ABSTRACT
The traditional classification of modes of state action into legislative, executive, and judicial functions (the first being the making of general rules, the second and third the applying and interpreting of them), fitted the facts without too many discrepancies until about the middle of the nineteenth century. Collectivist political theories, however, led to the extension of executive powers, and the water-tight division has become increasingly misleading. Whatever value the classification possesses must now rest on some other basis, possibly on a distinction between procedures, rather than on that between making rules and applying them. Operating a complex modern statute inevitably involves making further rules, and the point at which ministerial legislation merges into the exercise of particular executive discretion is impossible to determine. The value of Kelsen's analysis is that it requires no such distinction; progressive individualization of law is a continuous process, in which the links between the various stages are provided by the notion of 'authorization'. This is consistent with a discretionary element at every level, wider or narrower according to the limits laid down by the norm above. The relevance of this to the relation between general rules and judicial decisions will become apparent when we consider the American Realist school of jurisprudence.
