General Theory of Law and State

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General Theory of Law and State is divided into two parts: the first devoted to law, the second to the state. Together these topics constitute the most systematic and comprehensive exposition of Kelsen’s jurisprudence. The volume is not only a compendium of Kelsen’s lifework; it is also an extension of his theories to embrace the problems and institutions of English and American law as well as those of the Civil Law countries. Indeed, references to Continental European law are minimal compared with examples, scattered throughout the text, taken from the U.S. Constitution and several American court cases. This is more than a concession to American readers; it signifies that Kelsen’s legal theory is truly general in that it accounts for the Common Law as well as the Civil Law.

Transaction Introduction

xxi

Preface

xxxv

PART ONE: THE LAW

Nomostatics

The Concept of Law

(47)

Law and Justice

(12)

Human behavior as the object of rules

(1)

Scientific and political definition of law

(1)

The concept of law and the idea of justice

(1)

Justice as a subjective judgment of value

(2)

Natural law

(4)

The dualism of positive and natural law

(1)

Justice and peace

(1)

Justice and legality

(1)

The Criterion of Law (Law as a Specific Social Technique)

(14)

Direct and indirect motivation

(1)

Transcendental and socially organized sanctions

(1)

Punishment and reward

(1)

Law as a coercive order

(2)

Law, morality, religion

(1)

Monopolization of the use of force

(1)

Law and peace

(1)

Psychic compulsion

(1)

The motives of lawful behavior

(1)

Arguments against the definition of law as coercive order

(1)

Eugen Ehrlich's theory

(4)

The never-ending series of sanctions

(1)

Validity and Efficacy

(16)

The ``norm''

(1)

The law as a command, i.e., expression of a will

(2)

The ``will'' of the parties in a legal transaction

(1)

The ``will'' of the legislator

(1)

Customary law as command

(1)

The ``ought''

(2)

General and individual norms

(1)

Conditional and unconditional norms

(1)

Norm and act

(1)

Efficacy as conformity of the behavior to the norm

(1)

Behavior ``opposed'' to the norm

(1)

Efficacy as condition of validity

(1)

Sphere of validity of the norms

(2)

Retroactive laws and ignorantia juris

(1)

The Legal Norm

(5)

Legal norm and rule of law in a descriptive sense

(1)

Rule of law and law of nature

(2)

The legal norm as a standard of valuation

(3)

The Sanction

(1)

The Delict

(7)

``Mala in se'' and ``Mala prohibita''

(2)

The Delict as a Condition of the Sanction

(1)

The Delict as Behavior of the Individual against whom the Sanction is Directed

(2)

Identification of the Delinquent with the Members of his Group

(1)

Delict of Juristic Persons

(1)

The Legal Duty

(7)

Duty and Norm

(1)

The Duty and the ``Ought''

(1)

The Secondary Norm

(1)

Obeying and Applying the Legal Norm

(1)

Austin's Distinction between Primary and Secondary Duties

(3)

The Legal Responsibility

(10)

Culpability and Absolute Liability

(3)

Duty and Responsibility; Individual and Collective Responsibility

(3)

Austin's Concept of Duty

(4)

No distinction between duty (obligation) and responsibility

(1)

The legal duty no psychological bond

(1)

Duty as fear of sanction

(2)

The psychological concept of duty and analytical jurisprudence

(1)

The Legal Right

(15)

Right and Duty

(2)

Permission

(1)

The Legal Right in a Narrow Sense

(7)

Right more than the correlative of a duty

(1)

Law and right

(1)

The right as recognized will or protected interest

(2)

The right as legal possibility to put in motion the sanction

(2)

Right and representation

(1)

The Right as a Specific Legal Technique

(1)

Absolute and Relative Rights

(2)

The Right as Participation in the Creation of Law

(1)

Civil and Political Rights

(3)

Competence (Legal Capacity)

(1)

Imputation (Imputability)

(2)

The Legal Person

(17)

Substance and Quality

(1)

The Physical Person

(3)

Physical person and human being

(2)

Physical person: a juristic person

(1)

