KELSEN’S (PURE THEORY OF LAW )- (Blog)

INTRODUCTION –

           ANALYTICAL SCHOOL : KELSEN’S (PURE THEORY OF LAW )

-         The pure theory of law which is known as the “Vienna School” of legal thought was propounded by Hans Kelsen (1881 – 1973 ) , a professor in Vienna (Austria ) University . It is called a pure theory of law , because it only describes the law and attempts  towards strict law , e.g ., ethics, politics, history, sociology etc thus it is free to all evaluative morals, psychological elements (e.g. fear) ,etc . The lawness of a norm is not dependent upon metal  legal facts but upon its own specificity and relation to the legal order itself . The test of lawness is to be found with in the system of legal order itself. It has nothing to do either with social facts or with high principals of justice.

 

BASIC POSTULATES OF KELSEN THEORY

-          Kelsen defines law as as an order of human behaviour .

-          The Law is normative not a natural science .

-          The legal system is a system not of what is reality, but only of what ought to be

-          The binding force of the legal order should be sought not in the motivation or behaviour pattern of the people behaviour the order regulates, but in the sanction that is necessarily attaches to every legal rule .

-          The efficacy of a legal order is ascertained by whether coercive elements in law make people obey.

-          A norm is only valid because it is derived from or is in ordinance by another norm

According to Kelsen,

                                    There is no antimony because the sanction of force behind the law was legal force as it could be used only strictly in accordance with certain stipulated  conditions  by specified persons ; the law enforcing organs must and do have the monopoly of the use.

Kelsen emphatically denies the existence of a sovereign as a personal entity. When all derive their power and validity ultimately from the grund norm there can be no supreme or superior person as sovereign . In the same way the state is but a simple way of conceiving the unity by legal order and is only a synonym for the legal order itself.

 

Meaning of Norms / Norm creation/Hierarchy of Norms

According to Kelsen, laws are ‘ought propositions i.e ‘norms ’ . ‘If X happens, then Y ought to happen ‘,or in other words ,’ if a person commits theft , he ought to be punished’. Law does not attempt to describe what actually occurs but only prescribes certain rules.

Every norm is an expression of an act of will that something ought to happen. Norms is a legal meaning attached to an act of will. The judgement that an act of human behaviour is legal or illegal is the result of a specific, namely normative interpretation.

Finally, it is noted that a norm need not be only the meaning of a real act of will; it can also be the content of an act of thinking . For example grundnorm is an imaginary will whose meaning is the norm which is only presupposed in our thinking.

Also, there occurs a movement from the generality of norms to a process of individualization of norms ( e.g ‘ right to life ‘ is a general norm , and ‘right to education’ an individual norm because the latter can be subsumed under the former  general norm ). Kelsen also pointed out the norms embodied in a statute are primary norms.

-Gagandeep singh

RIMT SCHOOL OF LEGAL STUDIES