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Visualization of Hans Kelsen's Pure Theory of Law

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 Visualization of Hans Kelsen’s Pure Theory of Law
Vytautas Čyras Friedrich Lachmayer Guido Tsuno

Vilnius University University of Innsbruck Chuo University

Vytautas.Cyras@mif.vu.lt Friedrich.Lachmayer@uibk.ac.at Guido.Tsuno@mac.com
http://www.mif.vu.lt/~cyras/ http://www.legalvisualization.com

Abstract. Hans Kelsen’s Pure Theory of Law is the most prominent and influential legal theory for continental
law systems. Kelsen’s book contains only text – neither logical notation nor pictures. Despite of this, an
impression is that Hans Kelsen himself had very clear imagination. In our contribution we make an attempt to
start visualizations of his theoretical models. This is important for legal informatics. Explicit visualizations of the
structures of law and their theoretical representations are important for the development of legal ontologies. In
addition to theoretical importance, visualizations contribute to understanding the law which is expressed in non-
textual mode. In particular, legal machines take non-textual effect in legal situations. Kelsen created a paradigm
of an up-to-date legal theory so that the visualizations of his ideas bring out an interesting way to understand the
pure theory of law. Visualizations proposed in this paper aim at cognition and hence serve as models.

Keywords. Legal visualization. Legal informatics. Interpretation of legal terms. Is and ought.
Soft visualization.

1. Introduction
AI & Law attempts to formalise law, produce logical structures of law and consequently make use of computers.
Applying formal notations is a big part of the mainstream. This can be demonstrated by an increased number of
JURIX1 annual conference papers which make use of formal notations.
Often formal notations relate to details only. This is because textual systems of law contain details that can be
brought out adequately and precisely. On the other hand, on a purely theoretical level the need for contexts can
rise, in particular, for the context of legal theory. Here Hans Kelsen’s Pure Theory of Law can be considered as a
theory on the background. In this respect a connection between the Pure Theory and AI & Law is provided.
Hajime Yoshino also concerns Kelsen deliberately.
When it comes to visualizations, besides automatic visualizations, see e.g. (Täks et al. 2011), there are inherently
intuitive visualizations. Hence, strong visualizations come alongside weak visualizations. Both have their
functions. A problem of visualizations is that their syntax is not uniformed. However, this gives the advantage of
freedom in shaping. Visualizations can make the context increasingly obvious. This is important to bring AI &
Law into action. Visualizations can serve as maps for the orientation in textual landscapes of law. Thus the
benefits of AI use are increased.

1
The foundation for legal knowledge based systems; see http://www.jurix.nl/.
1
Hans Kelsen is one of the most studied legal philosophers. His texts are of great linguistic and intellectual
intensity and combined with a very clear pre-textual imagination. Reading Kelsen is a must during the studies of
law. However his imagination is not easy to grasp from the first reading. A layperson may also wish to find a
concise conceptual model of law. Legal informatics needs models in a form which is used for knowledge
representation in informatics. Visualization is a middle way to graphical models.
This paper divided into several parts. Section 2 is devoted to the significance of the Pure Theory of Law in the
historical formation, namely, taking over from the natural law. Section 3 distinguishes between the Is (Sein) and
Ought (Sollen) realms. Section 4 describes different kinds interpretations – of facts, legal texts (content), and
legal acts. Section 5 is devoted to construction and Section 6 to purification.

