· KELSEN’S PURE THEORY OF LAW :
Kelsen was a Prof. of Jurisprudence in Vienna University, Austria. He owes his fame mainly due to his Pure Theory of Law. According to him, a theory of law must deal with law as it is actually laid down not as it ought to be. Kelsen advocated that a theory of law should be uniform and it should be to all time & in all places. A theory is something, which has universal application. In order to make his theory to have universal application, he desisted from including the elements of sociology, politics, economics, history or other disciplines because they r subject to variation from one place to another & from one time to another. Thus, he devised a pure theory, which would have the ingredient of only one discipline, i.e., law & totally devoid of sociology, political science, economics, etc.
He insisted that a theory of law must be free from ethics, politics, sociology, history, etc. Though their value is not denied, but Kelsen insisted that a theory of law must not have such considerations. There must be a pure theory of law. It is for this reason that Kelsen refused to define law as a command of sovereign, as Austin stated, because that introduces subjective & political considerations. He wished his science to be really objective.
For Kelsen, law is normative & not a natural science based on cause & effect. It is a norm that directs an official to apply force under certain circumstances. Thus, his theory of law is a theory of positive law.
Every body of facts has two distinguishable elements :
(i) external manifestation of human conduct that is perceived by our senses
(ii) the legal meaning of this act, i.e., the meaning conferred upon the act by the law.
e.g., people assemble in a large room, make speeches, some raise their hands, others don’t. This is the external manifestation of the fact. Its meaning is that a statute is being passed, that a law is being created.
Every manifested act is subject to 2 meanings – subjective & objective meaning, e.g., somebody makes some dispositions stating in writing what is to happen to his belongings when he dies. The subjective meaning of this act is a testament. Objectively, however, it may not be a testament due to non-observance of some legal formalities, etc.
Difference b/w Austin & Kelsen :
(i) The view of Austin is that law is a command backed by a sanction. However, Kelsen rejects the idea of command as it introduces a psychological element into a theory which should be pure.
(ii) To Austin, ‘sanction’ is something outside the law which imparts validity to law. However, Kelsen maintains that the legal ‘ought’ can’t be derived from any fact outside the law.
(iii) To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards, etc. r all norms in addition to the command.
Norm & Grundnorm :
Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behaviour. In other words, norm is the meaning of an act of will by which certain behaviour is commanded or permitted or authorised. Legal norms always belong to the realm of the ‘ought’. It is different from moral norm. The ‘ought’ in the legal norm refers to the sanction to be applied to contra-legal behaviour. In this process, Kelsen achieved two objectives :
(i) he removed the natural law and moral or ethical criteria from the concept of positive law; &
(ii) it also enabled him to solve the problem – how a norm can be said to be valid in case of illegal behaviour.
‘Grundnorm’ or the basic/fundamental norm is the initial hypothesis upon which the whole system rests. The ‘Grundnorm’ is the justification for the rest of the legal system. It is essential that it should command a minimum of support. When it ceases to be the basis of the legal order, it is replaced by some other ‘Grundnorm’ which obtains the support of the people. The ‘Grundnorm’ is the starting point for the philosophy of Kelsen.
Basic Norm /
Grundnorm
 |
Specific Official Action / Particular Norm
The function of ‘Grundnorm’ is to give objective validity to positive legal order, i.e., it is the common source for the validity of all norms that belong to legal order. Kelsen offered no explanation about the source of validity of the ‘Grundnorm’. He just presupposed that the ‘Grundnorm’ is valid. Kelsen stated that ‘Grundnorm’ need not be the same in every legal order, but a ‘Grundnorm’ of some kind will always be there. The basic point is that those who are in effective control ought to be obeyed.
The following various features of ‘Grundnorm’ will illustrate the reason for its position in pyramidal structure :
(i) Grundnorm is not a positive norm or rule of law, but is an extra-legal or non-legal norm as it is not derived from any higher norm.
