Kelsen’s Pure Theory of Law

A research submitted in partial fulfillment of the course Jurisprudence-I for the

requirement of Degree of B.A; LL.B. (Hons.) for the Academic Session 2020-21

SUBMITTED BY:
ANSH PRASAD
ROLL No:- 1916
SEMESTER-5th

SUBMITTED TO:
Dr. Manoranjan Kumar
Faculty, Jurisprudence-I
B.A;LL.B. (Hons.)

OCTOBER, 2020

CHANAKYA NATIONAL LAW UNIVERSITY, NAYA NAGAR,

MITHAPUR, PATNA-800001

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A; LL.B. (Hons.) Project Report entitled “Kelsen’s
Pure Theory of Law” submitted at Chanakya National Law University, Patna is an authentic record
of my work carried out under the supervision of Dr. Manoranjan Kumar. I have not submitted this
work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
Project Report.

(Signature of the Candidate)

Ansh Prasad
Roll no- 1916 Chanakya National Law University, Patna

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 ACKNOWLEDGEMENT

I place on my record my sincere thanks to all who helped me in making this project a reality. This
project could not have been completed without the sincere efforts of my kith and kin. They
supported me in every possible way and helped me not only by providing me information but also
in the making of this project. They provided me with all the emotion and support that I needed and
they proved to be a source of my constant extrinsic motivation. This project would have become a
futile effort in their absence. I would like to mention the name of my teacher Dr. Manoranjan
Kumar, who provided me not only with technical know-how of the project but also got me through
the struggles of making a project on such an important topic.

A very special thanks to my friends who were there to support me in every possible way, ranging
from aiding me in finding the relevant materials to helping me in cracking the trick of formatting.
Their help was such that it would always be remembered by me. At last I would like to thanks each
and everyone who were there with me during the making of this project and who helped me either
directly or indirectly. Their immense contribution means a lot to me and this journey would not
have been possible in the absence of their tireless efforts.

-Ansh Prasad –
5 th Semester –
B.A; LL.B.

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 Table of Content

DECLARATION BY THE CANDIDATE ................................................................................... 2

ACKNOWLEDGEMENT ............................................................................................................ 3
Table of Content ............................................................................................................................ 4
1. Introduction ........................................................................................................................... 5
2. The Normativity of law .......................................................................................................... 7
A. Separation of factual ‘Is’ from ‘Legal ought’. .................................................................... 7
B. Pure theory is a theory of positive law. .............................................................................. 8
C. ‘Oughtness’ is not the monopoly of law. ........................................................................... 8
3. Nature and origin of the Basic norm or Grundnorm. .......................................................... 9
A. Validity of Grundnorm. ..................................................................................................... 9
4. Principle doctrine of pure theory of law. ............................................................................ 10
A. Basic norms control or delimits the norm derivable from it in three principle ways. ........ 10
B. Delimitation of competence by intermediate norm. ......................................................... 10
C. Norms as depsychologised command. ............................................................................. 11
D. Concept of duty, liability and right .................................................................................. 11
E. Concretisation of the system of norm. ............................................................................. 12
F. Contract as concretisation of norm...................................................................................... 13
G. Private law and Public law are same................................................................................ 13
H. State, sovereignty and legal order .................................................................................... 13
I. Legal Personality. ............................................................................................................... 13
5. Criticism ............................................................................................................................... 14
6. Conclusion ............................................................................................................................ 15
Bibliography ................................................................................................................................ 16

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 1. Introduction

After the 1914 war most of the central and eastern state of Europe became independent, like Poland
etc. many of the state reformed their old constitution whereas many of them created their own new
constitution in a written form. The idea of lawyers was thus directed towards providing with basic
fundamental law as the basis of legal system.

Hans Kelsen was an Austrian-American jurist, he gave the ‘Pure theory of law’. He was a jurist,
writer, philosopher and a teacher. He was a Jew, and for that reason he had to move from one
country to other. His career was very disrupt. But moving from one country to other also provided
him with the opportunity to influence and associate with legal scholar from all over the world. He
was a professor in law of Vienna and has published many books. Kelsen had also the opportunity to
write the constitution of Austria, which was subsequently adopted in 1920.

