Name: Mayank Raj

Roll No.: 2021PGLAW14

Subject: Jurisprudence of Punishment

1. Critically examine pure law theory.

Answer: The idea of a Pure Theory of Law was propounded by the formidable Austrian
jurist and philosopher Hans Kelsen (1881–1973) (see the bibliographical note). 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 endeavors 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”. Kelsen‟s theory stands at the same level and has a similar
importance to Austin‟s theory. Kelsen believes the concept that the law should be pure from
any investigation such as sociological, political, historical, logical, etc. The law won‟t be
supported all those parts underprivileged, connected, or mixed. Thus, according to Kelsen,
“the law will stand on its own”.

1. Law is a normative science:- According to Kelsen, the law is a „normative science‟, but
law norms may be distinguished from science norms. Kelsen defines „science‟ as a
system of knowledge arranged according to logical principles. According to Kelsen, a
norm is a rule prescribing a certain behaviour. He distinguishes between legal norms and
moral norms. He told that moral norm only says that “what a person should do or not do”
but the legal norm says if a person does any act against the norm then he will be punished
by the State. Kelsen does not admit the command theory of Austin as it introduces a
psychological element into the definition of law which Kelsen avoids. Kelsen believes the
law should be defined as Depsycholised command. Kelsen also considers „sanction‟ as an
essential element of law but he prefers it to call it „norm‟. Kelsen‟s theory of law is an
analysis free of all ethical and political judgements or values.

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Norms and its validity:
According to Kelsen, in order to assign the legal meaning to an act, we take the help of
Legal norms. NORM is the meaning of an act of will by which certain behaviour is
commanded or permitted, or authorized.

The validity of norms is described as :

 Validity means the specific existence of the norm.
 Validity of a norm means that a norm is binding, and an individual ought to
behave in the manner determined by the norm.
 Kelsen captures the following two postulates:
 Every two norms that ultimately derive their validity from one basic norm belong
to the same legal system.
 All legal norms of a given legal system ultimately derive their validity from one
basic norm.
 The reason for the validity of a norm can only be the validity of another norm.
 A legal order does not lose its validity when a single norm ceases to be effective
nor does a single norm lose its validity if is only ineffective from time to time.
 Effectiveness is a condition for validity but it is not valid. The question of the
validity of a norm precedes the question of its effectiveness.
 The reason why a norm is valid and why an individual ought to behave in a certain
way, cannot be ascertained by a fact, i.e., by a statement that something is; the
explanation for the validity of a norm can‟t be a fact.

2. Separation of law from other social sciences and morals:- Kelsen limits the scope
of jurisprudence by excluding its relation with other social sciences. He differentiates
law from politics, sociology, metaphysics, and all other extra-legal disciplines.
According to Kelsen, an acceptable theory of law must be pure i.e. logically self-
supporting, and not dependent upon extra-legal values, the law of nature, or any other
extraneous factor (such as the sociological, political, economic, or historical influence
of law).

3. The Grundnorm:- Kelsen‟s pure theory of law is based on a pyramidical structure of

hierarchy of norms which derive their validity from the basic norm which he termed

