Analytical School and Kelson's Pure Theory of Law: A Critical Analysis

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Introduction
Pure Theory of Law
Hierarchy of normative relation
Effectiveness and Validity
International law and Kelson’s theory
Application Of Kelson’s Theory In The Indian Scenario
Indian Case Analysis On Kelsonian Concept Of Law
Critical Evaluation
 
ANALYTICAL SCHOOL AND KELSON
 
Introduction
 
Kelsen, an analytical jurist, in his „Pure Theory of Law says,‟
Law is the norm which stipulates sanction. Kelsen‟s „Pure
Theory‟ is about the „hierarchy of norms. He also says about the
normative behaviour which takes validity from the „Ground
norm‟.
In his „Pure Theory of Law‟ says Kelsen, that law should be
kept pure from extra legal affairs. But Prof. H.L.A. Hart
propounded that law is Union of „Primary and Secondary
Rules‟. He also said about the minimum content of morality
within the framework of Analytical School. Here Kelsen
established the normative character of law. On the other hand
Hart gave emphasis on rule. It is core reality that Austin, Kelsen
and Hart established the coercive character of law in different
ways.
The objective and scope of the topic is very wide. A set of
behavioural norm is in every society. The normative behaviour
control and regulate the human being. The pure theory is free
from any extra-legal element and the sanction is also under the
scope of the norms.
 
Pure Theory of Law
 
Hans Kelsen, the jurist who belonged to the Vienna School, propounded the Pure Theory.
He claimed that his theory is applicable to all places and all the times. If it is observed
minutely really Kelsen theory must get the universal acceptance.
A theory of law must be free from ethics, politics, sociology, history etc; it must in other
words be „Pure‟ (rein).“Uncritically” he said, “the science of law has been mixed with
the elements of psychological, sociology, ethics and political theory.”
He sought to restore the purity of the law by isolating those components of the work of a
lawyer or judge which may be identified as strictly “legal.” Kelsen actually wants to
make the law pure and that is why he tried to cleanse of all that is changeable and he is
quite able to give this idea to search the justice. Kelsen does not bother about the
morality, political and ideological value judgement.
According to Kelsen‟s Pure theory of law, the objects of the science of law are those
norms “which have the character of legal norm, which makes certain acts legal or
illegal.” By the term norm, Kelsen means that “something ought to be or ought to
happen, especially that a human being ought to behave in a certain way.” Finally laws
being „ought‟ proposition, knowledge of law means a knowledge of „ought‟ i.e. norms
and a norm is a proposition in hypothetical form: „if X happen, then Y ought to be
happen.‟
It is very much clear that Kelsen wants to say that law is depend on condition and
consequence in a process of normative way. According  to the above discussion it is
found that the element of sanction lies on the norms but not the psychological element.
The legal norms are the valid norm and it is quite pure from extra-legal elements.
 
Hierarchy of Normative Relation
 
The science of law to Kelsen is the knowledge of hierarchy of
normative relation. He builds on Kant‟s theory of knowledge
and extends the theoretical knowledge to law also.6 For Kelsen
the law consists of norms: norms can not be derived from facts,
but only from other norms. The relationship between norm is one
of “imputation” not causality.
According to Kelsen, a dynamic system is one in which fresh
norm are constantly being created on the authority of original, or
basic, norm, a Ground norm; a static system is one which is at
rest in that the basic norm determines the content of those drives
from it in additional to imparting validity to them.
The Grund norm is the presupposition and the other norms get
validity from the Grund norm. Every country has its own Grund
norm from which the other norm is being originated. The Grund
norm is the basic norm
 
