Table of Contents

1. Introduction

2. Meaning of “Pure Theory of Law”

3. Nature and basic Principles of Pure Theory of Law

4. Essential foundation of Pure theory of law

5. Implications of the Pure theory of law

6. Merits of the Pure theory of law

7. Criticism of the Pure theory of law

8. Conclusion

9. Bibliography
Introduction

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 endeavours 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”

Background of the theory-

A legal theory, in most cases, takes inspiration from the legal system. It analyses and seeks to
give a juristic basis of such legal system. It analyses and seeks to give a juristic basis of such
legal system and tries to present solution of the problems. We have discussed in the preceding
pages how the judicial system in America led to the legal thought called ‘realism’. Before
discussing the ‘Pure Theory of Law’ it is necessary to throw some light on the background of
this theory. The ‘Pure Theory of Law’, which is also known as the ‘Vienna School’ of legal
thought was propound by Hans Kelsen a professor in Vienna (Austria) University. Though
the first exposition took place in 1911, it came in full bloom in post war Europe. The national
and international conditions at that time may throw light on the basis and necessity of this
approach. The Austrian Code, in force at that time was prepared hundred years ago when the
“Natural Law’ theory was at its height. Though the natural law was rejected in England as
early as in the 19th century, in the continent it had its footing till the beginning of the 20 th
century. New theories in the 20th century started inflicting severe blows on ‘Natural law’
theories. The ‘Pure Theory of Law’ also rejected the idea of natural law. Secondly, Kelsen’s
theory came also as a rejection against the modern schools which have widen the boundaries
of jurisprudence to such an extent that they seem almost co-terminous with those social
sciences. Thirdly, after World War I most of the countries in the continent adopted written
constitution. The idea of fundamental law as basis of the legal system was reflected in them.

The idea of ‘Grundnorm’ which may be said to be the foundation stone of the “Pure Theory”
and the definition of law as the ‘hierarchy of norms’ seem to be inspired by the above
principle.

Meaning of Pure Theory of Law-

Kelsen’s theory of law is referred to as “Pure Theory of law” because he believed that any
explanation of the nature of law had to exclude all other elements such as sociology, politics
and other disciplines. Kelsen also excluded any possibility of morality being involved in the
question of legal validity. It is this dual exclusion that inspired another 20 th century jurist,
Joseph Raz, to consider Kelsen’s theory as being “doubly pure”.

Hence, it is possible to summarise that:

1. The premise of Kelsen’s theory in anti-natural law. All natural law theories assume a
dualism of what the law is and what law ought to be. Kelsen rejected this dualism.
However, he was very concerned about law and morals and his theory had to explain
these so as not to mix the two concepts.
2. Kelsen belived that law is self-defining, and it should not be described politically,
sociologically etc. For Kelsen, law is free of the impurities of other disciplines. This is
a defect that Kelsen noticed.

Pure Theory is close to some other theories-

Kelsen’s theory is in some respect close to the theory of Austin. Both point out the coercive
character of law and both are positivists. In one respect it is close to Realists as it too wants to
remove all illusions and distractions from law. Some of Kelsen’s conclusions, though reached
from different premises, bring him close to sociologist and specially to Duguit. But the main
point of his history is that it proceeds to free “the law from the metaphysical mist with which
it has been covered at all time by the speculations on justice or by the doctorine of ‘jus
naturalie’. Therefore, his theory is called the “Pure Theory of Law”.

Nature and basic principles of the Pure Theory of

Law
  The Pure Theory of Law is a theory of positive law- As a theory it is exclusively
concerned with the accurate definition of its subject matter. It endeavours to answer
the question: What is the law, but not the question, what it ought to be. It is a science
and not a politics of law.

 “Pure” theory of law means that it is concerned solely with that part of
knowledge which deals with law-The Pure Theory of Law seeks to define clearly its
objects of knowledge in these two directions in which its autonomy has been most
endangered by the prevailing syncretism of methods. Law is a social phenomenon.
Society, however, is something wholly different from nature, science and an entirely
different association of elements.
The Pure Theory of Law, as a specific science of law considers legal norms not as
natural realities, not as fact in consciousness, but as meaning contents-
And it considers facts only as the content of legal norms that is only as determined by
the norms. Its problem is to discover the specific principles of a sphere of meaning-
What is here chiefly important is to liberate law from that association which has
traditionally been made for it- its association with morals. This is not of course to
question the requirement that law ought to be moral, that is, good. That requirement
is self-evident.

 To free the theory of law from Moral norm is the endeavour of the Pure Theory
of Law-The Pure Theory of Law separates the concept of the legal norm completely
from that of the moral norm and established the law as a specific system independent
even of the moral law.

According to Kelsen law is a normative science- Jurisprudence is the knowledge of norms.

Law is a normative science. A norm of law is simply a preposition in hypothetical from. A
norm of law has a distinct feature. They are different from Science norm.

