ANSWER

Defining law is inherently complex due to its multifaceted nature and the diverse

perspectives from which it can be approached. Jurisprudence being the philosophy

and theory of law, is concerned primarily with both what law is and what it ought to

be. Jurisprudence is defined as the study of law which seeks to understand the

creation, application, and enforcement of laws. Thus, jurisprudence refers to the

theories and philosophies of law.

Theories of law in jurisprudence seek to explain the nature, purpose, and function of

law within society. These theories can be broadly categorized into several schools of

thought, each offering distinct perspectives on what law is and how it operates.

These schools of jurisprudence represent the different theories about the formation

and function of laws. Some of these schools include, Historical School, Natural

School, Positivist Theory of Law, Pure Theory of Law, Realist School, Analytical

School, among others. These schools represent the understanding of law according to

the perspectives of different people, and more so the views subscribed to by people in

that particular school of thought or jurisprudence. These school of thoughts or

jurisprudence can also be rightly referred to as the different theories of law.

This study aims to place particular emphasis on the Pure Theory of Law, with

reference to the front-runner of this particular school of thought, Hans Kelson, views

and denotations about law and some related concepts.

PURE THEORY OF LAW

The linchpin and central problem of jurisprudence in all its variants (legal schools) is

the task of establishing the meaning, nature and validity of law. In the naturalist

perception of law as well as in the positivist explication of law, the notion of binding
is given fundamental attention. These two jurisprudential schools taught that

obedience to the law is a necessary requirement for the stability of a legal system.

This, thus posits a relationship between law and the concept of morality. It was from

which, the philosophical jurisprudence of inseparability and separability theses was

given rise to, therewith, the question of if law and morality are conceptually, logically

and necessarily separate were raised, and also if the validating factor of law lies

outside the law was asserted.

Professor Hans Kelsen, a jurist and legal theorist, propounded the idea of a Pure

Theory of Law. His legal reasoning was fashioned after legal positivism thus he

champions the separability thesis that the connection between law and morals is only

but contingent. Thus, law and morality are separate and in any case where they

accidentally coincide they can be separated and studied in isolation.

However, Kelsen's Pure Theory of Law aimed principally to extricate law from the

theme of "is" and "ought" and introduces norm instead. In his book “Reine

Rechtslehre” first published in German in 1934 and then translated into English in

1967 as “Pure Theory of Law”, he stated thus, “that to say that ‘something exists’, is

very different from saying that ‘something ought to exist’. The first assertion is about

the current reality, the second is a normative order, or simply, a norm"

. Kelsen began his long career as a legal theorist at the beginning of the 20th century.

As regards the traditional legal philosophies at the time, Kelsen claimed, that they

were 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”.

i) Why does Kelsen refer to his theory as "pure"?

The pure theory of law is a broad theory of law that complies with legal positivism’s

principles. Its technique is structural analysis, and its goal is to comprehend the law as

it is, not as it should be. Hans Kelsen refers to his theory as "pure" because it seeks to

distinguish and separate the study of law from other disciplines, such as morality,

politics, and social sciences. His approach, known as the Pure Theory of Law, aims to

analyze law as a system of norms that is self-contained and free from external

influences. Traditional legal philosophies were hopelessly tainted, according to

Kelsen, with political ideology and moralising on the one hand, and efforts to reduce

the law to natural or social sciences on the other. Both of these reductionist initiatives

were proven to be substantially defective by him. Instead, Kelsen proposed a ‘pure’

philosophy of law that avoided any reductionism.

Kelsen’s argument claims that when natural law contains aspects of politics,

sociology, or other factors, there is no need to explain it. He felt that any potential of

morality, sociology or any other factor should be removed from understanding the

pure or natural law. As a result, the theory is known as the Pure Theory of Law.

According to Hans Kelsen, a theory of law should be “pure,” that is, free of extra-

legal influences of any type. As a result Kelsen believed in and promoted a theory that

was free of any extra-legal aspects such as sociology, philosophy, ideology,

psychology, politics, ethics, and so on. Kelsen quickly deduced that law belongs to

the human sciences rather than the scientific sciences.

Kelsen stated that the pure theory of law is so named because it exclusively describes

the law and strives to exclude anything that isn’t precisely legal from the object of this

description; Its goal is to free legal science of alien components. On the basis of two

elements, Kelsen stated that his hypothesis is pure. For example, it distinguishes

between law and fact. Second, it distinguishes between morals and law. Kelsen’s

views go counter to the notion of precedents, which states that legal ideas emerge as a

result of cases being decided. Kelsen’s pure legal theory does not represent the

realities of real-world legal systems. Kelsen’s Pure Theory of Law aimed to purge law

of all impure or foreign aspects, leaving material that is purely legal. From a legal

standpoint, the law is a standard, not an actuality.

