Stanford Law Review Stanford Law Review: This Content Downloaded From 14.139.209.68 On Wed, 07 Sep 2016 18:41:24 UTC

Stanford Law Review
Professor Stone and the Pure Theory of Law

Author(s): Hans Kelsen and Albert A. Ehrenzweig
Source: Stanford Law Review, Vol. 17, No. 6 (Jul., 1965), pp. 1128-1157
Published by: Stanford Law Review
Stable URL: http://www.jstor.org/stable/1227237
Accessed: 07-09-2016 18:41 UTC
REFERENCES
Linked references are available on JSTOR for this article:
http://www.jstor.org/stable/1227237?seq=1&cid=pdf-reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted
digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about
JSTOR, please contact [email protected].
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
http://about.jstor.org/terms
Stanford Law Review is collaborating with JSTOR to digitize, preserve and extend access to Stanford Law
Review
This content downloaded from 14.139.209.68 on Wed, 07 Sep 2016 18:41:24 UTC
All use subject to http://about.jstor.org/terms
Professor Stone and the Pure Theory of Law

HANS KELSEN*
Foreword
Julius Stone, Professor of Law at the University of Sydney, is a disciple of the late Roscoe Pound who is generally acclaimed as the founder
of the "sociological" school. Though following in the footsteps of his

teacher, Stone joined the handful of leading legal philosophers when, as
early as 1946, he published The Province and Function of Law, one of
the few outstanding general works on jurisprudence.
In i964, the Stanford University Press published a volume entitled
Legal System and Lawyers' Reasonings by Julius Stone. This work,

together with two other volumes, "Social Dimensions of Law and Justice," and "Human Justice" which are to appear in I965, is designed to
replace the Province. This is an important event in the history of

Anglo-American and, indeed, world jurisprudence. There will be much
praise by some, much criticism by others. But most critics will regret
those of the author's attacks on competing legal philosophies which are
phrased in a manner many of his friends, including this writer, may
consider unworthy of his uncontested and incontestable mastery of his
subject. In particular his chapter on Kelsen and his Pure Theory of

Law appears to lack detachment in that it casts doubt, or can be interpreted as casting doubt, not only on the merits but at times even the intellectual integrity' of one who for a half century now has been consid*Dr. Jur. 1906, Vienna. Professor of International Law and Jurisprudence, Emeritus, Uni-
versity of California, Berkeley.

1. See STONE, LEGAL SYSTEM AND LAWYERS' REASONINGS '102 (1964), where Kelsen is accused
of having adopted the terms "nomostatic" and "nomodynamic"-as characteristics of two different
aspects of the law-from Henry Wigmore's neologisms "without acknowledgment." Professor

Kelsen has offered the following comment: "As early as 1925, in my Allgemeine Staatslehre, I
characterized the part of the doctrine dealing with the problems of the validity of the State-Order
as a legal order (Geltung der Staatsordnung) as Statik (p. 93) and the part dealing with the problems of the creation of the State-Order (Erzeugung der Staatsordnung) as Dynamik (p. 227); and
in the first edition of my Reine Rechtslehre (1934) I spoke of 'eine dynamische zum Unterschied
von einer statischen Theorie des Rechts.' 'Statik' and 'Dynamik' are terms generally used to indicate a system in the state of rest in contradistinction to a system in motion. The terms 'nomostatic'
and 'nomodynamic,' which are used in my General Theory of Law and State (1945), designate this
difference with respect to systems of norms. When I made this distinction I did not know a work
of John Henry Wigmore (not Henry Wigmore) in which these terms are used. Only after I read
Professor Stone's statement did I examine Wigmore's writings and found in his Panorama of the
World's Legal Systems (1936) on pages 1120, 1121 the terms 'Nomology,' 'Nomoscopy,' 'Nomothetics,' 'Nomogenetics,' but not the terms 'nomostatic' and 'nomodynamic.' When Professor Stone
was asked with reference to his above-quoted statement where the terms 'nomostatic' and 'nomodynamic' can be found in Wigmore's writings, he did not refer to Wigmore's writings but to Albert
Kocourek, An Introduction to the Science of Law (1930). There Kocourek says on pp. 63-64:
'Dean Wigmore has created a new classification of materials of legal science'; and-without quoting
any writing of Wigmore-Kocourek presents a terminology of this new classification. Under the
heading 'Nomology' he mentions sixteen compound terms whose first part is 'nomo' (from vouoc:
1128
July I965] REPLY TO PROFESSOR STONE II29
ered as one of the world's truly great scholars

their pages for a detailed reply. This foreword
reader in his appreciation of the issues underl
Even a casual look at the jurisprudential liter
show that, after a history of 2000 years, the ce
that of the relation between law and morals, b
positivism, and that American realism, as repr

figure of Professor Bingham, to whom this is
only briefly in diverting attention to what may
ising endeavors. Only in the November issue o
Bodenheimer has offered another essay on "Th
Law Reassessed." This essay shares with the lit
and articles that have been published all over t
few decades3 recognition of the fact that no d
complete or even meaningful if it does not atta
as the leading exponent of legal positivism.
Even to those who cannot follow Kelsen into

his permanent contribution consists of a clarifi
In this context analysis of the essence, structu
norms remains one of Kelsen's lasting achiev
achievement that Julius Stone has attacked, an

that Hans Kelsen defends in the following pap
him again the distinction between legal and
tween prescription and description (Part II), be
cacy (Part III), and above all the hierarchy of n
law). Among these terms is also included the term 'nomostatics
ics.' When, in 1925, I distinguished between Statik and Dynam

legal order I did not know Kocourek's work which was publish
I know this work when, in 1934, I distinguished between a sta
law, and, in 1960, between Rechtsstatik and Rechtsdynamik
created this terminology; and most of the terms which Koco
creation. In Funk and Wagnalls New Standard Dictionary of t
1960) can be found the terms: nomology, nomogeny, nomoth
nomography, nomothesy. Some of these terms can be found al
tional Dictionary of the English Language (1961). Compound w
'nomo' are employed not only in the English but also in the
Larousse, Grand Dictionnaire Universel du XIXe Siecle (1874),
nomothet; and in Rudolf Eisler, Wdrterbuch der Philosophisc
kratie, Nomologie, Nomothetik, nomothetisch. Professor Ston
that my terminology is adopted from Wigmore's 'neologisms.'"

2. This is of course communis opinio, even among those wh
adversaries. Thus, the great Latin-American scholar, Professo
whom Stone has

"representative
intrinsically the
equally ignored
chosen as an oath-helper against the Pure Theory

of the most important doctrine in the philoso
greatest findings and contents of truth." And in
by Stone, "Kelsen is doubtless the greatest and
science of law as an autonomous, strict and cultural study
Kelsenism, in INTERPRETATIONS OF MODERN LEGAL PHILOS

3. For a recent bibliography see Ehrenzweig, Toward a Psy
The "Schools of Jurisprudence"-an End and a Beginning, in FES
CRONA 148 (1964).
II30 STANFORD LAW REVIEW [Vol. I7: Page II28
study the "basic norm" (Part IV), the process of der

dichotomies of international and national law and of
a general defense of his own Pure Theory of Law (
has offered a fitting conclusion to a fascinating essay-f

be thankful to his opponent.
ALBERT A. EHRENZWEIG*
In a recently published study, Legal System and L
ings,1 Julius Stone, Professor of Jurisprudence and In

the University of Sydney, subjects the Pure Theory of
sive critique which results in a complete rejection of th
critique is based on a very defective presentation of m
fend it nothing more is necessary than to rectify Prof
sentation. This is the purpose of the following lines.
I. LEGAL AND MORAL
Professor Stone maintains that I never offered a defin

cept of law in my main works.2 But Part II of the first
tion 6 of the second edition of my Reine Rechtslehre,4
work of my Pure Theory of Law, are devoted to the de

concept. There I indicate its essential elements. It is tru
formulate the definition in one sentence. This is not n
by Professor Stone himself, who-in spite of his statem
offer a definition of the concept of law-enumerates fi
he says "a definition of law by Kelsen would proba

Almost incredible is Professor Stone's statement that
lem, that of indicating the specific difference of legal f
has still to be referred (according to Kelsen) not to any

teristic of each norm but to the fact that the norm is
kind of system of norms . . . ."6 Since Professor Stone q
from my Reine Rechtslehre7 we may assume that he h
If so, he must know that I dealt with the problem of th
ence of legal from other norms very carefully, especially
* Dr. Jur. 1928, Vienna; J.D. 1941, University of Chicago; LL.M. 1942,
bia University. Walter Perry Johnson Professor of Law, University of Califo

1. Stanford: Stanford University Press (1964).
2. LEGAL SYSTEM AND LAWYERS' REASONINGS 102 (1964).
3. REINE RECHTSLEHRE 19-39 (1st ed. 1934).

