William Conklin

This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity.

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada.