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ACKNOWLEDGEMENTS
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Thanking you
Sirshendu Mazumdar
H.N.L.U.
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Kelsen’s Pure Theory of Law and its application in modern times
CONTENTS
Acknowledgments ...............................................................................................................1
Chapter I : Introduction........................................................................................................3
The Rule of law: Revolutions and the Legality under the Pure theory ..........................15
Chapter V : Conclusion......................................................................................................20
References ..........................................................................................................................22
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Kelsen’s Pure Theory of Law and its application in modern times
CHAPTER I : 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.
In the words of Prof. Dias, the pure theory of law of Hans Kelsen represents a
development in two different directions. It marks the most refined development to date of
analytical positivism. It also marks a reaction against the welter of different approaches
that characterised the opening of the 20th century. This does not mean that Kelsen
reverted to ideology. As a matter of fact, he sought to expel ideologies of every
description and present a picture of law, austere in its abstraction and severe in logic.
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, are certainly illuminating and avoid
some, at any rate, of the perplexities of the Austinian system. Still, this theory of Kelsen
is criticised on many grounds. These criticisms are further dealt in this project work.
Kelsen was criticised by many Jurists like Julius Stone, Freeman etc., but still the Pure
theory of Law hold stand in the modern world democracies governed by their respective
constitutions.
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Kelsen’s Pure Theory of Law and its application in modern times
RESEARCH METHODOLOGY
Research Methodology
The project is basically based on the doctrinal method of research as no field work is
done on this topic.
To do an in-depth analysis of the concept of Pure Theory of Law. To know what the
theory states and whether it is truly applicable in the modern legal society. Also, to know
about the grounds upon which it is being criticized by other jurists. Further, the Aim of
this project is to what implications it carry and contributions it has made in the legal
jurisprudence.
Sources of Data
The whole project is made with the use of secondary source. The following secondary
sources of data have been used in the project-
1. Books
2. Websites
Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this
research paper.
Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as
in this topic, the researcher is providing the descriptions of the existing facts.
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Kelsen’s Pure Theory of Law and its application in modern times
As the natural law theory lost some of its credibility owing to its fantastic but
unverifiable claims of universal reason at the end of the 18th century a reaction in the
form of legal positivism, the theory that the true knowledge of law can only be
accomplished by observing law as it is, not as it ought to be, took hold. For a long while,
the Imperative Theory of Law propounded by John Austin held sway but by mid 20th
century the principle of the command of the sovereign backed by force, which had
assumed an elevated position in the realm of legal positivism, was in remission. Its
unrepentant insistence on the indispensable place of coercive force melted before the
more dynamic theories preaching the systematic quality and normative nature of law.
Pure theory of norms was one such theory attempting to erode these errors.
Kelsen began his long career as a legal theorist at the beginning of the 20th
century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly
contaminated with political ideology and moralizing on the one hand, or with attempts to
reduce the law to natural or social sciences, on the other hand. He found both of these
reductionist endeavors seriously flawed.
1
C.B. Gray, The Philosophy of law: An Encyclopaedia,1st ed. (New York, 1999) at 478.
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Kelsen’s Pure Theory of Law and its application in modern times
any rule located in any other legal system stripped down to this minimum quality, all are
of the same character.2
2
J.M. Kelly, A Short History of Western Legal Theory, 7th ed. (Oxford, 2001) at 356.
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Kelsen’s Pure Theory of Law and its application in modern times
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Kelsen’s Pure Theory of Law and its application in modern times
primarily interested in these questions. That the study of law has been ‘adulterated’ by
other disciplines is, according to Kelsen, perfectly understandable. These disciplines deal
with subject matters ‘closely connected’ with law. But the pure theory of law, Kelsen
insists, “undertakes to delimit the cognition of law against these disciplines.... because it
wishes to avoid the uncritical mixture of methodologically different disciplines.... which
obscures the essence of the science of law”.3
3
The Pure Theory of Law, p.1.
4
Hans Kelsen, ‘General Theory of Law and State’, transl. A. Wedberg (Cambridge, Mass., 1949), p. 13.
5
Kelsen, ‘The Pure Theory of Law and Analytical Jurisprudence’, Harward Law Review, p. 44, at 48-49
(1941).
6
Ibid.
