PURE THEORY OF LAW KELSEN PDF
The Pure Theory of Law and Analytical Jurisprudence. Author(s): Hans Kelsen. Source: Harvard Law Review, Vol. 55, No. 1 (Nov., ), pp. Published. Kelsen's Pure Theory of Law Introduction Generally, Law is, a system of rules and regulations which are enforced through social institutions to govern human. Hans Kelsen Pure Theory of Law Introduction Hans Kelsen was born in Prague on the 11th October Kelsen studied law in Vienna taking his doctorate in.
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Hans Kelsen and His Pure Theory of Law. Edwin W. Patterson. Follow this and additional works at: wildlifeprotection.info PDF | Hans Kelsen's Pure Theory of Law is the most prominent and influential legal theory for continental law systems. Kelsen's book contains only text – neither. a coercive order the Pure Theory of Law conceives of the law as a spe- cific social Kelsen, The Law as a Specific Social Technique, 9 U. OF CHr. L. REv.
Such conformity is due to popular support not mere tacit submission to coercion 4. The regime must not be oppressive or undemocratic Criticism of the pure theory Australian jurist Julius Stone writes that since the basic norm itself is obviously most impure, the very purity of the subsequent operations must reproduce that originality impurity in the inferior norm. Some also criticize the pure theory because it excluded and separated natural law from law. Former member of the United Nations' International Law Commission and Judge of the International Court of Justice, Sir Lauterpacht, said that the primacy of international law over state law is a back door entry permitted by Kelsen's theory to natural law.
American jurist Allen criticizes that 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 is that the 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. Critiques also state that a single theory cannot dominate over all legal systems of the world. The pure theory cannot be binding upon all legal systems because every legal system has its own rules and norms.
Another criticism is that legal consequences of an abrupt change cannot be judged by an abstract man made theory. Because of its narrowness of scope it does not compete with changing conditions and situations putting forward by the law.
In regard to its efficacy there is no any such criterion with the help of which the minimum effectiveness can be measured. Critiques point out that the theory is not valid in revolutionary situations.
In regard to its efficacy there is no any such criterion with the help of which the minimum effectiveness can be measured, efficacy of legal system cannot be measured by a theory.
It excluded from it the sociological factors of morality and justice which contribute for the effectiveness. A norm may take the form of a rule or a specific command. A norm, according to Kelsen, need not supply a rule of conduct that can be known beforehand a necessary condition for achieving the rule of law.
Primary norms and secondary norms Another way in which Kelsen describes the distinction between legal rules and legal norms is in terms of primary and secondary norms. It is the primary norm which constitutes a conditional directive to officials to apply sanctions in certain circumstances. The legal rule, that is, the actual rule created by the law making authority, and which specifies the proscription or prescription of certain conduct is then only a secondary norm and is not itself the essence of the law.
The secondary norm can be derived from the primary norm by a process of deduction. For Kelsen, all actions have a subjective meaning and an objective meaning. An act may have no more significance than that which can be derived from its mere occurrence. Legal Norm Legal norms represent the meaning we give to a particular series of facts.
The statement in a statute that something ought to be done is not a norm but a fact. The norm is the meaning we give to this fact when considered with certain other facts. A legal norm is a command. Hence it is neither true nor false.
The former statement in the statute prescribes behaviour. The latter statement describes what the law is. Kelsen distinguishes the legal norm and normal norm.
Thus, it is prescription of sanction that imparts significance to a norm, or putting it in another way. The Act of Parliament will state that a person convicted of murder shall be sentenced to life imprisonment. The Legal norm will state that the court ought to sentence a person convicted of murder to life imprisonment. Kelsen applied the Kantian distinctions with the following results.
The physical acts that give rise to law like passing of a statute or the delivery of a judgment belongs in the world of things or fact. They occur in time and space so we perceive them with our senses. It requires a mental inquiry about what the facts mean in a normative sense. They are as follows: Legislation, judicial precedent or custom — this is a fact 2.
The statement of the rule of law.
Legal order as a coercive order Kelsen, like other legal positivists, denied that there was a necessary connection between law and morality. Often it is both. The rule against theft is moral as well as legal. Law is not the only regulative system in society. Moral norms play an important role in guiding behaviour. Moral norms, like legal norms, have both subjective and objective existence. Kelsen also argued that law and morals cannot be distinguished according to their respective content.
The fundamental difference between law and morals is: The sanctions of the moral order are merely the approval of the norm-conforming and the disapproval of the norm-opposing behaviour and no coercive acts are prescribed as sanctions.
These norms range from the general, which are higher norms, to the particular, which are lower norms. The ultimate validity of all legal norms is predicated upon a hypothetical basic norm or Grundnorm which occupies the highest position in the hierarchy, and beyond which no other norm may exist.
The basic norm can sometimes be identified with, although it is not, the historical first constitution of a society. The Validity of Norms The basic norm is presupposed because the mere contention that a certain norm exists presupposes its validity, and that validity can only be derived from a higher norm, which in turn acquires its validity from an even higher norm, culminating in a valid Grundnorm. Thus, the question regarding legal norms, including the basic norm, is not whether or not they are valid, since the mere fact of their existence presupposes their validity, rather it is one of whether or not, in their existence, they belong to a particular hierarchy and hence to a certain legal order.
A rule of law is only valid if an only if it has the normative consequences it purports to have. Kelsen took the view that the validity of any legal norm depends on its membership in a system of norms. Kelsen postulated a hierarchy of norms, each norm deriving its validity from a higher norm in the hierarchy.
A single norm and a legal order as a whole cannot be regarded as valid, when they cease to be effective. A legal order does not lose validity because a single norm losses effectiveness.
Accordingly a norm, which is never applied and obeyed, losses its validity. Kelsen argues that one ought to behave as the individual who laid down the constitution have ordained.
This is what he calls the basic norm of the legal order. Although every law is created by human action, it derives its validity not from the act but from another law authorizing its creation.
The validity of the regulations in turn depends on their conformity with another norm, namely an act of parliament authorizing the authority to make regulations.
The validity of the constitution may in turn be a function of the fact that it has evolved from an older constitution or was created in terms of the rules of an older constitution by way of constitutional amendment. At a certain point in this chain or hierarchy of norms we arrive at the starting-point of the current constitutional order.
The Pure Theory of Law
It is a constitution that cannot be traced to an older constitution. Constitution — provides that whatever Parliament enacts is law 2. Parliament has enacted the act which appointed the judges 3. Act appoints the judge 4. Judge decides the person is guilty 5. The jailer turns the key.
A legal norm, once broken, will attract a sanction. Sanction Law is a coercive order that relies upon sanction. It is the social technique which consist in bringing about the desired social conduct of people through the threat of a measure of coercion which is to be applied in case of contrary conduct. Kelsen use the sanction to indicate the coercive nature of law. He fails sufficiently to separate duty from sanction. Kelsen has rejected the view of Austin about sanction who regards it the command of Sovereign because it introduces a psychological element into a theory of law.
That is why he prefers Grundnorm which provides sanction to law. Its authoritative nature makes any legal system authentic. This sanctioning power of the Grundnorm makes it applicable to all other laws. The basic norm and legal efficacy Every society has a basic norm peculiar to it, and this Grundnorm can be identified by reference to the legal norms which are actually referred to by officials in each society when they apply sanctions.
It follows that it is only in a society where officials regularly and effectively apply sanctions in accordance with certain primary norms that we can identify a system of norms and hence a basic norm. There cannot be a hierarchical system of norms in a society where officials do not efficaciously apply sanctions.
If we cannot identify such a system, nor its basic norm then we cannot be able to identify law in that society. It can be declared that such a society does not have law nor a legal system. The basic norm is presupposed on account of the actual activity of officials applying sanctions in accordance with primary norms which constitute a system which is on the whole efficacious.
It follows that the basic norm can change, in situations where officials cease to apply sanctions in accordance with one set of norms and start applying sanctions efficaciously in accordance with another set of norms.
Efficacy for Kelsen relates to the degree to which people actually comply with the law. If people do not attach credence to the law or avoid compliance, then the law cannot acquire the requisite validity to be called law.
The Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional—namely conditioned by the presupposed basic norm.
PT2, — A comparison to religion, that Kelsen himself offered, might be helpful here. The normative structure of religion is very similar to that of law. Thus the normativity of religion, like that of the law, rests on the presupposition of its basic norm. But in both cases, as, in fact, with any other normative system, the presupposition of the basic norm is logically required only of those who regard the relevant norms as reasons for their actions.
Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason. Relativism, however, comes with a price.
Consider this question: What is the content of the basic norm that one needs to presuppose in order to render positive law intelligible as a normative legal order? The simple answer is that what one presupposes here is precisely the normative validity of positive law, namely, the law that is actually practiced by a certain population.
The content of the basic norm of any given legal system is determined by the actual practices that prevail in the relevant community.
As Kelsen himself repeatedly argued, a successful revolution brings about a radical change in the content of the basic norm. Suppose, for example, that in a given legal system the basic norm is that the constitution enacted by Rex One is binding. One gets the clear impression that Kelsen was aware of a serious difficulty in his position.
In both editions of the Pure Theory of Law, Kelsen toys with the idea that perhaps changes in the basic norms of municipal legal systems legally derive from the basic norm of public international law. But this led Kelsen to the rather uncomfortable conclusion that there is only one basic norm in the entire world, namely, the basic norm of public international law. Be this as it may, the main worry lies elsewhere.
The worry stems from the fact that it is very difficult, if not impossible, to maintain both a profound relativist and an anti-reductionist position with respect to a given normative domain. This is basically what was meant earlier by the comment that Kelsen had no option but to admit that the validity of the basic norm is conditional on its efficacy.
And this makes it very questionable that reductionism can be avoided. In fact, what Kelsen really offered us here is an invitation to provide a reductive explanation of the concept of legal validity in terms of some set of social facts, the facts that constitute the content of any given basic norm.
Which is precisely the kind of reduction H. Hart later offered in his account of the Rules of Recognition as social rules [see Hart , at p. The problem stems from the fact that Kelsen was quite right about the law. Legal validity is essentially relative to the social facts that constitute the content of the basic norm in each and every legal order. Notice that legal validity is always relative to a time and place. A law enacted by the California legislature only applies within the boundaries of the state of California, and it applies during a certain period of time, after its enactment and until a time when it is modified or repealed.
And we can see why: because legal validity is determined by the content of the basic norm that is actually followed in a given society. Once Kelsen admits, as he does, that the content of a basic norm is fully determined by practice, it becomes very difficult to understand how the explication of legal validity he offers is non-reductive. The Normativity of Law Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normativity consists in.
A certain content is regarded as normative by an agent if and only if the agent regards that content as a valid reason for action. As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the normativity of law can only be explained as one would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action Raz , —; but cf.
Paulson The anarchist does not endorse the legal point of view as one that reflects her own views about what is right and wrong. Anarchism is understood here precisely as a rejection of the normative validity of law; however, even the anarchist can make an argument about what the law in this or that context requires; and when she makes such an argument, she must presuppose the legal point of view, she must argue as if she endorses the basic norm of the relevant legal system.
Another example that Raz gave is this: suppose that at Catholic priest is an expert in Jewish Law; the priest can make various interpretative arguments about what Jewish law really requires in this or that context.
In such a case, the priest must argue as if he endorses the basic norm of Jewish Law, but of course, being a Catholic, he does not really endorse it, it does not reflect his own views about what is right and wrong Raz , — So here is what emerges so far: the concept of normativity, the sense in which normative content is related to reasons for action, is the same across all normative domains.
