His most important target, within the Thirties, was fascist theories of state and law, similar to that of Carl Schmitt But, for Kelsen, it is also an illusion to think that, in a Rechtsstaat (roughly, ‘rule of legislation state’), ‘the state’ is wholly topic to legislation: from a ‘authorized point of view’, the state and the constructive-authorized order are the identical.
As Joseph Raz noticed, Kelsen agrees with the Pure Law custom on this specific respect; both assume that the normativity of legislation can only be explained as one would clarify the normativity of morality, or faith for that matter, particularly, by way of valid causes for motion (Raz 1979, 134-137; but cf. Paulson 2012).
Suppose an act innocuous, or positively useful, be prohibited by the sovereign beneath the penalty of loss of life; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it’s contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which don’t have any evil penalties, the Courtroom of Justice will exhibit the inconclusiveness of my reasoning by hanging me up, in pursuance of the regulation of which I have impugned the validity (Austin 1995, 158).
In reading Kelsen, nevertheless, one has to keep in mind that, when he refers to a ‘norm’, he’s often talking elliptically: he’s uttering a authorized proposition which stands for a authorized norm, in a lot the same way that an image of a canine exhibits the dog but doesn’t bark.… Read More