THE PURE THEORY OF LAW

Hans Kelsen

Introduction, Polycarp Ikuenobe

THE GERMAN LEGAL THEORIST AND philosopher Hans Kelsen provides a positivist
account of law. He does this by employing the method of what is now called
analytical jurisprudence. This method attempts to account for the nature of
law by engaging in the analysis of concepts. He insists that any attempt to
account for the nature of law must start from understanding how the concept
of law is commonly used and what the concept is usually used to denote. The
notion of law usually denotes a social order and a specific social technique
of regulating people’s conduct. The idea or essence of law can better be
understood by seeing how it is different from the related to other kinds of
social order. They are related in the sense that people usually understand that
there are social, moral, and political influences on our understanding of law.
However, law is also different from morality and issues about justice. Kelsen
identifies some features of law: it is positive in the sense that it is created and
annulled. It is a conscious creation to regulate people’s conduct and to make
them behave in a certain desired manner to create a social order. It maintains
social order in a specific space and time: a law exists in a particular country
or designated space and at a particular time. This aim of creating a social
order implies that law is a coercive order, in that it creates obedience on the
part of people by indicating that there are advantages to obeying laws and
disadvantages to not obeying them.
Law is not based solely on force or coercion, but force is necessary as a
backing for law to ensure obedience for those who would resist. Lack of
obedience to law is usually met with force and punishment. Kelsen contrasts
the notion of coercion as an essential element of law with voluntary obedi-
ence: both are motivations for acting in a particular manner, but coercion
involves sanctions. Coercion is necessary for the efficacy of law in terms of
maintaining social order, but efficacy is not what defines positive law. He
distinguishes between efficacy and validity, and argues that validity is what
defines positive law. For Kelsen, validity has to do with the existence of law,
a reference to the idea or fact that a precept has the force of law and a bind-
ing force on both officials and citizens. Validity is an indication that a per-
  THE PURE THEORY OF LAW 

cent is a positive law, which is a way of saying that it has some obedience
and not the coercion per se. He argues that efficacy is a condition of validity,
in that when a law is valid and demands obedience it creates a social order.
The social order indicates that law has efficacy, which is a reference to the
actual obedience by people.
For Kelsen, efficacy is not the reason for the validity of law; rather,
validity is based on the existence of an authoritative norm that gives a bind-
ing force to the law. Validity is a reference to the existence of a binding force
in terms of what is, as opposed to what ought to be. He argues that the dis-
tinction between “is” and “ought” is necessary to understand positive law.
Validity, considered as what is binding, implies a command by an authorita-
tive body or legislator. However, it specifies what ought to be done: the com-
mand indicates a prescription or stipulation based on a norm regarding how a
person with some authority wants others to behave. The stipulation that
gives validity and authority to a law must be understood in terms of proce-
dure of the form “if such and such is done, then such and such is a valid
law.” When such a procedure exists, there is a system of norms or legal
order. Such procedure is understood by Kelsen in terms of a basic norm. The
basic norm of a legal order or system of norms is the fundamental norm
beyond which there is no other norm. It is the source of all norms and it per-
forms the function of being the authority behind all other norms. The basic
norm has the power of being the “first legislator,” which creates other norms
and gives them their binding force; it is the source of validity. The existence
of a basic norm indicates that we have a dynamic system of norms, a system
of delegating authority whereby a basic norm delegates law-making author-
ity to other norms. The notion of positivity, as in positive law, is a dynamic
process of delegating authority. The basic norm answers the questions
regarding how and under what conditions legal power, rights, obligations,
and norms can exist.
The idea of a basic norm is what distinguishes a dynamic system from a
static system. In a dynamic system it is possible for norms to be created indef-
initely because there is a procedure that specifies how this can be done and
how created norms can be given a binding force. In a static system, there is no
specified process of creating norms. Norms are derived from a system by
inferring them from a set of self-evident ideas embedded therein. Positive law
can derive only from a dynamic system of norms. A system of norms based on
religion or other metaphysical entities is static because all norms are inferred
from what such entity or God specified. This is what distinguishes the positive
  THE PURE THEORY OF LAW 

law from moral norms or natural law. Kelsen argues that the difference
between dynamic and static systems of norm may illuminate the debate
between natural law and legal positivism. He criticizes natural law because it
sees a system of norms as static. According to natural law, the validity of a law
derives not from its procedure and source of authority but from a static princi-
ple. Natural law tries to introduce a positive element into a system based on a
static principle, and by so doing, specifies that the validity of positive law is
based on its content and whether such content is derived from or consistent
with the static basic principle. This view confuses the notion of validity as a
basis for obedience with the notion of content or efficacy.
As you read Kelsen, consider and reflect on the following questions:
How does the meaning of law depend on its common usage? What distin-
guishes law as a social order from all other social orders? What are the
essential elements of positive law? What is the role of a basic norm? What is
the difference between static and dynamic systems of norms? What is posi-
tive law a system of dynamic norms and natural law is not?

