SINHGAD LAW COLLEGE

PUNE
A
PRESENTATION
ON

Legal positivism
 Hart’s theory  Kelsen’s theory

Presented by:
KHUSBOO KHARBANDA
BA.LLB(IV)Year
Roll N0- 39
Subject- Jurisprudence
H.L.A HART’S THEORY
 INTRODUCTION

 The most important architects of contemporary legal positivism are the Austrian jurist Hans Kelsen
(1881–1973) and the two dominating figures in the analytic philosophy of law, H.L.A. Hart (1907–92)
and Joseph Raz, among whom there are clear lines of influence, but also important contrasts.
 Legal positivism’s importance, however, is not confined to the philosophy of law. It can be seen
throughout social theory, particularly in the works of Marx, Weber, and Durkheim, and also among
many lawyers, including the American “legal realists” and most contemporary feminist scholars.
 Positivism is from the Latin root positus, which means to posit, postulate, or firmly affix the existence
of something. Legal positivism is a school of jurisprudence whose advocates believe that the only
legitimate sources of law are those written rules, regulations, and principles that have been expressly
enacted, adopted, or recognized by a governmental entity or political institution, including
administrative, executive, legislative, and judicial bodies.
 PRIMARY RULES

According to some jurist under

the primary rules, individuals Uncertainty
are required to do or abstain
from doing certain acts,
whether they wish to or not.
These primary rules are Static Character
unofficial rule and hence they
suffer from three major defects
- Inefficiency
 SECONDARY RULES

 Secondary rules are rules conferring

powers. These rules which confer
power to facilitate the individual to
act upon. These rules enable Rules of Adjudication
legislature to modify their policies
according to the needs of society.
Hart had given more emphasis on Rules of Change
secondary rules. He justified three
types of secondary rules-
Rules of Change
 LAW AND MORALITY

 As a member of society,
individuals feel morally bound to Voluntary
abide by these rules both as a Importance character of
matter of duty and obligation. moral offences

Hart, therefore, asserts that law

and morality are complementary
and supplementary to each other.
In his view, there are four Forms of moral
pressure, which
attributes of morality, namely: Immunity from
separate it from
deliberate change
etiquette and
other social rules
 MERITS

It has discouraged speculative thinking.

• Theory explains why the law is applicable even to it framers.

Elaborated an important aspect of legal system, i.e, the State officials

derive power or authority from law.
• Co-related the concept like power, law and study.
 DEMERITS

Not considered any discretionary powers, doctrine in his theory.

• Hart has confused between powers and laws.

Hart has compared a club with a State This is a wrong analogy.

• Compared it with a game of cricket.

HANS KELSEN’S THEORY
 INTRODUCTION
 Hans Kelsen, (1881-1973) was another jurist who has the credit of reviving the
original analytical legal thought, in the 20th century through his 'Pure Theory of
Law’.
 He was born at Prague in Austria in 1881 and was a Professor of Law at the
Vienna University. 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 of several American Universities and authored many books.
 He was emeritus Professor of Politic Science in the California University when he
expounded his Pure Theory of Law, which is consider to be Kelsen's unique
contribution to legal theory.
 PURE THEORY OF LAW
Pure Theory is closed to some other theories.

The Theory of law must be distinguished from the law itself.

Theory of law should be uniform.

Law must be pure.

Law is a normative science.

Hierarchy of normative relations.

Validity of legal norms.

FEATURES OF KELSON’S THEORY

Reduce chaos and confusion.

What law actually is.

It is a normative science.

A theory of norms.

Confined to a particular system of positive law.

 MERITS

It makes the most refined development of analytical positivism.

• Kelsen's concept of legal system is clear, original and striking.

Uplifted the status of law by treating law as a separate body of

knowledge.
• Kelsen recognized international law as a law.
 DEMERITS

Grundnorm vague & confusing.

• Natural law is ignored.

Supremacy of international law.

• No practical significance.