotes and I know that it denotes the object on
the table. But I do not understand if the person’s intention in uttering
this word is to make the statement ‘This is an apple’ or to issue a
command to me, ‘Fetch me this apple.’ By uttering the word ‘apple’ he
could intend either one. From the fact that one linguistic expression can
have many different significations, it follows necessarily that one must
distinguish between the linguistic expression and its meaning. If I can
intend different things with the same expression—if this expression can
have different meaning-contents—there must exist an inner process of
intending which is different from the process of speaking (which
produces sounds or letters).
Thus, if in the case of a command issued or received by oneself, the
36 Analysis of the Act of Will ch. 9
inner processes of Willing and understanding can be discovered by
introspection and are essential for a correct description of what occurred,
then—relying on the arguments Which support the possibility of an
objective psychology—we can, indeed we must, make use of them in the
description of a command given by one person and received and obeyed
by another.
 10
Acts of Commanding, Commands,
and Ohservance of Commands
I. The Analysis of the Act of Commanding: The Inner Processes

Any attempt to describe a command and its observance without referring

to inner processes in the commander and the addressee means that we
have to give up completely the concepts of ‘command’ and ‘observance’,
at least in so far as we are talking of suhjective observance, i.e. when the
addressee understands the utterance addressed to him as a command and
acts in accordance with it because he wants to aCt in accordance with it,
i.e. because the motive for his behaviour is his mental representation of
the command.

II. Command and Observance as Causally Connected

If we try to describe the state of affairs in question without any reference

to inner processes, then we are forced to explain the relation between a
command and its observance merely as a causal connection between one
person’s linguistic (or other) utterance and another person’s outward
behaviour of reacting to the utterance. We can assume that there is a
causal relation between two facts (A and B) only if we have observed that
a fact of the same leind as A is regularly followed by a fact of the same
leind as B. We can assume that the expansion of a certain stretch of
metal rail was caused by the heat of the sun—i.e. that this metallic
object’s reaction to being heated by the sun’s rays is to expand—only if
we have observed that metals regularly expand when heated, i.e. react to
heat by expanding. If no reference is made to inner processes in the
commander and the addressee, we can assume that there exists a causal
connection between a linguistic utterance called a command and
behaviour called compliance with this command, only if we have
observed that behaviour of the same leind as the concrete behaviour we
call ‘compliance’ regularly follows an utterance of the same leind as the
concrete utterance we call a ‘command’. It is doubtful whether such
regularity can be observed since in many cases commands are not
obeyed. But whether it is possible or not, the observation of the external
events already involves a certain interpretation of the observed facts.
38 Acts of Commanding and Observance ch. 10
III. Observance as a Specific Reaction to a Command

One fact, that of the linguistic utterance, is interpreted as the uttering of

a ‘command’ and the other, the behaviour which consists in a reaction to
the utterance, as the ‘observance’ of this command. But how can we
distinguish a linguistic utterance as a command from other utterances
which are not called commands, and behaviour as observance of a
command from other instances of the same behaviour which are not
called observance of a command? What is the similarity between two
utterances which is the reason for calling them both ‘commands’? What
is the similarity between two reactions which is the reason for calling
them both ‘observance’? Knowing what these differences and similarities
are must precede any description of a concrete state of affairs as a causal
connection between a command and its observance, just as one must
distinguish between heating and other processes between metals and
other objects before being able to assert that there exists a causal
connection between heating by the sun’s rays and expansion of a certain
stretch of metal rail.
In countless cases, we can observe that a person utters something to
an0ther person, and the latter reacts to the utterance in some way, and
yet we do not descrihe the first utterance as a command or the second
utterance as compliance with the command. For example, a father says to
his son ‘You are a good boy’ and the son reaCts with a gesture. The father
says to him ‘You are a bad boy’ and the son reacts with another gesture.
The father says to him ‘Did you go to school today?’ and the son reacts
by saying ‘Yes’ or ‘No’ or by walking off without saying anything. Or a
mother reads a story to her daughter and the child reacts to the story by
beginning to cry. In all these cases, we do not call the first person’s
utterance a ‘command’ or the second person’s reaction ‘compliance’.
Now, as was pointed out earlier, the same utterance can be a command
or something other than a command. For instance, a father says to his
son ‘You’ll go to school tomorrow.’ This can be a mere statement, the
prediction of a future event; but it can also be a command. The sentence
‘Thieves are punished with imprisonment’ is linguistically a statement.
But in a Criminal Code this sentence has the meaning of a command,
that is, ‘Thieves are to be punished with imprisonment.’ The difference
between an utterance with the meaning of a command and an utterance
which does not have the meaning of a command therefore cannot reside
in the utterance itself, and likewise the similarity between two utterances
which makes them both commands cannot reside in the utterances
themselves. Therefore:
1. a distinCtion must be made between a linguistic expression and the
meaning of the expression, and between perceiving an expression
and understanding it;
§ IV Acts of Commanding and Observance 39
2. the function of uttering (i.e. producing sounds or written
symbols) and the function of giving a certain meaning to that
utterance are two different functions.

IV. A Situation Involving Command and Observance Cannot Be

Described without Referring to Internal Processes

A father can say to his son ‘You’ll go to school tomorrow’ and on one
occasion be making a statement and on another occasion be issuing a
command, but the activity of his larynx, tongue, and lips is the same in
both cases. If he produces two different meanings, there must exist a
second function different from that of speaking: a process of thought or
will which gives the linguistic expression its specific meaning as a
statement or command.
How can the cases in which a person’s utterance is called a command
and another’s reaction is called compliance be distinguished from the
many cases where this does not occur? The answer can only be that an
utterance is a command if it expresses the meaning of an act of will,
specifically the meaning that the other person is to behave in a certain
way; and the other person’s reaCtion is compliance with the command if
it is behaviour which agrees with the meaning which is expressed in the
utterance and which he understands, and if his motive in acting is his
intention to behave in a way which agrees with the command he is aware
of. This is compliance in the genuine, subjective, sense of the word. (It
must be distinguished from ‘compliance’ in the objective sense, of which
more later: cf. below, ch. 15). If a father says to his son ‘You’ll go to
school tomorrow’, this expression is a command for the son—i.e. the son
understands it as a command—if he believes that the words spoken to
him by his father an act of will whose meaning is that he is to go to
to school tomorrow, i.e. if the son understands in this way the sentence
uttered by his father. He could understand it simply as a statement, and
answer ‘You are mistaken: I shall not go to school tomorrow, since
tomorrow is Sunday and there is no school.’ Without any reference to the
inner processes of willing and understanding and without the help of the
concept of a meaning (a concept different from that of an utterance),
utterances which are commands and reactions which are compliance
cannot be distinguished from those which are not. Without any reference
to these inner processes and without the help of the concept of a meaning,
it is therefore impossible to observe the regularity of the sequence of
command and compliance, and hence to describe a concrete command
and its observance as causally connected. The inner processes in the
commander and the addressee are an essential component of this causal
connection.
40 Acts of Commanding and Observance ch. 10
V. ‘The Cock Calls the Hens by Crowing’

Someone who says ‘The cock calls the hens by crowing’ interprets the
cock’s crowing as analogous to human behaviour, that is, to a father’s
calling his children (who are playing in the garden) into the house to eat.
He can do this by uttering the words ‘Come and eat’ or simply by
uttering the word ‘Dinnerl’, which linguistically can have the meaning of
a statement (‘It is now dinnertime’) but which is understood by the
children to be, just like the words ‘Come and eat’, a command to come
into the house, and which they therefore obey. In other words, the
cock’s crowing is interpreted as a command and the hens’ behaviour as
compliance with this command. In other words, one considers there to
be the same causal connection between the cock’s crowing and the
gathering of the hens as between a father’s call and the gathering of the
children.
But is this interpretation permissible? Note that in many cases the
cock crows without the hens gathering round. Hence it must be a
particular crowing which has this effeCt. But if the cock can crow in
different ways, and we want to describe the situation by saying ‘The
cock calls the hens by crowing’, the question then arises as to the cause of
the cock’s crowing in different ways at different times. The answer to
this question—if there is one—can only be: The cock crows in this
particular way because it wants to cause the hens to gather round by
crowing in this way, i.e. because it wills that the hens are to come. In
other words, we must extend the analogy with the calling of the children
to the coc/e’s inner behaviour. And if we interpret the cock’s crowing as a
‘calling’ of the hens, we must also interpret their reaction to this
particular way of crowing—their gathering round—in such a way that
they distinguish this way of crowing from Others and understand the
command to gather round.
It can be objected that there is no justification for assuming that the
cock wants its crowing to have the effect of causing the hens to gather
and that the hens understand just this way of crowing as a command, i.e.
there is no justification for such an extension of the analogy with a
human command. If we accept this objection (i. e. refuse to extend the
analogy that far), then we must give up completely the analogy with a
human command 1n our description of the event. We can no longer say
‘The cock calls the hens by crowing’ just as we do not, and cannot, say
‘The heat of the sun “calls on the rails to expand” ’, but we must say ‘A
certain way of crowing by the cock causes the hens to gather round’ just
as we say ‘The heat of the sun causes the rails to expand.’ The cock’s
crowing is a series of sounds which the hens hear, but they are n0t a ‘call’
as are the sounds produced by the father when he calls his children,
because the latter sounds have the meaning of a specific command which
§V Acts of Commanding and Observance 41

one must call a ‘call’, since the father expresses in this way the meaning of
his will that the children are to come, and because the children not only
hear the sounds but understand them as a command to come. It is
irrelevant that the hens’ gathering round is caused by sounds which they
hear. The causal conneCtion between the cock’s crowing and the hens’
gathering round is no different basically from that between the heat of
the sun and the expansion of the rails. The conclusion is this: if we
cannot accept that the cock’s crowing is the expression of the meaning of
the cock’s act of will, which is then understood by the hens, then the
event cannot be described as ‘The cock calls the hens by crowing’, i.e. we
cannot describe the cock’s crowing as a command which the hens obey
by gathering round (NOTE 39).
 11
Recognition and Observance of
Norms
I. Assent to a Command; Recognition of a Norm

A command or order or prescription or norm is essentially directed to

the behaviour of someone other than the person who gives the order or
issues the command or makes the prescription or posits the norm.1 And
if I am the one positing the norm addressed to me, I must—as was
indicated previously—consider myself as another person. Whether there
is such a thing as an autonomous morality, whether the morality which is
valid within a given community is autonomous, is a separate issue. In any
case, it is psychologically possible to address a command or order or
prescription or norm to oneself; in fact it is even possible in a
heteronomous morality where commands are addressed to me by
someone else: namely, when I recognize the norm, when I assent to the
command addressed to me by someone else.

II. Assent to a Command and to a Statement

Assent to a command (which cannot be true or false) must be

distinguished from assent to a statement (which is true or false). In the
former case, there is an agreement of wills between the commander and
the addressee, and in the latter case, there is an agreement of thought
between the person making the statement and the person who takes
notice of it. Assent to a statement consists in a statement, i.e. the
statement that the statement to which one assents is true. It is equivalent
to a repetition of the statement on the part of the person assenting to it. If
A makes the statement ‘This tree is a fir tree’, B assents to it by making
the statement ‘Yes, this is a fir tree.’ Just as assent to a statement is itself a
statement—the repetition of the statement assented to—so assent to a
command or norm prescribing a particular behaviour of another person
1 Bon (1898: 26): ‘. . . it is one of the experiences deposited or condensed in the concept of
Ought and the corresponding concept of a command, that there must always be at least two
beings for there to be any talk of a command: one who commands and one to whom something
is commanded.’ Hence (according to Bon) the answer to the quesrion ‘What ought I to do?’
must be: ‘You ought to do what another commanded you to do.’
§ III Recognition and Observance of Norms 43

is itself a command—the repetition of the command assented to, but

addressed by the assenting or recognizing person to himself.

III. Assent to a Command and the Will to Observe the Command

When A orders B to do something, B assents to A’s command if he

addresses to himself the command that he is to do what A ordered him to
do. But the will of which this command is the meaning is not the same as
the will to do what is commanded, to observe the command, i.e. the will
which leads to the observance of the command. Assent to a command
addressed to me by another person to the effect that I am to do
something is an act of will. The meaning of this act of will is described in
the words ‘I am to do this.’ The meaning of the act by which I will to do
something is described in the words ‘doing this’ and not ‘I am to do this.’
I can will to do something even though it is not the case that I am to do
it. And I can will that I am to do something without willing to do it: I
can be unable to observe the command I address to myself. For example,
if an officer in wartime orders a subordinate to shoot an enemy soldier
who has surrendered, the subordinate assents to the command if he
orders himself ‘Shoot the enemy soldier who has surrendered’ and
expresses this assent with the words ‘Yes, sir.’ With these words, he
expresses the fact that he addresses to himself the command addressed to
him. But even though he assents to his superior’s command by
addressing it to himself, he may be unable to observe the command he
addressed to himself, i.e. summon the will to shoot the prisoner. That it
is possible to assent to a command and nevertheless not perform the act
of will leading to observance of the command can be seen particularly
clearly in the case where a person who failed to observe a command
regrets his behaviour and disapproves of it. For this presupposes that the
person has assented to the command, i.e. addressed the command to
himself. But it is possible not only to assent to a command and fail to
obey, but also to obey without assenting (NOTE 40). In the example
above, the subordinate can obey the command because he knows that
otherwise he will be shot himself; nevertheless he does not assent to the
command, but disapproves of it, for he rightly considers it to be a
violation of international law. He shoots the prisoner, but not in
obedience to a command he addressed to himself. But if he shoots the
prisoner, he must have willed to do so (NOTE 41).
A person’s assenting to a command addressed to him is the same as a
person’s recognizing a norm of which his behaviour is the object. I
recognize the general norm ‘Everyone is to keep his promises’ if,
whenever I make a promise, I address to myself the command ‘Keep this
44 Recognition and Observance of Norms ch. 11
promise you made’, i.e. if I perform an act of will whose meaning is this
command addressed to myself.

IV. Difference between Recognition and Observance of a Norm

But the recognition of a norm is not identical with the observance of the
norm. I can recognize the norm ‘Everyone is to keep his promises’, I can
sincerely will that I am to keep my promises, and yet be unable to
observe this norm I address to myself, i.e. summon the will which leads
to the commanded behaviour. If I reproach myself for n0t having kept a
promise, if I disapprove of my own behaviour, I must have recognized
the norm ‘Everyone is to keep his promises’, i.e. have willed that I am to
keep my promises; but this does not mean that I do keep my promise.
And since I can only do what I will to do, it must be possible to will that
I am to keep my promise without willing to keep it.

V. Willing One’s Own Behaviour and Willing that Another Person is

to Do Something

People erroneously identify ‘ordering oneself to do something’ (i.e.

willing that one is to do something) with ‘willing to do something’,
because they often say ‘When A orders B to do something, A wills B’s
behaviour’ (NOTE 42). Whence: When B assents to A’s command by
ordering himself to do what A commanded, he wills to do what A
commanded. But the first sentence is false: A cannot will the behaviour
of another. For a person can only will his own hehaviour. A can only will
that the other person is to do something. That is the difference between
willing directed to one’s own behaviour and willing directed to the
behaviour of another person. In the case of an act of will directed to the
behaviour of another person (i.e. in the case of a command), the meaning
of one person’s command is not the other person’s behaviour, but the
Ought of the other person’s behaviour commanded in the command. In
the case of a self-addressed command, the addressee stands opposed to
the commander as another person, as his alter ego; hence, the meaning of
the act of will by which a person addresses the command to himself is
likewise the Ought of his own behaviour, and not the behaviour; I will
that I am to do what is commanded, I do not will to do what is
commanded.
Some people might be inclined to think that the claim that a person can
only will his own behaviour is true only of that willing which is
immediately connected with bodily movement or action (i.e. that willing
without which voluntary movement is impossible), and to think that in
§V Recognition and Observance of Norms 45
the case of willing directed to one’s own future behaviour (i.e. what is
called a decision to behave in a certain way in the future), one can speak
of a command addressed to oneself (as when, for instance, I decide to fly
to Europe from America in a couple of days’ time, or to vote for
candidate A rather than candidate B in the forthcoming presidential
election). But this is wrong. I can decide upon some future behaviour
without willing that I am to behave in this way. If I do not carry out my
decision to fly to Europe or to vote for candidate A, I do not interpret
my behaviour as something I was not to do, but if another person does
not comply with my command, I interpret his behaviour in a wholly
different manner: he did not behave as he was to behave according to my
command.
 12
The Validity ofa Narm and its
Observance or Violation
Immediate observance or violation is possible only with a categorically
valid individual norm, and not with a general norm (whether categoric-
ally or hypothetically valid). For behaviour which can be characterized
as observance or violation of a norm is possible only after the condition
abstractly specified in the general norm is concretely realized. For
instance, if a general moral norm decrees ‘If someone makes a promise,
he is to keep it’, we can speak of observance or violation of the norm
only after a specific person A has made a specific promise—cg. to pay
1,000—to a specific person B, and after A has or has not paid 1,000 to B.
When the condition abstractly specified in the general norm has been
concretely realized, it is often said that the general norm is now'
unconditionally valid, as if it had changed, for the present case, into the
individual unconditionally valid (i.e. categorical) norm ‘A is to pay 1,000
to B.’ For it is this individual categorical norm which A observes or
violates immediately. People consider the general norm—which is- a
meaning—as if it were a physical object which can undergo change and
yet remain the same object. But the individual categorical norm which is
observed or violated in this case is a different norm from the general
categorical norm; the difference is as great as that between a concrete
sensibly perceptible object and the abstraCt concept of this object.
If an individual categorical norm is observed or violated, then in order
to be valid it must be posited by a real act of will: it must be‘the meaning
of an act of will different from that of which the general norm is the
meaning. But according to an opinion which is almost universal, there is
no need for such an act of will positing an individual categorical norm,
since it is assumed that the individual categorical norm is implicit in the
general norm. This belief rests on a fiction: that the act of will of which
the individual norm is the meaning is implicit in the act of will of which
the general norm is the meaning, or in Other words that, had the
authority which posited the general norm known of the concrete case
where A promised to pay 1,000 to B, it would have posited the individual
unconditional norm that the behaviour abstractly specified in the general
norm is to occur concretely (i.e. that A is to pay 1,000 to B). This is a
fiction, since the moral or legal legislator cannot foresee future concrete
cases, and also since it is possible that, had he foreseen a given concrete
 Validity and Observance or Violation 47
case, he might have created an exception to the general norm he posited.
The fact that the truth of the individual statement ‘Socrates is mortal’ is
implicit in the truth of the statement ‘All humans are mortal’ does not
entail that the validity of an individual norm is implicit in that of the
general norm it corresponds to, since, as was mentioned before, the truth
of a statement is independent of the fact of its being thought, while the
validity of a norm is conditional upon the fact of the act of will of which
it is the meaning. The assumption that the validity of the individual norm
is implicit in the validity of the general norm it corresponds to is
equivalent to the assumption that the validity of the individual norm can
be deduced by means of a logical operation from the validity of the
conditional general norm and the truth of the statement that the
condition abstractly specified in the general norm obtains concretely. It
will be shown later that this is incorrect (cf. ch. 58. XIV).
Usually, a person observes or violates a norm only once he is aware of
the general norm concerning his behaviour, for instance the moral norm
‘Love your enemies.’ There are then two possibilities. Person A,~who has
an enemy B, can recognize the general moral norm for himself, that is,
address to himself the individual categorical norm ‘A, love your enemy
B’. And he can then observe or violate this norm. But he can also refuse
to recognize the general norm he is aware of—that is, not address a
corresponding individual categorical norm to himself. Then—from his
point of view—no norm is observed or violated.
But it can happen that he becomes aware of the general norm only
after he has felt love or hate for his enemy. If he then recognizes the
general norm for himself, he can approve or disapprove of his behaviour,
that is, address to himself an individual norm which corresponds to the
general norm and assess his behaviour as observance or violation of this
individual norm: in other words, he applies the general norm to himself.
He can assess his own behaviour as morally good or morally bad. He can
be satisfied with himself or feel remorse and criticize himself. But if he
does not recognize the general norm for himself and thus does not
address to himself an individual categorical norm which corresponds to
the general norm, then—as in the first case—there is neither observance
nor violation of any norm (from his point of view).
If we say that a general norm is valid for him even if he does n0t
recognize it for himself, that means that the general norm is applied to
his behaviour—his behaviour 1s assessed as good or bad 1n accordance
with this norm—even if he fails to recognize it. And this is correct to the
extent that—where the norms of a moral order are concerned—approval
or disapproval of his behaviou1 based on a recognition of the general
norm is possible on the part of the other members of the community. For
when a moral order decrees a certain behaviour to be obligatory under
certain conditions, it also prescribes that the behaviour of a given person
48 Validity and Observance or Violation ch. 12
is to be approved or disapproved of by the others according to whether
or not it agrees with what was decreed to be obligatory. But this
approval or disapproval presupposes that the general norm is recognized
for the concrete case and thus that it has been ascertained that the
condition abstractly specified in the general norm is realized in this
concrete case. This recognition implies the positing of an individual
categorical norm which decrees the behaviour of the person in question
to be obligatory. If A disapproves of the behaviour of B who failed to
keep a promise, A must recognize the general norm ‘If anyone makes a
promise, he is to keep it’ for this case, that 18, he must ascertain that B
promised to pay 1,000 to C and did not keep his promise, and then posit
the individual categorical norm ‘B is to keep his promise to pay 1,000 to
C’. A’s disapproval concerns (immediately) the violation of this
individual categorical norm. By decreeing that approval of norm—
observing behaviour and disapproval of norm-violating behaviour are
obligatory, the moral order thereby confers the power to posit individual
categorical norms which correspond to the general hypothetical norms.
Hence, even if a person does not recognize for himself a general moral
norm concerning some behaviour of his and so does not address to
himself an individual categorical norm corresponding to the general
hypothetical norm, his behaviour can still be characterized as observance
or violation of the individual categorical norm which is bound up with
the approval or disapproval on the part of other members of the
community instituted by the moral order. By expressing moral approval
or disapproval of someone else’s behaviour, an individual observes the
norm which empowers him to approve and disapprove, and he applies to
the behaviour in question the general norm which he recognizes and
which concerns the behaviour to be approved or disapproved of.
This is what constitutes what can be called the autonomy of morality.
Morality is not autonomous in the sense that general norms are valid
only if they are posited by the individual whose behaviour they concern;
for general norms originate in custom or are posited by outstanding
personalities such as Moses, Jesus, and Muhammad, and to that extent
morality is heteronomous. But morality is autonomous in the sense that
these general norms can be applied to concrete cases only through
individual norms which the individual addresses to himself in re-
cognition of the general moral norm, or which others who approve or
disapprove of his behaviour posit in recognition of the general moral
norm. Morality can be called autonomous only in this restricted sense
since, even if a given individual does not recognize a general moral norm
concerning his behaviour, the norm can still be applied to his behaviour
by others. The belief that morality is not autonomous even in this
restricted sense is sometimes defended with the claim that a general moral
norm is valid for a subject whose behaviour it concerns even if no one
 Validity and Observance or Violation 49

recognizes its validity, since even in such a situation the subject’s

behaviour can be assessed as morally good or bad, that is, as agreeing or
not With the norm. But this is a delusion. For in making this claim, a
person thereby recognizes the validity of the general norm in question,
and it is only 1n this way that the behaviour 1n question can be assessed as
good or bad.
 13
The Objectivity oftbe Validity of
General Norms and ofIndividual
Norms

A general hypothetical norm is valid as soon as it is posited. It is ‘Valid’ in

the sense that it exists as the meaning of a real act of will. But it is valid
only conditionally, and (as was said earlier) cannot be immediately
observed (or violated) and applied, as it is a general hypothetical norm, If
the validity of a norm means that it ought to be observed and applied,
and if only an individual norm can be immediately observed and applied
(and a general norm only mediately), then a general hypothetical norm
can be valid only mediately, that is, through the intermediary of the
validity of the corresponding individual categorical norm in which the
behaviour abstractly decreed to be obligatory in the general hypothetical
norm is concretely decreed to be obligatory. This presupposes the
recognition of the general hypothetical norm by the individual positing
the individual categorical norm. To that extent, we must agree with the
frequently advanced Recognition Theory according to which the validity
of a moral or legal order depends on its recognition by the individuals
subject to it.
The validity of a general hypothetical norm begins when it is posited.
But this conditional validity is not full validity. The process by which a
general hypothetical norm becomes valid does not end with the positing
of the norm. It must be continued, once the condition abstractly
specified in this general hypothetical norm is concretely satisfied, by the
positing of an individual categorical norm which corresponds to the
general norm. That is the process of individualization of the general
norm. The ‘validity’ of a general norm, i.e. its specific existence, is not a
static state of affairs, but a dynamic process (NOTE 43).
As was mentioned before, there exists a logical relation between a
general hypothetical norm and an individual categorical norm which
corresponds to it, inasmuch as the behaviour concretely decreed to be
obligatory in the individual norm Stands to the behaviour abstractly
decreed to be obligatory in the general norm as a concrete representation
to the abstract concept under which the concrete representation falls. But
this does not mean that the validity of the individual categorical norm
can be derived by way of a logical operation from the validity of the
 Objectivity of the Validity of Norms 51
general hypothetical norm with the help of the truth of the statement
about the satisfaction of the condition in a concrete case (cf. ch. 58. XIV).
In spite of the fact that the full validity of a general hypothetical norm
depends on the recognition of its validity on the part of the individual
positing the corresponding individual norm, we can nevertheless—as
was mentioned before—speak of the objective validity of a general norm
inasmuch as the general norm can be applied to an individual who does
not recognize it, namely, by other individuals who, recognizing the
general norm, apply it by reacting to his norm—observing or norm-
violating behaviour with the sanctions it decrees to be obligatory; where
norms of morality are concerned, this means by approving of the
individual’ 5 norm-~observing behaviour and disapproving of his norm—
violating behaviour, whether or not the individual observing or violating
the general norm recognizes the general moral norm being applied,
indeed whether or not he is even aware of the general norm being applied
to him (NOTE 44) or of the approval or disapproval of his behaviour. In
this way, the objective validity of the individual moral norm implicit in
the approval or disapproval is also given. We shall examine later whether,
and to what extent, this is also the case in the area of law (cf. ch. 58. xv).
 14
The Immediate and Mediate
Addressees of General Norms of
Law and ofMorality
As was established earlier, approval and disapproval of the norm-
observing and norm-violating behaviour of an individual on the part of
others are the specific sanctions of a moral order and a guarantee of its
effectiveness. For human beings, in their desire for recognition, wish to
be respected and not rejected by others and are therefore driven to seek
approval for their behaviour and to avoid disapproval. In this respect—
as was also established earlier—law differs from morality in that the
sanctions (i.e. the reactions to a certain behaviour) its general norms
decree to be obligatory are not approval or disapproval, but character-
istic coercive acts: compulsory deprivation of life, freedom, and
economic or other goods (NOTE 45). What law and morality have 1n
common is that both are normative orders, i. e systems of norms which
regulate human behaviour (NOTE 46).
The immediate addressees of general hypothetical legal norms are thus
the individuals who are empowered—and in certain circumstances, also
obligated—to order concretely and to execute the coercive acts which
serve as sanctions. The merely mediate addressees of the general legal
norms are the individuals whose behaviour is the condition for the
coercive acts decreed in these norms. A general legal norm decreeing a
coercive act to be obligatory is observed by the individual who has to
perform the coercive act. It is applied to the individual whose behaviour
is the condition for the coercive act. In modern legal orders where law is
created and applied by organs functioning on the basis of a division of
labour—legislative organs and law-implementing organs (courts and
administrative agencies)—the performing of the coercive act occurs in
two stages. First stage: a finding that the condition abstractly specified in
the general norm is satisfied concretely; and then, the positing of an
individual categorical (or conditional) norm addressed to a particular
execution-organ decreeing the coercive act abstractly specified in the
general norm to be concretely obligatory. Second stage: execution of
the coercive act in compliance with the individual norm on the part of the
organ to which the individual norm is addressed. In the area of criminal
and civil law, the finding of fact and the positing of the individual norm
 Immediate and Mediate Addressees of Norms 53

mentioned in stage 1 fall to a court, and in the area of administrative law,

they fall to an administrative agency. Thus the general legal
norm reads as follows: ‘If the competent law-applying organ—in
particular, a court—finds that a person has behaved in a certain way—
e. g. has committed theft—the law- applying organ is to posit an
individual norm decreeing that a certain coercive act—e. g. imprisonment
(i.e. coercive deprivation of freedom)—is to be directed against this
person.’ It is clear that by the performance of this coercive act it is only
the individual categorical norm posited by the court which is observed
immediately; the general hypothetical legal norm is observed only
mediately. And if the organ to which this individual norm is addressed
fails to execute the coercive act, it is only the individual norm posited by
the court which is violated immediately. But, as was stated earlier, the
court can also posit a hypothetical individual norm, for example, ‘If the
defendant Maier does not pay 1,000 to his creditor Schulze within two
weeks, execution is to be carried out upon Maier’s assets, i.e. some of his
assets removed by force.’ Or the court can impose what is called a
conditional punishment, that is, posit an individual norm in which the
execution of a coercive act is obligatory only on the condition that the
person against whom it is addressed as a reaction to a delict he
committed commits another delict within a certain period of time. Then,
once the competent court finds that the condition is satisfied, it has to
posit the categorical norm that the coercive act is to be executed.
The addressee of the individual norm posited by a judge is an
execution-organ. But the judge is also the addressee of a norm: the
general legal norm which decrees that the judge is to posit this individual
norm addressed to the execution-organ. The judge can behave in two
ways towards this general hypothetical norm. He can recognize the
general norm for the concrete case, that is, once he finds that the
condition abstractly specified in the general norm is concretely satisfied
(e.g. that Schulze stole a certain sum of money), he can address to himself
the individual categorical norm ‘You, judge, are to posit an individual
categorical norm decreeing that Schulze is to be imprisoned.’ The judge
can then observe or violate this individual categorical norm. But he can
also—for some reason or other—not recognize the general hypothetical
norm for this concrete case (e.g. because he believes that its application
to this case would be unjust) and consequently not address to himself the
individual categorical norm ‘You are to decide: Schulze is to be
imprisoned’, and not posit this individual norm. This judicial decision
can become res judicata. No violation of a norm on the part of the judge
has then occurred. If the court is a lower court and its decision is
appealed, a higher court can order the judge to posit the individual norm
decreeing that Schulze is to be imprisoned, and then the judge’s response
would constitute immediate observance or violation of this individual
54 Immediate and Mediate Addressees of Norms ch. 14

norm addressed to him by the higher court. But if the court is one of last
instance, the application of the general hypothetical norm to the concrete
case depends on its recognition by the judge, and this recognition
consists in the following: the judge 1s to address to himself an individual
norm corresponding to the general norm, and the judge posits this
individual norm (NOTE 47).
If we realize that the legal norms ordering coercive aCts—both the
general norms and the individual norms—are addressed to legal organs
and not, or at least not immediately, to the persons whose behaviour is
the condition for these coercive acts, and if we relate ‘autonomy’ to the
application rather than the creation of norms, then we can speak of the
autonomy of law 1n the sense that the application of general legal norms
to concrete cases is possible only if these norms are recognized by the
law- applying organs. But law 1s not autonomous for the persons whose
behaviour is the condition for the coercive acts decreed to be obligatory
by the general and individual legal norms, the persons to whom the
general and individual legal norms are therefore only mediately or
indirectly addressed, the persons who are.commanded to behave in a
way which is the opposite of that which is the-condition for the sanCtion:
for them the law is heteronomous.
In this respect, there is no basic difference between law and morality.
Both are heteronomous in the sense that their general norms are posited,
not by those who are subject to the norms, but either by an authority
distinct from the subjects or by way of custom. And both are
autonomous in the sense that the application of the general norms to a
concrete case depends on the recognition of their validity on the part of
the organ applying the general norms. And 1n both cases, we can speak of
an objective validity of the general norms. This is so true of general legal
norms that their validity 1s totally independent of their recognition by
those who are subject to the legal order—as opposed to the law--creating
and law-applying organs—and general legal norms are applied to a
subject who behaves illegally whether or not he is aware of the validity of
the general legal norm. Ignorance of the law on the part of the subject
does not exclude the application of the law (as was mentioned earlier);
the fact that a court does not recognize and so does not apply a general
legal norm to a concrete case does not repeal the validity of the general
legal norm, and consequently it can be applied as a valid legal norm in a
similar case by the same judge and especially by other judges.
The question whether a person subject to the legal order (i.e. a legal
subject as opposed to a legal organ) has observed or violated a legal norm
cannot be decided in a legally relevant way by the subjects of the law.
The answer to the question whether a certain person observed or
violated the law by his behaviour (whether he acted according to or
contrary to the law) is implicit in the individual norm decreeing that a
 Immediate and Mediate Addressees of Norms 55

coercive act is to be performed by the competent legal organ as a reaction

to this behaviour or—When an accused is acquitted or a plaintiff’s case is
dismissed—that a coercive act is not to be performed as a reaction to this
behaviour. On the part of anyone else, opinions as to Whether the
behaviour of a person is legal or illegal are legally irrelevant.
 15
Primary arral Secondary Legal
Narms—Subjective and Objective
Observance arzd Violation of
Norms
In this connection, it makes no difference whether we postulate,
alongside the norms which decree the performance of a certain coercive
am on the part of a legal organ should there occur a certain behaviour of
the legal subject, other norms which decree the opposite behaviour of the
legal subject to be obligatory; in other words, if we suppose that every
general legal norm is a combination of two norms one of which decrees
to be obligatory a certain behaviour of the legal subject, and the other the
performance of a specific coercive act on the part of the legal organ in
the event of a violation of the first norm. I have called the latter norm the
primary norm, and the former the secondary norm. But even on this
View of things, the question whether the legal subject has observed or
violated a legal norm—the secondary legal norm—can be decided in a
legally relevant way only by the competent law-applying organ. If we
assume the validity of secondary norms—alongside primary norms——
even in the case of individual legal norms, then the decision of the law-
applying organ which applies the double general norm (e. g. ‘People are
to refrain from committing theft; if a court finds that someone has
committed theft, this judge is to posit an individual norm which decrees
that this person is to be imprisoned’) has to be understood as asserting
either:
1. Schulze was to refrain from stealing 1,000 from Maier.
2. Schulze stole 1,000 from Maier.
3. Schulze is to be imprisoned. (Conviction)

1. Schulze was to refrain from stealing 1,000 from Maier.

2. Schulze did not steal 1,000 from Maier.
3. Schulze is not to be imprisoned. (Acquittal)
The secondary individual norm ‘Schulze “was to” refrain from stealing
1,000 from Maier’ which applies the secondary general norm ‘Everyone
is to refrain from committing theft’ is necessarily a norm with retroactive
 Primary and Secondary Legal Norms 57
effect. This is theoretically possible, but it is a highly artificial
interpretation and is superfluous (just like the general supposition that
there are secondary norms alongside primary norms). If we suppose—as
people usually do—that legal norms are commands addressed in the first
instance to legal subjects and only secondarily to legal organs, and if the
principle that ignorance of the law is no excuse is valid (i.e. that a legal
norm can be applied by a legal organ even to a legal subject who is
unaware of this legal norm), then the claim mentioned in Endnote 44 that
it is of the essence of a command that it be known to the addressee is
clearly untenable. This is true not only of the general legal command of
the legislator, but also of the individual legal command of the judge.
But we can distinguish between subjective and objeCtive observance
and violation of commands. A command is objectively observed or
violated if the behaviour it prescribes actually takes place or does not
take place (if the person to whom something is commanded aCtually
performs or does not perform the behaviour in question, if his behaviour
agrees or does not agree with the command), whether or not he isaware
of the command. But a command is ‘observed’ or ‘violated’ subjectively
only when the addressee’s behaviour agrees or fails to agree with a
command of which he is aware, only when he wants to behave (or not to
behave) in a way which agrees with the meaning of an act of
commanding which he understands, or he wants to behave in the
opposite way.
 16
The Modes ofIs and Ought and
the Moddly Indtfferent Suhstmte
I. The Irreducible Duality of Is and Ought

If—as was indicated earlier (ch. 9.I)—the willing of one’s own behaviour
has to be distinguished from willing that another person is to behave in a
certain way (i.e. commanding this behaviour), then the following quite
common statement cannot be correct: ‘ “An individual ought to do
something” simply means “Another individual wills something.” ’ These
are two statements which concern different objects. The first is a
statement about an Ought, the other a statement about an [5. An Ought
cannot be reduced to an Is, or an Is to an Ought; and so an Is cannot be
inferred from an Ought, or an Ought from an Is (NOTE 48). Ought and Is
are two wholly different meanings, or—since the plural of ‘meaning’ is
not idiomatic [in German]——two wholly different meaning-contents
(NOTE 49). ‘Is’ and ‘Ought’ are purely formal concepts, two forms or
modes which can assume any content whatsoever, but which must
assume some content in order to be significant. It is something which is,
and it is something which ought to be. But no specific content follows
from the form.
Attention must be paid to the question whether a sollerz—sentence
represents the norm of a positive morality or positive law (and therefore
must be the meaning of a real—individual or collective—will) or
whether it is a merely thought sollerz-sentence which does not represent a
positive norm. It is doubtful whether there are any such merely thought
sollen-sentences, whether an Ought can be thought without the
accompanying thought of a will—even if only a fictitious will—of which
the Ought is the meaning. We shall return to this question later (ch. 58.
XXIII).
If we presuppose a merely thought Ought which is not the meaning of
any real act of will, then such an Ought can be wholly independent of
any Is which agrees or does n0t agree with it, and it is possible for there
to be an Ought with which an Is never agrees or always agrees. One can
think—for example—of the sentence ‘Human beings are to die’ or th!
sentence ‘Human beings are not to die’, and both sentences make sense
even though an Is always agrees (and cannot fail to agree) with the Ought
of the first sentence and an Is never agrees (and never can agree) with the
 Modes and Substrate 59

Ought of the second sentence. But if the sollen-sentence represents a

norm of a positive morality or positive law, then this Ought is not
completely independent of an Is which agrees or does not agree with it.
A norm is posited on the presupposition that an Is which agrees with this
norm is possible and that an Is which fails to agree with it is also possible.
For there is no point in decreeing something to be obligatory in a norm,
if it must necessarily occur even if the norm is not posited or if it
necessarily cannot occur in spite of the positing of the norm (i. e. if in the
first case violation of the norm is impossible and in the second
compliance with the norm is impossible). For the purpose of positing a
norm which decrees behaviour to be obligatory is to bring about
behaviour which agrees with the norm by the means of a mental
representation of the norm acting as a motive for the behaviour in
question.
Apart from this restriction, the Ought of a norm can have any content
whatsoever. Therefore it is inadmissible to understand by the ‘Ought’ of
a norm, only an Ought with a certain content, such as the moral Ought,
or even the Ought of some particular morality, and so to absolutize this
morality. Ought is the meaning of any act of will directed to the
behaviour of another, any command--act, even one which prescribes
something which conflicts with the norms of a particular morality. Thus
the meaning of acts which posit positive legal norms is also an Ought,
even if these legal norms can be judged immoral from the point of view
of a given morality (NOTE 50).
Since Is and Ought are forms or modes which can assume any content
whatsoever, the same content can appear sometimes as existing and
sometimes as obligatory. In the sentence ‘A pays his gambling debts’,
‘paying—gambling-debts’ appears as existing, and in the sentence ‘A
ought to pay his gambling debts’ it appears as obligatory. The common
expression ‘Something ought to be’ is misleading. It creates the
impression that Ought involves an Is. We can avoid this impression by
saying ‘Something is obligatory.’ People say ‘An Ought aims at an Is.’
But that is also misleading. It is not the Ought which ‘aims at’ an Is, i.e.
which has a certain intention. It is the person commanding that another
is to behave in a certain way who, with his command, ‘aims at’ the Is of
this behaviour; it is the legislator positing the norm that thieves are to be
punished who, with this norm, aims at the Is of the punishment of
thieves. If expressions about the Ought’s ‘aiming at’ something or ‘being
directed’ to something refer to the meaning of the Ought, then Ought
‘aims at’ nothing but itself: Ought. As the goal of the positing of norms,
the actually existing behaviour agreeing with the norm is the effect
caused by the mental representation of the norm decreeing a certain
behaviour to be obligatory acting as a motive in the norm—addressee. The
expression ‘something ought to be’ supports the erroneous assumption
60 Modes and Substrate ch. 16

that an Ought is directed to an Is, or that every ought-norm, every

imperative, contains an is-statement,1 an assumption which plays a
decisive part in some answers to the question whether and how the
principles of logic apply to norms or imperatives.

II. Behaviour which Agrees with a Norm: Identity of the Modall}r

Indifferent Substrate of the Behaviour Decreed to be Obligatory
in the Norm with the Modally Indifferent Substrate of the
Behaviour Existing in Reality

‘Is’ and ‘Ought’ are two essentially different modes, two different forms,
which can have specific contents. In the statements that something is and
that something ought to be, two different components muSt be
distinguished: that something is, and that which is, that something ought
to be, and that which ought to be. That which is and that which ought to
be, the content of the Is and the content of the Ought, is a modally
indifferent substrate. In the sentence ‘A pays his gambling debts’, the
modally indifferent substrate ‘paying-gambling-debts’ is invested with
the mode of Is'; in the sentence ‘A ought to pay his gambling debts’, it is
inveSted with the mode of Ought. The norm ‘A ought to pay his
gambling debts’ gives the mode of Ought to the modally indifferent
substrate.2
Since Is and Ought are two essentially different modes, what is
existing cannot simultaneously be obligatory, or what is obligatory
simultaneously be existing. That something is as it ought to be, that an Is
‘agrees’ with an Ought, means that the content of an Is is identical with
the content of an Ought: the modally indifferent suhstrate is the same in
both cases. We have two identical modally indifferent substrates in two
different modes. It is not the existing behaviour, but the obligatory
behaviour, which occurs in the norm prescribing a certain behaviour.
The behaviour decreed to be obligatory in the norm and the behaviour
existing in reality and agreeing with the norm are two different things
with respect to their mode.
It should be noted that the modally indifferent substrate cannot be
true or false, like the statement appearing in the mode of Is, or valid or
1 A typical example: speaking of ‘normative sentences’, Hall says: ‘Such sentences assert
what ought to be the case; they correlate with and in some vague intentional fashion include
corresponding sentences declarative of facts’ (1952: 249). (Cf. below, Endnote 138.)
2 Hall (1952: 125): ‘Suppose we have the imperative “Donald, wear your rubbers!” There is
a certain declaration, namely, “Donald is wearing his rubbers”, which bears a peculiar intimate
relationship to this imperative. We shall Speak of this relationship as one of “correspondence”.’
In the passage quoted in the previous note, Hall says that the declarative sentence which
corresponds to the ‘imperative’ or ‘normative’ sentence (i.e. the sentence which asserts that the
individual behaves as he ought to behave according to the norm or imperative) is ‘included’ in
the normative sentence. What is ‘included’ in the norm is not an is—statement, but a modally
indifferent substrate.
§ III Modes and Substrate 61
invalid, like the norm appearing in the mode of Ought, and so the
principles of logic are not applicable to modally indifferent substrates.
If we assume that, because a certain behaviour is commanded (i.e.
decreed to be obligatory) in a norm, one is obligated to act in this way or
that this behaviour is a duty, then this last statement concerns the
behaviour in the mode of Ought, and not that in the mode of Is. Being-a-
duty means being obligatory, being the content of an Ought. Being-the-
content-of-an--Ought is the property of behaviour as modally indifferent
substrate (just as it 1s the property of a cherry-stone to be contained
in a cherry). In this sense, being---a-duty cannot be the property of
existing behaviour agreeing with the norm. The property of existing
behaviour 1s being--in-accordance-with-duty, not being--a--duty, if this
means being-obligatory, being the content of an Ought (NOTE 51).

III. Reality and Value

The norm which decrees a certain behaviour to be obligatory institutes a

value. The judgement that some behaviour is ‘valuable’ or ‘has value (and
in this sense, is ‘good’) means that this behaviour—as modally
indifferent substrate—is decreed to be obligatory in a norm, is the
content of an Ought. This can also be expressed by saying: A certain—
existing—behaviour‘ agrees’ with a norm. That 1s a value-judgment, as
opposed to a judgment of reality which simply states that some
behaviour, as modally indifferent substrate, occurs in the mode of Is.
The duality of Is and Ought coincides with that of reality and value.
Thus no value can be derived from reality, and no reality from value. The
judgment that a certain behaviour does or does not agree with a norm
presupposed to be valid is an objective value-judgment, and must be
distinguished from a subjective value-judgment which merely expresses
that a certain object—and not only human behaviour—is desirable or
not, is desired or not by one or more persons. This subjective value-
judgment, which expresses the relation between two real facts—a real
object and a real emotional reaction of one or more persons to this
object—is not any different from a judgment of reality: it is only a
special kind of judgment of reality (as opposed to an objective value-
judgment). For the latter expresses the relation of human behaviour to a
norm presupposed to be valid, which has no real existence, but only an
ideell existence, i. e. its validity (NOTE 52).
In the case of an objective value-judgment, the value cannot—as the
expression ‘an actual behaviour “is” valuable or “has” value’ would
suggest—be understood as a property‘ of reality, as a colour is a real
property of a real object. That something real is objectively ‘valuable’
means that an Is agrees with an Ought. As was indicated above, this
62 Modes and Substrate ch. 16

means that the modally indifferent subStrate is the same in both modes,
that of Is and that of Ought. What is objectively valuable (what has
objective value) is that which is obligatory, and this cannot be something
existing, but rather the modally indifferent substrate. ‘Paying—gambling-
debts’ is valuable or ‘good’ if it agrees with a norm, if the modally
indifferent substrate of the paying-of—debts existing in reality is identical
with the modally indifferent substrate of the paying-of-debts decreed to
be obligatory in the norm (NOTE 53).
Since the behaviour decreed to be obligatory in the norm is not the
existing, actual, behaviour which agrees with the norm, the behaviour
decreed to be obligatory in the norm is not future behaviour (relative to
the norm). The validity of a norm decreeing certain behaviour to be
obligatory does not presuppose—as is often said—that the prescribed
behaviour does not yet exist. The correct representation of the situation
is that there does not yet exist in reality behaviour whose modally
indifferent substrate is the same as that of the behaviour decreed to be
obligatory in the norm. Value consists in this identity of the modally
indifferent substrate of an Is with that of an Ought; it is the relation
of identity between tbese two modally indifferent substrates, and not a
relation between reality and norm, between 15 and Ougbt. Something is
valuable when it is similar to something else. Tbat wbicb stands in this
relation of identity is not reality identical with a norm, or 13 identical
with Ought, but the value-indifferent substrate as content of the Is
which is identical with the value-indifferent substrate as content of the
Ought. It is possible to compare existing behaviour (reality) with a norm
(Ought), it is possible to ask whether existing behaviour agrees with a
norm which decrees some behaviour to be obligatory, but not because it
is possible to compare reality and value, Is and Ought—for they are
incommensurablel—but because it is possible to compare the substrate
of the Is and the substrate of the Ought. Therefore value is not a
property of reality, as people assume when they say that reality is
valuable or has value. Our language conceals the true relation implicit in
being valuable or having value (NOTE 54).
It is this modally indifferent substrate which some people have in
mind when they claim that a norm contains an ‘indicative factor’ or has a
‘theoretical content’. But the modally indifferent substrate is not an
‘indicative’ factor or a ‘theoretical’ content, since only a statement
(which 18 true or false) can be ‘indicative’ or ‘theoretical, and a norm,
which 18 neither true nor false, is not a statement.
 l7
Tbe Denial oftbe Duality ofIs
and Ougbt
The difference between Is and Ought cannot be explained any further;
We are immediately aware of the difference. (But this does not mean that
we are immediately aware of an Ought with a particular content, such as
a materially determinate moral norm). The concept of Ought can no
more be defined than that of Is. Yet no one can deny that the statement
that something is—i.e. a statement about an 15, about the existence of a
fact—is essentially different from the statement that something ougbt to
be—i.e. a statement about an Ougbt, about the validity of a norm. This
validity is the specific existence of the norm, its being in existence. Since
something can be without being decreed to be obligatory in a norm, and
something can be decreed to be obligatory in a norm without being in
reality, therefore when something is it does not follow that something
ougbt to be, or when something ougbt to be, that something is.1 The
relation between Is and Ought is one of irreducible duality.
In spite of the incontrovertible difference between Is and Ought, there
have been attempts, and still are attempts—most recently in connection
with the question of the applicability of logical principles to norms—to
deny directly or indirectly the duality of Is and Ought: for instance,
claims that an Is is implicit in an Ought, or an Ought in an Is, or that Is is
founded on an Ought, or Ought on an Is, or that a certain Ought
is connected with a certain Is in such a way that one of the two is
‘correlated with’ or ‘co-ordinated with’ or ‘parallel to’ the other, or can
be ‘translated’ into the other.

I. Plato’s Theory of Ideas

The core of Platonic philosophy is the opposition between the

transcendent world of the Ideas and the empirical world of the senses.
One of the basic differences between these two worlds is that the Ideas
are invariable while the things of sense-perception are subject to constant
change. I-Ience only the Ideas have true Being and, given the correlation
1 Prior notes ‘that it is impossible to deduce an ethical conclusion from entirely non--ethical
premisses’ (1949: p. 18). But that 13 simply the application to the particular field of ethics of the
general principle of the logical duality of Is and Ought.
64 Denial of Duality of Is and Ought ch. 17
Plato assumes between Being and knowledge, only the Ideas are truly
knowable. ‘How can that be a real thing which is never in the same
state?’ (Cratylus 439e) ‘Nor can we reasonably say . . . that there is
knowledge at all, if everything is in a state of transition and there is
nothing abiding’ (440a). If there is any knowledge, then it can only be
knowledge of the Ideas.
The Ideas are values first and foremost. The belief in transcendent
Ideas is clearly the outcome of the Socratic question about the nature of
moral goodness, the question as to what is truly good and bad about
things and especially about human behaviour. Any attempt to answer
this question runs up against the undeniable fact that moral goodness
cannot be seen in things, that it is not possible to perceive with the senses
that things are good or bad as we can perceive that they are black or
white, hard or soft, loud or quiet. In the Phaedo, the starting-point of the
exposition of the theory of Ideas is Socrates’ question: ‘Is there or is
there not an absolute justice? . . . And an absolute beauty and absolute
good? . . . But did you ever behold any of them with your eyes? . . . Or
did you ever reach them with any other bodily sense?’ (66d) It is the
nature of value which is being discussed. And Plato’s answer is to
attribute true Being to the Ideas which ‘are . . . always what they are’
(78d). When Plato raises the question of the nature of goodness, he is
thinking of objective value and not of subjective desire. For that reason,
he looks for the nature of goodness (of value) in a world beyond the
world of sense. For something to be good means that it is as it ought to
be, that it agrees with an objectively valial norm, and this norm is not the
meaning of any human act of will occurring in empirical reality, but is
located in a transcendent sphere. From the fact that a thing’s being good
is not perceptible with the senses, Plato’s metaphysical speculation
concludes that that which makes a thing good must exist not in this
world of sense perception, but in another, higher, world accessible to
thought freed from the senses. Since a thing is good or bad, since it is or is
not as it ought to be, the Is-ness or Being of goodness must be another
kind of Being than that of sensibly perceptible things; it must represent a
higher, a ‘true’, Being, and since the Being of sensibly perceptible things
cannot be a true Being, the latter must ultimately be a non-being. True
Being is that of the Idea, of moral value hypostatized as a transcendent
essence, the metaphysical Is-ness of Ought, or the Idea as a norm.2
As has been established, the Ideas in their original conception were
values, in particular, moral values. Hence the central Idea from which all
other Ideas receive their light is the Idea of good.3 Plato did postulate
2 Similarly the Pythagoreans, who had an important influence on Plato’s philosophy, did
not distinguish between Ought and Is, the Ideal and the Real. Cf. Joel (1921: i. 393 f.).
3 ‘In the world of knowledge the Idea of good appears last of all, and is seen only with an
effort; although, when seen, it is inferred to be the universal author of all things beautiful and
right, parent of light and of the lord of light [i.e. the sun] in the visible world, and the immediate
and supreme source of reason and truth in the intellectual’ (Republic 517b—c).
§ I Denial of Duality of Is and Ought 65
Ideas of things other than values and so he made the Idea into an
hypostatized concept;4 but in so doing he ran into insurmountable
difficulties which he himself eventually recognized (NOTE 55). In any case,
the Idea is not a concept which has simply been posited in a real way. For
a concept which is not a norm cannot serve as a standard of action (NOTE
56). The Idea of good ‘is the power upon which he who would act
rationally either in public or private life must have his eyes fixed’
(Republic 517c).5 The Idea must be a norm and must specify how things
ought to be, especially how people ought to behave. It is this Ought, the
Idea as Ougbt, which 1s true 15.
The identification of Ought with Is 1s necessarily bound up with the
identification of goodness with truth. In the Pbuedo, it is said that
‘absolute goodness’, i.e. the Idea of good—just like absolute beauty and
‘all that class of realities’ (76d)—cannot be perceived with the senses, i.e.
‘with the body’, but can be apprehended only ‘with the intellect in its
own purity’ (66a). It is also said that sight and hearing and the other
senses ‘have [no] truth in them’ (65b). ‘While we are in the body, and
while the soul is mixed with the evils of the body, our desire will not be
satisfied . . . and our desire is of the truth’ (66b). In this passage Plato
calls this striving after truth ‘the hunt for that which is’; it is the striving
after the good. ‘That which we desire’ is that ‘of which we say that we are
lovers’ (66e); in other words, a wishing or willing of what is good is
simultaneously a knowing of what is true. Truth and goodness,
knowledge or cognition and wishing or willing, logical value and ethical
value coincide: in the Republic the Idea of good is represented not only
as the cause of goodness but also as the source of truth. ‘That which
imparts truth to the known and the power of knowing to the knower is .
. the Idea of good, and this Idea, which is the cause of science and of
truth, you are to conceive as being apprehended by knowledge’ (508d—e)
(NOTE 57).
The consequence of the doctrine that it is only the transcendent,
eternally unchanging Ideas which have true Being is that the constantly
changing things of the sensible world subject to eternal becoming do not
exist in a certain sense. Since Plato denies the duality of Is and Ought and
represents Ought (in the Ideas) as Is, he must deny the Is--ness of
empirical reality, that 1s, demote it to non--being, and so replace the

e. g. in the Republic, especially at 596a—b: ‘Whenever a number of individuals have a

common name, we assume that there 18 one corresponding idea or form (eioog. .There are
beds and tables in the world—many of each. .but there are only two ideas or fOrms of such
furniture—one the idea of a bed, the other of a table.’
5 According to Republic 428c—d, the governors of the Ideal State must possess a ‘knowledge
.which advises not about any particular thing in the State, but about the whole, and considers
how it can best conduct itself in relation with itself and with other States. This knowledge 13 the
knowledge of the Ideas obtained through dialectic, especially the knowledge of the Idea of
good: Republic 531 ff.
66 Denial of Duality of Is and Ought ch. 17
duality of Is and Ought by the duality of Is and Is-not. In the Timaeus,
Plato says of ‘that which always becomes’6 that it ‘never is’ (27—8). But
this non-existing world of the senses is not mere nothingness: it ‘is’, in
some sense.7 But as such, it is not ‘good’, it is not a value. For it is only
the transcendent Idea which is ‘good’ in the sense of a value. From the
point of view of a metaphysics with a fundamentally ethical charaCter
(such as Plato’s), i.e. which is basically a speculation about good and evil,
the claim that the world of the senses ‘is not’ means that it ‘is not’ as it
ought to be. Just as the Ought (of the Idea) is Is, so the Is-not of
empirical reality is an Ought-not-to-be.
Platonic metaphysics has the immanent tendency—even if it is not
clearly worked out—to conflate the opposition of Idea and empirical
reality with that of good and evil, just as it conflates the opposition of
soul and body with that of good and evil.8 If there is anything good in
this world of sense, it is so only in so far as this world participates in the
Ideas. Thus, ‘if there be anything beautiful other than absolute beauty it
is beautiful only in so far as it partakes of absolute beauty—and I should
say the same of everything’ (Pbaedo 100C). As long as the Being of the
Idea is only the Being of a value, we can speak of the non-being of the
sensible world in the sense that this empirical world has 720 value in itself,
i.e. independently of the transcendent world of Ideas. But when the Idea
becomes a concept, when all the things in the sensible world have their
corresponding transcendent Idea, when the Being of the Idea is no longer
simply the Being of a value, then we can no longer speak meaningfully of
the non-being of the things of the sensible world. Hence, in the Republic
where he assumes there are Ideas for all things in the sensible world,
Plato reinterprets the non-being of this world as an intermediate level
between Being and non—being: ‘If anything appeared to be of a sort
which is and is not at the same time, that sort of thing would appear also
to lie in the interval between pure being and absolute not-being’ (478d).
But there is no middle between Being and non-being. This ‘middle’ is an
attempt to avoid the contradiction into which the Platonic theory of
Ideas falls when it represents the Ideas not only as values, but also as
hypostatized concepts of the things of empirical reality (NOTE 58).

6 [Translator’s Note: Kelsen writes in German ‘that which always is’ rather than ‘that which
always becomes’, but this is obviously a misquotation.]
7 Pétrement (1947: 45): ‘For Plato, non—being is not without a certain positive exiStence; it
exists in a certain fashion. Non—being is the other, rather than nothingness.’
8 In the Pbaedo (66), the body is called an ‘evil’.
§ 11 Denial of Duality of Is and Ought 67
II. Aristotle’s Entelechy

The entelechy (évrekéxew) of Aristotelian philosophy is a movement

inherent in all things and directed to a certain end (tékog). This end is the
perfection of the thing. It is an objective end which the thing has by its
very nature. The end inherent in the thing is for the thing to be as it
ought to be, i.e. to be good. In the Metaphysics, Aristotle asserts against
the philosophy of his time:
That for the sake of which actions and changes and movements take place, they [i.e.
the defenders of the theory of Ideas] assert-to be a cause in a way, but n0t in this way,
i.e. not in the way in which it is its nature to be a cause. For those who speak of
reason or friendship class these causes as goods; they do not speak, however, as if
anything that exists either existed or came into being for the sake of these, but as if
movements started from these. (1.7.988b6—10)

But ‘entelechy’ means a movement towards the good which is inherent in

things. A thing’s teleology is its value. The concept of entelechyis the
expression of the teleological interpretation of nature which is basic to
AriStotelian philosophy. The end inherent in natural things is the value
immanent in empirical reality, the Ought immanent in Is.
But a teleological interpretation of nature presupposes—consciously
or unconsciously, explicitly or implicitly—a theological view of things.
To the unavoidable question as to the source of the end inherent in
nature, the answer can only be the assumption that there exists a
transcendent authority which gives nature its goal. That is also the case
with Aristotle’s philosophy, even though because of certain peculiarities
of his metaphysics the claim is not clearly expressed and so is usually not
recognized in the traditional interpretation of Aristotle. The central
concept of this metaphysics is that of God as the ‘unmoved mover’. Since
everything which is moved must be moved by something, there must be
a firSt mover (Physics V111.4—5), ‘a mover which moves without being
moved’ (Metaphysics X11.7.1072a25). This is God. He is ‘a living being,
eternal, most good’ (oauév 6e IOV 986v eivat diBtov Ctbov (’J'tptotov,
1072b29). He is the ultimate good, the final end (On the Heavens, 11.12).
Since all movement proceeds from him directly or indirectly, and all
movement is directed to the good as to the end immanent in nature, this
movement towards the good can only be the end given to nature by God,
and the good in nature can only be the divine value immanent in reality,
i.e. the divine will in nature. Aristotle says explicitly: ‘But God and
nature create nothing that is pointless’ (a 5%. 986g Kai fi (bootg obBév
udtnv noroOotv, On the Heavens, 1.4.271a34). In the Eademian Ethics,
we find (V111.2 [v11.14].1248a25—7): ‘The objeCt of our search is this—
what is the commencement of the movement in the soul? The answer is
68 Denial of Duality of Is and Ought ch. 17
clear: as in the universe, so in the soul, it is God. For in a sense the divine
element in us moves everything.’ And in On Generation and Corruption
(11.10.336b32—4): ‘God perfected the totality of being, by making
coming-to-be something truly real having its end within itself. . . . All
beings in nature strive for what is eternal and immutable and manifest as
much as possible their inner connection with what is truly real and
substantial by constantly recreating themselves.’9
A consistent theological interpretation of the world is necessarily
bound up with the belief that God not only transcends the world, but
also is immanent in it. 10 This is true also of the Aristotelian interpretation
of the world, even if the idea of God’s immanence in the world is
obscured in AriStotle’s metaphysics because of his description of the
nature of God as pure thought, as reason (vofig) which is pure thinking
and not willing, and because he tries to explain his claim that all
movement proceeds from God as first mover by saying that God, as the
best and thus the most desirable, moves as something which is loved:
‘[The first mover] produces motion by being loved’ (Kn/8i 5:1; (50g
épwuevov, Metaphysics X11.7.1072b3). But finally Aristotle admits that
the end immanent in the world is put there by God. In the Metaphysics,
he asks ‘in which . . . ways the nature of the universe contains the good
or the highest good’ (x11.10.1075a12), in other words, how the world
acquires an end. And he answers by drawing a parallel between the
relation between God and the world and the relation between a military
leader and the order of his army. ‘The good [of an army] is found both in
the order and in the leader, and more in the latter; for he does not depend
on the order but it depends on him’ (1075a13—15). The order of the army
is set by the leader. The order is good because the leader is good.
Similarly the order of the world is set by God, and is good because God
is good. The goodness in the world is the goodness of God. At the end of
chapter 10, we read: ‘The world must not be governed badly’

9 [Translator’s Note: This is a literal translation of the passage which Kelsen quotes from
Franz Biese’s Die Philosophie des Aristoteles (Berlin, 1835) i.480, in the belief that it is Biese’s
German translation of Aristotle. But it appears to be a gloss or commentary, and furthermore,
Biese misunderstands the text, as he reads éV’CSAéXSla (‘entelechy’) for évoeléxeta (‘persistence,
continuity’). The passage reads (in the revised Oxford translation): ‘God . . . fulfilled the
perfection of the universe by making coming—to-be uninterrupted . . . because that coming-to-
be should itself come-to-be perpetually is the closest approximation to eternal being.’]
’0 A thought which Goethe expressed in verse in his ‘Prooemion’:
What were a God, who worked from outside in,
Who made the world upon his finger spin!
’Tis best he move the cosmos from inside,
Nature in Him, Himself in Nature hide.
That all who in Him live and breathe and move,
May never want his Power, or lack his love.
(Translation by Peter Heath, in Kelsen’s Essays in Legal and Moral Philosophy, p.121.)
§ II Denial of Duality of Is and Ought 69
(XII.10.1O76a 3), and there follows a quotation from Homer: ‘The rule of
many is not good; let there be one ruler.’ If the totality of being is good,
it is because it is ruled by God, because it obeys God’s commands. God’s
thinking reason is simultaneously a willing reason, for in relation to the
world it is a reason which commands (NOTE 59). In fact, this is how
Thomas Aquinas, one of Aristotle’s most faithful disciples, understood
his master—whom he calls the ‘philosopher’ (Kat’ ééoxfiv)—or how
he consistently worked out his thought.
There seems to be a contradiction in the claim that God is purely
thinking reason and that at the same time he is the mover of the world.
But Aristotle’s answer to the question as to how movement can proceed
from thought, from vofig, is the concept of practical reason, vofig
itpouctucog, which he distinguishes from theoretical reason, vofig
Gewpntucog (NOTE 60). This distinction can be found in On the Soul
(111.10). There we read that movement has two causes: appetite (Speétg)
and thought (vofig). The essential function of thought or reason (vofig) is
thinking. But thinking reason aCts as cause of movement only in so far as
it relates to action, i. e. sets a person a certain aCtion as his end. It IS
precisely in this setting of an end that practical reason differs from
theoretical reason. But the thinking of practical reason, practical
thinking—Aristotle uses the term Btdvow. itpouctucfi as synonymous
with vofig Itpouctucog—does not produce the action to which the reason
relates. This thinking is directed immediately to appetite which is the
proximate cause of action. Practical reason does not move without
appetite. But appetite can be determined only by practical reason—
though it need not be. Appetite often opposes reason. In such cases
' —that ‘appetites run counter to
one another’ (épééerg yt’yvot évavn’ou dkkfikatg). Appetite deter-
mined by the thinking of practical reason is called ‘will’ by Aristotle.
Will is appetite and thus is something other than the thinking of practical
reason. But the essential function of practical reason is to prescribe or
command, and the relation of appetite to practical reason is one of
obedience or disobedience. ‘Further even when thought (vofig) does
command and thought (Eton/0101) bids us pursue or avoid something,
sometimes no movement is produced; we act in accordance with desire
(Kata tfiv émGuut’av)’ (On the Son! 111.9.433al—3). Commands are the
meaning of acts of will; whoever commands something wills that
someone is to behave in a certain way. If commands issue from practical
reason, then the concept of practical reason involves a contradiction:
thought which wills. The resolution of the duality of Is and Ought is
implicit in this contradiction, for as thought, practical reason is
concerned with Is, and as will, with Ought.
This is even clearer in Aristotle’s ethics. In the Nicomacbean Et/oics,
reason is sometimes called koyog, sometimes vofig, and sometimes
7O Denial of Duality of Is and Ought ch. 17
Btdvma; it is represented as one part of the soul, which is made up of two
parts, one rational (to 5?. koyov é’xov) and the other irrational (fikoyov)
(1:13.1102a28). The irrational part of the soul divides further into a
vegetative part and an appetitive part. The latter, though irrational, is
related in a certain way to reason, since it ‘is obedient to’ reason. Reason
‘urges [man] aright and towards the best objects’ (1102b16), while the
irrational part, desire, ‘obeys reason’ (1102b27). And so Aristotle arrives
at the self—contradictory claim that even the irrational part of the soul
‘has reason (koyov éxew, 1103a1), since it has‘a tendency to obey as one
does one’s father’ (1103a3). This reason is clearly a practical reason, since it
prescribes a certain action and thus is a will and therefore defines what is
good, but it is also thought and (as thought) it is knowledge of the truth.
Hence that which is good—that which ought to be—is simultaneously
that which is true—that which is. It says in the Nicomucheun Ethics
(V1.2):
Now there are three things in the soul which control action and truth (npdfiewg Kai
dknGet’ag): sensation, thought (vofig), desire (opeétg) . . . What affirmation and
negation [i.e. of truth and falsity] are in thinking (év Stavoiq), pursuit and avoidance
[i.e. of good and evil] are in desire (év opéfiet); so that since moral excellence is a state
concerned with choice, and choice is deliberate desire [i.e. determined by reason],
therefore both the reasoning must be true and the desire right, if the choice is to be
good, and the latter must pursue just what the former asserts [i.e. as true]. Now this
kind of intellect and of truth is practical (016m uév 06v 1‘] Stdvowt Kai fi dkfieeta
rtpaictucfi); of the intellect which is contemplative (tfig 5e Gewpntucfig Stavotag), not
practical nor productive, the good and the bad state are truth and falsity (for this is
the function of everything intellectual) (navrég Slavontmofi Zépyov); while of the
part that is practical and intellectual the good state is truth in agreement with right
desire (tof) 8e rtpouctucofi Kai Slavontmof) 1‘] dkfieeta ouokon éxouoa tfi opééet
tfi opGfi) (1139a17—31). . . . The function of hoth the intellectualparts, then, is truth
(dudmrépwv 67‘] t6»; vontuccbv uopt’wv dkfieeta to Eépyov, 1139b12).

What is good from the point of view of practical reason is also true, and
what is true from the point of view of theoretical reason is also good.
This means that theoretical and practical reason are the same reason and
it is ‘practical’ (i.e. reason which simultaneously thinks and wills) only in
relation to action—a consequence which Kant drew explicitly. If human
reason is practical reason in so far as it moves (i.e. leads to action), the
reason which God is must also be practical in so far as it moves, and that
means that it must be both thinking and willing, even though Aristotle
does not want to admit it, but must eventually do so when he represents
God as the governor of the world.
The denial of the duality of Is and Ought implicit in the concepts of
entelechy and practical reason is an essential element of the doctrine of
Natural Law. When this doctrine claims to find the norms of right (i. e.
morally good) behaviour in nature—the nature of things or the nature of
man as a rational being—it then expresses the same conception which
Aristotle formulated 1n his concepts of SV’Eekéxeta and voug npaKttKog.
§ III Denial of Duality of Is and Ought 71
III. The Natural Law Theory of Thomas Aquinas

The Natural Law theory of Thomas Aquinas rests on this Aristotelian

foundation, and in Aquinas the theological character of Aristotle’s
philosophy becomes totally manifest. The Aristotelian entelechy appears
unmistakably in the Summa contra Gentiles. There we read (iii 16):
‘Everything is directed by its action to some end (ora’inatur in finem)”
The end of a thing 15 the term of its appetite (appetitus ejus). Now the
appetite of a thing terminates in a good. .The end of a thing 18 its
perfection (perfectio). .Therefore everything 18 directed to good as its
end.’ But this good is God, as it says in iii 17:
If nothing tends to something as its end except in so far as this is good, it follows that
good, as such (bonum in quantum bonum sit), is an end. Consequently, that which is
the supreme good (summum bonum) is supremely the end of all. Now there is but
one supreme good, namely, God. . . . Therefore, all things are directed to the highest
good, namely God, as their end.

Later we read (iii 18): ‘God is the end of things as something to be

obtained (obtinena’um) by each thing in its own way.’ Perfection is the
immanent end of things. There is the Aristotelian entelechy; it is the
work of God. It is God who directs things to perfection: Summa
tbeologica, I, q. 103, a. 1: ‘It is not that the supreme goodness of God
should produce things without giving them their perfection . . . It
belongs to the Divine goodness, as it brought things into existence, so to
lead them to their end.’ If Nature acts purposefully, it is because God
commands Nature to strive for the good as its end, and Nature obeys
God’s command. Therefore, Being is good by its very nature, that is, it is
as it ought to be. ‘Goodness and being are really the same (bonum et ens
sunt idem secundum rem)’ (I, q. 5, a. 1). ‘Hence it cann0t be that evil
signifies being or any form or nature (formam seu naturam)’ (I, q. 48,
a. 1). Is and Ought coincide.
This denial of the duality of Is and Ought shows up particularly
clearly in the doctrine of Natural Law immanent in human nature. The
inclinations inherent in man, implanted in him by God, present
themselves as moral requirements, i.e. as norms. ‘All the inclinations . . .
of human nature . . . belong to the natural law’ (I-II, q. 94, a. 2). They are
commands of Natural Law, because they are determined by practical
reason. Aquinas, following Aristotle, distinguishes between speculative
reason and practical reason (I-II, q. 90, a. 1). The function of practical
reason is to command, to legislate, to posit norms prescribing the good,
prescribingjust behaviour (I-II, q. 17, a. 1; I-II, q. 90, a. 1). Law is a rule
and measure of that which ought to be_done or omitted (I—II, q. 90, a. 1).
But man’s practical reason, in and for itself (secuna’um se), is not this rule
or measure. The rule or measure is the principles impressed on it—
clearly by God (principia ei naturaliter ina'ita: I-II, q. 91, a. 3). Human
72 Denial of Duality of Is and Ought ch. 17
reason is practical norm-positing reason only in so far as it is ruled by
divine reason. Divine reason governs the world according to an eternal
law which we must think of as immanent in this reason. Man, created by
God, possesses reason in so far as he participates in divine reason, from
which he receives the impulse to behave in accordance with eternal law
(I-II, q. 91, a. 1 8C 2) (NOTE 61). What is right agrees with the rule of
reason, and the first rule of reason is Natural Law (rationis autem prime:
regula est [ex natume, I-II, q. 95, a. 2). Natural Law is the participation in
the eternal law on the part of a creature endowed with reason (lex
naturalis nibil aliud est quam participatio legis natume in rationali
creatum, I-II, q. 101, a. 2). The eternal law is the government of the
world by divine reason. But divine reason is identical with the divine will
(I—II, q. 93, a. 4). Thus man’s practical reason is also a willing reason,
because it is legislative. And so the good is the true, and justice is truth:
‘Since the will is the rational appetite, when the rectitude of the reason
(rectitudo rationis) which is called truth is imprinted on the will on
account of its nighness to the reason, this imprint retains the name of
truth; and hence it is that justice sometimes goes by the name of truth’
(II~II, q. 58, a. 4, ad 1um).11

IV. Jeremy Bentham’s Deontology

In metaphysico—theological speculation such as that of Plato, Aristotle,

and Thomas Aquinas, the logical duality of Is and Ought is denied
because in the transcendent realm, in God’s nature, Is and Ought, divine
thought and divine will, ultimately coincide, and so Ought is immanent
in the Is of the world ruled by the absolutely good deity (i.e. value is
immanent in reality). This denial of the duality of Is and Ought is
different from the denial of Ought typical of a rationalistic-empiricist
world—view. The first name to be mentioned in this regard is that of
Jeremy Bentham, who sought to eliminate Ought from ethics in his
Deontology (published posthumously by John Bowring):
The talisman of arrogance, indolence and ignorance, is to be found in a single word,
an authoritative imposture, which in these pages it will be frequently necessary to
unveil. It is the word ‘ought’—ought or ought not, as circumstances may be. In
deciding ‘You ought to do this—you ought not to do it’, is not every question of
morals set at rest? If the use of the word be admissible at all, it ‘ought’ to be banished
from the vocabulary of morals. (i. 31 f.)
Hence the task of the science of morality, for which he coined the name
‘Deontology’, is not to describe norms, i.e. make statements about
11 When Jesus said to Pilate: ‘I was born and came into the world in order to bear witness to
the truth’, by ‘truth’ he meant ‘justice’.
§ IV Denial of Duality of Is and Ought 73
norms, but rather to determine the appropriate means of bringing about
the well-being or happiness which all men in fact strive for:
The understanding and the will are alike operative on the ends of action. The will or
the intention of every man is directed to the obtainment of his well-being.
Deontology is called upon to enlighten the understanding, so that it may guide the
will in its pursuit of happiness, by furnishing the most efficient means. (p. 86)

Bentham’s objection to ‘ought’ is that the answer to the question ‘What

Ought one to do?’ is always an ought-sentence.
‘You ought’—‘You ought not’, says the dogmatist. Why 3 retorts the inquirer—why?
To say ‘You ought’ is easy in the extreme. To stand the searching penetration of a
Why? is not so easy. Why ought I? Because you ought—is the not infrequent
reply;—on which the Why? comes back again with the added advantage of having
obtained avictory. (p. 32)

And in another passage he says: ‘This ought, like other oughts, is a mere
covering for despotic, unsupported assertion . . . . The argument is just
where it was . . . The objection is at best . . . a declaration without a
reason’; it ‘leaves matters pretty much as it found them’ (p. 85). It is true
that an ought—sentence can be founded, if at all, only on another ought-
sentence. But that is a logical necessity and is no reason for eliminating
Ought from ethics. Bentham himself cannot avoid using the word
‘ought’ when he formulates the basic thesis of his ‘Deontology’: ‘Every
pleasure is primu fucie good, and ought to be pursued. Every pain is
primu fucie evil, and ought to be avoided’ (p. 59). His invented word
"deontology comes from the Greek to Béov, which means ‘what ought
to be’, ‘fitting’. Bentham’s deontology is the application of the principle
‘the greatest happiness for the greatest number’.12 This principle is
clearly not a description of the actual behaviour of human beings: it is
not a report that the pleasure which human beings actually want to bring
about by their behaviour is the state of the greatest happiness of the
greatest number. Rather it is a norm: the requirement that they ought to
bring about this state of affairs by their behaviour. This norm is tacitly
presupposed by Benthamite utilitarians, but it hides behind the
questionable thesis that human beings are truly happy when they behave
in such a way that their behaviour 1s the appropriate means of making
them happy.

V. Moritz Schlick’s Conception of Ethics

The so—called logical positivism founded by Moritz Schlick manifests a

12 Bentham’s editor, John Bowring, says in an appendix to vol. i (p. 287): ‘If the intentions of
the Author and of the Editor have been accomplished, this volume will be found to be nothing
but an application of the Greatest—Happiness Principle to the field of morals.’
74 Denial of Duality of Is and Ought ch. 17
conception of ethics quite similar to that of Bentham’s deontology.
Schlick tries to reduce Ought to Is:
‘I ought to do something’ never means anything but ‘Someone wants me to do it’.
And in fact the desire of another, directed upon me, is described as an ought only
when that person is able to add pressure to his desire and thus to reward fulfillment
and to punish neglect, or at least to point out the natural consequences of observance
or neglect. (1939: 110—11)

As was pointed out earlier, this denial of Ought rests on a confusion of

the norm—positing act with the meaning of this act. The ‘desire’ can never
be called an Ought, for it is an Is. It is an Is and not an Ought even when
the norm which is its meaning is made effective by threats of punishment
in the event of non-compliance or promises of reward in the event of
compliance, or by pointing out the consequences of compliance or non-
compliance with the norm. The effectiveness of the norm, its actually
being observed, is not its validity. For a norm’s ‘being valid’ means that it

is not observed. But Schlick believes that a‘ “”norm . .is nothing but a
mere expression of fact; it gives us only the conditions under which an
act or disposition or charaCter 1s actually called‘",go’od that 1s, is given a
moral value. The setting up of norms is nothing but the determination of
the concept of the good, which ethics undertakes to understand’ (p. 15).
If it were a mere reflection of a faCt of reality, the norm would be a
statement about a fact. That a norm is not a statement (and why it is not)
will be explained in more detail later (cf. below, ch. 41); but even if it
were a statement, it could not be the statement that something is, but at
most the statement that something ought to be. But that is a statement
about a norm, and not a norm (cf. below, ch. 41). And it is not the case
that the norm gives the conditions under which something is ‘called’
good, i.e. ‘given a moral value’. A norm does not ‘give’ that under certain
conditions something ought to happen. What is essential is not that a
noun ‘gives’ the conditions of the occurrence, but that it prescribes that a
certain occurrence is obligatory. The statement by which a certain
occurrence is called ‘good’ (i.e. valuated) means that the occurrence
agrees with a norm which prescribes this occurrence to be obligatory.
This is a statement which is different from the norm.
Nor is the norm a ‘concept’ or, as Schlick also says, a ‘definition’. A
concept asserts that if something has the qualities specified in the
definition of the concept, it comes under the concept, i.e. it is what the
concept denotes, and if it does not have these qualities, it does not come
under this concept, i.e. it is not what the concept denotes. The concept
does not assert that something ought to have the qualities specified in the
definition. Whensomething agrees with a norm, this means that it is
good or valuable; and when it does not agree with a norm, this means
§ VI Denial of Duality of Is and Ought 75
that it is bad or has disvalue. When something comes under a certain
concept, this does nOt mean that it is good or bad. A norm can be
‘violated’, but not a concept. The identification of concept and norm is
typically Platonic. Paradoxically, on this point logical positivism and
Platonic metaphysics concur.
Since Schlick misinterprets the norm as an ‘expression of fact’, he
claims that ethics is a ‘factual science’ and that ‘even if ethics were a
normative science, it would nOt cease because of this to be a science of
facts. Ethics is concerned entirely with the actual’ (p. 21). ‘The ultimate
valuations’ are ‘facts existing in human consciousness’. By ‘facts’ Schlick
understands facts belonging to the realm of Is. The facts of human
consciousness in question are acts of thought and will, nOt the meaning
of these acts. ‘Valuations’ are indeed facts of this type, whether one
understands by this term acts of will or acts of judgment (i.e. thought).
But the object of ethics as a normative science is not acts of will or of
thought, but the meaning of acts of will, namely norms, and that means
an Ought. Schlick says: ‘Even as a normative science, a science can do no
more than explain; it can never set up or establish a norm’ (p._ 17). That is
correct; but only because positing a norm is an act of will and not an act
of thought—or more accurately, because a norm is the meaning of an act
of will—and so a norm cannot be the ‘reflection’ of a fact of reality.
From the fact that ethics as a science is cognition, it does not follow that
its object must be that which Is. For the object of cognition can also be
Ought, i.e. norms as the meaning of acts.

VI. Fritz Mauthner’s Reduction of Ought to Is

Fritz Mauthner also tries to reduce Ought to Is (1923: iii, 299). He says
that in logic
the word [‘ought’] has become insolent as in aesthetics and in ethics; reality knows
only the will of the artist, his sensible creations, and traditional aesthetics confronts it
from some holy mountain (Parnassus, for example) with an Ought; the psychological
world of reality knows only man’s will and actions, and ethics confronts it, always
from Sinai, again with an Ought. I am afraid that aesthetics and ethics are still
considered to be serious sciences . . . . (p. 299)
But according to Mauthner, they are only ‘pseudo-sciences’, like
astrology in relation to astronomy. But what confronts man with an
Ought is not a science, especially not ethics, but rather another man—
such as Moses, Jesus, or Muhammad—who commands that people
ought to behave in a certain way, or the other members of the same
society, who will that the person who lives in their community ought to
behave in a certain way and who quite unambiguously express this will,
76 Denial of Duality of Is and Ought ch. 17
the so—called general will, in their reactions to behaviour which agrees or
does not agree with this Ought.
Later Mauthner says: ‘There is no such thing as an ought in the world
of reality; it exists only in judgments or in speech. Creatures without
speech have no oughts’ (p. 343). But the judgments and the speech take
place in the world of reality! When we assume that creatures without
speech have no oughts, it is only because we assume that a creature
without speech cannot will anything, and hence cannot will that another
creature without speech ought to behave in a certain way (NOTE 62).

VII. Felix S. Cohen’s Attempted Reduction of Ought to Is

A characteristic example of an attempt to deny that the opposition

between Is and Ought is irreconcilable and to reduce Ought to Is can
also be found in Felix S. Cohen (1959: p. 115): ‘Certainly, the question
of whether a given thing exists is quite different from the question of
whether that thing ought to exist. But it does not follow from this that
the field of what ought to exist is distinct from the field of what does
exist.’ If the question whether a given thing exists is quite different from
the question whether it ought to exist, how can the field of what
exists not he different from the field of what ought to exist? The
question whether something actually exists falls within the ‘field’ of
Is, and the question whether something ought to exist within the
‘field’ of Ought.
Cohen continues: ‘For the proposition that something ought to exist
may be equivalent to the proposition that something else exists.’ The
sentence ‘something ought to exist’ is not equivalent at all to the sentence
‘something else exists’. The two sentences have wholly different
significations. The sentence ‘something ought to exist’ is a norm (an
Ought) or the expression of a wish or a will; the sentence ‘something else
exists’ is a statement about an Is. It is psychologically possible that the
existence of something the speaker does not want causes him to say that
something else than what exists ought to exist: this is the expression of a
wish. But the expression of the wish that something ought to exist is
totally different from the assertion that something exists. This psycho—
logical connection between the meaning—contents expressed in the two
sentences does not justify the claim that the two sentences are equivalent.
Cohen tries to justify his claim in the following way: ‘Just as the
distinction between being and non—being, valid for any given quality or
relation, is impotent to create distinct realms of being and non-being, so
the distinction between is and ought, valid in a given context, fails to
create distinct realms of fact and value.’ ‘Non-being’ is nOt a realm
different from ‘being’, because ‘non—being’ is not a realm at all. While
§ VII Denial of Duality of Is and Ought 77
non—being is not a realm, Ought definitely is a realm, one distinct
from Is. Furthermore, the opposition of Is and Ought does nOt
coincide at all with Cohen’s distinction between fact and value.
Value—in so far as it consists in some object’s being desired—is a
fact; Cohen himself says so later: ‘Values are facts’ (p. 116). But Ought
can never be a fact.
Cohen continues: ‘Thus the absolutistic hedonist may maintain that
the proposition “Peace ought to exist among nations” is identical with
the proposition “Peace among nations does actually produce a greater
amount of happiness than the alternative, war”’ (p. 115). These two
sentences are not identical at all, not even from the point of view of a
hedonist, who presupposes the following norm to be valid or has the
following wish: All human beings ought to be happy. Even on the
presupposition that peace makes people happier than war, the norm or
the expression of the wish ‘Peace ought to exist among nations’ is
completely different from the statement ‘Peace among nations produces
a greater amount of happiness than war.’
Cohen then says: ‘The ethical relativist will maintain that the former
proposition [i.e. “Peace ought to exist among nations”] is equivalent to
the proposition that somebody has a certain psychological attitude
toward peace or the consequences of peace which he does not have
toward the alternative to peace’ (p. 115 f). These two sentences are not
equivalent either. The second sentence asserts the existence of a mental
process, an act of wishing or willing; but the first sentence expresses the
meaning of this act. The fact that I wish or will something is different
from what I wish or will, i.e. the meaning of my act of wishing or of
willing, that to which my wishing or willing is directed. ‘In either case’,
says Cohen (p. 116), ‘we affirm the equivalence of an ought proposition
with an is proposition that has a different subject, i.e. a complex of
pleasures and pains or a human attitude rather than an international state
of affairs.’ It is clearly incorrect that a sentence which decrees an
international situation to be obligatory is equivalent to a sentence which
Cohen himself admits has a different subject.
Finally Cohen says:
And even those who hold that an ought proposition can never be identical in meaning
with a proposition in "natural terms [Cohen should have said: ‘with is prOposi—
tions’!] do maintain that such identity can be found between the proposition that
something ought to exist and the proposition that that thing does actually have, or
produce consequences which have a peculiar, objective, unanalysable property—
goodness—and that the alternatives to that thing do not have this property in a
similar degree. (p. 116)
The sentence ‘Peace ought to exist among nations’ is not identical with
the sentence ‘Peace is good, but war is not, or is not as good as peace.’
Even granted that the statement ‘Something is good’ means the same as
78 Denial of Duality of Is and Ought ch. 17
‘Something is as it ought to be’, the norm or expression of a wish ‘Peace
ought to exist among nations’ is not identical with the value—judgment
‘Peace between nations is good, but war is not, or is not as good as
peace.’ For the value—judgment ‘Peace is good’ is not a norm, nor is it a
statement about a wish; it is a statement about the relation of peace to a
norm or to a wish, i.e. the statement that peace agrees with a norm or a
wish. There can be no question of an identity. But that is the basis of
Cohen’s position: ‘Ougbt propositions are thus always reducible to is
propositions’ (p. 116).
 18'
Is and Ought in Kant’s Philosophy
It is customary to appeal to Kant’s authority in support of the duality of
Is and Ought, and to quote the well—known passage in the Critique of
Pure Reason:
For whereas, so far as nature is concerned, experience supplies the rules and is the
source of truth, in respect of the moral laws it is, alas, the mother of illusion! Nothing
is more reprehensible than to derive the laws prescribing what ought to he done from
what is done, or to impose upon them the limits by which the latter is circumscribed.
(B 375)
Earlier he says, in connection with the account of the Platonic Ideas in
the Repuhlic: ‘Nothing, indeed, can be more injurious, or more
unworthy of a philosopher, than the vulgar appeal to so—called adverse
experience. Such experience would never have existed at all, if at the
proper time those institutions had been established in accordance with
ideas . . .’ (B 373). What Kant has in mind in the first quOtation is not
strictly the duality of Is and Ought—which is a theoretical issue—but
the question whether the moral legislator—who is a moral philosopher
like Plato, as it appears from the second quotation—ought to take the
actual behaviour of people as his model in shaping the moral laws—that
is, a question of legislative politics, we could say. And Kant’s answer is in
the negative.
No duality of Is and Ought can be found in Kant’s philosophy for the
very simple reason that, for Kant, the moral norm (the moral Ought, the
moral law) emanates from reason in its function as practical reason, the
very same reason whose function it is to know what is. For Kant says
explicitly in the Foundations of the Metaphysics of Morals that practical
reason, the moral legislator, is fundamentally the same as theoretical
reason: ‘I require of a critical examination of a pure practical reason, if it
is to be complete, that its unity with the speculative be subject to
presentation under a common principle, because in the final analysis
there can be but one and the same reason which must be differentiated
only in application’ (iv. 391). But the difference is not only 1n the
application of reason, but is between the essence of theoretical reason
and the essence of practical reason. The former is pure knowing of that
which Is, the latter is a willing whose meaning is the Ought of human
behaviour. Knowing is receptive, willing is productive. Admittedly this
difference is obscured in Kant’s theory of knowledge because knowing
has a constitutive character in his theory in virtue of the fact that the
80 Is and Ought in Kant’s PhiIOSOphy ch. 18

knowledge of theoretical reason transforms the chaos of sensations into

the order of nature, just as practical reason creates the order of morality.
But these two orders are fundamentally different: the former is an order
of Is, the latter an order of Ought. The former is produced by
knowledge, the latter can be produced only by the will (NOTES 63, 6.4)
The self—contradictory concept of practical reason, which is both
knowing and willing, and in which the duality of Is and Ought is
therefore resolved, is the basis of Kant’s ethics (NOTE 65). It is basically
the same concept as the vofig npouctucog of AristOtle (On the Soul III. 10),
and the ratio practica of Thomas Aquinas. This practical reason is in the
final analysis divine reason in man. Kant explicitly says that practical
reason is will: ‘will is nothing else than practical reason’ (iv. 412, FMM).
He equates ‘practical reason’ and ‘will’ when he adds the word ‘will’ in
parentheses after the expression ‘practical reason’ (iv. 441). It is only
because he conceives of practical reason as will that he can represent it as
legislating. He says of practical reason that it ‘commands what ought to
be done’ (vi. 216, Metaphysics of Morals); he refers to ‘what reason
prescribes to us’ (vi. 218). He claims that reason alone prescribes to a
rational being what he ought to will (iv. 460, FMM). A metaphysics of
morals is necessary in order to investigate the sources of ‘the practical
principles which lie in our reason’ (iv. 390). The moral law is valid for all
human beings, ‘inasmuch as it has arisen from our will as intelligence and
hence from our proper self’ (iv. 461). Kant recognizes that norms can be
posited only by an act of will: ‘Laws proceed from the will’ (vi. 226,
MM). Consequently he can maintain his thesis that reason prescribes the
moral law -to man only by identifying reason (as practical reason) with
the will. But on the Other hand, Kant distinguishes between reason as a
faculty of cognition, and will as a faculty of appetite. He speaks of man
as ‘a being having reason and will’ (iv. 395, FMM). Reason and will; n0t
reason as will. Reason as ‘practical faculty’, says Kant, is reason as a
faculty ‘which is meant to have an influence on the will’ (iv. 396). Reason
can influence the will only if they are two different faculties, and not if
they are identical. In the Critique of Practical Reason, he says that in its
practical use“reason deals with the grounds determining the will’ (v. 15).
Thus, even in its practical use, reason is not the will; it ‘deals’ with the
will and with the grounds determining the will, that is, it seeks to know
the will as an object given to it. Elsewhere he says:
The will is therefore the appetitive power viewed in relation to the ground that
determines the power of choice to the action, while the power of choice is the
appetitive power viewed in relation to the action. The will itself has, properly
speaking, no determining ground [in other words, it is free]; in so far as reason can
determine the power of choice, the will is, rather, practical reason itself. (vi. 213,
MM)
‘Only a rational being has the capacity of acting according to the
 Is and Ought in Kant’s Philosophy 81
conception oflaws, i. e. according to principles. This capacity is will. Since
reason is required for the derivation of actions from laws, will is nothing
else than practical reason’ (iv. 412, FMM). Thus the Kantian concept of
practical reason is the result of an unacceptable confusion of two
essentially different human faculties, two faculties Kant himself distin—
guishes (NOTE 66).
The theological background of the concept of practical reason, i.e. the
idea that practical reason as moral legislator is divine reason (in which
knowledge and will, Is and Ought, can be conceived as coinciding) in
man, is obscured in Kant by the principle of the autonomy of morality
which he postulates. But Kant cannOt maintain this principle, since it is
by means of man’s practical reason that he tries to prove the existence of
God as supreme moral legislator. In the Critique ofjudgement, he says:
It is then only as a moral being that we acknowledge man to be the end of creation.
Hence we have . . . one principle applicable to this relation, enabling us to think the
nature and attributes of this first cause considered as supreme ground in the kingdom
of ends . . . With such a definite principle as this, of the causality of the original being,
we shall not have to regard it merely as an intelligence and as legislating for nature,
but as the Sovereign Head legislating in a moral Kingdom of Ends. (V. 444)
Hence it is not from the intelligence of man as will, or human will as
intelligence, that the moral law arises in the final analysis: it is not man
who is the moral legislator, but God, the Primal Being. In the
Foundations of the Metaphysics 0f Morals, we read: ‘The moral ought is
therefore [man’s] own volition as a member of the intelligible world, and
it is conceived by him as an ought only in so far as he regards himself at
the same time as a member of the world of sense’ (iv. 455). For man as an
intelligible being, there is no Ought and so there‘are no imperatives valid
for him, since willing and Ought coincide. But this intelligible being,
whose will is an Ought for an empirical being, can only be God. Kant
also says. ‘Thus no imperatives hold for the divine will or, more
generally, for a holy will. The‘‘ought” is out of place here, for the
volition of itself is necessarily in unison with the law [i. e. with the
“Ought”]’ (iV. 413). If the diVine will is a legislative will, then Ought is
not in the wrong place here but exactly in the right place. But this Ought
coincides with the diVine will, and only with a diVine will. We must think
of God, this Primal Being, ‘as omniscient’, ‘as omnipotent’, ‘as both all—
good and just’, according to the Critique ofjua'gement (V. 444). If God is
conceived of as the supreme moral legislator, then moral duties cannot be
characterized—or at least not adequately—as commands emanating
from man’s own reason; they must be seen as God’s commands, or at
least also as God’s commands. And if man’s practical reason is legislative,
it cannot be the supreme legislator, but only a legislator with delegated
powers from a divine legislator, i.e. the diVine legislative reason in man.
Admittedly Kant says in the Metaphysics ofMorals
82 Is and Ought in Kant’s Philosophy ch. 18
that in ethics, as pure practical philos0phy of the inner legislation, it is only the moral
relations of men to men that are intelligible to us. But the sort of moral relation that
holds, in this reSpect, between God and man surpasses completely the boundaries of
ethics and is altogether inconceivable to us. (VI. 491)
But in the passage quOted above from the Critique ofjudgement he says
we ‘.shall .have to regard’ God as a moral legislator, and 1n Religion
within the Limits of Reason Alone, he says: Morality thus leads
ineluctably to religion, through which it extends itself to the idea of a
powerful moral Lawgiver outside of mankind’ (pp. 5—6), and ‘Religion is
(subjectively regarded) the recognition of all duties as divine commands’
(p. 142). In Adickes (1920: 802) we find the sentence: ‘In moral—practical
reason there is the categorical imperative to see all of man’s duties as
divine commands.’ The commands of practical reason are the commands
of God (NOTE 67).
 19
The Principle ofAutonomy—
Conscience as Moml Authority
Since the moral or legal order valid within a community is never created
by the individual subject for whom this order is valid but arises by way
of custom or—in the case of a moral order—is posited by leading
personalities such as Moses, Jesus, or Muhammad or—in the case of
law—is posited by way of legislation, we can speak of autonomy—as
was indicated previously (cf. above, ch. 12, last paragraph)—only to the
extent that a subject must recognize a moral or legal norm addressed to
him from outside and not posited by himself, in order for it to .be valid
for him. The moral or legal order to be recognized must already have
been created in the way indicated and be valid for other people, and
consequently be heteronomous relative to the subject recognizing the
order. It is only the norm of a heteronomous order which can be
recognized, for a norm does not have to be recognized by a subject who
has just created it. Recognition is an act of will addressed to the
behaviour of the subject recognizing the norm, not in the sense that he
wills to behave as prescribed by the norm which is already created and
valid for others—i.e. he wills to comply with the norm—but in the sense
that he is to behave as prescribed by the norm. If the norm ‘Love your
enemies’ posited by Jesus is valid, then I recognize this norm, not by
resolving to love my enemies (i.e. to comply with the norm), but by an
act of will whose meaning is ‘You, my alter ego, are to love your
enemies. We should recall the difference mentioned earlier (cf. above,
ch. 9. I) between willing to behave 1n a certain way and willing that a
person—oneself or another person—is to behave 1n a certain way, in
Other words, positing a norm prescribing how another person
is to behave or how he himself is to behave. The meaning of the act
of will recognizing the (already existing) norm is a norm posited by the
recognizing subject and addressed to himself. By recognizing the norm
of a heteronomous moral or legal order, a subject posits a norm
prescribing to himself the same behaviour as the norm he recognizes.
This is what is usually called ‘self-obligation’. If we assume that the norm
of a heteronomous normative order is valid for a norm—addressee only if
he recognizes it, then the condition for the validity of the norm is a
double act of norm—positing: the positing of the norm by the external
authority and the positing of the norm recognizing the first norm by the
norm—addressee. Autonomy exists only with respect to the positing by
84 Autonomy and Conscience ch. 19
the norm—addressee; but the positing by the norm—addressee pre—
supposes the positing by the external authority. Autonomy is only a
secondary element within the context of a heteronomous moral or legal
order (NOTE 68). Inasmuch as a moral or legal norm can be applied to an
individual—i. e the individual is praised or criticized, or judgment is
executed against him or punishment is directed against him—even if he
does not recognize the norm being applied, the moral or legal order can
be said to be—relative to this individual—not only heteronomous, but
also objectively valid (cf. above, ch. 13).
Even though the tendency is not completely worked out in his ethics,
Kant’s doctrine of practical reason as moral legislator tends to abolish the
professed duality of Ought and Is (the logical transcendence of Ought
relative to Is) because of the immanence of Ought in Is (the immanence
in human reason of the norms prescribing human behaviour). Thus the
answer to the question ‘What ought I to do?’ is to be found within
oneself. In this respect, the doctrine of practical reason is similar to the
doctrine that conscience is the source of morality. Kant himself says that
conscience is to be found in man’s practical reason.1
The word ‘conscience’ can refer to quite different mental phenomena.
In the first place, to certain emotional reactions to one’s own behaviour;
these reactions are called a ‘bad’ conscience or a ‘good’ conscience. A
‘bad’ conscience expresses itself in the feelings of shame or repentance
experienced when a person is aware of morally bad behaviour, that is, of
having actually performed or having intended to perform behaviour
which he ought nOt to have performed or even intended. We then speak
of ‘pangs of conscience’. A ‘good’ conscience expresses itself in the
feeling of satisfaction experienced when a person is aware of having
actually performed morally good behaviour, that is, behaviour he ought
to have performed.
But the term ‘conscience’—understood as ‘con—science’——is also used
to refer to a kind of knowledge: the knowledge of the being-good or the
being—bad, of the being—obligatory or not—being-obligatory, of one’s
own behaviour, which is expressed in a value—judgment about this
behaviour and which arouses the feeling called a ‘good’ conscience or a
‘bad’ conscience. But the theory that conscience is the source of morality
assumes that it is feeling which is primary, that is, that behaviour is
morally bad because we react to it (when it is our own behaviour) with
feelings of shame or repentance, and that our behaviour is morally good
because we react to it with the feeling of satisfaction, and not vice versa.
It is this feeling, our conscience in the sense of a moral feeling, the ‘voice
of conscience’ in us, which tells us, i.e. which prescribes, how we ought
1 Metaphysics of Mom]: (vi. 400): ‘Conscience is practical reason holding man’s duty before
him, wherever a law is applicable, with a view to either his acquittal or his condemnation.’ On
this point, a typical example is Messer (1925: 81 ff), who calls conscience the ‘decisive tribunal’
for norms of morality.
 Autonomy and Conscience 85
to behave; it is in this conscience that moral norms originate
Consequently there is no need for norms impinging on us from without,
posited by some authority other than ourselves, since moral norms come
from within us. We find them by examining our own conscience. The
theory that conscience is the moral legislator tries to provide a basis for
the autonomy of morality, just as Kant’s theory of practical reason does.
The theory that conscience is the moral legislator fails for the basic
reason that conscience—either as feeling or as knowledge—is unable to
posit norms, since norms prescribing how we ought to behave can only
be the meaning of acts of will. But even if we interpret conscience as a
phenomenon of the will, it follows from the fact that the moral legislator
for each subject is simply his own conscience that no one could judge the
behaviour of Others as morally good or bad. For from the fact that my
conscience prescribes a certain behaviour to me, it does not follow that
another person’s conscience prescribes the same behaviour to him. But
the moral evaluation of other people’s behaviour is an essential—if not
the most essential—function empowered by a moral order, and the most
important condition of its effectiveness. The moral evaluation of other
people’s behaviour presupposes that the members of a given social
community react morally in generally the same way to human
behaviour—their own or that of others. But from the point of view of a
consistent autonomous morality of conscience, there is no reason to
assume that the consciences of all people—or even of all members of one
given social community—react in the same way. If that is in fact what
happens, if the members of'a social community do agree on the whole in
their (moral) evaluation of human behaviour—not only their own, but
also that of others—then this can only be because they live under the
same moral order and as a result of education and imitation this moral
order penetrates their feeling and thinking and therefore expresses itself
as their conscience. How this moral order comes to exist, whether
through custom—as in the case of customary law—or by the acts of the
founder of a religion—such as Moses, Jesus, or Muhammad—is
irrelevant here. Consequently the theory that conscience is the moral
legislator cannOt dispense with norms impinging on men from without,
and the autonomy of morality in the sense of an immanence of norms in
the mental reality of human beings—the denial of the transcendence of
norms and so the denial of the duality of Ought and Is—is untenable. In
fact it is given up by all those defenders of the theory of the morality of
conscience who interpret the voice of conscience as the voice of God in us.2
2 Russell (1960: 224): ‘One of the ways in which the need of appealing to external rules of
conduct has been avoided has been the belief in “conscience”, which has been especially
important in Prorestant ethics. It has been Supposed that God reveals to each human heart what
is right and what is wrong, so that in order to avoid sin, we have only to listen to the inner voice.
There are, however, two difficulties in this theory: first, that conscience says different things to
different people; secondly, that the study of the unconscious has given us an understanding of
the mundane causes of conscientious feelings.’
 20
I5 and Ought in Hume’s Philosophy
Hume is more consistent than Kant on the question of the relation
between Is and Ought. For Hume there is no such thing as practical
reason. As was mentioned earlier, he says: ‘Since morals . . . have an
influence on the actions and affections, it follows, that they cannot be
deriv’d from reason . . . Reason of itself is utterly impotent in this
particular. The rules of morality, therefore, are not conclusions of our
reason’ (Treatise of Human Nature, p. 457) (NOTE 69). ‘Reason is the
discovery of truth or falshood. Truth or falshood consists in an
agreement or disagreement either to the real relations of ideas, or to real
existence and matter of fact. Whatever, therefore, is not susceptible of
this agreement or disagreement, is incapable of being true or false, and
can never be an object of our reason’ (p. 458).
A norm, an Ought, is the meaning of an act of will, and Hume says of
acts of will:
Now ’tis evident our passions, volitions, and actions are not susceptible of any such
agreement or disagreement . . . ’Tis impossible, therefore, they can be pronounced
either true or false, and be either contrary or comfortable to reason . . . Moral
distinctions, therefore, are not the offspring of reason. Reason is wholly inactive, and
can never be the source of so active a principle as conscience, or a sense of morals.
(p. 458)

Thus an Ought cannot be derived from an Is.

In every system of morality, which I have hitherto met with, I have always remark’d
that the author proceeds for some time in the ordinary way of reasoning, and
establishes the being of a God, or makes observations concerning human affairs; when
of a sudden I am surpriz’d to find, that instead of the usual copulations of
propositions, is, and is not, I meet with no pr0position that is not connected with an
ought, or an ought not. This change is imperceptible; but is, however, of the last
consequence. For as this ought or ought not, expresses some new relation or
affirmation, ’tis necessary that it shou’d be observ’d and explain’d; and at the same
time that a reason should be given, for what seems altogether inconceivable, how this
new relation can be a deduction from others, which are entirely different from it. But
as authors do not commonly use this precaution, I shall presume to recommend it to
the readers; and I am persuaded, that this small attention wou’d subvert all the vulgar
systems of morality, and let us see, that the distinction of vice and virtue is not
founded merely on the relations of objects, nor is perceiv’d by reason. (pp. 469—70)
 21
Poincare’s Conception of the
Relation between Science and
Momlity
In support of the thesis that Ought cannot be derived from Is, some
people1 also refer to the French philosopher Henri Poincare, who rejects
the possibility of a scientific ethic:
But there cannot be any immoral science either. For a simple reason, a reason which
is—let us say—strictly grammatical. If both premisses of a syllogism are in the
indicative mood, the conclusion will also be in the indicative mood. For an
imperative conclusion to be possible, at least one of the premisses would have to be in
the imperative mood. Now, the principles of science and the postulates of geometry
are in the indicative mood and cannot be otherwise. This is also the mood of
experimental truths; and all the sciences are founded on nothing but the indicative
mood and cannot be founded on anything else. Thus, the most subtle dialectician can
juggle these principles as he wills, combine them, pile them one on top of the other:
everything he will get from them will be in the indicative mood. He will never get a
sentence which says ‘Do this’ or ‘Do not do that’, i.e. a sentence which confirms or
contradicts morality. (1913: 225)
In other words, from sentences in the indicative mood—i.e. sentences
which assert an Is—no sentences in the imperative mood—i.e. norms—
ever follow. But Poincaré is of the opinion that imperatives can follow
from imperatives, that norms can follow from norms, i.e. that an Ought
can be inferred from another Ought. He says: ‘Moralists want to find a
foundation for morality, as if morality could be based on anything but
itself’ (p. 225——6). Poincare does not call into question the possibility of a
normative syllogism. in which one of the premisses is an is—sentence,
while the other premiss and the conclusion are ought—sentences.
Poincare is not very consistent in the matter of the impossibility of
deriving an Ought from an Is (norms from is—statements). He wants to
defend science against the reproach of immorality; and in doing so, he
ascribes a moral function to science. At the end of his essay he comes to
the conclusion that ‘there is not, and cannot be, any scientific morality in
the strict sense of the word’, but adds: ‘but science can be indirectly a
helpmate of morality; science in the broad sense cannot but serve
morality’ (p. 247). His justification for this function of science is the
claim that a man of science is filled with love for the truth. ‘The passion
I e.g. Moritz (1954).
88 Poincare on Science and Morality ch. 21
which inspires him is love for the truth, and is not such a love a morality
in itself? Is there anything which needs to be opposed more than lying,
because it is one of the most common vices among primitive peoples and
one of the most degrading?’ (p. 230). But the norm against lying is not a
norm posited by science, but a norm of morality; it is the norm which
forbids conscious untruth. And a man of science stands in the same
relation to this norm as anyone else. Within science, truth—value 1s not a
moral but a logical value, 1n so far as the truth of statements can be called
a "value at all, 1.e. something commanded (that 1s, in so far as the logical
principle that only one of two contradictory statements can be true can
be understood as the command—the norm—that one ought to make
only true statements). Morality does not command truth, but truthful—
ness. The opposite of scientific—i.e. logical—truth is error, and this is
not the same as the opposite of moral truthfulness, i.e. lying. A person
fulfils the moral command of truthfulness when he only makes
statements he considers true, even if the statements are not objectively
true. From the point of view of science, it is the objective and n0t the
subjective falsity of a statement which matters. A statement found to be
objectively false 13 replaced, through the scientific process, by one which
is considered true until 1t too is found to be false. The history of science
is just as much the history of errors as of truths, and the errors of science
are no more immoral than the truths of science are moral. Science is
indifferent to the moral value or disvalue of scientific activity and cannot
therefore be considered—directly or indirectly—to be a ‘helpmate’ of
morality or to ‘serve’ morality.
‘The object of science’, says Poincare, ‘is what is general: when faced
with a particular fact, science wants to know the general law, it seeks as
extensive a generalization as possible. At first sight, this appears to be
simply an intellectual habit; but intellectual habits also have their moral
repercussions’ (p. 232). Saying that the intellectual operation of explain-
ing a concrete fact by a general law of nature has a ‘moral repercussion’
amounts basically to saying that a norm can follow from is—statements.
And that is what it amounts to in Poincaré’s own account when he says:
‘Thus, a person will be inclined to subordinate particular interests to
general interests, and that is also a morality’ (p. 232). If the person
accustomed to explaining concrete facts by a general law of nature feels
himself induced to subordinate individual interests to community
interests—i.e. to recognize the moral norm commanding this subordina—
tion—he must believe' that from the statement ‘A concrete fact is
determined by a general law of .nature’ there follows the norm that a
person ought to subordinate individual interests to community interests,
or that there exists a connection of some sort between the statement and
the norm: this is clearly an error, and science does not make any such
claim. Consequently, science cannot be a helpmate of morality, nor can
it ‘serve’ morality.
 22
The Object ofNowns: Hmnnn
Behaviour
The object of a norm (that which the norm prescribes or decrees to be
obligatory) is the behaviour of a being endowed with reason and will,
that is—according to present—day views—human behaviour. For a norm
is to be observed and applied. Thus there is no point in positing a norm
unless it is addressed to a being which can understand this meaning—
content and be willing to behave in accordance with it (even if the
objective validity of the norm is independent of the addressee’s
knowledge of the norm in a concrete case).
Admittedly, the foregoing seems to be true only of the social orders of
civilized peoples, since in primitive societies the behaviour of animals,
plants, and even inanimate things is regulated by the legal order in the
same way as that of human beings. Thus we read in the Bible that an ox
which has killed a human being is to be killed (clearly as a punishment).1
In Classical times there was in Athens a special court in which an action
could be brought against a stone or a spear or any other object by which
a human being had been killed, presumably unintentionally.2 And even
in the Middle Ages it was possible to prosecute an animal such as a bull
which had caused the death of a human being, or locusts which had
destroyed crops. The accused animal was condemned by process of law
and executed just like a human criminal.3 This norm—content, absurd
according to present—day views, must be attributed to the animistic idea
that not only human beings but also animals and inanimate objects have a
‘soul’, and so there is no basic difference between them and human
beings. This is also the reason why in Genesis God’s act of creation is
represented as a command addressed to, and obeyed by, Nature (which
does nOt exist yet, or at least exists only in the spirit of God). ‘And God
said, Let there be light: and there was light . . . . And God said, Let there

1 Exod. 21: 28—9. The passage reads: ‘If an ox gore a man or a woman, that they die: then the
ox shall be surely stoned, and his flesh shall n0t be eaten; but the owner of the ox shall be quit.
But if the ox were wont to push with his horn in the past, and it hath been testified to his owner,
and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned,
and his owner also shall be put to death.’ The passage is part of the determination of punishment
for killing and causing injury, a few lines after the words ‘Eye for eye, t00th for tooth, hand for
hand, f00t for f00t’, the Biblical formulation of the principle of retribution.
2 Cf. Demosthenes, Against Aristocrates, 76; Plato, Laws, 873e—4a; Aristotle, Constitution of
Athens, ch. 57.
3 Cf. Amira (1891).
9O Object of Norms ch. 22
be a firmament in the midst of the waters, and let it divide the waters
from the waters . . . and it was so’ (Gen. 1: 3, 6—7).
Though modern legal orders regulate only the behaviour of human
beings and not that of animals, plants, or inanimate objects, this does not
mean that they do nOt prescribe human behaviour towards animals,
plants, and manimate objects Thus, killing certain animals or damaging
certain species of plants or historically significant buildings can be
forbidden and subject to punishment. But these legal norms do nOt
regulate the behaviour of the animals, plants, and inanimate objects
protected in this way, but that of human beings.
It should be nOted that the object of a norm (i.e. that which the norm
prescribes) is human behaviour and not—as is often believed—the
whole human being. Someone who says that the norms of morality or
law are directed to human beings or that human beings are subject to
these norms is considering the psychological aspeCt of norms. The
human being is the addressee of the norm, i.e. the subject of the
behaviour prescribed by the norm. From the point of view of cognition
directed to the object of norms, it is nOt the human being as a specific
living being which is considered, but only a very specific
behaviour of that human being, and it is only with respect to this very
specific behaviour that a human being 1s ‘subject’ to a normative order as
the subject of a duty, a power, or a positive permission. It is nOt the
person himself, but a very specific behaviour of the person which agrees
with or contradicts—as it is usually put—the norm. And if the value—
judgment that something is ‘good’ or ‘bad’ means that something agrees
with or contradicts a norm, then being ‘good’ or ‘bad’ is not~or not
directly—the property of a human being, but of a certain human
behaviour. A human being is good or bad only in so far as his behaviour
is good or bad, i.e. agrees with or contradicts a norm (NOTE 70).
It should also be noted that a human being can appear not only as the
subject but also as the object of human behaviour. In a norm forbidding
theft, the human being whose behaviour is forbidden is the subject of
this behaviour; in a norm commanding that thieves be punished, the
human being whose behaviour is commanded is the subject of this
behaviour, but the human being who is to be punished—or in general,
the human being against whom the sanction is directed—is the object of
the commanded behaviour. In the norm forbidding murder, the human
being whose behaviour is forbidden is the subject of this behaviour. But
since murder is the intentional killing of another person, the norm also
concerns this other person who is the object rather than the subject of
the forbidden behaviour. In so far as the behaviour which constitutes the
object of the norm and is decreed to be obligatory by the norm concerns
a person other than the person whose behaviour agrees with or violates
the norm, then a human being as such, and nOt merely his specific
 Object of Norms 91

behaviour, appears in the content of the norm, but not as its object. Only
human behaviour is the object of a norm. The content of the norm can be
the human being as such, but also—at least immediately—something
other than a human being, since the behaviour decreed to be obligatory
in the norm can concern something other than a human being, for
example, when a norm forbids the killing of certain animals or
commands the destruction of a house to prevent a fire from spreading to
Other houses. The person it is forbidden to kill or against Whom a
coercive act is to be directed as a sanction stands in the very same relation
to the normative order as the animal it is forbidden to kill or the house
which is to be destroyed to prevent a fire from spreading to other houses.
 23
The Human Behaviour Included
in a Norm: External or Internal,
Action or Omission, but always
Social Behaviour
The behaviour which forms the object of a norm can be external or
internal. The moral norm ‘Love your neighbour’ commands not only
external behaviour, but also—and mainly—internal behaviour. If we
understand by ‘murder’ the intentional causing of the death of another,
then the norm ‘You are not to kill’ commands both external and internal
behaviour.
The behaviour can be an active ‘doing’—i.e. an action—or a passive
omission. We can speak of an ‘omission’ only in relation to a very
specific action. It is only a very specific action which can be omitted. A
norm which commands a certain action forbids the omission of this
action. A norm which commands the omission of a certain action forbids
this action. ‘Love your neighbour’, ‘Refrain from hating rather than
loving your neighbour.’ ‘Do not lie’, ‘Refrain from lying.’ The
prohibition of an action is the commanding of its omission. The
commanding of an action is the prohibition of its omission.
Since the linguistic symbol for the omission of a certain action is the
same as the symbol for negation (i. e. the word ‘no’—t) ‘Refrain from
lying’ is the same as ‘Do n0t lie’—it is tempting to consider an omission
as a negation. But this IS wrong. The omission of an action is not the
negation of the action, and the commanding of the omission of an action
is not the negation of the commanding of the action. The only thing
which can be negated is a judgment (either a completed or an attempted
judgment). As Sigwart emphasizes, negation makes sense only in the
realm of judgments: ‘If not-A were a real negation, the idea A must be
denied of something, and so pass, either expressly or tacitly, into a
judgment’ (1895: . 135). Commands are nOt judgments. And most
impozrtantly a negation is meaningful only relative to an attempted
positive statement (i. 156) It implicitly presupposes a positive assertion
or refers to a positive assertion which actually occurred. The judgment
‘A does nOt lie’ makes sense only as the negation of the judgment ‘A lies.’
But the norm ‘Do nOt lie’ (‘Refrain from lying’) is nm the negation of the
 Human Behaviour Included in a Norm 93

norm ‘Lie!’ It makes sense even if a norm ‘Lie!’ did not precede it or is
not presupposed (NOTE 71). It 18 not idiomatic to speak of the omission
of an omission. The omission of the omission of an action is simply the
cation. In this respect there is indeed an analogy between omission and
negation. The negation of a negation is an affirmation; the passive
omission of a passive omission is a positive action.
Since morality and law are social orders, and can arise only within a
society, the behaviour which constitutes the object of the norms of
morality and law is the behaviour of human beings who—directly or
indirectly—have relations with other human beings in that they affect
their interests directly or indirectly. This relation of one person’s
behaviour to one or more Other persons can be individual, as in the case
of norms prohibiting murder, theft, or fraud, or commanding that
promises be kept. But it can also have a collective character; it can
involve behaviour which furthers or harms the interests of the
community, as in the case of norms commanding bravery or military
service, or forbidding treason. But the norms which prescribe behaviour
towards another person also serve—indirectly—the interests of the
community. The behaviour prescribed by the norms of a modern moral
or legal order can concern animals, plants, and inanimate objects—at least
directly—as the examples mentioned earlier indicate. But what is
important even in these cases is the—indirect—relation of the required
behaviour to the interest the community has in these objects. This
interest can be religious, where so—called ‘sacred’ animals, plants, and
objects are concerned, that is, things believed to stand in some relation to
the deity and so whose injury or destruction is believed to have bad
consequences for the community.
The social character of morality is sometimes questioned on the
grounds that a person has duties to himself, that is, that there are valid
norms which prescribe behaviour towards oneself, such as the com—
mandment of chastity or the prohibition of suicide. But even these
norms occur in the consciousness of people who live in society.
Admittedly, the person’s behaviour specified in the norm is concerned
immediately with that person, but mediately it is concerned with Other
people belonging to the community. And it is precisely this mediate
relation to the community—the fact that the behaviour in question
serves or harms community interests—which is decisive for the
behaviour’s being the object of a norm. Even so—called duties to oneself
are social duties, that is, the function of norms which prescribe
behaviour of one human being with respect to other human beings.
 24
The Condition and Effect of
Haman Bebavioar a5 Content of
Norms
If human behaviour is called the object of a norm, it is in the sense that
human behaviour is decreed to be obligatory in the norm. As was
indicated previously, this does not mean that the norm is concerned only
with human behaviour. Since the norms of positive morality or positive,
law always prescribe a certain human behaviour only under certain
conditions, they are concerned with these conditions; and these
conditions can be human behaviour as well as facts other than human
behaviour. The condition can be some previous behaviour of the same
person whose behaviour is prescribed as the consequence, e.g. in the
norm ‘If someone sins, he is to repent.’ But the condition can also be the
behaviour of another person than the one whose behaviour is prescribed,
e.g. in the norm ‘If someone commits theft, a judge is to punish him’ or
‘If someone lies, the Other members of his community are to disapprove
of his behaviour ’ But the condition can also be a fact other than human
behaviour, e. g. in the moral norm ‘If someone is suffering, you are to try
and alleviate his suffering’, or in the norm ‘If someone is in need as a
result of a natural disaster, you are to help him if you were spared
by the disaster’, or in the norm ‘If someone is socially dangerous as a
result of mental illness, he is to be forcibly interned.’
But a norm can be concerned not only with the condition for the
behaviour prescribed in the norm, but also with the possible or actual
effect of some behaviour. The norm that commands refraining from
murder commands refraining from behaviour which has or can have the
death of another person as its intended effect. It is concerned with the
death of a human being, and this is not behaviour but rather a
physiological fact.
It should be noted that in a norm posited by a human act of will—such
as ‘If someone commits theft, he is to be punished with imprisonment’—
it is always only the human behaviour subject to the condition—in this
case, the punishing—which is decreed to be obligatory, and not the
condition or the effect of the behaviour. It makes no sense to command
or prohibit anything other than human behaviour, for example, natural
events such as rain or earthquakes. Belief in such norms presupposes an
 Condition and Effect of Behaviour 95

animistic conception, i.e. the idea that the things whose behaviour is
commanded or forbidden are anthropomorphic, that they have souls,
that they are endowed with understanding and will and so can comply
with the norms (NOTE 72).
Some people might say that the norm which orders the judge to punish
a murderer with death says ‘If in the real world a person intends by his
behaviour to bring about the death of another person, and if his
behaviour does bring about the other person’s death, then in the real
world the judge is to punish by death the person who behaved in this
way. ’Thus the norm is said to mm at a fact, i. e. actually existing
behaviour 1n agreement with the norm, existing behaviour which can
occur only 1n the real world. But the assertion that the norm aims at
behaviour which agreess with it means—as was shown in another
context (ch. 2, above)—that by means of an act occurring in the real
world (i.e. the act of positing the norm) the person positing the norm
seeks behaviour which agrees with the norm, i.e. wishes to cause in the
real world that the norm—positing act be the means' to this end. This
assertion concerns an event which takes place in the real world: a means—
end relation, which is a causal relation between two facts. But this
relation is irrelevant for cognition of a norm, i.e. of the Ought which is
the meaning of this norm—positing act.
 25
The Functions ofNorms:
Commanding, Permitting,
Empowering, Derogdting
I. Commanding and Prohibiting: The Same Function Relative to
Different Objects

The specific function of a norm is to command a certain behaviour. ‘To

command’ is synonymous with ‘to prescribe’ (as opposed to ‘to
describe’) (NOTE 73). Describing is the meaning of an act of cognition;
prescribing IS the meaning of an act of will. A person describes something
by stating how 1t is, a person prescribes something—especially a certain
behaviour—by expressing how 1t ought to be (NOTE 74).
We distinguish linguistically between commanding and prohibiting.
But they are not two different functions, but rather the same function
relative to different behaviour: an action and the omission of this action
(NOTE 75). Every prohibition can be represented as a command. For
instance, the prohibition ‘One is not to steal’ as the command ‘One is to
refrain from stealing.’ But every command can also be represented as a
prohibition. For instance, the command ‘One is to speak the truth’ as the
prohibition ‘One is not to lie’, i.e. refrain from speaking the truth. The
sentence ‘It is commanded to obey one’s parents’ is equivalent to ‘It is
forbidden to disobey one’s parents.’ Every prohibition of a given
behaviour is the commanding of the omission of this behaviour, and
every commanding of a given behaviour is the prohibition of the
omission of this behaviour.
The concept of behaviour includes bOth actively doing and passively
refraining from doing. If we consider only actively doing something,
then we must distinguish between commanding this action and
prohibiting it, and if we cOnsider only passively refraining from doing
something, then we must distinguish between commanding this omis-
sion and prohibiting 1t; and so we have the 1mpression that there are two
different functions. But the object of a norm—i. e. behaviour—is not
limited to positive action. If we correctly characterize the object of a
norm as ‘behaviour’, this eliminates the need to distinguish between
commanding and prohibiting.
§ 111 Functions of Norms 97

II. ‘Ought’ as the Expression for All Normative Functions

Commanding is not the only function of norms. A norm can nOt

only command a certain behaviour; it can also empower someone to
behave in a certain way, and finally it can repeal the validity of another
norm, i.e. derogate another norm. But permitting is also considered a
normative function. If a norm is understood as a certain meaning (or
meaning—content) and if this meaning is said to be that something ‘ought’
to be or ‘ought’ to happen—especially that a person ought to behave in a
certain way—then the word ‘ought’ is being used in a broader sense than
is usual. According to common usage, ‘ought’ corresponds only to
commandingg‘can’corresponds to empowering and‘may’ to permitting.
We say ‘He “ought”’ only of the person to whom something is
commanded; we say ‘He “may”’1 of the person to whom something is
permitted and ‘He “can” ’ of the person empowered to do something. If
we say that even an empowering norm decrees an ‘o’ught and that an
‘o’ught obtains even in the case of a permission—since empowering and
permitting are essentially related to an Ought—then the word ‘ought’
expresses the three normative functions (commanding, empowering, and
permitting).

III. Commanding is a Different Function in Law and in Morality

There is an important difference between law and morality with respect

to the function of commanding (Cf. The Pure Theory of Law((1967)
59 ff. ). A positive legal order commands a certain behaviour by attaching
a coercive act as a sanction to the opposite behaviour, or more precisely,
by decreeing a coercive act to be obligatory in the event of this
behaviour, in the sense that it empowers the performing of this coercive
act. A debtor is legally commanded to repay a loan to a creditor for the
very reason that if the debtor fails to repay the loan forcible execution is
to be carried out upon his assets, in the sense that a law—applying organ is
empowered to order such a forcible execution. It is legally commanded
not to commit theft for the very reason that if a theft occurs the thief is to
be punished, in the sense that the law—applying organ is empowered to
inflict a punishment. If the legislator were to command that loans be
repayed or to forbid committing theft, without attaching a sanction to
the non—repayment of loans or the commission of theft, he would merely
be expressing a legally irrelevant wish; the repayment of loans and the
avoidance of theft would not be legally commanded.
1 Bolzano (1972: 192): ‘When there is no obligation which interdicts a certain action, then we
say that it IS permisszble. Hence, the permissibility of an action is the non—obligatoriness of its
omission.’
98 Functions of Norms ch. 25

It is true that a moral order—as we shall see—also attaches a sanction

to the behaviour 1t prohibits, namely disapproval of this behaviour on
the part of members of the community. But there is no essential
connection between the prohibition and the sanction. Lying is nOt
morally forbidden for the very reason that lying is to be disapproved of
by members of the community; but lying 1s forbidden and furthermore
the members of the community are commanded to disapprove of lying
(NOTE 76).

IV. Permitting in a Negative Sense and in a Positive Sense

The term ‘permitting’ can refer to different situations. The statement

‘This behaviour is permitted’ can mean that this behaviour is not the
object of any norm, especially, that this behaviour is neither forbidden
nor commanded, i.e. that neither this behaviour nor its omission is
commanded by a norm. In this sense, ‘being—permitted’ has a purely
negative signification. To say that some behaviour is ‘permitted’ in this
sense is to say that there is no valid norm which commands, forbids,
positively permits, or empowers this behaviour. ‘Permitting’ in this
negative sense is therefore nOt the function of any norm. There exists no
‘permitting’ in this negative sense as the function of a norm; there exists
only a being-permitted as the property of behaviour which is not the
object of any norm: e.g. breathing, thinking. In such cases we also say
that the behaviour is ‘free’: ‘Thoughts are free.’ In this purely negative
sense, a certain behaviour has the property of being permitted only when
there is no valid norm which commands this behaviour or its omission.
That a certain behaviour is permitted can also mean that the validity of
a norm prohibiting this behaviour (or commanding its omission, which
amounts to the same thing) is repealed by another, derogating, norm, so
that this behaviour is no longer forbidden (or no longer commanded, as
the case may be). We then say that this behaviour is permitted. For
example, if entering onto a piece of land is forbidden by a 'legal norm
under pain of punishment (or, and this comes to the same thing, if
refraining from entering onto this piece of land is commanded) and the
validity of this legal norm is repealed by a later derogating norm, then
entering onto this piece of land is now permitted. The derogating norm
makes entering onto the piece of land a free act. Here we have a case of
permitting in a positive sense. Permitting in a positive sense also obtains
if the validity of a norm prohibiting a certain behaviour (i.e. command-
ing the omission of this behaviour) is restricted by another, derogating,
norm. For example, a norm prohibits killing human beings (i.e.
commands refraining from killing) and another norm restricts the
validity of this norm by making an exception for cases of self-defence.
§V Functions of Norms 99
Killing in self—defence 13 then permitted or free. Or a general moral
norm prohibits lying (i. e. commands refraining from lying). But its
validity 1s restricted by a norm which creates an exception for physicians
who are asked by their patients about the nature of their illness. It 18 then
permitted or free for physicians to deceive their patients about the
incurable nature of their illness. In these cases, ‘permitting’ is a function
of a norm, that is, of the norm which repeals or restricts the validity of
the earlier norm, in other words, of a derogating norm. Hence it is
correct to characterize permitting positively as making something
free, unlike negative permitting: behaviour which is permitted in the
negative sense of ‘permitted’ is. free, but not made free. The
normative function of permitting positively is reducible to the function
of derogating, that is, it is reducible to a repealing or restricting of the
validity of a norm prohibiting a certain behaviour. Permitting in a
positive sense is not the direct function of the norm repealing or
restricting the validity of another norm; but it is its indirect function
since a certain behaviour’s being permitted is the consequence of the fact
that the prohibition of this behaviour (i.e. the commanding of the
omission of this behaviour) has been repealed or restricted.
One can neither comply with nor violate such a permission; one can
only make use of it or decline to make use of it. This does not imply that
there are no permissive legal norms2 For it is not essential for a legal
norm that it be open to observance and violation. Only legal norms
which command (or forbid, as the case may be) a certain behaviour can
be observed or violated by the behaviour of those subject to the norm;
this is not possible with derogating norms, i.e. norms which repeal or
restrict the validity of Other norms.

V. Being—permitted and Being-commanded

There is a relation between permitting (in either the negative or the

positive sense) and commanding or prohibiting. For—as has already
been indicated—a certain behaviour is permitted in the negative sense if
it is neither forbidden nor commanded; and it is permitted in the positive
sense if the validity of a norm which commands it is repealed or
restricted. In either case behaviour which is permitted—in either the
negative or the positive sense—is not forbidden. If we must consider
‘commanding’ and ‘permitting’ as two different normative functions,
then it is undeniable that being—permitted and being—commanded are
mutually exclusive. If a certain behaviour is only permitted, then it is not
2 As Mayo claims (1957: 167 and 174). He bases his claim on the fact that permissions cannOt
be observed or violated: ‘Permissions cannot be obeyed or defied; the most we can say seems to
be that one can “take advantage of” a permission.’
100 Functions of Norms ch. 25

commanded; if it is commanded, then it is nOt permitted. But it is

claimed by some that whatever is commanded is also permitted.’ If a
certain behaviour is permitted, then a person can make use of, or decline
to make use of, the permission. A person has the choice of behaving or
not behaving in the way permitted. If behaviour which 1s commanded
were also permitted, then a person would both have a choice and not
have a choice of behaving or not behaving in the way commanded (and
permitted as a result). The assumption that what is commanded is also
permitted also has the consequence that since one can observe or violate
a command, one could also observe or violate the permission which the
command represents. But one can neither observe nor violate a permission:
one can only make use of it or decline to make use of it (NOTE 77).
If a behaviour is permitted in the negative sense, i.e. is free
(because it is neither commanded nor forbidden), neither this behaviour
nor its omission can violate a norm. If a behaviour is permitted in the
positive sense because the validity of a norm prohibiting this behaviour
(i.e. commanding its omission) is repealed or restricted by another norm,
this permitting norm cannot be violated. If entering onto some piece of
land is permitted in virtue of the fact that the validity of the norm
prohibiting entry (i.e. commanding the omission of this act) is repealed,
then the person who makes no use of this permission does not violate in
any way the permission granted to him by the law. If the norm
prohibiting the killing of human beings (i.e. commanding the omission
of killing) is reStricted by a norm making an exception for, and thus
permitting, killing in self—defence, a person who does not kill a human
being in self—defence does not violate the norm permitting killing in self—
defence (NOTE 78).
Just as commanded behaviour is sometimes said also to be permitted,
prohibited behaviour is sometimes said to be not-permitted. People say
‘Valid law does not permit a man to marry a woman if he is already
married; bigamy is not permitted.’ That is equivalent to ‘Valid law
prohibits a man from marrying a woman if he is already married; bigamy
is forbidden.’ But this terminology is misleading. It leads to the belief
that what is commanded is also permitted. For if forbidden behaviour is
not permitted, people assume that commanded behaviour is also
permitted. But this is wrong, as was shown. It is advisable that
commanding (including prohibiting) and permitting be clearly distin-
guished, even in everyday usage.
Another incorrect belief is that it is only permitted—i.e. nOt
forbidden—behaviour which can be commanded. It is true that the same
norm which prohibits a certain behaviour cannOt also command it, but it
3 A typical example of the View that commanded behavioui 18 also always ‘permitted’ is that
of Garcia Maynez (1959).
[Translator’ 5 Now: The German text has ‘commanded, but this IS probably a mistake for
‘permitted’ .]
 § VI Functions of Norms 101
is perfectly possible for the same behaviour to be forbidden by a valid
norm and commanded by another simultaneously valid norm. A conflict
of norms will then exist, and the existence of conflicts of norms cannot
be denied.5

VI. ‘Whatever is not Forbidden is Permitted’

It is customary to say of a positive legal order: ‘Whatever is not

forbidden is permitted.’ If ‘being—permitted’ has the negative signific—
ation of being neither commanded nor forbidden, then this rule is
incorrect, for it is a contradiction to say ‘Whatever is not forbidden is
neither commanded nor forbidden.’ A positive enactment of the rule is out
of the question. If ‘being—permitted’ has the positive signification defined
above (i.e. something is permitted in this sense if it is nOt forbidden), the
rule amounts to the tautology ‘Whatever is nOt forbidden is not forbidden.’
Any enactment of the rule by the legislator is therefore superfluous.
But could the legislator enact the rule ‘Whatever is not permitted is
forbidden’?6 Since the normative function of permitting (in a positive
sense) consists in the repeal or restriction of the validity of a norm
forbidding a certain behaviour, the rule in question presupposes a norm
posited by the legislator prohibiting every behaviour unless permitted by
the legislator, that is, unless the validity of the general prohibition is
restricted with respect to all possible actions and omissions the legislator
intends to permit. This is theoretically imaginable, but practically it is
nOt feasible.
Some people believe that the rule ‘Whatever is not permitted is
forbidden’ is not applicable generally, but only to the law—creating and
law— applying acts of legislative, judicial, and administrative organs. This
is incorrect. The creation and application of law are not ‘permitted’
either in the negative sense of ‘not commanded’ and ‘not forbidden’, or
in the positive sense of a repeal or restriction of the validity of a legal
norm prohibiting the creation and application of law. Certain organs are
empowered to create and apply law; they are nOt permitted to do so; and
empowering is a different normative funCtion from permitting (in a
positive sense).7
5 Cf. the discussion concerning the application of the logical principle of contradiction to
norms, ch. 57, below.
6 Garcia Maynez (1959: 209): ‘Sometimes the legislator enacts the rule that whatever is not
exp1essly forbidden is implicitly permitted, and sometimes on the contrary, he declares that
what 15 not expressly permitted is implicitly forbidden.’
7 P. T. Geach distinguishes between 1mperative and permissive principles, and gives as an
example of a permissive principle the provision which allows’ the monarch to punish or pardon
a traitor (1958: 50). This is not a case of permitting, but of empowering. In discussions about the
problem of a logic of norms the normative function of empowering is ignored as it is not
distinguished from that of permitting. This is particularly true of the writings of von Wright,
CaStafieda, Tammelo, and Wedberg.
 26
Empowering: Conferrmg the
Power to Posit and Apply Norms
I. The Signification of Empowering

The normative function of empowering means: conferring on an

individual the power to posit and apply norms. A moral norm empowers
a father to issue commands binding on his child. A legal norm empowers
certain individuals to create legal norms or to apply legal norms. In such
cases we say that the law confers a legal power on certain individuals.
Since the law regulates its own creation and application, the normative
function of empowering plays a particularly important role in law. Only
individuals on whom the legal order confers this power can create or
apply legal norms.

II. Non-empowered Acts are Void

An individual who is not empowered thereto cannot create or apply law.

