The University of Iowa College of Law

University of Iowa Legal Studies Research Paper

Number 05-15

April, 2005

Stateless Law: Kelsens Conception and its Limits*

Alexander Somek

College of Law, University of Iowa

An index to the working papers in the University of Iowa Legal Studies Research Paper Series is located at:

www.law.uiowa.edu/faculty/workingpapers.php

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=708304

* As always, I should like to thank Elisabeth Holzleithner and my wife Sabine for the critical reading

of an earlier version of this article. I also benefited immensely from suggestions made by Stanley L. Paulson. The article was written, originally, in the mother tongue of legal positivism. I owe a great debt of gratitude to my research assistant James Provenzale for his invaluable assistance in rewriting the text in English.

Alexander Somek

Stateless Law: Kelsens Conception and its Limits*

Abstract: Hans Kelsens claim that the state and the law are identical is sur-

rounded by a somewhat mystical air. Yet, the identity thesis loses much of its

mystical aura when it is seen as an attempt to recast the state, qua social fact, in

deontological terms. The state is seen as a condition necessary to account for the

validity of legal acts. Indeed, the meaning of the state is reduced to the function

performed by a conception of order in the reproduction of a system of norms. No

further social fact would attest to its existence. Accordingly, all law is essentially,

and principally, law sans state.

1. The Iconoclast

What was Hans Kelsen aiming at in reducing the state to the legal system and

proclaiming, boastfully, the identity of law and state?1

In noteworthy analysis of Smend, Kelsen summarises, not without pride, what

he believed to be the yield of his doctrine. The normative state theory of the Vi-

ennese School, he claims, sent shockwaves through the prevailing constitutional

theory of the time. Kelsen claims that the Viennese school has proven that

their [i.e. the prevailing] concept of state is nothing but the methodically imper-

missible substantiation of unity, a hypostatisation, in other words; and that there

does not and cannot exist, as the state, a collective subject qua bearer of power

that is different from human subjects, external to and beyond them as a kind of

space-filling, soul-body substance.2

2

He claims that the Viennese School rescued legal theory from the spell of a fatally

misleading image, an image that was subscribed to wholeheartedly by the then es-

tablished public law doctrine. According to Kelsen, the reference to the state

had oversimplified the complex fact that every legal system, in order to exist, pre-

supposes its own unity. Without such unity the validity of norms would remain in-

explicable. Human reasoning, Kelsen grants, is notoriously susceptible to mistak-

ing a simplification for the heart of a matter. So it is that the image of the legal

system that was created under the name of the state had prevailed with all its

disastrous implications. Constitutional theory succumbed to the temptation to

visualise the legal system with the aid of the useful picture (anschauliches Bild) of

the person whose major quality is the power of volition.3 This image of a super-

human being, of a Makroanthropos4 is, however, more than merely misleading. It is

ideologically dangerous, too, for it provides those who are at odds with the rule of

law with ammunition.5

Even if Kelsen was not wrong in looking back to 1930 with a sense of pride at

the intellectual fruits of his doctrine, one should not be mislead into believing that

his iconoclastic project was all but certain to succeed. Kelsen never gained broad

acceptance in German legal theory.6 During the Weimar Period, he was, accord-

ing to Koch, the most despised public law teacher of his era.7 Afterwards, he was

more or less forgotten in Germany.8 Kelsenians are still rare today.9 This does not

reflect poorly on Kelsen, nor does not it speak against Germany. But it may have

3

something to do with the sobering potential inherent in a theory that would make

one abstain from mobilising value-talk for the purpose of creating a good state.10

There is, however, more behind Kelsens iconoclastic project than merely one

theme or merely one intention. Without a doubt, the theoretical destruction11 of

the state is the pivotal point. This destruction, however, flows from several inter-

related motives, one building on the other.

In what follows I would like to begin by examining these motives one by one. I

begin with Kelsens epistemological intention. I do not find it, I have to grant, par-

ticularly impressive; more engaging is his attempt to accomplish what might be

called the deontologisation and the demystification of the state. The reconstruc-

tion of Kelsens deontologisation of the state will reveal that his identity theory is

asymmetrical. His contention that the state is a creature of the law promises to

formulate an insight. The mirror-image contention, i.e. that all law is in some

sense statal, is not nearly as intellectually intriguing. It is this asymmetry which

explains the title of this article. Kelsens identity theory amounts, at bottom, to

the view all law is, essentially, stateless law.

In addition, I shall attempt to define the caveats under which Kelsens icono-

clastic project may indeed be defensible. I believe that Kelsen shrank back from

endorsing a radical deontologisation of the state. Something remains in Kelsens

theory of the dual thing that he rejected, namely, the legal system qua system of

norms. The remaining reification, however, can be avoidedand in the attempt

4

to do so, a constitutional theory after positivism is distinct from its positivist pre-

cursor. The final analysis of this paper is dedicated to this challenge. It can be un-

derstood as an effort to take up the motives of Kelsens theory and to remain

faithful to its spirit, even when partially turning against it.

2. Knowing as Producing

At a most elementary level, Kelsen pursues an epistemological objective. From

this perspective, it is essential to realise that the state is not a thing. In particular,

it is not a thing that lends itself to description from both a sociological and a legal

angle. On the contrary, the method of cognition produces different objects. The

state, as seen from a sociological angle, cannot therefore coincide with the state as

seen from a legal point of view.12

Kelsen is convinced that this is an important insight. He never grows tired of

pointing out that the state cannot serve as the one unchanging object of differ-

ent sciences: The view that the legal and sociological-psychological approach en-

compasses only two sides of the same thing called state violates the fundamental

epistemological principle that two different, incompatible processes of cognition

must produce two equally different and incompatible things.13

The method is taken to determine the methodically elaborated subject. This

commonplace of neo-Kantian philosophy14 bears the brunt of the argument

against the prevailing dualist theory of the state, of which Georg Jellinek is said

to be the main proponent.15 According to this theory, the state exists as an system

5

of norms on the one hand and as a real association of people on the other. The

existence of the real association is a necessary condition for the existence of the

system of norms. For only in the context of a real association of people can power

be generated that makes possible, and accounts for, the existence and validity of

law.16

According to Jellinek, the state as a real association is made up of two distinc-

tive features. First, the state presupposes relations of dominion.17 Without power

there would be no ability to rule. For an organisation to be worthy of the high ap-

pellation of the state it even has to have the power to assert its will against every

countervailing or resisting will. It has to have, indeed, the greatest power. Second,

the state manifests itself in the unity of human beings connected by common pur-

poses.18 Jellinek thus summarises the structure of the state as a unitary associa-

tion of settled people equipped with an originary power to rule.19

Kelsen is particularly impatient with Jellineks claims for reasons that we shall

examine below. In his opinion, the originary power is a mere legal fiction and

the talk about a unitary association is nothing short of a confused characterisation

of the legal existence of a corporate body.20 Accordingly, there can remain only

one dimension of the state, which is the legal system.

This claim, however, already exceeds the thrust of Kelsens epistemological ob-

servations.

6

3. Deontologisation

In the context of the critical examination of Jellineks social concept of the state,

a further concern of Kelsens comes to the fore. It springs, indeed, from a radicali-

sation of his epistemological critique that is transposed to the ontic sphere and ap-

plied to the state as an object. This transfer results in something that can be called

the deontologisation of the state. By this, I mean Kelsens portrayal of the state as

validity of a legal system that proves to be a scheme of interpretation for a

multiplicity of human acts, whose unity is to be found only in the unity of the sys-

tem of norms that invests these acts with the meaning of acts of state.21 As a so-

cial phenomenon, the state does not manifest itself in a special set of facts, but

rather exists only as a reflection of the deontic modalities of law.

