Wrongs and Sanctions in the Pure Theory of Law

• Published date: 01 September 2022
• Author: Luís Duarte D’almeida
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/raju.12356

Ratio Juris. Vol. 35 No. 3 September 2022 (247–257)

Wrongs and Sanctions in

the Pure Theory of Law

LUÍS DUARTE D’ALMEIDA

Abstract. This short paper addresses a well- known difficulty in the Pure Theory of Law: the

definition of a legal wrong. Kelsen was unable to offer a suitable one, critics say. I agree. But

the critics misdiagnosed the problem, and prescribed for it a fruitless solution. The reason for

Kelsen’s failure, the critics say, was that he thought the law consists only of sanction- stipulating

norms addressed to officials, and does not comprise duty- imposing norms addressed to citi-

zens. But the critics are wrong, exegetically as well as substantively. Kelsen did not— and indeed

could not— deny that there are such duty- imposing norms; and it is not the case, in any event,

that the admission that there are such norms would enable us to explain the notion of a legal

wrong. Kelsen failed to provide an adequate characterization of the notion of a legal wrong, yes,

but for a different reason.

1. Kelsen’s “Rule of Transformation”: The Common View

Kelsen could not offer an adequate account of the notion of a legal wrong: So critics

say (cf. Hart1983, 299– 300; Nino1980, 177; Raz1980, 87– 8; Zuleta2001, 338– 40).

The critics’ point is simple. A legal wrong— a “delict”— is an action or omission that

violates a legal duty. The very idea of a wrong therefore presupposes that there are duty-

imposing norms addressed to the relevant subjects. Yet Kelsen did not include such norms

in his representation of a legal system. For him, “the law consists exclusively of norms

addressed to judges” and other legal organs (Bulygin2015, 38). Kelsen thought that “legal

norms are always sanction norms” (Weinberger1991, 22); his “principle of individuation,”

as Raz(1980, 80, 82) has called it, admits only of sanction- stipulating norms addressed to

legal officials. Kelsen cannot, therefore, account for the notion of a legal wrong.

It is true, the critics grant, that Kelsen seems to have thought that duty- imposing

norms (which he dubbed “secondary”) can be derived from (“primary”) sanction-

stipulating ones.1 He thought valid a “rule of transformation,” as Nino(1980, 84)

puts it, by which a sentence like (P) below entails, for the same interpretation of “A”

(a person) and “φ” (an action or omission), a sentence like (S):

1 The “primary”/“secondary” labels feature prominently in the General Theory of Law and State

(cf. Kelsen1945, 60– 2), but we already find them in the first edition of Pure Theory of Law (cf.

Kelsen1992, 29– 30). Though absent from the second edition of Pure Theory, they recur in General

Theory of Norms (cf. Kelsen1991, 56– 7).

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© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.