Sr no Topics Page No TABLE

OF 1. Introduction and meaning of Jurisprudence

2. Definitions
3. Nature and scope of Jurisprudence
4. Utility of Jurisprudence
5. H.L.A. Harts concept of Law
6. Hans Kelsons Pure Theory of Law
7. Comparative study of Hart and Kelsons
theories.
8. Conclusion
9. Suggestion
10 Bibliography
CONTENTS
 SNDT WOMENS UNIVERSITY

LAW SCHOOL

NAME- JAGRUTI VIJAY PARASHARE

CLASS- LLM 1ST YEAR, SEMESTER 1

ROLL NO- 34

SUBJECT- JURISPRUDENCE

TOPIC- COMPERTATIVE STUDY OF HLA HART AND KELSON THEORY OF

LAW

SUBMISSION MONTH & YEAR- SEPTEMBER 2015

NAME OF THE PROFESSOR- PROF. RAJESH WANKHEDE

SIGNATURE -
 INTRODUCTION AND MEANING OF JURISPRUDENCE:

Jurisprudence in simple words means, philosophy of Law. The word Jurisprudence has
been derived from a Latin word Jurisprudential, which means Knowledge of law.
The word Jurist means law and prudential means knowledge, science or skill. Thus
Jurisprudence signifies knowledge or science of law and its application. Jurisprudence
covers the whole body of legal principles. It could be seen that in England, in the
formative era of the common law, the term Jurisprudence was being used in generic
sense to include the study of various areas of law. However in the beginning of 19 th
century, theories propounded by many Jurists gave a definite meaning to the term
Jurisprudence. The concept of law has assumed different meanings at different times.
There cannot be a commonly agreed definition of law and Jurisprudence. The evolution
of a society being of a dynamic nature, it is very difficult for a definition of law to get
recognition of all the Legal system. The concept of Jurisprudence has a long history of
evolution beginning from classical period to 21 st century modern Jurisprudence with
number of changes in its nature in various stages of its evolution. The rapid changes in
modern times have given rise to new problems and issues, which are to be tackled by law
through practical approach. While doing so, the modern Jurisprudence has to take into
consideration the social-economic and political condition, changing pattern for the
society which has widens its scope as a source of law. As seen above Jurisprudence in its
widest sense means knowledge of law but in its limited sense it means evolution and
explanation of general principles upon which actual rules of law are based. It is mainly
concerned with the rules of external conduct which people are compelled to obey.
Therefore sometimes it is said that Jurisprudence is that science which gives us
knowledge about law but the term law we always use in its abstract sense i.e. not in the
sense of concrete statutes but in the sense of principles underlying law. Thus, there are
various branches of law existing in modern legal system such as contracts, torts, crimes,
properties, labor etc. In Jurisprudence we have to study the basic principles of each these
branches of law and we are concerned with the detailed rules of these laws. Jurisprudence
examines the general principles of law therefore Jurisprudence may be considered to the
study and systematic arrangement of the general principle of law. Jurisprudence in its
sense may be regulated as the philosophy of the law dealing with the nature and the
function of law. In the modern times the term Jurisprudence oftenly is used because of
rapid social changes, as functional Jurisprudence. So far India is concerned; the Indian
Jurisprudence has its origin in the ancient concept of Dharma which was considered to be
the best way to discipline in conducting themselves in the society. However as the society
progress the concept of Jurisprudence has changed radically. India, being a Welfare State,
a new Indian Jurisprudence needs to be developed so as to ensure that law becomes an
effective instrument to bring social change. Law plays a significant role in sustaining a
stable social order. The word jurisprudence is derived from a Latin maxim as referred
'jurisprudential' but owes its origin to Rome. It is a combination of two words 'jurist'
which means 'law' and 'prudence' which means 'knowledge' or 'skill'. Therefore
jurisprudence is the study, knowledge, skill and theory of law. Jurisprudence includes
principles behind law that make the law. Scholars of jurisprudence, also known
as jurists or legal theorists (including legal philosophers and social theorists of law), hope
to obtain a deeper understanding of the nature of law, of legal reasoning, legal
systems and of legal institutions. Modern jurisprudence began in the 18th century and
was focused on the first principles of the natural law, civil law, and the law of
nations. General jurisprudence can be divided into categories both by the type of question
scholars seek to answer and by the theories of jurisprudence, or schools of thought,
regarding how those questions are best answered. Contemporary philosophy of law,
which deals with general jurisprudence, addresses problems in two rough groups.

