MIDTERM PROJECT- JURISPRUDENCE I

TOPIC- CRITICAL ANALYSIS OF THE PURE THEORY OF LAW

Submitted to:
Dr. Shyam Krishan Kaushik,
Assistant Dean,
Faculty of Law,
National Law University, Jodhpur.
Submitted by:
Mansi Tiwari,
Roll No.- 1795,
B.A. LL.B. (Hons.),
Semester III,
NLUJ- 2024.
 INTRODUCTION

Hans Kelsen, is as JW Harris calls him, was the “most internationally famous legal
philosopher of the 20th century”, one of whose celebrated theoretical constructs was the
‘basic norm.’1 Hans Kelsen’s Pure Theory of Law is the magnum opus of his works. His
theory was a distinct and new approach on law and normativity. Not only has he written on
every aspect of jurisprudence, but also in the field of political philosophy he has published
several books of exceptional merit2. In his Pure Theory of Law, Kelsen tries to sever law
from the concepts of fact and morality.

He offers a grammar and a vocabulary that helps us identify some legal concepts and
problems as essential and to dismiss others as alien to the main tasks of legal scholarship. His
Pure Theory is a theory of positive law. In his words, the “positivity” of law, “lies in the fact
that it is created and annulled by acts of human beings, thus being independent of morality
and similar norm systems. This constitutes the difference between positive law and natural
law, which, like morality, is deduced from a presumably self-evident basic norm which is
considered to be the expression of the “will of nature” or of “pure reason.”3Kelsen does not
judge his concept of law at the touchstone of morality and defines his law as an Ought
proposition and discusses the idea of a grundnorm in detail in his theory.

Kelsen’s work, seems to transcend the limits of time for even almost a century after his work
was first published, it continues to intrigue scholars and remains to be one of the most
significant works in the field of jurisprudence. In this project, I will attempt to critically
analyse the Pure Theory of Law.

1
J. W. Harris, The Basic Norm and the Basic Law, 24, HONG KONG L. J., 207 (1994).
2
Id.
3
Hans Kelsen, Professor Stone and the Pure Theory of Law, 17 STAN. L. REV. 1128, 1130 (1965).

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 MAJOR POSTULATES OF THE PURE THEORY OF LAW

Kelsen intends his Pure Theory of Law to serve not as specific criteria but just as a general
account of the nature and function of law. His theory is aimed at being applicable to any
existing legal system. His theory is descriptive and not prescriptive, that is, it attempts to
answer the question what and how the law is, not how it ought to be. He addresses the static
and dynamic aspects of law in his theory and theses are both very significant and important
contributions to legal theory by Kelsen. First, its static conception of law rejects both ethical
and sociological elements in setting out the conditions for valid law.

For Kelsen, law is reducible neither to moral imperatives, nor to empirical observations of
human action. Second, its dynamic conception of law is broader in scope than many rival
philosophies of law. Kelsen traces the entire process through which valid legal rules are
promulgated, from the general provisions of a constitution to specific instances of
adjudication, and seeks to describe the roles played by the various organs of a legal system,
be they administrative, adjudicatory, or legislative.4

The pure theory of law should be distinguished from the philosophy of justice. While the
Pure Theory of Law is a science, justice is an irrational ideal and a judgment of value,
determined by emotional factors and therefore subjective in character.5

1. THE STATIC ASPECT OF LAW

For Kelsen, law in its static dimension consists of norms related to human behavior in the
following way: Certain states of affairs (generally human acts or omissions) are
conditions for the application of coercive sanctions.6 Offenses (or “delicts”) are simply
the human acts or omissions that trigger a prescribed sanction. From Kelsen’s positivistic
perspective, an agent’s act or omission constitutes a legal offense if and only if there
exists a valid norm in that agent’s positive legal order holding that a sanction ought to be
applied to her because of her act or omission. As per Kelsen, the threat of imminent
coercive action is what distinguishes a legal system from other normative systems, for
example, the moral systems. He says that only moral norms may also seek to affect

4
Dhananjai Shivakumar, The Pure Theory as Ideal Type: Defending Kelsen on the basis of Weberian
Methodology, 105, YALE L. J., 1383, 1385 (1996).
5
Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV. 44, 44 (1941),
reprinted in Hans Kelsen, What is justice? (1957).
6
See id. at 44-54, 70, 108-14.