Hierarchy of normative relations-For Kelsen law is the knowledge of hierarchy of normative

relations. He does not want to include in his theory what ought to be but for him, law is a
theory of analysis an analysis that is free from all ethical and political judgment of value

Essential foundation of Kelson's Pure Theory of

Law

1. Reduce chaos and multiplicity to unity-

  The aim of the Pure Theory of Law is to reduce chaos and multiplicity to Unity.

2. Legal theory as a science of what law is, not what ought to be –

Pure theory of law deals with the knowledge of what law is, and it is not concerned
about what law ought to be.

3. Law as normative science –

 Theory considered as a normative science and not a natural science.

4. Effectiveness of not out of scope – 

Legal theory as a theory of norms is not concerned with the effectiveness of legal
norms.

5. It is formal theory confined to a particular system of positive law as actually in

operation.

6. The relation of legal theory to a particular system of positive law is that of possible to
actual law

Implications of the “Pure Theory of Law’

The implication of Kelsen’s theory is wide and many. It covers concept of state, sovereignty.
Private and Public law. Legal personality, right and duty and international law. A brief
discussion of these implications is necessary.

 Law and state not two different things- Kelsen emphatically denies the existence of
a ‘sovereign’ as a personal entity. He denies also the existence of state as an entity
distinct from law. When all derive their power and validity ultimately from the
‘Grundnorm’ there can be no supreme power or superior person as ‘sovereign’.

 No difference between public and private law- According to Kelsen, there is no

difference between public and private law. When all law derives its force from the
same ‘Grundnorm’, two entirely different character can not be attributed to it on the
ground of being a difference in certain respects. Contract made between parties stand
on an equal footing with criminal law, because in both cases the validity or the power
is derived from the same ‘Grundnorm’.

 No difference between ‘natural’ and ‘juristic’ person- On the same principle,

Kelsen does not admit any legal difference between physical and juristic persons. All
legal personality is artificial and derives its validity from superior norms.
‘Personality’ in law means an entity capable of bearing rights and duties.

 No individual rights- Kelsen’s conception of law as a system of normative relations

leads to the conclusion that there is no such thing as individual rights in law. Legal
duties are the ‘essence of law’. Law is always a system of ‘oughts’’. The concept of
right is not basically essential for a legal system; ‘legal right is merely the duty as
viewed by the person entitled to require its fulfilments.

 Supremacy of International law- Kelsen tried to established the supremacy of

International law. He is out to say that the International law should also be considered
a ‘juridical order’

Merits of the Pure Theory of Law

1. Kelson recognized International Law as a law.

 2. Pure theory of law is best for peaceful change.

3. It makes the most refined development of analytical positivism.

4. Kelson's concept of legal system is clear original and striking.

5. Kelson has explained that no law can prevail country to grundnorm or constitution.

6. Kelson's Pure Theory of Law is considered to be the most outstanding theory of law.

Criticism of Kelson’s Pure theory of law

  ‘Grundnorms’ vague And confusing- The first point in Kelsen’s theory which is
greatly criticised is his conception of ‘Grundnorm’. Though Kelsen has given its
characteristics as possessing ‘minimum effectiveness’ it is very vague and confusing
and it is difficult to trace it out in every legal system.

 Purity of norms cannot be maintained- Kelsen is criticised, again, for his reason.
First, for a proper analysis of legal norms one will have to go the ‘Grundnorm’. In
tracing the ‘grundnorm’ by applying the test laid down by the Kelsen
himself-“minimum effectiveness”- one will have to look into political and social facts.
It will cause adulteration in the ‘Pure Theory’ because the impurity of ‘Grundnorm’
would infect legal norms also which emerge out of it.

 Natural law is ignored- Some criticise Kelsen’s theory for its excluding ‘natural law’
from law. ‘Natural law’ considerably affects legal concepts and operates in the
society, and is incorporated in positive law also.

 Supremacy of international law- A more potent and substantial criticism is put

forward against Kelsen view of International law. Kelsen in his attempt to apply his
theory on International law runs into a number of inconsistencies and artificially of
their approach is exposed. His comparison of international law with primitive law is
artificiality and no juristic conclusion can be based upon it.

 No practical significance- Sociological jurists criticise it on the ground that it lacks

practical significance. Prof. Laski says, ‘Granted its postulates, I believe the pure
theory to be unanswerable but I believe also that its substance is an exercise in logic
and not in life.’ Some see Kelsen as “beating his luminous wings in vain within his
ivory tower.”

Conclusion
This concluding chapter once again takes up the question of what form of legal theory we
find in Kelsen. It argues that the Pure Theory is best understood as an attempt to find a
middle ground between natural law and legal positivism that may serve to reconnect
positivist legal thought in a distinctive and so far unexplored way with normative political
theory. The Pure Theory offers an outline for an understanding of law that is adequate to the
realization of a legitimate polity governed by the rule of democratic law.