2. Kelsen and the Problems of the Social Fact Thesis

The social fact thesis stands in tension with the is-ought-distinction if it identifies law with a set of facts. Kelsen’s theory instead stressed the normativity of law, due to which law belongs to the realm of the ought and not to the realm of the is. Insofar he is an opponent of the social fact thesis. However, there are other social fact theses, some of which fit to Kelsen’s theory. This holds, in particular, for the theory that norms are the meanings of social facts. Such versions too are confronted with serious problems as they cannot explain the legal validity of both law-creating norms as well as the law of non-contradiction and other fundamental rules. The social fact thesis is hence either too weak, if it demands just the existence of any or some social facts, or too strong, if it demands an accordance of facts and norms. So even for positivism this thesis is not tenable.