Now that we have described John Austin’s command theory of law, or Legal Positivism 1.0 (see here), let us turn our attention to Legal Positivism 2.0–Hans Kelsen’s self-described “scientific” or “pure theory” of law. (Here is a short bio of Kelsen’s life.) Kelsen (the fussy-looking Austrian jurist whose portrait is pictured below) formulated his positivist theory of law in his classic work “A General Theory of Law and State,” published in 1945. In summary, Kelsen made three important contributions to legal positivism:
1. First off, he recognized the conditional nature of commands or legal rules. For Kelsen, legal norms are conditional sanctions: they come into play only when they have been transgressed. (As an aside, a great example of this point are speed limits. The posted speed limit might be 55MPH, but if everyone around you is going 80MPH and no one is getting pulled over, then “the real speed limit” is much higher.)
2. Secondly, Kelsen noted another feature of legal norms: these commands or rules are not only conditional; they are also indirect in nature. To the point, the legal norms of a given locality are not directed at the populace per se; instead, they are directed at the law enforcement officials of the locality. Put another way, such norms don’t tell us what to do or not to do; they tell public officials like judges what to do or not to do. (Again, think of speed limit signs.)
3. Last but not least, Kelsen identified a third fundamental feature of legal norms as opposed to moral ones or other types of norms: every legal rule is part of a larger legal system, or in Kelsen’s own words (Kelsen, 1961 , p. 3, quoted in Green & Thomas, 2019), “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.” But this systems approach to law poses another deep question: what holds all the rules or norms of a given legal system together?
In the United States, by way of example, the Constitution is the “supreme law of the land.” (See Art. VI, Sec. 2 of the Const.) As a result, any piece of legislation enacted in conformity with the rules established in the Constitution is a legally-valid law, and any regulation or rule enacted in conformity with any such legislation is likewise legally valid, and any judicial decision made in conformity with any such law or regulation is also legally valid, as is any private action in conformity with any such judicial decision. In the alternative, we could also move from the bottom to the top. Green & Thomas (2019, available here), for example, discuss the validity of a humble corporate by-law: “a by-law is legally valid because it is created by a corporation lawfully exercising the powers conferred on it by the legislature, which confers those powers in a manner provided by the constitution, which was itself created in a way provided by an earlier constitution.”
Either way (bottom-up or top-down), why is the Constitution so special? Hint: It’s not! For Kelsen, a constitution or enabling act is just another law, and the glue holding any given legal system together is not another law but rather something he called “the basic norm”–a kind of master command or fictional presumption that the highest law of the locality must be obeyed. So far, so good, but rest assured we will poke some major holes in Kelsen’s pure theory of law in my next post.