HANS KELSEN - THE PURE THEORY OF LAW

Background:

Kelsen (1881-1973), is one of the most prominent European Jurists, he is Famous for drafting
the Austrian constitution in 1921 as well as Drafting the First detailed and Authoritative guide
on UN Charter.

Kelsen’s Legal theory as he calls is the Pure Theory of Law, his style of Legal positivism is
different from Anglo-American Jurisprudence style. His work can be compared with John
Austin (to the extent of application of Sanctions) and H.L.A Hart (to the extent of Rule of
Recognition).

His work focuses on Existence of Law as collection of Norm which gets their Legal Validity from
the fictional Grundnorm. Similarly, his theory focuses on a valid and effective Legal revolution.

His work was published in German and was later translated in English, due to this translation
the true essence of his theory is often obscured.

PURE THEORY:

Kelsen tried to explain that Law Independent of any Ideological Content I.e. Free from Morality
or Religious influence (Positivism).

His theory is a Description of Law (Descriptive Approach as opposed to Prescriptive approach).

His theory States that Law is a Collection of Norm i.e. (Collection of Ought propositions).

‘Ought Statements’ Prescribes the Behavior of the Individual or the Society, whereas, as ‘Is
Statement’ is one which Describes or Explains a particular Statement.

In Kelsen’s theory if Ought proposition should be carefully seen as this theory does not say what
the Law ought to be rather it simply says that Law is a collection of ought proposition.
A Norm, in Kelsen’s term is an Essence and Action directing Statement. It should not only be
seen as imposing a duty but also Empowering the State Officials to impose sanctions where
such duty is breached.

Norms can be divided as Legal Norms or Moral/other Norms. Moral Norm are subjective
preferences of a person whereas, Legal Norms are the Norm which are forming part of a Legal
System.

Legal Norms.

According to Kelsen, facts are Intrinsically meaningless. A Factual occurrence does not have any
meaning attached to it unless same meaningful Statements are attached with it. Norm give
meaning to the facts in absence of any Norm the facts are meaningless.

A Citizen cannot breach Law as his actions are facts (he calls them as Delicts). A Delict has no
meaning unless there was a Norm which empowered the official to impose sanction in case of
particular delict.

According to Kelsen Law is not directed towards individuals but rather towards the State
officials.

If Law States that murder is a crime, then if A Kills B, there is no Breach of Law as what A has
committed is simply a delict. The Law requires that A ought to be punished, failure to punish A
would be a breach of Law.

Thus, Law is Mechanism which allows the State/Officials to apply Sanctions when certain
circumstances arise.
Laws/Norms imposes duty on the officials or confer powers upon them to impose sanctions.

Validity of Legal Norm.

A Norm is a meaningful substance and can only be given birth by another meaningful substance
i.e. another Norm. Thus a Legal Norm will get its birth from another Legal Norm and so on and
so forth. The validity can be traced back to the historically first constitution.
However, the Existence of the Historically First Constitution is a matter of fact and it cannot give
birth to meaningful Norms thus Kelsen says that the Norm is ‘one ought to follow the
constitution’.
This Norm is what he calls a Grundnorm or the basic Norm. The validity and effectiveness of the
Grundnorm cannot be verified or substantiated by any other Norm, he says that a Grundnorm is
a Legal fiction and will be presupposed in a Legal System. Failure to presuppose the Grundnorm
will break the Legal System.

Comparison of Kelsen:

With John Austin: Kelsen and Austin both rely on Sanction to explain Law. However, Kelsen
differentiated between being Obliged and under an Obligation. Kelsen’s Norm creates an
obligation on the State officials to apply Sanctions. His Theory never says that Law makes the
individual obliged by it.

Austin relied on Habitual Obedience to explain the Concept of Sovereignty (which gives birth to
the Legal System) whereas Kelsen relies on Grundnorm for Legal validity.

For Austin an effective Legal System will be a valid Legal System - Effectiveness is Tantamount
(equal) to validity, whereas, for Kelsen validity and effectiveness of a Legal System are two
separate things.

