I will first briefly introduce the theory of norms as sensesI use the expression "sense", despite the fact that the expression "meaning" is commonly used in Kelsenian studies, and it is because the paper is published in journal localized in the Czech Republic. The most common Czech translation of the English "sense" better captures that the senses of volitional acts are not in the first place about semantic meanings. Although the theoretical connection between semantic meaning and the sense of a volitional act is an interesting question in itself, this paper does not address it. A reader used to the Kelsenian studies written in English may replace virtually all expressions of "sense" with "meaning".⁴⁾ of acts of will, then this conception will be problematized by the fact that Kelsen clings, even in his later work, to the distinction between subjective and objective senses of acts of will. Next, the normative function of empowerment will be elaborated, while it will also be shown that and how the basic norm is functionally related to the empowering norms and why it is important for Kelsen’s late thought.

1. Norms as senses of acts of will

It is possible to interpret Kelsen's work in such a way that the theory of norms as senses of volitional acts that are directed to the conduct of another has always been held by him, even in the first edition of The Pure Theory of Law. There at least as one of several theories of norms.Cf. for example this quote from Hans Kelsen. Introduction to the Problems of Legal Theory (Oxford University Press, 1992) p. 10., i.e. from the first edition of The Pure Theory of Law: “The norm is itself created by way of legal act whose own meaning comes, in turn, from another norm.”⁵⁾ However, it is standardly assumed that he has explicitly subscribed to this theory since the second edition of The Pure Theory of Law, i.e., since the early 1960s. There he explicitly states:

Norm is the meaning of an act by which a certain behaviour is commanded, permitted or authorized.Kelsen (n 2) p. 5.⁶⁾

A few lines earlier, he notes that it is an act of the will, and further that this act is directed at the behaviour of another. In addition to acts of the will, as we see in The General Theory of Norms, there are also acts of thought in Kelsen's theory of mind, which is also developed therein. Each of the mental acts has a sense which has its content.

The sense of a mental act of thought is the statement that something is; the sense of a mental act of will, intentionally directed at the behaviour of another, is the norm that one should behave in a certain way.Kelsen (n 3) p. 26.⁷⁾ Language, according to Kelsen, serves to express, that is, to disclose mental acts, whereby a certain utterance is a statement if this utterance expresses the content of a mental act of thought; the same utterance is a norm if it expresses the content of a mental act of will directed towards another. The sense of a mental act is therefore corresponding to the sense of the sentence which formulates the content of that act, and which is understood at one time as a proposition and at another time as a norm, depending on which mental act we have in mind.Ibid, pp. 32–36. Cf. also Michael Hartney's preface to the English translation of The General Theory of Norms. Michael Hartney, ‘Introduction: The Final Form of the Pure Theory of Law’ in Hans Kelsen, Všeobecná teorie norem (Masarykova univerzita, 2000) p. xxxviii.⁸⁾ According to Kelsen, it is better to say that “the norm is a sense” than that “the norm has a sense”.Ibid, p. 26.⁹⁾

2. Command and Norm

It should be said that the above definition, which understands a norm as a sense of a volitional act intentionally directed at the behaviour of another, is not a complete reconstruction of Kelsen's position. Its addition stems from the conceptual distinction between a command and a norm.

A command is also understood as the sense of a volitional act aimed at the behaviour of another, but it is a sense that is not binding on the other, whose behaviour is the focus of the relevant act of will, and therefore does not create an obligation for the addressee. Bindingness, however, is, according to Kelsen, an essential characteristic of certain commands, which is precisely what makes them norms. Bindingness can be achieved primarilyIt is possible, according to Kelsen, that normativity can also be achieved in other ways, since he consistently and systematically cites custom as its source. However, I will not address this in this paper.¹⁰⁾ by the person who issues the command being empowered to issue it.Ibid, p. 27.¹¹⁾ Thus, the norm is in a way a qualified command. And from here also follows the relation between the basic norm, as the systematic basis of normativity, and empowerment, which I will discuss later. Up to this point, intuition can be followed along with Kelsen without much difficulty.

Further, however, Kelsen identifies the empowered command with the objective sense of the volitional act in question and the non-empowered command with the subjective sense of the volitional act in question.Ibid.¹²⁾

The subjectivity of the sense of a volitional act can be understood as that normative qualification of the sense of a volitional act which is created and held by the person who performs the act. This subjective sense may or may not coincide with the so-called objective sense of the volitional act.

Exactly what the objective sense of the norm is in the Kelsen's late doctrine is very problematic to determine, because it seems to be something that should approach the subjective sense from outsideSince it is not a subjective sense, perhaps it does not originate in the inner world of the person commanding.¹³⁾ and make it a norm. But this making it a norm is only possible if the subjective sense corresponds to this objective sense, and this must already be the case before we compare these senses.