Objectively his acts do not have the character of law—creation or law—
application, even if they are performed subjectively with this intention.
Their subjective meaning is not their objective meaning. These acts
have—as we say—no legal effect; they are void, i.e. they do not exist
legally.
Consequently, they do not ‘violate’ any valid legal norm. Such would
be the case if the performing of these acts were legally forbidden, i.e.
were the condition for a sanction. They would then violate this
prohibiting norm. If an individual or a group of individuals issues an
order (with a threat of harm) to other people—e.g. certain merchants—
to hand over part of their profits, without being empowered by the legal
order to do so, then this act does not have the meaning of a statute, but
the character of the crime of extortion. If a so-called Vehmic court
condemns a person to death because it considers him to be a traitor to the
Fatherland, and this so—called judgment is executed, then these acts are
not a judicial decision or the execution of the death penalty, but are
objectively the crimes of conspiracy to murder and of murder. These acts
are forbidden as crimes. But their being forbidden is something distinct
from their not being empowered. Their not being empowered does not
§ IV Empowering 103
make them into forbidden acts. For it need not be the case that every act
performed by someone with the intention of positing a binding norm
even though he does not have the power to do so is forbidden.
Someone may, with the intention of positing a binding norm, order all
mankind or the group of people he leads to refrain from sexual
intercourse. This act of commanding may be neither legally nor morally
forbidden, and yet objectively it does not have the meaning of a moral or
legal norm. The man who, without being empowered by any moral or
legal order, prohibits sexual intercourse to all people or a specific group
of people does not violate any legal norm. But the prohibition he issues is
not objectively valid within any existing moral or legal order.

III. Empowered Acts: Commanded or Not Commanded

The act empowered by a moral or legal norm can also be commanded,

but need not be. It is only when it is also commanded that its omission is
immoral or illegal. The legislative organ is empowered by the constitu-
tion to posit general legal norms, but as a rule it is not commanded to do
so. By nOt making use of the power, the legislative organ does nOt violate
the law. Judges are empowered by statutes to apply general legal norms
to concrete cases. As a rule they are also commanded to do so. A judge
violates the duties of his office if he refrains from making use of his
power in a concrete case: he acts illegally.
The non-empowered exercise of functions which would be legal
functions if empowered can be prohibited and hence illegal, but need not
be. It can be forbidden—though need nOt be—to adjudicate legal
disputes without being empowered to do so by the legal order. If it is
forbidden, then the non—empowered acts are not only legally ineffective,
but also illegal. But the so—called Vehmic court mentioned earlier does
nOt violate the law because its action is not empowered, but because it is
forbidden as conspiracy to murder and as murder.

IV. Empowering Implies Commanding

The normative function of empowering is different from the two

normative functions of permitting and commanding. But empowering
can imply a command. This is so if the power is that of positing norms. If
a moral norm empowers a father to issue orders to his child, it thereby
commands the child to obey his father’s orders. If a norm of the
constitution empowers the legislative organ to posit general legal norms
binding on those subject to the law, it is not only the legislative organ’s
competence to posit general legal norms which is based on the
104 Empowering ch. 26
constitution, but also the binding nature of these norms for those subject
to the law. For by empowering the legislative organ to enact statutes
binding on the subjects of the law, the constitution empowers the
legislator to make the subjects’ behaviour which does not agree with the
statutes the condition for sanctions and thereby make the statutes he
enacts binding on the subjects of the law. Thus the subjects are bound in
the last analysis by the constitution itself—not immediately, but through
the intermediary of the sanction—decreeing statutes empowered by the
constitution. In Other words, they are commanded by the constitution to
comply with the statutes. In this way, the norm empowering the father
or the legislator performs two different functions concerning two
different subjects. The first norm mentioned above decrees (1) that the
father can issue orders to his child, (2) that the child is to obey his father’s
orders. The second norm decrees (1) that the legislative organ can posit
norms, (2) that pe0ple whose behaviour is regulated by these norms are
to comply with them. The father and the child do not stand in the same
relation to the norm: it is addressed to the father and empowers him to
issue orders to be obeyed by his children, but it commands the child to
obey his father’s orders. The legislative organ empowered by the
constitution to posit binding general norms does not stand in the same
relation to the constitution as the people who are commanded to comply
with the statutes. On the other hand, the moral norm empowering
people to approve of the moral behaviour and to disapprove of the
immoral behaviour of others does n0t imply any command. But if a
court empowers an execution—organ to perform a coercive act (punish-
ment or execution of judgment), the performance of this coercive act is
also commanded if there 13 a valid legal norm attaching to the failure to
perform the coercive act a sanction against the execution—organ.

V. Empowering and Positively Permitting; Observance and

Application of Norms

The difference between the function of commanding (or prohibiting) on

the one hand and the functions of permitting (positively) and empower—
ing on the other hand is expressed in the difference between observing
(or violating) a norm and applying a norm.
A person who behaves as a norm commands—who refrains from lying
or who keeps his promises—observes the relevant moral norm: his
behaviour is evaluated as moral or good. The person who lies or fails to
keep his promises violates the relevant moral norm: his behaviour is
evaluated as immoral or bad. The person who praises someone whose
behaviour 18 morally good and criticizes someone whose behaviour 13
morally bad applies a moral norm. So does the person who makes use of
§V Empowering 105
a permission granted to him by a moral order, such as a physician who
lies to deceive a patient about the incurable nature of his illness.
The person whose behaviour is the condition for a sanction decreed in
a legal norm violates the law: his behaviour is evaluated as being ‘con-
trary’ to the law, as ‘un—lawful’. The person whose behaviour avoids the
legal sanction observes the law: his behaviour is evaluated as being ‘in
accordance with’ the law. The plaintiff or the public prosecutor who
requests the judge to order a sanction, and the judge who orders a
sanction, and the execution—organ which executes the ordered sanction,
all apply the law. Only those who can observe a norm can violate it. In
other words: only a norm which commands (or prohibits) a certain
behaviour can be observed or violated.
 27
Derogation: The Repeal of the
Validity ofa Norm [93/ another
Norm

I. The Concept of Derogation

A very particular normative function is that which consists in the repeal

of the validity of another norm, and which 18 called derogation. It plays
an important part in a positive legal order. It can also occur in a positive
morality: for example, in Christian morality, when Jesus says: Ye have
heard that it hath been said, Thou shalt love thy neighbour, and hate
thine enemy. But I say unto you, Love your enemies . . .’ (Matt. 5: 43—4).
That means: I repeal the validity of the norm ‘Hate your enemies’ and I
posit the norm ‘Love your enemies.’ The repeal of the validity of the old
norm and the positing of the new norm are two different acts, which
must be kept apart in the exposition of the morality in question. But in a
positive moral order, a norm usually does not lose its validity by
derogation, but because the time for which it is to be valid (as specified
by the norm itself or by another norm) has run out, or because it is no
longer actually observed and applied (i.e. it has lost its effectiveness,
which is a condition for its validity).
Thes‘e ways of losing validity must be distinguished from derogation.
For derogation is the repeal -of the validity of an already valid norm by
another norm. The function of a purely derogating norm is not to
command, to empower, or to permit behaviour, as other norms do. It
does not decree that under certain conditions a certain behaviour is to
occur, but repeals a behaviour’s being-obligatory decreed in a hitherto
valid norm. What it decrees is not an Ought, but a non—Ought. The
norm which repeals the validity of a norm which decrees a certain
behaviour to be obligatory must nOt be confused with a norm which
decrees the omission of a behaviour to be obligatory; it does not decree
any behaviour or the omission of any behaviour to be obligatory. It does
not decree the Ought of a behaviouror of its omission, but rather the
non—Ought of a behaviour (or omission) decreed to be obligatory in
another norm. It cannot be valid alone; it is valid only in connection with
another norm, the norm whose validity it repeals. In this sense
derogating norms are dependent norms.
§ III Derogation 107

II. A Derogating Norm Cannot Be Derogated

The question of derogation is the question of the sphere of validity of

norms, specifically the temporal sphere of validity, since derogation
terminates the validity of a norm in time (cf. below, section VIII).
Derogation concerns the validity of a norm and nOt the act of positing
the norm. Only the former can be repealed; nOt the latter. Since a
derogating norm is not concerned with behaviour, it cannot be observed
and applied (as Other norms can). And consequently, it cannot be
violated either. Once it has fulfilled its function, that is, once the norm to
which it relates has lost its validity, the derogating norm loses its validity
with respect to the norm whose validity it repealed. Thus its validity
cannot be repealed with respect to the norm whose validity it has already
repealed; it cannot be derogated (with respect to the norm it repealed).
The attempt to repeal the validity of a derogating norm with respect to
the norm it repealed, by enacting another derogating norm, would be
ineffective. The second derogating norm would not revive the validity of
the norm repealed by the first derogating norm. If the legislator were to
posit a norm reading ‘The validity of the norm repealing the validity of
the norm forbidding entry onto a certain piece of land is hereby
repealed’, with the intention of reviving the validity of the norm
prohibiting entry onto that piece of land, the norm he posited would n0t
be a derogating norm but a prohibition—norm (i.e. a new norm
prohibiting entry onto the piece of land) whose formulation is
technically defective. The validity of a norm whose validity has already
been repealed by a derogating norm can be revived only by a norm with
the same content as the repealed norm. Actually, it can never be revived.
The norm which becomes valid is another norm than the one whose
validity was repealed, even though it has the same content.

III. Derogation when Norms Conflict and when Norms Do not

Conflict

Derogation can occur in two different situations: when a conflict exists

between norms, and when no conflict exists. The latter is the case when
the norm-positing authority considers the validity of a valid norm to be
undesirable and so wants to repeal it. It can do so by an act whose
meaning is derogation. In such a case, we have a positive norm whose
only function is derogation. For example, there is a valid norm that all
males who are 21 years old and found fit for service are to do military
service. The legislator can repeal the validity of this norm by a legislative
act whose only function is to repeal the norm in question. The new norm
does not prohibit the performance of military service. There is no
108 Derogation ch. 27
conflict between a derogating norm (i.e. a norm repealing the validity of
another norm) and the other norm. A conflict exists between two norms
when there is an incompatibility between that which each norm decrees
to be obligatory and the principle Lex posterior derogat priori is not
applicable. The conflict is resolved if the validity of one of the two
conflicting norms is repealed by a derogating norm.
The legislator can also, for some reason or other, posit a norm which is
identical in content with an already valid norm. In such a case, the first of
the two valid norms can be repealed. If this occurs, then only the second
norm is valid. And if its validity is also repealed, then neither is valid.

IV. The Linguistic Expression of Derogation

Since a derogating norm decrees neither the Ought of some behaviour

nor the Ought of the omission of this behaviour, but rather the non—
Ought of some behaviour, it cannot be expressed in an imperative
sentence or sollen-sentence (like other norms). Linguistically an imper—
ative sentence or sollen—sentence can only serve to decree that behaviour
(action or omission) is obligatory, and not to decree the non-Ought of
behaviour. If there is a valid norm ‘Males who are 21 years old and found
fit for service are to do military service’, and if the legislator were to posit
the norm ‘Males who are 21 years old and found fit for service are not to
do military service’, he would nOt repeal the validity of the first norm but
posit a norm which conflicts with it. But a derogating norm does nOt
conflict with the norm whose validity it repeals. But it is not possible
linguistically to formulate the derogating norm in the following way:
‘Males who are 21 years old and found fit for service not-are to do
military service.’ Hence derogating norms appear in the form of
statements, for example, ‘The validity of the norm “Males etc ” is hereby
repealed. This statement does nOt have a descriptive but a prescriptive
function, 1. e. that of repealing the validity of a norm, just as for 1nstance
the following sentence in a criminal code, ‘Thieves are punished with
imprisonment’ , is linguistically a statement but according to its function
is a norm addressed to the judge: ‘Punish thieves with imprisonment’
(NOTE 79).

V. Derogation of a General Norm and of an Individual Norm

The norm whose validity is repealed by a derogating norm can be general

or individual. The latter is the case, for instance, when the decision of a
court which has the character of an individual norm is repealed by the
decision of a higher court without the higher court ruling on the merits
§ v1 Derogation 109

of the case. The norm whose validity is repealed can be an enacted norm;
it can also be a norm arising by way of custom. But a derogating norm
cannot arise by way of custom. As was indicated previously, custom can
have the effect that a valid norm loses its effectiveness by failing to be
observed and applied over a long period of time and thereby loses its
validity, without any behaviour——prescribing norm arising by way of
custom. There can also arise by way of custom a norm prescribing the
omission of an action commanded by a hitherto valid norm, or a norm
prescribing an action whose omission is commanded by a hitherto valid
norm. In such a case, there is no conflict ofnorms, since the custom which
gives rise to the new norm implies the long-standing non——observance and
non--application of the hitherto valid norm, which thus loses its
effectiveness and consequently its validity In both cases, therefore, there
is no derogation of a hitherto valid norm, but loss of validity through
loss of effectiveness.

VI. Are there Any Norms which Cannot be Derogated?

The question whether there are any norms which cannot be derogated
must be answered in the affirmative—contrary to a widespread opinion
in traditional jurisprudence.1 The question here is whether there are
norms whose validity cannot be repealed by another (derogating) norm,
and not whether there are norms which are incapable of losing their
effectiveness and consequently their validity and being replaced by other
norms which regulate the same object in a different way. There can be no
doubt that the answer to the second question is in the negative; but this is
not a case of derogation.
A norm can exclude its own repeal by another norm, but it cannot
exclude the possibility that it might lose its validity through loss of
effectiveness. There can be no doubt that a norm, in particular a legal
norm, can regulate not only behaviour but also its own validity. It can
specify that it is valid only for a certain time or for a certain place or for
certain persons, and it can specify that it is valid always, everywhere, and
for everyone. It can specify that it is valid until there occurs a conflict
with a valid norm posited by the same authority. It can decree that its
validity can be repealed only in a very special way, specified by itself or
by another norm of the same normative order, and consequently it can
decree that its validity cannot be repealed by any norm of the same

1 Thus e.g. Regelsberger (1893: i. 109): ‘. . . there is no unchangeable law. A legislator can
make the amendment or repeal of a pr0position of law more difficult . . . but he cannot
effectively make a proposition of law immune to amendment, not even for a limited time.’ It is
beyond doubt that he cannot ‘make’ it so. But the question is: What is the legal situation when a
norm becomes valid which conflicts with a norm characterized as unchangeable.
110 Derogation ch. 27

normative order. Norms considered to be of divine origin are valid

without any possibility of repeal or change, but that simply means that
their validity cannot be repealed by humanly enacted norms. A
republican constitution can Specify that it cannot be repealed by a
monarchical constitution, and a monarchical constitution that it cannot
be repealed by a republican constitution.

VII. The Institution of Res judicata for Judicial and Administrative

Decisions

A proof that there cann0t be any norms which by their very meaning
cannot be repealed is to be found in the positive—law principle of res
judicata concerning judicial and administrative decisions which have the
character of individual norms, for a decision which is res judicata is an
individual norm whose validity cannot be repealed by any derogating
norm. That is the meaning of res judimta. It is a different question
whether and to what extent the institution of res judicata in the strict
sense of the term is actually in force in a given legal order. It is not, when
the legal order does not completely exclude the possibility of a procedure
which can result in the repeal of the validity of the individual norm
representing a judicial or administrative decision, that is, when such a
procedure is always possible, even if it is only under very limited
conditions: for example, when a judicial or administrative decision
which is res judicata can be repealed by an act of the legislature. In such a
case, res judicata exists only in a relative sense and not in a strict, i.e.
absolute, sense, and practically does nOt mean anything more than the
executory nature of the decision.
Even an executed decision, an executed judgment imposing imprison-
ment or the death penalty, can be repealed. That is, the validity of an
individual norm decreeing that a certain person be imprisoned for one
year or be put to death by hanging can be repealed by another norm,
even when the decreed action has actually occurred, i.e. the judicial
decision has been carried out and the person condemned to one year’s
imprisonment has served his sentence or the person condemned to death
has in fact been executed. Naturally the repeal of the validity of the norm
cannot undo what has been done, i.e. the forcible deprivation of freedom
or life. But—and this is the essential function of this repeal———the action
can be divested of its character as the execution of punishment without
acquiring the character of a delict (i.e. the condition for a sanction). But
it must be noted: what is repealed is the validity the individual norm in a
judicial decision had before it was executed. For after it was executed, it
ceased to be valid.
The unrepealable nature of a given norm does not mean that anOther
§ VIII Derogation 111

norm conflicting with it cannot be posited and acquire validity. When

this occurs, that is, when norm A is valid and is unrepealable in virtue of
some provision of positive law, and nevertheless norm B is posited which
regulates in a different way the object regulated by norm A, the
unrepealable norm remains valid and there exists a conflict between the
two norms. Such a conflict of norms can be resolved either by the repeal
of the validity of norm B or by the repeal of the provision concerning the
unrepealable nature of norm A (thus allowing the validity of norm A to
be repealed by norm B in virtue of the principle Lex posterior derogat
priori).

VIII. Derogation and Abrogation: Repealing Validity and Restricting

or Extending the Sphere of Validity

Following Roman jurisprudence it is usual to distinguish between

ahrogatio (or 0hr0gati0) and derogatio, i.e. total and partial repeal. Thus
Ferdinand Regelsberger says in his discussion of the principle Lex
posterior derogat priori (cf. below, ch. 29, Iv): ‘The new proposition of
law can repeal the existing one either totally or partially. Its content can
limit itself to repeal or it can provide for a new regulation of the same
state of affairs. In the latter case there is no need for an express repeal
since the two propositions of law cannot be applied together’ (1893:
i. 110). The fact that two conflicting norms cannot be applied together is
no reason for assuming that one of them repeals the validity of the other.
And what can be ‘repealed’ is not a proposition of law—more correctly,
a legal norm but only the validity of a legal norm.
The term ‘total repeal’ of a norm means the repeal of its validity, i.e. of
its specific existence. But the extent of the sphere of validity of a norm
can vary. A norm can be valid for all time or it can be valid for a year. It
can be valid for the whole territory of the State or it can be valid for a
single province. It can be valid for all people, or it can be valid only for
the members of a certain religion. Hence it is possihle to restrict or extend
the sphere of validity of a norm. The restriction or extension of the
sphere of validity of a norm is a change in its content. But the content of a
norm can also be changed 1n other respects. That 18,1t is not only the
personal, temporal, and territorial spheres of validity of a norm which can
be altered, but also its material sphere of validity. The material sphere of
validity of a norm is the behaviour a norm decrees to be obligatory and
the conditions under which it is obligatory (cf. below, ch. 37). A norm
which is valid for all cases of theft can be replaced by a norm which is
valid only for a certain type of theft. A norm which prohibits murder by
providing for the death penalty as punishment for murder can be replaced
by a norm providing for life imprisonment as punishment for murder.
112 Derogation ch. 27
The term ‘partial repeal’ of a norm can be understood to mean the
partial change of its content, especially of its sphere of validity. But the
way in which the content of a norm is changed is nOt that the norm
continues to be valid as a partially repealed norm with a modified
content, but that the validity of one norm is repealed—by a norm whose
only function 1s derogation, as we shall see—and replaced by another
norm whose content is partly different from that of the first norm. When
people speak of the ‘partial repeal of a norm’, they mean a partial change
in the content ofa legal norm which continues to he valid. For example, if
there is a valid legal norm ‘Theft is to be punished by one to three years’
imprisonment’, and if the duration of the punishment is changed to ‘six
months to five years’ imprisonment’, then according to this view the
norm continues to be valid but with an altered content. Or, there is a
valid legal norm: ‘If two persons 21 years or older conclude a contract
and one of them does nOt fulfil his contractual obligations, then in an
action brought by the other, forcible execution is to be carried out upon
the assets of the first person and by a forcible sale of these assets
compensation provided for the damage caused by the breach of
contract.’ Suppose the age is reduced from 21 years to 20 years by
anOther norm. According to the theory being discussed, the first norm
continues to be valid but with a partially different content. The event
taking place in the realm of norms is represented as analogous to the
partial alteration of a physical object which does not affect 1ts identity, as
when a house with six windows is changed by adding two new windows
or by walling up two existing windows, without thereby making it into a
different house. But this analogy is wrong. A legal norm cannot be
changed as a physical object can.
When the content of a legal norm is changed (i.e. when a norm whose
content represents a partial alteration of the content of an0ther legal
norm begins to be valid), there are two possibilities. Either the earlier
legal norm continues to be valid without any change and there are now
two legal norms which conflict, or the validity of the earlier norm is
repealed in virtue of the positive-law principle Lex posterior derogat
priori (i.e. it loses its validity when the second norm becomes valid) and
the only valid norm is the second one whose content is partially different
from that of the first norm. In neither case does the first norm continue
to be valid with an altered content, as the theory of the partial repeal of a
legal norm assumes. Even if we assume along with traditional theory that
the change in content of the earlier norm is brought about by an
amendment of the earlier norm by the later norm, the earlier norm does
not continue to be valid with an altered content, but it is only the second
norm which is valid. And this is so even when the second norm is
formulated as ‘The minimum age specified in the first norm for a
contractor is reduced to 20 years.’ For this is simply an abbreviated form
§ IX Derogation 113

for the whole norm with a partially different content. That is clear from
the fact that—even according to the traditional theory—when the later
norm is identical in content with the earlier norm, the earlier norm ceases
to be valid. For if the validity of the later norm is repealed, the earlier
norm does not revive (cf. Regelsberger (1893: i. 110)). Thus the
‘partial’ repeal of a legal norm can only mean either no repeal at all or a
complete repeal—and what is repealed is not a legal norm but the
validity of a legal norm.

IX. The Amendment of a Statute

Now, what is possible is not the partial repeal of a single legal norm, but
the tOtal repeal of a single legal norm which is part of a statute made up
of many legal norms. When the validity of this single legal norm is
repealed, anOther legal norm regulating the same object in a different
way may or may not become valid. In either case the other legal norms
contained in the statute which have not been repealed continue to be
valid. In either case one can say that the statute is valid but with an
altered content (due to the absence of the repealed norm). Since the
validity of a statute made up of many legal norms is nothing but the
validity of these legal norms and is not a validity over and above that of
the constituent legal norms, what has occurred is not the partial repeal of
the statute, but a total repeal of one of the legal norms which, as a group,
are called a statute. Even when another norm regulating the same object
in a different way becomes valid, the statute does not continue to be valid
with the new norm in the place of the repealed norm. This new legal
norm is valid alongside the statute (now minus the repealed legal norm).
This is so even when the new legal norm is posited in the following way
(as sometimes happens): ‘The following provision of statute such and
such (and there follows the text of a legal norm contained in the statute)
is repealed, and replaced by the following provision (and there follows
the text of the new legal norm).’ This formulation is defective. The
legislator is misled by the erroneous theory of ‘partial’ repeal. If the age
of capacity is set in a Civil or Criminal Code and if this age is changed by
a later statute, for example, by the sentence ‘The age of capacity set at 20
years in the Civil Code is reduced to 18 years of age’ or ‘The age of
criminal capacity set at 16 years of age in the Criminal Code is increased
to 18 years of age’, people say that the statutes continue to be valid but
with a partially different content. But that is incorrect. The wording of
the statute changing the age of capacity is simply an abbreviated
formulation of a new civil or criminal statute, i.e. of all the legal norms
contained in the old statute with a partially different content. If the
validity of the statute amending the age of capacity were tO'be repealed,
114 Derogation ch. 27
the previous civil or criminal statute would not revive even if that were
the purpose of the repeal of the amending statute. If that 13 indeed the
purpose, then a correct legal technique requires an express formulation
of this purpose.
The distinction between abrogare and derogare goes back to the
celebrated passage in Cicero’s Republic: ‘It is a sin to try to alter
[abrogare] this law, nor is it allowable to attempt to repeal [derogare] any
part of it, and it is impossible to abolish [abrogare] it entirely’ (iii. 22).
The passage clearly concerns a statute made up of many legal norms. But
the principle Lex posterior derogatpriori applies nOt only to the relations
between statutes, but also to the relations between single legal norms,
and in this principle the verb derogare means nOt only ‘partial’ repeal,
but also ‘total’ repeal. I use the word ‘derogation’ in the sense of the
repeal of the validity of a norm.
Derogation is necessary when norms conflict, but it can also take place
when there is no conflict of norms, for instance, when the validity of a
legal norm is repealed without any other norm taking its place, or when a
legal norm becomes valid and it has the same content as an already valid
norm.
 28
Legal Norms and Legal Principles:
Esser’s Transformation Theory
It has been claimed—for instance, by Joseph Esser (1956)—that a legal
system includes not only legal rules, but also legal principles. This
distinction is occasioned by the problem of the creation of law, for the
creation of general and individual legal norms is influenced by principles
of morality, politics, and manners [Sitte], which are addressed to the law—
creating authorities and which require the creation of legal norms with a
certain content. The influence of these principles can be seen in the fact
that the content of the general and individual legal norms created by the
legal authorities agree with these principles to a greater or lesser degree.
Legal science discovers these principles influencing law-creation by
analysing and comparing positive legal norms.
It should be nOted that general legal norms whOse content agrees with
principles of morality, politics, or manners can be created not only by
legislation, but also by way of custom arising from the practice of the
judiciary. The judicial decision in a concrete case which is not the
application of an already valid, materially determinate general legal norm
can be influenced by a principle of morality, politics, or manners which
has never yet influenced legislation. The individual norm which
represents such a judicial decision can become valid in virtue of the
formal positive—law principle of res jaa’icata. The reason for the validity
of this decision is the formal positive—law principle concerning res
jadicata, and not the principle of morality, politics, or manners
influencing the decision. There can be no question of decisions of
principle’ (1956: 26) in the sense that the court applies a principle of
morality, politics, or manners as it does a positive general norm. For 1t is
only the latter and not the principle which can be the reason for the
validity of the judicial decision. In virtue of the fact that similar cases are
regularly decided in similar ways and become valid in virtue of the
principle of res jadicata, a general legal norm is created whose content
agrees with the principle which influenced the decision. But even then,
the principle of morality, politics, or manners with which the content of
the general legal norm agrees remains a norm different from this general
legal norm. It 13 wrong to claim that general legal norms are created only
by legislation, nor was this ever claimed by traditional theory, which
recognized customary law alongside statute law and which therefore
116 Esser’s Transformation Theory ch. 28
never assumed there was a ‘monopoly of the political legislature’, as
Esser objects (p. 18). The principle of res judicata grants to the courts,
especially the courts of last instance, a power which is well—nigh
unlimited, and whose essential effect is to limit the positive—law
requirement of the Material Legality of judicial decisions as well as the
significance of legislation, but of which the courts in fact make no
notable use.
The influencing of law—creation by principles of morality, politics, and
manners is sometimes consistent, sometimes less so. The moral principle
of individualfreedom, for example, is expressed in a positive legal system
as freedom of contract. But a legal system which can be said to embody
the principle of freedom of contract does not allow all agreements
concluded between individuals to be valid. A promise of marriage is not
binding, according to many positive legal systems, likewise contracts
concerning immoral behaviour. The subjects of the law are not "free (i. e.
empowered by the legal order) to conclude binding contracts with these
contents. The author of the constitution, influenced by the political
principle of the separation ofpowers, may set up separate organs for the
\functions of legislation (i.e. creation of general legal norms), adjudica—
tion, and administration. Nevertheless, according to such a constitution
based on the principle of the separation of powers, general norms can
also be posited by administrative organs under certain conditions.
Furthermore, the principles influencing law—creation can conflict.
The principles of morality, politics, and manners under discussion
here can be called ‘legal’ principles only in the sense that they influence
the creation of legal norms by competent legal authorities. But they
remain principles of morality, politics, and manners, and they must be
clearly distinguished from the legal norms whose content agrees with
them. Calling them ‘legal’ principles does nOt mean—as the word
suggests—that they are law, that they have the character of law. The fact
that they influence the creation of legal norms does not mean—as Esser
assumes—that they become ‘positivated’, i.e. part of positive law. The
only things which are ‘positivated’ (i.e. positive law) are norms of a
certain kind (namely, those prescribing specific coercive acts) created in
ways specified by the law itself. It is only a concept of law defined in this
way which can be distinguished from the concepts of morality and
politics, and such a distinction is of the greatest importance from the
point of view of conceptual economy.
The creation of legal norms is also influenced by other factors than
principles of morality, politics, or manners (e. g. by the interests of
certain groups of legal subjects) without anyone attributing a ‘legal’
character to these interests. And if the law—making authority is
influenced in its function by a principle which this authority considers to
be a principle of justice, the necessity of distinguishing between positive
 Esser’s Transformation Theory 117
law and justice must be maintained, even in this case. The principle of
justice does not change its character as a moral principle because the
content of a positive legal norm agrees with it.
The principles of morality, politics, and manners which influence the
law—creating individual in his function are—along with other factors—
the motives of the legislator, the judge, or the administrative organ; and
these motives are not legally binding according to positive law. Thus
these principles do not have the character of legal norms. If the concept
of a legal norm is nOt clearly distinguished from that of a legal principle,
then the boundary between positive law on one side and morality,
politics, and manners on the other 13 blurred: the only people who can
want such a result are those representatives of legal science who consider
it their task not so much to know positive law and describe it objectively,
as to justify or question its validity on moral or political grounds and so
engage in highly subjective evaluation of law under the banner of
objective legal cognition.
It is true that what are called legal principles are discovered by a
methodologically pure legal science by analysing and comparing the legal
norms posited by legal authorities; but this does nOt result 1n a confusion
of the two concepts.
Esser says: ‘We must distinguish between principles which are valid
law and those which—in the context of judicially created norms—
loecome so for a specific range of cases in virtue of jurisprudence
constante’ (p. 41). But what are ‘legal principles’ according to Esser? He
says that according to linguistic usage,
a legal principle 18 not a prOposition of law or legal norm in the technical sense as long
as it does not contain a binding direction of an immediate kind for a specific range of
questions: it requires or presupposes the judicial or legislative definition of these
directions. Legal principles, as Opposed to legal norms, are content as opposed to
form. (p. 50)

He insists that ‘for Continental legal thought the difference between a

principle and a norm is of greater significance than that between a
“principle” and a “rule” for Common Law thought’ (p. 51). If there exists
a difference between a principle and a norm, then a principle cannot be a
norm. Even the title of his book Grundsatz una’ Norm [Principle and
Norm] implies this difference. But from Esser’s exposition of the
problem, it is clear that by ‘norm’ he understands only ‘legal norms’, a
highly questionable practice from a terminological point of view. He
does not deny 1n any way that the ethical——political principles which
determine the creation of legal norms have a normative character. He
asks: ‘Where do legal principles get their character as positive law from?’
(p. 132). That presupposes that principles can be legal principles even
before they are positive law. They can then be l‘e’gal principles only 1n
118 Esser’s Transformation Theory ch. 28
the sense of Natural Law. But if one rejects Natural Law doctrine, as
Esser does, one can only ask when a principle can be called a ‘legal’
principle. Esser’s answer is: ‘When and as long as they are institutionally
embodied by law—making acts of the legislature, of jurisprudence or of
legal life. Within this framework, all legal principles are procedurally
protected elements of positive law.’ And later:
The following are positive law, even if they are not independent, finished legal rules:
the so—called general legal ideas, the rationes legis, the principles of evaluation and the
principles of structure of a system, and also the legal—ethical principles and principles
of justice of a legal circle outside of its educational system; all these, in so far as they
have secured recognition in concrete forms of order. In addition, they are guides or
principi informatori for the law—forming organs, as are all maxims and rules of
transmitted solutions to problems which incorporate judicial experience. (p. 134)
The claim that the ‘principles’ which influence the creation of law are
‘positive law’ represents the previously mentioned confusion of two
concepts which must be kept apart from the point of view of conceptual
economy. In this way the concept of law is extended beyond that of a
legal norm and is thus deprived of any firm boundary vis-d-vis the
concepts of morality and politics. In this way, all factors which actually
influence the creation of law (and especially party and class interests) can
be characterized as ‘law’ and legitimized. That principles of morality,
politics, and manners are ‘incorporated’ by law-forming acts can only
mean that legal norms created by law—forming acts agree—in virtue of
their content—with these principles. But that is no reason for
considering these principles to be positive law, that is, to extend the
concept of positive law so as to include these ‘principles’ (NOTE 80).
By the vague term ‘legal life’ Esser presumably means judicial
adjudication, since in another context he calls ‘judicial law—formation a
field of force of juristic principles’ (pp. 14 ff.). If by ‘jurisprudence’ he
understands legal science or In doctrine, his assumption that it can
perform ‘law—forming acts’ is incorrect. Esser speaks of the ‘law—forming
force of the glossators and commentators’ (p. 41), and he says of the
Neptune case (1795) that the concept of emergency was already droit
commnn in virtue of doctrine, but n0t yet in virtue of contmne, and that
‘as far as the specific principles of international law are concerned, there
is only one classical source, that of doctrine, which became dominant
with Grotius’ (p. 42). But [a doctrine cannot perform any law—forming
aCts, since law-forming acts are acts of will, while legal science or [a
doctrine is a function of cognition rather than will. La doctrine can
only state that a certain legal norm is valid, it can only describe the
relations between legal norms, and between legal and other norms, and
not make legal norms valid or deprive them of validity. Only a legal
authority, such as the legislator or the judge, can do that. An author——
such as Grotius—may claim that a legal norm is valid, but this claim is
 Esser’s Transformation Theory 119
true only after the courts have, as a result of this author’s influence,
decided concrete cases according to this norm for a considerable period
of time and this norm has thereby become a general legal norm. It is
created as a norm, not by doctrine, but by the practice of the courts.
Esser calls the process by which a principle becomes positive law (is
‘positivated’) ‘transformation. He speaks of the‘positivation of prin—
ciples’ (p. 42), and says that ‘the individual legal decision, as well as the
weight of constant practice, can be the transformer of pre-positive
principles into positive propositions of law and institutions’ (pp. 52 f.),
and that ‘what interests us here are the constant forms of thought in
which the transformation of pre-juristic value—judgments and principles
into genuine legal valuations typically takes place’ (p. 56). And later we
read:
It is evident everywhere that there are from time to time value— decisions which refer
to pre—juristic (namely ethical and socio—political) standards and nevertheless need to
be transformed 1nto legal truths 1n order that they may fit 1nto an existing deductive
system of positive validity. (p. 59)
There can be no question of a transformation of ethical and socio-
political standards into ‘legal trntbs’, because it is the case neither that the
norms of morality or the postulates of politics are instituted by ethical
and socio—political standards, nor that the legal norms by which legal
values are instituted are ‘true’ or ‘false’. What Esser calls a legal ‘truth’ is
the validity of a legal norm, something essentially different from truth,
which can only be a property of a statement. Moral norms and socio—
political postulates are directed to the positing of legal norms by
prescribing to the individuals positing a legal norm that they give a
specific content to the legal norms they posit. The fact that the act by
which a legal norm is created agrees with the moral norm or socio—
political postulate from which the legal norm receives this content does
not constitute a ‘transformation’ of the moral norm or socio-political
postulate. The moral norm or socio—political postulate remains some—
thing different from law; it is not transformed into law, any more than
human behaviour which agrees with a moral norm is a transformation of
the moral norm. Just as one can only say ‘The person’s behaviour is
morally good’ one can only say ‘The positing of a legal norm whose
content agrees with a moral norm or a socio—political norm is good
morally or socio--politically.’ The moral norm or the socio-political
postulate does nOt change character because an act of positing a legal
norm agrees with it, any more than the moral norm ‘People are to speak
the truth’ changes its character as a moral norm because someone speaks
the truth. The legal norm whose positing agrees with a moral norm in
virtue of the legal norm’s receiving the content prescribed by a moral
norm must be distinguished from the moral norm—and law in general
120 Esser’s Transformation Theory ch. 28
from morality in general—especially since the validity of a legal norm-
even one whose content agrees with a moral norm—is wholly
independent of the validity of a moral norm. There can be no question of
a ‘transformation’ of morality or socio—politics into law. Morality
and socio-politics on the one hand and law on the other are different
ought-levels or spheres of norms. The idea that norms of positive law are
‘transformed’ ethico—political principles rests ultimately on a failure to
understand that the expression ‘creation of law’ is a metaphor, on the
belief that law is created in the way a material object is created——e.g. as a
table is created by a cabinet—maker out of wood—or is ‘brought forth’ as
water is ‘brought forth’ from a river—and then asking ‘From what?’
(p. 23), that is, from which material the legal norm is created or brought
forth. According to Esser, the legal principles constitute this material. It
is in this way that Esser arrives at his ‘transformation’ theory, and thus at
the view that there are legal norms which are ‘transformed ethico—
political principles.
The objective of Esser’s ‘transformation’ theory is to overcome the
opposition between Natural Law theory and legal positivism, and define
an intermediate position. He says of the ‘transformation’ of ethical and
socio—political standards into ‘legal truths’:
This work of translation of the ethical and political into the legal with the help of
transmitted means of evidence of the juristic gv’Sogof gives the lie to a monistic
conception of law and ethics understood along the lines of Natural Law. It likewise
refutes the historicist or statist account of the supposed autonomy of positive rules
and legal figures with respect to everything which 18 ‘metajuristic’. Judicial activity
means a constantly renewed restoration of communication between ethical sub-
stantive values (the elements of Natural Law, irrédactilale droit natarel 1n Gény’8
sense) and juristic formal and institutional values. (pp. 59 f.)

The ‘autonomy’ of positive rules and legal figures with respect to

everything which is ‘metajuristic’, i.e. morality or so—called Natural Law,
consists in the undeniable fact that the validity of positive legal norms is
independent of the validity of moral norms or Natural Law norms, that
legal norms are valid whether or not the law—positing acts agree with
these other norms. The fact that a judicial decision agrees with a moral
norm or an alleged norm of Natural Law is totally irrelevant to its
validity, for it is valid even if it does nOt agree with it. The only thing that
matters is that its creation agrees with the general legal norm prescribing
a specific content for the judicial decision. In so far as the general legal
norm does not prescribe a specific content, the organ positing the legal
norm is legally free to determine the content of the norm it is to posit.
But even a judicial decision which does not agree with the general legal
norm specifying its content can be valid in virtue of the principle of res
jaa'icata. Furthermore, one must note that there exist very different
systems of morality and Natural Law, and that a judicial decision which
 Esser’s Transformation Theory 121
agrees with a norm of one of these can conflict with a norm of anorher, a
fact which is completely irrelevant for the validity of the individual legal
norm representing the judicial decision. What Esser calls ‘communic—
ation’ between ethical and juristic values, i.e. the fact that a judicial
decision agrees with a moral norm, is certainly not true of every judicial
decision and does not affect in any way the ‘autonomy’ of positive legal
norms with respect to morality and Natural Law. According to Esser
certain positive legal norms are transformed norms of morality and
Natural Law. He speaks of a process of blending of ‘law’ and ‘morality’,
of a ‘hopelessly unreal distinction between law and ethics’: ‘The
categorial independence of juristic concepts and arguments would be a
curse, the juristic method would have to remain sterile, without the
embodiment of those moral truths reduced to self—evident principles
with logical or social force’ (p. 61). But the categorial independence of
juristic concepts and arguments does nOt in any way mean that the
creation of legal norms cannOt be influenced by ethico—political norms.
He rejects the ‘reaction of positivistic theory which refuses to acknow—
ledge the Natural Law content of its work of construction’ (p. 62). That
is precisely the objection Natural Law theory addresses to legal
positivism. By assuming that positive legal norms can have a ‘Natural
Law content’, and so by presupposing the validity of a Natural Law,
Esser’s transformation theory becomes a Natural Law theory, a doctrine
he—allegedly—rejects.
An essential element of Natural Law theory is that it presupposes only
one—and hence, an absolute—justice, which is expressed in Natural
Law. Esser does likewise. He asserts that a principle is ‘suitable for legal
norm—formation only when it is susceptible to a specifically juristic
argumentation from the points of view of justice and of fittingness’
(p. 69). And: ‘The task assigned to the judge must permit a decision from
the points of view of justice and of fittingness to things’ (footnote 214).
That is the old requirement that positive law ought to agree with the
ideal of justice. But to which ideal of justice? The capitalistic,
individualistic one or the socialistic, collectivistic one? If it agrees with
one of them it conflicts with the other; but positive law is valid whether
or not it agrees with either ideal of justice. ‘Fittingness to things’ is the
‘nature of things’ to which Esser is always alluding and which he calls the
‘transformer of legal-ethical postulates’ (p. 69). The view that legal
norms originate in the ‘nature of things’ is typical Natural Law thinking.
One can say, amending Goethe: What 18 called the‘nature of things’ is
the spirit of the masters, 1that is, the different views of what 1s Natural
Law according to the different believers 1n Natural Law, of which views

1 [Translator’s Note: The refrence is to Faust (11. 577—9): ‘What you call the spirit of the
times is basically the spirit of the masters, in which the times are reflected.’]
122 Esser’s Transformation Theory ch. 28
there is as great a variety as there are religions. Within a Natural Law
theory based on the ‘nature of things’, there is room for a communist as
well as a capitalist legal system, for a democratic as well as an autocratic
legal system. Hence its popularity. With it, anything can be justified.
That is legal positivism’s main objection to Natural Law theory, even
when it is disguised (as Esser’s transformation theory).
The ‘general principles of law recognized by civilized states’ which,
according to art. 38, § 1c of the Statute of the International Court of
Justice, are to be applied by the Court, require a special explanation.
Since art. 38, § 1 specifies that it is the task of the Court to decide the
cases submitted to it according to international law, the ‘general prin—
ciples of law’ referred to in § 1c are international law. But what inter—
national law? That which was already valid before the enactment of
art. 38 of the statute, or that which became international law by being
cited in art. 38, § lc as the law to be applied by the International Court?
These general principles of law could be already valid international law
only if they became customary international law in virtue of the
customary behaviour of States. But if that were the case, the principles in
question would be already contained in the customary international law
mentioned in § lb, and so § 1c would be superfluous. The fact that they
are expressly mentioned in addition to international agreements (§ 14)
and customary international law (§ lb) shows that they are norms which
became international law to be applied by the International Court in
virtue of the fact that § 1c empowers the International Court to apply
them (NOTE 81).
 29
Conflicts ofNorms
1. Definition and Kinds of Conflicts of Norms

A conflict exists between two norms when that which one of them
decrees to be obligatory is incompatible with that which the other
decrees to be obligatory, so that the observance or application of one
norm necessarily or possibly involves the violation of the other. The
conflict can be bilateral or unilateral. It is bilateral, if the observance or
application of either norm involves a (necessary or possible) violation of
the other; it is unilateral if it is only the observance or application of one
of the two norms which involves the violation of the other. The conflict
can be total or only partial. It is tOtal if one norm commands a certain
behaviour while the other prohibits this behaviour (i.e. commands its
omission). It is partial if the content of one norm is only partially
different from the content of the other.
The following are examples of necessary conflicts:
I. Norm 1: Love your enemies.
Norm 2: Do not love, but hate your enemies.
Observing norm 1 necessarily violates norm 2; observing norm 2
necessarily violates norm 1.
II. Norm 1: Bigamy is to be punished.
Norm 2: Bigamy is not to be punished.
Applying norm 1 necessarily violates norm 2; applying norm 2 (i. e.
refraining from punishing bigamy) necessarily violates norm 1. In both of
the preceding cases, the conflict 13 total.
III. Norm 1: Murder is to be punished by death.
Norm 2: Murder is to be punished by imprisonment.
Applying either norm necessarily violates the Other. But the conflict is
only partial. In all three cases, the conflict is bilateral.
The following are examples ofpossible conflicts of norms:
IV. Norm 1: Everyone is to refrain from lying.
Norm 2: Physicians are to lie if this will avoid distressing their
patients.
Observing norm 2 necessarily violates norm 1. But observing norm 1
possibly violates norm 2 (i.e. only when a physician refrains from lying).
124 Conflicts of Norms ch. 29

The conflict is bilateral but only partial. It is necessary on the side of

norm 2, but onlypossible on the side of norm 1.
V. Norm 1: Theft is to be punished.
Norm 2: Theft from relatives is nOt to be punished.
Applying norm 2 (i.e. refraining from punishing theft from relatives)
necessarily violates norm 1, but applying norm 1 possibly violates norm 2
(i.e. only when theft from relatives is punished). The conflict is bilateral
but only partial. It is necessary only on the side of norm 2, and is only
possible on the side of norm 1.
VI. Norm 1: When X occurs, the wrongdoer is to be punished.
Norm 2: When X occurs, the wrongdoer 1s to be punished only if
the judge considers punishment to be appropriate
The conflict 1s bilateral, partial, and only possible on bOth sides.
VII. Norm 1: Murder is to be punished by death, if the murderer is
over 20 years of age.
Norm 2: Murder is to be punished by death, if the murderer is
over 18 years of age.
Applying norm 1 does not violate norm 2; applying norm 2 possibly
violates norm 1 (i.e. when a murderer under 20 years of age is executed).
The conflict is partial and unilateral, and it is a possible conflict only on
the side of norm 2. A unilateral necessary conflict does not appear to be
possible.

II. Conflicts of Norms and Logical Contradictions

There can be no doubt that conflicts such as these occur. Under the name
of ‘conflicts of duties’ they play an important role in morality as well as
in law, and especially in the relation between morality and law. A
conflict of norms presupposes that both norms are valid. The statements
about the validity of both norms are true. Hence——as we shall see later
(ch. 57)——a conflict of norms is not a logical contradiction,1 or even
anything similar to a logical contradiction. Derogation repeals the
validity of one of the valid norms. In the case of a logical contradiction
between two statements, one of the two statements is false from the very
beginning. Its truth is not repealed; it never existed. Since the validity of
1 Drews draws a distinction between a contradiction and an Opposition: ‘Concepts do nOt
contradict each other, but only oppose each other. “Circle” and “non-circle” are mutually
exclusive, but one of the two concepts does not make the Other one impossible. This occurs
only with two judgments one of which asserts the Opposite of the Other. The principle of
contradiction therefore expresses a relation between two judgments . . . When one of two
judgments asserts what the Other denies, then one Of the two must be false’ (1928: 229 f.). The
principle of contradiction is applicable only to the relation between Statements and not to the
relation between norms (cf. below, ch. 41).
§ III Conflicts of Norms 125

a norm is its specific existence, a conflict of norms can be compared—if

at all—not with a logical contradiction, but with two forces acting in
different directions on the same point. A conflict of norms is an
undesirable state of affairs, but it is possible and not all that infrequent.

III. The Resolution of 3 Conflict of Norms by Derogation

The resolution of a conflict of norms by derogation can, but need not,

occur. Derogation occurs only when it is decreed by the norm—positing
authority. Just as a conflict of norms is not a logical contradiction, so the
derogation which resolves the conflict is not a logical principle—as is
assumed in traditional jurisprudence—but rather—just like instances of
derogation which are not necessary—the function of a positive moral
norm and especially of a positive legal norm; this norm is not one of the
two conflicting norms but a t/Jirozl norm which specifies that one of the
two conflicting norms loses its validity, or that bOth norms lose their
validity.
A conflict can occur between two norms of the same level or between
a norm of a higher level and a norm of a lower level, when the positing of
the two norms does not coincide in time (i.e. one is later than the other).
The norm—positing authority (e.g. the legislator) can posit at a certain
point in time a norm prescribing a certain behaviour and at a later point
in time another norm prescribing the omission of this behaviour. The
constitution of a State can specify that people are to be treated by the
legislator without any distinction of religion or race, but the legislator
can later enact a statute in which certain duties are imposed or certain
rights are conferred only on people who belong to a certain religion or
race. In the first case, there can (but need not) be a valid norm that it is
the later norm which loses its validity, and in the second case that it is the
earlier (higher) norm which loses its validity. In the latter case, i.e. that of
an unconstitutional statute, it should be noted that according to positive
law a so-called ‘unconstitutional’ statute can be valid, but its validity can be
repealed by a special procedure provided for in the constitution, e.g. by
the decision of a special court. In such a case, there is no conflict of
norms. For if the norm in question is valid, it is also constitutional, that
is, the constitution empowers the legislator to enact the statute in
question but provides that it can be repealed by a special procedure. Two
norms within a given statute can conflict. If there is no valid norm that
the law—applying organ has the choice of applying one or the other of the
two norms, then the norm that both norms which became valid lose their
validity can be valid.
So far we have been speaking only of conflicts between norms of the
same normative order (indeed, of a legal order). If there is a conflict
126 Conflicts of Norms ch. 29

between norms of two different normative orders, such as norms of a

legal order and of a moral order, the legal order can specify that a legal
norm which conflicts with a moral norm loses its validity, but not that a
moral norm which conflicts with a legal norm loses its validity; and the
moral order can specify that a moral norm conflicting with a legal norm
loses its validity for the legal order’s sphere of validity, but nOt that the
legal norm conflicting with the moral norm loses its validity. Derogation
is possible only within a single normative order.

IV. LeX posterior derogatpriori: A Principle of Positive Law and not

a Logical Principle

A correct understanding of the nature of derogation is obscured by the

theory inherited from Roman juris rudence and expressed in the
principle Lex posterior derogat priori. This proposition is misleading.
Mainly because it gives the impression that derogation is a function of
one of the two conflicting norms. This is wrong, for the reasons
indicated above.3 The principle in question is problematical also because
it need not necessarily be applicable—since derogation is not a logical
principle but one of positive law—but is applicable only if it is stipulated
by positive law, and also because it is not applicable to all cases of
conflicts of norms. It was shown above that it can be the later and not the
earlier of two conflicting norms which loses its validity in the event of a
conflict, and so in such a case one would have to say ‘Lex prior derogat
posteriori’ (in analogy to Lex posterior derogat priori). Also the principle
ignores the case where both conflicting norms lose their validity by
derogation, where—as one could say in imitation of the formula Lex
posterior derogat priori—the two norms mutually repeal each other.
The _ claim that conflict—resolving derogation, and especially the
principle formulated as Lex posterior derogat priori (NOTE 82), is not a
logical principle but one of positive law could be subjected to the following
objection: within a positive legal order it is not usually possible to find
an express norm concerning derogation in the event of a conflict of
norms. This can be explained on the grounds that the legislator usually
refrains from expressly enacting it because he tacitly presupposes it to be
2 As Regelsberger has stated (1893: i. 110), the principle cannOt be f0und in the sources, but
it is in material agreement with them.
3 [Translator’s Note: At this point in the German edition, there is a reference to a page of
ch. 27 which includes the second half of section VII and the beginning of section VIII of the
chapter. But the ‘reasons’ referred to here do not appear in those sections. Professor Robert
Walter, one of the editors of Kelsen’s manuscript, suggests that the reference should be to
sections 11 and III of the present chapter. In the article ‘Derogation’ (1962) from which this
chapter is taken, the reason Kelsen gives at this point why a norm cannot repeal a norm with
which it conflicts is that it does not refer to the Other norm: cf. Essays in Legal and Moral
Philosophy (1973) 273 .]
§ IV Conflicts of Norms 127
self—evident. It is perfectly possible for the three ways of resolving
conflicts of norms to be applied as principles of interpretation by the
law—applying organs to such an extent that their validity is considered
self—evident—even by the legislator—and so they are tacitly pre-
supposed to be valid: the author of the constitution presupposes it to be
self—evident that when a later statute posited by the legislator conflicts
with the constitution it is the statute which loses its validity; the
legislator assumes it to be self-evident that when he posits a norm which
conflicts with an earlier norm he posited, it is the earlier norm which
loses its validity; and the legislator assumes it to be self—evident that
when there are two conflicting norms within a statute he enacted and he
has not specified any solution for such a case, then the law—applying
organ can choose between the two norms, or the two norms both lose
their validity. These derogation—principles are then positive legal norms.
But the important point for legal theory is that these derogation—
principles are not logical principles, and that if they are not expressly
posited or presupposed as tacitly posited, then conflicts of norms remain
unresolved, and legal science is no more competent to resolve—e.g. by
interpretation—existing conflicts of norms (i.e. to repeal the validity of
posited norms) than it is to posit them in the first place (NOTE 83).
 30
Law as a Standard of Valae and
Law as ‘TeaC/oingL—Tne
Significance oft/oejadge’s Finding
ofFact
When a norm decrees behaviour to be obligatory, the actual behaviour
which agrees with the norm can be judged (i.e. evaluated) as valuable or
good, and the behaviour which does n0t agree with the norm as
‘disvaluable’ or bad. As was indicated previously, this norm institutes a
value, if we mean by ‘value’ agreement with a norm. and by ‘disvalue’
failure to agree with a norm. When a certain behaviour is objectively——
i.e. purely cognitively—asserted to agree or not with a norm presup—
posed to be valid (and in this sense is evaluated), the norm serves as a
standard ofvalue. To that extent, ‘serving—as-a—standard-of—value’ can be
called a function of a norm. But it should be noted that this ‘evaluation’
is an act of jndgment and not directly a function of the norm itself, which
is simply presupposed in the value—judgment.
Some people consider that the function of a norm is not only to
‘command’, but also to ‘teach’. Thus Adolf Merkel characterizes the law
as ‘teaching and power’ in his very influential juristiscbe Encyclopa'die:
‘It is a teaching, in that it informs us how the limits—’of human spheres of
power are to be determined, and it is power in that it requires and
guarantees that these limits be respected’ (1913: 2). This characterization
of law confuses a norm with a statement about a norm. The law as norm
does not teach; it does nOt give any information. It is legal science which
does this, in the propositions with which it describes the law; and these
propositions of law must be distinguished from the legal norms, just as
legal science must be distinguished from the law which is its object.
These sentences are sollen-sentences; but in these sentences the ‘sollen’
has a descriptive and nOt aprescriptive signification (cf. below, ch 38.11 f.). It
is of course possible, and not all that infrequent, for the text of a statute
to contain genuine statements, for the legislators to impart information.
But they do nOt do so in their capacity as legislators; in uttering these
sentences they do not perform any normative function. These contents
of a statute are legally irrelevant.
It 18 another matter when a law—applying organ, in particular a judge,
 The Judge’s Finding of Fact 129
establishes a fact to which a general norm attaches a sanction, e.g. when a
judge ascertains that a certain person has committed theft before
prescribing in an individual norm for the present case the sanction
ordained in the general norm (imprisonment). This finding of fact is an
act whose meaning is a statement which can be true or false. But it is the
act of fact—finding which matters in the legal proceeding. It is the act of
fact—finding which is a condition to which the general legal norm attaches
the sanction. And this condition is fulfilled even if the meaning of the
act—i.e. the statement—is false, once the judicial decision is res judicata.
Indeed, there are not two conditions, the existence of the fact of theft and
the act of fact-findincr
ng; rather, it is the latter which is the condition to
which the general norm attaches the sanction. For it is not the fact of
theft, or generally speaking the fact of the delict in itself, to which the
general norm attaches the sanction, but rather the finding of fact by the
law—applying organ. This is true even of what are called declaratory
judgments of a civil court, where no sanction is ordered. The
signification of such a judgment is that if there occurs a later trial in
which the condition for a sanction is a fact established in the declaratory
judgment, then the sanction can be ordered without a new finding of
fact.
In order to understand the true nature of the act by which a court
establishes a fact to which a norm to be applied by the court attaches a
sanction, we must free ourselves from the traditional legal language used
to describe the situation. It is customary to say—and the legislators
themselves say or appear to presuppose—that the law, in a general legal
norm, attaches a definite consequence as a sanction (namely a coercive
act) to a definite, really occurring event as a condition. If this account
were correct, then the court’s finding of fact could only have a
declarative—Le. a descriptive—character: it would actually be a state—
ment like any Other, it would be true or false, and it would lead to a
judicial act whose meaning is a valid norm (i.e. the binding ordering of a
coercive act) only if it weretrue. But this is clearly not the case.
The important thing to be nOted is that from a strictly epistemological
point of view there are no things or events in themselves, but only things
or events in human consciousness, and that what legislators actually have
to deal with are not things or events in themselves, but statements about
things or events which express the contents of consciousness. Hence
legislators cannOt make events in themselves the condition for certain
consequences. They can only make some person’s belief that an event
occurred the condition for certain consequences, and if they do so, they
must specify whose belief is to be decisive. For when 1t has to be decided
whether a certain event took place, different people’s opinions based on
their direct or indirect perception may vary. The condition to which the
law attaches a certain consequence is a finding by the court which is
130 The Judge’s Finding of Fact ch. 30
competent according to the law of civil procedure that a certain event
took place; hence an act of the court of which this statement is the
meaning. The legal norm concerning theft does not say ‘If someone
commits theft, the court is to order that he is to be imprisoned’, but
rather, ‘If the competent court finds that someone has committed theft,
this court is to order that this person is to be imprisoned.’ The function
of the finding of fact by the court is to posit the state of affairs which is
the condition for the sanction. The court has to posit two things: the
state of affairs which is the condition for the sanction, and the individual
norm ordering the coercive act which serves as the sanction. Admittedly,
the usual way of speaking considers the delict to be the condition for
the sanction, but the correct view is that the delict is merely the state of
affairs asserted in the court’s act of fact—finding and that it is this act
of fact—finding which is the condition to which is attached the positing of
the norm which orders the coercive act as a sanction: the act of the court
and not the statement which is its meaning (and the act must be clearly
distinguished from its meaning).
It is true that the judge is under a duty to make true statements in his
finding of fact, but even if the statement which is the meaning of the act
of fact—finding is false, even if the court finds that Schulze committed
theft—when ‘in truth’ Schulze did not do so—the condition for the
positing of a valid individual norm (a valid decision) by the court is
fulfilled. Admittedly, the parties can challenge the decision on the
ground that they consider the statement which is the meaning of the
court’s act of fact—finding not to be true. But as long as the court’s
decision has not been annulled by another judicial decision, it remains
valid whether or not the statement which is the meaning of the court’s
act of fact-finding is true. And if a judicial decision has become res
judicata, if it can no longer be annulled, then the question of the truth of
the statement which is the meaning of the court’s act of fact—finding is no
longer relevant. If someone says that an innocent person was convicted
because ‘in truth’ he did not commit the delict for which he was
convicted, then what he says is legally irrelevant. The law does not attach
a sanction as a consequence to a really occurring event (as condition), or
to the truth of the statement which is the meaning of the court’s act of
fact-finding, but rather to the competent court’s act of fact-finding
which has the force of law and whose meaning is the statement that there
occurred a certain event specified in the general norm to be applied by
the court.
 31
Positive and Negative Regulation
ofHuman Behaviour [73/ Law—
The Closure of the Legal Order:
Gaps in the Law
The normative legal functions were earlier said to be: commanding,
permitting positively, and empowering a certain behaviour. But not the
negative permitting of behaviour which is not the object of any legal
norm because it is neither commanded nor forbidden by any legal norm.
Nevertheless, negatively permitted behaviour can be considered to be
legally regulated (not positively but negatively), for it is subject to legal
regulation in the sense that it can become the object of a legal norm, and
in particular that it can be legally commanded or forbidden. Even
behaviour which is not determined by any legal norm is subject to the
legal order—if not actually, at least potentially. Behaviour which is not
the object of any legal norm, which is legally neither commanded nor
forbidden, is free. If a person is free to perform an act which is not the
object of any norm because it is legally neither commanded nor
forbidden, then it is in virtue of the law that he is free to behave in this
way: he is free within the limits set by legal norms addressed to him
which command, forbid, permit positively, and empower, and which
thus regulate his behaviour positively.
If we distinguish in this way between a positive and a negative
regulation of human behaviour by the legal order, all behaviour of a
person subject to a legal order is legally regulated, either positively or
negatively. In this sense, we can speak of the closure of the legal order.
Hence there can be no ‘gaps’ in the law, if by this we mean that some
human behaviour is not legally regulated and that valid law is therefore
not applicable to this behaviour. This is never the case, for valid law can
be applied to any case in which a person is legally called to account for
his actual behaviour, that is, when the question to be decided is whether
this behaviour represents an illegal act because according to valid law one
is to react to this behaviour with a consequence ordained by valid law.
This question can always be decided by applying valid law. In a primitive
legal order (i.e. one which is decentralized, which does not function by
division of labour, which does not have law-applying organs) the
132 Gaps in the Law ch. 31
question is decided by the person whose interests were harmed by the
behaviour 1n question. In a centralized legal order which makes use of
these organs, it is decided by the civil and criminal courts. If the court
finds that the behaviour of the accused or of the defendant submitted for
the court’s decision by the public prosecutor or the plaintiff is not
prohibited by any valid norm or even is neither forbidden nor
commanded by any valid norm (and so is not the object of any valid
norm), then the court, in order to apply valid law, must acquit the
accused or find for the defendant. And it must do so even when it is
convinced that the legislators did not foresee the present case and
conjectures that they would have posited a norm for cases of the present
kind, had they foreseen them (NOTE 84). This judicial decision, too,
represents an individual legal norm, the legal norm that no coercive act is
to occur as a sanction in this case. By specifying that a coercive act is to
occur as a sanction only on the condition that there occurs behaviour
forbidden by the legal order, the legal order specifies that if no such
behaviour obtains (i.e. if the behaviour which obtains is negatively
permitted, legally free), then no coercive act is to occur as a sanction. For
this reason the legal order can be applied even in this case. This shows
that if the people who live under a legal order are free to behave in a
certain way, it is in virtue of the law that they are free to behave in this
way, i.e. to do or refrain from doing some particular act.
People usually speak of ‘gaps’ in the law when they feel for some
moral-political reason that behaviour which is negatively permitted by
valid law (i.e. legally neither forbidden nor commanded, and so legally
free) ought to be legally commanded or forbidden. A ‘gap in the law’
thus means that there is a conflict between law and morality, i.e. between
positive law and some moral-political order. It does not mean that
positive law cannot be applied in this case, but only that for certain
moral—political reasons one ought not to apply it, that applying positive
law is not desirable in this sense, even though it is beyond question that it
can be applied. But then this can also be the case when behaviour is
positively regulated (e.g. commanded) by law but forbidden by a norm
of a moral order. When people think they have reason to believe that a
law--applying organ is empowered to "fill these‘gaps, this means that the
law—applying organ is empowered by positive law to decide the concrete
case in accordance with some moral—political principle 1t presupposes to be
valid: in such an event, this moral—political principle 13 the object of an act of
delegation by positive law, i.e. it becomes a legal norm (cf. Pure Theory of
Law (1967), 245 ff. ), and so positive law is applicable to the case. But a
consistent legal positivism requires that there be evidence that the positive
legal order contains an explicit or implicit grant of such a power. In the
absence of such evidence, the only sense in which a judicial decision can fill
a gap’ is in virtue of the principle of res judicutu.
 32
Rights, Daties, ana’ Sanctions
The concepts of ‘duty’ and ‘right’ (or entitlement) are intimately
connected with the functions of norms. ‘A norm commands a certain
behaviour’ is equivalent to ‘A norm imposes a duty to behave in this
way. "A person is “-duty bound” or has a “”duty to behave 1n a certain
way’ is equivalent to ‘There 1s a valid norm commanding this behaviour.
A duty 13 not something distinct from a norm: it is the norm in its
relation to the subject whose behaviour is commanded. The behaviour
which ‘fulfils’ the duty is the behaviour by which the norm is observed
or obeyed, the behaviour which agrees with the norm. The behaviour
which ‘violates’ the norm—as we say metaphorically—is the behaviour
which does nOt agree with the norm or—as it is usual to say—
‘contradicts’ the norm.
Since the norms of morality as well as those of law command
behaviour, so there are moral duties as well as legal duties. There is no
justification for the claim that the concept of duty is limited to the moral
realm. But moral and legal duties must be differentiated in the same way
as we differentiate between morality and law. The difference between
morality and law is nOt that their norms have different functions or
different objects; nor is it that law decrees sanctions while morality does
not, as almost everyone believes. The difference is that law commands a
certain behaviour—~i. e makes 1t a legal duty—by decreeing a sanction to
be obligatory when the opposite behaviour occurs, while morality
commands a certain behaviour (and thus makes 1t a moral duty) and then
attaches a sanction bOth to behaviour in accordance with the norm and to
behaviour violating the norm. Another difference—and this is a
difference only from a technical point of view—is that in a technically
developed legal order, organs functioning on the principle of division of
labour—courts and administrative agencies—are instituted to apply
sanctions, while a positive moral order empowers every member of the
community it institutes to execute the sanctions it prescribes.
It is customary to differentiate between legal norms which commanda
certain behaviour and legal norms which attach a sanction to behaviour
which is contrary to the former norms, and to call them primary and
secondary norms respectively: e.g. ‘One is not to commit theft; and if
someone commits theft, he is to be punished.’ But the first norm is
superfluous since legally the is~not-to—commit—theft consists merely in
the is—to-be—punished which is attached to the condition of theft.
134 Rights, Duties, and Sanctions ch. 32

Morality does nOt command something by attaching a sanction to the

immoral behaviour. In this case, there actually are two norms side by
side, e.g. ‘One is not to lie’ and ‘One is to disapprove of lying and
approve of refraining from lying.’
By a sanction decreed by a normative order, one usually understands
an act which is generally felt to be an evil and which—in accordance with
a norm of this order—is to be done to a person if he—or someone who
is socially related to him in a certain way—behaves in a way which does
not agree with this order. The evil can consist in the coercive deprivation
of valuable things, such as life, freedom, social and other goods—as in
the case of legal sanctions—or in disapproval of behaviour which is
contrary to the norm, in expressions of blame, manifestations of
contempt, and similar acts—as in the case of moral sanctions.
But we can also understand by a sanction an act which is generally felt
to be a good and which—in accordance with a norm of a normative
order—is to be done to a person whose behaviour agrees with the order.
This sanction, which is to be performed as a reaction to behaviour
agreeing with the norm rather than contrary to the norm, is to be found
only in morality and not in law. It consists in approval of the behaviour
agreeing with the norm and is expressed in praise, manifestations of
respect, and so on. When a positive moral order prescribes a certain
behaviour to the members of the community it institutes, it also
prescribes that these members are to react with approval and disapproval
to behaviour of other members which agrees with, or is contrary to, the
command. These sanction—d—ecreeing norms are an essential part of a
moral order, for they guarantee its effectiveness, and effectiveness 18 a
condition for its validity.
Norms of a legal order which empower certain organs of the legal
community to reward peOple who have earned the community’s
gratitude—e. g. by conferring on them certain rights or a special title or
certain decorations or a reward——do not decree legal sanctions, at any
rate not immediately. they do not decree reactions to behaviour agreeing
with the law (behaviour commanded by legal norms), but to behaviour
valuable to the community for other reasons. Admittedly, the behaviour
which is the reason for the diStinCtion can be legally commanded (for
example, when a medal is awarded for bravery), but it is not the fact that
the behaviour is commanded by the legal order—that it is behaviour
which agrees with the law—which is the condition for the distinction.
To deserve such a distinction, a person must—as we say——act above and
beyond the call of [legal] duty: the condition for the distinction is the
fact that it is especially valuable behaviour, i.e. behaviour in agreement
with norms other than legal norms. The awarding of such distinctions is
a moral sanction empowered by the legal order, but the fact that it is
empowered by the legal order makes it indirectly a legal sanction. But
 Rights, Duties, and Sanctions 135

these norms are not an essential part of a legal order, as are the norms
which prescribe coercive acts (such as punishment and execution of
judgment) for illegal behaviour.
The decreeing of sanctions is an application of an important principle
of social life, the principle of retribution. It can be formulated thus: If a
member of the community behaves in a way harmful to the community’s
interests, he is to be punished (i.e. evil is to be inflicted on him), and if he
behaves in a way beneficial to the community’s interests, he is to be
rewarded (i.e. good is to be done to him). The principle of retribution
expresses the principle of justice as equality: like for like, good for good,
evil for evil. Or in the words of the Old Testament principle of
retaliation: an eye for an eye, a tooth for a tooth.
 33
The Concept ofEntitlement: The
Various Significations oft/ois
Word—Rights
The words ‘right’, ‘entitlement’, ‘to entitle’, ‘to be entitled’ have a
number of quite different significations.
That someone is entitled or has a right to behave in a certain way can
mean that his behaviour is free, i.e. neither forbidden nor commanded,
and so is permitted in a negative sense. It can also mean that it is
permitted in a positive sense.
If someone has a duty to another person to behave in a certain way, we
say that the other person has a right to this behaviour. I have a right not
to be lied to by some other person because he is under a moral duty not
to lie. The right to a certain behaviour of another person is then a
reflection of the duty of the other person. This is a consequence of the
social character of moral and legal norms, which command behaviour
only if this behaviour concerns other pe0ple. The right of one person is
the duty of the other seen from the perspective of the person to whom
the duty is owed. That is why we call it [in German] a right in the
subjective sense of the word (NOTE 85).
The word ‘right’ can also have a specifically technical signification
within a legal order. One person’s right is then not simply the
reflection of another’s duty. A person has a right only if the sanction
to be ordered by the law applying organ—in particular a court——in
the event the duty 13 not fulfilled can occur only upon a motion by
the subject whose interests were harmed by the non—fulfilment of the
duty, so that the positing of the individual norm ordering the
sanction is conditional upon an action to that effect—a suit or a
complaint—on the part of the person to whom the (unfulfilled) duty
is owed. This person then has the law decreeing the duty at his
disposal: the law [0145 Recbt] is his law/ right [56in Rec/2t]. But this right is
not something other than the law or the legal norm. It is not a legally
protected interest, as many people suppose. It is the norm, the law,
which makes the positing of the individual norm ordering a sanction in a
concrete case dependent on an action to that effect by a given subject, it
is the law which empowers the subject to initiate this action. A right is
nm a legally protected interest; it is the protection of this interest. And
 Rights 137

this protection exists because the law grants to a subject the power to
bring about, by an action on his part, a proceeding in which an individual
norm is posited which prescribes the execution of a sanction against the
person violating his duty. In this sense, ‘to have a right’ means to have a
specific power conferred by the law, that is, the power to co-operate in
the creation of an individual legal norm by means of a specific action (a
suit or a complaint) The conferring of such a legal power is a function of
the law. Admittedly, it is confusing [in German] for the same word
[Rec/2t] to be used for the law and for the power conferred by the law.
English avoids this confusion since there is a word for ‘right’ different
from that for ‘law’. The legal power called a ‘right’ is of the same kind as
the power to create law which the law confers on judges, but this latter
power conferred by the law is not called a ‘right’. Rec/2t is the (power—
conferring) norm, not the power conferred by this norm (NOTE 86).
Conferring the power called a ‘right’ in this specifically technical sense
is a possible function, but not a necessary function, of a positive legal
order. But imposing duties, i.e. commanding behaviour, is essential to
every positive legal or moral order. Since ‘entitlement’ in all senses of the
word presupposes the imposition of duties, i.e. commanding (even being
permitted in the negative sense is possible only within a normative order
which commands behaviour), since entitlements and especially rights in
the technical sense are not possible without other people having duties
(while duties are quite possible without rights in the technical sense),
therefore it is incorrect for traditional jurisprudence (surely under the in—
fluence of Natural Law theory) to give pride of place to the concept of
entitlement (or right), to speak of right and duty (rather than duty and
right), to consider duties to be merely the protection and guarantee of
rights, or even to claim that duties are to be found only in morality and
rights only in law. If the concepts of "duty and ‘entitlement’ are to be
used in an account of the functions of a positive moral or legal order,
then the concept of ‘duty’, as the expression of the normative function of
commanding, must be the central concept in ethics as well as in legal
science, but without giving any solemnity to the concept, without
understanding ‘having a moral or legal duty to behave in a certain way’
to mean anything other than that there is a valid moral or legal norm
commanding this behaviour, and especially without attributing any
moral value to the concept of a legal duty (NOTE 87).
 34
Effectiveness, Validity, Positivity
1. Effectiveness and Sanctions

As was indicated previously, sanctions are decreed by a normative order

in order to guarantee its effectiveness. The usual view is that the
effectiveness of a normative order consists in the fact that its norms
which command a certain behaviour are actually observed and, if not
observed, then applied. The decreeing of sanctions presupposes that the
wish to avoid the evil decreed for violation of the norm or to obtain the
good decreed for the observance of the norm motivates people to act in
accordance with the norm. In the case of a legal order-assuming we
distinguish between secondary and primary norms—the wish in
question is that of avoiding the evil—punishment or execution of
judgment—decreed in the primary norm for the violation of the
secondary norm. Thus the effectiveness of a norm commanding a certain
behaviour 18 dependent on the effectiveness of the sanction— decreeing
norm, the primary norm. This appears to lead to an infinite regress, for
in order to guarantee the effectiveness of the primary—sanction-
decreeing-——norm, further sanctions would have to be decreed as
reactions to the violation or observance of this norm. But, in order to be
effective, sanction—decreeing norms, unlike other norms, do not need
sanctions as reactions to their violation or observance, or need such
guarantees to a much lesser degree than other norms which have to
command behaviour because this behaviour is, or can be, contrary to the
natural inclinations of human beings. It is easier to punish a thief than
avoid committing theft in dire need; it is easier to criticize a liar than
refrain from lying; it is easier to honour a hero than be a hero.
The motive for observing or applying a norm need not be the wish to
avoid the evil decreed for non—observance or non—application, or to
obtain the good decreed for observance. Norms can be observed and
applied for a variety of motives. And in most cases it is impossible to
determine what the actual motives are. In fact, when a norm is
considered to have been observed or applied, no attention is paid to the
motive which led to the behaviour which constitutes observance or
application of the norm.
Furthermore, the effectiveness of a norm does not mean that it is
always observed and applied without exception; it means only that it is
observed and applied by and large. Indeed, there must always remain the
 § 11 Effectiveness, Validity, Positivity 139
possibility that it will not be observed or applied, since if this possibility
did not exist (i.e. if that which ought to happen has to happen always and
without exception, in virtue of the laws of nature), then a norm decreeing
this behaviour to be obligatory would be superfluous. Just as it is
pointless to posit a norm which decrees to be obligatory something one
knows beforehand can never occur in virtue of the laws of nature.

II. Effectiveness as a Condition for Validity

Since on the one hand the effectiveness of a norm consists in the fact that
it is actually observed by and large, and since on the Other hand the
validity of a norm consists in the fact that it ought to be observed and if
nOt observed, then applied, therefore the validity of a norm must be
distinguished from its effectiveness as an Ought from an Is. The
confusion of the two concepts, the identification of validity with
effectiveness, is all too frequent in traditional ethics and jurisprudence
(NOTE 88). Now even though validity and effectiveness are completely
different, there nevertheless exists an essential relation between the two.
Effectiveness is a condition for validity to the extent that a single norm
and a whole normative order lose their validity—cease to be valid—if
they lose their effectiveness or the possibility of effectiveness.
In the case of general norms, this means: if they cease to be observed
by and large, and when not observed, to be applied. A general moral
norm such as ‘All human beings are to love their enemies’ may remain
non—observed by and large, and yet remain valid, namely if as a rule it is
applied by people generally disapproving of those who hate their
enemies rather than love them, i. e. if the moral norm in question is
applied to this behaviour. But if a state of affairs were to occur in which
enmity no longer existed between human beings, the moral norm could
be neither observed nor applied, and it would lose its validity. If a legal
norm forbids the killing of a certain species of animal by attaching a
punishment as a sanction to such killing, it would lose its validity if this
species became extinct and it were no longer possible to observe or apply
the norm. And a general legal norm which prohibits the sale of alcoholic
beverages by specifying that whoever sells alcoholic beverages is to be
punished with imprisonment would lose its validity if it happened that as
a result of resistance by the subjects of the norm it was not observed and
furthermore not applied by the competent organs. This is an instance of
what is called desuetude.
An individual norm loses its validity if it remains non——observed and
non—applied until 1t can no longer be observed or applied. For example,
the individual norm in a judicial decision that a certain person is to be
140 Effectiveness, Validity, Positivity ch. 34

imprisoned loses its validity if it remains non—applied until the person

dies.
The effectiveness of a norm—which is an Is—is the condition for the
validity of a norm—which is an Ought—in the sense that a norm loses
its validity when it loses its effectiveness or the possibility of effective-
ness, but not in the sense that a norm has to be effective in order to be
valid, since a norm becomes valid before it is effective and it can become
effective only once it has become valid (NOTE 89). But in order to become
valid, it must have the possibility of being effective, for a norm which
decrees something impossible to be obligatory—such as a norm that
human beings are not to die—cannot be valid since it cannot be effective
from the very beginning. For a norm to decree something impossible to
be obligatory means that it cannot be observed or applied by anyone.
Thus it is irrelevant to object that a norm which is nOt observed by a
specific individual in a concrete case always decrees something imposs-
ible to be obligatory, since the subject’s violation of the norm—just like
all behaviour—is causally determined and it was impossible for him to
act in any other way (i.e. to observe the norm) in tbis concrete case: as
long as the norm can be observed in other cases, the possibility of
observance exists.

III. The Positivity of Law and Morality

But effectiveness (as well as the possibility of effectiveness) is not the

only condition for validity. There is another fact (another Is) which is a
condition for the validity of a norm: the fact of its positing (which is an
Is). Only a norm posited intentionally or by way of custom1 can be valid
as a positive norm of morality or law.
The positivity of morality and law consists in these conditions for
validity: positing by human acts, and effectiveness as explained above.
Just as the facts of being born and being fed are conditions for human life
without themselves being life, so the facts of being posited and being
effective are conditions for the validity of a norm without themselves
being validity.
The preceding explanations—inasmuch as they concern general legal
norms—are based on the usual formulation of a general norm: ‘If an
illegal situation (delict) occurs, then a legal consequence (sanction) is to
occur.’ But they require an important correction if the general norm is
given its correct formulation: ‘If a competent law—applying organ
(especially a court) ascertains that a state of affairs specified abstractly in
a general legal norm has occurred concretely, the competent court is to
1 Concerning the nature of the state of affairs called ‘custom’, cf. Tbe Pure Tbeory of Law
(1967) 9, 53—4, 213, 223, 224—9.
§ III Effectiveness, Validity, Positivity 141
posit an individual norm which decrees to be obligatory a concrete
coercive act which agrees with the coercive act specified abstractly in the
general norm.’ This general norm is effective when it is applied by and
large, that is, when by and large the competent courts, once they have
found a concrete state of affairs subsumable under the state of affairs
specified abstractly in the general norm, posit an individual norm which
decrees to be obligatory a concrete coercive act subsumable under the
coercive act specified abstractly in the general norm, and furthermore
when this individual norm is observed, that is, the coercive act is
executed. Whether a general norm is effective therefore does not depend
on the actual observance of the norm we have called the ‘secondary’
norm (i.e. on behaviour which avoids the sanction) but on the judicial
finding that there obtains a concrete state of affairs which is the
condition for a sanction. But the general norm is also applied—and thus
is effective—if the court finds that the concrete state of affairs which is
the condition for the sanction—and which the prosecutor or plaintiff
claims exists—does not exist, and so dismisses the plaintiff’s. case or
acquits the accused, that is, posits an individual norm which specifies
that no coercive act is to be performed. The general norm can even be
considered to be effective if it is never applied, but only when the courts
are never in a situation to find a concrete state of affairs which is the
condition for sanctions and is specified abstractly in a general norm,
because such a state of affairs never occurs or no longer occurs, even
though it is still possible for it to occur. But we cannot say that a general
norm is effective if concrete states of affairs of the relevant kind do occur,
but the courts do not become aware of them for some reason or other.
 35
Primary and Secondary Norms—
The Difference between Law and
Morality
If a normative order contains not only norms which command a certain
behaviour, but also norms which decree sanctions for the non-
observance of norms (as in a positive legal order) and even sanctions for
the observance of norms (as in a positive moral order), then the norm
which commands a certain behaviour and the norm which decrees a
sanction for the non—observance or observance of the first norm form a
unity. But this unity may not be expressed in the actual formulation of
the norms.
If it is assumed to be essential for law that a distinction be made
between a norm commanding a certain behaviour and a norm prescribing
a sanction for the violation of the first norm, then the former norm must
be called the primary norm, and the latter the secondary norm—and nOt
the other way around as I have expressed it in earlier chapters. The
primary norm can then exist quite independently of the secondary norm.
But it is also possible for the primary norm—the one commanding a
certain behaviour—nOt to be expressly formulated, and only the
secondary norm—the one decreeing a sanction—to be expressly
formulated. Many legal norms are formulated 1n this way in modern
statutes. A modern legislator does not say (1) ‘One is not to commit
theft’ and (2) ‘If someone commits theft, he 18 to be imprisoned, or (1)
‘Loans are to be repaid’ and (2) ‘If someone fails to repay a loan, it is to
be forcibly recovered from his assets.’ Rather, he usually limits himself
to positing the norm which attaches to theft the sanction of imprison—
ment or to the non-repayment of loans the sanction of forcible
execution; in Other words, the norm prescribing the behaviour which
avoids the sanction is in fact superfluous since it is implicit in the
sanction—decreeing norm (as was indicated earlier). The norm decreeing a
coercive act as sanction then appears as the primary norm, and the norm
implicit in it (which is not in fact, and need not be, expressly formulated)
the secondary norm. This shows the decisive role which sanctions
consisting in coercive acts play in that coercive order which is law.
Decreeing this sanction is so essential that we can say that the law
commands a certain behaviour simply by attaching to the opposite
 Primary and Secondary Norms 143
behaviour a coercive act as sanction, so that the behaviour can be
considered legally ‘commanded’—i.e. the content of a ‘legal duty’—only
when the opposite behaviour is the condition to which a norm attaches a
sanction.
There is a basic difference between positive law and positive morality
in this respect (NOTE 90). It is n0t just that the sanctions of morality are
not coercive acts. It is that the connection between a moral norm
commanding a certain behaviour and the norm decreeing the sanctions of
approval and disapproval for observance and non——observance respect—
ively cannot be considered as essential as the connection between the
two corresponding norms in the realm of law, and so we cannot say of a
positive moral order that it commands a certain behaviour simply by
attaching the specific sanctions of approval and disapproval to this
behaviour and its opposite. A certain behaviour is considered to be the
content of a moral duty independently of the sanction which a moral
norm decrees for the fulfilment or non--fulfilment of this duty. Within
morality, the norm commanding a certain behaviour is the primary norm
and the sanction—d—ecreeing norm is the secondary norm m all circum—
stances. A moral order too contains norms which decree sanctions for
behaviour which agrees or fails to agree with other moral norms. But
these norms do not form with the Other norms a unity as inseparable as
that between the analogous norms of a legal order.
 36
The Spatio-temporal Validity of
Norms: Territorial and Temporal
Spheres of Validity
Since human behaviour, as well as its conditions and its effects, takes
place in space and time, both the area and the time in which the states of
affairs specified in the norm take place must be specified in the content
of the norm. The validity of norms regulating human behaviour—and of
legal norms in particular—is spatio-~temporal validity, in so far as these
norms have spatio—temporal events as their content. That a norm is valid
always means that it is valid for some area and for some time, that is, that
it is about events which have to occur somewhere and at some time.
A norm’s relation to space and time is the norm’s territorial and
temporal sphere ofvalidity It can be limited or unlimited. A norm can be
valid for a certain area and a certain time, as specified by it or by some
higher norm; in other words, it can regulate events which occur only
within a certain area and a certain period of time. A characteristic
example of a limited territorial sphere of validity is the sphere of validity
of the norms of a State legal order: this sphere of validity is considered to
be an element of the State, namely its ‘territory’. But a norm can also—in
virtue of its meaning—be valid everywhere and always, that is, concern
events wherever and whenever they may occur. Such is the meaning of a
norm when it contains no particular specification of territory or time,
and when no higher norm limits its territorial or temporal sphere of
validity. In such a case, the norm is not valid as it were outside of space
and time, but its validity is nOt limited to a specific area and time: its
territorial and temporal sphere of validity is unlimited. The sphere of
validity of a norm is a component of its content, and this content can be
predetermined to a certain degree by a higher norm (as we shall see).
As far as the temporal sphere of validity of a positive norm is
concerned, we must distinguish between the time following and the time
preceding the positing of the norm. As a rule norms are only about
future behaviour, that is, behaviour which takes place after the positing
of the norm. But they can also be about the past, that is, behaviour which
took place before the positing of the norm. This is generally recognized,
as far as legal norms are concerned. One then speaks of the ‘retroactive
effect’ of a legal norm. Such is the case if a general legal norm (which
 .Spatio-temporal Validity of Norms 145
attaches a sanction as a consequence to the condition which consists in a
certain behaviour) specifies that this sanction is to be executed even if the
behaviour constituting the condition took place before the positing of
the legal norm, so that (for example) people are to be punished for their
behaviour even if it took place before the punishment—decreeing norm
was posited and so is characterized as a delict after the fact, i.e.
retroactively. If we suppose that when a legal order attaches a coercive
act (as a sanction) to a certain behaviour (as a condition) there exist two
general norms, one decreeing that a certain behaviour is obligatory and
the other that a certain coercive act is obligatory as a sanction for the
opposite behaviour (the condition), then (when the effect is retroactive)
the first norm decrees behaviour which already took place to be
obligatory. But it is also with respect to the sanction it decrees to be
obligatory that a general norm can have an effect not only for the future
but also for the past (i.e. a retroactive effect). It can specify not only that
under certain conditions occurring before the positing of the norm
coercive acts are to be performed (in the future), but also thatcoercive
acts which were actually performed in the past were to be performed
(even though they were not legally decreed to be obligatory, i.e. without
having the character of sanctions, and therefore having the character of
delicts), so that they must henceforth be considered to be sanctions and
nOt delicts. It is in this way that, for example, under the Nazi regime in
Germany certain coercive acts which were legally murder when they
were performed were subsequently legitimized as sanctions with
retroactive effect, that is, were divested of their character as delicts while
the behaviour to which they were directed was characterized as a delict.
A legal norm can also retroactively repeal the validity of a general legal
norm enacted before 1t was posited, and indeed can do so in such a way
that the validity of the general norm is repealed not only for the future
(and so is no longer to be applied not only 1n the future), but the coercive
acts performed as sanctions in accordance with the previous general
norm are retroactively divested of their character as punishment or
execution of judgment, and the human acts which were the conditions
for these coercive acts are retroactively divested of their character as
delicts. For instance, a statute of a regime which came to power by
revolutionary means can repeal the validity of a statute enacted by the
previous government according to which certain acts performed by
members of the revolutionary party were punished as political crimes.
Admittedly, what is done cannot be undone, but the normative
interpretation of events long past can be changed retroactively by means
of norms posited after the events to be interpreted.
In this sense, even general norms of morality can be valid retroact—
ively. In applying the norm posited by Jesus ‘Love your enemies’, we
can approve of—as morally good—and disapprove of—as morally
146 Spatio—temporal Validity of Norms ch.36
bad—even historical events which occurred before the birth of Jesus:
this presupposes that we interpret the norm issued by Jesus 1n the sense
that people are to have loved their enemies even in the past, that Jesus
gave his commandment to love for all times.
As far as individual legal norms are concerned, especially judicial
decisions which find for the plaintiff or convict the defendant and so
decree that a future coercive act is obligatory, they always concern actual
behaviour which took place before the positing of the individual legal
norm. Nevertheless, we do not speak of retroactive effect in these cases,
and rightly so, in so far as the judicial decision applies a general legal
norm which was already valid when the behaviour in question occurred.
But a judicial decision does have a retroactive effect if it does not apply a
general legal norm (attaching a specific sanction to a specific state of
affairs) which was valid at the time the behaviour in question took place,
that is, if the behaviour which the judicial decision concerns was not a
delict according to positive law at the time it actually occurred.
 37
The Personal and Material Spheres
of Validity
Besides the territorial and temporal spheres of validity, we can also
distinguish a personal and a material sphere of validity. For the
behaviour regulated by norms is human behaviour, so that in all
behaviour specified by a norm we can distinguish between a personal and
a material element, between the person who is to behave in a certain way,
and the way in which he is to behave (and the conditions under which he
is to do so). The two elements are inseparably connected. It should be
noted that when the norm commands, empowers, or positively permits a
certain behaviour, it is not the human being in his entirety which is
subject to a norm, but always only a certain behaviour of his. Human
beings as such are concerned by norms only to the extent that a norm
decrees to be obligatory a certain act against a specific human being (for
instance, a legal norm prescribing the death penalty or deprivation of
freedom). But this relation does not represent the personal sphere of
validity of a norm. This sphere of validity is concerned with the personal
element of the behaviour specified in the norm. It can also be limited or
unlimited. A moral order can claim to be valid for all human beings, that
is, the behaviour specified by the norms of this order is the behaviour of
every human being and not merely of human beings specified by
the moral order. This is usually expressed by saying that the moral order
applies to all human beings (NOTE 91). The behaviour specified by the
norms of the State legal order is only the behaviour of human beings who
live in the territory of the State or who are citizens of the State (outside
State territory). We say that the State legal order regulates only the
behaviour of those human beings specified in this way, that it is only
these human beings who are subject to the State legal order: in other
words, the personal sphere of validity is limited to these human beings.
We can speak of a material sphere of validity if we think of the
different areas of human activity which are regulated, such as economic,
religious, political behaviour, and so on. We say of a norm which is
about the economic behaviour of people that it regulates the economy, of
a norm which is about religious behaviour that it regulates religion, and
so on. When we speak of the different objects of norms, we mean the
different areas of behaviour specified by norms. What the norms of a
normative order regulate is always human behaviour; it is only human
148 Personal and Material Spheres of Validity ch. 37
behaviour which can be regulated. States of affairs Other than human be—
haviour can be the content of norms only if connected with human
behaviour (as was previously nOted), only as the condition or the effect
of human behaviour. The concept of the material sphere of validity is
applicable, for example, if a total legal order—e.g. in the case of a federal
State—is divided into a number of partial legal orders whose spheres of
validity are mutually separate with reference to the objects they regulate,
for instance, when the legal orders of the member—States are permitted to
regulate only specific objects enumerated in the constitution or (as it is
usually expressed) if it is only the regulation of these objects which falls
within the competence of the member—States, and the regulation of all
other objects is reserved to the legal order of the central State (which is
also only a partial legal order) or, in other words, falls within the
competence of the central State. But the material sphere of validity of a
total legal order is always unlimited, in so far as a legal order—by its
very nature—regulates (either in a positive or in a negative sense) the
total behaviour of the people subject to it.
 38
The Expression oft/06 N07m-
positing Act—Statements about
Narms
I. Forms of Expression of the Norm—positing Act—The Linguistic
Expression: Imperative or SoHen-sentence—Is-sentences: Statements
as the Expression of a Norm-positing Act

The act whose meaning is a norm can be performed in quite different

ways. By a gesture: the traffic policeman orders people to stop with a
motion of his arm, and then orders them to proceed with anOther mOtion
of his arm By other symbols: a red traffic light means that the
automobile driver 13 to stop, and a green that he 18 to proceed. By spoken
or written words: the linguistic expression of a norm can appear
grammatically 1n different forms. In the form of an imperative, as for
instance in Luther’s translation of the Bible, the fourth commandment,
‘Remember the sabbath day’ (Exod. 20: 8), and the tenth, ‘Do not covet
thy neighbour’s house’ (Exod. 20: 17), or Jesus’s command ‘Love your
enemies’ (Matt. 5: 44). The view advanced by some that there are
different degrees of imperatives is incorrect (NOTE 92).
But a norm can also be expressed in sollen—sentences, as the fifth
commandment, ‘Thou art to honour thy father and thy mother’ (Exod.
20: 12), and most of the other ten commandments, or Jesus’s command
‘But I say unto you that ye are mm to resist evil’ (Matt. 5: 39) and ‘Ye are
therefore to be perfect, even as your father which is in heaven is perfect’
(Matt. 5: 48). And not only in sollen—sentences, but also in is—sentences
(statements): the norm prescribing that thieves are to be punished by
imprisonment is sometimes formulated in a criminal statute as ‘Theft is
punished by imprisonment.’ But the meaning of this sentence is not, as
its grammatical form would suggest, the statement that theft is actually
punished by imprisonment If this were its meaning, it would be false,
since thieves sometimes are not punished 1n spite of the validity of the
statute. Its meaning is that theft 25 to be punished by 1mprisonment. A
father can order his son to shut the door by uttering the imperative
sentence ‘Shut the door’, but also by uttering the statement—sentence ‘I
wish you to shut the door.’ According to its grammatical form this
sentence is a statement about the existence of a mental process within the
150 Norms and Statements about Norms ch. 38

speaker; but it actually expresses the very same meaning as the

imperative sentence, even though its grammatical form is not an
imperative.
From the point of view of logic, it is not the linguistic expression
which matters, but its meaning, and one cannot always gather this
meaning from the linguistic expression as such. The meaning depends on
the intention of the person using the linguistic expression (NOTE 93). The
specifically logical problem is therefore not—as it is usually put—the
logic of imperatives, but the logic of commands or orders—and since
ordering or commanding is not the sole normative function—the logic of
norms. It is the question whether logical principles apply not only to
descriptive statements, but also to prescriptive norms (to be more exact:
commanding, positively permitting, empowering, or derogating norms).
The norm can, though need not, be expressed in a sentence, that is, in a
linguistic form made up of a subject and a verb. The grammatically
appropriate expression of a command is an imperative, and that explains
why our present problem is treated as one of the logic of imperatives.
But in fact, commands can also appear in sentences which have the
grammatical form of statements (NOTE 94).

II. Norms and Statements: Prescription and Description

If we look only to the linguistic expression, we can easily be misled, since

the same linguistic expression can have not only a prescriptive, but also a
descriptive signification. This 1s especially so with sollen——sentences. This
ambiguity 1s due to the fact that a sollen——sentence can be a statement
about a norm as well as a norm, while an imperative can only be the
expression of a norm and nOt a statement about a norm, and also to the
fact that a sentence which asserts the existence or validity of a norm must
be a sollen—sentence and not an is—sentence, that is, cannot be a sentence
which asserts the existence of a fact. In other words: an imperative—
sentence can only have an imperative, and nOt a descriptive, signification.
It differs from a sollen-sentence in this way.
Another way in which an imperative sentence differs linguistically
from a sollen—sentence is that an imperative sentence is usually in the
second person—‘(You), love your neighbour’—while a sollen——sentence
is used with all three persons: ‘1 am, you are, he 1s to love my, your, his
neighbour. Linguistically, an imperative sentence is always 1n the second
person, since the person to whom 1t is addressed necessarily faces the one
uttering the imperative as ‘you’. The norm commanding the love of one’s
neighbour can be formulated in a sollen—sentence in the second as well as
the third person: ‘You (human beings) are to love your neighbour’ or
‘Human beings are to love their neighbour.’ But as an imperative
§ III Norms and Statements about Norms 151
sentence, it can only be ‘Love your neighbour.’ Even the imperative
which I address to myself is linguistically an imperative sentence in the
second person, for I say to myself: ‘You, my alter ego, love your
neighbour.’1

III. Statements about a Norm: The Ambiguity of ‘Sollen’

Sigwart recognized the ambiguity of sollen (1895: i. 17 f.). Speaking of an

imperative (as opposed to a statement-sentence), he says:
It does not call for belief but obedience. . . . No essential difference occurs in this
primary and usual meaning of the Imperative as the expression of a particular
individual will when it takes the form of a general law [i.e. a general legal norm].
When the legislator addresses an Imperative to the citizens of the State or members of
the religious community . . . his purpose in speaking is not to communicate a truth
which they are to believe, but to announce a command which they are to obey . . .
The import of what is said is not the communication of a truth but the summons to
do this, to leave that undone. The form ‘Thou shalt’ [Du sollst] again, which appears
in laws such as those of the Decalogue, has originally no other significance. Shall
[Sollen] is the correlative of will.
That is nOt quite correct. Ought is the meaning not of every act of will,
but only of an act of will directed to the behaviour of another. ‘In
delivering the command of master to servant we say “thou shalt do so
and so”; it contained originally no more than the simple Imperative, the
revelation of a law to one whom I hold to be subordinate to the will of
another, either of a third person or myself.’ That is nOt correct either. In
the sentence ‘You are to do such and such’ spoken by the person
‘delivering’ the master’s command to the servant, the ‘sollen’ has no
imperative signification, for the bearer of the command is not the
commander. The bearer of the command informs the servant that there
exists a command from his master. The sentence he utters is a statement
about a command. The Ten Commandments, according to the Old
Testament, are nOt norms posited by Moses, but are transmitted to the
people of Israel as norms posited by God. They are spoken by God
himself. They are introduced by ‘And God spoke all these words.’ He
spoke amidst thunder and lightning. When the people saw this, they fled
and standing afar said to Moses: ‘Speak to us; we are willing to obey.’ A
father says to his son: ‘Karl, shut the door.’ The son, busy with his
homework, appears not to hear his father. So his mother says to him:
‘Karl, you are to shut the door.’ It is the father who commands, and mm
the mother. The sentence spoken by the mother is not a command, but

1 Cf. Hall, (1952: 156 f.). Hare says: ‘Given such omniporence, anything could become the
subject of a command; any event which could be described by an indicative sentence could
equally well be commanded by an imperative sentence’ (1949: 26).
152 Norms and Statements about Norms ch. 38

the statement about the father’s command. The ‘sollen’ in this sentence
has a descriptive and not an imperative signification.
Sigwart continues:
But this form now contains a twofold meaning mm to be found in the simple
Imperative. ‘Shall’ [sollen] may also have the force of a prOper Predicate in a
statement meant to be true; it signifies duty, obligation, and is thus a modal
Predicate . .' . expressing the relation between the subjective individual will and an
authoritative power, or an objective law. The original Imperative here passes over
into the significance of a Predicate expressing the obligatory relation of a command
to the will to which it applies; and if we assume a legal or moral constitution, the
statement that I am under an obligation may be true or false.

If the sentence ‘You are to do such and such’ means ‘You are obligated to
do such and such’, and if it is uttered on the assumption ‘of a legal or
moral constitution’, then 1t is, as Sigwart correctly says, a ‘proposition of
statement or declaration’ arid then the sollen in this sentence has a
descriptive and not an imperative signification. It IS true or false. But
then it is incorrect to say that the imperative has now ‘passed over’ into
the signification of the predicate ‘sollen’. For the word sollen in a
statement-sentence does not have any imperative signification at all, but
only a descriptive signification. Sigwart’s merit is that he pointed out the
‘ambiguity’ of sollen, even if his exposition of this ambiguity is not quite
correct. Sigwart ends this exposition with the pertinent remark: ‘Thus
the mere grammatical form is no infallible indication that we have to do
with a statement [i.e. which is true or false]. A statement is nothing more
than a proposition which is meant to be true, and of which we can ask
whether it be true or false’ (NOTE 95).
A sollen—sentence which is not a norm, but rather a statement about
the validity of a norm, is the meaning of an act of thought and——like any
statement—is true or false, unlike a sollen-sentence which is a norm and
as such the meaning of an act of will. A sollen-sentence which is the
meaning of an act of thought, and so is not a norm but a statement about
the validity of a norm, is true only if the norm whose validity it asserts is
the meaning of an act of will, that is, only if this norm is actually posited
by some moral or legal authority. The statement ‘The legal norm “If
anyone commits adultery, he is to be punished with imprisonment” is
valid’, formulated in the descriptive sollen——sentence ‘If anyone commits
adultery, he 13 to be punished with 1mprisonment’ , is true only if this
norm is posited by the legislator or created by way of custom. If the
descriptive sollen——sentence occurs, in a textbook on criminal law or is
uttered by a lawyer who has been asked by a client what the law provides
in cases of adultery, and there is no act of will of the legislator or any
collective will expressing itself in custom, of which this norm is the
meaning, then the statement is false. If ethics and legal science are called
‘normative’ sciences, this means—as must always be emphasized—not
§ IV Norms and Statements about Norms 153
that they posit norms (that they prescribe human behaviour) but that
norms are their object (that they describe norms) (NOTE 96).

IV. The Sentences of Legal Science: Statements about Legal Norms

Since a norm is the meaning of an act of will directed to the behaviour of

another, and since therefore the act of which a norm is the meaning must
be distinguished from the meaning itself (i.e. the norm), similarly the
statement about a norm (the statement about the existence, the validity
of a norm) must be distinguished from the statement about the act of
which the norm is the meaning (the statement about the occurrence of
the act in natural reality). The act is an Is, the norm is an Ought. In legal
science, this distinction is quite familiar. The act of legislation, the
legislative process (which can consist in a number of acts) is clearly
distinguished from the statute which—as we say metaphorically—is its
‘product’, is ‘created’ by it, and is—this time without any metaphor—its
meaning.
Statements about the statute, the sentences in which the statute is
presented (i.e. described), are different from sentences about the act or
acts of legislation. Legal science contains sentences which are statements
about legal norms. They present legal norms; they describe legal norms.
These sentences are not themselves norms, but statements about norms.
As a science, legal science can only know and describe the norms which
are given to it; it cannot posit norms or prescribe anything. But the
sentence which is a statement about a norm (for instance, about the norm
posited by the legislator of state X prescribing that theft is to be punished
with imprisonment and reading ‘If anyone commits theft, he is to be
punished with imprisonment’), this sentence which asserts the existence
or validity of this norm, which describes this norm, can read only ‘If
someone commits theft, then—in virtue of the statute of state X—he is
to be punished with imprisonment.’ It cannot read ‘If someone commits
theft, he is punished’; such a sentence would be false, since it sometimes
happens that in state X thieves are not punished. Nor can it read ‘The
legislator of state X has enacted a statute which prescribes that theft be
punished with imprisonment. ’ For this sentence describes the act of
positing the norm (and not the norm), the act of which the norm is the
meaning, and not the norm which 13 the meaning of the act. The norm of
the legal authority and the statement of legal science about this norm can
have the same wording. But in the sentence of legal science ‘If someone
commits theft, then—in virtue of the statute of state X—he is to be
punished with imprisonment’, the word ‘sollen’ has a descriptive
signification, while it has a prescriptive signification in the norm issued
by the legal authority. A sollen—sentence which is the linguistic
154 Norms and Statements about Norms ch. 38

‘expression’ of a norm expresses immediately the meaning of an act of

will directed towards the behaviour of another, without the intervention
of an act of thought or cognition. A sollen—sentence which is the
linguistic expression of a statement about a norm expresses immediately
the meaning of an act of thought without the intervention of an act of
will. One can call the act of which a norm is the meaning a ‘prescription’
[Vorschreihimg], in contrast to the meaning of this act, which one can
call by the linguistically different name of‘pre’script [Vorschrift]. But a
similar linguistic distinction 18 not possible 1n the case of a statement
about a norm. Here the only word available 18 ‘description’ [Beschrei-
hang], which is used both for the act of thought and for the meaning of
the act of thought, since there is no word ‘descript’ [Beschrift] ana10gous
to ‘prescript’ [Vorschrift].

V. Legal Science and Law; Ethics and Morality

It is essential to distinguish terminologically between a norm and a

statement about the validity of a norm, in order to avoid the
inadmissible, though always recurring, confusion between normative
science and the object of its cognition (i.e. the norms), between ethics
and morality (NOTE 97), and between legal science and law (NOTE 98).
For this purpose, German legal terminology offers us two expressions:
‘legal norm’ [Rechtmorm] and ‘proposition of law’ [Rechtssatz]. I have
pr0posed to call ‘legal norms’ only the prescriptions posited by legal
authority, and ‘propositions of law’ the sentences describing the legal
norms and formulated by legal science; this is in conscious opposition to
customary linguistic usage which treats both terms as synonymous.
What was said about the difference in signification between the sollen
in a legal norm and the sollen in a statement about the validity of a legal
norm applies equally to the difference in signification between the sollen
in a moral norm and the sollen in a statement about the validity of a
moral norm. Statements about the validity of moral norms are the
sentences by which ethics (understood as a science) describes a certain
morality, for instance the Judaeo-Christian morality posited by Moses
and Jesus. In the mouth of God or of a person considered to be a prophet
or the Son of God (i.e. a moral authority positing moral norms), the
word sollen—say in the sentence ‘You are not to kill’—has a prescriptive
signification. For the sentence is a norm; it is the meaning of a divine act
of rwill, mediated by the prophet or the Son of God, and directed to the
behaviour of human beings. In an ethics presenting—Le. describing—
]udaeo—Christian morality, the word sollen in the sentence, ‘A human
being is not to kill other human beings’ has a descriptive signification.
The sentence of the ethicist is not a norm, for ethics as a science cannot
§V Norms and Statements about Norms 155
prescribe anything, but only describe the norms given to it. As a
scientist, the ethicist is no more competent to posit moral norms than the
legal scientist is competent to posit legal norms; the ethicist has no more
justification for claiming any moral authority than the legal scientist has
for claiming any legal authority (NOTE 99).
Instead of saying that sollen is ambiguous (i.e. has a prescriptive and a
descriptive signification), we can also speak of a ‘genuine’ and an
‘inauthentic’ sollen, the former being the 5011671 in the norms posited by
moral or legal authority, and the latter the 5011672 in the statements of
ethics or legal science about the validity of norms. This terminology
presupposes that when the sentence ‘Human beings are to love their
enemies’ is asserted in an ethics describing Christian morality, or the
sentence ‘If anyone commits theft, he is to be punished with imprison—
ment’ occurs in a textbook describing a positive legal order, what is
meant is respectively ‘The norm “Human beings are to love their
enemies” is valid’ and ‘The norm “If anyone commits theft, he is to be
punished with imprisonment” is valid.’ In the words between double
quotation marks, the sollen has a prescriptive signification. But the
double quotation marks exclude the prescriptive signification from the
whole sentence which quotes the norm. The two sentences quOting the
norms are, according to their meaning, statements about the character—
istic ideell existence (the Is) of a prescriptive Ought, and are therefore is-
sentences which can be true or false. When they are formulated
linguistically as sollen——se,ntences the word sollen used in them is not a
genuine (i. e. prescriptive) 5011672, but an inauthentic or descriptive 5011671.
The fact that the prescriptive norm and the statement describing 1t are
expressed linguistically in identically-worded sollen——sentences may
explain why norms are confused with statements about norms, and
consequently law with legal science, and—even more so, indeed almost
always—morality with ethics, a fact of the greatest consequence for the
question of a logic of norms. For the application of logical principles to
the sentences of legal and moral science is beyond question; but nOt so
the application of logical principles to the object of these sciences, i.e.
norms. The latter does not follow from the former, just as the application
of logical principles to natural science does not entail that these
principles are applicable to the object of this science, i. e. the facts of
natural reality.
 39
Norms which are not the Meaning
ofActs of Will? Mally’s Theory
The failure to distinguish between a norm (an Ought) and a statement
about the validity of a norm (of an Ought) leads to the view that norms,
especially the norms of morality, are not the meaning of any act of will,
but are norms without any norm—positing authority, and when they are
commands or requirements, must be considered to be commands
without any commander, requirements without any requirer. An
important representative of this view is Ernst Mally (1926). True, he says
that ‘the Ought, or more strictly the ought-to—be, of a state of affairs
corresponds to a willing as its objective counterpart’ (p. 10). But he then
rejects the view “A ought to be” means nothing other than that A is
willed by someone’. That is correct because willing is an Is and so cannOt
be an Ought. But this is not Mally’s reason for rejecting this reduction of
ought to willing. He says
that in many cases of ought we shall be embarrassed to indicate the subject or
subjects of the relevant willing, . . . in precisely these cases—and they include the
most important, those of ethical ought—the impartial person does not miss such a
subject at all, because he does not think at all of a will or a willing subject. (p. 11)
From this Mally draws the conclusion that there need ‘nOt be a willing
corresponding to every ought’. Mally calls the state of affairs that
something ought—to—be a ‘requirement’, but ‘in a sense of the word
which does not take into consideration any desire or desiring subject’
(p. 12). The requirements (and that means the norms) of morality are
therefore requirements without any requirer, norms without any norm-
positing authority. Mally distinguishes the case ‘where something ought-
to--be purely in the sense of a willing person, from the case where
something actually ought-to—be, and therefore simply ought-to-[96
without regard for any will’ (p. 11). By ‘actually ought—to-be’ Mally
understands a requirement which is ‘justified’. He speaks in this case of
an ‘objective ought’ (p. 18). Of this ought, he says there is no will ‘which
can create this ought’ (p. 11). Even the ‘will of the State, of the totality of
things, of a deity’ is unable to do so. Even such a will ‘corresponds to the
ought and pays heed to it in a certain sense, even if it is wholly indifferent
to its existence’.
Mally arrives at this paradoxical result because he draws a parallel
between the relation between an act of will directed to the behaviour of
 Mally’s Theory 157
another and the Ought of this behaviour on the one hand, and the
relation of the act of cognition to the Is which forms its object on the
other. The act of will creates no Ought, ‘just as an act of cognition pays
heed to a fact in its own way, but without creating or instituting the fact’.
Justified willing, to which actual Ought corresponds, would be
analogous to true cognition, and unjustified willing, to which no actual
Ought corresponds, would be analogous to false cognition, i.e. a
judgment ‘about a state of affairs which does nOt exist’ (p. 11). But there
is no such parallel or analogy. Ought is the meaning of an act of will, but
the existence of a fact is not the meaning of an act of thought. The
meaning of an act of thought is a judgment, a statement about a fact;
what is analogous to this statement is the statement about a norm, about
an Ought, which statement is also the meaning of an act of thought and
not of an act of will. It is clear from the following that Mally confuses the
Ought (i.e. the norm) with the statement about the norm:
We can always replace ‘A ought to be’ by ‘It is valid (it is the case) that A ought to
be’, for the one clearly does not apply without the other, and so we have replaced the
requirement by what could be called an ordinary theoretical state of affairs,
something which a person can think in a judgment or a mere assumption, without
willing anything. (p. 12)
The ‘theoretical state of affairs’ which we can ‘think’ is the statement that
an Ought ‘exists’, that a norm is valid. But we cannot replace the
requirement (i.e. the norm) by a theoretical state of affairs (i.e. the
statement about the norm), for a norm and a statement about a norm are
two things as different from each other as any object of cognition and the
cognition of that object. What is analogous to the relation between the
statement about a fact and the fact is the relation between the statement
about an Ought and the Ought, and nOt the relation between will and
Ought.
Mally’s assumption that we can always replace a norm by the state—
ment about the validity of this norm must be distinguished from the
frequently advanced view that we can think of norms without willing the
Ought or without anyone else willing the Ought, that is, that there can
exist merely thought norms which are the meaning of acts of thought and
not of acts of will. We shall have to return to this claim later (ch. 58.x1).
 40
The Norms ofMorality are not
Commands? Manfred Moritz’s
Theory: ‘Genaine’ and
‘Inaat/oentic’ Commands and
Compliance
The failure to distinguish between a norm and a statement about the
validity of a norm, and so between morality and ethics, also leads to the
wholly indefensible claim that the norms of morality are not commands.
Such is the (previously mentioned) thesis which Manfred Moritz tries to
prove in his paper ‘Gebot und Pflicht’ (1941). He calls the norms of
morality ‘moral sentences’ (p. 219) or ‘moral laws’ (pp. 235 ff). He
speaks constantly of ‘moral commands’; but he says ‘The moral
command does not have the properties one thought could be ascribed to
it’ (p. 247), namely that of being a command. It is not a ‘genuine’ but a
‘inauthentic’ command. Moritz essentially bases this distinction between
‘genuine’ and ‘inauthentic’ commands or ‘genuine’ and ‘inauthentic’
imperatives—Moritz uses ‘command’ and ‘imperative’ synonymously
(p. 220)—upon a difference he believes he has discovered in the
observance of genuine and inauthentic commands, and indeed in the
psychological motivation for compliance. Consequently, he draws a
distinction between genuine and inauthentic observance. The norms of
morality, the ‘moral laws’, the so—called moral commands, are not
genuine commands, for their observance is not genuine observance.
What does this distinction consist in?
Genuine observance of a command exists only when it is the imperative [the
command] which brings about the commanded behaviour. The commanded goal
therefore must not have been present in the command-subject [i.e. the addressee of
the command] before the issuing of the command. The commanded behaviour must
be the consequence only of the imperative. (p. 230)
The observance of the moral law, on the other hand, is not genuine
observance of a command, for ‘the commanded behaviour is carried out
because it is “commanded”’.1 The will is already directed to the
1 [Translator’s Note: Moritz’s words quoted this sentence seem to be at odds with the
 Moritz’s Theory 159
commanded behaviour ‘before the imparting of the command’ and hence
the observance of the moral command depends on the fact that this
direction of the will of the addressee of the command is already present
before the imparting of the command (pp. 244 f.). In the case of
observance of a moral law, the commanded behaviour follows because it
is ‘commanded’. In the case of genuine observance, however, the
commanded behaviour is not carried out because it is ‘commanded’. For
in this case the Will’s direction towards the commanded behaviour is not
already ‘present before the imparting of the command’ (as in the case of
inauthentic satisfaction of a command), but is first created in the
addressee by the imparting of the command.
In drawing this distinction, Moritz assumes that the essence of a
genuine command is that it ‘brings about or can bring about certain
effects’, specifically the commanded behaviour (pp. 222, 229). The first
comment to be made about this 1s that from a psychological point of
view—and that IS the point of view of Moritz’3 analysis of a command or
imperative—the motives for the observance of a command can be quite
varied, that a command can bring about behaviour though it need not do
so, and that the behaviour which the command (more correctly, the
representation of the command) brings about in the command-addressee
need in no way be the observance of the command. If the command—
addressee is psychologically opposed to the commander, as for example a
son who hates his father, the fact that the father orders his son to do
something may cause the son to do the opposite of what his father
commanded, just because his father commanded it. Without the
command, he might have done exactly what his father commanded. On
the Other hand, when a son loves his father, the motive for observance of
a command need not be the thought of the command, but could be the
desire not to offend his father by not complying.
Next we must note that the question is not whether the will’s direction
towards the commanded behaviour is present before or after the
‘imparting of the command’, but only whether the impulse to obey the
command appears in the command—addressee before or after the moment
when the addressee comes to know of the command or becomes aware
of it. The will’s direction towards the behaviour prescribed in the
commands of Moses or Jesus or in the moral commands originating in
passage-quOted immediately previously. For in that passage behaviour which is brought about
by the ‘issuing of the command’ constitutes genuine observance, while the present sentence
behaviour which is carried out because it is ‘commanded’ does not. The apparent inconsistency
is due to Kelsen’s failure to indicate that Moritz draws a distinction between two senses of
‘commanded’: ‘morally required’ (‘the moral law commands’) and ‘commanded by someone’
(p. 244). The first passage is about observance of a command issued by someone: observance is
genuine if it is the issuing of the command which brings about the behaviour. In the present
sentence, ‘commanded’ means ‘morally required’ and that is why it appears in quotation marks.
In the rest of this chapter, whenever the word ‘commanded’ appears in quOtation marks it
means ‘morally required’ and not ‘commanded by someone’.]
160 Moritz’s Theory ch. 40
custom need not already be present in the people to whom they are
addressed before the issuing of these commands, i.e. before the moment
when they become valid. In people who were born many centuries after
the issuing of these moral commands, the will’s direction towards the
commanded behaviour can first arise long after the point in time when
these commands were ‘imparted’, i.e. when the acts of which these
commands are the meaning were performed and these commands
became valid. This shows that Moritz’s distinction fails. For it is not
correct that the will’s direction towards the behaviour specified in a
moral norm is always present in the norm—addressee before the moment
when he becomes aware of the moral norm. That may be the case, but
need not be.
Take for instance the prohibition against lying. As a rule, people are
inclined to lie if they believe they can thereby avoid reactions they do not
desire on the part of other people; and this is so even if they are aware of
the moral command ‘You are not to lie.’ Take, for example, a woman
who knows full well that one is nOt to lie because this moral command
was addressed to her when she was a child. Now someone asks her her
age. Her first reaction is to lie, to say that she is younger than she
actually is. It is only after this first impulse that she becomes aware of the
moral command not to lie and of the fact that she will be judged
unfavourably if the lie is discovered. She then decides not to lie. The
will’s direction towards moral behaviour appears in her only after she
has become aware of the moral norm. She complies with the moral norm.
In anOther woman, the moral norm ‘You are not to lie’ may be so deeply
rooted that an impulsion to lie does not arise at all when she is asked her
age. But by answering the question truthfully, she too observes the norm
forbidding lying. But her observance of the moral norm does nOt have
the same character psychologically as in the first case. The difference is
that in the first case the norm-observing subject is aware of the moral
norm she is observing, but not in the second case. In the latter, the
woman’s behaviour is the observance of a command only objectively,
that is, it agrees with the command only objectively. In the former, the
woman’s behaviour is also subjectively the observance of a norm. But in
both cases, it is genuine observance of a command, specifically of a
command of morality, of a moral norm. Psychologically nothing
distinguishes the first case of observance of a moral norm from the case
where observance is what Moritz calls ‘inauthentic’. A schoolteacher
orders a pupil to write an essay at home on a specific topic. Once at
home, the pupil’s first impulse is to go to the playing—field and play
football with his friends. Then he remembers the command to write the
essay, and becomes aware of the quite unpleasant consequences non-
observance of the command would have for him. He then decides to
write the essay rather than play fOOtball. The will’s direction towards the
 Moritz’s Theory 161
commanded behaviour arises in this case, just as in the first, only after
the command becomes conscious and involves, as in the first case, the
suppression of the opposite direction of the will. In both the first and
the third cases, the observance of the command lS brought about by the
command (which 18 a moral command in the first case) or more correctly
by the representation of the command and of the consequences of non—
compliance. In the second and third cases we can say with as much
justification as in the first that the commanded behaviour results because
it is ‘commanded’.
To the extent that the claim that moral laws are not commands rests on
the belief that the observance of moral laws is not ‘genuine’ because it is
not brought about by the moral law, because the moral behaviour comes
about because it is ‘commanded’, the claim is groundless. Moritz admits
that moral laws express a ‘sollen’ (p. 241), that they are ‘norms’ (p. 255),
that moral laws are ‘ought-laws’ and not ‘is—laws’. He says: ‘The
difference between is—laws and ought—laws does not entail that the latter
must be understood as imperatives [i.e. commands]’ (p. 255). But what
are they to be understood as? What we have here, says Moritz, ‘are not
genuine commands, but directions’ (p. 255). But are the moral laws
which ‘direct’ people to behave in a certain way, for instance not to lie,
or to love one’s enemies, anything else but commands not to lie, or to
love one’s enemies? In another passage, Moritz says of ‘inauthentic’
imperatives or commands:
They are like sentences in which an action is expressly or implicitly recommended in
imperative form, on the assumption or presupposition that the subject of the
command has certain concrete goals. The imperative then ‘commands’ the realizing
of certain acts considered to be apprOpriate means for the presupposed goals. These
inauthentic imperatives can always be expanded—without any change in significa—
tion—to take on the form: ‘Do this . . . because (or if) you have such and such a
goal.’ (p. 227)

This 13 clearly not true of moral laws, i. e. moral norms, quite apart from
the fact that moral laws are not advice. But 1t is true of propositions of
ethics which state ‘If you want to behave morally, you must—not you
“ought to”—refrain from lying, you must love your enemies.’ Moritz
himself says that when the content of a command is understood as the
means towards one of the norm--subject’s goals, ‘sollen’ means ‘the same
as “is appropriate” ’ (p. 234). But the fact that a means is ‘appropriate’ for
a certain goal does not mean that 1t ought to be made use of, but rather
that, if one wants to bring about the goal, one must make use of the
means. Thus the propositions of ethics which present the behaviour
commanded by the moral norms as appropriate means to the end of
moral behaviour are not imperatives or commands. And therein lies the
explanation of the paradoxical theory that moral laws are nOt commands:
Moritz does n0t distinguish between the science of ethics, whose
162 Moritz’s Theory ch. 40
propositions are statements about commands and not themselves
commands, and the object of ethics, the norms of morality, which are
commands. He calls ethics a ‘normative science’ (p. 254) and says:
Ethics is Goal-ethics or Value-ethics: it shows what is morally valuable.
But it does nOt command it. To that extent ethics lays down norms, but
they are not formulated imperatively’ (p. 255). Ethics as science certainly
does not formulate norms. It does not prescribe anything; it describes.
But it describes norms, which it does not lay down and (as a science)
cannOt lay down, since it is cognition and not will, and norms are the
meaning of acts of will. If they are not the meaning of acts of will of the
founder of a religion such as Moses, Jesus, or Muhammad, then they
arise by way of custom, that IS, they are the meaning of acts of will of the
people forming the community, acts of will we call the ‘will of the
community’ for short. It is only because Moritz fails to distinguish
morality from ethics, and consequently moral norms from the state—
ments about these norms, that he arrives at the untenable claim that
moral norms are not commands.
 41
Norm and Statement as Different
Significations ofa Sentence
From the logical point of view, .the decisive factor in distinguishing
norms from statements about norms is the difference between a norm,
whatever its linguistic expression may be, e. g. imperative sentence or
sollen—sentence, ——i. e a norm as the signification of a sentence—and a
statement, by which we must understand not a linguistic expression but
its specific signification, a signification also called an assertion or a
judgment. Nevertheless, in common usage, the word ‘statement’ also
refers to the act of stating, the act of making—a—statement, and thus
equally to the act and the meaning of the act (the signification of the
spoken sentence).
We must note that the act of will of which a norm is the meaning must
be distinguished from the act of speaking in which the meaning of the act
of will is expressed. What are spoken are words or a sentence, an
imperative sentence or a sollen—sentence. The norm, which is the
meaning of the act of will, is the signification of the sentence which is the
product of the act of speaking in which the meaning of the act of will is
expressed. Similarly the act of thought of which a statement is the
meaning must be distinguished from the act of speaking in which the
meaning of the act of thought is expressed. What is spoken is a sentence.
The statement which is the meaning of the act of thought is the
signification of the sentence which is the product of the act of speaking
and in which the meaning of the act of thought is expressed.
The difference between a norm and a statement is the difference
between the signification of the sentence in which the meaning of the act
of will is expressed and the signification of the sentence in which the
meaning of the act of thought is expressed. The sentence of which a
statement is the signification describes something. It is true or false, that
is, it agrees or fails to agree with that which it describes. The sentence of
which a norm is the signification prescribes something. It is neither true
nor false (NOTE 100). This can also be expressed by saying: Statements
have an indicative or declarative signification, norms—but only norms
which command something—an imperative signification (NOTE 101).
Only the former are true or false; not the latter.
The function of a statement is to make someone Other than the speaker
know something, to increase his knowledge. The function of a norm is to
164 Norms and Statements ch. 41

make anOther person will something, to determine his will, specifically

to determine it so that his external behaviour caused by his willing agrees
with the norm. A statement is the meaning of an act of thought, a norm is
the meaning of an act of will directed to the behaviour of another.
Thinking, of which a statement is the meaning, and willing, of which a
norm is the meaning, are two distinct mental functions. Thus a norm
cannot be a statement; and a statement, as the meaning of an act of
thought, must be distinguished from the act of thought, and a norm, as
the meaning of an act of will, from the act of will.
A statement states that something is, has been, or will be, that is, it
asserts something as being—in the present, the past, or the future.1 Its
linguistic expression is an is—sentence. The meaning (of an act of will)
which we call a norm is that something is to be. But a statement can
also state that something is to be, if it is a statement about a norm.
This statement can take the form of an is—sentence, but also of a sollen—
sentence. A textbook on Austrian criminal law can contain the sentence:
‘According to Austrian law the norm “A thief 18 to be punished with
imprisonment” is valid.’ That 18 an is—sentence. But the same thought can
also be expressed 1n a sollen——sentence: ‘According to Austrian law, a thief
is to be punished with imprisonment.’ In this sentence, the Ought is the
object of the statement, while the norm is itself the Ought which forms
the object of the statement whose linguistic expression is a sollen—
sentence. Here we see the ambiguity of sollen, mentioned earlier. By the
very nature of things, even a statement about a norm is an is-statement, a
statement about the specific existence (an Is) of a norm (an Ought). But
the ‘Is’ of an Ought, the existence of a norm,2 is something different
from the Is or existence of a fact: it is an ideell and not a ‘real’ Is or
existence (NOTE 102).
While a norm is neither true nor false, the statement about the validity
of a norm is true or false. The statement ‘According to Austrian law a
thief is to be punished with imprisonment’ is true if such a norm is
actually valid. The statement ‘According to Austrian law, a thief is to be
punished with death’ is false if such a norm is not valid. The moral norm
‘One is not to lie’ is neither true nor false; but the value-judgment ‘Lying
is morally bad’ or ‘It is wrong to lie’ is true and the value—judgment
‘Lying is morally good’ or ‘It is right to lie’ false, if the moral norm ‘One
is not to lie’ is valid. ‘Good’ and ‘right’ as well as ‘bad’ and ‘wrong’ are
properties of behaviour: ‘good’ and ‘right’ the properties of behaviour
which agrees with a valid norm, ‘bad’ and ‘wrong’ the properties of
1 Concerning the claim made by some people that statements about the future (i.e.
predictions) are neither true nor false at the time they are made, cf. below, ch. 57. I and Endnote
142.
2 Hermann Cohen speaks of an Is of Ought (1904: 13). The concept of an ‘Is of Ought’ does
n0t contradict the duality of Is and Ought. The Is which is essentially different from Ought is
the real Is of reality; the Is of Ought is the Is of a meaning, it is an ideell and not a real Is.
 Norms and Statements 165

behaviour opposite to that decreed to be obligatory in the norm. They

are not properties which are immediately perceptible by the senses such
as "cold or ‘,smooth’ but they are properties of behaviour which can be
discerned by comparing the behaviour 1n question with that decreed to
be obligatory in a valid norm (NOTE 103).
 42
Thinking and Willing: Their
Inter-relntions/oip
Thinking and willing are indeed two different functions, but they can be
connected. This is possible in different ways. One can make a statement
(in the sense of the expression of the meaning of an act of thought) with
the intention of thereby bringing about a certain behaviour of the person
to whom it is addressed. For example, a mother says to her child: ‘If you
touch the red—hot stove—plate, you will burn yourself and it will be very
painful.’ She makes this statement with the intention of bringing it about
that the child refrains from touching the red—hot stove-plate. Or she says
to the child: ‘If you take this medicine, it will taste good.’ She makes this
statement with the intention of thereby bringing it about that the child
takes the medicine. This intention, this willing, is prior to the thinking
whose meaning is expressed in the statement. The mother wants the child
to refrain from touching the red—hot stove—plate or to take the medicine,
but she does not express her will. She expresses only the meaning of the
am of thought; she makes a statement whose functionis to have the child
know something. The logical function of the statement must be
distinguished from the psychological intention which the speaker
connects with it. When the mother makes the statement in question, she
presupposes that if the child knows that touching the red—hot stove—plate
causes pain or taking the medicine causes pleasure, he will avoid
touching the stove-plate or will take the medicine. But the linking of the
act of thought with the act of will which precedes it does not make the
expression of the meaning of the act of thought (the statement ‘If you . . .
then you will . . .’) a command. The mother refrains from ordering the
child ‘Do not touch the red—hot stove—plate’ or ‘Take the medicine’,
because she knows the child would not obey the command. The sentence
she utters is not a command, for it is true or false; a command is neither
true nor false.
As a rule, a statement is also linked with an intention in such a way
that the speaker desires that the person to whom the statement is
addressed take cognizance of it and consider it to be true. The speaker
can express this intention in a command. A physician can say to a
patient: ‘Believe me, if you persist in eating so much, you will die of fatty
degeneration of the heart. Take nOtice of this.’ Or ‘Take nOtice that you
will die of fatty degeneration of the heart if you persist in eating so
 Thinking and Willing 167

much.’ Here are two different mental acts and two different linguistic
expressions: an act of thought of which a statement (which is true or
false) is the meaning, and an act of will of which a command (which is
neither true nor false) is the meaning.1 This is also true if the command is
a norm; nOt every command is also a binding norm.
Finally, every act of will whose meaning is a command or a norm is
linked to an act of thought in the following way: if one wills something,
especially if one wills that another person is to behave in a certain way, if
the meaning of an act of will is a command or a norm, the individual
positing the command or the norm must represent to himself beforehand
in some way or other the behaviour specified in the command or the
norm. The act of thought precedes the act of will. In this way, every act
of will whose meaning is the command or the norm is linked to an act of
thought (NOTE 104). But the behaviour specified in the command or the
norm is not thought as existing, for if the individual positing the
command or the norm represented to himself the behaviour of the other
person as actually existing (i.e. if he thought that this behaviour already
is, that the other person already behaves in this way) then he would not
need the act of will whose meaning is the command or the norm, he
would not need to will that the other person is to behave in this way.
That the other is to behave in a certain way is the meaning of the act of
will and not of the act of thought linked to the act of will. The behaviour
specified in the command or norm is nOt even thought as obligatory
by the individual positing the norm: it is willed as obligatory. It is
thought as a modally indifferent substrate, and it is only with the act
of will whose meaning is the command or the norm that it receives in the
command or norm the mode of Ought, just as in the statement which is
the meaning of the act of thought it receives the mode of Is. As was
indicated earlier (ch. 16), the modally indifferent substrate is the element
which is common to the statement and the norm.
1 Therefore Russell’s claim (1948: 26 f.) is incorrect: ‘In adult life, all speech, like the calling
of a name, though less obviously, is, in intention, in the imperative mood.’ ‘It follows that
when, in adult life, you use a word, you do so, as a rule, not only because what the word
“denotes” is present to sense or imagination, but because you wish your hearer to do something
about it.’
 43
Neither the Statement nor the
Norm ‘Wnnts’ Anything
It is customary to base the distinction between a statement and a norm
on the difference in intention ascribed to a statement and a norm. People
say: the statement ‘Wants’ to be true, raises the ‘claim to be true’, the
norm (as command) wants to be followed, ‘lays claim’ to obedience.
That is misleading. Willing, intending, and claiming are mental func—
tions. Only human beings can perform these functions. A statement is
true or false; it does not ‘want’ to be true. A norm ought to be observed;
it does not ‘want’ to be observed. Only the person making the statement
or positing the norm ‘wants’ anything, intends anything, claims
anything. The person making the statement can, though need not, want
to make a true statement. But the truth of the statement does not depend
on his will. He can want to make a true statement and the statement can
nevertheless be false. He can want his statement to be considered true by
others; that is indeed the case as a rule, though certainly not necessarily
so. A person can utter a statement in answer to a question with the
intention of merely giving an answer and without wanting it to be the
true answer; but also without wanting to make a false statement or to lie.
A person can make a statement sincerely (i.e. considering it to be true)
without wanting others to think it true, for instance, because he is
indifferent to the matter or because he does not desire the possible effects
that its being taken to be true can have on the person to whom the
statement is addressed. But he can also make a statement and want others
to think it true, knowing that it is false and therefore not wanting it to be
true at all: a person can lie consciously.
Whoever posits a norm or gives a command must want others to
behave as specified by the norm he posits or the command he gives: he
must want the norm or command to be observed. The validity of a
norm is conditional on the act of will of which it is the meaning. But it
is the human being positing the norm or the command who wills; it is
the human being who performs the act whose meaning is the norm or the
command whose will is involved. The norm or command which is the
meaning of this act is not a will, but an Ought. A person who says ‘The
norm “wants” to be observed’ confuses the act of positing the norm with
its meaning, the act of commanding with the command.
It might be objected that the Ought of a command or norm is not
 Statements and Norms do not ‘Want’ 169

necessarily the meaning of a willing, since a person can give an order to

another person without wanting him to obey it; indeed he may want him
nOt to obey it. But this objection is incorrect. For instance, an officer in
wartime receives from a higher echelon the command to have prisoners—
of—war shot, and obeys the command because he wants to avoid the
disadvantageous consequences non-compliance with this order would
have for him, even though he considers the command to be contrary to
international law and disapproves of it. He therefore addresses to a
platoon of soldiers under his command the order to shoot the prisoners—
of—war. But in so doing he wishes his order nOt to be obeyed. The
situation we have here is that the words the officer addresses to the
soldiers have objectively the signification of a command because they
have the linguistic form of an imperative—‘Shoot these prisoners—of—
war’—and so are understood by the soldiers to whom they are addressed
as a command and thus as the meaning of an act of will of the officer
directed to the shooting of the prisoners-of—war; but subjectively, that is,
for the officer who wishes the opposite of what his words signify, it is
not a command at all. The important point is that if a person’s linguistic
utterance can be, and is, interpreted as a command by those to whom it is
addressed, it must be interpreted as the meaning of an act of will on his
part, even if in fact no such act of will exists. What we have here is a conflict
of will within the commander, i.e. two conflicting acts of will. He wants
the Others to behave as specified in the uttered command; if he did n0t,
he would not have uttered the command. But he also wants the others
not to behave in this way, but does not express this will. Just as one can
both love and hate a certain person, so that there exists a conflict of
feelings which psychoanalysis calls ‘ambivalence of feelings’, and just as a
person can contradict himself in his thinking, so he can also be in conflict
with himself in his willing. The possibility of an ambivalence of willing
does not affect the thesis that the Ought of the command is the meaning
of a willing directed to the behaviour of another.
 44
The Truth ofa Statement and the
Validity ofa Norm
I. No Parallel: Validity of a Norm Conditional upon the Act of Will
of which it is the Meaning; Truth of a Statement not Conditional
upon the Act of Thought of which it is the Meaning

The fact that peOple mistakenly ascribe a ‘Willing’ to both statements and
norms—that they assume that both ‘want’ something—is responsible to
a considerable extent for an error with serious consequences: the belief
that there is a parallel between a statement and a norm. Just as the
statement ‘wants’ to be true, so the norm ‘Wants’ to be observed. That
the norm ought to be observed is its validity. That the norm ‘is valid’
means that one ought to behave as the norm prescribes. Thus—so people
assume—there is a parallel between the truth of a statement and the
validity of a norm. For a great part the belief in this parallel between
truth-value and validity underlies the doctrine that logical principles are
applicable to norms just as—or as in some analogous way—they are
applicable to statements.
But this parallel does not obtain. Above all it is contrary to the fact
that the relation between the act by which the norm is posited and the
validity of the norm is essentially different from the relation between the
act by which the statement is made and the truth of the statement.
Admittedly the statement and the norm are both the meaning of an act;
but the truth of a statement is not conditional on the act by which it is
made, while the validity of a norm is conditional on the act by which it is
posited. It must be noted that the act by which the norm is posited, the
act of which the norm is the meaning, is the condition for the validity of
the norm without being identical with its validity (NOTE 105). The act is
an Is, the validity of the norm an Ought. The validity of the norm can be
repealed by derogation; the act by which the norm is posited cannot be
repealed. Furthermore, the act is the condition and not the reason for
validity. The reason for the validity of a norm——i.e. an Ought—cannOt
be an Is but only an Ought—Le. the validity of another norm (cf. below,
ch. 59.1.Bf.).
 § II Truth of Statement and Validity of Norm 171
II. The Validity of a Norm is its Existence; The Truth of a Statement
is a Property of the Statement

In order to be valid, a norm must be posited. If it is not posited, it is not

valid. And it is valid only if it is posited; if it is not valid, then whatever
has been posited is not a norm. For the validity of a norm—as noted
earlier—is its specific existence. Not the existence of a fact, but the
existence of a meaning (or meaning—content), the meaning of a fact (the
factual act of positing). The existence of a meaning is an ‘ideell’, not a
r‘e’,al existence (NOTE 106). That a norm prescribing a certain behaviour
‘is valid’ means that such a norm exists. When a norm ‘begins to be
valid , it begins its specific existence, it comes into force. When a norm
‘ceases to be valid’, it ends its specific existence, it ceases to be in force.1
That a norm prescribing a certain behaviour is not valid means that this
norm does not exist. ‘A valid norm’ is a redundant expression. ‘An
invalid norm’ is a contradiction in terms.
A statement must be made, not in order to be true, but in order that
we be able to judge it true or false. It is true, even if it is not made. That
heat causes a metal to expand is true, even if no one makes this statement.
That murder is to be punished by death is valid only if this norm is
posited by the legislator. A statement is true if what it states exists. Even
a false statement is a statement. If the decision of a judge ‘X is to be
imprisoned’ is not valid for some reason or other, then the decision is
‘void’ (i.e. it is not a norm); this meaning does not exist. The truth of a
statement cannot be repealed by derogation, as can the validity of a
norm. In propositional logic, there is nothing comparable to ‘deroga-
tion’ Truth 13 a property of the statement. Validity 18 not a property of
the norm but its existence, and existence is not a property (NOTE 107).
Nor 18 the validity of a norm a property of the behaviour decreed to be
obligatory in the norm. If a norm prescribes ‘All human beings are to
keep their promises’, and we say ‘The keeping of promises is obligatory’,
then the ‘being——obligatory’ appears in this linguistic expression as a
property of that behaviour which consists in the keeping of promises.
But this is a misleading way of speaking. That certain behaviour ‘is
obligatory’ simply means that one is to behave in this way. That one is to
behave in this way is a norm; and this norm is not a property of the
behaviour. For this behaviour of a given human being is something
factual, an Is; and an Ought cannot be the property of an Is. The
property of this behaviour is that it agrees with a norm, that it is as it
ought to be. This property is an Is; the norm is an Ought. If a norm
1 It is clear from the statement by Mally quoted in Endnote 8—‘We can always replace “A
Ought to be” by “It is valid (it is the case) that A ought to be” ’—that for Mally the validity of a
norm is its ‘being the case’, i.e. its being-present, its characteristic existence as the meaning of
the factual act by which it is posited.
172 Truth of Statement and Validity of Norm ch. 44
prescribes ‘All thieves are to be punished’ and if we say ‘The punishing
of a thief 1s obligatory (and so ‘is——-to--be-punished’ is a property of the
thief), then linguistic usage makes something which is not really a
property of a person appear to be a property of his. The person has the
property of being a thief; his behaviour has the property of being theft;
but he does not have the property ‘is-to-be—punished’. For that thieves
are to be punished and that a specific thief is to be punished are norms,
and a norm cannot be the property of a person or of his behaviour (NOTE
108). The erroneous belief that what we are dealing with is a property of
a person or of his behaviour is reinforced particularly by the linguistic
usage of saying that a person or behaviour is ‘punishable’. Words ending
in ‘—able’ or ‘—ible’, such as ‘imaginable’, ‘visible’, ‘audible’, ‘steerable’, do
in fact express properties, namely, the property of being able to be
imagined or seen or heard or steered. If we understand the expression ‘A
person or his behaviour is “punishable”’ to mean that the-person or his
behaviour is able to be punished, then it does express a property of the
person. But nOt so if we understand the expression to mean that a person
or his behaviour is to be punished. That is a norm, an Ought—as was
mentioned before—and a norm, an Ought, cannot be the property of a
person or of his behaviour, i.e. of an Is. The misleading usage by which
the ‘being—obligatory’ of behaviour is represented as a property of this
behaviour plays a certain part—as we shall see—in the question of the
applicability of logical principles to norms.
The‘existence’ of a norm is, to use Husserl’s terminology, an ideal
objectivity or objectivity of meaning—‘ia'eell’ would be better than
‘ideal’—a mental reality which has its embodiment or foundation (in the
sense of Husserl’s phenomenology, 1973: 364, 368 f..) in the act of will.
The statement about a norm, the sollen—sentence which asserts the
validity or specific existence of a norm, is true if it agrees with this ia'eell
mental reality, just as an is—statement, the sentence which asserts the
existence of a fact, is true if it agrees with natural reality.

