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AMITY UNIVERSITY LUCKNOW AMITY LAW SCHOOL

2017-2022

JURISPRUDENCE (Hans Kelsen’s ‘The Pure Theory of Law)

Submitted To: Ms. Ayushi Khuswaha

Submitted By: Sonika Pal B.Com LL.B (Hons) 7th Semester A8121617011

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ACKNOWLEDGEMENT The project is the fruit of meticulous research therefore; it is apt to acknowledge the contributions of those who aided in the finality of the research. First and foremost, appreciation is extended to Ms. Ayushi Khushwaha, Professor for Jurisprudence at Amity University, Lucknow for providing an opportunity to work upon the subject. I would take the opportunity to thank the staff and the Library of Amity University, Lucknow for their constant help and support. -

Sonika Pal

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INTRODUCTION The Pure Theory of Law is a general theory of law that conforms to the requirements of legal positivism. As such, it aims to understand the law as it is, not as it ought to be, and its method is structural analysis. 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 make use of when trying to understand and describe the law in a scientific manner. We might say that the Pure Theory aims to lay down the theoretical basis for other legal disciplines, such as contract law, constitutional law, legal history, comparative law, etc. The idea of a pure theory of Law was propounded by the renowned jurist and the philosopher Hans Kelsen. The traditional legal philosophies at that time were hopelessly contaminated with the thoughts of nature law or divine law, morals and political ideologies on one hand and to reduce the law to social and natural science on other hand. Kelsen found this extremely flawed and suggested a ‘Pure Theory of Law’ which would avoid reductionism of any kind. The study of law which Kelsen propounded ‘characterizes itself as a pure theory of law because it aims at knowledge focused on the law alone’ and this purity serves as the basic methodological principle. Kelsen proposed the analysis of a legal system simply as a structure of norms, in other words of “ought”- propositions which could be valid and illuminating, regardless of the moral quality of those norms and indeed independent of all extraneous ethical social, economic or political values. Kelsen’s theory had the result of effacing the distinction between public and private law and between law itself and the state. The central concept of Pure Theory of Law is the notion of a ‘basic norm’ which he called the ‘Grundnorm’ - a hypothetical norm, presupposed by the jurist, from which in a hierarchy all ‘lower norms’ in a legal system are understood to derive their authority or ‘bindingness’

HISTORY Hans Kelsen was born in Prague on the 11th October 1881. Kelsen studied law in Vienna taking his doctorate in 1906 and later acted as a professor at the University of Vienna. Because of his family's Jewish origins, Kelsen was forced to disrupt his career several times and move from country to country, but this enabled him to interact and associate with legal scholars from different parts of the world. In 1919, Kelsen was asked to write the constitution of the Austrian Republic. The constitution was adopted in 1920 by the government. Kelsen also served on the Austrian Constitutional Court but due to political attacks he immigrated to Germany where he taught international law at the University of Cologne. Later he moved from Germany to Switzerland and at the beginning of World War II, Kelsen immigrated to the United States, where he taught until 1952, and served as legal adviser to the United Nations War Crimes Commission. Kelsen died on 19th April 1973. His work and writings were greatly influenced by the German philosopher Immanuel Kant and his background in the civil law system of continental Europe. Considered as one of the

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preeminent jurists of the twentieth century Kelsen wrote almost four hundred works on legal philosophy some of which have been translated into twenty-four languages. Kelsen’s writings include General Theory of Law and State and The Law of the United Nations. Similar to other positivists Kelsen rejected natural law theory and came up with his own theory. His legal theory, A very strict and scientific type of legal positivism is based on the idea of a hypothetical norm on which all subsequent levels of a legal system is based. This theory traced the legitimacy of legal legislation back to a fundamental "ground rule" or Grundnorm in German. Kelsen is known for his most rigorous development in positive law. His theory of pure law is based on logic. It has normative nature and is devoid of the influence of other worldly knowledge especially of the social sciences. The theories of Hans Kelsen still remain an essential point of reference in the world of legal thought. Kelsen’s influence is still felt in a number of areas, such as the general theory of law, constitutional law, international law, philosophy of law, issues of justice, sociology and politics.

