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Discussion with Brian H. Bix

Kelsenian imputation and the explanation of legal norms

George Pavlakos

Abstract

Brian Bix claims that the explanation of legal normativity does not require reference to any robust normative facts. I seek to vindicate his claim by engaging in a more fine-grained discussion of the explanation of legal facts as found in the work of Hans Kelsen, one of the authors discussed in Bix’s paper. The argument starts with a reconstruction of Kelsen’s account in a more contemporary philosophical vocabulary. Then, I draw a comparison with the well-known attempt, developed in Saul Kripke’s reading of Wittgenstein, to explain the normativity of meaning. Against the backdrop of the comparison, I diagnose a challenge arising for both meaning and law, which takes the form of an explanatory gap argument. Kelsen’s notion of imputation is proposed as an answer to the challenge, which is capable of bridging the relevant gap. Finally, I address some shortcomings Bix identifies as potential threats for Kelsen’s weak explanation of normativity.

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1In his lucidly argued paper, Brian Bix (2018) defends the view that the explanation of legal normativity does not require reference to any robust normative facts. On this view, even though few legal philosophers would disagree that the task of jurisprudence is to explain the normative nature of legal phenomena, there should be little pressure felt to side with those who present moral facts among the correct explanantia of legal facts.

  • 1 The other tradition discussed by Bix is Hartian positivism. However, due to spatial limitations, I (...)

2There is little to disagree with in the big picture Bix paints. What I will attempt, in the brief space allocated to me, is a more fine-grained outline of the task involved in the explanation of legal normativity. I will confine my comments to the work of Hans Kelsen, only one of the two philosophical traditions discussed by Bix in his paper.1 In particular, Bix argues that Kelsen’s account of the legal ‘Ought’ – minimalistic as it may be – remains sufficiently robust to support an understanding of legal phenomena that does not hang on an act of choice or recognition on behalf of the knowing subject. While Bix seems to suggest that the best evidence we can adduce for that is that law is inescapable in the way that it is ubiquitous in our lives, I wish to suggest a different approach: legal phenomena are objective because the possibility of legal knowledge is objective. This objectivity, I will argue, is grounded on the conditions that render intelligible the question of how knowledge of non-legal facts can generate knowledge of legal norms.

3The argument will develop as follows. First, I will offer a reconstruction of Kelsen’s account in more contemporary philosophical vocabulary. I will then draw a comparison with the well-known attempt, developed in Saul Kripke’s reading of Wittgenstein, to explain the normativity of meaning. Against the backdrop of the comparison, I shall diagnose a challenge arising for both meaning and law, which takes the form of an explanatory gap argument. Kelsen’s notion of imputation will be offered as an answer to the challenge, capable of bridging the relevant gap. Finally, I shall address some shortcomings Bix identifies as potential threats for Kelsen’s weak explanation of normativity.

1 Set-up

  • 2 The independence referred to in this context is primarily epistemic, not metaphysical, since Kelsen (...)
  • 3 Kelsen contrasts the explanation he is interested in with causal explanation. While there is insuff (...)

4Kelsen identified legal norms as the object of cognition of the Pure Theory of Law, his rendering of legal science, and sought to preserve the independence2 of the realm of legal objects (norms) from both non-normative, brute facts and value-facts. But the independence of the realm of legal norms from both fact and value is accompanied by two explanatory challenges. First, to explain3 how knowledge of a set of non-normative psychological and physical facts can generate knowledge of legal norms. Second, to explain that knowledge without making reference to any robust value facts.

5The first challenge relates to the non-fundamental nature of legal facts and arises because:

[…] at least part of the essence of the law […] appears to occupy the realm of nature, to have a thoroughly natural existence. If one analyses a parliamentary enactment, say, or an administrative act […] one can distinguish two elements. There is an act perceptible to the senses, taking place in time and space, an external event […] And there is a specific meaning, a sense that is, so to speak, immanent in or attached to the act or event (Kelsen 1992: 8).

