1

Kelsen on Monism and Dualism

Torben Spaak*

1. INTRODUCTION

Kelsen defends (a) monism, that is, the view that international law and the various state legal
systems taken together constitute a unified normative system, and (b) the primacy of international
law over state law within the monistic framework, arguing (c) that his analysis of the
monism/dualism question undermines (what he refers to as) the dogma of sovereignty and
removes a difficult obstacle to the efforts to further centralize international law. He argues in
support of the (a)-claim (i) that only monism is compatible with the epistemological postulate,
according to which cognition requires the unity of the object of cognition, (ii) that we must
distinguish between norm contradictions and norm contrarieties, and that the norm conflicts that
are said by critics of monism to undermine monism are harmless, since they are not norm
contradictions, but only norm contrarieties, and (iii) that the doctrine of dualism collapses into
solipsism due to its dependence on the doctrine of recognition. He argues in support of the (b)-
claim (iv) that the idea of the primacy of international law within the monistic framework is
necessary to account for the existence of states that are legally coordinated and separated from
one another in their spheres of validity. And he argues in support of the (c)-claim (v) that there
can be no sovereign states that are independent of international law and thus constitute an
obstacle to the efforts to further centralize international law.
In this article, I discuss claims (a), (b), and (c), and the arguments (i)-(v) that Kelsen adduces
in support of these claims. I argue (I) that while Kelsen is right that only monism is compatible
with the epistemological postulate, his claim is doubtful that the norm conflicts identified by the
critics of monism and put forward as an obstacle to the theory of monism are only norm
contrarieties, not norm contradictions. I also argue (II) that if Kelsen had been right that these
norm conflicts are only norm contrarieties, the dualists should have been able to invoke the same
defense against the critics of dualism and thus avoid the criticism of dualism via the criticism of
the doctrine of recognition. Moreover, I argue (III) that Kelsen’s account of norm contradictions
and norm contrarieties is problematic in more than one way, and that this affects the clarity and
utility of this distinction. Next I argue (IV) that Kelsen’s claim is well founded that dualism
collapses into solipsism due to its dependence on the doctrine of recognition, (V) that Kelsen’s
defense of monism with international law primacy is plausible, but not without its problems, and
(VI) that Kelsen’s claim is plausible that there can be no sovereign states that are independent of
international law. Finally, I suggest (VII) that, contrary to what Kelsen appears to think, the
epistemological postulate appears to rule out locating law in a higher realm of norms and values
sharply separated from the world of time and space.
I base my account and criticism of Kelsen’s discussion of monism and dualism on the lucid
presentation of these questions in the first edition of Reine Rechtslehre, though I shall now and

*
Professor of Jurisprudence, Department of Law, Stockholm University. I would like to thank Anders
Fogelklou, Åke Frändberg, Jaap Hage, Patricia Mindus, and Lennart Åqvist for helpful comments on the article and
Mark Klamberg and Karl Pettersson for helpful comments on Section 2 and Sections 3 and 7, respectively. I would
also like to thank Robert Carroll for checking my English. Of course, the usual caveat applies: The author alone is
responsible for any remaining mistakes and imperfections.

Electronic copy available at: http://ssrn.com/abstract=2231530

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then refer also to the account in the General Theory of Law and State. As far as I can tell, the
discussions of monism and dualism in these two works are very similar.
I begin by introducing the doctrines of monism and dualism and discussing briefly a recent
court case that illustrates them (Section 2). I then introduce the epistemological postulate of the
unity of the object of cognition and the distinction between norm contradictions and norm
contrarieties (Section 3) and consider Kelsen’s claim that dualism collapses into solipsism due to
its dependence on the doctrine of recognition (Section 4). Having done that, I turn to consider
Kelsen’s argument in support of the idea of the primacy of international law within the monistic
framework (Section 5) and add a few words about the political implications of Kelsen’s analysis
(Section 6). I then turn to a critical discussion of the distinction between norm contradictions and
norm contrarieties and the use to which Kelsen puts it in his defense of monism (Section 7). The
article concludes with some thoughts on the relation between the epistemological postulate and
Kelsen’s ontological non-naturalism (Section 8).

2. MONISM AND DUALISM

Kelsen explains that monism is the theory that all law – international law as well as the various
state legal systems – constitutes a unified system of law. The idea, he points out, is that “one can
conceive of international law together with the state legal systems as a unified system of norms in
exactly the same way as one is accustomed to regarding the state legal system as a unity.” 1
Dualism, on the other hand, is the theory that international law and state law do not constitute a
unified system of law, but exist instead independently of one another. As Kelsen puts it, dualism
sees “international law and state law as two different systems of norms, independent of each
other and reciprocally isolated because resting on two different basic norms.” 2 The understanding
of the ideas of monism and dualism on the part of contemporary experts in international law,
such as Antonio Cassese, 3 is very much in keeping with that of Kelsen.
Moreover, it is common to distinguish within the framework of monism between (a) monism
with national law supremacy and (b) monism with international law supremacy. 4 Whereas (a)
takes its starting point in a national legal system, say, Swedish law, and conceives of international
law together with the other national legal systems as part of this national legal system, (b) takes
its starting point in international law and conceives of the various national legal systems as
subordinated to, and in this sense as parts of, international law. As we shall see in Section 5,
Kelsen defends alternative (b).
There are at least two important legal consequences of the choice between monism and
dualism. First, under dualism, but not under monism, a state will not be bound by international
law, unless it has recognized it. Secondly, a state that accepts dualism, but not a state that accepts
monism, will have to transform the norms of international law into state law by means of state
legislation – if no such transformation has taken place, the national courts will not be (legally)
able to give effect to the relevant norms of international law.
Cassese points out that whereas the main political idea behind dualism is the idea of state
sovereignty, the main political idea behind monism with national law primacy is a moderate
nationalism, and behind monism with international law primacy an ideal of internationalism and
1
H. Kelsen, Introduction to the Problems of Legal Theory, 1992, 111.
2
H. Kelsen, IPLT, 111.
3
See A. Cassese, International Law, 2nd. ed. 2005, 213-6.
4
A. Cassese, International law, 213-6.

