CHANAKYA NATIONAL LAW UNIVERSITY A Project On
Pure theory of law
SUBMITTED TO: - Mr. Manoranjan Jha FACULTY: - Jurisprudence I
Made By: Nidhi Navneet 3rd year (5th sem) ROLL No.570 B.A.LL.B. (Hons)
Pure Theory of Law
ACKNOWLEDGEMENT I am feeling highly elated to work on the case law “Pure Theory of Law” under the guidance of my faculty of Jurisprudence, Mr. Manoranjan Jha. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support.
----------Thanking you Nidhi Navneet C.N.L.U.
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Pure Theory of Law
RESEARCH METHODOLOGY Research Methodology The project is basically based on the doctrinal method of research as no field work is done on this topic.
Aims & Objectives To do an in depth analysis of the concept of Pure Theory of Law. To know what the theory states and whether it is truly applicable in the modern legal society. Also, to know about the grounds upon which it is being criticized by other jurists. Further, the Aim of this project is to what implications it carry and contributions it has made in the legal jurisprudence.
Sources of Data The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project1. Books 2. Websites
Mode of Citation The researcher has followed a uniform mode of citation throughout the course of this research paper.
Type of Study For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this topic, the researcher is providing the descriptions of the existing facts.
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Pure Theory of Law CONTENTS
Research Methodology ........................................................................................................2 Introduction ..........................................................................................................................4 Historical Development of Pure Theory of Law .................................................................5 Biological Sketch of Hans Kelsen....................................................................................6 Pure theory of law ................................................................................................................6 Justification for name of theory as Pure Theory of Law: .................................................8 Norms and the Basic Norm ..............................................................................................8 Hierarchy of Norms and Law-Making Process ..............................................................10 Validity and Effectiveness of Norms .............................................................................11 Sanction ..........................................................................................................................12 Implications of Pure Theory of Law ..................................................................................13 The Pure Theory of Law and State ................................................................................15 The Rule of law: Revolutions and the Legality under the Pure theory ..........................16 Criticisms of Pure Theory of Law .....................................................................................17 Conclusion .........................................................................................................................19 References ..........................................................................................................................22
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Pure Theory of Law INTRODUCTION The Pure Theory of Law is a general theory of law that conforms to the requirements of legal positivism.1 As such, it aims to understand the law as it is, not as it ought to be, and its method is structural analysis.2 More specifically, it provides us with a set of fundamental legal concepts – such as ‗legal system,‘ ‗norm,‘ ‗right,‘ ‗duty,‘ ‗sanction,‘ and ‗imputation‘ – that we can make use of when trying to understand and describe the law in a scientific manner.3 We might say that the Pure Theory aims to lay down the theoretical basis for other legal disciplines, such as contract law, constitutional law, legal history, comparative law, etc.4 The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973). Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‗pure‘ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded ―characterizes itself as a ‗pure‘ theory of law because it aims at cognition focused on the law alone‖ and this purity serves as its ―basic methodological principle‖5 In the words of Prof. Dias, the pure theory of law of Hans Kelsen represents a development in two different directions. It marks the most refined development to date of analytical positivism. It also marks a reaction against the welter of different approaches that characterised the opening of the 20th century. This does not mean that Kelsen reverted to ideology. As a matter of fact, he sought to expel ideologies of every description and present a picture of law, austere in its abstraction and severe in logic.6
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Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, p. xiii; Kelsen, Hans, On the Pure Theory of Law, Israel Law Review Vol. 1 1966, p. 5. 2 Kelsen, Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960], p. 112. 3 Kelsen, Hans, The Function of the Pure Theory of Law, Law: A Century of Progress 1835 to 1935. Vol. 2 1937, p. 231. 4 Ibid. 5 Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), Available at: . 6 R. W. M. Dias, Jurisprudence, 1976, London.
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Pure Theory of Law Kelsen‘s analysis of the formal structure of law as a hierarchical system of norms, and his emphasis on the dynamic character of this process, are certainly illuminating and avoid some, at any rate, of the perplexities of the Austinian system.7 Still, this theory of Kelsen is criticised on many grounds. These criticisms are further dealt in this project work. Kelsen was criticised by many Jurists like Julius Stone, Freeman etc., but still the Pure theory of Law hold stand in the modern world democracies governed by their respective constitutions.
