The Norm
In Latin the norma is a carpenter’s set-square. And juristically the norm is also a “setting-square”. The norm, in theory at least, will “square things up”, will, by expressing a standard, a measure, allow us to “know where we stand” in relation to this or that matter of social or private behaviour. Such at any rate is the idea of the norm.
Now at this level, that is, at the level of the norm as such, it doesn’t really matter whether we are talking about moral norms or legal norms. They are all norms, and here that which is central and essential is the issue of normativity as such, not its type. In any case, though the legal norm may be distinguished as involving a specific constituency of addressees, unlike the moral norm perhaps, the central point of all laws (duty, responsibility, standards of conduct etc.) is at the heart of any morality.
Prescriptives and Descriptives
We know that norms are prescriptive. They are “oughts”. In contradistinction we get phrases and expressions which are descriptive in character, and descriptives have a referent according to which they may be measured “true or false”.
Now it is perfectly possible for conduct to “describe” the norm, that is to say, correspond with the norm or not, as the case may be; and to that extent it might be said that conduct is “true or false”, “right or wrong” - but only with respect to the norm. The norm itself, however, cannot be deduced or spoken of in this manner.
Kelsen's dramatics
No-one has pressed logic within the juristic genre so doggedly, so thoroughly, so robustly, as Kelsen. We can tell, in the posthumous General Theory of Norms, how extensively he was consulting philosophical and juristic literature right up to the end of his life. (Kelsen,H. General Theory of Norms. Tr. Michael Hartney. Clarendon, Oxford 1991. p. 234) And his acumen is awesome.
A brilliant and succinct summary of Kelsen’s “dramatic urge” ,as Francois Ewald, the French legal philosopher, has amusingly put it is given in the following example:
“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 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: the problem we are concerned with is that of the applicability of a logical principle to positive morals and legal norms. No imperative without an imperator, no norm without a norm-positing authority, that is, no norm without an act of will of which it is the meaning.” (ibid.p.234)
“No imperative without an imperator”. Or, no norm without an “addressor instance”, to use Lyotard's phrase. But who, or what, might that be? We have these concepts: an addressor, an addressee, and between and betwixt something called the norm. The norm is the meaning of an act. The act is an act of will. It is a doing of intention. How does that doing get done?
Let us leave these questions for the moment and pursue another line of attack.
Simple complexities
Kelsen complicates matters devilishly when he says: “The value-judgement is a statement which can be true or false” (p.200 ibid.) But all he means here, and all he can mean, is: “..when it is turned into a descriptive statement”, in other words, when the “value-judgement” purports to describe something else outside of itself, namely, the norm.
“If the norm ‘Human beings are never to kill other human beings’ is valid, then the value-judgement ‘Refraining from killing other human beings is always good behaviour’ is true, and the value-judgement ‘Refraining from killing other human beings is not always good behaviour’ is false.” (ibid.)
The statement which describes behaviour conforming with the norm Kelsen wants to call “true”, and the statement describing behaviour inconsistent with the norm he wants to call “false”. At the same time he upholds that the norm itself can never be true or false, for he says:
“The fundamental point is this: the fact that logical principles are applicable to value-judgements - i.e. statements which are true or false - does not entail that these principles are applicable, directly or indirectly, to the norms to which the value-judgements relate.” (ibid.p.201)
Really all Kelsen is saying here is that the value-judgement, so far as it describes the norm, can be true or false. Once what Kelsen here calls a value-judgement is given a referent, i.e. something separate from itself and against which it can measure up and refer ,the norm in other words, then clearly it is turned into a descriptive and therewith corresponds or not, as the case may be, with that norm.
Primary and Secondary Elements in the Norm
Regarding the observance or violation of legal norms, Kelsen says the distinction primary/secondary within the norm “makes no difference”, that it is “superfluous”.(pps. 56-7 ibid. General Theory). Why?
Because the primary and secondary elements are combined in the general or individual norm. So what then is this distinction primary/secondary all about?
Let us allow Wittgenstein to help us out:
“When an ethical law of the form ‘Thou shalt..’ is laid down, one’s first thought is, ‘And what if I don’t do it?’..” (Tractatus 6.422)
Indeed. And that is why Kelsen suggests the sanction as being the “primary” element in the legal norm and, in this sense generally distinct from a moral norm (though even that distinction eventually collapses).
Following Kelsen, in positive law and for the most part:
“X should not steal” is secondary.
“If X steals he is to go to prison” is primary.
Answering Wittgenstein’s question: “What if I don’t?”