4. REINE RECHTSLEHRE 31-59 (2d ed. 1960).
6. Id. at 103.
7. REINE RECHTSLEHRE (2d ed. 1960).
July I965] REPLY TO PROFESSOR STONE 1131
ence between legal and moral norms, and that I maintained that the
specific difference is that the legal norms are norms prescribing a certain
human behavior by attaching to the contrary behavior a coercive act as
a sanction. According to the Pure Theory of Law the internal characteristic of the legal norm is that it stipulates a coercive act.' In my Hauptprobleme der Staatsrechtslehre9 I designated the sanctions of punishment
and civil execution as the characteristic elements of the norms of national
law. Professor Stone may not agree with this doctrine, but he has no
reason to object that the Pure Theory of Law does not indicate the specific difference between legal and other norms. Besides, Professor Stone
quotes a sentence of one of my writings in which I define the concept
of law "as a coercive order, that is to say as an order prescribing coercive
acts as sanctions."'0 And in open contradiction to his statement that the
Pure Theory of Law does not refer to any internal characteristic of each
legal norm, Professor Stone says (without quoting a statement of my

writings):
Though Kelsen seems at points to say that the specific difference which distinguishes a legal norm from other norms is not any internal characteristic of that
norm but its place within a system of norms, it is clear that he regards at least
one internal characteristic of a norm as essential. That is that the norm must
be sanctioned, that is, it must consist of a direction as to what ought to be done
in case the sanctioned norm contained in it is disobeyed.1'
That it "seems at points" that I say there is no internal characteristic of

the legal norm cannot be true if "it is clear" that I regard one internal
characteristic of the legal norm. Besides, Professor Stone does not present correctly my opinion on this point exposed in my main work. It is
not the fact that legal norms provide for sanctions that distinguishes
them from other, especially from moral, norms (as I assumed in my ear-
lier writings); for-as I say expressly in my Reine Rechtslehre-the

moral norms, too, provide for sanctions. But these sanctions are notlike the sanctions of legal norms-coercive acts, but approval of the behavior in conformity with, and disapproval of the behavior contrary to,
the moral norms."2
Professor Stone's statement that I think the distinction between a

static and a dynamic basic norm "represents a distinction between nonlegal and legal normative orders"'3 is without foundation. In my General Theory of Law and State, which Professor Stone in this connection
8. See id. at 24, 34-36, 39, 45-55, 60-69, 114-16, 150, 244, 329.
9. HAUPTPROBLEME DER STAATSRECHTSLEHRE 205 (1st ed. 1910).

10. LEGAL SYSTEM AND LAWYERS' REASONINGS 104 n.29a (1964).
11. Id. at'106.
12. REINE RECHTSLEHRE 64 (2d ed. 1960).

1132 STANFORD LAW REVIEW [Vol. I7: Page I 28
quotes, I presented first, as an example of a norm

static basic norm, a system of moral norms."4 But
ward I referred to moral norms whose objective

dynamic basic norm. The example is: the validity
"Do not lie," directed by a father to his child, based

on the dynamic basic norm: "Obey the commands of God" who com-
manded to obey the commands of your father. Thus I do not only-as

mentioned above-refer to the static principle within a legal order under
a dynamic basic norm, but also to a dynamic basic norm of a moral order.
Besides, later Professor Stone admits this expressly by referring to the

last-mentioned example.'5
II. PRESCRIPTION AND DESCRIPTION
A. Rechtsnorm and Rechtssatz
In order to avoid the confusion of legal norms prescribing a certain

human behavior and statements made by the science of law describing
legal norms, I suggested speaking in the latter case of Rechts-Satz as distinguished from Rechts-Norm. This was merely a terminological suggestion. I myself never confused the legal norm with the statements of
the legal science whose object is legal norms. Already in my Hauptprobleme der Staatsrechtslehre (i9ii) I distinguished between the law,
i.e., norms whose essence is to stipulate that something ought to be done,
and the science of law whose object is norms.'6 Professor Stone says that
I now-in my Reine Rechtslehre-admit the confusion. He speaks of

"this now admitted confusion."'7 But there I do not at all admit that I
have been guilty of this confusion. On the contrary! I insist on having
distinguished norms and statements about norms already in my Haupt-
probleme der Staatsrechtslehre and in the first edition of my Reine

Rechtslehre. I only say that "terminologically I did not clearly enough
characterize the difference in question" ("[I]ch habe diesen Sinn nicht
klar genug gemacht, da ich den Unterschied zwischen Rechtssatz und
Rechtsnorm noch nicht terminologisch zum Ausdruck gebracht

habe. )" The meaning of the two terms Rechtsnorm and Rechtssatz
used in the Pure Theory of Law is as clear as the meaning of words can
be. Professor Stone asserts that my language "seems confused. The term
'Rechtssatz' seems incapable of designating without ambiguity a juristic
14.
15.
16.
17.
GENERAL THEORY OF LAW AND STATE 112 (1945).

LEGAL SYSTEM AND LAWYERS' REASONINGS 105 (1964).
See HAUPTPROBLEME DER STAATSRECHTSLEHRE 6-7, 15 (1st ed. 1910).
LEGAL SYSTEM AND LAWYERS' REASONINGS 102 (1964).
18. REINE RECHITSLEHRE 83 (2d ed. 1960).
proposition about law, as opposed to a legal nor
law) ."19 That the term Rechtssatz is "incapable of

tion of the science of law describing legal norms,
view of the German language, unfounded. The

my-not Professor Stone's-mother tongue. Ther
myself in questions of the use of German words

Professor Stone. And, since I say precisely what I
term Rechtssatz, there is not the slightest reason
guage is "confused."
Professor Stone maintains that "while Kelsen ha
[the confusion of legal norm and proposition a

words, it may be doubted whether even this latest
all the implications of the now admitted error."20

am confusing Rechtsnorm and Rechtssatz in my s
trine of the basic norm is the result of an analysis
ployed at all times for knowledge (Erkenntnis) of
Professor Stone interprets this statement to mean
creates the basic norm, which is in conflict with
cannot create a norm because it can only describe
the statement quoted by Professor Stone means o
has always been presupposed by those who interpre
ing of the norm-creating acts as their objective m
Rechtslehre, I say expressly: "The science of law,
norm, does not arrogate a norm-creating authority
ring to the basic norm" may mean-and I explain t
my work-it certainly does not mean that the s

this norm.
Without quoting a statement from my writings Professor Stone maintains:

The fact . . . that Kelsen's theory at its formative stage did not clearly distinguish the legal norms . . . from the propositions about law . . . , sheds revealing light on one of the most dogmatic of Kelsen's early positions. This is that
a judge (and indeed any lawyer) must, in order properly to perform his function, operate in accordance with the pure theory of law.... As soon, however,
as they [the propositions about law] are distinguished, as Kelsen now admits
they must be, then it is clear that the propositions of the pure theory of law are
mere jurists' propositions about law, and that they do not bind the judge, in
the way in which legal norms bind him.23
19. LEGAL SYSTEM AND LAWYERS' REASONINGS 102 n.25 (1964). (Emphasis in original.)
20. Id. at 102.
22. Id. at 208.
23. LEGAL SYSTEM AND LAWYERS' REASONINGS 102-03 (1964).
1134 STANFORD LAW REVIEW [Vol. I7: Page II28
Never, not even in the earliest formulation of the Pure The

did I express the foolish opinion that the propositions of the
of Law "bind" the judge "in the way in which legal norm
Insofar as the judge in performing his function of applying

law adopts a theory of law his position is the same as that o
lawyer. And as far as the lawyers are concerned, I tried, of
convince them that my theory is correct, as everybody wh
theory tries to convince others of its correctness. But this d
that I considered the propositions of the Pure Theory of La

binding. When I said in my Reine Rechtslehre "that the oug
tions of the science of law describing the law do not oblige
anybody to anything,"24 I expressed a thought which was se
me from the very beginning of my work in jurisprudence.
On page I21 Professor Stone repeats his unfounded reproa