THE CONCEPT OF LAW

Scientific and Political Definition of Law

A ny attempt to define a concept must take for its starting-point the com-
mon 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 characteris-
tic 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 possi-
ble usage of the word “law.” Perhaps no such characteristic as we are look-
ing 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.

Excerpt from “The Pure Theory of Law,” by Hans Kelsen, reprinted from General Theory of
Law and State, 1961, Russell & Russell.
  THE PURE THEORY OF LAW 

This is not to say that it would be illegitimate to frame a narrower con-

cept 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. . . .
The above-mentioned concept—which actually appears in recent works
on legal philosophy—also shows how a political bias can influence the defi-
nition 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 investiga-
tions, the concept of law has no moral connotation whatsoever. It designates
a specific technique of social organization. The problem of law, as a scien-
tific 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.

THE CRITERION OF LAW (LAW AS A

SPECIFIC SOCIAL TECHNIQUE)
If we confine our investigation to positive law, and if we compare all those
social orders, past and present, that are generally called “law,” we shall find
that they have one characteristic in common which no social orders of
another kind present. This characteristic constitutes a fact of supreme impor-
tance for social life and its scientific study. And this characteristic is the only
criterion by which we may clearly distinguish law from other social phe-
nomena such as morals and religion. What is this criterion?
It is the function of every social order, of every society—because soci-
ety is nothing but a social order—to bring about a certain reciprocal behavior
  THE PURE THEORY OF LAW 

of human beings: to make them refrain from certain acts which, for some
reason, are deemed detrimental to society, and to make them perform others
which, for some reason, are considered useful to society.
According to the manner in which the socially desired behavior is
brought about, various types of social orders can be distinguished. These
types—it is ideal types that are to be presented here—are characterized by
the specific motivation resorted to by the social order to induce individuals
to behave as desired. The motivation may be indirect or direct. The order
may attach certain advantages to its observance and certain disadvantages to
its non-observance, and, hence, make desire for the promised advantage or
fear of the threatened disadvantage a motive for behavior. Behavior con-
forming to the established order is achieved by a sanction provided in the
order itself. The principle of reward and punishment—the principle of retri-
bution—fundamental for social life, consists in associating conduct in accor-
dance with the established order and conduct contrary to the order with a
promised advantage or a threatened disadvantage respectively, as sanctions.
The social order can, however, even without promise of an advantage in
case of obedience, and without threat of a disadvantage in case of disobedi-
ence, i.e. without decreeing sanctions, require conduct that appeals directly to
the individuals as advantageous, so that the mere idea of a norm decreeing this
behavior suffices as a motive for conduct conforming to the norm. This type of
direct motivation in its fully purity is seldom to be met with in social reality.

Law as a Coercive Order

The evil applied to the violator of the order when the sanction is socially
organized consists in a deprivation of possessions—life, health, freedom, or
property. As the possessions are taken from him against his will, this sanc-
tion has the character of a measure of coercion. This does not mean that in
carrying out the sanction physical force must be applied. This is necessary
only if resistance is encountered in applying the sanction possesses adequate
power. A social order that seeks to bring about the desired behavior of indi-
viduals by the enactment of such measures of coercion is called a coercive
order. Such it is because it threatens socially harmful deeds with measures of
coercion, decrees such measures of coercion. As such it presents a contrast to
all other possible social orders—those that provide reward rather than pun-
ishment as sanctions, and especially those that enact no sanctions at all, rely-
ing on the technique of direct motivation. In contrast to the orders that enact
coercive measures as sanctions, the efficacy of the others rests not on coer-
  THE PURE THEORY OF LAW 

cion but on voluntary obedience. Yet this contrast is not so distinct as it

might at first sight appear. This follows from the fact that the technique of
reward, as a technique of indirect motivation, has its place between the tech-
nique of indirect motivation through punishment, as a technique of coercion,
and the technique of direct motivation, the technique of voluntary obedience.
Voluntary obedience is itself a form of motivation, that is, of coercion, and
hence is not freedom, but it is coercion in the psychological sense. If coer-
cive orders are contrasted with those that have no coercive character, that
rest on voluntary obedience, that is possible only in the sense that one pro-
vides measures of coercion as sanctions whereas the other does not. And
these sanctions are only coercive measures in the sense that certain posses-
sions are taken from the individuals in question against their will, if neces-
sary by the employment of physical force.
In this sense, the law is a coercive order.
. . .
The Never-Ending Series of Sanctions
An argument against the doctrine that coercion is an essential element of
law, or that sanctions form a necessary element within the legal structure,
runs as follows: if it is necessary to guarantee the efficacy of a norm pre-
scribing a certain behavior by another norm prescribing a sanction in the
case the former is not obeyed, a never-ending series of sanctions, a regressus
ad infinitum is inevitable. For “in order to secure the efficacy of a rule of the
nth degree, a rule of the n + 1 degree is necessary.”1 Since the legal order can
be composed only by a definite number of rules, the norms prescribing sanc-
tions presupposed norms which prescribe no sanctions. Coercion is not a
necessary but only a possible element of law.
. . .
Finally, one objects to the doctrine that coercion is an essential element
of law by alleging that among the norms of a legal order there are many rules
which provide for no sanctions at all. The norms of the constitution are fre-
quently pointed out as legal norms although they provide for no sanctions.

