I.

INTRODUCTION

The Pure Theory of Law is a general theory of law that conforms to the requirements of
Positive School of law or legal positivism.1 As such, it aims to understand the law as it is, not
as it ought to be, and its method is structural analysis. 2 More specifically, it provides us with
a set of fundamental legal concepts – such as ‘legal system,’ ‘norm,’ ‘right,’ ‘duty,’
‘sanction,’ and ‘imputation’ – that we can make use of when trying to understand and
describe the law in a scientific manner. 3 We might say that the Pure Theory aims to lay down
the theoretical basis for other legal disciplines, such as contract law, constitutional law, legal
history, comparative law, etc.4

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. The traditional legal philosophies at the time, were, Kelsen
claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or
with attempts to reduce the law to natural or social sciences, on the other hand. He found both
of these reductionist endeavours seriously flawed. Instead, Kelsen suggested a ‘pure’ theory
of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded
“characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law
alone” and this purity serves as its “basic methodological principle”5

In the words of Prof. Dias, the pure theory of law of Hans Kelsen represents a development in
two different directions. It marks the most refined development to date of analytical
positivism. It also marks a reaction against the welter of different approaches that
characterised the opening of the 20th century. This does not mean that Kelsen reverted to
ideology. As a matter of fact, he sought to expel ideologies of every description and present a
picture of law, austere in its abstraction and severe in logic.6

1
Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, p. xiii; Kelsen, Hans, On
the Pure Theory of Law, Israel Law Review Vol. 1 1966, p. 5.
2
Kelsen, Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960], p. 112.
3
Kelsen, Hans, The Function of the Pure Theory of Law, Law: A Century of Progress 1835 to
1935. Vol. 2 1937, p. 231.
4
Ibid.
5
Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition),
Edward N. Zalta (ed.), Available at: <http://plato.stanford.edu/archives/fall2010/entries/lawphil-theory/>.
6
R. W. M. Dias, Jurisprudence, 1976, London.
Kelsen’s analysis of the formal structure of law as a hierarchical system of norms, and his
emphasis on the dynamic character of this process, are certainly illuminating and avoid some,
at any rate, of the perplexities of the Austinian system. 7 Still, this theory of Kelsen is
criticised on many grounds. These criticisms are further dealt in this project work. Kelsen
was criticised by many Jurists like Julius Stone, Freeman etc., but still the Pure theory of Law
hold stand in the modern world democracies governed by their respective constitutions.

Biological Sketch Of Hans Kelsen

The Austrian jurist was born at Prague in 1881 and was Professor of Law at the Vienna
University. He was the judge of the Supreme Constitutional Court of Austria 1920-30.
Subsequently, he came to England and in 1940 he moved to United States and became
Professor of Law in several American Universities. Of late he was emeritus Professor of
Political Science of the University of California where he expounded his Pure Theory of Law
in the twentieth century which has evoked worldwide interest. Kelsen has been the author of
several works – of Austrian Constitution (1920), General Theory of Law and State (1945),
The Pure Theory Law (1934) revised (1960), Principle of International Law (1952), What is
Justice (1957), and many other works. Kelsen has opposed with determination the tendency
on the part of jurists to broaden the scope of jurisprudence to embrace all social sciences and
has rigidly advocated the separation of law from metaphysics, politics and sociology. He is
disgusted at ‘politics in masquerading as jurisprudence’. Like John Austin in the nineteenth
century Kelsen challenges both the philosophical and natural law theories of law. He owed
his fame chiefly due to the Pure Theory of Law or the Doctrine of Pure Law divested of all
extra-legal and non-legal elements.8

7
M. D. A. Freeman, LLOYD’S Introduction to Jurisprudence, Sweet 7 Maxwell, London, 7th ed., 2001, p. 282.
8
.S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach (Allahabad : Central
LawAgency,2004) at 24.
 II. HISTORICAL DEVELOPMENT OF PURE THEORY OF LAW

As the natural law theory lost some of its credibility owing to its fantastic but unverifiable
claims of universal reason at the end of the 18th century a reaction in the form of legal
positivism, the theory that the true knowledge of law can only be accomplished by observing
law as it is, not as it ought to be, took hold. For a long while, the Imperative Theory of Law
propounded by John Austin held sway but by mid-20th century the principle of the command
of the sovereign backed by force, which had assumed an elevated position in the realm of
legal positivism, was in remission. Its unrepentant insistence on the indispensable place of
coercive force melted before the more dynamic theories preaching the systematic quality and
normative nature of law. Pure theory of norms was one such theory attempting to erode these
errors.

Nineteenth century German legal thought had created a “general” theory of law as a field of
study separate from the “philosophy of law or moral considerations of law”. 9 Kelsen saw
himself as continuing the project of a general theory of law, but in a way which would
remove some of the errors that still affected this discipline. Thus, he asserted for the need of a
purified theory of law “Pure theory of law”.10

Kelsen began his long career as a legal theorist at the beginning of the 20th century. The
traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with
political ideology and moralizing on the one hand, or with attempts to reduce the law to
natural or social sciences, on the other hand. He found both of these reductionist endeavours
seriously flawed.

