eas CHAPTER VII THE PURE THEORY OF LAW INTRODUCTION ee of the theory; Renetion against natural Iaw theory; Written tutions. A legal theory, in most cases, takes inspiration from the local legal p= It analyses and seeks to give a juristic basis of such legal system and tries to present solution of the problems. We have discussed in the preceding pages how the judicial system in America led to the legal thought called ‘realism’. Before discussing the ‘Pure Theory of Law’ it is necessary to throw some light on the background of this theory. The. eS erie ich is also known a the “Vienna School’ of legal thought was propounded by Hans Kelsen, @ professor in Vienna (Austria) university. Though the first exposition of theory took place in 1911, it came in full bloom in post- war 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. Though the natural law was rejected in England as early as in the 19th century, in the continent it had its footing till the beginning of the 20th century. New theories in the 20th century started inflicting severe blows on ‘Natural Law’ theories. The ‘Pure Theory of Law’ also, rejected the idea of natural law. Secoridly, Kelsen’s theory came also as a reaction against the modem 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 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 organisation which may control such activities. The primacy of international law which the ‘Pure Theory’ seeks to establish can be explained in this context. “Pure theory is close to some other theories’. Kelsen’s theory is in some respect close to the theory of Austin. Both point out the coercive character of law and both are positivist. In one respect itis close to Reais st too wants To remove all illusions and Eistractions from law. Some of the Kelsen’s conclusions , though reached from different premises, bring him close to sociologists and specially to Duguit, But the main point of is theory is that it proceeds to free “the law from the metaphysical mist with which it has been covered at all time by the speculations on justice or by the doctrine of ‘jus naturalie’ ‘Therefore, his theory is called the “Pure Theory of Law.” The. following extracts reproduced from the work of Kelsen will be able to explain the definition, nature and basic principles of the Pure Theory of Law— __ ‘The Pure Theory of Law is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject-matter. It endeavours to answer the = = (67) “ocatmeu wit GaMS¢58 CE ‘ co and JURISPRUDEN pr it to be? a scien hat oug! fis concerned from such question: What is the law? But not the question, w! not a politics of law. flaw means th e That all this described as a “Pure” theory of aw mi That solely with that part of knowledge which deals with '™™ _ rnatter © law its knowledge everything which does not strictly belong t0 the $* jee ements. TS 4 ne is, it endeavours to free the science of law from all fore'é fundamental methodological principle— reage in these ‘The Pure Theory of Law seoks to define clearly its objects of directions in which its autonomy has been most endangere of methods. Law is a social phenomenon. Society, however, 's some! oO science is not om nature, science an ently diferent association of elements. It V1 s¢ possible to disappear into natural science, then law must be distinguished in th manner from nature...... In defining the law as the norm, and in restricting legel science a different from that ofthe legislative and executive organs) t0 knowleGBs Oi the sume time delimit law from nature andthe science of law, 25 8 20° from all other sciences which aim at explaining causal, natural processes:--~ g legal norms not The Pure Theory of Law, as a specific science of laws consider: ts. And it as natural realities, not as faet in consciousness, but as meaning -eontents considers facts only as the content of legal norms, that is only determine’ roms. Its problem is to discover the specific principles of a sphere of meaning What is here chiefly important is to liberate law from that association’ which has traditionally been made for it. Its association with morals. This is not of course to question the requirement that law ought to be moral, that is, good. That requirement 1s self-evident. What is questioned is simply the view that law, as such, is @ part of morals and that thevefore every law, as law, is in some sense and in some measure moral ‘To free the theory of law from this element is the endeavour of the Pure Theory of Law. The Pure Theory of Law separates the concept of the legal completely from tof the moral norm and establishes the law as a specific system independent even of jence, ‘/the moral law..... The law, or the legal order, is a system of legal norms. The first question we have to answer therefore, is this: What constitutes the unity in diversity of legal norms? Why ; docs a paricular legal nom belong oa particular legal order? A multiplicity of norms | Constitwtes @ unity, a system, an order, when validity can be traced back to its final source in a single norm. This basic norm constitutes the unity in diversity of all the socme which made up the system. That a norm belongs to a particular order is only to be determined by tracing back its validity to the basic orm constituting the order. According to the nature of the basic norm, i. the sovereign principle