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 THE PURE THEORY OF LAW.
PART II.'

IV.
28. The law, or the legal order, is a system of legal norms.
The first question we have to answer, therefore, is this: What
constitutes the unity in diversity of legal norms? Why does a
particular legal norm belong to a particular legal order? A
multiplicity of norms constitutes a unity, a system, an order,
when validity can be 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
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. the sovereign principle of
validity, we may distinguish two different kinds of orders, or
normative systems. In the first such system the norms are valid
by virtue of their content, which has a directly evident quality
compelling recognition. This contentual quality the norms
receive by descent from a basic norm to whose content their
content is related as particular to universal. The norms of
morals are of this character. Thus the norms: Thou shalt not
lie, Thou shalt not deceive, Thou shalt keep thy promise, etc.
derive from a basic norm of honesty. From the basic norm:
Thou shalt love thy fellow-men, we can derive the norms: Thou
shalt not injure thy fellow, Thou shalt accompany him in
adversity, etc. The question as to what, in a particular system
of morals, is the basic norm, is not here under consideration.
What is important is to recognize that the many norms of a
moral system are already contained in its basic norm, exactly
as particulars in a universal, and that all the individual norms
can be derived from the basic norm by an operation of thought,
namely, by deduction from universal to particular.
29. With legal norms the case is different. These are not
valid by virtue of their content. Any content whatsoever can be
legal; there is no human behaviour which could not function
1 The first part. of this article appeared in Vol. 50, p. 474. The translation
has been made by Mr. Charles H. Wilson to whom the editor's thanks are due.
518 The Law Quarterly Review. [No. CCIIL

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 a definite procedure and a definite rule. Law is valid
only as positive law, that is, statute (constituted) law. There-
fore the basic norm of law can only be the fundamental rule,
according to which the legal norms are to be produced; it is the
fundamental condition of law-making. The individual norms
of the legal system are not to be derived from the basic norm by
a process of logical deduction. They must be constituted by
an act of will, not deduced by an act of thought. If we trace
back a single legal norm to its source in the basic norm, we do
so by showing that the procedure by which it was set up con-
formed to the requirements of the basic norm. Thus, if we ask
why a particular act of compulsion-the fact, for instance, that
one man has deprived another 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 indivi-
dual norm is valid, the answer is, that it was constituted
according to the penal statute book. If we 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 autho-
rity. If, further, we ask as to the validity of the constitution,
on which repose all the laws and the acts which they have
sanctioned, we come p)robably to a still older constitution and
finally to an historically original one, set up by some single
usurper or by some kind of corporate body. It is the funda-
mental presupposition of our recognition 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 according to the method
and conditions prescribed by the first constitutional authority,
or its delegated power. This is the schematic formulation of
the basic norm of a legal order.
30. The Pure Theory of Law operates with this basic norm
as with an hypothesis. Presupposed that it is valid, then the
legal order which rests on it is valid also. Only under this pre-
supposition can we systematize as law (i.e. arrange as a system
of norms) the empirical material which presents itself for legal
recognition. On tie composition of this malerial (acts) will
depend also lhe particular content of the basic nomii. This norm
is only ain expression for the necessary presulmjosii ion of all
positivistic constructions of legal material. Iii fornmulating the
July, 1935] The Pure Theory of Law. 519

basic norm, the Pure Theory of Law in no way considers itself

as inaugurating a new scientific method of jurisprudence. It is
only trying to make conscious in the minds of jurists what they
are doing when, in seeking to understand their subject, they
reject a validity founded on natural law, yet affirm the positive
law, not as a mere factual assembly of motives, but as a valid
order, as Norm. With the theory of the basic norm, the Pure
Theory of Law is only trying to elucidate, by an analysis of the
actual procedure, the transcendental-logical conditions of the
historic methods of positive legal knowledge.
31. Just as the nature of law, and of the community which it
constitutes, stands most clearly revealed when its very existence
is threatened, so the significance of the basic norm emerges
most clearly when the legal order undergoes not legal change,
but revolution or substitution. In an hitherto monarchic State
a number of men attempt to overthrow by force the legitimate
monarchic government and to set up a republican form in its
place. If in this they are successful, if, that is, the old govern-
ment ceases and the new begins to be effective, in that the
behaviour of the men and women, for whom the order claims to
be valid, conforms in the main no longer to the old but to the
new order, then this latter is operated as a legal order, the acts
which it performs are declared legal, the conditions which it
proscribes, illegal. A new basic norm is presupposed-no longer
that which delegated legislative authority to the monarch, but
one which delegates such authority to the revolutionary govern-
ment. Had the attempt been a failure, had the new order, that
is, remained ineffective, in that behaviour did not conform to it,
then the acts of the new government become not constitutional
but criminal (high treason), not legislation but delict, and this
on the ground of the validity of the old order, which presupposed
a basic norm delegating legislative power to the monarch.
If we ask what, then, determines the content of the basic
norm, we find, on analysing judicial decisions back to their first
premiss, the following answer: The content of the basic norm
is determined by the condition of fact out of which the order
emerges, given that to the order there corresponds, amongst the
human beings to whom it refers, a substantial measure of actual
behaviour.
This gives us the content of a positive legal norm. (It is
not, of course, a norm of a State's legal order, but a norm of
international law, which, as a legal order superior to that of
the individual States, legally determines their sphere of juris-
diction.) This norm affirms (a) that a system of legal
520 The Law Quarterly Review. [No. CCII.

