Brugmans: Beyond the Is-Ought Dichotomy, A critical analysis of Kelsen's
view on norms and values
Kelsen on norms and values
Contributor: Edith
Brugmans
Contents Why
Kelsen's (1881-1973) views on Good, Evil and Freedom are still important to-day.
Kelsen's
concept of normativityFirst
separation of 'is' from 'ought'Second
separation of 'is' from 'ought'
Jonas
versus Kelsen: Jonas' concept of normativity
Conclusion:
Kelsen's Clarification of our Conceptions of Freedom
Why Kelsen's (1881-1973) views on Good,
Evil and Freedom are still important to-day.
In its quest for the knowledge of good and evil our contemporary culture shows
signs of a fundamental crisis. On the one hand, we possess good results from the
past. Many successful developments of modern science, economy, law, technology
and politics contribute to our well-being today. On the other hand, we become
aware of negative aspects which seem to encroach upon our life-style, or even
seem to threaten the survival of mankind.
Our moral conceptions of freedom reflect this state of affairs. Some hold that
freedom is the individual's right to choose his own norms and values; that
therefore any choice whatever deserves respect if only the choice is made
rationally and voluntary. According to others freedom is the personal capacity
to respond to absolute, objective values; that therefore only a choice
manifesting that responsibility deserves respect.
The meaning of these two conceptions of freedom can be clarified philosophically
by discussing two relevant contemporary theories on the objectivity of values.
More specifically, I want to draw attention to the views of Kelsen and Jonas on
'the is-ought dichotomy'.
Kelsen's
concept of normativity
Hans Kelsen (1881-1973) is mostly known as the author of the Pure
Theory of Law . This theory is presented by him as a scientific theory of legal
norms, i.e. as the result of a reflection in which the modern criteria for
science are complied with, and which has the normativity of legal norms as its
subject.
However, Kelsen's ambitions reach beyond legal theory. He tries to arrive at a
scientific conception of normativity as such. His General Theory of Norms,
posthumously published on the basis of manuscripts, may be seen as the result of
that project .
I think, however, that Kelsen's project for a science of norms is morally
questionable. Due to his scientific approach, morality is reduced to
arbitrariness and indifference. The rational idea of normativity thus implies a
certain unreasonableness of morality. As a consequence, Kelsen's analysis leads
to the first conception of freedom mentioned above: freedom as the individual's
right to choose anything whatever. This thesis will be clarified in the next
paragraphs by discussing Kelsen's use of the 'is-ought dichotomy'.
First separation of 'is' from 'ought'
The logical separation of 'is' from 'ought', of facts from values, of
causal relations from normative connections, is the most important modern
criterium for science.
The first requirement of this criterium is that norms and values are not deduced
from facts. Kelsen tries to meet this requirement by developing an argument that
can be seen as one example of the familiar way in which moral objectivism is
criticized. Therefore, I will discuss this argument rather briefly .
Very often Kelsen simply writes as if the modern scientific worldview is true,
that is, as if we know for certain that reality contains nothing but facts and
regular conjunctions of facts. But Kelsen also admits that this worldview is not
shared by those who believe in objective, naturally given, supreme values; that
is, by those who believe in natural law. According to them, an absolute
goodness, rightness, or justice, is given in principle. Those principal values
ought to be respected as the source and foundation of the norms posited by human
beings; only then those norms are just and therefore objectively valid. (The
most well-known development of this idea is of course Plato's theory of the idea
of the good.)
To this thesis, Kelsen objects that experience shows that even if there are such
objective and absolute values, men clearly do not know them, nor act according
to them. Men dispute about norms, men act unjustly, men do wrong. As he puts it:
"But on grounds of experience it will have to be accepted, that insight into the
[consequences] prescribed by the order of natural law, and that knowledge of the
'right' or 'just' conduct is lacking in men, or at least in the majority of
men..." .
Now the natural law-believer may come up with the solution Plato already thought
of. It may be true that most men lack insight in the absolute values, but that
does not mean that this insight is impossible in principle. There even may be in
fact some men, or one person, who sees clearly what true justice or real
goodness in itself is and demands for human life. Then only those men, or that
person, ought to rule. For Plato, only the philosopher ought to be king.