Thus, Kelsen proposed the analysis of a legal system simply as a structure of norms, in other
words of “ought”- propositions, which could be, within its own terms, valid and illuminating,
regardless of the moral quality of those norms and indeed independent of all extraneous
ethical social, economic or political values. Kelsen’s scheme had the result of effacing the
distinction between public and private law and between law itself and the state. Each one of
the norms that collectively amount to everything we need by the state, is no more and no less
of an “ought”-proposition than any rule located in any other legal system stripped down to
this minimum quality, all are of the same character.11

9
C.B. Gray, The Philosophy of law: An Encyclopaedia,1st ed. (New York, 1999) at 478.
10
Ibid., at 478
11
J.M. Kelly, A Short History of Western Legal Theory, 7th ed. (Oxford, 2001) at 356.
III. PURE THEORY OF LAW

A theory of law must be distinguished from law itself. There is no logic in natural
phenomena. A theory of nature which purports to take out all of them, must be logically self-
consistent. Law is composed of heterogeneous rules, and the function of any theory of law is
to organise it into a clear single ordered pattern. Kelsen was able to achieve this through his
hierarchy of norms “Stufenbau” and distinction between “is and ought”.

A theory of law should be “pure” (purity) or independent of the influences of extra-legal

values of any kind. Thus Hans Kelsen (1881 - 1973) believed and propagated a theory that in
its purity was divorced from all extra-legal elements such as sociology, philosophy, ideology,
psychology, politics, ethics, etc., which elements were to be left to the “ists” in the
metaphysical and ethical world – the sociologists, the psychologists, the ethicists and the
moralists. By so doing he intended to lay the field bare for psychologists, sociologists,
psychiatrists and other non-law exponents to conduct a more illuminating inquiry into these
non-law elements. To his credit, as others who reacted against the doctrines of natural law
sought for an empirical colander through which they could sift law in the misguided belief
that law was not unlike the natural sciences, Kelsen was quick to decipher that law belonged,
not to the natural sciences, but rather to the human sciences. He shied away from the content
of the law and built his theory on the form.

Kelsen’s goal is a pure science of law: it is not a theory of pure law. He envisages no such
chimera as a ‘pure norm’.12 Kelsen is not disinterested in Justice or sociology or psychology.
The pure theory provides the basic forms under which meanings can be known scientifically
as legal norms – which will have a content, although the particular content is empirically
contingent, and which, once determined as having a particular content, can be morally
evaluated.13 Thus, “far from being an attempt to exclude consideration of experience, content
and justice, the pure theory is intended to make attention to them more rigorously possible.” 14
Therefore the theory’s object of cognition—the norm—is seen without reference to its
content or to such questions as why it is (or is not) obeyed. But Kelsen intends thereby to
clarify the field for those who are primarily interested in these questions. That the study of
law has been ‘adulterated’ by other disciplines is, according to Kelsen, perfectly
understandable. These disciplines deal with subject matters ‘closely connected’ with law. But

12
Cf. J. Harris, Law and Legal Science (1979), pp. 34-35.
13
Per Stewart, op.cit., I. Stewart (1990) 17 J.L.S. at p. 128.
14
Ibid.
the pure theory of law, Kelsen insists, “undertakes to delimit the cognition of law against
these disciplines.... because it wishes to avoid the uncritical mixture of methodologically
different disciplines.... which obscures the essence of the science of law”?15

JUSTIFICATION FOR NAME OF THEORY AS PURE THEORY OF LAW:

It was the objective of Hans Kelsen to purify the science of law from all evaluative criteria
and ideological elements. Justice, for example, was viewed by Kelsen as an ideological
concept. Justice, to him, was an ‘irrational ideal’ representing the subjective predilections and
value preferences of an individual or group.16 “the usual assertion,” he wrote, “that there is
indeed such a thing as justice, but that it cannot clearly be defined, is in itself a contradiction.
However indispensable it may be for volition and action of men; it is not subject to cognition.
Regarded from the point of view of rational cognition, there are only interests, and hence
conflicts of interests.”17 The Theory of Law, Kelsen maintained, cannot answer the question
of what constitutes justice because this question cannot be answered scientifically at all. If
justice is to be given any scientifically meaningful denotation, it must be identified with
legality. According to Kelsen, it is ‘just’ for a general rule to be actually applied in all cases
where, according to its content, this rule should be applied. “Justice means the maintenance
of a positive order by conscientious application of it.”18

Kelsen’s methodological objectives did not stop with the elimination of political and
ideological value judgments from the science of law. He wished to go a step further by
keeping legal theory free from all extraneous, nonlegal factors. ‘Uncritically’, he said, “the
science of law has been mixed with elements of psychology, sociology, ethics and political
theory”.19 He sought to restore the purity of the law by isolating these components of the
work of a lawyer or judge which may be identified as strictly ‘legal’.20

NORMS AND THE BASIC NORM

The purpose of the Pure theory, Kelsen says, “is to know and to describe its object”. 21 Kelsen
approached law as the “object” of his theory-with the aim of identifying the necessary
conditions for its cognition. He claimed that his theory explains how legal phenomena must

15
The Pure Theory of Law, p.1.
16
Hans Kelsen, ‘General Theory of Law and State’, transl. A. Wedberg (Cambridge, Mass., 1949), p. 13.
17
Kelsen, ‘The Pure Theory of Law and Analytical Jurisprudence’, Harward Law Review, p. 44, at 48-49
(1941).
18
Ibid.
19
Kelsen, ‘The Pure Theory of Law, transl. M. Knight (Berkeley, 1967), p. 1.
20
Edgar Bodenheimer,
21
H.Kelsen,  Pure Theory of  Law, 2nd ed. (Berkeley, 1967) at 1.
be interpreted and organized within a jurist’s mind, in order for the jurist to perform the task
of recognizing certain norms as binding laws.