III. The Validity of a Norm is Relative to Time; the Truth of a

Statement is not Relative to Time

Since the validity of a norm is its specific existence, and existence occurs
in time, the validity of a norm can be relative to time. Just as a norm
acquires validity, it can also—as indicated previously—lose its validity; it
can begin to be valid at a certain point in time and then cease to be valid
at a certain point in time. The point in time at which a norm begins to be
valid can coincide with that at which it was posited. But if the content of
the norm so prescribes, it can also be a point in time preceding the norm—
positing act (retroactive norms) or following the act of positing. If we
§ IV Truth of Statement and Validity of Norm 173
leave aside the case in which a norm loses its validity because it is
repealed by a derogating norm, the time during which the norm is valid
coincides with the time the norm prescribes (according to its content) for
the behaviour it regulates.
But the truth of a statement is not relative to time. A statement does
n0t begin to be true at some point in time or cease to be true at some
point in time. If it is true, it is always true, has always been true, and will
always be true. That heat causes a metal to expand—if true—is always
true. Should we find some day that heat does not cause a metal to expand
or does n0t cause all metals to expand or does not always cause metals to
expand, then it is simply not true that heat causes metals to expand, and
the sentence ‘Heat causes metals to expand’ has always been false. This is
also true of statements about the existence of individual facts limited in
time. If someone says at midnight ‘It is now broad daylight’, then this
statement is false, and ten hours later, once the sun has risen, it does not
become true but remains false. And if someone says at noon ‘It is now
broad daylight’, then his statement is true and does not become false ten
hours later when the sun has set, but always remains true even ten hours
after it was uttered. It does nOt lose its truth; and if one says of a true
statement that it is ‘Valid’, then it does not lose its validity, while a valid
norm can lose its validity. That Kant was born in 1724 and died in 1804,
and thus lived for eighty years, always remains true, and has always been
true, even before Kant was born and before he died (though a statement
to that effect would have had to be made in the future tense, since it
would have been a prophecy). The fact asserted—i. e. Kant’s life—lasted
for eighty years, but the truth of the statement does not last for eighty
years and 1t is not true only while the asserted fact lasts. The time with
which a statement is concerned according to its content is not the time
during which it is true. The one is independent of the other, while the
time during which a norm is valid is not independent of the time with
which the norm is concerned according to its content.2

IV. The Validity of a Norm and the So-called ‘Validity’ of a

Statement

The difference between the validity of a norm and the truth of a

statement is obscured by the practice of speaking of the ‘Validity’ not
only of norms but also of statements. People say not only that a norm ‘is

2 Bolzano (1972: 194): ‘It cannOt be denied that every given prOposition is either true or false
and never changes, except if we change some part of it, and hence consider no longer the same
but some Other proposition. We do this frequently without being clearly aware of it; this 18 one
of the reasons why it seems as if the same proposition could sometimes be true and sometimes
false, depending on the different times, places or objects to which we relate 1t.’
174 Truth of Statement and Validity of Norm ch. 44
valid’ but also that a statement, an assertion, a judgment ‘is valid’. But the
term ‘Valid’ does not mean the same thing when it is used of statements
and of norms. That a norm is valid means that it exists. That a statement
‘is valid’ means, not that the statement exists, but that it is true. Even a
false statement exists, but it is not ‘valid’ since it is false; it exists but it is
‘invalid’ (NOTE 109). An invalid norm, on the other hand, does not exist.
With reference to a norm, ‘validity’ means existence, the existence of the
norm. With reference to a statement, ‘validity’ means a property, a
property of the statement, its being—true. Thus, the ‘validity’ of a norm
and the ‘truth’ of a statement are not species of a common genus, the
‘validity’ of a sentence (NOTE 110). Between the ‘existence’ of a norm and
the existence of a statement there exists a difference which argues against
a parallel between the validity of a norm and the truth of a statement.
Admittedly, in both cases we are concerned with the existence of a
meaning (or meaning—content), which must be kept distinct from the
existence of the act of will of which the norm is the meaning and the act
of thought of which the statement is the meaning. But the existence of
the norm is its validity, while the existence of the statement is not its
truth. An existing statement can be false; an existing norm cannot be
invalid. For its being invalid means that it does not exist (NOTE 111).
 45
The Being- Trae ofa Statement
and the Being-Good ofBehavioar
I. No Parallel: Theoretical and Practical Value

We might be inclined to think that while there is no parallel or analogy

between the truth of a statement and the validity of a norm, nevertheless
there is between the being—true of a statement and the being—good of
behaviour. ‘True’ and ‘good’ are indeed bOth properties. Behaviour is
‘good’ if it agrees with a norm prescribing this behaviour. ‘Good’ is a
value, a moral or legal value, according to whether it is a moral or a legal
norm which institutes this value. If we also conceive of truth as a ‘value’,
as a logical or theoretical value (as opposed to a moral or legal value
which is a practical value), we might believe that the desired parallel or
analogy between a statement and a norm can be justified by the claim
that both are related in some way to values.
But this is not possible: there is no parallel or analogy between the
being—true of a statement and the being—good of behaviour, between the
judgment that a statement is true and the judgment that behaviour is
morally or legally good. The latter is a genuine value—judgment, but not
the former, for the statement that behaviour is good presupposes the
validity of a norm which prescribes this behaviour as obligatory. It is
only in virtue of a norm that a value in the specific sense of the word, i.e.
an ohjective value, is instituted. The judgment that a statement is true
does not presuppose the validity of a norm prescribing that statements
are to be true. This judgment is possible without any such presupposi—
tion. For a statement is true if it agrees with the ohject of the statement,
and in the typical case (i.e. that of a statement about a fact of reality) if
the statement agrees with the reality it is about, the reality which is the
object of the statement.1

II. Material Truth and Formal-Logical Truth

If we call the truth just mentioned material truth, and if we contrast it

with a formal-logical truth consisting in the agreement of statements
1 Husserl (1970: 195): ‘The experience of the agreement between meaning and what is itself
present, meant, between the actual sense of an assertion and the self-given state of affairs, is
inward evidence: the Idea of this agreement is truth.’
176 Being-True and Being—Good ch. 45
with the principles Of lOgic, then it must be said that this so—called
formal—logical truth presupposes material truth. Logic does not decide
questions Of material truth. The principle Of contradiction does not say
that a statement is true if it does nOt contradict any other statement, but
rather: If one Of two contradictory statements is (materially) true, the
Other must be false. Logic does nOt say that if a statement is obtained by
means Of an inference, then this statement is true, but rather: If the
premisses are (materially) true, then so must be the conclusion.
Kant expresses this in the following way in the Critique of Pure
Reason (B 83—4):
The nominal definition of truth, that it is the agreement of knowledge with its Object,
is assumed as granted . . . If truth consists in the agreement of knowledge with its
Object, that Object must thereby be distinguished from other objects; for knowledge
is false, if it does not agree with the Object to which it is related . . . But, on the other
hand, as regards knowledge in respect Of its mere form (leaving aside all content), it is
evident that logic, in so far as it expounds the universal and necessary rules Of the
understanding, must in these rules furnish criteria Of truth. Whatever contradicts
these rules is false . . . These criteria, however, concern only the form Of truth, that is,
Of thought in general; and in so far they are quite correct, but are not by themselves
sufficient. For although our knowledge may be in complete accordance with logical
demands, that is, may not contradict itself, it is still possible that it may be in
contradiction with its Object. The purely logical criterion Of truth, namely, the
agreement Of knowledge with the general and formal laws Of the understanding and
reason, is a conditio sine qua non, and is therefore the negative condition Of all truth.
But further than this logic cannot go. It has no test for the discovery Of such error as
concerns not the form but the content. (NOTE 112)

III. The Principles of Logic are not Norms: Truth and Truthfulness

There do nOt exist any norms Of logic prescribing that statements are tO
be true, and thus instituting truth as a logical value. Logic is nOt a
‘normative’ science (NOTE 113), either in the sense that it posits norms
prescribing that one is tO think in a certain manner—for as a science (i.e.
as cognition Of the Objects presented tO it) it is nOt competent tO do so—
or in the sense that it describes norms for thinking posited by some
Other authority, as ethics does with the norms of a positive morality. The
relevant authority could only be human reason. That reason—as a faculty
Of cognition—cannot posit norms (which can only be the meaning Of
acts Of will) follows from what was previously said about Kant’s concept
Of practical (i.e. legislating) reason (NOTE 114). The Opposite position
amounts tO an ethicizing Of logic (NOTE 115). It has its origin in the view
that the principles Of logic are concerned with ‘truth’, and truth is
understood as a value. If logical principles institute truth as a value, they
must be norms, since only norms can institute a value. But truth, with
which the principles Of logic are concerned, is nOt a value instituted by a
norm.
§ III Being—True and Being—Good 177
The relevant value here is nOt ‘truth’, but ‘truthfulness’, and this is
instituted as a value not by the norms of logic, but by a norm of
morality. The opposite of the value ‘truthfulness’ is ‘lie’, while that of
truth is error.2 The norm of a moral order forbids lying, i.e. consciously
making a false statement. But no norm forbids erring or making a
mistake. Someone who thinks something false and utters it because he
mistakenly thinks it true does not violate any norm: he does not behave
contrary to any prohibition (which could only be a prohibition of
morality). That is the meaning of the proverb: ‘To err is human.’ There
can be no norm prescribing truth. For a norm can only prescribe
behaviour, only acts or omissions, only specific acts, and behaviour or an
act cannOt be true or false, Just as a fact cannot be true or false. It 1s only
the meaning of an act, specifically of an act of stating (i.e. the statement
about a fact which is the meaning of this act) which can be true or false.
Thus logic is concerned only with the meaning of acts, and not with the
acts themselves, not with the acts of thinking or stating, but with what 18
thought or stated.3 Therefore a norm can be concerned only with the act
of stating, not with what 1s thought or stated. It cannot prescribe that
statements are to be true, but only that acts of stating are to be truthful,
that is, that one is only to make statements one considers true and not
statements one considers false, that—as it is usually put—one is to speak
the truth and refrain from lying. Such a norm can only be a moral norm,
not a norm of logic.
Furthermore, this moral norm is valid only with qualifications. The
act by which a person makes a statement he considers to be true is
certainly not valuable or good under all circumstances ; in certain cases it
is ‘bad’. There are circumstances in which one ought to make a statement
one considers to be false (i.e. lie) rather than make a statement one
considers to be true. If a doctor tells a sick person he considers incurable
that he will shortly suffer a painful death, he violates a norm of
professional ethics even if he thinks his statement is true. A prisoner—of—
war who makes a statement he believes to be true about the position of
his own troops (which is unknown to the enemy) violates his military
duty. These statements of the physician and the prisoner—of—war are
morally bad, even if objectively true. A statement, because it is the
meaning of an act, has neither positive nor negative value: it is indif—
ferent from the point of view of value. Only the act has value, and the
positive value of the act does not necessarily coincide with the truth
of its meaning. The true is not always good and the false not always
bad.
Truth is not a ‘value’ in the specific sense of this word. So—called truth—
2 This was pointed out by Scheler (1899). On p. 135 he says that ‘truth’ is ‘not a moral
phenomenon. But not only is truth not a moral ‘phenomenon’ (i.e. a moral value), it is not a
value at all (i. e. not a value instituted by a norm).
3 Cf. Husserl(1970 284 ff).
178 Being—True and Being—Good ch. 45
value is called a ‘theoretical’ value, as opposed to ‘practical’ (i.e. moral or
legal) value (NoTE 116). A ‘theoretical value’ is one which is instituted by
theory or cognition, a ‘practical value’ is one which is instituted by
willing, by means of the norms which are its meanings. But the meaning
of cognition is not a norm instituting a value. Only willing can institute
values by means of the norm which is its meaning. A ‘theoretical’ value is
a self—contradiction. This contradiction is the result of the self-
contradictory concept of practical reason, which is cognition and willing
at the same time. If the principles of logic were norms, they would have
to concern acts of thought, and this is not the case (as was said above).
Acts of thought as such are n0t subject to any norms at all. Someone who
thinks (i.e. imagines without willing) that he is killing his rival does nOt
violate any norm of morality or law. It is in this sense that the principle
‘Thoughts are free’ is valid. The norms of morality and law are directed
to human willing and behaving.
That the principles of logic are nOt norms directed towards thinking,
norms which command or forbid acts of thought (and so can be observed
or violated), can be clearly seen in the principle of contradiction. Were
this principle a norm addressed to the individual, as is the moral or legal
norm forbidding murder, it would have to be formulated ‘Refrain from
thinking at the same time that something exists and that it does not exist’,
for instance, that God both exists and does not exist, or that an object is
both white and not white. But there would be no point to such a norm,
since it is simply n0t possible to think that God exists and at the same
time that he does not exist, or that an object is white and at the same time
that it is not white. A person can only think one of these and then the
other. There must be two acts of thought. There is no norm forbidding
these two acts of thought. A person does not violate a norm of logic by
performing these acts of thought. A person can change his mind, and
think something at one moment and the opposite at the next, and in both
cases consider what he thinks to be true. The principle of contradiction
clearly does not concern these acts of thought: it forbids neither the one
nor the other, nor indeed both. It simply states that if the meaning of one
is true, then the meaning of the other cannot be true and must be false,
irrespective of whether it is actually thought, or by whom, or when. This
‘must’ is a logical necessity, not a normative Ought, not a command or
prohibition. Logic can forbid neither one act of thought, nor the other,
nor both, if only because it cannot decide whether the meaning of one or
the other is true or false.
There is no norm of logic which forbids thinking what is false, and no
norm of morality either. When for centuries men thought that the sun
revolved around the earth, their thinking behaviour was in no way
forbidden or in violation of any norm of logic or morality, even though
the meaning of their acts of thought was false. What is forbidden by
§ III Being—True and Being—Good 179
morality (and not by logic) is not thinking what is false or making
statements which are objectively false, but making statements which the
speaker considers false or statements which he must, for specific reasons
known to him, consider false.
 46
The Verifiahility of the Truth ofa
Statement— The Non—verifiahility
ofthe Validity ofa Norm
An important difference between the truth of a statement and the
validity of a norm is that the truth of a statement is verifiable—i.e. it
must be possible to prove it to be true or false—while the validity of a
norm is nOt. The validity of a norm is not verifiable because it is its
specific existence and can no more be true or false than the existence of a
fact. Only the truth of a statement about the existence of a fact is
verifiable, since verifying means ascertaining the truth. The only thing
which remains open to question is whether the statement about the
validity of a norm is verifiable. And this question must be answered in
the affirmative, since this statement, like any other statement, can be true
or false, and so must be verifiable. The statement about the validity of a
norm, the sentence which states that a norm exists or ‘is valid’ is true if
this norm does exist or is valid. It is false if this norm does not exist, is
not ‘valid’. A norm exists or ‘is valid’ if it was ‘posited’, i.e. if it is the
meaning of an act of will. The following examples illustrate the truth and
falsity of a statement about the validity of a norm.
If a textbook presenting the criminal law of State X contains the
sentence ‘If a man promises to marry a woman and does not keep his
promise and does not compensate the woman for the harm caused by his
breach of promise, then according to the law of State X, in an action
brought by the woman, execution is to be carried out upon his property
and the damage compensated from the proceeds of the seized assets’,
then this sentence is true if a norm with this content is valid, and it is
valid if it has been posited by way of legislation or custom. The sentence
is false if no such norm is valid, and it is not valid if it was not posited by
way of legislation or by custom, or if it was posited and was valid for a
time but its validity was repealed by a derogating norm or ceased because
it ceased to be effective. If an ethic presenting Christian morality
contains the sentence ‘One is to (or one may) hate one’s enemies’, this
sentence is false since within Christian morality it is the general norm
‘Love your enemies’ which is valid, and it is valid because it was posited
by Jesus in the Sermon on the Mount and has nOt lost its validity by
derogation or loss of effectiveness.
 Verifiability of Truth and Validity 181
The statement about a norm, that is, the statement that a norm is valid,
can be verified by ascertaining that the norm was posited and that it has
not lost its validity by the positing of a derogating norm or through loss
of effectiveness. To this we may expect the following objection: If the
truth of the statement about the validity of a norm can be ascertained and
thus verified by ascertaining the existence of certain facts (i.e. the act of
positing of which the norm is the meaning, the fact that no derogating
norm has been posited, and the fact that the norm has nOt lost its
effectiveness), then the statement about the validity of a norm is a
statement about facts. But this objection is wrong. For it equates the
validity of a norm with its positing and its effectiveness. But as was
emphasized before, the positing of a norm and its effectiveness are
conditions for validity, but are not validity itself. The act of positing and
the effectiveness are an Is, validity is an Ought. The statement that a
norm was posited and is effective and the statement that a norm is valid
are two different statements. But the second statement is true only if the
first is true. We can prove the truth of the second statement—i.e. verify
it—by proving the truth of the first statement—i.e. verifying it. That
means: We can verify the statement about a norm—the statement that a
norm is valid—not directly but indirectly.
As was emphasized earlier, the statement about a norm, that is, the
statement that a certain norm prescribing a certain behaviour is valid, has
a descriptive and nOt a prescriptive signification (unlike a norm), even if
the statement is formulated in a sollen—sentencei If in an ethic presenting
Christian morality, a sentence states ‘According to Christian morality,
one is to love one’s enemies’ or ‘A Christian is to love his enemies’, then
this sentence is not a norm but a statement about a norm, a description
and not a prescription. That is why such a sentence can be true or false.
The same applies to value—judgments, that is, to sentences which state
that some behaviour is morally or legally ‘good’ or ‘bad’, and in this way
express that this behaviour agrees with, or—as people are used to
saying—contradicts, a norm presupposed to be valid. They too have a
descriptive signification, and can be true or false. And so they too can be
verified—indirectly—by verifying the statement about the presupposed
validity of the norm (NOTE 117).
The fact that the statement about a norm (i.e. the statement that a
norm ‘is valid’) can be true or false and so can be verified rests on the fact
that the validity of a norm—as was also explained earlier—is its specific
existence, an existence different from that of a fact of natural, sensibly
perceptible, reality. This existence can no more be verified than that of a
natural fact, which is neither true nor false. But the statement about the
validity of a norm can be verified just as can that about the existence of a
fact, since both statements can be true or false (NOTE 118).
 47
The Question ‘W/mt Ought I to
Do .3’
The difference between a norm and a statement about a norm (NOTE 119)
becomes clear if we ascertain the meaning of the queStion ‘What ought I
to do?’ It is the question‘ethics is supposed to answer.
A person who asks a question demands information. Someone who
asks a question of another wishes to know something he does not yet
know but which he supposes the other person knows. The answer to the
question must therefore have the character of information which will
increase the knowledge of the questioner. The questioner expects the
answer to be a statement which is true. In his analysis of interrogative
sentences (1972: 192), Bernard Bolzano says: ‘[I understand by a
question] any assertion of a desire that a certain truth, some of whose
attributes are identified, should be produced.’ He includes questions
among ‘problems’, and comments: ‘They differ from Other problems in
that they demand that a pr0position, indeed a true pr0position, .
should be produced.’ If the sentence ‘What ought I to do?’ is a question,
then it expects as an answer a sentence which is true. Thus the answer
corresponding to this question cannOt be a norm. For a norm is neither
true nor false. Its purpose is nOt to have the person to whom it is
addressed know something—to increase his knowledge—but to deter—
mine his will. But since the answer must have something to do with a
norm prescribing what one is to do, it can only be a statement about a
norm, which can be true or false (since it is a statement). Thus we can
find the answer to the question ‘What ought I to do?’ in an ethic, whose
sentences cannOt be norms (since they are sentences of a science) but
must be Statements about norms. The quesrion ‘What ought I to do?’ can
be addressed—and in fact usually is addressed—to a person who is not
competent at all to posit norms, to prescribe something to the
questioner. It has the meaning: Tell me if there is a norm (i.e. if a norm is
valid) which prescribes what I am to do, and tell me what its content is.
And the person to whom the question is addressed can give the answer
expected of him only if he knows that there is a norm prescribing what
the questioner is to do, and since he is not himself a norm—positing
authority, he can only describe this norm, i.e. state that it is valid. Since
he is asked what one ought to do, his answer must be a sollen—sentence.
But since he is not competent to prescribe what the questioner is to do
 ‘What Ought I to Do?’ 183
and since a prescription is not what is being asked for, the 5011671 in the
sentence which constitutes his answer can only have a descriptive and
not a prescriptive signification (NOTE 120).
Since the question ‘What ought I to do?’, like any other question, can
be rationally addressed only to a person who the questioner assumes
knows what the questioner does not know, it appears as if this question,
like any other question, cannOt strictly speaking be addressed to oneself.
But it is quite common to say ‘I ask(ed) myself whether . . .’. This means:
‘I wish, without asking any one else and by my own reflection, to
acquire some knowledge I do not yet have but which I hope to acquire
later, so that I may be able, after I have thought about it, to answer the
question I am presently unable to answer. ’If we assume that morality 1s
autonomous in the sense that the norms of morality must be posited by
the person whose behaviour they regulate, then 1t would only be possible
to address the question ‘What ought I to do?’ to ourselves. And then we
would be able to answer it only once we had posited the norm relevant to
the given situation, i.e. once we had made the moral decision. Then we
would know, and would be able to say, what we are to do. But we would
be able to answer this question only if we had answered the preliminary
question ‘Which norm ought I to posit?’
The principle of the autonomy of morality—understood in this way—
presupposes that we can find the answer to this question by reflection,
i.e. by personal thought, in our reason, in practical reason. If this were
true, then the distinction between a norm and a statement about a norm,
between the act of will whose meaning is the norm and the act of thought
whose meaning is the statement about the norm, would be quite
superfluous. For norm—positing practical reason and norm—knowing
theoretical reason would be one and the same; or, as in the Kantian ethic
of autonomous morality, practical reason would be at once cognition
and norm—positing will. But that is impossible. By personal reflection,
i.e. by our reason, we cannot find the norms prescribing what we are to
do (cf. above, ch. 19).
 48
Statements ahout the Validity ofa
Norm and Statements ahout
Factual Behaviour which Agrees
with or Contradicts the Norm
We must not confuse a statement about the validity of a norm
prescribing a certain behaviour and a statement about the relation of
some specific factual behaviour to this norm, that is, the statement which
asserts that the behaviour agrees or fails to agreewith the norm and is in
this sense ‘good’ or ‘bad’. This statement is a value-judgment, while the
statement about the validity of a norm is nOt. A value-judgment
presupposes the validity of a norm; it describes the relation of some
object, in particular a certain behaviour, to this norm, and thus
characterizes the behaviour as ‘good’ or ‘bad’. Such a value—judgment
asserts that the modally indifferent substrate of some existing behaviour
(or behaviour thought to be existing) does or does not match the modally
indifferent substrate of the behaviour decreed to be obligatory in a norm.
In the value-judgment ‘The behaviour of person A, who lies, is bad’, I
assert that the modally indifferent substrate ‘Lying by human being A’
does not match ‘Not lying by human beings’, the modally indifferent
substrate of the norm ‘Human beings are not to lie.’ In the value-
judgment ‘The punishing of thief A is legal’, I assert that the modally
indifferent substrate ‘Thief-A—being—punished’ matches the modally
indifferent substrate of the norm ‘All thieves are to be punished.’ Such a
judgment is of the same type as any Other judgment asserting that one
object is like another.
The statement about a norm, that is, the statement that a norm ‘is
valid’ or exists, does not describe the relation of the norm to another
norm whose validity is presupposed; it does not characterize as ‘good’ or
‘bad’ the norm whos‘e validity it asserts; it asserts the specific
existence of its object—without characterizing it. Inasmuch as a norm
institutes a value, the statement about a norm implies the statement
about the value the norm institutes; it asserts the existence of the value,
but nOt the being—valuable or being-contrary—to—a—value of an object, not
the being-good or being—bad of behaviour which agrees or fails to agree
with the norm.
 Statements about Validity and Behaviour 185
The value—judgment asserting the agreement or disagreement of actual
behaviour with a presupposed norm can be true or false just as can the
statement about the validity of a norm. The value—judgment ‘Bigamy is
illegal, i.e. legally bad’ is false if there is no valid norm prohibiting
bigamy. The value—judgment ‘It is morally good to love one’s enemies’ is
true if there is a valid norm commanding people to love their enemies. If
such a norm is not valid within a given moral order, the value—judgment
is false (relative to the moral order in question). This makes clear the
difference between a norm, which is neither true nor false, and a value—
judgment, which is true or false (since it is a judgment).
But all this is true only of a genuine value—judgment, which is the
meaning of an act of thought or cognition, and not of a valuation, which
is the meaning of an emotional act, that is, an act of approval or
disapproval. If I say ‘Stealing is bad’ or ‘You behaved badly in stealing
this money’, and all I give immediate expression to is my disapproval of
stealing in general or of a concrete act of theft, then the sentence I utter is
neither true nor false, for it is not the meaning of an act of thought, it is
not a judgment, and so it is not a value-judgment (NOTE 121). That I
approve or disapprove of behaviour means that I desire or do not desire
the behaviour, i.e. that I will that people are to behave or are not to
behave in this way, that I posit a command (a norm) by approving or
disapproving.
I can give immediate expression to this emotional reaction in these
sentences. They then have the same character as the exclamation ‘Ah!’ or
‘Shame!’ They are not judgments. But these sentences can also be
statements about the existence of an emotional reaction within me. Then
the two sentences represent statements (judgments); but even then they
are not value—judgments, since by a value—judgment we understand a
statement about the relation to a norm presupposed to be valid. If we use
the term ‘value-judgment’ also for the statement about the relation of an
object to an internal process of desiring or its opposite, then we must
distinguish between objective and subjective value—judgments: in the
former case there exists a relation to an objectively valid norm (i.e. a
norm valid independently of the desires and will of the person who is
judging) and in the latter case the relation 18 to the desires and will of the
person judging (NOTE 122) In so far as judgments about the relation of
an object to mental processes can be called psychological judgments,
subjective value—judgments are psychological judgments, unlike object—
ive value-judgments, which assert the relation of an object, specifically
human behaviour, to a norm presupposed to be valid, i.e. which
characterize it as agreeing or not with a norm.
It could be objected that even the value—judgments here called
‘objective’ are in the last analysis subjective, since the norm presupposed
in the value-judgment is the meaning of an act of will. The answer to that
186 Statements about Validity and Behaviour ch. 48
is that this act of will is not that of the person making the value—
judgment, and—most importantly—that the value—judgment does not
assert a relation to this act of will (to its real existence) but to the norm,
to the ideell existence of the norm which is the meaning of this act. The
objective value—judgment can, but need nOt, be linked to an emotional
act of. valuation of approval or disapproval. I can state that a certain
behaviour agrees or not with a valid norm Without internally (i. e.
emotionally) taking a stance about 1t by approving or disapproving. But I
can also link my objective value—judgment to such an emOtional approval
or disapproval. And it need not be the case that the objective value—
judgment ‘good’ is linked with an emOtional approval. I can ascertain
that a certain behaviour agrees with a valid moral or legal norm (i.e. a
norm posited by some authority and effective by and large) and
nevertheless wish that it not occur, or that it had not occurred, and so
internally disapprove of it (NOTE 123).
 49
Statements about a Norm and
Quoting a Norm
There is a possible objection to the claim that a norm has a prescriptive
signification while a statement about a norm formulated in a sollen—
sentence has a descriptive signification, and consequently that ‘sollen’ is
ambiguous: it is that the sentence which is a statement about a norm is a
sentence which quotes the norm, and so this sentence must have a
prescriptive signification since the quoted norm itself has a prescriptive
signification. But that is incorrect. The sentence which serves to make a
statement about a norm can, but need not, quote the norm. The quoflted
norm does have a prescriptive signification, but the sentence in which it is
quoted has a descriptive signification.
We must distinguish between two cases where a norm is quoted. For
example:
1. God commanded on Mount Sinai: ‘You are not to kill.’
2. The command ‘You are not to kill’ is valid for all human beings
(and not merely for the Jews, to whom it was addressed).
BOth sentences are statements, have a descriptive signification, and claim
to be true. This is easy to see in sentence 1, since it is a statement about
the norm-positing act which—according to the statement—actually
occurred. It claims that it is true that God posited the norm on Mount
Sinai. This 1s not altered by the fact that in the sentence the meaning of
the asserted act (i. e. the norm) 1s placed between quotation marks, i. e. is
quoted. True, this quoted norm has a prescriptive signification; but
sentence 1 does not take on this signification. When the norm is placed
within quOtation marks (i.e. is quoted), its prescriptive signification is, so
to speak, put in brackets, and excluded as the signification of the
statement—sentence in which it occurs. If for instance a historian of
religion utters sentence 1, he distances himself from the quoted norm by
the use of the quotation marks. He does not assert that this norm is valid;
he merely asserts that an act occurred whose subjective meaning is ‘You
are not to kill.’ The question whether this subjective meaning is also the
objective meaning of the act (i.e. a valid norm) remains open.
Sentence 2 is a statement not about a norm—positing act, but about a
quoted norm, i.e. about its validity. As a statement, sentence 2 claims
that it is true that the norm ‘You are not to kill’ is valid for all humans,
188 Statements and Quotations ch. 49
that is, that all human beings are not to kill. The sollen in the quoted
norm has a prescriptive signification. But sentence 2 itself, as a statement,
has a descriptive signification. The fact that the norm, i. e. the soilen—
sentence, is set within quotation marks (i.e. is quoted) keeps the
prescriptive signification of the quoted norm away from the sentence
which quotes it. Sentence 2 is equivalent to a sollen—sentence which is a
statement about the norm in question and in which the norm itself is not
quoted: for example, the sentence ‘No human beings are to kill’ intended
as a statement about a norm. In an ethic presenting Judaeo—Christian
morality, one can use this sentence to describe the norm posited by God
on Mount Sinai, and thus assert its validity. As was indicated earlier, the
sollen in this statement—sentence has a descriptive and not a prescriptive
signification. Consequently, the statement about a norm has a descript-
ive and not a prescriptive signification, whether or nm the norm is
quoted in it.
AnOther point. If a general norm does not take the form of a sollen—
sentence, but rather the linguistic form of an imperative or a statement,
the statement about this norm formulated in a solien—sentence is
linguistically totally different from the wording of the norm. If Jesus
commanded in the Sermon on the Mount ‘Love your enemies’, an ethic
presenting Christian morality can describe this norm only in the
statement ‘All human beings are to love their enemies’, or to be more.
exact, ‘If a human being has an enemy, he is to love him.’ The legal norm
forbidding murder may be formulated in two is—statements in a criminal
code: ‘Murder is the intentional causing of the death of another. Murder
is punished by putting the murderer to death.’ The statement about the
norm formulated in these two is—sentences reads thus in a textbook on
criminal law: ‘If a person by his behaviour intentionally causes the death
of another, punishment by death is to be inflicted on him.’ That is the
proposition of law describing the legal norm. This formulation of the
proposition of law—which differs from that of the legal norm—is of
the greatest theoretical significance—as was indicated earlier——since it is
only in this formulation as a hypothetical judgment that the principle of
imputation fundamental to the normative sciences is expressed (cf.
above, ch. 7).
 50
The Problem of the Applicability
of L0gicczl Principles to Narms
The following inquiry concerns thequestion whether certain principles
of so-called bivalent (true—false) logic, specifically the principle of
contradiction and the rules of inference, are applicable to norms of
morality and law. That they are applicable to norms of positive law has
been almost universally assumed in traditional legal theory (NOTE 124).
The question is not whether these principles are in fact applied to
norms—and to legal norms in particular—or whether their application is
desirable or not from the point of view of legal politics (NOTE 125).
(These questions have been the object .of much debate in legal literature,
on the assumption—considered to be obvious—that the principles are
applicable.) Nor is the question whether the general norms of a positive
moral or legal order can be derived from some higher, more general
principles (NOTE 126).
As far as the relation of a general norm to its application to a concrete
case is concerned, my problem is not the fact that more than one general
norm can serve as the starting-point for a decision in a concrete case, that
different general norms can be applied to a concrete case, or that a single
general norm can be interpreted in different ways when it is to be applied
to a concrete case with the result that a logical inference can yield
different decisions in the same case (a situation which fundamentally
casts doubt on the value of the conclusion) (NOTE 127). Nor are we
concerned with the fact that the meaning of a general legal norm in a
statute can change in the course of time and consequently that the
judicial decision cannot be inferred from the original meaning of the
general legal norm (NOTE 128). For the question is whether the judicial
decision can be logically deduced from the new meaning of the general
norm, the meaning accepted by the judge in his interpretation of the
norm. Nor are we concerned with the widespread view that when the
law does not contain a general norm concerning the concrete case, then
valid law cannot be applied by the judge: the law—as it is commonly
said—contains a ",gap the judge must create new law and his decision
therefore cannot be inferred from a valid general norm (NOTE 129)
Nor are we concerned with the claim which 1s sometimes made that
the application of logical principles——inference, in particular—to legal
norms is impossible because the general norms are formulated in
190 Logical Principles and Norms ch. 50
sentences that admit of more than one interpretation (NOTE 130). It is
undeniable that unambiguous legal norms are possible. The fact that
general legal norms always allow the law—applying organ a certain
discretion is likewise irrelevant. For if the validity of the individual norm
can be logically deduced at all from the validity of the general norm to be
applied, then it can be deduced even if the organ competent to posit the
individual norm has a certain amount of discretion. If the validity of the
individual norm ‘Schulze the thief is to be punished with imprisonment’
follows logically from the validity of the general norm ‘All thieves are to
be punished with imprisonment’, then so do the individual norms
‘Schulze the thief is to be punished with one year’s imprisonment’ and
‘Schulze the thief is to be punished with two, or three, or 71 years’
imprisonment.’ The fact that the determination of the duration of the
punishment falls within the judge’s discretion does not mean that the
validity of the individual norm cannot follow logically from that of
the general norm, as long as the individual norm prescribes that Schulze
is to be imprisoned. In particular, we are not concerned with judicial
discretion which gives the judge the choice between arriving at his
decision by way of a 10gical inference or by some other means (NOTE
131).
My problem is not the possibility or impossibility of predicting
judicial decisions; nor is it the psychological question as to how judges
actually arrive at a decision. Nor is it the question whether logical
principles are applicable to legal science, a question all too often confused
with that about their applicability to legal norms. As was emphasized
before, a norm is the meaning of an act of will and, when it has the
character of a command and is expressed linguistically in an imperative
(NOTE 132), of an act of will about the behaviour of other people. Norms
which have the character of commands are prescriptions. But the
sentences of legal science are not norms; like any Other science (i.e. as
cognition), legal science is nOt competent to posit norms binding on the
norm—addressee. Like those of any other science, the sentences of legal
science are statements or descriptions, and as such are the meaning of
acts of thought (NOTE 133). They are statements about norms; as
statements, they must be distinguished from the norms which are their
object. For statements, as the meaning of acts of thought, are true or
false, while norms, which are the meaning of acts of will, are first and
foremost prescriptions and are neither true nor false, but rather valid or
invalid (NOTE 134). The applicability of logical principles to legal science
is not in question, since the principles of logic are applicable to any
science. Nor is the problem—for the time being at least—whether
principles other than those of traditional logic are applicable to the
norms of morality or law. We are not concerned with so-called Logistic
(mathematical logic), which is certainly of great value in mathematics,
 Logical Principles and Norms 191
but of no consequence for other sciences, and especially for morality and
law as systems of norms (NOTE 135).
The problem which forms the object of the following inquiry is the
applicability of the two logical principles mentioned above to the norms
of morality and law. It is the question (1) whether a conflict between two
norms of morality or law, one of which decrees a particular behaviour to
be obligatory and the other decrees the omission of this behaviour to be
obligatory, constitutes a logical contradiction which can be resolved by
applying the logical principle concerning contradiction; and (2) whether,
if a general moral or legal norm is presupposed to be valid by the norm—'
applying subject as he interprets it, and the abstractly specified state of
affairs is found to obtain concretely, the moral approval or disapproval
or the judicial decision follows as the conclusion of a logical thought-
process. These problems have been the object of much discussion
recently, and arise from the previously mentioned fact that norms are
neither true nor false, while the principles of traditional logic, according
to the usual view, are applicable only to sentences which are true or false.
Thus Christoph Sigwart says that logic is a ‘technical science of
thought’ (1895: i. 1), a discipline
which shall teach us . . . to conduct Thought in such a manner that the judgments
may be true—that is, necessary and certain—that is, accompanied by a consciousness
of their necessity, and therefore universally valid. Reference to this aim distinguishes
the logical from the psychological treatment of Thought . . . The logical treatment . . .
presupposes the desire to think the truth . . . Starting with this aim before it, and
investigating the conditions of its attainment, Logic proposes, on the one hand, to set
forth those Criteria of true Thought which are due to the demand for necessity and
universal validity; on the other hand, to direct us how to conduct the mental
operations in such a way that the end may be attained. (pp. 9—10) (NOTE 136)
John Stuart Mill says: ‘Logic, then, is the science of the operations of the
understanding which are subservient to the estimation of evidence: bOth
the process itself of advancing from known truth to unknown, and all
other intellectual operations in so far as auxiliary to this’ (1898: 6). Jean
Piaget says: ‘There is one point upon which all logicians agree whatever
their school: logical analysis is concerned with statements capable of
being true or false; in Other words, the object of logic relates to truth and
falsity’ (1949: 3). And Karl Popper says: ‘The most important function
of pure deductive logic is that of an organon of criticism . . . The concept
of truth is indispensable for the critical theory being developed here.
What we criticize is the claim to truth. As critics of a theory, what we
seek to show is naturally that its claim to truth is wrong, that it is false’
(1962:243)}
1 Popper presupposes that the principles of logic relate to statements which are true or false:
‘One of the most important results of modern logic is the strikingly successful rehabilitation of
this concept of absolute truth’ (1962: 244).
192 Logical Principles and Norms ch. 50
Rudolf Carnap is particularly clear on this topic:
The function of logical analysis is to analyze all knowledge, all assertions of science
and of everyday life in order to make clear the sense of each such assertion and the
connections between them. One of the principal tasks of the logical analysis of a
given proposition is to find out the method of verification for that prOposition. The
question is: What reason can there be to assert this proposition; or: How can we
become certain as to its truth or falsehood? (1935: 9)
It therefore follows that logical analysis can be concerned only with
statements which are true or false, and verifiable, and not with norms,
which are neither true nor false.
In the work just cited, Carnap speaks of ‘moral norms’ in connection
with ethics as ‘philosophy of moral values or moral norms’: ‘The
purpose of this philosophical, or normative, ethics is to state norms for
human action or judgments about moral values’ (1935: 23). But in his
opinion, value—judgments are norms: ‘But actually a value statement is
nothing else than a command in a misleading grammatical form . . . it is
neither true nor false. It does not assert anything, and can neither be
proved nor disproved’ (p. 24). Speaking of the value—judgment ‘Killing is
evil’—which he considers to be a misleading formulation of the
imperative ‘Do not kill’—he says that ‘this statement is not verifiable and
has no theoretical sense, and the same thing is true of all other avlue
statements’ (pp. 24 f. ), i. e. of all norms. Carnap thus leaves no room for
doubt that, in his opinion, norms (imperatives) are not statements, that
they are neither true nor false, that they are not verifiable. According to
his view, ‘normative ethics’ belongs to metaphysics. And he claims that
metaphysical sentences are meaningless. ‘Thus they [i. e. the meta—
physicians] are compelled to cut all connection between their proposi—
tions and experience, and precisely by this procedure they deprive them
of any sense’ (pp. 17 f.) (NOTE 137).
If this is correct, then with respect to the applicability of the two
aforementioned logical principles to norms as objects of moral and legal
science, there appears to exist between these sciences and their object the
same relation as obtains between natural science and its object, natural
reality: the two logical principles are applicable to the science (i. e. the
cognition) but nOt to its object. Just as there are no logical contradictions
in natural reality, and just as the existence of one fact of reality does not
follow logically from the existence of anOther, so there are no logical
contradictions between norms, and the validity of one norm does not
follow logically from the validity of another.
But the parallel between the relation of natural science to its object on
the one hand and the relation of moral and legal science to their object on
the other is not tOtal. For the objects of moral and legal science are
norms; and in so far as norms are expressed linguistically in sentences,
these sentences can contain relations—such as that between condition
 Logical Principles and Norms 193
and consequence—and concepts—bOth general and individual con-
cepts—as well as relations between the concepts contained in the norms.
Inasmuch as these relations, as objects of logic, are logical relations,
logic—or rather, principles of logic other than the two aforemen-
tioned—is applicable to norms of law and morality, that is, to the object
of moral and legal science. We shall have to return to this problem later
(ch. 60).
 51
fhrgenserz’s Theory of the
‘Indicative Factor’ Immarzerzt in
an Imperative
The Danish philosopher Jorgen Jorgensen very articulately set out the
problem we are concerned with (1937). He only discusses the question of
the applicability of the rule of inference to imperatives (and therefore
also to norms). He characterizes the logical process of inference ‘as a
process of thought which, starting with one or more judgments, ends in
another judgment whose truth is seen to be involved in that of the
former’ (p. 288). He then states that imperative sentences
can neither be true nor false in any sense in which these words are used in logic . . .
Therefore they are . . . incapable of being conclusions in logical inferences. Indeed,
they are even incapable too of being premisses in such inferences, because also the
premisses must be capable of being either true or false in order to function as
premisses. (p. 289)

Finally he says: ‘Imperative sentences . . . are unable to function as part

of any logical argument at all.’
On the other hand, Jorgensen feels compelled to admit that ‘it seems . . .
evident that inferences can be formulated in which the one premiss at
least and the conclusion are imperative sentences. For instance: Keep
your promises—This is a promise of yours—Therefore: Keep this
promise’ (p. 290). He finds this a ‘puzzle’, and he tries to solve it in the
following way:
This puzzle may be dealt with by analyzing the imperative sentences into two
factors: an imperative and an indicative factor, the first being merely an expression of
the speaker’s state of mind (his willing, wishing, commanding, etc.) and therefore of
no logical consequence, whereas the last may be formulated in an indicative sentence
describing the contents of the imperative sentences and therefore being capable of
having a meaning and of being governed by the ordinary rules of logic (p. 296). Any
imperative sentence may therefore be considered as containing two factors which I
may call the imperative factor and the indicative factor, the first indicating that
something is commanded or wished and the latter describing what it is that is
commanded or wished. (p. 291)
The first criticism that can be made of this is that when Jorgensen
characterizes the ‘imperative factor’ as ‘indicating that something is
commanded or wished’, he describes it as if it were an indicative factor.
 ]orgensen’s Theory 195
In his characterization, the so—called ‘imperative factor’ is the state—
ment—note the use of the word ‘indicating’—that something is
commanded or wished, i.e. a statement about an act of commanding. But
the imperative factor cannot be anything other than the imperative
mood—i.e. the mood/mode of Ought—in which the ‘keeping of
promises’ appears (to use Jorgensen’s example).
The content of an imperative (i.e. of the meaning of an act of
commanding) is that which is commanded. Jorgensen says: ‘It is nOt
possible to issue a command without commanding something to be
done.’ That which is commanded or prescribed in a command or norm is
a modally indifferent substrate which appears in a norm in the mode of
Ought—i.e. the imperative mood—and not the indicative mood—i.e. as
a statement which can be true or false. ‘Is’ and ‘Ought’ are two
fundamentally different modes. That which is and that which ought to
be——the content of the Is and of the Ought—is a modally indifferent
substrate. In the sentence ‘A pays his gambling debts’, the modally
indifferent snhstmte ‘paying gambling debts’ assumes the mode of Is; in
the sentence ‘A is to pay his gambling debts’, it assumes the mode of
Ought. The norm which prescribes a certain behaviour, the norm which
decrees this behaviour to be obligatory, confers the mode of Ought on
the behaviour which outside of the norm represents a modally
indifferent substrate. Since ‘Is’ and ‘Ought’ are two fundamentally
different modes, it is not possible that that which is simultaneously
ought to be, and that which ought to be simultaneously is. If something
is as it ought to be, this means that the content of an Is is the same as the
content of an Ought: the modally indifferent substrate is the same in
both cases. What we have are two similar modally indifferent substrates.
It is nOt the existing behaviour, but the obligatory behaviour which
appears in a behaviour—prescribing norm. The behaviour decreed to be
obligatory in the norm and the behaviour existing in reality which agrees
with the norm are two different things with respect to their modes.
But Jorgensen erroneously believes that the content of the imper-
ative—that which is commanded, that which the command decrees to be
obligatory—is something existing. He gives the following example: ‘In
the command “Shut the door” it is ordered that the door is to be closed,
that is, a situation is claimed which would make the proposition “The
door which before was open, is now closed” a true one.’ If we say of a
situation which is decreed to be ohligatory in a command that it makes
the statement ‘The door is shut’ true, then this means that the situation
in the command is an existing situation, i.e. the situation which consists
in the fact that the door is shut. Jorgensen thus assumes that what is
commanded in the command ‘Shut the door’ is the existing event of
shutting—the-door. This existing event, in which the modally indifferent
substrate ‘shutting—the—door’ assumes the mode of Is, occurs—if at all—
196 Jorgensen’s Theory ch. 51

only after the command ‘Shut the door’ has been given, after the meaning
‘Shut the door’ is present and has acquired its ideell existence; consequently
the actual event is something different from the meaning of the command
in which the modally indifferent substrate ‘shutting—the-door’ appears in
the mode of Ought and only in this mode and nOt that of Is.
The assumption that an imperative contains an indicative factor is
connected with the generally accepted view that the Ought is ‘directed’
to an Is, and thus that an Is must be immanent in an Ought. But that is an
incorrect account of the relation between an Ought and the Is which
agrees with it. If peOple say that an Ought is ‘directed’ to an Is, this can
only refer to the intention of the person who gives an order or posits a
norm in which a particular behaviour of another person is decreed to be
obligatory. But the command or norm which is the meaning of this act
does not, and cannot, itself have an intention. That which is immanent in
a command or norm, in the Ought of a particular behaviour—that which
it ‘contains’—is the behaviour as modally indifferent substrate and not
the behaviour in the mode of Is, since the mode of Ought cannot include
the mode of Is. What we can say of the relation of the Ought of a
particular behaviour to the Is of this behaviour is—as was emphasized
before—that the modally indifferent substrate of the behaviour existing
in reality matches the modally indifferent substrate of the behaviour
decreed to be obligatory in the command or norm, but not that the
Ought is ‘directed’ to an Is. The statement that the modally indifferent
substrate of the behaviour existing in reality matches the modally
indifferent substrate decreed to be obligatory in the command or norm is
equivalent to the statement that the actually occurring behaviour agrees
with the norm.
The misleading practice of expressing the meaning of an act of
commanding with the words ‘something ought to be’ contributes to the
erroneous view that the Ought is ‘directed’ to an Is. But the meaning of
an act of commanding is not that something ought ‘to be’, but merely
that something ‘ought’, i.e. that it is obligatory and nOt that it is existing.
Jorgensen confuses—as do many Others—the ‘shutting—of—the-door’
decreed to be obligatory in the command and the ‘shutting-of—the-door’
existing in reality; he disregards the distinction between the modally
indifferent substrate ‘shutting—the—door’ appearing in the mode of Ought
and the substrate appearing in the mode of Is.
The assumption that the imperative, the command, the norm—
understood as the meaning of an act of commanding, of an act of
positing a norm (i. e. of an act of will)—contains an indicative factor
might also be traced back to the assumption that the person who issues a
command—the commander, the norm—positor—must know or have an
idea of what he commands or piescribes; he must let the addressee know
what he commands or prescribes; on the other hand, the addressee must
 Jorgensen’s Theory 197
understand the command or norm—i.e. the meaning of the act of
commanding or of norm-positing—in order to be able to behave in
accordance with the command, the norm, the imperative. He must know
what he has been commanded to do, how he is to behave. Suppose I am
in a room with an open window, and the noise from the street disturbs
me. I have an idea—i.e. I think—‘If the window is shut, the noise from
the street will not disturb me.’ So I give an order to my son Paul: ‘Shut
the window.’ My thought ‘If the window is shut, the noise from the
street will not disturb me’ does have an indicative character. But this
indicative element is not contained in my act of will, but expresses the
meaning of an act of thought which is different from, and precedes, my
act of will. What is contained in the act of will is the modally indifferent
substrate ‘shutting—the—window’ which has neither an indicative nor an
imperative character. In order to let the addressee—in this case, my son
Paul—know what is commanded of him, what he is to do, the only thing
needed is the modally indifferent substrate ‘shutting—the-window’
appearing in the imperative mood—the mood/mode of Ought—and not
any indicative factor contained in the command.
By understanding the command addressed to him, the addressee—my
son Paul—knows that it is be Paul, and not his brother Hugo, who is to
shut the window, that it is the window, and not the door, which he is to
shut, and that it is an act of shutting the window, and not an act of
opening it, which he is to perform. By performing these acts of thought,
he describes the command as the meaning of an act of will concerning his
behaviour. The sentences ‘It is I Paul who . . .’, ‘It is the window which I
,‘It is an act of shutting the window which I am to perform’ are
statements which are true or false and to which the principles of logic are
applicable. But these statements are not contained in the imperative, in
the norm, in the meaning of the command or norm-positing act; they are
statements about the command, about the norm. Indeed, the commander
himself can make these statements together with the command, in order
to make the meaning of the act of commanding understandable to the
addressee. A father who orders his son to shut a certain window can,
while he utters the imperative ‘Shut the window’, point to Paul and. then
to the window and then make the motion of shutting it. He can also say:
‘It is you Paul, and not your brother Hugo—who is in the same room—
who is to shut the window; it is this window, and not the door, which
you are to shut; it is the shutting of the window, and not the shutting of
the door, which is commanded to you.’ But these statements, which are
true or false, are completely different sentences from the command-
sentence—the norm—and are not contained in the command or norm,
which is the specific meaning of the act of commanding or of norm—
positing. The meaning—content of the command or norm and the
meaning-content of the three statements are different.
198 Jorgensen’s Theory ch. 51

When Jorgensen says ‘In the command “Shut the door” it is ordered
that the door is to be closed, that is, a situation is claimed which would
make the proposition “The door which before was open is now closed” a
true one’, he is describing the meaning of the act of commanding; he is
making a statement about the command. This statement is Jorgensen’s; it
is nOt contained in the father’s command ‘Shut the door’ and cannot be,
since a command and a statement are two different meaning—contents:
the former is the meaning of an act of will, the latter the meaning of an
act of thought (NOTE 138).
 52
Husserl’s Theory of the
‘T/oeoretical Content’ ofoz Norm
What Jorgensen calls the ‘indicative factor’ contained in a command,
Edmund Husserl calls the ‘theoretical content’ of a norm (1970: 81—2).
He says of every practical discipline that ‘its rules [i.e. norms] must have
a theoretical content separable from the nOtion of normativity (of the
“shall” or “should”).’ The norm ‘An A should be B’ is ‘identical’ with, or
‘at least’ equivalent to, the sentence ‘Only an A which is a B is a good A’
(p. 82). He calls this a purely ‘theoretical’ sentence and claims that the
norm ‘implies’ this theoretical sentence:
Every normative proposition of, e.g., the form ‘An A should be B’ [i.e. a norm]
implies the theoretical proposition ‘Only an A which is B has the properties C’, in
which ‘C’ serves to indicate the constitutive content of the standard—setting predicate
‘good’ . . . The new prOposition is purely theoretical: it contains no trace of the
thought of normativity. (p. 88)
Thus, according to Husserl, the ‘normative’ sentence ‘An A should be B’
expresses ‘normativity’; in other words, this sollen—sentence is a norm.
His example of a norm is ‘A soldier should be brave’; and he analyses it
in this way: “‘A soldier should be brave” . . . means that only a brave
soldier is a “good” soldier’ (p. 82). This sentence is a judgment, as Husserl
says explicitly; indeed, a value—judgment.
If the sentence ‘A soldier is to be brave’ is a norm, then it cannot be
‘identical’ with or ‘equivalent’ to the judgment ‘Only a brave soldier is a
good soldier’, since a norm and a judgment (i.e. a statement) are two
completely different meanings: the norm is a prescriptive meaning and
the statement a descriptive meaning. If—as Husserl claims—the
sentence ‘An A should be B’ ‘implies’ the sentence ‘Only an A that is B
has the property “good” ’, we do not have one sentence but two sentences
one of which is a prescriptive norm and the other a descriptive statement.
Husserl himself says that the theoretical sentence is a ‘new’ sentence
which contains no thought of ‘normativity’. This statement, which is
true or false, cannot be ‘implied’ in the norm, which is neither true nor
false. If this were the case, we would have a sentence which is
simultaneously neither true nor false, and either true or false, and this is
impossible because 1t is self—contradictory. The value—judgment ‘Only a
brave soldier 1s a good soldier’ presupposes the valid norm ‘A soldier 1s
200 Husserl’s Theory ch. 52
tO be brave.’ This value—judgment relates tO something other than itself,
i.e. tO the norm presupposed to be valid, and it asserts that if a soldier
actually behaves bravely, then his behaviour agrees with this norm. That
a soldier’s behaviour is ‘good’ simply means that it agrees with a norm. It
should be noted that the expression ‘Only a brave soldier is a good
soldier’ is inaccurate. What is ‘gOOd’—i.e. what agrees with a norm—is
nOt the soldier, but a certain behaviour of the soldier. For the norm
prescribes a certain behaviour. The norm ‘A soldier is tO be brave’ asserts
that a soldier is tO behave in a certain way, i.e. in a way called ‘brave’.
The value—judgment that a certain behaviour ‘agrees with’ a certain
norm—such as the value—judgment ‘Brave behaviour by soldiers is
good’, which asserts that soldiers’ brave behaviour agrees with the norm
‘Soldiers’ behaviour is tO be brave’, i.e. the norm ‘Brave behaviour by
soldiers is tO exist’—does indeed express a relation Of identity. But the
identity in question is nOt between the norm and the statement
representing the value-judgment, but—as indicated earlier—between the
modally indifferent substrate ‘behaving—bravely-by-soldiers’ decreed to
be obligatory in the norm, and the modally indifferent substrate
appearing as existent in the statement representing the value—judgment.
The value-judgment is a statement which can be true or false. It is true
if the norm tO which the value—judgment relates is valid; it is false if this
norm is nOt valid. And a value—judgment is meaningful only in relation tO
a certain norm! If the norm ‘Human beings are never tO kill other human
beings’ is valid, then the value—judgment ‘Refraining from killing other
human beings is always good behaviour’ is true, and the value—judgment
‘Refraining from killing Other human beings is nOt always good
behaviour’ is false. There is a logical contradiction between the two
value-judgments; only one Of them is true and the other is false. Both
relate tO the same norm. There is no conflict Of norms parallel to the
lOgical contradiction between the two value—judgments, since only one
norm is valid, i.e. ‘Human beings are never tO kill Other human beings.’
But if besides the moral norm ‘Human beings are never tO kill Other
human beings’, there is also a valid legal norm ‘Human beings are to kill
Other human beings in execution Of a death-sentence and in war’, if
therefore there is a conflict Of norms, and if the two value——judgments
correspond tO two different norms (in that One Of the value——judgments says
‘Refraining from killing Other human beings is always morally good
behaviour, and the Other ‘Refraining from killing Other human beings 13
not always legally good behaviour’), then these two value——judgments do
nOt constitute a logical contradiction. Both are true. But the two norms
do nOt constitute a logical contradiction since both are valid, as we shall
show later (cf. below, ch. 57. V).
If the same statute contains two conflicting norms such as ‘If one Of
two Catholic spouses marries again while the Other is still living, then in
 Husserl’s Theory 201
all cases he or she is to be punished for bigamy’ and ‘If one of two
Catholic spouses marries again while the other is still living, but after
receiving an official dispensation, he or she is n0t to be punished for
bigamy’, then the two value—judgments ‘The remarriage of a Catholic
person during the lifetime of his Catholic spouse is always illegal’ and
‘The remarriage of a Catholic person during the lifetime of his Catholic
spouse is not illegal if an official dispensation was granted’ do not
constitute a logical contradiction, since both are true. They describe a
conflict of norms, and a conflict of norms is mm a logical contradiction.
In other words: value—judgments which rest upon two conflicting—and
that means, valid—norms do not constitute a logical contradiction since
the two conflicting norms do not constitute a logical contradiction.
The fundamental point is this: the fact that logical principles are
applicable to value—judgments—i.e. statements which are true or false—
does nOt entail that these principles are applicable—directly or indir—
ectly—.—to the norms to which the value—judgments relate.
 53
Sigwart’s Theory of the Assertion
Contained in cm Imperative
Christoph Sigwart makes a similar claim: ‘No doubt the Imperative also
includes the statement that the speaker wills the act which he commands’
(1895: i. 17). But he adds: ‘But the statement is here contained in the fact
of speech, not in what is said; it is just as true that in every utterance of
the form A is B the mere fact of speech involves the statement that the
speaker thinks and believes what he says.’
That is incorrect. No fact can ever contain an assertion, and so neither
does the fact of speaking or uttering an imperative. An assertion—Le.
a statement——is the meaning of an act of thought, and to speak or utter
an imperative is to give immediate expression to an act of will whose
meaning is the imperative (or norm). The assertion Sigwart claims is
contained in the imperative is the assertion of the existence of an act of
will whose meaning is the imperative (or norm). The commander can—
but need not—express his command using the sentence ‘I want you.’
That is indeed a statement about the existence of an act of will. What we
then have is nOt an imperative containing an assertion—for linguistically
no imperative is present—but a statement about an act of will whose
meaning is a command. If the commander expresses his will in an
imperative, he does not assert anything. But the addressee can think: the
person who uttered the imperative wills that I am to behave in the way
specified in the imperative. The meaning of this act of thought is an
assertion, which can be true or false. But the fact of the saying or uttering
of a declarative sentence ‘A is B’ does nOt contain an assertion that the
speaker thinks and believes what he says. He can say ‘A is B’ and not
think anything at all, or think and believe ‘A is not B.’ But the person
spoken to can—but need not—think that the speaker thinks thus and
believes what he says. The statement ‘A is B’ must be distinguished from
the statement ‘I think, I believe that A is B. ’ The latter is indeed a
statement about an act of thought whose meaning is A is B.’ But it is a
completely different statement from the statement A 18 B’ ,which is not
a statement about an act of thought.
 54
Dubislav’s Theory of the
‘Reeasting’ ofRequirement-
sentences into Assertion-sentences
Jorgensen partly follows Walter Dubislav (1937), who examined the
question of the applicability of the rule of inference to requirement—
sentences (i.e. to norms), and especially the question of inferences from
the validity of a general norm to that of an individual norm. Dubislav
_asserts that no imperative is possible without an imperator, that an
imperative without an imperator is an ‘impossible concept’ (p. 335), and
that there is a fundamental difference between assertion—sentences and
requirement—sentences, namely that requirement—sentences are nOt sub—
ject to the true—false alternative. Hence the logical rule of inference is not
applicable to requirement-sentences.
But he continues: If we infer a requirement—sentence ‘Cain is nOt to
kill Abel’ from another requirement-sentence ‘Human beings are nOt to
kill Other human beings’ (p. 339), this 1s possible only if we perform a
‘recasting’ of the requirement—sentences (pp. 340 f. ), that is, if we recast
requirement—sentences into assertion—sentences subject to the true-f-alse
alternative. The requirement-sentence ‘Human beings are not to kill
other human beings’ is recast into an assertion—sentence which Dubislav
formulates as T‘he requiring authority requires of human beings that
they bring about a state of affairs which can be described as follows: If X
is a human being, then there are no human beings which he kills.’ ‘This
if—then sentence is called the assertion—sentence belonging to the
requirement—sentence. ’It can be reformulated more simply as ‘Human
beings do not kill human beings’ Dubislav does not formulate the
assertion-sentence which belongs to the requirement-sentence ‘Cain
is nOt to kill Abel’ But in the light of what he says about the recasting of
sentences, it can only be ‘Cain does nOt kill Abel.’ The assertion—
sentence ‘belonging’ to the requirement-sentence is consequently a
statement asserting that the requirement is complied with. But the fact
that from the statement about the observance of a general norm there
logically follows a statement about the observance of an individual norm
corrresponding to the general norm does not entail that from the validity
of the general norm there logically follows the validity of the individual
norm (cf. below, ch. 58. IX ff).
204 Dubislav’s Theory ch. 54
According to Dubislav, the application of the logical rule of inference
to requirement—sentences is the result of the following principle: ‘A
requirement—sentence F 13 derivable 1n a broad sense from a requirement—
sentence E, if the assertion—sentence belonging to F 13 derivable from
at least the assertion—sentence belonging to E in conjunction with
true assertion—sentences compatible with the assertion-sentence corres-
ponding to F’ (p. 341). Applied to the example above: The requirement-
sentence ‘Cain is not to kill Abel’ is derivable from the requirement—
sentence ‘Human beings are not to kill human beings’ only if the
assertion—sentence ‘Cain does not kill Abel’ is derivable from the
assertion—sentence ‘Human beings do not kill human beings’ and
the assertion—sentence ‘Cain and Abel are human beings.’
But that is incorrect. The derivability of the assertion—sentences
‘belonging’ to the requirement—sentences does not imply the
derivability of the requirement-sentences from one another. For if, as
Dubislav correctly insists, no imperative is possible without an imper—
ator, then the imperative ‘Cain is not to kill Abel’ can be valid only if
there occurs an act of will of which this imperative—to be exact, this
individual norm—is the meaning. The truth of the assertion-sentence
‘Cain does not kill Abel’ follows logically—Le. by way of a thought-
process—from the truth of the assertion—sentences ‘Human beings do
not kill human beings’ and ‘Cain and Abel are human beings.’ But the
requirement—sentence—i.e. the individual norm—‘Cain is not to kill
Abel’ is valid only if it is posited by an act of will, and this act of will
cannot follow logically—Le. by way of a thought—process—from the
validity of the general norm posited by God, ‘Human beings are not to
kill human beings’, and the truth of the statement ‘Cain and Abel are
human beings.’ The general norm can be valid and the statement ‘Cain
and Abel are human beings’ be true, and nevertheless the individual
norm ‘Cain lS nOt to kill Abel’ not be posited and therefore not be valid.
The validity of a norm (an Ought), its ideell existence, is conditional
upon the real existence (an Is) of the fact of an act of will of which the
norm is the meaning. But the truth of a statement is nOt conditional upon
the fact that it is thought or uttered. A statement must be thought and
uttered in order, not to be true, but to be able to be judged true or false.
If a person says ‘If human beings are not to kill human beings, and Cain
and Abel are human beings, Cain is not to kill Abel’, then what actually
occurs is not an inference of the validity of one norm from that of
another—as we shall see later.
Dubislav calls the operation of correlating a requirement—sentence and
an assertion—sentence about the observance of the requirement a
‘recasting’ (NOTE 139). But this ‘recasting’ does nOt yield the desired
result, i. e the applicability of logical principles to requirement—
sentences. To‘recast’ one thing into another means to change the form
 Dubislav’s Theory 205
while keeping the matter, for example, to make a gold ring from a gold
cross. But from the fact that a cross and a ring are bOth made of gold, it
does not follow that a person can place bOth the cross and the ring on his
finger. If the requirement-sentence is ‘recast’ into the corresponding
assertion—sentence, the assertion-sentence and the requirement—sentence
must have a common substance and differ only as to their form. But that
is true only if the ‘form’ is the mode of Is and the mode of Ought, and
the substance common to both sentences is the modally indifferent
substrate. The norm—i.e. the sentence ‘Human beings are not to kill
human beings’—differs from the statement about the observance of the
norm—i.e. the sentence ‘Human beings do not kill human beings’—in
that ‘human—beings—nOt—killing-human—beings’, the modally indifferent
substrate, appears in the first sentence (the norm) in the form—i.e. the
mode—of Ought, and in the second sentence (i.e. the statement about
the observance of the norm) in the mode of Is (NOTE 140). But this
difference of form is of the utmost importance for the question of the
applicability of the logical principle of inference. Just as the fact that the
cross cast from a gold ring is also made of gold does not entail that one
can place a gold cross on one’s finger, so the fact that the logical principle
of inference is applicable to statements about norm—observing behaviour
does not imply that this principle is applicable to the norms.
Jorgensen and Dubislav clearly believe that norms—unlike state—
ments—are neither true nor false but rather valid or invalid, and that
there exists no analogy or parallel between the validity of an imperative
(or norm) and the truth of a statement (NOTE 141). Hence, in order to
prove that logical principles are applicable to imperatives (or norms),
they look for a statement which is related in some essential way to an
imperative (or norm) and to which logical principles are directly
applicable—because the statement is true or false—and they then
conclude that the logical principles are indirectly applicable to the
corresponding imperative (or norm). And the statement related to
the norm is the statement about the actual behaviour agreeing with
the norm.
 55
Hofstatlter and McKinsey’s Theory
of the Analogy hetween the
Satisfaction ofan Imperative and
the Truth ofa Sentence; AlfRoss’s
Theory of the Parallel hetween the
Ohseroance-valae ofan
Imperative and the Trath-valae of
a Statement
This is also what Albert Hofstadter and J. C. McKinsey try to do when
they discuss ‘the satisfaction of imperatives’ (1939): ‘Roughly, we
understand an imperative satisfied if what is commanded is the case.
Thus the fiat “let the door be closed” is satisfied if the door is closed. It
will be seen that the satisfaction of an imperative is analogous to the truth
of a sentence’ (p. 447).
Alf Ross follows in their footsteps. He rejects Jorgensen and Dubislav’3
attempts to justify the application of logical principles to imperatives,
and says:
We must therefore investigate whether there might be another possibility of
interpretation, permitting the application of the logical systems to imperatives. There
is such possibility if we ascribe the logical values ‘satisfaction’ and ‘non—satisfaction’
to imperatives in the way that an imperative I is said to be satisfied, when the
corresponding indicative sentence S describing the theme of the demand, is true, and
non- satisfied, when that sentence is false. (1941: 60)
An imperative is satisfied if it is actually complied with, if there occurs
behaviour which agrees with the imperative. The statement that this
agreement obtains is what Dubislav called the assertion-sentence
belonging to the requirement-sentence. Ross believes ‘that there is a
complete parallelism between the satisfaction value of the I—sentences
and the truth value of the S—sentences’. And he declares: ‘Accordingly, to
infer one imperative from another means to say something about a
 Hofstadter and McKinsey; Ross’s Theory 207
necessary connection between the satisfaction of the imperatives in
question’ (p. 61). That is incorrect. For as will be shown later, there is no
analogy or parallel between the ‘observance—value’ of an imperative or
norm and the ‘truth-value’ of a statement (cf. below, ch. 57. VIII).
 56
Ger/047d Frey’s Theory
Another attempt to justify the applicability of logical principles to
imperatives (norms) claims that there is not only one, but two different
statements which ‘correspond’ to, or are ‘correlated’ with, an imperative.
Gerhard Frey says: ‘To the imperative “Shut the door!” there cor-
responds a descriptive sentence “The door is to be shut”, or as one could
also formulate it, though not as clearly as far as its logical form is
concerned, “Someone commands that the door be shut” or “There is a
person who commands that shutting-the—door is an act which is to be
carried out” ’ (1957: 440). But Frey also correlates another ‘descriptive
sentence’ with an imperative: ‘To the imperative “Karl, shut the door!”
there corresponds a descriptive sentence “Karl shuts the door”. This is a
statement—sentence . . . It is therefore called a “fulfilment—statement”’
(p. 440). From the fact that the principle of contradiction and the rule of
inference are applicable -to the two statement-sentences which correlate
with the imperative sentence, it follows according to Frey that they are
applicable to the imperative (the norm) (pp. 443, 465)
Concerning the first ‘correlation’ or ‘correspondence’ it should be
noted that ‘The door is to be shut’—if this 1s understood as a descriptive
sentence—is a statement about the validity of the imperative—Le. of the
command or norm—which is the meaning of the act of commanding.
But what Frey is thinking of is a statement about the occurrence of the
act of commanding, as is clear from the two other sentences Frey
considers synonymous with the first sentence: ‘Someone commands that
the door be shut’ and ‘There is a person who commands that shutting—
the—door is an act which is to be carried out’ (p. 440). The second of these
two sentences is incorrectly formulated, if it is synonymous with the
other (as Frey assumes). For a person does not command that something
is the case, but rather that something is to be done or is not to be done,
and consequently not ‘that such and such is an act which . . .’, but rather
‘that an act is to be performed’. Frey admits that the sentences he
correlates with the imperative describe the act of commanding when he
says ‘All these different formulations of the descriptive sentence
corresponding to the imperative express the fact that the demand has
been issued, that 1t has been addressed to someone’ (p. 440) and ‘In what
follows we therefore always consider imperatives as enactments of some
imperator, even if he represents perhaps an abstract personification’
(p. 442). The requirements whose logic Frey wants to explain are
 Frey’s Theory 209
therefore positive norms posited by acts of will. If what is being asserted
is the existence of the act, then it is incorrect for Frey to add ‘What is
asserted is thus the existence of the requirement as such’ (p. 440). For the
act whose meaning is the requirement is not the requirement which is the
meaning of the act. And the real existence of the act is not the ia'eell
existence of the requirement (understood as the meaning of the act). The
real existence of the act is the condition for the ia'eell existence of the
requirement. And the existence of the requirement is its validity. The
existence of the act is not a kind of ‘Validity’. It is therefore incorrect for
Frey to call the sentences he correlates with the imperatives and which
refer to the act of commanding ‘imperative existence statements’, and to
mean by this, sentences which assert the existence of the command
(understood as the meaning of an act of will).
It is also incorrect to say that the sentence which asserts the existence
of the act of commanding ‘corresponds’ to the imperative sentence.1 We
cannot speak of ‘correspondence’ in any possible sense of the word, since
the act and the meaning of the act are two different things. A-sentence
which asserts something, i. e. a descriptive sentence, can correspond (or
fail to correspond) only to that which it asserts or describes. The
‘descriptive sentence’ asserting the existence of an act of commanding
corresponds to the fact that a command with a certain content was given;
but it does not correspond to the meaning of the act of commanding.
What does (or fails to.) correspond to the meaning of the act of
commanding—i. e the imperative, the command, the norm—is the
actual behaviour of the addressee. It 18 only of a sentence which asserts
the validity of the command (the norm) that one can say that it
‘corresponds’ to the command (understood as the meaning of an act), i.e.
that it is true. A sentence is true if it corresponds to what it asserts, and
false if it does nOt.
That the ‘correlation’ of a descriptive sentence with an imperative
sentence does not represent a ‘correspondence’ is particularly clear in the
second case of what Frey calls ":correspondence K‘arl, shut the door!’
and ‘Karl shuts the door.’ What corresponds to the command-sentence
‘Karl, shut the door!’ is not the sentence ‘Karl shuts the door’, but the
fact that Karl shuts the door, i.e. complies with the command. If the sen-
tence ‘Karl shuts the door’ can be correlated with the command-
sentence (the imperative sentence) ‘Karl, shut the door!’, then so can the
sentence ‘Karl does not shut the door.’ The first of these two sentences

1 [Translator’s Note: Kelsen’s criticism of Frey’s use of the term entsprechen (here
translated ‘correspondence’) is difficult to grasp in English. His claim is that one cannot say of
one kind of sentence that it corresponds to another, but only that a descriptive sentence
corresponds to its object, or that behaviour corresponds to a norm. In other words, he restricts
Entsprechang to what could be called ‘agreement’ (i.e. of a statement with the facts, or of
behaviour with a norm).]
210 Frey’s Theory ch. 56
does not ‘correspond’ to the command—sentence any more than the
second.
From the fact that the principles of logic are applicable to statements
about the existence of a norm-positing act or about the existence of
behaviour agreeing with a norm, it does not follow at all—as we shall
see—-—that these principles are applicable to norms, which are the
meaning of the acts in question and which are actually observed (or not
observed). Frey says ‘From the fact that two different descriptive
sentences correspond to an imperative, it follows that two imperatives
can be contradictories in two different ways’ (p.443). Frey infers the
applicability of the principle of contradiction to imperatives from
nothing other than the claim that the descriptive sentences correlated
with the two imperatives ‘correspond’ to the two imperatives. But, as we
have seen, there is no ‘correspondence’.
 57
The Applicability of tloe Principle
of Contradiction to Narms
I. Its Applicability to Sollen-sentences

The basic presupposition of the principles of traditional logic concerning

the truth of statements is that there are true and false statements, that is,
there are statements which have the property of being true or false (NOTE
142). Statements which are true or false are the meaning of acts of
thought. But norms are the meaning of acts of will directed to the
behaviour of others, and so are neither true nor false. Consequently they
are not subject to the principles of traditional logic, since these relate to
truth and falsity.
The linguistic expression of a norm is an imperative or sollen—sentence;
and when people assume that the logical principles of contradiction and
of inference apply to norms, they are usually thinking of sollen-
sentences. For example, people say that there is a logical contradiction
between the following two sollen-sentences: ‘If a doctor considers his
patient’s illness to be incurable, he is to tell him the truth if asked about
it’ and ‘When a doctor considers his patient’s illness to be incurable, he is
not to tell him the truth if asked about it.’ And that from the sentence
‘Everyone is to keep his promises’ there follows logically the sentence
‘Mr Meier is to keep his promise of marriage to Miss Schulze.’ But when
people make these claims, they do not pay attention to the fact that the
sollen-sentences in question are either (1) valid norms of a positive moral
or legal order, or (2) statements about the validity of such norms; indeed,
they do not even consider whether they are sollen-sentences in which the
Ought is the meaning of an act of will about the behaviour of others, or
sollen—sentences which are statements about such meanings of acts of
will. In other words, people are thinking of (3) sollen-sentences which
are neither of the above. If we assume that there is an essential
correlation between Ought and will, then these sentences do not make
sense. Husserl,1 though, believes there is an Ought which is not
connected with any will. If he is right, then these sollen—sentences do
1 Husserl (1970: 81 f.); cf. above, ch. 52. But Husserl also calls sollen-sentences which are n0t
connected with any real aCt of will ‘requirements’. He does not deny that there are sollen—
sentences in which the Ought is connected with a will (i.e. is the meaning of an act of will);
rather he presupposes it as being obvious.
212 Principle of Contradiction and Norms ch. 57
make sense, and the logical principles of contradiction and of inference
appear to be applicable to them—by analogy. But even if we make this
assumption, it does nOt follow that these principles are applicable to
norms of a positive moral or legal order, which are the meaning of real
acts of will and consequently neither true nor false (NOTE 143).

II. A Possible Solution Based on a Connection between Willing and

Thinking

One previously mentioned way of trying to avoid this difficulty is to

assume that thinking is essentially bound up with willing: whoever wills
something must know what he wills. What is willed is therefore also the
object of thought, and as such, is subject to the principles of bivalent
true—false logic. But it has already been pointed out that willing and
thinking are two essentially different functions, and that no thought can
be immanent in an act of will. It is true that the person who wills
something must know what he wills; but the act of thought precedes the
act of will and is not immanent in it (NOTE 144). W/oat he wills is not the
meaning of an act of thought which can be expressed in a statement
which is true or false. If the willing is about his own behaviour, then
what he wills is a modally indifferent substrate; as such it is neither true
nor false, and so the principles of traditional propositional logic do not
apply to it, since they relate to truth—value. And if the willing is about the
behaviour of another, what we have is a norm: what is willed appears in
the mode of Ought. It is for this very reason that a norm is neither true
nor false (NOTE 145).

III. No Parallel between Truth and Validity (or Compliance)

When people believe that the logical principles of contradiction and of

inference can be applied to norms even though they are neither true nor
false, it therefore cannot be because of their truth, but because of some
other property of a norm. There must be norms which have this specific
property and others which do not. And this property of a norm must be
analogous to the truth of a statement.
The principles of propositional logic, namely the principle of
contradiction and the rule of inference, concern the relations between
statements. The problem of a logic of norms is therefore that of applying
to the relations between norms principles analogous to those of
propositional logic. In a logical contradiction between two statements
only one statement can be true and the other must be false; similarly
there would have to be a relation between two norms such that if one
§ IV Principle of Contradiction and Norms 213
norm has the property analogous to truth, the other cannot have it. And
just as the truth of one statement can be inferred from the truth of
another, so there would have to be in a norm a property analogous to
truth from which we could infer this property in another norm.
The various attempts to show that logical principles are applicable to
norms have taken two directions, as was indicated earlier. One is to make
the validity of a norm the analogue of the truth of a statement; the other
is to make the observance of a norm the analogue of truth.
With respect to the firSt line of argument, it has already been established
that there is no analogy between the truth of a statement and the validity of
a norm, since validity and non—validity are not properties of the norm as
truth and falsity are properties of a statement. The validity of a norm is its
specific ideell existence, and an invalid norm is a non—existing norm, while a
false statement is an existing statement (NOTE 146).

IV. Contradictions between Statements and Conflicts between

Norms

It becomes particularly clear that there is no analogy between the truth

of a statement and the validity of a norm if we compare a logical
contradiction between two statements with a confliCt of norms. Two
contradictory statements, such as ‘God exists’ and ‘God does not exist’
or ‘God is juSt’ and ‘God is not just’, exist side by side, but only one of
them can be true. And when one of them is true, the other must be false.
A conflict of norms obtains when one norm decrees a certain behaviour
to be obligatory and the other decrees the omission of this behaviour to
be obligatory. But we cann0t claim that if one of the conflicting norms is
valid, the other muSt be invalid, just as one statement muSt be false when
the other is true. When we have a conflict of norms, both norms are
valid; otherwise, there would be no conflict. Neither of the conflicting
norms repeals the validity of the other. And it makes no difference
whether the two norms belong to the same normative order or to
different normative orders, for example, a norm of morality and a norm
of positive law (NOTE 147). The repeal of the validity of one of the
norms, or of both norms, can only be the result of norm—creating
behaviour, in particular of a derogating norm As Adolf Merkl had
already shown (1917: 75 ff.), the principle Lex posterior derogat legi
priori is not a logical principle, but a norm of positive morality or
positive law. There 1s no conflict between a norm and the derogating
norm which repeals its validity, since the former ceases to be valid when
the latter becomes valid. Theie can be no question of an analogy between
this relation and the relation of contradiction between two—existing—
Statements.
214 Principle of Contradiction and Norms ch. 57
The relation which does obtain between two conflicting norms is not a
logical contradiction, but rather an antithesis or opposition. A logical
contradiction can exist only between judgments which are true or false.
Consequently there is no contradiction between two concepts, which are
neither true nor false, such as ‘circle’ and ‘non—circle’—one of the two
concepts certainly does not make the other one impossible (NOTE 148)—
or between two norms, which are neither true nor false. The situation
created by a conflict of norms is one in which observing one of the
conflicting norms implies violating the other, and not a situation in
which only one of them can be valid. And this is so if only because the
answer to the question ‘Which of the two norms is invalid?’ can only be
given by a valid legal order, that is, by applying valid legal norms. A
conflict of norms can never be resolved by scientific interpretation—
though it is often assumed that it can—for example, by claiming that in
the event of a conflict of norms, one is to observe the norm the
observance of which would avoid a greater evil than would be caused by
the observance of the other. For instance, were I to be under a duty to go
to school tomorrow and also under a duty to stay at home so as not to
leave my sick mother alone, I would have to fulfil the second duty, and
the first would not be valid in this case. Such a conflict-resolving
principle can—but need not—be decreed by a positive norm. If nOt,
then the conflict remains unresolved (NOTE 149); and unresolved
conflicts of norms are a not infrequent occurrence.
As far as conflicts between general norms are concerned, it is not the
case—as I claimed in my Pure Theory of Law—that a conflict of norms
which cannot be resolved by the principle Lex posterior derogat legi
priori makes no sense and that both norms are therefore invalid. Each of
the two general norms makes sense and both are valid.

V. The Possibility of Conflicts between Norms Belonging to

Different Systems

It is not possible to deny that conflicts can occur between two norms
belonging to different normative orders—such as a moral order and a
legal order—by claiming—as I once did——that from the point of view of
a given normative order only the norms of that order are valid, and so in
the event of a conflict between norms belonging to different orders (e.g.
a moral order and a legal order), from the point of view of one order the
conflicting norm of the other order is invalid, or its validity is ignored,
and vice versa. The moral order concerns itself with the legal order in so
far as certain norms of the moral order are addressed to law—creating
individuals, ordering them to posit, or not to posit, legal norms having a
certain content. A legal order which fails to punish the intentional killing
§V Principle of Contradiction and Norms 215
of a child by its father is immoral or morally bad according to the
modern moral order valid in western countries. Similarly, a legal system
which prescribes capital punishment is immoral from the point of view
of a morality which forbids homicide in all circumstances. It is true that
the law does not prescribe that morality have a certain content; but when
a given legal system is applied, behaviour which agrees with a given
moral order can be judged to be illegal, and behaviour which violates a
given moral order, to be legal. Law and morality can relate to the same
behaviour.
When there occurs an act of creation of a legal norm (or a failure to
create a legal norm) which constitutes a violation of a moral order, the
reaction which the moral order prescribes for this violation is disap-
proval of the moral order, and not the repeal of the validity of the legal
norm violating the moral order or the becoming—valid of a legal norm
agreeing with the moral order. The moral order cannot repeal the
validity of a legal norm any more than it can make one valid. One of the
errors of the theory of so-called Natural Law—which is a set of moral
norms addressed to law-creating individuals—is that it assumes that
Natural Law repeals the validity of a norm of a positive legal order when
such a norm conflicts with it. It cannot do so any more than a positive
legal order can repeal the validity of a Natural Law with which it
conflicts. It cannot be denied—either from the point of view of the
moral order or from that of the legal order—that a conflict of norms can
exist between a moral norm and a legal norm.
The reaction which a legal order prescribes for behaviour which is
illegal but agrees with a conflicting moral order is that this behaviour is
made the condition for a specific legal sanction (punishment or execution
of judgment)—and behaviour is illegal to the extent that it is made the
condition for such a sanction—and not that the validity of the
conflicting moral order is repealed by the legal order. Law cannot repeal
the validity of a conflicting moral norm any more than morality can
repeal the validity of a conflicting legal norm. From the point of view of
a given legal order, it cannot be claimed that a moral order which
conflicts with one of its norms is n0t valid, or that its validity is ignored.
If the following norm of a positive morality ‘Human beings are not to
kill human beings under any circumstance’ is valid generally for the
subjects of a positive legal order, it cannOt be claimed that this moral
norm is not valid ‘from the point of view of the legal order’ that
prescribes capital punishment. The meaning of the general legal norm
prescribing capital punishment is that under a certain condition (e.g.
murder), capital punishment is to be imposed regardless of the fact that
there is a valid moral norm prohibiting homicide in all circumstances.
There is no fundamental difference between this failure to take into
consideration the existence of a valid moral norm and a legal provision
216 Principle of Contradiction and Norms ch. 57
requiring the death penalty for all murderers irrespective of sex (as
opposed to a legal order which requires that women simply be
imprisoned and thus excludes them from the death penalty). When a
valid moral norm prohibits the killing of human beings under all
circumstances, then the act of creating a legal norm requiring the death
penalty is immoral and ought to be the object of moral disapproval, and
will in fact be the object of moral disapproval. Current efforts to have
capital punishment abolished and replaced by imprisonment are evidence
of this.
A positive legal order commands its law-applying organs—judges in
particular—to apply only the norms of this legal order, and to apply
moral norms only when they are the object of delegation by this legal
order. Thus, in the event of a conflict between a legal norm and a valid
moral norm, a law—applying organ is ordered not to apply the moral
norm. That the moral norm is nevertheless valid can be seen from the fact
that a legal judgment conflicting with a moral norm is the object of moral
disapproval.

VI. No Conflict between a Norm and the Norm Repealing it

As was indicated earlier, a conflict of norms must be distinguished from

the relation between a norm and the derogating norm which repeals its
validity. This relation is not a conflict of norms. There is simply nothing
in propositional logic analogous to the function of derogation When
two statements are logically contradictory, one is false if the other is true.
It does not cease to be true: it never was true. And if a Statement is true,
it cannot cease to be true. An unresolved logical contradiction, 1.e. two
true contradictory statements, is impossible.
As there is no logical contradiction between two conflicting norms,
there is no logical contradiction between the statements about the
validity of the two conflicting norms. The norms which are the object of
the two statements subsist side by side. But the facts which are the object
of two contradictory statements cannot coexist. It is between the
Statement that a certain norm is valid and the statement that this norm is
not valid that there is a logical contradiction. If one statement is true, the
other cannot be true. The validity of a norm is not analogous to the truth
of a statement, but to the existence of a fact, since the validity of a norm
is its—ideeZZ——existence.
§ VII Principle of Contradiction and Norms 217

VII. Is the Principle of Contradiction Applicable to Conflicts of

Norms by Analogy?

Thus the principle of contradiction cannot be applied to a conflict of

norms per analogiam, on the grounds of an alleged analogy between the
truth of a statement and the validity of a norm. But it is just this analogy
which Rose Rand presupposes when she claims that the axioms of
propositional logic, in particular the principle of contradiction, are
applicable to requirement--sentences:
The principle of contradiction is valid in the logic of requirements only per
analogiam. One cannot require that which is self-contradictory. One cannot say ‘Do
that, and do not do that’. The principle of contradiction can be expressed in the logic
of requirements thus: one cannot simultaneously require a command (positive
requirement-sentence) and a prohibition (negative requirement-sentence). The word
‘contradiction’ here does not refer to Opposing truth-values. (1939: 317)

But to what values does it refer?

There can be no doubt that the same person can ‘say’ ‘Do that’ and
‘Do not do that’, that he can posit a command and at the same time a
prohibition relating to the same behaviour, though admittedly not in
such a way that the commanding and the prohibiting are the meaning of
the same act of will, just as two contradictory statements cannot be the
meaning of the same act of thought. The sentence ‘I cannot will
opposites together’ (NOTE 150) is correct. But it only means that I cannot
will opposites in the same act of will. A person can command and forbid
something ‘together’, in the sense that he first performs an act of will, the
meaning of which is the command, and then another, whose meaning is
the prohibition, without repealing the previously issued command, that
is, he allows the meaning of the previous act of will to remain valid. A
person can think opposites together, in the sense that he first performs an
act of thought whose meaning is a certain statement, and then another
whose meaning is a statement contradicting the first one, without
repealing the meaning of the first act of thought, that is, he allows this
meaning to remain valid. Otherwise, the same person could not posit
conflicting norms (e.g. within a single Statute enacted by a single
legislator) or make conflicting statements (e.g. within a book written by
a single author), and there is no denying that conflicts of norms and
contradictions such as these do occur.
As far as the applicability of the principle of contradiction to a conflict of
norms is concerned, the question is whether the two conflicting norms,
the command and the prohibition, can both be valid together, just as the
question in propositional logic is whether two contradictory statements
can both be true together. If the principle of contradiction applies to the
two norms, then only one of them can be valid. The analogy which Rand
218 Principle of Contradiction and Norms ch. 57
presupposes can only be that between the truth of a statement and the
validity of a norm. Immediately after stating that when we speak of two
contradictory norms, the word ‘contradiction’ does not apply to
opposing truth—values, she says: ‘The principle of excluded middle,
carried over into the logic of requirements, signifies that either the
positive requirement or the negative requirement is valid, that there is no
third possibility. It does not mean that either the positive requirement or
the negative requirement is true.’ Here it is clear that the analogy Rand
has in mind is that between the validity of a norm and the truth of a
statement. But there is no such analogy. For if two norms conflict, both
can be valid. That is precisely when a conflict of norms occurs; and there
is no denying that this is possible. And if this analogy does not exist, then
the logical principle of contradiction is not applicable to norms by
analogy (NOTE 151).
Ilmar Tammelo also defends the view that a confliCt of norms
represents a logical contradiction. If there are two legal norms, one of
which attaches a certain consequence to a certain condition, and the
Other the opposite consequence to the same condition, then, says
Tammelo, ‘the legal consequences . . . are contradictory to each other’,
and ‘these rules are in contradiction with each other irreconcilably’
(1955: 300). Whence he concludes: ‘If we want to form a legal concept of
the rules described above, the result would be a notion with contradict—
ory determinants . . . which constitutes a reference that does not refer to
anything, and, as such, is meaningless.’ That is incorrect. Each of the two
norms makes sense, and the fact that they conflict (because they are both
valid) is no more ‘meaningless’ than the action of two opposing forces on
a single point. Their validity is juSt their—ideell—existence, and not
their truth. It is only two contradictory statements which are meaning—
less, and this is because only one of the two can be true, they cannot both
be true together. But two conflicting norms can both be valid. It is only
when both are valid that a conflict can exist. Tammelo thinks a conflict of
norms is meaningless, because of the erroneous assumption that two
conflicting norms represent a logical contradiction (NOTE 152).

VIII. No Analogy between the Truth of a Statement and the

Observance of a Norm

The attempt to prove that logical principles are applicable to norms with
the help of an analogy between the truth of a statement and the
observance ofa norm also fails to yield the desired result.
In his article cited in ch. 56 (1957), Frey tries to justify the
applicability of the principle of contradiction on the grounds that logical
principles are applicable to the two kinds of descriptive sentences
§ 1x Principle of Contradiction and Norms 219
which—he claims—correspond to an imperative. The first is the
statement that the imperative is observed, and the second the statement
that there occurs an act of which the imperative is the meaning.
This is how Frey characterizes the two different ways in which two
imperatives can be contradictories:
(1) Contradiction with respect to observability: the two imperatives are contradict-
ories if the two observance-sentences are contradictories, e.g. Shut the door!’ and
‘Do not shut the door!’. (2) Contradiction with respect to imperative existence: we
want to say that the two requirements are contradictories if the same thing is
simultaneously required and not required, e. g. I. requires that K. shut the door’ and
‘I. does not require that K. shut the door.
First, concerning what Frey calls ‘contradiction with respect to
imperative existence’, it is clear that we do not even have two
imperatives, and so there can be no question of a contradiction. If the
sentence ‘1. requires that K. shut the door’ is the correlate of the
imperative ‘K. , shut the door!’, then the sentence ‘I. does not require that
K. shut the door’ cannot be the correlate of any imperative. For if ‘I. does
not require that K. shut the door, there is no act of commanding and
hence no meaning of an act of commanding either, i.e. no imperative.
Concerning the contradiction between two imperatives which Frey calls
‘contradiction with respect to observability’, it is true that there exists a
logical contradiction between the two statements ‘K. shuts the door’ and
‘K. does not shut the door.’ But, as was indicated before, there is no logical
contradiction between the two imperatives ‘Shut the door’ and ‘Do not shut
the door.’ Consequently, from the fact that the two imperatives cannot
both be observed by the same person at the same time, it does not follow
that there exists between the two imperatives that relation which logic calls
‘contradiction’, or even only some other relation analogous to logical
contradiction.

IX. Truth is a Property of a Statement, but Observance is not a

Property of a Norm

Truth is a property of a statement, as was emphasized before. A

Statement is true if it agrees with the facts about which it states
something, that is, if it affirms a state of affairs which exists. The
statement ‘God exists’ is true if God exists. Truth is a property not of
this fact, but of the statement. The observance of a norm is a property
not of the norm, but of a certain factual behaviour, and thus of a fact.
This behaviour constitutes observance of a norm—it has the property of
being the observance of a norm—if it agrees with a norm which decrees
this behaviour to be obligatory. To be more exact: if the modally
indifferent substrate of the behaviour stated to exist matches the modally
indifferent substrate decreed to be obligatory by the norm. The
220 Principle of Contradiction and Norms ch. 57
statement that the norm ‘Schulze the thief is to be punished’ is observed
means that there actually occurs a behaviour which conStitutes the
punishing of Schulze the thief. When behaviour constitutes compliance
with a norm, it is then said to be ‘good’, ‘right’, ‘legal’. These words are
synonymous with ‘complying with a norm’. We cannOt say that it is the
norm which is ‘good’ or ‘right’ or ‘legal’ because it is observed. The
judgment that something is ‘good’ or ‘right’ or ‘legal’ is a value—
judgment. This value—judgment states a property of the actual behaviour,
not of the norm with which the behaviour agrees. The opposite of the
truth of a statement is its falsity, and this is similarly the property of a
statement. The opposite of the observance of a norm is its ‘Violation’.
This is clearly not a property of the norm, but that of the actual
behaviour which is the direct opposite of the behaviour decreed to be
obligatory in the norm. The violation of the norm ‘Love thy enemy
Schulze’ addressed to Meier consists in Meier’s hating his enemy Schulze
rather than loving him. It is true that we say ‘The norm is violated’ as we
say ‘The norm is observed’; but we cannot perceive the being—violated or
the being—observed in the norm: the norm is not affected if it is violated
or observed. But if the statement ‘Socrates is immortal’ is false, this
falsity is a property of the statement and not of any fact, such as the fact
that human beings die. There is thus no analogy between the truth (or
falsity) of a Statement and the observance (or Violation) of a norm, for
observance and violation are not properties of the norm as truth and
falsity are properties of the statement.
Furthermore, the same statement, such as ‘Socrates is mortal’, cannot
be both true and false. It is either true or false. On the Other hand, the
same norm can be bOth observed and violated. A father commands his
son Paul: ‘Go to church every Sunday.’ (The general hypothetical
command is ‘If it is Sunday, go to church.’) Or ‘whenever you meet one
of your teachers on the street, greet him.’ Paul can observe this command
on one Sunday, and violate it on another. On one occasion Paul can greet
one of his teachers when he meets him, and the next time not greet him—
because the teacher reprimanded him for some reason or other. That is
even more obvious when we consider general norms and their—
mediate—observance or violation. For it is obvious that a general norm
can be observed by one person and violated by another, and indeed
observed once and violated another time by the same person. But the
universal statement ‘All men are mortal’ cannot be true for one man and
false for another.

X. Immediate and Mediate Observance of Norms

Only an unconditional (categorical) norm can be observed or violated

immediately; a conditional (hypothetical) norm cannot, for as long as the
§x Principle of Contradiction and Norms 221
condition is not fulfilled, there can be no question of observance or
violation. The general norm ‘If a person commits theft, he is to be
punished’ can be observed or violated only if some person has in fact
committed theft. And the—conditional—individual norm in a judicial
decision ‘Maier, who stole a horse from Schulze, is to be imprisoned for
six months if he commits another punishable delict in the next three
years’ can be observed or violated only if Maier commits another
punishable delict in the next three years. But the difference between
categorical and hypothetical statements has no bearing on their property
of being true or false. The statement ‘Paul has a sunstroke’ can be )USt as
true or false as the statement ‘If Paul sits bareheaded 1n the sun for too
long, he will suffer a sunstroke.’
Furthermore, a conflict of norms can be resolved not only for all the
cases to which the two conflicting general norms are relevant, but also
for a concrete case only. A general norm is always hypothetical. If the
validity of a norm consists in the fact that it ought to be observed, and if
not observed, then applied, a general (and thus conditional) norm is valid
only mediately, namely through the intermediary of the corresponding
unconditional individual norm which the individual belonging to the
class specified in the general norm addresses to himself, that is, only if he
recognizes the general norm. Should he fail to posit this individual norm,
should he not recognize the validity of the general norm, then this
general norm is valid for this individual only to the extent that it is
applied to his behaviour by other individuals, that is, that Other
individuals address a corresponding individual norm to him, an act
which presupposes the recognition of the general norm by these other
individuals and therefore the positing of a corresponding individual
norm. If in a concrete case, a court of last instance does not recognize a
general norm posited by the legislator attaching an abstractly specified
sanction to an abstractly specified state of affairs, that is, if the court
ascertains the existence of a concrete State of affairs subsumable under
the state of affairs specified abstractly in the general norm and yet does
not posit an individual norm corresponding to the general norm, but
rather decides that no sanction is to be imposed—in other words,
dismisses the plaintiff’s claim or acquits the accused—and if this decision
has become res judicata, then the general legal norm is not valid for this
concrete case. But it remains valid—mediately—for other cases.
If a statute contains two conflicting general norms and if a court
decides a concrete case by applying one of these norms, and if this
decision—i.e. the individual norm—becomes res judicata, then it is true
that the conflict of norms is resolved for this concrete case; but it remains
in existence at the level of the general norms, i.e. between the two general
norms contained in the statute. The same is true if a general legal norm
specifies the state of affairs which is the condition for the sanction in
such an ambiguous way that two opposite interpretations are possible.
222 Principle of Contradiction and Norms ch. 57
Then the situation is the same as that in which two conflicting general
norms are valid. And the case of a conflict between a general legal norm
and a general moral norm is no different. If a man kills another man in a
duel because he committed adultery with the first man’s wife, and a jury
acquits the accused because the members of the jury consider his
behaviour to be morally justified even though the criminal code is
unambiguous in not considering such a case to be an exception to the
general legal norm requiring the death penalty or imprisonment for
intentional homicide, and the decision of acquittal becomes res judicata,
then the confliCt between positive law and the moral order to which the
jury are subject is resolved in this concrete case in favour of the moral
order. But the mediate validity of the general legal norm is not thereby
repealed; and consequently neither is the conflict. For another court can
recognize this general legal norm in a similar case. Thus a general legal
norm can be valid—mediately—in one case and not in another, similar
case. But a general statement cannot be true in one case and false in
another, similar case. If the statement that a metal expands when heated
is true, then it must be true in all cases of heating a metal, and cannOt be
true in one case and false in another, similar case (NOTE 153).

XI. The Applicability of the Principle of Contradiction to Statements

about the Observance of a Norm

The assumption that there is an analogy between the truth of a statement

and the observance of a norm is clearly based on the fact that the same
person cannot by the same act simultaneously observe and violate the
same norm, and that consquently when two norms conflict—say
‘Human beings are never to kill other human beings’ and ‘Human beings
are to kill other human beings in war or in carrying out a death
sentence’—a single act of a single person can observe or violate only one
of the two conflicting norms. Should he observe the first, he violates the
other; should he observe the second, he violates the first. But the
impossibility of complying with both norms is limited to the duration of
the act by which he observes the first norm. It is possible for a person to
refuse on one occasion to kill enemies in war, because he wants to
observe the first norm, and on another occasion observe the second
norm and kill enemies in war, and so violate the first norm. Or a mother
orders her son ‘Go to church on Sunday’ and the boy’s father orders him
‘Do not go to church on Sunday.’ On one occasion the son can observe
his father’s command and violate his mother’s command, and on
another occasion violate his father’s command and observe his mother’s.
NOthing analogous to this is possible in the case of a contradiction
between two universal statements such as ‘Human beings are mortal’ and
§ XII Principle of Contradiction and Norms 223
‘Human beings are not mortal.’ The incompatibility between the truth of
the two statements is not limited like that between the observance of the
two norms, for instance, to the duration of the act of which one of the
two statements is the meaning.
The fact that in the case of a conflict of norms the observance of one
norm implies the violation of the other therefore does not represent an
application—even an analogical application—of the principle of contra—
diction to conflicting norms. But this principle is applicable to
statements about the observance of norms. If 1t is true that a norm which
commands a certain behaviour is observed by a certain act of a certain
person, it must be false that it is not observed by this act of this person,
and therefore also false that the other, conflicting, norm which forbids
the behaviour commanded by the first is observed by this act. For this
would mean that the first is nOt observed. Therefore, the fact that the
logical principle of contradiction is applicable to statements about the
observance of conflicting norms does not entail that it is applicable to
the conflicting norms themselves.

XII. No Logical Contradiction between Statements about the

Validity of Two Conflicting Norms

It must be emphasized again and again that a norm must be distinguished

from a statement about a norm, that is, a statement about the validity of a
norm. Like all statements, statements about the validity of a norm are
true or false. The statement about the validity of a norm is true if the
norm is valid, and it is valid if it is the meaning of an am of will. The
statement about the validity of a norm is not the same as a statement
about the occurrence of the act of will of which the norm is the meaning.
The two statements must be distinguished. But the statement about the
validity of a norm is true only if the Statement about the occurrence of
the act of will of which it is the meaning is true. Since statements about
the validity of norms can be true or false, the principles of logic are
applicable to them.
As far as the principle of contradiction is concerned, it is clearly
applicable to two statements one of which asserts the validity of a norm,
and the other its non-validity. If one is true, i.e. if the norm is valid, then
the other—that the norm is not valid—cannOt be true. They cannOt both
be true, and they cannot both be false. Thus the principle of
contradiction is applicable. The opposition between the two statements
is a contradiction.
Since two conflicting norms can both be valid—otherwise there would
be no conflict—the statements about the validity of the two norms do
not represent a logical contradiction, even if one of the norms decrees a
224 Principle of Contradiction and Norms ch. 57
certain behaviour to be obligatory and the other the omission of this
behaviour. The sentences asserting the validity of the two norms ‘A
ought to be’ and ‘Non-A ought to be’ do not represent a logical
contradiction, for both are true since both norms are valid. Nor is it
possible for the opposition between two statements about the validity of
norms to be one of contrariety, so that if one is true the other muSt be
false, though both may be false since there exists a third possibility and
thus the principle of excluded middle is not applicable, as in the case of
two statements relating to an apple—(1) ‘Here is a green apple’ and (2)
‘Here is a yellow apple’—when the apple is red or there is no apple at all.
There are no statements about the validity of norms analogous to these
statements. The two following, statements about the validity of norms
seem to be such analogues, but they are not: (1) ‘The norm “Adultery is
to be punished by a fine” is valid’, or expressed in a descriptive sollen—
sentence ‘Adultery is to be punished by a fine’; and (2) ‘The norm
“Adultery is to be punished by imprisonment” is valid’, or expressed in a
descriptive soilen-sentence ‘Adultery is to be punished by imprisonment.’
If one of the two earlier statements ‘Here is a green apple’ and ‘Here is a
yellow apple’ is true the other muSt be false, but both can be false if the
apple is red or there is no apple at all: the opposition is one of
contrariety, not contradiction. But in the case of the Statements about the
two norms, if one of them is true, the other need not be false. Both can
be true since both norms can be valid, that is, a conflict of norms can
exist. Admittedly both can be false, since the valid norm may be
‘Adultery is to be punished only with censure by the court’ or ‘Adultery
is not to be punished’, or there may be no valid norm at all concerning
adultery. But since it is not necessary for one statement to be false when
the other is true, since a conflict of norms can exist, there exists between
the two Statements neither an opposition of contrariety nor one of
contradiction.
From this it follows that there exists no logical contradiction between
statements about the validity of two conflicting norms, just as there is
none between the two conflicting norms ‘Adultery is to be punished’ and
‘Adultery is not to be punished.’ Both norms decree some behaviour to
be obligatory: in one case ‘being—punished’, in the other ‘not-being—
punished’. Both norms can be valid together: this means that since
validity is the existence of a norm, both norms can exist together. Two
statements, one of which asserts the validity of one of the valid norms,
and the other the validity of the Other, are accordingly both true, and do
not represent a logical contradiction (NOTE 154).
§ XIV Principle of Contradiction and Norms 225
X111. A Derogating Norm Repeals Another Norm: It Does not
Conflict with it

Statements about the validity of two conflicting norms must be

distinguished from statements about the validity of two norms, one of
which decrees a certain behaviour to be obligatory while the other
decrees that this behaviour is not obligatory, such as in the case of a
norm and a derogating norm repealing the validity of the first norm. If
the firSt norm decrees the Ought of behaving in a certain way, the Other
norm—the derogating norm—does not decree the Ought of not
behaving in this way, but rather the non—Ought of behaving in this way.
If the second norm is valid, the first cannot be valid, for its validity is
repealed by the second norm. Consequently two statements asserting the
validity of these two norms are logically contradictory since only one of
the two statements can be true. If the first is true, the other is false. But
the two norms themselves do not stand in a relation of contradiction, or
any analogous relation. For it belongs to the essence of a logical
contradiction that there must exist two statements one of which is true
and the other false: but these two statements must exist, for only an
existing statement can be true or false. The false Statement exists just as
much as the true statement; but a norm which has lost its validity in
virtue of a derogating norm no longer exists. There do not exist two
conflicting norms corresponding to the two contradictory statements:
there is only one norm—the derogating norm—since the Other no
longer exists. Such is the consequence of the fact that truth and falsity are
the properties of exiSting statements, while validity is not the property of
a norm, but rather its specific existence: an invalid norm, a non—existent
norm, is no norm at all.

XIV. No Resolution of a Conflict of Norms by Interpretation

Connected with the erroneous belief that the principle of contradiction is

applicable to a conflict of norms is the view that a conflict of norms,
especially of legal norms, has to be resolved by way of interpretation.
Since the interpretation of legal norms is legal cognition and legal
cognition cannot repeal the validity of legal norms any more than it can
create legal norms (i.e. make them valid), interpretation cannot resolve
conflicts of norms. All a law—applying organ can do in the event of a
conflict between two general legal norms is choose by an act of will to
apply one of the two norms; but the conflict between the two general
legal norms remains (NOTE 155).
 58
The Application of the Rule of
Inference to Narms
The question to be discussed in this chapter is whether the syllogism of
traditional propositional logic is applicable—directly or indirectly—to
norms.

I. The Syllogism and the Relation between a General and an

Individual Norm

The question is whether the logical thought—process of the syllogism

occurs in morality and 1n law, that 1s, in the process of creating and
applying morality and law, and nOt whether it occurs in moral science
and legal science. The latter 1s beyond question (it is obvious), since
inferences have their place in all thought—processes, and thus in all
sciences, and so in moral and legal science. But the extremely frequent
confusion of morality and moral science and of law and legal science,
which we mentioned previously, obscures the problem and prevents a
clear answer being given to the question we are now considering (NOTE
156).
Specifically, the question is whether the relation between a general moral
or legal norm and the individual norm by which it is applied to a
concrete case has the charaCter of a logical inference, that is, whether the
validity of this individual norm is the result of a logical inference.

II. The Individual Norm as an Act in the Process of Law-creation

If this individual legal norm represents the judicial decision in a concrete

case, then this decision—as the Pure Theory of Law has shown—is not
only application of law but also creation of law, the continuation of the
process of law—creation which takes place in the process of legislation (or
custom). It is an act of individualization of the general legal norm to be
applied. And this individualization is necessary, for a concrete case
cannot be decided by a general legal norm alone.
§ 111 Rule of Inference and Norms 227
III. ‘Gaps in the Law’

The preceding lines presuppose that a positive moral or legal order requires
that the only norms which are to be applied are the materially
determinate general norms of this order. But this need not be true of a
positive legal order.
It 1s indeed true, if positive law requires the law--applying organ—in
particular the judge—to decide not to react with a coercive act to the
concrete state of affairs he finds (i.e. to dismiss the plaintiff’ s claim or
acquit the accused) in the following circumstances: if this concrete state
of affairs, in the view of the law—applying organ, cannot be subsumed
under the state of affairs abstractly specified in a general norm; or if no
general norm created by legislation or custom and attaching an abstractly
specified legal consequence to an abstractly specified state of affairs
concerns the concrete state of affairs found by the law—applying organ; in
brief, if—as it is commonly said—there is a gap in the law. If this term
means that the valid legal system cannot be applied to this case, then
there can be no gaps in this sense (as has been established earlier, ch. 31).
For if the judge in the case has to dismiss the plaintiff’s claim or acquit
the accused, and thus posit an individual norm to the effect that no
coercive act is to be imposed as a sanction on the defendant or accused,
this constitutues an application of valid law. (This remark disregards the
consequences of the principle of res judicata to be discussed later )
But a positive legal system can also stipulate that 1n the event that no
valid general legal norm created by legislation or custom concerns the
state of affairs found by the law—applying organ, then it has discretion to
decide the case, that is, it can decide the case according to a general norm
it considers just. The positive legal order can even empower the law—
applying organ to apply an applicable positive general legal norm to a
concrete case only when the organ considers its application to this case to
be just. It is only if we assume such a conferral of power that we can say
that the duty of a judge is to come to a ‘just’ decision. Laymen, and
sometimes also jurists (NOTE 157), claim that such is generally a judge’s
duty: they thereby assume that universally valid justice exists and that 1t
is possible to give an unambiguous answer to the question as to what 1s
just in a concrete case. But that 1s a fundamental error, for there exist, not
one, but many different conflicring conceptions of justice.1 The only
justice relevant here is that which the judge having jurisdiction to decide
1 Cf. my article ‘What is JuStice?’ (1957, 1973). The argument that a legal system in which
courts are strictly bound by the materially determinate general legal norms, and so may not
decide cases according to their discretion (i.e. according to what they consider just or useful), is
a hindrance to progress in the development of the law is questionable for the reason that the
concept of ‘progress’ implies a highly subjeCtive value-judgment, and consequently what
appears as progress from one point of view—for instance, that of a socialist—can be considered
to be quite the opposite from another point of view—for instance, that of a liberal.
228 Rule of Inference and Norms ch. 58

the case considers just: it can be very different from that which another
judge considers just. If judges are empowered to decide cases ‘justly’,
that is, according to principles they consider just, that means that the
validity of general legal norms created by legislation and custom is
superfluous. The view advanced by some people that all law consists in
court decisions is perhaps connected with the belief that the duty of the
courts is to realize justice—something which is n0t true of most legal
orders. Thus Plato, in whose ideal state judges were to decide cases
according to justice, required———quite consistently—that they not be
constrained by any general positive legal norms.

IV. The Power to ‘Fill Gaps’

But even if positive law empowers judges to decide cases according to

juStice, the judicial decision is an application of valid positive law,
because it is empowered by the law; and the postulate of legal positivism,
that each concrete case is to be decided on the basis of—i.e. by
applying—valid positive law, is maintained (NOTE 158). But then the
legal—political requirement of Legal Certainty, that is, that a person be
able to foresee the judicial decision with some likelihood and so direct
his behaviour accordingly, is given up to all effects and purposes. In such
a case, the question of a logical inference from a general, materially
determinate, positive legal norm does not arise; but there still remains
the question of a logical inference from the general norm presupposed as
just by the law—applying organ, which, though not a norm of positive
law, the law- applying organ is nevertheless empowered by positive law
to apply.

V. The Theoretical Syllogism

The syllogism of propositional logic, the so-called theoretical syllogism,

is a sequence of statements, in which the truth of the meaning—content
expressed linguistically in one statement—the conclusion—is inferred
from the truth of the meaning~contents expressed linguistically in two
other statements—the major and minor premisses. We are concerned
here particularly with the inference from the universal to the particular,
more precisely from the truth of a general statement to that of an
individual statement. The usual example is: All humans are mortal;
Socrates is human; Socrates is mortal. More correctly:
1. If a being is human, then it is mortal.
2. Socrates is human.
3. Socrates is mortal.
§ VI Rule of Inference and Norms 229
The second sentence, the minor premiss, is the Statement that the
condition specified generally 1n the first sentence (the major premiss)
obtains individually. The truth of the third sentence, the conclusion, is
implicit 1n the truth of sentences 1 and 2 (the two premisses).
Presented in this form, the syllogism is a mediate inference. Simplified,
it can be presented as an immediate inference:
All human beings are mortal.
The human being Socrates is mortal.
It should be nOted that logic does not claim that all humans are mortal
and that therefore Socrates is mortal, but rather that if it is true that all
humans are mortal, then it is true that Socrates is mortal. Whether it is
true that all humans are mortal is something to be determined by some
Other science than logic. Expressed in general terms, the rule of inference
states: If the premisses are true and if the conclusion 1s implicit 1n the
premisses, then the conclusion 1s true. 2To say that the truth of the
conclusion 1s ‘inferred’ from that of the premisses is simply to say that
the truth of the conclusion 13 implicit 1n that of the premisses.

VI. The Truth of a Statement is not Conditional upon the Act of

Stating

Statements are the meaning of acts of thought. But the truth of a

statement is not conditional upon the existence of an actual act of
thought. The meaning a statement—sentence expresses is true or false
whether or not there occurs an act of thought with this meaning. The
Statement ‘The earth revolves around the sun’ is true—if it is true—
whether or not anyone actually thinks it or utters it. It did not become
true when Copernicus first thought and uttered it, but it was already true
beforehand, and—if true—always will be true. A statement must be
thought and uttered not in order for it to be true, but in order for it to be
able to be judged true or false. The principles of logic are not concerned
with acts of thought (as are the propositions of psychology), but with the
meaning of acts of thought: not with the thinking, but with the thought,
that is, not with the meaning of actual acts of thought, but with the
meaning of possible acts of thought whether they occur in reality or not.
And whether they are about past events or about future events. The
difference between past and future events may be important from a
psychological viewpoint, inasmuch as future events cannot be predicted
with certainty. But it is irrelevant from a logical viewpoint, for logic
merely states: If 1t is true that 1n the future all human beings will be

2 Stebbing (1957: 159): ‘We can know our conclusions to be true only when we know both
that the premisses are true and that they imply the conclusion.’
230 Rule of Inference and Norms ch. 58
mortal and if in the future there will live a human being called Socrates,
then it is true that this human being also will be mortal.

VII. An Inference is not a Thought-process Leading to a New Truth

Since the conclusion is true only if its meaning is contained in that of the
premisses, an inference is not a thought—process which leads to a new
truth; rather, it makes explicit a truth already implicit in the truth of the
premisses. John Stuart Mill drew attention to this (1898: 120) He asked
‘whether the syllogistic process, that of reasoning from generals to
particulars, is, or is not, a process of inference, a process from the known
to the unknown, a means of coming to a knowledge of something which
we did not know before’. His answer is that the syllogism is not such a
thought-process. ‘It is universally allowed that a syllogism is vicious if
there be anything more in the conclusion than was assumed in the
premises. But this is, in fact, to say that nothing ever was, or can be,
proved by syllogism which was not known, or assumed to be known
before.’ Thus Mill arrives at the conclusion.
that in every syllogism, considered as an argument to prove the conclusion, there is a
petitio principii. When we say: All men are mortal, Socrates is a man, therefore
Socrates is mortal, . . . the proposition ‘Socrates is mortal’ is presupposed in the more
general assumption ‘All men are mortal’: that we cannot be assured of the mortality
of all men, unless we are already certain of the mortality of every individual man.
This means that the conclusion of a theoretical syllogism does not
represent a new truth, i.e. any truth that was not already implicit in the
premisses. In other words: the truth of the universal statement ‘All
humans are mortal’ is not prior in time to the truth of the individual
statement ‘Socrates is mortal.’ The individual statement is already true if
the general statement is true. This is of significance—as we shall see—
when the so-called normative syllogism is to be compared to the
theoretical.
It is important not to misinterpret the logical rule of inference in a
psychological way. The rule does not mean that if the premisses ‘All
humans are mortal’ and ‘Socrates 1s human’ are presupposed, then we
must necessarily arrive at an act of thought whose meaning is ‘Socrates 1s
mortal’, or that a person who wants to assert the true statement ‘All
humans are mortal’ must already know that there exists, has existed, or
will exist a human being called Socrates who is mortal. For logic is not
concerned with aetual acts of thought, but with the meaning of possible
acts of thought. Logic says: if it is true that all humans are mortal, and if
it is true that Socrates is human, then it is true that Socrates is mortal,
whether or not anyone performs the acts of thought of which the
premisses and the conclusion are the meaning. The syllogism which leads
§ VIII Rule of Inference and Norms 231
from the general truth ‘All humans are mortal’ to the individual truth
‘Socrates is mortal’ rests on the fact that logically the individual is
implicit in the general. The conclusion is a logical consequence. But a
logical consequence does not have the power of bringing about a mental
event corresponding to it.3 Human beings can think illogically and
frequently do so.
In order to arrive at the individual truth ‘Socrates is mortal’ from the
general truth ‘All humans are mortal’, there is thus no need for an actual
act of thought of which this individual statement is the meaning, distinct
from, or implicit in, the actual act of thought of which the general
Statement is the meaning. The truth ‘Socrates is mortal’ can therefore be
implicit in the truth ‘All humans are mortal’, because no act of thought
of which the individual statement is the meaning need intervene between
the meaning expressed by the general Statement and that expressed by
the individual statement. This too is of significance for the question
whether there exists a normative syllogism analogous to the theoretical
syllogism (NOTE 159).

VIII. The Supposedly Normative Syllogism

A ‘normntive inference from the general to the particular’ is an inference

whose major premiss is a general hypothetical norm which decrees some
generally specified behaviour to be obligatory under generally specified
conditions, whose minor premiss is a statement asserting the individual
existence of the condition specified 1n the major premiss, and whose
conclusion is an individual norm which decrees individually that the
behaviour specified generally in the major premiss is obligatory. That
means that the individual norm corresponds to the general norm. For
example:
1. If someone makes a promise, he is to keep it.
2. Maier promised Schulze to pay him 1,000.
3. Maier is to keep his promise to Schulze, i.e. pay him 1,000.
We should first point out certain differences between the theoretical
syllogism ‘All humans are mortal; Socrates is human; therefore Socrates
is mortal’ and our example of a supposedly normative syllogism. The
theoretical syllogism above corresponds to the following general
schema:
If a being has property x, it also has property 3/;
3 Sigwart says: ‘In order to quench my thirst with a glass of water, I must extend my arm,
Open my hand to graSp the glass, curve my fingers around the glass to hold it, carry it to my
mouth, tip it, and make sipping and swallowing motions, each of these steps is a particular
morion or rather a group of motions This sequence follows mentally by logical consequence
from the goal of quenching my thirst; but the logical consequence does not have the power to
cause it to happen’ (1889: 199f..)
232 Rule of Inference and Norms ch. 58

Being X has property x;

Therefore, being X also has property 3/;
Socrates has the property ‘human’;
Therefore Socrates also has the property ‘mortal’.
The two premisses have the same logical character: both are
statements. In a supposedly normative syllogism, on the other hand, the
two premisses have different logical characters: the major premiss is a
general norm, while the minor premiss is a statement (NOTE 160).
There is another reason why our example of a supposedly normative
syllogism does not fit the general schema of a theoretical syllogism The
fact that a person made a promise is not a property of that person.
Furthermore, ‘that he 13 to keep the promise’ is not a property of his, but
rather a norm or a statement about a norm. The same is true of the
example ‘If a person lies, he deserves to be criticized; Maier lied;
therefore Maier deserves to be criticized.’ If a person lies once, he does
not yet have the property of being a liar: it is only when he is accustomed
to lying that he is a ‘liar’. Now, while ‘being—a-liar’ can be considered a
property of a person, it is only from the grammatical point of view that
‘being-deserving-of—criticism’ is a pioperty of the person who lies once
or is accustomed to lying. ‘—To be——deserving-of—criticism’ means that the
person is to be criticized. But that 13 either a norm or a statement about a
norm; not a statement about the property of a person, but about the
existence of a norm which is to be applied to that person.

IX. The Validity of the Individual Norm is not Implicit in the

Validity of the General Norm to which it Corresponds

The example above was a sequence of three sentences:

1. If someone makes a promise, he is to keep it;
2. Maier promised Schulze to pay him 1,000;
3. Maier is to keep his promise to Schulze, i.e. pay him 1,000.
If this sequence is a syllogism, then the validity of individual norm 3
muSt follow logically from the validity of general norm 1 and the truth of
Statement 2. That means that the validity of individual norm 3 must be
implicit in the validity of general norm 1 and the truth of statement 2.
Expressed more simply—i.e. as an immediate inference—the syllo-
gism reads:
1. If someone makes a promise, he is to keep it.
2. Maier is to keep his promise to Schulze to pay him 1,000,
i.e. Maier is to pay Schulze 1,000.
It should be noted that general norm 1 is a hypothetical—i.e. a
conditional—norm, and that individual norm 2 is a categorical—i.e. an
§x Rule of Inference and Norms 233

unconditional—norm (at least as far as the condition specified generally

in the general norm is concerned). For the individual norm becomes
valid only after the individual existence of the condition specified
generally in the general norm has been established An inference from
the validity of the general norm to that of the individual norm is possible
if the validity of individual norm 2 1s implicit 1n that of general norm 1,
just as the truth of the individual statement ‘Socrates 1s mortal’ is implicit
in the general statement ‘All humans are mortal.’ That presupposes that
there is an analogy between the truth of a statement and the validity of a
norm. It has already been shown that there 1s no such analogy (cf. ch.
44). Truth and falsity are properties of a statement; validity 13 not a
property of a norm, but 1ts existence. Just as the existence of a fact cannot
follow logically from that of another fact—the ways of thought are not
the ways of existence4—so the existence of a norm, i.e. its validity,
cannot follow logically from the existence of another norm, i.e. from its
validity.

X. The Validity of a Norm is Conditional upon the Act of Will

whose Meaning it is

The validity of the individual norm—represented as the conclusion of

the so-—called normative syllogism—cannot be implicit in the validity of
the general norm represented as the major premiss and 1n the truth of the
statement represented as the minor premiss.
In the first place, the general norm serving as major premiss is a
conditional norm and the individual norm serving as conclusion an
unconditional norm (with respect to the condition specified generally in
the general norm), and an unconditional norm cannot be implicit in a
conditional norm. The act of will of which a conditionally valid norm is
the meaning is essentially different from an act of will of which an
unconditionally valid norm is the meaning.
Furthermore, the validity of a norm, which is neither true nor false,
cannot be implicit in the truth of a statement. A norm, which is neither
true nor false, cannot be implicit in a statement which is true.
But above all, the validity of the individual norm cannot be implicit in
the validity of the general norm and the truth of the statement, because
the validity of a norm is conditional upon the act of will of which it is the
meaning, while the truth of the individual statement in a theoretical
syllogism can be implicit in the truth of the general statement, since the
4 Hans Vaihinger insists ‘that the ways of thought are different from those of reality’ (1935:
8), and comments: ‘The Hegelian system offers historically the most glaring and typical
example of this general error of phi1030phy: the confusion of thought——processes with events.
234 Rule of Inference and Norms ch. 58
truth of a statement is not conditional upon the act of thought of which it
is the meaning (NOTE 161). Since an act of will of which the individual
norm is the meaning must intervene between the validity of the general
norm and that of the corresponding individual norm, the validity of the
individual norm cannot follow logically—i.e. by a thought-process—as
the truth of an individual statement follows from that of the correspond—
ing general statement. The relation between the general norm and the
corresponding individual norm is not an immediate relation: it is only a
mediate relation, mediated by the act of will of which the individual
norm is the meaning. That is why it is impossible for the validity of the
individual norm to result from the validity of 'the general norm by means
of a logical inference.
The fact that the validity of a norm is conditional upon the act of will
of which it is the meaning constitutes its positivity; and the problem we
are concerned with 1s that of the applicability of a logical principle to
positive moral and legal norms. No 1mperative without an imperator, no
norm without a norm-positing authority, that 1s, no norm without an act
of will of which it is the meaning (NOTE 162).

XI. Merely ‘Thought’ Norms: Fictitious Norms

To that, one might object that there can be norms which are not the
meaning of acts of will, but of acts of thought: i.e. soilen—sentences which
are the meaning of acts of thought rather than of will, and yet are not
statements about the validity of norms, but rather norms themselves,
since a person can think of a norm (or anything whatsoever) that does
not really exist. The meaning expressed 1n a sentence that asserts that
people are to behave 1n a certain manner is a norm even if it is not
necessarily a positive norm, that 1s, the meaning of a real act of will. I can
think ‘All human beings are to be treated equally’ without myself
wanting all human beings to be treated equally and without anyone else
performing the act of will which has this meaning.
But if I think of something—say, a fir tree—that does not really exist,
I think of this object as existing, I think of something—in this case, a fir
tree—as if it existed, even though I know that it does not. I pretend that
it exists. A merely thought norm is the meaning of a fictitious act of will.
If I merely thin/e ‘All human beings are to be treated equally’, I think it as
if it were the meaning of an act of will, even though I know that such an
act of will did not occur. Merely thought norms are not positive norms,
but norms which a person pretends are valid; they are norms which are
the meaning of fictitious, not real, acts of will. If a norm is merely
thought, there must also be thought along with it an act of will of which
it is the meaning. A merely thought norm is the meaning of a merely
thought act of will, and nm a real one (NOTE 163).
§ x11 Rule of Inference and Norms 235
The fact that a merely thought norm is a fictitious and not a positive
norm does not therefore imply any qualification of the principle ‘No
norm without an act of will of which it is the meaning.’ The only
qualification this principle suffers is the fact that the Ought which is the
meaning of the act of will about the behaviour of another person—i.e. the
norm—is valid—i.e. exists—even after the act of will of which it is the
meaning no longer exists; and the existence of an act of will is, by its very
nature, limited to the short period of time it is being performed. Indeed,
the validity of a norm is normally specified only for the time following
the performance of the act of will; but a norm can also be valid for the
time preceding the performance of the act of will of which it is the
meaning (i.e. retroactively). This is particularly clear in the case of
the legislator’s act of will, the meaning of which is a general legal norm.
The existence of the Ought, the validity of the norm, does not coincide
with the existence of the act of will of which the Ought is the meaning.
Thinking and willing are two different mental functions and their
difference consists precisely in this: that the meaning of the former is a
statement, while that of the latter—when it is about the behaviour of
another—is an Ought, a norm. An act of thought can be connected with
an act of will; indeed this usually is the case, since a person must know
what he wills. But this act of thought precedes the act of will; it is not
identical with it or implicit in it (cf. ch. 9. II).

XII. The Act of Will of which the Individual Norm is the Meaning is
not Implicit in the Act of Will of which the General Norm is the
Meaning

As was noted earlier, the theoretical syllogism whose major premiss is a

general statement and whose conclusion is an individual statement
corresponding to the general statement does not lead to an act of thought
of which the individual statement is the meaning. A fortiori, the
supposedly normative syllogism, whose major premiss is a general norm
and whose conclusion 1s an individual norm corresponding to the general
norm, cannot lead to an act of will of which the individual norm is the
meaning.
In order to be valid, the positive individual norm ‘Maier is to keep his
promise to Schulze to pay him 1,000’ must—like any other positive
norm—be the meaning of a real act of will distinct from the real act of
will whose meaning is the general norm to which the individual norm cor-
responds (cf. above, section x). The validity of this individual norm could
be implicit in the validity of the general norm ‘If a person makes a promise,
he is to keep it’ only if the act of will of which the individual norm is the
meaning were also implicit in the act of will of which the general norm is
the meaning. But that is nm the case. In this respect there is a
236 Rule of Inference and Norms ch. 58

fundamental difference between the truth of a statement and the validity

of a norm. Even though a person cannot make the general statement ‘All
human beings are mortal’ with a claim to truth before knowing that
Socrates is mortal, this does not prevent the truth of the individual
statement ‘Socrates is mortal’ from being implicit in the truth of the
general statement ‘All human beings are mortal.’ For in propositional
logic—as was n0ted earlier—it is not. the act of thought of which the
statement is the meaning which matters. Therefore we are not concerned
with whether the act of thought of which the individual statement is the
meaning is implicit in the act of thought of which the general statement is
the meaning. But when we are dealing with valid positive norms, we
must keep in mind that the validity of a positive norm is conditional
upon the act of will of which it is the meaning. But the act of will of
which the individual norm is the meaning cannot be implicit in the act of
will of which the general norm is the meaning, as they are two wholly
different acts of will. Nevertheless, some people do consider valid a
normative syllogism such as:
1. If the general norm ‘All people are to keep their promises’
is valid;
2. and if it is true that Maier promised Schulze to pay him
1,000;
3. then the individual norm ‘Maier is to keep his promise to
Schulze, i.e. pay him 1,000’ is valid.
But the authority which posits the general norm, that is, which wills
that all people are to keep their promises, cannot will that Maier is to
keep his promise to Schulze to pay him 1,000, since it cannot know
beforehand that at some point in the future someone called Maier will
promise someone called Schulze to pay him 1,000. A person cannot will
that of which he knows nOthing (NOTE 164).

XIII. Recognition of General Norms and Positing of Individual

Norms

If the individual norm is not implicit in the corresponding general norm,

but exists only if it is posited as the meaning of an act of will, and if an act
of will cannOt be the result of a thought-process, then the question
arises: How does the positing of this individual norm—in our example,
‘Maier is to keep his promise to Schulze to pay him 1,000’—come about?
It can happen by Maier’s recognizing the general norm and addressing to
himself the command ‘You are to keep your promise to Schulze, i.e. pay
him 1,000.’ It can happen in this way, but need not, for Maier can for
some reason or other fail to recognize the validity of the general norm
for this concrete case. On the other hand, Schulze can recognize the
§ XIV Rule of Inference and Norms 237
general norm and address to Maier the command to keep his promise.
And any other member of the community subject to the moral order can
recognize the general norm and address to Maier the relevant command,
i.e. posit the individual norm. For when a moral order prescribes a
certain behaviour under certain conditions, it commands all the members
of the community it institutes to approve of behaviour which agrees with
the norms of the moral order (i.e. moral behaviour) and to disapprove of
behaviour opposed to the norms of the order (i.e. immoral behaviour).
But the emotional act of approval or disapproval of behaviour implies
that the approving or disapproving individual wills that the approved
behaviour is to occur and the disapproved behaviour not occur. It
implies, in our example, an act of will of which the individual norm
‘Maier is to keep his promise to Schulze’ is the meaning. But this
presupposes the recognition of the validity of the general norm ‘All
people are to keep their promises.’
The so-called autonomy of morality consists in the fact that this
recognition of the validity of the general norm is a necessary condition
for the positing of the corresponding individual norm. Morality is not
autonomous in the sense that it is the subjects of the moral order who
have to posit the general norms of the moral order. They are not
competent to do so. The so-called autonomy of morality consists only in
the fact that the application of a general moral norm to a concrete case
(and that means the positing of a corresponding individual norm) is
conditional upon the recognition of the validity of the general norm for
the concrete case on the part of the individuals whose behaviour is
decreed to be obligatory by the general norms of the moral order. If in a
concrete case, for some reason or other, the recognition of the validity of
the general norm concerning him and consequently the positing of the
corresponding individual norm does not result in any act of will on the
part of the individual, the individual norm does not become valid and
cannot become valid by means of the logical thought—process of an
inference.

XIV. No Inference from the Validity of the General Norm to that of

the Individual Norm

This is even more obvious in the area of law (NOTE 165). The decisive
question is whether the rule of inference is applicable to the relation
between the validity of the general norm created by the legislator or by
custom and the validity of the individual norm which the law-applying
organ has to posit in order to apply the general norm to the concrete
case; i.e. whether the validity of this individual norm can be obtained by
means of a logical inference. This question should not be confused with
238 Rule of Inference and Norms ch. 58
the question concerning the way in which the law—applying organ
actually reaches its decision in concrete cases, or with the question
whether it is desirable that the law—applying organ logically deduce its
decision from a general norm or be strictly bound by predetermined
general norms. These are questions of psychology or of legal politics.
The problem with which we are concerned here is purely logical.
Consequently, we assume that the general norms are formulated clearly
and unambiguously, in order to avoid the common argument that a
logical deduction is impossible for the simple reason that the formulation
of general legal norms is too imprecise.
The general norms posited by the legislator normally concern future
behaviour which the legislator does not, and cannot, foresee. If the
legislator posits the general norm—Le. wills—that if a future judge finds
that a person has committed theft, he is to decide—i.e. posit the
individual norm—that this person is to be imprisoned, he cannot foresee
that at some point in the future Judge Korner will find that Maier stole a
horse from Schulze, and so cannot will that Judge Korner is to decide
‘Maier is to be imprisoned.’ Nevertheless, peOple assume the following
normative syllogism to be valid:
1. If the following general norm is valid: ‘If a competent
judge finds that someone committed theft, he is to
decide—i.e. posit the individual norm—that this person is
to be imprisoned’;
2. and if it is true that Judge Korner found that Maier stole a
horse from Schulze;
3. then the following norm is valid: ‘Judge Korner is to
decide that Maier is to be imprisoned.’
But it would be an absurd fiction to suppose that in the legislator’s act
of will of which the general norm is the meaning, there are already
implicit all the possible acts of will whose meanings are the individual
norms corresponding to the general norm. But if the act of will of which
the individual norm is the meaning is not implicit 1n the act of will of
which the general norm is the meaning, then the validity of the individual
norm—which is valid only if it is the meaning of an act of will—cannot
be implicit in the validity of the general norm either. In order for the
individual norm to be valid, there must occur an act of will of which it is
the meaning and which is diStinct from the act of will of which the
general norm is the meaning. It 13 possible for the general norm to be
valid, because it is the meaning of a real act of will, and for the individual
norm not to be valid, if for some reason or other an act of will of which 1t
is the meaning does not occur. The validity of the individual norm
cannot follow from that of the general norm as the truth of an individual
statement follows from that of a general statement, because the validity
of the individual norm is not implicit in that of the general norm as the
§ xv Rule of Inference and Norms 239
truth of an individual statement is implicit in that of a general statement.
If a general statement is true, the corresponding individual Statement
must be true, whether or not anyone actually makes the statement (NOTE
166).