7
Kelsen, ‘The Pure Theory of Law, transl. M. Knight (Berkeley, 1967), p. 1.
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Kelsen’s Pure Theory of Law and its application in modern times
Norms are regulating setting forth how persons are to behave and positive law
is thus a normative order regulating human conduct in a specific way. A norm is an
‘ought’ proposition; it expresses not what is, or must be, but what ought to be, given
certain conditions; its existence can only mean its validity, and this refers to its
connection with a system of norms of which it forms a part. It cannot be proved to exist
factually, but simply to be derivable from other norms, and is, therefore, valid in that
sense.
But if a norm can only be derived from other norm, theoretically, this means
that one can continue this derivation ad infinitum, but in practice, since norms are
concerned with human conduct, there must be some ultimate norm postulated on which
all the others rest. This is the Grundnorm (the basic norm). So far as the legal system is
concerned this basic norm must be extra legal, since ex hypothesi it does not rest upon
another legal norm. But Kelsen is at pains to point out that the choice of basic norm is not
arbitrary. On the contrary it must be selected by the legal scientist on the principle of
efficacy, that is to say that the legal order as a whole must rest on an assumption that is
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Kelsen’s Pure Theory of Law and its application in modern times
by and large efficacious, in the sense that in the main people do conduct themselves in
conformity with it.8
According to Kelsen, the basic norm cannot, unlike the other norms, be
justified by reference to other or more validating law. Thus it may instead derive its
validity from the fact of recognition, acknowledgment and acceptance conferred on it by
a sufficient minimum number of persons in the political entity. Law therefore is not to be
isolated from the organised structure and power of the state. This structure is normative
and thus the concept of sanctions which plays a rather exclusive role in the Austinian
doctrine as the element which makes law functional, relies on other forces such as
prosecutors, officials and judges to perform their aspects of the normative structure
before sanctions are activated and inflicted.
The basic norm is non positive and so is not the concern of legal science. The
choice of the basic norm may also have important implications in determining the relation
of national state law to international law. For if the basic norm is in conformity to the
constitution of each state, there will be a pluralistic congeries of independent legal
systems, while if that norm is taken in relation to international law, there will be a
monistic world order, from which each national law will derive.
8
What is Justice, p. 268.
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Kelsen’s Pure Theory of Law and its application in modern times
Kelsen does not negate the value of the sociology of law. This stands side by
side with normative jurisprudence and neither can replace the other. The latter deals with
validity and the former with efficacy, but the two are inter-connected, since the sociology
of law presupposes the normative concept of law. But Kelsen makes a curious distinction
between the role of the legal scientist and of a law making authority, such as a judge. The
former can only describe and not prescribe, and therefore, he cannot exercise any choice
open to the latter. The legal scientist, must therefore, accept any decision as valid, since it
is outside his competence to say whether it is within the framework of the general norm
in question. And though, he can point out possible interpretations, he must leave the law-
making authority to make the choice, for to try to influence this authority is to exercise a
political and not a legal function. This seems to involve an act of renunciation on the part
of legal science in which it is hardly likely to acquiesce, and apparently treats the
advocate arguing a case as a politician rather than a lawyer.
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
9
Supra note 22.
10
Supra note 23.
11
Supra note 22; supra note 23.
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Kelsen’s Pure Theory of Law and its application in modern times
that it exists or that there is a power behind it that obligates those whose behaviour it is
meant to order4. That a norm is effective then, while a condition of validity, is however
not the basis of its validity5. 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 conditions7. In Kelsen‟s enlightened view, 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 visited 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.
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Kelsen’s Pure Theory of Law and its application in modern times
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Kelsen’s Pure Theory of Law and its application in modern times
normative, juristic knowledge in its ideal aspect, that is, as a system of ideas, the subject
matter of social psychology or sociology in its material aspect, i.e., as a motivated or
motivating physical act (force).”
Once the hierarchic character of law is grasped, the distinction between law-
making or legislation on one hand and execution or application of law on the other, has
not the absolute characterwhich the traditionalists attribute to it. The majority of the legal
acts are at once legislative and judicial acts. with every such act, a norm of superior
degree is put into execution and a norm of inferior degree set up. For example, the first
form of the constitution which is a law-making act of the highest degree, is the execution
of the basic norm.
