What is Pure theory of law

ABSTARCT

Pure Theory of Law

Hans Kelsen was a legal and political philosopher, an Austrian jurist belonging to legal positivism school and was considered as a leading jurist of time.

He was considered as one of the most highly influential scholars of the 20th century especially in Europe and Latin America. He received 11 honourary doctorates and innumerable awards from all over the world.

Pure theory of law was propounded by Hans Kelson (a professor in Vienna school) and therefore this theory is also known as Vienna school of legal thought. This theory came into after the war of Europe.

The Kelsen’s pure theory of law is considered as a reaction against the idea and working of modern schools, as the modern schools have opened the boundaries of jurisprudence to such a limit that they are now co terminus with that of social science. This theory has rejected the idea of natural law in society.

Hierarchy of normative relations

For him hierarchy of normative relations is science of law. He adding to the theory of Kant forces on what law is and it’s structured rather than what law ought to be.

This theory forces on clarifying the relationship between the fundamental and lower norms. But he never pointed as to say if the fundamental norms are it right or wrong.

Grundnorm, Dynamic process

Normally the legal norms get their validity from any external source that can be ought norms or sanctions. And he also considers that sanction is a element of law just like Austin. But the concept of sanctions from both’s point of view is different. 

According to Austin sanction implies as someone is standing outside the rule of law but according to Kelsen it is another kind of norm.

Criticism against Kelsen’s theory

Pure theory of law is theoretical analysis of legal norms and can be easily applicable in a state. And when it comes to international law he comes to the opinion of what it ought to be rather than what it is.

Kelsen’s contribution

His contribution in jurisprudence is considered of great value and he also tried to put his contribution in modern legal thought. 

His theory was much criticised in the beginning as it was talking about something original but time by now it is getting appreciation from the jurists.

Pure Theory of Law

I. Introduction

Pure theory of law was propounded by Hans Kelson (a professor in Vienna school) and therefore this theory is also known as Vienna school of legal thought. This theory came into after the war of Europe.

The Kelsen’s pure theory of law is considered as a reaction against the idea and working of modern schools, as the modern schools have opened the boundaries of jurisprudence to such a limit that they are now co terminus with that of social science. This theory has rejected the idea of natural law in society.

Kelsen’s book titled “The  Pure Theory” of Law was published in two edition, one in Europe and the other one in California after he joined at Berkeley as a faculty.[1]

The foundation stone of pure theory is Grundnorm and the hierarchy of norms are inspired from the above principles. By seeing the situation of the world war and the destruction so created by the war, many people were of the opinion that some effective international organisations must be created so that such activities can be controlled.

II. Pure theory and other theories 

Austin’s theory and Kelsen’s theory both are closely related to each other. Both of them are talking about the coercive character of law and are both from the positivist’s school. Kelsen’s theory in some manner was also related to sociologist school’s thinking.

III. Theory of positive law

According to Kelsen pure theory of law is theory of positive law. It is what law is and not what law ought to be. Law not political law but it is science.

Pure theory of law is concerned only with that part of knowledge that deals with law and does not include anything which does not belong to law as subject matter and therefore it frees the science of law from the foreign elements.

According to this theory of law the science of law includes legal norms and does not recognise natural realities.

The pure theory of law helps in separating both the legal norm concepts and moral norm concepts.

A norm when born by a definite procedure or by definite rule is considered as legal norm. A legal norm is produced by fundamental rules and this is considered as fundamental condition of law making. Whereas the individual norm does not require to be produced by the fundamental rules, they can be created by the act of will.

IV. Pure theory of law 

Kelsen says that law is a normative science and the same does not goes with the legal norms. He distinguished between norms of science and law norms.  For him norms of science ate norms of being (Sein) whereas the law norms are ought norms (Sollen).[2] According to him if one does any wrong then he must be punished. And therefore ought norms and the morality norms differ from each other as they ought norms are backed by physical compulsion whereas the same is not in case of morality norms.

V. Hierarchy of normative relations[3]

For him hierarchy of normative relations is science of law. He adding to the theory of Kant forces on what law is and it’s structured rather than what law ought to be.

This theory forces on clarifying the relationship between the fundamental and lower norms. But he never pointed as to say if the fundamental norms are it right or wrong.

Thus the pure theory of law does not include ethics or natural law and also does not support the thinking of sociological school and hence we can say that he is in the favour of general jurisprudence. 

VI. Grundnorm, Dynamic process

Normally the legal norms get their validity from any external source that can be ought norms or sanctions. And he also considers that sanction is a element of law just like Austin. But the concept of sanctions from both’s point of view is different. 

