Introduction to Law Course PDF - LBA-1 2024

Introduction to law Course LBA -1 2024 Prof. Aya Riahi Law has a reputation for being dry, austere, and even ungrateful: the commonly held belief is that "to study law, you must memorize everything," and it is often thought that a lawyer’s main asset is a good memory. Furthermore, law...

Introduction to law Course LBA -1 2024 Prof. Aya Riahi Law has a reputation for being dry, austere, and even ungrateful: the commonly held belief is that "to study law, you must memorize everything," and it is often thought that a lawyer’s main asset is a good memory. Furthermore, law is frequently seen as an instrument of generalized constraint: the lawyer is the one who restricts freedoms, the one who prevents things from moving forward... But this bad reputation is largely undeserved, and those who have studied law know that the subject is particularly rich and opens up very interesting perspectives. Studying law goes far beyond the mechanical memorization of rules and statutes. It cultivates a unique way of thinking, a specific perspective through which individuals view the world and make informed decisions. Law, at its core, is like a compass ("boussole") guiding one's understanding of society, relationships, and justice. It is about mastering the art of interpretation and applying the principles of law to complex, dynamic situations, while adapting to new facts and evolving societal norms. As legal scholar Oliver Wendell Holmes Jr. famously said, “The life of the law has not been logic; it has been experience.” This reflects the idea that law isn't merely a set of rigid rules to memorize. Instead, it evolves through the collective experience of society, constantly reshaped by new interpretations and applications. The task of a lawyer, then, is not just to know the law but to think like a lawyer, to interpret and apply the law within real-world contexts with creativity, flexibility, and a deep understanding of its purpose and spirit. The notion of law as a flexible, interpretive discipline is also supported by the concept of jurisprudence, which emphasizes that law is shaped by reasoning and precedent, rather than just rigid adherence to codified norms. As Ronald Dworkin, a prominent legal philosopher, explains, "Law as integrity asks judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author—the community personified—expressing a coherent conception of justice and fairness." This means that lawyers and judges are engaged in a continuous dialogue with the law, shaping it through interpretation that serves the broader goals of justice, fairness, and social order. Moreover, law students are trained to develop legal reflexes, the ability to instinctively identify issues, foresee consequences, and adapt strategies to changing circumstances. This legal mindset requires a comprehensive understanding of both the letter and the spirit of the law. The spirit, or underlying intention, of a law is often more important than its literal meaning, especially when laws are applied to real-life situations that lawmakers might not have foreseen. This interpretive flexibility is the key to effective legal thinking. Lord Denning, one of the most influential judges in English common law, was known for emphasizing that law must be interpreted and applied in a way that serves justice: “What is the point of having rules if they don’t achieve justice?” His approach exemplified how legal practitioners need to look beyond formalism and technicalities and understand the intentions behind laws, using them as tools for achieving fair outcomes. Thus, studying law is about developing a mindset equipped for critical thinking, analysis, and creativity. Law shapes how you see problems, identify solutions, and navigate complex societal interactions. It teaches one to think in terms of legal principles, always ready to evaluate facts, predict consequences, and apply law judiciously in service of society's evolving needs. The rule of law is a fundamental principle that ensures law governs a society, as opposed to arbitrary decisions by individual rulers. It implies that everyone, including government officials, is subject to the law, which must be clear, predictable, and applied consistently. The rule of law safeguards fairness, justice, and equality, ensuring that laws are made following established procedures and that they respect fundamental rights. law truly “lives” or exists within a society when both the rulers (those who govern) and the ruled (citizens) demonstrate a commitment or “fidelity” to the ideal of the rule of law. This idea goes beyond the mere existence of legal systems and regulations; it argues that the rule of law only flourishes when it is upheld in both institutional structures and in the minds and behaviors of individuals within society.1 Breakdown of the Idea 1. Institutional Requirements: The rule of law relies on robust institutional frameworks—offices, rules, and procedures that shape how those in power interact with one another and with citizens. These frameworks ensure checks and balances, preventing abuse of power and guaranteeing that laws are made, interpreted, and enforced in a fair and orderly manner. 2. Ethos of Fidelity: For the rule of law to be effective, it must not only be reflected in institutions but also embodied in the ethos or spirit of those who operate within and interact with those institutions. This ethos includes two intertwined elements: o Professional Culture: Legal professionals—judges, lawyers, public officials—must adhere to the values of fairness, justice, and impartiality. They must uphold the law even when it is inconvenient, ensuring that their personal biases or external pressures do not override their duty to the law. o Individual Virtue: Citizens and officials alike must internalize the values of the rule of law. It requires a collective recognition that the law applies equally to all and a shared commitment to resolving disputes, ensuring accountability, and maintaining social order through lawful means. Analysis of the Idea The ideal of the rule of law is described as a "complex phenomenon" because it requires more than just institutions and laws on paper. While laws may exist in a given society, their