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Kelsen’s Pure Theory of Law and its application in modern times
individuals”. Raz notes, “The intention to affect someone’s behaviour is replaced by the
intention to create a norm.”12 This is similar to law, which is a norm that is present to
prohibit certain behaviour, thus law and state flow as one. For the state is but a complex
of norms. Each one of the norms that, collectively, amount to everything we mean by ‘the
State’, is no more and no less an “ought”- proposition than any rule located in any other
part of the legal system; stripped down to the minimum quality, all are of the same
character. Kelsen believed that the rule of law should be used in descriptive sense, so that
they would not be confused with the norms created by the law making authorities, he
believed the rule of law is the law of nature. The rule of law like the law of nature
connects two facts within on another as condition and consequence. The condition here is
the “cause”, the consequence is the “effect”. The principle according to which natural
science describes its object is causality; the principle according to which the science of
law describes its object is normativity. The rule of law (the legal norm) is a prototype of
good being rewarded and evil being punished.
The Rule of law: Revolutions and the Legality under the Pure theory
The experience of the era of war which, in Western Europe closed in 1945 led
to a former entrenchment of constitutionalism and of human rights, as well as the revival
of interest in natural law. This resulted in the idea of legality (the rule of law, the
Rechtsstaat), increasing in value and acceptance. This in turn led to the focused interest
in how to evolve and justify a revolution regime regardless of whether there was violence
or not, it could even have been brought by a peaceful revolution. Kelsen famously
applied his theory to situations where the basic norm changes radically (i.e. revolutionary
situations). According to Kelsen, when this occurs that is, when revolution becomes a
successful Coup d’etet a new basic norm is generally presupposed, authorising and
validating the new constitution.
12
J. Raz, “The Purity of the Pure Theory”, (1981) Philosophia at 496.
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Kelsen’s Pure Theory of Law and its application in modern times
new basic norm is presupposed. Kelsen theory is both logical in theory and in practice.
Although Kelsen never expressly authorised judicial use of his theory, it was cited as
justifying judicial recognition of new regimes following coups in Pakistan (1958) and in
Uganda (1965, and also following the Rhodesian Unilateral Declaration of Independence
in 1965). In State v. Dosso13 the Supreme Court of Pakistan had held usurper to be
effectively in power hence lawful on Kelsenion grant. A similar decision was reached in
Uganda v. Commissioner of Prisons Ex P Matouw.14 On the other hand, the revolution
may have taken the form (as in Rhodesia) of breaking loose from a prior but continuing
legal system (in Rhodesia’s case, that of the United Kingdom whose parliament had in
English law the power to legislate for the territory and whose ultimate rule of recognition
could not, of course, be affected by what the local usurpers did).
13
[958] 2 Pakistan SCR 180.
14
[1966] EA 514.
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Kelsen’s Pure Theory of Law and its application in modern times
Several problems have been associated with the theory but not all those
problems are accurately stated arising from a substantial misunderstanding of the theory
and in the confusion in the minds of jurists as to the distinction between constitutions for
example and a basic norm. One example is the Black’s Law Dictionary, which notes that
the Grundnorm “may be an elaborate system of lawmaking, such as a constitution”. A
constitution as will in due course become clear, by the reckoning of Kelsen, is not a basic
norm. This is not to say that there are no problems for like every intricate theory the Pure
Theory has come in for its fair dose of criticisms.
