STEWART Critical Legal Science of Kelsen

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Cardiff University

The Critical Legal Science of Hans KelsenAuthor(s): Iain StewartSource: Journal of Law and Society, Vol. 17, No. 3 (Autumn, 1990), pp. 273-308Published by: Wileyon behalf of Cardiff University

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JOURNALOF LAW AND SOCIETYVOLUME17,NUMBER3, AUTUMN 19900263-323X$3.00

TheCriticalLegalScienceof HansKelsenIAINSTEWART*

Fearing heoutcome f thesecretpolicefoundit in hishouse,thesacked awprofessorwrapped is old service evolvernabanana kinandploppedtintothe Rhine. He escapedwithhis familyto Prague,where,at his firstlecture,fascistspacked the hall and shouted:'Everybodyexcept Jews and com-munists,out 'Thosestudentswhoremainedwerebeatenup.Hecontinued oteach, underpolice protection.Plans of a plot to assassinatehim werediscoveredby a university leaner.He broughthis familyout, to the UnitedStatesof America,wherehe wasallowedachairof political ciencebutnotoflaw.1Hans Kelsen,advisor to the Austro-Hungarian mperor,authorof theAustrianConstitution, ndhavingexperiencedmanykindsof academicandpolitical victimization- of all major legal theorists the most bitterlyacquaintedwith political realities - is an implausibleperpetratorof'formalism'.2Yet his main creation, the 'pure theory of law', is bothrecognizedworld-wide s a major heoryof law3andplaced n the 'bornsobeautiful'basket as the paradigmcase of formalisticirrelevance.4AsGurvitch ormulateshecharge:According to this doctrine, law, being nothing but a pure norm, admits only a normativeand formalistic method of study, everyothermethod beingdestructive of the very object ofresearch. That is why sociology cannot study law and the 'science of law' cannot takeaccount of social reality.5

Evenfor so analyticala mind as Hart, the puretheorypays far too littleattention o thecircumstances nderwhich awsarecreatedand whetherheyarerecognised s authoritative ndby whom'.6Yet, to Kelsen,of all chargeslevelledagainstthe pure theory,that offormalismwasthe'stupidest'.7 willargue hat,whenKelsen'sphilosophicalstandpointsunderstood,hequestionof formalismmerges nseveralevels.First, in relationto its subjectmatter the theoryis intendedto be anti-*Senior Lecturer and Head, School of Law, Macquarie University, Sydney2109, AustraliaThis paper is the fourth in a series dealing with the work of theorists who have substantiallyinfluencedcontemporary understandingof law and society. The series will be of interest to bothstudents and specialists.

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formalistic. Second, within the chosen kind of philosophical framework ageneral theory is necessarily formalistic. Third, arguably the philosophicalframeworkitself is formalisticandcommunicates this formalismto the theory.While recent interest in the pure theory is found mainly among analyticalphilosophers,"as an attempt to bring the study of law to the level of a criticallegal science- a project,moreover, that fell apart in Kelsen's own hands - thepuretheory's aims and fate arevery relevant to attempts to construct a criticallegal science today.Yet there is no survey of Kelsen's work as a whole, in any language.9 Thetask of survey is daunting. Kelsen wrote over 300 books and articles, in threelanguages.'0 Most that are not in English have not been translated and theexisting translations vary in reliability (although their formulaic style is notdue to the translators)."IWritingsabout Kelsen's work form an equally longlist and are in several languages.'2 Attention here will focus on Kelsen'swritings on legal theory, leaving aside his many works on justice, publicinternational law,'3 or Austrian law. Nor will the work of other membersofthe 'Vienna School' be considered on its own account.'4No single work of Kelsen's contains a final overall statement of the puretheory. The last overall statement is the second edition, published in 1960, ofReine Rechtslehre,translated as Pure Theory of Law. By 1962, however, thetheory's keystone, the concept of a 'basic norm', had fallen apart in Kelsen'shands. Rather than restate the theory accordingly,he tried to save the conceptin weakened form. Then he moved up a level, to general theory of norms. Hedied in Berkeley, California, on 19 April 1973, leaving a rambling textpublished posthumously as AllgemeineTheorieder Normen(GeneralTheoryofNorms). Although this book reformulates many of the arguments of ReineRechtslehre,embracingthe new version of the 'basic norm' concept, it neitheroffers a completed general theory of norms nor locates the pure theory of lawwithin such a theory. Nevertheless, it comes close enough to doing thesethingsfor an article such as this to outline Kelsen's theoretical work according tosuch a pattern. In doing so, I will avoid questions of the development of thepure theory except so far as they impinge on understandingits final form.

KELSEN'S BACKGROUNDHans Kelsen was born in Pragueon 11October 1881and was raisedin Vienna.His parents were Jews of the German-speaking working class. The boydreamed of taking a degree in philosophy, mathematics, and physics. Thecombination of his social backgroundwith such a degree,however,pointed toa career in schoolteaching and, without enthusiasm, he enrolled at theUniversity of Vienna in law. That he could not become a philosopher, heregrettedfor the rest of his life. After obtaining his doctorate, Kelsen becameinterested in the nature of legal norms and wrote a higher doctorate on thisand other majorissues in legal theory,'5 then began to teach at the university.Cosmopolitan, bureaucratic and rich as its cream cakes, dual-imperial

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Viennabestrode entralEuropewitha webof laws that a medleyof classandethnic conflictswithinand the GreatWar withoutwould shred.Politicalthoughtrangthechanges romfeudalism hroughconstitutionalmonarchyand liberalism o socialism; ascism would follow. In religion,catholicismdominatedprotestantismnd udaism.Thisunstable ocialvarietypressuredliberalhigh culture towardrelativism: nto neo-Kantianism,ogical pos-itivism,empiriocriticism, hysicalrelativitytheory, psychoanalysis, onalmusic,and satire.Relativism ncouraged bstraction:o copewiththevariety, heoryneededto risebeyond t.At thesametime,therelativitywasfar fromstatic: hedeephistoricalconsciousnesshat throughthe nineteenth enturyhad expressedGermanplans for unity bled over into disintegratingAustria-Hungary.HavingfoundHegelboth too feudaland too vulnerableo Marx's nversion,German-speakingiberalswent back to Kant. Yet the returncould not besimple.Kant's enseofhistoricity, sHegelhadpointedout,wastoo weakforanageneedingounderstand eep ransformationsf socialstructures.A firstproblem,hen,wastherelationbetweenhistoricity nd science'Wissenschaft- the Germanwordrefers o anykind of systematic nquiry).Linkedwiththis wasa furtherproblem, oncerningis' and'ought'.Kantmaintainedhe distinctionbetween heoretical eason,whichstateswhatis,andpracticalreason,whichstateswhatoughtto be. Feudal and especiallycatholic idealism had preachedtheir unity, so that whateverexists ispresumablygood. A key principleof the Enlightenment, rom Hume'sScotlandinto the German-speakingands, was to divide them, so thatstatements fwhat sandofwhatoughtto bearedifferent indsof statement,and accordinglyneither can follow from the other. A strong sense ofhistoricity, n theotherhand,includesa stresson practice,henceon the co-existenceof factandvalue,factandmeaning whichis nextto reassertingtheirunity.The problem of reconcilinghistoricismwith the is/ought dichotomyproduceda powerfuldebate on the identitiesof the sciences.The neo-Kantians,as they came to be called,distinguishedbetween two kinds ofscience: he natural ciences Naturwissenschaften)nd the sciencesof mind(Geisteswissenschaften)or culture (Kulturwissenschaften).In terms of therelationbetweenreasonand history,the formerwere to be concernedwithmaterial acts, thelatterwithmeanings;or the formerwith regularities,helatterwith ndividualvents. ntermsof separatingis'and ought', heformerwereto beconcernedwithmaterial acts,thelatterwithvalues.Each way of makingthe distinctionalso had two versions:whether hedifferenceayin theperspectiveshroughwhich hesciencesapproachedheirsubjectmatter or in the subjectmatteritself. Kelsentook the latterview,holdingthat law is evidentlyone of the 'socialorders' that is, systemsof'oughts' andthatthereforetsstudycannotbea natural cience.16 t mightthen be a science of mind or culture. But, in that case, if the aim is to describethe 'oughts' of law, can therebe such an 'is' of'oughts' without infringingtherule against mixing 'is' statements and 'ought' statements?

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This problem was either abolished or made worse by logical positivism,which denied the very existence of practical reason. It held that only factualstatements could be rational; value statements weremerely emotive. This leftno room for a scienceof'oughts', henceapparentlyfor a scienceof law. Or,if ascienceof law was possible in these terms,could it be fully compatible with theother sciences within the logical-positivist doctrine of 'unifiedscience'?Such debates challenged the discipline of law to reforge its identity as ascience. Kelsen was outstanding among those who took on the challenge.