1. Problems internal to law and legal systems as such.

2. Problems of law as a particular social institution as it relates to the larger political

and social situation in which it exist.
Answers to these questions come from four primary schools of thought in general
jurisprudence:
Natural law is the idea that there are rational objective limits to the power of legislative
rulers.
The foundations of law are accessible through reason and it is from these laws of nature
that human-created laws gain whatever force they have.

Legal positivism, by contrast to natural law, holds that there is no necessary connection
between law and morality and that the force of law comes from some basic social facts.

Legal realism is a third theory of jurisprudence which argues that the real world practice
of law is what determines what law is; the law has the force that it does because of what
legislators, barristers and judges do with it. Similar approaches have been developed in
many different ways in sociology of law.

Critical legal studies are a younger theory of jurisprudence that has developed since the
1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and
can be best analyzed as an expression of the policy goals of the dominant social group.
Also of note is the work of the contemporary philosopher of law Ronald Drowkin who
has advocated a constructivist theory of jurisprudence that can be characterized as a
middle path between natural law theories and positivist theories of general jurisprudence.
A further relatively new field is known as therapeutic jurisprudence, concerned with the
impact of legal processes on wellbeing and mental health.
The English word is based on the Latin maxim jurisprudencia-jurist is the genitive form
of jus meaning "law", and Prudential means "prudence" (also: discretion, foresight,
forethought, circumspection; refers to the exercise of good judgment, common sense, and
even caution, especially in the conduct of practical matters). The word is first attested in
English in 1628, at a time when the word prudence had meaning of "knowledge of or
skill in a matter".

DEFINITIONS OF JURISPRUDENCE:

The term Jurisprudence has been defined differently at different times because of
different methods of inquiry and approach to the study of the subjects. Some of the
definitions of the term Jurisprudence given by various eminent Jurists as under:

1. Julius Stone: Jurisprudence is Lawyers extraversion. It means Jurisprudence

involves examination of precepts, ideas and techniques of law by lawyers in the light
of disciplines other than the law.
2. Ulpian: Jurisprudence means knowledge of law. He was the Roman Jurists who
defined Jurisprudence as, the observation of things, human and divine, the
knowledge of just and unjust.
3. Gray: Jurisprudence is the science of law, the statement and systematic arrangement
of the rules followed by the Courts and the principles involved in those rules.
4. Salmond: Jurisprudence is science of the first principles of the Civil Law. Civil Law
consists of rules applied by the Courts in the administration of Justice.
5. Austin: Jurisprudence is philosophy of positive law. He was the first jurist to make
jurisprudence as a science. He emphasized that positive law is only proper law as it is
given by political superior having power to make it.
6. Holland: Jurisprudence is the formal science of positive law. According to him
jurisprudence should only concern itself with the basic principles of concepts
underlying in any natural system of law.
7. Dr. Allen: Jurisprudence is a scientific synthesis of the essential principles of law.
8. H.L.A. Hart: A legal system consists of primary and secondary rules. These rules
explain the nature of law and provides key to the science of jurisprudence. He
 viewed Jurisprudence as a science of law in a broader perspective by co-relating law
and morality.
9. Roscoe Pound: Jurisprudence is a science of law, a body of principles recognized
and enforced by public and regular tribunals in the administration Justice. He
concentrated on the functional aspect of law and impact of law and society on each
other.
10. Dr. M.J. Sethna: Jurisprudence is a study of fundamental legal principles including
their philosophical, historical and sociological bases and analysis of legal concept.

From the above discussed definitions of various Jurists it is pertinent to note that there no
commonly agreed definitions of Jurisprudence. Each jurist is guided by his own
consciousness, but since the conception of the term law till beginning of the 20 th century,
a new approach to the study of law in relation to society is given. Some jurists therefore
treat law as social engineering an instrument to bring a social change. The function of
law is supplement to the social sciences.

SCOPE OF JURISPRUDENCE

In jurisprudence we mainly study the nature of law, which includes its definition,
classification, its nature and purpose, the nature of rights and duties and other questions
related to it. Jurisprudence includes all concepts of human order and human conduct in
state and society. According to justice P.B.Mukherjee, jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural study of man in society. It
includes political, social, economic and cultural ideas. It covers the study of a man in
relation to state and society.

According to the great jurist Radcliffe, Jurisprudence is a part of history, a part of

economics and sociology, a part of ethics and philosophy of life.

Salmond observed In jurisprudence, we are not concerned to derive rules from authority
and apply them to problem; we are concerned rather to reflect on nature of legal rules, on
the underlying meaning of legal concepts and on essential features of legal system.