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 human behaviour, but only legal rules have the power to regulate it as it empowers legal
officials to charge penalties or take recourse to coercive action if the behaviour expected
as per the norm is not performed.

Kelsen distinguishes between law and morality by arguing that legal norms are valid only
if their promulgation is authorized by other legal norms, regardless of whether they
cohere or conflict with moral norms. Kelsen’s static theory of law, with its emphasis on
the coercive sanction, reduces the traditional vocabulary of jurists to a common
denominator: In every instance, a norm exists ordering sanctions under certain triggering
conditions.7

2. THE DYNAMIC ASPECT OF LAW

Kelsen’s dynamic theory of law addresses the process by which legal norms are created
and provides a process-oriented account of how these norms attain validity. In conceiving
the validity of norms, it ends with a norm, the basic norm, which is presupposed. The
Pure theory founded the validity of norms by the static and dynamic principles. A system
of norm, whose reason for validity and content is deduced from a norm presupposed as a
basic norm, is a static norm system. The principle according to which the validity of the
norms of this system is founded is a static principle while the basic norm gives only the
reason for the validity, not the content of norms based on it. These norms constitute a
dynamic system of norms. The principle, according to which the validity of the norms of
this system is founded, is a dynamic principle.

Norms stipulating sanctions derive their validity from higher norms that authorize them;
the higher norms in turn derive their validity from still higher norms. This chain of
validation extends until one arrives at the highest norm, the basic norm of a legal system.
This basic norm is the source of the validity of the highest law, the constitution. The
content of the basic norm is simply that one ought to act in accordance with the rules set
out in the constitution of the legal order.8

3. KELSEN’S NEO-KANTIAN APPROACH

A Kantian approach serves as the justification for Kelsen’s abstract structural analysis of
legal systems. Kelsen claims that the pure theory of law approaches its object-valid,
positive legal norms-with the aim of elucidating
7
Supra note 4, at p. 1386.
8
Supra note 5.

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 the necessary conditions of the cognition of that object.9 The science of law to Kelsen is
the knowledge of hierarchy of normative relation. He builds on Kant‟s theory of
knowledge and extends the theoretical knowledge to law also.10 For Kelsen the law
consists of norms: norms cannot be derived from facts, but only from other norms. The
relationship between norms is one of “imputation” not causality.11

Kelsen claims his theory explains how legal phenomena must in fact be interpreted and
organized within a jurist’s mind in order for the jurist to perform the simple feat of
recognizing certain norms as binding laws. This effort broadly parallels Kant’s argument
that categories, such as causality, must be at work in order for the human mind to have
ordinary, ordered perception of sensory data. Kelsen bases the correctness of his model of
legal validity on a kind of transcendental argument. That is, he tries to prove that his
understanding of legal validity is a necessary condition of our ability to recognize valid
laws. In this respect, the basic norm and the structural account of legal systems are both
products of Kelsen’s neo-Kantian approach to legal theory. They follow from the effort to
draw out the necessary conditions for the cognition of binding legal norms or, in Kelsen’s
terms, of norms that are “objectively” valid.12

4. THE ASPECT OF “PURITY”

Kelsen believed that a theory of law must be free from factors like ethics, politics,
sociology and history and must in other words be “pure” (rein). “Uncritically” he said,
“the science of law has been mixed with the elements of psychological, sociology, ethics
and political theory.” He sought to restore the purity of the law by isolating those
components of the work of a lawyer or judge which may be identified as strictly “legal.”13

