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jueves, 28 de junio de 2012
miércoles, 20 de junio de 2012
GENERAL THEORY OF LAW AND STATE
HANS KELSEN
Law, Morality, Religion While recognizing law as the specific social technique of a coercive order, we can contrast it sharply with other social orders which pursue in part the same purposes as the law, but by quite different means. And law is a means, a specific social means, not an end. Law, morality, and religion, all three forbid murder. But the law does this by providing that if a man commits murder, then another man, designated by the legal order, shall apply against the murderer a certain measure of coercion, prescribed by the legal order. Morality limits itself to requiring: thou shalt not kill. And if a murderer is ostracized morally by his fellow men, and many an individual refrains from murder not so because he wants to avoid the punishment of law as to avoid the moral disapprobation of his fellow men, the great distinction still remains, that the reaction of the law consists in a measure of coercion enacted by the order, and socially organized, whereas the moral reaction against immoral conduct is neither provided by the moral order, nor, if provided, socially organized. In this respect religious norms are nearer to legal norms than are moral norms. For religious norms threaten the murder with punishment by a superhuman authority. But the sanctions which the religious norms lay down have a transcendental character; they are not socially organized sanctions, even though provided for by the religious order. They are probably more effective than the legal sanctions. Their efficacy, however, presupposes belief in the existence and power of a superhuman authority.
It is, however, not the effectiveness of the sanctions that is here in question, but only whether and how they are provided for by the social order. The socially organized sanction is an act of coercion which an individual determined by the social order directs, in a manner determined by the social order, against the individual responsible for conduct contrary to that order. This conduct we call “delict.” Both the delict and the sanction are determined by the legal order. The sanction is the reaction of the legal order against the delict, or, what amounts to the same thing, the reaction of the community, constituted by the legal order, to the evil-doer, the delinquent. The individual who carries out the sanction acts as an agent of the legal order. This is equivalent to saying that the individual who carries out the sanction acts as an organ of the community, constituted by the legal order. A social community is nothing but a social order regulating the mutual behavior of the individuals subject to the order. To say that individuals belong to a certain community, or form a certain community, means only that the individuals are subject to a common order regulating their mutual behavior.
The legal sanction is thus interpreted as an act of the legal community; while the transcendental sanction — the illness or death of the sinner or punishment in another world — is never interpreted as a reaction of the social group, but always as an act of the superhuman, and therefore super-social, authority.
MONOPOLIZATION OF THE USE OF FORCE
Among the paradoxes of the social technique here characterized as a coercive order is the fact that its specific instrument, the coercive act of the sanction, is of exactly the same sort as the act which it seeks to prevent in the relations of individuals, the delict; that the sanction against socially injurious behavior is itself such behavior. For that which is to be accomplished by the threat of forcible deprivation of life, health, freedom, or property is precisely that men in their mutual conduct shall refrain from forcibly depriving one another of life, health, freedom, or property. Force is employed to prevent the employment of force in society. This seems to be an antinomy; and the effort to avoid this social antinomy leads to the doctrine of absolute anarchism which proscribes force even as sanction. Anarchism tends to establish the social order solely upon voluntary obedience of the individuals. It rejects the technique of a coercive order and hence rejects the law as a form of organization.
The antinomy, however, is only apparent. The law is, to be sure, an ordering for the promotion of peace, in that it forbids the use of force in relations among the members of the community. Yet it does not absolutely preclude the use of force. Law and force must not be understood as absolutely at variance with one another. Law is an organization of force. For the law attaches certain conditions to the use of force in relations among men, authorizing the employment of force only by certain individuals and only under certain circumstances. The law allows conduct which, under all other circumstances, is to be considered as “forbidden”; to be legally forbidden means to be the very condition for such a coercive act as a sanction. The individual who, authorized by the legal order, applies the coercive measure (the sanction), acts as an agent of this order, or — what amounts to the same — as an organ of the community constituted thereby. Only this individual, only the organ of the community, is authorized to employ force. And hence one may say that law makes the use of force a monopoly of the community. And precisely by so doing, law pacifies the community.
VALIDITY AND EFFICACY
The element of “coercion” which is essential to law thus consists, not in the so-called “psychic compulsion,” but in the fact that specific acts of coercion, as sanctions, are provided for in specific cases by the rules which form the legal order. The element of coercion is relevant only as part of the contents of the legal norm, only as an act stipulated by this norm, not as a process in the mind of the individual subject to the norm. The rules which constitute a system of morality do not have any such import. Whether or not men do actually behave in a manner to avoid the sanction threatened by the legal norm, and whether or the sanction is actually carried out in case its conditions are fulfilled, are issues concerning the efficacy of the law. But it is not the efficacy, it is the validity of the law which is in question here.
HANS KELSEN
Law, Morality, Religion While recognizing law as the specific social technique of a coercive order, we can contrast it sharply with other social orders which pursue in part the same purposes as the law, but by quite different means. And law is a means, a specific social means, not an end. Law, morality, and religion, all three forbid murder. But the law does this by providing that if a man commits murder, then another man, designated by the legal order, shall apply against the murderer a certain measure of coercion, prescribed by the legal order. Morality limits itself to requiring: thou shalt not kill. And if a murderer is ostracized morally by his fellow men, and many an individual refrains from murder not so because he wants to avoid the punishment of law as to avoid the moral disapprobation of his fellow men, the great distinction still remains, that the reaction of the law consists in a measure of coercion enacted by the order, and socially organized, whereas the moral reaction against immoral conduct is neither provided by the moral order, nor, if provided, socially organized. In this respect religious norms are nearer to legal norms than are moral norms. For religious norms threaten the murder with punishment by a superhuman authority. But the sanctions which the religious norms lay down have a transcendental character; they are not socially organized sanctions, even though provided for by the religious order. They are probably more effective than the legal sanctions. Their efficacy, however, presupposes belief in the existence and power of a superhuman authority.
It is, however, not the effectiveness of the sanctions that is here in question, but only whether and how they are provided for by the social order. The socially organized sanction is an act of coercion which an individual determined by the social order directs, in a manner determined by the social order, against the individual responsible for conduct contrary to that order. This conduct we call “delict.” Both the delict and the sanction are determined by the legal order. The sanction is the reaction of the legal order against the delict, or, what amounts to the same thing, the reaction of the community, constituted by the legal order, to the evil-doer, the delinquent. The individual who carries out the sanction acts as an agent of the legal order. This is equivalent to saying that the individual who carries out the sanction acts as an organ of the community, constituted by the legal order. A social community is nothing but a social order regulating the mutual behavior of the individuals subject to the order. To say that individuals belong to a certain community, or form a certain community, means only that the individuals are subject to a common order regulating their mutual behavior.
The legal sanction is thus interpreted as an act of the legal community; while the transcendental sanction — the illness or death of the sinner or punishment in another world — is never interpreted as a reaction of the social group, but always as an act of the superhuman, and therefore super-social, authority.
MONOPOLIZATION OF THE USE OF FORCE
Among the paradoxes of the social technique here characterized as a coercive order is the fact that its specific instrument, the coercive act of the sanction, is of exactly the same sort as the act which it seeks to prevent in the relations of individuals, the delict; that the sanction against socially injurious behavior is itself such behavior. For that which is to be accomplished by the threat of forcible deprivation of life, health, freedom, or property is precisely that men in their mutual conduct shall refrain from forcibly depriving one another of life, health, freedom, or property. Force is employed to prevent the employment of force in society. This seems to be an antinomy; and the effort to avoid this social antinomy leads to the doctrine of absolute anarchism which proscribes force even as sanction. Anarchism tends to establish the social order solely upon voluntary obedience of the individuals. It rejects the technique of a coercive order and hence rejects the law as a form of organization.
The antinomy, however, is only apparent. The law is, to be sure, an ordering for the promotion of peace, in that it forbids the use of force in relations among the members of the community. Yet it does not absolutely preclude the use of force. Law and force must not be understood as absolutely at variance with one another. Law is an organization of force. For the law attaches certain conditions to the use of force in relations among men, authorizing the employment of force only by certain individuals and only under certain circumstances. The law allows conduct which, under all other circumstances, is to be considered as “forbidden”; to be legally forbidden means to be the very condition for such a coercive act as a sanction. The individual who, authorized by the legal order, applies the coercive measure (the sanction), acts as an agent of this order, or — what amounts to the same — as an organ of the community constituted thereby. Only this individual, only the organ of the community, is authorized to employ force. And hence one may say that law makes the use of force a monopoly of the community. And precisely by so doing, law pacifies the community.
VALIDITY AND EFFICACY
The element of “coercion” which is essential to law thus consists, not in the so-called “psychic compulsion,” but in the fact that specific acts of coercion, as sanctions, are provided for in specific cases by the rules which form the legal order. The element of coercion is relevant only as part of the contents of the legal norm, only as an act stipulated by this norm, not as a process in the mind of the individual subject to the norm. The rules which constitute a system of morality do not have any such import. Whether or not men do actually behave in a manner to avoid the sanction threatened by the legal norm, and whether or the sanction is actually carried out in case its conditions are fulfilled, are issues concerning the efficacy of the law. But it is not the efficacy, it is the validity of the law which is in question here.
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