compulsion, which is direelly sutbordiniiate to illeurnational law,

shoul be regarded as legilimliate, or the coil uniiity constituted
by that systenii valid as a Stale, within that area inl which it
has established an effective sovereignty, ad (h) that, further,
a government which Ias voie to power iy revolution or Coup)
d'tat should equally be recog ized as a valid government in the
sense of international law, provided i hat it is in a position to
se'ure a substantial observance of the norms which it has set up.
Positive international law thus elevates the principle of efficacy
to the rank of a legal principle. This principle it is which
determines the basic 1orm1of tle iindividual State's legal order.
32. (a) This analysis of' Ihe funtion of the lhasic nor brings
to light also a special pecullarify of the law-I-1he law regulates
its own growth and its own making. The inity of the legal
order is a law-maki, q unity. The law is Jot a system of equal,
side-ly-side norms: it is a hierarn'iy withIi dilerent layers. Its
formal p.ttern is roughly the folhiwijig.
At the highest point of Ilie individual State's legal order is
the con stitution-i i the materia'l sense-the esseltial function
of whi ch is 1(o delermine the or-gans ad pro4cedure for the
setling il) of genieral law, to del ermi le legishdioll. The next
stage co osisis of the gellerl miolns, set upl) Iv legislatioln, whose
function, in turn, is to dve rmine not, only the organs and pro-
cedure (Courts and adiniisirative tribunals) for ile individual
norms, but also the content of the latter. 'The general norm,
which links an abstract: condition of fact to an equally abstract
consequence, if it is lo have any U)ea in g, needs to he indivi-
dualized. It must be known definitely whelher there is present
in. co'ncreto a condition of fact which lie general norm iln
abstrtwto regilates, and for this concrele case a coincrete act of
complsioni must he prescribed and carried out- his also accord-
ing to tile abstract general norm. The aget in this is the
judiil] decision, the .iidiial power. The judicial power is by
no means of a i)Itrely declaratory iath'e, such as the terms
laving downl ' auld ' iscerlai iog' the law sggest, as if in the
st tile, that is, the general iom, the law were already prepared
and conphlel 0, sinlplv waitilii for fle ('ourts 1) find it. The
fino eion of laying down Ilhe law is a rol)eilvY cistituiiive olie,
it is a iakiig of law iil I hv real sense of Ilie word. Tile rela-
tioislip 1(twevii the coicrlie condil ion oi' fact (and Ithe di.oovery
of its corriiespoiide'ice witl ille lisliact condition) and ille col-
crete hgal i'onse(ulievie is specifivalilv set 1p) by the judicial
diuisioi. . list as at1 Ihe "viel'al sI.age co dit iom aiid consequence
are joined I In , stautie, so at tei individual stage ti(\ are
July, 1935] The Pure Theory of Law.

joined by the judicial decision. The judicial decision is itself

an individual legal norm. It is the individualization or con-
cretization 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 identifying law with statute.
(b) Administration, no less than judicial decision, can be
shown to be concretization of statute law. Indeed, a consider-
able part of that which we normally call administration is not to
be distinguished functionally at all from that which we call
judicial decision or finding of the Courts, in so 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 behaviour 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 recklessness in adminis-
trative 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 characteristic 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 hospitals. This kind of direct administration is
indeed essentially different from judicial 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 apart, breaks up the legal apparatus into a number
of relatively isolated groups of tribunals which exercise for the
most part similar functions. The correct view of the difference
in function, the substitution for judiciary and administration of
direct and indirect administration, would not be without its
effects on the organization itself.
(c) In certain spheres of law, as for instance in civil law,
the concretization of the general norms (toes not follow directly
 The Law Quarterly Review. (No. CCIIH.