Though separate in time, Hans Kelsen just like Austin shows hostility toward the natural law
philosophy. He just like Austin don’t considered natural law philosophy as a study of jurisprudence.
It is often contended that as we move from Austin to Kelsen we move into the realm of universalist
theory of law.

The reason why Kelsen calls it a universal theory is because, unlike the theory of Austin his theory
of ‘Pure theory of Law’ was not limited to only modern developed society but has a universal
validity, irrespective of geography and politics. The Austin theory is regarded as a theory which can
only be applied the modern developed society. 1

Another explanation of Kelsen in regarding his theory as pure is that, his theory is not distorted by
reference to existential factors of a particular legal system, but is based on the inner essence of
specificity of law which distinguishes it from a particular legal system.

AIMS AND OBJECTIVE

1. Researcher tends to critically analyze the pure theory of law.

2. Researcher tends to analyze the criticism of kelsen’s theory.

3. Researcher tends to analyze why kelsen theory is termed pure?

1
1979, ‘Kelsen’s Theory of the Basic Norm ’in Raz, The Authority of Law, Oxford: Oxford University Press.
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Hypothesis

The researcher hypothesizes that kelsen’s pure theory of law is based upon universality. It may have
several criticisms but this theory takes into account every society i.e. it has universal validity.

Research Questions

1. What is Kelsen’s pure theory of law?

2. Why this theory is termed pure?

Research Methodology

The researcher proposed to undertake the doctrinal method which includes documents, legal
propositions, doctrines, articles, books and online research etc.

Sources of Data

The researcher will use both, primary as well as the secondary source to complete this project.

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 2. The Normativity of law

Hans Kelsen makes a sharp distinction between the sphere of ‘Is’ and ‘Ought to be’. He says that
the sphere of is generally that of natural sciences, for eg; Physics, chemistry, biology and others.
The law of ‘Is’ sphere becomes invalid if the result don’t follow. For eg; If A is then B is. In such a
case when A follows B has to follow, if B does not follow the law will become invalid.

Austin reject this law of ‘Is’ sphere on the ground that it the law of natural science and is not
enforced by any determinate human superior, nor are they addressed to rational being, and neither
there is any sanction imposed. Prof. Kelsen on the other hand also rejects law of ‘ is’ sphere but on
a deeper ground. He lays down that such laws are essentially descriptive of their sequence of cause
and effect in the universe of existence.

Kelsen believed that the law in lawyer sense belonged to the ‘law ought to be’ , to the normative
sphere and not descriptive sphere. It remains valid even if the law is being followed or not as we
already know that most of the time it is not followed. 2

Law in the natural science tells us:-

When A is then B is.

Law in the lawyer sense tells us:-

When A is then B ought to be.

The law in lawyer sense remains valid even if it is not followed. As explained above, it may be that
B may not be followed always but that does not nullify the law. Whereas in the case of laws of ‘Is’
if B is not followed then in such a case the aw becomes invalid.

Kelsen believes tat law in lawyer scenes belongs too the ‘law ought to be’ and is only the subject
matter of jurisprudence. The law of ‘is’ sphere is not the subject matter of jurisprudence.

A. Separation of factual ‘Is’ from ‘Legal ought’.

Kelsen insisted that only by separation of factual ’Is’ from ‘Legal ought’ can the purity of law be
established. He has called for the separation of the sphere of the normative and existential so that

2
Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Spring 2016
Edition), Edward N. Zalta (ed.),
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the purity of the law in his sense can be maintained. He also was view that the law in the lawyer
sense belonging to the law of ‘ Law ought to be’ cannot be derived from the laws of ‘Is’ sphere. 3

B. Pure theory is a theory of positive law.

It is to be noted that the Kelsen pure theory of law deals with the law as it is and not with the law as
it ought to be. It does not determine whether the law is good or bad, or whether it serves the purpose
of law or not. It simply lays down law as it is and deals with what is law.

Hear a confusion may arise, as the pure theory of law deals with sphere of ‘ought to be’ and not
with the ‘is' sphere. In simple language it can be said that insofar as it deals with law of normative
character, it determines the ought addressed by law as it is.