I gave the impression and never corrected it that all jurists an
titioners who did not work with my theory "were not enga
proper role." And he adds: "It has taken a long time for W
nek's distinction of I928, between the tasks of the Erkennt

(lawyers of cognition) and the Tatiuristen (lawyers of action
fully to Kelsen's awareness."25 This distinction could not
awareness at all. In a pamphlet published in I928 entitled Sch
Rechtswissenschaft (Creative Science of Law), not quoted by
Stone, Walter Jellinek distinguished "Entscheidungs-, Bezieh
Tatiuristen" (lawyers of decision, of relations, and of act

characterized Entscheidungs- und Beziehungsiuristen as
juristen. The function of the Entscheidungsiuristen is-a
Jellinek-the decision of cases; the function of the Bezieh
is the examination of the relations of the law; the function

juristen is to bring about certain effects on the law.26 With
guishing between the different functions of creating and a
and legal politics on the one hand, and science as a cognition
the other hand, Jellinek tries to show that the task of a Rech
that is, of a representative of the science of law, is not only
the law but also to work as an Entscheidungsiurist and as a

The main purpose of the pamphlet is to demonstrate that th
law is not only cognition but also creation of law, a "creativ
This is a view directly contrary to my theory of law.
What Professor Stone had in mind when he said Jellinek's
24. REINE RECHTSLEHRE 75 (2d. ed. 1960).
26. SCHOPFERISCHE RECHTSWISSENSCHAFT 6-7 (1928).
27. Id.at 15.
came too late to my awareness can be understood onl

consideration the title of the chapter in which this s
"Limitations of the Pure Theory of Law," and the

the overweening claim to monopolise both juristic
cerns, it would be clear that analytical jurisprudence
Theory of Law], being only a limited phase of merely

could not assume to decide or influence greatly the m
tween totalitarianism and democracy."28 To decide
systems is a function of politics, not of science, and

science of positive law, a distinction upon which the P
insists. Its very essence is and always has been tha
jurisprudence in the true sense of this term (not in

Walter Jellinek uses it), and not Tat-jurisprudence, w
is science, not politics. As early as my Hauptproblem
lehre (I9IO) I rejected the mixing up of a theory o
ethical-political speculations.29 Professor Stone contin
to the world from such late publications as What Is J

may always have been to his intimates that he [Ke
liberal democrat, and that 'purity' in this aspect of hi
with commitment to freedom as a lawyer-citizen."30 I
body who has read my works-and not only to my

my theory of law from the beginning-and not only
lished What Is Justice?-has nothing to do with m
as a liberal democrat. "Purity," as I use this term, ref
of law, not to my political thinking. If the word

aspect of his thinking" refer-as we must assume f
to the immediately preceding words, "that he is a con

ocrat," Professor Stone misunderstands the term "pur
B. Imputation and Causality
One of the most essential contributions of the Pur

is the concept of "imputation" (Zurechnung) as differ
cept of causality. The Pure Theory states that the pri
tion is applied in the Rechtssdtzen (the propositions ab
the science of law describes its object, whereas the pr
is applied in the so-called laws of nature by which
describes its object.3' In Professor Stone's presentation

29. See HAUPTPROBLEME DER STAATSRECHTSLEHRE 367, 416 (1st ed. 19
DER STAATSRECHTSLEHRE vi (2d ed. 1923).
31. See REINE RECHTSLEHRE 22 (1934); REINE RECHTSLEHRE 78-86 (
imputation as an essential element of the Rechtssatz is

at all.
C. The Legal Norm as "Judgment" or as "Command"

Professor Stone maintains that according to the Pure Theory of Law:
"A legal norm is a 'hypothetical judgment' in which the disobedience

to the conduct prescribed is the condition of the sanction . *."..32 It is
true that in my Hauptprobleme der Staatsrechtslehre which appeared
in I9II, I defended the thesis that general legal norms are hypothetical
judgments, and that I maintained this view still in my Ailgemeine Staats-
lehre (I925) and in the first edition of my Reine Rechtslehre (I934).

But later I rejected it. In my General Theory of Law and Stzae (I945)
I distinguished the legal norm issued by the legal authority from the
statements formulated by the legal science about legal norms, and suggested calling the latter not "legal norms" but "rules of law in a descriptive sense." In this way I translated the term Rechts-Satz in contradis-
tinction to the term Rechts-Norm. In a section entitled "Legal Norm

and Rule of Law in a Descriptive Sense," I characterized the legal norm
expressly as an "imperative" or "command," these terms taken in a figurative sense, and I stressed the distinction between prescriptive legal
norms created by the legal authority and rules of law by which the sci-
ence of law describes its object, the legal norms. I said: "These statements, by means of which the science of law represents law, must not be
confused with the norms created by the law-making authorities."" And
in the following section, under the title "Rule of Law and Law of Nature," I said: "The rule of law, the term used in a descriptive sense, is a
hypothetical judgment attaching certain consequences to certain conditions."34 In this sentence I referred expressly to the descriptive statements
about legal norms, and not to the prescriptive legal norms which must
be distinguished from the former. I compared the "rules of law," that is,
the hypothetical judgments by which the science of law describes its object, the legal norms, with the hypothetical judgments, the so-called laws
of nature, by which the science of nature describes its object,35 in order
to show that a "judgment"-in German "Urteil"-is the meaning of an

act of cognition, whereas a norm is the meaning of an act of will. A judgment is by its very nature true or false, and elsewhere I said: "A norm
is incapable of being true or 'false' . .. 6 Hence, there can be

not the slightest doubt that according to the theory I presented in my
33. GENERAL THEORY OF LAW AND STATE 45 (1945).
34. Ibid.
35. Id. at 45-46.

36. Id. at 110.
General Theory of Law and State legal norms are not h
ments. In my The'orie Pure du Droit I distinguished

juridique (legal norm) and regle de droit (rule of law
that the rule of law [formulated by the science of law] is not
a hypothetical judgment .... However, the legal norm may

sented in the form of an imperative . . . . Even the so-cal
a tribunal is not a judgment in the logical sense of this term
prescribing a certain behavior of the individuals to whom it
In my Reine Rechtslehre I said: "Legal norms are not

is, statements about a subject matter of cognition. Leg
cording to their meaning, prescriptions and as such co
permissions and authorizations.""
Professor Stone says with respect to my distinctio

duty and legal responsibility: "Kelsen points out that it
sistent with the nature of law as a hypothetical judgm
duty upon A and the 'responsibility' or 'liability' on B."
pages 68 and 69 of the General Theory of Law and St
pages-as in the whole section on "Duty and Respons
point out that the distinction is consistent with the na
hypothetical judgment, since in this work I characte
expressly not as hypothetical judgments. In a footnote
tries to modify somehow the statements he makes in the
He says: "If, as Kelsen seems still to say in Theory 38, 'h
refers to the conditions on which the sanction attaches,

follow his further assertion that some 'individual legal
hypothetical judgments. He instances a court's senten
person to jail."'" I did not say that some individual norm

thetical judgments," but: "There are, however, individu
have no hypothetical character";42 and: "Also an indi

have . . . hypothetical form."43 I used in this connectio
pothetical" in the sense Kant in his Grundlegung zur

Sitten distinguishes between "hypothetical" and "cat
tives.44 The reason why it is "difficult" for Professor

the assertion to which he refers can only be that he doe
zance of what I said in the work he quotes.

