Repository | Book | Chapter

As H.L.A Hart's gunman case serves as an illustration of the weakness of Austin's theory of command, we could ask if this also true for Hans Kelsen's Pure Theory of Law. One possible answer could be that the gunman situation doesn't apply to his theory, as, inter alia, Kelsen's theory is strictly bound with the concept of primary and secondary norm. When he speaks about legal norms, he distinguishes primary and secondary norms, the most important of which for law is the primary norm, which consists of two elements: the condition which is needed for an execution of a sanction, and the obligation to impose the sanction. Why does the gunman situation not apply here? Let's imagine a gunman who says: "give me the money, or I"ll shoot". Such a statement seems to be very similar to the construction of a secondary norm, for example: "register a car, or receive fine. However, what distinguishes them is the fact that legal norms, especially secondary norms, must refer to a competent authority who represents the state. But this claim seems to be source of another problem. If we agree on such an interpretation, we risk being trapped in a vicious circle defining law: if law is a set of norms which come from the state, and the state is just a legal order, we return to the starting point. In this paper, I will examine whether a more favorable explanation can be found for this dilemma, or if such a vicious circle really exists in Kelsen's legal theory. I will then demonstrate that the solution is based on a combination of so-called relative categories a priori, dynamic structure of law and primary and secondary norms.

DOI: 10.1007/978-3-319-09375-8_14

Full citation: