DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

ACADEMIC SESSION 2021-22

TOPIC:- KELSEN’S PURE THEORY OF

LAW

SUBMITTED TO:- SUBMITTED BY:-

Dr. SHAKUNTLA SANGAM ISHAN RAI

Associate Professor (Jurisprudence) 190101070
SECTION A
V SEMESTER
B.A.L.L.B(Hons.)

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 TABLE OF CONTENTS

I. ACKNOWLEDGEMENT

II. HANS KELSEN

III. BASIC POSTULATES OF KELSEN’S PURE THEORY

IV. DIFFERENCE WITH AUSTIN’S THEORY OF LAW

V. IMPLICATIONS OF KELSEN’S PURE THEORY

VI. IMPLICATIONS OF KELSEN’S PURE THEORY IN INDIA

VII. CRITICISMS OF KELSEN’S PURE THEORY

VIII. BIBLIOGRAPHY

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 I. ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher for the subject Dr.
SHAKUNTLA SANGAM for giving me such a challenging topic and also for her
exemplary guidance, monitoring and constant encouragement throughout the
course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in

the college for their cordial support, valuable information and guidance, which
helped me in completing this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely
and valuable information provided by them in their respective fields. I am
grateful for their cooperation during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant

encouragement without which this assignment would not have been possible.

ISHAN RAI
190101070

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 II. HANS KELSEN

The pure theory of law which is also known as the Vienna School of legal thought
was propounded by Hans Kelsen (1881 1973). Kelsen was born at Prague in Austria
in 1881 and was a Professor of law at the Vienna University.1 He was also the judge
of the supreme constitutional court of Austria for ten years during 1920-1930.
Thereafter, he shifted to England. He came to United States and worked as professor
of law in several American universities and authored many books. He was emeritus
Professor of Political science in the California University when expounded his Pure
theory of law which is considered to be Kelsen's unique contribution to legal theory.2

Kelsen's pure theory of law is akin to that of Austin's theory of law although Kelsen,
when he began to develop his theory was quite unaware of Austin's work. He
nevertheless recognised the essential identity of his own objectives with Austin's,
namely, to base a theory of law on a positive legal order or on a comparison of the
contents of several legal orders and thus by confining jurisprudence to a structural
analysis of positive law to separate legal science from philosophy of justice and
sociology of law. He wished to free the law from the metaphysical mist with which it
has been covered all times by the speculations on justice or by the doctrine of "jus
naturale". In this sense Kelsen's theory is called the pure theory of law.

It is called a pure theory of law, also because it only describes the law and attempts to
eliminate from the object of this description everything that is not strictly law, like
ethics, politics, history, sociology, etc. Thus, it is tree from all evaluative criteria like
morals, psychological elements (e.g.fear), etc. The lawness of a norm is not dependent
upon meta lagal facts but upon its own specificity and relation to the legal order itself.
The test of lawness is to be found within the system of legal norms itself. It has
nothing to do either with social facts or with high principles of justice.

III. BASIC POSTULATES OF KELSEN'S THEORY

1
Hans Kelsen, available at: https://www.britannica.com/biography/Hans-Kelsen (last visited on
September 11, 2021).
2
Ibid.

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1. Kelsen defines law as an order of human behaviour. The specific nature of this
order consists of:-3
(a) in its being coercive
(b) in the fact that this coercive power is derived solely from the sanctions attached to
the law itself.

2. The law is a normative not a natural science.

3. The legal system is a system not of what it actually is (reality), it is a system of

what ought to be. A norm is not a statement about reality and therefore is incapable of
being true or false. It can only be valid or non-valid.

4. The 'binding force' of the legal order should be sought not in the motivation or
behaviour-pattern of the people whose behaviour the order regulates, but in the
sanction that is necessarily attached to every legal rule.

5. The efficacy of a legal order is ascertained by whether the coercive elements in law
make people obey.

6. The essence of the legal norm is not its efficacy but its validity. If a norm is valid in
the sense that it has been created in accordance with the constitutional provisions and
has a sanction attached to it then, even if it is not being enforced, it does not, for that
matter cease to be a valid legal norm.

7. According to Kelsen, a legal order is comprised of norms placed in a hierarchical

manner, one norm placed above another norm and every norm deriving its validity
from the norm above it.4 The hierarchy takes a pyramid shape and symbolizes the
legal order. In this way there comes a final stage of highest norm which serve basis
for all infertile norms, that is known as the basic norm or Grund Norm. The Grund
norm is the basic point of the philosophy of Kelsen. The legality or validity of all the

3
V.D Mahajan, Jurisprudence and Legal Theory 543 (Eastern Book Company, Lucknow, 5th edn.,
2019).
4
Rakesh Kumar, “Structural Analysis of the Indian Legal System through the Normative Theory” 41
Journal of Indian Law Institute 501 (1999).