Kelsen proposed every legal system as a hierarchical structure, an interwoven unit of norms
in which every norm is dependent for its validity upon a superior norm. Thus, to merit the
appellation law there must be some other norm in the form of a backbone conferring validity
on it and this connection is traced all the way back to an ultimate norm, the basic norm or
Grundnorm in which resides the validity of all other norms. The Pure Theory conceives of
law as a system of norms,22 where norms function as schemes of interpretation in light of
which we can view human behaviour and other natural events. 23 Kelsen defined Norm as
meaning of an ‘act of will’ by which Human behaviour is ‘commanded’, ‘authorized’ and
‘permitted’.24

Norms are regulating setting forth how persons are to behave and positive law is thus a
normative order regulating human conduct in a specific way. A norm is an ‘ought’
proposition; it expresses not what is, or must be, but what ought to be, given certain
conditions; its existence can only mean its validity, and this refers to its connection with a
system of norms of which it forms a part. It cannot be proved to exist factually, but simply to
be derivable from other norms, and is, therefore, valid in that sense.

But if a norm can only be derived from other norm, theoretically, this means that one can
continue this derivation ad infinitum, but in practice, since norms are concerned with human
conduct, there must be some ultimate norm postulated on which all the others rest. This is the
Grundnorm (the basic norm). So far as the legal system is concerned this basic norm must be
extra-legal, since ex hypothesi it does not rest upon another legal norm. But Kelsen is at pains
to point out that the choice of basic norm is not arbitrary. On the contrary it must be selected
by the legal scientist on the principle of efficacy, that is to say that the legal order as a whole
must rest on an assumption that is by and large efficacious, in the sense that in the main
people do conduct themselves in conformity with it.25

According to Kelsen, the basic norm cannot, unlike the other norms, be justified by reference
to other or more validating law. Thus, it may instead derive its validity from the fact of
recognition, acknowledgment and acceptance conferred on it by a sufficient minimum

22
Kelsen,Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960].p. 215-21.
23
Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, at p. 41.
24
Ibid.
25
What is Justice, p. 268.
number of persons in the political entity. Law therefore is not to be isolated from the
organised structure and power of the state. This structure is normative and thus the concept of
sanctions which plays a rather exclusive role in the Austinian doctrine as the element which
makes law functional, relies on other forces such as prosecutors, officials and judges to
perform their aspects of the normative structure before sanctions are activated and inflicted.26

The basic norm is non positive and so is not the concern of legal science. The choice of the
basic norm may also have important implications in determining the relation of national state
law to international law. For if the basic norm is in conformity to the constitution of each
state, there will be a pluralistic congeries of independent legal systems, while if that norm is
taken in relation to international law, there will be a monistic world order, from which each
national law will derive.

HIERARCHY OF NORMS AND LAW-MAKING PROCESS

Kelsen’s description of the legal process as the hierarchy of norms, the validity of each norm
(apart from the basic norm) resting upon the higher norm and each level in the hierarchy
representing a movement from complete generality to increasing individualism, has
sometimes been misunderstood as suggesting that the interpretation and application of
general rules are of purely mechanical character. This is far from being Kelsen’s view. On the
contrary, he points out that though law has peculiarity of regulating its own creation, a higher
norm can determine the creation and content of another norm only to a certain extent. In so
far as there is discretion or a choice as to the applicable rule, the norm creating function takes
on a political character. This is obvious in the case of the American Supreme Court
interpreting the Constitution, but it is the same with the application of law by any legal
authority. And the function does not cease to be legal on this account, for it still takes place
within the framework of norms.27

Kelsen does not negate the value of the sociology of law. This stands side by side with
normative jurisprudence and neither can replace the other. The latter deals with validity and
the former with efficacy, but the two are inter-connected, since the sociology of law
presupposes the normative concept of law. But Kelsen makes a curious distinction between
the role of the legal scientist and of a law-making authority, such as a judge. The former can
only describe and not prescribe, and therefore, he cannot exercise any choice open to the
latter. The legal scientist, must therefore, accept any decision as valid, since it is outside his
26
Curzon, L.B, Jurisprudence, 2nd ed., 1995, London: Cavendish Publishing Ltd., at p. 57.
27
Ibid.
competence to say whether it is within the framework of the general norm in question. And
though, he can point out possible interpretations, he must leave the law-making authority to
make the choice, for to try to influence this authority is to exercise a political and not a legal
function. This seems to involve an act of renunciation on the part of legal science in which it
is hardly likely to acquiesce, and apparently treats the advocate arguing a case as a politician
rather than a lawyer.28

