General Theory of Law and State

Hans Kelsen

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351517980
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Widely regarded as the most important legal theorist of the twentieth century, Hans Kelsen is best known for his formulation of the "pure theory of law", - within which the study of international law was his special field of work. The present volume, "General Theory of Law and State", first published in 1945, allowed Kelsen to adjust his pure theory of law to American circumstances after World War II. It also afforded him the opportunity to present to English-speaking readers his latest ideas on the supremacy of international law. The volume is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsen's jurisprudence. The volume is not only a compendium of Kelsen's lifework up to that time; it is also an extension of his theories, "to embrace the problems and institutions of English and American law as well as those of the Civil Law countries". Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers; it signifies that Kelsen's legal theory is truly general in that it accounts for the Common Law as well as the Civil Law. A systematic treatise on jurisprudence, "General Theory of Law and State" is a substantial reformulation of Kelsen's ideas articulated in several of his previous books, written in German. The juridical principles put forth by the most important legal theorist of the twentieth century remain of great value. This volume will be read by legal scholars, political scientists, and intellectual historians.

Part one

The Law

NOMOSTATICS

I. The Concept of Law

A. Law and Justice

a. Human Behavior as the Object of Rules

LAW is an order of human behavior. An “order” is a system of rules.

Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system. It is impossible to grasp the nature of law if we limit our attention to the single isolated rule. The relations which link together the particular rules of a legal order are also essential to the nature of law. Only on the basis of a clear comprehension of those relations constituting the legal order can the nature of law be fully understood.

The statement that law is an order of human behavior does not mean that the legal order is concerned only with human behavior; that nothing but human behavior enters into the contents of legal rules. A rule that makes murder a punishable delict concerns human behavior which has the death of a human being as its effect. Death itself, however, is not human behavior but a physiological process. Every rule of law obligates human beings to observe a certain behavior under certain circumstances. These circumstances need not be human behavior, they may be, for instance, what we call natural events. A rule of law may oblige neighbors to lend assistance to the victims of an inundation. Inundation is not a human behavior, but it is the condition of a human behavior prescribed by the legal order. In this sense, facts which are not facts of human behavior may enter into the contents of a legal rule. But they may do so only as related to human behavior, either as its condition or as its effect.

It might seem as if this applied only to the laws of civilized peoples. In primitive law, animals, and even plants and other inanimate objects are often treated in the same way as human beings and are, in particular, punished.^* However, this must be seen in its connection with the animism of primitive man. He considers animals, plants, and inanimate objects as endowed with a “soul,” inasmuch as he attributes human, and sometimes even superhuman, mental faculties to them. The fundamental difference between human and other beings, which is part of the outlook of civilized man, does not exist for primitive man. And he applies his law also to non-human beings because for him they are human, or at least similar to man. In this sense primitive law is an order of human behavior, too.

However, besides law there are other orders of human behavior, such as morals and religion. A definition of law must specify in what respects law differs from these other orders of human behavior.

b. Scientific and Political Definition of Law

Any attempt to define a concept must take for its starting-point the common usage of the word, denoting the concept in question. In defining the concept of law, we must begin by examining the following questions: Do the social phenomena generally called “law” present a common characteristic distinguishing them from other social phenomena of a similar kind? And is this characteristic of such importance in the social life of man that it may be made the basis of a concept serviceable for the cognition of social life? For reasons of economy of thought, one must start from the broadest possible usage of the word “law.” Perhaps no such characteristic as we are looking for can be found. Perhaps the actual usage is so loose that the phenomena called “law” do not exhibit any common characteristic of real importance. But if such a characteristic can be found, then we are justified in including it in the definition.

This is not to say that it would be illegitimate to frame a narrower concept of law, not covering all the phenomena usually called “law.” We may define at will those terms which we wish to use as tools in our intellectual work. The only question is whether they will serve the theoretical purpose for which we have intended them. A concept of law whose extent roughly coincides with the common usage is obviously — circumstances otherwise being equal — to be preferred to a concept which is applicable only to a much narrower class of phenomena. Let us take an example. Even since the rise of Bolshevism, National Socialism, and Fascism, one speaks of Russian, German, and Italian “law.” Nothing would prevent us, however, from including in our definition of a legal order a certain minimum of personal freedom and the possibility of private property. One result of adopting such a definition would be that the social orders prevailing in Russia, Italy and Germany could no longer be recognized as legal orders, although they have very important elements in common with the social orders of democratic-capitalistic States.

