Hans Kelsen, 'The Pure Theory of Law' Critique

Essay Title – Hans Kelsen, ‘The Pure Theory of Law – its Method and Fundamental Concepts’ (1934) 4 Law Quarterly Review, 474 – Critique

Word Count – 2000 words

The Austrian philosopher and jurist named Han Kelsen proposed the Pure Theory of Law. According to Kelsen, the standard legal philosophies were marred with contamination of law with moral and political ideology, which was compounded by attempts to marry law with social sciences. Hence, both of these endeavours were an exercise in futility as they were riddled with flaws[1]. Thus, Kelsen proposed the Pure Theory of Law, which would avert attempts of reductionism of any form. It simply accommodates pure law in itself as it is founded on primary methodological principle. Given that the law is to be perceived as a normative/ standard practice, the usage of methodological reduction needs to be averted altogether. Reductionism was needed to be averted at all costs since law is needed to be divorced from nature and morality[2].

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As per Kelsen, law is a system of norms. According to him, legal norms are devised by willed acts or in other case, the products of deliberate human action, contrary to moral norms dictated by God. Thus, the pure theory of law undertakes only human-based norms, as opposed to imaginary superhuman entities[3].

The Pure Theory of Law is termed as theory of positive law. Hence, the theory is more so given in terms of formation of hierarchical laws commencing from basic norm. The remainder of the norms are associated by inferior norms, when one is contrasted with another[4].

2. Laws and Morals

The segregation of morals and law by Kelsen forms an essential component of theory of pure law. By its standards, the law needs to be divorced from political and moral influences. Hence, the law should be in its clear form, unaffected by moral and political undercurrents[5].

3. Science and Law

According to Kelsen, the law was described in form of implementation of norms to state machinery. As science was primarily based on comprehension of epistemological data, therefore, its causal and logical technique was to be differentiated from normative reasoning as given in pure theory of law[6].

4. Static Nature of Law

The static theory of law was differentiated from dynamic theory of law. However, this static theory of law presents law in terms of hierarchal laws where laws are deemed as inferior to one another[7].

5. Dynamic Nature of Law

In case of dynamic nature of law, the static theory of law comes toe-to-toe with governmental administration of a given state, which needs to acknowledge the function of legislature in penning of the new law. Simultaneously, an understanding of law being impacted by net standing law which encompasses the court-related decisions are enfolded in the hierarchical representation of pure theory of law. Hence, Kelsen allows legislative machinery to note law as a product of the ethical and political process[8].

6. The Normativity of Law

The normativity of law can be paralleled with that of religion, as it does not base on the inherent obedience of the concerned subjects. For instance, the norms of Christians would be held in validation even in the absence of Christians. However, it is hardly the case with law. The key implementation of law/ legal system banks on its actual practice. The legal order is defined by norms which are by and large effective. The element of basic norm rests on its effectiveness. As asserted by Kelsen, the successful revolution results in an eventual change in the nature of basic norm[9].

7. The Basic Norm

As per Kelsen, the law is an arrangement of norms. These norms are should be statements, setting up certain forms of conduct. Contrary to moral norms, as per Kelsen, the legal norms are set up by the legal norms creation of willed acts. It is a product of human action. Hence, Kelsen thoroughly supposed that law which entails ought and should be statements, is unable to be reduced to such natural actions/ events which gives impetus to it. As a result, legal norms are ought/ should be statements, since it is unable to be deduced simply from factual premises[10].

As per the claims of Kelsen, the law is simply the hierarchy of legal norms at different levels as opposed to being a system of coordinated norms of equalized level. When the legal norms are far from positive/ just, then legal order becomes problematic. As per Kelsen, no such norm exists which is predominantly unchallengeable. No such grand norm exists, since it is purely arbitrary in nature. This norm essentially came from competence, collective will and capacity of individuals. Thence, Kelsen has deployed this term in order to dictate the basic norm, which forms the pillar of the legal system. Hans reasoned that a need for pinpointing the origin of law is necessary in order to gain its legitimacy[11].

A pure proper law often differentiates the ought statement from is-statement. In case of is statement, when something is done/ not done is an indicator of action. In case of ought statement, when something is done/ not is an indicator of a greater form of reason needed for action. It involves obligation and discharge[12].

Hence, the key objective and motive of Hans Kelsen was to safeguard the sanctity of law from two major zones of methodological syncretism which a legal system often entails; sociology and psychology as well as politics and ethics on the other side. Law is to be deemed as a normative order. Kelsen has indicated that a key relation exists between validity and norms, however, he asserts that both are all the more dissimilar. An ineffective norm may lose its validity, similar to the legal order should have a key linkage to effectiveness, a key point postulated by Kelsen in discussing the basic norm[13].

According to Pure Theory of Law, positive law is defined as a valid order which is held only when the condition of basic norm is supposed. Thence, the theory characterizes this meaning as a possibility as opposed to being necessary. Hence, it becomes only as conditional when it is presupposed basic norm[14].

According to the categorical differentiation of ought and is, ought is unable to be reduced to is, and ought is unable to be an is. Thus, is is unable to be inferred from that ought, neither vice versa. The dual nature of ought and is does correlate with that of value and reality. Hence, no value could be can be obtained from reality, as well as vice versa.The next layer, that of rules, is the realm of Ought. It is visualized vertically. According to Kelsen, it deals with the legal meaning, namely, a specific legal significance. The Ought comes up to the actual substrate, the Is. Legal acts of the laws, judgments, the private law, e.g. private contracts, etc. constitute the Ought as a regulative background of the Is stage[15].