  • 4 Kelsen is not very precise in his use of the term ‘fact’, which seems to include both the naturalis (...)

6Accordingly, legal norms are not fundamental but depend on more basic facts,4 which are available to the senses. The key explanatory task for legal science in general and the Pure Theory of Law more specifically is thus to explain how more fundamental, non-normative facts contribute to/determine legal facts (norms). Kelsen explains the relevant contribution in terms of the meaning that attaches to facts: the same set of facts can be interpreted in an objective or in a subjective way, out of which only the former corresponds to the content of a legal norm. The acts of the Captain of Köpenick, the proverbial figure of the impostor, possess only a subjective meaning. In contrast, an identical act issued by a government official acting within her powers possesses the objective meaning of a (legal) norm. It is this objective meaning, attached to the relevant set of non-normative facts, which explains how these contribute to or determine the content of legal norms. Kelsen took subjective meaning to consist in any meaning attached to facts by their authors, including the meanings conferred on them by such normative orders as morality, ethics, and religion. In contrast, objective or legal meaning requires a specifically legal cognition:

External circumstances are always a part of nature, for they are events perceptible to the senses, taking place in time and space; and, as part of nature, they are governed by causal laws […] what makes such an event a legal (or an illegal) act is not its facticity, not its being natural but […] its meaning, the objective sense that attaches to the act. The specifically legal sense […] comes by way of a norm whose content refers to the event and confers legal meaning on it […] The norm functions as a scheme of interpretation (Kelsen 1992: 10).

7Thus, the object of legal cognition (objective meanings or norms) presupposes the activity of legal science, while legal cognition cannot have as its object anything but legal norms:

To comprehend something legally can only be to comprehend it as law […] To characterize acts occurring in nature as legal is simply to claim the validity of norms whose content corresponds in a certain way to that of actual events (Kelsen 1992: 11).

8In this way validity becomes the special mode of existence of legal norms, in a manner that draws a strict separation between the realm of fact and the normative sphere of legal norms:

To speak […] of the validity of a norm is to express […] the specific existence of the norm, the particular way in which the norm is given, in contradistinction to natural reality, existing in time and space. The norm as such, not to be confused with the act by means of which the norm is issued, does not exist in space and time, for it is not a fact of nature (Kelsen 1992: 12).

2 A skeptical challenge

9Yet, the question arises as to what determines which of the two meanings is in play, the objective or the subjective one? The question gains momentum because the lower-level facts, which partly constitute the content of any legal norm, are by themselves incapable of discriminating between subjective and objective meaning. In Kelsen’s (1992: 12) words:

The possible content of the norm, however, is the same as the possible content of an actual event, for the norm refers in its content to this actual event, above all, to human behavior [my emphasis].

10And elsewhere:

the subjective meaning may […] coincide with the objective meaning attributed to the act in […] the legal system (Kelsen 1992: 9).

11This can be helpfully illustrated as follows. As Kelsen submits, it is (logically) possible that there exist multiple mappings from the same set of facts to different subjective meanings, alongside the objective meaning of legal cognition. This is because the same set of facts is logically compatible with multiple interpretations and there is nothing in the facts themselves capable of determining any mapping as being the correct one.

12In a different context of philosophical enquiry the same problem has famously given rise to a devastating skeptical paradox: I am referring to the issue of explaining semantic facts (facts about meaning) in the later work of Ludwig Wittgenstein. The problem is well-rehearsed, so I shall single out only the relevant aspects. Further, I shall directly relate my presentation to Kripke’s (1982) discussion (often identified as Kripkenstein), which has probably identified the ensuing skeptical paradox in its strongest possible version.

13The example concerns a person who correctly added two natural numbers, 57 and 68, which exceed the range of numbers previously added by the same person. The skeptic’s challenge is to explain what makes it the case that the person meant addition (and, hence, applied the function correctly) as opposed to meaning quaddition, where quaddition is a function exactly similar to addition up to the point one of the arguments reaches 57, from which point onward the function’s value becomes 5. Disturbingly, any attempt to answer the skeptic through reference to past history collapses because any such reference can be made consistent with the meaning of quaddition.

