Pure Theory of Law 

Kelsen’s Pure Theory of Law

Kelsen's Pure Theory of Law is an important and influential legal theory established by Austrian jurist Hans Kelsen that tries to give a thorough explanation of the nature and foundations of law. Kelsen defines law as a normative framework that exists apart from social norms or moral principles. He emphasises the concept of a hierarchical legal structure in his theory, in which norms are developed from a fundamental norm or Grundnorm. In a legal system, this basic norm serves as the ultimate source of legitimacy for all other norms. By divorcing law from subjective moral judgements and concentrating on its structure and internal coherence, Kelsen's Pure Theory of Law revolutionised legal thought. It provides a systematic framework for analysing legal systems regardless of their unique content, making it an important addition to jurisprudence.

what is a Norm?

One standard, which pertains to prescriptive rather than descriptive matters, is attributed by another norm. The normative principle that those who engage in stealing should be subject to punishment remains applicable regardless of whether the thief is apprehended and penalised. The existence of the norm prescribing punishment for thieves is predicated on the existence of another norm that dictates such punitive measures. Not all norms may be classified as legal norms, since there are moral standards as well. Legal rules has a coercive nature, but moral norms do not exhibit the same characteristic.

Grundnorm as Basic Norm

It is the basic norm, order, or rule that forms an underlying basis for a legal system. It is a point of origin for all law, on which basic law and the constitution can gain their legitimacy. It is the root and its chain of validity cannot be traced back any further. The basic norm is that (coercive) acts ought to be done (by officials). The constitution itself is not the basic norm, because the constitution is a fact, not a norm. The basic norm is acts that ought to be done in accordance with the constitution. Effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition.

Pure Theory of Law 1960

Kelsen defined law as a hierarchy of binding norms that are linked together to constitute a legal system. Legal science and legal politics must be kept apart. The concept of Grundnorm (i.e. basic norm) is central to the Pure Theory. It is a hypothetical norm, presupposed by the theory, from which all lower norms in a legal system, from constitutional law downward, is understood to derive their validity, and thus their authority or bindingness. A norm is legally legitimate if and only if the organ that created it is authorised to do so by a higher standard.

Kelsen argued that the legitimacy of legal standards may be recognised without eventually linking them to a suprahuman source such as God, personified Nature, or a personified State or Nation. The Pure Theory is supposed to be strict legal positivism, with no mention of natural law. He contended that law may be recognised merely by its form, rather than its substance. Kelsen developed a legal hierarchy beginning with Grundnorm, from which all other norms are connected by being either lesser or superior norms. He contended that, in order to be free of moral or political influence, the application of the law must be detached from traditional moral or political influence. Moral debate is still conceivable, and even encouraged, in the sociological sphere of intersubjective interaction, but it is not a factor that drives law enforcement.

The static theory of law depicts the law as a hierarchy of laws, with particular laws ranked as superior or inferior to one another. The static theory of law comes into direct touch with the governmental administration of the state in the dynamic theory of law, which must recognise the role of the legislature in the creation of new legislation. At the same time, there is the notion of law as being influenced by accumulated standing law, which symbolises court judgements and, in theory, becomes part of the hierarchical representation of the Pure Theory of Law. Before it enters the area of the static theory of law, the legislative process recognises the law as the result of political and ethical discussion, which is the product of legislative action.

International law is a relatively rudimentary kind of law in comparison to the highly evolved forms of law found in individual countries and governments. International law is often prone to war and harsh diplomatic measures as the only corrective mechanisms available in controlling the actions of states. The interpretation of law is an act of knowledge and voluntary choice, and it is to be considered as part of the science of law free of the taints of politics, morality, and metaphysics.

Comparison of Kelsen with Austin

Kelsen's thesis is more credible than Austin's theory since the concept of a norm resembles that of a rule rather than a command. Austin's basic concept of a foreseeable penalty is replaced by the psychological element of worry, which cannot separate the social reality of being obligated from that of being under an obligation. According to Kelsen, the basis of the standard's validity is not the fact that it is given by a regularly followed and determined individual or group of people, but rather another norm.

Comparison of Kelsen with Hart

Kelsen's basic norm is not characterised as a truth, but rather as a presumption that particular norms are legitimate. Kelsen defined the ultimate test of validity as laws being presumed to be legitimate. This opens the door of not assuming the legitimacy of a revolutionary regime or military coup. We may simply opt not to consider the laws of the new revolutionary administration or military junta as legally legitimate, regardless of whether they are successful or popular. According to Hart, if the officials of a legal system utilise a rule of recognition to identify legitimate legislation, that is the test of that system's legitimacy. Harts argued that the rule of recognition does not have to be presupposed to be legitimate as long as it establishes the factual test of validity for the legal system being tested. Kelsen remarked that the fundamental norm always has the same substance and that coercive actions should be used in line with the constitution, but Hart's rule of recognition establishes the factual test of legal validity in every given system, thus its meaning will vary from legal system to legal system.

The Principle of Legitimacy

When there is a revolution, Kelsen claims that the existing laws in force under the former regime lose their legitimacy since the essential norm that justified them can no longer be assumed because the old regime is no longer functional. Kelsen observed that many laws that existed under the previous regime would seem to exist under the new legal order owing to a tacit vesting of validity of the substance of the old laws by the presupposed new fundamental norm when the new regime becomes effective. Although the revolutionary government is unlawful, courts may regard its actions as enforceable under the basis of necessity, since an illegal government was preferable to no government at all.

Criticisms of Kelsen

According to Kelsen, all laws are geared at officials who are compelled to impose punishments, but laws do not seem to be mainly focused at officials in practise. Kelsen made no distinction between criminal and civil law because he believed that the social mechanism is basically the same in both circumstances, despite variations in the criminal and civil sanctions.

There are two legal systems that are nevertheless dependent on one Grundnorm for their validity; for example, the legal systems of the United Kingdom and New Zealand are separate and distinct, but the New Zealand legislature derives its legislative powers from the United Kingdom; thus, Grundnorm may not assist us in identifying or distinguishing between legal systems. The Grundnorm may not be able to identify what the legitimate rules of a legal system are; for example, the Grundnorm of the United Kingdom states that coercive actions should be used by authorities in ways set by tradition, which is imprecise in certain aspects. It may seem absurd to believe that a legal system that is intrinsically cruel and terrible, such as the Nazi legal system, deserves to be considered a legal system. Not all laws are morally good, and persons, such as Nazi leaders, may be held responsible even for authorised conduct committed under the Nazi dictatorship if they were sufficiently wicked.

Raz’s Critique

Kelsen's idea of the fundamental norm, according to Raz, is a theory of justified normativity, which implies that whatever statement a person makes concerning law must be justified in terms of his presumption that this thing ought to be done. Raz said that he saw no need to embrace this idea since we may simply claim that laws are normative because they are made up of rules. These regulations do not have any final rationale; they are only designated as laws by certain persons, such as judges and attorneys. The best approach to determine what the laws are is to examine the social realities of what lawyers and judges do.

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