And so it is with much of the positive laws we find that the sanction defines the norm. “If you don’t…you get this!” But the “soft spin” on this of course is the norm: “People should do this..” But both are clearly combined in the norm as such. Indeed this “unity” of the primary and secondary elements Kelsen suggests to be more typical of the legal as distinct from the moral norm. And that is a key significance in the distinction.
In the (cynical) stern law, the sanction is “primary”; though this combines with a “secondary” which is a statement of the norm.
Now, interestingly, Kelsen reverses this very distinction in the case of moral norms (pps.142-3. General Theory ibid.), for he says:
“If it is assumed to be essential for law (as it is with morality) 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 (i.e. of that particular command), then the former norm must be called the primary, and the latter the secondary norm - and not the other way around as I have expressed it in earlier chapters.”
So Kelsen’s distinction primary/secondary is really part of his effort to distinguish (positive) law and morality. He knows that a distinction which isn’t precise isn’t a distinction at all.
Propositional Logic
It is worth dwelling with Wittgenstein (as well as Kelsen) here. The fuller passage goes like this:
“When an ethical law of the form ‘Thou shalt…’ is laid down, one’s first thought is, ‘And what if I don’t do it?’ It is clear, however, that ethics has nothing to do with punishment and reward in the usual sense of the terms. So our question about the consequences of an action must be unimportant…There must indeed be a kind of ethical reward and ethical punishment, but they must reside in the action itself.” (ibid. prop.6.422)
In the action itself ! An entirely Kantian position. An entire acknowledgement of the ethical as “transcendental”. As he clearly states (ibid. prop. 6.421, cited also in Kelsen ibid. Note 62 at p.311):
“Ethics is transcendental”
Kelsen’s annoyance and frustration
Now not for a minute does Wittgenstein believe the ethical to be “meaningless”, as Kelsen says, that is to say, as Kelsen accuses (ibid. note 62).
Kelsen’s annoyance is with Wittgenstein’s logical closure, with his strict demonstration and strict delineation of logic’s authority.
In other words, the canons of propositional logic in Wittgenstein declare and reaffirm once more the ethical as “transcendental”. And Wittgenstein is not going to “help out” here. He’ll only clarify logical (not normative) propositions. Thus Kelsen’s annoyance.
In no way did Wittgenstein declare the ethical “meaningless”. Indeed he added to the above proposition (6.422), and in brackets:
“(And it is also clear that the (ethical) reward must be something pleasant and the punishment something unpleasant)”
Not at all “meaningless”. So what is this all about?
As a jurist par excellence Kelsen wants to press the logical genre as hard and as far as possible within the normative (juristic) genre. He wants logic “for himself”, that is to say, for the normative, the ethical, the moral, the legal…but the axiomatics of propositional logic won’t let him have it. No help in “validating” normativity here. Wittgenstein leaves it with Kant once more essentially.
“Ethics is transcendental”.
But Kelsen is brave where Wittgenstein is iconoclastic. Kelsen is not happy to “leave it” with Kant. He struggles with Kant all the time..consciously, latently…the is/ought in the modalities of logical and normative propositioning.
Hart and MacCormick. MacCormick and Hart
The primary/secondary distinction, and the “unity of primary and secondary rules” in the jurisprudence of Hart (e.g. Concept pps.78 et. seq.) occupies a different, less precise space than in Kelsen. Hart’s primary/secondary is somewhat analogous to the distinction of public and private law, or, as he says, “duty imposing” rules and “power conferring” rules.
MacCormick describes the difference of Kelsen and Hart in a sense of Kelsen being more Kantian and Hart more Humean (MacCormick/Hart p.26). He’s right of course.
The distinction legal norm/moral norm in Kelsen
The element of coercion would appear to vanish in the moral norm - it seems not to be necessary. Compliance happens “naturally”. Yet as Wittgenstein says, there must be some “kind” of punishment/reward here, but it is “immanent” (in the action itself), not “consequential”.
Were the legal norm akin to the moral norm in this way, the sanction would be secondary. But it isn’t. Kelsen clearly holds the view that the moral norm is more naturally binding with human conduct than is the case with the legal norm. At the “saintly” end of things any violation of a moral norm would scarcely enter into thought (or would it?). In any case, let us just say that a moral norm purports at least to be taken to heart, which is to say, the matter of its violation is understood to be separate and remote, and, some would say, “unthinkable”.
None of this is so with the legal norm, the violation of which is typically and mundanely expected.
The presumed “symmetry” of legal and moral norms
The basis of any such symmetry is that both forms are normative. But of course it is the normative which is always precisely the question.
What, precisely, is Kelsen saying with his primary/secondary distinction? He is saying that the proportional significance of the sanction in the legal norm is inverted in the moral norm.
