Hans Kelsen

 Introduction:

Kelsen was a legal positivist and also known as moral relativist. As he thought natural law
was a subjective concept which lack certainty.

Argued that

1) Law has been contaminated by political ideology

Kelsen’s theory is known as the ‘pure theory of law’ as the name suggests it is free from
any morals or ethics., focused on law alone and it serves as the basic methodical
principle. Kelsen’s theory is built upon the concept of ‘pre-supposition’ which was
initially put forward by Emmanuel Kant. Moreover, similarities can be seen between the
theory of Kelsen and his predecessors i.e. Austin and Bentham over the concept of
‘coercion’ and an imperative theory as a whole. Kelsen’s theory has two facets first, the
‘pure theory and the grundnorm’ and second being ‘the theory of revolution’.

 Pure theory:

In order to proceed, one needs to highlight that why Kelsen has referred his theory as a
‘pure theory’. As mentioned earlier, this is because his theory severs the link between law
and morality thus, it is devoid of any moral and is a pure positivist theory. Self-contained
and not reliant on extra-legal values (e.g., Economics and Marxism) Pure theory is primarily
concerned with the question that what the law ‘is’ rather what the law ‘ought’ to be. Kelsen
also differentiates between the substance and the form of law and as per him even though
the question of substance may seem to be a question of what law ‘ought’ to be it is still not
mentioning the ‘content’ of law. Furthermore, as mentioned earlier the concept of
‘coercion’ is a vital component for Kelsen’s theory. However, Eugene Ehlrich has criticized
this stance by Kelsen and claims that coercion is unnecessary in law as people don’t follow it
because of its coercive nature rather out of their will. However, Kelsen responds to this by
reiterating the importance of coercion as if it wasn’t present there would not be compliance
of laws.

- Primary norm  Regulates the conduct of citizens.

Laws directed to officials

In order to provide a better description of coercion concept, he establishes that laws are not
aimed or directed towards the individuals rather to officials. This is done so, to ensure better
application and compliance with laws. Kelsen gives example of a statute and says that it is
directed towards the officials because they are the ones who will ultimately enforce the
laws thus it would be better if laws are directed towards them rather than individuals.
However, this point can be criticized as it is said that as per Kelsen only procedural
requirements of laws are to be fulfilled and he completely overlooks the substance of laws
which is integral to uphold some extent of moral element in laws. Penner has criticized
Kelsen’s theory by calling it “an arid exercise” in reality. Kelsen claims his theory is already a
positivist one and he has severed the relationship between law and morality and the
concept of coercion has nothing to do with justice and morality.

Application of Pure theory (two types of norms and delict)

The application of pure theory can be illustrated by highlighting the two components of it
i.e. the laws operate in a coercive manner and laws are applied by officials who have the
authority for the application of sanctions. If the laws lack the element of sanction they
would not constitute as laws rather just ‘power conferring rules’ and as per Kelsen they hold
no relevance. As per Kelsen the law is directed towards the enforcers of the law i.e. the
officials hence, when an individual does an act which is against the laws the officials are
supposed to sanction them. Kelsen gives two types of norms in his theory i.e. primary norms
(legal norms) that are directed to officials and secondary norms (moral norms) that are
addressed to people.

According to Kelsen, since, the law is not directed towards the general public hence, if
someone then commits an act which is contrary to the laws (non-compliance with a
secondary norm) that would not amount to a breach of that law rather a ‘delict’. The breach
of law can only be committed by the official (to whom the law has been directed) if they fail
to apply sanctions when needed (breach of a primary norm) this is known as the ‘x=y’
concept given by Kelsen. Validity refers to the existence of given standard (norms), norm
imposes a legal obligation which must then be followed by the individuals.

This approach is however, criticized as putting too much of responsibilities on the officials as
there are numerous ‘delicts’ that take place on daily basis behind the closed doors and are
not reported to the officials thus, that would mean that officials could be in breach of law
without them knowing. However, it can be argued that this stance would be applicable for
underdeveloped countries but there are not enough resources to ensure its application.

Grundnorm

It establishes the content and verifies the additional content derived from it.