Kelsen arrives at the deontologisation of the state through his efforts to portray

the sociological descriptions of the state as lacking in substance. This lack of sub-

stance concerns their claim to have a referent, the state, which is different from

the normativity inherent in the legal system.

This aspect of the iconoclastic project raises several questions.

To begin with, it is not clear whether Kelsens critical observations are in-

tended to be empirical or conceptual claims.22 Where the former is concerned, he

considers all talk of the state qua real association or supra-individual being to

be devoid of empirical content.23 Associations of people are not marked by their

own psychological experience, nor do they have a natural capacity to act. They

7

are not separate beings. Only people exist. Associations are not like people. If at

all, the empirical reality of associations could only be fathomed by taking the psy-

chological experiences and intentions of individuals into account. There would be

no other material to work with. Associations could thus manifest themselves only

in the connection between the psychological experiences of those who allegedly

belong to the same association. Accordingly, understood as a relational structure

mediating individual experiences,24 the state could be proven to exist if one were

to unearth the causal nexus connecting individual experiences and intentions to

act. In the face of the variety of individual experiences and intentions, Kelsen

considers this to be a futile task.25 He believes that the real effect (or interaction)

in relation to individual experiences, in which the state could manifest itself, is ei-

ther simply counterfactually posited by a sociological state theory or, when it ac-

tually obtains in episodic acts, oversteps the boundaries of the state.26

The method by which Kelsen arrives at this result is that of an immanent cri-

tique.27 He submits attempts to determine a social side of the state independently

of law to scrutiny with regard to their actual or potential empirical content. In this

manner, Kelsen works his way toward a theory that would have remained unat-

tainable on the basis of his epistemological premise alone. According to the latter,

the method determines the object. This would not pre-empt the viability of a non-

normative constitutional doctrine.28 Where possible such a doctrine could not be

reconciled with Kelsens normativistic approach. Therefore, Kelsen introduces the

8

immanent critique of the sociological constitutional doctrine in addition to the

epistemological critique. It is meant to foreclose the path to a sociological account

of statehood. There cannot be a sociological theory of the state. At this point the

thrust of Kelsens argument has shifted to the conceptual level. He claims that for

the concept of the state to have meaning it cannot have a sociological dimension.

In the final analysis, this negative result finds a positive expression in identity the-

ory. The state canexclusively, that isonly be described as a legal system

(Rechtsordnung)29. The state is merely a normative system, no matter what the

method of description might be.30 Engaging the subject matter gives rise to the re-

alisation that any other attempt to account for the state is marred either with con-

tradictions or tangled up in self-deception31.

4. The Immanent Critique

The core premise of the immanent critique is that if there existed, independent of

the law, something like the state as a real association of people, it would have to

be susceptible also to a description which is independent of legal norms.32 On this

basis, Kelsen tries to establish that proponents of this theory wantonly have to

confess to a double impossibility. First, it is impossible to identify acts of the state

without presuming the validity of legal norms. Second, the unity that is attributed

to statehood cannot be understood without establishing a link to a normative

system that is presupposed to be valid.33 Furthermore, Kelsen also wishes to clar-

ify why this double impossibility remains undetected by the champions of socio-

9

logical state theory. His explanation is that what they would have understood as

social facts are (1) dim reflections of normative presuppositions, (2) twisted repre-

sentations of normative meaning or (3) simply idealisations.

(1) Kelsen claims that any description of state power needs to draw on implicit

normative presuppositions. Relationships of dominion, which Kelsen characterises

as instances in which an expression of will by one person becomes the motive of

willing for the other,34 cannot be characterised as expressive of state rule without

conceiving of them as legal acts: A ruling power (Herrschermacht) that is char-

acterised as the state in a social sense can possibly exercise brute force, but it can-

not legally obligate or authorise. It can do thisas a legal personif it is nothing

other than a personified expression for the unity of the legal system.35 Kelsen is

not impressed with appeals to the actual power with which authority is ostensibly

exercised. It would not have the air of statehood were it not for the normativity of

law: All of the external displays in which one traditionally perceives the power of

the statethe prisons and fortresses, the gallows and machine gunsall of these

are in and of themselves lifeless objects. They become tools of state power only in

so far as human beings make use of them in accordance with a certain system,

only in so far as these human beings are governed by the notion of this system, by

the belief that they ought to act in conformity with this system.36

No state authority without a system; but would not one expect this system to

be authorised by a real collective will? According to Kelsen, Jellinek believes that

10

the state is the unity of relationships between and among individual wills.37 But

given the diversity of human endeavours, the unity of wills that purportedly con-

stitutes the state cannot be tantamount to the mere empirical confluence of indi-

vidual wills. Rather, such unity is a construct created whenever actual acts of will

are recast against the backdrop of a systematic continuum of norm-creation.38 If it

were not for the focus provided by the legal point of view, all unity would disap-

pear.

But is there not something like a sense of belonging? Does this sense not ex-

plain the existence of a collective will that motivates people to observe the restric-

tions established by the legal system? Thus understood, the feeling of belonging to

a society would provide the basis upon which the state as a collective phenome-

non is built. Appeals to belonging, however, are subject to a subtle empirical cri-

tique by Kelsen. A feeling of unity that would count as the distinguishing mark of

citizenship can in fact be found empirically, but it is neither territorially nor per-

sonally limited to citizens.39 The spontaneous sympathy that is felt with victims of

a natural catastrophe or a terrorist attack exceeds the limits drawn by national

borders. A feeling of belonging need not even be genuinely national, but can also

be mediated through social class.40 Feelings of sympathy or solidarity prove to be

too fluctuating and the intention to act on these is too incalculable to see the

unity of the real association underlying the state established on this basis. Kelsen

11

concludes that unity in the relationships of will can come about only if it is recast

as the unity of a system of norms.41

(2) Furthermore, Kelsen hints at how sociologically intended descriptions of

the state can be unmasked as merely distorted expressions of the normative.

Jellineks proposition that the state has irresistible power is, of course, empiri-

cally fictitious. It is explicable only as a skewed reformulation of the normative

force of the ought that finds its articulation in legal rules.42 Particularly striking

are Kelsens reflections on the originality of state power. Nothing like this exists in

the real world of causal events. The glorification of the originality (i.e. non-

derivative nature) of the state power can therefore be explained only as a vestige

of the relative sovereignty attributed to states according to public international

law. It reflects, thus, the legally non-derivative power of states.43

(3) Finally, idealisation can be seen as lurking underneath alleged descriptions.

