Visualization of Hans Kelsen s Pure Theory of Law

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1 Visualization of Hans Kelsen s Pure Theory of Law Vytautas Čyras Vilnius University Vytautas.Cyras@mif.vu.lt Friedrich Lachmayer University of Innsbruck Friedrich.Lachmayer@uibk.ac.at Guido Tsuno Chuo University Guido.Tsuno@mac.com Abstract. Hans Kelsen s Pure Theory of Law is the most prominent and influential legal theory for continental law systems. Kelsen s book contains only text neither logical notation nor pictures. Despite of this, an impression is that Hans Kelsen himself had very clear imagination. In our contribution we make an attempt to start visualizations of his theoretical models. This is important for legal informatics. Explicit visualizations of the structures of law and their theoretical representations are important for the development of legal ontologies. In addition to theoretical importance, visualizations contribute to understanding the law which is expressed in nontextual mode. In particular, legal machines take non-textual effect in legal situations. Kelsen created a paradigm of an up-to-date legal theory so that the visualizations of his ideas bring out an interesting way to understand the pure theory of law. Visualizations proposed in this paper aim at cognition and hence serve as models. Keywords. Legal visualization. Legal informatics. Interpretation of legal terms. Is and ought. Soft visualization. 1. Introduction AI & Law attempts to formalise law, produce logical structures of law and consequently make use of computers. Applying formal notations is a big part of the mainstream. This can be demonstrated by an increased number of JURIX 1 annual conference papers which make use of formal notations. Often formal notations relate to details only. This is because textual systems of law contain details that can be brought out adequately and precisely. On the other hand, on a purely theoretical level the need for contexts can rise, in particular, for the context of legal theory. Here Hans Kelsen s Pure Theory of Law can be considered as a theory on the background. In this respect a connection between the Pure Theory and AI & Law is provided. Hajime Yoshino also concerns Kelsen deliberately. When it comes to visualizations, besides automatic visualizations, see e.g. (Täks et al. 2011), there are inherently intuitive visualizations. Hence, strong visualizations come alongside weak visualizations. Both have their functions. A problem of visualizations is that their syntax is not uniformed. However, this gives the advantage of freedom in shaping. Visualizations can make the context increasingly obvious. This is important to bring AI & Law into action. Visualizations can serve as maps for the orientation in textual landscapes of law. Thus the benefits of AI use are increased. 1 The foundation for legal knowledge based systems; see 1

2 Hans Kelsen is one of the most studied legal philosophers. His texts are of great linguistic and intellectual intensity and combined with a very clear pre-textual imagination. Reading Kelsen is a must during the studies of law. However his imagination is not easy to grasp from the first reading. A layperson may also wish to find a concise conceptual model of law. Legal informatics needs models in a form which is used for knowledge representation in informatics. Visualization is a middle way to graphical models. This paper divided into several parts. Section 2 is devoted to the significance of the Pure Theory of Law in the historical formation, namely, taking over from the natural law. Section 3 distinguishes between the Is (Sein) and Ought (Sollen) realms. Section 4 describes different kinds interpretations of facts, legal texts (content), and legal acts. Section 5 is devoted to construction and Section 6 to purification. 2. Historical position Kelsen wrote two editions of the Pure Theory of Law: the first edition 1934 and the second A key feature of the Pure Theory is a paradigm change of legal theory and proposing a new juridical methodology. Kelsen introduced new concepts and terms, in particular, norm, basic norm, the hierarchy of norms, legal act, etc. Kelsen stopped the scientific discussion and took over from the natural law doctrine: The denial of the duality of Is and Ought implicit in the concepts of entelechy and practical reason is an essential element of the doctrine of Natural Law (Kelsen II; p. 70). Here we recall René Marcic (1971) as one of the last important thinkers of natural law. Legal logic and legal informatics succeeded in the research. A scientific mainstream after Kelsen was the legal logic invented by Georg Henrik von Wright with his article on deontic logic (1951). Other important exponents of this direction are Ilmar Tammelo, Ota Weinberger, Jürgen Rödig and Hajime Yoshino. Since 1970 s, legal informatics exponents are Herbert Fiedler, Leo Reisinger, Alfred Schramm, Erich Schweighofer, Roland Traunmüller, Maria Wimmer, just to mention a few. To characterize Kelsen s position, we invoke Stanley L. Paulson s formulation on resolving the antinony between the reductive thesis and the normativity thesis. In the introduction to 1992 translation of Reine Rechtslehre first edition 1934, Paulson expresses a view of how Kelsen distinguishes his own position from those of the tradition (Kelsen 1992, p. xxviii): (i) Is the normativity thesis derivable from the morality thesis? The tradition: yes. Kelsen: yes. (ii) Turning the question around, is the morality thesis derivable from the normativity thesis? The tradition: yes. Kelsen: no. (iii) Is the separability thesis derivable from the reductive thesis? The tradition: yes. Kelsen: yes. (iv) Turning the question around, is the reductive thesis derivable from the separability thesis? The tradition: yes. Kelsen: no. Paulson finds that Kelsen s answers to questions (ii) and (iv) suggest the hypotheses which he begins the normativity thesis without the morality thesis, and the separability thesis without the reductive thesis. We can symbolize this: NT\MT ST\RT; see Fig. 1. 2