from the act of an official State instrument, such as is the judi-

cial decision. In the case of the civil law, which the Courts
have to apply, there is interposed between the statute and
the decision the legal transaction, which with respect to the
conditioning circumstance, has an individualizing function.
Directed by the statute, the parties set up concrete norms for
their mutual behaviour, an offence against which constitutes
the condition of fact to be determined by the judicial decision.
To this condition the judicial decision attaches the penal
consequence.
The final stage of this law-making process, which began with
the formation of the constitution, is the carrying out of the
compulsive act, the penal consequence.
(d) If we accept the validity not only of the single State's
legal order, but also of a multiplicity of such, co-ordinated and
legally delimited one from the other, and if we recognize that
it is positive international law that effects this co-ordination
and this delimitation, then we must view international law as a
legal order superior to that of the individual States, as an order
combining these latter into a universal legal society. In this
way we achieve the theoretic unity of all law, as a hierarchic
system of successive legal stages.
(e) Once this hierarchic character of law is grasped, it becomes
clear that the distinction between law-making, or legislation, on
the one hand, and execution or application of the law on the
other, has not the absolute character which traditional legal
theory attributes to it. The majority of legal acts are at once
legislative and judicial acts. With every such act a norm of
superior degree is put into execution and a norm of inferior
degree set up. Thus the first form of the constitution, that is,
a law-making act of the highest degree, is execution of the basic
norm; legislation, that is, the making of general norms, is
execution of the constitution; judicial decision and administra-
tive act, by which the individual norms are set up, are execution
of statute, and the compulsive act is execution of the administra-
tive order and the judicial decision. The compulsive act has,
however, a character of pure execution, just as the presupposed
basic norm has a character of pure legislation. Between these
two limiting cases, however, everything is at once legislation and
execution. In particular is this true of the legal transaction,
which ought not, as is traditional, to be opposed, as executive
act, to legislation as creative act. For legislation is equally
with the legal transaction both creation and application of
the law.
July, 1935] The Pure Theory of Law.

.
33. From this analysis of the hierarchic structure there
emerge several very significant deductions for the problem of
interpretation. This is a mental process which accompanies
law-making in its progress from the higher to the lower stages.
In the normal case, of interpretation of statute, the question to
be answered is how, from the general norm of the statute,
applied to a concrete condition of fact, we are to derive the
appropriate individual norm of the judicial decision or adminis-
trative act. There is also, however, interpretation of the
constitution, as, for instance, in legislation, emergency decrees
or other directly constitutional acts. Similarly, there is inter-
pretation of individual norms, judicial decisions, administrative
orders, legal transactions, etc. In short, there is interpretation
of all norms, in so far as they are to be put into effect, that is,
in so far as the law-making process is carried from stage to
successive stage.
34. The relation between a norm of superior and one of inferior
degree-between constitution and statute, statute and judicial
decision-is a relation of regulation or determination. The norm
of superior degree determines the act by which the inferior norm
is to be made. It determines not only the procedure for the
making of the norm, but eventually also its content. As
regards the relation between constitution and statute determina-
tion of procedure is primary, although determination of the
content of future statutes is not excluded. The constitutional
affirmation of fundamental rights is such an attempt to deter-
mine in advance, at least negatively, the content of statutes, in
that certain contents-interference with freedom and property-
are excluded. As regards the relation between statute and
judicial decision or administrative act, determination of content
and determination of procedure are equal. The individual norm
is determined alike as to its content, material, civil, penal,
administrative, and as to the procedure under which it is made.
This determination, however, is never complete. The norm
of superior degree cannot regulate in all directions the act by
which it is to be put into effect. There must always be a varying
degree of free discretion. The superior norm, in relation to the
act which is to put it into effect, has for the most part only the
character of a frame into which ,tbe act is to fit. Even the most
detailed order must leave open a multitude of provisions to be
filled in by the executive agent. If the organ A decrees that
organ B shall imprison the subject C, then organ B must use
 The Law Quarterly Review. (No. MCITI

its own discretion to determine where, when and how the im-
prisonment shall be carried out-provisions which depend on
external factors, which organ A has not and, for the most part.
could not have foreseen.
35. Thus we can say that every legal act, whether it be an
act of law-making or of pure execution, in which a norm is put
into effect, is only partially determined by that norm. That part
which is undetermined can refer either to the conditioning cir-
cumstance or to the conditioned consequence, that is, either to
the How or to the What of the act. This indeterminateness,
indeed, may even be part of the intention of the legislator. Thus
in setting up a purely general norm it is taken for granted that
the individual norm, which is involved in putting the general
norm into effect, should carry forward the process of determina-
tion, this process being the meaning of the hierarchic succession
of legal norms. The same is true in the case of delegation. A
public health statute ordains that in the event of an epidemic
certain precautions, to prevent the spread of the disease, are to
be taken by the inhabitants, on pain of some penalty or other.
The administrative body is empowered to determine the nature
of these precautions according to the different diseases. In the
case of a specific delict, the penal statute book provides for a
penalty by fine or loss of freedom and leaves it to the judge to
decide between these two alternatives in any concrete instance,
and to determine the size of the penalty. As to this last, an
upper and lower limit may be laid down in the statute itself.
36. Nevertheless, the fact that the legal act is not completely
determined may also be due to the form of the norm which it
is to put into effect. We are to consider here in the first place
the ambiguity of a word or of a sequence of words. The wording
of the norm has not simply one, it may have several possible
meanings. We have the same situation when the agent who is
putting the norm into effect professes to discover a discrepancy
between the wording of the norm and the will which the con-
stitutive authority desired to express. (We are not here
considering how this will can be determined. In any case it
must be open to the agent to deduce this will from other sources
than the wording of the norm, in so far as the latter is accepted
as an inadequate expression.) That the so-called will of the
legislator, or the intention of parties instituting a legal process,
may not correspond to the wording of a statute or of a process
is a contingencv universally recognized by traditional jurispru-
dence. The discrepancy may be complete or partial. Partial
when the will corresponds to at least one of the interpretations
July, 1935] The Pure Theory of Law. 525