With HLA Hart: Hart’s concepts of Law rely on the Social Acceptance of a Rule for its existence.
In that sense, Hart’s explanation of Rule is not Free/Pure of any social Influences. Whereas,
Kelsen’s theory does not rely on Rules but rather on Norms to define Law.

Hart’s concept of Law defines the Legal System with respect to the Rule of Recognition of that
System. For Hart Ultimate Rule of Recognition (UROR’s) Bulk of the officials. For Kelsen the
Normative force for UROR is given by the Grundnorm.

However, the pre-supposition of Grundnorm has to be done by the officials. At the end the
difference between pre-supposition and acceptance is only Semantic (Linguistic).
LEGAL REVOLUTION.

A Legal Revolution would occur only where the Grundnorm of a Legal System is changed i.e. the
Officials start Pre-supposing a new Grundnorm. In absence of any now Grundnorm, any now
regime, may be effective when not being a valid regime.

An effective Regime/Legal System is one where Laws are being followed. However, it may not
Necessarily be valid as well. In order for it to be valid the regime must be in accordance with
the Grundnorm.

The classic Illustration of Kelsen’s Legal revolution can be seen from the Unilateral Declaration
of Independence of Rhodesia (Zimbabwe). The Rhodesian people issued a UDI claiming
Independence from British Colonial Rule. The UDI created an effective regime as the freedom
fighters were able to establish their writ (control) on the people.

However, the UDI regime was not a valid regime as it was not in accordance with the ground
Norm. In the case of (Madzimbamuto v Lardner-Burke), the Privy Council had to decide
whether the marriages and contract (Civil actions) were Legally valid or not during the UDI.
Courts held that since regime was unlawful, all actions including civil action will be unlawful.
However, the court retrospectively granted validity on civil action due to the doctrine of
necessity.

Another situation where courts applied Kelsen’s theory of Legal validity is the Pakistani case of
(State v. Dosso), in this case (Justice Munir), incorrectly applied Kelsen’s theory by stating that
a Legal System will be valid if the same in effective. A System introduced by revolution which
becomes effective will be a valid System even though the same was not in accordance with the
ground Norm or the historically first constitution.

For Kelsen, a System is a only valid if the same is in accordance with the Grundnorm. A valid and
Legal revolution, which changes the System will only occur where the Grundnorm is changed. A
Grundnorm is changed the bulk of officials start pre-supposing the new Grundnorm. Thus, a
revolution which is recognized by officials/court maybe effective but will not be valid.
Analysis on Kelsen.

The concept that Grundnorm is to be Pre-supposed by the Bulk of the officials connect Law with
Cohersion/Power. The bulk of officials have the power to determine the validity of Legal
System, e.g. In Pakistan 1999 a Provisional Constitutional Order (PCO) was introduced which
wasn’t in accordance with earlier constitution. This PCO came as a result of ‘Military Coup
D’etat’. The PCO will only be valid if it is accepted by the bulk of the officials. The existing
members if the superior judiciary refused to allege their oath under the new PCO.
Hence, PCO was not valid. However, the PCO became valid as new officials/judiciary were
appointed who attached the Grundnorm with the new PCO. This shows that power will grant
validity to the System if power is enough to coerce the bulk of the officials.

When the PCO came to an end the original officials regained their position and declared the

PCO as unLawful. Hence, another Legal revolution occurred when PCO was removed. Criticism

of Kelsen.

1. Unity of Civil and Criminal Law. Unity of Civil and Criminal Law for Kelsen all Law’s are
directed towards officials and require sanctions to be imposed in case of breach. This blur’s
the distinction between civil Law, (where there are no specific sanctions) and Criminal Law
(where there are sanction).

2. Laws are Directed towards Officials. If Law’s are directed towards officials then there will
be no breach of Law if punishment is given on commission of delict, e.g. there is no breach
of Law if the State official i.e. police gives a parking ticket to the person who parks
incorrectly on a regular basis. The main aim of this Law was to avoid wrong parking which
it’s not able to achieve.