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Han Kelson - Notes
Constitutional law (111)
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WHAT IS THE PURE THEORY OF LAW? D Kelsenian Legal Positivism decisions and administrative commands. Finally, a norm 19 may have the character of a permission, that is to say, a norm a person may be allowed to do something which without that permission is bidden. For example, a general norm forbids killing, but a special norm, WHAT IS THE PURE restricting the first one, it is permitted as These are the three THEORY OF LAW? functions of a norm: command or permission. If we say that a norm is a rule whose meaning is that something ought to be done, the term covers the meaning of all the three it indicates the normative function. Hans Kelsen The specific meaning of the statement that something ought to be or to be done can be determined only referring to the difference which exists between this statement and the statement that something is or is done. Source: Tulane Law Review 34 (1960): Of this difference we are immediately and directly aware. The logical ism of the and the implies the impossibility of inferring from the statement that something ought to be or to be done, the statement that something is or is done, and vice versa. We are aware of the as of something different from the if The Pure Theory of Law is, as its name indicates, a theory of law. The the former is the meaning of an act of an individual intentionally directed way in which a theory is elaborated is determined its object. In at the behavior of another individual. If, for instance, A commands B to order to apprehend the peculiarity of a theory of law, we must know the do something, we describe the act the statement that A wills that B do nature of its we must, first of all, answer the question as to something. This is an But the meaning of the act can be what is law. described only the statement that B ought to do something, not an Although the theory of as it is usually called, such as that B does or will do what A commands. That B ought is one of the oldest sciences, there is no generally accepted definition of to do something is the subjective meaning of the act of the the concept of law. There are two different views concerning this object. meaning the act has from the point of view of the commanding individual. According to the one, law is a fact, a definite behavior of men, which takes But it is not necessarily also the objective meaning of the act of command, place in time and space and can be perceived our senses. Facts are that is the meaning the act has from the point of view of the addressee the object of the natural sciences: physics, chemistry, biology, psychology, and of a third person not concerned. That B ought to do something is sociology. Hence, according to this view of the law, jurisprudence does not considered to be also the objective meaning of the act of command if this essentially differ from these natural sciences. Just as these sciences, act is authorized. Then, its meaning is called a norm. To the question as prudence describes its object in statements to the effect that something is to the difference between the subjective and objective meaning of acts or is not, that is to say: in According to the other view, law scribing a certain behavior, we shall return later. is not a fact, but a norm. A norm is a rule whose meaning is that something According to the Pure Theory of Law, law is norm, or, more exactly, a set ought to be or to be done, even if actually it is not, or is not done. A norm of norms, a normative order. Since a normative order is the object of has the character of a command or prescription and is usually expressed prudence, and the meaning of norms is that something ought to be done, linguistically in an imperative, as, e., the Ten Commandments God issued that men ought to behave in a certain way, jurisprudence can describe its on Mount Sinai: your father and shall not object not as natural sciences describe their and SO on. A norm may have not only the character of a command but also only in To the question as to what is the law in a certain the character of an a norm a person may confer upon matter, as for example, with respect to theft or murder, the answer is not another person the power or capacity of issuing commands. God authorized that if a man commits theft or murder he is or will be punished, but that he Moses to issue commands to the Jewish God conferred upon him ought to be punished because the law that means: the law is the authority of a legislator. The constitution of a state authorizes a certain when in a concrete case a thief or murderer actually is not individual or a body of individuals to issue punished, because, for example, he has escaped punishment. If in a textbook statutes authorize courts and administrative organs to issue individual of the criminal law of California a statement were made that a man who WHAT IS THE PURE THEORY OF LAW? D Kelsenian Legal Positivism decisions and administrative commands. Finally, a norm 19 may have the character of a permission, that is to say, a norm a person may be allowed to do something which without that permission is bidden. For example, a general norm forbids killing, but a special norm, WHAT IS THE PURE restricting the first one, it is permitted as These are the three THEORY