3 Law and fact Law and morality Morality thesis, MT (inseparability of law and morality) Separability thesis, ST (separability of law and morality) no ativity thesis, NT (separability of law and fact) Natural law theory no Kelsen s Pure Theory of Law: NT\MT ST\RT Reductive thesis, RT (inseparability of law and fact) Empirico-positivist theory of law Figure 1. Resolving the antimony. Adapted from Paulson s introduction (Kelsen 1992, p. xxvi, xxviii-xxix). 3. Is and Ought Kelsen uses a categorical distinction between Is and Ought; see (Kelsen 1967, 3ff.): An ought cannot be reduced to an Is, or an Is to an Ought; and so an Is cannot be inferred from an Ought, or an Ought from an Is. (Kelsen I; p. 58) The duality of Is and Ought coincides with that of reality and value/ Thus no value can be derived from reality, and no reality from value. (Kelsen I; p. 61) The Is realm is associated with causality and the Ought with imputation. The irreducible Is-Ought duality corresponds to a very old mythical and religious duality between the Earth and Heaven, in other words, nature and spirit. In Fig. 2 we visualize the Is with a horizontal plane and the Ought with a vertical one. Is/Ought terminology was used already by Pufendorf; see his impositio. Pure Theory of Law as theory aims at cognition and therefore appears on a metalevel (Kelsen 1967, 1). Other elements such as the system of terms form a modal indifferent substratum and appear on the metalevel, too. System of terms: thesaurus, taxonomies, ontologies Metalevel Pure Theory of Law Rules Stage Ought (Sollen) legal meaning (Sinn) E.g. laws, decisions, etc. Is (Sein) E.g. papers, verbal formulations, etc. Content formulations in words, etc. Figure 2. Distinguishing between the Is and Ought worlds. The realm of Is is the primary layer for the actors actions. It can be visualized with the stage metaphor. Not only persons are among the actors but also requisites, for instance, things and, moreover, the actual substrates of speech acts and legal acts such as the paper of statutes and judgments. Verbal formulations are assigned to the Is even in the case the speech content is normative. The verbal formulations of Ought the content are 3

