APPENDIX I: KELSEN’S THEORY OF LAW-APPLICATION:
3.1. Theory of Gradation
The theory of gradation, projected onto the Kelsenian understanding of law-application, yields two consequences.
The first is the relative unity of the processes of norm-making and norm-application.2' This means ab ovo that the unfolding of the norm is not a logical necessity or an unequivocal process, but
"The principle [...] (hat we apply when describing a normative order of human behaviour, may be called imputation [...]. 'Imputation' means a normative relation." Ibid., pp. 76 and 90.
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"Application of law is at the same time creation of law. These two concepts are not in absolute opposition to each other [...]. It is not quite correct to distinguish between law-creating and law-applying acts. Because apart from the borderline cases (...) between which the legal process takes place, every legal act is at the same time the application of a higher norm and the creation of a lower norm."
Ibid., p. 234.
rather a creative contribution: i.e. one admitting of several alterna-tives and lifting these to the normative level; it is merely one grade in a multi-graded process. At the same time it must be seen that when we speak of law-making and law-application in the conven-tional and historically approved manner (by treating these as different activities of bodies fulfilling different functions) and, subsequently, we explain law-application as law-making, then we will have differing concepts overlapping each other. Namely, analytical concepts will be projected onto descriptive ones.3 0 The result of the analysis will merely be restricted to some essential aspect of the given process (an aspect which may be common to another process as well and thus not warranting the differentiation under this aspect); nevertheless, that result cannot bring into dispute the demarcation of law-making and law-application as socially institutionalized functions and activities, thus it will not vitiate the grounds of such demarcation.
The other Kelsenian conclusion relates to the hierarchic nature of the gradual construction of law and of the legal order. According to this tenet the entire normative process is displayed between two extreme points; these extreme poles being the foundation of the normative order's validity by means of a hypothetical basic norm [hypothetische Grundnorm] and the causal realization of the consequence attached to the given behaviour in the normative order. Within these two extreme points, the normative process is nothing but a gradually narrowing normative breakdown in which an abstract-general enactment becomes gradually and continually
Kelsen himself is aware of this. At least in describing the philosophy of the division of powers, he states: "The common trichotomy [of the legislative function and of the executive and the judicial functions) is thus at bottom a dichotomy, the fundamental distinction of legis latio and legis executio." (Or, in the utle:
"Legislation and Execution".) KELSEN (1946), Part Two, par. G.b., pp. 255 256.
With that, he does not dispute the validity of trichotomy elsewhere, inasmuch as they are "in the course of the shaping of positive law, particularly outstanding or otherwise politically important resting points of the process of law-making".
KELSEN (1926), § 51, p. 46.
concretized until it is reconstrued in the casual event." According-ly, while the first mentioned conclusion stresses the presence of creation in the process of application, the second conclusion places the implementing (applicative) creation in a broader context, designating its place in the process of the individualizing break-down of the general legal postulate.
Although Kelsen designates the normative subordination of the
"lower norm" as a metaphorical term, yet he declares the legal order built along the mediation of validity to be a hierarchical system.3 2 In the said hierarchical system, law-application is nothing more than the creation of an individual norm through the implementation of a general legal norm. Kelsen regards the application of the general legal norm as being of paramount impor-tance—brooking no exception—so much so that he even presumes the existence of a general legal norm behind a decision based on an ambiguous provision of law.3 3 He professes the same presump-tion whenever a case-related judicial decision is used as a preced-ent,3 4 in fact behind any decision using the fiction of "a general.
"[T]he process thai begins wilh the establishment of the Constitution [...] and leads to the execution of the sanction (...) is a process of increasing individualization and concretization." KELSEN (1960), p. 237.
3 2 "The relationship between the norm that regulates the creation of another norm and the norm created in conformity with the former can be metaphorically presented as a relationship of super- and subordination. The norm which regulates the creation of another norm is the higher, the norm created in confornuty wilh the former is the lower one. The legal order is not a system of coordinated norms of equal level, but a hierarchy of different levels of legal norms." Ibid., p. 221.