effectiveness hinges on the attitudes and actions of those who govern and those who are governed. Laws are only as powerful as the belief that they are just, and their legitimacy depends on both the professional integrity of officials and the public's trust in these institutions. This reflects the interplay between formal structures (laws, courts, government offices) and informal norms (belief in justice, individual morality). The quote highlights that it’s not 1 The Life of International Law Is Not Logic but Experience David Lefkowitz* enough to have laws and procedures; the moral and ethical commitment of those applying the law is equally crucial. The “fidelity” or loyalty to the rule of law requires an alignment between what institutions dictate and how individuals behave within them. For example, if government officials manipulate laws to suit personal interests, or if citizens see laws as unfair or arbitrary, the rule of law loses its vitality. In contrast, when everyone—both leaders and citizens—understands and respects the spirit of the law, society is more likely to resolve conflicts peacefully, promote fairness, and protect rights. Examples in Practice 1. Judicial Independence: For the rule of law to thrive, the judiciary must be independent from political pressures. Judges must base their rulings on the law, without fear of retaliation or corruption. This institutional aspect is crucial to maintaining a fair legal system. However, the ethos of fidelity to the law also requires judges to embrace virtues like impartiality, honesty, and dedication to justice, ensuring that their decisions reflect the true spirit of the rule of law. 2. Public Trust: In democratic societies, public confidence in legal institutions is vital. Laws that are created with public input and respect human rights foster this trust. But citizens themselves must also show fidelity by respecting the legal process— challenging unjust laws through legal means, voting, or peaceful protest rather than resorting to violence or civil disobedience. This dual respect for both law and the institutions behind it is what breathes life into the rule of law. 3. Ethics in Law Enforcement: Law enforcement agencies are charged with upholding laws. However, the effectiveness of their work hinges on their ability to exercise authority ethically and justly. A police force that applies laws without prejudice and with integrity upholds the rule of law both institutionally and morally. On the other hand, if citizens lose faith in law enforcement due to misconduct or corruption, this breaks down the rule of law’s ethos in society. (THE STATE MONOPOLIZES THE POWER TO USE LEGITIMATE VIOLENCE) Conclusion The rule of law is not just a set of abstract principles or a collection of regulations; it is a living concept that depends on the alignment of formal institutions with the values and virtues of those who govern and are governed. For a society to genuinely embody the rule of law, there must be a shared commitment to justice, fairness, and respect for the law at both the institutional and individual levels. This dual commitment, reflected in the professional culture of legal practitioners and the virtue of citizens, sustains the rule of law and allows it to thrive as a cornerstone of a just society. What is the law? Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society Law is a system of rules, principles, and standards established by a governing authority to regulate behavior within a society. It provides a framework for resolving disputes, protecting individual rights, and ensuring justice by setting out obligations, prohibitions, and legal consequences for actions. Law serves as a tool to maintain order, promote fairness, and guide social, economic, and political interactions, adapting to the evolving needs of the community it governs. Why Law? Law exists to create order, provide justice, and protect rights within society. It regulates behavior by setting out clear rules that must be followed, providing predictability and fairness in dealings between individuals, businesses, and governments. Without law, societies would struggle to function effectively, as there would be no formal mechanism to resolve disputes, protect vulnerable members, or maintain peace and security. In essence, law serves these key purposes: 1. Maintaining Order: It establishes guidelines for acceptable behavior and provides consequences for breaking these rules, helping maintain social harmony. 2. Protecting Rights and Liberties: Law ensures that individuals' rights, such as property rights and personal freedoms, are safeguarded from infringement. 3. Resolving Disputes: It provides a structured process for resolving conflicts between individuals, businesses, and the state. 4. Establishing Standards: Law sets standards for acceptable conduct in areas like commerce, employment, and public safety, ensuring accountability and fairness. 5. Promoting Justice: Law aims to ensure that people are treated fairly and equitably, fostering trust in the legal system and society at large. Law vs. Ethics While law and ethics are closely related, they differ in several key ways: Law:  Nature: Law is a formal system of rules enforced by the state or governing authority. It is codified, meaning it is written down in legal statutes and regulations. Enforcement: Violating a law results in legal consequences, such as fines, imprisonment, or other penalties. Courts and legal institutions enforce the law. Scope: Laws apply to everyone within a jurisdiction and cover a wide range of topics, from criminal behavior to business regulation. Objective: Law is designed to maintain order, resolve disputes, and protect individuals' rights in a consistent, predictable manner. Ethics: Nature: Ethics refers to a set of moral principles or values that guide behavior, often based on personal beliefs, cultural standards, or professional codes. Enforcement: Ethical standards are not enforced by the government but by social, professional, or community norms. Breaking ethical rules may result in social disapproval, loss of reputation, or professional sanctions but not legal punishment. Scope: Ethics vary from one individual or group to another and are more subjective