VALIDITY AND EFFICACY

The element of “coercion” which is essential to law thus consists, not in the
so-called “psychic compulsion,” but in the fact that specific acts of coercion,
  THE PURE THEORY OF LAW 

as sanctions, are provided for in specific cases by the rules which form the
legal order. The element of coercion is relevant only as part of the contents
of the legal norm, only as an act stipulated by this norm, not as a process in
the mind of the individual subject to the norm. The rules which constitute a
system of morality do not have any such import. Whether or not men do
actually behave in a manner to avoid the sanction threatened by the legal
norm, and whether or not the sanction is actually carried out in case its con-
ditions are fulfilled, are issues concerning the efficacy of the law. But it is
not the efficacy, it is the validity of the law which is in question here.
The “Norm.” What is the nature of the validity, as distinguished from
the efficacy of law? The difference may be illustrated by an example: A legal
rule forbids theft, prescribing that every thief must be punished by the judge.
This rule is “valid” for all people, to whom theft is thereby forbidden, the
individuals who have to obey the rule, the “subjects.” The legal rule is
“valid” particularly for those who actually steal and in so doing “violate” the
rule. That is to say, the legal rule is valid even in those cases where it lacks
“efficacy.” It is precisely in those cases that it has to be “applied” by the
judge. The rule in question is valid not only for the subjects but also for the
law-applying organs. But the rule retains its validity, even if the thief should
succeed in escaping, and the judge, therefore, should be unable to punish
him and thus apply the legal rule. Thus, in the particular case, the rule is
valid for the judge even if it is without efficacy, in the sense that the condi-
tions of the sanction prescribed by the rule are fulfilled and yet the judge
finds himself unable to order the sanction. What is now the significance of
the statement that the rule is valid even if, in a concrete case, it lacks effi-
cacy, is not obeyed, or is not applied?
By “validity” we mean the specific existence of norms. To say that a
norm is valid, is to say that we assume its existence or—what amounts to the
same thing—we assume that it has “binding force” for those whose behavior
it regulates. Rules of law, if valid, are norms. They are, to be more precise,
norms stipulating sanctions. But what is a norm?
The “Ought.” . . . The conduct prescribed by the rule of law is “de-
manded” without any human being having to “will” it in a psychological
sense. This is expressed by the statement that one “shall,” one “ought” to
observe the conduct prescribed by the law. A “norm” is a rule expressing the
fact that somebody ought to act in a certain way, without implying that any-
body really “wants” the person to act that way.
  THE PURE THEORY OF LAW 

The statement that an individual “ought to” behave in a certain way

implies neither that some other individual “wills” or “commands” so, nor
that the individual who ought to behave in a certain way actually behaves in
this way. The norm is the expression of the idea that something ought to
occur, especially that an individual ought to behave in a certain way. By the
norm, nothing is said about the actual behavior of the individual concerned.
The statement that an individual “ought to” behave in a certain way means
that this behavior is prescribed by a norm—it may be a moral or a legal norm
or some other norm. The “ought” simply expresses the specific sense in
which human behavior is determined by a norm. All we can do to describe
this sense is to state that it is different from the sense in which we say that an
individual actually behaves in a certain way, that something actually occurs
or exists. A statement to the effect that something ought to occur is a state-
ment about the existence and the contents of a norm, not a statement about
natural reality, i.e. actual events in nature. . . .
In summary: To say that a norm is “valid” for certain individuals is not
to say that a certain individual or certain individuals “want” other individu-
als to behave in a certain way; for the norm is valid also if no such will
exists. To say that a norm is valid for certain individuals is not to say that
individuals actually behave in a certain way; for the norm is valid for these
individuals even if they do not behave in that way. The distinction between
the “ought” and the “is” is fundamental for the description of law.

Efficacy as Conformity of the Behavior to the Norm

. . . Law as valid norm finds its expression in the statement that men ought to
behave in a certain manner, thus in a statement which does not tell us any-
thing about actual events. The efficacy of law, understood in the last-men-
tioned way, consists in the fact that men are led to observe the conduct
required by a norm by their idea of this norm. A statement concerning the
efficacy of law so understood is a statement about actual behavior. To desig-
nate both the valid norm and the idea of the norm, which is a psychological
fact, by the same word “norm” is to commit an equivocation which may give
rise to grave fallacies. However, as I have already pointed out, we are not in
a position to say anything with exactitude about the motivating power which
men’s idea of law may possess. Objectively, we can ascertain only that the
behavior of men conforms or does not conform with the legal norms. The
only connotation attached to the term “efficacy” of law in this study is there-
fore that the actual behavior of men conforms to the legal norms.
  THE PURE THEORY OF LAW 

Efficacy as Condition of Validity

The statement that a norm is valid and the statement that it is efficacious are,
it is true, two different statements. But although validity and efficacy are two
entirely different concepts, there is nevertheless a very important relation-
ship between the two. A norm is considered to be valid only on the condition
that it belongs to a system of norms, to an order which, on the whole, is effi-
cacious. Thus, efficacy is a condition of validity; a condition, not the reason
of validity. A norm is not valid because it is efficacious; it is valid if the order
to which it belongs is, on the whole, efficacious. This relationship between
validity and efficacy is cognizable, however, only from the point of view of a
dynamic theory of law dealing with the problem of the reason of validity and
the concept of the legal order. From the point of view of a static theory, only
the validity of law is in question.