HISTORICAL DEVELOPMENT OF PURE THEORY OF LAW As the natural law theory lost some of its credibility owing to its fantastic but unverifiable claims of universal reason at the end of the 18th century a reaction in the form of legal positivism, the theory that the true knowledge of law can only be accomplished by observing law as it is, not as it ought to be, took hold. For a long while, the Imperative Theory of Law propounded by John Austin held sway but by mid 20th century the principle of the command of the sovereign backed by force, which had assumed an elevated position in the realm of legal positivism, was in remission. Its unrepentant insistence on the indispensable place of coercive force melted before the more dynamic theories preaching the systematic quality and normative nature of law. Pure theory of norms was one such theory attempting to erode these errors. Nineteenth century German legal thought had created a ―general‖ theory of law as a field of study separate from the ―philosophy of law or moral considerations of law‖.8 Kelsen saw himself as continuing the project of a general theory of law, but in a way which would remove some of the errors that still affected this discipline. Thus he asserted for the need of a purified theory of law ―Pure theory of law‖.9 Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. 7
M. D. A. Freeman, LLOYD‘S Introduction to Jurisprudence, Sweet 7 Maxwell, London, 7 th ed., 2001, p. 282. 8 C.B. Gray, The Philosophy of law: An Encyclopaedia,1st ed. (New York, 1999) at 478. 9 Ibid., at 478
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Pure Theory of Law Thus, Kelsen proposed the analysis of a legal system simply as a structure of norms, in other words of ―ought‖- propositions, which could be, within its own terms, valid and illuminating, regardless of the moral quality of those norms and indeed independent of all extraneous ethical social, economic or political values. Kelsen‘s scheme had the result of effacing the distinction between public and private law and between law itself and the state. Each one of the norms that collectively amount to everything we need by the state, is no more and no less of an ―ought‖-proposition than any rule located in any other legal system stripped down to this minimum quality, all are of the same character.10
Biological sketch of Hans Kelsen The Austrian jurist was born at Prague in 1881 and was Professor of Law at the Vienna University. He was the judge of the Supreme Constitutional Court of Austria 1920-30. Subsequently, he came to England and in 1940 he moved to United States and became Professor of Law in several American Universities. Of late he was emeritus Professor of Political Science of the University of California where he expounded his Pure Theory of Law in the twentieth century which has evoked worldwide interest. Kelsen has been the author of several works – of Austrian Constitution (1920), General Theory of Law and State (1945), The Pure Theory Law (1934) revised (1960), Principle of International Law (1952), What is Justice (1957), and many other works. Kelsen has opposed with determination the tendency on the part of jurists to broaden the scope of jurisprudence to embrace all social sciences and has rigidly advocated the separation of law from metaphysics, politics and sociology. He is disgusted at ‗politics in masqueradings as jurisprudence‘. Like John Austin in the nineteenth century Kelsen challenges both the philosophical and natural law theories of law. He owed his fame chiefly due to the Pure Theory of Law or the Doctrine of Pure Law divested of all extralegal and non-legal elements.11
PURE THEORY OF LAW A theory of law must be distinguished from law itself. There is no logic in natural phenomena. A theory of nature which purports to take out all of them, must be 10
J.M. Kelly, A Short History of Western Legal Theory, 7th ed. (Oxford, 2001) at 356.
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S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach (Allahabad : Central Law Agency,2004) at 24.
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Pure Theory of Law logically self-consistent. Law is composed of heterogeneous rules, and the function of any theory of law is to organise it into a clear single ordered pattern. Kelsen was able to achieve this through his hierarchy of norms “Stufenbau ‖ and distinction between ―is and ought‖. A theory of law should be ―pure‖ (purity) or independent of the influences of extra-legal values of any kind. Thus Hans Kelsen (1881 - 1973) believed and propagated a theory that in its purity was divorced from all extra-legal elements such as sociology, philosophy, ideology, psychology, politics, ethics, etc., which elements were to be left to the ―ists‖ in the metaphysical and ethical world – the sociologists, the psychologists, the ethicists and the moralists. By so doing he intended to lay the field bare for psychologists, sociologists, psychiatrists and other non-law exponents to conduct a more illuminating inquiry into these non law elements. To his credit, as others who reacted against the doctrines of natural law sought for an empirical colander through which they could sift law in the misguided belief that law was not unlike the natural sciences, Kelsen was quick to decipher that law belonged, not to the natural sciences, but rather to the human sciences. He shied away from the content of the law and built his theory on the form. Kelsen‘s goal is a pure science of law: it is not a theory of pure law. He envisages no such chimera as a ‗pure norm‘.12 Kelsen is not disinterested in Justice or sociology or pshycology. The pure theory provides the basic forms under which meanings can be known scientifically as legal norms – which will have a content, although the particular content is empirically contingent, and which, once determined as having a particular content, can be morally evaluated.13 Thus, ―far from being an attempt to exclude consideration of experience, content and justice, the pure theory is intended to make attention to them more rigorously possible.‖14 Therefore the theory‘s object of cognition—the norm—is seen without reference to its content or to such questions as why it is (or is not) obeyed. But Kelsen intends thereby to clarify the field for those who are primarily interested in these questions. That the study of law has been ‗adulterated‘ by other disciplines is, according to Kelsen, perfectly understandable. These disciplines deal with subject matters ‗closely connected‘ with law. But the pure theory of law, Kelsen insists, ―undertakes to delimit the cognition of law against these disciplines.... because it 12
