cHAV $11 a CHAPTER IV. KELSEN’S PURE SCIENCE OF LAW* J. INTELLECTUAL BASIS AND SCOPE OF THE “PURE” SCIENCE OF LAW. $1. Backcrounn or THe Vienna Scroot, The fact that Hans Kelsen’s first exposition of his “pure science of law” was from a Chair at the University of Vienna in 1911, and that it came to full flower in the post-war conditions of Europe, is an important clue to understanding it. After the 1914 war most of the states of central and eastern Europe, some like Czechoslovakia’ and Poland newly created, the rest (including Austria) re-formed, adopted written constitutions, The attention of lawyers was thus directed to the idea ‘of a fundamental law as the basis of the legal system. The Austrian background was important also for other reasons. Professor Keleen formulated his theory exactly a century after the final pro- gation of the Austrian Civil Code, prepared between 1713 and referees work,and that of bis followers i vluminaun, There is a very full bibliography” in R. Pound, Outlines ‘of Lectures on Jurisprudence {iDHE) I13,inlaing tiles of expostions and viiques, ‘There evens mone. graph on the school; W. Ebenstcin, Die rechtsphilosophische Schule der reinen Rechislehre (1938) and a monographie bibliography in Metall, Bibliographie der einen Rechislehre (1934). “Recent shorter selected bibliographies. will be found in (1942) '55 Hare. L. Rev. 44 (cited infra); R. Pound, “Fifty Years of Jurisprudence” (1938) 31 Harv, L. Rev. 144, 44951n; H. Lauterpacht, work ‘ited: infra 104105n, ‘There is a great deal of reiteration in the Iterature, as might be expected from what, on the continent at least, was a novel protestant Even for advanced students the main ideas canbe drawn from: H, Kelsen, Allgemeine Staatslehre (1925) 23 Enzyklopadie der Rechts. und Staats. wwissenschaft; H. Kelson, Reine Rechtslehre (1934) ; H. Kelsen, Théorie Générale du Dro Intcrnationcl, 42 Hague Academy, Recueil des Cours 121, and in English, H. Keleen, “The Pare Theory of Law” (1934) 50 Law Q. Rev,’814, SI id. 517; H, Kelsen, “The Pure Theory of Law and Analytical Jurisprudence” (1942) 35 Harv, E. Rev, 44, For French and German critiques see the previous paragraph, and. for expositions and critiques in English ee J. Stone, Book Review (1934) AT Harv, Le Rev. 712, 125.26; C. Wilson, “The Basis of Kelson’s Theory of Law” (1934) 1 Politica 54, 2 id. (1935) ; A. E, Cohen, Recent Theories of Sovereignty (1937) 57-79; H, Lauterpacht, “Kelsen’s Pure Science of Law” in I. W. Jennings (ed.) Modern Theories of Low (1933) 105 (probably the best short exposition, Dut see infra §8 19M. as to its critical part) ; Mattern, Concepts of State Sovereignty and International Low (1926) 121-139; I, Husik, “The Legal Philosophy of Hane Keleen” (1938) 3 Jo. Soc, Phil. 297; H. Janzen, “Keleen's Theory of Law" (1937) 31 Am, Pol, Se, Rev. 205; J. Kunz, “The Vienna School of International Law” (1934) 1. WY. Uni. L, Q. Rev. 310; Stern, “Kelsen's Theory of International Law" (1936) 30 Am. Pol, Se. Rev. "736; Voegelin, “Kelsen’s Pure Theory of Taw" (1921) 42 Pol, Sei. Q. 268; Wilk, “Law and the State as Pure Ideas” (29m) 51 Intern, Jo, Ethics 158; J. W. Jones, Historical Introduction to the Theory of Law (1940) c.ix. 2 In. Crechoslovakia it is interesting te note there grew up a normative theory closely analogous to Professor Kelsen’s, yet quite independent of it. See ‘A, Prochazka, “Crechoslovak Philosophy of Law’ (1942) Czechoslovak Year Book of International Lave 89.2 KELSEN'S PURE SCIENCE OF LAW (CHV 53 1811? which was still in force in 1911. This code was mainly pre- pared at the height of natural law influence,‘ and, curiously enough, contemporancously with Blackstone’s work in England. It is inter- esting but not surprising, therefore, to find this analytical twentieth century continental jurist displaying a zealous hostility to natural law, entirely reminiscent of that of the nineteenth century English Bentham and Austin.’ This linkage by their relative time and place contexts is significant, despite the fact that Professor Kelsen bases his system on Kant’s theory of knowledge.’ As we move from Austin to Kelsen we cease to be suspended uncertainly twixt heaven and earth, and move confidently inte the heaven of a universalist theory of law as a logically independent system, The latter does not, like Austin, limit his aspirations for consistency to the law of modern developed societies, or that of England and Rome. It is of the essence“of his thought that it shall have universal validity. The other aspect of this is that his theory claims to be “pure”, that is, to be not. distorted by reference to the existential facts of particular legal systems, but based upon the inner “essence” or “epecificity” of law which distinguishes it from all other phenomena whatsoever. For he claims a philosophical basis for his universalist scheme. ; §2. Law ano THe SPHERE or THE NorManive, He starts from the sharp distinction between the sphere of the “is” and the sphere of the “ought to be” which was a main doctrine of Kant’s work on “the Practical reason”.’ The “is” sphere (das Sein, or the sphere of existence) is essentially that of the natural sciences like experimental physics, chemistry, biology, psychology, psychiatry and others. Here it is phenomena of existence, and the uniformities and correlations between them, which are brought under inquiry. Austin, it will be remembered, excluded the laws of such sciences from his definition on the ground that they were not imposed by a determinate human superior, nor addressed to rational beings, nor were they enforced hy a sanction. Professor Kelsen rejects them from his field on the deeper ground that such laws are essentially descriptive of the sequence of cause and effect in the universe of existence. There can he no infractions of the law of gravitation or of Boyle's law; if the law is not always observed it is not a true law. If the pull between any two masses does not conform to the Jaw of gravitation, or if the relation between the Pressure and the volume of a newly discovered gas does not + Initiated in 1713, with drafts in 1767 and 1787. 