STEWART Critical Legal Science of Kelsen

Cardiff University
The Critical Legal Science of Hans Kelsen Author(s): Iain Stewart Source: Journal of Law and Society, Vol. 17, No. 3 (Autumn, 1990), pp. 273-308 Published by: Wiley on behalf of Cardiff University Stable URL: http://www.jstor.org/stable/1410155 . Accessed: 19/06/2013 11:23
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JOURNALOF LAW AND SOCIETY VOLUME17,NUMBER 3, AUTUMN 1990
0263-323X$3.00
The CriticalLegalScienceof Hans Kelsen

IAINSTEWART* Fearingthe outcomeif the secretpolicefoundit in his house, the sackedlaw in a bananaskinandploppedit into hisold servicerevolver professor wrapped the Rhine. He escapedwith his familyto Prague,where,at his firstlecture, fascists packed the hall and shouted: 'Everybodyexcept Jews and comwerebeatenup. He continuedto munists,out!'Thosestudentswho remained teach, under police protection. Plans of a plot to assassinatehim were discovered cleaner.He broughthis familyout, to the United by a university Statesof America, wherehe was alloweda chairof politicalsciencebut not of law.1 Hans Kelsen, advisorto the Austro-Hungarian Emperor,author of the AustrianConstitution, and havingexperienced manykindsof academicand victimization of all political major legal theorists the most bitterly with realities - is an implausible perpetrator of acquainted political 'formalism'.2Yet his main creation, the 'pure theory of law', is both world-wide as a majortheoryof law3and placedin the 'bornso recognized beautiful'basket as the paradigm case of formalistic irrelevance.4As Gurvitchformulates the charge:
According to this doctrine, law, being nothing but a pure norm, admits only a normative and formalistic method of study, every other method being destructive of the very object of research. That is why sociology cannot study law and the 'science of law' cannot take account of social reality.5
Even for so analyticala mind as Hart, the pure theory pays far too little attentionto thecircumstances underwhichlawsarecreated and'whether they are recognised as authoritative and by whom'.6 Yet, to Kelsen, of all chargeslevelled against the pure theory, that of formalism was the 'stupidest'.7 I will arguethat,whenKelsen'sphilosophical is understood, thequestionof formalism on severallevels. standpoint emerges First, in relation to its subjectmatter the theory is intended to be anti*Senior Lecturer and Head, School of Law, Macquarie University, Sydney 2109, Australia
This paper is the fourth in a series dealing with the work of theorists who have substantially influenced contemporary understanding of law and society. The series will be of interest to both students and specialists.
273
formalistic. Second, within the chosen kind of philosophical framework a general theory is necessarily formalistic. Third, arguably the philosophical framework itself is formalistic and communicates this formalism to the theory. While recent interest in the pure theory is found mainly among analytical philosophers," as an attempt to bring the study of law to the level of a critical legal science - a project, moreover, that fell apart in Kelsen's own hands - the pure theory's aims and fate are very relevant to attempts to construct a critical legal science today. Yet there is no survey of Kelsen's work as a whole, in any language.9 The task of survey is daunting. Kelsen wrote over 300 books and articles, in three languages.'0 Most that are not in English have not been translated and the existing translations vary in reliability (although their formulaic style is not due to the translators)."I Writings about Kelsen's work form an equally long list and are in several languages.'2 Attention here will focus on Kelsen's writings on legal theory, leaving aside his many works on justice, public international law,'3 or Austrian law. Nor will the work of other members of the 'Vienna School' be considered on its own account.'4 No single work of Kelsen's contains a final overall statement of the pure theory. The last overall statement is the second edition, published in 1960, of Reine Rechtslehre, translated as Pure Theory of Law. By 1962, however, the theory's keystone, the concept of a 'basic norm', had fallen apart in Kelsen's hands. Rather than restate the theory accordingly, he tried to save the concept in weakened form. Then he moved up a level, to general theory of norms. He died in Berkeley, California, on 19 April 1973, leaving a rambling text published posthumously as Allgemeine TheoriederNormen(General Theoryof Norms). Although this book reformulates many of the arguments of Reine Rechtslehre,embracing the new version of the 'basic norm' concept, it neither offers a completed general theory of norms nor locates the pure theory of law within such a theory. Nevertheless, it comes close enough to doing these things for an article such as this to outline Kelsen's theoretical work according to such a pattern. In doing so, I will avoid questions of the development of the pure theory except so far as they impinge on understanding its final form. KELSEN'S BACKGROUND Hans Kelsen was born in Prague on 11 October 1881 and was raised in Vienna. His parents were Jews of the German-speaking working class. The boy dreamed of taking a degree in philosophy, mathematics, and physics. The combination of his social background with such a degree, however, pointed to a career in schoolteaching and, without enthusiasm, he enrolled at the University of Vienna in law. That he could not become a philosopher, he regretted for the rest of his life. After obtaining his doctorate, Kelsen became interested in the nature of legal norms and wrote a higher doctorate on this and other major issues in legal theory,' 5 then began to teach at the university. Cosmopolitan, bureaucratic and rich as its cream cakes, dual-imperial 274
Viennabestrode centralEuropewitha web of lawsthata medleyof classand ethnic conflictswithin and the Great War without would shred. Political thoughtrang the changesfrom feudalismthroughconstitutional monarchy and liberalismto socialism;fascismwould follow. In religion,catholicism dominated andjudaism.Thisunstablesocialvarietypressured protestantism liberal high culture toward relativism:into neo-Kantianism,logical positivism, empiriocriticism, physical relativitytheory, psychoanalysis,tonal music,and satire. Relativism abstraction: to copewiththe variety,theoryneeded encouraged to risebeyondit. At the sametime,the relativity was farfromstatic:the deep historicalconsciousness that throughthe nineteenthcenturyhad expressed German plans for unity bled over into disintegratingAustria-Hungary. to Marx'sinversion, HavingfoundHegelboth too feudaland too vulnerable liberalswent back to Kant. Yet the returncould not be German-speaking as Hegelhadpointedout, wastoo weakfor simple.Kant'ssenseof historicity, an ageneedingto understand of socialstructures. A first deeptransformations between and'science' then,wastherelation problem, historicity (Wissenschaft - the Germanword refersto any kindof systematic enquiry). Linkedwith this was a further 'is' and 'ought'.Kant problem,concerning maintained the distinctionbetweentheoretical reason,which stateswhat is, and practicalreason,which states what ought to be. Feudaland especially catholic idealism had preached their unity, so that whatever exists is from Hume's presumablygood. A key principle of the Enlightenment, Scotland into the German-speaking to was divide lands, them, so that of whatis andof whatoughtto be aredifferent statements kindsof statement, and accordinglyneither can follow from the other. A strong sense of on the otherhand,includesa stresson practice,henceon the cohistoricity, existenceof fact and value, fact and meaning- whichis next to reasserting theirunity. The problem of reconciling historicismwith the is/ought dichotomy produced a powerful debate on the identitiesof the sciences. The neobetween two kinds of Kantians, as they came to be called, distinguished science:the naturalsciences(Naturwissenschaften) and the sciencesof mind relationbetweenreasonand history,the formerwere to be concernedwith materialfacts, the latterwith meanings;or the formerwith regularities, the latterwithindividual events.In termsof separating 'is'and'ought',theformer wereto be concerned withmaterialfacts, the latterwithvalues. Each way of makingthe distinctionalso had two versions:whetherthe difference their lay in the perspectives throughwhichthe sciencesapproached matter or in the subjectmatteritself. Kelsen took the latter view, subject holdingthat law is evidentlyone of the 'social orders'- that is, systemsof its studycannotbe a naturalscience.16 It might 'oughts'- and that therefore
then be a science of mind or culture. But, in that case, if the aim is to describe the 'oughts' of law, can there be such an 'is' of'oughts' without infringing the rule against mixing 'is' statements and 'ought' statements? 275 (Geisteswissenschaften) or culture (Kulturwissenschaften).In terms of the
This problem was either abolished or made worse by logical positivism, which denied the very existence of practical reason. It held that only factual statements could be rational; value statements were merely emotive. This left no room for a science of'oughts', hence apparently for a science of law. Or, if a science of law was possible in these terms, could it be fully compatible with the other sciences within the logical-positivist doctrine of 'unified science'? Such debates challenged the discipline of law to reforge its identity as a science. Kelsen was outstanding among those who took on the challenge. KANT AND THE PURITY OF 'IS' FROM 'OUGHT' In constructing his legal theory and even when attempting a general theory of norms, Kelsen is concerned less to philosophize than to clothe his theory in elements of philosophy bought off the peg. Such an attitude is neither wrong nor even inferior; enquiry has to stop somewhere in the refinement of premisses as well as in the search for evidence, if it is to bring the two into relation.17 All the same, the cryptic nature of many of Kelsen's indications of his philosophical debts makes it hard to ascertain whether the clothes he bought fit well or even match. A starting point is that Kelsen many times classifies himself as an heir of Kant. The first edition, published in 1934, of Reine Rechtslehrebegins:
It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientificelements and conscious of its particularcharacter because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raisejurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine science, a science of mind [GeistesWissenschaft].'8
In the passage out of 'naive, prescientific thinking',19 Kelsen finds Kant only half-heartedly critical20and tests the capacity of a range of neo-Kantian and related philosophical tendencies - principally the ideas of Rickert, Hermann Cohen, and Husserl.21Yet he declines to get closely involved in these debates, preferring to count it undeniable that the reality of law is not simply natural but also involves meanings, all or most of which are oughts, and then to go his own way.22 The area in which he draws the border is indicated by his view that the idea of legal science as a science of mind does not suppose complete free will, since the idea of responsibility presupposes causal constraint.23 Nonetheless, Kelsen appears to adopt two key Kantian conceptions: 'critique' and 'purity'. Kant's main books offer 'critiques', as he terms them, of modes of thought. He understands 'critique' not as a merely negative exercise but as a process in which a mode of thought is to be made as coherent as possible. The focus is on the mode of thought as such. There is no appeal below thought to experience, nor above thought to religion. Critique is reflection on the very forms of a mode of thought, with the aim of maximizing the mode's capacities. Kelsen 276
embarkson a critique,in this sense,of existinglegal theory,laterof existing generaltheoryof norms. to the logicallaw of Kant'sidea of purityfollows fromhis firmadherence it else. and not of each is what is that Any statement something thing identity, it as what it is and without admixture. must state Such a therefore, something, statementwill be 'pure'.Kelsenis concernedwith such purityin two major thefirstis purityof description directions: (the realmof 'is')fromprescription realm of (the 'ought'). Following Hume,24then Kant, but with still greateremphasis,Kelsen of whatis andof whatoughtto bemustnot bemixed.25 insiststhatstatements For Kelsen, the differencebetween'is' and 'ought' is simply obvious and now in terms cannotbe explained. Oneandthesameentitymaybe considered that or now in of it exists does not and terms of'is', exist, 'ought',thatit ought or oughtnot to be;butthetwo 'modes'mustnot be mixedtogether. Theentity that may be consideredin terms of either mode is a 'modallyindifferent the two modes.To say that an 'is' corresponds to an substratum' underlying 'ought' for example,that a person'sbehaviourconformsto a normis to state a correspondence not betweenthe behaviourand the 'ought'form but betweenthe behaviouras content of an 'is' and as content of an 'ought'. Neither mode, however, has any necessarycontent: for example, a legal containany moral'ought'.26 'ought'does not necessarily Oneof thegrounds on whichKelsentakesthisstrongviewis thathemakesa fromKant,in the directionof logicalpositivism.Kant gives majordeparture reason two roles: theoreticalreason concerns description('is') and is a functionof thought,while practicalreason concernsprescription ('ought') and is a functionof will. Kelsen,however,denies the existenceof practical reason.27 Thoughtand will are 'two quite different mentalfunctions'.There are 'acts of thought',whosemeaningis a descriptive statement,and 'acts of will', whose meaningis an ought. Although the two kinds of meaningare boundup witheachother,in thata statement is usuallymadewitha purpose and an ought containsa conceptualization of the behaviourto whichit may apply.28 The meaningsmay be expressedin variousways - as writtenor spoken words,or as a gesture(for example,hands raisedin voting, a police officer directingtraffic)or other non-verbalkind of symbol (for example,a traffic suchas the normof derogation light);or even as being'tacitlypresupposed', that a laternormderogatesfroman earlier.29Kelsen'smeaningof 'ought'is broad:he specifies thatit shallincludenot only commands or orders,but also authorization,permission,and derogation.30Consideredgrammatically, words expressingan ought will often be in the imperativemood. But no verbal formulais necessaryand sometimesthe verbal form can particular mislead:especially,an ought may be expressed in the indicativemood - for withimprisonment.'31 Yet thefactthatis the example,'Theftwillbe punished
act of thought or will is not the same as the fact that is the mode of expression: for example, an act of will, whose meaning is an ought, is not the same as a speech act expressing that meaning.32 277
All the same, the difference between'is' and 'ought' is not betweentwo modes of reason but between reason itself (correspondingto Kant's theoretical reason,or theoretical aspectof reason)and emotion.This strong affectswhat is admissibleas division version of the 'is/ought' particularly defined as a rationalenterprise, If 'science(Wissenschaft)'. scienceis already in canbe discussed sciencewhilequestions of whatis, beingrational, questions of what ought to be, since they are irrational,cannot. Indeed, to allow discussionof 'ought' to affect discussionof 'is' would be not science but 'ideology'.Sciencemustbe keptpureof ideology.33 A first task is to fence legal science against other sciencesdealing with connected subject matters - psychology, sociology, ethics, and political theory.The puretheoryof law
undertakes to delimit the cognition of law against these disciplines, not because it ignores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines (methodological syncretism) which obscures the essence of the science of law and obliterates the limits imposed upon it by the nature of its subject matter.34
SCIENCEOF OUGHT At thispointit willbe helpfulto makeexplicita conceptthatin Kelsenis only theconceptof a scienceof ought.Thismakesit possibleto identifyin implicit: Kelsen's perspectivethe following hierarchyof sciences. First, science in generaldividesinto sciencesof natureand sciencesof mind.Second,sciences of mind - the neo-Kantianconcept being modifiedto accommodatethe - divideinto sciences can be rational denialthatthe practical logical-positivist of ought.Third,sinceonlysomeoughtsarevalid(seebelow), of is andsciences of norms,whichKelsen of oughtdivideinto sciences hencearenorms,sciences andsciencesof otherkindsof ought.Thenormative calls'normative sciences', to are'pure'in thesensethattheydescribe sciences oughtswithoutsubscribing them.Fourth,normativesciencesdivideinto legal science,the or evaluating study of legal norms,and ethics, the study of moral norms.Thus the pure scienceof law.35 theoryof law is normative is: how, in theseterms,can therebe a science(a Kelsen'sgreatest difficulty of 'oughts'?A strong versionof the is/ought division rationaldescription) had concluded)scienceof impliesthat therecannot:that either(as Stammler ought must be confined to practical reason, as systematicevaluation of if reasonis onlycognitive,anyscienceof or (asin logicalpositivism), oughts,36 mind that can describeacts of will but not their meanings,can only be to go all the waywithlogicalpositivism Yet Kelsenis unwilling psychology.37 but they are not and reduceoughtto is.38For him, oughtsmay be irrational he foundanotherresource. illusory.In neo-Kantianism
In Kant's view, we know things not as they may be 'in themselves', independently of knowledge, but only as they appear to us. (The question of how we can then be sure there is any reality at all 'out there', independently of 278
