Hans Kelsen's Introduction of the Pure Theory of Law On page one, paragraph one of his book, The Pure

Theory of Law, Kelsen introduces his theory as being a theory of positive law. This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which start from a Basic Norm (or, Grundnorm) where all other norms are related to each other by either being inferior norms, when the one is compared to the other, or superior norms. The interaction of these norms is then further subject to representation as a static theory of law (Kelsen's chapter 4) or as a dynamic theory of law (Kelsen's chapter 5). Defining 'Purity' of Legal Science Kelsen attempted to reconstruct 'legal science (Rechtswissenschaft)' as a science of 'norms (Normen)', in contradistinction to Immanuel Kant's conception of a science of 'causality' as used in natural science (Hans Kelsen, Society and Nature, 1946, pages 249-262, Keagan Paul Press). This type of legal science would be 'pure' in two senses. Firstly, it would be 'pure' in a sense analogous to that in Kant's Metaphysical Foundations of Natural Science. It would set out a priori a 'pure part' of legal science, consisting of a framework of fundamental concepts. Then, in an empirical part of legal science, this framework would be applied to empirical (sociological, historical and so on) material so as to understand that material as 'law'.[2] The science, in both of its parts, would also be 'pure' in a second sense, in being solely descriptive - excluding from the science any element of evaluation. The core subject matter of legal science, for Kelsen, is legal norms. He defines a 'norm' as 'the meaning of an act of will'. Thus, for Kelsen a norm does not necessarily have any element of generality - hence not all norms are rules. Indeed, as the meaning of an act of will, a norm is not intrinsically rational; departing from Kant both back toward David Hume as well as in the direction of contemporary philosophical positivism, Kelsen denies the existence of practical reason. Legal science, as Kelsen would like it to be, has to describe a legal norm without either evaluating it or adopting it as an evaluation. This can be done by distinguishing rigorously between the social statement that is the norm itself and the legal-scientific restatement of it that is, or is contained in, a description of the norm. Kelsen terms the norm itself a 'legal norm (Rechtsnorm)' and its descriptive restatement a 'legal proposition (Rechtssatz)'.[3] Thus, when a jurist (legal scientist) states that the law of a certain country contains the norm 'theft is to be punished with imprisonment', this legal proposition is not a comment on whether anybody in that country has a moral or other extra-legal obligation to impose, accept or evade such a penalty. In reading Kelsen, however, one has to bear in mind that, when he refers to a 'norm', he is usually speaking elliptically: he is uttering a legal proposition which stands for a legal norm, in much the same way that a picture of a dog shows the dog but does not bark. This kind of 'purity' already excludes ideas of natural law, in which description and evaluation are intimately connected. That leaves as the subject matter of legal science only positive law. Kelsen is a 'legal positivist' both in that he excludes evaluation from legal science, through a strict separation of 'is' and 'ought', and in that he considers only positive law to be law. Although he never made much sense of the idea of 'custom', he included all public international law as 'law'. At the same time, although it is not easy to reconcile with his rejection of practical reason, Kelsen was emphatic that politicians should support and make use of legal science. And legal scientists should assist them, for instance in law reform. Although if, when doing so, they go beyond the role of mere technician and recommend policy-based choices between possible norms, they will no longer be acting as legal scientists. For Kelsen, 'is' and 'ought' occupy

