276 Pure Theory of Law

Kelsen 277
CONCLUSION
disciplines. The real science of law. of course, is lost in such a process. 27
Of Kelsen, Laski famouslY remarked th" . The Pure Theory of Law seeks to define clearly its objects of knowledge in these
the pure thaory to b - at granted Its postulates I believe two directions in which its autonomy has been most endangered by the prevailing
. ... e unanswerable but .t b . '. syncretism of methods. Law is a social phenomenon. Society. however. is some-
lOgIC not in life" 21 T ... 1 S su stance IS an exerCIse m
, . 0 some extent as we ha h h' thing wholly different from nature. since an entirely different association of ele-
this dictum but it certain I d I' ve sown, t ere IS truth in ments. If legal science is not to disappear into natural science. then law must be
of learning: searching a~l ~~: :~~tha~justice t? the impr~ssive display distinguished in the plainest possible manner from nature. The difficulty about
whole field of law which ch~ra t.· sKtnl m~ I~SI!Sh.ts rangmg over the
k such a distinction is that law. or what is generally called law, belongs with at least
C ense e sen s JunstIc output. 22 a part of its being to nature and seems to have a thoroughly natural existence. If,
for instance, we analyse any condition of things such as is called law- a parlia-
mentary ruling, a judicial sentence, a legal process, a delict-we can distinguish
H.KELSEN two elements. The one is a sensible act in time and place, an external process,
The Pure Theory of Law generally a human behavior; the other is a significance attached to or immanent in
this act or process. a specific meaning. People meet together in a hall, make
(1934-1935)23
speeches, some rise from their seats, others remain seated; that is the external
process. Its meaning: that a law has been passed. A man, clothed in a gown,
I speaks certain words from an elevated position to a person standing in front of
him. This external process means a judicial sentence. One merchant writes to
The Pure Theory of Law is a theory of ositiv I . . another a letter with a certain content; the other sends a return letter. This means
concerned with the accurate defin't' p f' e aw. As a theory It IS exclusivelv that have concluded a contract. Someone, by some action or other, brings about
answer the question. What is the I I~~n 0 Its sUbJect~matter. It endeavours t~ the death of another. This means. legally. murder. ...
It is a science 25 and' not a politicsa~i la~ not th e questIOn, What ought it to be?24 These external circumstances, since they are sensible, temporospatial events,
That ~ll this is described as a "pure" t h e o r . . . are in every case a piece of nature and as such causally determined. But as
solely wIth that part of knOWledge which d~tf I~w means that It IS concerned elements of the system nature. they are not objects of specifically juristic
knowledge everything which does n o t t' I s wIth law, excludmg from such knowledge. are. indeed, not legal matter at all. That which makes the process into
That is, it endeavours to free the oc . s nfclt y belong to the subject-matter law. a legal (or illegal) act is not its factuality. not its natural. causal existence. but the
. f ~ lence 0 aw from II ~ . I
Its undamental methodological princi Ie 26 I . a orelgn e e.ments. This is
a glance at the traditional science of t '. t would seem a self-evIdent one. Yet
objective significance which is bound up with it. its meaning. Its characteristically
legal meaning it receives from a norm whose content refers to it. The norm
developments shows plainly how far re~~~dt: nmeteenth ~nd twentieth century functions as a schema of meaning. It itself is born of a legal act which in its turn
sCIence was. Jurisprudence. in a wh II .r?m the r~qUlrement of punty that receives its meaning from another norm. That a certain condition of fact is the
psy~hol~gy and biology, with ethics a~lt~:I~tIcal fashIOn, was mixed up with execution of a death sentence and not a murder, this quality, which is not per-
SOCIal sCIence into whose provinc " d gy. Th~re IS to-day hardly a single ceptible to the senses. is arrived at only by a mental process: by confronting the
thinking, indeed, to enhance its :J~~lt1ru te~ce ilbeels Itself un.fitte~ to enter, even act with the penal statute book and penal administration. That the above-men-
I c s a us y such conjunctIon with other tioned correspondence meant the conclusion of a contract resulted solely from the
fact that this circumstance fell under certain rulings in the civil statute book. That
an assembly of persons is a parliament and that the result of their activities is a
law is only to say that the whole condition of fact corresponds to definite oc-
currence coincides with the content of some norm which is presupposed as valid.
