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Kelson Theory

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49 views3 pages

Kelson Theory

kelson

Uploaded by

H2O
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Introduction

Hans Kelsen, a renowned Austrian lawyer, and philosopher proposed the concept
of Pure Theory of Law. At the turn of the twentieth century, Kelsen began his long
career as a legal thinker. Traditional legal philosophies were hopelessly tainted,
according to Kelsen, with political ideology and moralising on the one hand, and
efforts to reduce the law to natural or social sciences on the other. Both of these
reductionist initiatives were proven to be substantially defective by him. Instead,
Kelsen proposed a ‘pure’ philosophy of law that avoided any reductionism.
Kelsen’s argument claims that when natural law contains aspects of politics,
sociology, or other factors, there is no need to explain it. He felt that any potential
of morality, sociology or any other factor should be removed from understanding
the pure or natural law. As a result, the theory is known as the Pure Theory of
Law.

Main principles under Pure Theory of Law


Law as a normative science
Law is a ‘normative science,’ according to Kelsen, yet legal norms can be separated
from scientific norms. ‘Science,’ according to Kelsen, is a form of knowledge
organised around logical principles. A norm, according to Kelsen, is a rule that
prescribes a specific behaviour. He makes a distinction between legal and moral
rules. He said that a moral standard just states “what a person should do or not
do,” but a legal norm states that if a person violates the norm, he would be
penalised by the state. Law is distinguished from politics, sociology, philosophy,
and all other non-legal sciences, according to him. According to Kelsen, an
appropriate theory of law must be pure, that is, logically self-contained and
therefore not reliant on extra-legal values, natural law, or any other external
source (such as the sociological, political, economic, or historical influence of law).
The Command Theory of Austin is not accepted by Kelsen because it incorporates
a psychological aspect into the concept of law, which Kelsen rejects. Kelsen
proposes that the law be described as a Depsycholised command. Kelsen
considers ‘sanction’ to be an important part of the law, but prefers to refer to it as
‘norm.’ Kelsen’s philosophy of law is devoid of any ethical or political ideals or
judgments.
Grundnorm
Kelsen’s pure theory of law features a pyramidal hierarchy based on the
grundnorm as the foundational norm. Grundnorm is a German term that means
“fundamental norm.” He defines it as “the assumed ultimate rule by which the
norms of this order are constituted and annulled, and their validity is received or
lost.” The grundnorm establishes the content and verifies additional norms that
are derived from it. But whence it gets its legitimacy was a question Kelsen
refused to address, claiming it to be a metaphysical one. Kelsen suggested
Grundnorm is a work of fiction and not a hypothesis.According to Kelsen, unlike
some of the other norms, the basic norm cannot be explained by referring to
certain other or more validating laws. Instead, it may draw its legitimacy from the
fact that it has been recognised, acknowledged, and accepted by a significant
number of people inside the political unit. The Grundnorm is the beginning point
for a legal system, and it is from this point that a legal system grows more complex
and specialised as it evolves. This is a fluid situation. The grundnorm, which is
self-contained, is at the summit of the pyramid. In a hierarchical structure,
subordinate standards are governed by norms that are superior to them. The
system of norms progresses from downwards to upwards and finally closes at
grundnorm.
Hierarchy of Norms
A legal order, according to Kelsen, is made up of norms arranged in a hierarchical
sequence, with one norm positioned above another and each norm getting its
validity from the norm above it. The legal order is symbolised by the hierarchy,
which takes the shape of a pyramid. As a result, the last level is the greatest norm,
known as the fundamental norm or Grund Norm, emerges, which serves as the
foundation for all future norms. The Grund norm is the cornerstone of Kelsen’s
ideology. The Grund norm can be used to determine the legality or validity of any
norm. The Grund norm’s validity cannot be objectively assessed. The Grund norm
serves as a common reference point for the validity of the positive legal order, or
all of the legal system’s norms. The Grund norm must be effective, that is, it must
be followed by the general public. The validity of the Grund standard is referred to
as efficacy.
Validity of Norms
The term “validity” refers to the existence of a given standard. It also refers to the
fact that a norm is legally obligatory and that an individual must follow the norm’s
instructions.
The following two postulates are stated by Kelsen:
 Every two norms that derive their validity from the same fundamental
standard are part of the same legal system.
 The legitimacy of all legal norms in a particular legal system is ultimately
derived from one basic standard.
Norms lose their validity not only when they are declared invalid by the
Constitution, but also when the entire order is rendered ineffective. Norms must
be accepted by a large number of people. As a result, validity entails higher-level
legal approval and a minimum level of efficacy. ‘The legitimacy of every single
standard of the order is contingent on the efficacy of the entire legal order.’ Each
standard in the system depends on the validity of a higher norm.
Sanctions
Kelsen uses sanctions to emphasise the law’s coercive aspect. Because it brings a
psychological aspect into a theory of law, Kelsen rejects Austin’s interpretation of
sanction, which views it as a mandate from the Sovereign. As a result, he favours
Grundnorm, which gives legislation legitimacy. Its authoritative character lends
credibility to any legal system. The Grundnorm’s sanctioning authority makes it
applicable to all other laws. According to Kelsen’s study of the sanctioned view of
the law, legal norms are articulated in the form that if a person does not follow a
certain ban, the courts must impose a punishment, whether criminal or civil.

Conclusion
In short, the Pure Theory of Law by Hans Kelsen is a way to understand law
systematically without mixing in moral or political ideas. It's based on the idea of a
hierarchy of norms, where each law follows a higher one. But it's also
controversial because it leaves out morals and politics. The main weakness of
Kelsen's theory is the Grundnorm which is based on unproved hypothesis.

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