ANALYTICAL SCHOOL

OF JURISPRUDENCE

The relevance of Kelsen’s

hierarchy of norms in
understanding the concept of
law.
BY GUKIINA PATRICK M.
LAWYER, WRITER, AUTHOR
AND RESEARCHER.
Hans Kelsen a professor of law1 and legal positivist2 began his long career as a legal
theorist at the beginning of the 20th century wherein he introduced the “pure theory of
law”. It is called “pure3” because it is based on the principle that law must be free
from all social sciences viz., ethics, history, politics, sociology, economics et al. In other
words, it must be in pure form and completely divorced from other social sciences. 4 To
further buttress this point, according to Kelsen, a theory of law should be uniform and
applicable at all times and in all places and this can only be achieved when it is devoid of
politics, sociology or other impuritants.

Kelsen also defined law as normative science and not a natural science. In this
sense, Kelsen’s concept can be deduced to refer to a concept of norms and most
importantly according to Kelsen, Knowledge of the law is a knowledge of “norms’

To further buttress the above point, Kelsen’s theory is based on the pyramid structure of
the hierarchy of norms5 which derives its validity from the basic norm which is known as
the Grundnorm. In other words, Kelsen described an entire process whereby each norm
derives its power from a norm above it until it reaches the grand norm and he referred
to this process as the “concretization of the legal system”

This superior norm “Grund norm” must have control over the norms subordinate to
them. For e.g.: a statute or law is valid because it derives its legal authority from the
legislative body, and the legislative body derives its authority from the norm i.e., the
Constitution. In Uganda, the applicability of this is that any law not originating from the
constitution in Uganda is invalid and can be challenged in the constitutional court.

Kelsen also held the view that every legal system/system of norms rests on some
type of sanctions6. To Kelsen, the purpose of the legal system is to induce human beings
to behave in the desired way, using the threat of sanction or coercion and obviously

1
Edwin W. P, “Hans Kelsen and His Pure Theory of Law” (1952) 40 California Law Review, Inc. 1 pp
2
Edgar Bodenheimer, “Jurisprudence – The Philosophy and Method of the Law.”, (1962)Harvard University
Press; London: Oxford University Press
3
Kelsen H, “On the Pure Theory of Law” (1966) 1 Israel Law Review 1
4
1960/1967. Pure Theory of Law, M. Knight (trans.), Berkeley: University of California Press.
5
Kelsen H, “On The Pure Theory of Law”, 1966
6
Supra.
1
so, Threats of sanction command obedience to the law. The relevance of this is that a
legal norm is addressed to the Judge and instructs him / her to impose a sanction
(Whether criminal or civil) whenever a violation has been committed. In Uganda legal
sanctions come inform of damages, compensation, incarceration, fines for breach or
violation of legal orders and these are issued by judges in competent courts of law after
due process

Kelsen also propounded a theory pursuant to effectiveness and validity of norms

(Laws). Effectiveness means a norm is applied by legal organ and obeyed by subjects
whereas Validity means in addition to application and obedience, the norm ought to be
obeyed and is enforceable. According to kelsen, A legal order as a whole does not lose
validity because a single norm losses effectiveness. To Kelsen, a norm is valid if it ought
to be obeyed, and it ought to be obeyed if it was created as prescribed by the
presupposed basic norm (Grundnorm). According to Kelsen, a law which is not practical
and not observed, losses its validity and Kelsen argues that once the grand norm seizes
to deliver or command a minimum of support for instance if it is overthrown, it seizes to
be operative as a basis of legal order and any other laws which gain support will
replace it and this principle is what came to be known as a “Revolution in Law.”

The doctrine of the “revolution law7” is perhaps Kelsen’s most important

preponements. It is applicable where there’s an illegal change to legal order and the
change is successful and this mode of change must not be contemplated by the
Constitution and the new Legal Order it creates must be effective and acceptable by
the people in other words, there is a distortion of the existing constitution and the
invalidation of the legal order. This was evident in Uganda in 1971 when Idi Amin over
threw Milton Obote’s government and he suspended the constitution and ruled by decrees
which was equivalent to the “revolution law “hypothesized by Kelsen.

It must be noted that he doctrine of Revolution in law has been used to legitimize
violent and unconstitutional regime changes in a number of countries and it was
first applied in locus classicus Pakistan case of State v Dosso8 and another PLD 15.