Electronic copy available at: http://ssrn.com/abstract=2231530

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pacifism. 5 And even though his reasoning centers on the above-mentioned epistemological
postulate, it is clear that Kelsen is drawn to the ideal of internationalism and pacifism. Indeed, as
we shall see (in Section 6), his criticism of dualism aims to show that (what he refers to as) the
dogma of state sovereignty does not pose an obstacle to efforts to further centralize international
law.
It appears, however, that contemporary legal practice does not conform clearly to either the
monist or the dualist view. As Cassese explains, although dualism has been dominating for some
time, it is no longer valid in its entirety, and some of Kelsen’s ideas are coming to be accepted in
the international community:

It [international law] no longer constitutes a different legal realm from the various municipal systems,
but has a huge daily direct impact on these systems. It conditions their life in many areas and even
contributes to shaping their internal functioning and operation. In addition, many international rules
address themselves directly to individuals, without the intermediary of national legal systems: they
impose obligations on them (this chiefly applies to rules on international crimes), or grant them rights
(for instance the right to petition international bodies). Those obligations must be fulfilled, and the
rights may be exercised, regardless of what national legal orders may provide. In short, in many
respects individuals have become international legal subjects, associated to sovereign States. 6

The much-discussed decision by the European Court of Justice, the Kadi and Al Barakaat
case, is of some interest in this context. Whereas the Court of First Instance of the European
Communities appears to have adopted a monistic view, 7 the Court of Justice clearly adopted a
dualist view of the relation between international law, EU law, and the law of the member states
of the European Union. 8 Crudely put, whereas the Court of First Instance argued that central
principles of international law take priority over EU law and obligate the institutions of the EU to
act accordingly, the Court of Justice insisted that each EU institution is obligated under EU law
to check and see whether the action it intends to take under international law is permissible in
light of fundamental principles of EU law.
The central questions in the Kadi and Al Barakaat case(s) were whether the European Council
had the legal power (or competence) to enact a regulation that provided for the freezing of funds
of people or organizations that were suspected of financing the activities of terror organizations,
such as Al Qaeda, and, if so, whether the enactment of this regulation violated the human rights
of the people involved.
The facts of the Kadi and Al Barakaat case(s) were as follows. On 15 October 1999, the
Security Council adopted Resolution 1267 (1999), in which it condemned the fact that Afghan
territory was being used by terror organizations, such as Al Qaeda, and demanded that the
Taliban should without further delay hand over Usama bin Laden to the appropriate authorities in
a country where he could be brought to justice. In paragraph 6 of the resolution, the Security
Council established an entity named the Sanctions Committee, whose responsibility it was to
ensure that the states implemented certain measures outlined in paragraph 4 of the resolution. On
19 December 2000 the Security Council adopted Resolution 1333 (2000), demanding, among
other things, “that the Taliban should comply with Resolution 1267 (1999), and that they should
5
A. Cassese, International Law, 214-6.
6
A. Cassese, International law, 216-7.
7
Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission,
[2005] ECR II-3533, Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, [2005] ECR II-3649.
8
Joined cases C-402/05 and C-415/05, Yassin Abdullah Kadi and Al Barakaat Foundation v Council of the
European Union and Commission of the European Communities.
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cease to provide sanctuary and training for international terrorists and their organizations and turn
Osama bin Laden over to appropriate authorities to be brought to justice.” 9 Paragraph 8(c) of
Resolution 1333 provided that the states should freeze funds and other financial assets of Usama
bin Laden and people and organizations associated with him. 10 And in the same paragraph the
Security Council instructed the Sanctions Committee to “maintain an updated list . . . of the
individuals and entities designated as associated with Usama bin Laden, including those in the
Al-Qaeda organization.” 11
On 26 February 2001, the European Council, which took the view that action by the European
Community was necessary to implement Resolution 1333, adopted Common Position
2001/154/CFSP concerning additional restrictive measures against the Taliban, thus amending
the previously adopted Common Position 96/746/CFSP. Article 4 of Common Position
2001/154/CFSP provided that funds and other financial assets of Usama bin Laden and
individuals or organizations associated with him should be frozen and not made available to bin
Laden or the above-mentioned individuals or organizations. 12 On 6 March 2001, the European
Council adopted Regulation (EC) No 467/2001, which prohibited the “export of certain goods
and services to Afghanistan,” and repealed Regulation No 337/2000. Article 2 of Regulation No
467/2001 provided, inter alia, as follows:

All funds and other financial resources belonging to any natural or legal person, entity or body
designated by the . . . Sanctions Committee and listed in Annex I shall be frozen.

No funds or other financial resources shall be made available, directly or indirectly, to, or for the
benefit of, persons, entities or bodies designated by the Taliban Sanctions Committee and listed in
Annex I.

Mr. Kadi and Al Barakaat, an organization based in Sweden, took the case to the Court of
First Instance of the European Community, seeking the annulment of Regulation No 467/2001. In
addition, Mr. Kadi also sought annulment of Regulation No 2062/2001, and Al Barakaat sought
annulment of Regulation No 2199/2001. I shall consider the Al Barakaat case only in what
follows.
The Court of First Instance began its treatment of the question of the relation between
international law, EU law, and the legal systems of the member states of the European Union
with a consideration of the relation between, on the one hand, international law, and, on the other
hand, treaty law, including the EC Treaty, and the legal systems of the member states of the
United Nations. The Court took the view that norms of the UN Charter take priority both over the
norms of the legal systems of the member states and over the norms of the EC Treaty and the
European Charter of Human Rights:

As regards, first, the relationship between the Charter of the United Nations and the domestic law of
the Member States of the United Nations, that rule of primacy is derived from the principles of
customary international law. Under Article 27 of the Vienna Convention on the Law of Treaties, which
consolidates those principles (and Article 5 of which provides that it is to apply to ‘any treaty which is
the constituent instrument of an international organization and to any treaty adopted within an

9
Paragraph 14.
10
Paragraph 14.
11
Paragraph 15.
12
Paragraph 17.
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international organisation’), a party may not invoke the provisions of its internal law as justification for
its failure to perform a treaty.

As regards, second, the relationship between the Charter of the United Nations and international treaty
law, that rule of primacy is expressly laid down in Article 103 of the Charter which provides that, ‘[i]n
the event of a conflict between the obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement, their obligations under the
present Charter shall prevail.’ 13

The Court concluded that not only the member states of the European Community, but also
the European Community itself, are bound by international law, including the provisions of the
UN Charter: “it must be held, first, that the Community may not infringe the obligations imposed
on its Member States by the Charter of the United Nations or impede their performance and,
second, that in the exercise of its powers it is bound by the very Treaty by which it was
established, to adopt all the measures necessary to enable its Member States to fulfil those
obligations.” 14 This means that the Court arrived at the conclusion that the Council could not
review the regulation that it intended to enact (in order to implement the resolution adopted by
the Sanctions Committee) in light of fundamental norms of EU law without violating its legal
duty under the UN Charter. Hence, the Court concluded, the Council acted in accordance with the
law when it enacted the regulation. 15
Al Barakaat (and Mr. Kadi) appealed the decision to the Court of Justice, seeking annulment
of the regulation in question. The Court found for the appellants in so far as it set aside the
judgments of the Court of First Instance and annulled Council Regulation (EC) No 881/2002 in
so far as it concerned Al Barakaat (and Mr. Kadi).
The Court of Justice took the view that the Council was under a duty of EU law to check
whether the proposed regulation was in keeping with the fundamental norms of EU law, and that
the Court itself was duty-bound to review any proposed act of the various institutions of the
European Union in light of the fundamental norms of EU law.
The Court began its analysis of the question under consideration by pointing out that the
European Community is based on the rule of law to the extent that both its member states and its
institutions must review the conformity of their acts with the EC Treaty, 16 and that no
international agreement can affect the autonomy of the Community legal system. 17 The Court
was, however, careful to point out that a finding on the part of the Court that a Community act
based on, say, a resolution adopted by the Security Council would not entail any challenge to the
primacy of that resolution in international law. 18 It also notes later in the opinion that “[t]he
question of the Court’s jurisdiction arises in the context of the internal and autonomous legal
order of the community, within whose ambit the contested regulation falls and in which the Court
has jurisdiction to review the validity of Community measures in the light of fundamental

