Authors: Divya Bisht
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This paper deals with the origins of the many, frequently quite unfavourable, criticisms made of Kelson\'s pure theory of law and reveals key characteristics of several stages in its growth; point out the importance of Merkl and Verdross\' work in developing the pure theory of law as well as the driving forces behind Kelsen\'s attempts to formalise jurisprudence (the science of law) in order to set the stage for an accurate and unbiased study of positive law; he also assesses the significance of Kelsen\'s normativisms and offers his opinions on how the pure theory of law should be developed going forward and its impact on legal system and its application along with the case analysis. Research Methodology: The project is basically based on the doctrinal method (Descriptive and Explanatory) of research as no field work is done on this topic. Aims & Objective: In depth analysis of the concept of Pure Theory of Law to know what the theory states and whether it is truly applicable in the modern legal society, also to know about the grounds upon which it is being criticized by other jurists. Further, the Aim of this paper is to what implications it carries and contributions it has made in Indian legal jurisprudence. Hypothesis: Kelsen’s pure theory of law is not a balanced view of what law is or what it ought to be because it speaks about some wings of law which are coercive in nature, but those laws can never treated as laws if they lack morality or reason in it. Research Question Q.1Whether the basic norm is a positive legal norm or a norm situated \"outside\" the legal System? Sources of Data: The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project- BOOKS, JOURNALS, ARTICLES, WEBSITES, and JUDGEMENTS BY APEX COURTS.
I. LITERATURE REVIEW
A. Pure Theory of Law- Hans Kelsen
Pure Law Theory describes law as a set of arbitrary norms established by the state on the validity of a commonly accepted basic principle, such as constitutional supremacy. It denies wholly self-supporting any from metaphysics, philosophy, ethics, sociology, or natural sciences. Beginning with the medieval reception of Roman law, traditional jurisprudence has maintained a dual system of “subjective” law (the rights of a person) and “objective” law (the system of norms). Throughout history this dualism has been a useful tool for putting the law in the service of politics, especially by rulers or dominant political parties. The pure theory of law destroys this dualism by replacing it with a unitary system of objective positive law that is insulated from political manipulation.
B. Hans Kelsen's Pure Theory of Law Legality and Legitimacy: Lars Vinx
Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defence of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. L. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.
C. Reine Rechtslehre: Introduction to Legal Problems
The 'pure legal theory' presented by Hans Kelsen in 1934 is one of the legal key texts of the 20th century. In it, for the first time, Kelsen systematically developed his right theory of morality, on the one hand, and the norm of fact, on the other hand, the ideology-critical legal theory.
If you are up to date on the structure and validity of law and the peculiarity of law, in short: if you want to think about the legal aspects of law, you cannot avoid the 'pure legal theory'. Rechtslehre ', which has been translated into around a dozen languages worldwide
D. V.D. Mahajan's Jurisprudence and Legal Theory
V.D. Mahajan’s work is a legal classic and has gone into several editions and reprinted a number of times. Written in a very simple and clear language it covers the subjects of Jurisprudence and Legal theory thoroughly. The author has been successful in achieving his aim of providing an elementary book in a simple and understandable language. Index and the suggested readings, given separately at the end of each chapter, for further material on the topics discussed, add to its utility and supply additional food for study and thought about law and legal science. There is a dearth of writing by Indian authors on jurisprudence and legal theory. V.D.Mahajan's book makes a valuable contribution in filling up this gap. While discussing each theory the author has authenticated the subject with reference to all important writers and theoreticians on each of them. The wide ranging references on each topic are valuable for any further study on the subject.