C. ‘Oughtness’ is not the monopoly of law.

As discussed above oughtness is one of the most essential characterise of a law in normative sense.
But it is to be noted that doughtiness is not the monopoly of law in the lawyer sense. Other ought of
which Kelsen talks are ought of, ethics, rammer, religion etc. 4

Kelsen insists that the legal normative must be separated from other ought such as ethicopolitico
normativeness, so that the law in his sense may be established.

3
Kelsen's Pure Theory of Law, Erich Voegelin, Political Science Quarterly, Vol. 42, No. 2
4
Tur, R.H. & Twining, W. (eds), 1986, Essays on Kelsen, Oxford: Clarendon Press.
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 3. Nature and origin of the Basic norm or Grundnorm.

The next important question which may come to anyones mind is, where does the legal norm comes
from and who validate a legal norm. Kelsen believes that all norm derive its validity from a basic
norm. Here Kelsen has excluded the possibility that a norm can be derived from facts i.e. “is
propositions”. For eg; if A ought to perform the terms of contract with B, he must do so, because
anterior norm laid down in effect that an agreement made must be observed. That anterior norm is
valid because of some other anterior norm laid down by the authority which need to be observed.
All of these norms are stable in form.

In other words each norm derives its oughtness from some anterior norm and that anterior norm
derives its validity from some still higher norm and that higher norm derive its validity from another
higher norm. Eventually we come to a stage where the validity of that anterior norm cannot be
traced to any precedent or anterior norm. This norm is known as the Grundnorm.

A. Validity of Grundnorm.
Kelsen says that to derive the validity of Grundnorm is an impossible task. Just like, Sovereign was
the starting point for Austin, Grundnorm is the starting point according to Kelsen. He has argued
that the question of validity of Grundnorm is itself a meta legal question according to pure theory of
law.

It is argued by Kelsen that the Grundnorm is neither valid nor invalid, it is altogether a hypothesis,
the usefulness of Grundnorm lies in extent to which other norm can be derived from it.

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 4. Principle doctrine of pure theory of law.

A. Basic norms control or delimits the norm derivable from it in three principle ways.

a. It may apportion the law making competence.

Kelsen says that the Grundnorm whether or not it does more, it must lay down where the power to
make valid norm resides. It has to specifically lay down the provisions which would enable or give
power to create a new legal norm.

b. It may regulate the norm making procedure.

Basic norm may regulate the procedure to be followed in creating norms. The basic norm shall
specify certain procedure which one must follow to create a legal norm.

c. May limit the content for the valid norms.

Professor Kelsen has specifically says that prohibition being a part of basic norm, no norm
inconsistent with the basic norm shall be valid. Any norm which violates the Grundnorm would be
declared void. A law to be legally valid has to be in consonance with the Grundnorm. That,
ofcource conforms to the assumption of the judicial power to strike down such legislations.

B. Delimitation of competence by intermediate norm.

Kelsen says that as the basic norm controls all the norm inferior to it, similarly every subordinate
norm also has the same quality in relation to all norm inferior to it. Therefore, every norm controls
other norms inferior to it, and except Grundnorm every other norm is controlled by all the norms
which are superior to it.

Just like the basic norm the inferior norms also has the same quality in relation to the norm inferior
to it i.e.;

a) may apportion the norm making competence.

b) may regulate the norm making procedure.

c) may limit the content for the valid norms.

Therefore, the entire legal system present the appearance of what professor Kelsen has called a
hierarchy or pyramid of norms. The process of obtaining the successive level of norm from the
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basic norm is called the concretisation of legal system. Kelsen has termed this entire hierarchy or
pyramid of norms as legal order.

C. Norms as depsychologised command.

The theory of Austin and Kelsen don tot run directly parallel to each other at some point or other
they meet. Just like Austin, Kelsen believed that the element of coercion is necessary for the
essence of lawless. If there is no element of coercion the law will not be followed in the society. But
Kelsen was not completely satisfied with the concept of Austin.