VALIDITY AND EFFECTIVENESS OF NORMS

To say that a legal norm is valid, Kelsen 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.29 To say that a
valid legal norm expresses an objective ought to be just another way of expressing the same
idea. Kelsen maintains, in keeping with the separation thesis, that legal validity is
conceptually independent of morality: “[t]here is no kind of human behaviour that, because of
its nature, could not be made into a legal duty corresponding to a legal right.” 30 He also
maintains, in keeping with the is/ought distinction, that the validity of a given legal norm can
only be explained by reference to the validity of another and higher legal norm. Thus, a norm,
n1, is legally valid if, and only if, it was created in accordance with another and higher legally
valid norm, n2, which in turn is legally valid if, and only if, it was created in accordance with
another and higher legally valid norm, n3, etc.31

According to the Pure theory statements about the validity of legal norms presuppose
effectiveness in two ways, a legal norm loses its validity if it has been ineffective for a long
time, if it is a part of a system of norms which is, by and large effective. As for determining
the validity of any particular norm, the citizen must think that it exists or that there is a power
behind it that obligates those whose behaviour it is meant to order4. That a norm is effective
then, while a condition of validity, is however not the basis of its validity5. In that way the
validity of each norm may be weighed in the scale of the basic norm. Thus, sanctions are
what ought to apply after hurdling certain conditions. The law takes the form of a conditional
order directing officials, not the citizen, on what to do given certain conditions7. In Kelsen’s
enlightened view, the fact that A has committed murder is not of necessity visited by the
sanction of death. Rather, depending on certain conditions imposed by law, A ought to be

28
M. D. A. Freeman, Lloyd’s Introduction to Jurisprudence, 8th Edition, 2008, Sweet & Maxwell publication, at
p. 310.
29
Supra note 22.
30
Supra note 23.
31
Supra note 22; supra note 23.
visited by the sanction of death. The allowance is for the performance of these officials and
judges of the functions that this normative structure has imposed.

SANCTION
For Kelsen, every system of norms rests on some type of sanction, though this may be of an
undifferentiated kind, such as disapproval by a group. The essence of law is an organisation
of force, and law thus rests on a coercive order designed to bring about certain social conduct.
Sanctions are the key characteristic of law not because of any supposed psychological
effectiveness but because it stipulates that coercion ought to be applied by the officials where
delicts are committed. The law attaches certain conditions to the use of force, and those who
apply it act as organs of the community. Kelsen bases this view on the historical facts that
there has never been a ‘large’ community which was not based on a coercive order.

Kelsen commits himself to the view that every norm to be ‘legal’ must have a sanction,
though this may be found, as for instance in constitutional law by taking it together with other
norms with which it is interconnected.32 Kelsen treats any breach of a legal norm as a ‘delict’,
whether this would normally be described in traditional terms as falling within the criminal or
the civil law. For Kelsen, to be legally obligated to a certain behaviour means that the
contrary behaviour is a delict and as such is the condition of sanction stipulated by a legal
norm. Since Kelsen regards a sanction as an essential characteristic of law, no conduct can
amount to delict unless a sanction is provided for it. This view has been criticised, 33 with
some warrant, on the ground that though the absence of a sanction may make law ineffective,
this is not the same as its being invalid, nor does the absence of a sanction necessarily entail
invalidity. Emphasis on sanctions also underplays the significance of duties. There are many
examples of public authorities which have obligations imposed on them but where no
sanctions as such follow from default.

A further feature of Kelsen’s analysis of the sanctionist view of law is that legal norms are
stated in the form that, if the person does not comply with a certain prohibition, then the
consequence is that the courts ought to inflict a penalty, whether criminal or civil. It follows
that for Kelsen the content of legal norms is not primarily to impose duties on the subject to
conform, but rather to lay down what judges or officials are expected to do in the event of a
delict. Accordingly, for Kelsen the norm which lays down the sanction, involving a direction
to the judge, is the primary norm, though he recognised that there is a secondary norm which
32
General theory of Law and State, pp.29, 143-144.
33
By A. D. Woozley (1968) 77 Mind 461, 463-465 and Razz, The Concept of a legal system, pp. 78 et seq.
stipulates the behaviour which the legal order endeavours to bring about by announcing the
sanction. This conflicts with the orthodox view that legal duties set standards of conduct and
accordingly impose obligations on society as a whole.34

IV. IMPLICATIONS OF PURE THEORY OF LAW

Certain conclusions were drawn by Kelsen. There is no distinction between public and
private law. That is due to the fact that all law emanates from the same Grundnorm. Both
Public and Private laws are a part and parcel of a single process of concretisation. Another
conclusion is that the legal system is an ordering of human behaviour. The idea of Duty is the
essence of law. That is evident in the ‘ought’ of every norm. The idea of a right is not
essential. It is said to occur ‘if the putting into effect of the consequence of the disregard of
legal rule is made dependent upon the will of the person who has an interest in the sanction of
the law being applied’. The idea of right is merely a by-product of law. The idea of individual
rights is not the foundation of criminal law today. Formerly, the machinery of law was set in
motion by the injured person, but now the same is set in motion by the State. it is true that the
idea of right is still the basis of the law of property, but it is possible that the same may be
dispensed with in the future.

The idea of ‘personality’ is simply a step in the process of concretisation. By a person is

meant a totality of rights and duties. Kelsen rejects the distinction between natural person and
juristic persons. Natural persons are biological entities and are outside the province of legal
theory. The state is a system of human behaviour and an order of social compulsion. “Law is
also a normative ordering of human behaviour backed by force”. Thus, the state and law are
identical. It is not correct to say that law is the will of the state as both the State and Law are
identical. The State as person is simply the personification of law.

