1. External Explanations: Austin’s Command Theory of Law

The Command Theory explains the unity of law using the doctrine of sovereignty. Let us look a bit more closely at the theory and what this implies.

Austin’s theory holds that a legal system contains all and only the laws issued by one person (or body of persons). Hence, a given law belongs to that legal system which contains laws issued by the legislator of that law.Footnote ⁹ However, a legal system only exists if “the common legislator of its laws is a sovereign”—namely if, in point of fact, the person or group issuing the laws lives up to the conditions of sovereignty.Footnote ¹⁰ Following his intellectual predecessor, Jeremy Bentham, Austin explains:

We can complement this passage with Austin’s related discussion of the sources of law. In a central sense, Austin defines a source of law as “its direct or immediate author.”Footnote ¹² Yet he also makes clear that “either directly or remotely, the sovereign, or supreme legislator, is the author of all law; and all laws are derived from the same source.”Footnote ¹³ That is, Austin obviously was aware of the fact that not all the laws of a given legal system are commands issued by its (current) sovereign. But this would entail that some laws are at the same time (1) part of the legal system, yet (2) not the sovereign’s commands, thus defying Austin’s criterion. Hence the italicized part in the passage just quoted, alluding to the idea of indirect legislation or tacit command. Raz explains:

In Raz’s reconstruction of Austin, a unified legal system is an assemblage of laws, all of which have been directly or indirectly issued by the same legislator—assuming that this legislator is in fact (still) sovereign and can enforce the laws. If they are, the unified assemblage of laws will be a valid legal system.

Thus we have the basic ingredients of Austin’s doctrine of unity: First, every law can be traced—directly or indirectly—to an act of legislation;Footnote ¹⁵ second, the ultimate origin of all the laws is the legislative activity of one and the same person or group, who is the ultimate source of legislation; and third, the laws thus enacted are in force so long as this ultimate source continues to be sovereign, thereby consolidating them to a valid system.Footnote ¹⁶

The unity of an Austinian system is thus fully accounted for based on the origin of its laws. For this reason, Raz ascribes to his theory the principle of origin. According to it, “the membership of laws in a system, and the identity of the system, are completely determined by the origin of the laws; the origin of a law being the set of facts which brings it into existence.”Footnote ¹⁷ Austin’s doctrine is therefore a paradigmatic case of external explanations: By relying solely on the origin of laws, it explains unity strictly on factual grounds.Footnote ¹⁸

Notably, the reliance on a purely external explanation allows the Command Theory to dispense with any necessary relations between laws. Hence Raz also attributes to Austin’s theory the principle of independence. According to it, a legal system can be unified as a mere heap, viz. even if there is no connection between its laws other than their shared source.Footnote ¹⁹ This entails that Austinian laws are self-standing, as it were: “The fact that every law is a command entails that every law can be an independent unit, the existence, meaning or application of which is not logically affected by other laws.”Footnote ²⁰ Raz does not spend too much time discussing the implications of this feature. But as will be now argued, it is in fact central for the model of authority undergirding Austin’s theory.

2. Criterial Models

If a legal system is unified purely externally, it is committed to the principle of independence. If so, its unity is not a function of internal relations between its laws, and, for the same reason, the validity of any law in the system does not stem from other laws. Thus, purely external explanations correspond to what I shall call ‘criterial models.’Footnote ²¹

Under a criterial model, establishing the validity of a certain legal element means investigating if it conforms to extralegal criteria. The criteria may vary between different systems, and they may resort to all kinds of facts, be they the say-so of the elderly or the enactments of the Queen in Parliament. Yet whatever their content, it is always the case that the criteria logically precede—and accordingly are independent of—the individual elements that they validate. From the standpoint of accounting for the validity of a certain element, the criteria are taken as fixed: If a given law adheres to them, it is part of the system, and is therefore valid; otherwise, it is not. There is no reciprocal influence between the laws and the criteria. As the criteria are factually grounded, they are not a function of the validity of this or that particular legal element, and they remain intact even if a given law, or a bunch of laws, fails to conform to them.Footnote ²²

Austin’s theory is a case in point. A law belongs to an Austinian system, and is thus valid, only if it can be shown to live up to the criteria that that system presupposes. For Austin, these include the conditions defining sovereignty and those constituting sovereign acts: Any law that has been enacted by the sovereign is a valid part of the system, insofar as the sovereign remains habitually obeyed by the bulk of the relevant population. Accordingly, if for some reason the supreme legislator ceases to be sovereign, all the elements in the legal system instantly lose their validity.Footnote ²³

But we can easily come up with counterexamples to this analysis, already alluded to: Some laws clearly do not conform to the factual criteria set by Austin. How, then, can his theory explain their validity, as parts of the legal system? One possibility, which Austin adopts in the case of constitutional laws, is to revoke the validity of such laws altogether. Hence Austin concluded that some rules of constitutional law that cannot be shown to be enacted by the sovereign, such as those setting up law-making procedures, are not laws properly so-called at all; they are rather part of the community’s positive morality.Footnote ²⁴ Alternatively, as in the case of customary law, one has to conjure up explanations for the validity of apparently unenacted laws. Here Austin’s solution resorted to the doctrine of tacit adoption.

The doctrine sought to explain how deviant sources of law, such as custom and judicial legislation, can be reconciled with the Austinian criterion that all laws are commands of the sovereign. Simplifying, the idea is that the sovereign ‘acquiesces’ in the application of customs and laws that were enacted judicially, by accepting them as instances for the exertion of sanctions. Since the sovereign is aware of common-law adjudication and customary law—and backs both sources by exerting sanctions upon defiance—they must have tacitly embraced them. Hence, Austin concluded, they too are admitted as valid parts of the legal system. Yet, as several critics have noted, this solution in fact equivocates on the relation between the sovereign and the deviant sources, as it is not clear precisely what the conditions for ascribing to the sovereign such tacit recognition are.Footnote ²⁵

Raz, however, wants Austin to go further. First, in the spirit of this last misgiving, Raz argues that Austin misused the doctrine, because he (Austin) did not plausibly explain the circumstances under which hypothesizing a tacit command is acceptable. But second, and more importantly, Raz thought that the doctrine is unnecessary for Austin. As mentioned, in Raz’s reconstruction of Austin’s theory, the important thing is that, when one traces the source of every law in the system, one eventually ends up with an ultimate source that binds all of them. This allows Raz to supplant tacit adoption with the idea of indirect or “non-ultimate” legislation, relying on what he dubs “obedience laws.”Footnote ²⁶ Importantly, obedience laws are only hypothetically laws.Footnote ²⁷ They have not been enacted, but are assumed to exist by virtue of their function (had they been enacted, one would not have resorted to fictions). According to Raz, such rules grant legislative powers to actors which are thereby designated ‘non-ultimate’ legislators. A non-ultimate legislator is competent to legislate if, and only if, there is a law that confers upon them the power to make law, by instructing the relevant group of subjects to obey their commands. Since obedience laws are presumed to have been enacted by the sovereign, they amount to indirect commanding; hence any non-ultimate legislation would be valid via its indirect relation to the sovereign.