2. Historical position
Kelsen wrote two editions of the Pure Theory of Law: the first edition 1934 and the second 1960. A key feature
of the Pure Theory is a paradigm change of legal theory and proposing a new juridical methodology. Kelsen
introduced new concepts and terms, in particular, norm, basic norm, the hierarchy of norms, legal act, etc.
Kelsen stopped the scientific discussion and took over from the natural law doctrine:
The denial of the duality of Is and Ought implicit in the concepts of entelechy and practical reason is an
essential element of the doctrine of Natural Law (Kelsen 1991 § 16II; p. 70).
Here we recall René Marcic (1971) as one of the last important thinkers of natural law. Legal logic and legal
informatics succeeded in the research.
A scientific mainstream after Kelsen was the legal logic invented by Georg Henrik von Wright with his article
on deontic logic (1951). Other important exponents of this direction are Ilmar Tammelo, Ota Weinberger, Jürgen
Rödig and Hajime Yoshino. Since 1970’s, legal informatics exponents are Herbert Fiedler, Leo Reisinger, Alfred
Schramm, Erich Schweighofer, Roland Traunmüller, Maria Wimmer, just to mention a few.
To characterize Kelsen’s position, we invoke Stanley L. Paulson’s formulation on resolving the antinony
between the reductive thesis and the normativity thesis. In the introduction to 1992 translation of Reine
Rechtslehre first edition 1934, Paulson expresses a view of “how Kelsen distinguishes his own position from
those of the tradition” (Kelsen 1992, p. xxviii):
(i) Is the normativity thesis derivable from the morality thesis?
The tradition: yes. Kelsen: yes.
(ii) Turning the question around, is the morality thesis derivable from the normativity thesis?
The tradition: yes. Kelsen: no.
(iii) Is the separability thesis derivable from the reductive thesis?
The tradition: yes. Kelsen: yes.
(iv) Turning the question around, is the reductive thesis derivable from the separability thesis?
The tradition: yes. Kelsen: no.
Paulson finds that “Kelsen’s answers to questions (ii) and (iv) suggest the hypotheses which he begins – the
normativity thesis without the morality thesis, and the separability thesis without the reductive thesis”. We can
symbolize this: NT\MT ∩ ST\RT; see Fig. 1.

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 Law and fact Normativity thesis, NT Reductive thesis, RT
(separability (inseparability
Law and morality no of law and fact) of law and fact)
Morality thesis, MT Natural law
(inseparability theory no
of law and morality)
Separability thesis, ST
Kelsen’s Pure Theory of Law: Empirico-positivist
(separability NT\MT ∩ ST\RT theory of law
of law and morality)

Figure 1. Resolving the antimony. Adapted from Paulson’s introduction (Kelsen 1992, p. xxvi, xxviii-xxix).

3. Is and Ought
Kelsen uses a categorical distinction between Is and Ought; see (Kelsen 1967, § 3ff.):
An ought cannot be reduced to an Is, or an Is to an Ought; and so an Is cannot be inferred from an
Ought, or an Ought from an Is. (Kelsen 1991 § 16I; p. 58)
The duality of Is and Ought coincides with that of reality and value/ Thus no value can be derived from
reality, and no reality from value. (Kelsen 1991 § 16I; p. 61)
The Is realm is associated with causality and the Ought with imputation. The irreducible Is-Ought duality
corresponds to a very old mythical and religious duality between the Earth and Heaven, in other words, nature
and spirit. In Fig. 2 we visualize the Is with a horizontal plane and the Ought with a vertical one. Is/Ought
terminology was used already by Pufendorf; see his impositio. Pure Theory of Law as theory aims at cognition
and therefore appears on a metalevel (Kelsen 1967, § 1). Other elements such as the system of terms form a
modal indifferent substratum and appear on the metalevel, too.

System of terms:
thesaurus, taxonomies, ontologies

Metalevel Pure Theory of Law

Ought (Sollen) – legal meaning (Sinn)

Rules E.g. laws, decisions, etc.

Stage Is (Sein)
E.g. papers, verbal formulations, etc.

Content – formulations in words, etc.

Figure 2. Distinguishing between the Is and Ought worlds.

