Kelsens Doctrine of Legality

Maarten Stremler LLM

Table of Contents

1. Introduction ...................................................................................................................................... 1
2. The Rule of Law .............................................................................................................................. 3
2.1. The Pure Theory of Law .......................................................................................................... 3
2.2. The Adequacy-Thesis ............................................................................................................... 4
2.3. The Identity-Thesis .................................................................................................................. 6
3. The Legal Order ............................................................................................................................... 7
3.1. Legal Meaning ......................................................................................................................... 7
3.2. Legal Hierarchy ........................................................................................................................ 8
4. Legality .......................................................................................................................................... 10
4.1. Nullity .................................................................................................................................... 10
4.2. Voidability .............................................................................................................................. 12
5. Constitutional Legality................................................................................................................... 14
5.1. The Constitution ..................................................................................................................... 14
5.2. Constitutional Review ............................................................................................................ 16
6. Conclusions .................................................................................................................................... 18

1. Introduction

In this paper I reconstruct Hans Kelsens doctrine of legality. By legality I mean here, loosely
speaking, the requirement that public authority must be exercised in accordance with the law.
Legality is usually regarded as a necessary condition for the legitimacy of public authority.
Legality is a common principle in the national constitutional traditions of continental
Europa.1 It is also a principle in European constitutional law.2 Although these different legal
1 Cf. A. von Bogdandy, Gubernative Rechtsetzung. Eine Neubestimmung der Rechtssetzung und des
Regierungssystems unter dem Grundgesetz in der Perspektive gemeineuropischer Dogmatik, Tbingen:
Mohr Siebeck 2000, p. 154-216.

orders all recognize the general requirement of legality, they differ greatly when it comes to
what they recognize as the more specific requirements that ensue from legality. As a
consequence, they also differ greatly in their implementation of legality.3 In order to develop
a clear concept of legality, one could, on the basis of comparative research, look for a
common denominator with respect to legality between these different legal orders.
Kelsen employs an alternative method. His doctrine of legality is part of his more
encompassing pure theory of law (Reine Rechtslehre).4 Kelsens method to develop a legal
science is analogous to and inspired by Immanuel Kants method to develop a natural
science.5 According to Kant, natural science starts with the development of an a priori
conceptual framework. This is the metaphysical (transcendental) part of natural science.
Then, in the empirical part, this framework is applied to empirical matter.6 Likewise, Kelsens
theory is meant as an a priori (pure) conceptual framework that can be applied to positive
legal orders, in order to scientifically understand them.
The pure theory of law is usually regarded as a theory about the nature of law and,
hence, classified as belonging to legal philosophy. In this paper, I do not engage with
philosophical issues. Instead, I treat the pure theory of law as a normative constitutional
theory. Kelsens theory, I will show, can be regarded as a theory of the rule of law
(Rechtsstaat).7 In fact, Kelsen explicitly aimed at the development of such a theory.8
My reconstruction of Kelsens doctrine of legality is guided by two related questions:
1) what does legality require? and 2) how can this effectively be realized? The first question
2 Cf. A. von Bogdandy, Founding Principles, in: A. von Bogdandy & J. Bast (eds.), Principles of European
Constitutional Law, Oxford: Hart 2009, p. 11-54.
3 The most salient differences, of course, concern constitutional review. Cf. M. de Visser, Constitutional
Review in Europe: A Comparative Analysis, Oxford: Hart 2013.
4 See in particular H. Kelsen, Reine Rechtslehre (2nd revised and enlarged edition), Vienna: sterreichische
Staatsdruckerei 1992 [1934]. The second edition of the book (1960) is a greatly expanded version of the first
edition. Nevertheless, most of the content of both editions is consistent with each other.
5 Cf. H. Kelsen, Society and Nature: A Sociological Inquiry. London: Kegan Paul 1946.
6 I. Kant, Metaphysische Anfangsgrnde der Naturwissenschaft, Hamburg: Meiner 1997 [1786].
7 Cf. L. Vinx, Hans Kelsens Pure Theory of Law. Legality and Legitimacy, Oxford: Oxford University Press
2007, passim.
8 H. Kelsen, Rechtsstaat und Staatsrecht [1913], in: H. Klecatsky, R. Marcic & H. Schambeck (eds.), Die
Wiener Rechtstheoretische Schule. Ausgewhlte Schriften von Hans Kelsen, Adolft Julius Merkl und Alfred
Verdross, 2 Vols., Wien: Europa Verlag 1968, Vol. 1, p. 1532.