of the wording. Finally, the indeterminateness of a legal act

can be the result of the fact that two norms may claim simul-
taneously to be valid, since they are contained in the same
statute, and yet may partially contradict one another.
37. In each of these cases the executive agent has several
possibilities of action. His action may conform to one or other
of the different interpretations of the wording, or to the will of
the legislator (to be ascertained somehow or other), or to one or
other of the mutually contradictory norms. (Or, again, these
contradictory norms may be looked on as cancelling each other.)
In each of these cases the executive norm constitutes a frame for
which there are several possible contents, whereby every act
appears as legal which keeps within the frame.
If by interpretation we mean determining the sense of the
norm which is to be put into effect, the result of that activity
can only be to determine the frame which is presented by the
norm, and we must, therefore, acknowledge the possibility of a
diversity of content within the frame. Interpretation of a
statute need not, then, inevitably lead to a single decision, as
the solely correct one, but may lead to several decisions, which
rank-in so far as they conform to the norm-as of equal value,
even though only one of them in the act of judicial decision
becomes positive law. That a judicial decision is founded on
statute means in truth nothing more than that it keeps within
the frame prescribed by the statute. It means not that it is the
only norm, but only that it is one of the norms possible within
that frame.
Traditional jurisprudence, however, believes that it is justified
in claiming from interpretation not only the determination of
the frame of the executive act, but also a further service, which,
indeed, it regards as chiefly important. Namely, interpretation
should develop a method to enable the correct content of the
frame to be precisely determined. The customary theory of
interpretation would have us believe that the statute as applied
to the concrete case must present always one, and one only
solution, the positive law correctness of which is itself grounded
in the statute. It describes this interpretation as if it were an
operation of the explicative reason, as if the interpreter had to
set in action simply his intellect, and never his will, as if by a
purely intellectual activity there could be selected from the-
several possibilities one positively legal, and in that sense correct
solution.
38. -Nevertheless, from a positive law standpoint, there is no
criterion on the basis of which one out of several possibilities.
526 The Law Quarterly Review. [No. CCIII.

can be selected. There is absolutely no method, which could be

characterized as positively legal, by which out of several mean-
ings of a norm only one can be shown to be ' correct '. Despite
every eflort, traditional jurisprudence has not hitherto succeeded
in deciding the conflict between will and expression in an objec-
tively valid fashion. Every method of interpretation hitherto
developed has led only to one possible, never to one necessarily
correct solution. Whether the emphasis be laid on the ' plain
meaning of the words ' or on the (generally problematical) legis-
lative intent, is, as far as positive law is concerned, a matter of
indifference. If the case is one of two valid norns contradicting
each other, then for positive law the three above-mentioned
possibilities stand on an equal footing. it is a vain endeavour
to try to ground the one 'juristically ' while excluding the
others. That the customary mieans of interpretation, by the
argiu.ienttin a contrario and an alogy, are wholly worthless
emerges clearly enough from the fact that both lead to opposite
conclusions and there is no criterion to decide which of them
shall be applied. The maxim also of the so-called evaluation
of interests is simply a formulation and not a solution of the
problem. It does not provide the objective standard necessary
to compare and decide between opposing interests. This stan-
dlard cannot be derived from-the norm to be interpreted, nor from
its parent statute, as is suggested by the theory of the evaluation
of interests. For the necessity of an ' interpretation ' is precisely
the result of the fact that the norm or system of norms to be
applied covers several possibilities, and gives no ground for a
final decision as to the comparative significance of the respective
interests, but leaves that rather to a future law-making act, as,
for example, the judicial decision.
39. The notion at the basis of the traditional theory of inter-
pretation, that the determination of the required leglal act, not
to be found in the norm, can be extracted from- existent law
by an operation of thought, is an illusory and contradictory
notion since it conflicts with the very presupposition of such
interpretation. The question as to which of a given number of
possible contents is the ' correct ' one is not a question of positive
law at all, it is a problem not of law but of law-and-politics.
The task of deriving from a statute the correct decision or the
correct adninistrative act is fundanentally the same as that of
endowing the constitution with a content of correct statute. One
can as little derive from the constitutioi the correct statutes by
interpretation as by interpretaiion from the statute derive correct
,decisions. Certainly there is a distinction between the two cases,
July,1935] The Pure Theory of Law. 527