The above-mentioned concept — which actually appears in recent works on legal philosophy — also shows how a political bias can influence the definition of law. The concept of law is here made to correspond to a specific ideal of justice, namely, of democracy and liberalism. From the standpoint of science, free from any moral or political judgments of value, democracy and liberalism are only two possible principles of social organization, just as autocracy and socialism are. There is no scientific reason why the concept of law should be defined so as to exclude the latter. As used in these investigations, the concept of law has no moral connotation whatsoever. It designates a specific technique of social organization. The problem of law, as a scientific problem, is the problem of social technique, not a problem of morals. The statement: “A certain social order has the character of law, is a legal order,” does not imply the moral judgment that this order is good or just. There are legal orders which are, from a certain point of view, unjust. Law and justice are two different concepts. Law as distinguished from justice is positive law. It is the concept of positive law which is here in question; and a science of positive law must be clearly distinguished from a philosophy of justice.

c. The Concept of Law and the Idea of Justice

To free the concept of law from the idea of justice is difficult because both are constantly confused in non-scientific political thought as well as in general speech, and because this confusion corresponds to the ideological tendency to make positive law appear as just. If law and justice are identified, if only a just order is called law, a social order which is presented as law is — at the same time — presented as just; and that means it is morally justified. The tendency to identify law and justice is the tendency to justify a given social order. It is a political, not a scientific tendency. In view of this tendency, the effort to deal with law and justice as two different problems falls under the suspicion of repudiating altogether the requirement that positive law should be just. This requirement is self-evident; but what it actually means is another question. At any rate a pure theory of law in no way opposes the requirement for just law by declaring itself incompetent to answer the question whether a given law is just or not, and in what the essential element of justice consists. A pure theory of law — a science — cannot answer this question because this question cannot be answered scientifically at all.

What does it really mean to say that a social order is a just one? It means that this order regulates the behavior of men in a way satisfactory to all men, that is to say, so that all men find their happiness in it. The longing for justice is men’s eternal longing for happiness. It is happiness that man cannot find as an isolated individual and hence seeks in society. Justice is social happiness.

1. Justice as a Subjective Judgment of Value

It is obvious that there can be no “just” order, that is, one affording happiness to everyone, as long as one defines the concept of happiness in its original, narrow sense of individual happiness, meaning by a man’s happiness what he himself considers it to be. For it is then inevitable that the happiness of one individual will, at some time, be directly in conflict with that of another. Nor is a just order then possible even on the supposition that it is trying to bring about not the individual happiness of each, but the greatest possible happiness of the greatest possible number of individuals. The happiness that a social order can assure can be happiness in the collective sense only, that is, the satisfaction of certain needs, recognized by the social authority, the law-giver, as needs worthy of being satisfied, such as the need to be fed, clothed, and housed. But which human needs are worthy of being satisfied, and especially what is their proper order of rank? These questions cannot be answered by means of rational cognition. The decision of these questions is a judgment of value, determined by emotional factors, and is, therefore, subjective in character, valid only for the judging subject and therefore relative only. It will be different according to whether the question is answered by a believing Christian, who holds the good of his soul in the hereafter more important than earthly goods, or by a materialist who believes in no after life; and it will be just as different according to whether the decision is made by one who considers personal freedom as the highest good, i.e. by liberalism, or by one for whom social security and the equality of all men is rated higher than freedom, by socialism.

The question whether spiritual or material possessions, whether freedom or equality, represents the highest value, cannot be answered rationally. Yet the subjective, and hence relative judgment of value by which this question is answered is usually presented as an assertion of an objective and absolute value, a generally valid norm. It is a peculiarity of the human being that he has a deep need to justify his behavior, the expression of his emotions, his wishes and desires, through the function of his intellect, his thinking and cognition. This is possible, at least in principle, to the extent that the wishes and desires relate to means by which some end or other is to be achieved; for the relationship of means to end is a relationship of cause and effect, and this can be determined on the basis of experience, i.e. rationally. To be sure, even this is frequently not possible in view of the present state of social science; for in many cases we have no adequate experience which enables us to determine how certain social aims may best be attained. Hence, this question as to the appropriate means is also frequently determined rather by subjective judgments of value than by an objective insight into the connection between means and end, that is, between cause and effect; and hence, at least for the moment, the problem of justice, even as thus restricted to a question of the appropriate means to a generally recognized end, cannot always be rationally answered. The issue between liberalism and socialism, for instance, is, in great part, not really an issue over the aim of society, but rather one as to the correct way of achieving a goal as to which men are by and large in agreement; and this issue cannot be scientifically determined, at least not today.