concerns the relation between public authority and law. Kelsens answer must specify the
conditions under which the exercise of public authority meets the standard of legality. The
second question concerns the actual realization of legality. Kelsens answer must indicate the
legal guarantees for this. The assumption here is that legality cannot enforce its own
realization.
I will interpret Kelsens work in light of these questions and sketch his answers,
including the underlying argumentation. I will not discuss the intellectual context in which
Kelsen developed his ideas. Nor will I discuss the reception of his work. Kelsen provides a
comprehensive account of constitutional democracy.9 I will only focus on the constitutional
part of this account. As a consequence, my reconstruction will not entail a full justification of
public authority. For Kelsen, legality is a necessary but not a sufficient condition for the
legitimacy of public authority.
The structure of this paper is as follows. In section 2, I analyze Kelsens conception of
the rule of law, of which legality is an essential element. This conception is based on a
particular understanding of the legal order. In section 3, I analyze Kelsens understanding of
the legal order. In section 4, I turn to legality as such. In section 5, I discuss the most
important guarantee of legality: constitutional review. Finally, in section 6, I draw my
conclusions.

2. The Rule of Law

2.1. The Pure Theory of Law

Kelsen developed his pure theory of law in reaction to two types of legal philosophy that
were prevalent at the time and that claimed to be scientific (wissenschaftlich). Theories of the
first type tried to understand the normativity of law in terms of natural or social facts.
Theories of the second type determined the concept of law in terms of moral or political
ideals, justice for instance. Kelsen found both types of legal philosophy seriously flawed.
The problem with theories that try to understand the normativity of law in terms of
natural or social facts is that they disregard the fundamental difference between is (sein) and
9 For Kelsens (often neglected) theory of democracy, see in particular H. Kelsen, Vom Wesen und Wert der
Demokratie (2nd revised and enlarged edition), Tbingen: Mohr 1929 [1920].

ought (sollen).10 Legal norms are not statements about states of affairs. They are
prescriptions for human conduct. Legal norms belong to the ontological domain of ought.
This domain cannot be reduced to the ontological domain of is. The difference between
these domains is fundamental in the sense that it does not allow for an explanation in terms of
even more fundamental concepts, Kelsen claims.
Theories that determine the concept of law in terms of a moral or political ideal may
acknowledge the difference between is and ought. They are problematic for another
reason: they disregard the difference between knowing (erkennen) and willing (wollen).
They turn legal science into ideology, as Kelsen puts it.11 These theories are not developed
in order to know and understand legal orders, but in order to justify or criticize them. As such,
they serve political interests. Legal science, however, has to be separated from legal
politics.12 Legal science can only be scientific if it limits itself to describing the law.
Thus, against theories of the first type, Kelsen claims that the object of legal science
law is irreducibly normative; against theories of the second type, that legal science must be
purely descriptive. This latter claim has made Kelsen the father of methodological positivism.
The object of legal science is normative, but legal science itself is not; at least not in the sense
that it would prescribe how the law ought to be.

2.2. The Adequacy-Thesis

Kelsens work shows him not only as a methodological positivist, though, but also as an
ardent defender of the rule of law.13 Prima facie, this is a contradiction. How could one aspire
to develop a value-neutral legal theory and at the same time endorse a particular
constitutional ideal?
Although Kelsen is not very clear on this point, I do not think Kelsen contradicts
10 Kelsen, Reine Rechtslehre, p. 4-9.
11 Kelsen, Reine Rechtslehre, p. 107-113.
12 Kelsen, Reine Rechtslehre, p. 1.
13 See in particular H. Kelsen, ber Staatsunrecht. Zugleich ein Beitrag zur Frage der Deliktsfhigkeit
juristischer Personen und zur Lehre vom fehlerhaften Staatsakt [1914] in Die Wiener Rechtstheoretische
Schule, Vol. 1, p. 957-1057; H. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit [1929] in Die
Wiener Rechtstheoretische Schule, Vol. 2, p. 1813-1872 and H. Kelsen, Wer soll der Hter der Verfassung
sein? [1931] in Die Wiener Rechtstheoretische Schule, Vol. 2, p. 1873-1912.