OF LAW? functions of a norm: command or permission. If we say that a norm is a rule whose meaning is that something ought to be done, the term covers the meaning of all the three it indicates the normative function. Hans Kelsen The specific meaning of the statement that something ought to be or to be done can be determined only referring to the difference which exists between this statement and the statement that something is or is done. Source: Tulane Law Review 34 (1960): Of this difference we are immediately and directly aware. The logical ism of the and the implies the impossibility of inferring from the statement that something ought to be or to be done, the statement that something is or is done, and vice versa. We are aware of the as of something different from the if The Pure Theory of Law is, as its name indicates, a theory of law. The the former is the meaning of an act of an individual intentionally directed way in which a theory is elaborated is determined its object. In at the behavior of another individual. If, for instance, A commands B to order to apprehend the peculiarity of a theory of law, we must know the do something, we describe the act the statement that A wills that B do nature of its we must, first of all, answer the question as to something. This is an But the meaning of the act can be what is law. described only the statement that B ought to do something, not an Although the theory of as it is usually called, such as that B does or will do what A commands. That B ought is one of the oldest sciences, there is no generally accepted definition of to do something is the subjective meaning of the act of the the concept of law. There are two different views concerning this object. meaning the act has from the point of view of the commanding individual. According to the one, law is a fact, a definite behavior of men, which takes But it is not necessarily also the objective meaning of the act of command, place in time and space and can be perceived our senses. Facts are that is the meaning the act has from the point of view of the addressee the object of the natural sciences: physics, chemistry, biology, psychology, and of a third person not concerned. That B ought to do something is sociology. Hence, according to this view of the law, jurisprudence does not considered to be also the objective meaning of the act of command if this essentially differ from these natural sciences. Just as these sciences, act is authorized. Then, its meaning is called a norm. To the question as prudence describes its object in statements to the effect that something is to the difference between the subjective and objective meaning of acts or is not, that is to say: in According to the other view, law scribing a certain behavior, we shall return later. is not a fact, but a norm. A norm is a rule whose meaning is that something According to the Pure Theory of Law, law is norm, or, more exactly, a set ought to be or to be done, even if actually it is not, or is not done. A norm of norms, a normative order. Since a normative order is the object of has the character of a command or prescription and is usually expressed prudence, and the meaning of norms is that something ought to be done, linguistically in an imperative, as, e., the Ten Commandments God issued that men ought to behave in a certain way, jurisprudence can describe its on Mount Sinai: your father and shall not object not as natural sciences describe their and SO on. A norm may have not only the character of a command but also only in To the question as to what is the law in a certain the character of an a norm a person may confer upon matter, as for example, with respect to theft or murder, the answer is not another person the power or capacity of issuing commands. God authorized that if a man commits theft or murder he is or will be punished, but that he Moses to issue commands to the Jewish God conferred upon him ought to be punished because the law that means: the law is the authority of a legislator. The constitution of a state authorizes a certain when in a concrete case a thief or murderer actually is not individual or a body of individuals to issue punished, because, for example, he has escaped punishment. If in a textbook statutes authorize courts and administrative organs to issue individual of the criminal law of California a statement were made that a man who LEGAL POSITIVISM WHAT IS THE PURE THEORY OF LAW? commits theft or murder is or will be punished, such a statement would be as that process is determined in the constitution, and with the judicial and false because, unfortunately, there are in California some cases in administrative processes only insofar as they are determined in statutes or murderer is not punished. But the law is that a murderer in rules of customary law. The constitution, the statutes, the customary law all cases ought to be punished. are norms, and only as such the object of jurisprudence. When the legal authority uses in the norm issued it the term That a legal norm, in order to that means: in order to be for example, a thief ought to be punished, a civil execution ought to be be created an act, which is a fact existing in time and space, directed against the property of a debtor who does not repay his is not the only relationship between norm and fact. A norm may or may not term has a prescriptive