PURE THEORY OF LAW

Kelsen’s Theory of Pure Law:

Kelsen’s aim is to produce a ‘pure theory of law’. This is to rid law of any kind of
‘impure’ elements. He said that a theory of law must be free from ethics, politics,
sociology, history, etc. It must in other words, be ‘pure’.
Kelsen argued that a theory of law must deal with law as laid down and not as it ought to
be. This is why he is viewed as a positivist.
According to Kelsen, what is law is a set of ought. In other words, Kelsen is telling us
law being ‘ought’ propositions, knowledge of law means knowledge of ‘ought’ i.e.
‘norms’ and a norm is a proposition in hypothetical form: ‘If X happens, then Y is ought
to happen’. It is important to note that these ‘ought’ propositions are not what the law
ought to be (in terms of content) but the law itself.

Legal Norm
Kelsen introduces a world of ‘ought’ and called this legal norms. It is an ‘ought’ in the
sense that it is action directing. He called it an act of will. It is this ‘act of will’ that forms
the idea that law is specific technique of social organisation.
According to Kelsen, a norm is in essence action directing and should not be thought of
only imposing duty, but also including the idea of a permission of power. Thus, it is more
superior to ‘order backed by threat’ which is attributed to Austin.
Kelsen also distinguishes between legal, moral and other norm. His Science of Law is
not interested in moral norms. Thus, according to him, moral norms are merely
describing ones subjective preference. They are nothing more than our intuitions or
expressions of our subjective feelings or desire and thus, are irrational.

Looking at his ‘pure theory’, Kelsen argues that ‘law’ consists of directions to officials to
apply sanctions. According to Kelsen, ‘law’ is unique because of these two conditions (a)
one of coercion, by a system use of sanctions; and is (b) applied by agents or
officials, authorised by the legal order to apply sanctions. Hence, he concluded that
phenomenon that does not demonstrate these two conditions are excluded from the word
‘law’.
The officials legally ought to apply the sanction. Hence, only the officials could be
genuinely be said to be breaking the law, which occurs when the officials concerned
failed to apply the sanction.
Based on the above line of reasoning, Kelsen reiterated that the citizen does not have a
legal norm directed at him at all. Thus, a citizen does not break the law. He has instead
committed what Kelsen calls a ‘delict’. This merely means that a citizen has merely done
something which give rise to circumstances under which officials ought to apply
sanctions. In other words, the commission of the ‘delict’ is merely a satisfaction of the
condition in which an official is under an obligation to apply sanctions.
Rather, the law (legal norm) can only be broken by the officials when they fail to
carryout their obligations to apply the sanction even if the condition for the application of
it has been satisfied (the delict had been committed).
In his ‘pure theory’, Kelsen says that we ought to really concern ourselves with the
genuine legal norm, which is the subject matter of description by the rule of law. Thus,
the genuine norm of theft is worded as: “If someone steals, he ought to be punished’.
To Kelsen, the primary norm is directed at the officials. It simply means when somebody
steals, he is not breaking the genuine legal norm but merely committing a delict. When a
delict is committed, the condition for imposition of the sanctions is satisfied. Thus, the
official is then directed by the norm to apply a sanction.

(b) Legal Norms & Rule of Law

Kelsen distinguished between norms (what real law is) from what he calls ‘rule of law’ in
descriptive sense. Rule of law, such as, the various sections of the Penal Code of
Malaysia, or the various rules that are obtained from case law are not really laws. They
merely perform the function of describing what are the real laws, the legal norm.
• All in all, Kelsen maintained that a proper description of the law (legal norms)
requires everything that we know of as law to be converted into statements of the
form: “If a person does X, then an official Y ought to apply a sanction Z”.