4 See infra Chapter ‘VI. ® See supra Chapter TL, § 2 and infra Chapter X, § 3. What is, surprising however, is the continental’ insularity which did not discover Austin’s work ull late in Tierary life, ‘The earliest Kelsenite awareness appears to be in A. Ross, Theorie der Rechisquellen (1928) 158. See supra Chapter Til, 1, © Another illustration of the tendency for men's answers to be’ determined by the problems confronting them, and only their mode of reaching the anawers by their eystem of thought. See’ supra Chapter II and generally injra Chapters XVI, ARV. " % folra Cue +A phrase of P. Tourtoulon’s, For some further remarks on the relation of Professor Kelsen’s thought to Kant’s philosophy, see. infra Chapters IX, § 2, XVII, $8 67.CHAIV §2) NORMATIVE AND OTHER SPHERES 93 conform to Boyle's law, the law must be discarded or modified. The scientist must seck a new hypothesis, Laws of the natural sciences then describe a relationship which exists. Since it exists it must exist. Insofar as the “law” fails accurately to describe it, it ceases to be a “law”. It follows that the examination of the operation of law in society, which Professor Kelsen terms “the sociology of law”, but which is more often termed sociological jurisprudence, is in this category. So far as he is concerned, therefore, it is to be re- garded as beyond the scope of the “pure science of law”. Now it is quite apparent that law in the lawyer’s sense is not of this descriptive “is” nature. We do not abandon the law forbidding larceny because it is often violated: indeed, we tend to think of the law only when it is violated. The lawyer's kind of law belongs to the category of the “ought to be”, of das Sollen, to the normative sphere rather than the descriptive sphere. A “law” of the natural sciences tells us that “when A is, then B is”, A law in the lawyer's sense tells us that when “A is, then B onght to be”. It may, therefore, remain valid whether in any particular case B follows or not, and everyone knows that often B does not follow. This normative character of law, its “oughtness”, is, according to Kelsen, one of the specific characteristics of law which permit us to assign it to its sphere. But there are also other bodies of rules which have this quality of oughtness. A rule of ethics, for instance, is a nor- mative rule and not a descriptive one, and it, too, remains valid even if broken. § 3. AmsoLuTe SEPARATION or THE REALMS of THE FacTuAL “Is”, THE Lecan “OucH1” ann THE Eruicat or Just “OucHt”. Whence does this quality of oughtness derive? Can we by observation of what is arrive at conclusions concerning what ought to be? Can “ought” laws be derived from “is” laws? Or in technical language, can we derive value-judgments from empirical observation? We shall later see that some writers on the theory of justice still adhere to the view that such derivation is possible, and those who hold such views are often termed positivists.? We shall also see that ia: sovial-poycholugical terms “ought” judgurents are derivable, and are actually derived every day, from the facts of actual human conduct.” What Professor Kelsen is discussing, however, is the tellectual demonstration of the validity of “ought” propositions, as distinet from a ‘psychological description of their origin. In these terms modern thought tends to agree with him that observed facts, in themselves, cannot dictate a judgment concerning what ought to be done about these facts." For he insists that only by an absolute ceparation of the spheres of the normative and the existential can the purity of the science of law in his sense be maintained, 0 infra Chapter XVI, This term is confus tenuoun elation to of *positive™ Pe 2 feat to reg different word thus avoiding. such difical’ generalisations mann, Legal Theory (1944) 12, 18 Infra Chapter XXV. 44 See infra Intro. to Part Il; but see Chapter XXV, §§ ff, 1g in the study of tin’s use W. Fried:om KELSEN'S PURE SCIENCE OF LAW (CH.IV 54 At this point it is essential to clarify an apparent ambiguity. This learned author, as we shall later see, strongly insists that the pure science of law can have nothing to say as to what the law ought to be; it is as separate from what we here term the “theory of justice” as it is from sociological jurisprudence. His “pure” science, like Austin’s jurisprudence, is not concerned with the question whether the law is good or bad, but exclusively with the question what is law? Yet how can he urge as against sociological jurispru- dence that law and his “pure science” of it are “normative”, and yet insist that his “pure science” has nothing to do with what the law ought to be? In large part the difficulty is verbal merely. While “oughtness” is an essential feature of law it is not a monopoly of law. There are other kinds of “oughtness”. Professor Kelsen’s “pure science” deals with the “ought” addressed by the law-as-i to those subject to it. There is also, however, the “ought” directed by the theory of justice to those who are concerned with the improvement of existing law and the development of new law. There are also the “oughts” of ethics, grammar, religion and aesthetics, This writer insists on the separation of legal normativeness from the ethicépolitical norma- tiveness of the theory of justice. His position, differently arrived at, is like that of Austin when he separated “jurisprudence” from “the science of legislation”, and the law strictly so-called from other rules of human conduct. . § 4. Source oF THE VaLwwiry or THE LecaL “OucHT”: THE Basic Norm. On this view, the source of the validity of legal norms can be simply stated. It is that ultimately the binding force of all such norms derives from the “basie norm” of the particular legal system. This statement, however, conceals all the difficult questions which we shall later discuss. Professor Kelsen excluded the possibility (§ 3) that norms (“ought” propositions) can be derived from facts (“is” propositions). If X ought to perform the terms of his contract with Y, it must be, he says, because some anterior norm laid down in effect that an agreement made under given conditions ought to be observed. That anterior norm in its turn is only valid because by some norm anterior to that, norms aid down by the authority concerned ought to be observed. All of these norms are stateable in the form: “If A is then B ought to be.” None of them are “is” propositions, The derivation of one from others has been “pure” in the sense of being free from all except logical elements. The test of “lawness” of any particular rule can, therefore, according to Kelsen, only be found within the system of legal norms itself. Eventually, however, a point must be reached when the validity of the norm in question cannot be traced to any precedent norm. In terms of present English law, for instance, we must even- tually reach the norm somewhat like the following: “What the King in Parliament has promulgated or authorised or permitted to be pro- mulgated as law ought to be observed.” This is an example of his Grundnorm, or “hasic? or “fundamental” legal norm. The differ-CH.IV §4) THE BASIC NORM 95 ence between different systems of legal norms (English, as opposed to American or Soviet) lies in their respective basic norms; and 60 does the difference between legal normative systems, and, for in- stance, ethical ones."