JURISPRUDENCE

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 AIR2008SC1640
 In India the Grundnorm is the Indian Constitution, and 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 the land, and no
law which is in conflict with it can survive.
 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 Tax Officer, Zone-I
 In this connection, it may be mentioned that according to theory 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, Mumbai (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.