Sphere of Validity of the Norms

Since norms regulate human behavior, and human behavior takes place in
time and space, norms are valid for a certain time and for a certain space. The
validity of a norm may begin at one moment and end at another. The norms of
Czechoslovakian law began to be valid on a certain day of 1918, the norms of
Austrian law ceased to be valid on the day when the Austrian Republic had
been incorporated into the German Reich in 1938. The validity of a norm has
also a relation to space. In order to be valid at all, it must be valid, not only for
a certain time, but also for a certain territory. The norms of French law are
valid only in France, the norms of Mexican law only in Mexico. We may
therefore speak of the temporal and the territorial sphere of validity of a norm.
Occasionally it is asserted that norms can have validity not for the past
but only for the future. That is not so, and the assertion appears to be due to a
failure to distinguish between the validity of a norm and the efficacy of the
idea of a norm. The idea of a norm as a psychic fact can become efficacious
only in the future, in the sense that this idea must temporally precede the
behavior conforming to the norm, since the cause must temporally precede
the effect. But the norm may refer also to past behavior. Past and future are
relative to a certain moment in time. The moment which those who argue that
a norm is valid only for the future have in mind is evidently the moment when
the norm was created. What they mean is that norms cannot refer to events
which had taken place before that moment. But this does not hold if we are
considering the validity of a norm as distinguished from the efficacy of its
idea. Nothing prevents us from applying a norm as a scheme of interpretation,
  THE PURE THEORY OF LAW 

a standard of evaluation, to facts which occurred before the moment when the
norm came into existence. What someone did in the past we may evaluate
according to a norm which assumed validity only after it had been done.

Retroactive Laws And Ignorantia Juris

The moral and political value of retroactive laws may be disputed, but their
possibility cannot be doubted. The constitution of the United States, for
instance, says in Article I, section 9, clause 3: “No . . . ex post facto law shall
be passed.” The term “ex post facto law” is interpreted as penal law with
retroactive force. Retroactive laws ar considered to be objectionable and
undesirable because it hurts our feeling of justice to inflict a sanction, espe-
cially a punishment, upon an individual because of an action or omission of
which this individual could not know that it would entail this sanction. How-
ever, on the other hand, we recognize the principle—a fundamental principle
of all positive legal orders—ignorantia juris neminem excusat, ignorance of
the law excuses no one. The fact that an individual does not know that the
law attaches a sanction to his action or omission is no reason for not inflict-
ing the sanction upon him. Sometimes the principle in question is interpreted
restrictively: ignorance of the law is no excuse if the individual did not know
the law although it was possible to know the law. . . .

THE LEGAL NORM

Legal Norm and Rule of Law in a Descriptive Sense
If “coercion” in the sense here defined is an essential element of law, then the
norms which form a legal order must be norms stipulating a coercive act, i.e.
a sanction. In particular, the general norms must be norms in which a certain
sanction is made dependent upon certain conditions, this dependence being
expressed by the concept of “ought.” This does not mean that the law-making
organs necessarily have to give the norms the form of such hypothetical
“ought” statements. The different elements of a norm may be contained in
very different products of the law-making procedure, and they may be lin-
guistically expressed in very different ways. When the legislator forbids theft,
he may, for instance, first define the concept of theft in a number of sentences
which form an article of a statute, and then stipulate the sanction in another
sentence, which may be part of another article of the same statute or even part
of an entirely different statute. Often the latter sentence does not have the lin-
guistic form of an imperative or an “ought” sentence but the form of a predic-
tion of a future event. The legislator frequently makes use of the future tense,
  THE PURE THEORY OF LAW 

saying that a thief “will be” punished in such and such a way. He then presup-
poses that the question as to who is a thief has been answered somewhere
else, in the same or in some other statute. The phrase “will be punished” does
not imply the prediction of a future event—the legislator is no prophet—but
an “imperative” or a “command,” these terms taken in a figurative sense.
What the norm-creating authority means is that the sanction “ought” to be
executed against the thief, when the conditions of the sanction are fulfilled.
It is the task of the science of law to represent the law of a community,
i.e. the material produced by the legal authority in the law-making proce-
dure, in the form of statements to the effect that “if such and such conditions
are fulfilled, then such and such a sanction shall follow.” 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. It is preferable not to
call these statements norms, but legal rules. The legal norms enacted by the
law creating authorities are prescriptive; the rules of law formulated by the
science of law are descriptive. It is of importance that the term “legal rule”
or “rule of law” be employed here in a descriptive sense.