Following are the subject matters of jurisprudence:

1. Sources - The basic feature of the legal system are mainly to be found in its
authoritative sources and the nature and the working of the legal authorities behind
these sources. Hence, they are obviously become the content of jurisprudence. It
includes the study of sources of law such as customs, legislation and precedent,
 the merits and de-merits of codification of laws, method of judicial interpretation
and reasoning, an enquiry into the administration of justice.
2. Legal Concepts - It includes analysis of legal concepts such as rights, obligations,
property, ownership, possession, acts, negligence, legal personality and the related
issues. The study of these abstract legal concepts furnishes a background for the
better understanding of law in its various forms.
3. Legal Theory Legal theory also constitutes one of the components of the
Jurisprudence. Legal theory is concerned with law as it exists and its functions in
the society, the manner in which law is made and enforced and also the influence
of social opinion and law on each other. Legal theory also relates law with other
branches such as religion, philosophy, ethic, politics etc. and pursues its study in a
wider social perspective. Legal theory comprises philosophy of law. It seeks to
examine and analyze the philosophical contents of law. It attempts to answer what
is law in order to clarify, the most of the legal concepts. Legal theory is one aspect
of Jurisprudence. Jurisprudence covers a wider field of study. It involves an
investigation of law, whereas legal theory is an attempt to answer what is law.

UTILITY OF JURISPRUDENCE:

There is always confusion as to the practical utility of Jurisprudence as a subject, as it is

said that jurisprudence is an abstract and theoretical subject but this view is rejected by
various jurists. Salmond pointed out that jurisprudence has its own intrinsic interest like
any other subject. The legal research on jurisprudence may have their effects on
contemporary socio political thought and at the same time may themselves be influenced
by these ideologies. Jurisprudence has its own practical applicability. It seeks to the
rationalize concepts of law which enables us to solve the different problems.
Jurisprudence has a great educational value. The logical analysis of legal concepts widens
the outlook of the lawyers and it sharpens their logical technique. Holland observed that
Jurisprudence throw light on the basic ideas and the fundamental principles of law in a
given society. Therefore some of the jurists call it, the eye of Law. Jurisprudence helps
the Judges and the lawyers in ascertaining the true meaning of the law passed by the
legislature by providing the rules of interpretation. It furnishes them to lacunae
shortcomings and defects in the laws framed by the legislature. The defect can be cured
through their judicial interpretation. The study of jurisprudence helps the students in
rationalization the thinking and prepares them for the good civil life. The knowledge of
law and the legal helps them to face exigencies of human life. Jurisprudence is helpful to
legislators who play a vital role in the process of law making. The study of Jurisprudence
helps them to understand the technicalities of the law and legal precept and thereby make
the study of law easy and interesting. According to R.W.M. Dias, the study of
Jurisprudence provides an opportunity for the lawyers to bring theory into focus and
makes it practically applicable to life.

H.L.A. Harts concept of Law:

Prof. Herbert Lionel Adolphus Hart was born in 1907. He worked as a professor of
Jurisprudence of Oxford University during 1952-68. Then he joined as principal of
Brasnose College, Oxford. He expanded his legal theory based on the relationship
between law and society. He favored analytical approach to law for a better
understanding of it but his notion of law is altogether different from its predecessors
because he believed that law, coercion and morality and relate social phenomenon having
sociological implications. His classic work, the concept of law was written in 1961 in
which he has criticized Austins Command theory of law.

LAW AS A SYSTEM OF LAW: Prof. Hart had inherited the legality of Austin, Bentham
and Kelsen. But he did not try to define law like his predecessors. He tried to lay down
the concept of law and while doing so, he elucidated the concept of rule of law.
According to him a legal system of rules are social in nature for two reasons, A) They
regulate the conduct of member of society and that is why they are social in nature. B)
They are derived from Human social practices. When these rules are derived from the
social practice, the sociological element is injected into it. Though Hart self-contradicted
to himself, he accepted social nature of law. There are other rules also, for e.g. rules of
morality but he started that law be separated from morality. He also stated that legal rules
as well as moral rules impose some sort of duty to act accordingly, but the only difference
is that legal rule are organized and systematic whereas moral rules are not so.

PRIMARY RULE AND SECONDARY RULES: According to Hart, law is a system of

two types of rules and the union of these two rules provides a key to the science of
Jurisprudence. These rules are:

1. Primary Rules
2. Secondary Rules

According to Hart, these rules are social in nature for two reasons-
 1. They regulate the conduct of member of society and that is why they are social in
nature, and
2. They are derived from human social practice.

When these rules are said to be derived from the social practice, a sociological element is
injected into law. Hart accepted social nature of law. There are other rules also for e.g.
rules of morality but according to Hart the legal rules and even the rules of morality
impose some sort of duty to act accordingly. The only difference is that the legal rules are
organized and systematic whereas moral rules are not so.

