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Academy of Political Science

Wiley
Kelsen's Pure Theory of Law
Author(s): Erich Voegelin
Source: Political Science Quarterly, Vol. 42, No. 2 (Jun., 1927), pp. 268-276
Published by: Academy of Political Science
Stable URL: http://www.jstor.org/stable/2142789
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KELSEN'S PURE THEORY OF LAW

IN

1925

Professor Kelsen published his Allgermeine S/aatslehre,'

made in a
in systematicformthe contributions
summarizing
on theoreticalquestionsof legal
seriesof earliermonographs
philosophy,
togetherwiththe resultsof his experienceas an expert
adviserto the AustrianRepublic,as theauthorof the AustrianConCourt
stitution,
and lateras a memberof the AustrianConstitutional
). Based on fifteen
( Verfassungsgerichtshof
yearsof painstaking
researchand practicalworkof thehighesttype,thistreatiseis thefirst
greatsystemof GermanStaatslehresince GeorgJellinek'swork. It
is likelyto be thestandardtreatiseon thesubjectforsometime. Its
forthesciencesof
achievement
and itsimportance
rankas a scientific
in Germany
are recognizedby itsreceptioninto
law and government
the Enzyklojcaedieder Rechts- and Staatswissenschaft.

It is impossible
in a shortreviewto deal withevena smallnumber
Kelsen. He dividesthesubof theproblems
expoundedbyProfessor
ject into threeparts. The firstdeals with thenatureof thestate,
going into detailed analysisof the relationsof the stateto society,
on the parallelsbetweencertainlegal
moralsand law,withsidelights
of
and theologicaltheories:forexample,betweenthe autolinmitation
thestateand theadoptionof humanformby thedeity,and between
theproblemsof statewrongand theodicy. The second parthas the
generaltitle "IValidityof the Order of State", with the sub-title
" Statics", and is devotedto such problems
as sovereignty,
therelaand
law, centralization
tions betweenstate law and international
confederations
colonies,federations,
self-government,
decentralization,
and unions. The thirdpart deals withthe" Dynamics"of governlayersof thelegalsystemsuchas theconstitution,
ment: thedifferent
statutelaw,courts,executionof judgments;theseparationofpowers;
and democracy,
thepositionofstateofficials,
autocracy
representation,
monarchy
and republic. The bookcloseswitha chapteron formsof
and philosophy.
government
For information
on anyparticular
partin thiswealthof materialthe
book itselfmustbe consulted. I wishto pointouthereonlysomeof
thatmaybe less well
theunderlying
principlesof itslegal philosophy
I Hans Kelsen, A4igemeine
Staatslehre,vol. 23 of Enzyklopaedieder Rechts-Una
Staatswissenschaf/.Berlin,1925.

268

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No. 2]

KELSEAV'S PURE

THEORY

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269

knownto the Americanpublic because the sourcesare not easily


accessible.
ProfessorKelsen's theoryof law and government
is styleda " Pure
Theoryof Law " (Reine Rech/slehre),withthe accent on theword
pure. It is an attemptto separatetheelementsof legal theoryin a
strictsenaseout of a mass of problemstraditionally
thrown
together
underthesomewhat
ofSfaatslehre. The movement
vaguedescription
in thisdirection
wasstartedin Germany
by Gerber,Laband and Jelon thepublic law of the NorthGermanFedlinek,thegreatwriters
erationand imperialGermany
in the period fromthesixtiesto the
of Germany
GreatWar. The unification
and theemergence
of a federalconstitutional
and adminiistrative
lawstimulated
speculationon the
problems
oflegal theory,and thesightof a magnificent
legalstructure
stateof disuniondrewattention
risingoutof theformer
unsatisfactory
to theproblemsofconcretepositivelaw as againstabstract
particularly
naturallaw. One mightsaythattheriseof theempire,thespectacle
of a new bodyof law beingcreated,provedfatal to the survivalof
on naturallaw. The hang-over
eighteenth-century
speculations
is by
evennow,butto be foundguiltyof adherenceto
no meanseliminated
naturallaw theoriesis a kindof social disgrace. The elimination
was
notachievedat once and Kelsen's earlierworksare directedin their
and keen criticismchiefly
thoroughgoing
againsthis predecessorsin
the Germanscience of Staatslehre,particularly
Jellinek.1This constantand vigorouscriticismmaymisleadmanyto overratethedifference betweenKelsenand theearlierwriters. But in theprefaceto his
niewbook,theS/aatslehre,he stressesthepointthathe considershimon thetradition
self to be carrying
of thesemenand to be doingin a
moreperfectwaywhattheywereable to achieveonlyin part.
Kelsenin hispurification
The newstarting
pointof Professor
oflegal
theoryis to be foundin his trainingin Neo-Kantianlogic. In the
Hauptproblemeder Staatsrechtslehrehe triesto separate the realm of

