Law as “being” and law as “ought to be”
So far, the blog series has referred to law as “rule” and law as “behavior.” In other words, these mean law as “ought to be” and law as “being.” For example, Kelsen arguments have to do with the distinction between a Pure Theory and the character law has as a positive science in the sense of science of realities.
The Pure Theory of Law is only juridical (legal) logic and that is why the dependence between validity and efficacy maintained by Kelsen is the same kind of dependence found in concepts of being such as horse or unicorn. The concepts of “horse” or “unicorn” are worthy or not for the zoologist because in the first case it exists in reality and in the second case it does not. Kelsen arguments have to do with the distinction between a Pure Theory and the character law has as a positive science in the sense of science of realities.
Kelsen points out two different limitations here. The first, formal juridical logic. The second, transcendental juridical logic. The formal juridical logic is an exercise of the negative criterion of juridical truth. If the legal order consists of a proposition that states “you ought to do what you wish”, making logically impossible any contradiction between the norms and the conducts, the only possible contradiction could be within the same normative system in that it targets an individuation that will not be feasible. In turn, the transcendental juridical logic refers to the object, which is the conduct: it means the intellectual act is not worthy as knowledge if it is not corresponded by an object. Therefore, there is no room for logical possibility (or impossibility) because an object and its mode of existence guide the issue.
In the logic of being, the gnoseological hypothesis is different because the subject that comprehends the object cannot be that object himself: in the act of knowledge the subject is always opposed to the object and it is not and cannot be the object. On the contrary, the logic of the ought to be and in a science like law, the object of knowledge (whether a norm or human behavior) refers too to a subject. That is to say, a subject who acts (or omits to act) but now a cognizant subject.
Kelsen maintains that the problem with positivity of law is that it seems at the same time as being and ought to be but these categories exclude themselves reciprocally. The first part of the statement does not refer to the two logical categories defined as two systems of logic that exclude reciprocally, but the expression “being” refers to something that has actual existence: an existence that has to be thought and conceived as ought to be. Kelsen’s view about positivity has to do with a way of thinking referred to an object and its mode of existence.
“Being” and law as “ought to be” as categories
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Thursday 13th May 2021
Dr Jorge Emilio Núñez
 Hans Kelsen, Essays in Legal and Moral Philosophy (Springer, 2011), 27-60.