13
Al Barakaat, paragraphs 232-233.
14
Al Barakaat, paragraph 254.
15
I find the Court’s strategy of citing the UN Charter in order to prove that the UN Charter takes precedence
over national law and international treaty law unconvincing, as it presupposes an affirmative answer to the very
question at issue, namely whether the UN Charter does take precedence. I shall not, however, pursue this objection to
the Court’s reasoning.
16
Kadi and Al Barakaat, paragraph 281.
17
Kadi and Al Barakaat, paragraph 282.
18
Kadi and Al Barakaat, paragraph 288.
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rights. 19 The repeated references to community law as an autonomous legal order suggest that the
Court here adopted a dualist approach.
It is worth noting that neither court speaks of ‘monism’ or ‘dualism.’ What they do is develop
their respective view of the relation between international law, EU law, and the law of the
member states of the European Union, and they clearly believe that one way of understanding
this relation (or these relations) is legally correct. So we may infer that, even though they do not
speak of ‘monism’ or ‘dualism’, they view these doctrines as first-order doctrines. That is to say,
they think of the doctrines as being part of the law and therefore as having normative content.
Kelsen, on the other hand, as we shall see, appears to view the concepts of monism and dualism
as second-order concepts, that is, concepts that legal scholars make use of when analyzing the
law, not first-order legal concepts that judges and others use when stating the law, that is, when
making first-order legal claims. 20 Note that the distinction between first-order and second-order
legal concepts is a corollary to the well-established distinction between object-language and
meta-language, 21 and that in the case of the law, the object language is normative, whereas the
meta-language is descriptive.
This difference between first-order and second-order legal concepts means that legal scholars
do not have to worry about the precise content given to a second-order concept by a court, if the
court were to use such a concept. For example, a legal scholar may operate with a concept of a
legal right, such that a person has a legal right if, and only if, he has a legally respected choice in
the sense explained by H. L. A. Hart. 22 He can do this whether or not there are to be found in the
case law of the high court statements about the structure and import of the concept of a legal
right. He can take such statements lightly, should there be any, because his task is to analyze the
concept of a legal right in such a way that the analysis comports with legal practice, not with
competing theoretical views (even those expressed by judges) about the structure and import of
this concept.

3. THE UNITY OF COGNITION, NORM CONTRADICTIONS, AND NORM CONTRARIETIES

The reason why Kelsen espouses monism is that he accepts the epistemological postulate of the
unity of the object of cognition and believes that monism, but not dualism, is acceptable from the
point of view of this postulate. 23 The idea is that cognition represents its object as a unity, and
that this implies that there are no contradictions or other inconsistencies in this representation.
Kelsen reasons that it follows from this postulate, when applied to the field of law, that one
cannot coherently maintain that two norms, whose content is mutually exclusive, are
simultaneously valid. Here is Kelsen:

The negative criterion of this unity is non-contradiction, a logical principle that also applies to
cognition in the realm of norms. One cannot claim that a norm with content A is valid, and claim at the
same time that a norm with content not-A is valid. One can claim—and no doubt must claim, in view

19
Kadi and Al Barakaat, paragraph 317.
20
For an illuminating discussion of this (or a very similar) distinction, which the author refers to as a distinction
between J-Concepts (juridical concepts) and L-Concepts (law-concepts), see Å. Frändberg, An Essay on Legal
Concept Formation. In J. Hage and D. van der Pfordten, eds., Concepts in Law, 2009, 1-16.
21
On the distinction between object language and meta-language, see J. Lyons, Semantics 1, 1977, 10-3.
22
H. L. A. Hart, Bentham on Legal Rights. In A. W. B. Simpson, ed., Oxford Essays in Jurisprudence (second
series), 1973, 171-201.
23
H. Kelsen, IPLT, 113.
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of the facts—that norms whose content is mutually exclusive actually are issued and, on the part of the
norm-addressees, are imagined and are obeyed or not obeyed. There is no more logical contradiction in
this statement, referring to natural facts, than there is in the observation that two opposing forces are
both efficacious. But one cannot claim that two norms whose content is, logically speaking, mutually
exclusive are valid at the same time—that is, one cannot claim that A ought to be and, at the same
time, not-A ought to be, just as one cannot claim that A is and, at the same time, not-A is. 24

Kelsen appears to view the epistemological postulate as more or less obvious and
unproblematic. And I am inclined to share this view. Like Kelsen, I find it reasonable to assume
that knowledge involves (or implies) unity of the knowledge object at least in the minimal sense
that this object can be described in a non-contradictory manner, that one cannot describe in a non-
contradictory manner a situation in which A ought to be and, at the same time, not-A ought to be,
and that therefore one cannot have knowledge of what the persons involved ought to do in this
type of situation. 25
Kelsen notes, however, that critics of monism have objected that there exist norms in state
law and international law that conflict, and that this means that one cannot coherently conceive of
international law and state law taken together as a unified normative system, as monists wish to
do. 26 But, he points out, this objection fails because these norm conflicts do not qualify as norm
contradictions, but are only norm contrarieties, that is, conflicts between norms on a higher and
norms on a lower level in the (unified) legal system, in the sense that the lower-level norm, N2,
although it was created on the basis of the higher-level norm, N1, has a content that does not
conform to the requirements in N1. As Kelsen puts it, “[t]he problem posed here is that of ‘norm
contrary to norm,’ namely, the unconstitutional statute, the illegal regulation (the regulation that
is contrary to statute), the judicial decision or the administrative act that is contrary to statute and
regulation.” 27 He adds that norm contrarieties “simply represent[] either the invalidatability of the
lower-level norm, or the responsible authority’s liability to punishment.” 28
The idea on the part of Kelsen appears to be that positive law implicitly accepts norm
contrarieties, but not norm contradictions, because it does not declare them to be null and void
from the outset (ex tunc), but instead provides that the organ that enacted an unconstitutional
statute or an illegal regulation shall be punished, or that a court may on appeal invalidate the
statute or regulation in question (ex nunc). Contemplating the case of the unconstitutional statute,
he states the following:

If . . . an unconstitutional statute is possible . . . this can only be interpreted in one way: the
constitution aims not only for the validity of the constitutional statute, but also (in some sense) for the
validity of the ‘unconstitutional’ statute. Otherwise, one could not speak of the ‘validity’ of the latter at
all. That the constitution does aim for the validity of the so-called unconstitutional statute is shown in
the fact that it prescribes not only that statutes should be created in a certain way and have (or not
have) a certain content, but also that if a statute was created other than in the prescribed way or has
other than the prescribed content, it is not to be regarded as null and void, but is to be valid until it is
invalidated by the designated authority—say, a constitutional court—in a procedure governed by the
constitution. 29

24
H. Kelsen, IPLT, 112.
25
I assume here that knowledge implies truth: If you know that p, then it is true that p. But if the description of p
is contradictory, it cannot be true that p. Hence in such a case, you do not know that p.
26
H. Kelsen, IPLT, 114.
27
H. Kelsen, IPLT, 71.
28
H. Kelsen, IPLT, 118.
29
H. Kelsen, IPLT, 72.
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Turning to consider the analogous case of the illegal regulation, he expresses the same idea in
somewhat different terms. The reason why there is no contradiction between the illegal
regulation and the higher-level norm that authorized the creation of the illegal regulation, he
explains, is that the higher-level norm includes alternative provisions, and that the illegal
regulation does not contradict the compound higher-level norm, but only one of its alternative
provisions. As he puts it, “. . . a contradiction with the first of the alternative provisions into
which the compound higher-level norm divides is not a contradiction with the compound norm as
a whole.” 30
Kelsen concludes his discussion of norm contrarieties by pointing out that such norm conflicts
do not threaten the cognitive unity of the system: “Normative cognition tolerates no contradiction
between two norms of the same system; the possible conflict, however, between two valid norms
at different levels is resolved by the law itself. The unity in the hierarchical structure of the legal
system is not endangered by logical contradiction.” 31

4. DUALISM AND SOLIPSISM

Since Kelsen espouses monism on the grounds that he believes that only monism is compatible
with the epistemological postulate, he must reasonably believe that the main problem with
dualism is precisely that it is not compatible with this postulate. He notes, however, that dualists,
too, accept the postulate, 32 if only tacitly, and think they can solve the problem of norm conflicts
by regarding their own state legal system as the only system of legally valid norms. 33 He also
notes that since they realize that in practice it is more or less impossible not to view the norms of
international law and other state legal systems as valid (in the sense of binding), dualists have
introduced the doctrine of recognition in order to account for the existence of other valid legal
systems. 34 Under this doctrine, a legal system, B, qualifies as a valid legal system from the point
of view of another legal system, A, if, and only if, A has recognized B. Hence B might exist from
the point of view of A (because A has recognized B), but not from the point of view of C (because
C has not recognized B).
But how can the doctrine of recognition be of any help to somebody who is worried about
norm conflicts in light of the epistemological postulate? The idea appears to be that recognition
by system A of system B will render the existence of any conflicts between the norms of A and B
unproblematic from the point of view of A, on the grounds that A will then have accepted the
existence of such norm conflicts. This idea is similar to the one hinted at by Kelsen in his
discussion of norm contrarieties (see Section 3 above), namely that positive law has accepted the
existence of unconstitutional statutes and illegal regulations by not declaring them to be null and
void from the outset, but instead providing that the organ that enacted an unconstitutional statute
or an illegal regulation shall be punished, or that a court may on appeal invalidate the statute or
regulation in question, and that it has in this way solved the norm conflict. But this assumes, of
course, that the dualists are faced with norm contrarieties, not with norm contradictions, and it is
by no means clear that this is so. Generally speaking, one cannot dissolve a contradiction by
accepting it. If one cannot coherently maintain that one or more persons ought simultaneously to

30
H. Kelsen, IPLT, 74.
31
H. Kelsen, IPLT, 75.
32
H. Kelsen, IPLT, 111.
33
H. Kelsen, IPLT, 114.
34
H. Kelsen, IPLT, 115.
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do A and not-A, one cannot coherently accept that they ought simultaneously to do A and not-A
either.
Kelsen also objects that the doctrine of dualism will ultimately collapse into solipsism, that is,
the view (crudely put) that the individual (in this case, the legal system) is at the center of the
world and the reason for the existence of every other thing (in this case, every other legal
system). 35 The problem with legal solipsism, he explains, is that the legal solipsists (that is, the
dualists) cannot explain how either independent states or international law can exist
independently of recognition. He thus assumes that there is an objective legal reality, which
features both independent state legal systems and an independent system of international law and
argues that dualists cannot account for this reality:

The subjectivist’s own ‘I’ is his point of departure in comprehending the world, but despite extending
it to the universe, the subjectivist cannot get past his own sovereign ‘I’ to arrive at an objective world.
He is incapable of comprehending another subject, the not-‘I’, as an entity comparable to his own ‘I’,
with the same claim to sovereignty, the ‘you’ also claiming to be an ‘I’. Similarly, a monistic
construction based on the primacy of the legal system of one’s own state is completely incompatible
with the notion of a plurality of coordinate states, equally ordered and legally separated from each
other in their spheres of validity. (And it is precisely this monistic construction that dualism, with its
bias for preserving the dogma of sovereignty, transforms itself into by way of the doctrine of
recognition.) Thus, the primacy of the state legal system implies in the end not only the denial of the
sovereignty of all other states, and thereby their legal existence as states (in terms of the dogma of
sovereignty), but also the denial of international law. 36

The denial of international law, Kelsen explains, means that from the point of view of state
law, international law cannot perform its function of coordinating the various states, “equally
ordered and legally separated from each other in their spheres of validity.” For if the validity of
international law depends on the validity of state law, specifically on the validity of the state
constitution, and if the constitution can be abrogated by a simple constitutional amendment, then
this will undermine the state’s recognition of other states, depending as it does on the validity of
international law. As Kelsen puts it, “[t]he theory of the primacy of the legal system of one’s own
state returns ultimately to its point of departure, namely, that one acknowledge as law only the
legal system of one’s own state.” 37
I find Kelsen’s critique of dualism persuasive. To assume, as Kelsen does, that there is an
objective legal reality that features independent state legal systems and an independent system of
international law is plausible, and to object that the legal dualists cannot account for this reality is
convincing. Like Kelsen, I thus believe that dualism, due to its dependence on the doctrine of
recognition, leads to absurd results on the intellectual plane. This is not, of course, to say that
dualism is unworkable in legal practice.