7
Omony.J, „‟Key issues in Jurisprudence: An in Depth Discourse on Jurisprudence Problem
8
State v Dosso and another PLD 15
2
This was the first constitutional case after the promulgation of Constitution of Pakistan of
1956 and it gained prominence as it indirectly questioned the first martial law imposed

by the new government.

In addition, Kelsen’s pure theory of law was also applied in the case of Mustafa
Ibrahim9 where court deviated from the constitution and upheld a new legal order on
grounds that there was need to avoid a vacuum of law that would result from a refusal
to give validity to the acts of the new government. It held that necessity renders validity
applicable to what would otherwise be illegal

In Uganda, the presumptions of Kelsen’s pure theory of law were first tested in the case
of Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu a decision of the
High Court of Uganda in which Hans Kelsen's " Pure Theory of Law and State" was
considered in determining the legal validity of Uganda's 1966 Constitution

According to Kelsen, the Grundnorm may not be the same in every legal system but it
is always there, either in the form of a written Constitution or the will of the
superior. In this, he meant that the Grundnorm is no longer a hypothesis but a fiction
of law and that we cannot say whether Grundnorm is good or bad without testing it
politically, religiously, and ethnically.

Kelsen is also remembered for the doctrine of “normative alternatives” whereby the
law equally authorizes perfectly legal as well as materially illegal acts of state, as long as
they are performed by formally competent organs. However, proponents have averred
that it does not undercut the ideal of the rule of law.

However, legal scholars have given the Merits of the Pure Theory of Law which include
the fact that Kelson recognized International Law as a law, the fact that the Pure theory
of law is best for peaceful change which aspect makes it the most refined development
of analytical positivism, the fact that Kelson explained that no law can prevail in a
country over the grundnorm or constitution made the kelsen Theory of Law to be
considered the most outstanding theory of law. Nevertheless, it has not been devoid of

9
(1964) CLR 227
3
criticism as some scholars suggest that the law cannot be devoid of ethics and morality
as the two are interrelated and influence each other i.e that the purity of norms cannot
be maintained, other scholars also criticize the Kelsen theory for failing to distinguish
between Private and Public law, failing to differentiate between natural and juristic
persons,

CONCLUSION.

In light of the foregoing, it’s my humble submission that Hans Kelsen’s jurisprudential
work centered on the normative nature of law and his approach assumes that there
is a sharp division between “ought” statements and “is” statements i.e that legal theory
is a science, not a volition as it deals with “what the law is” and not “what the law ought
to be.” Kelsen’s theory is also based on the idea of a hierarchy of norms, where each
law follows a higher one not forgetting the very imperative and fundamentally
recognizable and acceptable principle of a “revolution in law”. It can also be deduced
from the kelsen’s principles that the aim of the theory was to reduce chaos and
multiplicity to unity. In other words, Kelsen gave the legal theory a new dimension by
forcing us to consider the distinction, as well as the relationship, between fact and norm,
between legislation and its normative impact and his contribution to jurisprudence can
never be under-estimated as it has been practically applied internationally. Little wonder
that in the year 1934, Rosco Pound lauded Kelsen as “undoubtedly the leading jurist
of the time.

4
 Bibliography
➢ Primary Sources
1. 1934/2002. Introduction to the Problems of Legal Theory, B.L. Paulson and

S.L. Paulson (trans.), Oxford: Clarendon Press .

2. 1960/1967. Pure Theory of Law, M. Knight (trans.), Berkeley: University of

California Press.

3. 1945/1961. General Theory of Law and State, A. Wedberg (trans.), New York:

Russell & Russell.

4. Kelsen H, “On the Pure Theory of Law” (1966) 1 Israel Law Review 1

5. Professor Stone and the Pure Theory of Law: A Reply’, Stanford Law Rev, 17(6):

1128–1157.

➢ Secondary Sources

1. Harris, J.W., 1980, Legal Philosophies (Chapter 6), London: Butterworths

2. Hart, H.L.A., 1961, The Concept of Law (Chapter 3), Oxford: Clarendon Press.

3. ‘Kelsen’s Theory of the Basic Norm’, in J. Raz, The Authority of Law, Oxford:

Oxford University Press, pp. 122–145.

4. A ‘Justified Normativity’ Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders

to Robert Alexy and Joseph Raz”, in Matthias Klatt (ed.), Institutionalized

Reason: The Jurisprudence of Robert Alexy, Oxford: Oxford University Press, pp.

61–111.