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norms can be tested against the Grund norm. The validity of Grund norm can't be
objectively tested. The Grund norm is the common source for the validity to the
positive legal order or all norms that belong to the legal order. The Grundnorm must
be efficacious it must be obeyed by the people at large. Efficacy is the validity of the
Grundnorm5.

Basic Norm (Grundnorm)

Enabling Act (Tertiary Norm)

By Law (Secondary Norm)

Special Official Action Particular (Primary Norm)

8. The relation between legal coercion and the use of force is analysed by Kelsen to
and the use of force is prove that there is no antimony involved here. has been usually
argued that while the law seeks to prevent the use of force to settle differences, the
law accomplishes this by the threat and, ultimately, the actual use of force. According
to Kelsen, there is no antimony because the sanction of force behind the law was legal
force as it could be used only strictly in accordance with certain stipulated conditions
by specified persons; the law-enforcing organs must and do have the monopoly of the
use of force.

9. According to Kelsen, a dynamic system is one in which fresh norms are constantly
being created on the authority of an original or basic norm. A static system is one
which is at rest. He calls Austin's theory static because Austin's analytical
jurisprudence regards law as a system of rules complete and ready for application
without paying any attention to the process of their creation.6

10. 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 superme or

5
Supra note 3 at 545.
6
Supra note 3 at 547.

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superior person as sovereign.7 In the same way the 'State' is but a simple way of
conceiving the unity of legal order and is only a synonym for the legal order itself.

IV. DIFFERENCE WITH AUSTIN’S THEORY OF LAW

Kelsen's pure theory of law owes to Austin's theory However, the two differ in many
respects:

1. For Austin law is a command of the sovereign but for Kelsen, law is not the
command of a personal sovereign but a hypothetical judgement, which comes with a
sanction for the non-observance of the conduct prescribed. Kelsen denies also the
existence of State as an entity distinct from law.

2. In the Austinian sense, a sanction has to have a moral or psychological basis, the
motivation by fear makes people to submit to law. Kelsen rejected the idea of
command, because it introduces a psychological element into a theory of law which
should, in his view be pure in the Kelsenian sense. coercive act means forcible
deprivation of liberty. There is no idea of fear involved, because the norms prescribe

3. Although sanction is an essential element of his law, validity of a rule has nothing
to do with its sanction. In the Austinian sense, the sanction was something outside a
law imparting validity to it. While, according to Kelsen, a sanction is in-built in every
legal norm.

4. Austin's theory denies to custom the character of law as has not been created by the
sovereign. Kelsen, however, is able to accommodate custom within his concept of law
by his popular practice may generate legal norms.

5. Austin didn't regarded international law as a positive law. Kelsen, on the other hand
accepted the primacy of international law over national law.

V. IMPLICATIONS OF THE KELSEN'S THEORY

7
The Pure Theory of Law, available at: https://plato.stanford.edu/entries/lawphil-theory/ (last visited
on September 14, 2021).

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1. LAW AND STATE NOT TWO DIFFERENT THINGS
The most significant feature of Kelsen's doctrine is that both the law and state are
identical for him the state is nothing but a system of human behaviour, an order or a
social compulsion.8 This compulsive order is different from the legal order, for the
reason that within one community only one and not two compulsive orders can be
valid at the same time. It is therefore redundant to distinguish between law and state,
because every act of state is a legal act. Any human act is only designated act of the
state by virtue of a legal norm which qualifies it as such. On the basis of the norm the
act is imputed to the state, is related to the unity of legal order. The state as person is
simply the personification of the law. Kelsen, thus, rejects any dualism by saying that
dualism of state and law.

2. NO DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW

Another very significant feature that comes out of the hierarchal structure of law is
Kelsen's attack upon the traditional distinction between public and private law.
According to Kelsen, there is no difference between public and private law when all
law derives s force from the same Grund norm.9 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 law and justice authoritarianism, whereas in reality private
law institutions consist of a political ideology as strongly as public law institutions
and relations.

3. NO DIFFERENCE BETWEEN NATURAL AND JURISTIC PERSON

Kelsen does not admit any legal distinction between physical and juristic person since
state is nothing but a legal construction. As law is a system of normative relations and
uses personifications merely as a technical device to constitute points of unification of
legal norms, so the distinction between natural and juristic persons is irrelevant, while
all legal personality is artificial and deduces its validity from superior norm.

4. NO INDIVIDUAL RIGHTS
8
G.C Venkata Subbarao, “Jurisprudence and Legal Theory” 255 (Eastern Book Company, Lucknow,
9th edn., 2019).
9
Supra note 8 at 260.