XV. The Recognition of the General Norm as the Presupposition for

the Positing of the Individual Norm

How does the positing of the individual norm corresponding to the

general norm—in our example, the individual norm ‘Judge Korner is to
decide that Maier is to be imprisoned’—come about? It can, but need
not, occur as a result of Judge Korner’s recognizing the validity of the
general norm and addressing to himself the command ‘You are to decide
that Maier the thief is to be imprisoned.’ But Judge Korner can, for some
reason or other—for example, because he considers it unjust to apply the
general norm to the concrete case—not recognize its validity for the
present case and so not posit the individual norm ‘1 am to decide that
Maier is to be imprisoned’ and therefore not come to this decision. In
this event, it is possible for a higher court, upon appeal, to order Judge
Korner (or some other judge) to posit the individual norm ‘Maier is to be
imprisoned.’ That can happen, but need not. The positing of this
individual norm presupposes that the higher court recognizes the
validity of the general norm. For the higher court, for some reason or
other, also may fail to recognize the validity of the general norm for the
concrete case, for example because it too considers its application to the
concrete case to be unjust. It is possible (and not all that infrequent) for a
general legal norm to lose its validity through continued non-
application—i. e. because it loses 1ts effectiveness. Should the individual
legal norm ‘A certain judge 18 to decide that Maier is to be imprisoned’
not be posited by an act of will of the competent court, then this
individual norm is not valid, nor can its validity be obtained by way of a
logical thought-process.
The positing of the individual norm in question presupposes the
recognition of the applicable general norm on the part of the court which
is competent to apply it. There is no difference between morality and law
in this respect. The once popular Recognition Theory is correct to the
extent that the application of a general legal norm to a concrete case by a
law-applying organ is in fact dependent on the recognition of the
applicable general norm for the concrete case. For the act of will whose
meaning is the individual legal norm that in applying a general legal norm
a certain law—applying organ is to posit the corresponding individual
legal norm can occur only as a result of the recognition of the validity of
the general norm.
240 Rule of Inference and Norms ch. 58

If the positing of the individual norm ‘Judge Korner is to posit the

norm “Maier, who stole a horse from Schulze, is to be imprisoned” ’
does not follow logically from the validity of the general norm ‘If the
competent judge finds that a person has committed theft, he is to posit
the individual norm that this person is to be imprisoned’, then a fortiori
the validity of the norm to be posited by the judge cannot follow
logically from the validity of the general norm. For even if Judge Korner
addresses to himself the command ‘1, Judge Korner, am to posit the
individual norm “Maier is to be imprisoned” ’, so that this individual
norm is valid, Judge Korner can, for some reason or other, fail to observe
this norm, i.e. fail to posit the individual norm ‘Maier is to be
imprisoned.’ And then this norm is not valid. But traditional juris-
prudence believes that it is precisely this individual norm ‘Maier, who
stole a horse from Schulze, is to be imprisoned’ which follows logically
from the validity of the general norm ‘If a competent judge finds that a
person committed theft, this person is to be imprisoned’ It is the
individual norm to be posited by the competent judge which forms the
conclusion of the normative or practical syllogism which traditional
jurisprudence assumes to be valid.
Furthermore, even if it were true that the validity of the individual norm
‘Schulze the thief is to be imprisoned’ followed logically from the
validity of the general norm ‘All thieves are to be imprisoned’, it muSt
nevertheless be nOted that in applying a general legal norm a judge
always enjoys a certain discretion; for example, if the general legal norm
does not specify the length of the imprisonment, or specifies only upper
and lower limits, and the judge—exercising his discretion—decides that
Schulze the thief is to be imprisoned for one year. That he is to be
imprisoned for one year cannot follow logically from the mere
requirement that he is to be imprisoned. Or again, if the general legal
norm leaves it up to the judge whether he is to order a sanction or not;
for example, a general norm which specifies: ‘If someone aged between 14
and 16 commits an act which falls under the concept of a punishable
delict specified by the legal order, the judge is empowered to order a
punishment he considers appropriate or not to order any punishment at
all.’ The decision of a judge to impose two weeks’ imprisonment on
Schulze, who 13 15 years old and who stole a watch from his schoolmate
Maier, cannot be logically deduced 1n any way from this general norm.
But even if the general norm specifies the sanction as precisely as
possible—for example, the general norm ‘If a person commits murder,
he is to be punished with death by hanging’—an individual norm must
still be posited specifying when and where the hanging of Schulze the
murderer is to take place This "when and where’ cannot follow
logically from the validity of a general norm which does not, and cannot,
specify the time and place. Thus even if the judicial decision were to
§ XVI Rule of Inference and Norms 241

follow logically from the validity of the applicable general legal norm,
this could occur only to a limited extent, since the law—applying organ
always enjoys a certain amount of discretion, and in so far as the content
of the individual norm falls within this discretion, we cannOt therefore
speak of a logical inference, because this part of the individual norm
cannot be implicit in the premisses.5

XVI. The ‘Satisfaction-calculus’

The fact that the validity of the individual norm is not implicit in that of
the general norm to which it corresponds and that the validity of the
individual norm therefore cannot be the result of an inference is even
more obvious when an attempt is made to found the applicability of the
rule of inference to norms upon an analogy between the truth of a
statement and the observance of a norm, rather than on an analogy
between the truth of a Statement and the validity of a norm. If we
correlate the general statement ‘All people keep their promises’ with the
general norm ‘All people are to keep their promises’, and the individual
statement ‘Maier keeps his promise to Schulze to pay him 1,000’ with the
individual norm ‘Maier is to keep his promise to Schulze to pay him
1,000’, then the truth of the individual statement is always implicit in that
of the general statement, and follows logically from it. But the fact that
the truth of the individual statement is implicit in that of the general
statement does not entitle us in any way to assume that this relation also
holds between the corresponding norms. It is just this assumption which
forms the basis of Dubislav’s previously mentioned attempt to justify
requirement-sentences (ch. 54). He does this by ‘recasting’ the
requirement-sentence—i.e. the norm—‘Human beings are not to kill
other human beings’ as the assertion-sentence ‘If X is a human being,
then there are no human beings which he kills’ (which can be expressed
more simply as ‘Human beings do not kill human beings’). Accordingly,
the individual norm ‘Cain is not to kill Abel’ must be recast as the
assertion-sentence ‘Cain does not kill Abel.’
Frey (1957) proceeds in a similar way. He assumes that to every
imperative sentence there correspond two different assertion--sentences,
one asserting the existence of the act of will of which the 1mperative (or
norm) is the meaning, and another asserting that the imperative (or
norm) is observed. This is how Frey says the rule of inference applies to
imperatives: ‘An imperative is derivable from given premisses if it is
derivable in both the existence-calculus and the satisfaction—calculus’
5 John Dewey, the famous American philosopher, made the following comment: ‘No
concrete proposition, that is to say one with material dated in time and placed in space, follows
from any general statements or from any connection between them’ (1924: 22). .
242 Rule of Inference and Norms ch. 58

(1957: 466). This formulation is incorrect. What Frey could say, on the
basis of his earlier account, is that an imperative is derivable from given
premisses, not if ‘it’—the imperative—is derivable in both the existence-
calculus and the satisfaction-calculus, but rather if the statement about
the existence of an act of which an imperative is the meaning is derivable
from premisses containing at least one statement about the existence of
an act of which another imperative is the meaning, and if the statement
about the observance of an imperative is derivable from premisses
containing a statement about the satisfaction of another imperative. The
example Frey gives for the application of the rule of inference is: ‘Behave
properly!’; ‘Proper behaviour includes the way one eats’; ‘Eat properly!’
(p. 466). The imperative ‘Eat properly!’ can be derived from the
imperative ‘Behave properly!’ and the statement ‘Proper behaviour
includes the way one eats’—Frey assumes—because the statement
‘Someone commands that you are to eat properly’ follows from the
statement ‘Someone commands that you are to behave properly’ and the
statement ‘Proper behaviour includes the way one eats’, and because
the statement ‘You eat properly’ follows from the statement ‘You be-
have properly’ and the statement ‘Proper behaviour includes the way
one eats.’ _
With respect to what Frey calls deducibility in the ‘existence—calculus’,
it should be noted that the statement ‘Someone commands that you are
to eat properly’ does not follow logically from the statement ‘Someone
commands that you are to behave properly’ and the statement ‘Proper
behaviour includes the way one eats.’ It is possible for someone to
command that you are to behave properly, and for it to be true that
proper behaviour includes the way one eats, and nevertheless for no one
to command that you are to eat correctly. The act of commanding of
which the imperative ‘Eat properly!’ is the meaning cannot be inferred
logically, i.e. by means of a thought-process; for the act of commanding
is an act of will, a fact. The only thing which can be a logical consequence
is the truth of a statement, not a fact.
Deducibility in the ‘satisfaction—calculus’ is in faCt possible. From the
truth of the statement ‘You behave properly’ and that of the statement
‘Proper behaviour includes the way one eats’, there follows the truth of
the statement ‘You eat properly.’ But from the imperative—to be more
exact, from the validity of the imperative—‘Behave properly!’, and the
statement—to be more exact, the truth of the Statement—‘Proper
behaviour includes the way one eats’, the imperative—to be more exact,
the validity of the imperative—~‘Eat properly!’ does not follow logically
by way of a thought-process, for the reason given above: because the
validity of an imperative (or norm) is conditional upon the occurrence of
the aCt of which the imperative (or norm) is the meaning, and the act of
will cannot be inferred logically, i.e. by way of a thought—process.
§ XVIII Rule of Inference and Norms 243
XVII. The Validity of a General Norm is Prior to that of an Individual
Norm; The Validity of General and Individual Statements
Temporally Independent of Each Other

It was pointed out earlier that the truth of the general statement ‘All
humans are mortal’, is not prior in time to that of the individual
statement ‘Socrates is mortal’, since the latter is implicit in the former: the
individual statement must already be true if the general statement is true.
But the validity of the general norm is prior in time to that of the
individual norm. The individual norm is not yet valid when the general
norm is already valid. The individual norm becomes valid only if it is
posited by an act of will different from the act whose meaning is the
general norm, and the general norm becomes valid if it is posited by an
act of will prior in time to that whose meaning is the individual norm.

XVIII. The ‘Condition’ in the General Norm is not a Fact, but the
Court’s Finding of Fact

According to the usual account of a normative syllogism whose major

premiss and conclusion are legal norms and whose minor premiss is a
statement, such as
1. If someone commits theft, he is to be imprisoned;
2. Maier has committed theft;
3. Therefore Maier is to be imprisoned.
the validity of individual norm 3 follows from that of general norm 1 and
the truth of statement 2. But individual norm 3 can be valid without
statement 2 being true at all, and the correct formulation of the general
norm serving as major premiss is not ‘If someone commits theft, he is to
be imprisoned’, but rather ‘If a competent court finds that someone has
committed theft, the court is to posit an individual norm prescribing that
this person is to be imprisoned.’ If a normative syllogism were possible,
what would have to be true is not the statement that Maier committed
theft, but the statement that a competent court found that Maier had
committed theft. Whether this finding is true or false is irrelevant for the
validity of the individual norm to be posited by the court. Admittedly,
the court’s decision—i.e. the individual norm—can be challenged on the
grounds that the finding of fact is not true and be repealed for this reason
by the decision of a higher court. But the individual norm is valid as long
as it is not repealed, and if the court’s decision becomes res judicata, it
cannot be challenged at all or repealed on the grounds that the finding of
fact is false. The condition decreed in the general legal norm is not the
actual occurrence of a delict, but the finding by a competent court that a
244 Rule of Inference and Norms ch. 58

delict took place (NOTE 167). And this determination is not a statement in
the logical sense. It does not have a descriptive (i.e. declarative) character,
but a constitutive character. The condition specified in the general legal
norm is satisfied once the court has made its finding of fact. This finding
is normally a component of the individual norm to be posited by the
court: an actual component—and in the case of a mere declaratory
judgment, a possible component—of an individual norm to be posited
by a court. And the consequence decreed to be obligatory in the general
legal norm is not a coercive act as sanction, but rather the positing of an
individual norm, the positing of the prescription that a sanction specified
in the general legal norm is to be performed. The question whether there
occurred a delict—i.e. behaviour to which the coercive act, the sanction,
specified in the general legal norm is the specific reaction—can be
answered in a legally relevant way only once the court’s decision
ordering the performance of the coercive act (i.e. decreeing it to be
obligatory) has become res judicata.

XIX. The Judicial Function as Legal Cognition

The belief that the validity of the individual norm to be posited by the
judge results from the validity of the general norm by a logical
inference—Le. a thought-process—is connected with the view that the
judge’s function is one of legal cognition6 (while that of the legislator is
one of willing), that the judge’s task is the cognitive one of ‘finding’ the
law already valid in the concrete case, that the act he has to perform is a
‘judgment’ (NOTE 168).
It was formerly believed that the legislator’s function was simply that
of finding and promulgating the norms already posited by God or
Nature, and not one of creating them.7 The view that the legislator and
the judge are not to make the law, but rather to know it, is the
consequence of the not uncommon view that law is a science, or that law
is also a science. This is the opinion of E. Meynial, who was in his day a
highly respected French jurist: ‘law is as much an art as a science’ (1908:
164), and ‘law is not only a science; it directs human actions, it creates

6 Ascarelli mentions ‘that Alfredo Rocco (who was the jurisr of the Fascist regime) . . . in his
Sentenza civile (1906) . . . identified the judge’s reasoning with a syllogism and stated that a
court’s judgment was an act of the intellect and not of the will. Subsequent Italian doctrine
opted for the latter opinion’ (1961: 121).
7 Morris Raphael Cohen refers to this (1914: 166 f.). He also correctly States that there is a
basic connection between the view that the function of the courts is merely one of applying the
law and the dOCtrine of the separation of powers, since this doctrine holds that the creation of
law is reserved to the legislative organ. But the docrrine of the separation of powers is untenable
precisely on this point of separation of legislation and adjudication, since applying the law is not
separable from creating it.
§ xx Rule of Inference and Norms 245

and destroys rather than restricting itself to knowledge’ (p. 167). Albert
Kocourek is also highly significant in this respect:
In the creation of law by legislatures, logic of purpose is almost negligible. Legislative
creation of law is volitional . . . Judicial creation and modification of legal rules,
however, exhibits clearly the influence of logic . . . In its highest form, logic manifests
itself in the application of law, so far as it does not involve the creation or
modification of old rules . . . The process of applying law concretely in such a case is
a deductive process. Without this logical process of reasoning, the work of the lawyer
and the judge would be thrown into a realm of chaos (1930: 207). For the
application of law, it is inescapable that the process is, and must be, logical.
(p. 211)
According to this view, creation of law by the legislator is a function of
the will (‘volitional’), but applying the law is rational thinking
(‘reasoning’).

XX. ‘Legal Thinking’ and Logical Principles

Similarly, the problem of the applicability of logical principles,

particularly the rule concerning inference from the universal to the
particular, is frequently understood incorrectly as the problem whether
logical principles are applicable to ‘legal thinking’. If there is such a thing
as ‘legal thinking’, then it is obvious and unproblematic that the
principles are applicable to it, or more correctly, to the meanings of the
acts of thought which can be called ‘legal’, since logical principles are
applicable to the meanings of all acts of thought, and so also to those of
acts of so-called legal thinking. But norms are mm the meaning of acts of
thought but of acts of will; and legal thinking can only be thinking which
has as its object legal norms which are the meaning of acts of will, i.e.
legal norms which have already been posited. Legal thinking cannot
create or repeal legal norms, it cannot make any legal norm valid or
invalid. But the question of the applicability to norms of the logical
principles of contradiction and of inference arises in cases of conflicts of
norms and in cases where a general norm has to be applied to a concrete
case. These cases are concerned with the making-valid and the making-
invalid of norms. This cannot be effected by thinking, not even ‘legal’
thinking. There can be no such thing as ‘legal thinking’ in this sense
(NOTE 169).
A typical example of the incorrect interpretation of the problem of the
applicability of the two logical principles to legal norms as the problem
whether these principles are applied in legal thinking can be found in
Frede Castberg (1957). While Castberg denies that a conflict between a
norm of morality and a norm of law is a logical contradiction (p. 23), the
reason is nOt that the logical principle of contradiction is not applicable
246 Rule of Inference and Norms ch. 58

to the relation between norms, but rather that the validity of legal norms
is independent of that of moral norms. He says:
The notion of legal duty cannot be regarded as a subordinate notion to the notion of
moral duty. In my Opinion, the conception of the ‘validity’ of law and of the ‘duty’ to
observe the dictates of law are purely formal notions—a priori conceptions, which
are necessary to the understanding of the meaning of the law, but which are
independent of the moral (or if one prefers metaphysical) conception of a true duty
to act in accordance with the dictates of the law. It is therefore no logical
contradiction to regard a rule as binding law, but at the same time to judge oneself
morally obliged to break it.
It is clear that the case he mentions of a conflict between law and
morality is a conflict of norms, since he insists ‘that the notion of law . . .
comprises norms . . . In order to reach an understanding of the notion of
law we must consequently first ascertain that such and such contents of
ideas—norms with a foundation in reality—without doubt may be
regarded as “law” ’ (p. 22).
"Castberg assumes, in accordance with the dominant opinion of
traditional jurisprudence, that logical principles, in particular the rule of
inference, are applicable to norms in general and to legal norms in
particular. He gives as an example: ‘One may take the normative
Statement that promises must be kept. Can one, when such a norm is
valid, conclude from this that such and such a concrete promise must be
fulfilled in accordance with its special contents? This also embraces the
question of the logical justification of the so-called “subsumption” ’
(pp. 52 f.). Castberg answers in the affirmative. But it is significant that
he presents the problem of the normative syllogism in an example
entitled ‘The Necessity of Logic in Legal Thinking’. His claim is that
‘logic has its place in legal thinking’ (p. 62). If there is such a thing as
‘legal thinking’, it is obvious that the principles of logic are applicable to
this thinking, or more accurately, to the meaning of acts of legal
thinking. But the problem is whether they are applicable to norms,
which are n0t the meaning of acts of thought but of acts of will.
Even though Castberg grants ‘that it is impossible to conclude from
general will to special’ (p.53), he accepts the existence of normative
syllogisms. He can do so only because he claims that
the conclusion from a rule of law to the concrete legal duty is no.1 a conclusion from
an expression of will . . . For one obviously cannot assume that persons have the
logical consistency in their volitional lives . . . The norm is not an expression of the
volitional impulses of one or more persons, but a statement of duty, of what must or
may be performed or refrained from. (p. 65)
If it is not the meaning of an act of will, then ‘a statement of duty, of
what must or may be performed or refrained from’ can only be the
meaning of an act of thought, that is, a statement about the validity of a
norm. But from the statement about the validity of the general norm
§ xx Rule of Inference and Norms 247
‘Promises are to be kept’, there does not follow logically the statement
about the validity of an individual norm to the effect that a materially
determinate promise made by a definite person is to be kept. For the
general norm can be valid, and 1t can be true that a certain person made a
certain promise, and nevertheless the individual norm that this promise is
to be kept not be valid because no act of will of which it is the meaning
was performed.
Castberg’s claim that ‘a result which follows from the commands of
the law and the existing principles of legal interpretation, is immediately
binding’ is clearly incorrect. The only thing immediately binding is the
individual norm posited by an act of will of the organ applying the
general norm, and the validity of this individual norm cannot be
obtained by way of a logical process of thought. On p. 55 Castberg says:
‘The norm——syllogism—the application of the general command to the
special or quite concrete case—is the logically necessary form of
normative thinking. But if the norm is a c’,‘ommand it can only be the
meaning of an act of will, not the meaning of an act of thought. Castberg
is forced into this highly inconsistent position because he interprets the
grounding or justification of the validity. of an individual norm by a
general norm to which the individual norm corresponds as a logical
inference. He says: ‘No acceptance of duty in a concrete situation can
find its justification otherwise than in the form of a conclusion from a
general command, which is regarded as being valid . . . Under all
circumstances, the grounds given for the result must take the form of a
conclusion from general to special’ (p. 54). It is correct that the validity
of the individual norm—if it is posited as the meaning of an act of will—
can be grounded or justified only by the validity of a general norm which
is the meaning of another act of will. But this grounding or justification
consists—as we shall see—simply in the ascertainment that the
individual norm corresponds to the general norm. Castberg says: ‘In our
understanding of nature, we must necessarily assume the principle that
everything has a cause. In the understanding of moral or legal duty, we
must necessarily assume that everything must have a reason’ (p. 55). The
grounding of the validity of an individual norm on the validity of a
general norm can in fact be compared to a causal explanation. the
expansion of a metal can be explained by 1ts increase in temperature. The
increase in temperature is recognized as being the reason for the
expansion. But the expansion does not follow from the increase in
temperature by way of a logical inference.
Castberg appeals to the fact ‘that people actually reason in this way’,
that is, draw an inference from the validity of a general norm to that of an
individual norm. It may be the case that if a person makes a promise to
another person and realizes that there is a valid moral norm ‘A person is
to keep his promises’, he thinks ‘Thus, I am to keep my promise.’ But as
248 Rule of Inference and Norms ch. 58

long as he does not address a command to himself ‘Keep your promise’,

and no other subject competent to do so addresses such a command to
him, this individual norm is not valid. If he only thinks ‘I am to keep my
promise’ without addressing the command to himself (i. e. without
positing the individual norm by an act of will), then the meaning of this
act of thought expressed 1n a sollen-sentence is not an individual norm,
but rather a statement whose correct formulation is ‘It is only when I
keep a promise that my behaviour agrees with the valid general norm “A
person is to keep his promises” and that my behaviour is good and right,
i.e. as it ought to be.’

XXI. The Significance of Res judicata

It was pointed out earlier that the queStion whether a delict occurred can
be answered in a legally relevant way only after the court’s decision
ordering the performance of the coercive act has become res judicata.
The consequence of the principle of res judicata (when it is in force in a
positive legal order) is that an individual norm posited by a law—applying
organein particular, a court—can be valid even though it does not
corrrespond to any materially determinate general norm created by the
legislator or by custom. Thus, for instance, a judicial decision ordering a
sentence of imprisonment in a case where the court found that
defamation had occurred can become res judicata even though the
general norm posited by the legislator provides for nothing more than a
fine 1n cases of defamation, or a judicial decision 1n a case where the
court found there had been a breach of promise of marriage can order the
payment of damages (i.e. execution of judgment in the event the damages
are not paid) even though there is no valid general norm providing for
damages for breach of promise. Or the decision of a court which finds
that a person commmitted theft and yet acquits him (i.e. orders that he is
not to be imprisoned) can become res judicata, even though there is a
valid general norm prescribing that a competent court impose a sentence
of imprisonment in all cases of theft without exception.
Since there must be a reason for the validity of every individual norm,
the proposition of law describing the general legal norm to be applied by
the court muSt be formulated by legal science as a set of alternatives, so
that the legal organ is empowered to order not only the performance of a
coercive act specified in the general legal norm, but also the performance
of a coercive act which appears to the organ to correspond to the general
norm, and the performance of a coercive act even when no general legal
norm provides for one, and even the non——performance of a coercive act
(i.e. the acquittal of the delinquent or the dismissal of the civil action)
when the court finds that behaviour for which a general legal norm
prescribes a coercive act occurred (NOTE 170).
§ XXII Rule of Inference and Norms 249
It could be argued that if the judicial decision becomes valid in virtue
of the principle of res jadicata, then the decision follows logically from
this principle. But the same objection must be made to this argument as
was made against the assumption that the judicial decision is deduced
logically from a materially determinate general legal norm: even the
judicial decision which has become valid in virtue of the principle of res
jadicata is valid only if it occurs as the meaning of an act of will
performed by the judge, and this act of will cannot be obtained by way
of a logical thought—process.
It could also be argued that the principle of res jadicata, which confers
validity on any judicial decision which does not correspond to a valid
materially determinate general legal norm, amounts to a conferral on the
judge by positive law of the power to decide concrete cases according to
his discretion, and in particular according to any principle he considers
to be just. But there is this difference, that if there are valid general legal
norms whose meaning is that they are to be applied by the courts, then as
a rule the courts do apply them, and it is only exceptionally that judicial
decisions which do not corrrespond to the general norms become valid.
The principle of res jadicata, that is, the principle that litigation must
come to an end, is not in fact an abrogation but only a qualification of the
Principle of Material Legality of judicial decisions.

XXII. The Relation between General Norms of Varying Degrees of

Generality

The relation between a general norm and its corresponding individual

norm must be distinguished from the relation between two general
norms which differ only in their degree of generality, for example the
two norms (1) ‘No one is to cause harm’ and (2) ‘No one is to slander’, or
(1) ‘If someone intentionally causes the death of another by his own
behaviour, he is to be imprisoned for life’ and (2) ‘If someone
intentionally causes the death of another by shooting, he is to be
imprisoned for life.’ In each case, general norm 2 is actually implicit in
general norm 1 and can be made explicit by interpretation.
The individual norm cannot be implicit in the general norm which it
applies, because of the complete individualization realized in the
individual norm. The concept ‘slander’ is contained in the concept
‘harm’; the concept ‘cause the death of another by shooting’ is contained
in the concept ‘cause the death of another by his own behaviour’. In both
cases, norm 2 does not decree anything not already decreed in norm 1.
But the individual norm ‘Maier is not to slander Schulze by falsely
claiming he stole 1,000 from Schmidt’ decrees more than the general
norm ‘No one is to cause harm.’ And the individual norm ‘Schuster, who
shot Bauer to death, is to be imprisoned for life’ decrees more than the
250 Rule of Inference and Norms ch. 58

general norm ‘If someone intentionally causes the death of another by

his own behaviour, he is to be imprisoned for life.’ For Maier’s
behaviour concerning the theft of 1,000 from Schmidt is not contained in
the concept of slander, and Schuster’s behaviour towards Bauer is not
contained in the concept of causing another’s death by one’s own
behaviour.
It can be assumed that the moral authority which wills that no one is
to cause harm also wills that no one is to slander, since it can be assumed
that the moral authority knows that to slander someone is to harm him.
But it cannot be assumed that the moral authority knows that Maier will
slander Schulze by falsely claiming that he stole 1,000 from Schmidt.
Similarly, it can be assumed that the legislator who wills that someone
who causes the death of another by his own behaviour is to be
imprisoned for life, also wills that someone who causes the death of
anorher by shooting is to be imprisoned for life, since it can be assumed
that the legislator knows that one can kill a person by shooting him. But
it cannot be assumed that the legislator wills that Schuster, who shot
Bauer to death, is to be imprisoned for life, since it cannot be assumed
that the legislator knows that Schuster will shoot Bauer to death. A
person can will only what he knows.
Thus, no particular act of will is necessary to make norm 2 valid (in the
two examples above). The relation between norms 1 and 2 can be
presented in the form of an inference:
I. No one is to cause harm.
If a person slanders someone, he harms him.
Therefore, no one is to slander.
II. If someone intentionally causes the death of another by
his own behaviour, he is to be imprisoned for life.
Shooting can cause the death of a person.
Therefore, someone who intentionally shoots another
person to death is to be imprisoned for life.
But this inference does not lead to the validity of any new norm. The
norm represented as the conclusion is already valid if the norm represented
as the major premiss is valid, since the former is implicit in the latter.

XXIII. The Application of Logical Principles of Merely Thought

Norms and to Positive Norms

There is another possible objection to the view being advanced here that
the logical pinciple of contradiction and the rule of inference are not
applicable to norms since norms are the meaning of acts of will and nor
the meaning of acts of thought—like statements—and an act of will
§XXIII Rule of Inference and Norms 251
cannot be the result of a logical thought-process. Since the logic of
statements is not concerned with the acts of thought of which the
statements are the meanings, could nm a logic of norms—if there is such
a thing—be concerned not with the acts of will of which the norms are
the meanings, but with the meaning of acts of will about the behaviour of
others? One could then say: the two meaning-contents ‘Adulterers are to
be punished’ and ‘Adulterers are not to be punished’ are just as mutually
exclusive as the meaning-contents ‘God exists’ and ‘God does not exist’;
and the meaning-content ‘Schulze the thief is to be punished with
imprisonment’ follows logically from the meaning—content ‘All thieves
are to be punished with imprisonment’, just as the meaning—content
‘Socrates is mortal’ follows logically from the meaning-content ‘All humans
are mortal’. In other words, from the viewpoint of logic it is irrelevant that
norms are the meaning of acts ofwill rather than of acts of thought.
But these meaning—contents expressed in sollen—sentences are nOt valid
positive norms if they are not understood as the meaning of acts of will.
They are valid positive norms only if they are meaning—contentsof real,
actually occurring, acts of will. Their validity, i.e. their ideell exisrence, is
conditional upon these real acts of will. And the problem we are
concerned with is whether the principle of contradiction and the rule of
inference are applicable to valid positive norms. In discussing this
problem, we cannot disregard the acts of will of which valid norms are
the meaning. If the two logical principles are applicable to the meaning-
contents under discussion whether or not they are meanings of real acts of
will, it does not follow that they are applicable to norms, which are valid
positive norms only when they are meaning-contents of real acts ofwill
The same reply can be made to the argument that there exists a merely
thought Ought, which is not the meaning of an act of will but of an act of
thought. It is extremely doubtful whether it is possible to think that
people are to behave in a certain way without thinking at the same time
that this is willed by some authority or other, that is, whether it is
possible to deny the correlation of Ought and will. But even if we do
suppose this to be possible, it does not entitle us to assume that there are
norms of a positive morality or positive law which are not the meaning of
acts of will and to which the two logical principles are applicable. For a
merely thought sollen-sentence—in the sense just mentioned—is not a
valid norm of a positive moral or legal order, it is not a norm which
imposes duties on, grants entitlements to, or confers powers on anyone.
A valid positive norm is an Ought only if it is the meaning of a real act of
will. As was noted earlier, its positivity consisrs in its being the meaning
of a real act of will, and the question here is the applicability of the two
logical principles to such valid positive norms. It appears as if the
assumption that the two logical principles are applicable to norms is due
to the fact that people have merely thought sollen—sentences in mind.
 59
Logical Problems alaoat
Grounding tlJe Validity ofNowns
I. The Basic Norm

A. Theoretical Syllogisms Involving Statements about the

Validity ofNorms
It is clear from the foregoing that there is no justification for the
assumption that there can be normative syllogisms in which the validity
of an individual categorical norm follows logically from the validity of
the general hypothetical norm to which it corresponds. Nevertheless,
there does exiSt a syllogism involving a general norm and 1ts correspond—
ing individual norm: namely, on the condition a general norm is valid,
and there exists an act of will whose meaning corresponds to the general
norm. Thus what we must have are statements about the validity of the
general norm and of the corresponding—already valid—individual
norm. For example:
1. The general norm ‘Everyone is to keep his promises’ is
valid.
2. There exists an act of will whose meaning is ‘A is to keep
his promise of marriage to B.’
3. Therefore the individual meaning quoted in the minor
premiss is a norm which corresponds to the general norm
quoted in the major premiss.
This is a theoretical and not a practical or normative syllogism, since
all three sentences are statements which can be true or false. It is not the
validity of the individual norm which follows logically from the
premisses, but the statement that the individual meaning quoted in the
minor premiss is a norm which corresponds to the general norm quoted
in the major premiss; or—and this amounts to the same thing—that the
validity of the individual norm quoted in the minor premiss is founded
on the validity of the general norm quoted in the major premiss.
The validity of a general norm and that of an individual norm can be
represented in a syllogism in another way. In order to do so, we must
begin by accepting that it is not the meaning of every act of will about the
behaviour of another person which is a norm, but that a norm (i.e. an
Ought binding on the addressee) exists only if the subjective meaning of
 § 1 Grounding the Validity of Norms 253
the aCt of will about the behaviour of another person is also its objective
meaning. As was indicated earlier (ch. 8), that is the difference between
the command of a highwayman and the command of a legal organ. The
subjective meaning of an act of will about the behaviour of another
person is also its objective meaning (and that means, is a valid, binding
norm) if this act is empowered by a valid norm of a positive moral or
legal order. The preceding sentence can form the major premiss (1) of a
syllogism, and the following sentences serve as minor premisses:
2. A general norm ‘Everyone 1s to keep his promises’ is valid.
3. Maier promised Schulze to pay him 1,000.
4. An act of will whose subjective meaning is that Maier is to
pay Schulze 1,000 was performed by Maier or some other
member of the community.
Then, the conclusion reads:
5. The subjective meaning of the act of will mentioned in 4 is
also its objective meaning, i.e. a valid, binding norm.
By this syllogism, the validity of the individual norm ‘Maier is to keep
his promise to Schulze to pay him 1,000’ is founded on the validity of the
general norm ‘If someone makes a promise, he is to keep it.’ ‘The
individual norm is founded on the general norm’ means that the
individual norm corresponds to the general norm, and not that the
former is the logical conclusion of the latter; for it is a presupposition of
one norm’s being founded on the Other that the meaning represented by
the individual norm has already been posited (NOTE 171). This 1s not a
normative but a theoretical syllogism, since the premisses and the
conclusion are statements which can be true or false, and the conclusion
is true only if the premisses are true (NOTE 172).
Finally we must consider the following possible syllogism: Since a
judicial decision, that 1s, the individual norm posited, or to be posited, by
a judge when he applies a general legal norm, is the meaning of an act of
will which usually occurs—it need not occur with logical necessity, but
does as a rule—we can say that if a judge finds that there exists
concretely a set of facts abstractly specified in a general legal norm
presupposed to be valid, then as a rule he posits an individual norm
which decrees to be obligatory a concrete legal consequence which is
abstractly specified 1n the general legal norm. If we can also establish that
in a given case a judge found a set of facts which 1s specified abstractly 1n
a valid general legal norm as the condition for an abstractly specified
legal consequence, we can then assert—if we assume the existence of a
logic of probability —that 1t is probable that 1n this case also, the judge

1 Cf. Reichenbach (1949: 45): ‘Whereas the logical implication corresponds to statements of
the kind “If a is true, then b is true”, the probability implication expresses statements of the
kind “If a is true, then b is probable to a degree p.” ’
254 Grounding the Validity of Norms ch. 59
will posit an individual norm corresponding to the general norm. This
constitutes a syllogism—not a normative but a theoretical syllogism—
whose conclusion is not the individual norm in the judicial decision, but
the statement about the likelihood of an act whose meaning is a judicial
decision corresponding to the general norm (NOTE 173).

B. The Basic Norm as the Ultimate Reason for the Validity ofa
Normative Order

Since the statement serving as major premiss states that the subjective
meaning of an act of will about the behaviour of another person is also its
objective meaning—Le. is a valid norm—then if this act is empowered
by a moral or legal norm presupposed to be valid, this theoretical
syllogism seems to lead to an infinite regress. For the norm presupposed
to be valid is itself the subjective meaning of an act of will about the
behaviour of another person, and its meaning is also its objective
meaning (and so is a valid norm) only if it is empowered by anOther
norm presupposed to be valid.
For example: Paul comes home from school and says to his father:
‘My classmate Hugo is my enemy; I hate him.’ Thereupon, Paul’s father
addresses an individual norm to him: ‘You are to love your enemy Hugo
and not hate him.’ Paul asks his father: ‘Why am I to love my enemy?’;
that is, he asks why the subjective meaning of his father’s act of will is
also its objective meaning, why it is a norm binding on him, or—and this
is the same question—he wants to know the reason for the validity of
this norm. Whereupon his father says: ‘Because Jesus commanded “Love
your enemies.” ’ Paul then asks ‘Why is anyone to obey the commands
of Jesus?’; that is, he asks why the subjective meaning of Jesus’s act of
will is also its objective meaning, why it is a valid norm, or—and this is
the same question—what is the reason for the validity of this general
norm. The only possible answer to that is: Because as a Christian one
presupposes that one is to obey the commands of Jesus. This is a
statement about the validity of a norm which must be presupposed in the
thinking of a Christian in order to found the validity of the norms of
Christian morality. It is the Basic Norm of Christian morality, and it
founds the validity of all the norms of Christian morality. It is a ‘basic’
norm, because nothing further can be asked about the reason for its
validity. It is not a positive norm (i.e. posited by a real act of will) but a
norm presupposed in the thinking of Christians, in other words, it is a
fictitious norm.
If we take an example from the field of law, the following statements
will serve as minor premisses:
2. The general norm (posited by the legislator) ‘All thieves
are to be punished with imprisonment’ is valid.
§I Grounding the Validity of Norms 255
3. A competent judge has found that Maier stole a horse from
Schulze.
4. An act of will was performed (by the judge) whose
subjective meaning is that Maier is to be imprisoned.
Then the conclusion is the statement:
5. The subjective meaning of the act of will mentioned in 4 is
also its objective meaning, i.e. a valid, binding norm.
This too is a theoretical and nm a normative syllogism, since all its
constituents are Statements which can be true or false. If one asks why
the subjective meaning of the legislator’s act mentioned in 2 is also its
objective meaning (i.e. is a general norm), or in other words what is the
reason for the validity of the norm posited by the act of the legislator,
then the answer is: Because this act is empowered by a norm of the
constitution, i. e. by the meaning of an act of will performed by the
author of the constitution. If this 1s the historically first constitution and
one asks why the subjective meaning of the constitution--granting act is
also its objective meaning (i.e. is a valid norm), or in other words, what is
the reason for the validity of this norm, the answer is: Because as a juriSt
one presupposes that one is to behave as the historically first constitution
prescribes. This is a Basic Norm. This Basic Norm empowers the
individual or individuals who posited the historically first constitution to
posit the norms which represent the historically first constitution. If the
historically first constitution was posited by the resolution of an
assembly, then it is the individuals forming this assembly who are
empowered by the Basic Norm; if the historically first constitution arose
by way of custom, then it is this custom, or to be more exact, it is the
individuals whose behaviour forms the custom creating the historically
first constitution, who are empowered by the Basic Norm. That is the
Basic Norm of the legal order resting ultimately on the historically first
constitution.

C. The Reason for the Validity ofa Norm Can Only he a Norm:
Statements of Ethics and of Legal Science are Conditional upon the
Presapposition of the Basic Norm
It is a ‘basic’ norm, because nothing further can be asked about the reason
for its validity, since it is not a posited norm but a presupposed norm. It
is not a positive norm, posited by a real act of will, but a norm
presupposed in juridical thinking, i.e. a fictitious norm—as was
indicated previously. It represents the ultimate reason for the validity of
all the legal norms forming the legal order. Only a norm can be the
reason for the validity of another norm (NOTE 174).
The Basic Norm can be presupposed, but it need not be. What ethics
256 Grounding the Validity of Norms ch. 59
and legal science assert about the Basic Norm is this: It is only if it is
presupposed that the subjective meaning of acts of will about the
behaviour of other people can be interpreted as their objective meaning,
i.e. that these meaning——contents can be interpreted as binding moral or
legal norms. Since this interpretation is conditional upon the pre—
supposition of the Basic Norm, it must be conceded that sollen-sentences
can be interpreted as objectively valid moral or legal norms only in this
conditional sense.

D. The Basic Norm Is a Fictitious Norm

As is obvious from the foregoing, the Basic Norm of a positive moral or
legal system is not a positive norm, but a merely thought norm (i. e. a
fictitious norm), the meaning of a merely fictitious, and nor a real, act of
will. As such, it is a genuine or "proper fiction (in the sense of
Vaihinger’s philosophy of As—if) whose characteristic 1s that 1t is nor only
contrary to reality, but self-contradictory.2 For the assumption of a
Basic Norm—for 1nstance, the Basic Norm of a religious moral order
‘Everyone is to obey God’s commands’, or the Basic Norm of a legal
order ‘Everyone is to behave as the historically first constitution
specifies’—not only contradicts reality, since there exists no such norm
as the meaning of an actual act of will, but is also self-contradictory,
since it represents the empowering of an ultimate moral or legal
authority and so emanates from an authority—admittedly, a fiCtitious
authority—even higher than this one. According to Vaihinger, a fiction
is a cognitive device used when one is unable to attain one’s cognitive
goal with the material at hand (1935: 13). The cognitive goal of the Basic
Norm 1s to ground the validity of the norms forming a positive moral or
legal order, that 1s, to interpret the subjective meaning of the norm—
positing acts as their objective meaning (i.e. as valid norms) and to
interpret the relevant acts as norm-positing acts. This goal can be
attained only by means of a fiction. It should be noted that the Basic
Norm is not a hypothesis in the sense of Vaihinger’s philosophy of As—
If—as I myself have sometimes characterized it—but a fiction. A fiction
differs from a hypothesis in that it is accompanied—or ought to be
accompanied—by the awareness that reality does not agree with it
(pp. 85 ff.).

2 Vaihinger (1935: 16). ‘Ideational constructs are in the strict sense of the term real fictions
when they are not only 1n contradiction with reality but self-contradictory 1n themselves. .To
be distinguished from them are constructs which only contradict reality as given, or deviate
from 1t, but are not in themselves self-contradictory. .The latter might be called half—fictions
or semi--ficrions.’
§1 Grounding the Validity of Norms 257
‘Higber’ and ‘Lower’ Norms
When the validity of one norm founds the validity of another norm in
one way or another, this creates the relation between a higher and a
lower norm. A normstands to another norm as higher to lower, if the
validity of the latter is founded on the validity of the former. If the
validity of the lower norm is founded on the validity of the higher norm in
that the lower norm is created in the way prescribed in the higher norm,
then the higher norm has the character of a constitution with respect to the
lower norm, since the essence of a constitution is that it regulates the
creation of norms. Thus a statute regulating the procedure by which law—
applying organs, courts in particular, create individual norms is a
‘constitution’ with respect to the procedure of these organs, just like the
‘constitution’ in the narrower specific sense of the word with respect to
legislative procedure, and the conStitution in the transcendental—logical
sense with respect to the historically first constitution (or constitution in the
positive-legal sense). The concept of a constitution is thus relativized. From
the point of view of the Basic Norm, both a positive moral order and a
positive legal order are a norm-generating complex [Erzeugungszusammen-
bang] inasmuch as the Basic Norm only specifies who is to posit the norms
of the moral or legal order, i. e. only the ultimate norm-positing authority,
without specifying the content of the norms to be posited by this
empowered authority.
If the higher norm only specifies the act of positing the lower norm
and not its content, that is, confers the power to posit norms with any
content whatsoever, then the validity of the lower norm is founded on
that of the higher norm only if the act of positing the lower norm
corresponds to the higher norm. As was indicated, such is the relation of
the Basic Norm to the norms of a positive moral or legal order (NOTE
175). But the norms posited by the ultimate moral or legal authority
empowered by the Basic Norm—God or the author of the constitu—
tion—can themselves empower other authorities to posit norms, and
either specify or not specify the content of the norms to be posited.
From the point of view of the ultimate moral or legal authority
empowered by the Basic Norm, the network of positive norms forming
the moral or legal order is not necessarily a mere norm—generating
complex. This is clear in the area of morality, since the ultimate moral
authority never empowers another lower authority to posit norms with
any content whatsoever. The norm proclaimed by St Paul ‘One is to
obey the powers that be’ certainly does not mean that one is even to
obey a command of the authorities which transgresses certain norms
posited directly by God, such as ‘You are not to have any gods besides
me . ’As a rule, this is also the case in the area of law, since the
constitution usually does not limit itself to specifying the procedure for
the creation of general legal norms—what we call legislation—but also
258 Grounding the Validity of Norms ch. 59
quite frequently specifies the content of future statutes at least negatively
by excluding certain contents such as restrictions on freedom of
expression or of religion, or differential treatment based on differences
such as race. On the other hand, the general norms posited by the
legislator always specify not only the procedure of the organs which
have to apply these norms, but also their content, so that a positive legal
order is never a mere norm—generating complex, at least from the point of
view of the statutes. Nevertheless, one could imagine such a legal order:
the one in Plato’s ideal state empowered the judges to decide individual
cases according to their discretion without being bound by any
predetermined general norms.

F. The Normative Order as a Norm-generating Complex

A positive moral or legal order never constitutes a system of merely co—
ordinate norms, but always one of superordinate and subordinate norms,
i.e. a hierarchical Structure of norms, whose highest level is the
constitution whose validity is founded on the presupposed Basic Norm,
and whose lowest level 1s made up of the individual norms decreeing
particular concrete behaviour to be obligatory.

II. The Logical Nature of the Relation Called ‘Correspondence’

between Two Norms

That the validity of a lower norm is founded on the validity of a higher

norm means that the lower norm correSponds to the higher (NOTE
176). This correspondence admits of different degrees, according to
whether the higher norm specifies only the act of positing the lower
norm, i e. only the organ which 1s to posit the lower norm—it then
empowers a particular organ to posit norms—or whether 1t also specifies
the content of the norm to be posited by this organ.

A. The Relation hetween Higher and Lower Norms where there is no

Specification of Content
When the higher norm specifies only the organ which is to enact the
lower norm, there are two possibilities:
1. The empowered organ X is specified individually. For example,

3 On the question of the Basic Norm of a positive legal order, cf. my Pare Theory of Law
(1967) 8, 18, 31, 44 ff., 50, 53,104,193-205, 208—10, 212, 214 ff., 222 f., 226 ff., 233 f., 315 f., 324,
339 f. Also ‘Das Problem der Gerechtigkeit’ (1960) 364, 404, 443. [Translator’s N0te: There is
an important footnote on the Basic Norm missing on p. 204 of the Pure Theory of Law (1967);
cf. Reine Rechtslehre (1960) 206.]
§ II Grounding the Validity of Norms 259
God empowers Moses to posit general and individual norms binding on
the members of the people of Israel. This is also the case with the Basic
Norm of a positive legal system, whose function was explained
previously.
2. The empowered organ is specified only generally. For example, the
constitution of a State empowers the current head of a certain family X
to posit general and individual norms binding on the members of the
State. In this case, the empowered organ is specified by the concept ‘head
of family X’.

aa) The Empowered Organ is Specified Individually. In the first case,

the validity of the lower norm is founded on the validity of the higher
norm (i.e. the lower norm corresponds to the higher norm), if the lower
norm is posited by the individual specified individually in the
higher norm, whatever the content of the lower norm. The validity of the
norm posited by Moses forbidding the Israelites to eat of the flesh of
certain animals is founded on the validity of the norm posited by God
empowering Moses to posit norms. The validity of the norm posited by
God ‘Human beings are not to kill human beings’ is, like all other norms
posited by God, founded on the presupposed validity of the Basic Norm
(i.e. corresponds to the presupposed Basic Norm) empowering God to
posit norms. The Basic Norm merely specifies the individual or
individuals empowered to posit norms. The validity of the historically
first constitution of a State is founded on the presupposed validity of the
Basic Norm (i.e. corresponds to the presupposed Basic Norm) if the
individual X who posited the constitution, or the individuals X, Y, Z . . .
forming the assembly which posited the constitution, or whose
behaviour constitutes the custom in which the constitution originates, is
or are empowered by the Basic Norm to posit the constitution. Since the
Basic Norm is directed to the norm whose validity is to be founded on
it—and not vice versa—this relation of correspondence must always
exist. A positive moral or legal order can never conflict with its Basic
Norm. That is the difference between the relation of a Basic Norm to a
positive moral or legal order, and that of Natural Law to a positive moral
or legal order. A conflict is always possible between Natural Law and a
positive moral or legal order, and it is essential that such a conflict be
possible.

[919) The Empowered Organ is Specified Generally If the empowered

organ is specified by the empowering norm only generally, that 1s, if the
empowered organ is specified by the concept of a certain organ, the
validity of the lower norm is founded on that of the higher empowering
norm (i.e. the lower corresponds to the higher) if the individual who is to
posit the lower norm is the one specified in the concept contained in the
260 Grounding the Validity of Norms ch. 59
empowering norm, that is, if the concrete representation of this
individual can be subsumed under the concept.

cc) The Reduction of Empowering to a Command. As was indicated in

an earlier context, the normative function of empowering someone
to posit norms can be reduced to a function of commanding. The
norm from God empowering Moses to posit norms can be formulated:
‘The children of Israel are to behave in accordance with the norms
posited by Moses and addressed to them.’ By this general norm from
God addressed to the children of Israel, Moses is empowered to posit
norms prescribing a certain behaviour on the part of the children of
Israel. If the norms to be posited by Moses are hypothetical, then the
general norm empowering Moses reads: ‘Under the condition specified
in the norm posited by Moses, the consequence (i.e. the behaviour of the
children of Israel) specified in the norm posited by Moses is to occur.’
Or more generally: The higher norm empowering an individually or
generally specified organ to posit lower norms can be presented as a
hypothetical general norm prescribing that under the condition specified
in the lower norm by the organ specified in the higher norm, the
consequence specified in the lower norm posited by the organ specified
in the higher norm is to occur. If the norm is a legal norm empowering
individual Xor individuals X, Y, Z . . . to posit legal norms, then it reads:
‘Under the condition specified in the norm posited by individual X (or
individuals X, Y, Z . . .), the legal consequence (a coercive act) specified
in the norm posited by individual X (or individuals X, Y, Z . . .) is to
occur.’ If the Constitution of a State empowers the current head of a
certain dynasty X to posit general legal norms but does not specify their
content, its meaning is: ‘Under the conditions specified in the general
norms posited by the current head of dynasty X, the legal consequences
(coercive acts) specified in the general norms posited by the head of
dynasty X are to occur.’ The Basic Norm empowering the author of the
constitution to posit the constitution reads: ‘Under the condition
specified in the constitution posited by the author of the constitution or
in the norms posited on the basis of this constitution, the legal
consequence (the coercive act) specified in the constitution posited by
the author of the conStitution, or in the norms enacted on the basis of
this constitution, is to occur.’
The empowering norm is a blank norm. The conditioning state of
affairs and the conditioned legal consequence are empty forms, that is,
their content is not specified in the empowering legal norm, but they
point to further specification by a legal norm to be posited by the
empowered organ. The relation between this blank legal norm and a
general legal norm posited by an empowered organ and attaching a legal
consequence with a specified content (a coercive act) to a state of affairs
§ II Grounding the Validity of Norms 261
with a specified content in this: the conditioning state of affairs with a
specified content can be subsumed under the conditioning state of
affairs—representing an empty form—in the empowering legal norm,
and the legal consequence with a specified content can be subsumed
under the legal consequence—representing an empty form—in the
empowering legal norm. The legal norm posited by the empowered
organ is founded on the empowering legal norm, that is, corresponds to
the empowering legal norm, not only in that the former is posited by an
individual who is specified individually or generally in the empowering
legal norm, but also in that the conditioning state of affairs and the
conditioned legal consequence in the legal norm posited by the
empowered organ can be subsumed under the conditioning state of
affairs and the conditioned legal consequence in the empowering legal
norm. Both norms contain generally specified states of affairs and
legal consequences, that 15, concepts of States of affairs and of legal
consequences. But the degree of generality or abstractness 13 different 1n
the two norms. The empowering norm is more general than the norm
posited by the empowered organ, the concepts of the conditioning state
of affairs and of the conditioned legal consequence contained in the
empowering legal norm are more abstract than the corresponding
concepts in the legal norm posited by the empowered organ. The less
abstract concept is subsumable under the more abstract, as, for example,
the concept ‘Negro’ is subsumable under the concept ‘human being’.
The difference between the case where the empowered organ is
specified individually and that where it is specified generally is that it is
only in the latter case that there exists a subsumption relation between
the concrete empowered organ which posits general norms, and the
concept of an empowered organ contained in the empowering legal
norm.

B. The Relation hetween Higher and Lower Norms where

the Content is Specified
In the case where it is n0t only the organ but also the content of the
lower norm which is specified by the higher norm, the validity of the
lower norm is founded on that of the higher norm (i.e. the lower norm
corresponds to the higher norm) if (1) it is posited by the organ
empowered by the higher norm, and also (2) its content corresponds to
the specification contained in the higher norm. Three cases must be
distinguished.

aa) The Relation hetween Two General Norms. The first case is that in
which the higher and lower norms are both general norms. Both norms
attach a specific consequence to a specific condition. But the two norms
262 Grounding the Validity of Norms ch. 59
exhibit differing degrees of generality. The higher norm is more general
than the lower. For example:
1. The higher norm reads: ‘If someone has done something
evil to another, something evil is to be done to him.’ (The
Principle of Retribution)
2. The lower norm reads: ‘If someone intentionally causes
bodily 1njury to another, he 1s to be punished with a term
of 1mp_risonment of from one to five years.
Both the higher and the lower norm contain two concepts, that of a
conditioning state of affairs and that of a legal consequence. But the two
concepts in the higher norm are more general than those in the lower
norm. The lower norm corresponds to the higher norm if‘the concept of
the conditioning State of affairs contained in the lower norm can be
subsumed under that contained in the higher norm, and the concept of
the legal consequence contained in the lower norm can be subsumed
under that contained in the higher norm.

[919) The Relation between a General and an Individual Norm. The

second case is that where the higher norm 'is general, and the lower
individual. The higher norm contains three concepts: that of a competent
organ, that of a conditioning state of affairs, and that of a legal
consequence. For example: ‘If a competent court, i.e. a court established
in a generally specified way—the concept of a competent organ—finds
that a person intentionally caused the death of another person by his
own behaviour—the concept of murder—then the competent organ is to
"posit an individual norm prescribing that this person (every person who
has been found to have committed murder) is to be hanged’—the
concept of capital punishment. Or: ‘If a competent organ finds that a
person has contracted with another to pay him a certain sum of money
within a certain period of time, then the competent organ, upon a motion
by the creditor, is to posit an individual norm prescribing that execution
is to be carried out upon the property of the debtor.’ The lower norm is
an individual norm. It can be unconditional or conditional. For example:
1. The competent court finds that Maier intentionally caused the death of
Schulze by thrusting a dagger 1nto his heart, i. e. murdered Schulze. The
competent court thereupon posits the norm ‘Maier 13 to be hanged.’ This
individual norm is unconditional. Or:
2. The competent court finds that Maier contracted with Schulze to
pay him 1,000 within two weeks, that Maier did not pay 1,000 to Schulze
within two weeks, that Schulze sued Maier for 1,000; and the competent
court thereupon posits the individual legal norm ‘If Maier does not pay
Schulze the agreed 1,000 within three days of the coming into force of
this decision, execution is to be carried out upon his property.’ That is a
§ II Grounding the Validity of Norms 263
conditional individual norm. But the condition is different from that
specified in the general legal norm.
The individual norm corresponds to the general norm:
( 1) if it is posited by an individually specified organ empowered by the
general norm to posit the individual norm, i. e. if the representation of the
individually specified organ which makes the finding of fact and posits
the individual norm can be subsumed under the concept of the
competent organ contained in the general norm; and
(2) if the representation of the individually specified state of affairs
found by the competent organ can be subsumed under the concept of a
conditioning state of affairs contained in the general norm (NOTE 177);
and
(3) if the representation of the legal consequence decreed to be
obligatory in the individual norm can be subsumed under the concept of
a legal consequence contained in the general norm (NOTE 178).

cc) The Relation between Two Individual Norms. The last case is that
where both the higher and lower norms are individual norms. For
example, soldier C belonging to a given company deserts in wartime.
Company commander A may have him shot only if he 1s so empowered
by regimental commander B. The case is submitted to B and he orders A,
the company commander, to have deserter C shot, that is, by an
individual norm B empowers A to posit the individual norm ‘C is to be
shot.’ Regimental commander B’s individual norm prescribing the
positing of the individual norm by company commander A, specifies the
content of the norm to be posited by A. The command, i.e. the validity
of the individual norm ‘Deserter C is to be shot’, is founded on the
validity of the individual norm posited by regimental commander B, that
is, the lower norm corresponds to the higher norm if it is posited by
company commander A and if its content 1s the same as that specified 1n
regimental commander B’s individual norm for the content of the
individual norm to be posited by company commander A (NOTE 179).

dd) Correspondence as a Salasamption Relation. When the relation of

correspondence between two norms is a subsumption relation, it is the
logical relation which exists between a more general (or abstract) concept
and a less general (or abstract) concept or between a general (or abstract)
concept and a concrete representation (or individual concept) (NOTE
180). What is subsumed is not the lower norm under the higher. For the
higher norm is not a concept, but a concrete object of ethical or juristic
cognition. But since the general norm is expressed in a sentence, it can
contain concepts under which can be subsumed concepts or concrete
representations of individually specified States of affairs and individually
264 Grounding the Validity of Norms ch. 59
specified legal consequences (decreed to be obligatory) contained in
other norms (NOTE 181). In so far as such a subsumption 1s a logical
thought—process which takes place when the validity of one norm is
founded on that of another, logic is applicable to the relations between
norms. This relation is not an inference, but it is a logical relation.

ee) Correspondence as a Special Logical Relation. That is true also

when the relation of correspondence between two norms is not a
subsumption relation, as in the first and last examples given earlier. In
the firSt case (cf. above, A. aa) an individually specified organ is
empowered to posit norms but the content of these norms is not
specified by the empowering norm, and the norm posited by the em-
powered organ corresponds to the empowering norm in so far as the norm—
positing organ is the same as the one individually specified in the
empowering norm: there then eXiSts a relation between the empowering
norm and the positing of a norm by the empowered organ. God
empowers Moses to address norms to the people of Israel, and Moses,
making use of this power, i e. acting in a way which agrees with this
power, posits the norm forbidding the consumption of the flesh of
certain animals. There 1s no relation—at least no immediate relation—
between the empowering norm and the nOrm posited by the empowered
organ, the relation 13 between the empowering norm and the act of
positing the norm by the empowered organ. The relation between the
higher and lower norms is mediated by the act of positing empowered by
the higher norm. The relation between the empowering norm and the act
of positing the other norm is like that between a command and
compliance with the command. In so far as logic is concerned with this
relation—and one cannot see why not—logic 1s also applicable to the
relation between a norm and the actual behaviour which agrees with the
norm. _
The same is true of the last case mentioned above (cf. above, B.
cc). By positing the command to shoot deserter C, company commander
A obeys the command of regimental commander B to have deserter C
shot. In this case, the individual norm posited by the company
commander corresponds to the individual norm posited by the regimental
commander, not only because the former is posited by the organ
specified in the latter, but also because the content of the former
corresponds to the content—specification contained in the latter (NOTE
182).
ff) Correspondence of Content between Higher and Lower Norms.
Finally, we should take note of the case where what the higher norm
decrees to be obligatory 1s not the positing of a norm, but some other
behaviour, and a lower norm is valid when its content is specified by the
§ II Grounding the Validity of Norms 265
higher norm though the latter contains no specification concerning the
positing of other norms and in particular no specification as to who is
empowered to posit the lower norm in question. For example:
1. Everyone is to keep his promises.
2. Maier is to keep his promise to Schulze to pay him 1,000.
The validity of the lower norm is founded on that of the higher norm,
i.e. corresponds to the higher norm, only if the behaviour decreed to be
obligatory in the lower norm corresponds to the behaviour decreed to be
obligatory in the higher norm, and in particular, if the lower norm
decrees to be concretely obligatory behaviour which the higher norm
decrees to be abStractly obligatory. The validity of norm 2 is founded on
that of norm 1, no matter who posits norm 2. For norm 1 does not
specify who is empowered to posit norm 2. Everyone is empowered to
posit norm 2. The validity of norm 2 is founded on that of norm 1, and
corresponds to norm 1, because the behaviour individually decreed to be
obligatory in norm 2 corresponds to that generally decreed to be
obligatory in norm 1.
 60
The Logical Stractare ofa
Hypothetical Nown—The
Relation of Condition and
Consequence
As was indicated previously, general norms are hypothetical, that is, they
attach a generally specified consequence decreed to be obligatory to a
generally specified condition. But individual norms can also be hypo-
thetical. This is true particularly of legal norms. As has already been
mentioned, a court can decide ‘If within three weeks of the coming into
force of this decision Maier does not pay Schulze the 1,000 due to him,
execution is to be carried out upon his property.’ Or ‘If within three
years of this decision Maier is found guilty of a punishable delict, he is to
be imprisoned for three years beyond the punishment inflicted on him
for the delict.’
There thus arises the problem of the conditional norm, that is, the
question: Can the relation of condition and consequence contained in a
norm be understood as a logical relation as is the relation of condition
and consequence contained in a Statement, even though the norm—
unlike the statement—is neither true nor false, and the principles of
traditional logic relate to truth and falsity, or—as it has become usual to
say—to ‘truth—value’? Given this fact about logic, some people think
that the relation of condition and consequence contained in a norm—
and hence the structure of a hypothetical norm—can be considered a
logical relation only if a Statement can be considered to be implicit in the
norm. But, as was indicated previously, this implication does n0t exist:
and it is not necessary to assume that it does in order to consider the
relation of condition and consequence contained in a norm as a logical
relation. For it cannot be denied that the relation of condition and
consequence can be contained both in a statement which is true or false,
and in a norm which is neither true nor false. What is true or false in a
statement asserting an event as conditional (i.e. as a'consequence of
another event which is its condition) is the whole statement, and not the
relation of condition and consequence contained in it. The question
whether the relation between condition and consequence obtains is the
question whether the statement is true. If a norm exists in which a certain
 Logical Structure of Hypothetical Norm 267
behaviour is decreed to be obligatory only on a certain condition (i.e. as a
consequence of this condition), the question whether this relation is
decreed to be obligatory is the question whether the norm is valid or not
(NOTE 183). Consequently, the essence of a relation of condition and
consequence contained in a sentence is not affected, whether the
consequence subject to the condition 13 asserted as exisring or whether 1t
is decreed to be obligatory. If the relation between condition and
consequence contained in a sentence which asserts the consequence as
existing is a logical relation, there is no reason not to consider it as a
logical relation when it is contained in a sentence decreeing the
consequence to be obligatory.
The result of the preceding analysis is that while it is true that in a
normative syllogism the principle of contradiction and the rule of
inference are not applicable to the relation between norms, nevertheless
other principles of logic are applicable to this relation, as in the case of
the subsumption of the particular under the general, the correspondence
between an act whose meaning is a norm and a norm empowering this
act, and the relation between condition and consequence.
 61
15 There a Specifically ‘Jaristic’
Logic?
In juristic literature, it is sometimes claimed that the logic legal science
makes use of—and in particular, the logic applied to legal norms—is not
general formal logic, but a different, specifically ‘juristic’, logic. This
view is the object of dispute. The Polish logician Kalinowski firmly
rejects it.1 The Belgian philosopher Ch. Perelman2 firmly supports it.
The instances usually advanced in favour of the existence of a specifically
juristic logic are the so—called analogical inference which jurists make use
of and the argumentam a maiore aa’ minus which they constantly
employ.

I. Analogical Inference

Analogical inference, or the argumentam a simile, occurs mainly in

judicial decisions when a general legal norm is to be applied to a concrete
case.’ It is supposed to consist in the judge’s applying a valid general
legal norm to a state of affairs which is not identical with, but in the
judge’s view is similar to, the one abstractly specified in the general legal
norm, or—as it is sometimes put—which agrees in essentials with the
state of affairs specified in the legal norm to be applied. But if the
concrete state of affairs to which the judge’s decision relates is not
identical with that abstractly specified in the general legal norm, then the
general legal norm cannot be applied to the State of affairs before the
judge. The judgment that a ‘similarity’ or ‘agreement in essentials’ eXiSts
between the concrete state of affairs before the judge and that abstractly
specified in the general legal norm is highly subjective, and what appears
to one judge as ‘similar’ or ‘agreement in essentials’ may not appear so to
another.
1 Kalinowski (1959a: 50): ‘There are no special logics—mathematical, philosophical, juriStic,
or any other—but there are applications of the laws or rules of logic toat court in mathematics,
in philosophy, in legal dogmatics, etc.’
Perelman (1960: 230): ‘. . . a logician who refuses to study the structure of forms of
reasoning used outside of mathematics, who refuses to recognize the particular nature of legal
reasoning and of practical reasoning in general, does philosophy and mankind a disservice.’
3 Cf. Klug (1966: 97): ‘The analogical inference becomes of interest in legal theory and
practice mostly in connection with the application of propositions of law to cases.’
§I Is There a ‘Juristic’ Logic? 269

When the legal order empowers the law——applying organ to apply valid
general legal norms analogically, 1t grants the law—applying organ a wide
area of discretion within which this organ can create new law for the case
before 1t. 4Juristic theory therefore tries to show that this discretion of
the judge 1s limited, by claiming that the judge must keep to the spirit of
the law, if he considers that the state of affairs before him 1s similar to, or
agrees in essentials with, that specified 1n the norm to be applied. Of
course, it is only the judge who can determine what the ‘spirit of the law’
is, and different judges in different cases can come to different
conclusions. Basically, the ‘spirit of the law’ is a fiction which serves to
give the impression that the judge applies nothing but valid law even in
cases where the decision is supposedly analogical, while in fact he creates
new law for the concrete case. But he must be empowered thereto by the
legal order. That is clear from the fact that according to most modern
legal systems an analogical decision is forbidden in certain cases, namely
in criminal cases. Such a prohibition presupposes that such decisions are
permitted—if not explicitly, then tacitly—in other cases.
What really happens 1n cases where traditional jurisprudence speaks of
an analogical judicial decision 1s not an inference 1n which the validity of
the individual norm in the judicial decision follows logically from the
validity of a positive general norm, but rather the positing—in virtue of
the power conferred by the valid legal order—of an individual norm
which does not correspond to any materially determinate general legal
norm. This is obvious in the example which Ulrich Klug gives of an
analogical legal inference (1966: 120). The prescriptions of articles 433 ff.
of the German Civil Code concerning the sale of goods are applied
analogically to the sale of a business (including its custom). The sale of a
business together with its custom is clearly not a case of sale of goods.
The judge who applies to the former the prescriptions which the statute
decrees only for the latter posits an individual norm which does not
correspond to any valid general norm. He creates new law. And the
validity of this individual norm cannot be obtained by way of a logical
inference: not only because there is no general norm already valid to
serve as a major premiss, but also—and above all—because, as was
emphasized before, the validity of every positive norm, and hence of the
individual norm representing the judicial decision, is conditional upon an
act of will whose meaning it is, and this act of will cannot be produced by
way of a logical inference (i.e. a thought—process).

“ The commentary on the German Civil Code produced by former members of the
Reichsgerickt (Das Bziirgerlicbe Gesetzbuck: Commentar, bemusgegeben von Rez’cbsgerichts-
niten and Bundesrichtem (10th edn. Berlin, 1953) ) defines the concept of legal analogy in the
following way: ‘when a given state of affairs is n0t governed by the statute, but is so similar to
another state of affairs that the application of this statute suggests itself and seems appropriate’
(i. 8).
270 Is There a ‘Juristic’ Logic? ch. 61

Furthermore, it muSt be n0ted that it is a matter of dispute whether so—

called analogical inference has any place at all in logic. Analogical
inference is a probabilistic inference, that is, the sentence which is the
conclusion of the inference cannOt be claimed to be strictly true, but only
more or less probable. R. Carnap has shown that no foundation can be
found for analogical inference, either in classical or in modern logic
(1945: 72 ff.; 1962: 569 f.); and before that E. Mach (NOTE 184) had claimed
that analogical inferences were not a matter for logic but for psychology.
If what is called an analogical inference is not a logical process at all, then
this is true a fortiori of so-called juriStic analogical inference. For the
positing of the individual norm by the law-applying organ does not
occur—as was indicated—by way of a logical thought—process, n0t even
in the case where the individual norm corresponds to an already valid
general norm which attaches a generally specified legal consequence to a
generally specified state of affairs, and so does not create new law (as a
so-called juristic analogical inference does).

11. The Argumen tum a Maiore ad Min us

The argumentum a maiore ad minus consists—as Klug puts it——in

‘concluding from the validity of a proposition of law for a general class
of cases to the validity of this proposition for special cases’ (1966: 137).
He gives the following example: In virtue of article 4919 of chapter 3 of
the German Criminal Code,
anyone participating in a conspiracy directed at the commission of felonies against
human life or considering such as means to other ends, shall not be punished if he
notifies the authorities or the contemplated victim so timely that a felony against
human life intended to be committed in furtherance of the endeavours of the
con5piracy can be prevented.
From this, the validity of a norm to the effect that anyone actually
preventing the occurrence of the crime shall not be punished is inferred.
That is, from the validity of the positively posited general norm
prescribing that an informant is not to be punished, there supposedly
follows logically the validity of a general norm which has not been
positively posited and which prescribes that whoever in fact prevents the
occurrence of the crime is not to be punished. According to Klug, this
corresponds to the schema of classical logic:
All 5 are P (propositio subaltemcms).
Therefore, some 5 are P (propositio subaltemam).
But this would be the schema if the inference were:
All informants are to remain unpunished.
Therefore, some informants are to remain unpunished.
§ III Is There a ‘Juristic’ Logic? 271

Nevertheless, Klug remarks latcr that the example‘presupposes that a

statute has determined the class of cases with which 1t is concerned 1n a
way which 13 general enough that the cases which seem at first to be
doubtful do belong within the general class’ (p. 139). But this means that
the general legal norm prescribing that the informant is not to be punished
is interpreted in such a way that it also prescribes that whoever in fact
prevents the occurrence of the crime is not to be punished, since it is
assumed that if the legislator had thought of the case of actual hindrance,
he would have prescribed that the person who actually prevents the
crime is not to be punished either. But then we are not inferring the
validity of one general norm from that of another, but on the basis of a
teleological consideration we are assuming that the validity of the norm
which has not been posited 13 already given. That may be justifiable from
a teleological point of view. But there is no question of a logical
inference.
Klug also remarks:
Of course, we should not conceal the fact that the use of the expression argumentum
a maiore ad minus’ in juristic practice is extraordinarily 1mprecise. It lacks any precise
indication of the logical structure of the inference. It 15 easy to surmise that many
authors would give up the use of this term borrowed from classical logical theory, if
they were aware of the exact structure of this subalternation-inference at least
according to conventional logic, to say nothing of modern logic. (p. 139)
If we consider the structure of the subalternation-inference, then what is
called the argument 4 maiore ad minus in traditional jurisprudence
cannot be considered a logical inference at all (p. 145). What we do have
is what Klug calls ‘interpretation arguments’; according to him, they do
not represent any special logical operation, but serve to establish legal
theses (NOTE 185).

III. Summary

Thus there can be no question of a specifically‘juristic’ logic It 15 general

logic which 13 applied both to the descriptive sentences of legal science
and—as far as logic 1s applicable here at all—to the prescriptive norms of
law. Ilmar Tammelo has clearly expressed this: ‘Juristic logic, as I
understand it, is formal logic employed in legal reasoning—It does not
constitute a special branch, but is one of the special applications of
formal logic’ (1955: 300).
272 Notes 1—2

Note 1

The necessity of distinguishing between an act and the meaning of the act was
shown by Heinrich Rickert (1910: 19ff.). But his starting-point was not the act
whose meaning is a norm—the norm-positing act—but the act by which an
object is valued.
Jerzy Wroblewski rejects the view that a legal norm is a ‘meaning’: ‘From our
point of view, however, we have to deal with the problem of the meaning of the
norm taking it as a prescription of the due behaviour, not as the meaning of it’
(1964: 261). But it should be noted that we can speak of a norm as a meaning—the
meaning of an act of will—and also of the meaning of a norm. The meaning of a
norm becomes problematic when the linguistic expression in which the norm appears
is not clear. Ascertaining the meaning of such a norm is the purpose of the
interpretation of the norm. Wroblewski says as much: ‘Legal interpretation starts
when the norm to be applied is not clear enough to decide the case in question. By
the means of legal interpretation one tries to remove these deficiencies of the meaning
of the norm in question . . .’ (p. 263). This ‘interpretation’ gives the answer to the
question ‘What is really the meaning of the words which are to be understood as a
norm?’ But this meaning—the meaning of the norm—is different from the meaning
of the act of will which is metaphorically said to ‘create’ the norm, a phrase which
merely serves to express the fact that the norm is its meaning, the meaning of this act
of will.
Wroblewski’s pr0posed ‘formula of legal norm’ reads as follows: ‘In situation S a
person from the class of persons P with characteristics C has to behave in the manner
B’ (p. 262). An objection to this formula is that it does not apply only to legal norms,
since it lacks the essential element which distinguishes a legal norm from other
norms, viz. the coercive act (punishment or execution of judgment). (See below,
ch. 35.) It applies equally to moral norms and to norms of manners [Sitte]. On p. 263,
in connection with his formula for a legal norm, Wroblewski stresses: ‘We discard all
theories of the meaning of the legal norm as a sentence about some objective
“Ought”, as being not materialistic.’ But the words ‘has to behave’ are synonymous
with ‘ought to behave’. Since Wroblewski says on p. 261 ‘we have to deal with the
problem of the meaning of the norm taking it as a prescription of the due behaviour’,
i. e. since the norm is a prescription, the Ought must appear as an essential element 1n
the concept of a norm, whether one ’s position is materialistic or idealistic. There 1s no
diSputing the fact that the wording of a norm can have different significations and
consequently that the norm can be interpreted in different ways in different
situations. But it is inadvisable to interpret this fact as Wroblewski does: s‘ince the
context of the understanding and applying of the legal norm is changing, the norm in
question changes 1ts meaning’ (p. 265). The norm does not ‘change its signification;
it has many different significations (or meaning-contents).

Note 2

Georg Simmel says: ‘There is no definition of Ought’ (1892. 8). Likewise Henry
Sidgwick: ‘What definition can we give of “ought”, “right” and other terms expressing
the same fundamental notion? To this I should answer that the notion which these
terms have in common is too elementary to admit of any formal definition’ (1963:
32).
 Notes 2—3 273

Against this thesis that Ought cannot be defined—a thesis I had already adOpted
from Simmel in my book Hauptprohleme der Staatsrechtslehre (1911), 7—Albert
Vonlanthen, in his polemical book against me, claims that Ought does not constitute
‘such a basic concept as I, that it cannot be subjected to any definition’ (1965: 46).
But Vonlanthen’s pr0posed definition of Ought amounts to nothing more than the
empty tautology ‘Ought is what ought to be’—as I pointed out in my reply to him,
‘Rechtswissenschaft oder Rechtstheologie?’ (1966).

Note 3

Cf. also Ch. Perelman and L. Olbrechts-Tyteca: ‘That which occurs most often, the
usual, the normal, is the subject of one of the most commonly used loci, so much so
that for many pe0ple the step from what is done to what should be done, from the
normal to the norm, is taken for granted’ (1969: 88). But the authors observe:
The passage from the normal to the normative . . . has rightly been considered an error of logic.
Nevertheless, it should be recognized as one of the valid foundations of argumentations,
inasmuch as this passage is implicitly admitted, whatever the domain under consideration. It has
left its mark in the German word Pflicht, which is close to man pflegt . . . The passage from the
normal to the norm is a phenomenon of common occurrence and seems to be taken for granted.
On the other hand, dissociating them and opposing them by claiming primacy of the norm over
the normal would require justification by argumentation: this argumentation will aim at
lowering the value of the normal, mostly by using loci other than those of quantity. (p. 88)
Even though, as the authors say, ‘the passage from the normal to the normative [is]
rightly . . . considered an error of logic’, they think it can still be considered ‘one of
the valid foundations of argumentation’, since they mean by ‘argumentation’ not a
strictly logical process, but something different which they call a ‘quasi-logical’
process (p. 193).
Manfred Moritz refers to the fact that David Hume had already claimed in his
Treatise of Human Nature ‘that “sollen—sentences” cannot be derived from is- 6‘

» 1.
sentences .

Today we would say that imperatives cannot be derived from indicatives. . . . Even if we
understand ‘sollen-sentences’ to be judgments, Hume’s argument remains valid: from sentences
which state that something is, we cannot derive sentences which state that something ought to
be. But Hume’s argument is also valid when we interpret ‘sollen—sentences’ as imperatives.
(1954; 78f.)
This is what Hume says in A Treatise ofHuman Nature (pp. 469—70):
In every system of morality, which I have hitherto met with, I have always remark’d, that the
author proceeds for some time in the ordinary way of reasoning, and establishes the being of a
God, or makes observations concerning human affairs; when of a sudden I am surpriz’d to find,
that instead of the usual copulations of pr0positions, is, and is not, I meet with no pr0position
that is not connected with an ought, or an ought not. This change is imperceptible; but is,
however, of the last consequence. For as this ought, or ought not, expresses some new relation
or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d; and at the same time that a
reason should be given, for what seems altogether inconceivable, how this new relation can be a
deduction from others, which are entirely different from it. But as authors do not commonly
use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this
small attention wou’d subvert all the vulgar systems of morality, and let us see, that the
distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d
by reason.
Moritz continues: ‘Poincaré makes the same claim. But he goes a step further: to
the negative thesis that imperatives cannot be derived from judgments, he adds the
274 Note 4

positive thesis that imperatives can be derived only from imperatives.’ Poincare’ says:
‘If b0th premisses of a syllogism are in the indicative mood, the conclusion will also
be in the indicative mood. For an imperative conclusion to be possible, at least one of
the premisses would have to be in the imperative mood’. (On Poincare, see below,
ch. 21.)

Note 4

Karl George Wurzel states that it is certain that in reality (at least up to a high degree)
‘the rules of law also inhere in the facts to which they relate just as much as, for
instance, the laws of motion inhere in bodies, and are not a constraint imposed on
them from Without’ (1904: 32). Hence he says that ‘to a certain degree legal norms are
natural laws of social deve10pment’ (p. 31). This is Natural Law doctrine. But Wurzel
rejects Natural Law doctrine. He claims it can be seen to be a failure from the fact
that it cannot ‘pass the test of reality’: ‘by failing to agree permanently with it, reality
proved the defective character of this legal thought’ (p. 32). But even a norm which
‘inheres’ in a correctly known reality can be violated in reality, that is, the actual
behaviour of a human being can fail to agree even with such a norm.
F. S. C. Northrop (1959: 8ff.) asserts that the development of modern natural
science, and especially the discovery of atomic energy, has or should have
fundamental repercussions on the shaping of law. The nature which our law has
presupposed heretofore is the same as that of the ancient Greeks. This nature, or
more exactly our idea of this nature, has been fundamentally changed (allegedly) by
the discovery of atomic energy.
The first thing to be said about this is that even before the discovery of atomic
energy our idea of nature was basically different from that of the ancient Greeks. The
change in natural science brought about by the discovery of electricity was no less
fundamental than that brought about by the discovery of atomic energy. Law, whose
goal is to prevent human beings—or at least a particular group of them—from doing
evil to each other, remains the same—in this respect—whether human beings use a
dagger, a firearm, electric current, or atomic energy to wound or kill each other. Law
prohibits the violation of the interests of others, and in particular killing other
pe0ple, whatever the means which may be used to do so. The fact that this legal norm
is valid only with certain exceptions—such as self-defence or the use of sanctions—is
irrelevant here. Northrop says: ‘In an atomic age civilized men simply cannot afford
to have war’ (p. 10). But long before atomic energy was discovered, war had been
forbidden by international law (the Briand-Kellogg Pact, the Just War Principle). It is
only with respect to the choice of sanctions that the increasing knowledge of nature_
can have repercussions on law, in that we can provide for not only hanging or
drowning as sanctions, but also shooting and the use of the electric chair or atomic
energy. But even that is not necessary at all. Hanging can still remain the means of
capital punishment 1n spite of the discovery of atomic energy.
Northrop considers the most important repercussion upon law of recent achieve-
ments in natural science to be the replacement of positive law by Natural Law
(pp. 12ff..) In so doing he proceeds from an untenable definition of law and a
mistaken View of the nature of Natural Law:
Law is an ordering of human beings with respect to one an0ther and to nature. A law is good if
it orders these human beings with respect to one another and nature in the light of a true, and as
far as possible complete, knowledge of what men and nature are. A law is bad not because it is
naughty but because in its ordering of man with respect to nature it puts them together in
relation to nature in a way that is contrary to what true scientific knowledge reveals both men
and nature to be. (p. 11)
 Note 4 275

Law, as a fundamentally social ordering, regulates the relation of human behaviour to

other human beings; it does not regulate human beings or the relation of human
beings to nature. This latter relation appears in law only in so far as it is implicit in the
behaviour of human beings towards other human beings. Law is good when it attains
its goal, and bad when it does not. This attaining or not of its goal is essential for an
evaluation of law. But it is precisely this goal which Northrop completely ignores in
his definition. If a law were good only when in its regulation of human behaviour it
proceeded from a ‘true’ scientific insight into nature, then there would be no good
law at all. For experience teaches that what is considered to be a ‘true’ insight today
can be recognized to be false in the future.
The Natural Law which Northrop postulates, is—as is indicated in the text—a
system of norms which is immanent in nature and which is posited by the will of
nature. There is, and there can be, no such law. The name ‘Natural Law’ is given to
whatever appears just to a given Natural Law teacher, which he then projects onto
‘nature’ in order to give it the necessary authority. Northr0p says: ‘. . . this jus
naturae must be taken in its original Greek and Roman Stoic meaning, as literally a
law of nature verified by physics’ (p. 12). A ‘law of nature’ is a law of actual
occurrences, a law of Is, and not law in the sense of Recht, a norm prescribing what
ought to be, and in particular how human beings ought to behave. The demand that
positive law be replaced or supplemented by Natural Law was raised and rejected, as
NorthrOp himself observes, by the ancient Greeks, and thus long before the
discovery of atomic energy.
Northr0p’s conception of legal positivism, which he wants to replace by Natural
Law theory, is just as wrong as his definition of law and his view of the nature of
Natural Law: ‘Legal positivism is the theory that cultural norms of justice are to be
found and understood solely in terms of the positive legal constitutions, statutes,
codes and institutions themselves, perhaps supplemented by police power or force’
(p. 44). Thus, following the sociologist of law Eugen Ehrlich, he Opposes the ‘living
law’ to positive law (p. 52), and this certainly does not agree at all with his demand
that positive law be replaced by Natural Law. ‘The essence of this jurisprudence [i.e.
Ehrlich’s] is that a distinction must be drawn between the positive law and the living
law. By “living law” is meant the underlying inner order of the behaviour of people in
society apart from the statutes, codes and cases of the positive law.’ His approval of
Ehrlich’s theory of ‘living law’ is clear from his statement: ‘that positive law ought
to be which corresponds to the living law of the society to which it refers, and that
positive law ought not to be which does not so correspond’ (p. 54).
The theory of legal positivism is far from finding ‘norms of justice’ only in positive
law. Quite the Opposite: it insists with the greatest force on keeping positive law and
justice separate. From the point of view of legal positivism, positive law does not
consist only in the norms contained in the constitution and the statutes—‘codes’ are
statutes, and ‘institutions’ are legal norms which form a unity with respect to a
certain object of regulation. Positive law also includes norms which are created by
way of custom. As far as the concept of ‘living law’ coined by Ehrlich is concerned,
its distinction from positive law is untenable. It is obvious that the ‘inner order of the
behavior of pe0ple in society’ is not ‘law’ as long as this inner order is not applied by
the law-applying organs, and in particular by the courts. This inner order may amount
to manners [Sitte] or morality, but it becomes law only if it is applied by the organs
competent to do so. This so-called ‘living’ law can be different from the materially
determinate general norms of statutory and customary law. But the law-applying
organs must be empowered to apply it by valid statutory or customary law, even if
the way this happens is merely that the ‘living’ law applied by these organs becomes
law in virtue of the positive-law principle of res judicata. Consequently, if so-called
‘living law’ is law, it is part of positive law, and so there can be no quesrion of a
distinction between them, or of an opposition of one to the other.
276 Notes 5—6

Note 5

The linguistic usage according to which a certain state of affairs ‘requires’ a certain
behaviour or gives rise to certain duties or is the reason for certain duties is the
result—consciously or unconsciously—of the characteristically Natural Law pre-
supposition that certain norms of human behaviour are immanent in certain actual
states of affairs. This linguiStic usage is misleading. For it is not the actual state of
affairs which requires a certain behaviour or which is the reason for the duty to act in
this way. The state of affairs is merely the condition under which a norm
presupposed to be valid decrees a certain behaviour to be obligatory (commands this
behaviour). If we let ourselves be guided by this linguistic usage, we come to the view
that ethics—like natural science—has no other foundation than the cognition of
facts.
An example of this is to be found in E. F. Carritt, who says: ‘. . . moral phi1050phy
. . . like other sciences . . . has no other basis than our apprehension of the facts . . .’
(1947: 6). In the chapter ‘The Ground of Obligation’, he continues:
The general question is whether our obligations, and consequently our duties [by ‘duty’ he
understands ‘the strongest present obligation’ (p. 3) ] depend on our actual situation, including
our capacities for affecting it and the consequences of what we may immediately bring about, or
upon our beliefs about that situation, or upon our moral estimate of what the supposed
situation demands. (p. 14)

On p. 77 Carritt asserts ‘that obligations and duties arise out of some actual or
believed situation; that on the objective view they arise from the actual, on the
subjective from the believed situation, and on the putative from the belief about what
is morally required by the believed situation’ (stress added). Without paying any
attention to the validity of norms, Carritt proceeds from the assumption that a
certain situation ‘demands’ a certain duty, that a certain duty is ‘required’ by a certain
situation. But it is possible for a duty to be ‘morally required’ only if a moral norm
institutes such a duty. This moral norm is not immanent in the situation. But Carritt
speaks of ‘the situation and its moral implications’ (p. 21; stress added). That is a
typically Natural Law conception of the problem of ethics.

Note 6

Edmund Husserl thinks it is possible to discover a signification of sollen that does not
involve any connection with a will:
The original sense of ‘shall’ or ‘should’, which relates to a certain wish or will, a certain demand
or command, is plainly too narrow, e.g. You shall listen to me, X shall come to me. As we speak
in a wider sense of a demand, where there is no one who demands, and perhaps no one on
whom demand is made, so we frequently speak of a ‘shall’ or a ‘should’ which is independent of
anyone’s wishing or willing. If we say ‘A soldier should be brave’, this does not mean that we or
anyone else are wishing or willing, commanding or requiring this. . . . ‘A soldier should be
brave’ rather means that only a brave soldier is a ‘good’ soldier. (1970: pp. 81 f.)

This is a value-judgment, and as is clear from what follows, an objective value-

judgment which is valid not only for the subject making it, but for everyone. Husserl
says: ‘Since this value-judgment holds, everyone is entitled to demand of a soldier
that he should be brave.’ Here Husserl refers to a person who actually does demand;
and the value-judgment is valid—as an objective value—judgment—only if there is a
valid norm prescribing that a soldier ought to be brave, or—as a subjective value-
judgment—only if the person making the value-judgment wills that a soldier is to be
 Note 6 277

brave. Consequently it is only this subject, and not everyone (as Husserl says), who
can demand that a soldier be brave. If Ought can have a meaning—more correctly, if
Ought can be a meaning—without being related to any will, if we can speak of a
demand ‘Where there is no one who demands’, then we can also speak of a norm
without any act of will of which it is the meaning. Now, it is possible to speak of a
demand when in reality there is no one there making a demand. But then we are
speaking of a demand as if there were someone there making the demand, a purely
imaginary, fictitious demander. The example Husserl advances of an Ought which has
no relation to a will proves the very Opposite of what he asserts. It is the sollen-
sentence ‘A soldier is to be brave’ which according to Husserl is ‘identical or at least . . .
equivalent’ (p. 82) to a value-judgment, viz. ‘Only a brave soldier is a good soldier.
But the value-judgment that a brave soldier is a ‘good’ soldier, or better, that a
soldier’s brave behaviour is ‘good’ behaviour, means—if this value-judgment is
objective—that a soldier’s brave behaviour is as it ought to be (and this simply means
that it is as was prescibed as obligatory in a norm presupposed to be valid, i.e. that it
agrees with this ought-norm). But in order to be valid, this norm must actually be
posited by some authority, it must be the meaning of a real act of will, or it must be
thought of as posited by some imaginary authority in a merely imaginary, fictitious
act of will. It is only on this presupposition that the value-judgment is possible, since
such a judgment is simply the ascertainment of the relation of a certain behaviour to a
norm. The value-judgment presupposes the validity of the norm—even if it is just a
fictitious validity—and not the other way round as Husserl assumes.
According to Husserl, the sentence ‘A soldier is to be brave’ is a judgment, indeed
a judgment ‘of normative form’ (p. 83). If it is a judgment, it must be true or false.
But when is the judgment ‘A soldier is to be brave’ true? Only when there is a valid
norm, posited by the moral or legal authority or arising by way of custom, which
prescribes that a soldier is to be brave. The judgment ‘A soldier is to be cowardly’ is
clearly false, because there is no valid norm which prescribes such behaviour. But a
norm is valid only as the meaning of an act of will. If we say ‘A soldier is to be
brave’, then we make a true statement only if we are making a statement about a
valid norm, and that means about the meaning of an act of will.
As will be explained in greater detail later, the word sollen can be used not only
with a prescriptive meaning, but also with a descriptive meaning, that is, not only as
the immediate expression of an act of will directed to the behaviour of another, but
as the expression of an act of thought. But this is possible only if one is thereby
asserting—from the point of view of an ethic or of legal science—the validity of a
norm which is the meaning of an act of will and which is posited by the moral or
legal authority.
In common usage, the word ‘sollen’ is used not only in a norm prescribing
(commanding) a certain behaviour and in a statement describing the validity of
such a norm, but also simply as the expression of advice, as in the sentence ‘You
ought to be careful when you cross the road.’ Or as the expression of a wish: ‘If only
it would rain!’ [Es 5011 doc/J endlich regnenl]. The difference between ‘wishing’ and
‘willing’ is that wishing can be directed to something other than human behaviour. I
can only ‘will’ that which I believe can be caused by the expression of my will: and
this can only be‘the behaviour of a being which can understand the expression of
my will. The assumption that God created the world by expressing his will, which is
the belief in God’s omnipotence—‘And God said, Let there be light: and there was
light’—has a religious-metaphysical character and is of no concern to scientific
ethics or legal science. The word sollen can also be used in the sense of ‘allegedly’:
‘Maier is supposed to have said that he was very rich’ [Mater 5011 gesagt baben er sez'
sehr reich]. Sometimes sollen is used in the sense of ‘to will’, as when people say ‘If
a metallic body is to be expanded, it must be heated’ [Wenn ein metallischer K'o'rper
278 Notes 7—8

aasgea’ehnt wera’en soll, ma]? man ihn erwa'rmen] when they mean ‘If one wants a
metallic body to expand . . .’. We will return to the incorrect use of the word sollen to
represent the means—end relation, as in ‘Whoever wills the end “ought to” (instead of
“must”) will the means.’

Note 7

A norm is not the same thing as a concept. There is such a thing as a concept ‘norm’
as there are other concepts such as ‘law of nature’, etc. But the word ‘norm’ does not
have the same signification as the word ‘concept’, as Moritz Schlick appears to
assume (1939: 15).
But a normative function is sometimes attributed to concepts, or concepts are
presented as norms. This is a characteristic element of the Platonic-metaphysical
Ideas. Cf. my Pare Theory of Law (1967) 18, 50, and my ‘Das Problem der
Gerechtigkeit’ (1960) 363, 398. [Translator’s Note: The reference to p. 18 of The
Pure Theory of Law is to a footnote on Schlick which is missing from the English
translation; cf. Reine Rechtslehre (1960) 17.] If a concept is a norm, then, as a
concept, this norm is a function of thought and not of will. The metaphysico-
theological basis of this view is very clearly manifested in the philosopher E.
Reinhold (1793—1855), who was influenced by Kant, and who is referred to by Peter
Freund in a very worthy Berlin inaugural dissertation (1933). Freund (p. 64) quotes
Reinhold as saying that concepts are
for our representations, partly the necessary organizing norms according to which we divide the
manifold material of thought into compartments and fix that which is proper to each
compartment in a unique individual representation, and partly the necessary construction
norms according to whose guidelines we must in many cases outline the representations of
individual objects. In particular, in these construction norms, we keep in front of our eyes the
general rules and models by which in every domain of human artistic achievements and human
expressions of will in general our energy is guided to a teleological necessity, and according to
which our energy shapes everything individual which we are capable of producing in virtue of
our will and our knowledge. (1832: 98)

This is pure Platonism. In a later work of Reinhold’s (1842: 91) Freund finds inter
alia the thought that concepts must also be considered to be archetypes according to
which the Absolute—God—creates the individual forms. They are the means for
realizing the ends willed by God. Concepts also represent the norms of our activity,
in so far as we ought to direct ourselves in accordance with them. Of the norms
which concepts must be represented as, Reinhold says ‘that the unlimited Spirit
governs the activity of Nature by no other and no higher laws than the norms
contained in his thought according to the goals he thinks’ (1842: 324, as quoted by
Freund, 1933: 70). The concepts contained in God’s thought are norms: norms and
functions of divine thought, which—nevertheless—is also will.

Note 8

As the meaning of an act of will, the norm has an ideell existence (as Opposed to a real
existence). But that does not mean that norms are ideas (i.e. thought-contents), as
statements are. Julius Moor (1927) says that
the law means on the one hand the great system of norms and rules existing purely ideally, but
on the other hand the great system of human actions connected to these norms . . . When we
 Notes 8—10 279

discuss the role of logic in the law, we must consider only the first component, the law’s system
of norms . . . If we want to inquire to what extent logic is operative in law, we must therefore
take into account only that the law as ‘norma agendi’ is a system of prescriptions, rules or norms
existing purely as ideas. This means that every legal system is a system of ideas. From this it is
already evident that logic plays an extraordinary part in law. For if the legal system is a system
of ideas, every legal norm has a logical content.
Indeed, norms do ‘exist’ ‘purely ideally’—or more correctly, have an ideell
existence—since they are only meaning-contents. But they are not the meaning of
acts of thought—and thus not ideas—but the meaning of acts of will.
As the meaning of acts of will, norms can be the object of our thought, of our
cognition, the object of a science, such as ethics and legal science. We can make
norms (as meaning-contents) the object of knowledge, without taking into
consideration the acts of will of which they are the meaning. Ernst Mally remarks
that there are instances of Ought in which we ‘shall be embarrassed to indicate the
subject or subjects of the relevant willing. But more importantly, in precisely these
cases—and they include the most important, those of ethical Ought—the impartial
person does not miss such a subject at all, because he does not think at all of a will or
willing subject’ (1926: 11). That is correct. But it only shows that we can make Ought
(the norm, as a meaning) the object of our knowledge and make statements about it,
and thereby abstract from the willing whose meaning it is. But that does not mean
that this Ought is not the meaning of a willing, that there can be an Ought (a norm)
without a willing whose meaning it is. If the statements—which are not norms—are
sollen-sentences, then this Ought has a descriptive and not a prescriptive
signification. This is indeed what Mally has in mind when he says: ‘We can always
replace “A ought to be” by “It is valid (it is the case) that A ought to be”, for the one
clearly does not apply without the other, and so we have replaced the requirement by
what could be called an ordinary theoretical state of affairs, something which a
person can think in a judgment or a mere assumption, without willing anything’
(p. 12). The ‘judgment’ Mally refers to can only be the statement about the validity of
a norm, and not the validity, i.e. the existence, of a norm which is the object of our
knowledge in ethics or legal science.

Note 9

Manfred Moritz (1954: 88) gives the name of ‘general imperative’ to an imperative
addressed to a number of persons not identified by name. But even an imperative
addressed to a person identified by name—i.e. an individually specified person—can
have a general character, if the commanded behaviour is not specified individually
but generally, i.e. if the number of occasions on which the command is to be
observed by the individually specified addressee is not limited beforehand.

Note 10

A norm is individual if both the personal and the material elements of the behaviour
are decreed to be obligatory concretely, that is, as a single act of one individually
specified person. For instance, the command of a father, A, to his son B: ‘Shut the
window.’
All other norms are general norms. But they admit of different degrees of
generality:
1. A father orders his three sons, B, C, and D: ‘Go to school today.’ A determinate
280 Notes 10—11

number of subjects specified individually and concretely; a determinate number of

similar, once-only instances of behaviour.
2. A non-commissioned officer issues the following order to twenty soldiers in a
rank: ‘Three men forward.’ A determinate number of subjects who are not specified
individually, and are therefore Specified abstractly; three similar, concretely specified
instances of behaviour.
3. The POpe orders all Catholics to address a certain prayer to God on a certain
day at a certain hour. An indeterminate, though limited, number of abstractly
specified subjects; an indeterminate, though limited, number of similar, concretely
specified instances of behaviour.
4. ‘All human beings are to keep their promises.’ An indeterminate and unlimited
number of abstractly specified subjects; an indeterminate and unlimited number of
similar, abstractly specified instances of behaviour.
5. ‘All human beings are to behave as Jesus prescribes.’ Only the norm-positing
authority is specified concretely. The material element of the norms to be obeyed is
not Specified at all. The personal element is an indeterminate, though limited, number
of abstractly specified persons.
6. ‘One is to behave as any authority prescribes.’ Only the norm-positing
authority is specified abstractly. The material element of the norms to be obeyed is
not specified at all. The personal element is an indeterminate and unlimited number
of abstractly specified subjects.
Norm 6 represents the highest degree of generality of a norm. Norm 6 is an
instance of the Basic Norm of a positive moral or legal order (as will be explained
later). Norms 1 to 5 represent different intermediate levels between an individual
norm and the norm with the highest degree of generality.

Note 11

The English expression ‘rule of law’ does not only signify a general norm of positive
law. It is also used for certain legal-political postulates. Thus Norman Marsh says:
More recently there has been a revival of interest in the Rule of Law, although less as a peculiar
feature of English constitutional law than as the common basis of legal ideals and practice which
unites or might unite what Article 38(1)(c) of the Statute of the International Court of Justice
calls ‘civilized nations’; the Rule of Law in this latest reincarnation has in fact much in common
with ‘the general principles of law recognized by civilized nations’ which inter alia Article 38
directs the Court to apply. (1961: 223)
These legal ideals or postulates include the following requirements: above all, that
courts, especially criminal courts, should act only in application of statutes, that is, of
general norms posited by particular organs (nulla poem: sine lege); that this
requirement of legality is also valid for administrative acts (with certain exceptions);
that the courts ought to be independent; that certain liberties protected by law ought
to be guaranteed to individuals and that individuals ought to be equal ‘before the
law’; and according to some, that the legality of administrative acts be subject to
judicial review. By and large, the use of the formula ‘Rule of Law’—when it does not
mean a general norm of positive law—amounts to a Natural Law ideal: a normative
coercive order ought to be valid as ‘law’ only if it agrees with these postulates called
the ‘Rule of Law’.
An essay by Ilmar Tammelo (1963) is a characteristic example of the political
nature of the formula ‘the Rule of Law’. The problem discussed in the essay is: ‘Is
there a rule of law between nations?’ and ‘Ought there to be a rule of law between
 Notes 11—12 281

nations?’ (p. 336). It is possible to put the queStion in this way only if the term ‘Rule
Of Law’ does not refer tO positive law. For there is no question that relations between
nations are subject tO international law. On p. 338, Tammelo says that the formula
‘the Rule Of Law’ contains ‘the invocation Of ideas such as “freedom”, “legality” and
“human dignity”’, and on p. 354 ‘equality’. ‘Freedom’, ‘human dignity’, and
‘equality’ are values which can be interpreted in many different ways, and which
may, but certainly need nOt, be realized in a positive legal order. On p. 350, Tammelo
says Of the formula ‘the Rule Of Law’: ‘In certain contexts the phrase means the same
thing as is denoted by “legal norm”. This meaning would be, however, obviously
inapprOpriate in the context Of our present concern.’ He therefore suggests replacing
the term ‘Rule Of Law’ by the term ‘Rule Of Reason’. On p. 363, he says: ‘It stands tO
reason that it is our duty tO obey the law, even in the case Of dum lex. The moral duty
tO obey the law can be challenged only in the name Of its patent and outrageous
absurdity and incompatibility with what we cannOt help regarding as indispensable
and overriding requirements Of common good.’ The concept Of the ‘common good’
implies a highly subjective value-judgment. What a socialist considers to be the
‘common good’ will be judged by a capitalist tO be quite the Opposite. Tammelo
clearly presupposes that ‘reason’ can tell us what the ‘common good’ is, the typical
illusion Of Natural Law understood as the Law Of Reason. Even though Tammelo
has tO admit ‘that the word “reason” is ambiguous and indeterminate’ (p.358), he
nevertheless declares ‘reasonableness’ tO be ‘a constitutive element Of international
law’ (pp. 362 f.). In other words: if a positive norm created by international custom
or by an international treaty is nOt ‘reasonable’ in the Opinion Of the subject who has
tO obey or apply this norm, then this subject does nOt have tO consider it tO be
binding. On pp. 365 f., we read: ‘These are the points at which fundamental
justification flows into or overrides legal justification. There are instances in which
what can still be shown tO be valid as the law can be shown nOt tO be valid by
reference tO considerations that must be regarded as higher than legality.’ The
consideration in question is the relation tO ‘reason’, that is, what the legal subject
considers tO be ‘reasonable’. This is the theory Of the Law Of Nature or the Law Of
Reason, which is the Opposite Of Legal Positivism, and which, if actually applied,
must lead tO total anarchy.

Note 12

A typical representative Of the view that a norm must necessarily be general is

Mieczyslaw Wallis-Walfiscz:
Norms and their formulations—normative sentences—are always general, unlike commands
which are immediate and whose validity expires as soon as they have been carried out. The
counsel ‘Take your umbrella’ is not a normative sentence while the precept of Chinese wisdom
‘Always take your umbrella even in good weather’ is a normative sentence. The utterance ‘Peter
should go for a walk’ does not constitute a normative sentence, but ‘Peter should go for a walk
every day’ does. (1937: 434)
If—as it appears from these lines—the reason why norms must be general is that an
individual command loses its validity once it is obeyed, then the reply is that a
general norm also loses its validity if it has been Observed in all the cases where it can
be Observed, so that the condition under which it is valid can nO longer occur. If
Peter dies, and the general norm ‘Peter should go for a walk every day’ can nO longer
be Observed at all, then it ceases tO be valid just as the individual command ‘Peter
ought tO gO for a walk’ ceases tO be valid once it has actually been complied with. Cf.
below, ch. 34. II.
282 Notes 13—14

Note 13

‘To command’ and ‘to order’ are synonymous. Their linguistic form is an imperative
or a sollen-sentence: ‘Do not lie’ or ‘You are not to lie.’ The word ‘imperative’ is
sometimes used instead of ‘command’ or ‘order’. Some people say ‘A addresses an
imperative to B’ when they mean ‘A addresses a command (or an order) to B in the
linguistic form of an imperative.’
Some people restrict the word ‘command’ to individual ‘imperatives’ and call
general ‘imperatives’ ‘rules’. Thus Bernard Mayo says ‘that particular imperatives are
commands and general imperatives are rules’ (1957: 161). This terminological
distinction is incompatible with the fact that a general imperative—such as a sentence
addressed by a teacher to a group of pupils ‘Be in class every morning at five to
eight’—can be called a command just as much as the sentence the teacher addresses to
an individual pupil ‘Come to my desk immediately.’ Both sentences are ‘commands’,
even the one called a ‘rule’. The difference is that the first is a general command, and
the other an individual command.

Note 14

Wilhelm Windelband speaks of a ‘thelematic principle that willing the end necessarily
involves willing the means’ (1904: 66). But this ‘principle’ has exceptions according
to Windelband:
But the validity of the proposition that the end justifies the means [Windelband seems to
consider this proposition equivalent to the ‘thelematic principle’] has its limits precisely in the
value—determinations which are materially inherent in the means and their subsidiary effects,
and consequently it is modified and cancelled in all the cases where these value—determinations
have a negative character and where a person muSt therefore in certain circumstances give up
pursuing the goal, because the required means either in themselves or in their effects evoke
value-feelings which lead to their rejection. Thus in certain circumstances the choice of ends is
overturned by the choice of means. In other happier cases, that choice of the end will find its
satisfying confirmation, if the means with the totality of its subsidiary consequences can also be
approved.
That means that an end can be willed without the means being willed, because for
some reason or other we cannot will the means. We then no longer will the end
(which we previously willed). But we did will it previously. Thus willing the means is
neither a logical nor a psychological consequence of willing the end.
Alexander Pfander defends the view that we can say that an end has been ‘willed’
only if the means is willed: ‘The goal of willing is thus called the end. But we call the
goal of a striving an “end” only if there exists a striving [willing is a special case of
striving] after the conditions for the realization of the goal . . . These conditions are
then called the means to the end’ (1930: 95 f.). That does not agree with ordinary
linguistic usage. In New York (where I presently live) I can will, i.e. set myself the
end, to be in Paris in two wéeks’ time, without immediately willing to make the trip
by ship or by plane, i. e. without immediately willing anything about the means of
realizing my goal of being in Paris in two weeks’ time, indeed without even
considering the question of the means. I can postpone any decision about the means,
and if I give up my will to be in Paris in two weeks’ time, never come to any decision
about the means. But I did ‘will’—and not merely wish—to be in Paris in two weeks’
time. Pfander himself says (p. 87) in his polemic concerning the view ‘that to willing
there necessarily belongs the action itself which will realize the goal of the willing’:
 Notes 14—16 283

‘The goal is already the object of our will before we consider the realization of the
means necessary to attain the goal.’ He gives the following example:
I want to attend the concert which will take place tomorrow at a certain time and a certain place.
This is clearly a real willing. But there is no sense whatsoever in my setting out immediately for
the concert. And my willing does not become real only when I set out tomorrow or get ready to
set out. And my present willing is not a mere wish, f0r the meaning would not be the same ifI
said ‘I wish to attend the concert’ instead of ‘I will to attend the concert’. It remains true for all
time that I had this willing, even if tomorrow I forget to go or I decide to do something else for
some reason. (p. 89)
Then one fails to see why I cannot really ‘will’ to attend the concert which takes place
tomorrow at a certain time and a certain place, without willing anything about
getting there. Since the means to realize my goal only come into play tomorrow, I
can come to a decision about the means only tomorrow, or not come to any decision
at all if before then I change my mind about attending the concert for some reason or
other. But even in this case, I really ‘willed’ and not simply wished to attend the
concert.

Note 15

Speaking of the sentences ‘You ought to give a second dose’ (said to a would-be
poisoner) and ‘You ought to tell the truth’, R. M. Hare says: ‘The logic of the word
“ought” is not markedly different in the two cases’ (1964: 160 ff.). But if the first
sentence has the meaning ‘You must give him a second dose of poison, if you want to
cause his death’, then what we have—if we express it correctly—is not an ‘ought’,
but a ‘must’. In English the distinction between ‘ought’ and ‘must’ is certainly not as
pronounced as that between ‘soll’ and ‘mu/Z’ in German. The only difference Hare
sees between the two sentences is that ‘you ought’ can be replaced by ‘it is your duty’
in the second sentence but not in the first. But in German, ‘du sollst’ is synonymous
with ‘it is your duty’.

Note 16

Since teleological necessity is causal necessity and hence is not normative necessity,
and since ethics basically asserts the validity of norms—i.e. an Ought, a normative
necessity—it is not possible to draw a distinction between a normative and a
teleological ethics. David Ross says:
In the complex fabric of common opinions about moral questions two main strands may be
discovered. On the one hand, there is a group of opinions involving the closely connected ideas
of duty, of right and wrong, of moral law or laws, of imperatives. On the other hand, there are
opinions involving the idea of goods or ends to be aimed at. In the one case the ideal of human
life is envisaged as obedience to laws, in the other as the progressive satisfaction of desire and
attainment of ends. (1939: 3)
The distinction between these two ethical theories is therefore the following:
according to the first the moral value, the goodness, of a behaviour consists in its
agreeing with a moral norm, while according to the second it consists in the
behaviour’s being a means of realizing a certain end. In other words, moral value
consists either in the relation of a behaviour to a norm presupposed to be valid or in
its relation to an end. This is the distinction between a normative and a teleological
284 Note 16

ethics, between an ethics according to which a behaviour is morally good if it agrees

with a moral norm presupposed to be valid, and an ethics according to which a
behaviour is morally good if it agrees with a presupposed end.
But even the teleological ethics is simply a normative ethics. For what this ‘ethics’
calls an ‘end’ can only be a norm which decrees a particular behaviour to be
obligatory. Ross comments:
The general antithesis between ethical syStems in which duty is the central theme, and those in
which goods or ends are the central theme, is clear enough. Yet it would be a mistake to suppose
that there has ever been an ethics of duty which did n0t include a recognition of intrinsic goods,
or an ethics of ends which did n0t include a recognition of duties. (p. 4)
But it is more correct to say that there cannot be any ethics other than a normative
ethics (i.e. an ethics which asserts the validity of moral norms), since a morality
cannot be anything but a normative order, i.e. a system of norms prescribing
particular behaviour. The use of the term ‘end’ to refer to a norm prescribing
particular behaviour is based on the distinction between a ‘subjective’ and an
‘objective’ end, where a subjective end is understood as a situation which someone
wants to bring about, while an objective end is understood as a situation which
someone ought to bring about even if he does not want to do so. But this situation is
an ‘end’ only from the point of view of the person who posits the norm by his act of
will, the person who wills that one is to behave in the way specified in the norm, i.e.
.the person who posits the command which is the norm (the commander), and not
from the point of view of the person who is to behave in this way, the person to
whom the norm is addressed (i.e. the addressee of the norm or command). The norm
of a positive morality—like the norm of a positive legal system—is always the
meaning of an act of will. This act of will can be—according to the religious faith of
mankind—that of a superhuman transcendent personality, i.e. the will of God, which
his prophets announce. In such a case, a person is inclined to disregard the acts of will
of which the norm is the meaning and to interpret positive norms as ‘ends’ which are
not willed, and so are ‘objective’ in this sense. But they cannot be objective in this
sense; there cannot be any objective ends. For an ‘end’ must be willed, even if it is by
some transcendent authority. In other words, if we are to presuppose as valid, moral
norms which have not been posited by human acts of will, then we must assume that
they were posited by a supra-human transcendent will. A positive norm which was
not posited by any act of will—which is not the meaning of any act of will—is a self-
contradiction: it is a command without a commander—or if we take into account the
linguistic form of a command—an imperative without an imperator.
Warren Ashby calls Ross’s normative ethics ‘deontological’, and claims that there
is no conflict between the two kinds of ethics: ‘each position, consistently deve10ped,
implies the other’ (1950: 765). That is incorrect. Each does not imply the other: there
is only one ethics, namely normative or deontological ethics.
Nor is it possible to draw a distinction between a ‘normative’ and an ‘explanatory’
concept of end, as Rudolf Eisler does (1914: 65 ff.). The concept of end is
‘explanatory’ if the realization of the end is thought of as the effect of the realization
of the means, and the realization of the means as the cause of the realization of the
end. Then ‘the necessity of events which obtains here’ is ‘teleologico-causal necessity’
(p. 66).
A normative-teleological necessity obtains only if we do not reduce the relation of means to end
directly to a causal relation, but consider the end as an idealfoundation from which the means
follows intellectually. Positing the means then appears to be conditional upon, or required by,
positing the end, or the judgment about the means is valid because positing the end is valid.
What we have here is an application of logic to a particular area, i.e. a ‘teleological logic’ or logic
of ends. Causality is not being directly considered here. Even if the ‘means’ is also a ‘cause’ of
 Note 16 285

the realization of the end, the purely teleological relation is a special kind of dependency. Thus
the laws of ends are not themselves causal laws, but they may point to them directly or
indirectly. They specify only what must or should happen if a certain goal is to be reached, a
certain end is to be fulfilled. Here ‘must’ has no directly causal signification: it does not refer to
an effect’s resulting from its cause, but mainly to the means’ being conditional upon the end.
(pp. 66 f.)
In reply, it has to be said that ‘the means’ being conditional upon the end’ consists
merely in the fact that the realization of the end is the effect of the realization of the
means and the realization of the means is the cause of the realization of the end.
When Eisler bases the ‘normative’ concept of end on the assumption that the means
follows ‘intellectually’ from the end as an ‘ideal foundation’, this can only mean that
the means follows logically from the end. And Eisler does also say that what we have
here is ‘an application of logic . . .’. He speaks of a ‘teleological logic’ or ‘logic of
ends’. But the means does not follow logically from the end, as the truth of the
statement ‘Socrates the man is mortal’ follows logically from the statement ‘All men
are mortal.’ The end can be willed—and it is an end only if it is willed—without the
means being willed, e.g. if a person is unaware of the means or considers it immoral
or illegal. If the ‘law of ends’ reads ‘If a certain end is to be fulfilled, something must
happen’, the ‘must’ can only have a causal signification, if it expresses the relation
between means and end. For if it is the case that something must occur if a certain end
is to be fulfilled, then it is only because this occurrence is the cause which brings
about the realization of the end (as effect), only because the end would not be
realized without this occurrence. Eisler says on p. 68 that normative-teleological
considerations concern ‘the answer to the question “Is an event or situation
considered to be the content of a will truly apprOpriate to the end, is an action right,
is a behaviour as it ought to be given its end?” ’ This question can be answered in the
affirmative only if we know that the behaviour is the cause which brings about the
realization of the end. On p. 69, Eisler speaks of an ‘undeniable connection of all
teleology with the causal nexus of events’ and comments that this nexus does not
annul
the specificity ofnormati've-teleological evaluation . . . for which causality is not the object of the
perspective. A given direction and capacity (to produce effects) of a thing being considered as
means is indeed an objective condition of normative evaluation, but it is not its ‘formal object’.
This consists in the means’ being required by the end, in the ‘suitability’ of the means to the end,
which is assessed in part in virtue of the actual consequences of an action and of the comparison
of the consequences with the end (already determined or to be determined).
But the means’ being ‘required’ by the end simply means that the realization of the
means is the cause that brings about the realization of the end (as effect). The
‘suitability’ of the means to the end consists in this and in nothing else. ‘Teleological
assessment’, says Eisler, seeks ‘to test the value of the means, which consists in the
means’ possessing the aptitude to lead to a desired effect’ (p. 70). But the means leads
to a desired effect just because its realization is the cause of the realization of the end.
On p. 73 Eisler quotes the following passage from Sigwart (1895: ii. 540): ‘In order
that we may say that a given action is the right means to a given end, and must
therefore be willed because the end is willed, we need the certainty not merely that
the end is, generally speaking, the necessary effect of the means, but also that this
means will produce the end under the whole of the given circumstances.’ The words
‘this means will produce the end’ assert unambiguously that the realization of the
means (as a cause) will bring about the realization of the end (as effect). The causality
of the means with respect to the end is the crucial teleological relation.
286 Notes 17—19

Note 17

Manfred Moritz distinguishes between ‘genuine’ and ‘inauthentic’ imperatives or

commands (1941: 227f.). ‘In a genuine command, a goal (or command-content) of
the commanding subject is commanded.’ Inauthentlc imperatives are commands
in which an action is expressly or implicitly recommended in imperative form, on the
assumption or presupposition that the subject of the command [the addressee] has certain
concrete goals. The imperative then ‘commands’ the performance of certain act considered to be
appropriate means for realizing the presupposed goals. These imperatives can . . . take on the
form ‘Do this . . . because (or if) you have such and such a goal’.
In reply to this, it must be said that a genuine imperative, i.e. a command, does not
command any goal or end. It commands particular behaviour, whose actual
performance can be the goal or end of the act by which the imperative or command is
posited. The goal or end is not the content of the command—i.e. the behaviour
decreed to be obligatory in the imperative or command—but the occurring
behaviour which agrees in the real world with the imperative or command. The
‘inauthentic’ imperative is not an imperative at all, but an incorrectly formulated
statement about a causal connection between a means and an end. When someone
says, for example, ‘If you want to remain healthy, you ought to (to be exact: you
must) avoid drinking alcoholic beverages’ or ‘If you want to remain healthy, avoid
drinking alcoholic beverages’, he makes use of a linguistic expression whose meaning
is a command; but in so doing he does not want to command anything. He does not
prohibit the drinking of alcoholic beverages. He states the effect alcoholic beverages
have on health. Moritz also admits: ‘We cannot really say that something is
“commanded” here. The “commanding” subject for his part does not will anything’
(p. 228).
Sigwart says: ‘Every end may be regarded as a specific rule, every rule as a general
end’ (1895: ii. 534). But an end is not a norm (a rule). Only actual behaviour which
agrees with a norm can be an end, an end which the norm-positing person pursues in
positing the norm. Nor is a norm an end. It is only the act of positing a norm which
can be the means to an end, the end which is the actual behaviour agreeing with the
norm, and this behaviour is identical neither with the norm nor with the behaviour
appearing as obligatory in the norm.

Note 18

Thus Ch. Perelman and L. Olbrechts-Tyteca are mistaken when they say: ‘An
activity may, however, be valued as a means’ (1969: 276), even though they add the
following restriction: ‘It must not be forgotten that, though it may be true that the
end gives value to the means, it does not always justify it, for the use of the means
may be blameworthy in itself or have disastrous consequences outweighing the end
one wished to secure’ (p. 276). ‘To give value’ means the same thing as ‘to justify’.

Note 19

It is clearly out of respect for Kant’s authority that Fred Bon, in his otherwise
excellent study (1898: 57ff.), characterizes the means-end relation as Ought and
formulates the question about the means as ‘What ought I to do, in order to . . .’. But
he sees that the means-end relation is not a normative relation, and that the statement
 Note 19 287

that a certain action is the apprOpriate means of realizing a certain end is different
from the statement that a certain action is commanded, i.e. obligatory. He says on
p. 59 that a person who asks ‘What ought I to do in order to . . .’ does not wish ‘to
know the content of a norm’, ‘but is interested in advice which states the means by
which the end contained in the subordinate clause can be reached’. ‘This advice’, Bon
says—in Opposition to Kant—‘. . . does not command, but recommends.’ But he
adds, following Kant: ‘Externally it can be clearly distinguished by its hypothetical
form from the categorical command . . .’. This is incorrect, since—as was indicated
earlier—there are also hypothetical commands of morality.
And he continues: advice manifests ‘so many characteristic differences’ from a
command
that we must properly wonder how an irrelevant similarity in the word [i.e. ‘sollen’] can have
allowed so many important differences in signification to go unnoticed. A command remains a
valid command, whatever the goal of the individual to whom it is addressed; but advice is valid
only on the presupposition that a certain end is desired. And it is just this presupposition which
makes the relevant Ought hypothetical. (pp. 59f.)
But the ‘similarity in the word’ which Bon rightly calls ‘irrelevant’ is not a real
similarity, but an incorrect linguistic usage. For the correct phrasing of the question
about an apprOpriate means to a presupposed end is: ‘What must I do, in order to . . .’
and not ‘What oaght I to do, in order to . . .’; for the question is about the possible
cause of an intended effect. And the correct phrasing of the answer to this question
is: ‘If you will the end, then you must . . .’, for the answer indicates the cause which
brings about the realization of the end. Later (pp. 62 f.), Bon himself gives the answer
to the question ‘What ought I to do, in order to . . .’ as ‘If you will b, then you must
bring about a’, and emphasizes that this answer is based on the understanding that ‘if
a is, then b is also’. If the answer is ‘If you will b, you must bring about a’, then the
correct phrasing of the question can only be: ‘What mast I do, in order to . . .’. On
p. 96, Bon distinguishes between ‘technical ought’ and ‘normic ought’. What he
means by this is the distinction between the ‘must’ of the means-end relation,
asserted by technology, and the Ought—i.e. the validity of norms—asserted by
ethics. On p. 61 he says: ‘The question “What ought I to do, in order to . . .” is the
basic form to which can be reduced all the individual questions to be answered by
technology.’ It is certainly linguistically more correct to say: ‘The question “What
must I do in order to . . .” is the basic form, etc.’
The norms of criminal law are hypothetical norms since they command
punishment only on the condition that a delict has been committed. What is
characteristic of criminal law—of all law, for that matter—is that a certain behaviour
is commanded in virtue of the fact that a coercive act is decreed to be obligatory as a
sanction if the opposite behaviour—the delict—occurs. This can be expressed by
saying: The command to refrain from the delict (or the prohibition of the delict) is
implicit in the norm which decrees the sanction (especially, the punishment)—which
is conditional upon the delict—to be obligatory. Bon says on p. 60:
There have been attempts to give the [implicit] command this hypothetical form by expressing it
in this way: ‘Do such and such, if you want to avoid punishment’. Only it has not been noticed
that the charaCter of a command is lost when it is given this formulation; in addition to the
command implicitly contained in the threat of punishment, we also have advice from the
legislator to observe the command . . .; the advice is added on to the command, but it is not
identical with it. Consequently, such a reduction of a categorical command to the hypothetical
form of advice is totally inadmissible.
In the sentence ‘Do such and such if you want to avoid punishment’ the means-end
relation is not expressed in a sollen-sentence or—and this amounts to the same
thing—in an imperative sentence. The linguistic expression ‘Do that . . .’ is deceptive,
288 Notes 19—20

since its meaning is not a command. If the quoted sentence is ‘advice’ as Bon assumes,
then it cannot be expressed in an imperative sentence. For advice is not a command.
Nor is it advice from the legislator, for he does not give advice: he issues commands,
he posits norms. A legal adviser can say ‘If you want to avoid punishment, you must
do such and such.’ For a legal adviser cannot command anything. That is clearly what
Bon means when he says that the advice is added on to the command and is not
identical with it. This means that the means-end relation expressed in the advice does
not have any normative character. And so Bon distinguishes between ‘technical
ought’—which is really a ‘must’—and ‘normic ought’—which is the only ‘ought’.
Some people understand by a ‘categorical’ imperative one which allows for no
exceptions. Carl Wellman says: ‘A third way of conceiving a categorical imperative is
as one which does not allow of any exceptions’ (1961: 248). Wellman comments:
But in this View every directive would be categorical. It is a mistake to think that one can
distinguish between those directives which allow of exceptions and those which do not. It is the
people who issue directives who allow exceptions when they fail to enforce them; the directive
itself does no more than prescribe, prohibit or permit an action. An exception exists when a
directive prescribes or prohibits a class of actions, when most of the agents to whom the
directive is addressed conform to it, but one or a few indicated agents fail to act in the directed
manner without being penalized. The directive applies equally to those who conform and to
those who do not. If it did not apply to those who flaunt it, they could hardly be considered
exceptions to it. It is those responsible for the enforcement of the directive who allow the
exceptions by tolerating those who disobey it.
But an exception to the validity of a norm prescribing particular behaviour can also
be the result of a norm which restricts the validity of the first norm. The validity of
the norm ‘No one is to lie’ can be restricted by a norm prescribing to physicians that
they are not to tell the truth to incurable patients who ask whether their illness is
curable. In this way an exception is made to the general norm. It is a norm—in
Wellman’s terminology, a ‘directive’—which creates the exception.

Note 20

So does Christ0ph Sigwart, who says: ‘Hence whoever wills the end must also will
the means; assuming that we will a definite end, it is necessary that we will definite
means. The connection between the thought of the end and the thought of the means
as objects of our will is logical; but the necessity of thought rests upon our
knowledge of the causal necessity of being’ (1895: ii. 200). From a knowledge of the
effective causes, ‘we may infer with logical necessity the means for a given end, which
must be willed if the end is willed’.
In another work (1889), Sigwart says:
The will to act can never be the pure logical consequence of the consideration of the means to an
end which is willed . . . The willing of the end cannot lead to the willing of the action [i.e. the
action which realizes the means] without the factor of courage which dares even at the risk of
failure; it is precisely in this that we see that there is a decision which precedes the carrying out
of an ascertained end. (170 f.)

According to this account of Sigwart’s, the will to realize the means is not the logical
consequence of willing the end.
Alois Hofler says ‘that the willing of the “means” must never be less real than that of
the “end” itself’ (1897: 504). Willing the means is a fact of reality, just like willing the
end. But there are no logical relations between two facts of reality.
 Notes 21—23 289

Note 21

This principle can be traced back to the Jesuit priest Hermann Busebaum, 1600—68,
who wrote (1663): ‘When the end is licit, so are the means’; but he expressly excludes
reprehensible means. In his Provincial Letters, Pascal makes aJesuit say: ‘We correct
the viciousness of the means by the purity of the end’ (seventh letter, p. 104). This
comes after the following passage: ‘We try and put into practice our method of
directing the intention, which consists in setting up as the purpose of one’s action
some lawful object. Not that we fail to deter men as far as we can from forbidden
things, but when we cannot prevent the action, at least we purify the intention.’ Thus
the principle is not a logical one, but a moral-political principle. Cf. Georg
Buchmann (1952: 88).
Hobbes writes in De cioe: ‘But because it is in vaine for a man to have a Right to
the end, if the Right to the necessary meanes be deny’d him; it followes, that since
every man hath a Right to preserve himself, he must also be allowed a Right to use all
the meanes, and do all the actions, without which he cannot preserve himself (i. 8).
The right to preserve oneself is a ‘naturall Right’ (i. 7), and the passage just quoted
need not mean that the Natural-Law-based permissibility of the means follows
logically from the Natural-Law—based permissibility of the end. That is, it need not
directly assert a logical necessity. Hobbes may simply be putting forward a
requirement of legal politics, which positive law may—but need not—recognize.

Note 22

Kant’s ‘categorical imperative’ is not a general moral norm categorically prescribing a

particular behaviour. Kant, as a moral phiIOSOpher, does not have the competence to
posit moral norms. The Foundations of the Metaphysics of Morals, in which he
presents his doctrine of the categorical imperative, is an ethical treatise, and as he says
himself in the Preface (iv. 385 ff), ethics is a science, and so it is cognition of an
object, i.e. of morality as a system of norms. As an ‘imperative’, i.e. a command or
norm, the categorical imperative could only be the meaning of an act of will. But
there is no place for an act of will in Kant’s ethics. What Kant presents in the form of
a categorical ‘imperative’ is a statement of ethics, the statement that the norms of
morality have the character of the ‘universality of law’, i.e. are general in character.
He says himself: ‘But if I think of a categorical imperative, I know immediately what
it contains’ (iv. 420). And of the content of the categorical imperative, he says that
there is ‘nothing remaining in it except the universality of law as such’ (iv. 421).

Note 23

Sigwart says: ‘It follows from the nature of the case that all rules which are intended
to regulate conduct . . . are general and to a large extent hypothetical’ (1895: ii. 538).
Clearly Sigwart is thinking only of general norms. But the following passage makes it
clear that all general norms are hypothetical:
Ethical convictions involve a willing of universal ends, which specialize themselves in the most
varied manner according to circumstances, and they prescribe how we ought to act when certain
conditions occur; prohibitions, especially, though they are in themselves unconditional, and are
always complied with when the forbidden aCtion remains undone, have no significance for the
will unless the temptation to violate them is present. (ii. 538—9)
290 NOtes 23—25

The last claim is correct, but it is incorrect that prohibitions are always being
observed while the prohibited action remains unperformed. They are observed only
when the possibility of performing the prohibited action obtains, and—since Sigwart
assumes here that norms demand a willing—when the addressee wills to refrain from
the prohibited action. Willing to omit an action is itself an action and not an
omission; and it is obvious that a positive act is possible only under certain
conditions, and hence can be prescribed only under these conditions. Even norms
which demand ‘a willing of universal ends’ are valid only conditionally; for instance,
the norm ‘Love your country.’ It is valid only if a person has a country, and so is not
valid for a stateless person; and it is valid only in situations where there is an
opportunity to love one’s country, e.g. when it is attacked.

Note 24

Manfred Moritz declares:

If there is a conditional imperative ‘If it rains, go home!’, we can express the parallel judgment
for instance in the following way: ‘It is commanded to go home if it rains’. It should not be
formulated so as to say ‘If it rains, it is commanded to go home’. This latter judgment states
under which conditions the action is commanded. If it does not rain, the action would not be
commanded. In other words, this sentence would only be true if the imperative existed only
when it rained. But that is a completely different judgment. The judgment which is parallel to a
conditional imperative does not state under which conditions an action is commanded, but
under which c0nditions the action ought to be performed. (1954: 100 f.)

If the parallel judgment states under which conditions one ought to go home, then it
asserts under which conditions it is commanded—Le. it is obligatory—to go home.
But it is likely that Moritz thinks it is not the Ought which is conditional, but the—
obligatory—action, the going-home. The imperative is ‘conditional’, not because it is
subject to a condition [bedingt], but because it sets a condition [bedingend].

Note 25

It is true that the legal norm which prescribes that a certain coercive act (punishment
or execution of judgment) is to occur under a certain condition is called ‘a law’ when
it is general. But it is not a law, i.e. not something which can be called a ‘law’ in
analogy with a natural law. For it is not a statement describing a linking of states of
affairs, a functional connection. The general legal norm is the meaning of an act
which prescribes something and which therefore produces the linking of states of
affairs, the functional connection, which is described by the sentence of legal science,
the proposition of law or legal law. Just as the natural law formulated by natural
science describes Nature, so the moral law formulated by ethics describes morality
and the legal law formulated by legal science describes the law. A ‘law’ is a statement
about an object and it must not be confused with the object it describes, even if this
confusion of ethics and morality, legal science and law, is only too frequent.
Moritz Schlick characterizes a natural law—i.e. a causal law—as a ‘description of
how something does in fact behave’, and a moral or legal law as a ‘prescription as to
how something should behave’ (1939: 147). And he comments: ‘The two forms of
“laws” have only this in common: both tend to be expressed in formulae. Otherwise
they have absolutely nothing to do with one another, and it is very blameworthy that
the same word has been used for two such different things.’ That is correct only if the
 Notes 25—27 291

terms ‘moral law’ and ‘legal law’ refer to the norms of morality and law, but not if
they refer to the statements of ethics and legal science describing morality and law. In
the second case, natural laws and moral and legal laws are similar in that both
describe the linking of states of affairs (functional connections), and it is for this
reason that they are both correctly called ‘laws’. Schlick does not see that moral and
legal ‘laws’ are formulated by the normative sciences describing moral and legal
norms, just as natural laws are formulated by natural science which describes Nature,
and that it is only the norms described by the normative sciences which are
prescriptions, and not the ‘laws’ describing these norms. CF. my Pare Theory of Law
(1967) 79—80, 101. [Translator’s Note: A footnote on Schlick was omitted on p. 101;
cf. Reine Rechtslebre (1960) 107.] Both kinds of law connect two states of affairs as
condition and consequence. But the meaning of the connection is causal necessity in
the case of natural laws and normative necessity in the case of social laws, i. e. moral
and legal laws. The schema of the former is ‘If A is, then B is (or will be)’; that of the
latter is ‘IfA is, then B ought to be.’

Note 26

Retribution is one of the principles the idea ofjustice appears as. Cf. my article ‘What
Is Justice?’ (1957, 1973). A good example of an attempt to define justice—i.e.
absolute justice—is Illmar Tammelo’s article ‘Justice and Doubt’ (1959). At the end of
a weighty paper of over 100 pages, Tammelo comes to the following conclusion:
‘ “What is justice?” I can answer: “Justice is a social situation to which the value ‘just’
is attributed” or “Justice is a social situation deemed to have justness”.’ That is a
totally empty tautology. For by ‘justness’ Tammelo means the quality of being just,
or as he says on p. 388: ‘Justness is the axiotic character corresponding to the just . . .
the entity to which justness directly adheres is a conduct.’ ‘. . . A conduct . . . is
deemed to have justness . . .’.

Note 27

Werner Goldschmidt (1951) distinguishes between law as an ‘ideal’ object and law as
a ‘real’ object. Law as imperative—i.e. as norm—is an ideal object (he claims); but
because it is an ‘uttered imperative’, it is ‘a psycho-physical fact and as such in both
its aspects a thoroughly real fact’ (p. 189). The ‘real’ fact is the act of will of which the
norm is the meaning. But the law is not the act of will, but its meaning; a norm is an
ideal and not a real object in Goldschmidt’s terminology. When the relation between
the act and its meaning (the norm) is expressed metaphorically, we say that the law is
‘created’ by an act of will. The law is the product—the ia’eell, not the ideal,
product—of the real act. The law-creating act is legally relevant only in so far as it is
legally regulated, i.e. by legal norms; in other words, it is only the legal norms
regulating the law-creating and law-applying acts which are of interest legally, for
instance, the norms of the constitution, which regulate the acts of legislation, or the
norms of civil and criminal procedural law, which regulate the acts of applying the
norms of civil and criminal law. Even though Goldschmidt correctly distinguishes
between a real object and an ideal (more correctly, an ideell) object, he conflates
them, i.e. he confuses Is and Ought in his definition of law as a real object.
We also find a similar confusion of Is and Ought in Benno Erdmann’s—highly
artificial—presentation of this problem (1923: 289 f.). It amounts to an identification
of validity—i.e. Ought—with effectiveness—i.e. Is:
292 Note 27

The predicative relation is even more characteristic in normative judgments which assert, not an
Is or Have, but an Ought to be or Ought to have, for inStance, ‘You ought to speak the truth’,
‘We ought to serve God, to please Him, with modesty . . .’ For the norms being asserted here
are norms for the very reason thatthey are valid for the subjects, provided the latter conform to
the ideal we have created for ourselves, even though the norms do not necessarily inhere in the
subjects and indeed as a rule are lacking in them.
But the norms ‘are valid’ for the subjects not only if the latter conform ‘to the ideal
we have created for ourselves’—and that means to the norm which institutes this
ideal—but also—and particularly so—when they do not conform to this ideal, when
they Violate the norm. For a particular behaviour to fail to conform to an ideal, for a
norm—instituting this ideal—to be violated, presupposes that the norm is valid; for
it is only a valid norm which can be violated. It is difficult to understand what it can
mean for the norms to ‘inhere’ or ‘be lacking’ in the subjects who observe or violate
them. The relation of a norm to the person who observes the norm or to the person
who violates the norm does not consist in ‘inhering’ in the person in the first case,
and in the second case not ‘inhering’ in him or ‘being lacking’ in him, in being
‘immanent’ in the one person and not in the other, as Erdmann assumes. The norm
exists equally for both persons, it is valid for both, and it ‘inheres’ in them only in
this sense. To say that a norm ‘is lacking’ in a person who does not observe it—and
for whom it therefore is not effective—can only mean that it does n0t exist for this
person, that it is not valid for him, and this clearly is false.
It is also clear that Erdmann identifies the ‘validity’ of a norm with its effective-
ness, from the fact that he continues:
Nevertheless, logical immanence is not lacking here either. Admittedly the subject of this
immanence is nor the liar [i.e. the person who violates the norm ‘You are to speak the truth’]
whom I see standing before me or whom I am thinking of in so far as I require of him that he
speak the truth—if he were, then the judgment [he means the ‘normative judgment’ ‘You are to
Speak the truth’] would be meaningless—but this person as member of the ideal moral society
in which I think of this requirement as realized.
Disregarding the fact that the person who posits the norm does not have to think of
an ideal society in which the norm is realized, and that the norm is in no way
meaningless for the subject who violates it and is indeed highly meaningful for him,
this sentence means that the norm is immanent only in the subject who observes it.
‘Thus the ideal subject oft/ye norm is the person of whom this demand [i.e. the norm]
is imagined to be the possession. Therefore this very person is the prOper subject of
the immanence intended here . . . I assert the obligatory behaviour of him, because I
think of it as realized in him as ideal subject.’ In order to understand the observance
of a norm, I do not have to imagine an ideal subject in an ideal society at all. Norms
are observed by very real subjects in the real world. If a person observes the legal
norm which prohibits the killing of other peOple by attaching a punishment to
homicide, and refrains from killing his competitor merely because he fears the
punishment, he is anything but an ‘ideal’ subject of the norm, which is concerned not
with him but precisely with the person who kills another person. Also, the norm is
the ‘possession’ neither of the person who observes nor of the one who violates it.
This image—most inapprOpriate from the point of view of logic~is misleading and
obscures the relation which exists between a norm and the subject whose behaviour
is decreed to be obligatory in the norm. Saying that ‘the obligatory behaviour’ is
asserted of the ‘ideal’ subject because it is ‘realized’ in him is merely a metaphorical
expression for the identification of validity with effectiveness. But the metaphorical
expression simulates something which is incorrect. The ‘obligatory behaviour’ is not
asserted of the ideal subject; we can only assert of a real subject who can both observe
and violate the norm, that his behaviour is or is not as it ought to be. What is asserted
is an Is—which agrees with or fails to agree with an Ought. Erdmann aims to replace
 Notes 27—29 293

Ought by an Is. He says: ‘Because it is required, Ought is idealized Is, the Being of
the ideal subject.’ Thus he identifies the Ought, the norm, with the person observing
the norm. And finally: ‘Thus Ought is normative Is. Accordingly, the logical
immanence in the normative judgment exists in the idealized subject as the logically
intended subject of the assertion’ (p. 291). But ‘normative’ Is is not Ought; the Ought
is that which requires, and not that which is required. And that which is required,
that which is obligatory, that which is the content of Ought, is not an Is, but a
modally indifferent substrate, to which a substrate occurring in the mode of Is can,
but need not, be identical. If it is, then we speak of an Is which agrees with an Ought.

