Ratio Juris. Vol. 14 No.

1 March 2001 (47±63)

Hans Kelsen's Doctrine of

Imputation
STANLEY L. PAULSON*

Abstract. First, the author examines the traditional doctrine of imputation. A look at
the traditional doctrine is useful for establishing a point of departure in comparing
Kelsen's doctrines of central and peripheral imputation. Second, the author turns to
central imputation. Here Kelsen's doctrine follows the traditional doctrine in attrib-
uting liability or responsibility to the subject. Kelsen's legal subject, however, has been
depersonalized and thus requires radical qualification. Third, the author takes up
peripheral imputation, which is the main focus of the paper. It is argued that with
respect to the basic form of the law, exhibited by the linking of legal condition with
legal consequence, peripheral imputation counts as an austere doctrine, shorn as it is
of all references to legal personality or the legal subject. If Kelsen's reconstructed legal
norms are empowerments, then the austere doctrine of peripheral imputation cap-
tures the rudiments of their form, exactly what would be expected if peripheral
imputation does indeed serve as the category of legal cognition. Finally, the author
develops the puzzle surrounding the legal ``ought'' in this context. Although Kelsen
talks at one point as though the legal ``ought'' were the peculiarly legal category, the
author submits that this is not the best reading of Kelsen's texts.**

Introduction
Hans Kelsen's doctrine of imputation serves as the a priori category of legal
cognition in his Pure Theory of Law. (I say ``arguably,'' for there is a second
contender here, Kelsen's legal ``ought''Ða point to which I return below.)
Despite its importance, the doctrine is poorly understood. Among commen-
tators, the tendency has been to interpret it along lines familiar from the
philosophical tradition (see, e.g., Wolff 1934, vol. 1, 147), and, to be sure, one
of Kelsen's doctrines of imputation, central imputation, does reflect the trad-
itional doctrine, though only in part. Kelsen's other doctrine, what he calls
* I am grateful to my good friends in KielÐRobert Alexy, Martin Borowski, Carsten Heidemann,
Carlos Bernal Pulido (now back in Salamanca), and Peng-Hsiang Wang (now in Leipzig)Ðfor
helpful discussion on Zurechnung or imputation. For many valuable suggestions, I am also
grateful to Bonnie Litschewski Paulson.
** Abstract by Antonino Rotolo.

# Blackwell Publishers Ltd 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
48 Stanley L. Paulson

peripheral imputation, is in fact radically distinct from the traditional doctrine,

however, and it is peripheral imputation, in Kelsen's theory the more
fundamental of the two doctrines, that is at issue here.1 While the language
of central imputation and peripheral imputation might suggest at first
glance that the former is the more fundamental doctrine, the labels ``central''
and ``peripheral'' do not reflect Kelsen's estimate of the relative importance
of the respective doctrines.
In his important explication of the doctrine of peripheral imputation in the
First Edition of the Reine Rechtslehre or Pure Theory of Law, Kelsen begins
with the idea of the legal norm, understood as expressing
the specific linking of a conditioning material fact with a conditioned consequence.
The legal norm becomes the reconstructed legal norm, which exhibits the basic
form of the law. Just as the law of nature links a certain material fact as cause with
another as effect, so the law of normativity links legal condition with legal conse-
quence (the consequence of a so-called unlawful act). (Kelsen 1992, sec. 11(b), 23,
trans. altered)2

From this motifÐthe reconstructed legal norm as exhibiting the basic form
of the lawÐKelsen turns to peripheral imputation itself:
If the mode of linking material facts is causality in the one case, it is imputation in the
other, and imputation is recognized in the Pure Theory of Law as the particular
lawfulness, the autonomy, of the law. Just as an effect is traced back to its cause, so
a legal consequence is traced back to its legal condition. The legal consequence,
however, cannot be regarded as having been caused by the legal condition. Rather,
the legal consequence (the consequence of an unlawful act) is linked by imputation to
the legal condition. That is what it means to say that someone is punished ``because''
of a delict, that a lien against someone's property is executed ``because'' of an unpaid
debt. (Ibid., sec. 11(b), 23±4, trans. altered; see also MacCormick 1984±85, 5)

In short, Kelsen would have us understand the doctrine of imputation by

analogy to the principle of causality. What is more, the doctrine of
imputation reflects the basic form of the law, with imputation linking legal
condition with legal consequence, the very linkage marked by Kelsen's
reconstructed legal norm. Going beyond the quotation, there remains the
vexing question of the role played in this context by Kelsen's legal ``ought''
or Sollen.
I take up these and related issues in what follows. With an eye to setting
the stage, I begin with the traditional doctrine of imputation, the focal point

1
It is Kelsen's doctrine of peripheral imputation to which Hans J. Wolff is referring; see my
reference in the text on the previous page.
2
The correct reading of ``Rechtsgesetz'' juxtaposed, as here, with ``Naturgesetz'' is ``law of
normativity'' (contrasted, then, with ``law of nature''). The change reflects the reading of the
same terminology, juxtaposed in the same way, in Kelsen's ``Foreword to the Second Printing
of Main Problems in the Theory of Public Law.'' See Kelsen 1998, 5. Bonnie Litschewski Paulson
and I are grateful to Stephan Hammer (Vienna) for valuable advice on the rendition of these
terms.

