ANALYTICAL
SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW &
KELSEN’S PURE THEORY OF LAW (UNIT – I) :
·
Analytical
School / Positivist Theory :
The start of 19th
century might be taken as the mark of the beginning of the positivist movement. The term ‘positivism’
has many meanings, which were tabulated by Prof. Hart as follows:
(i) Laws are commands;
(ii) The
analysis of legal concepts is – (a) worth pursuing; (b) distinct from
sociological & historical inquiries;
(iii) Decisions
can be deduced logically from predetermined rules without recourse to social
aims, policy or morality;
(iv) Moral
judgments can’t be established or defended by rationale, argument, evidence or
proof; &
(v) The
law as it is actually laid down has to be kept separate from the law that ought
to be.
Positivism
flourishes in stable conditions. The
difficulties of maintaining a right separation b/w ‘law what is’ & ‘what
ought to be’ come to light in turmoil.
·
JEREMYBENTHAM ( 1748 – 1832 ) laid down the foundation of positivism in the
modern sense of term.
He was a
ferment champion of codified law & of reforming English law,
which was,
according to him,
in utter
chaos. He distinguished b/w ‘
expositional
jurisprudence (what the law is)’ & ‘
censorial jurisprudence (what law ought
to be) or the art of legislation’.
The main function of the former was ‘
to
evaluate law’, while that of the later ‘
to
analyse law’. In
seeking answers to the questions { What is a penal code of laws? / What is a
civil code? }, he had to investigate the nature of law, which led him into a
maze through which he mapped out a path of laws in general.
This was
finished more or less in 1782,
but remained unpublished till 1939 when Prof. Everett disinterred it & published
under the title ‘
The Limits of Jurisprudence Defined’ in
1945. A revised
edition was published as ‘
Laws in
General’ in
1970 under
the editorship of Prof. H.L.A. Hart.
Bentham gave the ‘
Principle of Utility’,
which says, “
Only those laws are important, which
give maximum happiness to the maximum number of people”. Those laws, which r not giving maximum
pleasure & giving maximum pain to the people ought to be removed. Pleasure & pain r the basic ingredients
of this principle. He also gave “
Hedonistic Calculus,
which is the
imaginary principle to judge pleasure & pain of any law”.
· JOHNAUSTIN ( 1790 – 1859 ),
who was a Prof. in London University,
is the founder of the Analytical School.
He is
considered as the Father of English
Jurisprudence. He was elected to
the chair of Jurisprudence in the University of London in 1826. Then he proceeded to Germany & devoted
some time to the study of Roman Law.
Austin,
a disciple of Bentham,
is a
positivist & concerned with ‘
what law is’ & ‘
not what law ought to be’. ‘Positus’ means ‘as it is’.
The first six
(6) lectures were published in 1832
under the title ‘The Province of Jurisprudence Determined’, while rest were
published posthumously in 1861. He avoided
metaphysical method, which is a German characteristic. The method, which Austin applied, is called
analytical method & he confined his field of study only to ‘positive law’. Therefore, the school founded by him is
called by various names – ‘Analytical’,
‘Positivism’, & ‘Analytical Positivism’. Prof.
Allen thinks it proper to call the Austin’s school as ‘Imperative School’ on the basis of is conception of law,
i.e., ‘Law is Command’.
For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply
& strictly so called’ or ‘law set by political superiors to political
inferiors’. He believed that
‘Law’ is only an aggregate of laws & defined ‘law’, “As
a rule laid down for the
guidance of an intelligent being by
an intelligent being having
power over him”. To him, law is the command of a sovereign requiring
his subjects to do or forbear from doing something. There
is an implied threat of ‘sanction’ if the command is not obeyed.
L A W
-----------------------------------------
Law properly so called Law improperly so called
Law
by God Law by humans Law by analogy
or Divine Law / Laws set by
Law
by metaphor
men for men
--------------------------------
Law by political
Law by superiors Law of
fashion All
the laws
superiors to to
inferiors, but & public opinion, of
nature, i.e.,
political inferiors the superiors r not i.e., international law
of motion,
political superiors law, customs
& gravitation,
traditions etc.
This is called
Positive
Law --------------------------
Positive Morality
He distinguished
b/w ‘laws properly so called’
& ‘laws improperly so called’. The former r general commands addressed to
the community at large & enjoined classes of acts & forbearance. They r divided into laws set by God / divine
law / law of God & laws set by men to men.
Laws set by men to men also fell into 2 categories – the first
consisted of laws set by political superiors to political inferiors. This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’
& was, to him, the subject matter of jurisprudence. Thus, law
properly so-called must hv 3 elements– (i) command, (ii) sanction
& (iii) sovereign. The second
category consisted of laws set by men to men neither as political superiors nor
in pursuance of rights conferred upon them by such superiors, e.g., those set by
a master to a servant or the rules of a club. They r still laws properly so called because
they r commands, but he distinguished them from positive law by giving them the
term ‘positive morality’.