The most obvious but least mentioned conceptual problem with the Pure
Theory is that for a positivist theory that is concerned with the law as it is, it is something
of an irony that for all the posturing, the basic norm that validates all other laws and
norms should be derived not from law as it is, not from positive law but from, of all
places, a non-law or extra-law source. This may at first sound like “ego” criticism but not
to be dismissed with a wave of the hand is that it acknowledges the important role played
by non-law elements in any legal order but particularly in the validity to be ascribed to
positive law. Yet positivists recoil at the suggestion that non-law elements may validate
the law. The other conceptual or structural problem is that it appears somewhat
contradictory that on the one hand every norm below the basic norm in the hierarchy
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Kelsen’s Pure Theory of Law and its application in modern times
draws from the fountain of validity of the basic norm and on the other hand that there is a
hierarchy with one norm finding validity in the norm directly above it and so on till the
basic norm is encountered. It does appear indeed that it has to be one or the other though
it has to be admitted that most, if not all the other touted validating norms, whether they
be constitutions, give the impression that they harbour this ambivalent characteristic.15
The concept of the Grundnorm has been assailed as unreal and as merely a
thinly veiled Austinian sovereign. The concept of a basic norm behind which no further
legal inquiry may be made is considered unacceptable as there are a wide range of
complex reasons beyond simply that “one ought to obey the basic law” such as political,
social, psychological reasons which Curzon states may be behind the conscious response
of citizens to legal duties. Further than Curzon’s surmise, it is added that those reasons
may even be subconscious. For a second dimension to the basic norm problem, how can
one evaluate what is sufficient minimum support for the basic norm without an adventure
into the so called metaphysical or non-law facts as the political and the sociological?
Indeed while one agrees that there should be a basic norm for its validating role, in
modern constitutionalism the primacy of position of the Kelsenian basic norm may not be
easily rationalised. It still rankles that this non positive concept would assume that role
over and above the fundamental law or constitution.
15
Mohammed Enesi Etudaiye, ‘The Pure Theory of law and the fragile new Democracies of the
Developing World’, Commonwealth Law Bulletin Vol. 33, No. 2, 217–242, June 2007, available online at:
available online at <http://journals online.tandf.co.uk/http://dx.doi.org/10.1080/03050710701594597>.
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Kelsen’s Pure Theory of Law and its application in modern times
Worse, there is the suspicion that the basic norm is not quite as non positive
as Kelsen is wont to think or cares to explain. For one reason Kelsen’s basic norm is
positivisable by which is meant that the constitution may indeed enact a sanction or
varying sanctions for a breach or a variety of breaches of the constitution as the case may
be. This is indeed rare but quite possible and plausible. It is suggested that one instance of
positivisation of an aspect of the basic norm is the rule regarding the impeachment of the
chief executive for gross misconduct16 that would include gross constitutional breaches
and a betrayal of the oath of office subscribed to by him under the constitution. Even so
jurisprudentially, if not entirely constitutionally, when the courts pronounce certain
official acts unconstitutional, it would appear that the court is saying that the defaulting
official had disobeyed the constitution he ought to have been obeying and the sanction
could be nullifying the effect of that official act. This latter may be referred to as
positivisation by implication.
The criticism has also been made that coercion is overemphasised and that
coercion is not the only factor that compels obedience to the law. It has been suggested
that, in a wide variety of cases, in fact obedience may be propelled by a feeling of
obligation on the part of the subject. While in theory these criticisms appear attractive
there are also substantive and substantial questions to be asked. For instance, in spite of
the criticisms, it has been nearly impossible for analysts to point out which law forms
have been inadvertently excluded from legal systems as a result of his pontifications.
Thus the theory, in spite of the criticisms is nearly all encompassing if not entirely so.
One is hard pressed to find any such law forms unlike the Imperative Theory, for
instance, which hurts its shoulder reaching for excuses to justify including such as custom
and delegated legislation within the framework of the theory. Perhaps the most
fundamental criticism aimed at the pure theory is that it analyses legal systems
inaccurately particularly in one regard – his reference to a “historically first constitution”.
16
Section 140 of the Constitution.
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Kelsen’s Pure Theory of Law and its application in modern times
CHAPTER V : CONCLUSION
Hans Kelsen’s “Pure Theory” is more valid today than it has ever been. H. L.
A. Hart described Kelsen as “the most stimulating writer on analytical jurisprudence of
our day”. Kelsen’s theory represents a development in two directions. On the one hand, it
marks the most refined development to date of analytical positivism; and on the other, it
marks a reaction against different approaches that characterized the opening of the
twentieth century.17 Kelsen’s goal in developing the Pure theory was to make possible a
value-free jurisprudence or a “science of law”. This jurisprudence would focus on
nothing other than “cognition” of the law, that is how exactly “law is perceived and
recognised”.
One must have in mind the fact that principal value of the pure theory of law,
first of all, is in that it presents the subject of its study, that is, positive law such as it is,
without any unfamiliar additions. It is not only that the methodological doctrine of great
heuristic possibilities is in question, but system learning as well that within its
investigations ends to embrace the universal legal order interwoven in the composition of
which are certain ideas of natural law all contained in many international law documents
of general or regional character.
