Kelson's pure theory of law

Kelson's pure theory of law

•Scope

Kelson did not favour widening the scope of jurisprudence by co relating it with all social sciences and rigorously insisted on separation of law from politics, sociology, metaphysics and all other extra-legal disciplines. It is quite often said that Kelson's pure theory of law tried to rescue jurisprudence from vague mysticism and thus it was in a way revival of John Austin's 19th century analytical jurisprudence. Like Austin, Kelson divested moral, ideal or ethical elements from law and wished to create a "pure' science of law devoid of all moral and sociological considerations. He rejected Austin's definition of law as a command because it introduces subjective considerations whereas he wanted legal theory to be objective. Likewise, he also discards the notion of justice as an essential element of law because many laws, though not just, may still continue as law. He defines 'science as a system of knowledge or a "totality of congnitions, systematically arranged according to logical principles.

•Law as Normative Science

Kelson described law as a "normative science as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered in the form of 'is' (das Tuin which is an essential characteristic of all natural sciences. But the science of law is knowledge of what law ought to be (das-sollen). It is the ought character which provides normative character to law. For instance, if 'A' commits theft he ought to be punished. Like Austin, Kelson also considers sanction as an essential element of law but he prefers to call it "norm'. Thus according to Kelson, 'law is a primary norm which stipulates sanction. It is called positive law because it is concerned only with actual and not with ideal law.

According to Kelson. "norm (sanction) is rules forbidding or prescribing a certain behaviour. For him, legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprise legal urder. He distinguishes moral norm with legal norm. For example, moral norm tays that one shall not steal" but since it has no punitive consequence, it lacks coercive force. But if it is to be reduced in form of legal norm, it would say, "if a person steals, he ought to be punished by the competent organ or State".

The 'Grundnorm'

Kelon's pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed as Grundnorm". Thus, Grundnorm or basic norm determines the content and gives validity to other norms derived from it. Kelson has no answer to the question as to where from the Grundnorm or basic nonn derives its validity, He considers it to be a meta-legal question in which jurist need not intrude. Commenting on this point, Julius Stone rightly comments that just as Austin's sovereign in a particular society is a mere starting point for his legal theory, so also basic norm has to be accepted as a hypothetical starting point or fiction which gives a legal system coherence and a systematic form.

Pyramid of Norms

Kelson considers legal science as a pyramid of norms with Grundnorm (basic norm) at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The basic norm which is otherwise called Grundnorm is however, independent of any other norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the Grundnorm has been termed by Kelson as 'concretisation of the legal system. Thus, the system of norms proceeds from downwards to upwards and finally it closes at the Grundnorm at the top. The Grundnorm is taken for granted as a norm creating organ and the creation of it cannot be demonstrated scientifically nor is it required to be validated by any other norm. For example, a statue or law is valid because it derives its legal authority from the legislative body, the legislative body in its own turn derives its authority from a norm i.e., the Constitution. As to the question from where does the Constitution derive its validity, there is no answer, and therefore, it is the Grundnorm, according to Kelsonite conception of pure theory of law. In his view, the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

The legal order as conceived by Kelson receives its unity from the fact that all manifold norms of which the legal system is composed can be traced back to a final source. This final source is the basic norm or the Grundnorm which he defined as "the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity.

•Salient Features of Kelson's Pure Theory of Law

1. The theory is aimed at reducing chaos and confusion created by the supporters of natural law philosophy.

2. Pure Theory of law deals with the knowledge of what law is, and it is not concerned about what law ought to be.

3. The theory considers law as a normative science and not a natural science.

4. Kelson's Pure Theory of Law is a theory of norms not so much concerned with the effectiveness of the legal norm.

5. It is formal theory confined to a particular system of positive law as actually in operation.

•Implications of Kelson's Pure Theory of Law

Kelsonls Pure Theory of Law covers a wide sepectrum of legal concepts such as State, sovereignty private and public law, legal personality, rights and duty etc.