The realm of Is is the primary layer for the actors’ actions. It can be visualized with the stage metaphor. Not only
persons are among the actors but also requisites, for instance, things and, moreover, the actual substrates of
speech acts and legal acts such as the paper of statutes and judgments. Verbal formulations are assigned to the Is
even in the case the speech content is normative. The verbal formulations of Ought – the content – are
3
distinguished from the legal Ought that has a specific legal meaning (sense, Sinn, Deutung, rechtliche
Bedeutung).
The next layer, that of rules, is the realm of Ought. It is visualized vertically. According to Kelsen it deals with
the legal meaning, namely, a specific legal significance. The Ought comes up to the actual substrate, the Is.
Legal acts of the laws, judgments, the private law, e.g. private contracts, etc. constitute the Ought as a regulative
background of the Is stage.
Material artefacts such as paper documents and verbal formulations appear in the Is world. Their legal meaning
appears in Ought. The Is world is factual – it comprises facts, for example, the existence of a certain instance of
table. The Ought is connected with culture. The notion of table appears in Ought.
Pure Theory of Law comes up as next layer and namely as a scientific descriptive metalayer above law, the sense
sphere of Ought. The legal science shall be descriptive in principle to remain “pure”. But the Pure Theory of
Law, though admittedly on the top layer, also contains prescriptive elements, namely, the command to legal
science to include only descriptive value-free sentences.
Kelsen spoke (1991, § 16II) about modally indifferent substrate (modal indifferentes Substrat) that constitutes a
system of terms built of terms contained in law. Continuing these beginnings, one can arrive to the modern
system of terms that comprises thesaurus, taxonomies and ontologies.
Science has reached in Kelsen a historical peak, however did not leave standing and in multiple phases
distinctively developed further. Ontologies can be viewed as the most modern development of the system of
legal terms; see e.g. (Casellas 2008).
Causality and imputation. Kelsen devotes separate chapters to explain the distinction; see e.g. (1991, ch. 7).
Imputation links a condition and a sanction brought about by a general moral or legal norm. Computer scientists
are accustomed to the axiomatic method. Therefore they need special efforts to comprehend when they
“encounter a principle which is different from the principle of causality expressed in the natural laws formulated
by the natural sciences”. These are two “different, but analogous” functional connections:
The difference between the two is this: imputation (i.e. the relation between a certain behavior as
condition and a sanction as consequence, described by a moral or legal law) is produced by an act of
will whose meaning is a norm, while causality (i.e. the relation between cause and effects described by
a natural law) is independent of any such intervention. (Kelsen 1991, ch. 7 p. 24)
Central and peripheral imputation. Formulating the concept reveals subtleties. Paulson writes about the
“objectivity” motif in Kelsen’s Pure Theory of Law and calls Kelsen’s thesis the “nomological normativity
thesis”. Kelsen distinguishes between central imputation and peripheral imputation:
[Central imputation] is an entirely different operation from the peripheral imputation mentioned earlier,
where a material fact is connected…to another material fact within the system, that is, where two
material facts are linked together in the reconstructed legal norm. (Kelsen 1992, p. 50-1)
Paulson proposes the following formulation of peripheral imputation:
Formulation II. If an act of a certain type takes place (and if …) then that act is treated as ‘liability
ascribing’. (Paulson 2011, p. 18)
Paulson analyses imputing liability to the act rather to the actor and notes that “the character of the liable party –
actor, surrogate, or collective body – is a contingent factor, a question of legal policy, not legal science”.

4
 In any case it is precisely this necessary relation between act and liability that represents the core of
what I am calling Kelsen’s nomological normativity thesis. The relation is nomological in being
necessary or law-like, and it is normative in being non-causal. (Paulson 2011, p. 19)
Paulson concludes:
Where the antecedent condition obtains, this marks the imputation of liability to the act, a necessary
relation. Where the ascription of liability to a person is made, this marks a change in that person’s legal
position. The change, Kelsen insists, is a normative change, not a causal change. (Paulson 2011, p. 21)
No long series of imputation. A difference of causality and imputation is that “by the very nature of causality –
the chain of cause and effect is endless in both directions”. Contrary, “[t]he imputation series does not have an
unlimited number of members as the causal series does: basically it has only two members”. (Kelsen 1991, ch. 7
p. 24) Hence a network of causes and effects can be depicted as a graph with two types of edges, denoting
causality and imputation (Fig. 2a). Long series of causality may appear, but not those of imputation.

Legend:

Cause Effect

Legal condition Legal consequence,

– material fact, state of affairs the legal position

Figure 2a. A network of causalities (thin edges) and imputations (thick).

Different network patterns could be employed to formalise distinguished theories of causality, fault and legal
responsibility such as “sine qua non” and “necessary and sufficient condition” (Hart & Honoré 1985).

