Kelsen's Pure Theory of Law
The pure theory of law is a comprehensive legal theory that adheres to the
tenets of legal positivism. It uses structural analysis as a method and aims to
understand the law as it is, not as it ought to be. More specifically, it
provides us with a set of fundamental legal concepts—such as "legal system,"
"norm," "right," "duty," "sanction," and "imputation"—that we can use in our
efforts to understand and articulate the law in a way that is consistent with
science. One could argue that the purpose of pure theory is to develop the
theoretical frameworks of many legal fields, such as constitutional law,
contract law, legal history, comparative law, and so forth.
Prominent Austrian jurist and philosopher Hans Kelsen introduced the idea of the
Pure Theory of Law. Kelsen started his extensive career as a legal scholar at
the turn of the 20th century. Kelsen claimed that attempts to subordinate the
law to the scientific or social sciences and political ideology and moralizing
were the two things that terribly polluted traditional legal systems. He
demonstrated that both of these reductionist endeavors were seriously flawed.
Rather, Kelsen advocated for a "pure" legal philosophy that shied away from
reductionism.
According to Kelsen's reasoning, natural law does not require explanation when
it incorporates elements of politics, sociology, or other relevant
considerations. He believed that in order to comprehend pure or natural law, all
capacity for morality, sociology, or other factors should be eliminated. The
theory is therefore referred to as the Pure Theory of Law.
A short note on Hans Kelsen : the propounder of Pure Theory of Law
Born in Prague in 1881, Hans Kelsen taught law at Vienna University. From 1920
until 1930, he presided over cases in Austria's Supreme Constitutional Court as
a judge. After that, he moved to England before arriving in the US in 1940, when
he was hired as a law professor at many US universities. Last but not least, he
established his groundbreaking Pure Theory of Law in the Twentieth Century while
serving as an emeritus professor of political science at the University of
California. This theory garnered international notice. Numerous volumes, such as
the Austrian Constitution (1920), The Pure Theory of Law (1934) updated (1960),
Principle of International Law (1952), What is Justice (1957), and others, are
authored by Kelsen.
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 legal theory ought to be "pure," that is, devoid of any kind of extralegal
influences. Consequently, sociology, philosophy, ideology, psychology, politics,
ethics, and other extra-legal elements were all excluded from Hans Kelsen's
theory, which he supported and believed in. Kelsen rapidly came to the
conclusion that law is not a science; rather, it is a human science. According
to Kelsen, the pure theory of law gets its name from its exclusive description
of the law and effort to omit anything that isn't strictly legal from its
purview. Its aim is to purge legal science of extraneous elements.
Two factors, according to Kelsen, support the purity of his hypothesis. It makes
a distinction between law and fact, for instance. It also makes a distinction
between morality and the law. The theory of precedents, which maintains that
legal concepts develop as a result of cases decided, is in conflict with
Kelsen's beliefs.
The reality of actual legal systems are not reflected in Kelsen's pure legal
theory. With Kelsen's Pure Theory of Law, only elements that are purely legal
would remain once all impurities and external elements were eliminated. Legally
speaking, the law is a norm rather than a fact.
A "pure theory of law," in Kelsen's words, is one that ignores everything that
does not formally fall under the purview of law and is only focused on the area
of knowledge that deals with law.
Grundnorm
The pyramidal structure of Kelsen's pure theory of law is predicated on the
grundnorm, which serves as the fundamental norm. The German word "grundnorm"
translates to "fundamental norm." "The presumed ultimate rule by which the norms
of this order are constituted and annulled, and their validity is received or
lost," is how he describes it. Further norms that are derived from the grundnorm
are verified and their content established. However, Kelsen declined to answer
the question, stating that it was metaphysical, and did not address where it
obtains its legitimacy. Kelsen proposed that the Grundnorm is not a hypothesis,
but rather a work of fiction.
Unlike some of the other norms, according to Kelsen, the basic norm cannot be
clarified by making reference to one or more additional validating laws.
Alternatively, it might get its legitimacy from the fact that a sizable portion
of the political unit has recognized, accepted, and acknowledged it. Because of
this, it is impossible to divorce the law from the authority and organizational
framework of the state.
Since this structure is normative, before sanctions are activated and applied,
other forces like judges, prosecutors, and officials must complete their
portions of the normative structure. This is because the concept of sanctions,
which has a special place in Austinian doctrine as the component that gives law
its functionality, depends on them.
A legal system started with the Grundnorm and developed from there, becoming
increasingly specialized and sophisticated over time. This is a dynamic
circumstance. At the top of the pyramid lies the self-contained grundnorm.
Subordinate standards in a hierarchical organization are governed by norms above
them. The normative hierarchy advances from bottom to top before coming to an
end at the grundnorm.
Hierarchy of Norms
According to Kelsen, a legal system consists of norms stacked one above the
other in a hierarchical order, with each norm deriving its legitimacy from the
norm above it. The hierarchy, which resembles a pyramid, represents the legal
system. Consequently, the ultimate standard, referred to as the Grund Norm or
fundamental standard, arises and becomes the basis for all subsequent standards.
The core of Kelsen's philosophy is the Grund norm. Any norm's legality or
validity can be ascertained using the Grund norm. It is impossible to evaluate
the Grund norm's validity objectively.
Sanctions
Kelsen emphasizes the coercive nature of the law through punishments. Austin
interprets sanction as a directive from the Sovereign, but Kelsen rejects this
interpretation since it introduces a psychological component into a legal
system. Consequently, he supports the Grundnorm, which lends legitimacy to laws.
Each legal system gains legitimacy from its authoritative nature. The Grundnorm
is applicable to all other laws due to its sanctioning authority. According to
Kelsen's analysis of the sanctioned view of the law, legal norms are expressed
in terms of the requirement that the courts administer a penalty, either civil
or criminal, to those who disobey a particular ban.
Conclusion
By making us think about the dichotomy between fact and norm, as well as the
relationship between law and its normative influence, Kelsen provided legal
theory a new dimension. In some respects, Kelsen's internally consistent model
of the legal system reflects the instinctive thinking of legislators and
attorneys. Tracing a law's legitimacy all the way back to the constitution is
typical legal reasoning. It is likewise incorrect to believe that a body of
legal laws is an internally consistent body of law. In contrast to his
predecessors, Kelsen recognized as law both the world community and the laws of
primitive societies. The concepts and internal consistency of Kelsen's theories
are regularly criticized. However, he has penned the century's most insightful
description of the legal system.
Written By: Akanksha
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