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 Hans Kelsen's Doctrine of Imputation 49

of section I. A look at the traditional doctrine is useful in establishing what is

understood by imputation generally and useful, too, as a point of departure
in comparing Kelsen's doctrines of central and peripheral imputation. I turn
in section II to central imputation. Here Kelsen's doctrine follows the
traditional doctrine in attributing liability or responsibility to the subject.
Kelsen's legal subject, however, has been depersonalized and so requires
radical qualification. I turn in section III to peripheral imputation, my main
focus in the paper. I argue that with respect to the basic form of the law,
exhibited by the linking of legal condition with legal consequence,
peripheral imputation counts as an austere doctrine, shorn as it is of all
reference to legal personality or the legal subject. If Kelsen's reconstructed
legal norms are empowerments, as I have argued elsewhere (see Paulson
2000a, 139±54), then the austere doctrine of peripheral imputation captures
the rudiments of their form, exactly what would be expected if peripheral
imputation does indeed serve as the category of legal cognition. In addition
to this point, I offer a handful of remarks on peripheral imputation qua
``relative a priori category for comprehending empirical legal data,'' as
Kelsen puts it (Kelsen 1992, sec. 11(b), 24±5).3 A fully developed statement
of these issues, taking into account the neo-Kantian background of
Kelsen's legal theory, is a matter for a separate study. Finally, I develop in
section IV the puzzle surrounding the legal ``ought'' in this context.
Although Kelsen talks at one point as though the legal ``ought'' or Sollen
were the peculiarly legal category, I argue that this is not the best reading
of Kelsen's texts.
Where the traditional doctrine of imputation is concerned, I am drawing,
above all, on Kant's doctrine, which is representative of the traditional
doctrine as it is understood in both morality and the law. Here I am deeply
indebted to Joachim Hruschka's work. Indeed, the sketch of the traditional
doctrine that follows, in section I, is by and large a restatement of aspects of
what Hruschka has set out in considerable detail in various publications.4

I. The Doctrine of Imputation in the Tradition: Kant's Theory

In the Introduction to the Metaphysics of Morals, whose First Part is also
known under the title Metaphysical Elements of Legal Theory,5 Kant writes:
Imputation (imputatio) in the moral sense is the judgment whereby someone is deemed
the author (causa libera [``free cause'']) of an event, which thereupon is called a deed
(factum) and is subject to laws. If the judgment also carries with it the legal
consequences of this deed, it would be a legally binding or valid imputation

3
To be sure, with this language Kelsen is stating that the legal ``ought,'' not peripheral
imputation, is his relative a priori category. I take up the problem in section IV.
4
I have in mind, in particular, Hruschka 1986, but see also Hruschka 1976, 1984, 1991.
5
Metaphysische AnfangsgruÈnde der Rechtslehre. Bernd Ludwig has edited the Rechtslehre anew,
with important corrections in the heretofore defective text, see Kant 1986. See also Ludwig 1988.

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50 Stanley L. Paulson

(imputatio iudiciaria s. valida), but otherwise it would be simply an imputation passing

judgment (imputatio diiudicatoria). (Kant 1965, 29, trans. altered, emphasis in original)6

It is well to begin by clarifying several key expressions in Kant's text. The

phrase ``author _ qua [`free cause'] of an event'' marks a presupposition of
imputation, namely, that the agent acted freely. As Kant writes: ``We impute
something when it is simply ascribed to a person, i.e., when it is conceived
of as having originated freely'' (Kant 1934, Reflexion 6775, 157, quoted in
Hruschka 1986, 674).7
Next, in the same sentence of Kant's text, there is the expression ``event,''
offered as a rendition of Kant's expression ``Handlung.'' Hruschka (1986, 673,
n. 21) argues that although ``Handlung'' is ordinarily translated as ``act'' or
``action,'' it should be rendered as ``event'' here, for Kant is using it just as
Christian Wolff had used ``actio'' in the very same context, distinguishing
actiones naturales vel necessariae or mere physical events from actiones liberae
or events qua commissions of an act (ibid., 672, n. 17). The distinction reflects
the interest of both Wolff and Kant in having the identification of something
as an act turn on its being ascribed or imputed to a subject.
Just as ``Handlung'' is to be read as ``event,'' so Kant's ``factum'' is to be read
not as ``fact,'' but as ``act or deed,'' a reading that is clear from Kant's own
text. It is not without interest that here, too, Wolff's text runs parallel to
Kant's. As Hruschka shows, Wolff distinguishes between ``factum
commissionis'' and ``factum omissionis,'' that is, between the commission and
the omission of an act (see ibid.). Neither expression would make sense if
``factum'' were understood as ``fact.''8
Finally, how is Kant's phrase at the end of the first sentence, namely, ``is
subject to laws'' (``unter Gesetzen steht''), to be understood? Once again,
Wolff's treatise proves helpful. He writes: ``One who applies a law to any
particular deed judges whether or not the deed corresponds to the law''
(Wolff 1738, sec. 598 scholium, quoted in Hruschka 1986, 673). The same
point is elaborated by Kant. In the paragraph directly following the
quotation from the Introduction to the Metaphysics of Morals, he writes:
What someone does [_] beyond what he can be compelled to do by the law is
meritorious (meritum); what he does that simply conforms to the law is obligation
(debitum); finally, what he does that is less than the law requires, is moral demerit
(demeritum). The legal effect of a demerit is punishment (poena), of meritorious

