This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. In this article, the author has written briefly about the pure theory of law which was given by Hans Kelsen.
This article has been published by Sneha Mahawar.
Table of Contents
The pure theory of law is a broad theory of law that complies with legal positivism’s principles. Its technique is structural analysis, and its goal is to comprehend the law as it is, not as it should be. 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.
Hans Kelsen, a renowned Austrian lawyer, and philosopher proposed the concept of Pure Theory of Law. At the turn of the twentieth century, Kelsen began his long career as a legal thinker. Traditional legal philosophies were hopelessly tainted, according to Kelsen, with political ideology and moralising on the one hand, and efforts to reduce the law to natural or social sciences on the other. Both of these reductionist initiatives were proven to be substantially defective by him. Instead, Kelsen proposed a ‘pure’ philosophy of law that avoided any reductionism.
Kelsen’s argument claims that when natural law contains aspects of politics, sociology, or other factors, there is no need to explain it. He felt that any potential of morality, sociology or any other factor should be removed from understanding the pure or natural law. As a result, the theory is known as the Pure Theory of Law.
A short note on Hans Kelsen : the propounder of Pure Theory of Law
Hans Kelsen was born in Prague in 1881 and was a law professor at Vienna University. He served as a judge in Austria’s Supreme Constitutional Court from 1920 to 1930. He afterwards relocated to England and, in 1940, to the United States, where he became a Professor of Law at many American universities. He lastly was an emeritus professor of political science at the University of California, where he developed his Pure Theory of Law in the Twentieth Century, which piqued international attention. Kelsen is the author of a number of books, including the Austrian Constitution (1920), General Theory of Law and State (1945), The Pure Theory of Law (1934) revised (1960), Principle of International Law (1952), What is Justice (1957), and others.
Kelsen has steadfastly rejected jurists’ efforts to widen the scope of jurisprudence to include the social sciences, and he has steadfastly campaigned for the separation of law from metaphysics, politics, and sociology.
Kelsen is noted for his most thorough positive law development. His pure law theory is founded on logic. It is normative in character and free of the influence of other knowledge of the world, particularly that of the social sciences. In the field of legal philosophy, Hans Kelsen’s views remain a significant point of reference. Kelsen’s impact may still be felt in fields including general theory of law, constitutional law, international law, philosophy of law, justice concerns, sociology, and politics.
Pure Theory of Law
A theory of law should be “pure,” that is, free of extra-legal influences of any type. As a result, Hans Kelsen believed in and promoted a theory that was free of any extra-legal aspects such as sociology, philosophy, ideology, psychology, politics, ethics, and so on. Kelsen quickly deduced that law belongs to the human sciences rather than the scientific sciences. According to Kelsen, the pure theory of law is so named because it exclusively describes the law and strives to exclude anything that isn’t precisely legal from the object of this description: Its goal is to free legal science of alien components. On the basis of two elements, Kelsen stated that his hypothesis is pure. For example, it distinguishes between law and fact. Second, it distinguishes between morals and law. Kelsen’s views go counter to the notion of precedents, which states that legal ideas emerge as a result of cases being decided. Kelsen’s pure legal theory does not represent the realities of real-world legal systems. Kelsen’s Pure Theory of Law aimed to purge law of all impure or foreign aspects, leaving material that is purely legal. From a legal standpoint, the law is a standard, not an actuality.
According to Kelsen, a “pure theory of law” is one that is entirely concerned with the part of knowledge that deals with law, including everything that does not technically belong to the subject matter of law. According to Kelsen, a theory of law must deal with the law as it is written, not as it should be. The philosophy of law, according to Kelsen, should be consistent. It ought to be appropriate at all times and in all locations. Kelsen’s idea has a wide range of ramifications. State, sovereignty, private and public law, legal personality, right and obligation, and international law are all covered.
Main principles under Pure Theory of Law
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 state. 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 proposes that the law be described as a Depsycholised command. 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.
Kelsen’s pure theory of law features a pyramidal hierarchy based on the grundnorm as the foundational norm. Grundnorm is a German term that means “fundamental norm.” He defines it as “the assumed ultimate rule by which the norms of this order are constituted and annulled, and their validity is received or lost.” The grundnorm establishes the content and verifies additional norms that are derived from it. But whence it gets its legitimacy was a question Kelsen refused to address, claiming it to be a metaphysical one. Kelsen suggested Grundnorm is a work of fiction and not a hypothesis.