4. Interpretations
This section concerns two groups of concepts: (a) facts, norms and texts, and (b) construction and
deconstruction. Kelsen describes five (3+2) different interpretations regarding facts, norms and legal texts. We
divide these interpretations into two groups (3+1):
1. The interpretation of factual reality (Is, Sein). Facts are the entities of the Is-world and are
transformed into the legal meaning (sense, Sinn; Ought, Sollen);
2. The interpretation of legal texts (content). Kelsen describes the interpretation of the content of legal
texts and the transformation in a new version of textual understanding. This is associated with the
procedure of subsumption;
3. The interpretation of legal acts (Rechtsakte). This is about the interpretation of normative sources
(normative texts) and their transformation into valid legal acts (e.g. laws). The basic norm is regarded in
this context. In this paper we express the main argument against the Kelsen’s basic norm concept: such
a (scientific) basic norm delegates a scientific qualification but no legal validity;
4. Construction.

5
4.1. The Interpretation of Factual Reality

A norm (that is from the Ought world) functions as a scheme of interpretation of a fact (from the Is world):
The external fact whose objective meaning is a legal or illegal act is always an event that can be
perceived by the senses …. However, this event as such, as an element of nature, is not an object of
legal cognition. What turns this event into a legal or illegal act is not its physical existence …, but the
objective meaning resulting from its interpretation. The specifically legal meaning of this act is derived
from a “norm” whose content refers to the act; this norm confers legal meaning to the act … . (Kelsen
1967, § 4a p. 3)
Hence institutional facts are interpreted according to the Ought (Fig. 3). The interpretation is erected on both the
Is and Ought. Here Pufendorf’s impositio can be recalled. See also (MacCormick & Weinberger 1992, p. 49-92)
for an institutional theory of facts.

Modally indifferent substrate Terms

Situation, facts

Legal meaning (sense, „Sinn“)

Interpretation Reaction

Interpretation
Norm
scheme

Figure 3. The interpretation of the factual reality.

It should be noted that a paper document of a draft law (bill) as such has no meaning. A legal meaning is
obtained when it is legitimated, e.g. by a parliamentary procedure.
The interpretation above has to be supplemented with the imposition of meaning; see Fig. 4.

6
 Basic norm

Legal norm

Objective
meaning (Sinn)

Not Subjectively Objectively

interpreted facts interpreted facts interpreted facts

Subjective
meaning (Sinn)

Subjective
interpretation
(Deutung)

Figure 4. Imposing the meaning to facts.

Firstly, facts, i.e. not interpreted facts, appear on the Is-stage. Secondly, subjectively interpreted facts on the Is
stage are subject to subjective meaning (Sinn). Subjective interpretation (Deutung) is on the mind layer. Thirdly,
objective interpreted facts on the Is-stage have objective legal meaning (Sinn) with respect to a legal norm in the
Ought world:
“Norm” is the meaning of an act by which a certain behaviour is commanded, permitted or authorized.
(Kelsen 1967, § 4b p. 5)
The command of a gangster…has the same subjective meaning as the command of an income-tax
official… . But only the command of the official, not of the gangster, has the meaning of a valid norm,
binding upon the addressed individual. (Kelsen 1967, § 4b p. 8)
Kelsen explains the subjective and objective meaning of the act of commanding (we illustrate this in Fig. 4a):
If the command is not empowered, then this is merely the subjective meaning of the act of commanding,
that is, it is the meaning the act of commanding has from the point of view of the commander and not
from the point of view of the addressee or any third party. …Only an empowered command also has the
objective meaning of Ought, that is, only an empowered command is a norm binding on the addressee,
obligating him to act in the prescribed way… . (Kelsen 1991, ch. 8.v p. 27)

7
 Act of Act of
commanding commanding

No legal meaning,
no norm Legal meaning

Commander Addressee Commander Addressee

Third party

(a) (b)

Figure 4a. The subjective (a) and objective (b) meaning of the act of commanding.
Legal norms conform to the basic norm:
Such a presupposition, establishing the objective validity of the norms of a moral or legal order, will
here be called a basic norm (Grundnorm) (cf. § 34a). Therefore, the objective validity of a norm which
is the subjective meaning of an act of will that men ought to behave in a certain way, does not follow
from the factual act, that is to say, from an is, but again from a norm authorizing this act, that is to say,
from an ought. (Kelsen 1967, § 4b p. 8-9)
The basic norm concept appears at the metalevel, the Pure Theory of Law.
Identity of two modally indifferent substrates. Kelsen (1991) devotes Subsection 16II the idea of “behaviour
which agrees with a norm”. The idea is expressed in the title: “Identity of the modally indifferent substrate of the
behaviour decreed to be obligatory in the norm with the modally indifferent substrate of the behaviour existing in
reality” (p. 60). Kelsen illustrates with the fact ‘A pays his gambling debts’ and the norm ‘A ought to pay his
gambling debts’. The content of the Is and the content of the Ought is the modally indifferent substrate ‘paying-
gambling-debts’. It is invested both with the mode of Is and the mode of Ought. This explains a formalisation
that a behaviour existing in reality, BF, agrees with the behaviour BN in the norm. The answer: the identity
relationship between two modally indifferent substrates. We can formally represent this BF = BN; see Fig. 4b.