According to Kelsen, legal dualism is nothing but a reflection of and substitute for theology
with which it has substantial identity. To quote Kelsen : “when we have grasped, however,
the unity of state and law, when we have seen that the law, the positive law (not justice), is
precisely that compulsive order which is the State, we shall have acquired a realistic non-
personificative, non-anthropomorphous view, which will demonstrate clearly the
impossibility of justifying the state by the law, just as it is impossible to justify the law by the
law, unless that term be now used in its positive sense, now in the sense of right law, justice.

34
Supra note 21, at p. 311-13.
The attempt to justify law by law is vain, since every state is necessarily a legal state. Law,
says positivism, is nothing but an order of human compulsion. The State is neither more nor
less than the law, an object of the normative, juristic knowledge in its ideal aspect, that is, as
a system of ideas, the subject matter of social psychology or sociology in its material aspect,
i.e., as a motivated or motivating physical act (force).”

As the State is nothing but a legal construction, there is no demarcation between physical and
juristic persons. As law is a system of normative relations and uses personification merely as
a technical device to constitute points of unification of legal norms, the distinction between
natural and juristic persons is irrelevant. All legal personality is artificial and deduces its
validity from superior norm. According to Kelsen, the concept of person is merely a step in
the process of concretisation and nothing else.

Once the hierarchic character of law is grasped, the distinction between law-making or
legislation on one hand and execution or application of law on the other, has not the absolute
character which the traditionalists attribute to it. The majority of the legal acts are at once
legislative and judicial acts. with every such act, a norm of superior degree is put into
execution and a norm of inferior degree set up. For example, the first form of the constitution
which is a law-making act of the highest degree, is the execution of the basic norm.

THE PURE THEORY OF LAW AND STATE

In the Pure theory the distinction between “the State” and “Law” also disappears, as the state
can only be described in terms of the norms which set out its structure and mechanisms.
These norms do not differ in kind from the other norms which set out its structure and
mechanisms in the legal system. The unity of a legal system explains in presenting a
definition of law as a coercive order, that the statue is an entity that lays exclusive claim to
the legitimate use of forceful coercion. This is an idea that can be traced back to the socialist
Max Weber (1864-1920). Weber defined a state as a human community that successfully
claims the monopoly of the legitimate use of physical force within a given territory.35

Kelsen proposed the analysis of a legal system simply as a structure of norms, in other words
of “ought” propositions, which could be, within its own terms, valid and illuminating
regardless of the moral quality of those norms, and independent of all extraneous ethical
social, economic, or political values. This scheme has the result of effacing the distinction
35
Marx Weber, Politics as a Vocation, 1st ed. (Munich 1919) at 398 - said that self defence in criminal law is
generally considered to be the main exception. Reason being one did not wish to break a criminal norm but was
forced to by the acts of another.
between public and private law and between law itself and the state. Kelsen believed, “a
social order seeks to bring about the desired behaviour of individuals”. Raz notes, “The
intention to affect someone’s behaviour is replaced by the intention to create a norm.” 36 This
is similar to law, which is a norm that is present to prohibit certain behaviour, thus law and
state flow as one. For the state is but a complex of norms. Each one of the norms that,
collectively, amount to everything we mean by ‘the State’, is no more and no less an “ought”-
proposition than any rule located in any other part of the legal system; stripped down to the
minimum quality, all are of the same character. Kelsen believed that the rule of law should be
used in descriptive sense, so that they would not be confused with the norms created by the
law-making authorities, he believed the rule of law is the law of nature. The rule of law like
the law of nature connects two facts within on another as condition and consequence. The
condition here is the “cause”, the consequence is the “effect”. The principle according to
which natural science describes its object is causality; the principle according to which the
science of law describes its object is normativity. The rule of law (the legal norm) is a
prototype of good being rewarded and evil being punished.

THE RULE OF LAW: REVOLUTIONS AND THE LEGALITY UNDER THE PURE THEORY
The experience of the era of war which, in Western Europe closed in 1945 led to a former
entrenchment of constitutionalism and of human rights, as well as the revival of interest in
natural law. This resulted in the idea of legality (the rule of law, the Rechtsstaat), increasing
in value and acceptance. This in turn led to the focused interest in how to evolve and justify a
revolution regime regardless of whether there was violence or not, it could even have been
brought by a peaceful revolution. Kelsen famously applied his theory to situations where the
basic norm changes radically (i.e. revolutionary situations). According to Kelsen, when this
occurs that is, when revolution becomes a successful Coup d’etet a new basic norm is
generally presupposed, authorising and validating the new constitution.