5. MONISM: THE PRIMACY OF INTERNATIONAL LAW

Kelsen reasons that one who accepts the idea of the unity of cognition and who therefore accepts
monism will have to conceive of the relation between two legal systems, A and B, either (i) as a
matter of subordination, or (ii) as a matter of coordination, in a way that presupposes the
existence of a third system, C, to which both A and B are subordinated:
35
I am relying here on Kelsen’s characterization of solipsism.
36
H. Kelsen, IPLT, 116.
37
H. Kelsen, IPLT, 117.
 10

There are, in principle, two possibilities for a unified system. Two complexes of norms, apparently
different, form a unified system if one complex (or system) proves to be subordinate to the other
because the basis of its validity—and so, its (relative) basic norm, the basic determinant of its
creation—is found in the other system, that is, in a norm of the other system. Or, alternatively, the two
systems appear as coordinates of one another, equally ordered, which really means that they are
separated from each other in their spheres of validity. Coordinate systems presuppose a third, higher-
order system that governs the creation of both of the other systems, separating them from each other in
their spheres of validity, and thus, first and foremost, coordinating them. 38

He then maintains that one who wants to conceive of international law together with the
various state legal systems as a unified legal system will have to opt for the primacy of
international law, since this is the only way of accounting for the existence of state legal systems
that have the legal competence to enter into treaties with one another, or to create customary law
by acting in a certain way. 39 He argues, more specifically, that it must be a norm of international
law that confers such competence on the states because it could not be a norm of state law, and it
could not be a norm of state law because such a norm could not confer competence on another
state:
If states are coordinates of one another, equally ordered, then each state can impose obligations on, and
grant rights to, only its own citizens. The competence of a state does not reach beyond the sphere of
validity of the state legal system. And since the competence of one state and that of another cannot be
added up like mathematical quantities, then—unless a higher-order system delegates appropriate
powers—not even two states together are in a position to create norms that, like norms created by state
treaty, are valid for the territory of both states. 40

The idea appears to be that while state A can confer legal competence on the organs and
citizens of A and while state B can confer such competence on the organs and citizens of B, A
cannot confer such competence on B (or on the organs and citizens of B) and B cannot confer
such competence on A (or on the organs and citizens of A). As Kelsen puts it in the quotation
above, “[t]he competence of a state does not reach beyond the sphere of validity of the state legal
system.” What is needed, then, is a norm that is independent of A and B and confers the necessary
competence on both A and B, and this would have to be a norm of international law. What else
could it be? My guess is that Kelsen has in mind here the principle pacta sunt servanda, which he
considers to be a fundamental principle of international law. 41 On this analysis, then, the
existence and legal competence of states presuppose the existence of international law, including
the principle pacta sunt servanda, that recognizes them and confers on them this competence.
This line of argument is not without its problems, however. First, if the existence and legal
competence of states presuppose the existence of international law, how could international law
have been created in the first place? But perhaps Kelsen could argue that we must distinguish
between a situation in which a legal system is emerging and a situation in which it is already in
existence, and that his claim about the dependence of the states on international law concerns the
latter situation only. He might reason, in other words, that although he cannot explain precisely
how either international law or the state legal systems came into existence, they do exist today,
and that his claim is true in this situation. Doing this, he might add, is no more (and no less)
problematic than it is to maintain, as legal positivists do, that a norm is a legal norm if, and only

38
H. Kelsen, IPLT, 112-3.
39
H. Kelsen, IPLT, 122-3.
40
H. Kelsen, IPLT, 122-3.
41
H. Kelsen, IPLT, 107.
 11

if, it can be traced back to a recognized source of law, while admitting that a recognized source of
law in turn is a source of law that is recognized by (the courts of) a legal system. The positivists
simply assume that we can tell whether there is a legal system, LS, in existence in a certain
territory and proceed to argue that any proposed norm will be a norm of LS if, and only if, it can
be traced back to a source of law that is recognized by LS.
Secondly, why does Kelsen not consider the possibility that A can confer legal competence on
A and that B can confer such competence on B? Does he mean to say that this alternative is ruled
out on logical grounds, so that an entity simply cannot confer competence on itself, 42 or does he
mean to say that even if this is possible, it is not enough? My impression is that he is primarily
concerned with the second alternative, arguing as he does (in the quotation above) that “not even
two states together are in a position to create norms that . . . are valid for the territory of both
states.” 43 I suppose he reasons that the very idea of states and state competence will be
meaningful only against a background of international law, since only international law can
recognize states and confer upon them competence to change legal positions in the system of
international law. And I am inclined to agree.
I conclude that Kelsen’s defense of the primacy of international law within the framework of
monism is plausible, though not without its problems. The main problem, as I see it, is that one
might object that Kelsen is simply assuming from the outset that a (purported) state would not be
a state and would not have legal competence, if it had not been recognized by international law.
But would there really not be any states or any state legal competence if the system of
international were to be dismantled? It seems to me that this question raises new questions, such
as “What is a state?” and “What is state legal competence?”.

6. STATE SOVEREIGNTY AND THE CENTRALIZATION OF INTERNATIONAL LAW

Kelsen concludes his discussion of monism and dualism by pointing out that he has undermined
(what he refers to as) the dogma of sovereignty, 44 and that in doing this he has removed a
difficult obstacle to the efforts to develop international law in the direction of further
centralization:

The Pure Theory of Law opposes a line of argumentation that pronounces such development
incompatible with the nature of international law or with the essence of the state—which is really to
say, incompatible with all that the concept of sovereignty is supposed to express. The Pure Theory of
Law exposes once and for all the attempt to use the concept of sovereignty to lend to a purely political
argument—which is always vulnerable to a comparable counter-argument—the appearance of a logical
argument, which would by its very nature be irrefutable. 45

Kelsen’s idea, then, is that the discussion makes it clear that those who object to further
centralization of international law, on the grounds that such centralization would be incompatible
with the nature of international law and the idea of sovereign states, are guilty of begging the
42
This would seem to be Alf Ross’s view. See A. Ross. On Self-Reference and a Puzzle in Constitutional Law.
Mind 78. 1969, 1-24.
43
As far as I can tell, he does not consider the first alternative. But he could have reasoned that whereas the
competence of citizens and organizations would have to be a competence to change legal positions within the
framework of the legal system of A (or B), the competence of A (or B) to enter into a treaty with another state would
have to be a competence to change legal positions within the framework of the system of international law.
44
H. Kelsen, IPLT, 124.
45
H. Kelsen, IPLT, 124.
 12

question of whether there are, or can be, any sovereign states that are independent of international
law and thus constitute obstacles to the further centralization of international law. As we have
seen in Section 5, Kelsen answers this question in the negative, arguing that there are no, and
cannot be any, sovereign states that are independent of international law, because it was
international law, and international law only, that recognized them as states in the first place. So,
on this analysis, any state that is recognized by international law will only be as sovereign as
international law allows it to be. He therefore concludes that the objection under consideration to
the efforts to further centralize international law has been undermined. And, as I have argued in
Section 5, I am inclined to agree that the existence and legal competence of the states do depend
on the existence of a system of international law, and that therefore Kelsen’s analysis has indeed
undermined the objection in question.