PRIMARY RULES: Primary rules impose duties for e.g. law of crime, law of torts
or proper laws which are binding. The primary rules which impose duty upon
individual are binding because of the popular acceptance such as rules of Kingship
and family sentiments etc. According to some jurist under the primary rules,
individuals are required to do or abstain from doing certain acts, whether they wish
to or not. These Primary Rules are unofficial rule and hence they suffer from three
major defects, namely 1) Uncertainty 2) Static Character and, 3) Inefficiency.
SECONDARY RULES: Secondary Rules are conferring powers. These rules which
confer power to facilitate the individual to act upon. These rules enable legislature to
modify their policies according to the needs of society. For e.g. law of contract
which confer the power to enter into contract on a person who is person in the eyes
of law.

All the three organs of the Government, legislature, executive and Judiciary comes under
secondary rules. The primary and secondary rules are not separable. It is a combination to
both which leads to the existence of legal system. Hart had given more emphasis on
secondary rules. He justified three types of secondary rules:

A) Rules of Adjudication: It confers the power to the Judiciary. Here is the judiciary is
not used in its strict sense. Administrative adjudication also comes in its purview, e.g. Tax
Tribunal, Industrial Tribunal, etc. They also pronounce judgment. These rules of
adjudication confer powers of giving judgment and enforcement to judiciary and public
officials.

B) Rules of change: Rules of Will, Contract; properties, etc are rules of change which
change relationship. These rules also confer the power on the legislature to affect any sort
of changes in accordance with specified procedure. Article 368 of Indian Constitution
consists of both power and procedure to amend the Constitution (Keshwanand bharti,
1973)
C) Rules of Recognition: It determines the criteria governing the validity of the rules of
legal system. It recognizes the validity of all other rules of legal system. It is a basis on
which the validity depends. Here we can see the similarity with Grund Norm of Kelson
with the rule of Reorganization of H.L.A. Hart. Every legal system consists of all above
primary and secondary rules. Hart laid down two necessary conditions or criteria for the
existence of legal system. A rule of behavior, which is valid according to the ultimate
criteria of validity, e.g. rules of recognition. It must be generally obeyed. It means rules of
laws, which are valid only to be obeyed. In other words those rules that are not
recognized as valid need not to be obeyed. Another feature of these criteria is the term
generality. It means that the rules should be obeyed by each and every one of the
societies. All people must or should obey the rules for the existence of legal system. It is
binding on all. There is no choice. The criteria is lacking in Kelsen theory. This is a
radical difference between Kelsen and Hart, theory. Rules of change and adjudication
must be effectively affected as common public standards of official behavior by its
officer. It is mandatory on Public Officer. It means that whatever may be judgment of
Tribunal or amendment made to the Constitution shall be accepted by the Public
Officials. It is common public standard for official behavior. Among these two rules the
first one is addressed to public and second one is addressed to public officials. In case of
public officials the first one is also equally applicable because they are basically citizens.
In case of second condition public officials must act in accordance to the contents of
those rules. Since the condition confers first power on public officials, it does not mean
that they are free to do any act according to their wishes. These two rules are critical
appraisals of ones own behavior. One has critically appraised him or her. To this Prof.
Hart gives a name Internal point of view. Here apparently, this notion of Hart is similar
to Fluters "Internal Morality

HARTS VIEW ON LAW AND MORALITY:

H.L.A. Hart does not denounce the role of natural law in this positivism. Unlike Austin
and Kelsen, Hart contends that it is necessary for law and morality to have certain
elements of natural law as a logical necessity. Thus morality is implicit in Harts positive
law that he describes as union of primary and secondary rules. As member of society,
individual feels morally bound to abide by these rules both as a matter of duty and
obligation. Hart, therefore asserts that law and morality complementary and
supplementary to each other. In his view, there are four attributes of morality, namely 1)
importance 2) immunity from deliberate change, 3) voluntary character of moral offences
and 4) forms of moral pressure, which separate it from etiquette, custom and other social
rules. The rule of sexual behavior provides the best example of morality. Harts analysis
of legal rules is different from Austins concept of legal rules. According to Austin, the
concept of State was imposed and one was obliged and compelled to obey it. Law
prescribes not a command but standard of conduct. This standard is adhering to, not only
because there is a sense of obligation to adhere to it but also because there is an
expectation that others have some obligation to adhere to it. Therefore, even person who
cannot be compelled to obey the law is still considered as having an obligation to obey.
According to this view, law is concerned with obligations rather than coercion. According
to Hart relying on his theory, a state can be compared with a club. The state officials are
compared with officials of the club. Secondly this theory can be compared with a game of
cricket. The umpires can be compared with the officials of the state.