* § 5, Nature an Onicin oF THE Basic Norm Irsexr. If all the norms of a system derive validity from the basic norm the nature and origin of that norm obviously becomes the crucial question, Whence then does the basic norm get its validity? The political scientist in answer might refer us to the electors, or a majority of them, or to public opinion. The psychologist might tell us of social-psychological sup- port, of behaviour-tendencies of submission, which stand behind the law; the sociologist of the organic or structural or institutional nature of social life. But what can the “pure” theorist of law, as Professor Kelsen claims to be, tell us about it? His answer, like that of Austin, is that this is a pre-legal or meta-legal question, in which a jurist as such is not concerned. Just as Austin’s sovereign in a particular society is a mere starting-point for his logical system, which you are free to accept or not accept, s0 Keleen would say that while he cannot demonstrate scientifically the validity of the basic norm of a parti- cular society, you are free to accept or (if you can find a better one) not accept it.* ‘The test for a suggested basic norm, for instance that above for English law, is not whether it is legally valid, For since the legal validity of any norm depends precisely on its derivation from the basic norm, to seck legal validity of the basic norm would involve the impossible operation of pulling oneself up by one’s own boot- straps. The basic norm is neither valid nor invalid; it is a “hypo- thesis” the usefulness of which will depend on the extent to which the norms of the legal system of the particular society can be de- rived from it. That the will of the Czar ought to be observed may have been a useful basic norm for Czarist Russia. It would not he a useful one for the Soviet Union or the Commonwealth of Australia. § 6. Discovery OF THE BASIC NORM A CONDITION PRECEDENT TO ANY AppLication oF Ke1sen’s THkory 10 any Lecat System, Since the discovery of the basic norm is in no way controlled by the pure theory itself, every application of the theory to a particular legal system leaves the choice of the basic norm, and therefore the content of that legal system, entirely at large. Within the limits of the pure theory it could only be said that there are a number of logical possibilitie: In its pure form that theory would lead simply to a formal colourless science of logical possibilities, as most clearly envisaged, but tia For interesting parallel thought to Professor Kelsen’s in the field of modern ethies see M. Scblick, Fragen der Ethik (1930) transl. D. Rynin ae Problems of Ethics (1939) esp. 17H. Professor Kelsen had contac th the same philosophical circle. See D. D. Runes (ed.) Twentieth Century Philosophy (1943) 406-407. 32 A. D. Lind: recent modified ve effect to the Kelse (The Modern Democratic State (1943) ¢, ix) has given a ion of the Austinian theory of sovercignty which reduces it in ie form, though Professor Keleen is not referred to,96 KELSEN'S PURE SCIENCE OF LAW (CHV $7 scarcely executed by Ernst Roguin.!? Professor Kelsen’s confession that any basic norm chosen is always hypothetical is not quite ade- quate, For a hypothesis is a proposition provisionally accepted as true, But in its pure form, as a science of possibilities," the Kelsenite theory cannot discriminate between possible basic norms. In short, before a basic norm is postulated for any legal system, this theory is purely formal and empty and inapplicable to any actual legal problems. Yet a basic norm cannot be postulated except after an examination of the extra-legal facts of the particular society which Kelsen declares to be outside the pure science of law. We shall return to this difficulty at the end of the exposition. II, PRINCIPAL DOCTRINES OF THE “PURE” SCIENCE OF LAW. § 7. THe Basic Nor as a Supaeme Detimtration or ComPereNce wirmin 4 Lecat System. Within the limitations inherent in it as an analytical system, this “pure” theory of Jaw has produced new insights into the logical structure of the law, and to these we may now turn, The “legal” quality of any norm ultimately depends, we have seen, upon whether it can be derived from the basic norm. That basic norm may delimit the norms derivable from it in any or all of three ways. First, it may apportion norm-making competence among persons in the state, This is the irreducible minimum content of the basic norm, whether it be contained in the unwritten postulate of English law that the will of the King in Parliament prevails; o whether it be in a rigid written constitution as in the United States or Australia. Whether or not it does more, it must at least lay down where the power to create legal norms resides. All norms created under the powers thereby given are valid. No norm not 60 created is valid. Second, however, the basic norm may regulate the procedure to be followed in creating norms. The “King in Parliament”, re- ferred to in the supposed English hasic norm, not merely designates certain human beings, but, it is believed, also must designate cert: procedure—parliamentary procedure—which they must follow in creating norms. In rigid constitutions amendment provisions usually include special procedural rules. Third and, more important, the basic norm may also limit the content for valid norms, The out- standing examples are limitations upon the legislative power imposed by so-called bills of rights. The Fifth and Fourteenth Amendments 39 Supra Chapter IIL +4 That is without reference to the existential facts as a guide to discovery course other writers recognise this ultimate nondegal basis of the legal system, See ¢.8., Professor