by Hans Kelsen (with a new introduction by A. Javier Teviño). New Brunswick, NJ: Transaction Publications, 2006. 556pp. Paper. $39.95/€32.59. ISBN: 1412804949.
Reviewed by Pierre Brunet, University of Paris X, Center for the Theory of Law. Email: pierre.brunet [at] u-paris10.fr. Translated by Charles E. Butterworth, Department of Government & Politics, University of Maryland.
Nowadays, the GENERAL THEORY OF LAW AND STATE is considered as a classic among the writings of Hans Kelsen (1881-1973). Written in the United States – at U-California, Berkeley – where Kelsen found refuge after fleeing Vienna and Nazism, the work (published for the first time in 1945 at Harvard University Press) has as its goal acquainting lawyers of common law with the pure theory of law. Thus it falls within the direct line of Kelsen’s thought, but contains a few innovations that announce the second edition of the PURE THEORY OF LAW that Kelsen would publish in 1960.
The work is divided into two parts: Law and State. This division allows us to understand that the GENERAL THEORY OF LAW AND STATE serves as the hinge for Kelsen’s thought. While the question of law and state dominates, study of law prevails over study of the state. Kelsen gradually abandons the theory of the state in order to favor that of law, because that tack leads him to the conclusions of his major assertion that the state “is” the law, namely, the juridical system.
Thus, the first part of the work – law – revisits a distinction found in his earlier (1920) ALLGEMEINE STAATSLEHRE, namely, that between nomostatics and nomodynamics.
This distinction permits Kelsen to differentiate two conditions or instances of law: on the one hand, law as it is created; and on the other, the process of creating law. The part having to do with nomostatics gives him the chance to examine fundamental juristic concepts such as law, norm, sanction, delict or misdemeanor, legal duty, legal responsibility, legal right, competence, imputation, and legal person.
The thesis Kelsen strongly defends in this notion of nomostatics is his rejection of the attempt to confuse law and morality resulting from psychological analysis of juristic concepts. In doing so, Kelsen breaks as much with natural law doctrine as with John Austin’s positivism. The norm, asserts Kelsen, is not a command of the legislator’s will: “if the rule of law is a command, it is, so to speak, a de-psychologized command, a command which does not imply a ‘will’ in a psychological sense of the term” (p.35). To speak of “will” is to speak metaphorically, because “by the norm, nothing is said about the actual behavior of the individual concerned. . . . the ‘ought’ simply expresses the specific sense in which human behavior is determined by a norm.” In short, “an impersonal and anonymous ‘command’ – that is a norm” (p.36). This is an essential point. It allows us to understand that the juristic norm is not a [*260] description of what “is,” nor a prediction of what “will be,” but an “objective” prescription with respect to the juridical system from which it draws its validity. This idea is very important: a norm, asserts Kelsen, is neither true nor false; “it is not a statement about reality and is therefore incapable of being ‘true’ or ‘false’” (p.110). A norm can be only valid or invalid.
This assertion poses a difficult epistemological problem: if “the task of the science of law is,” as Kelsen contends, “to represent the law of a community,” the question becomes: how are norms to be described without reproducing them? Or, again, how are norms to be described without violating the separation between “is” and “ought” upon which Kelsen so adamantly insists? In short, how are we to describe without prescribing? The solution put forth by Kelsen is to speak of the “legal rule” or the “rule of law” “in a descriptive sense” (p.45).
This proposal called forth a large number of objections (most notably from realist legal scholars such as Alf Ross). Kelsen responded to them at length in the second edition of the PURE THEORY OF LAW (REINE RECHTSLEHRE) of 1960. Now, looking back, it is striking to note that the GENERAL THEORY devotes only a few pages to the argument that gave rise to a major epistemological discussion among the positivist legal scholars of the second half of the 20th century. The fact is that this argument in support of the “rule of law in a descriptive sense” is hardly satisfactory. Indeed, it leads Kelsen to a contradiction: on the one hand, he maintains that the science of law is a science in the sense that it is a description of facts; on the other, he asserts that norms are not facts, but “oughts” and that the science of law can describe these norms. At that point, however, science is no longer describing facts.
