Ratio Juris. Vol. 13 No.

2 June 2000 (196±215)

For Kelsen*
ALBERT CALSAMIGLIA

1. His Intellectual Milieu

Hans Kelsen was born in Prague in 1881. His family was a fairly typical
example of a lower-middle class Jewish family in the Austro-Hungarian
Empire. While Hans was still a small child, the family moved to Vienna and
his education took place there.
The intellectual atmosphere of Vienna at the beginning of the century
was extraordinary. The city was rooted in the past, in a glorious political,
military, artistic and intellectual past, indeed it appeared to be the epigone
of an orderly society, hundreds of years old, in which the basic principles of
order and security had triumphed. At the same time, Vienna was a city of
deep-seated antagonisms and these would prove portentous in the century
that lay ahead. The Viennese intellectual community was nostalgic, yearning
for the past, and it was preparing at the same time for the great innovations
of the twentieth century. It is the Vienna of Mahler and Freud, the Vienna of
SchoÈnberg and dodecaphonism, a radical break with more traditional ways
of understanding classical music. But this very same Vienna worshipped the
epigones of the great romantic symphonic movement with Bruckner, Mahler
and, later, Richard Strauss. It is the Vienna of Adolf Loos's architectonic
revolution, of the revolution in philosophy with Wittgenstein and the logical
dissection of language; it is the Vienna that, conscious of the crisis and of
witnessing ``the last days of humanity,'' rebels in the face of decadence and
opens the doors of the twentieth century in many areas of thought, arts
and literature. Names such as Gustav Klimt, Karl Krauss, Arthur Schnitzler
and Otto Bauer are associated with important innovations. A very good
description of this intellectual climate can be seen in the first volume of
Robert Musil's work, A Man without Qualities, in Alan Janik and Stephen
* I wish to thank Stanley L. Paulson for valuable criticism and support, Silvia Mendlewicz for
her comments and her help in turning the text into English, and Jose Juan Moreso for welcome
criticism. I have to thank the CIRIT of the Government of CatalunÄa for financial support.

# Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
 For Kelsen 197

Toulmin's, Wittgenstein's Vienna, or in Stefan Zweig's memoires, Yesterday's

World.
The pessimistic premonitions become faits accomplis with the outbreak of
the First World War. The war meant the end of a millenarian Empire and the
disappearance of a way of life. Shortly before the catastrophe, however, the
ferment of a very orderly society, albeit with striking contrasts, yielded up
one of its last fruits: an opening towards the future in a number of different
areas in philosophy, literature and art.
Kelsen participated in this intellectual climate, living the intense life of
the Viennese during the years of his studies and beyond. His Pure Theory of
Law (Kelsen 1967) would lay claim to be an answer to the dissatisfactions
that stemmed from the legal science of the nineteenth century and, equally,
it would lay claim to being a serious attempt to rebuild a legal science that
could boast the rigour and the precision of any science worthy of that name.
It can be asserted today that contemporary general theory of law (Allgemeine
Rechtslehre) begins with Kelsen and that he is still an inevitable and unavoid-
able point of reference. It is on the work of Kelsen that today's descriptive
theory of law has been built.

2. Intellectual Biography
Kelsen's oeuvre is very large. He published over 400 works on a variety of
subjects, from the theory of law to political philosophy, from the history of
philosophy to legal anthropology. His production is marked, above all, by
methodological precision and by his ability to follow through on the logical
consequences of his various doctrines.1
Despite this wide-ranging work, often impressive, I believe that Kelsen's
most important contribution has been the Pure Theory of Law itself.
Kelsen's first important work appeared in 1911 under the title Main Problems
in the Theory of Public Law, which he published at the age of thirty; this work
opened up for him the doors of the academic Habilitation. In 1923, he
published a second edition of this work with an important new preface, and
in 1925, he published his Allgemeine Staatslehere (Kelsen 1925), which is a
systematic treatise of his thought. In 1934, he published a synthetic version
of his theory, The Pure Theory of Law, in 1945, he published his General Theory
of Law and State (Kelsen 1945a), and in 1960, he published the definitive
version of his theory, The Pure Theory of Law. His last work published

1
The Pure Theory of Law was developed over more than sixty years and has undergone a
number of changes. An interesting sketch toward a periodisation has been suggested by
Paulson (1990), one of the best specialists on Kelsen. See also Losano 1981; and Hartney 1991.
While it is clear that important changes have taken place in Kelsen's theory, the nucleus of the
Pure Theory of Law is strongly influenced by Kantianism and I deal, in this paper, with the pure
Kelsenian theory reflecting the Kantian influence (cf. Paulson 1992, 322ff.). Critics, on the other
hand, have emphasised the importance of modifications.

# Blackwell Publishers Ltd 2000.

198 Albert Calsamiglia

posthumously, General Theory of Norms (Kelsen 1991) has generated

important controversies.
In Kelsen's intellectual biography, it is important to distinguish two
stages. A first stage is that between 1911 and 1933. This is the Viennese-
German stage, and during this stage his main critical and constructive ideas
merge. He creates the Viennese school of the theory of law and combines his
activity as a theoretician of law with important legal tasks, drafting the
Austrian Federal Constitution with its Constitutional Court qua negative
legislator and serving as a member of the Constitutional Court. He is a jurist
who not only offers important contributions at a theoretical level, but who
also takes part in important legal decisions.
As a theoretician of law, Kelsen filled an important role in European
theory. He was the centre of discussion vis-aÁ-vis the main legal problems of
the period between the wars. He had important discussions with sociol-
ogists and realists as well as with natural law theorists. He had followers all
over the world, people who endorsed his ideas and popularised them. His
works were translated into many languages. The impact of the Pure Theory
of Law was extraordinary. In Spain, too, Kelsen had his followers and
supporters. Luis Recasens Siches and Luis Legaz translated his most
important works into Spanish during the period before the Spanish Civil
War.2
In 1929 the Christlich-Soziale Partei (Christian-Social Party) introduced
Constitutional ``reforms'' to oust ``life tenure'' justices from the Constitu-
tional Court. This decision drove Kelsen from Vienna, and he accepted a
chair at the University of Cologne.3 The year 1933 marked a new stage in
Kelsen's life and indeed in life in general all over Europe. The arrival of
Nazism prompted his departure from Germany and he then completed, in
Geneva, his Pure Theory of Law. He went twice to Prague, the last outpost in
which German was spoken. There, however, he endured insults and abuse.
He finally decided to emigrate to the United States. He was first welcomed
at Harvard University, and then by the University of California, where he
remained for the rest of his life. Kelsen's emigration to North America
separated him from the world he knew and, though he made efforts to offer
2
Luis Legaz resided in Vienna in 1929 and wrote a book on Kelsen (Legaz 1933). He was the
most influential Kelsenian in Spain. After the Civil War, however, namely in 1939, he no longer
followed the Kelsenian school and changed his views to bring them into line with the traditional
natural law theory of the Spanish tradition. He wrote books purporting to justify the New Legal
Order of the Dictatorship. It was a theoretical disaster that the best Kelsenian proponent in Spain
preferred to ally himself with the centre of political power and to forget his origins. In the 1940s,
he expressly wrote that he had never been a Kelsenian, for to be a liberal in Spain at the time
was dangerous. Recasens Siches, while living in Mexico in exile, had always been interested in
the Pure Theory of Law, and he criticised it on several occasions. See Recasens Siches 1929, one
of the best analyses of the Pure Theory of Law in Spanish. Later on, the Pure Theory of Law
became very successful in Latin America, especially in the Buenos Aires Circle.
3
I am very grateful to Stanley L. Paulson for this information. According to Paulson, the main
motivation for Kelsen's departure from Vienna was not the growing anti-semitism, although
this took its toll on members of his family, but rather this challenge to judicial independence.