Suppose that a group of individuals attempt to seize power by force, in order to remove the
legitimate government in a hitherto monarchic state, and to introduce a republican form of
government if they succeed. Then if the old order ceases and the new order regulates having
elements of the old order, by and large in conformity with the new order, then this order is
considered as a valid order. It is now according to this new order that the actual behaviour of
individuals is interpreted as legal or illegal. This means that new basic norm is presupposed.
Kelsen theory is both logical in theory and in practice. Although Kelsen never expressly
36
J. Raz, “The Purity of the Pure Theory”, (1981) Philosophia at 496.
authorised judicial use of his theory, it was cited as justifying judicial recognition of new
regimes following coups in Pakistan (1958) and in Uganda (1965, and also following the
Rhodesian Unilateral Declaration of Independence in 1965). In State v. Dosso37 the Supreme
Court of Pakistan had held usurper to be effectively in power hence lawful on Kelsenion
grant. A similar decision was reached in Uganda v. Commissioner of Prisons Ex P Matouw.38
On the other hand, the revolution may have taken the form (as in Rhodesia) of breaking loose
from a prior but continuing legal system (in Rhodesia’s case, that of the United Kingdom
whose parliament had in English law the power to legislate for the territory and whose
ultimate rule of recognition could not, of course, be affected by what the local usurpers did).

V. CRITICISMS OF PURE THEORY OF LAW

Several problems have been associated with the theory but not all those problems are
accurately stated arising from a substantial misunderstanding of the theory and in the
confusion in the minds of jurists as to the distinction between constitutions for example and a
basic norm. One example is the Black’s Law Dictionary, which notes that the Grundnorm
“may be an elaborate system of law-making, such as a constitution”. A constitution as will in
due course become clear, by the reckoning of Kelsen, is not a basic norm. This is not to say
that there are no problems for like every intricate theory the Pure Theory has come in for its
fair dose of criticisms.

Professor Stone was a key critic of Kelsen. He argued that Kelsen

distinction between ecstatic and dynamic basic norm represents a distinction between non
legal and legal normative orders.39 Lord Lloyd observes that Kelsen's analysis of the formal
structure of law as a hierarchical system of norms and his emphasis on the dynamic character
of this process are certainly illuminating and avoid some of the perplexities of the Austinian
system. A legal system is not an abstract collection of bloodless categories but a living fabric
in a constant state of movement. Kelsen himself recognises that to call the function of a judge
as political does not deprive it of its legal quality. There is a great danger that if we take the
watch to pieces and analyse each part separately, we shall never attain the overall picture
which shows how it works.

37
[958] 2 Pakistan SCR 180.
38
[1966] EA 514.
39
H. Kelsen, “Professor Stone and the Pure theory of Law”, (1964) Stanford Law Review at 1130.
The most obvious but least mentioned conceptual problem with the Pure Theory is that for a
positivist theory that is concerned with the law as it is, it is something of an irony that for all
the posturing, the basic norm that validates all other laws and norms should be derived not
from law as it is, not from positive law but from, of all places, a non-law or extra-law source.
This may at first sound like “ego” criticism but not to be dismissed with a wave of the hand is
that it acknowledges the important role played by non-law elements in any legal order but
particularly in the validity to be ascribed to positive law. Yet positivists recoil at the
suggestion that non-law elements may validate the law. The other conceptual or structural
problem is that it appears somewhat contradictory that on the one hand every norm below the
basic norm in the hierarchy draws from the fountain of validity of the basic norm and on the
other hand that there is a hierarchy with one norm finding validity in the norm directly above
it and so on till the basic norm is encountered. It does appear indeed that it has to be one or
the other though it has to be admitted that most, if not all the other touted validating norms,
whether they be constitutions, give the impression that they harbour this ambivalent
characteristic.40

Furthermore, in modern legal systems especially those with a written constitution, the validity
of laws are not tested against the standards of the basic norm but against the basic law, which
is the constitution. The basic law offers detailed standards of validity as requirement for all
laws while the bland and vague declaration of the basic norm can hardly offer such an
ascertainable and verifiable standard. There is legitimacy to this argument though the
propositions and illustration a little further ahead, of implied positivisation of the basic norm,
is bound to derogate a little from it. There is the lack of contemplation for “non-law” factors
in seeking to define law. In pointedly ignoring these factors, which may be sociological and
historical, it, like its other positivist brethren, bestows unquestioning superiority to form over
content and meaning. For instance it is justifiably contended that justice by any stretch of
imagination should never be outside the frame of any jurisprudential analysis of law.

The concept of the Grundnorm has been assailed as unreal and as merely a thinly veiled
Austinian sovereign. The concept of a basic norm behind which no further legal inquiry may
be made is considered unacceptable as there are a wide range of complex reasons beyond
simply that “one ought to obey the basic law” such as political, social, psychological reasons
which Curzon states may be behind the conscious response of citizens to legal duties. Further
40
Mohammed Enesi Etudaiye, ‘The Pure Theory of law and the fragile new Democracies of the Developing
World’, Commonwealth Law Bulletin Vol. 33, No. 2, 217–242, June 2007, available online at: available online
at <http://journals online.tandf.co.uk/http://dx.doi.org/10.1080/03050710701594597>.
than Curzon’s surmise, it is added that those reasons may even be subconscious. For a second
dimension to the basic norm problem, how can one evaluate what is sufficient minimum
support for the basic norm without an adventure into the so called metaphysical or non-law
facts as the political and the sociological? Indeed, while one agrees that there should be a
basic norm for its validating role, in modern constitutionalism the primacy of position of the
Kelsenian basic norm may not be easily rationalised. It still rankles that this non positive
concept would assume that role over and above the fundamental law or constitution.

