Kelsen's Pure Theory of Law
Kelsen's Pure Theory of Law is an important theory of Law related to Jurisprudence
- Henry Kelsen (1881 - 1973) was a Professor of Law at the University of Vienna.
- He propounded the Theory of Law in his essay 'The Pure Theory of Law' and contributed it to the Law Quarterly Review in 1934.
- This theory is an improvement of Austin's Positivism Theory
- This theory was further elaborated in 1945 in his 'General Theory of Law and State'.
Postulates of Kelsen
Law is a norm of action
- Kelsen regards Jurisprudence as a normative science and not a natural science.
- In natural sciences, laws are statements of the sequence of cause and effect.
- If A is, B is.
- There can be no infraction of such a law, for a single infraction invalidates the law.
- Jurisprudence according to Kelsen is a normative science.
- If A is, then B ought to B. Eg: If a person commits a murder, he ought to be hanged.
- The law is valid irrespective of consequences.
'State' is a synonym for the legal order which is nothing but a pyramid of norms
The basic problem in Kelson's Pure Theory of Law is the derivation of norms. The question of the criterion of the testing of lawness of these norms exists.
Kelsen answers this by his hypothesis of 'grundnorm' or fundamental norm or basic norm or the base. The Grundnorm is a norm which is not capable of deducation from any principles of the science of law. Hence, the grundnorm is the fundamental norm and all other norms are derived from grundnorms in a hierarchical structure.
'Purity' of Kelsen' Theory
Kelsen's Pure Theory of Law attempts to be a consistent theory of law applicable to any legal system. He calls it pure because it is universalist and not confined to any particular legal system.
Improvements upon Austin's Positivism Theory
Austin also proposed the Austinian Theory of Law which is also called Imperative or Purely Imperative Theory of Law
- No dualism between State and Law
- Austin: Law is subordinate to the sovereign. Law is the personification of the State. Since Law emanates from the sovereign, it cannot control the sovereign.
- Kelsen: State is synonym for the legal order. So there is no distinction between State and Law.
- Austin: State controls Law
- Kelsen: Law regulates its own creation.
- Law need not be imperative
- Austin: Law is the command of the Sovereign
- Kelsen: Law is not the command of the Sovereign but a hypothetical judgement
- No dichtomy between Private Law and Public Law
- International Law may be law strictu sensu
- Customary Law is law strictu sensu
- Lauterpacht's criticism - Primacy of international law over state law is a back door entry permitted by Kelsen's theory to natural law.
- Allen's criticism - Sources of law like custom, statute and precedent are co-ordinate and do not admit of arrangement in a hierarchical pattern adopted by Kelsen.
- Friedmann's criticism - Pure science of law by Kelsen is inadequate from point of view of legal theory. The sphere of law is now intersecting spheres traditionally allotted to other social sciences like Economics, Psychology and Sociology.
- Normative Jurisprudence
- Locus stadi