THE PURE THEORY OF LAW A theory of law should be “pure” or independent of the influences of extra-legal values of any kind. Thus Hans Kelsen believed and propagated a theory that in its purity was divorced from all extra-legal elements such as sociology, philosophy, ideology, psychology, politics, ethics, etc. Kelsen was quick to decipher that law belonged, not to the natural sciences, but rather to the human sciences. In his book ‘Pure Theory of Law’ 1934 Kelsen writes “ It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely, wrapped up in legal-political argumentation, to the level of a genuine science, a science of mind.” According to Kelsen the pure theory of law is called likewise because it only describes the law and attempts to eliminate from the object of this description everything that is strictly not law: Its aim is to free the science of law from alien elements. Kelsen claimed that his theory is pure based on two factors. First it distinguishes law from fact. Second, it distinguishes law from morals. Kelsen’s views are contradictory to the doctrine of precedents that legal ideas are found in the course of deciding cases. Kelsen’s pure theory of law does not reflect circumstances of actual legal systems. By the Pure Theory of law, Kelsen intended to remove all the impure or alien elements from law and to leave a material that is purely legal. Thus natural law, moral, religious, social, and other that are not strictly law had to be eliminated. Kelsen classified all these impure or extraneous elements that are not strictly law as The Alien Elements. From a legal point of view, law is norm, not fact. According to Kelsen ‘pure theory of law’ means that it is concerned solely with that part of knowledge which deals with law, including from such knowledge everything, which does not

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strictly belong to the subject matter of law. Kelsen stated that a theory of law must deal with law as it is actually laid down and not as it ought to be. According to Kelsen, a theory of law should be uniform. It should be applicable to all times and in all places. The implications of Kelsen’s theory are wide and many. It covers the concepts of state, sovereignty, private and public law, legal personality, right & duty and international law

KELSEN’S CRITICISM OF NATURAL LAW Kelsen’s explanation of normativity is closely connected to his critique of natural law theories, to which he believes his theory is the only alternative. Kelsen points out that according to natural law; there is no specific notion of legal validity. The only concept of validity is moral validity. Kelsen claims that Natural law theories are conceptually confused: one is secular and the other is religious. The secular theories regard natural law as rationally binding and self-evident. The religious theories regard them as commands of God binding on human. The basic norm of secular theory is that nature be obeyed, whereas the basic norm of religious theory is that God be obeyed. Another criticism thrown by Kelsen at Natural law is that Natural law theories are unscientific and therefore they cannot be objectively confirmed. Kelsen’s theory seeks to isolate that which makes law valid without reference to morality.

LAW OF NORMATIVE SCIENCE Law norms are ‘ought norms’. According to Kelsen, law is a normative science. But law norms have a distinctive feature. They may be distinguished from science norms on the ground that norms of science are norms of being of is’, while the law norms are ‘ought’ norms. Law does not attempt to describe what actually occurs but only prescribe certain rules. It says, if one breaks the laws, then he ought to be punished.’ These legal ‘ought’ norms differ from morality norms in this respect that the former are backed by physical compulsions which the latter lack, but Kelsen does not admit the command theory of Austin as it introduces a psychological element into the definition of law which Kelsen avoids. According to Kelsen “Norm is the meaning of an act by which a certain behavior is commanded, permitted or authorized‟ . A norm may take the form of a rule or a specific command. Kelsen’s theory obliterates the distinction between rules and orders. A norm, according to Kelsen, need not supply a rule of conduct that can be known beforehand a necessary condition for achieving the rule of law. Kelsen saw law as saying what “ought‟ to happen. Norms say “if you do kill, you ought to be punished”. A norm is either valid or not valid. A norm’s validity is derived completely from its having been authorized by another legal norm of a higher rank in the Hierarchy of norms. According to Kelsen, a legal order is comprised of norms placed in a hierarchical manner, one norm placed above another norm and every norm deriving its validity from the norm above it. The hierarchy takes a pyramid shape and symbolizes the legal order. In this way there comes a final stage of highest norm which serve basis for all infertile norms, which is known as the basic norm or Grund Norm. The Grund norm is the basic point of the philosophy of

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Kelsen. The legality or validity of all the norms can be tested against the Grund norm. The validity of Grund norm can't be objectively tested. The Grund norm is the common source for the validity to the positive legal order or all norms that belong to the legal order. The Grund norm must be efficacious i.e., it must be obeyed by the people at large. Efficacy is the validity of the Grund norm. The Pure Theory conceives of law as a system of norms, where norms function as schemes of interpretation in light of which we can view human behavior and other natural events. Kelsen defined Norm as meaning of an ‘act of will’ by which Human behavior is ‘commanded’, ‘authorized’ and ‘permitted’. A norm is a regulation setting out how persons ought to behave. It is ‘ought’ because it describes what ought to be, given certain conditions. It is normative. It is prescriptive. It is binding.

GRUND NORM The Grund norm is the starting point in a legal system. From this base, a legal system broadens down in gradation becoming more and more detailed and specific as it progresses. Kelsen calls it ‘general concentrisation’ of ‘Grund norm’ or the ‘basic norm’ thus focusing the law to specific situations. Kelsen’s pure theory of law is based on pyramidal structure of hierarchy of norms which derive their validity from the basic norm which he termed as Grund norm. Thus, Grund norm as basic norm determines the content and gives validity to other norms derived from it. Kelsen has no answer to the question as to whereupon the basic norm derives its validity. The task of legal theory is only to clarify the relation between Grund norm and all other inferior norms and not to enter into other questions as goodness or badness of Grund norm. Thus, while all norms derive their validity from the basic norm, the validity of basic norm cannot be objectively tested, instead, it has got to be presumed or pre-supposed. Kelsen however considers Grund norm as a fiction rather than a hypothesis. Kelsen recognized the Grund norm need not to be the same in every legal order, but a Grund norm of same kind there will always be, whether in the form, e.g., of a written constitution or the will of a dictator or the preamble. There appears no reason why there need not to be one Grundnorm. For example, in England, the whole legal system is traceable to the propositions that the enactments of the Crown in Parliament and Judicial precedents ought to be treated as ‘law’ with immemorial custom as a possible third. This is not in contradiction of Kelsen’s theory of law. Kelsen has firmly said that a system of law cannot be grounded on two conflicting Grundnorm. In England, obviously, there is no conflict between the authority of the King in Parliament and of judicial precedents, as the former precedes the latter. For him the only task of legal theory is to clarify the relation between the fundamental and all lower norms, but not to say if this fundamental norm is good or bad.

