Pure Theory of Law

Lecture 7
The Pure Theory of Law
• The idea of a Pure Theory of Law was propounded by the formidable Austrian
jurist and philosopher Hans Kelsen (1881-1973) legal theorist. Worked in
Germany until the rise of the Nazi Party, and then in the USA.
• Kelsen began his long career as a legal theorist at the beginning of the
20th century.
• Kelsen firmly believed that if the law is to be considered as a unique
normative practice, methodological reductionism should be avoided entirely.
• Reductionism should be avoided because the law is a unique phenomenon,
quite separate from morality and nature.
• He published the first edition of The Pure Theory of Law in 1934, and a
second, expanded edition in 1960.
• The theory is ‘pure’ because it separates jurisprudence from other disciplines
like ethics, politics and psychology.
• Different disciplines have different methodology, and so it’s hard to analyse
law when its all mixed up with other things.
• Kelsen’s pure theory allows for a pure ‘legal science.’
• According to Kelsen, the legal system must be “pure” that is, self-supporting and
not dependent on extra legal values.
• The pure theory of law maintains that laws are norms handed down by the state.
• Laws are not defined in terms of history, ethics, sociology, or other external
factors.
• A legal system is an interconnected system of norms, in which coercive
techniques are used to secure compliance.
• The validity of each law, or legal norm, is traced to another legal norm.
• Ultimately, all laws must find their validity in the society’s basic norm known as
grundnorm.
• In the third paragraph of the opening chapter of his book, Kelsen himself gives
the reason for calling his theory as “Pure”.
• He writes: “It is called a ‘pure’ theory of law, because it only describes the law
and attempts to eliminate from the object of this description everything that is not
strictly law; Its aim is to free the science of law from alien elements. This is the
methodological basis of the theory.”
Definition of Law
• Kelsen defined ‘law’ in following two headings.
1. Law: An Order of Human Behaviour “When we compare the objects that have been
designated by the word “law” by different peoples at different times, we see that all these
objects turn out to be ‘orders of human behaviour’
2. Law: A Coercive Order “A second characteristic is that they are ‘coercive orders’
• This means that they react against certain events, regarded as undesirable because detrimental to
society, specially against human behaviour of this kind, with a coercive act; that is to say, by
inflicting on the responsible individual an evil – such as deprivation of life, health, liberty or
economic values – which if necessary, is imposed upon the affected individual even against his
will by the employment of physical force.”
• In simple words, we can say that ‘law’ according to Kelsen is: “Orders of human behaviour that
react against certain events, regarded as detrimental against such orders of human behaviour,
with a coercive act.”
• We begin the idea from Kant’s philosophy that reality can only be understood by humans
through different formal categories of statements.
• Here we are concerned with two categories in particular, which give two different ways
of talking about reality.
• The first category is ‘Descriptive Statements’ (descriptions), which deal with existence,
or Kelsen’s words: “A statement that something is.” An example is ‘the door is closed.’
• The second category is ‘Normative Statements’ (norms), which deal with preference,
“A statement that something ought to be.” An example is ‘the door should be closed.’
• Kelsen’s description of these categories highlights the words ‘is’ and ‘ought.’
• I don’t like this, because it confuses the meaning of a sentence with the particular
language used to express it.
• It is important to keep in mind the distinction between norms and descriptions.
• The norm ‘Thief should be punished’ is different from ‘Thief will be punished,’ or ‘The
policeman thinks thief should be punished,’ or ‘The Criminal Code says thief should be
punished,’ all of which are descriptions.
Source of Validity – The Basic Norm (Grundnorm)
• Under Kelsen’s theory, no norm is objectively valid. The ‘source’ of validity therefore must be a norm
that is assumed to be valid.
• Kelsen formalises this assumption through a new object: the basic norm or Grundnorm.
• The Grundnorm is not a legal norm, it is instead a norm that is assumed to be valid by the legal scientist
examining the legal system.
• A legal norm is then any norm derived from this Grundnorm.
• A Grundnorm refers to a specific constitution or other source of law. For example, the Australian legal
system’s Grundnorm is “One ought to obey the Australian Constitution.”
• An analogy can be made with science: if we want to say any valid statements about reality, we need to
start with something we assume to be valid. Such assumed statements could “experience corresponds to
reality” or “things will continue to behave the same way as they have in the past.”
• Kelsen assumes, however, that the scientific representation of a positive-legal order, as a hierarchy of
legal propositions, must have a guarantor of unity.
• This guarantor cannot be other than a component of the representation, hence legal proposition. Being a
legal proposition, it counts as a representation of an actual norm.
• So Kelsen calls it, elliptically, a 'basic norm (Grundnorm), A basic norm is 'presupposed' in legal science
for each order of positive law, to make it possible to understand that material as an order of positive law.
• This norm is simply that 'the historically first constitution is to be obeyed'. That constitution may have
become established by custom or by revolution.
• In relation to this, the pure law theory takes only into consideration only the norms
created by the acts of human beings, not norms which come from other
superhuman authorities.
• Central to the Pure Theory of Law is the notion of a “basic norm ” – The
Grundnorm - a hypothetical norm, presupposed by the jurist, from which in a
hierarchy all ‘ lower ’norms in a legal system, beginning with constitutional
law, are understood to derive their authority or ‘bindingness’.
• In this way, Kelsen contends, the bindingness of legal norms, their specifically
‘legal’ character, can be best understood without tracing it ultimately to some
supra human source such as God, personified Nature or - of great importance in
his time - a personified State or Nation.
Law as a System of Sanction-Prescribing Norms
• Kelsen’s definition of a legal system, which I shall call ‘Kelsenian law’ is a system of norms
that prescribe sanctions.
• A sanction is a punishment or reward that follows from a condition; an example of a sanction-
prescribing norm is ‘A thief should be imprisoned.’
• A ‘delict’ is an action that is prohibited by the law. An action is a delict if there is a sanction in
place to discourage people from committing that action.
• Not all conditions for sanctions are delicts: for example, the sanction of forced quarantine may
be imposed after illness. It follows that delicts are never directly prohibited, but rather are made
the conditions of sanctions – there is no law that says “Do not steal,” only a law that says
“Thieves should be imprisoned.”
• Be aware of the distinction between ‘Thieves should be imprisoned’ and ‘Thieves will be
imprisoned’ – the latter is a not a norm but a description, and therefore is not Kelsenian law.
• It is instead a description of what actually happens. It could be false, and the law would still be
a law (e.g. if the thief was not caught)
• A legal system includes general norms such as “Thieves should be imprisoned”, but also
specific norms such as ‘This man should be imprisoned.’ A norm with specific application is
still a Kelsenian law.
Dependent Norms
• An independent legal norm is a norm that prescribes a sanction, e.g. ‘This man should be
imprisoned.’
• A dependent legal norm is a legal norm that does not itself prescribe a sanction, but is
connected to a legal norm that does. For example, the norm ‘This judge is authorised to hear
cases’ is valid only insofar as that judge can prescribe/dismiss sanctions, or make decisions that
ultimately lead to sanctions
• If a norm is not connected to a sanction-prescribing norm, then it is not a Kelsenian law.
• Such a norm is instead a moral or social norm posited by a legal organ who is not exercising
their legal capacity
• A licence to drive can be described as “If (1) a person drives, and (2) they have no licence, then
they should be punished.”
• A law that authorises a judge to preside over a theft case: “If (1) a person is found to have
stolen by a judge, and (2) that judge was authorised to preside over the case, then that person
should be punished.”
• A contract to pay £100 in return for a service: “If (1) a person does not pay £100, and (2) that
person was required to do so by a legal contract, then that person should be punished.”
• The Constitution, as applied to theft: “If (1) a person has stolen, and (2) all laws relating to this
case were created in accordance with the Constitution, then that person should be punished.”
Validity
• A taxman, backed up by the State, and a robber backed up by a gun, both demand your money.