As I have said, nomodynamics has to do with the process of creating law. Kelsen asserts that this system has, in addition, the particularity of being dynamic; it regulates its own creation. In effect, for Kelsen, norms are not prescriptions logically deduced from other prescriptions, whatever the jurists of the 17th century who dreamed of axiomatic systems – something Kelsen calls a static system – might have thought. On the contrary, juridical norms are produced by one another; one norm [*262] is created by being applied to another norm, which in turn permits another norm to be created, and so on. In Kelsen’s thought, this concept of “hierarchy of norm” or “doctrine of law being formed by layers” (Stufenbaulehre) is not new. In the GENERAL THEORY, Kelsen returns to his earlier works that were strongly influenced by those of his colleague Adolf Merkl. Nonetheless, in the GENERAL THEORY, Kelsen dwells at length on the delicate and difficult question about the unity of this dynamic hierarchy of norms.
The problem is the following: we admit that a description is true if it agrees with sense-perceptible reality. However, a norm is neither true nor false, but only valid or invalid. Thus the question is: under what conditions is a norm valid? Kelsen responds very simply that a norm is valid “if it belongs to such a valid system of norms, if it can be derived from a basic norm constituting the order” (p.111).
Thus, for Kelsen, validity is not a quality of the norm that gives it its content, but a quality of the juridical system: a norm is juridical only because it is a part of a juridical system of norms. That allows us to understand that the “hierarchy of norms” is not given once for all time: it is constructed by organs so constituted as to produce norms.
Clearly, the major difficulty is knowing what gives unity to this system of norms. To resolve this question, Kelsen puts forth the hypothesis of the “basic norm” (Grundnorm). Static systems are the systems in which norms are deduced from one another, and their summit can be occupied only by one norm that is taken to be “true.” Dynamic systems, being, on the contrary, systems in which norms are produced by one another, their summit is occupied by the Constitution. But what are the conditions for the Constitution being valid? To establish the validity of the Constitution, Kelsen puts forth the hypothesis of a norm he calls “fundamental” and whose content is: “it is necessary to obey the Constitution.” The function of this basic norm, explains Kelsen, “is only the necessary presupposition of any positivistic interpretation of the legal material;” it is the reply to the question “how – and that means under what condition – are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible” (p.117)?
All the same, this basic norm is not a valid positive norm as are the other norms: “it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act” (p.117). And Kelsen adds that the introduction of this hypothesis does not modify his science of law: this hypothesis “merely makes explicit what all jurists, mostly unconsciously, assume when they consider positive law as a system of valid norms and not only as a complex set of facts, and at the same time repudiate any natural law from which positive law would receive its validity” (p.116).
The second part on the state presents analyses that Kelsen had already set forth in his large work, ALLGEMEINE STAATSLEHRE. In it, we find him developing numerous concepts that remain very pertinent. Among them is the thesis that is both original and completely characteristic of Kelsen, namely, his insistence on there being identity between law and the state.
This thesis leads him to dissolve certain traditional dualisms, such as, among others, that between natural law and positive law, that between law and the state, or even that between the sociological and the juristic [*262] concept of the state.
The target of the attack that he launches against this last dualism is clearly Max Weber, and, behind him, Georg Jellinek. Kelsen is intent upon demonstrating that “the sociological concept . . . presupposes the juristic concept; not vice versa.” The reason for the juristic concept having priority over the sociological concept comes from the notion that “the State as a legal community is not something apart from its legal order, any more than the corporation is distinct from its constitutive order,” or again “the community consists in nothing but the normative order regulating the mutual behavior of the individuals” (pp.182-183).
To be sure, the criticism may have appeared unduly severe, since Weber had himself already acknowledged the importance of juristic analysis. But Kelsen judges that Weber continued to think of the state as being distinct from law. Moreover, Kelsen goes on to draw out all the consequences of this idea in his general theory of law and the state such that the theory of the state follows the theory of law, whereas in his ALLGEMEINE STAATSLEHRE, everything that has to do with the theory of law (as much the concepts of objective and subjective law, obligation, and juridical person as the creation of the juridical order that he will later name nomodynamics) is treated after the theory of the state.
Thus, with Kelsen, the definition of the state is obtained only by means of a definition of law. This definition is known: law is a juridical order, a system of norms, better yet, a system of norms having a dynamic character as their essential trait: it organizes its own production and depends on no social reality external to itself.
An essential part of Kelsen’s thought, even today the GENERAL THEORY remains a fundamental book for anyone intent upon pursuing the enterprise of constructing a science of law with a positivist bent.
Kelsen, Hans. 1960. PURE THEORY OF LAW. Berkeley: University of California Press.
Kelsen, Hans. 1925. ALLGEMEINE STAATSLEHRE. Berlin: Julius Springer.
© Copyright 2007 by the author, Pierre Brunet.