4 distinguished from the legal Ought that has a specific legal meaning (sense, Sinn, Deutung, rechtliche Bedeutung). The next layer, that of rules, is the realm of Ought. It is visualized vertically. According to Kelsen it deals with the legal meaning, namely, a specific legal significance. The Ought comes up to the actual substrate, the Is. Legal acts of the laws, judgments, the private law, e.g. private contracts, etc. constitute the Ought as a regulative background of the Is stage. Material artefacts such as paper documents and verbal formulations appear in the Is world. Their legal meaning appears in Ought. The Is world is factual it comprises facts, for example, the existence of a certain instance of table. The Ought is connected with culture. The notion of table appears in Ought. Pure Theory of Law comes up as next layer and namely as a scientific descriptive metalayer above law, the sense sphere of Ought. The legal science shall be descriptive in principle to remain pure. But the Pure Theory of Law, though admittedly on the top layer, also contains prescriptive elements, namely, the command to legal science to include only descriptive value-free sentences. Kelsen spoke (1991, 16II) about modally indifferent substrate (modal indifferentes Substrat) that constitutes a system of terms built of terms contained in law. Continuing these beginnings, one can arrive to the modern system of terms that comprises thesaurus, taxonomies and ontologies. Science has reached in Kelsen a historical peak, however did not leave standing and in multiple phases distinctively developed further. Ontologies can be viewed as the most modern development of the system of legal terms; see e.g. (Casellas 2008). Causality and imputation. Kelsen devotes separate chapters to explain the distinction; see e.g. (1991, ch. 7). Imputation links a condition and a sanction brought about by a general moral or legal norm. Computer scientists are accustomed to the axiomatic method. Therefore they need special efforts to comprehend when they encounter a principle which is different from the principle of causality expressed in the natural laws formulated by the natural sciences. These are two different, but analogous functional connections: The difference between the two is this: imputation (i.e. the relation between a certain behavior as condition and a sanction as consequence, described by a moral or legal law) is produced by an act of will whose meaning is a norm, while causality (i.e. the relation between cause and effects described by a natural law) is independent of any such intervention. (Kelsen 1991, ch. 7 p. 24) Central and peripheral imputation. Formulating the concept reveals subtleties. Paulson writes about the objectivity motif in Kelsen s Pure Theory of Law and calls Kelsen s thesis the nomological normativity thesis. Kelsen distinguishes between central imputation and peripheral imputation: [Central imputation] is an entirely different operation from the peripheral imputation mentioned earlier, where a material fact is connected to another material fact within the system, that is, where two material facts are linked together in the reconstructed legal norm. (Kelsen 1992, p. 50-1) Paulson proposes the following formulation of peripheral imputation: Formulation II. If an act of a certain type takes place (and if ) then that act is treated as liability ascribing. (Paulson 2011, p. 18) Paulson analyses imputing liability to the act rather to the actor and notes that the character of the liable party actor, surrogate, or collective body is a contingent factor, a question of legal policy, not legal science. 4

5 In any case it is precisely this necessary relation between act and liability that represents the core of what I am calling Kelsen s nomological normativity thesis. The relation is nomological in being necessary or law-like, and it is normative in being non-causal. (Paulson 2011, p. 19) Paulson concludes: Where the antecedent condition obtains, this marks the imputation of liability to the act, a necessary relation. Where the ascription of liability to a person is made, this marks a change in that person s legal position. The change, Kelsen insists, is a normative change, not a causal change. (Paulson 2011, p. 21) No long series of imputation. A difference of causality and imputation is that by the very nature of causality the chain of cause and effect is endless in both directions. Contrary, [t]he imputation series does not have an unlimited number of members as the causal series does: basically it has only two members. (Kelsen 1991, ch. 7 p. 24) Hence a network of causes and effects can be depicted as a graph with two types of edges, denoting causality and imputation (Fig. 2a). Long series of causality may appear, but not those of imputation. Legend: Cause Effect material fact, state of affairs Legal condition Legal consequence, the legal position Figure 2a. A network of causalities (thin edges) and imputations (thick). Different network patterns could be employed to formalise distinguished theories of causality, fault and legal responsibility such as sine qua non and necessary and sufficient condition (Hart & Honoré 1985). 4. Interpretations This section concerns two groups of concepts: (a) facts, norms and texts, and (b) construction and deconstruction. Kelsen describes five (3+2) different interpretations regarding facts, norms and legal texts. We divide these interpretations into two groups (3+1): 1. The interpretation of factual reality (Is, Sein). Facts are the entities of the Is-world and are transformed into the legal meaning (sense, Sinn; Ought, Sollen); 2. The interpretation of legal texts (content). Kelsen describes the interpretation of the content of legal texts and the transformation in a new version of textual understanding. This is associated with the procedure of subsumption; 3. The interpretation of legal acts (Rechtsakte). This is about the interpretation of normative sources (normative texts) and their transformation into valid legal acts (e.g. laws). The basic norm is regarded in this context. In this paper we express the main argument against the Kelsen s basic norm concept: such a (scientific) basic norm delegates a scientific qualification but no legal validity; 4. Construction. 5

