PURE THEORY OF LAW

Date: 25th march, 2020.

Implications of the Pure Theory
Certain conclusions were made by Kelsen. The implications of Kelsen’s theory are wide and
many. It covers the concepts of state, sovereignty, private and public law, legal personality, right
and duty and international law.
 Law and state are not two different things-

He denies the existence of state as an entity distinct from law rather he is of the
opinion that both are in fact one and the same. He asserted that t is not correct to
say that law is the will of the state as both the state and law are identical. The state
as person is simply personification of law.

 No Difference between legal person and natural person

Kelsen also denies any legal difference between natural and juristic or legal
personality. For him, all legal personality is artificial and deduces its validity from
a superior norm .i.e., grundnorm. According to Kelsen, the concept of person is
merely a step in the process of concretization and nothing else.

 No difference between three organs of the Government

According to Kelsen, there is no difference between legislative, executive and

judicial process as they are all norm creating agencies. For kelsen, the distinction
between substantive and procedural law is relative, procedure assuming greater
significance. It is the organ and process of concretization that constitute the legal
system.
 No difference between Public and Private law
 According to Kelsen, there is no distinction between public and private law. That
is due to the fact that all law emanates from the same grundnorm. Both public and
private laws are part and parcel of a single process of concretization.

 Does not believe in the existence of legal rights

Kelsen does not believe in the existence of legal rights and asserts that “legal
duties” are the essence of law. That is evident in the “ought” of every norm. The
idea of right is not essential. The idea of right is merely a by – product of law. He
said that the idea of individual rights is not the foundation of criminal law today.
Earlier, the machinery of law was set in motion by the injured person as a matter
of right, but now the same is set in motion by the state as a matter of duty.
Further, he said that the idea of right is still basis of the law of property, but it is
possible that the same can be dispensed with in future. Thus, in his view right is
merely the duty as viewed by the person entitled to require its fulfillment.

CRITICISM

 The view of Lord Llyod is that basic grundnorm is a very troublesome feature of
Kelsen’s system. We are not clear what sort of norm this really is, nor what it does, nor
where we can find it. Given its characteristics as minimum effectiveness is very vague
and confusing and is very difficult to trace in every legal system. Grundnorm is made up
of many elements and any one of these cannot alone have the title of grundnorm.
 The quality of purity, claimed by Kelsen for all norms dependent on the basic norms has
been subject of attack for a long period. Julies Stone writes since the basic norm itself is
obviously most impure, the very purity of the subsequent operations must reproduce that
originality impurity in the inferior norm.
 Sociological jurists criticize on the ground that his theory totally neglected the social
facts and needs of the society. Laski was of the opinion that the logic behind the pure
theory of law cannot be applicable in life.
 Prof. Friedmann stated that kelsen’s theory provides no solution for the conflicts arising
out of ideological differences. His theory rejects the element of justice as a mere emotion
 which is indeed not true. Law cannot be divorced from ethics and morality which gives it
a honourable place in the society.
 The pure theory of law when applied to international law revealed some problems like in
international sphere; it is difficult to recognize one grundnorm. In fact in international
law, there are two possible grundnorm: first, supremacy of each municipal law and
supremacy of international law. This is not clear. Again he said that sanctions of
international law are war and reprisal but nobody would agree on this as numbers of wars
have taken place not as sanction but in utter violation of international law. Hence,
international law does not fit in the “pure theory of law” and it should be taken as a
limitation of the theory.