Obedience laws, let me reiterate, were not part of Austin’s own exposition. In fact, as Raz notes in passing, “Austin never explains how exactly delegated legislation takes place.”Footnote ²⁸ But contrary to Raz’s assumption, this is not necessarily an omission on Austin’s part. For, if one admits hypothesized laws into the Command Theory, laws can then be validated by recourse to other laws without any positing of this validating relation, i.e., absent any discernable act on the part of the sovereign. This drifts even further away from the logic of an Austinian system, which severs questions of validity from necessary relations between laws.

More schematically, we can say that Raz’s suggestion impairs the direct relation between the sovereign and all the system’s laws. It thus turns an immediate criterial model into a mediated one. An immediate model grounds each legal element directly in facts, and it is therefore necessarily an instance of a purely external explanation. Mediated criterial models, however, allow for the invocation of intermediate elements—like unenacted laws—that are themselves not factually grounded amidst accounting for the system’s unity, insofar as all legal elements are ultimately accounted for in factual terms. Such models thus correlate to explanations that are ultimately, yet not purely, external. To understand why Austin might not welcome such alteration, we need to flesh out the latent relation between criterial models and the more general aspirations of naturalist positivism.

3. The Political Underpinnings of Naturalist Positivism

It was Kelsen who noted that the naturalist concept of law is an upshot of the triumph of 19th century bourgeois liberalism over the then-reigning monarchical and religious orders.Footnote ²⁹ The victory marked the beginning of an outspoken reaction against the metaphysics of the time and, specifically, against natural law theory. With the progress of the empirical natural sciences and the breakdown of religious ideology, ‘bourgeois legal science’ shifted to legal positivism—the naturalist strand. As part of this shift, naturalist positivists, especially Bentham and Austin, molded their theories of legal authority with an eye to their political ambitions. As Jeremy Waldron explains, naturalist positivism “represents not merely a descriptive but also a normative impulse.”Footnote ³⁰ Its proponents accordingly were not entirely neutral when they identified parliamentary sovereignty as the prime source of law. Rather, “[t]hey valued the opportunity that legislation represented as a way by which the community … could take control of its law as something explicitly man-made.”Footnote ³¹

Put differently, naturalist positivists have long been committed to the idea that law is a mundane, social phenomenon, devoid of the mystifications and enchantments imparted upon it by natural law thinkers. This commitment might explain Austin’s reluctance toward admitting any unenacted laws into his theory—even at the cost of equivocation. Such an uncompromising stance may well reflect the insistence that no metaphysical entities, emerging from thin, unenacted air, should be allowed to infiltrate the positive law of the people by way of so-called conceptual derivation. Solutions such as Raz’s put this commitment at stake, as laws and relations between them might be deduced as valid parts of a legal system without any purposeful human action.

This analysis is corroborated when we unearth the linguistic assumptions of naturalist positivism. We saw that immediate criterial models operate based on the principle of independence, namely, they forego any necessary internal relations between laws. This was captured in Raz’s previous claim, that “[E]very law can be an independent unit, the existence, meaning or application of which is not logically affected by other laws.”Footnote ³² If the meaning and application of every law are not a function of other laws, it follows that so is the execution of laws. This claim rests on the assumption, also famous in Hart, that the core of a legal rule is generally speaking sufficiently clear and distinct from its penumbral areas, allowing for the application of laws as a matter of course.Footnote ³³ In the vast majority of cases, then, implementing a legal rule does not require interpretation. Accordingly, as Hart noted,

This centralized structure of legal authority is tightly connected to the character of law-implementation under the Command Theory. First, the immediacy of the relation between commander and commanded guarantees that no unenacted elements surreptitiously gain legal validity without a corresponding positing act. Second, for Bentham and Austin, it had to be the case that law is the unmediated sovereign’s command, for otherwise questionable mediators—read: Common law courts—might thwart the salutary implementation of Utilitarian ideals that they wanted to promote through enlightened legislation.Footnote ³⁵ The centralized verticality of criterial models therefore goes well with the claim that the laws posited by the sovereign are clear, logically independent commands. Issued immediately from ruler to ruled, they neither require nor admit interpretive mediation by courts (or other interpreters).

But whether or not Hart and Raz are taken to endorse similar motives, it must be understood that their model too relies on a similar linguistic fulcrum. According to Hart, legal rules are applied simply by “classifying particulars,” and only “penumbral” applications of laws—the rare situations where legal rules lack clarity—call for interpretation, under the famous positivist doctrine of extralegal discretion.Footnote ³⁶ Accordingly, the execution of a law is generally taken to be a simple task, necessitating little if any interpretative leeway. This assumption clearly undergirds Raz’s Concept, and it reinforces the criterial nature of his theory.Footnote ³⁷ So while one should be careful not to overlook the differences between mediated and immediate models, one should also bear in mind that both are naturalist, criterial, and ultimately resort to external explanations of unity.

To recapitulate, classic naturalist positivists reacted against the metaphysics of natural law theories by grounding law directly in facts. They have done so by devising a centralized, vertical model of legal authority that is criterial. The immediacy of their criterial model is premised, first, on the idea that for the most part, the sovereign commands subjects directly, and second, on the notion that the commands thus posited can be implemented to subjects using little if any interpretation. Laws are assumed to be fixed, clear rules, unified into a system based solely and directly on their provenance—save for specific exceptions, to be accounted for by the sovereign’s implicit recognition of customary law and common law adjudication. For the same reason, any discretion granted to official interpreters of the law is necessarily confined to the penumbra. In the normal case, valid laws are implemented to concrete cases based simply on applying the general terms of the law to the case at hand. The linguistic stipulation, concerning the core of settled meaning of legal rules; its corollary, the sidelining of interpretation to penumbral cases; and the principle of independence, corresponding to a purely external explanation of unity, thus go well under a criterial framework.

Raz’s restructuring of Austin, pushing the Command Theory from an immediate criterial model to a mediated one, is therefore far from trivial. For classic naturalist positivists such as Austin, legal unity was surely a feature pending explanation, but hardly did it epitomize the phenomenon named ‘law.’ Sufficed it to systematize law externally; insofar as laws are enacted by one sovereign, the legal system exhibits all the unity necessary. For Austin, the crucial point was that all the system’s laws are grounded in facts, barring the creation of unenacted elements, and narrowing the ability of official mediators to interfere with parliamentary legislation. Raz’s reconstruction of the Command Theory adds a mediated, internal layer to Austin’s immediate, purely external explanation. As will be seen, this apparently innocent revision heralds a profound change in the structure of legal authority envisaged by naturalistic positivism.

1. The Pure Theory: A Scientific Theory of Law

To understand the internal explanation adopted by Kelsen, and its correlative model of authority, it must be understood that his theory differs in kind from naturalist positivism. Yet as the Pure Theory has been the target of much misconception and confusion—at least partly, I contend, due to its treatment by naturalist positivists—it is worthwhile to open up by briefly sketching its central tenets. The point is not so much to embark on a full-blown discussion of Kelsen’s intricate thought, as it is to provide the reader with the theoretical essentials that will allow the examination of his contrasting theory of unity.

The Pure Theory is a scientific theory of law. It aims at an accurate cognition of its object, which is a legal system, and attempts to demonstrate that such knowledge is possible.Footnote ³⁸ In exploring these conundrums, the Theory does not confine itself to a particular system. Rather, it is a general theory that takes as its object the phenomenon of law, as in a unified system or order of norms, wherever it takes place.

The scientific posture of the Theory informs its methodology: The basic principle is that law is to be understood strictly legally. Put differently, the Pure Theory sees law as an ideal reality, to be kept distinct from both morality and the natural reality.Footnote ³⁹ Law is the kind of object that can be understood purely in its own terms and, therefore, must be so understood, if true insight into its nature is to be gained. Hence the scientific purity of the Pure Theory rejects all external explanations of law, moral or natural in character.

This claim Kelsen sometimes puts as the idea of freeing the legal norm or ‘ought.’ Against the moral standpoint, the legal norm must be kept apart from the notion that the ultimate goal, the ideal, of legal norms is justice.Footnote ⁴⁰ Despite ostensible similarities, the legal norm differs in kind from its moral counterpart. First, legal norms exist, or are valid, only by virtue of their being validly posited; a legal norm’s validity is not assessed based on the strength of its content, i.e., on whether it realizes some external moral ideal.Footnote ⁴¹ This idea echoes one of Kelsen’s more famous claims, namely that law can have any content: No human behavior is excluded a priori from being the content of a legal norm. Second, legal norms must be separated from their moral equivalents because, unlike the latter, the former are not simply imperatives.

This last claim also comes out of the separation of the norm from natural reality. The legal norm, Kelsen contends, must be distinguished from the factual circumstances bringing it about, as an ‘ought’ can never be derived from an ‘is.’ Thus, the norm cannot be equated with the set of mental events or physical processes that bring it into existence.Footnote ⁴² In contrast to Raz’s description of the Pure Theory, then,Footnote ⁴³ Kelsen is quite explicit that norms are not imperatives.Footnote ⁴⁴ Rather, a norm is the elemental unit that facilitates the translation of natural reality to legal reality. This process is clarified using a second distinction, between a natural act and the legal meaning imparted upon the act. Kelsen explains:

Another way at the contrast follows the central principles undergirding the natural science and the legal one. If a material event, taking place in space and time, is to be known as an object of scientific cognition, it must be ordered within a systematic understanding. Here Kelsen follows Kant, to argue that such understanding unifies natural phenomena based on laws of nature.Footnote ⁴⁶ Laws of nature link a certain material fact as cause with another material fact as effect, e.g., when we say that A happened because B did.Footnote ⁴⁷ Thus, material facts and events are part of nature inasmuch as they are governed by the principle of causality. Analogously, legal norms connect a certain fact—most often, human behavior—with a sanction.Footnote ⁴⁸ If the principle tying the occurrence of a natural fact to that of another is causal, the relation between a legal condition and a legal consequence relies on a normative principle. What renders an act legal, therefore, is not its physical being, but its interpretation as legal:

Thus, our conclusion that a given natural act is the execution, say, of the death penalty, rather than simply murder, is the result of the process of interpreting this act based on the criminal code.Footnote ⁵⁰ In this sense,

It follows that while the natural and normative principles are similar in form, the type of connection they establish is different. While the causal principle says: “If A is, then B is (or will be),” the normative principle says: “If A is, then B ought to be.”Footnote ⁵² Unlike laws of nature, then, legal norms are hypothetical judgments: A natural law stipulates that under certain conditions, a certain effect is to happen, while a legal norm stipulates that under certain conditions, a certain effect ought to happen.Footnote ⁵³

The corollary is that just like we can comprehend nature, as a unified system of actual judgments we can comprehend law, which is a unified system of hypothetical judgments.Footnote ⁵⁴ The unit facilitating this legal understanding is the norm, which links an abstractly defined legal condition—a subject’s behavior—with an abstractly defined legal consequence—a sanction. We can thus make sense of law and legal phenomena based on the unification of legal norms.

The exposition conditions the unique understanding of unity envisaged by the Pure Theory. Legal unity is not the unity of a set of commands to be accounted for externally, based on this or that factual condition. Rather, it is a unity of hypothetical judgments, and it is thoroughly cognitive in nature. We interpret the relations between the manifold general and particular legal norms, to constitute them as an interrelated order that transforms natural acts and events to legal ones. The Pure Theory thus relies on an explanation of unity that is qualitatively different from the external, factual one.

