Popper’s revenge (Kelsen’s glue, part 2)

Alternative title: Calling bullshit (Hans Kelsen edition)

We have been blogging about legal positivism all week, and we identified Hans Kelsen’s key contributions to legal theory in my previous post. In brief, one of Kelsen’s great insights is his structural or “systematic” approach to positive law. Andrei Marmor, one of the leading contemporary students of Kelsen’s work, summarizes Kelsen’s systems insight with the following two postulates: “1. Every two norms that ultimately derive their validity from one basic norm belong to the same legal system. 2. All legal norms of a given legal system ultimately derive their validity from one basic norm.” (See Marmor, 2016, available here.) In other words, every legal rule or norm belongs to a given legal system, and at the top of every legal system is a basic norm validating all the rules in that particular legal system. The “basic norm” is thus the key ingredient of Kelsen’s theory of law.

Alas, there is only one problem with Kelsen’s elegant theory: it’s total bullshit!

Kelsen’s “basic norm” is bullshit not because it is a fictional or hypothetical entity–the world of science is littered with plenty of unobservable entities like electrons and natural selection. No, the basic norm is bullshit because there is no way of testing or “falsifying” (in the parlance of Karl Popper) its existence. Specifically, I am thinking here of Karl Popper’s influential demarcation principle. What distinguishes science from politics, for example, or science from morality? According to Popper, for a theory to be considered “scientific” it must be able to be tested and refuted. Although Popper’s theory of science raises many questions (see, for example, the image below), at a minimum if we are going to construct a scientific theory of positive law (as Kelsen was purporting to do), we need to find a way of putting that theory to the test. Kelsen’s basic norm idea, however, is untestable. We must presuppose its existence wholesale instead of figuring out how to measure its truth-value. We will thus waste no further time on Kelsen …

We will proceed to H.L.A. Hart next week, starting on Monday, July 6. Unlike Kelsen, this Oxford don will attempt to present a testable theory of positive law, one that would revolutionize the world of legal theory forever …

Source: Paul Austin Murphy (via Blogger)

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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