Consideraciones sobre "derecho y lógica" de Hans Kelsen

Abstract

The purpose of this paper is the analysis of the essay “Law and Logic” by Hans Kelsen, especially his attitude about the logical principles of non-contradiction and what he calls the “inference rule” as not applicable to the law, even in the case of the conflict of norms. With this in mind the thesis that the norm is the sense of an act of will and is, therefore, neither true nor false, is analysed. Kelsen also maintains that only statements which have the sense of an act of thought are either true or false. It is held that these theses make no sense because no rational meaning can be given to the expressions ‘act of thought’ and ‘act of will’.
Using Hintikka´s methods of model sets, an interpretation is built, such that a modally indifferent radical, as it is defined in this work, is changed into a norm. This is done in the following way.
There is a sentence p which is well-constructed formula and a set (n, ñ) which contains two elements n and ñ, called normative values; n stands for “it is a norm” and ñ stands for “it is not a norm”. Next p is given a value based on a function V from p to the set n, ñ assigning one of these two elements to p. The value V (p) of p under V is called “deontic value of p under V”. If V (p) = n it is said that p is a norm under V and p is not a norm under V if V (p) = ñ.
Based on this interpretation Kelsen´s position, which compares the truth of a statement with the validity of a norm, is criticized, the conclusion being that this parallelism cannot exist. Such a parallelism can exist only between the act of stating and the act of creating a norm. In addition several theses related to the issue are analysed with the result that the descriptions of how a legal order works empirically are shown to be correct.
[Ulises Schmill Ordoñez]