PURE THEORY OF LAW
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| HANS KELSEN |
Before jumping into pure theory of law it is wiser to know a little about Hans Kelsen.
Hans Kelsen was born in 11-October-1881 in Austria. He was preeminent jurist of 20th century, he was also the author of Austrian Constitution but he moved to Germany where he was forced to leave his university post and then finally moved to the United States of America.
Some of his notable works of Kelsen includes International law and Pure Theory of Law.
He wrote Reine Rechtslehre commonly known as pure theory of law in two editions-
- Edition 1st was published in 1934 while he was in exile in Geneva
- Edition 2nd was the expanded version and he wrote it after his retirement from University of California.
INTRODUCTION
The pure theory of law is known by various name some them are the Vienna school of legal thoughts or Grund norm theory etc. this theory was explained for the first time in 1911 but it became popular after 1st World War. He rejected the idea of natural law theory and his theory was very much related to Austin's imperative theory (law is the command of the sovereign backed by the sanctions ) and he called sanctions as norms. According to him the theories of law were impure as they drew upon from various fields like history, sociology, politics etc. and his theory was solely based on that part of knowledge which deals with laws, therefore, his theory is known as Pure Theory. Kelsen, like Austin was a positivist, in that he focused his
attention on what the law was and divested moral, ideal or ethical elements from law.
PURE THEORY OF LAW
"Law is a normative science; Law norms are 'ought' norms".
NORMATIVE SCIENCE -
According to Kelsen law is normative science distinguished from natural science which is based on cause and effect relationship or what law is (SEIN ) ,example- Newtons law of gravitational force, while according to him the law is ought to be (SOLLEN), example - if one murders then he must be punished accordingly. Like Austin, he also considered sanctions as an essential element of law but he preferred to call it 'norms' and stated 'law is a primary norm which stipulates sanction'. his theory was based on Grund norms.
GRUND NORM-
Kelson pure theory of law is a pyramidal hierarchy of norm having sanctions these sanction were knows as Grund norm or the basic norm and each norm gets its validity from the Grund norm ,example- in India, the Constitution of India is the Grund norm other laws like Company Act, Evidence Act, Indian Penal Code etc. are its subordinate laws.
Essentials OF KELSENS'S THEORY
Essentials OF KELSENS'S THEORY
- the main aim of his theory was to remove chaos and diversity and bring uniformity
- law is normative science and not natural science
- separation of law and morality
- legal theory is science , not violation. it is the knowledge of what law is not what it ought to be.
CRITICISM
- His Grund norm is vague and confusing as It is difficult to trace ‘Grund norm’ in every legal system. Also, there is no standard rule to measure the effectiveness of Grund norm.
- The Pure Theory also did not give the timeframe for which the effectiveness should hold for the requirement of validity to be satisfied.
- Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyses the Grund norm.
- International law is the weakest point of Kelsen’s Pure theory. He advocated a monist view of the relationship between international and municipal law .
- He ignored natural law
- His theory has no practical implications
CONCLUSION
Hans Kelsen's Pure theory of law not only bought a new revolution with adoption of Grund norm but it also solved many basic question of law like law and morality are separate, what law should be, difference between normative science and natural science.
REFRENSES
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