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Kelsen's Pure Theory of Law Explained

Hans Kelsen was an Austrian jurist who developed the pure theory of law in the early 20th century. The theory holds that (1) law is a normative science separate from other social sciences and morals, (2) law forms a hierarchical pyramid of norms derived ultimately from a basic grundnorm, and (3) the goal is to understand the essential features and reduce chaos in the legal system through a scientific approach. However, critics argue that the grundnorm is vague and it is unclear where it obtains its own validity from.

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390 views16 pages

Kelsen's Pure Theory of Law Explained

Hans Kelsen was an Austrian jurist who developed the pure theory of law in the early 20th century. The theory holds that (1) law is a normative science separate from other social sciences and morals, (2) law forms a hierarchical pyramid of norms derived ultimately from a basic grundnorm, and (3) the goal is to understand the essential features and reduce chaos in the legal system through a scientific approach. However, critics argue that the grundnorm is vague and it is unclear where it obtains its own validity from.

Uploaded by

mansoorsamejo85
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© © All Rights Reserved
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hANS

kELSEN’S
Pure
Theory of
law
Normative
Theory
Hans kELSEN’S Theory

Introduction
Pure theory of Law
Object of the theory
Essentials features of the theory
Criticism
Hans Kelsen (1881-1973)

Introduction :-

Hans Kelsen was an Austrian jurist and philosopher and he


began his long career as a legal theorist at the beginning of 20th
century.
Kelsen’s theory stands at the same level and has a similar importance
to Austin’s theory.
Hans Kelsen (1881-1973)

Introduction :-

 The concept that the law would be pure from any other
investigation such as sociological, political, historical, logical etc.
 The will not based on all those components deprived, connected or
mixed. Thus, according to Kelsen, “the law will stand on it’s
own”.
Hans kELSEN’S Theory

Kelsen’s pure theory of Law :-

1. Law is a normative science :- According to Kelsen, law is a


‘normative science’. But law norms may be distinguished from
science norms. Kelsen does not admit the Command theory of
Austin as it introduces a psychological element into the definition of
law which Kelsen avoids.
Hans kELSEN’S Theory

Kelsen’s pure theory of Law :-

2. Separation of law other social sciences and morals :- Kelsen


limits the scope of jurisprudence by excluding its relation with any
social sciences. He separates law from Politics, Sociology,
Metaphysics and all other extra-legal disciplines.
Hans kELSEN’S Theory

Kelsen’s pure theory of Law :-

3. The Grundnorm :- Kelsen’s pure theory of law is based on


pyramidical structure of hierarchy of norms which derive their
validity from the basic norm which he termed as ‘Grundnorm’.
Hans kELSEN’S Theory

Grundnorm

Norm
Norm
Norm Norm

Norm
Hans kELSEN’S Theory

Constitution

Other
laws H.M.A
Cr.P.C IPC

C.P.C
Hans kELSEN’S Theory

Object :-

Kelsen rejected Austin’s proposal to set up a Superior


authority (Sovereign) as a source and he interpreted the pure
principle which is necessary to achieve the order symmetry in the
legal system. So the source of the law can be traced.
Hans kELSEN’S Theory

Essentials features of Kelsen’ Pure theory :-

1. The aim of a theory of law, as of any science, is to reduce chaos


and multiplicity to unity.
2. Legal theory is science, not volition. It is knowledge of what
the law ‘is’ not of what the law ‘ought to be’.
3. The law is normative not a natural science.
4. Kelsen’s strict separation of law and morality is an integral
part of his pure theory of law.
Hans kELSEN’S Theory

Criticism :-

1. Grundnorm is vague and confusing.

2. Kelsen also said that the law should be kept free from morality.
Whether it is possible to keep the law free of morality?. Kelsen
insisted on the law to be effective and thus he accepted indirectly
morality as a part of effectiveness.
Hans kELSEN’S Theory

Criticism :-

3. Kelsen attempted to change the law into a science, a theory that


could be understood through logic, but on the other hand, he
emphasized the validity of the grundnorm to “assumed”, rather
than based on some “logic”.

4. From where grundnorm takes its validity..

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