(c) Legal Validity& Legal Norms

He claims that to say that a legal norm is valid is to say that it exists. ‘By validity, we
mean that the existence of norms. To say that a norm is valid is to say we assume its
existence’. It is important to take note that Kelsen does not distinguish between a rule
possessing the character of law and its validity. They are one and the same thing.
How do norms validate other norms? What Kelsen has in mind is a ‘root of title’- theory
of validity whereby one norm is validated by a more general norm which is validated by
an even more general norm. Thus, the validity of a norm is established by locating that
norm within the hierarchy or chain of norms. For example, the validity of some official
action such as to arrest a person. John is arrested. When we examine the validity of the
arrest we find that it was done in accordance with a warrant of arrest issued by a judge.
The issuing of the warrant was done in accordance with the provisions of an Act of
Parliament i.e. the CPC. When we examine the Statute we find that it has been made in
accordance with the procedures that make it an act of the YDPA in Parliament .

Kelsen Ideas of the ‘Grundnorm’:

The ‘grundnorm’ is the cornerstone of Kelsen’s theory of validity. He viewed the validity
of norm being granted by some ultimate norm which he calls the ‘grundnorm’ or ‘basic
norm’. The ‘grundnorm’ is different from other norms, in that it is not created by any
legal procedure stipulated by other norms, and the presupposition of its validity is logical,
in that without it the legal system cannot logically exist. The Constitution may have been
introduced under a law passed under an earlier Constitution (perhaps one in which the
legislature consisted of only one House). So the validity of the present Constitution will
rest on the validity of the earlier Constitution from which it was born.
The critics are of the view that Kelsen’s ‘grundnorm’ is workable only in a country with a
written constitution.
The purpose of the ‘grundnorm’ is to act as a benchmark in validating other norms as
well as making sure that we reach a conclusion when faced with the discussion of what is
law. Hence, to Kelsen, a ‘grundnorm’ is an assumption that stands outside the law and
that shows us how we can know what is law.
Kelsen prescribes to a ‘monistic’ view point i.e. that there can only be one ‘grundnorm’
in any legal system.
Kelsen argued that there are certain characteristics or features depicted in his discussion
of a ‘grundnorm’ and they are:
(i) The validity of a ‘grundnorm’- it is assumed to be valid despite the fact that it
sits at the very base of the ‘chain of validity’. It is valid, not in its ‘positive
legal sense’, but in its ‘legal logical sense’. Its validity is not authorised by
another norm but because it is simply assumed to be valid. For example, a
citizen ought to obey the Constitution.
(ii) The agent who assumes validity of the ‘grundnorm’- it is a legal scientist . He
or she is basically a person who is interested in talking about law or anyone
interested in describing the law.
(iii) There can only be one ‘grundnorm’- there can only be one, unique grundnorm
for each independent legal system. Seen here, the basic norm or grundnorm
gives a legal system its unity.
(iv) The ‘grundnorm’ ensures that norms do not contradict: If two norms were to
‘contradict’ each other, Kelsen must conclude that one of the two norms must be
invalid. Which one?
Conflict between an earlier and later norm and do not share the same time frame.
According to Kelsen, the earlier law is invalid.
Conflict of norms within the same time frame. According to Kelsen, it is a question
of statutory interpretation. However, take note of Kelsen and that is, when you are
interpreting the ‘rule of law’, you are not interpreting law (the norm) strictly but
merely interpreting a rule which purports to describe the law.
(v) The ‘grundnorm’ refers to the fact of effectiveness. But it must be made clear that
effectiveness is only a necessary condition, and is not a sufficient condition of
validity. Thus, Kelsen departs from Austin conception of validity which is based
on ‘habitual obedience’. Hart found his positivism in the ‘rule of recognition’
while Kelsen found his in the ‘grundnorm’. Kelsen’s ‘grundnorm’ is not identified
as a matter of fact but is, a presupposition that certain rules are valid.