6
Kant's own text reads: ``Zurechnung (imputatio) in moralischer Bedeutung ist das Urteil,
wodurch jemand als Urheber (causa libera) einer Handlung, die alsdann Tat (factum) heiût und
unter Gesetzen steht, angesehen wird; welches, wenn es zugleich die rechtlichen Folgen aus
dieser Tat bei sich fuÈhrt, eine rechtskraÈftige (imputatio iudiciaria s. valida), sonst aber nur eine
beurteilende Zurechnung (imputatio diiudicatoria) sein wuÈrde'' (Kant 1907, 227; cp. Kant 1986, 25).
7
Kant's own text reads: ``[W]ir rechnen es (etwas) zu, wenn es simpliciter zugeeignet, d.i. als
aus Freyheit entsprungen vorgestellt wird'' (Kant 1934, Reflexion 6775, 157).
8
Again following Hruschka, this reading is reinforced by the original meaning of Kant's Latin
expression ``factum,'' the perfect participle of ``facere,'' ``to do,'' meaning ``deed.'' See Hruschka
1986, 672, n. 17.

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 Hans Kelsen's Doctrine of Imputation 51

conduct, reward (praemium) [_]; the conformity of conduct to obligation has no legal
effect at all. (Kant 1965, 29, trans. altered, emphasis in original)9

Kant is saying in effect that the application of a law to a particular act or

deed will always result in one or another of three possible conclusions:
either the act (1) goes beyond what the law requires, (2) simply conforms to
what the law requires, or (3) falls short of what the law requires (see
Hruschka 1986, 677±8). By the same token, Kant is arguing, the act is
either (1) supererogatory, that is, meritorious, (2) adequate to the law, that
is, obligatory, or (3) blameworthy, that is, demeritorious (see ibid., 668; and
see generally Baron 1995, chap. 1). The judgments respecting reward,
absence of legal effect, or punishment follow straightaway, then, from the
initial judgment respecting the application of the law to the act.
Thus, it is clear that two leitmotifs are closely associated with the tra-
ditional doctrine of imputation. First, an event is ascribed or imputed to an
individual, its author or originator,10 and in virtue of this ascription or
imputation, the event is properly understood as an act or deed for which
that individual is responsible. Second, this act or deed is subject to laws, by
appeal to which the legal effect of the act may be adjudged.

II. Kelsen's Doctrine of Central Imputation

In a comparison of Kelsen's doctrine of central imputation with the
traditional doctrine, one fundamental difference can scarcely be overlooked.
Whereas the traditional doctrine, in both the legal and the moral context, has
it that liability or responsibility is attributed to a subject qua natural person,
that is, human being, Kelsen rejects the natural person as a possible candi-
date for the legal subject. And he goes on to reject the fictitious legal person
as a possible candidate, too. What is left? In Kelsen's view, the attribution is
made to imputation itself. This may seem paradoxical to say the least, but it
makes good sense if one takes the process/product distinction as the point
of departure. That is to say, Kelsen looks to the products of the process of
imputation, namely, to past attributions representing ``points of imputation''
that, when brought together, count as ``legal subsystems,'' clusters of legal
positions.11 It is to a legal subsystem or cluster of legal positions that the
attribution is made (see Kelsen 1925, sec. 13(d), 65±6; 1992, sec. 25(b), (d),
48±9, 50±1).

9
Kant's own text reads: ``Was jemand [_] mehr thut, als wozu er nach dem Gesetze
gezwungen werden kann, ist verdienstlich (meritum); was er nur gerade dem letzteren angemessen
thut, ist Schuldigkeit (debitum); was er endlich weniger thut, als die letztere fordert, ist moralische
Verschuldung (demeritum). Der rechtliche Effect einer Verschuldung ist die Strafe (poena); der einer
verdienstlichen That Belohnung (praemium) [_]; die Angemessenheit des Verfahrens zur
Schuldigkeit hat gar keinen rechtlichen Effect'' (Kant 1907, 227; cp. Kant 1986, 26±7).
10
Or, in the case of vicarious liability, imputed or ascribed to another. See Kelsen 1992, sec. 13, 27.
11
On ``legal positions,'' see Hohfeld 1919; and Alexy 1985, 171±224.