  • 5 This is so even when setting aside the strongest version of the link between semantic facts and leg (...)
  • 6 Again, for reasons of simplicity, I include as facts of practice any of the facts deemed by Kripken (...)

14The parallels with the legal case are striking.5 To begin, Kripkenstein takes semantic facts to be normative standards, regulating the use of words/concepts. Thus the explanatory challenge arising is similar to the legal case: on both occasions it is logically possible to have multiple mappings from the same set of facts of past practice6 to different meanings. For, any single set of such facts is logically compatible with different interpretations of the normative standard that is at stake (legal norm in the case of Kelsen; semantic rule in the case of Kripkenstein). Whether a course of action will amount to a legal norm or the relevant semantic standard, cannot be determined just by reference to the facts of past practice. Hence the skeptical paradox: that any interpretation of the facts of the practice can be made compatible with the normative standard at stake, given that there is nothing in the past instances of the practice that could constrain our interpretations:

no course of action could be determined by a rule, because every course of action can be made out to accord with the rule (Wittgenstein 1953: §201).

15Let me transpose this onto Kelsen’s understanding of the law: according to the paradox, there exist no grounds for opting for the objective meaning of a set of facts as opposed to any of the available subjective meanings that are logically possible as interpretations of the relevant set of facts.

3 Kelsen’s bridge

  • 7 This strategy might be associated with the philosophical programme of externalism about mental cont (...)
  • 8 For an application of externalism in the legal domain, see Stavropoulos 1996 and the work of Mark G (...)

16A possible strategy for answering Kripkenstein’s challenge would include arguing that an explanation of meaning facts requires (additional) reference to facts that are external to the practice: e.g. in the case of ‘addition’ to facts of arithmetic, in the case of ‘water’ to facts about ‘H2O’.7 Specifically for law, one suggestion would be to include reference to facts external to the legal practice, such as robust value facts.8

17As we saw earlier, however, the second challenge of the Pure Theory of Law is to preserve the independence of the legal from moral or otherwise robustly normative facts. To recall Kelsen, a key reason for this is that moral norms are as much subjective as are the meanings conferred by the Captain of Köpenick on his edicts. Thus, it is not that Kelsen wants to purge morality because he doesn't agree with it. Morality must stay out because all it can offer is just another subjective interpretation of the relevant non-normative facts.

  • 9 I am relying on the lucid exposition by Schaffer 2017.
  • 10 I submit this as a plausible version of Kelsen’s explanatory task, see n. 3, above.

18But there is a different, perhaps more compelling, way to understand why reference to moral facts might fail to meet the challenge. The skeptical challenge can be usefully illustrated as picking out a particular feature of inter-level explanations, an instance of which is the explanation of normative facts in virtue of less fundamental facts. Explanation in general can be usefully illustrated as having a tripartite structure involving sources, links, and results.9 When we are engaged in explanations, we usually aim to trace patterns of dependence between the sources through a link that makes those patterns intelligible. Thus, in the case of law, a successful explanation would consist in making it intelligible how knowledge of the higher-level facts (norms) can be derived from (or depends on) knowledge of the relevant lower-level facts.10 Arguably, adding moral facts to the sources would not escape the skeptical challenge. For it is a structural feature of intra-level explanations that the skeptical challenge cannot be met just by adding information to the lower level of the explanation (sources). Let me say a little more about why.

19Kripkenstein, in raising the skeptical paradox, points at a key feature of inter-level explanations, such as the one pertaining to legal norms:

  • 11 I am paraphrasing a definition offered by Schaffer 2017: 4. In doing so, I restrict the scope of op (...)

Opacity: It is opaque as to why the obtaining of the source is linked to the obtaining of the result if and only if the proposition that the source obtains without the result obtaining is logically possible.11

20Opacity quite accurately captures our predicament in relation to legal norms. As we saw, it is logically possible that the facts obtain without a norm obtaining – in Kelsen’s parlance, there is nothing supporting the objective over the subjective interpretation of the relevant facts.