Pound's position (Social Control Through Law (1941) 53.54) that “the legal order goes on as long as the law performs adequately its task of securing and adjusting interests s0 that the habit of obedience Bat then Professor Pound is not urging, as Professor Kelsen has seemed to do, that a “pure” science of law can autonomously coutribute greatly to legal progress, And cf. A.D. Lindsay, op. eit. 22829,CH.IV §7] DELIMITATION OF LEGAL COMPETENCE a” to the United States Constitution, for example, prohibit federal or state authorities from depriving any person of life, liberty or pro- perty “without due process of law”;"* and 6.116 of the Commonwealth of Australia Constitution Act restricts the making of certain norms affecting freedom of religion. In Professor Kelsen’s terms, that pro- hibition being a part of the basic norm, no derivative norm incon- sistent with it will be legally valid. ‘That, of course, conforms to the assumption of judicial power to strike down such legislation. §8. Deuimtration or Comperence py INtermepiate Norms. On the traditional view, of course, the provision of the Commonwealth of Australia Constitution Act cannot rank as a basic norm since the legal force of that Act itself derives from a higher norm. It derives from the norm conferring supreme legislative authority within the Empire upon the Imperial Parliament.” In short, from Professor Keleen’s point of view the provisions of the Constitution Act would represent norms devolving power to the Australian authorities. The Australian authorities are strictly delegated authorities, even though within the limits of the matters delegated they have all the attributes of sovereignty. In particular they are free to delegate further by the making of further norms. ‘This directs attention to the fact that, in addition to the bi norm, every subordinate norm also has this same quality in relation to all norms inferior to it, Every norm except the basic norm, thera: fore, besides controlling all the norms dependent upon it, is itself controlled by all the norms which are superior to it. The basi norm while it is independent of any other norm in the system itself, controls all the norms of the system, which descend from it by the process of derivation into the smallest minutiae of law. The entire legal eystem thus presents the appearance of what Professor Kelsen has called a hierarchy or pyramid of norms, The process by which there is derived from the basic norm these successive levels of nor- mative rules, he terms the “concretisation” of the system. In a still broader fashion the entire hierarchy, including the process by which its contents are concretised, he terms “the legal order”. §9. Norms s “Dersvenouocisen” ComMAns. Professor Kelsen agrees with Austin that the clement of coercion is of the essence of “lawness”, Austin, it will be recalled, seemed to regard-the sanction as operating through the subject's fear of evil* For Professor Keleen it is sufficient if the legal norm provides a definite sanction, and the influence of the eanction on the mind of the subject is irrele- vant?® All that is essential is that the norm should express what 28 On the meaning of this see infra Chapter IX, $$ 8f 17 Te may very difficult matter to decide whether that ba: norm is .'D. 3y_ (Modern Democratic State (1943) 219) th it was, even before the Statute of Westminster, “the merest ficti 18 I will be recalled, that one of the difficulties with Austin’s view is that he regarded the slightest threat of to constitute @ sanction. It is obvious that at some stage will be so slight as to have no psycho: logical effect: in would still insist that it constituted a sanction, sociological jurisprudence, See article cited, ks 55 Haro. L. 4 fev, at 57.98 KELSEN'S PURE SCIENCE OF LAW (CHV §10 ‘ought to be done and impose a sanction conditional upon it not being done. The norm is a “hypothetical judgment” in which the diso- bedience to the conduct prescribed is the condition of the sanction. In Professor Keleen’s view “all other concepts especially those of legal duty and right are derived from it”. The difference hetween the two analysts in this regard seems to spring from the difference between Austin’s concept of law as the command of a personal sovereign, and Professor Kelsen’s concept of an impersonal hypothetical judgment, The latter” attacks the com- mand notion on the ground that it introduces an unnecessary element of will into the concept of law. He points out that even if command he the expression of human will, it is still the expression and not the supposed will that is important. A law may continue to be valid long after all the wills of the persons who passed it have perished with them. Moreover, it may be valid if the due forms have been observed even if the majority who voted for it do not even know its contents. Finally, the minority who voted against a bill can scarcely be said to will it, yet their participation in the law-making process is essen- tial for the bill to become law. A legal norm, then, is an “ought” Proposition, with a sanction attached, regardless of the will or m either of those who issue it or those who receive it. It is a “de- psyehologised” command. §10. Dunes, Liasuares ano Ricuts, The legal duty is in Professor Kelsen’s concept derived from the nature of law. For that notion is implicit in the very concept of the norm. A duty is merely a norm looked at from the point of view of the person to whom the norm is directed. At this point a difference emerges which depends essentially on the fact that whereas Austin limits his scope to. mature systems of law, Professor Kelsen takes all law for his province. For Austin duty and liability to sanction inhere in the same person: to have a duty, is “to be liable or obnoxious to a sanction in the event of disobeying a command”. If I have a duty to exercise care, it is because Tam liable in damages if I fail in that duty. Professor Kelsen points out that this inheronce in the same person is not necessary, that it is equally consistent with the nature of law as a hypothetical judgment to impose the duty upon A and the liability on B. He instances the law of primitive societies where it is common to find collective responsibility of the whole bloodgroup for the act of one single member: and international law to-day where, he im- plies, the duty is imposed on the state as an