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52 Stanley L. Paulson

What criterion is at work in identifying points of imputation as belonging

to this or that particular cluster of legal positions? More often than not, it
will be the natural personÐhe or she who lays claim to the legal positions
in question. But if this is so, is Kelsen's rejection of the natural person
intelligible? It is indeed, he answers, for he is rejecting the natural person
only in so far as it would count as an entity found inside the legal system.
For Kelsen, the natural person stands outside the legal system, correspond-
ing to a legal subsystem or cluster of legal positions found inside the system
(see ibid., sec. 25(a), 47±8).
To appreciate what Kelsen is about here, it is well to begin with the general
problem of identifying the legal subject. The problem is familiar from a long
juridico-scientific debate that began, in European legal science, with
Friedrich Carl von Savigny. In his System des heutigen roÈmischen Rechts,
Savigny put the question that would serve as leitmotif for the debate over
the better part of a century: Who is the legal subject? (Savigny 1840, vol. 2,
sec. 60, 1). The paradigm shift wrought by Savigny's deliberations on this
question is noted by Otto von Gierke: ``Departing from the merely collective
`moral person''' of the past, Savigny moves ``a self-contained artificial
individual, under the rubric of `legal person','' to the forefront of the private
law (Gierke 1895, vol. 1, 464).12 Gierke underscores the role in Savigny's work
of the ``artificial'' or fictitious legal person, the new element in the matrix.
Equally important for the debate that followed, however, is Savigny's
starting point. His initial answer to the question of the identity of the legal
subject stems from outside the legal system. The legal subject, in a word, is
the natural person or human being: ``All law exists for the sake of the moral
freedom inherent in every individual human being. Therefore, the original
concept of the person or legal subject must coincide with the concept of the
human being'' (Savigny 1840, vol. 2, sec. 60, 2; see ibid., vol. 1, sec. 52, 331±2).
Then, in the move noted by Gierke, Savigny extends legal capacity, initially
established as ``coinciding with the notion of the individual human being,''
to ``artificial subjects admitted by means of a pure fiction'' (ibid., vol. 2, sec.
85, 236).
The doctrine of the fictitious legal person leads to anomalies, a point that
Savigny himself develops. Given that the legal person is fictitious, there can
be no question of attributing human will or human acts to it. What, then, of
property rights? They are acquired by means of acts, but acts ``presuppose a
thinking and willing being, an individual human being, precisely what legal
persons qua pure fictions are not.'' The result is an anomaly, the ``internal
contradiction,'' as Savigny puts it, of a subject's having ``the capacity to hold
property rights but being unable to satisfy the requisite conditions for
acquiring them'' (ibid., sec. 90, 282). Savigny purports to resolve the anomaly
by appealing to the idea of representation: Standing in for the fictitious

12
On the earlier concept, that of ``moral person,'' see Denzer 1977.

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 Hans Kelsen's Doctrine of Imputation 53

person, a natural person must perform the required acts. But this solution
merely gives rise to another anomaly, namely, that the acts actually per-
formed by the representative are attributed to the fictitious legal person as its
own acts. In Savigny's words, the ``real existence'' of the legal person ``rests on
the representative will of certain individual human beings, and, thanks to a
fiction, it is this will that counts as the legal person's own will'' (ibid., sec. 94,
312). Thus, the legal person acquires an ``artificial will'' (ibid., sec. 94, 316).
These anomalies and others stemming from Savigny's doctrine set the
stage in German legal science for a protracted debate on the status and
role of the legal person generally. The problem at issue might be termed
the duality problem, generated by a pair of radically distinct candidates for
the title ``legal subject''Ðthe natural person or human being and the ficti-
tious legal person.
Kelsen's response to the duality problem is two-fold. His first step is to
reject outright the natural person as a possible candidate for legal subject,
leaving only the fictitious legal person, a single concept rather than a duality
of concepts. To couch Kelsen's resolution in the parlance of the tradition,
however, is not stricto sensu correct. For, having eliminated the possibility of
the natural person as legal subject, he takes a second step, eliminating the
candidacy of the fictitious legal person, too, and offering in its place ``points
of imputation,'' ``conceptually constructed points of normative reference,''
and the like (see Kelsen 1911, 71±8, 121±46, 183±7, 517±20, 707±9; 1925, sec.
10(c), 48±51, sec. 13(d), 65±6, sec. 45(a), (b), 71±2, sec. 43(a), 310±11). I take up
these developments briefly in turn.
Kelsen's rejection of the natural person as a candidate for legal subject
stems from his far-reaching interpretation of methodological dualism,
which he knew from the fin de sieÁcle Heidelberg neo-Kantians and Georg
Simmel. Sometimes, as in a formulation of Simmel's, methodological
dualism appears to be nothing other than a restatement of David Hume's
justly famous doctrine on the fallacy of deriving ``ought'' from ``is.'' Simmel
writes: ``That we ought to do this or thatÐif it is supposed to be logically
demonstratedÐcan be shown only by means of the appeal to another
``ought,'' presupposed as certain'' (Simmel 1892±93, vol. 1, 12, quoted in
Kelsen 1911, 8, Kelsen's emphasis). Formulations like Simmel's represent a
point of departure for Kelsen, and his own understanding of methodological
dualism goes a good deal further. Distinct explanatory and normative
modes of cognition (see Windelband 1884; and Kelsen 1911, 4) are tied to
distinct spheres or ``worlds,'' the external, physical world and a normative
or ideal sphere. These are, for Kelsen, completely independent and
epistemologically unbridgeable.
The opposition between Sein and Sollen, between ``is'' and ``ought,'' is a logico-formal
opposition, and in so far as the boundaries of logico-formal inquiry are observed, no
path leads from one world to the other, the two are separated by an unbridgeable
gap. (Ibid., 8; see also Heidemann 1997, 24±6)

