Inroduction Hans Kelsen : Born Oct. 11. 1881, Prague, Bohemia , Ausrtia-Hungary (now in Czech Republic) Died April. 20. 1973, Berkeley, California, U.S. Austrian-American legal philosopher, teacher, jurist, and writer on international law, who formulated a kind of positivism positivism known as the “pure theory” of law. Kelsen‟s “pure theory” was first presented in Hauptprobleme der Staatsrechtslehre Staatsrechtslehre (1911; “Chief Problems of the Doctrine of International Law”). He considered that a theory of law should validate and and give order to law itself. By “pure” he meant that a theory of law should be logically self-supporting and should not depend on extralegal values. His theory greatly influenced Eastern Europen countries like Chekoslovakia ( now Czeck and Slovakia ) and Poland and adopted written constitution getting persuaded by his theory. Though he basically stresses on „ought propositions‟ still is considered to be a „positivist‟ because there is distinction between ought and ought character of law and he talks about the ought character of law. He tells about the nature of „IS‟ law which is „O „Ought‟ in ught‟ in character. He never argued that ought law is the law.
THE PURE THEORY OR PURE SCIENCE OF LAW Kelsen argued that a theory of law must deal with law as actually laid down and not as it ought to be. A theory of law must be distinguished from law itself. Law consists of a mass of heterogeneous rules and function of a theory of law is to organise them into a single ordered pattern. According to Kelsen a theory of law should be uniform, i.e. it should be applicable all times and in all places. Thus he advocated general jurisprudence. For a theory to be general it needs to be kept away from variable factors such as ethics, politics, sociology, history etc, it must in other words be „pure‟. He argued that such a theory is possible devoid of all other dimensions coming from outside and tried to isolate it from the above mentioned factors. According to him all those approaches which identified other disciplines makes it „impure‟. Kelsen did not deny their value: all he said was that a theory of law must be keep clean of them. In other words he said law pure and simple. NORMS According to Kelsen laws are „ought‟ propositions because laws are normative in nature i.e. it ordains, mandates certain behavioral patterns. Thus knowledge of law means knowledge of „oughts‟ i.e. „norms‟. Norm is a proposition in hypothetical form: „if X happens, then Y ought to happen‟.
Every law commands a particular conduct that is why it is a norm (prescribed
standard). As Kelsen said – Rules were the observable principle of the norms. Rules were thus the surface feature of law. Norms its internal essence, while these may have originated as acts of will of a parliament or a judge adopting custom, once accepted as they take an independent existence; they do not depend on upon the will of some commander to retain their validity. A norm is a rule stating that an individual ought to behave in a certain way but not asserting that such behavior is the actual will of anyone.
AUSTIN AND KELSEN VIEWS Austin – Law is a command of the sovereign backed by sanction Kensen on the other hand rejected the idea of command given by Austin because it introduces a psychological element into the theory of law which should not happen in order to keep the theory „pure‟. Kelsen concede law is – „de-psychologised command, a command which does not imply a „will‟ in a psychological sense of the term, a rule expressing the fact that somebody ought to act in a 1
certain way, without implying that anybody really „wants‟ the person to act in that way‟
Secondly, according to Austin sanction was something outside a law imparting validity to it. For the operation of the sanction supporting a rule resolves itself into the operation of other rules; and further, the validity of a rule has nothing to do with its sanctions. To Kelsen, the operation of the sanction itself depends on the operation of other rules. For example – One rule prescribes that if a man has committed theft, he ought to be arrested; another prescribes that he ought to be brought to trial; other prescribes how the trial ought to be conducted; another rule prescribes that if the jury brings in a verdict of „guilty‟ the judge ought to pass sentence; and another prescribes that some official should carry the sentence into execution. In this way the contrast between law and sanction in the Austinian sense disappear. Thus with reference to the validity of a rule, Kelsen asserted that validity of „ought‟ should not be derived from any „is‟ of fact outside the law, but from some other „ought‟ standing behind it and imparting validity to it. The validity of a norm is ascertained with reference to its authorizing norm, which confers a power to create it and may also specify conditions for its exercise. A 2
particular norm, therefore is „authorised‟ if it can be subsumed under a more general norm .
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Kelsen General theory of law and state p. 35 Kelsen’s Concept of Authority (1977) 36 CLJ 353
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KELSN‟S PICTURE OF LAW AS A SYSTEM O F NORMS : Law comprises of several norms – ought propositions. In a legal system these no rms are arranged in a hierarchical fashion and a norm which is anterior gives validity to one which comes after it and these norms take their validity from one „ basic norm‟ which he calls the „grundnorm‟. The validity of each rule comprising a sanction depends on some other rule, which in turn rests on another and so on. Example – the imprisonment of a person for theft is valid in so far as the prison authoriies acted in accordance with the norm. „ If the judge so orders, then the prison authorities ought to imprison him‟. The judge‟s order is valid in so far as he acted according to the rules regulating the competence of the court, rules as to how the legal process ought to be conducted, a rule of law that „If a person commits theft, he ought to be imprisoned‟. These rules in their turn are valid in so far as the y emanates from some statutes and precedents. Thus Kelsen‟s picture of a legal order seems like a collection of oughts arranged in a hierarchical fashion depending downwards from a Grundnorm or branching upwards from it, whichever way one chooses to depict it.
GRUNDNORM
RULES / REGULATIONS
CONSTITUTION
CONSTITUTION
OR
LEGISLATION
RULES / REGULATIONS
LEGISLATION
GRUNDNORM
THE GRUNDNORM Kelsen recognized that every legal order should not necessarily have the same grundnorm, but there will be a grundnorm of some kind. It can be a written constitution or a will of a dictator. The grundnorm is not the constitution but it is simply the presupposition that this „constitution ought to be obeyed‟. NATURE OF GRUNDNORM Now the question arises if the grundnorm validates all other norms then what imparts validity to the grundnorm? The assumption is all other norms which receives their validity from the grundnorm are legal in nature (legal norms), whereas the grundnorm is something which is prelegal or meta-legal in nature. VALIDITY AND EFFECTIVENESS Thus every norm other than the grundnorm is valid not because it is likely to be obeyed by those to whom it is addressed, but by the virtue of another norm imparting validity to it. Thus a norm becomes valid before it is effective, the example can be of a new statute which becomes valid before being applied. With reference to a given norm, its validity and its effectiveness have to be kept separate. Effectiveness of the order as a whole is a condition not a reason of the validity of 3
grundnorm: a conditio sine quo non, but not a condition per quem . Thus the issue why a grundnorm is valid is meaningless; what is important is that the grundnorm should secure to itself minimum of effectiveness i.e. minimum number of persons who are willing to be abide by it. SUBSTITUTION OF GRUNDNORM Kelsen admitted that even the grundnorm can get substituted. The parameter which he gave was minimum of effectiveness which he calls as „by and large effective‟.When a grundnorm ceases to
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Kelsen General Theory of Law and State p 119
derive a minimum of support, it ceases to be the basis of the legal order, and any other proposition which does obtain support will replace it.
