TOPIC - PURE THEORY OF LAW

SUBMITTED BY
ANMOL ROHILLA(500070266)
SHREYASI DUTTA(500070193)
Introduction:-

Generally, there is a system of laws, rules, and regulations which are implemented through social institutions
to operate human behaviour.  Although, the word "law" has no universally accepted definition. Laws can be
made by law legislation through legislation resulting in statutes, the executive through decrees and
regulations, or judges through binding precedents.

The idea of a Pure Theory of law was propounded by the formidable Austrian jurist and philosopher Hans
Kelsen (1881-1973). Kelsen began his long career as a legal theorist at the beginning of the 20th century.

         Kelsen theory stands at the same level and has a similar importance to Austin theory. Kelsen
developed his theory on law and made a great contribution to jurisprudence. Positivism was redefined and
redefined by Kelsen's pure principle and is part of analytic positivism and parcel. Kelsen developed his
theory on a theoretical and philosophical basis.
           According to Kelsen, the weather of positivism was sown by natural lawyers like Stambler, not
positivist. Stambler invents the concept of purity. The concept that the law would be pure from any other
investigation such as sociological, political, historical, logical, etc. reflects the purity of the law. The law
will not be based on all those components, deprived, connected or mixed. Thus, according to Kelsen, "the
law will stand on its own."

Why the principle was proposed:-

                                      According to Kelsen, laws are scattered in the society which creates ambiguity in

the source of the law. There is a whole variety of laws and regulations. The laws have scattered which have
created the inequality of the class. There is a kind of chaos in the legal system. Therefore, Kelsen went to
develop his pure principle of law to achieve uniformity.

Object:-
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                               The objective of this story is to become the homogeneity of laws and the legal system of
laws is scattered and it is difficult to find the actual source of the law. Kelsey rejected Austin's proposal to
set up a superior authority (sovereign) as a source and he interpreted the pure principle which is necessary to
achieve the order of symmetry in the legal system. So the source of the law can be traced. The validity of the
law can be fixed on the basis of pure principle.

Hans Kelsen:-

              Hans Kelsen (d. 1973) was an Austrian jurist, legal philosopher and political Philosopher belonging
to a legal positivism school of thought. Roscoe Pound appreciated as Kelsen's "undoubtedly the leading
jurist of time." Kelsen is considered to be one of the pre-eminent jurists of the 20th century. Kelsen became
famous due to his pure theory of law and the doctrine of pure law.
His book, entitled "The Pure Theory of Law", was published in two editions, one in Europe in 1934, and a
second extended edition after he had joined the faculty at the University of California at Berkeley in 1960.

Key Features of Kelsen's Pure Theory 

1. Law as Science: Kelsen tried to present a theory that could be attempted to change Law in science, a
theory that could be understood through logic.

2. As a positive law: In the first paragraph of the pure theory of law, Kelsen introduces his theory as a theory
of positive theory. This principle of positive law is then presented by Kelsen as a hierarchy of laws that
begins with one basic norm, i.e. Grundnorm ', where all other norms are related to each other either being
inferior norms.

3. Law "As it is": Kelsen emphasized that analysis should focus on the law as ‘it is’ in fact laid down, not as
‘it ought to be’.

4. Law and morality:  Kelsen’s strict separation of law and morality is an integral part of his pure theory of
law.

5. The theory of law should be uniform:  According to Kelsen, the theory of law should be applied at all
times and in all places.

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6. Static Aspect of Law:  Kelsen distinguished the static theory of law as the dynamic theory of law. The
static theory of law represented the law as a hierarchy of laws where individual laws were related to each
other either being inferior, the one to other, or superior with respect to each other.