entity, whereas the +9 Tbid. at 5456, Cf. from a sociological viewpoint H. Cairns, The Theory of Legal Science (1941) 25; and from the viewpoint of political theory, A. D- Lindsay, op cit. c, ix, esp. 226, But see C. A. W. Manning, “Austin To-day” in W. T Jennings (ed.)' Modern Theories of Lavo (1933), who argues that, under- siood in its full context, Austin’s references to sovereign “persons” are references to an abstraction—to “authority under the constitution"—to a collective “it” not be equivalated to concrete individuals, So he argues that Austin's Seubject Ives are equally an abstraction, not subject to psychological or sociological testing (196); and similarly with his sanction (19493). Cf. supra Chapter Il, § 7 and citations there given. BT op. eit, 446,CH.IV §10) DUTIES, LIABILITIES AND RIGHTS 99 liability to sanctions is suffered by the individual members of the state. It will be seen that both of these examples fall outside Austin’s self-determined scope." Such a division between duty and liability violates the sense of justice, High-minded men are still revolted by the visitation of the sine of the fathers on the children. And this revolt is justified by the uses to which the division has been put by legal systems like that of National Socialist Germany. Professor Kelsen is not advocating this division as fair or just. He is merely saying that in his concep- tion of law such a division is possible, Professor Kelsen, like Austin, recognises that the legal concep- tion of “a right” comprehends at least two broad notions. First, absence of legal restraint including the “right” of freedom of speech; the latter more exactly termed a “liberty” or by Hohfeld “a privi- lege”; and second, a legal power of control over others, Austin and Professor Kelsen agree that in the latter sense the term “right” and the term “relative duty” signify the same notion considered from different aspects. A’s right to repayment of £50 which he has lent to B is but the other aspect of B’s duty to repay the £50. B’s duty to repay and A’s right to receive this £50 are merely the legal norm concerning loans viewed from B’s and A’s points of view respectively § 11. Concretisation or tHE System oF Norms. Perhaps the most important contrast between Austin’s theory and the “pure” science of law has been put thus by Professor Kelacn himself.” Analytical jurisprudence as presented by Austin regards law as a aystem of rules complete and ready for application without regard to the process of their creation. It is a static theory of the law. The pure theory of law recognises that a study of the statics of law must be supplemented by a study of its dynamics, the process of its ereation. This necessity exists because the law, unlike any other system of norms, regulates its own creation. We have seen that the basic norm and its derivative norms dete wine those which follow, by designating their source, delimiting their ~ However, examples Hough debetable ones might be found in modern legal systems too. When the English court in A.G. v. Corke (1936) 1 Ch. 89, 92 sda landlord in respect of acts of nuisance by caravan dwellers on’ hi being made So, it might be argued, as to a master's vicarious liability, the breach of duy by'the servant, but the liability to sanctions rests on the master. Sed. qu. the servant is himself also liable to Or may there be distinct sanctions on several persons supporting a single duty in one? 25'See infra Chapter V, §& ff 24 1 op. eit. 395, adopted Kelsen, article cited in $5 Harv. L. Rev. at 61. ‘Because a right even in thi sense is merely one side of a duty, Professor Kelsen would limit “a right” exclusively to legally given powers schich ‘are not merely a reflection of another's duty. In other words he would fimit it to the situation where A is entitled in law to compel B to fulfil a duty, not towards A himself, but towards some other person. Would the right of an informer to proceed for penalties in respect of offences against the state, or the right of a citizen to proceed by mandamus against an official to compel him to collect taxes, be examples? I am not confident that I have understood the significance of this part of the argument. 28 Article cited in 55 Harv. L. Rev. at 61, 27 Sed qu, whether this contrast witht Austin disadvantage. t too starkly put to Austis100 KELSEN’S PURE SCIENCE OF LAW [CH.IV $12 contents or prescribing the procedure for making them. This aspect of the basic norm provides its dynamic quality, Professor Kelsen can fit the adoption of popular custom into his system by permitting a norm to be created at some point providing that what is fixed by custom ought to be observed. Some followers, indeed, find the basic norm of international law in the binding force of custom. So administrative or judicial creation of law can readily be explained as the result of norms delegating power to the appro- priate authority. We do ordinarily speak of delegation of legislative power to the executive, and we find specific norms making the dele- gation** at hand, usually in statutory form, but sometimes in the common law of the prerogative. Though less obviously, the explana- tion seems equally sound for judicial legislation. For instance, we clearly do have norms telling us how far precedent is binding, and it is generally assumed that such norms are themselves “law”. Article 1 of the Swiss Civil Code, requiring the judge to decide where the law is silent, as if he himself were legislator, is precisely such a norm made explicit. Austin generally stopped his enquiries into the law when he had reached the general rule of law. His theory does not lend itself to the individualisation of legislation and of adjudication which is increasingly prominent in modern law. Indeed, he tended to exclude rules for single persons, and especially for single occasions, alto- gether from the definition of law.” On the other hand, Professor Kelsen’s hierarchy of norms descends down to the very last operation, Tegal execution and satisfaction of the judgment. If A and B have made a contract and B refuses to carry it out, then the judge ought to condemn B in damages and costs, If B is so condemned he ought to pay the damages and costs. If B does not pay then the sheriff ought to levy execution on A’s request. The concatenation of norms proceeds down to the most specific detail of the individual case, until