Abstract
The conventional wisdom, among both laypersons and academics, is that laws address the citizenry, or at least those citizens who could face liability prescribed by a given law. Hans Kelsen, in contrast, argued in several of his major works that the primary addressees of laws are the state actors who must implement, enforce, and apply the laws, and that the governed citizens are, at most, secondary addressees. This approach is logically consistent with Kelsen’s overall views of the law and the state, and is phenomonologically consistent with the formulations used in modern codes, which use indicative mood rather than imperative mood for the verbs. Nevertheless, Kelsen’s view remains unpopular in the United States, because it grates against American ideals of populism and democracy, as well as the cultural tendency to treat all political issues as moral issues. Yet Kelsen’s approach provides a fertile analytic tool for understanding the persistence of technical terms and jargon within American codes, despite decades of attempted “plain language” reforms across the American legal system. His framework also has much to offer for understanding interpretive rules pertaining to legislative delegations of authority to executive agencies, boundaries of executive and judicial power, and problems with outsourcing state functions to private corporations. This chapter reviews Kelsen’s core discussions of the addressee issue and explores its implications for these and other areas of legal research.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
For a typical criticism, see Ota Weinberger (Weinberger 1985: 321), “strongly opposing” Kelsen’s view.
- 2.
- 3.
Bentham believed that his great project for modern codification would only work if the citizens knew exactly what was expected of them” (Bentham 1999: 122). To this end, he proposed that codes follow a logical organization, in part to facilitate memorization by those governed (Bentham 1999: 119–123). Part of his attempt to create a comprehensive utilitarian code was the division of laws into categories of those that affect everyone and those that affect only some people, so that people could readily identify the sections that they should know by heart regardless of their situation.
- 4.
See, eg, other examples of imperatives to the rulers that imply a dependent norm, such as Exodus 21:15 (“Anyone who attacks their father or mother is to be put to death.”); Exodus 21:29 (“If, however, the bull has had the habit of goring and the owner has been warned but has not kept it penned up and it kills a man or woman, the bull is to be stoned and its owner also is to be put to death.”); Exodus 22:18 (“Do not allow a sorceress to live.”); Exodus 22:19 (“Anyone who has sexual relations with an animal is to be put to death.”); Exodus 31:15 (“Whoever does any work on the Sabbath day is to be put to death.”). Lest the reader think that all Old Testament sanctions involved death, there are many requiring restitution instead. See, eg, Leviticus 24:21 (“Whoever kills an animal must make restitution, but whoever kills a human being is to be put to death.”); Exodus 22:3 (“Anyone who steals must certainly make restitution, but if they have nothing, they must be sold to pay for their theft.”); Exodus 22:6 (“If a fire breaks out and spreads into thornbushes so that it burns shocks of grain or standing grain or the whole field, the one who started the fire must make restitution.”); Exodus 22:14 (“If anyone borrows an animal from their neighbor and it is injured or dies while the owner is not present, they must make restitution”).
More interesting, from the standpoint of Kelsen’s view of norms and the state, are divine edicts that are general rules or limitations on sanctioning, without any “secondary” or “dependent” norm for the citizenry. See, eg, Numbers 35:30 (“Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness.”); Deuteronomy 17:6 (same); or Deuteronomy 24:16 (“Parents are not to be put to death for their children, nor children put to death for their parents; each will die for their own sin.”). All foregoing biblical quotes are from the New International Version. Other modern writers have developed more thorough literary discussions of other Old Testament mandates (Bartor 2012: 292).
- 5.
The original title was Allegemeine Theorie der Normen . This lengthy work was among Kelsen’s unpublished papers at the time of his death in 1973, and first appeared in German in 1979.
- 6.
Kelsen goes on to say that no subject of the law can decide whether she has obeyed or violated the law. Rather, only the relevant legal organ can make that determination (of compliance or violation)—at least, a determination that is legally relevant (Kelsen 1979: 54–55).
- 7.
I have written an extensive refutation to Dan-Cohen’s article elsewhere (Stevenson 2003: 132–36).
- 8.
Kelsen concludes that objectively observing or violating a command occurs when the behavior addressed by the law comports with the law’s prescription, regardless of the knowledge of the actor, while subjectively obeying or violating a law requires knowledge and intent on the part of the actor concerning compliance.
- 9.