meaning. As a prescription or command, a norm is be obeyed and applied a certain human behavior which actually takes neither true nor false, but valid or not valid. However, the same term has a place in time and space. A legal order as a whole and the particular legal descriptive meaning when it is used legal science in a statement affirming norms which form this legal order are to be considered valid only if they the validity of a legal norm. Such a statement may be true or false. Only the are, and large, obeyed and applied, only if they are effective. But their legal authority can legal science can only describe what the legal validity must not be confused with their effectiveness. Effectiveness is merely authority prescribes. a condition of, but not identical with, validity. A legal norm may be valid Although the principles of logic, such as the law of contradiction and the before it becomes effective. When a statute is applied a court for the first rules of inference, apply only to statements which can be true or false, they time after its adoption the legislative organ, hence before the statute are indirectly applicable also to legal norms, insofar as statements about could become effective, the court applies a valid it can apply the law norms, statements affirming the existence, that is, the validity, of legal norms only if the law is valid. But the statute loses its validity if it has not become, are subjected to these principles. Two statements of which one affirms the or when it ceases to be, effective. The fact that a legal norm becomes validity of a norm prescribing that men ought to behave in a certain way, ive must be added to the fact that it is created an otherwise it can no and the other the validity of a norm prescribing that men ought not to longer be considered as valid. But just as the act which the norm is behave in this way, contradict each other, just as two statements of which created is not identical with the is the meaning of this the one affirms that something is, and the other that it is not. If the one the effectiveness of a legal norm is not identical with its validity. is true the other must be false. Two conflicting norms can be described as The doctrine which defines law as a fact is based on the erroneous valid norms only statements which contradict each other. In this sense identification of the norm with the act whose meaning the norm is, and of we may say of conflicting norms that they each other. the validity of the norm with its effectiveness. avoiding this erroneous sequently two conflicting norms cannot be considered to be valid at the identification, the Pure Theory of Law separates jurisprudence, describing same time. Thus the science of law conceives of its object as a logical unit: norms in from natural science describing facts in a system of noncontradictory norms. This is the first reason that it is called a theory of Although law is a norm, not a fact, there is nevertheless an essential law. The second reason is that it separates jurisprudence from ethics. The relationship between norm and fact. The norm is as pointed science of ethics describes norms, as does jurisprudence, but the norms ing of a fact, the fact which the norm is established. The fact which a described ethics are not legal norms, but rather moral norms. The norm is established or, metaphorically speaking, created, is the act of an ence between legal and moral norms consists in that the former prescribe a individual or a series of such acts intentionally directed at the behavior of certain behavior attaching to the contrary behavior a coercive act as another. If it is a legislative act or custom, it is a general norm. If it is a a sanction. A sanction is a forcible deprivation of life, freedom, property, judicial or administrative act, it is an individual norm. The or other values, as a reaction against a behavior considered the legal act is a fact which exists in time and space and can be perceived our authority as harmful to society. Law forbids murder, theft and the like senses. This fact can be described in an But this fact is different prescribing that if someone commits murder or theft, he ought to be from its is, the is the object of jurisprudence, punished capital punishment or imprisonment. Law commands payment and which cannot be described in an but only in an of debts prescribing that if a person does not pay his debts, civil statement. It is true that jurisprudence refers also to the procedure which execution ought to be directed against his property. attaching a sanction the legal norms are but only insofar as this procedure is prescribed to a certain behavior, law qualifies this behavior as a delict, as illegal, and or authorized legal norms. The law regulates its own creation. Only the makes the contrary behavior the content of a legal obligation. In this sense, norms that prescribe or authorize the acts are the object of law is a coercive order. Moral norms too, forbid or command a certain jurisprudence. Jurisprudence deals with the legislative process only insofar behavior, and some of them prescribe the same behavior as law, but without LEGAL POSITIVISM WHAT IS THE PURE THEORY OF LAW? commits theft or murder is or will be punished, such a statement would be as that process is determined in the constitution, and with the judicial and false because, unfortunately, there