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54 Stanley L. Paulson

This ``two-worlds theory'' is evident in the work of some of the neo-

Kantians. For example, it was developed at length by Heinrich Rickert, who,
unlike Kelsen, did attempt to build a bridge between the two spheres (see
e.g., Rickert 1921, chap. 5).
Armed with this expansive version of methodological dualism and deter-
mined to purify a legal science infested with elements of naturalism and
psychologism, Kelsen's emphatic rejection of the natural person as a pos-
sible candidate for legal subject comes as no surprise.
Kelsen rejects the fictitious legal person as a possible candidate, too,
though his rejection on this front is less thoroughgoing. His primary con-
cern here is to avoid anthropomorphization. Despite its value as a heu-
ristic device in some contexts, Kelsen decries as a source of confusion the
anthropomorphizing tendency of his predecessors, not least of all Carl
Friedrich von Gerber. Gerber's remarkable transfer of the constructivist
method of private law Pandectism to public law includes the transfer of
the private law doctrine of the legal person to the state. Legal science
``invests the commonwealth with personality.'' And just as this legal con-
struction is available to private law, so also ``it is available to public law
for shaping the legal form of the powers of the state'' (Gerber 1869, 219,
emphasis in original).
In applying the private law concept of the legal person to public law,
Gerber appears to be following to the letter Savigny's notion of the fictitious
legal person. In particular, like Savigny before him, Gerber appeals to the
notion of representation, introducing state organs to act on behalf of the
state and thereby to represent it. ``As with every legal person, the state, too,
requires a representative through which the abstract power of will ascribed
to the state becomes concrete act'' (ibid., 225).
In Gerber's scheme, however, the state qua legal person is not the fictitious
legal person of Savigny's doctrine. Rather, the will ascribed to the state by
way of representation is reified by Gerber as a so-called ``general will.'' And
Gerber explicitly rejects the notion that the general will might be understood
as an aggregate of the wills of, say, the majority of the state's citizens. He
rejects, too, the notion that ``the personality of the state'' might fall within
``the category of the legal person of private law.'' Rather, ``the personality of
the state is unique,'' bearing no relation whatever to other concepts in the
law (Gerber 1865, 9±10).
Kelsen is reacting to anthropomorphizing tendencies like theseÐthe state
qua legal person and a reified doctrine of general willÐwhen, at the high
point of his long, classical phase, he writes:
The assumption that the legal person is a reality different from individual human
beings, a reality curiously imperceptible to the senses or a supra-individual
social organism made up of individual human beingsÐthis is the naive hypo-
statization of a thought, of a heuristic legal notion. (Kelsen 1992, sec. 25(b), 49, trans.
altered)

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 Hans Kelsen's Doctrine of Imputation 55

He believes that by replacing the fictitious legal person with a cluster of

imputative concepts, he avoids the danger of anthropomorphization.
In short, what had begun, in Savigny's System des heutigen roÈmischen
Rechts, as an inquiry directed to the legal subject qua natural person,
whereby the construction of the legal person as persona ficta represented
something anomalous, is transformed by the later nineteenth-century legal
theorists and ultimately by Kelsen into a scheme whereby it is the natural
person that turns up as a contradictio in adjecto (see generally on the shift,
Binder 1907; and Winter 1980, 294±310). In its place, the fictitious legal
person emerges as the only possible concept of legal personalityÐor, as in
Kelsen's case, points of imputation displace the traditional concept of legal
personality.
To be sure, Kelsen's displacement of the traditional concept is not com-
plete. He sometimes feels compelled to draw on some personalized version
of the fictitious legal subject, a fact underscoring the difficulties of sup-
planting legal personality. The following text illustrates Kelsen's oscillation.
[The] ``physical person'' is not, as traditional theory claims, the human being. That is
a biologico-psychological concept, not a legal one. It expresses no entity proper to the
law or to legal cognition [_] That is to sayÐstripping the notion of its misleading
biologico-psychological character (misleading because it doubles the object of cog-
nition)Ðthe ``physical'' person is the common point of imputation for the material
facts of human behaviour that are normatively regulated as obligations and rights.
(Kelsen 1992, sec. 25(a), 47±8)

III. Kelsen's Doctrine of Peripheral Imputation

If Kelsen's doctrine of central imputation differs from the traditional
doctrine in manifesting no personalized subject, his doctrine of peripheral
imputation differs from both of these doctrines in having, stricto sensu, no
subject of attribution at all.13 Or, making the distinction in terms that reflect
something of Kelsen's neo-Kantianism, if the doctrine of peripheral imputa-
tion serves as Kelsen's category of legal cognition, then the attribution of a
legal position to a legal subject, far from counting as an instance of periph-
eral imputation, presupposes it.
Peripheral imputation links ``material facts'' (``TatbestaÈnde''). As Kelsen puts
it in the Allgemeine Staatslehre, one of his early statements on the doctrine:
``peripheral imputation always leads from one material fact to nothing other
than another material fact'' (Kelsen 1925, sec. 12(d), 65).14 A comparable
statement is found in the First Edition of the Reine Rechtslehre. At the end of

13
I am indebted to Carsten Heidemann for having insisted on this distinction and its
importance.
14
Kelsen's own text reads: ``periphere Zurechnung fuÈhrt von einem Tatbestand immer nur zu
einem anderen Tatbestand.''

