KELSON’S PURE THEORY OF LAW:
NAME: R VIJAYA ANAND (20BLB1104)
The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973) (see the bibliographical note). Kelsen began his long career as a legal theorist at the beginning of the 20th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle”
Kelsen's Pure Theory of Law aims to describe law as a hierarchy of binding norms, while refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory is the notion of a 'basic norm grundnorm—a hypothetical norm, presupposed by the theory, from which in a hierarchy of empowerments all 'lower' norms in a legal system, from constitutional system downward, are understood to derive their validity, hence their authority or 'bindingness'. This is not logical validity (i.e. of deduction), but 'legal validity'; a norm is legally 'valid' if and only if the organ creating it has been so empowered by a higher norm. Public international law is understood as similarly hierarchical. In this way, Kelsen contends, the validity of legal norms (their specifically 'legal' character) can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation. The Pure Theory is intended as rigorous legal positivism, excluding any idea of natural law.
Kelsen's main statement of his theory, his book Reine Rechtslehre, was published in two editions, far apart: in 1934, while he was in exile in Geneva, and a second, much expanded edition after he had formally retired from the University of california. The second edition appeared in English translation in 1967, as Pure Theory of Law, the first edition appeared in English translation in 1992, as Introduction to the Problems of Legal Theory. The current translation of the second edition, in omitting many footnotes, obscures the extent to which the Pure Theory is both philosophically grounded and responsive to earlier theories of law; a new translation is in preparation.
Kelsen wrote primarily in German, as well as in French and in English. His complete works are being published, both in hard copy and online, as the Hans Kelsen Werke, planned to run to 32 volumes with completion in 2042.
ESSENTIAL FEATURES OF KELSONS PURE THEORY OF LAW:
The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
Legal theory is science, not volition. It is knowledge of what the law is not of what the law ‘ought to be’.
The law is normative not a natural science.
Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.
It is a formal theory confined to a particular system of positive law as actually in operation.
The Basic Norm
The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world (PT1, 10). Suppose, for example, that a new law is enacted by the California legislature. How is it done? Presumably, some people gather in a hall, debate the issue, eventually raise their hands in response to the question of whether they approve a certain document or not, count the number of people who say “yes”, and then promulgate a string of words, etc. Now, of course, the actions and events described here are not the law. To say that the description is of the enactment of a new law is to interpret these actions and events in a certain way. But then, of course, the question is why certain acts or events have such a legal meaning and others don’t?
Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is created in accordance with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and only if it has been created in accord with yet another, “higher” norm that authorizes its enactment in that way. In other words: it is the law in the United States that the California legislature can enact certain types of laws. But what makes this the law? The California Constitution confers this power on the state legislature to enact laws within certain prescribed boundaries of content and jurisdiction. But then what makes the California Constitution legally valid? The answer is that the legal validity of the Constitution of California derives from an authorization granted by the US Constitution. What makes the US Constitution legally valid? Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the land”. Any document can say that, but only the particular document of the US Constitution is actually the supreme law in the United States.
The idea of the basic norm serves three theoretical functions in Kelsen’s theory of law: The first is to ground a non-reductive explanation of legal validity. The second function is to ground a non-reductive explanation of the normativity of law. The third function is to explain the systematic nature of legal norms. These three issues are not un-related.
Kelsen rightly noticed that legal norms necessarily come in systems. There are no free-floating legal norms. If, for example, somebody suggests that “the law requires a will to be attested by two witnesses”, one should always wonder which legal system is talked about; is it US law, Canadian law, German law, or the law in some other legal system? Furthermore, legal systems are themselves organized in a hierarchical structure, manifesting a great deal of complexity but also a certain systematic unity. We talk about Canadian law, or German law, etc., not only because these are separate countries in which there is law. They are also separate legal systems, manifesting a certain cohesion and unity. 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.
Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that they are both inaccurate, at best. Two norms can derive their validity from the same basic norm, but fail to belong to the same system as, for example, in case of an orderly secession whereby a new legal system is created by the legal authorization of another. Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm (Raz 1979, 127–129).
Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his main insight remains true, and quite important. It is true that law is essentially systematic, and it is also true that the idea of legal validity and law’s systematic nature are very closely linked. Norms are legally valid within a given system, they have to form part of a system of norms that is in force in a given place and time.
This last point brings us to another observation that is central to Kelsen’s theory, about the relations between legal validity and, what he called, “efficacy”. The latter is a term of art in Kelsen’s writings: A norm is efficacious if it is actually (generally) followed by the relevant population. Thus, “a norm is considered to be legally valid”, Kelsen wrote, “on the condition that it belongs to a system of norms, to an order which, on the whole, is efficacious” (GT, 42). So the relationship here is this: efficacy is not a condition of legal validity of individual norms. Any given norm can be legally valid even if nobody follows it. (e.g. think about a new law, just enacted; it is legally valid even if nobody has yet had an opportunity to comply with it.) However, a norm can only be legally valid if it belongs to a system, a legal order, that is by and large actually practiced by a certain population. And thus the idea of legal validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system exists, as it were, only as a social reality, a reality that consists in the fact that people actually follow certain norms.
What about the basic norm, is efficacy a condition of its validity? One might have thought that Kelsen would have opted for a negative answer here. After all, the basic norm is a presupposition that is logically required to render the validity of law intelligible. This would seem to be the whole point of an anti-reductionist explanation of legal validity: since we cannot derive an “ought” from an “is”, some “ought” must be presupposed in the background that would enable us to interpret certain acts or events as having legal significance. Kelsen, however, quite explicitly admits that efficacy is a condition of the validity of the basic norm: A basic norm is legally valid if and only if it is actually followed in a given population. In fact, as we shall see below, Kelsen had no choice here. And this is precisely why at least one crucial aspect of his anti-reductionism becomes questionable.
Objectives Of Kelsen’s Pure Theory
Kelsen rejected Austin’s proposal to set up a Superior authority (Sovereign) as a source and he interpreted the pure principle which is necessary to achieve the ordered symmetry in the legal system, so the sources of law can be traced. Kelsen’s pure theory of law almost covers all legal concepts such as legal personality, rights, and duties, private and public laws, etc.