lawfromtherealmof naturalexistencewiththeaid of thephilosophy


and Simmel. It is not easyto givean accountof the
of Windelband
separationof the realmsof Sein (existence)and Sollen (essence) to
1 Kelsen, Haujt5iprobleme
der Sbzatsrechllehre,
entwickeltaus der Lehre vom
2nd ed. witha new preface,Tuebingen,I923); Das
Rechissalz(Tuebingen, I9II;
Problemder Souveraenitaetund die Theorie des Voelkerrechts
(Tuebingen,1920);
und der juristische Staatsbegrft(Tuebingen, I922).
,Der soziologische
For the
of the detailsof the puretheoryof law cf. ZeitschriftfueroeffenlZiches
development
A historyof the theoryis given by Fritz Schreierin
Rech/(Vienna, since I9I9).
Schule", in Logos,vol. XI, 1923.
his essay, " Die Wienerrechtsphilosophische

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270

POLITICAL SCIENCE QUARTERLY

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Americans,as the Kantian theoryof the a priori whichis the originof


this division in German logic is regarded in America with justifiable
suspicion and the explanations given by German logicians are not
clear. Law, in Kelsen's opinion, belongs to the realm
overwhelmingly
of essence, not of existence. To define this realm he relies on the
formulationsof Simmel, who maintains that Sollen (essence) is an
"original category" and that a definitionis impossible,just as it is
impossible to define Being or Thinking. That is verydiscouraging.
But if not a definition,a roundabout description can at least be
given: The realm of Sollen is a realm of postulates, not of existences in time and space. These postulatesmay demand that acts be
performedin time and space, but the postulate itselfhas its being in a
differentrealm. The postulate exists as a postulate regardless of
whetherit is put forwardby any human being, regardlessof whether
any one hears, reads or knows it. Usually a postulate arises out of
concrete historicalsituationsin the realm of existence,and it demands
certainfutureconcrete situationsin the same realm. Thus its conception is caused by existential being, and, if effective,the conception
motivates,is causative for,certain other existential events. But only
the conceptionof the postulate by an individual human being is caused
or causative in the chain of existence,whereas the ideal meaning of the
postulate itselfis beyond causalityin its realmof Sollen. Settingaside
all the differencesof traditionand the more intimatehues of the concepts, it is permissibleto identifythe realm of Sollen withthe realm of
essence as it is defined in the English and American epistemologyof
critical realism.
Positive law is a system of postulates in the realm of Sollen. Its
elements are the legal rules or norms,and the first task of a pure
theoryof law is the analysis of the elemental structure. The analytical
element of the legal systemdifferssomewhat fromthe actual contents
of statute-booksand decisions; the codes are adapted to practical purposes and divided into parts which contain chieflysubstantivelaw, as
e. g. the Civil Code or the Law Merchant, and otherparts which consist in theirbulk of remedial law, as e. g. the Penal Code. The theory
of law has to go beyond this surfaceappearance of legal rules and reduce them to the "pure and simple legal rule". This rule is composed of two parts: the firstcontains a statementconcerningunqualified human behavior, the second makes a statement concerning the
coercive behavior (Zwangsakt) of the state official. The complete
rule is a hypothesismaking the coercive behavior of the state official
dependent on the previousoccurrence of the behaviorsand events as

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No. 2]

KELSEN'S

PURE

THEORY

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27I

stated in the firstpart of the rule. Kelsen adopts for the whole rule
the formula:
If Mh+ E (or Mu + E), thenZ -e- M.