The Juristic Person

(14)

The corporation

(1)

Duties and rights of a juristic person as duties and rights of men

(1)

The by-laws of the corporation (order and community)

(1)

The organ of the community

(1)

The imputation to the order

(1)

The juristic person as personified order

(1)

Obligating and empowering of juristic persons

100

(1)

The concept of the juristic person as auxiliary concept

100

(1)

Duties and rights of a juristic person: collective duties and rights of men

101

(2)

The civil delict of a juristic person

103

(1)

The criminal delict of a juristic person

104

(3)

Juristic person and representation

107

(1)

Juristic person as real being (organism)

108

(1)

Corporation as ``body of men''

109

(1)

Nomodynamics

The Legal Order

110

(13)

The Unity of a Normative Order

110

(3)

The reason of validity: the basic norm

110

(2)

The static system of norms

112

(1)

The dynamic system of norms

112

(1)

The Law as a Dynamic System of Norms

113

(2)

The positivity of law

113

(1)

Customary and statutory law

114

(1)

The Basic Norm of a Legal Order

115

(7)

The basic norm and the constitution

115

(1)

The specific function of the basic norm

116

(1)

The principle of legitimacy

117

(1)

Change of the basic norm

118

(1)

The principle of effectiveness

118

(1)

Desuetudo

119

(1)

The ``ought'' and the ``is''

120

(1)

Law and power (right and might)

120

(1)

The principle of effectiveness as positive legal norm (International and national law)

121

(1)

Validity and efficacy

122

(1)

The Static and the Dynamic Concept of Law

122

(1)

The Hierarchy of the Norms

123

(39)

The Superior and the Inferior Norm

123

(1)

The Different Stages of the Legal Order

124

(12)

The constitution

124

(1)

Constitution in a material and a formal sense; determination of the creation of general norms

124

(1)

Determination of the content of general norms by the constitution

125

(1)

Custom as determined by the constitution

126

(2)

General norms enacted on the basis of the constitution; statutes, customary law

128

(1)

Substantive and adjective law

129

(1)

Determination of the law-applying organs by general norms

129

(1)

Ordinances (regulations)

130

(1)

The ``sources'' of law

131

(1)

Creation of law and application of law

132

(1)

Merely relative difference between law-creating and law-applying function

132

(1)

Determination of the law-creating function

133

(1)

Individual norms created on the basis of general norms

134

(1)

The judicial act as creation of an individual norm

134

(1)

The judicial act as a stage of the law-creating process

134

(1)

The ascertainment of the conditioning facts

135

(1)

The Legal Transaction (Juristic Act)

136

(7)

The legal transaction as law-creating and law-applying act

136

(1)

Private autonomy

136

(1)

The secondary norm as product of a legal transaction

137

(1)

Reparation

138

(2)

Legal transaction and delict

140

(1)

The contract

140

(1)

The will and its expression

140

(1)

Offer and acceptance

141

(1)

The norm created by the contract

141

(1)

One-sided and two-sided legal transactions

142

(1)

Nature of Constitutional Law

143

(1)

Relationship between the Judicial Act and the Pre-existent Norm Applied by the Judicial Act

144

(2)

Determination of the judicial act only by adjective law

144

(1)

Determination of the judicial act by substantive law

145

(1)

Discretion of the court (judge as legislator)

145

(1)

Gaps (Lacunae) of Law

146

(3)

The idea of ``gaps'': a fiction

146

(2)

The purpose of the fiction of gaps

148

(1)

General Norms created by Judicial Acts

149

(4)

Precedents

149

(1)

``All the law is judge-made law''

150

(1)

The doctrine of J. C. Gray

150

(1)

No judicial decision without pre-existing law

151

(1)

Only law can be ``source'' of law

152

(1)

Conflicts between Norms of Different Stages

153

(9)

Concordance or discordance between the judicial decision and the general norm to be applied by the decision

153

(2)

Concordance or discordance between statute and constitution (The unconstitutional statute)

155

(2)

Guarantees of the constitution

157

(1)

Abrogation of the ``unconstitutional'' statute

157

(1)