Austin seemed to regard sanction as operating through the subject fear or evil. However, for Kelsen
it was sufficient is there is sanction provided with the legal norm. He did not regarded the influence
of sanction as relevant. All what required according to Kelsen is that the law must express what
ought to be done and should impose a sanction as a condition of that law not being followed. He
said that norm is a hypothetical judgement in which disobedience to the conduct prescribed is the
condition of the sanction.

The difference between the two jurist in this regard seems to emerge from the difference between
Austin theory of law as a command of sovereign and Kelsen pure theory of law and concept of
impersonal hypothetical judgement. Here , Kelsen has deeply criticised the Austin theory of
command and said that this theory has unnecessary introduced an element of will into the concept
of law. 5

Kelsen argues that a law may be valid even after all the will of the people who passed the law have
perished with time. Also the minority who have not connected to the law and has votes against it
scarcely by said to will it but there presence is important for the bill to become law.

Kelsen says that in a legal norm there is an ought proposition with a sanction attached to it,
regardless of will or motive either of those who issue it or those who receive it. It is a
depshchologised command.6

D. Concept of duty, liability and right

The notion of duty is implicit in the very concept of norm. A duty is merely a norm looked at from
the standpoint of the person to whom it is directed. At this point a difference emerges in the concept
of Austin and Kelsen simply because of the fact that Austin limits his scope of his legal study to
mature legal system, whereas Kelsen takes all law to his province.

5
Paulson, S., 2002, Introduction to Kelsen’s Introduction to the Problems of Legal Theory, p. xvii, Oxford:
Clarendon Press.
6
Hugh McCarthy, Summary of Hans Kelsen’s ‘Pure Theory of Law’
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In Austin concept of law, duty and sanction goes hand in hand and inhere in the same person. If X
has a duty to do a work, and he disobey his duty, he would face the liability. But in the Kelsen Pure
theory of law, he points out that this inherence in same person is not necessary. It can be that a duty
is imposed upon A and in case of default the liability would fall upon B.

It is well know about the concept of duty and sanction followed in the primitive times, and the after
effect still persists in the society. Kelsen instances the law of primitive society where it is common
to find collective responsibility of the whole blood group for the act of one single member in the
society. The best example of this would be international law. A similar example can be seen in the
day to day life, for an act of a single child, the whole class is punished.

This concept of right and duty may be violation of natural justice. A child is still punished for the
wrong of his father. Here, Kelsen is not advocating this division, he does not calls it fair or just. He
is merely saying that in his conception of law, such division is possible. 7

E. Concretisation of the system of norm.

Kelsen regards the theory of Austin as a static theory of law. Austin on the other hand has regard
law as a system of rules complete and ready for application without regard to the process of their
creation. According to Kelsen the static law must be supplemented by the study of its dynamism.
This is necessary because law unlike other system of norms regulates its own creation.

We have already seen how the basic norm and the intermediary norm determine the norm inferior to
them by designating their source, stipulating their procedure and delimiting their conduct. 8

The basic norm may give validity to the popular custom, administrative law and judge mad law.
The Grundnorm is the basic norm. It may give the power to the judicial precedents and thereafter
all the judicial order or judgement will be valid law.

For example; if X and Y have made a contract and thus become party to the contract, then both And
Y are bound to carry o the terms of the contract. If Y refuses to carry on the terms of the contract
then in such as case judge ought to condemn y in damages and costs. If Y does not pays the
damages then in such as case the sherif ought to levy execution on X request.

The concatenation of norm proceeds down to the most specific details in the individual case, until
either the latest norm is fulfilled or until the law provided by the law are exhausted.

7
1979, ‘Kelsen’s Theory of the Basic Norm ’in Raz, The Authority of Law, Oxford: Oxford University Press.
8
V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company.
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F. Contract as concretisation of norm
Contract has been regarded as an excellent example of private law as opposed to public law.
However, Kelsen’s logically theory looks at the contract as no different than this of constitutional or
criminal law. 9 He says that contract is merely a norm and no different in legal nature than others.

The contract becomes binding just because some anterior norm and and eventually the Grundnorm
gives validity to the the contracting parties to make and create norm as mentioned in the terms of
the contract. The teams of the contract is binding not only because it is enforceable by laws of
contract, the law of law itself derives its validity from the superior norm and the basic Grundnorm.

