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Hans Kelson Pure Theory - MTSL

This document contains a certificate certifying that Abdul Mannan, a student at Dispur Law College under Gauhati University, submitted an assignment report on Hans Kelsen's contribution to the analytical school of jurisprudence and his pure theory of law. It includes an acknowledgement thanking various individuals for their guidance and support during the completion of the assignment. Finally, it outlines the table of contents which lists topics covered in the report such as an introduction to analytical jurisprudence and Kelsen's pure theory of law, its key features and implications.

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169 views11 pages

Hans Kelson Pure Theory - MTSL

This document contains a certificate certifying that Abdul Mannan, a student at Dispur Law College under Gauhati University, submitted an assignment report on Hans Kelsen's contribution to the analytical school of jurisprudence and his pure theory of law. It includes an acknowledgement thanking various individuals for their guidance and support during the completion of the assignment. Finally, it outlines the table of contents which lists topics covered in the report such as an introduction to analytical jurisprudence and Kelsen's pure theory of law, its key features and implications.

Uploaded by

Abdul Mannan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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1

2021-2022
2

Certificate

Certified that this is a bona fide report of the assignment entitled


KELSEN’S PURE THEORY OF LAW (Contribution of Kelsen to
Analytical school) of the subject Modern Theory of State and Law
submitted by Abdul Mannan of 1st Semester, Roll no - 02, LLM,
DISPUR LAW COLLEGE, under GAUHATI UNIVERSITY, towards
the partial fulfilment of requirement for the 1st Semester
examination 2021 of the session 2021-2022.

(Dr. Gargee Dutta Paul)


Principal
Dispur Law College
3

Certificate

Certified that this is a bona fide report of the assignment entitled


KELSEN’S PURE THEORY (contribution of Kelsen to Analytical
School) OF LAW of the subject Modern Theory of state and law
submitted by Abdul Mannan of 1st Semester, Roll no - 02, LLM,
DISPUR LAW COLLEGE, under GAUHATI UNIVERSITY, towards the
partial fulfilment of requirement for the 1st Semester
examination 2021 of the session 2021-2022.

(Jyotshna Saloi)
Guide
4

ACKNOWLEDGEMENT

The assignment report on the topic Contribution of Kelsen to


Analytical School of Jurisprudence (Kelsens pure theory) of the
subject Modern Theory of State and Law is the outcome of guidance
moral support and devotion bestowed on me throughout my work.
For this I acknowledge and express my profound sense of gratitude
and thanks to everybody who have been a source of inspiration
during my seminar preparation. I would like to sincere phase of
thanks to our Principal Dr. GARGEE DUTTA PAUL Ma’am for
providing the opportunity and my seminar guide Ms. Jyotshna Saloi
Ma’am for providing help and guidance in completion of the
assignment whenever needed. Without their help this project would
have been incomplete one. I would also thank my friends and family
who have helped me in the completion of my project.

THANK YOU
Abdul mannan
LLM 1st semester
Roll No- 02
Dispur Law College
Gauhati University
5

Table of Content

Certificate
Acknowledgement
Sl. no Title Page no
1. Introduction 6
3. Purpose of Analytical Jurisprudence 6-7

4. Object of Analytical School 7


5. Importance of Analytical Jurisprudence 7
6. Exponents of Analytical school 7
7. Introduction- Kelsen’s analytical school 8
Kelsen’s pure 8-9
theories
8. Salient features of Kelson's pure theory of law / 9-10
Essential of Kelson’s Pure Theory of Law
9. Implications of the Pure Theory 10

10. Merits of the Pure Theory of Law 10


11. Criticism of Pure Theory 10
11. Bibliography 11
6

Introduction:
Name of School: Analytical school of Jurisprudence: -
The Analytical School is also known as Austinian School since this approach was established
by Jhon Austin. It is also known as the imperative school because it treats law as the command
of the sovereign. In the words of Prof. Dias, the Positivist movement started at the beginning of
the 19th Century. It represented a reaction against the a priori method of thinking which turned
away from the realities of actual law in order to discover in nature or reason the principle of

universal validity. Actual laws were explained or condemned according to those principles .

The analytical school is known by different names. It is called positive school because the
exponents of this school are concerned neither with the past nor with the future of law but with law
as it exists, i.e., with law “as it is” (positum). The school was dominant in England and popularly
known as English school. Its founder was John Austin and hence it is also called Austinian
School. This school takes for granted the developed legal system and proceeds logically to analyse
its basic concept to bring the relation to one another. This concentration on the systematic
analysis of legal concept has given to this school the name of analytical jurisprudence. It is to
understand the structural nature of legal system, and such an approach to law is commonly
termed analytical and such writers are called analytical positivists.