but it is a quantitative, not a qualitative distinction-in that the

legislator is materially less conditioned in his operation than the
judge, is relatively more free to make law. But the judge is
also a law-maker and exercises that function in comparative free-
dom. For this reason the making of the individual norm,
involved in putting the general norm into effect, is a function
of the will. The 'scientific ' commentaries on the problem of
applying statute have a thoroughly legal-political character,
they are proposals for the Legislature to compare, attempts to
influence the law-making function of the Courts or of the
administrative tribunals. In so far as there is something more
to be elucidated, in the application of statute, than the frame
within which the future act is to be restricted, then it is an
elucidation not of positive law, but of other norms which im-
piuge at this point on the process of law-making. Norms of
morals, of justice, of social value-judgments-such as ordin-
arily appear in terms like the ' common good,' 'state interest,'
progress, etc. As to the validity and determination of such, the
positive law has nothing to say except negatively, namely, that
such considerations are not matter of positive law. As far as
the positive law is concerned the legal act is free, that is, within
the free discretion of the appointed agent. One might, indeed,
say that thus the ' meta-legal' norm (of morals, justice, etc.)
stands to the positive law in a relation of delegation. But that
is only to say that it has been transformed into a positive law
norm.
40. The view that interpretation is an elucidation of positive
law, and as such a procedure for deriving new from existing
norms, is the basis of the so-called ' Jurisprudence of Concepts
which the Pure Theory of Law rejects. The Pure Theory of
Law seeks to reverse the view that new norms can be made by
means of elucidation, a view whose ultimate source is the desire
to conceive the law as a fixed order determining human behaviour
in every direction, determining particularly the activity of the
organs applying the law, above all the Courts, so that the func-
tion of the latter, and therefore also of interpretation, appears
simply as the discovery, by a special procedure, of already
existent norms. It is the illusion of security in law which
traditional legal theory, consciously or unconsciously, seeks to
maintain.
41. A special r~le is assigned to interpretation in the case of
gaps (lactuac) in the law. There is no such thing, of course,
as a genuine gap, in the sense that a legal dispute could not be
decided according to the valid norms, owing to the omission of
 The Law Quarterly Review. [No0. MCIL

a provision directed to the concrete case. Every legal dispute

consists in a claim made by one party against another, and the
decision confirming or disposing of the claim depends on whether
the statute declares it a legal duty or not. As there cannot be
a third possibility, a decision is always possible, and on a statu-
tory basis. In the case of a decision disposing of the claim
the law is still applied. For in obliging persons to a specific
behaviour, the law permits, outside these obligations, freedom.
If one person claims from another a behaviour not laid down in
statute, then the latter person has by law a ' right ' to forgo that
behaviour-' right' in the sense of legally permitted freedom.
The law says not only that a person is obliged to a certain
behaviour (in so far as the negation of that behaviour is declared
to be the condition of the specific penal consequence), but also
that a person is free to do or not to do what he is not obliged to.
This negative norm it is which operates in a decision disposing
of a claim directed to a behaviour which is not a statutory duty.
When, however, we speak of a ' gap,' what we generally mean
is not, as the expression might deceive us into thinking, that a
decision is logically impossible for lack of a norm, but only that
the logically possible decision, confirming or disposing of the
claim, is felt, by the agent competent to decide, that is, to apply
the law, to be too inexpedient or too unjust, or so inexpedient
or so unjust, as to give rise to the impression that the legislator
could never have considered this case, and that, had he considered
it, would and could not have decided in this way. This impres-
sion may or may not be true-it is, at any rate, generally
problematical: in face of the constitutional obligation to apply
the law, however, it is of no importance. That law also, which
the executive agent thinks bad law, is to be applied, which is
to say nothing of the fact that what the one thinks bad the other
thinks good. The so-called 'gap ' is, therefore, nothing else
than the difference between the positive law and some other
order considered to be better, truer and juster. Only bv con-
fronting the positive law with some such order, and so revealing
its shortcomings, can we speak of any such thing as a 'gap'.
That such a gap cannot be filled by interpretation is obvious as
soon as its real nature has been grasped. The function of inter-
pretation is here not to apply the disputed norm, but on. the
contrary to sidetrack it and to put in its place a better, truer,
juster, in short, that norm which the legal agent desires. Under
a pretence of extending it, the original norm is set aside in the
process of its application and a new one substituted-a fiction
which has been found particularly useful when the alteration of
July, 1935] The Pure Theory of Law.

