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    Pure Theory

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    Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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    Pure Theory

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    Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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    Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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    Pure Theory

    Uploaded by

    Anonymous
    Kelsen's Pure Theory of Law proposes that law is a hierarchical system of norms derived from a fundamental norm (grundnorm). It views jurisprudence as a normative rather than empirical science, where legal rules establish how entities ought to behave rather than describing actual behavior. Unlike Austin's positivism, Kelsen's theory rejects any distinction between state and law or between public and private law. It also argues that international law and customary law can be considered valid legal systems. Kelsen aimed to develop a universal theory of law applicable to any legal system.

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    Kelsen's Pure Theory of Law

    Kelsen's Pure Theory of Law is an important theory of Law related to


    Jurisprudence

    Henry Kelsen (1881 - 1973) was a Professor of Law at the University of


    Vienna.
    He propounded the Theory of Law in his essay 'The Pure Theory of Law'
    and contributed it to the Law Quarterly Review in 1934.
    This theory is an improvement of Austin's Positivism Theory
    This theory was further elaborated in 1945 in his 'General Theory of
    Law and State'.

    Postulates of Kelsen
    Law is a norm of action

    Kelsen regards Jurisprudence as a normative science and not a natural


    science.
    In natural sciences, laws are statements of the sequence of cause and
    effect.
    If A is, B is.
    There can be no infraction of such a law, for a single infraction invalidates
    the law.
    Jurisprudence according to Kelsen is a normative science.
    If A is, then B ought to B. Eg: If a person commits a murder, he ought
    to be hanged.
    The law is valid irrespective of consequences.

    'State' is a synonym for the legal order which is nothing


    but a pyramid of norms

    The basic problem in Kelson's Pure Theory of Law is the derivation of norms. The
    question of the criterion of the testing of lawness of these norms exists.

    Kelsen answers this by his hypothesis of 'grundnorm' or fundamental norm or


    basic norm or the base. The Grundnorm is a norm which is not capable of
    deducation from any principles of the science of law. Hence, the grundnorm is
    the fundamental norm and all other norms are derived from grundnorms in a
    hierarchical structure.

    'Purity' of Kelsen' Theory

    Kelsen's Pure Theory of Law attempts to be a consistent theory of law


    applicable to any legal system. He calls it pure because it is universalist and not
    confined to any particular legal system.

    Improvements upon Austin's Positivism Theory


    Austin also proposed the Austinian Theory of Law which is also called Imperative
    or Purely Imperative Theory of Law

    No dualism between State and Law


    Austin: Law is subordinate to the sovereign. Law is the
    personification of the State. Since Law emanates from the sovereign,
    it cannot control the sovereign.
    Kelsen: State is synonym for the legal order. So there is no distinction
    between State and Law.
    Austin: State controls Law
    Kelsen: Law regulates its own creation.
    Law need not be imperative
    Austin: Law is the command of the Sovereign
    Kelsen: Law is not the command of the Sovereign but a hypothetical
    judgement
    No dichtomy between Private Law and Public Law
    International Law may be law strictu sensu
    Customary Law is law strictu sensu

    Criticism
    Lauterpacht's criticism - Primacy of international law over state law is a
    back door entry permitted by Kelsen's theory to natural law.
    Allen's criticism - Sources of law like custom, statute and precedent are
    co-ordinate and do not admit of arrangement in a hierarchical pattern
    adopted by Kelsen.
    Friedmann's criticism - Pure science of law by Kelsen is inadequate from
    point of view of legal theory. The sphere of law is now intersecting spheres
    traditionally allotted to other social sciences like Economics, Psychology
    and Sociology.

    Related Topics
    Normative Jurisprudence
    Locus stadi

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