⚫Introduction:- Hans kelsen was the Austrian jurist, the theory that he has propounded is known as the 'pure theory of law'. kelsen advocated the separation of law from the metaphysics, politics and sociology. kelson and his followers belong to the Vienna School of jurisprudence, which has advanced the analytical jurisprudence in accordance with the progress of the modern logic.
According to professor Dias pure theory of Kelson represents a development in two directions-
1) it makes the most refined development to the date of analytical positivism.
2) it also makes a reaction against the role of different approaches that characterized the opening of the 20th century.
According to professor Dias pure theory of Kelson represents a development in two directions-
1) it makes the most refined development to the date of analytical positivism.
2) it also makes a reaction against the role of different approaches that characterized the opening of the 20th century.
⚫Kelson's Contribution:-
Kelson works in the Austrian Constitution (1920), General Theory of Law & State (1945), The Pure Theory of Law (1935), Principle of International Law (1952), etc., are some of his contributions to the legal world.
Kelson works in the Austrian Constitution (1920), General Theory of Law & State (1945), The Pure Theory of Law (1935), Principle of International Law (1952), etc., are some of his contributions to the legal world.
⚫Kelson's View on His Pure Theory of Law:-
According to kelson theory of law should be uniform. It should be applicable to all the times and in all places kelson arrived at generalisation which held good over very wide area.
According to him, the theory of law must be dealt with as it is actually laid down and not as it ought to be. In this regard he agreed with John Austin and on this point he got the title of positivist.
Kelsen writes that a theory of law must be different from metaphysical, ethics, politics, Sociology and history. It must be pure; however, kelson and his followers rejects any such legal idealism as unscientific. The pure theory of law must be purely formal and pure.
According to kelson theory of law should be uniform. It should be applicable to all the times and in all places kelson arrived at generalisation which held good over very wide area.
According to him, the theory of law must be dealt with as it is actually laid down and not as it ought to be. In this regard he agreed with John Austin and on this point he got the title of positivist.
Kelsen writes that a theory of law must be different from metaphysical, ethics, politics, Sociology and history. It must be pure; however, kelson and his followers rejects any such legal idealism as unscientific. The pure theory of law must be purely formal and pure.
⚫Foundation of Kelson's Theory:- The science of law is a hierarchy of normative relations not a sequence of cause and effect the like natural science. The soul of kelson's theory is thereby based on norms.
According to Friedman the essential features of Kalson's pure theory of law are-
1) The aim of the theory of law as of any science is to reduce Chaos, and multiplicity to Unity.
2) the law is a normative science and not a natural science.
3) Legal theory is a science and not volition (Desire). It is a knowledge of what the law is and not what the law ought to be.
4) Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.
5) theory of law is formal. It is a theory by way of ordinary changing concepts in a specific way.
According to Friedman the essential features of Kalson's pure theory of law are-
1) The aim of the theory of law as of any science is to reduce Chaos, and multiplicity to Unity.
2) the law is a normative science and not a natural science.
3) Legal theory is a science and not volition (Desire). It is a knowledge of what the law is and not what the law ought to be.
4) Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.
5) theory of law is formal. It is a theory by way of ordinary changing concepts in a specific way.
⚫Postulates of Kelson's Pure Theory of Law:-
Law is a normative science:- According to Kelson, law is a normative science and not a natural science. The law of natural science describes a relationship with exists and can be accurately described, determined and discovered in the form of 'is' (sein). However, the law it is described as knowledge which has difference from 'law ought to be'.
Secondly, sanction is inevitable element of the rule of law which is described as norm by Kelson.
Kelson said that law is primarily based on norms which stipulates sanction. The legal norms are different from other norms.
Secondly, sanction is inevitable element of the rule of law which is described as norm by Kelson.
Kelson said that law is primarily based on norms which stipulates sanction. The legal norms are different from other norms.
Legal norm:-
Norms and rules are certain directions which set out the standard of behaviour. According to kelson the object of science of law are those norms which have the character of legal norms and which makes certain acts legal or illegal.
Norms and rules are certain directions which set out the standard of behaviour. According to kelson the object of science of law are those norms which have the character of legal norms and which makes certain acts legal or illegal.