Note 28

Ernst Mally (1926) characterizes Ought as the meaning of a willing. Mally tries to
express in terms of the distinction between ‘Ought’ and ‘actual Ought’ the
distinction I make between Ought as the subjective meaning and Ought as the
objective meaning of an act of will directed to the behaviour of another. According to
Mally, ‘actual’ Ought obtains when the concept of ‘justification’ is introduced. To
say that something ought to be is not yet to say
that something actually ought to be. But all justification hinges on this. A demand—even in the
subjective sense of the word—which is justified, is a demand which is clearly itself somehow
required, which corresponds to an Ought; thus something can be actually justified only if this
Ought actually obtains . . . There is (at least) one state of affairs which actually ought to he.
(p. 18)

This characterization of a ‘justified’ Ought as an ‘actual’ Ought is terminologically

not very fortunate, since ‘actual’ usually means ‘existing’ and Ought cannot be
‘existing’. Cf. my Pure Theory of Law (1967) 8. [Translator’s Note: A footnote on
Mally was omitted in the English translation; cf. Reine Rechtslehre (1960) 8.]

Note 29

A typical example of the failure to distinguish between the act and the meaning of the
act is Cassius J. Keyser’s article ‘On the Study of Legal Science’ (1928). Keyser
begins with the assumption that natural phenomena are the object of a science, and
accordingly claims that if the study of law is or should be a science, then its object
must be ‘natural phenomena’ (p. 416). The object of legal science—or what people
rightly or wrongly call legal science—is law. Consequently, law, as the object of a
science, must be a natural phenomenon, namely, the actual behaviour of human
beings. Keyser also calls law ‘a certain species of human behaviour’ (p. 416), to be
exact, the behaviour of those persons whose function it is ‘to answer . . . such
questions’ as ‘What is just’. In his view, these persons are the judges. ‘The subject-
matter of legal science is the decisions (the distinctive behavior) of judges.’
In view of the fact that positive law and justice are not identical, it is only positive
law which can be what Keyser characterizes as ‘just’. He insists that he is aware of the
ambiguity of the word ‘just’, and that this term can also mean positive law. Thus the
law is the actual acts of the judges. If we say that the law is the specific behaviour, i.e.
the actual acts, of judges, the question then arises ‘Who is a “judge” ?’ The concept of
a judge presupposes the concept of law. For a judge is_nothing but a person who
corresponds to certain legal norms, i.e. the meaning of certain acts, which are acts of
legislators or custom-creating acts. One can correspond only to the ought-meaning of
294 Notes 29—30

an act, and not to the act itself. The law can be understood only as the meaning of an
act and not as an act. Also, the specific function of judges is not to answer any
questions in the sense in which a science answers questions: it is not a cognitive
function, but a function of will, an act of will whose meaning is the law, i.e. an
individual legal norm. The judge ma/ees law just as a cabinet-maker makes a cabinet.
And just as a cabinet is not the cabinet-maker’s activity of making but rather that
which the cabinet-maker makes, so the law is not the law’s activity of ‘making’—not
a specific activity of the judge—but that which the judge makes, the meaning of his
act. And this meaning is that something ought or ought not to be, that an accused
ought or ought not to be imprisoned, that execution ought or ought not to be levied
against the defendant’s assets: in other words, an Ought and not an Is. But the
judge’s act is an Is. Keyser completely overlooks this Ought-meaning. At the
beginning of his article, he distinguishes between only two kinds of questions:
‘questions regarding the make—up of the actual world and questions regarding the
make-up of the world of possibility’ (p. 414). But besides these two questions, about
that which is actual and that which is possible, there is also the question about that
which ought to be. It is not everything actual or possible which ought to be. Much is
actual, and yet ought not to be, and much is not actual though possible, and still
ought not to be, such as a crime which is possible but not actual.

Note 30

In his legal theory which he calls ‘egological’, Carlos Cossio claims that the object of
legal science is not rules—i.e. norms, since legal rules are norms—but rather human
behaviour given in experience: ‘the egological Theory considers that the objects to be
known by the jurist are not rules, but human conducts’ (1948: 348). By this, he can
only mean acts of law-creation and law—application, which take place in space and
time and which are connected to other facts of natural reality according to the
principle of causality. But Cossio claims that the ‘experience’ in which these real acts
are given is not ‘natural or causal’ experience: ‘The egological Theory considers that
the Dogmatic Science of Law is a science of reality and in so far a science of
experience; but of cultural or human experience, and not of natural or causal
experience’ (pp. 345 f.). But the actual behaviour of human beings—even when it
involves acts of law-creation and law-application—cannot be given in any other
experience than natural causal experience. The actual behaviour of human beings
must be understood as causally determined, just like all Other facts of reality. For
otherwise we would be accepting the religious-metaphysical, scientifically untenable
idea of free will. And this is exactly what Cossio does:
Again, unlike juridical empiricism, the egological Theory considers that human conduct is an
object of experience radically different from natural objects, since while they constitute an
experience necessarily governed by the identity of causes with effects, human conduCt
constitutes an experience of liberty, in which the creation of something original appears every
instant. (p. 348)
But he cannot himself sustain this concept of an experience of liberty. For he has to
admit that human behaviour occurring in space and time—which forms the object of
legal science according to his theory—is motivated, and that means causally
determined. ‘Cultural objects or goods created in some manner by man motivated by
preference are, in their turn, real: they have existence, they are in experience; they are
in time.’ And following the sentence just quoted, he adds:
but they [i.e. cultural objects, and thus the law-creating and law-applying acts of human beings]
 Notes 30—31 295

are enriched with a positive or negative sign: just or unjust, handsome or ugly, useful or useless
are pr0perties which may qualify their being and such being has always to have at least one
qualification of that class. A statute, a tool, a decision fully possess these characterizations.
(p- 350)
And on p. 355, he says: ‘All cultural objects exist so: as the existence of a meaning in
some aspect . . . if it is a law, it will be jusr or unjust.’ If the acts occurring in legal
processes are evaluated as just or unjust, then it is because the norms posited or
applied by these acts agree or disagree with normative principles of justice
presupposed in some way or other. What is just or unjust is the posited or applied
legal norm. It is only in virtue of the content of this norm that the act by which it is
posited or applied can be evaluated as just or unjust. It is just or unjust only in this
mediate sense. Thus the object of legal science has to be these norms; the acts by
which the norms are created or applied are the object of legal science only in so far as
they are qualified by legal norms as norm-creating or norm-applying acts, i.e. as they
are legal acts in this sense. Cossio asserts, in direct contradiction with his claim that
the law as a cultural object can be just or unjust: ‘The law does not seek nor tend to
realize justice because the Law itself already is positive justice’ (375 f.). If so, then the
law—even if it is a cultural object—cannot be just or unjust, but only just; and that is
an inadmissible identification of law and justice.
Cossio’s article is a phenomenology of the judicial decision, and he characterizes
judicial decision is a norm, then it cannot be a description. As a norm, it is a
prescription. And since Cossio considers the judicial decision (which is a norm) to be
conduct in its ought-to-be. The decision, as an individual norm, is that and nothing
else according to the egological theory’ (p.396). If, as Cossio correctly states, the
judicial decision is a norm, then it cannot be a description. As a norm, it is a
prescription. And since Cossio considers the judicial decision (which is a norm) to be
the object of his inquiries into legal science, he falls into an insoluble contradiction
with his thesis that the object of juristic knowledge is not norms, but human
behaviour.

Note 31

Morality and law judge both the act and the agent: they could not merely consider one of these
two elements. By the very fact that one judges the individual and not his acts, there is an
admission that he and his acts are solidary. However, if one is concerned with him, it is because
of his acts, which can be qualified independently of his person. While the notions of
responsibility and of guilt or merit are related to the person, the notions of norm and of rule are
primarily concerned with the act. However, this dissociation of the act and the person is never
more than partial and precarious. The merit of a person can be considered independently of his
acts, but this would only be possible within a metaphysic in which reference to the acts would
be provided in the context. On the other hand, if rules prescribe or prohibit certain acts, their
moral or juridical significance resides in the fact that they are meant for persons. The terms of
the act—person relation are independent enough to permit, when necessary, the use of each one
on its own, but they are sufficiently connected for entire spheres of social life to be
characterized by their joint intervention. (Perelman and Olbrechts-Tyteca, 1969: 295—6)

This account of the relation between act and person in the moral and legal sphere is-
wrong. Act and person cannot be dissociated. It is not possible to determine the
merit of a person independently of his acts. It is the acts which are meritorious; if a
person is characterized as meritorious, then this simply means that the acts he
performs are meritorious or that he is able and willing to perform such acts. A person
is made ‘responsible’ for a certain behaviour by the fact that a moral or legal norm
makes this behaviour the condition for a sanction directed against this person and
296 Notes 31—33

thereby makes him the object of the sanction. This also applies to guilt. A person is
‘guilty’ of behaviour which is a delict because a moral or legal norm makes it the
condition for a sanction. The decisive relation is that between the act—more
correctly, the behaviour—and the reaction against this behaviour decreed by
morality of law: cf. below, ch. 32. For morality and law to be ‘addressed’ to persons
simply means—as is indicated in the text—that the norms of morality and of law
specify the personal element of the behaviour they command or forbid.

Note 32

The various attempts to deny that willing is a process different from thinking and
feeling (i.e. to deny that it cannot be reduced to these mental processes) have been
unsuccessful (in my Opinion). In so far as they rest on the fact that it is not possible to
discover by introspection a willing which is the immediate cause of the stimulation of
the muscles, they miss their goal for the reasons indicated in the text. Most recently
Gilbert Ryle has claimed that ‘the concept of volition’ is a ‘useless concept’ (1949:
62).

Note 33

G. Frege distinguishes between Sinn and Bedeutung in a way which differs from that
indicated above: ‘It is natural, now, to think of there being connected with a sign
(name, combination of words, letter), besides that to which the sign refers, which
may be called the reference [Bedeutung] of the sign, also what I should like to call the
sense [Sinn] of the sign, wherein the mode of presentation is contained’ (1952: 57). By
the Bedeutung of a word or a phrase, Frege thus understands the object denoted. The
words ‘morning star’ and ‘evening star’ have the same Bedeutung since they both
denote Venus, but they do not have the same Sinn. On p. 59 he says: ‘The reference
and sense of a sign are to be distinguished from the associated idea.’ The word ‘moon’
denotes a real object existing in the external world, which must be distinguished from
the idea I have of this object in my mind; and he comments: ‘Idealists or sceptics will
perhaps long since have objected: “You talk, without further ado, of the Moon as an
object; but how do you know that the name ‘the Moon’ has any reference?” ’ (p. 61),
in other words (using a different terminology than Frege’s): whether the word
‘moon’ denotes an object existing in the external world. Frege answers: ‘. . . we do
not intend to speak of our idea of the moon’, that is, it is our intention to speak of an
object existing objectively in the external world when we say, for instance, ‘The
moon is smaller than the earth.’ This sentence is supposed to be about a real object
existing objectively in the external world, and not the subjective idea of the moon.
But the idealistic or sceptical objection to this is: That may very well be our
intention, we may believe that the word ‘moon’ denotes a real object existing in the
external world and not only in our inner world as an idea, but this belief has no
foundation. We know nothing of an external world, of things in themselves; we can
know nothing thereof and we need to know nothing thereof. Consequently we can
also say nothing thereof. And so we cannot say that a linguistic expression denotes a
thing existing objectively in the external world, that the signification of a linguistic
expression is such a thing. But from this it does not follow, as Frege appears to
assume, that the linguistic expression has no signification, but only that the object to
which it relates exists only in our inner world. The problem of the signification of a
linguistic expression is independent of the problem of the reality of the external
 Notes 33—36 297

world, indeed just as the latter problem is totally irrelevant for the whole domain of
our knowledge.

Note 34

Gilbert Ryle says: ‘So the notion of having meaning is at least partly different from
the notion of standing for’ (1957: 244). And on p. 246: ‘. . . It is not always the case
that for a word to mean something, it must denote somebody or something.’ He
gives the following example:
I can use the two descriptive phrases ‘the Morning Star’ and ‘the Evening Star’, as different ways
of referring to Venus. But it is quite clear that the two phrases are different in meaning if the
two phrases have different meanings, then Venus, the planet which we describe by these two
different descriptions, cannot be what these descriptive phrases mean. For she, Venus, is one
and the same, but what the two phrases signify are different. (p. 244)

That is incorrect. The words ‘Morning Star’ and ‘Evening Star’ have different
significations only in relation to the two different properties of the planet Venus. In
relation to the thing which has these two properties they have the same signification:
both expressions signify, denote, refer to the same planet whose name is ‘Venus’.
This example does not show that ‘signifying something’ and ‘denoting something’ (or
‘referring-to-something’) are different concepts.

Note 35

A. Meinong (1983: 24 ff.) distinguishes between ‘signification’ and ‘to signify’:

‘Signification’, as especially deserves to be noted in the case of a ‘—tion’ word, is not the same
thing as ‘to signify’ . . . As a part of life, signifying is surely always a signifying for someone . . .
This signifying is tied to the fact of a word’s being an expression. . . in the sense that a word
signifies only to the extent that it expresses an intellectual experience, the object of the
experience 1n that case constituting the signification of the word (p. 25) A word signifies
something so far as it expresses a presenting experience; the object that this experience presents
is the signification. (p. 27)
That may agree with common usage. But this common usage is misleading.

Note 36

Ryle says: ‘Meanings are not things and not even very queer things’ (1957: 256) That
is correct. But what is signification, or as Ryle asks at the beginning of his paper
(pp. 239f. )2 ‘What are meanings of?’ On pp. 256f., he answers. ‘Learning the meaning of
an expression is more like learning a piece of drill than like coming across a
previously unencountered object. It is learning to Operate correctly with an
expression and with any other expression equivalent to it.’ And on p. 254: ‘To know
what an expression means . . . is to know the rules of the employment of that
expression.’ In other words: learning what an expression signifies is learning how to
use it correctly, becoming familiar with common usage. But a person can use an
expression correctly only if he knows what it signifies in common usage. By referring
to common usage Ryle fails to give any answer to the question he himself raised at
the beginning: ‘What are meanings?’ What is it to signify? He is merely postponing
298 Notes 36—38

the question. And in so doing, he follows Ludwig Wittgenstein’s linguistic

philosOphy. Cf. Endnote 39, below.

Note 37

‘A person who understands the signification is one who, from its presence, actually
makes the inference to what is designated. If words are thus signs of mental
occurrences in the speaker, then the listener will understand a piece of discourse to
the extent that, on the basis of what is heard, he takes note of the mental occurrences
that have found expression in language’ (Meinong, 1983: 34).

Note 38

Against the definition of a norm as the meaning of an act of will, it has been claimed
that legal norms are not—as they are usually represented—the will of the State, or (in
monarchies) the will of the monarch, or (in republics) the will of the people or of
Parliament. These representations, it is claimed, are fictions. The State—as a juristic
person—cannot have a will in the true sense of the word. Only human beings can
have a will. The statement that the law is the ‘will’ of the State is merely a
metaphorical way of saying that the law is a normative order whose unity is
expressed in the personification of the State. (Cf. my Pure Theory of Law (1967),
305.) If we leave aside customary law (of which we shall speak later) and if we
consider only so-called enacted law, then legal norms are posited by particular acts,
which are the acts of particular people. In a monarchy, it is the acts of the monarch,
and in a republic, it is the decisions of an assembly of the people or of a Parliament
elected by the pe0ple. The norm-positing act of the monarch consists mostly in his
signing a document containing sentences prescribing that certain people are to behave
in certain ways. By this act, these sentences become valid norms. But they would do
so—so goes the objection against the Will theory—even if the monarch knew
nothing of the contents of the document and consequently did not have the will of
which these norms could be the meaning. It is correct that the monarch need not
know the content of the norms he posits by signing the document. But he has to have
willed the behaviour which represents the act of signing, for otherwise he would not
have performed it—; and he has to know that the document he is signing is the draft of
a statute, that he is positing norms by signing it, that norms are the meaning of his
act. He wills this meaning when he wills the act of which the norms are the meaning.
If it turned out that the monarch had signed a document submitted to him without
knowing that it was the draft of a statute, then no norm-positing act would have
occurred. But if according to the valid constitution a norm-positing act obtains even
in such a case, then, in virtue of the valid constitution, the norms in question would
be the meaning of the act of will by which the document was submitted to the
monarch. A member of an assembly of the people or of a Parliament who votes for a
bill need not know the content of the bill in order for the bill to become a statute. But
he must know that he is voting for a bill. If according to the valid constitution a bill
becomes a statute even when a majority vote for it and some or all of those voting
were unaware that it was a bill, then, in virtue of the valid constitution, the statute is
the meaning of the act of will of those who put the bill to the vote or who submitted
it to the assembly of the pe0ple or to Parliament. If there is a valid norm, then
someone must have had the will of which it is the meaning.
Concerning the opinion that norms, in particular the norms of morality, do not
 Notes 38—40 299

have their source in the will but in reason, or to put it in non-metaphysical language,
that norms are not the meaning of acts ofw111 but of acts of thought, cf. below, ch. 18.

Note 39

The example of the cock calling the hens by crowing is taken from Ludwig
Wittgenstein: ‘We say: “The cock calls the hens by crowing”—but doesn’t a
comparison with our language lie at the bottom of this?’ (1953: § 493). What he is
driving at is that the crowing of the cock is compared to a linguistic expression which
has the meaning of a command. For he says: ‘Isn’t the aspect quite altered if we
imagine the crowing to set the hens in motion by some kind of physical causation?’
That is: Could we still say ‘The cock calls the hens by crowing’ if we described the
event as a mere causal connection between the outward behaviour of the cock and the
gathering of the hens? As he so often does when he asks a question, Wittgenstein
offers no answer. We can only surmise that he was of the opinion that the aspect
would not be altered. For the following passage begins with the word ‘but’: ‘But if it
were shown how the words “Come to me” [thus the linguistic expression of a
command] act on the person addressed, so that finally, given certain conditions, the
muscles of his legs are innervated, and so on—should we feel that that sentence lost
the character of a sentence?’ Wittgenstein is now contrasting the situation in which
the cock crows and the hens gather, with that in which a person says to another
person ‘Come to me’ and the other person comes to him. And Wittgenstein asks:
What is the consequence of describing this situation as a mere causal connection
between the uttering of the sentence ‘Come to me’ and the reaction of the addressee?
The question here is whether the sentence ‘Come to me’ loses the character of a
command and the reaction of the addressee the character of compliance with a
command, if we describe the state of affairs consisting in one person’s saying ‘Come
to me’ to another and the other person’s coming to him, as a mere causal connection
between the uttering of the sentence and the movement of the addressee, without any
reference to the inner processes within the speaker and the addressee. Wittgenstein
seems to be of the opinion that the answer is ‘No’.
Many other comments in the Philosophical Investigations show that Wittgenstein
tries to describe the state of affairs consisting in command and compliance as a mere
causal connection between the external events of the uttering of a linguistic
expression and the reaction thereto without any reference to internal processes within
the commander and the addressee.

Note 40

Shia Moser (1956: 192) distinguishes between two kinds of compliance with a
command: compliance in a narrower sense when the addressee assents to the
command, and compliance in a broader sense when the commanded behaviour is
brought about by some cause other than assent to the command.
In the stricter sense of the word a command is obeyed only when there is a willingness to act in
accordance with it; in other words, when there is assent to the command. In a wider sense we
may speak of obeying a command even if the action is caused by some other factor, the
command being neither a necessary nor a sufficient condition for that action. (p. 192)
But Moser makes certain restrictions: when a command is not taken seriously (e.g.
when a drunken passenger cries ‘Everyone out!’ before the train reaches the end of
the line) or when the addressee no longer remembers the command.
300 Notes 41—43

Note 41

Consequently R. M. Hare is wrong when he says:

If we assent to a statement we are said to be sincere in our assent if and only if we believe that it
is true (believe what the speaker has said). If, on the other hand, we assent to a second—person
command addressed to ourselves, we are said to be sincere in our assent if and only if we do or
resolve to do what the speaker has told us to do. (1964: 19 f.)
A person can sincerely assent to a command and yet not be able to comply with it
because he is unable to will to do what -he ought to do, even though he sincerely
believes he ought to do it.

Note 42

e.g. Manfred Moritz:

Whoever commands something, wills something. The commanding subject wants the goal of
the command to be realized. In the imperative ‘Shut the door!’, what is willed is the shutting of
the door, and similarly in other cases . . . The command is addressed to another subject, the
command-subject, and the realization of this goal is demanded of him. (1941: 220)
Thus what the commanding subject wills is not ‘the shutting of the door’ but ‘that the
command-subject shut the door’. It is the latter who wills ‘the shutting of the door’
when he complies with the command. The commanding subject wills that the
command-subject is to shut the door.

Note 43

This is what John Chipman Gray (1927) has in mind when he claims that ‘All law is
judge-made law.’ It is correct that the law does not become fully valid once the
general norm has been posited and that the judge’s positing of the individual norm
corresponding to the general norm must supervene in order for it to be possible to
speak of the full validity of the law, of law being valid in the full sense of the word.
In the article cited earlier (Endnote 29), Cassius J. Keyser identifies the law—i.e.
the object of legal science—with the act of the judicial decision: ‘. . . the subject
matter of legal science is the distinctive behaviour of judges’ (1928: 419). But it is not
only the courts that create law; it is also—and chiefly—the legislators. The difference
between the functions of the latter and the former is that normally the latter posit
general norms and the former individual norms. But Keyser asserts—like Gray—
that the general norms posited by legislators are not law, ‘that a statute (a verbal
formula set up by a legislature) is not itself a law’. So what is ‘statutory law’? ‘A
statutory law is in fact the judicial interpretation of a statute’ (p.419). That means
that a statute is the interpretation of a statute. But what is this statute which the judge
interprets? ‘A verbal formula’? But so is a judicial decision. And anyway, the
function of the judge does not consist at all in merely interpreting the statute, but
above all and mainly in applying to the concrete case the general norm created by the
legislators and grounding his decision as law by appealing to the statute. What the
judge applies and uses to ground the legality of his decision is not the interpretation
of a statute, but rather the statute as interpreted by him. Keyser says: ‘The statute
itself is to be rightly viewed, I believe, as one, though it is often the controlling one,
of the circumstances conditioning judicial behavior’ (p. 420). Just like Gray, Keyser
 Notes 43—45 301

ignores the essential difference between the statute and those non-positive moral-
political principles which motivate a judge’s decision. It is only the statute which is
binding on the judge—according to the meaning of the legal order—even if the
statute empowers the judge to decide certain cases on the basis of principles he
believes from a moral-political viewpoint he ought to apply to these cases.

Note 44

Hence the Swedish legal phiIOSOpher Axel Hagerstrom is wrong when he says ‘an
order, command which does not reach the person for whom it is intended is only an
empty sound and not a real order’ (1953: 3). It certainly is a real order in the area of
law, where the principle ‘Ignorance of the law is no excuse’ applies.

Note 45

Some people deny the normative character of law, and try to understand law as an is—
rule. Morris R. Cohen refers to this: ‘A great many efforts have been made to avoid
this categorical distinction between the existential or descriptive and the regulative or
normative . . . By far the most extensive effort to eliminate the normative aspect of
law is to make law identical with custom, with the ways that in fact prevail in social
life’ (1933: 205 f.). This last remark is not true of jurisdictions where statute-law
predominates. But even when the law is merely customary law—i.e. law created by
way of custom—it cannot be understood as an is-rule. Custom is a fact (i.e. an Is),
just as the act of legislation is an Is. The law created by custom is a norm, an Ought.
That custom creates law presupposes the constitutional norm that one ought to
behave as pe0ple are accustomed to behaving, and that the act of granting the
constitution creates norms presupposes the Basic Norm that one ought to behave as
the constitution prescribes. The same is true of law created by legislation. Those who
try to understand law as an is-rule do so because they fail to distinguish between Is
and Ought, between an act (which is an Is) and its meaning (which is an Ought). The
pr0position that people behave in certain ways in certain circumstances is a statement
describing social reality. But the law is made up of norms prescribing how peOple
ought to behave in certain circumstances. It is not the norms of law, but the
propositions of legal science which are statements, and they are statements about
ought—norms.
The Opinion that the law is an is-rule may also rest on the mistaken assumption
that a ‘science’ can only comprise statements about is-facts, and so the law (as the
object of a science) has to be an is-rule. From this mistaken assumption the
conclusion is drawn that legal science has to be legal sociology. But a legal
sociology which tries to answer questions concerning the causes of the acts by which
law is created, and the effects of these law-creating acts, must presuppose the law as
norm. It does not describe the law, but rather law-creating behaviour and law—
observing or law-violating behaviour. Whether what is called dogmatic or
‘normative’ jurisprudence—describing legal norms and their mutual relations—is a
‘science’ or not is a subsidiary, terminological question. Those who say it is not
usually do so because they assume that normative jurisprudence posits norms, when
in fact it merely describes them.
302 Notes 46—47

Note 46

Kurt Baier defends the view that morality has no normative character. He says: ‘. . .
morality cannot be any sort of law, however exalted’ (1958: 177). He refuses ‘to think
of morality as a sort of law’ (p. 178). He rejects ‘law as a model of morality’. But he
asserts that law can be morally evaluated, that ‘legal systems’ can ‘be criticized on
moral grounds’, and yet denies that morality is a ‘superlaw’. He says: ‘Law is not,
therefore, an- adequate model of the nature of morality’ (p. 179). This means that
morality is not norm (like law), and has no normative character (though he does not
himself use the term ‘norm’). This is all the more incomprehensible as Baier speaks of
‘the imperatival nature of morality’ (p.179), and declares ‘I take it as established,
then, that it is the very meaning of “a morality” that it should contain . . . a body of
rules or precepts . . . morality is a comparatively sophisticated system of rules’; and
he speaks not only of ‘moral rules’ (e.g. p. 195), but also of ‘obedience’ to the rules of
morality (p.309), of ‘moral prohibitions’ (p.231), and of ‘demands of morality’
(pp. 247 f.). The ‘rules’ and ‘precepts’ of morality can only be norms. It is only as
norm that morality can demand behaviour, it is only as norm that it can be ‘obeyed’,
it is only as norm that it can ‘prohibit’ something.
On p. 178 he gives the following reason for his claim that morality is not a sort of
law—i.e. not norm: ‘If morality is a perfect law, then there must be a perfect
legislator: God. But this is precisely the objection to law as a model of morality.’
Baier clearly overlooks the fact that law can be created not only by way of legislation
but also by way of custom, that customary law is law without a legislator, quite apart
from the fact that moral norms can be created by enactment just as much as legal
norms can, i.e. by the act of an authoritative person. Thus Jesus posited the moral
norm ‘Love your enemies.’ No one can seriously deny that Jesus acted as a moral
legislator or that Christians consider him to be their moral legislator, i.e. an authority
positing moral norms.
Another argument of Baier’s to the effect that morality is not a sort of law—i.e.
not norm—is: ‘The law of the group cannot be illegal . . . on the other hand . . . the
morality of the group may be wrong’ (p. 179). If ‘morality’ is a system of ‘precepts’
valid within a group, then as a valid normative order, morality can no more be
‘wrong’—this can only mean ‘immoral’—than the law of a group can be illegal. The
morality of one group can be different from that of another, but that does not mean
that it is immoral, as long as it is valid within a group. If morality M1 is
immoral because it differs from M2, then M2 is also immoral because it differs from
MI. There would then be no moral order which was not immoral. We would then
have to assume—as Baier does—that there is one alasolute morality which is valid;
but this presupposes that this morality is posited by God’s will, and this is exactly the
assumption Baier rejects: ‘If morality is a perfect law, then there must be a perfect
legislator: God. But this is precisely the objection to law as a model of morality’
(p.178).

Note 47

Manfred Moritz says: ‘A judicial decision is motivated by the statute, when it is

justified to say that, if the judge pronounces this decision, then he obeys the statute,
i.e. if it is justified to say that this act of the judge constitutes compliance with the
command’ (1954: 127). Moritz claims that since it is possible to determine from the
statute—i.e. from a general command addressed to a class of unnamed persons—
when a member of this class has observed the general command, it is not necessary
 Notes 47—48 303

first to derive from the general imperative an individual imperative applying to the
individual judge, in order to be able to discover whether a judge has observed the
general norm (the statute) in rendering his decision: ‘Even without deriving such an
individual imperative from the general command, it is possible to decide whether or
not the individual subject of the norm has observed the general imperative. A detour
by way of an individual imperative is not necessary’ (p. 108). The explanations given
in the text indicate why ‘a detour by way of an individual imperative’ is necessary,
and why this imperative cannot be ‘derived’ from the general command.
It is most significant how Rigoberto Juarez Paz tries to justify the normative
syllogism. He begins with Smith’s command to Jones ‘If it rains, wear your coat.’
The normative syllogism is then: '
If it rains, wear your coat
It is raining
Wear your coat. (1959: 200)
Of this Juarez Paz says: ‘. . . the point of Smith’s saying “If it rains wear your coat!”
to Jones is to cope with the case where, if it does rain, Smith is not there to say:
“Wear your coat!” ’ Thus he assumes that the individual norm ‘Wear your coat’ is
valid even though it is not the meaning of a real act of will. This he justifies in the
following way: ‘. . . the conditional imperative has the role of bringing it about that
when Jones is rained upon, he is confronted by the imperative “Wear your coat” as
though uttered by Smith in his presence’ (p. 201). This is a typical fiction. What this
argument amounts to is: in order to be able to consider the individual norm to be
valid, we must pretend there is an act of will of which it is the meaning. Juarez-Paz
assumes the individual norm is ‘encapsulated’ in the general norm and declares: ‘it
might be sensible to speak of giving reasons (in a quasi-logical sense of “reason”) for
an imperative, without being committed to the idea that imperatives can be
conclusions of arguments’ (p.202). But the essence of the logical inference of an
individual statement or norm from a general statement or norm is that the individual
statement or norm is implicit in the general statement or norm.

Note 48

Hare claims: ‘. . . there is one kind of imperative conclusion which can be entailed by
a set of purely indicative premisses. This is the so—called “hypothetical” imperative’
(1964: 33 f.). In other words, a conditional Ought can follow from Is-statements. He
gives the following example of a ‘hypothetical imperative’: ‘ “If you want to go to the
largest grocer in Oxford, go to Grimbly Hughes.” This seems to follow from, and to
say no more than: “Grimbly Hughes is the largest grocer in Oxford.”’ To this it must
be objected that the sentence ‘If you want to go to the largest grocer in Oxford, go to
Grimbly Hughes’ expresses an imperative—an Ought—only linguistically and not
logically. The linguistically correct formulation is ‘If you want to go to the largest
grocer in Oxford, you must go to Grimbly Hughes.’ This is the statement of a
means-end relation, and as indicated in the text, such a relation is not an Ought or an
imperative, but a Must, a relation of cause and effect.
From the truth of the statements
1. Grimbly Hughes is the largest grocer in Oxford, and
2. You want to go to the largest grocer in Oxford,
the imperative ‘Go to Grimbly Hughes’ does not follow by way of a logical process
of thought. For this imperative (or command) is valid only if it is the meaning of an
act of will, and such an act cannot be reached in this way.
304 Note 49

Note 49

Bernhard Bolzano discusses imperative sentences under the title of ‘PrOpositions

which deal with psychical phenomena’ (1972: 190—2). He says an ‘Ought’ is
contained in an imperative, and that the imperative is the expression of a will. A
person who says ‘Come!’ wills that someone else is to come. Bolzano calls a
command or order a ‘problem’. A command is a ‘problem proposition’. It asserts that
there exists a will directed to the behaviour of another. The command ‘Shut the door’
therefore means: I will that you are to shut the door. Bolzano does not distinguish
between the act of will—the commanding—and the meaning of this act—the
command.
On the other hand, Edmund Husserl insists on the need to distinguish between the
sychical act—the ‘meaning-conferring experience’—and the ‘meaning’ (1970: 250—
1, 284 ff.). But the two are all too often confused. Thus Walter G. Becker says:
According to Gehlen’s position, there must therefore be acts of choice if an act is to be
characterized as a norm: ‘act implies a choice’. But furthermore, the embryonic situation for
norms exists only in that humanly organizing act of choice which is directed by the specifically
human capacities of soul and mind, will, intellect and reason, in the sympathetic act of positing
(as Opposed to the apathetic real act or the antipathetic delictual act), in other words, in the
judgment. In the judgment, there is a structure of knowledge and cognition (‘by knowledge’)
but of course also a structure of will (‘by will’). (1952: 399)
That the norm-positing act is not an act of judgment is not important here. The
important point is that Becker thinks he can characterize an act as a norm.
On this point, Manfred Moritz is right when he says that the meaning of the
imperative ‘Do this’ cannot be reproduced by the judgment ‘I want you to do this’
(1941: 224). Admittedly, Moritz rejects the interpretation of an imperative as a
judgment about the willing of the commanding subject, as he says on p. 222: ‘The
[commanding] subject does not want to inform, but to cause behaviour . . . that is the
meaning of an imperative.’ That is, the imperative or command is not a statement or
judgment. Nevertheless Mortiz assumes that a statement is implicit in the imperative. On
p. 225, speaking of the theory which interprets the imperative as a judgment, he says:
This theory takes account of what is said in the imperative, but overlooks the imperative
dimension, the commanding. Nevertheless, such an imparting of information does enter into
the imperative, and this fact was used by these theories to support the view that we are dealing
with a judgment. The subject of the command must be made aware of what is expected of him.
But that is precisely the point of the imperative component itself, the demand. And this
imperative component consists in the imperative phrasing.

But the imperative can hardly be ‘added’ to the imparting of information if this
communication ‘enters into’ the imperative. ‘We can also put it this way: what is
asserted in the imperative can be understood as a judgment, but the imperative
element is only added to this element. It is superimposed on it, so to speak.’ In other
words: the imperative—more correctly: the command, the order, the norm—is also
a statement. But the imperative or norm is not a statement. Nor does it contain a
statement. That which the norm commands, the behaviour it prescribes, is not
asserted in the norm, i.e. it is not described, but prescribed. Moritz is confusing the
imperative (i.e. the norm) with the statement ahout the norm.
Nevertheless, it cannot be denied that very prominent logicians do likewise. Thus,
even though he clearly distinguishes between imperative sentences and statement- or
assertion-sentences when he says that the latter are true or false while the former do
‘not call for belief but, obedience’ and do not intend ‘to communicate a truth’ as the
latter do, Sigwart says: ‘No doubt the Imperative also includes the statement that the
 Notes 49—50 305

speaker wills the act which he commands’ (1895: i. 17). But this ‘statement’ is a
completely different sentence from the imperative or command; it is a sentence
which has a completely different signification from the imperative sentence, and so
cannot be included in the imperative sentence.
Edmund Husserl claims that the rules of every normative discipline—by this he
means the norms which this discipline ‘puts forth’—‘must have a theoretical content
separable from the notion of norrnativity (of the “shall” or “should”)’ (1970: 81—2), that
every normative proposition of, e.g., the form ‘An A should be B’ [e.g. ‘A soldier is to be brave’
understood as a norm, as synonymous with the imperative ‘Soldier, be brave!’] implies the
theoretical proposition ‘Only an A which is B has the properties C’, in which ‘C’ serves to
indicate the constitutive content of the standard—setting predicate ‘good’. [Namelyz ‘Only a
brave soldier is a good soldier.’] (pp. 87—8)
But Husserl adds: ‘The new proposition is purely theoretical: it contains no trace of
the thought of normativity.’ The ‘theoretical’ sentence is indeed a ‘new’ sentence, as
Husserl himself has to admit, since it is completely different from the ‘normative’
sentence and so cannot be included in it. The theoretical sentence ‘Only a brave
soldier is a good soldier’ is perfectly equivalent to the statement-sentence ‘A soldier is
to be brave.’ For something’s being good simply means that it is decreed to be
obligatory in a norm. The theoretical sentence formulated by Husserl is a typical
example of a declarative sollen-sentence, i.e. a statement about a norm. Just as the
sentence which states that the commander wills something is completely different
from the normative sentence expressing the command—and Husserl admits this by
his distinction between ‘meaning-conferring experience’ and ‘meaning’—the sollen-
sentence which is a norm is, in virtue of its signification if not of its wording,
completely different from the sollen-sentence which is a statement uhout a norm.
Failure to draw this distinction plays an important part in the attempts to prove that
logical principles are applicable to norms. Cf. below, ch. 51.

Note 50

A typical example of the identification of Ought with the Ought of a particular

morality is to be found in Hagerstrom (1953: 201 ff.). Since he considers there is only
a moral Ought, he rejects the concept of a legal Ought:
For that which distinguishes the consciousness of moral obligation under all circumstances is
that one feels this ‘command’, in comparison with all other commands, to be authoritative. Just
this command, before all others, ought to be obeyed; or, to put it quite plainly, to obey this
command is the only right course of action . . . It is clothed with a special sanctity through
standing out as the command which I ought to obey. Suppose, then, that we are to understand
by moral obligation that one ought to act in a certain way. Then there is no common genus
whatever under which there fall both this kind of obligation, and that which is called legal and is
said to consist merely in the fact that one is the object of commands of a certain external power.
For the latter denotes a de facto relationship, and the former an ‘ought to happen’. And there is
no common genus for the purely factual and the ‘ought’. (pp. 207 f.)
Hagerstrom acknowledges the duality of Is and Ought, but he denies that the ‘rules
of law’ prescribe that one ought to behave in a certain way, i.e. that they are norms in
the specific sense of ought-rules. It is only the moral Ought which is a ‘genuine
ought’ (p. 222). If the ‘rules of law’ are not ought-rules, they can only be is—rules. But
it is clear that they are not, that the legal rule connecting theft with a penalty does not
have the meaning ‘If someone commits theft, he is punished’, since there are many
cases when a thief is not punished.
306 Notes 51—52

Note 51

Manfred Moritz says: ‘The following sentence is sometimes asserted or presupposed:

An act which is a duty is an act which does not exist. If the action has been performed
by the person subject to the duty, then the action is no longer a duty’ (1951: 176).
Moritz sees a problem in this:
If the sentence ‘The action is a duty’ is a judgment, the sentence quoted above creates a
difficulty. The sentence ‘Action A is a duty if it does not exist, and it is not a duty if it is
performed’ implies that a property is asserted of an action A which does not exist. That is, when
the action does not exist, a property is attributed to it. But the converse is also valid: when the
action exists (i.e. is performed), it no longer has the property ‘to be a duty’. The action and its
property have ‘opposite modes of existence’: if the action exists, the property does not, and the
prOperty exists if the action does not.
But this difficulty exists only so long as one fails to recognize that the action in the
mode of Ought and the action in the mode of Is are two different objects of
statements. The fact that we can assert something of a substrate in the mode of Ought
which we cannot assert of the same substrate in the mode of Is, and vice versa, is no
more of a difficulty than the fact that we can assert different things of different
objects. The statement that an action is a duty refers to an action in the mode of
Ought and cannot refer to an action in the mode of Is. Moritz thinks there is a
difficulty in the fact ‘that a prOperty is attributed to an object which does not exist’
(p. 177). And he thinks this difficulty can be resolved by considering ‘being a duty’
not to be a property of an action. The sentence ‘Action A is a duty’ would then mean
‘Action A is the content of a duty——imposing command.’ That is correct. But if action
A is the content of a duty--1mposing command (i. e. of a norm which decrees A to be
obligatory), we can say that it is a property of A to be the content of a prescribing
norm, of an Ought. But 1t is A—the modally indifferent substrate—in the mode of
Ought which has this property, and not A 1n the mode of Is. It IS not that the action
and its property have ‘opposite modes of existence’—as Moritz says—but rather that
action A has two different modes of existence: A in the mode of Ought and A in the
mode of Is.

Note 52

If in making an objective value-judgment, we went beyond the relation of the

behaviour to be evaluated to the norm whose existence is purely ideell, to the real act
of will of which this norm is the meaning, and we asserted in the value-judgment the
relation of the real behaviour to the real act of will—for instance, in the case of a legal
value-judgment, we characterized a behaviour as legal because it agrees with the
legislator’s will—then we could conceive of this objective value-judgment as a
judgment of reality. But the objection to this is the fact that objective value consists
precisely in a behaviour’s agreeing with a norm which is presupposed to be valid—
why it is presupposed is irrelevant here—and not in its agreeing with a will of which
the norm is the meaning.
E. Durkheim defends the View that there is no essential difference between value-
judgments and judgments of reality: ‘From the foregoing we have seen that there is
no difference in nature. A value judgment expresses the relation of a thing to an ideal.
The ideal is, like the thing, a given reality itself although of a different order. The
relation expressed unites two given terms as in a judgment of reality’ (1953: 95).
Durkheim ignores subjective values. He considers only objective values and does not
 Notes 52—54 307

speak of a relation to a norm presupposed to be valid, but of a relation to an ‘ideal’.

This is not a very fortunate terminology. For if the judgment that a certain behaviour
agrees with a certain positive legal norm—is in accordance with the law—is a value-
judgment, it is difficult to call this norm of positive law always an ‘ideal’. For the
norm 1n question may be considered to be the exact opposite of what we call an
‘ideal’. Durkheim realizes that the ‘ideal’ is a reality of a special kind. But his
comments about the nature of the ‘reality’ of the ideal are not very clear: ‘These
ideals are simply the ideas in terms of which society sees itself and exists at a
culminating point in its develOpment. To see society only as an organized body of
vital functions 15 to diminish 1t, for this body has a soul which 15 the composition of
collective ideals’ (p. 93). In other words, the i‘deals’ are requirements, i. e. the
meaning (prescribing a certain behaviour to individuals) of acts of will of society
understood as a body animated by a soul. But even if we accept this socio-
metaphysical interpretation of the norms of a positive morality or positive legal
system, we must distinguish between the real act of will of society understood as a
body animated by a soul and its meaning, the requirement or norm whose existence
(i.e. validity) is of a completely different kind from the existence of the act of will
which is a causally determined social event occurring in time and space, made up of
the acts of individuals. Calling ideals ‘realities’, even if they are realities of a special
kind, i.e. social realities, has the dubious consequence of ignoring the’difference
between the existence of an act and the existence of the meaning of this act.

Note 53

Value and Being are totally coordinate concepts, and any derivation of one from the other is
impossible. We can twist and turn as we will, we will not succeed. To the question ‘What is
value?’ we answer—if we understand the word ‘is’ as the expression of existence rather than as a
mere c0pula—‘Value is not at all’. Value can no more be defined than the concept of Being.
Thus value is not ‘the property’ of a thing alongside its other sensible pr0perties . . . The claim
that value is the property of a thing, taken seriously, is fetishism. (Scheler, 1899: 83)
What Scheler is getting at here becomes intelligible only once we have distinguished
between the modes—‘Is’ and ‘Ought’—and their modally indifferent substrate.

Note 54

Hall speaks of ‘the intentional inclusion of existence in the basic character of value’
(1952: 16), and says on p.249: ‘Value includes fact in some sense.’ ‘Normative
sentences . . . correlate with and in some vague intentional fashion include
corresponding sentences declarative of fact.’ ‘A value is related to the fact that
corresponds (or would correspond) to it’ (p. 241). ‘It seems necessary to suppose that
in some way the structure of a value includes (and is not merely analogous) to the
structure of a fact—specially of the fact which would be valuable did it exist’ (p. 226).
Here Hall adds: ‘Yet this seems to conflict with another consideration’, namely,
‘Value and fact are independent. A value may obtain where the corresponding fact
(that with the same constituents) does not and vice versa.’ Hall is wrestling with the
problem of the relation between value and reality. The only way to resolve it is the
distinction between a mode and the modally indifferent substrate.
308 Notes 55—58

Note 55

In the Parmenides, Plato makes Parmenides deliver a criticism of the doctrine of

Ideas, in the course of which Parmenides asks Socrates whether he would make
‘absolute ideas of the just and the beautiful and the good, and of all that class?’ And
Socrates answers resolutely in the affirmative. ‘And would you make an idea of
man . . . or of fire and water?’ To which Socrates replies: ‘I am often undecided,
Parmenides, as to whether I ought to include them or not.’ ‘And would you feel
equally undecided, Socrates,’ Parmenides continues, ‘about things of which the
mention may provoke a smile? I mean such things as hair, mud, dirt, or anything else
which is vile and paltry; is it hard to decide whether each of these has an idea distinct
from the actual objects with which we come into contact, or not?’ To which Socrates
replies: ‘Certainly not . . . there would be an absurdity in assuming any idea of them’
(130c—d).

Note 56

Hans Wolf makes the pertinent comment that if the Ideas are abstract concepts, then
‘it remains unexplained how rules for concrete behaviour can be derived from
abstract concepts’ (1957: 198). It is also David Ross’s Opinion that the Ideas are
fundamentally values or ‘ideals’ (1951: 23 f.).

Note 57

It 1s also the case for Parmenides—who had a greater influence on Plato’s phiIOSOphy
than even the Pythagoreans—that Is and Ought, the real and the ideal, coincide.
Joel says that Parmenides tried ‘with all his might to understand the Ideal in a real
way and with all his might to purify the Real to make it ideal’ (1921: i. 428). For
Parmenides, ‘thought is both will and action’ (p. 422). Hence for him goodness is
truth. In his didactic poem (Freeman, 1971: ch. 28, fragment 1) he says that on the
path on which ‘Themis’ and ‘Dike’, law and justice, lead him, he experiences ‘well-
rounded truth’.

Note 58

The absurdity of this Being which is also non-being is powerfully manifested when
Plato makes Glaucon say: Being-which-is-not is ‘like the punning riddles . . . The
individual objects of which I am speaking [i.e. things of the sensible world, which
both are and are not] are also a riddle, and have a double sense: nor can you fix them
in your mind, either as being or not—being, or both, or neither’ (Republic 479b—c). To
which Socrates says: ‘Then what will you do with them? Can they have a better place
than between being and not-being? For they are clearly not‘ in greater darkness or
negation than not-being, or more full of light and existence than being.’ There cannot
be any degrees of reality, but there can be degrees of value, in the sense of subjective
value, i.e. different degrees of being—desired.
 Notes 59—60 309

Note 59

C. A. Brandis had already claimed that one could understand Aristotle’s metaphysics
only by supposing that ‘the divine thoughts somehow penetrate the world of things’
(1862: i. 484). Eduard Zeller rejects this interpretation on the ground that the idea of
the immanence of God in the world is foreign to Aristotle (1897: i. 415—16). But he
has to admit on p. 421: ‘So far as God is the first cause of motion, all motions in the
universe must proceed from Him; natural forces can only be an emanation of his
force, and natural causes a manifestation of his causality.’ Zeller also admits that
Aristotle, following the p0pular belief of the Greeks ‘who recognized and revered an
immediate exhibition of divine force in natural phenomena’, represents ‘God’ and
‘Nature’ as ‘synonymous’, since he says of God and of Nature that they do nothing
without a purpose.
Werner Jager also rejects the immanence theory: ‘God is one with the world not
by penetrating it, nor by maintaining the totality of its forms as an intelligible world
within himself, but because the world “hangs” (fiptntat) on him: he is its unity,
although not in it. As each thing strives to realize its own form, it realizes for its part
that infinite perfection which as a whole is God’ (1948: 385). If every being realizes
for itself what God is, it realizes God in itself: God is in every being. God cannot be
the unity of the world and not be in the world, for the unity of the world cannot be
outside the world. The unity of an object which is outside of this object is something
inconceivable, and it is wrong to attribute it to Aristotle simply because for some
reason or other he did not particularly stress the immanence of God in the world,
even though it follows inescapably from his metaphysical ontology. Furthermore,
Jager (p. 240) quotes the passage from the Eudemian Ethics cited earlier, in which the
immanence of God in the universe and in the human soul is clearly expressed. And
according to Jager the Eudemicm Ethics has to be accepted as a work of Aristotle’s.

Note 60

What we can find about practical reason in the writings of Aristotle which are
available to us is neither very clear nor free of inconsistency. Gustav Teichmiiller
remarks in his detailed study on the t0pic (1879: 107) that the concept of practical
reason belongs to those questions ‘which Aristotle answered so incompletely and in
which he chose to say so little that his real position can be understood only with a
complete mastery of the whole Aristotelian philosophy’. According to Teichmiiller
(pp. 40 f.), practical reason in Aristotle is a ‘penetration of reason and appetite’ or a
‘union of appetite and reason’, i.e. both knowing and willing. This is correct
according to various passages in Aristotle’s writings. And if it is correct, then reason
which prescribes particular behaviour to man must define the correct goal for human
behaviour. But how can even a complete mastery of the whole Aristotelian
philosophy get over the fact that we read in the Eudemicm Ethics that it is not reason,
i.e. thought, but virtue (‘excellence’) which defines the goal?
Does then excellence make the aim, or the things that contribute to that aim? We say the aim,
because this is not attained by inference or reasoning. Let us assume this as a starting-point. . . .
The end aimed at is, then, the starting—point of our thought, the end of our thought the starting-
point of action. If, then, of all correctness either reason or excellence is the cause, if reason is not
the cause, then the end must owe its rightness to excellence (but not the things contributing to
it). (11. 1227b22—35)
310 Notes 60—62

(The latter clearly owe their rightness to thought.) Or that we read in the
Nicomachean Ethics:
For excellence and vice respectively preserve and destroy the first principle, and in actions that
for the sake of which is the first principle, as the hypotheses are in mathematics; neither in that
case is it reason that teaches the first principles, nor is it so here—excellence either natural or
produced by habituation is what teaches right opinion about the first principle. (VII. 8. 1151a15—
18)
This is incompatible with the concept of practical reason. Takatura Ando refers to
bOth passages and has to admit that they are ‘most embarassing’ from the point of
View of Aristotle’s doctrine of practical reason (1958: 295).
Julius Walter has defended the view that Aristotle’s philosophy does not contain a
concept of practical reason in Kant’s sense. He says:
Reason must become practical in Order to be able to enter into an immediate relation with the
real world . . . This is the point where Aristotelian ethics shows an affinity with the Kantian
theory, an affinity which immediately changes into an opposition when AriStOtle gives a
negative answer and Kant an affirmative answer to the question ‘Can reason in itself be
practical?’ Kant says: ‘Will is nothing else than practical reason’ (iv. 412), while Arisrotle
supplements reason with a will without which reason could never be practical. (1874: 242 f.)
Walter considers that, for Aristotle, ethics is a theoretical discipline (pp. 157ff.,
pp. 537ff.).

Note 61

In his commentary on questions 57 to 79 of Summa theologica II—II, A. F. Utz

emphasizes ‘the law—making power’ of man’s practical reason: ‘St. Thomas’ Natural
Law theory sees in the natural decree of practical reason the immediate legislator of
the rights of man, but this points to something higher, namely the eternal legislator
above this world’ (1953: 444). If man’s practical reason is a legislator sub-
ordinate to a higher legislator, i.e. God as the legislator of the world, law-making
by man’s practical reason can only be law-making in virtue of a delegation from God,
i.e. ultimately law-making by divine reason; consequently, human reason is
‘practical’, i.e. legislative, only in so far as it participates in divine reason, that is, as it
is divine reason in man.
Utz says on p.482: ‘Natural inclination is also an inclination of consciousness, a
natural requirement of our reason which is thus naturally pre-given in us: it is
therefore a law inscribed in us by the Creator.’

Note 62

Another person who denies that ‘ought’ has any meaning is Ludwig Wittgenstein, for
whom all philosophy—and consequently also his own—is nothing but a ‘critique of
language’ (1961: prOp. 4.0031):
The correct method in philosophy would really be the following: to say nothing except what
can be said, i.e. propositions of natural science—i.e. something that has n0thing to do with
philosophy—and then, whenever someone else wanted to say something metaphysical, to
demonstrate to him that he had failed to give a meaning to certain signs in his pr0positions.
(Prop. 6.53)
 Notes 62—64 311

In other words, an ought-sentence is meaningless. ‘And so it is impossible for there

to be propositions of ethics’ (prop. 6.42). ‘Ethics is transcendental’ (prop. 6.421).
Karl P0pper interprets Wittgenstein in the following way: ‘every genuine
prOposition must be a truth-function of, and therefore deducible from, observation-
statements. All other apparent prOpositions will be, in fact, nonsense; they will be
meaningless pseudo-propositions’ (1957: 163—4). Similarly, G. E. M. Anscombe
(1959).
But an ought-sentence is not meaningless. The person who utters it means
something, and the person to whom it is addressed can understand it. For it is
possible that someone ought to do something, even though he does not do it, has not
done it, or will not do it. In light of the fact that there exists such a thing as morality
and law, it cannot be denied that besides Is there exists something different, Ought,
and that it is meaningful to distinguish between Is and Ought.

Note 63

Wilhelm Windelband says, following Kant: ‘To be free means to obey reason . . . But
reason can only rule when it is not only a system of representations, but a_ force of
evaluation, a power of feeling and willing. In this sense we call it practical reason’
(1904: 95). So-called ‘practical reason’ is essentially a willing and not a feeling. We
can only obey a command as the meaning of an act of will, it is only as will that
practical reason can ‘rule’. A reason which is simultaneously a cognitive function and
a willing function is the same self—contradiction as a ‘freedom’ (essentially connected
with this practical reason) which is simultaneously its exact opposite, namely, being
bound. According to Windelband—and this is in full agreement with Kant’s
doctrine—freedom of the will is being bound by the commands of practical reason.

Note 64

Max Scheler (1899: 8 f.) refers to the sharp division between reason and the activity of
the will which he believes he can find in Aristotle, and remarks: ‘We must give up the
idea of reason as an ethical foundation and accept this “sharp division”, or we must retain
this idea and move reason and the activity of the will closer together, for instance in the
sense of German idealistic philosOphy (especially Fichte’s)’ (p. 9). Scheler chooses the
first alternative. But since knowing and willing are indisputably two essentially different
functions, there is no other Option. Consequently Scheler says rightly about Kant that
the difference between theoretical and practical reason consists
in a difference in the activities of the faculty itself. That is, if in the first case [that of theoretical
reason] the activity (in the shaping of the given sensations) is supposed to be merely one of
ordering, in the other case [that of practical reason] it is supposed to result not only in an
ordering, but also in a partial suppression of the given material. The given sensations, through
the activity which reason exercises on them by its categories, are not supposed to be lost or are
supposed to be reorganized only in their content; they are only supposed to be brought into a
law-like, spatio-temporal organization, into an order. But the drives [with which practical
reason is concerned with its moral law] are certainly supposed to be brought into a law-like
Order, but that is not all; some of them must be directly suppressed. (p. 45)
That is not a very happy way of putting it. The essential point is that the two orders
are essentially different: one is an order of Is, the other an order of Ought, since the
former is ‘created’—in Kant’s sense—by cognition, and the other by willing.
312 Note 65

Note 65

The Kantian concept of a practical reason—that is, reason which posit moral
norms—is in direct opposition to Hume’s philosophy by which Kant, on his own
admission, was influenced. Hume decisively rejects any essential connection between
reason and morality. In the Treatise ofHumcm Nature he says:
Since morals, therefore, have an influence on the actions and affections, it follows, that they
cannot be deriv’d from reason . . . Morals excite passions, and produce or prevent actions.
Reason of itself is utterly impotent in this particular. The rules of morality, therefore, are not
conclusions of our reason . . . An active principle can never be founded on an inactive; and if
reason be inactive in itself, it must remain so in all its shapes and appearances . . . (p. 457)

And on p. 458:
I have prov’d, that reason is perfectly inert, and can never either prevent or produce any action
or affection. ’Twill be easy to recollect what has been said upon that subject. I shall only recall
on this occasion one of these arguments, which I shall endeavour to render still more
conclusive, and more applicable to the present subject. Reason is the discovery of truth or
falshood. Truth or falshood consists in an agreement or disagreement either to the real relations
of ideas, or to real existence and matter of fact. Whatever, therefore, is not susceptible of this
agreement or disagreement, is incapable of being true or false, and can never be an object of our
reason. Now ’tis evident our passions, volitions, and actions, are not susceptible of any such
agreement or disagreement . . . ’Tis impossible, therefore, they can be pronounced either true or
false, and be either contrary or conformable to reason . . . Moral distinctions, therefore, are not
the offspring of reason. Reason is wholly inactive, and can never be the source of so active a
principle as conscience, or a sense of morals.
In opposition to Hume, Stephen Edelson Toulmin tries to secure the function of
reason in the domain of morality—or ‘ethics’, as he usually says, since he does not
distinguish ethics from morality. His problem is ‘how far one can rely on reason in
coming to moral decisions’ (1960: 3). He thereby presupposes that reason is able to
distinguish between good and bad, and that logic has a place in the field of morality.
He says of his book on p. 131: ‘It might be taken logically, as an enquiry about the
kinds of change in behaviour characteristic of a decision based on “moral” grounds;
about the way in which reasoning must be designed to influence behaviour if it is to
be called “ethical”, and so on.’ And on p. 132: ‘We must therefore concentrate . . . on
the kinds of change in behaviour at which reasoning must be aimed, if we are to call it
“moral” or “ethical”.’ Toulmin thus assumes that ‘reasoning’, i.e. rational thought,
reason, ‘aims’ at human behaviour which can be judged to be ‘moral’ or ‘ethical’
(these being synonymous). But it is not reason, but only the will which can ‘aim’ at
behaviour characterized as moral. It is only the meaning of an act of will—i.e. a
norm—which can express that a person ought to behave in a certain way, for
behaviour is ‘moral’ only to the extent that it agrees with a norm (which is the
meaning of an act of will). It is possible to think of such a norm, but it is possible to
think of it only as the meaning of an act of will, an act of will of a being recognized as
an authority, such as God or a leader of the community. But it is the—thought—
norm, and not my thinking, which aims at the particular behaviour.
For instance, I see a child fall into a lake. I immediately become conscious of the
moral norm which prescribes that one is to try and save a person in mortal danger
even at the risk of one’s own life. This act of becoming conscious of the norm is an
act of thought. It can—but need not—cause in me an act of will whose meaning is
‘You are to try and save the life of the child’, i.e. an individual norm which
corresponds to the general norm. It is this general norm and this individual norm,
and not my thinking, which aim at the behaviour characterized as morally good. My
 Notes 65—66 313

thinking of the general norm can—but need not—cause me to will the individual
norm, just as my willing the individual norm can—but need not—cause me to
behave in a way which agrees with the general norm. I can—but need not—make
effective my will to try and save the child’s life and dive into the lake, and so perform
a morally good deed. In the last analysis, it is my act of will (whose meaning is the
individual norm corresponding to the general norm) which ‘aims’ at this deed. But to
cause something does not mean to aim at something. Heat causes metallic bodies to
expand, but it does not aim at expansion.

Note 66

Connected with the self-contradictory concept of practical reason—Le. reason which

is both cognitive and legislative (willing)—is the concept of a normative,i.e. norm—
positing, science. This is what logic and especially ethics are considered to be. A
typical example is Benno Erdmann (1923). In the chapter entitled ‘The objects of
thought in their relation to reality’ (pp. 130 ff.), Erdmann says: ‘A last group of ideal
objects [which he distinguishes from real objects] is made up of the norms of all
kinds in which we do think not what is but what ought to be’ (p. 141). Thus he
considers norms to be the meaning of acts of thought. And so he says of logic: ‘Logic
teaches . . . how we ought to think, in the same way as ethics, legislation and
pedagogy determine how we ought to act in their respective domains’ (p.25).
Erdmann calls jurisprudence a ‘practical science’ (p. 9) and includes it within the
‘normative sciences’, of which he says:
It is the task of all these sciences to keep social culture in step with the progress of scientific
thought. But what makes all these branches of knowledge sciences is purely the theoretical
knowledge which forms their basis. Thus, in them scientific thought is admittedly used for
practical purposes, but not in such a way that it conforms to these purposes, but rather that
these purposes are shaped according to this knowledge.

Since they ‘teach’ (i.e. they are sciences or cognitive functions), logic and ethics are
equated with ‘legislation’ and prescribe how we ought to think and act. It is the task
of these sciences to shape social culture, to keep it in step with some ideal. In these
‘sciences’, thought is ‘used’ for practical purposes, and purposes are ‘shaped’. In other
words: these sciences posit norms. This is the typical confusion of ethics and
morality, and of law and legal science.
Julius Kraft defines ethics as ‘a system of true assertions determining the necessary
and sufficient properties of the not arbitrarily fixed tasks of man’ (1961: 152). True
assertions—hence, purely cognitive functions—determine the tasks of man, or as
Kraft says, that which is ‘demanded’ of man. Kraft thereby expressly appeals to
Kant’s theory of practical reason. To the ‘cult of modern servitude and the idols of
race and class’ he Opposes ‘the ethics of justice and freedom . . . practical reason and
experience’ (p.162). Here we see quite clearly that the confusion of ethics and
morality is based on the concept of practical reason.
What makes it difficult to understand that Kant has a theory of practical reason is
the fact that he explicitly says that he was influenced by Hume, and Hume decisively
rejects the concept of a practical reason. Cf. Endnote 64. In a very worthy book
(1933), Alf Ross subjected the concept of practical reason to a most convincing
cr1r1c1sm.
The French philosopher André Lalande goes even further than Kant and the
philosophers who draw a distinction between a theoretical and a practical reason,
between a descriptive-explicative reason and a prescriptive-normative reason: ‘[ . . .]
314 NOtes 66—67

reason, in its source, is not constative but normative. Those who consider morality to
be reasonable conduct are quite aware of this fact, and the cult of the goddess Reason,
in spite of its naive and even ridiculous character, was in a way a public declaration of
this fact’ (1963: 229). His conception of the normative character of reason is
influenced in a fundamental way by the French language, which uses the word raison
in a normative sense in the expression 11 a raison (He is right). On p. 86, Lalande asks
whether reason can justify behaviour:
13 there an active polarity of reason sufficient f0r justification? But what is justifying an act or
behaviour? It consists in showing that the act or behaviour are legitimate, and consequently in
appealing in other pe0ple (spectators, judges, friends) to the exiStence of principles which are
the same as ours. Once again, it is to identity that we refer in order to prove that one is right
[qu’on a raison].
To ‘justify’ behaviour is to ascertain that it agrees with certain norms presupposed to
be valid. This ascertainment is indeed an act of reason. But norms—or as Lalande
says, ‘principles’—do not issue from reason, they are not immanent in reason, they
are not the meaning of acts of thought: they are the meaning of acts of will directed to
the behaviour of others, acts of will of God, or of a person inspired by God (such as
Moses, Jesus, or Muhammad), or also of a legislator or of a community. No form of
argument can ever overcome the fact that descriptive cognition (which expresses
itself in statements which are true or false) and prescriptive volition directed to the
behaviour of others (which expresses itself in norms which are neither true nor false)
can be performed only by two mental powers which are psychologically completely
different. To call them both by the same word—‘reason’, ‘raison’—is misleading, to
say the least.

Note 67

It is clear from the following considerations that Kant does not maintain the principle
of the autonomy of morality. A genuine autonomy of morality exists only if the
person subject to the moral law—i.e. the empirical man or the will of the empirical
man—is also the moral legislator. But that is not possible according to Kant’s own
account. Kant defines ‘autonomy’ in the following way:
Although in the concept of duty we think of subjection to law, we do nevertheless ascribe a
certain sublimity and dignity to the person who fulfills all his duties. For though there is no
sublimity in him in so far as he is subject to the moral law, yet he is sublime in so far as he is
legislative with reference to the law and subject to it only for this reason. (iv. 439 f., Foundations
of the Metaphysics ofMorals)
Thus the person subject to the moral law, i.e. the empirical man, must also be
‘legislative’; the legislative will must be the will of the empirical man. But according
to Kant’s doctrine, the moral legislator is the will which he calls practical reason. And
this will is not at all identical with the empirical will of man. Kant says that ‘moral
philosophy’—which he sometimes identifies with practical reason in so far as the
latter is also knowledge—
gives him [i.e. man] as a rational being, a priori laws. No doubt these laws require a power of
judgment sharpened by experience . . . in order . . . to procure for them an access to man’s will
and an impetus to their practice. For man is affected by so many inclinations that, though he is
capable of the idea of a practical pure reason, he is not so easily able to make it concretely
effective in the conduct of his life. (iv. 389)

Thus the moral laws do not originate in the empirical will of man who is subject to
 Notes 67—68 315

them. An ‘access’ to this will must be procured for them. The will of which the
Ought of the moral norms is the meaning is not the will to which these norms are
directed. It is ‘in pure, but practical, reason’, which ‘commands what ought to be
done’, that the moral norms ‘have their origin’ (iv. 408). ‘Reason . . . as a practical
faculty’—which, as Kant is always stressing, is ‘will’—must influence the ‘will’, the
empirical will of man (iv. 396). There exists an unmistakable duality between the
complete legislative will of practical reason and the incomplete empirical will of man.
For the principle of autonomy to be maintained, practical reason as legislative will
must have its seat in empirical man. But that is exactly what is impossible, since this
practical reason must be free, i.e. it must causally determine human empirical will
without itself being causally determined. But there can be no such freedom in the
empirical world. It can be thought—if at all—only in the intelligible world; it can
belong to man only as an intelligible being, to man in himself, and not to empirical
man, only to an intelligible and not an empirical will. Kant says of practical reason:
Now we cannot conceive of a reason which consciously responds to a bidding from the outside
with reSpect to its judgments, for then the subject would attribute the determination of its
power of judgment not to reason but to an impulse. Reason must regard itself as the author of
its principles, independently of foreign influences; consequently, as practical reason or as the
will of a rational being, it must regard itself as free. That is to say, the will of a rational being can
be a will of its own only under the idea of freedom, and therefore in a practical point of view
such a will must be ascribed to all rational beings. (iv. 448)
But in the Critique of Practical Reason (v. 95), Kant says that since the law of
causality
inevitably concerns all causality of things so far as their existence is determinable in time [i.e. all
things of the empirical world], . . . if we wish still to save [freedom], no other course remains
than to ascribe the existence of a thing so far as it is determinable in time, and accordingly its
causality under the law of natural necessity, merely to appearance, and to attribute freedom to
the same being as a thing-in-itself.
It is only man in himself, as an intelligible being, and thus only the intelligible and not
the empirical will, only the intelligible and not the empirical reason of man, which can
be conceived of as free. ‘So far, then, as regards this empirical character there is no
freedom’ (Critique of Pure Reason, B 578). If practical reason as moral legislator must
be free, it cannot be the practical reason of empirical man subject to the moral law.
Empirical man with his empirical reason is no more identical with intelligible man
with his intelligible reason than the thing of empirical reality is identical with the
thing in itself. The empirical world and the intelligible world are two completely
separate worlds. Of the latter we know nothing, we can know nothing, and we need
to know nothing (B 59, 332). Practical reason, which is the moral legislator, belongs
to this intelligible world and not to the world in which the subject of the moral law
lives. Hence the autonomy of morality is abolished. Cf. my Pure Theory of Law
(1967) 99 [Translator’s Note: the reference is to a footnote on Kant which was not
included in the English translation; cf. Reine Rechtslehre (1960) 103], my ‘Das
Problem der Gerechtigkeit’ (1960) 369 and 420, and my article ‘The Foundation of
the Theory of Natural Law’ (1973).

Note 68

The recognition of a norm must be distinguished from the cognition of a norm. The
cognition of a norm is an act of thought whose meaning is a descriptive statement.
The recognition of a norm IS an act of will whose meaning is a norm. A characteristic
316 Notes 68—69

example of the confusion of the two concepts is to be found in Sigwart’s account of

the task of logic (1895: i. 4ff.). He says that the goal of our thought is not merely
‘knowledge of what is’:
The purposes towards which thought is directed are far from being exhausted by this one
interest—the desire for knowledge. It is found to be just as active in a direction which cannot be
included in the idea of knowledge of that which is. We find ourselves as a matter of fact under
the dominion of certain laws according to which we estimate the worth of human deeds, and to
which we are willing to submit our wills and actions.
These laws are clearly the norms of morality and of law, or as Sigwart says, ‘the rules
of propriety, of morality [Sitte], of justice and of duty’. ‘It matters not for our
present investigations whence these laws have their origin, nor by what motive we
are led to recognise them as valid for us. Enough that we are constantly endeavouring
to observe the rules of pr0priety, of morality, of justice and of duty, and are
incessantly called upon to decide what we ought to do and how we ought to act.’
Thus the ‘thinking’ which is directed to norms, the cognition which gives us the
answer to the question as to how we ought to act, consists in our recognizing norms
as valid for us.
No material result informs us whether or not our Thought has attained its end, by proving that
our calculations accorded with the nature of things. Even the result at which we aim consists
solely in thoughts, and the actual results also are the thoughts which accuse or absolve us, the
recognition or non—recognition by others and by ourselves of the conformity of the particular
action with the general rule.
If the purpose of thinking directed to norms consists in the ‘thoughts’ which accuse
or absolve, in the recognition or non-recognition of the conformity of the particular
action with norms, then thinking directed to these norms—the cognition of these
norms—consists in our recognizing them as valid for us. Since Sigwart fails to
distinguish between the cognition and the recognition of norms, he assumes there is a
‘Thought which guides our action’. This thought which guides our action and which
is both cognition and recognition (and therefore will) is clearly the self-contradictory
concept of practical reason we find in Kant, whose philosophy had a decisive
influence on Sigwart.

Note 69

Hume says: ‘Since reason alone can never produce any action, or give rise to volition,
I infer, that the same faculty is as incapable of preventing volition, or of diSputing the
preference with any passion or emotion . . . . Reason is, and ought only to be, the
slave of the passions, and can never pretend to any other office than to serve and obey
them’ (Treatise of Human Nature, pp. 414—15). Kant’s conception of reason, even of
theoretical reason, stands in Opposition to this view of Hume’s. For according to
Kant, reason does not have a mere receptive-declarative function, but an active-
constitutive function. It creates order in the chaos of our sensations. Considered
epistemologically, the order of nature is the product of theoretical reason. Hence it
was natural for Kant to interpret the moral order as the product of the same reason
(understood as practical reason). But there is a fundamental difference between the
two orders which reason creates according to Kant. The order ‘created’ by theoretical
reason is the order of a material presented to reason. This material is made up of
existing—actually existing—sensations. It is thus an order of Is. The order ‘created’
by practical reason is not the order of an existing material presented to reason. The
drives that practical reason is concerned with are not existing—actually existing—
 Notes 69—71 317

drives, but those which are required—commanded or prohibited—by practical

reason. In the norms posited by practical reason, drives do not appear as existing—as
do the sensations in the statements of theoretical reason—but as obligatory (either
positively or negatively). The sensations are ‘given’ to theoretical reason, for they are
existing objects which theoretical reason ‘orders’ by describing them as causes and
effects according to the principle of causality. But the drives are not given at all as
material to practical reason. Practical reason does not describe existing drives as
theoretical reason describes existing sensations; rather it demands, it commands
certain drives and the suppression of other drives. Actually existing drives enter the
picture only after practical reason has posited the moral norms and created the moral
order. It is only then that drives can be judged to be good or bad. Kant’s theoretical
reason is a faculty of cognition, and cognition can create—if at all—only an order of
Being, without being able to change anything of the Being given to it. An order of
Ought can be created only by willing. Kant certainly does call his practical reason
‘Will’ (cf. iv. 412, 441, Foundations of tbe Metapbysics of Morals), but if it is will, it
cannot be the same as the cognition of theoretical reason; it simply cannot be
‘reason’. Cf. my ‘Das Problem der Gerechtigkeit’ (1960) 420 ff.
Max Scheler rightly insists that Kant’s theoretical and practical reason are ‘the same
mental faculty’, and states that the difference between the two consists ‘in a difference
in the activities of the faculty itself’ (1899: 45).

Note 70

When we use the word ‘good’ in order to commend morally, we are always directly or
indirectly commending people. Even when we use the expression ‘good act’ and others like it,
the reference is indirectly to human characters. This, as has often been pointed out, constitutes a
difference between the words ‘good’ and ‘right’. In speaking, therefore, of moral goodness, I
shall speak only of the expression ‘good man’ and similar expressions. (Hare, 1964: 144)
That a man has a ‘good’ character simply means that his behaviour always—or at
least usually—agrees with the moral norms presupposed to be valid. It is only
indirectly that his character or that he himself can be said to be morally good. It is
true that in ordinary speech, the word ‘good’ is used of the pe0ple whose behaviour
is good, while this is not the case with the word ‘right’. A person is not ‘right’ or
‘wrong’; it is only his behaviour which has the properties which these words denote.

Note 71

Thus, G. H. von Wright is wrong when he calls the omission of a given act the
‘negation of a given act’: ‘Thus by the negation(-act) of a given act we understand
that act which is performed by an agent, if and only if he does not perform the given
act. For example: the negation of the act of repaying a loan is the act of not repaying
it’ (1951: 2; 1957: 59). But not repaying a loan is not an ‘act’ but the omission of an
act, i.e. of the act of repaying the loan. A person can only ‘perform’ an act and not an
omission. But since von Wright also uses the word ‘act’ for what he calls the
‘negation of a given act’, he says later that the ‘negation’ of an act, i.e. the omission of
an act, can be ‘performed’. But we cannot say of someone who omits to perform a
given act, e.g. the repayment of a loan, that he has ‘performed’ an act. When he fails
to repay the loan, he does not perform anything.
When discussing conflicts between two norms, one of which commands a
particular behaviour and the other the omission of this behaviour—and this means:
318 NOtes 71—74
one of which commands a particular behaviour and the other forbids this behaviour,
such as ‘Lie!’ and ‘Do not lie!’ (‘Refrain from lying’), or ‘Do not lie’ (‘Refrain from
lying’) and ‘Refrain from refraining from lying’ (‘Refrain from not lying’)—von
Wright says: ‘Let A be the name of an act. That all (both) the deontic units in the
deontic realm of this act are false, means that the act itself and its negation are both
forbidden . . . Since the act or its negation is performed by any agent whenever he
acts, the falsehood of all the deontic units means that we are forbidden to act in any
way whatsoever’ (1951: 8; 1957: 66). It is obvious that when both lying and
refraining from lying are forbidden, not every behaviour is forbidden. It is not
forbidden to go for a walk or to read a book, etc.; it is simply forbidden to make
statements which can be true or false. Only lies, i.e. false statements, and omissions of
lies, i.e. omissions of these statements, are forbidden. But the omission of any other
behaviour, i.e. of any behaviour which is not a statement, is not forbidden. When
someone goes for a walk or reads a book, it cannot be said that he violates the norm
to lie or the norm to refrain from lying.

Note 72

Speaking of ‘normative sentences, Hall says: T‘hey can perhaps be described as

sentences which state that some fact ought to be (or to have been) Usually, but not
necessarily, this fact 18 a fact of human behaviour. I would wish to call‘‘there ought to
be no earthquakes or other natural disasters” a normative sentence’ (1952: 155). This
is incorrect if the term ‘normative sentence’ means a command or norm commanding
or prohibiting something. A person can wish that there be no earthquakes or other
natural disasters. But a person cannot meaningfully command that earthquakes or
other natural disasters are not to occur. The religious belief that God issues
commands to Nature, which Nature then obeys, contains an animistic view of
Nature.

Note 73

Bernard Mayo draws a distinction between ‘commanding’ and ‘prescribing’, and

between ‘forbidding’ and ‘prohibiting’: ‘. . . people in authority command and
forbid, rules prescribe and prohibit’ (1957: 168). In German there is no way of
rendering the difference—if any—between the English verbs ‘forbid’ and
‘prohibit’. They are both translated by ‘verlaieten’. ‘PeOple in authority’ are persons
who are competent to posit binding norms. The claim that ‘pe0ple in authority
command and forbid’ means that persons command and forbid by means of the
norms which they posit. Thus we can perfectly well say of these norms that they
command and forbid. The term ‘rules’ can only mean ‘general norms’, as opposed to
the individual norms by which people ‘command’ and ‘forbid’. But even the ‘rules’—
the general norms which Mayo admits ‘prescribe’ and prohibit’—have to be posited
by persons, and we can say that these persons ‘prescribe’ and ‘prohibit’ by means of
the ‘rules’ they posit.

Note 74

Mayo asserts: ‘A thing, if it is described at all, is described as a thing of a certain type.

Act1ons too can be described, and they are described as actions of a certain type; for
 Notes 74—75 319
example, this is homicide. But what is prescribed is not the action. It is the type . . .
Only classes of actions can be prescribed’ (1957: 163 f.). And on p. 165: ‘. . . only
types of actions can be prescribed or prohibited.’ This is true only if we limit, as
Mayo does, the functions of ‘prescribing’ and ‘prohibiting’ to ‘rules’ (i.e. general
norms). Earlier, he said ‘. . . what you are forbidden by law to do is not just this.’ ‘By
law’ means ‘by a general norm’, and admittedly a general norm prescribes or
prohibits only a class of behaviour. But if ‘prescribing’ and ‘commanding’ are
synonymous, and if we can therefore say ‘The father commands his son Paul to open
a certain Window’ just as well as ‘The father prescribes to his son Paul to open a
certain window’, then what is prescribed in this individual command or prescription
is not a class of behaviour, but an individually specified, concrete, once-only instance
of behaviour. And the same is true when the father forbids his son Paul to shut a
window which is Open.

Note 75

Some people draw a theoretical distinction between ‘commanding’ and ‘forbidding’.

Thus G. H. von Wright distinguishes between the following ‘deontic modes’: ‘the
obligatory (that which we ought to do), the permitted (that which we are allowed to
do), and the forbidden (that which we must not do)’ (1951: 1; 1957: 58). Since the
object of discussion is a ‘deontic logic’—and so a logic of norms—the ‘deontic
modes’ must refer to the functions of a norm. But the ‘modes’ mentioned by von
Wright refer to the object of a norm: the commanded, the forbidden, and the
permitted. And they presuppose three normative functions: commanding, forbid-
ding, and permitting.
H. N. Castaneda distinguishes between the following ‘ordinary deontic terms’:
‘permissible’, ‘obligatory’, ‘forbidden’ (1960: 41). Thus he presupposes that
commanding and forbidding are two different normative functions.
Oscar Becker (1952: 42) mentions the following ‘normative modes’:
[action] p is commanded (ordered, required, decreed)
m-PWNr—k

p is permitted
p is forbidden (not permitted)
p is not-commanded (the omission of p is permitted)
p is free (neither commanded nor forbidden; p and the omission of p
are permitted).
Since Becker presents the normative modes separately for actions and omissions, he
distinguishes between the case where an action is commanded and the case where an
action is forbidden. That is the state of affairs from the viewpoint of the object of a
norm, not from that of the function of norms.
The function of a norm is also confused with its object when one fails to
distinguish between ‘commanding’—as a function of a norm—and ‘being—
commanded’—as the pr0perty of a behaviour which is the object of a norm. ‘A
behaviour is commanded’ is the meaning of a Statement, the statement about a norm
which commands a certain behaviour. This statement is a description and not a
prescription. This confusion occurs when von Wright speaks of acts as ‘obligatory’
(1951: 8—9; 1957: 66), but since his goal is a ‘deontic logic’ (i.e. a logic of norms),
what he has in mind is the function of commanding.
320 Notes 76—77

Note 76

Legal rules are not normative in the sense that they are commands or injunctions. Like moral
rules they constitute a standard of conduct to be accepted and observed. It is interesting to note
the oblique way in which penal statutes are normally framed. They do not say ‘If a man steals,
he shall (or ought to be) punished’. They merely enact that if he does a certain act or acts ‘he
shall be guilty of an offence’ or ‘he shall be liable to a term of imprisonment not exceeding three
months’. The language used would more convincingly suggest that a legal norm in the form set
out above simply specifies the condition under which certain consequences are permitted to
happen. (Guest, 1961: 184)
If the meaning of a legal norm is that if someone behaves in a certain way, ‘he shall be
liable to a term of imprisonment’, then according to the usual meaning of ‘shall’ in
English the meaning of this legal norm is a ‘command’ to punish this person. And if
Guest understands the words ‘shall be liable to a term of imprisonment’ as a
permission to punish the man, even then the person’s behaviour is legally forbidden
for the very reason that it is permitted to punish him. Guest overlooks the indirect
function of commanding a certain behaviour which obtains when an official is
empowered to react with a sanction to the Opposite behaviour. And in any case, it is a
mistake to consider that morality and law are similar in this regard.
These remarks by Guest follow a criticism of my theory. On p. 184, he states:
‘Kelsen has consistently maintained that legal rules are in fact commands addressed
to the courts enjoining them to act in a certain way if certain conditions are satisfied . . .
In fact, however, it is highly artificial to regard legal rules merely as commands,
and such a View scarcely corresponds with a realistic examination of any developed
legal system. ’But already in my Pure Theory of Law (1967) I insisted most
forcefully that the function of norms is not only to command, but also to empower,
to permit, and to derogate. Cf. pp. 5, 15 f., 56 f., 71.

Note 77

Garcia Maynez assumes that legal norms have only the following functions:
forbidding, prescribing [i.e. commanding], permitting, and making legally free: ‘the
most important forms which juristically [he means ‘legally’] regulated hehaoiour can
assume [are] the forbidden, the prescribed, the permitted and the legally free (the
potestative)’ (1959: 193). On p. 196 he characterizes legally free behaviour as a ‘sub-
class’ of the legally permitted, the other sub-class of which he considers to be the
‘legally obligatory’, i.e. the commanded. In his list, Garcia Maynez thereby ignores the
derogating function of legal norms. And he considers ‘forbidding’ and ‘commanding’
to be two different normative functions, even though they constitute the same
normative function, namely ‘commanding’, with respect to two different forms of
behaviour, ‘doing’ something and ‘omitting to do’ it.
Nor does he distinguish between ‘permitting’ and ‘empowering’. He says on p. 193:
‘A behaviour is permitted in the legal sense, if it includes the exercise of rights’, and
on p. 194: ‘Law regulates behaviour by granting rights and imposing duties.’ Since
according to Garcia Maynez, in the exercise of one’s rights, one makes use of a
‘permission’ (which represents one of the forms of legal regulation)—he says on
p. 193 that ‘the behaviour of a person exercising a right is necessarily permitted’—the
term ‘permission’ means the granting of rights. But this‘ granting’ of rights 15 the
conferring of a legal power, an ‘empowering, and this 15 fundamentally different
from what I have characterized more precisely as ‘permitting’ in the negative sense
and in the positive sense. The exercise of rights, in so far as it occurs in their
 Notes 77—78 321

enforcement through legal proceedings, is ‘empowered’ and not ‘permitted’. Making

use of the permission to kill in self-defence is something fundamentally different from
the behaviour which consists in initiating legal proceedings (by laying a complaint
before a court) against someone who violated one’s property rights. This behaviour is
the exercise of a legal power granted to the plaintiff. This exercise of a legal power is
also fundamentally different from the ‘fulfilment of legal duties’ which Garcia
Maynez also characterizes as ‘permitted’ (i.e. as making use of a permission). A
person who fulfils a legal duty—e.g. who repays a loan—does not exercise any legal
ower.
P On p. 195, Garcia Maynez claims it is self-evident that ‘if a behaviour is legally
regulated, it can only be forbidden or permitted. We can call this principle the
ontologico—juristic axiom of the excluded middle, since there is no third possibility—
tertium non datur—between the legally forbidden and the legally permitted.’ But as
we have already seen, he himself distinguishes, besides the ‘forbidden’ and the
‘permitted’, the ‘prescribed’ (i.e. commanded) and the ‘legally free’ behaviour
(p. 193). If we understand ‘being permitted’ (in the negative or positive sense) in the
way indicated in the text (ch. 25. V), a behaviour can be neither forbidden nor
permitted, but commanded; and if a behaviour is commanded, then it is not
‘permitted’ since ‘commanding’ and ‘permitting’ are different normative
functions. Hence Garcia Maynez is mistaken in claiming: ‘If a behaviour is not
legally forbidden, it is legally permitted’ and ‘If a behaviour is not legally permitted,
it is legally forbidden’ (p. 195). If a behaviour is not forbidden, then it can not only be
permitted, but also commanded, and if a behaviour is not permitted, it need not be
forbidden but can be commanded. In this last case, Garcia Maynez follows common
linguistic usage for which ‘not permitted’ is synonymous with ‘forbidden’. On
p. 196, Garcia Maynez says that ‘the juristically obligatory [i.e. commanded] action is
necessarily always permitted. If it were not juristically permitted, it would be
forbidden, but then it would be simultaneously forbidden and prescribed
[commanded], and this involves a contradiction.’ In this sentence ‘If it were not
juristically permitted, it would be forbidden’, we see clearly the influence of common
linguistic usage which identifies ‘not-permitted’, i.e. legally commanded, with
‘forbidden’.
As we have seen, Garcia Maynez believes that being permitted includes the
exercise of rights. On p. 197, he says: ‘If everything which is juristically prescribed is
juristically permitted, a person under a duty to behave in a certain way necessarily
has the right to do what is commanded him (the duty-bearer’s right).’ Here we see
that the belief that commanded behaviour is permitted behaviour leads to a confusion
of the concepts of ‘duty’ and ‘right’.

Note 78

As was indicated previously (Endnote 75), G. H. von Wright (1951, 1957)

distinguishes between three ‘deontic modes’, obligatory, permitted, and forbidden,
and tries to define being obligatory and being forbidden in terms of being permitted.
He says that being forbidden means being not-permitted: ‘If an act is not permitted,
it is called forbidden. For instance: Theft is not permitted, hence it is forbidden. We
are not allowed to steal, hence we must not steal’ (1951: 3; 1957: 60). But it is not true
that if an act is not permitted, it is called forbidden; rather it is the other way around:
if an act is forbidden, it is called ‘not permitted’. But here ‘permitted’ is being used in
the sense of ‘not forbidden’, and the pr0position ‘What is forbidden is not permitted’
is then a pure tautology. The important point is that the norm concerning theft
322 Notes 78—79

commands not-stealing—i.e. refraining from theft—and so in this case there exists

only one normative function, that of commanding, and there can be no question of
any ‘permitting’ in the only correct sense of the word.
Von Wright then says that for an act to be commanded means that its omission is
not permitted: ‘We ought to do that which we are not allowed not to do’ (1951: 3;
1957: 60). Again, it is not true that when the omission of an act is not permitted, the
act is said to be commanded, but the other way around: when an act is commanded,
its omission is said to be not permitted, where ‘permitted’ is used in the sense of ‘not
forbidden’, and ‘not permitted’ in the sense of ‘not not-forbidden’ (i.e. ‘forbidden’).
The pr0position ‘We ought to do what we are not allowed not to do’ means ‘If an act
is commanded, its omission is forbidden.’ The situation can be described without the
help of the concept of permitting. The only normative function which obtains here is
that of commanding an act or its omission. Von Wright says in this connection: ‘If
the negation of an act is forbidden, the act itself is called obligatory. For instance: it is
forbidden to disobey the law, hence it is obligatory to obey the law’ (1951: 3; 1957:
61). Since the normative function being considered is that of commanding, and since
to forbid is to command an omission, things are being stood on their head when the
being-commanded of an act is presented as the being-forbidden of its omission. ‘It is
commanded to obey the law’: if we want to make use of the concept of forbidding,
we can express the same idea by saying ‘It is forbidden not to obey the law.’ But
things are back to front if we say ‘It is forbidden not to obey the law, and hence it is
commanded to obey the law.’

Note 79

Sometimes the law makes the uttering of certain words or sentences by particular
individuals the condition for certain legal consequences. For example, it prescribes
that a document is a valid will only if inter alia it is explicitly headed ‘Last Will’ or
‘Testament’; or that a marriage is valid only if inter alia a priest of a legally
recognized religious community pronounces the words ‘I hereby declare you man
and wife’ to two persons of different sex standing before him. Linguistically the
words ‘last will’ or ‘testament’ are a description of the document, and the words of
the priest are a description of the legal consequences these words have: they are
therefore statements. But according to their legal function they are not descriptions
or statements, but rather conditions for legal consequences.
J. L. Austin remarks:
Even if some language is now purely descriptive, language was not in origin so, and much of it is
still not so. Utterance of obvious ritual phrases, in the appropriate circumstances, is not
describing the action we are doing, but doing it (‘I do’); in other cases it functions, like tone and
expression, or again like punctuation and mood, as an intimation that we are employing
language in some special way (‘I warn’, ‘I ask’, ‘I define’). Such phrases cannot, stricly, be lies,
though they can ‘imply’ lies, as ‘I promise’ implies that I fully intend, which may be untrue.
(1955: 146—7)
As far as the words or sentences whose utterance the law makes the condition for
certain legal consequences are concerned, Austin’s comment that they are not
descriptive is not quite right. They are also descriptive, but not only descriptive;
description is not their essential, i.e. legal, function.
As statements they can be true or false. The word ‘Will’ as an abbreviation for the
sentence ‘This document is a will’ can be false, if e.g. the objects which are disposed
of in the document are not the pr0perty of the person who heads the document with
the word ‘Will’, for then the document is not a will, i.e. it does not have the
 Notes 79—80 323

characteristic legal consequences of a will. The sentence pronounced by the priest ‘I

hereby declare you man and Wife’ is false if the two persons to whom the sentence is
spoken do not belong to different sexes, but are both male or both female and one of
them is disguised as a member of the other sex. For then the priest’s words do not
have the legal consequence they describe: no marriage is contracted.

Note 80

Esser (1956: 132 n. 149) refers to an article by Roscoe Pound (1933) published in the
Tulane Law Review (and not in the Harvard Law Review as Esser states in n. 41 on
p. 15), in which Pound speaks of ‘principles’: ‘These are authoritative starting points
for legal reasoning, employed continually and legitimately where cases are not
covered or are not fully or obviously covered by rules in the narrower sense’ (1933:
483). Pound admits that ‘very often these authoritative starting points compete.
There is often a choice of such starting points from which to proceed and no precepts
are at hand to determine which is to be chosen. Here usually choice is made by
referring the result of the respective starting points to the received ideals and
following the lines leading to decisions in accord therewith.’ Speaking of these
‘ideals’, he says: ‘ . . . in any complete view of the materials of [judicial] decision one
must not fail to take account of the received technique of finding grounds of decision
in the body of precepts nor of the body of received ideals, quite as authoritative as the
precepts themselves . . . ’ (p. 477). These ‘ideals’ contain ‘the ethical elements’. The
law includes not only ‘rules’, but also ‘principles’ and ‘ideals’, and Pound
characterizes the laW in the following way: ‘[We] take the law to be the body of
authoritative materials prescribed or received as the basis of judicial decision’
(p. 476). Consequently, ‘principles’ and ‘received ideals’ are part of the law alongside
‘rules’—or so we must assume, since Pound does not say so explicitly in this article.
But in his five-volume jurisprudence (1959), he says the following about ‘principles’:
‘They come into the law with the advent of legal writing and juristic speculation’
(ii. 126), and about ‘ideals’: ‘We deceive ourselves grossly when we devise theories of
law which exclude such things from “the law”. When such ideal pictures have
acquired a certain fixity in the judicial and professional tradition they are part of “the
law” quite as much as are legal precepts’ (ii. 122).
Pound says that judicial decisions are determined not only by ‘authoritative’
factors, but also by ‘unauthoritative factors’. He insists that ‘whether we are talking
of actual but not legitimate influences or of legitimate but not authoritative elements,
we are not talking of law’ (1933: 476). How then does one recognize the
‘authoritative character’ of a principle or ideal? In this article (1933)—which is not
very clearly written—Pound gives no answer to this question which is fundamental
for his theory. If the ‘principles’ and ‘ideals’ are to be considered as part of the law
because they influence judicial decisions, then we fail to see why this should not be
true of all factors which influence judicial decisions, especially since the only way of
distinguishing authoritative from unauthoritative factors would seem to be the fact
that they are the factors laid down lay the law itself, since no other authority but that
of the law is relevant for judicial decisions. But positive law prescribes that the courts
are to apply in their decisions only the valid legal norms created by legislation and
custom, i.e. the ‘rules’.
324 Notes 81—83

Note 81

Speaking of the same provision in art. 38 of the Statute of the International Court of
Justice, Georges Ripert says: ‘These principles are principles of municipal law’ (1933:
580), and on p. 587 he speaks of a ‘reception of the principes ge’nernnx dn droit’.
Alfred Verdross says: ‘Thus, article 38c has not created anything new, but simply
codified the existing state of the law’ (1964: 147). The principles in question could be
‘either principles which can be found universally in the legal orders of civilized
pe0ples, or principles which underlie these legal orders’. But how do principles of
municipal law become international law? In an earlier article (1935) he says of the
same provision in the Statute of the International Court of Justice: ‘It could be said
that the application of these principles has been authorized by international custom.’
But in the later book (1964), he says on p. 147 that the principles ‘have achieved
recognition neither by treaty nor by custom’. How then have these legal principles
become norms of international law which the International Court of Justice is to
apply? If it is not by the custom of States, then it can only be because an international
treaty empowers an international court to apply these principles, or to be more exact,
to apply a norm which the court considers to be a legal principle recognized by
civilized States. Because of article 38 of the Statute of the International Court of
Justice, these principles have achieved recognition in virtue of a treaty. On p. 148,
Verdross refers to the fact that article 38 speaks of legal principles (principes génémnx
dn droit) and not of legal norms. But if the International Court of Justice is to apply
these general principles in concrete cases, they must have the character of norms of
international law, norms different from those created by international agreements
(§ 4) and by the custOm of States (§ [9), both of which predate the Statute of the
International Court of Justice.

Note 82

It is a constant claim of traditional jurisprudence that this principle is a logical

principle. Thus e.g. Julius Moor: ‘The principle “Lex posterior derogat priori” is not
a prescription of positive law which can be changed or disregarded by the legislator;
it is a logical constraint on law-creation’ (1927: 165).
Fr. Eisele says: The will, ‘even the declared will . . . is legally free with respect to
itself and can consequently be changed’ (1886: 283). ‘That the legislator’s will is free
with respect to itself is admittedly not asserted in the pr0position “Lex posterior
derogat priori”—which is not a pr0position of law, but a legal truth—but it underlies
it as its presupposition.’ But Adolf Merkl has already declared: ‘The proposition
“Lex posterior derogat priori” is valid in virtue of positive enactment and not as a
logical axiom of law as it is commonly believed’ (1927: 211).

Note 83

It certainly seems to be possible for the law-applying organ to resolve a conflict of

norms by interpretation. If two general norms conflict and if a court applies one of the
two norms, 1..e decides a concrete case by positing an individual norm which
corresponds to one of the conflicting norms, and if this decision becomes res
judicntn, then this case can no longer be decided by an individual norm
corresponding to the other of the two conflicting norms. The application of this
 Note 83 325

general norm to the case decided according to the other norm is excluded. But at the
level of the general norms the conflict remains.
Rupert Schreiber (1962: 59) claims that contradictions can occur in legal language.
On p. 87 he says: ‘If a contradiction occurred between legal norms, then all the
norms which are mutually contradictory would have to be legally invalid. For
contradictory norms are legally invalid.’ But that is correct only if a positive legal
norm repeals the validity of the conflicting norms. But Schreiber admits that such
conflicts—or ‘contradictions’, as he says—can be resolved only by some positive
settlement. For he says on p.59: ‘But since contradictions are present in legal
language, they have to be eliminated by appropriate provisions’, and on p. 87: ‘If no
settlement were effected for this case of a conflict, then considerable areas of the legal
order would be rendered inoperative by contradictions.’ But these ‘provisions’ or
‘settlements’ are not the logical principle of contradiction, but norms issued by legal
authorities. Schreiber mentions as ‘provisions’ or ‘settlements’ the principles ‘Lex
specialis derogat legi generali’ and ‘Lex posterior derogat legi priori.’ According to
Schreiber, these principles were developed ‘by legal science’ (p.60). That may be
true, but as long as they are not posited, explicitly or tacitly, by legal authority, they
are not applicable.
But Schreiber goes so far as to say that ‘the laws of logic are part of the law’ (pp. 60,
94). He appeals (p. 94) to a decision of the Supreme Court of the British .Zone of
Occupation of 19 October 1948, which .says of a judgment containing mutually
contradictory findings ‘that such an offence against the laws of thought amounts to a
violation of substantive law. And this is so not only when there are irreconcilable
contradictions within the final finding of fact, but also when there are logical
contradictions between the final finding and individual facts disclosed by the
evidence . . . An offence against the laws of thought is therefore to be considered a
violation of substantive law.’ The only relevant ‘contradictions’ are those between
findings, since there can be no logical contradiction between a finding and the fact it
is about. If a finding of fact does not agree with the fact in question, this is not a
logical contradiction.
In the second decision of the Federal Supreme Court cited by Schreiber (BGH Str
6, 72), it is said that the judge is ‘subject to the laws of thought and of experience and
has to comply with them in his fact-finding. These laws are norms of unwritten law.
Failure to observe them is a violation of the law in the sense of art. 337 of the Code of
Civil Procedure and constitutes grounds for appeal on a point of law.’ Legal
authorities can indeed prescribe that when an error of logic, a logical contradiction,
or an invalid inference occurs in the sentences of a statute or in the decision of a law-
applying organ (in particular a court), the statute is to be treated like an
unconstitutional statute (i.e. courts are allowed to refuse to apply it or it can be
repealed by a constitutional court), and the judicial decision is to be treated like a
decision contrary to statute (i.e. it can be appealed and repealed by the decision of a
higher court). But that does not mean that the principle of contradiction and the rule
of inference have become legal norms. For the principles of logic concern the
meaning of acts of thought, while le‘gal norms concern the acts of will of legal organs.
The principle of contradiction asserts that when two statements contradict one
another, only one of them can be true and when one of them is true the other must be
false. But the law simply provides that when two norms conflict—and this is not a
logical contradiction—the statute or the decision can be repealed. The rule of
inference asserts that if the premisses are true and the conclusion is implicit in the
premisses, then the conclusion is true. But the law simply provides that when a
statute or decision contains an invalid inference, the statute or the decision can be
repealed. Neither the legal principle concerning conflicts of norms nor the legal
principle concerning invalid inferences in a statute or judicial decision is a logical
326 NOtes 83—85

principle As far as the rule of inference is concerned, no provision by a legal

authority can determine that the decision of a law--applying organ (i. e. the individual
norm to be issued by this organ) 13 to be reached by way of a logical inference from a
valid general norm. For this 1s a logical impossibility, as will be shown later (cf ch.
58. XIV).

Note 84

Ch. Perelman and L. Olbrechts-Tyteca (1969: 131) reject the claim I made in my
Reine Recbtslebre (1934) that a legal system is closed. Their reason for doing so is
that nOt all cases to be decided are foreseeable.
A perfecrly clear notion is one of which all cases of application are known so that it does not
admit of a new unforeseen use. Only divine knowledge or knowledge limited by conventions
satisfies such a requirement. For these reasons it is not possible to . . . follow Kelsen’s pr0posal
to regard law simply as a closed order. A judge cannot do as a formal logician does and limit the
field of application of his system once and for all. He is in danger of being guilty of a denial of
juStice if he refuses to make a decision ‘on the ground of the silence, obscurity or inadequacy of
the statute’ (Code Napoleon, art. 4). In each case, he muSt be able to decide whether or not the
provision which is invoked can be used under the circumstances, even if these circumstances
were n0t foreseen by the legislature. This compels him to make a decision based on specific
reasons as to the way he will define one or another judicial category.
But what art. 4 of the Napoleonic Code does is precisely to confirm the closed nature
of the legal system. If the statute is ",silent that is, if it does not contain any norm
attaching a legal consequence to the present case, then the judge has to dismiss the
plaintiff s case or acquit the accused, and in doing so he applies the statute. The
situation is no different from that of ‘obscurity, that 1s, where the statute is so
‘obscure’ that the judge is unable to extract from it any materially determinate norm
applicable to the case. To apply the statute he must then dismiss the plaintiff’s case or
acquit the accused. ‘Inadequacy’ is a subjective value-judgment on the part of the
law-applying organ. The fact that the judge has to apply the statute even when he
cpnsiders it inadequate is simply the consequence of the principle that the judge is
not empowered to issue a norm he considers adequate in the place of a valid norm he
considers inadequate. The theOry advanced by the two authors above amounts to a
discretionary power, which the statute to be applied may, but need not, grant to the
judge, and anyway the Code Napoleon does not. The fact that the legislator—in the
judge’s opinion—did not foresee that the statutory provision in question was nOt
applicable to the present case is irrelevant from the point of view of positive law, in so
far as it is nothing more than a conjecture on the judge’ s par_t. If the judge thinks he
has reason to believe that a statutory provision is to be applied to the present case not
according to the wording of the statute, but according to the intention of the
legislator (which must be ascertainable in some other way), then—in virtue of
positive law—he has to apply it. In any case, the valid legal order can always be
applied to the concrete case, in so far as the judge must either find for the plaintiff or
convict the accused or find for the defendant or acquit the accused. Tertium non
datur. This is what makes a legal system closed.

Note 85

Cf. my Pure Theory ofLaw (1967) 125 ff.

A typical example of the mistaken view that right is prior to duty is Wilhelm
 Note 85 327

Wundt’s account of this question (1908). Wundt does understand law as norm and so
essentially as command (cf. iii. 568ff.), and he makes use of the concept of a legal
order (cf. p. 577), which can only be a system of norms. But on p. 578 he defines law
as ‘the sum of powers and duties that a currently superior will in a community
confers on the individual members of this community and on himself’. Even though
this ‘currently superior will in a community’ can express itself only in norms, which
are the meaning of the acts of will in question, the concept of a norm does not appear
in this definition at all. What is also significant is that in this definition the ‘powers’
are mentioned first and the ‘duties’ second. Hence Wundt also declares:
To every right there correspond duties, which result from the exercise of rights as necessary
logical and ethical consequences. They fall into two groups. FirSt the duties which the exercise
of rights imposes on pe0ple other than the right-holders (on b0th individuals and communities,
and especially the legal community itself): they are the logical consequences of rights and they
are a necessary result of a consideration of the means for implementing the rights. Secondly, the
duties imposed on the right-holders and which are the reason why the exercise of rights is also
an interest of the legal community itself: they are the ethical consequences of rights . . .
Consequently from this perspective the duties originating in rights divide into coercive duties
andfree or moral duties. (p. 582)
A duty which is free and not compelling is a self-contradiction, for it is of the essence
of a duty that it is compelling, i.e. binding, that the person under the duty is not free
to fulfil it or not. The linking of a sanction with the failure to fulfil a duty is true of
moral duties as it is of legal duties. No ‘ethical’—or to be exact, moral—duty can
originate in a right imposed by the legal order. A moral duty can be imposed only by
a moral order and not by a legal order. Or to be exact: a moral duty is just the norm
of a moral order and not the norm of a legal order, if there is any sense at all in
distinguishing between morality and law.
But the most important point is that a duty cannot originate in a right, whether we
are talking of a so-called reflection-right or of a right in the specific sense of the
word. For a so-called reflection-right is identical with the duty, and the right in the
specific sense of the word is the legal power to enforce an existing duty. It is obvious
that when A promises B to pay him a certain sum of money, what comes about
morally or legally in the first place is A’s duty to pay the 1,000 to B, and then in the
second place B’s right to the enforcement of the fulfilment of A’s duty. There are
duties which do not correlate with any rights in the specific sense of the word: the
duties created by criminal sanctions. No one has a right not to be murdered when
there is a valid norm that no one is to commit murder. If the norm that a murderer is
to be punished upon a motion by the public prosecutor is interpreted as a right of the
State, it is a right to punishment, and not the right of the victim not to be murdered.
There can be no question of a duty as a logical consequence of the exercise of a
right. And the main reason is that even if the right were the primary element and the
duty the secondary element, the duty would exist as soon as the right existed and not
only when the right was exercised. A’s duty to pay the promised amount exists even if
B never exercises his right, and exists in any case even before he exercises it For the
duty 1s simply nothing but the norm that A 1s to pay the promised amount of 1,000 to
B. That someone has a duty to behave 1n a certain way means that he 1s to behave 1n a
certain way: this 1s the expression of a norm, which 1s the meaning of an act of will,
and the act of will cannot be obtained by way of a logical inference (which 1s a
thought—process).
The significance of Wundt’s account is that it simply reproduces the view of
traditional jurisprudence as he understands it. Heinrich Dernburg writes:
Historically rights existed long before a conscious State order had been formed. They were
based on the personality of the individual and on the reSpect for his person and his goods which
328 Notes 85—87

he was able to obtain and to impose. It is only by abstraction that the concept of the legal
order had to be gradually obtained from the conception of existing rights. Consequently it is
both unhistorical and incorrect to think that rights are nothing but emanations of the law.
(1911: i. 65)
Behind these statements stands the idea that rights result from, or are immanent in,
factual states of affairs. This is the fallac1ous 1nference from Is to Ought characteristic
of Natural Law theory.

Note 86

Hagerstrom rejects the concepts of legal duty and right as ‘mystical’: ‘The notion of
legal duty cannot be defined by reference to any fact, but has a mystical basis, as is
the case with right’ (1953: 8). On p. 4, he asks about the ‘fact’ which ‘corresponds’ to
one subject’s right to a certain behaviour on the part of another subject, e. g. to the
creditor’s right to be payed by the debtor. He 1s unable to find any such fact. He
concludes ‘that there are no such facts and that we are here concerned with ideas
which have nothing to do with reality’. This is correct if by ‘reality’ we understand
only natural realities and not mental realities. That which corresponds to the
creditor’s right is certainly not a fact, but the debtor’s Ought, which is not a fact but
the meaning of a fact (i.e. of an act). If we recognize that Ought is the meaning of an
act occurring in the real world—an act of law—creation—then there is no reason to
reject this Ought as a metaphysical concept—as Hagerstrom does—and so exclude it
from scientific cognition. His rejection of the concepts of right and legal duty as
‘mystical’ concepts is based on his denial of Ought. -

Note 87

For a criticism of the concepts of ‘duty’ and ‘right’, cf. my Pure Theory of Law (1967)
15, 42, 114f., 125 f., 130 f., 163, 168 f.
The distinction some pe0ple draw between a morality of duty and a morality of
virtue (cf. Bon, 1898: 171 ff.) is to be rejected. Even a so-called morality of virtue is a
morality of duty. For a person is virtuous if he fulfils his moral duties. The concept of
virtue presupposes that of duty, which results from a moral norm commanding a
particular behaviour.
Moritz’s theory (1941) that the norms of morality are not commands is completely
misguided, as is Guest’s claim (1961) that rules of law are not commands. Cf.
Endnote 76 above. Moritz says: ‘[Ethics] shows what is morally valuable. But it does
not command it. To that extent, ethics lays down norms, but they are not formulated
imperatively. If what is morally good ought to be, this does not mean that it is
commanded. If we want to call moral laws “laws of Ought”, then this does not imply
that they are commands’ (1941: 255). It is redundant to say ‘what is morally good
ought to be’, for something’s being ‘good’ simply means that it ought to be. The
Ought of morality is concerned with human behaviour. A moral law, a norm of
morality, is a certain meaning: the meaning that people are to behave in a certain way.
A behaviour is morally good if it agrees with a moral norm which decrees this
behaviour to be obligatory, whether the source of this moral norm is the act of the
founder of a religion such as Moses, Jesus or Muhammad, or custom. The meaning-
contents which represent the ‘Ten Commandments’ may have arisen in either way.
Ethics, as the science of morality, certainly does not describe the norms of morality in
imperatives, but in sollen-sentences in which the Ought has a descriptive character.
 Notes 87—88 329

But ethics does not lay down any norms, it does not command anything, it does not
prescribe anything; it only describes the norms which have arisen by way of moral
legislation or custom. The erroneous Opinion that moral norms are not commands is
to be traced back to the usual confusion of morality and ethics, i.e. of norms and
statements about norms. (Cf. below, ch. 40.)

Note 88

Rupert Schreiber (1962: 81) opposes my position in The Pure Theory of Law that
effectiveness is a condition for validity without being identical with validity, and
holds ‘that the effectiveness of a legal norm is identical with its validity’. His
argument against my position is this: ‘From the sentence “If a legal norm is not
effective, then it is not valid” there follows on logical grounds alone “If a legal norm
is valid, then it is effective”.’ I never asserted the sentence ‘If a legal norm is not
effective, it is not valid.’ I asserted that a legal norm loses its validity if it loses its
effectiveness or if it never becomes effective. I said so explicitly in my Pure Theory of
Law (1967), and Schreiber (p. 82) even quotes the passage: ‘A legal norm becomes
valid before it becomes effective, that is, before it is applied and obeyed; a law court
that applies a statute immediately after promulgation—therefore before the statute
had a chance to become “effective”—applies a valid legal norm’ (1967: 11).
In reply, Schreiber gives the following example:
In applying the legal norm, the court precisely gives an example of the legal norm’s
effectiveness. It is effective as soon as it becomes valid, even if it is not immediately observed
and applied. For even if it is not applied until later, the consequences of a transgression of the
statute are nevertheless extended to the time immediately after the coming into force of the legal
norm.
If effectiveness consists in the observance and application of the legal norm, it cannot
be effective before it is observed and applied. The consequences of a transgression of
the statute appear only after the statute has been transgressed. They are not
‘extended’ to the time immediately after the coming into force of the legal norm. If a
norm of criminal law becomes valid on 1 July 1950 and is applied for the first time on
30 August 1951 to a delict which was committed on 1 August 1951, the act of
punishment, which is the imprisoning of the delinquent on 30 August 1951, is not
‘extended’ to 1 July 1950. Schreiber’s claim about this ‘extension’ is simply
meaningless.
Furthermore, Schreiber does not realize that by equating the effectiveness and the
validity of a legal norm, he saws off the branch he is sitting on, namely, the
distinction between indicative and normative sentences which forms the basis of his
legal logic which is an application of logical principles to legal norms (which he calls
‘normative sentences’ as Opposed to indicative sentences). If the validity of a legal
norm is its effectiveness, then the proposition that a norm is valid simply means that
peOple behave in accordance with it, i.e. behave in a factual way. Valid legal norms
are then statements about the factual behaviour of peOple, and so, for example, the
legal norm about the punishing of thieves simply means ‘Thieves are punished with
imprisonment.’ That is a statement about a factual event which is true or false and is
of the same type as the statement ‘All humans are mortal.’ And so there is no specific
legal logic as a logic of normative sentences which can be neither true nor false, but
only a general pr0positional logic applicable to all statements, including the
statements of law which legal norms present themselves as.
330 Notes 89—90

Note 89

For example, Werner Goldschmidt says: ‘Law as a real object [this means the act of
will of which the legal norm is the meaning (cf. ch. 1. III above)] is effective or it does
not exist’ (1951: 191). Since the existence of a norm is its validity, the quoted sentence
asserts that the validity or existence of law is its effectiveness. Goldschmidt tries to
characterize the existence of law, i.e. its characteristic ‘Being’, in the following way:
The uninterrupted being of syStems of signs depends on their discontinuous satisfaction. Just as
one of Goethe’s poems or one of Beethoven’s symphonies lives on to the extent that it is recited
or performed with a certain regularity even if no attention is paid to it in the interval, in a
completely analogous way the law lives to the extent it is basically complied with.
The validity of the law is something completely different from the ‘living on’ of a
poem or a symphony. Law, as a norm, is ‘valid’, but a poem or a symphony is not
‘valid’. The reciting of a poem or the performing of a symphony is something
completely different from the observance of a norm. If any comparison is possible, it
is between the reciting of a poem or the performing of a symphony and the quoting
of a legal norm, and not its observance. The main point to be made against
Goldschmidt’s theory is that a legal norm begins to exist, i.e. to be valid, before it is
effective; it is only after it has become valid that it can be effective.

Note 90

Kurt Baier thinks that the difference between law and morality is that every
individual can have his own morality but not his own law:
we can distinguish between, say, English middleclass morality and Smith’s morality, whereas
we cannot disringuish between English law and Smith’s law; Smith cannot have his own law in
the way in which he can have his own morality. Smith is simply subjeCt to English law in a
manner in which he is not subject to English morality. Smith cannot accept or reject English
law, neither as a whole nor in part, but he can accept or reject, at least in part, English
middleclass morality. (1958: 233 f.)

That is clearly incorrect. No individual can have his own morality if morality is a
social order, as Baier admits when he says ‘Outside society pe0ple have no reason . . .
for being moral’ (p. 315), and ‘we could not tell, in the state of nature [i.e. ‘outside
society’ (p. 231)] . . . what we ought or ought not to do, or what is morally right and
what is morally wrong’ (p. 249). Morality is just as much a social order as late, and an
individual is just as suhject to the morality which is valid in the social group to which
he belongs as he is subject to the law which is valid in the social group to which he
belongs.
Baier then says: ‘And all this follows from the fact that there are moral, but no
legal truths. For if there are no legal truths, then obviously no individual can
ascertain or even have his own Opinion of what they are. If, on the other hand, there
are moral truths, then everyone can have his own View of what they are’ (p. 234). A
‘moral truth’ can only be the truth of a judgment that a behaviour is morally good or
bad, and this value-judgment is true if there is a valid positive moral norm
commanding or prohibiting this behaviour, as Baier himself assumes on p. 173. But
this is just as true of the value—judgments which assert that a behaviour is legal or
illegal. If there are moral truths, then there must be legal truths, since law is a
normative order, a system of norms, just like morality. An individual can no more
have his own opinion about what is a moral truth than he can about what is a legal
 Notes 90—92 331

truth, since both truths are conditional upon the validity of a normative order and
whether a normative order 15 valid is not within the discretion of the individual
person.

Note 91

P. W. Strawson makes the following comment about the ‘idea of the universal
applicability of moral rules’:
The idea is that it is a necessary requirement of a moral rule that it should at least be regarded as
applying to all human beings whatever. Moral behaviour is what is demanded of men as such.
But we can easily imagine, and even find, different societies held together by the observance of
sets of rules which are very different from each other. Moreover we can find or imagine a single
society held together by a set of rules which by no means make the same demands on all Its
members, but make very different demands on different classes or groups within the society. In
so far as the rules which give cohesiveness to a society are acknowledged to have this limited and
sectional character, they cannot, in the sense of this objection, be seen as moral rules. But the
rules which do give cohesiveness to a society may well have this character, whether
acknowledged or not. (1961: 5—6)
Carl Wellman distinguishes between ‘universality with respect to agents and
universality with respect to occasions’ (1961: 246), and says:
There is a real point in insisting that every moral directive must be universal with respect to
indicated agents. The rightness or wrongness of an action does not depend upon who is doing it.
Thus an action which would be obligatory for one person would be equally obligatory for any
other person under the same circumstances. . . . It does not seem so plausible, however, to insist
that every moral directive must be universal with respect to the occasions when it is applicable.
‘Do not lie’ probably prohibits everyone from lying on all occasions, but it would be perverse
to interpret ‘Tell the truth’ as prohibiting silence or writing novels. This prescription is tacitly
restricted to those occasions when the agent purports to be speaking informatively. Most
direCtives, in fact, have some explicit or implicit limitations upon the circumstances under
which they are to be fulfilled. It is hard to see why this should make them or the acts which
fulfill them any less moral. (pp. 245 f.)
The validity of the moral norm prohibiting lying can very well be restricted for a
certain category of persons: physicians can be commanded by their professional
morality not to tell the truth to their patients about the incurable nature of their
disease in order not to distress them. This can just as well be interpreted as a
restriction ‘with respect to indicated agents’ as one ‘with respect to the occasions
when it is applicable’.

Note 92

Thus Thomas Storer thinks it possible to distinguish between various ‘degrees’ of

imperatives according to their ‘force’: ‘ . a scaling might exist between the
following three imperatives: “do not kill”; “you ought not to kill”; “it is your duty
not to kill”; and a value system of relative force might be worked out on the basis of
such scaling’ (1946: 27). But what Storer presents as three ‘imperatives’ are not three
imperatives at all. Only ‘Do not kill’ is an imperative. ‘You ought not to kill’ is
materially a command, but linguistically it is not an imperative; and an ‘imperative’
is a linguistic form in which commands are expressed. ‘It is your duty not to kill’ is a
statement about the existence of a duty, which can—but need not—be instituted by
332 Notes 92—94

an imperatively formulated command. Thus, for example, the legal duty not to kill is
instituted by a legal norm which linguistically is not an imperative but a sollen-
sentence: ‘If someone kills another, he is to be punished.’ Linguistically, a sollen-
sentence is something different from an imperative. The command ‘You are not to
kill’, from the point of view of its bindingness, has no greater degree of force than the
command ‘Do not kill’ or the statement ‘It is your duty not to kill.’ It should also be
noted that it is not every command expressed linguistically in an imperative which
institutes a duty: for instance, a highwayman’s command to hand over my money.
An imperatively formulated command institutes a legal duty only if it corresponds to
a valid general legal norm.

Note 93

Speaking of the distinction between imperative sentences and declarative or

statement sentences, Sigwart says: ‘Thus the mere grammatical form is no infallible
indication that we have to do with a statement’ (1895: i. 18).
Manfred Moritz says: ‘From the mere grammatical form [i.e. of a sentence] it is not
possible sans plus to draw any conclusion about its logical signification. This is true
of sentences in which the words ‘will’ or ‘ought’ appear. In certain circumstances, the
future tense can also assume this function. It is the intention and the function which
are decisive’ (1941: 227).

Note 94

An attempt to understand law not as norms, i.e. prescriptions, but as statements,

indeed statements about the future behaviour of individuals qualified in a certain way
(namely, judges), i.e. as predictions of judicial decisions, was made by one of the
most respected jurists, Oliver Wendell Holmes:
Pe0ple want to know under what circumstances and how far they will run the risk of coming
against what is so much stronger than themselves, and hence it becomes a business to find out
when this danger is to be feared. The object of our study [i.e. law], then, is prediction, the
prediction of the incidence of the public force through the instrumentality of the courts (192117:
167). The prophecies of what the courts will do in fact, and nothing more pretentious, are what
I mean by the law (p. 173). The primary rights and duties with which jurisprudence busies itself
are nothing but prophecies (p. 168). . . . a legal duty so called is nothing but a prediction that if a
man does or omits certain things he will be made to suffer in this way or that way by judgment
of the court; and so of legal right (p. 169).
It is clear that in these statements Holmes does not convey the meaning which
general norms created by legislation and individual norms posited in judicial
decisions have. There is a fundamental difference between the meaning which norms
represent and the meaning of a prediction of future events, e.g. the prediction of a
meteorologist that it will rain tomorrow. For by predicting that it will rain
tomorrow, the meteorologist cannot bring it about that it will rain. But legislators, as
well as judges, by saying what has the character of a norm can—and that is their
intention—bring about what they say. If this were not possible, legislation and
adjudication—indeed, the whole process of creating law—would be pointless. The
meaning of what the legislators say is not ‘If someone commits theft, he will be
imprisoned’ but ‘If someone commits theft, he is to be imprisoned’; and the meaning
of what the judge says is not ‘Schulze the thief will be imprisoned’ but ‘Schulze the
 Now 94 333

thief is to be imprisoned.’ What the legislators will say is practically impossible to

predict What the judge will say can be predicted only with a certain degree of
probability, and that presupposes that judges generally apply the valid general norms
to concrete cases, in other words, it presupposes the normative meaning of what the
legislators have said.
Holmes justifies his interpretation of law as prediction 1n the following way:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only
for the material consequences which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience (p. 171). . . . if we take the view of our friend the bad man, we shall find
that he does n0t care two straws for the axioms or deductions, but that he does want to know
what the . . . courts are likely to do in fact. I am much of his mind. (pp. 172 f.)
Quite apart from the fact that it is not only the ‘bad’ man (i.e. one who wants to harm
others) but also the good man (whose only intent is to avoid harming others) who is
interested in knowing the law (for example, in order to know how to make a valid
will), one can only wonder how such a view of the nature of legal cognition could be
taken seriously. It is only the authority which Holmes enjoyed as a judge of the
Supreme Court which can explain how the absurd opinion that the law is discerned
by a potential evil-doer rather than by an objective science of law was received as a
pearl of wisdom. But even if we accept this Opinion, law has to be understood as a
norm and not merely as a prediction of the future evil to be avoided. For what answer
can a person give when he asks himself what a judge would do if he (the questioner)
were to behave in a certain way, for instance, kill another man or fail to pay a tax?
That the judge would, by applying a general norm which decrees punishment for this
behaviour to be obligatory, decide that the culprit is to be hanged or imprisoned, and
that the culprit would suffer the evil of punishment only if the judge posited such an
individual norm. The ‘law’ is this general norm and this individual norm. The
hanging and the imprisonment are simply the execution of the law. Even the
potential evil-doer who wants to avoid being hanged or imprisoned, and ‘looks to
the law’ merely for this purpose, can understand the law only as norm and not as
prediction. It is not the law which predicts the possible suffering of the evil of
punishment, but the potential evil-doer.
In his definition of law, Holmes considers only the function of the judge. He
ignores the fact that the law also contains general norms created by statute and by the
custom constituted by judicial decisions. He goes so far as to say: ‘It is to make the
prophecies easier to be remembered and to be understood that the teachings of
the decisions of the past are put into general propositions and gathered into text-books,
or that statutes are passed in a general form’ (p. 168). The claim that a prophecy is
easier to remember and better understood if it is expressed in a general form-—
actually as a general norm—is plucked out of thin air. But it goes even beyond the
bounds of paradox to say that the general norms of a statute are posited only in order
that the legislators’ utterances be better remembered and understood. It is true that
where customary law is valid and the general norms of customary law are not
codified, they are written down in text-books. But it is not because they are written
down that they are valid, and they have to be applied by the courts even if they are
not written down in text-books.
Morris R. Cohen says: ‘Holmes’ position is, I judge, in perfect agreement with that
of a logical pragmatist like Peirce: Legal principles have no meaning apart from the
judicial decisions in concrete cases that can be deduced from them, and principles
alone (i.e., without knowledge or assumption as to the facts) cannot logically decide
cases’ (1931: 363). That ‘principles alone cannot logically decide cases’ means that the
decision in a concrete case cannot follow by way of a logical deduction from a general
334 Notes 94—95

norm—i.e. by a process of thought—but that an act of will of the law is necessary,

namely the decision by which the general norm is applied. But this decision cannot
be ‘deduced’ from the general norm.
Furthermore, in his Collected Legal Papers (1921) Holmes very often speaks of law
not as a ‘prediction’, but as a binding norm. For 1nstance, when he refers to the‘most
sacred commands’ of the law (1921a: 27), or when he says (in the very essay in which
he advances the thesis that law is nothing but a prediction) ‘in societies like ours the
command of the public force is entrusted to the judges’ (192119: 167) and ‘many laws
have been enforced in the past, and it is likely that some are enforced now’ (p. 171). A
‘prediction’ is not a ‘command’ and cannot be enforced. Or when he speaks of the
law as ‘our mistress’ (1921a: 28), or says ‘I venerate the law’ (192119: 194), and ‘the
law is the witness and external deposit of our moral life . . . The practice of it, in spite
of p0pular jests, tends to make good citizens and good men’ (192119: 170). Even in
spite of jests that it is nothing but a prediction?

Note 95

Among the—very few—authors who clearly distinguish between a norm and a

statement about a norm, Fred Bon should be mentioned first of all:
The sentence ‘You are to do such and such’ can signify ajadgment reporting the command of
another person, as well as a command itself; it can be an indicative as well as an imperative
sentence. The judgment . . . always has the goal merely of increasing knowledge. [The
command] is not meant to further knowledge, but to influence the will of the person to whom it
is directed and to bring about a certain behaviour the performance of which is wanted by the
person issuing the command and satisfies his interest. A judgment can be right or wrong
according to whether what it reports occurs in reality or not. But the characteristics ‘true’ and
‘false’ are inapplicable to commands. . . . If we are aware of this distinction between a
judgment—the report of a command—and a command, then there can be no doubt about the
task which is incumbent upon us. (1898: 22)

Manfred Moritz also says:

If someone says ‘You are to perform action A’, this sentence can have the same signification as the
imperative ‘Perform action A!’ Suppose now that such an imperative exists. One can in return
issue a judgment about this imperative. For instance one can determine that action A has been
commanded, that a certain subject C has commanded this action, and finally that it is the action
of subject S which has been commanded. All these sentences can be combined in a single one:
commander C commanded action A to subject S. (1953: 143)
The last claim is incorrect. The first three sentences—(1) ‘Action A has been
commanded’, (2) ‘Subject C has commanded action A’ and (3) ‘Action A is
commanded to subject S’—cannot be combined in the last sentence, for it is a
statement about an act of commanding, and so a statement about an Is. So are
sentences 2 and 3. But if the first sentence ‘Action A is commanded’ means ‘Action A
is oblgatory’, then it is a statement about an Ought, about a command or norm, and
so is not equivalent to a statement about the act of commanding.
Moritz continues: ‘Now if someone wants to inform S, the subject of the
command, that action A IS commanded to him, this can be expressed linguistically 1n
the following way: “You are to perform action A’ In this instance, “You are to
perform action A” functions as a judgment. It IS in fact a judgment about an Ought
Then Moritz says:
Fhis judgment has the same wording as the sentence earlier understood as an imperative. In
ther words, the sentence ‘You are to perform action A’ is ambiguous. It can function as an
-
 Note 95 335

imperative; it then has the same signification as the sentence ‘Perform action A!’. But if ‘You are to
perform action A’ functions as a judgment, then it has the same signification as the sentence ‘It is
commanded to you to perform action A’.
That is correct. But the sentence ‘It is commanded to you to perform action A’ is not
synonymous with the sentence ‘The commanding subject C commanded action A to
subject S.’ For this is a judgment about the act of commanding—an Is—while the
sentence ‘It is commanded to you to perform action A’ is a judgment about an
Ought, about a norm, about the meaning of the act. Moritz is unaware of the
fundamental logical difference between the act of commanding, the norm-positing
act—which has a meaning—and the meaning of this act, the command, the norm—
which is an Ought.
R. M. Hare also appears to recognize the ambiguity of the word ‘ought’. He says:
“‘Ought” also shares, as we should expect, the characteristics of “good” which
concern the relation between the descriptive and evaluative or prescriptive forces. It
is clear that some sentences containing the word “ought” have descriptive force’
(1964: 159). On p. 164, he says: ‘I have to show that “ought”-sentences, at any rate in
some of their uses, do entail imperatives’, and ‘I do not wish to claim that all
“ought”-sentences entail imperatives, but only that they do so when they are being
used evaluatively.’ And Hare adds: ‘I should not say that an “ought”—sentence was
being used evaluatively, unless imperatives were held to follow from it.’
Max Scheler speaks of the two meanings of sollen, which can be the immediate
expression of a command or the mere report that the commander wants something
(1973: 170). But he also draws another distinction between two kinds of Ought
(pp.203 ff.): an ‘ideal’ Ought and an ‘imperative’ Ought. The latter is an Ought
which ‘represents a demand and an order imposed upon a conation’ (p. 203).
‘Whenever we speak of “duty” or “norms”, we are concerned not with an “ideal”
ought but with a specification of it as something that is imperative.’ This distinction
is untenable, since it is clear that even the ‘ideal’ Ought Scheler has in mind is a norm,
an imperative—i.e. normative—Ought, even if it is not the meaning of a human act
of will. Behind the Schelerian dualism of ideal Ought and imperative or normative
Ought, there hides the dualism of a theological ethics whose object is norms posited
by God and the ethics of a positive morality whose norms are posited in the empirical
world by human beings.
Cf. my Pure Theory of Law (1967) 71 ff. The view advanced by some that legal
norms are hypothetical judgments is based on the failure to distinguish between a
legal norm and a proposition of law (which is a statement about a norm). Supporters
of this View include Ernst Zitelmann (1879: 222 f.) and more recently Eduardo Garcia
Maynez (1958) among others. Cf. my Pure Theory of Law (1967) 79 [Translator’s
Note: an important footnote is missing on p. 79; it discusses Zitelmann’s theory as
well as Kelsen’s failure to distinguish between a legal norm and a proposition of law
in some of his earlier works; cf. Reine Recktslebre (1960) 83.] Nor is the so-called
‘judgment’ of a court a judgment in the logical sense of the word; it is an individual
norm, a prescription and not a description. Cf. also my Rechtswissenschnft nnd Rec/2t
(1922), where I say: ‘As alogical material, statutes, judgments and administrative acts,
etc. [i.e. legal norms] are taken up in the judgments of the prOpositions of law and are
thereby raised to the logical sphere’ (p. 93). Anyone who thinks he can ‘find
judgments in this alogical material’ commits a fundamental error.
336 Note 96

Note 96

Hessel E. Yntema rejects the View that legal science is a normative science on the
grounds that this confuses law and ethics (he clearly means ‘law and morality’):
The ‘normative’ conception of legal science not only precludes the objective narration of
conventional legal principles by confusing law and ethics, but, in the name of reason, it
apparently proposes to validate both legal and ethical standards by reference to individual
opinion and subjective intuition and thus to control life. Need it be pointed out that this is the
very metaphysic of ethocratic philosophy, which hardly disguises in dialectic the intuitive
impulses to reform. (1931: 945)
That is true only if we understand by a ‘normative’ science a discipline which posits
norms, rather than a science which has norms as its object and which does not
undertake to do anything other than describe these norms and their mutual relations,
without wanting to evaluate its object or reform it. But Yntema objects to a
normative legal science: ‘ . . . legal science is identified with its subject-matter, law,
and its possible generalizations defined by the rules of laW’ (p. 950). If this is the case,
then a legal science which is normative in this sense is certainly to be rejected. For
then what we have is not science, but politics, indeed legal politics.
Morris R. Cohen rejects Yntema’s conception (1933: 219ff.). He says on p. 240:/
‘Legal science is normative, in the first place, in the sense that it deals with norms.
Legal rules, whether embodied in statutes, accepted legal doctrines, or judicial
decisions, are normative, in that they contain imperatives or orders regulating what
men should do.’ Thus he distinguishes law as norm from legal science, which takes
law (as norm) as the object of its cognition. But he occasionally speaks of ‘law’ as a
science. Already his attempt to compare law With natural science (pp. 166 ff.)—‘a
suggestive parallel can be drawn between the functions of the law and of natural
science’—is questionable. A natural science cannot be compared with the ohject of
legal science. When distinguishing law from physics (p. 170), Cohen fails to mention
the essential point: that law is a complex of ought-norms while physics is a system of
is-sentences. In this context, he says ‘that the role of deduction is not an accidental
incident in law and natural science but is rather an essential part of their life’. On
p. 173 he says (clearly with a view to justifying the application of logical principles to
law):
Every science must use logic to test whether certain conclusions do follow from‘given premises.
But that which distinguishes one science from another, e.g. , law from physical chemistry, is the
subject matter, the axioms and postulates from which conclusions are drawn. The subject
matter of the law (as of a science different from the science ‘physical chemistry’) is the
regulation of the conduct of individuals . . .
But ‘the regulation of the conduct of individuals’ is not ‘the subject matter of the
law’, but is ‘the law’ (which is the object of legal science). On p. 281 he refers to
Husserl’s
insight of the inadequacy of the old positivistic logic which assumed that logical demonstration
is concerned only with what actually exists . . . This means that there is a scientific point of view
from which hypotheses or assumptions have logical characteristics, apart from the question
whether their subject matter has actual existence. This enlargement of the conception of valid
logic has many important applications to juristic study. For one thing, it renders nugatory the
positivistic ideal of juristic science as dealing only with what is. It shows us that a science of
what ought to be, of desirable or just law, may be logically as rigorous as mathematics.

If he means that there can be a science which determines what is ‘just’ law, that is, not
only what the law is but what it ought to be, then it has to be said such a ‘science’ is
 Notes 96—98 337

impossible. Determining what law ought to be is legal politics, not legal science.
In Reason and Law (1961), he says ‘that without logical connections there could be
no legal order or system’ (p. 12), and on p. 142: ‘judges or magistrates must, even in
the absence of legislation, be bound by rules, so as to eliminate as far as possible the
personal equation and make the law uniform, definite, and certain. This requirement
that the law should be rational, i.e. deducible from established principles, compels
the law to assume the form of a deductive science.’ Here we see that the idea of law as
a science appears to play a certain part in the question we will be discussing later
whether a judicial decision can be reached by way of a logical inference from a valid
general norm. If law is a science, its sentences are the meaning of acts of thought, and
logical principles are applicable to the meaning of acts of thought. Cf. below, ch. 50.