This correspondence brings with it at least two problems:

1. If the norm itself is the sense a volitional act that someone in particular must perform, and thus the sense is subjective, on what basis can we determine from where outside the objective sense should come? There seems to be no room for objective sense without considering some eternal being constantly thinking objective senses to which subjective senses correspond or other means of ensuring the persistence of the sense of the volitional act after the act of will by which it was normed has ended.I take it that objective sense, if it is to function as the sense of the volitional act of a valid norm, presupposes a mind that contains it, because otherwise it cannot be the sense of a volitional act at all, that is, the sense of an operation that is by definition performed by an actor. I also assume that since the basic norm is fictitious norm (cf. Ibid, p. 256), the mind that makes the fictional act of will that results in the basic norm can also be a fictitious. I thank one of the reviewers who proposes two solutions other than the existence of a being that has persistent objective senses in its mind. 1) The reviewer proposes that there might be an external instead of an eternal being, where I take the core of this proposal to be primarily about avoiding the metaphysics of an eternal being. The problem with this proposed solution, however, is that the distinction between subjective and objective sense disappears at that point, since the sense of the volitional act of an external being will again be "merely" a subjective sense, and there is nothing that gives it the quality that brings validity (objectivity) to subjective senses of volitional acts. 2) The reviewer's second suggestion refers to the solution that the existence of a norm depends on the presence or absence of empowerment by a given normative system. This is an unproblematic proposal from my point of view, but if the empowering norms that ensure the existence of norms in a normative system (i.e. their validity) are themselves to be norms, then they also have to correspond to some objective sense of a volitional act, and the problem returns. From where something like objective sense stems? The inquiry in such a case should move to the question of the nature of the basic norm. Related is the problem of the persistence of the objective sense of a volitional act outside of some mind that does the norming, i.e., after the act by which the norming is performed has ended. Kelsen assumes this situation (cf. Ibid, p. 28) but unfortunately does not, in my opinion, explain it in any details. A mechanism ensuring such persistence based somehow in the domain of Sollen could give coherence also to the distinction between subjective and objective sense. ¹⁴⁾
2. Who and by what mechanism should evaluate whether the subjective sense corresponds to the objective sense, since we find no such normative mechanism in The General Theory of Norms?

I take it that these problems arise from the first edition of The Pure Theory of the Law and the emphasis therein on a normative-scientific reconstruction of norms, where the sense of an act of volition is interpreted externally, from the perspective of the pure doctrine, rather than internally from the perspective of the realm of Sollen, i.e., from the perspective of the norm-maker who performs the relevant volitional act.

As a result, two conceptions of what is norm are interchanged in The General Theory of Norms without any rule. One interpretive, according to which the sense of a volitional act is perhaps the result of interpreting its content so that it corresponds to some objective sense that is epistemically unclearly attainable, and only this interpretation is a norm. The second, which seems to be characteristic of the later stage of Kelsen's thought, according to which the sense of a volitional act is the norm itself, without any interpretation of it being a condition for it to become a norm. In this latter conception, one can proceed to eliminate the category of objective sense as redundant, because only norm correspond to the objective sense. Thus, if the sense is a norm, then it automatically corresponds to objective sense. In other cases, it is not a norm, and the category of objective sense as a theoretical tool adds nothing new. The problem, however, is that we have no way of knowing in advance whether the subjective sense of a volitional act is a norm.

I will now leave aside the above suggested discrepancy, which, moreover, may be caused, at least in part, by the fact that The General Theory of Norms was not completed and was published posthumously. In what follows, I will look more closely at the problem of empowerment.

