The Pure Theory of Law

First published Mon Nov 18, 2002; substantive revision Mon Jan 4, 2016
The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (1881–1973) (see the bibliographical note). Kelsen began his long
career as a legal theorist at the beginning of the 20th century. The traditional legal
philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political
ideology and moralizing on the one hand, or with attempts to reduce the law to natural or
social sciences, on the other hand. He found both of these reductionist endeavors seriously
flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of
any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of
law because it aims at cognition focused on the law alone” and this purity serves as its “basic
methodological principle” (PT1, 7).

 1. The Basic Norm

 2. Relativism and Reduction
 3. The Normativity of Law
 Bibliography
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 Other Internet Resources
 Related Entries

1. The Basic Norm

The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of
legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal
science”, to other domains. The law, Kelsen maintained, is basically a scheme of
interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-
normative meaning to certain actions and events in the world (PT1, 10). Suppose, for
example, that a new law is enacted by the California legislature. How is it done? Presumably,
some people gather in a hall, debate the issue, eventually raise their hands in response to the
question of whether they approve a certain document or not, count the number of people who
say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and events
described here are not the law. To say that the description is of the enactment of a new law is
to interpret these actions and events in a certain way. But then, of course, the question is why
certain acts or events have such a legal meaning and others don’t?
Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-
normative meaning by another legal norm that confers this normative meaning on it. An act
can create or modify the law if it is created in accordance with another, “higher” legal norm
that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid
if and only if it has been created in accord with yet another, “higher” norm that authorizes its
enactment in that way. In other words: it is the law in the United States that the California
legislature can enact certain types of laws. But what makes this the law? The California
Constitution confers this power on the state legislature to enact laws within certain
prescribed boundaries of content and jurisdiction. But then what makes the California
Constitution legally valid? The answer is that the legal validity of the Constitution of
California derives from an authorization granted by the US Constitution. What makes the US
Constitution legally valid? Surely, not the fact that the US Constitution proclaims itself to be
“the supreme law of the land”. Any document can say that, but only the particular document
of the US Constitution is actually the supreme law in the United States.
The problem is that here the chain of authorization comes to an end: There isn’t a higher
legal norm that authorizes the enactment of the (original) US Constitution. At this point,
Kelsen famously argued, one must presuppose the legal validity of the Constitution. At some
stage, in every legal system, we get to an authorizing norm that has not been authorized by
any other legal norm, and thus it has to be presupposed to be legally valid. The normative
content of this presupposition is what Kelsen has called the basic norm. The basic norm is
the content of the presupposition of the legal validity of the (first, historical) constitution of
the relevant legal system (GT, 110–111).
As Kelsen saw it, there is simply no alternative. More precisely, any alternative would
violate David Hume’s injunction against deriving an “ought” from an “is”. Hume famously
argued that any practical argument that concludes with some prescriptive statement, a
statement of the kind that one ought to do this or that, would have to contain at least one
prescriptive statement in its premises. If all the premises of an argument are descriptive,
telling us what this or that is the case, then there is no prescriptive conclusion that can
logically follow. Kelsen took this argument very seriously. He observed that the actions and
events that constitute, say, the enactment of a law, are all within the sphere of what “is” the
case, they are all within the sphere of actions and events that take place in the world. The
law, or legal norms, are within the sphere of “ought”, they are norms that purport to guide
conduct. Thus, to get an “ought” type of conclusion from a set of “is” premises, one must
point to some “ought” premise in the background, an “ought” that confers the normative
meaning on the relevant type of “is”. Since the actual, legal, chain of validity comes to an
end, we inevitably reach a point where the “ought” has to be presupposed, and this is the
presupposition of the basic norm.
The idea of the basic norm serves three theoretical functions in Kelsen’s theory of law: The
first is to ground a non-reductive explanation of legal validity. The second function is to
ground a non-reductive explanation of the normativity of law. The third function is to explain
the systematic nature of legal norms. These three issues are not un-related.
Kelsen rightly noticed that legal norms necessarily come in systems. There are no free-
floating legal norms. If, for example, somebody suggests that “the law requires a will to be
attested by two witnesses”, one should always wonder which legal system is talked about; is
it US law, Canadian law, German law, or the law in some other legal system? Furthermore,
legal systems are themselves organized in a hierarchical structure, manifesting a great deal of
complexity but also a certain systematic unity. We talk about Canadian law, or German law,
etc., not only because these are separate countries in which there is law. They are also
separate legal systems, manifesting a certain cohesion and unity. This systematic unity
Kelsen meant to capture by the following two postulates:

1. Every two norms that ultimately derive their validity from one basic norm belong to
the same legal system.
2. All legal norms of a given legal system ultimately derive their validity from one basic
norm.
Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that
they are both inaccurate, at best. Two norms can derive their validity from the same basic
norm, but fail to belong to the same system as, for example, in case of an orderly secession
whereby a new legal system is created by the legal authorization of another. Nor is it
necessarily true that all the legally valid norms of a given system derive their validity from
the same basic norm (Raz 1979, 127–129).
Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his
main insight remains true, and quite important. It is true that law is essentially systematic,
and it is also true that the idea of legal validity and law’s systematic nature are very closely
linked. Norms are legally valid within a given system, they have to form part of a system of
norms that is in force in a given place and time.
This last point brings us to another observation that is central to Kelsen’s theory, about the
relations between legal validity and, what he called, “efficacy”. The latter is a term of art in
Kelsen’s writings: A norm is efficacious if it is actually (generally) followed by the relevant
population. Thus, “a norm is considered to be legally valid”, Kelsen wrote, “on the condition
that it belongs to a system of norms, to an order which, on the whole, is efficacious” (GT,
42). So the relationship here is this: efficacy is not a condition of legal validity of individual
norms. Any given norm can be legally valid even if nobody follows it. (e.g. think about a
new law, just enacted; it is legally valid even if nobody has yet had an opportunity to comply
with it.) However, a norm can only be legally valid if it belongs to a system, a legal order,
that is by and large actually practiced by a certain population. And thus the idea of legal
validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system
exists, as it were, only as a social reality, a reality that consists in the fact that people actually
follow certain norms.
What about the basic norm, is efficacy a condition of its validity? One might have thought
that Kelsen would have opted for a negative answer here. After all, the basic norm is a
presupposition that is logically required to render the validity of law intelligible. This would
seem to be the whole point of an anti-reductionist explanation of legal validity: since we
cannot derive an “ought” from an “is”, some “ought” must be presupposed in the background
that would enable us to interpret certain acts or events as having legal significance. Kelsen,
however, quite explicitly admits that efficacy is a condition of the validity of the basic norm:
A basic norm is legally valid if and only if it is actually followed in a given population. In
fact, as we shall see below, Kelsen had no choice here. And this is precisely why at least one
crucial aspect of his anti-reductionism becomes questionable.

2. Relativism and Reduction

Common wisdom has it that Kelsen’s argument for the presupposition of the basic norm
takes the form of a Kantian transcendental argument. The structure is as follows:

1. P is possible only if Q

2. P is possible (or, possibly P)
3. Therefore, Q.
In Kelsen’s argument, P stands for the fact that legal norms are “ought” statements , and Q is
the presupposition of the basic norm. In other words, the necessary presupposition of the
basic norm is derived from the possibility conditions for ascribing legal significance to
actions and events. In order to interpret an action as one of creating or modifying the law, it
is necessary to show that the relevant legal significance of the act/event is conferred on it by
some other legal norm. At some point, as we have noted, we necessarily run out of legal
norms that confer the relevant validity on law creating acts, and at that point the legal
validity has to be presupposed. The content of this presupposition is the basic norm.
It would be a mistake, however, to look for an explanation of Kelsen’s argument in the logic
of Kant’s transcendental argument. (Kelsen himself seems to have changed his views about
this over the years; he may have started with a kind of neo-Kantian perspective one can
discern in PT1, and gradually shifted to a Humean version of his main argument, which is
quite evident in GT. However, this is a very controversial issue; for a different view, see
Paulson 2013 and Green 2016.) Kant employed a transcendental argument to establish the
necessary presuppositions of some categories and modes of perception that are essential for
rational cognition, or so he thought. They form deep, universal, and necessary features of
human cognition. Suffice it to recall that it was Hume’s skepticism about knowledge that
Kant strove to answer by his transcendental argument. Kelsen, however, remains much
closer to Hume’s skeptical views than to Kant’s rationalism. In particular, Kelsen was very
skeptical of any objective grounding of morality, Kant’s moral theory included. Kelsen’s
view of morality was relativist all the way down. (More on this, below). Second, and not
unrelated, as we shall see, Kelsen has explicitly rejected the idea that the basic norm (in law,
or of any other normative domain) is something like a necessary feature or category of
human cognition. The presupposition of a basic norm is optional. One does not have to
accept the normativity of law; anarchism, as a rejection of law’s normative validity is
certainly an option, Kelsen maintained. The basic norm is presupposed only by those who
accept the “ought”, that is, the normative validity, of the law. But one is not rationally
compelled to have this attitude:
The Pure Theory describes the positive law as an objectively valid order and states that this
interpretation is possible only under the condition that a basic norm is presupposed…. The
Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents
the objective validity of positive law only as conditional—namely conditioned by the
presupposed basic norm. (PT2, 217–218)
A comparison to religion, that Kelsen himself offered, might be helpful here. The normative
structure of religion is very similar to that of law. It has the same logic: religious beliefs
about what one ought to do ultimately derive from one’s beliefs about God’s commands.
God’s commands, however, would only have normative validity for those who presuppose
the basic norm of their respective religion, namely, that one ought to obey God’s commands.
Thus the normativity of religion, like that of the law, rests on the presupposition of its basic
norm. But in both cases, as, in fact, with any other normative system, the presupposition of
the basic norm is logically required only of those who regard the relevant norms as reasons
for their actions. Thus, whether you actually presuppose the relevant basic norm is a matter
of choice, it is an ideological option, as it were, not something that is dictated by Reason.
Similarly, the normativity of law, presupposed by its basic norm, is optional: “An anarchist,
for instance, who denied the validity of the hypothetical basic norm of positive law…. will
view its positive regulation of human relationships… as mere power relations” (GT, 413).
Relativism, however, comes with a price. Consider this question: What is the content of the
basic norm that one needs to presuppose in order to render positive law intelligible as a
normative legal order? The simple answer is that what one presupposes here is precisely the
normative validity of positive law, namely, the law that is actually practiced by a certain
population. The validity of the basic norm, as we noted briefly earlier, is conditional on its
“efficacy”. The content of the basic norm of any given legal system is determined by the
actual practices that prevail in the relevant community. As Kelsen himself repeatedly argued,
a successful revolution brings about a radical change in the content of the basic norm.
Suppose, for example, that in a given legal system the basic norm is that the constitution
enacted by Rex One is binding. At a certain point, a coup d’etat takes place and a republican
government is successfully installed. At this point, Kelsen admits, ‘one presupposes a new
basic norm, no longer the basic norm delegating law making authority to the monarch, but a
basic norm delegating authority to the revolutionary government’ (PT1, 59).
Has Kelsen just violated his own adherence to Hume’s injunction against deriving “ought”
from an “is” here? One gets the clear impression that Kelsen was aware of a serious
difficulty in his position. In both editions of the Pure Theory of Law, Kelsen toys with the
idea that perhaps changes in the basic norms of municipal legal systems legally derive from
the basic norm of public international law. It is a basic principle of international law that
state sovereignty is determined by actual control over a territory/population (PT1 61–62,
though in PT2, 214–215, the idea is presented with greater hesitation; notably, some
commentators argue that Kelsen took the idea of a universal legal order much more seriously
than suggested here—see Green 2016). But this led Kelsen to the rather uncomfortable
conclusion that there is only one basic norm in the entire world, namely, the basic norm of
public international law. Be this as it may, the main worry lies elsewhere. The worry stems
from the fact that it is very difficult, if not impossible, to maintain both a profound relativist
and an anti-reductionist position with respect to a given normative domain. If you hold the
view that the validity of a type of norms is entirely relative to a certain vantage point—in
other words, if what is involved here is only the actual conduct, beliefs/presuppositions and
attitudes of people—it becomes very difficult to detach the explanation of that normative
validity from the facts that constitute the relevant point of view (namely, the facts about
people’s actions, beliefs, attitudes, etc). This is basically what was meant earlier by the
comment that Kelsen had no option but to admit that the validity of the basic norm is
conditional on its efficacy. The normative relativism which is inherent in Kelsen’s
conception forces him to ground the content of the basic norm in the social facts that
constitute its content, namely, the facts about actions, beliefs, and attitudes actually
entertained by the population in question. And this makes it very questionable that
reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to
provide a reductive explanation of the concept of legal validity in terms of some set of social
facts, the facts that constitute the content of any given basic norm. (Which is precisely the
kind of reduction H.L.A. Hart later offered in his account of the Rules of Recognition as
social rules [see Hart 1961, at p. 105, where Hart alludes to the difference between his
conception of the rules of recognition and Kelsen’s idea of the basic norm.])
Kelsen’s problem here is not due to the fact that he was a relativist with respect to every
normative system, like morality, religion etc.; it is not the scope of his relativism that is
relevant to the question of reduction. The problem stems from the fact that Kelsen was quite
right about the law. Legal validity is essentially relative to the social facts that constitute the
content of the basic norm in each and every legal order. Notice that legal validity is always
relative to a time and place. A law enacted by the California legislature only applies within
the boundaries of the state of California, and it applies during a certain period of time, after
its enactment and until a time when it is modified or repealed. And we can see why: because
legal validity is determined by the content of the basic norm that is actually followed in a
given society. The laws in UK, for example, are different from those in the US, because
people (mostly judges and other officials) actually follow different rules, or basic norms, in
Kelsen’s terminology, about what counts as law in their respective jurisdictions. Once
Kelsen admits, as he does, that the content of a basic norm is fully determined by practice, it
becomes very difficult to understand how the explication of legal validity he offers is non-
reductive.