than laws. What is considered ethical in one culture may not be in another. Objective: Ethics aims to promote moral conduct, fairness, and integrity in personal and professional interactions. Key Difference: Law is mandatory: You must follow the law or face legal consequences. Ethics is voluntary: It involves a personal or collective sense of what is right or wrong, often extending beyond what the law requires. Neighbor Concepts: Morality, Justice, and Custom Morality: Definition: Morality refers to personal or societal beliefs about what is right and wrong. Unlike law, morality is not enforced by the state, though it may influence legal norms. Relation to Law: Laws are often influenced by society’s moral values, but not all immoral actions are illegal (e.g., lying to a friend may be immoral but not illegal). Similarly, not all illegal actions are immoral (e.g., breaking a minor traffic law might not be seen as morally wrong). Justice: Definition: Justice is a philosophical concept concerned with fairness, equity, and the fair distribution of benefits and burdens in society. It is the goal that law seeks to achieve. Relation to Law: While law is a tool for delivering justice, laws themselves can sometimes be unjust, depending on how they are applied or written. Legal reforms often arise from the pursuit of greater justice. Custom: Definition: Customs are long-standing practices or traditions that people in a society follow. While customs are not legally enforceable, they can influence the development of laws. Relation to Law: In many legal systems, particularly in civil law and common law traditions, customs can have legal significance, especially in areas where written laws are silent. In Summary: Law: Formal rules enforced by the state, with legal consequences for violation. Ethics: Moral principles that guide behavior, with informal consequences such as social disapproval. Morality: Personal or societal beliefs about right and wrong, broader than law. Justice: The ideal goal of fairness that law aims to achieve. Custom: Informal practices or traditions that can influence legal norms. Understanding the distinctions between law, ethics, and these neighboring concepts helps clarify how societies regulate behavior through a combination of formal rules and informal guidelines. The Rules of Law: Definition The rule of law refers to the set of legal rules that have a general, abstract, and mandatory character. It is, therefore, the body of legal rules that govern human life in society, and whose violation is sanctioned by public authority. It is precisely this latter point that distinguishes the rule of law from other rules that also aim to regulate the behavior of individuals in society. For example, religious or moral rules also tend to dictate how individuals should behave, but unlike the rule of law, they are not enforced by public authority. It should be noted that the rule of law can have sources other than written law (such as custom or practices, for example). The rule of law is also known as "objective law." Objective law must be distinguished from subjective rights, which are the prerogatives recognized to legal subjects by objective law. Note: You can click here to read a full article on objective law and subjective rights. The Characteristics of the Rule of Law The General Nature of the Rule of Law The rule of law must be the same for everyone. As such, it must be: Abstract General Impersonal Consequently, the rule of law must not take into account the specifics of each individual. It is not intended to govern specific situations. In practice, phrases like "anyone" or "everyone" are used in legal rules, implying that they apply to all. However, this principle that the rule of law must be the same for all individuals should be nuanced. More specifically, the rule of law must be the same for individuals in identical situations. Thus, people in different situations may be subject to different rules of law. For example, the regulations governing marriage apply only to married couples. Couples united by a civil union (PACS) are subject to the rules of the PACS, while couples living together (cohabitation) are subject to the rules of cohabitation. Similarly, labor regulations only apply to private-sector employees. There are also special regimes that apply to certain specific categories of people. For example, minors or adults under legal protection (adults under guardianship, curatorship, etc.) benefit from special legal regimes that differ from common law. The Mandatory Nature of the Rule of Law The rule of law defines the behaviors individuals must follow within society. Therefore, it is essential that it be respected by those to whom it applies. For this reason, it must be made mandatory. However, a distinction must be made between imperative rules and supplementary rules, which do not apply with the same force. Supplementary rules are those that individuals can deviate from or replace with another rule. However, if they are not overridden by other rules, they will apply. For example, in a sales contract, the buyer is generally required to pay the seller at the place and time the goods are delivered (Article 1651 of the Civil Code). However, the parties to the contract can stipulate that payment will take place at another location or time. This legal rule is therefore a supplementary rule, as the parties can override it, but if they do not, it will apply. Imperative rules, on the other hand, are rules that individuals cannot deviate from. They must be respected in all situations. Some of these rules are particularly strict and are referred to as public policy (Article 6 of the Civil Code), as they protect a public interest, not a private one. For example, marriage between a brother and sister is prohibited. This is a public policy rule that cannot be overridden (Article 162 of the Civil Code). The Coercive Nature of the Rule of Law Since it is intended to govern life in society and the relationships between its members, the rule of law must be coercive: anyone who does not comply with it will be sanctioned by public authority. Indeed, no one can enforce justice on their own. Only the State has the right to sanction individuals who do not comply with the