3.   Empowerment in The General Theory of Norms

Bindingness of a norm is understood as a state in which the one who performs a volitional act is empowered to form the sense of the volitional act, which is consequently a norm. The state in which a norm is to be followed signifies that there is some other norm which stipulates that the former is to be followed. This other norm is always an empowering norm. Kelsen understands the binding character of a norm as in fact the only condition for the validity or normative existence of a norm, and therefore the position of empowering norms is seen as crucial for normativity, and only of secondary importance are commands.Kelsen (n 3) p. 27.^15),This view of the primacy of empowerment over commands is not uniform, especially in the phase of Kelsen's thought that precedes the second edition of the Pure Theory of Law. Hart, for example, interprets Kelsen to understand empowerment as inherent part of commands, which is seen as Kelsen's attempt to reduce empowerment to commands. Cf. Herbert L. A. Hart, The Concept of Law (2nd edn, Oxford University Press, 1994) p. 35–36. With reference to Kelsen, among others, Torben Spaak also regards the commands as primary with reductionist ambition. Cf. Torben Spaak, ‘Norms that Confer Competence’ (2003) 16 (1) Ratio Juris 89, pp. 95–96. And also Ibid, footnote n. 23. Cf. also Kelsen (n 3) p. 258–261, where Kelsen claims that empowerment is derivative. Paulson on the other hand argues influentially for understanding empowering norms I Kelsen’s theory as primary and commands as derivative. Cf. Stanley L. Paulson, ‘An Empowerment Theory of Legal Norms’ (1988) 1 (1) Ratio Juris 58, p. 68; Stanley L. Paulson, ‘Hans Kelsen as outlier: the defence of a radical norm theory’ in Stefano Bertea (ed), Contemporary Perspectives on Legal Obligation (Routledge, 2020) pp. 54–67. ¹⁶⁾

Empowerment is one of the functions of norms. Other functions of norms include commanding and permitting, later explicitly also derogating, and marginally in some of Kelsen's works also defining a concept.Derogation in the second edition of the Pure Doctrine of Law and in the General Theory of Norms. Defining a concept more emphatically in the second edition of The Pure Theory of Law. Overall, however, I think that these are rather marginal topics within Kelsen's theory of norms.¹⁷⁾

However, empowerment is introduced in Kelsen as a kind of command.Kelsen (n 3) pp. 258–261.¹⁸⁾ The General Theory of Norms distinguishes three basic types of empowerment:Ibid, pp. 260–265.¹⁹⁾

1. Subject A commands subject B to issue a command to subject C, thereby authorising subject B to issue a command to subject C;
2. Subject A commands subject C to obey subject B, and thus subject A has empowered subject B to issue norms binding to subject C;
3. Subject A commands something to subject B, and thereby empowers everyone to give commands to subject B such that they can be subsumed under the command given to subject B by subject A itself.In this transcript on commands, Michael Hartney also lists the types of empowerment, cf. Hartney (n 8), p. xli.²⁰⁾

Point (i) is the case, which Kelsen already discusses in the first edition of The Pure Theory of Law. The problem that arises with this type of empowerment is that it is difficult to show why, for example, my empowering one of my subordinates to command something to a bystander would create an obligation on the bystander to follow such a command from my subordinate. This type of empowerment can only work in a closed normative system and constitutes, in my view, a residue of early Kelsen's doctrine, but one that can be given some coherent meaning, as I will show below.

Point (ii), on the other hand, is an expression of a common and intuitive idea of empowerment, i.e., that if I have power, for example, over one of my subordinates, then I can command him to obey another of my subordinates as well, and thus actually transfer part of my power over the first subordinate to the second subordinate, who can thus act normatively in relation to the first subordinate's behaviour.

Point (iii) seems to me to be extremely counter-intuitive, but it is a consequence of Kelsen's departure from the logic of norms. For if the individual norm cannot be derived from the general norm because the individual norm does not follow from the general norm, then this mechanism must be provided directly in the realm of the senses, i.e. through the will. Thus, any general command must empower all to issue individual commands that correspond to that general command.

Kelsen further elaborates a division according to whether the empowerment is formal or formal and material, i.e. whether the content of the empowering norm already indicates what content the norm issued by the empowering agent is to have, or whether it is only a blanket empowerment.Kelsen (n 3) pp. 260–261.²¹⁾ However, there is no need to go into detail at this point.

However, I think it is worth noting that the fact that empowerment can be introduced as a kind of command is a consequence of the modal plasticity of language, which means that the same expression can at one time mean a command in terms of normative function, at another time an empowerment, and from a normative point of view these are interchangeable, just as a command within the classical theory of deontic logic can be understood as a forbiddance of the opposite. Command can also be introduced by empowerment, which I will show below. I take it that in the case of Kelsen's norm theory, and especially as a consequence of the basic norm theory, the understanding of empowerment as the primary modality is indeed much more intuitive than the situation where command is taken to be primary.

4. The importance of empowering norms - the basic norm as empowerment

Let us now return to why I think that empowering norms are more relevant to Kelsen's theory than command norms. As indicated above, the reason for this is my belief that the basic norm shares its function, that of empowering, with the empowering norms, despite the fact that the former is not a norm of positive law in The General Theory of Norms. Kelsen goes even further here by not even treating the basic norm as a hypothetical norm, but explicitly stating that it is a fiction, a thought norm, which is the sense of a thought volitional act.Ibid, p. 256.²²⁾ 

The basic norm as the final justification of the validity, and therefore the final justification of the binding character of the norms of a normative system is nothing more than an empowerment projected hierarchically throughout the system. While there can be no normative reason for the actual validity of a basic norm, since it would no longer be a basic norm, it can nevertheless be argued for, at least from the point of view of legal theory.

