Michael Steven Green (College of William and Mary - Marshall-Wythe School of Law) has posted Kelsen, Quietism, and the Rule of Recognition (THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth E. Himma eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system.
Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face.
And from the paper:
There is an enormous literature on the basic norm, and I cannot do justice here to the many nuances of the idea and the varied roles that it played in Kelsen’s legal theory.94 But for our purposes it is enough to note that the basic norm could not have been understood by Kelsen as playing an explicit role in legal justification.95 The basic norm of the American legal system, for example, would be a non-positive norm authorizing the Constitutional Convention to create Article VII. And no such norm exists. It is simply false that the Convention was so authorized.
It is revealing that toward the end of his career, Kelsen spoke of the basic norm as a Vaihingerian fiction similar to a first cause.96 One can best appreciate both the attractions and the difficulties of the basic norm by treating it as analogous to a first cause. On the one hand, it appears that there must be a first cause – a prime mover – to explain how the chains of cause and effect began. On the other hand, a first cause seems impossible. Everything is caused by something that is itself caused.
Kant described the conflict between these two arguments as an antinomy of pure reason.97 And one can argue that there is a jurisprudential antinomy, in the sense that arguments exist both for and against the basic norm: On the one hand, it seems that the Constitutional Convention must have been authorized to create Article VII, or Article VII would not have the status of law. Indeed, the idea that the Convention was so authorized seems to reveal itself in our commitment to the fact that it was always true, even at the time of the dinosaurs, that Article VII would be valid if created. This seems to presuppose the existence of an eternal non-positive norm authorizing the Convention to create Article VII. On the other hand, we are equally committed to the idea that the creation of Article VII was a revolutionary act, in the sense that when one follows the chain of legal justification, no such authorization can be found.
The basic norm plays no more of an explicit role in legal reasoning than first causes play in scientific reasoning. Like first causes, we are attracted to the basic norm only when reflecting philosophically on our judgments. As far as our actual legal reasoning is concerned, quietism is correct: We take the first constitution as valid without justification. Indeed, any attempt to provide such a justification – whether it is through appeal to rule of recognition facts or the basic norm – will end up distorting our legal judgments.98
Interesting, not only for the light it sheds on "rule of recognition" issues that are unifying theme of the volume, but also for an informative and trenchent discussion of Kelsen.