• Both men’s actions have the normative meaning “Give this man your money,” and both of these
norms are backed by sanctions.
• We want a definition of law such that the former is law, and the latter is not.
• We can do this by asking which of these two norms is valid. The norm “Give the taxman your
money” can be derived from a series of higher norms:
• Obey the constitution:
• Obey laws passed by the legislature
• Obey tax law
• Obey the tax office and its decisions
• Obey the taxman’s authority
• Give the taxman your money
• If a norm is valid, any norm derived from that norm by imputation will also be valid.
• The taxman’s norm will be valid under this system, while the robber’s will not.
• A legal system is therefore a system of coercive, valid norms.
Effectiveness
• In order to qualify as a valid legal system, a norm must also be ‘by and large effective’, i.e. the
norm must be obeyed most of the time.
• This means that a legal theorist’s choice of Grundnorm is not arbitrary - we have to choose
the Grundnorm that gives validity to the actually effective legal system.
• We can’t assume that the Grundnorm is ‘Obey Hugh’ because society does not follow this.
• This is especially important during a revolution - if the old legal order ceases to be effective,
either because of a hostile takeover, or just because people stop following the law, then there
will be a new legal system and a new Grundnorm.
• Effectiveness is both imprecise and impure (in terms of the Pure theory)
• Kelsen does not explain how to determine whether a norm is effective, and such a process
would need to answer various non-legal questions, such as:
• Are some laws more ‘serious’ than others, i.e. is it more important that the law of murder be
obeyed than the law of theft?
• If we want to determine whether the law against speeding is effective with respect to a
particular citizen, do we need to take into account how often she/he drives? What about their
moral attitude towards speeding?
• Effectiveness lies on a spectrum – where do we draw the line?
• Effectiveness is looking like a necessary impurity in Kelsen’s theory.
Legal Decisions
• A law is valid if it was derived from a higher norm. But how does a legal scientist
determine whether this derivation was legitimate?
• Under Kelsen’s system, there is no objectively right or wrong way to derive a norm from
a higher norm, just as there are no objectively valid norms in the first place.
• All we care about is a legal norm’s validity, and here, the source of validity is whether
the person who derived the legal norm was authorised to do so.
• Therefore, every derivation made by an authorised legal organ is automatically valid.
• A legal scientist can describe the possible interpretations of a particular law, or the
relationships between laws, but they cannot decide which derivation is ‘correct’ – that
decision is entirely up to the judge.
• It seems to me that there is some wiggle room here, to prevent extreme cases. For
example, what if a corrupt judge claims to derive the norm ‘give me money’ from tax
law? In this case, the legal theorist could argue that the decision is so unreasonable that it
is not derived from the higher norm at all.
• The corrupt judge’s decision is either invalid and no different from a robbery, or derived
from a more general norm of the form ‘This legal organ may posit new norms.’
• For example, if a judge finds a person guilty of murder who was in fact innocent, the judge’s decision is still valid
because the judge was authorised to make that decision.
• Similarly, if the legislature passes an unconstitutional statute, the statute is still valid unless and until it is
repealed.
• This means that if a decision cannot be appealed, the organ which makes that decision has ultimate legal
authority. They can flout the constitution or any other law they choose, and their decision will still be valid.
• The only considerations that prevent such an organ from disrupting the law this way are non-legal ones, such as
the organ’s morality or the organ’s fear of losing office.
• This also means that a legal organ’s thinking process, reasoning and arguments behind a decision are not part of
legal science.
• Kelsen admits that these factors are legal in nature, but they instead belong to a different discipline called ‘legal
politics’.
• Generally, Law is, a system of rules and regulations which are enforced through social institutions to govern
human behaviour; although the term "law" has no universally accepted definition.
• Laws can be made by legislatures through legislation resulting in statutes, the executive through decrees and
regulations, or judges through binding precedents.
• The formation of laws themselves may be influenced by a constitution and the rights encoded therein. The law
shapes politics, economics and society in various ways and serves as a mediator of relations between people.