rule of law: it holds the monopoly on legitimate coercion. There are various sanctions that will be applied depending on the consequences of the failure to comply with the rule of law: Punishment: This is applied only in the case of criminal offenses. Examples: fines, imprisonment, community service, etc. Enforcement: This occurs through the forced enforcement of a rule; the individual will be compelled to comply with the rule of law. Compensation: This occurs through the awarding of damages. The Social Purpose of the Rule of Law Law provides rules of conduct to govern relations between citizens and thus maintain social peace. Therefore, it is necessary to distinguish law from other concepts that also aim to regulate relations between people. First, law must be distinguished from religion. In some countries, law and religion are closely intertwined, making it difficult to distinguish between them. However, in France, since the separation of Church and State in 1905, the French State is neutral, and law is indifferent to religion; religion is not a source of law. For example, since the law of July 11, 1975, adultery is no longer a criminal offense, even though religions condemn it. Note: I have written a complete essay on the topic of law and religion. You can read it by clicking here. Next, law must be distinguished from morality. Morality refers to the set of rules of conduct in society that are considered good. It is stricter than law, but law often draws inspiration from it. For example, contracts must conform to good morals (Article 6 of the Civil Code). Note: You can click here to read a full article on law and morality. Finally, law must be distinguished from equity. Equity refers to a form of spontaneous justice, not inspired by current legal rules. To determine whether an individual's conduct is just or unjust, one appeals to notions of natural justice and ethics. Equity must be distinguished from law because it is a more subjective concept. Note: A judge may rule in equity if authorized by the parties involved. THE CONCEPT OF THE DAY : The rule of law is a foundational principle in legal systems worldwide. It refers to a system where laws, not individuals or rulers, govern society, ensuring that laws are applied consistently, fairly, and universally. This principle has equivalents in various languages, each carrying its own historical and cultural significance, shaped by legal traditions and philosophies. 1. French: État de droit In French, the rule of law is referred to as État de droit. This term is derived from two components: État, meaning "state," refers to the political structure and authority of a country. Droit, meaning "law" or "right," signifies the legal system and the idea of justice. The term État de droit emphasizes that the state itself is bound by laws, suggesting that power is not arbitrary but exercised according to legal frameworks. This notion aligns with the philosophy of Montesquieu, a French Enlightenment thinker who promoted the separation of powers to prevent tyranny, ensuring that law governs the state and protects individual liberties. 2. German: Rechtsstaat In German, the concept of the rule of law is expressed as Rechtsstaat, which breaks down into: Recht, meaning "law" or "right." Staat, meaning "state." Etymologically, Rechtsstaat emphasizes a state governed by laws and where the government itself is subject to the law. The German philosopher Immanuel Kant was instrumental in developing this idea in the 18th century. His vision of a Rechtsstaat promoted legal rationality, ensuring that laws are applied equally and that citizens are safeguarded from the arbitrary use of power. The German tradition stresses that law must be predictable, transparent, and rooted in principles of justice. 3. Latin: Ius and Lex Though Latin is no longer spoken as a national language, it profoundly influenced legal terminology. The Latin terms Ius and Lex are central to understanding the etymological foundations of law: Ius refers to the abstract concept of law, rights, and justice, often linked to natural law and moral order. Lex refers to a specific written statute or law, imposed by legislative authority. These terms highlight the dual nature of law: its moral foundation (Ius) and its formal codification (Lex), both of which are essential in maintaining the rule of law. Ancient Roman legal thought heavily influenced modern Western legal systems, particularly the idea that laws should be universal and accessible to all. 4. Italian: Stato di diritto In Italian, the term used is Stato di diritto, closely mirroring the French État de droit. Stato refers to the state, while Diritto means law or right, similar to the French droit. In the Italian context, Stato di diritto reflects the nation’s long tradition of civil law, with roots in Roman legal systems. It underscores the importance of law in guiding governmental authority and ensuring citizens’ rights are protected. 5. Spanish: Estado de derecho In Spanish, the term Estado de derecho is used: Estado refers to the state. Derecho refers to law or rights, sharing the same Latin root as the Italian diritto and the French droit. The concept in Spanish-speaking countries often emphasizes the protection of fundamental rights and the democratic accountability of governments, where the law serves as a guardian against authoritarianism and power abuses. Etymological Roots and Significance Across these languages, the term for the rule of law underscores the integration of law into state governance: Staat (German), État (French), Stato (Italian), and Estado (Spanish) all denote the political apparatus of the state. Recht, droit, diritto, and derecho share roots in the Latin term "directus", meaning "straight" or "correct," emphasizing the role of law in guiding society along a just and fair path. The rule of law, no matter the language, is fundamentally about ensuring that law serves as the backbone of governance, limiting arbitrary power and promoting justice and equality. It reminds us that the law must be predictable, clear, and applicable to all, including the state itself, thus providing a framework for social stability and individual freedoms. The concept of the rule of law in English is not called "state of rights" or "state of law" for historical and philosophical reasons that distinguish it from other languages like French (État de droit) or German (Rechtsstaat). Let's break down why this term evolved differently in English. 