 
Kelsen recognized that the Ground norm need not be the same in
every legal order, but a Ground norm of some kind there will
always be, whether, eg a written constitution or the will of a
dictator. The Ground norm is not the constitution, it is simply the
presupposition, demanded by theory, that this constitution ought
to be obeyed. Therefore, the Ground norm is always adopted to
the prevailing state of affair. The Ground norm only imparts
validity to the constitution and all other norm derived from it.
The fact that in great Britain the fountain of validity rests with
statute, precedent and immemorial customs does not contradict
Kelsen‟s thesis, for what he contended was that a system cannot
be found on conflicting Ground norms. In Britain there is no
conflict between the authority of the crown of the Parliament,
judicial precedent and customs, they takes precedence in that
order.
Kelsen distinguishes the legal norm and normal norm. Legal
norm derives it validity from the external sources and the
particular “ought” of the legal, as distinguish from the moral
norm, is the sanction.
 
 
Kelsen found the distinction between legal and other „oughts‟ in that
the former backed by the force of the state, the preoccupation of law
being with the prospect of disobedience rather than obedience. Thus, it
is prescription of sanction that imparts significance to a norm, or
putting it in another way, „Law is the primary norm, which stipulates
the sanction.
Only in this way does, law arrive at its essential function. It is true that
in the statement,‟ if a person does X, then Y ought to happen,‟ there is
implicit the idea that a person ought not to do X if he wants to do avoid
Y, i.e. not doing X is the effective means of avoiding Y. Yet the law is
only invoked when X has been done. In this way a legal norm
prescribes conduct by attaching sanction to contrary behaviour.
Kelsen although does not define law as a command. Kelsen is of the
view that it introduce a psychological element into the theory of law
should be „Pure‟. Yet law is a rule of conduct is like Austin‟s command
whose validity is to be judge with reference to Ground norm. In this
sense Kelsen is a positivist or empiricist for as Austin law of command.
Kelsen also asserts the identity of state and law. As a political
organization state is a legal order and every state is governed by law.
The expression “government of laws” is therefore pleonasm to Kelsen.
 
Effectiveness and Validity
 
Kelsen’s effectiveness is Austin’s habitual obedience and something
more than norm application by legal organs. Minimum of
effectiveness is condition of validity for any norm to exist.
Effectiveness means a norm is applied by legal organ and obeyed
by subjects. Validity means in addition to application and
obedience, the norm ought to be obeyed and applied.
A single norm and a legal order as a whole cannot be regarded as
valid, when they cease to be effective. Effectiveness is added to the
fact of norm creation. A legal order does not lose validity because
a single norm losses effectiveness. Accordingly a norm, which is
never applied and obeyed, losses its validity.
 
International law and Kelsen theory
 
Kelsen tried to establish the supremacy of international law. On
no point the weakness and limitations of his theory are more
exposed than on this. It made him to run a number of
inconsistencies. Kelsen is out to say that the International law
should also be considered a “juridical order.” To remove the
difficulty which arises by the fact that international law does not
possess all characteristics of law, specially the ‘apparatus of
compulsion,‟ he says that it is comparable to ‘primitive law.’
As law in the beginning was in customary from without an
adequate sanction and assumed the present from after a course of
evolution, so the present international law is (like primitive law)
in its early stage, and in future it will have all the characteristics
which the modern law has so far as the „Ground norm‟ of
International law is concerned, Kelsen points out that it is in
„Pacta Sunta Servanda‟. He says that the sanctions of
International Law are war and reprisals.
 
APPLICATION OF KELSEN THEORY IN
THE INDIAN SCENARIO
 
The Indian people has their own philosophy. But if we look
minutely, we can found that the Kelsen theory is in the
Indian society as for example “Dharma.”
„Dharma‟ consist of rule of daily routine. It gives a set of
behavior to control the human society. We can say that
Dharma is the Grund norm and other norm generates from
the Dharma.
Application of Kelsen‟s Pure Theory to the ancient Indian
legal system and to British Indian legal system gives an
insights into the fundamental difference between the two
legal systems. The norm posited in the latter case is that we
ought to obey the viceroy or governor-general, who was not
responsive to Indian moral or cultural norm and ethos or to
the public opinion. The position of such a norm make the
entire system Austinian where under even the sovereign‟s
caprice can become the law.
 