Analogous to the
laws of the latter class r a number of rules to which the name ‘laws improperly so called’ is
given. They are opinions or sentiments of an undeterminate body of men
& laws
of fashion or honour. He places intl. law
under this class. In the same way, there
r certain other rules which r called law metaphorically – laws of nature. They are laws improperly so called.
‘Positive law’ (law simply & strictly so called
or law set by political superiors to
political inferiors) is the only proper subject matter of
jurisprudence. Jurisprudence is the
general science of positive law.
Laws
properly so called are species of commands. But being a command, it flows from a
determinate source or emanates from a determinate author. For whenever a command is expressed of
intimated, one party signifies a wish that another shall do or forbear &
the latter is obnoxious to an evil which the former intends to inflict in case
the wish is disregarded. The key to
understanding law properly so called lies in duty which is created by the
command of a sovereign. Duty &
sanction are correlative terms – whenever duty lies, a command has been signified
& whenever
a command is signified, a duty is imposed.
In a nutshell, by law,
Austin means command, sanction & duty
(C+S+D), which
r inextricably linked & can’t be separated. According
to him, there r 3 kinds of laws,
which, though not commands, r still within the province of jurisprudence:
(i) Declaratory
of Explanatory Laws : Austin does not regard them as commands because
they r passed only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws : These too r
not commands but r rather the revocation of a command. They release from duties imposed by existing
laws & r named permissive laws.
(iii) Laws of Imperfect Obligation :
These laws have no sanction attached to them.
Thus, there is a duty, but in case of non-compliance, there is no
sanction, e.g., D.P.S.P., F.D.s, etc.
Criticisms of Austin’s Theory :
(i) Customs
ignored : For Austin, law is the command of sovereign. In the
early times, not the command of any
superior, but customs regulated the
conduct of the people. Even after
coming of State into existence, customs continued to regulate the conduct. Therefore, customs should also be included in the
study of jurisprudence, but he ignored them. Customs
have been in existence since old times.
Customs hv also bn an important source of law. As per Austin, customs can only be a law if
the sovereign accepts them as law, while customs provide the basis on which the
law can be based. Thus, even if the sovereign
does not recognise them as law, customs hv always bn an important source of law
& can’t be ignored.
(ii) Judge-made
law : There is no place for
judge-made law. In the course of their duty (while applying precedents & interpreting
the law), judges make law. Though an Austian would say that judges act
under the powers delegated to them by the sovereign, therefore, their acts r
the commands of the sovereign. However, in modern times, judges perform a creative function & Austin’s
definition of law does not include it.
(iii) Command
theory untenable : Command presupposes a commander. No indeterminate party can command, expressly or
tacitly or can receive obedience or submission. The question is whether he can be discovered,
who might be regarded as having commanded the whole corpus of law. In democratic system, it is not possible that one person
commands.
(iv) Sanction
is not the only means to induce obedience : As per Austin, it is the
sanction alone which induces the man to obey law, while it is open to
criticism from many points of view as there r many other considerations such as
reasoning, logic, love, etc. due to which people
obey.
(v) International
Law : Austin
put Intl. Law under positive morality a/w the law of honour & law of
fashion. The so-called law of nations consists
of opinions or sentiments. It,
therefore, is no law properly so called.
The
main ingredient of law lacking in Intl. Law is sanction, but this alone
will not deprive from being called law. Now-a-days, Intl. Law is playing an important role
&, thus, it can’t be
totally negated. Hence, nobody will accept that Intl. Law is
not law. Therefore, according to
Austin, a very imp. branch of law shall be excluded from the study of
jurisprudence.
(vi) Relation
of law & morals overlooked : To Austin,
law isn’t concerned with morals but this isn’t correct proposition. Law is not an arbitrary command, but it is a
growth of an organic nature. Moreover,
law has
not grown as a result of blind forces, but it has been developed consciously
& has been directed towards a definite ends. It isn’t completely devoid of ethical &
moral elements. Any law, which is devoid of ethics or morality,
can’t
withstand the test of time. People don’t
accept it whole-heartedly because of it being unethical. Hence,
morals hv
always bn an integral part of law.
(vii) Other
Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure
Code, etc. He also does not talk about
laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.
Applicability of Austin’s Theory In India :
(1) We don’t hv a
legally unlimited or indivisible sovereign. Our
constitution is supreme, though it
can be amended, but basic structure can’t be.
(2) Though there
is separation of powers, yet sometimes
judiciary makes law (Art. 141 – Vishakha’s case & D.K
Basu’s case).
(3) Ordinance making power of the Governor & the
President (Art. 123 & 213);
(4) We have
quasi-federal system. Though the
President has the supreme power, but the same is exercised by the Prime Minister.
(5) DPSP r
not positive law as per Austin. Though DPSP r non-justiciable,
yet they
r important as they govern the guidelines for the society. Thus, the principle of ‘is’ & ‘ought’
fails.
Comparison
of Bentham & Austin :
(i) Bentham
provided a deeper & more adaptable theory. His concept of sovereignty was flexible as it
avoided indivisibility & illimitability. He was, thus, able to accommodate the division
of authority b/w organs as in a federation or division in certain areas as well
as restrictions of authority.
(ii) His concept
of law was broader than Austin’s.
He
avoided the absurdity of ‘law properly so called’.
(iii) His sanction
was both wider & less important than Austin’s sanction. Laws are still laws even though supported by moral
or religious sanctions or they may even be accompanied by rewards. He, thus, had no need to resort to a sanction
by nullity.
Prof. H.L.A.
Hart, a British Philosopher and an eminent jurist, is considered as the
significant exponent of Analytical Positivism.
Hart in his vital contribution ‘The
Concept of Law’ (1961)
has expounded
his legal theory as a system of rules by exploring the relationship b/w law
& society. His main
objective is to further explain understanding of law, coercion & morality.
According to
Hart, the law is a system of rules. Two types of rules r – ‘Primary’ & ‘Secondary’. Hart rejects Austin’s theory that rule is a
kind of command & substitutes a more elaborate & general analysis of
what rules r. Hart observed, “Union of
these two types of rules is the most powerful tool, which will
lead to proper general analysis of the situation created by Austin’s definition
of law.
PRs r those that impose duty upon
individuals & r binding because of practices of acceptance which people r
required to do or to abstain from certain actions. In
other words PRs impose duties obligations on individuals in primitive community. Due to
social control, such community suffers from 3 defects – uncertainty, static character & inefficiency. The stage of primitive community requires
proper modification to make the social structure more effective, efficient
& certain. This gives rise to SRs & introduction
of SRs (power conferring rules, enabling legislations, to determine when the
rules hv bn broken) is described as step forward as important to
society as the invention of the wheel.
He emphasized that ‘Law is a union of P&SRs’ &, thus, it is born
in the society. Under PRs, human beings r required to do or
abstain from certain action, whether
they wish or not. SRs r in a
sense parasitic upon or secondary to PRs. While PRs impose duties, SRs confer
powers.
While PRs r concerned with the actions which the
individuals must or must not undertake, the
SRs specify the ways in which the PRs may be conclusively ascertained,
introduced, eliminated, varied & the fact of their violation conclusively
determined.
According to
Hart, a rule is :
(i) something, which creates obligation &
simultaneously
(ii) a standard by which one can judge whether rule is
right or wrong.
Defects of primitive society / regime of
PRO :
(i) Uncertainty
about what r primary rules of obligation.
(ii) Static
Character, i.e., new rules r not
created & old ones r not repealed.
(iii) Inefficiency of the diffused social pressure by which rules r maintained. There
is a question of who will ascertain finally & authoritatively if a rule has
been violated or not or in case of conflict b/w two rules.
The remedy for each of these 3 defects consists
in supplementing the PRO with SRs, which
r rules of a different kind – recognition, change & adjudication
(RCA).
The removal
of defects will transform a primitive society, i.e., a pre-legal society into a
developed society, i.e., a legal society. If we
consider the structure which results from the combination of PRO with the SRs
of RCA, we have a systematic legal
system to meet the requirements of the society.
Remedies :
(i) First remedy for uncertainty is the
introduction of the rules of recognition (ROR). ROR may
be simple or complex. It is simple when
it is written in texts/statutes.
It is complex when it is not directly mentioned anywhere & has to be deciphered or
deduced from other sources, i.e., doctrine of basic structure, the rule
of death sentence only in the rarest of rare cases, etc. In a developed legal system, the ROR r more
complex & lay down more than one criterion for identification of the ROR–customs, precedents, etc.
(ii) Second remedy for static nature is
the introduction of the rules of change (ROC), i.e., introduction
of legislature which may enact new ROR & repeal old ones that were created
by customs or traditions & r now undesirable. Whenever ROC is present, the primary ROR will
also be there because only ROR will identify by reference the legislation as a
ROC.
(iii) Third remedy for inefficiency is the
introduction of the rule of adjudication (ROA), i.e., the
judiciary to authoritatively determine whether on a particular occasion a PR
has been violated or not. ROA
don’t impose upon the judges the duty to adjudicate. Rather, they confer judicial powers & a
special status on judicial declaration reg. the breach of obligations.
The SRs (ROR, ROC & ROA) provides the
centralised official ‘sanctions’ of
the system. They describe the heart of a legal
system in combination with PRs.