• Legal theorists, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and
of legal institutions.
Salient features of Kelsen’s Pure Theory of Law
• 1. Law as Science Kelsen tried to present a theory that could be attempted to convert law into a science, a theory
that could be understood through logic.
• 2. As a Positive Law In the first paragraph of Pure Theory of Law , Kelsen introduces his theory as being a theory
of positive law. This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which start
from a Basic Norm, i.e. ‘Grundnorm’ where all other norms are related to each other by either being inferior
norms.
• 3. Law “As it is” Kelsen emphasized that analysis must focus on law as‘ it is’ actually laid down, and not as‘ it
ought to be’.
• 4. Law Contains set of Rules: Kelsen emphasized that the Law contains mass of rules, and a theory should
organize them in an ordered pattern.
• 5. Law and Morality: Kelsen's strict separation of law and morality, is an integral part of his presentation of the
Pure Theory of Law. The application of the law, in order to be protected from moral influence or political
influence, needed to be safeguarded by its separation from the sphere of conventional moral influence or political
influence. Kelsen did not deny that moral discussion was still possible and even to be encouraged in the
sociological domain of inter-subjective activity. However, the Pure Theory of Law was not to be subject to such
influences.
• 6. Theory of Law should be Uniform: According to Kelsen, the theory of law should be applicable at all times
and all places.
• 7. Law is ‘Ought’ Proposition: A norm is a proposition or an if statement: “If A happens, then B is ought to
happen.” Thus: “If someone commits a theft, the judge ought to punish him.” A legal system is composed of series
of such norms.
8. Static Aspect of Law: Kelsen distinguished the static theory of law from the
dynamic theory of law. The static theory of law represented the law as a hierarchy
of laws where the individual laws were related the one to the other as either being
inferior, the one to the other, or superior with respect to each other.
9. Dynamic State of Law: Kelsen discussed the dynamic theory of law. In the
dynamic theory of law, the static theory of law comes into direct contact with the
governmental administration of the state which must recognize the function of the
legislature in the writing of new law.
At the same time there is also the understanding of law as being affected by the
accumulated standing law which represents the decisions of the courts which in
principle become part of the hierarchical representation of the pure theory of law.
Importantly, Kelsen allows for the legislative process to recognize the law as the
product of political and ethical debate which is the product of the activity of the
legislature before it becomes part of the domain of the static theory of law.
Critical Analysis
1. Kelsen’s theory points out that the Grundnorm is presupposition that the constitution ought to be
obeyed. The constitution of a country is a sociological, political document and so the Grundnorm is not
pure.
2. Kelsen also pointed out that law should be kept free from morality. A general question should be raised
here, whether is it possible to keep law free from morality? Kelsen made emphasis in the effective of law
and by this way he indirectly accepted the morality as a part of effectiveness.
3. Kelsen attempted to convert law into a science, a theory that could be understood through logic, but on
the other hand he insisted on the validity of the grundnorm to be “assumed”, rather than based upon some
“logic”.
4. Kelsen attempted to locate law and legal norms in a middle realm between absolute moral values and
social facts. Hence, the denial of the relevance of moral considerations makes legal science sterile
and useless, and the denial of the factual nature of law disconnects it from reality.
• For Kelsen as for other Central European contemporaries, norms occur not singly but in sets, termed
'orders’.
• The ordering principle of an order of moral norms, and of an order of natural law, if one could exist-
wold be logical, as deduction.
• From the general norm 'do not kill other human being, it follows deductively that A must not he
maintains, is not, or not centrally, like a 'static order.
• An order of positive law. 'dynamic', in that its ordering principle is authorisation. Each relatively 'higher'
norm authorises someone (an individual or an organ, primarily of the state) to create further and
relatively 'lower' norms
Law and Morals in the Pure Theory of Law
• Kelsen's strict separation of law and morals was an integral part of his presentation of the
pure theory of law.
• The application of the law, in order to be protected from moral influence or political
influence, needed to be safeguarded by its separation from the sphere of conventional
moral influence or political influence.