# Blackwell Publishers Ltd 2000.

 For Kelsen 199

versions of the Pure Theory of Law that had American legal thought as a
point of reference, he never enjoyed any significant influence. The
atmosphere of empiricism that dominated the Anglo-Saxon world did not
appreciate the contribution of the Central European jurist. At present, in
North America, Kelsen is practically unknown, and with only a few excep-
tions, especially Stanley L. Paulson, Ronald Moore and, in Canada, Michael
Hartney, American Jurisprudence has totally ignored his contribution (see
Paulson 1988, 179ff.). This fact is no doubt due to the Americans' interest in
finding theories that have practical ramifications for the discussion of the
problems of adjudication. Even today, Kelsen in the Anglo-Saxon world is
identified with metaphysical thought, while in the Old Continent he is
doubtlessly seen as the great positivist jurist of the twentieth century.
Anglo-Saxon countries saw Kelsen as a representative of metaphysics and
of the unnecessarily abstract reflections of German philosophy. On the
contrary, Kelsen's influence in the German-speaking countries, and then
in Italy and France, Spain, Argentina and in Continental Europe generally
has been enormous.
I must mention specifically his influence in Spain, where Kelsen's work
was known very early on. Recasens and especially Legaz who, as mentioned
above, wrote his Ph.D. on Kelsen in 1929, made his works public before the
Civil War, and, in Barcelona, Josep Xirau was one of his followers.
Nevertheless, after the Civil War, Kelsen's works were virtually banished.
Legaz not only gave up his effort to make Kelsen's works known, but
he even tried to tie him to Jose Antonio's4 ideology (Legaz 1958, 163ff.);
the result was that his works disappeared from the Spanish University.
The Catholic natural law theory from Trento that dominated the Spanish
academy banished Kelsen as a dangerous liberal with socialising tendencies.
At the end of the sixties, we find the first translationÐthe work of ElõÂas
DõÂazÐof Kelsen's criticism of natural law theory. It had a great impact, in
Spain, among those of the younger generations. Then, thanks to Norberto
Bobbio and the efforts of certain younger professors, for example, Juan R.
Capella, Gregorio Peces Barba, ElõÂas DõÂaz and Luis GarcõÂa Sanmiguel, the
Pure Theory of Law became known once again, but only after a break of
about thirty years. During Franco's dictatorship, Argentina had taken over;
there the most important works on the Pure Theory of Law became very
well known. There was a polemical exchange between Kelsen and Carlos
Cossio; and other Argentinian authors, for example, Genaro CarrioÂ, Ernesto
GarzoÂn ValdeÂs, Eugenio Bulygin and Roberto Vernengo carried out the task
both of disseminating and criticising Kelsen's ideas.
At present, Kelsen is one of the best-known authors in our country. His
presence is significant in the Spanish-speaking scientific community, and he
has become a regular point of reference.

4
Jose Antonio Primo de Rivera founded Falange EspanÄola, the Fascist Party in Spain.

# Blackwell Publishers Ltd 2000.

200 Albert Calsamiglia

As far as Kelsen's personality and politics are concerned, it should be

noted that Kelsen was a liberal man of his day, inclined toward social
democracy. In his autobiography, he clearly states his ideals. He was
favorably disposed to social democracy, but regarded the need to preserve
the political independence of his profession. As he wrote, ``What I do not
grant to the state, the right to limit the freedom of research and to express
one's ideas, I cannot grant to a political party either, namely by conforming
to its discipline'' (MeÂtall 1976, 60). Kelsen was a supporter of the liberal
ideal, and he thought that the just state is that state in which the search for
truth can make progress. In What is Justice?, Kelsen puts it in this way: ``My
justice is the one of freedom, of peace, the justice of democracy and
tolerance'' (Kelsen 1957, 24). But Kelsen is not a metaphysician, he is not a
natural law theorist; rather, he is a proponent of relativism. He personally
lends his support to the idea of a vision of justice, but there exists no science
that can tell us what is just or unjust. Justice, for Kelsen,

is an irrational ideal. However indispensable it may be for volition and action of

men, it is not subject to cognition. Regarded from the point of view of rational
cognition, there are only interests, and hence conflicts of interest. Their solution
can be brought about by an order that either satisfies one interest at the expense
of the other, or seeks to achieve a compromise between opposing interests. That
only one of these two orders is ``just'' cannot be established by rational cognition.
(Kelsen 1945a, 13)

After having dealt with the general context in which the Pure Theory of Law
finds itself, I would like to point out two aspects of analysis respecting
Kelsenian methodology. The first is: What does it inherit from the tradition?
The second: Why is that tradition unsatisfactory? These two questions have
also been asked in other areas of thought and have been the ferment
required in order to be able to offer a new alternative, one that is differ-
ent from and more satisfactory than the traditional one. When saying that
Kelsen is a man who shall forever belong to Vienna, we tend to think that he
shares a respect for the past, that is, he tried to draw the best from it, but
this is not enough. There exists in the Viennese atmosphere the need for an
epistemological revolution in the area of law, a revolution that is parallel to
the revolution taking place in painting, literature, journalism, architecture
and philosophy.

3. The Positivist Tradition

During the nineteenth century, the positivist tradition developed in
Germany. Kelsen is a positivist and he considers himself to be an heir
to this trend of thought.5 Savigny's German Historical School and
5
On the influence of German legal dogmatics on Kelsen's thought, see KaradgeÂ-Iskrow 1936,
178ff.