In this formulaM means a human behavior,eithera performance


E signifiesan event,usually produced
by the behavior (M); Z is the enforcingbehavior of the official,and
the arrow directed against M indicates that as a rule the behavior of
the officialis directed against the same individual that is responsible
for the behavior (Mh or MU).
The centerof gravityin the rule clearlyrestswith the enforcement.
Startingfrom the behavior of an officialthat is directed in a more or
less unpleasant way against some human being, this behavior is conditioned by the occurrence of other behaviors and events. These
operative facts for state activitywill be those that usuallyare called
" wrongs", and consequently,if Kelsen's formulais supposed to contain the elementarylegal concepts, " wrong" is an elementarylegal
concept but not rightor duty. The problem of law is reduced to the
governmentalenforcingmachinery,and otherbehaviorsand eventsare
introduced into the realm of law only as conditions forgovernmental
action.
The simplificationof the legal concepts will surprisethe American
lawyer who is accustomed to a wealth of rights,duties, privileges,
powers, liabilitiesand disabilities,and finds them reduced to events
and behaviorsof a nondescript color; but the advantages of the reduction froma theoretical point of view are undeniable. The reduction is no attempt to eliminate the various so-called legal relations
fromexistence; on the contrary,their elimination from the realm of
essence gives them theirstatusin existence. There may be all kinds
of social relations and intereststhat I should like to have protected,
but such wishesare of a subjectivenature,changingwith the development of society. Some of these interestsand wishes may be considered justifiedby the presentcode of ethics (e. g., my desire not to
have my watch stolen); othersare considered wrongby the same code
of ethics (e. g., picketing) ; but, right or wrong,these adjectives are
categories of an ethical description,and to enforce the present code
of ethics by social action a legal order is erected and maintained. It
oftenhappens that fortechnical reasons the concrete legal rule on the
statute-booktalks of " rights" and gives a descriptionof the protected
status but does not specifythe behavior or the events on which the
enforcingaction of societydepends. This formof language, however,
(Mh) or an avoidance (MU);

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introducing the ethical purpose into the legal means, should not
obscure the issue. Legal concepts in the strict sense are confined to
enforcingaction and operativefacts. Every so-called legal relationof
a complicated type may be dissolved easily into these elementaryconcepts. A rightmeans that afterthe occurrenceof a certain behavior
on the part of another person, affectingme, I may request the courts
to exact damages from him. A duty means that when I behave in a
certainway, the person affectedmay request the courts to exact damages from me. A privilege means that when I behave in a certain
way, no one can sue me for damages (e. g., when I have a license).
When a condition of no-rightexists,e. g. when I have given another
person a license, I may not exact damages fromhim forbehavior permittedby the license. Power means that my behavioris an operative
fact in changing another person's legal status (e. g. the case of an
offer). Liabilitymeans that anotherperson's behavior is an operative
fact in changing my legal status (e. g. I have the power to accept the
offer). Immunitymeans that another person's behavior is no operative fact in changingmy legal status (e. g. the case of tax exemption).
Disability means that my behavior is no operative fact in changing
anotherperson's legal status (e. g. I cannot sue and get judgmentafter
the statute of limitationshas run). The concepts thus analyzed may
be indispensable in the description of social relations,but they are
no elementarylegal concepts.
As a systemof law is part of the realm of essence, its categoriesare
differentfrom those of existence, the most notable differencebeing
that the categoryof causality has no meaning for law. Between the
statement,on one hand, of operativefacts in the firstpart of the pure
and simple legal rule, and on the other hand the statementof social
action, there is no causal relation. Theft may be the cause of imprisonment,but even when the police do not catch the thief and the
expectationsof the law-abiding citizen are disappointed, the ideal relation betweenthe operativefacts constitutingtheftand the penalty of
imprisonmentis not destroyed; even when the thiefactually escapes
he oughtto be punished. To distinguishthe peculiar ideal relationof
the oughtto be fromthe causal existentialdetermination,Kelsen introduces the term imputation(Zurechnung); imputationcreates in the
realm of essence the connection between operative fact and enforcement parallel with,but independent of, the causal relation between
them.
Other peculiar legal categories are those of independence and substance. The category of independence, usually called sovereignty,