Rule of Law and Law of Nature

The rule of law, the term used in a descriptive sense, is a hypothetical judg-
ment attaching certain consequences to certain conditions. This is the logical
form of the law of nature, too. Just as the science of law, the science of
nature describes its object in sentences which have the character of hypothet-
ical judgments. And like the rule of law, the law of nature, too, connects two
facts with one another as condition and consequence. The condition is here
the “cause,” the consequence the “effect.” The fundamental form of the law
of nature is the law of causality. The difference between the rule of law and
the law of nature seems to be that the former refers to human beings and
their reactions. Human behavior, however, may also be the subject-matter of
natural laws, insofar as human behavior, too, belongs to nature. The rule of
law and the law of nature differ not so much by the elements they connect as
by the manner of their connection. The law of nature establishes that if A is,
B is (or will be). The rule of law says: If A is, B ought to be. The rule of law
is a norm (in the descriptive sense of that term). The meaning of the connec-
tion established by the law of nature between two elements is the “is,”
whereas the meaning of the connection between two elements established by
the rule of law is the “ought.” The principle according to which natural sci-
ence of law describes its object is normativity.
  THE PURE THEORY OF LAW 

THE UNITY OF A NORMATIVE ORDER

The Reason of Validity: The Basic Norm
The legal order is a system of norms. The question then arises: What is it that
makes a system out of a multitude of norms? When does a norm belong to a
certain system of norms, an order? This question is in close connection with
the question as to the reason of validity of a norm.
In order to answer this question, we must first clarify the grounds on
which we assign validity to a norm. When we assume the truth of a statement
about reality, it is because the statement corresponds to reality, because our
experience confirms it. The statement “A physical body expands when
heated” is true, because we have repeatedly and without exception observed
that physical bodies expand when they are heated. A norm is not a statement
about reality and is therefore incapable of being “true” or “false,” in the
sense determined above. A norm is either valid or non-valid. Of the two
statements: “You shall assist a fellowman in need,” and “You shall lie when-
ever you find it useful,” only the first, not the second, is considered to
express a valid norm. What is the reason?
The reason for the validity of a norm is not, like the test of the truth of
an “is” statement, its conformity to reality. As we have already stated, a norm
is not valid because it is efficacious. The question why something ought to
occur can never be answered by an assertion to the effect that something
occurs, but only by an assertion that something ought to occur. In the lan-
guage of daily life, it is true, we frequently justify a norm by referring to a
fact. We say, for instance: “You shall not kill because God has forbidden it in
one of the Ten Commandments”; or a mother says to her child: “You ought
to go to school because your father has ordered it.” However, in these state-
ments the fact that God has issued a command or the fact that the father has
ordered the child to do something is only apparently the reason for the valid-
ity of the norms in question. The true reason is norms tacitly presupposed
because taken for granted. The reason for the validity of the norm, You shall
not kill, is the general norm, You shall obey the commands of God. The rea-
son for the validity of the norm, You ought to go to school, is the general
norm, Children ought to obey their father. If these norms are not presup-
posed, the references to the facts concerned are not answers to the questions
why we shall not kill, why the child ought to go to school. The fact that
somebody commands something is, in itself, no reason for the statement that
one ought to behave in conformity with the command, no reason for consid-
  THE PURE THEORY OF LAW 

ering the command as a valid norm, no reason for the validity of the norm
the contents of which corresponds to the command. The reason for the valid-
ity of a norm is always a norm, not a fact. The quest for the reason of validity
of a norm leads back, not to reality, but to another norm from which the first
norm is derivable in a sense that will be investigated later. . . .
A norm the validity of which cannot be derived from a superior norm
we call a “basic” norm. All norms whose validity may be traced back to one
and the same basic norm form a system of norms, or an order. This basic
norm constitutes, as a common source, the bond between all the different
norms of which an order consists. That a norm belongs to a certain system of
norms, to a certain normative order, can be tested only by ascertaining that it
derives its validity from the basic norm constituting the order. Whereas an
“is” statement is true because it agrees with the reality of sensuous experi-
ence, an “ought” statement is a valid norm only if it belongs to such a valid
system of norms, if it can be derived from a basic norm presupposed as
valid. The ground of truth of an “is” statement is its conformity to the reality
of our experience; the reason for the validity of a norm is a presuppositions,
a norm presupposed to be an ultimately valid, that is, a basic norm. The quest
for the reason of validity of a norm is not—like the quest for the cause of an
effect—a regressus ad infinitum; it is terminated by a highest norm which is
the last reason of validity within the normative system, whereas a last or first
cause has no place within a system of natural reality.

The Static System of Norms

According to the nature of the basic norm, we may distinguish between two
different types of orders or normative systems: static and dynamic systems.
Within an order of the first kind of norms are “valid” and that means, we
assume that the individuals whose behavior is regulated by the norms
“ought” to behave as the norms prescribe, by virtue of their contents: Their
contents has an immediately evident quality that guarantees their validity, or,
in other terms: the norms are valid because of their inherent appeal. This
quality the norms have because they are derivable from a specific basic norm
as the particular is derivable from the general. The binding force of the basic
norm is itself self-evident, or at least presumed to be so. Such norms as “You
must not lie,” “You must not deceive,” “You shall keep your promise,” fol-
low from a general norm prescribing truthfulness. From the norm “You shall
love your neighbor” one may deduce such norms as “You must not hurt your
neighbor,” “You shall help him in need,” and so on. If one asks why one has
  THE PURE THEORY OF LAW 

to love one’s neighbor, perhaps the answer will be found in some still more
general norm, let us say the postulate that one has to live “in harmony with
the universe.” It that is the most general norm of whose validity we are con-
vinced, we will consider it as the ultimate norm. Its obligatory nature may
appear so obvious that one does not feel any need to ask for the reason of its
validity. Perhaps one may also succeed in deducing the principle of truthful-
ness and its consequences from this “harmony” postulate. One would then
have reached a norm on which a whole system of morality could be based.
However, we are not interested here in the question of what specific norm
lies at the basis of such and such a system of morality. It is essential only that
the various norms of any such system are implicated by the basic norm as the
particular is implied by the general, and that, therefore, all the particular
norms of such a system are obtainable by means of an intellectual operation,
viz., by the inference from the general to the particular. Such a system is of a
static nature.
The Dynamic System of Norms The derivation of a particular norm
may, however, be carried out also in another way. A child, asking why it
must not lie, might be given the answer that its father has forbidden it to lie.
If the child should further ask why it has to obey its father, the reply would
perhaps be that God has commanded that it obey its parents. Should the child
put the question why one has to obey the commands of God, the only answer
would be that this is a norm beyond which one cannot look for a more ulti-
mate norm. That norm is the basic norm providing the foundation for a sys-
tem of dynamic character. Its various norms cannot be obtained from the
basic norm by any intellectual operation. The basic norm merely establishes
a certain authority, which may well in turn vest norm-creating power in some
other authorities. The norms of a dynamic system have to be created through
acts of will by those individuals who have been authorized to create norms
by some higher norm. This authorization is a delegation. Norm creating
power is delegated from one authority to another authority; the former is the
higher, the latter the lower authority. The basic norm of a dynamic system is
the fundamental rule according to which the norms of the system are to be
created. A norm forms part of a dynamic system if it has been created in a
way that is—in the last analysis—determined by the basic norm. A norm
thus belongs to the religious system just given by way of example if it is cre-
ated by God or originates in an authority having its power from God, “dele-
gated” by God.
  THE PURE THEORY OF LAW 

THE LAW AS A DYNAMIC SYSTEM OF NORMS

The Positivity Of Law
The system of norms we call a legal order is a system of the dynamic kind.
Legal norms are not valid because they themselves or the basic norm have a
content the binding force of which is self-evident. They are not valid because
of their inherent appeal. Legal norms may have any kind of content. There is
no kind of human behavior that, because of its nature, could not be made into
a legal duty corresponding to a legal right. The validity of a legal norm can-
not be questioned on the ground that its contents are incompatible with some
moral or political value. A norm is a valid legal norm by virtue of the fact
that it has been created according to a definite rule and by virtue thereof
only. The basic norm of a legal order is the postulated ultimate rule accord-
ing to which the norms of this order are established and annulled, receive
and lose their validity. . . .
Law is always positive law, and its positivity lies in the fact that it is cre-
ated and annulled by acts of human beings, thus being independent of moral-
ity and similar norm systems. This constitutes the difference between
positive law and natural law, which, like morality, is deduced from a presum-
ably self-evident basic norm which is considered to be the expression of the
“will of nature” or of “pure reason.” The basic norm of a positive legal order
is nothing but the fundamental rule according to which the various norms of
the order are to be created. It qualifies a certain event as the initial event in
the creation of the various legal norms. It is the starting point of a norm-cre-
ating process and, thus, has an entirely dynamic character. The particular
norms of the legal order cannot be logically deduced from this basic norm,
as can the norm “Help your neighbor when he needs your help” from the
norm “Love your neighbor.” They are to be created by a special act of will,
not concluded from a premise by an intellectual operation.

THE BASIC NORM OF A LEGAL ORDER

The Basic Norm and the Constitution
The derivation of the norms of a legal order from the basic norm of that
order is performed by showing that the particular norms have been created in
accordance with the basic norm. To the question why a certain act of coer-
cion—e.g., the fact that one individual deprives another individual of his
freedom by putting him in jail—is a legal act, the answer is: because it has
been prescribed by an individual norm, a judicial decision. To the question
  THE PURE THEORY OF LAW 