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 as „Grundnorm‟. In other words, we can say that if the other norms are against the
Grundnorm then those norms will be invalid. In the pyramidical structure of
hierarchy, the Grundnorm is at the top and is fully independent of all the other norms.
The subordinate norms are controlled by their superior norms. Kelsen said that all the
other norms in our legal system can be traced to the final source and that the final
source is Grundnorm. Kelsen states that there should be a Grundnorm in every state
not necessarily it‟s the same for all the states. Every state can own its different
Grundnorm.
For example– Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC,
and other laws check their validity from the Grundnorm which is Constitution. If in
IPC any such law made which is against the Grundnorm then they will become
invalid.
The Supreme Court of Pakistan in State v. Dosso1 had also upheld the Kelsenite
theory of effectiveness and validity of revolutionary government which had come into
power by overthrowing the legitimate Government and destroying the previous
Constitution. However, this decision was subsequently overruled by the Supreme
Court (of Pakistan) in Jilani v. Government of Punjab2, which rejected the authority
of the revolutionary government by overthrowing the existing regime. The same
history repealed again in Pakistan in 2007 when the Military General Parvesh
Musharraf removed Nawaz Sharif‟s popular Government in 2007 by military coupe
d‟etrat and assumed reigns of Pakistan as its President repudiating the Constitution to
suit his own dictatorial military government. He legitimatized in a coup and declared
a state of emergency in October 1999 and suspended the Constitution and closed the
Prime Minister‟s office and put Nawaz Sharif in Jail. He asked the Judges of the
Supreme Court to take a fresh oath of allegiance to his new military government and
remained in office as President from 2001 to 2008.
These instances clearly show that Kelsenian grundnorm during the revolutionary
change has to be determined by the political and extra legal expediency in the context
of the prevailing situation and changed conditions.

1
1958 SC Pak 533
2
1972 SC Pak 139

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Objectives Of Kelsen‟s Pure Theory
Kelsen 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 ordered symmetry
in the legal system, so the sources of law can be traced. Kelsen‟s pure theory of law
almost covers all legal concepts such as legal personality, rights, and duties, private and
public laws, etc.

Essential Features Of Kelsen‟s Pure Theory

 The essential features of Kelsen‟s Pure Theory of law are as follows –
 The aim of a theory of law, as of any science, is to reduce chaos and multiplicity
to unity.
 Legal theory is science, not volition. It is knowledge of what the law is not of
what the law „ought to be‟.
 The law is normative not a natural science.
 Kelsen‟s strict separation of law and morality is an integral part of his pure theory
of law.
 It is a formal theory confined to a particular system of positive law as actually in
operation.

Criticism
 Grundnorm is vague and confusing.
 Kelsen also said that the law should be kept free from morality. Whether it is
possible to keep the law free of morality? Kelsen insisted on the law to be
effective and thus he accepted indirectly morality as a part of effectiveness.
 Kelsen 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”.
 From where grundnorm takes its validity.
 Kelsen‟s pure theory is without any sociological foundation as it excludes all
social facts and needs of the society.

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Conclusion
Hans Kelsen gave a huge contribution in answering some basic questions about the law.
There are mainly three aspects of Kelsen‟s Pure Theory about the law.
The First aspect of Kelsen‟s pure theory is theories of law should only be related to law.
He excludes other social sciences and morality. Law should be in its pure form and this is
the reason he named his theory as Kelsen‟s Pure theory of law.
The Second aspect of Kelsen pure theory is that whole system of law is the hierarchy of
norms in which the basic norm that is also known as Grundnorm is at the apex level and
all the other norms check its validity from the basic norm. if any norm is against or
contradictory to the basic norm then that norm should be invalid. Also, he said no one can
question the validity of Grundnorm.
The Third aspect of Kelsen‟s pure theory is that law norms are different from other
sciences, law is a normative science. He differentiates between moral norms and legal
norms. He belongs to the Analytical school of jurisprudence but he opposes the command
theory of Austin.

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 2. Identify restorative justice in Indian law.

Answer: The concept of restorative justice is that concept of justice where organizing a
meeting between the offender and the victim takes place for a greater benefit. Justice is sort
here by discussing why did they do this act, what was their mindset, what led them to these
acts and what harm has their actions caused to the victim. Amongst all these points being
discussed the most important point how is the offender willing to repay/repair the damages
caused to the victim.
The offender can repay the victim in cash or kind. Being affectionate towards the victim with
a feeling of contrite or simply feeling remorseful. It urges the offender to take responsibility
of their acts and actions. This also instils in the them the feeling of doing good for the
community at large by reforming them as a person.
As it is known that offences come attached with punishment. But according to Albert Eglash,
the person who used the term “restorative justice” for the first time in 1977, said that justice
have different approaches as under:
 "retributive justice, based on punishment”
 "distributive justice, involving therapeutic treatment of offenders”
 "restorative justice, based on restitution with input from victims and offenders.”