2. Internal Unity and the Source of Law

The Pure Theory calls us to explain the unity of law in purely legal, i.e. internal, terms. This task Kelsen frames as an inquiry concerning the dynamics of the norms that culminate in a unified legal system. It is closely related to the question: “Why is a norm valid?”Footnote ⁵⁵ and, as mentioned, this question is related to the question: ‘Why does a legal norm belong to a legal system?’ According to the Pure Theory, the reason for the validity of a norm is that it is part of a valid order. A valid order is one all the norms of which can be traced to the same basic norm. If this basic norm is taken to be valid, then so are all the norms that can be traced back to it. Accordingly, a legal norm is part of a certain order if its validity can be traced to the basic norm unifying that order.

Kelsen’s answer to the unity question, one might worry, seems quite similar to Austin’s, unifying laws if their creation can be traced back to the ultimate law-creating authority. What is more, Kelsen is not always careful to clearly distinguish the terminology and mechanics of his internal explanation from those of an external one. Particularly worrying is his tendency to refer to the Grundnorm as a “source” of norms, for example in the following passage:

In light of such paragraphs, it is perhaps unsurprising that at least in Anglo-American jurisprudence, The Pure Theory is usually read as a (misguided) version of naturalist positivism.Footnote ⁵⁷ Can one really blame commentators like R.K. Gooch who, in equating the analytical projects of Kelsen and Austin, argue that “it seems fair to say that Herr Kelsen is essentially a neo-Austinian”?Footnote ⁵⁸

Especially problematic in this connection has been Raz’s engagement with Kelsen, which effectively assimilated his theory into the naturalist strand.Footnote ⁵⁹ First, as noted earlier, by designating the Pure Theory an “imperative theory,” despite Kelsen’s insistence that norms are not imperatives but hypothetical judgments. But second, and even more importantly, by recasting it as a “theory of a common source.”Footnote ⁶⁰ In Section I, we saw that Raz took Austin’s theory to be a variant of such theory: ‘The important fact’ about Austin’s unity criterion, Raz stressed, ‘is that when we trace the source of the laws of a system we end with one person (or group) who is the ultimate source of every one of them.’ Similarly, by presenting the Grundnorm as the common source of all the system’s norms, Raz equates Kelsen with Austin:

But this claimed similarity is doubly misleading. First, as we saw, Raz’s recasting of the Command Theory as a mediated criterial model might not be welcomed by Austin. Second, Kelsen emphatically rejects the concept of a ‘source’ of law as a fixed set of criteria from which legal norms derive, since the Pure Theory’s basic principle forbids any derivation of norms from facts.Footnote ⁶²

Yet this seems to fly in the face of passages such as those quoted: What is Kelsen talking about, then, in discussing the Grundnorm “qua common source”? The answer is to be found in the epistemic character of the Pure Theory. For Kelsen, the unity of a plurality of norms is a function of our ability to cognize the relation of each norm to its validating counterpart, all the way to the Grundnorm. But it does not follow that, similarly to the criterial model, the Grundnorm emanates, and thus logically precedes, the norms of the system. In fact, the order is reversed: The Grundnorm is presupposed not prior to the validity of the system’s norms, but because they must be understood as valid to make sense of the legal activity already taking place, viz. if they are to facilitate the interpretation of (actual) acts and events as objectively legal. Putting it somewhat cryptically for the moment, the efficacy of a legal order logically precedes the presupposition of its basic norm. This slogan relies on Kelsen’s explanation of law as a hypothetical order, comprising two elements: A chain of validation, and a Grundnorm. A close examination of these will clarify that the Grundnorm is the ‘source’ of the system’s norms in a sense very different than Raz’s.

3. Validity Chains and the Grundnorm

4. The Coherence-Based Model and the Dynamics of Legal Interpretation

We now delineate the contours of Kelsen’s coherence-based model. Unlike criterial models, it does not see validity as wafting down from the external authority at the apex of the system. Rather, validity is a function of normative relations: If a norm coheres with other valid norms, it is part of a valid unity, and is itself valid. Valid law is therefore the set of those norms that cohere with one another and are unified by a valid Grundnorm. The relevant benchmark for assessing a norm’s validity, then, is always to be found in another norm. As positivism assumes that legal norms can be created, amended, or repealed on demand, the standard for norms’ validity is not fixed.Footnote ⁸³

Since for Kelsen legal relations are dynamic, that a norm ‘coheres’ with another means that the validated, lower-level norm lives up to the dictates of its validating, higher-level counterpart. But as the foregoing discussion makes clear, this precept should immediately be qualified as epistemic: We must be able to interpret the totality of norms as comprising a hierarchical order of formal validation. Since the basic norm of a legal order is thoroughly dynamic, our cognizing of the relations between norms cannot be static: Lower-level legal norms cannot logically be deduced from the basic norm. This brings Kelsen to one of his more dramatic claims: The issuance of a legal norm relies on (the interpreter’s) will, not intellect.Footnote ⁸⁴

Consider how the Pure Theory characterizes adjudication as the implementation of general norms, e.g., statutes. As a hypothetical judgment, a general norm attaches an abstractly determined consequence, viz. a sanction, to an abstractly defined material fact, viz. human behavior. Implementing a general norm means fleshing out its normative meaning in the concrete case.Footnote ⁸⁵ This requires that the fact which the general norm determines abstractly be ascertained as present in the actual dispute, and that the abstractly defined punishment shall too be concretely determined.Footnote ⁸⁶ Accordingly, any general legal norm requires individualization, which is the task of the judicial decision.Footnote ⁸⁷ Notably, the judicial function is not declaratory:

The court must create the individual norm according to which this defendant must be punished with this specific sanction; and this individual legal norm did not exist prior to the court’s determination.Footnote ⁸⁹ The determination becomes a link in the chain of dynamic law creation, concretizing the legal norm as it journeys down from the upper, abstract echelons of the system.Footnote ⁹⁰

This brings us to interpretation, which plays a dual role in Kelsen’s theory, corresponding to two modes of, or points of view on, the legal order.Footnote ⁹¹ He distinguishes between authentic and non-authentic interpretation.Footnote ⁹² The second kind of interpretation is the province of the legal scientist trying to make sense of rules of law, describing the norms of the system as seen in a snapshot. This static view is important for inquiring into positive law, as well as for the legal subject, say when they are trying to understand the system ‘in rest.’ Our discussion focuses on the first kind, which connotes the operation of legal authorities within the order dynamically, i.e., from the standpoint of law as an order constantly in the making. Authentic interpretation is the creative interpretation exercised by the organs actually applying the law, e.g., a court’s decision applying a statute. The court’s decision creates a lower-level norm, based on the authorization set in the statute. This individual norm is the implementation of the abstract, general norm in the concrete case, its meaning in the actual dispute before the court.