why this individual norm is valid as part of a definite legal order, the answer
is: because it has been created in conformity with a criminal statute. This
statute, finally, receives its validity from the constitution, since it has been
established by the competent organ in the way the constitution prescribes.
If we ask why the constitution is valid, perhaps we come upon an older
constitution. Ultimately we reach some constitution that is the first historically
and that was laid down by an individual usurper or by some kind of assembly.
The validity of this first constitution is the last presupposition, the final postu-
late, upon which the validity of all the norms of our legal order depends. It is
postulated that one ought to behave as the individual, or the individuals, who
laid down the first constitution have ordained. This is the basic norm of the
legal order under consideration. The document which embodies the first con-
stitution is a real constitution, a binding norm, only on the condition that the
basic norm is presupposed to be valid. Only upon this presupposition are the
declarations of those to whom the constitution confers norm-creating power
binding norms. It is this presupposition that enables us to distinguish between
individuals who are legal authorities and other individuals whom we do not
regard as such, between acts of human beings which create legal norms and
acts which have no such effect. All these legal norms belong to one and the
same legal order because their validity can be traced back—directly or indi-
rectly—to the first constitution. That the first constitution is a binding legal
norm is presupposed, and the formulation of the presupposition is the basic
norm of this legal order. The basic norm of a religious norm system says that
one ought to behave as God and the authorities instituted by Him command.
Similarly, the basic norm of a legal order prescribes that one ought to behave
as the “fathers” of the constitution and the individuals—directly or indi-
rectly—authorized (delegated) by the constitution command. Expressed in the
form of a legal norm: coercive acts ought to be carried out only under the con-
ditions and in the way determined by the “fathers” of the constitution or the
organs delegated by them. This is, schematically formulated, the basic norm of
the legal order of a single State, the basic norm of a national legal order. It is to
the national legal order that we have here limited our attention. Later, we shall
consider what bearing the assumption of an international law has upon the
question of the basic norm of national law.

The Specific Function of the Basic Norm

That a norm of the kind just mentioned is the basic norm of the national legal
order does not imply that it is impossible to go beyond that norm. Certainly
  THE PURE THEORY OF LAW 

one may ask why one has to respect the first constitution as a binding norm.
The answer might be that the fathers of the first constitution were empow-
ered by God. The characteristic of so-called legal positivism is, however,
that it dispenses with any such religious justification of the legal order. The
ultimate hypothesis of positivism is the norm authorizing the historically
first legislator. The whole function of this basic norm is to confer law-creat-
ing power on the act of the first legislator and on all the other acts based on
the first act. To interpret these acts of human beings as legal acts and their
products as binding norms, and that means to interpret the empirical material
which presents itself as law as such, is possible only on the condition that the
basic norm is presupposed as a valid norm. The basic norm is only the neces-
sary presupposition of any positivistic interpretation of the legal material.
The basic norm is not created in a legal procedure by a law-creating
organ. It is not—as a positive legal norm is—valid because it is created in a
certain way by a legal act, but it is valid because it is presupposed to be valid;
and it is presupposed to be valid because without this presupposition no human
act could be interpreted as a legal, especially as a norm-creating, act. . . .
The basic norm is the answer to the question: how—and that means
under what condition—are all these juristic statements concerning legal
norms, legal duties, legal rights, and so one, possible?

Change of the Basic Norm

It is just the phenomenon of revolution which clearly shows the significance
of the basic norm. Suppose that a group of individuals attempt to seize power
by force, in order to remove the legitimate government in a hitherto monar-
chic State, and to introduce a republican form of government. If they succeed,
if the old order ceases, and the new order begins to be efficacious, because the
individuals whose behavior the new order regulates actually behave, by and
large, in conformity with the new order, then this order is considered as a
valid order. It is now according to this new order that the actual behavior of
individuals is interpreted as legal or illegal. But this means that a new basic
norm is presupposed. It is no longer the norm according to which the old
monarchical constitution is valid, but a norm according to which the new
republican constitution is valid, a norm endowing the revolutionary govern-
ment with legal authority. If the revolutionaries fail, if the order they have
tried to establish remains inefficacious, then, on the other hand, their under-
taking is interpreted, not as a legal, a law-creating act, as the establishment of
  THE PURE THEORY OF LAW 

a constitution, but as an illegal act, as the crime of treason, and this according
to the monarchic constitution and its specific basic norm.

The Principle of Effectiveness

If we attempt to make explicit the presupposition on which these juristic
considerations rest, we find that the norms of the old order are regarded as
devoid of validity because the old constitution and, therefore, the legal
norms based on this constitution, the old legal order as a whole, has lost its
efficacy; because the actual behavior of men does no longer conform to this
old legal order. Every single norm loses its validity when the total legal order
to which it belongs loses its efficacy as a whole. The efficacy of the entire
legal order is a necessary condition for the validity of every single norm of
the order. A conditio sine qua non, but not a conditio per quam. The efficacy
of the total legal order is a condition, not the reason for the validity of its
constituent norms. These norms are valid not because the total order is effi-
cacious, but because they are created in a constitutional way. They are valid,
however, only on the condition that the total order is efficacious; they cease
to be valid, not only when they are annulled in a constitutional way, but also
when the total order ceases to be efficacious. It cannot be maintained that,
legally, men have to behave in conformity with a certain norm, if the total
legal order, of which that norm is an integral part, has lost its efficacy. The
principle of legitimacy is restricted by the principle of effectiveness.