In generic term, the law is a system of rules and regulations applied by social institutions to guide human behaviour; although the term "law" does not have a generally accepted definition. Laws can be passed by legislators through laws that create laws, the executive through decisions and regulations, or judges through binding precedents. The constitution and the rights enshrined therein can influence the formation of laws. The law shapes politics, economics and society in various ways and mediates relations between people. Legal theorists hope to gain a deeper understanding of the nature of the law, legal reasoning, legal systems and legal institutions. Pure legal theory is a theory of general law that meets the requirements of legal positivism. As such, his goal is to understand the law as it is, not as it should be, and his method is structural analysis. In particular, it provides us with a range of basic legal concepts such as "legal system", "norm", "right", "duty", "sanction" and "imputation" that we can use when trying to scientifically understand and describe the law. One could say that the aim of pure theory is to lay the theoretical foundations of other legal disciplines, such as contract law, constitutional law, legal history, comparative law, etc. The formidable Austrian lawyer and philosopher Hans Kelsen (1881-1973) came up with the idea of a pure legal theory. Kelsen started his long career as a legal theorist in the early 1900s. According to Kelsen, the traditional philosophies of law of the time were hopelessly compromised by political ideology and moralization on the one hand, or attempts to reduce law to the natural or social sciences on the other. He found these two reductionist efforts seriously flawed. Instead, Kelsen proposed a "pure" legal theory that would avoid reductionism. The jurisprudence proposed by Kelsen "is characterized as a" pure "theory of law because it focuses on cognition that is only law-oriented" and this purity serves as a "basic methodological principle" According to Professor Dias, Hans's theory of pure law Kelsen stands for development in two different directions. It marks the most refined development of analytical positivism to date. It also marks a response to the wastage of various approaches that marked the opening of the 20th century. This does not mean that Kelsen has returned to ideology. In fact, he tried to banish all kinds of ideologies and present an image of the law, strict in its abstraction and strict in its logic. Kelsen's analysis of the formal legal structure as a hierarchical system of standards, and his emphasis on the dynamic nature of this process, certainly alleviates and avoids some of the confusion of Justinian's system. However, this Kelsen theory has been criticized for many reasons. This criticism is deepened in the work of this project. Kelsen has been criticized by many jurists such as Julius Stone, Freeman, etc., but pure legal theory remains valid in the democracies of the modern world governed by their respective constitutions.
III. PURE THEORY OF LAW
Kelsen writes in his book Reine Rechtslehre 1934 (Pure Theory of Law) “ It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation, to the level of a genuine science, a science of mind.”
Analytical positivism was put on another footing by Hans Kelsen in the 20th century through his "Pure Theory of Law". It was "adapted, developed and placed on a theoretical-philosophical basis by him and his disciples are collectively called the" School of Vienna ". Exactly defines the law based on formal criteria and the facts commonly followed by people Analytical positivism focuses on the law as it is and not on what the law should be. We see that legal science is a mixture of psychology, sociology, ethics and political theory, with his theory, Kelsen wanted the law not to be affected by all of these factors, although he firmly believed that the law study had a deep connection with other fields of study. analytic, the law is not influenced by habit, precedent or legislation, but rather by the command of political authority Vertical legal theory is also called so because only writing the law and trying to eliminate it from this description everything that is not strictly a law: the objective is to free the law from extra-terrestrial elements Wayne Morrison, describes pure legal theory as a theory of positive law. Morrison states “As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question, what is the law? But not the question, what ought it to be? It is a science and not a politics of law.” As a positivist, Kelsen believed that the existence, validity and authority of law had nothing at all to do with such non-legal factors as politics, morality, religion, and ethics
Salient Features of Kelsen’s Pure Theory of Law
IV. IMPACT OF THE PURE THEORY ON LEGAL SYSTEMS AND ITS APPLICATION
Kelsen's theory has been challenged in numerous courts. In a revolutionary period in countries where a legal order is challenged by a revolutionary force, pure theory has become reality. The revolutionary group argued that a change in the Grund standard can actually be observed. Kelsen explains; if they succeed, if the old order ceases and the new order becomes effective because the people whose behaviour governs the new order behave largely according to the new order, then this order is considered a valid order. On the contrary, if the revolutionaries fail, if the order they tried to establish remains ineffective, their enterprise is not interpreted as a legal legislative act, like the creation of the constitution, but as an illegal act, like the offense of treason, according to the old constitution of the monarchy and its specific basic standards.
From what Kelsen says, all it takes to recognize the new core standard as valid seems to be that there is a certain level of support - that is, it is considered effective. But in real cases where Kelsen's ideas have been discussed, they don't seem to have been the basis for decisions.
A. Case Analysis on Basis of Kelsen’s Philosophy
Madzimbamuto v LardnerBurke (1968)
Privy Council considered whether the actions of Rhodesian Government in making a Unilateral Declaration of Independence (UDI) were consistent with the constitution laid down by the British 1961. The Privy Council ruled that the actions under UDI were illegal and that regime was illegal. The court had been referred to Kelsen?s theory, but they found that in this particular case it did not aid them. Here, the case was not decisive of the essentially political question as to whether a change in the Grundnorm had been effected.
Amrawati and Anr. (Smt) VS State of U.P.
