Dr.

Ram Manohar Lohiya National Law University

Jurisprudence
Final Draft
Semester V
2018-2019
Problems of the Stufenbaulehre: Kelsen's Failure to Derive the
Validity of a Norm from Another Norm

Submitted to: Submitted By:

Mr. Manwendra Kumar Tiwari Pranav Bhansali
Assistant Professor of Law 160101109
Dr. RMLNLU,Lucknow Section-B
CHAPTERISATION
 PRELUDE
 THE BASIC NORM THEORY
 BLURRING THE DIFFERENCES BETWEEN
INDIVIDUAL AND GENERAL ACTS
 THE VALIDITY OF A NORM CONDITIONED BY A
SINGLE NORM
 ANOTHER HEIRARCHY OF LEGAL ORDER
 AUTONOMY OF LAW
 SUMMARY OF THE ARGUMENT
 SOURCES OF READING
PRELUDE
The Stufenbaulehre is a central and founding element of the Pure Theory of
Law. Most of the criticism of Stufenbaulehre targets the idea of the basic norm,
however unjustified. The criticism stems from a misunderstanding of the
presumptive character of the basic norm and of the whole legal order. Others
have criticised the relativisation of the difference between individual and
general norms, Kelsen monism, and the determination of the validity of a norm
by a single other norm. This can be refuted as well-either because their critique
does not concern as an essential part of the Stufenbaulehre, or because
Stufenbaulehre can be saved by making a small modification to it. However,
there is one criticism. It concerns the founding thought of the whole
Stufenbaulehre, i.e, the derivation of validity. In a law-making process, there is
never derivation of validity: the logical result of a law making process is only a
norm saying “The new norm ought to be valid.” Whether the new norm is in
fact valid, is a different issue which is not dealt by Pure Theory of Law. This
has serious consequences. Without this derivation Stufenbaulehre cannot
survive, and without Stufenbaulehre Pure Theory of Law cannot survive either.
Some valuable parts of Pure Theory of Law might be used in other legal
theories, but these are nothing but transplanted organs from the dead body of
Pure Theory of Law whose heart Stufenbaulehre cannot keep the body alive.
The hierarchy in the Stufenbaulehre is constructed as follows: hypothetical
basic norm (or synonymically: constitution in terms of legal logic)--constitution
(constitution in terms of positive law)-- statutes--ordinances--statutory
instruments--judicial decisions, administrative acts, private legal transactions
physical executive acts (acts of compulsion or coercive acts). The latter (i.e.,
coercive acts) are not considered as part of the legal order, since they do not
comprise norms, only executions of norms.

Some theoretical implications and characteristics of the Stufenbaulehre are to be

mentioned here: 1. First, a high level of autonomy inherent in the legal order
that is obtained in the way that law regulates its own creation and validity ('self-
creation of law',). 2. Second, every level of the hierarchy comprises creation and
application of law at the same time (except for the levels of the basic norm and
the physical execution, since the former means only legislation, while the latter
means only application), i.e., all legal acts have a double legal appearance. They
are Janus-faced. Legal acts are thus, to a certain extent, always objectively
determined by law, but they depend also, to a certain degree, on the subject of
the law-creating/law-applying organ. This freedom of the law-creating/law-
applying organ becomes less and less on the way from the hypothetical basic
norm to the physical coercive act, as the acts become more and more concrete
and individualised, but the freedom of decision (even if less and less) still
remains. The autonomous and heteronomous determinants are, then, present in
both creation and application of law at the same time. Therefore, an absolute
opposition of creation and application of law is inadequate, since they differ in
degree but not in kind. 3. Third, it has to be mentioned that the Stufenbaulehre
explains more than do traditional conceptions of the hierarchy of norms, as it
explains not only the general norms but also the individual acts (individual
norms in the terminology of the Pure Theory of Law) like judicial decisions and
the physical executive acts. 4. Fourth, it is a new feature of the Stufenbaulehre,
as opposed to previous conceptions of the hierarchy of norms, that it does not
only identify the hierarchy, but also gives criteria ('test') for its identification. 5.
And lastly, its most important feature (its virtue, according to some) is that it
gives a dynamic approach to the legal order instead of the static one, i.e., it
answers the question how norms are created. Now post understanding of the
composition of Stufenbaulehre there are some criticism highlighted for it to
make it to a more dynamic approach.
In the following section, an account is given of the points where objections are
or could be made to the Stufenbaulehre: (1) the indefensibility of the basic
norm, (2) blurring the difference between individual and normative acts, (3) the
defeasibility of monism, (4) the derivation of the validity of a norm from one
single other norm, and last (5) the derivation of validity itself. It has to be
examined, to what extent each respective criticism is right, and what answer
was or would have been given by exponents of the Pure Theory of Law.