the general norm is for some reason difficult or impossible, per-

haps for the reason that it is a question of customary law, which
cannot be modified at all by a rational procedure, or that the
valid laws are held to be of holy or divine origin, or that the
legislative mechanism can only with difficulty or cannot at all
be moved.
42. Alongside gaps properly so-called, it is customary to
distinguish also technical gaps which, even by those who deny,
from a positivistic standpoint, the existence of gaps proper, are
held to be possible and to be capable of being filled in by inter-
pretation. Such gaps are supposed to occur when the legislator
has omitted to provide for something which, if the statute were
to be applicable at all, he should have provided for. Neverthe-
less, what is here called a technical gap must either be a gap in
the original sense of the word, that is, the difference between
positive law and desired law, or be that ambiguity which is due
to the frame character of the norm. The first is true when, for
example, a statute provides for certain duties in the case of a
purchase, but says nothing as to the incidence of the risk if the
goods sold should, independently of either party, be destroyed
before delivery. Yet it cannot be contended that the legislator
has here said 'nothing,' but only that he has not said that the
seller shall be free of the obligation to deliver the goods, or to
make good their non-delivery-a provision apparently very
acceptable to those who speak here of a gap in the law. Since
the statute defining the duty of a seller to deliver the goods
makes no exception for the above case, it lays down that the
seller carries the risk. The second is true when, for example,
a statute provides that a body shall be set up by election, but
does not specify any electoral procedure. That means that any
kind of election whatsoever-by majority vote or by proportional
representation, secret or public, etc.-is legal. The organ
entrusted with carrying out the election can determine the
electoral procedure according to its own discretion. That is,
the determination of procedure is delegated to an inferior norm.
Another example: A statute provides that a body, before it may
function, must be summoned to meet by its president and at the
same time lays down that the president is to be elected by the
body. But it does not provide for summoning the body when
there is no president. If this norm does not mean that in the
event of there being no president any method whatsoever of
meeting is legal, but can only mean that in that event also the
body must be summoned to meet by its president, then the body
cannot legally function at all. But even here there is no gap.
VOL. UX. 36
530 The Law Quarterly Review. [No. CC1II.

For the statute declares i'iat; the hidy mutast he so1ii anoated by its
presideit, eveii wieit it has inuc. Tie sliltal illI is case makes
a seniseless p'visiitt. Tlhat possibility, sit-e siatles are hIuman
work, is not ritled out. A norit can have a :Incaii "dess c(illelt.
Then, however, 110 almounit of interpretation can liiid a i,ii ing
in it.
43. Although, therefore, gaps in the law have ito theoretic
existence, ,he legislator, guided by a false theory, may assunme
their existen ce. As legislator he calk make provisiont, and not
seldom does so, for the case in wit.hl the stallite will 'ive no
gttidaitce for a decisioi, as tiier § t; of tihe Austriani aad § I of
the Swiss civil statte book. If the statute, as ill the Swiss
instam-e, empowers tihe jutdge ill the case of a gap to act as a
legislator, then it makes a delegatioi of power i the judge, in
cases where lie bolds lhe application of statitte to he insutport-
able, to decide not ac(:ordit, to statule, but accorditig to his own
discretion. The good legislator is not; il a poisition to reniounce
what in certain ciicumsta ces may be a i ecessary correction of
the statute. For lie must reckon befoteltamd with circumstances
which he catnnot specifically foresee; ills geueral niorms caii oilly
envisage typical cases. For that very reasi ie (attot hinself
clearly definte the cases iii which ie wills ilie judge, or the legal
executive, to take his place. If he ctttl] do so lie woul not
require such a service at all. There remaitis for limino other
way but to tranisfer a power (if discretion to the judge, with the
unavoidable daitger that the latter, as delegated legislator, may
go oat to decide cases in which the original hegislaitir would have
wished his statute to be appliedl-it wiich case, of course,
administrative conformity to statute, amd indeed the validity of
the general norms regulating the adminisiration of the law, are
at issue. The cetitre of gravity in law-makiitg shifts from the
general legislator to the idi(ividual legal administrator.
To confine this danger to its narrowest possible limits, the
delegation of power to ignore statute is so formulated that the
administrator shouhil liot h)e cotscious oif the exceptional autho-
rity which actually has ]een coiferred on bim. le is to believe
that lie can refrain from al)plyiiig statite only ill t:hose c'ases in
which it is strictly iiap1licable, siiiet it, does not; eoniii a rele-
vant provision. 1He is to believe uot, Iliat lie is fuuictionin as
a legislator, hut thalt lie is iakittg lie legislat 'tsplace. Phai
be is rel lv fttictioniag fully as a leisl:,lii is comealed from
him by the fiction of the ga). This coitstiou.-sl v or tti'oisciotisly
false firimia has Ilie elecl of testrict'ti.,- the tdiinistrator to
the most occasittal exercise of the freedom coiferred on himl.
July, 1935] The Pure Theory of Law.

The so-called 'gap in the law ' is a typical ideological formula.