of validity, we may distinguish tooo ifferent kinds or orders ox normative system. In the first such system the norms are valid by virtue oftheir content, which has a directly evident quality compelling recognition, This contextual quality the norms receive by descent from a basic norm to whose cont Ce aaaeay is velated a8 particular to universal. The norms of morals are of this character. on tis ¥ oe sale wiul VarnS¢THE PURE THEORY OF LAW 59 onl aa Gras legal norm only because it has been constituted in a particular an ee eom Of 8 definite procedure and a definite rule, Law is valid only a8 postive ie (constuted) law. Therefore the basic norm of law can only be the fundementa| le, according to which the legal norms are to be produced; it is the ~ fundemental condition of law-making. The individual norms of the legal system? are not derived from the basic norm by a process of logical deduction. They ‘must be constituted by an act of will, not deduced by an act of thought. If we trace back a single egal norm to its source in the basic norm, we do so by showing that the procedure by which it was set up conformed to the requirements of the basic norm.— (a) This analysis of the function of the basic norm brings to light also a special peculiarity of the law. The law regulates its own growth and its own making. The unity of the legal order is a law-making unit. The law is not a system of equal, side-by-side norms; it is a hierarchy with different lawyers.”! ‘Pure Theory of Law’ Law is a normative science; Law norms are ‘ought? norms. According to Kelsen, law is a ‘normative science.’ But law norms have a distinctive feature. They may be tinguished from science norms on the ground that norms of science are norms of bL ‘being or 1S'(Sein), while the law norms are ‘Ought’ (Sollen) norms. Law does not attempt to describe what actually occurs but only-prescribes certain rules. It says, ‘if one breaks the law, then he ought to be punished.’ These legal Ought" torms differ from {morality norms in this respect that the former are backed by physical compulsion which the latter back, but Kelsen does not admit the command theory of Austin as it introduces a psychological element into the definition of law which Kelsen avoids. Hierarchy of normative relations. The science of law to Kelsen is the knowledge of hierarchy of normative relations. He builds on Kant's theory of knowledge and extends this theoretical knowledge to law also. He does not want to. include in his theory ‘what the law ought to be and speaks of his theory of law as a structural analysis, as exact as possible, of the positive law, an analysis free of all ethical or political judgments of value.’ The task of legal theory is to clarify the relations between the fundamental and all lower norms, but not to say whether this fundamental norm itself is good or bad. That is the task of political science, or of ethics, or of religion. It represents within the realm of legal theory the quest for pure knowledge in its most uncompromising sense, for knowledge free from instinct, volition, desire. Thus, the ‘Pure Theory’ on the one hand, avoids any discussion of ethics or natural law, and, on the other hand, it reacts against the modem sociological approaches which go to widen the boundaries of jurisprudence to a very large extent. Kelsen attempts to establish universal principles in his legal theory, and, therefore, he may be said to be in favour of { general jurisprudence, Validity of legal norm; ‘Grundnorm’, Dynamic Process. Now coming back to the ‘norm’, we should understand its practical working in a legal system. Every legal act relates to a norm which gives legal validity to it. The legal norm derives its validity ) 1. HKelsen:'The Pure Theory of Law, Extracted in Lloy had’ Introduction to Jurisprudence, PP.291 to 295. ovate wiur GainS¢60 JURISPRUDENCE ction. fsa "01 but he from an extemal source, that is, from a particular ‘ought OOP" oe of ae Kelsen comes near Austin (that the sanction is the necessarY C1 of sanction ! differs from him about the conception of the sanction. Austi’s °° sanction this Wa a if itis something standing outside the rule of law, but Kell os, In ely that another norm not different in nature from the norm to which i Sigmatel 1 every legal norm gains its force from more general norm _ *Grundnorm is he hierarchy relates back to an initial norm or initial hypothesis COL Cr adnorm’ is (OE is from ths norm that all inferior norms derive their force. THE cadens down 1D Staring point in a legal system, From this base Tegel sy” OE. elsen cal gradation becoming more and more detailed and specific as it ProBP™ 1 focussinB this process ‘gradual concretizaton’ of ‘Grundnorm’ or the basie NOE. ory ae the law to specific situations, This is a dynamic process. He calls f rules complete a” because Austin’s analytical jurisprudence regards law as a ere ir creation. But the ready for application without paying any heed to the process of the ‘owns creation and | study of dynamics of law is also necessary because law regulates its Kelsen’s theory includes it ith eee concerned Wit A The test of ‘Grundnorm’—‘minimum effectiveness’: Jurist not ct always a ‘the nature and origin of ‘Grundnorm’. In every legal system thee ale, in ‘Grundnorm’ although its forms are different in different legal systems. Fo ‘Constitution’ Britain the *Grundnorm is ‘Crown in Parliament’ and in U.S.A. it is the COMUNE” | * The ‘Grundnorm’ can be recognised by the minimum effectiveness which it pores But any discussion about the nature and origin of the ‘Grundnorm’ is not within he Province of the ‘Pure Theory of Law.’ These are pre-legal questions in which @ carla | Rot concerned. The task of legal theory is only to clarify the relations between ‘Grundnorm and all other inferior norms and not to enter into other questions as goodness or badness t of ‘Grundnorm’, Any discussion of such questions may involve the study of things and subjects which may adulterate the theory. But before applying Kelsen’s theory to any legal system one must discover the ‘Grundnorm’. Essential foundations of Kelsen’s Theory. To summarise, the essential foundations of Kelsen’s system have been enumerated as follows: (1) The aim ofa theory of law, as of any science, is to reduce chaos and multiplicity to unity, 2) Legal theory is science, not volition. Its knowledge of what the law is, the law ought to be, (3) The law is a normative not a natural science, (4) Legal theory as a theory of norms is not concerned withthe effectiveness of legal norms. | (5) Atheory of awis formal, atheory of way of ordering, chan, not of what ‘ ging.contentsina specific (©) The relation of gal theory toa parular sytem of positive law isha of possible |) elas diningused frome weed oe a ae | aching ofthe analyte! schoo The lesa! norm derives vatay re, Sia { i 1. SeeFriedmann w.,Legal Theory(Sth Edi.)p. 276. ovate wir GamScCw ‘THE PURE THEORY OF LAW 61 source, and the particular “ought” of the legal, as distinguished from the moral norm, is the sanction, The threat of a sanction which shall be imposed if a certain thing is done or not characterises the legal relation. Such sanction must be threatened by an authority, and thus the question of the source of legal norm arises. This is Austinian, but there is a significant difference. For Austin, law is a command, for Kelsen, the imperative would introduce a psychological element foreign to the law. The legal norm does not constitute a command, but a relation of condition and sequence. The relation this constituted is one of subordination, and any given legal system constitutes a hierarchy of norms, each of which must be derived from a superior source. Implications of the ‘Pure Theory’ ‘The implications of Kelsen’s theory are wide and many. It covers concepts of state, sovereignty, private and public law, legal personality, right and duty and international law. A brief discussion of these implications is necessary. | Law and state not two different things. Kelsen emphatically denies the existence of a ‘sovereign’ as a personal entity. He denies also the existence of state as an entity distinct from law. When all derive their power and validity ultimately from the ‘Grundnorm’ there can be no supreme or superior person as ‘sovereign’. In the same way, the ‘state’ is but a simple way of conceiving the unity of legal order. The reality of state is that it is a system regulating the social behaviour in a normative order. But such a working can be discovered only in a legal system. Really speaking , law and state are the same, and the difference between them appears because we look at them from two different points. 1 No difference between public and private law. According to Kelsen, there is no difference between public and private law. When all law derives its force from the same ‘Grundnorm’, two entirely different characters cannot be attributed to it on the ground of being a difference in certain respects. Contracts made between parties stand on an equal footing with criminal law, because in both cases the validity or the power is derived from the same ‘Grundnorm’. No distinction between them can be made on the ground that they protect interests of different nature. Private interests are protected in public interest. He traces a political ideology behind this distinction—a motive to elevate public Iiw and justify ‘authoritarianism’. On this point though from different premises, Kelsen reacties the same conclusion as Duguit and Renner. ‘ ~~ No difference between natural and ‘juristic’? persons. On the same principle. Kelsen does not admit any legal difference between physical and juristic persons. All legal personality is artificial and derives its validity from superior norms. ‘Personality’ inlay means an entity capable of bearing rights and duties. The legal order confers personality where it wills. Law treats human beings also as an entity having rights and subject to duties, So in law, they differ in no way from legal persons. Conclusions reached by Kelsen on this point are similar to those of modern sociological jurists. No indiyidual rights. Kelsen's conception of law a as system of normative relations leads to conclusion that there is no such thing as individual right in law. Legal duties are/the ‘essence of law’. Law is always a system of ‘oughts’. The concept of right is not bagically essential for a legal system; ‘legal right is merely the duty as viewed by the person entitled to require its fulfilments:’ In criminal law, in most part, the idea of f ‘ui — OCdiiteu witit vac62 - i JURISPRUDENCE ed. ACCOT eons ; jnst the ACcUSST ignplication® 4 individual right has ceased and