our knowledge, plagued the neo-Kantians.) The appearance of things to us is as material provided by the senses that is moulded under forms of thought: material as so moulded is a 'concept'. Most of the forms (moulds) are constructed by us. But the most universal forms, which Kant calls 'categories', are innate. One of Kant's 'categories' is that of'is (Sein)', under which descriptions are constructed. How is it possible to state the is of an ought? Now, Kant had declared that his list of 'categories' was not closed. Very well, said the neoKantian sociologist Simmel, in working out how there could be description of social values: let us add a new category, 'ought (Sollen)', under which it will be possible to describe oughts.39 Kelsen adopts Simmel's new category.40 Since, in Kant, the operation of a category is mediated through a 'schema (Schema)', Kelsen has the category of ought operate partly through the 'schema' of 'norm'.41The new category and schema permit a kind of science in which norms may be described without any admixture of evaluation. Kelsen calls this 'normative science'.42Sociology, as well as psychology, ethnology,43 and history, are to concern themselves with understanding behaviour in terms of causality, including motivation. Where behaviour is related to meanings that are norms, those meanings are to be understood by the normative sciences of law and ethics.44 The word 'norm' (from Latin, norma)often means descriptive regularity, as when one says that a type of behaviour 'is the norm' (compare 'is normal'). Kelsen does not use this sense. A second sense is prescriptive:when one speaks of 'social norms', one means by a 'norm' any kind of prescription. For this concept, Kelsen prefers to speak of an 'ought'. Kelsen then speaks of both 'ought' and 'norm' in two senses: as subject matter of science and as descriptive construct in science. In the first sense, he refers simply to an ought or a norm. In the second sense, he speaks of a 'proposition (Satz)'. Thus an 'ought (Sollen)' is described in an 'ought proposition (Sollsatz)', a 'legal norm (Rechtsnorm)' in a 'legal proposition (Rechtssatz)' and a 'moral norm (Moralnorm)'in an 'ethical proposition (Satz der Ethik)'.45This is Kelsen's formal terminology, but, since in Kantian terms a subject matter is known only as it appears, he usually speaks of an 'ought' or a 'norm' when he means the ought or norm as it appears in a proposition. This double usage is confusing, but Kelsen defends it as a widely established practice: 'logic (Logik)', for example, is both the operation of a kind of norm and the study of their operation46 (compare, in English, 'law'). With the word 'normative', however, Kelsen is more selective. While its usual meaning is prescriptive, corresponding to his sense of 'norm' as subject matter, he uses it in a sense corresponding to his sense of 'norm' as description. Normative science, under the category of ought, constructs norms in the second sense as descriptions of norms in the first sense.47 Next, Kelsen stresses that, since natural science describes facts while normative science describes norms, the two forms of science must operate according to different principles. Natural science operates according to the principle of causality. By analogy, Kelsen maintains, normative science can 279
operate according to a principle of 'imputation (Zurechnung)'. A cause is conditionally related to an effect as its consequence - if A (cause) is, then B (effect) will be; B is caused by A. Thus: if (A) a brick hits Jane's head, then (B) Jane will be injured. Likewise, a delict48 can be conditionally related to a sanction as its consequence - if A (delict) is, then B (sanction) ought to be; B is 'imputed' to A. Thus: if (A) John threw the brick, then (B) John ought to be imprisoned. To speak of 'imputation' here is similar to speaking of responsibility - here, that John is responsible for the damage to Jane.49 The legal scientist makes the imputation, just as the natural scientist understands a physical connection as causal. Imputation means 'every connection of a human behaviour with the condition under which it is commanded or prohibited in a norm'.50 In the case of morality, however, imputation is a two-stage affair: while a legal norm is attached directly to a negative, coercive sanction (such as imprisonment), a moral norm is attached directly to a positive, noncoercive sanction (such as the expression of approval) and indirectly to the negative form of that sanction (such as the expression of disapproval); imputation, concerning a moral norm, has to reach to the negative form. Pursuing the analogy, Kelsen holds that, as in natural science causal relations may be stated in a 'law of nature (Naturgesetz)', so in normative science relations of imputation may be stated in a 'law of law (Rechtsgesetz)' or 'law of morality (Moralgesetz)'; the legal or moral form, like the natural, being formulated probabilistically.5' However, the analogy is only partial: while the law of nature refers to unending chains of causation, the law of law or of morality refers to isolated relations.52The law of law or of morality is the form taken by the legal or moral proposition.53 The distinction between causal sciences, grounded in the principle of causality, and normative sciences, grounded in the principle of imputation, cuts across the other distinctions between sciences. Accordingly, Kelsen can divide the social sciences into causal social sciences, such as sociology, and the normative social sciences, such as legal science and ethics.54 In relation to law, if social sciences follow the principle of causality alone, they will fail to take account of norms; if they also follow the principle of imputation, they will to that extent be legal science or ethics.55 Other norms and their study belong to logic and technology (Technik). Since 'ought' is not a relation, a norm is not a relation between a means and an end. A relation between a means and an end is causal. An act of will, which is a psychological fact, may be a means, but the meaning of that act, which is an 'ought' or norm, cannot be a means or an end. The question 'What ought I to do?' belongs to legal science or ethics; the question 'What must I do, to realize a particular end?' belongs to technology.56 Now, it is far from clear in what sense the 'proposition' is descriptive. For, in addition to saying that the differencebetween norm and proposition is that the latter describes the former, Kelsen gives as examples the difference 'between a law published in the official legal gazette and a scientific commentary on that law' or 'between the Criminal Code and a textbook on criminal law'.57 The 280
statea difference withoutreallydefining it. Kelsenalso saysthatthe examples be called but maintainsthat this 'non'interpretation', descriptionmight authentic',merely descriptiveinterpretation by the legal scientistis quite different in principle from the legal organ's 'authentic', law-creating If the propositionis formulated as a 'law',then: interpretation.58
It is thetaskof the scienceof lawto represent thelawof a community, thatis, thematerial in thelaw-making in the formof statements to produced by thelegalauthority procedure, theeffectthat'if suchandsuchconditions arefulfilled, thensuchandsucha sanction shall follow'.59
The spiritappearsto be thatlegalscience,constructing not legalpropositions legalnorms,'hasto knowthelaw- as it werefromtheoutside- andto describe it'.60 Legal science'endeavours to comprehend its object "legally",namely fromthe standpoint of thelaw'- thatis, as a legalnormor as contentof a legal norm.61 is equallyambiguous.Up to the 1930s,Kelsenunderstands it 'Imputation' as a category in the Kantian sense, on analogy with Kant's category of the categories are causality.UnderKantiancategories, realityis constructed: not generalizationsfrom experience.In Hume, however, causality is a generalizationfrom experience.And Kelsen moves toward a Humean of causality,at the same time as denyingthat knowledgeof understanding the analogueloses its parent.62 oughtsis experiential: It appearsthat, in Kelsen'sconceptionof science,more than one idea of is involved.At least threeideas of description wereavailableto description him: they may be distinguished,if rather metaphorically, as 'refractive', and In 'interpretive'. objective-idealistphilosophy, such as 'reflective', is it believed that the basisof realityis idealformsexistingprior Christianity, to knowledge. The particular entitiesin the worldare only refractions of the ideal forms- for example,a particular man existsonly as a refraction of the idealman.To describe a particular is to the as, for entity reproduce refraction, a biblical scholar a refract in the Bible. The method is example, may meaning In materialist the basis of is To exegesis. philosophy, reality physicalthings. describethem is to have a reflectionof them in the mind. The method is In both refractive observation. and reflective the construction of description, is determined reality supposedly by the formof the original. Onecanobserve bothinanimate andanimateobjects,suchas humanbeings in their behaviour.But a science of mind is not concernedsolely with understood behaviour, causally.The neo-Kantiansociologyof Max Weber, for example, insists that one must first observe the behaviourand then understand it accordingto the meaningsthat the actors attach to it, which Webertermsthe 'subjective meaning'of the behaviour- distinctfrom the constructed in science.63The method is interpretive 'objective'meaning This differs from understanding. exegesisin that, althoughin both cases the matter is in the actor'sframeof subject meanings, interpretive understanding referenceneed not be adopted by the observer,who may reconstructthe
actor's meanings in any of a theoretically infinite number of alternative frames. 281
Now, if the differencebetween norm and proposition is only that the norm is created by legal authority while the proposition is not, the proposition reproducing the norm will remain within the legal authority's frame of reference;the description will be refractive. If, however, the differencebetween norm and law (law of law or of morality) involves reconstruction of the norm in another frame of reference, the description will be interpretive.Yet we shall see in a while that Kelsen's way of combining the two modes of description is curious.64
A 'PURE PART' OF LEGAL SCIENCE The second type of purity with which Kelsen is concerned is purity of the form of knowledge from empirical content. Since, for Kant, the 'categories' and not any supposedly given 'facts' are the foundations of thought, any mode of enquiry can be systematic - that is, can be a science - only if its systematic character is established in advance of empirical investigation. It is therefore necessary, in beginning to construct a particular science, to establish a set of basic forms that the science will apply. This set Kant calls the 'metaphysical bases' of the science.65 Their formulation, he calls (speaking of natural science) the 'pure part' of the science - 'pure' in the sense that it does not yet have any sensuous admixture, any empirical content. This should be stated separately from the later, 'empirical' part of the science, in which the forms established in the pure part are applied to empirical material so as to compose concepts.66 Thus, the purpose of constructing a pure part of a science, far from being to evade empirical considerations, is precisely to make empiricalenquirypossible.67 Kelsen states that the pure theory provides 'the fundamental principles by means of which any legal order can be comprehended'68 and that it is a 'general jurisprudence' furnishing 'the basic conceptions that enable us to master any law' and accordingly serving as 'the theoretical basis for all other branches ofjurisprudence' such as 'dogmatic' (that is, doctrinalist), historical, or comparative jurisprudence,69and even sociology of law.70 The theory:
has - and by its very nature must have - aformalistic character. This does not mean - as it is sometimes misunderstood - that the Pure Theory of Law considers the contents of the legal norms as irrelevant. It means only that the concepts defined by the theory must hold what is common to all positive legal orders, not what separates them from each other. 'Formalism' can be no objection to a general theory of law.71
Precisely in this indispensable 'formalism', the pure theory states the common features of all species of law without supposing an eternal essence of law, as do theories of natural law.72 The pure theory is therefore 'pure' in two senses. Normative science as such is 'pure' in the first sense, of being free from considerations of evaluation. Each normative science then divides, in Kantian terms, into a 'pure part' and an 'empirical part'. The pure theory of law is offered as the pure part of a normative science of law. It is, Kelsen insists, a pure theory of law, not a theory 282
of pure law.73 Causal analysis belongs to the empirical part: it is not to be substitutedfor but added to normative interpretation.74The causal element in the test of effectiveness (below) is not itself causal analysis but an envisaging of a respect in which causal analysis will be required. The answer to Hart's criticism is that the pure part of the science identifies law and the empiricalpart can then trace the connections of origin and effect.75 Such is Kelsen's intention. So far as he envisages reflective or interpretive description, the pure part may remain independent of the material to be described. Yet, so far as he retains refractive description, the bases of the science remain within the terms of the subject matter and a division between pure and empirical parts of the science is not feasible. THE NORM AS 'OBJECTIVE MEANING' Kelsen's second departure from Weber concerns objectivity of meanings. Kelsen defines an ought as 'the meaning of an act of will'. Presumably, this will be a 'subjectivemeaning' in Weber's sense. Thus, Kelsen supposes, one might observe that people in a room periodically raise their hands and one could record the statistical regularities of the hand-raising. But one will understand the hand-raising as voting only if one also, through interpretive understanding, examines the meanings that the actors attach to their behaviour. So far, Kelsen is with Weber.76 Weber would then have said that these subjective meanings might include the actors' belief that the meaning is obligatory upon them. Science should record that belief - but in Weber's view science has no business deciding whether that belief is true. Weber firmly declines to suppose 'an objectively "correct" meaning or one which is "true" in some metaphysical sense'." For him, science may be 'objective' through excluding ideology, yet not even science can claim absolute objectivity. But Kelsen asserts that the voting can be understood as legislation only when the subjective meaning of the hand-raising is also understood as 'its objective meaning, that is, the meaning the act has according to the law'.78 Now, Kelsen might be taking law here as his frame of reference,just as Weber takes the frame of referenceof his sociology. But that would be to think within the law, not to think in terms of a legal science. Rather, it seems, Kelsen is supposing within his legal science that legal meanings are 'objective' on their own account. Why should he suppose that? Two reasons may be found. First, that it seemed obvious. In constructing a general theory of law, Kelsen's principal concern is with the Romanist tradition, in which most western legal systems are found. In that tradition, 'law (German, Recht)' in a general sense is readily characterized as 'objective (objektivesRecht)', as distinct from a 'subjective' category (subjektivesRecht) corresponding to 'rights'. In English translation, 'law' no longer appears in association with an explicit claim of objectivity and the contrast between objective and subjective is lost. 283
Secondly, however, Kelsen offers an argument:the "objective " character of a norm is manifest in the fact that the norm not only binds the addressee even if the addressee does not know or think about it but also continues to exist even after the will whose subjective meaning it is has ceased. What matters is the view of an observer to whom the norm is not addresed, such as a legal scientist. 79 Otherwise, Kelsen argues against Weber, a delict committed when the actor did not know of the legal norm characterizing such behaviour as delictual would fall outside the legal-scientific definition of law.8s Likewise, it seems, Kelsen worries that bindingness would cease as soon as the legislator's mind turned to another topic. But that is a political consideration - unless the legal scientist's concern is with the legislator's view of the consequences of the temporarinessof an act of will. Even so, the legal scientist ordinarily will be an addressee of any general legal norm. It is helpful to see how Kelsen first came to the issue. Historically, he finds, one way to conceive of a norm as objective has been to attribute it to some kind of suprahuman subject as its author. This could be 'God', or personifications of 'Nature', 'Reason' or 'the State'. Most of these are obviously excluded by Kant's ban on transcendence. In his first major work, however, Kelsen still argues that the 'modern state' is 'an entirely extra-individual authority' which 'fulfils its obligating function independently of the will of the individual', so that the positive law of which it is the author is 'objective' in existing 'over and above human beings, independent of the subjective feelings of the individual'. Consequently that law can be represented in legal science only by an objectivistic method that will present it as 'objective' and entirely 'heteronomous'. It cannot be represented accurately by a subjectivistic method, which would make legal norms appear, like moral norms, as 'subjective' and 'autonomous', deriving their bindingness merely from the individual's 'recognition' of them as obligating. Indeed, from a subjectivistic standpoint the apparent objectivity of legal norms appears as nothing but a product of 'projection' or 'objectivation'; that being false, the way law appears from a subjectivistic standpoint is 'fiction'.81 Kelsen was soon unhappy with this: personification of the state still smacked of transcendence. He leapt to a reviewer'smention of the philosophy of Hermann Cohen, where the state appears not as actually personified but as an explicitly fictional personification of the legal order.82 The state would appear, to be precise, as a 'point of imputation'; from the standpoint of normative science, state and law are the same thing.83The identity of state and law will concern us later. What is important here is that, although the state is reduced to a point of imputation, it remains the author of 'objective' norms. Moreover -just as when it was suprahuman- as a point of imputation, it does not appear as an actor. Consequently the meanings of its acts of will, which are legal norms, are not available for interpretive understanding. I will return to this.