To regard something as normative is to regard it as justified, as a warranted requirement on practical deliberation. However, the difference resides in the difference in points of view. Each basic norm determines, as it were, a certain point of view. So it turns out that normativity contra Kant always consists of conditional imperatives: if, and only if, one endorses a certain normative point of view, determined by its basic norm, then the norms that follow from it are reason giving, so to speak.
In other words, the difference between legal normativity and, say, moral normativity, is not a difference in normativity viz, about the nature of normativity, per se , but only in the relevant vantage point that is determined by their different basic norms. What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, as it were. We can set aside the difficulties that such a view raises with respect to morality. In other words, the difference between legal normativity and, say, moral normativity, is not a difference in normativity viz, about the nature of normativity, per se , but only in the relevant vantage point that is determined by their different basic norms.
What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, as it were. We can set aside the difficulties that such a view raises with respect to morality. Even if Kelsen is quite wrong about this conditional nature of moral imperatives, he may be right about the law.
What remains questionable, however, is whether Kelsen succeeds in providing a non-reductive explanation of legal normativity, given the fact that his account of legal validity turned out to be reductive after all. Instead of providing an explanation of what makes the presupposition of the legal point of view rational, or what makes it rational to regard the requirements of law as binding requirements, Kelsen invites us to stop asking. Only about a third of this vast literature has been translated to English.
The second edition, which Kelson published in translated in is a considerably extended version of the first edition. These three works are cited in text as follows:. Other relevant publications in English include What is Justice? Kelsen, General Theory of Norms M. Hartney trans. Oxford, , pp. The Basic Norm 2. Relativism and Reduction 3.
This systematic unity Kelsen meant to capture by the following two postulates: Every two norms that ultimately derive their validity from one basic norm belong to the same legal system. All legal norms of a given legal system ultimately derive their validity from one basic norm. The structure is as follows: But one is not rationally compelled to have this attitude: The Pure Theory describes the positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed….
The Pure Theory, thereby characterizes this interpretation as possible, not necessary, and presents the objective validity of positive law only as conditional—namely conditioned by the presupposed basic norm. PT2, — A comparison to religion, that Kelsen himself offered, might be helpful here. The Normativity of Law Let us now see how Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normativity consists in.
These three works are cited in text as follows: Introduction to the Problems of Legal Theory , B. Paulson and S. Paulson, trans. Clarendon Press. Pure Theory of Law , M. Knight, trans. University of California Press. General Theory of Law and State , A. Wedberg, trans. Secondary Sources Green, S. Jeremy Telman ed. Hans Kelsen in America. Springer Verlag. Harris, J. Hart, H. Kiefer and M.
Munitz eds , Ethics and Social Justice , pp. State University of New York Press.
Marmor, A. Oxford University Press. Soames ed. Princeton University Press. Paulson, S. In Matthias Klatt ed.
The Jurisprudence of Robert Alexy , pp. New Essays on the Pure Theory of Law , pp. Hart Publishing. Raz, J.
The Pure Theory of Law
Tur, R. Academic Tools How to cite this entry. Enhanced bibliography for this entry at PhilPapers , with links to its database. Other Internet Resources [Please contact the author with suggestions.Springer Verlag. Wedberg, trans. And, indeed, although Weber had said much about what is socially called 'law', he had not developed a clear concept of it himself. Wedberg, trans. Therefore, disobedience to legal norm is backed by sanction by the State.
Thus, contracts of the past will continue to be enforced, property owners will retain title, torts will remain actionable and crimes will be punishable. They occur in time and space so we perceive them with our senses. Be this as it may, the main worry lies elsewhere. Thus, whether you actually presuppose the relevant basic norm is a matter of choice, it is an ideological option, as it were, not something that is dictated by Reason. Thus legal norms are valid only while the political order to which they correspond is effective, but the reason that the norms are valid is the presupposed grundnorm.