INTRODUCTION
Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881- 1973). Kelsen began his long career as a legal theorist at the beginning of the 20th century. Kelsen suggested a ‘pure’ theory of law that would avoid reductionism of any kind. The pure theory of law of Hans Kelsen represents a development in two different directions.
DEFINITION OF PURE THEORY OF LAW
According To Black’s Law Dictionary
Hans Kelsen’s philosophy is that a legal system must be “pure”, that is self-supporting and not dependent on extralegal values. So, a theory of law should be uniform. It should apply to all times and all places. Kelsen writes that a theory of law must be free from ethics, politics, sociology, history, etc.
MAIN EXPONENTS
Hans Kelsen was the leading exponent of the Pure Theory of law.
ELEMENTS OF PURE THEORY OF LAW
Kelsen gave his views on this theory about the following: the elements of the Pure Theory of Law.
- State
- Sovereignty
- Public and private law
- Public and private rights
- International law, personal and juristic law
AIM OF THEORY OF LAW
- A theory of law aims to reduce and ne multiplicity of utility.
- Legal theory is a science and not a volition.
- It is the knowledge of what law is and not of what the law ought to be.
- Law is a normative and not a natural science. As a theory of norms, legal theory is not concerned with the effectiveness of legal standards.
- A theory of law is formal, an idea of ordering and changing contents in a specific way.
- The relation of legal theory to a particular system of positive law is possible to actual law.
- Kelsen distinguished between propositions of law and those of science. Recommendations of science deal with what necessarily happens, while proposals of law deal with what ought to happen.
CHARACTERISTICS OF PURE THEORY OF LAW
The following are the characteristics of the pure theory of law.
1. NO DISTINCTION b/w PUBLIC AND PRIVATE LAW
There is no distinction between public and private law. That is because all law emanates from the same Grundnorm. Both public and private laws are part and parcel of a single process of concretization.
2. BASIS OF THE LEGAL SYSTEM
The legal system is an ordering of human behaviour. The idea of duty is the essence of the law. That is evident in the “ought of every norm. The concept of a right is not essential. It is said to occur “if the putting into effect of the consequence of the disregard of legal rules is made dependent upon the will of the person who has an interest in the sanction of the law being applied.
3. DISTINCTION b/w LAW-MAKING AND LEGISLATION
Once the hierarchic character of law is grasped, the distinction between law-making and legislation is on the one hand.
4. SUBSTANTIVE AND PROCEDURAL LAW
For Kelsen, the distinction between substantive and procedural law is relative, with procedure assuming greater significance. The organ and the process of concretization constitute the legal system.
5. QUESTIONS OF LAW AND FACT
The distinction between questions of law and fact becomes relative.
6. NORMATIVE STRUCTURE
The legal order is a normative structure that operates to culminate in the application of sanctions for certain forms of human behaviour. The idea of duty is of its essence. Kelsen made no specific allowance for powers. Liberty, in his view, “is an extra-legal phenomenon
7. BASIC GRUNDNORM
Grandnorm is the source of all laws. Grandnorm is in the form of a written constitution. Any such body contains rules or any legal system in a country.
8. NO DIFFERENCE b/w LAW AND STATE
Kelsen says there is no difference between law and State because they get power from the same grand norm. The law comes from the great example, and the State comes from the great example.
9. SOVEREIGN IS NOT A SEPARATE BODY
Austin says a sovereign is a politically superior person who controls politically inferior persons. But Kelsen that the power of sovereign lies in the people. So, the Sovereign is not separate and selected from the country’s people.
CRITICISM FACED BY THE PURE THEORY
The criticism that is faced by the pure theory of law is as follows;
1. It avoided the perplexities
Kelsen’s analysis of the formal structure of law as a hierarchical system of norms and his emphasis on the dynamic character of this process is illuminating. It avoids some of the perplexities of the Austinian system.
2. Legal system
A legal system is not an abstract collection of bloodless categories but a living fabric in a constant state of movement. Kelsen recognizes that to call the function of a judge political does not deprive it of its legal quality.
3. Analyzing
There is a great danger that if we take the watch to pieces and analyze each part separately, we shall never attain the overall picture, which shows how it works.
4. It is purely formal
It is strictly traditional, is a juristic value judgment, and has a hypothetical character. It forms the keystone of the whole legal arch. It is at the top of the pyramid of norms for each legal order.
5. Quality of purity
The quality of purity claimed by Kelsen for all norms dependent on the essential criteria has been the subject of attack for an extended period.
6. Grave weakness
A legal order is not merely the total of laws. Still, it includes doctrines, principles, and standards, all of which are accepted as “legal” and operate by influencing rules’ application. Their validity is not traceable to the grand norm of the order.
7. Grandnorm is a vague concept
The concept of the grand norm is not clear. It cannot be applied where there is no written constitution. The base of the great norm in the form of positive poems or the rules based only on legal order is unclear. The rules are not linked with morals or ethics. Customs and religion are not the norms. But we cannot ignore the role of these norms in the development of law.
8. International Law is a weak law
Kelsen advocated the supremacy of international law. But even up to now, we see that there is no force behind international law.
9. No difference between State and law
Various writers also criticize this point. Law is a separate thing from the State. The State is a body is a law in which law is a rule that regulates the State.
CONCLUSION
A significant contribution of Kelsen was that he demonstrated the unity of the legal system and the mechanics of its operation, which was a valuable contribution. He points out that Kelsen has been hailed as having provided the outstanding theory of the twentieth century from a positivist point of view. Kelsen was also driven to the conclusion that laws are ultimately permissions to apply sanctions and “ought” includes “may” and “can”.
FREQUENTLY ASKED QUESTIONS
Explain Kelsen’s Pure Theory of Law along with its illustration and criticism.
(2019-A Special Exam, 2017-S)
Explain the statement “Law as the norm of action” in the light of Kelsen’s Pure Theory of Law.
(2018-S, 2017-A)
Explain the Kelsen’s Pure Theory of Law.
(2018-A)
Define the term “Pure Theory of Law”. What are the Main Characteristics/implications of the theory?
REFERENCES
- Jurisprudence
- N-Series by M.A. Chaudhary
- Black’s Law Dictionary