According to Kelsen, a “pure theory of law” is one that is entirely concerned with the

part of knowledge that deals with law, including everything that does not technically

belong to the subject matter of law. Hence why he posits, a theory of law must deal

with the law as it is written, not as it should be. He further states that the philosophy

of law, should be consistent. It ought to be appropriate at all times and in all locations.

Kelsen’s idea has a wide range of ramifications. State, sovereignty, private and public

law, legal personality, right and obligation, and international law are all covered.

According to Kelsen, laws are scattered in the society which creates ambiguity in the

source of the law. There are a variety of laws and regulations which have created

inequality among the class. There is a kind of confusion in the legal system.

Therefore, Kelsen went to develop his pure principle of law to achieve uniformity.

According to him a theory of law should be uniform. It should be applicable at all

times and in all places.

Kelsen’s theory of law must be free from all social sciences viz., ethics, history,

politics, sociology, economics, etc. In other words, It must be in pure form and

completely divorced from other social sciences.

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 Century jurist, Joseph Raz, 10 consider Kelsen's theory as being

"doubly pure" Hence, it is possible to summarise that:

* The premise of Kelsen's theory is anti-natural law. All natural law theories assume a

dualism of what the Tar is and what the Jany 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.

* Kelsen believed 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. He defined law as normative science and not a natural

science.

Basically, the theory of Kelsen is about the concept of norms. According to him,

Knowledge of the law is a Knowledge of “norms”. Norm is a rule forbidding a certain

behavior. His theory is based on the pyramid structure of the hierarchy of norms

which derives their validity from the basic norm which is known as Grundnorm.

The concept of Kelsen’s theory denotes law not to be any interpretive social scientific

prism refracting the legal order as reactive adjustments to cultural context, nor indeed

any kind of revealed gospel dispensed from profound preconceptions of principles.

Kelsen endeavours to stress law as a science, this he does through teutonic

thoroughness and meticulously close, if not confusingly subtle, reasoning to give the

normative values of law a cohesive and coherent architechtonic structuralization.

Kelsen emphasizes on separation of law from politics, sociology, metaphysics, and all

other extra-legal disciplines. He defines ‘science’ as a system of knowledge or a

‘totality of cognitions’ systematically arranged according to logical principles.

Kelsen named his theory “Pure Science of Law” because science is called rational. It

must stand in a two-fold relation to its object, both theoretical and practical.

his theory of Pure Science of law is also known as the “Theory of Interpretation”

because it was a reaction against a cruel ideology which was corrupting the legal

theory and the jurisprudence of a totalitarian state. He derives pure science of law

from ‘ought propositions’ of juristic science.

In relation to morals the Pure Theory of Law rejects traditional notions of

jurisprudence and posits one criterion-beware of absolutes. He also states that law

must also be clearly demarcated from natural science. He further states that the latter

moves largely on the principle of causality while the former moves together with

social science upon the idea of imputation. Analogous to this cause, this connective

concept stands apart through involvement with human cognition. The apposition finds

reinforcement in primitive human thought patterns, which essentially personalized the

outer world and could not begin to comprehend the dualism of nature and society.

Still, the role of this cognition assumes no sovereignty.

The Pure Theory rejects the "mingling of law and the science of law" characteristic of

the realistic school of jurisprudence. The social scientist is not a social authority, legal

theory only describes while legal norms prescribe, and as a whole the law may

command but it cannot teach. Kelsen also vigorously objects to any idea of the law as
ideology, with its concomitant theoretical implication of theory as legal sociology.

The Pure Theory seeks to define and clarify, to validate rather than evaluate. Here

then the approach receives its philosophical classification and hence its name as the

objective solely seeks principally to extricate law from any concept derived from

metaphysics, politics, ethics, sociology, or the natural sciences, and pose law as

entirely self-supporting.

ii) What does he mean by a "norm"?

Hans Kelsen in his “pure theory of law” posited that law is a system of norms rather

than a set of commands and social facts. By saying that law is a norm, Kelsen

emphasized that legal rules are not descriptive statements about what happens in the

world but prescriptive statements about what ought to happen. These norms prescribe

behaviour and establish duties, rights, and obligations.

Kelsen’s theory aims to purify the study of law from other disciplines like sociology,

politics, and ethics. He argued that law should be analyzed as a system of norms, each

deriving its validity from a higher norm, ultimately tracing back to a fundamental

norm or “Grundnorm”. This foundational norm is assumed rather than derived,

serving as the basis for the validity of the entire legal system.