separate worlds as a matter of logic, but not in practice. Their logical separation should be incorporated into practice. Kelsen insisted that, if social scientists wished to deal with law, they would have to take their concept of law from legal science - that is, from the Pure Theory of Law. Kelsen made this point particularly against Max Weber, whose philosophical orientation and legal background were similar to his own. And, indeed, although Weber had said much about what is socially called 'law', he had not developed a clear concept of it himself. 'Legal Orders' For Kelsen as for other central European contemporaries, norms occur not singly but in sets, termed 'orders'. The ordering principle of an order of moral norms - and of an order of natural law, if one could exist - would be logical, as deduction. From the general norm 'do not kill other human beings', it follows deductively that A must not kill any other human being. Kelsen calls this a 'static' order. An order of positive law, he maintains, is not, or not centrally, like that. Although it forms a hierarchy, it is 'dynamic', in that its ordering principle is authorisation. Each relatively 'higher' norm authorises someone (an individual or an organ, primarily of the state) to create further and relatively 'lower' norms. In this is found the specific characteristic of positive law, hence of all law, that it regulates its own creation. Even though positive legal norms do commonly contain elements of generality, those elements are not central to the relation between a higher and a lower norm. This is a relation of legal 'validity' (not to be confused with logical validity), which is that the creation of the lower norm has been authorised by the higher norm. Since this moment of creation always involves extraneous considerations, Kelsen does not need to supplement his model with a concept of 'discretion'. What has to be consistent in a dynamic order of norms is only the process of authorising. This process can (and perhaps always does) result in multiple and mutually uneven strands of hierarchy, such as legislative, executive and judicial strands.[4] In each strand, at every point in the process of norm-creation, many types of extra-legal factor may be taken into account - moral, political, economic and others. Kelsen notes that, in this respect, the Pure Theory of Law has an affinity with American 'legal realism'. At the same time, the 'hierarchy' model does not readily fit a common-law system. It takes as its paradigm a single constitutional document under which codes and statutes are enacted, with both administration and adjudication in subordinate places. However, at least outside the USA, common-law systems are moving in the direction of that paradigm. The 'hierarchy' model also fits public law more readily than private law. It is difficult to be convinced by Kelsen's contention that, in private transactions, the parties are exercising legal authorisation. 'Basic Norm (Grundnorm)' Kelsen assumes, however, that the scientific representation of a positive-legal order, as a hierarchy of legal propositions, must have a guarantor of unity. This guarantor cannot be other than a component of the representation, hence a legal proposition. Being a legal proposition, it counts as a representation of an actual norm. So Kelsen calls it, elliptically, a 'basic norm (Grundnorm)'.[5] A basic norm is 'presupposed' in legal science for each order of positive law, to make it possible to understand that material as an order of positive law. This norm is simply that 'the historically first constitution is to be obeyed'. That constitution may have become established by custom or by revolution: the jurist does not evaluate the circumstances. Kelsen was always aware that a 'constitution' (Verfassung) might or might not be a single document. In some legal orders, indeed, it can be difficult to draw a line between 'constitutional' and other norms. In 1964, Kelsen relativised the idea of 'constitution', holding that each relatively

higher legal norm is a 'constitution' in relation to any norm created under its authority. This need not, however, wholly supersede a narrower sense of 'constitution', which identifies those relatively 'high' legal norms that can be changed only through a specially onerous process such as a large parliamentary majority or a popular referendum. To presuppose a basic norm for a particular positive-legal order does not involve any moral or other extra-legal evaluation of the basic norm's requirement of obedience. The jurist simply supposes that such a requirement has been stated. The jurist does so, irrespective of whether any such norm can be empirically discovered. At this point, serious difficulties emerge - with which Kelsen wrestled for much of his long life. One part of the problem lay in his starting point, the question 'Why should the law be obeyed?'. He gives the idea of a basic norm two roles. In one role, it is the guarantor of unity in legalscientific representation of a positive-legal order. In another role, it is an answer, for that legal order, to the obedience question - put in the more clearly descriptive form, 'Why is the law binding?'. One might think, rather, that to suppose for a particular positive-legal order simply that the historically first constitution (identified on this occasion) 'is to be obeyed' is instead to assume that a reason for obedience has already been established outside the legal order and beyond the ken of legal science. In that case, legal science would be seriously inadequate. On the other hand, if the reason for the bindingness of a legal norm is intrinsic to its 'legal' character, that reason might have to be sought in the 'legal' form of the individual norm and not in any kind of further guarantee. Another part of the problem lay in the requirement that the 'basic' factor be, or count as, a norm. Early on, Kelsen may have supposed that there could be such a real norm. Later, however, the 'basic norm' was relegated to being only a 'hypothesis'. In a philosophical light, nonetheless, it had the status - in Kantian terms - of a 'transcendental-logical presupposition', a logical condition for the possibility of a certain kind of knowledge. Eventually, Kelsen accepted the criticism that the concept of a basic norm involves an infinite regress. If the basic norm of a particular positive-legal order is an authorising norm, one can ask what is the source of the authority of the basic norm itself. If 'is' and 'ought' are to remain entirely separated, that can only be a still more 'basic' norm; and then the same question could be asked again, and so on infinitely. At this point, Kelsen took a further step back, accepting that the concept of a basic norm is doubly contradictory: it is self-contradictory in that it involves an infinite regress; in addition, since no such norm actually exists, to presuppose the existence of such a norm contradicts reality. The concept is a full 'fiction' in the sense to be found in Hans Vaihinger's 'philosophy of "as if"'. But then not much remains of it, although Kelsen evidently considered that what remained was vital. And there Kelsen ended, committed to an epistemology that was so radically relativistic as to challenge the very idea of authorisation. Nonetheless, if Kelsen does not provide an effective answer to the obedience question, he has posed that question - and many others - with exceptional sophistication.