On 15th October 2004, a bench consisting of seven judges considered the following questions:
B. Analysis On The Basis Of Kelsen’s Philosophy
Hans kelsen, one of the most eminent jurists had put forward the theory called ‘The Pure Theory of Law’. He said that in a country there is hierarchy of norms and there is a law making process which is done by the highest political authority.
In a country, there is hierarchy of laws and if there’s any conflict between a higher law and a lower law then the higher law will prevail. In our constitution also such a hierarchy is followed:
Lakanmi and Kikelomo Ola v The Attorney-General of the Western State (1970)
The Supreme Court of Nigeria refused to apply Kelson?s theory of revolutions. It was held that the military coup of 1966 was not a true revolution, so the legislative capacity of a new institution was limited by reference to the pre-existing constitution.
Mitchell v Director of Public Prosecutions
The Court of Appeal in Grenada raised four conditions to regard the revolutionary government as legal;
Basic Norm- Gurdnorm
The law according to Kelsen is a system of norms. He maintained that legal norms are created by acts of will or in other words, products of deliberate human action, as opposed to moral norms which is by God. In relation to this, the pure law theory takes only into consideration only the norms created by the acts of human beings, not norms which come from other superhuman authorities. Central to the Pure Theory of Law is the notion of a “basic norm” – The Grundnorm — a hypothetical norm, presupposed by the jurist, from which in a hierarchy all ‘lower ’ norms in a legal system, beginning with constitutional law, are understood to derive their authority or ‘abidingness’. In this way, Kelsen contends, the abidingness of legal norms, their specifically‘ legal’ character, can be best understood without tracing it ultimately to some superhuman source such as God, personified Nature or — of great importance in his time a personified State or Nation.
When laws are described as “commands” or expressions of the “will” of the legislature, and when the legal order as such is said to be the “command” or the “will” of the State, this must be understood as a figurative mode of speech. As usual, as analogy is responsible for the figurative statement. The situation when a rule of law “stipulates”, “provides for”, or “prescribes” a certain human conduct is in fact quite similar to situation when one individual wants another individual to behave in such-and-such a way and expresses this will in the form of a command. The only difference is that when we say that
Certain human conduct is “stipulated”, “provided for”, or “prescribed” by a rule of law, we are employing an abstraction which eliminates the psychological act of will which is expressed by a command. If the rule of law is a command, it is, so to speak, ad psychologised command, a command which does not imply a “will” in psychological sense of the term. The conduct prescribed by the rule of law is “determined” without any human being has to “will” it in a psychological sense. This is expressed by the statement that one “shall”, one “ought” to observe the conduct prescribed by the law. A “norm” is a rule expressing the fact that somebody ought to act in a certain way, without implying that anybody really “wants” the person to act that way.
As per Hans Kelsen the normativity and legitimacy of law doesn't need to be gotten from something outside the lawful framework, for example, God, profound quality or majority rule government. Laws become substantial standards by the power of a fundamental standard inside the legitimate framework, which says that the law should be complied. Kelsen Claims that every legitimate System involve an essential standard of this sort, since it is important for attorneys to surmise the exist substance of such a standard to comprehend the material they are working with as standards, and to comprehend a lot of standards as a lawful framework. As indicated by Kelsen the fundamental standard of a specific legitimate framework is the hotspot for the normativity and legitimacy of all standards having a place with that framework. It is the essential standard that makes a legitimate framework out of a lot of standards, and it is the fundamental standard that makes a standard an individual from a lawful framework. This hypothesis is recognizable to each researcher of lawful hypothesis. It has been examined at classes and educated at graduate schools everywhere throughout the world. There are barely any single thoughts in twentieth Century lawful hypothesis that have pulled in more consideration than the possibility of the essential standard. All things considered, it stays a puzzle. Kelsen Claims that all standards of a lawful framework infer their normativity and legitimacy from the fundamental standard, however I'm not catching that's meaning? What does the fundamental standard give that makes the law standardizing and substantial? What's more, for what reason is it fundamental? In what sense would the laws of a specific legitimate request need normativity and legitimacy without an essential standard?
Kelsen claims that the fundamental standard of a legitimate framework is the rule that chooses whether a specific lawful standard has a place with that System, simultaneously; he asserts that the essential standard of a lawful framework isn't one of the lawful standards having a place with that framework. He guarantees that the essential standard isn't placed in any capacity. These two cases go poorly with one another either. The facts demonstrate that, in each legitimate request, a lot of models is polished that choose what standards have a place with that framework. A portion of these measures are composed into the constitution and others are unwritten. In either case these rules are standards. They are standards that are polished in a specific lawful request, and they are accordingly clearly positive standards that have a place with that legitimate framework. The hypothesis of the essential standard is even self-opposing with regards to the plan of what the fundamental standard says. Kelsen claims that the fundamental standard can be illuminated as standard that says that the law should be obeyed and maintained, however he additionally asserts that the essential standard of certain lawful framework is the standard that chooses whether standards "have a place" to that framework.