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As law is a system of norm relations, so Kelsen and his followers recognise no
individual right, except as a technical device which the law may or may not recognise
in order to carry out legal transactions. Legal duties are the essence of law, for law is
a system of oughts, whereas legal rights are by an incident. This necessarily severs
law from any associations with political theory of law, for example from those which
affirm certain inalienable rights of the individual.

VI. IMPLICATIONS OF KELSEN'S PURE THEORY OF LAW IN INDIA

1. India has adopted parliamentary democracy as its form of government and political
organisation. Kelsen's theory of the State is hardly in consonance with this. According
to Kelsen, there is no dualism between the state and law. By identifying the law and
the jurisprudence state, there would be little room for the law, without which no
democracy can be worth the name.

2. India is a welfare State based on humanist and rationalist philosophy. The pure
theory of law will come in implicit clear conflict with the ideology of a welfare state
since theoretically it outlaws values and ideals and tries to be scientific, quite
independently of all rationalisms.

3. In a socialist society with a welfare state such as India is thriving to achieve, law
and morals complement each other. In the emerging Indian society while a great and
increasingly varied types of social functions are being delegated to the legal system
on the one hand, it is at the same time expected that people will not be legalistic and
that moral and social constraints will play an equally great role in social regulation.
This will also mean that the legal system may itself be required to contain legal norms
which have no coercive sanction attached to them.

4. The pure theory has a certain fundamental tendency which is anti-democratic in

spirit and effect. For the emerging Indian society which aspires to be firmly
democratic, this is hardly conducive. A planned, socialist democratic society has to
have a strong moral orientation and a firm commitment to certain values, which the
pure theory of law cannot provide.

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5. Grundnorm in Indian legal order is the Constitution which is the basic norm that
validates the Indian legal order. However, it is not the Constitution itself but the
presupposition that Constitution ought to be obeyed that is the grundnorm.10 It is for
the judiciary in India to determine the criterion of grundnorm, and to decide the
validity and efficacy of legal order. The constitutionality of a legislation or executive
action is determined by the courts. The courts do so with reference to the Constitution,
but the courts at times evolve new doctrines and principles whose validity is not
traceable to the grundnorm. Thus, we see that in Indian Constitution the grundnorms
are made up of many elements and any one of these elements alone cannot have the
title of grundnorm. Kelsen's pure theory fails here also.

VII. CRITICISMS AGAINST KELSEN'S THEORY

1. NO PRACTICAL SIGNIFICANCE

Although Kelsen's theory has warmly been recognised, yet most writers point out that
it provides no guidance whatever to a person in the actual application of the law.
Sociological jurists criticize it on the ground that it lacks practical significance.
Professor 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 luminous wings in vain within his ivory tower."

2. PURITY OF NORMS CANNOT BE MAINTAINED

The quality of purity claimed by Professor Kelsen for all dependent on the basic norm
had always been subject of serious attack. In the most enchanting language of Jullius
stone: "....Since that basic norm itself is obviously most impure, the very purity of the
subsequent operations must reproduce that original impurity in the inferior norms, we
are invited to forget the illegitimacy of the ancestor in admiration of the pure blue-
blood of the progeny. Yet the genes are at work down to the lowliest progeny."

As absolute purity of any theory of law is a far cry, so Kelsen had to admit his defeat

10
Pure Theory of Law, available at: https://indianlawportal.co.in/pure-theory-of-law/ (last visited on
September 12, 2021).

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when it comes to the question of conflicting fundamental norms. The question which
is the valid fundamental norm, his pure theory cannot avoid, for without it the whole
structure would collapse.

3. HIS GRUNDNORM VAGUE AND CONFUSING

The point on which Kelsen's theory which is greatly criticised is his conception of
Grundnorm. Though Kelsen has given its characteristics 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 title of
Grundnorm. Another criticism against the conception of Grundnorm is from the point
of view of the Historical school. It says that the origin of law is in customs and
Volkgiest and not in any other source such as Grundnorm.

4. NATURAL LAW IGNORED

Lauterpacht, an ardent follower of Kelsen, has also from a different side questioned if
the theory of hierarchy of legal norms does not imply a recognition of natural law
principles, despite Kelsen's blatant warning of natural law ideology. Many natural law
theories do not establish absolute ideals but affirm the principle of higher norm
superior to the positive law as mankind becomes legally organised, natural law rules
would become positive norms of a higher order, and the difference between Kelsen's
theory and those modern law theories would disappear. Allan another jurist points out
that real sources of law are custom, statute and precedent none of which have a
aupremacy over the other and Kelsen ignores all these are sources of law.

VIII. BIBLIOGRAPHY

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