Hans Kelsen's Pure Theory of Law Ch.1

[Music] hello welcome to the undisciplined podcast reading series there's a introductory video explaining everything that this series is about why we're doing it which books we're going to read how it's structured so now this is the first substantive episode first release of Hans Carlson's a pure theory of Lord chapter one we're going to do a video for each chapter this is the first one the chapter is called law in nature so what the idea is is that I'll discuss slowly what is going on in this chapter my reading of it which I think is perhaps

a little bit different an emphasis from the standard reading that you probably got in your undergraduate Philosophy of Law course but yes why a pure theory of law this is really the book that stands as the kind of monument in my opinion of the positivist movement in legal Theory it's a work that if we talk about modern or 20th century legal philosophy I think we cannot get around this one we have to go through it it's also in our series chronologically the first one and I think that's why we do it first is so that

it we can see how it influenced the books that came subsequently the book a pure theory of law the first edition came out in German in 1934 but in 1960 Carlson released a much more expanded much revised much more thorough version which was released seven years later 1967 in English translation by Max Knight and this is the version that we're reading here so this chapter Carlson Lays down a lot of the groundwork a lot of definitional work being done a lot of distinctions being drawn and some of them kept some of them discarded kind of

the things you would expect the first chapter to have going forward into the rest of the book he gives us justification for his choices his methodological choices that he makes so the title of the book already gives away a big pot of Carlson's idea namely a pure theory of law what is a pure Theory imply what is Purity in this sense so calcin has a problem with the prior study of legal Theory in that he says law is often studied through the lens of other disciplines at least when we're doing Theory building he names politics

sociology economy and he says that's all good and well and these fields have something useful to say and that they're our insights to be gained from it but a pure legal Theory cannot get mixed up with the methodologies of other disciplines so in order to avoid methodological confusion a pure theory of law should use legal methods legal reasoning not reasoning from other disciplines in order to arrive at its conclusions this is also why he says in the very first sentence he says this is a positive theory of law so a positive theory of law means

that it uses legal methods and the object of the study what this methodology is applied to is law law is our object so what does that mean Carlson says that what we're studying in the broader sense are Acts and he distinguishes immediately between two different kinds of Acts he says acts that can be perceived by the senses the normal he calls these subjective acts these always human acts by the way not the non-human or the natural world laws strictly a human or social endeavor so we have acts subjective perceivable by the senses and then on

the other hand we have objective legal Acts these two can overlap of course but where subjective acts are from the position from the observing position of perhaps a single person object of legal Acts or acts that are observed from the point of view of the legal system and legal meaning is projected and received onto those Acts so this is what he places as the fundamental object of a pure theory of law which begs the question how do we know the difference between a subjective act and an object of legal Act he says that we arrive

at this answer through interpretation fair enough but what do we interpret through we need a lens when we're observing and interpreting Carlson's answer to that is that we interpret acts through norms and Norms this is the key word for him now again this begs another question what is a norm a norm is act or behavior which is commanded permitted or authorized and he quickly admits that Society is full of commands not just legal normative commands we're always commanding in in every day so he juxtaposes a legal command or a legal Norm with the command of

a gangster I like to picture a high woman who stops you on the highway and says your money or your life which is a form of Command right an everyday kind of command why is that not a legal Act why does that contravene the law and it's not a legal command he he puts this in opposition to the income tax collector who also comes to you and says your money or or something else imprisonment or whatever what distinguishes these two Carlson says that the gangster does not have a norm behind him the government tax collector

has a norm behind him so it's the norm that distinguishes these commands so Norms often command but not all commands are norms so how do Norms come about one of the ways which Carlson provides us is a very traditional account of norms and that is namely through custom so we know what customers so two persons or two groups or communities act towards each other in a certain way and through the action and through their mental exercise enormous created an expectation and enormous created even after the original people involved in this process have passed away we

see the norm still existing so Norms that emerge this way have an independent life or existence outside of the individuals that make them you know we could say it's not pure contract but something bigger than that something more permanent these kind of norms but how do we recognize Norm what that's how it comes about but how do we measure the normless or Norm worthiness of something so Carlson gives quite a few requirements of what a norm should have he calls this the effectivity of norms is one sense of that and how do we know that

a norm is effective he gives at least two reasons he says firstly Norms are applied by legal organs and that it is also generally obeyed by subjects to that legal system laws can be personally valid they can be materially valid materially being not applicable to persons but applicable within a sphere of human activity such as politics economy [Music] Etc Norms can also be valid in a limited sense or unlimited sense uh you know for all time and for everyone or in a limited time for a limited amount of people or even though or even just

one person so quickly the idea of values come up in the chapter so in applying Norms you know a decision has to be made Carlson talks here about values and he says the only value that we can use if we want to approach law and Norms in a scientific or positivistic or pure way is the negative and positive value attached to non-compliance and compliance of a norm so those are the only values that a real scientific lawyer should concern himself with has a norm been followed that's a plus has a norm not been followed that's

a negative these are the only values that we're capable of judging norms and laws so in this sense the values of the legal system are not inherent but they're completely arbitrary and they are projected from outside of the legal system right so we cannot say legally speaking whether a certain law is of high or low value this has to come from outside all the legal system can say is the law has been complied with or it's not been complied with this is the only positive and negative values known from within the legal system this also

has important implications for legal judgment let's say the judge in a court right he's not projecting his own values hopefully we know that's a problematic statement ideally speaking or scientifically speaking if you like what does a judge do he only at the end of the day even after hearing arguments and saying that there are different interpretations of the law he only has to decide has a norm been complied with or not and if it's been complied with it's fine not then there's sanction that follows punishment that follows so this is important because it means that