The translator’s Introduction to General Theory of Norms observes the following about this aspect of Kelsen’s thought in the book:
ATN [?] clarifies things considerably; a legal norm has two addresses, one immediate (the official) and the other mediate (the person liable to the sanction), and both addressees can observe or violate the norm; this implies that the effect of the norm on both addressees is one of commanding. It imposes a legal duty on the mediate addressee, and on the official it imposes some sort of requirement which is something other than a legal duty but which is never explained.
Id . at xl.
- 10.
See, eg, Siegel’s biographical summary at http://www.siegelgale.com/team_member/alan-siegel/.
- 11.
See also www.commongood.org.
- 12.
See, eg, 20 C.F.R. §404.1530 (2002) (“In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work”).
- 13.
Maley observes that the grammatical layout of statutes, which are generally one continuous sentence, was historically motivated by the belief in the legal community that “it is easier to construe a single sentence than a series of sentences, and that there is therefore less potential for uncertainty ” (Maley 1994: 24). While this belief may be mistaken, it has led draftsmen to use complex patterns of subordinate clauses, making for greater lexical density. Maley notes that even with modern formatting, such as indentation of subordinate clauses, “the syntactic complexity -probably more than technical terms -renders legislative texts incomprehensible to all except the specialist reader.” He notes that drafters prefer repetition of nouns rather than employing pronouns for the same reason (Maley 1994: 25).
- 14.
In the same section, Kelsen argues that an attorney who, in the interest of his client, propounds to the judge only one of several possible interpretations of the legal norm to be applied in the case, or a writer who in his commentary extols a specific interpretation among many possible ones as the only correct one, does not render a function of legal science, but of legal politics.
- 15.
The plight of an average citizen has become an issue in Supreme Court decisions—Citizens United v. F.E.C., 130 S. Ct 876 (2010), being the prime example. There, the majority based its holding in part upon the prolixity of campaign regulations, apparently adopting a void-for-verbosity rule:
These entities are subject to separate rules for 33 different types of political speech. The FEC has adopted 568 pages of regulations, 1278 pages of explanations and justifications for those regulations, and 1771 advisory opinions since 1975…Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’
Citizens United < 130 S. Ct. at 888–889. Professor Mila Sohoni recently commented that this “may be the first modern instance of the Supreme Court treating the volume and complexity per se of a federal regulatory scheme as an unacceptable burden on the exercise of a fundamental right” (Sohoni 2012: 1600). Similarly, in Sampson v. Buescher, 625 F.3d 1247, 1259 (10th Cir. 2010), the court said, “The average citizen cannot be expected to master on his or her own the many campaign [laws and regulations]. Even if those rules that apply to issue committees may be few, one would have to sift through them all to determine which apply.” In Doctor’s Hospital of Hyde Park v. Appeal of Daiwa Special Asset Corp., 337 F.3d 951 (7th Cir. 2003), the court declared, “There are an enormous number of state laws, and it might be unreasonable to expect a person…to determine in advance the possible bearing of all of them.”
- 16.
Some may answer that people ask lawyers to read the law for them, and inform them of its content, but most individuals in society do not consult lawyers before they make decisions—that luxury is largely reserved for corporations and wealthy individuals. For a recent article recognizing that those who end up being liable for patent infringement never read patent laws themselves, in a similar vein to the arguments in this paper, see Janis and Holbrook (2012: 72). Janis and Holbrook argue for better use of “intermediaries” (presumably lawyers) to bridge the communication gap between the law’s actual audience and those whose conduct will trigger sanctions under the law.
- 17.
Even in the case of so-called “legislative threats,” wherein a regulator or legislator communicates directly to the leaders of a targeted industry that they need to self-regulate to a requisite level or else face draconian legislation (not yet enacted), the deterrence is not through the legislative text itself. Rather, the deterrence comes through the orally-transmitted threat of a sanction that contemplated legislation will authorize unless the audience preempts this move by voluntarily changing their behavior (Halfteck 2008).
- 18.
Bell surveys several studies in this area, and explains how the primary addressee exerts the most influence over the crafting of the communication, relatively speaking, while known overhearers have a relatively small effect on the design of the speech or writing. Bell calls non-addressee recipients of the communication “auditors,” which would correspond to the role of the citizenry regarding the law under Kelsen’s theory. I am indebted to Professor Henry E. Smith for some of these core insights (Smith 2003).
- 19.
The doctrine takes its name from the landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The decision laid down a two-step rule for courts to use in deciding whether to defer to an administrative agency’s interpretation:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Chevron , 467 U.S. at 842. Note that the Supreme Court recently announced in an immigrant removal case that Chevron Step Two and the “arbitrary and capricious” standard are the same and yield identical results. See Judulang v. Holder, 132 S. Ct. 476, 484 n.7 (2011).
