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Kelsen's Pure Theory of Law
Author(s): Erich Voegelin
Source: Political Science Quarterly, Vol. 42, No. 2 (Jun., 1927), pp. 268-276
Published by: Academy of Political Science
Stable URL: http://www.jstor.org/stable/2142789
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IN
1925
made in a
in systematicformthe contributions
summarizing
on theoreticalquestionsof legal
seriesof earliermonographs
philosophy,
togetherwiththe resultsof his experienceas an expert
adviserto the AustrianRepublic,as theauthorof the AustrianConCourt
stitution,
and lateras a memberof the AustrianConstitutional
). Based on fifteen
( Verfassungsgerichtshof
yearsof painstaking
researchand practicalworkof thehighesttype,thistreatiseis thefirst
greatsystemof GermanStaatslehresince GeorgJellinek'swork. It
is likelyto be thestandardtreatiseon thesubjectforsometime. Its
forthesciencesof
achievement
and itsimportance
rankas a scientific
in Germany
are recognizedby itsreceptioninto
law and government
the Enzyklojcaedieder Rechts- and Staatswissenschaft.
It is impossible
in a shortreviewto deal withevena smallnumber
Kelsen. He dividesthesubof theproblems
expoundedbyProfessor
ject into threeparts. The firstdeals with thenatureof thestate,
going into detailed analysisof the relationsof the stateto society,
on the parallelsbetweencertainlegal
moralsand law,withsidelights
of
and theologicaltheories:forexample,betweenthe autolinmitation
thestateand theadoptionof humanformby thedeity,and between
theproblemsof statewrongand theodicy. The second parthas the
generaltitle "IValidityof the Order of State", with the sub-title
" Statics", and is devotedto such problems
as sovereignty,
therelaand
law, centralization
tions betweenstate law and international
confederations
colonies,federations,
self-government,
decentralization,
and unions. The thirdpart deals withthe" Dynamics"of governlayersof thelegalsystemsuchas theconstitution,
ment: thedifferent
statutelaw,courts,executionof judgments;theseparationofpowers;
and democracy,
thepositionofstateofficials,
autocracy
representation,
monarchy
and republic. The bookcloseswitha chapteron formsof
and philosophy.
government
For information
on anyparticular
partin thiswealthof materialthe
book itselfmustbe consulted. I wishto pointouthereonlysomeof
thatmaybe less well
theunderlying
principlesof itslegal philosophy
I Hans Kelsen, A4igemeine
Staatslehre,vol. 23 of Enzyklopaedieder Rechts-Una
Staatswissenschaf/.Berlin,1925.
268
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KELSEAV'S PURE
THEORY
OF LAW
269
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270
[VOL.XLII
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No. 2]
KELSEN'S
PURE
THEORY
OF LAW
27I
stated in the firstpart of the rule. Kelsen adopts for the whole rule
the formula:
If Mh+ E (or Mu + E), thenZ -e- M.
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272
POLITICAL
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introducing the ethical purpose into the legal means, should not
obscure the issue. Legal concepts in the strict sense are confined to
enforcingaction and operativefacts. Every so-called legal relationof
a complicated type may be dissolved easily into these elementaryconcepts. A rightmeans that afterthe occurrenceof a certain behavior
on the part of another person, affectingme, I may request the courts
to exact damages from him. A duty means that when I behave in a
certainway, the person affectedmay request the courts to exact damages from me. A privilege means that when I behave in a certain
way, no one can sue me for damages (e. g., when I have a license).
When a condition of no-rightexists,e. g. when I have given another
person a license, I may not exact damages fromhim forbehavior permittedby the license. Power means that my behavioris an operative
fact in changing another person's legal status (e. g. the case of an
offer). Liabilitymeans that anotherperson's behavior is an operative
fact in changing my legal status (e. g. I have the power to accept the
offer). Immunitymeans that another person's behavior is no operative fact in changingmy legal status (e. g. the case of tax exemption).
Disability means that my behavior is no operative fact in changing
anotherperson's legal status (e. g. I cannot sue and get judgmentafter
the statute of limitationshas run). The concepts thus analyzed may
be indispensable in the description of social relations,but they are
no elementarylegal concepts.
