Stateless Law: Kelsen's Conception and its Limits

Abstract

Hans Kelsen's claim that the state and the law are identical is surrounded by a somewhat mystical air. Yet, the identity thesis loses much of its mystical aura when it is seen as an attempt to recast the state, qua social fact, in deontological terms. The state is seen as a condition necessary to account for the validity of legal acts. Indeed, the meaning of the state is reduced to the function performed by a conception of order in the reproduction of a system of norms. No further social fact would attest to its existence. Accordingly, all law is essentially, and principally, law sans state.