himself. I suggest that the relation between his ambition to develop a pure theory of law on
the one hand, and his endorsement of the rule of law on the other, can best be made clear by
what I call the adequacy-thesis. According to this thesis, the pure theory of law is the only
possible theory that is adequate to the full realization of the rule of law.14
A precondition for understanding the adequacy-thesis is to understand the relation
between the pure theory of law and its object. The object of legal science, in its pure part, is
the a priori structure of law. This structure is given; it is part of reality. Legal science, by
contrast, is not simply given. It has to be developed. By describing its object, the pure theory
of law produces scientific knowledge. The most important principle that has to guide this
process of knowledge-production is the principle of non-contradiction.15 The pure theory
aims at a body of knowledge that consists of a unified system, free from contradictions. This
system fully corresponds with its object. Kelsens assumption here is that the a priori
structure of law forms a coherent unity. As a consequence, there can be only one pure legal
science.
The rule of law, in contrast to legal science, is a practical ideal. It has to be
implemented. According to this ideal, the states power should, as far as possible, be
subjected to legal constraints that protect the subjects of the state against arbitrary exercises
of the states power. Rule of law, not rule of men that is the maxim.
As I will elaborate below, for Kelsen a state that conforms to the rule of law is a state
with a coherent legal order. Coherence here means that the norms that belong to the legal
order as well as the acts that are based on this order do not conflict with each other. The full
realization of the rule of law amounts to the realization of a legal order that is free from
contradictions and that provides for legal instruments that guarantee this coherence in the
long run.16
The rule of law is not a corollary of the pure theory of law. The pure theory itself is
14 My account differs from the one offered by Vinx. Vinx interprets Kelsens pure theory contrary to Kelsens
self-understanding as in instance of political positivism, i.e. as a theory with an inherent normative
(political) commitment. See Vinx, Hans Kelsens Pure Theory of Law, in particular p. 1-31 and 208-221.
15 Cf. Kelsen, Reine Rechtslehre, p. 74-75. Kelsen here follows Kant. Cf. I. Kant, Kritik der reinen Vernunft,
Hamburg: Meiner 1998 [1781], p. 250-253.
16 Cf. Kelsen, Reine Rechtslehre, p. 209-212. In order to fulfill its function to protect the states subjects, the
rule of law has to be extended with democracy. As indicated in the introduction, I will not discuss Kelsens
theory of democracy.

not committed to a normative aim. It merely describes the a priori structure of law. Endorsing
the rule of law is based on a choice external to the pure theory.
The pure theory and the rule of law, nevertheless, have a special relation. Both the
development of the pure theory and the realization of the rule of law are guided by the
principle of non-contradiction. In the same way as the pure theory is the only coherent theory
of law, the rule of law is the only coherent practical implementation of law. This makes the
pure theory adequate to the rule of law. The pure theory perfectly aligns with the aim to
subject public power to legal constraints. Other theories, by contrast, put ideological
obstacles in the way of realizing this aim. A distorted picture of the a priori structure of the
law, Kelsen believes, can only hamper the realization of rule of law.

2.3. The Identity-Thesis

The prime examples of legal theories that are not adequate to the rule of law, Kelsen claims,
are dualist theories about the relation between law and state.17 Such theories hold that the
political authority of the state is prior to the law. Essential for statehood is the capacity to
exercise public authority independent of legal authorization.
The most influential representative of dualist theories of law and state at the time was
George Jellinek. According to Jellinek, the state exists as a factual power. The states
commitment to the rule of law is the result of a voluntary obligation (Selbstverpflichtung).18
This commitment cannot be unconditional, for that would jeopardize the states capacity to
effectively guarantee order. If need be, the state must be able to act even if it is not legally
authorized to do so and even if this would imply a violation of the law.
Against Jellinek and other dualists, Kelsen claims that a state above the law is
inconceivable. When we say that the state acts, we are saying, in effect, that certain acts that
are performed by human beings must be attributed to the state. Such an attribution, however,
presupposes a criterion on the basis of which we can distinguish between acts of state and
acts that are not acts of state. In Kelsens view, this criterion can only consist of legal norms.
An act can only be an act of state if it is based on a norm that empowers certain individuals to
17 Kelsen, Reine Rechtslehre, p. 289-320. Cf. Kelsen, ber Staatsunrecht and H. Kelsen, Der soziologische
und der juristische Staatsbegriff, Tbingen: Mohr 1928, p. 136-140.
18 G. Jellinek, Allgemeine Staatslehre (2nd enlarged edition), Berlin: Hring 1905 [1900], p. 367-371.

act in the name of the state. And for individuals so empowered to successfully act in the name
of the state, they have to fully comply with the authorizing norm. Actions that lack a legal
authorization or violate the law, even if carried out by individuals that have the intention to
act in the name of the state, cannot be attributed to the state. As a consequence, it is
impossible to conceive of acts of state that are illegal.
This conclusion is captured by Kelsens identity-thesis: state and law are identical.
The state is a legal person. Law and state necessarily coincide.
Dualist theories threaten the realization of the rule of law, Kelsen argues. By
mistakenly understanding the state as a real person, independent of the law, they allow for
representatives of the state to suspend the law or to violate the law and still continue to act in
their public capacity. Such representatives can treat the law as an instrument; they can use it
as they see fit. If adhering to the law does not serve their interests, they can simply put the
law aside. The identity-thesis, by contrast, enables us to denounce such acts as illegal and to
describe them as acts that fail to qualify as exercises of public authority. We can only speak of
an exercise of public authority if the exercise of the states power is subject to the law. The
rule of law is the normative reformulation of this relation. The pure theory of law, therefore,
is perfectly compatible with the rule of law.