KANT AND THE PURITY OF 'IS' FROM 'OUGHT'In constructinghis legal theory and even when attempting a general theory ofnorms, Kelsen is concerned less to philosophize than to clothe his theory inelements of philosophy bought off the peg. Such an attitude is neither wrongnor even inferior; enquiry has to stop somewhere in the refinement ofpremisses as well as in the search for evidence, if it is to bring the two intorelation.17All the same, the crypticnature of many of Kelsen's indications ofhis philosophical debts makes it hard to ascertain whether the clothes hebought fit well or even match.A starting point is that Kelsen many times classifies himself as an heir ofKant. The firstedition, published in 1934, of ReineRechtslehrebegins:

It is more than two decades since I undertook the development of a puretheory of law, thatis, a theory of law purifiedof all political ideology and all natural-scientificelements andconscious of its particularcharacterbecauseconscious of the particularlaws governing itsobject. Right from the start, therefore,my aim was to raisejurisprudence,which openly orcovertly was almost completely wrapped up in legal-political argumentation[Raisonnement], to the level of a genuine science, a science of mind [Geistes-Wissenschaft].'8

In the passage out of 'naive, prescientificthinking',19Kelsen finds Kant onlyhalf-heartedlycritical20 and tests the capacity of a range of neo-Kantian andrelated philosophical tendencies- principally the ideas of Rickert, HermannCohen, and Husserl.21Yet he declines to get closely involved in thesedebates,preferringto count it undeniable that the reality of law is not simply naturalbut also involves meanings, all or most of which areoughts, and then to go hisown way.22The areain which he draws the borderis indicatedby his view thatthe idea of legal science as a science of mind does not suppose complete freewill, since the idea of responsibilitypresupposescausal constraint.23Nonetheless, Kelsen appears to adopt two key Kantian conceptions:'critique'and 'purity'.Kant's main books offer 'critiques',as he terms them, of modes of thought.He understands'critique'not as a merely negative exercise but as a process inwhich a mode of thought is to be made as coherentas possible. The focus is onthe mode of thought as such. Thereis no appeal below thought to experience,nor above thought to religion. Critique is reflection on the very forms of amode of thought, with the aim of maximizing the mode's capacities. Kelsen276



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embarkson a critique,n thissense,of existing egal theory, aterof existinggeneral heoryof norms.Kant's deaof purity ollows from hisfirmadherence o thelogical awofidentity, hateachthing s whatit is and notsomething lse.Anystatement fsomething,herefore,muststate t as what t is andwithoutadmixture. uchastatementwill be 'pure'.Kelsen s concernedwith suchpurity n two majordirections:he first spurityof descriptiontherealmof 'is')fromprescription(therealmof 'ought').FollowingHume,24then Kant, but with still greateremphasis,Kelseninsists hatstatements fwhat s andofwhatoughtto bemustnotbemixed.25For Kelsen,the differencebetween 'is' and 'ought'is simplyobvious andcannotbeexplained.Oneand the sameentitymaybe considered ow intermsof'is', that t existsordoes notexist,andnow intermsof 'ought', hat toughtoroughtnottobe;butthetwo'modes'mustnotbe mixed ogether.Theentitythat may be considered n terms of eithermode is a 'modally ndifferentsubstratum' nderlyinghe two modes.To saythat an 'is'correspondso an'ought' forexample, hat a person'sbehaviour onforms o a normis tostatea correspondenceot between he behaviourand the 'ought'formbutbetweenthe behaviouras content of an 'is' and as content of an 'ought'.Neithermode, however,has any necessarycontent: for example,a legal'ought'does not necessarilyontainanymoral ought'.26

Oneof thegroundson whichKelsen akes hisstrongview sthathemakesamajordepartureromKant,in thedirectionof logicalpositivism.Kantgivesreason two roles: theoreticalreason concernsdescription('is') and is afunction of thought,whilepracticalreasonconcernsprescription 'ought')andis a functionof will. Kelsen,however,denies the existenceof practicalreason.27Thoughtand willare'twoquitedifferentmentalfunctions'.Thereare'actsof thought',whosemeaning s a descriptivetatement,and 'acts ofwill', whosemeaning s an ought.Althoughthe two kinds of meaningareboundupwitheachother, n thata statements usuallymadewitha purposeand an oughtcontainsa conceptualizationf thebehaviour o which t mayapply.28The meaningsmay be expressedn variousways- as writtenor spokenwords,or as a gesture for example,handsraised n voting,a policeofficerdirecting raffic)or othernon-verbalkindof symbol (for example,a trafficlight);or evenas being tacitlypresupposed',uchas thenormof derogationthat a laternormderogates rom an earlier.29Kelsen'smeaningof 'ought' sbroad:hespecifieshat t shall ncludenotonlycommands rorders,but alsoauthorization,permission,and derogation.30Consideredgrammatically,wordsexpressingan ought will often be in the imperativemood. But noparticularverbalformula s necessaryand sometimes he verbalform canmislead: specially,an oughtmaybe expressedn theindicativemood- forexample,Theftwillbepunishedwith mprisonment.'31etthe factthat s theact of thought or will is not the same as the fact that is the mode of expression:for example, an act of will, whose meaning is an ought, is not the same as aspeech act expressingthat meaning.32277



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All the same,the differencebetween is' and 'ought'is not betweentwomodes of reason but between reason itself (corresponding o Kant'stheoretical eason,or theoretical spectof reason)and emotion.Thisstrongversion of the 'is/ought'divisionparticularly ffectswhat is admissibleas'science Wissenschaft)'.f science s alreadydefinedas a rationalenterprise,questions fwhat s,beingrational, anbe discussednsciencewhilequestionsof what ought to be, since they are irrational,cannot. Indeed, to allowdiscussionof 'ought' to affect discussionof 'is' would be not sciencebut'ideology'.Sciencemustbekeptpureof ideology.33A firsttask is to fence legal scienceagainstother sciencesdealingwithconnectedsubjectmatters- psychology,sociology, ethics, and politicaltheory.Thepuretheoryof lawundertakesto delimit the cognition of law against these disciplines, not because it ignoresor denies the connection, but because it wishes to avoid the uncritical mixture ofmethodologically different disciplines (methodological syncretism) which obscures theessence of the science of law and obliterates the limits imposed upon it by the nature of itssubjectmatter.34

SCIENCEOF OUGHTAt thispoint t will behelpful o makeexplicita concept hatin Kelsen sonlyimplicit:heconceptof a scienceof ought.Thismakes tpossible o identifynKelsen'sperspective he followinghierarchyof sciences.First, scienceingeneraldivides ntosciencesof natureand sciencesof mind.Second,sciencesof mind - the neo-Kantianconcept being modified to accommodate helogical-positivistenial hatthepractical an berational divide ntosciencesof is andsciences fought.Third, inceonlysomeoughtsarevalid seebelow),hencearenorms, ciences f oughtdivide nto sciencesofnorms,whichKelsencalls normativeciences', ndsciencesof otherkindsofought.The normativesciences re pure'n the sense hattheydescribe ughtswithout ubscribingoor evaluatinghem.Fourth,normative ciencesdivide nto legalscience, hestudyof legalnorms,and ethics,the studyof moral norms.Thusthe puretheoryof law is normative cienceof law.35Kelsen'sgreatestdifficultys:how,in theseterms,can therebe a science arationaldescription) f 'oughts'?A strongversionof the is/oughtdivisionimplies hat therecannot: hateither asStammler adconcluded) cienceofought must be confinedto practicalreason,as systematicevaluationofoughts,36 r(asinlogicalpositivism),f reason sonlycognitive,anyscienceofmind that can describeacts of will but not theirmeanings,can only bepsychology.37YetKelsen s unwillingo go all thewaywith ogicalpositivismand reduceoughtto is.38Forhim,oughtsmaybe irrationalbuttheyarenotillusory. n neo-Kantianism e foundanotherresource.In Kant's view, we know things not as they may be 'in themselves',independentlyof knowledge, but only as they appear to us. (The question ofhow we can then be sure thereis any realityat all 'out there', independentlyof