Grundnorm & Legal Revolution:

In his work titled General Theory of Law & State, Kelsen had this to say about a
‘revolution’: ‘A revolution … occurs when the legal order of a community is nullified
and replaced by a new order in an illegitimate way… From a juristic point of view, the
decisive criterion of revolution is that the order in force is over-thrown and replaced by a
new order in a way which the former had not anticipated’.
The revolution need not arise out of a full scale and bloody civil war. When a revolution
occurs, we can witness a legal phenomenon: a change in the ‘grundnorm’.
According to Kelsen, when a revolution occurs, all the old laws in force under the old
regime lose their validity because the ‘grundnorm’ or basic norm that validated them can
no longer be presupposed because the old regime is no longer effective.
(a) The State v Dosso- In 1958, the President of Pakistan issued a Proclamation which
declared that the 1956 Constitution was null and void. The said President went on to
dismiss the members of Cabinet and dissolved Parliament. Later, posited the ‘Laws
 Continuance in Force Order’ which purported to validate all laws other than the
1956 Constitution.
The issue before the court was whether regulations made which were not in
accordance with the 1956 Constitution were legally valid or not. The Supreme Court
upheld the action. Mohamad Munir CJ, in referring to Kelsen’s ‘General Theory of
Law & State’ said: “If the revolution is successful in the sense that the persons
assuming power under the change can successfully require the inhabitants of the
country to conform to the new regime, then the revolution itself becomes a law
creating fact because thereafter its own legality is judged not by reference to the
annulled Constitution but by reference to its own success”.
Note: It would appear from the court’s decision above that the mere fact of
effectiveness was sufficient for legal validation of the revolutionary government’s
act. This interpretation was contrary to what Kelsen actually said i.e. while
effectiveness was necessary for validity, it was not sufficient, meaning that the mere
act of control was not enough.
(b) Uganda v Commissioner of Prisons ex parte Matovu- The issue in this case was
about the suspension of the 1962 Constitution by the Prime Minister and setting up
and emergency National Assembly and drew up a new Constitution (1966
Constitution) was challenged. The High Court of Uganda approved Dosso and Sir
Udo Udoma CJ relied on Kelsen’s statement in the ‘General Theory of Law & State
and said: “Applying Kelsenian principles… our deliberate and considered view is
that the 1966 Constitution is legally valid Constitution and the Supreme law of
Uganda”.
Note: Again it would appear that Kelsen’s General Theory of Law & State was
misunderstood based on the court’s decision. Although Kelsen said that
‘effectiveness’ was necessary for validity of a legal norm, it was not sufficient.
(d) R v Ndhlovu- In this case, Mr. Ndhlovu was sentenced to death. The British Crown
decided to exercise its prerogative of mercy purportedly pursuant to a provision
under the 1961 Constitution. The Smith Government was determined to proceed
with the execution. Mr. Ndhlovu applied to the High Court for a stay of execution.
The court dismissed the application and stated that it would recognise that the
government’s act as enforceable on the grounds of what they called the ‘principle of
necessity’ since someone had to govern and an illegal government was better than
no government at all. Thus, the illegal government had become ‘legal’ through
effectiveness.
(e) Lakanmi v AG- The Military Government then passed some regulations by which the
courts could be excluded from looking into certain acts of the government. The
Supreme Court rejected this argument and held the regulations passed void. It went
on so far to state that the Military Government was only an ‘interim’ or ‘temporary’
government so that the 1963 Constitution remained valid.
(f) Jilani v The Government of Punjab- In 1969, the Commander-in-Chief of Pakistan
armed forces took control of the State. The armed forces abolished the 1962
Constitution of Pakistan and to exclude the jurisdiction of the court over issues of
validity of any order made by the Martial Law authority. The applicant, Jilani, was
detained under a regulation made by Martial Law authority. The Supreme Court
held that the Kelsenian principles argued in support of the validity of the regulation
 made by the Martial law authority were inapplicable because, to quote: “They were
merely a ‘jurist’s proposition about law’ and did not authorise or lay down any legal
norms which were ‘the daily concerns of judges, legal practitioners or
administrators’. The Supreme Court also expressly overruled The State v Dosso.