• Kelsen did not deny that moral discussion was still possible and even to be encouraged
in the sociological domain of intersubjective activity.
• However, the static operation of the pure theory of law was not to be subject to such
influences as presented by Kelsen in Chapter Two of the second edition of this book.
• For Kelsen, in Chapter three of Pure Theory of Law, law was defined as the application
of norms to its function for the state.
• Science was generally the domain of the causal understanding of epistemological data
and its primary logical and causally oriented technique was to be distinguished from the
normative reasoning as was to be found in the pure theory of law
• The precise question before the Supreme Court was whether the High Courts had
jurisdiction under Article 98 of the Constitution of Pakistan (1962) to enquire into the
validity of detention under the Martial Law Regulation No.78 of 1971 in view of the
barcreated by the provisions of the Jurisdiction of Courts (Removal of Doubts) Order,
1969.
• The further question was whether the doctrine enunciated in the case of State v.
Dosso PLD 1958 SC 533 was correct.
• Held, that in laying down a novel juristic principle of such far reaching importance
the Chief Justice in the case of State v. Dosso proceeded on the basis of certain
assumptions, namely :-
• (1) “That the basic doctrines of legal positism”, which he was accepting, were such
firmly and universally accepted doctrines that “the whole science of modern
jurisprudence” rested upon them;
• (2) that any “abrupt political change not within the contemplation of the
Constitution” constitutes a revolution, no matter how temporary or transitory the
change, if no one has taken any step to oppose it; and
• (3) that the rule of international law with regard to the recognition of States can
determine the validity also of the States’ internal sovereignty.
• These assumptions were not justified theory was by no means, a universally
accepted theory nor was it a theory which could claim to have become a
basic doctrine of the science of modern jurisprudence, nor did Kelsen ever
attempt to formulate any theory which “favours totalitarianism”.
• He was propounding a theory of law as a “mere jurists’ proposition about
law”. He was not attempting to lay down any legal norm or legal norms
which are “the daily concerns of Judges, legal practitioners or
administrators”.
• Kelsen in his attempt to evolve a pure science of law as distinguished from
a natural science attached the greatest importance to a keeping law and
might apart.
• He did not lay down the proposition that the command of the person in
authority is a source of law.
• Kelsen’s attempt to justify the principle of effectiveness from the standpoint
of international law cannot also be justified, for, it assumes “the primacy of
international law over national law”.
• https://pakistanconstitutionlaw.com/pld-1972-sc-139-2/
Grundnorm for Pakistani legal system
• Pakistan has its own Grundnorm
• Law giver is Allah SWT
• Law is Quran & Sunah
• Objective Resolution
The norms of French law are valid only in France, the
norms of Pakistani law are valid only in Pakistan.
PAKISTAN AND KELSON’S THEORY
• Kelsen theory was a hot debate in the early history of
Pakistani judiciary
• It was discussed with the reference of Martial law regulation
in Pakistan by political leaders and military officers and
abrogation of the constitution.
• State v Dosso 1958, the court relied explicitly on Kelsen’s
work
• Asma Jilani v The Government of the Punjab 1972SC 139 ,
the theory had no application on the facts
• Held, that in laying down a novel juristic principle of such far reaching
importance the Chief Justice in the case of State v. Dosso proceeded
on the basis of certain assumptions, namely :-
• (1) “That the basic doctrines of legal positism”, which he was
accepting, were such firmly and universally accepted doctrines that
“the whole science of modern jurisprudence” rested upon them;
• (2) that any “abrupt political change not within the contemplation of
the Constitution” constitutes a revolution, no matter how temporary or
transitory the change, if no one has taken any step to oppose it; and
• (3) that the rule of international law with regard to the recognition of
States can determine the validity also of the States’ internal
sovereignty.