- 20.
See Auer v. Robbins, 519 U.S. 452 (1997). This is the same as the older rule in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and courts and writers sometimes call this the Seminole-Auer Rule (or the Auer-Seminole Rule).
- 21.
H.L.A. Hart’s rejection of Kelsen’s views about the addressees of the law make a large omission of this type of legislation—delegating tasks to government agencies—that are extraordinarily common today. Though an individual agency may not receive deference when interpreting a law not addressed to that agency, the norm of Chevron deference is universal in that the same rule (with the same contours and exceptions) applies to all agencies. In Mayo Foundation for Medical Educ. and Research v. United States, 131 S. Ct. 704 (2011), the Supreme Court held that the Chevron approach should apply uniformly across agencies, rather than having special rules (or varying levels of scrutiny) for certain agencies like the Internal Revenus Service.
- 22.
At the same time, entrenched judicial precedents can trump the agency’s interpretations in certain cases, according to a recent decision from the Supreme Court. The Court held that the recently promulgated agency regulation equating an overstatement of unrecovered cost or other basis with an omission from gross income was not entitled to deference under Chevron based on ambiguity in the statute. Precedent has already interpreted the statute and there was no longer any different interpretation, which is consistent with the precedent and available for adoption by the government. See U.S. v. Home Concrete & Supply, LLC., 132 S. Ct. 1836 (2012). On the other hand, long-standing agency interpretations (which the courts have not challenged) receive heightened deference under Chevron . See Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021 (2012), holding that the Social Security Administration’s (SSA) interpretation of the Social Security Act governing determination of the status of posthumously conceived children was entitled to Chevron deference; SSA’s interpretation of the relevant provisions, adhered to without deviation for many decades, was reasonable, and was therefore entitled to deference.
- 23.
The trigger for applying Skidmore deference, rather than Chevron , is the Mead case’s rule about whether the relevant legislative norm (the statute) creates a situation where the agency is supposed to make positive law, or where the agency merely implements the law. Most scholars call this “Chevron step zero.”
- 24.
Justice Scalia, the author of the majority opinion Auer v. Robbins, worried in his dissent in Mead that agencies would start promulgating vague rules for the strategic reason of getting Auer super-deference to whatever interpretation they want to adopt later.
- 25.
The Supreme Court began applying Auer more often starting in 2007, and it has become an important doctrine now. The Department of Justice and other agencies are filing a lot more amicus briefs in cases around the country urging the Court to adopt agency interpretations rather than those proposed by the parties. See Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012); PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011); Talk America, Inc. v. Michigan Bell Telephone Co., 131 S. Ct. 2254 (2011); Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011); Kennedy v. Plan Adm’r for DuPont Sav. and Inv. Plan, 555 U.S. 285 (2009); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007); National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).
- 26.
Another significant difference between the operation of contracts and regulations is that agencies are generally free to change or amend problematic regulations (as long as proper procedures are followed), while contracts cannot be freely revoked by states (although the federal government can claim sovereign immunity when it breaches a contract). Freeman notes that “an agency may find itself, even if only temporarily, bound to a bad bargain and unable to alter it through a simple interpretive decision or rulemaking process. States may choose to avoid these complications by codifying contractual terms in state law or promulgating them as regulations.” (Freeman 2000, 183).
References
Alan Siegel, Let’s simplify legal jargon!, TED talk video. http://www.ted.com/talks/alan_siegel_let_s_simplify_legal_jargon. Accessed on Feb 2010.
Austin, John. 1832. The providence of jurisprudence determined. Amherst: Prometheus Books 2000 ed.
Bartor, Assnat. 2012. Reading biblical law as narrative. Prooftexts 32: 292.
Bell, Allan. 1984. Language as audience design. Language in Society 13: 145.
Bentham, Jeremy. 1999. In ‘Legislator of the world’: Writings on codification, law, and education, ed. Schofield Philip and Harris Jonathan. Oxford: Oxford University Press.
Bressman Lisa, Schultz, and R. Gluck Abbe. 2014. Statutory interpretation from the inside—An empirical study of congressional drafting, delegation, and the canons: Part II. Stanford Law Review 66: 725–801.
Crump, David. 2002. Against plain English: The case for a functional approach to legal document preparation. Rutgers Law Journal 33: 713–744.