6 4.1. The Interpretation of Factual Reality A norm (that is from the Ought world) functions as a scheme of interpretation of a fact (from the Is world): The external fact whose objective meaning is a legal or illegal act is always an event that can be perceived by the senses. However, this event as such, as an element of nature, is not an object of legal cognition. What turns this event into a legal or illegal act is not its physical existence, but the objective meaning resulting from its interpretation. The specifically legal meaning of this act is derived from a norm whose content refers to the act; this norm confers legal meaning to the act. (Kelsen 1967, 4a p. 3) Hence institutional facts are interpreted according to the Ought (Fig. 3). The interpretation is erected on both the Is and Ought. Here Pufendorf s impositio can be recalled. See also (MacCormick & Weinberger 1992, p ) for an institutional theory of facts. Modally indifferent substrate Terms Situation, facts Legal meaning (sense, Sinn ) Interpretation Reaction Interpretation scheme Figure 3. The interpretation of the factual reality. It should be noted that a paper document of a draft law (bill) as such has no meaning. A legal meaning is obtained when it is legitimated, e.g. by a parliamentary procedure. The interpretation above has to be supplemented with the imposition of meaning; see Fig. 4. 6

7 Basic norm Legal norm Objective meaning (Sinn) Not interpreted facts Subjectively interpreted facts Subjective interpretation (Deutung) Subjective meaning (Sinn) Objectively interpreted facts Figure 4. Imposing the meaning to facts. Firstly, facts, i.e. not interpreted facts, appear on the Is-stage. Secondly, subjectively interpreted facts on the Is stage are subject to subjective meaning (Sinn). Subjective interpretation (Deutung) is on the mind layer. Thirdly, objective interpreted facts on the Is-stage have objective legal meaning (Sinn) with respect to a legal norm in the Ought world: is the meaning of an act by which a certain behaviour is commanded, permitted or authorized. (Kelsen 1967, 4b p. 5) The command of a gangster has the same subjective meaning as the command of an income-tax official. But only the command of the official, not of the gangster, has the meaning of a valid norm, binding upon the addressed individual. (Kelsen 1967, 4b p. 8) Kelsen explains the subjective and objective meaning of the act of commanding (we illustrate this in Fig. 4a): If the command is not empowered, then this is merely the subjective meaning of the act of commanding, that is, it is the meaning the act of commanding has from the point of view of the commander and not from the point of view of the addressee or any third party. Only an empowered command also has the objective meaning of Ought, that is, only an empowered command is a norm binding on the addressee, obligating him to act in the prescribed way. (Kelsen 1991, ch. 8.v p. 27) 7