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our knowledge, plagued the neo-Kantians.) The appearanceof things to us isas material provided by the senses that is moulded under forms of thought:material as so moulded is a 'concept'. Most of the forms (moulds) areconstructedby us. But the most universalforms, which Kant calls 'categories',are innate.One of Kant's 'categories'is that of'is (Sein)', under which descriptionsareconstructed. How is it possible to state the is of an ought? Now, Kant haddeclared that his list of 'categories' was not closed. Very well, said the neo-Kantian sociologist Simmel, in working out how there could be descriptionofsocial values: let us add a new category, 'ought (Sollen)', under which it will bepossible to describeoughts.39 Kelsen adopts Simmel's new category.40Since, in Kant, the operation of a category is mediated through a 'schema(Schema)', Kelsen has the category of ought operate partly through the'schema' of 'norm'.41The new category and schemapermita kindof scienceinwhich norms may be described without any admixture of evaluation. Kelsencalls this 'normativescience'.42Sociology, as well as psychology, ethnology,43and history, are to concern themselveswith understandingbehaviourin termsof causality, including motivation. Where behaviour is related to meaningsthat arenorms, those meaningsareto be understood by the normativesciencesof law and ethics.44The word 'norm' (from Latin,norma)often means descriptive regularity,aswhen one says that a type of behaviour 'is the norm' (compare 'is normal').Kelsen does not use this sense. A second sense is prescriptive:when one speaksof 'social norms', one means by a 'norm' any kind of prescription. For thisconcept, Kelsen prefersto speak of an 'ought'.Kelsen then speaks of both 'ought' and 'norm' in two senses: as subjectmatter of science and as descriptiveconstruct in science. In the first sense, herefers simply to an ought or a norm. In the second sense, he speaks of a'proposition (Satz)'. Thus an 'ought (Sollen)' is described in an 'oughtproposition (Sollsatz)', a 'legal norm (Rechtsnorm)'in a 'legal proposition(Rechtssatz)'and a 'moral norm (Moralnorm)' n an 'ethicalproposition (SatzderEthik)'.45This is Kelsen's formal terminology, but, since in Kantian termsa subjectmatteris known only as it appears,he usually speaks of an 'ought' ora 'norm'when he means the ought or norm as it appearsin a proposition. Thisdouble usage is confusing, but Kelsen defends it as a widely establishedpractice:'logic (Logik)', for example, is both the operation of a kind of normand the study of their operation46(compare, in English, 'law').With the word 'normative', however, Kelsen is more selective. While itsusual meaning is prescriptive,corresponding to his sense of 'norm' as subjectmatter,he uses it in a sensecorrespondingto his sense of 'norm'as description.Normative science, under the category of ought, constructs norms in thesecond sense as descriptions of norms in the first sense.47Next, Kelsen stresses that, since natural science describes facts whilenormative science describes norms, the two forms of science must operateaccording to differentprinciples. Natural science operates according to theprinciple of causality. By analogy, Kelsen maintains, normative science can

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operate according to a principle of 'imputation (Zurechnung)'.A cause isconditionally related to an effect as its consequence - if A (cause) is, then B(effect)will be; B is caused by A. Thus: if (A) a brick hits Jane's head, then (B)Jane will be injured. Likewise, a delict48 can be conditionally related to asanction as its consequence- if A (delict) is, then B (sanction) ought to be; B is'imputed' to A. Thus: if (A) John threw the brick, then (B) John ought to beimprisoned. To speak of 'imputation' here is similar to speaking ofresponsibility- here, that John is responsible for the damage to Jane.49The legal scientist makes the imputation, just as the natural scientistunderstands a physical connection as causal. Imputation means 'everyconnection of a human behaviour with the condition under which it iscommanded or prohibited in a norm'.50 In the case of morality, however,imputation is a two-stage affair:while a legal norm is attached directly to anegative, coercive sanction (such as imprisonment),a moral norm is attacheddirectly to a positive, noncoercive sanction (such as the expression ofapproval) and indirectly to the negative form of that sanction (such as theexpression of disapproval); imputation, concerning a moral norm, has toreach to the negative form.Pursuing the analogy, Kelsen holds that, as in natural science causalrelations may be stated in a 'law of nature (Naturgesetz)', so in normativescience relations of imputation may be stated in a 'law of law (Rechtsgesetz)'or 'law of morality (Moralgesetz)'; the legal or moral form, like the natural,being formulated probabilistically.5' However, the analogy is only partial:while the law of nature refers to unending chains of causation, the law of lawor of moralityrefers to isolated relations.52The law of law or of morality is theform taken by the legal or moral proposition.53The distinction between causal sciences, grounded in the principle ofcausality, and normative sciences, grounded in the principle of imputation,cuts across the other distinctions between sciences. Accordingly, Kelsen candivide the social sciences into causal social sciences, such as sociology, and thenormative social sciences,such as legal science and ethics.54In relationto law,if social sciences follow the principle of causality alone, they will fail to takeaccount of norms;if they also follow the principleof imputation, they will tothat extent be legal science or ethics.55Other norms and their study belong to logic and technology (Technik).Since 'ought' is not a relation, a norm is not a relation between a means and anend. A relationbetween a means and an end is causal. An act of will, which is apsychological fact, may be a means, but the meaning of that act, which is an'ought' or norm, cannot be a means or an end. The question 'What ought I todo?'belongs to legal science or ethics;the question 'Whatmust I do, to realizea particularend?'belongs to technology.56Now, it is farfromclearin what sensethe 'proposition' is descriptive.For, inaddition to sayingthat the differencebetween norm and proposition is that thelatterdescribes the former,Kelsen gives as examples the difference 'between alaw published in the official legal gazette and a scientificcommentary on thatlaw' or 'between the Criminal Code and a textbook on criminal law'.57 The

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examples tatea differencewithoutreallydefiningt. Kelsenalsosaysthatthedescriptionmight be called 'interpretation', ut maintains hat this 'non-authentic',merelydescriptive nterpretationby the legal scientistis quitedifferent in principle from the legal organ's 'authentic', law-creatinginterpretation.58f thepropositions formulated s a 'law',then:It is the taskofthescienceof lawto representhe awofacommunity,hat s, thematerialproduced ythe egalauthorityn the aw-making rocedure,n the formof statementsotheeffect hat ifsuchandsuchconditions refulfilled,hensuchandsucha sanction hallfollow'.59Thespiritappears o be thatlegalscience,constructingegalpropositionsnotlegalnorms, hastoknowthe aw- as itwere rom heoutside andto describeit'.60 Legalscience endeavours o comprehendts object "legally",namelyfrom hestandpoint f the law'- that s,as a legalnormorascontentofa legalnorm.61'Imputation's equallyambiguous.Up to the 1930s,Kelsenunderstandstas a categoryin the Kantiansense, on analogywith Kant's categoryofcausality.UnderKantiancategories, eality s constructed:hecategories renot generalizations rom experience.In Hume, however, causality is ageneralization rom experience.And Kelsen moves toward a Humeanunderstandingf causality,at the same time as denyingthat knowledgeofoughts s experiential:heanalogue oses itsparent.62

It appears hat,in Kelsen'sconceptionof science,more thanone ideaofdescriptions involved.At leastthree deas of descriptionwereavailable ohim: they may be distinguished,f rathermetaphorically, s 'refractive','reflective',and 'interpretive'. n objective-idealistphilosophy, such asChristianity,t is believed hatthebasisof reality s idealformsexistingpriorto knowledge.Theparticularntities n the worldareonlyrefractions f theidealforms forexample,a particularmanexistsonlyas a refraction f theidealman.Todescribe particularntity storeproduceherefraction, s,forexample,a biblical cholarmayrefractameaningn theBible.Themethod sexegesis. n materialist hilosophy, hebasisof reality s physical hings.Todescribe hemis to have a reflectionof themin the mind.The method isobservation.n bothrefractive ndreflective escription,heconstruction freality s supposedlydetermined ythe formof theoriginal.Onecanobserveboth nanimate nd animateobjects, uchashumanbeingsin their behaviour.But a science of mind is not concernedsolely withbehaviour,understood ausally.Theneo-Kantian ociologyof MaxWeber,for example,insists that one must first observe the behaviourand thenunderstand t according o the meanings hat the actorsattachto it, whichWebertermsthe 'subjectivemeaning'of the behaviour distinctfromthe'objective'meaningconstructed n science.63The method is interpretiveunderstanding. hisdiffers romexegesis n that,although n bothcases thesubjectmatter s meanings,n interpretivenderstandingheactor's rameofreferenceneed not be adoptedby the observer,who may reconstruct heactor's meanings in any of a theoretically infinite number of alternativeframes.