either the latest norm is fulfilled or until the norms provided by the law are exhausted. § 12. Conrract as a CONCRETISATION or Norms. It has been gener- ally aseumed that the terms to be included in contracts are in some special way exclusively in the parties’ competence—the sphere, in continental language, of “the autonomy of the will”. Contract has heen regarded as par excellence an example of private as opposed to public law. Professor Kelsen’s logical theory, however, views the terms of contracts as merely norms no different in legal nature from those, for instance, of constitutional or criminal law. If they are legally valid it must be because some superior norm, and eventually the basic norm, gave power to the contracting parties to create norms. And just as an administrator's delegated legislation acquires its legal ‘Austin spoke of “circuitous 1 and he ox: plained judgemade law on the basis of tacit adoption by the sovereign, For fome consideration of the sociological aspects of hierarchy and concreli see NS, Timasheff, Sociology of Law (1939) . xiii 28 Supra Chapter TI, § 9. 90 Whether the pariies concerned do whet each norm directs is a matter fact with which the pure theory is not concerned.CH.IV §12] CONCRETISATION OF THE LEGAL SYSTEM 101 force only from the basic norm and not from the autonomous will of the administrator, so the individual’s power to contract is merely a delegation of legislative power. An action for breach of contract is an action to enforce the legal norm ¢o ereated quite analogous to an action to enforce a norm of the criminal law. This mode of looking at contract is of importance not so much for its positive consequences, but because it teases certain deep pre- judices concerning the institution of contract into an effort at rational self-justification. Whereas, as late as 1882, Professor Miller thought that the law was destined to shrink, leaving the individual free to establish through contract his relations with his fellows, the opposite tendency has been apparent ever since. This change has been resented and resisted as an encroachment by law beyond its proper sphere. But if the right to contract can be viewed logically as a legislative power conferred, like all legislative power, by the legal order, pro- ducing legal norms like any other legal norms, the encroachment argument ceases to be self-evidently sound. The law gives this power to contracting parties: the law may be at much concerned with the norms they ereate as with those an administrator creates." If this is so it seems not unnatural that the power to contract, being con- ferred by law, should be delimited by law; and, further, that the claim which men make to contract freely should be subject to a corresponding burden to use the “right” to contract in a way con- forming to the spirit of the legal order. There scems no reason why the doctrine of abuse of delegated legielative power should not apply equally to the power to legislate by contract. Many other reflections on the law of contract emerge from thi: teasing, of which that on the “implied term” as a basis for frustration of contract may be mentioned, That theory is under attack, includ- ing judicial attack, at the present day. Its tenacity of life is, it is believed, due in part to the feeling that contracts have some special immunity from legislative interference. The “implied term” is a fiction which reconciles this feeling to the hard fact that the doctrine of frustration is such an encroachment. If the power to contract is regarded as a delegated power to create legal norms, there is seen to be no need for resort to euch fictions, Legal norms created by con tracting parties are subject like all legal norms to the restraints of superior norms. The rules of frustration might then be seen as such superior norms. Professor Kelsen, indeed, points out that for the law not to interest itself in the mode in which the power to contract is exercised, would in effect, be to grant unchecked arbitrary legislative power to those persons in sociely who de facto are in the strongest bargaining position” Cf 'a'main theme of J. Commons, Legal Foundations of Capitalism (1924) esp. ce. ‘This point is relevant also to Chapters XIV, ¢ 2 and XX1, $8 134, 59 See infra Chapter VIT passim. A good example, with respect, is Professor A. D. MeNait’s apparent belief that judicial intervention to relieve parties frastration, a conceived by Lord Wright involves necessarily the importation of an implied term. Sce his “Frustration of Contract by War” (1940) 56 Law Q. Rev. 173, 119, 161. 44 ‘The above discussion is not concerned to favour or otherwise restraints on the contractual power, but solely with conceptual inhibitions which prevent a straightforward approach to the questions of policy. As to policy iteelf tec infra Chapters last cited. So also, it is believed, many of the difficulties felt by British courts in eases under the family protection and provision acts authorising pro-02 KELSEN’S PURE SCIENCE OF LAW [CR.IV §13 §13. Lecan Pensonauiry as a Pout oF Operation or Lucan Norms. If the legal duty is merely a legal norm as it affects the person bound (the “passive subject”), and the legal right is merely the duty as viewed by the person entitled to require fulfilment for his own or others’ benefit (“active subject”), then a simple theory of legal personality also emerges. Traditional theory usually assumes that rights and duties are attributes of a “person”, that there is an entity separate from the rights and duties but in which the rights and duties inhere. So far as human beings are concerned this way of putting it causes no major difficulties, But in connection with the legal personality of corpora- tions controversy has Jong raged as to the nature of this supposed entity." One main line of thought, that of the so-called “realists”, takes the view that such an entity does exist although it is a psychical entity distinct from the physical or psychical entities of the indivi- dual human beings concerned. Another line of thought, of the s0- called ““fictionalists”, or “concessionists”, hold that there is no such entity, that the corporate entity on which rights and duties are conferred is a fiction of the law. Both views assume that one essen- tial of legal personality in all cases is the existence or pretended existence of an entity on which rights and