Kelsen identifies two basic senses in which his approach to law is pure. First, it
distinguishes legal norms from ethical norms, and studies only the former without
reference to the latter. A theory of law that is impure in this respect might, for example,
view legal norms as a subset of ethical norms, or require that rules enacted in accordance
with the procedures given by the constitution also satisfy certain ethical standards in order
to be deemed valid law. The first aspect of purity thus sets Kelsen’s approach apart from
natural law theories. Second, Kelsen insists on an approach that is distinct from
9
Supra note 5, at p. 72.
10
Dr. B.N. Mani Tripathi, Jurisprudence, ALLAHABAD LAW AGENCY (1st ed. 1999), at p. 59.
11
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, SWEET AND MAXWELL LTD. (1994) at p. 272.
12
Supra note 4, at p. 1390.
13
Edgar Bodenheimer, Jurisprudence, UNIVERSAL LAW PUBLISHING CO. LTD, (2004), at p. 101.

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 sociological or psychological analyses of law. In order to separate legal science from
social science, Kelsen claims that one must analyze the essential nature of law without
any reference to public obedience to law or to the psychological determinants of human
actions.14 Kelsen qualifies the purity requirement, however, by claiming that his theory
assumes that the norms of a legal system satisfy “a minimum of effectiveness”.15

14
Supra note 4, at p. 1391.
15
Supra note 5.

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 THE PURE THEORY AS AN IMPROVEMENT OVER THE PREDECESSORS

1. KELSEN AS AN IMPROVEMENT OVER THE WORK OF AUSTIN

Kelsen viewed law as a coercive order of human behaviour. Laws “command a certain
human behaviour by attaching a coercive act to the opposite behaviour.” He disagreed,
however, with the belief of John Austin, who posited laws to be “a species of
commands,”16 since a command “is essentially a willing and its expression,” and because
it is doubtful whether some laws embody the true will of anyone. Many legislators enact
laws without understanding them, let alone willing them. Kelsen preferred to describe
laws as norms or rules “stating that an individual ought to behave in a certain way, but
not asserting that such behaviour is the actual will of anyone.”

Kelsen also disagreed with Austin’s position that laws are enforced by a specific
authority.17 Understanding this to mean that the threat of sanctions commands obedience,
Kelsen noted that fear of sanctions is often not the primary motive for obedience to law. 18
In any event, Kelsen considered the reason why law is obeyed to be “a problem of
sociological, not analytical or normative jurisprudence. The latter can only affirm that
the law sets up coercive measures as sanctions that are to be directed under definite
conditions against definite individuals.”19

We thus see here that Kelsen in his work eliminates the rumoured fictional psychological
element from the definition of law. Laws, as per Kelsen, are not media to forcefully
impose the will of one person on several others by using the fear of sanctions. He says
that law is just a norm that lets people know what behaviour they ought to adhere to or
else would be subjected to a punishment. He says that if there will be no punishment to he
who murders, then the norm of murder not being proper behaviour would not be an ought
proposition, hence won’t be law.

2. KELSEN’S USE OF THE JURISPRUDENTIAL ANTINOMY

Kelsen, along with many others, understands the Western tradition in jurisprudence and
legal philosophy in terms of two basic types of theory-natural law theory, sociological, or

16
J. Austin, Lectures on Jurisprudence, 88 (5th ed. 1885).
17
Id, at p. 89.
18
Supra note 5, at p. 57.
19
Id, at 57-58.

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 ‘positivist’.20 Traditionally, the naturalist and empirico-positivist theories are thought of
as mutually exhaustive and the theories that contend to belong to neither of these two are
ultimately fit into one of these categories. Now Kelsen, too says that his theory belongs to
neither of the above but the traditional scholars could not disprove his claim as they had
for other theories. The jurisprudential antinomy and the strategy that it reflects have an
eighteenth-century counterpart, Kant’s so-called mathematical antinomies in the Critique
of Pure Reason.21

To solve the jurisprudential antinomy that Kelsen finds him in is then solved by him. He
shows that the traditional view cannot be treated as an exhaustive list of categories and
thus he goes on to make way for his Pure Theory of Law. He is then in a position to
introduce his theory as an alternative to the traditional theories. His theory is ‘pure’ as it
is free of the ‘foreign elements’ of both natural law theory and the empirico-positivist
theory; it hinges, in other words, neither on considerations of morality or matters of fact.22

