JURISPRUDENCE PROJECT

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PATIALA, PUNJAB

JURISPRUDENCE PROJECT

3rd SEMESTER

KELSEN’S PURE THEORY OF LAW & ITS

CONTRIBUTION IN MODERN JURISPRUDENCE

SUPERVISOR: SUBMITTED BY:

MR. SACHIN SHARMA NAME: AMOGH GUPTA

(ASSISTANT PROFESSOR OF LAW) ROLL NO.: 20129

GROUP NUMBER: 18

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TABLE OF CONTENTS

 KELSEN’S PURE THEORY OF LAW…………………………………..….3

o ABSTRACT………………………………………………….………….3
o RESEARCH QUESTIONS…………………………………...……......3
o HYPOTHESIS…………………………………………………..………3
o THE RESEARCH METHODOLOGY APPLIED…………….……..3
 INTRODUCTION…………………………………………………………….4
 THE BASIC NORM………………………………………….……………..5-6
 RELATIVISM AND REDUCTION…………………….………………….7-8
 THE NORMATIVITY OF LAW……………………...………………….9-10
 CRITICAL ANALYSIS…………………………………………...…………11
 APPLICATION OF KELSEN THEORY IN THE INDIAN
SCENARIO……………………………………………….……………….12-13
o INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF
LAW…………………………………………………...……………….13
 CRITICISM…………………………………………………………………..14
 CONCLUSION………………………………………...………………….15-16
 BIBLIOGRAPHY…………………………………………………………….17

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KELSEN’S PURE THEORY OF LAW

ABSTRACT
The 'pure theory of law,' developed by Hans Kelsen, is a positivist theory that has had a huge
impact on jurisprudence. This essay begins by laying out the epistemological foundations for the
pure theory of law' cognition,' or how law is experienced and recognized. The concept of a legal
system as consisting of norms, including a foundational basic norm or 'Grundnorm,' is next
articulated by Kelsen. Kelsen's conception of the state, the judicial process, and administrative
decision-making are all covered. Finally, several common pure theory critiques are examined
and evaluated.

RESEARCH QUESTIONS
 What is Kelsen’s Pure Theory of Law?
 What is the contribution of Kelsen’s pure theory of Law in Modern Jurisprudence?
 What is the application of Kelsen theory in the Indian scenario?
 What are the Criticism of Kelsen’s Pure Theory of Law?
 How can we relate the concept of Grundnorm to modern legal system?

HYPOTHESIS
The author's idea prior to starting the project was that pure theory of law is only applicable in
certain circumstances; however this was proven to be incorrect because its scope is broad and not
limited to specific venues.

THE RESEARCH METHODOLOGY APPLIED

Though the research methodology primarily relied on primary data in the form of a plethora of
research papers, journal articles, newspaper articles, online blogs and books, pre-existing
legislations, and so on, it also drew on a few authoritative resources by citing governmental
reports and statistics on the topic at hand, both domestic and international, and referring to them
throughout the project.

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INTRODUCTION
Hans Kelsen (1881–1973), a powerful Austrian jurist and philosopher, proposed the idea of a
Pure Theory of Law. At the turn of the twentieth century, Kelsen began his long career as a legal
thinker. Traditional legal philosophies were hopelessly tainted, according to Kelsen, with
political ideology and moralizing on the one hand, and attempts to reduce the law to natural or
social sciences on the other. Both of these reductionist initiatives were proven to be substantially
defective by him. Instead, Kelsen proposed a 'pure' philosophy of law that avoided all forms of
reductionism.

Kelsen said his theory "defines itself as a 'pure' theory of law since it aims at cognition focused
solely on the law," and that this purity is its "fundamental methodological principle." He went
into detail about the purity of it.1

It aims to keep all non-positive law aspects out of the cognition of positive law. The boundaries
of this subject and its understanding must be clearly defined in two directions: on the one hand,
the specific science of law, commonly referred to as jurisprudence, must be distinguished from
the philosophy of justice, and on the other, from sociology, or the cognition of social reality. 3
The philosophy of justice should be differentiated from the pure theory of law. While legal
theory is a science, justice is an "irrational ideal and a judgment of value, determined by
emotional factors and therefore subjective in character."

1
Kelsen’s Pure Theory of Law – Objectives, Essential And Criticism, By Law Corner, Available
at: https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-criticism/#Criticism
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THE BASIC NORM

According to Kelsen, the key issue for a theory of law is to explain legality and normativity
without attempting to reduce jurisprudence, or "legal science," to other domains. According to
Kelsen, the law is essentially a scheme of interpretation. Its truth, or objectivity, exists in the
realm of meaning; we give particular actions and events in the world a legal-normative meaning.

Consider the case when the Rajasthan State legislature passes a new law. What is the procedure?
Presumably, a group of individuals assemble in Legislative assembly, argue the matter,
eventually raise their hands in response to a query about whether they approve or disapprove of a
particular document, count the number of people who say "yes," and then propagate a string of
words, etc. Obviously, the actions and events detailed here do not constitute the law. To state that
the depiction is of the enactment of a new legislation is to apply a certain interpretation to these
actions and events. But, of course, the question remains as to why some acts or circumstances
have legal significance while others do not.

Kelsen's solution to this question is surprisingly straightforward: a legal-normative meaning is

conferred on an act or an event by another legal rule. If it is established in conformity with
another, "higher" legal norm that enables its establishment in this manner, an act can create or
change the law. The "higher" legal norm, in turn, is legally valid if and only if it was enacted in
accordance with yet another, "higher" legal norm.

In other words, the Rajasthan legislature has the authority to enact certain types of laws under
Indian law. What, though, makes this the law? The Indian Constitution gives state legislatures
the authority to pass legislation within specific content and jurisdictional limits. But what gives
Rajasthan's state legislation their legal standing? The legal legitimacy of state laws is derived
from a constitutional permission granted by the Indian Constitution. What is the legal basis for
the Indian Constitution? Certainly not the Indian Constitution's declaration that it is "the ultimate
law of the land”. That can be stated in any document, but only the Indian Constitutive Document
can do so.

The issue is that the authorization chain comes to an end at this point. The Indian Constitution
was enacted because there is no higher legal standard that justifies it. Kelsen famously stated that

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at this moment, one must presume the Constitution's legal validity. Every legal system eventually
comes to an authorizing norm that has not been approved by any other legal norm, and as a
result, it must be presumptively legal. Kelsen refers to the basic norm as the normative content of
this presupposition. The content of the (original, historical) formulation of the relevant legal
system's presumption of legal validity is the basic rule.

Kelsen observed that “the actions and events that constitute, say, the enactment of a law, are all
within the sphere of what “is” the case, they are all within the sphere of actions and events that
take place in the world. The law, or legal norms, is within the sphere of “ought to”, they are
norms that purport to guide conduct. Thus, to get an “ought” type of conclusion from a set of
“is” premises, one must point to “ought to” premise in the background, an “ought to” that
confers the normative meaning on the relevant type of “is”. Since the actual, legal, chain of
validity comes to an end, we inevitably reach a point where the “ought” has to be
presupposed, and this is the presupposition of the basic norm.”

In Kelsen's theory of law, the concept of the basic norm has three theoretical functions: The first
is to provide a foundation for a non-reductive account of legal validity. The second purpose is to
provide a foundation for a non-reductive explanation of legal normativity. The third function is
to describe how legal rules are organised. These three concerns are inextricably linked.2

2
Patterson, Edwin W. “Hans Kelsen and His Pure Theory of Law.” California Law Review, vol.
40, no. 1, California Law Review, Inc., 1952, pp. 5–11,

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 RELATIVISM AND REDUCTION

Common wisdom has it that Kelsen’s argument for the presupposition of the basic norm takes
the form of a Kantian transcendental argument. The structure is as follows:

1. P is possible only if Q

2. P is possible (or, possibly P)

3. Therefore, Q.

In Kelsen's reasoning, P denotes the fact that legal norms are "ought" assertions, and Q denotes
the basic norm's premise. To put it another way, the basic norm's required presupposition is
derived from the possible conditions for assigning legal meaning to actions and events. It is
important to prove that the relevant legal significance of the act/event is conferred on it by some
other legal standard in order to construe it as one of making or changing the law. As previously
said, we must eventually run out of legal standards that confer relevant validity on law-making
activities, and at that point, legal validity must be assumed. The content of this presupposition is
the basic norm.