21Such opacity is often taken to lead to explanatory gaps, which undermine complete explanations of the target domain (in our case, legal norms). Here is a useful definition:

Explanatory Gap: There is an explanatory gap between source and result if and only if it is opaque why the obtaining of this particular source is linked to the obtaining of that particular result (as opposed to some other result, or no result at all) (Schaffer 2017: 3).

  • 12 Bridging principles, in the context of inter-level explanations, perform the function of linking a (...)

22As an antidote to explanatory gaps, the literature has proposed linking principles (call these bridging principles or bridges), which aim to restore the intelligibility of the linking relation between the sources and the result. Bridges purport to provide substantive information for all the concrete transitions from more fundamental sources to less fundamental results so as to make transparent how a less fundamental target is linked to more fundamental sources (Schaffer 2017: 10ff).12

  • 13 A third version of transparency depends on knowledge of essences, such as when we can derive knowle (...)

23Skipping a taxonomy of possible types of explanatory gaps and respective bridges, I will propose a way of understanding Kelsen’s contribution in this domain, which I base on a reconstruction of his idea of imputation [Zurechnung]. My proposal is that imputation is Kelsen’s version of a bridging principle that aims to make epistemically transparent how lower level facts are (explanatorily) linked to legal norms. Accordingly, imputation can be thought of as a bridging principle for epistemic transparency, which does not require more demanding forms of dependence (e.g. logical entailment).13 Let me adumbrate the role of imputation as a bridging principle.

  • 14 This requires more unpacking: the opacity that generates the explanatory gap between Ought-facts (l (...)

24As submitted earlier, the context of explanation of legal norms is opaque because it is logically possible that we can know all the relevant facts without knowing that the relevant legal norm obtains. The ensuing explanatory gap is modeled by Kelsen as an Is-Ought gap, whereby it is impossible to derive an Ought-fact (legal norm) from any given set of Is-facts (lower-level facts).14 Imputation can be usefully modeled as a bridging principle, the role of which is to create transparency in the context of an inter-level explanation by providing substantive information about the linking relation at work.

25This indeed seems to be consistent with Kelsen’s understanding of imputation. On Kelsen’s view imputation is the linking relation expressed by the legal Ought, the content of which is stated in the hypothetical sentence of the legal norm [Rechtssatz]: ‘If A is, the B ought to be’. In the 1st edition of the Pure Theory of Law, we read:

The Pure Theory […] [understands] the legal norm as a hypothetical judgment that expresses the specific linking of a conditioning material fact with a conditioned consequence. […] Just as laws of nature link a certain material fact as cause with another as effect, so positive laws [] link legal condition with legal consequence […]. If the mode of linking material facts is causality in the one case, it is imputation in the other (Kelsen 1992: 23).

26And a little later:

Expressing this connection, termed ‘imputation’, and thereby expressing the specific existence, the validity, of the law—and nothing else—is the ‘ought’ in which the Pure Theory of Law represents the positive law. That is, ‘ought’ expresses the unique sense in which the material facts belonging to the system of the law are posited in their reciprocal relation. In the same way, ‘must’ expresses the law of causality (Kelsen 1992: 24).

  • 15 See Kelsen 1928: 62 and Heidemann 2013.

27Along these lines, imputation renders intelligible how our knowledge of legal norms can be derived from our knowledge of lower level facts. Imputation constrains the possible mappings from any given set of such facts to multiple meanings and provides a bridge between the relevant set of lower level facts and the objective meaning of a legal norm. It is in this sense that Kelsen’s controversial claim about legal science constituting its object15 should best be interpreted: i.e. the cognition of legal norms depends on the conditions that make their knowledge intelligible.

  • 16 In Neo-Kantian parlance Kelsen submits that imputation serves the purpose of a necessary presupposi (...)