Law is a ‘normative science,’ according to Kelsen, yet legal norms can be separated

from scientific norms. ‘Science,’ according to Kelsen, is a form of knowledge

organised around logical principles. A norm, according to Kelsen, is a rule that

prescribes a specific behaviour. He makes a distinction between legal and moral rules.

He said that a moral standard just states “what a person should do or not do,” but a

legal norm states that if a person violates the norm, he would be penalised by the

state. Law is distinguished from politics, sociology, philosophy, and all other non-
legal sciences, according to him. According to Kelsen, an appropriate theory of law

must be pure, that is, logically self-contained and therefore not reliant on extra-legal

values, natural law, or any other external source (such as the sociological, political,

economic, or historical influence of law).

Kelsen states that human norms can at best constitute relative values, he further states

that the law must be cast in terms of norms, an "ought" that is nevertheless directed

toward an "is" of reality which must possess minimum effectiveness to be at all valid.

Hence the law must be centered about human realities, constantly keeping in mind the

two different spheres of value and reality, and relying on validity rather than truth for

measurement. The main goal of "Pure Theory of Positive Law" or "Kelsenian

Jurisprudence." is to provide a systematic approach to understanding law that is

independent of moral and political considerations. This he does by encompassing law

as norms and rules. These norms and rules guide our behaviour by informing us of

what is expected or prohibited. According to Kelsen, laws provide directives that

dictate our actions and set boundaries for our conduct. This is why he preconceives

law as a normative science and not natural science. As law is the systematic character

of a legal system consisting of rules (norms). All these rules (norms) arise from the

same basic rule/rules called grundnorm.

Normative science offers instructions on optimal behaviours and decision-making

processes for individuals, establishments, and communities to reach favourable

results; these are often rooted in moral ideals or philosophical tenets.

Kelsen described the law as ‘normative science’ as distinguished from natural science

that is based on cause and effect such as the law of gravitation. In the words of

Kelsen, “The principle according to which nature describes its object is a casualty, the

principle according to which the science of law describes its object is normativity”.
According to him, the Science of law is knowledge of what law ought to be (das

sollen) or not law is (das- sein). It is the ought character that provides normative

character to law. The idea of the basic norm is Kelsen's attempt to answer the question

of where legal validity ultimately comes from, in a legal system which can be viewed

as a set of legal norms which form a hierarchy where higher-level norms authorize the

validity of lower-level norms. Kelsen's viewed the central issue of any theory of

law as that of explaining where the notion of "legality" and the normativity of the law

comes from. Why are certain words and actions interpreted as "law" and others are

not? In particular, he wanted to do so in a "pure" fashion, that is, without recourse to

outside support from jurisprudence, or from "legal science". Kelsen viewed the law as

a scheme of interpretation whose reality existed in meaning itself.

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.

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. This systematic unity Kelsen meant to capture by the

following two postulates:

1. Every two norms that ultimately derive their validity from one basic norm belong

to the same legal system.

2. 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”. 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. 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.

iii) Explain the concept of "Hierarchy of Norms"

As a landmark in the development of modern jurisprudence, the pure theory of law

defines law as a system of coercive norms created by the state that rests on the

validity of a generally accepted Grundnorm, or basic norm, such as the supremacy of

the Constitution. The hierarchy of norms, or hierarchy of laws, is an analysis which

views laws as occupying a hierarchy in which laws base their validity upon a higher

level norm, and so on, forming a hierarchy, such that laws are validated in a

regression of validity ending in the Constitution. The hierarchy concept is often

referred to in French legal texts, and is often visualized and named "Kelsen's

pyramid". Kelsen argued that the validity of law is necessarily located in terms of

other higher laws from which it is derived. Kelsen proposed that there is a hierarchy

of laws or norms, at the zenith of which is a 'grundnorm' or basic norm. This

grundnorm is the ground, the root and seat of all laws. “The norms themselves
become more concrete as one descends the hierarchy, this is the concretization of

norms”. By this tokenism, extra-legal variables like morals, social and political

considerations are hence inconsequential to the validity of legal norms. In a legal

system, there is this chain of authorization or authentication and at the end of this

chain is the fundamental norm. According to this theory, Kelsen considered legal

science as a pyramid of norms with (Grundnorm) basic norms at the apex.

In this hierarchical order superior norms have control over the norms subordinate to

them. In this process norms proceed from downwards to upwards and derive their

power from the norm immediately superior to it until it reaches the grundnorm, which

has been termed as “concretization” of the legal system.