A analogy to religion, which Kelsen himself made, could be useful in this case. Religion has a
normative structure that is quite similar to that of law. It follows the same logic: religious views
about what one should do stem from one's faith in God's directives. God's commands, on the
other hand, would only have normative validity for those who accept their individual religion's
basic norm, namely, that one should obey God's commands. As a result, religion's normativity,
like that of the law, is predicated on the assumption of a fundamental norm.

Relativism, however, has a cost. Consider the following question: What is the content of the
basic norm that must be assumed in order for positive law to be comprehensible as a normative
legal regime? The basic response is that what is assumed here is the normative validity of
positive law, i.e. the rule that is actually followed by a certain population. As we mentioned
briefly previously, the basic norm's validity is dependant on its "efficacy." The actual practises
that prevail in the relevant community establish the content of any particular legal system's core
norm. A successful revolution, as Kelsen himself has argued, results in a profound change in the

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content of the basic norm. Assume, for example, that the primary legal norm in a particular legal
system is that the constitution established by Rex One is binding. A coup d'etat occurs at some
time, and a republican government is successfully installed. 'One presupposes a new basic norm,
not the basic norm giving lawmaking authority to the monarch, but a basic norm delegating
authority to the revolutionary government,' Kelsen admits at this point.

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THE NORMATIVITY OF LAW

Let us now look at how Kelsen believed the basic norm contributes to explaining why law is a
normative domain and what this normativity entails. The first and most important thing to
understand is that for Kelsen, normativity is a genuine "ought"; it is a justifiable demand on
practical deliberation. An agent perceives a piece of material as normative if and only if the
agent considers it to be a valid cause for action.

In this regard, Kelsen agrees with the Natural Law tradition; both believe that the normativity of
law can only be justified in the same way that the normativity of morality, or religion for that
matter, can be explained: in terms of good reasons for action. However, Kelsen's challenge is
explaining the distinction between the normativity of law and that of morality; if legal "ought" is
a true "want," what distinguishes a legal duty from a moral one? According to Kelsen, the
relevant "ought" is always linked to a certain point of view. Every sort of "ought," whether
religious, moral, or legal, must start with a certain point of view, a point of view that is
constituted by the basic norm of the relevant normative system.

To put it another way, Kelsen's definition of legal normativity turns out to be a sort of Natural
Law that has been entirely relativized to a certain point of view. However, in Kelsen's theory, the
crucial point of view is clearly a legal one, rather than some broad notion of morality or Reason.
Kelsen's reply beautifully demonstrates how these two basic conventions, or points of view,
might come apart. Kelsen commented “even an anarchist, if he were a professor of law, could
describe positive law as a system of valid norms, without having to approve of this law”. The
anarchist does not agree with the legal viewpoint since it contradicts her own beliefs about what
is right and wrong.

Anarchism is defined here as a rejection of law's normative validity; however, even an anarchist
can make an argument about what the law requires in this or that context; and when she does, she
must presuppose the legal point of view, arguing as if she endorses the relevant legal system's
basic norm. These remarks are referred to as "detached normative assertions" by Joseph Raz,
because the anarchist argues as if she endorses the basic norm without actually accepting it.3

3
Pure Theory of Law by HANS KELSEN, Available at: lawnotes4u.in/pure-theory-of-law-by-hans-kelsen-
jurisprudence/

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So far, it appears that the concept of normativity, defined as the relationship between normative
content and reasons for action, is consistent across all normative domains. To think of anything
as normative is to think of it as justified, as a justifiable constraint on practical deliberation. The
difference, on the other hand, is in the points of view. Each fundamental standard determines, in
a sense, a particular point of view. So it turns out that normativity is always based on conditional
imperatives: if, and only if, one adopts a certain normative point of view, as specified by its basic
norm, then the norms that follow are, in a sense, reason-giving.4

4
Bergmann, Gustav, and Lewis Zerby.“The Formalism in Kelsen’s Pure Theory of Law.”Ethics, vol. 55, no. 2,
University of Chicago Press, 1945, pp. 110–30, http://www.jstor.org/stable/2989025.

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CRITICAL ANALYSIS
According to Kelsen's idea, Grunderm is the constitutional concept that should be followed.
Because a country's constitution is a sociological and political document, Grundnorm is not
perfect.

Kelsen also stated that the law should be free of morality and ethics. A broad question should be
asked here: is it feasible to keep the law free of ethics and morality? Kelsen insisted on the law's
usefulness, and as a result, he embraced ethics as an element of that effectiveness.