3. The Legal Order

3.1. Legal Meaning

The identity-thesis leaves us with a question: what counts as law? Representatives of the state
who apparently violate the law could claim that their actions are in fact lawful. What
determines whether they are right?
To answer this question, Kelsen argues, it is necessary to distinguish between
subjective and objective legal meaning.19 The subjective legal meaning of an act is the
interpretation of this act by those who perform it. For example, when legislators raise their
hands during a voting procedure, they will understand this act as the enactment of a statute.
They interpret the act not merely as a physical movement, but as something that has legal
consequences.
19 Kelsen, Reine Rechtslehre, p. 2-9.

It is clear, however, that people may be mistaking about the legal meaning of their
acts. The legislators may have failed to observe a procedural norm, for example. They
thought they were enacting a statute, but in fact they were not. For this reason, the pure
theory of law distinguishes between what people claim to be the legal meaning of their acts
and objective legal meaning. Acts can only have objective legal meaning when they are
performed in full compliance with the law.
But how do acts gain objective legal meaning? According to Kelsen, an act gains
objective legal meaning by a norm that confers this meaning on it. For example, there can be
a norm that determines that voting in parliament on a text, subject to certain conditions, turns
this text into a statute. When the legislators raise their hands, the text becomes a statute, i.e. a
valid legal norm (or a set of legally valid norms). Due to the norm, the act of raising hands
can be interpreted as having this legal consequence.20
A norm can only confer objective legal meaning on an act when the norm itself has
objective legal meaning, i.e. when the norm is valid. A norm is valid when it is created in
accordance with another, higher norm that allows for its enactment. This chain of
authorization, obviously, cannot continue indefinitely. At some point, there must be a norm
that is valid but that has not been authorized by another norm. This norm is the basic norm
(Grundnorm).21 The validity of the basic norm must be presupposed, Kelsen thinks. If the
basic norm would not have intrinsic validity, its validity would depend on social facts. That,
however, would make the validity of all other norms, in the end, also subjective.

3.2. Legal Hierarchy

Kelsen conceives of the law as a set of norms. Legal norms do not occur singly. They form an
order. This order has a hierarchical structure (Stufenbau).22 Each norm within the legal order
is located on a particular level. The apex of the legal pyramid is the basic norm. The basic
norm individuates the legal order.23

20 Norms function as schemata of interpretation (Deutungsschemen), as Kelsen puts it.

21 Kelsen, Reine Rechtslehre, p. 196-227.
22 Kelsen, Reine Rechtslehre, p. 228-282.
23 The question can be raised whether there can be multiple legal orders or only one legal order. Kelsen argues
for the latter. See his work on the relation between national and international law. Cf. Kelsen, Reine

The relation between legal norms is formal, not substantial. Norms do not belong to
the legal order because of their content, but because of the fact that their validity can be
traced back to the validity of other, higher norms and eventually to the basic norm. Higher
norms confer validity on lower norms. A lower norm is valid because it has been enacted in
accordance with a higher norm. The ordering principle of the legal order is authorization.
Kelsen conceptualizes norms as frames. Norms open up a discretionary space. For a
lower norm to be valid, it must fall within the discretionary space of the higher norm. The
higher norm must allow for its creation. If it does not, the lower norm is invalid. Norms
higher in the hierarchy allow for more discretion, norms lower in the hierarchy for less. The
basic norm is a blanket authorization.
The discretionary character of norms implies that the legal order is dynamic. Lower
norms fill out the discretionary space of higher norms. How they do this is contingent, from a
legal point of view. There is no standard of legal correctness here. As a consequence, it is
impossible to logically derive lower norms from higher norms. Lower norms are not the
result of a cognitive act, but the product of an act of the will. They are created. As Kelsen
puts it, the legal order consists of a chain of creation (Erzeugungszusammenhang).
This picture of the law as a dynamic hierarchical order has important consequences
for how we understand the relation between law and politics, Kelsen argues.24 Usually,
political and legal decisions are sharply distinguished. Whereas political decisions amount
to the creation of the law, legal decisions amount to the application of the law. The pure
theory of law undermines this sharp distinction.
Political decisions, in their paradigmatic form, are taken by legislators; legal
decisions, in their paradigmatic form, are taken by judges. Both legislators and judges must
act within the limits of their authorization. Legislators are bound by constitutional law; judges
are bound by the laws that regulate the case at hand. The difference between both types of
law is their place within the legal hierarchy and, hence, the extent of discretion they allow for.
Within the limits of discretion, legislators and judges are free. By taking decisions enacting
general laws, in the case of legislators; judging in individual cases, in the case of judges
legislators and judges concretize higher norms by creating new, more specific norms. The
Rechtslehre, p. 321-345.
24 Kelsen, Reine Rechtslehre, p. 239-260. Cf. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p.
1813-1818.

