Hans Kelson (1881-1973)-
Hans Kelson was Austrian Jurist. He was born at Prague in Austria in 1881 and was a professor of law at the Vienna University. She was also the judge of the supreme constitutional Court of Austria for 10 years during 1920 to 1930. thereafter he shifted to England he came to the United States and work as a professor of law in several American Universities and authored many books. He released the \”Theory of law entitled \”The General Theory of Law and State 1945. it drew the attention of the modern jurisprudents and came to be known as Kelson\’s Pure Theory of Law.
Kelson Pure theory of Law
According to Kelson a theory of law should be uniform. It should be applicable to all times and in all places. according to him, Law must be free from ethics, politics, history, sociology etc. in other words, it must be pure.
Law as a System of Sanction-Prescribing Norms
Kelsen’s definition of a legal system is a system of norms that prescribe sanctions. A sanction is a punishment or reward that follows from a condition; an example of a sanction-prescribing norm is ‘A thief should be imprisoned.’
A legal system includes general norms such as “Thiefs should be imprisoned”, but also specific norms such as ‘This man should be imprisoned.’ A norm with specific application is still a Kelsenian law.
Dependent Norms
An independent legal norm is a norm that prescribes a sanction, e.g. ‘This man should be imprisoned.’ A dependent legal norm is a legal norm that does not itself prescribe a sanction, but is connected to a legal norm that does. For example, the norm ‘This judge is authorized to hear cases’ is valid only insofar as that judge can prescribe/dismiss sanctions, or make decisions that ultimately lead to sanctions.
If a norm is not connected to a sanction-prescribing norm, then it is not a Kelsenian law. Such a norm is instead a moral or social norm posited by a legal organ who is not exercising their legal capacity.
Source of Validity – The Grundnorm
Under Kelsen’s theory, no norm is objectively valid. The ‘source’ of validity therefore must be a norm that is assumed to be valid. Kelsen formalizes this assumption through a new object: the basic norm or Grundnorm. The Grundnorm is not a legal norm, it is instead a norm that is assumed to be valid by the legal scientist examining the legal system. A legal norm is then any norm derived from this Grundnorm.
A Grundnorm refers to a specific constitution or other source of law. For example, the Australian legal system’s Grundnorm is “One ought to obey the Australian Constitution.”
Theory of law should be uniform –
According to Kelsen, a theory of law should be uniform. for example – it should be applicable at all times and in all places.
Theory of Law must be pure –
According to Kelson\’s pure theory of law, it must be free from Ethics, Morality, Politics Sociology, History etc. it must be pure. This is important because different disciplines have different methodology, and so it’s hard to analyze law when it’s all mixed up with other things. Kelsen’s pure theory allows for a pure ‘legal science.’
According to Kelsen law is a normative science –
Jurisprudence is the knowledge of norms. Law is a normative science. A norm of law is simply a preposition in hypothetical from. A norm of law has a distinct feature. They are different from Science norm.
Hierarchy of normative relations –
For Kelsen law is the knowledge of hierarchy of normative relations. He does not want to include in his theory what ought to be but for him, law is a theory of analysis an analysis that is free from all ethical and political judgment of value
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Elements of Pure Theory of Law:
Kelsen gave his view under this theory about:
- State;
- Sovereignty;
- Public and Private law;
- Public and Private rights;
- International Law, private and juristic law
Salient features of Kelson\’s pure theory of law / Essential of Kelson\’s Pure Theory of Law
(1) Reduce chaos and multiplicity to unity- The aim of the Pure theory of law is to reduce chaos and multiplicity to Unity
(2) Legal theory as a science of what law is, not what ought to be – Pure theory of law deals with the knowledge of what law is, and it is not concerned about what law ought to be.
(3) Law as normative science – Theory considered as a normative science and not a natural science.
(4) Effectiveness of not out of scope – Legal theory as a theory of norms is not concerned with the effectiveness of legal norms
(5) It is formal theory confined to a particular system of positive law as actually in operation.
(6) The relation of legal theory to a particular system of positive law is that of possible to actual law
Implications of the Pure Theory
Law and state are not two different things-
No difference between Municipal and international law
No Difference between legal person and natural person
Supremacy of International law
Merits of the Pure Theory of Law
(1) Kelson recognized International Law as a law
(2) Pure theory of law is best for peaceful change
(3) It makes the most refined development of analytical positivism
(4) Kelson\’s concept of legal system is clear original and striking
(5) Kelson has explained that no law can prevail country to grundnorm or constitution
(6) Kelson\’s Pure Theory of Law is considered to be the most outstanding theory of law
Criticism of Kelson’s Pure theory law
- Criticism on “Pure Theory of Law”:
Following are the points for criticism presented on this theory mainly by Lord Lloyd,
- Grandnorm is a vague concept:
The concept of grandnorm is not clear. It cannot be applied where there is no written constitution.
- International Law is a weak law:
Kelsen advocated the supremacy of international law. But even now we see no sanctioning force behind international law.
- No difference between State and Law:
This point is also criticized by various writers. Law is a separate entity from State. State is a body in which there is law, and law is a rule that regulates the State.
- Difference between public and private law:
Kelsen has stated that there is no difference between public and private law, which is not correct for these days.
- Ignorance of Customs and Precedents:
Kelsen has not expressly stated customs or precedents as source of law.