Just as an administrator’s delegated legislation acquires the legal force only from the basic norm
and not from the the autonomous will of the administrator, so the individuals power to contract is
merely a delegation of legislative power.10

G. Private law and Public law are same

Both the private and public law derive derive their legal quality equally from the Grundnorm. If
there were no public interest in private law, the society would not have taken the trouble either to
enforce or regulate. Thereby, both serves the public interest.

Furthermore, both of them work over the legal personality, therefore it is not in question whether it
is citizen vs private or private vs private. All of them have some nature for the operation of law.

H. State, sovereignty and legal order

No sovereign person

For pure science of law there can be no supreme legal person. All legal persons are merely creation
of the hierarchy of norms. All derive their power ultimately from the Grundnorm. All the members
of the state are subject to the law.

I. Legal Personality.
As legal duties and legal rights are the derivative product of a legal norm. Therefore, Kelsen
considers legal personality to be an artificial entity, which is a bundle of legal right and duties

9
Freeman, The Purity of Pure Theory ( 1981) 327.
10
Tejas Vasani, Kelsen’s Pure Theory of Law & HLA Hart’s Theory, Legal Bites.
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which operate at a given point. It is not needed for it to be physical or human. It can be a human,
body corporate or other jurist person.11

5. Criticism

There are certain limitations attached to the Kelsen pure theory of law. The pure theory of law is in
one way or the highly dependent upon the Grundnorm. The Grundnorm acts as the basic skeleton to
the law of pure theory. The law would reflect the essence of Grundnorm in its legal structure. The
main contention which arises is what would happen if the Grundnorm is itself impure. The answer
to this would be if the Grundnorm is itself impure then all the norms derived from it will also be
impure.

Kelsen has ignored the fact that Grundnorm is an outcome of the combination of various social and
political factors and facts of the times. It makes the Grundnorm impure. Therefore, all the norms
derived from that Grundnorm would also be impure. 12

It is also said that Kelsen has ignored the sociological, ethno-political elements. It is not possible to
divest law from the influence of political ideology and social needs.

11
Hans Kelsen, 'The Pure Theory of Law - Its Methods and Fundamental Concepts' [1934] 4(474), Law
Quarterly Review.
12
W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).
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 6. Conclusion

Hans Kelsen, was one of the most influential legal philosophers of the last century. He has
contributed immensely in answering the fundamental questions of law. The theory given by Hans
Kelsen is far more better than Austin in terms of its applicability in modern legal system. He has
truly explained by the means of his ‘pure theory of law’ the exact replica of the modern legal
system.

In modern society, every law which is mad is subject to the Grundnorm or the constitution. If it is
inconsistent with the constitution, it would be declared invalid. And the same applies to the every
law and act made. Even the contract we make on day to day basis, that is also valid because a
superior norm i.e. Indian contract act gives the validity to it. That Indian contract act is only valid
because the anterior norm or finally the Grundnorm which is the constitution of India give validity
to it. Thus, it can be Sais that the Kelsen’s ‘Pure theory of law’ is consistent with the modern legal
system.

Another aspect in Kelsen’s theory is that the whole system is well connected with each other in the
form of a hierarchy of norms, and there is a Grundnorm which stands at the top of this heirarchy,
which is of the highest order, and the validity of this grundnorm is to be ‘supposed’. This is a
reflection of the modern legal system. Kelsen has truly raised some of the points which is well
practiced even in modern times.

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 Bibliography

Books:

1. Atchuthen Pilla , Jurisprudence and legal theory, National University of Simgapoor (3rd
edition).

2. V.D.Mahajan, Jurisprudence and legal theory (5th edition), Eastern Book Company, 2016.

3. Dr. S.R. Myneni, Jurisprudence legal theory (2nd edition), Asia law house, 2004.

Website:

1. https://plato.stanford.edu/entries/lawphil-theory/

2. https://hughmccarthylawscienceasc.wordpress.com/2014/12/08/test-post/

3. https://www.researchgate.net/publication/291156734_Hans_Kelsen's_Pure_Theory_of_Law
_Legality_and_Legitimacy

4. https://www.academia.edu/10026094/Kelsens_Pure_Theory_of_Law

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