A standard that only expresses that the law should be complied doesn't have the limit of isolating standards that have a place with a specific legitimate framework from standards that don't have a place with that framework. So as to choose whether a standard has a place with a legitimate framework one needs a model for participation, for example that a standard has a place with Indian Law in the event that it has been instituted in the Indian Parliament. An essential standard that just expresses that the law should be obeyed involves no such rules. The hypothesis of the essential standard comprises of parts that don't fit with one another. For some odd reason, Kelsen never attempted to address this genuine defect.
Criticism of the pure Law theory:
A few issues have been related with the hypothesis yet not every one of those issues are precisely expressed emerging from a generous misconception of the theory and in the disarray in the brains of legal scholars concerning the qualification between constitutions for example and a basic norm. One model is the Black's Law Dictionary, which notes that the Grundnorm "might be an intricate arrangement of law making, for example, a constitution". Constitution as will at the appropriate time become clear, by the retribution of Kelsen, isn't a basic norm. It is not necessarily the case that there are no issues for like each perplexing hypothesis the Pure Theory has come in for its reasonable portion of criticisms. Professor Stone was a key pundit of Kelsen. He contended that Kelsen's distinction among blissful and dynamic essential standard speaks to a qualification between unlawful and legal regularizing orders. Ruler Lloyd sees that Kelsen's investigation of the formal structure of law as a various levelled arrangement of standards and his accentuation on the dynamic character of this procedure are surely lighting up and dodge a portion of the perplexities of the Austinian framework. The most evident yet least referenced calculated issue with the Pure Theory is that for a positivist hypothesis that is worried about the law for what it's worth, it is something of an incongruity that for all the posing, the essential standard that approves every other law and norms ought to be gotten not from law all things considered, not from positive law however from, out of every other place on earth, a non-law or extra- law source. This may from the start sound like "sense of self" analysis yet not to be excused with a rush of the hand is that it recognizes the significant pretended by non-law components in any legitimate request yet especially in the legitimacy to be credited to positive law. However positivists draw back at the proposal that non-law components may validate the law.. It appears surely that it must be either thought must be conceded that most, if not the various touted approving standards, regardless of whether they are constitutions, give the feeling that they harbour this irresolute trademark. Moreover, in current legitimate frameworks particularly those with a written constitution, the legitimacy of laws are not tried against the measures of the essential standard but against the fundamental law, which is the constitution. The fundamental law offers definite guidelines of validity as prerequisite for all laws while the dull and obscure presentation of the basic norm can barely offer such an ascertainable and evident norm. There is legitimacy to this contention however the recommendations and representation somewhat further ahead, of inferred positivity of the essential standard, will undoubtedly disparage a little from it. There is the absence of thought for "non - law" factors in trying to characterize law. In distinctly overlooking these factors, which might be sociological and chronicled, it, similar to its other positivist brethren, offers unquestioning prevalence over structure over substance and importance.
Whether the basic norm is a positive legal norm or a norm situated "outside" the legal System?
A law can be seen from two different points of view. It very well may be seen according to a perspective "outside" the lawful System or according to a perspective "inside" the legitimate framework. From an outside point of view the law is comprehended as the result of an occasion in the political arrangement of a state. This is how laws are seen in political theory, sociology of law and open decision hypothesis. According to a perspective inside the legitimate framework a law is comprehended as a piece of a lawful request. This is how laws are comprehended by law researchers. At the point when a law is seen from an outside viewpoint its motivation is to understand the impacts that were really aimed by the individuals who authorized it. Its regulating significance comprises of the different thought processes that individuals had for establishing it. These thought processes can be very different in nature. They are once in a while charitable. A Member of Parliament may, for instance, vote in favour of a bill since he accepts that it will advance general well-toll. Be that as it may, they can likewise be superbly prideful. A Member of Parliament may decide in favour of a bill since he accepts that it will expand his odds of being reappointed. Kelsen hence discusses the regularizing importance of laws, saw according to a perspective outside the lawful framework, as "emotional significance". At the point when a law is seen from inside the legitimate framework its regulating importance is deciphered in an unexpected way.