37. THEORIE PURE DU DROIT 42 (1953).
38. Id. at 44.

41. Id.at 1l n.50.
43. Id.at 38.
44. IV KANT'S WERKE 413 (Akademie Ausgabe 1903).
1138 STANFORD LAW REVIEW [Vol. I7: Page II28

D. John Austin's View About Legal Duty and Command
Professor Stone quotes John Austin's definition of law as "a co
relating to the general conduct of the subjects, to which comma

sovereign authority has given legal obligation by annexing a san
penalty in case of neglect";45 and in a footnote he says: "In a
passage in Theory 62-63, Kelsen states it to be a main shortco
Austin that he failed to define a rule of law in precisely the way
Austin did here define it."46 In the chapter of my General Theo
Law and State, to which Professor Stone refers, I quoted Austin
ments: "Command and duty are, therefore, correlative terms

be obliged to do or forbear,' or 'to lie under a duty or obligation
or forbear' is to be liable or obnoxious to a sanction, in the even
obeying a command."48 My objection was: "If, as Austin presum
legal duty is a consequence of the sanction, then the behavior w
is our legal duty to observe cannot be identical with the behavio
the legal norm commands. What is commanded can only be t
tion."49 In Austin's definition of law quoted by Stone, "the gene

duct of the subjects," that is, the content of the obligation, not t
tion, is commanded. Hence my objection to Austin's theory is
compatible with the definition quoted by Stone.
E. The Norm as the Meaning of an Act of Will
In close connection with the abandonment of the view that g

legal norms are hypothetical judgments is a change of my att
respect to the so-called doctrine of will (Willenstheorie) whi
jected in my writings prior to the second edition of my Reine R
lehre. There I characterized the norm in general and the legal no
particular as the meaning of an act of will;50 and I declared that
changed my previous view that a resolution of parliament must
understood as the expression of the acts of will of the majority
members; that I now think that even a member of parliament wh

for a bill whose content he does not know expresses his will that
should become law.5" But Professor Stone ignores these statemen
says that I attack the command notion "on the ground that it int
an unnecessary element of will into the concept of law."52 This is
45. LEGAL SYSTEM AND LAWYERs' REASONINGS 75 (1964).
46. Id. at 75 n.58.

47. 1 AUSTIN, JURISPRUDENCE 89 (5th ed. 1885).
48. Id. at 444.
49. GENERAL THEORY OF LAW AND STATE 62 (1961). (Emphasis added.)

51. Id. at7.
more astonishing since Professor Stone refers in thi
second edition of my Reine Rechtslehre, pages 4-5.

attribute to an author opinions which he has expres
III. VALIDITY AND EFFICACY
Professor Stone maintains that according to my doctrine: "For a

norm to be valid two requirements must be fulfilled. First, that norm
must be part of a system of norms. Second, the system of norms to which
it belongs must be efficacious . . . ." This, too, is incorrect. In my

Reine Rechtslehre I say: "The efficacy of the legal order as a whole and
the efficacy of a single legal norm are-just as the act by which the norms
or the single norm are created-conditions of the validity . . .."55 This
means that the conditions of the validity of the legal order as a whole
and of a single legal norm are: for the legal order as a whole, the acts
by which the norms of the legal order are created; for the single norm,
the act by which this norm is created; and, in addition, the fact that the
legal order as a whole and the single legal norm are, respectively, effective.
My thesis that "the reason of the validity of a norm can never be a
fact"' is-according to Professor Stone57-incompatible with my view
that a legal norm, in order to be valid, must be by and large effective.

Professor Stone says: "[W]hen the efficaciousness of the system as a
whole is not given, the validity of each offered norm also depends in
part (even according to Kelsen's own account) on the question of fact
whether men actually do behave in a certain manner towards the system
of norms as a whole."58 The problem in question is the relationship between validity and efficacy of legal norms. I deal with this delicate problem very carefully in my Reine Rechtslehre.59 A whole section, "Geltung
und Wirksamkeit,"6" is devoted to this problem. The essence of my view
of the relationship between validity and efficacy of legal norms is that
"the efficacy of the legal order is only the condition of validity, not the
validity itself."'" On page 2I9 I say that positing (Setzung) of the norms
and efficacy (Wirksamkeit) of the norms are "conditions of the validity"; efficacy in the sense that the established legal norms must be by
53. Id.at 112 n.51.
54. Id. at 103.

56. Kelsen, On the Basic Norm, 47 CALIF. L. REV. 107, 108 (1959).
58. Id. at 104.
59. REINE REcHrsLEHRE 10-15, 48-51, 78, 82, 91-93, 208, 212, 215-21, 279-80 (2d ed.
1960).
60. Id. at 215.
61. Id.at 82.
and large obeyed and, if not obeyed, applied; othe

as a whole, just as a single norm, would lose it v
not identical with that which is conditioned.62 To
tinue: "Thus a human being in order to live, must
main alive also other conditions must be fulfill
nourishment. If these other conditions are not fu
life. But life is not identical with being born or
ished."63 The validity is conditioned by the effica
legal order as a whole just as a single norm loses its
become by and large effective. I call attention t
norm becomes valid before it can be effective. A co

a valid statute. Hence if a court applies a statute im
been enacted by the legislator it applies legal norm
effective, which become effective by their applica
fessor Stone ignores in his presentation of my vie

between validity and efficacy of legal norms.
In the same connection Professor Stone says: "K
us no means of distinguishing the efficaciousne
single norms from that of tlle system of norms a
fessor Stone understands by a "system" of norms i
an "aggregate of single norms" a legal order const
plurality of legal norms, I refer to my Reine Rech

"A legal order does not lose its validity by the f
norm loses its efficacy, that is to say that this lega
in some particular cases not applied. A legal ord
valid if its norms are by and large effective, that i

applied."66
IV. THE BASIc NORM
One of the main objects of Professor Stone's criticism is my theory of

the basic norm. Professor Stone says with respect to this concept that it
conceals
an ambiguity, swinging between, on the one hand, a norm that is at the top of
the pyramid of norms of each legal order, and on the other, some other norm
which remains outside this pyramid, and is thus wholly meta-legal, and amounts
to a general presupposition requiring that in each and every legal order "the
constitution" shall be obeyed.67
62. Id. at219.
63. Ibid.
64. Seeid.at 11,218.

July I965] REPLY TO PROFESSOR STONE II4I
In the following sentence Professor Stone main
is, not earlier than in the second edition of my

"that the basic norm is outside the legal system
legally relevant functions."68 That means tha

Stone-I understand by the "basic norm" a norm
of positive law, and at the same time a norm w

tive law. This interpretation is without any fou
I have always and not only in the second edition
clearly distinguished between the basic norm
thinking as the constitution in a legal-logical se

in a positive legal sense,69 and I have always insi
as the constitution in a legal-logical sense-not t
tive legal sense-is not a norm of positive law, th

ited," i.e., created by a real act of will of a lega
supposed in juristic thinking.70 It is, unfortunat

late adequately into English the German terms
between the basic norm and a norm of posit
namely, that the basic norm is not gesetzt by a rea
gesetzt in juristic thinking. I refer in this resp

lehre7' and my General Theory of Law and Stat
in 1945, fifteen years before the second edition
It is as a norm presupposed in juristic thinking
it is presupposed) is "at the top of the pyramid
order." It is "meta-legal" if by this term is u
norm is not a norm of positive law, that is, not

act of will of a legal organ. It is "legal" if by th
everything which has legally relevant functions
supposed in juristic thinking has the functio

validity of the subjective meaning of the acts b
of a community is created. In this respect the
is-to a certain extent-similar to the natural-l
which a positive legal order is valid if it corres
The natural law is not considered to be "meta
positive law. But there are also essential differen
of the basic norm and the natural-law doctrine

chapter "Theorie der Grundnorm und Naturr
Rechtslehre.73 The main difference is that the
68. Ibid.
69. See ALLGEMEINE STAATSLEHRE 84, 104, 248-55 (1925).
70. Id. at 104.
71. REINE RECHTSLEHRE 66 (Ist ed. 1934).
72. GENERAL THEORY OF LAW AND STATE 115-16 (1945).
I I42 STANFORD LAW REVIEW [Vol. I7: Page I I28
legal order is completely independent of the basic n

the objective validity of the norms of the positive
content of this order, can be derived; whereas acco
law doctrine a positive legal order is valid only if
tent corresponds to the natural law. Hence there c
tween a positive legal order and its basic norm, wh

of view of a postivistic theory of law a conflict be
and what is supposed to be natural law is quite p
is mentioned by Professor Stone.
Professor Stone says: "[O]n his [Kelsen's] own
norm [thus he calls the basic norm] must be such, n

titude of norms 'derive their validity' from it, but
in some way that the system of norms by and larg
I do not maintain that the basic norm "guarantees"
legal order to which it refers. What I say is that the ba
to a coercive social order which is by and large eff

we presuppose the basic norm only if there exists
by and large effective. I say in my Reine Rech
norm refers only to a constitution which is the bas
ercive order. Only if the actual behavior of men
large, to the subjective meaning of the acts directed
subjective meaning is considered also as their objec

I say further: "The reason for the objective validit
. . . the presupposed basic norm according to which
a constitution which actually is established and by
and consequently one ought also to obey the norms
mity with the constitution and by and large effec
ing to my theory-the basic norm refers only to a
is by and large effective, and since the basic norm
ercive order and not the coercive order to the basi
sense that in the basic norm the actual establishmen
coercive order by real acts of will and the efficacy of t
the condition of the objective validity of the coerci

basic norm does not "guarantee" the efficacy of th
nothing to make this order effective. Therefore, I
the basic norm is a "self-dependent beginning," as P
prets my theory of the basic norm. For the basic n
normative order to which it refers and does not
75. REINE RECHTSL.EHEE 48 (2d ed. 1960).
76. Id. at 219.