8 Act of commanding No legal meaning, no norm Act of commanding Legal meaning Commander Addressee Commander Addressee Third party (a) (b) Figure 4a. The subjective (a) and objective (b) meaning of the act of commanding. Legal norms conform to the basic norm: Such a presupposition, establishing the objective validity of the norms of a moral or legal order, will here be called a basic norm (Grundnorm) (cf. 34a). Therefore, the objective validity of a norm which is the subjective meaning of an act of will that men ought to behave in a certain way, does not follow from the factual act, that is to say, from an is, but again from a norm authorizing this act, that is to say, from an ought. (Kelsen 1967, 4b p. 8-9) The basic norm concept appears at the metalevel, the Pure Theory of Law. Identity of two modally indifferent substrates. Kelsen (1991) devotes Subsection 16II the idea of behaviour which agrees with a norm. The idea is expressed in the title: Identity of the modally indifferent substrate of the behaviour decreed to be obligatory in the norm with the modally indifferent substrate of the behaviour existing in reality (p. 60). Kelsen illustrates with the fact A pays his gambling debts and the norm A ought to pay his gambling debts. The content of the Is and the content of the Ought is the modally indifferent substrate payinggambling-debts. It is invested both with the mode of Is and the mode of Ought. This explains a formalisation that a behaviour existing in reality, B F, agrees with the behaviour B N in the norm. The answer: the identity relationship between two modally indifferent substrates. We can formally represent this B F = B N ; see Fig. 4b. Ought Behaviour B N Modally indifferent substrate Identity. The relationship being-in-accordance-with-duty Fact Is Behaviour B F Modally indifferent substrate Figure 4b. Behaviour which agrees with a norm is formalised with the identity B F = B N. 8

9 Subsumption procedure. To model the subsumption procedure, we can apply conceptual modelling formalisms which are used in computer science, object-oriented analysis and systems development, namely, the general relationships is-a, instance-of and part-of. Suppose the fact that my-door is open and the norm N The doors ought to be closed. The norm can be formalised with the following modus ponens rule: if x is an instance of Door, then x ought to be closed. Formally, x x Door O closed(x), where O is the deontic operator and closed a predicate. The situation (fact) with the instance my-door is from the Is world. In order to interpret it, the norm (with the door concept Door) from the Ought world has to be chosen. Then my-door is matched with Door, formally match(my-door, Door). This can be simplified and expressed with a truth statement instance-of(mydoor, Door) or my-door Door. This truth statement is from the Is world. A graphical notation is shown in Fig 5. A duty which is conferred on me, to close my-door, is from Ought. In the Is world I can decide to leave my-door open thus violating the norm. Door instance-of my-door Figure 5. Graphical notation of the instance-of relationship, instance-of(my-door, Door) or my-door Door. This visualizes that my-door (from the Is world) is matched with the Door concept within N which is from Ought The Interpretation of Legal Texts The second interpretation is relative to the classical interpretation of the content of legal texts. The subsumption procedure is concerned. The terms which are found in the legal text appear on the metalevel. The terms are modally indifferent substrate (Fig. 6). On the function of application of law, adjudication by a court, see e.g. (Kelsen 1967, 35 g). 9

10 System of terms: thesaurus, taxonomies, ontologies Terms Modally indifferent substrate Legal text Terms Interpretation of the content,,... Situation, facts Meaning (sense, Sinn ) } Subsumption Decision Figure 6. The interpretation of legal texts The Interpretation of Legal Acts (Rechtsakte) Legal acts are interpreted with respect to the basic norm (Fig. 7). A thin arrow represents a transition from a normative text, a substrate that is in the Is world, to its legal meaning, that is in the Ought. Kelsen speaks about different degrees of the relation called correspondence between two norms and the validity of a lower norm which founded on the validity of a higher norm: A positive moral or legal order can never conflict with its Basic. A conflict is always possible between Natural Law and a positive moral or legal order. (Kelsen 1991, ch. 59.ii p. 259). The authors of this paper maintain that Kelsen views the basic norm as a scientific product that has scientific meaning but no normative validity. Thus the main argument against Kelsen s basic norm concept is that such (scientific) basic norms can only delegate a scientific qualification but no legal validity. We think that this is a problem a drawback of the Pure Theory. The scientific significance of the basic norm comes together with normative validity. 10