THERE ARE SOME DEMERITS OF THIS THEORY, as under,

The most important demerit of Harts theory is that he has compared this theory
with the game of cricket. The State officials can make law whereas the umpires
cannot frame the rules by themselves. The umpire is sometimes the members of the
committee who frame the rules.
Another grave demerit is that Hart has compared a club with a State. This is a wrong
analogy as in the case of state, the set of officials are the State Officials, whereas the
officials of the club are not authorized to make laws for the entire State. Secondly,
the law of club is private law. Whereas the law of State is the law of land. Thirdly, if
a person disobeys the club rules, the membership can be removed, whereas in case
of State when a person disobeys the law he is not removed from the State but he is
punished.
Hart has not considered any discretionary powers, doctrine in his theory.
Secondary rules are not laws but powers and duties. Hart has confused between
powers and laws.
Harts explanation of pre-legal and legal society seems a little vague as Hart says
that if secondary rules do not exist, that society suffers from drawback and at the
same time he said that having secondary rules is a luxury.

THERE ARE SOME MERITS OF THIS THEORY AS WELL, as under

Harts theorys greatest merit is that it has discouraged speculative thinking.

Hart follows a logical method and achieved clarity of thought and analysis.
Harts theory explains why the law is applicable even to it framers.
Hart has elaborated an important aspect of legal system, i.e. is the State officials
derive power or authority from law.
Hart has co-related the concept like power, law and study.
Harts primary rules prevail in the form of fundamental rights. Secondary rules prevail in
the form of powers of the different organs of the state. In the Indian legal system the law
is also applied to its framers. The power of officials is depend upon law. Hart is a
supporter of analytical positivism but his concept of rule of law is different from Austin
and Kelsen. The contribution of Hart to jurisprudence is undoubted of immense value.

LEGAL POSITIVISM:

Legal positivism is a school of thought of philosophy of law and jurisprudence, largely

developed by eighteenth and nineteenth-century legal thinkers such as Jeremy Bentham
and John Austin. However, the most prominent figure in the history of legal positivism
is H.L.A. Hart, whose work The Concept of Law caused a fundamental re-thinking of the
positivist doctrine and its relationship with the other principal theories of law. In more
recent years the central claims of legal positivism have come under attack from Ronald
Dworkin. Although the positivist position is complex, the central claim of legal
positivism is the following: "In any legal system, whether a given norm is legally valid,
and hence whether it forms part of the law of that system, depends on its sources, not its
merits. In the positivist view, the "source" of a law is the establishment of that law by
some socially recognized legal authority. The "merits" of a law are a separate issue: it
may be a "bad law" by some standard, but if it was added to the system by a legitimate
authority, it is still a law. The Stanford Encyclopedia of Philosophy summarizes the
distinction between merit and source like so: "The fact that a policy would be just, wise,
efficient, or prudent is never sufficient reason for thinking that it is actually the law, and
the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited (ordered,
decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is
the view that law is a Social construction. Legal positivism does not claim that the laws
so identified should be followed or obeyed or that there is value in having clear,
identifiable rules (although some positivists may also make these claims). Indeed, the
laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a
result there may be no obligation to obey them. Moreover, the fact that a law has been
identified by a court as valid provides no guidance as to whether the court should apply it
in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is
a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal
positivists believe that intellectual clarity is best achieved by leaving these questions to a
separate investigation.

HANS KELSENS CONCEPT OF LAW:

Hans Kelsen, (1881-1973) was another jurist who has the credit of reviving the original
analytical legal thought, in the 20th century through his Pure theory of law. He was born
at Prague in Austria in 1881 and was a professor of law at the Vienna University. He was
also the judge of the Supreme Constitutional Court of Austria for 10 years during 1920-
1930. Thereafter, he shifted to England. He came to the United States and worked as
professor of law in several American universities and authorized many books. He was
emeritus professor of Political Science in the California University when he expounded
his pure theory of law which is considered to be Kelsens unique contribution to legal
theory.