1. Origins of "Rule of Law" The term "rule of law" originates from Anglo-Saxon common law traditions rather than from Roman or Napoleonic codes that influenced continental European legal systems. The emphasis in English legal thought has always been on the idea that laws, not rulers, govern society. This places focus on the principle rather than the institution of law. "Rule" refers to the governance or control of something, emphasizing the process by which laws operate. The phrase highlights that the law is supreme, governing even the government and its agents. The term does not stress the "state" as much as the application of law. It’s not about the state enforcing rights or law; it’s about laws themselves being sovereign. This reflects a bottom-up understanding of governance, where the law controls power, rather than a top-down view where the state enforces laws. 2. Difference between "Rights" and "Law" The term "rights" emphasizes individual entitlements, while the "rule of law" refers to the broader principle that laws (including rights) must govern all actions within society, including those of the government. If the concept were called "state of rights," it would focus exclusively on individual rights rather than the broader framework of laws that govern all behavior, including both rights and obligations. The rule of law ensures that laws apply equally and that no one, including the state, is above the law. 3. Common Law vs. Civil Law Tradition In civil law systems (like in France or Germany), the focus is often on the state as the source of law. Thus, terms like État de droit or Rechtsstaat emphasize the state and its role in upholding laws. These terms reflect the idea that the state creates and upholds laws that govern society. By contrast, in English common law tradition, law is seen as something that emerges from judicial decisions, precedents, and customs, rather than being purely state-imposed. The rule of law in the English tradition signifies the process by which laws are applied, highlighting the primacy of the legal system over the government. 4. Historical Evolution The idea of the rule of law in the English-speaking world traces back to documents like the Magna Carta (1215), which established that even the king is subject to the law. It focused on limiting arbitrary power and establishing that laws, not rulers, have authority. Over time, this concept evolved into the idea that laws themselves, rather than specific institutions like the state, must govern society. In the Enlightenment period, thinkers like John Locke and A.V. Dicey in the UK further developed the notion of the rule of law, emphasizing legal processes and individual liberties. They argued that laws should be clear, public, and applied equally, ensuring that citizens and rulers alike are accountable to the law. 5. Why Not "State of Law"? The term "state of law" would suggest that the focus is on the government’s role in enforcing the law. However, the rule of law in the English context goes beyond just the state’s application of law to emphasize a legal culture where laws govern everything— including the state itself. The rule refers to the principle that no one is above the law, including lawmakers and enforcers, while "law" represents a consistent body of regulations that everyone must follow. Conclusion In summary, the rule of law in English reflects a different legal tradition than that of continental Europe. It emphasizes the supremacy of law itself rather than the state's role in upholding laws. By focusing on law as a governing principle (hence "rule"), the English term stresses that everyone is subject to the law, ensuring equality, justice, and protection from arbitrary power. This is why terms like "state of rights" or "state of law" do not accurately capture the broader philosophical and historical nuances of the English legal tradition. Pure Theory of Law The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973) (see the bibliographical note). Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle” 1. The Basic Norm 2. Relativism and Reduction 3. The Normativity of Law 1. The Basic Norm The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world (PT1, 10). Suppose, for example, that a new law is enacted by the California legislature. How is it done? Presumably, some people gather in a hall, debate the issue, eventually raise their hands in response to the question of whether they approve a certain document or not, count the number of people who say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and events described here are not the law. To say that the description is of the enactment of a new law is to interpret these actions and events in a certain way. But then, of course, the question is why certain acts or events have such a legal meaning and others don’t? Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal- normative meaning by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm that authorizes its enactment in that way. In other words: it is the law in the United States that the California legislature can enact certain types of laws. But what makes this the law? The California Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of content and jurisdiction. But then what makes the California Constitution legally valid? The answer is that the legal validity of the Constitution of California derives from an authorization granted by the US Constitution. What makes the US Constitution legally valid? Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the land”. Any document can say that, but only the particular document of the US Constitution is actually the supreme law in the United States. The problem is that here the chain of authorization comes to an end: There isn’t a higher legal norm that authorizes the enactment of the (original) US Constitution. At this point, Kelsen famously argued, one must presuppose the legal validity of the Constitution. At some stage, in every legal system, we get to an authorizing norm that has not been authorized by any other legal norm, and thus it has to be presupposed to be legally valid. The normative content of this presupposition is what Kelsen has called the basic norm. The basic norm is the content of the presupposition of the legal validity of the (first, historical) constitution of the relevant legal system As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate David Hume’s injunction against deriving an “ought” from an “is”. Hume famously argued that any practical argument that concludes with some prescriptive statement, a statement of the kind that one ought to do this or that, would have to contain at least one prescriptive statement in its premises. If all the premises of an argument are descriptive, telling us what this or that is the case, then there is no prescriptive conclusion that can logically follow. Kelsen took this argument very seriously. He observed that the actions and events that constitute, say, the enactment of a law, are all within the sphere of what “is” the case, they are all within the sphere of actions and events that take place in the world. The law, or legal norms, are within the sphere of “ought”, they are norms that purport to guide conduct. Thus, to get an “ought” type of conclusion from a set of “is” premises, one must point to some “ought” premise in the background, an “ought” that confers the normative meaning on the relevant type of “is”. Since the actual, legal, chain of validity comes to an end, we inevitably reach a point where the “ought” has to be presupposed, and this is the presupposition of the basic norm. The idea of the basic norm serves three theoretical functions in Kelsen’s theory of law: The first is to ground a non-reductive explanation of legal validity. The second function is to ground a non-reductive explanation of the normativity of law. The third function is to explain the systematic nature of legal norms. These three issues are not un-related. Kelsen rightly noticed that legal norms necessarily come in systems. There are no free- floating legal norms. If, for example, somebody suggests that “the law requires a will to be attested by two witnesses”, one should always wonder which legal system is talked about; is it US law, Canadian law, German law, or the law in some other legal system? Furthermore, legal systems are themselves organized in a hierarchical structure, manifesting a great deal of complexity but also a certain systematic unity. We talk about Canadian law, or German law, etc., not only because these are separate countries in which there is law. They are also separate legal systems, manifesting a certain cohesion and unity. This systematic unity Kelsen meant to capture by 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. Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that they are both inaccurate, at best. Two norms can derive their validity from the same basic norm, but fail to belong to the same system as, for example, in case of an orderly secession whereby a new legal system is created by the legal authorization of another. Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his main insight remains true, and quite important. It is true that law is essentially systematic, and it is also true that the idea of legal validity and law’s systematic nature are very closely linked. Norms are legally valid within a given system, they have to form part of a system of norms that is in force in a given place and time. This last point brings us to another observation that is central to Kelsen’s theory, about the relations between legal validity and, what he called, “efficacy”. The latter is a term of art in Kelsen’s writings: A norm is efficacious if it is actually (generally) followed by the relevant population. Thus, “a norm is considered to be legally valid”, Kelsen wrote, “on the condition that it belongs to a system of norms, to an order which, on the whole, is efficacious” So the relationship here is this: efficacy is not a condition of legal validity of individual norms. Any given norm can be legally valid even if nobody follows it. (e.g. think about a new law, just enacted; it is legally valid even if nobody has yet had an opportunity to comply with it.) However, a norm can only be legally valid if it belongs to a system, a legal order, that is by and large actually practiced by a certain population. And thus the idea of legal validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system exists, as it were, only as a social reality, a reality that consists in the fact that people actually follow certain norms. What about the basic norm, is efficacy a condition of its validity? One might have thought that Kelsen would have opted for a negative answer here. After all, the basic norm is a presupposition that is logically required to render the validity of law intelligible. This would seem to be the whole point of an anti-reductionist explanation of legal validity: since we cannot derive an “ought” from an “is”, some “ought” must be presupposed in the background that would enable us to interpret certain acts or events as having legal significance. Kelsen, however, quite explicitly admits that efficacy is a condition of the validity of the basic norm: A basic norm is legally valid if and only if it is actually followed in a given population. In fact, as we shall see below, Kelsen had no choice here. And this is precisely why at least one crucial aspect of his anti-reductionism becomes questionable. 