are in California some cases in administrative processes only insofar as they are determined in statutes or murderer is not punished. But the law is that a murderer in rules of customary law. The constitution, the statutes, the customary law all cases ought to be punished. are norms, and only as such the object of jurisprudence. When the legal authority uses in the norm issued it the term That a legal norm, in order to that means: in order to be for example, a thief ought to be punished, a civil execution ought to be be created an act, which is a fact existing in time and space, directed against the property of a debtor who does not repay his is not the only relationship between norm and fact. A norm may or may not term has a prescriptive meaning. As a prescription or command, a norm is be obeyed and applied a certain human behavior which actually takes neither true nor false, but valid or not valid. However, the same term has a place in time and space. A legal order as a whole and the particular legal descriptive meaning when it is used legal science in a statement affirming norms which form this legal order are to be considered valid only if they the validity of a legal norm. Such a statement may be true or false. Only the are, and large, obeyed and applied, only if they are effective. But their legal authority can legal science can only describe what the legal validity must not be confused with their effectiveness. Effectiveness is merely authority prescribes. a condition of, but not identical with, validity. A legal norm may be valid Although the principles of logic, such as the law of contradiction and the before it becomes effective. When a statute is applied a court for the first rules of inference, apply only to statements which can be true or false, they time after its adoption the legislative organ, hence before the statute are indirectly applicable also to legal norms, insofar as statements about could become effective, the court applies a valid it can apply the law norms, statements affirming the existence, that is, the validity, of legal norms only if the law is valid. But the statute loses its validity if it has not become, are subjected to these principles. Two statements of which one affirms the or when it ceases to be, effective. The fact that a legal norm becomes validity of a norm prescribing that men ought to behave in a certain way, ive must be added to the fact that it is created an otherwise it can no and the other the validity of a norm prescribing that men ought not to longer be considered as valid. But just as the act which the norm is behave in this way, contradict each other, just as two statements of which created is not identical with the is the meaning of this the one affirms that something is, and the other that it is not. If the one the effectiveness of a legal norm is not identical with its validity. is true the other must be false. Two conflicting norms can be described as The doctrine which defines law as a fact is based on the erroneous valid norms only statements which contradict each other. In this sense identification of the norm with the act whose meaning the norm is, and of we may say of conflicting norms that they each other. the validity of the norm with its effectiveness. avoiding this erroneous sequently two conflicting norms cannot be considered to be valid at the identification, the Pure Theory of Law separates jurisprudence, describing same time. Thus the science of law conceives of its object as a logical unit: norms in from natural science describing facts in a system of noncontradictory norms. This is the first reason that it is called a theory of Although law is a norm, not a fact, there is nevertheless an essential law. The second reason is that it separates jurisprudence from ethics. The relationship between norm and fact. The norm is as pointed science of ethics describes norms, as does jurisprudence, but the norms ing of a fact, the fact which the norm is established. The fact which a described ethics are not legal norms, but rather moral norms. The norm is established or, metaphorically speaking, created, is the act of an ence between legal and moral norms consists in that the former prescribe a individual or a series of such acts intentionally directed at the behavior of certain behavior attaching to the contrary behavior a coercive act as another. If it is a legislative act or custom, it is a general norm. If it is a a sanction. A sanction is a forcible deprivation of life, freedom, property, judicial or administrative act, it is an individual norm. The or other values, as a reaction against a behavior considered the legal act is a fact which exists in time and space and can be perceived our authority as harmful to society. Law forbids murder, theft and the like senses. This fact can be described in an But this fact is different prescribing that if someone commits murder or theft, he ought to be from its is, the is the object of jurisprudence, punished capital punishment or imprisonment. Law commands payment and which cannot be described in an but only in an of debts prescribing that if a person does not pay his debts, civil statement. It is true that jurisprudence refers also to the procedure which execution ought to be directed against his property. attaching a sanction the legal norms are but only insofar as this procedure is