B. The Normative Basic Norm (Kant)

Kant does not speak of a ‘basic norm’, nor is it at the centre of his—unlike Kelson's—legal philosophy. Nevertheless, the idea of a basic norm is clearly formulated in Kant’s Meta­physics of Morals·.

^?0? Immanuel Kant, Metaphysical Elements of Justice, a trans, by John Ladd of pl. I of the Metaphysics of Morals (1st pub. 1797), 2nd cdn. (Indianapolis: Hackett, 1999). 18 (trans, altered), Ak 6:224. natural law is a law that, ‘even in (he absence of external legislation, can be recognized as binding, that is, can be so recognized a priori, by means of reason.’²⁰' Thus, Kant’s basic norm is a norm of the law of reason, or—using an older terminology—a norm of natural law,^{[192] [193]} so that the validity of the positive law is established by the law of reason or natural law. This leads to the exact opposite of the morally indifferent character of the law in Kelsen’s theory. It leads to a moral obligation to obey the law.

Kant’s theory of the basic norm is embedded in the context of his legal philosophy, which is closely linked in turn to his moral philosophy.^[194] I cannot even begin to present Kant's legal or moral philosophy here and shall look only at (he reasons he adduces for his basic norm and at its content.

Kant's justification of his basic norm is part of his justifica­tion of the necessity of positive law, an argument in the trad­ition of social contract theories. These theories arc marked by the distinction between a state of nature and what Kant calls a ‘civil’ state of affairs, that is, a legal or public state of affairs. Differences in the social contract theories are manifest, inter alia, in the interpretation of the slate of nature. According to Kant, rights justified by reason already exist in the state of nature (status naturalis), but they are not secured in the state of nature. To secure these rights, there is supposed to be a dictate of reason that one leave the stale of nature and move into a civil or legal slate of affairs (status civilis):

So it is a priori in the rational idea of such a (nonlegal) state of affairs that, until a publicly lawful state of affairs is established, individual human beings, peoples, and states can never be secure against violence from one another, for each has his own right to do what he deems just and good, independently of the opinion of others. The first thing incumbent upon him, then, if he does not want to relinquish every conception of law. is to subscribe to the principle that one must leave the state of nature, where everyone follows his own notions, and must unite with all others (with whom interaction is unavoidable) in subjecting oneself to a publicly lawful, external coercion. In other words, one must enter into a state of affairs where what is to be recognized as one's own is determined by law and is granted to one by an effective power that is not one's own, but an external power: that is, one should first of all enter into a civil society.^{[195] [196]}

One might think that this argument for the necessity of positive law leads to the conclusion that the natural rights that are supposed to be secured by positive law are somehow incorporated into the basic norm. But that is not the case.

The jurist steeped in the text seeks the laws securing the Mine and Thine not in his own reason (when he acts, as he should, as a civil servant), but in the code of laws publicly promulgated and sanc­tioned by the highest authority. One cannot in fairness require him to prove the truth and the legitimacy of these laws or to defend them against the objections of reason. Decrees first and foremost make something legitimate, and now to enquire into whether the decrees themselves might also be legitimate is an absurdity that must be dismissed straightaway by the jurist. It would be absurd to refuse to obey an external and supreme will for allegedly failing to corres­pond to reason. The dignity of the government consists precisely in its insistence that, on questions of justice and injustice, subjects are not free to decide according to their own notions, but. rather, must decide according to precepts of the legislative power.²⁰⁰

Kant’s strict priority of positive law over the law of reason, a priority justified by the law of reason, has been criticized again and again.²¹⁰ This critique can be supported by theses of Kant s that are irreconcilable—or at least hard to reconcile— with the notion that even a positive law that is unjust in the extreme has strict priority over the law of reason.

What is lawful {quidsit juris), that is, what laws say or have said in a certain place at a certain time, can of course be stated by him [the empirically oriented jurist]. But whether the prescriptions of these laws are also just—indeed, w hat the universal criterion is that would make it possible to recognize what justice and injustice are (iustum et iniuslum)—will remain obscure to him... Like the wooden head in Phaedrus’ fable, a purely empirical theory of law is a head that may be beautiful, but alas, it has no brain.²¹¹

How can this be reconciled with Kant’s view, cited above, that the question of the correctness or the justice of slate laws ‘is an absurdity that must be dismissed straightaway by the

' Immanuel Kant. The Conflict of the Faculties (1st pub. 1798). trans. Mary J. Gregor and Richard Anchor, in Kant, Religion and Rational Theology, cd. Allen W. Wood and George di Giovanni (Cambridge: Cam­bridge University Press, 1996), 233-327, 253 (trans, altered), Ak 7:24-5.