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THE LEGALORDER
1. Ordersof Norms
An ought is a 'norm'if it is valid. Norms in this sense may be followed, To speakof validityhereis to saythatthe oughtoccurs violated,or applied.84 two possibletypes not singlybutin somekindof order.8 s Kelsendistinguishes In 'static'order,normsare of order,whichhe calls 'static'and 'dynamic'.86 rankedin hierarchyin a relationof generalto particular. Thus, from the relativelygeneralmoral norm 'Love your neighbour'may be deducedthe Jane'.Eachnew norm'Johnoughtto love his neighbour relatively particular fromthe one 'above'it by a purelyintellectual normis derived operation.The relationbetweenthe normsis one of logicalvalidity- or wouldbe, werethere reason.87 such a thingas practical thatpositivelegalnormsareordered Manyhavebelieved statically.Butthe idea of simplelogical deductioncould not have convincedsomeoneso well withbureaucracy as Kelsen.Nor was the ideaof simplededuction acquainted from a norm made in Vienna to a norm applicableto provincialpeasants of judicial convincing Ehrlich, whose 'free law theory (Freirechtslehre)' decision88 paralleledthe attentionto judicialpolicy developedby Geny in Franceand in American'legalrealism' and 'sociological jurisprudence'. Kelsen's Viennese andKelsenadopted,a model colleagueMerkldeveloped, of legal orderas dynamichierarchy, or 'stepsand stairs(Stufenbau)'. In this model, a positive legal order is conceived as a chain of authorizations addressedto organs of the state. The 'higher' organ cannot foresee all circumstances andmustdelegatepower,withdiscretion, requiring regulation to a 'lower'organ.The higherorgancreatesa 'higher'normauthorizing the 'lower'norm(in whichcasetherewould lowerorganto createnot a particular be no pointin the delegating) but a lowernormof a certainkindand perhaps also through a certain procedure.Thus, in the most familiar case, the the legislature to createstatutes,whichauthorizethe constitutionauthorizes whichauthorize lowerexecutive organsto createregulations, higherexecutive organs to create lesser regulations.Expressedmore precisely:each higher normrecognizes theact of willof thelowerorgan- or recognizes custom- as a fact'.Sincethereis a reference to acts,at no stageis law-creation 'law-creating a mattersimplyof logicaldeduction.The new normis not a productof logic, - sinceknowledge norevena productof knowledge of theearlier law,however ambiguous,does not producea new norm.The organ'sact of will drawson both the authorizing norm and other sources,includingnormsdrawnfrom and morality politics;however,the moraland politicalnormsdo not thereby becomepartof the legalorder. Thehigherandlowerlegalnormsstandin a relationof 'validity' in thesense that the highernormauthorized the creationof the lowernorm.In dynamic
order a norm 'is not valid because it has a certain content' but 'because it is created in a certain way'; in principle, it may have any content at all, although sometimes a higher norm prescribes that lower norms must or must not have certain contents."89The legal order contains both general and individual 285
norms: Kelsen rejects both the European doctrine that only general norms are law, which implies that judges do not make law but only apply it, as well as the extreme American legal-realistdoctrine that only the courts create law, statute being merely a source; there is no line to be drawn between law-creation and law-application.90 For this reason, a norm considered void - for example, because unconstitutional - is void only when declared so by a court of final jurisdiction.91 'The doctrine of the hierarchy of the legal order', in short, 'comprehends the law in motion, in its perpetually renewed process of selfregeneration.'92
The model for 'validity' in this 'dynamic' sense is the sense of 'validity' familiar from constitutional and administrative law: one can readily see how the idea of a dynamic legal order expresses, from the standpoint of legal normative science, the form of the modern, bureaucratic state. However, the model is intended to be applicable to any 'form of state': democracy or autocracy, republic or monarchy.93 Custom does not fit readily into Kelsen's picture. He supposes that regular behaviour can give rise to a collective will that it is right, although the subjective meaning of that act of will can become its objective meaning only if a higher norm institutes custom as a law-creating fact, possibly as the fundamental law-creating fact.94 This way of incorporating customary law into the picture of dynamic order avoids supposing a romantic 'national spirit' that recognizes customary behaviour,95 yet it fails to address the problems that all philosophical positivists have with the idea of customary law: of how an ought can arise in the first place from an is; and of how, even then, that ought could be binding. Although Kelsen long supposed that dynamic order could contain static elements,96he moved toward denying the possibility of static order even for a moral order, with three arguments. His first argument is, that the concept of static order supposes the existence of practical reason; thus he implies that no such order can exist.97 The second and third arguments rest on the distinction between general and individual norms. A norms is 'individual' if it is directed toward a particular person in respect of a particular act; otherwise, it is 'general'.98Kelsen insists that dynamic legal orders contain individual as well as general norms. The second argument is that what appears to be a deduced norm is not actually a new norm99- so that no question of ordering arises. The third argument is that, since the author of a general norm cannot completely foresee the behaviour to which the norm may be applicable, the norm must always be subject to 'individualization', in which, out of the abstract, general norm, a concrete, individual norm will be created to apply in the particular case. Accordingly, when a general norm is created it is then only partially valid; it becomes wholly valid only when it has been individualized: thus the validity of a general norm is necessarily a dynamic process.100 Drawing a distinction common in German theory, Kelsen specifies that he means 'constitution' in the 'material' sense - that is, 'the positive norm or norms which regulate the creation of general legal norms', which may be wholly or partly unwritten - as distinct from a constitution in the 'formal' 286
sense, which is a document and might contain other kinds of norm as well.'10 (Thus, he might have said, there is a 'British Constitution' in the material sense only.) Later he relativizes the meaning of (material) 'constitution' by noting that, in the dynamic chain of validity, each higher norm is a 'constitution' in relation to each lower norm.'02 Except for the final act executing a sanction, law-application is also law-creation.'03 The concept of dynamic legal order, Kelsen thought, marked the pure theory as anti-formalistic;he believed that it achieved with more rigour the anti-formalistic aims of the 'free law' theory and American 'legal realism'. In fact it denies that law can be seen as a logical whole and points juristic attention away from issues of contradiction and toward real social conflicts.'04 Kelsen distinguishes and emphatically rejects a third sense of 'validity', as meaning effectiveness.'05 Effectiveness, he insists, is not validity but a condition of validity. The validity of a positive moral or legal norm rests upon two conditions of is: that the norm shall have been posited (its positivity) and that it shall be 'by and large effective' (its effectiveness). To ask that a norm be totally effective would be absurd: a norm is posited precisely in order to regulate conduct contrary to it. Nor is a norm valid only when it is effective: it is valid when posited; only as valid could it become effective; but it loses its validity if it fails to become, or later ceases to be, by and large effective. Likewise a legal order is valid even though not all of its norms are effective, but loses its validity when it permanently ceases to be by and large effective. Thus validity and effectiveness are not identical, although validity depends on effectiveness- or, in other language, law (or right) is not the same as power (or might), but is dependent on it: in this sense, 'law is a particular order (or organization) of power'.'06 Where 'effectiveness'means only conformity with norms, without considering the motive for the conformity, 'effectiveness' has 'a normative, not a causal, meaning'.107 While a legal order is ordinarily treated as being composed of single norms, Kelsen holds that a general norm is actually two norms. A general norm, he says, is presented in the form: 'People ought to refrain from stealing; if a court has established that a person has committed a theft, that judge ought to create an individual norm stating that that person ought to be put in jail'. The latter part, Kelsen holds, is a 'primary' norm, directed to an organ, stating that coercion ought to be applied; the former part is a 'secondary' norm, also directed to the organ, stating the reason for the primary norm.'08 This seems strange: Austin, for one, follows the sequence of presentation.109 Kelsen, however, is starting not from the norm as written but from behaviour. Perhaps at no point is he more sociological. The primary norm is effective directly, the secondary norm only indirectly;the legal order is effective principally through its primary norms."11 What one observes is people being deprived of goods, imprisoned, executed. As one asks for the meaning that the actors attribute to their behaviour, one comes first upon a norm authorizing the organ to impose the sanction. Next one finds a norm giving the reason for that authorization - although this norm is perhaps 287
superfluous and is often not stated distinctly but only implicit in the primary
norm.111
2. LawandMorality order is forthem to 'have the to compose a dynamic Forpositive legalnorms their own creationand application"'12 of regulating and characteristic Kelsen as if thisis thedistinguishing feature of law."13 writes occasionally a dynamic heholdsthatmoral norms, too,maycompose however, Elsewhere, law fromthe othersocialorders, and Thefeature thatdistinguishes order. - notonlythatit exercises is rather from itscoerciveness morality, particularly also do, butthatit prescribes whichothersocialorders coercion', 'psychic with its specificcoerciveacts directlyas sanctionsfor nonconformity in contrast, are encountered as normsregulating norms.14Moralnorms, - andthen thanas norms a sanction behaviour rather prescribing particular as approval, as thesanction is firstpositive, andonlysubsequently negative, - andoftenwithout a sanction. Themoral anynorm prescribing disapproval - thesanctioning if any, normregulating is primary moral behaviour norm, Kelsen thatmorality is no partof law.Lawhasno moralcontent: insists areno mala there inse butonlymala a delict is notoutside lawora prohibita; of lawbutis within lawas thecondition forimposing a sanction."16 rejection Norislawassuch to holdthatitis subjects thepositive intrinsically good: legal to a newiusnaturalism order andthereby an'uncritical provides legitimation' if one wereto giveup 'thesolidlyfixedfrontier of the order.Indeed, over theconcepts of morality andpolitics', andcountmoral andpolitical against and policiesinto law, one wouldhaveto countin everyfactor principles of law- including thecreation theinterests of party andclass." 17 influencing Thisstance is starkly evident whenKelsen extends theconcept of sanction theconcept of reaction to specific to include to reactions behaviour, beyond - arrest circumstances thatthestatefinds on suspicion, undesirable protective in the publicinterest. of property All internment, custody, expropriation to an extermination be considered as these,evencommittal camp,'cannot outside thelegalorder'."s8 Buttheconcept of a lawof lawis not taking place extended likewise. HereKelsen is tense.Within his philosophical on one sidehis positivism, sense of and is subject to aninsistence thatjustice be strong morality justice relative,a justice of tolerancewhich among other things is a social forthepractice of science.'19 he identifies however, precondition Obversely, and subscribes to the modern of law as meretechnique. He appearance characterizes lawas 'a specific socialtechnique for theachievement of ends determined as a mere'technician', not by politics'and the legalscientist withthepolitical concerned aimsof the legalorder serviced.120 This being to the Frankfurt School's of philosophical positionis vulnerable critique
positivism's privileging of technical or instrumental rationality. The 'scientific' approach is privileged as 'objective', while the practically rational reasons for adopting and pursuing it are always already removed from 288 11 secondary.'