In defining the law as norm, and in restricting legal science (whose function is
different from that of the legislative and executive organs) to knowledge of norms,
we at the same time delimit law from nature and the science of law. as a normative
operated according to such norms." And he adds" . . science, from all other sciences which aim at explaining causal, natural processes.
21
name of positive law". appallIng thmgs have been done in the
07 Grammar of Politics (4th ed.) p . In particular. we delimit it from one science which sets itself the task of examining
-- On dif!erent phases of Kelse~'s·:~rk. see S. Paulson i . . the causes and effects of these natural processes which. receiving their designation
Kelsen s Legal Theory (1990) p II S· I n (ed.) L. Glanformaaglo Hans
~: [From vols 50 and 51 L.Q.R:]· . ee a so S. Paulson (1992) 12 Ox. J. L. S~udi~s 265.
27 [The impossibility of excluding all considerations of values or political ideology from the
O' [Cf Austm. ante, 245.J
structure of law, however formalised, or indeed from any theory of jurisprudence, has
;; [[~n Kelsen's use of the word "science" see ante I' J been strenuously urged by Kelsen's critics. For an analysis of the implicit valuation
orne supporters of Kelsen argue for h .'.'" . elements and factual assumptions which are allegedly to be found within Kelsen's Pure
ground that his theory consists 0 - t e .:clentlfic character of hIS approach on the
theory is therefore scientific becau I generahoaltlOns based on Jundlcal experience. The Theory, see Julius Cohen. "The Political Element in Legal Theory: A Look at Kelsen's
. dgments, in common with all thse . emplnca Pure Theory" (1978) 88 Yale L.J. I. Cohen concludes that "Kelsen has fashioned a
JU . ' and "pure" because I't d'Isregard S value-
Dirillo (1955), pp. 46.48) But th·. ~ ~~Iences. (~ee, e.g. N. BobblO. Teoria Generale del special pair of lenses through which the detached observer is invited to see what purport
to be the structural elements and framework of any legal order. The picture received by
to the physical sciences,' and in ~~: e~~~~~a~o::e:s less applIcable to the social than this observer is distorted, however, because the viewing lenses are so constructed as to
science of law should not deal with actual values aot seem bdeyond questIOn why the block from vision one of the theory's essential structural components-the valuational
values.J . s oppose at any rate to a priori
element" (p. 35). Cf. ante. 43, 50.J. Would Kelsen have been equally critical of the "law
and .•.. movement of to-day"? On this see E. Rubin (1997}Wiseonsin L.R. 521.J
 278 Pure Theory of Law
Kelsen 279
from legal norms, appear as le<>al acts 28 If h . .
sociology of law, we shall mak: no obi~ctionsu~ei~~~U%al~ecalled. socIOlogy, or be. And thereby it says nothing as to the value, the moral or politic,al value of the
of ItS value or its prospects. This 0~1 . . .. we say anythmg here relationship. The Ought remains a pure a priori category for the comprehension
knowledge has nothing to do with the ~~~ c~rtam, that such legal-socIOlogical of the empirical legal material 30 In this respect it is indispensable if we are to
deals only with certain processes without ref:;n% ~het~aw a~.speC!fic contents. It grasp at all the specific fashion in which positive law connects circumstances with
assumed norms. It relates the circumstancas to b ~ elr r~atlOn to an~ valId or one another. For it is evident that this connexion is not that of cause and effect.