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56 Stanley L. Paulson

a section devoted to the doctrine of central imputation, Kelsen contrasts that

doctrine with peripheral imputation. Central imputation, he writes,
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, sec. 25(d), 50±1; see also Heidemann 1997, 73±4)

Two questions arise here. First, what exactly are these material facts? And,
second, how might peripheral imputation, linking material facts, be formu-
lated? As to the first question, Kelsen arguably answers in terms of ``legal
condition'' and ``legal consequence.'' At first glance, this seems a decidedly
odd fit, for a legal consequence does not obviously count as an instance of
a material fact. Rather, in the formulation of a reconstructed legal norm, a
material fact falling within the scope of the antecedent clause triggers the
legal consequence. It is, however, precisely the language of material facts
and legal conditions with their consequences that Kelsen brings together in
introducing imputation. He writes that ``[i]f the mode of linking material
facts is causality in the one case, it is imputation in the other'' (Kelsen 1992,
sec. 11(b), 23). Thus, imputation, too, links material factsÐand Kelsen says
as much, expressis verbis, in the quotations of the previous paragraph. What
is more, he uses ``cause'' and ``effect,'' and ``legal condition'' and ``legal con-
sequence,'' as the respective relata of these very same ordering principles or
relations, causality and imputation (see ibid., sec. 11(b), 23±4). That is, he
understands their relata as species of the genus ``material fact.''
The most obvious explanation for Kelsen's use of material facts as the
characteristic relata of peripheral imputation is his wish to provide as close a
parallel to the principle of causality as possible. Since material facts are
indisputably the relata in the case of causality, so likewise, he is arguing,
material facts also count as the relata in the case of imputation. Kelsen
develops this parallel with an eye to turning the legal science of his day into
something scientifically respectable (see generally Kelsen 1911; and Dreier
1986, 104±12). If it can be shown that aspects of the fundamental ordering
principle of the natural sciences are reflected in the ordering principle of
legal science, that parallel will enhance the scientific status of the latter.
The second question speaks to the formulation of peripheral imputation.
One proposal for a formulation reads:
Formulation I. If an act of type a takes place (and _),15 then the official is
empowered to impose such-and-such a sanction on S, the legal subject who
performed the act of type a.
This formulation is ruled out, however, by Kelsen's stipulation that per-
ipheral imputation links material facts. Formulation I is closer to what would
15
It is understood that the antecedent here is shorthand for a whole range of procedural
conditions that would have to obtain before liability is triggered. See Kelsen 1973, 51.

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 Hans Kelsen's Doctrine of Imputation 57

be expected under the rubric of the traditional doctrine of imputation,

where, as we have seen, an attribution to a legal or moral subject is at issue.
The closest analogue in Kelsen's legal theory to the traditional doctrine is
central imputation, which is to say that the formulation above could be
employed only on pain of confusing peripheral with central imputation.
Since Kelsen goes to considerable pains to distinguish them, Formulation I is
hardly satisfactory.
As an alternative, one might set out a subjectless counterpart to
Formulation I, that is, a formulation sans the subject of attribution:
Formulation II. If an act of type a takes place (and _), then that act is
rendered legally liable.
A formulation along these lines, I believe, captures the import of peripheral
imputation. The defensible formulation must be subjectless, without any
subject of attribution, for, as we saw in Formulation I, to include the subject
of attribution in the formulation would be to treat peripheral imputation as
a species of central imputation (see also Alexy 2001, n. 27).
What is more, the formulation can be subjectless. Indeed, Kelsen's
doctrine of the objectification (Objektivierung) of the law, rendering the law a
fit object of inquiry for legal science, calls for it. In the course of his polemic
against dualisms in the law that stem from an illegitimate legal subjectivity,
he goes so far as to say that elements of subjectivity, if claimed to exist in a
system of objective law, generate contradictions:

It is the notion of a legal subjectivity that finds, so to speak, the existing subjective
right in the individual or in certain collectives, a legal subjectivity that has only to
recognize the subjective rightÐand, indeed, must necessarily recognize it lest the
subjective right lose its character as ``law.'' The opposition between law (in the
objective sense) and legal subjectivity, a logical contradiction within the theory if
the theory claims that both exist at the same time, is expressed most strikingly in
the following: The meaning of the objective law as a heteronomous norm is the
bond, is in fact coercion, while the essence of legal personality is declared to be
precisely the negation of every bond, namely, liberty in terms of self-determination
or autonomy. (Kelsen 1992, sec. 20, 39±40, emphasis added)