(ii) It itself is not valid or invalid, it is an assumption or a jural postulate.
(iii) It only empowers & does not impose sanctions.
(iv) It validates the rest of the legal system / order.
(v) The pre-supposition of basic norm is based upon effectiveness.
(vi) Basic norm is the pre-supposed starting point of the procedure of creation of norms.
(vii) It gives validity to norms, but does not give content to norms.
Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize that jurisprudence must study relationship b/w law & justice, but Kelsen wished to free the law from the metaphysical mist of justice, material of social science & natural law. He also refused to follow Austin’s view (law is a command of sovereign) as it introduces subjective & political considerations in the concept of law. He insisted that the sole object of the study of jurisprudence is the nature of norms or standards which r set up by law.
For him, law & state r really the same thing viewed from different aspects. A legal order becomes a state when it has developed organs for creation, declaration & enforcement of law. Kelsen specially emphasized that the relations b/w state & law r inter-connected & traditional approach can’t continue in the emerging conditions of the society. But the practical importance of Kelsen’s approach is that he emphasized that law is a more fundamental notion than that of the state. While it is true that law can’t exist without a legal order, that order may take forms other than that of the state. Hence, Kelsen’s theory is wider and, therefore, more acceptable than that of Austin.
An important feature of Kelsen’s doctrine is that the state is viewed as a system of human behaviour & an order of compulsions. Thus, only relatively centralised legal orders r states.
Kelsen also applied his theory of pure science of law to the system known as ‘International Law’, but revealed many limitations. The pure theory requires that ‘Grundnorm’ be discovered. What Kelsen said was that the ‘Grundnorm’ should command a minimum of support. There r two possible ‘Grundnorm’ in Intl. Law – (i) The supremacy of each system; & (ii) the supremacy of intl. law. Every national legal order can recognise any norm superior to its own Grundnorm.
In view of Prof. Dias, it may be the principle of pacta sunt servanda & with ref. to intl. law, the ‘Grundnorm’ is a pure supposition unlike that of municipal law.
Kelsen didn’t regard the distinction b/w public & private law. He stated that contract may play as great a part as public law. To him, law may be made either by a parliament, a judge or a private citizen. Thus, a contract executes a superior norm & creates a binding obligation. Kelsen believed that reason could derive one form from another, but that reason would not create an original norm, i.e., ‘Grundnorm’ / one which was not derived from another.
Criticisms :
(i) The basic norm is a very troublesome feature of Kelsen’s system. It is not clear what sort of norm this really is, nor what it does, nor where we can find it. (per Lord Lloyd)
(ii) Kelsen did not explain the existence of the basic norm on which the whole legal system was founded by him. (per Prof. Goodhart)
(iii) As regards the quality of purity, for all purposes, it is dependent on the basic norm. Since that basic norm itself is the most impure, the subsequent operations must reproduce that original impurity in the inferior norm, thereby making the whole system impure.
(iv) The reasons for the validity of a norm can only be the validity of another norm – total pre-supposition.
Conclusion : Kelsen’s legal theory is an original piece of research, which has successfully made a vital contribution to jurisprudential thought. His views reg. norms, right, state, public & private law, have received wide appreciation from various academicians & jurists. His analysis about legal order is thought-provoking. Being original & creative piece of research, it was bound to encourage contemporary jurists, eminent judges & philosophers to react & raise many questions for further clarification & research.
Though Kelsen emerged 100 years after Austin, due to lack of development of communication channels, he was totally unaware of Austin’s theory. Hence, Kelsen viewed positivism from an angle different from that of Austin. Resultantly, it can’t be said that Kelsen’s Pure Theory of Law is an improvement upon Austin’s Command Theory.
However, complete diversity is not possible within the same discipline & there were similarities b/w Kelsen’s & Austin’s approach to the extent that they both:
· took law as it is;
· talked of fact as it exists;
· were positivist;
· were analysist; &
· were imperative thinker.
