Hans Kelsen (1881-1973) was an important figure in early 20th century thinking about law on the European continent. (Among other things, he was the author of the constitution used by Austria when it became a democracy after WWI.) His importance for our purposes is two-fold: he represents a sophisticated form of legal positivism that influenced H. L. A. Hart (who we will read next), and he represents a sort philosophical position that some German thinkers reacted against in the wake of WWII (Hart will discusses this). Kelsen came to the United States in 1940 (he’d lived in Switzerland since the rise of the Nazis), and the article you will read seems designed to introduce his ideas to an English-speaking audience.

Kelsen’s discussion is organized around critiques of the views of others. Section I is devoted to natural law theory, section II to legal realism (especially in the form it took in the 1930s), and the rest of the paper addresses a number of different aspects of Austin’s position. Our focus will be less on these critiques than on the aspects of Kelsen’s position that he introduces in the course of them. The issues he addresses in section I, although important, are more relevant to the foundations of ethics than to questions about the nature of law, so we will give little attention to this section after the third paragraph. We will also save the final section of the paper until we look at the idea of international law at the end of the course.

Among the many ideas that Kelsen presents in the course of sections II-VIII, there are three that we will concentrate on:

• The relation between legal validity and efficacy. The difference between these two ideas is at the heart of Kelsen’s criticism of “sociological jurisprudence” in section II. But Kelsen also asserts a certain relation between legal validity and efficacy—what is this relation? (If “delict,” which first appears on p. 50, is not a familiar term, turn to Kelsen’s account of it on p. 58.)

• The nature of legal norms. This is developed in sections III-VI and especially in section IV. But notice already in section II the schema “if one individual behaves in a certain manner, another individual should behave in a given way” (p. 51), and compare it to the two examples provided at the end of section IV (“If one steals ...,” p. 59).

• The dynamic theory of law. This is described in section VII and some of its implications are developed in section VIII. Think through the example of giving the reason for validity of a judicial decision that Kelsen sketches on p.63, and think about the idea of a “basic norm” that he introduces at the end of the example.