# Blackwell Publishers Ltd 2000.

 For Kelsen 201

Windscheid's and Jhering's Conceptual Jurisprudence strongly influenced

the German public science of law, which applied the principles of private
law science to the analysis of public law and began to construct a science of
public law. Gerber, Laband and Jellinek were the leading figures in the
School. In 1925, Kelsen, in his foreword to his Allgemeine Staatslehre,
acknowledges the influence of his predecessors on him when he states:

I realise more clearly than before to what extent my task rests on my predecessors:
Now I feel more united than ever to the scientific approach that had in Germany as
its most notorious representatives Karl von Gerber, Paul Laband and Georg Jellinek.
This approach, while growing apart from the metaphysical nebula of the state,
claimed to be a theory of the positive state, that is, a strictly legal theory of the state,
without any political nuance at all. This theory was a part of the great scientific-
social movement that parallel to an analogous evolution in the area of natural
sciences was against the iusnaturalist speculation of the eighteenth century and,
taking as a basis the Historical School of the first third of the nineteenth century,
aimed at establishing a theory of real society, Sociology, and of positive law. Its
method was influenced more or less consequently by the Kantian criticism of reason:
the dualism Sein/Sollen; the substitution of hypostasis and metaphysical postulates
by transcendental categories as conditions of experience; the transformation of
absolute antithesis into relative, quantitative and intrasystematic ones [_] When I
accept the legal order as a set of norms [_] when I suppress the distinctions between
public and private law, between subjective and objective law, between legal norm
and subject of the law [_] all I am doing is developing a germ that was latent overall.
(Kelsen 1925, vii)

In short, Kelsen works within a tradition and grants that his contribution is a
natural continuation of a trend in research that has had illustrious represen-
tatives. His gratitude is explicit when he refers to Georg Jellinek as a point of
reference, for, as Kelsen (1925, ix) puts it, it is Jellinek who ``has synthesized
in a perfect way the theory of the state of last century: In most cases his ideas
represent what we could call the scientific heritage of the typical university
student.'' His Viennese look at the past is one of gratitude, to be sure, but
also of dissatisfaction. Kelsen thinks that the tradition in which he finds
himself approached correctly the path of research but that it has proved
itself to be unable to realize the project with the accuracy and neutrality
required by scientific knowledge.

4. Kelsen's Dissatisfaction
Kelsen has good reasons to feel dissatisfied. He thinks that the positivist
legal science developed in the nineteenth century is not a real science. For,
he argues, it lacks the features that knowledge would have to have to be
considered scientific: rigour and objectivity.
Nineteenth-century legal science is not a true science, for it lacks the
accuracy and exactitude, the objectivity and the political neutrality that must
be demanded from any knowledge that aims at being scientific. There are
# Blackwell Publishers Ltd 2000.
202 Albert Calsamiglia

two reasons for Kelsen's dissatisfaction: lack of methodological rigour and

lack of objectivity. These two aspects may be considered separately.

Methodological Rigour
Positivist legal science has an important concern with method. Gerber
applied the method of Pandectism to public law and created what would
later be called the German school of public law that dominated the second
half of the nineteenth century (Gerber 1852).6 Paul Laband, the great public
law jurist of the German Empire, followed in Gerber's path, demanding the
use of the legal method. In spite of the efforts made by this school, Jellinek,
at the beginning of the twentieth century, warned against the great
methodological confusion from which legal science had suffered and in
his Allgemeine Staatslehre he stated that ``whoever tries nowadays to carry
out research on the problems of social science finds that he is lacking a
doctrine of the method. The literature of the science of the state suffers on
that aspect from an extraordinary confusion'' (Jellinek 1900, 23).
Jellinek also shows his dissatisfaction and proposes a dualist alternative
that constitutes a complete doctrine of the state. He believes that

the general theory of the state must examine the State in its plenitude and most of all
bearing in mind two types of problems that correspond to two basic aspects for this
science: the state is, on the one hand, a social construction and, on the other hand, a
legal institution. According to that, the doctrine of the state is divided into social and
a legal doctrine of the state. Therefore, the general theory of the state includes the
sociological doctrine of the state and the legal doctrine of the state. The latter, that is,
the knowledge of the legal nature of the state and the fundamental concepts of public
law, is but a part of the general theory of the state [_]. Once this distinction has been
understood, as well as the link between these two points of view, constituting the
theory of the state, an error that is prolific in its consequences disappears, namely
(the idea) that the only just and exact explanation about the state is sociologico-
historical in nature, that it is, in a word, the non-legal point of view, alternatively, the
point of view for deciphering, by means of his method, the enigma that are linked to
the life of the state. (Jellinek 1900, 10,11)

Kelsen opposes this methodological proposition and, indeed, considers

Jellinek's theory to be a reflection of methodological syncretism, a criticism
that Jellinek himself addressed to his predecessors (see Paulson 1996a, 800).
The precise scientific treatment, Kelsen states, demands respect for method,
which is to say that legal and sociological methods are not to be conflated. In
the end, Kelsen's proposal comes to this: forget methodological dualism
altogether and adopt methodological monism as the only scientifically
defensible point of departure.

6
See also Gerber (1969, viii), where he states that ``the project is to conduct research and, from
an exclusively legal point of view, to prevent a politicization of the law.''

# Blackwell Publishers Ltd 2000.

 For Kelsen 203

The philosophical foundation of his criticism of Jellinek is to be found

in the Kantian theory of knowledge. Kant's Copernican revolution was an
epistemological revolution that moved the centre of attention from cognition
of the object to the cognising subject: It was he, this subject, who creates
his object. It is science that creates the object: From that standpoint, a single
object cannot be considered from two different methods. Kelsen argues in
the following way:

It is said that the state has two sides; one side corresponds to the part of nature that is
accessible to the knowledge of the sciences of causality, while the other is the legal
side, focusing on the normative legal knowledge [_]. This theory of the two natures
of the state must be considered as the dominant doctrine at present. But it lacks the
power to answer a criticism raised by the theory of knowledge; that is, the identity of
the object of knowledge is guaranteed only by the identity of the cognizing process,
that is, by the identity of direction of the paths of knowledge (Kelsen 1925, 6).

With this argument, Kelsen prepares the way for introducing method-
ological monism as an alternative, and he criticises Jellinek for having used a
method appropriate for the analysis of empirical data in inquiries that are
normative in character. This is nothing other than to incur methodological
syncretism (see Paulson 1990). Kelsen called his theory pure because he
wanted to purify it from all the methods that were not strictly juridical. His
great methodological prescription was to abide by the method.

