Coincidence or derivation? When Julius Stone accused Hans Kelsen of plagiarism

Julius Stone, while a law professor at the University of Sydney, denounced Hans Kelsen’s notion of a ‘basic norm (Grundnorm)’ as mere ‘mystery and mystique’. This accusation, and Kelsen’s trenchant response to it, are well known. Less well known, yet an integral element of that exchange and responsible for some of its sharpness, is Stone’s careless allegation that in another aspect of his theory of law, the distinction between a ‘nomostatic’ and a ‘nomodynamic’ approach, Kelsen had plagiarised from John Henry Wigmore. This article is an attempt to provide a definitive account of that moment. It is also a study in the inability of a particular kind of jurist to grasp theory that has been constructed in a nonempiricist framework.