duties are to be conferred. It is this central assumption which Professor Kelsen challenges. For, legal duties and legal rights being merely derivative aspects of legal norms, he infers that a legal person consists merely of that collection of legal rights and duties which ‘operate at a given point. Whether in the case of physical persons or of corporate or other juristic persons, legal personality consists of neither more nor less than the bundle of rights and duties which constitute the unit of operation of norms. The legal order, Professor Kelsen in effect says, may confer legal personality where it will. Consequently legal per- sonality should not be defined by reference to either physical or material, or indeed, psychical entities. In his view controversies as to whether corporate legal personality is to be regarded, like human legal personality, as conferred upon a real entity, lack meaning; human legal personality is not conferred upon a real entity. “Juristic and physical persons are essentially on the same plane. ‘The physical person is the personification of the sum total of legal rules applic- for dependents out of willed property are at least increased by the feeling testation is a sphere of the autonomy of the will; and might be mitigated if the testamentary power were seen as a delegated power to create legal norms. 5 See for introduction to Anglo-American discussions Maitland’: Intro. to ©. von Gierke, Political Theories of the Middle Ages (1900), xviii 7 Geldart, “Legal Personality” (1911) 27 Law Q. Rev. 90; H. J. Laski, “The Per- ity of Associations” (1916) 29 Harv. L. Rev, 404; Warren, Corporate Advan- tages without Incorporation. F. Wallis, Corporate Personality (1930) should not be read for introductory purposes. A fuller bibliography including continental references will be found in R. Pound, Outlines (1943) 15758, For an important detailed comparative study of the law and theories of juristic per- sonality arriving substantially at Professor Kelsen's result see A. Nekam, Person ality Conception of the Legal Entity (1938) being Harvard Studies in the Conflict of Laws, vol. iti, Cj. the English authorities marshalled in support of the “relativist” approach to the “lifting of the corporate veil” in W. Friedmann, Legal Theory (1944) ¢. xxvii Even as to human’ beings the doctrine of the separate entity raises some problems. See e.g. infra Chapter Vil, § 5, as to unborn and unconceived persons.CH.IV $13} NORMS AND LEGAL PERSONALITY 103 able to one person. The juristic person is the personification of the sum total of legal rules applicable to a plurality of persons”.** The considerable range of attribution to-day of legal rights and duties to unincorporated associations, like trade unions, gives some support to this part of Professor Kelsen’s theory.* $14, Distincrion Between Private ano Pustic Law UNTENABLE. ‘The subsumption of contract under the law-making power, and the identification of legal personality with the point of operation of egal norms, provide a natural transition to Professor Kelsen’s treat ment of the distinction between public and private law. ‘This he says is untenable hoth in theory and practice, For the contractual power, pre-cminently associated with supposed private law, is not really distinguishable from the legislative power pre- eminently associated with public law. Both derive their legal quality equally from the basic norm. Along with many modern thinkers, Professor Kelsen rejects the argument, of Roman origin, that public and private law pertain to different kinds of interests, He points out that if there were no public interest in individual contractual rela- tions, society would not take the trouble either to enforce or regulate them. So too with other branches of so-called private law. Con- versely “public law” is seen in the ultimate analysis to be concerned with interests of individuals indistinguishable in kind from those protected by “private law”. Moreover his analysis of legal personality prevents Professor Kelsen from recognising the other proferred criterion, namely, that private law regulates the relations between citizens inter se, while the state or an organ of the state is always one party to a relation of public law. For since, in his view, legal personality is mercly a complex of duties and rights resulting from the convergence of legal norms at a particular point, “public” persons are no more di guishable from “private” human beings, than are these latter from corporate juristic persons, This conclusion of the “pure” science of law is not novel. Duguit had reached it come time hefare, but of course, by a different route."* Austin himself, indeed, had reached it analytically when he pointed ont that on the one hand all so called “public” injuri were injuries to individuals, and, on the other, that if there were no “public” interests involved in “private” injuries, the law would not interfere. Further, he had pointed out, all law was really 36 H. Lauterpacht, loc. cit. 113. By the same token the juristie persons such sharitable foundation of German Taw, hereditas iacens of Roman law, are simply the complex of rights and duties assembled around the thing or conception by the norms of the logal. system. Though sch personality is unusual in modern law it is legally speaking no different from that of a human being or a eorporati Tt is. sub: mitted that Lauterpacht’s account, ibid. 11415, is in this respect inadequate if not misleading. J. R. Commons, op. eit, supra n, 31 at 143ff. reaches curiously similar results. 37 See D. Lloyd, The Law Relating to Unincorporated Associations (1938) (ior English law), and T. R. Witmer, “Trade Union Liability . . . the Unincor- porated Corporation” (1941) 51 Yale L, J. 40 (for American problems). And see infra Chapter XXIII, passim. 