Cf. J. Harris, Law and Legal Science (1979), pp. 34-35. Per Stewart, op.cit., I. Stewart (1990) 17 J.L.S. at p. 128. 14 Ibid. 13
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Pure Theory of Law wishes to avoid the uncritical mixture of methodologically different disciplines.... which obscures the essence of the science of law‖.15
Justification for name of theory as Pure Theory of Law: It was the objective of Hans Kelsen to purify the science of law from all evaluative criteria and ideological elements. Justice, for example, was viewed by Kelsen as an ideological concept. Justice, to him, was an ‗irrational ideal‘ representing the subjective predilections and value preferences of an individual or group.16 ―the usual assertion ,‖ he wrote, ―that there is indeed such a thing as justice, but that it cannot clearly be defined, is in itself a contradiction. However indispensable it may be for volition and action of men, it is not subject to cognition. Regarded from the point of view of rational cognition, there are only interests, and hence conflicts of interests.‖17 The Theory of Law, Kelsen maintained, cannot answer the question of what constitutes justice because this question cannot be answered scientifically at all. If justice is to be given any scientifically meaningful denotation, it must be identified with legality. According to Kelsen, it is ‗just‘ for a general rule to be actually applied in all cases where, according to its content, this rule should be applied. ―Justice means the maintenance of a positive order by conscientious application of it.‖18 Kelsen‘s methodological objectives did not stop with the elimination of political and ideological value judgments from the science of law. He wished to go a step further by keeping legal theory free from all extraneous, nonlegal factors. ‗Uncritically‘, he said, ―the science of law has been mixed with elements of psychology, sociology, ethics and political theory‖.19 He sought to restore the purity of the law by isolating these components of the work of a lawyer or judge which may be identified as strictly ‗legal‘.20
Norms and the Basic Norm The purpose of the Pure theory, Kelsen says, ―is to know and to describe its object‖.21 Kelsen approached law as the ―object‖ of his theory-with the aim of identifying the necessary conditions for its cognition. He claimed that his theory explains how legal 15
The Pure Theory of Law, p.1. Hans Kelsen, ‗General Theory of Law and State‘, transl. A. Wedberg (Cambridge, Mass., 1949), p. 13. 17 Kelsen, ‗The Pure Theory of Law and Analytical Jurisprudence’, Harward Law Review, p. 44, at 48-49 (1941). 18 Ibid. 19 Kelsen, ‘The Pure Theory of Law, transl. M. Knight (Berkeley, 1967), p. 1. 20 Edgar Bodenheimer, 21 H.Kelsen, Pure Theory of Law, 2nd ed. (Berkeley, 1967) at 1. 16
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Pure Theory of Law phenomena must be interpreted and organized within a jurist‘s mind, in order for the jurist to perform the task of recognizing certain norms as binding laws. Kelsen proposed every legal system as a hierarchical structure, an interwoven unit of norms in which every norm is dependent for its validity upon a superior norm. Thus to merit the appellation law there must be some other norm in the form of a backbone conferring validity on it and this connection is traced all the way back to an ultimate norm, the basic norm or Grundnorm in which resides the validity of all other norms. The Pure Theory conceives of law as a system of norms,22 where norms function as schemes of interpretation in light of which we can view human behaviour and other natural events.23 Kelsen defined Norm as meaning of an ‗act of will‘ by which Human behaviour is ‗commanded‘, ‗authorized‘ and ‗permitted‘.24 Norms are regulating setting forth how persons are to behave and positive law is thus a normative order regulating human conduct in a specific way. A norm is an ‗ought‘ proposition; it expresses not what is, or must be, but what ought to be, given certain conditions; its existence can only mean its validity, and this refers to its connection with a system of norms of which it forms a part. It cannot be proved to exist factually, but simply to be derivable from other norms, and is, therefore, valid in that sense. But if a norm can only be derived from other norm, theoretically, this means that one can continue this derivation ad infinitum, but in practice, since norms are concerned with human conduct, there must be some ultimate norm postulated on which all the others rest. This is the Grundnorm (the basic norm). So far as the legal system is concerned this basic norm must be extra legal, since ex hypothesi it does not rest upon another legal norm. But Kelsen is at pains to point out that the choice of basic norm is not arbitrary. On the contrary it must be selected by the legal scientist on the principle of efficacy, that is to say that the legal order as a whole must rest on an assumption that is by and large efficacious, in the sense that in the main people do conduct themselves in conformity with it.25
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Kelsen,Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960].p. 215-21. Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, at p. 41. 24 Ibid. 25 What is Justice, p. 268. 23
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Pure Theory of Law According to Kelsen, the basic norm cannot, unlike the other norms, be justified by reference to other or more validating law. Thus it may instead derive its validity from the fact of recognition, acknowledgment and acceptance conferred on it by a sufficient minimum number of persons in the political entity. Law therefore is not to be isolated from the organised structure and power of the state. This structure is normative and thus the concept of sanctions which plays a rather exclusive role in the Austinian doctrine as the element which makes law functional, relies on other forces such as prosecutors, officials and judges to perform their aspects of the normative structure before sanctions are activated and inflicted.26 The basic norm is non positive and so is not the concern of legal science. The choice of the basic norm may also have important implications in determining the relation of national state law to international law. For if the basic norm is in conformity to the constitution of each state, there will be a pluralistic congeries of independent legal systems, while if that norm is taken in relation to international law, there will be a monistic world order, from which each national law will derive.