But Kelsen points out that this solution means the authorization of a monarchy
or aristocracy, whereas the claimed foundation of that authority is totally
untestable for those submitted to it. For them, the question of the foundation
of the norms posited by those in command, is not answered by referring to the
natural good or just. For them, the foundation has to be found elsewhere.
Here Kelsen introduces the concept of the basic norm . Its status is that of a
presupposition for a certain interpretation: to assume the basic norm, means to
regard norms as objectively valid. Its function is to establish the validity of
norms, or, to validate the normativity of norms as its objective meaning. Or, in
terms of the author of norms, its function is to interprete the person who
commands as authorized, legitimate.
However, Kelsen adds that basic norm does not have to be presupposed. One may or
may not assume that norms are objectively valid. And this addition shows that
the concept is morally problematic, even morally unreasonable. For first of all,
the basic norm in itself offers no reason for the objective validity of norms.
Its meaning is nothing but this: if a basic norm is presupposed, then norms are
seen as objectively binding. Secondly, there is no reason at all to assume the
basic norm. It is a matter of pure choice for the individual to assume or not
the basic norm. Those who do not presuppose the basic norm, regard norms as acts
of the will that are enforced with more or less psychic or physical coercion.
According to Kelsen's analysis then, the validity of norms is a matter of
arbitrary choice for the majority of men. Moreover, every reality except human
acts, is a matter of complete indifference to them.
But eventually Kelsen's science of norms leads to indifference towards human
acts as well, as will be shown next.
Second separation of 'is' from 'ought'
The 'is-ought' separation criterium not only requires that norms are
not deduced from facts. It also requires that facts are not deduced from norms.
The way in which Kelsen tries to meet this condition, can be explained by
discussing his criticism of common language.
According to Kelsen the usual expressions "something ought to be, you ought to
do this" lead to the idea that norms point to actual behaviour, that norms
intend that a particular act takes place and that norms motivate behaviour.
Also, one usually speaks about norms as if they create worthiness as a real
attribute of persons. For example, the norm 'thiefs ought to be blamed' is
expressed as 'thiefs are blameworthy', and this expression is understood as if
blameworthiness is an objective attribute of the thief. Common language thus
leads to the idea that norms imply facts, and lend values to persons and things.
Of course, this idea then brings along a certain variation of moral objectivism.
However, this idea is a misconception according to Kelsen . His arguments to
show this start with the truism that not the norms intend or will something, but
the person who states the norm. What is it then, that this person intends? At
first, Kelsen holds that the norm-stating person intends a particular fact,
namely behaviour according to the norm and such that it is motivated by the idea
of the norm. It follows then that a reaction is to be distinguished as
norm-conforming behaviour from other reactions, if it agrees with the meaning of
the act of the will of the person stating the norm, and if it is motivated by
the intention to reach that agreement.
But the motivating role of the 'idea of a norm' is analyzed further by Kelsen,
as follows. It can not be the case that the norm itself motivates, because a
norm has no will, intends not. Neither can it be that the will of the commander
motivates the behaviour of the addressed person, because that behaviour can only
be motivated by the will of the addressed person himself. Therefore, the person
stating a norm must intend that the other wants that behaviour himself, that he
himself wills it as that which he ought to do . And only then his behaviour is
motivated by acknowledgement of the norm.
This means that the intended acknowledgement of the norm can not be controlled
by the one who commands. But neither is the actual behaviour a guarantee that
the norm ruling this behaviour is acknowledged by the actor. Kelsen illustrates
this point as follows . Take an officer commanding soldiers to shoot
war-prisoners. It is possible that the officer utters this command while he
wants that the soldiers ought not to shoot. In this case the will of the officer
is ambivalent: his statement of the norm is no guarantee that he himself
recognizes the norm. Moreover, it is possible that the soldiers obey out of fear
for retaliation, while they disapprove of the command. In this case they act
according to the norm without acknowledging it. From their standpoint, their
behaviour can not be interpreted as a norm-observing act. In fact, all kinds of
motives other than 'the idea of the norm' may come into play.