2. Relativism and Reduction Common wisdom has it that Kelsen’s argument for the presupposition of the basic norm takes the form of a Kantian transcendental argument. The structure is as follows: 1. P is possible only if Q 2. P is possible (or, possibly P) 3. Therefore, Q. In Kelsen’s argument, P stands for the fact that legal norms are “ought” statements , and Q is the presupposition of the basic norm. In other words, the necessary presupposition of the basic norm is derived from the possibility conditions for ascribing legal significance to actions and events. In order to interpret an action as one of creating or modifying the law, it is necessary to show that the relevant legal significance of the act/event is conferred on it by some other legal norm. At some point, as we have noted, we necessarily run out of legal norms that confer the relevant validity on law creating acts, and at that point the legal validity has to be presupposed. The content of this presupposition is the basic norm. It would be a mistake, however, to look for an explanation of Kelsen’s argument in the logic of Kant’s transcendental argument. Kant employed a transcendental argument to establish the necessary presuppositions of some categories and modes of perception that are essential for rational cognition, or so he thought. They form deep, universal, and necessary features of human cognition. Suffice it to recall that it was Hume’s skepticism about knowledge that Kant strove to answer by his transcendental argument. Kelsen, however, remains much closer to Hume’s skeptical views than to Kant’s rationalism. In particular, Kelsen was very skeptical of any objective grounding of morality, Kant’s moral theory included. Kelsen’s view of morality was relativist all the way down. (More on this, below). Second, and not unrelated, as we shall see, Kelsen has explicitly rejected the idea that the basic norm (in law, or of any other normative domain) is something like a necessary feature or category of human cognition. The presupposition of a basic norm is optional. One does not have to accept the normativity of law; anarchism, as a rejection of law’s normative validity is certainly an option, Kelsen maintained. The basic norm is presupposed only by those who accept the “ought”, that is, the normative validity, of the law. But one is not rationally compelled to have this attitude: The Pure Theory describes the positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed…. The Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional— namely conditioned by the presupposed basic norm. A comparison to religion, that Kelsen himself offered, might be helpful here. The normative structure of religion is very similar to that of law. It has the same logic: religious beliefs about what one ought to do ultimately derive from one’s beliefs about God’s commands. God’s commands, however, would only have normative validity for those who presuppose the basic norm of their respective religion, namely, that one ought to obey God’s commands. Thus the normativity of religion, like that of the law, rests on the presupposition of its basic norm. But in both cases, as, in fact, with any other normative system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions. Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason. Similarly, the normativity of law, presupposed by its basic norm, is optional: “An anarchist, for instance, who denied the validity of the hypothetical basic norm of positive law…. will view its positive regulation of human relationships… as mere power relations” Relativism, however, comes with a price. Consider this question: What is the content of the basic norm that one needs to presuppose in order to render positive law intelligible as a normative legal order? The simple answer is that what one presupposes here is precisely the normative validity of positive law, namely, the law that is actually practiced by a certain population. The validity of the basic norm, as we noted briefly earlier, is conditional on its “efficacy”. The content of the basic norm of any given legal system is determined by the actual practices that prevail in the relevant community. As Kelsen himself repeatedly argued, a successful revolution brings about a radical change in the content of the basic norm. Suppose, for example, that in a given legal system the basic norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d’etat takes place and a republican government is successfully installed. At this point, Kelsen admits, ‘one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government’ Has Kelsen just violated his own adherence to Hume’s injunction against deriving “ought” from an “is” here? One gets the clear impression that Kelsen was aware of a serious difficulty in his position. In both editions of the Pure Theory of Law, Kelsen toys with the idea that perhaps changes in the basic norms of municipal legal systems legally derive from the basic norm of public international law. It is a basic principle of international law that state sovereignty is determined by actual control over a territory/population. But this led Kelsen to the rather uncomfortable conclusion that there is only one basic norm in the entire world, namely, the basic norm of public international law. Be this as it may, the main worry lies elsewhere. The worry stems from the fact that it is very difficult, if not impossible, to maintain both a profound relativist and an anti- reductionist position with respect to a given normative domain. If you hold the view that the validity of a type of norms is entirely relative to a certain vantage point—in other words, if what is involved here is only the actual conduct, beliefs/presuppositions and attitudes of people—it becomes very difficult to detach the explanation of that normative validity from the facts that constitute the relevant point of view (namely, the facts about people’s actions, beliefs, attitudes, etc). This is basically what was meant earlier by the comment that Kelsen had no option but to admit that the validity of the basic norm is conditional on its efficacy. The normative relativism which is inherent in Kelsen’s conception forces him to ground the content of the basic norm in the social facts that constitute its content, namely, the facts about actions, beliefs, and attitudes actually entertained by the population in question. And this makes it very questionable that reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to provide a reductive explanation of the concept of legal validity in terms of some set of social facts, the facts that constitute the content of any given basic norm. (Which is precisely the kind of reduction H.L.A. Hart later offered in his account of the Rules of Recognition as social rules Kelsen’s problem here is not due to the fact that he was a relativist with respect to every normative system, like morality, religion etc.; it is not the scope of his relativism that is relevant to the question of reduction. The problem stems from