PURPOSE OF ANALYTICAL JURISPRUDENCE:

The purpose of analytical jurisprudence is to analyse without reference either to their historical
origin or development or the ethical significance or validity which are the first principles of
law. According to Salmond, a book of analytical jurisprudence will deal with such subjects as:
i. an analysis of the concept of law,
ii. an examination of the relation between civil law and other forms of law,
iii. an analysis of various constituent ideas of which the complex idea of law is made
up such as the state, sovereignty, and administration of justice.
iv. an account of legal source from which law proceeds.
together with an investigation of theory of legislation, judicial precedent, and
customary law,
v. an inquiry into the scientific arrangement of law into distinct departments along
with an analysis of distinctions on which the division is based;
vi. an analysis of the concept of legal rights along with the general theory of the
creation and transfer of rights;
7

vii. an investigation of the theory of legal liability in civil and criminal cases ;
viii. an examination of other relevant legal concepts. 4

OBJECT OF ANALYTICAL SCHOOL

1. to systematize exposition of legal ideas pertinent to adequate and long lived system
of law
2. to endeavour to define legal terms
3. to explain the connotation and relation
4. To gain an accurate and intimate understanding of the fundamental working
concepts of all legal reasoning.

IMPORTANCE OF ANALYTICAL JURISPRUDENCE:

1. It brought precision in legal thinking.


2. It provides clear definite and scientific terminology.
3. It excluded all external considerations which fall outside the scope of law.

Exponent Jurists of Analytical School: The prominent exponents of this school are Bentham,
Austin, Holland, Salmond, Hans Kelsen, Gray, Hohfield and Hart.
8

Hans Kelsen (1881-1973)-


Introduction:
Hans Kelson was Austrian Jurist. He was born at Prague in Austria in 1881 and was a
professor of law at the Vienna University. She was also the judge of the supreme
constitutional Court of Austria for 10 years during 1920 to 1930. thereafter he shifted to
England he came to the United States and work as a professor of law in several American
Universities and authored many books. He released the "Theory of law entitled "The General
Theory of Law and State 1945. it drew the attention of the modern jurisprudents and came
to be known as Kelson's Pure Theory of Law.

Name of Legal Philosophy: Pure theory of law

Kelsens Pure theory of Law


According to Kelson a theory of law should be uniform. It should be applicable to all times
and in all places. according to him, Law must be free from ethics, politics, history,
sociology etc in other words, it must be pure.

Pure theory is closed to some other theories -


Kelson and Austin both are positivists. Hans Kelson's Pure theory of law is a part of
analytical positivism. Kelson explains his theory by the method of analogy. It deals with
the existing fact for example what law is and not as it ought to be.

The theory of law must be distinguished from this law itself -


Law itself consists of a mass of heterogeneous of rules and the function of the theory of
law is to relate them in a logical pattern and to recognize them in single ordinarily unit

Theory of law should be uniform -


According to Kelsen, a theory of law should be uniform. for example - it should be
applicable at all times and in all places

Law is Normative Science -


9

According to Kelson law is a normative science and it is not a natural science based on
cause and effect like law of gravitation.
Theory of Law must be pure -
According to Kelson's pure theory of law, it must be free from Ethics, Morality, Politics
Sociology, History etc it must be pure.
According to Kelsen law is a normative science -
Jurisprudence is the knowledge of norms. Law is a normative science. A norm of law is
simply a preposition in hypothetical from. A norm of law has a distinct feature. They are
different from science norm.

Hierarchy of normative relations -


For Kelson law is the knowledge of hierarchy of normative relations. He does not want to
include in his theory what ought to be but for him, law is a theory of analysis an
analysis that is free from all ethical and political judgment of value

Salient features of Kelson's pure theory of law / Essential


of Kelson’s Pure Theory of Law
(1) Reduce chaos and multiplicity to unity- The aim of the Pure theory of law is to reduce
chaos and multiplicity to Unity
(2) Legal theory as a science of what law is, not what ought to be - Pure theory of law
deals with the knowledge of what law is, and it is not concerned about what law ought to
be.
(3) Law as normative science - Theory considered as a normative science and not a
natural science.
(4) Effectiveness of not out of scope - Legal theory as a theory of norms is not concerned
with the effectiveness of legal norms
(5) It is formal theory confined to a particular system of positive law as actually in
operation.
(6) The relation of legal theory to a particular system of positive law is that of possible to
actual law
10

Implications of the Pure Theory


Law and state are not two different things-
No difference between Municipal and international law
No Difference between legal person and natural person
Supremacy of International law

Merits of the Pure Theory of Law


(1) Kelson recognized International Law as a law
(2) Pure theory of law is best for peaceful change
(3) It makes the most refined development of analytical positivism
(4) Kelson's concept of legal system is clear original and striking
(5) Kelson has explained that no law can prevail country to grundnorm or
constitution
(6) Kelson's Pure Theory of Law is the most outstanding theory of law

Criticism of Kelsons Pure theory law


Grund norms vague and confusing-
Purity of nerve cannot be maintained
Natural law is ignored
Supremacy of international law
No practical significance
11

Bibliography

Primary source:

1. Dias; Jurisprudence; Fifth edition, lexis-nexis


2. Mahajan, V.D; Jurisprudence and Legal Theory; fifth edition;
eastern book company
3. Dr. Paranjape, N.V, Studies in Jurisprudence and Legal Theory.
4. Prof. Nomita Aggarwal, Jurisprudence and Legal Theory.

Secondary source:

https://people.brandeis.edu/~teuber/Summary_of_Hans_kelsen_s_pure
theory of law.pdf

1. https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?articl
e=3938&context=vlr

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