Validity & Efficacy :
The statement that a particular rule is
valid means that it satisfies all the criteria provided by the ROR. Thus,
the ROR is the reason for the validity of a PRO. The efficacy of the rule means that a PRO,
which requires certain behaviour, is obeyed more often than not. The validity & the efficacy of a rule of
obligation r two different things.
But
where a rule is not efficacious in the sense that it is not obeyed by anybody,
then a
serious challenge can be posed on its validity also.
Rule of Recognition as an ultimate rule :
The ROR, which
provides the criteria by which the validity of other rules of the system is
assessed, is an ultimate rule. ROR
gives validity to PRO but there is no rule which provides criteria for the
assessment of the validity of the ROR itself.
The validity of the ROR can’t be questioned; such questions r invalid
questions. However, the existence & validity of the ROR need not be
presupposed as is the case with Kelsen’s Grundnorm. Hart’s ROR is positive.
According to
Hart, there r two minimum conditions necessary & sufficient for the
existence of a legal system :
(i) PRO, which r valid according to the
ultimate ROR, must be generally obeyed;
&
(ii) ROR, which specifies the criteria of legal
validity & ROC & ROA, i.e., SRO must be
effectively accepted as common public standards of official behaviour by
its officials.
While the first contention is one which only
private citizens need to satisfy, the second condition must be satisfied by the
officials of the system. The
officials should observe ROR from internal as well as external point of view,
while the private citizens need not have an internal point of view.
External View : It is taken
by those who r concerned with the rules merely as an observer who does not
himself accept them. They r
concerned with the rules only to the extent that any violation of the rules
invites sanctions, “I was obliged to do
it, I am likely to suffer for it if ...”
Internal View : It is taken by
those members of the society who voluntarily accept the rules & uses them
as guides of their own conduct & as a criterion to evaluate other people’s
conduct.
Criticisms / Difference with Austin : The
foundation of Hart’s theory of law is made of the critical evaluation of
Austin’s theory of law.
(i) Hart said that Austin has talked about
society & not a legal system.
(ii) He
said that Austin failed to acknowledge that the laws r applicable not only to the
general members of the society, but also to the sovereign members of the society in
their role as
individual citizens.
(iii) All the laws
r not coercive commands. There r
other varieties of law, such as laws conferring legal powers to adjudicate
(public powers) or legislate or to create or vary legal relations (private
powers).
(iv) There
r legal rules like customs,
which Austin completely ignored.
(v) The analysis of law in terms of the
sovereign, habitually obeyed, failed to take into account model legal system.
(vi) While Austin’s command merely predicts the obligation, Hart’s rule
actually constructs the obligation.
(vii) In place of Austin’s monolithic model, Hart
suggests a dual system consisting of two types of rules – which he
described as PRs & SRs.
(viii) Hart
said that the
judges have a limited discretion, but, in fact, the judicial discretion
must be conceived in positivism permitting judges to look outside law for standards to guide
them while deciding cases.
(ix) Austin &
Kelsen condemned natural law, but
Hart
considers that it is necessary for law or morality to have a certain content of
natural law. Rules of morality r
implicit in Hart’s system of law of PRs & SRs.
(x) For Prof.
Dias, distinction b/w a legal & pre-legal state of affairs is not at all
clear. There is difficulty in finding ROR.
He also questioned the sharp distinction
b/w rules creating duties & rules creating powers as a legal system is constituted by their union.
The idea of obligation : The Gunman
situation : A orders B to hand over his
money & threatens to shoot him if he doesn’t comply.
According to Austin, it
illustrates the notion of obligation or duty in general. A must
be the sovereign habitually obeyed & the orders must be general prescribing courses of conduct & not
single actions. Here, the meaning of obligation lies in the fact
that B, if he obeyed,
was
obliged to hand over money.
B had an
obligation or duty to hand over money. But there is a difference b/w the assertion
that someone was obliged to do something & the assertion that he
had an obligation to do it. The first is
often a psychological statement about the beliefs & motives. Hart
says that it can be said that B was
obliged to hand over his purse, but it can’t be said that he had an obligation to do that.
A person had
an obligation, e.g., to tell the truth or report for military service. The
statement that he had an obligation is quite independent of the question
whether or not he in fact reported for service; the statement that someone was obliged
to do something normally carried the implication that he actually did it.
Hart has made
further contributions on Austin’s approach to law as also his research has
provoked many other jurists from European Countries to develop & critically
examine his ideas thereby enriching the Analytical Jurisprudence.
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.
A legal
order is comprised of norms placed in a hierarchical manner –
one norm
placed above another norm &
every norm deriving its validity from the norm
above it.
The hierarchy takes a pyramid form
& symbolizes the legal order.
The
highest norm in the hierarchy is
called the basic norm or the Grundnorm.
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.