KELSENS PURE THEORY OF LAW

A legal theory, in most cases, takes inspiration from the local legal system. It analyses
and seeks to give a juristic basis of such legal system and tries to present solution of the
problems. Before discussing the Pure Theory of Law it is necessary to throw some light
on the background of this theory. The Pure Theory of Law, which is also knowns as the
Vienna School of legal thought was propounded by Hans Kelson, a professor in Vienna
(Austria) university. Thought the first exposition of theory took place in 1911, it came in
full bloom in postwar Europe. The national and international conditions at that time may
throw light on the basis and necessity of this approach. The Austrian Code, in force at
that time was prepared hundred years ago when the Natural Law theory was at its
height. Through the natural law was rejected in England as early as in the 19 th century, in
the continent it had its footing till the beginning of the 20 th century. New theories in the
20th century started inflicting serve blows on Natural law theories. The Pure Theory of
Law also, rejected the idea of natural law. Secondly, kelsens theory came also as a
reaction against the modern schools which have widened the boundaries of jurisprudence
to such an extent that they seem almost coterminous with those of social sciences.
Thirdly, after World War I most of the countries in the Continent adopted written
constitutions. The idea of a fundamental law as the basis of the legal system reflected in
them. The idea of Grundnorm which may be said to be the foundation stone of the Pure
Theory and the definition of the law as the hierarchy of norms seem to be inspired by
the above principle. Fourthly, the death and destruction caused by the diabolical activities
of nations in the World War made the people to think about some effective international
organization which may control such activities. The primacy of international law which
the Pure Theory seeks to establish can be explain in this context. Pure theory is close to
some other theories. Both Austin and Kelsen are positivists. Pure theory of Kelsen is as
part of analytical positivism. Kelsen explained his theory by method of analogy. He deals
with Is existing fact, i.e., what law is, and not as it Ought to be. The theory of law
must be distinguished from the law itself. Law itself consists of a mass of heterogeneous
of rules, and the function of theory of law is to relate them in a logical pattern and to
organize them in single orderly unit. It shall be applicable at all times and in all places.
Thus, Kelsen is an advocate of general jurisprudence, and he was able to arrive at
generalization, which holds well over a very wide area. According to Kelsens theory, law
must be pure. It must be free from ethics, morality, politic sociology and history. It must
be pure. According to Kelsen, law is a Normative Science. Jurisprudence is knowledge
of norms, i.e., law is normative science. A norm of law is simply a proposition in
hypothetical form. A norm has a distinct feature. They are different from normal science
norms. Law norms are ought norm, law does not attempt to describe what actually occur
but only prescribe certain rules. It says that if one breaks the law then he ought to be
punished. These legal ought norms differs from morality norms, because legal norms are
backed by physical force or compulsion, but Kelsen does not admit Austins command
theory of law because Austin has introduced a psychological element into the definition
of law which Kelsen avoids. For Kelsen, law is knowledge of hierarchy of normative
relations. He does not want to include in his theory what law ought to be, but for him law
is a theory of analysis, an analysis that is free from ethical and political judgement of
value. He attempts to establish universal principles in his legal theory. Every legal act
relates to norm, which gives legal validity to it. The norm derives its validity from an
external source, i.e., from a particular ought norm or sanction. But Kelsens concept of
sanction differs from Austins concept of Sanction. For Kelsen, Sanction itself is another
norm that is not different in nature from the norm to which it supports. While Austins
concept of Sanction implies as if it is standing outside the rule of norms. In this way
every legal norm gains its force from more general norm, which backs it. Ultimately that
hierarchy relates back to an initial norm or initial hypothesis called, Grund Norm. It is
from these Grund norms, that all inferior norms derive their force. This Grund norm is
hypothesis, and it is accepted that it is valid; its validity cannot be challenged. Thus
Grund norm is the basis of starting point in the legal system. From this base legal system
boarders down in gradation. The Grund norm is also known as Apex Norm which may
be static, i.e., law of nature and dynamic norm. The gradation process of legal system
from Grund norm becomes more and more detailed and specific as it progresses. To this
process Kelsen calls the gradual concretization of Grund norm. Thus focusing a law to
a specific situation. This process of gradual concretization of Grund norm is a dynamic
process. In every legal system there is always a Grund norm although its forms are
different in different legal systems. In Britain the Grund norm is crowned in parliament.
In USA and India it is the constitution. The Grund norm can be recognized by minimum
effectiveness, which it possesses. What is the nature and origin of Grund norm is not
within the province of the pure theory of law. These are the pre-legal questions in which
jurist are not concerned. The task of legal theory is only to clarify the relation between
the Grund norm and other inferior norms and not to enter into other question as to the
goodness and badness of Grund norm. Before applying Kelsens theory to any legal
system, one must discover Grund norm.

SALIENT FEATURES OF KELSENS PURE THEORY OF LAW

The pure theory of law as propounded by Kelsen is founded on certain basic assumptions
as follows:

1. The theory is aimed at reducing chaos and confusion created by the supporters of
natural law philosophy.
2. Pure theory of law deals with the knowledge of what law is, and it is not concerned
about what law ought to be.
3. Theory considers law as a normative science and not a natural science.
4. Kelsens pure theory of law is a theory of norms not so much concerned with the
effectiveness of legal norms.
5. It is formal theory confined to a particular system of positive law as actually in
operation.