The judgment by which something is declared to be the appropriate means to a presupposed end is not a true judgment of value; it is — as pointed out — a judgment concerning the connection between cause and effect, and, as such, a judgment about reality. A judgment of value is the statement by which something is declared to be an end, an ultimate end which is not in itself a means to a further end. Such a judgment is always determined by emotional factors.

A. justification of the emotional function by the rational one, however, is excluded in principle in so far as it is a question of ultimate aims which are not themselves means to further ends.

If the assertion of such ultimate aims appears in the form of postulates or norms of justice, they always rest upon purely subjective and hence relative judgments of value. It goes without saying that there are a great many such subjective judgments of value, very different from one another and mutually irreconcilable. That, of course, does not mean that every individual has his own system of values. In fact, very many individuals agree in their judgments of value. A positive system of values is not an arbitrary creation of the isolated individual, but always the result of the mutual influence the individuals exercise upon each other within a given group, be it family, tribe, class, caste, profession. Every system of values, especially a system of morals and its central idea of justice, is a social phenomenon, the product of a society, and hence different according to the nature of the society within which it arises. The fact that there are certain values generally accepted in a certain society in no way contradicts the subjective and relative character of these judgments of value. That many individuals agree in their judgments of value is no proof that these judgments are correct. Just as the fact that most people believe, or used to believe, that the sun turns around the earth, is, or was, no proof of the truth of this idea. The criterion of justice, like the criterion of truth, is not dependent on the frequency with which judgments about reality or judgments of value are made.

Since humanity is divided into many nations, classes, religions, professions and so on, often at variance with one another, there are a great many very different ideas of justice; too many for one to be able to speak simply of “justice.”

2. Natural Law

Yet one is inclined to set forth one’s own idea of justice as the only correct, the absolutely valid one. The need for rational justification of our emotional acts is so great that we seek to satisfy it even at the risk of self-deception. And the rational justification of a postulate based on a subjective judgment of value, that is, on a wish, as for instance that all men should be free, or that all men should be treated equally, is self-deception or — what amounts to about the same thing — it is an ideology. Typical ideologies of this sort are the assertions that some sort of ultimate end, and hence some sort of definite regulation of human behavior, proceeds from “nature,” that is, from the nature of things or the nature of man, from human reason or the will of God. In such an assumption lies the essence of the doctrine of so-called natural law. This doctrine maintains that there is an ordering of human relations different from positive law, higher and absolutely valid and just, because emanating from nature, from human reason, or from the will of God.

The will of God is — in the natural law doctrine — identical with nature in so far as nature is conceived of as created by God, and the laws of nature as expression of God’s will. Consequently the laws determining nature have, according to this doctrine, the same character as the legal rules issued by a legislator: they are commands directed to nature; and nature obeys these commands, the laws of nature, just as man obeys the laws issued by a legislator.^* The law created by a legislator, i.e. by an act of will of a human authority, is positive law. Natural law, according to its specific doctrine, is not created by the act of a human will; it is not the artificial, arbitrary product of man. It can be and has to be deduced from nature by a mental operation. By carefully examining nature, especially the nature of man and his relations to other men, one can find the rules which regulate human behavior in a way corresponding to nature and hence perfectly just. The rights and duties of man, established by this natural law, are considered to be innate or inborn in man, because implanted by nature and not imposed or conferred upon him by a human legislator: and in so far as nature manifests God’s will, these rights and duties are sacred.

However, none of the numerous natural law theories has so far succeeded in defining the content of this just order in a way even approaching the exactness and objectivity with which natural science can determine the content of the laws of nature, or legal science the content of a positive legal order. That which has so far been put forth as natural law, or, what amounts to the same thing, as justice, consists for the most part of empty formulas, like suum cuique, “to each his own,” or meaningless tautologies like the categorical imperative, that is, Kant’s doctrine that one’s acts should be determined only by principles that one wills to be binding on all men. But the formula, “to each his own,” does not answer the question as to what is everybody’s own, and the categorical imperative does not say which are the principles that one ought to will to be binding on all men. Some writers define justice by the formula “You shall do the right and forbear from doing the wrong.” But what is right and what is wrong? This is the decisive question, and this question remains without answer. Almost all the famous formulas defining justice presuppose the expected answer as self-evident. But this answer is not at all self-evident. In fact, the answer to the question as to what is everybody’s own, as to what is to be the content of the general principles binding on all men, as to what is right and what is wrong — the answer to all these questions is supposed ...