77. See id. at 48.
asserts-depend on "the facts of men's actual behavior and

sanctions." The normative coercive order to which the basic
and on which it depends is not identical with these facts. Th

the normative order is a condition of its validity, not its va
In his criticism of my theory of the basic norm Professor
"[W]hat can the 'pure' theorist of law, as Professor Kelsen c
tell us about it [the 'nature and origin' of the basic norm] ?
says-without quoting a statement of my writings: "Kelsen
say that he can tell us nothing, since the question . . . is
one." I have never declared that I can tell nothing about the
origin of the basic norm. About no other problem have I sa
as about the basic norm. In the "Index" of my General Th
and State I refer to more than twenty different pages and i
of my Reine Rechtslehre to twenty-five different pages on

with the basic norm, the Grundnorm. The function of the
is-as I have frequently said-to make it possible to conside
tive meaning of the law-creating acts-which is an "oug
objective meaning, and thus as objectively valid norms. Prof

does not mention this function of the basic norm, which sh
does not understand the theory which he criticizes.
In view of the specific function of the basic norm pre

juristic thinking I call it "constitution in a legal-logical sens
distinction to the "constitution in the sense of positive law
constitution in the sense of positive law that the basic norm refe
tinguish these two concepts as clearly as possible. Hence Pro

has no reason to speak as quoted above of an "ambiguity,
between two norms.
An essential point of my theory of the basic norm, whic

Stone does not present correctly, is that it is not necessary t
the basic norm, that only if we presuppose it can we consid
order which is by and large effective as a system of obje

norms. Consequently, the foundation of the objective va
legal norms is conditional, conditioned by the presupposition

norm.8' Professor Stone's statement on page 200, "It is prec
the basic norm is not a legal norm that Kelsen insists that it i
thetical' . . . ," does not refer to the decisive point.
The basic norm is presupposed as a valid norm. Profes
statement, "For Kelsen then the apex norm is neither legall


80. Id. at 202.
81. Id.at 224.
II44 STANFORD LAW REVIEW [Vol. I7: Page I I28
invalid; it is a 'hypothesis,"'82 is without foundation
teristic of Professor Stone's critique that he in a footnote t
says: "Kelsen, however [!], now speaks of the 'validity'

in some special sense in which its 'validity' can be pres
is not the slightest reason to put the term "validity"
marks, and to say that the basic norm is-accordin
"valid" in a "special sense." These maneuvers cannot hi
Professor Stone withdraws in a footnote the statemen

the text. My characterization of the basic norm as "hy
exactly the same as its characterization as "presupposit
literal translation of this Greek term. In Reine Rech
this presupposition lies the ultimate but only condi
sense hypothetical reason for the objective vali

order."84
The problem that leads to the theory of the basic no

in my Reine Rechtslehre-is how to distinguish a legal
is considered to be objectively valid, such as the comm
officer to pay a certain sum of money, from a comm
same subjective meaning but is not considered to be
such as the command of a gangster.85 The difference c

do not consider the subjective meaning of the comman
as we consider the subjective meaning of the legal comm
officer-as its objective meaning because we do not p

former case-as we presuppose in the latter case-a ba
munist may, indeed, not admit that there is an essent
tween an organization of gangsters and a capitalistic le
he considers as the means of ruthless exploitation. For
suppose-as do those who interpret the coercive order i
objectively valid normative order-the basic norm. H
that the capitalistic coercive order is the law of the Sta

is that this coercive order, the law of the State, is obj
function of the basic norm is not to make it possible
cive order which is by and large effective as law, fordefinition presented by the Pure Theory of Law-a lega
cive order by and large effective; the function of the
make it possible to consider this coercive order as an o
order. In my Das Problem der Souverdnitiit und die
kerrechts I said that it is the "quest for the reason fo

83. Id.atlO9n.42.
84. REINE RECHTSLEHEE 47 (2d cd. 1960).
85. Id. at8.
the law" (die Frage nach dem Geltungsgrund des Re
to the presupposition of the basic norm.86 In my Ailg
I said that the Grundnorm is the Geltungsgrund, that

the validity, of the legal system;87 and further that th
Grundnorm is "to achieve the objective validity of the s
pendent of the subject's wishing and willing .*."..88
my General Theory of Law and State I said: "The pu

o . . . seeks the basis of law-that is, the reason of its
juristic hypothesis-that is, a basic norm . . . .*389 The
with this problem is entitled: "The Reason of Va
Norm"; and there I said: "[T]he reason for the validi
presupposition, a norm presupposed to be ultimately val

norm. The quest for the reason of validity of a norm
by a highest norm which is the last reason of validity w
system . . . ."9 Since it is a peculiarity of law that it r

creation and a legal norm is valid if it is created in a wa
another legal norm,91 the basic norm is the ultimate r
lidity of the legal order because it authorizes the histori
lator. The basic norm "being the supreme reason of the

whole legal order constitutes its unity."92 I also said w
basic norm: "The ultimate hypothesis of positivism is t
rizing the historically first legislator."93 This statemen
is a "legislator," that is, a "law"-maker, even if we do no
basic norm. When in the following sentences it is sa
norm confers "law-creating power" on the historically f
makes it possible "to interpret the empirical material wh

as law as such,"94 by "law" I meant objectively valid no
from all that is said before about the basic norm as "th
lidity." In my essay: "On the Basic Norm,"95 I formula

which leads to the assumption of the basic norm as fol
for the reason of the validity of a positive legal order
"reason of the validity," not for the criterion of a legal
fessor Stone's statement: "Kelsen in fact usually states
classifying a legal norm in terms of the common depend
86. DAS PROBLEM DER SOUVERXNITXT UND DIE THEORIE DES V6LKERREC
87. ALLGEMEINE STAATSLEHRE 84 (1925).
88. Id. at 251.
89. GENERAL THEORY OF LAW AND STATE xv (1945).

90. Id. at 1-11.
91. Id. at 124.
92. Ibid.
93. Id.at 116.
94. Ibid.
95. On the Basic Norm, 47 CALIF. L. REV. 107 (1959).
96. Id. at 108.
I146 STANFORD LAW REVIEW [Vol. I7: Page 1128
titude of norms for their validity on that single no
here to call 'the apex norm,"' is not correct. Th
answer the question as to whether the existing ord
the question as to what is the reason for the validit

In a following sentence I said with respect to the b
is the reason of the validity of the Constitution and
of the legal order established in conformity with
a norm presupposed in our juristic thinking ... .

my Reine Rechtslehre I said: "The function of t
found the objective validity of a positive legal ord
of a coercive order by and large effective, crea
beings."99 In Grand Larousse Encyclopedique,'00
find the following statement: "Norme hypoth&tiq
mentale, norme supposee par Kelsen comme etant
juridique, dont elle constitue la source logique de v
writings the term "basic norm" has no other meani

dation when Professor Stone maintains that without
basic norm, "he [Kelsen] cannot decide whether wh

legal order at all," and that for this reason the Pu
"empty and inapplicable to any legal problems."'10
In his presentation of my distinction between a
principle, characterizing two different types of n
fessor Stone, substituting for my concept of the b
of an "apex norm," confuses the basic norm as a no
ristic thinking, which I call "constitution in a lega
the "constitution in a positive-legal sense," which
and expressly from the former. For he says: "Kels
order cannot be 'static' . . ."; and he advances the f
alleged thesis of the Pure Theory of Law: "This dis
static and a dynamic principle] cannot be taken so f
apex norm of a legal order can never contain stati
precisely the position with constitutions which in
rights' . *"9102 I do not assert that a legal order ca
expressly in my General Theory of Law and State:
a positive legal order . . . has an entirely dynamic
phasize in this work: "The static principle, on the
98. On the Basic Norm, 47 CALIF. L. REv. 107, 108-09 (1959).

