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Assignment of
DESCRIBE THE LAW OF JURISPRUDENCE
UNDER THE THEORY OF HANS KELSEN
AND H.L.A HART

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Jurisprudence is a name given to a certain type of investigation into law, an investigation of an abstract,
general and theoretical nature which seeks to lay bare the essential principles of law and legal systems.

Definition:
Dean Roscoe Pound defines jurisprudence as "the science of law, using the term law in the juridical sense,
as denoting the body of principles recognised or enforced by public and regular tribunals in the
administration of justice".
Bentham is known as Father of Jurisprudence. Austin took his work further. Bentham was the first one
to analyze what is law.
According to Salmond jurisprudence is the ‘Science of the first principles of the civil law’.
According to Austin jurisprudence is the ‘Philosophy of positive lawetc..

Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law means
Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of legislature. Law means
Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges.
Jurisprudence analyzes legal concepts. It also tries to find out the essential principles of law. It not only
analyzes the rules which are already known but it also analyzes and sets the foundation of new rules. It is a
result of the thinking of Jurists and philosophers.

Hans Kelsen Theory

Law is a ‘normative science,’ according to Kelsen, yet legal norms can be separated from scientific norms.
‘Science,’ according to Kelsen, is a form of knowledge organised around logical principles. A norm,
according to Kelsen, is a rule that prescribes a specific behaviour. He makes a distinction between legal and
moral rules. He said that a moral standard just states “what a person should do or not do,” but a legal norm
state that if a person violates the norm, he would be penalized by the state. Law is distinguished from
politics, sociology, philosophy, and all other non-legal sciences, according to him. According to Kelsen, an
appropriate theory of law must be pure, that is, logically self-contained and therefore not reliant on extra-
legal values, natural law, or any other external source (such as the sociological, political, economic, or
historical influence of law).

Grundnorm :-
Kelsen’s pure theory of law features a pyramidal hierarchy based on the grundnorm as the foundational
norm. Grundnorm is a German term that means “fundamental norm.” He defines it as “the assumed ultimate
rule by which the norms of this order are constituted and annulled, and their validity is received or lost.”
The grundnorm establishes the content and verifies additional norms that are derived from it. But whence

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it gets its legitimacy was a question Kelsen refused to address, claiming it to be a metaphysical one. Kelsen
suggested Grundnorm is a work of fiction and not a hypothesis.
According to Kelsen, unlike some of the other norms, the basic norm cannot be explained by referring to
certain other or more validating laws. Instead, it may draw its legitimacy from the fact that it has been
recognised, acknowledged, and accepted by a significant number of people inside the political unit. As a
result, the law cannot be separated from the state’s organised structure and authority. Because this structure
is normative, the concept of sanctions, which plays a rather unique role in Austinian doctrine as the element
that makes law functional, depends on other forces such as prosecutors, officials, and judges to undertake
their aspects of the normative structure before sanctions are activated and inflicted.
The Grundnorm is the beginning point for a legal system, and it is from this point that a legal system grows
more complex and specialised as it evolves. This is a fluid situation. The grundnorm, which is self-
contained, is at the summit of the pyramid. In a hierarchical structure, subordinate standards are governed
by norms that are superior to them. The system of norms progresses from downwards to upwards and finally
closes at grundnorm.

Hierarchy of Norms:
A legal order, according to Kelsen, is made up of norms arranged in a hierarchical sequence, with one norm
positioned above another and each norm getting its validity from the norm above it. The legal order is
symbolised by the hierarchy, which takes the shape of a pyramid. As a result, the last level is the greatest
norm, known as the fundamental norm or Grund Norm, emerges, which serves as the foundation for all
future norms. The Grund norm is the cornerstone of Kelsen’s ideology. The Grund norm can be used to
determine the legality or validity of any norm. The Grund norm’s validity cannot be objectively assessed.
The Grund norm serves as a common reference point for the validity of the positive legal order, or all of
the legal system’s norms. The Grund norm must be effective, that is, it must be followed by the general
public. The validity of the Grund standard is referred to as efficacy.