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Now, if the differencebetweennormand proposition is only that the norm iscreated by legal authority while the proposition is not, the propositionreproducing the norm will remain within the legal authority's frame ofreference; hedescriptionwill be refractive.If, however, the differencebetweennorm and law (law of law or of morality) involves reconstruction of the normin another frameof reference,the descriptionwill be interpretive.Yet we shallsee in a while that Kelsen's way of combining the two modes of description iscurious.64

A 'PURE PART' OF LEGAL SCIENCEThe second type of puritywith which Kelsen is concerned is purityof the formof knowledge from empiricalcontent.Since, for Kant, the 'categories'and not any supposedly given 'facts' are thefoundations of thought, any mode of enquirycan be systematic - that is, canbe a science - only if its systematic character is established in advance ofempirical investigation. It is therefore necessary, in beginning to construct aparticularscience, to establish a set of basic forms that the science will apply.This set Kant calls the 'metaphysical bases' of the science.65 Theirformulation,he calls (speakingof naturalscience)the 'pure part'of the science- 'pure' in the sense that it does not yet have any sensuous admixture, anyempiricalcontent. This should be stated separatelyfrom the later, 'empirical'part of the science, in which the forms establishedin the pure part are appliedto empirical material so as to compose concepts.66 Thus, the purpose ofconstructing a pure part of a science, far from being to evade empiricalconsiderations, is precisely to make empiricalenquirypossible.67Kelsen states that the pure theory provides 'the fundamentalprinciplesbymeans of which any legal order can be comprehended'68 and that it is a'generaljurisprudence' furnishing 'the basic conceptions that enable us tomaster any law' and accordingly serving as 'the theoretical basis for all otherbranchesofjurisprudence'such as 'dogmatic' (that is, doctrinalist),historical,or comparativejurisprudence,69and even sociology of law.70 The theory:

has - and by its very naturemust have - aformalistic character. This does not mean - as itis sometimes misunderstood - that the Pure Theory of Law considers the contents of thelegal norms as irrelevant. It means only that the concepts defined by the theory must holdwhat is common to all positive legal orders, not what separates them from each other.'Formalism' can be no objection to a general theory of law.71Preciselyin this indispensable'formalism', the puretheory states the commonfeaturesof all speciesof law without supposing an eternalessenceof law, as dotheories of natural law.72The pure theory is therefore'pure'in two senses. Normative scienceas suchis 'pure'in the firstsense, of beingfreefromconsiderations of evaluation. Eachnormative science then divides, in Kantian terms, into a 'pure part' and an'empirical part'. The pure theory of law is offered as the pure part of anormative scienceof law. It is, Kelsen insists,a puretheoryof law, not a theory

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of pure law.73 Causal analysis belongs to the empirical part: it is not to besubstitutedforbut added to normative interpretation.74The causal element inthe test of effectiveness(below) is not itself causal analysisbut an envisaging ofa respect in which causal analysis will be required. The answer to Hart'scriticismis that the pure partof the science identifies law and theempiricalpartcan then trace the connections of origin and effect.75Such is Kelsen's intention. So far as he envisages reflectiveor interpretivedescription, the pure part may remain independent of the material to bedescribed. Yet, so far as he retains refractive description, the bases of thescience remain within the terms of the subject matter and a division betweenpure and empiricalparts of the science is not feasible.

THE NORM AS 'OBJECTIVEMEANING'Kelsen's second departure from Weber concerns objectivity of meanings.Kelsen defines an ought as 'themeaning of an act of will'. Presumably,this willbe a 'subjectivemeaning' in Weber's sense. Thus, Kelsen supposes, one mightobserve that people in a room periodically raise their hands and one couldrecord the statistical regularitiesof the hand-raising.But one will understandthe hand-raising as voting only if one also, through interpretive under-standing, examines the meanings that the actors attach to their behaviour. Sofar, Kelsen is with Weber.76Weber would then have said that these subjectivemeanings might includethe actors' belief that the meaning is obligatory upon them. Science shouldrecord that belief - but in Weber's view science has no business decidingwhether that belief is true. Weber firmly declines to suppose 'an objectively"correct"meaning or one which is "true"in some metaphysical sense'." Forhim, science may be 'objective' through excluding ideology, yet not evenscience can claim absolute objectivity.But Kelsen asserts that the voting can be understood as legislation onlywhen the subjective meaning of the hand-raising is also understood as 'itsobjective meaning, that is, the meaning the act has according to the law'.78Now, Kelsen might be taking law here as his frame of reference, ust as Webertakes the frameof referenceof his sociology. But that would be to thinkwithinthe law, not to think in terms of a legal science. Rather, it seems, Kelsen issupposing within his legal science that legal meanings are 'objective' on theirown account. Why should he suppose that?Two reasons may be found. First, that it seemed obvious. In constructingageneral theory of law, Kelsen's principal concern is with the Romanisttradition, in which most western legal systems are found. In that tradition,'law (German, Recht)' in a general sense is readilycharacterizedas 'objective(objektivesRecht)', as distinct from a 'subjective'category (subjektivesRecht)corresponding to 'rights'. In English translation, 'law' no longer appears inassociation with an explicit claim of objectivity and the contrast betweenobjective and subjectiveis lost.

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Secondly,however, Kelsen offersan argument:the "objective"characterofa normis manifest in the fact that the norm not only binds the addresseeevenifthe addresseedoes not know or think about it but also continues to exist evenafter the will whose subjectivemeaning it is has ceased. What matters is theview of an observer to whom the norm is not addresed,suchas a legal scientist.79 Otherwise,Kelsen argues against Weber,a delict committed when the actordid not know of the legal norm characterizing such behaviour as delictualwould fall outside the legal-scientificdefinition of law.8s Likewise, it seems,Kelsen worries that bindingness would cease as soon as the legislator's mindturnedto another topic. But that is a political consideration - unless the legalscientist's concern is with the legislator's view of the consequences of thetemporarinessof an act of will. Even so, the legal scientistordinarilywillbe anaddressee of any general legal norm.It is helpful to see how Kelsen firstcame to the issue. Historically, he finds,one way to conceive of a norm as objectivehas beento attribute it to some kindof suprahuman subjectas its author. This could be 'God', or personificationsof 'Nature', 'Reason' or 'the State'. Most of these are obviously excluded byKant's ban on transcendence. In his first major work, however, Kelsen stillarguesthat the 'modernstate' is 'an entirelyextra-individualauthority'which'fulfils its obligating function independently of the will of the individual', sothat the positive law of which it is the author is 'objective'in existing 'over and

above human beings, independentof the subjective feelings of the individual'.Consequently that law can be represented in legal science only by anobjectivistic method that will present it as 'objective' and entirely'heteronomous'. It cannot be represented accurately by a subjectivisticmethod, which would make legal norms appear, like moral norms, as'subjective' and 'autonomous', deriving their bindingness merely from theindividual's 'recognition' of them as obligating. Indeed, from a subjectivisticstandpoint the apparent objectivity of legal norms appears as nothing but aproduct of 'projection'or 'objectivation';that being false, theway law appearsfrom a subjectivisticstandpoint is 'fiction'.81Kelsen was soon unhappy with this: personification of the state stillsmackedof transcendence. He leapt to a reviewer'smention of the philosophyof Hermann Cohen, where the state appearsnot as actually personifiedbut asan explicitly fictional personification of the legal order.82 The state wouldappear, to be precise, as a 'point of imputation'; from the standpoint ofnormativescience, stateand law are the samething.83The identityof state andlaw will concern us later. What is important here is that, although the state isreduced to a point of imputation, it remains the author of 'objective'norms.Moreover-just as when it was suprahuman- as a point of imputation, it doesnot appearas an actor. Consequentlythe meaningsof its acts of will, which arelegal norms, are not available for interpretiveunderstanding. I will return tothis.