argument by characterizing all evaluation as merely emotional.121 In this perspective, Kelsen privileges in the name of science the instrumentalism whose extreme consequences as law he abhors and of which he was nearly a victim.122
LEGAL ORDER, JUDICIAL KNOWLEDGE, AND LOGIC 1. Echoes of Legal Realism In formulating a legal proposition describing a general norm, we have seen, Kelsen specifies: 'if a court has established (festgestellt)'. Recalling the Kantian principle that there are no 'things in themselves', Kelsen acknowledges that the delict to which a sanction is imputed is not a raw event but an event as constructed under the concept 'delict', or a concept of a particular kind of delict, by a court. Then, for example, the legal norm prohibiting theft says not 'If someone has stolen, the court ought to order that they ought to be put in jail' but 'If the court hearing the case has established that someone has stolen, that court ought to order that that person ought to be put in jail'.123 Under the secondary norm, it seems, the court constructs a factin-law as a condition for the application of the primary norm. Such a view of the matter inserts a cognitive element in the heart of the dynamic order, threatening to blow apart the dichotomy between the categories of is and ought. On further reflection, Kelsen takes a distance from the specialized legal meaning of feststellen: 'to declare', as in a declaratory judgment. What the court does is 'not descriptive, that is, declarative, but constitutive'. The establishing that a delict has been committed normally forms part of the primary norm.124 The further Kelsen goes toward characterizing the secondary norm as 'superfluous' - as either existing but unnecessary or existing only by implication - the closer he comes to the extreme American 'legal realism' of Gray, who maintained that law is only judicially created norms, for which legislation is but a source,'12 and consequently also to abandoning the 'separation of powers' differentiation of judiciary and legislature.126 Kelsen does not, however, acknowledge courts to have unfettered discretion. Existing general norms require the courts to apply them, and courts can depart from them only within the discretion that those norms allow. This fettering is not set aside but only limited, in the extreme application of the 'principle' of resjudicata, that an individual norm may be legally valid even though it does not correspond to any valid general norm, either when there is no such norm or when such a norm prescribes differently (recall that, for Kelsen, a void norm is so only when declared so by a court of final instance). This view corresponds, Kelsen believes, to the way that courts actually behave.127
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2. Logic and norms Kelsen insists that, if there is no practical reason, logic cannot apply to norms. Logic is applicable to legal propositions but not to legal norms. Norms cannot be true or false, only valid or invalid, in a non-logical sense, which is also their existence. The pure theory is not a 'legal logic'.'28 Where logic is applied to legal propositions, still logical questions must not be confused with psychological or political questions.129 Kelsen deals with logic only in the form of the syllogism. A premiss or conclusion of a syllogism may describe a norm in three ways. First, by 'quoting' the norm - for example, 'There is a valid general norm: "Everyone ought to keep their promises to others".' Second, by establishing the existence of a norm, as an objective meaning - that the subjective meaning of an act of will is also its objective meaning because the act is authorized by a valid norm of a positive moral or legal order. Third, in logic of probability, there can be a syllogism concluding as to the probability that, in a particular case, the judge will create an individual norm that will correspond to a certain general norm.130 Nonetheless, Kelsen holds, within an order norms themselves may conflict. Conflict may be two-sided, where to follow either norm would be to breach the other, or one-sided. It may be total or partial - partial when to follow one norm would be to breach the other where it applies conditionally - and either necessary or only possible. I will cite two of his examples. Between the norm 'Bigamy ought to be punished' and the norm 'Bigamy ought not to be punished' there is two-sided, total, necessary conflict. Between the norm 'Murder ought to be punished with death, if the murdereris more than twenty years old' and the norm 'Murder ought to be punished with death, if the murdereris more than eighteen years old' there is one-sided, partial, and not necessary but only possible conflict.'3' Since legal norms can conflict, any legal norm might face its opposite: therefore the values embodied in any norm can only be relative.'32 Kelsen's idea of conflict looks very like contradiction, but he insists that a conflict of norms is not even comparable with contradiction. For conflict of norms can be resolved by derogation, which is the application of a further norm, not of a logical principle.'33 A legal order, Kelsen holds, has no gaps. He subscribes to the view that 'whatever is not forbidden is permitted'. Whatever could have been forbidden yet is neither forbidden nor positively permitted - that is, permission expressly given - may be said to be negatively permitted; the individual is in that sense 'free'. For the situation where an organ is faced with a quite unforeseen case, the legal order contains, expressly or tacitly, a norm authorizing the organ to create a new legal norm on the basis of moral and political principle;although there is no norm to apply to the case, the legal order as a whole is applicable.134
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3. Up theLaw
So far, Kelsen's reasoning has been downward, in terms of the dynamic legal order's chain of authorization. But he also reasons upward. He takes on board the view of both American 'legal realists' and Belgian theory of legal rhetoric that a court may first intuit an individual norm to apply and only afterwards elaborate 'grounds' for its application. In that situation, Kelsen holds, the syllogisms are still relevant, but they describe not the way in which the individual norm is created but the way in which its application is justified; the description is still, as intended, of an organ's practice.135 Again, the anti-formalist tendency of the concept of dynamic legal order appears. In the same spirit Kelsen holds that, when a norm is obeyed, the person obeying it reproduces it, as meaning, in their mind. The addressor means, the addressee understands; through that understanding, the norm becomes a meaning for the addressee; the addressee thereby addresses it to himself or herself. Although this is not to say that the addressee always 'recognizes'- that is, accepts - the norm; the addressee might not obey it, or might obey it only because of the threat of a sanction.136 However, when an organ to which a general norm is addressed is thereby authorized to create a lower norm, it will do so only if it recognizes the higher norm as suitable for application to the concrete case. This will not be an exception to the dynamic order, but will be an authorized exercise of discretion. A 'recognition' theory is correct to this limited extent.'37 The salient feature of these arguments is that Kelsen is looking at the organ's decision from the standpoint of the norm's addressee.'38 LAW, STATE, AND INDIVIDUAL The pure theory 'is objectivistic and universalistic', aiming 'to conceive in each part of the law the function of the total law'. Consequently it cannot view the legal order from the standpoint of the individual legal subject and its interests. Thinking in terms of rights must be reduced to thinking in terms of the whole legal order.'39 But this is to be done sociologically, for norms regulate not persons as such but their behaviour. Accordingly, a 'legal relation' lies not between persons as such but between 'the behaviour of two individuals as defined by legal norms', that is, as content of legal norms.'40 Kelsen speaks of 'the state' in a broad and a narrow sense.'14 The state in the broad sense is defined by territoryand population. If one's eye is on human behaviour, one finds a range of legal orders. In some, general legal norms are created by a central legislative organ, so that the legal order may be called 'relativelycentralized'. The idea of its centralization refersonly to its sphere of validity: for it may be valid over fragmented territory or differently for differentsectors of the population (for example, as to 'language, religion, race, sex or profession'), or not effective uniformly. Such a legal order is a 'state'. In 'the primitive pre-state order and the super-state order of general inter291
national law', however, general legal norms are created through custom. Thus these legal orders are 'relatively decentralized' and should not be called states. Here, Kelsen adopts the idea of 'the state' in international law. The narrow sense is taken from state legal orders, as 'the bureaucratic machinery of officials, headed by the government' (that is, the executive power). This may be seen as a 'partial legal order' within the total legal order. Thus one may speak of the total legal order exercising 'direct state administration', which is to say jurisdiction, and the executive 'indirect state administration', which is essentially, as conformity with the former's law, a mode of transaction. Here Kelsen acknowledges the interventions by the modern state (in the narrow sense) in the 'private' sphere, as well as the bureaucratization of both public and private administration. The state in either sense, however, must be seen as the behaviour of real individuals. Consequently, rights and duties 'of the state' are to be understood as rights and duties of officials. Since they are officials only as persons acting with legal authority, every state is by definition 'governed by law' - that is, is a Rechtsstaat. Therefore the expression Rechtsstaat is better confined to those states that may be described as also committed to the ideas of democracy and legal security. In traditional theory, just as the Christian religion presents 'God' as both creator-rulerand immanent in the world, the state has 'two sides' and is 'selfobligating': that is, it appears on one side as personified author of the legal order, on the other as a legal subject, obligated by the legal order. With the decline of 'a religious-metaphysicaljustification of the state', this theory, that of the Rechtsstaat, performs the inestimable ideological service of presenting the state's self-justification through law. One of the pure theory's main contributions, in Kelsen's eyes, is to have unmasked this ideology. One reason for Kelsen to understand 'the state' primarily under its international-law concept is that this permits him to identify the state with the legal order, independently of the concept of the state in the narrow sense, which attaches to the public-law aspect of the legal order. Indeed, it permits him radically to relativize the distinction between public and private law. Traditional theory of the Romanist legal systems divides the legal order into 'public' and 'private' 'law' (the Common Law systems also segregate 'public' law). Kelsen wants to relativizethe distinction. At the least, he holds, it is made on differentcriteria for differentpurposes.142 However, he goes much further. As with 'the state' in the narrow sense, a corporation may be seen a partial legal order within the total legal order.143Indeed, all individuals appear as 'organs' within the total legal order, in that they are 'authorized' to create law, at least by making contracts. Traditional concepts such as 'capacity', 'competence' and 'jurisdiction' hamper one's ability to see that the scope of authorization includes not only legislation and adjudication but also the exercise of rights and the formation of contracts and treaties. Whether an individual is to be characterized as a 'legal organ' in all law-creating activities or only, according to division of labour, in some (for example, as an official) is 292
for Kelsen a moot point.'44 The main thing is that all such law-creation falls within the legal order. Thus the pure theory 'relativizes the contrast between private and public law, which traditional legal science absolutizes - changes it from an extrasystemic difference,that is, a differencebetween law and non-law, between law and state, to an intra-systemic one'. And in this the pure theory shows itself once again to be 'a true science' by dissolving the ideology involved in the differentiation of public and private law, an ideology that serves either to release government from legal constraints or to create 'the idea that the realm of political domination is restricted to public law, that is, primarily to constitutional and administrativelaw, but entirely excluded from private law'. The latter view creates the illusion that private relations, in the capitalist market, have, in their autonomy, an intrinsic relation to democracy; whereas in capitalism not only norms of private relations but even general norms may be autocratic as easily as democratic.'45 As one would now expect, for Kelsen rights and duties derive exclusively from general norms and are themselves individual norms, considered in relation to the subject to whose behaviour the general and individual norms apply. Rights are 'reflex rights', that is, correlative to an obligation (the idea that rights have priority over duties probably derives from the idea of natural rights): they are private rights as power, through lawsuit, to participate in the creation of an individual norm ordering the imposition of a sanction for nonfulfilment of an obligation; political rights as power to participate in lawcreation, whether directly as member of a legislature or indirectly as voter, or in creation of a norm repealing an unconstitutional norm; or rights as power following permission from a governmental authority. Rights do not stem directly from individual interests, since the individual's right is only to obtain fulfilment of a state organ's duty to apply a sanction. Moreover, the provision of such rights is not an essential function of law but pertains only to parts of a capitalist legal order.'46 In the spirit of limiting the 'metaphysical bases' to what is strictly fundamental to a universal concept of law, such concepts as 'legal organ' and 'reflex right' are characterized as not essential to the pure theory but 'merely auxiliary' - to 'facilitate the description'.147 Another of these is the concept 'legal subject'. As distinct from the human being, who is a construction of the natural sciences, the person is a construction in legal science or ethics; if a human being has both a legal and a moral personality, the human being as 'biologico-physiological unit' is their substratum. The legal person (or subject) may be a physical or 'natural' person, or a juristic or 'artificial' person (such as a corporation or the state). These are not physical realities, nor even creations of the law, but convenient personificatory metaphors through which legal science presents 'the unity of a complex of legal obligations and legal rights'. The person is not different from that complex, any more than a tree differs in substance from the sum of its parts. The artificiality of the juristic person is well known: but the physical or 'natural' person is equally a construction of legal science as a component of the 293
legal order. It 'has' rights and obligations only figuratively: to present that image as real is an ideological move intended to privilege rights of private property.148 The whole legal order, as effective in terms of individual behaviour, constitutes a 'legal community (Rechtsgemeinschaft)', to which in the last analysis authority is attributed and which is 'the state' in the broad sense. In this sense the legal order is a 'state legal order (staatliche Rechtsordnung)'.149 Thus to place primary emphasis on the broad concept of the state may seem strange, even a device to de-emphasize the narrow concept, until one remembers that through Kelsen's lifetime international peace was not obviously the normal situation. He is surely justified in taking armies to be more significant than police. Now, perhaps, the riddle of 'objectivity' can be solved. Kelsen's primary focus is on human behaviour. When, secondarily, he examines the meanings that human subjects attach to their behaviour, he finds that they understand their behaviour as contents of oughts, in particular of legal norms. These norms, taken as a legal order, are also 'the state' in the broad sense. Human subjects then appear as 'organs' of the state. Thus, on one side, human subjects are always already organs of the state, in which case they cannot be the ultimate authors of legal norms; while, on the other, the state itself appears only as a point of imputation. This point of imputation remains 'objective' in the sense of Kelsen's first major work. Consequently, its organs are endowed with that objectivity and communicate it to the legal norms that they make. The authors of legal norms do not appear as subjects whose meanings can be criticized within normative science.