Of course, Kelsen's objectification of the law, a reflection of what had been

undertaken by the neo-Kantians in the name of Wissenschaftslehre or philoso-
phy of science (see Rickert 1921), does not point to a wholesale elimination,
in practice, of the legal subject. That would be absurd. Rather, it points to a
reconstruction of the legal subject in the only terms, Kelsen is contending,
that are intelligible, namely, from inside the legal system. We have already
seen this in section II.
A problem arises with Formulation II, however, as soon as one proposes
using it as the appropriate formulation of the peculiarly legal category. How
is the class of ``act[s] of type a,'' as the formulation has it, to be understood?
It may appear at first glance that the class of acts of type a would have to be
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58 Stanley L. Paulson

determined independently of the category, but of what use, then, is the

category? Would not the specification of the class count as a legal rule,
which would then itself warrant the move from acts falling within its scope
to the legal consequence of deeming the act legally liable?
This query takes me to the difficult issues of treating peripheral imputa-
tion as the peculiarly legal category. I begin with a preliminary answer to
the query raised immediately above. The answer, I believe, is provided
by the doctrine of schematization. Just as Kant's categories require, for their
application, a schematization by means of space and time, so likewise the
category of imputation requires, for its application, a schematization. In the
legal context, too, the schematization calls for spatial (or jurisdictional) and
temporal determinants. It is brought about, I suggest, by means of the
presupposition associated with the basic norm. The basic norm specifies, as
Kelsen states again and again, a particular legal systemÐone that exists at
some particular time in some particular place (see Kelsen 1945a, 110±11;
1945b, 401, 405; 1960, sec. 34(e), 204±9).16 On the one hand, the schematiza-
tion by means of the basic norm serves, inter alia, to establish the scope of the
class of acts of type a. On the other, it is the category of peripheral imputa-
tion that makes possible the tie between acts of the specified class and the
legal consequence, such that they can be rendered legally liable.
Having said this much in answer to my specific query, let me step back
and sketch a couple of points that speak to the idea of treating peripheral
imputation as the peculiarly legal category. Two groups of theories about
philosophical categories were evident in German philosophy from the later
nineteenth century to the end of the Weimar Republic.17 One group, cat-
egories as forms of objects, represents a complete break with Kant and the
neo-Kantians. In some instances, as with the phenomenologists, the method
includes an a priori component; in other instances, the method is empirical
through and through. The other group, categories as a priori forms of
thought, reflects the neo-Kantian approach; notwithstanding great differ-
ences between and among the neo-Kantians in outlook, their doctrine of
categories was seen as an effort to preserve something of Kant's own
scheme, albeit within a different framework. In place of Kant's own scheme,
including the doctrine of transcendental apperception, which they dis-
credited as containing psychologistic elements, the neo-Kantians of the
Southwest or Heidelberg School appealed to a ``two-worlds'' doctrine in
which philosophical validity (Geltung or das Gelten) or value (Wert) was
sharply distinguished from reality (Wirklichkeit). In Wilhelm Windelband's
16
My reading of the basic norm as Kelsen's means of schematization is an unorthodox reading,
but no less promising for that. It provides a role for the basic norm within a greater neo-Kantian
reconstruction of Kelsen, and it fits to a tee Kelsen's notion that basic norms are addressed to
particular legal systems.
17
See generally KuÈlpe 1915; Maier 1926±35, part 2, 409±25. I have drawn on these texts here.
(The latter parts of Heinrich Maier's major treatise, coming at the end of his long career in
professional philosophy, were published posthumously.)

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 Hans Kelsen's Doctrine of Imputation 59

words, the sphere of ``the [philosophically] valid''18 is what remains of

Kant's ``transcendental apperception'' or ``consciousness in general''19 after
the psychologistic elements of the doctrine have been excised. ``The [philo-
sophically] valid,'' Windelband writes, can be ``nothing else than the form
and order under which that which exists is determined'' (Windelband 1913, 39,
emphasis in original).
Kelsen's category, peripheral imputation, is perhaps best understood as a
``form'' drawn from the sphere of ``the [philosophically] valid,'' as developed
by the neo-Kantians of the Southwest or Heidelberg School who influenced
him, Windelband and Rickert.
Finally, I might note that Kelsen believes he has a justification for
invoking a neo-Kantian category. He believes, first, that he has ruled out the
alternatives in legal philosophy, namely, natural law theory and fact-based
legal positivism, and, second, that these are the only alternatives (see gener-
ally Paulson 2000b, 2000c). Whether or not this assumption is defensible is of
course an altogether different question.

