JURISPRUDENC

Arvind Nath Tripathi

DSNLU
 Hans Kelsen(1881-
1973)
 Propounded by Hans Kelsen (an Austro American
Jurist).
 He was a central figure in drafting the Austrian
Constitution (adopted in 1920), became a judge of
the Austrian Supreme Constitutional Court and,
after emigrating to the US, participated in the
drafting of the UN Charter.
 The ‘Pure theory of law ’ also known as the
‘Vienna School’ of legal thought.
 Hans Kelsen is considered one of the preeminent
jurists of the 20th century and has been highly
influential in Europe
 Pure Theory of Law
 According to Kelsen, a ‘basic’ norm or the
grundnorm is one the validity of which
does not derive from a superior norm.
The grundnorm is the ultimate source of
authority for all other norms .
 Pure Theory of Law

 Grundnorn and Hierarchy of Legal

Norms;
 Legal norms: Facts interpreted
strictly in the light of this. No other
association;
 According to Kelsen,a Law should be
uniform. It should be applicable to
all times and in all places.
 Kelsen’s Pure Theory of
Law
 Legal
theory as science of what law is,
not what-ought to be;
 Effectiveness of norms-out of scope;
 Create formal hierarchy of legal norms
 Criticism
 Prof.Goodhart was doubtful of the value
of an analysis which did not explain the
existence of the basic norm on which the
whole legal system was founded.
 Mr.C.K.Allen writes: “Without the
examination not only of law but of the
implications of law as a function of
society, the ‘pure’ essence distilled by
the jurist is a colourless,tasteless and un-
nutritious fluid which soon evaporates.
 Criticism
 The quality of purity claimed by kelsen
for all norms dependent on the basic
norm has been the subject of attack for a
long period. Julius Stone writes : “Since
that basic norm itself is obviously most
impure, the very purity of the
subsequent operations must reproduce
that original impurity in the inferior
norm…”
 Criticism

 It distorts reality to the extent that it

disregards the socio-political and economic
environment of the law. Law does not exist
as an isolate. It is part and parcel of the
society. Because law governs human
conduct, studying it without human
consideration would be futile.Thus,Laski,in
his Grammar of Politics(1925),described
the theory as ‘an exercise in logic and not
in life.’
 Case Laws
 Government of Andhra Pradesh and Ors.Vs. Smt. P. Laxmi
Devi AIR2008SC1640
 Amarawati And Anr. (Smt.) vs State Of U.P. , 2005 CriLJ
755, (2005) 1 UPLBEC 155
 Bharat Petroleum Corpn. Ltd.Vs.Respondent: Maddula Ratnavalli
and Ors. [2007]5SCR997 [Decided On: 27.04.2007 ]
 Ispat
Industries Ltd. vs. Commissioner of Customs, Mumbai (29.09.2006 - SC)
( 2006 ) 12 SCC 583
  Tube Investments of India Ltd. (Formerly known as TI Diamond
Chain Ltd.)Vs. The State of Tamil Nadu, represented by the
Commercial Tax Officer, Zone-I
  R.B. Dixit Vs. Union of India (UOI) and Anr
Government of Andhra Pradesh and
Ors.Vs.Respondent: Smt. P. Laxmi Devi
AIR2008SC1640
 A. Do Courts have the power to declare an Act
of the Legislature to be invalid?
 The answer to the above question is : Yes. The
theoretical reasoning for this view can be
derived from the theory in jurisprudence of the
eminent jurist Kelsen (The Pure Theory of Law).
 According to Kelsen, in every country there is a
hierarchy of legal norms, headed by what he
calls as the `Grundnorm' (The Basic Norm). If a
legal norm in a higher layer of this hierarchy
conflicts with a legal norm in a lower layer the
former will prevail.
Government of Andhra Pradesh and Ors.
Vs.
Respondent: Smt. P. Laxmi Devi
 In India the Grundnorm is the Indian Constitution, and
AIR2008SC1640
the hierarchy is as follows:
 (i) The Constitution of India;
 (ii) Statutory law, which may be either law made by
Parliament or by the State Legislature;
 (iii) Delegated legislation, which may be in the form of
Rules made under the Statute, Regulations made under
the Statute, etc.;
 (iv) Purely executive orders not made under any Statute.
 If a law (norm) in a higher layer in the above hierarchy
clashes with a law in a lower layer, the former will prevail.
Hence a constitutional provision will prevail over all other
laws, whether in a statute or in delegated legislation or in
an executive order. The Constitution is the highest law of
 Government of Andhra Pradesh and Ors.
Vs. Respondent: Smt. P. Laxmi Devi
AIR2008SC1640
 The first decision laying down the principle that
the Court has power to declare a Statute
unconstitutional was the well-known decision of
the US Supreme Court in Marbury v. Madison
U.S. . This principle has been followed
thereafter in most countries, including India.
 R.B. Dixit Vs.Union of India (UOI) and Anr
Markandey Katju and Rakesh Tiwari, JJ. Decided
On: 27.11.2002

