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LL.M – I, Paper- I (101) : Legal Theory Unit – I, Part – 3(a) Date – 06 - 01 - 2023
KELSON’S PURE THEORY OF LAW
Dr. Sudhir Kumar, Facilitator, Department of Law, Kurukshetra University, Kurukshetra. E mail – sudhirvats22@gmail.com PRESENTATION OF CONTENTS Kelson’s Pure Theory of Law
Introduction
Objectives of Kelsen’s Pure Theory
Principles under Pure Theory of Law (1) Law as a normative science (2) Grundnorm (3) Hierarchy of Norms (4) Validity of Norms (5) Sanctions Criticism Pure Theory of Law and its Application under the Indian Legal System Conclusion 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. 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”. More precisely, it supplies us with a collection of core legal ideas to employ when seeking to comprehend and express the law in a scientific manner, such as ‘legal system,’ ‘norm,’ ‘right,’ ‘duty,’ ‘sanction,’ and ‘ imputation. ’ We may argue that Pure Theory’s goal is to create the theoretical groundwork for other legal disciplines like Contract Law, Constitutional Law, Legal History, Comparative Law, and so on. 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. Principles under Pure Theory of Law (1) Law as a normative science Law is a ‘normative science,’ according to Kelsen, yet legal norms can be separated from scientific norms. ‘ Science ,’ according to Kelsen, is a form of knowledge organised around logical principles. A norm, according to Kelsen, is a rule that prescribes a specific behaviour. He makes a distinction between legal and moral rules. He said that a moral standard just states ‘ what a person should do or not do ,’ but a legal norm states that ‘ if a person violates the norm, he would be penalised by the stat e’. Law is distinguished from politics, sociology, philosophy, and all other non-legal sciences, according to him. According to Kelsen, an appropriate theory of law must be pure, that is, logically self-contained and therefore not reliant on extra-legal values, natural law, or any other external source (such as the sociological, political, economic, or historical influence of law). The Command Theory of Austin is not accepted by Kelsen because it incorporates a psychological aspect into the concept of law, which Kelsen rejects. Kelsen considers ‘ sanction ’ to be an important part of the law, but prefers to refer to it as ‘ norm .’ Kelsen’s philosophy of law is devoid of any ethical or political ideals or judgments.
As a result, the last level is the greatest norm, known as the fundamental norm or Grund Norm, emerges, which serves as the foundation for all future norms. The Grund norm is the cornerstone of Kelsen’s ideology. The Grund norm can be used to determine the legality or validity of any norm. The Grund norm’s validity cannot be objectively assessed. The Grund norm serves as a common reference point for the validity of the positive legal order, or all of the legal system’s norms. The Grund norm must be effective, that is, it must be followed by the general public. The validity of the Grund standard is referred to as efficacy. (4) Validity of Norms The term ‘validity’ refers to the existence of a given standard. It also refers to the fact that a norm is legally obligatory and that an individual must follow the norm’s instructions. The following two postulates are stated by Kelsen:- (1) Every two norms that derive their validity from the same fundamental standard are part of the same legal system. (2) The legitimacy of all legal norms in a particular legal system is ultimately derived from one basic standard. The validity of another norm is the only explanation for a norm’s validity. When a single norm ceases to be effective, a legal order does not lose its validity, nor does a single norm lose its validity if it is just ineffectual from time to time. Effectiveness is a criterion for validity, but it is not a criterion for validity. The question of a norm’s validity comes before the question of its efficacy. A fact, i.e., a declaration that something is, cannot be used to determine why a standard is legitimate or why a person should behave in a specific manner; the reason for the correctness of a norm cannot be a fact. While the traceability of a norm to an existing basic norm which determines its validity, efficacy refers to the norm’s effectiveness or enforcement. In other words, it examines if the rule is followed and whether violations are punished. If the response is affirmative, then the standard is effective. It isn’t otherwise. As a result, the principle of legitimacy is constrained by the principle of efficacy. Although inefficacy may not have an immediate impact on the validity of a norm, it may do so in the long run. For example, the system of norms may lack its validity if the overall legal order or the fundamental norm loses its efficacy.
In other words, they lose their validity not only when they are declared invalid by the Constitution, but also when the entire order is rendered ineffective. Norms must be accepted by a large number of people. As a result, validity entails higher-level legal approval and a minimum level of efficacy. The legitimacy of every single standard of the order is contingent on the efficacy of the entire legal order. Each standard in the system depends on the validity of a higher norm. (5) Sanctions Kelsen uses sanctions to emphasise the law’s coercive aspect. Because it brings a psychological aspect into a theory of law, Kelsen rejects Austin’s interpretation of sanction, which views it as a mandate from the Sovereign. As a result, he favours Grundnorm, which gives legislation legitimacy. Its authoritative character lends credibility to any legal system. The Grundnorm’s sanctioning authority makes it applicable to all other laws. According to Kelsen’s study of the sanctioned view of the law, legal norms are articulated in the form that if a person does not follow a certain ban, the courts must impose a punishment, whether criminal or civil. Criticism (1) Grundnorm is vague and confusing. (2) 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. (3) 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”. (4) From where grundnorm takes its validity. (5) Kelsen’s pure theory is without any sociological foundation as it excludes all social facts and needs of the society. Pure Theory of Law and its Application under the Indian Legal System The fact that the Constitution of India may very well be amended indicates that it is possible to deviate from the Constitution’s authority. If a constitutional clause is significantly changed, the laws that fall under it lose their legality. If a provision of the Constitution is repealed, the result will be the same. As a result, calling the Constitution the Grundnorm is incorrect.
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.