Objectivity
Kelsen's dissatisfaction comes not only from a lack of precision in method but
also from a lack of objectivity. Legal science has often fallen short of
acceptable scientific standards and it has done so very often in the service of
political power. Kelsen thinks that one of the bases of the criticism of previous
legal theories must be their lack of political neutrality. Science is one thing,
and politics quite another. For instance, in his Introduction to the Problems of
Legal Theory he writes that ``Jurisprudence had been almost completely
reducedÐopenly or covertlyÐto deliberations of legal policy, and my aim
from the very beginning was to raise it to the level of a genuine science''
(Kelsen 1992, 1). Kelsen was always opposed to a defense, in the name of legal
science, of political postulates that have a merely subjective character.

It is precisely due to its anti-ideological character that the pure theory of law proves
itself a true science of law. Science as cognition has always the immanent tendency to
unveil its object. But political ideology veils reality either by transfiguring reality in
order to conserve and defend it, or by disfiguring reality in order to attack, to destroy
or to replace it by another reality. Every political ideology has its root in volition, not
in cognition; in the emotional, not in the rational, element of our consciousness; it
arises from certain interests, or rather, from interests other than the interest in truth.
This remark, of course, does not imply an assertion regarding the value of the other

# Blackwell Publishers Ltd 2000.

204 Albert Calsamiglia

interests. There is no possibility of deciding rationally between opposite values. It is

precisely from this situation that a really tragic conflict arises: the conflict between
the fundamental principle of science, Truth, and the supreme ideal of politics, Justice
(Kelsen 1945a, xvi).
Further on he states: ``The postulate of the complete separation between
jurisprudence from politics cannot sincerely be questioned if there is to be
anything like a science of law'' (ibid., xvii).
Kelsen's deeply felt dissatisfaction drives his criticism of all the theories
that employ methodological dualism. In this respect, Windscheid's,
Jellinek's and LoÈffler's theories, all of which are theories of the will, become
objects of criticism. The will theories claimed that a norm was valid because
it was willed, while Kelsen begins with validity as the prior criterion and
argues that a norm is willed because it is valid, which reduces will to a
purely ancillary factor. A norm is a scheme of interpretation of human
behaviour and psychological or sociological interpretations of will only
contribute confusion and amount to methodological syncretism. In follow-
ing this path, Kelsen submits all the positivist dualisms of the nineteenth
century to criticism. The Pure Theory of Law appears as a monist doctrine.
Kelsen's work takes an especially critical stance vis-aÁ-vis natural law
theory, which has not been able to distinguish between the law that is and
the law that ought to be. Natural law theory as a form of knowledge is
unable to retain the objectivity that counts as one of the desiderata of science.
Kelsen's criticism points not only toward natural law theory. Traditional
legal positivism, too, has been used to justify power thus betraying one of
Kelsen's basic ideals, and Kelsen criticises it harshly on this score. Kelsen
calls his theory ``pure'' because he wants to purify it from politics.
To sum up: Kelsen is dissatisfied for two basic reasons. The first is that
legal science has not been able to construct a specific method; rather, it has
lapsed into methodological syncretism. By doing so, it casts into doubt one
of the ideals of any science, that is, exactitude. The second ground is that
legal science has not respected the demand for objectivity. It has many times
betrayed its engagement with truth in order to defend the political status
quo. All of this takes Kelsen to a rather pessimistic conclusion: There has not
been, up to now, a real legal science. This pessimistic diagnosis does not,
however, render Kelsen helpless. Rather, it leads him to his constructive task:
Kelsen has some very specific aims to achieve, and he thinks that he has been
able to set out in the direction of a truly defensible legal science, a path legal
science might follow. The Pure Theory of Law is the answer to this challenge.

5. What Must Legal Science Be Like?

Kelsen's project is that of raising jurisprudence to the level of a science that
reflects the standards of other consolidated sciences. In order to achieve this
goal, he must establish a method that makes it possible to define the object
# Blackwell Publishers Ltd 2000.
 For Kelsen 205

and he must adhere steadfastly to this method, to achieve the rigour and
objectivity that any science would have to have.
The Kelsenian project consists in creating an autonomous, systematic and
unitary theory of law. Throughout his life, Kelsen continues to modify
aspects of his theory; on the whole, however, it can be said that the Pure
Theory of Law represents one of the most complete efforts to construct a
theory whose objects are the norms of positive law. And this point is worth
emphasising: The Pure Theory of Law aims at being a theory of positive law.
Kelsen has as his aim the construction of a theory, however, not of the
contents of positive law, rather it is a general theory of positive law. The Pure
Theory of Law appears as general because it aims at describing the formal
structure of any positive law.

The subject matter of a general theory of law is the legal norms, their elements, their
interpretation, the legal order as a whole, its structure, the relationship between
different legal orders, and finally, the unity of law in the plurality of positive legal
orders. [_] The general theory, [_] is directed at a structural analysis of positive law
rather than at a psychological or economic explanation of its conditions, or a moral or
political evaluation of its ends. (Kelsen 1945a, xiiif.)

Kelsen's aim is to construct a descriptive science of law that has as its object
the normative aspect of the law. It is, therefore, a descriptive science that has
legal norms as its object. In this respect, it can be said that it is a science that
does not aim at issuing norms, it does not aim at prescribing;
its only aim is to describe a normative object. With a very rigorous criterion,
Kelsen tries to separate description from prescription, the Sein from the
Sollen. The demand for neutrality prevents him from using the theory
prescriptively. The question that Kelsen asks himself is what positive law is
like, what its fundamental categories are. It is the vision of a neutral
observer. Kelsen, on the whole, does not aim at giving answers to the
question: What must I do?, for this would imply a conception of science as a
creator of norms. Kelsen's theory is very far from the contemporary theories
that address the solution of practical legal problems.
In Kelsen's mind the idea of what a theory of law must be like is very
clear. He proposes methodological rigour and objectivity. From the point of
view of metajurisprudence, he has a theory that is clearly prescriptive. How
is he going to achieve this aim?
Three ideas permeate the Kelsenian methodology. The first is the idea of
autonomy, the second, is the idea of systematicity, and the third, is the idea
of unity. Let us deal with them separately.