3. KELSEN’S THEORY OVERCOMES THE PROBLEM OF INFINITE REGRESSION IN HART’S

THEORY

As Matthew Kramer, pointed out in his article, The Rule of Misrecognition in the Hart of
Jurisprudence, the work and theory of HLA Hart suffers from the problem of infinite
regression and this problem is very concretely solved by Kelsen in his theory. In Hart’s
Concept of Law, the legal sytematicity is presupposed by the origin of legal systematicity,
making the argument of Hart seeming like a house of mirrors.23

In his work, Hart says that “no question concerning the validity or invalidity of the
generally accepted rule of recognition as distinct from the factual question of its
existence can arise.”24 In Hart’s work we move backward along the direction of
derivation of validity- that is, the primary rule is granted validity by the secondary rule,
and the secondary rule gets its validity from the Rule of Recognition, that is, for example,
the constitution. However, at this point, we cannot go backward to check what grants
validity to the Constitution as hart assumes the validity of the Constitution, which is the
rule of recognition to be given and treats the question of its validity as a question of fact.
20
Stanley L. Paulson, The Neo-Kantian Dimension of Kelsen's Pure Theory of Law, 12(3), OXFORD J. OF LEGAL
STUDIES, 311 (1992), at p. 314.
21
Id. at p. 315.
22
Id. at p. 316.
23
See Matthew Kramer, The Rule of Misrecognition in the Hart of Jurisprudence, 8(3), OXFORD J. OF LEGAL
STUDIES, 401 (1988) at p. 409.
24
H. Hart, The Concept of Law, (1961), at p. 345.

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Thus, after this point no regression can be performed to get to the very first or basic rule
of a legal system that lends validity to the subsequent rules in a system.

Kelsen solves this issue by giving the concept of the basic norm or the Grundnorm in his
work. He says that the root of validity of every legal norm is the basic norm or
Grundnorm. The Grundnorm is the presupposition that the first assembly of usurpers that
grabbed power and made a Constitution, were doing so rightfully. The grundnorm is not a
legal norm; rather, it is a psychological element. Therefore, we see that if regression is
performed on Kelsen’s theory, we can continue moving forward until we reach the basic
norm which is the concrete point where the regression ends in a concrete and non-abrupt
fashion. Thus, we can say that Kelsen’s theory overcomes the problem of infinite
regression in Hart’s work.

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 CRITICISMS OF PURE THEORY OF LAW

1. KELSEN’S NEO-KANTIAN JUSTIFICATION FOR THE PURE THEORY HAS OFTEN BEEN

CRITICISED

Kelsen’s neo-Kantian justification for the pure theory has been largely ignored by his
defenders and sharply attacked by critics. Stanley Paulson has argued convincingly 25 that
Kelsen’s neo-Kantian methodology fails to explain why the pure theory must characterize
legal norms and legal systems in the way it does.26 Paulson argues that Kelsen relies on
the regressive version of Kantian transcendental argument. That is, Kelsen tries to
demonstrate that a certain manner of thinking is the necessary condition of making a
statement of cognition. Applying this method to law, Kelsen asserts that statements
regarding the validity of laws necessarily presuppose Kelsen’s account of validity, with
its pure focus on links of imputation rooted in the basic norm. Such grounding fails,
Paulson argues, because Kelsen does not demonstrate that the only way to understand the
validity of law is through the category of imputation as he presents it.27

Paulson’s demonstration that Kelsen fails to derive his account of imputation and
normative jurisprudence as absolutely necessary in order to account for actual recognition
of valid legal norms leaves Kelsen’s legal positivism without a grounding.28