Note 97

Carl Wellman does not see any fundamental relation between ethics and morality (as
the specific object of ethics). He uses the expression ‘ethical judgments’ not only for
judgments about moral norms, but also for other value—judgments. He says:
‘Although I recognize the reality of the distinction between the specifically moral
and the nonmoral, I wish to use the terms “ethical sentence” in a way which is broad
enough to include both. In large measure, this is because I feel that, important as the
differences between moral and nonmoral judgments of value or obligation are, the
similarities are more basic’ (1961: 10). He does not seem to realize that ‘ethical
judgments’ can only be judgments about moral norms, and so are possible only if we
presuppose the validity of specific moral norms. In any case, he ignores this
fundamental connection between ethics and morality.

Note 98

If law is conceived of as a science, general legal norms must be interpreted not as

prescriptive, but—like natural laws—as descriptive statements, and all normative
character denied them. An example of this IS an article by Joseph Bingham (1912):
Certainly there are rules and principles of law, as there are rules and principles of biology or of
architecture or of any other science or art. They occur whenever legal problems are under
process of solution. We find statements of them in textbooks and in judicial opinions and
elsewhere. They are mental things [they ‘cann0t exist outside of the mind’ (p. 4)]. A rule of law is a
generalized absrract comprehension of how courts would decide concrete questions within its
scope. A principle of law is an abstract comprehension of considerations which would weigh
with courts in the decision of questions to which it is applicable. Only one with sufficient
knowledge and mental ability can construct a principle or a rule of law. Courts and legislatures
have no monopoly in producing them. There is nothing authoritative in the existence of a rule
or principle. (p. 22)
The fact that, as meaning-contents, legal norms are ‘mental things’ is no reason for
considering that they do not bind. Even the individual norms which represent
judicial decisions are mental things and so do not exist outside of human
consciousness; yet we cannot deny their authoritative character. Furthermore, the
‘legislators’ general legal norms as well as the individual legal norms of judicial
decisions are meaning-contents of acts of will expressed in a sensibly perceptible
way, i.e. in Speech and writing.
Bingham continues: ‘If these generalizations accurately indicate potential legal
338 Notes 98—99

effects within their scope, or comprehend accurately considerations which would be

given weight by courts in the decision of cases, they are valid rules or principles of
law.’ Here Bingham confuses the validity of general legal norms with their
effectiveness and equates general legal norms with natural laws, i.e. interprets them as
statements about future events. But these general legal norms are not statements
about the way courts will decide concrete cases, but norms prescribing how courts
are to decide concrete cases. And it clearly contradicts the facts when Bingham claims
that anyone can posit general legal norms. In fact, it is only certain definite
individuals, empowered thereto by the legal order, who have the power to posit legal
norms: legislative, adjudicative, and administrative organs (leaving aside customary
law). The fact is that these individuals have the monOpoly of positing law by their
acts directed to that effect.
Bingham’s untenable theory is clearly connected with his confusion of law and
legal science. On p. 115, he speaks of ‘ “the law” in the sense of the science of law’,
and says: ‘the term so used does not denote the field of the lawyer’s profession, but
systematized knowledge concerning thatfield’. On p. 118, he says:
In law as in other sciences, ‘norms’, that is general rules subject to exceptions and variations,
may be devised as expedient means of comprehension and classification. As in all sciences and
arts, however, they are Only mental tools and should not be elevated by a process of mental and
linguistic obscuration into the position of the subject matter and end of the law itself. The
statement that the law is a normative science does not distinguish the law from the field of other
sciences, but it serves as an excellent blindfold to lead students from a study of the law to a
dialectical study of someone else’s generalizations.
Of course, anyone can make general statements about the law, and in particular,
predictions about judicial decisions with a certain degree of probability. But these
statements are not norms binding on any addressees.

Note 99

A typical example of this confusion of ethics and morality is Charles L. Stevenson’s

claim ‘that normative ethics is more than a science . . . that ethical issues involve
personal and social decisions about what is to be approved, and that these decisions,
though they vitally depend upon knowledge, do not themselves constitute
knowledge’ (1947: foreword). Decisions about what is to be approved—and that
means in the first instance how one is to behave—are not the function of ethics, but
of morality, the description of which is the task of ethics.
The confusion of ethics and morality is also characteristic of Stephen Edelson
Toulmin’s An'Examination of the Place of Reason in Ethics (1960). The central
problem of this work is the question ‘Is ethics a science?’ (pp. 121 ff.), and Toulmin
answers in the negative because ‘the parallel between ethics and science breaks down’
(p. 125). He speaks of the ‘contrast of science and ethics’ (p. 127), and on p. 128 of
‘the crucial difference between science and ethics’. All this because he understands by
‘ethics’ not the science of morality (or of a particular morality), but the object of this
science, namely, morality. He uses both words interchangeably, and speaks
sometimes of ‘ethical judgments’ and sometimes of ‘moral judgments’: cf. pp. 121,
123, 124, 125, 127, 128, 129. He Opposes ‘ethical’ (or ‘moral’) judgments to ‘scientific
judgments’ and considers that ‘the difference in function between scientific and
moral judgments’ is that ‘the one [is] concerned to alter expectations, the other to
alter feelings and behaviour’ (p. 129). It is doubtful whether his characterization of
the function of scientific judgments is correct. Their function is surely to increase our
knowledge. But the important point is that by this characterization of the two kinds
 Notes 99—100 339

of judgment Toulmin is expressing the difference between science and morality

rather than the difference between science and ethics (as a science of morality). It can
certainly not be denied that there exists a science whose object is morality (as a
system of norms), that the name of this science is ‘ethics’, and that this science (like
any other science) is directed to our knowledge, while its object (morality, as a
system of norms) is directed to our will. On p. 137, Toulmin says:
In its early stages, therefore, morality boils down to ‘doing the clone thing’; and this is true,
both of the way a child learns from its parents, and, in social pre-history, of moral codes.
Primitive ethics [by this he understands ‘morality’] is ‘deontological’, a matter of rigid duties,
taboos, customs and commandments. It prevents conflicts of interest by keeping the
dispositions of all concerned aligned, and condemns behaviour directed away from the
prescribed aims.
What Toulmin says here of ethics applies only to morality. Only morality decrees
duties and addresses commands to people. Ethics merely gives people information
about the duties decreed by morality and the commands morality addresses to
pe0ple. It must nevertheless be admitted that English encourages this confusion of
ethics and morality, since the word ‘ethics’ has both significations: 1n Webster’s New
International Dictionary of the English Language (London, 1927), we read under
‘ethics’: ‘1. A treatise on morals . . . , 2. the science of moral duty . . . ,3. Moral
principles, quality, or practice; a system of moral principles; as, social ethics, medical
ethics; the morals of individual action or practice; as the ethics of a conscientious
man, or of a criminal deed’.

Note 100

That is generally recognized. Sigwart says that ‘pr0positions of statement or

declaration . . . aim at truth, and make claim to be believed’ (1895: i. 18), unlike an
imperative sentence which ‘does not call for belief but obedience’ (i. 17).
Alexander Pfander: ‘Every judgment contains a claim to truth’ (1921: 209).
‘However it may have been constituted, a mental construct which does not
essentially contain a claim to truth, is therefore certainly not a judgment.’
Accordingly, mental constructs of an imperative character, such as p‘rescriptions,
decrees, commands, prohibitions, orders and laws’ (p. 149)—and that means
norms—are not judgments.
In the Preface (p. vii) to his Logical Studies (1957), which contains his article
‘Deontic Logic’ (1951), G. H. von Wright calls this article ‘a logical study of norms
(normative discourse)’, and says that ‘I find this paper very unsatisfactory. For one
thing, because it treats of norms as a kind of proposition which may be true or false.
This, I think, is a mistake.’ He admits ‘that norms [are] removed from the realm of
truth’, but claims that they are nevertheless ‘subject to logical law’. But he
presumably assumes that there is an analogy or parallel between the validity of a
norm and the truth of a statement, and this is a mistake.
Morris R. Cohen and Ernest Nagel say: ‘Almost all human discourse would
become meaningless if we took the View that every moral or esthetic judgment is no
more true or false than any other’ (1946: 352). If ‘judgment’ is understood as a
judgment in the logical sense of the word, then a ‘moral judgment’ is a judgment
about the validity of a moral norm, and such a judgment—like any judgment—can
indeed be true or false. But by ‘moral judgment’ Cohen and Nagel understand
norms, namely, imperatives. They say on p. 62: ‘Moral judgments usually take the
form of imperatives. We ought to honor our father and our mother, to be loyal to the
interests of our country, to tell the truth, to refrain from murder and the like.’ And
340 NotelOO

they continue: ‘In what sense, if any, do such judgments involve pr0positions that
are true or false, so that logical principles can be applied to them?’ [This is the same
problem as the one which will be discussed later, ch. 50 below.] From the subsequent
discussion, it is clear that the authors equate these ‘judgments’ with ‘moral
commands’ (p. 363) or ‘moral postulates’ (p. 364). They fail to distinguish between
moral norms and moral value-judgments which are judgments about the relation of a
given human behaviour to a moral norm presupposed to be valid. The relevant
chapter is entitled ‘Logic and Critical Evaluation’. We read on pp. 365 f.:
Most men, for instance, regard health as good and may even look with amazement at the
suggestion that in some cases it might nor be so. Yet there are numerous occasions when we do
deliberately sacrifice health to achieve Other ends. Sometimes such sacrifices, like those made for
the sake of temporary pleasures, wealth, honor or reputation for beauty, may in retrospecr be
regretted and pronounced foolish. But at other times, as when we sacrifice health for the sake of
those we dearly love, or for some cause like country or religion without which we deem life to
be not w0rth much to us, we look back on such sacrifices with approval. This is also true of
other ends, such as wealth, reputation and the like.

This simply means that we have changed our views concerning the highest values and
consequently concerning the validity of the norms instituting these values. Not that
these norms are true or false. But the 'two authors conclude: ‘Moral rules, then,
according to this view, enable us to discriminate between ultimately wise and
ultimately unwise choices.’ But to say that our choice is ‘wise’ or ‘unwise’ is a value-
judgment which refers to a norm which institutes the value ‘wise’ and is no more true
or false than the other norms discussed here, in particular the norm that we ought to
preserve our health.
What people ought to desire is what they would desire if they were enlightened and knew both
what they really wanted and what natural means would bring it about. Morality is thus wisdom
applied to the conduct of life, and yields rules which we would follow if we thought out all the
implications of our choices and knew in advance their consequences. (p. 366)
This attempt to reduce morality to knowledge is untenable. Even if someone knows
what he wants and knows the means to bring about the satisfaction of his wants as
well as the consequences of satisfaction, his behaviour can be morally assessed as
good or bad according to whether it agrees or not with a moral norm presupposed to
be valid; and this moral norm is neither true nor false.
Eduardo Garcia Maynez distinguishes between a ‘judgment’ and a ‘statement’, but
he admits that ‘in the Opinion of a logician’, judgments and statements ‘are
interchangeable’ (1958: 1). His distinction between a ‘statement’ and a ‘judgment’ is
that a ‘statement’ is the linguistic expression, ‘the linguistic formulation of a
judgment’. When he speaks of ‘imperative statements’, he means what is usually
called an ‘imperative sentence’. He does not deny that judgments are true or false,
and claims ‘that the norms of law have the character of judgments’. But in another
paper (1959) he says: ‘Just as the logical principle of contradiction states that two
contradictory statements cannot both be true, so the corresponding principle of
juristic logic teaches that two contradictory legal norms cannot both be valid’ (1959:
202). Here he clearly presupposes that legal norms are not true or false (like
judgments) but valid or invalid, and so cannot be judgments. This contradiction is the
result—as we shall see—of a failure to distinguish between a norm and a statement
about a norm. Cf. below, ch. 57. x11.
 Notes 101—102 341

Note 101

Robert G. Turnbull (1960) tries to reduce an ought-sentence representing a norm to

an is—sentence. He says on p. 381 that the moral norm ‘ “You ought to do X (in these
circumstances)” means “If (in these circumstances) you wish to be moral, then you
will do X” ’. But the two sentences have two completely different meaning-contents,
and this difference manifests itself in the fact that one of the sentences—the norm—is
neither true nor false while the other—the statement—can be true or false. It is
perfectly possible for someone to want to be moral, and yet not perform the
behaviour commanded by morality (viz. to tell the truth) because in a concrete case
he is not able to carry out his intention to be moral and lies in spite of his good
intentions because he will suffer harm if he tells the truth. Then the statement ‘You
will do X’ is false. It is true only if the person’s actual behaviour agrees with his will
to be moral, if he says the truth in the concrete case even though he knows that he
will suffer harm in so doing. But most importantly, the statement ‘If you want to be
moral, you will tell the truth’ refers to an ought—norm, the norm ‘One is to tell the
truth.’ For a person—to be more exact, for his behaviour—to be ‘moral’ means that
his behaviour agrees with an ought-norm. The is-statement being discussed
presupposes an ought-norm different from it. This ought-norm is not reducible to the
is-statement. The difference between the two cannot be eliminated. '

Note 102

René Marcie tries to establish a new theory of law which is Is-based rather than
Ought-based (1965: 521). But that means a theory of law which understands law as Is
and not as Ought. The passage is preceded by the statement that there exists a ‘crisis
in law’—not in legal theory—which is rooted ‘in the forgetting of 15’ (p. 520). ‘The
forgetting of Is’ is a reproach which can only be addressed to legal theory and not to
law, to a legal theory which tries to understand law as Ought rather than Is. But
Marcic says: ‘The Law today stands there without any foundation; it balances over
the chasm which has opened up between the regions of Ought and of the existing
world.’ If contemporary ‘Law’ has ‘no foundation’ and ‘balances over a chasm’, then
it cannot ‘stand there’; and one cannot seriously deny that it ‘stands there’, i.e. that
the Law today is valid, that it exists, that it is present, if one requires of legal theory
that it ‘ground the law’, i.e. that it reveal its foundation, the foundation of its
existence, of its Being.
But this whole way of putting the question is pointless. For contemporary legal
theory is far from forgetting the Is of law. If legal theory can be criticized, it is not for
forgetting the Is of law in favour of its Ought, but quite the Opposite, for forgetting
the Ought of law in favour of its Is, for failing to distinguish clearly enough the
specific ideell Is of law from the real Is of natural, sensibly perceptible, facts.
What Marcie is getting at is what (according to Marcic) Heidegger ‘stated tacitly’:
that law is ‘present from the very beginning simultaneously with the coming-to—be of
Being’ (p. 524), that ‘from within Being’ the nomoi act upon man and determine his
existence (p. 525), that the function of man with respect to law—or as Marcie says,
‘man’s primordial answer’—is ‘not a positing, not an activity, but a seeking and
finding, an opening-of—oneself to the influence of that which is assigned, a receiving of
the rule’; that ‘the essence of the unfolding of law, of the hecorning of law, i.e. of the
creation and application of law, . . . is seeking and finding the law’ (pp. 531 f.). This is
the old and untenable thesis of Natural Law theory, that Ought is immanent in Is,
that norms—the true, just norms of human behaviour—are immanent in the reality
342 Notes 102—103

of nature, and that consequently man cannot create true law, but can only find it—in
nature. This appears without any disguise when Marcic declares (pp. 528 f.) that ‘man
and his law are secure only when the legal order is understood as a necessary feature
of the constitution of Being, . .that the law 13 not created and issued originally by
the activity of man, by legislators, by the volonté ge’némle, but that 1t is an emanation
of the order of Being which mankind encounters’ (p.531), and when Marcic agrees
with the thesis of the Catholic writer Albert Auer (1956) that the origin of law is to
be seen in God. Man can only "receive the law ‘from within Being’ if it is the will of
God 1n Being, which acts upon’ man. When Marcie (p. 529) adds the restriction that
before being grounded theistically, Natural Law must be grounded ontologically,
and that ‘for the question of law, the question of Being 1s “primary’’and the question
of God is “secondary” ’, he overlooks the fact that the legal order can be understood
as ‘a necessary feature of the constitution of Being’ only if the essence of Being
consists in its agreeing with a command of God, if the normative will of God is
realized in Being. If a Natural Law is essentially immanent in Being, then the
question of Being is the question of God. On p. 529 Marcie says: ‘The question of
Being is the first question of law; for the finished, posited, created law—created by
the hand of man—presupposes the law of Being, namely that law which declares
itself beforehand “by nature”. The latter stands above the former.’ But the latter is
like the former, or as Marcic says, ‘nomos’. And it can be ‘nomos’ only if it is the
meaning of a will; and that will can only be the will of God, if this nomos stands
above the nomos created by man.
The outcome of this operation of grounding the law 1s: ‘The norm (as Ought) 1s
therefore not an autonomous “realm of values”, but rather a (Sig tpoitog) modus
essendi, a specific way of being’ (p. 563). If law (as norm) lS Ought, then it cannot be
denied that it institutes a value, if the judgment that something has value means that it
is as it ought to be according to a valid norm. But that does not exclude that a norm
(an Ought) can Be. Only this Being is different from the Being of natural, sensibly
perceptible, reality: it is a specific, ideell, Being, rather than a real Being. But we
search in vain for this distinction—emphasized by the Pure Theory of Law—in
Marcic’s grounding of the law, even though it deals in detail with the Pure Theory of
Law.

Note 103

Stephen Edelson Toulmin claims that goodness and rightness are not properties of
ways of behaving (1960: 9ff. and 28 ff.). On pp. 9f. he says ‘that there is as much
reason for saying that goodness and rightness are not properties at all as there is for
saying that they are pr0perties, of a special kind, “not natural” ones . . . that, when
we talk of goodness or rightness in their most typically ethical sense, we are not
talking about any directly-perceived property of the object’. It is true that ‘goodness’
and ‘rightness’ in an ethical sense are not immediately perceptible pr0perties. But, as
is indicated in the text, this does not mean that they are not pr0perties at all. Toulmin
says on p. 28:
‘Rightness’ is not a property; and when I asked the two people which course of action was the
right one I was not asking them about a property—what I wanted to know was whether there
was any reason for choosing one course of action rather than another; and, provided they are
arguing about the reasons for my doing different things, we are perfectly justified in talking of a
genuine contradiction between ‘N is right’ and ‘No, not N, but M’. The idea (which the
philOSOpher takes for granted) that, if one man attributes the predicate ‘X’ to anything and
another withholds it, they cannot be contradicting one another unless ‘X’ stands at least for a
 Notes 103—104 343

property, is a fallacy. All that two people need (and all that they have) to contradict one another
about in the case of ethical predicates are the reasons for doing this rather than that or the other.
If the term ‘right’ in the question ‘Which course of action is right?’ is an ‘ethical
predicate’ and the question therefore means ‘Which course of action is morally
right?’, and if the person asking the question wants to know if there is any reason for
preferring one course of action to the other, he wants to know if there is any moral
reason why he ought to prefer course of action M to course of action N. The moral
reason for this can only be that there is a valid moral norm which decrees course of
action M to be obligatory and that course of action M agrees with this valid moral
norm while N does not. The fact that a certain course of action agrees with a valid
moral norm, i.e. that it is as it ought to be according to a valid moral norm, is,
according to generally recognized linguistic usage, a property of the course of action
Not a property immediately perceptible with the senses, but a property which can be
discerned by comparing the course of action in question with the course of action
decreed to be obligatory in the valid moral norm. That a certain course of action
ought to occur—i.e. the norm which decrees this course of action to be obligatory—
is certainly not a property of any actually occurring, existing, course of action. The
existing course of action and the course of action decreed to be obligatory (in a norm)
are two different things. Cf. the discussion of the modally indifferent substrate,
above, ch. 16. ‘
Toulmin contrasts the category of a ‘prOperty’ with the concept of a ‘gerundive’.
On pp. 71 f., he says:
questions of ethics and esthetics as well as of logic, are evidently concerned . . . with concepts . . .
we can class together as ‘gerundives’ thereby opposing them to such logical categories as
‘properties’ . . . The name ‘gerundives’ is appropriate because they can all be analysed as
‘worthy of something—or-other’; in this resembling the grammatical class of ‘gerundives’, which
appears in one’s Latin primer—consisting of such words as amandns, which means ‘worthy of
love’ (or ‘meet-to—be—loved’) and laudandas, which means ‘worthy of praise’.
But the gerundive ‘that which is to be loved’ or ‘that which is to be praised’, or—as
Toulmin says—‘worthy of love’, ‘worthy of praise’, means that something is to be
loved or praised, and this presupposes a valid norm prescribing that one is to love or
praise that which appears in the grammatical form of the gerundive. But Toulmin
ignores this presupposition. It is significant that in his book about ethics the concept
of a norm plays no part at all. He speaks of ‘moral principles’, but what he has to say
about them shows that he does not realize that the object of ethics—i.e. morality—is
a system of norms, and that ‘ethical sentences’ (p. 51) are statements about norms or
about relations to norms. He characterizes ethics in the following way: ‘Ethics is
concerned with the harmonious satisfaction of desires and interests’, and the
‘moralist’ as ‘the man who criticises the current morality and institutions, and
advocates practices nearer to an ideal. And the ideal he must keep before him is that
of a society in which no misery or frustration is tolerated within the existing
resources and state of knowledge’ (p. 233). But that is not ethics as sack—or to be
more exact, morality as sack—but rather one particular morality, a form of
hedonistic morality which is not at all the same as Christian or Stoic morality.

Note 104

Christoph Sigwart says: ‘The immediate object of willing . . . can always be only the
imagined outcome’ (1889: 176). He calls ‘the representation of a future state of
affairs’ the ‘first element’ of the inner process of willing (p. 120).
344 Notes 104—107

Heinrich Maier defends the view that all acts of will are connected with
representations of ends: ‘The fact that in all cases willing-processes include this
presentative element has its roots, so it appears, in the typical mental nature of these
processes’ (1908: 573). In the fifth section of his book (p.556), under the title
‘Volitive Thought’, Maier speaks of ‘desire-representations to which there belong not
only the ideas of ends of willing-processes at all levels, but also the wish-
representations and the command—representations’. And he claims that these
representations ‘deve10p out of tendencies to desire’, that ‘the acts of representation
are only part of the functions of the processes of desiring, precisely those in which
the desiring person makes conscious the goals of his desiring’. Thus a ‘tendency to
desire’ already precedes the representation.

Note 105

An article by Anders Wedberg (1951) is a typical example of the identification of the

validity of a norm with the act of positing it. Wedberg insists on ‘the factual basis of
legal science’ (pp. 247f.) and understands by the ‘factual basis’ ‘certain (oral or
written) utterances to which a specific legal authority is accorded. Such utterances are
codified laws or statutes, court decisions, formal contracts . . . ’, and further on
‘customs or practices which likewise are recognized as possessing a specific legal
authority’ (p.248). Wedberg calls these acts by which general or individual legal
norms are posited the ‘factual basis’ of legal science. Speaking of the pr0positions of
legal science which assert that certain norms are valid (‘these rules are in force’), he
says that they have ‘reference to the factual basis of legal science’ (p. 260). But the
statement that a norm is valid does not refer to the act of its positing. The latter is a
condition for validity, but not validity itself.

Note 106

Edmund Husserl says that unreal or mental objects are those ‘to whose pr0per
essential determinations there belong the determinations “sense [Sinn] of . . .”,
“significance [Bea’eatang] of . . .”’ (1973: 268). Walter Becker (1952: 227), following
Husserl, speaks of mental [geistig] realities, and characterizes norms as mental
realities. This is true of a norm as the meaning of an act, not the act of which the
norm is the meaning. This act is a ‘reality’ in the usual sense of the word; in Husserl’s
terminology, a ‘real’ object rather than an unreal, mental or ideell object.

Note 107

C. J. Ducasse emphasizes that the ‘existence’ of an object is not a ‘property’ of the

object (1948: 262). He rejects conceiving of existence
as if it were a character, like color or shape . . . Of course, the words ‘actual’ and ‘existent’ are
adjectives; but it is of crucial importance to realize that n0t all adjectives are quida’ative ones—
that not all stand for properties, attributes 'or other aspects of the nature of something. Those
two adjectives in particular predicate not what their subject is, but that it is. They are existential,
not quiddative.
 Notes 108—109 345

Note 108

Ulrich Klug believes that the legal norm ‘All professional receivers of stolen goods
are to be punished with up to ten years’ imprisonment’ can be ‘translated’ into the
sentence ‘All professional receivers of stolen goods have the property that they are to
be punished with up to ten years ‘imprisonment’ (1966: 51). By this translation, ‘it is
clearly asserted of any individual that whenever he has the property of being-a-
professional—receiver-of-stolen—goods, then he also has the property that-he—is-to-be—
punished-with-up-to-ten-years’-imprisonment.’
Punishment is a particular kind of sanction. When a person is to be punished, this
means that a specific coercive act is to be performed against him. That this is not a
property of a person or of his behaviour is particularly clear when the sanction in
question is not punishment, but the execution of a civil judgment. Suppose, for
instance, that the following norm is valid: ‘If a debtor does not pay his creditor the
money owed him, the debtor is to be coercively deprived of a certain amount of his
assets and this amount used to pay the creditor.’ A judge decides in a concrete case:
‘Maier, who failed to pay his debt of 1,000 to Schulze, is to be coercively deprived of
his automobile and his creditor paid from the proceeds of the sale of the automobile.’
It is clear that the general norm is not the property of defaulting debtors or the
individual norm the property of Maier. The inadmissible translation of the norm that
professional receivers of stolen goods are to be punished into a property of
professional receivers of stolen goods is the means Klug uses to justify the possibility
of an inference from the general norm to the validity of an individual norm (a judicial
decision) against a particular receiver of stolen goods.

Note 109

Sigwart (1895:i .89) ‘Everything which exists as a particular thing 15 given to us in

time, it occupies a definite position in time. .Thus a reference to time 18 necessarily
connected with all our judgments concerning the existence, attributes, activities, and
relations of particular things, and all such judgments can claim to be valid for a
definite time only.’ Unlike other judgments whose ‘objective validity is independent
of time’ (p.90). For example, ‘Blood is red’. ‘Thus the narrative—judgment is never
completely expressed unless it contains a statement of the time for which the unity of
predicate and subject is objectively valid; it must be expressed in the present, past or
future tense.’
That is incorrect. The ‘relation to time’ is asserted in the content of the judgment.
It is the time of the asserted fact, not the time of the truth (which is the validity of the
statement). The fact that the sun, the moon, and the earth are aligned in a certain way
at a certain point in time (i.e. a fraction of a second) is true not only at moment ‘t’ (i.e.
that fraction of a second), but also beforehand and afterwards, whether an
astronomer predicts it as a future event long before moment ‘t’ or asserts it as a past
event long after moment ‘t’. The expression ‘A judgment is valid for a specific time’ is
ambiguous. It can mean: a judgment asserts a fact which exists only for a certain time.
Or: the judgment is true only for a certain time. But the second signification is out of
the question.
346 Note 110

Note 110

Proceeding on the erroneous assumption that ‘validity’ is a property of a norm just as

‘truth’ is a property of a statement, Schreiber believes it possible to bring both terms
within the genus ‘validity of a sentence’. He says: ‘But legal norms cannot be assessed
with the same values as indicative sentences, namely “true” and “false” ’ (1962: 63).
Legal norms—i.e. what Schreiber calls ‘normative sentences’——d0 not have the
properties ‘true’ or ‘false’ (like indicative sentences) but the properties of being ‘law’
or ‘not law’:
Thus we cannot construct the semantic system of the language of law according to the same
schema as the sciences of reality, since we cannot manage with valuations in terms of ‘true’ and
‘false’. We must assess in addition whether a certain category of sentences within the language
of law have legal validity. This category includes legal norms [by this term Schreiber
understands general legal norms] and judicial decisions [individual legal norms]. We will use the
term ‘being law’ to refer to the property ‘legally valid’. The value ‘being law’ thus corresponds
to the parallel value ‘true’. In order to be able to say that the value ‘being law’ or ‘true’ is
assigned to any sentence whatsoever of legal language, we will say that the sentence is valid.
‘Valid’ is thus the genus for ‘being law’ and ‘true’.
If the value ‘being law’ corresponds to the parallel value ‘true’, then to the value ‘false’
there must correspond a parallel value ‘not being law’. On p. 78, Schreiber says that
normative sentences are assessed as ‘being law’ and ‘not being law’. Thus, just as there
are true statements and false statements, there must also be legal norms which are ‘law’
and others which are ‘not law’. A legal norm which is ‘not law’, i.e. which is not valid, is
an impossibility. For a legal norm which is not valid is not a legal norm: it does not exist.
For unlike being—true, being-law (i.e. being-valid) is not a property of the legal norm,
but its existence.
misleading. For if we say that a true sentence is valid, the term ‘valid’ does not have
the same meaning as in the statement that a sentence which ‘is law’ is valid. For a
sentence to be ‘law’ means that it is a legal norm. Schreiber says that the category
‘being legally valid’—denoted by the term ‘being law’—‘includes legal norms and
judicial decisions’: but it should not be forgotten that judicial decisions are legal
norms. If we say that a sentence which is ‘law’——i.e. which is a legal norm—is valid,
the term ‘valid’ means that the sentence exists as binding or as a binding norm.
Even though Schreiber thinks he can draw a distinction between sentences which
are ‘logically true’ and sentences which are ‘logically law’, he does not give any
definition of the concept of being logically law; but such a term can only mean that a
sentence is ‘law’ from the point of view of logic. This is contrary to the well—nigh
obvious proposition that a sentence can be ‘law’ only in virtue of the law, i.e. of a
positive legal order. The examples Schreiber advances in support of his claim clearly
show this.
On p. 65, he gives the example of a legal order containing both of the following
sentences: ‘Murderers are punished with life imprisonment’ and ‘Murderers are
punished with 10 years’ imprisonment.’ Without any further argument, Schreiber
draws the conclusion that the sentence ‘Murderers are punished with life
imprisonment’ is ‘logically not law’. [Translator’s Note: Kelsen misinterprets
Schreiber; Schreiber’s claim»is that it is the conjunction ‘Murderers are punished with
life imprisonment and murderers are not punished with life imprisonment’ which is
‘logically not law’.] This conclusion is. plucked out of thin air. When a positive legal
order contains two norms posited by legal authorities, one of which prescribes life
imprisonment for murder and the other ten years’ imprisonment for murder, they are
both ‘law’, i.e. they are both valid, and they constitute a conflict of norms. Logic is in
no way competent to reject the validity—or the being—law—of either norm. Nor can
 Notes 110—111 347

legal science do anything other than take note of the conflict of norms. When law—
applying organs have to decide a case of murder, they may apply either of the two
conflicting norms, or they may apply neither and decide the case as they see fit.
The second example Schreiber gives is of a ‘sentence which is logically law’.
Someone asserts ‘the legal norm “It is law that authors of dissertations on legal logic
are either failed or they are not failed” ’. Schreiber assumes that University law does
not contain such a norm. Nevertheless, he draws the conclusion that the sentence is
‘law’. ‘The norm of the asserted kind . . . exists’ (p. 66). According to Schreiber, the
sentence in question is one which is ‘logically law’. But it is neither logically law nor
legally ‘law’: it is an invention of the person asserting it. If the sentence were ‘law’,
then a legal order would contain an infinite number of legal norms. For there can be
an infinite number of sentences of this sort, which do not exist in a positive legal
order and do not conflict with any legal norm existing within it.
Lothar Philipps makes the following comment about Schreiber’s claim that the
sentence ‘Authors of dissertations on legal logic are either failed or they are not
failed’ is logically law, is a legal norm in and of itself: the regulations of things by
positive law
are not law in themselves and a priori, but only in so far as they have been posited as law by
legislators. A sentence is law because it can be derived from a positive enactment, and the
assumption that something which cannot be traced back to an enactment nevertheless could be
in itself either law or not law is nonsense, as long as we remain within the domain of positive
law. (1964: 319)

Note 111

In a controversy with Sigwart, Husserl says: ‘It is, says Sigwart, “a fiction . . . that a
judgement could be true if we abstract from the fact that some intelligence thinks
such a judgement” . . . The judgement expressed in the formula of gravitation was not
true before the time of Newton, which makes it, strictly speaking, a self-
contradictory and wholly false utterance’ (1970: 148). Husserl insists: ‘Truth,
however, is “eternal”, or, better put, it is an Idea, and so beyond time.’
This is Sigwart’s reply: ‘Clearly, the motion of the planets agreed with the law of
gravitation long before Newton; but before Newton put forth his theory [which
Husserl only considers to be a probable hypothesis anyway] there was no true
sentence on the subject available to human cognition. Today of course the sentence is
valid for the past, in virtue of its content’ (1924: i. 23).
The claim that there ‘was no true sentence on the subject’ before Newton
formulated the law of gravity refers to the existence of an act of stating. But its
existence—unlike that of an act of positing a norm—is in no way a condition for the
‘Validity’ of the statement, if the ‘validity’ of a statement means its truth. Before
Newton made his statement about gravity, it could not be judged to be true or false
by other people, but it was already true before he made it. Sigwart admits that
Newton’s statement about gravity was true before the act of making it when he says
that ‘today’—i.e. after Newton put it forth—it ‘is valid for the past’. But Newton’s
statement is not issued with retroactive effect—as a norm is—but expresses a truth
which already existed before the moment in time when it was made. The important
point is that the truth of Newton’s statement is not conditional upon the act of
making the statement as the validity of a norm is conditional upon the act of positing
the norm. Sigwart fails to see this, since he says of both statements and norms that
they are ‘valid’. '
348 Notes 112—114

PJotellZ

Gottlieb Sbhngen claims there is an analogy between the relation of material truth to
the formal correctness of thought and the relation of material justice to formal
legality, and so calls justice the ‘truth’ of law and positive legality ‘juristic
correctness’ (1962: 22 ff.). But there is no such analogy. For formal-logical truth or
correctness presupposes material truth in a totally essential manner, while positive
legality does not presuppose justice at all. Logic says: if a statement is materially true,
then a statement which contradicts it is false. And: if both premisses of a syllogism
are materially true, then the conclusion is true. The relation to material truth is
immanent in formal-logical truth. But the relation to justice is in no way immanent in
the statement about the positive legality of something. The execution of a murderer
condemned to death is legal if positive law prescribes the death penalty for murder,
independently of whether it is just or unjust This independence with respect to
justice is an essential feature of the positivity of law.
There can be no question of a "truth of law. For law, even just law, is norm, and—
as norm—can be neither true nor false. Truth is a property of a statement and a
statement is the meaning of an act of thought. Justice is a property of a norm and a
norm is the meaning of an act of will. Thought and will are two totally different
mental functions. But in God, that is, within a realm which lies beyond all human
experience and so beyond human logic, it is possible that those who believe in such a
realm may assume that thought and will coincide (as is expressed in the myth of the
tree of knowledge). By knowing what is good and evil, God wills that the good ought
to be and the evil ought not to be. In God truth and justice are one. When Séhngen
says ‘God’s truth is His active justice’ (p.42), he asserts something which eludes
rational discussion subject to the principles of logic. But when he adds: ‘The justice
of man is our active truth’, he is speaking nonsense.

Note 113

The—previously mentioned—view that logic has a normative character 1s neverthe-

less widespread. A typical example 1s Friedrich Uberweg: ‘Logic 1s the science of the
normative laws. . .of human cognition’ (1857. 1). And on p. 6: ‘Logic 1s a technical
science . . . essentially by the very fact that it puts forth the normative laws
themselves, since scientific awareness of them demands faithfulness in their practical
observance.’
And Sigwart says that logic means to be ‘not the Physics but the Ethics of
Thought’, and in this sense has a ‘regulative character’ (1895: i. 20). Logic is also,
according to Sigwart, a ‘technical science of thought’.
Similarly, August Messer calls ethics and logic ‘sciences of norms’ (1927: 163), by
which he means sciences which ‘put forth norms’.
Rose Rand also considers logic to be normative, i.e. norm-positing: ‘Logic has to
put forth norms about the concepts “concept”, “proposition”, “inference” ’
(1939:308)

Piote114

On the disputed question whether logic is a normative or theoretical discipline, cf.

Husserl (1970: 58 ff.). Husserl himself treats logic as a ‘normative discipline’. He
says: ‘From our discussions up to this point logic—in the sense of the theory of
 Note 114 349

science here 1n question—emerges as a normative disaplme’ (p.70). The existence of

science makes it necessary to have a theory of sc1ence, and that means precisely a
logic (p. 63), for the truth of the sentences of a science must be "grounded . Logic, as a
theory of science, provides this grounding. For the fact ‘that we need grounded
validations . . . not only makes the sciences possible and necessary, but also with these
also a theory ofscience, a logic. All sciences proceed methodically in the pursuit of truth,
employ more or less artificial aids in order to bring to knowledge truths or probabilities
that would otherwise remain hidden . . .’ The point is ‘to set up general norms for such
procedures [of the sciences in pursuit of truth] and likewise rules for their inventive
construction in various classes of cases’ (p. 63). Such is according to Husserl the function
of a logic as a theory of science—or so we must assume from the foregoing—and this
function consists in setting up norms and rules. Later (p. 71) we read: logic ‘shows’ itself
to be a ‘normative science’ in that it seeks ~to search into ‘what constitutes the Idea of
science, so as to be able to use the latter to measure the empirically given sciences as to
their agreement with their Idea, the degree to which they approach it, and where they
offend against it’. According to what Husserl said earlier, this Idea of Science can only
be truth. For Husserl says that it is ‘of the essence of a normative science . . . that it
establishes general propositions in which, with an eye to a normative standard, an Idea
or highest goal, certain features are mentioned whose possession guarantees conformity
to that standard, or sets forth an indispensable condition of the latter’. By conformity to
that (basic) standard, Husserl understands: ‘what an object should be to conform to its
basic norm’ (p. 71); and about the basic norm we later read that it ‘imports the thought
of normativity into all [the] normative propositions [of a normative discipline]’ (p. 87). If
I understand Husserl correctly, ethics as a normative science grounds the general
proposition ‘If a human being loves his enemy, then his behaviour conforms to the norm
“Human beings are to love their enemies.” ’ The feature ‘loving one’s enemy’ is
mentioned in this proposition. The possession of this feature guarantees the conformity
of human behaviour to the norm. The general proposition which ethics as a science
‘grounds’ is a statement about the relation of an actual behaviour to a norm presupposed
to be valid. This statement is a value—judgment. That which ‘grounds’ this general
proposition (representing a value-judgment) is the norm ‘Human beings are to love their
enemies.’
Logic as a normative science ‘widens out’ into a ‘technology’ [Kunstle/ore] when it
sets itself the task of ‘draw[ing] up rules for our procedure in the methodical tracking
down of truth’. Logic as ‘technology’ includes logic as ‘the whole normative theory
of science’. Hence it is appropriate to define logic as a ‘technology’ (p. 72).
By a Kunstle/ore, Husserl appears to understand a Technologie. [Translator’s Note:
Husserl uses two terms, Kunstle/ore and Technologie, both of which are rendered as
‘technology’ by his translator.] On p. 80, he says: Considering that
technologies are . . . connected . . . with the abstract theoretical natural sciences, physical
technologies with physics, chemical technologies with chemistry, this readily suggests the View
that it is the true sense of our supposed pure logic to be an abstract theoretical discipline
providing a basis for a technology just as the previously mentioned disciplines do, its
technology being logic in the ordinary, practical sense.
In other words, it suggests that a purely theoretical logic grounds practical logic as
‘technology’, ‘just as technologies . . . have one main, basic, theoretical discipline
from which their norms [i.e. the norms of the practical discipline, of the technology]
flow’. And on p. 87 we read:
A technology represents a particular case of a normative discipline which arises when the basic
norm consists in achieving a universal practical aim. Plainly, therefore, every technology
includes in itself an entire normative discipline, which is not itself a practical discipline. For its
task presupposes that, altogether apart from everything relating to practical attainment, the
350 Note 114

narrower task of fixing norms has first been carried out, norms by which we can assess the
adequacy to the general notion of the end to be achieved, or the possession of the properties
characteristic of the class of values in question. Every normative discipline, conversely, whose
fundamental valuation is transformed into a corresponding teleological prescription, widens out
into a technology.

The function of an ethic or a logic as a ‘technology’ is therefore to specify the means

of realizing that which morality or logic decrees to be obligatory as an end, and the
sentences by which it does this appear as sollen-sentences, as norms. For on pp. 71—2,
Husserl says explicitly that ‘the normative discipline by a ready extension of its task
gives rise to a technology’, when the theory of science [as a normative discipline] sets
itself the further task of ‘draw[ing] up rules for our procedure in the methodical
tracking down of truth’. Here we have the previously mentioned mistake of seeing an
ought-relation, a normative relation, in the means—end relation, when in fact what we
have is not an Ought but a Must. A technology has no normative character. It does
not assert ‘If you want A, you are to B’ but ‘If you want A as effect, you must realize
B as means.’
If practical logic decrees an Ought (i.e. norms)——as Husserl supposes—it cannot
be a technology. Husserl certainly insists on the normative character of logic as a
theory of science, but he asserts that this normative logic rests on a theoretical
discipline which is ‘the true sense of our supposed pure logic’ (p. 80). On pp. 81—2 he
says ‘that every normative and likewise every practical discipline rests on one or
more theoretical disciplines, inasmuch as its rules must have a theoretical content
separable from the notion of normativity (of the “shall” or “should”), whose
scientific investigation is the duty of these theoretical disciplines’. And on p. 87:
It is now easy to see that each normative, and, afortiori, each practical discipline, presupposes
one or more theoretical disciplines as its foundations, in the sense, namely, that it must have a
theoretical content free from all normativity, which as such has its natural location in certain
theoretical sciences, whether these are already marked off or yet to be constituted.
Husserl argues that every normative discipline ‘presupposes’, or has as its
‘foundation’, a theoretical discipline, by trying to show that the norms of a normative
discipline have a particular content different from the theoretical: ‘Every normative
proposition of, e.g., the form “An A should be a B” implies the theoretical
proposition “Only an A which is a B has the properties C”, in which “C” serves to
indicate the constitutive content of the standard-setting predicate “good” ’ (pp. 87—8).
This is incorrect: cf. Endnote 49 above. On p. 82, Husserl already gave as a concrete
example the norm ‘A soldier should be brave’, and as the theoretical sentence
contained in this norm the sentence ‘Only a brave soldier is a good soldier.’ This
sentence is a value—judgment, and Husserl explicitly calls it that: ‘Since this value—
judgment holds, everyone is entitled to demand of a soldier that he should be brave.’
By this sentence, Husserl asserts that the demand or norm ‘A soldier is to be brave’ is
founded on the theoretical sentence, i.e. the value—judgment, ‘Only a brave soldier is
a good soldier.’ If the theoretical sentence, the value—judgment, is contained in the
norm (as Husserl states), it cannot found the norm, since it is given with the norm.
Also, the norm ‘A soldier is to be brave’ does not presuppose the value—judgment
‘Only a brave soldier is a good soldier.’ It is the other way round: the value-judgment
‘Only a brave soldier is a good soldier’ presupposes the validity of the norm ‘A
soldier is to be brave.’ For the value-judgment which qualifies a behaviour as ‘good’
does nothing other than state that it agrees with a norm presupposed to be valid.
Admittedly, the value-judgment does not ‘contain’ any dimension of normativity,
but it is essentially related to normativity. Without the presupposition of the norm
‘A soldier is to be brave’ the value-judgment ‘Only a brave soldier is a good soldier’ is
impossible. If we can Speak of any ‘foundation’ in connection with the relation
 Notes 114—115 351

between the norm and the value--judgment, it is the norm which founds the value-
judgment. If we assume that value-judgments form a particular theoretical science (or
sciences), then the theoretical sciences are not the foundation of a normative science.
It 1s the other way round: and it is not normative sciences but systems of norms,
normative orders such as morality and law, which form the foundation of value—
judgments or of disciplines whose sentences are value-judgments.

Note 115

The question whether Kant considers the principles of logic to be norms

(prescriptions) for thinking or to be theoretical statements—in other words, whether
he considers logic to be a so--called ‘practical’ discipline or a theoretical discipline—
can hardly be answered, since there 1s evidence for both conceptions in his writings.
In his Logic (published on his instructions by Jasche), Kant defines logic as the
‘science of the necessary laws of the understanding and reason in general’ (p. 15). It is
clear from earlier passages that Kant understands these ‘laws’ to be ‘rules’. The book
begins with the words:
Everything in nature, in the inanimate as well as the animate world, happens accordingpto rules,
although we do not always know these rules. Water falls according to the laws of gravity, and
the locomotion of animals also takes place according to rules. The fish in the water, the bird in
the air move according to rules. All nature actually is nothing but a nexus of appearances
according to rules; and there is nothing at all without rules. When we believe that we have come
across an absence of rules, we can only say that the rules are unknown to us. (p. 13)
The ‘rules’ of which Kant is speaking are clearly laws of nature, according to which
everything occurs and must occur, and against which nothing can happen, and not
rules which which behaviour ought to agree, and so can agree or fail to agree. When
Kant says later (p. 13) ‘Like all our powers, the understanding in particular is bound
in its acts to rules we can investigate’, these rules which we can investigate (i.e. which
our understanding can investigate) must be understood as is-rules, that is, rules
according to which our understanding actually functions—i.e. thinks—and must
function, and not norms for thinking, which the understanding may agree with or fail
to agree with. Further evidence for this is the fact that Kant continues. ‘I,ndeed the
understanding 1s to be regarded as the source and faculty of thinking rules generatim
It therefore 1s avid to seek rules, and satisfied when 1t has found them’ (p. 13). If the
understanding ‘thinks’ these rules, if it ‘seeks’ them and ‘finds’ them, this can only
mean that these rules are an object given to the thinking understanding, just as the
facts of nature are given to the thinking understanding, and not created by it. On
p. 20, where he speaks of the distinction between ‘natural or popular’ and ‘formal or
scientific logic’, Kant says: ‘Therefore, the formal or scientific logic alone deserves
this name [of logic], as a science of the necessary and universal rules of thinking
which can and must be cognized a priori independently of the natural use of the
understanding and of reason in concreto, although they can be found at first only by
observing that natural use.’ But immediately after saying that the understanding
‘seeks’ and ‘finds’ the rules for thinking, he says: ‘The question then is, since the
understanding is the source of rules, according to what rules does it proceed itself?’
(pp. 13—14). If the understanding is the ‘source’ of the rules, this means that it creates
the rules itself, and therefore that it does not ‘seek’ and ‘find’ them as something
external to itself. It is clear from Kant’s account that reason which cognizes the laws
of thought issues these rules itself, and consequently functions not only as a moral
authority with respect to behaviour, but also as a scientific authority with respect to
thought, i.e. as legislative, practical reason. Kant therefore also says: ‘Logic is
352 Note 115

therefore a self—cognition of the understanding and of reason . . . In logic the question

is only: How will the understanding cognize itself?’ (pp. 16—17).
The following sentence says that these rules of thought, posited and cognized by
reason (i.e. by thought), are laws of thought according to which reason actually
proceeds, must proceed, and cannot proceed otherwise:
For there cannot be any doubt; We cannot think or use our understanding otherwise than
according to certain rules . . . All rules according to which the understanding proceeds are either
necessary or contingent. The former are those without which no use of the understanding
would be possible at all; the latter are those without which a certain use of the understanding
would not take place. (p. 14)
And further on Kant says that these rules are ‘necessary throughout’, because
‘without them we could not think at all’. Therefore there is no thinking which does
not proceed according to these rules. It is in this sense that Kant gives the definition
of logic already quoted: ‘the science of the necessary laws of the understanding and
reason in general . . . As a science of the necessary laws of thinking without which no
use of the understanding and of reason takes place at all’ (pp. 15—16). But Kant adds:
‘. . . which consequently are the conditions under which alone the understanding can
and shall agree with itself—the necessary laws and conditions of its rig/9t use’ (p. 16;
stress added). But there can be a ‘right’ use of reason only if there can also be an
incorrect use of reason. Since ‘right’ is a value—judgment and a value is instituted only
by a norm, and since a ‘right’ use of reason simply means that it is as it ought to be
according to a norm, the ‘rules’ or ‘laws’ for thinking must be norms with which
thinking ought to agree, but may or may not agree, i.e. there may be correct and
incorrect thinking. Further on, Kant declares: ‘In logic . . . the question is . . . not
how we think, but how we ought to think . . . In logic we do not want to know how
the understanding is and thinks, and how it hitherto has proceeded in thinking, but
how it ought to proceed in thinking. Logic shall teach us the right use of the
understanding, i.e. the one which agrees with itself’ (p. 16). And on p. 18: ‘Logic is . . .
a science, therefore, of the right use of the understanding and of reason as such, not
subjectively, i.e. not according to empirical (psychological) principles of how the
understanding thinks, but objectively, i.e. according to a priori principles of how it
ought to think.’ Consequently, the principles of logic are norms, and logic is a
practical and not a theoretical discipline. And so we read on pp. 116—17: ‘Logic has to
treat of practical propositions only in so far as their form is opposed to theoretical
propositions. Practical propositions as to content, and thus as distinguished from
speculative ones, belong to morality.’ Logic is practical just like morality. The former
differs from the latter in that it is concerned with the form, while morality is
determined as to content.
But on p. 19, where Kant speaks of the division of logic into Analytic and
Dialectic, he says: ‘If one wanted to use this merely theoretical and universal doctrine
[i.e. the analytic] as a practical art, i.e. as an organon, it would become a dialectic, a
logic of semblance (ars sophistica, disputatoria) which springs from a mere abuse of
the analytic.’ But further on, we read:
We would then have two parts of logic: the analytic, containing the formal criteria of truth, and
the dialectic, containing the characteristics and rules by which we can tell that something does
not agree with the formal criteria of truth, although it seems to. Dialectic in this sense would
then have its good use as a cathartic of the understanding. (p. 19)

If dialectic as a part of logic can tell that something does not agree with the formal
criteria of truth, it is a practical art. But on p. 20, where he speaks of the division of
logic into ‘theoretical and practical logic’, he says: ‘This division . . . is . . . incorrect.
General logic, as a mere canon abstracting from all objects, can have no practical part.
 Note 115 353

This would be a contradictio in adjecto, because a practical logic presupposes

knowledge of a certain kind of objects to which one applies it.’ But speaking of the
‘practical logic’ which he opposes to ‘pure logic’, he says: ‘Applied logic actually
should not be called logic. It is a psychology in which we contemplate how things
usually work in our thinking, not how they are to work’ (p. 21). From this it could
follow that in pure logic we consider how things ought to work in our thinking. But
just before, we read: ‘In pure logic we segregate the understanding from the other
powers of the mind and contemplate what it does by itself.’ But that clearly means
how the understanding actually proceeds, and not how it ought to proceed. ‘Applied
logic contemplates the understanding so far as it is intermingled with other powers of
the mind that influence its acts and slant it in some direction, so that it does not
proceed according to the laws which its own insight knows are the right ones.’ If
applied logic considers thinking according to whether it is ‘slanted’ or ‘right’, it must
evaluate thought according to norms, and therefore according to whether it is or not
as it ought to be.
On p. 18 we read about logic in general: ‘Logic therefore is more than mere
criticism; it is a canon that afterwards serves criticism, i.e. serves as the principle of
judging all use of the understanding as such, although only as to its rightness in
respect of mere form . . .’. In the Critique ofPure Reason (B 824) Kant calls a ‘canon’
‘the sum-total of the a priori principles of the correct employment of certain faculties
of knowledge’. As a ‘canon’ for ‘critique’, i.e. for ‘evaluation’, logic must have a
normative character. In the Foundations of the Metaphysics of Morals (iv. 424), Kant
says that the ‘canon of moral estimation’ is ‘We must be able to will that a maxim of
our action become a universal law’, i.e. that it ought to become such, or as Kant says,
‘that one could will that it should be such’ [i.e. a universal law of nature]. And on
pp. 22—3 of the Logic Kant says:
From what we have said so far about the essence and the purpose of logic, the value of this
science and the usefulness of its study may now be gauged by a correct and definite standard.
Logic . . . is . . . useful and indispensable as a critique of cognition, or for judging common as
well as speculative reason, not in order to teach it, but to make it correct and agreeing with itself.
If the nature and purpose of logic is to make common and speculative reason
‘correct’, then it is difficult to understand how logic does not ‘teach’ how to do so.
But there certainly can be no doubt that logic, as common and speculative reason, can
make thinking ‘correct’ only by making it agree with certain prescriptions for
thinking. And so Kant also states here: ‘For the logical principle of truth is agreement
of the understanding with its own general laws’, and these laws can only be norms
with which the understanding (i.e. thought) can agree (i.e. be correct) or fail to agree
(i.e. be incorrect).
Thus no unambiguous answer can be gained from Kant’s Logic about the question
whether the principles of logic are.norms or theoretical statements. Nevertheless, the
View that logic has a normative character seems to predominate. But the Logic was
not published by Kant himself, and therefore is perhaps not a completely authentic
document. Hence, in order to answer the question about the nature of logical
principles, we must consult Kant’s other works.
The first to be considered is the Nachricht von der Einrichtung seiner Vorlesungen
in dem Winterhalhjahre von 1765—66 (ii. 305 ff.). This is what it says about logic:
‘There are really two forms of this science. The first is a critique and prescription of
the healthy understanding . . . the second form of logic is the critique and
prescription of genuine scholarship . . . ’ Thus in all cases logic is a ‘prescription’, and
its principles are norms. And in the Handschriftlicher Nachlafl we read: ‘Logic is a
science of reason, according to both its matter and its form. With respect to the latter,
as a canon of'reason, its principles are solely a priori and not empirical, and so not
354 Note 115

borrowed from psychology. It is abstracted, but not derived, from the empirical use
of the understanding. This is theoretical logic’ (xvi. 36). Consequently, even though
it is a ‘canon’ of reason, it is nevertheless a theoretical science. In the next sentence,
we read that it contains ‘not subjective laws—how one thinks—but objective laws—
how one ought to think’.
In the Critique ofPure Reason, where one might expect to find a thorough inquiry
into the nature of logic, such an inquiry plays a relatively subordinate role.
Admittedly, Kant says in the second chapter of ‘The Transcendental Doctrine of
Method’: ‘It is humiliating to human reason that it achieves nothing in its pure
employment, and indeed stands in need of a discipline to check its extravagances, and
to guard it against the deceptions which arise therefrom’ (B 823). This can only refer
to logic, of which it is also said further on that general logic ‘in its analytic portion, is
a canon for understanding and reason in general; but only in regard to their form; it
abstracts from all content’. As ‘a canon for reason’, logic should hold pride of place in
a critique of reason. But that is not the case in Kant’s work. If the function of logic is
‘to check [the] extravagances [of reason] and to guard it against the deceptions which
arise therefrom’, its principles have to be prescriptions. In the Preface to the second
edition (B ix), he says that logic ‘as a propaedeutic, forms, as it were, only the
vestibule of the sciences’, and that ‘when we are concerned with specific modes of
knowledge, . . . logic is . . . presupposed in any critical estimate of them’. But an
estimate presupposes norms which serve as the standard for the estimate. But Kant
does not say this. On p. 84, he speaks of ‘principles of all logical criticism of our
knowledge’, and he says of the part of logic which he calls ‘Analytic’ that it is ‘at least
the negative touchstone of truth. Its rules must be applied in the examination and
appraising of the forms of all knowledge’, something which is possible only if its
rules are norms. But even in this context the question as to the nature of these rules
does not arise. Even in the chapter concerning ‘Logic in general’ (B 74 ff.) there is no
mention of it. Here Kant distinguishes between a logic of the general use and of the
special use of the understanding.
The former contains the absolutely necessary rules of thought without which there can be no
employment whatsoever of the understanding. It therefore treats of understanding without any
regard to difference in the objects to which the understanding may be directed. The logic of the
special employment of the understanding contains the rules of correct thinking as regards a
certain kind of objects.
That there are rules for ‘correct’ thinking, Kant says so explicitly only with reference
to the rules which make up the logic of the special employment of the understanding.
What he says about the rules of the general employment of the understanding
means—taken literally—that they are is-rules, rules according to which the
employment of the understanding (i.e. of thinking) actually takes place, and not rules
prescribing how the understanding ought to be employed
Further on (B 77), he divides ‘general logic’ into ‘pure’ and ‘applied logic’ and says
that‘pure general logic has to do. . .only with principles a priori, and 1s a canon of
understanding and of reason’ . Of applied logic, which has ‘empirical principles’, he
says that ‘it is neither a canon of the understanding in general nor an organon of
special sciences, but merely a cathartic of the common understanding.’ If we
understand by a ‘canon’, principles ‘of the correct employment of certain faculties of
knowledge’ —as Kant says on p. 824—and if we assume that principles of correct
employment are prescriptions or presuppose prescriptions, then pure general logic
has a normative character, but not applied general logic, since it is not ‘a canon of the
understanding in general’ . But if 1t is a c‘athartic’ , i.e. a principle of purification of the
common understanding, it must contain (or presuppose) and apply prescriptions for
thinking. But even that can only be presumed, and not asserted as Kant’s doctrine.
 Notes 115—116 355

Evidence for our assumption is the fact that Kant considers the relation between pure
general logic and applied general logic to be the same as the relation between ‘pure
ethics, which contains only the necessary moral laws of a free will in general’ and ‘the
doctrine of the virtues strictly so called—the doctrine which considers these laws
under the limitations of the feelings, inclinations, and passions to which men are
more or less subject’ (B 79). For both pure morality and the doctrine of the virtues
have a normative character, contain norms and apply norms. Further evidence of the
normative character of general logic is Kant’s declaration that ‘logic, in so far as it
expounds the universal and necessary rules of the understanding, must in these rules
furnish criteria of truth. Whatever contradicts these rules is false. For the
understanding would thereby be made to contradict its own general rules of thought,
and so to contradict itself’ (B 84). And further on, Kant says of the part of general
logic which he calls ‘Analytic’ that it exhibits ‘principles of all logical criticism of our
knowledge’ and that it ‘is at least the negative touchstone of truth’ since ‘its rules
must be applied in the examination and appraising of the forms of all knowledge’.
But this is possible only if the rules are norms for correct thinking. In the only part of
the book where the nature of the rules is discussed, the chapter ‘On Transcendental
Judgment in General’, Kant says: ‘General logic contains, and can contain, no rules
for judgment’ (B 171). But on p. 174, he says: ‘But although general logic can supply
no rules for judgment, the situation is entirely different in transcendental logic. The
latter would seem to have as its peculiar task the correcting and securing of judgment,
by means of determinate rules, in the use of the pure understanding.’ Thus we see
that even the Critique of Pure Reason does not give an unambiguous answer to the
question whether the principles of logic are norms or theoretical statements.

Note 116

A typical example of the interpretation of truth as a value, and indeed as a theoretical

and logical value (as opposed to a practical or moral value) is to be found in Bruno
Bauch (1923). Bauch defines the concept of value with the help of the concept of a
‘task’. He says: ‘There does not appear to be a better or clearer way of characterizing
value, in its difference from the factual, the actual, the given, and at the same time in
its positive proper signification, than by the peculiarity of being a task, of being
assigned [aufgegeben] as opposed to—and also as related to—being given [gegeben]’
(p. 469). And on p. 471: Value is a task ‘in so far as a subject can and ought to direct
himself according to it . . . ’. By ‘task’, Bauch means that something ought to be or to
occur. He says that we speak of ‘tasks’ in the ‘practical realm’, that ‘every person
speaks of duties or moral requirements, moral tasks . . . Here we are all accustomed
to speaking of an Ought . . . Every day and every hour, the “you ought” or duty
speak to us, to our will, in our concrete life’ (p. 470). Thus for something to be a
‘task’ means that something is required, that there is a valid norm prescribing that
something is to be or is to occur. Bauch emphasizes the subject-relative nature of
tasks: ‘But every task . . . always has the meaning that it is assigned to a subject, that it
is a task for a subject’ (p. 210). But if a ‘task’ is a ‘requirement’, it must be subject-
relative not only in the sense that it is given to a subject, but also in the sense that it is
given by a subject. Otherwise, we would have a requirement without a requirer, a
norm without a norm—positing authority. A ‘task’ is not only addressed to a will, but
also issues from a will and is the meaning of an act of will, of the act which assigns the
task. The meaning of this act of will is the Ought of the task. But Bauch ignores this
side of the ‘subject-relative nature’ of a task. If a ‘task’ is a requirement or norm, then
value cannot be a task but only the relation of something real to a task, i.e. to a norm.
356 Note 116

For something real to be valuable or disvaluable, to have value or disvalue, can only
mean that it is or is not in accordance with the task, or—and this amounts to the
same thing—that it agrees or does not agree with a norm. The value is not the task,
but is instituted by the task.
Since Bauch wrongly defines value as a task, that is, identifies value with the norm
which institutes it, he thinks it possible also to define truth as a value by defining
truth as a ‘task’. He says: ‘Truth stands to science as a task, in so far as its goal is
justified knowledge. It is indeed the task of all thought directed to knowledge. To
that extent, truth’s character as a task can precisely illuminate its character as a value’
(p. 472). The first thing to be said about this is that, according to what Bauch said
earlier, a‘task is directed to a will and not to thought. One could only speak of the task
of willing to think the truth. But to whom and by whom is this task given? Bauch
does not give any clear answer to this question. He says: ‘It is in science that truth’s
character as a task is made clearest to us: genuine and strict science wants to know the
truth and nothing but the truth’ (p. 475). But science does not ‘want’ anything,
science is cognition and not will, and truth is not the object of knowledge but a
property of knowledge, a property it has when it agrees with its object. There is no
‘task’, i.e. norm, prescribing that statements are to be true. Neither science nor logic
as a science posits such a norm or lays down such a task. But there is a norm which
prescribes that people are only to make true statements, that they are not to lie. This
is a norm of morality. But the value instituted by this norm is not truth but
truthfulness. Truth is the property of a statement, i.e. of the meaning of an act of
thought, and consists in the fact that the statement agrees with the object to which it
refers, that its object is as the statement says it is. The truth of a statement does not
consist in the fact that the statement agrees with some norm or task addressed to the
person making the statement (addressed to his will). The truth of a statement is
independent of the will of the person making the statement. But truthfulness is a
property of human behaviour, of human acts whose meanings are statements which
are true; and truthfulness consists in the fact that this behaviour agrees with a moral
norm addressed to this person’s willing. Truthfulness depends on the will of the
person making statements. As is so often the case, Bauch confuses truth with
truthfulness, which is admittedly a value, the value of behaviour which agrees with a
moral norm.
Bauch interprets the Kantian primacy of practical reason as ‘the primacy of ethical
value over truth-value’ (pp. 478 ff.):
‘The basic law of pure practical reason’ in which ethical value expresses itself must relate to
action as such and in general without highlighting any particular act, precisely in order to be
able to be the standard for every particular and definite act. . . . In particular, ethical value,
because it can relate to every action, must be able to include the other values in itself and itself in
them.
Bauch assumes that ‘the primacy of practical reason’ is to be understood ‘in the sense
of the general all-encompassing nature of practical value, whose species are the other
values, and therefore also theoretical value [i.e. truth]’ (p. 480). ‘Truth-value’, says
Bauch (p. 479), ‘cannot present itself in every action, but only in those actions which
we call theoretical, thus in thought or more precisely in cognition. For that reason,
the domain of theoretical value is narrower than that of ethical value.’ But since
ethical value includes theoretical value in itself, since ethical value encompasses all
values as species (and so also theoretical value), theoretical value—so-called truth—
value—must therefore be included in ethical value, and so also be an ethical value.
But that means that truth as a value is demanded by the will characterized as practical
reason, the moral legislator, and not by theoretical reason, which is pure cognition
and not will. This demand of practical reason is therefore a moral demand, for
 Notes 116—118 357

practical reason is the moral legislator, according to Kant. The value instituted by a
moral demand can only be a moral value. Since only actions can be demanded by
practical reason, this value can only be the property of actions, the value of acts of
human behaviour, of acts of thought, and not the property of the meaning of these
acts of thought, of that which is thought, of the statement which is the meaning of the
act of thought. But it is only the statement, and not the act of which it is the meaning,
which can be true, while it is only the act which can agree with the moral demand of
truthfulness. _
Bauch says: ‘Truth-value is therefore certainly not ethical value’ (p. 479). This can
be reconciled with Bauch’s interpretation of the primacy of practical reason only if
truth—value is not identical with ethical value, but is only a special case of ethical
value. The unavoidable consequence of the primacy of practical reason is that truth-
Value—i.e. what Bauch calls truth-value—is an ethical value. Bauch says further ‘The
striving for truth does not have to be moral. But in so far as it is itself an action, it can
nevertheless also be moral’ (p. 479). But how is it possible for the striving after truth
not to be moral when it is demanded by the moral legislator? The actual behaviour of
man which expresses itself in acts whose meanings are statements is not moral if the
person intentionally makes false statements, if he fails to fulfil the moral demand of
truthfulness, if he lies. Interpreting truth as a value rests on the confusion of truth and
truthfulness. A ‘theoretical value’ is a self—contradiction.

Note 117

On the fact that verifiability is limited to statements which can be true, cf. Alfred
Jules Ayer (1949: 9). Ayer distinguishes between two kinds of verification, a ‘strong’
and a ‘weak’ sense of the term ‘verifiable’: ‘a proposition is said to be verifiable in the
strong sense of the term, if and only if its truth could be conclusively established in
experience’;‘ it is verifiable, in the weak sense, if it is possible for experience to render
it probable.’ Thus only sentences which can be true are verifiable.
Jorgen Jorgensen asks: ‘How is a sentence of the form “such and such is to be so
and so” to be verified?’ (1937: 292). That means: How can a statement ‘Such and such
ouglat to be so and so’ be verified? His answer is: ‘Such an action is to [soil] be
performed may be considered an abbreviation of a sentence of the form “there is a
person who is commanding that such action is to be performed”. And sentences of
this form are of course capable of being verified or falsified, and consequently of
having a meaning.’ That is incorrect. The sentence ‘Someone is to behave in a certain
way’ does not have the same signification as the sentence ‘Someone commands that
one is to behave in a certain way.’ If the first sentence is verifiable, it is the description
of a norm, while the second sentence is the description of the act of which the norm is
the meaning. But the first sentence can be verified only by verifying the second
sentence, and so can be verified only indirectly.

Note 118

To the extent that a value is instituted by a norm, it is possible to speak of the

existence or presence of a value just as we speak of the ‘existence’ of a norm. Rickert
states: ‘ . . . with respect to value as value, it makes no sense to ask whether it exists.
One can only ask whether it is “valid” or not, and this question does not coincide
under any circumstance with that of the existence of the value’ (1910: 12). It is true
that the question whether a value—Le. the norm instituting the value—is valid does
358 Notes 118—120

not coincide with the question about the existence of valuation (whatever one
understands by ‘valuation’). But it does make sense to speak of the existence of a
value, if by the existence of a value we understand another kind of existence than that
of the act of valuation. The question ‘Are there absolute values or only relative
values?’ makes perfect sense.

Note 119

The self-contradictory concept of practical reason rests on a failure to distinguish

between a norm and a statement (or judgment), and in particular between a norm and
a statement about a norm. Fred Bon asserts: ‘Thus all attempts to derive an Ought
from reason—whether it be “theoretical” or “practical”——from “rational reflection”
or “logical consistency” etc., instead of from real commands, are characterized by a
confusion between commands and judgments, and thus as enterprises which are
misguided from the very beginning’ (1898: 56). On p.26 he says that the term
‘Autonomy’ is a ‘contradiction in terms’. ‘A Vouog which is not a étépou Vouog
is an absurdity’ (p. 27). ‘In Kant, this error can eventually be excused, because for
him the individual divides into two beings—shouldn’t he be called a DividuaIP—an
empirical being and an intelligible being.’ Bon thinks he can explain the error of
failing to distinguish between commands and judgments in the following way: ‘The
wording of judgments and of commands coincide all the more completely as the
result of the intellectual process directed to reproducing reality coincides more
precisely with the result of the real willing-process which takes place in commanding’
(p.56). That is incorrect. The sollen—sentence which is the answer to the question
‘What ought I to do?’ is not a description of the act of will of which the command or
norm is the meaning, but a description of the command or norm which is the
meaning of the act. The sollen—sentence which is the expression of the command or
norm and the sollen~sentence which is the expression of the statement about the
command or norm have the same wording. Bon does not see the difference between
the act of will (which is an Is) and its meaning, the norm (which is an Ought). Hence
he falls into the following contradiction: he rightly calls ethics the ‘science of norms’
or ‘normics’ (p. 34), but in an earlier work (1896) he charaCterizes ethics as a science
of that which Is because it seeks to understand ‘morality as existing’, and so he
understands scientific ethics as psychology. He draws a distinction between this
‘scientific’ ethics and ‘technical’ ethics and says that the relation between them is the
same as that between natural science and technology. Technology is the application
of the knowledge of causal relations (Is-relations) in the representation of means—end
relations. But two years later (1898), he admits that the means—end relation has no
normative character. And so it follows that ethics cannot be technical in the sense of
an application of a science of that which Is.

Note 120

Hence R. M. Hare is mistaken when he says of ‘questions of the form “What shall I
do?” ’ that ‘the answer is a prescription’ (1964: 79).
P. T. Geach says (1958: 49) that there are only two answers to the question ‘Am I
to do PP’: ‘Do P’ and ‘Do not do P’, thus two imperatives.
Bon rightly says that the answer to the question ‘What ought I to do?’ is ‘You
ought to do what is commanded to you by another’ (1898: 26), and states that this
sentence is nothing other ‘than a declarative judgment’ (p. 24).
 Notes 121—122 359

Note 121

Rudolf Carnap: ‘But actually a value statement is nothing else than a command in a
misleading form . . . it is neither true nor false’ (1935: 24 f.). This is not true of value—
judgments which assert, purely cognitively, the positive or negative relation of a
behaviour to a norm concerning this behaviour. It is true only of valuations which
express an emotional approval or disapproval of a behaviour.
Alfred Jules Ayer says: ‘If I say to someone “you acted wrongly in stealing that
money” I am not stating anything more than if I had simply said: “you stole that
money”. In adding that this action is wrong, I am not making any further statement
about it. I am simply evincing my moral disapproval of it’ (1949: 107). That is
incorrect. The sentence ‘You acted wrongly in stealing this money’ can mean ‘Theft
of this money is contrary to the norm “One is not to steal” ’, and thus asserts a
relation of theft to a presupposed norm. And if it merely expresses my disapproval, it
means something other than the statement ‘You stole this money.’ Ayer says:
If . . . I . . . say . . . ‘stealing money is wrong’, I produce a sentence which has no factual
meaning—that is, expresses no proposition which can be either true or false. It is as if I had
written ‘Stealing money! !’—where the shape and thickness of the exclamation marks show, by a
suitable convention, that a special sort of moral disapproval is the feeling which is being
expressed. It is clear that there is nothing said here which can be true or false . . . In saying that a
certain type of action is right or wrong, I am not making any factual statement, not even a
statement about my own state of mind. I am merely expressing certain moral sentiments.

But, as was indicated, the sentence ‘Stealing money is wrong’ can also mean—and
usually means—‘Stealing money is contrary to the valid norm “One is not to steal.” ’
Then the sentence is true if such a norm is valid. The sentence states the relation of an
actual behaviour to a norm. Such a statement is a value—judgment, and value-
judgments (which are statements about the relation of a behaviour to a norm) can be
true or false. They are true if they qualify as ‘good’ a behaviour which agrees with a
valid norm, and false if they qualify a behaviour as ‘bad’ even though it agrees with a
valid norm, or a behaviour as good or bad when there is no valid norm which
commands or forbids this behaviour.
It is not only statements about real facts which can be true or false, but also
statements about the validity—i.e. the ideell existence—of norms and statements
about the relation of human behaviour to norms, i.e. objective value—judgments.

Note 122

Charles L. Stevenson states that the ‘ethical judgment’ ‘This is good’ is a combination
of a descriptive statement ‘I approve’ and an imperative ‘Do so as well’ (1947: 20 ff.).
The descriptive statement ‘makes an assertion about the speaker’s state of mind’
(p. 26). This statement has neither an ethical nor a moral character. The ethicist’s task
is not to make statements about states of mind but about valid moral norms. A
person who informs others that a certain emotional reaction occurs in him makes a
psychological utterance, and not an ethical utterance or a moral utterance. It is only if
the words ‘That is good’ are the immediate expression of approval, and this approval
occurs in application of a valid moral norm, that the words have a moral character
(and not an ethical character). A person can approve of even a highly immoral
behaviour. But if the words ‘That is good’ signify moral approval, then they are
identical with a moral imperative, an individual moral norm: they express the
meaning of an act of will, they express an imperative, the individual moral norm
360 Note 122

‘Behave in this way’ or ‘You are to behave as you actually did.’ And if someone
disapproves of a person’s behaviour with the words ‘That is bad’, he thereby
expresses the meaning of an act of will, the meaning ‘Do not behave in this way’ or
‘You are not to behave as you actually did.’ If someone approves, with the words
‘That is good’, of the behaviour of a person who dives into a river to save someone
from drowning, he applies the general moral norm ‘Help your neighbour in need’
just as the judge applies the general legal norm ‘Thieves are to be imprisoned’ when
he decides——i.e. posits the individual legal norm—‘Schulze the thief is to be
imprisoned’. '
Stevenson defends the view that ethical judgments can be true or false (p. 267). And
he is right. But not if, as he states, the ethical judgment consists in an imperative and a
statement about the speaker’s state of mind. It is only the statement which can be true
or false, not the imperative. Hence the sentence ‘That is good’ cannot be both
simultaneously. It can only be one or the other. If someone combines both
significations in the words ‘That is good’, then we do not have one sentence but two
sentences, one of which—the psychological statement—can be true or false, and the
other—the imperative—cannot.
A. C. Ewing assumes that the word ‘fitting’ can be used not only in the sense of
‘suitable for an end’ (1947: 135). He distinguishes between fittingness ‘for a particular
end’ and ‘fittingness in regard to the situation as a whole’, and considers the latter
concept of ‘fittingness’ to be the fundamental concept of ethics, instead of the
concept of obligation and hence of the concepts ‘ought’ and ‘good’ (with their
multiple significations). He says on p. 185: ‘I make fittingness rather than moral
obligation the fundamental concept of ethics.’ For something to be ‘fitting’ in regard
to a ‘situation’ (i.e. a certain state of affairs) can only mean either that it agrees with a
norm concerning this situation, or that it agrees with an end which is presupposed
relative to this situation. If someone says ‘When walking in the rain, it is fitting to use
an umbrella’, this can only mean that it is expedient to use an umbrella in the rain.
And here ‘expedient’ means: If one does not want to get wet, one must use an
umbrella. This expresses a causal and not a normative relation.
Moral norms and ethical statements about moral norms cann0t be represented as
means—end statements, but it is possible to correlate such statements with moral
norms or ethical statements about moral norms. The sentence ‘If one wants to behave
morally, i.e. in a way which is “good”, then one must refrain from lying’ can be
correlated with the moral norm or the statement about the moral norm ‘You are not
to lie.’ But this sentence is completely different from the moral norm or the ethical
statement about the moral norm ‘You are not to lie.’ For this moral norm is
essentially a command, and the ethical sentence is a statement about a command. But
a means—end sentence is neither a command to refrain from lying nor a statement
about this command, just as the sentence ‘If one wants a metallic body to expand, one
must heat it’ is not a command to heat the metallic body or the statement about such
a command. It is true that in common usage the word ‘good’ is used to express not
only the agreement of behaviour with a valid norm or with a wish, but also the
relation of a means to an end. People say ‘That is a “good” knife’ and mean that it is a
suitable means for the purpose of cutting up objects or cutting a piece off an object.
But this is a signification of the word ‘good’ completely different from its moral
signification. '
George Edward Moore claims that the concept ‘good’ is indefinable: ‘If I am asked
“How is good to be defined?” my answer is that it cannot be defined, and that is all I
have to say about it . . . My point is that “good” is a simple notion, just as “yellow” is
a simple notion; that, just as you cannot, by any manner of means, explain to anyone
who does not already know it, what yellow is, so you cannot explain what good is’
(1948: 6f.). That is not correCt. You can say that the judgment that something is
 Notes 122—123 361

‘good’ means that it agrees either with a wish or with a valid norm of morality,
manners [Sitte], or law. In the first case, the judgment is a subjective value-judgment,
if it says that the object characterized as g‘ood’ agrees with the wish of the person
making the judgment. In all the other cases, if it says that it agrees with the wish of
most of the members of the group or with a valid norm, it is an objective value—
judgment. Hence Moore is mistaken in saying ‘there is nothing whatsoever which we
could so substitute for good; and that is what I mean, when I say that good is
indefinable’ (p. 8). On the question of definability, there is a difference between
‘good’ and ‘ought’: the latter is indeed indefinable. Cf. above, ch. 1.IV.
On pp. 21 ff., Moore distinguishes between ‘good as a means’ and ‘good in itself’.
He says: ‘Whenever we judge that a thing is “good as a means”, we are making a
judgment with regard to its causal relations: we judge bot/9 that it will have a
particular kind of effect and that the effect will be good 1n itself’ (p. 22). This 1s true
only of a subjective value—judgment. For instance, if you wish to prevent your wife
from having sexual 1ntercourse with A, the suitable means to this end 1s to kill A or
your wife or both. In this case, the end—because it is desired—is ‘good’ in a
subjective sense. But not in an objective sense. For killing a person does not agree
with a norm of morality, law, or manners: indeed it violates these norms. There is no
good-in-itself. Something is good only relative to a wish or to a valid norm. Since a
valid norm is the meaning of an act of will, it could be objected that even an objective
value-judgment is subjective since—in the final analysis—it expresses a relation to
this will. The answer to this is that the willing on the part of the norm-positing
authority is an objective fact, distinct from the wishing on the part of the subject
making the value—judgment. The value—judgment ‘Something is good’ is subjective
only if it serves to express that the object assessed as ‘good’ agrees wit/9 the wish of
the person making the judgment.

Note 123

Wallis—Walfiscz distinguishes between those ‘appréciations’ a person keeps to himself

and those he makes public (1937: 421 f.): ‘We formulate some of these appreciations
only inwardly, so to speak. Others we consciously communicate to others.’ And
again: ‘Appréciations which are merely thought and those which are both thought
and uttered.’ He considers ‘appréciations’ to be judgments. He says on p. 421: ‘By an
“appreciation” I mean a judgment stating that an object does or does not possess a
positive or negative value, a judgment which attributes or denies a positive or
negative value to an ,object, in short, a judgment about the positive or negative value
of an object.’ But Wallis—Walfiscz also characterizes acts of emotional appraisal as
‘appreciations’, i.e. as judgments. For example, he says on p. 422: ‘If someone yawns
noticeably during a concert, the yawn can be considered to be the expression of a
negative appreciation of the work being performed’, and ‘If we applaud or whistle at
a theatrical performance, the applause and the whistling are conventional signs by
which we express a positive or negative appreciation of the performance.’ Yawning,
applause, and whistling are immediate expressions of feelings of boredom, pleasure,
and displeasure; they have a purely emotional character; they are valuations, but not
value-judgments, which have a rational character since they are the meaning of acts of
thought. But Wallis—Walfiscz does not use the word ‘judgment’ in the sense of a
logical judgment. For he later (p.422) divides appreciations which are expressed
linguistically into those ‘which are not propositions’ and ‘propositions’, that is, those
which are expressed in sentences and those which are not. ‘Both express judgments;
but while those which are not propositions remain outside of the true-false
362 Notes 123—124

alternative, propositions are true or false’ (422 f.). From this we can conclude—
though he does not say so explicitly—that expressions such as yawning, applause,
and whistling are neither true nor false according to Wallis-Walfiscz. .Expressions
which are true or false, the ‘propositions which express appreciations, we shall call
“value—propositions”’. Thus Wallis—Walfiscz does distinguish between valuations
and value—judgments. But his terminology is most questionable, since it assumes
there are judgments which are neither true nor false, and this is a complete departure
from the terminology of traditional logic.
On p. 425, Wallis-Walfiscz distinguishes between ‘value-propositions’, which are
value—judgments in the true sense of the word, and ‘descriptive propositions’, and he
speaks of the ‘difficulty in drawing a line between value—propositions and those
which do not evaluate, namely, descriptive propositions’. But genuine value—
jndgments are descriptive judgments. For they describe the relation between an
object and a norm presupposed to be valid (objective value—judgments) or the
relation between an object and a specific psychological reaction (subjective value—
judgments). The opposite of a descriptive sentence is a prescriptive sentence, and
prescriptive sentences are norms, not value-judgments.
Ch. Perelman and L. Olbrechts—Tyteca distinguish between ‘abstract’ and
‘concrete’ values (1969: 77). They mention ‘justice’ and ‘truth’ as examples of
‘abstract’ values, and ‘France’ and ‘the Church’ as examples of ‘concrete’ values. But
‘France’ and ‘the Church’ are not values. France is a State, and the Church is a
religious organization. They are objects of possible value—judgments. They can have
a value, but they are not values. ‘A concrete value’, say the authors, ‘is one attaching
to a living being, a specific group, or a particular object, considered as a unique
entity. There is a close connection between the value attached to what is concrete and
to what is unique: by displaying the unique character of something, we automatically
increase its value.’ To speak of a ‘value attached’ to something is to distinguish
between the value attributed to an object and the object to which the value is
attributed. Hence the object cannot be the value. The authors cite particularly the
human person as an example of a concrete value: ‘the human person, the concrete
value par excellence’. The individual human being as such is not a value. But a value
can be attributed to the individual if we presuppose the following norm to be valid:
‘There are to be individual human beings.’ By his very existence, every individual
human being then agrees with this norm, and has value. But this norm can be valid
only as a norm posited by God, who according to Genesis created man and thereby
expressed his will that there are to be human beings. Furthermore, the object of
evaluation—of a value-judgment—is not a human being but rather his behaviour—
in so far as we are talking about objective vali1e. It is only in a figurative sense that we
can say of a person who acts in accordance with a norm—whose behaviour is ‘good’
in this sense—that he is a ‘good’ person (cf. above, ch. 16. 111).

Note 124

Logic, or reason, has been claimed by philosophers both as the special possession and as the
principal foundation of law since at least the time of Aristotle. . . . The whole school of
scholastic philosophers takes the view that the law actually applied in society is—or ought to
be—comprised of rules, logically deduced from certain immutable ‘natural’ principles which
are themselves discovered by man through the operations of reason. (Loevinger, 1952: 471)
The English legal historian F. W. Maitland calls lawyers ‘the great mediators between
life and logic’ (1903: lxxxi).
 Note 125 363

Note 125

Eugen Ehrlich: ‘For most laymen and many jurists today it is a truism that the task of
judicial adjudication consists essentially in logically deriving the decision for the
individual case from the prescriptions of the statute’ (1918: preface). But Ehrlich does
not object to this view on the grounds that such a logical derivation is impossible. He
claims only that it is not always possible to reach the judicial decision by way of a
logical inference from the statute, i.e. from a general legal norm contained in a valid
statute. He admits explicitly that in criminal law the opinion that the judicial decision
is the result of a logical inference from the statute is correct:
The judge in a criminal case may convict only if a statute of criminal law is applicable to the
present case in virtue of formal logic. Consequently, a correct judgment in a criminal case—at
least in relation to the question of criminal liability—is indeed, as Beccaria demanded, a logical
inference (a ‘sillogismo perfetto’), in which the Statute forms the major premiss, the criminal
act the minor premiss, and the judgment the conclusion. (p. 220)
But it sometimes happens ‘that the judge consciously convicts in the absence of a
statute of criminal law, and merely to preserve appearances, cites a section which
does not apply to the case at all’ (p. 221). On p. 149, he says:
The judge’s duty to derive the decision from a proposition of law [contained in the statute]
would then be a truth, if the judge’s cognition really consisted, as Beccaria requires, in a logical
inference in which a proposition of law [contained in the statute] forms the major premiss, the
factual situation the minor premiss and the judgment the conclusion. But the major premiss of
the judge’s cognition is often [hence not always] fabricated by the judge in giving judgment, and
a fabricated proposition of law is a fiction of a proposition of law.
What Ehrlich means is that it is a fiction that this proposition of law fabricated by the
judge is contained in the statute. In other words, his position is that the judicial
decision is not inferred from the statute when the major premiss is a proposition of
law fabricated by the judge. But Ehrlich does not deny that the legal decision in this
case is logically inferred from the general legal norm fabricated by the judge. Ehrlich
presupposes that we expect the judge to hand down a decision which is just (cf.
p.301). ‘We say that a judicial decision is just when it correctly appreciates the
interests in the dispute, when it promotes the interests which deserve to be socially
protected and harms other important interests as little as possible’ (p. 309). Thus
Ehrlich postulates that if the statute does not contain any general legal norm suitable
to the concrete case, the judicial decision ought to be based on ‘the judge’s own legal
consciousness, his weighing of the interests’ (p.289). What his book on ‘Juristic
Logic’ is really aiming at is the legal-political requirement called ‘free adjudication’
[freie Rec/otsfindung], according to which judges should not be strictly bound by
existing statutory or customary law. What this principle actually means is that the
judge ought to be empowered to decide a concrete case according to his own
discretion if he considers the application of already valid law to the case to be unjust.
If this requirement is limited—as in Ehrlich—to cases where the statute—or to be
exact, already valid law—cannot be applied to the concrete case because already valid
law does not contain any legal norm concerning the case to be decided—i.e. to cases
where there exists a so-called ‘gap in the law’—then it is based on a delusion. For as
was shown earlier, already valid law can always be applied, if the judge is under a
duty to apply only valid law in his decisions. There is no such thing as a ‘gap in the
law’ in the sense of a case where already valid law cannot be applied. If valid law does
not contain any norm imposing on the defendant or the accused the duty which the
plaintiff or prosecutor claims he has violated, then the judge, in applying valid law,
364 Notes 125—128

has to dismiss the plaintiff’s case or acquit the accused. There can exist a ‘gap’ in the
law only in the sense that applying valid law to the present case appears unjust, or
undesirable for some other reason, to the organ which has to apply it to the case.
Since this is possible in every case, the demand for ‘free adjudication’ amounts to
placing law—applying organs, especially judges, on the same footing as legislators.

Note 126

It may be more or less true that there exists a certain relation between the general
norms of a positive legal order and moral-political principles of a higher degree of
generality, in particular that legislators are influenced by such principles in their law—
creating function. But this does not mean that the validity of the general norms of
positive law follows logically from the validity of these principles. Whether this is the
case will become clear when we answer the question whether the validity of the
individual norm in the judicial decision is reached by way of a logical inference from
the general norm to be applied by the judge. The logical problem is the same in both
cases.

Note 127

Jerzy Wroblewski says: ‘Cases of doubt as to whether a given norm immediately fits
a fact—situation in question are relatively rare occurrences’ (1963: 405). If a given legal
norm proves to be immediately applicable to a given fact—situation, then no
interpretation is necessary. Wroblewski says on p.406: ‘ . . . the need for legal
interpretation . . . is one of the signs that something has gone wrong in the law area.’
He cites the maxim ‘Intemretatio cessat in Claris’ (p. 413). On p. 410 he says: ‘ . . . the
meaning of a legal norm has to be sought through its analysis in the context of its
occurrence.’ He distinguishes three kinds of context: ‘We can distinguish three types
of contexts of the legal norm: linguistic, systemic and functi.’onal Accordingly, he
distinguishes three kinds of 1nterpretation:
We have, then, a linguistic, a systemic and a functional set of directives of interpretation, and
applying them we seek to fix the meaning of the legal norm in question . . . The interpreter has
to decide the two questions: (a) when one has to use each set of the directives of interpretation,
and (b) what to do, if the norm has various meanings according to the various sets of directives
used? (p. 413)
That may be correct. But the decision is a problem of legal politics and not one of
legal theory. The organ competent to apply the norm to be interpreted has to arrive
at a decision according to its own discretion if statutory or customary law does not
prescribe a particular method of interpretation.
H. Oliphant and A. Hewitt (1938) refer to the fact that a given case can be decided
in different ways when different general principles are taken as the starting-point.

Note 128

Wroblewski distinguishes between two theories concerning changes of meaning in

legal norms. ‘One group of normative theories of legal interpretation assert that the
meaning of an interpreted norm is constant as long as it is not changed explicitly in
appropriate action by the normgiving authority’ (1963: 415). These he calls ‘static
 Note 128 365

theories’. ‘The second group of normative theories of legal interpretation we propose

to call “dynamic theories” because according to them the meaning of a legal norm
changes without any interference from the lawmaker. The legal norm enacted lives its
own life and adapts itself to the changing circumstances of its functional context’
(p. 415). From a positivistic point of view, the first theory is the only defensible one.
In my opinion, the second is a fiction. Since the judge must ground his decision on a
valid general norm but his decision does not agree with the meaning of the norm to
be applied, he must claim that the meaning of this norm changed with the changed
circumstances. Since even such a decision can become res jadicata, the judge’s duty to
ground his decision on a valid legal norm is fundamentally limited—if not nullified—
by the principle of res jadicata. But that does not mean that the principle of legality
of judicial decisions is nullified. For the principle of res jadicata is a principle laid
down by positive law; and a judicial decision which has to be considered valid merely
in virtue of the principle of res jadicata is just as ‘legal’ as a judicial decision which is
‘legal’ and valid because it agrees with an already valid materially determinate general
norm. And so the principle of legal positivism and the opposition to Natural Law
theory are maintained, since according to Natural Law theory a judicial decision is
considered valid not because of its legality in the sense just described, but because it
agrees with a principle of Natural Law.
On p. 269 of my Pare Theory of Law (1967), I referred to the consequences of the
principle of res jadicata for the description of a positive legal order by legal science,
that is, the fact that the highest court is empowered by positive law to posit either an
individual legal norm whose content is predetermined by a general norm created by
way of custom or legislation, or an individual legal norm whose content is not
predetermined in this way. But J. Miedzianagora (1963) pays no attention to this
passage in his criticism of my theory.
Oliver Wendell Holmes (1948) refers to the change in meaning to which a general
legal norm presupposed in a precedent is subject. He says on p. 35: ‘The official
theory is that each new decision follows syllogistically from existing precedents.’ But
he adds: ‘precedents survive in the law long after the use they once served is at an end
and the reason for them has been forgotten. The result of following them must often
be failure and confusion from a merely logical point of view.’ We then read:
And as the law is administered by able and experienced men, who know too much to sacrifice
good sense to a syllogism, it will be found that when ancient rules maintain themselves in the
way that has been and will be shown in this book, new reasons more fitted to the time have been
found for them, and that they gradually receive a new content, and at last a new form, from the
grounds to which they have been transplanted. (p. 36, stress added)
Holmes’s oft-quoted dictum ‘The life of the law has not been logic: it has been
experience’ (1948: 1) seems to express the view that the principles of logic have no
application to law. But he seems to say the opposite in another statement of his:
The fallacy to which I refer is the notion that the only force at work in the development of the
law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which
we think about the universe is that there is a fixed quantitative relation between every
phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon
without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect
and as such transcends our power of thought, or at least is something to or from which we
cannot reason. The condition of our thinking about the universe is that it is capable of being
thought about rationally, or, in other words, that every part of it is effect and cause in the same
sense in which those parts are with which we are most familiar. So in the broadest sense it is true
that the law is a logical development, like everything else. (1921b: 180)
From the fact that our knowledge of natural reality is a result of the principle of
causality, it does not follow that the law is ‘a logical development’. The principle of
366 Notes 128—129
causality is not a logical principle, and it is a principle of our knowledge of natural
reality and not of the law. Further on Holmes says:
The language of judicial decision is mainly the language of logic. And the logical method and
form flatter that longing for certainty and for repose which is in every human mind. But
certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies
a judgment as to the relative worth and importance of competing legislative grounds, often an
inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole
proceeding.
These lines are not evidence that Holmes thinks that a judicial decision cannot be a
logical inference; especially since he adds: ‘You can give any conclusion a logical
form’ (p. 181). Furthermore, it should be noted that Holmes is speaking here of
thought, and so he can only be speaking of legal science and not of law (which is not a
function of thought but of will) when he says that it is a ‘logical development’.
Concerning Holmes’s dictum that law is a matter of experience and not logic,
Loevinger comments: ‘Holmes did not mean to minimize the importance of rational
thinking in the law’ (1952: 472, stress added). But the law is not a function of
thinking but of willing. Concerning the alternative ‘Experience 'or Logic’, Loevinger
comments pertinently:
The first misconception that muSt be discarded is the assumption that there is a dichotomy of
logic on the one hand and experience on the other. The choice does not lie between logic and
experience; or, for that matter, between logic and tradition or social value or practical
consequences. The alternative to logic is simply the resort to intuition or some other irrational
method. It is the lesson of modern science that logic is helpless to determine material questions
without reference to experience; and that experience lacks intellectual significance without the
interpretative aid of rigorous logic. (p. 520)

Note 129

The claim that a positive legal order does not contain any ‘gaps’, in the sense that the
legal order cannot be applied to a concrete case because of the lack of a general norm
concerning this case, is also called the ‘closure’ or ‘completeness’ of positive law.
Thus Maurice Sheldon Amos speaks of an ‘Axiom of Completeness’:
This axiom states that to every question of law, the solution of which is required for the
decision of an actual case, there is an answer. . . . This axiom finds its counterpart in French law
where it is expressed in article 4 of the Civil Code: ‘Le juge qui refusera de juge‘r, sous prétexte
du silence, de l’obscurité ou de l’insuffisance de la loi, pourra étre poursuivi comme coupable de
déni de justice’. (1929: 40)
Amos comments: ‘But this principle of the completeness of the law is by no means
necessary or universal.’ But the Principle of Completeness, understood as the
principle that a positive legal order can always be applied to a concrete case, is true of
every positive legal order. It can be judged to be bad or undesirable from the point of
view of legal politics, and accordingly a legal—political demand can be put forward
that positive law ought to empower the judge in certain conditions not to apply
already valid positive law to a concrete case, and to decide the case according to his
discretion. But paradoxically, when the judge is empowered in this way by positive
law, he applies positive law even when he makes use of this power and decides
according to his discretion.
Article 1 of the Swiss Civil Code contains such a grant of power: ‘In the absence of
any applicable statutory provision, the judge shall decide according to customary
law, and in the absence of any custom, according to the rules he would enact if he
 Notes 129—131 367

were to be the legislator.’ In order to justify giving the judge the power to decide a
concrete case as he would want to do if he were a legislator, article 1 of the Swiss
Civil Code proceeds on the assumption—which is false from the point of View of
legal theory—that situations can occur where valid positive law cannot be applied to
a concrete case. Since such situations cannot occur, article 1 would be completely
inapplicable if it were not interpreted to mean that it is when the judge considers
valid enacted or customary law not to be applicable to a concrete case that the power
it confers obtains. The legislators may have avoided the correct formulation ‘If
the judge considers applying valid law to be unjust or undesirable for some other
reason . . .’—assuming they were aware of it all—because it would go too far and
actually put the judge in the position of the legislators. The theoretically false
formulation has the desirable practical effect of giving the judge the impression that
the power granted him by the legislators is quite limited. And in point of fact, article
1 of the Swiss Civil Code is hardly ever used.

Note 130

CF. F. S. C. Northrop: ‘investigating our human ways of knowing, with particular

reference to how words obtain their various species of meanings . . . may- help us to
understand and evaluate the all-or—none principle in legal judgments . . . , including
their respective conceptions of the meaning of words, and relate them to the settling
of legal disputes’ (1963: 742). His main problem is whether the appropriate method
of putting an end to legal disputes is a judicial decision or mediation. His answer to
the question ‘whether judge—declarable litigational law is both meaningful and
warrantable’ is:
(1) Such is the case only for those portions of law in which (a) the facts of the case and (b) the
universally obligatory norms of decision have been formulated in logically realistic language
and then interpreted by the judge logically realistically rather than radically empirically or naive
realistically. (2) For all other parts of law, mediation is, strictly speaking, the only meaningful or
warrantable method. (p. 746)

Note 131

. . in law, as in real life, there is always an element of choice. When a logician determines the
implications of the proposition ‘all men are mortal’ he proceeds on the footing that each word
has a definite circumscribed ambit which is quite inflexible. When on the other hand, a judge
seeks to apply to the facts before him a rule of law which asserts that ‘the person who for his
own purposes brings on his lands and collects and keeps there anything likely to do mischief if it
escapes, must keep it in at his peril’, there is not one word in this sweeping generalisation which
is not capable, as subsequent litigants have discovered, of infinite refinement and qualification.
It can hardly be contested therefore that the lawyer is never faced with anything in the nature of
logical compulsion and that attempts to state judicial decisions in the form of a syllogism or in
any other form of high abstraction are both misconceived and misleading. No doubt once a
particular decision has been arrived at, it can always be expressed in this form, but to do so may
very well be misleading for two reasons: (a) It suggests wrongly that the decision was arrived at
as a matter of necessary logical implication; (b) it tends to imply that further consequences can
be deduced as a matter of logic and that such deductions also follow as a matter of law. (Lloyd,
1948:474)
And Edward H. Levi says: ‘In an important sense legal rules are never clear, and, if a
rule had to be clear before it could be imposed, society would be impossible’ (1948: 1).
368 Notes 131—132

Levi applies this also to legal norms contained in statutes (norms created by
legislation). He says: ‘It is only folklore which holds that a statute if clearly written
can be completely unambiguous and applied as intended to a specific case’ (p. 6). It is
manifestly an exaggeration to say that general norms are never clear and are always so
ambiguous that they can never be applied with certainty to a concrete case and so
cannot form the premisses of a syllogism. The sentence ‘If someone intentionally
causes the death of another by his own behaviour, he is to be punished by being put
to death by hanging’ is no more ambiguous than the sentence ‘If a being is human, he
must die.’ Legal norms can be formulated as unambiguously as sentences used to
describe reality. It is true that often they are not formulated unambiguously. But the
problem we are discussing of the applicability of logical principles to norms
presupposes that the norms are formulated unambiguously.
Lord Wright of Durley says quite rightly: ‘There are comparatively few cases in
which the relevant rules of law are uncertain. What is more often uncertain is, what is
the right rule to apply’ (1939: 343). Nevertheless, Grant Gilmore says: ‘No rule of
law can be invented that cannot be circumvented by the fraudulently inclined. Indeed
the attempt to state rules of law in such precision and detail that they cannot be
turned or evaded is self—defeating; the connoisseur of fraud quickly finds ways to
convert the protective device into an engine of iniquity’ (1957: 39). But if a legal
norm is formulated unambiguously—and this is possible, as we said—then it is
impossible for it to be circumvented in good faith by a judge of normal intelligence.

Note 132

R. M. Hare discusses the problem of the applicability of logical principles to

imperatives in his article ‘Imperative Sentences’ (1949) and in his monograph The
Language of Morals (1964). He tries to show that logic is applicable not only to
statements, which are true or false, but also to commands or——as he puts it——to
imperatives. In his article, he says:
As examples of the view which I am attacking, the following passages may be quotedz—‘In the
scientific use of language . . . the connexions and relations of references to one another must be
of the kind which we call logical . . . But, for emotive purposes logical arrangement is not
necessary’ (Richards, Principles of Literary Criticism, p. 268).—‘The symbolic use of words is
statement; the recording, the support, the organisation and the communication of references.
The emotive use of words is . . . the use of words to express or excite feelings and attitudes . . .
The best test of whether our use of words is essentially symbolic or emotive is the question “Is
this true or false in the ordinary scientific sense?” If this question is relevant then the use is
symbolic, if it is clearly irrelevant then we have an emotive utterance’ (Ogden and Richards,
Meaning ofMeaning, pp. 149 f.). ‘When language is used simply in order to refer to a referend,
its use is scientific. When it is used in order to arouse an emotional attitude in the hearer, to
influence him in any way other than by giving him information, then its use is emotive . . . What
is called logical connexion has little relevance to the emotive use of language, whereas it is the
condition of success in scientific language’ (Stebbing, Modern Introduction to Logic,
pp. 17f.).—‘The word “meaning” is here always understood in the sense of “designative
meaning”, sometimes also called “cognitive”, “theoretical”, “referential” or “informative”, as
distinguished from other meaning components, e.g. emotive or motivative meaning. Thus here
we have to do only with declarative sentences and their parts’ (Carnap, Meaning and Necessity,
p. 6). . . . The criterion which I am attacking says, then, that indicative sentences are the only
sentences with which logic is called upon to deal. The way in which I shall attack it is as follows.
I shall take a class of sentences, namely imperatives, which clearly do not purport to state that
anything is the case [as ‘indicative sentences’ do, i.e. statements which are true or false], and
shall show that their logical behaviour is in many respects as exemplary as that of indicative
sentences. (1949: 21)
 Notes 132—133 369

Hare defends the view that the logical principles of contradiction and inference are
applicable to imperatives, and therefore to norms which can be expressed in
imperative sentences.
In his book (1964: 4ff.), Hare rejects the various attempts ‘to “reduce” imperatives to
indicatives’. On p. 5 he says: ‘An indicative sentence is used for telling someone that
something is the case; an imperative is not—it is used for telling someone to make
something the case.’ That is certainly true, but it misses the essential point, namely
that we are dealing with the difference between Is and Ought. On p. 6, Hare has this
to say about the claim that ‘Shut the door’ means ‘I want you to shut the door’: ‘the
sentence “shut the door” seems to be about shutting the door, and not about the
speaker’s frame of mind, just as instructions for cooking omelets (“Take four eggs,
etc.”) are instructions about eggs, not introspective analyses of the psyche of Mrs.
Beeton.’ That is correct. But Hare also says: ‘ “I want you to shut the door” is not a
statement about my mind but a polite way of saying the imperative “Shut the door”.’
That is clearly false. If, for instance, I say to B ‘I want you to shut the door’ I make a
statement about a mental event occurring within me. The fact that in so doing I am
seeking the same result as if I had addressed the imperative ‘Shut the door’ to B
cannot convert what is logically a statement into something which is logically an
imperative. And this is the inescapable consequence of the fact that a statement
(which is true or false) is not an imperative (which is neither true nor false).
Hare is mistaken when he says ‘Telling someone to do something, ' or that
something is the case, is answering the question “What shall I do?” or “What are the
facts?” ’, and ‘commands . . . like statements, are essentially intended for answering
questions asked by rational agents’ (pp. 15 f.). A can say to B ‘You are an illegitimate
child’ without having been questioned by B about this because B never doubted that
he was legitimate, or if he had doubts, did not want to know the truth.
The important point is that Hare says: ‘commands . . . like statements . . . are
governed by logical rules just as statements are. And this means that moral judgments
may also be so governed’ (pp. 15 f.).

Note 133

A highly inconsistent attempt to define the nature of a judicial decision is that of

Carlos Cossio in his so—called ‘egological’ theory (1948). Cossio proceeds from the
assumption that the object of legal cognition, and so also of law, is not norms but
human behaviour considered from a certain point of view: ‘ . . . the egological theory
considers that the objects to be known by the jurist are not rules but human conduct
viewed from a certain particular angle’ (p. 348). To this it must be said that there are
two points of view from which human behaviour can be considered: that of
explanatory science of reality (natural science in the broadest sense of the word) and
that of ethics and jurisprudence which considers human behaviour as the content of
norms, and thus as norm—positing, norm—observing, or norm-violating. It is clearly
from the second point of view that Cossio considers law to be human behaviour
when he says that law is a ‘cultural object’ and characterizes cultural objects in the
following way: ‘they have existence, they are in experience, they are in time, but they
are enriched with a positive or negative sign: just or unjust, handsome or ugly, useful
or useless . . . ’ (p. 350). In other words, they have a positive or negative value. If this
value is objective and not merely a subjective preference (which can vary
considerably from person to person concerning the same object), then the statement
that an object has value means that it agrees or fails to agree with a valid norm. Cossio
also says: ‘ . . . cultural objects have value . . . Cultural objects are not values, since
370 Notes 133—134

these are not realities’ (p. 355). Cossio believes—erroneously—that these values are
immanent in the objects: ‘The value resides or appears as quality in the goods. The
Venus de Milo, for example, is not beauty, it only shares this value, and we say that it
is beautiful, just as we do not say that it is whiteness, but only that it is white, since
that is the color of its marble.’ But the beauty of a marble statue is not one of its
properties like the white colour of the marble. The marble’s being white is the result
of an immediate perception, and this judgment is not susceptible of any further
justification. But the judgment that the statue is beautiful can be, and must be,
justified by the object’s agreeing with certain aesthetic requirements.
Cossio contrasts the judgment ‘The law is just’ with the judgment ‘The statue of
the Venus de Milo is beautiful’: ‘If it is a statue, it will be beautiful or ugly . . . if it is
law, it will be just or unjust.’ And on p. 358: ‘ . . . we appreciate the Venus de Milo
not only because it is beautiful, but also at the same time that it is beautiful in itself,
and so we appreciate it. The same is true for a decision and the justice of it.’ Here we
clearly see that the problem Cossio calls the ‘phenomenology of the decision’ is the
question whether a judicial decision is just or unjust, and this is a question which has
nothing to do with the phenomenology of decisions. There is no other answer to this
question than: A judicial decision is judged to be just or unjust if it agrees or fails to
agree with a principle of justice presupposed to be valid. And so the judgment that a
judicial decision is just or unjust makes sense only if we do not identify law and
justice but consider them to be two different normative systems. But Cossio declares:
‘The Law does not seek nor tend to realize justice because the Law itself already is
positive justice’ (pp. 375 f.). He thus identifies law and justice, and this is where his
parallel between the beauty of a statue and the justice of law breaks down. On p. 368
Cossio insists ‘that the Judge, as creator of the decision, is within, and not outside of
the order; and is in its structure as part of the structure . . .He follows the Pure
Theory of Law in characterizing the judicial decision as an individual norm, and this
can only mean that this individual norm is the meaning of the ‘human conduct’
represented by the act of the judge. This means that the act of deciding is part of the
procedure of creation of law, and the meaning of this act is a prescription. But
Cossio’s phenomenology of the judicial decision comes to the surprising conclusion
that ‘the decision . . . [is] a conceptual representation of a portion of juridical
experience: it describes in the concrete a conduct in its ought-to-be. The decision is
an individual norm, is that and nothing else according to the egological theory’
(p. 396; stress added). How a judicial decision can be a norm prescribing that
something ought to be (and thus a prescription) and also the description of the
behaviour to be observed 15 a puzzle the solution of which remains the secret of the
egological theory.

Note 134

Felix Berriat Saint—Prix begins his monograph on judicial logic (1855) with a
definition of logic: ‘Logic is the art of demonstrating the truth of a proposition.’ It is
this logic which according to his account applies not only to legal science but also to
law itself, i. e. to the creation and application of legal norms. On p. 8 (§ 9), he says:
‘Legal logic 18 of use to all those who want to attain certainty on a question of law.’ A
q‘uestion of law’ can be decided only by legal procedure, i..e the procedure’ of
creating and applying legal norms, and not by legal science. Berriat continues the
sentence just quoted: ‘It is sufficient for those I call the partisans of absolute legal
truth.’ But Berriat himself believes in ‘legal truth’. He appeals on this point to
Ulpian’s rule (Digest, Book 50, Title 17 De regalis jaris 207): ‘Res judicata pro
 NOtes 134—135 371

veritate accipitur’ (‘A matter judicially decided is treated as true’) (p. 13, § 18). Berriat
clearly equates the validity of a legal norm with its truth. In connection with his
explanation about the part syllogisms play in legal science and in law, Berriat says on
p. 16 (§ 25): ‘The syllogistic form . . . does not guarantee the truth of the major
premiss which is being relied on. But in positive law, this deficiency is not as
troublesome as in the other human sciences.’ Thus, according to Berriat, positive law
is one of the human sciences. We then read later on: ‘More often than not, we start
from a statute whose existence and binding force are unquestionable: the major
premiss of all arguments based on a legal text is certain.’ Thus, Berriat assumes a
syllogism whose major premiss is a general legal norm contained in a statute. And he
insists that the elements of the syllogism are ‘propositions’ (p. 14, M 21—2) and that
its function is to justify the truth of the conclusion. And he says that the third
element of the syllogism which (according to him) is used in legal procedure is ‘the
conclusion (or consequence) whose truth we want to demonstrate’. The following is
an example of a normative syllogism according to Berriat: ‘The owner enriched
himself at the manager’s expense; hence he must compensate the manager; the
principle against enrichment at the expense of others is presupposed here.’ Thus he
means that the individual norm according to which a certain owner ought to
compensate his manager for the money he made at his expense can be reached by way
of a logical syllogism which grounds the truth of the conclusion representing the
individual norm.
Spiros Simitis says: ‘Legal conclusions, therefore, do not prove themselves to be a
part of applied general logic. What legal conclusions seem to have in common with
logic is merely the name. Argumentation with the help of legal conclusions is only
pseudological argumentation’ (1960: 85). But the paragraph ends with the words:
‘Legal logic begins where the pseudologic of legal conclusions stops.’ And on p. 91
we find: ‘Law is rational. Reason is the basis of all legal reasoning.’ But the next
sentence reads: ‘Legal science can, therefore, not afford to do without logic.’
A. G. Guest accepts that logic principles, in particular the rule of inference, are
applicable to norms, but he admits ‘that logic as an instrument of legal reasoning has
grown unpopular of late . . . The chief objection to logic in the law is usually
expressed in the form that logical thought processes are rigid and inflexible whereas
legal reasoning is empirical and discretionary’ (1961: 176). And:
It must be admitted that, at first sight, there is considerable truth in these contentions. It is clear
that there are many other sources of decision besides simple deductions from existing
principles, and that consequently such deductions do not necessarily follow as a matter of law.
The pre-existence of a body of legal rules does not eliminate discretion on the part of the judge
whether or not he should apply them, and he is always entitled to keep his eyes on other sources
of law—on the ethical code of the community, on social justice, on history—in arriving at his
decision. (p. 177) I
What Guest has in mind is the idea that the judge does not necessarily have to, and
often does not, arrive at his decision by way of a logical inference from a
predetermined legal norm, and indeed that from the point of View of legal politics it is
often preferable that he not do so. But Guest does not deny the possibility that the
validity of a judicial decision can follow logically from that of a general norm.

Note 135

Cf. Bruno Baron von Freytag Loringhoff (1961: 190 ff)

A notable defender of the opinion that the supercession of Euclidian by non—
Euclidian geometry must have essential repercussions on legal science is Jerome
372 Notes 135—136

Frank (1931). But what is the basic consequence of the supercession of Euclidian
geometry according to Frank? The insight that there are no ‘self—evident truths’, ‘that
the seeming self-evidentiary character of any axiom is no longer reputable as a
sufficient argument in its favor’ (p.573). ‘Axioms have been secularized. They are
now regarded merely as assumptions, and no assumptions are considered sacrosanct’
(p. 576). The claim that this insight has repercussions on legal thinking presupposes
that the general principles with which mathematics and physics operate can be
considered analogous to the general legal norms created by legislation and custom.
But there is no analogy. General legal norms are completely different from the
general principles of mathematics and physics. They are not assumptions, i.e.
statements, which—like the assumptions of mathematics and physics—claim to be
true, even if not self—evidently true; they are neither true nor false, since they are
norms. The demand that these norms not be considered self—evident truths makes no
sense. They do not serve to explain the facts of natural reality—as the general
principles of physics do—but to induce human beings to act in certain ways. No one
questions the possibility of changing the general legal norms posited by human
beings. It is only the norms posited by God which are unalterably valid, in so far as a
person believes in their validity (in his religion). But such norms are of no concern to
legal science. While the principles with which mathematics and physics operate can
be changed by these sciences if they prove to be false (just as they were originally put
forth by these sciences), legal norms can be neither posited nor changed by legal
science. That is the function of legal authority. There can thus be no question of any
repercussion of the supercession of Euclidian geometry upon legal science.
Walter W. Cook (1927) also tries to draw conclusions about the method to be used
in legal science, from the revolution brought about in modern natural science by the
discovery of the relativity of Euclidian geometry. Likewise Miriam Theresa Rooney
(1941). The reply to these attempts is the same as to Frank’s: the fact that there is a
non—Euclidian as well as a Euclidian geometry is of no consequence for legal
cognition.

Note 136

In an earlier passage, Sigwart says that all thought which pursues the goal
of certainty of its own necessity and universal validity . . . results finally in judgments, which are
expressed inwardly and outwardly as propositions . . . Again, the judgment can be an object of
scientific investigation only in so far as it is expressed in a proposition; only through the
proposition can it become an object of general consideration, and only as a proposition can it
aspire to universal validity. (1895: i. 8—9)
But in the second volume of the same work, he says of the sentences ‘in which
general rules find expression’: ‘The question is not what is actually thought and
imagined as objects of the will and affirmed by the will, but what under certain
conditions and according to logical rules ought to be thought and affirmed’ (ii. 542).
From the fact that logic is a doctrine about thinking and that thinking results in
judgments, it would seem to follow that the principles of logic, in particular the
principle of contradiction and the rule of inference, are not applicable to norms, since
norms are not meanings of acts of thought but of acts of will, are not judgments, are
not true or false, but decree an Ought which, as Sigwart says, ‘is the correlative of
will’ (i. 17).
Only judgments are true or false, as Alois Hofler insists: ‘The properties “true” and
“false” are possessed in an immediate sense exclusively by judgments’ (1922: 58).
 Now 136 373

Sigwart says that the principle of contradiction ‘refers to the relation between a
positive judgment and its negation; it expresses the nature and meaning of the
negation by saying that the judgments ‘A is B” and‘‘A is not B” cannot both be true
together’ (1895: i. 139). Here he limits the application of the principle of
contradiction to judgments which can be true or false. He also says that ‘the process
of drawing a conclusion or inference takes place psychologically whenever we are led
to believe 1n the truth of a judgment by our belief 1n the truth of one or more other
judgments, and not immediately by the ideas of the subject and predicate connected
in it’ (i. 326). And: ‘Since every inference involves the belief that one judgment (the
conclusion or inferred proposition) is true, because one or more other judgments (the
premises) are true, . . . logical theory . . . has to investigate the logical necessity of this
belief that the premises are a sufficient ground for the conclusion’ (i. 327). Here he
limits the application of the rule of inference to judgments which are true or false.
But in [a later edition of] the second volume, he says: ‘A judicial judgment follows
unambiguously and necessarily from the sections of a statute and the relevant facts,
and a decision of the will follows similarly from moral principles’ (1924: ii. 627), and
he adds: ‘this necessity is logical and not psychological.’ ‘Sections of a statute’ and
‘moral principles’ are norms, the meaning of acts of will, and not judgments, the
meaning of acts of thought. However he says: ‘Just as the principle of contradiction
[says] that ifa proposition is affirmed it cannot also be denied, so we may conceive of
an ethical first principle which would not itself say what must be willed, but only
that if one thing is willed another must be willed, and a third cannot be willed’ (1895:
ii. 544). If this can be interpreted as an extension of the principle of contradiction and
the rule of inference to norms, it must be said that Sigwart does not call these
principles principles of logic but of ethics and that he does not assert that they are
valid, but only that they can be conceived.
Nor is the way other leading logicians present the problem of the applicability of
logical principles to norms very satisfactory.
Thus, Fiiedrich Uberweg defines logic as ‘the doctrine of the normative laws
which must be obeyed in order to realize the Idea of truth in the activity of
theoretical reason in man’ (1857: 4), and says that ‘the science of logic makes possible
. a conscious application of the laws of logic’ (p. 8). He says: the activity of
‘thought’ and not of will. From this it would follow that logical principles are not
applicable to norms, which are not the product of the activity of thought but of the
activity of will and which are not true or false. But on p. 309, Uberweg says: ‘The
application of the laws of grammar to individual cases is a syllogistic process of
thought“ .The same is true of the application of legal laws.’ The application of legal
laws to individual cases is not a process of thought but of will, and 1n such a process
there cannot occur any syllogism (a logical process) if logic 1s what Uberweg says it
is, i. e. the theory of the laws which must be obeyed 1n order to realize the Idea of
truth in the activity of theoretical reason, and if logic makes possible a conscious
activity of thought, not of will.
And Benno Erdmann says: ‘the proper object of logical regulation [is] formulated
thought, thought carried out in the various forms of speech’ (1923: v), and he
distinguishes three forms of this thought: ‘assertions, namings, and problems’ (p. 1).
He says that these three forms appear ‘in the form of sentences’ and are ‘formulated
linguistically’. For this reason, he calls ‘these three components of our thought’
‘statements or formulated judgments’. On p. 8, he states: ‘All the norms of our social
life are, to begin with, kinds of assertions not about what is but about what ought to
be. Thus, all these norms, such as those of law, of manners [Sitte] or of morality,
become objects of scientific thought . . . ’ On p. 141 Erdmann speaks of ‘norms of all
kinds in which we do think not what is but what ought to be . . . ’. It is incorrect that
374 Note 136

norms are ‘assertions’ and thus ‘forms of thought’ or even ‘judgments’; and it is
incorrect that they are assertions about ‘What ought to be’; rather they decree what
ought to be, since they are the meaning of acts of will and not the meaning of acts of
thought. The ‘assertion’ that something ought to be is a statement about the validity
of a norm, and not a norm. On p. 366 Erdmann asserts: ‘Just like normative logical
determinations, all other determinations of what ought to be are subject as assertions
to the criteria of certainty and logical necessity, and therefore also, if they are
objectively valid, of truth.’ From the claim that norms as determinations of that
which ought to be are subject to the criteria of truth, it would seem to follow that the
principles of logic, in particular the principle of contradiction and the rule of
inference, are applicable to them, just as they are to judgments. But Erdmann says
immediately thereafter that ‘the intellectual and emotional operations to which they
[i.e. practical norms] owe their origin are not subject to logical regulation.’ Since the
word ‘they’ in this sentence cannot refer to the ‘emotional elements’ as it should
according to the wording of the sentence—since this would not make sense—it must
refer to the ‘practical norms’. If this is correct, then from the fact that practical norms
which owe their origin to these intellectual and emotional operations, i.e. the norms
of morality and law, are also not subject to logical regulation, it follows that the
principles of logic are not applicable to them.
Julius Bergmann must also be mentioned in this connection. He characterizes logic
as ‘the technical science of thought’ (1879: 1), and since he assumes that thought may
be ‘equated with judging’, he also defines logic as ‘the technical science of judgment’,
thereby presupposing ‘that all thought is either true or false’ (p. 4), and that it is
appropriate to call ‘a judgment . . . true or false’ (p. 230). He rejects the objection that
the technical science of thought should not be equated with the technical science of
judging since ‘requests, commands, questions and exclamations’ are utterances which
are ‘very much unlike judgments’ (p. 2). He thinks this dissimilarity is merely
apparent. ‘Requests and commands are communications of a will or wish addressed
to those people whose cooperation appears to be necessary for their realization; they
are therefore judgments whose immediate object is the “I” of the person making the
judgment. The person making the request says of himself that he wishes, etc.’ On p. 5
he says:
As soon as we recognize them [i.e. requests, commands, questions, and exclamations] as
judgments, we see that they are either true or false. They are true if the speaker really wishes or
wills what he utters as his wish or will or really feels what he appears to feel, and false in the
opposite case, where they are then generally knowingly false and so are not really, but only
allegedly, thought.
From this it would follow that norms (which are commands) are judgments, and so
are true or false.
This is clearly wrong. A command is not thought—not even ‘allegedly’—but
willed—even if perhaps only allegedly. The fact that it is really willed cannot make it
true. Suppose that in obedience to an order given to him by his regimental
commander, a company commander in wartime orders a subordinate to shoot
prisoners of war, even though he knows that the order is contrary to international
law, and consequently does not really, but only allegedly, ‘wills’ what he commands:
his command is not false, for it would not be true even if the company commander
really wanted the addressee of his command to shoot the prisoners of war. Someone
could say to me that it is not a real command, but only the appearance of a command,
that it is a command only according to the words, but not according to their intended
meaning. The error that a command is a judgment which can be true or false may
therefore rest on the fact that a command can be given not only in the linguistic form
of an imperative, but also in that of a statement. For instance, if in our example the
 Note 136 375

company commander says to his subordinate: ‘I order you to shoot the prisoners of
war.’ Linguistically this is indeed a statement, which is true since it was actually
made. But according to their meaning, the words uttered by the company
commander are not a statement but a command and are no different from the
imperatively formulated utterance ‘Shoot the prisoners of war!’ One can perhaps try
to trace the mistaken assumption that commands—and hence norms which are
commands—are judgments which can be true or false, and that the logical principles
of contradiction and the rule of inference are applicable to them, to the fact that
commands can be issued not only in imperative linguistic form, but also in the
linguistic form of statements.
According to B. Erdmann, norms—all norms—are ‘assertions not about what is
but about what ought to be’ (1923: 8); and ‘assertions’, along with ‘namings’ and
‘problems’ [which present themselves as questions], are ‘forms of our thought’ (p. 1).
They are ‘formulated linguistically’ and are called by Erdmann ‘statements’ or
‘formulated judgments’ (p. 1). On p. 11, he speaks of ‘all kinds of judgments’ ‘which
do not state what is, but prescribe what ought to be’. He calls them ‘value—
judgments’, and among these ‘prescriptive judgments’ he includes ‘ethical’ and ‘legal’
judgments, i.e. moral and legal norms. By ‘prescriptive judgments’ he means moral
and legal norms: this is clear from the fact that he speaks of ‘norms of all kinds’ ‘in
which we think not what is, but what ought to be’ (p. 141). In norms which prescribe
something, we do not think, we will something. Also, norms are not value—
judgments. Moral and legal value-judgments are statements about the relation of
human behaviour to presupposed norms of morality and law.
Erdmann assumes that the norms which are judgments which state something, can
be true. For on p. 366 he says: ‘Just like normative logical determinations, all other
determinations of what ought to be are subject as assertions to the criteria of certainty
and logical necessity, and therefore also, if they are objectively valid, of truth.’
Determinations of what ought to be are first and foremost norms. Consequently, for
Erdmann, norms are judgments which can be true or false. Since, as Erdmann states,
logic has to ascertain ‘under which presuppositions declarative statements about the
objects of thought are generally valid’ (p.24), and since ‘general validity’ is said by
Erdmann here to be synonymous with ‘truth’—he speaks of the ‘ideal of all—
pervasive general validity or truth of declarative judgments’—the principles of logic
are applicable to norms (as declarative judgments) just as they are to statements
which are true or false. But on pp. 317f., he says: ‘The independence of a judgment
from the sentential form is also confirmed in request sentences, command sentences,
exclamation sentences and other similar sentences. As a rule, they express judgments
which according to the nature of their object do not make any claim to validity, let
alone general validity.’ This directly contradicts Erdmann’s statement quoted above
to the effect that when they are objectively valid, all normative determinations are
subject to the criteria of truth. Relying on the presupposition that command-
sentences—and therefore norms decreeing commands—make no claim to truth,
Erdmann says:
But the judgments in which we grasp practical norms or express them in formulations, and even
more so, those by which we evaluate given facts on the basis of these norms, contain emotional
elements as integrating components . . . These elements are not ‘volitive’ through and through;
they are the ‘limit of logic’ only because the intellectual and emotional operations to which they
owe their origin are not subject to logical regulation. (p. 366, stress added)

According to the wording of this sentence, it is the ‘emotional elements’ contained in

the norms which are not subject to logical regulation. But since that which is not
subject to logical regulation owes its origin to the ‘intellectual and emotional
operations’, it cannot be the ‘emotional elements’. For these elements are the
376 Notes 136~138
‘emotional operations’. It can only be the practical norms which owe their origin to
‘emotional elements’, i.e. acts of will. If this is the meaning of the sentence, then
according to Erdmann practical norms, i.e. the norms of positive morality and
positive law, are not subject to logical regulation. And then neither the principle of
contradiction nor the rule of inference is applicable. Erdmann does not say so
unambiguously. He Speaks only of ‘social norms of every kind’ (p. 493) and he says
that ‘their contradictory judgments, when they are considered binding, do not
contradict the conditions of our valid thinking’. But do they contradict each other?
And on p. 537, speaking of practical norms (which he distinguishes from theoretical,
i.e. logical, norms, pp. 360 and 537), he says ‘that their contradictory provisions
never create a logical absurdity, no matter how absurd they may appear to us’. Does
‘absurdity’ mean a logical contradiction? Consequently, we cannot assume with
certainty that these passages state that two conflicting norms do not represent a
logical contradiction.
There is another sentence which is relevant to the question whether the rule of
inference is applicable to the relation between norms: ‘It is a hopeless undertaking to
want to derive even ethical norms, let alone legal and other social norms, as
conclusions from the fundamental laws of our valid thinking’ (p. 493). The
‘fundamental laws of our valid thinking’ are the norms of logic. But the question is
whether the validity of a social norm, 1. e. a norm regulating the mutual behaviour of
people living 1n society, can be derived from the validity of another social norm. In
support of the conclusion that Erdmann gives an affirmative rather than a negative
answer to this question, we can point to a sentence on p. 360: ‘The religious, ethical
and aesthetic determinations (as well as the other social determinations derivable
from them) also possess a normative character.’ In this sentence there is implicit the
assumption that the validity of a social norm can be derived (i.e. follow logically)
from the validity of another social norm. Erdmann’s Logi/e does not give an
unambiguous answer to the question of the applicability of logical principles to
norms of morality and law.

PJote137

Martin Honecker insists on the distinction between logic and epistemology, both of
which he characterizes as branches of the theory of knowledge: ‘Both indubitably
have to do in some way with t/oin/eing’ (1942: 14). He excludes from the domain of
logic ‘all notions [i.e. significations] which express acts which are not intellectual’
(p. 108).
The linguistic forms of the problematic and the apodictic judgment can give expression to
certain practical acts of wishing and willing . . . The apodictic form can represent an expression
of will. The legislator says ‘Citizens must pay taxes’ with the implicit thought that compliance
with this will can be compelled (Pure ExPression of Will: ‘ought’). We disregard these
significations in this context, and must be careful that in the examples such cases of ‘emotional’
thinking do not slip back in. (pp. 108 f.)
If all significations which express acts which are not intellectual are to be excluded
from logic, then the principles of such a logic cannot be applicable to norms, which
are the meaning of acts of will.

PQotel38

Just as Jergensen assumes that an imperative contains an indicative factor, so C.