'100. VII GRAND LAROUSSE ENCYCLOP?DIQUE 821 (1963).
102. Id.at 110.
gains access to the system of positive law"; and I explain

as follows:
The constitutional legislator does not determine merely organ

but also a legislative procedure; and, at times, his norms, tha
tion [in the sense of positive law], determine in the so-called fu
and bills of liberty the content of the laws, when they prescri
what they should and should not contain.104
And in the Reine Rechtslehre I say:
The static and the dynamic principle are contained in one and
of positive norms, if the presupposed basic norm, according
principle, only authorizes a norm-creating authority, and if t
the authorities instituted by it establish not only norms whi
norm-creating authorities but also norms prescribing a defi
individuals subjected to the norms.'05
Professor Stone does not mention this essential element

tion between the static and dynamic principle. He only s
note: "Kelsen himself in Theory I24-25 says the 'materia
may determine 'the contents of future laws.'""
Confusing the basic norm as the constitution in a lega

with the constitution in a positive legal sense, Professor
my theory of the basic norm that an apex norm not only
making competence but may also designate "the procedu
and form,' by which alone 'the designated persons can ex
creating power."'"107 I have never denied that the constitu
tive legal sense may perform such functions. When,
Theory of Law and State, to which Professor Stone refers

basic norm merely authorizes a certain authority endowe
creating power,'08 I meant-as is evident from the preced
-the basic norm as constitution in the legal-logical sense.
Professor Stone again attacks my theory of the basic no
ter entitled, "Mystery and Mystique in the 'Basic No
means he explains in seven questions; and my answers to

will show that there is nothing "mysterious" at all in th
arouses such an anger in Professor Stone's mind. He asks:
i. When Kelsen refers variously to "basic norm" (Grundnorm

(Ursprungsnorm) and "constitution in the legal-logical sense
im rechtslogischen Sinne), is he naming the same entity? If so,
semantically appropriate for the same entity?109
104. Id. at 401.

106. LEGAL SYSTEM AND LAWYERS' REASONINGS 110 n.44a (1964).
107. Id.at 110.
I148 STANFORD LAW REVIEW [Vol. I7: Page I I28
My answer: That these terms refer to the same entity P
himself seems to suppose by formulating his question
semantically appropriate for the same thing is indeed my

wise I would not use them in this way.
2. Does Kelsen offer the "basic norm" as merely an intellectua

cognition by jurisprudents of a legal order as a whole? Or do
the Ursprungsnorm, the source to which lawyers too must trac
of all the norms of the legal system? In his own language, is
("transcendental-logical") or is it a "legal" concept?110
The answer is: The basic norm is not an intellectual "

cause-as I mentioned before-it is not "created" by jur
but presupposed in it, if we consider-without referring

authority such as God or nature-the subjective meaning
which the constitution (in the positive-legal sense of the
lished and the subjective meaning of the acts established
this constitution to be their objective meaning, and if w
these meanings (which are norms) as objectively val
function is of legal importance, and because the question

sible to consider the subjective meaning of the acts conc
objective meaning is analogous to the question characteri
transcendental-logical (how is it possible to have a nonm
terpretation of the facts ascertained in the laws of natu
science of nature describes its object)-for these reasons is
at the same time a transcendental-logical and a legal conc
3. In part consequentially on the above, does he say that the
not a part of the legal order (in our word, "extra-systemic") bu

position of the legal order directing obedience to the "constit
sense"? Or does he say it is a part of the legal order (in our

systemic"), the apex norm of the system of norms?"'
This question I have answered in the preceding explanatio
4. Again in part consequently, are Kelsen's formulations of t

intended to express a uniform "basic norm" for all legal order
-"The constitution in the legal sense ought to be obeyed"? O
tended to be a statement matrix with a blank to be separatel
legal order, in the pattern "The constitution in the legal sense
A, or Legal Order B, etc.) ought to be obeyed"? (The latte
different "basic norm" for each legal order, A, B, etc.). Or do

the blank is in each case to be filled in with the actual norm
tuting the particular legal order's "apex norm"'?"12
110. Ibid.
111. Ibid.
112. Id.at124-25.
Nobody who has read what I have said about the

any doubt about my view that for each positive legal order a specific
basic norm referring to the constitution (in the positive legal sense) of
this legal order is to be presupposed if the subjective meaning of the acts
by which this constitution is established, and the subjective meaning of
the acts established on the basis of this constitution, creating positive legal
norms, are to be interpreted as their objective meaning. Since different
legal orders are based on different constitutions, different basic norms are
to be presupposed. Each of these different basic norms refers to a different positive constitution. What is common to all these basic norms is that
they refer to a positive legal constitution on the basis of which a positive
normative coercive order is established which is by and large effective.
All this stands to reason and has been questioned only by Professor Stone,
though the same Professor Stone, presenting my theory, says: "[T]he

difference between different systems of legal norms (English, for example, as opposed to American or Soviet) lies in their respective apex
norms. "113
5. What does Kelsen mean by calling the "basic norm" a "hypothesis" or "a
hypothetical norm"? Are these the same thing? Or are they only related but
not identical notions? Or the same notion applied to different entities? Or
both of these?"14
This question is answered in the preceding explanations. In addition, I

call the attention of Professor Stone again to the fact that if I call the
basic norm a "hypothesis" or "hypothetical" I am using the term in its
literal meaning: pre-supposition = Voraus-Setzung. The term "hypothetical," it is true, I am using in some connection-not with respect to
the basic norm, but with respect to positive general legal norms-in the
sense in which Kant uses the term when he speaks of "hypothetical" in
contradistinction to "categorical" imperatives. This too is evident to an
attentive reader.
6. When Kelsen says that the "validity" of the "basic norm" is presupposed,
does he mean that though its validity is to be established by reference to other
norms, these latter are not the concern of the jurisprudent or lawyer? Or does
he mean that its validity is to be established by reference to criteria which are
factual, and not normative, and also not the concern of the jurisprudent or
lawyer? Or does he mean both? Or that it is immaterial which?"15
There cannot be the slightest doubt about my view that the basic norm
-if presupposed to be valid-refers to the norms of a legal order and
113. Id. at 108.
114. Id.at125.
115. Ibid.
II50 STANFORD LAW REVIEW [Vol. I7: Page I I28

that a condition of their positivity is that they are by
tive. When Professor Stone imputes to me-without q

ment of my writings which could justify it-as poss
opinion that the positive legal norms are "not the conce
prudent or lawyer," I am forced to doubt the objectiv
cism. This doubt is confirmed also by other passages in P
chapter on my theory. For instance, concerning the

tween the Pure Theory of Law and logic, I have reje
expressed by some writers that this theory is merely a

have declared that it is not a juristic logic but a general
which contains certain logical considerations. Professor
rectly quotes this statement on page 134. My own view
nature of the Pure Theory of Law is for everybody a sufficie
this theory is not mentioned in A. G. Conte's "Biblio
Giuridica.""'1 But Professor Stone, in spite of quoting my

plains the omission of my work from Conte's Bibliograf
that my use of basic terms of formal logic is-as Profess

"often loose."
7. What is the bearing, if any, of Kelsen's "purity" thesis on

aspects of the "basic norm"? Is the method of cognition of t
intended to be "pure"? If so, in what sense? Or does Kel
emphasis that the "basic norm" stands "outside" the legal sy

he recognises that the matters affecting the "basic norm" a
his requirement of juristic purity of method?117
It stands to reason that the postulate of purity refers to t

of law including the theory of the basic norm, and that
ticular "bearing" of the "purity thesis" on any aspect of
In which sense the principle of purity is to be understood
has quite correctly formulated on page ioi of his book.11

recently "re-emphasized" that the basic norm stands o
116. 38 RIvISTA INTERNAZIONALE DI FILOSOFIA DEL DIRITTO 120 (1961).
118. On page 109 Professor Stone refers to a statement made by Profes

mante y Montoro: "Positive law, the norms strictu sensu he [Kelsen] also h
Bustamante y Montoro, Kelsenism, in INTERPRERATIONS OF MODERN LEG
(Sayre ed. 1947). This statement has no basis in my writings. What I meant
"pure" refers to the theory of law, not to the law; the law is not "pure," only
be "pure." That the Kelsenite system, as Professor Stone interprets Bustamante
moves to the point when even legal norms strictu sensu "seem to be exclud
and ideological," LEGAL SYSTEM AND LAWYERS' REASONINGS 109 (1964), is in
fact that I again and again emphasize that the Pure Theory of Law is a theor
a theory of positive law as a system of legal norms. Professor Stone quote
mante's sentence: "Only the contentless content of formal juridical logic is fre
stigma and can be pure." Whether this is correct is here of no importance. Pro
it, gives the impression that Bustamante's attitude towards the Pure Theory
his-Stone's-rejection of this theory. This, however, is not true. Bustamante
with the greatest respect. See, eg., De Bustamante y Montoro, supra at 50.
July 1965] REPLY TO PROFESSOR STONE II51
system is simply not true. I have always, and f
spoke of the basic norm, maintained that th
norm, that is, not a norm created by an act of w