Validity of Norms:
The term “validity” refers to the existence of a given standard. It also refers to the fact that a norm is legally
obligatory and that an individual must follow the norm’s instructions.

The following two postulates are stated by Kelsen:

Every two norms that derive their validity from the same fundamental standard are part of the same legal
system.
The legitimacy of all legal norms in a particular legal system is ultimately derived from one basic standard.
The validity of another norm is the only explanation for a norm’s validity. When a single norm ceases to
be effective, a legal order does not lose its validity, nor does a single norm lose its validity if it is just
ineffectual from time to time. Effectiveness is a criterion for validity, but it is not a criterion for validity.
The question of a norm’s validity comes before the question of its efficacy. A fact, i.e., a declaration that

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something is, cannot be used to determine why a standard is legitimate or why a person should behave in a
specific manner; the reason for the correctness of a norm cannot be a fact.
While the traceability of a norm to an existing basic norm which determines its validity, efficacy refers to
the norm’s effectiveness or enforcement. In other words, it examines if the rule is followed and whether
violations are punished. If the response is affirmative, then the standard is effective. It isn’t otherwise. As
a result, the principle of legitimacy is constrained by the principle of efficacy. Although inefficacy may not
have an immediate impact on the validity of a norm, it may do so in the long run. For example, the system
of norms may lack its validity if the overall legal order or the fundamental norm loses its efficacy.
In other words, they lose their validity not only when they are declared invalid by the Constitution, but also
when the entire order is rendered ineffective. Norms must be accepted by a large number of people. As a
result, validity entails higher-level legal approval and a minimum level of efficacy. ‘The legitimacy of every
single standard of the order is contingent on the efficacy of the entire legal order.’ Each standard in the
system depends on the validity of a higher norm.

Sanctions
Kelsen uses sanctions to emphasise the law’s coercive aspect. Because it brings a psychological aspect into
a theory of law, Kelsen rejects Austin’s interpretation of sanction, which views it as a mandate from the
Sovereign. As a result, he favours Grundnorm, which gives legislation legitimacy. Its authoritative character
lends credibility to any legal system. The Grundnorm’s sanctioning authority makes it applicable to all
other laws. According to Kelsen’s study of the sanctioned view of the law, legal norms are articulated in
the form that if a person does not follow a certain ban, the courts must impose a punishment, whether
criminal or civil.
Kelsen’s criticism of Natural Law:
Kelsen’s explanation of normativity is intertwined with his criticism of natural law theories, of which he
feels his is the only viable alternative. According to Kelsen, there is no explicit idea of legal validity in
natural law. Moral validity is the only idea of validity. Natural law theories, according to Kelsen, are
conceptually confused: one is secular, while the other is religious. Natural Law is logically binding and
self-evident, according to secular conceptions. According to religious views, these are divine instructions
that must be obeyed by humans. The fundamental principle of the secular theory is that nature must be
respected, whereas the fundamental principle of the religious theory is that God must be respected.
Another critique levelled towards Natural Law by Kelsen is that its theories are unscientific, and hence
cannot be objectively proven. Kelsen’s idea aims to isolate what makes a law legal without having to
consider morality. Kelsen establishes his theory by distinguishing between the “prescriptive” and
“descriptive” elements of positive law. Kelsen dives deep into this idea in search of a “prescriptive”
component, unlike Bentham and Austin, who tried to define how a legal system function.

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 H.L.A Hart’s Theory of Law:

The word ‘jurisprudence’ has been derived from a Latin word jurisprudentia which means ‘knowledge of
law’. ‘Juris’ means law and ‘prudentia’ means skill or knowledge. Thus, jurisprudence signifies knowledge
of law and its application. Jurisprudence is the study of fundamental legal principles. Different jurists have
given different definitions of the term jurisprudence as per follows: -

