Questions regarding Pure Theory of Law
Explain the statement, “law as a norm of action” in the light of Kelson’s pure theory of law ?
Explain the Kelson’s pure theory of law with reference to illustrations and criticism ?
Explain Kelson’s pure theory of law ?
Answers
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Meaning of Pure Theory of Law
The philosophy of Hans Kelson in which he contends that a legal system must be "pure"----that is, self-supporting and not dependent on extralegal values. Kelson's pure theory of Law, set out in such works as general theory of law and the state (1945) and the pure theory of law (1934), maintains that laws are norms handed down by the state. Laws are not defined in terms of history, ethics, sociology' or other external factors. Rather a legal system is an interconnected system of norms, in which coercive techniques are used to secure compliance. The validity of each law, or legal norm, is traced to another legal norm. Ultimately, all laws must find their validity in the society's basic norm (Grundnorm), which may be as simple as the concept that the constitution was validly enacted.
Definitions of Pure Theory of Law
According to kelsen, theory of law should be uniform. It should be applicable to all times and in all places. Kelsen advocated general jurisprudence. He arrived at generalizations which hold good over a very wide area.
Kelsen writes that a theory of law must be free from ethics, politics, sociology, history, etc. In other words, it must be pure. If a theory is to be general, shorn of all variable factors. It is true that kelsen did not deny the value of ethics, politics, history, sociology etc. But his view was that a theory of law must keep clear of those considerations.
Essential of Kelsen’s theory
Reduce Chaos and multiplicity to unity: - The aim of this theory of law is to reduce chaos and multiplicity to unity.
Legal theory as a science of what law is, not what ought to be:-Legal theory is in connection with what law is and not what law ought to be.
Law as normative science: - Law under this theory is considered as normative science.
Effectiveness of not out of scope:-Legal theory of law is not concerned with legal norms effectiveness.
Formal Theory: - This theory of law is formal.
Relation of legal Theory:-The relation of legal theory to a particular system of positive law is that of possible to actual law.
Municipal and International law:-No difference between municipal and international law.
Emphasis on separation:-Kelson emphasis on separation of law from politics, sociology, metaphysics and all other extra-legal discipline.
Law science as a system of knowledge:-He defines law ''science'' as a system of knowledge or a totality of cognitions systematically arranged according to logical principles.
Theory of interpretation:-This theory of pure science is also known as ''Theory of Interpretation'' because it was a reaction against cruel ideology which was corrupting the legal theory and the jurisprudence of totalitarian state.
Concept of Norms:-Basically, the theory of Kelson is about the concept of norms. Norm is a rule forbidding a certain behavior.
Theory of positive law:-Pure theory is a theory of positive law.
Implications of pure theory of law :-
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 behavior of people living in it, in a normative order.
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.
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.
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.
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 organization 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.
Procedural and Substantive law
The distinction between procedural law and substantive law is relative and procedural law is more significant.
Separation of powers
Kelson did not believe in the separation of powers and argued that all the three legislature, executive and judiciary are essential “norms creating” agencies.
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.
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 recognize 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.
Normative Science
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). 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.
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. 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 favor of general jurisprudence.
The Basic Norm (Grund-norm)
Kelson distinguished between legal science and natural science on the basis of “oughts’”. According to him, legal science deals with what ought to have happened. For instance, in case of a murder, legal science would always speak of punishment that must be given to the murder. It would always speak of what should be done according to the law. He further goes on to say that in every legal system there exists a hierarchy of such “oughts” which emerges from a single “ought” which known as a grundnorm is same in all the legal system. The concept, in general, is present in all the legal systems. However its contents may differ. The Grundnorm is the backbone of the legal system.
Merits of the Pure Theory of Law
- Kelson recognized International Law as a law
- Pure theory of law is best for peaceful change
- It makes the most refined development of analytical positivism
- Kelson's concept of legal system is clear original and striking
- Kelson has explained that no law can prevail country to grundnorm or constitution
- Kelson's Pure Theory of Law is considered to be the most outstanding theory of law
Criticism against Kelsen’s theory:-
Grundnorm is vague and confusing
The concept of Grundnorm given by Kelsen was greatly criticized 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 criticized this point as they were saying that the source of law is custom and nothing else.
Purity of norm cannot be maintained
Jurist criticized by saying that for applying the test of minimum effectiveness one has to look into political and social facts and this may cause adulteration in the pure theory of law.
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.
Practical No practical significance of this theory.
Criticism
Lord Lloyd has applauded the fact that Kelsen’s pure theory avoids some of the perplexities of Austin’s analytical positivism. However, he expresses concern over the uncertainty of the basic norm. It is difficult for the idea of basic norm to survive in the age of scientific behaviorism. Prof. Laski has stated, “Granted its postulates, I believe the pure theory to be unanswerable, but….its substance is an exercise in logic not in life.”
Contributions of Kelson Pure theory of Law
First Contribution
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 separation of law from each of these, begun by john Austin in 1832 and carried on by a succession of English writers, has been improved and clarified in some important respects by kelson's theory.
Second Contribution
The second contribution of kelson's theory is that it provides a conception of law which includes the case law of judicial and administrative tribunals as well as the legislative norms of legislatures, administrative bodies and even courts ( as to judicial procedure).
Third contribution
A third aspect of kelson's theory is that it presents us with a dynamic legal order rather than 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.
Fourth contribution
As a fourth contribution kelson's theory of the legal order serves to answer the question, ''do courts make law? ‘An affirmative answer has been given to this question, since Bentham's time, quite generally by educated men outside the courtroom. Holmes even brought it into the official reports, but confined it to'' molecular motion''. Kelson theory states that every act of law-applying is also an act of law creating.
Fifth contribution
Finally, Kelson's conception of the legal order serves to exemplify and in part to resolve that ancient jurisprudential paradox; the law must be stable, and yet it cannot stand still. The stability of law does not consist merely in the rules and principles which prescribe lay conduct and are guides to judicial or administrative decisions, but also in the powers of officials to change the law and in the limitations on those powers. to say that every official act of law-applying and law-creating is an ''act of the will,'', as kelson does, is not to say that it is unpredictable, tyrannical, capricious; it is, on the contrary, subject to legal evaluation by reference to the norms, both of power and guidance, which limit the official. In providing an orderly and rational account of the process of legal change in politically mature societies Kelson has made a contribution toward relieving the tension between the'' being'' and the ''becoming'' of law.
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 consistency between various parts, making it a logical system.