Personal responsibility of the organ

157

(1)

Res judicata (force of law)

158

(1)

Nullity and annullability

159

(2)

No contradiction between an inferior and a superior norm

161

(1)

Normative and Sociological Jurisprudence

162

(19)

Sociological Jurisprudence not the only Science of Law

162

(1)

Normative Jurisprudence as Empirical and Descriptive Science of Law

163

(2)

The Prediction of the Legal Function

165

(2)

T. H. Huxley's distinction between ``law of men'' and law of nature

165

(1)

O.W. Holmes' and B. N. Cardozo's concept of jurisprudence as prophecy

166

(1)

The Specific Meaning of a Juristic Statement

167

(1)

No Prediction of the Legislative Function

168

(1)

The Law not a system of Doctrines (Theorems)

168

(1)

The Difference between the Statements of a Normative and of a Sociological Jurisprudence

169

(2)

Sociological Elements in Austin's Analytical Jurisprudence

171

(1)

Predictability of the Legal Function and Efficacy of the Legal Order

172

(1)

Irrelevancy of Individual Circumstances

173

(1)

Sociology of Law and Sociology of Justice

174

(1)

Sociological Jurisprudence presupposes the Normative Concept of Law

175

(3)

Difference between the legal and the illegal act

175

(1)

Max Weber's definition of sociology of law

175

(1)

Legal and de facto authority

176

(2)

The Object of the Sociology of Law: Behavior determined by the Legal Order

178

(3)

PART TWO: THE STATE

The Law and the State

181

(26)

The State as a Real (Sociological) or Juristic Entity

181

(11)

The State as personification of the national legal order

181

(1)

The State as order and as community constituted by the order

182

(1)

The State as sociological unity

183

(1)

Social unity (body) constituted by interaction

183

(1)

Social unity (body) constituted by common will or interest

184

(1)

The State as organism

185

(1)

The State as domination

186

(2)

Juristic concept of State and sociology of State

188

(1)

Human behavior oriented to the legal order

188

(1)

Normative character of the State

189

(1)

The State as ``politically'' organized society (The State as power)

189

(2)

The problem of the State as a problem of imputation

191

(1)

The Organs of the State

192

(5)

The concept of the State-organ

192

(1)

The formal and the material concept of The State

193

(2)

The creation of the State-organ

195

(1)

The simple and the composite organ

195

(1)

Procedure

196

(1)

The State as Subject of Duties and Rights

197

(4)

The auto-obligation of the State

197

(2)

The duties of the State (The delict of the State)

199

(1)

The rights of the State

200

(1)

Rights against the State

201

(1)

Private and Public Law

201

(6)

The traditional theory: State and private persons

201

(1)

The State as subject of private law

202

(1)

Superiority and inferiority

203

(1)

Autonomy and heteronomy (private and administrative law)

204

(2)

Family law; international law

206

(1)

Public or private interest (Private and criminal law)

206

(1)

The Elements of the State

207

(62)

The Territory of the State

207

(11)

The territory of the State as the territorial sphere of validity of the national legal order

207

(1)

The limitation of the territorial sphere of validity of the national legal order by the international legal order

208

(2)

The territory of the State in a narrower and in a wider sense

210

(2)

The ``impenetrability'' of the State

212

(1)

The boundaries of the State territory (Changes in the territorial status)

213

(4)

The territory of the State a space of three dimensions

217

(1)

Relationship between the State and its territory

218

(1)

Time as an Element of the State

218

(15)

The temporal sphere of validity of the national legal order

218

(1)

Birth and death of the State

219

(1)

Limitation of the temporal sphere of validity of the national legal order by the international legal order

219

(1)

The identity of the State

219

(1)

Birth and death of the State as legal problems

220

(1)

Recognition

221

(1)

Recognition of a community as a State

221

(4)

De jure and De facto recognition

225

(1)

Recognition with retroactive force

226

(1)

Recognition by admission into the League of Nations

227

(1)

Recognition of governments

228

(1)

Recognition of insurgents as a belligerent Power

229

(1)