2. UNCERTAINTY REGARDING THE BASIC NORM

The basic norm is not an enacted norm. It must be ‘presupposed’, Kelsen elaborated in
1960 ‘because it cannot be “posited,” that is to say: created, by an authority whose
competence would have to rest on a still higher norm. This final norm’s validity cannot be
derived from a higher norm, the reason for its validity cannot be questioned.’ 29 Because it
is not an enacted norm, moreover, it ‘cannot be the meaning of an act of will’; rather, ‘it
can only be the meaning of an act of thinking’- the consequences of ‘presuppos[ing] in
our juristic thinking the norm: “One ought to obey the prescriptions of the historically
first constitution”.30 Soon after the appearance of the second edition of the Pure Theory of
Law in 1960, Kelsen began to write very differently about the basic norm. Gone was the
25
Supra note 20, at p. 326.
26
Id, at p. 324.
27
Id, at p. 327.
28
Supra note 4, at p. 1395.
29
Supra note 5.
30
Id.

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 notion of the basic norm as a presupposition essential to the enterprise of conceiving of
law as a science, and in its place was put the distinctly less robust conception of the basic
norm as a ‘fiction’.31 Moreover, it is difficult for the idea of basic norm to survive in the
age of scientific behavioralism. Prof. Laski has stated, “granted its postulates, I believe
the pure theory to be unanswerable, but….its substance is an exercise in logic not in life.”

3. KELSEN DOES NOT MAINTAIN A COMPLETE SEPARATION OF LAWS AND FACTS

In his theory, Kelsen talks about how a new regime brought into existence by a coup can
attain legitimacy, if the attempt of overthrowing the previous regime succeeds. His work
talks about how “the principle of legitimacy is restricted by the principle of effectiveness”.
Here, we see that Kelsen’s theory somehow becomes impure at the Grundnorm level but
below that it is pure at all levels.

Kelsen says that if a new regime overthrows the previous regime and changes the legal
system by modifying only the Constitution. The content of the norms remains the same
but there is a change in Grundnorm. The new leaders will alter the higher norms like the
Constitution and if the people start believing that they are doing so rightfully, then the
presupposition is altered and the Grundnorm changes. He also bases the legitimacy on the
fact that if they officials of the administration, follow the new regime’s norms and
implement them, even then we see that the regime is effective and has attained a
legitimate character.

Now the issue that arises here is that, Kelsen has, at this point, entered the empirico-
positivist theory and at this level, his legal norm is not independent of the factual reality
to be valid. We thus, can see how Kelsen cannot maintain the purity of law at the
Grundnorm level.

31
Stanley L. Paulson, ‘Four Phrase in Hans Kelsen’s Legal Theory? Reflections on a Periodization’, 18,
OXFORD J. OF LEGAL STUDIES, 161 (1998).

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 CONCLUSION

Hans Kelsen is one of the most acclaimed jurisprudential authors and is a popular scholar of
the Positivist School of thought. His Pure Theory of Law seeks to lend a whole new
perspective to the positivist definition of law. He tries to free law from the chains of factors
like observable causal and sociological criteria. Kelsen’s pure theory of law relies, for the
purposes of identifying law, neither on moral criteria (in contrast to natural law theories), nor
on the empirically observable attributes of judicial decision-making or social rule-following
(approaches to defining law championed by American legal realism). 32 He also attempts to
overcome the defects in Austin’s Command-Duty Model and the irregularities in Hart’s
theory of rules, especially the rule of recognition. In his work, Kelsen does not judge the law
character of a norm based on the content, as a true positivist, he values procedure and
correctness of the authority making the law more than the content of the law.

However, as is the norm, even his theory is not completely accurate or applicable to the legal
systems of the world and there have been criticisms levelled against Kelsen’s ideas too. The
fact that a law is valid under Kelsen’s definition implies absolutely nothing about whether it
is fair; Kelsen’s model leaves such evaluations to one’s personal conscience in every case. By
remaining pure, Kelsen’s definition of law does not permit any confusion between legal
validity and such considerations as justice or fairness, and as a result every valid law may still
be questioned on such grounds.

Even if one does not share those values that can support the emphases of Kelsen’s pure
theory, it is clear that Kelsen’s elegant work in his Pure Theory of Law will continue to be his
magnum opus.

32
John Henry Schlegel, American Legal Realism and Empirical Social Science, 23-261 (1995).

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