Dan-Cohen, Meir. 1984. Decision rules and conduct rules: On acoustic separation in criminal law. Harvard Law Review 97: 625–677.
Diamond, Shari Seidman, Beth Murphy, and Mary R. Rose. 2012. The “Kettleful Of Law” in real jury deliberations: Successes, failures, and next steps. Northwestern University Law Review 106: 1537–1608.
Freeman, Jody. 2000. The contracting state. Florida State University Law Review 28: 155–183.
Gallacher, Ian. 2013. “When Numbers Get Serious”: A study of plain English usage in briefs filed before the New York Court of Appeals. Suffolk University Law Review 46: 451501.
Gopen, George. 1987. The state of legal writing: Res Ipsa Loquitur. Michigan Law Review 86: 333–380.
Halfteck, Guy. 2008. Legislative threats. Stanford Law Review 61: 629–710.
Hart, H.L.A. 1961. The concept of law. Oxford: Oxford University Press.
Hathaway, George. 1994. The plain English movement in the law. Journal of the Missouri Bar 50: 19–21.
Howard, Philip K. 2010. Four ways to fix a broken legal system. http://www.ted.com/talks/philip_howard. Accessed on Feb 2010.
Janis, Mark D., and Timothy R. Holbrook. 2012. Patent law’s audience. Minnesota Law Review 97: 72–131.
Kelsen, Hans. 1945. General Theory of Law and State. Trans. A. Wedberg 1945. Cambridge: Harvard University Press.
Kelsen, Hans. 1960. Pure Theory of Saw, Second ed. Trans. M. Knight 1967. Berkeley: University of California Press.
Kelsen, Hans. 1979. General Theory of Norms. Trans. M. Hartney 1991. Oxford: Oxford University Press.
Lotman, Yury M., and Ann Shukman. 1982. The text and the structure of its audience. New Literary History 14: 81.
Maley, Yon. 1994. Language constructing law. In Language and the law, ed. Gibbons John, 24–25. London: Routledge Publishing.
Metzger, Gillian E. 2003. Privatization as delegation. Columbia Law Review 103: 1367–1502.
Moore, Sir Thomas. 1516. Utopia. London: Cassell & Co., 1901.
Serafin, Andrew. 1998. Kicking the legalese habit: The SEC’s plain English disclosure proposal. Loyola University of Chicago Law Journal 29: 681–717.
Smith, Henry E. 2003. The language of property: Form, context, and audience. Stanford Law Review 55: 1105–1191.
Sohoni, Mila. 2012. The idea of “too much law”. Fordham Law Review 80: 1585–1632.
Solan, Lawrence. 1993. The language of judges. Chicago: University of Chicago Press.
Somek, Alexander. 2006. Stateless law: Kelsen’s conception and its limits. Oxford Journal of Legal Studies 26: 753–774.
Stevenson, Drury. 2003. To whom is the law addressed? Yale Law and Policy Review 21: 105–167.
Stevenson, Dru. 2005. Toward a new theory of notice and deterrence. Cardozo Law Review. 26: 1535–1594.
Stewart, Iain. 1990. The critical legal science of Hans Kelsen. Journal of Law & Society 17: 273–284.
Stuntz, William J. 2000. Self-defeating crimes. Virginia Law Review 86: 1871–1899.
Tiersma, Peter. 1999. Legal language. Chicago: University of Chicago Press.
Weinberger, Ota. 1985. Freedom, range for action, and the ontology of norms. Synthese 65: 307–324.
Wilson, A. 1981. The imperative fallacy in Kelsen’s theory. Modern Law Review 44: 270–281.
Acknowledgments
This chapter was occasioned by the “Hans Kelsen in America” conference in Chicago on June 27–28, 2014. Valparaiso University Law School sponsored the event, with support from a grant by the Botstiber Institute for Austrian-American Studies. Many thanks to Jeremy Telman for inviting me to participate, and to the other participants for thoughtful comments and suggestions. I am deeply indebted to Dr. Henry Smith (currently at Harvard Law School) for introducing me to both the sociolinguistic concept of addressees and to Hans Kelsen’s work on legal theory.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Stevenson, D.D. (2016). Kelsen’s View of the Addressee of the Law: Primary and Secondary Norms. In: Telman, D. (eds) Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence. Law and Philosophy Library, vol 116. Springer, Cham. https://doi.org/10.1007/978-3-319-33130-0_15
Download citation
DOI: https://doi.org/10.1007/978-3-319-33130-0_15
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-33128-7
Online ISBN: 978-3-319-33130-0
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)