Flaws Of The Theory
Scope
• Absence of morality
• Cannot be binding upon • Not universally accepted approach
the other laws
• Can be challenged at any time
• Abrupt change cannot be
judge through an abstract • Inconsistent
idea • Cannot compete with international
• There are conflicts standards
between norms of
different laws
• Efficacy of legal system
can not be measured by a
theory
Analysis
• The Kelsenian theory received serious criticism Is an abstract idea. A
single theory cannot dominate over all legal systems of the world.
• Theory’s Grundnorm itself is ambiguous.
• It is only a fiction and can be applicable on imagery of fiction.
• It has narrow scope.
• Law itself is morality which is refuted by the theory.
• Law is connected with all other sciences.
• Every society has its own legal system and social standards
• A theory itself is an abstract idea that comes from a human mind.
Theories are made in order to govern or to guide a man to live their
lives in a lawful manner but these are not self alone able to run a legal
system because there is only one lawgiver who has the power to create
laws for the humanity.
Conclusion
• Hans Kelsen, one of the most influential legal philosophers of the last century has
contributed to the answering of certain fundamental questions about law. The first of
these is the relation of law to theories of what the law should be, on the one hand, and to
the institutions, practices and mores of its society, on the other.
• The second aspect in Kelsen’s theory is that the whole system is interconnected with
each other in the form of a hierarchy of norms, and there is a basic norm which stands at
the top of this hierarchy called the grundnorm, which is of the highest order, and the
validity of this grundnorm is to be ‘supposed’.
• All other norms derive their validity from this grundnorm, and no one can question the
validity of this grundnorm.
• Another aspect of Kelsen’s theory is that it presents us with a dynamic legal order rather
than a merely static one.
• The law tends to be orderly through maintaining consistency between its various parts,
through the broadening and simplifying of principles and conceptual compartments and,
in short, through tending to become a logical system, a perfect and complete logical
system.
• Like Austin, Kelson divested moral, ideal or ethical elements from law and wished to create a ‘pure’
science of law devoid of all moral and sociological consolations.
• He rejected Austin’s definition of law as a command because it introduces subjective considerations
whereas he wanted legal theory to be objective.
• Likewise, he also discards the, notion of justice as an essential element of law because many laws,
though not just, may still continue as law.
• He defines ‘science’ as a system of knowledge or a ‘totality of congnitions.’ systematically arranged
according to logical principles.
• According to Kelsen, law is not the only system of norms that seeks to regulate human behaviour:
morality and religion have the same objective.
• But neither morality nor religion have the sanction of physical coercion if a moral or religious norm is
violated.
• Moral norms, such as "thou shalt not steal," typically include no sanctions for immoral behaviour, but
merely forbid it.
• Immoral behaviour may result in social disapproval and ostracism, but such sanction is neither
included in the concept of a moral norm nor socially organized.
• As for religion, its norms are more closely related to the structure of legal norms, because religious
norms hold out the sanctions of rewards and punishments in the hereafter.
• The coercion threatened by religious norms is therefore transcendental, and its efficacy depends on
whether the person who violates them believes in God and punishments meted out in the hereafter
“A single test which proves some piece of theory wrong is more valuable than a hundred tests showing that
idea might be true.” (ARTHUR C. CLARKE, the Light of Other Days)
• His theory is not universally accepted
• Criticised on sociological factors of morality and justice – effectiveness of political change as the sole
condition of its legality
• Kelsen aimed that the pure theory should be free from the influence of history, sociology, politics and
religion.
• Kelsen says the Grundnorm can be a constitution. The Martial Law should be accepted by the
constitution.
• Martial law is revolution and the acceptance of this change shows authority of Grundnorm
• Theory is not internationally accepted
• Kelsen is failed to provide a standard for all legal systems
• Every legal system has its own basic norm
• Every legal system works within a specific society
• Kelsen theory was a hot debate in the early history of Pakistani judiciary
• It was discussed with the reference of Martial law regulation in Pakistan by political leaders and military
officers and abrogation of the constitution.
• State v Dosso 1958, the court relied explicitly on Kelsen’s work
• Asma Jilani v The Government of the Punjab 1972SC 139 , the theory had no application on the facts