Norm
Ought Behaviour BN Modally indifferent substrate

Identity. The relationship being-in-accordance-with-duty

Fact

Is Behaviour BF Modally indifferent substrate

Figure 4b. Behaviour which agrees with a norm is formalised with the identity BF = BN.

8
Subsumption procedure. To model the subsumption procedure, we can apply conceptual modelling formalisms
which are used in computer science, object-oriented analysis and systems development, namely, the general
relationships is-a, instance-of and part-of. Suppose the fact that my-door is open and the norm N “The doors
ought to be closed”. The norm can be formalised with the following modus ponens rule: if x is an instance of
Door, then x ought to be closed. Formally, x xDoor  O closed(x), where O is the deontic operator and
closed a predicate. The situation (fact) with the instance my-door is from the Is world. In order to interpret it, the
norm (with the door concept Door) from the Ought world has to be chosen. Then my-door is matched with Door,
formally match(my-door, Door). This can be simplified and expressed with a truth statement instance-of(my-
door, Door) or my-doorDoor. This truth statement is from the Is world. A graphical notation is shown in Fig 5.
A duty which is conferred on me, to close my-door, is from Ought. In the Is world I can decide to leave my-door
open thus violating the norm.

Door

instance-of

my-door

Figure 5. Graphical notation of the instance-of relationship, instance-of(my-door, Door) or my-doorDoor. This
visualizes that my-door (from the Is world) is matched with the Door concept within N which is from Ought.

4.2. The Interpretation of Legal Texts

The second interpretation is relative to the classical interpretation of the content of legal texts. The subsumption
procedure is concerned. The terms which are found in the legal text appear on the metalevel. The terms are
modally indifferent substrate (Fig. 6). On the function of application of law, adjudication by a court, see e.g.
(Kelsen 1967, § 35 g).

9
 System
of terms:
thesaurus, taxonomies,
ontologies
Terms
Modally indifferent substrate

Legal text
§ Norm Terms

Subsumption
Interpretation §, §, § ...

Decision
of the content

Situation, facts
Meaning (sense, „Sinn“)

Figure 6. The interpretation of legal texts.

4.3. The Interpretation of Legal Acts (Rechtsakte)

Legal acts are interpreted with respect to the basic norm (Fig. 7). A thin arrow represents a transition from a
normative text, a substrate that is in the Is world, to its legal meaning, that is in the Ought. Kelsen speaks about
different degrees of the relation called ‘correspondence’ between two norms and the validity of a lower norm
which founded on the validity of a higher norm:
A positive moral or legal order can never conflict with its Basic Norm. …A conflict is always possible
between Natural Law and a positive moral or legal order… . (Kelsen 1991, ch. 59.ii p. 259).
The authors of this paper maintain that Kelsen views the basic norm as a scientific product that has scientific
meaning but no normative validity. Thus the main argument against Kelsen’s basic norm concept is that such
(scientific) basic norms can only delegate a scientific qualification but no legal validity. We think that this is a
problem – a drawback of the Pure Theory. The scientific significance of the basic norm comes together with
normative validity.

10
 Is Ought

Basic norm
concept

Substrate: Meaning:
normative text valid legal act

Interpretation
scheme
Hypothesis

Figure 7. The interpretation of legal acts.