difference between these norms is that the norms created by legislators are usually very
general, allowing for much discretion, whereas norms created by judges are usually very
specific, allowing for almost no discretion.25 From the perspective of the higher norms, what
legislators and judges do amounts to the creation of the law. From the perspective of the
lower norms, by contrast, what they do amounts to the application of the law. The difference
is a difference of point of view. Legislators apply and create norms higher in the hierarchy;
judges apply and create norms lower in the hierarchy. The difference between political and
legal decisions, therefore, is only relative.

4. Legality

4.1. Nullity

According to the identity-thesis, state and law are identical. Now that we have seen that the
law consists of a hierarchical order of norms, we can try to understand how Kelsen translates
the identity-thesis into a normative principle, the principle of legality. At this point, Kelsen
turns from the pure theory of law to the practical ideal of the rule of law.
For Kelsen, legality, in general, means lawfulness (Rechtmigkeit).26 The principle of
legality demands lawfulness. In the context of the state, the principle has two objects. First,
the principle demands the lawfulness of acts of state. Second, the principle demands the
lawfulness of the law.
The demand that acts of state must be lawful seems to be tautological. The identitythesis implies that no act can constitute an act of state unless it conforms to the law. As a
consequence, every act of state is necessarily lawful. For the demand to make sense, we have
to take into account the subjective legal meaning of acts, i.e. the legal consequences
individuals attribute to their acts. The principle of legality is directed against individuals who
claim that they act in the name of the state, but in fact do not, because they lack authorization.
The principle forbids such acts. Acts that are purportedly performed in the name of the state
but do not have a legal basis are illegal. They are merely private acts, for which individuals
25 Note that for Kelsen norms are not necessarily general rules. Cf. Kelsen, Reine Rechtslehre, p. 4 and Wesen
und Entwicklung der Staatsgerichtsbarkeit, p. 1814-1815.
26 Kelsen, ber Staatsunrecht, passim; Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, passim.

10

carry personal responsibility.

Kelsens focus is not on the principle of legality as the demand that acts of state must
be lawful, but on the principle of legality as the demand that the law must be lawful. This
demand, of course, seems to be tautological as well. It is not, though, according to Kelsen.
As we have seen, the law consists of a hierarchy of norms. The demand of the
lawfulness of the law is the demand that norms lower in the hierarchy do not exceed the
limits set by norms higher in the hierarchy. This reformulation, however, still seems to be
tautological. Whether a norm is part of the legal order depends on its validity. A norm is valid
if it is created in accordance with a higher norm. The validity of all norms can be traced back
to the validity of the basic norm. As a consequence, the legal order can only contain valid
norms. But valid norms necessarily meet the demand of legality.
The demand that the law must be lawful is directed against the recognition of invalid
norms as part of the legal order. Representatives of the state may claim that they have enacted
a valid norm, but this claim itself cannot confer validity on the norm. Whether a norm is valid
depends on the objective criterion whether the creation of this norm was allowed for by a
higher norm. If the norm exceeds the limits set by norms higher in the hierarchy, the norm is
invalid. The principle of legality forbids such norms. Invalid norms are illegal. They do not
belong to the legal order. They are null.27
This leaves us with a question: who is to decide whether a norm is valid or null?
Every claim about the validity or nullity of a norm is from a practical point of view
subjective. Who is to decide whether such a claim is right, i.e. corresponds with the objective
reality of the legal order?
Kelsen argues that the authority to decide whether a norm is valid or null rests, by
default, by the ultimate addressees of the norm, i.e. by the actual individuals that are expected
to obey the norm.28 The authority to decide on the validity or nullity of a norm cannot be
deferred to representatives of the state, for this presupposes that the addressees of the norm
have already identified particular persons as representatives of the state. What determines
whether an individual is a representative of the state, however, depends on the validity of the
norm that purportedly authorizes this individual to act in the name of the state. Deference,
therefore, only begs the question. The conclusion is that the subjects of the law are entitled to
27 See in particular Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1827-1830.
28 See in particular Kelsen, ber Staatsunrecht, p. 1004.

11

decide for themselves whether or not they are faced with a case of nullity.