Wellman (who uses the term ‘directive’ instead of ‘imperative’) claims that ‘
 Note 138 377

almost every directive sentence contains some descriptive predicates . . . [E]ntirely

nondescriptive directives are understandably rare. Therefore I shall speak in the rest
of my discussion as though all directives had some descriptive content’ (1961: 230).
Thus Wellman defends the thesis that all prescriptions contain a description. Since a
description is true or false, but a prescription is neither true nor false—Wellman says
explicitly ‘There is no part of a directive which could be made true or false by any
conceivable state of affairs’ (p.231)—‘directives’ With a ‘descriptive content’ are
neither true nor false and at the same time either true or false. That is impossible.
Wellman tries to avoid this difficulty: ‘The action called for is conceived, not as
something existing which is correctly described, but as a possibility which might or
might not be brought into being. Thus the descriptive content of a directive sentence
is held in suspension as it were.’ But that is a futile attempt. For we read later: ‘The
action it might claim to describe is envisaged, but the claim to describe is not actually
made.’ How then can a ‘directive sentence’ have a ‘descriptive content’? There is no
way out of the contradiction implicit in Wellman’s thesis.
If directive sentences and descriptive sentences share the feature ‘indicative’, they
cannot be ‘fundamentally different’. But what does Wellman understand by
‘indication’? After claiming that every descriptive sentence has three features,
‘indication, quasi—comparison, and assertion—denial’ (pp. 160 f.), he says: ‘Indication
is the reference to some object or objects described by the sentence. Every
description is about something, and indication is this aboutness’ (p. 161). Thus
Wellman distinguishes between ‘description’ and ‘indication’. ‘Indication’ is not
identical with ‘description’: it is only one of the features of ‘description’. Later we
read: ‘The first feature of directive sentences is our old friend indication’ (p. 229).
According to Wellman, ‘the indicative element in directive sentences’ contains three
factors: ‘(1) the person or persons who are called upon to act; (2) a time reference;
and (3) which action is he [the person] directed to do’ (p. 230). ‘Unless the what of a
directive is specified, no specific directions are given. For this reason almost every
directive sentence contains some descriptive predicates.’ Even though Wellman
distinguishes between ‘directive sentences’ and ‘descriptive sentences’ (p.235) and
between ‘description’ and ‘indication’ (pp. 229 f.), he nevertheless characterizes the
‘indicative element’ in ‘directive sentences’ as ‘descriptive predicates’ (p. 230). That is
not very consistent and amounts to the same position as Jorgensen’s thesis that
imperatives contain an indicative factor. Wellman’s account is highly contradictory
for other reasons. Thus he says: ‘It seems clear that the prescription—prohibition
dimension is quite different from the assertion—denial dimension’ (p. 238). But he
adds: ‘A directive does more than describe an action or the speaker’s desire for that
action.’ Thus a ‘directive’, which is a prescription, is also, but not merely, a
description. But then the prescriptive dimension cannot be ‘totally different’ from
the descriptive assertion-denial dimension; and—as Wellman emphasizes (p. 168)—
‘every description . . . falls somewhere along this assertion—denial dimension’.
According to Manfred Moritz also, an ‘imparting of information’, and hence a
‘judgment’, enters into an imperative (1941: 225 f.). Admittedly Moritz rejects the
interpretation of the imperative as a judgment. But he says:
Nevertheless such an imparting of information does enter into the imperative, and this fact was
used by these theories to support the view that we are dealing with a judgment. The subject of
the command [i.e. the addressee of the command] must be made aware of what is expected of
him . . . What is asserted in the imperative can be understood as a judgment, but the imperative
element is only added to this element [i.e. the judgment contained in the imperative]. It is
superimposed on it, so to Speak.
‘What is asserted in the imperative’ is not a judgment; it is a modally indifferent substrate
which appears in the imperative in the mode of Ought. It is this—and nothing else—
which makes the addressee of the command aware of what is expected of him.
378 Note 138

Karl Engisch distinguishes between the ‘imperative’ which the legal organ posits
‘in virtue of its authority’ and the juristic ‘ought—judgment’ uttered by private
individuals (1943: 3ff. ). The latter is a genuine judgment which claims to be true,
while the former can make a claim to justice and effectiveness. But he believes that
the norm posited by a legal authority, for example, the individual norm of a judicial
decision or the general norm of a statute, ‘contains’ alongside the imperative element
an ought—judgment in the logical sense which we ‘extract’ from the judicial decision
or the statute (p. 13). On the other hand, he says the commands in a statute must be
‘transformed into ought—judgments’ in order that they may serve as justification [for
judicial decisions] (p. 6).
Alfred Jules Ayer: ‘A great many ethical statements contain, as a factual element,
some description of the action, or the situation to which the ethical term in question
is being applied . . . there may be a number of cases in which this ethical term is itself
to be understood descriptively . . .’ (1949: 21).
R. M. Hare too ascribes a ‘descriptive function’ to imperatives (1949). In so doing
he draws a distinction which is very close to that between mode and modally
indifferent substrate. He contrasts the statement ‘Mary will show you to your room,
Mrs. Prendergast’ with the imperative ‘Mary, please show Mrs. Prendergast to her
room’, and claims that what the two sentences have in common is expressed in the
words ‘Showing of her room to Mrs. Prendergast by Mary at time t’ (p. 27). These
words—which represent the modally indifferent substrate—Hare calls the ‘descrip-
tor’. That which differentiates the two sentences (the imperative and the statement)—
the mode—Hare calls the ‘dictor’. ‘The two sentences have the same descriptor but
different dictors’ (p. 29). By using the term ‘descriptor’, Hare implies that this
element common to the imperative and the statement has a descriptive function, i.e.
that it is not only the statement, but also the imperative, which describes something.
Admittedly he says of the words representing the ‘descriptor’ ‘These words are not a
sentence’, but he adds ‘They are the description of a complex series of events’ (p. 27).
On p. 35 he says: ‘ . . . inference and contradiction . . . can be studied in commands as
well as in statements . . . because these processes are to be found in the descriptive
part of sentences, which is common to both moods.’ But that which is common to
commands and statements such as ‘Paul, shut the door’ and ‘Paul shuts the door’ is
the modally indifferent substrate ‘Paul’s shutting the door’, and the modally
indifferent substrate is not ‘the descriptive part which is common to both moods’. It
is only in the statement ‘Paul shuts the door’ that the modally indifferent substrate
appears in a descriptive mode.
In his later book (1964), Hare proposes a new terminology. He calls the element
common to the imperative and the statement the ‘phrastic’, and the element by which
they differ the ‘neustic’ (p.18). He explains this terminology thus: ‘ “Phrastic” 1s
derived from a Greek word meaning “to point out or indicate”, and “neustic” from a
word meaning “to nod assent”.’ Speaking of the element he calls the ‘phrastic’, he
says: ‘The speaker points out or indicates what he is going to state to be the case, or
command to be made the case.’ From this it is clear that for Hare the imperative
contains an indicative element. He says: ‘commands, however much they may differ
from statements, are like them in this, that they consist in telling someone something
. For, as I shall show, 'commands, because they, like statements, are essentially
intended for answering questions asked by rational agents, are governed by logical
rules just as statements are’ (pp. 15 f.). The element Hare calls the ‘descriptor’ or the
‘phrastic’ cannot be a ‘description’ or an ‘indication’ since this element is modally
indifferent, and a description or indication can appear only in the mode of—real or
ideell—Is, the indicative mood. The arguments we addressed to Jorgensen’s theory
of the indicative element in an imperative also apply to the element in the imperative
Hare calls ‘descriptor’ or ‘phrastic’.
 Note 138 379

Shia Moser says: ‘An imperative sentence I of the form “B, do X!” cannot be
understood by a person who is not acquainted with the meaning of the declarative D
“B will do X”. Thus the meaning of D is implied in the meaning of I’ (1956: 187). But
he adds: ‘It is obvious that the declarative meaning which is here considered to be
implied in the imperative does not contain the moment of assertion.’ On p. 190 he
says: ‘We have found an answer to the . . . question: “What is the relationship
between I [the imperative sentence] and Dc [the declarative describing the
commanded action]?” The meaning of Dc is implied in the meaning of I.’ Thus
Moser distinguishes between ‘declarative meaning’ and ‘assertion’. How is this
possible if the essence of an ‘assertion’ consists in the ‘declarative meaning’?
Everett W. Hall rightly insists that ‘ . . . we must avoid the mistake of saying that a
normative has two components—the demand and the exemplification demanded’
(1956: 76). But he thinks that ‘ . . . normative statements bear reference to their
corresponding declaratives without asserting them.’ ‘ . imperatives themselves
embody this peculiar reference to, without asserting of, states of affairs, namely, the
one in each case commanded, the one, that is, that would be stated by a declarative
describing an act of obedience to the command’ (p. 76). To this it must be said that a
norm, whether it is formulated linguistically as an imperative or as a sollen-sentence,
contains two elements: the Ought and that which ought to be. The second element is
a modally indifferent substrate. It does not express any relation to the statement
describing compliance with the norm. Thus a norm, whether it is formulated
linguistically as an imperative or as a sollen—sentence, does not contain any relation to
a corresponding statement about behaviour agreeing wiith the norm. There does exist
a relation between the norm and the statement about the behaviour agreeing with the
norm: the relation of identity between the modally indifferent substrates appearing
in the norm and in the statement about compliance with the norm. But the statement
that this relation obtains is something completely different from .the norm.
Furthermore, the statement about behaviour agreeing with the norm stands in the
same relation to the norm as the statement about behaviour which does not agree
with the norm, behaviour which consists in a violation of, rather than compliance
with, the norm.
In a similar way to the previously mentioned authors, Theodor Heller tries to
interpret the legal norm simultaneously as an imperative and as a statement, when he
advances the—erroneous—view that the relation between condition and con—
sequence in the legal norm is not only an ought—relation, but also an is-relation (1961:
56 f.). He assumes ‘that the legal consequence is not only a consequence of the state
of affairs (the condition), but also an obligatory consequence’. But in the legal norm
which decrees it, the legal consequence is only an obligatory consequence; it is not an
existing consequence. The meaning of the legal norm is not that the legal
consequence it decrees occurs or will occur under the conditions it decrees, but only
that it is to occur even if in an individual case it does not actually occur. Heller is
presumably led astray by the usual terminology of legislators who often express legal
norms in the form of an is-statement, e.g. the sentence ‘Murder is punished by the
death of the murderer.’ Heller himself formulates this norm as: ‘The murderer is
punished with death’ (p. 57). But in so far as this sentence represents a legal norm, its
meaning is not a statement that a murderer is punished, but the prescription that a
murderer is to be punished. Heller admits that
if we take the proposition of law [he means ‘the legal fiorm’] as a mere imperative, then it
certainly may seem doubtful whether it can be logically true or false in the same sense as an
assertion-sentence [a logical statement]. But the issue changes if we consider the logical relation
of a particular proposition of law to the whole current legal order. Here it makes perfect sense
to say that proposition of law A is ‘true’ for legal order X, but ‘false’ for legal order Y. The
proposition of law ‘The murderer is punished with death’ is for example ‘false’ for presently
380 Note 138
valid German law, but was ‘true’ for previous German law until the abolition of the death
penalty.
That is incorrect. Even if we consider the relation of a particular norm to a current
total legal order, the norm does not become a statement. The norm ‘The murderer is
punished with death’—whose correct formulation is ‘The murderer is to be punished
with death’—is not false for currently valid law, but is not valid within current
German law. And it is not true for earlier German law, but was valid in earlier
German law. The validity of a norm is something completely different from the truth
of a statement.
Heller tries to justify the claim that the legal norm ‘can be interpreted as a logical
statement’ in the following way: ‘For the purposes of application of the law, the
relation of state of affairs (i.e. condition) and consequence turns out to be not only an
imperative linking. Rather, the copula has thoroughly logical characteristics,
especially since the proposition of law does not have the form of a pure imperative as
for example 1n the command‘‘You are not to kill”. ’ ‘You are not to kill 15 certainly
not an imperative, but a sollen-sentence. D‘o not kill’ is an imperative. But the sollen—
sentence has the same meaning as the imperative. Why does the relation of state of
affairs and consequence turn out to be ‘not only an imperative linking’? Heller’s
answer is: ‘The imperative in the decreeing of the legal consequence is linked to a
series of factual presuppositions in such a way that this connection can be examined
with a view to its logical signification’ (p. 58). Thus the legal norm does not represent
a categorical but a hypothetical imperative, and the imperative in the decreeing of the
legal consequence is not an unconditional but a conditional imperative, not an
unconditional Ought (like ‘Do not kill’ or ‘You are not to kill’) but a conditional
Ought. This does not change the imperative character of the legal norm at all; it does
not make it into a statement which is true or false. What Heller is driving at becomes
clear only in the following passage:
The particular proposition of law can be decomposed in such a way that the imperative appears
exclusively within the frame of the legal consequence, and we can then agree to think tacitly of
the imperative character as a property of the legal consequence or as the content of a statement
about the legal consequence, without having to mention it in the particular case.
It is impossible for the—conditional—imperative to appear only within the frame of
the legal consequence. If we formulate the legal norm concerning murder as an im—
perative, ‘Punish a person with death if he has committed murder,’ then the
imperative does not appear only within the frame of the legal consequence. The
imperative does not appear within the frame of the legal consequence at all; rather it
is the legal consequence which appears within the frame of the imperative, and this
imperative is a conditional imperative. The imperative character is not a property of
the—conditional—legal consequence, but of the whole sentence prescribing the
death penalty under certain circumstances. It 15 not possible to agree ‘to think tacitly
of the imperative character . . . as the content of a statement about the legal
consequence’, a statement which is true or false, since if the legal norm is a
prescription which is neither true nor false, it cannot simultaneously be a statement
which is true or false. If Heller thinks a legal norm can be ‘decomposed’ into an
imperative and a statement, then he is simply repeating in different words what
Jorgensen tried to do when he distinguished between an imperative and an indicative
factor; and Heller’s ‘decomposition’ is logically just as impossible as Jorgensen’s
distinction, because it represents the logical contradiction of considering the same
sequence of words to be—as a norm—neither true nor false, and simultaneously—as
a statement—either true or false, i.e. simultaneously a prescription and a description.
Recently, Rupert Schreiber has advanced the view that legal norms contain a
‘description’ (1962). He presents legal norms as ‘normative sentences’, which he
 Note 138 381

distinguishes from ‘indicative sentences’. He says on p. 15: ‘Indicative sentences are

statement-sentences; they are sentences which state something about reality. They
declare how a state of affairs really is. On the other hand, normative sentences
describe a state of the world which someone is striving for. In the case of
propositions of law, the subject of this will is the power of the State.’ On p. 25,
Schreiber compares the statement ‘Hans Huber pays Max Muller 1000 DM’ to the
legal decision (which is a normative sentence according to Schreiber) ‘Hans Huber is
condemned to pay Max Muller 1000 DM.’ (What Schreiber is thinking of is the
individual legal norm of the judicial decision ‘Hans Huber is to pay Max Muller 1000
DM.’) He says that both sentences have the ‘same component’.
On p. 76 he compares the individual indicative sentence ‘Maier pays Huber 20
DM’ to the individual normative sentence ‘It is the law that Maier pay Huber 20 DM’
(i.e. the individual legal norm ‘Maier is to pay Huber 20 DM’) and claims: ‘We can
already understand the sentence—kernel [of the individual normative sentence] “Maier
pays Huber 20 DM” by interpreting it as an indicative sentence. The description of
the situation is given by the sentence—kernel. It is only the mood which differs in the
indicative and the normative sentence.’ But the ‘same cOmponent’ or ‘sentence-
kernel’ is not a description but a modally indifferent substrate. Indeed Schreiber
himself says that the mood differs in the indicative and the normative sentence, i.e. in
statements and in norms. The sentence—kernel is not, as Schreiber formulates it,
‘Maier pays Huber 20 DM’, for that is a sentence—kernel in the mode of Is, but rather
‘Maier’s paying Huber 20 DM’. As such, it is neither indicative nor normative. On
p. 26 Schreiber states: ‘The legal decision [i.e. the individual legal norm “It is the law
that the defendant provide performance P to the plaintiff”, namely the individual
norm “The defendant is to provide performance P to the plaintiff”] contains as its
kernel the indicative sentence R(a,b,p).’ (The formula ‘R(a,b,p)’ is the expression for
the sentence ‘The defendant provides performance P to the plaintiff.’) This indicative
sentence can be true or false. Schreiber says so explicitly: ‘This indicative sentence
reads when written out in full: T[R(a,b,p)]. For the indicative sentence usually
written in the form R(a,b,p) means that the sentence R(a,b,p) is true. If we abbreviate
the property “true” to “T”, then the complete indicative sentence reads
“T[R(a,b,p)]”.’ From this it follows that for Schreiber the legal decision, i.e. the
individual legal norm ‘The defendant is to provide performance P to the plaintiff’,
‘contains’ a sentence which can be true or false. But the norm (i.e. a normative
sentence, in Schreiber’s terminology) is also according to Schreiber neither true nor
false but, as he puts it, ‘law’ or ‘not law’, i.e. ‘valid’ or ‘not valid’. It is logically
impossible for a normative sentence which is neither true nor false to contain an
indicative sentence which is true or false. Here we have the typical mistake of
considering the modally indifferent substrate to be a statement.
This mistake forms the basis of Schreiber’s claim (p. 26) that there is an
‘isomorphy’ between the individual indicative sentence and the individual normative
sentence; and on this isomorphy he rests his claim ‘that the legal decision [i.e. the
individual legal norm representing the legal decision] can be correlated with legal
norms [he means general legal norms] in the same way as individual indicative
sentences, with universal indicative sentences’ [i.e. general statements]. Schreiber’s
whole legal logic, that is, the application of logical principles to legal norms, rests on
the claim that norms contain indicative statements (descriptions). On p. 26 Schreiber
says:
If the same truths of logic are valid for legal decisions [i.e. individual legal norms], there must be
for both individual indicative sentences and legal decisions, universal sentences [i.e. general
sentences] which result from substituting variables for individual constants. Hence we can
conclude that there can be legal norms [he means ‘general legal norms’] which are formulated in
such a way that the rules of logic can be applied to them in the same way.
382 Note 139

Note 139

Gustav Radbruch claims that legal norms are imperatives rather than judgments
(1967: 29), and says on p. 14: ‘Only judgments, and not imperatives, allow
conclusions to be drawn from them.’ For it to be possible to apply logical principles,
in particular the rule of inference, to norms, Radbruch says that the imperatives must
be ‘transferred into judgment—form, and there is no obstacle to this: the imperative
becomes a judgment by inserting it as the object in the enactment clause [of a statute]
“I, the legislator, decree . . . ” ’ (p. 14). The sentences of a statute—even if they appear
linguistically in the form of statements—can have the meaning not only of
commands, but also of conferrals of power. But whichever of these two meanings
they have, they cannot, as norms (which are neither true nor false), be transferred
into judgments (which are true or false), especially when the norm has the character
of a command. Radbruch says: ‘The 1mperative becomes a judgment by 1nserting it as
the object 1n the enactment clause‘‘I, the legislator, decree . . . ”.’ But this simply
means that the legal norm which under certain circumstances decrees a certain legal
consequence to be obligatory is replaced by a sentence asserting the existence of an
act of will (an Is) whose meaning is the legal norm (an Oag/ot). But the legal norm and
this statement-sentence are two completely different linguistic constructions, and
their meaning—contents are completely different. From the fact that logical principles,
in particular the rule of inference, apply to statements about the existence of acts of
will, it does not follow that they apply to the norms which are the meaning of these
acts of will.
The claim that commands (i. e. norms which command) can be translated into
statements is also defended by Herbert Gaylord Bohnert (1945). On pp. 302f. he
says that the command ‘ “Keep this car properly lubricated”. . . appears practically
translatable into the declarative: “Either this car is properly lubricated or it won’t
run” ’ and on p 314: ‘ . “Thou shalt not kill!” might be translated: “Either society’s
survival value . . . diminishes or thou dost not (unofficially) kill” ’ or ‘ “Either thou
dost not kill or thou wilt suffer through emotional sympathy . . . with the killed, the
bereaved, etc. or through social reaCtion” ’. Thus Bohnert believes that a command,
or a norm commanding a certain behaviour, can be ‘translated’ into a sentence
asserting that if the commanded behaviour does not occur, there will occur an
unpleasant consequence for the command—addressee or norm-addressee, or as
Bohnert puts it, that a command can be translated into a ‘motivating disjunction’
(p. 304) asserting that either the commanded behaviour will occur or a ‘situation of
unpleasant character’ will occur. Behaviour in accordance with the command is
motivated by the command—addressee’s becoming aware of this statement. Bohnert
calls the unpleasant situation a ‘penalty’ (p. 306). It may be the case that the
commander, who expects his command to be obeyed, believes rightly or wrongly
that the addressee will obey the command because he will think ‘If I do not obey, an
unpleasant situation will occur.’ But the statement uttered or thought by the
commander is not a ‘translation’ of the command, but a completely different
meaning. What we have is not a translation of the command, but a replacement of the
command by a statement predicting the unfavourable consequences of non—
compliance. From the fact that logical principles apply to such a statement, it cannot
follow that they apply to the command. And Bohnert goes even further astray when
he says. T“he imperative element” is seen to be simply the unspoken penalty and to
have no necessary connection with the 1mperator’s feeling’ (p. 306), and‘. .that 1n a
behavioural sense commands function as, i.e. are declarative sentences; that the
imperative factor can also play a role in derivation; that such derivations are genuine
derivations (not merely pseudo—logical)’ (p. 303), and ‘. . . commands
behaviorally . . . are declarative sentences’ (p. 306).
 Notes 140~141 383

Note 140

Everett W. Hall says: ‘We may speak of a declarative as corresponding to a

normative. The relationship is that between a sentence stating something to be a fact
and a sentence asserting that it ought to be a fact’ (1952: 161). Hall tries to combine
the claim that certain statements correspond to certain norms with the claim that
certain statements are contained in norms. He says: ‘Normative sentences
correlate with and in some vague intentional fashion include corresponding sentences
declarative of fact’ (p. 249).

Note 141

Just as Dubislav thinks it possible to ground the applicability of a logical principle to

norms on a ‘recasting’ of demand—sentences into assertion—sentences, Ulrich Klug
believes this result can be achieved by ‘reinterpreting’ the propositional calculus as a
norm-calculus (1962). He says the following about the possibility of a logic of
norms: ‘The reinterpretation of the traditional propositional calculus with two truth—
Values into an isomorphic norm-calculus with two validity—values seems to be
particularly useful for analyses in legal theory’ (p. 125). But such a reinterpretation is
possible only if the propositional calculus with two truth—values and a norm—calculus
with two validity—values are"isomorphic’, and this presupposes that there is a parallel
or analogy between the truth of a statement and the validity of a norm. But this is not
the case—as has been shown—and mainly because truth and falsity are properties of
a statement while validity and non-validity are not properties of a norm, but its
existence or non-existence. But Klug assumes that ‘sollen, may, and being—forbidden’
can be interpreted as properties. ‘And then the usual predicate calculus can be used to
represent the logical structures’ (p. 122). If ‘sollen’ is interpreted as a property, then it
is true that between the norm ‘One is not to kill’ and the norm ‘One is to kill in war’
there is the same logical contradiction as between the statements ‘All men are mortal’
and ‘Not all men are mortal’, and the validity of the individual norm ‘Cain is not to
kill’ follows from the general norm ‘One is not to kill’ just as the truth of the
statement ‘The man Socrates is mortal’ follows from the truth of the statement ‘All
men are mortal.’ But ‘sollen’, ‘may’, and ‘being—forbidden’ cannot be interpreted as
properties. ‘One is to—or one is not to—behave in a certain way’ and ‘One may—or
one may not—behave in a certain way’ are norms. And the validity of a norm is not a
property; it is not a property of the behaviour which by reason of the norm one is to,
or one may, perform or refrain from performing; nor is a norm the property of the
person who is to, or is not to, or may, or may not, behave in this way. That which
can be a property of behaviour is the fact that this behaviour agrees or does not agree
with a norm, but not the norm with which the behaviour agrees or does not agree.
And this agreement, or lack of agreement, is a property of the behaviour, and not of
the person who behaves, or fails to behave, in this way. We can only speak of a
property of a person when his behaviour continually agrees (or fails to agree) with a
certain norm. A person has the pr0perty of being ‘truthful’ if his behaviour
continually agrees with the norm ‘One is to speak the truth’, and the property of
being a ‘liar’ if his behaviour continually fails to agree with this norm. And anyway,
in such a case, it is not the norm ‘One is to speak the truth’ which is the property of
the person; the property is ‘being truthful’, not ‘ouglot to be truthful’. For a property
of a person (such as cruelty, uprightness, white skin—colour) can only be something
which actually is, and not something which mtg/9t to be (and perhaps may not be).
Also the norm which prescribes that a person who behaves in a certain way is to be
384 Note 141

punished cannot be interpreted as the property of the behaviour or of the person. A

person can have the property of being—punished—ie looming been punished—but
not the property ‘ouglot to be punished’.
This is obvious when we are dealing with the application of a norm of civil rather
than criminal law, when the sanction which is to be performed is forcible execution
against a person’s assets, rather than punishment for his behaviour. Suppose the
following general norm is valid: ‘If a debtor does not repay the sum of money he
owes his creditor, then on the creditor’s demand, the debtor is to be forcibly
deprived of his assets and the creditor paid with the proceeds thereof.’ A judicial
decision is issued: ‘Maier, who did not pay the 500 he owed to Schulze, is to be
forcibly deprived of his automobile and Schulze is to be assigned 500 from the
proceeds of the sale thereof.’ That Maier’s car is to be seized and sold and 500 from
the sale thereof given to Schulze—this individual norm—is clearly not a property of
Maier’s or of his assets.
Klug says on p. 123: ‘The validity—value table replaces the truth—value table. The
negation of a statement becomes the negation of a norm. Hence it follows that if
norm p is valid, not—p is invalid. And if p is invalid, then not-p is valid.’ According to
this reinterpretation, there is a complete parallel or analogy between two conflicting
norms (such as ‘Adultery is to be punished’ and ‘Adultery is not to be punished’) and
two contradictory statements (such as ‘Men are mortal’ and ‘Men are not mortal’).
But that is not the case, as we shall see. For two conflicting norms can both be valid.
That is when there exists a conflict of norms, and one can no more deny the existence
of conflicts of norms than deny the existence of two forces acting in opposite
directions on a given point (or deny that these forces can be described without
contradiction). Klug admits ‘that the question must be asked whether a given calculus
is suitable for a logic of norms; but the interpretation of a calculus as a propositional
or a predicate—calculus obviously presupposes its suitability’ (p. 125). But' the
interpretation of a calculus as a ‘norm—calculus’ cannot presuppose any such
‘suitability’.
Schreiber, too, tries to justify applying logical principles to norms by interpreting
validity as a property of norms. He says: ‘We begin with the assumption that
sentences can be derived from each other, and thus that the validity of one sentence
can be derived from the validity of other sentences’ (1962: 38). He thus presupposes
that the validity of a norm is a pr0perty of the norm just as truth is a property of a
statement, and tries to bring ‘truth’ and ‘validity’ within a single genus. On pp. 63 f.
he says that legal norms have the property of ‘legal validity’. He denotes this
property with the term ‘being law’. The value ‘being law’ corresponds to the parallel
value ‘true’. ‘In order to be able to say that the value “being law” or “true” is assigned
to any sentence whatsoever of legal language, we will say that the sentence is valid.
“Valid” is thus the genus for “being law” and “true”.’ But the truth of a statement
and the validity of a norm cannot be brought together within a common genus, and
especially not the concept of ‘validity’, since the ‘validity’ of a norm is just not a
property of the norm, but its existence. If we characterize both the truth of a
statement and the validity of a norm as ‘validity’, we are using one word with two
completely different significations. From the fact that logical principles apply to the
‘validity’ of statements, it does not follow that they apply to the ‘Validity’ of
norms.
On p. 27, Schreiber suggests the possibility that the legal order itself prescribes that
legal norms are subject to the rules of logic: ‘whether our legal order does not already
demand this subjection to the rules of logic as being the will of the statute’. Certainly
the author of the constitution can posit binding norms ordering the legislators to
apply the principles of logic to the relations between legal norms, and the legislators
can do likewise for the law—applying organs; but the legal duties instituted by these
 Notes 141—142 385

legal norms cannot be fulfilled, since it is logically impossible to apply rules of logic
in this way.
Klug says (1962: 124): ‘If it is not thought possible to manage to represent the
logical structure of normative systems with two validity-values, then calculi with
more than two values can be interpreted as norm—lo ics. For a three—valued norm-
calculus it could for example be decided—as BochensId and Menne mention—that a
norm p can be completely valid, partially valid, or invalid.’ But Bochenski and
Menne (1954: 92, § 25) give the following definition: ‘Validity—value—functor =df
Valence—functor which assigns to a statement a value from a domain with more than
two values.’ They thus appear to relate a three-valued logic to statements. On p. 94,
we find: ‘The three values of the trivalent calculus are interpreted as “true”,
“possible” (or “indeterminate”) and “false”’, and on p. 95: ‘We can interpret the
different indicated values according to their magnitude and significance as degrees of
assertibility.’ The trivalent logic must therefore refer to assertions, i.e. statements.
But norms are not statements. Even the sentence on p. 94, ‘Possible interpretations of
the three validity—values could be “verifiable”, “unknown”, “falsifiable”, “wholly
valid” ’, cannot refer to norms. For norms are not verifiable, and a norm can be either
valid or invalid (since validity is not a property of the norm but its existence), and
either existent or non-existent, but not partially existent.

Note 142

A statement has to be meaningful in order to be true or false. Meaningless statements

such as ‘It was dark and a tower stood nearby’ or ‘The word “Abracadabra” is blue’
are neither true nor false, and so are of no concern to logic, since logic has to do only
with meaningful statements (or meaning—contents, to be more precise).
Some people claim that statements concerning the future, such as ‘Two weeks from
today I shall fly to Europe’, are neither true nor false at the time they are made; they
are only possible. There must therefore be a third logical value besides ‘true’ and
‘false’. If 1 is the value ‘true’, 'and O the value of ‘false’, then 1/2 must be the value
‘possible’. Cf Lukasiewicz (1930) quoted in Baylis (1936: 160). This is the passage as
translated by Baylis:
I can assume without contradiction that my presence in Warsaw at a definite moment of time of
next year, for example, noon of the 215t of December, is today decided neither in a positive nor
in a negative sense. It is thus possible but not necessary that I shall be in Warsaw at the given
time. On this assumption, the assertion ‘I shall be in Warsaw at noon on the lt of December
next year’ can today be neither true nor false. For if it were today true, then my future presence
in Warsaw would have to be necessary, and this contradicts the assumption; and if it were today
false, then my future presence in Warsaw would have to be impossible, and this also contradicts
the assumption. The proposition under consideration is thus today neither true nor false and
must have a third value different from ‘O’ or the false and from ‘1’ or the true. This value we can
denote by ‘1/2’. It is precisely ‘the possible’, which as a third value takes its place alongside ‘the
false’ and ‘the true’. It is to this course of thought that the three-valued propositional calculus
owes its origin.

In reply, it must be pointed out that the principles of contradiction, excluded middle,
and inference apply to statements independently of whether the statements relate to
the future or to the past. For these principles assert only that if the statement ‘A is B’
is true, then another statement is true or false. It is not logic which determines
whet/oer the statement ‘A is B’ is true or is false, and consequently from the point of
View of logic it is irrelevant when this is established. The two statements (1) ‘Two
weeks from today I shall fly to Europe’ and (2) ‘Two weeks from today I shall not fly
386 Notes 142—143
to Europe’ represent a logical contradiction, just as much as (1) ‘Two weeks ago I
flew to Europe’ and (2) ‘Two weeks ago I did not fly to Europe.’ The three
statements
(1) Two weeks from today, all the people living at X will be killed by an
earthquake,
(2) Two weeks from today, A will be living at X,
(3) Two weeks from today, A will be killed
represent the same syllogism as the three statements
(1) Three weeks ago an earthquake occurred at X and all the people living there
were killed,
(2) Three weeks ago A was living at X,
(3) Three weeks ago A was killed.
Statements about the future are predictions, and predictions can be just as true or
false as statements. If in 1950 astronomer X predicts that the earth will collide with
another planet in March 1961, and if in April 1961 it is established that this collision
did not take place, then it is correct to say that astronomer X made a false prediction,
that his prediction was not true. It was already false when he made it, that is, before
its falsity could be ascertained. If in 1960 astronomer X predicts that a solar eclipse
will occur on a certain day, 15 May 1962, and if it is established on 16 May 1962 that a
solar eclipse did take place on 15 May, it is correct to say that astronomer X made a
true prediction, that this prediction was true, and was so at the time he made it. The
establishment of the truth or falsity of a prediction is retroactive. It relates to the
point in time when the prediction was made.
And on this point, there is no basic difference between statements about the past
and predictions, i.e. statements about the future. For even the truth or falsity of a
statement about the past is not ascertained when the statement is made, but only
afterwards, and sometimes a long time afterwards. That a statement is true or false is
always the outcome of a later ascertainment. But if the truth or falsity of a statement
about the past is established, then this ascertainment is also retroactive: the statement
was true. Given that the principles of logic relate not to acts of stating but to their
meaning, i.e. to meaning-contents, then if it is true that an eclipse takes place at a
certain point in time, then it always was true and always will be true, whether it is the
meaning of a past act of stating expressed in the future tense or of a future act of
stating expressed in the past tense, or indeed whether there was any act of stating at
all. The point in time when an act of stating occurs is irrelevant from the point of
view of logic, since logic is concerned not with the act but with its meaning, and time
is relevant only if it is part of the meaning—content.
Predictions, i.e. statements about events which occur after the act of stating,
therefore do not require a three—valued logic. Speaking of the opinion that statements
about future events must be neither true nor false, Heinrich Scholz says that there
must ‘be an error here . . . Every sentence must possess truth or falsity as a timeless
property’ (1931: 76 f.). He continues: ‘The statement “Event E will occur on such
and such a day” is either true or false, and it is so timelessly, and consequently already
today’, and says correctly that a statement about a future event E ‘should be said to
be true (or false) if and only if the occurrence (or non—occurrence) of E at the
previously determined time and place can be unambiguously verified’ (Footnote 5/5).

Note 143

Ulrich Klug says that it is not necessary ‘to interpret legal norms as sollen-sentences.
“Sollen” need not be the basic concept of legal theory. We are free to choose the basic
 Notes 143—144 387

normative modality. When we describe a system of legal norms we can completely

replace the language of sollen—sentences (O-language) by the language of may-
sentences (P-language) or the language of prohibition—sentences (F-language)’ (1962:
117).
This is incorreCt. First of all because prohibiting is the same function as
commanding, i.e. prescribing a particular behaviour. The difference between
prohibiting and commanding consists simply in the fact that prohibiting is the
commanding of an omission. But the meaning of an act of commanding (or
prohibiting) can be expressed only in a sollen—sentence. The meaning of the command
‘Love your neighbour’ is ‘You are to love your neighbour’, not ‘You may love your
neighbour.’ The meaning of the command to pay one’s debts is ‘Everyone is to pay
his debts’ not ‘Everyone may pay his debts.’ ‘May’ means that a particular behaviour
is permitted. The norm ‘You may love your neighbour’ or ‘You may pay your debts’
cannot be violated when a person makes no use of the permission. It is only the norm
‘You are to love your neighbour’ or ‘Everyone is to pay his debts’ which can be
violated, and it is an essential element of the norms of morality and of law which
prescribe behaviour, that they can be violated. We call the norms which (according to
the Old Testament) were issued by God ‘the Ten Commandments’, and it is no
accident if these norms are expressed in imperatives or sollen—sentences: ‘Honour thy
father and mother’, ‘Thou art not to kill.’ It is true that in everyday speech ‘being
prohibited’ is also expressed as ‘not permitted’, and the norm ‘No one is to steal’ is
also formulated as ‘No one may steal.’ But this is a misleading way of speaking, as it
obscures the basic difference between ‘sollen’ and ‘may’.
Furthermore, a moral or legal authority’s ‘permitting’ something—to which there
corresponds the ‘being—permitted’ on the part of the subject of this authority—is a
secondary function, which presupposes the primary funCtion of commanding. A
moral or legal authority ‘permits’ a particular behaviour by restricting with respect to
certain individuals a command to refrain from a particular behaviour. If according to
Christian morality sexual intercourse is ‘permitted’ only between spouses—if
spouses are the only ones who ‘may’ engage in sexual intercourse—this presupposes
that sexual intercourse is forbidden (Genesis 2) and that this prohibition is restricted
only with respect to spouses. If the legislature ‘permits’ only pharmacists to dispense
poisons—if pharmacists are the only ones who ‘may’ dispense poisons—it is because
it is forbidden to other people. What it means for behaviour to be ‘permitted’, i.e. for
it to be the case that a person ‘may’ act in this way, is simply that this behaviour is
neither commanded nor prohibited. And it is only if ‘to permit’ behaviour means
neither ‘to command’ nor ‘to forbid’ it that we can say of behaviour which is
‘forbidden’ that it is ‘not permitted’, that one ‘may’ not behave in this way. A positive
moral or legal order can be interpreted according to the principle ‘What is not
forbidden is permitted’ but not according to the principle ‘What is not permitted is
forbidden.’ For it is impossible to forbid every possible behaviour, and create
exceptions only for certain kinds of acts (i.e. permit them).
And, last but not least: norms are the meaning of acts of will directed to the
behaviour of other pe0ple. The meaning of these acts—in so far as they are
commands—~cannot be expressed in any other way than by an imperative or by a
sollen-sentence equivalent to an imperative. Sollen must be acknowledged to be the
basic concept of legal theory!

Note 144

In his account of the process by which a person wills something, Christoph Sigwart
distinguishes different ‘stages’ (1889: 120—2). ‘The first moment is the representation
388 Notes 144—146

of a future state of affairs, aroused in us either from without, for instance by some
other person, or by the inner play of our own representations, and which presents
itself as a possible object of willing, i.e. raises the question for me whether I shall
direct my will to it or not.’ It is only at a later stage of this psychological process that
there occurs the genuine ‘decision of the will, by which I set the future state of affairs
as my goal, I consciously affirm it as the object of my will, I establish the project
as something which is to be brought about by my action; or on the other hand I
refuse it as a goal, I reject it, either because I am indifferent to it or because it is an
evil’. The representation of a future state of affairs, which precedes the willing, must
be distinguished from the willing since it is a different psychological function.

TQote145

The question whether logical principles, and especially the rule of inference, apply to
norms in general, and to legal norms in particular, should not be confused with the
question whether a judge is legally bound to apply a valid general legal norm to a
concrete case once he has found that there obtains concretely a set of facts specified
abstractly in the general norm as the condition for an act abstractly decreed to be
obligatory. Positive law can empower the judge not to apply the general norm in
certain circumstances, and there may be reasons of legal politics why the judge
should be given this possibility. A. G. Guest states: ‘Logic as an instrument of legal
reasoning has grown unpOpular of late . . . The chief objection to logic in the law is
usually expressed in the form that logical thought processes are rigid and inflexible
whereas legal reasoning is empirical and discretionary’ (1961: 176). He concedes that
at first sight there is considerable truth in these contentions. It is clear that there are many other
sources of decision besides simple deductions from existing principles, and that consequently
such deductions do not necessarily follow as a matter of law. The pre-existence of a body of
legal rules does not eliminate discretion on the part of the judge whether or not he should apply
them, and he is always entitled to keep his eye on other sources of law—0n the ethical code of
the community, on social justice, on history—in arriving at his decision. (p. 177)
Thus the objection to ‘logic in the law’ is not, according to Guest, that the logical rule
of inference does not apply to legal norms—Guest concedes that it does when he
uses the words ‘besides simple deductions from existing principles’—but that in fact
it is not always applied or that for reasons of legal politics it is not always desirable
that it be applied.
Nor should the question of the applicability of the logical rule of inference to
norms be confused with the question whether general norms are clear and distinct
enough to allow individual norms to be deduced from them. Speaking of ‘case—law’,
Guest (p. 177) quotes Cardozo’s observation ‘Cases do not unfold their principles for
the asking’, and speaking of statutes he says: ‘Where a statute is in question, its
provisions are frequently no less obscure.’ The question whether the logical rule of
inference applies to legal norms presupposes that thereare valid legal norms whose
formulation is clear and unambiguous. And there are—or can be—such norms, just
as there are, or can be, statements whose formulation is clear and unambiguous.

Note 146

The fact that truth and falsity are properties of statements (which are the meaning of
acts of thought) and not of norms (which are the meaning of acts of will), and that
 Notes 146—148 389

there is no analogy between the truth of a statement and the validity of a norm,
entails that the relation between a statement and its object (with which the statement
either agrees, and so is true, or does not agree, and so is false) is totally different from
the relation between a lower norm and a higher norm to which it corresponds or fails
to correSpond. And consequently this correspondence or lack thereof cannot be
called ‘truth’ or ‘falsity’. Therefore it is wrong for Werner Kaufmann-Buhler to
assert that, when on a given subject—matter a statute continues the regulation already
begun in the Constitution, the question whether the statute violates the Constitution
or not is a ‘question about truth in the logical sense’ (1960: 82). ‘For, if we disregard
the epistemological difficulties, it is logically possible to determine clearly and
unambiguously whether the legislator exceeded his powers of regulation or not.’ But
the epistemological difficulty consists precisely in the fact that statutes, i.e. legal
norms, are neither true nor false. The fact that we can determine whether a statute is
constitutional or not does not entail that we can characterize it as ‘true’ or ‘false’.
Truth and falsity are the agreement or non—agreement of the meaning of an act of
thought with the object to which this meaning (expressed in a statement) refers. This
is completely different from the correspondence or lack of correspondence of a lower
norm (which is the meaning of an act of will) with a higher norm (which is the
meaning of another act of will).

Note 147

Eduardo Garcia Maynez (1963) claims that a conflict of norms constitutes a logical
contradiction, but that such conflicts are possible only within a single normative
order. He calls them ‘intrasystematic’ conflicts, for instance within a single legal
order or a single moral order, as opposed to ‘intersystematic’ conflicts, for instance
between norms of different normative orders, such as between a legal norm and a
moral norm. Maynez assumes—as I formerly did—that intersystematic conflicts of
norms are impossible, since from the perspective of one normative order the other
order cannot be considered to be valid, or the validity of the other order must be
ignored. This is incorrect, as will be explained later (ch. 57. v). But Maynez is
perfectly right when he asserts that a conflict of norms can be resolved only by a
positive norm: ‘In any of the cases mentioned [i.e. cases of intrasystematic conflicts
between legal norms] the solution must be found in positive law and the norm
resolving the antinomy always differs from the norms constituting the antinomy’
(p. 10).

Note 148

Cf. Arthur Drews:

Concepts do not contradict each other, but only oppose each other. ‘Circle’ and ‘non-circle’ are
mutually exclusive, but one of the two concepts does not make the other one impossible. This
occurs only with two judgments one of which asserts the opposite of the other. The principle of
contradiction therefore expresses a relation between two judgments. . . . When one of two
judgments asserts what the other denies, then one of the two must be false. (1928: 229 f.)
Cf. also Alois Hofler (1922: 555).
Ch. Perelman and L. Olbrechts—Tyteca draw a distinction between ‘contradiction’
and ‘incompatibility’ (1969: 195): this distinction is connected with their concept of
‘argumentation’, which they characterize as ‘quasi-logical’ and consequently not as a
390 Notes 148—150

logical process in the strict sense of the word (cf. pp. 193 ff.). The authors give the
following case as an instance of a quasi-logical ‘incompatibility’ rather than a
genuinely logical ‘contradiction’: ‘Certain norms can be incompatible through the
fact that one of them applies to a situation which the other excludes’ (p. 203). Thus a
conflict of norms does not constitute a logical contradiction, but an ‘incompatibility’
in the sense that only one of the two conflicting norms can be observed or applied (as
the case may be). Since the two conflicting norms are both valid—in spite of the
conflict—and neither repeals the validity of the other, the difference between a
conflict of norms and a logical contradiction is so fundamental that to speak of the
relation between conflicting norms as being even ‘quasi—logical’ is misleading, and
hence quite inappropriate.

Piotel49

Stephen Edelson Toulmin gives the following example of a ‘conflict of duties’ (1960:
146 ff.): I have promised Jones to return a book to him at a certain time, but at the
appointed time my grandmother is ill and I should not leave her alone at home. And,
as the author of an ethic, he resolves the conflict in the following way:
Unless evidence is produced that the risks involved in breaking my promise to Jones are even
greater than those attending my grandmother if she is left alone, I shall conclude that it is my
duty to remain with her.——Given two conflicting claims, that is to say, one has to weigh up, as
well as one can, the risks involved in ignoring either, and choose ‘the lesser of the two evils’.
It is already presupposed in the example that it is my duty to remain with her; no
weighing up of the risks is required in order to know this. Toulmin continues:
‘Appeal to a single current principle, though the primary test of the rightness of an
action, cannot therefore be relied on as a universal test: where this fails, we are driven
back upon our estimate of the probable consequences.’
When such a conflict occurs, I am morally entitled to choose the lesser evil only if a
positive norm of the moral system which is valid empowers me to do so. If such a
norm does not exist, then the observance of one of the norms (or the fulfilment of the
duty it institutes) necessarily entails the violation of the other, i.e. the conflict is not
resolved within the sphere of positive morality. Later he says: ‘So it comes about that
we can, in many cases, justify an individual action by reference to its estimated
consequences’ (p. 148). In reply, it must be emphasized most forcefully that
justification in this context can only be a moral justification, and that this is possible
only by appeal to a positive moral norm empowering my behaviour. Toulmin says:
‘Such a reference [to the estimated consequences] is no substitute for a principle,
where any principle is at issue.’ If the estimation of the risks is no subStitute for a
grant of power by a positive moral norm, then there can be no possible justification
of my actual behaviour based on the estimation of the risks. Toulmin says finally:
‘But moral reasoning is so complex, and has to cover such a variety of types of
situation, that no one logical test (such as “appeal to an accepted principle”) can be
expected to meet every case. ’The fact that moral reasoning is complex’ provides no
moral justification for behaviour which 15 not empowered by any moral norm.

PioteISO

Christoph Sigwart says: ‘I cannot will Opposites together’ (1889: 188). But he adds:
If one were to object that someone who promises to return either victorious or dead thus wills
 Notes 150—151 391

opposites together, one would be overlooking the fact that this does not constitute a real
":together what he wills first of all 18 victory, and if this should fail, then death And he wills the
same thing 1n both cases, namely the honour involved in each situation to the exclusion of
everything else. But he cannot will both victory and defeat together.

But it must be added that the legislator can prescribe opposites in a single statute, and
that consequently if the statute expresses the will of the legislator, opposites are
willed in this case. From a psychological point of view, the legislative process extends
over time; and what occurs psychologically is that the legislator first wills A and so
commands it (i.e. posits it as a norm), then wills not-A and so posits another norm.
But not-A is valid as willed by the legislator, and thus as obligatory, without A
ceasing to be valid as willed by the legislator and thus as obligatory.

Note 151

R. M. Hare defends the view that the principle of contradiction—or as he says, that
‘self—contradiction’——is applicable to ‘imperatives’ as well as to ‘indicatives’: ‘the
term [“self—contradiction”] is equally applicable to imperatives’ (1964: 22). He says:
‘The feature to which it draws attention in commands is identical with that which is
normally called contradiction.’ He gives the following example:
The admiral and the captain of a cruiser which is his flagship shout almost simultaneously to the
helmsman in order to avoid a collision, one ‘Hard ’a port’ and the other ‘Hard ’a starboard’ . . .
It follows that the two orders contradict one another in the sense that the conjunction of them is
self-contradictory; the relation between them is the same as that between the two predictions
‘You are going to turn hard ‘a port’ and ‘You are going to turn hard ‘a starboard’. Some orders
can, of course, be contradictory without being contrary; the simple contradictory of ‘Shut the
door’ is ‘Do not shut the door’. (p. 23)

And on p. 24 he says: ‘commands may contradict one another.’

To this it must be said that the logical principle of contradiction asserts that when
two statements contradict one another, such as ‘This meadow is green’ and ‘This
meadow is not green’, then if one of them is true the other cannot be true and mast be
false. Imperatives (commands) such as ‘Shut the door’ and ‘Do not shut the door’ are
neither true nor false. Consequently, a contradiction in the sense in which it obtains
between the two statements cannot obtain between the two imperatives. One could
Speak of a ‘contradiction’ only 1n some analogical sense. If there IS such an analogy, 1t
can only be between the truth of a statement and the validity of an imperative (or
norm). For 1nstance, a father commands his son ‘Shut the door’ but the boy’s mother
commands D‘o not shut the door.’ Since both are empowered to issue commands to
the boy, both commands are valid. There exists a conflict of commands. That IS also
the case in Hare’ s first example. The helmsman lS faced with two valid commands.
Logic cannot say: If one command 1s valid, the other cannot be valid. For bot/9 are
valid. The two commands place the addressee in a conflict, and this is something
different from a logical contradiction.
What about the principle of excluded middle, Tertiam non datar? It says that since
one of two contradictory statements is necessarily true and the other necessarily
false, there can be no third statement such that the two others are both false (cf.
Sigwart, 1895: i. 150). If the principle of excluded middle were applicable to com-
mands, logic would have to be able to assert: Since one of the two conflicting
commands is necessarily valid and the other necessarily invalid, there can be no third
command such that the two others are both invalid. But logic cannot assert this, for
two conflicting commands can both be valid. Nevertheless, logic can assert: In
addition to two conflicting commands both of which can be valid, there can be no
392 Notes 151—152

third command such that the other two are both invalid. Hare says on p. 23: ‘It might
be held that the law of the excluded middle does not apply to commands. This,
however, is a mistake, if it is implied that commands are peculiar in this respect.’

Note 152

Tammelo comments:
In international legal discussions, eSpecially in utterances that come from international courts,
the importance of logic as an instrument of international legal reasoning appears not to have
been questioned. This stands in contrast to the corresponding discussions and utterances on the
municipal level where outbursts against logic as applied in the field of law have come both from
academic scholars and judges. ( 1964: 331—2)
But he also says: ‘In the stage of municipal legal thinking, numerous distinguished
juristic thinkers have taken the View that logical stringency is a virtue of law and that
the importance of logic for juristic thinking is beyond doubt.’ He cites the following
as evidence: F. W. Maitland (1903: xviii); Owen Dixon (1956); A. Trendelenburg
(1868: 178); Julius Stone (1946: 145); and George W. Paton (1946: 154), ‘who says
that “to suggest that the best law can be achieved without a prOper use of logic is
simply nonsense”’. But he also cites E. M. Konstam (1944: 232), who says—as
quoted by Tammelo— ‘We have in England a deep distrust of logical reasoning and it
is for the most part well-founded. Fortunately, our judge-made law has seldom
deviated 1nto that path; but in some of the rare occasions when it has done so, the
results have been disastrous. There are also Julius Binder’5 claim that ‘In the field of
law logic has no use’ (1925: 884) and Oliver Wendell Holmes’s famous dictum: ‘The
life of the law has not been logic; it has been experience’ (1948: 1).
Tammelo says: ‘There is a fundamental opposition of views in the matter in
question. Thus reconciliation of all these views by devising a happy formula which
would bring both together in a harmonious unity seems to be impossible’ (1964:
334). But he also says: ‘What those who really deny the significance of logic in law
unanimously assert is that law is a field in which logic does not have a proper use’
(p. 335). Concerning Judge Konstam’s opinion ‘that there is in England a “largely
well-founded” deep distrust of logical reasoning’, he says ‘This contention can be
dismissed as a petulant overstatement’, and he stresses the ‘magnificent contributions
which English thinkers have made to the development of logic, and to physical
sciences, which presuppose strict application of the principles and methods of logic’.
He believes (p. 335) that ‘the almost unbelievable state of affairs’ whereby capable
juristic thinkers ‘have been engaged in the argument’ whether logic has any
significance for law can be explained on the assumption that the parties to the dispute
are not talking about the same object. ‘Each of them may have in mind a different
concept of logic, and even a different concept of the law.’ Both words, ‘logi_c’ and
‘law’, are ambiguous, even in scholarly use. Tammelo goes so far as to assert (p. 337)
‘that the hostility of some lawyers to logic is nothing but a misdirected criticism’.
Towards the end of his paper (p. 363), Tammelo rejects the view that denies any
significance to traditional logic for the jurist. He says: ‘This logic, if properly
understood, reinterpreted, and perhaps reconstructed, can continue to be for the
lawyer, too, a pillar of our civilisation as it has been since classical antiquity.’ But he
does not exclude that we should ‘consider whether traditional logic is fully adequate
for the contemporary requirements of juristic thinking’. This does not mean ‘that
logic in its present condition is unfit to render valuable services to the lawyer. It
means only that even the most modern logic is a tool of thought which can still be
 Notes 152—153 393

made more adequate to its uses by further improvements, better adjustments, and
more thoughtful handling.’

Note 153

E. F. Carritt (1947) admits that conflicts of norms are possible. He actually speaks
only of conflicts of ‘obligations’. But an oligation can be instituted only by a norm.
He says: ‘Such obligation may indeed conflict with some other’ (p. 5). He sees the
resolution of this conflict in the decision that one obligation is stronger than the
other: ‘we shall then have to judge which is the stronger; for it is only the strongest
present obligation which constitutes a duty and to which a right of the other party, as
distinct from a claim, corresponds.’ This distinction between strong and weak duties
and the consequent distinction between ‘rights’ and ‘claims’ is untenable. A
particular behaviour is an obligation or it is not; there are no degrees of being
obligated. Carritt argues from the obligation to keep a promise, without considering
the general norm which institutes this duty. He says: ‘what can be more certain than
that a man whom I have promised to pay for an unpleasant bit of work, and who has
done it, has a claim to the payment promised? This is as self-evident as the axioms of
mathematics, the law of universal causation or the principles of logic’ (p. 2). If the
obligation to keep a promise is that self—evident, then there can be no ‘stronger’
obligation, and the correlate of the obligation to pay must be a ‘right’ and not a mere
‘claim’. But Carritt says further on:
I have in fact promised to pay a man some money on Tuesday. If I meet him on Tuesday
evening, have the money in my pocket and am not paralyzed, I have some degree of objective
obligation to pay him now, for I can do so ifI try. But . . . if I do not desire to pay him now and,
though I believe I promised to pay him this Tuesday, also believe I have a stronger and
incompatible obligation to use the money otherwise . . . I cannot try to pay him now. (p. 24)
According to this theory of Carritt’s, I am justified in not fulfilling my obligation to
repay my creditor this Tuesday. The obligation to repay him this Tuesday is repealed
by the ‘stronger’ obligation. The conflict of norms is resolved—at least for Tuesday.
But if the obligation to pay him this Tuesday is as self-evident as ‘two plus two is
four’, how can it not be my obligation to repay my creditor this Tuesday?
What Carritt is actually driving at becomes clear in the following passages. On
p. 14 he says:
The general question is whether our obligations, and consequently our duties, depend upon our
actual situation, including our capacities for affecting it and the consequences of what we may
immediately bring about, or upon our beliefs about that situation, or upon our moral estimate
of what the supposed situation demands . . . the third [View] that they depend upon our estimate
of what is morally demanded by the supposed situation, I venture to call the putative view.
And on p. 17: ‘It is only his putative duty that a man can certainly know. It is only
for doing or neglecting this [i.e. his putative duty] that he could be held morally
responsible.’ If we disregard the untenable view that a factual state of affairs—a
‘situation’—‘demands’ a certain behaviour—when in fact a state of affairs is only the
condition under which a norm requires a certain behaviour—then Carritt’s theory
amounts to the view that an individual has an obligation to do something only if he
considers he has such an obligation. That is the Recognition Theory—mentioned in
the text—according to which a norm is valid only if its validity is recognized by
those subject to the normative order. But Carritt overlooks the fact that (1) in the
case of moral norms, an individual is obligated to act in the way prescribed by a norm
he does not recognize, if other individuals, recognizing the validity of this norm,
394 Notes 153—155

approve of his behaviour when it agrees with the norm and disapprove of it when it
disagrees with it; and (2) in the case of legal norms, an individual is legally obligated
to behave in a way Opposite to that to which a legal norm attaches a coercive act as a
sanCtion, even when he does n0t recognize the validity of this legal norm (i.e. the
validity of this legal norm is independent of its being recognized by the individual).

Note 154

It is not possible to eliminate the conflict which exists between a moral order and a
legal order by supposing—as I once did (cf. my article ‘Naturrecht und positives
Recht’ (1927) 76)—that from the perspective of cognition directed to the law the
validity of morality cannot be recognized and that from the perspective of cognition
directed to morality the validity of law cannot be recognized—that one can
recognize only the validity of one or the other of the two orders—since the
simultaneous validity of the two orders (or the statement that the two orders are
simultaneously valid) represents a logical contradiction, and this is epistemologically
impossible. This argument fails because a conflict of norms is not a logical
contradiction, and consequently the statements about the validity of two conflicting
norms do not constitute a logical contradiction either. To the extent that the two
normative orders impose duties on an individual, there exists a so-called conflict of
duties, which is merely the subjective aspect of the conflict between the norm of
morality and the norm of law. This conflict exists in the realm of Ought and not—as
I said on p. 75 of the same article—in that of Is. The latter claim is correct only with
respect to the awareness of the conflict of norms.
not possible to presuppose that the moral order is not valid from the perspective of
cognition directed to law, and that the legal order is not valid from the perspective of
cognition directed to morality. It is not true that only one normative order can be
considered valid within a single sphere of validity. The opposite view—which I
advanced on p. 76 of the same article—is based on the assumption that if two
normative orders are valid for the same sphere there can occur between them a
conflict interpreted as a logical contradiction. The realization that a conflict of norms
is not a logical contradiction destroys my thesis that the uniqueness of the normative
order valid for a given sphere is a consequence of the principle of unity ‘whose
negative criterion is the impossibility of logical contradictions’.

Note 155

Georges Kalinowski is a typical representative of the theory that legal conflicts are to
be resolved by interpretation. He declares that
the system of legal norms in effect in a society . . . is a complete system in the sense that it is
made up of legal norms providing either positively or negatively a legal characterization of
every action. It is also non-contradictory in the sense that it does not contain two norms which
command and prohibit, or permit and do not permit, the same act of the same person at the
same place and time and in the same respect. (195919: 128 f.)
But in the next sentence he says:
Nevertheless, legal norms . . . are sometimes obscure 0r contradictory, even with respect to the
persons being addressed. Hence—besides discovering the law by hearing or reading—it is
necessary to clarify the obscurities, to remove the contradictions and to fill the gaps, in order
that the law may be underStood and applied. Legal interpretation consiSts in these actions, and
 Notes 155—156 395

the rules to that effect are called rules of legal interpretation. Whether they are explicitly
formulated or merely tacit—in which case they will be explicitly formulated by legal science
and by legal practitioners—they are part of the system of legal norms, even though they form a
special group within that system.
To the extent that rules of interpretation are formulated by legal science, they cannot
be legal norms, since legal science can only know and describe legal norms, and not
create them. If by ‘legal practitioners’ Kalinowski understands law-applying organs,
then what they do when they apply only one of two conflicting norms is to posit an
individual norm corresponding to one of the two conflicting norms (and not to the
other) on the pretext that they are interpreting the norms. It is possible for the legal
order to contain a general norm empowering law—applying organs to do this. But the
norm-positing function of the law—applying organs is not one of ‘interpretation’,
even if the legislator himself, misled on this point by traditional legal theory, makes
use of the term. If, as Kalinowski correctly states, a positive legal order is ‘a complete
system in the sense that it is made up of legal norms providing either positively or
negatively a legal characterization of every action’, then there are no gaps in the law
to be filled by interpretation.
In my earlier works (cf. The Pure Theory of Law (1967) 205 ff.), I too defended the
idea that conflicts of norms ‘can and must be solved’ by interpretation (p. 206). I
rejected the interpretation of a conflict of norms as a logical contradiction, since
logical principles (the principle of contradiction in particular) are applicable only to
statements which can be true or false, while norms are neither true nor false but
rather valid or invalid. But I assumed that logical principles (the principle of
contradiction in particular) were indirectly applicable to norms (to legal norms in
particular) because they are applicable to statements about the validity of norms, and
these statements can be true or false. But I can no longer maintain this position.

Note 156

In Rudolf Stammler’s discussion of ‘juristic inference’ (1911: part 8, entitled ‘The

Praxis of Law’, pp. 653 ff.), it is not clear whether this juristic inference is a function
of legal science or a function of the law—creating and law-applying organs, since
Stammler constantly conflates ‘law’ and ‘legal science’. Thus he says at the beginning
of part 8: ‘Legal science belongs to the practical sciences, i.e. its propositions
and doctrines have the essential property of being able to be applied to particular
cases occurring in experience.’ In other words, it is sentences of legal science which
are applied to concrete cases, and which therefore function as the major premiss of a
syllogism. But Stammler continues:
This is true not only of the sections of a statute and all legal norms (in the strict sense of the
word), but also of abstract juristic concepts and doctrines, including the concept of law itself. It
is impossible to have a conception of the law without including the possibility of application to
given cases in historical experience. The idea of practical applicability is thus founded on the
very essence of legal science.
These remarks clearly show that Stammler confuses the norms of law with the
propositions of legal science (which are statements about legal norms).
Hecalls ‘juristic inference’ ‘the derivation of a legal judgment from generally given
presuppositions. The task consists in perceiving something particular as dependent
on a general proposition of law . . . We also call this activity jaristic sabsamption’
(pp. 653 f.). This ‘subsumption’ consists in ‘a particular act of will’ being connected to
‘a legal rule’ (p. 654). What is involved is ‘perceiving that the particular is dependent
396 Note 156

on something which has a higher degree of generality . . . In subsumption, that which

has a higher degree of generality is . . . a conditional proposition of law which, as a
rule of a certain degree of generality, is to determine a particular legal act of will.’ On
p. 656, Stammler calls ‘juristic inference’ ‘the subsuming of an individual act of will
under the rule of a proposition of law’. Stammler understands by a ‘proposition of
law’ the expression of a willing (pp. 312, 313, 314) and says (p. 575) ‘All propositions
of law are . . . decisions in legal cases.’ A ‘proposition of law’ is thus identical for him
with a ‘legal norm’. (Cf. 1924: 520, where we read that we cannot simply say that
‘social rules are produced as legal norms’ out of particular situations; ‘rather it must
be asserted that those who posit social rules are necessarily determined to make these
commands propositions of law.’) This identification of propositions of law and legal
norms can hardly be reconciled with the claim he makes in the chapter entitled ‘The
Doctrine of the Proposition of Law’ (1911: 311 ff.): ‘The proposition of law is a
judgment’ For a judgment is the meaning of an act of thought and not of an act of
will. Therefore a juristic inference consists in applying a general legal norm—the
meaning of an act of will—to a concrete case 1n a decision, and not in applying a
proposition of legal science—the meaning of an act of thought. But Stammler claims
(p. 656) that the major premiss is a proposition of law and so ‘exhibits the form of a
conditional judgment’. A judgment in the logical sense is a statement and not a norm,
a description and not a prescription, the meaning of an act of thong/9t and not of will.
Yet Stammler asserts the latter. He says, e.g. on p. 659: ‘The legal will-content which
has to serve as major premiss in the juristic inference . . . ’. According to Stammler,
the minor premiss also represents a ‘legal will—content’ (p. 663). But he also says that
the minor premiss is a judgment. We read on p. 664: ‘In the judgment which the legal
minor premiss presents itself as, the subject is the particularity which precisely has to
be determined by way of inference. The predicate must agree with the presupposition
in the major premiss. Thus the schema is: “If P, then C.” [He means: “If P, then C is
valid.”] “A is a P.” “Therefore, C is valid for A.” ’ The minor premiss ‘A is a P’ is a
genuine statement, a judgment in the logical sense, the meaning of an act of thong/9t.
The conclusion, which Stammler calls the ‘legal judgment’, is of the same type as the
major premiss: a norm, the meaning of an act of will.
Following traditional jurisprudence, Stammler believes that this individual norm is
derivable from the premisses. According to the passage quoted earlier, a juristic
inference is ‘the derivation of a legal judgment from generally given presuppositions’.
On p. 662 we read: ‘In juristic inference, there occurs a derivation of the inferred
result. Otherwise we could not say at all that the inference was valid in virtue of the
law. ’ The validity of the individual norm in the judicial decision is derived from the
validity of the general norm and the truth of the statement that the concrete state of
affairs found by the judge is subsumable under the state of affairs abstractly specified
in the general legal norm, just as the truth of the individual statement ‘Socrates is
mortal’ is ‘derived’ from the truth of the general statement ‘All humans are mortal’
and the truth of the statement ‘Socrates is human.’
However, Stammler says right after the last quoted sentence: ‘For the present task
is not to underStand a certain representation only 1n its formal property as a legal
thought; the juristic conclusion asserts that there 1s a will which orders the present
result and that this result agrees with a conditional legal will—content But for that,
there has to be a legal rule which is thought as a legal major premiss.’ This could
mean that if there ekists a will which orders the present result, this order agrees with
the general norm if the state of affairs found by the court in the concrete case can be
subsumed under the state of affairs generally specified in the general norm and the
legal consequence ordered in the concrete case can be subsumed under the legal
consequence generally specified in the general norm. But that 1s quite different from
the claim that the order 1s derived syllogistically from the premisses.
 NOtes 157—158 397

Note 157

In order to justify the postulate ‘that new cases cannot be decided by the old
established principles’, Morris R. Cohen says:
To assume that for every case there is a preexisting (substantive) rule, is a false and vain
pretention that can only work intellectual havoc, because it leads to stretching of old terms so
that they become ambiguous or meaningless . . . We need to recognize the fact that a judge’s
decision is, and should be, based not on existing rules, which are frequently inadequate, but
rather on a sensitive perception of actual factors in the case and a mind inventive in finding just
solutions that will meet the diverse needs of life. Decisions embodying such solutions bring new
rules into the law and thus make it possible for the law to grow and to meet changing conditions
adequately. (1933: 231 f., stress added)
‘Just’ and ‘adequate’ according to the view of the competent judge in one case, but
not necessarily according to the view of another judge, or even of the parties in the
case.
A ‘new’ case is one in which the judge finds a concrete state of affairs for which
there exists no pre—existing materially determinate general legal norm attaching an
abstractly specified legal consequence to an abstractly specified state of affairs. If that
is a ‘new’ case, then every case in which the judge must dismiss the plaintiff’s claim or
acquit the accused because no state of affairs obtains to which a general legal norm
attaches a legal consequence is a ‘new’ case. But such a terminology makes no sense.
The belief that a case is a ‘new’ case clearly proceeds from the presupposition that if
the legislator had foreseen the existing state of affairs in its particularity, he would
have posited a general legal norm attaching a legal consequence (or no consequence at
all) to a state of affairs of this kind. What the legislator would have decreed had he
foreseen something or other, is a fiction. Since every state of affairs is different in
some way from every other state of affairs which comes under the concept of the
state of affairs contained in a given general legal norm, this fiction is applicable to
every concrete case, if for some reason or other the judge considers it undesirable to
apply the valid general norm to the case.

Note 158

The nature of the logical relation between a judicial decision and the general legal
norm to be applied in the decision does not depend on whether the judge is merely
empowered to decide the present case, or whether he is also obligated to do so. The
latter situation is usually the case, and this obligation is expressed in the oft-quoted
article 4 of the Code Napole’on: ‘The judge who refuses to judge, on pretext of the
silence, obscurity or inadequacy of the statute-law, may be prosecuted as guilty of a
denial of justice.’ It must first be pointed out that the word ‘Zoi’——literally translated
as ‘statute-law’—does not mean a specific statute in the narrow sense of the word,
but the valid general legal norms created by legislation or custom. The judge is under
a duty always to give a decision according to some ‘statute’ or other, or according to
customary law if this is not expressly excluded. Article 4 is quite compatible with a
judge’s refusing to decide a concrete case because he does not have jurisdiction to do
so, e.g. because the case did not take place within his judicial district.
The ‘silence’ of statute—law means that valid law does not, in the view of the judge,
contain any general legal norm attaching an abstractly specified legal consequence to
an abstractly specified state of affairs, under which the concrete state of affairs found
by the judge can be subsumed. In such a case, if the judge is not empowered by valid
398 Note 158

law to create new law for the present case, he is under an obligation to dismiss the
plaintiff’s case or acquit the accused, and that means (as was shown earlier) to decide
the case by applying valid law. But it is possible to interpret the text of article 4 of the
French Civil Code in such a way that a judge is empowered in such a case to create
new law for the concrete case. Such an interpretation leaves aside the question of the
intention of the French legislator.
The ‘obscurity’ of statute—law means that the judge is unsure whether a materially
determinate general norm of valid law is applicable to the concrete case. Since the
judge 1s competent to interpret valid law and 1s obligated merely to apply 1t as be
interprets it, he 1s obligated either to decide that there 1s no materially determinate
general legal norm applicable to the present case, or to interpret a materially
determinate general legal norm of valid law in such a way that it can be considered
applicable. That can mean that the judge is empowered by article 4 to create new law
for the concrete case under the pretext of 1nterpreting the law.
The ‘inadequacy’ of the law means that the judge considers the application of
valid law to the present case to be undesirable, impractical, or unjust. The text of
article 4 can be interpreted to mean either that the judge has to apply valid law
nevertheless, or that he is empowered to create for the concrete case new law which
he considers appropriate. It can thus be seen that the text of article 4 is ambiguous
with respect to the granting of a legal power to the judge.
Speaking of article 4 of the Code Napoleon, Ch. Perelman says: ‘This presupposes
that the judge, whose competence in the matter is established by the law, should be
able to answer whether the law is or is not applicable to the case, whatever its nature
may be’ (1963: 90). That is incorrect. Article 4 presupposes that valid law is always
applicable. Perelman does add: ‘[The judge] should, furthermore, give a reasoned
judgment, that is, indicate how he connects his decision with the legislation he is
administering.’ That means that the judge must base his decision on valid law. Thus
valid law must always be applicable to the concrete case. That the valid legal order is
applicable to all the concrete cases submitted to the courts means that this legal order
is a closed order, ‘an ordre ferme”, a view Perelman rejects in The New
Rhetoric (Perelman and Olbrechts-T-yteca, 1969) by appealing to the judge’s
obligation to decide all cases submitted to him: ‘[a] judge cannot do as a formal
logician does and limit the field of application of his system once and for all. He is in
danger of being guilty of a denial of justice if he refuses to make a decision “on the
ground of the silence, obscurity or inadequacy of statute-law” (Code Napoléon, art.
4)’ (1969: 131). But this article 4 presupposes precisely that valid law is an ‘ordre
ferme”. In his article ‘La spécificité de la preuve juridique’ (1959), Perelman says of
article 4: ‘ . . . the legal system is considered to be a complete system in which every
claim made by the parties should be able to be adjudged to be in agreement with, or
contrary to, the law’ (p. 661). If the legal order is ‘a complete system’, it is a ‘systéme
fermé’. In The Idea ofjastice and the Problem ofArgument (1963), Perelman says on
p. 90: ‘By this double obligation, the legislator has decided in advance that for the
judge the juridical system is deemed to be coherent and categorical, and juridical
technique ought to adapt itself to this double requirement.’ Article 4 does not
exclude that the valid law is ‘obscure’ or ‘inadequate’. Thus article 4 does not require
that the judge take it to be ‘coherent and categorical’. On p.65 Perelman says:
‘Though the law be incomplete, obscure or insufficient, the judge must deliver
judgment (Article 4 of the Code Napoléon).’ He adds: ‘The judge’s equity must
supplement the law, but his decision will no longer be just on purely formal grounds:
the rule applied must itself be just.’ It is only if he is empowered thereto by valid
positive law that the judge may apply a principle of justice in deciding the concrete
case. He then does not ‘supplement’ valid law; he applies it. Thus article 4 can be
interpreted in such a way that the judge always has to apply valid law, even if he
 Notes 158—159 399

applies a principle of justice in virtue of a grant of power by valid law. Article 4

requires that the judge decide the present case, even if he does not consider the
materially determinate norms of valid law to be ‘coherent and categorical’. Perelman
notes (p.90): ‘[The judge’s] business is to draw up a judgment as consistent as
possible with the provisions of the law, and such consistency cannot be determined
by the criteria of formal logic alone.’
Concerning the logical character of the grounding of a judicial decision, cf.
Endnote 162.
Morris R. Cohen (1933: 232) offers a postulate of legal politics—a postulate with
which the law may, but need not, agree—when he says:
that no set of existing rules can be adequate for all time, and that the judge and the jurist must be
inventive, it seems to me [is] not only sound, but of vital importance. But to draw anti—logical
conclusions from it seems to me to involve regrettable confusion. There is no justification for
restricting the scope of logic to deduction from rules already established or recognized.

And on p.233: ‘The jural postulate [that for every case there is a legal principle
(p. 231)] asserts not that the rule of every case is known and understood before the
case arises . . . but simply that the rule of every case is logically subsumed under
general legal rules, which may not be thought of after the decision, and which may, in
fact, never be thought of at all. A postulate that asserts no more than this cannot be
refuted.’
Concerning the subsumption of a judicial decision under a general legal norm, cf.
ch. 58. XIX ff.

Note 159

Rudolf von Ihering discusses ‘the part juristic logic plays in law’ and warns against
overestimating the logical element in law (1954: iii. 318). He comments: ‘It is
the illusion of legal dialectics which intends to confer on what is positive the halo of
what is logical, which tries to justify the given as rational before our judgment not by
showing its historical, practical or et/oical justification or necessity, but by trying to
prove its logical necessity with the help of points of view expressly invented for this
purpose.’ But what Ihering_is thinking of here is not the relation between a general legal
norm and the corresponding individual legal norm in the judicial decision applying
the general legal norm, but rather the logical deduction of positive general legal
norms from general principles or concepts. His discussion of ‘the part juristic logic
plays in law’ follows this passage: ‘The intellectual spell which Roman law has so
gently cast on us positive jurists, has extended its effects also to [legal philosophy]
when the latter accepts without examination as good coin, concepts to which the
Romanist is accustomed to ascribing absolute truth, such as the Roman concept of
property.’ (Here he quotes Trendelenburg who says: ‘There follows from the
concept of property an unlimited claim to the thing which is owned, in whoever’s
hand it may happen to be’ (1868: 211).) ‘One of the main tasks of the following
investigations is to break this spell, to show what is historical (Roman) and what is
conditioned by considerations of expediency or other influences in these concepts,
and thereby to provide a standard for their evaluation.’ Ihering’s polemic is basically
directed against so—called ‘Begriffsjurisprudenz’ (jurisprudence of concepts).
E. Meynial, who believes that logical principles apply to legal norms, also believes
it necessary to warn against an ‘excess’ of logic. He requires ‘that reason and feeling
be combined’; ‘that the jurist always remain in touch with public opinion, that his
attention . . . never allow itself to be carried away by the rigour of reasoning beyond
common sense, or if you prefer, common opinion’ (1908: 188).
400 Note 160

Note 160

A failure to distinguish—or to distinguish sufficiently—between a theoretical and a

practical (or normative) syllogism is to be found in Albert Lange:
On the other hand, the following inference would be incorrect: ‘Whoever commits theft is
punished with imprisonment; it is proven that N committed theft; therefore it is also proven
that he is punished with imprisonment.’ The major premiss can claim to be a legal rule which is
valid without exceptions, but not an expression of the facts. The culprit can, e.g., escape or die
before he is punished. The proof therefore cannot extend beyond the sphere of the major
premiss. If the conclusion is to be expressed with the same degree of precision, it would
certainly be a considerable mistake to say ‘Therefore N is punished with imprisonment’. This is
true only when it is settled that there is sufficient objective proof for punishment. Still, a part of
the truth is then lOSt, and to be complete the conclusion should read ‘Therefore N is punished
with imprisonment if the facts are proven’. (1877: 96)
Since Lange characterizes the major premiss as a ‘legal rule’ which claims to be valid
without exceptions, the sentence he formulates as a statement represents a general
legal norm. It is significant that he considers this norm to be the logical equivalent of
a statement. Lange also formulates the conclusion as a statement: ‘Therefore N is
punished with imprisonment if the facts are proven’. If this sentence were really a
statement about the facts, then it could not be a conclusion, since the fact that thieves
are to be punished does not entail that a particular thief is punished—even when the
facts are objectively proven. As Lange himself says, even if it is proven that a person
committed theft, he can escape or die before being punished; or for some reason or
other the judge can decline to punish the convicted thief. If the sentence Lange
formulates as the conclusion represents a norm i.e. the individual norm issued by
the judge ‘N is to be punished (i.e. imprisoned)’—then its validity does not follow
from the premisses formulated by Lange, the general norm ‘Whoever commits theft
is punished with imprisonment’ and the statement ‘It is proven that N committed
theft.’ Lange is clearly misled by the common juristic practice of formulating norms
as statement-sentences.
André Lalande defends the view that reason is basically normative (1963; cf.
Endnote 66 above). Consequently he attributes a normative character to what
traditional logic represents as a theoretical syllogism:
The definition of an inference becomes impossible if we do not consider it in a normative sense.
When we define a strict inference, or deduction, as ‘an operation by which we move from given
premisses to a proposition which necessarily follows from them’, it follows literally that there
can be no such thing as a false deduction; for if there is a mistake, the conclusion does not
follow necessarily from the premisses, and so it is nm a deduction. It is evident that those who
use this type of definition implicitly mean: ‘W/aen it is valid, a deduction is . . . ’ We could also
say (in the way Certain forms of arithmetic define addition or multiplication) ‘Deduction is an
operation whose purpose is to draw from given premisses a proposition which is such that it
follows necessarily from them’. In either case, the apparent absurdity can be resolved only by
expressly restoring the intentional and normative character. (p. 158)

On this View, the syllogism whose conclusion is the statement ‘Socrates is mortal’
should be formulated ‘If someone considers it true that all human beings are mortal
and that Socrates is a human being, then he is to consider it true that Socrates is
mortal’; for it is actually possible—even if it is a mistake—to consider it true that
Socrates is immortal. In the correct thought—process, the premisses are statements
about acts of thought having a certain content and the conclusion is a norm which
decrees an act of thought having a certain content to be obligatory. But it is not
possible for a norm to follow logically from two statements serving as premisses. No
Ought can follow from statements about an Is. Furthermore, the logical rule of
 Notes 160—161 401

inference does not concern acts of thought. A man who thinks ‘All humans are
mortal’ and ‘Socrates is human’ can certainly think ‘But Socrates is immortal.’ But
logic is not concerned with these acts of thought, but with their meaning—contents.
Logic states: It is only if it is true that all humans are mortal and that Socrates is
human, that it is necessarily true that Socrates is mortal. It is the truth of a meaning-
content which follows necessarily, not the act of thought whose meaning it is.
Lalande’s reasoning rests on a failure to distinguish between an act and the meaning
of this act.

Note 161

R. M. Hare tries to justify the applicability of the rule of inference to imperatives in

the following way (1964: 24 ff.): If someone were to derive the conclusion ‘Socrates
is immortal’ from the premiss ‘All human beings are mortal’ and ‘Socrates is human’,
this would be a sufficient reason for believing that he had misunderstood one of these
sentences. That is incorrect. He can have understood these sentences and yet have
drawn a logically wrong conclusion. From the standpoint of logic, it is irrelevant
whether or not a person understands the sentences constituting the syllogism. The
principles of logic do not concern acts of thought, but the meaning of these acts.
Hare believes that the fact that the word ‘all’ is used not only in statements but also
in imperatives (commands) implies that
there must also be entailment—relations between commands: for otherwise it would be
impossible to give any meaning to these words as used in them. If we had to find out whether
someone knew the meaning of the word ‘all’ in ‘Take all the boxes to the station’, we should
have to find out whether he realized that a person who assented to this command, and also to
the statement ‘This is one of the boxes’, and yet refused to assent to the command ‘Take this to
the station’, could only do so if he had misunderstood one of these three sentences. If this sort
of test were inapplicable the word ‘all’ (in imperatives as in indicatives) would be entirely
meaningless. (p.25)
The psychological fact that someone misunderstands one of the sentences does not
imply that the word ‘all’ is meaningless. Furthermore, it is perfectly possible for
someone to assent to the general command ‘Take all the boxes to the station’ and to
the statement ‘This is one of the boxes’ and nevertheless not assent to the individual
command ‘Take this box to the station’, for example, because after assenting to the
general command and the statement he discovers that the box is too heavy for him,
even though he correctly understands all three sentences. But even if this is not the
case, it is perfectly possible for him to assent to the general command (i.e. address to
himself the command ‘Take all these boxes to the station’) and yet not take a specific
box to the station, and not assent to the individual command ‘Take this box to the
station’, and not address to himself the individual command ‘Take this box to the
station.’ For from the general command addressed to him, the individual command
addressed to him does not follow, since it can only be the meaning of an act of will
addressed to him and this act of will cannot be reached by way of a logical operation.
But the most important point is that Hare’s example does not prove at all that the
rule of inference is applicable to norms (i.e. that the validity of an individual norm
can be logically derived from the validity of a general norm), since the individual
norm he mentions ‘Take them to the station’ is already presupposed to be in
existence (i.e. valid), and it is only the addressee’s assent to this norm which is
missing. But the question is whether this individual norm follows logically from the
general norm ‘Take all the boxes to the station.’ If the individual norm has already
been issued, then its validity can be founded on that of the general norm; but this
402 Notes 161—162

does not mean in any way that its validity follows logically from that of the general
norm. Cf. ch. 58. Ix.
The following psychological point should also be made about Hare’s example: The
alleged syllogism ‘Take all these boxes to the station; This is one of the boxes;
Therefore also take this box to the station’ differs from the alleged syllogism ‘All
thieves are to be imprisoned; Schulze (who stole a horse from Maier) is a thief;
Therefore Schulze is to be imprisoned’ in that in the latter the general norm serving as
major premiss is the meaning of an act of will of the legislator, while the minor
premiss and the conclusion are acts of thought and will of the judge, i.e. another
person than the legislator. In Hare’s example, the premisses and conclusion are acts
of thought or will of the same person. And so the act of will whose meaning
constitutes the conclusion can be implicit in the act of will whose meaning constitutes
the major premiss. But the judge’s act of will whose meaning is the conclusion cannot
be implicit in the act of will whose meaning is the major premiss, since it is another
person’s act of will. If we assume that the validity of a norm is conditional upon its
recognition by the addressee, then the fact that the act of will whose meaning is the
individual norm [is or can be implicit] in the act of will whose meaning is the general
norm is irrelevant for the question of logical inference. [Translator’s Note: The last
sentence is incomplete in the original German; the bracketed words are a conjectural
reconstruction.]
Robert G. Turnbull tries to show ‘that the logic of imperatives is no different from
the logic of indicatives’ (1960: 375). According to Turnbull, the imperative ‘Do x’
means ‘Then you will do x’ (p. 374). That is, he equates the meaning of an imperative
with that of an indicative. Basically this amounts to the same thing as the previously
mentioned attempts by Jorgensen and Dubislav to justify the applicability of logical
principles to imperatives. To prove his thesis, Turnbull makes use of Hare’ 5 example
‘Take all the boxes to the station. ’He claims that this 1mperative is synonymous with
the statement ‘If you wish to keep your job, then you will take all the boxes to the
station’ (pp. 380 f.). But the unconditional imperative (or command) addressed to a
specific individual and the conditional statement about his future behaviour have—
or are—two completely different meaning-contents. The command can be issued
without the commander wanting to say to the addressee what the statement asserts,
for instance when the commander knows that the addressee is quite indifferent as to
whether he keeps his job or not. The command can be valid and the statement be
false. For the addressee can want to keep his job and nevertheless not take all the
boxes to the station. Equating an imperative with a statement is therefore excluded.

Note 162

Manfred Moritz denies that imperatives can be logically derived from imperatives,
i.e. that the validity of one imperative can be derived from that of another. He begins
with the following assumption:
The logical rules of inference are valid for sentences which are true or false. The condition for
the validity of an inference is that the conclusion should be true if the premisses are true. But it
is impossible in principle for this condition to be satisfied when the premisses are not judgments
but imperatives. For imperative premisses are never true, since they are neither true nor false.
The same is correspondingly also true of the conclusion, of this ‘derived’ imperative: it can be
neither true nor false. The presupposition for the application of logical rules of inference to
imperatives does not obtain. (1954: 81)
In my article ‘On the Practical Syllogism’ (1973: 258—60), I continued:
 Note 162 403

Thus Moritz assumes that there cannot be practical syllogisms. He gives as an example (from
Jorgen Jergensen, ‘Imperatives and Logic’, Erkenntnis (7) 4; p. 288): ‘Keep your promises; This
is a promise of yours; Therefore, keep your promise’. Of this example he says (p. 82): ‘We
cannot derive the imperative “Keep your promise” from the imperative “Keep your promises”
and the judgement “This is a promise of yours” ’. But Moritz thinks it logically possible that ‘a
judge is able to found his judicial decision on the law’ (p. 83). His problem, as he describes it
(p. 84), is ‘how, in fact, judicial decisions can be “founded” by means of the existing laws’. On
p. 87 he says in so many words that ‘Practical syllogisms are impossible’, and adds that he seeks
to show ‘that the judicial decision can be “motivated” with the aid of an imperative’. By
‘motivated’ he obviously means ‘founded’, but not logically derived. He therefore sees that the
problem in hand is the founding of the judicial decision by means of the law—which means,
however, what he does not seem to see—the founding of the validity of the individual norm to
be posited by the judge by means of the validity of the general norm he has to apply. For he says
on p. 108: ‘Even without the derivation of such an individual imperative from the general law, it
can be decided whether the individual enjoined under the norm has followed the general
imperative or not. The detour by way of an individual imperative is not necessary; and as shown
earlier, it is also not possible.’ But this ‘detour’ is necessary, and is no detour, for it is indeed the
founding of the validity of this imperative, i.e. of that individual norm, which is in question.
That this validity cannot be logically inferred from that of the general norm does not prevent
the validity of the individual norm from being founded on that of the general one. That is,
indeed, precisely what Moritz is trying to show. We decide that the judge has ‘followed’ or not
followed the general imperative by deciding whether the content of the individual imperative he
posits is in accordance with that of the general imperative he has to apply. Moritz himself says
(p. 127): ‘A judicial decision is motivated by the law [and that means ‘founded’, for him], if
there is justification for saying that the judge has followed the law, if he announces this decision
(i.e. a decision of specific content) and there is therefore justification for saying that this judicial
act is a following of the law.’ And he adds, in parentheses: ‘If the judge happens to announce a
decision with another content, he has not performed the act enjoined upon him’. It is thus quite
essentially a matter of the content of the judge’s decision. It is indeed the founding of this
decision which is in question—as Moritz correctly lays down at the outset in presenting his
theory. The determination of what the general imperative (or general norm) prescribes, is in fact
admittedly—as Moritz emphasises—an act of the judge; but an act having a quite determinate
content, defined in the general norm. What the general norm is aiming at is the validity of an
individual norm in accordance with the general norm; the law only prescribes an act of the
judge, because' this individual norm can be valid only if it figures as the meaning of a judicial act,
an act of will on the part of the judge; just as the general norm, of course, is valid only if it is
posited by an act of the legislator, whose meaning is this general norm. The problem is the
nature of the relation between the validity of two norms, one general and the other individual.
What is essential is that the individual norm posited by the judge should accord with the general
norm posited by the legislator. It is this, indeed, that constitutes the ‘founding’ of the validity of
the former by that of the latter. That the judge ‘follows’ the general norm is a secondary matter,
i.e. merely the condition under which the individual norm he posits is in accordance with the
general norm contained in the law. That the judicial decision must be ‘motivated’ by the law—
as Moritz puts it—is a very questionable piece of terminology. For by ‘motivate’ we mean in
ordinary usage that the judge posits the individual norm corresponding to the general one
because he wishes to conform to the general norm he is aware of. Moritz—in conflict with
ordinary usage—holds the expression ‘the decision is founded’ to be synonymous with the
expression ‘the decision is motivated’. For he says on p. 110: ‘The decision is founded by the
law when it falls under the concept of the decision set forth in the law. To put it otherwise, the
judicial decision is motivated by the law, when it belongs to the class of decisions set forth in the
law.’ But the decision is ‘motivated’ by the law only when the will of the judge to conform to the
law he is aware of, leads him to make his decision in accordance with the law. The ‘motives’ he
has in positing the individual norm which accords with the general one, are irrelevant. He can
posit it, not because he wishes—as Moritz says—to ‘follow’ the law, but because, say, he
considers the individual norm he posits to be just in the concrete case. Moritz says (pp. 115—16):
‘In the juristic context it seems to be enough if the act enjoined is performed. It does not seem to
be necessary to perform the enjoined act because it is enjoined. In general the mere coincidence
of enjoined and performed act seems to be sufficient’; it is sufficient, that is, if an individual
404 Notes 162—163

norm in accordance with the general one is posited and comes into effect, whatever be the
motives it is done from. Not only does this seem so—it is so. And the coincidence in question is
that between the general norm to be applied by the judge, and the individual norm posited by
him 1n this application.
If we begin with the assumption that judicial decisions in concrete cases ought to be
just, then we must come to the conclusion that a judicial decision cannot be reached by
way of a logical deduction from a positive general legal norm if this general legal
norm is not just. But this does not say anything about whether it is possible to
deduce it from a general norm which is just. Hessel E. Yntema speaks of ‘the
impotence of general principles to control decisions’ (1927: 480). But what he means
is only the inability of general norms of positive law to determine judicial decisions.
He insists ‘that decision is reached after an emotive experience in which principles
and logic play a secondary part’. And on p. 481: ‘To say that the rule of law is law,
that by reference to abstract rules we may control decision and determine whether
cases have been “correctly” decided, is in effect to assert the social practicability of
the decision, if found “correct”, without attempting to ascertain whether it is useful.’
He had already said earlier:
But law is not logic, however usefully logic may be made to serve the ends of law. And any
system of thought so fragmentary as to base the actual statement or reform of law upon purely
logical deductions from combinations of abstract symbols without careful analysis of the
practical purposes of legal traditions and institutions considered with reference to the concrete
case is not merely obscurant but socially dangerous. Only by constantly checking the
hypotheses resulting from logical manipulations against observation and experience can we
hope to approximate practical truth or justice in the administration of law. (p. 477, stress added)

What Yntema is driving at is a postulate of legal politics: for decisions to be just, they
must not result from purely logical deductions from the valid general norms of
positive law. If the goal of law—application is ‘justice’, then in deciding a concrete case
a judge must apply a principle he considers to be ‘just’, and so he must apply a
general norm of positive law only when he considers it to be just. For a decision can
be judged to be‘just’ only if 1t agrees with a general principle of justice. Thus 1t is not
a question of the‘impotence of general principles to control decisions’ This has
nothing to do with the question whether judicial decisions can be logically deduced
from general norms of positive law or of justice.

Note 163

Otto Brusiin gives the following answer to the question whether the judicial decision
is a syllogism: ‘It all depends on what is meant by “judgment”. If we mean an act of a
superior, objectified in linguistic form and containing its own justification, then this
cannot be exhaustively characterized by the word “syllogism”. But if we only want
to emphasize the essential intellectual-formal point, then this characterization may
often be accurate’ (1951: 106). But the ‘essential point’ of a judicial judgment 15 not
something ‘intellectual-formal, but an act of will. Brusiin’ s enquiry is concerned
only with juristic thinking. He asks: ‘Are there deductive relations in juristic
thinking?’ (p. 104) And he considers the general and individual norms issued by legal
authorities to be products of juristic thinking. On p.44 he says: ‘We distinguish
between the juristic thought—process and its products, the objectivations.’ And on
p.49: ‘The objectivations of juristic thinking are often fixed in written form in
modern civilized states . . . These written objectivations are, e.g. , statutory texts, texts
of judgments, written administrative decisions, lawyers’ documents and writings.’
But statutory texts, texts of judgments, and written administrative decisions are the
 Notes 163—164 405

linguistic expression of the meaning of acts of will: they are not objectivations of
juristic thinking, i.e. the meaning of acts of thought.
As far as judicial decisions are concerned, Brusiin’s view is that the essential point
of legal adjudication is ‘to establish whether some human behaviour is legal or
illegal. This is ‘the functional task of judicial activity’. ‘The juristic, thinking of the
judge occupies a key position in the total system of legal organization’ (pp. 29f. ). The
‘establishing’ of the state of affairs 1s indeed, from a logical point of View, a judgment
which can be true or false. But from a legal point of View, what matters in the final
analysis is not the truth of this meaning, but the fact of the act of establishing. The
functional task of legal adjudication is a decision—the issuing of an individual norm
either ordering the performance of a coercive act as legal consequence or refusing
such an order. This order or refusal is the meaning of an act of will. The establishing
of the existence or non—existence of the illegal state of affairs is the condition for the
judge’s decision. It is not the judge’s thinking, but his willing which occupies a key
position in the total system of legal organization.
Brusiin decisively denies that the decision of a criminal court has the character of a
syllogism. He says:
In the important area of modern criminal law, a guilty judgment is not a syllogism: the judge
always has a certain degree of freedom of movement, and the concrete sanction of punishment
does not follow with necessity from the premisses. The only thing which follows from the
premisses—provided there are no legal grounds for exemption from punishment—is that a
conviction ought to be pronounced and that the sanction ought to keep within the bounds of
the latitude set down by the criminal code. (pp. 107 f.)

Such latitude is not always given; e.g. if a statute prescribes execution by hanging for
murder. But if such latitude does exist, then the reason why the validity of the
individual norm in the judicial decision cannot be obtained by way of a logical
inference from the validity of the general norm and the judge’s finding of fact is not
the fact that more than one judicial decision can agree with the general norm which,
for example, prescribes for theft a punishment of between one and five years’
imprisonment. For if one judge punishes a thief with one year’s imprisonment and
another judge another thief with three years’ imprisonment, the first judge can take
as major premiss the valid norm that theft is to be punished with one year’s
imprisonment, and the other the valid norm that it is to be punished with three years’
imprisonment. For both norms are contained in the norm that theft is to be punished
with between one and five years’ imprisonment. Thus the reason why there exists no
syllogism is that—even when the judge does not have any discretion as to the nature
and amount of punishment—the individual norm in the judicial decision is the
meaning of an act of will and not of an act of thought.
The Swedish legal philosopher A. Vilhelm Lundstedt rejects the normative
syllogism (1956). But, following another Swedish legal philosopher, Axel Hagerst—
rom, he starts from the assumption that the object of legal science is not norms (p. 23)
but value-judgments which can be neither true nor false (p. 45), and he assumes that
value—judgments form the premisses and conclusion of the inference he considers to
be logically impossible (p. 48). Cf. the article by one of his disciples, Karl Olivecrona
(1959); cf. also Leonard Boonin (1964).

Note 164

Whether there is in Aristotelian logic anything like a normative or practical syllogism

is most doubtful at the very least. Takatura Ando states that ‘the concept “practical
syllogism” does not appear in Aristotle’s works except in an incomplete expression in
406 Note 164

Eth. Nic. VI, 12, 1144a 31’ (1958: 274). He comments: ‘This is a strange fact for a
philosopher who analysed the forms of the syllogism in his logical works so
elaborately.’ The passage referred to reads: ‘The syllogisms which deal with acts to be
done are things which involve a starting~point, viz. “since the end, i.e. what is best, is
of such and such a nature”, whatever it may be (let it for the sake of argument be
what we please); and this is not evident except to the good man.’ Little can be
obtained from this passage.
On the other hand, there are two passages, one in the Eudemiun Ethics and the
other in the Nicomuchean Ethics, from which we might be able to conclude that there
can be no practical syllogism. The passage in the Eudemiun Ethics reads:
‘Does then excellence make the aim, or the things that contribute to the aim? We say the aim,
because this is not attained by inference or reasoning. Let us assume this as a starting-point. . . .
No art asks questions about the end. . . . If, then, of all correctness either reason or excellence is
the cause, if reason is not the cause, then the end (but not the things contributing to it) muSt owe
its rightness to excellence.’ (11.11 .1227b22—35)
And the passage in the Nicomucheun Ethics: ‘Neither in that case is it reason that
teaches the first principles, nor is it so here—excellence either natural or produced by
habituation is what teaches right opinion about the first principle’ (VII.8.1151a17—18).
Since virtue is based on our will, the passages from Aristotle mean that the correct
goal of our behaviour—the norm prescribing how we are to behave—is the meaning
of an act of will and not of an act of thought, and since this act of will cannot be
reached by way of a logical thought—process, there cannot be any syllogism whose
conclusion is an individual norm, i.e. there cannot be any ‘practical’ syllogism.
Furthermore, what is interpreted as a practical syllogism in Aristotle is not a
syllogism in the logical sense. Thus Ando (p. 280) cites the following example of a
‘practical syllogism’: ‘Such and such a man should do such and such a thing; I am_
such and such a man; this 1s such and such a thing; I should do this.’ The passage
reads:
Since the one premiss or judgment is universal and the other deals with the particular (for the
first tells us that such and such a kind of man should do such and such a kind of act, and the
second that this is an act of the kind meant, and I a person of the type intended), it is the latter
opinion that really originates movement, not the universal; or rather it is both, but the one does
so while it remains in a state more like rest, while the other partakes in movement. (On the Soul
111.11.434a16—21)

But it is quite doubtful whether one can conclude from this explanation of Aristotle’s
that he believed in a practical syllogism in the true sense of the word. For Aristotle
admits the possibility that ‘inclination triumphs over will’. If that is the case, then
even if the general norm serving as major premiss is valid and the statement serving as
minor premiss is true, nevertheless 1t is possible that the individual norm serving as
conclusion ‘I am to do this’ is not valid, because the will of which this norm is the
meaning is lacking, and without the will the norm cannot be valid.
Teichmuller (1879: 88) refers to a passage in the Movement of Animals which
reads:
Here [in the practical realm] the two prOpositions result in a conclusion which is an action—for
example, . . . every man ought to walk, and . . . one is a man oneself, straightaway one walks;
or . . . no man should walk, one is a man: straightaway one remains at rest. And one so acts in
the two cases provided that there is nothing to compel or to prevent. Again, I ought to create a
good, a house is a good: straightaway he makes a house. I need a covering, a coat is a covering: I
need a coat. What I need I ought to make, I need a coat: I make a coat. And the conclusion ‘I
must make a coat’ is an action (VII.701 a1 1—20).
 Notes 164—165 407

It is clear that the first three examples are not syllogisms. The fact that a human being
walks or stays or builds a house is not a logical inference, especially if we take into
consideration the restrictions in the first two examples: ‘if there is nothing to compel
or to prevent’. The claim in the last example ‘The conclusion “I must make a coat” is
an action’ can only be understood—if at all—to mean that the act of commanding or
norm-positing of which the sentence is the meaning is to be understood as
the conclusion. Teichmiiller says expressly that in Aristotle the conclusion is ‘the
decision and the act’. He refers (p. 44) to an example of a practical syllogism in the
Nicomac/oeam Et/oics (VII.3.1147a29—31) in which the major premiss reads ‘Everything
sweet ought (58?) to be tasted’, and the minor premiss is the theoretical statement
‘This is sweet.’ From these premisses there allegedly follows ‘the decision and the act
. . if the person can have the food and is not prevented from h‘aving it’. Thus, on
Aristotle’s view, ‘the necessary consequence is that a man who is capable of doing so
and is not prevented by anything, immediately makes a practical application of the
general principle to the individual case’, i.e. he tastes the sweet food. But clearly there
is no syllogism here. For the norm serving as major premiss can be valid and the
statement serving as minor premiss can be true, and nevertheles an individual norm
prescribing that a certain person ought to eat the sweet food may not be valid, if there
occurs no act of will of which this norm is the meaning. Not to mention the
possibility that the person in question does not eat the food, a possibility foreseen by
Aristotle, since he adds the restriction ‘who can act and is not restrained’; or even
that he dislikes sweet food. Aristotle gives this account in the chapter of the
NicomaC/oecm Ethics which deals with ‘continence and incontinence’ and which
basically has a psychological and not a logical character. But in the course of this
account, Aristotle says: ‘Since there are two kinds of propositions, there is nothing to
prevent a man’s having both and acting against his knowledge, providing that he is
using only the universal and not the particular; for it is particular acts that have to be
done’ (VII.3.1146b35). The starting point for Aristotle’s discussion is the Socratic
question whether someone who knows the good necessarily does it, and Aristotle
answers in the negative. This is a psychological and not a logical problem. It is the
question whether a general norm is observed in a concrete case, not whether the
validity of an individual norm follows logically from that of a general norm.

Note 165

The prevailing View is that the validity of an individual legal norm can be derived
from that of a general legal norm by means of a logical operation. A particularly
typical example is Lorenz Briitt:
The proposition of law as such contains the abstract state of affairs as a condition and the
abstract legal consequence as the element subject to the condition; on the other hand, the
conCrete state of affairs concerns an empirical event which took place at some place and time in
experience, while the concrete legal consequence enjoins the behaviour‘ which the person in
question has to perform. (1907: 39)
The concrete legal consequence is thus a command. Later he says:
The concrete legal consequence thus follows syllogistically from the proposition of law and the
concrete state of affairs according to the first Aristotelian figure and mode, in which the abstract
legal consequence is P (the predicate of the major premiss), the abstract state of affairs M (the
middle term), the concrete state of affairs 8 (the subject of the minor premiss), and the desired
concrete legal consequence C (the conclusion):
408 Now 165

MisP
SisM
(SisP)=C

Here are a number of other examples:

You may call the (judicial) process one of analogy or of logic or of philosophy as you please. Its
essence in any event is the derivation of a consequence from a rule or a principle or a precedent
which, accepted as a datum, contains implicitly within itself the germ of the conclusion . . . The
method tapers down from the syllogism at one end to mere analogy at the other. (P. 49)

Julius Stone addresses the case where ‘the court had available two alternative
syllogisms’ and says ‘The choice between competing starting points cannot be made
by logical deduction’ (1946: 139). That is correct. But it presupposes that a normative
syllogism is possible. Later Stone says (p. 140): ‘The syllogism does not come into
play until after the choice was made.’

Claude Du Pasquier says:

Applying a rule consists in transposing to a particular concrete case the decision contained in
the abstract rule. The judge in a criminal case who convicts someone of fraud applies to a guilty
person the rule which punishes fraud . . . This application involves a passage from the abstract to
the concrete, from the general to the particular, in short a deduction. The instrument fOr this is
the syllogism. (1948: 126)
And on p. 127: ‘The legal syllogism can be just as simple [as the theoretical syllogism
“All men are mortal—Paul is a man—Therefore Paul is mortal”]. For example:
according to art. 457 of the Swiss Civil Code “The [deceased’s] descendants are the
immediate heirs”—Paul and John are the deceased’s descendants—Therefore Paul
and John are the heirs.’ But Du Pasquier’s example is not of a normative but of a
theoretical syllogism. The major premiss and the conclusion are—as is clear from the
wording—statement-sentences, which can be true or false, and not valid norms.

Arthur N. Prior gives the following example of a normative syllogism: ‘If any debt
falls due at any time, it ought to be paid at that time. And this debt falls due now.
Therefore, this debt ought to be paid now’ (1949: 41).

Paul Foriers (1961):

Every judgment, every judicial decision presents itself as the conclusion of two premisses, and
consequently can be resolved into a syllogism: the legal norm (i.e.. the objective general rule)
constitutes the major premiss; the description of the facts in the particular case made in a certain
way, usually accompanied by a finding which implies their relevance, conStitutes the minor
premiss; and finally the conclusion which constitutes the decision properly Speaking, applying
the operative part of the rule . . . It is obvious that the real difficulty is not in drawmg the
conclusion from the major and minor premisses, but in establishing with certainty what the
premisses are. (p. 51)

C. Perelman formulates ‘t‘he three components of a deontic syllogism’ (1963: 40) in

the following way:
(a) the rule to be applied, which provides the major term of the syllogism; .
(b) the quality of the person—the fact of regarding him as a member of a given category—
which provides the minor term of the syllogism; . .
(c) the just act, which must be consistent with the concluswn of the syllogism.

The ‘conclusion of the syllogism’ is a norm and not an act; in the case of a judicial
judgment, it is an individual norm With Wth, by its very meaning, an act ought to
 Note 165 409
agree. But Perelman supposes that this norm can be reached by way of a logical
inference. On pp. 41 f. he explains:
An act, to be jusr, must give effect to the conclusion of a syllogism in which the major term is
constituted by a formula of concrete justice or by one of its consequences, and the minor by a
qualification which incorporates a being in an essential category. The application of a theoretical
law to particular facts presents exactly the same structure. The major is constituted by a
universal law, the minor by a qualification and the conclusion will be an assertion abOut
reality.—Take the classical example of the theoretical syllogism:
All men are mortal
Now Socrates is a man
Therefore Socrates is mortal.
The structure of this syllogism differs from that of a deontic syllogism solely [stress added] in
the fact that its major term and its conclusion assert, not what ought to be, but what is.

In other words, the validity of the individual norm follows logically from that of the
general norm, just as the truth of the individual statement follows from that of the
general statement. This is surprising, since Perelman insists that ‘everything subject
to theoretical laws is outside the scope of human will no less than of human
evaluation, which is to be regarded as one of the ways of acting on a will that is free.’
Since the norm which constitutes the conclusion of the ‘deontic’ syllogism is the
meaning of such a will that is free, and since the act of a free will cannot be reached by
way of a logical thought-operation, there can be no such thing as a ‘deontic
syllogism’.

Morris R. Cohen (1961):

The end of law, the administration of justice, cannot be accomplished by empiricism, i.e. by
letting the judge decide each case on its merits. Such a hand-to-mouth existence will not do; for
people must know with some degree of certainty befOrehand what they may and what they may
not do. Hence judges or magistrates must, even in the absence of legislation, be bound by rules,
so as to eliminate as far as possible the personal equation and make the law uniform, definite,
and certain. This requirement that the law should be rational, i.e. deducible from established
principles, compels the law to assume the form of a deductive science. But this deduction soon
becomes an end in itself and is frequently pursued in flagrant contradiction with the ends of
justice. (p. 142, stress added)

Hence it follows that Cohen admits that a judicial decision is logically deducible
from a positive general legal norm, but he supports the postulate of legal politics that
a judicial decision ought not to result by way of such a deduction and believes that in
fact it does not result in this way when the prospective judicial decision comes into
conflict with the requirement of justice. The fact that in this passage Cohen
characterizes the law as a ‘science’, even though previously he clearly presupposes it
to be a normative order, is not relevant here. What 1s important here 13 the fact that he
assumes that judicial decisions must be‘just’. Thus he 1gnores the fact that there exist
very many different opinions as to what 1s ‘just’, so that 1n a given case what we have
is only the judge’s opinion as to what is just and this can be different from that of the
parties; and furthermore, that from the point of view of positive law, it is only if a
judge 1s empowered thereto by the positive legal order that he 1s to decide a concrete
case by applying a general norm he considers to be just rather than a positive,
materially determinate general norm (cf. ch. 57. v).

O. C.]ENSEN(I957:)
It is generally assumed by members of the legal profession—and probably by members of the
public as well—that judicial decisions are inferred, deductively or inductively, from legislation,
from previous cases, especially certain leading cases, discussed at length in the appeal courts,
410 Note 165
and from the writings of juristic authorities. It is assumed that these authoritative writings and
previous judgments are taken as the premises of an argument which, if correctly carried out,
produces the decision as a valid conclusion. And it is thought that although this reasoning,
which is set out before the court in the delivery of a judgment, may lack the rigour of deduction
in mathematics or the system of induction in the natural sciences, it is, nevertheless, logical in
the same sense in which they are, however much the logic in legal inferences may have to be
tempered by common sense and a sense of equity leSt unrestrained logic defeat the ends of ~
justice. (Jensen, 1957: 7)
Jensen does not agree with this- view. He says in the Introduction to his book (p. xiii):
‘The aim of this book is to show that one reason for the law’s delays and uncertainties
is the inconclusiveness of the arguments which are given in support of legal decisions,
or which are advanced by counsel on behalf of their clients and that this
inconclusiveness is due to the nature of the concepts and modes of thought used.’ But
Jensen is not of the opinion that the principles of logic are not applicable to legal
norms. He claims only that it is seldom that a judicial decision is a mere logical
inference. He says: ‘Formal deduction occurs rarely in legal cases’ (p. 25).

Walter W. Cook does not appear to deny that a judicial decision is logically
deducible from a valid general legal norm relating to the case to be decided, except in
a ‘new’ case. He says: ‘It may seem incredible, but it is still possible for eminent
members of the bar to assert that all a court does in deciding doubtful cases is to
deduce conclusions from fixed premises, the law’ (1927: 307). Thus Cook seems to
suppose that there are ‘doubtful’ cases or ‘new’ cases. For he says further on:
Prominent teachers of law still tell us that we must preserve what they call the logical symmetry
of the law, that after all the law is logical; and talk about deducing the rule to be applied to a new
situation [stress added] by logic from some ‘fundamental principle’. Back of all this . . . [is] the
assumption that . . . [we can discover general ‘laws’ . . . which by means of] syllogistic
reasoning, we can use in dealing with new cases as they arise as merely new samples of pre-
existing classes. [Translator’s Note: In quoting the last sentence Kelsen omits so many words
that it no longer makes sense; the words in brackets have been restored to make the sentence
intelligible]

Thus Cook clearly believes that a new case obtains if no valid general legal norm
applies to it. He says: ‘If now the given situation appears to the court as new, i.e. as
one which calls for reflective thinking, the lawyer ought to know, but usually does
not because of his unscientific training, that his case is “new” because these rules and
principles of law do not as yet cover the situation’ (p. 308). But that surely means that
there is no valid general legal norm concerning the concrete state of affairs facing the
court. Then he says: ‘The case is by hypothesis new. This means that there 15 no
compelling reason of pure logic which forces the judge to apply any one of the
competing rules urged on him by Opposing counsel.’ He does not deny that there are
cases in which the judge is logically compelled to apply a valid general norm. For he
says: ‘The logical situation confronting the judge in a new case being what it is, it is
obvious that he must legislate, whether he will or no.’ But that is incorrect for the
reasons given in the text. A judge may create new law for a concrete case only if he is
empowered to do so by positive law—apart from the case where a decision has
become res judicata. But Cook does not appeal to the principle of res judzcata.
Ulrich Klug defends the view that ‘the derivation of the valid ought-judgment for
the individual case existing in reality from the general ought—judgments of positive
law’ (1966: 47ff.) has the logical form of an inference. He gives the following
example: ‘All professional receivers of stolen goods are to be punished with up to 10
years’ imprisonment (Major premiss)—All the accused in the criminal proceedings
 Note 165 411

against A and his associates are professional receivers of stolen goods (Minor
premiss)—All the accused in the criminal proceedings against A and his associates are
to be punished With up to 10 years’ imprisonment (Conclusion).’
When a statute is applied to an individual case, the major premiss is ascertained by the court, the
minor premiss (when it is about a factual matter) is based on direct observation, admissions,
testimony or circumstantial evidence . . . and the conclusion is a norm directly applicable to the
present case (or in the alternative, directly excluding any application to the present case).
(Uberweg, 1857: 368)
A. G. Guest (1961) defends the View that the rule of inference is applicable to legal
norms. He undertakes on p. 182 ‘to produce some familiar examples of deductive
reasoning (in the sense of the application of a general rule to a particular instance) and
to inquire whether or not they can be cast in a logical form’. That is, he tries to prove
that normative syllogisms are possible in the domain of legal norms. He gives the
following example (p. 182). He assumes the validity of the general norm ‘Any person
shall be guilty of an offence [i.e. any person is to be punished] if, at a parliamentary
or local government election, he fraudulently takes out of the polling station any
ballot paper.’ This norm is the major premiss. The finding of fact constitutes the
minor premiss: ‘X (the accused) at a parliamentary or local government election
fraudulently took out of a polling station a ballot paper.’ Then he says: ‘If the minor
premiss is true, the offence is made out and X will be found guilty.’ That is, the law—
applying organ will decide—Le. will posit the individual norm—‘X is to be
imprisoned.’ But that is incorrect. The judge does not arrive at his decision by way of
‘deductive reasoning’ (i.e. a logical thought—process), but by way of an act of will.

A. Heusler (1879):
There are no legal proceedings in which the judge is exempted from syllogistically deducing a
proposition of law from other propositions of law . . . If the case concerns the payment of the
price of a purchase, he performs the following deduction mentally: Contractual obligations
must be fulfilled; a purchase is a contract; therefore, the purchaser has to fulfil the obligation he
has incurred. (pp. 222 f.; stress added)
Such a thought-process may occur. But it remains to be seen whether this represents
a syllogism, even though the major premiss and the conclusion are prescriptive
sollen—sentences. But the main point is that, as long as it is only the thought-process
mentioned by Heusler taking place, there has not yet occurred a judicial decision
commanding the purchaser to pay the purchase-price on pain of having it forcibly
levied upon his assets. This requires an act of will on the judge’s part, an act of will
which may occur, but need not occur in spite of the thought—process. The act of will
and consequently its meaning—the judicial decision—can never result by way of a
logical thought—process.

Arthur Kaufmann claims that a judicial decision is not the result of a logical
inference. He says: ‘ The belief that adjudication is a purely deductive process is
widespread, but nevertheless it is quite incorrect’ (1965: 8), and on p. 29:
all cognition of law, all adjudication, all so-called ‘subsumption’ exhibits the structure of an
analogy. For ‘subsuming’ means ‘to bring into correspondence’ norms and concrete life-
situations. But that is not immediately possible by a simple syllogism since a norm and a state of
affairs are dissimilar: the norm lies on the plane of conceptually formulated Ought, and the state
of affairs on the plane of empirical facticity.
412 Note 166

Note 166

Klug (1966: 47ff.) founds the inference from the validity of a general norm of
criminal law to the validity of the individual norm of the decision of the criminal
court in a concrete case, upon a ‘translation’ of the ‘ought—to—be-punished’ into a
property of the person to be punished. It was shown previously (Endnote 141) that
such a translation is unacceptable.
Schreiber (1962: 40 ff.) also supposes that the validity of an individual norm can be
derived from that of a general norm and the truth of a statement. He begins with the
general norm in article 823(1) of the German'Civil Code: ‘A person who wilfully . . .
unlawfully injures . . . the property of another is obligated to compensate him for any
damage arising therefrom.’ Schreiber comments that this legal norm, correctly
formulated, must read ‘If a person wilfully and unlawfully injures the property of
another, he is bound to compensate him for any damage arising therefrom.’ The
validity of the individual legal norm comes about in the following way: for the
variable ‘someone’ he substitutes ‘Maier’, for ‘another’, ‘Huber’, for ‘the property’,
‘the Volkswagen with serial—number 100,000’, for ‘damage’, ‘break the windshield’,
for ‘the damage caused’, ‘20 marks’. Whence we get—so he says—‘If Maier wilfully
and illegally breaks the windshield of Huber’s Volkswagen, and thereby causes 20
marks’ worth of damage, he is obligated to pay Huber 20 marks in compensation.’
This is an application of the so-called ‘Substitution—Rule’. But another rule, the so-
called ‘Basic Inference Rule’, is also necessary. We need another rule of deduction in
order to get the sentence ‘Maier is obligated to pay Huber 20 marks in
compensation’, that is, in order to get the validity of the individual norm ‘Maier is to
pay Huber 20 marks in compensation.’ ‘This conclusion is possible with the “Basic
Inference Rule”. This rule asserts that from the validity of an implication and of its
antecedent, we may infer the validity of the consequent.’ What is involved therefore
is the obtaining of the validity of an individual legal norm by way of a logical
conclusion. Schreiber represents this conclusion in the following way:
If we have established that the following sentence is according to law ‘If Maier wilfully and
unlawfully breaks the windshield of Huber’s Volkswagen and thereby causes 20 marks’ worth
of damage, he is obligated to pay Huber 20 marks in compensation’, and if further we have
found that the following sentences are true ‘Maier wilfully and illegally broke the windshield of
Huber’s Volkswagen’ and ‘This act caused 20 marks’ worth of damage’, then by means of the
Basic Inference Rule we can infer ‘Maier is obligated to pay Huber 20 marks in compensation’.

According to Schreiber, this sentence represents a valid individual legal norm.

That is clearly not the case. The validity of such an individual legal norm exists
only if this norm is posited by an act of will of a competent judge. ‘We’—i.e. anyone
other than the competent judge—can certainly utter the sentence ‘Maier is obligated
to pay Huber 20 marks in compensation’, but this sentence is legally irrelevant: it is
not a valid individual legal norm. It is also legally irrelevant that ‘we’ find that the
sentences ‘Maier wilfully, etc.’ and ‘This fact caused, etc.’ are true. What is legally
relevant is that the competent judge finds that Maier wilfully and illegally broke the
windshield of Huber’s Volkswagen and thereby caused 20 marks’ worth of damage.
Whether this 1s true or false 1s quite irrelevant—once the judge’s decision 1s res
judicata. But most importantly of all, a valid individual legal norm ‘Maier 1s obligated
to pay Huber 20 marks in compensation’ exists only once the competent judge so
decides, 1. e. performs an act of will whose meaning is M‘aier 1s to pay Huber 20
marks 1n compensation for damage’ The validity of this norm cannot be obtained by
way of a logical inference, for the reasons indicated 1n the text.
Speaking of the application of a general legal norm to a concrete case, W.
Hallemans says:
 NOtes 166—167 413

Is there not here more than the famous syllogism whose major premiss is a legal rule, whose
minor premiss is the finding that the facts agree with the factual portion of the rule, and which
leads to the conclusion deduced from the conjunction of the two premisses? While it is true that
syllogisms are to be found in all judicial reasoning, it is important to note that the minor premiss
is particularly complex. It is at this point that there occurs the transition from fact to law. And it
is the most exciting moment in a judge’s work. Is it foolhardy to think that this transition is not
merely a question of simple logical reasoning? The judge must always make a leap from the
concrete factual plane to the abstract plane of the law. It is not possible to compare this step in
the judge’s proceedings to the perfect and automatic joining of two pieces by a machine. (1961:
82)
Hallemans is quite close to the correct View. But he fails to see the essential point—
the judge’s act of will—and therefore does not exclude the possibility that the
judicial decision is the result of a logical inference. The ‘leap’ the judge must make in
order to arrive at his decision is the act of will whose meaning is the decision and
which cannot result by way of a logical thought—process.
Ch. Perelman asks whether it is correct to say, as many jurists do, ‘that the judge’s
reasoning can be schematically reduced to a syllogism whose major premiss states a
legal rule, whose minor premiss provides the factual components, and whose
conclusion forms the judicial decision’ (1961: 269). Perelman does not reject the
possibility that the judicial decision is arrived at by way of an inference. He merely
points out the difficulties involved, especially concerning the subsumption of the
state of affairs concretely found by the judge under the state of affairs abstractly
specified in the general norm to be applied, that is, under the concept of the state of
affairs Specified as a condition in the general norm to be applied. He says:
The judge’s reasoning can therefore theoretically be reduced to the following elements:
a) The applicable norm states that, in the event that a fact specified in a certain way is found to
obtain, such and such a legal consequence will follow.
b) But it has been found that there obtains a fact which can be characterized according to the
conditional clause of the applicable norm.
c) Such and such a legal consequence will follow. (p. 270)
This is a syllogism in which the major premiss is a general norm and the conclusion is
the judicial decision, i.e. an individual norm.
Perelman comments: ‘The judge’s decision is therefore never hypothetical . . . This
aSpect of judicial reasoning—which is fundamental—is not made clear when the
reasoning is reduced to a syllogism, because syllogisms can yield either hypothetical
or categorical conclusions, according to whether the minor premiss is hypothetical or
cate orical.’ It is not true that a judicial decision can never be hypothetical, i.e.
conjitional. Conditional decisions occur in both civil and criminal cases.
Furthermore, the situation with respect to the subsumption of the concrete state of
affairs under the state of affairs abstractly specified in the major premiss is no
different in the case of a theoretical syllogism. Perelman has nothing to say about
the fact that the judicial decision is the meaning of an act of will and hence cannot
result from a logical process of thought.

Note 167

A. Heusler makes the claim, based on Lotze’s Logic (1884: §§ 278 ff), that when facts
are not immediately perceptible, statements about these facts can be made only with a
certain degree of probability (1879: 221); whence it follows that the judge’s finding of
fact is only probable——in so far as the facts are not immediately perceived by the
judge (and this is usually the case). But this is legally irrelevant, since the condition
414 Notes 167—168
for the legal consequence is not the fact itself, but the judge’s finding of fact. Whether
this finding is true or false is irrelevant, once the judicial decision is res judicata, i.e.
can no longer be repealed. Furthermore, even a statement about a fact based on one’s
immediate perception cannot be made with certainty, since we cannot be sure if our
perceptions agree with the facts existing objectively in the external world, or even
whether there exist any facts at all in some real external world.
Zygmunt Ziembinski (1963) draws attention to the fact that in the case of a
theoretical syllogism, the verification of the minor premiss is completely free, while
in the case of a practical or normative syllogism in the area of law, the
verification of the facts mentioned in the minor premiss is subject to certain rules, in
particular—though not exclusively—the so--called pmesumptio juris ac de jure. He
says: ‘We see therefore that the verification of the claims concerning the facts by the
judge competent to decide the case, while it is on the whole similar to the verification
of the facts by a scientist, takes place in a proceeding which is organized in a definite
way and is based on specific methodological directives elaborated by jurists’ (p. 396).
That means that in the case of a so—called legal syllogism, the condition concerning
the truth of the minor premiss is not phrased ‘If the statement forming the minor
premiss is true . . . ’ (as it is in the case of a theoretical syllogism), but rather ‘If the
statement forming the minor premiss about the state of affairs representing the delict
is considered to be true by the competent judge according to the legal rules valid for
this purpose . . . ’. But even that is not correct. As was indicated previously, the
minor premiss of the alleged legal syllogism reads ‘If the competent judge finds a
concrete state of affairs which, in his view, is subsumable under the concept of the
state of affairs specified in the general legal norm to be applied by him . . . ’. In the
final instance, when the judicial judgment can no longer be repealed, it is irrelevant
whether the judge’s statement about the existence of the state of affairs is true.

Note 168

The prevailing positivism is based on the jurisprudential dogma that all law is the will of the
legislator. Given this presupposition, the only consistent view is to consider the judgment as a
syllogism. In other words, a judgment can be considered as law only if it presents itself as an
unambiguously and objectively determinable manifestation of the legislator’s will. Con-
sequently, the judge’s function is exclusively one of cognition (cf. ‘syllogism’); applying
the law simply means repeating it. It already ‘exists’, unambiguous and objectively
determinable. (Alf Ross, 1929: 325)

According to this view, the only thing the judge has to do is interpret the law as
created by the legislator. In opposition to this view, Ross correctly insists that the
judge’s function is essentially one of creating the law (pp. 332 f.). He continues on
p. 336:
the process of interpretation can be thought of as being logically in two stages. First, the true
understanding of the statutory words is determined in their abstractly existing form. After this
comes the transition to the concrete. Interpretation—as this concept is generally understood—
really means an anticipated concretization of the law in the mind (even if people do not realize
this as a rule). But it is impossible for such an activity to be based on an objectively logical
process; for no path leads from the abstract to the concrete . . . We are faced here with a basic
phenomenon of logic: the absolute opposition between the rational and the irrational, between
the rational and the concrete-actual. Between the abstract and the concrete there is a gap which
logic cannot bridge: only an act can do so.
 Notes 169—170 415

Note 169

Karl Georg Wurzel already opposed the assumption that judicial decisions always
result by way of a logical inference: ‘Juristic thinking does not in any way exhaust its
function by investigating a really existing will (i.e. that of the legislator)’ (1904: 50).
On p. 52 he says: ‘The determination of the legislator’s will [is] not always the
determination of a real will.’ So it is sometimes the determination of a real act of will.
The first sentence quoted above continues:
rather the enormous multiplicity of facts and of combinations of facts which forms the jurist’s
subject-matter, was not foreseen by any 'will (the legislator’s mental contents) in such a way that
a simple subsumption would yield the solution. The legislator’s will illuminates only isolated
points on the broad field of life, and no purely logical operations (finding the ratio, deduction,
etc.) can make this light any broader by its own powers so to speak, as by sleight of hand.

What Wurzel is driving at is clearly that the individual norm in the judicial decision
contains elements not contained in the general norm applied by the judge: for this
reason no subsumption is possible, and hence no logical inference. But Wurzel does
not claim that the judicial decision does not result from any logical inference at all.
For he says on p. 5:
What is juristic thought? What are its principles and its features? How is it different from
ordinary non-juristic thought? Is it—and this is a priori unlikely—a special variety of logic, or
only a special method suited to the subject matter of law? Anything but clarity reigns over these
questions. And yet juristic thought is the means by which many judgments and conclusions are
drawn, and which yields arguments and so settles many law-suits and controversies. On the
strength of the logical inference drawn by the jurist, the executioner’s axe falls on one person
and the prison door shuts behind another person—as someone once said—and the inference is
logical if it is in accordance with legal reasoning.
Here Wurzel does not dispute that the decision in a criminal case results from a
logical inference. On p. 11 he points out that ‘legal science’ does not always allow us
‘to draw exact conclusions from the given facts’. The fundamental point is that
Wurzel does not take into consideration the fact that the judicial decision is the
meaning of an act of will, and an act of will cannot be reached by way of a thought-
process.

Note 170

An understanding of this presumably led to the theory advanced by John Chipman

Gray (1927) that ‘all the law is judge-made law’, that is, that only the individual
norms posited by the courts can be considered legal norms, and that the general
norms created by legislation and custom can only be considered to be sources of law.
Since there is no adequate reason for denying the character of law to general norms,
the interpretation advanced in the text can be seen to be the correct one.
Morris R. Cohen says: ‘We may with Professor Gray go on to assert that in the last
analysis the courts also make our statute law; for it is the court’s interpretation of the
meaning of a statute which constitutes the law’ (1914: 162). This identification of a
statute with its interpretation is untenable. The Bible and Shakespeare’s Hamlet are
also interpreted, but it would not occur to anyone to claim that the Bible was written
by its interpreters or that Hamlet was written not by Shakespeare but by its
interpreters. As long as nothing more than interpretation takes place, it is the statute
(interpreted by the court) which the court applies (but does not create). Since there
416 NOtes 170—171

must be something which is interpreted, what is interpreted cannot be identical with

the interpretation. Nevertheless, it can happen that a judge, on the pretext of
interpreting a statute, applies a general norm which cannot be found in the statute by
any genuine interpretation. But even then, what the judge creates is not the statute he
is allegedly interpreting, but an individual norm which he can ground only on the
basis of a general norm presupposed by him but not valid in virtue of positive law.
Cohen says on p. 163: ‘If the judges are in no way to change or make the law, what
business had Marshall to shape the constitution?’ But on this point Cohen quotes
‘Phelp’s Address before the American Bar Association’ (1879), where it says on
p. 176: ‘He [i.e. Marshall] was not the commentator upon American constitutional
law; he,was not the expounder .of it; he was the author, the creator of it’. Hence
Cohen himself disavows his own identification of a statute with its interpretation.
For the passage he quotes explicitly states that Marshall did not interpret the
constitution, but on the pretext of interpreting it, handed down decisions which did
not agree with the constitution allegedly being interpreted, and which, having been
continually accepted, brought about a change in the constitution by custom.
Stephen Edelson Toulmin claims that there is a parallel between jurisprudence and
logic, that logic is generalized jurisprudence: ‘Logic (we may say) is generalised
jurisprudence. Arguments can be compared with law—suits’ (1958: 7). What Toulmin
has in mind is a parallel between the grounding of a judicial decision in a legal
proceeding and the justification of a non—judicial claim. But there is no parallel. For it
presupposes that there is an analogy between the validity of a—general or
individual—norm and the truth of a—general or individual—statement, that the
validity of a judicial decision follows logically from the validity of the general legal
norm to be applied by the judge and the finding of a concrete state of affairs, just as
the truth of ‘Socrates is mortal’ follows logically from the truths ‘All humans are
mortal’ and ‘Socrates is human.’ But that is incorrect, as was previously shown.
Alessandro Giuliani (1963) shows the important influence ‘legal thought’
(l’e’lémentjuridique) had on medieval logic. He says that
the attraction of the juridical model of reasoning is so strong that medieval logic appears to us,
in its structure, to be a ‘generalized jurisprudence’, to use somewhat freely an expression of
Toulmin’s . . . There is a constant reference to a ‘juridical model’ of reasoning, in so far as the
schema of the ‘quaestio’ is that of a judicial controversy between a plaintiff and a defendant . . .
We can discover in [medieval logic] . . . a logic of the probable: the ‘probable’ finally coincides
with the domain where there exists a conflict of opinions, of testimony, of authorities, and
hence a controversy, a question (p. 542). . . . The philosopher—like the judge—must seek the
truth among the conflicting opinions, and the problem of arriving at knowledge through
testimony reappears in the field of philosophical speculation, since authority is understood to be
the testimony of the wise or competent man. (p. 544)

Note 171

It is a common, and not necessarily regrettable, occurrence even for a magistrate who knows the
law to formulate his judgment in two steps: the conclusions are first inspired by what conforms
most closely with his sense of justice, the technical reasons for judgment being added on later.
Must we conclude in this case that the decision was made without any preceding deliberation?
Not at all, as the pros and cons may have been weighed with the greatest care, though not
within the frame of considerations based on legal technique. Strictly legal reasons are adduced
only for the purpose of justifying the decision to another audience. (Perelman and Olbrechts-
Tyteca, 1969: 43)

The last claim is incorrect. The justification takes place before the same audience as
the decision. But it is true that the justification takes place only after the decision has
been arrived at.
 Notes 171—172 417

In a critical analysis of Jerome Frank’s Law and the Modern Mind, Mortimer
Adler points out ‘that formal logic is not an instrument of discovery but of
demonstration . . . that formal logic is devoted entirely to the analysis of propositions
and of their relationships, among which are the relationships of implication and
proof. . . ’ (1931: 100).
Morris R. Cohen says that in the case of
the issuance of an injunction, the rinciple of the syllogism means that the granting of the
request will be completely justified3 legally if two propositions are established as premises:
(1) the factual premise that the conduct of the given defendant is of a certain character, and (2) the
jural premise that conduct of this character is of the class against which a judge is legally
authorized to issue an injunction. That the two premises completely prove the conclusion no
rational being can well dispute. (1933: 230)
If the term ‘propositions’ is meant to refer to sentences which can be true or false,
then Cohen is speaking of a theoretical syllogism, and not of a normative syllogism
whose conclusion is an individual norm, namely the judicial decision. If a judicial
decision actually occurs, then to say that it is justified does not mean that the judicial
decision—the meaning of the judge’s act of will—results from a logical inference, i.e.
that it is the conclusion of a normative syllogism.
Jerome Frank says:
The process of judging, so the psychologists tell us, seldom begins with a premise from which a
conclusion is subsequently worked out. Judging begins rather the other way around—with a
conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and
afterwards tries to find premises which will substantiate it. If he cannot, to his satisfaction, find
proper arguments to link up his conclusion with premises which he finds acceptable, he will,
unless he is arbitrary or mad, reject the conclusion and seek another . . . Now, since the judge is
a human being and since no human being in his normal thinking processes arrives at decisions
(except in dealing with a limited number of simple situations) by the route of any such
syllogistic reasoning, it is fair to assume that the judge, merely by putting on the judicial
ermine, will not acquire so artificial a method of reasoning. Judicial judgments, like other
judgments, doubtless, in most cases, are worked out backward from conclusions tentatively
formulated. (1930: 100 f.)
If the judicial decision occurs before the premisses are given, i.e. before the judge is
aware of them, then his decision does not have the character of a ‘conclusion’. If, as
Frank says, the judge tries to find the premisses only once his decision has occurred
(i.e. the individual norm has been posited), then the individual norm of the judicial
decision is not the conclusion of a normative syllogism. As long as the premisses have
not been established, there cannot be any talk of a ‘conclusion’. What does occur is
a process by which the validity of an already posited individual legal norm is
grounded. In so far as this process can be presented in the form of a syllogism, it is
not a practical syllogism, but a theoretical syllogism, in which one of the premisses is
the statement that the judicial decision occurred. As is clear from the passage quoted
above, Frank does not deny that it is possible for a judicial decision to be reached by
way of a syllogistic procedure. He merely limits this possibility to simple cases. It
should also be noted that Frank speaks of a ‘thinking process’ and of a ‘method of
reasoning’, and so does not discuss the decisive point, i.e. that a judicial decision is an
act of will.

Note 172

Alois Hofler (1922: 73) defines logic as the ‘theory of correct thinking’ directed to
truth, a property which he says belongs ‘exclusively’ (p. 58) to judgments; in so doing,
418 Notes 172—173

he clearly distinguishes thinking as an intellectual function from willing as an emotional

function. And he relates the logical procedure of inferring to judgments: ‘The logical
theory of inference has to put forth the laws concerning . . . the features of the
premisses on which it depends whether a certain judgment can be deduced from them
with evidence or not’ (p. 605) On p 613, he gives as an example of an inference
Socrates’ objections against escaping in Plato’s Crito: ‘I lived voluntarily 1n this State;
whoever lives voluntarily 1n a State tacitly acknowledges its laws; whoever tacitly
acknowledges the laws of a State must obey them in all cases; whoever must obey the
laws of a State in all cases may not evade the unjust interpretation of the laws;
therefore, I may not evade the unjust interpretation of the laws.’ The example is not
correctly formulated inasmuch as Hofler uses the words ‘must’ and ‘may’ where it
would be more correct to use ‘sollen’. In Hofler’s presentation, the major premiss
and the conclusion are statements by Socrates about the validity of norms, rather
than norms. What we have is not a syllogism in which the validity of the individual
norm ‘1, Socrates, am not to flee Athens’ follows logically from the general norm ‘If
someone lives voluntarily in a State and acknowledges its laws, he'is to obey even the
unjust laws of this State’ and the truth of the statement ‘I, Socrates, lived in Athens
and acknowledged its laws.’ The validity of the individual norm is already
presupposed. What Socrates is aiming at is the justification of the decision he has
arrived at, and that means grounding the validity of the individual norm he addressed
to himself not to flee Athens upon the validity of a general norm. But this does not
mean that the validity of the individual norm which is the meaning of his act of will
follows logically from the validity of the general norm.

Note 173

This is what John Dewey seems to be getting at when he says of the logic of judicial
decisions: ‘ . that logic must be abandoned or that it must be a logic relative to
consequences rat/oer than to antecedents, a logic of prediction of probabilities rat/oer
than one of deduction of certainties’ (1924: 26; stress added). But Dewey does not
arrive at this conclusion from any awareness of the fact that the judicial decision is
the meaning of an act of will which can, but need not, occur, but because he rejects
‘the absurd because impossible proposition that every decision should follow with
formal logical necessity from antecedently known premises’_ This proposition is
impossible, because
statutes . . . cannot at the very best avoid some ambiguity, which is due not only to carelessness
but also to the intrinsic impossibility of foreseeing all possible circumstances, since without
such foresight definitions must be vague and classifications indeterminate. Hence to claim that
old forms are ready at hand that cover every case and that may be applied by formal syllogizing
is to pretend to a certainty and regularity which cannot exist in fact. The effect of the pretension
is to increase practical uncertainty and social instability. Just because circumstances are really
novel and not covered by old rules, it is a gamble which old rule will be declared regulative of a
particular case . . . (p. 26)

From this it appears that, according to Dewey, a syllogistic deduction is impossible

only when the formulation of the general legal norm to be applied is ambiguous, or
when the legislators did not foresee the present case. If the formulation of the general
legal norm to be applied is unambiguous and there is no reason to believe that the
legislators did not foresee the present set of facts, then—or so it seems from these
lines of Dewey’s—the judicial decision can be considered to be a logical inference.
Miriam Theresa Rooney comments on Dewey’s article: ‘The logic of the
syllogism, Professor Dewey holds, is altogether useless to aid law in this task for,
 Note 173 419

according to him, the “syllogism implies that for every possible case which may arise,
there is a fixed antecedent rule already at hand” ’ (1941: 133). But that does not
follow very clearly from Dewey’s statements. Dewey insists that the judge as a
matter of fact does not reach his decision in a given case by way of a logical inference.
He says: ‘The problem is not to draw a conclusion from given premises; that can best
be done by a piece of inanimate machinery by fingering a keyboard’ (1924: 23). Here
we would expect the assertion that the judicial decision is the meaning of an act of
will. But Dewey goes on:
The problem is to find statements, of general principle and of particular fact, which are worthy
to serve as premises. As a matter of actual fact, we generally begin with some vague anticipation
of a conclusion (or at least of alternative conclusions), and then we look around for principles
and data which will substantiate it or which will enable us to choose intelligently between rival
conclusions. N0 lawyer ever thought out the case of a client in terms of the syllogism. He
begins with a conclusion which he intends to reach, favorable to his client of course, and then
analyzes the fans of the situation to find material out of which to construct a favorable
statement of facts, to form a minor premise. At the same time he goes over recorded cases to
find rules of law employed in cases which can be presented as similar, rules which will
substantiate a certain way of looking at and interpreting the facts . . . As soon as acceptable
premises are given and of course the judge and jury have eventually to do with their becoming
accepted—and the conclusion is also given. In strict logic, the conclusion does not follow from
premises; conclusions and premises are two ways of stating the same thing. Thinking may be
defined either as a development of premises or development of a conclusion; as far as it is one
operation it is the other.
That amounts to the truth already discovered by John Stuart Mill, that the conclusion
in a logical syllogism is not a new truth, but the syllogism simply makes explicit a
truth already implicit in the premisses. Recognizing this to be true also of the
normative or practical syllogism of traditional jurisprudence does not amount to
rejecting the possibility of such a syllogism.
On p. 22, Dewey says with reference to Justice Holmes’s dictum that ‘General
propositions do not decide concrete cases’: ‘No concrete proposition, that is to say
one with material dated in time and placed in space, follows from any general
statements or from any connection between them’. Applied to the so—called
normative or practical syllogism, this would only mean that from the general norm
‘If someone commits murder, he is to be punished with death by hanging’ there
follows only the individual norm ‘Maier, who murdered Schulze, is to be hanged’
and not the individual norm ‘Maier, who murdered Schulze, is to be hanged on 20
July 1959 in the courtyard of the Linz city jail at 25 Spitalstrasse.’ In other words,
that the latter judgment follows from the general norm only in part (assuming it can
follow from the general norm at all). But later (p. 24) Dewey says:
Courts not only reach decisions; they expound them, and the exposition must state justifying
reasons. The mental operations therein involved are somewhat different from those involved in
arriving at a conclusion . . . Exposition implies that a definitive solution is reached, that the
situation is now determinate with respect to its legal implication. Its purpose is to set forth
grounds for the decision reached, so that it will not appear as an arbitrary dictum . . . it is certain
that in judicial decisions the only alternative to arbitrary dicta, accepted by the parties to a
controversy only because of the authority or prestige of the judge, is a rational statement which
formulates grounds and exposes connecting or logical links.
Here Dewey seems to want to say roughly the same thing as I do in the text: that the
judicial decision is not a logical inference, but that once it is rendered, the individual
norm is valid and is founded on the validity of the general legal norm to be applied to
the concrete case. But Dewey advances no sufficient reason why the judicial decision
is not a logical inference. The essential point for him is to be found at the end of his
paper:
420 Notes 173—174

I should indeed not hesitate to assert that the sanctification of ready-made antecedent universal
principles as methods of thinking is the chief obstacle to the kind of thinking which is the
indispensable prerequisite of steady, secure and intelligent social reforms in general and social
advance by means of law in particular. If this be so, infiltration into law of a more experimental
and flexible logic is a social as well as an intellectual need. (p. 27)
That is the political postulate that in deciding concrete cases the judge should not be
bound by already valid general legal norms. But Dewey presents this postulate as the
consequence of the principle of a non-Euclidean logic ‘ . . . that general legal rules and
principles are working hypotheses, needing to be constantly tested by the way in
which they work out in application to concrete situations’ (p. 26). The natural laws of
natural science may be considered ‘working hypotheses’. But general legal norms are
not working hypotheses, for law is not a science. The working hypotheses of natural
science must be continually tested by science for their applicability, and if necessary,
corrected by natural science. The general norms of law should also continually be
tested for their usefulness. But they can be changed only by the competent legal
authorities, not by legal science. The parallel between natural science and law which
Dewey clearly presupposes does not exist. Dewey defines ‘legal theory’ ‘as an
account of the procedures followed in reaching decisions’, but only ‘in those cases in
which subsequent experience shows that they were the best which could have been
used under the conditions’ (p. 17). The judgment that a decision 15 the best possible
one under the circumstances is a value—judgment, which can vary according to the
various value——systems, and these are completely different from the system of logical
principles. The logic Dewey postulates is a mixture of logic and of these value--systems
alien to logic. It should be noted that Dewey speaks only of ‘methods of thinking’ ,
that his problem is that of the applicability of logical principles to legal thinking, to
‘practical reasoning leading up to decisions’. He says: ‘the especial topic of our
present discussion is logical method in legal reasoning and judicial decision’ (p. 18),
and thereby assumes that the judicial decision is effected by ‘reasoning’, i.e. thought.
But the relation between thought and the decision to which it leads is psychological
and not logical. Acts of thought can motivate acts of will. The judicial decision, i.e.
the act of will of which it is the meaning, can be motivated by an act of thought. But
from the fact that principles of any logic—either the old logic or the new one
postulated by Dewey—apply to the meaning of the act of thought which leads to the
act of will of the judicial decision, it does not follow at all that these principles apply
to the meaning of the act of will, i.e. to the judicial decision.
Dewey’s opinion that the problem of the judicial decision is not that of drawing a
conclusion from given premisses, but that of finding the premisses, is also defended
by Giulio Calogero (1937). Cf. in particular p. 51, where he says: ‘The fact is, as
everyone knows, that the real and important work of the judge does not consist in
drawing the conclusion from the premisses but really in finding and formulating the
premisses. Once the judge is convinced that a certain way of acting implies a certain
legal consequence, and that an instance of this way of acting has been proven, then
anybody can draw the conclusion.’ Calogero does not seem to have known of
Dewey’s article.

Note 174

H. A. Prichard asks the question ‘Is there really a reason why I should act in the ways
in which hitherto I have thought I ought to act?’ (1912: 21). Is there an answer which
can provide this reason? ‘We then want to have it proved to us that we ought to do
so, i.e., to be convinced of this by a process which, as an argument, is different in
kind from our original and unreflective [i.e. irrational] appreciation of it.’ ‘This
 Notes 174—175 421

demand is, as I have argued, illegitimate’ (p. 36). His opinion is that ‘The sense of
obligation to do, or the rightness of, an action of a particular kind is absolutely
underivative and immediate’ (p. 27).
We recognize, for instance, that this performance of a service to X, who has done us a service,
juSt in virtue of its being the performance of a service to one who has rendered a service to the
would—be agent, ought to be done by us. This apprehension is immediate, in precisely the sense
in which a mathematical apprehension is immediate, e.g., the apprehension that this three-sided
figure, in virtue of its being three-sided, must have three angles. Both apprehensions are
immediate in the sense that in bOth insight into the nature of the subject directly leads us to
recognize its possession of the predicate; and it is only stating this fact from the other side to say
that in both cases the fact apprehended is self-evident. (p. 28)
But it is not every Ought which is self-evident, a binding norm. It is so only when it
is founded on a higher Ought. It is self—evident that duties are duties because this is a
tautology. But the question is not whether duties are duties, but whether an Ought I
am faced with is a binding norm, i.e. not only the subjective meaning of an act of will
directed to the behaviour of another person, but also an objective meaning. That is a
legitimate question. If there were no answer to this question, it would not be possible
to distinguish between the command of a highwayman and a judicial decision.
Prichard comments: ‘An “ought”, if it is to be derived at all, can only be derived from
another “ought” ’ (p. 24). Since this cannot be an infinite regress, we must reach a
Basic Norm which cannot be founded on anything else. The Basic Norm is the
answer to the question why I ought to behave in a certain way. But this answer has
the character of a fiCtion. That is what traditional moral philosophy does not
recognize and what leads Prichard to claim that moral Oag/at cannot be grounded,
that it is self—evident.