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THELEGALORDER1. Ordersof NormsAn ought is a 'norm'if it is valid. Norms in this sensemay be followed,violated,orapplied.84 o speakof validityhere s to saythattheoughtoccursnotsinglybut nsomekindof order.8s Kelsendistinguisheswopossible ypesof order,whichhe calls 'static'and'dynamic'.86n 'static'order,normsareranked n hierarchyn a relation of generalto particular.Thus, from therelativelygeneralmoralnorm 'Love your neighbour'may be deduced herelativelyparticular orm Johnoughtto lovehisneighbour ane'.Eachnewnorm sderived rom he one 'above' t byapurelyntellectual peration.Therelationbetween he norms s oneof logicalvalidity orwouldbe,were heresuch a thingas practical eason.87Manyhavebelieved hatpositive egalnormsareordered tatically.Buttheidea of simple ogicaldeductioncould not have convincedsomeoneso wellacquaintedwithbureaucracys Kelsen.Norwas theideaof simpledeductionfroma norm madein Viennato a normapplicable o provincialpeasantsconvincingEhrlich,whose 'free law theory (Freirechtslehre)'f judicialdecision88paralleled he attentionto judicialpolicy developedby GenyinFranceandin Americanlegalrealism'and'sociological urisprudence'.Kelsen'sViennese olleagueMerkldeveloped, ndKelsenadopted,a modelof legalorderas dynamichierarchy, r 'stepsandstairs Stufenbau)'.n thismodel, a positive legal order is conceived as a chain of authorizationsaddressedto organs of the state. The 'higher'organ cannot foreseeallcircumstancesequiring egulation nd mustdelegatepower,withdiscretion,to a 'lower'organ.Thehigherorgancreatesa 'higher'normauthorizinghelowerorgan o createnot a particularlower'norm inwhichcasetherewouldbe no pointin thedelegating) uta lowernormof a certainkindandperhapsalso througha certain procedure.Thus, in the most familiarcase, theconstitutionauthorizes helegislatureo createstatutes,whichauthorize hehigher xecutive rgans ocreateregulations,whichauthorizeowerexecutiveorgansto create lesserregulations.Expressedmore precisely: ach highernormrecognizeshe act ofwillof the lowerorgan orrecognizesustom as a'law-creatingact'.Since here sa referenceo acts,atnostage s law-creationa matter implyof logicaldeduction.Thenew norm s not a productof logic,norevenaproductof knowledge sinceknowledge f theearlieraw,howeverambiguous,does not producea new norm.Theorgan'sact of willdrawsonboth the authorizingnormandothersources, ncludingnormsdrawn rommoralityandpolitics;however, he moralandpoliticalnormsdo not therebybecomepartof thelegalorder.Thehigherand ower egalnorms tand na relationof 'validity'nthe sensethat thehighernormauthorized hecreationof thelowernorm.In dynamicorder a norm 'is not valid because it has a certain content' but 'because it iscreated in a certainway'; in principle, it may have any content at all, althoughsometimes a highernorm prescribesthat lower norms must or must not havecertain contents."89The legal order contains both general and individual

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norms:Kelsen rejectsboth the Europeandoctrine that only generalnorms arelaw, which implies thatjudges do not make law but only apply it, as well as theextremeAmericanlegal-realistdoctrine that only the courts createlaw, statutebeing merely a source; there is no line to be drawn between law-creationandlaw-application.90 For this reason, a norm considered void - for example,because unconstitutional - is void only when declared so by a court of finaljurisdiction.91 'The doctrine of the hierarchy of the legal order', in short,'comprehends the law in motion, in its perpetually renewed process of self-regeneration.'92The model for 'validity' in this 'dynamic' sense is the sense of 'validity'familiar from constitutional and administrativelaw: one can readily see howthe idea of a dynamic legal order expresses, from the standpoint of legalnormative science, the form of the modern, bureaucraticstate. However, themodel is intended to be applicable to any 'form of state': democracy orautocracy, republicor monarchy.93Custom does not fit readily into Kelsen's picture. He supposes that regularbehaviour can give rise to a collective will that it is right, although thesubjective meaning of that act of will can become its objective meaning only ifa higher norm institutes custom as a law-creating fact, possibly as thefundamental law-creating fact.94 This way of incorporating customary lawinto the pictureof dynamicorder avoids supposing a romantic 'national spirit'that recognizes customary behaviour,95 yet it fails to address the problemsthat all philosophical positivists have with the idea of customary law: of howan ought can arise in the first place from an is; and of how, even then, thatought could be binding.Although Kelsen long supposed that dynamic order could contain staticelements,96he moved toward denying the possibility of static order even for amoral order, with three arguments. His first argument is, that the concept ofstatic ordersupposes the existence of practicalreason;thus he implies that nosuch ordercan exist.97The second and thirdargumentsreston the distinctionbetween generaland individual norms. A norms is 'individual'if it is directedtoward a particular person in respect of a particular act; otherwise, it is'general'.98Kelsen insists that dynamic legal orders contain individualas wellas general norms. The second argument is that what appears to be a deducednormis not actuallya new norm99 so that no question of orderingarises.Thethirdargument is that, since the author of a general norm cannot completelyforesee the behaviour to which the norm may be applicable, the norm mustalways be subjectto 'individualization', in which, out of the abstract, generalnorm, a concrete, individual norm will be created to apply in the particularcase. Accordingly, when a general norm is created it is then only partiallyvalid; it becomes wholly valid only when it has been individualized:thus thevalidity of a general norm is necessarily a dynamic process.100Drawing a distinction common in German theory, Kelsen specifies that hemeans 'constitution' in the 'material' sense - that is, 'the positive norm ornorms which regulate the creation of general legal norms', which may bewholly or partly unwritten - as distinct from a constitution in the 'formal'

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sense, which is a document and might contain other kinds of norm as well.'10(Thus,he mighthave said, thereis a 'BritishConstitution' in the materialsenseonly.) Later he relativizes the meaning of (material) 'constitution' by notingthat, in the dynamic chain of validity, each higher norm is a 'constitution' inrelation to each lower norm.'02 Except for the final act executing a sanction,law-application is also law-creation.'03The concept of dynamic legal order, Kelsen thought, marked the puretheory as anti-formalistic;he believed that it achieved with more rigour theanti-formalisticaims of the 'freelaw' theory and American 'legal realism'. Infact it denies that law can be seen as a logical whole and points juristicattention away from issues of contradiction and toward real socialconflicts.'04Kelsen distinguishes and emphatically rejectsa third sense of 'validity', asmeaning effectiveness.'05 Effectiveness, he insists, is not validity but acondition of validity. The validity of a positive moral or legal norm rests upontwo conditions of is: that the norm shall have been posited (its positivity) andthat it shall be 'by and largeeffective'(its effectiveness).To ask that a norm betotally effective would be absurd: a norm is posited precisely in order toregulateconduct contraryto it. Nor is a norm valid only when it is effective:itis valid when posited; only as valid could it become effective;but it loses itsvalidity if it fails to become, or later ceases to be, by and large effective.Likewisea legal order is valid even though not all of its norms areeffective,butloses its validity when it permanentlyceases to be by and largeeffective.Thusvalidity and effectiveness are not identical, although validity depends oneffectiveness- or, in other language, law (or right)is not the same as power(ormight), but is dependent on it: in this sense, 'law is a particular order (ororganization) of power'.'06 Where'effectiveness'means only conformitywithnorms, without considering the motive for the conformity, 'effectiveness' has'a normative, not a causal, meaning'.107While a legal order is ordinarilytreated as beingcomposed of singlenorms,Kelsen holds that a general norm is actually two norms. A general norm, hesays, is presentedin the form: 'People ought to refrainfrom stealing;if a courthas establishedthat a person has committed a theft, thatjudge ought to createan individual norm stating that that person ought to be put injail'. The latterpart, Kelsen holds, is a 'primary' norm, directed to an organ, stating thatcoercion ought to be applied; the former part is a 'secondary' norm, alsodirected to the organ, stating the reason for the primarynorm.'08This seems strange: Austin, for one, follows the sequence ofpresentation.109 Kelsen, however, is startingnot from the normas writtenbutfrom behaviour. Perhaps at no point is he more sociological. The primarynormis effectivedirectly,the secondarynormonly indirectly;the legal order iseffective principally through its primary norms."11What one observes ispeople being deprived of goods, imprisoned, executed. As one asks for themeaning that the actors attribute to their behaviour, one comes first upon anorm authorizing the organ to impose the sanction. Next one finds a normgiving the reason for that authorization - although this norm is perhaps

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superfluousand is often not stated distinctly but only implicit in the primarynorm.1112. LawandMoralityForpositiveegalnorms ocompose dynamicrdersforthem o 'havehecharacteristicf regulatingheir own creationand application"'12ndoccasionally elsenwritesas if this s thedistinguishingeature f law."13Elsewhere,owever,eholds hatmoral orms,oo,may ompose dynamicorder.The feature hatdistinguishesawfrom he other ocialorders, ndparticularlyrommorality,srathertscoercivenessnotonly hat texercises'psychicoercion',whichother ocialorders lsodo,but that t prescribesspecificcoerciveacts directlyas sanctions or nonconformity ith itsnorms.

