Kelsen’s Pure Theory of Law
With his Pure theory of law, Hans Kelsen did not wish to present any new ideology of law. Rather, his aim was to present law as it is, free from all the various ideologies. He wanted to examine law in its purest form. Kelsen’s pure theory can be said to be one of the most refined developments of analytical positivism.
Kelsen started his pure theory with certain premises. The same can be roughly summarized as follows:
1. He believed that a theory of law must always be based upon law “as it is” and not on law “as it ought to be”.
2. According to him, a theory of law must hold good at all times in all places. Thus, he was an advocate of general jurisprudence.
3. He opined that a theory of law must be ‘pure’, that is, it must be free from the influence of other social sciences and disciplines. A theory of law must deal with law alone. He did not deny the importance of the other social sciences. However, he always believed that law must stay away from other considerations.
4. He believed that law is a normative science and that legal theory must be concerned with the effects of legal norms. He always equated the knowledge of law with that of “norms”
The Basic Norm (Grundnorm)
Kelsen distinguished between legal science and natural science on the basis of “oughts”. According to him, legal science deals with what ought to have happened. For instance, in case of a murder, legal science would always speak of the punishment that must be given to the murder. It would always speak of what should be done according to the law. He further goes on to say that in every legal system there exists a hierarchy of such “oughts” which emerges from a single “ought” which is known as the Grundnorm. It is not necessary that the grundnorm is same in all the legal system. The concept, in general, is present in all the legal systems.
However, its contents may differ. The grundnorm is the backbone of the legal system. According to Kelsen, it is not necessary for every legal rule to stand on its own. One legal rule is a derivation from another legal rule. However, the grundnorm is an exception to this. It is a stand-alone rule from which other legal rules are derived. Kelsen further states that the grundnorm owes its existence to its popularity. A grundnorm must necessarily be willfully accepted by the people and must be followed by them. Once such a norm loses popular support, it ceases to exist as a grundnorm and another norm is deemed to be a grundnorm. Such a phenomenon is known as a revolution.
Implications of the Pure Theory
Kelsen arrived at the following conclusions from his idea of grundnorm:
1. There exists no distinction between public and private law. Both of them have their origins in the
2. It is not the idea of right, but the idea of duty that is essential. This is evident in the element of “ought” present in every norm. He concluded that law essentially structures human behavior and that the idea of duty is essential to fulfill this function. The idea of right is only a by-product of the legal system.
3. Personification is used by law only as a technical device to achieve its goal as a normative science. Thus, the distinction between natural persons and juristic persons is irrelevant for the purposes of studying law.
4. The distinction between procedural law and substantive law is relative and procedural law is more significant.
5. The distinction between question of law and that of fact is relative. Fact is nothing but an assumption of the judge as to what must have happened in order to apply a particular norm.
6. Kelsen did not believe in the separation of power and argued that all the three- legislature, executive and judiciary- are essential “norm-creating” agencies.
Lord Lloyd has applauded the fact that Kelsen’s pure theory avoids some of the perplexities of Austin’s analytical positivism. However, he expresses concern over the uncertainty of the basic norm. It is difficult for the idea of basic norm to survive in the age of scientific behavioralism. Prof. Laski has stated, “granted its postulates, I believe the pure theory to be unanswerable, but….its substance is an exercise in logic not in life.”