Postscript

1934 was the year when the first edition of Reine Rechtslehre was published, and was one year after the Nazi seizure of the government and the expulsion of Kelsen from the University of Cologne. The Weimar Republic collapsed before his eyes.  In its “Preface” we feel the vestige of the upheaval, although the tone is restrained.  At that time, Kelsen was over fifty years old.  In this situation, he published the work which summarized his theoretical accomplishment.  Its translation by Kisaburo Yokota is linguistically perfect and the style is vivid, from which we can feel his admiration for the author.  Sometimes a translation of the second edition of a book is superfluous, but this project can be justified with a view to Kelsen’s characterization of it as völlige Neubearbeitung and erhebliche Erweiterung.  This edition is a work of an author who was nearing the age of 80, “am Ende seines Lebens”. It is the Zusammenfassung of his theoretical life.

What Kelsen tried in the name of “Pure Theory of Law” was, first of all, separating the theoretical part of jurisprudence which had been the mishmash of cognition and practice.  Once legal faculties of German universities were the courts of the last instance where legal scholars were judges.  At the International Court of Justice, teachings of the most highly qualified publicists (scholars of international law) are ipso facto sources of law.  Amid such circumstances, Kelsen tried to separate strictly its theoretical and practical part.  It was a radical challenge to the traditional jurisprudence which invited harsh repercussions.

There were attempts at establishing science of law in the fields of history and sociology of law as empirical sciences of law.  What Kelsen tried to establish was a normative science of law.  He distinguished Rechtsnorm and Rechtssatz, which is wertfrei description of Rechtsnorm.  For him the science of law is the system of Rechtssätze.  Its typical form is "According to the law of X country, theft ought to be punished with prison terms”.  Kelsen criticized the traditional jurisprudence in which one possible interpretation among other possibilities was claimed to be the “right” interpretation, calling it “theory”.  It is, for him, the transgression of science as cognition.

What Kelsen espoused in the name of “Pure Theory of Law” is a general theory of law, which is not to be limited to the law of specific nations (German law, American law, e.g.) or specific fields (civil law, criminal law etc.).  Practical jurists may ask the utility of such a theory, but Kelsen would answer that utility is not the only aim of science.  He found Rechtssatz as its cornerstone or atom.  The subtitle of his first work in legal theory, Hauptprobleme der Staatarechtslehre, was “entwickelt aus der Lehre vom Rechtssätze. " Rechtssatz is a normative conjunction of a behavior with coercive sanction.  Legal duty is a duty to refrain from such a behavior.  Legal right is a legal power to set in motion the sanction.  Rechtssatz is the basis of defining legal terms.

One of his epoch-making contribution to legal theory is his criticism of anthropomorphism in legal discourses.  Only human beings (Mensch) make and realize law, but in traditional legal discourses the anthropomorphical concept of “legal person” (including state) is introduced.  A human being is interpreted as an “organ” of legal person.  His behavior is imputed to the legal person.  By this conceptual apparatus, behaviors of judges or administrators are regarded as the acts of the state.  Early Kelsen called this imputation Zurechnung, but in this book Zuschreibung.  As a tool for illustration, anthropomorphism may be useful, but it often accompanies confusions and ideological abuses.  The main contention of Hauptprobleme was pointing out pathological aspects of personification in state theories.  Some aspects of the systems called the “German Staatslehre” served the glorification of German state.  Kelsen attempted at decomposing such systems.  

Kelsen called the theoretical system he developed in Hauptprobleme as "legal statics. " Stimulated by the ideas of Adolf Merkl, he added another approach to legal system which he called legal dynamics.  A higher legal norm delegates a lower organ to legislate, apply or execute it within the frame it imposes.  Legal order is a system of delegation within which laws are constantly created, applied and executed.  It is one of Kelsen’s original insights that the difference of the concepts of legislation, application and execution is relative one.  Lower norms which deviated from the frame of higher norms continue to be valid as far as the higher norms do not stipulate the procedure to annul them.  Even if there are such stipulations, as far as they are not actualized, the usurpation of lower norms continues to exist.  If the legal order does not stipulate the procedure which annul them, it implicitly admits such usurpations.  Kelsen introduced the Verfassungsgericht into the Austrian Constitution to block the possibility of such usurpations.

Within the system of the hierarchy of delegation, powers often concentrate to one place.  It is called “centralization. “  Legal history is a history of the ups and downs of legal powers (military power, power to levy taxes, etc.) like elevators within the hierarchy.  The process which was called the “formation of modern states” was the process of descending of powers from the Emperor and the Pope downward and the process of ascending of powers from aristocrats and landlords upward.  The process which was called the establishment of modern property right was the process of disintegrating powers from Gesamteigentum downward and dispossessing hereditary tenants upward.  Modern state is a stage of relatively concentrated power.  There is no absolute difference between Staatenbund and Bundesstaat (This problem recurred as the discussion of the legal nature of the EU).

At the top of the hierarchy of delegation is the Basic Norm.  The reason of the validity of laws within a state is the constitution, whose reason of validity might be the former constitution.  The reason of the validity of the historically first constitution cannot be found in the positive law of the state.  It is the presupposed Basic Norm which orders to obey the first constitution.  However, there is a norm in the international customary law which empowers the effective government within the realm as legitimate government.  Thus, the presupposed Basic Norm within the state law is a positive norm of international law.  What, then, is the Basic Norm of international law?  Kelsen’s answer is: the norm which orders nations s to obey the rule which nations have obeyed.    

This Basic Norm has been the focus of discussion about Kelsen.  One of the important problem is the relationship between the principle of effectiveness and the hypothetical character of the Norm.  Principle of effectiveness has been criticized by moralizing writers as justifying evil laws.  However, the subject matter of science of positive law can be nothing but positive law, just as an important theme of the science of ancient positive law (legal history) can be slavery.  Concerning the hypothetical nature of the Basic Norm, it is the central problem of Kelsen’s legal philosophy.  An exile thinker, who denies the legitimacy of the government of his fatherland, may not be convinced by the Kelsenian argument of effectiveness and hypothetical nature as a factor which mitigate his resistance.  Kelsen said in his First Edition that we cannot refute anarchists „mit zwingenden Argumenten“(S.36).  Within Kelsen’s theory, some possibility of a revolutionary idea lurks which denies the normative character of positive law.  

Kelsen himself said that the hypothesis of Basic Norm “may or may not be accepted” (What Is Justice? S.263).  As a man of action, he said, "I may fight and die unconditionally for freedom democracy is able to realize." The words "fight" and “unconditionally” imply an action in defiance of positive law, to "die" a moral martyrdom defying the positive law.