A legal order, according to Kelsen, is made up of norms arranged in a hierarchical

sequence, with one norm positioned above another and each norm getting its validity

from the norm above it. The legal order is symbolised by the hierarchy, which takes

the shape of a pyramid. As a result, the last level is the greatest norm, known as the

fundamental norm or Grund Norm, emerges, which serves as the foundation for all

future norms. The Grund norm is the cornerstone of Kelsen’s ideology. The Grund

norm can be used to determine the legality or validity of any norm. The Grund norm’s

validity cannot be objectively assessed. The Grund norm serves as a common

reference point for the validity of the positive legal order, or all of the legal system’s

norms. The Grund norm must be effective, that is, it must be followed by the general

public. The validity of the Grund standard is referred to as efficacy.

Kelsen rightly noticed that legal norms necessarily come in systems. There are no

free-floating legal norms. These legal systems are themselves organized in a

hierarchical structure, manifesting a great deal of complexity but also a certain

systematic unity. This systematic unity Kelsen meant to capture by the following two

postulates:

1. Every two norms that ultimately derive their validity from one basic norm belong

to the same legal system.

2. 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.

Also, according to Kuku, by the pure theory, Kelsen aimed to describe law as binding

norms. Central to the pure theory is the notion of a basic norm (grundnorm), a

hypothetical norm, presupposed by the jurist, from which in a hierarchy of lower

norms in legal system proceeds; beginning with constitutional law, are understood to

derive their authority or legality. In this way, Kelsen contends that the legality of legal

norms, their peculiar legal character, can be understood without recourse to some

supra-human sources such as God. This approach sought to strip all subjective

considerations of law in the interest of objectivity. In postulating the pure theory, one
of the most daunting challenges of Kelsen was to “provide an explanation of legal

validity and legal normativity without an attempt to reduce jurisprudence to other

domains.” Hence he states that pure theory of law is a theory of positive law; a

general theory of law, not a presentation or interpretation of a special legal order.

From a comparison of all the phenomena which go under the name of law, it seeks to

discover the nature of law itself, to determine its structure and its typical forms,

independent of the changing content which it exhibits at different times and among

different peoples. In this manner it derives the fundamental principles by means of

which any legal order can be comprehended. As a theory, its sole purpose is to know

its subject. It answers the question of what the law is, not what it ought to be. The

latter question is one of politics, while the pure theory of law is science.

iv) What is Kelsen's view on "Sanctions"?

In Hans Kelsen's Pure Theory of Law, sanctions play a crucial role in understanding

the nature and function of legal norms. Kelsen views sanctions as essential to the

concept of law because they provide the mechanism by which legal norms are

enforced. Kelsen uses sanctions to emphasise the law’s coercive aspect. Because it

brings a psychological aspect into a theory of law, Kelsen rejects Austin’s

interpretation of sanction, which views it as a mandate from the Sovereign. As a

result, he favours Grundnorm, which gives legislation legitimacy. Its authoritative

character lends credibility to any legal system. The Grundnorm’s sanctioning

authority makes it applicable to all other laws. According to Kelsen’s study of the

sanctioned view of the law, legal norms are articulated in the form that if a person

does not follow a certain ban, the courts must impose a punishment, whether criminal

or civil. Kelsen defines a sanction as a coercive act prescribed by a legal norm that is
to be applied in response to a violation of that norm. In his view, legal norms are

essentially norms that prescribe sanctions for non-compliance. The possibility of

coercive enforcement distinguishes legal norms from other social norms, such as

moral or customary norms.

In Kelsen's hierarchical structure of legal norms, each norm derives its validity from a

higher norm. Ultimately, this chain of norms leads to the Grundnorm (basic norm),

which is the foundational norm that gives validity to the entire legal system. Within

this framework, the enforcement of sanctions ensures the efficacy of the legal system

by compelling compliance with legal norms. Kelsen's Pure Theory posits that the

legal order is fundamentally a system of norms that regulate behavior by stipulating

sanctions. This system is unified by the concept of a basic norm and operates through

the imposition of sanctions for violations. Thus, the legal order is seen as a coercive

order where the threat and application of sanctions are central to its functioning.

For Kelsen, the concept of a legal obligation is inherently linked to the notion of

sanctions. A legal obligation exists when a norm prescribes a specific behavior and

stipulates a sanction for non-compliance. The threat of a sanction creates an

obligation to follow the prescribed behavior, making the norm effective. Kelsen

further distinguishes legal sanctions from moral and social sanctions by their formal

and institutional nature. Legal sanctions are imposed by state authorities according to

prescribed procedures, whereas moral and social sanctions are informal and arise from

societal or communal pressures. This formalization and institutionalization of

sanctions are what give the legal system its distinctive character.