However, the personal rejection of, or disinterest in, a norm does not hinder
others to understand and intend acts of will in a normative sense. It is quite
possible that a person is held responsible for what he does according to norms
that he himself does not agree to. But in such a case it is not possible to
determine who is absolutely right: such judgement presupposes knowledge of an
absolute norm, and, as we have seen, that presupposition can not be made
rationally according to Kelsen. One can merely state that as long as in general
certain norms are confirmed in value-judgements like approvals, disapprovals,
rewards and punishments, those norms are apparently seen as objectively valid.
The possibility that someone is judged by norms he himself does not affirm,
remains open . Now, if the personal acknowledgement of a norm is not necessary
in order to judge behaviour according to that norm, we have to amend Kelsen's
initial theses that the commanding person intends norm-motivated normconformity
and that following a norm requires being motivated by the idea of that norm. In
fact, all that matters is a correspondence between norms and acts. Indeed,
Kelsen draws this conclusion himself. A further problem arises, though. How is
norm-conform behaviour to be understood if not in the common sense? The usual
understanding, as if conformity were a real attribute of the factual act, would
lead to the idea that the dichotomy between is and ought is bridged in actual
fact. And this idea is scientifically unacceptable according to Kelsen.
At this point Kelsen introduces the concept of the modally indifferent
substratum . Normconform behaviour is actual behaviour of which the modally
indifferent substratum is identical to, is similar to, the modally indifferent
substratum of the behaviour that is stated in the norm as that which ought. In
the case of an offense, the two substrata are not identical. Kelsen gives the
following example. The norm: 'human beings ought not to lie' is offended when in
fact a person A lies. That is: in this case the modally indifferent substratum
"person A lying" is not identical to the modally indifferent substratum 'persons
not lie' of the norm 'human beings ought not to lie' .
Clearly, Kelsen introduces this concept to denote an act independent of the
normative or actual mode in which an act can be represented. The concept serves
to make the relation between norms and facts intelligible without comparing 'is'
and 'ought'; these are, following the dichotomy, uncomparable.
The concept then also serves to avoid the common misconception that
value-judgments express real attributes of acts. One calls an act 'just',
'right', when it harmonizes with a norm. One talks as if factual acts
incorporate the values of rightness and justice. Against this misconception, the
concept of the modally indifferent substratum enables a rational account of
value-judgements. Namely: a value-judgement 'act x is right' is the statement
that the modally indifferent substratum of the factual act x is identical to the
modally indifferent substratum of the act x stated in the norm. A
value-judgement then is of the same order as any judgement stating that one
object is identical to an other object; a value is this identity between
substrata of 'ought' and 'is'.
What are the consequences of this theory? First, normativity is reduced to
the factual relation between two wills. Second, it makes intelligible Kelsen's
thesis that values are constituted by norms and not the other way around, like
the natural law theory and common language suggest. If values are nothing but
the material identity between norms and factual behaviour, then indeed the
existence of norms is presupposed. Third, from Kelsen's conception of values, it
follows that the whole range of moral meanings is reduced to only one meaning,
namely: similarity. Moral qualities like braveness, carefulness, justice, love,
cowardice, negligence, malice etc. are all reduced to the one attribute of
material (non)similarity. The spectre of virtues then is also reduced to one
type of action: arbitrary normconform behaviour. Now we can also understand why
Kelsen emphasizes that norms do not regard the whole life of a person, but only
some of his acts.
The most radical consequence of Kelsen's theory, however, is that it seems to
lead to moral indifference. Following Kelsen, the interest of those who propose
norms, and of those who react to norms, can be understood only as an interest in
sorting out acts, in classifying factual behaviour according to the criterium of
being similar or not to contents of wills. But is it possible to see this kind
of similarity as a moral value? I think not. Taking side with common sense, I
think that moral values imply the belief in real valuable differences: they
imply the belief that things really are made better or worse by human acts.