Worse, there is the suspicion that the basic norm is not quite as non-positive as Kelsen is
wont to think or cares to explain. For one reason Kelsen’s basic norm is positivisable by
which is meant that the constitution may indeed enact a sanction or varying sanctions for a
breach or a variety of breaches of the constitution as the case may be. This is indeed rare but
quite possible and plausible. It is suggested that one instance of positivisation of an aspect of
the basic norm is the rule regarding the impeachment of the chief executive for gross
misconduct41 that would include gross constitutional breaches and a betrayal of the oath of
office subscribed to by him under the constitution. Even so jurisprudentially, if not entirely
constitutionally, when the courts pronounce certain official acts unconstitutional, it would
appear that the court is saying that the defaulting official had disobeyed the constitution he
ought to have been obeying and the sanction could be nullifying the effect of that official act.
This latter may be referred to as positivisation by implication.42

The criticism has also been made that coercion is overemphasised and that coercion is not the
only factor that compels obedience to the law. It has been suggested that, in a wide variety of
cases, in fact obedience may be propelled by a feeling of obligation on the part of the subject.
While in theory these criticisms appear attractive there are also substantive and substantial
questions to be asked. For instance, in spite of the criticisms, it has been nearly impossible for
analysts to point out which law forms have been inadvertently excluded from legal systems as
a result of his pontifications. Thus the theory, in spite of the criticisms is nearly all
encompassing if not entirely so. One is hard pressed to find any such law forms unlike the
Imperative Theory, for instance, which hurts its shoulder reaching for excuses to justify
including such as custom and delegated legislation within the framework of the theory.
Perhaps the most fundamental criticism aimed at the pure theory is that it analyses legal

41
Section 140 of the Constitution.
42
Supra note 38.
systems inaccurately particularly in one regard – his reference to a “historically first
constitution”.43

VI. PURE THEORY OF LAW VIS-À-VIS INTERPRETATION OF

CONSTITUTION

In the case of A.K. Gopalan v/s State of Madras,44 where it interpreted the expression, “the
procedure established by law” in Article 21of the Constitution of India as any substantive or
procedural provision of enacted law.

However, in Maneka Gandhi v/s Union of India,45 the Supreme Court of India adopted an
46
interpretation which brought Article 21 of the Constitution of India into a concept of
fairness, justness and reasonableness which is not there in the word of that article. The
meaning of the definition of ‘fair, just and reasonable’ could vary from person to person and
is a reflection of ideology of an individual which consideration if brought to bear upon the
test of constitutional validity of particular statute liable to be struck down if it is not in
conformity with the mental conception of an individual who is the judge.

While A.K. Gopalan’s case gave limitless power to the law maker, Kesavanda Bharati’s case
introduced the doctrine of basic structure according to which the term “amendment” in
Article 368 of the Indian Constitution means addition or change within the contour of the
preamble or the constitution but not replacement of the constitution or its basic foundation
and structure.

Kelsen’s Pure Theory provides the principle of judgement in Kesavananda Bharati, the Grund
Norm cannot be replaced except by revolutionary methods. Basic structure is unamenable,
limitless and indivisible like Austin’s Sovereign. Kelsen’s Grund Norm is alterable by
changing the presupposition.

43
Ibid.
44
.1950 S.C.R. 525.
45
.1978 A.I.R. 597.
46
Article 21. Protection of life and personal liberty -No person shall be deprived of his life or person liberty
except according to procedure established by law
VII. CONCLUSION

Hans Kelsen’s “Pure Theory” is more valid today than it has ever been. H. L. A. Hart
described Kelsen as “the most stimulating writer on analytical jurisprudence of our day”.
Kelsen’s theory represents a development in two directions. On the one hand, it marks the
most refined development to date of analytical positivism; and on the other, it marks a
reaction against different approaches that characterized the opening of the twentieth
century.47 Kelsen’s goal in developing the Pure theory was to make possible a value-free
jurisprudence or a “science of law”. This jurisprudence would focus on nothing other than
“cognition” of the law, that is how exactly “law is perceived and recognised”.

One must have in mind the fact that principal value of the pure theory of law, first of all, is in
that it presents the subject of its study, that is, positive law such as it is, without any
unfamiliar additions. It is not only that the methodological doctrine of great heuristic
possibilities is in question, but system learning as well that within its investigations ends to
embrace the universal legal order interwoven in the composition of which are certain ideas of
natural law all contained in many international law documents of general or regional
character.

J.W Harris remarks that effectiveness conditions validity. How do we measure its
effectiveness? “By two criteria first, is the norm, obeyed; secondly, when disobedience
occurs, is the section applied?”48 We should not look at this as a criticism of the theory but
rather as a further explanation of the Pure theory; in that according to the theory norms are
always in place so if a particular norm is held to be ineffective there is always another norm
to deal with that particular matter which gets its validity from the Grundnorm. Much of the
criticism of Kelsen theory lies with the issue of the Grundnorm . Dias identifies several
aspects of the Grundnorm; in what sense is the Grundnorm a norm? It does not conform to
Kelsen’s own formulation of a norm; “if something is to occur they ought to happen” it only
empowers and does not impose sanctions. It should be remembered that Kelsen argued that
this basic norm is valid because it is “presupposed” to be valid because without this pre-
supposition, no norm-creating act. If one is to believe this aspect of his theory then you
cannot argue that it is not a norm, and Dias fails to recognise this. Stanley Paulson has argued
that Kelsen’s neo-Kantian argument fails as a methodology grounding in the legal sphere
because Kelsen does not demonstrate that thisis the only way to understand the validity of
47
R.W.M Dias, Jurisprudence,5th ed. (London, 1985) at 358.
48
M.L.R. Stone, “Mystique and Mystery in the Basic Norm”, (1963)  Modern Law Review at 37.
law. It is possible for example that in a shared value-system, some notions of justice or
morality-underlies validity, in addition to, or instead of reasoning by legal links. 49