THE BASIC NORM THEORY

Criticism of the basic norm has almost become some kind of custom in legal
theory: there is hardly any comprehensive work on legal theory that does not--
routinely--attack it. This criticism has five main grounds, i.e., the basic norm
seems to be assailable in five different aspects: (a) first, as the failure of
disparity between 'is' and 'ought', (b) second, as a metaphysical construct, (c)
third, as fiction, (d) fourth, as a logical circulus vitiosus, and (e) fifth, as a
redundant notion.

The first point of criticism, i.e., the failure of the 'is'-'ought' disparity, basically
means that the basic norm actually depends on efficacy, that is to say, on social
facts. This would mean that the source of legal order ('ought') could still be
found in 'is'. According to the second possible point of criticism, the basic norm
is in fact a hollow construction of Natural Law, i.e., a metaphysical relic in the
Pure Theory of Law. Kelsen himself, as a matter of fact, also admits this, as he
considers the basic norm as a relic of Natural Law. According to the third
possible objection, the basic norm is a (redundant) fiction, i.e., it has nothing to
do with the objective description of law as announced by the Pure Theory of
Law, since--strictly speaking--it does not even exist. This objection is supported
by Kelsen himself, who refers to the basic norm in his later works as fiction.
According to the fourth possible objection, the idea of the basic norm is based
on a circulus vitiosus, as it is deduced from legal order, and the legal order is
deduced from it. A plausible compound of the third and fourth objection was
developed by Roman Herzog and says that the basic norm is either circulus
vitiosus (if derived inductively from the existing legal order), or a fiction (if it is
not derived from the valid legal order but simply postulated). According to the
fifth possible objection, the basic norm is a redundant notion, since the question
about the validity of the legal order or the constitution does not make any sense,
as validity implies empowerment; validity is a 'concept of relation' ('Does the
norm correspond to the constitution?'), therefore no question can be asked
meaningfully about the validity of the legal order or the constitution.

BLURRING THE DIFFERENCES BETWEEN INDIVIDUAL

AND GENERAL ACTS
An important characteristic of the Stufenbaulehre in its original form is that it
relativizes the difference between general and individual acts, as it says that this
difference is only one of degree. The lower the level in the Stufenbau, the more
concrete and individual the norm is. It precludes the perception of any sharp
logical difference between general acts and individual acts. The original
argument may be, however, modified in order that the Stufenbaulehre survive
the recognition of the difference between individual and general.

A disposition is either individual or not. There are no transitional levels, no

'more' or 'less individual' norms. A transition in degree is possible only in terms
of 'concreteness'. Therefore an amendment to the Stufenbaulehre has to be
made, i.e., the lower the level in the Stufenbau, the more concrete a norm is. But
whether it is an individual one or not, is not explained by the Stufenbaulehre.

THE VALIDITY OF A NORM CONDITIONED BY A SINGLE

OTHER NORM
According to the Stufenbaulehre, the validity of a norm ('conditioned norm',
bedingte Norm) stems always from one single other norm ('conditioning norm',
bedingende Norm). The problem with this idea is--according to Öhlinger--
twofold: 1. it is never one single other norm that is the condition of the validity
of another norm, and 2. sometimes it is not another but the same norm that is the
condition of its creation (procedural condition). Therefore, validity does not
have to stem from one single other norm.

The standard answer to such objections given by exponents of the Pure Theory
of Law is that in the case of the Stufenbaulehre it is about an ideal type, and
hence it cannot be denied by giving counterexamples. This, however,
contradicts to the objective of the Pure Theory of Law that claims to be 'a
general theory of dogmatics of positive law'. If this theory does not fit with
positive legal orders, the objective is obviously not achieved. Moreover, these
are not simple counterexamples here, but general functional mechanisms of
legal order(s) departing 'regularly' from the model of the Stufenbaulehre. Thus,
the problem seems to be even more complicated than Öhlinger or Walter saw it.
It may be illustrated with a simple example of the amended regulation of
procedure of the Parliament. The validity (or supposed/hypothetical validity) of
these starting points is derived from the basic norm.

ANOTHER HEIRARCHY OF LEGAL ORDER

Merkl in his Prolegomena also mentions another hierarchy of legal order: the
hierarchy according to the derogatory power. In the hierarchy of legal order
according to the derogatory power, any norm 'A' is superior to norm 'B', if norm
'A' can derogate norm 'B', but the inverse is not possible. This method can be
seen as a test of the Stufenbau according to the derogatory power, i.e., in the
case of two given norms one can decide in this way which one is superior to the
other. This hierarchy is not identical with the hierarchy mentioned above as
Stufenbaulehre, the hierarchy of legal order according to the conditions of
lawmaking, since the criterion of the hierarchy was, which norm regulates the
creation of another norm. The Standing orders of the Parliament, for example,
are (in the case of amendments to the constitution) superior to the act of
amendments to the constitution in the hierarchy of legal order according to the
conditions of law-making, since the latter has to be enacted according to the
dispositions of the Standing orders. In the hierarchy of legal order according to
the derogatory power, however, an act of amendments to the constitution is
superior to the Standing orders of the Parliament, since the former can abolish
(put out of force) the latter (and the inverse is not possible).