IMPLICATION OF THE PURE THEORY

When law as well as state derives their power and validity ultimately from Grund norm
there can be no supreme or superior person as a sovereign. For Kelsen law and state both
are same. In both validity or power is derived from the same Grund norm then no
difference can be made on the ground that they protect the interest of different nature.
Private interests are protected in public interests. There is no more than one norm. All
legal personalities are artificial and derive its validity from superior norms. Personality in
norms means an entity capable of bearing rights and duties. Law treats human being also
as an entity, having rights and duties, hence no difference in law from legal person. In
case of conflict between municipal law and international law, international law shall
prevail, because in both legal systems the laws are based on two different Grund norms,
and Grund norm of international law is supreme. Pacta Sunta Survanda is the Grund
norm of international law, and sanction of international law is war and reprisal.
CRITICISM AGAINST KELSENS THEORY

1. Grund norm vague and confusing: Though Kelsen has given characteristic of Grund
norm as possessing minimum efficacy, it is very vague and confusing and difficult
to trace it out in any legal system. The discovery of Grund norm is the condition
precedent for successful application for Kelsen theory.
2. Purity of norm cannot be maintained: in tracing the Grund norm by applying the
taste of minimum effectiveness one will have to look into political and social facts.
It could cause adulteration in the pure theory, because the impurity of Grund norm
would affect legal norm also. Secondly, deriving legal norms from Grund Norm or
process of concretization evolves acts of numbers of individuals in such deduction
and application as judges, legislatures they in their turn give their individual creative
touches.
3. Natural law is ignored: Natural law plays very significant role and is incorporated in
positive law, but Kelsen considers them as extra legal norms. His theory rejects the
elements of justice. Law cannot be completely divorced from ethics and morality,
which gives it an Honorable place in the society.
4. Supremacy if International law: Kelsen finds the Grundnorm of International law in
the principle Pacta Sunta Survanda. Whether Grundnorm comes into existence
after formation of States or States derive validity and force from such Grundnorm.
To this question Kelsen has no answer.
5. No practical significance: Sociological jurists criticized it on the ground that it lacks
practical significance. Prof. Laski said that pure theory of law is more logical than
practical in reality of life.

The theory of Kelsen is found to be based on hypothetical consideration without any

practicability. It is not possible to divest law from the influence of political ideology and
social needs.

MERITS OF THE THEORY

1. It makes the most refined development of analytical positivism.

2. The pure theory of law is considered to be the most outstanding theory of law.
3. Kelsen has uplifted the status of law by treating law as a separate body of
knowledge.
4. Kelsens concept of legal system is clear, original and striking.
5. Kelsen has explained that no law can prevail contrary to Grundnorm or Constitution.
6. Pure theory of law is good for peaceful change.
7. Kelsen recognized international law as a law.
Prof. Kelsen made original valuable contribution to the Jurisprudence. He has no doubt
influence modern thoughts. His analysis of legal concepts such as right, personality,
states and public and private law have received great support. He is positivist. His logical
and scientific approach of legal order is very convincing. Practical value to the lawyers.
At least it clears mind and after that he is free to make choice of ideology. Kelsens
theory of law can be explained in Indian context. Constitution of India is a Grundnorm,
which is pure. As Grundnorm is pure then inferior legal norms are also pure.

COMPERATIVE STUDY OF HARTS AND KELSENS THEORY:

From all the above discussion and research, both Harts and Kelsens theories are clear.
They both put their thoughts on Jurisprudence and its practical implication on law.
According to both, the basic norm, Grundnorm is the superior norm in the study of the
Jurisprudence. It is clear that they both are agreed on the Normativity of law and laws are
based on the basic norms. According to both of them, the norms plays an important role
in the study of Jurisprudence. Their both concepts are comparative in nature on the basis
of Normativity of law. In order to do the comparative study of the Hart and Kelsens
concepts we need to share some points which are agreed by both the jurists. In interest of
comparative study we need to throw some light on the same thoughts of the Hart and
Kelsen regarding evaluation of Jurisprudence and law.
As per the Kelsens point of view, the Pure Theory conceives of law as a system of
norms, such norms function as schemes of interpretation in light of which we can view
human behavior and other natural events. The structure of such a system is described by
Kelsen as a structure of norms on different levels where norms on a higher level authorize
the creation of norms on a lower level. On Kelsens analysis, a norm is the meaning of an
act of which directed at the behavior of another. Legal norms differ, from the orders
issued by the Mafia boss in that they also express an objective ought, that the act in
question ought to be performed not only from the viewpoint of the person positing the
norm, but also from the viewpoint of the person whose behavior the norm regulates, and
from the viewpoint of a neutral third party.
As per the H.L.A. Harts point of view, like Kelsen, Hart conceives of law as a system of
norms, the foundation of which is a single, fundamental norm. And just as Kelsens
account of laws Normativity rests ultimately on a fundamental, presupposed norm (the
basic norm), Harts account of laws Normativity rests ultimately on a fundamental,
accepted norm, which he calls the rule of recognition. The problem Hart faces is therefore
the same problem as Kelsen faced, i.e. to explain how this fundamental norm can ground
the Normativity of law. To say that a legal norm is valid, Kelsen and Hart explains, is to
say that it exists, and to say that it exists is to say that it ought to be obeyed or applied,
that it has binding force. To say that a valid legal norm expresses an objective ought is
just another way of expressing the same idea. Kelsen maintains, in keeping with the
separation thesis, that legal validity is conceptually independent of morality.
We should note here that Kelsen accepts as fundamental and self-evidently correct the
distinction between what is and what ought to be, between the world of is and the world
of ought, as he used to say in his earlier writings. He conceives of is and ought as two
fundamental and distinct categories or modes of thought, and he takes the meaning of
ought to be intuitively clear, expressing the specific sense in which human behavior is
determined by a norm. Ought, he says, is a simple notion, and it can therefore not be
defined Law, then, is a normative phenomenon, and as such it must be carefully
distinguished from factual phenomena, but also from other normative phenomena. Since
this is so, legal scholars can invoke neither (i) empirical considerations from psychology,
sociology, economics, political science, etc., (ii) normative considerations from ethics,
theology, etc. in their analyses of the law. As Kelsen says, the basic methodological aim
of the Pure Theory is to free the study of law from all foreign elements, to avoid
methodological syncretism. This is what the purity of the Pure Theory amounts to. As one
might expect, Kelsen rejects John Austins command theory of law. He maintains instead
that a command can be binding only if the commander has the legal power to issue that
command, and that the commanders legal power depends on the existence of a legal
system that confers on him the requisite legal power. Hence a gangsters command that
you hand over your money to him cannot be binding, as there is no valid legal norm
conferring legal power on the gangster to issue such commands. When tracing the
validity of a given legal norm through the chain of validity, one finally arrives at the
historically first constitution. Since that constitution cannot have been created in
accordance with another and higher valid norm, Kelsen and Hart terminates the chain of
validity by simply presupposing that we ought to behave in accordance with the
historically first constitution. He calls this presupposition the basic norm (Grundnorm),
and explains that it is the final postulate, upon which the validity of all the norms of our
legal system depends. So the basic norm is the tool we use to distinguish between law
and coercion, between being obligated and being obliged, which means that it grounds
the Normativity of law.

CONCLUSION AND SUGGESTION:

According to all the above discussion and research we have come to the conclusion that,
Jurisprudence means knowledge of law or science of law. It signifies knowledge or
science of law and its application. It covers the whole body of legal principle. The
concept of law has assumed different meanings at different times. There cannot be a
commonly agreed definition of the law. In Jurisprudence we mainly study the nature of
law which includes its classification, its nature, purpose and other points related to it.
Jurisprudence includes all concepts of human order and human conduct in State and
society. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning
of laws passed by legislature by providing the rules of interpretation. The defect in the
law can be cured through their judicial interpretation. Jurisprudence is closely inter-
related with other social sciences since all of them are concerned with human behavior in
society. Prof. H.L.A. Hart is a supporter of analytical positivism but his concept of rule of
law is different from the other jurists. The contribution of Hart to the study of the
Jurisprudence is undoubted of immense value. Prof. Kelsen made valuable contribution
to Jurisprudence. His analysis of legal concepts such as right, personality, public and
private law have received great support. His logical and scientific approach of legal order
is very convincing. Kelsens theory of law can be explained in Indian context.
Constitution of India is a Grundnorm, which is pure and supreme. As the Grundnorm is
pure then inferior legal norms are also pure. The cooperative study of both of the Jurists,
Hart and Kelsen gives the new view and turn to the study of the Jurisprudence. They both
are the Positivists. They both, no doubt have influenced modern thought.
 BIBLIOGRAPHY

NOTES ON JURISPRUDENCE- PUNE UNIVERSITY

WEB-scholership.law.edu
WEB www.lawyersclubindia.com
WEB www.indiankanoon.org