7. NORM CONTRADICTIONS AND NORM CONTRARIETIES REVISITED

Kelsen maintains, as we have seen, that norm contradictions are one thing and norm contrarieties
another, that norm contradictions, but not norm contrarieties, violate the epistemological
postulate, that the norm conflicts that the critics of the doctrine of monism have identified and
presented as obstacles to monism are not norm contradictions, but only norm contrarieties, and
that the crucial difference between norm contradictions and norm contrarieties is that positive law
accepts the latter but not the former.
I am not convinced by Kelsen’s argumentation, however. First, the account of norm
contradictions, and therefore of the distinction between norm contradictions and norm
contrarieties, is not as clear as it might be. To begin with, in his discussion of norm
contradictions, Kelsen clearly assumes that the laws of logic – such as, e.g., the law of non-
contradiction, modus ponens, and the usual tautological implications and equivalences – apply to
norms. 46 That this is so is not clear, however. For the validity (as distinguished from the
derivability) of an inference (or an argument) is defined in terms of truth, 47 and many –
including Kelsen himself in his later years – hold that norms lack truth-value. 48 One might,
however, argue that whether or not norms have truth values, and whether or not the applicability
of the laws of logic to norms presupposes that norms have truth values, a norm conflict is a norm
contradiction just in case the norm subject(s) cannot satisfy the two norms simultaneously. 49 If,
however, one wishes to speak of norm contradictions in this broader sense, one must be prepared
to count as norm contradictions norm conflicts where a person (or a group of persons) ought to
do A and simultaneously ought to do B, if doing A (B) means that, for practical reasons, he (or
they) cannot also do B (A). For example, Smith ought to teach a class in Stockholm on Thursday
afternoon (OA), but he ought also to be in Oslo on Thursday afternoon and examine a doctoral

46
He later gave up this view, however. See H. Kelsen, General Theory of Norms, 1991, 189-251. For a useful
list of what I call “the usual tautological implications and equivalences,” see, e.g., P. Suppes, Introduction to Logic,
1958, 34.
47
One usually says that a logically valid inference (or argument) is such that necessarily, if the premises are all
true, then the conclusion is true. See, e.g., E. Lepore, Meaning and Argument. An Introduction to Logic Through
Language, 2000, 10-3; M. Sainsbury, Logical Forms, 2nd ed., 2001, 5-9, 19-23.
48
See, e.g., J. Jørgensen, Imperativer og logik. 4 Theoria , 1938, 183-90; S. Blackburn, Attitudes and Contents.
Ethics 98, 1988, 501-17. For helpful discussions of this problem, see C. E. Alchourrón & A. A. Martino, Logic
Without Truth. 3 Ratio Juris, 1990, 46-67.
49
This has been suggested by Albert Hofstadter and J. C. C. McKinsey, among others. See A. Hofstadter and J.
C. C. McKinsey, On the Logic of Imperatives. 6 Philosophy of Science, 1939, 446-57.
 13

dissertation (OB). But if he is in Stockholm on Thursday afternoon, he cannot also be in Oslo on

Thursday afternoon, and vice versa. Hence, on this analysis, the existence of the norms (OA) and
(OB) amounts in this case to a norm contradiction. I shall therefore assume that Kelsen’s
discussion of norm contradictions may be understood in terms of satisfiability.
Moreover, Kelsen does not say much about the number of norm subjects involved in a norm
contradiction. But what he does say above (in the first quotation in Section 3) suggests that he
contemplates not only situations in which one and the same person (or group of persons) ought to
do A and not-A, but also situations in which one person (or group of persons) ought to do A and
another person (or group of persons) ought to do not-A.
This way of conceiving norm contradictions does not seem promising, however. We can
easily think of a situation in which one person (or group of persons) ought to do A and another
person (or group of persons) ought to do not-A that does not strike us as problematic. Consider,
for example, a situation in which one legal norm requires car drivers to drive on the road (and
only on the road) and another legal norm requires cyclists to drive in the bicycle lane (and only in
the bicycle lane). 50 Clearly, this is a situation in which one group of persons (car drivers) ought to
do A (that is, drive on the road) and another group of persons (bicyclists) ought to do not-A (that
is, not drive on the road), but this does not strike us as problematic at all. Consider also a
situation in which there is a legal norm that requires the mother of a child to fill out a certain
form (concerning the health of the child) and the father of the child to fill out the form just in case
the mother fails to do so, that for some reason the mother refuses to fill out the form, and that the
mother and the father cannot both simultaneously fill out the form. In this situation, the mother
ought to do A (that is, fill out the form), because she is required by the law to do so, and the
father ought to do A, because he is required by the law to do so if the mother refuses. But since
they cannot both do A, it holds true, from the point of view of the mother, that she ought to do A
and that the father ought to do not-A, while it holds true from the point of view of the father, that
he ought to do A and that the mother ought to do not-A. 51 Yet, the situation cannot be said to be
problematic.
One might, however, speak meaningfully of norm contradictions in certain situations where
one person (or group of persons) ought to do A and another person (or group of persons) ought to
do not-A, namely in situations where these persons (or groups of persons) cannot both
simultaneously do A and not-A. For example, if one legal norm requires one person (or group of
persons) to allow a line of cars to cross a bridge and another legal norm requires another person
(or group of persons) to stop the cars from crossing the bridge, we surely have a norm
contradiction. That is to say, the question of whether a situation involving the existence of two
legal norms that requires different persons (or groups of persons) to do A and not-A qualifies as a
norm contradiction will depend very much on what type of action A stands for.
In addition, one might speak meaningfully of norm contradictions in certain cases of
conflicting obligations and permissions, namely (i) in situations where one and the same person
(or group of persons) ought to do A and may do not-A and, and (ii) in situations where one person
(or group of persons) ought to do A and another person (or group of persons) may do not-A, if the
persons involved cannot simultaneously do A and not-A. Even though Kelsen does not mention

