ABSTRACT
In early work, Hans Kelsen challenged predecessors and contemporaries with his utterly sceptical view on the role of the imperative in the law, a view especially manifest in his first major treatise, Main Problems in the Theory of Public Law (1911). After a good bit of pulling and hauling, Kelsen arrives, a quarter of a century later, at the view that empowerment is the fundamental modality of the legal norm, with obligation as a derivative concept. Officials are empowered to impose sanctions on legal subjects. To say that an official is obligated to impose a sanction is to say that a second official, at a higher level (Stufe) in the Stufenbau or hierarchical construction of the legal system, is empowered to impose a sanction on the first official should the first official fail to impose a sanction on the legal subject. This marks the completion of Kelsen’s long quest to eliminate the imperative with its – so Kelsen – moral connotations.