Autonomy
The Kantian influence on Kelsen's theory is very important and, notwith-
standing Hume and the empiricist influence, it can be stated that the
# Blackwell Publishers Ltd 2000.
206 Albert Calsamiglia

grounding of the Kelsenian methodology is found in Kant's Critique of Pure

Reason (see Paulson 1990; Losano 1981; Bulygin 1991). Kelsen rejects the
Critique of Practical Reason, believing that Kant was unable to apply the rigour
and objectivity of the Critique of Pure Reason to the moral and legal sciences.
Kelsen's question has a clear Kantian inspiration. What are the conditions
that make legal science possible? The Kelsenian answer takes the form of
a methodological criterion, the principle of imputation, that makes possible
the selection of its object, and a logic-transcendental categoryÐthe basic
hypothetical normÐthat makes legal knowledge possible.
Autonomy is achieved if a method making the selection of the object
possible is designed. Kelsen considers that physical science has been made
possible, thanks to the construction of a basic principle, the causal prin-
ciple, on the basis of which it is possible to select the formal object. The
principle of causality seen from a formal point of view, links certain con-
ditions to certain consequences by means of a nexus of need or probability.
Physics has been possible because this differentiating principle, also an
ordering principle, has been constructed.
Legal science if it is to have a set of norms as its object cannot use this
ordering principle. The causality principle is not suited to the selection of
norms, for they are not governed by causality. Rather, the principle of
causality is addressed to the selection of facts or behaviour. Thus, the use
of the principle of causality to select a normative object would be a mistake;
a different principle is required, one suited to a science addressed to norms.
In the past, Legal science has not qualified as a true science, for it has not
been able to create a method yielding a description of the norms.
Kelsen proposes the principle of imputation as the basic methodological
criterion. Like the principle of causality, the principle of imputation links
condition to consequence. The difference between them consists in the fact
that the principle of causality has a nexus that links a condition to a
consequence, that is established out of need or of probability. This means that
whenever the condition exists, the consequence also exists, or alternatively
there is a probability that the consequence exists. In contrast to that, the
nexus of the principle of imputation is a nexus of Sollen, that is, a norma-
tive nexus. What defines norms is the fact that the proscribed act and the
sanction are linked by the tie of the Sollen. Whenever a proscribed act is
carried out, a sanction ought to take place. It must be noticed that there exist
important analogies between the principle of causality and the principle of
imputation in so far as the form is concerned, but the difference between
them is to be found in distinct types of nexus.7 In the causality principle, the
relationship between a condition and its consequence is independent of

7
One of Kelsen's most important contributions, outside the specific field of legal theory but
closely related to it, is the idea that the principle of causality arises as a derivation from the
principles of imputation and retribution. See Kelsen 1957.

# Blackwell Publishers Ltd 2000.

 For Kelsen 207

human will, whereas in the principle of imputation there exists a mediation

of will.
With this formal criterion, Kelsen aims at distinguishing clearly between
the sciences of Sein predetermined by the principle of causality and the
sciences of Sollen predetermined by the principle of imputation. Sociology is
not a science of Sollen, for it deals with facts and social behaviour and
physics is not a science of Sollen, since it deals with phenomena that can be
explained in terms of the principle of causality. In contrast, ethics or juris-
prudence are disciplines that deal with Sollen, with moral and legal norms,
and they have as a delimitating methodological criterion the principle of
imputation.
By means of the principle of imputation, Kelsen, following the Kantian
idea according to which science creates its own object, is able to differentiate
between the sciences that deal with norms and the sciences that deal with
facts. The difference is a methodological one. The former is organised
around the principle of imputation, while the latter is organised around the
principle of causality.
But, does this criterion suffice to delimitate the formal object of legal
science? It seems necessary to introduce another type of criterion too, for we
find, within the normative world, legal, social, religious and moral norms. A
satisfactory delimitation of the object requires a differentiating criterion.
Kelsen, following the positivist tradition, proposes the specific criterion of
sanction. It has very often been suggested that morals can be separated from
law by content, by source, by origin. Kelsen, however, thinks that the only
way to differentiate between law and the other normative orders is by
means of the specific type of sanction. Kelsen is suggesting, here, a difference
between transcendent and immanent sanctions. Transcendent sanctions
take place in a hypothetical world beyond, while immanent sanctions take
place in this world. By means of this criterion, Kelsen is able to separate
legal norms from all religious norms with their transcendent sanction. This
step is important, but not definitive, for there exist many norms that have
immanent sanctions, and are nevertheless not legal norms. Moral and social
norms are norms that offer sanctions in this world. Thus, the proposed
criterion needs to be complemented by another, more precise criterion.
Kelsen suggests that the type of legal sanction is heteronomous in nature,
that other subjects apply the sanction, so to speak, from the outside; legal
sanctions are external. Moral sanctions are of a different type. No moral
policemen or moral prisons exist. Moral sanctions are purely internal. The
model of moral sanction is remorse. In remorse, the subject who has violated
the moral norm applies the sanction to himself. It is not possible to feel
remorse for failing to conform to a moral principle that is not shared.
In this way, Kelsen distinguishes between legal and moral norms, but the
criterion is still not sensitive enough to distinguish between social and legal
norms. Kelsen's proposal is for a criterion identifying those sanctions that
# Blackwell Publishers Ltd 2000.
208 Albert Calsamiglia

are organised and institutionalised. Those social norms that organise

coercion and are institutionalised are legal norms, while the norms that
do not have organised and institutionalised coercion are not legal norms. The
fact that coercion is institutionalised presupposes that there exist criteria for
identifying acts which are the proscribed acts and for identifying, too, the
corresponding sanctions. There exist sanctions in various areas of the law
and to various degrees of severity. There also exist certain organs that are to
impose coercive measures and there exist preestablished procedures. The
organisation of coercion and of sanctions is subject to degrees. And a certain
degree of institutionalisation is necessary in order to be able to speak about
legal norms and, indeed, about law in general.
Kelsen's approach opens a door for considering the law as a system of
norms, for it is essential, in the law, that there exist patterns of behaviour,
and other types of elements organising coercion that are not norms of
behaviour but rather norms of competence or secondary rules.
The Kelsenian path, I believe, is exacting, difficult, and in the end
successful. The possibility of legal science lies in the invention, on the part of
the legal scientist of a method making possible the selection of the object.
There are two criteria proposed by Kelsen. The first one is the principle of
imputation which makes possible the separation of the natural and social
sciences from normative sciences by means of a criterion different from the
principle of causality. Normative sciences must have a methodological
criterion of their own: the principle of imputation. This is the first step
toward achieving autonomy.
Secondly, it is necessary to propose criteria that make it possible to dis-
tinguish between legal norms and other types of norms. Kelsen's proposal is
to use the criterion of a specific type of sanction. The legal sanction is an
immanent one, external-heteronomous, organised and institutionalised.
Bearing this criterion in mind, it is possible to define the object of study.
The aim of autonomy seems, on the whole, to have been achieved. When
enquiring into the origin or the foundation of validity, we will see that we
have to use, in addition, the criterion of the basic norm qua logico-
transcendental condition of legal experience. Kelsen's criteria, without the
basic norm, would lack the means of differentiating between a gang of
robbers and the state, for the basic norm could establish an organisation of
coercion equal or superior to the state. But we may set aside this problem for
now. It will not prevent us from admiring a construction that is simple,
elegant and convincing.