STATE AND INTERNATIONAL LAW Public international law falls within Kelsen's definition of law. It is an order of norms: a basic norm establishes the customary behaviour of states as a lawcreating fact; from custom arise norms regulating the behaviour of states in general. One of these norms is pacta sunt servanda(agreements shall be kept to), according to which treaties are made. Some treaties set up international organizations, such as the International Court, which issue further norms. Thus there is a hierarchyof norms. The norms are coercive, in that breach is by and large visited with a sanction, whether reprisal or war. Since the bellum justum (just war) principle is universally accepted through treaty, war conforming to that principle is a sanction.150 To say that international law authorizes or obligates states means that it authorizes or obligates individuals indirectly, through the state legal order just as that order authorizes or obligates individuals directly through the partial legal order which is a corporation. The international legal norm is however 'incomplete' in that it specifies only the authorization or obligation, leaving to the state legal order identification of the individual to carry it out; that done, the individual's behaviour is attributed to the state, as the state's 294
behaviour. In the same way, a state commits an international delict when it authorises or obligates an individual to do something in contravention of international law. That sanctions are exerted against all members of the state, even if they were not involved in the delict, shows that state members are collectively and absolutely liable for international delicts. There is, however, a tendency for international law to obligate individuals directly, such as war criminals. In these exceptional cases, collective and absolute liability gives way to individual liability with fault.151I Kelsen insists on 'the epistemological postulate: to understand all law in one system - that is, from one and the same standpoint - as one closed whole'. This postulate excludes a dualist view of the relationship between state and international legal order. It permits only the two monist views: either that international law is 'a legal order delegated by, and therefore included in, the state legal order' or that it is 'a total legal order comprising all state legal orders as partial orders, and superior to all of them'.'52 As late as 1941, Kelsen believed that this entailed the primacy of international law, to form with the state legal orders 'one uniform, universal legal system'. 'As it is the task of natural science to describe its object - reality - in one system of laws of nature, so it is the task ofjurisprudence to comprehend all human law in one system of rules of law'.153 He had not yet distinguished clearly between legal norm and legal proposition; if the legal proposition is formulated in terms independent of its subject matter, unity of theory does not entail unity of subject matter.' 54 However, international law has never been so effective and by the end of World War II Kelsen preferredthe more realistic position that the alternative monistic views are equal in the eyes of science. Yet, politically, he maintained the inter-war theme of 'peace through law' and a frank distaste for the statecentred outlook.155
THE BASIC NORM Whether norms are ordered through logical or legal validity, Kelsen believes, the order must have some 'basis (Grund)'.If the separation of'is' and 'ought' is to be maintained, that basis or ground can only be a norm, a 'basic norm (Grundnorm)'. Kelsen presents the basic norm of a positive legal order by contrasting two situations. In one situation, a robber demands money from me. If I ask why I ought to hand my money over, no further reason can be found. The meaning of the robber's act of will is merely subjective. In the second situation, a tax official demands money from me. If I ask why I ought to hand my money over, the official refersto a regulation. If I ask why I ought to obey the regulation, the official refers to a statute. If I ask why I ought to obey the statute, the (patient) official refers to the constitution. If I ask why I ought to obey the constitution, the official might be able to refer to an earlier constitution on whose authority the present constitution was created. Kelsen characterizes that earlier constitution or, if none, the present constitution as the 'historically first 295
constitution', created by custom or revolution. The official'sresourcesend with the historically first constitution - but I can still ask why I ought to obey it. Kelsen proposes that the jurist - the legal scientist' 156 should 'presuppose', as the meaning of a juristic act of thought, a norm prescribing that the historically first constitution ought to be obeyed: 'One ought to obey the prescriptions of the historically first constitution.' Or, more fully: 'Coercion ought to be exerted under the conditions and in the manner prescribed by the by and large effective constitution and by the by and large effective general and individual norms created according to the constitution'. That is: that constitution is to be understood in legal science as the objective meaning of the originating custom or act of will. This 'basic' norm does not actually exist: it is only presupposed in juristic thinking as the 'reason for the validity' of the order. Kelsen specifies it, in Kantian terms, as a transcendental-logical presupposition - or, a constitution 'in a transcendental-logical sense' - that is, not a proposition describing law but a rational condition for constructing propositions describing law.157 Nonetheless, for the case of a particular legal order, the particular basic norm refersto a real constitution. The acid test of the concept is a revolution: if the revolution succeeds, in the sense that the new constitution and the norms made or adopted under it are by and large effective, the jurist presupposes a new basic norm. Nor does Kelsen claim that the concept is original: it 'merely makes conscious what most legal scientists do, at least unconsciously' (that is, when they have not sufficiently clarified their premisses), when they are not being behaviourists or iusnaturalists.' 58However, the presupposition is not a moral recognition. The legal order, which is also a state, is differentiated thereby from a gang of robbers, but the criterion is legality - not justice, as with Augustine.'59 The presupposition of a basic norm plays a double role. On one hand, it is the condition upon which science can understand some oughts as constituting an order, hence as norms - whether legal or moral. On the other, it is the condition on which legal science can understand the meanings of some acts of will as objective - that is, as legal norms. It does not work. Although a basic norm is a scientific construct, the meaning of an act of thought, the thought is ofa norm.And one can still ask, in thought, what is the basis of that norm's authority. If the answer is a still more basic norm, the question can be asked of that norm, too. Thus, presupposing a basic norm, which was intended to tie off the infinite regressof questions about authorization, merely repeats the regress. Moreover, since even a hypothetical norm is conceived as the meaning of a hypothetical act of will, one finds oneself in a regress through ever less evidently human wills. It took Kelsen half a century to realize this. When he did, he reached for a solution as bold as that of the category of 'ought' or the 'basic norm' concept itself. He declared that the basic norm is not a hypothesis but a 'fiction', though in a special sense. In everyday parlance, a fiction is a proposition that, although false, is useful. Vaihinger, however, had termed this a mere 'semi296
fiction'. In Vaihinger's 'philosophy of "as if"', a proposition is a 'genuine fiction' if it is not only false but also self-contradictory. Kelsen held, in these terms, that the basic norm is a 'genuine fiction' because, in addition to being a concept of something that does not in fact exist, it is self-contradictory in that it embodies an infinite regress.160 This does not work either. Vaihinger's concept is incoherent: what is logically invalid cannot be either true or false, indeed is probably meaningless. At one point, Kelsen held that a basic norm is presupposed by 'the individual' in that the general population presupposes a basic norm and that legal science only brings it 'to consciousness'.161 He swiftly resiled from that position162 and rightly so: it is an empirical assumption, not obviously true and Kelsen produced no evidence for it. If successful, the 'basic norm' concept is the keystone of Kelsen's pure theory and hence of his normative science of law; otherwise, it is their Achilles' heel.163The heel has disintegrated of its own accord. Kelsen's theory of law is left without even a means to identify a norm as legal.
CONCLUSION Surveying this wreckage, an initial question is whether it is worth continuing on the same philosophical basis. Although the charge of 'formalism' can be answered within Kelsen's philosophical framework, that framework itself is shaky. One problem is that the construction of reality simultaneously in different 'modes', so that a thing or person appears through a cubist sort of combination of aspects,164 contains no guarantee that a construction in one mode will have anything to do with a construction in another - the notion of a 'modally indifferent substratum' is obscure.16s Other difficulties lie in the rejection of practical reason. First, the more one regardsreality as constructed rather than given, the less ground there is for assuming that even the descriptive side of thought is rational. Second, there is much evidence for the existence of practical rationality; indeed, it is hard to see the point of the concept of legal order, even dynamic legal order, unless it is assumed that the creation of legal norms is rational to some extent. Third, Kelsen provides himself with only two options - that practical reason exists and is absolute, and that the practical sphere is only emotional. It is hard to see why he could not take the Weberian option of relative practical reason, corresponding to the relative theoretical reason in which both thinkers' conception of science is grounded. A descriptive science of law, even as Kelsen conceives it, can proceed whether or not there is also a prescriptive science of law and whether or not the norms to be described have a relatively rational element. Resolution of the philosophical difficulties might strengthen Kelsen's enterprise or require its abandonment or transformation. Transformation would be a three-sided task: (i) to complete the theory's stance of critical independence, (ii) to reformulate the theory compatibly with that stance and (iii), through the eyes of that reformulated version, to take the existing 297
version as a rigorous example of the internalstructureof legal ideology. The scope of enquiry would bring iusnaturalism back into the range of objects of study. Kelsen 'kicks off his theoretical ball to see where it rolls and where it stops if it completes its course without hindrance', which effects a reduction ad absurdumof legal positivism166- especially in the collapse of the pure theory with the loss of the concept of a basic norm. Yet, since that concept was meant to replace the foundations of both legal positivism and (if natural law existed) iusnaturalism, Kelsen's end point tends to reveal that legal ideology embraces both legal positivism and iusnaturalism.167 For a critical perspective should not simply dismiss erroneous beliefs as illusions168 but study the fact that people hold those beliefs and act in terms of them. Yet the pure theory excludes the very issue of ideology in the strong sense of a kind of misdescription.169 First, Kelsen's interpretive understanding is confined to the scientific construction of norms in theirform as oughts. Save in the moment when he considered that a basic norm might be presupposed by the general population, Kelsen does not consider descriptive subjective meanings on their own account. Knowledge of law is understood not as existing in the consciousness of the general population but solely as a product of legal scientists, whose subjectivity is not clearly emancipated from the alleged objectivity of legal authority. And, although occasionally Kelsen acknowledges judicial cognition of norms, he is reluctant to consider how norms may be descriptive through their content - for example, in describing a social relation as 'a contract' or as 'property'. Here, even to an extent in Kelsen's own terms, normativism is guilty of formalism.170 All the same, Kelsen raises three issues of basic relevance to ideologycritique, which many 'critical' writers ignore: (i) how to describe an ought without at the same time deciding whether to recognise it as to be followed, (ii) how to describe a legal ought without necessarily doing so in legal terms and (iii) what is the role in legal ideology of the concept of the naturallegal person? The last, especially, requiresfurtherdevelopment in terms of class and gender, taking into account Kelsen's own sociology from below. A barrier to empirical enquiry, however, is Kelsen's lack of attention to language.171This inattention is permitted by his distinction between an act of will and its mode of expression, but that makes the nature of an act of will still more obscure. All the same, so far as claims that language is all are coupled with attention only to official texts or to the investigator's 'ordinary' dialect and thus tend to service social control in the era of media saturation,172 this gap in Kelsen might not be damning. Accordingly, it seems worth pursuing Kelsen's work on description - both in a neo-Kantian framework, such as Weber's, and in other frameworks into which his ideas can be translated. The legal proposition needs to be translated from the refractiveinto the interpretivemode. The law of law does not fit all of Kelsen's kinds of legal norm in any case and appears to be a misguided attempt to find an analogy of the reflective mode, on the assumption that legal norms are as objective as physical things ('social facts', Durkheim said). Whether anything like the law of law would be requiredif the legal proposition were to 298
become interpretivemay be doubted. And, with the passage from refraction to interpretation, it may no longer be necessary to seek a foundation such as a basic norm. There remains Kelsen's 'will' theory of norms. If one acknowledges as empirically weak Kelsen's assertion that legal norms never occur singly and if one were then to misunderstand his 'will' theory in the politically abolutist terms of most legal science - which Kelsen more than anyone sought to combat - his concept of a legal norm would appear close to that in the Nazism of Schmitt.173 But the pure theory comes close to being a set of independent statements about the nature of law, considered as a social belief. If one describes that belief with such independence, one's later valuations might have room to acknowledge that, although every kind of justice may have been accomplished through law, so has every type of atrocity. Seen from the banks of the Rhine, this bitter paradox might appear to lie not between the form and certain contents of law but within the form itself - to which Kelsen's work is currently our principal guide.