However, this theory has stood the test of time unlike the Natural law theory, which over the
centuries has slowly lost its followers to more practical theories and it is now in its dormant
stage. It would appear that because Kelsen’s Pure theory is logical and related to reality it has
retained its validity, Just as the highly practical theory of Max Weber’s (Weberian
methodology).There is surely sense in which the Pure theory does offer something of value
for those working in the field of what we now generally call jurisprudence, while its
orientation appears to be away from the normative concerns of contemporary jurisprudence.
The Pure theory is expansionary, and one of most significant things about theory is that each
and every law or “norm” is a consequence of a prior political decision. 50

Thus, the pure theory of law of Hans Kelsen, regardless of its principled negative relation
towards the natural law teaching, starting exactly from the attitude that law must be presented
such as it is, is forced, whether it wants to or not, also to deal with the study of the
corresponding contents of natural law, which in present times under the name “human rights"
make an essential integral part of the existing international law.51

One cannot say that Hans Kelsen was totally wrong in classifying law as pure and impure.
HLA Hart, a later positivist, though criticized Kelsen to some extent for the exclusion of
“alien elements”, derived the rule of recognition from Hans Kelsen’s Pure Theory of Law.
Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm.
Further Kelsen’s pure theory of Law had a far-reaching impact on the later positivists like
Tony Honoré and Hart. Kelsen made original, striking and valuable contribution to
jurisprudence and he considerably influenced the modern legal thought.

In the last, the researcher would like to put forth a modern legal example where Pure theory
of Law is applicable. The current political turmoil and legal conflict between the judiciary
acts the government of Pakistan, has shown a retreat to the decision in Jilani ,52 in that the
former Chief Justice Chowdary ruled against the former President General Musharraf’s.

49
S.L. Paulson, “The Neo-Kantian Dimension of Kelsen’s Pure theory of Law”, (1992) Oxford Journal
of  Legal Studies at 311.
50
Ibid.
51
Available at: <www.wto.org/english/news_e/sppl_e/sppl12_e.htm>
52
Jilani v. Government of Punjab Pak LD [1972] SC 139. This had overturned the earlier decision in Statev.
Dosso [958] 2 Pakistan SCR 180.
This decision had elements of the Pure theory of law’s Grundnorm , in that he ruled against
the government basing this decision as a norm which arose from the Grundnorm constitution.
As it was necessary for the rule of law to survive and for a countries survival in the
international law realm (In this case the British Common wealth which requires certain
international requirements to be fulfilled in order for a country to become part of the
Common wealth or risk being removed from it, if it is already part of it).This also highlights
Kelsen’s belief that international law has supremacy over municipal law. Currently Pakistan
has been suspended from the commonwealth, becauseof the emergency rule placed by
Musharraf in 2007 and his removal of the Supreme Court judges in 2007.53

53
http://news.bbc.co.uk/2/hi/South-asia/71084543.stm.
VIII. REFERENCES

 Edgar Bodenheimer, Jurisprudence – The Philosophy and Method of the Law., 1962
Harvard University Press; London: Oxford University Press.
 V.D. Mahajan, ‘Jurisprudence and Legal Theory’, 5th Ed. 2012, Eastern Book
Company.
 M. D. A. Freeman, ‘LLOYD’S introduction to Jurisprudence’, 8th Edition, 2008,
Sweet & Maxwell.
 Torben Spaak, ‘Kelsen and Hart on the Normativity of Law’, Stockholm Institute for
Scandianvian Law 1957-2010, pg. 397 available at:
<http://www.academia.edu/Documents/in/Pure_Theory_of_Law>.
 S.K Jahangir Ali, ‘An Analysis of The Kelson’s Theory of Law’, Available at:
<http://www.academia.edu/2482894/An_Analysis_of_the_KelsonS_Theory_of_Law
>.
 Mridushi Swarup, ‘Kelsen’s Theory of Grundnorm’, Manupatra, available at:
<http://www.manupatra.com/4>.
 Mohammed Enesi Etudaiye, ‘The Pure Theory of law and the fragile new
Democracies of the Developing World’, Commonwealth Law Bulletin Vol. 33, No. 2,
217–242, June 2007, available online at: available online at <http://journals
online.tandf.co.uk/http://dx.doi.org/10.1080/03050710701594597>.
 Edwin W. Patterson, Hans Kelsen and His Pure Theory of Law, Volume 40, Issue 1,
Article 2, California Law Review, Available at:
<http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?
article=3427&context=californialawreview>
 Zoran Jelić ‘An Observation On The Theory Of Law of Hans Kelsen’, UDC 340.12
Facta Universitatis Series: Law and Politics Vol. 1, No 5, 2001, pp. 551 – 570
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