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Kelsen's Pure Theory Explained

Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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649 views1 page

Kelsen's Pure Theory Explained

Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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Kelsen's Pure Theory of Law

Kelsen's Pure Theory of Law is an important theory of Law related to


Jurisprudence

Henry Kelsen (1881 - 1973) was a Professor of Law at the University of


Vienna.
He propounded the Theory of Law in his essay 'The Pure Theory of Law'
and contributed it to the Law Quarterly Review in 1934.
This theory is an improvement of Austin's Positivism Theory
This theory was further elaborated in 1945 in his 'General Theory of
Law and State'.

Postulates of Kelsen
Law is a norm of action

Kelsen regards Jurisprudence as a normative science and not a natural


science.
In natural sciences, laws are statements of the sequence of cause and
effect.
If A is, B is.
There can be no infraction of such a law, for a single infraction invalidates
the law.
Jurisprudence according to Kelsen is a normative science.
If A is, then B ought to B. Eg: If a person commits a murder, he ought
to be hanged.
The law is valid irrespective of consequences.

'State' is a synonym for the legal order which is nothing


but a pyramid of norms

The basic problem in Kelson's Pure Theory of Law is the derivation of norms. The
question of the criterion of the testing of lawness of these norms exists.

Kelsen answers this by his hypothesis of 'grundnorm' or fundamental norm or


basic norm or the base. The Grundnorm is a norm which is not capable of
deducation from any principles of the science of law. Hence, the grundnorm is
the fundamental norm and all other norms are derived from grundnorms in a
hierarchical structure.

'Purity' of Kelsen' Theory

Kelsen's Pure Theory of Law attempts to be a consistent theory of law


applicable to any legal system. He calls it pure because it is universalist and not
confined to any particular legal system.

Improvements upon Austin's Positivism Theory


Austin also proposed the Austinian Theory of Law which is also called Imperative
or Purely Imperative Theory of Law

No dualism between State and Law


Austin: Law is subordinate to the sovereign. Law is the
personification of the State. Since Law emanates from the sovereign,
it cannot control the sovereign.
Kelsen: State is synonym for the legal order. So there is no distinction
between State and Law.
Austin: State controls Law
Kelsen: Law regulates its own creation.
Law need not be imperative
Austin: Law is the command of the Sovereign
Kelsen: Law is not the command of the Sovereign but a hypothetical
judgement
No dichtomy between Private Law and Public Law
International Law may be law strictu sensu
Customary Law is law strictu sensu

Criticism
Lauterpacht's criticism - Primacy of international law over state law is a
back door entry permitted by Kelsen's theory to natural law.
Allen's criticism - Sources of law like custom, statute and precedent are
co-ordinate and do not admit of arrangement in a hierarchical pattern
adopted by Kelsen.
Friedmann's criticism - Pure science of law by Kelsen is inadequate from
point of view of legal theory. The sphere of law is now intersecting spheres
traditionally allotted to other social sciences like Economics, Psychology
and Sociology.

Related Topics
Normative Jurisprudence
Locus stadi

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