Any correct assessment of Hans Kelsen's conception of Ought must take into account, first, that Kelsen's theory evolved over some 60 years which saw several major changes of its fundamentals; and second, that the Pure Theory must basically be understood as a meta-theory of institutionalised legal science. With these provisos, Kelsen's explanation of the Ought oscillates between two extremes: at one extreme, the legal Ought is just a formal semantic marker delimiting the realm of the law; at the other, the (...) legal Ought might be conceived of as 'depersonalised will'. Kelsen's most profound and fertile explanation, however, identifies the legal norm with the normative judgment of legal science, while the Ought plays the role of a category (in a Kantian sense) vesting the judgment with normative force. (shrink)

Hans Kelsen's Pure Theory of Law is the most prominent example of legal normativism. This text traces its origins and its genesis. In philosophy, normativism started with Hume's distinction between Is- and Ought-propositions. Kant distinguished practical from theoretical judgments, while resting even the latter on normativity. Following him, Lotze and the Baden neo-Kantians instrumentalized normativism to secure a sphere of knowledge which is not subject to the natural sciences. Even in his first major text, Kelsen claims that law is solely (...) a matter of Ought or normativity. In the second phase of his writings, he places himself into the neo-Kantian tradition, holding legal norms to be Ought-judgments of legal science. In the third phase, he advocates a barely coherent naive normative realism. In the fourth phase, he supplements the realist view with a strict will-theory of norms, coupled with set-pieces from linguistic philosophy; classical normativism is more or less dismantled. (shrink)

In Kelsen's formalist and reductionist theory of law, the concepts of `authority' and `competence' may be explained exclusively in terms of those norms on which the validity of other legal norms or of legal acts is dependent. Kelsen describes the nature of these norms in different ways; at least three different conceptions can be distinguished. A rational reconstruction of the most plausible of these conceptions will understand sentences expressing such `norms of competence' either to state truth conditions for normative sentences (...) of a lower level or to state criteria for an act to be a legal act. In both functions, norms of competence regulate the creation of normative facts. (shrink)

In Kelsen's formalist and reductionisttheory of law, the concepts of `authority' and`competence' may be explained exclusively in termsof those norms on which the validity of other legalnorms or of legal acts is dependent. Kelsen describesthe nature of these norms in different ways; at leastthree different conceptions can be distinguished. Arational reconstruction of the most plausible of theseconceptions will understand sentences expressing such`norms of competence' either to state truthconditions for normative sentences of a lower level orto state criteria for an act (...) to be a legal act. Inboth functions, norms of competence regulate thecreation of normative facts. (shrink)

Kelsen's theory of legal norms can be assessed adequately only if his writings are assigned to different phases. Contrary to Stanley L. Paulson's view, there is a radical break in the genesis of the theory around 1940, when Kelsen abandons the specific neo-Kantian thesis that the general legal norm is identical with the hypothetical judgment of legal science in favour of a rather naïve conception, according to which the judgment of legal science simply reproduces the pre-existing legal norm on a (...) descriptive level. By reading this simple correspondence theory of truth of the later period into Kelsen's writings of the twenties, Paulson misses the central thesis of Kelsen's neo-Kantianism. (shrink)

John Searle’s conception of institutional facts figures centrally in his latest works. It is defective for several reasons: (1) Searle’s argument for philosophical realism is inconsistent. (2) Searle’s conceptions of consciousness and collective intentionality are problematic. (3) The notion of normativity is indispensable in Searle’s system, but cannot be accounted for and makes wide parts of his theory superfluous. (4) It is not clear what entities might be regarded as institutional facts. These problems have a common source: The philosophical basis (...) of Searle’s theory, his combination of realism and physicalist monism, clashes with his thesis that both the 'first-person-ontology' and normativity are irreducible. (shrink)

John Searle’s conception of institutional facts figures centrally in his latest works. It is defective for several reasons: (1) Searle’s argument for philosophical realism is inconsistent. (2) Searle’s conceptions of consciousness and collective intentionality are problematic. (3) The notion of normativity is indispensable in Searle’s system, but cannot be accounted for and makes wide parts of his theory superfluous. (4) It is not clear what entities might be regarded as institutional facts. These problems have a common source: The philosophical basis (...) of Searle’s theory, his combination of realism and physicalist monism, clashes with his thesis that both the 'first-person-ontology' and normativity are irreducible. (shrink)