8. Ideology and legal normativity

8.1. Words to remember

promises	надежды
bootstrap	бутстрепинг - затягивание поясов, основание и развитие своего бизнеса при очень незначительном финансировании извне или полном его отсутствии.
artifice	хитрость, уловка
educator	«учитель»
further	поддерживать
coercion	принуждение

8.2. Read the text.

Some conventions, such as the convention of promises, clearly work to everyone’s advantage, and so the sense of morality naturally emerges from the perception that those conventions serve the public interest. A sense of morality cannot arise so easily when the common benefit of a convention is not clearly perceived. For instance, a political convention can differentially promote the interests of some groups at the expense of others’.

Though it is a contingent matter whether a political convention serves the common benefit or rather the interests of some groups, and it is likely that all political conventions promote a mix of both, the bootstrapping justification of political and legal obligations is more difficult than that of promissory duties, which are obviously beneficial for the people at large. We can therefore predict that the “artifices of educators and politicians” will be of critical importance when it comes to the validation of political commands.

The preceding remark can also be stated by appeal to the notion of “ideology.” When a convention is exploitative in that it furthers the interests of some people instead of furthering the common good alone, the emergence of a sense of morality critically depends on the working of a political ideology. By “ideology” I mean any system of concepts, meanings, or beliefs that objectify relations of political domination or coercion. Objectification can take various forms. Sometimes it conceals the rulers’ orders by presenting them as features of a static, objective, and natural or supernatural reality.

Rationalistic ideologies also seek to legitimize state power by turning the subjective will imperatives into objective practical claims. Ideological objectification protects political domination from rational criticism and intellectual resistance.

Consider now Kelsen’s actual argument, which incorporates the basic norm:

1. It is necessary that law is objectively valid.

2. For any social coercive system L to be objectively valid, L’s first historical

norm must be objectively valid.

3. There are objective values.

4. L’s first historical norm is objectively valid (basic norm).68

5. Therefore, L is law.

Notice that the basic norm presupposes in turn what we could call the “metabasic

norm”, in the absence of which the whole arguments wrecks havoc. Now Kelsen must consider point in this context as a fictional proposition, because, as we said, he was a noncognitivist as regards moral language. This means that the jurist either mistakenly believes that law could possibly be valid, or pretends to believe that law could possibly be valid. If there are no objective values, law could not be objectively valid, and therefore the epistemological presupposition contained in the basic norm would necessarily be false.