In reality of course legal norms and moral norms will live side-by-side, in conflict, in agreement, every which way, and along with all kinds of other norms to boot. But Kelsen is making a theoretical separation. It appears that he wishes the categories law/morality to reciprocate. And there’s no logical reason why they shouldn’t, in the sense that they are both about standards in human conduct.
Accordingly, as we have seen, those primary and secondary elements “swap sides” with respect to the legal and moral norm. In other words, in a movement from legal norm to moral norm, the primary becomes secondary and the secondary becomes primary. There is a sort of mirrored “equivalent” space - as if an egg-timer with primary and secondary contents were turned.
But there are “differends” here, as Lyotard would say. We are not really dealing with models, or egg-timers, or ideal types, or idea-types. Kelsen knows this too, as we shall see. The “equivalence” given to the legal norm and moral norm is granted under the auspices of: “standards in human conduct”. Or, a concept of some such thing: e.g. duty, obligation, responsibility - or, what is called a “deontic” category. But in simple terms: a “catch-all”. Not only that, but a catch-all which begs every single question there ever was to be begged in the sphere of ethics and life itself. Leaving that aside (!), Kelsen’s implication of positive law as an inverted (and as we shall see “positivised”) morality (with primary and secondary elements swapping-sides etc.) is precise and clear.
“Thou shalt not kill…”
It is always presumed preferable that a legal order be akin to a moral one in the sense that it would then be less punitive. “Thou shalt not kill!” - is a moral command. It does not say, it leaves unspecified, what might happen if you do kill. The legal form, on the other hand, would say: “If someone kills (in specified circumstances), they must go to prison.”
Kelsen adds: “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 analogous norms of the legal order.” (General Theory. Ibid. p.143 - my emphasis)
As distinct from the moral, the legal norm defines itself with the sanction; answering in advance the question: “What if I don’t..?”, discussed earlier.
But does the psychopath, or the “ordinary” murderer for that matter, say to himself: “I’d better not kill or I’ll go to prison.” ? Or, how can a murderer, who is by definition a murderer, be deterred?
Deterrence per se attests a lack of efficacy in contrast with the moral norm.
The positive law tends to consequentialism: “If you don’t do this…such and such will happen.” And yet the criminal offender is, by and large, one who doesn’t situate himself in the “addressee instance”.
“Certainly, someone who decides the law instead of being its addressee cannot be a judge but is necessarily a criminal.” (Lyotard. ibid.p.107)
Intention, Willing..
Intention, or willing, is “in life” - it is not a concept. That is to say, it is not in itself a matter of thought. It is irreducible to thinking alone.
The willing of something is the doing of something. That is why we say an “act” of will.
If we imagine intention as a concept only, we will not understand it because it does not exist as a thought.
Thoughts get involved here of course in every way imaginable. They are used to prompt expression of intention, they usher statements, phrases, judgements - by the cart-load.
But an act is not a statement (though someone might say of another that they are “making a statement” by their actions e.g. a “fashion statement”).
Still, every confusion there is to be had is to be had here.
Kelsen defines the norm as giving meaning, or rather as being the meaning of an act of will. His consistent phrase is: “the act of will of which the norm is the meaning”.
But this “will” can never be thought.
This will, this intention, may be thought about; it may be thought of (we are doing that now!) - but to think of it as thought, as a thought-thing is wrong.
That, however, doesn’t stop the error being made time and time again, as Kelsen ceaselessly and tirelessly points out in relation to score and scores of empiricist juristic and philosophical writers.
Willing is doing!
We suggested earlier that a norm is a “setting-square”. Human conduct (whatever that might mean!).
This setting-square gains expression, gains meaning, gains validity…we don’t know why. Only possibly how.
But at a certain crucial point the norm gains such existence and validity regardless of any varying or conflicting interpretations. That is why thought must think of it as a doing, as involving a power… a power which closes thought. A closure arising in the practical demands of “immediacy” of settlement, in the very process of setting-square.
But of course such closure is always a precarious and even dangerous thing, from the ethical point of view, because no act ever done can be undone!
The legal norm is a “positivising” of the ethical. And it does this at its peril from the ethical point of view because there is never any undoing of these acts of will constituting the meaning of the given norm.
Of course legal norms may cease to be valid. That happens all the time, but such a thing can never alter the fact that they were once valid.
A shameful history is never extinguished, can never be extinguished.
“Fictional” basic norms
With his concept “Basic norm”, Kelsen names a “fiction”. It is a fiction in which he allows himself to “bracket-off” the entire tradition of natural law/metaphysical moral philosophy. To put it succinctly, it allows him to bracket-off God.
