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51 LQRev 517
51 LQRev 517
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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
.
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
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.
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.