4.2. Voidability

The conclusion that the authority to decide on the validity of a norm rests by the addressees
of that norm is, of course, radical. It implies that the mere claim by an individual that a norm
is invalid frees him from the obligation to obey that norm.29 The individual may have good
reasons to believe that the norm is invalid. But he may also claim that the norm is invalid
simply because he does not like the norm and wants to be excused for illegal behavior. A
consequence of this position, therefore, would be that the legal order cannot fulfill its
practical function.30
For legality to be effectively realized, the principle of legality must be supplemented
by guarantees of legality, Kelsen argues.31 Guarantees of legality are legal instruments
designed to secure the actual realization of legality.
The primary guarantee of legality, in Kelsens view, is legality review. For the law
the objective legal order to be effectuated, it is necessary that individuals transfer their
authority to decide on the validity of norms to courts.32 This transfer introduces the category
of norms that are voidable. A voidable norm is a norm that can change from being valid to
being invalid. The norm, by default, is valid. But its validity can be challenged before a court.
The court scrutinizes whether the norm has been enacted in accordance with higher norms
and if it finds that it has not, it declares the norm void, i.e. invalid. Voidable norms, then,
29 It is important to realize here that the claim that one is faced with a case of nullity does not imply a denial of
legal objectivity as such. On the contrary, the claim in fact presupposses legal objectivity, for without legal
objectivity the concept of nullity would be meaningless. Furthermore, the claim does not entail that one has a
right not to obey valid legal norms. The claim only concerns the question who has the authority to decide on
the validity of norms.
30 Cf. Kelsen, Reine Rechtslehre, p. 271-274.
31 Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1826-1834.
32 Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1836; Kelsen, Wer soll der Hter der
Verfassung sein?, p. 1873-1912. Individuals could, of course, deny transferring their authority. The solution
to this problem, in Kelsens view, is factual, not legal. Whether individuals accept the authority of courts is
not guided by the principle of legitimacy (objective validity), but by the principle of effectivity. In an
effective legal order, people, by and large, accept the authority of courts. Kelsen, Reine Rechtslehre, p. 212215.

12

can only become invalid as a consequence of a legal act. Nullity, by contrast, does not require
such an act.
The transfer from individuals to courts of the authority to decide on the validity of
norms can only be partial, Kelsen stresses.33 Individuals have the authority to decide that
norms are invalid and, hence, null, unless positive law has explicitly determined that
particular norms are voidable.
According to Kelsen, legal theory cannot provide a general rule for where to draw the
line between nullity and voidability. At one end of the spectrum, one could imagine a legal
order that has no voidable norms at all. Here the claim that a norm is invalid automatically
leads to the nullity of the norm. As we have seen, this would imply that the legal order loses
its practical meaning. At the other end of the spectrum, one could image a legal order that
maximizes the category of voidable norms. Determining that all norms are voidable,
however, would be impractical as well. For that would imply that every norm that is
subjectively interpreted as a valid norm must be regarded as valid and, hence, binding, unless
the norm has been officially declared void.
Positive law must stipulate the criteria that distinguish voidable norms from norms
that are not voidable. Constitutions, for example, may determine that statutes must be
published in the public journal. Published statutes are voidable. By default they are valid. A
court could judge that a particular statute that has been published in the public journal is void,
but until this judgment, it must be assumed that the statute is valid. Statutes that are not
published in the public journal, by contrast, are null from the beginning.
The introduction of norms that are voidable necessitates a new formulation of the
principle of legality. In regard to voidable norms, the principle of legality forbids norms that
are void. Such norms are initially objectively valid but then become objectively invalid.
Translated into more practical terms, the principle of legality demands that representatives of
the state minimize the number of cases in which courts declare voidable norms void.

33 See in particular Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1826-34.

13

5. Constitutional Legality

5.1. The Constitution

In positive legal orders, the apex of the legal hierarchy is the constitution.34 Kelsen defines
the constitution, in the substantive sense of the word, as the set of positive norms that regulate
the creation of general norms.35 The substantive constitution determines the conditions for the
validity of general norms. In modern states, this means that the substantive constitution
regulates the legislative process. The substantive constitution can be written or unwritten.
The substantive constitution has to be distinguished from the formal constitution. The
constitution in the formal sense of the word is the document that is titled constitution.36 The
formal constitution usually contains the most important norms of the substantive constitution.
Norms that are placed in the formal constitution are usually harder to change than other
norms in the legal order. For example, amending the formal constitution may require a twothirds majority, whereas a simple majority may suffice for enacting ordinary laws.
The constitutional legislature may decide to enshrine in the formal constitution not
only norms concerning the substantive constitution, but also norms related to other important
political issues. Thus, many formal constitutions contain a catalogue of basic rights and
freedoms. Enshrining basic rights and freedoms in the formal constitution is meant to protect
the minority against the majority. Since amending the formal constitution usually requires a
qualified majority, revoking the basic rights and freedoms would need the consent of the
minority, or at least a part of it.
The formal constitution contains the highest norms of the legal order. The principle of
constitutional legality forbids the enactment of unconstitutional norms. Formulated as a
command, the principle demands that norms lower in the hierarchy conform to the norms of
the formal constitution.37
34 I leave aside here the question of international law. The constitution is the practical counterpart of the basic
norm. The basic norm has legal-logical status, whereas the constitution is positively enacted. Cf. Kelsen,
Reine Rechtslehre, p. 204-209 and p. 228.
35 Kelsen, Reine Rechtslehre, p. 228. Cf. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1839.
36 Kelsen, Reine Rechtslehre, p. 228-230. Cf. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p.
1840-1841.
37 Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1815-1816.

