Relationship Harts Secondary Rule Recognition Kelsens Basic Norm Philosophy Essay

The British philosopher Richard Wollheim has pointed out that the reason why

Alexander Gottlieb Baumgarten is a very significant figure in the philosophy of aesthetics, as he invented the word ‘aesthetic’ as we know it in the modern day. Baumgarten defined aesthetics thus creating a science of taste. Initially, in his first critique, the Critique of Pure Reason (1781), Kant rejected Baumgarten’s account that aesthetic judgement is a form of taste.

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However, in the Critique of Judgement (1790), it is evident that Kant changed his mind, as it can be seen in his third critique that he indeed was influenced by Baumgarten, as he says that aesthetic judgement is a judgement of taste.

This essay will begin by looking into a general account of Kant’s view on aesthetics, which will lead to examining his third critique – the Critique of Judgement – looking at the first book: Analytic of the Beautiful, of the first section: Analytic of Aesthetic Judgement, of Part I: Critique of Aesthetic Judgement. This will then lead to what Kant describes as the four moments of aesthetic judgement – ‘disinterestedness’, ‘universality’, ‘purposiveness’ and ‘necessity’. The essay will then discuss Kant’s notion of the sublime, looking at the main difference between beauty and the sublime and the types of sublime. This will then lead to the relationship between the sublime and the beautiful according to Kant and then will conclude by examining some criticisms of Kant’s aesthetic judgement.

For Kant, there are two forms of the aesthetic – the beautiful and the sublime. Although, Kant’s Critique of Judgement (CoJ) is the main source of his view on aesthetics, he also published another work on the topic in 1764 – Observations on Feeling of the Beautiful and the Sublime, however, this is considered to be more interested in psychology rather than aesthetics (Kelly, 1998: 27). Douglas Burnham states in his book An Introduction to Kant’s The aesthetic judgement is the focal point in Kant’s third critique. It can be found that he began looking at judgement in the

Aesthetic judgements are essentially judgements of taste according to Kant. ‘The judgement of taste is aesthetic’ (Kant, 1790 in Cahn and Meskin, 2008: 131). When he says judgements of taste, he does not mean taste in sense of eating, but taste in the sense of whether someone has good or bad taste in something. There are four aspects of taste, which are as follows: ‘quality’, ‘quantity’, ‘relation of the purpose’ and ‘satisfaction of the object’. These four aspects through which Kant expresses his aesthetic judgments are known as his ‘Four Moments’, which are most commonly known as:

1. Disinterest 2. Universality 3. Purposiveness 4. Necessity.

Kant describes aesthetic judgements firstly as ‘disinterested’, saying that it only disinterested pleasure that can ground aesthetic judgements. There are three types of satisfaction in ‘disinterest’ – the agreeable, the beautiful and the good. The agreeable is subjective and so not universal; the beautiful is subjective yet demands that others agree and the good is objective but is based on concepts. Kant argues that it is only in the beautiful that we can be free and disinterested (Wenzel, 2005: 142). Kant begins his account of disinterestedness by defining what interest is – ‘). There are two types of interest – one is by sensation (in the agreeable) and the other by concepts (in the good). Sensation has got to do with the existence of a thing. When something exists we can feel it – this is a common notion for everyone as we all say if we can feel ourselves pinching ourselves then we are not dreaming – it is real (Burnham, 2000: 51).

Burnham (ibid: 52) goes on to say that ‘. This is indeed a Kantian claim, as Kant’s notion of disinterest is that of dismissing any interest when judging a thing beautiful. Aesthetic judgements are free from such interests. To be disinterested when judging art, means that interest is and as mentioned before, free from interest. Pure aesthetic judgements are unconcerned with the real existence of the object (Crowther, 2007: 68). Disinterest is at its most basic definition, an attempt to judge something beautiful, however remaining impartial while doing so. Kant talks about pleasure throughout his account of the beautiful, and to judge something aesthetically, a person is gaining a pleasure in something that they are disinterested in. Something must exist for it to be judged aesthetically, however, the judgement itself is a mental experience. As Burnham (2000: 52) says, it is the thing itself that is being judged, through the experiencing of it. This again is reminiscent of Kant’s notion of the thing in itself in his transcendental philosophy.

