Pure Theory of Law - Law and Power

Law and Power

Descriptively, the Pure Theory of Law has always been about power. A positive-legal order can be identified when there are norms that regulate their own creation through a process of authorisation and, in addition, the order itself is 'by and large effective'. Kelsen does not closely specify 'by and large', but he does attribute effectiveness to coercion. In this respect, there is some affinity with John Austin's 'command' theory of law. But Kelsen's approach is quite different from Austin's. Austin finds the defining characteristic of law on the plane of the signifier, in imperative utterances. Kelsen has almost no interest in the signifier but focuses on the signified: a 'norm' is an utterance that, whatever its grammatical form, has the meaning 'ought (Sollen)'.

Austin and Kelsen also differ in that, for Kelsen, legal norms are addressed primarily to officials. Officials are directed to apply sanctions to individuals when the individuals' behaviour does not conform to a pattern specified in the norm. It is anticipated that individuals, in choosing how they will behave, will take into account the possibility that an official will apply the sanction. In that way, norms and the orders to which they belong can be effective. However, most if not all jurists now accept H.L.A. Hart's point in The Concept of Law, though directed principally against Austin, that not all legal norms are coercive - some, and some of the most important, are facilitative. The Pure Theory of Law can accommodate this by accepting that what matters most is not whether particular legal norms are coercive but whether, by containing coercive norms, the legal order as a whole is coercive - which Hart does not deny.