The next extremely important feature of Kelsen’s theory is the “grundnorm”. As per Kelsen
norms are not automatically validated rather they acquire validity from any previous norm
higher in the hierarchy and the chain continues backwards until a point is reached where no
previous norm can be traced that is when the grundnorm comes into play hence, he defines
grundnorm as “transcendental epistemological postulate” which simply means, “the theory
of knowledge that stands outside the legal system”. It should however, be noted that the
grundnorm is not the first norm or constitution through which the chain of norms has stared
rather, it is a “presupposition” validating the first constitution. Complete Kelson concept of
law.

Penner has criticized the validity of a grundnorm by claiming that if the higher source is ‘a
normative statement’ how would it provide objective validity to other norms? That would
pertain to derive an ‘ought’ from an ‘is’ proposition. A possible counter can be that
grundnorm is solely a presupposition that the first constitution back in chain is valid and it
doesn’t require natural law concepts while doing so.

 Principle of Legitimacy/ Theory of Revolution:

The next essential component of Kelsen’s theory is ‘the principle of legitimacy’ also known
as ‘theory of revolution’. As the name suggests the theory is related to the change of regime
or government. Under this, Kelsen highlights how a new government can be validated after
a change. As per principle of legitimacy, the more the ‘effective’ the new government is the
more it would be regarded as valid. Then what happens to the old government? It would no
longer remain valid as the basic norm which validated it seizes of exist. Now, for the
validation of the new government presupposition of a new basic norm is needed.

Add criticism from notes revolutionary governments/ institutions can be replaced if they do
not comply.

As per Kelsen, the validity of the new regime can be presupposed by looking at how
effective it is and that in turn can be seen from whether the ‘officials have accepted the new
government’. However, effective is not the only sole criteria to presuppose the validity of a
regime, as per Kelsen, along with effectiveness there is something else needed as well to
validate the new regime. Kelsen has not spelled out what that other thing is but he has told
that alone effectiveness is not adequate.

Application of Theory of revolution

The application of theory of revolution can be illustrated through the example of the
‘Marshall law 1999’ that was imposed in Pakistan by Pervez Musharaf, they relied on
Kelsen’s effectiveness concept by saying that the new regime was valid since, the officials
had accepted it.

Given the incomplete nature of the principle of legitimacy, many started believing that the
‘other component’ which could be coupled with effectiveness to validate a regime was that
‘if the general public or masses accept the new government’. And application of such a
stance was seen in State v Dosso PLD, here a military coup was declared valid by using
Kelsen’s theory that ‘new regime would be valid if accepted by the officials’. The same
stance was followed in Madzimbamuto v Lardner Burke, where though the government
was initially declared has illegal, it was still given recognition for the sake of ‘necessity’.
However, this stance was quashed in the case of “Asma Jilani v The Government of
Punjab”, where it was established that Kelsen’s theory is simply a mere legal thought and it
doesn’t present legal norms for the validation of regimes.

Criticism of theory of revolution

Kelsen’s theory can be criticised as, he has himself left his theory incomplete by not giving
the other pre-requisite that validates a new regime. Moreover, he has not made it clear that
acceptance of how many officials would amount successful fulfilment of ‘effectiveness’.
Kelsen theory is believed to go against the positivism as; the main feature of his theory is
presupposition which can only be regarded as philosophy and not ‘a fact’. Kelsen is also
criticised for failing to draw a distinction between criminal and civil law since, as per him a
person responsible for homicide is on the same page as the one who has to pay damages.
But a counter can be that laws governing both acts are formulated by the same legislature.
Hart also has criticised Kelsen for overly stressing on officials and consequently limiting the
law only to them rather individuals since, as per Hart in any legal system the public holds
more example than the officials (cricket match example). Hart ignores the fact that his own
theory of RoR is dependent upon the ‘internalization by officials’. Joseph Raz criticises the
grundnorm by saying that it doesn’t provide a definition of the law.

International law

Thus far, the grundnorm has been seen as a component of national law; however, the link b
etween national and international law is complex, and positive traditionalists deny the idea
of the international legal order.

Aimed for the universal acceptance of the international, legal order, valid legal order in the
legal system must not conflict with each other.
If all states adopt a legal order, national and universal law will be regarded a unified, monist
system.

Kelsen argues for the presence of a global norm, as he criticises dualism in favour of
monism.

opposes the idea of the sovereign as an entity and argues for the presence of the state as a
separate identity from the law, the state is equal to law according to him the state is a
“system of human conduct and a computive order”.

Existence of institutions are based on norms so can they be separated?