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1 Introduction
In a telling passage in his treatise of 1945, General Theory of Law and State, Hans Kelsen appears to depart from his traditional concept of law. The traditional concept is “defined” by Kelsen in terms of the possibility of coercion as set by the reconstructed legal norm. He now appears to be replacing this concept of law with another:
if one looks upon the legal [system] from the dynamic point of view … it seems possible to define the concept of law in a way quite different from that in which we have tried to define it [thus far]. [In particular, it seems] possible to ignore the element of coercion in defining the concept of law.1
According to this view, Kelsen continues :
law is anything that has come about in the way the constitution prescribes for the creation of law…. [For example, an] important stage in the law-creation process [comprises] the procedure[s] by [means of] which general norms are created, that is, the [process] of legislation.2
In the latter passage, Kelsen is clearly hinting at the Stufenbaulehre or doctrine of hierarchical structure that he took over lock, stock, and barrel from his gifted, and much neglected, colleague, Adolf Julius Merkl.3
Do we indeed have, then, two competing concepts of law in Kelsen’s legal theory, the earlier concept turning on coercion, the later concept reflecting the process of law creation? I think not. On the contrary, as I shall argue, the two concepts of law to which Kelsen refers here are in fact two sides of a single concept of law or – in language that Kelsen adopted from Wilhelm Wundt and the Baden Neo-Kantians – two standpoints, two points of view (Betrachtungsweisen),4 that are incorporated into a single concept of law. Earlier, there is a static or ex post point of view, where the focus is on the issued legal norm and thus on coercion, and, later, there is a dynamic or ex ante point of view, antedating the issuance of the legal norm and thus emphasizing the process of law creation. These points of view are combined in a single concept of law that reflects both product and process, or – in the...