Kelsen views coercion as a necessary element of legal order. The threat and

application of sanctions are mechanisms through which the legal system maintains

social order and resolves conflicts. Without the coercive element, Kelsen argues, the
legal system would lack the means to ensure compliance and uphold its norms. Kelsen

thus posits that sanctions are integral to the concept of legal norms and the

functioning of the legal system. They provide the coercive force necessary to enforce

compliance, thereby distinguishing legal norms from other types of norms and

maintaining the effectiveness and authority of the legal order.

Kelsen viewed law as a coercive order of human behavior. Laws "command a certain

human behavior by attaching a coercive act to the opposite behavior." He disagreed,

however, with the belief of John Austin, who posited laws to be "a species of

commands,"since a command "is essentially a willing and its expression," and

because it is doubtful whether some laws embody the true will of anyone. Kelsen also

disagreed with Austin's position that “laws are enforced by a specific authority.”

Understanding this to mean that the threat of sanctions commands obedience, Kelsen

noted that fear of sanctions is often not the primary motive for obedience to law. In

any event, Kelsen considered the reason why law is obeyed to be a problem of

sociological, not analytical or normative jurisprudence. The latter can only affirm that

the law sets up coercive measures as sanctions that are to be directed under definite

conditions against definite individuals. Kelsen thus eliminated what he perceived as

the often fictional psychological content from the definition of law. Law consists not

of the will of one person or group enforced upon others through fear of sanctions, but

merely norms which provide that persons ought to act in specified ways. If they do

not, others should employ sanctions against them. Furthermore, Kelsen observed, the

norms providing that persons ought to act in specified ways are unnecessary.

In the view of Kelsen, laws are essentially standing instructions or directions

instructing officials on the application of sanctions in particular circumstances. He

maintained that in any given instance (case), it would be much more appropriate to
concentrate on the direction to the official as to the sanction, rather than on the 24

offence or the offender. Contrary to Austin's view, the point Kelsen is making is that

the principal attention of the legal scholar should not be focused on the mere fact that

an official is under a duty to execute or enforce law, but it should also be imperatively

focused on the fact that he/she has the power and discretion to do so in the given case.

Kelsen saw coercion or sanction as important to law, yet he rejected the idea that

sanction is an essential validating element of law. Consequently, the most

controversial aspect of Kelsen's immaculate theory of law is his thought on what

constitutes the validating basis of law. Without mincing words, Kelsen argued that the

validity of law is necessarily located in terms of other higher laws from which it is

derived.

v) Explain the concept of the "Grundnorm" and identification of state and

the Law"

The "Grundnorm," or "basic norm," is a foundational concept in Hans Kelsen's Pure

Theory of Law. It serves as the ultimate source of validity for the entire legal system.

The Grundnorm is a hypothetical, fundamental norm that underpins the validity of all

other norms in a legal system. It is not a norm that is enacted or enforced by any

authority; instead, it is presupposed. It provides the foundation upon which the

hierarchy of legal norms is built. It is the starting point from which the legitimacy of

all other norms is derived. In Kelsen's theory, legal norms are arranged in a

hierarchical structure where each norm is validated by a higher norm. This chain of

validation continues upward until it reaches the Grundnorm. It gives legitimacy to the

constitution, which in turn validates laws and regulations, creating a coherent and

structured legal system. The Grundnorm is not a written or enacted law but a
presupposition necessary for the legal system to function. It is assumed to exist to

make sense of the normative structure of the law. Kelsen introduces the Grundnorm as

a theoretical construct to explain how legal systems maintain their coherence and

authority.

Kelsen’s pure theory of law features a pyramidal hierarchy based on the grundnorm as

the foundational norm. Grundnorm is a German term that means “fundamental norm.”

He defines it as “the assumed ultimate rule by which the norms of this order are

constituted and annulled, and their validity is received or lost.” The grundnorm

establishes the content and verifies additional norms that are derived from it. But

whence it gets its legitimacy was a question Kelsen refused to address, claiming it to

be a metaphysical one. Kelsen suggested Grundnorm is a work of fiction and not a

hypothesis.