VALIDITY AND EFFECTIVENESS OF NORMS

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To say that a legal norm is valid, Kelsen explains, is to say that it exists, and to say that it exists is to say that it ought to be obeyed or applied, that it has binding force. Kelsen maintains, in keeping with the separation theory that legal validity is conceptually independent of morality: ‘there is no kind of human behaviour that, because of its nature, could not be made into a legal duty corresponding to a legal right’. He also mentions in keeping with the is and ought distinction, that the validity of a given legal norm can only be explained by reference to the validity of another and higher legal norm. Thus a norm, A is legally valid if and only if it was created in accordance with another and higher legally valid norm B, which in turn is legally valid if, and only if, it was created in accordance with another and higher legally valid norm C, etc. According to the pure theory statements about the validity of legal norms presuppose effectiveness in two ways; a legal norm loses its validity if it has been ineffective for a long time, if it is a part of a system of norms which is, by and large effective. As for determining the validity of any particular norm, the citizen must think that it exists or that there is a power behind it that obligates those whose behavior it is meant to order. That a norm is effective then, while a condition of validity, is however not the basis of its validity. In that way the validity of each norm may be weighed in the scale of the basic norm. Thus, sanctions are what ought to apply after hurdling certain conditions. The law takes the form of a conditional order directing officials, not the citizen, on what to do given certain conditions. According to the Kelsen, the fact that A has committed murder is not of necessity visited by the sanction of death. Rather, depending on certain conditions imposed by law, A ought to be faced by the sanction of death. The allowance is for the performance of these officials and judges of the functions that this normative structure has imposed. While validity of law is determined by the traceability of the norm to the existing basic norm, efficacy relates to the effectiveness or enforceability of the norm. In other words, it asks the question whether the norm is obeyed, whether violations are prosecuted. If the answer is in the positive, then the norm is efficacious. Otherwise, it is not. Thus, the principle of legitimacy is restricted by the principle of effectiveness. Although inefficacy may not affect the validity of a norm in the short term, it may do so ultimately. For instance, when the total legal order or the basic norm loses its efficacy, the system of norms may lose its validity. In other words, they cease to be valid not only when they are constitutionally annulled but also when the total order ceases to be efficacious. Norms must be generally accepted. Validity therefore means authorization by higher law and a minimum of effectiveness. ‘The efficacy of the total legal order is a necessary condition for the validity of every single norm of the order.’ The validity of each norm in the system is dependent on a higher norm. 1. Constitution – provides that whatever Parliament enacts is law. 2. Parliament has enacted the act which appointed the judges. 3. Act appoints the judges. 4. Judge decides the person is guilty.

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5. The jailer turns the key. A legal norm, once broken, will attract a sanction.

SANCTIONS Law is a coercive order that relies upon sanction. It is the social technique which consists in bringing about the desired social conduct of people through the threat of a measure of coercion which is to be applied in case of contrary conduct. Kelsen use the sanction to indicate the coercive nature of law. Kelsen has rejected the view of Austin about sanction who regards it the command of Sovereign because it introduces a psychological element into a theory of law. That is why he prefers Grundnorm which provides sanction to law. Its authoritative nature makes any legal system authentic. This sanctioning power of the Grundnorm makes it applicable to all other laws. Kelsen’s analysis on the sanction view of law is that legal norms are stated in the form that, if the person does not comply with a certain prohibition, then the consequence is that the courts ought to inflict a penalty, whether criminal or civil. It follows that for Kelsen the content of legal norms is not primarily to impose duties on the subject to conform, but rather to lay down what judges or officials are expected to do in the event of a delict.

NO DIFFERENCE BETWEEN STATE AND LAW Kelsen empathetically denies the existence of sovereign as a personal entity. He denies also the existence of state as an entity distinct from law. State is neither more nor less than the law, an object of normative juristic knowledge in its ideal aspect. A law is a system of normative relations. All legal personality is artificial and deduces its validity from a superior norm. According to Kelsen, the concept of person is merely a step in the process of concretization and nothing else. The most significant feature of Kelsen‟ s doctrine is that, the state is viewed as a system of human behavior and an order of compulsion. Kelsen‟ s conception of law as a system of normative relations leads to the conclusion that there is no such thing as individual right in law. Legal duties are the “essence of law”. Law is always a system of ought to’s. The concept of right is not basically essential for a legal system. Kelsen, also advocated that there is no difference between legislative, executive and judicial processes as they are all norm creating agencies. For Kelsen the distinction between substantive and procedural law is relative, procedure assuming greater significance.

NO DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW: Another very significant feature that comes out of the hierarchal structure of law is distinction between public and private law. According to Kelsen, there is no difference between public and private law when all law derives its force from the same Grund norm. No distinction between them can be made on the ground that they protect interests of different nature. Private interests

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are protected in public interest. He traces a political ideology behind this distinction- a motive to elevate public law and justice authoritarianism’.

CRITICISM 1. Kelsen’s theory of law is said to be arid, unreal and removed from the complexities of...