14Moralnorms,n contrast, reencountereds norms egulatingparticularehaviouratherhanas normsprescribingsanction and henthesanctionsfirstpositive, sapproval,ndonlysubsequentlyegative,sdisapprovalandoftenwithout nynormprescribingsanction. hemoralnorm egulatingehaviours primary thesanctioning oralnorm,f any,secondary.' 1Kelsennsistshatmoralitys nopartof law.Lawhasno moral ontent:there renomala nse butonlymala rohibita;delict snotoutsideaworarejectionf lawbut swithinawas theconditionor mposing sanction."16Nor s lawassuchntrinsicallyood:o hold hat tissubjectshepositiveegalordero a new usnaturalismnd herebyrovidesn'uncriticalegitimation'of the order. ndeed,f one were o giveup'thesolidly ixed rontier veragainstheconcepts fmoralityndpolitics', ndcountmoralandpoliticalprinciplesndpoliciesntolaw,one wouldhaveto count n every actorinfluencinghecreation f law- includinghe nterests fparty ndclass."7This tancesstarklyvidentwhenKelsen xtendsheconcept fsanctionbeyondheconcept f reactionospecific ehaviour,o includeeactionsocircumstanceshat hestate indsundesirablearrestnsuspicion, rotectivecustody,nternment,xpropriationf propertyn thepublic nterest.Allthese,evencommittalo an exterminationamp, cannotbeconsideredstaking laceoutside he egalorder'."s8But heconcept falawoflaw snotextendedikewise.HereKelsen s tense.Within isphilosophicalositivism,n onesidehisstrong enseof moralitynd usticessubjecto an insistencehat usticeberelative,a justiceof tolerancewhichamongother thingsis a socialpreconditionorthepracticef science.'19 bversely,owever,eidentifiesandsubscribeso the modernappearancef lawas meretechnique.Hecharacterizesawas 'aspecificocial echniqueortheachievementf endsdeterminedy politics'and the legalscientist s a mere technician',otconcerned iththepolitical imsof thelegalorderbeing erviced.120 hisposition s vulnerableo the Frankfurtchool's ritique f philosophicalpositivism's privileging of technical or instrumental rationality. The'scientific'approach is privileged as 'objective', while the practically rationalreasons for adopting and pursuing it are always already removed from

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argument by characterizing all evaluation as merely emotional.121 In thisperspective, Kelsen privileges in the name of science the instrumentalismwhose extreme consequences as law he abhors and of which he was nearly avictim.122

LEGAL ORDER, JUDICIAL KNOWLEDGE, AND LOGIC1. Echoes of Legal RealismIn formulating a legal proposition describing a general norm, we have seen,Kelsen specifies: 'if a court has established (festgestellt)'. Recalling theKantian principle that there are no 'things in themselves', Kelsenacknowledges that the delict to which a sanction is imputed is not a raw eventbut an event as constructed under the concept 'delict', or a concept of aparticular kind of delict, by a court. Then, for example, the legal normprohibitingtheft says not 'If someone has stolen, thecourt ought to order thatthey ought to be put injail' but 'If the court hearing the case has establishedthat someone has stolen, that court ought to orderthat that personought to beput injail'.123 Under the secondarynorm, it seems, the court constructs a fact-in-law as a condition for the application of the primarynorm.Such a view of the matter inserts a cognitive element in the heart of thedynamic order, threatening to blow apart the dichotomy between thecategories of is and ought. On furtherreflection,Kelsen takes a distance fromthe specialized legal meaning of feststellen: 'to declare', as in a declaratoryjudgment. What the court does is 'not descriptive, that is, declarative, butconstitutive'. The establishing that a delict has been committed normallyforms part of the primarynorm.124The further Kelsen goes toward characterizing the secondary norm as'superfluous' - as either existing but unnecessary or existing only byimplication - the closer he comes to the extreme American 'legal realism' ofGray, who maintained that law is only judicially created norms, for whichlegislation is but a source,'12 and consequently also to abandoning the'separation of powers' differentiation of judiciary and legislature.126Kelsen does not, however, acknowledge courts to have unfettereddiscretion. Existing general norms require the courts to apply them, andcourts can depart from them only within the discretion that those normsallow. This fetteringis not set aside but only limited, in the extremeapplicationof the 'principle'of resjudicata, that an individual norm may be legally valideven though it does not correspond to any valid general norm, either whenthere is no such norm or when such a norm prescribesdifferently(recall that,for Kelsen, a void norm is so only when declared so by a court of finalinstance). This view corresponds, Kelsen believes, to the way that courtsactually behave.127

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2. Logic andnormsKelsen insists that, if thereis no practicalreason, logic cannot apply to norms.Logic is applicableto legal propositions but not to legal norms.Norms cannotbe true or false, only valid or invalid, in a non-logical sense, which is also theirexistence. The pure theory is not a 'legal logic'.'28 Where logic is applied tolegal propositions, still logical questions must not be confused withpsychological or political questions.129Kelsen deals with logic only in the form of the syllogism. A premiss orconclusion of a syllogism may describe a norm in three ways. First, by'quoting' the norm - for example, 'There is a valid general norm: "Everyoneought to keep theirpromises to others".' Second, by establishingthe existenceof a norm, as an objectivemeaning - that the subjective meaning of an act ofwill is also its objective meaning because the act is authorized by a valid normof a positive moral or legal order.Third, in logic of probability, there can be asyllogism concluding as to the probability that, in a particularcase, thejudgewill create an individual norm that will correspond to a certain generalnorm.130Nonetheless, Kelsen holds, within an ordernorms themselvesmay conflict.Conflictmay be two-sided, where to follow eithernorm would be to breach theother, or one-sided. It may be total or partial - partial when to follow onenorm would be to breach the other where it applies conditionally - and eithernecessaryor only possible. I will cite two of his examples. Between the norm'Bigamy ought to be punished' and the norm 'Bigamy ought not to bepunished' there is two-sided, total, necessary conflict. Between the norm'Murderought to be punishedwith death, if the murderer s more than twentyyears old' and the norm 'Murder ought to be punished with death, if themurdereris more than eighteen years old' there is one-sided, partial, and notnecessarybut only possibleconflict.'3' Sincelegalnorms canconflict,any legalnorm might face its opposite: therefore the values embodied in any norm canonly be relative.'32Kelsen's idea of conflict looks very like contradiction, but he insists that aconflict of norms is not even comparable with contradiction. For conflict ofnorms can be resolved by derogation, which is the application of a furthernorm, not of a logical principle.'33A legal order, Kelsen holds, has no gaps. He subscribes to the view that'whateveris not forbidden is permitted'.Whatevercould have been forbiddenyet is neither forbidden nor positively permitted- that is, permission expresslygiven - may be said to be negatively permitted;the individual is in that sense'free'. For the situation where an organ is faced with a quite unforeseen case,the legal ordercontains, expressly or tacitly, a norm authorizing the organ tocreatea new legal norm on the basis of moral and political principle;althoughthere is no norm to apply to the case, the legal order as a whole isapplicable.134

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3. UptheLawSo far, Kelsen's reasoning has been downward, in terms of the dynamic legalorder's chain of authorization. But he also reasons upward.He takes on board the view of both American 'legal realists' and Belgiantheory of legal rhetoric that a court may first intuit an individual norm toapply and only afterwards elaborate 'grounds' for its application. In thatsituation, Kelsen holds, the syllogisms are still relevant,but they describenotthe way in which the individual norm is created but the way in which itsapplication is justified; the description is still, as intended, of an organ'spractice.135 Again, the anti-formalisttendencyof theconcept of dynamic legalorder appears.In the same spirit Kelsen holds that, when a norm is obeyed, the personobeying it reproducesit, as meaning, in theirmind. The addressormeans, theaddressee understands; through that understanding, the norm becomes ameaning for the addressee; the addressee thereby addresses it to himself orherself.Although this is not to say that the addresseealways 'recognizes'- thatis, accepts - the norm; the addresseemight not obey it, or might obey it onlybecause of the threat of a sanction.136

However, when an organ to which a general norm is addressedis therebyauthorized to create a lower norm, it will do so only if it recognizes the highernorm as suitable for application to the concrete case. This will not be anexception to the dynamic order, but will be an authorized exercise ofdiscretion. A 'recognition' theory is correct to this limited extent.'37The salient feature of these arguments is that Kelsen is looking at theorgan's decision from the standpoint of the norm's addressee.'38

LAW, STATE, AND INDIVIDUALThe pure theory 'is objectivisticand universalistic',aiming 'to conceive in eachpart of the law the function of the total law'. Consequently it cannot view thelegal order from the standpoint of the individuallegal subjectand its interests.Thinking in terms of rightsmust be reduced to thinking in termsof the wholelegal order.'39 But this is to be done sociologically, for norms regulate notpersons as such but their behaviour. Accordingly, a 'legal relation' lies notbetween persons as such but between 'the behaviour of two individuals asdefined by legal norms', that is, as content of legal norms.'40Kelsen speaks of 'the state' in a broad and a narrow sense.'14 The state inthebroad sense is definedby territoryandpopulation. If one's eye is on humanbehaviour, one finds a rangeof legal orders. In some, general legal norms arecreated by a central legislative organ, so that the legal order may be called'relativelycentralized'.The idea of its centralizationrefersonly to its sphereofvalidity: for it may be valid over fragmented territory or differently fordifferentsectors of the population (for example, as to 'language,religion, race,sex or profession'), or not effectiveuniformly. Such a legal orderis a 'state'. In'the primitive pre-state order and the super-state order of general inter-