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Conformity with the formal constitution takes two forms. Lowers norms must be
enacted in accordance with the formal constitution. If they do not, they are unconstitutional
for formal (procedural) reasons. But lower norms can also be unconstitutional because they
are substantively flawed. This is the case, for example, if a lower norm violates a right or
freedom enshrined in the formal constitution. However, the distinction between formal and
substantive unconstitutionality is only relative, Kelsen stresses. In both cases, the lower norm
is unconstitutional because it exceeds the limits set by the formal constitution.
Kelsen distinguishes between direct and indirect violations of the formal constitution.
If the unconstitutional norm is located one level below the formal constitution in case of
ordinary laws, for example then the norm is directly unconstitutional. If the
unconstitutional norm is located further down the hierarchy in case of an administrative act,
for example then the norm is indirectly unconstitutional. The principle of constitutional
legality is primarily directed against norms that are directly unconstitutional.
The principle of constitutional legality forbids that the legislature enacts laws that
violate the formal constitution. Since it is not self-evident that the legislature complies with
this prohibition, the principle of constitutional legality must be supplemented with guarantees
of constitutional legality. In Kelsens view, an effective legal order provides for legal
instruments that ensure constitutional legality.38
One possible guarantee of constitutional legality is ministerial responsibly. Cabinet
ministers could be made accountable for conformity of legislation with the formal
constitution. If a minister has signed a law that does not conform to the formal constitution,
he should resign. It is even possible that he has to face criminal charges. The problem with
such a guarantee, however, Kelsen points out, is that it leaves the unconstitutional law itself
unaffected. As long as the law is not repealed, the law remains valid. What is needed,
therefore, is an instrument to invalidate unconstitutional laws.

38 Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1815-1816 and p. 1834-1845.

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5.2. Constitutional Review

In most positive legal orders, laws that have been enacted by the legislature are voidable.
When the laws satisfy certain criteria, like being published in the public journal, the validity
of such laws is presupposed. From an objective point of view, however, these laws could be
unconstitutional and, hence, invalid. The principle of constitutional legality requires that
unconstitutional laws are invalidated. The question is who should be authorized to decide on
the constitutionality of laws.
One option is to grant this authority to the legislature.39 In positive legal orders this
option is usually realized by stipulating in the formal constitution that courts do not have the
authority to review the constitutionality of laws. As a consequence, this authority rests by the
legislature. Only the legislature can repeal legislation. Every law that has been enacted by the
legislature is valid, unless the legislature has repealed the law. And as long as the legislature
has not repealed the law, it has to be assumed that the law conforms with the formal
constitution.
Granting the legislature the authority to decide on the constitutionality of laws leaves
the legislature with a choice: it can enact laws in accordance with the norms of the formal
constitution, but it can also enact laws in other ways, not in accordance with the norms of the
formal constitution. In the latter case, the resulting laws can nevertheless be valid, because
the sole criterion for validity (and constitutionality) is the opinion of the legislator. Thus, the
formal constitution would provide for a direct and an indirect way of enacting valid laws.
Clearly, in this situation the formal constitution is no longer binding. The formal constitution
aims at constraining the creation of laws, but if the same institution that enacts laws also
decides on their constitutionality, this institution can do as it pleases.
The situation is different if the formal constitution authorizes an institution other than
the legislature to review the conformity of laws with the formal constitution. For example,
this authority can be granted to all the courts of the legal order.40 In this case, the courts
usually do not have the authority to declare laws void, i.e. invalid once and for all. They only
have the authority not to apply a law which they deem unconstitutional in the case at hand.
39 Kelsen, Reine Rechtslehre, p. 275-277; Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 18611874.
40 Kelsen, Reine Rechtslehre, p. 277-278.

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The law remains valid for all other cases.

