Pure Theory of Law or Normative Theory of Law.

Introduction:

Pure theory of law was given by Hans Kelsen. A legal theory in most cases takes inspiration from
existing local legal system. It analyses and seeks to give basis to such legal system and tries present
solution to the problems. The national and international conditions after the war gave the basis to
this approach. Pure theory rejects the idea of Natural Law theories. Kelsen’s theory was a reaction to
modern schools which have widened the boundaries of jurisprudence. The idea of grundnorm is a
founding stone of pure theory of law as many of the countries came up with their constitution at that
point of time. Kelsen’s pure theory was close to the Austin’s positivist theory because both are
positivist. In one aspect it is close to Realist as it too wants to remove all illusions and distractions
from law.

The main point of Kelsen’s theory was to free “ the law from metaphysical mist with which it has
been covered at all time by the speculations on justice or by doctrine of “jus naturalie”. Therefore his
theory is called “Pure Theory of Law.” According to Kelsen’s theory “The law will stand on its own.”
The concept is that the law would be pure from any other investigation such as sociological, political,
historical, logical etc. The pure theory law separates the concept of legal norm completely from that
of the moral norm and establishes

Necessity:

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 order symmetry in the legal system.
So the source of law can be traced.

Kelsen’s Pure theory of Law:

Law is a normative science: According to Kelsen law is a normative science. But law norms may
be distinguished from science norms. Pure theory of law to identify the very essence of law the
one thing that makes something law. Kelsen interpreted law differently not like the command to
the people as per Austin but as direction to the officials. The existence of legal norm in respect of
which the act is carried out makes the act legal. Validity of every norm is based on another nor, it
is an ascending hierarchy. Above all norms is Grundnorm (Fundamental Norm). Harris says The
Grundnorm is the hypothesis which closes up the arch of legal logic. Any discussion about the
nature and origin of the Grundnorm is not within the province of Pure Theory of Law. Law norms
have a distinctive feature. They may be distinguished from science norms on the ground that
norms of science. Law norms are Ought norms, law does not attempt to what actually occurs but
describes certain rules. It says if one breaks the law then he ought to be punished.

Essential foundations of Kelsen’s Theory:

To summarize the essential fou ndations of Kelsen’s system have been enumerated as follows:

1. The aim of a theory of law, as of any science is to reduce chaos and multiplicity to unity.
2. Legal theory is science not violation. It is knowledge of what the law is not of what 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 with the effectiveness of legal norms.
5. A theory of law is formal, a theory of way of ordering changing contents in a specific way.
 6. The relation of legal theory to a particular system of positive law is that of possible to actual
law.

Impact of Kelsen’s 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.

1. Law and state not two different things.

2. No difference between public and private law
3. No difference between natural and juristic person
4. No individual rights
5. Supremacy of International Law

Criticism:

His 'Grundnorm' vague and confusing.

The first point in 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 'Volkgeist' and not in any other source, such as
'Grundnorm'. But on this point Kelsen finds in Prof. Friedmann and Stone very strong advocates of his
view. Friedmann says, "The fact that the ultimate authority in any given legal order may be a
composite one, as in the United States of America, or Great Britain, does not alter the fact that such
an ultimate authority must exist." So far as the criticism by the jurists of the Historical School is
concerned, Kelsen is decidedly a positivist and therefore, this criticism does not hold good against
him.

The purity of norms cannot be maintained.-

Kelsen is criticised, again, for his reason. First, for a proper analysis of legal norms one will have to go
to the 'Grundnorm'. In tracing the 'Grundnorm' by applying the test laid down by Kelsen
himself-"minimum effectiveness"-one will have to look into political and social facts. It will cause
adulteration 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, the theory excludes a very important
part from the study of law.