prescribed to a certain behavior, law qualifies this behavior as a delict, as illegal, and or authorized legal norms. The law regulates its own creation. Only the makes the contrary behavior the content of a legal obligation. In this sense, norms that prescribe or authorize the acts are the object of law is a coercive order. Moral norms too, forbid or command a certain jurisprudence. Jurisprudence deals with the legislative process only insofar behavior, and some of them prescribe the same behavior as law, but without LEGAL POSITIVISM WHAT IS THE PURE THEORY OF LAW? to be understood as the following question: What is the logical condition This presupposition is possible but not necessary. If the basic norm is not under which the subjective meaning of the men ought presupposed, a coercive order established acts of human beings and to behave in a certain be interpreted as their objective meaning? and large effective cannot be interpreted as a system of valid norms, but In answering this question we must be aware that it is logically impossible to only as an aggregate of and the relations constituted such an infer from the statement that something is or is done, the statement that order cannot be interpreted as legal relations, that is, as obligations, rights, something ought to be or to be done, just as it is logically impossible to infer competences and the like, but only as power relations. Thus the Pure Theory from the statement that something ought to be or to be done, the statement of Law, ascertaining the basic norm as the logical condition under which that something is or is done. This logical principle applies also to the fact of a coercive order may be interpreted as valid positive law, furnishes only a an act of will whose subjective meaning is that something ought to be done. conditional, not a categorical, foundation of the validity of positive law. From the fact that an individual commands that another individual ought to Since the basic norm refers to a definite coercive order established definite behave in a certain way, it does not follow that the other individual ought acts of human beings and and large effective at a definite time and within to behave in this way. It does not follow from the subjective meaning of the a definite space, there is no choice between different basic norms. Only a act of command that the meaning of the act is an objectively valid norm, basic norm referring to such a coercive order can be presupposed. disobedience to which would constitute something wrong. If a gangster According to the Pure Theory of Law the basic norm may be mands that another person pay him a certain sum of money, we do not posed with reference to every coercive order established acts of human assume that this individual ought to obey the command and that, if he does beings and and large effective, whatever its content may be, that is to not obey, he commits something wrong. A norm cannot be deduced from a say, without regard to its justice or injustice. This theory does not aim at a it can be deduced only from a norm. Hence the reason for the validity moral or political justification of positive law. As a science of positive law, of a judicial decision or an administrative command is not the fact that a it refuses on principle to evaluate its object as just or it is unable judge has actually rendered the decision, or an administrative organ has to furnish a firm, an absolute, standard for evaluation. Those who expect actually issued the command, but the statute authorizing the judge to render such standard from jurisprudence may consider a positivistic theory of law decisions and the administrative organ to issue commands. The reason for in general and the Pure Theory of Law in particular as unsatisfactory. the validity of statutes is the constitution, authorizing an individual or a But their expectation can be fulfilled only theological speculation: body of individuals to issue statutes. If it is historically a first constitution, metaphysics, not science of law. and if the reason for the validity of this constitution the point of view of a positivistic theory of considered to be a superior order created a divine, superhuman will, authorizing a certain individual or a body of individuals to establish the constitution, the reason for the validity of the constitution and hence of the statutes, judicial decisions, and istrative commands established on the basis of the constitution can only be a norm we presuppose, if we are to interpret the acts whose subjective meaning the constitution, the statutes, the judicial decisions, the istrative commands are, as objectively valid norms. A norm is presupposed according to which men ought to behave in conformity with the stitution, hence in conformity with the general norms issued on the basis of the constitution legislation or custom and, finally, in conformity with the individual norms issued on the basis of statutes or customary law judicial and administrative that is to say, in conformity with the legal order in its hierarchical structure, This norm, which is not a positive a norm created an act of human or superhuman will, but only presupposed in juristic the reason for the validity of a positive legal order. It is called the basic norm. Its presupposition is the condition under which every coercive order established acts of human beings