but to other circumstances, as causes to ~ e cxamm.e not to valId norms Punishment does not follow upon a delict as effect upon a cause. The legislator
legIslator is determined in constitutin<> th ffe~ts'd It mqUlres by what causes a relates the two circumstances in a fashion whollv different from causality. Wholly
effects his ordinances have had It . '=' . ese. an not other norms, and what different, yet a connexion as unshakeable as c~usality.31 For in the legal system
r . . mqUlres m what way ec . f
re IglOuS views actually influence the activities of the C ' t ;~omlc acts and the punishment follows always and invariably on the delict even when in fact, for
men make their behavior conform to the lav~ or not ~I s~ a~ orwhat motIves some reason or other, it fails of execution. Even though it does not so fail, it still
only a natural reality, a fact in the consciousness of r'h or ~~c 1 a:lkmqUlr y law IS does not stand to the delict in the relation of effect to cause. When we say: If there
subjects to the no Th I . 1 ose w 0 rna e, or of those is tort, then the consequence of tort (punishment) shall (i.e. ought to) follow, this
study? but 'certain ~~~~llelep:o~::::/;I~~~~~~~e'I~~hot properly th~ sUbje~t of this Ought, the category of law, indicates only the specific sense in which the legal
e
exammmg the physical or chemical processes' which ;~~~t~;~r :hhYhSlOloglst, condition and the legal consequence are held together in the legal rule. The
pany certam emotIOns do t IC accom- category has a purely formal character. Thereby it distinguishes itself in principle
emotions are not COl ' .es . no . compr~hend the emotions themselves. The from any transcendental notion ofJaw. It is applicable no matter what the content
Theory of Law as a npre~enslble m chemIcal or physiological terms. The Pure of the circumstances which it links together, no matter what the character of the
realities, not as' fact i~P~~~s~i~c~~~~~s~~~w~sconsid~rs~gal norms no~ as natural acts to which it gives the name of law. No social reality can be refused in-
facts only as the content of legal non~s th t mea~mg-L-ontents. And It consIders corporation in this legal category on account of its contentual structure....
Its problem is to discover the specific ' . aIls, on y as determmed by the norms. [Vol. 50, pp. 477-485]
Wh' '. prmClp es 0 f a sphere of meaning
ha~' tradi~i~~a~~eb~~~~~~~~~~a?t~\too liberate.law from that associati~n
which
IV
course to questi~n the requirement th~/la~s~~~~~~n WIth morals, This is not of
reqUIrement is self-evident. What is question:d is°sf ~or~, that IS, good. That
e
such, is a part of morals and that therefore ev I mp y t e vIew that law, as The law, or the legal order, is a system of legal norms. The first question we have
in some measure moral, . . ery aw, as law, IS m some sense and to answer, therefore, is this: What constitutes the unity in diversity ofJegal norms')
Why does a particular legal norm belong to a particular legal order? A multi-
plicity of norms constitutes a unity, a system, an order, when validity can be
II traced back to its final source in a single norm. This basic norm constitutes the
unity in diversity of all the norms which make up the system, That a norm belongs
r~~~e;~~~~~oih~~;a:f~m this element is the endeavour of the Pure Theory of
to a particular order is only to be determined by tracing back its validity to the
basic norm constituting the order. According to the nature of the basic norm, i.e.
that of the moral nOI~ anda:s::gl~~~~~st~~el~oncept of the legal completely from the sovereign principle of validity, we may distinguish two different kinds or
even of the moral law 29 It d th' w as a specIfic system mdependent orders, or normative systems. In the first such system the norms are valid by
tional theory, by defining the ~:~al ~o~~' t~ IS ;enerally the case wit~ the tradi- virtue of their content, which has a directly evident quality compelling recogni-
but as an hypothetical judgment ex re~si~: t e moral nor~, as a.n Imperative, tion. This contentual quality the norms receive by descent from a basic norm to
conditioning circumstance and a c ~'r d
a specIfic relatIOnshIp between a whose content their content is related as particular to universal. The norms of
comes the l~gal maxim--the funda~::U: ~otne Cots~quence. The legal norm be- morals are of this character. Thus the norms: Thou shalt not lie, Thou shalt not
law links a certain circumstance t a Ol~ 0 t e statute law. Just as natural deceive, Thou shalt keep thy promise, etc. derive from a basic norm of honesty.