(Kant, 1790 in Cahn and Meskin, 2008: 134). The second of Kant’s ‘Four Moments’ is that of ‘universality’. Kant claims that in being disinterested about pleasure if the beautiful object, one can claim universal validity to judgement. As can be seen from the quote above, Kant says that a judgement is universal ‘apart from concepts’ (ibid). ‘Universality’ is not based on any concepts. If the judgement has concepts then it is suggesting that beauty is the property of the object (which it often is expressed as) that is being judged and this is not the case. Kant argues that subjective judgements are not universal, for example, if I said that the taste of chocolate pleases me and somebody else said that they did not like chocolate, then both of these are individual responses and both are correct. I do not expect everybody to like chocolate; neither does the other person think that everyone will not like chocolate just because they do not like it. Thus, subjective judgements are not universal. Objective judgements are universal, however. Taking chocolate as an example once more, if one was to say that chocolate was sweet – in relation to it containing a lot of sugar – and another person said it is not, then it is evident that they are not aware of what the other meant; as it is a universal fact that chocolate is sweet (again in relation to it being full of sugar) (Burnham, 2000: 46-47). Therefore, aesthetic judgements are like objective judgments in the fact that they are both universal. However, being sweet is a property of chocolate and beauty according to Kant, is not a property of any object. Kant overcomes this obstacle of beauty becoming a property of the object by using ‘as if’. Kant acknowledges that each individual has their own taste , however, he states that and as mentioned earlier, judging the beautiful is a different story. Following on from saying that each person has their own taste, he says that:

This is a notion he repeats throughout defining and explaining ‘universality’ (in ibid: 134-135) and it is how he surmounts the idea of beauty being a property of an object – he says it is ‘as if’ it is a property of an object, not actually the property of the object! So to sum up ‘universality’, when someone is judging something to be beautiful, they expect that when making this judgement, that when it is judged by others, they are expected to judge it beautiful also and gain pleasure in it (Stanford Encyclopedia of Philosophy, 2005).

Kant’s third moment is that of ‘purposiveness’ (or ‘finality’ or ‘end’, as Kant uses in his CoJ). Kant defines this moment There are three types of purpose: external, definite and internal. External purpose is if the purpose does what it is supposed to do. Definite purpose is what the purpose is meant to do and internal purpose is what the purpose is meant to be like. In this moment, Kant is trying to portray that things are judged to be beautiful if they are perceived to have a purpose, but not a particular purpose – otherwise, the beautiful is something that is purposivenss without purpose. Kant is keeping with the ‘no concept’ (from ‘universality’) here as the purpose of an object is the concept to which it was manufactured (Internet Encyclopedia of Philosophy, 2005). An example of this third moment would be that of nature. Beauty in nature appears to be purposive, however it is of no use to us and it is for this reason that the beauty of nature is pleasurable to us (ibid).

The fourth and final of Kant’s ‘Four Moments’, is that of ‘necessity’. The following is how Kant describes the importance of ‘necessity’ in his CoJ:

Satisfaction of encountering a beautiful object is what Kant calls a necessary pleasure and hence (‘universality’ coming into play again here) a pleasure of all perceivers of it. Aesthetic judgements must be necessary according to Kant. Along with ‘necessity’ comes common sense, however, Kant does not mean common sense in the normal everyday meaning of the phrase, he means the actual senses that we all have (Burnham, 2000: 55) – taste, touch, hearing, sight and smell. Hence, the sense of pleasure that one gets from judging something beautiful is that common sense. ‘Necessity’ is again linked to ‘universality’ in that the ‘as if’ concept comes into play again in his fourth moment. ‘As if’ in ‘necessity’ is linked to that of the condition of ‘necessity’. The condition of ‘necessity’ is what it is saying about the people who are judging an object beautiful. As Burnham (2000: 57) states,