⚫The Basic or Grundnorm :-
Kelson regarded jurisprudence as a normative science distinguished from natural science. According to him the state is a synonym for the legal order, which is nothing but a pyramid of norms. He derives pure science of law from ought proposition of juristic science. He builds up his pure theory of law on the hypothesis of the Grundnorm or Basic norm. His Grundnorm is not capable of deduction from any principles of the pure science. It is initially a hypothesis and is incapable of logical proof. For example, In England this Grundnorm would be what the Crown said in the Parliament and it is lay down as law in England. In India the Constitution of India is Grundnorm or Basic norm.
From the basic norm or Grundnorms, norms making power devolve upon a lower level and from wich it flows. At each level the hierarchy of norms can be generated. The lawlessness of a particular norm will be tested by considering whether or not ultimately it is traceable to the Grundnorm. The entire hierarchy of norms making organs and the process of Administratering this norms is called by Kelson the legal order of a particular state. The pure theory of law have its wider implication in all over the world. It includes the concept of state, sovereignty, legal personality, private and public law etc. It was the Kelson who said that there was no differences between law and state and public and private law. It was said by many expert that Kelson's pure theory of law is an improvement upon the Austin's theory of law.
Kelson regarded jurisprudence as a normative science distinguished from natural science. According to him the state is a synonym for the legal order, which is nothing but a pyramid of norms. He derives pure science of law from ought proposition of juristic science. He builds up his pure theory of law on the hypothesis of the Grundnorm or Basic norm. His Grundnorm is not capable of deduction from any principles of the pure science. It is initially a hypothesis and is incapable of logical proof. For example, In England this Grundnorm would be what the Crown said in the Parliament and it is lay down as law in England. In India the Constitution of India is Grundnorm or Basic norm.
From the basic norm or Grundnorms, norms making power devolve upon a lower level and from wich it flows. At each level the hierarchy of norms can be generated. The lawlessness of a particular norm will be tested by considering whether or not ultimately it is traceable to the Grundnorm. The entire hierarchy of norms making organs and the process of Administratering this norms is called by Kelson the legal order of a particular state. The pure theory of law have its wider implication in all over the world. It includes the concept of state, sovereignty, legal personality, private and public law etc. It was the Kelson who said that there was no differences between law and state and public and private law. It was said by many expert that Kelson's pure theory of law is an improvement upon the Austin's theory of law.
⚫Criticism of Kelson's theory:- Kelson's Pure Theory of Law suffers from certain glaring defects. They are as follows-
1) It excludes all references of social facts and felt needs of the society. Thus his pure theory of Law is without any sociological foundation.
2)The Theory is found to be based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of political ideology and social needs. He doesn't consider justice and morality as essential attributes of law.
3) As stated by Friedman, Kelson'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.
4) Kelson's account of legal dynamics is inadequate. It ignores the purpose of law.
5) Kelson's Pure Theory of Law also suffers from methodological short- comings. He ignores the fact that the action of the authority enforcing law to be valid ,has to be in accordance with the procedure and therefore, it becomes necessary to probe into the content of law. Mere use of force wouldn't validate a law. Kelson's normative system being one-sided remains indifferent to the content of norms.
1) It excludes all references of social facts and felt needs of the society. Thus his pure theory of Law is without any sociological foundation.
2)The Theory is found to be based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of political ideology and social needs. He doesn't consider justice and morality as essential attributes of law.
3) As stated by Friedman, Kelson'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.
4) Kelson's account of legal dynamics is inadequate. It ignores the purpose of law.
5) Kelson's Pure Theory of Law also suffers from methodological short- comings. He ignores the fact that the action of the authority enforcing law to be valid ,has to be in accordance with the procedure and therefore, it becomes necessary to probe into the content of law. Mere use of force wouldn't validate a law. Kelson's normative system being one-sided remains indifferent to the content of norms.
⚫Conclusion:-
Despite these shortcomings, Kelson's contribution to legal theory can't be ignored. His main contribution lies in that, he attempted to break away with the traditional natural law theory on the one hand and legal positivism on the other. He asserted that legal knowledge is free from foreign elements, such as ethics, psychology, sociology, etc. His normative theory separates law from morality on the one hand and law and 'fact' on the other.Kelson refused to separate law from the State and held that law is the 'will of the State'.
Despite these shortcomings, Kelson's contribution to legal theory can't be ignored. His main contribution lies in that, he attempted to break away with the traditional natural law theory on the one hand and legal positivism on the other. He asserted that legal knowledge is free from foreign elements, such as ethics, psychology, sociology, etc. His normative theory separates law from morality on the one hand and law and 'fact' on the other.Kelson refused to separate law from the State and held that law is the 'will of the State'.
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