University Institute of Legal Studies

JURISPRUDENCE- KELSON’S THEORY OF LAW

21LCT114
Faculty Name : Himanshi Gupta

Classification of Law DISCOVER . LEARN . EMPOWER

 COURSE OBJECTIVES
The Course aims to:

To provide a basic understanding of the debates around the nature of

1 law.

To make an understanding about the structure of the legal institutions

2 and the hierarchy of courts in India.

To make the students aware about the various sources of law and be
able to synthesise such sources and use them to formulate arguments in
3 their research. 2
 COURSE OUTCOMES
On completion, the students are expected to:
CO Title Level
Number
CO1 Students will be able to distinguish between Apply
the major kinds of law, legal systems and
institutions.  

CO2 Students will be able to identify legal issues

and principles underlying any given factual  Analyse
situation, and to undertake and present
research on such issues.

CO3 Students will be able to appreciate the legal Apply

research sources and tools and basic
techniques of legal and logical reasoning.
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OBJECTIVE
• To understand what is law (including meaning and
definition).
• To learn its origin and conceptual development.
• To analysis various types / Kinds of Law.
• To understand the underlying principles of Law .
 INTRODUCTION
• Credit of reviving the original analytical legal thought in
20th century “Pure theory of Law”.
• He was born at Prague in Austria in 1881.
• He was a professor of law at the Vienna University.
• Judge of Supreme Court of Austria for 10 years (1920-30)
• In California he expounded his Pure theory of Law.
  PURE SCIENCE OF LAW
• Suggested that law is related to politics , sociology ,metaphysics
& all other extra legal discipline
• He rejected Austrins definition law as a command.
• He introduce subjective consideration where as he wanted
• it as a objective.
• Theory of Interpretation.
 Normative Science
• He described law as ‘normative science’ as distinguished from
natural science which are based on cause & effect such as law of
gravitation.
• The law of natural science are capable of being accurately
described, determined &discovered in the form of which it is an
essential characteristics of natural science.
• According to him science of law is knowledge of what law ought
to be or it is the ought character which provides normative
character to law. E.g- a commit theft he ought to be punished.
• Like Austrin , Kelson also consider sanction as an essential
element but he prefer it to call it norm.
 GRUNDNORM
• He termed his basic norm as Grundnorm, thus all
other norms drive its validity from Grundnorm.
• Grundnorm is no longer a hypothesis but a fiction
of law.
• We cannot say Grundnorm good or bad as we
have to test it politically ,religiously or ethically
 Implications of Kelson’s Theory

• Kelson’s pure theory of law covers a wide spectrum

of legal concepts such as State, sovereignty, private
& public law, legal personality, rights & duties.
• Law and state are not different but they are in fact
one and the same.
• There is no difference in public and private law.
• Denies any legal difference between natural and
juristic personality.
 Criticism of his theory
1.) It excludes all reference of social facts and felt needs of the
society, thus pure theory of law without sociological foundation
2.) That all the norms excepting the basic norm are pure has no
logical basic.
3.) the theory is found to be based on hypothetical considerations
without any practicability.
4.) Does not provide solution for the conflicts arising out of
ideological differences, rejects the element of justice as a
mere emotion which is indeed not true.
5.) Kelson’s account of legal dynamics is inadequate, it ignores
the purpose of law.
6.) It also suffers from methodological shortcomings. He
ignores the fact that the action of the authority enforcing law
to be valid, has to be in accordance with the procedure and
therefore , it became necessary to probe into the content of
law.
 Indian Position
Legality or validity cannot be judged.
But our Indian constitution amendment is a integral part of
mechanism & is open for judicial review.
Legality or validity of legislative law is determine by constituent law .
BUT
Constituent law cannot be judge or determined on the basis of
external source.
Valid Law has to satisfy two condition :-- 1.) Legally constituted body
2.) Legally valid procedure
To amend constitution “Doctrine of basic structure” is given by
Supreme Court. And basic structure is nothing but Grundnorm.
 Poll

Q. Choose the correct option from following:-

1. Constitution is the grundnorm in India. Whether this
statement is true or false?
1. TRUE
2. FALSE

2. Kelson has given the pure theory of law. Whether this

statement is true or false?
3. TRUE
4. FALSE

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 Assessment Pattern
Students are assessed on the
basis of the following
parameters:
• Assignments
• Surprise Test
• Quiz
• Discussion

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 References
e. Textbooks / Reference Books
 T1 Dr. S.R. Myneni, Legal Research Methodology (Allahabad Law Agency, 2017)
 T2 Prof. Tushar Kanti, Textbook on Legal Methods, Legal Systems &
Research (Universal Law Publishing - An imprint of LexisNexis, 2015)
 T3 Dr. G.P. Tripathi, Legal Methods (Central Law Publications. 2014)
 R1 Goode and Hall, Methods in Legal Research (Singapore: Mc Graw Hill Book
Co., 1985)
 R2 C.R. Kothari, Research Methodology: Methods and Techniques (New Delhi:
Newage International Publishers 2018)
 R3 Harvard Law Review Association, The Bluebook: Uniform System of Citation
(Harvard Law Review, Harvard)
 https://lawtimesjournal.in/what-are-the-different-classifications-of-law/#:~:tex
t=Law%20may%20be%20classified%20in,Substantive%20Law%20and%20Proce
dural%20Law&text=Common%20Law%20and%20equity

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THANK YOU

For queries
Email: himanshi.e10437@cumail.in