As a systemof law is part of the realm of essence, its categoriesare
differentfrom those of existence, the most notable differencebeing
that the categoryof causality has no meaning for law. Between the
statement,on one hand, of operativefacts in the firstpart of the pure
and simple legal rule, and on the other hand the statementof social
action, there is no causal relation. Theft may be the cause of imprisonment,but even when the police do not catch the thief and the
expectationsof the law-abiding citizen are disappointed, the ideal relation betweenthe operativefacts constitutingtheftand the penalty of
imprisonmentis not destroyed; even when the thiefactually escapes
he oughtto be punished. To distinguishthe peculiar ideal relationof
the oughtto be fromthe causal existentialdetermination,Kelsen introduces the term imputation(Zurechnung); imputationcreates in the
realm of essence the connection between operative fact and enforcement parallel with,but independent of, the causal relation between
them.
Other peculiar legal categories are those of independence and substance. The category of independence, usually called sovereignty,
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No.
2]
KELSEN'S
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THEORY
OF LAW
273
coherentlegalsystemfrom
of an internally
theindependence
signifies
anysuperiorset of legal rules. The charterof a corporationis not
sovereignbecause its validityis dependenton the state issuingthe
charter;a statuteis not sovereignbecauseitsvaliditydependson the
of the legal orderthat is the
constitution;onlythehigheststratum
forall therestmaybe called sovereign. Sovereignty
originofvalidity
ofa statemeansthatthereis no legalorderabove thestatefromwhich
thelegalorderof thestateitselfderivesitsvalidity.
clashes withthe
But at this point the theoryof state sovereignty
problemsof international
law. As a matterof fact,we have in our
" bywhich
present-day
international
law the processof "' recognition
a stateis acceptedas a memberof the societyof nationsand has to
obeycertainrulesof international
intercourse.The international
legal
orderrisesabove thelegal ordersof theindividualstatesand thereis
one and
goodreasonto namethishighestorderas thetrulysovereign
to considerthe statesentirely
devoidof sovereignty.This is not a
mereformof language,forin thecase of a nationalrevolution,
when
newinstitutions
are createdin a waynot providedbytheformer
conthe old and the new legal orderare entirely
stitution,
disconnected.
The connection
createdbetweenthemby international
law is a very
substantial
one, as usuallythemostimportant
partof it is therecognitionof the foreigndebtsof the old government
by the newgovernment. In case such debts are notat once recognizedinternational
is usuallybroughtto bearuponthenewgovernment
pressure
untilthe
" connection
" of theotherwisedisconnectedlegal ordersis effected.
The stratum
of international
law producesunityin the legal history
whenotherwise
ruptures
wouldhave occurred.
The categoryof substance,usuallycalled state,means the internal
coherenceofanylegal orderas a unit. It indicatesthateverypartof
it is derivedfromsomesuperiorpart up to the highestlayerof legal
rulesin theconstitution
or in international
law. There is actuallyno
difference
betweenthestateand thelaw forall legalpurposes. There
maybe a socialreality
in therealmofexistencethatproducesthelegal
orderwithitsunityor substance,butto mix up the problemof existence withthe legal problemof state is, to Kelsen,an unpardonable
mistake.
It seldomhappensthata legalphilosopherhas a chance to put his
theoriesintopractice. ProfessorKelsen had thesingularopportunity
of draftingthe AustrianConstitution
in accordancewithhis principles. The resultis a legal documentthatfroma technicalpointof
viewmayfairlybe called thebestof its kind nowin existence. The
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274
POLITICAL
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of thecontentto
of thequalityhas to be the restriction
firstcriterion
actions,and, so faras they
statements
of operativefactsforenforcing
behavof the enforcing
statements
are embodiedin the constitution,
iors. The constitution
oughtnot to containanymatterof purelydeorof merelypoliticalimportance,
e. g., a preamble,
character
claratory
or anytalk about legislativeand executivepowersat large that are
wouldbe the
vestedin some personor another. A secondcriterion
of thesestatements.