Systematicity
Autonomy is not enough to raise jurisprudence to the level of a science. It is
necessary, too, that the theory be free of contradiction. Science presupposes
logic.
# Blackwell Publishers Ltd 2000.
 For Kelsen 209

Kelsen's thesis may seem a bit strange today. We would all agree with
Kelsen on the point that science presupposes logic and does not discuss it.
But Kelsen draws, from this postulate, a series of consequences that are
difficult to accept. Kelsen believes that there exists a pre-established
harmony between the descriptive propositions about legal norms and the
legal norms themselves. This parallelism implies that if there exists a conflict
between the norms, there will also exist a contradiction between the prop-
ositions describing them and he therefore concludes that if we want science
to be free of contradiction, the law must be free of conflict. If the theory of
law is to be systematic, then the law must be systematic too.
Kelsen maintained this theory of the systematicity of law until the 1960s.
For instance, in the second edition of the Pure Theory of Law, he still states
that
Logical principles are applicable, indirectly, to legal norms to the extent that they
are applicable to the rules of law which describe the legal norms and which can be
true or false. Two legal norms are contradictory and can therefore not both be valid
at the same time, if the two legal propositions that describe them are contradictory
and one legal norm may be deduced from another if the legal propositions that
describe them can form a logical syllogism. (Kelsen 1967, 74)
Kelsen does not make a clear distinction between the level of legal science
and the level of legal language. The systematicity of the law is not a con-
dition of the systematicity of theory. The main role of a theory, from the
Kelsenian point of view, is not to modify the law or to prescribe how it
ought to be, but to describe the law as it is with its imperfections, gaps and
contradictions. Too strict a postulate of rationality leads Kelsen to
unacceptable conclusions, even if the presupposition of rationality, under-
stood in a different way, has had a great influence on current legal theory
with its concern over how one is to act or to decide. In a way, Marburg neo-
Kantianism led him to fail to appreciate the relationship existing between
the language of law and the language of jurists (see Bulygin 1991, 377).
Only very late in his career did Kelsen grant that the law could have
contradictions and that the science of law could not modify the law; this
did not, however, lead him to rethink the systematic character of the law
(cf. Kelsen 1962, 1965, 1991). The ideal of systematicity is at present an
important one; Kelsen put forward an erroneous conception of this ideal,
and we are in a position today to criticise it. But there is something very
important that we can rescue from Kelsen's approach: the systematic non-
contradictory character of the theory of law.
Thus, regardless of the problems found in his conception of legal science
and of a legal system, it is Kelsen who has set the path to be followed by the
theory of law. The relationship between norms is of fundamental import-
ance and that is why the general theory of law in the second half of the
twentieth century has paid unusually close attention to the study of norma-
tive systems. The work of Hart (1961, 1970, 1983), Raz (1979) or AlchourroÂn
# Blackwell Publishers Ltd 2000.
210 Albert Calsamiglia

and Bulygin (1971) present a critical dialogue with the Kelsenian proposal.
Kelsen thought that law is an order within human behaviour.
Law is an order of human behaviour. An ``order'' is a system of rules. Law is not, as it
is sometimes said, a rule. It is a set of rules having the kind of unity we understand
by a system. It is impossible to grasp the nature of law if we limit our attention to
the single isolated rule. The relations which link together the particular rules of a
legal order are also essential to the nature of law. Only on the basis of a clear
comprehension of those relations constituting the legal order can the nature of law be
fully understood. (Kelsen 1945a, 3)

As central ideas of intranormative relationships, Kelsen put forward the

concepts of hierarchy, of competence, of the relativity of the distinction
between form and content, of the creation and application of law, and of the
dissolution of the traditional notion of the sources of law. Contemporary
theories of the normative system are doubtlessly built, critically, on the
foundations set out by Kelsen. The Kelsenian contribution has been an
approach that contemporary general theory of law has continued and
improved upon.

Unity
Kelsen must endow with unity the various elements that make up the legal
order. What is it that gives unity to legal knowledge? Kelsen's answer is
Kantian. The question about the foundation of the validity of the norms
must have a terminal point. One possible answer is the following: A social
fact becomes a value. This solution is, however, unsatisfactory for Kelsen,
for it implies a bridge between facts and values, but that in turn represents
the naturalistic fallacy. There is no possible bridge that links Sein and Sollen.
Kelsen rejects the positions familiar from those positivists who transformed
facts into values. He thinks that to accept this form of mediation would be
to lapse into methodological syncretism, thereby abandoning the ideal of
methodological purity. In contemporary legal theory, Hart's theory might be
considered as a clear example of the move from fact-recognition to a norm,
however obscure the transition may be. This is the way Kelsen understood it
in his argument with Hart (see Hart 1983, 287ff., 306).8
Another possible solution would be a natural law foundation. This is a
familiar position. A superior authority is stated or a superior norm is seen as
founding the validity of positive law. Kelsen, however, cannot appeal to a
norm from a rational or divine authority for that would mean giving up the
ideal of purity: The role of the theory is not to justify but to describe and
natural law theory purports to justify a given authority.
8
When Hart (1983, 306) describes his visit to Kelsen in Berkeley in 1961 he argues that Kelsen
``would say that [the conflict between law and morals] is possible only if he abandons the point
of view of ``normativity'' for that of ``factuality'' and looks upon law not as valid norms but as
facts, as a psychologist or sociologist would.'' See also Hart 1961, 245ff.; 1970, 194ff.

