General Theory of Law and State

Kelsen argues for a radical monism: the state is not a separate entity that creates or stands behind the law, but is identical with the legal order itself . The state is a normative ordering, a system of human behavior and social compulsion, coextensive with law . His argument is that within one community, only one compulsive order can be valid at a time, so there cannot be two separate orders—one for the state and one for law . This eliminates the traditional dualism that treats the state as a juristic person existing prior to and independent of law, a view Kelsen believes leads to theories that magnify state power beyond legal control .

General Theory of Law and State was written after Kelsen arrived in America and represents a deliberate adaptation of the Pure Theory to common law readers. References to Continental European law are minimal compared with examples drawn from the U.S. Constitution and American court cases . The book also contains significant clarifications and changes in Kelsen's positions: a new distinction between Nomostatics and Nomodynamics, a clarified relationship between validity and efficacy (efficacy is a condition of validity, not the reason for it), and an expanded account of law as a coercive order in which coercion can appear apart from sanction, such as administrative demolition of buildings .

General Theory of Law and State is a substantial reformulation of ideas Kelsen had articulated in several German-language books, but it is not identical to the 1934 Reine Rechtslehre or the 1960 second edition . It was the most systematic and comprehensive exposition of Kelsen's jurisprudence available to English readers for decades, presenting the Pure Theory in a form adjusted to American circumstances . The book also contains the volume's later sections on international law, where Kelsen argues for the supremacy of international law over national legal systems, a position he would develop further in later works .

The most persistent criticism is that Kelsen's identification of state and law eliminates the possibility of evaluating state action against a standard independent of the legal order. If the state simply is the law, then the state cannot be measured or judged by anything outside its own normative framework . Critics from the natural law tradition argue this makes Kelsen's theory incapable of grounding resistance to unjust regimes. Kelsen's response is that legal validity is relative to a presupposed point of view: a law ought to be obeyed from the standpoint of the legal system, not necessarily from the standpoint of morality or religion .

Kelsen, born in Prague and based in Vienna, left Europe in 1933 after the Nazi rise to power, eventually settling in the United States. General Theory of Law and State was published by Harvard University Press in 1945, the same year as the war's end . The book allowed Kelsen to introduce his latest ideas on international law to English-speaking readers and to demonstrate that the Pure Theory was a truly general theory fitting the common law as well as the civil law . Its timing placed Kelsen's jurisprudence before an American audience at the moment when the post-war legal order was being constructed .

Reception was muted. Kelsen's writing style, heavily loaded with neo-Kantian jargon and grounded in European legal reasoning rather than case precedent, made him difficult for common law readers . American pragmatists found his highly theoretical and largely deductive approach easy to dismiss, and many critics focused exclusively on the alleged political shortcomings of his approach, ignoring the vast corpus of his thought . As Jeremy Telman observed, 'Kelsen was never unfashionable in the United States because he was never fashionable' . Richard Posner admitted in 2003 that he had never read Kelsen . Despite this, the book remains a standard reference for legal scholars and political scientists .