Succession of States

230

(1)

State Servitudes

231

(2)

The People of the State

233

(9)

The people of the State as the personal sphere of validity of the national legal order

233

(1)

Limitation of the personal sphere of validity of the national legal order by the international legal order

233

(1)

Exterritoriality; protection of aliens

234

(1)

Citizenship (Nationality)

234

(1)

Military service

234

(1)

Allegiance

235

(1)

Political rights

235

(1)

Expulsion

236

(1)

Extradition

237

(1)

Protection of citizens

237

(1)

Jurisdiction over citizens abroad

238

(1)

Acquisition and loss of citizenship

238

(2)

Nationality of juristic persons

240

(1)

Is citizenship a necessary institution?

241

(1)

The Competence of the State as the Material Sphere of Validity of the National Legal Order

242

(1)

Conflict of Laws

243

(5)

The so-called Fundamental Rights and Duties of the States

248

(7)

Natural-law doctrine applied to the relationship between States

248

(4)

The equality of the States

252

(3)

The Power of the State

255

(14)

The power of the State as the validity and efficacy of the national legal order

255

(1)

The powers or functions of the State: legislation and execution

255

(1)

The legislative power

256

(2)

The executive and judicial power

258

(1)

The constitution

258

(1)

The political concept of the constitution

258

(1)

Rigid and flexible constitutions

259

(1)

The content of the constitution

260

(1)

The preamble

260

(1)

Determination of the contents of future statutes

261

(1)

Determination of the administrative and judicial function

262

(1)

The ``unconstitutional'' law

262

(1)

Constitutional prohibitions

263

(3)

Bill of rights

266

(1)

Guarantees of the constitution

267

(2)

The Separation of Powers

269

(14)

The Concept of ``Separation of Powers''

269

(1)

Separation of the Legislative from the Executive Power

270

(2)

Priority of the so-called legislative organ

270

(1)

Legislative function of the chief of the executive department

270

(2)

Legislative function of the judiciary

272

(1)

Not Separation but Distribution of Powers

272

(1)

Separation of the Judicial from the Executive (Administrative) Power

273

(5)

Nature of the judicial function

273

(1)

Judicial function of the organs of the executive power (administration)

274

(1)

Independence of judges

275

(1)

The specific administrative function: the administrative act

275

(1)

Administration under the control of the judiciary

276

(1)

Close connection between the administrative and the judicial function

277

(1)

Administrative procedure

278

(1)

Coercive Acts of the Administrative Organs

278

(1)

Direct and Indirect Administration

279

(1)

Legal Control of Administration by Ordinary or by Administrative Courts

280

(1)

Control of Legislation by Courts

280

(1)

The Historical Role of the ``Separation of Powers''

281

(1)

Separation of Powers and Democracy

282

(1)

Forms of Government: Democracy and Autocracy

283

(20)

Classification of Constitutions

283

(1)

Monarchy and republic

283

(1)

Democracy and autocracy

284

(1)

Democracy

284

(16)

The idea of freedom

284

(1)

The metamorphosis of the idea of freedom

284

(1)

The principle of self-determination

285

(1)

The principle of majority

285

(1)

Self-determination and anarchy

285

(1)

Necessary restriction of liberty by the principle of majority

286

(1)

The idea of equality

287

(1)

The right of the minority

287

(1)

Democracy and liberalism

287

(1)

Democracy and compromise

288

(1)

Direct and indirect (representative) democracy

288

(1)

The fiction of representation

289

(3)

The electoral systems

292

(1)

The electoral body

292

(1)

The right of suffrage

293

(1)

Majority and proportional representation

294

(1)

The political party

294

(1)

Electorate and representative body

295

(1)

The idea of proportional representation

296

(1)

Functional representation

297

(1)

Democracy of legislation

298

(1)

Unicameral and bicameral system

298

(1)

Popular initiative and referendum

298

(1)

Democracy of execution

299

(1)

Democracy and legality of execution

299

(1)

Autocracy

300

(3)

The absolute monarchy

300

(1)

The constitutional monarchy

300

(1)