Descriptions become normatively charged owing to their interference. Kelsen ob-

serves this as regards the attempt to render visible the real unity of the state on

the level of individual consciousness.44 Conceivably, it should be possible to trace

this unity back to the shared self-perception of citizens as members of one and the

same polity. It also would be manifest in a real awareness of unity, in particular,

whenever one encounters an affective affirmation (support) of the state organi-

sation. According to Kelsen, both observations that of the presence of unity in

individual consciousness and that of attitudes of support - can be sustained only

12

on the basis of idealisations. With reference to Smends reflections on how even

sleeping humans, the mentally impaired or children need to be included into the

set of those supposedly supporting the state and how, contrary to the facts, an atti-

tude of affirmative support is attributed to subjects, Kelsen debunks as bad sociol-

ogy the normative transfiguration of human experience.45 That normative inter-

pretations intervene where social facts are invoked is corroborated by Smends

claim that destruction of the affirmative community bond is dependent on relin-

quishing citizenship, a fact that is relevant on a purely legal scale.46 So-called so-

cial facts are in this way either constituted against the backdrop of norms or

identified with legal acts.47

5. The Confusing Conclusion

From the immanent critique the conclusion does not follow that the state does

not exist. The state does exist. It just does not exist as a natural fact.48 It does not

exist as unity to be encountered in the world of natural, psychological, causally

determined objects independently of a system of norms the validity of which needs

to be presupposed.49 It exists, however, as the epitome of rules, on whose basis in-

stitutional facts come into being. Such facts can be understood as the meaning of

acts or conditions that emerge owing to the presence of constitutive rules.50 Kel-

sen speaks of the state, thus understood, as a ideal entity (geistiges Gebilde)51,

by which he means, in the case of the state, the law qua system of norms. More

precisely, he means that the state is exactly that which is constitutive of the sys-

13

tematic nature of law. Using Kantian parlance, the state provides the focus imag-

ininarius52 in the perspective of which the legal system reveals itself as a consis-

tent context for the justification of norms (a Begrndungszusammenhang).53

I shall return further below (sections 6 and 13) to the fact that Kelsen is prone

to error at this point and tends again and again to mischaracterize his own insight.

At this point, however, the question must be asked: How was Kelsen able to ar-

rive at this remarkable assertion in the first place? One cannot say that it is actu-

ally surrounded by a strong aura of self-evidence.

First of all, for Kelsen the fact that the sociological concept of the state is de-

void of any causally mediated empirical content indicates that the designation

state might refer to something that is essentially different from causal reality. At

this point, his criticism shifts to the conceptual level. With regard to its meaning,

that is, the experience communicated when people speak about the state is differ-

ent from the experience of causal reality. This different experience originates from

interpretation.54 Something is seen in light of something else. Conduct counts as a

crime, a piece of writing as a document, a raising of the hand as an agreement.

On a conceptual level, the existence of the state presupposes the use of an in-

terpretative scheme. Without it, the state would not be a social phenomenon. Fur-

thermore, acts of interpretation are embedded in a normative context of justifica-

tion. This can be observed also when single interpretations are not directly geared

toward the justification of a legal act. The President of the Republic is elected.

14

This is not a norm. But this matter must be known as a binding institutional fact

in order to assess the validity of norms (for example, when the propriety of Presi-

dents participation in the legislative process appears to be doubtful). Interpreta-

tive schemes are needed to keep the context of justification intact, whose exis-

tence accounts for the fact that statements about the law can be either true or

false. Only if norms that are elements of this context are held to be valid is it pos-

sible to determine whether a new norm (or institutional fact) has been created in

a legal act. Therefore, the legal system plays the role of a scheme of interpretation

and of a context of justification. The one is merely a different way of expressing

the other. The scheme of interpretation is used to justify claims concerning the

validity of norms. The application of rules whose function is to govern the crea-

tion of norms is a necessary condition for the empirical reality of the state and of

its organs. The state reveals itself only from that angle. Otherwise, it would re-

main entirely obscure.

Ostensibly, Kelsens observations have a strong analytical thrust.55 He con-

tends that descriptions of the state as a social reality can only be meaningful if the

state is seen from the perspective of a normative system. Nevertheless, these ob-

servations do not suffice to prove the identity of state and law. To confound an in-

terpretative scheme with the product of interpretation is a mistake. Language is

not the same as a spoken word. The spoken word does not mean the grammatical

15

and semantic rules that account for meaningful speech. It means something dif-

ferent. It is merely articulated through the use of these rules.

At first glance, Kelsens identity theory must therefore strike one as quite puz-

zling.

6. State Nominalism and Legal Essentialism

The state is what lends unity to the legal context of justification. That is Kelsens

most thorough version of deontologisation. It is radical. Nevertheless, Kelsen does

not pursue it as radically as one might have expected. Deontologisation would

have been truly radical had Kelsen unambiguously rejected any reification of the

state and thus avoided treating the state qua legal system as one institutional fact

among others.

But Kelsen did not go that far. He did not, I surmise, for two reasons. Both rea-

sons speak to the difficulty one encounters in making the identity theory plausible.

The first reason has intuitive appeal. The second does not. To the first I will re-

turn in this section. The second has to do with the fact that Kelsen, out of genu-

ine enthusiasm for his identity theory, was lead astray and conceived of the legal

system as an institutional fact. He lost sight of what the state would have turned

out to be had he only himself taken the project of deontologisation seriously. I will

return to this topic in section 13.

The first reason as to why Kelsen treats the state as an institutional fact springs

from his realisation that it is necessary to separate the state as a substantive legal

16

concept from use that is made of the signifier state for purposes of defending

the identity claim. The interpretative schemes of the legal system identify some

legal acts qua acts of state but do not impute every instance of conduct to this in-

stitution: The state, then, is a legal system. Not every legal system, however, is

characterised as a state [].56 The deontologisation of the state results, thus, in

state nominalism. State (or statal) is whatever is designated as such by positive

legal system. Historically, a description of a segment of the legal system as a

state presupposes a certain degree of centralisation in the creation and imple-

mentation of norms.57 Indeed, Kelsen thinks that the legal constitution of the

state as a legal person, a corporation, creates an institutional fact. Its constitutive

rules can be found in national and international law.

From the outset, however, Kelsen wishes to go beyond mere state nominalism.

His iconoclastic project endorses a position that I would like to call legal essen-

tialism. Accordingly, by its very nature the state is law. According to Kelsen,

each act of state is, essentially, a legal act.

Legal essentialism is not just another name for identity theory. Identity obtains

only if every legal act is also an act of the state.58 Identity means that all law is

statal. Pursuant to deontologisation no more can remain of the state than the

legal constitution of state acts and the state as a legal person. What are we to

make, then, of acts that are not defined by the legal system as acts of the state

but are nonetheless legal acts, such as contracts between private parties? Are they,

17

essentially, acts of state? If Kelsen expected us to swallow that without further ex-

planation we would become suspicious that the identity theory is either empty or

false.

The identity theory is empty if it simply complements state nominalism with

legal nominalism. The state, in Kelsens view, is essentially the law. And why not

call all law also the state? Evidently, nothing would be gained from the intro-

duction of such a semantic rule. The more extensive concept of the state would

actually be used merely as another name for the concept of law.

The identity theory is false if it is predicated on a nominalistic concept of the

state. State nominalism must treat the identity of state and law as a contingent in-

stitutional fact. A legal act is an act of the state if and only if the legal system im-

putes that act to the very entity that is designated as the state by the same legal

system. But there is no necessity for a legal system to incorporate such a rule.

Kelsenian legal essentialism is not affected by the absence of this necessity. It

can still be claimed that every act of the state is essentially a legal act. But the op-

posite cannot be true. Identity theory appears to be in conflict with state nominal-

ism.

7. The Meaning of the Identity Theory

Seemingly, there is a simple way to resolve this conflict. Legal essentialism says

that every state act is a legal act. The immanent critique of dualism and sociologi-

cal approaches in general establishes that the state is merely what lends unity to

18

a legal system. From this it seems to follow that every legal act must be an act of

the state because it originates from the legal system. With regards to its form, the

legal act is determined through the unity of the norm system. It is therefore, ar-

guably, at a deeper level a state act.