28Accordingly, imputation is a bridging principle for epistemic transparency. Consistent with the programme of Neo-Kantianism, which arguably informs Kelsen’s account, imputation is not a principle of ontological constitution of the objects of the legal discipline (legal norms), but instead a necessary presupposition for the intelligibility of antecedently constituted lower-level materials qua legal norms. ‘Necessary presupposition’ in this context should be understood as an (synthetic) a priori principle that makes intelligible how knowledge of legal facts obtains.16

4 Is law optional?

29Kelsen’s account of legal normativity has struck many as insufficient. The reason quoted is that Kelsen has failed to show that we ought to understand any facts as legal norms. At most, he has shown that doing so depends on a choice. Brian Bix objects to this line of reasoning by arguing that the weak conception of normativity we find in Kelsen can support a claim about the ‘inescapability’ of the legal point of view. I think he is right, but that the account adumbrated earlier can better explain why.

30When understood as explanatory, Kelsen’s Is-Ought gap does not require anyone’s attitudes of ‘commitment’ in order to be bridged. ‘Commitment’ or some other normative attitude would be required in order to endow a state of affairs with motivational force. However, the problem here is one of epistemic transparency, i.e. one of supplying additional information, which can make it intelligible how we derive knowledge of higher level-facts (results) from knowledge of lower-level facts (sources). This is no different to the problem of linking sources to result in any other inter-level explanation, as the discussion of meaning has shown. But if normative attitudes are irrelevant for the task at hand it cannot be an objection to Kelsen’s account that one may choose not to view the law as obligating. Rather a proper objection would require showing that choosing to ignore an entire realm of facts (i.e. law) is a viable option. This, of course, is possible but then law is not a special case: institutions, meaning, kinship, friendship, and even water would be in law’s company. What is more, doing so would place the full burden of proof (and at that a rather heavy one) on the objector.

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Bibliography

Brian BIX, 2018: Kelsen, Hart, and Legal Normativity. Revus. Journal for constitutional theory and philosophy of law (2018) 34. 25–42. URL: https://journals.openedition.org/revus/3984.

Mark GREENBERG, 2004: How Facts Make Law. Legal Theory (2004) 10. 157–198.

Carsten HEIDEMANN, 2013: Facets of ‘Ought’ in Kelsen’s Pure Theory of Law. Jurisprudence (2013) 4. 246-262.

Hans KELSEN, 1928: Die Philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus. Pan Verlag.

Hans KELSEN, 1992: Introduction to the Problems of Legal Theory. 1st edn of Reine Rechtslehre. Trans. B.L. Paulson and S.L. Paulson. Oxford: Clarendon Press.

Saul KRIPKE, 1982: Wittgenstein on Rules and Private Language. Cambridge (Mass.): Harvard University Press.

Joe LAU & Max DEUTSCH, 2016: Externalism About Mental Content. The Stanford Encyclopedia of Philosophy (Winter 2016 Edition). Ed. Edward N. Zalta. URL: https://plato.stanford.edu/archives/win2016/entries/content-externalism/.

Jonathan SCHAFFER, 2017: The Ground Between the Gaps. Philosopher’s Imprint 17 (2017) 11. 1-26.

Nicos STAVROPOULOS, 1996: Objectivity in Law. Oxford: Clarendon Press.

Ludwig WITTGENSTEIN, 1953: Philosophical Investigations. Eds. G.E.M. Anscombe & R. Rhees, trans. G.E.M. Anscombe. Oxford: Blackwell.

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Notes

1 The other tradition discussed by Bix is Hartian positivism. However, due to spatial limitations, I will not comment on it here.

2 The independence referred to in this context is primarily epistemic, not metaphysical, since Kelsen recognises that law is not independent of the realm of naturalistic facts (see the quote from Kelsen 1992: 8 in the main text). However, given the priority of epistemology over metaphysics, which occupies a central position within Neo-Kantian philosophy, questions concerning the existence-conditions of things are treated as addressing conditions for making valid judgments about those things. For the main tenets of Neo-Kantianism, see the excellent discussion by Heidemann 2013.