According to Kelson law and State are not different but they are infact one and the same. Likewise, there is no difference between public and private law. Kelson also denies any legal difference between natural and juristic personality. For him, all legal personality is artificial and derives its validity from grundnorm. He does not believe in the existence of individual rights and asserts that "legal duties" are the essence of law. In his view legal right is merely the duty as viewed by the person entitled to require its fulfilment.

•Criticism of Kelson's Theory

Firstly, it excludes all references of social facts and felt needs of the society. Thus, his pure theory of law is without any sociological foundation.

Secondly, Kelson's assertion that all the norms excepting the basic norm (Grundnorm) are pure, has no logical basis. One really fails to understand as to how subsequent norms which derive their authority from the Grundnorm can be pure when the grundnorm itself is based on a hypothesis that it is an outcome of the combination of various social and political factors and circumstances in a given situation. Commenting on this point, Julius Stone has sarcastically remarked, "we are invited to forget the illegitimacy of the ancestor in admiration of the pure blood of the progeny".

Thirdly, the theory is found to be based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of political ideology and social needs.

Fourthly, as stated by Friedmann, Kelson's theory provides no solution for the conflicts arising out of ideological differences. His theory rejects the element of justice as a mere emotion which is indeed, not true. Law cannot be completely divorced from ethics and morality which gives it a honourable place in the society.

•Distinguish between Austinian theory of law and Kelson's pure theory of law

Comparative Analysis of Austin's and Kelsen's views on Law. 

Despite contradictions between Austin's imperative theory of law and Kelsen's pure theory of law, the two resembled in many aspects. Kelsen himself accepted that he was unaware of Austin theory of law when he was propounding his own pure theory of law. It must however be made clear that the Vienna school propounded by Aelier and his supporters did not base their legal Philosophy on Austin) positive thinking. Both ezin and Kelsen held common views on certain issues but they differed on many points

(1) Both opposed natural law theory, although on different grounds. Austin opposed natural law since it included within it the elements of justice while Kelsen opposed it because of his dissatisfaction about the Austrian Civil Code of 1811 which was predominantly based on the natural law philosophy.

(2) Both Austin and Kelven recognised the distinction between law as it is and as it ought to be. Austin kept 'ought outside the purview of law because it lacks command of the sovereign. Kelven separated natural science from law became the former is based on the rules of cause and effect which are not applicable in case of law.

(3) There was difference of opinion between Austin and Kelser about the scope of Jurisprudence. Kelsen & pure theory of law was free from the influence of time and place because of its universal application.

(4) Austin's theory is static while that of Kelsen is dynamic.

(5) Austin considers the existence of state or sovereign as a pre-condition for the existence of law but Kelsen has refuted this dualism because in his view laws and state are one and the same.

(6) Custom and international law are not treated as law by dustin but Kelsen recognised them as law. Kefsen places international law higher than the law of the state.

(7) Austin's analytical approach lacks specificity while Kelsen has developed

his legal order as a pyramid of norms.

•Criticism of Kelsen's Pure Theory of Law

Kelsen's Pure theory of law has invoked criticism from many quarters. The main among his critics are De Allen, Friedmann and Lauterpacht

According to Dr Allen coordinate sources like customs, statutes and precedents do not admit of arrangement in the hierarchical pattern of Kelsen But this criticism seems to be misconceived because these sources are only material sources of law and not formal sources which confer authority of law upon a given norm. That authority is state which is the grund norm for Kelsen

Friedmanur considers Kelsen's theory of law as inadequate in the present context when law has to interact with other social disciplines such as Sociology, Economics, Psychology and so on, therefore there is greater thrust on sociology of law rather than its abstract prepositions.

Professor Lauterpacht a disciple of Kelsen has criticised Kelten's theory on the ground that it accepts the primacy of international Law over national law and thus permitted natural law a backdoor entry. He opines that, lawness of international law cannot be derived from the grundnorm itself.