Lectures 12 to 15

Dr. Manoranjan Kumar

Assistant Professor
Department of Law
Chanakya National Law University, Patna
Nyaya Nagar, Mithapur, Patna
Email: manoranjan.cnlu@gmail.com
manoranjankumar@cnlu.ac.in
 Background
• Very Crucial to understand.
• Vienna School of Law.
• First exposition of his Pure Theory of Law came in 1911
• Post First World War
• Newly created States along with those re-formed adopt written
constitutions.
• Attention of the jurists and lawyers towards the idea of fundamental
law.
 Why and How a Pure Theory?
• Separated though in terms of time and space, Hans Kelsen displays a
zealous hostility to natural law philosophy just like Austin.
• Deeper analysis reveals that moving from Austin to Kelsen means
moving into the realm of universalist theory of law.
• Essence of Kelsen’s theory is to have a universal validity.
• The theory claims to be pure in the sense that it is not distorted by
reference to the existential facts of a particular or specific legal
system.
• The theory is rather based on the inner essence of specificity of law.
 Distinguishes Laws of Natural and
Normative Science
• Makes a sharp distinction between the sphere of “is” and the sphere of
“ought to be”
• “Is” sphere is that of natural sciences e.g. Physics, Chemistry, Biology,
Psychology, Psychiatry etc.
• Kelsen rejects them on the ground that they are descriptive of the
sequence of cause and effect in the universe of existence.
• Examination of the operation of the law in society which is “sociology of
law” more often termed sociological jurisprudence is also beyond the
scope of pure theory of law.
• Law in the lawyers senses belongs to the category or sphere of “ought to
be”. Law in the lawyers sense is normative and not descriptive.
 Normative Character of Law
• Law of the natural science: “When A is, the B is”
• Law in the normative sense: “When A is, then B ought to be”
• By Law in the lawyer sense, we mean something ought to be.
• This normative character of law that is its oughtness is one of its
specific and essential characteristics.
• However, there are other bodies of rules which also have the quality
of oughtness. E.g. Ethics.
 Separation of Factual “Is” from Legal
“Ought”
• Ought laws cannot be derived from the is laws.
• According to Kelsen, absolute separation of the spheres of the
normative and existential laws is essential for the purity of the
science of law.
 Pure Theory is a Theory of Positive Law
• Pure theory of law deals with law as it is and not with what the law
ought to be.
• Kelsen’s Pure science of law is not concerned with whether the law is
good or bad, but exclusively with the question what is law?
• In other words, it does not deal with what the law ought to be but
only deals with the law as it is.
• But in so far as the pure theory of law deals with law of the sphere of
“ought to be” and not the law of the sphere of “is”, in other words in
so far as it deals with the law of the normative character, it deals with
the “ought” addressed by the law as it is.
 “Oughtness” is not the Monopoly of Law
• As discussed above “oughtness” is one of the essential characteristics
of the law in the lawyer’s sense.
• However, “oughtness” is not the monopoly of the law in the lawyers
sense.
• There are also the “oughts” of ethics, religion, grammar, etc.
• Kelsen separates legal normativeness from all other oughtness such
as ethico-politico normativeness or for that matter oughtness of
grammer or religion.
 Source of the Validity of Legal Ought
• Very simple to understand.
• All the norms derive their validity in the ultimate analysis from the
“Basic Norm.”
• Validity of a norm never comes from an “Is” fact.
• If something becomes a Norm so that people ought to follow that, it
is always due to some anterior norm which confers that kind of
meaning of “oughtness” on that thing.
• That anterior norm in its turn is valid only because some further
anterior norm provides that that specific anterior norm ought to be
followed.
 Source of the Validity of Legal Ought
• In other words each norm derives its validity i.e. oughtness from
some higher norm, that higher norm in turn derives its validity i.e.
oughtness from some still higher norm and that still norm in its turn
derives its validity from yet another still higher norm.
• Eventually we reach to a norm whose validity cannot be traced to any
precedent or anterior norm.
• This norm whose validity cannot be traced to any preceding norm is
Grundnorm or basic norm.
 Grundnorm
• Where does the Grundnorm derive its validity from?
• According to Kelsen, the Grundnorm of a legal system is the starting point,
just like Sovereign is the starting point for Austin.
• Question of the Validity of a Grundnorm is a meta-legal question, according
to the pure science of law.
• The validity of any norm in the ultimate analysis is derived from the
Grundnorm, to seek the validity of the Grundnorm is an impossible task.
• Grundnorm is neither valid nor invalid, it is a hypothesis the usefulness of
which depends on the extent to which the other norms can be derived
from it.
 Nature of the Grundnorm
• Pure theory of law does not dictate or control the basic norm.
• Choice of the basic norm and through that basic norm the rest of the
norms are left to the particular legal system.
 Principal Doctrines of the Pure Theory
• Basic Norm as the Supreme Delimitation of Competence Within a
Legal System
• Pure theory of law has produced new insights about the structure of
the legal system.
• We have seen, the legal validity of any norm in the ultimate analysis is
derived from the basic norm.
• Basic norm may control or delimit the norms derivable from it in
three principal ways:
• May apportion the Norm-making competence (Articles 245 & 246)
• May regulate the Norm-making procedure (Parliamentary Procedure)
• May Limit the Content for the valid norms (Article 13)
 Principal Doctrines of the Pure Theory
• Delimitation of Competence By the Intermediate Norms
• Like the basic norm, the intermediary norms also have the same
quality in relation to the norms inferior to it.
• May apportion the Norm-making competence
• May regulate the Norm-making procedure
• May Limit the Content for the valid norms
• The entire legal system therefore, is a hierarchy or pyramid of norms.
• The process of deriving the successive levels of norm from the basic
norm is called the concretisation of the legal system.