3 3 Where "the interpretation implicit in the decision assumes the character of a general norm". Ibid., p. 250.
3 4 "The judicial decision of a concrete case gives direction to the decision of similar cases in that the individual norm which the judicial decision represents is generalized. This generalization, thai is, the formulation of the general norm, may be done by the court that created Ihe precedent; but it can also be left to other courts bound by the precedential decision." Ibidem.
even though not a positive, norm of material law",3 5 whenever such a decision declares not a dismissing (negative) sentence but—having the necessary powers thereto—deals with the disputes issue at its discretion, on its merits.3 6
Thus, the theory of gradation outlines on the one hand a pyramid standing on its fool, since the entire legal process is built on a single hypothetical basic norm. On the other hand, it also shows another pyramid placed on its peak, superimposed on the former, since in the course of the final individual acts of execution the general-abstract validity, expressed by the basic norm, receives its concrete shape. At the same time, we should keep in mind that the graded building and its hierarchical structure have a normative character. In other words, the structure is normative not just because it is composed of norms, but also because the very structuring principle rests on normative expectations.
Nevertheless, if we take seriously Kelsen's undertaking3 7 to answer the question, "What is law and of what kind is it?"—then we must at once voice our reservations. To wit: it is one question to consider the definite character and direction of structuring as a desirable issue, and another question to follow this tenet in the practice of creating those individual norms. This difference is all the more important since, as it will be revealed later, whatever our opinion is on whether an enactment has been complied with or not, our judgment must rest "on a specific, more precisely normative,
"[...] a general, even though not a positive, norm of material law". Ibid., p. 244.
3 6 "It is usually said that the court is authorized to function as a legislator. This is not quite correct if by 'legislating' is meant the creation of genera] legal norms.
For the court is only authorized to create an individual norm, valid for the single, present case. But the court creates this individual norm by applying a general norm which the court considers 'juste' or desirable—a norm which the positive legislator failed to create. The court-created individual norm is justifiable only as application of such a not positive, general norm." Ibidem.
3 7 KELSEN (1934), p. 1.
interpretation".3 8 As to the normative interpretation, in the follow-ing we shall see that it cannot stand alone: it can only exist in a normative context. In other words, only an authority proceeding within its jurisdiction and powers can constitute the result of normative interpretation. Moreover, we must state as a matter of principle that in the graded construction the relation between norms of various levels—i.e. conditioning and conditioned ones—is not necessarily a hierarchical relation. It can also be a relation of interrelated priorities, in which merely the sequence, the origin and the foundation of validity are manifested.3 9
Similarly, one might raise the question: Is it warranted or at all necessary to use the gradation theory in a dual way in the Kel-senian oeuvre? Is it necessary that the dialectic interrelation of law-application and law-making should be explained in the official hierarchy of the sources of law going from the top downwards? Is it inevitable that the theory of gradation should become the only possible theoretical model for the foundation of validity? Putting it another way: Is the hierarchical mediation and the vertical deduc-tion of validity the only way by which the unity of legal order can be demonstrated? For Kelsen, his own choice of a natural paradigm might have appeared obvious. Nevertheless, it has resulted in the survival of such models of thought which had become worn out even by him. As it is, a chain of validity based on a hypothetical basic norm which would deduce the validity from an external and superior, yet all-embracing source is, ultimately, a transcendental presumption. It is nothing but "a secularized form of natural-law concepts based on religious, respectively theological consider-ations", which illustrates the law as the aggregate of hierarchically super- and sub-ordinated determinations—although, in reality, in the case of a state-organized legal system it is rather "a system, without a centre and without a peak".4 0
3 8 KELSEN (1960a), p. 4.
3 9 KRAWIETZ (1984), p. 266.
3.2. The Constitutive Character of Law-application