50
I owe this example to Jaap Hage.
51
The reason why, from the point of view of the mother, the father ought to do not-A is that the mother ought to
do A and that this presupposes that the father does not do A (=that he does not-A), and the reason why, from the point
of the view of the father, the mother ought to do not-A is that the father ought to do A and that this presupposes that
the mother does not do A (=that she does not-A).
 14

such norm conflicts, they qualify as norm contradictions pursuant to the general characterization
of norm contradictions that he provides, since they involve “norms whose content is, logically
speaking, mutually exclusive”, provided, in the latter case, that different persons (or groups of
persons) cannot simultaneously do A and not-A.
For these reasons, I shall assume that, on Kelsen’s analysis, a norm conflict is a norm
contradiction if, and only if, it involves two norms that provide (i) that one person (or group of
persons) ought simultaneously to do A and not-A, (ii) that two different persons (or group of
persons) ought simultaneously to do A and not-A, if these persons (or groups of persons) cannot
simultaneously do A and not-A, (iii) that one person (or group of persons) simultaneously ought
to do A and may do not-A, or (iv) that one or more persons (or groups of persons) simultaneously
ought to do A and may do not-A, if these persons (or groups of persons) cannot both or all
simultaneously do A and not-A. And I shall assume that a norm conflict is a norm contrariety if,
and only if, it involves two norms, a higher-level norm and a lower-level norm, where the latter
was enacted on the basis of the former and has a content that does not conform to its (the
former’s) requirements.
This means that, on Kelsen’s analysis, the differences between these two types of norm
conflict are (a) that whereas the norms involved in a norm contradiction concern the same type of
action (A), or else different but incompatible actions (A&B), the norms that are involved in a
norm contrariety never concern the same type of action; and (b) that whereas the norms involved
in a norm contradiction concern one and the same person (or group of persons), and, in certain
cases, different persons (or groups of persons), the norms involved in a norm contrariety never
concern the same persons (or groups of persons).
Secondly, while Kelsen is justified in making a distinction between norm contradictions and
norm contrarieties, and in holding that norm contradictions, but not norm contrarieties, violate the
epistemological postulate, he is mistaken in attaching so much importance to the (alleged)
acceptance by positive law of norm contrarieties. What is important from the point of view of the
epistemological postulate is not this kind of indirect “acceptance” by positive law, 52 but whether
a norm contrariety is necessarily such that the different persons involved (the respective organs
enacting the higher- and lower-level norms) cannot both perform the relevant action(s), that is,
enact the respective norm. And since it is clear in the case of norm contrarieties that the different
persons (or organs) can both perform the relevant actions, we have no good reason to think that
norm contrarieties violate the epistemological postulate.
Thirdly, I can see no good reason to accept Kelsen’s claim that each and every alleged norm
contradiction invoked by the critics of monism is nothing more than a norm contrariety.
Moreover, Kelsen does not consider the possibility that the norm conflicts that the dualists aim to
avoid by invoking the doctrine of recognition are really nothing more than norm contrarieties. If
Kelsen can argue that the norm conflicts identified by the dualists and presented as obstacles to
monism are nothing more than norm contrarieties, why could not the dualists, too, argue that the
norm conflicts they aim to dissolve by invoking the doctrine of recognition are really nothing
more than norm contrarieties? In any case, if the dualists could convincingly argue that they are
confronted by norm contrarieties, not norm contradictions, they would not need to invoke the
troublesome doctrine of recognition and would therefore not need to struggle with the problems
of solipsism.

52
As I said in Section 4, if one cannot coherently maintain that one or more persons ought simultaneously to do
A and not-A, one cannot coherently accept that they ought simultaneously to do A and not-A.
 15

Fourthly, Kelsen never mentions in his discussion of norm contradictions an obvious tool that
one might use to dissolve norm contradictions, namely the well-known conflict-solving maxims:
lex posterior, lex superior, and lex specialis. 53 Kelsen’s omission is noteworthy, because a norm
contradiction could in many cases be dissolved by the judge or the theorist by invoking one of the
maxims. If we take these maxims into account, we might say that each norm in a legal system is
valid in the sense that it ought to be obeyed or applied, provided that it should not be set aside by
reference to one of the maxims. Why, then, does Kelsen not consider the possibility of invoking
the maxims in order to get rid of at least some of the contradictions that might arise? And why
don’t the dualists adopt this strategy? Of course, if Kelsen were right that the alleged norm
contradictions are not really norm contradictions, but only norm contrarieties, he would not need
the maxims. But, as I have said, I do not think he is right, and it is in any case clear that invoking
the maxims would be an easier and less controversial way of solving the problem than arguing
that the alleged norm contradictions are nothing more than norm contrarieties.

8. HÄGERSTRÖM ON THE UNITY OF THE STUDY OBJECT 54

Kelsen accepts, as we have seen, an epistemological postulate, according to which cognition

represents its object as a unity in the sense that there are no contradictions or inconsistencies in
this representation. The underlying idea, I take it, is that a true description of reality cannot be
contradictory. One may, however, wonder whether Kelsen’s sharp distinction between the ‘world
of the ought’ (where law is located) and the world of time and space (where human beings carry
on their activities) can be squared with this postulate. 55 Does it not follow from the sharp
separation of these two realms, that even though one may be able to have knowledge of law as
such, one cannot have knowledge of the application of law to the behavior of human beings?
Indeed, Axel Hägerström has objected to Kelsen’s theory of law precisely that the distinction
introduced by Kelsen between the ‘world of the ought’ and the world of time and space means
that Kelsen’s theory becomes socially irrelevant. The reason, Hägerström explains, is that the
‘world of the ought’ cannot be thought of as even existing alongside the world of time and space:

A legal prescript is, in fact, for him [Kelsen] a judgment concerning a supernatural existent, which
nevertheless (at least in so far as his view is carried out consistently) must be completely realized in
the world of nature. But this is an absurd idea. The supernatural juridical system cannot be thought of
as even existing alongside the natural order. For no knowledge of any reality is possible except
through relating its object to a systematically interconnected whole. But the supernatural and the
natural systems, as being different in kind, cannot be co-ordinated in a single system. Therefore, so far
as I contemplate the one, the other does not exist for me. But, if the jurist as such must abstract from
the natural order, it is to be feared that the legal prescripts which he sets forth will be far too empty. He
cannot, e.g., talk of legal transactions as juridical facts, for that becomes altogether meaningless if one
may not assume any natural causal nexus. Again, he cannot speak intelligibly of punishment, since a

53
The conflict-solving maxims are part of the legal tool box that judges and legal scholars use to interpret and
apply the legal raw materials. On this topic, see T. Spaak, Guidance and Constraint: the Action-Guiding Capacity of
Theories of Legal Reasoning, 2007, 43-4. For use of lex specialis, see, e.g., Green v. Bock Laundry Machine Co.,
490 U.S. 504, 524-5.
54
This Section can be found, more or less verbatim, in T. Spaak, Naturalism and Non-Naturalism in Legal
Philosophy: Hägerström on Kelsen (forthcoming in S. Eliaeson et al, Axel Hägerström and Modern Social Thought).
55
On the distinction between the ‘world of the ought’ and the world of time and space, see, e.g., H. Kelsen, Das
Problem der Souveränität, 1st. ed., 1920, 99 note 1; H. Kelsen, Reine Rechtslehre, 2nd ed., 1960, 6. For a discussion
of this question, see T. Spaak, Realism about the Nature of Law (forthcoming in Ratio Juris).
 16