Hierarchy of Norms and Law-Making Process Kelsen‘s description of the legal process as the hierarchy of norms, the validity of each norm (apart from the basic norm) resting upon the higher norm and each level in the hierarchy representing a movement from complete generality to increasing individualism, has sometimes been misunderstood as suggesting that the interpretation and application of general rules are of purely mechanical character. This is far from being Kelsen‘s view. On the contrary, he points out that though law has peculiarity of regulating its own creation, a higher norm can determine the creation and content of another norm only to a certain extent. In so far as there is discretion or a choice as to the applicable rule, the norm creating function takes on a political character. This is obvious in the case of the American Supreme Court interpreting the Constitution, but it is the same with the application of law by any legal authority. And the function does not cease to be legal on this account, for it still takes place within the framework of norms.27 Kelsen does not negate the value of the sociology of law. This stands side by side with normative jurisprudence and neither can replace the other. The latter deals with 26 27
Curzon, L.B, Jurisprudence, 2nd ed., 1995, London: Cavendish Publishing Ltd., at p. 57. Ibid.
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Pure Theory of Law validity and the former with efficacy, but the two are inter-connected, since the sociology of law presupposes the normative concept of law. But Kelsen makes a curious distinction between the role of the legal scientist and of a law making authority, such as a judge. The former can only describe and not prescribe, and therefore, he cannot exercise any choice open to the latter. The legal scientist, must therefore, accept any decision as valid, since it is outside his competence to say whether it is within the framework of the general norm in question. And though, he can point out possible interpretations, he must leave the lawmaking authority to make the choice, for to try to influence this authority is to exercise a political and not a legal function. This seems to involve an act of renunciation on the part of legal science in which it is hardly likely to acquiesce, and apparently treats the advocate arguing a case as a politician rather than a lawyer.28
Validity and Effectiveness of Norms To say that a legal norm is valid, Kelsen explains, is to say that it exists, and to say that it exists is to say that it ought to be obeyed or applied, that it has binding force.29 To say that a valid legal norm expresses an objective ought is just another way of expressing the same idea. Kelsen maintains, in keeping with the separation thesis, that legal validity is conceptually independent of morality: ―[t]here is no kind of human behaviour that, because of its nature, could not be made into a legal duty corresponding to a legal right.‖30 He also maintains, in keeping with the is/ought distinction, that the validity of a given legal norm can only be explained by reference to the validity of another and higher legal norm. Thus a norm, n1, is legally valid if, and only if, it was created in accordance with another and higher legally valid norm, n2, which in turn is legally valid if, and only if, it was created in accordance with another and higher legally valid norm, n3, etc.31 According to the Pure theory statements about the validity of legal norms presuppose effectiveness in two ways, a legal norm loses its validity if it has been ineffective for a long time, if it is a part of a system of norms which is, by and large effective. As for determining the validity of any particular norm, the citizen must think that it exists or that there is a power behind it that obligates those whose behaviour it is 28
M. D. A. Freeman, Lloyd’s Introduction to Jurisprudence, 8th Edition, 2008, Sweet & Maxwell publication, at p. 310. 29 Supra note 22. 30 Supra note 23. 31 Supra note 22; supra note 23.
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Pure Theory of Law meant to order4. That a norm is effective then, while a condition of validity, is however not the basis of its validity5. In that way the validity of each norm may be weighed in the scale of the basic norm. Thus, sanctions are what ought to apply after hurdling certain conditions. The law takes the form of a conditional order directing officials, not the citizen, on what to do given certain conditions7. In Kelsen‟s enlightened view, the fact that A has committed murder is not of necessity visited by the sanction of death. Rather, depending on certain conditions imposed by law, A ought to be visited by the sanction of death. The allowance is for the performance of these officials and judges of the functions that this normative structure has imposed.