Note 175

Since the Basic Norm does not in any way determine the content of the norms of the
legal order whose validity is founded on it (inasmuch as they are created in
accordance with the Basic Norm) and the content of these norms must be specified
by positive norm—creating acts, the norms of a positive legal order cannot be derived
by a process of thought from the Basic Norm, even if the validity of one norm could
be logically derived from the validity of another norm.
Everett W. Hall (1952) makes the following comment about my claim that ‘Its
various norms [of a positive legal order] cannot be obtained from the basic norm by
any intellectual operation’ (General Theory of Law and State (1945) 113):
This is not merely a slur upon the legal profession; it is actually incorrect. Suppose we have the
norm set up by a state legislature that the state highway commission is to designate speed zones
in which motorists are not to exceed thirty-five miles per hour. Suppose the commission
designates a stretch of highway ‘a’ as such a speed zone. Then ‘Motorists are not to exceed
thirty—five miles per hour in a’ is derivable from the act of the legislature. This derivation uses
subsumption (‘The designation of a as speed zone by the commission is binding’ is subsumed
under ‘Any designation of speed zones by the commission is binding’). Such a combination of
operations can surely be described as ‘intellectual’. (1952: 117)

The first thing to be said about this is that Hall’s example does not represent the
derivation of a positive legal norm from the Basic Norm, but the alleged derivation of
a positive legal norm from a general norm posited by the legislature. If the
commission declares a certain stretch a to be a speed zone, this means that the
commission posits a general norm prescribing that motorists are not to exceed a
speed of 35 miles per hour on this stretch a. The positing of this norm is an act of will
422 Notes 175—178

and not a process of thought. The validity of the norm posited by the commission is
founded on the validity of the norm posited by the legislature; but it cannot be
‘derived’ (i.e. logically inferred) from it, since an act of will of the commission is
necessary in order to make it valid.

Note 176

As was indicated previously, Manfred Moritz (1954) rejects the possibility of

logically deriving the validity of one imperative from the validity of another, but
does not reject the possibility of founding the validity of one imperative on that of
another. He quite rightly rejects all attempts at interpreting the relation betweeen the
statute to be applied by the judge and the judicial decision in a concrete case as a
practical syllogism. He says on p. 106: ‘Thus the attempts were not successful.’ And
he continues: ‘How is it then possible to found the judicial decision on the “statute”,
if the statute itself is to be understood as an imperative?’ Thus Moritz sees that the
problem at hand is that of founding the judicial decision on the statute. But this
means—and Moritz does not seem to realize it—the founding of the validity of the
individual norm to be issued by the judge on the validity of the general norm he has
to apply. Cf. Endnote 162.

Note 177

Some people distinguish terminologically between the state of affairs specified

generally in the general norm and the individually specified state of affairs found by
the law—applying organ, by calling the former the ‘state of affairs’ [‘Tatbestand’] and
the latter the ‘facts’ [‘Sac/over/mlt’]. Heller writes:
One of the main tasks of a jurist consists in ‘subsuming’ certain facts occurring in life under
statutory states of affairs, and thereby subjecting the former to the legal consequences
connected to the latter. The dominant terminology thereby sharply distinguishes between the
concept of the ‘facts’, which denotes the actual events and situations subjected to legal
verification, and the concept of the ‘state of affairs’ which concerns only the descriptions
(contained in a legal norm [he means ‘a general legal norm’]) of the abstractly specified factual
presuppositions to which a certain legal consequence is attached. (1961: 64)

On this point, Heller refers to Karl Engisch (1956: 34).

This terminological distinction is superfluous. The distinction which matters is
this: the set of facts to which the general norm to be applied by the law—applying
organ attaches a legal consequence is specified generally or—and this amounts to the
same thing—abstractly, i.e. the general norm contains the concept of a set of facts,
while the law-applying organ ascertains the existence of an individually specified set
of facts, or—and this amounts to the same thing—a concrete set of facts. If the
concept of murder contained in the general norm is the concept of a ‘state of affairs’,
then Schulze’s murder by Maier, ascertained by the law—applying organ, is also a
‘state of affairs’, a concrete state of affairs.

Note 178

Max Rumpf claims: ‘Thus the subsumption—form, which since the Middle Ages has
continually lost ground and importance in the methodically developed fields, above
all in logic itself, no longer has any right to life in legal science either’ (1912: 216). His
argument is that a subsumption—inference only gets us to the point where we have to
 Notes 178—179 423

decide to act. ‘Determining the quantum of the punishment is totally outside of the
scope of the subsumption-schema’ (p. 215). But this is not correct, at least not in the
case where the legal norm to be applied by the judge attaches to a certain set of facts
(the condition) a punishment specified as to quantum; for example, if the norm reads
‘If someone commits theft, he is to be punished by imprisonment for not less than 6
months and not more than one year.’ If the judge finds in a concrete case that the act
to be punished by the court, namely Maier’s depriving Schulze of a gold ring against
his will, constitutes theft, and decrees that Maier is to be imprisoned for 6 months,
then he can found his characterization of the facts as theft as well as his determination
of the length of imprisonment at 6 months on the legal norm to be applied, and this
founding consists in the first case in a subsumption under the concept of theft
specified in the legal norm to be applied and in the second case in a subsumption
under the quantum ofpunishment specified in the legal norm. The judge can say: My
decision has the force of law, i.e. corresponds to the legal norm to be applied by me
(or applied by me), since the set of facts before me is one of theft and the term of
imprisonment I imposed is within the limits specified in the legal norm to be applied
by me. In my paper ‘Law and Logic’ (1973), I say on p. 247: ‘If the general norm
envisages death by hanging as the punishment for murder, and if the judge condemns
Jones to death by hanging [after finding that he committed murder], the individual
norm [which represents the judicial decision] accords with the general norm. This
relation of accordancy is a subsumption-relation.’
Leading logicians do not support at all Rumpf’s opinion that the subsumption-
form has lost its significance. Thus Sigwart refers repeatedly to it (1895: i.18, 57, 59,
306, 363, 367; ii.184, 521), and he refers to subsumption as a ‘central vieWpoint of
classification’ (1924: ii. 737). Erdmann (1923) treats subsumption as an important
procedure. Likewise, Karl Engisch (1956: 43 ff., 47 f., 50, 55, 56 ff., 143 ff.).

Note 179

Norberto Bobbio formulates two different ways of founding the validity of legal
norms:
To demonstrate the validity of a legal norm, jurists make use of two basic forms of argument,
which constitute the genuine rules of legal reasoning. (1) A norm is valid only if it derives from a
higher valid norm (The Rule of Formal Validity). (2) A norm is valid only if the requirement it
contains is logically coherent with the other valid norms of the legal order (The Rule of Material
Validity). (1954: 72)

In connection with Rule 1, Bobbio says on p. 73:

Proof of formal validity . . . becomes important when a jurist has to interpret judicial decisions,
administrative acts, acts resulting from the autonomy of individual wills, because the important
thing to be proven is their legitimacy, and this amounts to deciding whether the act was
performed within the limits and according to the requirements fixed by the higher norm, in
other words, whether the act is formally correct.
And in connection with Rule 2:
Proof of material validity . . . is of little importance when the content of a legal norm is clearly
explained, though it is the jurists’s task even in this case to show that there is no contradiction
between it and the other norms of the system. But it becomes of overriding importance when
the task is to make an obscure norm clear, an implicit norm explicit.

It is not possible to agree with the first of the two rules, since Bobbio clearly
presupposes that the validity of the lower norm follows logically from that of the
higher norm: ‘if it derives from a higher valid norm’ (p.72). On p. 77, he
424 Notes 179—181

distinguishes between norms ‘which are explicitly formulated by the delegated

person’ and ‘norms which are deduced logically from the explicit norms’. Such a
deduction of the validity of one norm from that of another is not possible. Against
Rule 2, it should be noted that Bobbio assumes that there exists a logical
contradiction between two norms which are not ‘coherent’; but as was indicated in
the text, this is not the case. Two conflicting legal norms can both be valid. Conflicts
of norms are possible, and in fact exist as long as they are not removed by some
provision of positive law.

Note 180

Heller denies the logical character of the subsumption of the concrete state of affairs
found by the law—applying organ under the concept of this state of affairs contained
in the general norm to be applied by the law-applying organ: ‘Thus, the heart of true
juristic subsumption does not consist at all in making a syllogism, but in classifying
concrete states of affairs under certain legal concepts’ (1961: 67). We must agree with
this. But he continues: ‘Admittedly, there are a series of logical laws to be respected
in this classification, but it is mainly a question of legal evaluation and so cannot be
done with the means of pure logic.’ This is incorrect. When a concrete state of affairs
is subsumed under a legal concept—e.g. a certain behaviour of a certain person under
the concept of murder—there is no more of an evaluation than in the subsumption of
a concrete object under the concept of a fir—tree. The judgment ‘This person’s
behaviour is murder’ is no different from the judgment ‘This object is a fir-tree.’ The
evaluation is not in the subsumption performed by the law—applying organ, but in the
general norm which attaches the death penalty to the concept of murder, as well as in
the individual norm in which the law-applying organ, in accordance with the general
norm, attaches a concrete death—penalty to the concrete state of affairs of murder it
has found. To be more exact: the values here are created by the general norm and the
individual norm correSponding to the general norm, and not by the subsumption of
the concrete state of affairs under the concept of this state of affairs.

Note 181

Heller (1961: 64) confuses the subsumption of the concrete state of affairs found by
the law—applying organ under the concept of this state of affairs contained in the
general norm to be applied by this organ with a subsumption of the individual norm
to be posited by the law-applying organ under the general norm to be applied. This is
what he says of the subsumption of facts of life under ‘statutory states of affairs’:
‘This subsumption can be reduced to a syllogism whose major premiss reproduces
the legal norm [he means ‘the general legal norm’] and whose minor premiss
reproduces the facts to be judged.’ He thus assumes that the minor premiss is the
decision to be reached by the law—applying organ, that is, the individual norm which
decrees to be obligatory an individually specified legal consequence subsumable under
the concept of this legal consequence contained in the general norm. He gives the
following example (p. 65):
Murderers are punished with life imprisonment.
M is a murderer.
M is punished with life imprisonment.
 Notes 181—182 425

Admittedly Heller says that it is not at all undisputed ‘that law—application makes
use of the logical inference—figures’, and later (p. 67) he says what we quoted earlier:
‘The heart of true juristic subsumption does not consist at all in making a syllogism.’
But since he confuses the subsumption of the concrete state of affairs under the legal
concept with a subsumption of the individual norm under the general norm, he
erroneously attributes the evaluation of the state of affairs contained in these norms
to the subsumption of the concrete state of affairs under the concept thereof.

Note 182

Frey claims: ‘When a demand is made, it is always possible to ask for a reason for this
demand’ (1957: 459). He speaks of ‘justification-reasons’ and gives the following
example:
A: ‘Shut the door!’
B: ‘Why?’
A: ‘To stop the draft.’
B: ‘All the windows in the next room are shut. Even if the door were shut, there would still
be a draft as long as both windows in this room are open.’
B rejects the reason given by A, since obeying the command will not have the effect
A believes it will. Thus Frey clearly presupposes the following syllogism:
1. Drafts are to be prevented.
2. Shutting the door has the effect of preventing a draft.
3. The door is to be shut.
The validity of norm 3 can be founded on that of norm 1. But its validity does not
follow logically from premisses 1 and 2, even if statement 2 is true.
Charles L. Stevenson (1947: 26 f.) defends the view that an imperative cannot be
‘proved’ (‘not open to proof at all’). But he believes that an imperative can be
justified, that it can have a ‘rational foundation’, that a ‘reason’ can be given for it.
This justification is not a ‘proof’ but a ‘substitute for a proof’, an ‘analogue to proof’,
and the function of this proof—substitute is to ‘support’ the imperative, i.e. to bring
about compliance.
An imperative may be met by the question ‘why?’ and this ‘why?’ asks for a reason. For
instance: If told to close the door, one may ask ‘why?’ and receive some such reply as ‘It is too
drafty’ or ‘The noise is distracting’ . . . . These reasons cannot be called ‘proofs’ . . . but they
manifestly do support an imperative. They ‘back it up’ or ‘establish it’—or ‘base it on concrete
references to fact’. And they are analogous to proofs in that they may remove the doubts or
hesitations that prevent the imperative from being accepted . . . The supporting reason then
describes the situation which the imperative seeks to alter, or the new situation which the
imperative seeks to bring about; and if these facts disclose that the new situation will satisfy a
preponderance of the hearer’s desires, he will hesitate to obey no longer. More generally,
reasons support imperatives by altering such beliefs as may in turn alter an unwillingness to
obey.

What Stevenson calls the ‘rational justification’, the ‘reason’ for an imperative, is
the ascertainment that compliance with the imperative will have an effect desired by
the imperative. Awareness of this fact may in many cases, though not all, be a motive
for compliance. But the ascertainment of the fact that compliance will have an effect
desired by the imperative can in no way be a justification of the imperative, i.e. the
basis for the validity of the command (or norm) that the door is to be shut. The basis
for the validity of an Ought can only be an Ought and not an Is. The basis for the
426 Notes 182—183

validity of the individual norm ‘You are to shut the door’ can only be a norm such as
‘The draft, which can be stopped by shutting the door, is to be prevented’ or
‘Stopping the noise, which can be effected by shutting the door, is to be effected.’ In
other words, it is only on the validity of this norm that the validity of the norm ‘You
are to shut the door’ can be founded.
Stevenson’s remarks about ‘supporting reasons’ may be psychologically accurate.
But they are irrelevant from the point of view of logic. Stevenson appears to admit as
much, since he says: ‘The supporting reasons here mentioned have no sort of logical
compulsion’ (p. 30).

Note 183

Consequently Heller is mistaken when he claims that in order to discern the ‘logical
structure of the proposition of law’ [he means the general hypothetical legal norm] it
is necessary to examine the relation between condition and legal consequence ‘with a
view to its truth—content’ (1961: 56 f.). And this is supposed to be possible precisely
because this legal norm is not a ‘mere imperative’, an ought-norm which is neither
true nor false, but is also a statement which is true or false. For ‘the particular
proposition of law [i.e. the general legal norm] can be decomposed in such a way that
the imperative [i.e. the sollen] appears exclusively within the frame of the legal
consequence, and we can then agree to think tacitly of the imperative character as a
property of the legal consequence or as the content of a statement about the legal
consequence, without having to mention it in the particular case’ (p.58). But the
hypothetical legal norm cannot be ‘decomposed’ in such a way that the imperative,
i.e. the sollen, ‘appears exclusively within the frame of the legal consequence’. The
sollen does not appear within the frame of the legal consequence. It is the other way
around: the legal consequence appears within the frame of the sollen. And the legal
consequence cannot be separated from the legal condition. Both are inseparably
contained within one norm. The meaning of the norm ‘If someone commits theft, he
is to be punished’ is: ‘This is to be [Es soil]: if someone commits theft he is punished.’
The condition ‘If someone commits theft’ is essential for the is-to—be—punished. What
we have is a conditional and not an unconditional ‘is-to-be-punished’. Therefore
both the condition and the consequence have to be understood as contained within
the sollen, and that means ‘within the norm’. Nor can we agree to ‘think tacitly’ of
the sollen—i.e. the validity of the legal norm—‘as a property of the legal
consequence or as the content of a statement about the legal consequence’. For the
sollen—the validity of the norm—is not a property (like the truth of a statement),
but is the existence of the legal norm, and the legal norm to the effect that the legal
consequence is to occur is something totally different from the statement that a legal
consequence is to occur in virtue of a valid norm. In Heller’s reasoning, we find the
typical confusion of a norm with a statement about the validity of a norm. The
‘decomposition’ of the legal norm into an imperative, which is neither true nor false,
and a statement, which is true or false, contains the same logical contradiction as
Jorgensen’s theory of the imperative and indicative factors: the assumption of a
sentence which is neither true nor false and at the same time either true or false.
It is true that Heller admits: ‘If we take the proposition of law as a mere
imperative, then it certainly may seem doubtful whether it can be logically true or
false in the same sense as an assertion sentence (a logical statement)’ (p.57). But he
continues: ‘But the issue changes if we consider the logical relation of a particular
proposition of law to the whole current legal order. Here it makes perfect sense to
say that proposition of law A is “true” for legal order X, but “false” for legal order Y.’
It makes no sense at all to say that, if the legal norm is being misinterpreted as a
 Notes 183—184 427

statement. If it is not being misinterpreted, then the only thing which it makes sense
to say is that legal norm A is ‘valid’ in legal order X and not in legal order Y.
‘Similarly’, says Heller, ‘the relation between the state of affairs [the condition] and
the legal consequence can be examined with a view to its truth—content independently
of the imperative character of the proposition of law. It must also make sense to state
that for legal order X it is “true” (or “false”) that legal consequence aa occurs when
state of affairs bb is fulfilled.’ That would make sense only if the meaning of the
general legal norm were: If state of affairs [919 occurs, then consequence aa occurs.
But then we would not have a legal norm but a sentence which has the meaning of a
causal law of nature, and furthermore a sentence which is clearly false. For it cannot be
denied that the state of affairs which serves as the condition in a general legal norm can
obtain in reality without the consequence specified in the legal norm occurring in reality.
Heller’s futile efforts to find a statement in the hypothetical legal norm are based
on the mistaken belief that the relation between condition and consequence has to be
true or false in order for it to be possible to consider it as a logical relation. But as was
indicated in the text, it is irrelevant from the point of view of logic whether the
consequence subject to the condition is asserted as existing or prescribed as
obligatory. It is only the statement in which the relation of condition and
consequence is contained which can be tested for its truth-content. To examine the
relation of condition and consequence for its truth—content means to examine for its
truth—content the whole sentence in which this relation is asserted. The relation
between condition and consequence contained in a norm cannot be examined for its
truth—content, but only for the validity of the norm in which the relation is
contained. For even a norm which decrees a behaviour to be obligatory only under
certain conditions is neither true nor false. More correctly: we can only enquire
whether the sollen—sentence in which a relation of condition and consequence is
contained is or is not a valid norm. If it is, then the relation between condition and
consequence obtains; if it is not, i.e. if a norm with this content does not exist, then
the relation does not obtain.

Note 184

If an object M has marks a, b, c, d, e and another N agrees with it as regards a, b, c, one is

inclined to expect that it will agree in d, e as well, an expectation not logically justified. For logic
only guarantees agreement with what has been fixed, which cannot be contradicted as long as it
is retained. However, our expectations depend on our physiological and psychological
organisation. Inferences from similarity and analogy are not strictly matters of logic, at least not
of formal logic, but only of psychology. . . . [If features d and e of object M] have strong
biological interest because of some useful or noxious property, or are specially valuable for
some applied or pure scientific or intellectual purpose . . . we feel compelled to search for d, e . .
. Whatever the outcome, we shall still have extended our knowledge of N, by obtaining a new
agreement or difference with regard to M. Both cases are equally important and contain a
discovery. (Mach, 1976: 166)
In other words: new knowledge. If we apply this claim to the example we gave of an
analogical inference in law, in which we have meanings of acts of will rather than
meanings of acts of cognition, then the judicial decision which allegedly follows by
analogy creates new law.
Schreiber says: ‘In common legal language use is made of many so-called rules of
inference which certainly allow many problems to be overcome—though not in a
strictly correct way—but which are unacceptable as rules of inference’ (1962: 47).
428 Note 185

Note 185

Jan Gregorowicz cites the the account of the argument it muiori ud minus given by a
Polish logician, T. Kotarbinski:
if the law permits an act whose inconvenience is greater in scope or intensity, then it ipso fucto
permits any act causing the same inconvenience but with less scope or intensity. For instance, if
it is permitted to react to aggression with an act which is capable of killing the aggressor, then it
is ipso fucto permitted to perform any act which could injure the aggressor. What we have here
is an extra-logical relation without universal value. Consequently, the argument 4 muiori ud
minus must be considered a fallible mode of inference which is not strictly logical because it
makes use of both extra-logical and logical constants. (Gregorowicz, 1962: 72)
Gregorowicz does not reject this characterization of the argument it muiori ad minus,
but he does reject the—inescapable—conclusion which Kotarbinski draws. Grego-
rowicz says that in the argument it muiori ud minus ‘we have at our disposition a set
of inference-forms of varying degrees of generality, which are fallible, which contain
extra-logical as well as logical constants, and which define an original and
independent logic belonging to rhetoric’ (p. 74). But that is no logic in the only
acceptable sense of the word. Gregorowicz is forced to admit that ‘there is a paradox
in this statement’; but he thinks it possible to assume that this ‘paradox is only
apparent. The word “logic” has more than one meaning, and it has meanings other
than the one which practitioners of mathematical logic give to it.’ No system of
principles whose applications are ‘fallible’ (as he acknowledges) deserves the name of
logic. Gregorowicz says on p. 75: ‘ . . . legal logic will formulate either claims
required by these observations, or directives corresponding to these claims.
Naturally, the claims will not be analytical propositions like, for example, those of
propositional calculus, and the directives will not be infallible. But they will be
rational and useful.’ In many cases the argument it maiori ad minus may be justifiable
or useful from the point of view of legal politics, but it does not represent a logical
inference from the validity of another general norm. Gregorowicz can justify a ‘legal
logic’ only on the basis of the ‘rationality’ and ‘utility’ of its results. But the
principles of logic aim for truth and not rationality or utility, and their applications
cannot be ‘fallible’, i.e. exposed to error, for it is of the essence of logic to indicate
how to avoid error.
Speaking of the characteristic arguments of legal logic, Ch. Perelman says: ‘These
arguments cannot be used for a rigorous demonstration, and no machine could ever
operate with them since their use requires in each case a decision in order to justify
their application in given circumstances. In fact, their use never assumes the form of a
formally correct or incorrect demonstration’ (1960: 228). Whether such an
argumentation can be called ‘logic’ even though it is fundamentally different from
what has hitherto been called logic is merely a question of terminology. But what is
important is not to ignore the fundamental difference. It is clear that there can be no
question of specifically logical necessity in what Perelman calls legal logic. In order to
justify the assumption of a legal logic, Perelman continues: ‘In all modern systems,
the judge is required to decide cases and to give reasons for his decisions’ (p. 229). If
this is supposed to mean that the judge has to ‘found’ his decision on a valid general
legal norm, then it cannot mean that the judicial decision must be obtained by way of
a logical inference, but only that it must correspond to a valid general legal norm.
Perelman also says: ‘[The judge] must interpret the law so as to, first, remove the
inconsistencies and even the contradictions which might be present at first sight, and
secondly, fill the gaps which at first sight the legislator might have left.’ But these
functions of the judge result in the creation of law. By resolving conflicts of norms
for a concrete case, or by filling so—called ‘gaps’, he creates new law. If he claims
 Note 185 429

merely to be performing a logical inference from already valid law, then he is making
use of a fiction—possibly a very useful fiction—Whose purpose is clearly to maintain
the illusion of legal certainty for the law—seeking public. It is quite significant that in
speaking of legal conflicts and gaps, ,Perelman says that they obtain ‘at first sight’, and
so suggests that the judge can find the decision he considers to be correct by a closer
examination of already valid law, and he continues: ‘And he must give reasons for
What he does, by connecting his conclusions to legal texts’ and so makes use of this
fiction himself. Admittedly he adds: ‘This justification is not compelling, as it does
not result from a purely demonstrative reasoning, but from an argumentation.’ But
this ‘argumentation’ is something fundamentally different from a logical deduction.
‘It is because this argumentation is not a mere calculus, but an assessment of the
strength of this or that reasoning, that the freedom and independence of the judge
constitute an essential element in the administration of justice.’ The freedom and
independence of the judge is an essential element of legal adjudication. But Within a
logical reasoning there is no freedom or independence for the knowing subject; he is
strictly bound by the rules of logic.
 References

ADICKES, ERICH (1920), Kants Opus postumum dargestellt und heurteilt (Berlin).
ADLER, MORTIMER (1931), ‘Law and the Modern Mind: A Symposium’, 31
Columhia Law Review 82—108.
AMIRA, KARL VON (1891), Tierstrafen und Tierprozesse (Innsbruck).
AMOS, MAURICE SHELDON (1929), ‘Some Reflections on the Phi1030phy of Law’, 3
Cambridge Law journal 31—41.
ANDO, TAKATURA (1958), Aristotle’s Theory ofPractical Cognition (Kyoto).
ANSCOMBE, G. E. M. (1959), An Introduction to Wittgenstein’s Tractatus (London).
AQUINAS, THOMAS, Summa contra Gentiles, in The Basic Writings of Saint Thomas
Aquinas, ed. Anton Pegis (New York, 1945).
Summa theologica (New York, 1947).
ARISTOTLE, The Complete Works of Aristotle, ed. Jonathan Barnes (rev. Oxford
translation, Princeton Univ. Press, 1984).
ASCARELLI, TULLIO (1961), ‘Le fait et le droit devant la cour de cassation italienne’,
Le fait et le droit (Brussels) 113—29.
ASHBY, WARREN (1950), ‘Teleology and Deontology in Ethics’, 47 journal of
Philosophy 765—73.
AUER, ALBERT (1956), Der Mensch hat Recht: Naturrecht auf dem Hintergrund des
Heute (Graz, Vienna, and Cologne).
AUSTIN, J. L. (1955), ‘Other Minds’, Logic and Language, Second Series (Oxford)
123—58.
AYER, ALEREDJULES (1949), Language, Truth and Logic (London).
BAIER, KURT (1958), The Moral Point of View (Ithaca).
BAUCH, BRUNO (1923), Wahrheit, Wert und Wirklichkeit (Leipzig).
BAYLIS, CHARLES A. (1936), ‘Are Some Propositions Neither True nor FalseP’, 3
Philosophy ofScience 156—66.
BECKER, OSCAR (1952), Untersuchungen uher den Modalkal/eul (Meisenheim).
BECKER, WALTER G. (1952), ‘Die Realitat des Rechts’, 40 Archiv fur Rechts— und
Sozialphilosophie 216—42, 375—416, 534—60.
BENTHAM, JEREMY, Deontology, or The Science of Morality (London, 1834).
BERGMANN, JULIUS (1879), Allgemeine Logik, i, Reine Logik (Berlin).
BERRIAT SAINT—PRIX, FELIX (1855), Manuel de logique judiciaire a l’usage des
étudiants (Paris).
BINDER, JULIUS (1925), Philosophie'des Rechts (Berlin).
BINGHAM, JOSEPH W. (1912), ‘What Is the Law?’, 11 Michigan Law Review 1—25,
109-21.
BOBBIO, NORBERTO (1954), ‘Considérations introductives sur le raisonnement des
juristes’, 8 Revue internationale de philosophie 67—83.
BOCHENSKI, I. M., and MENNE, A. (1954), Grundrifl der Logistik (Paderborn).
BOHNERT, HERBERT GAYLORD (1945), ‘The Semiotic Status of Commands’, 12
Philosophy ofScience 302—15.
BOLZANO, BERNHARD (1972), Theory of Science (Oxford). Translation by Rolf
George of Wissenschaftslehre (2nd edn. Leipzig, 1929).
BON, FRED (1896), Grundzu'ge der wissenschaftlichen und technischen Ethik.
 References 431

— (1898), Uher das Sollen und das Gu'te: Eine hegrifisanalytische Untersuchung
(Leipzig).
BOONIN, LEONARD (1964), ‘The Logic of Legal Decisions’, 75 Ethics 179—94.
BRANDIS, C. A. (1862), Geschichte der Entwicklungen der griechischen Philosophie
(Berlin).
BRUSIIN, OTTO (1951), Uher das juristische Denken (Helsinki).
BRUTT, LORENZ (1907), Die Kunst der Rechtsanwendung (Berlin).
BUCHMANN, GEORG (1952), Geflu'gelte Worte (Berlin).
BUSEBAUM, HERMANN (1663), Medulla theologiae moralis.
CALOGERO, GIULIO (1937), La logica del giudice e il suo controllo in cassazione
(Padua).
CARDOZO, BENJAMIN N. (1947), The Nature of the judicial Process (New York).
CARNAP, RUDOLF (1935), Philosophy and Logical Syntax (London).
— (1945), ‘On Inductive Logic’, 12 Philosophy ofScience 72—97.
— (1962), Logical Foundations ofProbability (2nd edn. Chicago).
CARRITT, E. F. (1947), Ethical and Political Thinking (Oxford).
CASTANEDA, H. N. (1960), ‘Obligation and Modal Logic’, 3 Logique et analyse (n.s.)
40—48.
CASTBERG, FREDE (1957), Problems of Legal Philosophy (Oslo and London).
CATHREIN, VICTOR (1924), Moralphilosophie (6th edn. Leipzig).
CICERO, The Republic (Loeb Classical Library, London, 1977).
COHEN, FELIX S. (1959), Ethical Systems and Legal Ideals: An Essay on the
Foundations of Legal Criticism (Ithaca).
COHEN, HERMANN (1904), Ethik des Reinen Willens (Berlin).
COHEN, MORRIS R. (1914), ‘The Process of Judicial Legislation’, 48 American Law
Review 161—98.
(1931), ‘Justice Holmes and the Nature of Law’, 31 Columbia Law Review
352—67.
— (1933), Law and the Social Order (New York).
— (1961), Reason and Law (New York).
and NAGEL, ERNEST (1946), An Introduction to Logic and Scientific Method
(New York).
COOK, WALTER W. (1927), ‘Scientific Method and the Law’, 13 American Bar
Association journal 303—9.
COSSIO, CARLOS (1948), ‘Phenomenology of the Decision’, Latin-American Legal
Philosophy (20th Century Legal Philosophy Series, 3; Cambridge, Mass.) 343.
DERNBURG, HEINRICH (1911), System des Romischen Rechts (8th edn. Berlin).
DEWEY, JOHN (1924), ‘Logical Method and Law’, 10 Cornell Law Quarterly 17—27.
DIXON, OWEN (1956), ‘Concerning Judicial Method’, 29 Australian Law journal
468—76.
DREWS, ARTHUR (1928), Lehrhuch der Logik (Berlin).
DUBISLAV, WALTER (1937) ‘Zur Unbegriindbarkeit der Forderungssatze’, 3 Theoria
330—42.
DUCASSE, C. J. (1948), ‘C. I. Lewis’ Analysis of Knowledge and Valuation’, 57
Philosophical Review 260—80.
DU PASQUIER, CLAUDE (1948), Introduction a la the’orie ge’ne’rale et a la philosophie
du droit (3rd edn. Neuchatel and Paris).
DURKHEIM, EMILE (1953), ‘Value Judgments and Judgments of Reality’, Sociology
and Philosophy (London) 80. Translation by D. F. Pocock of ‘Jugements de valeur
et jugements de réalité’, (1911) 19 Revue de me’taphysique et de morale 437—53.
EHRLICH, EUGEN (1918), Die juristische Logik (Tiibingen).
432 References

EISELE, FR. (1886), ‘Unverbindlicher Gesetzesinhalt’, 69 Archiv fur die civilistische

Praxis 275—330.
EISLER, RUDOLF (1914), Der Zweck: Seine Bedeutungfu'r Natur und Geist (Berlin).
ENGISCH, KARL (1943), Logische Studien zur Gesetzanwendung (Heidelberg).
—- (1956), Einfu'hrung in das juristische Denken (Stuttgart).
ERDMANN, BENNO (1923), Logik (3rd edn. Berlin and Leipzig).
ESSER, JOSEPH (1956), Grundsatz und Norm in der richterlichen Forthildung des
Privatrech ts (Tiibingen).
EWING, A. C. (1947), The Definition of Good (New York).
FORIERS, PAUL (1961), ‘La distincrion du fait et du droit devant la Cour de Cassation
de Belgique’, Lefait et le droit (Brussels) 51—77.
FRANK, JEROME (1930), Law and the Modern Mind (New York).
(1931), ‘Mr. Justice Holmes and Non—Euclidian Legal Thinking’, 17 Cornell
Law Quarterly 568—603.
FREEMAN, KATHLEEN (1971), Ancilla to the Pre—Socratic Philosophers (6th edn.
Oxford). Translation of 5th edn. of Diels, Fragmente der Vorso/eratiker (Berlin).
FREGE, GOTTLOB (1952), ‘On Sense and Meaning, Translations from the Philosophical
Writings of Gottloh Frege (Oxford) 56—78. Translation by Max Black of ‘Uber Sinn
und Bedeutung’, (1892) 100 Zeitschrift fur Philosophie und philosophische Kritik
(n.s.) 25—50.
FREUND, PETER (1933), Die Entwicklung des Normhegriffs von Kant his Windelhand
(Inaugural dissertation, Berlin).
FREY, GERHARD (1957), ‘Idee einer Wissenschaftslogik: Grundzfige einer Logik
imperativer Satze’, 4 Philosophia naturalis 434—91.
FREYTAG LORINGHOFF, BRUNO BARON VON (1961), Logik: 1hr System and ihr
Verha'ltnis zur Logistik (3 rd edn. Stuttgart).
GARCIA MAYNEZ, EDUARDO (1958), ‘Die relationale Struktur der rechtlichen
Verhaltensregelung’, 44 Archiv fur Rechts- und Sozialphilosophie 1—25.
(1959), ‘Die hOchsten Prinzipien der formalen Rechtsontologie und der
juristischen Logik’, 45 Archiv fur Rechts- und Sozialphilosophie 193—214.
(1963), ‘Some Considerations on the Problem of Antinomies in the Law’, 49
Archiv fur Rechts- und Sozialphilosophie 1—14.
GEACH, P. T. (1958), ‘Imperatives and Deontic Logic’, 18 Analysis 49—56.
GILMORE, GRANT (1957), ‘Law, Logic and Experience’, 3 Howard Law journal 26—
41.
GIULIANI, ALESSANDRO (1963), ‘L’élément “juridique” dans la logique médiévale’, 6
Logique et analyse (n. s. ) 540—70.
GOLDSCHMIDT, WERNER (1951), ‘Beziehungen zwischen Ontologie und Logik 1n der
Rechtswissenschaft’, 3 Osterreichische Zeitschrift fur offentliches Recht (n. s ) 186~
201.
GRAY, JOHN CHIPMAN (1927), The Nature and Sources of the Law (2nd edn. New
York .
GREGOIZOWICZ, JAN (1962), ‘L’argument a maijori ad minus et le probleme de la
logique juridique’, 5 Logique et analyse (n.s.) 66—75.
GUEST, A. G. (1961), ‘Logic in the Law’, Oxford Essays in jurisprudence (Oxford)
176—97.
HAGERSTROM, AXEL (1953), Inquiries into the Nature of Law and Morals (Uppsala).
HALL, EVERETT W. (1952), What Is Value? (New York and London).
(1956), ‘Further Words on “Ought”,’ 7 Philosophical Studies 74—8.
I-IALLEMANs, W. (1961), ‘Le Juge devant la distinction du fait et du droit’, Le fait et le
drozt (Brussels) 78—88.
HARE, RICHARD M (1949), ‘Imperative Sentences’, 58 Mind 21—39.
— (1964), The Language ofMorals (Oxford).
 References 433

HELLER, THEODOR (1961), Logik und Axiologie der analogen Rechtsanwendung

(Berlin).
HEUSLER, A. (1879), ‘Die Grundlagen des Beweisrechts’, 62 Archiv fur die
civilistische Praxis 209—3 19.
HOBBES, THOMAS, De cive: The English Version, ed. Howard Warrender (Clarendon
edition of the philosophical works of Thomas Hobbes, 3; Oxford, 1983).
HOELER, ALOIS (1897), Psychologie (Vienna).
(1922), Logik (2nd edn. Vienna and Leipzig).
HOFSTADTER, ALBERT, and MCKINSEY, J. C. (1939), ‘On the Logic of Imperatives’, 6
Philosophy ofScience 446—57.
HOLMES, OLIVER WENDELL (1921), Collected Legal Papers (New York).
(1921a), ‘The Law’, in Holmes (1921), 25—8.
—— (1921b), ‘The Path of the Law’, in Holmes (1921), 167—202.
— (1948), The Common Law (Boston).
HONECKER, MARTIN (1942), Logile (2nd edn. Berlin and Bonn).
HUME, DAVID, A Treatise ofHuman Nature, ed. Selby—Bigge (Oxford, 1888).
HUSSERL, EDMUND (1970), Logical Investigations (London). Translation by J. N.
Findlay of Logische Untersuchungen (5th edn. Tubingen, 1968).
(1973), Experience and judgment: Investigations in a Genealogy of Logic
(London). Translation by James S. Churchill and Karl Ameriks of Erfahrung und
Urteil: Untersuchungen zur Genealogie der Logik (Prague, 1939).
IHERING, RUDOLF VON (1954), Geist des romischen Rechts (Basel).
JAGER, WERNER (1948), Aristotle: Fundamentals of the History of his Development
(2nd edn. Oxford). Translation by Richard Robinson of Aristoteles (lst edn.
Berlin, 1923).
JENSEN, O. C. (1957), The Nature of Legal Argument (Oxford).
JOEL, KARL (1921), Geschichte der antiken Philosophie (Tubingen).
JQRGENSEN, JORGEN (1937), ‘Imperatives and Logic’, 7 Erkenntnis 288.
JUAREZ PAZ, RIGOBERTO (1959), ‘Reasons, Commands and Moral Principles’, 2
Logique et analyse (n.s.) 194—205.
KALINOWSKI, GEORGES (1959a) ‘Y a—t-il une logique juridiqueP’, 2 Logique et analyse
(n.s.) 48—53.
(1959b), ‘Interprétation juridique et logique des propositions normatives’, 2
Logique et analyse (n.s.) 128—42.
KANT, IMMANUEL [Page references are to the volume and page of the Prussian
Academy edition of Kant’s works e.g. iv. 133, in the case of works that have not
been translated, as well as English translations which give the pagination of the
Academy edition. In the case of the Kemp Smith translation of the Critique of Pure
Reason (which gives the pages of the 1787 edition rather than the Academy
edition), references are to the 1787 edition in the traditional manner: e.g. B 375.]
Critique ofjudgement, translated byJ. C. Meredith (Oxford, 1952).
Critique of Practical Reason, translated by L. W. Beck, in Critique of Practical
Reason and Other Writings in Moral Philosophy (Chicago, 1949).
Critique ofPure Reason, translated by Norman Kemp Smith (London, 1958).
Foundations ofthe Metaphysics ofMorals translated by L. W. Beck, in Critique
ofPractical Reason and Other Writings in Moral Philosophy (Chica,go 1949).
Handschriftlicher Nachlafl, Prussian Academy edition, vol. xvi.
Logic, translated by Robert S. Hartman and \Volfgang Schwarz (Indianapolis
and New York, 1974).
Metaphysics of Morals, second part translated by Mary J. Gregor as The
Doctrine of Virtue (Philadelphia, 1964).
‘Nachricht von der Einrichtung seiner Vorlesungen in dem Winterhalbjahre
von 1765—66’, Prussian Academy edition, ii. 305 ff.
434 References

KANT, IMMANUEL, Religion within the Limits of Reason Alone, translated by

Theodore M. Greene and Hoyt H. Hudson (New York, 1960).
KAUFMANN, ARTHUR (1965), Analogie una' ‘Natur a'er Sache’ (Karlsruhe).
KAUFMANN—BI'JHLER, WERNER (1960), Logische una’ hegriffliche Prohleme hei a'er
niiheren Regelung des Grundrechts der Kriegsdienstverweigerung gemafl Art. 4
Abs. 3 Satz 2 GG (Doctoral dissertation, Heidelberg).
KELSEN, HANS [‘WRS’ refers to Die Wiener rechtstheortische Schule, ed. Klecatsky,
Marcie, and Schambeck (Vienna, Frankfurt, and Ziirich: Europa Verlag, and
Salzburg and Munich: Universitatsverlag Anton Pustet, 1968).]
(1910), Hauptprohleme der Staatsrechtslehre entwickelt aus der Lehre pom
Rechtssatze (Tubingen).
(1922), Rechtswissenschaft und Recht: Erledigung eines Versuches zur Uher-
windung der ‘Rechtsa’ogmatik’ (Vienna and Leipzig). Also published in (1922) 2
Zeitschriftfur offentliches Recht 103.
(1927), ‘Naturrecht und positives Recht’, 2 Internationale Zeitschrift fu'r
Theorie des Rechts 71—94; reprinted in WRS 215—44.
— (1934), Reine Rechtslehre (Vienna).
(1941), Vergeltung una' Kausalita't: Eine soziologische Untersuchung (The
Hague).
(1943), Society and Nature: A Sociological Inquiry (Chicago).
— (1945), General Theory ofLaw and State (Cambridge, Mass.).
— (1950), ‘Causality and Imputation’, 61 Ethics 1—11; reprinted in What Is justice?
(Berkeley and Los Angeles, 1957), 324—49. Translation of ‘Kausalitat und
Zurechnung’ (1954), 6 Osterreichische Zeitschift fu'r Offentliches Recht (n.s.) 125—
51; reprinted in WRS 663—92.
(1957), ‘What Is Justice?’, What Is justice? (Berkeley and Los Angeles) 1—24,
translation of Was ist Gerechtigkeit? (Vienna, 1953). Cf. also (1973), ‘What IS
Justice?’
(1960), Reine Rechtslehre (2nd edn. Vienna).
(1960), ‘Das Problem der Gerechtigkeit’, published as Appendix to Reine
Rechtslehre (2nd edn. Vienna, 1960).
(1966), ‘Rechtswissenschaft oder Rechtstheologie?’, 16 Osterreichische Zeits-
chriftfu'r offentliches Recht 233—55.
(1967), Pure Theory of Law (Berkeley and Los Angeles). Translation by Max
Knight of Reine Rechtslehre (2nd edn. Vienna, 1960).
(1973), ‘The Foundation of the Theory of Natural Law’, Essays in Legal and
Moral Philosophy (Dordrecht and Boston) 114—53. Translation by Peter Heath of
‘Die Grundlage der Naturrechtslehre’, (1964) 13 Osterreichische Zeitschrift fu'r
offentliches Recht 1—35; reprinted in WRS 869—912.
(1973), ‘Law and Logic’, Essays in Legal and Moral Philosophy 228—53.
Translation by Peter Heath of ‘Recht und Logik’, (1965) 12 Neues Forum 421—5,
495—500, 579; reprinted in WRS 1469—500.
—— (1973), ‘On the Practical Syllogism’, Essays in Legal and Moral Philosophy 257—
60. Translation by Peter Heath of ‘Zur Frage des praktischen Syllogismus’, (1968)
15 Neues Forum 333—4.
(1973), ‘Law and Logic’, Essays in Legal and Moral Philosophy 228—53.
Translation by Peter Heath of ‘Recht und Logik’, (1965) 12 Neues Forum 421—5,
495—500, 579; reprinted in WRS 1469—500.
— (1973), ‘On the Practical Syllogism’, Essays in Legal and Moral Philosophy 257—
60. Translation by Peter Heath of ‘Zur Frage des praktischen Syllogismus’, (1968)
15 Neues Forum 333—4.
(1973), ‘What Is Justice?’ Essays in Legal and Moral Philosophy 1—26.
Translation by Peter Heath of Was ist Gerechtigkeit? (Vienna, 1953). Cf. also
(1957), ‘What Is Justice?’
 References 435

KEYSER, CASSIUS J. (1928), ‘On the Study of Legal Science’, 38 Yale Law journal
413—22.
KLUG, ULRICH (1962), ‘Bemerkungen zur logischen Analyse einiger rechtstheore—
tischer Begriffe und Behauptungen’, Logik und Logik—Kalku'l, ed. Max Kasbauer
and Franz von Kutschera (Freiburg and Munich).
(1966), juristiscloe Logik (3rd edn. Berlin, Heidelberg, and New York).
KOCOUREK, ALBERT (1930), An Introduction to tloe Science ofLaw (Boston).
KONSTAM, E. M. (1944), ‘Acceptance of Rent after Notice to Quit’, 60 Law
Quarterly Review 232—4.
KRAFT, JULIUS (1961), ‘Reason and Experience in Ethics’, 3 Ratio 152—65.
KULPE, OSWALD (1923), Vorlesungen u'laer Logik (Leipzig).
LALANDE, ANDRE (1963), La raison et les normes (Paris).
LANCE, ALBERT (1877), Logisc/oe Studien: Ein Beitrag zur Neulaegru'ndung der
formalen Logik und Erkenntnistloeorie (Iserlohn).
LEVI, EDWARD H. (1948), An Introduction to Legal Reasoning (Chicago).
LLOYD, DENNIS (1948), ‘Reason and Logic in Common Law’, 64 Law Quarterly
Review 468—84.
LOEVINGER, LEE (1952), ‘An Introduction to Legal Logic’, 27 Indiana Law journal
471—522.
LOTZE, HERMANN (1884), Logic (Oxford). Translation (ed. B. Bosanquet)iof Logi/e
(2nd edn. 1880).
LUKASIEWICZ, JAN (1930), ‘Philosophische Bemerkungen zu mehrwertigen Systemen
des Aussagenkalkiils’, 223 Comptes—rendus des se’ances de la sociéte’ des sciences et
des lettres de Varsovie, 3rd ser. xxiii/1—3 (1930) 51—77.
LUNDSTEDT, A. VILHELM (1956), Legal Thinking Revised (Stockholm).
MACH, ERNST (1976), Knowledge and Error (Dordrecht and Boston). Translation by
Paul Foulkes and Thomas J. McCormack of Erkenntnis und Irrtum (5th edn.
Leipzig, 1926).
MAIER, HEINRICH (1908), Psychologie des emotionalen Denkens (Tubingen).
MAITLAND, F. W. (1903), Introduction to Year Books of Edward II, (Publications of
the Selden Society, 17; London, 1903) ix—xcii.
MALLY, ERNST (1926), Die Grundgesetze des Sollens (Graz).
MARCIC, RENE (1965), ‘Um eine Grundlegung des Rechts’, in Die ontologisclae
Begru'ndung des Reclats, ed. A. Kaufmann (Darmstadt, 1965), 509—65.
MARSH, NORMAN (1961), ‘The Rule of Law as a Supra-National Concept’, Oxford
Essays in jurisprudence (Oxford) 223—64.
MAUTHNER, FRITz (1923), Beitra'ge zu einer Kritik der Spracloe (3rd edn. Leipzig).
MAYO, BERNARD (1957), ‘Symposium: Varieties of Imperatives’, 31 Aristotelian
Society Supplementary Volume 161—74.
MEINONG, ALEXIUS (1983), On Assumptions (Berkeley and Los Angeles),. Translation
by James Heanue of Uber Anna/omen (2nd edn. Leipzig, 1910).
MERKEL, ADOLE (1913), juristiscloe Encyclopa'die (5th edn. Berlin).
MERKL, ADOLE (1917), ‘Die Rechtseinheit des Osterreichischen Staates’, (1918) 37
Arc/oiv des offentlicloen Reclats 56.
(1927), Allgemeines Verwaltungsreclot (Vienna).
MESSER, AUGUST (1925), Et/oik (2nd edn. Leipzig).
(1927), Einfu'lorung in die Erkenntnistloeorie (3rd edn. Leipzig).
MEYNIAL, E. (1908), ‘Du rOle de la logique dans la formation scientifique du droit’,
16 Revue de me’taplaysique et de morale 164—89.
MIEDZIANAGORA, J. (1963), ‘Droit positif, logique et rationalité’, 6 Logique et
analyse (n.s.) 369—84.
MILL, JOHN STUART (1898), A System ofLogic (London, New York, and Bombay).
MOOR, JULIUS (1927), ‘Das Logische im Recht’, 2 Revue internationale de la
ploilosoploie du droit / Internationale Zeitsclariftfur Theorie des Rec/ots 157—203.
436 References

MOORE, GEORGE EDWARD (1948), Principia Ethica (Cambridge).

MORITZ, MANFRED (1941), ‘Gebot und Pflicht: Eine Untersuchung zur imperativen
Ethik’, 7 Theoria 219—57.
—— (1951), ‘Uber den Satz “Die Handlung H Ist Pflicht”,’ 17 Theoria 176—82.
— (1953), ‘Verpflichtung und Freiheit: Uber den Satz “Sollen impliziert KOnnen”
19 Theoria 131—71.
— (1954), ‘Der praktische Syllogismus und das juridische Denken’, 20 Theoria 78—
127.
MOSER, SHIA (1956), ‘Some Remarks about Imperatives’, 17 Philosophy and
Phenomenological Research, 186—206.
NORTHROP, F. S. C. (1959), The Complexity of Legal and Ethical Experience
(Boston and Toronto).
(1963), ‘The Epistemology of Legal Judgments’, 58 Northwestern University
Law Review 732—49.
OLIPHANT, H., and Hewitt, A. (1938), ‘Introduction to Rueff’s From the Physical to
the Social Sciences’, in Readings in jurisprudence, ed. Jerome Hall (Indianapolis)
355—63.
OLIVECRONA, KARL (1959), ‘The Legal Theories of Axel HagerstrOm and Vilhelm
Lundstedt’, 3 Scandinavian Studies in Law 125—50.
PASCAL, BLAISE, The Provincial Letters (London, 1967). Translation by A. J.
Krailsheimer of Les Provinciales.
PATON, GEORGE W. (1946), A Textbook ofjurisprudence (Oxford).
PERELMAN, CHAIM (1959), ‘La spécificité de la preuve juridique’, 74 journal des
trihunaux 661.
(1960), ‘Logique formelle, logique juridique’, 3 Logique et analyse (n.s.) 226—
30.
(1961), ‘La distinction du fait et du droit: Le point de vue du logicien’, Le fait et
le droit (Brussels) 269—78.
(1963), The Idea offustice and the Problem ofArgument (New York).
and OLBRECHTs—TYTECA, L. (1969), The New Rhetoric: A Treatise on
Argumentation (Notre Dame). Translation by John Wilkinson and Purcell Weaver
of Traite’ de l’argumentation: La nouvelle rhétorique (Paris, 1958).
PETREMENT, SIMONE (1947), Le dualisme chez Platon, les Gnostiques et les
Manichéens (Paris).
PFANDER, ALEXANDER (1921), ‘Logik’, 4 jahrhuch fur Philosophie und pha'nomeno-
logische Forschung 139—494.
(1930), Pha’nomenologie des Wollens (2nd edn. Leipzig).
PHILIPPS, LOTHAR (1964), ‘Rechtliche Regelung und formale Logik’, 50 Archiv fur
Rechts- und Sozialphilosophie 317—29.
PIAGET, JEAN (1949), Traite’ de logique (Paris).
PLATO, The Dialogues ofPlato (translated by B. Jowett, 4th edn. Oxford, 1953).
POINCARE, HENRI (1913), ‘La morale et la science’, Dernierespense’es (Paris) 223—47.
POPPER, KARL (1957), ‘Philosophy of Science: A Personal Report’, British
Philosophy in the Mid-Century, ed. C. A. Mace (lst edn. London) 155—91.
(1962), ‘Die Logik der Sozialwissenschaften’, 14‘ Kolner Zeitschrift fu'r
Soziologie und Sozialpsychologie 233—63.
POUND, ROSCOE (1933), ‘Hierarchy of Sources and Forms in Different Systems of
Law’, Tulane Law Review 475—87.
(1959),]urisprudence (St Paul).
PRICHARD, H. A. (1912), ‘Does Moral Philosophy Rest on a MistakeP’, 21 Mind 21—
37.
PRIOR, ARTHUR N. ( 1949), Logic and the Basis of Ethics (Oxford).
RADBRUCH, GUSTAV (1967), Der Handlungshegriff in seiner Bedeutung fur das
Strafrechtssystem (Darmstadt).
 References 437

RAND, ROSE (1939), ‘Die Logik der Forderungssatze’, 1 Revue internationale de la

théorie du droit / Internationale Zeitschriftfur Theorie des Rechts (n.5,) 308—22.
REGELSBERGER, FERDINAND (1893), Pandekten (Leipzig).
REICHENBACH, HANS ( 1949), The Theory of Probability (Berkeley and Los Angeles).
Translation by Ernest H. Hutten and Maria Reichenbach of Wahrscheinlich/eeits—
lehre (Leyden, 1935).
REINHOLD, E. (1832), Theorie des menschlichen Erkenntnisvermo'gens (Gotha and
Erfurt).
(1842), System der Metaphysik (Jena).
RICKERT, HEINRICH (1910), ‘Vom Begriff der Phi1050phie’, 1 Logos 1—12.
RIPERT, GEORGES (1933), ‘Les régles du droit civil applicables aux rapports
internationaux’, [1933] 2 Recueil de cours (Académie de droit international) 569—
664.
ROONEY, MIRIAM THERESA (1941), ‘Law and the New Logic’, 4 University ofDetroit
Lawjourna1126.
ROSS, ALF (1929), Theorie der Rechtsquellen (Vienna).
—— (1933), Kritik der sogennanten praktischen Er/eenntnis (Copenhagen).
— (1941), ‘Imperatives and Logic’, 7 Theoria 53—71.
ROSS, DAVID (1939), Foundations of Ethics (Oxford).
—— (1951), Plato’s Theory of Ideas (Oxford).
RUMPF, MAX (1912), Der Strafrichter, i, Die tatsa'chlichen Feststellungen und die
Strafrechtstheorie (Berlin).
RUSSELL, BERTRAND (1948), An Inquiry into Meaning and Truth (London).
(1960), Religion and Science (London).
RYLE, GILBERT (1949), The Concept ofMind (New York).
(1957), ‘The Theory of Meaning’, British Philosophy in the Mid—Century, ed. C.
A. Mace (lst edn. London) 239—64.
SCHELER, MAX (1899), Beitra'ge zur Feststellung der Beziehung zwischen den
logischen und ethischen PrinZipien (Inaugural dissertation, Jena).
(1973), Formalisrn in Ethics and Non-Formal Ethics of Values (Evanston).
Translation by Manfred S. Frings and Roger L. Funk of Der Formalisrnus in der
Ethik und die materiale Wertethi/e (5th edn. Bern, 1966).
SCHLICK, MORITZ (1939), Prohlems of Ethics (New York). Translation by David
Rynin of Fragen der Ethik (Vienna, 1930).
SCHOLz, HEINRICH (1931), Geschichte der Logik (Berlin).
SCHREIBER, RUPERT (1962), Logile des Rechts (Berlin, GOttingen, and Heidelberg).
SIDGWICK, HENRY (1963), The Methods ofEthics (London).
SIGWART, CHRISTOPH (1889), ‘Der Begriff des Wollens und sein Verhaltnis zum
Begriff der Ursache’, Kleine Schriften (2nd edn. Freiburg im Breisgau and
Tubingen), ii. 115.
(1895), Logic (London). Translation by Helen Dendy of Logik (2nd edn.
Freiburg im Breisgau, 1889).
(1924), Logik (5th edn. Tubingen).
SIMITIS, SPIROS (1960), ‘The Problem of Legal Logic’, 3 Ratio 60—94.
SIMMEL, GEORG (1892), Einleitung in die Moralwissenschaft (Berlin).
SOHNGEN, GOTTLIEB (1962), Grundfragen einer Rechtstheologie (Munich).
STAMMLER, RUDOLF (1911), Theorie der Rechtswissenschaft (Halle a. d. Saale).
(1924), Wirtschaft und Recht (5th edn. Berlin).
STEBBING, SUSAN (1957), A Modern Elementary Logic (London).
STEVENSON, CHARLES L. (1947), Ethics and Language (New Haven).
STONE, JULIUS (1946), The Province and Function of Law (London).
STORER, THOMAS (1946), ‘The Logic of Value Imperatives’, 13 Philosophy of Science
25—40.
STRAWSON, P. W. (1961), ‘Social Morality and Individual Ideal’, 36 Philosophy 1—17.
438 References

TAMMELO, ILMAR (1955), ‘Sketch for a Symbolic Logic’, 8 journal of Legal Education
277-306.
(1959), ‘Justice and Doubt: An Essay on the Fundamentals of Justice’, 9
Osterreichische Zeitschrift fur Offentliches Recht (n. s. ) 308—417.
(1963), ‘The Rule of Law and the Rule of Reason in International Legal
Relations’, 6 Logique et analyse (n.s.) 335—68.
(1964), ‘Law, Logic and Human Communication’, 50 Archiv fur Rechts— und
Sozialphilosophie 331—66.
TEICHMI’ILLER, GUSTAV (1879), Die praktische Vernunft hei Aristoteles (Gotha).
TOULMIN, STEPHEN EDELSON (1958), The Uses ofArgument (Cambridge).
(1960), An Examination of the Place of Reason in Ethics (Cambridge).
TRENDELENBURG, A (1868), Naturrecht auf dem Grunde der Ethik (2nd edn.
Leipzig).
TURNBULL, ROBERT G. (1960), ‘Imperatives, Logic and Moral Obligation’, 27
Philosophy ofSczence 374—90.
UBERWEG, FRIEDRICH (1857), System der Logik und Geschichte der logischen Lehren
(Bonn
UTZ, A. l: (1953), Rechtund Gerechtigkeit [Questions 57—79 of Summatheologica II—II:
text and commentary] (Die deutsche Thomas-Ausgabe, 18; Munich and Salzburg).
VAIHINGER, HANS (1935), The Philosophy of ‘As 1}" (2nd edn. London). Translation
by C. K. Ogden of Die Philosophie des Als—Oh (6th edn. Leipzig, 1920).
VERDROSS, ALFRED (1935), ‘Les principes généraux du droit dans la jurisprudence
internationale’, [1935] 2 Recueil de cours (Académie de droit international) 195—
251.
—— (1964), VOlkerrecht (5th edn. Vienna).
VONLANTHEN, ALBERT (1965), Zu Hans Kelsens Anschauung u'her die Rechtsnorm
Berlin).
WALLIS—WALFIscz, MIECZYSLAW (1937), ‘Les énoncés des appreciations et des
normes’, 2 Studia philosophica 421—37.
WALTER, JULIUS (1874), Die Lehre von der praktischen Vernunft in der griechischen
Philosophie (Jena).
WEDBERG, ANDERS (1951), ‘Some Problems in the Logical Analysis of Legal Science’,
17 Theoria 246-75. «
WELLMAN, CARL (1961), The Language ofEthics (Cambridge, Mass.).
WINDELBAND, WILHELM (1904), 'Uher Willensfreiheit (Tubingen and Leipzig).
WITTGENSTEIN, LUDWIG (1953), Philosophical Investigations (German text with
English translation by G. E M. Anscombe, Oxford).
(1961), Tractatus logico-philosophicus (German text with new English transla—
tion by D. F. Pears and B. F. McGuinness, (London).
WOLF, HANS (1957), Plato: Der Kampfums Sein (Bern).
WRIGHT OF DURLEY, LORD (1939), Legal Essays and Addresses (Cambridge).
WRIGHT, G. H. VON (1951), ‘Deontic Logic’, 60 Mind 1—15. Reprinted in von Wright
(1957)
— (1957), Logical Studies (New York). Contains (58—74) von Wright (1951).
WROBLEWSKI, JERZY (1963), ‘Semantic Basis of the Theory of Legal Interpretation’, 6
Logique et analyse (n. s. ) 397—416.
(1964), ‘The Problem of the Meaning of the Legal Norm, 14 Osterreichische
Zeitschriftfiir Offentliches Recht (n. s. ) 253—66.
WUNDT, WILHELM (1908), Logik (3rd edn. Stuttgart).
WURZEL, KARL GEORG (1904), Das juristische Denken (Vienna).
YNTEMA, HESSEL E. (1927), ‘The Hornbook Method and the Conflict of Laws’, 37
Yale Law journal, 468—83.
(1931), ‘The Rational Basis of Legal Science’, 31 Columbia Law Review
925—55.
 References 439

ZELLER, EDUARD (1897), Aristotle and the Earlier Peripatetics (London). Translation
by B. F. C. Costelloe and J. H. Muirhead of Part ii, sect. 2, of Die Ploilosop/oie der
Griec/oen (Tfibingen, 1862).
ZIEMBINSKI, ZYGMUNT (1963), ‘La vérification des faits dans un procés judiciaire’, 6
Logique et analyse (n.s.) 385—96.
ZITELMANN, ERNST (1879), Irrtum and Rec/otsgesc/ac'zft (Leipzig).
 APPENDIX: Bibliography of
Kelsen’s Publications in English

Kelsen’s biographer, Rudolf A. Métall, compiled a bibliography of Kelsen’s works

and included it in his Hans Kelsen: Leben imd Werk (Vienna: Deuticke, 1969), 122—
161. This bibliography was brought up to date in Die Reine Rec/otsle/ore in
wissensc/oaftlic/oer Diskussion (Vienna: Manz, 1982), 215—21. The Métall bibliography
is in chronological order; original publications, reprints, and translations are all
treated as separate items and are assigned separate numbers. The total number of
items (up to 1981) is 675.
Robert Walter, one of the directors of the Hans Kelsen Institute in Vienna,
included a new bibliography of Kelsen’s works in his Hans Kelsen: Ein Leben im
Dienste der Wissensc/oaft (Vienna: Manz, 1985), 27—107. Kelsen’s original works are
listed in three different ways: alphabetically, chronologically, and by subject—matter.
In the chronological list, reprints and translations are included under the same
number as the original work. The total number of original works is 387. The Walter
bibliography can now be considered the definitive listing of Kelsen’s works.
Of the 24 languages in which Kelsen’s works have appeared, the language with the
most titles after German is English. Of the 387 works in the Walter bibliography, 139
were either published originally in English or eventually translated into English: 18
books (including two collections of articles) and 121 articles. They fall into the
following categories in Walter’s list of titles by subject-matter (some works
appearing in more than one category):

Total English
1. Constutional Law 92 2
2. International Law 106 66
3. Legal Theory 96 38
4. Political Theory 41 8
5. Social Theory 18 7
6. Theory ofJustice 24 15
7. Personalia 21 3
8. Miscellaneous 18 2

For the benefit of the English-speaking reader, all of Kelsen’s English—language

works (including six translations which do not appear in Walter’s bibliography) are
listed here both chronologically and alphabetically. The chronological list is the main
bibliography, the alphabetical list being intended merely to allow a particular work
to be located in the chronological list.
In the chronological list, each title is preceded by the number it bears in Walter’s
bibliography; where an English publication is a translation, the number is that of the
original work (since translations have no separate number), and so the chronological
order is that of the original publications. To the right of each entry, an abbreviation
indicates the general area of the work:
 Appendix 441
CON Constitutional Law
INT International Law
JUS Theory of Justice
LEG Legal Theory
MIS Miscellaneous
POL Political Theory and Political Science
SOC Social Theory
Since translations and reprints are not included as separate items in the Walter
bibliography, Essays in Moral and Legal Philosophy (1973), a collection of
translations of previously published articles, is not listed or assigned a number. It is
included in the following bibliography at its chronological place (but without a
number).
Certain anthologies are referred to by abbreviations:
AI Aufsa‘tze Zur Ideologiekritik, ed. Ernst T0pitsch (Neuwied—am-Rhein
and Berlin: Luchterhand, 1964).
ELMP Essays in Legal and Moral Philosophy (1973).
W] What isjustice? (I957).
WRS Die Wiener rechtstheoretische Schule, ed. Klecatsky, Marcie, and Scham—
beck (Vienna, Frankfurt, and Ziirich: Europa Verlag, and Salzburg and
Munich: Universitatsverlag Anton Pustet, 1968).

I. ALPHABETICAL LIST OF KELSEN’S PUBLICATIONS IN ENGLISH

‘Absolutism, Political’: 306

‘Absolutism and Relativism in Philosophy and Politics’: 274
‘Aristotle’s Doctrine of Justice’: 329a
‘Atlantic Pact and the UN Charter, The’: 282
Austria: Her Actual Legal Status and Re-estahlishment as an Independent State: 247
‘Basis of Obligation in International Law, The’: 330

‘Causality and Accounting’: 341

‘Causality and Imputation’: 312
‘Causality and Retribution’: 219, 220a
‘Centralization and Decentralization’: 212
‘Collective and Individual Responsibility for Acts of States in International Law’:
283
‘Collective and Individual Responsibility in International Law with Particular
Regard to Punishment of War Criminals’: 240
‘Collective Security and Collective Self—defense under the Charter of the United
Nations’: 275
Collective Security under International Law: 324
Communist Theory ofLaw, The: 313
‘Compulsory Adjudication of International Disputes’: 241
‘Concept of the Legal Order, The’: 331
‘Conception of the State and Social Psychology: With Special Reference to Freud’s
Group Theory, The’: 64
‘Conflicts between Obligations under the Charter of the United Nations and other
International Agreements’: 284
‘Constutional Function, The’: 358
‘Contiguity as a Title to Territorial Sovereignty’: 319
442 Appendix
‘Democracy and Socialism’: 314
‘Derogation’: 350
‘Draft Declaration on Rights and Duties of States, The’: 290
‘ “Dynamic” Theory of Natural Law, A’: 320

‘Emergence of the Causal Law from the Principle of Retribution, The’: 220
‘Encounters and Problems’: 360
Essays in Legal and Moral Philosophy (between 382 and 385)
‘Essence of International Law, The’: 382
‘Essential Conditions of International Justice, The’: 228

Foreword to J. Sette Camara, The Ratification ofInternational Treaties: 285

‘Foundation of the Natural Law Doctrine’: 355
‘Foundation of the Theory of Natural Law, The’: 355
‘Foundations of Democracy’: 315
‘Free Territory of Trieste under the United Nations, The’: 293
‘Function of a Constitution, The’: 358
‘Function of the Pure Theory of Law, The’: 210
‘Future of Collective Security, The’: 295

‘General International Law and the Law of the United Nations’: 321
General Theory ofLaw and State: 255
General Theory ofNorms: 385
‘German Peace Terms’: 271
‘God and the State’: 74

‘Hersch Lauterpacht’: 347

‘Hundredth Birthday of Josef Kohler, The’: 286

‘Idea of Justice in the Holy Scriptures, The’: 305

‘Idea of Natural Law, The’: 132
‘International Court of Justice, The’, Comments on: 260
‘International Law and Diplomacy’: 363
‘International Law of the Future, The’: 261
‘International Legal Status of Germany to be Established Immediately upon
Termination of the War, The’: 250
‘International Peace — by Court or Government?’: 229
Introduction to the Problems of Legal Theory: A Translation of the First Edition of
the Reine Rechtslehre: 199
‘Is a Peace Treaty with Germany Legally Possible and Politically DesirableP’: 270
‘Is the Acheson Plan ConstitutionalP’: 291
‘Is the North Atlantic Treaty a Regional Arrangement?’: 296
‘Is the North Atlantic Treaty in Conformity with the Charter of the United
Nations?’: 294, 297

‘Judicial Review of Legislation: A Comparative Study of the Austrian and the

American Constitution’: 234

‘Law and Logic’: 364, 368

‘Law and Logic Again’: 378
‘Law and Morality’: 342
Law and Peace in International Relations: 235
‘Law as a Specific Social Technique, The’: 230
 Appendix 443
Law of the United Nations: A Critical Analysis of Its Fundamental Problems, The:
292
‘Law, State and Justice in the Pure Theory of Law’: 277
Legal Process and International Order, The: 198
‘Legal Process and International Order, The’: 197
‘Legal Status of Germany according to the Declaration of Berlin, The’: 256
Legal Technique in International Law: A Textual Critique of the League Covenant:
221
‘Limitations on the Functions of the United Nations’: 262

‘Membership in the United Nations’: 263

‘Metamorphoses of the Idea of Justice, The’: 272

‘Natural Law Doctrine and Legal Positivism’: 137

‘Natural Law Doctrine before the Tribunal of Science, The’: 287
‘Norm and Value’: 371
‘North Atlantic Defense Treaty and the Charter of the United Nations, The’: 288

‘Old and the New League: The Covenant and the Dumbarton Oaks Proposals, The’:
257 '
‘On the Basic Norm’: 336
‘On the Basis of Legal Validity’: 345
‘On the Concept of Norm’: 370
‘On the Practical Syllogism’: 381
‘On the Pure Theory of Law’: 372
‘Organization and Procedure of the Security Council of the United Nations’: 264

Party—Dictatorship, The’: 213

Peace through Law: 251
‘Peace through Law’: 244
‘Philosophy of Aristotle and the Hellenic-Macedonian Policy, The’: 189
‘Plato and the Doctrine of Natural Law’: 328
‘Platonic Justice’: 192
‘Platonic Love’: 193
Political Theory ofBolshevism: A Critical Analysis, The: 278
‘Politics, Ethics, Religion and Law’: 356
‘Post—War Problems: Discussion of Professor Whitehead’s Paper’: 233
‘Preamble of the Charter: A Critical Analysis, The’: 265
‘Principle of Sovereign Equality of States as a Basis for International Organisation,
The’: 252
Principles ofInternational Law: 302, 373
‘Problems of Collective Security’: 334
‘Professor Stone and the Pure Theory of Law’: 367
Pure Theory of Law, The: 199, 343
‘Pure Theory of Law, The’: 374
‘Pure Theory of Law: Its Method and Fundamental Concept, The’: 199a
‘Pure Theory of Law and Analytical Jurisprudence, The’: 231

‘Quincy Wright’s A Study of War and the Bellumjustum Theory’: 245

‘Recent Trends in the Law of the United Nations’: 298, 299

‘Recognition in International Law: Theoretical Observations’: 232
444 Appendix
Review of J. L. Brierly, T/oe Basis of Obligation in International Law and Other
Papers: 332
Review of H. Cairns, Tloeory of Legal Science: 226
Review of R. Lemkin, Axis Rule in Occupied Europe: 259
Review of A. Nussbaum, Principles ofPrivate International Law: 238
Review of Roscoe Pound, Contemporary juristic Tloeory: 227
Review of W. Schiffer, Repertoire of Questions of General International Law before
the League ofNations, 1920—1940: 239
Review of L. Stapleton, justice and World Society: 248
Review of M. K. Wise, Requisition in France and Italy: The Treatment of National
Private Property and Services: 254
‘Revision of the Covenant of the League of Nations’: 236
‘Roscoe Pound’s Outstanding Contribution to American Jurisprudence’: 266
‘Rule against Ex Post Facto Laws and the Prosecution of Axis War Criminals, The’:
258

‘Sanctions in International Law under the Charter of the United Nations’: 267
‘Sanctions under the Charter of the United Nations’: 268
‘Science and Politics’: 300
‘Separation of the Covenant of the League of Nations from the Peace Treaties, The’:
216
‘Settlement of Disputes by the Security Council, The’: 279
Society and Nature: A Sociological Inquiry: 246
‘Soul and the Law, The’: 205
‘Sovereignty and International Law’: 344
‘State-Form and World—Outlook’: 195
‘Strategy of Peace, The’: 253

‘Value Judgments in the Science of Law’: 237

‘What Happened to the Security Council?’: 301

‘What Is a Legal Act?: 304
Wloat is justice? : 329
‘What is Justice?’: 310
‘What Is the Pure Theory of Law?’: 346
‘What Is the Reason for the Validity of Law?’: 322
‘Why Should the Law Be Obeyed?’: 32919
‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International
Law?’: 273
‘Withdrawal from the United Nations’: 280

2. CHRONOLOGICAL LIST OF KELSEN’S PUBLICATIONS IN ENGLISH

64. ‘The Conception of the State and Social Psychology: With LEG
Special Reference to Freud’s Group Theory’, (1924) 5
Internationaljournal ofPsyc/oo-analysis 1—38.
Translation of ‘Der Begriff des Staates und die Sozial-
psychologie: Mit besonderer Berucksichtigung von Freuds
Theorie der Masse’, (1922) 8 Imago 97—141.
74. ‘God and the State’, ELMP 61—82. LEG
Translation (by Peter Heath) of ‘Gott und Staat’, (1922/3)
11 Logos 261—84.
 Appendix 445
132. ‘The Idea of Natural LaW’, ELMP 27—60. JUS
Translation (by Peter Heath) of ‘Die Idee des Natur—
rechtes’, (1927—8) 7 Zeitschriflfiir offentliches Recht 221—50.
137. ‘Natural Law Doctrine and Legal Positivism’, published as LEG, JUS
Appendix to General Theory of Law and State 389—446; cf.
255 below.
Translation (by Wolfgang Herbert Kraus) of Die philo-
sophischen Grandlagen der Natarrechtslehre and des
Rechtspositivismas (Charlottenburg: Pan—Verlag Rolf Heise,
1928), 78pp.
189. ‘The Philosophy of Aristotle and the Hellenic—Macedonian JUS
Policy’, (1937) 48 Internationaljournal of Ethics 1—64.
Translation of ‘Die hellenisch—makedonische Politik und
die Politik des Aristoteles’, (1933) 13 Zeitschrift fiir offent-
liches Recht 625—78; reprinted in AI 293—357.
192. ‘Platonic Justice’, (1937—8) 48 Ethics 269—96, 367—400; JUS
reprinted in W] 82—109, 380.
Translation of ‘Die platonische Gerechtigkeit’, (1933) 38
Kant-Stadien 91—117; reprinted in A1 198—231.
193. ‘Platonic Love’, (1942) 3 The American Imago 3—110. JUS
Translation (by George B. Wilbur) of ‘Die platonische
Liebe’, (1933) 19 Imago 34—98, 225—55; reprinted in AI 114—
97.
195. ‘State-Form and World—Outlook’, ELMP 95—113. POL
Translation (by Peter Heath) of Staatsform and Weltan-
schaang (Tiibingen: J. C. B. Mohr (Paul Siebeck), 1933),
30 pp. Reprinted in WRS 1923—42 and Demokratie and
Sozialismas, ed. Norbert Leser (Vienna: Verlag der Wiener
Volksbuchhandlung, 1967) 40—59.
197. ‘The Legal Process and International Order’, (1934) 2 The INT
New Commonwealth 104—5, 122—3.
198. The Legal Process and International Order, translated by INT
W. Horsfall Carter (London: Constable, 1934), 27 pp.
199. Introduction to the Problems of Legal Theory: A Translation LEG
of the First Edition of the Reine Rechtslehre (Oxford: OUP,
forthcoming).
Translation (by Bonnie Litchewski Paulson and Stanley
L. Paulson) of Reine Rechtslehre: Einleitang in die rechts—
wissenschaftliche Prohlemati/e (Leipzig and Vienna: F.
Deuticke, 1934), xv and 236 pp.
199a. ‘The Pure Theory of Law: Its Method and Fundamental LEG
Concept’, (1934) 50 Law Quarterly Review 474—98, (1935)
51 LQR 517—35; reprinted in Bobbs-Merril Reprint Series
in the Social Sciences, PS—150 (Indianapolis).
Translation (by Charles H. Wilson) of part of Reine
Rechtslehre (cf. 199).
205. ‘The Soul and the Law’ (1937) 1 The Review of Religion JUS
337—60.
Translation of ‘L’ame et le droit’, IIe Annaaire de
l’Institat international de philosophie da droit et de sociol-
ogiejaridiqae (Paris: Sirey, 1936) 60—82.
446 Appendix
210. ‘The Function of the Pure Theory of Law’, Law: A Century LEG
of Progress, 1835 to 1935 (New York: New York Univ.
Press, 1937) ii. 231—41.
Translation of ‘Die Ziele der Reinen Rechtslehre’, Pocta k
sesdesiatym narodeninam dr. Karla Lastovku (Bratislava,
1936) 203—12.
212. ‘Centralization and Decentralization’, translated by Wolf- LEG
gang Herbert Kraus, in Authority and the Individual
(Cambridge, Mass.: Harvard Univ. Press, 1937) 210—39.
213. ‘The Party—Dictatorship’, (1936) 2 Politica 19—32. POL
Translation of an article ‘Die Parteidiktatur’ available
only as an offprint, as the Festschrift for which it was
written was never published.
216. ‘The Separation of the Covenant of the League of Nations INT
from the Peace Treaties’, The World Crisis: Symposium of
Studies published on the occasion of the tenth Anniversary of
the Graduate Institute of International Studies (London,
New York, and Toronto: Longmans Green, 1938) 133—59.
Translation (by James Lawson Mowat) of ‘De la separa—
tion du Pacte de la Société des Nations et des traités de paix’,
La Crise mondiale: Collection d’études puhliée a l’occasion
du dixiéme anniversaire de l’Institut universitaire des hautes
études internationales par ses professeurs (Ziirich: Editions
polygraphiques, and Paris: Sirey, 1938) 143—73.
219. ‘Causality and Retribution’, article intended for vol. ix SOC
(1939) of Erkenntnis; this volume was never published, and
the article is available only as an offprint.
220. ‘The Emergence of the Causal Law from the Principle of SOC
Retribution’, ELMP 165—215.
Translation (by Peter Heath) of ‘Die Entstehung des
Kausalgesetzes aus dem Vergeltungsprinzip’, (1939) 8 Erk-
enntnis, 69—130.
220a. ‘Causality and Retribution’, (1941) 8 Philosophy of Science SOC
533—56; reprinted in W] 303—23, 393—4.
Translation of part of ‘Die Entstehung des Kausalgesetzes
aus dem Vergeltungsprinzip’, cf. 220 above.
221. Legal Technique in International Law: A Textual Critique INT
of the League Covenant (Geneva Research Centre, 1939),
178 pp.
226. Review of H. Cairns, Theory of Legal Science (Chapel Hill, LEG
1941), (1941) 27 Iowa Law Review 174—80.
227. Review of Roscoe Pound, Contemporary juristic Theory (Los LEG
Angeles, 1940), (1941) 54 Harvard Law Review 1261—2.
228. ‘The Essential Conditions of International Justice’, Proceed— INT
ings of the Thirty—fifth Annual Meeting of the American
Society of International Law, 24—26 April 1941 (Washing—
ton: American Society of International Law, 1941) 70—86,
91.
229. ‘International Peace — by Court or Government?’, trans- INT
lated by Aaron Bell, (1941) 46 American journal of Sociology
571—81.
 Appendix 447
230. ‘The Law as a Specific Social Technique’, (1941) 9 Univer— LEG, soc
sity of Chicago Law Review 75—97; reprinted in W] 231—56,
389.
231. ‘The Pure Theory of Law and Analytical Jurisprudence’, LEG
(1941) 55 Harvard Law Review 44—70; reprinted in W] 266—
87, 390.
232. ‘Recognition in International Law: Theoretical Observa- INT
tions’, (1941) 35 American journal of International Law
‘605—17; reprinted in International Law in the Twentieth
Century (New York: Appleton Century Crofts, 1969) 589—
601.
233. ‘Post—war Problems: Discussion of Professor Whitehead’s INT
Paper’, (1942—4) 75 Proceedings of the American Academy of
Arts and Sciences 11—13.
234. ‘Judicial Review of Legislation: A Comparative Study of the CON
Austrian and the American Constitution’, (1942) 4 journal
ofPolitics 183—200.
235. Law and Peace in International Relations (The Oliver INT .
Wendell Holmes Lectures 1940—1; Cambridge, Mass.:
Harvard Univ. Press, 1942), xi and 181 pp. Reprint: 1948.
236. ‘Revision of the Covenant of the League of Nations’, World INT
Organisation: A Symposium of the Institute of World
Organisation (1942) 392—412.
237. ‘Value Judgments in the Science of Law’, (1942) 7 journal of LEG
Social Philosophy and jurisprudence 312—33; reprinted in W]
209—30, 389.
238. Review of A. Nussbaum, Principles of Private International INT
Law (New York, 1943), (1943) 31 California Law Review
468—73.
239. Review of W. Schiffer, Repertoire of Questions of General INT
International Law before the League of Nations, 1920—1940
(Geneva, 1940), (1943) 37 American journal of International
Law 352—3 .
240. ‘Collective and Individual Responsibility in International INT
Law with Particular Regard to Punishment of War Crim-
inals’, (1943) 31 California Law Review 530—71.
241. ‘Compulsory Adjudication of International Dis utes’, INT
(1943) 37 American journal ofInternational Law 397 06.
244. ‘Peace through Law’, (1943) 2 journal of Legal and Political INT
Sociology 52—67.
245. ‘Quincy Wright’s A Study of War and the Bellum justum INT
Theory’, (1943) 53 Ethics 208—11.
246. Society and Nature: A Sociological Inquiry (Chicago: Univ. SOC
of Chicago Press, 1943, and London: International Library
of Sociology and Social Reconstruction, 1946), viii and
391 pp.
247. Austria: Her Actual Legal Status and Re-estahlishment as an INT
Independent State (Berkeley, 1944), 15pp.
248. Review of L. Stapleton, justice and World Society (Chapel INT
448 Appendix
Hill, 1944), (1944) 38 American journal of International
Law 746—7.
250. ‘The International Legal Status of Germany to be Estab- INT
lished Immediately upon Termination of the War’, (1944) 38
American journal ofInternational Law 689—94.
251. Peace tlorougla Law (Chapel Hill: Univ. of North Carolina INT
Press, 1944), xii and 155 pp.
252. ‘The Principle of Sovereign Equality of States as a Basis INT
for International Organisation’, (1944) 53 Yale Law
journal 207—20.
253. ‘The Strategy of Peace’, (1944) 49 American journal of INT
Sociology 381—9.
254. Review of M. K. Wise, Requisition in France and Italy: Tloe INT
Treatment of National Private Property and Services (New
York, 1944), (1945) 58 Harvard Law Review 751—3.
255. General Tloeory of Law and State, translated by Anders LEG
Wedberg (Cambridge, Mass: Harvard Univ. Press, 1945),
xxxiii and 516 pp. Reprints: 1946, 1949, 1961, 1973.
256. ‘The Legal Status of Germany according to the Declaration INT
of Berlin’, (1945) 39 American journal of International Law
518—26.
257. ‘The Old and the New League: The Covenant and the INT
Dumbarton Oaks Proposals’, (1945) 39 American journal of
International Law 45—83.
258. ‘The Rule against Ex Post Facto Laws and the Prosecution INT
of Axis War Criminals’, (1945) 2 Tloe judge Advocate
journal 8—12, 27, 46.
259. Book Review of R. Lemkin, Axis Rule in Occupied Europe INT
(Washington, 1944), (1946) 34 California Law Review
271-2.
260. Comments on ‘The International Court of Justice’ by Franz INT
B. Schick and Betty Davies, Tloe San Francisco Conference
and tloe United Nations Organisation: Proceedings of tloe
Institute of World Affairs, 215t session 1945 (Los Angeles:
Univ. of Southern California, 1946) 102, 110, 111.
261. ‘The International Law of the Future’, Tloe San Francisco INT
Conference and tloe United Nations Organisation: Proceed-
ings of the Institute of World Affairs, 21$t session 1945 (Los
Angeles: Univ. of Southern California, 1946) 190—203.
262. ‘Limitations on the Functions of the United Nations’, INT
(1946) 55 Yale Lawjournal 997—1015.
263. ‘Membership in the United Nations’, (1946) 46 Columbia INT
Law Review 391—411; reprinted in Essays in International
Law from Columbia Law Review (New York, 1965), 383—
403.
264. ‘Organization and Procedure of the Security Council of the INT
United Nations’, (1946) 59 Harvard Law Review 1087—121.
265. ‘The Preamble of the Charter: A Critical Analysis’, (1946) 8 INT
journal ofPolitics 134—59.
 Appendix 449
266. ‘Roscoe Pound’s Outstanding Contribution to American M18
Jurisprudence’, Harvard Law School Year Book 1945—46
12—13.
267. ‘Sanctions in International Law under the Charter of the INT
United Nations’, (1946) 31 Iowa Law Review 499—543.
268. ‘Sanctions under" the Charter of the United Nations’, (1946) INT
12 Canadian journal of Economics and Political Science
429—38.
270. ‘Is a Peace Treaty with Germany Legally Possible and INT
Politically Desirable?’, (1947) 41 American Political Science
Review 1188—93.
271. ‘German Peace Terms’, New York Times (7 Sept. 1947) 10E. INT
272. ‘The Metamorphoses of the Idea of Justice’, Interpretations JUS
of Modern Legal Philosophies: Essays in Honor of Roscoe
Pound (New York: OUP, 1947) 390—418.
273. ‘Will the Judgment in the Nuremberg Trial Constitute a INT
Precedent in International Law?’, (1947) 1 International
Law Quarterly 153—71.
274. ‘Absolutism and Relativism in Philosophy and Politics’, LEG, JUS
(1948) 42 American Political Science Review 906—14; re—
printed in Bobbs—Merrill Reprint Series in the Social
Sciences, PS—149 (Indianapolis); also in Wj 198—208, 388.
275. ‘Collective Security and Collective Self—defense under the INT
Charter of the United Nations’, (1948) 42 American journal
of International Law 783—96.
277. ‘Law, State and Justice in the Pure Theory of Law’, (1948) LEG
57 Yale Law journal 377—90; reprinted in W] 288—306,
390—3.
278. The Political Theory of Bolshevism: A Critical Analysis POL
(Berkeley and Los Angeles: Univ. of California Press, 1948),
iv and 60 pp. Reprints: 1948, 1959.
279. ‘The Settlement of Disputes by the Security Council’, (1948) INT
2 International Law Quarterly 173—213.
280. ‘Withdrawal from the United Nations’, (1948) 1 Western INT
Political Quarterly 29—43.
282. ‘The Atlantic Pact and the UN Charter’, The New Leader INT
(4 June 1949) 10.
283. ‘Collective and Individual Responsibility for Acts of State INT
in International Law’, 1948—9 jewish Yearbook of Interna—
tional Law 226—39.
284. ‘Conflicts between Obligations under the Charter of the INT
United Nations and other International Agreements’, (1949)
10 University ofPittshurgh Law Review 284—94.
285. Foreword to J. Sette Camara, The Ratification of Interna- M18
tional Treaties (Toronto: Ontario Publishing Co., 1949) vii.
286. ‘The Hundredth Birthday of Josef Kohler’, (1949) 43 M18
American journal ofInternational Law 346—7.
287. ‘The Natural Law Doctrine before the Tribunal of Science’, JUS
450 Appendix
(1949) 2 Western Political Quarterly 481—513; reprinted in
VV7137—73,384—8.
288. ‘The North Atlantic Defense Treaty and the Charter of the INT
United Nations’, (1949) 19 Acta Scandinavica juris Gentium
41—8.
290. ‘The Draft Declaration on Rights and Duties of States’, INT
(1950) 44 American journal of International Law 259—76;
reprinted in International Law in the Twentieth Century
(New York: Appleton Century Crofts, 1969) 267—84.
291. ‘Is the Acheson Plan Constitutional?’, (1950) 3 Western CON
Political Quarterly 512—27.
292. The Law of the United Nations: A Critical Analysis of Its INT
Fundamental Problems (London: Stevens, and New York:
Frederick A. Praeger, 1950), xvii and 903 pp. Second
printing (containing 298 below): 1951, xvii and 994 pp.
Reprints: 1954, 1964, 1966.
293. ‘The Free Territory of Trieste under the United Nations’, INT
(1950) 4 Yearbook of World Affairs 174—90.
294. ‘Is the North Atlantic Treaty in Conformity with the INT
Charter of the United Nations?’, (1950—1) 19 University of
Kansas City Law Review 1—15.
295. ‘The Future of Collective Security’, (1951) 21 Revista INT
jurt’dica de la Universidad de Puerto Rico 83—96.
296. ‘Is the North Atlantic Treaty a Regional Arrangement?’, INT
(1951) 45 American journal ofInternational Law 162—6.
297. ‘Is the North Atlantic Treaty in Conformity with the INT
Charter of the United Nations?’, (1951) 3 Osterreichische
Zeitschriftfu'r offentliches Recht 145—55.
298. ‘Recent Trends in the Law of the United Nations’, INT
supplement to The Law of the United Nations (292 above),
909—94.
299. ‘Recent Trends in the Law of the United Nations’, (1951) 18 INT
Social Research 135—51.
300. ‘Science and Politics’, (1951) 45 American Political Science LEG, JUS
Review 641—61; reprinted in Wj 350—75, 397.
301. ‘What Happened to the Security Council?’, The New
Leader (27 Aug. 1951) 10—12, 31.
302. Principles of International Law (New York: Rinehart, INT
1952), xvii and 461 pp. cf. also 373 below.
304. ‘What Is a Legal Act?’, (1984) 29 American journal of LEG
jurisprudence 199—212.
Translation (by Bonnie Paulson and Stanley L. Paulson)
of ‘Was ist ein Rechtsakt?’, (1951/2) 4 Osterreichische
Zeitschrift fu'r offentliches Recht 263—74; reprinted in WRS ii
1381—93 and Internationale Festschrift fu'r Alfred Verdross
zum 80. Gehurtstag (Munich and Salzburg: Wilhelm Fink,
1971)153—65.
305. ‘The Idea of Justice in the Holy Scriptures’, (1952—3) 22 JUS
 Appendix 451

Revista ]uri’a’ica de la Universia’aal de Puerto Rico 1—63;

reprinted in W] 25—81, 378—80.
306. ‘Absolutism, Political’, Encyclopaedia Britannica (1953) POL
i.65—6.
310. ‘What is JusticeP’, W] 1—24, 376—8 and ELMP 1—26. JUS
Two different translations (the second by Peter Heath) of
Was ist Gerechtigkeit.a (Vienna: Deuticke, 1953), iv and
47 pp.
312. ‘Causality and Imputation’, (1950) 61 Ethics 1—11; reprinted SOC
in W] 324—49, 394—7.
Translation of ‘Kausalitat und Zurechnung’, (1954) 6
Osterreichische Zeitschrift fu'r offentliches Recht 125—51;
reprinted in WRS i. 663—92.
313. The Communist Theory of Law (New York: Frederick A. Poi.
Praeger, and London: Stevens, 1955), viii and 203 pp.
Reprint: Aalen: Scientia Verlag, 1976.
314. ‘Democracy and Socialism’, Univ. of Chicago Law School POL
Conference on Jurisprudence and Politics, 30 Apr. 1954
(Conference Series, 15; Chicago, 1955) 63—87.
315. ‘Foundations of Democracy’, (1955) 66 Ethics 1—101. POL
319. ‘Contiguity as a Title to Territorial Sovereignty’, Rechts- INT
fragen der internationalen Organisation: Festschrift fu'r
Hans Wehherg zu seinem 70. Gehurtstag (Frankfurt:
Klostermann, 1956) 200—10. '
320. ‘A “Dynamic” Theory of Natural Law’, (1956) 16 Louisiana JUS
Law Review 597—620; reprinted in W] 174—97, 388.
321. ‘General International Law and the Law of the United INT
Nations’, The United Nations: Ten Years’ Legal Progress
(The Hague, 1956) 1—16.
322. ‘What Is the Reason for the Validity of Law?’, Grund- L'EG
prohlerne des internationalen Rechts: Festschrift fu'r ]ean
Spiropoulos (Bonn: Schimmelbusch 8?. Co., 1957) 257—63.
Translation of part of ‘Quel est le fondement de la validité
du droitP’, (1956) 10 Revue internationale de criminologie et
police technique 161—9.
324. Collective Security under International Law (Washington: INT
United States Government Printing Office, 1957), vi and
275 pp.
329. What is ]ustice? (Berkeley and Los Angeles: Univ. of LEG, JUS,
California Press, 1957), 397 pp. Reprint: 1960. Contains POL, soc
reprints or translations of 192, 220a, 230, 231, 237, 274, 277,
287, 300, 305, 310, 312, 320. Also two new essays: 329a and
329h.
329a. ‘Aristotle’s Doctrine of Justice’, W] 110—36, 380—4; re— “,JUS
printed in Aristotle’s Ethics: Issues and Interpretations, ed.
James J. Walsh and Henry L. Shapiro (Belmont, Calif.:
Wardsworth, 1967) 102—19.
329h. ‘Why Should the Law Be Obeyed?’, W] 257—65, LEG
452 Appendix
330. ‘The Basis of Obligation in Internacional Law’, Estudios de INT
Derecloo Internacional: Homenaje al Profesor Camilio
Barcia Trelles (Santiago de Compostela, 1958) 103—10.
331. ‘The Concept of the Legal Order’, (1982) 27 American LEG
journal of]urisprua'ence 64—84.
Translation (by Stanley L. Paulson) of ‘Der Begriff der
Rechtsordnung’, (1958) 1 Logique et analyse (n.s.) 155—67;
reprinted in WRS ii. 1395—1416.
332. Review of J. L. Brierly, The Basis of Obligation in INT
International Law and Other Papers (Oxford, 1958), (1958)
46 California Law Review 490—3.
334. ‘Problems of Collective Security’, (1958) 28 Annuaire de INT
l’Association des auditeurs et anciens auditeurs de l’Aca-
de’mie de droit international de La Haj/e 200—1 1.
336. ‘On the Basic Norm’, (1959) 47 California Law Review LEG
107—10; reprinted in (1959) 64.6 Case and Comment 22—7.
341. ‘Causality and Accounting’, ELMP 154—64. SOC
Translation (by Peter Heath) of ‘Kausalitat and Zurech—
nung’, (1960) 46 Arc/oiv fur Rec/ots— una' Sozialp/oilosop/oie
321—33.
342. ‘Law and Morality’, ELMP83—94. LEG
Translation (by Peter Heath) of ‘Recht und Moral’,
Estua’ios jurz’dico-sociales: Homenaje al profesor Luis Legaz
y Lacamlara (Santiago de Compostela, 1960) i. 153—64
reprinted in WRS i. 797—810. (This article is a slightly
different version of ch. 2 of Reine Rec/otslelore (1960); cf.
343).
343. Pure Theory of Law (Berkeley and Los Angeles: Univ. of LEG, JUS
California Press, 1967), x and 356 pp. Reprint: 1970.
Translation (by Max Knight) of Reine Rec/otsle/are (2nd,
completely revised and expanded edn. Vienna: Deuticke,
1960), xii and 534 pp.
344. ‘Sovereignty and International Law’, (1960) 48 Georgetown INT
Law journal 627—40.
345. ‘On the Basis of Legal Validity’, (1981) 26 American journal LEG
ofjurisprua'ence 178—89.
Translation (by Stanley L. Paulson) of ‘Vom Geltungs—
grund des Rechts’, Vol/eerrec/ot una’ rec/otlicloes Weltlaila':
Festsc/orzft fur Alfred Verdross (Vienna: Springer, 1960) 157—
66; reprinted in WRS ii. 1417—28.
346. ‘What Is the Pure Theory of Law?, (1960) 34 Tulane Law LEG
Review 269—76.
347. ‘Hersch Lauterpacht’, (1961) 10 International and Compar- MIS
ative Law Quarterly 2—3.
350. ‘Derogation’, Essays in jurisprudence in Honor of Roscoe LEG
Pound, ed. Ralph Newman (Indianapolis and New York:
Bobbs-Merrill, 1962) 339—55; reprinted in WRS ii. 1429—44
and ELMP 261—75.
 Appendix 453

355. (1) ‘The Foundation of the Theory of Natural Law’, ELMP LEG, JUS
114—53; (2) ‘Foundation of the Natural Law Doctrine’,
(1973) 2 Anglo-American Law Review 83—111.
Two translations (the first by Peter Heath, the second by
Carmen G. Mayer) of ‘Die Grundlage der Naturrecht—
slehre’, Das Naturrecht in der politischen Theorie, ed. Franz
Martin Schmolz (Vienna: Springer, 1963) 1—37 (paper),
118 ff. (discussion); reprinted in (1963) 13 Osterreichische
Zeitschrift fur offentliches Recht 1—37 and WRS i. 869—912.
356. ‘Politics, Ethics, Religion and Law’, Faktoren derpolitischen POL
Entscheidung: Festgahe fu'r Ernst Fraenkel zum 65. Gehurts—
tag (Berlin: W. de Gruyter, 1963) 3—10.
358. (1) ‘The Constitutional Function’, 1980 juridical Review LEG
214—24; (2) ‘The Function of a Constitution’, Essays on
Kelsen, ed. Richard Tur and William Twining (Oxford:
Clarendon, 1986) 109—19.
Two translations (both by Iain Stewart) of ‘Die Funktion
der Verfassung’, (1964) 11 Forum 583—6; reprinted in WRS
ii. 1971—9. An earlier version appeared in Verhandlungen
des Zweiten Osterreichischen juristentages Wien I 964
(Vienna: Manz) ii. 7.
360. ‘Encounters and Problems’, Yearhook of the Summer School MIS
of the University of Vienna 1965 (Freistadt, Upper Austria,
1965)65—8.
363. ‘International Law and Diplomacy’, Die modernen Wissen- INT
schaften und die Aufgahen der Diplomatie, ed. K. Braunias
and Peter Meraviglia (Graz: Styria, 1965) 189—202.
364. ‘Law and Logic’, Philosophy and Christianity (Amsterdam: LEG
North Holland, 1965) 231-6.
367. ‘Professor Stone and the Pure Theory of Law’, (1965) 17 LEG
Stanford Law Review 1128—57.
368. ‘Law and Logic’, ELMP 228—53. LEG
Translation (by Peter Heath) of ‘Recht und Logik’, (1965)
12 Forum 421—5, 495—500, 579; reprinted in WRS 1469—500.
370. ‘On the Concept of Norm’, ELMP 216—27. LEG
Translation (by Peter Heath) of ‘Zum Begriff der Norm’,
Festschrift fur Hans Carl Nipperdey (Munich and Berlin: C.
B. Beck, 1965) i. 57—70; reprinted in WRS 1455—68. (The
article is an early version of ch. 1 of Allgemeine Theorie der
Normen, cf. 385 below.)
371. ‘Norm and Value’, (1966) 54 California Law Review 1624— LEG
9; reprinted in ELMP 276—82. (This article is identical with
ch. 4e of The Pure Theory ofLaw (1967), cf. 343 above.)
372. ‘On the Pure Theory of Law’, (1966) 1 Israel Law Review LEG
_1—7.
373. Principles of International Law (2nd edn., revised and ed. INT
Robert W. Tucker, New York: Holt Rinehart, 1966), xviii
and 602 pp. Cf. 302 above.
454 Appendix
374. ‘The Pure Theory of Law’, The Nature of Law: Readings in LEG
Legal Philosophy, ed. M. P. Golding (New York: Random
fiouse,1966)108—34.
378. ‘Law and Logic Again’, ELMP 254—6. LEG
Translation (by Peter Heath) of ‘Nochmals: Recht und
Logik: Zur Frage der Anwendbarkeit logischer Prinzipien
auf Rechtsnormen’ (1967) 14 Neaes Forum 39—40.
381. ‘On the Practical Syllogism’, ELMP 257—60. LEG
Translation (by Peter Heath) of ‘Zur Frage des prakti—
schen Syllogismus’ (1968) 15 Neaes Forum 333—4.
382. ‘The Essence of International Law’, translated by Max INT
Knight, in The Relevance of International Law: Essays in
Honor of Leo Gross, ed. Karl W. Deutsch and Stanley
Hoffman (Cambridge, Mass.: Schenkman Publishing Co.,
1968)85—92.
Essays in Legal and Moral Philosophy (Dordrecht and LEG, JUS,
Boston: Reidel, 1973), xxviii and 300 pp. Contains transla— POL, soc
tions or reprints of 74, 132, 195, 220, 341, 342, 350, 355, 368,
370, 371, 378, 381.
385. General Theory ofNorms (Oxford: CUP, 1990). LEG
Translation (by Michael Hartney) of Allgemeine Theorie
der Normen, ed. from Kelsen’s manuscript by Kurt
Ringhofer and Robert Walter (Vienna: Manz, 1979), 362 pp.
 Index ofAutbors
References are not to pages, but to chapters (and sections) and to endnotes. Numbers in bold
refer to chapters; numbers in roman to endnotes.

Adickes, E. 18 Cohen, M. R. 58.xix, 45, 94, 96, 100, 157—8,

Adler, M. 171 165, 170—1
Amira, K. von 22 Cook, W. W. 135,165
Amos, M. S. 129 Cossio, C. 30, 133
Ando, T. 60, 164
Anscombe, G. E. M. 62 Demosthenes 22
Aquinas, Thomas 17.ii—iv, 61 Dernburg, H. 85
Aristotle 17.ii, iv, 18, 22, 59, 60, 64, 164 Dewey,J. 58.xv,173
Ascarelli, T. 58.xix Dixon, 0. 152
Ashby, W. 16 Drews, A. 2, 29.ii, 148
Auer, A. 102 Du Pasquier, C. 165
Austin,J. L. 79 Dubislav, W. 1.vi, 54—5, 58.xvi, 141., 161
Ayer, A. J. 117,121,138 Ducasse, C]. 107
Durkheim, E. 52
Baier, K. 46, 90
Ehrlich, E. 4, 125
Bauch, B. 116
Eisele, F. 82
Baylis, C. A. 142
Eisler, R. 1.iii, 16
Beccaria, C. 125
Engisch, K. 138, 177—8
Becker, 0. 75
Erdmann, B. 27, 66, 136, 178
Becker, W. G. 49, 106
Esser,J. 28, 80
Bentham, J. 17.iv
Ewing, A. C. 122
Bergmann, J. 136
Berriat Saint-Prix, F. 134
Fichte,J. G. 64
Binder, J. 152
Foriers, P. 165
Bingham, J. 98
Bobbio, N. 179
Frank, J. 135,171
Frege, G. 33
Bochenski, I. M. 141
Freund, P. 7
Bohnert, H. G. 139
Frey, G. 56, 57.Viii, 58.xvi, 182
Bolzano, B. 25.ii, 44.iii, 47, 49
Freytag Loringhoff, B. Baron von 135
Bon, F. 11.1,19, 87, 95,119—120
Boonin, L. 163
Garcia Maynez, E. 25.v—vi, 77, 95, 100, 147
Brandis, C. A. 59
Geach, P. T. 25.vi, 120
Brusiin, O. 163
Gehlen, A. 49
Briitt, L. 165
Gilmore, G. 131
Biichmann, G. 21
Giuliani, A. 170
Busebaum, H. 21
Goethe, J. W. von 17.ii, 28, 89
Goldschmidt, W. 27, 89
Calogero, G. 173 Gray,J. C. 43,170
Cardozo, B. N. 145, 165 Gregorowicz,J. 185
Carnap, R. 50, 61.i, 121, 132 Grotius, H. 28
Carritt, E. F. 5, 153 Guest, A. G. 76, 87, 134, 145,165
Castafieda, H. N. 25.vi, 75
Castberg, F. 58.10: Hagerstrom, A. 44, 50, 86, 163
Cathrein, V. 1.ix Hall, E. W. 16.1—11, 38.11, 54, 72,138,140,175
Cicero 27.ix Hallemans, W. 166
Cohen, F. S. 17.vii Hare, R. M. 38.11, 15, 41, 48, 70, 95,120,132,
Cohen, H. 41 138, 151, 161
456 Index of Authors

Heidegger, M. 102 Meynial, E. 58.xix, 159

Heller, T. 138, 177,180—1,183 Miedzienagora, J. 128
Heusler, A. 165, 167 Mill, J. S. 50, 58.Vii, 173
Hewitt, A. 127 Moor,J. 8, 82
Hobbes, T. 21 Moore, G. E. 122
Hofler, A. 20, 136, 148, 172 Moritz, M. 21, 40, 3, 9,10,17, 24, 42, 47, 49,
Hofstadter, A. 55 51, 87, 93, 95,138,162,176
Holmes, 0. W. 94,128, 152,173 Moser, 5. 40,138
Honecker, M. 137
Hume, D. 20, 3, 65—6, 69 Nagel, E. 100
Husserl, E. 44.ii, 45.1, iii, 52, 57.1, 6, 49, 96, Northrop, F. S. C. 4,130
106, 111, 114
Ogden, C. K. 132
Ihering, R. von 159 Olbrechts-Tyteca, L. 3, 18, 31, 84, 123, 148,
158, 171
Jager, W. 59 Oliphant, H. 127
Jensen, 0. C. 165 Olivecrona, K. 163
Joel, K. 17.i, 57
Jorgensen,J. 51—2, 54—5, 117, 138, 161—2 Parmenides 57
Juarez Paz, R. 47 Pascal, B. 21
Paton, G. W. 152
Kalinowski, G. 61, 155 Peirce, C. S. 94
Kant, I. 1.ix, 3, 4.i, 18—20, 45.11, 7, 19, 22, 60, Perelman, C. 61, 3,18, 31, 84,123,148,158,
63—9, 115, 119 165—6, 171,185
Kaufmann, A. 165 Pétrement, S. 17.i
Kaufmann-Buhler, W. 146 Pfander, A. 14, 100
Keyser, C. J. 29, 43 Philipps, L. 110
Klug, U. 61.1-ii,108,141,143,165—6 Piaget, J. 50
Kocourek, A. 58.xix Plato 17.i, iV-V, 18, 22, 58.111, 59.1.13, 7, 55—8,
Konstam, E. M. 152 172
Kotarbinski, T. 185 Poincaré, H. 21, 3
Kraft, J. 66 Popper, K. 50, 62
Kulpe, O. 1.Vi Pound, R. 80
Prichard, H. A. 174
Lalande, A. 66, 160 Prior, A. N. 17,165
Lange, A. 160 Pythagoreans 17.i
Levi, E. H. 131
Lewis C. I. 107 Radbruch, G. 139
Lloyd, D. 131 Rand, R. 57.Vii, 113
Loevinger, L. 124, 128 Regelsberger, F. 27.vi, viii, 29.iv
Lotze, H. 167 Reichenbach, H. 59.i.A
Lukasiewicz, J. 142 Reinhold, E. 7
Lundstedt, E. V. 163 Richards, 1. A. 132
Rickert, H. 1, 118
Mach, E. 61.i, 184 Ripert, G. 81
Maier, H. 104 Rocco, A. 58.xix
Maitland, F. W. 124, 152 Rooney, M. T. 135, 173
Mally, E. 39, 44.ii, 8, 28 Ross, A. 55, 66, 168
Marcic, R. 102 Ross, D. 16, 56
Marsh, N. 11 Rumpf, M. 178
Mauthner, F. 17.Vi Russell, B. 19, 42
Mayo, B. 25.iv, 13, 73—4 Ryle, G. 32, 34, 36
McKinsey,J. C. 55
Meinong, A. 35, 37 Scheler, M. 45.iii, 53, 64, 69, 95
Menne, A. 141 SChlick, M. 17.V, 7, 25
Merkel, A. 30 Scholz, H. 142
Merkl, A. 57.iv, 82 Schreiber, R. 83, 88,110,138, 141, 166,184
Messer, A. 19, 113 Sidgwick, H. 2
 Index of Authors 457
Sigwart, C. 9.ii, 23, 38.iii, 50, 53, 58.vii, 16, Vaihinger, H. 58.ix, 59.i.D
17, 20, 23, 49, 68, 93,100,104,109,111, Verdross, A. 81
113,136,144,150—1,178 Vonlanthen, A. 2
Simitis, S. 134
Simmel, G. 1.iV, 2
Wallis-Walfiscz, M. 12, 123
Socrates 55, 58, 172
Walter, J. 60
Séhngen, G. 1.ix, 112
Wedberg, A. 25.vi, 105
Stammler, R. 156
Wellman, C. 19, 91, 97,138
Stebbing, S. 58.v, 132 Windelband, W. 14, 63
Stevenson, C. L. 99, 122, 182
Wittgenstein, L. 36, 39, 62
Stone,]. 152,165
Wolf, H. 56
Storer, T. 92
Wright of Durley, Lord 131
Strawson, P. W. 91
Wright, G. H. von 25.vi, 71, 75, 78, 100
Wroblewski,]. 1,127—8
Tammelo, I. 25.vi, 57.Vii, 61.iii, 11, 26, 152
Wundt, W. 85
Teichmfiller, G. 60, 164
Wurzel, K. G. 4, 169
Toulmin, S. E. 65, 99,103, 149, 170
Trendelenburg, A. 152, 159
Turnbull, R. G. 101,161 Yntema, H. E. 96, 162

Uberweg, F. 113,136,165 Zeller, E. 59

Ulpian 134 Ziembinski, Z. 167
Utz,A.F. 61 Zitelmann, E. 95
 Index os/tbjects
References are not to pages, but to chapters (and sections) and to endnotes. Numbers in bold
refer to chapters; numbers in roman to endnotes.

abrogatio 27. viii—ix Basic Norm 59. i. B—F, ii. A, 10, 45, 174—5
act of thought, see mental acts; thought Bedeatang (Frege) 33
act of will 9. iv, 6 Begrssjarispmdenz 159
cannot concern facts as yet unknown 58. behaviour 23, 25. i, 4
xii, xiv, xxii agreement with a norm 2, 16, 30, 32, 48, 141
of one person cannot be implicit in act of evaluation of12, 14, 19, 26. v, 30, 100
will of another 161 material and personal elements 10
subjective and objective meaning 8. v, 26. negative and positive regulation by law 31
ii, 49, 59. i. A—D, 28, 174 subject and object of, 22
see also mental acts; will Briand-Kellogg pact 4
addressee:
of a general legal norm 14 categorical norm or statement,
of a norm 1. xi, 8. vii, 22 see unconditional norm, unconditional
administrative agencies 14, 28 statement
agreement: causality 2, 7, 128
of behaviour with a norm 2, 16, 30, 32, 48, civil code
141 France (art. 4) 84, 129, 158
of one norm with another 28; see also Switzerland (art. 1) 129
correspondence of one norm to another closure of legal order 31, 84, 129
of a statement with its object 146; see also coercion 14, 32
truth collective will 38. iii
ambiguous norm 50, 57. x, 1, 131, 145 command 13, 49, 74
amendment of a statute 27. ix addressed to oneself 11
analogical inference 61. i, 184 assent to a 11,161
appeal courts 14, 58. xv contrasted with advice 19
application: as function of a norm 1. iii, 25. i—iii
of law 31, 58. ii genuine and inauthentic 17
of legal norms 14, 15 interpretation of utterance as a 10, 39
of norms 1. vi, 12, 13, 26. v, 27. ii, 29. i, 34. as meaning of act of will 9. ii, iv
11 and norm contrasted 1. x, 8. iv
approval (and disapproval) of behaviour 8. and permission 25. v, 26. v, 77, 143
Vi, 11. iv, 13, 14, 48,122 and prohibition 23, 25. i, 73, 75, 77, 143
commanded by moral order 12, 32, 58. common good 11
xiii community instituted by a moral order 32
arbitrary character of norms 1. viii concepts and norms 17. V, 7, 8
argument a majore ad minus 61. ii, 185 conceptual economy 28
argument a simile 61. i condition and consequence, connection
assent: between 6. i—ii, 7. i—ii, 59. ii, 60, 25, 183
to a command 11, 41,161 condition for a legal consequence, utterance
to a statement 11. ii. as 79
authorities: condition in a legal norm 24, 3O
legal 19, 59. i. E, 135 conditional norm 3, 5, 12, 13, 57. x, 58. x, 19,
moral 12,17. vi,19, 38. v, 59. i. E, 46 23, 161
autonomy and heteronomy: structure of 5, 24, 60, 24, 138, 183
of law 14, 19 conflict of duties 29. ii, 149, 153, 154
of morality 8. ix, 11. i, 12, 14, 18, 19, 47, conflict of norms 25. v, 27. iii—iv, vii—viii, 29,
58. xiii, 67 52, 57. iv, vi—vii, x—xii, xiv, 71, 83, 110,
of norms 119 141,147—8,151,155,179, 185
460 Index of Subjects
conflict of norms, (cont)
between a norm and an incompatible
cuStomary norm 27. v
between a norm and the norm repealing
it 27. iii, 57. iv, vi, xiii
between different levels of norms 29. iii
between different normative orders 29. iii,
31, 57. V, x,147,154
within a statute 29. iii—iv, 57. x, 150
conscience 19
consequence, see condition and consequence
consutution:
of a legal system 26. iv, 59. i. B, E, ii. A
relativized concept of 59. i. E
contradiction 29. ii, 57. iv, vi, viii, xii, 148,
154, 155
principle of 29. ii, 45. ii—iii, 52, 57. vii, xi,
83, 136, 151
contrareity 57. xii
correlation of a statement with a norm 56, 58.
xvi, 138, 140
correspondence 56
of an act to a meaning 29
of one norm to another 12, 13, 58. Viii, 59.
i. A, E, ii, 146, 156; see also agreement of
one norm with anOther
courts, appeal 14, 58. xv
creation of norms, metaphOrical expression 1.
iv, 28, 1, 27
custom 1. iv, 27. V, 28, 4, 45, 46, 170
declaratory judgment 3O
delegation 31
deliCt 27. vii, 3O
dependent norms 27.i
derogating norm, formulation of 27. iv
derogation 1. v, 25. ii, iv, 27,‘ 29. iii—iv, 57.
xiii
description and prescription 25. i
descriptive element allegedly contained in a
norm 51, 52, 53,138
desuetude 34. ii
determinism 34. ii
discretion ofjudge 28, 50, 58. xv, 127, 134,
163
in Plato’s ideal state 58.iii, 59.i.E
as result of conflict of norm 29. iii—iv
dismissal of a case 14, 31, 34. iii, 58. iii
doctrine 28
duties, conflict of 29. ii, 149, 153, 154
duty 16. ii, 19, 23, 32, 35, 5,15, 51, 85, 86, 87,
92, 153
effectiveness of a norm 34
loss of 1. vii, 27. i, v, 34. ii, 58. xv
possibility of 5, 34.ii
and validity 1. vi, 17. v, 27. i, v, 34. ii, 46,
27, 88, 89, 98
effectiveness of a normative order 32, 34. i—ii
egological theory of law 133
empowering— 12, 25. ii, 26, 59. i. A-B, E, ii
can be reduced to a command 59. ii. A
can imply a command 26. iv
and permission 25. vi, 77
as a set of alternatives 58. xxi, 128
empowering norm is a blank norm 59. ii. A
ends:
and means 2—4, 24, 6, 14,16—21, 48
and norms 2, 17
entelechy (Aristotle) 17. ii
entitlement 33
ethical positivism, see positivism
ethics 38. V, 40, 5, 16, 66, 87, 97, 99, 103, 122;
see also normative science
evaluation of behaviour:
as good or bad 12, 19, 26. V, 30, 100
as legal or illegal 14, 26. v
evaluation of law 57. v, 4, 30, 52
evaluation of persons 31
excluded middle, principle of 151
execution-organ 14, 26. iv
power to perform coercive acts 26. iv
existence 8, 27, 107
of a norm 58. xi; see also validity of a norm
factors influencing creation of law 28, 43, 8O
facts and logic 4. i, 46, 50, 58. ix
federal State 37
fictions 59. i. D
finding of fact 30, 34. iii, 58. xviii, 163, 167
free will 30, 63
freedom (normative) 25. iv, 31, 33
freedom of contract, principle of 28
freie Recktsfindung 125
function of a statement and a norm 41
functions of norms 1. i, 25, 30, 31, 75—7
gaps in the law 31, 58. iii, 84, 125, 129, 155,
157—8,165, 185
general legal norm 14, 173
correCt formulation of 14, 30, 34. iii, 58.
xviii
general norms 1. x, 5,12, 13, 57. x, 9, 10, 23,
91
different degrees of generality 58. xxii, 59.
11
general principles of law 28, 81
general will 17. vi
God 7. ii, 7, 59, 112
as source of norms 1. ix, 17. ii—iii, 18, 46,
61, 102
good (and bad) 49, 122
properties of behaviour 22, 41, 52, 57. ix,
70, 103, 123
greatest happiness principle 17. iv
grounding the validity of one norm on
another 58. xx, 59. i. A, D—E, ii, 161,
162,171—3,176,178—9,182,185
guilt 31
 Index of Subjects
heteronomy, see autonomy and heteronomy
hierarchical structure of normative order 59.
i. F
higher and lower norms 59. i. E, ii
hypothetical norm or statement see
conditional norm, conditional statement
ideals 27
ideas (Platonic) 17. i, 7, 55-6
ideell exiStence of a norm 8. vi, 16. iii, 38. v,
‘ 41, 44. ii, 8, 27, 52, 102, 106
ignorance of the law 14—15, 44
imperative sentences 38. i—ii, 13, 19, 49
imperatives:
categorical and hypothetical (Kant) 3, 22,
48
justification of 182
and logic 132
imputation 7, 49
individual freedom, principle of 28
individual legal norm 14
individual norms 1. x, 5, 12—13, 9, 10, 23
intention of speaker 9. ii, 42—3
and meaning of a sentence 9. iv, 10. iv
interests and rights 33
International Court of JuStice 28, 11, 81
international law 28, 11
interpretation
of behaviour as a command or observance
of a command 10, 39
normative interpretation of events 36, 59. i.
C—D
of norms 29. iv, 57. xiv, 1, 127—8, 170
Is and Ought 1. vii, 2, 4. i, 7. iii, 8. i, 16—20,
34. ii, 51, 3, 27—9, 45, 51, 53, 57, 64,102
see also mode and substrate
Is of Ought 38. V, 41
is—rules and ought—rules 1. x, 2, 40, 4
judge:
discretion of 28, 29. iii—iv, 50, 58. iii, xv,
59.1. E,127,134,163
duty to decide cases 26. iii, 158
duty to make true findings of fact 30
function of 30, 58. xix, 29, 43, 47, 168
power to create new law 31, 58. iii, iv, xxi,
61.1,145,158,165
judge-made law, theory that all law is 58. iii,
170
judicial decision 28, 30, 94—5, 166
is an act ofwill163, 165,169,171,173
not deduced from general norm 83, 125,
128,134,156,165—6
jurisprudence constante 28
juristic logic 61
just war principle 4
justice 28, 32, 58. iii, 26, 30
ofjudicial decisions 133, 162, 165
and validity of law 16. i, 28, 112
justification of an imperative 182
461
law:
application of 31
autonomy and heteronomy of 14, 19
commands by decreeing sanctions 6. ii, 19
conflict with morality 29. iii, 31, 57. v, x,
147, 154
effect of development of science on 4
evaluation by morality 57. V, 4
ignorance of the 14—15, 44
influenced by morality 28, 126
and logic 124, 134, 152, 159
and morality contrasted 14, 25. iii, 32—3, 35
not about behaviour of officials 29, 94
Ought and not Is 29, 45, 102
regulates its own creation and application
26. i
regulates only behaviour which affects
others 4
sanctions of 25. iii, 32
sociology of 45
law—applying organ
duty to apply sanctions 14 .
power to apply sanctions 14, 25. iii
laws:
natural 6. iii, 25
social (legal and moral) 6. iii, 7. i, 25
legal certainty, political postulate of 58. iv
legal norms 15, 50, 76, 95, 102
application of 14—15
general and individual 14
primary and secondary 15, 32, 34. i, iii, 35
legal order 31—2, 57. v;
closure of 31, 84, 129
see also normative order
legal positivism, see positivism
legal principles 28, 80—1
legal science 28, 30, 38. iv—v, 30, 66, 96, 98,
133, 135
see also normative science
legal thinking 58. xx, 163, 173
legislators, will of 38
[ex posterior derogat priori 27. iii, Vii—ix, 29.
iv, 57. iv, 82—3
linguistic expression of a norm 1. iii, 8. vii
living law 4
logic:
applicable in some ways to norms 50, 59.
ii. B, 60
cannot determine material truth 45. ii, 58. v
concerned with meanings and not acts 4. i,
45. iii, 58. vi—vii, 142, 160—1
and facts 4. i, 46, 50, 58. ix
as generalized jurisprudence 170
and imperatives 132
and law 124, 134, 152,159
mathematical 50
and modally indifferent substrate 16. ii
non—rigorous 185
normative character of 1. ii, 45. iii, 113—15
and norms 50, 54, 57. i, iii, 136—7, 155
462 Index of Subjects
logic, (cont)
and norms understood as non-positive
meanings 58. xxiii
and object of science 38. v, 50
of probability 59. i. B
and science 38. v, 50, 58. i
and statements 50, 57. i, 136, 142
three-valued 141 , 142
logical positivism, see positivism
loss of validity of a norm 46
due to loss of effectiveness 1. vii, 27. i, v,
34. ii, 58. xv
due to loss of object 27. ii, 34. ii, 12
in virtue of content of a norm 27. i
manners [Sitte], norms of 28, 1, 4
material legality of judicial decisions,
principle of 28, 58. xxi
mathematical logic 50
meaning of a mental act 8. ii, 9. ii, 41
can be expressed non-linguistically 38. i
is expressed in sentences 9. ii, 10. iv, 38. i,
iv, 53
meaning of a norm 1
see also signification of a norm
meaning of a sentence 9. iv, 10. iii
and grammatical form 27. iv, 38. i, iii, 93,
136
and intention of speaker 9. iv, 10. iv
meaning of an act 2, 8. i, 17. Vii, 1, 27, 29, 45,
49, 52, 95
means and ends, see ends and means
mediation 13O
mental acts 41
conflicting acts within one person 43, 45.
iii, 57. vii, 150
content of 9. ii, 42
meaning of, see meaning of a mental act
see also act of will
merely thought norms 1. ix, 16. i, 58. xi, xxiii
modally indifferent substrate:
and logic 16. ii
see also mode and substrate
mode and substrate 16, 42, 48, 51, 54, 57. ii,
17, 27, 51, 53—4, 138
moral norms 39, 40, 87, 91
see also morality
morality 1. ii, 21, 28, 38. V, 16, 22, 46, 65, 87,
90
autonomy and heteronomy of 8. ix, 11. i,
12, 14, 18—19, 47, 58. xiii, 67
conflict with law 29. iii, 31, 57. v, x, 147,
154
evaluation of law by 57. v
influence on law 28, 126
and law contrasted 14, 25. iii, 32—3, 35
sanctions of 25. iii, 32
must and Ought 2—3, 40, 15, 19
Natural Law 1. ix, 17. ii—iii, 28, 33, 57. V, 59.
ii. A, 4, 5,11, 61, 85,102,128
natural science 6. i, 7. i, iii, 25
Nazi regime 36
necessity
causal and normative 2—3, 4. i, 6. i—ii, 16, 25
logical 2, 4.i
teleological 2, 16
negation 23
Neptune case 28
‘new’ case 157, 165
non-Euclidean geometry 135, 173
norm:
addressed to oneself 8. ix
addressee of 1. xi, 8. vii, 22
agreement of behaviour with 2, 16, 30, 32,
48, 141
agreement with another norm 28; see also
norm, correspondence to another norm
alleged correlation of a statement with
a 56, 58. xvi, 138, 140
alleged transformation into a statement 54,
58. xvi,101,108, 139,161
ambiguous 50, 57. x, 1, 131, 145
can regulate conditions for its own
validity 27. vi
cannot be derived from another norm 58,‘
161—2, 175,179
categorical, see norm, unconditional
and command contrasted 1. x, 8. iv
conditional 3, 5, 12—13, 24, 57. x, 58. x, 60,
19, 23,138,161,183
content of 16. i, 22, 24, 36—7
content regulated by a higher norm 36
correSpondence to another norm 12, 13,
58. viii, 59. i. A, E, ii, 146, 156; see also
norm, agreement with another norm
dependent 27. i
descriptive element allegedly contained in
a 51—3, 138
does not contain a statement 49, 183
effectiveness of, see effectiveness of a norm
fictitious 59. i. D
general and individual 1. x, 5, 12—13, 57. x,
9—10,12, 23, 91
hypothetical, see norm, conditional
individual, see norm, general and individual
linguistic expression of 1. iii, 8. Vii
meaning of 1; see also norm, signification
of
meaning of act of will 1. iii, 8. i, 1, 8, 16, 22,
27, 38
non-verifiability of 46
and normal 1. Vii, x, 3
not a property 44. ii, 58. viii, 103, 108, 141
object of 8. viii, 22—4, 37
presupposed in a person’s thinking 59. i.
 Index of Subjects
quoting a 38. v, 49
recognition of 11—14, 19, 57. x, 58. xiii, xv,
68
repeal of a, see derogation
signification of 50, 57. x, 1, 128, 131, 145
statement about, see statement about a
norm
and statement 8. ii, 9. ii, iv, 17. v, vii, 41
structure of conditional 5, 24, 60, 24, 138,
183
unconditional 5, 12—13, 57. x, 58. x, 19, 23,
161
validity of, see validity of a norm
see also norms
norm—calculus, propositional calculus
reinterpreted as 141
norm-generating complex
[Erzeagangszasammen/aang] 59. i. E—F
norm-positing act, forms of 38. i
normal and norm 1. vii, x, 3
normative order 19, 29. iii, 32, 34. i—ii, 57. v,
59. i. F
normative science 1. ii, 6, 7. i, iii, 17. v, 38. iii,
V, 6, 8, 25, 66
and logic 50
see also ethics; legal science
nOrmative syllogism 12, 58. viii—x, xii, 47,
160—1,163—5,167,171
norms understood as non-positive meanings,
logic and 58. xxiii
norms:
application of 1. vi, 12—13, 26. v, 27. ii, 29.
i, 34. ii
arbitrary character 1. viii
are mental (geistig) realities 106
autonomy and heteronomy of 119
and concepts 17. v, 7—8
conflict of, see conflicts of norms
and ends 2, 17
functions 1. i, 25, 30—1, 75—7
higher and lower 59. i. E, ii
ia'eell existence of 8. vi, 16. iii, 38. v, 41, 44.
ii, 8, 27, 52,102,106
interpretation of 29. iv, 1, 127—8, 170
legd.32,34.Lifi,35,50,76,95
and logic 50, 54, 57. i, iii, 136—7, 155
of logic 1. ii, 45. iii
of manners [Sitte] 28, 1, 4
merely thought norms 1. ix, 16. i, 58. xi,
xxiii
not analogous to scientific
assumptions 135
not hypotheses 173
not immanent in reality 1. ix, 17. i—iii, 4—5,
102
not produced by thought 1. ix, 19, 47, 66,
119
not statements 100, 136
463
observance of, see observance and violation
of norms
of omission 5
positivity of 1. viii, 34. iii, 58. xxiii
purpose of positing norms 2, 16. i, 24, 43
regulate only behaviour which affects
other 23, 33
retroactivity of 8. vi, 36, 58. xi
sphere of validity of 8. vi, 27. ii, vi, viii,
36—7
subject in some ways to logic 50, 59. ii. B,
60
violation of, see observance and violation of
norms
with identical contents 27. iii
observance and violation of norms 1. vi, 25.
iv—v, 26. v, 27. ii, 29. i, 32, 34. ii, 57. ix,
4O
genuine and inauthentic 4O
mediate and immediate 12—14, 57. x
subjective and objective 10. i, iv,~15, 40
observance of a command:
interpretation of behaviour as 10, 39
observance of a norm 42
motives for 34. i, 182
and truth of a statement 55, 57. iii, viii—xi,
58. xvi
omission 23, 25. i, 23, 71
norms of 5
C)ught1.iv,1,2,8,16,19,174
denial of 17. iv—vii, 62
descriptive and prescriptive 8
ideal and imperative 95
meaning of an act of will 9. i, 38. iii
and must 2—3, 6. i, 40,15,19
not a property 44. ii, 58. viii, 103, 108, 141
refers to all normative functions 1. v, 25. ii
subjective and objective meaning, see also
act of will, subjective and objective
meaning
see also Is and Ought
ought—rules, see is—rules and ought—rules
permission 25. ii, 75
and command or prohibition 25. v-vi, 26.
V, 77, 78, 143
and empowering 25. vi, 77_
negative and positive 25. iv—vi, 31, 33, 77
politics, legal 28, 31, 50, 58. iv, xiv, 11, 21,
43,96,127,129,134,145,158,162,165,
173
positivism:
ethical 1. viii—ix
legal 1. viii—ix, 28, 31, 58.iv, 4, 128
logical 17. v
positivity of norms 1. viii, 34. iii, 58. xxiii
power (normative) 26. i, 33
464 Index of Subjects
and duty to make use of it 26. iii—iv effect on law of development of 4
of execution-organ to perform coercive legal, see legal science
acts 26. iv and logic 38. v, 50, 58. i
of judge to create new law 31, 58. iii—iv, natural 6. i, 7. i, iii, 25
xxi, 61.i, 145, 158,165 normative, see normative science
of law-applying organ to apply sentence:
sanctions 14, 25. iii can have different meanings 10. iii, 38. ii
practical reason 1. ix, 4. i, 17. ii—iii, 18—20, 45. cannot be both statement and norm 51—2,
iii, 47, 60—1, 63—9, 115—16, 119 122
practice of courts, as source of norms 28 expresses meaning of a mental act 9. ii, 10.
presumptions in law 167 iv, 38. iv, 53
principes génémux du droit (28, 81 imperative 38. i—ii, 13, 19, 49
principles of logic, not partgof the law 83, 110 meaning and grammatical form 27. iv, 38.
probability, logic of 59. i. B i, iii, 93,136
prohibition: meaning of a 9. iv, 10. iii—iv, 38. i
and command 23, 25. i, 73, 75, 77, 143 separation of powers 28, 58. xix
observance of a 5, 23 signification:
and permission 25. v—vi, 26. v, 77—8, 143 descriptive and prescriptive 30, 38. ii—v, 41,
proposition of law 6. ii—iii, 30, 38. v, 49, 95, 46—7, 49, 8
156 ofanorm 50, 57. x,1,128,131,145
propositional calculus, reinterpreted as norm- of a sentence 41, 43
calculus 141 of words 9. iii—iv, 33—7
purpose of positing norms 2, 16. i, 24, 43, 17 Simz (Frege) 33
sociology of law 45
quoting a norm 38. v, 49 sollen 38. v, 6
ambiguity of 38. ii—iii, 41, 95
sollen-sentence 16. i, 30, 38, 41, 47, 49, 57. i,
reality and value 16. iii, 58 58. xx, xxiii, 6, 13, 49, 92, 119, 143
reason for validity of a norm 59. i. B—C sphere of Validity of norms 8. vi, 27. ii, vi,
reason: Viii, 36—7
in Kant 18, 69 spirit of the law 61. i
normative function of 160 State 36—7
recognition of a norm 11—14, 19, 57. x, 58. will of the 38
xiii, xv, 68 statement:
recognition theory 13, 58. xv, 153 about a norm 30, 38. ii—v, 39—41, 46—9, 57.
regulation of behaviour by law, negative and xii, 49, 95, 101, 105
positive 31 agreement with its object 146
repeal of a norm, see derogation alleged correlation with a norm 56, 58. xvi,
partial repeal 27. viii 138, 140
repealed norm, revival of 27. ii, ix alleged transformation of a norm into a 54,
res judicata 14, 27. vii, 28, 30—1, 58. xviii, xxi, 58. xvi, 101,108,139,161
4, 83,128,165—7 assent to a 11. ii
responsibility 31 categorical, see statement, conditional and
retaliation, principle of 32 unconditional
retribution 6. iii, 22, 32, 59. ii. B, 26 conditional and unconditional 57. x, 161
retroactivity of norms 8. vi, 36, 58. xi function of 41
revival of a repealed norm 27. ii, ix hypothetical see statement, conditional and
revolution 36 unconditional
rewards conferred by a legal order 32 and norm 8. ii, 9. ii, iv, 17. v, vii, 41
rights 33, 77, 85—7 not contained in a norm 49, 183
rule of law (as political ideal) 11 truth of, see truth of a statement
validity of, see validity of a norm and
Sac/0126740412: 177 validity of a statement
sanctions 14, 32, 31, 108 verifiability of 46
difference in law and morality 6. ii, 25. iii, statements:
32 and logic so, 57. i, 136, 142
guarantee effectiveness of a normative of ethics 122
order 32, 34.i of legal science 38. iv, 98; see also
satisfaction-value 55 statement about a norm; proposition of
science 21, 22, 45 law
 Index of Subjects
structure of conditional norm 5, 24, 60, 24,
138, 183
substrate, modally indifferent, see modally
indifferent substrate
subsumption 59. ii, 156, 165, 178, 180—1
syllogism 58. vii, 173
see also normative syllogism; theoretical
syllogism
Tatbestand 177
technology 2, 19, 114, 119
theoretical syllogism 12, 58. v, viii, xii, 160—
1, 167, 171
involving statements about norms 59. i.
A—B
things exist only in consciousness 30, 33
thought:
cannot produce act of will 65
cannot produce norms 1. ix, 19, 47, 119
different function from will 41, 51, 57. ii,
58. Xi, 66, 112
relation to will 9. ii, 42, 51, 57. ii, 58. xi,
104, 144
transformation of a norm into a statement 54,
58. xvi,101,108, 139,161
transformation of moral principles into
law 28
truth of a statement:
alleged analogy with justified willing 39
not conditional on act of stating 44. i, 58.
Vi, 111
not relative to time 44. iii, 58. vii, 109, 142
and observance of a norm 55, 57. iii,
viii-xi, 58. xvi
and validity of a norm 44. i, 57. iii, vii, x,
58. ix, xii, xiv, xvii, 141, 151, 170
truth:
agreement of a statement with its object 45.
i, 57. ix, 116
material and formal—logical 45. ii
property of a statement 44. ii, 57. ix
and truthfulness 21, 45. iii, 116
and value 21, 45. i, iii, 116
truth-value 45. iii, 55
truthfulness 21, 45. iii, 116
unconditional norm 5, 12—13, 57. x, 58. x, 19,
23, 161
unconstitutionality 29. iii
understanding meaning of a sentence 9. iv, 10.
iii—iv
utterance, as condition for a legal
consequence 79
validity of a norm 8. v, 13
analogous to the existence of a fact 57. vi
cannot be derived from a statement and a
norm 12, 170
cannot be implicit in a statement and a
norm 58. ix—x
465
conditional and unconditional 13
conditional on act of will 1. vi, ix, 4. ii, 12,
44. i, 54, 58. x, xvi, xx, 6
conditional on possibility of
effectiveness 5, 34. ii
and effectiveness 1. vi, 17. v, 27. i, v, 34. ii,
46, 27, 88—9, 98
founded on validity of another norm 58.
XX, 59.1. A, D—E, ii, 161—2, 171—3, 176,
178—9, 182,-185
full 13
is always conditional 5, 23
is its existence 1. v, 8. Vi, 44. ii, 57. xiii, 8,
110
loss of, see loss of validity of a norm
mediate and immediate 13, 57. x
not a property of the norm 141 , 183
objective 13—14, 153
relative to time 44. iii
restricted by another norm 25. iv, 19
and truth of a statement 44. i, 57. iii, Vii, x,
58. ix, xii, xiv, xvii, 141, 151, 170
and validity of a statement 44. iv, 110, 141
validity of a normative order 19, 34. ii, 90,
154
validity of individual norm:
not derived from general norm 12—13, 47,
166
validity of law:
full 43
independent of morality or justice 16. i, 28,
112
value 16. iii, 17. Vii, 30,16, 54, 58,116,118,
123
objective and subjective 2, 45. i, 52, 133
theoretical and practical 45. i, iii
and truth 45. i, iii
value-judgment 16. iii, 17. vii, 30, 45. i, 46,
48, 57. ix, 6, 52, 97, 100, 114, 123, 136,
163, 173
objective and subjective 2, 16. iii, 48, 52,
121, 122
truth-conditions of 48, 52, 6, 90, 121
verifiability of statements and norms 46, 117
void acts 26. ii—iii
voluntary movement and will 9. i
weighing of considerations 57. iv, 149
will:
differen't function from feeling 32
different function from thought 41, 51, 57.
ii, 58. xi, 32, 66,112
of legislators 38
relation to thought 9. ii, 42, 51, 57. ii, 58.
xi, 104, 144
of the State 38
that someone is to act (distinguished from
will to act) 8. ix, 9. i, 11. iii, v, 19, 42
and voluntary movement 9. i
wish 8. iii, 17. vii, 6, 14, 72