Here we reach the essence of the dynamism of a legal order. On the one hand, the relation between a higher- and lower-level norm is one of determining or binding. The higher-level norm regulates the procedure for creating the lower-level norm, and also, possibly, its content. But on the other hand, and this is the crucial point, this determination is never complete.Footnote ⁹³ There must always remain less or more room for discretion on the part of the implementing organ, as even the most detailed command must leave some discretion to the executing party. Kelsen gives the example of a norm decreeing the arrest of a suspect:

In contrast to the linguistic clarity stipulated by criterial models, the inherent indefiniteness of norms under the Pure Theory entails that interpreting a norm can only mean the ascertainment of a ‘frame.’ Several possibilities are open for applying the norm, and, so long as the applying act remains within the frame, it is validly authorized, i.e., legal.Footnote ⁹⁵ Interpretation does not lead to a single decision as the legally correct result, as if the content of the validating norm need only be teased out, intellectually, by the interpreter. Rather, interpretation entails several options of equal value, one of which—the one chosen by the applying organ—will become positive law. Hence, that a judicial decision is based on a statute means that it keeps inside the frame; not that it is the individual norm, but only that it is one of the individual norms that may be created.

It follows that law implementation is necessarily law creation. The means of creation is legal interpretation, which exists at every stage of implementation.Footnote ⁹⁶ Creative interpretation, then, is not confined to the ‘penumbra’: Even the so-called ‘core’ of a law requires interpretation to be implemented in a concrete case. The corollary, to quote Dyzenhaus, is that “law made at the higher levels of the legal hierarchy … [is] progressively concretized as it journeys down to the moment of actual application to a particular legal subject.”Footnote ⁹⁷ Yet the Pure Theory’s dynamism runs even deeper. We conclude this Section by demonstrating this rather radical feature, using Kelsen’s discussion of the (im)possibility of conflict between norms.Footnote ⁹⁸

5. Coherence and the Possibility of Norm Conflicts

A legal order represents a hierarchy of upper- and lower- level norms. A norm belongs to such an order only because and insofar as it accords with the higher norm that determines its creation. But what is the law if a lower-level norm does not conform to the norm that prescribes its creation and, especially, its content?

Surprisingly, Kelsen believes that such conflicts are merely apparent: If a norm truly were in conflict with a norm that determines its creation, it could not have been regarded as valid. Such a “norm” would be null, which means that it would be inexistent, and hence—no norm at all.Footnote ⁹⁹ The positive law, however, does not take such norms to be null, precisely because it normally includes procedures to annul them: “If a legal order authorizes the annulment of a norm it must first recognize this norm as an objectively valid, that is, lawful, legal norm.”Footnote ¹⁰⁰ Accordingly, even if a court’s decision, creating an individual legal norm, is deemed ‘unlawful’ by a higher court authorized to rescind it, this only means that the norm was annullable, i.e. that it could have been invalidated by a legally regulated procedure.Footnote ¹⁰¹

What is more, if the procedure for annulment has been exhausted, and the individual legal norm can no longer legally be questioned, the deviant norm would nonetheless remain valid. The same holds for all final decisions in a legal order:

Alongside the general norm that predetermines the content of the judicial decision, then, there also exists an implicit norm, according to which the court may itself determine the content of the individual norm that it is to create. The court of last instance is therefore authorized to create either (1) an individual norm the content of which is predetermined by the general norm, or (2) an individual norm whose content is not so predetermined but is to be decided by the court itself.

In the same vein, the fact that the decision of a court of first instance is annullable means that courts are authorized to create individual norms, whether their content lives up to the content predetermined by the general norm or not. The only qualification is that the decisions of courts other than the court of last instance are provisionally valid—if a legal process allows that they may be rescinded by a higher instance—while the decisions of the court of last instance are definitively valid. Put simply, so long as a decision has been issued by a court (or any other authorized organ), it cannot be unlawful.Footnote ¹⁰³ It is valid until rescinded, and, if it cannot be rescinded, until its validity is terminated by another legal norm. Kelsen concludes that there can be no genuine conflict between the individual norm, created by the court based on the general statutory norm, and this latter general norm.

The notable corollary is that the possibility of predetermining the creation of individual norms by courts is “very limited,”Footnote ¹⁰⁴ particularly with regards to the norms’ content. The same applies to any apparent conflict between upper- and lower-level norms throughout the order:

Because presupposing the validity of a legal order means presupposing a Grundnorm that coherently unites it, it is impossible for genuine conflicts between norms to plague such an order. Had such conflicts been real, either the order could not have been formed, or the particular conflict could not have been cognized as part of it. Unfortunately, the cognitive part of Kelsen’s theory is completely sidelined by Raz who, in a rather laconic fashion, dismisses both coherence as a necessary requirement for the unity of normative systems and its corollary, the radical indeterminacy of content relations under an epistemic view of unity.Footnote ¹⁰⁶ This dismissal, it will now be seen, has dramatic consequences.

1. Situating the Dilemma

Raz’s theory of unity has at least two distinct stages, which I shall dub an early and an updated one. These will be discussed in turn. This Section examines the first iteration, extracted from Raz’s Concept. It propounds two overarching claims. First, that Raz’s early theory struggles to account for legal unity. The reason is that his unity criterion attempts to reconcile two antagonistic tendencies: A naturalist outlook and an internal explanation of unity. As we saw, Raz sets the stage for this attempt by juxtaposing Austin and Kelsen’s theories as similar in the relevant respects. This leads to the second overarching claim, which is that this juxtaposition seriously distorts the Pure Theory.

In light of the preceding discussion, it is no coincidence that Austin’s theory adopts a purely external explanation of unity whereas Kelsen adopts a purely internal one. External explanations go well with a criterial model, allowing little if any intermediation between the commands of the authority and the implementation to subjects. Kelsen’s internalism, however, is emphatically non-naturalist, seeing legal unity as the upshot of a cognitive endeavor of interpretively interrelating lower- and upper-level norms into a single coherent order. It accordingly relies on the vast discretion of official mediators, not on the correspondence of norms to fixed, factual criteria bringing law about.