NOTES AND REFERENCES

1 R. A. Metall, Hans Kelsen: Leben und Werk [Hans Kelsen: Life and Work] (1969), hereafter 'Metall, Kelsen', pp. 62-3, 70-2. All information about Kelsen's life is taken from this biography by a pupil and long-time assistant, with whom Kelsen co-operated closely. It contains a full bibliography of works by and on Kelsen at pp. 122-216;supplemented in A. J. Merkl et al. (eds.), Festschriftfiir Hans Kelsen zum 90. Geburtstag (1971), 325-6. In 1933, because his French was better than his English, Kelsen preferred an invitation to work in Geneva to invitations from the London School of Economics (obtained by Laski and Kelsen's former pupil Lauterpacht) and the New School for Social Research, the 'exile university' in the United States of America: Metall, Kelsen, pp. 63-4. 2 C. Varga, The Place of Law in Lukcacs'WorldConcept (1985), 136-7. 3 See, for example, Hans Kelsen-Institut, Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in verschiedenenLdndern [The Pure Theory's Influence on Legal Theory in Various Countries] (1978). 4 For example, by C. Norris, 'Law, Deconstruction, and the Resistance to Theory' (1988) 15J. of Law and Society 166-87 at 182. That Norris comes out of literary theory indicates how orthodox this impression has become. 5 G. Gurvitch, Sociology of Law (1947) 5. 6 H. L. A. Hart, 'Kelsen's Doctrine of the Unity of Law' (1968) in his Essays in Jurisprudence and Philosophy (1983) 309-42 at 313. The charge was laid early: among Kelsen's AustroMarxist friends, by Max Adler and Karl Renner (the latter's work can be seen as an alternative):T. Bottomore and P. Goode (eds.), Austro-Marxism(1978) 18. Among the 'legal realist' tendency, Holmes was mightily impressed after meeting Kelsen and wrote so to Laski: O. W. Holmes Jr., Holmes-Laski Letters (1953) 1376. (Certainly Kelsen was a strong character, once responding so powerfully to a remark by Hart that the latter, on his own account, 'fell over backwards in my chair': H. L. A. Hart, 'Kelsen Visited' (1963) in his Essays in Jurisprudenceand Philosophy, op. cit., pp. 286-308 at 287.) Yet Laski (echoing Holmes's most famous phrase) was to call the pure theory 'an exercise in logic and not in life' and to pile Kelsen among 'the veterans of an earlier age' that knew not sociology: H. J. Laski, A Grammar of Politics (5th ed. 1948) vi. Pound similarly acknowledged Kelsen's eminence, assisted him in exile and deplored his unreality: R. Pound, 'Fifty Years of Jurisprudence', part III, (1937-8) 51 Harvard Law Rev. 444-72 at 449; compare 'Jurisprudence' in the
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Encyclopaedia of the Social Sciences (1930-5), vol. 8, pp. 477-92 at 484. To Pashukanis, who understood Kelsen's philosophical standpoint better than most, Kelsen's theory of law 'makes not the slightest attempt to analyse law, the legal form, as a historical form, for it has absolutely no intention of fathoming reality' and is therefore 'a waste of time': see E. B. Pashukanis, Law and Marxism: a General Theory (1924; tr. B. Einhorn, 1978) 52-3. Today, the accusation continues. Patrons of Twining's 'Great Juristic Bazaar' find a large, empty, whitewashed space announced as 'The One True Legal Science', to which there is 'No Entry without Purification':see W. Twining, 'The Great Juristic Bazaar' (1978) 14 J. of the Society of Public TeachersofLaw 185-200 at 194. J. W. Harris accuses Kelsen of conceiving of a 'pure norm': Law and Legal Science (1979) 34-5. See also J. Stone, Legal System and Lawyers Reasonings (1964) ch. 3; Kelsen replied in 'Professor Stone and the Pure Theory of Law' (1965) 17 Stanford Law Rev. 1128-57. Kelsen's replies to critics were often long. 7 'Bl6deste': reported by H. Klecatsky in Hans Kelsen-Institut, Hans Kelsen zum Gedenken [Remembering Hans Kelsen] (1974) 69-70. 8 (1981) 138 Revue Internationale de Philosophie ('Kelsen et le Positivisme Juridique [Kelsen and Legal Positivism]'); (1986) 9 Cahiers de Philosophie Politique et Juridique ('La Philosophie du Droit de Hans Kelsen [Hans Kelsen's Philosophy of Law]'); R. Tur and W. Twining (eds.), Essays on Kelsen (1986). The following have not yet been seen: (1984) Rechtstheorie, Beihefte 5 and 6; S. L. Paulson and R. Walter (eds.), Untersuchungenzur Reinen Rechtslehre [Studies on the Pure Theory of Law] (1986); A. Carrino, Kelsen e il Problema della Scienza Giuridica [Kelsen and the Problem of Legal Science] (1987); W. Krawietz and O. Weinberger(eds.), Reine Rechtslehreim Spiegel ihrerFortsetzer undKritiker [PureTheory of Law in the Mirror of its Continuators and Critics] (1988); L. Gianformaggio (ed.), Hans Kelsen's Theory:a Diachronic Point of View(forthcoming). I have had to neglect almost all of the large literature on Kelsen in Italian and Spanish. 9 Even its core, the pure theory, has been surveyed at book length in English only once: W. Ebenstein, The Pure Theoryof Law (1945, reissued 1969). This book contains many valuable reflections for which there is not space here. The only other book in English on Kelsen does not attempt a general exposition and as critique is very weak: R. Moore, Legal Norms and Legal Science: a Critical Study of Kelsen's Pure Theoryof Law (1978); see my review, (1980) 43 Modern Law Rev. 727-9. Like Ebenstein's book, the existing article-length surveys in English, though good in their time, are out of date: H. Lauterpacht, 'Kelsen's Pure Science of Law' in W. I. Jennings (ed.), Modern Theoriesof Law (1933) 105-38;C. H. Wilson, 'The Basis of Kelsen's Theory of Law' (1934) 1 Politica 54-82. Kelsen himself provides a good, though now dated, survey: 'The Pure Theory of Law. Its Method and Fundamental Concepts', (1934) 50 Law QuarterlyRev. 474-98 (tr. C.H. Wilson); (1935) 51 Law QuarterlyRev. 517-35; compare 'The Function of the Pure Theory of Law' in A. Reppy (ed.), Law: a Century of Progress 1835-1935 (1937) vol. 2, pp. 231-41; 'On the Pure Theory of Law' (1966) 1 Israel Law Rev. 1-7. Some aspects of the pure theory are discussed in J. Lenoble and F. Ost, Droit, Mythe et Raison [Law, Myth and Reason] (1980) 467-546; M. van der Kerchove and F. Ost, Le Systeme Juridiqueentre Ordreet Disordre [Legal Systems - between Order and Disorder] (1988); D. Beyleveld and R. Brownsword, Law as a Moral Judgment (1986), ch. 6; also "Normative Positivism: the Mirage of the Middle Way" (1989) 9 Oxford J. of Legal Studies 463-512. The best textbook account is in Lord Lloyd of Hampstead and M. D. A. Freeman, Introductionto Jurisprudence (5th ed. 1985) ch. 5. 10 In referringto Kelsen's major works, the following abbreviations will be used: ATN - Allgemeine Theorie der Normen [General Theory of Norms] (1979) - an index is available separately (1989); tr. M. Hartney, General Theoryof Norms (forthcoming). A draft of the first chapter was published in 1965 and is translated by P. Heath as 'On the Concept of Norm' in Kelsen, Essays in Legal and Moral Philosophy, sel. O. Weinberger (1973) 216-27. CTL- The CommunistTheoryof Law (1955). Mostly a critique of the collection Soviet Legal Philosophy, tr. H. Babb (1951). FC- 'The Function of a Constitution' (1964), tr. I. Stewart in Tur and Twining, op. cit., n. 8, pp. 109-19. Also in Lloyd and Freeman, op. cit., n. 9, pp. 379-85; the text in the Tur and Twining volume will be cited here. This version of the translation supersedes that in [1980]
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JuridicalRev. 214-24, except that the latter has notes on variations between the two versions of the German text. Parts of the later German text are incorporated in A TN, pp. 205-8. GTLS- General Theoryof Law and State (tr. A. Wedberg 1945, reissued 1961). The original German text has not been published. HPS - Hauptproblemeder Staatsrechtslehreentwickeltaus der Lehre vom Rechtssatze [Major Problems in Theory of the Law of the State, Approached from Theory of the Legal Statement] (1911; 2nd ed. 1923, reissued 1960). PTL - Pure Theoryof Law (1967 - translation by M. Knight of RR2). The title is correct on the titlepage; the addition of 'The' on the cover of the paperback edition (1970) is unexplained. Problematik[Pure Theory RR1 - Reine Rechtslehre:Einleitungin die Rechtswissenschaftliche of Law: Introduction to the Problematic of Legal Science] (1st ed. 1934); tr. B. L. and S. L Paulson, Introduction to the Problems of Legal Theory (forthcoming). The French translation, ThdoriePure du Droit (1953), tr. H. Thevenaz, is an amplified text, intermediate between RR1 and RR2; a second edition of the translation (1988) distinguishes Kelsen's amplifications and adds an essay by M. van de Kerchove on Kelsen's influence in francophonic Europe and a bibliography of works in French on Kelsen. RR2 - Reine Rechtslehre(2nd ed. 1960 - tr. as PTL). WIJ - What is Justice? Justice, Law, and Politics in the Mirror of Science. Collected Essays (1957). WRS - H. Kelsen, A. Merkl, and A. Verdross, Die WienerrechtstheoretischeSchule [The Vienna School of Legal Theory], ed. H. Klecatsky et al. (1968, in 2 vols). The Kelsen bibliographies in GTLS and WRS are superseded by that in M6tall, Kelsenand its supplement; then by that in (not seen) R. Walter, Hans Kelsen (1985). Of Kelsen's main books, GTLS and RR2/PTL in particular tend to repeat each other: in referencing, preference will be given to A TN because it is a final statement, citing corresponding passages in FC since it is available in English; then to PTL as the last overall statement of the pure theory; and then to GTLS where it covers a point more fully than PTL. In no sense, however, are the referencesintended to be comprehensive. In quotations from American texts, spelling has been anglicized. 11 One inferior translation is that of RR2 as PTL, which, though the translator records that the translation was 'carefullychecked by the author' (PTL, p. vi), flattens philosophical nuances and omits many footnotes helpful on points of detail and for locating the book in contemporary debate. Where translation and original differ, it is impossible to tell what Kelsen intended: for example, the apparently handy definition of law in PTL (p. 320) does not clearly relate to the corresponding text in RR2 (p. 321). 12 See M6tall, Kelsen. 13 See P. de Visscher, 'Observationssur la Contributionde Hans Kelsen au Droit International Positif[Observations on Hans Kelsen's Contribution to Positive International Law]' (1981) 138 Revue Internationalede Philosophie 530-8. 14 Its membership is in any case contested - Metall finds WRS unrepresentativeand holds that the pure theory of law is quite different from the work of the School: R. A. Metall, 'Hans Kelsen und seine Wiener Schule der Rechtstheorie [Hans Kelsen and his Vienna School of Legal Theory]' in Hans Kelsen zum Gedenken,Hans Kelsen-Institut (1974) 15-25 at 15-16. 15 HPS. In the Germanic universities the higher doctorate, or Habilitation, qualifies for an academic career. 16 PTL, p. 1, compare 30-3; Society and Nature (1943). 17 It suited Einstein, for one: P. A. Schilpp (ed.), Albert Einstein: Philosopher-Scientist(1949, 1969). 18 RR1, p. iii; reproduced in RR2, p. iii, but not in PTL. See also PTL, p. 72. See, further, H. Klenner, 'Kelsens Kant [Kelsen's Kant]' (1981) 138 Revue Internationalede Philosophie 53946. 19 PTL, p. 113. 20 Kelsen, 'Natural Law Doctrine and Legal Positivism' (1929), tr. W.H. Kraus, in GTLS, pp. 389-446 at 444.