• Entire hierarchy or pyramid is called the legal order.
 Principal Doctrines of the Pure Theory
• Norms as Depsychologised Commands
• According to Kelsen, law is essentially a coercive order.
• Just like Austin, Kelsen also believes that, the element of coercion is
of the essence of “lawness”.
• Austin viewed sanction as operating through the subject’s fear of evil.
For Kelsen, all that is required is that the norm must provide a
definite sanction. The psychic effect of the sanction is altogether
irrelevant.
• Whereas Austin views law as the command of a personal sovereign,
for Kelsen, legal norm is an impersonal hypothetical judgment.
• According to Kelsen legal norm is a de-psychologised command.
 Principal Doctrines of the Pure Theory
• Concept of Duties, Liabilities and Rights
• The notion of duty is implicit in the very concept of the norm.
• A duty is merely a norm looked at from the standpoint of the person
to whom it is directed.
• For Austin, duty and liability to sanction inhere in the same person
whereas for Kelsen it is not necessarily so.
 Principal Doctrines of the Pure Theory
• Concretisation of the System of Norms
• While Austin’s analytical jurisprudence can be termed to be a static theory
of law, Kelsen’s pure theory of law recognises that this static theory has to
be supplemented by a study of its dynamics that is the process of its
creation.
• Unlike other normative orders, law regulates its own creation.
• We have seen how the basic norm and the intermediary norms determine
the norm inferior to them by designating their source, stipulating their
procedure and delimiting their contents.
• Popular custom, administrative law, judge made law fits snugly into the
legal order of pure theory of law.
• Kelsen’s theory of law descends down to the very last operation.
 Principal Doctrines of the Pure Theory
• Contract as a Concretisation of Norms
• Contract has been recognised as an example of private law as
opposed to public law.
• Pure theory of law views terms of contract as merely norms and as no
different from the norms of criminal law or constitutional law for that
matter.
• Validity of the terms of contract is also derived from the basic norm.
• Parties ought to follow the terms of the contract because there is a an
anterior norm that requires them to follow them.
• Power to enter into contract is tantamount to delegation of legislative
power.
 Principal Doctrines of the Pure Theory
• Legal Personality as a Point of Operation of Legal Norms
• Traditionally rights and duties are viewed as the chief attributes of
personality.
• Pure theory regards rights and duties as legal norms looked at from
different frame of reference.
• Pure theory also furnishes a simple theory of legal personality
• Traditionally, person is defined as an entity capable of rights and
duties. The case of human beings as natural person furnishes no
problem.
• But the nature of corporate personality has never been free from
difficulty. E.g., Realist Theory, Fiction Theory, Concession Theory etc.
 Principal Doctrines of the Pure Theory
• The popular perception regards existence of an entity, as an essential
feature of corporations as legal persons.
• Pure theory of law challenges this notion and believes that legal
person consists merely of the collection of legal right and duties that
operate at a given point of time.
• Legal personality consists neither more nor less than the bundle of
rights and duties which constitute the unit of operation of norms.
• Legal order may confer personality where it will.
• Legal personality should not be defined by reference to either
physical or psychical entities.
 Principal Doctrines of the Pure Theory
• Renders difference between Private and Public Law Untenable
• Distinction between private and public law is untenable in theory as
well as practice, says Kelsen.
• Private law is not distinguishable from the public law according to the
pure theory of law as both derive their ‘oughtness’ from the same
basic norm.
 Principal Doctrines of the Pure Theory
• Denial of the existence of ‘sovereign person/s’ and ‘state as a distinct
entity’
• Differs radically from Austin.
• We’ve already seen, all legal persons are merely creations of the legal
order.
• All persons derive their power from the same basic norm, be it the
King, the Minister or a Common Man.
• This way, the pure theory of law also avoids the question whether
Austin’s sovereign is bound by law?
• One can say all members of the legal order are bound by law.
 Limitation of the Pure Theory of Law
• Impurity of the Basic Norm
• As far as norms other than the Grundnorm of any legal system are
concerned, Kelsen rightly claims purity, as his theory has excluded
reference to things other than law viz. social facts, ethics, morality
justice etc.
• Thus, once a Grundnorm is there, derivation of the successive
intermediary norms are pure.
• However, the Grundnorm itself remains impure. In so far as the
concept of Grundnorm itself is the most impure what to speak of the
purity of the other norms derived from it. Their purity is a limited
one.
 Limitation of the Pure Theory of Law
• Relation of the Basic Norm with Sociological and Ethico-Politico Facts
• The Basic norm is to some extent derived from the facts of social
existence, it is not entirely determined by them.
• In other words, the basic norm partly reflects dependence on the
facts of social existence and partly reflects the desired departures
from them as well.
• In so far as the basic norm is not wholly determined by the bare social
facts, it would be determined by ethico-political considerations,
sociological observations and interpretations.
• As a natural corollary, all the norms are influenced by them.
 Limitation of the Pure Theory of Law
• Basic Norm and the Theory of International Law
• Pure theory of law cannot decide whether international law is
primary or the municipal law is primary.
• Whether the basic norm of international law is to be found in the
municipal law of each state, yielding as many systems as there are
states or whether the basic norm of municipal law is to be found in
the international law, converting the law amongst nations into one
legal system.
• Kelsenites are divided as to what is the basic norm of international
law.
 Limitation of the Pure Theory of Law
• Professor Laski comments, “the pure theory” is an “exercise in logic
and not in life.”
• Every application of the pure theory, every hypothetical choice of a
basic norm, presupposes inquiries beyond the ambit of the pure
science into sociological facts and ethico-politico valuations.
• Pure science of law can have no concrete application to any actual
law until these inquiries are adequately made.
Thank You