Introduction:
A connected theory to that of Hart’s analysis of law is the theory of the Austrian jurist, Hans Kelsen, the great jurist, who was responsible for the
framing of the Austrian Constitution. Kelsen advocated the ‘pure’ theory of
law. He called it pure, because the theory describes only the law, excluding
everything that is strictly not law. It seeks to lay down what is the law, and
not what the law ought to be.
Kelsen was of the view that, to be acceptable, any theory of law must be
‘pure’, that is, logically self-supporting, and not dependent on any extraneous
factors, i.e. not influenced by factors like natural law or sociological or
political or historic influences.
Kelsen considered the systematic character of the legal system to
consist in the fact that all its rules or norms are derived from the same basic
rule or rules, which he has called ‘grundnorms’.
Where there is a written constitution, as in India or the United States, the
basic grundnorm will be that the constitution ought to be obeyed. However,
where there is no written constitution, as in England, Kelsen postulates that
we must look to social behaviour for the grundnorm.
The English legal system, according to him, is based on several such
basic rules, such as the theory of parliamentary supremacy, the binding force
of precedents, and so on. Such basic rules are very important to any legal
system; they are to a legal system what axioms are to geometry; they constitute
the initial hypothesis from which all other legal propositions are derived.
Hart's view differs from that of Kelsen's, in as much as Hart refuses to
look upon such rules as hypothesis. According to Hart, the basic rules of a
legal system do not consist of something, which one has to assume or postulate.
Rather, it is itself a rule accepted and observed in a particular society.
According to Hart, although the rule of parliamentary sovereignty in
England cannot be derived from any other rule of English law followed in
practice and looked upon as a standard, which has to be complied with.
Conclusion: Kelsen considered the systematic character of the legal system to
consist in the fact that all its
rules or norms are derived from the same basic rule or rules, which he has
called ‘grundnorms’.
KELSEN'S PURE THEORY OF LAW IN DETAILS
Generally, Law is a system of rules and regulations which are enforced
through social institutions to govern human behavior; although the term "law" has no universally accepted
definition. Laws can be made by legislatures through legislation resulting in
statutes, the executive through decrees and regulations, or judges through
binding precedents. The formation of laws themselves may be influenced by
constitution and the rights encoded therein. The law shapes politics,
economics, and society in various ways and serves as a mediator of relations
between people.
Legal theorists, hope to obtain a deeper understanding of the nature of
law, of legal reasoning, legal systems and of legal institutions. Generally
jurisprudence can be broken into categories both by the type of question
scholars seek to answer and by the theories of jurisprudence, or schools of
thought, regarding how those questions are best answered.
Answers to these questions come
from two primary schools of thought:
1. Natural
Law 2. Legal Positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by eighteenth and
nineteenth-century legal thinkers such as Jeremy Bentham (d. 1832) and John
Austin (d. 1859).
According to the Black’s Law Dictionary, ‘Legal Positivism’ is defined
as: “Social perspective of a legal rule's validity being authorized by law and
socially accepted versus being based on natural or moral law. View of man-made
law as posited by man for man, rather than being fair.”
In simple words, ‘Law’ may be promulgated, passed, adopted, or otherwise
‘Posited’ by an official or entity vested with authority by the Government to
prescribe the values and regulations for the community.
Hans Kelsen
Hans Kelsen (d. 1973) was an Austrian jurist, legal philosopher and
political philosopher belonging to Legal Positivism school of thought. Roscoe
Pound lauded Kelsen as “undoubtedly the leading jurist of the time.”
Kelsen is considered one of the pre-eminent jurists of the 20th century
and has been highly influential among scholars of jurisprudence and public law,
especially in Europe and Latin America although less so in common-law
countries. Kelsen was the most influential legal philosopher of the last
century. He received 11 honorary doctorates and innumerable awards from all
corners of the world.
His book titled “The Pure Theory of Law” was published in two editions,
one in Europe in 1934, and a second expanded edition after he had joined the
faculty at the University of California at Berkeley in 1960.
“PURE” Theory of Law
In the third paragraph of the opening chapter of his book, Kelsen
himself gives the reason for calling his theory as “Pure”. He writes: “It is
called a ‘pure’ theory of law, because it only describes the law and attempts
to eliminate from the object of this description everything that is not
strictly law; its aim is to free the science of law from alien elements. This
is the methodological basis of the theory.”
Definition of Law
Kelsen defined ‘law’ in following two headings.
Law: An Order of Human Behaviour:
“When we compare the objects that have been designated by the word “law” by
different peoples at different times, we see that all these objects turn out to
be ‘orders of human behavior’.”
Law: A Coercive Order: “A second characteristic is that they are ‘coercive orders’. This means that they react against certain
events, regarded as undesirable because detrimental to society, especially
against human behavior of this kind, with a coercive act; that is to say, by
inflicting on the responsible individual an evil – such as deprivation of life,
health, liberty or economic values
–which if necessary, is imposed upon the affected individual even
against his will by the employment of physical force.” 3
In simple words, we can say that ‘law’ according to Kelsen is: “Orders
of human behavior that react against certain events, regarded as detrimental
against such orders of human behavior, with a coercive act.”
Salient Features of Kelsen’s Pure Theory of Law
1. Law as Science: Kelsen tried to present a theory that could be attempted to convert law
into a science, a theory that could
be understood through logic.
2. As a Positive Law: In the first paragraph of Pure Theory of Law, Kelsen introduces his
theory as being a theory of positive
law. This theory of positive law is then presented by Kelsen as
forming a
hierarchy of laws which start from a Basic Norm, i.e. ‘Grundnorm’ where all
other norms are related to each other by either being inferior norms.
3.