Application of the law to the concrete instance is represented
as being in such cases a legal impossibility, although what is at
issue is simply a political expediency, a transference of discretion
to the administrator.
VI.
44. The doctrine of the hierarchic structure of law conceives
of law as in motion, in a continuous process of spontaneous self-
creation. It is a dynamic as distinguished from a static view
of law. The latter conceives the law as made, ignoring the
process of its creation and inquires only as to its validity, its
sphere of operation and so on. The central problem of legal
dynamics is the question of the different methods of law-making,
the forms of the law. If the essential function of the legal norm
is to oblige men to a specific behaviour, by attaching to the con-
tradictory, opposite behaviour a compulsive act (the so-called
penal consequence), then the decisive standpoint from which to
judge the process of law-making is this: Does the person, who is
to be the subject of the obligation, participate in the making of
the norm which is to impose the obligation upon him? Is the
obligation imposed with or without his willing?
We are concerned here with that distinction, usually described
as autonomy and heteronomy, which legal theory is accustomed
to apply chiefly in the sphere of public law, where it appears
as the distinction between democracy and autocracy, or republic
and monarchy, and is responsible for the customary classification
of the forms of the State. Nevertheless, that which we call the
form of the State is only a special case of legal form in general.
It is legal form, that is, method of law-making, at the highest
stage of law, the stage of the constitution. The 'form of the State'
designates the method, prescribed in the constitution, of making
the general norms. If by ' form of the State ' we mean merely
the constitution, as the form of legislation, and thus identify
the State with the form of general law-making, we commit our-
selves to the customary view of law as a system of general norms,
ignoring the fact that the individualization of the general norms,
the movement from abstract to concrete norms, must also fall
within the scope of law. To identify the form of the State with
the constitution is to make an a priori judgment of the law
included in statutes. The problem of the form of the State,
as a question of the method of general law-making, is character-
istic not only of the constitutional stage, but of every stage in
the law-making process and in particular of the different stages
 The Law Quarterly Review. [No. CCIIL1

of concretization-administrative act, judicial decision, legal

transaction.
45. As a specially characteristic example we may take that
fundamental distinction of modern legal science, the distinction
between public and private law. It is a matter of common
knowledge that hitherto there has been no adequate formulation
of this doctrine. On the commonest view it is a question of
classifying legal relationships. Private law is a relation between
equal subjects of the same legal standing. Public law is a rela-
tion between a superior and an inferior subject, between two
subjects, that is, of whom one has legally a higher value. The
typical public law relationship is that between State and subject.
Private law relationships are characterized simply as legal rela-
tionships, as relationships of ' rights,' in order to bring out the
distinction between them and public law relationships, which are
relationships of ' power ' or ' sovereignty '. Indeed the general
distinction between public and private law has a tendency to
merge into a distinction between legal and illegal, or semi-legal
power, a distinction between State and law.
If we look more closely into the real grounds of this recogni-
tion of superior value in certain subjects, and their elevation
over others, it becomes clear that it is a question of distinguish-
ing between different law-making factors. The regulative
distinction is the same as that which lies at the basis of the
classification of State forms. The superior legal value attri-
buted to the State, or its organs, consists in this: that the law
confers on those persons, qualified as agents of the State (the
so-called organs of sovereignty), the power to impose obligations
by a unilateral expression of will (command). A typical
example is the administrative order, an individual norm set up
by the administrative organ, by which the norm addressee is
legally obliged to a behaviour consistent with the norm. On
the other hand, a typical private-law relationship is the legal
transaction, especially the contract, that is, an individual norm
contractually set up, which legally obliges the contracting
parties to a mutual behaviour. While in the latter instance the
subjects of the obligation participate in making the norm which
obliges them (this is the essence of contractual law-making), in
the former the subject of the obligation has not the slightest
part in the making of the norm. It is a typical case of auto-
cratic law-making. The private law contract on the other hand
is an explicitly democratic method. The older theories have
justly described the sphere of the legal transaction as that of
private autonomy.
Jfuly, 1935] The Pure Theory of Law.

46. If the decisive distinction between private and public law

is one between methods of law-making, if the so-called public
acts of State are legal acts of the same kind as private legal
transactions, then, it is clear, the expression of will is in both
cases simply a continuation of the process of expressing the
State's will. Both sovereign command and private legal
transaction are simply individualization of a general norm,
administrative or civil. It does not, therefore, appear so much
of a paradox when the Pure Theory of Law, proceeding from its
universalistic standpoint, envisaging always the unity of the
law as expressed in the so-called will of the State, perceives
equally in the private legal transaction and in the sovereign
command an act of State, that is, a law-making factor, implying
a unified legal order.
In so doing the Pure Theory of Law makes relative the tradi-
tionally absolute distinction between private and public law
and transforms it from an extra-systematic distinction (that is,
from a distinction between law and not law, law and State) into
an intra-systematic one. Further, in so doing, it maintains its
claim to be called a science, in that it removes the ideology
which made the distinction between public and private law an
absolute distinction between might and law, or at least State-
might and law-which distinction gave the impression that the
sphere of public law alone, and not that of private law, was
the arena of political power, and hindered the recognition that
the ' private ' law of contracts was no less political in character
than the public law of the statute book or of the administration.
That which we call private law, viewed from the standpoint of
its functional position in the whole system of the law, is only a
special legal form corresponding to a capitalist economy, to
capitalist production and distribution; it has an eminently
political function. For a socialist economy another legal form
would be necessary, not an autonomous democratic form, such as
is our present private law, but probably a heteronomous, auto-
cratic form, more in the nature of our present administrative
law. Whether this would be a better or juster form is another
consideration, which the Pure Theory of Law neither will nor
can decide.