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national law', however, generallegal norms are createdthroughcustom. Thusthese legal ordersare 'relativelydecentralized'and should not be called states.Here, Kelsen adopts the idea of 'the state' in international law.The narrow sense is taken from state legal orders, as 'the bureaucraticmachinery of officials, headed by the government' (that is, the executivepower). This may be seen as a 'partiallegal order' within the total legal order.Thus one may speak of the total legal order exercising 'direct stateadministration', which is to say jurisdiction, and the executive 'indirect stateadministration', which is essentially, as conformity with the former's law, amode of transaction. Here Kelsen acknowledges the interventions by themodern state (in the narrow sense) in the 'private' sphere, as well as thebureaucratization of both public and private administration.The state in either sense, however, must be seen as the behaviour of realindividuals.Consequently,rightsand duties 'of the state' are to be understoodas rights and duties of officials. Since they are officials only as persons actingwith legal authority, every state is by definition 'governed by law' - that is, is aRechtsstaat.Therefore the expression Rechtsstaat is better confined to thosestates that may be describedas also committed to the ideas of democracy andlegal security.In traditional theory, just as the Christian religion presents 'God' as bothcreator-rulerand immanent in the world, the state has 'two sides' and is 'self-obligating': that is, it appears on one side as personified author of the legalorder, on the other as a legal subject, obligated by the legal order. With thedecline of 'a religious-metaphysical ustification of the state', this theory, thatof the Rechtsstaat,performs the inestimable ideological serviceof presentingthe state's self-justification through law. One of the pure theory's maincontributions, in Kelsen's eyes, is to have unmasked this ideology.One reason for Kelsen to understand 'the state' primarily under itsinternational-law concept is that this permits him to identify the state withthe legal order, independently of the concept of the state in the narrowsense, which attaches to the public-law aspect of the legal order. Indeed, itpermits him radically to relativize the distinction between public and privatelaw.Traditionaltheoryof the Romanist legal systemsdivides the legal orderinto'public' and 'private' 'law' (the Common Law systems also segregate 'public'law). Kelsen wants to relativizethedistinction. At the least, he holds, it is madeon differentcriteriafor differentpurposes.142 However, he goes much further.As with 'the state' in the narrow sense, a corporation may be seen a partiallegal order within the total legal order.143Indeed, all individuals appear as'organs'within the total legal order,in that they are 'authorized'to createlaw,at least by making contracts. Traditional concepts such as 'capacity','competence' and 'jurisdiction'hamper one's ability to see that the scope ofauthorization includes not only legislation and adjudication but also theexercise of rights and the formation of contracts and treaties. Whether anindividual is to be characterizedas a 'legal organ' in all law-creatingactivitiesor only, accordingto division of labour, in some (for example, as an official)is

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for Kelsen a moot point.'44 The main thing is that all such law-creation fallswithin the legal order.Thus the pure theory 'relativizes the contrast between private and publiclaw, which traditional legal science absolutizes - changes it from an extra-systemicdifference,that is, a differencebetweenlaw and non-law, betweenlawand state, to an intra-systemicone'. And in this the pure theory shows itselfonce again to be 'a true science' by dissolving the ideology involved in thedifferentiation of public and private law, an ideology that serves either toreleasegovernment from legal constraints or to create 'the idea that the realmof political domination is restricted to public law, that is, primarily toconstitutional and administrative aw, but entirelyexcludedfromprivatelaw'.The latter view creates the illusion that private relations, in the capitalistmarket, have, in their autonomy, an intrinsicrelation to democracy;whereasin capitalism not only norms of private relations but even generalnorms maybe autocratic as easily as democratic.'45As one would now expect, for Kelsen rights and duties derive exclusivelyfrom general norms and are themselves individual norms, considered inrelation to the subject to whose behaviour the general and individual normsapply. Rights are 'reflexrights', that is, correlative to an obligation (the ideathat rightshave priorityover duties probably derives from the idea of naturalrights): they are privaterights as power, through lawsuit, to participatein thecreation of an individual norm ordering the imposition of a sanction fornonfulfilmentof an obligation; political rights as power to participatein law-creation, whetherdirectlyas member of a legislatureor indirectlyas voter, orin creation of a norm repealingan unconstitutional norm; or rights as powerfollowing permission from a governmental authority. Rights do not stemdirectlyfrom individual interests, since the individual's right is only to obtainfulfilment of a state organ's duty to apply a sanction. Moreover, the provisionof such rights is not an essential function of law but pertainsonly to parts of acapitalist legal order.'46In the spirit of limiting the 'metaphysical bases' to what is strictlyfundamental to a universalconcept of law, such concepts as 'legal organ' and'reflexright' are characterizedas not essential to the pure theory but 'merelyauxiliary'- to 'facilitate the description'.147Another of these is the concept 'legal subject'. As distinct from the humanbeing, who is a construction of the natural sciences, the person is aconstruction in legal science or ethics;if a human being has both a legal and amoral personality, the human being as 'biologico-physiological unit' is theirsubstratum. The legal person (or subject) may be a physical or 'natural'person, or a juristic or 'artificial'person (such as a corporation or the state).These are not physical realities,nor even creations of the law, but convenientpersonificatorymetaphors throughwhich legal sciencepresents'the unity of acomplex of legal obligations and legal rights'.The person is not different fromthat complex, any more than a tree differs in substance from the sum of itsparts. The artificialityof thejuristic person is well known: but the physical or'natural'personis equallya construction of legal science as a component of the

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legal order. It 'has' rights and obligations only figuratively: to present thatimage as real is an ideological move intended to privilege rights of privateproperty.148The whole legal order, as effective in terms of individual behaviour,constitutes a 'legal community (Rechtsgemeinschaft)',to which in the lastanalysis authority is attributed and which is 'the state' in the broad sense. Inthis sense the legal order is a 'state legal order (staatlicheRechtsordnung)'.149Thus to place primary emphasis on the broad concept of the state may seemstrange, even a device to de-emphasize the narrow concept, until oneremembers that through Kelsen's lifetime international peace was notobviously the normal situation. He is surelyjustified in taking armies to bemore significantthan police.Now, perhaps, the riddle of 'objectivity' can be solved. Kelsen's primaryfocus is on human behaviour. When, secondarily, he examines the meaningsthat human subjectsattach to their behaviour, he finds that they understandtheir behaviour as contents of oughts, in particular of legal norms. Thesenorms, taken as a legal order, are also 'the state' in the broad sense. Humansubjectsthen appearas 'organs'of the state. Thus, on one side, human subjectsare always already organs of the state, in which case they cannot be theultimate authors of legal norms; while, on the other, the state itself appearsonly as a point of imputation. This point of imputation remains 'objective'inthe sense of Kelsen's firstmajor work. Consequently, its organs are endowedwith that objectivity and communicate it to the legal norms that they make.The authors of legal norms do not appear as subjectswhose meanings can becriticized within normative science.

STATE AND INTERNATIONAL LAWPublic international law falls within Kelsen's definition of law. It is an order ofnorms: a basic norm establishes the customary behaviour of states as a law-creating fact; from custom arise norms regulating the behaviour of states ingeneral. One of these norms is pacta sunt servanda(agreementsshall be keptto), according to which treaties are made. Some treaties set up internationalorganizations, such as the International Court, which issue further norms.Thus thereis a hierarchyof norms. The norms arecoercive, in that breach is byand large visited with a sanction, whether reprisal or war. Since the bellumjustum (just war) principle is universally accepted through treaty, warconforming to that principle is a sanction.150To say that international law authorizes or obligates states means that itauthorizes or obligates individuals indirectly, through the state legal order -just as that order authorizes or obligates individuals directly through thepartial legal order which is a corporation. The international legal norm ishowever 'incomplete' in that it specifiesonly the authorization or obligation,leaving to the state legal order identification of the individual to carryit out;that done, the individual's behaviour is attributed to the state, as the state's