According to Kelsen, unlike some of the other norms, the basic norm cannot be

explained by referring to certain other or more validating laws. Instead, it may draw

its legitimacy from the fact that it has been recognised, acknowledged, and accepted

by a significant number of people inside the political unit. As a result, the law cannot

be separated from the state’s organised structure and authority. Because this structure

is normative, the concept of sanctions, which plays a rather unique role in Austinian

doctrine as the element that makes law functional, depends on other forces such as

prosecutors, officials, and judges to undertake their aspects of the normative structure

before sanctions are activated and inflicted.

The Grundnorm is the beginning point for a legal system, and it is from this point that

a legal system grows more complex and specialised as it evolves. This is a fluid

situation. The grundnorm, which is self-contained, is at the summit of the pyramid. In

a hierarchical structure, subordinate standards are governed by norms that are superior
to them. The system of norms progresses from downwards to upwards and finally

closes at grundnorm. According to Kelsen, the Grundnorm may not be the same in

every legal system but it is always there, either in the form of a written Constitution or

the will of the superior. Grundnorm is no longer a hypothesis but a fiction of law.

We cannot say whether Grundnorm is good or bad without testing it politically,

religiously, and ethnically.

In Kelsen’s legal doctrine, he states that the concept of the basic norm or

“grundnorm” serves three theoretical functions in his legal doctrine, and these specific

functions include to:

i. ground a non-reductive explanation of legal validity.

ii. ground a non-reductive explanation of the normativity of law

iii. explain the systematic nature of legal norms.

As stated earlier, The idea of the grundnorm is the presupposition of the legal validity

of the first constitution. This presupposition according to him is an expedient guide

against living an entire legal system baseless or without authority.

The idea of the grundnorm is based on Kelsen's belief in the systematic nature of law.

He expatiated this thus:

“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.”
By this he implies that every two norms that ultimately derive their validity from one

basic norm belong to the same legal system and also that all legal norms of a given

legal system ultimately derive their validity from one basic norm.

A practical example to explain the ideas expressed above for a better understanding of

Kelsen's chain of authorization could perhaps be a case where one speaks of the

Nigerian legal system, Ghanaian laws, or French law, such persom does not so speak

merely because these are independent countries with their extant laws respectively,

moreover, one can rightly distinguish these independent legal system based on the

empirical fact that these countries have distinct legal systems exhibiting a certain

cohesion and unity.

Be that as it may, inquiries were risen concerning what higher legal norm validated

the Grundnorm? For instance, What other higher legal norm validated the very

first Constitution Nigeria had? With regard to this question, Kelsen has this to say:

“One must presuppose the legal validity of the Constitution. At some stage in every

legal system, one can get to an authorizing norm that has not been authorized by any

other legal norm, and thus it has to be presupposed to be legally valid.”

The normative content of this presupposition is what Kelsen has called the basic

norm. The basic norm is the content of the presupposition of the legal validity of the

first historical Constitution in the case of Nigeria and as in other climes (or of the 58

relevant legal system). From the analysis of the chain of authorization above, one can

aptly deduce that in Kelsen's view, “The idea of a basic norm is a logical necessity 59

for the ultimate validation of a legal system”. Now, the question that Kelsen and

probably those sympathetic to his course should answer is, if the idea of a basic norm

is a logical imperative, why then did he rejected the idea of natural law which can also

be considered as a logical imperative to account for the authentication of positive

laws? Until this question is answered, one may be apt to consider Kelsen's rejection of

the legal naturalist inseparability thesis as instigated by double standard and

unfounded aversion.

In assessing the implications of Pure Theory of Law, Kelsen stated that there’s no

difference between Law and the State. Kelsen addresses the relationship between the

state and the law, proposing a unique perspective on their identification. He states that

the state is essentially a legal order. The state does not exist independently of the legal

norms that constitute it. Instead, it is an organization of norms regulating human

behavior. The state and the law are identified in the sense that the state is defined by

its legal order. To understand the state, one must look at the system of legal norms

that comprise it. The state is seen as a normative framework that governs the actions

of individuals and institutions within its jurisdiction. It is the system of laws that gives

the state its structure and authority. The state's coercive power, which enforces legal

norms, is a key aspect of its identification with the legal order. The state's authority is

derived from its role in enforcing the legal system.

In Kelsen's view, there is no dualism between the state and the law. They are not two

separate entities but a single system of norms. The state's existence and identity are

fully encompassed by the legal order. Also the monistic approach adopted by Kelsen

emphasizes that political and legal structures are unified through the system of norms

that constitute the state.