3 Kelsen contrasts the explanation he is interested in with causal explanation. While there is insufficient textual evidence that he was engaged in strict constitutive explanation, it is plausible to attribute to him the key tasks involved in this type of explanation. I aim to develop this point in more detail in future work, but will assume its truth for present purposes.

4 Kelsen is not very precise in his use of the term ‘fact’, which seems to include both the naturalistic facts that arise in the context of intentional action, such as acts of will and their expressions, but also facts of a social practice, such as the doings and sayings of legal officials. Since little in my account turns on introducing more fine-grained distinctions, I will understand ‘fact’ to include all of the above. Many thanks to an anonymous reviewer who helped me clarify this point.

5 This is so even when setting aside the strongest version of the link between semantic facts and legal norms: i.e. insofar as norms are (objective) meanings, as Kelsen submits, then the skeptical paradox would apply directly to law. But the similarities remain even if legal facts are taken to be merely symmetric to semantic facts, i.e. normative facts that are subjected to explanation through lower level facts.

6 Again, for reasons of simplicity, I include as facts of practice any of the facts deemed by Kripkenstein inert in determining the semantic facts: i.e. all the physical and psychological facts involved in past instances of the relevant practice.

7 This strategy might be associated with the philosophical programme of externalism about mental content, which defends the idea that the contents of our intentional mental states are individuated by the (non-mental) environment. This view counts among its main exponents Saul Kripke, Hilary Putnam and Tyler Burge. For a reliable overview and further discussion see Lau & Deutsch 2016.

8 For an application of externalism in the legal domain, see Stavropoulos 1996 and the work of Mark Greenberg, especially Greenberg 2004.

9 I am relying on the lucid exposition by Schaffer 2017.

10 I submit this as a plausible version of Kelsen’s explanatory task, see n. 3, above.

11 I am paraphrasing a definition offered by Schaffer 2017: 4. In doing so, I restrict the scope of opacity to logical possibility, leaving out cases of a priori entailment and conceivability, which are also discussed by Schaffer.

12 Bridging principles, in the context of inter-level explanations, perform the function of linking a source to a result in a transparent manner, i.e. by eliminating opacity in the sense explained earlier. Whether in the case of law transparency requires a bridging principle that engages moral facts among the explanatia of legal facts is controversial. Kelsen obviously thought that imputation may generate transparency, without making reference to moral facts. A more detailed enquiry into the requirements of inter-level explanations, which involve a transition from non-normative to normative facts, might conclude that something like the prohibition of inferring an Ought form an Is makes additional demands on the structure and content of bringing principles. However, this enquiry must be deferred to a future occasion. Many thanks to an anonymous referee for raising this point.

13 A third version of transparency depends on knowledge of essences, such as when we can derive knowledge of ‘water’ from our knowledge of molecules of Hydrogen and Oxygen plus our knowledge of the essence of water (i.e. ‘water is H2O’). This version is equally not required for Kelsenian epistemic transparency.

14 This requires more unpacking: the opacity that generates the explanatory gap between Ought-facts (legal norms) and Is-facts (non-normative facts) is due to the fact that there exist logically possible mappings from the same source (set of facts) to multiple subjective meanings, which are not legal norms.

15 See Kelsen 1928: 62 and Heidemann 2013.

16 In Neo-Kantian parlance Kelsen submits that imputation serves the purpose of a necessary presupposition that justifies the possibility of the factum of legal science.

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References

Electronic reference

George Pavlakos, « Kelsenian imputation and the explanation of legal norms », Revus [Online], in print | 2018, Online since 22 November 2018, connection on 11 December 2018. URL : http://journals.openedition.org/revus/4808 ; DOI : 10.4000/revus.4808

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About the author

George Pavlakos

Professor of Law and Philosophy, School of Law, University of Glasgow (UK).

Address: School of Law – R210 Level 2 – 6 The Square – University of Glasgow – Glasgow G12 8QQ – Scotland, United Kingdom.

E-mail: georgios.pavlakos [at] glasgow.ac.uk

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