On the basic norm. Speaking about validity, Kelsen provides the example of the basic norm of Christian
morality and holds that “only a norm can be the reason for the validity of another norm”:
It is a ‘basic’ norm, because nothing further can be asked about the reason for its validity, since it is not
a posited norm but a presupposed norm. (Kelsen 1991, ch. 59.i.C p. 255)
Kelsen holds that the Basic Norm is “not a positive norm, but a merely thought norm (i.e. a fictitious norm), the
meaning of a merely fictitious, and not real, act of will”:
The cognitive goal of the Basic Norm is to ground the validity of the norms forming a positive moral or
legal order, that is, to interpret the subjective meaning of the norm-positing acts as their objective
meaning (i.e. as valid norms) and to interpret the relevant acts as norm-positing acts. This goal can be
attained only by means of a fiction. (Kelsen 1991, ch. 59.i.D p. 256)
On validity. Niklas Luhmann devotes a separate chapter to the concept of validity. He notes that “validity is not
a norm” and adds:
If one follows Kelsen the question is most often asked the other way around: what is the special status
of a basic norm in relation to validity – extra-legal, hypothetical, moral? (Luhmann 2004, p. 126)
On the basic norm and the transcendental argument see Stanley L. Paulson:
The distinction between ‘is’ and ‘ought’ implies altogether separate tracks for establishing, respectively,
the truth of empirical claims and, inter alia, the validity of legal norms. Tying the distinction between
‘is’ and ‘ought’ to the normativity thesis – in the manner of methodological dualism – is not to deny the
familiar distinction between ‘is’ and ‘ought’ associated with the separability thesis. … Where the
distinction is invoked on behalf of the normativity thesis, ‘ought’ flags legal norms, and ‘is’ gives
expression to facts; where it is invoked on behalf of the separability thesis, ‘ought’ flags norms of
morality, and ‘is’ gives expression to valid, i.e. existing, legal norms. (Kelsen 1992, p. xxxii)

5. Construction
Next is the structural interpretation involving scientific notions where Kelsen was very creative.

11
5.1. Double-norm (Doppel-Norm)

Kelsen makes a transition from the hypothetical norm concept to categorical norm; see (Kelsen 1967, § 25) and
Fig. 8.

Hypothetical norm Categorical norm

Condition Reaction To Do
if … then …
if … then it is commanded to …

commanded

Figure 8. Hypothetical and categorical norms.

The difference is not so easy to grasp and formalise in terms of (i) imputation and (ii) formal logic. Therefore
Kelsen devotes chapter 5 to explain this:
The difference between categorical and hypothethical norms is the difference between norms which
decree that a certain behavior is obligatory unconditionally and those which decree that a certain
behavior is obligatory only under certain conditions. (Kelsen 1991, ch. 5 p. 19)
Prosecutor A can demand that judge B punish C, who (in A’s opinion) committed theft; but the judge,
who is willing to punish thieves, can reject the prosecutor’s demand because the ‘ought-to-punish-C’ is
valid for the judge only if it his opinion that C has committed theft, and he is of the opinion that he has
not. He can decide: ‘C is not to be punished.’ What is lacking in this case is the condition for the ought-
to-punish. (Kelsen 1991, ch. 5 p. 21)
Kelsen summarizes: “All norms are valid merely conditionally.” (1991, p. 21) To explain the difference,
Manfred Moritz’s words are used:
If there is a conditional imperative ‘If it rains, go home!’, we can express the parallel judgment for
instance in the following way: ‘It is commanded to go home if it rains’. It should not be formulated so
as to say ‘It it rains, it is commanded to go home’. … The judgment which is parallel to a conditional
imperative does not state under which conditions the action is commanded, but under which conditions
the action ought to be performed. (Kelsen 1991, note 24 p. 290)
Kelsen adds:
The imperative is ‘conditional’, not because it is subject to a condition [bedingt], but because it sets a
condition [bedingend]. (p. 290)
Other norm concepts can also be proposed, see e.g. that of Luhmann (Fig. 9).

Condition Reaction Finality

Figure 9. Another concept of norm (Luhmann 2004).

12
In the chapter devoted to primary and secondary norms, Kelsen views a general legal norm as a combination of
them, a double norm:
[A] combination of two norms one of which decrees to be obligatory a certain behavior of the legal
subject, and the other the performance of a specific coercive act on the part of the legal organ in the
event of a violation of the first norm. I have called the latter norm the primary norm, and the former the
secondary norm. (Kelsen 1991, ch. 15 p. 56)

We show this in Fig. 9a.

Double general norm

E.g.

