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Kelsen Notes

Kelsen's Pure Theory of Law argues that law should be studied and understood separately from political and social considerations. Law is a hierarchy of norms that derive their validity from a basic norm (grundnorm) that is a presupposition rather than an empirical fact. The grundnorm provides unity and meaning to a legal system and ensures its norms do not contradict. It allows identification of valid laws and which take precedence when laws conflict. While the grundnorm gives validity, its existence is a construct of juristic reasoning rather than a factual event. Kelsen's formalism aims to establish legitimate authority for law in a pluralist society by focusing only on the internal logic of legal procedures and norms.

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689 views4 pages

Kelsen Notes

Kelsen's Pure Theory of Law argues that law should be studied and understood separately from political and social considerations. Law is a hierarchy of norms that derive their validity from a basic norm (grundnorm) that is a presupposition rather than an empirical fact. The grundnorm provides unity and meaning to a legal system and ensures its norms do not contradict. It allows identification of valid laws and which take precedence when laws conflict. While the grundnorm gives validity, its existence is a construct of juristic reasoning rather than a factual event. Kelsen's formalism aims to establish legitimate authority for law in a pluralist society by focusing only on the internal logic of legal procedures and norms.

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N Farhana Abdul Halim
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Notes: Hans Kelsen:

Pure Theory of Law:


According to Hans Kelsen, the Pure Theory of Law is a theory of positive law.
-This law is only concerned with the accurate definition of law. As such he only
focuses or attempts to answer what is law and not what law oughts to be. AS he
believes that what ought to be is a science (jurisprudence) and not politics of
law.
Pure Theory of law means that it is concerned with that part of knowledge which
deals with law, excluding everything that does not strictly belong to the subjectmatter of law. That is he wish to free the science of law from any foreign
elements.
*Some supporters of Kelsen argue for the scientific character of his approach on
the ground that his theory consists of generalisations based on juridical
experience. The theory is therefore scientific because empirical and pure
because it disregards value-judgments, in common with all the sciences.
He also felt that the real science of law is lost in the process of thinking and in
enhancing its scientific status by such conjunction with other discipline.
Thus, in order to understand Kelsens Pure Theory of Law, we should be able to
understand Kelsens concern with political and social ideology, and with his
pluralist conception of knowledge; his quest for purity arose from both
methodological and political concerns.
Kelsens Social and Political Agenda:
Kelsen argues bureaucracy is essential to the modern state, but we should see it
for what it is: an empty structure of necessity, and strip the organisational form
of the state of any mystical significance or claims to historical destiny. According
to Morrison.
In Kelsens hands the states becomes a legal order, but this is neither a legal
order which automatically fulfils some functionality determined by the natural
order of things, nor it is assumed to embody our hopes and yearnings. Therefore,
to understand law in its pure structure we must strip law of its expressive
dressings where law is a simple structure of coercion, a hierarchically organised
system of (non-moral) norms laying out the conditions by which agents of the
state are entitled to enforce sanctions.
AS such, Kelsens attempts in saving Humanism in the face of pressure will
include
1) To recognise the essential freedom of man.
-Kelsen argues that social sciences once took as their subject matter a free
image of man. Which definitely reductionist methodology was imported from the
natural sciences as positivism developed. (Maybe previously man is only taken to
be seen as man in its nature state, which draws a lot of flaws that the positivist
law theory derived from.)

Therefore, man must be recognised as something more than what the positivist
empirical sciences appear to reduce them.) More than man in its natural state *I
guess*
The result of the positivist views on man is that it weakens our ability to
understand the human condition. Kelsen strives to preserve the special status of
human existence by arguing we must rigorously separate nature and society.
We face mystery and relativism because we are not able to look at the reality
and totality.
It is humanity that is real subject matter and not nature. Hence we cannot apply
the same procedures to study man as we do in natural sciences
2) To strip law of the dangers of the expressive tradition
-For Kelsen expressive reading was being co-joined to an ideology of historical
destiny and historical expressionism.
-Legal positivism gave us the idea of law as a product of human deliberation or
power, is open to being interpreted as if it implied that right must be identified
with the legal order, that is, with the rules laid down by laws, customs and
jurisprudence, and with the institution being established in the course of history
-thus legal positivism appeared to instruct the judges that they could not resist
commands of the legal order provided that the commanding authority had the
valid power to execute its orders
For Kelsen, the pure theory was a radically realistic theory of law, it asserted that
legal rules have been made by humans; they are made and not discovered by
some structure of reason founded upon historical destiny.
Mankind makes these laws, these structures of coercive power, these allocations
of rights and duties, for social purposes, for there to be justice in the world , but
their existence is no guarantee that any legal order is just. Therefore we must
sharply distinguish the procedure.

Kelsens pure theory is a formalist answer to the problem of


constructing social structure in a pluralist society.
How can we establish legitimacy for law, which ensures that our jurisprudential
does not overstep its capabilities and create new illusions?
Kelsen solution to these questions is to adopt a formalist procedure, where to
resolve epistemological uncertainty, to confront the error in the system of truth,
procedure is needed.
*If only there is a specific procedure, it is presumed that there is last resort of
any act, and in regards to this statement, there is no judicial error, no illegality
on the part of state. (Stealing the punishment would be imprisonment. Only then
there is a clear end to such law.
(Concretization: Process of procedures)

Truth therefore, is internal to the set of procedures determining it. Legal guilt or
innocence, lies in the correct procedure having complied with. The aim of
procedure is to establish truth, but absolute truth can never be reached.
Also, according to Kelsen, pure legal theory should not justify anything, as
opposed to Austin who seeks to justify defence to political economy and defence
of private property.
The Material for interpretation is found in the legal systems notion of
legal validity
-legal norms received their validity from higher and more general norm until we
reached to the most basic norm called the grundnorm, which imparts validity to
the whole legal order.
-It is also the hierarchy of norms as a hierarchy of directions to apply for
sanctions.
The grundnorm or basic norm is a presupposition of thought rather than
empirical event or being.
*Reason and validity of such laws.
To make sense of legal order we must presuppose that every legal order has a
basic norm. In the case of some legal orders, we may trace our chain back to a
constitution and find that it has been made in accordance with a yet earlier
constitution, but ultimately there will be appoint in which we cant go. It is not the
first constitution which serves as the basis of validity but a more basic norm
does. The basic norm is that acts ought to be done in accordance with the
historically first constitution and is not the fact of the first constitution. Even the
constitution itself cannot be the basic norm as it is factual document or set of
understandings, rather than a norm. Instead the basic norm is acts ought to be
done in accordance with the constitution.
There is a presupposition or extra lega
Validity and Efficacy of Basic Norm:
Kelsen says that basic norm is efficacious. However, it is important to note that
you cant have validity without efficacy, but you can have efficacy without
validity. Thus effectiveness is not sufficient condition for validity of a legal order,
it is only a necessary condition.
The Uniqueness of the basic norm is that it ensures all norms that it validates
does not contradict one another. The basic norm unifies and gives meaning to a
set of contradictory norms.
If it appears to invalidate one another, then one must be invalid. The old law will
lose its validity if the later law is valid. (This explains the operation of repealing
laws.)

Kelsen Theory
Explain importance of basic norm.

What is basic norms:


Juristic consciousness: analyse the juris. The legal scientist who finds the jurisctic
consciousness (norms.)
Validity of legal norms.
Primary and legal norms
Discover delicts
Critics:
Grundnorm is discovered by jurist, so what is the efficacy of such norm.
Only depends on one person. The critic to kelsen, when does the grundnorm
change.

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