11 Is Ought Basic norm concept Substrate: normative text Meaning: valid legal act Interpretation scheme Hypothesis Figure 7. The interpretation of legal acts. On the basic norm. Speaking about validity, Kelsen provides the example of the basic norm of Christian morality and holds that only a norm can be the reason for the validity of another norm : It is a basic norm, because nothing further can be asked about the reason for its validity, since it is not a posited norm but a presupposed norm. (Kelsen 1991, ch. 59.i.C p. 255) Kelsen holds that the Basic is not a positive norm, but a merely thought norm (i.e. a fictitious norm), the meaning of a merely fictitious, and not real, act of will : The cognitive goal of the Basic is to ground the validity of the norms forming a positive moral or legal order, that is, to interpret the subjective meaning of the norm-positing acts as their objective meaning (i.e. as valid norms) and to interpret the relevant acts as norm-positing acts. This goal can be attained only by means of a fiction. (Kelsen 1991, ch. 59.i.D p. 256) On validity. Niklas Luhmann devotes a separate chapter to the concept of validity. He notes that validity is not a norm and adds: If one follows Kelsen the question is most often asked the other way around: what is the special status of a basic norm in relation to validity extra-legal, hypothetical, moral? (Luhmann 2004, p. 126) On the basic norm and the transcendental argument see Stanley L. Paulson: The distinction between is and ought implies altogether separate tracks for establishing, respectively, the truth of empirical claims and, inter alia, the validity of legal norms. Tying the distinction between is and ought to the normativity thesis in the manner of methodological dualism is not to deny the familiar distinction between is and ought associated with the separability thesis. Where the distinction is invoked on behalf of the normativity thesis, ought flags legal norms, and is gives expression to facts; where it is invoked on behalf of the separability thesis, ought flags norms of morality, and is gives expression to valid, i.e. existing, legal norms. (Kelsen 1992, p. xxxii) 5. Construction Next is the structural interpretation involving scientific notions where Kelsen was very creative. 11

12 5.1. Double-norm (Doppel-) Kelsen makes a transition from the hypothetical norm concept to categorical norm; see (Kelsen 1967, 25) and Fig. 8. Hypothetical norm Categorical norm Condition Reaction To Do if then if then it is commanded to commanded Figure 8. Hypothetical and categorical norms. The difference is not so easy to grasp and formalise in terms of (i) imputation and (ii) formal logic. Therefore Kelsen devotes chapter 5 to explain this: The difference between categorical and hypothethical norms is the difference between norms which decree that a certain behavior is obligatory unconditionally and those which decree that a certain behavior is obligatory only under certain conditions. (Kelsen 1991, ch. 5 p. 19) Prosecutor A can demand that judge B punish C, who (in A s opinion) committed theft; but the judge, who is willing to punish thieves, can reject the prosecutor s demand because the ought-to-punish-c is valid for the judge only if it his opinion that C has committed theft, and he is of the opinion that he has not. He can decide: C is not to be punished. What is lacking in this case is the condition for the oughtto-punish. (Kelsen 1991, ch. 5 p. 21) Kelsen summarizes: All norms are valid merely conditionally. (1991, p. 21) To explain the difference, Manfred Moritz s words are used: If there is a conditional imperative If it rains, go home!, we can express the parallel judgment for instance in the following way: It is commanded to go home if it rains. It should not be formulated so as to say It it rains, it is commanded to go home. The judgment which is parallel to a conditional imperative does not state under which conditions the action is commanded, but under which conditions the action ought to be performed. (Kelsen 1991, note 24 p. 290) Kelsen adds: The imperative is conditional, not because it is subject to a condition [bedingt], but because it sets a condition [bedingend]. (p. 290) Other norm concepts can also be proposed, see e.g. that of Luhmann (Fig. 9). Condition Reaction Finality Figure 9. Another concept of norm (Luhmann 2004). 12