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coherentlegalsystemfrom
of an internally
theindependence
signifies
anysuperiorset of legal rules. The charterof a corporationis not
sovereignbecause its validityis dependenton the state issuingthe
charter;a statuteis not sovereignbecauseitsvaliditydependson the
of the legal orderthat is the
constitution;onlythehigheststratum
forall therestmaybe called sovereign. Sovereignty
originofvalidity
ofa statemeansthatthereis no legalorderabove thestatefromwhich
thelegalorderof thestateitselfderivesitsvalidity.
clashes withthe
But at this point the theoryof state sovereignty
problemsof international
law. As a matterof fact,we have in our
" bywhich
present-day
international
law the processof "' recognition
a stateis acceptedas a memberof the societyof nationsand has to
obeycertainrulesof international
intercourse.The international
legal
orderrisesabove thelegal ordersof theindividualstatesand thereis
one and
goodreasonto namethishighestorderas thetrulysovereign
to considerthe statesentirely
devoidof sovereignty.This is not a
mereformof language,forin thecase of a nationalrevolution,
when
newinstitutions
are createdin a waynot providedbytheformer
conthe old and the new legal orderare entirely
stitution,
disconnected.
The connection
createdbetweenthemby international
law is a very
substantial
one, as usuallythemostimportant
partof it is therecognitionof the foreigndebtsof the old government
by the newgovernment. In case such debts are notat once recognizedinternational
is usuallybroughtto bearuponthenewgovernment
pressure
untilthe
" connection
" of theotherwisedisconnectedlegal ordersis effected.
The stratum
of international
law producesunityin the legal history
whenotherwise
ruptures
wouldhave occurred.
The categoryof substance,usuallycalled state,means the internal
coherenceofanylegal orderas a unit. It indicatesthateverypartof
it is derivedfromsomesuperiorpart up to the highestlayerof legal
rulesin theconstitution
or in international
law. There is actuallyno
difference
betweenthestateand thelaw forall legalpurposes. There
maybe a socialreality
in therealmofexistencethatproducesthelegal
orderwithitsunityor substance,butto mix up the problemof existence withthe legal problemof state is, to Kelsen,an unpardonable
mistake.
It seldomhappensthata legalphilosopherhas a chance to put his
theoriesintopractice. ProfessorKelsen had thesingularopportunity
of draftingthe AustrianConstitution
in accordancewithhis principles. The resultis a legal documentthatfroma technicalpointof
viewmayfairlybe called thebestof its kind nowin existence. The

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of thecontentto
of thequalityhas to be the restriction
firstcriterion
actions,and, so faras they
statements
of operativefactsforenforcing
behavof the enforcing
statements
are embodiedin the constitution,
iors. The constitution
oughtnot to containanymatterof purelydeorof merelypoliticalimportance,
e. g., a preamble,
character
claratory
or anytalk about legislativeand executivepowersat large that are
wouldbe the
vestedin some personor another. A secondcriterion
of thesestatements.
completeness
livesup to bothof thesecriteriato a reThe AustrianConstitution
due to the
markableextent. There are, however,severaldeficiencies
thereare one or
politicaldemandsofthepartiesconcerned;moreover,
due to oversight. In conformity
to the
twopointsof incompleteness
in generalthe languageis confinedto theone
principleof restriction
(jurisdiction),meaninga set of operlegal conceptof Zustaendigkeit
are in the mainnothing
ativefacts. The clausesof theConstitution
ofjurisdictions.For instance," The federalarmyhas
butdefinitions
to protectthebordersof therepublic" (art. 79, v). This clausedeof thefederalarmyand clearlyimpliesthatit is not
finesa jurisdiction
statedin the
to be usedforanyotherpurposesiftheyare notexpressly
is also definednegatively,for example,
constitution. Jurisdiction
to questionthevalidityof lawspub" The courtshaveno jurisdiction
lishedin the properway" (89, i). Again," To be valid all acts of
the presidentmust be signed by the chancelloror the competent
" (67, 2).
ministers
" contents
the " unnecessary
arereducedto
Beyondsuchstatements
a minimum. There is no conventional
preamble; yet,forreasonsof
"political optics," it was impossibleto avoid such declarationsas
"Austria is a democraticrepublic" ( i, i ). This sentencedoes not
definean operativefact,it has no legal consequences,and froma
technicalpointof view,it oughtto be eliminated. The statestrictly
mentthat"The law of therepublicissuesfromthepeople" (I, 4) is
but evenlegallyincorrect,
forthelawsof therenotonlyunnecessary
publicissuefromtheNationalCouncil; onlyin therarecases of initito thestateativeand referendum
maysome legal sense be attributed
the
ment. A similarcase is presentedby the postulate,introducing
sectionon juries,that "The people mustparticipatein the judicature". Again,notthepeople,butthejurors,participate;and therehas no legalconsequence. Suchcases, howforethewholestatement
ever,are veryfewand all of themare are pointedout by Professor
as unfortunate
inroads
on the constitution
Kelsenin hiscommentary
of politicaldemandson thedomainofscience.