Sanction For Kelsen, every system of norms rests on some type of sanction, though this may be of an undifferentiated kind, such as disapproval by a group. The essence of law is an organisation of force, and law thus rests on a coercive order designed to bring about certain social conduct. Sanctions are the key characteristic of law not because of any supposed psychological effectiveness but because it stipulates that coercion ought to be applied by the officials where delicts are committed. The law attaches certain conditions to the use of force, and those who apply it act as organs of the community. Kelsen bases this view on the historical facts that there has never been a ‗large‘ community which was not based on a coercive order. Kelsen commits himself to the view that every norm to be ‗legal‘ must have a sanction, though this may be found, as for instance in constitutional law by taking it together with other norms with which it is interconnected.32 Kelsen treats any breach of a legal norm as a ‗delict‘, whether this would normally be described in traditional terms as falling within the criminal or the civil law. For Kelsen, to be legally obligated to a certain behaviour means that the contrary behaviour is a delict and as such is the condition of sanction stipulated by a legal norm. Since Kelsen regards a sanction as a essential characteristic of law, no conduct can amount to delict unless a sanction is provided for it. This view has been criticised,33 with some warrant, on the ground that though the absence of a sanction may make law ineffective, this is not the same as its being invalid, nor does the absence of a sanction necessarily entail invalidity. Emphasis on sanctions also underplays the significance of duties. There are many examples of public authorities 32 33
General theory of Law and State, pp.29, 143-144. By A. D. Woozley (1968) 77 Mind 461, 463-465 and Razz, The Concept of a legal system, pp. 78 et seq.
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Pure Theory of Law which have obligations imposed on them but where no sanctions as such follow from default. A further feature of Kelsen‘s analysis of the sanctionist view of law is that legal norms are stated in the form that, if the person does not comply with a certain prohibition, then the consequence is that the courts ought to inflict a penalty, whether criminal or civil. It follows that for Kelsen the content of legal norms is not primarily to impose duties on the subject to conform, but rather to lay down what judges or officials are expected to do in the event of a delict. Accordingly, for Kelsen the norm which lays down the sanction, involving a direction to the judge, is the primary norm, though he recognised that there is a secondary norm which stipulates the behaviour which the legal order endeavours to bring about by announcing the sanction. This conflicts with the orthodox view that legal duties set standards of conduct and accordingly impose obligations on society as a whole.34
IMPLICATIONS OF PURE THEORY OF LAW Certain conclusions were drawn by Kelsen. There is no distinction between public and private law. That is due to the fact that all law emanates from the same Grundnorm. Both Public and Private laws are a part and parcel of a single process of concretisation. Another conclusion is that the legal system is an ordering of human behaviour. The idea of Duty is the essence of law. That is evident in the ‗ought‘ of every norm. The idea of a right is not essential. It is said to occur ‗if the putting into effect of the consequence of the disregard of legal rule is made dependent upon the will of the person who has an interest in the sanction of the law being applied‘. The idea of right is merely a by-product of law. The idea of individual rights is not the foundation of criminal law today. Formerly, the machinery of law was set in motion by the injured person, but now the same is set in motion by the State. it is true that the idea of right is still the basis of the law of property, but it is possible that the same may be dispensed with in the future. The idea of ‗personality‘ is simply a step in the process of concretisation. By a person is meant a totality of rights and duties. Kelsen rejects the distinction between natural person and juristic persons. Natural persons are biological entities and are outside 34
Supra note 21, at p. 311-13.
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Pure Theory of Law the province of legal theory. The state is a system of human behaviour and an order of social compulsion. ―Law is also a normative ordering of human behaviour backed by force‖. Thus, the state and law are identical. It is not correct to say that law is the will of the state as both the State and Law are identical. The State as person is simply the personification of law. According to Kelsen, legal dualism is nothing but a reflection of and substitute for theology with which it has substantial identity. To quote Kelsen : ―when we have grasped, however, the unity of state and law, when we have seen that the law, the positive law (not justice), is precisely that compulsive order which is the State, we shall have acquired a realistic non-personificative, non- anthropomorphous view, which will demonstrate clearly the impossibility of justifying the state by the law, just as it is impossible to justify the law by the law, unless that term be now used in its positive sense, now in the sense of right law, justice. The attempt to justify law by law is vain, since every state is necessarily a legal state. Law, says positivism, is nothing but an order of human compulsion. The State is neither more nor less than the law, an object of the normative, juristic knowledge in its ideal aspect, that is, as a system of ideas, the subject matter of social psychology or sociology in its material aspect, i.e., as a motivated or motivating physical act (force).‖ As the State is nothing but a legal construction, there is no demarcation between physical and juristic persons. As law is a system of normative relations and uses personification merely as a technical device to constitute points of unification of legal norms, the distinction between natural and juristic persons is irrelevant. All legal personality is artificial and deduces its validity from superior norm. According to Kelsen, the concept of person is merely a step in the process of concretisation and nothing else. Once the hierarchic character of law is grasped, the distinction between lawmaking or legislation on one hand and execution or application of law on the other, has not the absolute characterwhich the traditionalists attribute to it. The majority of the legal acts are at once legislative and judicial acts. with every such act, a norm of superior degree is put into execution and a norm of inferior degree set up. For example, the first form of the constitution which is a law-making act of the highest degree, is the execution of the basic norm.
