On Hoerster’s Misinterpretation of Kelsen in What is Law?

Abstract

This paper critically examines Norbert Hoerster’s interpretation of Hans Kelsen’s legal theory, as presented in Was ist Recht?. While Hoerster correctly identifies certain foundational elements of Kelsen’s Pure Theory of Law—such as the primacy of sanctioning norms—his critique frequently rests on misreadings, oversimplifications, and logical missteps. Key areas of misinterpretation include the nature of secondary norms, the differentiation between taxes and sanctions, the role of efficacy, the derivation of individual norms, the treatment of custom, and the evolution of Kelsen’s position on normative conflicts. The analysis demonstrates that Hoerster often neglects the conceptual precision and internal coherence of Kelsen’s theory, particularly regarding the presupposition of the basic norm and the conditions of legal validity.