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21 HPS, pp. v-xxiii ('Vorrede zur zweiten Auflage [Preface to the Second Edition]'); 'Die [Legal Science as Science of Norms or Rechtswissenschaftals Norm- oder Kulturwissenschaft Culture]' (1916) in WRS, pp. 37-93. 22 'The Pure Theory of Law', op. cit., n. 9, p. 481. 23 PTL, p. 94. 24 D. Hume, A Treatise of Human Nature (1739, 1888) 469-70; A TN, p. 222. 25 Following Herbart: Kelsen, 'Die Rechtswissenschaftals Norm- oder Kulturwissenschaft', op. cit., n. 21, p. 37. Kelsen believes that Kant confuses the distinction in his theologically grounded conception of 'practical reason' (A TN, pp. 62-5) and in this regardprefers Hume to Kant: A TN, pp. 68-9. 26 PTL, pp. 5-7; ATN, pp. 44-8. The difference between 'is' and 'ought' parallels that between reality and value: what is understood in terms of 'is' is real, what is understood in terms of 'ought' is valuable if the 'ought' is a norm (then the norm is a value). To understand in terms of an 'ought' that is a norm is to make an 'objective' value judgement. To understand in terms of an 'ought' that is not a norm is to make a 'subjective' value judgement: but this is really to understand in terms of 'is' - to describe a relation between two things, the object valued and one's emotional state concerning it (A TN, p. 47). Existentialism is classified as merely an extension of iusnaturalism, as yet another mingling of 'is' and 'ought': PTL, pp. 253-4. 27 A TN, p. 6.; PTL, p. 196, where the cross-reference seems to refer to the essay 'Das Problem der Gorechtigkeit[The Problem of Justice], appended to RR2, pp. 355-444 at 415 ff. 28 A TN, pp. 131-4; as here, arguments of A TN that refer to norms can often be taken to hold generally for oughts. Subsidiarily, Kelsen distinguishes between physiological will - for example, by which one contracts an arm muscle, and mental will - for example, by which one directs an arm movement; his is/ought division requiresthis distinction, but he accepts that it is difficult, perhaps uncompletable: A TN, p. 24. 'Will' here will mean mental will. 29 A TN, pp. 103, 119-20; PTL, pp. 2-7. 30 RR2, pp. 4-5; PTL, p. 5; A TN, pp. 76-92. The specification is less necessary for the English word 'ought' than for the German, 'Sollen',which is close to 'must'. However, in this context 'must' is better reservedto translate Kelsen's 'Miissen',which he reservesfor the necessities of causal connection. 'Derogation' occurs where one norm removes the validity of another: for example, where a statute, or a section of a atatute, is repealed. Strictly, a derogating norm is a 'not-ought (Nicht-Sollen)', but, since that is not feasible linguistically, one says, for example, 'is hereby repealed': A TN, pp. 85, 87. Derogation is distinct from desuetude or the replacement of one customary norm by another. Kelsen accepts the existence of self-referring norms: A TN, p. 88. 31 ATN, pp. 119-20. 32 ATN, p. 131. 33 PTL, pp. 101-7. 34 PTL, p. 1. On origins of the expression 'methodological syncretism', see S. L. Paulson, 'Kelsen on Legal Interpretation' (1990) 10 Legal Studies 136-52 at 151. I am indebted to this article for some references to recent and forthcoming publications 35 For example, CTL, pp. 98-9, 143. 36 R. Stammler, The TheoryofJustice (1902, tr. I. Husik 1925, 1969). Stammler argued, against Marxism, that law is the 'form' of society: Wirtschaftund Recht nach der materialistischen Geschichtsauffassung[Economy and Law According to the Materialist Conception of History] (1896). The latter point is, of course, description of law, so that Stammler actually confuses description and prescription: M. Weber, 'R. Stammler's "Surmounting" of the Materialist Conception of History' (1906), tr. M. Albrow (1975) 2 Brit. J. of Law and Society 129-52; (1976) 3 Brit. J. of Law and Society 17-43. 37 Compare K. Olivecrona, Law as Fact (1939). 38 A TN, pp. 58-60. 39 G. Simmel, Einleitungin die Moralwissenschaft[Introduction to Moral Science](1892-3), vol. 1, pp. 8-9. Later, Simmel preferred a category of 'value (Wert)': The Philosophy of Money (1900, tr. T. Bottomore and D. Frisby 1978) 60. But Kelsen does not use this idea. 40 The adoption of an additional category has been obscured by Kelsen himself. Although he
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discusses the borrowing from Simmel in an early work (HPS, pp. 7-8), and alludes to it later on, so far as I am aware it is referred to explicitly again only in a work published after his death: ATN, p. 2 and n. 2 (on 221-2). 41 PTL, pp. 3-4 (where 'Schema'is rendered as 'scheme'); RR2, pp. 3-4. 42 PTL, p. 86; compare GTLS, pp. 162-4 ('normative jurisprudence'). 43 That is, in more modern language, social or cultural anthropology. 44 GTLS, pp. 175-8; compare PTL, pp. 75-6, 85-9. 45 ATN, pp. 18-19, 121-5; RR2, pp. 73-7. The translation of Rechtssatz as 'rule of law in a has misled. Translation of Sollsdtze and descriptive sense' (GTLS, pp. 45ff; PTL, pp. 71Wf) Seinsiitze as, respectively, 'ought sentences' (and perhaps 'deontic sentences') and 'declarative sentences' (0. Weinberger,'Logic and the Pure Theory of Law', tr. A. Schramm, in Tur and Twining, op. cit., n. 8, pp. 187-99 at 189, 199) is very awkward: for one thing, these are not necessarily sentences. The distinction between norm and proposition is absent in early works, such as HPS, where Kelsen adheres to conventional usage, in which 'Rechtssatz' refers indeterminately to a legal norm and to the proposition describing it. Rather than speak, respectively, of 'genuine' and 'non-genuine' Sdtze, he consciously turns to using 'Rechtssatz' to mean only the descriptive proposition: ATN, pp. 121, 124-5. According to Kelsen, the new distinction originates in RR' and is first stated clearly in RR2: RR2, p. 83n. 46 ATN, p. 1. 47 PTL, p. 58. 48 As a European, Kelsen uses the Romanist expression 'delict (German, Unrecht or Delikt)', which covers both criminal and civil wrongs. 49 My example. Part of Kelsen's attack on iusnaturalism was to trace the development of the principle of causality and the idea of a causal law out of primitive ideas of retribution, imputation and law: for example, 'Causality and Retribution' (1941) in WIJ, pp. 303-23; Society and Nature (1943); 'Causality and Imputation' (1950) in WIJ, pp. 324-49. Kelsen investigated the idea of the soul as ground for ideas of retribution: 'The Soul and the Law' (1937) 1 Rev. of Religion 337-60. Kelsen's critiques of ancient philosophy may still be of interest; his anthropological ideas remain attached to the category of the 'primitive'. See, further, (not seen), Kelsen, Die Illusien der Gerechtigkeit. Eine kritishe Untersuchungder Sozialphilosophie Platons [The Illusion of Justice. A Critical Enquiry into Plato's Social Philosophy], ed. K. Ringhofer and R. Walter (1985). 50 PTL, p. 92. 51 PTL, pp. 76-81, 87. While the translation of 'Zurechnung'as 'imputation' may be as good as any, rendering'Rechtsgesetz' as 'legal law' (PTL, pp. 76ff) obscures the analogy with natural science. Kelsen makes the jump from causality to imputation seem more plausible by arguing that the principle of causality derives historically from that of imputation and its associate, the idea of retribution: PTL, pp. 82-5. 52 ATN, p. 20. 53 ATN, p. 18. 54 A TN, p. 20; PTL, pp. 85-6. 55 GTLS, pp. 162-78; PTL, pp. 101-7. Kelsen insisted on this especially against Ehrlich's conceptualisation of sociology of law: GTLS, pp. 24-8; see also H. Rottleuthner, 'Rechtstheoretische Probleme der Soziologie des Rechts. Die Kontroverse zwischen Hans KelsenundEugen Ehrlich (1915/1917) [Legal-theoreticalProblems of Sociology of Law. The Controversy between Hans Kelsen and Eugen Ehrlich (1915/1917)]' in Rechtssystem und gesellschaftliche Basis bei Hans Kelsen, eds. W. Krawietz and H. Schelsky (Rechtstheorie, Beiheft 5) (1984) 521-51. 56 ATN, pp. 9, 145. 57 PTL, p. 73 (translation modified; compare RR2, p. 75). 58 PTL, ch. 8. However, what is interpretedis not, as he says, a norm - for that would be to seek, absurdly, the meaning of a meaning - but the act of will whose meaning the norm is: M. Troper, 'Kelsen, la Thhoriede l'Interpretationet la Structure de l'Ordre Juridique [Kelsen, Theory of Interpretation and the Structure of the Legal Order]' (1981) 138 Revue Internationalede Philosophie 518-29 at 520-1. The interpretation should, as Troper notes, be
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of a text (or other sign) - but Kelsen distinguishes the act of will from its mode of expression. See, further, Kelsen, 'On the Theory of Interpretation', tr. B. L. and S. L. Paulson (1990) 10 Legal Studies 127-35; Paulson, op. cit., n. 34 59 GTLS, p. 45. 60 PTL, p. 72. 61 PTL, p. 70 (translation modified; compare RR2, p. 72). 'This is the pure theory's position as against the so-called "egological" theory of law, which takes as the object of legal science not norms but human behaviour, and against the Marxist theory, which conceives law as as aggregate of economic relations.' (RR2, p. 72 n.). See also N. Duxbury, 'Carlos Cossio and Egological Legal Philosophy' (1989) 2 Ratio Juris 274-82. 62 A. Wilson, 'Is Kelsen Really a Kantian?' in Tur and Twining, op. cit., n. 8, pp. 37-64. 63 Economyand Society (1922), tr. various (1968), pp. 4ff. Kelsen occasionally uses 'objective' in this sense, as meaning 'politically unbiased': for example, CTL, pp. 96-7. 64 Differences in modes of description are ignored in Raz's distinctions among types of 'committed' and 'detached' statements: J. Raz, 'The Purity of the Pure Theory' (1981) 138 Revue Internationalede Philosophie 441-59 at 453-5 (also in Tur and Twining, op. cit., n. 8, pp. 79-97 at 90-3); see also R. J. Vernengo, 'Kelsen's Rechtssiitzeas Detached Statements' in Tur and Twining, op. cit., n. 8, pp. 99-108. 65 Kant usually speaks of 'metaphysics' as meaning erroneous belief in transcendence, but in this context he uses the word with reference to universal postulates. 66 I. Kant, Metaphysical Foundationsof Natural Science (1786, tr. J. Ellington 1970) 5-6. 67 Compare Weinberger, op. cit., n. 45, p. 188. 68 'The Pure Theory of Law and Analytical Jurisprudence'(1941) in WIJ, pp. 266-87 at 266. 69 'The Function of the Pure Theory of Law', op. cit., n. 9, pp. 231-2. 70 HPS, p. 92; 'Zur Soziologie des Rechtes [On Sociology of Law]' (1912) 34 Archiv fiir Sozialwissenschaftund Sozialpolitik 601-14; GTLS, pp. 175-7. 71 'On the Pure Theory of Law', op. cit., n. 9, p. 4. 72 CTL, pp. 72-3. Although Kelsen might have been entitled to assume that the idea of 'pure theory' was familiar in his time, it was still necessary to state clearly his own understandingof the expression. Thus R. Stammler wrote of 'pure science or theory' in a related but importantly different sense: The Theoryof Justice, op. cit., n. 36, p. 5. 73 ' Was ist die Reine Rechtslehre?[What is the Pure Theory of Law]' (1953) in WRS, pp. 611-29 at 620. 74 CTL, p. 193. 75 Compare G. Lukacs, 'Reification and the Consciousness of the Proletariat' (1923) in his History and Class Consciousness,tr. R. Livingstone (1971) 83-222 at 108-9. 76 Kelsen, 'Der Staatsbegriff der "verstehendenSoziologie" [The Concept of the State in "Interpretive Sociology"]' (1921) 1 Zeitschriftfiir Volkswirtschaftund Sozialpolitik 104-19; 'The Pure Theory of Law', op. cit., n. 9, pp. 477-8; GTLS, pp. 162-78;PTL, pp. 2-3, 85-9, 1017. See, further, N. Bobbio, 'Max Webere Hans Kelsen[Max Weber and Hans Kelsen]' (1981) 8 Sociologia del Diritto 135-54; A Carrino, ' Webere la Sociologia del Diritto nella Critica di Kelsen [Weber and Sociology of Law in Kelsen's Critique]' (1987) 14 Sociologia del Diritto 17-32. 77 Economy and Society, op. cit., n. 63, p. 4. 78 PTL, p. 3. 79 PTL, pp. 7-8; RR2, p. 7. The argument is clumsily expressed in both texts. 80 GTLS, p. 178. 81 HPS, chs. 1-2. 82 0. Ewald, 'Die deutsche Philosophie im Jahre 1911 [German Philosophy in the Year 1911]' (1912) 17 Kant-Studien382-433 at 397-8; M6tall, Kelsen, pp. 7, 8, 15; H. Cohen, Ethik des reinen Willens[Ethic of Pure Will] (1904). 83 GTLS, pp. 99, 191-2. 84 ATN, pp. 1-3, 22. 85 PTL, p. 47. 86 GTLS, pp. 112-13;PTL, pp. 195-8. Kelsen does not confuse 'legal order' in this sense with the