According to Kelsen, unlike some of the other norms, the basic norm cannot be explained by referring to certain other or more validating laws. Instead, it may draw its legitimacy from the fact that it has been recognised, acknowledged, and accepted by a significant number of people inside the political unit. As a result, the law cannot be separated from the state’s organised structure and authority. Because this structure is normative, the concept of sanctions, which plays a rather unique role in Austinian doctrine as the element that makes law functional, depends on other forces such as prosecutors, officials, and judges to undertake their aspects of the normative structure before sanctions are activated and inflicted.
The Grundnorm is the beginning point for a legal system, and it is from this point that a legal system grows more complex and specialised as it evolves. This is a fluid situation. The grundnorm, which is self-contained, is at the summit of the pyramid. In a hierarchical structure, subordinate standards are governed by norms that are superior to them. The system of norms progresses from downwards to upwards and finally closes at grundnorm.
Hierarchy of Norms
A legal order, according to Kelsen, is made up of norms arranged in a hierarchical sequence, with one norm positioned above another and each norm getting its validity from the norm above it. The legal order is symbolised by the hierarchy, which takes the shape of a pyramid. 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.
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:
- Every two norms that derive their validity from the same fundamental standard are part of the same legal system.
- 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.
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.
Pure Theory of Law and its incorporation 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. Given this background, the Grundnorm in India should be found in the “Basic Structure”. The “basic structure” of the Indian Constitution can be considered the rule of recognition or grundnorm, which is really the ultimate basis of a legal system since the legislation in the Constitution acquires legitimacy from the basic structure’s defined norms. The superiority of the Constitution, India as a sovereign, socialist, secular, democratic, republic as in the Preamble and a welfare state, the federal character of the Constitution, the unity and integrity of the country, separation of powers between the legislature, the executive, and the judiciary, and Part III of the Indian Constitution i.e. Fundamental Rights are some of the major features of the basic structure.
The notion of basic structure was highlighted in the case of Kesavananda Bharati v. the State of Kerala 1973. The term ‘basic structure’ refers to the area of the Constitution in which the parliament has no authority to make changes. It is the foundation of the ultimate recognition rule. This case supported the argument that any rule or norm validating authority is the basic structure. In Indira Gandhi v. Raj Narain (1975), the Supreme Court threw down clause 4 of Article 329-A, which was introduced by the 39th Amendment, on the grounds that it was outside the amending authority of the legislature since it was not in parlance with the Constitution’s “basic structure.” Furthermore, the Hon’ble Court decided in Minerva Mill & Ors. v. Union of India (1980) that the Constitution’s “Basic Structure” include the limited ability of Parliament to modify the Constitution, as well as maintaining harmony between Fundamental Rights and Directive Principles. Furthermore, amendments cannot alter the Constitution’s “Basic Structure.” As a result, the legal system of India closely resembles the framework of the legal system proposed by Kelsen in his “Pure Theory of Law.”
Kelsen’s criticism of Natural Law
Kelsen’s explanation of normativity is intertwined with his criticism of natural law theories, of which he feels his is the only viable alternative. According to Kelsen, there is no explicit idea of legal validity in natural law. Moral validity is the only idea of validity. Natural law theories, according to Kelsen, are conceptually confused: one is secular, while the other is religious. Natural Law is logically binding and self-evident, according to secular conceptions. According to religious views, these are divine instructions that must be obeyed by humans. The fundamental principle of the secular theory is that nature must be respected, whereas the fundamental principle of the religious theory is that God must be respected.
Another critique levelled towards Natural Law by Kelsen is that its theories are unscientific, and hence cannot be objectively proven. Kelsen’s idea aims to isolate what makes a law legal without having to consider morality. Kelsen establishes his theory by distinguishing between the “prescriptive” and “descriptive” elements of positive law. Kelsen dives deep into this idea in search of a “prescriptive” component, unlike Bentham and Austin, who tried to define how a legal system functions.
Kelsen’s views on International Law
International law, according to Kelsen, is a component of the legal system as a whole. As a single ultimate legal system, international law has been recognised. As a result, all national norms should be viewed as subservient to international legal order, the validity of which is defined by an international law basic norm. It is sufficient for international law to be presupposed by the basic rule of power. Grundnorm, it doesn’t need to exist. Kelsen was able to understand that the state is not an isolated entity and that it might have greater political allegiance by rejecting sovereignty. Kelsen’s principal goal in developing this theory was to build a generally accepted theory that could be applied to all legal systems. According to Kelsen, a legal standard should be recognised universally. It should serve as a benchmark for all legal systems. In terms of making his norm applicable to all legal systems, Kelsen dismisses the pluralistic approach and embraces a monist viewpoint.
