A Procedural View of Law?

In the textual environment of the Pure Theory of Law, there is an apparently inorganic reflexion to be found. Whether or not this reflexion can be incorporated into the Kelsenian doctrine of law-application, may stand the test of the consistency, of the freedom from contradictions of the entire Kelsenian oeuvre. According to the said reflexion, in the course of an authentic interpretation, the choice is not necessarily made from the various alternatives unfolded by the cognitive interpretation. It is also possible that the individual norm thus found should be independent from the former.

And if the given decision obtains a force of law,^{5 6} this latter norm will become final in the legal order, too.

The dilemma is obvious. If we accept the basic doctrine of the Pure Theory of Law in the theory of gradation (i.e. the concept of individualization and concretization through the breakdown of the general norm), then the authentic interpretation will narrow down—unequivocally—to a category within the cognitive interpre-tation; the only task of authentic interpretation being the choice among the possible varieties unfolded by cognitive interpretation.

If we accept the possibility of choice from beyond these varieties, then this will not narrow the norm but rather extend it; such a choice will employ an external solution instead of the alternatives limited by the cognitive interpretation; it will thus violate the interpretative character of authentic interpretation. It rests,

"By way of authentic interpretation of a norm by the law-applying organ not only one of the possibilities may be realized that have been shown by the cognitive interpretation of the norm to be applied; but also a norm may be created which lies entirely outside the frame of the norm to be applied [...] as soon as the validity of this norm cannot be rescinded, as soon as this norm has gained Ihe force of a final judgment." KELSEN (1960), pp. 3 5 4 - 3 5 5 .

therefore, on a misunderstanding, since it declares that it sets aside the norm which it professes to be applying.^{5 7} On the other hand, if we focus in the theory of gradation on the dialectics of law-making and law-application, viz. when we only perceive the possibility of creation at any point in the normative process and its constitutive significance, then the cognitive interpretation will be reduced to a mere ideal-typical, descriptive category, accompanied by a volitive act, which, as Kelsen himself slates,^{5 8} will demar-cate the authentic interpretation from any other type of interpreta-tion. Putting it in another way, this means that the volitive contribution within the authentic interpretation shows a specifically constitutive aspect which, in its turn, provides the possibility that, eventually, even the contingency mentioned by Kelsen might ensue—under the guise of norm-application.

It is to be noticed that although in the text of the enlarged, second edition of the Pure Theory of Law the above reflexion may seem merely inconsequential, haphazard and even irrelevant, yet it is not quite alone in the Kelsenian oeuvre, though we suspect that the author did not wish to consider it in a manner consistent to its weight. As it is, in the American edition of the Pure Theory of Law, i.e. the General Theory of Law and State, after outlining his concept on law-application (included in the set of problems relating to the hierarchy of norms, where he also touched upon the issues of the judicial a c t of the applied norm, of the gap of law, and of the judge-made "general" norm), he unfolds his tenet as a

"conflict between the norms created at different levels". He cites his classic American source (which is also a citation): "Bishop Hoadly has said: 'Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to

Losano writes thus: "is based on an ambiguity", "does not apply" [LOSANO (1968), p. 531]. However, he too would force the analogy of cognitive process on normative decision-making. That is why he blamed Kelsen that while cognitive interpretation was also interpretation according to its structure, authentic interpreta-tion was only so according to its funcinterpreta-tion.

5 8 KELSEN (1960a). p. 351.

all intents and purposes, and not the person who first wrote or spoke them'; a fortiori, whoever hath an absolute authority not only to interpret the Law, but to say what the Law is, is truly the Law-giver."^{5 9} As it is, Gray, Kelsen's source, had made his conclusions in too simplistic, short-circuited a manner,^{6 0} and that is what evoked Kelsen's condemning criticism and the entire exposition supporting the latter. Meanwhile he fails to notice that he merely restates in a theoretical manner that which Bishop Hoadly had already stated.^{6 1}

Now Kelsen's problem is the following: the foundation of the validity through the superior norm presupposes that it cor-responds with the superior norm. However, the establishment of this correspondence (i.e. whether or not it exists) can be effected, with a legal relevance, only with a law-applying decision. All this, therefore, presupposes a determined process of a determined body, i.e. the formalized result of a formal proceeding: its constitutive contribution. Since, however, after the decision has become final by having gained a force of law, it can no longer be disputed whether the constitutive contribution involved by the act of law-application had expressed "real" and "actual" com-ponents in a formalized result, there will be no absolute guaran-tee as to the "reality" and "actuality" of the said correspon-dence.^{6 2} After the possibilities of appeal or legal remedies have

5 V GRAY (1909), p. 102.

6 0 "The courts put life into the dead words of the statute." Ibid, p. 125.

6 1 "It is difficult to understand why the words of a statute which, according to its meaning, is binding upon the courts should be dead, whereas the words of a judicial decision which, according to its meaning, is binding upon the parties should be living." KELSEN (1946). p. 154.

6 2 "The lower norm belongs, together with the higher norm, to the same legal order only insofar as the former corresponds to the latter. But, who shall decide [...]?

Only an organ that has to apply the higher norm can form such a decision. Just as the existence of a fact to which a legal norm attaches certain consequences can be ascertained only by an organ in a certain procedure (both determined by the legal order), Ihe question whether a lower norm corresponds to a higher norm can be