On the inapplicability of logic to norms. Coincidence between Kelsen and Atienza

Abstract

The article examines Kelsen’s thesis on the inapplicability of logic to norms and argues that, rather than establishing an incompatibility between the Pure Theory of Law and Atienza’s theory of legal argumentation, both approaches actually coincide in identifying the limits of deductive logic in relation to normative creation. Through a systematic analysis of Kelsen’s works—particularly Pure Theory of Law (1960), Derogation (1962), and General Theory of Norms (1979)—the author shows that the impossibility of deriving a norm through a syllogism does not imply a rejection of legal rationality but stems from the very nature of the norm as an act of will that must be produced in a specific space–time context. Methodologically, the article follows Atienza’s distinction between two issues: (1) relations among norms are not logical because contradictory norms may coexist within a legal system; and (2) the existence of an individual norm cannot be inferred from a general one, since its validity depends on the decisional act of a judge. The objective is to clarify that both Kelsen and Atienza agree that logic applies only to legal statements (descriptive propositions), not to norms as acts. The study concludes that legal argumentation theory does not contradict Kelsen’s framework but rather extends the reflection on the limits of judicial syllogism.