Q. Explain fully Kelson's Pure Theory of Law. Is it correct to say that this theory has left dry bones of law deprived of flesh and blood which give them life? [2018 - 20 marks]
Kelson’s Pure Theory of Law
Explained below are the main points of Kelson's Pure Theory of Law:
1. Law is a science: According to Kelson, law is a normative science. But law norms may be distinguished from Science norms. Science norms are based on cause and effect, such as law of gravitation. The law norms on the other hand, does not attempt to describe what actually occurs, but only prescribes certain rules. It says if one breaks the law then he ought to be punished. Kelson says, “Law is a de-psychologized command, a command which does not imply a will in psychological sense of the term.”
2. Hierarchy of Normative Relations: The science of law to Kelson is the knowledge of hierarchy or normative relations. He builds on Kant’s theory of knowledge and extends this theoretical knowledge of law also.
3. Separation of Law from other social sciences and Morals: Kelson limits the scope of jurisprudence by excluding its relations with social science. He separates law from politics, sociology, meta-physics and all other extra-legal disciplines.
4. The Grundnorm: Kelson’s Pure theory of law is based on the pyramidal structure of the hierarchy of norms which derive their validity from the basic norm which he termed as ‘Grundnorm.’ The Grundnorm or basic norm determines the content and give s validity to other norms derived from it. Kelson has no answer to the question as to where from the Grundnorm or basic norm derive its validity.
5. Pyramid of norms: Kelson considers legal science as a pyramid of norms with Grundnorm at the top. The subordinate norms are controlled by norms superior to them in hierarchical order. The Grundnorm is however, independent of any other norm being at the top.
Essential Features of Kelson’s Pure Theory of Law
1. The aim of a theory of law, like any science, it to reduce the chaos and convert multiplicity to unity.
2. Legal theory is science, not volition. It is Knowldge of what the law ‘is’ and not of the law ‘ought to be’.
3. The law is a normative science, not a natural science.
4. Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.
5. A theory of law is formal, a theory to a particular system of positive law is that of possible to actual law.
Postulates of Kelson’s Pure Theory of Law
1. Law and states cannot be differentiated: According to Kelson, there is no difference between law and state. He says that when all derives their power and validity ultimately from the Grundnorm, there can be no superior person as sovereign.
2. No distinction between public and private law: according to Kelson, there is no difference between public and private law. When all law derive its power from Grundnorm, distinctive characters can not be attributed to it.
3. No difference between natural and Juristic persons: To Kelson, a legal personality is artificial and derives its validity from superior norms. Personality in law means an entity capable of bearing rights and duties.
4. No individual Rights: Kelson’s conception of law as a system of normative relations leads to the conclusion that there is no such thing as an individual right in law.
5. Supremacy of International Law: According to Kelson, international law is supreme. Kelson vouches that International law is ‘Juridical Order’ and should be given its due diligence.
Criticism of Kelson’s Pure Theory of law
The Pure theory of Kelson is criticized on the following grounds:
1. Grundnorm is vague and confusing: The critics of the Pure theory say that the Grundnorm, which is the very basis on which the theory is standing, is vague and confusing. Any theory whose base is confusing cannot establish a concrete theory of law.
2. The purity norms of Kelson's Pure Theory is not seamlessly maintained. Everything in Kelson’s theory traces back to the Grundnorm, which becomes an issue with the law makers, judges and legislators in practical implementation front.
3. There is a very little practical significance of the theory propagated by Kelson. Though it is not widely accepted, according to the critics, the Pure theory lacks practical significance.
4. Natural Law is excluded: It is criticised that the Natural Law is excluded in Kelson's Pure theory. Kelson presents a very scientific analysis of legal order, therefore, he could not take the natural law into consideration.
5. Kelson in his Pure Theory of Law, gives utmost importance to the International law, which according to him should be given highest priority. This leads to a number of inconsistencies with the implementation of the Grundnorms. According to critics, the International law does not fit into the Pure theory at all and should be taken out from this theory.
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