and and large effective, may be interpreted as a system of objectively valid norms. LEGAL POSITIVISM WHAT IS THE PURE THEORY OF LAW? to be understood as the following question: What is the logical condition This presupposition is possible but not necessary. If the basic norm is not under which the subjective meaning of the men ought presupposed, a coercive order established acts of human beings and to behave in a certain be interpreted as their objective meaning? and large effective cannot be interpreted as a system of valid norms, but In answering this question we must be aware that it is logically impossible to only as an aggregate of and the relations constituted such an infer from the statement that something is or is done, the statement that order cannot be interpreted as legal relations, that is, as obligations, rights, something ought to be or to be done, just as it is logically impossible to infer competences and the like, but only as power relations. Thus the Pure Theory from the statement that something ought to be or to be done, the statement of Law, ascertaining the basic norm as the logical condition under which that something is or is done. This logical principle applies also to the fact of a coercive order may be interpreted as valid positive law, furnishes only a an act of will whose subjective meaning is that something ought to be done. conditional, not a categorical, foundation of the validity of positive law. From the fact that an individual commands that another individual ought to Since the basic norm refers to a definite coercive order established definite behave in a certain way, it does not follow that the other individual ought acts of human beings and and large effective at a definite time and within to behave in this way. It does not follow from the subjective meaning of the a definite space, there is no choice between different basic norms. Only a act of command that the meaning of the act is an objectively valid norm, basic norm referring to such a coercive order can be presupposed. disobedience to which would constitute something wrong. If a gangster According to the Pure Theory of Law the basic norm may be mands that another person pay him a certain sum of money, we do not posed with reference to every coercive order established acts of human assume that this individual ought to obey the command and that, if he does beings and and large effective, whatever its content may be, that is to not obey, he commits something wrong. A norm cannot be deduced from a say, without regard to its justice or injustice. This theory does not aim at a it can be deduced only from a norm. Hence the reason for the validity moral or political justification of positive law. As a science of positive law, of a judicial decision or an administrative command is not the fact that a it refuses on principle to evaluate its object as just or it is unable judge has actually rendered the decision, or an administrative organ has to furnish a firm, an absolute, standard for evaluation. Those who expect actually issued the command, but the statute authorizing the judge to render such standard from jurisprudence may consider a positivistic theory of law decisions and the administrative organ to issue commands. The reason for in general and the Pure Theory of Law in particular as unsatisfactory. the validity of statutes is the constitution, authorizing an individual or a But their expectation can be fulfilled only theological speculation: body of individuals to issue statutes. If it is historically a first constitution, metaphysics, not science of law. and if the reason for the validity of this constitution the point of view of a positivistic theory of considered to be a superior order created a divine, superhuman will, authorizing a certain individual or a body of individuals to establish the constitution, the reason for the validity of the constitution and hence of the statutes, judicial decisions, and istrative commands established on the basis of the constitution can only be a norm we presuppose, if we are to interpret the acts whose subjective meaning the constitution, the statutes, the judicial decisions, the istrative commands are, as objectively valid norms. A norm is presupposed according to which men ought to behave in conformity with the stitution, hence in conformity with the general norms issued on the basis of the constitution legislation or custom and, finally, in conformity with the individual norms issued on the basis of statutes or customary law judicial and administrative that is to say, in conformity with the legal order in its hierarchical structure, This norm, which is not a positive a norm created an act of human or superhuman will, but only presupposed in juristic the reason for the validity of a positive legal order. It is called the basic norm. Its presupposition is the condition under which every coercive order established acts of human beings and and large effective, may be interpreted as a system of objectively valid norms.
Han Kelson - Notes
Course: Constitutional law (111)
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- THE CONCEPT OF HUMAN RIGHTS SERVES AS A FUNDAMENTAL FRAME WORK FOR ENSURING JUSTICE.
- Francis Bennion Constitutional Evolution
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- Kuenyehia AND Others v Archer AND Others
- Kumado on Judicial Review