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behaviour. In the same way, a state commits an international delict when itauthorises or obligates an individual to do something in contravention ofinternational law. That sanctions are exerted against all membersof the state,even if they were not involved in the delict, shows that state members arecollectively and absolutely liable for internationaldelicts. There is, however, atendency for international law to obligate individuals directly, such as warcriminals.In theseexceptional cases, collective and absolute liability gives wayto individual liability with fault.151IKelsen insists on 'theepistemological postulate:to understand all law in onesystem- that is, from one and the samestandpoint- as one closed whole'. Thispostulate excludes a dualist view of the relationship between state andinternational legal order. It permits only the two monist views: either thatinternational law is 'a legal orderdelegated by, and therefore included in, thestate legal order'or that it is 'a total legal ordercomprisingall state legalordersas partial orders, and superior to all of them'.'52 As late as 1941, Kelsenbelieved that this entailed the primacy of international law, to form with thestate legal orders 'one uniform, universal legal system'. 'As it is the task ofnaturalscience to describe its object- reality- in one systemof laws of nature,so it is the task ofjurisprudenceto comprehendall human law in one systemofrules of law'.153He had not yet distinguished clearly between legal norm andlegal proposition; if the legal proposition is formulated in terms independentof its subjectmatter,unity of theorydoes not entail unity of subjectmatter.'54However, international law has never been so effective and by the end ofWorld War II Kelsen preferredthe more realisticposition that the alternativemonistic views areequal in the eyes of science. Yet, politically, he maintainedthe inter-wartheme of 'peace through law' and a frank distaste for the state-centred outlook.155

THE BASIC NORMWhether norms are orderedthrough logical or legal validity, Kelsen believes,the ordermust have some 'basis(Grund)'. f the separationof'is' and 'ought' isto be maintained, that basis or ground can only be a norm, a 'basic norm(Grundnorm)'.Kelsen presentsthe basic norm of a positive legal orderby contrasting twosituations. In one situation, a robberdemands money from me. If I ask why Iought to hand my money over, no furtherreason can be found. The meaningof the robber's act of will is merely subjective. In the second situation, a taxofficialdemandsmoney from me. If I ask why I ought to hand my money over,the officialrefersto a regulation. IfI ask why I ought to obey the regulation,theofficial refersto a statute. If I ask why I ought to obey the statute, the (patient)officialrefers to the constitution. If I ask why I ought to obey the constitution,the officialmight be able to refer to an earlierconstitution on whose authoritythe present constitution was created. Kelsen characterizes that earlierconstitution or, if none, the present constitution as the 'historically first

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constitution', createdbycustom orrevolution. The official'sresources end withthe historically first constitution - but I can still ask why I ought to obey it.Kelsen proposes that thejurist- the legal scientist'56 - should 'presuppose',as the meaning of a juristic act of thought, a norm prescribing that thehistorically first constitution ought to be obeyed: 'One ought to obey theprescriptions of the historically first constitution.' Or, more fully: 'Coercionought to be exerted under the conditions and in the mannerprescribed by theby and largeeffective constitution and by the by and largeeffectivegeneralandindividual norms created according to the constitution'. That is: thatconstitution is to beunderstood in legal science as the objective meaningof theoriginatingcustom or act of will.This 'basic' norm does not actually exist: it is only presupposed in juristicthinking as the 'reason for the validity' of the order. Kelsen specifies it, inKantian terms,as a transcendental-logical presupposition - or, a constitution'in a transcendental-logicalsense' - that is, not a proposition describing lawbut a rational condition for constructing propositions describinglaw.157Nonetheless, for the case of a particular legal order, the particular basicnorm refers to a real constitution. The acid test of theconcept is a revolution:ifthe revolution succeeds, in the sense that the new constitution and the normsmade or adopted under it are by and large effective, thejurist presupposes anew basic norm.

Nor does Kelsen claim that the concept is original: it 'merely makesconscious what most legal scientists do, at least unconsciously' (that is, whenthey have not sufficientlyclarified their premisses), when they are not beingbehaviouristsor iusnaturalists.'58However, the presuppositionis not a moralrecognition. The legal order, which is also a state, is differentiated therebyfrom a gang of robbers, but the criterion is legality - not justice, as withAugustine.'59The presupposition of a basic norm plays a double role. On one hand, it isthe condition upon which science can understand some oughts as constitutingan order, hence as norms - whether legal or moral. On the other, it is thecondition on which legal sciencecan understand the meanings of some acts ofwill as objective - that is, as legal norms.It does not work. Although a basic norm is a scientific construct, themeaningof an act of thought, the thought is ofa norm. And one can stillask, inthought, what is the basis of that norm's authority. If the answeris a stillmorebasic norm, the questioncan be asked of that norm, too. Thus, presupposingabasicnorm, whichwas intended to tieoff the infiniteregressof questionsaboutauthorization,merelyrepeatsthe regress.Moreover, since even a hypotheticalnorm is conceived as the meaning of a hypothetical act of will, one findsoneself in a regressthrough ever less evidently human wills.It took Kelsen half a centuryto realize this. When he did, he reached for asolution as bold as that of the category of 'ought' or the 'basic norm' conceptitself. He declared that the basic norm is not a hypothesis but a 'fiction',though in a special sense. In everyday parlance, a fiction is a proposition that,although false, is useful. Vaihinger, however, had termed this a mere 'semi-

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fiction'. In Vaihinger's 'philosophy of "as if"', a proposition is a 'genuinefiction' if it is not only false but also self-contradictory. Kelsen held, in theseterms, that the basic norm is a 'genuinefiction' because, in addition to being aconcept of something that does not in fact exist, it is self-contradictoryin thatit embodies an infinite regress.160This does not work either. Vaihinger's concept is incoherent: what islogically invalidcannot be either trueor false, indeed is probablymeaningless.At one point, Kelsen held that a basic norm is presupposed by 'theindividual' in that the generalpopulation presupposes a basic norm and thatlegal science only brings it 'to consciousness'.161 He swiftly resiled from thatposition162 and rightly so: it is an empirical assumption, not obviously trueand Kelsen produced no evidence for it.If successful, the 'basic norm' concept is the keystone of Kelsen's puretheory and henceof his normativescienceof law; otherwise, it is theirAchilles'heel.163The heel has disintegratedof its own accord. Kelsen's theory of law isleft without even a means to identify a norm as legal.

CONCLUSIONSurveyingthis wreckage, an initial question is whether it is worth continuingon the same philosophical basis. Although the charge of 'formalism' can beanswered within Kelsen's philosophical framework, that framework itself isshaky. One problem is that the construction of reality simultaneously indifferent 'modes', so that a thing or person appears through a cubist sort ofcombination of aspects,164contains no guarantee that a construction in onemode will have anything to do with a construction in another- the notion of a'modally indifferent substratum' is obscure.16s Other difficulties lie in therejectionof practicalreason. First, the more one regards realityas constructedrather than given, the less ground there is for assuming that even thedescriptiveside of thought is rational. Second, there is much evidence for theexistence of practical rationality; indeed, it is hard to see the point of theconcept of legal order, even dynamic legal order, unless it is assumed that thecreation of legal norms is rational to some extent. Third, Kelsen provideshimself with only two options - that practical reason exists and is absolute,and that the practical sphereis only emotional. It is hard to see why he couldnot take the Weberian option of relative practical reason, corresponding tothe relative theoreticalreason in which both thinkers'conception of science isgrounded. A descriptive science of law, even as Kelsen conceives it, canproceed whetheror not thereis also a prescriptivescience of law and whetheror not the norms to be describedhave a relatively rational element.Resolution of the philosophical difficulties might strengthen Kelsen'senterprise or require its abandonment or transformation. Transformationwould be a three-sided task: (i) to complete the theory's stance of criticalindependence, (ii) to reformulate the theory compatibly with that stance and(iii), through the eyes of that reformulated version, to take the existing

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version as a rigorous example of the internal structureof legal ideology.The scope of enquiry would bring iusnaturalism back into the range ofobjects of study. Kelsen 'kicks off his theoretical ball to see where it rolls andwhere it stops if it completes its course without hindrance', which effects areductionad absurdumof legal positivism166- especially in the collapse of thepure theory with the loss of the concept of a basic norm. Yet, since thatconcept was meant to replacethe foundations of both legal positivism and (ifnatural law existed) iusnaturalism, Kelsen's end point tends to reveal thatlegal ideology embraces both legal positivism and iusnaturalism.167For acriticalperspectiveshould not simplydismiss erroneous beliefs as illusions168but study the fact that people hold those beliefs and act in terms of them.Yet the puretheory excludes the very issue of ideologyin the strong sense ofa kind of misdescription.169 First, Kelsen's interpretive understanding isconfined to the scientificconstruction of norms intheir orm as oughts. Save inthe moment when he considered that a basic norm might be presupposed bythe general population, Kelsen does n

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STEWART Critical Legal Science of Kelsen