²¹⁰ Sec Ralf Dreier, ‘Rcchtsgehorsam und Widerstandsrccht’, in Fest­schrift fur Rudolf Wassermann zuni sechzigsten Geburtstag, cd. Christian Broda, Erwin Deutsch. Hans-Ludwig Schreiber, and Hans-Jochen Vogel (Ncuwicd and Darmstadt: Luchtcrhand, 1985). 299-316, at 302-4, with further references.

²¹¹ Kant, Metaphysical Elements of Justice (n. 202 above). 28 9 (trans, altered), Ak 6:229-30.

jurist’?²¹² Doubts about (he internal coherence of Kant's theory are prompted, loo, by his ‘touchstone of the legitimacy of each and every public law’,²¹³ which says: ‘What a people cannot resolve for itself cannot be resolved for the people by the legislator either.'²¹⁴ Is it really so. that this criterion can never restrict the obligation to obey the law. not even in cases of tyrannical caprice? Is it really definitive that legal certainty and civic peace require compliance with each and every state law, even one of extreme injustice, utterly contemptuous of what Kant calls the ‘sole original right belonging to every human being by virtue of his humanity’, namely, freedom?²¹'’ The discussion of the argument from injustice has shown that this kind of unlimited priority of positive law must be rejected.

What does all this mean for the evaluation of Kant’s basic norm? There arc two possibilities. The first is preferred by those who say that Kant’s basic norm corresponds best to the basic principles of Kant’s philosophy. The basic norm would be subject, then, to criticism based on points of view outside the Kantian system. The second possibility is preferred by those who say that Kant’s basic norm is neither a necessary nor the best conclusion to draw from the basic principles of his philosophy. This thesis can be connected to the claim that the obligation to obey that is required by Kant’s basic norm fits better into the Kantian system when (he obligation is restricted by means of a criterion like that of Radbruch’s formula than when it is unrestricted as in Kant’s own strict version of his basic norm. A theoretico-interpretative insight

^2,2 Sec Dreicr, Rcchtshegriff and Rechtsulee (n. i39 above), at 10.

²¹³ Immanuel Kant. On the Common Saying: That May he Correct in Theory, hut it is of No Use in Practice (1st pub. 1793), in Kant. Practical Philosophy, trans, and ed. Mary J. Gregor (Cambridge: Cambridge Univer­sity Press. 1996), 273-309. 297 (trans, altered), Ak 8:297.

²¹⁴ ibid. 302 (emphasis omitted) (trans, altered). Ak 8:304.

^2I’ Kant, Metaphysical Elements of Justice (n. 202 above), 38 (trans, altered). Ak 6:237.

²¹⁶ Sec above, this text, at 40 62.

at (his point might be that not even a great philosopher always draws the correct conclusions from his own basic principles. Which of these two possibilities is preferable in evaluating Kant’s basic norm cannot be considered here in the requisite detail. So there is only this conjecture, namely, that Kant, in strictly formulating his basic norm, has not drawn a conclu­sion (hat is definitively prescribed in his system, but. rather, has succumbed to contemporaneous notions of the authori­tarian state.²¹' If this conjecture is correct, then Kant’s basic norm is to be modified in terms of the argument from injus­tice. If this conjecture is incorrect, then Kant’s basic norm, justified by the law of reason, is more positivistic in its effects than Kelsen’s basic norm. Kelsen’s basic norm says only that one can, if one wishes, interpret every issued and efficacious norm as a legally valid norm, without thereby giving rise to any moral obligations whatsoever. By contrast, Kant’s basic norm would say- unless it were restricted—that one must interpret every issued and efficacious norm as a legally valid norm regardless of whether or not one wishes to do so and, moreover, that one is morally obligated to obey every such norm. A morally justified radical positivism like this is far less acceptable than Kelsen’s sceptical, epistemological variant.