this decision this value-free value of the legal system compliance non-compliance it's a simple factual question it's not about good or bad or good or evil or right or wrong it's simply judgment legal judgment is a conclusion that can be reached rationally through the application of a intellectual process in this sense judgments are neutral we should all be able to agree ideally on what a judge decides because we just refer back to the law system to the Norms that's all whether it's good or bad is a different topic it's not a top it's a topic for

ethicists not for lawyers so what this also means is is that law is a social order it's an order because it structures human behavior but it's social because it's it's completely socially constructed in the sense think about it if we don't have values referencing outside of the legal system it means it's a social order humans made all of this morals religions these also qualify as social orders we can distinguish this from natural orders such as the example that Carlson uses is logic logic has Norms there are certain things that are logical and true and logically

false this does not originate or emerge strictly from the human mind that this is found outside in nature out outside of the social unlike the law morals completely social so this brings us to sanctions a norm has to be sanctioned so he distinguishes here between two kinds of sanctions he talks about transcendental sanctions this is again outside of society a transcendental sanction means the justification for the punishment comes from morals or from religion or some idea of nature or our terrible pop cultural understanding of karma on the other hand we have socially imminent sanctions these

originate completely within Human Society so legal sanctions it's not when you go to prison it's not God punishing you it's not nature punishing you it's Society punishing you so the legal system has no values outside of its own compliance or not and its sanctions find their justification from within the legal system nowhere else in this sense moral sanctions are also socially imminent according to Carlson because moral disapproval is a social construct it's not natural so at this point this is where I want to diverge a bit from the typical reading of calcin because you know

Carlson's name is very often equated totally with his idea of the gun Norm the basic Norm from which all Norms as they refer infinitely back to each other that chain is broken by introducing the Google Norm the basic Norm that justifies everything that follows from that you know this is a typical kind of solution to a problem if we have a paradox where does this law get its justification from that law from that law from that law and eventually you have this Paradox where you can infinitely regress and one way to break a paradox like

that is to appeal to a value higher than hierarchically higher than the level on which you're operating at that moment and Carlson does that by referring to the gun Norm which is the norm that kind of breaks open this infinite Loop and puts a you know the bug stops there and this is what he's been famous for but I don't think this is the key here for me in this chapter what I think is more interesting and which I think is he spends way more time talking about at least in chapter one is the coercive

nature of legal sanction so as We Know sanctions can exist in Society in a moral sense taboos or being shunned from society polite Society breaking of etiquette you don't get invited to parties perhaps this also happens when you study legal positivism but for calcin coercion does not exist in those kind of sanctions it is only in the law that we find real coercive sanctioning violence so how did this arise he starts from a very hobbsian starting point saying that violence was widespread and anyone could enact violence on others and that this was a threat to

Social Security so in order to increase Security Mutual Security within a society violence had to be taken out of the hands of most people and centralized and monopolized in one place and in this way the average man becomes less and less violent for his own security until all this violence is monopolized in one organ namely the state some forms of personal violence have remained such as well blood feuds are gone but took much longer than other forms self-defense is still allowed in many cases so not all Vines has been monopolized but of the vast majority

of it at this point Carlson brings up Saint Augustine who asks the question what's the difference between the threats and violence of a robber gang compared to the threats and violence of a state but no seriously what's the difference and Augustine's answer to this was that the state has Justice on its side the rubber gang doesn't for Carlson as you might Intuit this is not a satisfactory answer firstly Justice is a transcendental value Carlson is not sure what Justice is so he says that cannot be the difference so what is the difference between the state

and a and a gang he gives a few answers to this none of which satisfy me entirely he says in the first case that when a robber gang threatens you to do something they threaten you with violence give your money or else that or else is a command saying that violence will be inflicted whereas in the legal system then sanctioning Norm is an ought to it's not a promise of direct violence this is not entirely satisfying to me secondly he says that the legal systems sanction is backed by a gun Norm the robber gangs not

again uh it's a kind of a circular argument to me but he would say the point is that the legal system or the state has a good Norm behind it finally and this this one I buy the most but also not completely he says that the advantage that the legal system has in its sanctions it's coercion is this idea of objectivity over subjectivity in other words that legal sanctions and coercion is applied and decided upon by a judge whose impartial and objective to your certain case he doesn't stand anything to gain directly I guess and

the point is that he judges as we said through a rational process of applying existing Norms he doesn't have skin in the game he's just going by this positive negative value inherent in the legal system on the other hand Carlson goes on to say that the a robber gang which can be stable enough can control the territory long enough can protect itself from external threats and that it's internal threats and and and Norms are being basically effectively followed by the people living there that such a gank could graduate to the point of estate although he

never actually says that directly he uses the example of pirate states in the past to say that they were state-like but not completely States um which I mean this again begs the question at what point uh does a robber gang become a state for Kelson I'm not sure maybe we'll see it in later chapters although I doubt it so finally I think the point that I'm trying to emphasize here is that rather than the Goon Norm the aspect of coercion seems much more important in this first chapter for Kelson he also gives his reasons for

this he says in the first place that it's coercive sanctions that distinguishes the legal order from other orders from moral orders religious orders whatever so coercion is a defining feature of the law the second point is is that it's through this coercion this Monopoly on violence that we can make a direct and strong link between the law and the state in Carlson's definition of the law the state is essential and coercion violence is essential anyway that's it for chapter one I'm looking forward to doing chapter two next just to finish off with here is a

list of a lot of the kind of binary distinctions that Kelson draws in this chapter maybe it's a nice guide if you're reading it by yourself to keep that next to you and refer back and forth between that to see exactly kind of the these branching distinctions that he keeps making in this chapter laying out the definitions and the work and the assumptions that we're going to deal with in the future so thank you very much and have a lovely day and I'll see you next week thank you