Kelsey wanted to transform the law into a science, a logic-based theory, but on the other hand, he
highlighted the legitimacy of the Grundnorm as "assumed," rather than based on logic. Kelsen
attempted to locate the law and legal norms somewhere in the midst of absolute ethical principles
and social facts. As a result, rejecting the significance of the ethics idea renders legal science
barren and useless, as well as rejecting the factual nature of law, which separates it from reality?

Key Features of Kelsen’s Pure Theory

 Law as Science: Kelsen intended to propose a theory that could be used to change the law
in science, a theory that could be comprehended by logic.
 As a positive law: Kelsen introduces his pure theory of law as a theory of positive theory
in the first paragraph. Kelson then presents this idea of positive law as a hierarchy of laws
that begins with one basic norm, i.e. Grundnorm ', and all additional norms are related to
each other either as lower norms or as superior norms.
 Law "as it is": Kelsen underlined that analysis should concentrate on the law "as it is,"
not "as it should be."
 Law and morality: Kelsen's pure theory of law includes a strict separation of law and
morality.
 Legal theory should be consistent: According to Kalsen, legal theory should be consistent
at all times and in all places.
 Law's Static Aspect: Kelsey distinguished between the static and dynamic theories of
law. The static theory of law depicted the law as a hierarchy of laws, with particular laws
ranked as either inferior or superior to one another.

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APPLICATION OF KELSEN THEORY IN THE INDIAN

SCENARIO
The Indians have their own way of thinking. However, if we examine closely, we may see that
the Kelsen theory is present in Indian society, such as "Dharma."5

Dharma is a set of everyday routine rules. It specifies a set of behaviours for managing human
civilization. We can say that Dharma is the fundamental norm, and that all other norms emerge
from it.

Kelsen's Pure Theory is applied to the ancient Indian legal system as well as the British Indian
legal system, revealing the essential differences between the two legal systems. In the latter
situation, the suggested rule is that we should obey the viceroy or governor-general, who was not
receptive to Indian moral or cultural norms and ethos, as well as public opinion. The existence of
such a norm renders the entire system Austinian, allowing even the sovereign's whims to become
law.

INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW

In the case of A.K. Gopalan vs. State of Madra6s, the Supreme Court of India defined the phrase
"the procedure established by law" in Article 21 of the Indian Constitution as any substantive or
procedural provision of the law. However, in Maneka Gandhi vs Union of India 7, the Supreme
Court of India adopted an interpretation that incorporated a concept of fairness, justice, and
reasonableness into Article 218 of the Indian Constitution, which was not there in the wording of
the article. The meaning of fair, just, and reasonable" varies from person to person and is a
reflection of an individual's ideology, which consideration if brought to bear on the test of
constitutional validity of a particular statute liable to be struck down if it is not in accordance
with the judge's mental conception.

5
Means Righteousness (Dharma) is that which sustains the people or that which is adopted by meritorious souls.
6
A.K. Gopalan vs. State of Madras, 1950 S.C.R. 525
7
Maneka Gandhi v/s Union of India, 1978 A.I.R. 597.
8
Article 21.Protection of life and personal liberty.-No person shall be deprived of his life or person liberty except
according to procedure established by law

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While the A.K. Gopalan case gave the lawmaker unrestricted power, the Kesavanda Bharati case
established the doctrine of basic structure, which states that the term "amendment" in Article 368
of the Indian Constitution means addition or change within the contours of the preamble or the
constitution, but not replacement of the constitution or its basic foundation and structure.

In Kesavananda Bharati, Kelsen's Pure Theory gives the concept of judgement, and the Grund
Norm can only be replaced by revolutionary techniques. Like Austin's Sovereign, the basic
structure is unamenable, boundless, and indivisible. The premise of Kelsen's Grund Norm can be
changed.

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CRITICISM
 Grundnorm is a hazy and ambiguous concept. This term was used by Kelsen to describe
the fundamental norm, order, or rule that underpins a legal system. However, this
"fundamental standard" is frequently described as hypothetical.
 Kelsen also stated that the law should be morally neutral. Is it feasible to have a law that
is morally devoid? Kelsen insisted on the law's usefulness, and as a result, he embraced
morality as an element of that effectiveness.
 Kelsen wanted to transform the law into a science, a theory that could be comprehended
through logic, but on the other hand, he highlighted the grundnorm's validity as
"assumed," rather than "logic."
 Where does the legitimacy of grundnorm come from?
 Kelsen's pure theory lacks any sociological grounding because it ignores all social facts
and requirements.