According to Merkl, norms are basically not derogable. The possibility of

derogation is created only by positive law. If positive law would not allow that,
every small modification to a norm would lead to a completely new legal order.
Thus, the necessity of the derogation stems from the fact that identity of the
legal order can only be assured in this way. The existence of derogation is,
however, not a necessity of norm logic, only a question of expedience.
Therefore, the hierarchy of the legal order according to the derogatory power is
only a question of positive law, and not one of legal logic or of legal-logical
necessity. This may be the reason why Kelsen does not discuss this question
more thoroughly and does not adopt this part of Merkl's argument. This problem
is re-introduced into the Pure Theory of Law only by Robert Walter (1964) and
has since then been a topic frequently discussed in the writings of the Vienna
School of legal theory.

In fact, legal orders can be hierarchized in more aspects. 1. There is a hierarchy

according to the power to put out of force a norm. In terms of the Hungarian
legal system, for example, hierarchy of sources of law is understood as this kind
of hierarchy: a statute is thus superior to an ordinance, since the former can
abolish the latter, while the inverse is impossible. 2. Hierarchy according to
priority in application is most characteristic of the US-American legal system,
in which an act contrary to the constitution is simply not applied (without being
formally abolished) by the courts. This means that in the case of collision, the
constitution has priority in application over statutes. 3. And finally, one can
speak of hierarchy according to 'annulment because of collision'. A superior
norm can be recognized in the case of collision: if another norm is contrary to it,
then it is annulled by an authority (mostly by the constitutional court). The
hierarchy according to annulment and the hierarchy according to the power to
put out of force (abolish) a norm may be connected to each other. (In the current
Hungarian legal system, for example, an infringement of the hierarchy
according to derogation--i.e., the hierarchy of sources of law--has the legal
consequence of annulment by the Constitutional Court). But this is not
necessary: in Hungary, before the establishment of the Constitutional Court
there was no hierarchy according to annulment, only one according to
derogation. One may, of course, attempt to describe each legal order with each
form of hierarchy. The question is, however, by which description the most
transparent and complete picture of the respective legal system can be obtained.
If there is a contradiction between the two criteria, one has to deliberate.
AUTONOMY OF LAW
An important feature of the Stufenbaulehre (and of the Pure Theory of Law in
general) is the emphasising of the autonomy of modern law. In terms of
sociology of science, this idea may have its origins in the experience of reality
in the Austro-Hungarian Monarchy, a state of many nations, where other
integrative factors (a common culture, language, national mentality) were
obviously absent. Therefore, only law remained as the factor of convergence.

Modern law is, without any doubt, more autonomous than former laws were,
i.e., it is more independent of social morality than were pre-modern ones. The
question if it is useful for society to believe that law is autonomous depends on
the social context, since the belief in the autonomy of law may be confirmed by
the belief in its autonomy. Thus, if there is a social morality that does not allow
society to develop efficiently (e.g., lack of respect of property), it may be
helpful to regard law as autonomous, since arguments like 'but according to the
morality of society , inhibiting the development of society may be denied in this
way to be legally useful. But if social morality works for an efficient social
structure, as is the case in the United States, this could be used for a more
efficient accomplishment. Scholars of legal theory are, however, not always
aware of that and in this case--depending on the conception of ideology used--
even the ideological character of the respective legal theory may be challenged.
SUMMARY OF THE ARGUMENT
After reconstructing the Stufenbaulehre , the most important objections to it
were discussed . Most of the objections (especially those against the basic norm
and the statement that validity of a norm is conditioned by one single other
norm) could be refuted, except for one: This 'lethal' thrust was given the Pure
Theory of Law by the basic doubt as to the derivation of validity of a norm
from another norm. It has, in fact, also made previous defence of the basic norm
aimless, as the question of the basic norm is not reached at all in this way.

This was followed by an analysis of the hierarchy according to the derogatory

power . It was shown that it is, unlike the former hierarchy (conditions of law-
making), useful for legal theory (or even for black letter legal science), and that
it has a certain explanatory potential, but the concept of derogation should be
used in a more differentiated way than is the case nowadays. As criteria of the
hierarchy of norms, priority in application, abolishment and annulment should
be distinguished. These hierarchies, however, cannot replace the collapsed
hierarchy according to the conditions of law-making (i.e., the Stufenbaulehre) in
the system of the Pure Theory of Law, as they cannot answer the starting
questions of the Stufenbaulehre.

An analysis of the alleged ideological background made clear that these

ideologies may well have had an impact on the shape of the Stufenbaulehre .
But these arguments (i.e., 'unveiling' the backgrounds) cannot refute the
Stufenbaulehre as a construct of legal theory; this is possible only by way of
legal theoretical arguments.

SOURCES OF READING
Kelsen Theory of Basic Norm-Joseph Raz

How Merkl’s Stufenbaulehre Informs Kelsen’s Concept of Law-Stanley

Paulson

Kelsen's Failure to Derive the Validity of a Norm from Another Norm-Andras

Jakab

PhilPapers.org

Heinonline.org