THE CONCEPT OF THE NORM

Since the pure theory of law limits itself to cognition of positive law, and excludes from this cognition the
philosophy of justice as well as the sociology of law, its orientation is much the same as that of so-called
analytical jurisprudence, which found its classical Anglo-American presentation in the work of John Austin 1.
Each seeks to attain its results exclusively by analysis of positive law. While the pure theory of law arose
independently of Austin's famous Lectures on General Jurisprudence, it corresponds in important points
with Austin's doctrine. It is submitted that where they differ the pure theory of law has carried out the
method of analytical jurisprudence more consistently than Austin and his followers have succeeded in doing.
This is true especially as to the central concept of jurisprudence, the norm. The first edition was published in
I832, under the name of The Province of Jurisprudence Determined; a considerable amount of new material
was added in subsequent editions. All references in this article are to the fifth edition, published in I885. It
will be hereinafter cited as AUSTIN. Or, rather, laws or rules, properly so called, are a species of
commands." A command is the expression of the will of an individual directed to the conduct of another
individual. If it is my will that someone behave in a certain manner, and if I express my will as regards this
other individual in a certain way, my expression is a command. Thus a command consists of two elements: a
wish directed toward someone else's behaviour, and its expression in one way or another. There is a
command only so long as both the will and its expression are present. If someone issues a command to me,
and before its execution I have adequate reason to assume that it is no longer his will, then neither is it any
longer a command, even though the expression of his will should remain. But a so-called "binding"
command is said to persist even if the will, the psychic phenomenon, has lapsed. More accurately, however,
that which persists is not really the command, but rather my obligation. A command, on the other hand, is
essentially a willing and its expression. Hence legal rules, which according to Austin constitute the law, are
not actually commands. They exist, that is to say, they are valid and obligate individuals, even if the will by
which they were created has long ceased to be. It may even be said to be doubtful whether some instances in
which legal obligations exist as to certain behaviour ever represented the real will of anyone. An example
will illustrate this. If one calls a statute constitutionally enacted by a legislature a command, or, what
amounts to the same thing, the “will" of the legislators, this expression has almost nothing to do with the
true concept of "command" The statute is valid, that is, binding, even after all the members of the legislature
that enacted it have died; and then, therefore, the content of the statute is no longer the "will" of anyone, at
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https://www.google.com/search?rlz=1C1CHBF_enIN810IN810&sxsrf=ALeKk00V1n5F3kBKd_-
8tfFOshqnbzv35A:1587893369611&q=pure+theory+of+law+jurisprudence+pdf&sa=X&ved=2ahUKEwiYhPLh44XpAhXDT30KHYzt
B5gQ1QIoAXoECB4QAg&biw=1209&bih=560&dpr=1.13
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least not of anyone competent to will it. Thus binding law cannot be the psychological will of the law-
makers even though a real act of will is necessary to make the law. And an analysis of the constitutional
process by which a statute comes into being shows that even the act creating a binding law need by no
means represent any will to the behaviour required by the statute. The content of the statute is not the "will"
of the legislators who vote against the bill; their will is expressly contrary. Yet their expressions of will are
just as essential to the existence of the statute as are the expressions of will of the members who voted for it.
The statute is an enactment of the whole legislature, including the minority, but this obviously does not
mean that its content is the will - in the psychological sense - of all the members of the legislature. Even if
one takes into consideration only the majority that voted for the bill, the assertion 2 that the statute was the
will of the majority is patent fiction. Voting for a bill by no means implies actually "willing" the content of
the statute. Psychologically one can "will" only something of which one has an idea; one can- not "will"
something of which one knows nothing. And it is in- dubitable that in very many if not all cases, a large
proportion of the members of a legislature who vote for a bill either do not know its content or know it very
superficially.

THE ELEMENT OF COERCION

In accordance with the assertions of analytical jurisprudence, the pure theory of law regards the element of
coercion as an essential characteristic of the law. Austin 5 and his followers characterize law as
"enforceable" or as a rule "enforced" by a given authority. By this they mean that the legal order
"commands" the individual to act in a certain fashion, and "forces" men in a specific way to obey the
commands of the legal order. The specific means by which the law "enforces" the obedience of individuals
consists in inflicting an evil called a sanction in case of disobedience. The "coercion" which according to
this view is characteristic of the law is a psychic one; obedience to the commands of the law is achieved
through fear of the sanction. From the standpoint of a strictly analytical method, this formulation is not
correct. It has reference to the behaviour of the citizen and the organs applying the law, but it may well be
doubted whether the lawful behaviour of individuals is brought about by fear of the threatened sanction. So
far as we know anything about the motives for the behaviour of individuals, we may surmise that moral or
religious motives, for instance, are important, and even perhaps more effective than fear of the sanction of
the law. And psychic coercion is not a specific element of the law. Moral and religious norms as well are
coercive in this psychological sense. For the rest, this question as to the motives for lawful behaviour is
beside the purpose of cognition directed only to the content of the legal order. We are here in the presence of
a problem of sociological, not analytical or normative jurisprudence.