Criticisms of ‘Grundnorm’:
1. His theory has unconvincing unity- He views ‘nullity’ as a sanction. To Kelsen,
there is no essential distinction between civil and criminal law because they are both
social techniques of control.
2. We do not necessarily think of law as primarily addressed to officials. Don’t we
ordinarily think of law as being directed towards citizens instead? Hart was of the
view that why did Kelsen recognised these ‘rule of law’ as separate from what really
law is? And what role and function do this rule of law provides? Thus, the criticism
is that if Kelsen really believes in the facility of rules of law, why did he exclude this
great facility from his theory of norm.
3. Kelsen’s explanation of unity of legal system is unconvincing where international
law and municipal law is concerned.
4. An insufficient analysis of what is meant by legal system
5. The ‘grundnorm’ is redundant. It is too general to tell us what laws it validates and
hence pointing to it does not help. In other words, it is unreal.
Note: It is important to point out that despite the criticisms, it is possible to defend
Kelsen on the basis that he was providing a scientific description of what is law. So what
Kelsen is trying to describe here is the deep structure. This structure is a specific type of
social technique that takes the form of instructing officials what they ‘ought’ to do in
various circumstances.

Comparison between the Theory of Hart and Kelsen on Law, the Legal System,
Sovereignty and State:

Law
Kelsen viewed ‘law’ as a technique of social organisation. To him, law is a set of ‘ought’
propositions. He argued that the theory of law must deal with law as laid down and not as
it ought to be. Kelsen claims that to say that a legal norm (law) is valid is to say that it
exists. By ‘validity’ we mean the existence of norms. To say that a norm is valid is to say
we assume its existence.
According to Kelsen, ‘law’ is unique because of two conditions i.e. one of coercion, by a
systematic use of sanctions and applied by agents or officials authorised by the legal
order to apply sanctions. On the other hand, Hart criticised Kelsen (including Bentham
and Austin) that his or their approach treats law as mainly a matter of power, coercion
and sanctions and thus limiting range of options and choices people have- making
conduct obligatory.
Kelsen rejected the concept of justice as a measure of legal validity. To him, he paid
attention to the issue of ‘effectiveness’ as one of the requirements of legal validity
although ‘effectiveness’ alone is not a sufficient requirement.
Kelsen’s view on international law is that International law is law as it contains all the
essential elements of a legal order. It is coercive order and it provides for sanction.
Legal system
To Kelsen, in every ‘legal system’ there is a need to address the validity of law (legal
norms). Thus, the ‘grundnorm’ is the cornerstone of Kelsen’s theory of validity
Kelsen’s ‘grundnorm’ gives legal scientist a choice of whether to assume ‘legal validity’
or not. This is crystal clear in circumstances of revolution. As to Hart’s ‘rule of
recognition’, there is no choice as to whether to say that a rule is legally valid or not. It is
valid as long as they are ‘accepted’ by officials of the legal system.
According to Kelsen, in every legal system there is one ‘grundnorm’ be it for national or
international law. On the other hand, Hart’s ‘rule of recognition’ can be inform of
statutes/legislation, case law etc.
Kelsen, like Austin, is more concerned with looking for ultimate source of authority.
Hence, ‘grundnorm’ is concerned with ‘norm-creation’.

Sovereignty
Traditional jurisprudence asserts that a sovereign is unlimited and illimitable in his
legislative function.Traditional jurisprudence associates ‘sovereignty’ with a person who
is above the law and whose word is law to his subjects. Hart amply demonstrates that
such a conception does not truly characterise the real world where the sovereign is bound
by the law he makes. On the hand, Kelsen view the notion of ‘sovereignty’ from the
perspective of a legitimate government while addressing his idea of legal validity and
effectiveness.

State
According to Kelsen, the ‘State’ and ‘law’ are, fundamentally, identical. The State is a
political organisation which expresses a particular legal order. It is ‘governed by law’.
State and law are to be thought of as co-extensive. Under the terms of the pure theory, the
State is the law, and the traditional dualism of ‘Law versus State’ had disappeared.

Conclusion:
It should be noted that although it is unfair to label his project as indulging in empty
formalism for they have some practical liberal values which makes positivism a forceful
theory. However, Kelsen’s pure science, based on justified normativity suffers from some
practical problems like we do not ordinarily think of law as primarily addressed to
officials and also the ‘grundnorm’ is too general to tell us what laws it validates etc.