VII.
47. In the traditional distinction between public and private
law there emerges clearly that powerful dualism which dominates
modern legal science, the dualism of State and law. Tradi-
tional legal theory regards the State as something essentially
 The Law Quarterly Review. [No. MIT,

different from the law and yet at the same time declares it to be
a legal thing. It achieves this position by regarding the State
as a person to whom it ascribes an existence independent of the
legal order. Just as private law theory originally held it to be
true of the legal personality of the individual that it was prior
logically and in time to the objective law, so political theory
holds it to be true of the State that, as a collective unity, as a
being capable of willing and acting, it precedes and is indepen-
dent of the law. But, we are told, the State fulfils its historic
mission by making the law 'its ' law, by creating the objective
legal order only to subordinate itself to it, thus by its own law
imposing obligations on and justifying itself. Thus the State
is a 'meta-legal' being, a kind of mighty macroanthropos or
social organism, at once the presupposition of the law and its
confirmation, since it itself is a legal subject with legal rights and
duties. This is the celebrated theory of the auto-determinism of
the State, which despite its demonstrable, and frequently
demonstrated contradictions, persists with unexampled tenacity.
48. Traditional legal and political theory dare not renounce
this doctrine, this dualism of State and law, for it performs an
ideological function of a quite exceptional significance. The
State must be presented as a person different from the law, in
order that the law may justify the at once creative and submis-
sive State. And the law can only justify the State if it is
presumed to be a right and just order fundamentally different
from the State, whose original nature is force. Thus the State
is transformed from a mere agent of force into a legal entity
which is justified by its administration of law. According as
the religious, metaphysical justification of the State became
ineffective, this Legal State theory came to afford the only
possible justification of the State. The effect of the 'theory'
was not diminished by the contradictory nature of a State which
was at once a juristic person, an object of legal knowledge, and
a being, fundamentally different from the law, whose nature was
force, that is, a being who could not be legally conceived at all.
49. The Pure Theory of Law views the State as a system of
human behaviour, an order of social compulsion. This compul-
sive order is not different from the legal order for the reason that
within one community only one and not two compulsive orders
can be valid at the same time. Every expression of the life of a
State, every act of State, is a legal act. A human act is only
designated an act of State by virtue of a legal norm which quali-
fies it as such; on the basis of the norm the act is imputed to the
State, is related to the unity of the legal order. The State as
July, 19351 The Pure Theory of Law.

person is simply the personification of the law; as force, it is its

efficacy. The dualism of State and law is one of those tauto-
logies which double the object of knowledge-the mind first
constitutes the object into a unity and then the unity itself is
envisaged as a separate object. There is here an exact parallel,
from an epistemological point of view, with the equally contra-
dictory dualism of god and world. The legal dualism is simply
a reflection of and substitute for the theological, with which it
has substantial identity. When we have grasped, however, the
unity of State and law, when we have seen that the law, the
positive law (not justice), is precisely that compulsive order
which is the State, we shall have acquired a realistic, non-
personificative, non-anthropomorphous view, which will
demonstrate clearly the impossibility of justifying the State by
the law, just as it is impossible to justify the law by the law
unless that term be used now in its positive sense, now in the
sense of right law, justice. The attempt to justify the State
by law is vain, since every State is necessarily a legal State.
Law, says positivism, is nothing but an order of human compul-
sion. As to the justice or morality of that order, positivism
itself has nothing to say. The State is neither more nor less
than the law, an object of normative, juristic knowledge in its
ideal aspect, that is, as a system of ideas, the subject-matter of
social psychology or sociology in its material aspect, that is, as
a motivated and motivating, physical act (force).
50. To resolve the dualism of State and law in this way,
however, is also completely to destroy the present, very signifi-
cant ideology of justification. Hence the passionate resistance
offered by traditional theory to the Pure Theory of Law thesis
as to the identity of law and the State.
In rejecting a justification of the State by the law, the Pure
Theory of Law does not imply that no such justification is
possible. It only denies that legal science can perform that
office. Indeed, it denies that it can ever be the task of legal
science to justify anything. Justification implies judgment of
value, and judgment of value is an affair of ethics and of
politics, not, however, of pure knowledge. To the service of
that knowledge legal science is dedicated.
HANS KELSEN.