No practical significance. –
Sociological jurists criticize 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 if we recognize the fact that the purity of legal norms cannot
be maintained, the theory is not materially affected. Kelsen develops his theory from the
philosophical premises of Kant and aims at establishing a universal theory of law. Therefore, it was
not necessary for him to take into consideration other factors which affects or influence law. It may
be a limitation of the theory but it is not a weakness or defect of it. The criticism by sociologists that
the theory lacks practical significance is out of point. It is clear that Kelsen wanted to make his study
a science and took a strict positivist view. He purged many fallacies, such as 'natural law', or 'justice'
and in this way his work carries a lot of practical value.

"Natural law' ignored.

Some criticize Kelsen's theory for its excluding 'natural law from law. Natural law' considerably affects
legal concepts and operates in the society, and is incorporated in positive law also. But, as said
earlier, Kelsen presents a very scientific analysis of legal order, therefore, he could not take these
extra legal norms into consideration. It does not mean that he denies the existence of a 'natural law'.
If 'natural law is incorporated in the positive law, it stands in the hierarchy of norms and is validly
within the field of study.

Moreover, Kelsen's exposition by his theory itself allows scope for natural law. Lauterpacht, a
follower of Kelsen, has questioned whether the theory of hierarchy of legal norms does not imply a
recognition of natural law principles, despite Kelsen's violent attacks upon natural law ideology.
Another critic of Kelsen, Hagerstorm has uncovered the natural law ideology hidden in Kelsen's
assumption of the unconditional authority of the supreme power or in Verdross' "Constitution of the
law of Nations" as the formulation on which the basic principle of international law is supposed to
rest.

International law-Weakest point of the theory.

A more potent and substantial criticism is put forward against Kelsen's view of International law.
Kelsen in his attempt to apply his theory on International law runs into a number of inconsistencies
and artificiality of the approach is exposed. His comparison of international law with primitive law is
artificiality and no juristic conclusions can be based upon it. He attempts to prove the existence of
'Grundnorm' in International law also.

He says that one legal system, in practice, recognizes the equality of other legal systems and it
implies the recognition of a 'Grundnorm'. This equality is not possible without the 'Grundnorm' in
the principle 'pacta sunt servanda'. On the question whether this 'Grundnorm' comes into existence
on the formation of an association of states or states derive their validity and force from the
'Grundnorm', Kelsen leaves both the possibilities open as it is not within the province of the Pure
Theory' to investigate into it, but his line of approach seems to be favoring the latter view.

In his zeal for establishing the primacy of International law, Kelsen goes on the point of 'Grundnorm'
his arguments explode and he is thrown on the forwarding arguments, but on the horns of a
dilemma uses Stones temarks in "It is difficult to see what pure horny of law contributes to a satin
which it assumes to be law, at pure it derives from hic are want find. Secondly, Kelse which ihat
sanctions of International law are war and reprisato The proposition is still more strange : Nobody
would agree to the proposition that was not comprised are a sanction in the legal sense international
law has not completely out favored war as an instrument of national policy, density th binding time,
International organizations ment of tribunal to decide a effect whether the action (war) of a state is
under the sanction or is otherwise. In recent years a number of wars hate taken place not as
sanctions but in utter violation of the International law. All that one feels after going through Kelsen's
view about International law. is that he strongly pleads for a stable and authoritative International
order and why should he not after witnessing so much of death, destruction, misery and oppression
in the World Wars?

The whole difficulty is that the International law does not fit in his Pure Theory and it should be
taken as a limitation of the theory. His arguments are based on 'Natural law' principles on which Prof.
Lauterpacht observes that 'by a backdoor, as it were, crept into the case iron logic of the system, the
ghost of natural law.'

In present times, a greater appreciation and understanding of Kelsen's theory has appeared. The
great jurists like Stone and Friedmann have very stoutly defended Kelsen's theory. The 'Pure Theory'
is mainly concerned with a theoretical analysis of legal norms within a state and there it is very easily
applicable. The application of the theory on International law (as the founder of the theory claims it
to be of universal application)exposes the limitations of the theory or a casual leakage in it. In his
effort to establish the primacy of International law, Kelsen applies the theory on it also, but it gives
only ridiculous results. He represents a picture of International law as what it ought to be and not
what it is.