HANS KELSEN was another jurist who was given the credit of reviving the original analytical legal thought in the 20th Century through his "Pure Theory of Law". Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which with amendments is still in operation.
Pure Theory of Law (German: Reine Rechtslehre) is a book first published in 1934 and in a greatly expanded "second edition" (effectively a new book) in 1960.
THEORY OF PURE SCIENCE OF LAW
Kelson did not favour the widening scope of jurisprudence by correlating it with all social sciences and rigorously insisted on the separation of law from politics, sociology, metaphysics and all other extra-legal disciplines.
It is often said that Kelsen's Pure Theory of Law tried to rescue jurisprudence from vague mysticism, and thus it was a revival of Austin's 19th Century Analytical Jurisprudence. Similar to Austin, Kelsen divested moral, ideal or ethical elements from Law, and wished to create a pure science of law devoid of all moral and sociological considerations.
However, Kelsen rejected Austin's definition of Law as a command because it introduced subjective considerations, whereas he wanted legal theory to be objective. He also considered the notion of justice as an essential element of law, because many laws, though not just, may continue as Law.
Kelsen defined 'SCIENCE' as- A system of knowledge, or a totality of cognitions, systematically arranged to logical principles.
Kelsen's GRUNDNORM theory is analogous to Austin's concept of the sovereign without which law cannot be obligatory and binding. Thus, Kelsen's Pure Theory of Law is a theory of positive law based on normative order eliminating all extra-legal and non-legal elements from it. Kelsen believed that- a theory of law should be uniform.
Kelsen's theory of Pure Science of Law, which is also known as the "Theory of Interpretations", was a reaction against the vicious ideology which was corrupting the legal theory and jurisprudence of a totalitarian state.
Kelsen claimed that his pure theory of law applied to all places and at all times. Kelsen did not deny the value of non-legal and extra-legal branches of knowledge but only wanted the law should be separate and clear of them.
LAW AS A NORMATIVE SCIENCE
Kelsen defined law as- "the depsycholised command, and described it as Normative science, as distinct from natural sciences, which are based on cause and effect, such as law of gravitation."
The laws of natural sciences are capable of being accurately described, determined, and discovered in the form of "IS" (Das sein) which is an essential characteristic of natural sciences. But the science of Law is knowledge of what law OUGHT TO BE (Das Sollen). It is the ought character which provides normative character to law.
Kelsen also considers sanction as an important element of the law, but he prefers to call it "NORM". Therefore according to Kelsen, Law is a primary norm which stipulates sanction." It is called "Positive" Law because it is only concerned with actuals and not ideals.
Dr Allen has described Kelsenite's Theory of Law as a - structural analysis as exact as possible of positive law- an analysis free of all ethical or political judgements or values.
According to KELSEN- Norm or Sanction is a rule for forbidding or prescribing a certain behaviour. He believed that legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprise legal order. He distinguishes moral norm with legal norm.
Pure Theory of Law- GRUNDNORMS
Kelsen's pure theory of law is based on the pyramidical structure of the hierarchy of norms which derives their validity from the basic norm, which has been termed as "Grundnorm".
Thus, the basic norm or Grundnorm determines the context and gives validity to other norms derived from it. Kelson was unable to answer the questions regarding the origins of Grundnorm's validity. He considers it to be a meta-legal question, into which the jurists need not intrude.
Commenting on this point, Julius Stone has rightly observed that just as Austin's SOVEREIGN in a particular society is a mere starting point for his legal theory, similarly a Basic Norm has to be considered the hypothetical starting point or fiction, which gives any legal system a sense of coherence and a systematic form.
Hence, while all norms derive their validity from the Grundnorm or the basic norm, the validity of the basic norm itself cannot be objectively tested, instead, it has to be presumed or pre-supposed.
#Kelsen however considered Grudnorm to be a fictional concept rather than a hypothesis.
In the late 20th and early 21st Century, when the Pakistan Military General Parvez Musharraf, took forceful control of the Government by a coup and thus undermined the existing Grundnorm of the nation, and the laws derived therefrom.
The above instance shows that Kelsenian Grundnorm, during any revolutionary changes has to be determined by the under-current political changes, and certain extra-legal expediency in the context of prevailing circumstances and modified conditions.
Kelsen recognised that Grundnorm need not be in every legal order (State), but it must necessarily be there. It may be in the form of a written document, such as a constitution or even the will of the dictator.
SALIENT FEATURES OF THE THEORY
This theory was aimed at reducing the chaos and confusion created by the supporters of natural law theory.
The pure theory of law deals with the knowledge of what law actually is, and it is not concerned with what law ought to be.
The theory considers law as a normative science and not as a natural science.
Kelsen's theory of law is a theory concerned with Norms, and not the effectiveness of legal norms.
It is a formal theory confined to a particular system of positive law as actually in operation.
IMPLICATIONS (effects) OF THE THEORY
This theory covers a wide spectrum of legal concepts such as State, Sovereignty, public and private law, legal personality, rights and duty and so on. According to Kelsen, law and state are not different, but they are in fact one and the same.
Likewise, there is no difference between public and private law. Kelson also denied any difference between natural and juristic personality.
For Kelsen, all legal personality is artificial and derives its validity from Grundnorm. He does not believe in the existence of individual rights and asserts that "legal duties" are the essence of the law. In his view, a legal right is merely a duty as viewed by the person entitled to its fulfilment.
CRITICISMS OF THE THEORY
Several jurists have registered their negatory views against Kelsen's Pure Theory of Law as well as the Grudnorm theory, some of which have been summarised into the following points-
Excludes all reference to social facts and needs of society, and therefore the theory has been found lacking in sociological foundation.
Kelsen's assertion that all norms except Grundnorm are not pure has no legal basis, because if Grundnorm itself is a hypothesis or fiction, then other norms having their basis on Grundnorm have no ground.
The theory only offers hypothetical considerations without any practicality or applicability.
According to FRIEDMANN, Kelsen's theory of law provides no solutions for ideological differences, which was an important cursor for legal norms at such time, and even now.
Kelsen in his theory, has not appropriately accounted for legal dynamics in regards to the application or implication of his theory.
Kelsen's normative system of being one-sided remains indifferent to the context of norms.