13 In the chapter devoted to primary and secondary norms, Kelsen views a general legal norm as a combination of them, a double norm: [A] combination of two norms one of which decrees to be obligatory a certain behavior of the legal subject, and the other the performance of a specific coercive act on the part of the legal organ in the event of a violation of the first norm. I have called the latter norm the primary norm, and the former the secondary norm. (Kelsen 1991, ch. 15 p. 56) We show this in Fig. 9a. Double general norm E.g. Secondary norm O A People are to refrain from committing theft; Primary norm if A then O sanction if a court finds that someone has committed theft, this judge is to posit an individual norm which decrees that this person is to be imprisoned Figure 9a. A double norm (Doppel-) is a combination of the secondary and the primary norm Hierarchy of s This section presents a bit more modern version of what Kelsen wrote. Constitution, law, statute and decision form a hierarchy; see (Kelsen 1967, part V, especially 35). This expresses governing by one state; see Fig. 10. Kelsen speaks about a hierarchical structure of norms: whose highest level is the constitution whose validity is founded on the presupposed Basic, and whose lowest level is made of the individual norms decreeing particular concrete behavior to be obligatory. (Kelsen 1991, ch. 59.i.F p. 258) EU primary law and EU secondary law form another hierarchy with the international law being above. Private treaty appears on the bottom. Basic norm is above all and also in the mind. 13

14 Basic norm International law EU primary law Constitution EU secondary law Law Statute Decision Private treaty Figure 10. A hierarchical structure of norms Monism The legal order exclusively consists of norms (Fig. 11). Legal definitions are part of other norms. Definition (a) (b) Figure 11. (a) The legal order consists of norms. (b) Legal definitions are part of norms. Another concept is that there are other legal elements such as indicative legal definitions, legal signs, etc. (Fig. 12). Legal norm Indicative legal sentence Legal sign Figure 12. Another concept of the legal order: apart from norms there are other elements. A formalisation of the legal order with one notion, the norm, makes the model very pure. This is useful to speak on a high philosophical level. However, on lower levels of discourse, more notions would be helpful. For example, legal theory distinguishes between norms to-do, norms to-be (see e.g. Sartor), etc. Other classifications of norms are also possible. In mathematics a formal theory can be formalised with a small number of axioms. Adding an axiom makes the theory more specific and deleting more abstract. 14

15 6. Purification a Deconstruction Kelsen s approach to purification rests on a critical interpretation of other theories. This is a deconstruction of the traditional legal theory. Personality is a traditional key concept. In the Pure Theory of Law a person is only a quantity of rights and duties (Fig. 13). Traditional concepts of personality PTL: person as a quantity of rights and duties Person Person Figure 13. A purification of the personality concept. A traditional concept of institution comprises state, etc. In the Pure Theory of Law, institutions are only sets of norms (Fig. 14). Therefore Kelsen devotes a separate chapter VI to law and state (1967, 36 ff. esp. 41b). Traditional concepts of institutions PTL: institutions as norms Entities like state Figure 14. A purification of the institution concept. An effect of the Pure Theory of Law is also that Kelsen put a new interpretation on traditional terms. State and person are examples where this arises. This is not new in the history of jurisprudence. Both happen: on the one hand adoption and, on the other, re-interpretation of previous terms and creating completely new terms. Guido Tsuno investigates these issues at Chuo University in Tokyo within the project about legal lexicon; see (Tsuno 2011). 7. Apotheosis Kelsen s work entails a paradox. He tried to deconstruct and unmask the former juridical system especially the personification of the state with a paternal face. However, on the other hand he tried to make a personification of his own theory an apotheosis with a female virgin image named Pure Theory of Law (Fig. 15). There are some rhetorical indications in this direction (Lachmayer 1984). 15