Definition of Restorative justice

According to John Braithwaite – it is a process “where all stakeholders affected by an
injustice have an opportunity to discuss how they have been affected by the injustice and to
decide what should be done to repair the harm. With crime, restorative justice is about the
idea that because crime hurts, justice should heal. It follows that conversations with those
who have been hurt and with those who have inflicted the harm must be central to the
process.
Although law professionals may have secondary roles in facilitating the restorative justice
process, it is the citizens who must take up the majority of the responsibility in healing the
pains caused by crime. The process of restorative justice thus shifts the responsibility for
addressing crime.”
Carolyn Boyes – Watson defines it as – “a growing social movement to institutionalize
peaceful approaches to harm, problem-solving and violations of legal and human rights.
These range from international peace making tribunals such as the South Africa Truth and

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Reconciliation Commission to innovations within the criminal and juvenile justice systems,
schools, social services and communities. Rather than privileging the law, professionals and
the state, restorative resolutions engage those who are harmed, wrongdoers and their
affected communities in search of solutions that promote repair, reconciliation and the
rebuilding of relationships. Restorative justice seeks to build partnerships to re-establish
mutual responsibility for constructive responses to wrongdoing within our communities.
Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and
community through processes that preserve the safety and dignity of all.”

Its Application
It is often felt by various functionaries of the court that in matters or suits, a victim doesn‟t
get peace and feels that the justice done is insufficient. It deepens their wounds and doesn‟t
service the purpose of the term. This type of justice focuses on reforming the person rather
than putting him behind the bars. A way is opted to reach a consensus between victim and
offender.
In Criminal cases, the judges and magistrates arrange bail of the person by setting conditions
of his release, dismiss charges and impose sentences. Then the correctional officers award
privileges and revoke parole for such offenders.
This type of practice is prevalent in Minnesota, United States. It has been exercising
restorative justice since 1990‟s under Department of restorative justice initiative.
Application of Restorative Justice in India
The enforcement of the Indian Constitution paved way for “Nyaya Panchayats”, which
focuses on dispute resolution mechanism at the basic level. The concept of „khap
panchayats‟, Mahila Panchayats and Nari Adalat have been prevalent in India and practice
restorative justice.
Under Civil Courts, a special set of courts were established for resolution of disputes relating
to family matters like divorce, guardianship, custody, other matrimonial matters. Apart from
that the concept of Alternative dispute resolution in India is practiced by various ways, but
Arbitration and Conciliation Act, 1996 set the basis of restorative justice in India.
Section 320 of Code of Criminal Procedure, 1973 says that in cases of compoundable
offences “There are certain offences where a particular person is affected and not the entire
society. these offences would encompass a person‟s feelings”

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The Concept of Plea Bargaining under section 265 A- L, enshrined in chapter XXI – A of
Code of criminal procedure, also encompasses the provisions of restorative justice in India.

Juvenile Justice Act, 2015 and Restorative Justice

It is a well-established fact that in India, child offenders are sent to rehabilitation centres.
They aren‟t awarded punishment, rather are sent to get reformed under reformative practice
of justice.
“As per section 18 of JJ Act, 2015, the JJB can pass orders for CCL such as:
 direct the child to participate in group counselling and similar activities;
 order the child to perform community service under the supervision of an
organization or institution, or a specified person, persons or group of persons
identified by the Board.”

Conclusion
This concept is not new, and has existed in the society since ages, people have chosen and
have opted for other ways of achieving justice. But with changing times, crimes is growing at
a rapid pace too, and sometimes for certain compoundable or non-serious offences, people
cannot be put behind bars. They can be reformed so that they can learn from their mistakes
and can deter themselves from doing these offences in the future.
This concept also comes in handy for children, who do not know the consequences of their
actions. They have their whole lives ahead, putting them behind bars, might not be the wisest
decision. But restoring them with a peaceful mindset at their tender age can not only change
them as an individual but can also mould their life for something positive.