Kelsen’s Pure Theory of Law – Objectives, Essential And Criticism

Introduction

Hans Kelsen (1881-1973) was an Austrian jurist and philosopher and he began his career as a legal theorist at the beginning of 20th century. He was the judge of the Supreme Constitutional Court of Austria for the duration of ten years from 1920 to1930. His notable works are Principles of International Law and Pure Theory of Law. Hans Kelsen firstly proposed his theory in 1934 and expanded it in 1960. Kelson’s pure theory of law is also known as Normative theory. It is called the pure theory of law by Hans Kelsen because it talks about pure law and it excludes the other factor affecting the definition of law like morality, ethics, economics, sociology, etc. Kelsen’s theory stands at the same level and has a similar importance to Austin’s theory. Kelsen believes the concept that the law should be pure from any investigation such as sociological, political, historical, logical, etc. The law won’t be supported all those parts underprivileged, connected, or mixed. Thus, according to Kelsen, “the law will stand on its own”.

Kelsen’s Pure Theory Of Law

1. Law is a normative science:- According to Kelsen, the law is a ‘normative science’, but law norms may be distinguished from science norms. Kelsen defines ‘science’ as a system of knowledge arranged according to logical principles. According to Kelsen, a norm is a rule prescribing a certain behaviour. He distinguishes between legal norms and moral norms. He told that moral norm only says that “what a person should do or not do” but the legal norm says if a person does any act against the norm then he will be punished by the State. Kelsen does not admit the command theory of Austin as it introduces a psychological element into the definition of law which Kelsen avoids. Kelsen believes the law should be defined as Depsycholised command. Kelsen also considers ‘sanction’ as an essential element of law but he prefers it to call it ‘norm’. Kelsen’s theory of law is an analysis free of all ethical and political judgements or values.

Norms and its validity:

According to Kelsen, in order to assign the legal meaning to an act, we take the help of Legal norms.  NORM is the meaning of an act of will by which certain behaviour is commanded or permitted, or authorized.

The validity of norms is described as :

• Validity means the specific existence of the norm.
• Validity of a norm means that a norm is binding, and an individual ought to behave in the manner determined by the norm.
• Kelsen captures the following two postulates:

1. Every two norms that ultimately derive their validity from one basic norm belong to the same legal system.
2. All legal norms of a given legal system ultimately derive their validity from one basic norm.

• The reason for the validity of a norm can only be the validity of another norm.
• A legal order does not lose its validity when a single norm ceases to be effective nor does a single norm lose its validity if is only ineffective from time to time.
• Effectiveness is a condition for validity but it is not valid. The question of the validity of a norm precedes the question of its effectiveness.
• The reason why a norm is valid and why an individual ought to behave in a certain way, cannot be ascertained by a fact, i.e., by a statement that something is; the explanation for the validity of a norm can’t be a fact.

2. Separation of law from other social sciences and morals:- Kelsen limits the scope of jurisprudence by excluding its relation with other social sciences. He differentiates law from politics, sociology, metaphysics, and all other extra-legal disciplines. According to Kelsen, an acceptable theory of law must be pure i.e. logically self-supporting, and not dependent upon extra-legal values, the law of nature, or any other extraneous factor (such as the sociological, political, economic, or historical influence of law).

3. The Grundnorm:- Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed as ‘Grundnorm’. In other words, we can say that if the other norms are against the Grundnorm then those norms will be invalid. In the pyramidical structure of hierarchy, the Grundnorm is at the top and is fully independent of all the other norms. The subordinate norms are controlled by their superior norms. Kelsen said that all the other norms in our legal system can be traced to the final source and that the final source is Grundnorm. Kelsen states that there should be a Grundnorm in every state not necessarily it’s the same for all the states. Every state can own its different Grundnorm.

For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from the Grundnorm which is Constitution. If in IPC any such law made which is against the Grundnorm then they will become invalid.

The Supreme Court of Pakistan in State v. Dosso[1] had also upheld the Kelsenite theory of effectiveness and validity of revolutionary government which had come into power by overthrowing the legitimate Government and destroying the previous Constitution. However, this decision was subsequently overruled by the Supreme Court (of Pakistan) in Jilani v. Government of Punjab[2],  which rejected the authority of the revolutionary government by overthrowing the existing regime. The same history repealed again in Pakistan in 2007 when the Military General Parvesh Musharraf removed Nawaz Sharif’s popular Government in 2007 by military coupe d’etrat and assumed reigns of Pakistan as its President repudiating the Constitution to suit his own dictatorial military government. He legitimatized in a coup and declared a state of emergency in October 1999 and suspended the Constitution and closed the Prime Minister’s office and put Nawaz Sharif in Jail. He asked the Judges of the Supreme Court to take a fresh oath of allegiance to his new military government and remained in office as President from 2001 to 2008.

These instances clearly show that Kelsenian grundnorm during the revolutionary change has to be determined by the political and extra legal expediency in the context of the prevailing situation and changed conditions.

Objectives Of Kelsen’s Pure Theory

Kelsen rejected Austin’s proposal to set up a Superior authority (Sovereign) as a source and he interpreted the pure principle which is necessary to achieve the ordered symmetry in the legal system, so the sources of law can be traced. Kelsen’s pure theory of law almost covers all legal concepts such as legal personality, rights, and duties, private and public laws, etc.

Essential Features Of Kelsen’s Pure Theory

The essential features of Kelsen’s Pure Theory of law are as follows –

1. The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
2. Legal theory is science, not volition. It is knowledge of what the law is not of what the law ‘ought to be’.
3. The law is normative not a natural science.
4. Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.
5. It is a formal theory confined to a particular system of positive law as actually in operation.

 Criticism

• Grundnorm is vague and confusing.
• Kelsen also said that the law should be kept free from morality. Whether it is possible to keep the law free of morality? Kelsen insisted on the law to be effective and thus he accepted indirectly morality as a part of effectiveness.
• Kelsen attempted to change the law into a science, a theory that could be understood through logic, but on the other hand, he emphasized the validity of the grundnorm to “assumed”, rather than based on some “logic”.
• From where grundnorm takes its validity.
• Kelsen’s pure theory is without any sociological foundation as it excludes all social facts and needs of the society.

Conclusion

Hans Kelsen gave a huge contribution in answering some basic questions about the law. There are mainly three aspects of Kelsen’s Pure Theory about the law.

The First aspect of Kelsen’s pure theory is theories of law should only be related to law. He excludes other social sciences and morality. Law should be in its pure form and this is the reason he named his theory as Kelsen’s Pure theory of law.

The Second aspect of Kelsen pure theory is that whole system of law is the hierarchy of norms in which the basic norm that is also known as Grundnorm is at the apex level and all the other norms check its validity from the basic norm. if any norm is against or contradictory to the basic norm then that norm should be invalid. Also, he said no one can question the validity of Grundnorm.

The Third aspect of Kelsen’s pure theory is that law norms are different from other sciences, law is a normative science. He differentiates between moral norms and legal norms. He belongs to the Analytical school of jurisprudence but he opposes the command theory of Austin.

[1] 1958 SC Pak 533

[2] 1972 SC Pak 139

This article has been written by Priyesh Kumar Yadav, 4th Year B.A. LL.B (Hons) Student at Shri Ramswaroop Memorial University, Lucknow.

Also Read – Historical School of Jurisprudence