The presidential republic and the republic with cabinet government

301

(1)

The party dictatorship

301

(1)

The one-party State (Bolshevism and Fascism)

301

(1)

Complete suppression of individual freedom

302

(1)

Irrelevancy of constitutional institutions

302

(1)

The totalitarian State

303

(1)

Forms of Organization: Centralization and Decentralization

303

(25)

Centralization and Decentralization as Legal Concepts

303

(1)

The Static Concept of Centralization and Decentralization

304

(4)

The juristic concept of territorial division

304

(1)

Principles of organization based on territorial or on personal status

305

(1)

Total and partial centralization and decentralization

306

(1)

Criteria of the degrees of centralization and decentralization

306

(1)

Method of restricting the territorial sphere of validity

307

(1)

The Dynamic Concept of Centralization and Decentralization

308

(8)

Centralized and decentralized creation of norms

308

(2)

Form of government and form of organization

310

(1)

Democracy and decentralization

311

(2)

Perfect and imperfect centralization and decentralization

313

(1)

Administrative decentralization

313

(1)

Decentralization by local autonomy

314

(2)

Decentralization by autonomous provinces

316

(1)

Federal State and Confederacy of States

316

(9)

Centralization of legislation

316

(1)

Federal State

316

(3)

Confederacy of States

319

(1)

Centralization of execution

320

(1)

Federal State

320

(1)

Confederacy of States

320

(1)

Distribution of competence in a federal State and a confederacy of States

321

(1)

Citizenship

322

(1)

Direct and indirect obligating and authorizing

322

(1)

Internationalization and centralization

323

(1)

Transformation of a unitary State into a federal State or into a confederacy of States

324

(1)

The international legal community

325

(3)

No absolute borderline between national and international law

325

(1)

National law as a relatively centralized legal order

325

(1)

The decentralization of international law

325

(1)

Static decentralization

326

(1)

Dynamic decentralization

327

(1)

Relative centralization by particular international law

327

(1)

National and International Law

328

(119)

The Legal Character of International Law

328

(13)

Delict and sanction in international law

328

(2)

Reprisals and war

330

(1)

The two interpretations of war

331

(1)

The doctrine of bellum justum

331

(1)

International public opinion

331

(1)

The idea of bellum justum in positive international law

332

(2)

The idea of bellum justum in primitive society

334

(1)

The bellum justum theory in Antiquity, the Middle Ages, and modern times

335

(1)

Arguments against the bellum justum theory

336

(2)

The primitive legal order

338

(1)

International law as primitive law

339

(2)

International Law and State

341

(22)

The subjects of international law: indirect obligating and authorizing of individuals by international law

341

(2)

The norms of international law incomplete norms

343

(1)

Direct obligating and authorizing of individuals by international law

343

(1)

Individuals as direct subjects of international duties

343

(4)

Individuals as direct subjects of international rights

347

(1)

National law ``delegated'' by international law

348

(1)

The essential function of international law

349

(1)

The determination by the international legal order of the sphere of validity of the national legal order

350

(1)

The State as organ of the international legal order (The creation of international law)

351

(4)

The international responsibility of the State

355

(1)

Collective responsibility of the State and individual responsibility of individuals as subjects of international law

355

(2)

Duty of reparation

357

(1)

So-called ``indirect'' or ``vicarious'' responsibility

358

(3)

Absolute responsibility (liability) of the State

361

(2)

The Unity of National and International Law (Monism and Pluralism)

363

(28)

The monistic and the pluralistic theory

363

(1)

The subject-matter of national and international law

364

(1)

The ``source'' of national and international law

365

(1)

The reason of validity of national and international law

366

(1)

The reason of validity of the national legal order determined by international law

366

(2)

Revolution and Coup d'Etat as law-creating facts according to international law

368

(1)

The basic norm of international law

369

(1)

The historical and the logico-juristic view

370

(1)

Conflicts between national and international law

371

(2)

The unity of national and international law as a postulate of legal theory

373

(1)

The possible relationship between two systems of norms

373

(1)

The relationship between positive law and morality

374

(1)