At note 174 (ibid. General Theory) he says traditional moral philosophy “does not recognise” his “Basic norm” as a fiction. Well it couldn’t recognise “his” basic norm, which isn’t to say it wouldn’t.
The basic norm is Kelsen’s self-styled fiction which arises in the self-evidence of any moral “I ought”. It is the fiction of the “addressor instance”, as Lyotard would say. It is the fiction of the one who commands the “ought”.
If one is morally “called”, morally commanded - one doesn’t demand proof. One doesn’t ask, as addressee, for a “fictional” addressor. But Kelsen is by no means being irreligious in consigning the God, the Absolute of traditional philosophy, to a “fiction” qua Basic norm.
So what is Kelsen up to here? Again a fastidious and dogged determination to distinguish the legal from the moral norm.
“Abracadabra”… “It’s raining” etc.
Quite independently of legal and moral norms, as specific and special kinds of statement, there are some general points here of great importance. For:
If intention or willing has to be an act, a doing of something (no matter how minimal and no matter that one might “not do” what one intended), and…
Intention can never be separated from a statement or phrase, or writing, or utterance etc. (or, to use Austin’s language, can never be merely “parasitic” upon the utterance), then…
Every statement or phrase etc. must contain an act, a “doing”, which is not per se part of anything to do with thought or thinking.
So - if we allow any old statement to “come along” (as Lyotard might say) and present itself, there must always be some act, a doing, associated with it. But not just “associated”, that is to say, not “Platonic”.
“Abracadabra.” “It’s raining.” “Words mean nothing.” “Hello.” “It’s a boy.” Maybe one will say that this is deliberate nonsense, with little “thought” in it. But where, or what is the act, the doing, which is always “there”?
Well, here, in this case, it is the doing of that statement (by me, by hand, as addressor), And there will inevitably be further “doing” when, and if, it communicates with an addressee who reads.
If words could not involve acts (“unthoughts”), in their very being as words, there could not be any words at all.
To summarise, by way of example here. I say to myself: “I intend to read the papers this morning.” And then I don’t. The statement is still an act, still an act of thought. The thought as such doubtless floats away into a pointless irrelevance in the sense that it expresses the opposite of what I actually did. I didn’t read the papers. But even if I did read the papers, the statement would still float away into the mists.
The thought which came and went, however, the vain resolution, existed for a while - if only for a split-second.
And existence presupposes “givens”, presupposes “unthought” elements, presupposes what we are calling here an act.
This is the sense in which no statement or phrase can ever be separated off from an “unthought”, from an act which is somehow both outside and inside the statement or phrase at one and the same time.
Back to the norm
It follows that, quite apart from the legal/moral norm, all statements carry “acts of will”, which is to say, intentions which will not reduce to thought alone. Hence, the difficulties presented by “intention” in the moral/legal norm, the difficulties of “addressor” and “addressee”, the difficulties of these “acts of will”, these “meanings” of norms - all these difficulties are there with any statement or phrase or “speech act”.
Now this is not to say that legal/moral norms aren’t special. They are. That is because, unlike any old mundane phrase or statement (“Hello”, “It’s raining”, “Jack sat down” etc.), the legal/moral norm attains to a power of settlement above all other contending statements. The legal/moral norm has this power of “closure”.
The present future indicative
Legal and moral norms are self-assured of their statements being acts of intention. The indicative or imperative acts of positive law are statements of how things are to be.
“Are to be”. That is a present future indicative. An impossible tense in a way. How are things “to be”, i.e. in the future. How can that be known? Even God doesn’t give that one away! That is why Lyotard suggests God might even give Hitler a drink of water - the final end is not to be guessed at.
Yet the norm audaciously suggests how things “are to be”. In the case of the legal norm, how things “are to be”, until that is no longer the case, until a new norm gets posited and the old one loses validity. In other words: “closure” of thought, or “practical reason” as Kant called it.
How does this power to settle arise? Or, what is the same thing, how does the norm get posited? In general, one can only say that it is time (ultimately time) which presses the closure, the “presumptive” closure. This closure is the act, the striking of the norm. At that point the normative phrase, statement, word, judgement is “done”.
But as “done”, it remains uneasy in the sense that what is done must find uncomfortable expression in a present future indicative. This is “uneasy and uncomfortable” because part of what we mean by “future” is its Siamese-twin: “uncertainty”!
Done in honour of Neil MacCormick, My “Doctor Father”* and friend.
February 2000
*In reference to my doctoral dissertation: "The Language of Equality." (Edinburgh 1978)