IV. The Puzzle surrounding Kelsen's Sollen or Legal ``Ought''

Kelsen uses Sollen or ``ought'' in a bewildering variety of ways.20 Of special
interest here is the question of whether Sollen might be regarded as Kelsen's
``relative a priori category.'' In the First Edition of the Reine Rechtslehre,
Kelsen seems to be saying precisely this. The title of section 11, a text whose
significance for the Pure Theory of Law generally can scarcely be over-
estimated, runs: ```Ought' as Designating a Category of the Law'' (Kelsen
1992, sec. 11, 22). The title of section 11(b) runs: ```Ought' as Designating a
Transcendental Category'' (ibid., sec. 11(b), 23). In the text of this section, he
writes:
The ``ought'' designates a relative a priori category for comprehending empirical legal
data. In this respect, the ``ought'' is indispensable, lest the specific way in which the
positive law connects material facts with one another not be comprehended or
expressed at all. (Ibid., sec. 11(b), 24±5)

18
The insertion between square-cornered brackets simply invites attention to the fact that
``philosophical validity'' ought not to be confused with the jurist's concept of validity, although
on a neo-Kantian reconstruction, Kelsen will be seen as making his case for the latter by appeal
to the former. And Kelsen occasionally refers to validity in its proper neo-Kantian sense, as
when he summarizes the principles of his Kantian or neo-Kantian program as including an
escape ``from the subjectivistic sphere of psychologism into the sphere of logico-objective
validity [logisch-objektiver Geltung].'' Kelsen 1925, vii; and see the suggestive proposals in
Heidemann 2000.
19
The first expression is characteristic of Kant's Critique of Pure Reason (Kant 1929), while the
second is the counterpart in his Prolegomena (Kant 1997).
20
See Leiminger 1967, 63±6, who sets out what he claims to be 18 distinct ``definitions'' of
Kelsen's Sollen or ``ought.'' See also Kelsen 1968, 165±70, for a hard-hitting reply, in which he
disputes virtually everything Leiminger has claimed.

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60 Stanley L. Paulson

Finally, in section 16, Kelsen points out that the normative meaning charac-
terized by ``law'' stems from an interpretation of the law that is possible but
not necessary. This is not to say, however, that it is

necessary to dispense therefore with the category designated by ``ought'' altogether,

and so to dispense with a normative theory of lawÐthat is, the epistemological
exploration and systematic treatment of the intellectual substance borne by natural
acts and first giving them legal meaning. (Ibid., sec. 16, 34)

Does this material in the First Edition of Kelsen's Reine Rechtslehre make out
a case on behalf of the ``ought'' qua category of legal cognition? I do not think
so. In the same text, Kelsen also speaks of the ``ought'' as giving expression
to the legal category of imputation.

Expressing this connection, termed ``imputation,'' and thereby expressing the specific
existence, the validity, of the lawÐand nothing elseÐis the ``ought'' in which the Pure
Theory of Law represents the positive law. That is, ``ought'' expresses the unique
sense in which the material facts belonging to the system of the law are posited in
their reciprocal relation. In the same way, ``must'' expresses the law of causality.
(Ibid., sec. 11(b), 24)

The ``ought'' gives expression to the ``unique sense'' in which material facts
are brought together in the legal system, but the ``ought'' is not itself a name
for that ordering principle. Rather, as Kelsen indicates clearly here, the
ordering principle, the connection itself, is imputation.
In other works, too, Kelsen speaks of the ``ought'' as giving expression to
the relation of peripheral imputation. Having turned to peripheral imputa-
tion in the ``Foreword to the Second Printing of Main Problems in the Theory
of Public Law,'' Kelsen continues: ``I must [_] characterize imputation as the
connection that exists between the elements brought together within the
reconstructed legal norm, the connection that is produced grammatically by
the `ought''' (Kelsen 1998, sec. III, 7, trans. slightly altered). By referring to
grammar in the context of the ``ought'' and to the connection of elements
themselves in the context of imputation, Kelsen makes perfectly clear what
is certainly less than clear in some of his other texts: The ordering principle
of peripheral imputation, governing the extra-linguistic connection of elem-
ents, can be given expression with the legal ``ought.''
All of this has turned on an analysis of texts. There is another point,
however, that raises doubts about the idea that Sollen or the legal ``ought'' is
Kelsen's peculiarly legal category. As we have seen, peripheral imputation
has a characteristic form, and category is formÐthat is, categories provide
forms by means of which undifferentiated material is organized and thereby
rendered coherent. The legal ``ought,'' by contrast, can be used in a variety
of formulations, including both peripheral and central imputation. For
example, beginning with Formulation II and introducing an additional
variable ``b'', to the effect that the act in question is rendered legally liable,
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 Hans Kelsen's Doctrine of Imputation 61

one could offer a formulation of peripheral imputation that reflects the

modal auxiliary ``ought'':
Formulation III. If an act of type a takes place (and _), then b ought to be.
Well and good, but one could also use the modal auxiliary ``ought'' in a
formulation of central imputation. Beginning, then, with Formulation I and
building on it, one could offer a formulation of central imputation that
reflects the modal auxiliary ``ought'':
Formulation IV. If an act of type a takes place (and _), then the official ought
to impose such-and-such a sanction on S, the legal subject who performed
the act of type a.
The formulation may well be satisfactory here, too, but the very fact that
Kelsen's legal ``ought'' can be used in both of these contexts as well as in
others suggests that it specifies no distinct form in terms of which imputa-
tion might be understood. The legal ``ought'' imposes only those constraints
understood grammatically, that is, in virtue of its being a modal auxiliary.
Mutatis mutandis for Kelsen's counterpart, the German modal verb ``Sollen.''

Washington University
School of Law
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One Brookings Drive
St. Louis, MO 63130-4899
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E-mail: paulson@wulaw.wustl.edu

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