presupposed in juristic thinking. Whether it "
the legal system depends-as I said before-on th
cept of "legal system." It is difficult to believe
not answer all these questions himself, and n

unwilling to understand what I say.
V. THE HIERARCHY
A. International and National Law
The main objection which Professor Stone advances against my

theory of the relationship between the national and international legal
order concerns my view that even if one proceeds from the sovereignty,
i.e., the primacy of one's own national legal order, a monistic interpreta-
tion of this relationship results."' Professor Stone says: "He [Kelsen]

pronounces that it is 'logically impossible to interpret the world of law
by proceeding from the sovereignty of different States.'"1"20 He refers
to a "tertium quid" which I-as he says-"ruled out as 'logically impossible.'" "This tertium quid is that, as between the international legal
order and a particular national order, primacy may simply be determined
by the legal order which has the question before it."'' But Professor
Stone ignores the fact that if a national legal order presents itself as sovereign it cannot recognize the other national legal orders as sovereign,
because the sovereignty of one State or national legal order-as long

before me Leonhard Nelson has shown122-is incompatible with the
sovereignty of the other States. The chapter of my General Theory of
Law and State in which I formulated the thesis which Professor Stone
rejects is entitled "Sovereignty as Exclusive Quality of Only One Order."
And, what is even more important, in my General Theory of Law and
State to which Professor Stone refers in this connection, I did not say, as
Professor Stone quotes, "that it is 'logically impossible to interpret the
world of law by proceeding from the sovereignty of different States."'
On the contrary! I actually said:
It is, however, logically possible that different theorists interpret the world of
law by proceeding from the sovereignty of different States. Each theorist may
presuppose the sovereignty of his own State . . . . Then he has to consider
120. Id. at 119.
121. Ibid.
122. NELSON, DIE RECHTSWISSENSCHAFT OHNE REcHT 60 (1917).
II52 STANFORD LAW REVIEW [Vol. 17: Page II28
. . . these national legal orders [of the other States] as part

of his own State, conceived as a universal legal order.123
And in my Reine Rechtslehre I said: "[I]n case of the p

al law . . . the starting point of construction may be a
order whatever; but always only one national legal ord
Stone says: "It is only if the jurist is completely blind
any national legal order but his own in relation to the
the choice of the national order can be said to yield a
sis."'125 That it is not necessary to be "blind" to th
national legal orders which are not the starting point o
is shown by the statement on page 385 of the Gene
and State (and the analogous statement on page 335 of
lehre) that "the other national legal orders . . . have
as inferior to the legal order of the State which first is

fore alone can be, presupposed to be sovereign."
In my General Theory of Law and State'26 and in m

lehre'27 I have analyzed very carefully the relationship
tional and national law. But Professor Stone ignores al

I advocated in these works for the doctrine he rejects.
nection Professor Stone says:
And it also becomes clear that one main source of Kelsen's

matter is his use of the term "national law" (or "national l
because it is one phrase, it must also be one "law" (or "leg
either the crudest nominalism, or it is an abstraction from
national legal orders. And while abstraction from the multi
becomes a rather serious one when the theorist then purpo
assertion of logical impossibility which depends precisely o
ments left out by the abstraction.128
This objection is so completely untenable that it hard

It is above any reasonable doubt that my use of the te
(or "national legal order") has nothing to do with "n

it is an abstract concept comprehending all the nat
tional legal orders. To say that I "ignore" the mult
tional legal orders, that I use the term "national law
is one phrase, it must be one "law" is an inexcusable m

in view of the fact that I repeatedly refer to the nation

126. GENERAL THEORY OF LAW AND STATE 328-88 (1945).

128. LEGAL SYSTEM AND LAWYERS' REASONINGS I 1 9-2 0 (1964).
the plural)-for instance, in my above quoted sta
in the chapter to which Professor Stone's critique r

B. State and Law
Professor Stone maintains that there is a difference between my

"earlier" and my "later" doctrine of the relationship between law and
State. "Kelsen's earlier doctrine," he says,
had been that the current belief that law and State were two different entities
is an illusion created by personifying the legal order and then "hypostatising

the personification and asserting this figurative expression to be a real being,
and so opposing it to law." . . . In his later statement Kelsen now resolves
the State rather into a kind of corporation, differing from other corporations
in the legal order which constitutes it.129
This presentation of my theory of the relationship between law and State

is only correct insofar as in my Reine Rechtslehre I specified my doctrine
that State and law are identical, characterizing the State as a specific
legal order.'30 On page 289, I said under the heading, "The Identity of
State and Law":
In order to be a State the legal order must have the character of an organization
in the specific sense of this term, that is to say: it must institute special organs
for the creation and application of the norms which form this order; it must
exhibit a certain degree of centralization. The State is a relatively centralized
legal order.
As such it is a corporation. For on page 293 I said:

The State, too, is a corporation, that is a community constituted by a normative
order which institutes organs functioning according to the principle of division
of labor; and this normative order constituting this community is the legal
order, which, in contradistinction to the international legal order, is called national legal order.
On page go:
If we say that a certain community is constituted by a normative order regulating the mutual behavior of individuals we must be aware that order and
community are not two different objects but one and the same object, that the
community is nothing else but this order; and that what is common to the
individuals of which we say that they form, or belong to, a community, is
nothing else but the normative order regulating their mutual behavior.
This statement, which is essential to my theory of the State as a commu-
nity and corporation, and which shows that there is no essential differ129. Id. at 118.
130. See REINiE RiEcHTsLE-HRE 289-320 (2d ed. 1960).
II54 STANFORD LAW REVIEW [Vo1. I7: Page II28
ence between my earlier and my later doctrine, is

by Professor Stone.
C. The Process of Derivation
Professor Stone maintains that what my "pure"

law means "is clear enough, once we are given or c
stitution' of a legal order. It means that the law-asc
jurist (lawyer) must then concern itself solely with
vation' between norms which are offered as 'leg

tion."13' This statement-for which he does not q
my writings-especially that the purity of the met
jurist must concern himself solely with the relatio
without foundation. The Pure Theory of Law de
problems. As far as the problem of "derivation" is c

is not-as Professor Stone asserts-that "derivation"
in which a statute, created by the legislator, is deriv
tion, or a judicial decision from a statute) is merel
Professor Stone says with respect to the derivation
English Constitution: "Kelsen seems to say that

merely by asking whether this regulation [the s
indirectly promulgated by the King-in-Parliament
process, i.e., one not involving reference to the real

or values."'32 Professor Stone attributed to the Pur
view "that any legal norm of the system derives f

and "that such derivation can be 'pure.'""133 I have
defended the nonsense that the derivation of the po
of the objective validity of these norms from t
"pure," or that the legislative process is "one not in

the realm of existential facts or values," which mea
has not to consider the facts to which the norms w

and the values which he wants to constitute by the
"the method of law-finding" in which "the fact-fi

part, is ctpure," as Professor Stone imputes to the
on page 127. For the postulate of purity does not r
of law-creation and law-application but-as ment
theory, that is, to the cognition of law. A more rad

of my theory is not possible. With respect to the g
determination of a lower norm by a higher norm
Rechtslehre: "The determination of the creation of