Implications of Pure Theory of Law
No difference between Law and the State
Kelsen rejects the sovereign’s existence as a distinct entity. He also disputes the existence of the state as a separate entity from the law. In its ideal form, the state would be neither more nor lesser than the law, an object of normative juristic knowledge. A system of normative connections is referred to as a law. All legal personality is created artificially and derives its legitimacy from a higher standard. According to Kelsen, the idea of a person is nothing more than a phase in the concretization process. The most important aspect of Kelsen’s philosophy is that the state is regarded as a “system of human conduct and a compulsive order.” Kelsen further argued that because legislative, executive, and judicial systems all create norms, there is no distinction between them. For Kelsen, the distinction between procedural and substantive law is a matter of degree, with the procedure taking precedence. The state is, in actuality, a mechanism that regulates social behaviour in a normative order. However, only a judicial system can uncover such a scheme. In reality, law and state are the same things, and the distinction arises because we study them from two different perspectives.
No difference between public and private law
The contrast between public and private law is another important characteristic of the hierarchical organisation of law. According to Kelsen, because every law gets its force from the same Grundnorm, there is no distinction between public and private law. They cannot be distinguished on the basis that they safeguard various types of interests. In the public interest, private interests are preserved. He identifies this divergence as the result of a political philosophy that aims to “elevate public law and justice authoritarianism.”
No difference between Natural and legal personalities
Kelsen does not distinguish between natural and legal beings. There is no distinction between physical and legal beings. In law, he defines ‘personality’ as an individual who is able to bear rights and obligations. All legal personalities are fictitious and derive their validity from superior norms.
No Individual rights
Individual rights, according to Kelsen, do not exist in law. The ‘essence of law’ is legal obligations. Law is always a necessary system in a state. He believes that the notion of right is not fundamental to a legal system. A legal right is just a responsibility as regarded by the person who has the authority to demand that it should be fulfilled.
Criticisms of Pure Theory of Law
According to Australian lawyer Julius Stone, because the fundamental norm is evidently the most impure, the succeeding processes’ purity must imitate the lower norm’s originating impurity. Some also criticise the pure theory for separating natural law from law and excluding it.
Sir Lauterpacht, a former member of the United Nations’ International Law Commission and a judge of the International Court of Justice, believes that Kelsen’s theory of natural law allows for the precedence of international law above state law. According to American jurist Allen, sources of law such as custom, legislation, and precedent are co-ordinate and do not allow for an organisation in Kelsen’s hierarchical structure.
Friedmann’s objection is that Kelsen’s pure science of law is insufficient in terms of legal theory. Law is now overlapping areas that were formerly assigned to other social disciplines such as Economics, Psychology, and Sociology. Critics also argue that a single theory cannot rule over all of the world’s legal systems. Because each legal system has its unique set of laws and norms, the pure theory cannot be applied to all legal systems. Another issue is that an abstract man-made theory cannot determine the legal ramifications of a sudden change. It cannot contend with changing conditions and scenarios posed by the legislation because of its limited reach.
In terms of effectiveness, there is no such criterion by which minimal effectiveness can be determined. The notion is not viable in revolutionary conditions, according to critics. There is no criterion by which the minimal effectiveness of a legal system can be judged, and the efficacy of a legal system cannot be quantified by a theory. It left out the social issues of morality and fairness, both of which have a role in efficacy.
Kelsen gave the legal theory a new dimension by forcing us to consider the distinction, as well as the relationship, between fact and norm, between legislation and its normative impact. Kelsen proposed an internally consistent model of the judicial process that, in some ways, mirrors attorneys’ and legislators’ intuitive reasoning. It is standard legal logic to trace a law’s legality back to the constitution. The notion that valid laws constitute an internally coherent system of laws is also flawed. Unlike his predecessors, Kelsen’s approach recognised the laws of primitive communities as well as the international community as law. Kelsen’s theories are frequently criticised for their ideas and internal coherence. But, he has written the most enlightening account of the legal process of the century. Despite the fact that none of his special doctrines have received universal approval, some have made their way into general legal theory. His half-truths and obvious fallacies shaped the evolution of jurisprudential thought as well.
Critics may doubt his theory’s ability to describe legal systems as they currently exist. Some types of laws are difficult to account for using Kelsen’s concept of law as a standard with a punishment attached. Procedural and evidential laws, laws establishing organisations, laws awarding freedoms and rights, and laws cancelling other laws all fit into the pure theory uneasily. At this point in history, his arguments for the logical coherence of international and national legal regimes are unconvincing. Kelsen’s ideas of law have undeniably improved the subject of jurisprudence, despite being complicated and imprecise in several areas and receiving numerous critiques.
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