Collision of duties

375

(1)

Normativity and factuality

375

(1)

Primacy of national law, or primacy of international law

376

(1)

National and international personality of the State

376

(2)

Transformation of international into national law

378

(1)

Only one national legal order as a system of valid norms

379

(1)

The recognition of international law

380

(2)

The primacy of national law

382

(1)

Sovereignty

383

(1)

Sovereignty as a quality of a normative order

383

(2)

Sovereignty as exclusive quality of only one order

385

(1)

The philosophical and juristic significance of the two monistic hypotheses

386

(1)

Subjectivism and objectivism

386

(1)

Wrong uses of the two hypotheses

387

(1)

The choice between the two hypotheses

388

(3)

APPENDIX NATURAL LAW DOCTRINE AND LEGAL POSITIVISM

The Idea of Natural Law and the Essence of Positive Law

391

(7)

Social Theory and the Problem of Justice

391

(1)

The Principle of Validity in Natural and Positive Law; the Factor of Coercion; Law and State

392

(1)

The ``Ought'': Absolute and Relative Validity

393

(2)

The Basic Norm of Positive Law

395

(1)

The Immutability of Natural Law

396

(1)

The Limitation of the Natural-Law Idea

397

(1)

Natural and Positive Law as Systems of Norms

398

(9)

The Unity of Systems of Norms

398

(1)

The Static Principle of Natural Law and the Dynamic Principle of Positive Law

399

(2)

The Limitation of Positivism

401

(1)

Positive Law as a Meaningful Order

401

(3)

The Subjective and Objective Meaning of Legal Material

404

(2)

The Methodological Importance of the Basic Norm in Positive Law

406

(1)

The Relation of Natural to Positive Law. The Political Significance of Natural-Law Theory

407

(12)

The Exclusive Validity of a System of Norms: the Logical Principle of Contradiction in the Sphere of Normative Validity

407

(1)

The Norm as an ``Ought'' and as a Psychological Fact: Collision of Duties and Contradiction of Norms

408

(2)

Law and Morals: the Postulate of the Unity of System

410

(1)

The Logical Impossibility of the Coexistence of Positive and Natural Law

411

(1)

The Impossibility of a Relationship of Delegation between Natural and Positive Law

412

(1)

Positive Law as a Mere Fact in its Relation to Natural Law as a Norm

413

(1)

The Relation of Natural to Positive Law in the Historical Natural-Law Doctrine

414

(2)

Natural Law as a Justification of Positive Law

416

(1)

The Supposedly Revolutionary Character of Natural-Law Doctrine

417

(2)

The Epistemological (Metaphysical) and Psychological Foundations

419

(28)

The Metaphysical Dualism

419

(1)

The duplication of the object of cognition in the sphere of natural reality; the image theory

419

(1)

The duplication of the object of cognition in the realm of values

420

(2)

The theory of nature and law among primitives

422

(1)

Metaphysical-religious dualism

423

(2)

Pessimistic dualism: personality type and metaphysical attitude

425

(1)

Pessimistic dualism: its social theory; the revolutionary position

426

(1)

Optimistic dualism: personality type and metaphysical attitude

427

(1)

Optimistic dualism: its political and legal philosophy; conservatism

428

(2)

The compromise type of metaphysical dualism

430

(1)

The compromise type: personality and metaphysics

430

(2)

The compromise type: its legal-political attitude. Compromise and evolutionary position

432

(1)

The Scientific-Critical Philosophy

433

(1)

The end of metaphysical dualism

433

(1)

The epistemology of the scientific outlook; its psychological foundation

434

(1)

Legal positivism; law and power

435

(2)

The transcendental-logical natural-law doctrine. The political indifference of legal positivism

437

(2)

The ideal of justice becomes a logical pattern

439

(2)

The method of the ideal type

441

(2)

The realization of ideal types in intellectual history

443

(1)

Kant's critical idealism and legal positivism

444

(3)

List of Publications

447

(20)

Index

467

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General Theory of Law and State

Summary

Table of Contents

Supplemental Materials

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