Secondary norm
OA ‘People are to refrain from committing theft;

if a court finds that someone has committed theft,

Primary norm
this judge is to posit an individual norm which
if ¬A then O sanction
decrees that this person is to be imprisoned’

Figure 9a. A double norm (Doppel-Norm) is a combination of the secondary and the primary norm.

5.2. Hierarchy of Norms

This section presents a bit more modern version of what Kelsen wrote. Constitution, law, statute and decision
form a hierarchy; see (Kelsen 1967, part V, especially § 35). This expresses governing by one state; see Fig. 10.
Kelsen speaks about a hierarchical structure of norms:
whose highest level is the constitution whose validity is founded on the presupposed Basic Norm, and
whose lowest level is made of the individual norms decreeing particular concrete behavior to be
obligatory. (Kelsen 1991, ch. 59.i.F p. 258)
EU primary law and EU secondary law form another hierarchy with the international law being above. Private
treaty appears on the bottom. Basic norm is above all and also in the mind.

13
 Basic norm

International law

EU primary law

EU secondary law
Constitution

Law

Statute

Decision

Private treaty

Figure 10. A hierarchical structure of norms.

5.3. Norm Monism

The legal order exclusively consists of norms (Fig. 11). Legal definitions are part of other norms.

Norm Norm
Norm Norm Definition
Norm
Norm
(a) (b)

Figure 11. (a) The legal order consists of norms. (b) Legal definitions are part of norms.
Another concept is that there are other legal elements such as indicative legal definitions, legal signs, etc.
(Fig. 12).

Indicative legal sentence Legal

Legal norm
sign

Figure 12. Another concept of the legal order: apart from norms there are other elements.
A formalisation of the legal order with one notion, the norm, makes the model very pure. This is useful to speak
on a high philosophical level. However, on lower levels of discourse, more notions would be helpful. For
example, legal theory distinguishes between norms to-do, norms to-be (see e.g. Sartor), etc. Other classifications
of norms are also possible.
In mathematics a formal theory can be formalised with a small number of axioms. Adding an axiom makes the
theory more specific and deleting – more abstract.

14
6. Purification – a Deconstruction
Kelsen’s approach to purification rests on a critical interpretation of other theories. This is a deconstruction of
the traditional legal theory.
Personality is a traditional key concept. In the Pure Theory of Law a person is only a quantity of rights and
duties (Fig. 13).

Traditional concepts of PTL: person as a quantity of

personality rights and duties

Person Person

Figure 13. A purification of the personality concept.

A traditional concept of institution comprises state, etc. In the Pure Theory of Law, institutions are only sets of
norms (Fig. 14). Therefore Kelsen devotes a separate chapter VI to law and state (1967, § 36 ff. esp. § 41b).

Traditional concepts of
PTL: institutions as norms
institutions

Norm

Norm
Entities like state Norm

Norm Norm

Figure 14. A purification of the institution concept.

An effect of the Pure Theory of Law is also that Kelsen put a new interpretation on traditional terms. State and
person are examples where this arises. This is not new in the history of jurisprudence. Both happen: on the one
hand adoption and, on the other, re-interpretation of previous terms and creating completely new terms. Guido
Tsuno investigates these issues at Chuo University in Tokyo within the project about legal lexicon; see (Tsuno
2011).

7. Apotheosis
Kelsen’s work entails a paradox. He tried to deconstruct and unmask the former juridical system especially the
personification of the state with a paternal face. However, on the other hand he tried to make a personification of
his own theory – an apotheosis with a female virgin image named Pure Theory of Law (Fig. 15). There are some
rhetorical indications in this direction (Lachmayer 1984).

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 Pure Theory of Law

Personification of jurisprudence

Figure 15. A personification of Kelsen’s theory – an apotheosis with a virgin female image.

8. Conclusions
The centerpiece of PTL is concerned in this paper and margins are set aside. Our thesis is that PTL deals with the
middle layer. It can also be shown that legal logic is assigned to the higher layer of abstraction, PTL to the
middle one, and individual decisions and laws to the lower layer. A relation to legal informatics is also an issue.
Ontologies are assigned to the higher layer.
Kelsen’s works are not written as textbooks for freshmen. To achieve deep understanding, studies of law could
help. It is also advised to read other books on legal theory. We hope that the paper can reach beyond legal
education.

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