Abstract

Focusing on Hans Kelsen's concept of the 'ought', the main problem is whether the 'ought' qua obligation or the 'ought' qua empowerment or competence serves as his fundamental normative concept. Stanley L Paulson has adduced strong textual arguments for the thesis that the fundamental role played by empowerment represented Kelsen's opinion ever since the late 1930s. But to accept the thesis of the fundamental character of empowerment as an interpretive thesis is not, eo ipso , to accept it as a norm-theoretic thesis. In light of this background, I take up three arguments for conceiving the modality of obligation as being at least as fundamental: the chain argument, the argument from unlawfulness, and the argument from overload. This leads to the conclusion that Kelsen's 'ought' would be incomplete if it did not comprise obligation as a modality that is at least as fundamental as the modality of empowerment or competence