Such a resolution of the conflict is not convincing, however.59 It is metaphysi-

cal. The determination of a statement by the systematic context in which it is em-

bedded does not reflect a real predicate. Despite all transcendental Schein60 origi-

nating from the idea of unity of the normative system, it would be erroneous to

believe that the systematic context of a legal act determines what it is. This would

be exactly like claiming that to be part of the world is a quality of facts.

As I see it, the conflict can only be resolved if one understands the identity

theory as flowing from one general premise of Kelsens legal doctrine. State nomi-

nalism is an application of this doctrine.

For Kelsen, the legal subject has no flesh and blood reality. It is a normatively

created bundle of imputations. He also refers to such bundles as partial legal sys-

tems (Teilrechtsordnungen).61 What is true of the state62 is also true of human be-

ings. The natural person and the legal person are interpretative schemes that

play an important role within the context of legal justification. They are points of

imputation that are created by the legal system. The natural person is contrived

through the law exactly as the collective state person, a subunit of which is com-

missioned with the task of law enforcement.63 From the view of the legal system,

19

it is irrelevant to take cognisance of the psychological correlates of such con-

structs. What is important is that among the contrived subjects obligations have

been created that are backed up with sanctions. If this condition is met, a legal re-

lationship exists between the subjects. Every legal relationship authorises the con-

trol of one person by another because the legal system is composed of norms that

are implemented by force.64 Consequently, the power that one ascribes to the

state manifests itself everywhere in the legal system, in particular, also in the pri-

vate sphere.

The law is a homogeneous system of coercion. In the final analysis, all law is

about the authorisation of coercion. Thus understood, law is by its nature some-

what like the state. When matters become serious, one commands and the other

may deem it necessary to obey. But this also applies to private law.

In this way, Kelsen establishes a weak link between law and what is usually as-

sociated with the state. It is predicated on the notion that the heteronomous

positing of norms and the imposition of force are usually connotated with the au-

thority of the state. This connotation is the extract of the sociological state con-

cept that enters into Kelsens concept of law.65 This is the only basis that I can

find for the fully articulated identity theory.

The identity theory could not be made plausible if one were to approach it

from the perspective of Kelsens immanent critique. According to this critique,

the advocates of a sociological theory of the state only vaguely understood that

20

the state accounts for the systematic unity of the legal system. This unity needs to

be presupposed, for without it no statement about positive law could be either

true or false. Legal norms belong to an system of norms. The state is the whole that

transforms the composite norms into components of a system. But the state is, of

course, neither among nor in some mystical way contained in these components.

It is also not only the sum of its parts. The state is not the legal system in the sense

of an ordered mass of norms. This needs to be noted, in particular, vis--vis Kel-

sens own oscillating formulations, in which he refers to the state as a system of

norms or the expression for the unity of such a system, or as a legal system or the

unity of this system, respectively.66 These ostensibly undecided, strange formula-

tions reveal that Kelsen, at the level of the identity theory, is inclined to conceive

of the state in extensional terms as a totality of norms. This is the second reason,

mentioned above, that leads Kelsen to believe, apparently, that the state is an in-

stitutional fact. The state is coextensive with the legal system. The legal system

is composed of a bundle of norms. This interpretation of the legal system over-

laps with, and is reinforced by, the view of the norm as an abstract object.67 Ow-

ing to this overlap, the institutional fact legal system has the outlook of the sum

total of the abstract objects called valid legal norms. Kelsen surreptitiously as-

sumes this without regard for whether the legal system avails itself to a scheme of

self-interpretation that would authorise such a self-understanding (which is in-

deed the case for the relation between domestic law and international law). I be-

21

lieve this aberration stems from Kelsens polemic enchantment with identity the-

ory. The closer examination of this second reason in section 13 will reveal, how-

ever, that the reason is not at all a good reason.

8. The Internal Asymmetry of Identity Theory

Even in the interpretation offered above, the identity theory suffers from a strange

asymmetry. From an extensional perspective, identity is a mutual relation of com-

plete inclusion. While the inclusion of the state in the law is inferred from the

failure of attempts to make sense of the state in terms other than the laws own

systematic composition (Eigengesetzlichkeit)68, the inclusion of law in the state fol-

lows merely from the connotation of statal authority with relationships of subor-

dination and subjection. Consequently, the identity theory has a double root. It is

revealed, on one side, along the path of despair69 on which Kelsen observes, dia-

lectically, sociological state theory progress toward self-subversion; on the other

side, it arises from the mere connotation of effective relations of domination with

the state. As we have seen above, Kelsen incorporates this connotation into his

concept of law.

According to Kelsen, the relation of mutual inclusion gives rise to the follow-

ing synthesis: since it follows from the identity of the state and law that appeals to

the state are nothing short of invocations of the unity of the legal system, this sys-

tem presents itself as a homogeneous coercive system. Every exercise of authority

that respects the limits drawn for it by law has a statal character. No exercise of

22

authority and no relation of domination, when based on legal relationships, is

more harmless than any other. Even employment law and family law are public

law, at least in so far as addressees find themselves in a position of subjection.

Kelsen is thus concerned with clarifying the nature of the state. The fully articu-

lated identity theory is not at all reductionist. It has precisely the opposite thrust.

It makes explicit the exercise of social power that is implicit in every act of law

creation and construes it, where possible, as legally warranted exercise of author-

ity. According to Kelsen, the private law created in the contract is no less the

arena of political power than the public law created in legislation and administra-

tion.70

The relation of mutual inclusion, thus, offers a new insight. The claim that the

state has a social reality independent of law is dialectically forced to concede to its

own negation. The relation borrowed from the historical connotation of power

and state, suggesting that the rule of law is essentially like statal domination

makes sense only against the background of Kelsens polemic position vis--vis the

apolitical pretensions of private law. It does not reach up, inasmuch as the ana-

lytical level of exposition is concerned, to the conceptual labour underlying the

presentation of the first relation of inclusion.

But this is not the only reason to assume the fully articulated identity theory is

tarnished with an asymmetry. If one wished to be ironic one could even say that it

has two sides.

23

The fully articulated identity theory is asymmetrical since the states inclusion

into law owing to the typically statal element that is smuggled by Kelsen into the

concept of law. What is interesting about identity theory is merely the assertion

that the state is an exclusively legal phenomenon. In fact, it exhausts itself in this

assertion. In my opinion, this is the real point of Kelsens iconoclastic program.

That the state is the legal system means, in the final event, that all law is stateless

law.

9. Demystification

On the basis of deontologisation, Kelsen moves to demystification. He deploys

Ockhams razor (entia non sunt multiplicanda). If that which is described as a

state is just another expression for the unity of a legal system or, which amounts

to the same, a consistent context for the justification of norms, then the positing

of the state as an additional social entity has been exposed as fictitious.71 The

doubling of the law into something that presupposes outside of itself also the state

is thoroughly rejected. Awareness should grow that the state, as unity of the legal

system, plays the role of an epistemological presupposition. The state is a function

of meaningful legal thought.72

The point of demystification becomes clearer if one recalls Kelsens meta-

phorological analyses73, with regard to the homological function served by God

and the state in theology and constitutional doctrine, respectively.74 Just as God

is taken in theology to be the creator in relation to creation, in legal thought the

24

state plays the role of the creator in relation to the legal system. As the originators

they stands outside of and reside beyond their creation. God and state are om-

nipotent. They commit themselves through acts of self-limitation to their crea-

tion.75 In the face of the clandestine change of references in relation between le-

gal and theological concepts, Kelsens claim appears reasonable that, political the-

ology notwithstanding, the state is not the primary force. The truly creative and

mighty role that one attributes to the state originates from a scheme of interpre-

tation. It supplies the background without which true statements about what is or

is not a state act would be impossible.