As regards features of a state, such as legitimacy and sovereignty, the legitimacy of

the state arises from its legal order. The state is legitimate to the extent that it operates

in accordance with the legal norms that define and regulate it. Sovereignty is

understood as the ultimate authority of the legal order. In Kelsen's theory, sovereignty
is not a personal attribute of a ruler or a government but a characteristic of the legal

system itself. Kelsen rejects the sovereign’s existence as a distinct entity. He also

disputes the existence of the state as a separate entity from the law. In its ideal form,

the state would be neither more nor lesser than the law, an object of normative juristic

knowledge. A system of normative connections is referred to as a law. All legal

personality is created artificially and derives its legitimacy from a higher standard.

According to Kelsen, the idea of a person is nothing more than a phase in the

concretization process. The most important aspect of Kelsen’s philosophy is that the

state is regarded as a “system of human conduct and a compulsive order.” Kelsen

further argued that because legislative, executive, and judicial systems all create

norms, there is no distinction between them. For Kelsen, the distinction between

procedural and substantive law is a matter of degree, with the procedure taking

precedence. The state is, in actuality, a mechanism that regulates social behaviour in a

normative order. However, only a judicial system can uncover such a scheme. In

reality, law and state are the same things, and the distinction arises because we study

them from two different perspectives.

In Kelsen’s General Theory of Law and State. He stated that the authority to make

law derives from a presupposed basic norm. It has been suggested that by blandly

suggesting that this basic norm must be 'presupposed to be binding' Kelsen avoids the

most important problem in legal philosophy. By presupposing the basic norm to

provide unity to the legal order, Kelsen eliminated from his theory of law the concepts

of sovereignty and state as existing apart from the law. He stated thus:

“Law and state are usually held to be two distinct entities. But if it be recognized that

the state is by its very nature an ordering of human behavior, that the essential
characteristic of this order, coercion, is at the same time the essential element of the

law, this traditional dualism can no longer be maintained.”

By subsuming the concept of the state under the concept of a coercive order which

can only be the legal order, by giving up a concept of the state distinct in principle

from the concept of law, the pure theory of law realizes a tendency inherent in the

doctrine of Austin.

vi) How does Kelsen's concept of law differ from John Austin's?

Hans Kelsen's concept of law and John Austin's concept of law are both foundational

to legal positivism, but they differ significantly in their approaches and underlying

principles. Austin defines law as the command of the sovereign, backed by the threat

of a sanction. For Austin, laws are rules laid down by a political superior (sovereign)

to political inferiors (subjects), and they must be obeyed. According to Austin, a law

consists of three elements: a command, a sovereign, and a sanction.

However, Kelsen defines law as a system of norms, where each norm is a rule

prescribing certain behavior. These norms are not commands from a sovereign but are

part of a hierarchical structure culminating in a Grundnorm (basic norm). Kelsen’s

legal system is structured in a hierarchy, where each norm derives its validity from a

higher norm, ultimately leading to the Grundnorm.

The main purpose of John Austin's work in the philosophy of law is to describe the

boundary around the subject of jurisprudence and to define the appropriate matter

which comes within the scope of jurisprudence. He defined law as the command of a

sovereign backed by sanction. Kelsen filled in the gaps left by Austin’s theory and

adopted a different approach. On the other hand, Kelsen maintained that the theory of

law must be free from ethics, politics, sociology and history. Therefore, he tried
to restore the purity of the law by isolating those components. He maintained that the

law consists of norms and norms cannot be derived from facts rather only from other

norms of higher level. Also as regards source of validity, Austin states that the

validity of a law comes from the command of the sovereign. The sovereign is a person

or body that is habitually obeyed by the majority of society and does not obey any

higher authority. Austin’s theory is rooted in the empirical reality of power and

obedience within a society. Kelsen on the other hand argues that the validity of legal

norms is derived from their position within the hierarchical legal system, ultimately

grounded in the Grundnorm. The Grundnorm is a hypothetical construct that

underpins the validity of the entire legal system. Kelsen’s theory is based on a

normative, rather than empirical, foundation. The Grundnorm is presupposed as the

basis for the validity of all other norms in the legal system.

Kelsen views laws as norms, these legal norms are prescriptions for behavior that are

part of a broader normative system. Sanctions are part of these norms, but they are not

commands; rather, they are conditions for the application of legal consequences.

Legal norms, for Austin, are commands issued by the sovereign and enforced through

sanctions. This implies a direct relationship between the sovereign’s will and the law.

Under Austin’s command theory, Law is seen as a series of imperatives that are to be

followed by subjects under the threat of punishment.