3. The Normativity of Law

Let us now see how Kelsen thought that the basic norm helps to explain the sense in which
law is a normative domain and what this normativity consists in. The first and crucial point
to realize is that for Kelsen the idea of normativity is tantamount to a genuine “ought”, as it
were; it is a justified demand on practical deliberation. A certain content is regarded as
normative by an agent if and only if the agent regards that content as a valid reason for
action. As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular
respect; both assume that the normativity of law can only be explained as one would explain
the normativity of morality, or religion for that matter, namely, in terms of valid reasons for
action (Raz 1979, 134–137; but cf. Paulson 2012). But then, the problem for Kelsen is how
to explain the difference between the normativity of law and that of morality; if legal “ought”
is a genuine “ought”, what makes a legal obligation distinct from a moral one? Kelsen’s
answer is that the relevant “ought” is always relative to a given point of view. Each and
every type of “ought”, be it religious, moral or legal, must presuppose a certain point of
view, a point of view which is constituted by the basic norm of the relevant normative
system.
In other words, Kelsen’s conception of legal normativity turns out to be a form of Natural
Law completely relativized to a certain point of view. However, in Kelsen’s theory the
relevant point of view is distinctly a legal one, not some general conception of morality or
Reason. That these two basic norms, or points of view, can come apart, is nicely
demonstrated by Kelsen’s comment that “even an anarchist, if he were a professor of law,
could describe positive law as a system of valid norms, without having to approve of this
law” (PT2 218n). The anarchist does not endorse the legal point of view as one that reflects
her own views about what is right and wrong. Anarchism is understood here precisely as a
rejection of the normative validity of law; however, even the anarchist can make an argument
about what the law in this or that context requires; and when she makes such an argument,
she must presuppose the legal point of view, she must argue as if she endorses the basic
norm of the relevant legal system. Joseph Raz has called these kinds of statements “detached
normative statements”; the anarchist argues as if she endorses the basic norm, without
actually endorsing it. Another example that Raz gave is this: suppose that at Catholic priest is
an expert in Jewish Law; the priest can make various interpretative arguments about what
Jewish law really requires in this or that context. In such a case, the priest must argue as if he
endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not really
endorse it, it does not reflect his own views about what is right and wrong (Raz 1979, 153–
157).
So here is what emerges so far: the concept of normativity, the sense in which normative
content is related to reasons for action, is the same across all normative domains. To regard
something as normative is to regard it as justified, as a warranted requirement on practical
deliberation. However, the difference resides in the difference in points of view. Each basic
norm determines, as it were, a certain point of view. So it turns out that normativity (contra
Kant) always consists of conditional imperatives: if, and only if, one endorses a certain
normative point of view, determined by its basic norm, then the norms that follow from it are
reason giving, so to speak. This enables Kelsen to maintain the same understanding of the
nature of normativity as Natural Law’s conception, namely, normativity qua reasons for
action, without having to conflate the normativity of morality with that of law. In other
words, the difference between legal normativity and, say, moral normativity, is not a
difference in normativity (viz, about the nature of normativity, per se), but only in the
relevant vantage point that is determined by their different basic norms. What makes legal
normativity unique is the uniqueness of its point of view, the legal point of view, as it were.
We can set aside the difficulties that such a view raises with respect to morality. Obviously,
many philosophers would reject Kelsen’s view that moral reasons for action only apply to
those who choose to endorse morality’s basic norm (whatever it may be). Even if Kelsen is
quite wrong about this conditional nature of moral imperatives, he may be right about the
law. What remains questionable, however, is whether Kelsen succeeds in providing a non-
reductive explanation of legal normativity, given the fact that his account of legal validity
turned out to be reductive after all. The trouble here is not simply the relativity to a point of
view; the trouble resides in Kelsen’s failure to ground the choice of the relevant point of
view in anything like Reason or reasons of any kind. By deliberately avoiding any
explanation of what it is that might ground an agent’s choice of endorsing the legal point of
view, or any given basic norm, Kelsen left the most pressing questions about the normativity
of law unanswered. Instead of providing an explanation of what makes the presupposition of
the legal point of view rational, or what makes it rational to regard the requirements of law as
binding requirements, Kelsen invites us to stop asking.