Law “As it is”: Kelsen emphasized that analysis
must focus on law as ‘it is’ actually laid
down, and not as ‘it ought to be’.
4.
Law Contains set of Rules: Kelsen
emphasized that the Law contains mass of rules, and a theory should organize them in an ordered pattern.
5.
Law and Morality: Kelsen's strict separation of law
and morality is an integral part of his presentation
of the Pure Theory of Law. The application of the law, in order to be protected
from moral influence or political influence, needed to be safeguarded by its
separation from the sphere of conventional moral influence or political
influence. Kelsen did not deny that moral discussion was still possible and
even to be encouraged in the sociological domain of inter-subjective activity.
However, the Pure Theory of Law was not to be subject to such influences.
6.
Theory of Law should be Uniform: According
to Kelsen, the theory of law should be applicable
at all times and all places.
7.
Law is ‘Ought’ Proposition: A norm is
a proposition or an if statement: “If A happens,
then B is ought to happen.” Thus: “If
someone commits a theft, the judge ought to punish him.” A
legal system is composed of
series of such norms.
8.
Static Aspect of Law: Kelsen
distinguished the static theory of law from the dynamic theory of law. The static theory of law
represented the law as a hierarchy of laws where the individual laws were
related the one to the other as either being inferior, the one to the other, or
superior with respect to each other.
9.
Dynamic State of Law: Kelsen
discussed the dynamic theory of law. In the dynamic theory of law, the static theory of law comes into direct contact with
the governmental administration of the state which must recognize the function
of the legislature in the writing of new law. At the same time there is also
the understanding of law as being affected by the accumulated standing law
which represents the decisions of the courts which in principle become part of
the hierarchical representation of the pure theory of law. Importantly, Kelsen
allows for the legislative process to recognize the law as the product of
political and ethical debate which is the product of the activity of the
legislature before it becomes part of the domain of the static theory of law.
Basic Core of Kelsen’s Theory-“The Grundnorm”
The law according to Kelsen is a system of norms. He maintained that
legal norms are created by acts of will or in other words, products of
deliberate human action, as opposed to moral norms which is by God. In relation
to this, the pure law theory takes only into consideration only the norms
created by the acts of human beings, not norms which come from other superhuman
authorities.
Central to the Pure Theory of Law is the notion of a “basic norm” – The
Grundnorm — a hypothetical norm, presupposed by the jurist, from which in a
hierarchy all ‘lower’ norms in a legal system, beginning with constitutional
law, are understood to derive their authority or ‘bindingness’. In this way,
Kelsen contends, the bindingness of legal norms, their specifically ‘legal’
character, can be best understood without it ultimately to some suprahuman
source such as God, personified Nature or of great importance in his time — a
personified State or Nation.
Validation of Norms
According to Kelsen, there must be some Norm, that validates all other
norms, and such Norm is to be called as the Grundnorm. He insisted that the
grundnorm need not to be same in every legal
He further argued that there could be more than one grundnorm, like in
Britain, there are three grundnorms: statute, precedent and custom. But, the
requirement for having more than one grundnorms is that they must not be in
conflict with each other.
Meaning and Validation of the Grundnorm
1. “Assumed”
Validity of the Grundnorm
According to Kelsen the validity of the grundnorm is not based upon some
other norm behind it, rather its validity is to be ‘assumed’. Thus, one cannot
point at some other norm in order to declare the grundnorm as valid.
2. Abidance – A Condition
Kelsen insisted that certain number of people obeying the law is not the
reason for the validity of the grundnorm. Rather, certain number of people
obeying the law is a condition for the validity of the grundnorm, and thus of
other norms of the system.
According to him, a universal adherence is not necessary; rather, all
that is necessary is a minimum adherence.
3. Altering the Grundnorm
Kelsen argued that when a grundnorm ceases to attract minimum adherence,
it ceases to act as a grundnorm; basis of the legal order and any other
proposition which does receive support will replace it. Such a change is called
‘Revolution’ in Law.
Criticism levelled against Kelson’s pure theory of law
1. Kelsen’s
theory points out that the Grundnorm is presupposition that the constitution
ought to
be
obeyed. The constitution of a country is a sociological, political document and
so the Grundnorm is not pure.
2. Kelsen also pointed out that law should be kept free from morality. A
general question should be raised here, whether is it possible to keep law free
from morality? Kelsen made emphasis in the effective of law and by this way he
indirectly accepted the morality as a part of effectiveness.
3. Kelsen
attempted to convert law into a science, a theory that could be understood
through
logic,
but on the other hand he insisted on the validity of the grundnorm to be “assumed”,
rather than based upon some “logic”.
4.
Kelsen attempted to locate law
and legal norms in a middle realm between absolute moral values and social
facts. Hence, the denial of the relevance of moral considerations makes legal
science sterile and useless, and the denial of the factual nature of law
disconnects it from reality.
Conclusion
Hans Kelsen, one of the most influential legal philosophers of the last
century has contributed to the answering of certain fundamental questions about
law.
The first of these is the relation of law to theories of what the law
should be, on the one hand, and to the institutions, practices and mores of its
society, on the other.
The second aspect in Kelsen’s theory is that the whole system is
interconnected with each other in the form of a hierarchy of norms, and there
is a basic norm which stands at the top of this heirarchy called the grundnorm,
which is of the highest order, and the validity of this grundnorm is to be ‘supposed’.
All other norms derive their validity from this grundnorm, and no one can
question the validity of this grundnorm.
Another aspect of Kelsen’s theory is that it presents us with a dynamic
legal order rather than a merely static one. The law tends to be orderly
through maintaining consistency between its various parts, through the
broadening and simplifying of principles and conceptual compartments and, in
short, through tending to become a logical system, a perfect and complete
logical system.
jurisprudence