The Pure Theory of Law is a theory of positive law but not the positive law of

a particular legal system but a theory of pure law (general legal theory). As

a theory whose main goal is knowledge of the subject, namely answering the

question of what law is and how the law is made. Or the question of what law

should be and how it should be made (Kelsen, 2005, pp. 17–23). So that law

should be separated from justice so that it can be called positive law and will
become the true purity of law. Pure law is legal science and not legal policy

(Kelsen, 2012, p. 127).

Pure legal theory gathers explanations, that law is a necessity that regulates

human behavior as rational beings, in short, that it is not how the law should be,

but what the law is. So should be clean of analyzes other than law (non-juridical)

such as sociological, political, historical, and ethical. Because the law deals with

the form and not the legal content, the content of justice as the

content of the law remains outside the law. This is because the contents of the

law can be unfair, but the law is still the law because it has been issued by the

authorities. This is strengthened, that positive law can become something that is

no longer effective because the interests of the regulated community no longer

exist, so the authorities should not force its implementation.

Notwithstanding Hans Kelsen modeled the pure theory of law after legal positivism,

Kelsen and Austin’s theory differ at many points:

4.1. Norm and Command

Austin in its imperative theory of law defined law as a command of sovereign

punishable if disobeyed. He ignored the normative essence of legal principles and

rules. On the other hand, Kelsen rejected the idea of command of the sovereign and

introduced a psychological element into the theory of law which he regarded as pure.

He asserted that de-psychologized command which does not imply a ‘will’ in a

psychological sense of the term. According to him a rule is an expression that

somebody ought to act in a certain way without being really concerned of who really

wants him to do so. Austin’s ideas are more subjective and introduced a political

element in the concept of law and defines law in terms of its source i.e. leader a
sovereign. Kelsen negated the idea and expressed that jurisprudence has to do nothing

with the source of law, it does not matter if it is from sovereign or custom or any

other source.

4.2. Legal Dynamics

Austin in its theory did not explain the dynamic process of law that exists throughout

the hierarchy of norms flowing from the Constitution whether codified or not. While

Kelsen explained at each level of the hierarchy the content of norms may be

developed on the basis of higher norms which is thoroughly a dynamic principle.

4.3. Methodological Approach

Austin’s approach is analytical, focusing on the logical structure of legal concepts and

the relationship between law and sovereign power. Also, his theory is grounded in

empirical observation of social and political structures. On the other hand Kelsen’s

approach is more formalistic and aims to create a "pure" science of law. He

emphasizes the normative aspect of law and the logical structure of legal systems.

His theory is rooted in the normativity of law, emphasizing the prescriptive nature of

legal norms over empirical observations.

4.4. Dualism between State and Law

Austin framed dualism between the sovereign state and the legal order in which he

placed law subordinate to the sovereign. He upheld that the law emanates from the

sovereign therefore, it cannot control the sovereign. But Kelsen described state as

merely the personified expression of the legal order which is governed by law. He

defined State as a package of norms ordering compulsion and thus coextensive with

the law. Austin theory found it difficult to treat Constitutional law which binds the

State being law of strictu sensu nature while the Kelsen theory gives a clear reply.
Where Austin says law as a creature of State creates, Kelsen maintained that law

regulates its own creation.

4.5. Sanctions

Both Kelsen and Austin considered coercion as an essential feature of law. The

conflict is a point of motivation by fear which is upheld by Austin and rejected by

Kelsen. Austin placed sanction outside law but source of its validity. On the other

hand, Kelsen maintained that sanction itself is the operation of rules of law. Where

one rule prohibits theft and multiple other rules provide for sanctions and procedure

so as per Kelsen a distinction cannot be established between law and sanction. Kelsen

only expressed one distinction that laws at lower level possess the attribute of

sanction but not in laws at higher level.

In summary, while both Kelsen and Austin contribute to legal positivism, Kelsen's

concept of law focuses on a hierarchical system of norms grounded in a Grundnorm,

with a strict separation from morality. In contrast, Austin's concept is based on the

commands of a sovereign backed by sanctions, with an empirical approach to the

structure of legal systems. In a nutshell, it can be concluded that Austin’s imperative

theory of law and Kelsen’s pure theory of law, both have made a great contribution in

jurisprudence by presenting the most logical explanation of law. John Austin gave

alternate ideology to both natural law and utilitarian approaches to law while Kelsen

formulated a theory of law free from political ideology and moralization. Both

adopted analytical positive approaches in compilation of their work. Austin defined

law as the command of a sovereign backed by sanction while Kelsen maintained that

the law consists of norms and norms cannot be derived from facts rather only from

other norms of higher level.

Name: Carson David

Matric No: LAW/2017/125

Course Title: Jurisprudence & Legal Theory II

Course Code: JPL 402