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For Kant, the beautiful is not the only form of the aesthetic – the other is the sublime. The Concise Oxford Dictionary (year: 1214), It is this ‘…awe…’ that differentiates the beautiful from the sublime. The sublime is something that is beyond beauty. Kant defines the sublime as . Kant divides the sublime into two types – the mathematical and the dynamical’ (ibid)). The mathematical is concerned with when we encounter vast, extensive, large objects – size is the key component here – we cannot get our heads around something that is so monumentally extensive. Because of its size, we cannot grasp it sensibly and so it brings about a terror within us. We cannot take it all in at once so it becomes too overwhelming (Burnham, 2000: 91). It contains feelings of exhilaration and being overwhelmed. Take the example of a violent storm; if I am frightened by the storm, this inevitably leads to an interest in saving myself. Once I have expressed an interest, then I cannot experience the sublime as the sublime, like the beautiful, involves ‘disinterestedness’. It is so great in size that we cannot comprehend it as it almost becomes so vast that our imagination runs away with itself (McCloskey, 1987: 98). The dynamical sublime relates to power. It concerns our experience of the mighty, the powerful, dangerous objects or phenomena which we regard from a position of safety. Take again the example of a violent storm – a natural disaster. When we see something like this violent storm we know that it can crush and overpower us, however, we as rational beings can summon up enough moral courage to resist the terror and fear that the storm gave rise to. Summoning up this moral courage is something that only a rational being can do. Because we are experiencing the storm from a safe distance, we know that we are safe so that interest of saving ourselves does not exist and thus we can experience the sublime.

For Kant, the sublime is essentially something we experience (influence of Heidegger here). The Wanderer above the Sea of Fog by Caspar David Friedrich, is probably the best painting that represents Kant’s idea of the sublime. As can be seen below, Friedrich used nature to portray the sublime. The painting illustrates a man standing alone, looking out onto vast scenery of thick fog covering a mountain range, observing it from a position of safety – suggests that this image is that of the dynamical sublime.

Kant begins his Analytic of the Sublime (Book II of The Critique of Aesthetic Judgement) with the similarities between the beautiful and the sublime. What can be seen first is evident – both are aesthetic judgements. Both involve disinterested pleasure; that is when making an aesthetic judgement, the person judging must remain impartial while judging the object beautiful; the sublime – in the case of dynamical sublime, taking the example of the storm again, when experiencing the storm from a safe distance where the person knows no harm can be done to themselves, they can view the sheer effect that the storm is having and thus experience the sublime. Both the beautiful and the sublime also have a universal aspect to them – the force of the storm and looking at its impact from afar, should indeed have the same effect on everyone. However, it can be established that the third ‘moment’ – ‘purposiveness’ is not in common to the two types of the aesthetic. As Burnham (2000: 90) mentions, Kant describes pleasure in the introduction to the CoJ, as’ However, the sublime does not allow an achievement of an end.

Kant’s aesthetics has been criticised by many a philosopher since. Gadamer (who was highly influenced by Heidegger) criticised that Kant’s aesthetics was ultimately subjectivist. Gadamer stresses that Kant’s aesthetics is not linked to a proper knowledge. Gadamer says that Kant limits his aesthetic judgement to mere experience of the pleasurable. He says that by limiting our experience through the ‘four moments’, it does not challenge us enough in making the judgements [1] . Many critics have also tried to criticise Kant on what disinterested pleasure actually is. It has also been criticised that Kant’s notion of the aesthetic judgement say nothing about art as a developing concept.