Raz’s Concept is interesting because it is the first prominent work that attempts to reconcile the tendencies. On the one hand, Raz’s early theory of unity is, of course, naturalist. Throughout his works, Raz is emphatic that law and legal phenomena are to be accounted for by social facts. This comes out both from his adoption of Hart’s rule of recognition (albeit with several modifications that needn’t detain us),Footnote ¹⁰⁷ as well as from his meticulous analysis of the structure of a law, following Bentham.Footnote ¹⁰⁸ It is also manifest in his adoption of the ‘basic power’ doctrine, discussed below. Yet on the other hand, Raz openly revolts against the apparent corollary of naturalism—external explanations of unity—for his theory is also clearly internalist. This is seen in the repeated comments throughout The Concept in which he disparages Austin precisely for neglecting internal relations between laws. “[I]t is impossible to grasp the nature of law,” Raz insists, “if we limit our attention to the single isolated rule. In a sense almost all the rest of this study [The Concept] is designed to convince the reader of the truth of this quotation.”Footnote ¹⁰⁹ The systematic nature of law, Raz explains, embodies at least part of its unified nature, and it also serves to distinguish it from adjacent systems of social ordering.Footnote ¹¹⁰ Focusing exclusively on external unity thus obscures law’s nature, as well as undermines our explanation of important legal phenomena.Footnote ¹¹¹ Finally, he commends Kelsen’s insistence on the validation of norms based on other norms as “a great improvement upon Bentham’s and Austin’s ideas,” and he incorporates validity chains—a clearly internal element—in his unity criterion.Footnote ¹¹²

The Concept, then, is both a proud link in the naturalist legacy, and the forerunner of a critique of one of its central commitments—the immediate relationship between laws and the factual criteria unifying them into a system. This duality is anything but trivial. Recall that, for Austin, sufficed it that law was unified externally; insofar as laws are enacted by one sovereign, the legal system exhibits all the unity necessary. The next phase saw Hart’s seminal account, rejecting the Command Theory for its inability to account for the continuity of legal systems, and stressing that ‘the key’ to jurisprudence lies in the unity between primary and secondary rules.Footnote ¹¹³ Yet Hart’s focus was the diachronic unity of law, i.e., its continued existence. Raz’s endorsement of Kelsen’s notion of internal relations should be understood as the continuation of Hart’s legacy, by way of highlighting the synchronic unity of law. Yet this undercuts a most fundamental tenet of classic naturalism, namely that law is a social, man-made phenomenon. For recall that a central aim of classic naturalists was to dispel the mysteries and enchantments of natural law, which served to hijack law from the people as well as to obscure its nature. Insofar as the internal unity of norms is put on the pedestal—authorizing the derivation of laws independent, at least partly, from the earthly enactments which are supposed to bring law about—law’s positive nature, at least as conceived by classic naturalists, might be slipping away. The rise of internal at the expense of external unity thus marks the culmination of a tectonic shift in modern positivist thinking.

We now turn to see how the conflicting tendencies interact in Raz’s early theory of unity. I argue, first, that the naturalist commitment colors Raz’s adoption of two of Kelsen’s most central doctrines; second, that this recasting of Kelsen’s theory distorts it; and, finally, that the same tendency prevents Raz from accounting for law implementation.

2. Between Austin and Kelsen

We start by presenting Raz’s early criterion of unity, the strands of which run through different parts of The Concept. It can be reconstructed as follows:

1. (1) A legal system consists of the first constitution and all the laws created, directly or indirectly, by the exercise of powers conferred by the first constitution;

2. (2) The basic power, directly authorizing this constitution, (a) is identified by not being created by any law, i.e., it is not conferred by another norm; and (b) is recognized as such by the courts;Footnote ¹¹⁴

3. (3) A law belongs to a legal system if and only if it is either part of the first constitution, or has been enacted by the exercise of powers directly or indirectly conferred by it, based on the doctrine of internal relations;Footnote ¹¹⁵ and

4. (4) An internal relation exists between laws if and only if one of them (a) is (part of) a condition for the creation of the other; or (b) affects the meaning or application of the other.Footnote ¹¹⁶

Raz’s is a mediated criterial model, combining internal and external explanations of unity. Externally, all the system’s laws have to be validated by the conferral of powers that ultimately depend on the basic power. Internally, all the laws that are not part of the first constitution are validated in recourse to it, through internal relations to other laws.

The criterion reflects Raz’s oscillation. On the one hand, following Kelsen, it puts a premium on the internal relations of laws in explaining the boundaries and the conceptual pattern of law. But on the other hand, it both curbs Kelsen’s understanding of internal relations and retains a strong Austinian flavor. This is seen in Raz’s commitment to naturalism which, at important points, entails centralized implications that fly in the face of Kelsen’s theory. The question, then, is whether Raz’s integration is tenable. We first examine the external part, then shift to the internal one.

1. Practical Reason and Norms

These problems, I believe, did not escape Raz. Nineteen years later, at the outset of Practical Reason, he maintains that the central task is—still—to explain what unifies norms into a system.Footnote ¹⁴⁵ He now zeroes in on the unique internal mechanics of normative systems, to put forward an impressive institutional theory of law. But a naturalist impulse still animates the analysis, reproducing difficulties similar to those discussed.

Legal systems, Raz argues, are the most important kind of institutionalized normative systems. These latter systems are characterized by three central features, which provide the first leg of Raz’s updated unity theory. First, they have a criterion of existence which does not require that all of their norms would be practiced, and which assigns “considerable weight” to the activities of officials and institutions.Footnote ¹⁴⁶ Second, all the norms of an institutionalized system are internally related to the norms setting up the norm-creating or norm-enforcing institutions of the system; accordingly, the rules of such systems are identified by their relation to the institutions which characterize them.Footnote ¹⁴⁷ Finally, the validity of norms belonging to such systems is conditioned by the system actually being practiced.Footnote ¹⁴⁸ The updated criterion thereby links the unity and the existence of the system, so that “[r]oughly speaking a norm belongs to a certain institutionalized system only if it was enacted by the organs of that system or is applied by them.”Footnote ¹⁴⁹

Based on this setup, Raz revisits the old problem of the primacy of either norm-creating or norm-applying institutions: To which of the two must a norm be related, to be part of an institutionalized normative system? Raz argues for the primacy of norm-applying institutions, particularly courts, which he dubs “primary” norm-applying institutions.Footnote ¹⁵⁰ Of interest here is his reasoning, which compares his theory with Austin and Kelsen’s. Again, ambivalence is present. On the one hand, Practical Reason represents an important development, towards a more decentralized model of authority. But on the other hand, since the updated criterion retains criterial commitments, it reinforces the distorted view of Kelsen.