links the legal condition to the la<>~ ~no:her a~ ca~lse to effect, so the legal rule From the basic norm: Thou shalt love thy fellow-men, we can derive the norms:
principle is causality' in the otCh'=' 'ton~equence.. n the one case the connecting
..' er I IS ImputatIOn The Pu Th . f L ~
;~~a~~g~ts ~~~c~~~r::sI~~ s~;~~~ :~d p~~uliar prin~ipl.e la~. ~~~re~siona~
of Its 30 [In Kelsen's jurisprudence the "ought" category is necessary in order ta comprehend the
nature runs: If A is then B must b ;~allty lPnnlclPle IS Nec~sslty. The law of empirical legal materiaL The Pure Theory, therefore, shows how a science of law is
, e. e ega ru e says: If A IS, then B ought to possible on the analogy of natural science. The propositions of the pure Theory, though
in the grammatical form of ought, are nonetheless descriptive (see L Stewart. "The Basic
28 [Thus though Kelsen would not d Norm as Fiction" (1980) Jur.Rev. 199, 204-205). This descriptive quality of the Pure
the minds ;fhuman beinas and" e~fu that legal rules may have an actual causal effect on Theory itself must not be confused with what Kelsen calls rules of law "in a descriptive
and not a J'uristic manne~r~ C" SOt a. ?e~7t t?h:1r behavlOUf, he regards this as a sociological sense," which are the legal rules formulated by the science of law. But the contention that
29. ,. • ~/· ([11 e. ",-)-_) 8.J
[For Kelsen s cunous contention that Ie I d . there are descriptive ought-sentences is far from clear. One could think that the de-
there is no collision between the tw _. h ga .an moral norms cmmot con/hct because scriptive ought is something like Hart's inverted commas use (The Language of i\Jorals
of positive law as a svstem of 'r~ t e JUllst and the moralIst SImply Ignore morality (1952» (a mention, not a use of the term "aught") but Kelsen rejects this (see Golding
Kelsen's main ar"ume~ va I norms. see The Pure Theory of Law, pp. 374-75. (1961) 47 A.R.S.P.). See also Hart, "Kelsen Visited" in Essm's In Jurisprudence and
and a moral .10. t seems to be that ta allow the co-existence of a valid legal rule Philosophy (1983). .
demanstrated ~~nc~PIII~ whIch cohn/hct wauld mvolve a logical impossibility. Hart has 31 [This statement has been very much criticised. Thus Olivecrona says of it ironically: "'A
. e ,a aCIes m t IS reasonmg: see "Kelsen Visited" in E. , '. .
lsprudence and Philosophy (1983), pp. 286, 301·308. For the view that Kels;~;':~~s:f:i:':U­ mystery it is and a mystery it will remain for ever" (Law as Fact (1939), p. 21). It \~ill be
loglcall;v sound see M. Detmold, The Unity of Law and Morality (l984),p. 54. Cf IS seen from what follows in this paragraph that kelsen is here involved in the language of
Kelsen s view as to the umty of mternatlOnal and municipal law, ante, 269.J . on Kantian metaphysics. A rather more acceptable account of the normative proposition
will be found in Kelsen's General Theory of Law and State (l946).J
 280 Pure Theory of Lmv
Thou shalt not injure they fellow, Thou shalt accompany him in adversity, etc.
The question as to what, III a particular system of morals, is the basic norm, is not
h:re under consideration. What is important is to recognize that the many norms
ot a moral system and already contained in its basic norm, exactly as particulars
III a umversal, and that all the individual norms can be derived from the basic
norm by an operation of thought, namely, by deduction from universal to par-
ticular.
With legal norms the case is different. These are not valid bv virtue of their
content. Any content whatsoever can be legal; there is no human~ behavior which
could not function as the content of a legal norm. A norm becomes a legal norm
only because it has been constituted in a particular fashion, born of ; definite
procedure and a definite rule. Law is valid only as positive law, that is, statute
(constituted) law. Theref"re the basic norm of law can only be the fundamental
rule, ~~cording to which the legal norms are to be produced; it is the fundamental
condItIon of law-making. The individual norms of the legal svstem are not to be
derived from the basic norm by a process of logical d;duction. Thev must be
constituted by an act of will, not deduced by an act of thought. If we tr~ce back a
slllgle legal norm to its source in the basic norm, we do so bv showino- that the
procedure by which it was set up conformed to the require~ents of"'the basic
norm. Thus, If we ask why a particular act of compulsion- the fact. for instance.