16 Pure Theory of Law Personification of jurisprudence Figure 15. A personification of Kelsen s theory an apotheosis with a virgin female image. 8. Conclusions The centerpiece of PTL is concerned in this paper and margins are set aside. Our thesis is that PTL deals with the middle layer. It can also be shown that legal logic is assigned to the higher layer of abstraction, PTL to the middle one, and individual decisions and laws to the lower layer. A relation to legal informatics is also an issue. Ontologies are assigned to the higher layer. Kelsen s works are not written as textbooks for freshmen. To achieve deep understanding, studies of law could help. It is also advised to read other books on legal theory. We hope that the paper can reach beyond legal education. References 1. Casellas N. (2008) Modelling legal knowledge through ontologies. OPJK: the ontology of professional judicial knowledge. PhD thesis, Autonomous University of Barcelona, 2. Čyras V., Lachmayer F., Tsuno G. (2011) Visualization of Hans Kelsen s Pure Theory of Law. Yoshino H., Araszkiewicz M., Walker V.R. (eds.), Proceedings of the Fundamental Concepts and the Systematization of Law, Workshop at JURIX 2011, Vienna, pp Hart H. L. A.; Honoré, Tony (1985) Causation in the law. 2nd ed. Clarendon Press, Oxford. 4. Kelsen H. (2000) Reine Rechtslehre, 2. Auflage. Deuticke, Wien (1960); Verlag Österreich, Wien. 5. Kelsen H. (1967) Pure theory of law. 2 nd ed., Max Knight, trans. University of California Press, Berkeley. 6. Kelsen H. (1992) Introduction to the problems of legal theory. A translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Bonnie Litschewski Paulson and Stanley L. Paulson trans. Clarendon Press, Oxford, reprinted Kelsen H. (1991) General Theory of s. Michael Hartney, trans. Clarendon Press, Oxford. 8. Lachmayer F. (1984) No Junsui Hogaku ni okeru Shujiteki Seibun [in Japanese] (Rhetorical Components in the Pure Theory of Hans Kelsen), in: Ho no Riron (Legal Theory), vol. 4, pp , Hiroshi Takahashi trans. 9. Luhmann N. (2004) Law as a social system. Oxford University Press. Klaus A. Ziegert trans. 10. MacCormick N., Weinberger O. (1992) An institutional theory of law: new approaches to legal positivism. D. Reidel Publishing Company, Dordrecht, Holland. 11. Marcic R. (1971) The right to resist as an attribute of human dignity. University of Sydney, Faculty of Law, Dept. of Jurisprudence and International Law, Institute for Advanced Studies in Jurisprudence, Sydney. 16

17 12. Marcic R., Tammelo I. (1989) Naturrecht und Gerechtigkeit, Eine Einführung in die Grundprobleme [in German] (Natural Law and Justice, An Introduction to Fundamental Problems). Series: Rechts-, Sozial- und Wirtschaftsphilosophie, vol. 9, Peter Lang Publishers, Frankfurt/M. 13. Paulson S. L. (2011) A prelude to Hans Kelsen s concept of law. In: Hajime Yoshino, Michał Araszkiewicz, Vern R. Walker (eds.) Proceedings of the Fundamental Concepts and the Systematization of Law Workshop at JURIX 2011 in Vienna. 14. Täks E., Võhandu L., Lohk A., Liiv I. (2011) An experiment to find deep structure of Estonian legislation, in: Legal Knowledge and Information Systems, JURIX 2011: The Twenty-Fourth Annual Conference, K. M. Atkinson (ed.), IOS Press, pp Tsuno G. (2011) Repertorium Aureum, Rechtslexika im Geltungsbereich des Ius Commune und im 19. Jahrhundert [in German] (Legal Lexicon in the Scope of Ius Commune in the 19th Century). Vico Verlag, Frankfurt/M. 16. von Wright G. H. (1951) Deontic logic. Mind, New Series, vol. 60, no 237 (Jan. 1951) pp Yoshino, H. (2011) The systematization of law in terms of the validity. Proceedings of the Thirteenth International Conference on Artificial Intelligence and Law (ICAIL), AMC, Baltimore, pp