# Blackwell Publishers Ltd 2000.

 For Kelsen 211

The Kelsenian solution marks a third way by means of a key criterion: the
formulation of a hypothetical basic norm.9 The function of this norm is to
be a logico-transcendental condition of legal experience. The role of this
condition is similar to the one played by space and time in the Critique of
Pure Reason. Space plays the role of the condition of experience. Outside this
condition, there exists neither a possibility of experience nor the possibility
of knowledge. In the case of legal science, the basic norm is the condition of
legal experience. If this presupposition is not made, it is not possible to
know the law from the point of view of a set of norms. In the second place,
the basic norm must be a norm, for, if it were fact, it would mark a lapse into
the naturalist fallacy, since values would then be deduced from facts. The
normative character of the basic norm is demanded by Kelsen's method,
which requires a complete separation between Sein and Sollen. In the third
place, the basic norm is hypothetical, for it supposes that it is necessary to
make this presupposition only if we want to know the law. It is not a
positive norm but a presupposition of legal science. The unity of the theory
is guaranteed by the unity of the law through the mechanism of the basic
norm. The validity of every positive norm is traceable back to the basic norm
through the chain of empowerment. The theory of the hypothetical basic
norm has been one of Kelsen's most criticised theses. The main arguments
that turn up here are these:
1. The basic norm is a condition of legal experience. This, however, is less
than obvious, for, when one presupposes the basic norm, this must be in a
legal system that is efficacious in a general way. No one would presuppose
the basic norm of the Spanish positive law of Franco's time from the
reference point of the government in exile; rather, it must be presupposed
vis-aÁ-vis the power at hand. This means that it is not a condition of
experience, but that it is presupposed in accordance with empirical criteria.
Some have suggested that if this is so, then the basic norm is in truth
superfluous and is maintained, if at all, only with an eye to ideological
reasons that purport to justify obedience to the law (cf. Ross 1969; Raz 1979).
2. The separation between Sein und Sollen is not as absolute as the
methodology proclaims, for a merging takes place in the basic norm, whose
role is to turn the fact of power into a value. This means that Kelsen has not
always been faithful to the proposed method. Ironically, had he been
faithful to it, his description of positive law would have been very defective.
3. Who presupposes the basic norm? Apparently it must be the science of
law or, as Kelsen himself says, legal thought. But the role of legal thought,
that is, of legal science, is not to prescribe but to describe. Norms are dic-
tated by the authorities and not by legal scientists who claim to be describ-
ing the norms. Here again, there appears to be inconsistency in the project of
methodological purity.
9
As Paulson (1996b) has noted the idea of a basic norm was defended by Walter Jellinek, in
1931, and Kelsen takes it over from Jellinek.

# Blackwell Publishers Ltd 2000.

212 Albert Calsamiglia

4. The role of the basic norm is to validate, from a hypothetical point of

view, what is to be done from a legal point of view; and this doctrine thus
understood, can be considered as a theoretical instrument of legitimation of
any positive law, even if it is independent of every ideology. But Kelsen's
argument is hypothetical, and that weakens its prescriptive force.
It is impossible to defend, today, the theory of the basic norm, but if we
are to look for a criterion of identification of the legal system, we have to
analyse the key norms or key rules of recognition or as in Bulygin's case,
conceptual rules in contemporary theories of law. I think that the present
solution is not the correct one, but the problem was very well posed at the
time and very well resolved with the conceptual means at hand. If Kelsen
has become a classical thinker, it is because his work is deemed to have
permanent value and his way of tackling problems is still illustrative even
though, happily, more defensible proposals have been developed by the
general theory of law, which is to say that the theory is alive, that it moves
on and progresses.

6. Consideration of Kelsen's Thought

The Pure Theory of Law is the starting point for the contemporary general
theory of law. It is Kelsen's most important work, and all the ancillary
interests and contributions are aimed at reinforcing the point of view of
the Pure Theory of Law. His anthropological research on the principle of
retribution, his thoughts on justice or natural law or his contributions to the
theory of democracy are all foci that reflect the core of his legal theory.
Kelsen is important because he has been able to construct a method that
makes it possible to establish the object quite clearly. He has settled the main
foundations in order to build a descriptive theory of law, qua set of norms.
He has revealed the dynamic structure of positive legal systems and he has
established the foundations for distinguishing between very different types
of norms. He stressed the importance of the procedural norms that tradi-
tional theory had qualified as ``adjectival law'' and, in Kelsen, procedure
acquired a role of first importance, the same role that the norms of
competence play in present day theory. He also introduced into legal theory
the ideals of methodological purity, of rigour, objectivity and political
neutrality.
The Pure Theory of Law has built with rigour the basic categories of legal
thought, while rejecting the dualisms that are characteristic of natural law
theory and nineteenth-century positivism. Concepts such as sanction,
responsibility, legal subject, objective and subjective law, public and private
law, are all crucial to the general theory of present day law, and the starting
point is to be found in Kelsen.
Kelsen is a classical thinker when one asks what the law is, what its struc-
ture comes to, how the relationship between norms is to be characterised.
# Blackwell Publishers Ltd 2000.
 For Kelsen 213

Kelsen assumes that the scientist is an observer who describes the norms that
belong to the legal system, Kelsen provides the key to identifying these
norms, to describing them by means of propositions that are either true or
false.
Of course, many Kelsenian ideas have been criticised, in some cases in a
harsh and destructive way, but most of the problems that Kelsen posed are
present in current thought, and the development of the general theory of law
in the last fifty years has been of unusual importance. Alf Ross, who was
Kelsen's disciple in the mid 1920's, made an important contribution to the
theory of law from the point of view of the realism, the philosophy of
ordinary language was introduced by Hart, and logic was introduced by
AlchourroÂn and Bulygin. If we accept the idea that an author is to be judged
by the problems and discussions that he generates, it could be said that Kelsen
is the great classic of the twentieth century. Nevertheless, the very success of
his theory has given way to stagnation where certain other questions of legal
knowledge are concerned. His interest in exactitude and his formalistic
Kantian motive of purity made him consider any problem related to will
irrational in nature. His criticism of Kant on practical reason consists, in effect,
in saying that Kant should simply forget about reason and give will its proper
place in the fields of ethics and jurisprudence.10 And it is true that Kelsen
condemned, as irrational, everything that had to do with will and action. For
Kelsen reason is the only desideratum and, of course, it is theoretical.
I think that jurists are concerned not only with having tools to identify the
law, but also with the development of a theory that promises right answers
to the problems they encounter. The problem that jurists normally have to
face is not what law is like but what one has to do. Jurists need prescriptive
theories to solve constitutional cases, that is, hard cases. Kelsen may not be
very helpful here, for the question in his frame of reference always arises:
Why are we proposing to move from a description to a prescription? We
should explain the normativity of the law. And, from the Kelsenian
perspective, this is not a problem that science can solve. The Pure Theory of
Law is a theoretical tool that is useful as an answer to the need for
description of the law. This conceptual tool is, however, inadequate to solve
practical problems. When an author is taken out of context, he is very often
misinterpreted. No doubt that Kelsen has been misinterpreted.
Kelsen's scarce influence on American Jurisprudence is probably due,
above all, to the fact that his theory cannot be used to provide criteria for
solving practical problems. American pragmatism has led to a conception of
theory as a conceptual tool that has a justification because it is useful to
provide arguments and practical solutions.
10
In Critique of Practical Reason, Kant is not concerned with the conditions that make ethics and
jurisprudence possible as sciences, but he tries to establish a set of absolute and immutable
principles useful to guide action. Kelsen (1945b, 445) is very critical of Kant on practical reason
and legal theory, dismissing Kant as a natural law theorist.