38 See infra Chapters XIV § 2, XIX, §§ 11-12 and citations there given. he corporation sole of English law,104 KELSEN’S PURE SCIENCE OF LAW {CHV $15 “public”, whether we look to “the persons in whom rights and obligations reside or whether we look to what is, or at least ought to be, the end of law, that end heing the good of all”. $15, StaTe, SoveReiontY AND THE Lecat OnpER, The denial of the distinction between public and private law is closely related to two other breaks with accepted notions. The first is Professor Keleen's denial of the existence of a “sovereign” as a personal entity, The second is the denial of the existence of the state as a distinct entity. In denying the existence of “eovereign persons” Professor Kelsen is, of course, diverging radically from the usual interpretation of Austin.” For the “pure” science of law there can be no supreme legal persons since all legal persons are merely creations of the hierarchy of norms, All derive what power they have ultimately from the same basic norm. The power of the King in Parliament, the statutory power of a Minister to make regulations, the power of William Jones to make a binding contract or a will, all depend on the devolution of legal power under the basic norm. Whatever be the correct interpretation of Austin, Professor Keleen’s analysis cer- tainly does avoid difficulties felt by Austin and his followers, for instance, as to whether the sovereign can be bound by law. ‘There is no logical difficulty on this latter analysis in holding that all members of a state are subject to law. Tt has been seen that the nco-Austinians, in their attempt to reconcile Austin’s conception of “the sovereign” with the democratic principle that all men are subject to law, came to the conclusion that the true sovereign was the state as a person, and that the so-called “sovereign persons” were merely agents or “organs” of the sovereign. agreeing with the neo-Austinians in discarding the con- ception of determinate sovereign individuals, Professor Kelsen goes further and denies them altogether the comfort of a personal sovereign. For he insists that “the state” is but a simple way of conceiving the unity of the legal order, just as a personal God is a simple way of conceiving the unity of the moral order of the universe. He eays in a late formulation:* The dualism of state and law arises from hypostatising the personification, asserting this figurative expression to be a real being, and so opposing it to the law. If, however, juristic thinking is freed from this fiction, then all the problems con- cerning the relation of state and law are revealed as illusory. ‘Thus the much invoked question whether the state creates the law is answered by saying that men create the law on the basis of its own definite norms. The individuals who create the law are organs of the legal order, or what amounts to the same thing, organs of the state. They are organs because and to the extent 80 2 Lectures... (3 ed. 1869) 183-84, 18687, For a recent account of the distinction in legal history and in the literature see J. W. Jones, Historical Intro- duction to the Theory of Law (1940) cv. For the medieval controversy see W. Ullman, “Baldus’ Conception of Law” (1942) 58 Law Q. Rev, 395-98. This and several other of Kelsen’s refinements are independently made in J. R. Commons, op. eit. supra n, 31 at 83-134, esp. 111ff 4° ‘But see supra Chapter Il, § 7. 9 55 Hare. L. Rev. 44, at 65. Cf. J. R. Commons, op. cit. at 150.CHAV $15) PUBLIC LAW AND THE STATE 103 that they fulfil their functions according to the provisions of the legal order which constitutes the legal community. . . . If a norm of the legal order is created in accordance with the stipu- lations of another norm of this legal order, then the individual who creates the law is an organ of the legal order, an organ of the state. In this sense it can be said that the state creates the law, but this means only that the law regulates its own creation. II. THE LIMITATIONS OF THE PURE SCIENCE OF LAW. § 16. Impurrry or THE Basic Nom, The quality of purity, that is of exclusion of all reference to the social facte or to justice is, as has been seen, rightly claimed by Professor Kelsen for all norms dependent on the basic norm. His claim of purity amounts to this: that once we grant him a basic norm for a particular system of Jaw, all his subsequent operations are “pure”. But it is important to observe that since that basic norm itself is obviously most impure, and since all the rest are traceable to it, they would all scem equally tainted. Professor Kelsen, then, is inviting us to forget the illegi- timacy of the ancestor in admiration of the pure blue blood of the progeny. Yet the genes are at work down to the lowliest progeny. Thus American Jaw would be very different if its basic norm were that “the will of Tammany Hall ought to be obeyed”, and British or Australian law would be very different if the basic norms required obedience to the will of Imperial Chemical Industries or Broken Hill Proprietary Ltd., on the one hand, or to the Trade Union Congress or the Australian Couneil of Trade Unions on the other. Professor Kelsen, indeed, clearly admits that expertness in the pure science of law is no qualification for choosing the basic norm. But he fails in two major respects to draw the consequences of this admission. First, he does not recognise that the inquiries called for are precisely those of sociological jurisprudence and the theory of justice. Excluded though these are from all the side doors and back doors of his pyramid of norms, the front door is wide open to both. Second, as late as 1942, he has written as if his “pure” science of law is a foundation without which the sociological and evaluative in- quiries cannot proceed. “Sociological jurisprudence”, he says, “pre- supposes normative jurisprudence since until the latter has deter- mined what are legal norms sociological jurisprudence has no defined provinee”.? Yet the truth seems to be exactly the reverse."* Tt is his he 2B though some people argue that these propositions approximate to 43 “Pare Theory of Law and Analytical Jurisprudence” (1942) 3 Harv. L. Rev. 44, 53. This in itself was a moderation of eatlier attitudes which tended sometimes i Tawyers at all. ppProximates £0 preset post a century ago. Me. J. W. Jenen, (op. ct, 238 seems to. grant Professor Keleen’s claim.” See supra Chapter Ile 2 ‘This truth ham ite believed, been obseared bythe fact that Profess Kelson and his followers have applied thete theory in The main te" C1) ta af law, He the Austrian ite, operating under writen constitution, where Sirense the basic norm is given--the contttutten, until sie overthrowtay (0) the fimple unitary aysiem like the English, where the basie norm ie even bp the traditional acteptance_of the legal supremacy of the King in Parliament? (3) international law where. of course. nothing 1s. given.” It ie signifennt that it i