Hence, ought is related to imputation and is is connected with causality. The weight is on a vertical plane, whereas the is on a horizontal plane. The Pure Theory of Law exists on a metal-level and intends to attain cognition[16].

The strength of Pure Theory of Law lies in the provision of a theoretical law, which accommodates administrative and judicial tribunals along with legislative rigours of the legal system and administrative bodies. Pure Theory of Law confers power to subordinate administrators in order to devise a subordinate legal norm, and to indicate the nature of such norms. The Pure Theory of Law is devised for traceability of each legal act to be in line with the penned constitution[17].

It could be perceived as a handy analysis tool for assessment of numerous constitutions. Another advantage of this theory is that it presents an active legal order as opposed to a static one. Hence, the law remains orderly via maintaining fluency along most of its components, by simplifying and broadening the principles of law. It acts as a form of logical system. It could be theorised as a complete, proper logical system. The theory of Hans Kelsen is typical of all key law theories, which stringently emphasises the need of orderliness in law. It stresses highly on the value of law. However, it supports a new form of orderliness diverse from those given in judicial precedents[18].

The Pure Theory of Law has considerable flaws as examined in this section. It essentially precludes the elements of sociological justice and morality, which paves way for efficiency. This form of theory is unable to be applied to each legal system since each legal system operates with its own norms and rules. A man-made theory is unable to adjudicate the legal repercussions of a sudden change. The Pure Theory of Law posited by Kelsenian theory is largely criticized since conceptual and abstract theory is unable to accommodate the validity of standard laws encompassing the legal system[19].

Each particular legal system sets its own rules and boundaries founded on their validity. The theory seems steeped in fiction as it is largely applicable on fictitious situations and it has no particular grounds for acceptance in reality. No such theory can be applied to a legal system since each possesses its own hierarchical order and norms. Conflicts arises in case of multiple legal systems. Due to its excessively narrowed scope, it is unable to accommodate altering circumstances and conditions posited by the law. The theory is invalidated on revolutionary grounds, however, no particular effectiveness criterion is set up either[20].

Since, Hans has compared the purity and objectivity of his posited theory with ideological and political propensities of his previous theories, it merely turns out to be a mere inadequate reflection on his previous assertions. It is necessary to reflect on personal consideration and prejudices prior to positing an individual world-view. Therefore, it can be reasonably assumed that theory of Kelsen is far from political and ideological purity. Hans Kelsen remains unsure of the norm to be established and its source of emergence. At times, he seems to posit that this norm will emerge from the constitution, in other cases, he hangs by a legal shoestring and sometimes by the laws presented by a dictator. Thus, his supposed norm remains ambiguous. As the legal system is founded on moral principles, it is guided and steeped in morality. The divorce of morality from law is essentially legal suicide. His theory is unable to validate moral law since each present law accommodates morality in its confines[21].

References 

Bulygin, E. “An Antimony in Kelsen’s Pure Theory of Law.” Ratio Juris 3, no. 1 (2010): 29-45.

Cohen, H. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011): 147.

Harris, JW. “Legal philosophies.” (1997).

Hart, HLA. “Kelsen’s Doctrine of the Unity of Law.” (2008).

Kelsen, H,  Paulson, BL and Paulson, SL. Introduction to the problems of legal theory. Oxford: Clarendon Press, 2006.

Kelsen, H. “General theory of norms.” (2012).

Paulson, SL. “The weak reading of authority in Hans Kelsen’s pure theory of law.” Law and philosophy 19, no. 2 (2009): 131-171.

Vinx, L. Hans Kelsen’s pure theory of law: legality and legitimacy. Oxford University Press, USA, 2007.

[1] Cohen, Henry. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011): 147.

[2] Vinx, Lars. Hans Kelsen’s Pure theory of law: legality and legitimacy. Oxford University Press, USA, 2007.

[3] Bulygin, Eugenio. “An Antimony in Kelsen’s Pure Theory of Law.” Ratio Juris 3, no. 1 (2010): 29-45.

[4] Cohen, Henry. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011): 147.

[5] Harris, James William. “Legal philosophies.” (1997).

[6] ibid

[7] Hart, Herbert LA. “Kelsen’s Doctrine of the Unity of Law.” (2008)

[8] Ibid

[9] Hart, Herbert LA. “Kelsen’s Doctrine of the Unity of Law.” (2008)

[10] Cohen, Henry. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011):147.

[11] Hart, Herbert LA. “Kelsen’s Doctrine of the Unity of Law.” (2008)

[12] ibid

[13] Hart, Herbert LA. “Kelsen’s Doctrine of the Unity of Law.” (2008)

[14] Kelsen, Hans, Bonnie Litschewski Paulson, and Stanley L. Paulson. Introduction to the problems of legal theory. Oxford: Clarendon Press, 2006.

[15] Ibid

[16] Bulygin, Eugenio. “An Antimony in Kelsen’s Pure Theory of Law.” Ratio Juris 3, no. 1 (2010): 29-45.

[17] Cohen, Henry. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011): 147.

[18] Kelsen, Hans. “General theory of norms.” (2012).

[19] Kelsen, Hans, Bonnie Litschewski Paulson, and Stanley L. Paulson. Introduction to the problems of legal theory. Oxford: Clarendon Press, 2006.

[20] Cohen, Henry. “Kelsen’s Pure Theory of Law.” Cath. Law. 26 (2011): 147.

[21] Paulson, Stanley L. “The weak reading of authority in Hans Kelsen’s pure theory of law.” Law and philosophy 19, no. 2 (2009): 131-171.