Kelsen on Validity (Once More)

• DOI: http://doi.org/10.1111/raju.12135
• Date: 01 September 2016
• Published date: 01 September 2016
• Author: Riccardo Guastini

NOTES • DISCUSSIONS • BOOK REVIEWS

Kelsen on Validity (Once More)

RICCARDO GUASTINI*

1. Kelsen’s Theory of Validity in a Nutshell

Kelsen’s theory of validity has been explored extensively in the literature—mostly

in connection with his theory of the basic norm. Is there any room left for further

discussion? My guess is that, after all, there is. In particular, it seems to me that the

Kelsenian equivalence between validity, existence, and binding force requires fur-

ther analysis.

1

Kelsen’s theory of validity includes:

(1) a definition of validity as well as

(2) a thesis concerning the criteria of validity, that is, the truth conditions of

sentences stating the validity or invalidity of a given norm (“Norm N is

valid/invalid”).

As to the definition (1), according to Kelsen, validity means at the same time:

(1.i) existence (validity being the “specific existence of a norm”), as well as

(1.ii) bindingness, obligatoriness, that is, duty of obedience.

A single quotation will suffice here:

By “validity” we mean the specific existence of norms. To say that a norm is valid, is to say

that we assume its existence or—what amounts to the same thing—we assume that it has

“binding force” for those whose behavior it regulates. (Kelsen 1945, 30)

In other words, according to this view, there is conceptual identity between the

validity, the existence, and the binding force of norms. As a result, it seems that the

three following sentences have one and the same meaning-content:

* I am highly indebted to Stanley Paulson and Mike Karlsson, who read and discussed a first

version of thispaper.

1

Such terms are equivalent in the sense thatany sentence stating the validity of a normcan be

translatedwithout loss of meaning into a sentence statingeither the existence or the bindingness

of the norm in question.

V

C2016 The Author. Ratio JurisV

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Ratio Juris. Vol. 29 No. 3 September 2016 (402–409)