According to Kelsen, the basic norm may or may not be presupposed, but only if it is presupposed, and this is essential, can the subjective sense of a volitional act directed at another be the norm.Ibid.²³⁾ Thus, a positive law can only be positive if it is conditional on the basic norm being valid, and this condition is satisfied. Without the basic norm, there can be no positive law, and its existence in turn reciprocally justifies the existence of the basic norm.

The above can be illustrated by an example. Consider a norm expressed in a normative sentence:

      iv.    If a delict occurs there ought to be a sanction.I have taken the example from Paulson (n 16a) p. 68.²⁴⁾

In this sentence, "ought to" expresses both the command to impose a sanction and the empowerment to do so. However, it is important to determine when ''ought to'' in this example expresses a command and when it expresses an empowerment.

On this point, Kelsen states that it is a command when the omission to impose a sanction by the one who is empowered to impose it is itself subject to a possible sanction by someone else against the one who should have imposed the first sanction. In the other case, it is a simple empowerment.Kelsen (n 2) pp. 24–27.²⁵⁾ This second-order or second-instance possibility of imposing a sanction for failure to impose a sanction in the first instance, unless it is again secured by the possibility of a sanction of some still higher instance, is again an empowerment (i.e., a simple empowerment and not a command), namely, an empowerment of the second instance, which consists in the latter being empowered to impose a sanction on the former.

It is the modus of empowerment that appears whenever one talks about law, not only when one talks about empowerment as such, but also when one talks about commands.

This (iv) corresponds in a sense to the type of empowering norm as described under (i) above, and can also be rewritten in a developed form from which the plasticity of normative modes is evident, as follows:

     v.  If person S1 commits delict D, person S2 is empowered [commanded, obliged] to impose sanction X on S1, and if S2 fails to impose sanction X on S1, then person S3 is empowered [empowered] to impose sanction Y on S2.

The empowerment in the basic norm then, in my view, plays the role of the second empowerment in sentence (v) above, that is, the role of the empowerment of S3, who, if he or she existed, would be empowered (empowered) to impose a sanction on S2, who is empowered (commanded, obliged) to impose a sanction on S1.

In order for person S2 to be obliged to do something, i.e., to be commanded to sanction some conduct, there must be some other, albeit fictitious, person who ensures that person S2's empowerment is actually a command to carry out his or her empowerment. The fact that the empowerment of person S2 is already, at the time of the normative-theoretical reconstruction that is supposed to justify the basic norm, understood as a command, on the other hand, in turn justifies the existence of the basic norm, despite a certain circularity of justification in that the fact that this S2’s empowerment understood as a command would not be possible without the basic norm.

Conclusion

In this paper, I have discussed Kelsen's theory of norms, shaped mainly in the period from the 1960s until Kelsen's death. In the course of describing norm theory as an empowered sense of a volitional act directed towards the behaviour of another, a certain inconsistency in the uniformity of understanding of norm theory in Kelsen's late work was revealed, whereby at one time the norm is by definition the subjective sense of a volitional act, at another time it is an objective sense, i.e. a perhaps sense interpreted in accordance with some external and pre-existing norm or such, that just is in accordance with objective sense without further interpretation, but for unknown reason.

This discrepancy, which cannot simply be reconciled by some overarching conception, can, in my view, be overcome in the sense that the first conception of norms will be understood as being directly related to the volitional nature of norm-making in the realm of Sollen, and the second conception will be understood more in terms of pure theory.

It is a separate question, however, whether Kelsen's later thought is an abandonment of pure theory of law and its replacement by an entirely new theory, or whether it is a revision of pure theory of law supplementing the theory with the volitional theory of norms to describe the dynamics of the emergence and functioning of norms directly within the realm of Sollen.

In the next section, I moved on in my analysis of norm theory to isolate empowerment as an important function of norms. With respect to empowering norms, I first explained their importance within norm theory and then introduced and briefly commented on the different types of empowering norms.

Despite the traditional understanding, which coming from Kelsen’s own articulation I have argued in this paper that for a more straightforward understanding of Kelsen's work, it is appropriate to understand empowerment with primary importance and command only with secondary importance. This is due to a certain analogy between empowered norms by positive law, where the empowering norms, as well as the norms that arise from this empowerment, are already in the context of positive law and the established normative system, and the empowered norms by the basic norm, which are applied precisely when the normative system is established, and as an unbridgeable factual condition. In this vein, I have also discussed the functional similarity between the empowering norms and the basic norm.