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Pure Theory of Law The Pure Theory of Law and State In the Pure theory the distinction between ―the State‖ and ―Law‖ also disappears, as the state can only be described in terms of the norms which set out its structure and mechanisms. These norms do not differ in kind from the other norms which set out its structure and mechanisms in the legal system. The unity of a legal system explains in presenting a definition of law as a coercive order, that the statue is an entity that lays exclusive claim to the legitimate use of forceful coercion. This is an idea that can be traced back to the socialist Max Weber (1864-1920). Weber defined a state as a humancommunity that successfully claims the monopoly of the legitimate use of physical forcewithin a given territory.35 Kelsen proposed the analysis of a legal system simply as a structure of norms, in other words of ―ought‖ propositions, which could be, within its own terms, valid and illuminating regardless of the moral quality of those norms, and independent of all extraneous ethical social, economic, or political values. This scheme has the result of effacing the distinction between public and private law and between law itself and the state. Kelsen believed, ―a social order seeks to bring about the desired behaviour of individuals‖. Raz notes, ―The intention to affect someone‘s behaviour is replaced by the intention to create a norm.‖36 This is similar to law, which is a norm that is present to prohibit certain behaviour, thus law and state flow as one. For the state is but a complex of norms. Each one of the norms that, collectively, amount to everything we mean by ‗the State‘, is no more and no less an ―ought‖- proposition than any rule located in any other part of the legal system; stripped down to the minimum quality, all are of the same character. Kelsen believed that the rule of law should be used in descriptive sense, so that they would not be confused with the norms created by the law making authorities, he believed the rule of law is the law of nature. The rule of law like the law of nature connects two facts within on another as condition and consequence. The condition here is the ―cause‖, the consequence is the ―effect‖. The principle according to which natural science describes its object is causality; the principle according to which the science of law describes its object is normativity. The rule of law (the legal norm) is a prototype of good being rewarded and evil being punished. 35
Marx Weber, Politics as a Vocation, 1st ed. (Munich 1919) at 398 - said that self defence in criminal law is generally considered to be the main exception. Reason being one did not wish to break a criminal norm but was forced to by the acts of another. 36 J. Raz, ―The Purity of the Pure Theory‖, (1981) Philosophia at 496.
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Pure Theory of Law The Rule of law: Revolutions and the Legality under the Pure theory The experience of the era of war which, in Western Europe closed in 1945 led to a former entrenchment of constitutionalism and of human rights, as well as the revival of interest in natural law. This resulted in the idea of legality (the rule of law, the Rechtsstaat), increasing in value and acceptance. This in turn led to the focused interest in how to evolve and justify a revolution regime regardless of whether there was violence or not, it could even have been brought by a peaceful revolution. Kelsen famously applied his theory to situations where the basic norm changes radically (i.e. revolutionary situations). According to Kelsen, when this occurs that is,when revolution becomes a successful Coup d’etet a new basic norm is generally presupposed, authorising and validating the new constitution. Suppose that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic state, and to introduce a republican form of government if they succeed. Then if the old order ceases and the new order regulates having elements of the old order, by and large in conformity with the new order, then this order is considered as a valid order. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. This means that new basic norm is presupposed. Kelsen theory is both logical in theory and in practice. Although Kelsen never expressly authorised judicial use of his theory, it was cited as justifying judicial recognition of new regimes following coups in Pakistan (1958) and in Uganda (1965, and also following the Rhodesian Unilateral Declaration of Independence in 1965). In State v. Dosso37 the Supreme Court of Pakistan had held usurper to be effectively in power hence lawful on Kelsenion grant. A similar decision was reached in Uganda v. Commissioner of Prisons Ex P Matouw.38 On the other hand, the revolution may have taken the form (as in Rhodesia) of breaking loose from a prior but continuing legal system (in Rhodesia‘s case, that of the United Kingdom whose parliament had in English law the power to legislate for the territory and whose ultimate rule of recognition could not, of course, be affected by what the local usurpers did).
37 38
[958] 2 Pakistan SCR 180. [1966] EA 514.
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Pure Theory of Law CRITICISMS OF PURE THEORY OF LAW Several problems have been associated with the theory but not all those problems are accurately stated arising from a substantial misunderstanding of the theory and in the confusion in the minds of jurists as to the distinction between constitutions for example and a basic norm. One example is the Black‘s Law Dictionary, which notes that the Grundnorm ―may be an elaborate system of lawmaking, such as a constitution‖. A constitution as will in due course become clear, by the reckoning of Kelsen, is not a basic norm. This is not to say that there are no problems for like every intricate theory the Pure Theory has come in for its fair dose of criticisms. Professor Stone was a key critic of Kelsen. He argued that Kelsen distinction between ecstatic and dynamic basic norm represents a distinction between non legal andlegal normative orders.39 Lord Lloyd observes that Kelsen's analysis of the formal structure of law as a hierarchical system of norms and his emphasis on the dynamic character of this process are certainly illuminating and avoid some of the perplexities of the Austinian system. A legal system is not an abstract collection of bloodless categories but a living fabric in a constant state of movement. Kelsen himself recognises that to call the function of a judge as political does not deprive it of its legal quality. There is a great danger that if we take the watch to pieces and analyse each part separately, we shall never attain the overall picture which shows how it works. The most obvious but least mentioned conceptual problem with the Pure Theory is that for a positivist theory that is concerned with the law as it is, it is something of an irony that for all the posturing, the basic norm that validates all other laws and norms should be derived not from law as it is, not from positive law but from, of all places, a non-law or extra-law source. This may at first sound like ―ego‖ criticism but not to be dismissed with a wave of the hand is that it acknowledges the important role played by non-law elements in any legal order but particularly in the validity to be ascribed to positive law. Yet positivists recoil at the suggestion that non-law elements may validate the law. The other conceptual or structural problem is that it appears somewhat contradictory that on the one hand every norm below the basic norm in the hierarchy draws from the fountain of validity of the basic norm and on the other hand that there is a hierarchy with one norm finding validity in the norm directly above it and so on till the 39