THE LEGAL DUTY

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https://www.pravo.unizg.hr/_download/repository/Pure_Theory_of_Law_-_Legal_Validity.pdf
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The pure theory of law stresses the primary character of the concept of duty in relation to that of right, just
as Austin does. "Duty is the basis of Right." To say that an individual is legally obligated to observe certain
conduct means that a legal norm provides a sanction for contrary behaviour, a delict. Normally the sanction
is directed against the individual who has committed the delict. It can happen, however, - and in primitive
legal orders this is the rule - that the sanction is directed not alone against the delinquent but against other
individuals as well, against those who stand in a specific relation to the delinquent. They are individuals who
belong to the same legal group as the delinquent - to the same family, tribe, or state. If the sanction is
directed only against the delinquent himself, then it is a case of individual responsibility 3. If the sanction is
directed against the co-members of the group, it is a case of collective responsibility. Such is the blood
revenge or vendetta of the primitive law. Such is the operation even today of international law, the sanctions
of which (reprisal and war) are directed against the state as an entity - in effect, therefore, against the
citizens of the state whose organ has violated the law. The fact that the sanction can be directed against
individuals other than the delinquent makes it necessary to distinguish between the idea of duty and that of
liability or responsibility. The liability rests upon the individual against whom the sanction is directed. The
duty rests upon the potential delinquent who may by his behaviour commit the delict. Normally, in modern
law the subjects of the duty and of the liability are one and the same. But as an exception collective
responsibility is still possible - is, indeed, the rule of international law.

THE LEGAL RIGHT

The word "right" has many meanings. It is used both in the sense of a right to conduct oneself in a certain
way, and in the sense of a right that someone else should conduct himself in a certain way. To say that
someone has a right to behave so, may only mean that he has no duty to behave otherwise; he is free. For in-
stance, I have a right to breathe, think, walk in the park. This freedom is only the negation of a duty. But the
phrase may also have the positive meaning that someone else is obliged to behave correspondingly. For
example, that I have a right to use an object in my possession implies a duty on every other person not to
disturb me in its use; or that I have the right to express my opinion means that it is the duty of the state -
more correctly, of the organs representing the state - not to hinder my expression. That the right of one
presupposes the duty of another is especially clear when the right is to certain conduct by someone else.
That I have a right to have a certain man pay me a sum of money necessarily implies that it is his duty to
pay. Every true right that is not mere negative freedom from a duty consists of a duty of another, or many
others. "Right" in this sense is a “relative" duty. Austin's statement is apposite: " the term' right' and the term
'relative duty' signify the same notion considered from different aspects." But Austin's theory contains no
concept of right different from that of duty. Such a right exists when an individual is accorded by the legal
order the opportunity to make the duty of another effective by bringing a suit and thus setting in motion the
sanction provided for violation. Only in this case does the right of A to conduct on the part of B fail to
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https://www.academia.edu/10026094/Kelsens_Pure_Theory_of_Law
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coincide with the duty of B toward A. Only in this case is the legal situation incompletely described by
stating that B is under an obligation to A to act in a certain way. Hence the pure theory of law restricts the
concept of a right to this situation. Only here is there a separately existing right in the narrow sense of the
word.

Critical Analysis:-

1. The theory of Kelsen suggests that Grundnorm is the concept of the Constitution that ought to be
followed. Constitution of a country is a sociological, political document and therefore Grundnorm is not
pure.
2. Kelsen also said that the law should be kept free from ethics/morality. A general question should be raised
here, whether it is possible to keep the law free of ethics/morality? Kelsen insisted on the law to be effective
and thus he accepted indirectly ethics as a part of effectiveness.
3. Kelsey attempted to change the law into a science, a theory that could be understood through logic, but on
the other hand, he emphasized the validity of the Grundnorm to “assumed”, rather than based on some
"logic".
4. Kelsen tried to find the law and legal norms in a middle realm between absolute ethical values and social
facts. Therefore, rejection of the relevance of ethics the idea makes the legal science sterile and useless and
rejects factual the nature of law separates it from reality.

Conclusion:-

        Hans Kelsen is one of the most influential legal philosophers of the last century have contributed to
answering some basic questions about the law. The first of these is related to the theories of law, which
should be on the law, on one hand, and to the other hand, for the institutions, practices, and works of our
society. The second aspect of Kelsen's theory is that the whole system is interconnected to each other as a
hierarchy of norms with each other and a basic norm stands on top of this hierarchy, which is called
Grundnorm, which is the highest order, and the validity of this Grundnorm is to be supposed. All other
norms are their derivatives the legitimacy of this Grundnorm, and no one can question the validity of this
Grundnorm. Another aspect of Kelsen's theory is that it presents us with a dynamic legal order instead of
just a static. Law is organized through the maintenance of the system stability through the broadness and
simplification of its various parts principles and ideological compartments and, in a nutshell, though tending
to become a logical system, a perfect and complete logical system.

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