17
R.W.M Dias, Jurisprudence,5th ed. (London, 1985) at 358.
18
M.L.R. Stone, “Mystique and Mystery in the Basic Norm”, (1963) Modern Law Review at 37.
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Kelsen’s Pure Theory of Law and its application in modern times
Dias fails to recognise this. Stanley Paulson has argued that Kelsen’s neo-Kantian
argument fails as a methodology grounding in the legal sphere because Kelsen does not
demonstrate that thisis the only way to understand the validity of law. It is possible for
example that in a shared value-system, some notions of justice or morality-underlies
validity, in addition to, or instead of reasoning by legal links. 19
However this theory has stood the test of time unlike the Natural law theory,
which over the centuries has slowly lost its followers to more practical theories and it is
now in its dormant stage. It would appear that because Kelsen’s Pure theory is logical and
related to reality it has retained its validity, Just as the highly practical theory of Max
Weber’s (Weberian methodology).There is surely sense in which the Pure theory does
offer something of value for those working in the field of what we now generally call
jurisprudence, while its orientation appears to be away from the normative concerns of
contemporary jurisprudence. The Pure theory is expansionary, and one of most
significant things about theory is that each and every law or “norm” is a consequence of a
prior political decision.
Thus, the pure theory of law of Hans Kelsen, regardless of its principled
negative relation towards the natural law teaching, starting exactly from the attitude that
law must be presented such as it is, is forced, whether it wants to or not, also to deal with
the study of the corresponding contents of natural law, which in present times under the
name “human rights" make an essential integral part of the existing international law.20
One cannot say that Hans Kelsen was totally wrong in classifying law as pure
and impure. HLA Hart, a later positivist, though criticized Kelsen to some extent for the
exclusion of “alien elements”, derived the rule of recognition from Hans Kelsen’s Pure
Theory of Law. Hart viewed the concept of rule of recognition as an evolution from
Kelsen's Grundnorm. Further Kelsen’s pure theory of Law had a far reaching impact on
the later positivists like Tony Honoré and Hart. Kelsen made original, striking and
valuable contribution to jurisprudence and he considerably influenced the modern legal
thought.
19
S.L. Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure theory of Law”, (1992) Oxford Journal
of Legal Studies at 311.
20
Available at: <www.wto.org/english/news_e/sppl_e/sppl12_e.htm>
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Kelsen’s Pure Theory of Law and its application in modern times
In the last, the researcher would like to put forth a modern legal example
where Pure theory of Law is applicable. The current political turmoil and legal conflict
between the judiciary acts the government of Pakistan, has shown a retreat to the decision
in Jilani , in that the former Chief Justice Chowdary ruled against the former President
General Musharraf’s. Thisdecision had elements of the Pure theory of law’s Grundnorm ,
in that he ruled against the government basing this decision as a norm which arose from
the Grundnorm constitution.As it was necessary for the rule of law to survive and for a
countries survival in theinternational law realm (In this case the British Common
wealth which requires certain international requirements to be fulfilled in order for a
country to become part of theCommon wealth or risk being removed from it, if it is
already part of it).This also highlights Kelsen’s belief that international law has
supremacy over municipal law. Currently Pakistan has been suspended from the
commonwealth, becauseof the emergency rule placed by Musharraf in 2007 and his
removal of the SupremeCourt judges in 2007.
REFERENCES
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Kelsen’s Pure Theory of Law and its application in modern times
No. 2, 217–242, June 2007, available online at: available online at <http://journals
online.tandf.co.uk/http://dx.doi.org/10.1080/03050710701594597>.
Edwin W. Patterson, Hans Kelsen and His Pure Theory of Law, Volume 40, Issue
1, Article 2, California Law Review, Available at:
<http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3427&context=c
alifornialawreview>
Zoran Jelić ‘An Observation On The Theory Of Law of Hans Kelsen’, UDC
340.12 Facta Universitatis Series: Law and Politics Vol. 1, No 5, 2001, pp. 551 –
570 available at: <http://facta.junis.ni.ac.rs/lap/lap2001/lap2001-01.pdf>.
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