 In every legal system, there is a hierarchy of norms as noted

by the eminent jurist Kelsen in his pure theory of law. In the
Indian legal system, this hierarchy is as follows :
 (1)The Constitution.
 (2)Statutory law, which may either be made by the
Parliament or by the State Legislature.
 (3)Delegated legislation, which may be either in the form of
Rules, Regulations or Statutes made under the Act.
 (4)Executive instructions or Government orders.
 In the above hierarchy, if there is conflict between a
higher law and a lower law, then the higher law will prevail.
 Amarawati And Anr. (Smt.) vs State Of U.P. , 2005
CriLJ 755, (2005) 1 UPLBEC 155

 It may be mentioned that according to the theory of

Jurisprudence of the eminent jurist Kelsen (The Pure Theory of
Law), in the legal system of every country there is a hierarchy
of laws and if there is conflict between a higher law and a lower
law then the higher law will prevail . In our Constitution the
hierarchy is as follows :
 1. The Constitution of India.
 2. Statutory Law, which may either be made by Parliament or by
the State Legislature.
 3. Delegated or subordinate legislation e.g. rules made under a
statute, regulations made under a statute, etc.
 4. Government Orders, Executive and Administrative
Instructions, etc.
  Tube Investments of India Ltd. (Formerly known
as TI Diamond Chain Ltd.)Vs.Respondent: The
State of Tamil Nadu, represented by the
 Commercial Taxit Officer,
In this connection, Zone-I that according to theory
may be mentioned
of the eminent jurist Kelsen (the pure theory of law) in every
country there is a hierarchy of laws and the general principle is
that a law in a higher layer of this hierarchy will prevail over the
law in a lower layer of the hierarchy .In our country this
hierarchy is as follows:
 (i) The Constitution of India
 (ii) Statutory law (which may be either Parliamentary law or law
made by the State legislature).
(iii) Delegated Legislation (which may be in the form of rules
made under the statute, regulations made under the statute, etc)
(iv) Purely administrative or executive orders.
Applying the said principles to the facts of this case, as in the
hierarchy of law, the Constitution provision will supersede any
conflicting statutory provision.
Bharat Petroleum Corpn.
Ltd.Vs.Respondent: Maddula Ratnavalli
and Ors. [2007]5SCR997 [Decided
On: 27.04.2007 ]
“ The theory of the eminent positivist
jurist Kelsen (The Pure Theory of Law) in
every legal system there is a hierarchy
of laws, and whenever there is conflict
between a norm in a higher layer in this
hierarchy and a norm in a lower layer the
norm in the higher layer will prevail”.
Ispat
Industries Ltd. vs. Commissioner of Customs, M
umbai (29.09.2006 - SC
) ( 2006 ) 12 SCC 583
 It may be mentioned that according to the theory of the eminent
positivist jurist Kelsen (The Pure Theory of Law)in every legal
system there is a hierarchy of laws, and whenever there is conflict
between a norm in a higher layer in this hierarchy and a norm in a
lower layer the norm in the higher layer will prevail
 In our country this hierarchy is as follows:
 1) The Constitution of India;
 2) The Statutory Law, which may be either Parliamentary Law or
Law made by the State Legislature;
 3) Delegated or subordinate legislation, which may be in the form
of rules made under the Act, regulations made under the Act, etc.;
 4) Administrative orders or executive instructions without any
statutory backing.