Professor Herbert Lionel Adolphus Hart (H.L.A.Hart) is an influential legal professor. Hart revolutionized
the methods of jurisprudence and the philosophy of law. He authored ‘The Concept of Law’ and made
major contributions to political philosophy. He is regarded as the leading contemporary representative of
British positivism. From his book it shows that he is a linguistic, philosopher, barrister and a jurist. To Hart,
law is system of rules. According to him: “Where there is law, the human conduct non-optional or
obligatory. Thus idea of obligation is at the core of a Rule. Rules of obligation are supported by great social
pressures because they are felt necessary to maintain the society. To Hart, concept of law is equivalent to
the legal system. Hart mentioned that rules of law fall into different logical categories that have distinct
legal and social functions. He distinguished primary rules from secondary rules or duty imposing rules from
power conferring rule. Primary rules are rules meant to guide the conduct of the individuals and other legal
persons and secondary rules are rules about how primary rules are to be created and recognized. The
example of duty imposing rules are rules of Income Tax Act, Wealth tax Act, etc. which requires that taxes
must be paid. The examples of power conferring rules are power to enter into a contract, make will etc.
These may be used or ignored.

Concept of “Rule”
Law can be analyzed in terms of rules which is largely based on Hart’s theory of law. According to him,
rules are concerned not with what happens but with what is to be done. Rules are imperative or prescriptive
rather than indicative or descriptive. Rules have a certain independence or self-legitimating character. Rules
are different from commands. Commands normally call for one unique performance whereas rules have a
general application and demands repeated activity. In some cases rules are constitutive and define the
activity in a question like rules of a game while in others they regulate activities which would take place in
any case whether the rules existed or not like rules of grammar, of morals and of law.[6]Rules of game,
club, and societies share the feature of rule of law in so far as these are of formal nature, are open to
amendment by bodies authorized for this purpose, and some sort of adjudicating process is also found when
there is any difficulty as to meaning or the application of these rules. As against these rules of morality or
law are not amenable to legislative alteration and are not resolvable by adjudication. Legal and moral rules
both are invitum. Obedience to them is non-optional. Rules of game and club apply only within limited
context, to players during the game. Law and morals are concerned with much broader aspects of life. Rules
of games are not compulsory; withdrawal and resignation are permanent possibilities. In case of morals,
there is no such choice and this is largely true of law also. Thus according to Hart, ‘Law consists of rules

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which are of broad application and non-optional character, but which are at the same time amenable to
formalization, legislation and adjudication.

Kinds Of Rules
Rules are of two kinds: -
✓ Primary Rules
✓ Secondary Rules

➢ Primary rules regulate the behavior of man in the society. These rules either grant rights or impose
obligations on the members of the society.
Example:- Rules of criminal law forbidding murder, robbery, rash driving are primary rules, tort rules, the
individual right to freedom of speech ,the provisions of contracts that define the primary obligations of the
parties, the environmental law rule that forbids discharge of toxic substances in rivers and streams etc.

➢ Secondary rules are those that stipulate how and by whom the primary rules may be formed,
recognized modified or extinguished.
Example: - Contract law rules that enable parties to form contracts, the rules that allow testators to create a
will, the constitutional rules that confer legislative powers on Congress, the statute that authorizes the
Supreme Court to promulgate rules of practice and procedure for the federal courts.

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what you are legally
obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the
criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the
prohibition. Technically, the class of secondary rules includes everything except primary rules. For
example, secondary rules are legal rules that allow for the creation, extinction, and alteration of secondary
rules; secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to
make contracts; contracts themselves are usually collections of primary rules. More precisely, primary rules
are rules that govern conduct, and secondary rules are rules that do not. Thus, the distinction between
primary and secondary rules is just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This
leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For
example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds
of rule creation. One of the really nifty things about Hart's introduction of the distinction between primary
and secondary rules was his account as to why secondary rules are important. We can certainly imagine a
system in which there were primary rules, but no secondary rules. This would be a system of customary
law. Certain actions would be required; others would be taboo. But there would be no mechanism by which
the set of obligations could be changed. Of course, customary law need not be completely static. It is
possible that customs might gradually change over time, but this process would require a change in social

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norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost.
Moreover, secondary rules enable individuals to create customized primary rules that govern their private
relationships or privately owned resources.

