Question: Discuss Kelsen’s pure theory of Law.

 

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Pure Theory of Law: Understanding Hans Kelsen's Legal Philosophy

Hans Kelsen was a prominent legal theorist, Austrian jurist, and philosopher who introduced the concept of Pure Theory of Law. His theory argues that the study of Law should be done in its purest sense, without any influence from other domains like morality, ethics, economics, sociology, history, or politics. Kelsen's work, "Principles of International Law" and "Pure Theory of Law," have significantly impacted the field of jurisprudence.

 

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Key Highlights from Kelsen's Theory

1.       Law as Normative Science: Kelsen compared Law with normative science, meaning that legal analysis should focus on what the law is, rather than what it ought to be.

2.       Separation of Law and Morality: He strictly separated Law and Morality, and it is the integral part of his theory. He believed that Law is a self-contained system that must be studied independently.

3.       Uniform Theory of Law: According to Kelsen, the theory of law should be uniform, meaning that it should be applied at all times and in all places.

4.       Grundnorm: Kelsen described Grundnorm as the highest law of the country, which provides a basis for all other laws. It is the ultimate norm that is presupposed and never questioned.

 

Criticism of Kelsen's Theory

1.       Vague Grundnorm: Kelsen designated Grundnorm as the highest authority of law, but its definition remains vague and confusing. It is unclear what should be considered as Grundnorm and from where it derives its powers and authority.

2.       Influence of Social Conditions: Grundnorm cannot be free from the customs, conventions, or social conditions of that particular place. For instance, in India, the Constitution can be considered as Grundnorm, but it is not entirely free from the influence of all these aspects.

3.       Validity of Grundnorm: Kelsen attempted to change the law into a science that could be understood through logic. However, he emphasized the validity of the grundnorm to be "assumed" rather than based on some "logic."

 

Conclusion

Hans Kelsen's contribution to understanding jurisprudence is unparalleled. However, his theory of Pure Theory of Law has faced criticism for its vague definition of Grundnorm and its separation of Law from morality. Despite its limitations, Kelsen's work has paved the way for further research in legal theory and influenced the development of various legal systems worldwide.

 

 

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