‘punishment’ which led to no consequences by way of natural causal connexions could not be called a
punishment. He must simply be left gasping for air! 56

What Hägerström is saying is that we cannot even conceive of the two worlds in question –
the ‘world of the ought’ and the world of time and space – as existing side by side, because it is
necessarily the case that everything that exists is part of the one (and only one) all-encompassing
framework that he mentions. And since, on Hägerström’s analysis, this framework is the
framework of time and space, there can be no place for any other framework, such as a non-
natural world of norms and values.
Hägerström’s critique of Kelsen depends on a certain theory of reality. Unfortunately,
Hägerström’s texts on the subject matter are quite difficult to understand. But following a well-
known (in Sweden) interpreter of Hägerström, the Swedish philosopher Konrad Marc-Wogau, 57 I
shall spell out this theory in three main theses, namely (1) that ‘reality’ means the same thing as
‘determinacy,’ (2) that there is a certain all-encompassing framework in which everything real
can be found and which excludes any other framework, and (3) that this framework is the spatio-
temporal framework.
The first thesis – that ‘reality’ means the same thing as ‘determinacy’ – is meant to elucidate
our common concept of reality and to answer the question, “What does it mean to say that
something, X, is real?” Hägerström’s answer, then, is that to say that X is real is to say that X is
determinate. As Marc-Wogau points out, this thesis is aimed at theories that hold that reality is in
some sense contradictory or indeterminate, 58 and it captures an idea that has fairly often been put
forward in the history of philosophy. 59 This thesis, in my view, catches the idea that underlies the
epistemological postulate, espoused by Kelsen.
The second thesis – that there is a certain framework in which everything real can be found
and which excludes any other framework – is, as Marc-Wogau points out, 60 aimed at so-called
two-world theories, such as Plato’s theory of the forms. Marc-Wogau describes the import of this
thesis in the following way:

Everything determined or real constitutes one connected whole – “das in toto gegebene Wirkliche” –
beside which nothing else is conceivable. This one connected whole contains parts that are
consciousnesses, as well as parts that are not consciousnesses. All determined objects “are comprised”
in that connected whole, but they are included in it in different ways. Certain objects, such as what I
have dreamt or imagined, are included in the connected whole merely as contents of the imagination;
other things, such as what I have experienced in the waking state, and even my fantasies as psychic

56
A. Hägerström, Kelsen’s Theory of Law and the State. In K. Olivecrona, ed., Inquiries into the Nature of Law
and Morals. Trans. C. D. Broad, 1953, 257-298, 267 (originally published 1928 in the journal Litteris 5:20-40 and
81-99.)
57
K. Marc-Wogau, Hägerströms verklighetsteori [Hägerström’s Theory of Reality]. In K. Marc-Wogau, Studier
till Axel Hägerströms filosofi [Studies in Axel Hägerström’s Philosophy], 1968, 85-112; K. Marc-Wogau, Känslans
plats i Hägerströms ontologi [The Location of Feelings in Hägerström’s Ontology]. In K. Marc-Wogau, Studier till
Axel Hägerströms filosofi, 1968, 113-133. But see also P. Mindus, A Real Mind. The Life and Work of Axel
Hägerström, 2009, 46-70; E. Pattaro, I Will Tell You about Axel Hägerström: His Ontology and Theory of
Judgment. Ratio Juris 23:1, 2010, 123-56; B. Petersson, Axel Hägerströms värdeteori [Axel Hägerström’s Value
Theory], 1973, 16-29; and J. Bjarup, Ought and Reality. Hägerström’s Inaugural Lecture Re-Considered. In P.
Wahlgren, ed., Scandinavian Studies in Law, vol. 40, 2000, 11-70, 18-25; J. Bjarup, The Philosophy of Scandinavian
Legal Realism. Ratio Juris 18:1, 2005, 1-15, 2-4.
58
K. Marc-Wogau, Känslans plats, 114.
59
K. Marc-Wogau, Hägerströms verklighetsteori, 91-2.
60
K. Marc-Wogau, Känslans plats, 114.
 17

reality are included in the connected whole, not only as imaginative content. If an object A has this
characteristic in relation to the conception of A, that it is included in the connected whole of reality
“together with” the conception of A, we say that A “exists”. 61

The third thesis, finally – that the framework mentioned in thesis (2) is the spatio-temporal
framework – is aimed at theories according to which reality is spiritual. Marc-Wogau explains
that Hägerström reasoned as follows. 62 If we conceive of our own existence, we must think of
ourselves as being independent of anyone’s conception of us. Moreover, if we assume, as we do,
that some conceptions belong to one person, A, that some other conceptions belong to some other
person, B, and that yet other conceptions belong to a third person, C, etc., we must be able to
distinguish between these different persons, and the only way to do that is to invoke space-time
coordinates; and this, of course, is to presuppose that there is a world of time and space.
I find Hägerström’s theory of reality plausible, especially the view that we cannot allow
ourselves to operate with two or more worlds that we cannot conceive together in one conception,
and this means that, like Hägerström, I am disinclined to accept the view that law exists in the
‘world of the ought.’
But the important question in this context is whether thesis (1) and the assumption that
underlies the epistemological postulate are identical, or at the very least similar. As I intimated in
the beginning of this section, I think they are; and if I am right about this, we must conclude that
in espousing the postulate, Kelsen is unwittingly raising doubts about the cogency of his own
non-naturalism about the existence and validity of legal norms.

61
K. Marc-Wogau, Hägerströms verklighetsteori, 101-2. Translated into English by Robert Carroll. The Swedish
original reads as follows: “Allt bestämt eller verkligt bildar ett sammanhang – ’das in toto gegebene Wirkliche’ – vid
sidan om vilket intet annat är tänkbart. Detta ena sammanhang innehåller som led dels medvetanden, dels led som
inte är medvetanden. Alla bestämda föremål ’ingår’ i detta sammanhang, men de ingår däri på olika sätt. Vissa
föremål, som t. ex. det jag drömt eller fantiserat, ingår i sammanhanget blott som föreställningsinnehåll; andra ting,
som t. ex. det jag i vaket tillstånd upplevt och även min fantasiföreställning som psykisk realitet, ingår i
sammanhanget inte blott som föreställningsinnehåll. Om ett föremål A har denna egendomlighet i förhållande till
föreställningen om A, att det ingår i verklighetssammanhanget ’jämte’ föreställningen om A, så säger man att A
’existerar’.”
62
K. Marc-Wogau, Hägerströms verklighetsteori, 105-7.
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