that one man has deprived an?ther of his freedom by imprisoning him-is an act
of law and belongs to a particular legal order, the answer is, that this act was
prescribed by a certain individual norm, a judicial decision. If we ask, further
why this individual norm is valid, the answer is, that it was constituted accordin~
to the penal statute book. Ifwe inquire as to the validity of the penal statute book:
we are confronted by the State's constitution, which has prescribed rules and
procedure for the creation of the penal statute book by a competent authority. If,
further, we .ask as to the vahdlty of the constitution, on which repose all the laws
and act whIch they have sanctIOned, we come probably to a still older constitu-
tIOnal and ~nally to an historically original one, set up by some single usurper or
by som~ kmd of corporate body. It is the fundamental presupposition of our
recogmtlOn of the legal order founded on this constitution that that which the
original authors declared to be their will should be regarded as valid norm.
Compulsion is to be exercised ac~ording to the method and conditions prescribed
by the first constitutIOnal authonty, or Its delegated power. This is the schematic
formulation of the basic norm of a legal order ...
(a) This analysis of the function of the basic norm brings to light also a special
pecuhanty of the law~the law regulates its own growth and its own making. The
unity of the legal order. is a l.aw-making unity. The law is not a system of ;qual,
slde-by-slde norms: It IS a hIerarchy with different layers. Its formal pattern is
roughly the following.
At the highest point of the individual State's legal order is the constitution-in
the matenal sense-the essential function of which is to determine the organs and
procedure. for the setting up of general law, to determine legislation. The next
~tage conslst~ of the general norms, set up by legislation, whose function, in turn,
IS. to determme not only the organs and procedure (Courts and administrative
tnbunals) for the individual norms, but also the content of the latter. The general
norm, which links an abstract condition of fact to an equally abstract con-
sequence, if it is to have any meaning, needs to be individualized. It must be
known definitely whether there is present in col1creto 32 a condition of fact which
32 [Hence the phrase, the "concretisation" of law. Ebenstein claims that this enables Kelsen
to overcome "traditional weaknesses of both continental and Anglo-American legal
theories, and to perhaps for the first time, the structure of a unified
that integrates phenomena of
617. 644). But
Kelsen 281
the general norm in abstracto regulates, and for this concrete case a-;concrete act
of compulsion must be prescribed and carried out --this also according to the
abstract general norm. The agent in this is the judicial decision, the judicial power.
The judicial power is by no means of a purely declaratory nature, such as the
terms "laying down" and "ascertaining" the law suggest, as if in the statute, that
is, the general norm, the law were already prepared and complete, simply waiting
for the Courts to find it. The function of laying down the law is a properly
constitutive one, it is a making of law in the real sense of the word. The re-
lationship between the concrete condition of fact (and the discovery of its cor-
respondence with the abstract condition) and the concrete legal consequence is
specifically set up by the judicial decision. Just as at the general stage condition
and consequence are joined by the statute, so at the individual stage they are
joined by the judicial decision. The judicial decision is itself an individual legal
norm. 33 It is the individualization or concretization of the general, abstract norm,
the individual stage of the law-making process. This conclusion is hidden only
from those who see in the general norm the repository of all law, wrongly iden-
tifying law with statute.
(b) Administration, no less than judicial decision, can be shown to be con-
cretization of statute law. Indeed, a considerable part of that which we normally
call administration is not to be distinguished functionallv at all from that which
we call judicial decision or finding of the Courts,34 in s~ far as public policy is
pursued' technically, in both cases, in an identical fashion, namely, achieving the
desired condition of affairs by attaching to its contradictory an act of compulsion
in short, by making the desired social behavior legally obligatory. It makes no
essential difference whether honour is protected by the assessment of damages in
Court, or whether safety in the streets is ensured by the punishment of reck-
lessness in administrative tribunals. To speak in the one case of the judiciary and
in the other of the administration is to emphasize only a technical difference, the
purely historical position of the Judge, namely, his independence-a character-
istic generally, though by no means always, lacking to the administrative organ.
