Empowerment: Hans Kelsen and the radical theory of legal norms

Abstract

One of the main tasks that Hans Kelsen sets for himself in his first major treatise, Hauptprobleme der Staatsrechtslehre (1911), is to determine the “ideal linguistic form” of the legal norm. In the first of the sections that follow, I offer a statement of the Stufenbau doctrine, followed by a brief examination of Kelsen’s introduction of constitutional norms. In section 2, I turn to the pivotal development of the mid-1930s, Kelsen’s introduction of the sanction-norm as an empowering norm. I turn, in section 3, to one of the factors that led Kelsen, in the 1950s, to take some details of norm theory more seriously than he had in the past, leading to his development of a system of deontic norms alongside the empowering norms. In this connection a telling factor is the influence on Kelsen stemming from the philosopher and logician Georg Henrik von Wright. Finally, in section 4, I anticipate – without offering a full statement – further developments in Kelsen’s work on norm theory during the 1950s. Kelsen sometimes refers to the sanction-norm, addressed to the legal official, as the primary norm. By contrast, the imperative, addressed to the legal subject, is the so-called secondary norm. The secondary norm is “superfluous”, for it is traceable back to, and can be restated in terms of, the primary norm. More generally, my effort is to arrive at a fairly full statement of the developments in Kelsen’s norm theory up to and including this remarkable innovation of the late 1930s, coming at the midpoint of his classical period.