Raz frames the question of the primacy of norm-creating or norm-enforcing organs as part of his discussion of “[s]ystems of a common origin.”Footnote ¹⁵¹ These have two versions: Hobbes and Austin’s version, and Kelsen’s version. The former defines a legal system as the set of all norms issued, directly or indirectly, by one legislator; the latter regards it as a set of all the norms deriving their legal validity, directly or indirectly, from one norm.Footnote ¹⁵² In keeping with his naturalist reading of Kelsen, Raz argues that despite several differences, both versions see every legal system as having a shared source: For Austin it is the Sovereign, for Kelsen—the Grundnorm. Such theories, Raz claims, cannot account for two major features of complex institutionalized systems: They fail to explain both their unity and their existence.

Focusing on unity, Raz claims that legal systems often include more than one ultimate source of legislative authority.Footnote ¹⁵³ No single norm can be said to confer powers on all legislators in a given system, because the scope and manner of exercising the different powers differ too much; there have to be at least two norms which do that. He gives the example of Britain, where the authority of Parliament is not derived from the common law, yet neither does the common law’s authority derive from Parliament. Essentially the critique is that theories of common origin assume too centralized an allocation of powers, an assumption which cannot hold for modern law. Legal systems cannot be explained by their common origin, then, and so both Austin and Kelsen’s theories must be rejected. Along with them, and without mention, the basic power doctrine, undergirding the early criterion, vanishes as well.

Two points should be noted. First, Raz replaces the basic power with the relation between primary institutions, the norms setting them up, and the norms applied by them. He relies solely on the rule of recognition as the fundamental apex of the system; though, unlike Hart, he allows that a system could have more than one such rule. In addition, he essentially retains his internal relations doctrine, and so while his updated criterion is still naturalist, relying on the coordinated action of primary institutions, it is much less centralized.Footnote ¹⁵⁴ The second point, however, is that it is ironic that Kelsen’s theory is rejected on grounds of its centralized character. Firstly, because, as was repeated time and again, the Pure Theory is simply not a ‘common origin’ theory. But secondly, even after foregoing the basic power, Kelsen’s theory is still far less centralized than Raz’s. It would thus be quite absurd to reject the Pure Theory on the pretext that it takes legal authority as wafting down from a single source, as if it were a criterial model. Moreover, the very creativity of law implementation under the Pure Theory means that for Kelsen, legislation and adjudication differ only quantitatively, not qualitatively; accordingly, the Pure Theory has no problem (epistemically) unifying all law-making authority under one Grundnorm.Footnote ¹⁵⁵

The first leg of the updated criterion grounded unity in the norms setting up norm-applying institutions, these institutions, and the norms they apply. To this claim Raz adds a second leg, by contrasting legal systems with “systems of absolute discretion.”Footnote ¹⁵⁶ In an institutionalized system, primary institutions combine norm-making and norm-application in a special way: They authoritatively determine normative situations in accordance with pre-existing norms.Footnote ¹⁵⁷ Notably, ‘authoritative’ here does not entail that a court can never err in determining a normative situation, but that its decision is binding even if mistaken. Yet whether or not an institution’s decision is mistaken, its powers must have been exercised by applying existing norms to the case. The presence of primary institutions with power to settle normative situations based on pre-existing norms indicates that the system provides for an institutionalized and authoritative way of resolving disputes. Systems of absolute discretion, on the other hand, include norm-applying institutions with unfettered discretion, which authoritatively decide disputes without recourse to any pre-existing standard; they are not even bound by their own decisions. In contrast, “[l]egal and similar systems … provide guidance for individuals,” based on the preexisting norms directed to norm-subjects.Footnote ¹⁵⁸ These norms guide behavior by equipping subjects with “rights and duties in litigation before the primary organs.”Footnote ¹⁵⁹ The corollary is that legal systems are coordinated systems of guidance and evaluation.

Does the complete updated criterion fare better in explaining law implementation? Unfortunately, the short answer is “No.” It is true that in the early parts of Practical Reason, the reader gets an impressive account of the mechanics of law based on the exclusionary nature of legal reasons. And the second leg provides important insight into the role of courts in Raz’s theory. Yet missing still are recognition of the necessity of interpretation to law implementation, and a discussion of the interpretative dynamics. These remain obscured in Practical Reason, and the work cannot in this sense be seen as an advancement over The Concept.

2. Between Authority and Interpretation

Surprisingly, things take a quite radical turn in Between Authority and Interpretation, Raz’s last book on the subject. I cannot here embark on a full discussion of the book. Instead, I shall confine myself to two remarks, venturing a somewhat inconclusive conclusion.

First, the main tenets of the updated criterion—relying on the internal relations between norms setting up primary institutions, the institutions themselves, and the norms they apply to subjects—remain intact. However, in the first sentence of Between Authority, we learn that “[g]eneral theories of law struggle to do justice to the multiple dualities of law. The law combines power and morality, stability and change, systemic or doctrinal coherence and equitable sensitivity to individual cases, among others.”Footnote ¹⁶⁰

Not only is this the first time Raz explicitly endorses coherence as part of his theory, but the quote also seems to suggest that interpretation now occupies center stage. And indeed, the third and last part of the book is dedicated to interpretation. Raz explains that interpretive action is central to law, and he also mentions the coherence of doctrine, though he does not explain if or how, in light of his internal relations distinction, legal interpreters can rely on coherence to derive legal conclusions in concrete cases.Footnote ¹⁶¹ He further refers to the fact that the pre-emptive nature of legal reasons is an upshot not of the operation of a single isolated rule, but rather

Should we infer that a judge deciding a case based on a clear rule may be inspired by the legal materials surrounding the rule? The answer is not altogether clear.