It is not unreasonable to claim, as Kelsen does, that unity is necessary for the

validity of statements about the law, at any rate, so long as one follows him in

adopting a content-independent description of the law. It is articulated in the dy-

namic concept of the legal system. According to the dynamic concept, a legal

norm is valid if it is created through a procedure that is governed by another legal

norm, which in turn accounts for its own validity. This hierarchical structure of

the context of justification has at its apex in a finalhypothetical, fictional, or

transcendental-logically necessarybasic norm.76 Just like all other norms in the

chain of creation performing the role of enabling power-conferring conditions, the

basic norm is also a power-conferring norm and commands respect for the norm

issued by social authority.77

25

10. What Kelsen Does Not Observe

The dynamic view offers a great advantage to a legal doctrine that is deeply scep-

tical of morality. The basis of validity can be based on content-independent rea-

sons. Nothing turns on the substance of norms. Validity depends on the fact that

organs with jurisdiction create law on the basis of already existing law. Neverthe-

less, what needs to be presupposed by conceiving of validity along these lines is

the unbreakable continuity in the relation of legal acts. In this respect, the dy-

namic view presupposes the unity of the legal system. Unity is continuity in the

chain of creation. It is not a thing, of course, but rather a synthetic principle that

is indispensable for assessing the validity of singular norms. According to Kelsen,

the prevailing theory personified continuity into the state and indirectly pulled an

ideological veil in front the actual relationships of subordination.78 The major cul-

prit, again, is Jellinek. The state is, according to him, simply the powers that be

(die Obrigkeit).79

At this point, however, one encounters a serious deficiency of Kelsens theory.

Kelsen did not take into account the problem of interpretative power at all.80 This

is not to say that he would not have been sensitive to the fact that legal norms al-

low for ample interpretative space; he even believed that there were no rational

solutions to conflicts of interpretation.81 What he fails to recognise, though, is

that the success of legal claims is in fact dependent on the social (or legal) author-

ity of the person making it. He does not view, that is, the establishment of conti-

26

nuity in the process of norm-creation as a social activity. The first to have uncov-

ered this blind spot in his theory was his disciple Fritz Sander.82 Owing to this

blind spot, identity theory remains unsatisfactory. Following Kelsen, the legal sys-

tem as scheme of interpretation would have to necessitate the subject of cognition

to believe certain things. Legal cognition would have to be principally passive. At

this point, demystification loses momentum. It turns its back on the fact that in-

terpretation is a social activity. Precisely because of the construction of interpreta-

tive linkages and the social power on the basis of which certain interpretations are

rejected or, even worse, simply neglected, Kelsen could have arrived at profound

insights into the true reality of the state.83 The state, he could have argued, is

not a whole (ironically, the holism of the sociological approaches is preserved in

Kelsens preoccupation with unity) but the social phenomenon, to which the at-

tention of legal analysis must be directed inasmuch as those wielding legal author-

ity juggle legal texts, manipulate precedents and push unwelcome arguments out

of their way.

11. Reservations

Nevertheless, I am inclined to believe that Kelsens project is in principle defensi-

ble. My inclination is, however, subject to three reservations.

First, I find the question underlying Kelsens epistemological intention (see

section 2) not at all intriguing. I believe it to be incompatible with more recent in-

sights into the role played by so-called anaphora. Through reflexive designa-

27

tions, anaphora make it possible to refer to the same reality from different perspec-

tives. We thus can mutually make intelligible to others our views of things.84 This

possibility resides in language. I see no reason to harbour doubts about it. I con-

clude, therefore, that sociological and legal descriptions are not doomed to speak-

ing past one another because, in speaking differently, they invariably constitute ir-

reducibly different objects of reference.

Secondly, I contend that Kelsen is blind to the social basis of legal communica-

tion. I pointed this out already in Section 10. In this section, I will add an addi-

tional observation.

Thirdly, Kelsen falls short of attaining a clear perspective on the function of

the state as a synthetic principle owing to his proclivity to conceive of the le-

gal system as if it were an institutional fact. For Kelsen, there is something like a

legal system. It is made up of norms. Norms are abstract objects. He falls short of

pushing deontologisation to the hilt. I will return to this observation, which I al-

ready hinted at in Section 6, in Section 13.

Even though I would add these reservations, I nonetheless believe that both

the deontologisation of the state and its attendant demystification do formu-

late important insights. They are obtained from the immanent critique of the state

doctrine that Kelsen encountered in contemporary constitutional theory. Kelsens

insights are, therefore, not independent of this context of discovery. It accounts

for a plausibility that it would otherwise lack. But even though the origin of Kel-

28

sens theory should not be forgotten, its application is not strictly limited to it.

This is shown not least of all in the fact that his theory has turned out to be re-

markably resistant to critique.

Kelsens iconoclastic program attracted vehement criticism.85 The observation

of Hermann Hellers may have struck the heart of the difficulty, according to

whom Kelsen, because of the abolition of the fundamental difference between

state and law, mistook the ideal system of norms for a real organisation of collec-

tive action.86 One might therefore want to point out to Kelsen that his arguments

are based on an almost absurdly truncated view of social phenomena. By taking

into consideration merely those state acts that are based on legal acts, he has an

easy time of it, making his opponents look bad. Yet the range of acts that is com-

monly referred to as acts of state is not that narrow: marches, speeches, and the

usual rituals in celebration of state holidays, are, after all, also state acts. They

are just as much ignored by Kelsen as all the other acts of organs of the state that

do not result in the creation of law, but are nonetheless equally or even exceed-

ingly essential to the stability and vitality of a political community. Among these

are negotiating, planning, visiting, announcing, reassuring, comforting, and the

vast field of co-ordinating and managing.87 Kelsens critique seems to be going too

far. He ignores phenomena that, admittedly, are based on the institutional facts of

law, but do not coincide with a creation of norms. In Kelsen, thus, exercise of

state power is illegitimately reduced to the issuing of norms.88

29

I believe that Kelsens position can be defended against this objection. One

must simply take into account under what condition negotiations, promises, reas-

surances, considerations, planning or moderation can be taken to be acts of the

state. The impression that non-normative state acts exist comes into being be-

cause conduct of this sort is carried out by humans that have been appointed to

serve as organs of the state. The requirements governing their appointment are

laid down by law. In what way could their conduct be imputed to the state? In

the functional sense, an act of state presupposes a legal rule establishing responsi-

bility by the state for the conduct of its organs. On this point, Kelsen stands unde-

feated. Should one nevertheless wish to rejoin that politically salient but legally ir-

relevant acts of reassuring, moderating, promising, and glossing over by the Chan-

cellor are nothing short of acts of state, then one is guilty of exactly that hyposta-

tisation the spell which Kelsen was wishing to overcome. What we have really

before us are acts of the Chancellor as an individual human being, and not acts of

the state. Consequently, there is nothing to them that would make them more

eminent or dignified than the acts of other persons.