This essay has examined Kant’s ‘four moments’ of aesthetic judgement of the beautiful, looking at aesthetic judgements as being made by a person who must remain impartial and not interested in the object of judgement; seeing all aesthetic judgements as ‘universal’, that is that if an aesthetic judgement is made then everyone will agree. Each aesthetic judgement is made with purposive but without an end in sight and all aesthetic judgements are necessary. It has then gone on to discuss the sublime, looking at the two types of sublime – the mathematical and the dynamical; the mathematical concerning that which is so extensive in size, it overcomes us and the dynamical being that we are observing something very powerful from a position of safety and so are able to experience the sublime. The essay then looks into the relationship that the sublime and the beautiful have by looking at the similarities and differences that are in each; similarities being that they are both forms of the aesthetic, they are both reflective judgements, they both involve ‘disinterestedness’ and are both ‘universal’. This essay has concluded by looking at a few criticisms of Kant’s aesthetics looking at Gadamer (and Heidegger) who thought that Kant’s view on the aesthetic was too subjectivist and has also looked at how Kant’s aesthetics shows nothing of how art in the aesthetic judgement as a developing concept. It is evident that Kant indeed influenced many aesthetic philosophers after him as his aesthetic theory can be seen in many a philosopher of art since then, both of influence and criticism.


defining law has become problematic is due to the fact that it sought to achieve different purposes. He states that jurists have not only been able to not clearly distinguish the definition of law but also a criterion for the validity of law and a much more general method for the criterion of validity of any legal system. [3] Now, whether a law is valid or not can be appropriately tested against the constitution of that country but trying to find out whether there is an existence of a formal general criterion that can be tested in any legal system is a difficult proposition because the “empirical characteristics” varies from one legal system to another. This is exactly what Bentham and Austin in the nineteenth century and Kelsen and Hart in the twentieth century have tried to find out with varying degrees of success. [4] A serious limitation of this method is that one cannot say with certainty that a particular criteria which has been selected can be applicable to the actual content of other legal systems, since (as said earlier) these have empirical characteristics not necessarily capable of being confined within the particular straight jacket it is desired to impose upon them.

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Kelsen wrote extensively during the 20th century. He believed in the normativity of law [5] . The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain modes of conduct. It expresses not what it is, or must be, but what to be, given certain conditions [6] . Its existence can only mean its validity, and this refers to its connection with a system of norms of which it forms a part. In other words, they are regulations setting forth how persons are to behave. It cannot be proved to exist on facts [7] , but simply to be derivable from other norms, and is, therefore valid in that sense. In practice, as norms are concerned with human conduct, there must be some ultimate norm on which all the other norms rest.

Unlike moral norms, according to Kelsen, legal norms are always created by acts of will. Such an act can only create law if it is in accord with a ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher [8] ‘ legal norm, in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that authorizes its enactment [9] . Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed [10] , and this is, what Kelsen called, the Basic Norm. He also said that in tracing back such a ‘chain of validity’ one would reach a point where “a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution.” [11]

So far as the legal system is concerned this basic norm must be extra-legal, since it does not rest upon another legal norm. But Kelsen also point out that the choice of the basic norm is not arbitrary and he suggests that it must be selected by the legal scientist on the principle of efficacy, i.e. to say that the legal order as a whole must rest on a hypothesis that is by and large efficient, in the sense that people conduct themselves in compliance with it. [12]

On the other hand, Hart’s rule of recognition also determines the criteria which govern the validity of the rules of the system. There are, according to Hart, two minimum conditions necessary and sufficient for the existence of a legal system. These are “those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and its rules of recognition specifying criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials [13] .”

The first condition has to be obeyed by private citizens and they may obey for any reason. The second condition must also be satisfied by the officials of the system and they must regard the secondary rules as general principles of official behaviour and assess decisively their own and each other’s deviations. They must accept the rule of recognition and observe them from, what Hart calls, ‘the internal point of view [14] .’

Hart’s main idea is that there are two rules of recognition – primary and secondary. According to his primary rule of recognition, he says that in a society there are certain rules which tell people to do or not to do certain things. Thus they lay down rights as well as duties. These primary rules [15] are to do with physical matters. [16] The primary rules include those which prescribe or prohibit certain forms of action and those which enable individuals to realize their wishes with the help of specified procedures creating rights and duties enforceable at law, e.g. by making a contract or will. Secondary rules, on the other hand, presume the existence of primary rules. They provide ways of ascertaining what the law is, of introducing new laws or changing or abolishing old ones and they define the procedure to be followed in applying the laws. In other words, secondary rules are the rules conferring or defining legislative and judicial powers.

Hart has presented the notion of law as a union of two kinds of rules: one enjoining conduct, the other conferring powers. Such a conception must concern itself first with the question of why legal rules are binding, so Hart proceeds to examine the matter of legal obligation. He then discusses the need for combination of two kinds of rules in a working legal system that serves the need of a society that has advanced beyond its most primitive stages. Finally, he addresses the matter of legal validity and the idea of a rule of recognition is developed to provide a criterion for distinguishing false claims from true ones.

Hart maintains that in this combination of the two types of law rather than in the notion of a coercive order is to be found ‘the key to the science of jurisprudence [17] ‘. In other words, in a legal system, in addition to the primary rules there are also secondary rules by the help of which it is possible to decide whether something is a primary rule or not and how it is to be interpreted and adjudicated upon. The notion of a sovereign legislator in the sense of a legislator unrestricted by law is not required. [18] What is needed is a ‘rule of recognition’ that is a rule providing the criteria for identifying the primary rules. This rule of recognition is ultimate in the sense that there is no further rule to assess its own validity. [19]

Thus, after reading and comparing both Kelsen and Hart, it gives one an idea that there are similarities as well as differences between Kelsen’s basic norm and Hart’s rule of recognition.

The rule of recognition has some resemblance to Kelsen’s Basic Norm. The main difference is that while Kelsen thinks the validity of his basic norm has to be assumed or postulated, Hart considers that his rule of recognition can be ascertained by reference to actual practice.

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Hart admits that the rules of recognition, though not overtly expressed, can show the way in which particular rules are identified by the courts and other officials. Whether a primary rule is ‘valid’ really amounts to saying no more than that it passes all the tests provided by the appropriate rule of recognition. [20]

Like Kelsen, Hart appears to recognize that such rules may themselves be formed on a hierarchical pattern and that, therefore, the validity of one or more of these rules may depend upon some higher rule of recognition. It is here that we see some traces of Kelsen’s argument.

But the question as to the status of any ultimate rule since the only point is whether it is accepted by those who generate the system. There is therefore no assumption of validity but its acceptance is simply factual.

The rule does provide criteria of validity within the system and therefore it is worth calling such a rule, law: there is however also a case for calling it fact insofar as it depends for its existence upon actual acceptance. This fact of acceptance may be looked upon from two points of view, namely, from the point of view of the external statement of fact that the rule exists in the actual practice of the system, and also from the internal statements of validity which may be made by those in an official capacity who actually use to identify law.

Hart also points out that, although the notions of validity and efficacy may be closely related in a legal system, they are by no means identical. He says that if there is so little efficacy in a whole system of law, then it would be really pointless to attempt to assess what actual rights and duties might exist thereunder or the validity of particular rules.

As to the question whether every system of law must be referable to some basic norm, Hart rejects Kelsen’s view that this is an essential assumption of all legal systems. [21] All that it means, where a system lacks a basic norm, is that there will then be no way of indicating the validity of individual rules by indication to some final rule of the system.

There are also interesting similarities and differences between Kelsen’s basic norm and Hart’s rule of recognition. Both the rule of recognition and the basic norm rest on the idea of chains of normative validity; a particular legal norm is only valid because it has been authorised by a more general or more basic legal norms. The chain of validity must end somewhere; with a foundational norm that carries no further justification, other than its acceptance or it’s having been presupposed. It is again important to note the difference of approach and methodology here: hart’s theory is meant as an analytical description of actual practices, while Kelsen sought a theory purified even of sociological observation.


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