H. Kelsen, ―Professor Stone and the Pure theory of Law‖, (1964) Stanford Law Review at 1130.
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Pure Theory of Law basic norm is encountered. It does appear indeed that it has to be one or the other though it has to be admitted that most, if not all the other touted validating norms, whether they be constitutions, give the impression that they harbour this ambivalent characteristic.40 Furthermore, in modern legal systems especially those with a written constitution, the validity of laws are not tested against the standards of the basic norm but against the basic law, which is the constitution. The basic law offers detailed standards of validity as requirement for all laws while the bland and vague declaration of the basic norm can hardly offer such an ascertainable and verifiable standard. There is legitimacy to this argument though the propositions and illustration a little further ahead, of implied positivisation of the basic norm, is bound to derogate a little from it. There is the lack of contemplation for ―non-law‖ factors in seeking to define law. In pointedly ignoring these factors, which may be sociological and historical, it, like its other positivist brethren, bestows unquestioning superiority to form over content and meaning. For instance it is justifiably contended that justice by any stretch of imagination should never be outside the frame of any jurisprudential analysis of law. The concept of the Grundnorm has been assailed as unreal and as merely a thinly veiled Austinian sovereign. The concept of a basic norm behind which no further legal inquiry may be made is considered unacceptable as there are a wide range of complex reasons beyond simply that ―one ought to obey the basic law‖ such as political, social, psychological reasons which Curzon states may be behind the conscious response of citizens to legal duties. Further than Curzon‘s surmise, it is added that those reasons may even be subconscious. For a second dimension to the basic norm problem, how can one evaluate what is sufficient minimum support for the basic norm without an adventure into the so called metaphysical or non-law facts as the political and the sociological? Indeed while one agrees that there should be a basic norm for its validating role, in modern constitutionalism the primacy of position of the Kelsenian basic norm may not be easily rationalised. It still rankles that this non positive concept would assume that role over and above the fundamental law or constitution. Worse, there is the suspicion that the basic norm is not quite as non positive as Kelsen is wont to think or cares to explain. For one reason Kelsen‘s basic norm is 40
Mohammed Enesi Etudaiye, ‗The Pure Theory of law and the fragile new Democracies of the Developing World‘, Commonwealth Law Bulletin Vol. 33, No. 2, 217–242, June 2007, available online at: available online at .
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Pure Theory of Law positivisable by which is meant that the constitution may indeed enact a sanction or varying sanctions for a breach or a variety of breaches of the constitution as the case may be. This is indeed rare but quite possible and plausible. It is suggested that one instance of positivisation of an aspect of the basic norm is the rule regarding the impeachment of the chief executive for gross misconduct41 that would include gross constitutional breaches and a betrayal of the oath of office subscribed to by him under the constitution. Even so jurisprudentially, if not entirely constitutionally, when the courts pronounce certain official acts unconstitutional, it would appear that the court is saying that the defaulting official had disobeyed the constitution he ought to have been obeying and the sanction could be nullifying the effect of that official act. This latter may be referred to as positivisation by implication.42 The criticism has also been made that coercion is overemphasised and that coercion is not the only factor that compels obedience to the law. It has been suggested that, in a wide variety of cases, in fact obedience may be propelled by a feeling of obligation on the part of the subject. While in theory these criticisms appear attractive there are also substantive and substantial questions to be asked. For instance, in spite of the criticisms, it has been nearly impossible for analysts to point out which law forms have been inadvertently excluded from legal systems as a result of his pontifications. Thus the theory, in spite of the criticisms is nearly all encompassing if not entirely so. One is hard pressed to find any such law forms unlike the Imperative Theory, for instance, which hurts its shoulder reaching for excuses to justify including such as custom and delegated legislation within the framework of the theory. Perhaps the most fundamental criticism aimed at the pure theory is that it analyses legal systems inaccurately particularly in one regard – his reference to a ―historically first constitution‖.43
CONCLUSION Hans Kelsen‘s ―Pure Theory‖ is more valid today than it has ever been. H. L. A. Hart described Kelsen as ―the most stimulating writer on analytical jurisprudence of our day‖. Kelsen‘s theory represents a development in two directions. On the one hand, it 41
Section 140 of the Constitution. Supra note 38. 43 Ibid. 42