completeness
livesup to bothof thesecriteriato a reThe AustrianConstitution
due to the
markableextent. There are, however,severaldeficiencies
thereare one or
politicaldemandsofthepartiesconcerned;moreover,
due to oversight. In conformity
to the
twopointsof incompleteness
in generalthe languageis confinedto theone
principleof restriction
(jurisdiction),meaninga set of operlegal conceptof Zustaendigkeit
are in the mainnothing
ativefacts. The clausesof theConstitution
ofjurisdictions.For instance," The federalarmyhas
butdefinitions
to protectthebordersof therepublic" (art. 79, v). This clausedeof thefederalarmyand clearlyimpliesthatit is not
finesa jurisdiction
statedin the
to be usedforanyotherpurposesiftheyare notexpressly
is also definednegatively,for example,
constitution. Jurisdiction
to questionthevalidityof lawspub" The courtshaveno jurisdiction
lishedin the properway" (89, i). Again," To be valid all acts of
the presidentmust be signed by the chancelloror the competent
" (67, 2).
ministers
" contents
the " unnecessary
arereducedto
Beyondsuchstatements
a minimum. There is no conventional
preamble; yet,forreasonsof
"political optics," it was impossibleto avoid such declarationsas
"Austria is a democraticrepublic" ( i, i ). This sentencedoes not
definean operativefact,it has no legal consequences,and froma
technicalpointof view,it oughtto be eliminated. The statestrictly
mentthat"The law of therepublicissuesfromthepeople" (I, 4) is
but evenlegallyincorrect,
forthelawsof therenotonlyunnecessary
publicissuefromtheNationalCouncil; onlyin therarecases of initito thestateativeand referendum
maysome legal sense be attributed
the
ment. A similarcase is presentedby the postulate,introducing
sectionon juries,that "The people mustparticipatein the judicature". Again,notthepeople,butthejurors,participate;and therehas no legalconsequence. Suchcases, howforethewholestatement
ever,are veryfewand all of themare are pointedout by Professor
as unfortunate
inroads
on the constitution
Kelsenin hiscommentary
of politicaldemandson thedomainofscience.
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No.
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THEORY
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276
POLITICAL
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lationon certainimportant
laborproblems,and havetenaciously
preserved,as regardslabor legislation,the survivalsfromthe" natural
law" period.
thelegalsystemintoan ideal realmofmeaningsand
By transferring
reducingit to an instrument
Kelsen destroys
anyundue respectfor
existinglegalinstitutions.The contentof law is shownto be whatit
is: not an eternal,sacred order,buta compromise
of battlingsocial
forces-and this contentmaybe changed everyday by the chosen
representatives
of the people accordingto thewishesof theirconstituencieswithoutfearof endangering
a divinelaw. The political
importof hisdoctrineexplainsin part thecriticalstandthat Kelsen
takesagainstcertaintheoriesof his predecessors,
particularly
against
the theoryof autolimitation.Under the Germanconditions
of conof the statewas interpreted
stitutional
government
theautolimitation
of theabsolutepowersof government,
as a limitation
embodiedin the
of
the
monarch,by thecontrolling
power parliament, amountof limitationbeing flexible. Consequentlyit was a perfectly
legal procedure,whenever
thecontrolof theparliament
becametoo oppressive
of themonarch,
in someway,
to evade thislimitation
to the interests
of parliament,
and to enjoya periodof absolue. g., by a dissolution
tism. In a truedemocracythelegalorderis notproducedbylimiting
in theplainestpossible
somebody'sunlimitedpowers,but bydefining
ofofficials. No stateentityhides
wayoperativefactsand jurisdictions
behindthelaw and issuesthelegal rules; everyrulecan be tracedto
itsoriginin a definitegovernmental
agency,whichagain is buta part
set up forturning
out legal rulesin accordancewith
in themachinery
social groups. The pure theoryof law thus
thedesiresof different
notonlyan important
in legalanalysisand technique,
signifies
progress
fromthe half-absolutistic
but also a development
philosophyof the
GermanEmpiretowardthespiritofthenewdemocracy.
ERICH
VOEGELIN
VIENNA
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