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are evenfewer;in fact,thereis onlyone,


Cases of incompleteness
and thatis of slightpracticalimportance. Article138 runs: " The
(a) between
Courtdecides on conflictsof jurisdiction
Constitutional
(b) betweenthe Administrative
magistrates,
courtsand administrative
Court
betweenthe Administrative
Courtand othercourts,particularly
Court,(c) betweenthe statesamong themand the Constitutional
selves,as well as betweena state and the federation."This article
betweenthe Conof a conflictof competency
ignoresthe possibility
stitutional
Courtand theothercourts; thereis no finaldecisionpromaybe pointedoutas
vided forthiscase. However,thisdeficiency
theonlyone, the betterto show the high technicalstandardof the
e. g.,
are full of deficiencies,
document. Most otherconstitutions
of the
requirestwo-thirds
article5 of the United States Constitution
and
votes of both houses fora proposalto amend the constitution
or not; thesamearticle
a quorumis sufficient
omitsto statewhether
bythestatesand omits
fortheratification
a time-limit
does notspecify
or not.
Congresshas therightto fixa time-limit
to statewhether
withProespeciallywhentakentogether
The Austrian
Constitution,
introduced
whichcorrectsthedeficiencies
fessorKelsen'scommentary,'
eventin themodernhistory
forpoliticalreasons,is themostimportant
ofconstitutions
fromthepointofviewof legaltechnique. Moreover,
conof thepure theoryof law, it is a remarkable
withitsbackground
of democracy. In the Germantradition
to thedevelopment
tribution
naturallaw ideas fromthetheoryof positivelaw, Kelof eliminating
theproblemof legal
sen has goneto theradicalextremeof separating
The
interestsprotected
from
its
social
purposes.
entirely
technique
of
avoidchangesin
the
law
to
can
to
sanctity
law
no
longerappeal
by
theirpresentstatus,forlaw is shownin itsqualityas an apparatusor a
according
capable of protectinganyset of social relations
machinery
for
means
Laws
are
a
technical
code
of
social
to thecurrent
ethics.
to
If
wants
preserve
of certainsocial ends.
anyone
theperformance
the presentlegal orderhe has to defendtheequityof hisdemands
againstanyone whoventuresto challengethem. He cannotinsiston
mustnotbe changed
thatlegalstandards
thestatusquo bymaintaining
whodesireschangeis a Bolshevik. This developand thateverybody
to Ameriinterest
mentin Europeandemocracymaybe of particular
"
cans, becausethe" due processof law clauseand thepowersof the
blockedthepopulardemandforlegisSupremeCourthaveeffectively
I Kelsen, Die Verfassungsgesetze
der Republik Oesterreich,vol. V, Die Bundesverfassung(I922).

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lationon certainimportant
laborproblems,and havetenaciously
preserved,as regardslabor legislation,the survivalsfromthe" natural
law" period.
thelegalsystemintoan ideal realmofmeaningsand
By transferring
reducingit to an instrument
Kelsen destroys
anyundue respectfor
existinglegalinstitutions.The contentof law is shownto be whatit
is: not an eternal,sacred order,buta compromise
of battlingsocial
forces-and this contentmaybe changed everyday by the chosen
representatives
of the people accordingto thewishesof theirconstituencieswithoutfearof endangering
a divinelaw. The political
importof hisdoctrineexplainsin part thecriticalstandthat Kelsen
takesagainstcertaintheoriesof his predecessors,
particularly
against
the theoryof autolimitation.Under the Germanconditions
of conof the statewas interpreted
stitutional
government
theautolimitation
of theabsolutepowersof government,
as a limitation
embodiedin the
of
the
monarch,by thecontrolling
power parliament, amountof limitationbeing flexible. Consequentlyit was a perfectly
legal procedure,whenever
thecontrolof theparliament
becametoo oppressive
of themonarch,
in someway,
to evade thislimitation
to the interests
of parliament,
and to enjoya periodof absolue. g., by a dissolution
tism. In a truedemocracythelegalorderis notproducedbylimiting
in theplainestpossible
somebody'sunlimitedpowers,but bydefining
ofofficials. No stateentityhides
wayoperativefactsand jurisdictions
behindthelaw and issuesthelegal rules; everyrulecan be tracedto
itsoriginin a definitegovernmental
agency,whichagain is buta part
set up forturning
out legal rulesin accordancewith
in themachinery
social groups. The pure theoryof law thus
thedesiresof different
notonlyan important
in legalanalysisand technique,
signifies
progress
fromthe half-absolutistic
but also a development
philosophyof the
GermanEmpiretowardthespiritofthenewdemocracy.
ERICH

VOEGELIN

VIENNA

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