Desuetudo
This must not be understood to mean that a single legal norm loses its valid-
ity, if that norm itself and only that norm is rendered ineffective. Within a
legal order which as a whole is efficacious there may occur isolated norms
which are valid and which yet are not efficacious, that is, are not obeyed and
not applied even when the conditions which they themselves lay down for
their application are fulfilled. But even in this case efficacy has some rele-
vance to validity. If the norm remains permanently inefficacious, the norm is
deprived of its validity by “desuetudo.”
The relation between validity and efficacy thus appears to be the follow-
ing: A norm is a valid legal norm if (a) it has been created in a way provided
for by the legal order to which it belongs, and (b) if it has not been annulled
either in a way provided for by that legal order or by way of desuetudo or by
the fact that the legal order as a whole has lost its efficacy.
. . .
  THE PURE THEORY OF LAW 

THE STATIC PRINCIPLE OF NATURAL LAW AND THE

DYNAMIC PRINCIPLE OF POSITIVE LAW*
The essential relation of unity which prevails among the norms of one
system with regard to their basic norm may be of different types. Static and
dynamic systems may be distinguished by the method of “derivation” pre-
vailing in them. The norms of an order may be directly or indirectly
“derived” from its basic norm and thus obtain their validity. In the former
case, the basic norm unfolds itself into norms of varying content, just as a
general concept issues special concepts which are subsumed under it. The
basic norm of truth or truthfulness yields the norms: “you shall not defraud,”
“you shall keep your promise,” etc.; the basic norm of love: “you shall not
injure anyone,” “you shall help the needy,” etc. From these particular norms
more special ones follow, for instance: that the merchant must not conceal
defects of his goods which are known to him, that the buyer shall pay the
promised purchase price at the greed time, that one must not injure anyone’s
reputation or inflict physical injury on anyone, etc. All these norms follow
from the basic norm without requiring a special act of norm-making, an act
of human will. They are all contained in the basic norm from the outset and
are derivable from it by a mere intellectual operation. A dynamic system is
different. Its basic norm merely empowers a specific human will to create
norms. “Obey your parents” is such a basic norm. No mere intellectual oper-
ation can derive a single special norm from it. A parental order with a spe-
cific content is needed (for instance: “go to school”), that is, a specific act of
norm-creation or law-making. This particular norm does not have “validity”
simply because its content is consistent with the basic norm, as a special
thing is related to a general one, but only because the act of its creation is in
keeping with the rule enunciated by the basic norm, because it was made as
the basic norm prescribed. The authority which has received its power from
the basic norm can, in turn, delegate its jurisdiction either for the whole or
for a part of its sphere. Thus parents may delegate a teacher for the education
of their children, and this delegation may continue further down the line. The
unity of the dynamic system is the unity of a system of delegation.
It follows that natural law ideally tends to be a static system of norms,
even though the question remains, whether that is possible in view of man’s
inadequate qualities of will and intellect. It is also evident from the preced-

*[This section of Kelsen’s Die Philosophichen Grundlagen der Naturrechtslehre und des Recht-
spositivismus, 1929, was translated by W. H. Kraus.]
  THE PURE THEORY OF LAW 

ing discussion that positive law, whose basic norm consists in the delegation
of a law-making authority, constitutes a dynamic system. “Positivity” actu-
ally consists in this dynamic principle. The whole contrast between natural
and positive law may, in a certain sense, be presented as the contrast between
a static and a dynamic system of norms. To the extent that natural law theory
ceases to develop its natural order according to a static principle and substi-
tutes a dynamic one, that is, as it is impelled to introduce the principle of del-
egation because it has to realize itself in application to actual human
conditions, it imperceptibly changes into positive law.
The static principle, on the other hand, in turn gains access to the system
of positive law. This is not because the authority constituted by the basic
norm cannot itself create other than pure norms of delegation. The constitu-
tional legislator does not determine merely organs for legislation, but also a
legislative procedure; and, at times, his norms, that is the constitution, deter-
mine in the so-called fundamental rights and bills of liberty the content of
the laws, when they prescribe a minimum of what they should and should
not contain. . . .
Above all, even the validity of the basic norm of a given positive legal
order does not rest on the dynamic principle. This principle makes its first
appearance in and through the basic norm. The basic norm is not itself a
made, but a hypothetical, presupposed norm; it is not positive law, but only
its condition. Even this clearly shows the limitation of the idea of legal “pos-
itivity.” The basic norm is not valid because it has been created in a certain
way, but its validity is assumed by virtue of its content. It is valid, then, like
a norm of natural law, apart from its merely hypothetical validity. The idea of
a pure positive law, like that of natural law, has its limitation.

ENDNOTE
1 N. S. Timasheff, An Introduction To The Sociology Of Law (1939) p. 264, according
to L. Petrazhitsky, Theory Of Law And State (in Russian: 2d ed., 1909),
pp. 273–285.