132. Ibid.
133. Id. at'107.
July i965] REPLY TO PROFESSOR STONE II55
higher norm may have different degrees. It can nev

that the act in question may not be considered to be
cation, and it can never go so far that this act ma
to be also an act of law-creation."'34 This applies not
between constitution and legislation, but also to t
statutes and judicial decisions. Since I insist upon th
tion not only of legislation but also of judicial decis
the legislation to the constitution and the relation of
to the statute which is to be applied cannot have a m
acter. That a statute is constitutional if it is in confo
visions of the constitution concerning the creation an
statute, and that a judicial decision is legal if it is in

the provisions of the statute to be applied concernin
the content of the judicial decision, is a generally ac

a specific doctrine of the Pure Theory of Law. But t
that the derivation of the lower from the higher nor

operation.
D. The Concept of Legal Personality
With respect to my theory of legal personality Pr

sents my characterization of the juristic and the so-c
as follows:
While the juristic personality of a physical person, howe

cation of a complex of norms regulating the behavior of
dividual," the corporate juristic person personifies "an or
havior of several individuals, . . . the common point of
those human acts which are determined by the order."'13
But he does not call special attention to the fact tha

statute of the corporation. Professor Stone continue
count in the General Theory of Lat and State, howev
cerned to show that there is an essential difference
personality of the physical person and that of th
word "however" in this statement seems to indicate

no difference between a physical and a juristic perso
"If the so-called physical (natural) person is a juristi
be no essential difference between the physical (n

what is usually exclusively considered as a 'juristi
essential differences are not excluded. I also said:

135. LEGAL SYSTEM AND LAWYERS' REASONINGS 117 (1964) (quot
THEORY OF LAW AND STATE 99 (1945) ).

136. Ibid.
II56 STANFORD LAW REVIEW [VoL. I7: Page 1128
the personification is thus in principle the same in

that a complex of legal norms is personified. "A diff
between the elements which give unity to the pers
norms."1138 This difference I do not characterize as
Stone continues:
Since, he [Kelsen] says, a corporation is "a partial legal order within the total
legal order constituting the State," the relation of "the State legal order" to a
corporate person is different from its relation "to human individuals upon
whom it imposes duties and confers rights." The former is a relation of "a
total to a partial legal order," corporate by-laws being a case of delegation.'39
With respect to the difference I have said:

The relation between the total legal order constituting the State, the so-called
law of the State or national legal order, and the juristic person of a corporation
is the relation between two legal orders, a total and a partial legal order, between the law of the State and the by-laws of the corporation. To be more
specific, it is a case of delegation.'40
It is clear that the last statement, "it is a case of delegation," refers only
to the relationship between the law of the State and the bylaws of the
corporation. In case of a juristic person the law of the State delegates
the bylaws of the corporation authorizing it to impose obligations and

confer rights upon the members of the corporation, whereas in case of
a physical person no such delegation of a partial legal order takes place.
The norms regulating the behavior of one and the same individualthe personification of which is the physical person-are norms of the
national, i.e., the total legal order, not-as the bylaws of the corporation
-a partial legal order different from the total legal order, the law of the
State. The law of the State, i.e., the total legal order, imposes obligations
and confers rights directly-and without an intermediary partial legal
order-upon an individual. But Professor Stone declares he is "unable
to follow this supposed distinction." He continues, "Does not an individual who is a legal person also bear such delegated power? Is it then
the plurality of individuals involved in the corporate power that is supposed to make some essential difference ?"'141 Professor Stone is unable
to follow the distinction because he ignores what I say about the difference between juristic and physical personality; hence he does not see
that the word "delegation" refers to the partial legal order, the bylaws of
the corporation, so that the difference exists even if the individual upon
138. Id. at 99-100. (Emphasis added.)
whom the law of the State directly confers rights d

gated powers."
VI. THE PURE THEORY
In his more emotionally than rationally determin

"pure" theory of law Professor Stone says: "Why sh
study of law be forbidden the benefit of the compl
by an attempt to banish from its domain all theorie
is, analytical) theories, for instance those of ethical
cern."'142 The answer is: because I insist on the diff
object and method of these theories and a pure theo
answer is given by Professor Stone himself. For he a
ity" of method I mean "isolating the subject matter
from the psychological, sociological or ethical matter
confused in juristic literature." And he adds: "H
intend by this to deny that there were close connect
these other subject-matters. His point was rather tha

must be kept to its own proper method . ". . . In a f
Stone says of a certain problem: "He [Kelsen] regard
sociological jurisprudence" ;144 and in another footno
in admitting in I948 . . . the 'legitimacy' of the 'so
'history of law' . . "..145 Professor Stone quotes m
ological jurisprudence presupposes normative jurispr

the latter has determined what are legal norms sociol
has no definite province.'46 Professor Stone does

quoted sentence. He asserts that "Kelsen's normative
supposes 'sociological jurisprudence' ..147 But Pro

not prove it.
CONCLUSION
This article discusses only the main-not all-stat

Professor Stone presents and criticizes the Pure T
cially not those in which he repeats certain objection

H. L. A. Hart, Professor of Jurisprudence at Oxford
answer to Professor Stone's critique suffices to show t
of the Pure Theory of Law does not justify his judgme
as I present it, is "empty and inapplicable to any leg
142. Id. at 122.
143. Id. at 101.
144. Id. at 111 n.49.
145. Id. at 136 n.121.
146. Id. at 128.

147. Ibid.

Stanford Law Review Stanford Law Review: This Content Downloaded From 14.139.209.68 On Wed, 07 Sep 2016 18:41:24 UTC

Uploaded by

Copyright:

Available Formats

Stanford Law Review Stanford Law Review: This Content Downloaded From 14.139.209.68 On Wed, 07 Sep 2016 18:41:24 UTC

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Stanford Law Review Stanford Law Review: This Content Downloaded From 14.139.209.68 On Wed, 07 Sep 2016 18:41:24 UTC

Uploaded by

Copyright:

Available Formats

Stanford Law Review

Professor Stone and the Pure Theory of Law

Professor Stone and the Pure Theory of Law

of the "sociological" school. Though following in the footsteps of his

Legal System and Lawyers' Reasonings by Julius Stone. This work,

replace the Province. This is an important event in the history of

subject. In particular his chapter on Kelsen and his Pure Theory of

versity of California, Berkeley.

aspects of the law-from Henry Wigmore's neologisms "without acknowledgment." Professor

July I965] REPLY TO PROFESSOR STONE II29

ered as one of the world's truly great scholars

positivism, and that American realism, as repr

Even to those who cannot follow Kelsen into

norms remains one of Kelsen's lasting achiev

achievement that Julius Stone has attacked, an

law). Among these terms is also included the term 'nomostatics

ics.' When, in 1925, I distinguished between Statik and Dynam

that my terminology is adopted from Wigmore's 'neologisms.'"

adversaries. Thus, the great Latin-American scholar, Professo

whom Stone has

chosen as an oath-helper against the Pure Theory

greatest findings and contents of truth." And in

by Stone, "Kelsen is doubtless the greatest and

science of law as an autonomous, strict and cultural study

Kelsenism, in INTERPRETATIONS OF MODERN LEGAL PHILOS

CRONA 148 (1964).

II30 STANFORD LAW REVIEW [Vol. I7: Page II28

study the "basic norm" (Part IV), the process of der

has offered a fitting conclusion to a fascinating essay-f

In a recently published study, Legal System and L

ings,1 Julius Stone, Professor of Jurisprudence and In

Professor Stone maintains that I never offered a defin

work of my Pure Theory of Law, are devoted to the de

he says "a definition of law by Kelsen would proba

lem, that of indicating the specific difference of legal f

has still to be referred (according to Kelsen) not to any

bia University. Walter Perry Johnson Professor of Law, University of Califo

3. REINE RECHTSLEHRE 19-39 (1st ed. 1934).

7. REINE RECHTSLEHRE (2d ed. 1960).

July I965] REPLY TO PROFESSOR STONE 1131

legal norm, Professor Stone says (without quoting a statement of my

That it "seems at points" that I say there is no internal characteristic of

lier writings); for-as I say expressly in my Reine Rechtslehre-the

Professor Stone's statement that I think the distinction between a

9. HAUPTPROBLEME DER STAATSRECHTSLEHRE 205 (1st ed. 1910).

12. REINE RECHTSLEHRE 64 (2d ed. 1960).

1132 STANFORD LAW REVIEW [Vol. I7: Page I 28

quotes, I presented first, as an example of a norm

ward I referred to moral norms whose objective

"Do not lie," directed by a father to his child, based

manded to obey the commands of your father. Thus I do not only-as

Besides, later Professor Stone admits this expressly by referring to the

A. Rechtsnorm and Rechtssatz

In order to avoid the confusion of legal norms prescribing a certain

I now-in my Reine Rechtslehre-admit the confusion. He speaks of

probleme der Staatsrechtslehre and in the first edition of my Reine

klar genug gemacht, da ich den Unterschied zwischen Rechtssatz und

Rechtsnorm noch nicht terminologisch zum Ausdruck gebracht