the State itself moves 284i°" 1. also. T a Kelsen, the idea of individual right may disappear from cOMt3=t ing individual of this proposition are that there can be no inalienable 18! K legal theories have established, the «pure theory and ms Supremacy ,of International law. As described earlier, who sa ional law Came in full bloom after the First World War. The people, 1° Internationa) ee destruction that the war had brought, wanted a strong ia vemises Kelsen tied © which may control the arbitrary activities of States. From his nesses and Uae tof establish the supremacy of International law. On no point the Weal | qumbe ed of his theory are more exposed than on ths. It made him "0 1 1 ye consider inconsistencies. Kelsen is out to say that the International law fact that International aw a ‘juridical order’. To remove the difficult which arises by the fact Tt + onpulsion’, does not possess all the characteristics of law, especially the ‘aPPARAUY 7 ing was in he says that it is comparable to ‘primitive law.’ As law in the Deb’ seer a customary form without an adequate sanction and assumed the Pese Oh ayy course of evolution, so the present International law is (like ane law has. So far stage, and in future it will have all the characteristics which the modern T0™ as the ‘Grundnorm’ of Intemational law is concerned, Kelsen points ~ are war and ‘pacia sunt servanda’. He says that the sanctions of Intemational Law °° © against reprisals. His argument on this point is very strange and unconvincing. Crit 4 it shall be presented later on. i Criticism Against Kelsen’s Theory .| His ‘Grundnorm? vague and confusing. The first point in Kelsen’s theory which is greatly criticised his conception of ‘Grundnorm’. Though Kelsen has given its characteristic as possessing ‘minimum effectiveness’ it is very vague and confusing and it is difficult to trace it out in every legal system. But its discovery is a condition precedent for a successful application of Kelsen’s theory to a legal system. Kelsen seems to have given his thesis on the basis of the written constitutions as Austin created his ‘Sovereign’ on the basis of the English system of government but even in written Constitutions, ‘Grundnorm’ is made up of many elements and any one of these elements alone cannot have the tile of “Grundnorm’. Another criticism against the conception of be a composite one, as in the United States of Amerie 4 a ‘a, or Great Britait the fact that such an ultimate authority must exist.”. So far as the ctitism by he a tas futorical School is concerned, Kelsen is decidedly a poco) He jurists this criticism does not hold good against him Positvist, and, therefore, ill cause adhlteration f ocdiilicu Wwiut LallistTHE PURE THEORY OF LAW 63 in the ‘Pure Theory’ because the impurity of ‘Grundnorm’ would infect the legal norms also which emerge out of it. Prof. Stone observes: ‘The social effects and questions of Justice excluded , though from all the side-doors and backdoors of his pyramid of norms, the front-door is wide open to both.” Second, the task of deriving legal norm from ‘Grundnorm’ or the process of concretization-deriving specific norms from more general form—involves the acts of numerous individuals in such deduction and application, as Judges and legislators. They in their turn give it their individual ‘creative’ touches. The study of such acts is very important. But according to Kelsen, any study of this nature Would bring impurity in the theory. Thus theory excludes a very important part from the study of law. No practical significance. Sociological jurists criticise it on the ground that it lacks Practical significance. Prof. Laski says, ‘Granted its postulates, I believe the pure theory to be unanswerable but I believe also that its substance is an exercise in logic and not in life.’ Some see Kelsen as “beating his luminous wings in vain within his ivory tower.” — Criticism not well directed. So far as the criticism against Kelsen’s view about the Purity of legal norms is concerned, it has some truth but in no way it impairs the initial thesis of the theory, namely, the hierarchy of norms. The factors on which the ‘Grundnorm’ is founded are Pre-legal and hence they are outside the study of law. Even ne Wecognise the fact that the purity of legal norms cannot be maintained, the theory is Kormerially affected. Kelsen develops his theory from the philosophical premises of Ket and aims at establishing a universal theory of law, Therefore, it was not necessary for im to take into consideration other factors which affect or influence law. It may bea limtion of the theory but it is not a weakness or defect of it. The criticism by Klee’ that the theory lacks practical significance is out of point. It is clear the. Kelsewanted to make his study a science and took a strict positivist view. He purged Of pecicie®: Such as ‘natural law,” or ‘justice’ and in this way his work carries « lot of prac] value. ~ ‘Natel law? ignored. Some criticise Kelsen’s theo law’ frotaw. ‘Natural law’ considerably affects I society, amy j wea Stn aaires of egal order, therefore, he could not take these extra legal Tf ‘natu Ceration. It does not mean that he denies the existence of a ‘natural bow tolls be 4s incorporated in the positive law, it stands in the hierarchy of ly within the field of study. ae ‘en's