The Constitutive Character of Law-application

itself; it rather designates its place, its points of attachment within the juridical process. Nevertheless, in an indirect manner, it has staked out the conceivable understanding of law-applica-tion.

The most important conclusion that can be drawn from the gradation theory of law can be summarized in that law-applica-tion—in contrast to the traditional meaning suggested by the term jurisdictio—does not declare but constitutes the law. Although Kelsen fails to give a general definition to enable the production of theoretical principle, yet his standpoint is unequivocal: law-application is every bit of a "constitutive character", and the body entrusted with it has a "constitutive function". The contribution of law-application manifests itself in various ways in the different stages of the process.

The first step is the identification of the existence of some general norm, as a valid norm of the law.^{4 1} In Kelsen's view this serves a dual purpose: a valid, applicable norm is the natural precondition for law-application; at the same lime—on a higher level—that would create the legal relevance, viz. that in the concrete case a legal situation should evolve.^{4 2}

If the identification and choice of the norm have an equally constitutive character, then this also applies to the legal definition of facts that constitute a case. Kelsen explains this, second, grade of constitutivity in a protracted treatment, not devoid of certain contradictions. Accordingly, the question would immediately arise, whether it is an indispensable element of the legal order that, when a fact becomes qualified under a normative aspect, it will (or

4 1 KELSEN (1960a), p. 243.

4 2 "Only by the ascertainment implied in the judicial decision that a general norm, to be applied by the court, is valid |...] dees the norm become applicable in the concrete case, and thereby a legal situation is created for this case which did not exist before the decision." KELSEN (1960), p. 238.

should) also designate both the agency and its procedure exclusively empowered to qualify the given fact as a fact in law?

Despite Kelsen's positive answer^{4 3} it seems that this is in fact a practical question which could freely be regulated in the course of legislation, merely because in the absence of a regulation (or some kind of procedural formalization) a fact could be declared to be a fact in law by anybody, anytime, and so the said person could rank as an official agent applying the law. Incidentally, Kelsen himself had recognized this, although in a different period and different context.^{4 4} Accordingly, some degree of formalization of the procedure seems, in general, necessary, but it will in every case be the legislator who will decide on its terms, degree, and manner under practical considerations. In itself, it seems equally convincing when Kelsen considers the official cognizance of a fact as the only means towards the establishment of a fact in law;^{4 5} so much so that in his reconstruction he states this to be an element of the norm attaching a sanction to the fact.^{4 6}

"If a legal order attaches a certain consequence to a certain fact as a condition, then this order must also determine the organ who and the procedure by which the existence of the conditioning fact is to be ascertained in a concrete case." Ibid., p. 239.

4 4 In his posthumous work he writes: "1. Every man should keep one's promise made to another. 2. Maier has to keep his promise lo pay 1000 to Schulz." In connection wilh these norms, "|t]he validity of the second norm is based on the validity of the first norm, no matter who had enacted it. For this norm does not determine who has the power to enact the second norm. Everybody is empowered to enact the second norm." KELSEN (1979), pp. 214-215.

4 5 "[E]ven the ascertainment of the facts thai a delict had been committed represents an entirely constitutive function of the court [...]. It is only by this ascertainment that the fact reaches the realm of law; only then does a natural fact become a legal fact—is it created as a legal fact." KELSEN (1960), p. 239.

4 6 "This is so because the legal rule does not say: 'If a certain individual has committed murder, then a punishment ought to be imposed upon him.' The legal rule says: 'If the authorized court in a procedure determined by the legal order has ascertained, with the force of law, that a certain individual has committed a murder, then the court ought to impose a punishment upon that individual." Ibid., p. 240.

At the same time we must immediately put a question mark behind the statement that here, essentially, and in every case, we are dealing with the act of a natural fact's being transformed into a normative fact. For if we take into consideration all the circum-stances and situations which may bring into dispute the officially established fact being identical with the actual fact, moreover when we recall the finalizing effect of the legal force of a judgement, then it will become immediately apparent: in the formalized proceedings the actual fact is replaced by the allegation of the fact—i.e. the formal and official declaration of its being the case.''⁷ This, however, both in principle and according to its actual structure, contradicts the claim according to which the official establishment of fact, although it is "not a way of taking cognition of the law, but of creating it", yet it shows a parallel with the cognition of natural facts.^{4 8}

The third domain in which the constitutive character of law-application manifests itself is the creation of the individual norm by filling the framework which the general norm determines, in a discretionary manner. As Kelsen himself has stated with increasing force since the 1930s: the legislatory determination is never an exhaustive one. Accordingly, the recourse to discretion is inevitable with regard to the components, thus, the applicable law is never merely a definition but also involves a framework freely to be filled in.⁴' At a later dale, Kelsen himself—speaking about legal

inler-"ln juristic thinking the ascertainment of the fact by the competent authority replaces the fact that in nonjuristic thinking is the condition for the coercive act.

Only this ascertainment is the conditioning 'fact' [...]." Ibidem.

4 8 KELSEN (1960a), p. 247.

4 9 "This definition, however, can never be complete. The higher-grade norm cannot bind the act by which it is executed, in every direction. There must always remain a space for free weighing, with a wider or narrower space for manoeuvring, so that the higher-grade norm, in relation to the act executing it (...) has always the character of a framework to be filled in by the former." KELSEN (1934), p. 91.

Further: "But even in the case in which the content of the individual legal norm to be created by the court is predetermined by a positive general legal norm, a certain

pretauon—would specifically state: the filling of the framework within the legal limits drawn by the applicable general norm is entirely free. At the same time the said freedom is not identical with free weighing of pros and cons, nor is it a discretionary power permitting prevention of an action, nor is it empowered to permit or deny something; it simply means that within the limits of a basic, existing regulation, the details not affected by the regulation can be concretized in an unbound manner. (Concretization in this case means at the same time a legally valid regulation, i.e. a de-termination.)