It is also possible to confer on a particular court the authority to decide that a law is
invalid in general, for all cases. Such a court a constitutional court has the authority to
review laws for their constitutionality and to strike down unconstitutional legislation. 41 The
most important subject of constitutional review is legislation, but the constitutional court
must also have the authority to invalidate other norms that are not evidently null. For
example, the legislature might take decisions that do not have the form of a statute, but that,
according to the formal constitution, should have this form. If the constitutional court could
not invalidate these decisions, the legislature could easily escape constitutional review.
Kelsen is an ardent defender of constitutional review by a constitutional court. A
constitutional court, in his view, is the best guarantee of constitutional legality and, hence, the
best guardian of the constitution (Hter der Verfassung).42 He defends this view in
particular against the view that constitutional courts are illegitimate because they take highly
political decisions decisions that could only legitimately be taken by the democratic
legislature.
As we have seen, Kelsen rejects a sharp distinction between political and legal
decisions. Both the legislature and the judiciary are bound by higher norms, which they
apply. The difference between these norms is the extent of discretion they allow for.
Political decisions create law by filling out relatively much discretionary space, whereas
legal decisions create law by filling out relatively little discretionary space.
The decisions of a constitutional court are legal decisions, but they are of a particular
kind. The court only scrutinizes whether the enactment of a particular norm remained within
the boundaries of the norms of the formal constitution. If the court decides that it did not, the
court declares the norm invalid. Such a decision does not involve discretionary power, Kelsen
claims. The court does not create new law. It only invalidates law. If the reviewed norm
remained within the boundaries of higher norms, the norm remains valid even if the court
thinks that the norm is not the best application of the higher, authorizing norm.43

41 Kelsen, Reine Rechtslehre, p. 278-280; Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 18361840.
42 See in particular Kelsen, Wer soll der Hter der Verfassung sein?.
43 Kelsens reply to the objection that norms need interpretation, especially when they contain unspecific or
vague terms, is that the constitutional legislature should be clear and specific. Terms like justice should be

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6. Conclusions

In this paper I have reconstructed Kelsens doctrine of legality. Legality is an element of the
rule of law. The rule of law is the ideal that the states power should, as much as possible, be
subjected to legal constraints in order to protect the subjects of the state against arbitrary
exercises of the states power. Kelsen claims that his pure theory of law is the only possible
theory that is fully adequate to the rule of law. My reconstruction was guided by two
questions: 1) what does legality require? and 2) how can this effectively be realized?
The first question concerns the conditions under which the exercise of public
authority meets the standard of legality. The principle of legality demands lawfulness. In the
context of the state, the principle demands lawfulness of acts of state and lawfulness of the
law. The requirement that acts of state must be lawful is the requirement that acts of state
must conform to the law. According to Kelsen, state and law are identical. As a consequence,
the state itself cannot act illegally. Kelsen conceives of the law as a hierarchy of norms.
Norms are objectively valid if they are enacted in accordance with an objectively valid higher
norm. In regard to acts of state, the principle of legality forbids acts that subjectively are acts
of state but objectively are not. An act of state is objectively an act of state if it is authorized
by an objectively valid legal norm. If it is merely a subjective act of state, the act is illegal.
In regard to the law, the principle of legality forbids norms that subjectively are valid
but objectively are not. Such norms are null. The authority to decide on the objective validity
of a norm rests, by default, by the addressees of that norm. For a legal order to become
effective, addressees must transfer this authority, at least partially, to courts. The relevant
norms then become voidable. A voidable norm is a norm that is assumed to be objectively
valid but whose objective validity can be challenged before court. The court can declare the
norm void, i.e. objectively invalid. Representatives of the state should minimize the number
of norms that are declared void.
In positive legal orders, the norms that authorize the creation of general norms are
usually enshrined in a formal constitution. The principle of constitutional legality forbids
norms that violate the formal constitution. The principle is primarily meant to constrain the
enactment of legislation. The legislature state should minimize the number of laws that are
declared unconstitutional.
avoided. Cf. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, p. 1848-1853.

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The second question concerns the actual realization of legality. The principle of
legality needs to be supplemented by guarantees of legality. Tho most important guarantee of
legality, according to Kelsen, involves the transformation of nullity into voidability. By
default, addressees of a norm can invalidate that norm simply by claiming that the norm is
invalid. The norm then becomes null. For the legal order to become effective, the authority to
decide on the objective validity of norms must, at least to some extent, be transfered to
courts. This involves the creation of voidable norms. A voidable norm is objectively valid,
unless a court has declared the norm void. Thus, courts secure the legality of the legal order.
Kelsen applies the same logic to constitutional legality. He claims that the only
effective way to realize constitutional legality consists in the creation of a constitutional court
that can strike down legislation which it considers unconstitutional. The fear that a
constitutional court must take highly polical decisions is ungrounded, he argues, first of all
because the distinction between political and legal decisions is only relative, and secondly
because a constitutional court is only authorized to take negative decisions: it can only void
norms; it cannot create new norms.

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