From another perspective, Kelsen could still be viewed as vulnerable on a dif-

ferent point. In his discussion of Jellinek, he claims that merely the objective va-

lidity of the legal system can provide the unifying perspective from which the va-

lidity of individual acts can be determined.89 Kelsen does not confront the prob-

lem of teleological judgement that presents itself here. Instead, he hides behind

30

his neo-Kantian theoretical program. The finality of the system is ascribed to the

object by the subject of cognition so that the diversity of human activities and de-

sires is seen to be organised from a unified point of view.90 The description of law

offered by legal science presupposes the legal system.91 The legal system as it exists

arranges itself along a unitary pattern. What might it be that ensures that legal

cognition does not delude itself in the face of disorder and puzzling diversity?

It should be kept in mind that Kelsens epistemological position is informed by

an immanent critique that tries to debunk one by one any alternative for the ex-

planation of unity other than the legal system. Alternatives are not eliminated on

the basis of one potentially overpowering transcendental argument. Hence, deon-

tologisation needs to be defended against every alternative means of understand-

ing state unity. It has to prove its validity in the contest with alternatives.

One well-known alternative was brought into play by Herbert Hart.92 In his

opinion, the unity of the legal system can be described from an external perspec-

tive by reconstructing the rule of recognition that is used by legal officials in or-

der to identify valid legal materials.93 The rule of recognition is introduced by

Hart in order to grasp the social practice of dealing with legal norms, which I al-

ready tried to identify above as a blind spot in Kelsens theory. Whether or not the

rule of recognition can really be described as rule is a problem which need not

concern us here 94. It is important, though, that the question of the reality of state

implicates the type of reasons a positivist theory accepts as satisfactory for estab-

31

lishing the validity of legal rules. Whether it is better for legal positivism to adopt

an internal perspective, with a hypothetical basic norm at the apex of the system,

or to describe the conventions followed by the legal community when it goes

about identifying valid laws depends upon what one expects a positivist program

to deliver. I, for one, allow myself to be agnostic on this point.

Another alternative could bring into focus the current use of the state as an

argument in political discourse. The state is the guardian of the national economy.

It is the agency in charge of fostering economic prosperity. Statesmen and states-

women make it their task to increase the GDP. The state exists as an institution

that serves the national political economy by issuing or repealing regulations.

From Kelsens perspective, one could reply to this view that the object of statal

concern is the legal system. States always find themselves in a situation of regula-

tory competition, which concerns the substance of national laws. The counter-

argument made to the first objection can thus also be transferred to even such an

account of the state. The folks holding political offices, who are on the leash of

their economic clientele, are the ones who find themselves exposed to the pres-

sure of regime competition and not the state.

12. The Reality of the State According to Kelsen

At any rate, certain statements belong to the state as an ideal reality95 according

to Kelsen. In a sense, the picture can be complemented by saying, as Luhmann

did, that the legal system consists of communications96. The ideal reality of the

32

state is not manifest in a feeling of community.97 Kelsen is thoroughly precise on

this point. Statements, systematically determined by the context of law creation,

belong to the ideal reality of the state.98 Statements about norm-conforming be-

haviour are also part of the ideal reality of the state. The persons that create law

and to whom one refers colloquially or by virtue of positive law as state organs,

such as judges, district attorneys, or police, do not belong to this reality. The state

is not comprised of persons.99 Of course, state nominalism admits of legal norms

and legal acts that explicitly designate certain persons to act as organs of the

state.

Nominalism aside, the reality of the state depends on human behaviour. Yet,

owing to that dependency, it does not exist in an ideal and in a material form.

It also does not exhaust itself in the relationship between normative meaning and

conformity with such meaning.100 The experiences and dealings of persons that

create norms, or that describe the positioning of norms or compliance with norms

for the purpose of norm creation, are not part of the state. The meaning of an ex-

pression does not consist of the inner picture or the feeling that it evokes. From

the perspective of the analytical philosophy of language, Kelsens claim is cor-

rect.101 Beyond that, the separation of the meaning of the norm from the inner

experience of the addressees or law-applying officials also contributes to the in-

tegrity of legal reason. Legal reasoning can be severed in this way, according to

Kelsen, from the illicit influence of moral sentiments.102

33

13. Radical Deontologisation

Radical deontologisation reduces the state to a condition that is necessary in order

to arrive at a meaningful statement about positive law. In plain language, it means

that for the justification of a statement about positive law it is necessary to pre-

suppose the legal system as a system. Thus understood, deontologisation is not

surprising. One needs merely to take into account that the systematising mo-

ment of the legal context of justification is manifest in a normative concept of order

that is brought to bear, directly or indirectly, on any determination of rights and

obligations. In its most elementary form, it is reflected in the maxim that like case

are to be treated alike. Meeting the demands made by a concept of order is a con-

dition for the validity of the law in view of its application to individual cases.

When personifications are made in order to fulfil this demand, then they fulfil a

practical function.103 They do not involve ontological commitments. They may

even be indispensable, so that the demands made by the legal community can be

articulated on the level of adjudication. In this vein, Dworkin distinguishes be-

tween conceptions of the legal community and explains the relation that necessar-

ily obtains between those conceptions and what is considered to be an acceptable

legal justification.104

On the basis of identity theory, something illuminating can also be said when

one is not a legal positivist. This even indirectly confirms Kelsens idea of state as

the substantive concept (Rechtsinhaltbegriff). What the state owes to its citizens

34

is expressed in the substance of legal justification. Only in passing might I note that

this describes the path from which one could arrive at Hegel, departing from Kel-

sen.

Kelsen stopped short of radical deontologisation. Deontologisation is not fol-

lowed through. Only the state is eliminated from the two-sided thing, while the

law stays in place. Contrary to his own insight, he didnt restrict the (de-

)ontology of the legal system to the style of legal justification. Kelsen turned the le-

gal system into an institutional fact, which is comprised of valid norms. It is more

than merely ironic that Kelsen, in his attempt to avoid the hypostatisation, re-

sorted to the crudest hypostatisations of all: the ontological supposition of the

realm of norms.105 The norm, indeed, plays the role of the reifiedeven linguis-

tically reified106combination of reasons for action as which a legal norm pre-

sents itself on the basis of radical deontologisation.107 Once this reification is re-

moved, the order evoked by Kelsen comes to the fore, that is, the style in which

legal justification is conducted in a community.

The explanation for why Kelsen shrunk back from radical deontologisation

lies, I surmise, in his moral scepticism. He feared that a consideration of reasons

from which rules of law are assembled, if unchecked by the reified meaning of

norms, would necessarily blend into moral reasoning. This is why Kelsen always

favouredin all ways but clearly108an understanding of normativity that re-

places the person-relative validity of reasons with the person-indifferent normativ-

35

ity of elements of a class.109 That a norm is valid means that it is a component of

a legal system owing to its mode of creation. For a norm, thus understood, to have

any meaning at all the meaning of the norm text needs to be mistaken for norma-

tivity itself.

Legal theory after positivism has uncovered this typically positivist subter-

fuge.110 Going beyond positivism, however, all that had to be done was to draw

out the consequences of Kelsens theory. Indeed, an interesting price had to be

paid also. It becomes increasingly difficult to trace back normative meaning to an

end point in the continuum of the legal system. The centre becomes elusive. After

positivism, theory observes reasons interacting in networks.111 This may also be

the explanation for why there is no longer talk of the hypokeimenon spirit, but

rather of the more elusive language game. The game stands for an indeterminate

mode of determination that defies determination itself (and is dialectically impec-

cable, as far as that goes).112

Against this background the currently popular discussion about the end of the

state can be seen in a different light.113 It is ultimately intertwined with (and ex-

hausts itself in) the end of the legal system as we have known it up to now.114

But that is a different story.

