Kelsen’s Pure Theory of Law

INTRODUCTION

Kelsen belonged to the Analytical school of thought and was one of the jurists responsible for reviving the original analytical thought in the 20th century. Kelsen through his Pure Theory of Law aimed to present Law in its purest form, free from all the ideologies. His theory addressed the shortcomings of the theories propounded by the ones before him.

Kelsen claimed that the theory is pure on two counts, it distinguishes Law from (1) morals and (2) faith

Assumptions

Pure Theory of Law is based on various basic assumptions. Some of them are listed below: –

  • Law must always be “what it is” and not “as it ought to be”.
  • Law is normative not a natural science.
  • He believed that the application of Law shall be uniform, shall apply to all places at all times.
  • The legal theory does not concern itself with the effectiveness of legal norms.
  • This theory reduces the chaos and confusion created by Natural Law philosophy and makes way for order.
  • This theory is based on Kelsen’s belief that a theory of Law must be free from extra-legal disciplines, contrary to Austin’s concept of command that introduces a psychological element.

The Grundnorm

Grundnorm is a German origin word that means “fundamental norm”. Kelson’s theory is based on a hierarchy of norms in a pyramidical structure with Grundnorm at the top. From that, as it progresses, a legal system broadens becoming more detailed and specific. He defines Grundnorm as the ultimate rule from which other rules are derived or annulled, receives, or lose their validity. A Grundnorm exists due to its popularity as it establishes when it has got a minimum level of effectiveness for itself and when it loses that support, it becomes ineffective and a new Grundnorm is established. This is what we call “revolution” Kelson states that in every legal system, there will always be a Grundnorm of some sorts. Kelsen characterizes Grundnorm to be a mere fiction.

Implications of Pure Theory

  • Public Law and Private Law are not to be treated as that of different characters as all Laws derive force from the Grundnorm and there shouldn’t be any distinction just because of some dissimilarities.
  • The Pure Theory of Law does not define Law and State as two different things, they are rather similar. Kelson negates the concept of “sovereign” as a personal entity.
  • It defines “personality” as the entity capable of being endowed with certain rights and duties. It holds no difference between natural and juristic persons. Reason being that all legal personalities are artificial and derive their validity from superior norms.
  • It holds that there is no difference between the 3 organs of the Government i.e. Legislative, Executive, and Judiciary as all 3 are “norm-creating agencies”.
  • Kelson does not consider the concept of rights as essential for a legal system and hence the theory denies individual rights. On the other hand idea of duty seems essential.

Criticism of Pure Theory of Law

Kelson’s Pure Theory of Law happens to address a lot of shortcomings of the theories given by the ones before him and he attempted to devise a logically consistent theory. To some extent, he did achieve his goal but even his theory was not criticism-proofed!

  • Grundnorm being characterized as vague and confusing. Reasons given- no minimum criteria given by Kelsen for it, depends on sociological factors which are however rejected by Kelsen himself.
  • Kelsen states that a theory of Law shall be free from extra-legal disciplines but he somehow misses on the point that in modern times, the interaction of Law with disciplines like economics, psychology, etc is necessary.
  • Kelson altogether ignored the importance and application of customs.
  • The weakest link of Kelson’s theory is International Law as to when the theory is applied to it, it shows many limitations.
  • Besides customs, Kelson also in entirety ignored Natural Law and Morality.
  • Theory’s application and usefulness is somewhat limited to only legal scientists and not of much use to legal judges.
  • The theory does not address the part that purity of Norms is difficult to maintain.

Application of Pure Theory of Law in India

Tracing the application of the theory, Grundnorm in ancient times was Dharma. The scriptures show that it enshrined a duty on the King to rule and administer justice following Dharma. And it was accepted by the masses too for the survival of the society.

British rule in India rejected the ancient Indian legal system and made a place for Positivism by initiating codification and introducing the British justice system through equity, justice, and good conscience.

Post Independence- Basic structure of the Constitution can be regarded as the Grundnorm of the present time. Reason being that Laws derive their validity from it, meaning that for a Law to be valid, has to be consistent with the basic structure.

Basic structure majorly comprises of: –

  • Supremacy of the constitution as a sovereign, socialist, democratic, republic as enshrined in the Preamble
  • A welfare State
  • The federal character of the Constitution
  • Separation of powers between the organs
  • Fundamental Rights (Part III)

Kesavananda Bharati v. State of Kerala (1973) SC

Legal issue- Extent of amending power under Article 368

Decision- A Special Bench13 Judges held that the power to amend does not include amending the basic structure of the Constitution so as to result in changing its identity.

Indira Gandhi v. Raj Narain (1975) SC

Article 329A (4) was struck down as it was beyond amending power of the Parliament. Hence the doctrine of basic structure was followed.

Minerva Mills Ltd. & Ors. v. UOI (1980) SC

The Hon’ble Court stated- Limited powers of Parliament to amend the Constitution, Harmony between Fundamental Rights and Directive Principles and Fundamental Rights in certain cases as a part of  basic structure of the Constitution.

CONCLUSION

Even though most of us know Austin as the Father of Positive Law School (honestly, it is rather debatable as Bentham seems to be the founder) but once you come across Kelson’s work, you realize how creatively he gave a new shape and form to this school and tried to acknowledge the shortcomings of his predecessors. Kelson is one of the greatest jurists of his time who propounded the “Pure Theory of Law”. It is an interesting revival of analytical jurisprudence. Even though despite the efforts it is subjected to criticism, it is still used popularly amongst various legal thinkers and jurists and as we saw earlier, has its application in India too.

This article is written by Munmun Kaur, a Law student from Law Centre-I, Faculty of Law, Delhi University.

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