Difference In Gist
Under primary rules, human beings are required to do or abstain from certain actions; secondary rules are
in a sense parasitic upon or secondary to the first.
The primary rules bind people whether they like or not, wish or not; secondary rules bestow facilities upon
them for realizing their wishes.
Primary rules are essential for social life whereas secondary rules are necessary for the development of a
legal system.

Criticism Made On The Rule Theory

The view of Lord Lloyd is that Hart’s description of a developed legal system in terms of a union of primary
and secondary rules is undoubtedly of value as a tool of analysis of much that has puzzled both the jurists
and the political theorists. Professor Hart himself seems to recognize that his legal system is not necessarily
as comprehensive as he appears to indicate since he suggests that there are other elements in a legal system,
and in particular the “open texture” of legal rules as well as the relationship of law to morality and justice.
Lord Lloyd asks the question whether it is possible to reduce to reduce all the rules of the legal system to
rules which impose duties and to rules which confer powers. This is an over-simplification of a point. It can
be said that many of the so-called rules of recognition do not so much confer power but specify criteria
which are to be applied in particular cases, such as the rules of procedure and evidence. It is doubtful
whether all the so-called secondary rules can properly be treated as a unified class. Professor Hart concedes
that a full detailed taxonomy of the varieties of law still remains to be accomplished.
According to Hart, the rule of recognition is a secondary rule, but the view of Prof. Dias is that it looks
more like the acceptance of a special kind of rule than a power. Hart’s concept is based on the distinction
between rules creating duties and rules creating powers on a legal system is constituted by their union, but
the view of Dias is that it is questionable whether such a sharp distinction can be drawn. The same rule can
create a power plus a duty to exercise it, or a power plus a duty not to exercise it.

According to Dias, Hart’s avowed positivism in relation to his concept of law is open to criticism. Hart says
that the acceptance of a rule of recognition rests on social facts, but he does not concern himself with the
reasons why, or the circumstances in which, it comes to be accepted. Social and moral considerations may
set limits on a rule of recognition at the time of acceptance.

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HLA Hart's Vs Kelsen's
Hart's rule of recognition is more viable than Kelsen's grundnorm. Because, modern culture looks at law
and legal systems empirically - as fundamentally involving questions of social facts which is present in the
rule of recognition whereas for Kelsen the law was fundamentally non- empirical.
Stanley Paulson wrote: “Exactly what ‘normative’ comes to in Kelsen’s Pure Theory of Law has never been
clear”. One might make a similar claim about many contemporary legal theorists: they purport to “explain
legal normativity”, but often fail to articulate what it means to say that law is normative or in what way that
property requires explanation. In the case of Hans Kelsen, this article has offered a reading of his approach
as a limited claim about the logic of normative claims: that when one reads the actions of legal officials
normatively, this assumes or presupposes the validity of the foundational norm of that legal system, a
Kelsenian “Basic Norm”.
Through a focus on the work of H. L. A. Hart, this article has advocated a simple and unambitious view of
legal normativity: law as a sui generis form of normativity. Legal norms frequently prescribe what one
ought to do or ought not to do. However, the rush of legal theorists to describe law as thus making moral
claims, or predictions about official actions, seems ungrounded and unnecessary.

Conclusion
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. Kelsen proposed an
internally consistent model of the judicial process that, in some ways, mirrors attorneys’ and legislators’
intuitive reasoning. It is standard legal logic to trace a law’s legality back to the constitution. The notion
that valid laws constitute an internally coherent system of laws is also flawed. Unlike his predecessors,
Kelsen’s approach recognized the laws of primitive communities as well as the international community as
law. Kelsen’s theories are frequently criticized for their ideas and internal coherence. But he has written the
most enlightening account of the legal process of the century. Despite the fact that none of his special
doctrines have received universal approval, some have made their way into general legal theory. His half-
truths and obvious fallacies shaped the evolution of jurisprudential thought as well.
Thus, from the conclusion and from the detailed study, the hypothesis of the researcher has proved to be
partly correct and partly wrong. The researcher assumed that primary and secondary rules are totally
different which proved to be absolutely right and the researcher also assumed that the theory of Hart was
accepted by the other jurists, but many jurists have criticized it and given totally different opinions which
can be read in the conclusion.

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