36

Endnotes

* As always, I should like to thank Elisabeth Holzleithner and my wife Sabine for the

critical reading of an earlier version of this article. I also benefited immensely from sugges-

tions made by Stanley L. Paulson. The article was written, originally, in the mother tongue

of legal positivism. I owe a great debt of gratitude to my research assistant James Proven-

zale for his invaluable assistance in rewriting the text in English.

1 For a summarised statement, see H. Kelsen, Reine Rechtslehre (1934) at 117-19.

Henceforth I will refer to the translation of this work by Bonnie Litschewski and Stanley

L. Paulson. See Hans Kelsen, Introduction to the Problems of Legal Theory (1992) at 99-100.

2 H. Kelsen, Der Staat als Integration. Eine prinzipielle Auseinandersetzung (1930) at 4

(my translation).

3 H. Kelsen, Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des

Verhltnisses von Staat und Recht (2d ed. 1928) at 205.

4 See Kelsen, above n 1 at 98; Kelsen, above n 2 at 28; Kelsen, above n 3 at 210.

5 Above n 3 at 137-39.

6 C. Mllers, Staat als Argument (2000) at 125.

7 Hans-Joachim Koch, Einleitung, in: ders., Die juristische Methode im Staatsrecht. ber

Grenzen von Verfassungs- und Gesetzesbindung (1977) at 67. For a similar observation, see

Stanley L. Paulson, The Theory of Public Law in Germany 1914-1945, forthcoming in OJLS

(2005).

37

8 See Mllers, above n 6 at 125.

9 Nevertheless, see H. Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei

Hans Kelsen (1986); N. Achterberg, Die Reine Rechtslehre in der Staatstheorie der

Bundesrepublik Deutschland, in: Der Einfluss der Reinen Rechtslehre auf die Rechtstheorie in

verschiedenen Lndern (1978) at 222; see also R. Lippold, Recht und Ordnung. Statik und

Dynamik der Rechtsordnung (2000).

10 Today, constitutional theory in Germany is in a state that Kelsen would have ab-

horred. It is epitomized in a jurisprudence that believes in the rational pursuit of balanc-

ing. For a strong statement of such a theory, See Robert Alexy, A Theory of Constitutional

Rights (2002).

11 This term is used in the sense of Husserls. See also R. Gasch, The Tain of the Mir-

ror. Derrida and the Philosophy of Reflection (1986) at 111-115; M. Heidegger, Sein und Zeit

(1977) at 22. It means overcoming the distortions of a concept suffered as a consequence

of common, ordinary understandings.

12 For example, see Kelsen, Allgemeine Staatslehre (1925) at 6; See also Kelsen , above

n 2 at 21-22.

13 See Kelsen, above n 3 at 109-10 (my translation).

14 For a sketch of Kelsens neo-Kantian phase, see S.L. Paulson, Introduction, in: S. L.

Paulson B. Litschewski Paulson (eds.), Normativity and Norms. Critical Perspectives on

Kelsenian Themes (1998) xxiii-liii.

38

15 See Kelsen, above n 2. Later, Kelsen was anxious, however, to have also Rudolf

Smend seen as the main proponent of this theory.

16 See Jellinek, Allgemeine Staatslehre (1913) at 137-38, 174-83, 365.

17 Ibid at 180.

18 Ibid at 179.

19 Ibid at 180-181 mit ursprnglicher Herrschermacht ausgerstete Verbandseinheit

sesshafter Menschen.

20 See Kelsen, above n 3 at 114, 129-30.

21 Kelsen, above n 2 at 33-34.

22 That may have to do with the lack of clarity regarding the difference between em-

pirical and conceptual content itself. See W.V.O. Quine, From a Logical Point of View

(1961).

23 See Kelsen, above n 3 at 130.

24 What Kelsen has in mind here are theories that locate the social in processes of in-

teraction. See Kelsen, above n 3 at 14-15. Major representatives of these theories are

Simmel and Spann. See G. Simmel, Soziologie, Untersuchungen ber die Formen der

Vergesellschaftung (repr. 1992); O. Spann, Gesellschaftslehre (3d ed. 1930).

25 See Kelsen, above n 3 at 125, 128.

26 See Kelsen, above n 12 at 12.

27 See e.g., ibid at 16.

39

28 See Mllers, above n 6.

29 See Kelsen , above n 12 at 16.

30 See Kelsen, above n 1 at 99-100.

31 See Kelsen, above n 3 at 133, 206.

32 Ibid at 121;

33 Kelsen, above n 2 at 34.

34 See Kelsen , above n 3 at 121.

35 Ibid at 130 (my translation).

36 Kelsen, above n 1 at 104-105.

37 See Kelsen, above n 3 at 121.

38 Ibid at 122: There is not the slightest doubt that the system, under which the ma-

jority of ruling relationships appear as the unity of the state, is nothing other than the legal

system, and that this system is reflected in Jellineks constantly repeated assurance that the

state is fundamentally the law. (my translation).

39 Ibid at 125.

40 Ibid at 1928, 112-113; 1930, 37, 40.

41 Kelsen, above n 3 at 126.

42 Ibid at 128.

43 Ibid at 129-130.

40

44 See Kelsen, above n 2 at 39-46.

45 According to Smend, the stately chain of life takes effect also in the depths of a

passive mass. It is conveyed through the participation in the World War. This participa-

tion finds a visual lasting impression of the feeling of belonging together. Kelsen is scepti-

cal as to what participation in war really conveys (See Kelsen, above n 2 at 40). The par-

ticipant in a world war [] experiences the parade-ground drill, the trenches, the as-

sault, the barrage and thousands of other particulars which, in their mosaic totality (the

totality of experience) describe everything except the real unity of the sociological state

and least of all of the unity of a particular state[]. (my translation).

46 See Kelsen, above n 2 at 41.

47 Laconically, Kelsen establishes the following: The people that belong to a state

want the same thing, namely the same state system, because they are treatedby this or sys-

tem, namelyas if they all knew this system and were in agreement with its content. This

is the good old fiction of legitimisation. The need to justify the state system leads to the

thing which, from the standpoint of a particular view of value, could be a reason for the

validity of the state system to be invented as a real fact. The same endeavour, namely, to

strengthen the authority of the state, leads Smend to his fiction of the reality of the state

association, which in the end reveals itself. Ibid at 43 (my translation).

48 See Kelsen, above n 12 at 16.

49 Kelsen, above n 2 at 35.

41

50 Regarding the concept of the institutional fact, see J. Searle, Speech Acts. An Essay

on Philosophy of Language (1968) at 80-81; J. Searle, The Construction of Social Reality

(1995) at 43-52. The term made furore in legal theory, in particular with MacCormick and

Weinberger (see N. MacCormick and O. Weinberger, Grundlagen des institutionalistischen

Rechtspositivismus [1985]), because it has always been used implicitly in the legal theory.

With regard to the last point, see D.W.P. Ruiter, Institutionelle Rechtstatsachen. Rechtliche

Ermchtigungen und ihre Wirkungen (1995).

51 See Kelsen, above n 2 at 25.

52 See I. Kant, Kritik der reinen Vernunft (1787) 565 (B 672).

53 The history of the modern jurisprudence is largely based on the fact that this idea

has not been understood as a practical standard of justification (as with Kant and later

with Dworkin), but rather as theoretical assumption for the purpose of legal science. See

A. Somek, Rechtssystem und Republik. ber die politische Funktion des systematischen

Rechtsdenkens (1992).