the fact that Kelsen was quite right about the law. Legal validity is essentially relative to the social facts that constitute the content of the basic norm in each and every legal order. Notice that legal validity is always relative to a time and place. A law enacted by the California legislature only applies within the boundaries of the state of California, and it applies during a certain period of time, after its enactment and until a time when it is modified or repealed. And we can see why: because legal validity is determined by the content of the basic norm that is actually followed in a given society. The laws in UK, for example, are different from those in the US, because people (mostly judges and other officials) actually follow different rules, or basic norms, in Kelsen’s terminology, about what counts as law in their respective jurisdictions. Once Kelsen admits, as he does, that the content of a basic norm is fully determined by practice, it becomes very difficult to understand how the explication of legal validity he offers is non-reductive. 3. The Normativity of Law Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normativity consists in. The first and crucial point to realize is that for Kelsen the idea of normativity is tantamount to a genuine “ought”, as it were; it is a justified demand on practical deliberation. A certain content is regarded as normative by an agent if and only if the agent regards that content as a valid reason for action. As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the normativity of law can only be explained as one would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action (Raz 1979, 134–137; but cf. Paulson 2012). But then, the problem for Kelsen is how to explain the difference between the normativity of law and that of morality; if legal “ought” is a genuine “ought”, what makes a legal obligation distinct from a moral one? Kelsen’s answer is that the relevant “ought” is always relative to a given point of view. Each and every type of “ought”, be it religious, moral or legal, must presuppose a certain point of view, a point of view which is constituted by the basic norm of the relevant normative system. In other words, Kelsen’s conception of legal normativity turns out to be a form of Natural Law completely relativized to a certain point of view. However, in Kelsen’s theory the relevant point of view is distinctly a legal one, not some general conception of morality or Reason. That these two basic norms, or points of view, can come apart, is nicely demonstrated by Kelsen’s comment that “even an anarchist, if he were a professor of law, could describe positive law as a system of valid norms, without having to approve of this law” (PT2 218n). The anarchist does not endorse the legal point of view as one that reflects her own views about what is right and wrong. Anarchism is understood here precisely as a rejection of the normative validity of law; however, even the anarchist can make an argument about what the law in this or that context requires; and when she makes such an argument, she must presuppose the legal point of view, she must argue as if she endorses the basic norm of the relevant legal system. Joseph Raz has called these kinds of statements “detached normative statements”; the anarchist argues as if she endorses the basic norm, without actually endorsing it. Another example that Raz gave is this: suppose that at Catholic priest is an expert in Jewish Law; the priest can make various interpretative arguments about what Jewish law really requires in this or that context. In such a case, the priest must argue as if he endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not really endorse it, it does not reflect his own views about what is right and wrong So here is what emerges so far: the concept of normativity, the sense in which normative content is related to reasons for action, is the same across all normative domains. To regard something as normative is to regard it as justified, as a warranted requirement on practical deliberation. However, the difference resides in the difference in points of view. Each basic norm determines, as it were, a certain point of view. So it turns out that normativity (contra Kant) always consists of conditional imperatives: if, and only if, one endorses a certain normative point of view, determined by its basic norm, then the norms that follow from it are reason giving, so to speak. This enables Kelsen to maintain the same understanding of the nature of normativity as Natural Law’s conception, namely, normativity qua reasons for action, without having to conflate the normativity of morality with that of law. In other words, the difference between legal normativity and, say, moral normativity, is not a difference in normativity (viz, about the nature of normativity, per se), but only in the relevant vantage point that is determined by their different basic norms. What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, as it were. We can set aside the difficulties that such a view raises with respect to morality. Obviously, many philosophers would reject Kelsen’s view that moral reasons for action only apply to those who choose to endorse morality’s basic norm (whatever it may be). Even if Kelsen is quite wrong about this conditional nature of moral imperatives, he may be right about the law. What remains questionable, however, is whether Kelsen succeeds in providing a non-reductive explanation of legal normativity, given the fact that his account of legal validity turned out to be reductive after all. The trouble here is not simply the relativity to a point of view; the trouble resides in Kelsen’s failure to ground the choice of the relevant point of view in anything like Reason or reasons of any kind. By deliberately avoiding any explanation of what it is that might ground an agent’s choice of endorsing the legal point of view, or any given basic norm, Kelsen left the most pressing questions about the normativity of law unanswered. Instead of providing an explanation of what makes the presupposition of the legal point of view rational, or what makes it rational to regard the requirements of law as binding requirements, Kelsen invites us to stop asking.