Hans Kelsen (October 11, 1881 – April 19, 1973) was an Austrian-American jurist, legal

philosopher, teacher, and writer on international law, who formulated the “pure theory” of
law. Because of his family's Jewish origins, he was obliged to disrupt his career several times
and move from country to country, but this enabled him to influence and associate with
legal scholars from all over the world. As a professor of law in Vienna, he published several
works on public law. In 1919, Kelsen was asked to write the constitution, which the Austrian
Republic subsequently adopted in 1920, and he served on the Austrian Constitutional Court
until he lost his seat for political reasons. He then went to Cologne, where he taught and
wrote about international law until the Nazi occupation forced his family to move to
Switzerland. In 1940, they immigrated to the United States, where he taught until 1952, and
served as legal adviser to the United Nations War Crimes Commission. His The Law of the
United Nations, a nine-hundred-page study on the Security Council, was reprinted several
times.
Kelsen wrote almost four hundred works on legal philosophy. He rejected natural law theory
in Allgemeine Staatslehre (General Theory of Law and State; 1925) and Reine Rechtslehre
(Introduction to the Problems of Legal Theory; 1934). Kelsen's own view, most fully
developed in the posthumous Allgemeine Theorie der Normen (General Theory of Norms;
1975), traced the legitimacy of legal legislation back to a fundamental "ground rule"
(German, Grundnorm) whose universal status is independent of morality. Kelsen's "pure
theory" was a Kantian interpretation of legal positivism. The theory of Hans Kelsen remains
an essential point of reference in the world of legal thought. He wrote many books : -

 The pure theory of law

 What is Justice
 Principles of International Law

Kelsen’s conception of law

Kelsen describes the law as a normative science distinguishing it from natural science. The
basic character of the science of law is the knowledge of what ” ought to be ” as opposed to
the nature of normative sciences which are capable of being determined and discovered.
Hence, according to Kelsen, the science of law is positive law and not an ideal law. The
concept of ‘ ought ‘ in Kelsen’s theory also distinguishes legal norms from social norms. The
‘ought’ in the legal norm refers to the sanction to be applied for violation of the law.

The Grundnorm
Kelsen was of the view that legal norms come in systems like a pyramid. Kelsen termed the
pyramid structure of reality of norms deriving their validity from the basic norms as the
Grundnorm. Grundnorm, according to Kelsen, is the basic or Apex norm that gives validity to
the other norms. With the concept of grundnorm, it was implied that one rule can be
derived from another rule and one law can be derived from another law. Grundnorm is
described as an exception independent of any other norm which gives validity from the
rules derived from it. The process of the subordinate norms deriving their powers from the
norms immediately superior to it, finally seizing at the grundnorm was termed as
concretization.
For instance, alert derives its authority and validity from the legislative body, and the
legislative body, in turn, derives its authority from the constitution. The constitution is the
grand norm according to Kelsen’s theory of pure law.

Salient features of Kelsen’s pure theory of law-

The assumptions on which the theory of law was propounded by Kelsen were-
(1) the theory is aimed at reducing the confusion and chaos that rises due to the natural law
philosophy.
(2) theory of law deals with the knowledge of what is and not what ought to be
(3) the theory considers law as a normative science distinguishing it from natural science.
(4) Kelsen’s theory is the theory of norms and is less concerned with the effectiveness of the
legal norms.
(5) it is confined to the system of positive law.

Kelsen’s conception of law

Kelsen describes the law as a normative science distinguishing it from natural science. The
basic character of the science of law is the knowledge of what ” ought to be ” as opposed to
the nature of normative sciences which are capable of being determined and discovered.
Hence, according to Kelsen, the science of law is positive law and not an ideal law. The
concept of ‘ ought ‘ in Kelsen’s theory also distinguishes legal norms from social norms. The
‘ought’ in the legal norm refers to the sanction to be applied for violation of the law.

The Grundnorm
Kelsen was of the view that legal norms come in systems like a pyramid. Kelsen termed the
pyramid structure of reality of norms deriving their validity from the basic norms as the
Grundnorm. Grundnorm, according to Kelsen, is the basic or Apex norm that gives validity to
the other norms. With the concept of grundnorm, it was implied that one rule can be
derived from another rule and one law can be derived from another law. Grundnorm is
described as an exception independent of any other norm which gives validity from the
rules derived from it. The process of the subordinate norms deriving their powers from the
norms immediately superior to it, finally seizing at the grundnorm was termed as
concretization.
For instance, alert derives its authority and validity from the legislative body, and the
legislative body, in turn, derives its authority from the constitution. The constitution is the
grand norm according to Kelsen’s theory of pure law.

Salient features of Kelsen’s pure theory of law-

The assumptions on which the theory of law was propounded by Kelsen were-
(1) the theory is aimed at reducing the confusion and chaos that rises due to the natural law
philosophy.
(2) theory of law deals with the knowledge of what is and not what ought to be
(3) the theory considers law as a normative science distinguishing it from natural science.
(4) Kelsen’s theory is the theory of norms and is less concerned with the effectiveness of the
legal norms.
(5) it is confined to the system of positive law.

The implication of Kelsen’s Pure Theory of Law-

(1) According to Kelsen, there is no difference between state and law.
(2) there is no difference between private and public law.
(3) there is no distinction between natural and juristic personality.
(4) He disagrees with the concept of rights and believes in the concept of duties in law.
(5) he did not believe in the concept of separation of powers and considered all the three
organs as the norm creating his agencies.

Criticism of Kelsen’s theory-

 Firstly excludes or references social facts and felt needs of the society. Thus, his
theory of law is without any sociological foundation.
 Kelsen asserts all norms except The grand norm are pure. This assertion is
considered irrational. There is no logic as to how subsequent norms deriving their
authority from the apex norm can be pure when the apex norm itself is the outcome
of various sociological and political factors.
 The theory is not practical but rather hypothetical as it is not possible two divorce
law from the influence of social sciences and social needs.
 Friedmann states that the conflicts arising out of the ideological differences are not
solved with the theory of pure law and that it is statically impossible two divest law
from morality and ethics in society.

Merits of the Pure Theory of law-

 International law was recognized as law.

 A peaceful change could be a result.
 It is a refined form of analytical positivism

Conclusion-
Hans Kelsen has been among the most influential legal philosophers. His pure theory of law
interconnected all the norms with an apex norm at the top which gives validity and
legitimacy to all other norms. Thus, it can be concluded that law can be organized by
simplifying its parts and elements in a nutshell which can become a logical system.