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orderliness in society that such an order might ensure when it is effective; nor does he assume that law always creates order (PTL, p. 38). 87 GTLS, p. 112. My example. 88 For example, E. Ehrlich, 'Judicial Freedom of Decision: Its Principles and Objects' (1903) in various authors, Science of Legal Method, tr. E. Bruncken and L. B. Register (1917, 1969) 4784; FundamentalPrinciples of the Sociology of Law (1913; tr. W. L. Moll, reissued 1975). 89 For example, PTL, chs. 5 and 8. The behaviour in the particular case may be logically relatable to the behaviour envisaged generally in the norm - but that is a subsidiary issue in the realm of 'is', concerning the norm not as 'ought' but as to its 'content': A TN, pp. 26, 39. Logic does not apply even to imagined norms, since these are the imagined meaning of an imagined act of will: A TN, pp. 187-8. Kelsen might have added that norms are usually imagined before they are called into existence by a real act of will. Strictly, however, there is not a norm that may or may not be legally valid: validity in this sense is the norm's 'specific intellectual (ideell) existence'; strictly, 'valid norm' is a pleonasm: A TN, pp. 22, 136-8. Not to be confused with ideal (ideal) existence, in, for example, a Platonic sense, or with real, material existence: Kelsen in discussion reported in Das Naturrecht in der politischen Theorie,ed. F.-M. Schm6lz (1963) 124. 90 PTL, pp. 231, 234-5, 255. 91 PTL, pp. 267-78. 92 PTL, p. 279, compare 70-1. 93 PTL, pp. 279-80; where 'Rechtsform und Staatsform (Form of Law and Form of State)' (RR2, p. 283), is rendered as 'Creation of Law and Form of Government'. 94 PTL, pp. 9, 214, 226, 250. See also below, on 'primitive' law and international law. 95 PTL, p. 227. 96 PTL, pp. 197-8. 97 PTL, p. 196. 98 A TN, pp. 6-7. 99 ATN, p. 201-2. 100 A TN, pp. 33-40. In characterizing even moral orders as dynamic, Kelsen supposes that, just as legal norms are applied by organs of the legal order, moral norms are applied by organs of the moral order: ATN, p. 42. The meaning of 'organ' here is diffuse. 101 PTL, p. 222. 102 FC, p. 118. This sense of 'constitution' seems to be Kelsen's scientifically acceptable substitute for 'sources of law' in the validation sense, after he rejectedthat expression because it could also refer to historical sources: PTL, p. 233. 103 PTL, pp. 234, 236. 104 Lukics, quoted in Varga, op. cit., n. 2, p. 148. 105 PTL, pp. 211-14. Here Kelsen takes as 'typical' opponent his former pupil the Scandinavian 'legal realist' Ross: RR2, p. 215n. 106 ATN, pp. 111-14; PTL, pp. 10-12, 211-14 (translation modified). PTL, p. 214, repetitively renders 'Recht' as both 'law' and 'right', and 'Macht' as both 'power' and 'might': compare RR2, pp. 220-1. Kelsen has in mind the doctrine of desuetude (desuetudo), known in the Romanist legal systems but not in the common law systems. 107 PTL, p. 27. 108 A TN, pp. 43, 108, 115-16; GTLS, pp. 60-1. 109 Criticized in GTLS, pp. 62-4. However, Austin's Benthamite definition of the sovereign, as the person or body that is habitually obeyed and does not habitually obey any other, which is central to his definition of positive law, is also sociological. Kelsen sympathizes with this side of Austin and only finds his way of using it contradictory. 110 ATN, p. 112. 111 Hart's primary/secondary distinction is in the same direction as Kelsen's, but on a different criterion: H. L. A. Hart, The Concept of Law (1961), ch. 5. Hart's 'secondary rules' fall into Kelsen's class of 'dependent norms', which in their dependence on sanctioned norms are indirectly coercive: compare PTL, pp. 54-8. For recent comparisons between Hart and Kelsen, see Beyleveld and Brownsword, 'Normative Positivism', op. cit., n. 9; van der
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Kerchove and Ost, op. cit., n. 9 (relating the work of Hart and Kelsen to systems theory). 112 FC, p. 111. 113 For example, PTL, pp. 221, 255. 114 PTL, pp. 33-42. 115 ATN, pp. 115-16; compare FC, p. 112. 116 PTL, pp. 59-69, 111-14. 117 ATN, pp. 92-9, 265-6; PTL, pp. 68-9 (translation modified; RR2, p. 71). This holds even for the 'general principles of law' that the International Court of Justice is authorized by its Statute to apply: A TN, pp. 99, 266. 118 PTL, pp. 33-42. PTL appears later to deny this extension (p. 111 ), but the denial is not in RR2 (p. 117); compare PTL, p. 114. 119 His retirement lecture was 'What is Justice' (1952) in WIJ, pp. 1-24. See also other essays in that book and 'Das Problemder Gerechtigkeit',op. cit., n. 27; J. Bjarup, 'Kelsen's Theory of Law and Philosophy of Justice' in Tur and Twining, op. cit., n. 8, pp. 273-303. 120 The Law of the United Nations (1950), p. xiii; compare GTLS, p. 15; 'The Law as a Specific Social Technique' (1941) in WIJ, pp. 231-56. 121 See, for example, D. Held, Introductionto Critical Theory(1980), ch. 5. 122 Compare A. Renaut, 'Kelsen et le Problkmede l'Autonomiedu Droit [Kelsen and the Problem of the Autonomy of Law]' (1986) 9 Cahiers de Philosophie Politique et Juridique7-21 at 21. Kelsen's position is also vulnerable to Foucault's critique of technical rationality as a form of power in which the subject is denied and reconstructed- although the pure theory may also be taken as useful to a Foucauldian perspective in identifying law as a technique of disciplinary power: see especially CTL, pp. 102-5. 123 ATN, p. 105. This refinement appears to be new in ATN. 124 A TN, pp. 195-6. The earlier view reeks, to him, of the old theory of legislation as merely the finding and promulgation of natural laws (familiar in common law countries as the fiction that judges do not make law). 125 ATN, pp. 115, 349-50. Previously, Kelsen had rejected Gray's approach as supposing that only individual norms exist: PTL, p. 255. 126 A TN, p. 196n. 127 A TN, pp. 199-200. 128 'Was ist die Reine Rechtslehre?',op. cit., n. 73. at 616-18 (this passage tr. in Weinberger, op. cit., n. 45, pp. 189-90). Thus, legal norms do not 'teach', only legal propositions describing them: A TN, pp. 103-6. In Kelsen's terms, the educative role of law, for example in anti-discrimination laws, would operate through description of legal norms, mainly in the press. 129 A TN, p. 190. A reference to the basic norm as 'the constitution in the legal-logical sense (die Verfassungim rechtslogischen Sinne)' (RR2, p. 232; changed to 'the "constitution" in the transcendental-logical sense' in PTL, p. 226) might be understood to refer to the logicality of legal propositions, including a basic norm. The occasional references to 'the logical relation of norms' (PTL, p. 339) and 'contradiction' between norms (PTL, pp. 206, 350, 352) are harder to explain: since, however, they are made in passing, there is room to take them to refer infelicitously to the norm as presented in the legal proposition. The alternative, and of course defensible, view has produced the impression that Kelsen thought logic did apply to norms and, in the 1960s, changed his mind: for example, Weinberger, op. cit., n. 45, pp. 1924. R. J. Vernengo valuably argues that Kelsen usually saw logic as having 'an epistemological tinge according to the traditional Kantian heritage' or later, 'under the influence of phenomenology, and ontological foundation' and became familiar with modern formal logic only 'in his last years, and then not without ambiguities': 'About an Empowerment Theory of Legal Norms and Some Related Problems' (1989) 2 Ratio Juris 299-303 at 300. 130 A TN, pp. 203-5. The third case echoes Holmes' definition of law as the 'prophecies of what the courts will do in fact': 0. W. Holmes, 'The Path of the Law' (1897) 10 HarvardLaw Rev. 457-78 at 461. But the echo is distorted: these prophecies would be expressed in laws of law, not legal norms themselves; yet in any case such prophecy belongs to the realm of legal advice, not scientific description: PTL, pp. 87-9; GTLS, pp. 165-8.
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131 ATN, pp. 99-101. 132 PTL, p. 18. 133 ATN, pp. 101-3.See also papersby Harris,Paulson,and Weylandin TurandTwining,op. cit., n. 8. 134 ATN, pp. 81, 106-7;PTL, p. 245-50. 135 A TN, pp. 351-2. 136 ATN, pp. 25ff. Kelsen awkwardlyconceives self-addressing as a relationbetweenoneself as 'ego' and as 'alterego': A TN, pp. 23-4. 137 ATN, pp. 39-43, 191-3. 138 CompareATN, p. 37. 139 PTL,pp. 191-2. 140 ATN, p. 7; PTL, pp. 165-6(translationmodified:RR2,pp. 169-70),169. 141 PTL, chs. 6 and 7; GTLS,p. 2. 142 PTL, pp. 280-4;GTLS,pp. 201-7. 143 PTL, p. 177. 144 PTL, pp. 145-68,256-62. 145 PTL, pp. 280-4(translationmodified:RR2,pp. 284-7).Kelsenactuallywrites'systematic' wherehe clearlymeans 'systemic'. 146 ATN, pp. 108-11;PTL, pp. 114-17, 125-45. 147 PTL, p. 169. 148 PTL, pp. 117, 168-91;GTLS,pp. 93-109, 377. 149 PTL, pp. 32, 35ff, 266-7, 284-319. Throughout PTL, 'staatlicheRechtsordnung' is renderedas 'nationallegal order'- which both dilutes the key thesis of the identityof (total) legal order and state, and impliesthat Kelsen naivelyassumesthat 'state' and 'nation'alwayscoincide. 150 PTL, pp. 320-4. 151 PTL, pp. 324-8. 152 PTL, pp. 328-33;reading'state' insteadof'national'. 153 'The PureTheoryof Law and AnalyticalJurisprudence', op. cit., n. 68, p. 287. 154 As Hartsays, 'wemightas well attemptto deducefromthe existenceof the historyof warfareor the scienceof strategythat all wars are one or all armiesare one': 'Kelsen'sDoctrine of the Unity of Law', op. cit., n. 6, p. 322. 155 PTL, pp. 328-47. Compare GTLS, especially p. 388; Peace Through Law (1944). The issue, of course, affectsquestionsof federalism. 156 The expressionof the distinction here depends on the distinctionbetween legal norm and legal proposition. 157 Kelsen's fairly early characterization of the basic norm as a 'minimum'of naturallaw ('Natural Law Doctrine and Legal Positivism',op. cit., n. 20, p. 437) cannot survivehis laterdistinguishing betweenlegal norm and legal proposition.What applies to the distinctionbetweeninternational and local law also appliesto issues of federalism. 158 EspeciallyFC;PTL, pp. 193-211(translationmodified),223. WhenKelsenexpressesthe difference betweenthe two situationsby sayingthatin the robber's case 'anevil willbeinflicted' whereasin that of the tax official'an evil oughtto be inflicted'(PTL, p. 45), he anticipates Hart's'gunmansituation' distinctionbetweenbeing obliged and havingan obligation:Hart, op. cit., n. 111,pp. 19ff,80ff. 159 PTL, pp. 44-50; compare Augustine, City of God, bk. 4, ch. 4. Hart appears to begin from a Weberian standpoint, yet Hart's 'external point of view' applies only to values and not to descriptionof what is to be valued, and from Kelsen's standpointHart's 'recognition'theory is vulnerableto Kelsen'smuch earliercriticismsof Bierling:Hart, op. cit., n. 111,passim;PTL, p. 218n.;J. Raz, op. cit., n. 64. 160 FC, p. 117;ATN, pp. 206-7;compareH. Vaihinger,ThePhilosophy of 'AsIf (1911;tr. C. K. Ogden, 2nd ed. 1935) 97-100. Kelsen had been aware of Vaihinger'sbook and its conceptualizationof fictionssinceat least 1919:'Zur Theorie mit besonderer Fiktionen: derjuristischen Beriicksichtigung vonVaihingers des Als-ob[Onthe Theoryof LegalFictions:withparticular reference to Philosophie Vaihinger'sPhilosophy of As IfJ'(1919) in WRS, pp. 1215-41.The 'fiction'version of the 'basic norm'conceptwasfirstannouncedin discussionreportedin Schmdlz,op. cit., n. 89, pp. 119-20.The full argumentis givenin FC and ATN. It is presentedonly partiallywhenit firstappearsin English: 'On the PureTheoryof Law', op. cit., n. 9, p. 6.
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161 'Was ist ein Rechtsakt?[What is a Legal Act?]' (1952) in WRS, pp. 1381-93 at 1390-1. 162 PTL, p. 204n. 163 C. Martyniak, 'Le Problkmede l'Unite des Fondementsde la Theoriede Droit de Kelsen [The Problem of the Unity of the Bases of Kelsen's Theory of Law]' (1937) 7 Archives de Philosophie du Droit et de Sociologie Juridique 166-90 at 185; compare H. Klenner, Rechtsleere[A Legal Void (an awful pun on Rechtslehre,legal theory)] (1972) 39. 164 Compare N. Lavand, 'Hans Kelsen ou le Cubisme[Hans Kelsen or Cubism]' (1986) 9 Cahiers de Philosophie Politique et Juridique95-114. 165 J. Wr6blewski, 'Kelsen, the Is-Ought Dichotomy and Naturalistic Fallacy [sic]' (1981) 138 RevueInternationalede Philosophie508-17 at 515. I have suggested elsewhere a philosophical equivalent of paint and canvas: 'Closure and the Legal Norm: an Essay in Critique of Law' (1987) 50 Modern Law Rev. 908-33 at 916-22. 166 Varga, op. cit., n. 2, p. 137. 167 See, further, my 'Kelsen and the Exegetical Tradition' in Tur and Twining, op. cit., n. 8, pp. 123-47; 'Closure and the Legal Norm', op. cit. n. 165; P. Amselek, 'Kelsen et les Contradictionsdu PositivismeJuridique[Kelsen and the Contradictions of Legal Positivism]' (1981) 138 Revue Internationalede Philosophie 460-73. 168 As does Pashukanis, op. cit., n. 6. 169 Thus, Kelsen's critique of Pashukanis does not take seriously Pashukanis's analyses of 'legal fetishism': CTL, pp. 89-111. 170 On the relation of the pure theory to Marxism, see generally the Hans Kelsen-Institut symposium Reine Rechtslehre und marxistische Rechtstheorie [Pure Theory of Law and Marxist Theory of Law] (1978). Kelsen fell into the error of understanding Marxism solely as the eastern Marxism of economic determinism, whose capacity for critical legal theory was very limited: CTL, especially p. vii. However, Kelsen's opposition to Marxism was not bigoted: his willingness to take Marxist thinking seriously (for example, 'Allgemeine Rechtslehreim Lichte materialistischerGeschichtsauffassung [General Theory of Law in the Light of the Materialist Conception of History]' (1931) 66 Archivfiir Sozialwissenschaftund Sozialpolitik 449-521) nearly got him into an extermination camp. 171 Although occasionally he examines common modes of expression, he does so speculatively, in order to clarify his own vocabulary; he does not treat such expressions as evidence of meaning, in the manner of 'ordinary language' philosophy or of semiotics (for example, the discussion of 'law', 'Recht', etc. in PTL, pp. 30-1). The greater attention to language in his last book is just painful: for one thing, his conception of linguistic meaning is wholly referential, with no grasp of Wittgenstein's (or Bentham's) conception of meaning as use, though Wittgenstein is occasionally cited (ATN, pp. 24-32). Indeed, his differentiation between an act of will or thought and a speech act may be a deliberate evasion of linguistic philosophy. However, Kelsen's attention solely to logic does not, by itself, exclude the possibility of adding into his theory an examination of legal norms as rhetoric. 172 Criticism that is merely negative tends to preserve the terms of that which it negates; to emancipate, criticism needs to transformthe subject matter of the critique. 173 See C. Schmitt, 'The Leader Protects the Law' (1934), tr. I. Stewart (forthcoming in InternationalJ. of the Sociology of Law).
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STEWART Critical Legal Science of Kelsen

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STEWART Critical Legal Science of Kelsen

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JOURNALOF LAW AND SOCIETY VOLUME17,NUMBER 3, AUTUMN 1990

The CriticalLegalScienceof Hans Kelsen

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