The attorneys applying and deciphering the law sees it as having a reason, yet this "lawful reason" doesn't concur with the genuine intentions of the individuals that authorized it. The lawful reason for a law is set up as indicated by the standards of arbitration that are polished in the lawful System, and these standards don't permit distress genuine thought processes to be viewed as a major aspect of the law's motivation, for instance, no lawful request known to me rehearses standards of settling that would permit the re-appointment of a specific Member of Parliament to be viewed as a component of the reason for a law. The regulating significance of a law saw according to a perspective inside the legitimate framework is segregated from its regularizing importance as it is observed from outside the lawful framework. Kelsen makes this differentiation by saying that a law's standardizing significance, according to a perspective in the lawful framework the law's "goal meaning". This implies the fundamental standard as a subjective normativity condition makes it conceivable to comprehend laws as having "target meaning". The fundamental standard is a gadget that makes it conceivable to see laws according to a perspective inside the lawful framework. Truly, the facts demonstrate that "the essential standard" is a simply formal hotspot for legitimate normativity, and, simultaneously, a gadget that gives an imaginary will behind the law, and, simultaneously, a standard that makes different standards substantial in an inside lawful sense, however this doesn't imply that the hypothesis of the fundamental standard is ambiguous. These depictions are faces on a similar coin. One of the incredible accomplishments of the hypothesis of the essential standard is that it shows how "normativity", "the will behind the law" and "interior lawful legitimacy" are combined in the act of law. That The Pure Theory of Law just explores "what the law is", and doesn't concern "what the law should be", isn't tricky. This desire doesn't struggle with the essential standard being an ethical standard. A positivistic examination can similarly also portray positive ethical quality as it can depict positive law. To see that lawful officials accept that they have moral obligation to maintain the law doesn't induce that legitimate officials really have this obligation. What's more, to see that most Citizens submit themselves to a standard that says that the law should be obeyed doesn't construe that they should submit themselves to this standard. What is dangerous, in any case, with Kelsen's positivistic desire, is that he doesn't just guarantee that the reason for his examination doesn't have an ethical measurement, yet that the essential standard itself is liberated from moral import also the basic norm of the positivistic Pure Theory of Law is not a norm of justice, and it affords no moral-political justification of the positive law.
The unadulterated hypothesis of law of Hans Kelsen, paying little heed to its cynicism towards the normal law teaching, started the demeanour that law must be introduced all things being equal, is constrained, regardless of whether it needs to or not, likewise to deal with the investigation of the relating substance of regular law, which in present occasions under the name \"human rights\" make a fundamental indispensable piece of the current worldwide law. Despite the fact that the hypothesis has its own scrutinizes, it additionally has its admirers in the field of jurisprudence. Kelsen acquainted another measurement with legitimate hypothesis by convincing us to think about the qualification, and also the connection, among reality and standard, between administrative act and its regularizing impact. Kelsen offered an internally reliable model of the lawful framework that in certain regards mirrors the instinctive considering legal counsellors and administrators. Following a law’s legitimacy back to the constitution is typical lawful explanation. So is the possibility that legitimate laws structure an inside predictable arrangement of laws. Kelsen?s hypothesis, not at all like his predecessors?, perceived the laws of crude social orders and of the universal network as law. Reactions of Kelsen are regularly aimed at the ideas and the interior consistency of his hypothesis. Pundits may scrutinize the ampleness of his hypothesis to clarify legitimate frameworks as they really exist. Kelsen?s thought of law as a standard to which an authorization is joined doesn\'t effectively represent a few sorts of laws. Procedural and evidentiary laws, laws making associations, laws giving freedoms and rights and laws repealing other laws fit awkwardly inside the unadulterated hypothesis. His contentions for the intelligent solidarity of the international and national legitimate requests are unconvincing right now in history. Even however its mind boggling and hazy in certain territories and have numerous reactions focused on it, it’s an undeniable certainty that Kelsen speculations of law have improved the field of jurisprudence but Kelsen’s theory of law was a major revolution but then just like any other theory even this theory has got certain criticisms. I feel that kelsen has tried to contradict the fundamental norms. He has even called the basic norm as “hypothetical”, how can a society be based on a hypothetical norm? His concept of grundnorm is static, because he did forgot the fact that the grundnorm should change with the modern times and thus Kelsen’s pure theory of law is not a balanced view of what law is or what it ought to be because it speaks about some wings of law which are coercive in nature and those laws can never treated as laws if they lack morality or reason in it.
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