According to Kelsen's theory, the idea of a good, happy life and a just,
valuable society, as a teleological reality intended by men's moral and legal
behaviour, is an illusion. The rationality won by giving up this illusion,
however, degenerates into indifference to good and evil as real qualities of our
life.
Jonas versus Kelsen: Jonas' concept of normativity
The discussion of Kelsen's science of norms showed the arguments for
and the consequences of giving up the idea of goodness as the origin or end for
our norms. I argued that moral arbitrariness and indifference result from
Kelsen's theory. Precisely these two characteristics are condemned by Hans
Jonas.
Jonas opens his "Das Prinzip Verantwortung" with the statement that since we
technically can destroy ourselves and maybe all life on earth, the time has come
to recognize the objective value of the human existence and of life itself .
Against the modern idea that science requires the separation of facts from
values, Jonas argues that the constitution of being itself can be seen as the
normative foundation for that recognition.
What makes the moral difference, what constitutes the difference between moral
interest and moral indifference, is the insight that being itself is not
indifferent to itself, that being affirms itself continuously against not-being.
According to Jonas, natural life shows this quite clearly. Activities like
animal behaviour, and organic processes like digestion, betray that teleology is
at home in nature. From that we can learn that being is interested, at least in
itself. The interest of being means that there is at least one fundamental value
as a good in itself, which is objectively, with being itself, given to men. That
fundamental objective value is the value of being itself: it means that being is
absolutely better than non-being .
However, it is not till this value is acknowledged by humans that the
normativity of being becomes realized morally. The human acknowledgment requires
that a person takes the interest of being upon himself, that he knows himself to
be responsible for being. Responsibility, then, is the human moral answer to the
normative condition of being. Jonas illustrates his thesis with the example of
the newborn child. Here, the mere breathing of the baby cries out an ought to
the others: 'you ought to accept me'. Here, the being of a tiny little existent
contains immanently and understandably an ought for others: here the 'ought' is
really existent . This example also shows that Jonas does not mean by
responsibility 'following nature', or 'respect for nature in all its organic
processes'. He does not plead for some naturalistic ethics, but for a normative
ontology. Being itself contains the good in itself. But 'being' develops, it
stretches in time, it is present as the history of becoming and passing away, it
is in the fugitive and vulnerable life. Human life is prior to all other forms
of life, since it is only there that responsibility can take place. Therefore,
responsibility as the moral answer to the goodness of being is first of all the
care for human life. The newborn child, simply be being there, manifests the
fragility of the good of being and thus presents responsibility to the good of
being as the first human duty.
Jonas lays great emphasis on the political implications of this ethics of
responsibility. He argues that only those who understand the first commandment
of being itself ought to rule. And so Jonas ends with the kind of natural law
theory that is the target of Kelsen's criticisms.
Conclusion: Kelsen's Clarification of our Conceptions of Freedom
Although our discussion of Kelsen's theory has been technical and our
reference to Jonas' theory very brief, we may conclude that the two views on the
is-ought question involve the two conceptions of freedom mentioned in the
introduction.
Kelsen's acceptance of the modern scientific criterium requiring the separation
of facts and values eventually leads to a conception of normativity in which
norms and values have no ontological justifying foundation. The upshot of this
theory is that norm-stating and norm-conforming behaviour are utterly
value-less. There is no ontological reason to do or command rather one thing
than something else, and whatever one does in obeying or disobeying commands, it
does not make life really better or worse. In this view, freedom can mean
nothing but the fact of making arbitrary choices by which no valuable
differences are realized. Thus moral indifference results.
That attitude is the object of Jonas' critique. He proposes a normative
ontology, stating that being itself constitutes an absolute good. In that view,
freedom must mean a fundamental responsibility for the good that is and ought to
be.
Our discussion has shown some of the ontological and epistemological views
underlying the two contemporary conceptions of freedom. And we may conclude that
if we really care about the world we live in and if we recognize our own
existential condition as being already interested in the absolute good, then we
have no choice but to be responsible.