# Blackwell Publishers Ltd 2000.

214 Albert Calsamiglia

I think that the limits marked by Kelsenian thought are still present in
discussions on legal methodology. The contemporary approaches of legal
thought are more concerned with solving practical problems, with acquiring
methods of argument and with getting closer to political philosophy, more a
matter then, of justifying decisions than of describing norms. It is the great
transformation of the twentieth century, and it reflects the inability of many
earlier legal institutions to meet present day challenges, which require
deeper reflection on the rules and extra imagination for the sake of criteria
that are adequate to the solution of the main current problems.
Insofar as the theory is more concerned with practical problems, this is a
factor affecting contemporary legal thought. The legal theory that prescribes
will be far more important than one that merely describes, for the prescrip-
tive theory speaks to a set of needs that the old descriptive theories cannot
address at all. If, however, a descriptive theory of law is to be constructed,
the guiding star will be the old Pure Theory of Law. This is why we have to
go on reading Kelsen.

Pompeu Fabra University

Passeig de Circumvallacio 8
Barcelona 08003
E-mail: calsamiglia-albert@dret.upf.es

References
AlchourroÂn, Carlos E., and Eugenio Bulygin. 1971. Normative Systems. Vienna:
Springer.
Bulygin, Eugenio. 1991. Kant y la filosofõÂa del derecho contemporaÂnea. In Carlos E.
AlchourroÂn and Eugenio Bulygin, AnaÂlisis loÂgico y derecho. Madrid: Centro de
estudios constitucionales.
Gerber, Carl F. von. 1852. U È ber O
È ffentliche Rechte. TuÈbingen: Laupp & Siebeck.
ÐÐÐ. 1969. GrundzuÈge eines Systems des Deutschen Staatsrechts. Aalen: Scientia.
Hart, Herbert. 1961. The Concept of Law. Oxford: Clarendon.
ÐÐÐ. 1970. Kelsen's Doctrine of the Unity of Law. In Ethics and Social Justice. Ed.
Howard E. Kiefer and Milton K. Munitz. Albany, N.Y.: State University Press.
ÐÐÐ. 1983. Kelsen Visited. In Herbert Hart, Essays in Jurisprudence and Philosophy.
Oxford: Clarendon.
Hartney, Michael. 1991. Introduction. In Hans Kelsen, General Theory of Norms.
Oxford: Clarendon.
Jellinek, Georg. 1900. Allgemeine Staatslehre. Berlin: Haring.
KaradgeÂ-Iskrow, Michael. 1936. La theÂorie du droit pure et la dogmatique juridique.
Revue Internationale de la TheÂorie du Droit 10.
Kelsen, Hans. 1925. Allgemeine Staatslehre. Berlin: Springer.
ÐÐÐ. 1945a. General Theory of Law and State. Cambridge, Mass.: Harvard University
Press.
ÐÐÐ. 1945b. Natural Law Doctrine and Legal Positivism. In Hans Kelsen, General
Theory of Law and State. Cambridge, Mass.: Harvard University Press.
ÐÐÐ. 1957. What is Justice?. Berkeley, Cal.: University of California Press.

# Blackwell Publishers Ltd 2000.

 For Kelsen 215

ÐÐÐ. 1962. Derogation. In Essays in Jurisprudence in Honour of Roscoe Pound. Ed.

Ralph. A Newman. Indianapolis, Ind.: Merrill.
ÐÐÐ. 1965. Recht und Logik. Neues Forum 12.
ÐÐÐ. 1967. Pure Theory of Law. Trans. Max Knight. Berkeley, Cal.: University of
California Press. (1st ed. in German 1960.)
ÐÐÐ. 1991. General Theory of Norms. Oxford: Clarendon. (1st ed. in German 1979.)
ÐÐÐ. 1992. Introduction to the Problems of Legal Theory. Trans. Bonnie Litschewski
Paulson and Stanley L. Paulson. Oxford: Clarendon.
Legaz, Luis. 1933. Kelsen. Estudio crõÂtico de la TeorõÂa Pura del Derecho y del Estado de la
escuela de Viena. Barcelona: Bosch.
ÐÐÐ. 1958. L'influence de Kelsen dans les doctrines francËaise et espagnole
contemporaines. Annales de la Faculte de Droit de Toulouse 6.
Losano, Mario G. 1981. Forma e realtaÁ in Kelsen. Milan: ComunitaÁ.
MeÂtall, Rudolf A. 1976. Hans Kelsen. Vida y Obra. Mexico City: UNAM.
Paulson, Stanley L. 1988. Die Rezeption Kelsens in Amerika. In Reine Rechtslehre im
Spiegel ihrer Fortsetzer und Kritiker. Ed. Ota Weinberger and Werner Krawietz.
Vienna: Springer.
ÐÐÐ. 1990. Toward a Periodization of the Pure Theory of Law. In Hans Kelsen's
Legal Theory. Ed. Letizia Gianformaggio. Turin: Giappichelli.
ÐÐÐ. 1992. The Neo-Kantian Dimension of Kelsen's Pure Theory of Law. Oxford
Journal of Legal Studies 12.
ÐÐÐ. 1996a. Hans Kelsen Earliest Legal Theory. Critical Constructivism. The
Modern Law Review 59.
ÐÐÐ. 1996b. On the Early Development of the Grundnorm. In Law, Life and the
Images of Man. Festschrift for Jan M. Broekman. Ed. Frank Fleerackers, Evert van
Leeuwen and Bert van Roermund. Berlin: Duncker & Humblot.
Raz, Joseph. 1979. Kelsen's Theory of the Basic Norm. In Joseph Raz, The Authority of
Law. Oxford: Clarendon.
Recasens Siches, Luis. 1929. Direcciones contemporaÂneas del pensamiento jurõÂdico. La
filosofia del derecho en el siglo XX. Mexico City: Editora Nacional.
Ross, Alf. 1969. El concepto de validez y otros ensayos. Buenos Aires: CEAM.

# Blackwell Publishers Ltd 2000.