According to Austin sanction implies as someone is standing outside the rule of law but according to Kelsen it is another kind of norm.[4]

Thereby we can say that every legal norm gains its force from general norm that backs it and these general norms are backed by initial hypothesis called Grundnorm. The Grundnorm is considered as the starting point of legal system. From here the legal system expands more in detail and becomes more specified. And this process of growing is known as gradual concretization of Grundnorm.

VII. Grundnorm- Minimum effectiveness 

The different legal systems have Grundnorm in different forms. For example, in United States of America, it is the constitution, for Great Britain it is Crown in Parliament. Pure theory of law does not talk about the nature and origin of Grundnorm.[5] The main task of jurist is just to clarify the relationship between the Grundnorm and inferior norms. It is advisable that Grundnorm must be discovered before applying Kelsen theory to any legal system. 

VIII. Essential of Kelsen’s theory

-> The aim of this theory of law is to reduce chaos and multiplicity to unity.

-> Legal theory is in connection with what law is and not what law ought to be.

-> Law under this theory is considered as normative science.

-> Legal theory of law is not concerned with legal norms effectiveness.

-> This theory of law is formal.

IX. Implications of pure theory of law [6]

A) Law and state

Kelsen denies the personal entity character of sovereignty in a society. Similarly he denies the existence of state different from that of law. He is of the opinion that when all the law derives its validity from Grundnorm then there can be no existence of supreme power in the society. He further says that state is nothing but a system that governs the behaviour of people living in it, in a normative order.

b) Public and private law

For him there is no difference between public and private law. He says that the source of deriving validity of any law is same then no differences on subject matters be made in certain respects. Private interest protection is being included in protection of public interest. 

C) Natural and juristic person 

According to him, there is no difference between natural and juristic persons        . All the legal personalities are considered as artificial in law and personality in law means anyone who is capable of bearing rights and duties. Human beings in law are entitled to rights and ate subject to duties. 

D) No individual rights 

According to Kelsen point of view there is nothing known as individual rights in law. For example, in criminal law the state holds a case in his name rather than the accused itself. The reason for not considering individual rights as part of law is that there can be no inalienable right of an individual.

X. Supremacy of international law 

The world war created a lot of destruction in the world which made the people in the world of creating an effective and strong international organisation so that we can have control over the arbitrary activities. But this concept of Kelsen created a lot of problems for himself. He says that international law is primitive law so that he can remove the difficult to the fact that international law does not contain all the characteristics of law. He said that international law must also be considered as judicial order. He considers international law as in its early stage and hopes that it will include all the characteristics of modern law.

XI. Criticism against Kelsen’s theory[7]

A) Grundnorm is vague and confusing 

The concept of Grundnorm given by Kelsen was greatly criticised by many of the jurists as they considered it to be vague and confusing and were of the opinion that it cannot be applied in all legal system. 

Historical school also criticised this point as they were saying that the source of law is custom and nothing else. 

B) Purity of norm cannot be maintained

Jurist criticised by saying that for applying the test of minimum effectiveness one has to look into polical and social facts and this may cause adulteration in the pure theory of law. 

C) Natural law not included 

He did not take into consideration the natural law as he was presenting a very scientific analysis of legal order and therefore he could not take into consideration these extra legal norms. But this does not mean that he denies the existence of natural law, he incorporates natural laws in positive laws.

Pure theory of law is theoretical analysis of legal norms and can be easily applicable in a state. And when it comes to international law he comes to the opinion of what it ought to be rather than what it is.

XII. Kelsen’s contribution

His contribution in jurisprudence is considered of great value and he also tried to put his contribution in modern legal thought. 

His theory was much criticised in the beginning as it was talking about something original but time by now it is getting appreciation from the jurists.

XIII. Conclusion

Kelsen theory forces on what law should be and its practice in the society. His theory is based on hierarchy of norms and the top of the hierarchy is called Grundnorm. No question can raise on the validity of Grundnorm. Other norms get their validity from this Grundnorm. This theory presents dynamic legal order. The theory maintains constistency between various parts, making it a logical system. 

[1]http://en.wikipedia.org/wiki/Hans_Kelsen.

[2] Hans Kelsen : General Theory of Law. Translated by Anders Wedberg. New Jersey : The lawbook Exchange, Ltd. 2009, p.42.

[3] Hans Kelsen : Pure Theory of Law. Translated by Max Knight. New Jersey : The Law Book Exchange Ltd,2002, p.1.

[4] Ibid, p.33.

[5] Ibid, p.31.

[6] Ibid, p. 1-355.

[7] Imran Hassan Khan Nyazee : Jurisprudence, 2nd ed. (Rawalpindi and Lahore : Federal Law House, 2010), p.96