Kelsen, Kletzer, and the Differentiation of Law
The differentiation of law is a pervasive and crucially important topic. Although H.L.A. Hart and others have stressed how law resembles games and other institutions, Hans Kelsen’s focus on law as a “specific” social technique represents a needed focus on what makes law different, or special. Christoph Kletzer admirably follows Kelsen in focusing and what makes law unique, and Kletzer’s claim that law is unique in ordering the use of force is also a valuable contribution to the project of recognizing how force, sanctions, and coercion remain important features of law. Kletzer may go too far, however, in believing that an account of law must show how law is sharply demarcated from other social institutions. A more fruitful and more descriptively and conceptually plausible project would give up the search for rigid demarcation and explore those features of law that may not be unique to law but are concentrated in law. And thus we might think of law not as something that exists or not, but that different institutions might have differing degrees of what we can call “lawness.”