54 Mllers, above n 6 at 37-38, sees this quite correctly.

55 Actually, it is based on a critical examination of meaning. See, generally, Karl-Otto

Apel, Transformation der Philosophie I (1973) at 340-344.

56 See Kelsen , above n 1 at 99.

57 Ibid at 99-100.

58 See Kelsen, above n 3 at 248.

42

59 See A. Somek, above n 54 at 33.

60 See Kant, above n 52 at 308-311 (B 350-355).

61 See Kelsen, above n 3 at 134-35; Kelsen, above n 1 at 55, 119-120.

62 Kelsen, above n 3 at 134: The person of the state is the personification of the total

legal system, the rest of the persons are personifications of partial legal systems []. (my

translation).

63 See Kelsen, above n 1 at 100-104.

64 See Kelsen, above n 1 at 26, 106.

65 This is clear in Kelsen, above n 12 at 17. Students of Derridas writings may be in-

clined at this point to observe that the sociological concept of the state enters as a sup-

plement into Kelsens concept of law.

66 These quotes appear in one and the same sentence in Kelsen, above n 12 at 16. My

talk of oscillating formulations derives from a little maliceKelsen ranted and raved

against Smends method of oscillations. See Kelsen, above n 2 at 16 and passim.

67 According to Heidemann, Kelsen came to adopt view in his post-neo-Kantian pe-

riod See C. Heidemann, Die Norm als Tatsache. Zur Normentheorie Hans Kelsen (1997) at

66, 185. What this view is precisely about and whether it was indeed ever held by Kelsen

was subject to subtle controversy. See S. L. Paulson, Four Phases in Kelsens Legal The-

ory? Reflections on a Periodisation (1998) 18 OJLS 153; C. Heidemann, Norms, Facts,

and Judgements. A Reply to S. L. Paulson (1999) 19 OJLS 345; S. L. Paulson, Arriving at

a Defensible Periodisation of Hans Kelsens Legal Theory (1999) 19 OJLS 351.

43

68 See Kelsen, above n 2 at 6 (incorporating an expression of Smend).

69 In the sense of the word as used by G.W.F. Hegel, Phnomenologie des Geistes (repr.

1971) at 72.

70 Kelsen, above n 1 at 96.

71 See Kelsen, above n 3 at 209, 217.

72 One can find this concept so clearly defined only in Kelsen, above n 3 at 212-13

(following Cassirer).

73 For more on this, see A. Somek, Der Gegenstand der Rechtserkenntnis. Epitaph eines

juristischen Problems (1996) at 20-26.

74 Kelsen, above n 3 at 249, even asserts that the relationship between state and law

delivers the model for the theological determination of the relationships between God and

nature.

75 See ibid at 221, 223-24, 227.

76 The characterizations of the status of the basic norm vary in Kelsens work. See S.L.

Paulson, Die unterschiedlichen Formulierungen der Grundnorm, in: Rechtsnorm und

Rechtswirklichkeit (Festschrift Krawietz) (1993).

77 One could, of course, ponder endlessly about the deontic format of the basic norm.

See ibid.

78 Kelsen, above n 1 at 105.

44

79 See Kelsen, above n 3 at 127. That a mental leap is possible from such an incredi-

ble dimension, without coming to the consciousness of the author, only explains that,

through such a mental leap, a position is reached that is the expression of a way of think-

ing that is taking for granted as a natural and absolutely valid idea the hypothesizing of a

unity of thinking into a real, strong-willed, powerful being. (my translation).

80 This is clear in Kelsen, above n 12 at 17.

81 See, e.g., Kelsen, above n 1 at 81-82.

82 For more on this, see A. Somek, Ermchtigung und Verpflichtung to appear in S.L.

Paulson & M. Stolleis (eds.), Hans Kelsen (2005); A. Somek, above n 78 at 102-103.

83 See A. Somek N. Forg, Nachpositivistisches Rechtsdenken. Inhalt und Form des

positiven Rechts (1996) at 143-176.

84 See R. Brandom, Making it Explicit. Reasoning, Representing, and Discursive

Commitment (1994) at ch. 7; J. Habermas, Wahrheit und Rechtfertigung. Philosophische

Aufstze (1999) at 155-56.

85 See Koch above n. 7 at 67.

86 See H. Heller, Staatslehre (1934) at 56.

87 See, more generally, Lon L. Fuller, The Principles of Social Order, ed. K. I. Winston

(1981).

88 In particular, see Kelsen, above n 2 at 62-63.

89 See Kelsen, above n 3 at 123.

45

90 Ibid at 124.

91 Ibid at 123.

92 I pick this up in the above-mentioned second reservation in section 11.

93 See H.L.A. Hart, The Concept of Law (1961) at 98-99.

94 See S. Fish, Doing What Comes Naturally. Change, Rhetoric, and the Practice of Theory

in Literary and Legal Studies (1989) at 503-24.

95 See Kelsen, above n 2 at 9-10.

96 See N. Luhmann, Das Rechtssystem der Gesellschaft (1993).

97 See Kelsen, above n 2 at 14.

98 See ibid at 12-13.

99 See ibid at 14.

100 See ibid at 13.

101 See H. Putnam, Representation and Reality (1988) at 70.

102 This is what Kelsen writes about, above all in separating himself from experienc-

ing or from the oscillating reference to the reality of the state life that Smend was so

fond of.

103 See R. Dworkin, Laws Empire (1986) at 170-171.

104 See ibid at 209-215.

105 See Heidemann, above n 68 at 66.

46

106 See C. Demmerling, Sprache und Verdinglichung. Wittgenstein, Adorno und das Projekt

einer kritischen Theorie (1994).

107 See A. Somek, above n 54, above n 78, Somek/Forg, above n 88 and of course the

classic exposition by J. Raz, Practical Reason and Norms (1990).

108 See S.L. Paulson, The Weak Reading of Authority and Hans Kelsens Pure Theory

of Law, Law and Philosophy 19 (2000) 131171; S.L. Paulson, Faktum/WertDistinktion:

ZweiWeltenLehre und immanenter Sinn. Hans Kelsen als Neukantianer, in: R. Alexy

et al (ed.) Neukantianismus und Rechtsphilosophie (2002) 223251.

109 For more on the creation of classes within the legal system, see A. Somek, above n

78.

110 See R. Christensen H. Kudlich, Theorie richterlichen Begrndens (2001).

111 See Karl-Heinz Ladeur, Postmoderne Rechtstheorie. Selbstreferenz Selbstorganisation

Prozeduralisierung (1992).

112 See G. Gamm, Flucht aus der Kategorie. Die Positivierung des Unbestimmten als

Ausgang der Moderne (1994).

113 See, e.g., M. Albrow, The Global Age. State and Society Beyond Modernity (1996); M.

Van Creveld, The Rise and Decline of the State (1999).

114 See A. Somek, Gesetzesbindung als Problem der Demokratie, Journal fr

Rechtspolitik 6 (1998).

Stateless Law: Kelsens Conception and its Limits* The Iconoclast Knowing as Producing Deontologisation The Immanent Critique The Confusing Conclusion State Nominalism and Legal Essentialism The Meaning of the Identity Theory The Internal Asymmetry of Identity Theory Demystification What Kelsen Does Not Observe Reservations The Reality of the State According to Kelsen Radical Deontologisation Endnotes

Somekcover3.pdfStateless Law: Kelsens Conception and its Limits*