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Pure Theory of Law marks the most refined development to date of analytical positivism; and on the other, it marks a reaction against different approaches that characterized the opening of the twentieth century.44 Kelsen‘s goal in developing the Pure theory was to make possible a value-free jurisprudence or a ―science of law‖. This jurisprudence would focus on nothing other than ―cognition‖ of the law, that is how exactly ―law is perceived and recognised‖. One must have in mind the fact that principal value of the pure theory of law, first of all, is in that it presents the subject of its study, that is, positive law such as it is, without any unfamiliar additions. It is not only that the methodological doctrine of great heuristic possibilities is in question, but system learning as well that within its investigations ends to embrace the universal legal order interwoven in the composition of which are certain ideas of natural law all contained in many international law documents of general or regional character. J.W Harris remarks that effectiveness conditions validity. How do we measure its effectiveness? ―By two criteria first, is the norm, obeyed; secondly, when disobedience occurs, is the section applied?‖45 We should not look at this as a criticism of the theory but rather as a further explanation of the Pure theory; in that according to the theory norms are always in place so if a particular norm is held to be ineffective there is always another norm to deal with that particular matter which gets its validity from the Grundnorm. Much of the criticism of Kelsen theory lies with the issue of the Grundnorm . Dias identifies several aspects of the Grundnorm; in what sense is the Grundnorm a norm? It does not conform to Kelsen‘s own formulation of a norm; ―if something is to occur they ought to happen‖ it only empowers and does not impose sanctions. It should be remembered that Kelsen argued that this basic norm is valid because it is ―presupposed‖ to be valid because without this pre-supposition, no norm-creating act. If one is to believe this aspect of his theory then you cannot argue that it is not a norm, and Dias fails to recognise this. Stanley Paulson has argued that Kelsen‘s neo-Kantian argument fails as a methodology grounding in the legal sphere because Kelsen does not demonstrate that thisis the only way to understand the validity of law. It is possible for
44 45
R.W.M Dias, Jurisprudence,5th ed. (London, 1985) at 358. M.L.R. Stone, ―Mystique and Mystery in the Basic Norm‖, (1963) Modern Law Review at 37.
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Pure Theory of Law example that in a shared value-system, some notions of justice or morality-underlies validity, in addition to, or instead of reasoning by legal links. 46 However this theory has stood the test of time unlike the Natural law theory, which over the centuries has slowly lost its followers to more practical theories and it is now in its dormant stage. It would appear that because Kelsen‘s Pure theory is logical and related to reality it has retained its validity, Just as the highly practical theory of Max Weber‘s (Weberian methodology).There is surely sense in which the Pure theory does offer something of value for those working in the field of what we now generally call jurisprudence, while its orientation appears to be away from the normative concerns of contemporary jurisprudence. The Pure theory is expansionary, and one of most significant things about theory is that each and every law or ―norm‖ is a consequence of a prior political decision. 47 Thus, the pure theory of law of Hans Kelsen, regardless of its principled negative relation towards the natural law teaching, starting exactly from the attitude that law must be presented such as it is, is forced, whether it wants to or not, also to deal with the study of the corresponding contents of natural law, which in present times under the name ―human rights" make an essential integral part of the existing international law.48 One cannot say that Hans Kelsen was totally wrong in classifying law as pure and impure. HLA Hart, a later positivist, though criticized Kelsen to some extent for the exclusion of ―alien elements‖, derived the rule of recognition from Hans Kelsen‘s Pure Theory of Law. Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm. Further Kelsen‘s pure theory of Law had a far reaching impact on the later positivists like Tony Honoré and Hart. Kelsen made original, striking and valuable contribution to jurisprudence and he considerably influenced the modern legal thought. In the last, the researcher would like to put forth a modern legal example where Pure theory of Law is applicable. The current political turmoil and legal conflict between the judiciary acts the government of Pakistan, has shown a retreat to the decision
46
S.L. Paulson, ―The Neo-Kantian Dimension of Kelsen‘s Pure theory of Law‖, (1992) Oxford Journal of Legal Studies at 311. 47 Ibid. 48 Available at:
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Pure Theory of Law in Jilani ,49 in that the former Chief Justice Chowdary ruled against the former President General Musharraf‘s. Thisdecision had elements of the Pure theory of law‘s Grundnorm , in that he ruled against the government basing this decision as a norm which arose from the Grundnorm constitution.As it was necessary for the rule of law to survive and for a countries survival in theinternational law realm (In this case the British Common wealth which requires certain international requirements to be fulfilled in order for a country to become part of theCommon wealth or risk being removed from it, if it is already part of it).This also highlights Kelsen‘s belief that international law has supremacy over municipal law. Currently Pakistan has been suspended from the commonwealth, becauseof the emergency rule placed by Musharraf in 2007 and his removal of the SupremeCourt judges in 2007.50
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