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CONCLUSION
The researcher has already accepted the contribution of the juristic works of Kelsen. Hans
Kelsen made a significant contribution to solving certain basic legal concerns. There are mainly
three aspects of Kelsen’s Pure Theory about the law.

 The first feature of Kelsen's pure theory is that legal theories should only be relevant to
legal issues. Other social sciences and morals are left out. Kelsen's Pure Theory of Law
was named after his belief that law should be in its purest form.
 The second feature of Kelsen's pure theory is that the entire legal system is a hierarchy of
norms, with the fundamental norm, also known as the Grundnorm, at the top of the
hierarchy and all other norms checking its validity against it. Any norm that is in conflict
with or opposed to the basic norm should be considered invalid. He also stated that the
validity of Grundnorm cannot be questioned.
 The third feature of Kelsen's pure theory is that law norms are distinct from those found
in other sciences; law is a normative science. He distinguishes between moral and legal
standards. He is a member of the Analytical school of law, but he criticises Austin's
command theory.

Some critics argue that Kelsen's thesis is flawed since the efficiency of the Grund rules is also
influenced by sociological and political issues.The Grund norm, according to Kelsen, is based on
the assumption that the constitution should be followed. The researcher believes that a country's
constitution is a political text, and hence the Grund rule is not pure.

Kelsen also argued that the law should be devoid of morals. Is it feasible to preserve law free of
morality? is a general question that should be explored here. Kelsen placed a strong focus on the
effectiveness of the law, inadvertently accepting morality as a component of effectiveness. He
also stated that if "X" occurs, "Y" should likewise occur, implying that he backed the value of
"X."

One of the major flaws in Kelsen's hypothesis is that he did not undertake any kind of efficacy
measurement. Under the concept of effectiveness, there is no dividing line. Kelsen didn't

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distinguish between effectiveness that makes individuals obligated to obey and effectiveness that
makes people obligated to obey.

According to Kelsen's thesis, the state resembles a collection of human behaviours and social
compulsions. However, in fact, a state is defined by its territory, independent administration,
population, and ability to interact with other states, which he overlooked. He attempted to
convey the idea that the state and legal orders are the same, but that not all legal orders are states,
such as those seen in primitive societies. If there are conflicting possibilities, the pure theory
demands that a Grund norm be discovered; if there is no help in choosing between them, the pure
theory demands that a Grund norm be discovered.

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BIBLIOGRAPHY

 WEBSITES
 Kelsen’s Pure Theory of Law – Objectives, Essential And Criticism, By Law Corner,
Available at: https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-
criticism/#Criticism
 Pure Theory of Law by HANS KELSEN, Available at: lawnotes4u.in/pure-theory-of-
law-by-hans-kelsen-jurisprudence/
 Murphy, Tim, Hans Kelsen's Pure Theory of Law (2004). T. Murphy (ed.), Western
Jurisprudence (Dublin, Thomson Round Hall, 2004), pp. 251–268, Available at
SSRN: https://ssrn.com/abstract=2616604
 Bergmann, Gustav, and Lewis Zerby.“The Formalism in Kelsen’s Pure Theory of
Law.”Ethics, vol. 55, no. 2, University of Chicago Press, 1945, pp. 110–30,
http://www.jstor.org/stable/2989025.
 Patterson, Edwin W. “Hans Kelsen and His Pure Theory of Law.” California Law
Review, vol. 40, no. 1, California Law Review, Inc., 1952, pp. 5–11,
 AN ANALYSIS OF THE KELSON’S THEORY OF LAW, Sk Jahangir Ali, Assistant
Professor, Balurghat Law College,P.O-Amritakhando Hat,Dist-D/Dinajpur, Available at:
https://deliverypdf.ssrn.com/delivery.php?
ID=04809811911009600707401102609710009501900706405904808711209210609412
607308112008508612006204400600609606212710112608002509411105908509008908
807111210201709607706400803901505111212510101009212111710008400312501311
2004003113101116124109095101082082006068&EXT=pdf&INDEX=TRUE

 CASE LAWS

 A.K. Gopalan vs. State of Madras, 1950 S.C.R. 525

 Maneka Gandhi v/s Union of India, 1978 A.I.R. 597.

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