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Kelsen's Pure Theory of Law

Introduction
The concept of the "Pure Theory of Law" was developed by Hans Kelsen, an Austrian jurist, in the early 1900s. This theory is also referred to as the "Pure Theory of Positive Law" or "Kelsenian Jurisprudence." Its main goal is to provide a systematic approach to understanding law that is independent of moral and political considerations.

The theory e´┐Żncompasses several significant ideas:
  • Hierarchy of Norms: Kelsen's key concept is that laws follow a hierarchical structure, resembling a pyramid. At the apex lies the fundamental rule, known as the Grundnorm, which provides validity to all subordinate laws below it.
     
  • Norms and Rules: Norms and Rules guide our behaviour by informing us of what is expected or prohibited. According to Kelsen, laws provide directives that dictate our actions and set boundaries for our conduct.
     
  • Legal Validity: The author distinguishes between the existing law and the ideal law. According to their argument, a law is considered valid if it conforms to a higher law.
     
  • Separation of Law and Morality: Kelsey argues for the separation of law and morality, suggesting that laws should be considered independently from moral judgments. His position emphasizes maintaining a distinction between legal principles and ethical considerations.
     
  • Legal Science: Approaching the study of law in a manner similar to that of natural sciences is advocated by this individual. This entails embracing an objective and systematic approach to the subject matter.
     
  • Legal Positivism: Kelsen's theory, known as "legal positivism," specifically examines laws created by those in positions of authority and does not take into account natural law or moral considerations.

According to Kelsen, Law is only a normative science and not a natural science. Law is the systematic character of a legal system consisting of rules (norms). All these rules (norms) arise from the same basic rule/rules called grundnorm.

Normative science offers instructions on optimal behaviours and decision-making processes for individuals, establishments, and communities to reach favourable results; these are often rooted in moral ideals or philosophical tenets.

Grundnorm
The term "Grundnorm" is a legal concept linked to the ideas of the German philosopher Hans Kelsen. In simple terms, it's like the most important rule in a legal system. Kelsen believed it's the starting point for all other rules. It's not based on any other rule and can't be questioned within that legal system. Instead, it's accepted as the foundation for all the laws. Think of it as the main building block of a legal system. Kelsen said that for all the other laws to make sense and be valid, people must recognize and follow this foundational rule. Some legal scholars may not agree with this idea, and they have their own ways of explaining how legal systems work.

To put it simply, the Grundnorm is like the "ultimate rule" or "ultimate legal principle" that would exist at the top of a hypothetical hierarchy of norms in a legal system. However, it's important to emphasize that the Grundnorm is not a real or specific law in any legal system; rather, it's a theoretical construct used by legal philosophers to illustrate how legal systems are structured.

Examples of Grundnorm
In practical terms, legal systems have their own fundamental or constitutional laws that serve as foundational norms. For example:

The English legal system is based on parliamentary legislations and judicial precedents. Here the grundnorm is parliamentary legislations and judicial precedents.

Similarly, if there is a written constitution, then the grund norm is that the constitution must be obeyed. If there is no written constitution, then the social behaviour is the grundnorm.

In India, the Indian Constitution is the grund norm.

In the United States, the U.S. Constitution is often considered the fundamental norm or Grundnorm of the legal system. It is the highest law in the land and serves as the foundation upon which all other laws are based.

In Germany, the Grundgesetz functions as the foundational norm of the legal system. It establishes the principles and fundamental rights upon which the entire legal order is built.

At the international level, the Universal Declaration of Human Rights can be seen as a foundational norm that influences the development of human rights laws in various countries.

Advantages of Kelsen's Pure Theory of Law:
  • Kelsen's pure law is applicable to all legal systems.
  • It is an improvement of Austin's theory.
  • The presence of Constitutional Law could be explained by Kelsen's Theory.
  • According to Kelsen, law need not only be Command.
  • According tom Kelsen, there is no distinction between private law and public law.
  • As per Kelsen's theory, international law is a law.
  • As per Kelsen's theory, customs, legislations, and precedents are all sources of law.
  • As per Kelsen's theory, Law and State are similar; State is only the outcome of legal order. So, State and Law are the same.

Criticisms of Kelsen's Pure Theory of Law
Some individuals have expressed their dislike for this theory, arguing that it appears to be detached from moral and political considerations. They assert that it oversimplifies the complexities of law and fails to acknowledge how society and politics influence its functioning.

Friedmann criticises Kelsen's theory as inadequate as it does not explain the effect of economics, psychology and sociology on law.

Allen criticises Kelsen's theory as custom, legislation and precedents are different, co-ordinate and parallel sources and not in the hierarchy as suggested by Kelsen.

Lauterpacht criticises Kelsen's theory, as a back door entry of Natural Law through the medium of grundnorm.

Hans Kelsen's Pure Theory of Law, although influential, has faced several criticisms. Some argue that it's too abstract and disconnected from the real world, ignoring the social and historical context in which laws operate. Critics also say it lacks consideration for substantive justice, focusing solely on the structure of legal norms and not the moral content. Kelsen's Grundnorm, a foundational concept, is criticized for its hypothetical nature and lack of practical evidence.

Additionally, some believe that Kelsen's theory doesn't adequately address enforcement, which is essential for law's effectiveness in practice. It minimizes the role of judges in interpreting and applying the law, leading to concerns about their discretion. Kelsen's rejection of natural law theory, which incorporates moral principles into legal theory, has also been met with criticism. Lastly, there are concerns that Kelsen's theory is rooted in Western legal traditions and may not be suitable for understanding non-Western legal systems, showing a potential cultural and historical bias. While Kelsen's theory has its merits, these criticisms highlight areas where it falls short in providing a comprehensive understanding of law.

Why is it called 'Pure Theory of Law'?
Hans Kelsen's theory of law is often called the "pure theory of law" because it aims to study law in a clean and focused way, without mixing in things like morals or politics. Kelsen wanted to create a theory that's neutral and scientific, like math or science. He believed that by keeping law separate from other influences, he could make his theory more precise and rigorous. So, "pure" here means Kelsen's commitment to analyzing law on its own, without adding in outside factors. This purity is a big part of what makes his legal approach unique.

Conclusion
In short, the Pure Theory of Law by Hans Kelsen is a way to understand law systematically without mixing in moral or political ideas. It's based on the idea of a hierarchy of norms, where each law follows a higher one. But it's also controversial because it leaves out morals and politics. The main weakness of Kelsen's theory is the Grundnorm which is based on unproved hypothesis.

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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