Kelsen's View of the Addressee of the Law: Primary and Secondary Norms

Abstract

The conventional wisdom, among both laypersons and academicians, is that laws are addressed to the citizenry, or at least to those citizens who could face liability proscribed 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. This approach to the law’s addressee remains unpopular in the United States because it grates against American ideals of populism and democracy, and 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 laws; for understanding certain interpretive rules pertaining to legislative delegations to executive agencies; for understanding the boundaries of executive and judicial power; and for the inherent problems with executive subdelegations of state functions to private corporations. This paper will review Kelsen’s core discussions of the addressee issue and will explore its implications for these and other areas of legal research.

Keywords: Kelsen, audience, addressee, addressed, primary norms, secondary norms, legal theory, positivism

JEL Classification: K00, K10, K19, K40, K42, K49