Essential identity, however, is evident in this, that in each case public policy is
realized indirectly. A functional distinction between judiciary and administration
is present only when the State organ realizes the purposes of the State directly, as,
for instance, when it itself builds the schools, drives the trains, administers hos-
pitals. This kind of direct administration is indeed essentially different from ju-
dicial administration which is by its nature committed to an indirect pursuit of its,
that is to say the State's, ends. If administration and judiciary, then, are to rank as
fundamentally different, it can only be on the basis of the direct character of the
former. This is to say that a correct view of the system of legal functions must
draw a different line of demarcation from the customary one, which, legislation
33 [The ascertainment of the facts by the tribunal is part of the constitutive process by which
the norm is created, for in the world oflaw there are no "absolute" facts, but only facts as
ascertained by a competent organ: see H. Kelsen, General Theory of Law and State, pp.
135-136.]
34 [This statement is criticised by E. Bodenheimer (see Jurisprudence, p. 240) on the ground
that administration involves the discretionary exercise of power, whereas law is a lim-
itation upon the exercise of such power. But this criticism seems misconceived, in so far as
it ignores the further point in Kelsen's analysis, that such administrative exercise of
power may itself by referable to higher norms in the legal hierarchy, and which may,
therefore, control the norms on a lower level. It is in this way that one legal norm may
operate as a limitation upon another such norm. There is nothing in Kelsen's view,
therefore, which prevents the administrative activity of the Government taking place
within the framework of rules or legal standards, if the legal system in fact provides such
operative framework. This may be done either by means of the ordinary courts, or by
means of a special administrative court or tribunal, such as the French COllse!! d'Etat, or
bymeans<of an official such as the Scandinavian Ombudsman Or the British.]
 282 Pure Theory of Law
Ke/sen 283
apart, breaks up the legal apparatus into a number of relatively isolated grou f
tnbunals whIch exercIse for the most part similar functions Th . ps 0 of coercion as sanctions whereas the other does not. And these sanctions are only
the dIfference in function, the substitution for judiciary a~d a~~~~~:~;a~:ew of coercive measures in the sense that certain possessions are taken from the in-
dlrectt and mlfdlrect administration, would not be without its effects on the °onrgoaf dividuals in question against their will, if necessary by the employment of physical
mza IOn Itse . ~ - force.
(C~ In ~ertain spheres of law, as for instance in civil law, the concretization of In this sense, the law is a coercive order.
~he oenelal norms does not f?lIow directly from the act of an official State in- If the social orders, so extraordinarily different in their tenors, which have
'trumenht, such as IS the JudICIal decision. In the case of the civil law whl'ch th prevailed at different times and among the most different peoples, are called legal
C ourts ave to applv th " d ,e orders, it might be supposed that one is using an expression almost devoid of
I I (J . ~ '. ere IS mterpose between the statute and the decision the
eoa transactIOn, whIch WIth respect to the condition' a . , meaning. What could the so-called law of ancient Babylonians have in common
mdlVldualizing function Dire db' m o cIrcumstance, has an with the law that prevails today in the United States? What could the social order
for their mutual b h" 35 cte y the statute, the partIes set up concrete norms of a negro tribe under the leadership of a despotic chieftain--an order likewise
fact to be determ\:~IO~,. an offence agamst which constitutes the condition of called "Iaw"-- have in common with the constitution of the Swiss Republic? Yet
l
decision attaches th e Y the JudICIal deCISIOn. To tIllS condition the judicial there is a common element, that fully justifies this terminology, and enables the
pena I consequence.
th:;~~~~~:u~~age of t~s law-making process, which began with the formation of word "law" to appear as the expression of a concept with a socially highly sig-
nificant meaning. For the word refers to that specific social technique of a
on, IS t e carrymg out of the compulsive act the penal con
sequence. . . . , - coercive order which, despite the vast differences existing between the law of
[Vol. 51, pp. 517-522] ancient Babylon and that of the United States of today, between the law of the
Ashantis in West Africa and that of the Swiss in Europe, is yet essentially the
H.KELSEN same for all these peoples differing so much in time, in place, and in culture: the
General Theory of Law and State social technique which consists in bringing about the desired social conduct of
(1946) men through the threat of a measure of coercion which is to be applied in case of
contrary conduct. What the social conditions are that necessitate this technique, is
an important sociological question. I do not know whether we can answer it
Law as a coercive order satisfactorily. Neither did I know whether it is possible for mankind to emanci-
pate itself totally from this social technique. But if the social order should in the
T.he evil appli~d to the. vio!ator of the order when the sanction is sociall or a - future no longer have the character of a coercive order, if society should exist
mzed consIsts III a depnvatlOn of po:~essions--life health freed y oa without "law," then the difference between this society of the future and that of
AhsartahceteProsfsessions are tfaken from him against his will.' this s~~t~~:~tse~~~ the present day would be immeasurably greater than the difference between the
C o a measure 0 coercion Th' d . . United States and ancient Babylon, or Switzerland and the Ashanti tribe.