On the one hand, Raz stresses the necessarily interpretive nature of law as a coherence-based complex: “[M]any participants and close observers perceive the law as a complex web held together by subtle logic.”Footnote ¹⁶³ Accordingly,

What is more, the interpretive action facilitating such coherence has been understudied: “There are aspects of legal practice in many countries which have often been neglected by philosophers. … Prominent among those is the way the law is interpreted by the courts.”Footnote ¹⁶⁵

Does it not follow that greater leeway is accorded to interpreters? Not necessarily, because while Raz understands well that the aspiration to coherence goes hand in hand with interpretive leeway, he is reluctant to take the extra step of allowing such unrestrained interpretive dynamics. He claims that the difficulty is that in interpretive reasoning, the distinction between law application and law creation is obscured, and this undermines theories about the nature of law. This problem, he insists, does not plague only positivist theories:

Now Raz is correct that the difficulty has been misidentified to apply solely to positivist theories. But he is wrong to conclude that it afflicts any theory.

The problems that interpretation creates for legal theory—that of dissolving the dichotomies of making law and applying it, of what is part of law and what is not, and so on—primarily afflict theories that put a premium on content determination, viz., those that connect the authority structure of law to its content. The problem, in other words, is that despite highlighting the interpretive nature of law and the coherence of legal materials, Raz is unwilling to forego the guidance function. But if the law is to guide behavior it must do so uniformly, based on the moral considerations that it pre-empts. Interpretation must therefore be at least minimally standardized, and here Raz faces a problem: For it is very difficult, if possible, to tame the unruly interpretive horse.

Hence, Raz rightly notes that the difficulty also applies to Dworkin, and that accordingly his (Dworkin’s) theory cannot account for important legal phenomena. But unsurprisingly, he is silent about the Pure Theory. For if one, with Kelsen, relinquishes the presupposition that law guides behavior by predetermining content, or at least mitigates one’s expectations as to the possibility of such complete determination, many problems disappear. We then have no worry whether something is or is not part of law, for interpreters may draw on whatever content they deem relevant; and we care little if their activity creates law or merely applies it. We simply say that they do both, and that, in any case, the distinction between the two is exaggerated. The difficulties are mitigated, in other words, because the ‘subtle logic’ holding the web of law together turns out to be formal, not substantive.

The real issue, then, is whether we are ready to subscribe to a purely posited view of law, which takes it as a formal construct of interrelated authorizations, rather than ties law in through content. The question for theories such as Raz’s, then, is whether, at every instance of its (re)making, any content truly can be law. Clearly, Dworkin has no problem answering in the negative.Footnote ¹⁶⁷ But can a self-proclaimed positivist resort to a similar answer?

The suggestion might strike many as unpalatable. If law cannot provide standardized guidance, if it really is unified only by virtue of its manner of issuance, why would we even want law? What is the point of having, and theoretically expounding, a social institution which, so far as governing social relations and solving coordination problems go, is all but random? These are difficult questions, but I think that they overstate the difficulty. For Kelsen argues not that content determinacy is completely unattainable, but that we must be more realistic about its prospects. Accordingly, his unity criterion does not provide a carte blanche to any implementation dynamics whatsoever. It is quite obvious that there is a limit on one’s ability to epistemically interrelate norms, and if a certain assemblage of norms shows no connection whatsoever, Kelsen would hardly claim that it can be unified. Rather, he seems to have held that complete predetermination—in the sense of controlling the most intimate details—of any normative situation in advance is probably the result of wishful legal thinking. So while the law can provide some guidance, amongst other functions that it may secure, it cannot be reduced to its guiding function; it cannot be construed as necessarily and invariably achieving this aim, come what may.

Let me stress that the point is not to argue that determining legal content is never possible, nor is it to argue that Kelsen can iron out all the quirks in his own theory. Rather my purpose is to flag the difficulty that content predetermination poses, and to insist that, in contrast to this naturalist assumption, Kelsen has at least attempted to provide an alternative view which frees legal theory from the predicament of accounting for predetermining content. This may not be a neat view of law. It may undermine many ideals we would like to ascribe to this institution, democratic ones included. But it may well be the only coherent way to think about its unity.

This leads to the second point, which harkens back to an admittedly cryptic claim in the Introduction, and which we can introduce as our final question: What is the general trajectory of Raz’s thought? While the later developments evidently drive Raz further away from Austin, would it be accurate to describe the updated criterion as bridging the gap between Raz and Kelsen? The answer, it seems, is yes and no. On the one hand, Raz is willing to admit heretofore unheard-of elements such as doctrinal coherence, as well as to rely more heavily on the notion of a “legal point of view”—both of which seem congenial to Kelsen’s epistemic, normative understanding of law.Footnote ¹⁶⁸ But on the other hand, Raz’s updated thought retains its external tendency; only this time, it is closer to morality. Raz now argues that law is part of morality;Footnote ¹⁶⁹ that, when legitimate, it provides reasons because it “instantiates certain background moral reasons;” and that, in such cases, “[law] is an applied moral system, always to be developed along moral lines.”Footnote ¹⁷⁰ True, the law retains independence to the extent that its pre-emptive force relegates moral (or otherwise normative) discourse from the application of legal rules. But he also makes clear that the separation is in no way hermetic; legal discourse, Raz claims, is moral discourse. It goes without saying that such claims are anathema to the Pure Theory, which vehemently separates the legal from the moral ‘ought,’ and which repeatedly warns against the assimilation of the ideal of law into that of morality, namely, justice.Footnote ¹⁷¹

It follows that Raz’s theory remains externally grounded—albeit morally no less than factually; rather centralized—though significantly less than Austin or Hart’s theories; and hesitantly interpretive—though it does allude toward interpretation and doctrinal coherence as conceptual parts of law. The only truly unequivocal commitment, beyond these dualities, is to the claim that the law, conceptually, guides the behavior of subjects.

In the final analysis, then, the true divide between positivist theories turns on the nature of law as an institution that must be able to guide behavior. For this reason, Raz’s updated theory comes closer to Dworkin’s than to Kelsen’s. And so the latter’s exhortations, that the modeling of law after morality collapses positivism into natural law may, after all, be vindicated.Footnote ¹⁷²