sanction physical force must be a~pli:~. ~~~sni~t ~~:~;~:to~~arrYin~ out t~e [pp. 18-19]
~ncountered in applying the sanction. This is only excepti~nallyt~er~:~~ta~~ee::
hekau:ho~l~y apPblymg the sanction possesses adequate power. A social order that
see s 0 rmg a out the deSIred behavior of individuals 36 bv th t f
:~~~~e~~;:f~[ ~oe~~~O~!:hcalled a coercfive ord~r. Such it is beca~s:~~Ct:::::e~s
THE LEGAL NORM

. . I measures 0 coerCIOn, decrees such measur f

~~=~c~~~. ~s such I~pres~nts a contrast to all other possible social orders--~~o~e Legal norm and rule of lalv in a descriptive sense

~hat ena~: :or:~a~io~~ta~raft~~I~i~~iS~:~~: t~~~~~c~~o~fd~~~te~~~l~~IJo~ho:~
~~trast ~o.the orders tha.t enact coercive measures as sanctions, the efficacy ofthe
~o ~f:ti~;:sa~~~ :i;~~~:ofin ~ut'~hn voluntary o?edience. Yet this contrast is not
techni ue '• rs S1 0 t appea~. ThIS follows from the fact that the
the te~hni~~;e~;~~d~:e~tt~~~il~~~Oa:~~~~ecthmotivahtion, has its place between
. d . . ug pums ment, as a techmque of
coerCIOn, an the techmque of dIrect motivation the t h .
~b~d~ence. olu~ary obedience is itself a form of m'otivati~~ ~~~~~so~f:~~r~~~~
y products of the law-making procedure, and they may be linguistically expressed in
n ence IS not reedom, but it is coercion in the psychologi~al sens~. If coerciv~
d
or ers are con~rasted Wlt~ those that have no coercive character. that rest on
voluntary obedIence, thIS IS possible only in the sense that one provides measures
35 [Thus a contract is a legal norm' . d"d I' .
'6 w
hIC h"It IS ma de.] ' an III IVI ua IsatlOn of the more ~general norm under
., ~~e1~~7e~a~.shifted his ground in The Pure Theory alLaH' (see p. 10). As Raz (op. cit., p.
~) ,. the mtentlOn to affect someone's behaviour is replaced bv the intention to
create. a norm ... [which] presupposes the existence of norms and co~ventionalised ac-
tlV111e" and cannot serve as their ultimate explanation," Hence, Raz argues "Kelsen's
doctnne applIes only to legIslatIOn wIthm the framework of normative systems".}
If "coercion" in the sense here defined is an essential element of law, then the
norms which form a legal order must be norms stipulating a coercive act, i.e. a
sanction. In particular, the general norms must be norms in which a certain
sanction is made dependent upon certain conditions, this dependence being ex-
pressed by the concept of "ought." This does not mean that the law-making
organs necessarily have to give the norms the form of such hypothetical "ought"
statements. The different elements of a norm may be contained in very different
very different ways. When the legislator forbids theft, he may, for instance, first
define the concept of theft in a number of sentences which form an article of a
statute, and then stipulate the sanction in another sentence, which may be part of
another article of the same statute or even part of an entirely different statute.
Often the latter sentence does not have the linguistic form of an imperative or an
"ought" sentence but the form of a prediction of a future event. The legislator
frequently makes use of the future tense, saying that a thief "will be" punished in
such and such a way. He then presupposes that the question as to who is a thief
has been answered somewhere else, in the same or in some other statute. The
phrase "will be punished" does not imply the prediction of a future event-the
legislator is no prophet--but an "imperative" or a "command," these terms taken