INDIAN CASE ANALYSIS ON KELSONIAN
CONCEPT OF LAW
 
In the case of 
A.K. Gopalan 
v/s 
State of Madras
,  where it
interpreted the expression, “the procedure established by law” in
Article 21of the Constitution of India as any substantive or
procedural provision of enacted law.
However, in 
Maneka Gandhi 
v/s 
Union of India
,  the Supreme Court
of India adopted an interpretation which brought Article 21 of the
Constitution of India 25 into a concept of fairness, justness and
reasonableness which is not there in the word of that article.
The meaning of the definition of ‘fair, just and reasonable’ could
vary from person to person and is a reflection of ideology of an
individual which consideration if brought to bear upon the test of
constitutional validity of particular statute liable to be struck
down if it is not in conformity with the mental conception of an
individual who is the judge.
 
 
While A.K. Gopalan‟s case gave limitless power to the
law maker, Kesavanda Bharati‟s case introduced the
doctrine of basic structure according to which the term
“amendment” in Article 368 of the Indian Constitution
means addition or change within the contour of the
preamble or the constitution but not replacement of the
constitution or its basic foundation and structure.
Kelsen‟s Pure Theory provides the principle of
judgement in Kesavananda Bharati, the Grund Norm
cannot be replaced except by revolutionary methods.
Basic structure is unamenable, limitless and indivisible
like Austin‟s Sovereign. Kelsen‟s Grund Norm is
alterable by changing the presupposition.
 
CRITICAL EVALUATION
 
Some writer criticized Kelsen‟s theory is not pure because the
effectiveness of the Grund norms depends on sociological,
political factors also. Kelsen pointed out that the Grund norm is
presupposition that the constitution ought to be obeyed. Here I
think that a constitution of a country is a political document and
so the Grund norm is not pure.
Kelsen also pointed out that law should be kept-free from
morality. A general question should be raised here, whether is it
possible to keep law free from morality? Kelsen made emphasis
in the effective of law and by this way he indirectly accepted the
morality as a part of effectiveness. He also propounded that if
„X‟ happens then „Y‟ ought to be happen by this proposition he
also indirectly supported the value. Prof. Stone observes: „The
social effects and question of justice excluded, though from all
the side-doors and backdoors of his pyramid of norms, the front-
door is wider open to both.‟ 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.‟
 
 
One of the great drawback of Kelsen‟s theory that he did
not make any kind of the measure regarding the
effectiveness. There is no demarcating line under the idea
of effectiveness. Kelsen drew no distinction between
effectiveness which makes people obliged to obey and
effectiveness which makes people under an obligation to do
so.
In Kelsen theory it is significant that the state is just like a
set of human behaviour and set of social compulsion. But
in reality a state is constituted by territory, independent
government, population and ability to enter into relation to
any other state but he over looked this points. He tried to
put the idea that the state and legal orders are identical but
all legal ordered is not state like highly decentralized
ordered such as in primitive communities.
 
 
The pure theory is demanded that a Grund norm be
discovered, if there are conflicting possibilities then there
are no guidance in choosing between them. But in the
aspect of international laws there are two Grund norm one
is supreme municipal system and another is supreme
international system. So here are two conflicting supremacy
and then the Kelsen‟s theory is failure to give the guidance
regarding the conflicting Grund norm.
Kelsen‟s theory over the international law can be criticized
by this manner that international law is based on, pacta
suntan servanda‟. It is the matter of custom, good faith,
ethics etc. but Kelsen tried to keep law separate from ethics
and custom and so his theory is not a pure theory.
Regarding the sanction under international law that is the
war and reprisal is also under the custom.
 
 
According to the sociological jurist law is not a norm but social
facts. On the other hand the historical school thinks that law is
custom but not the norms.
 
Friedmann states –
 
The merciless way in which Kelsen has uncovered the political ideology
hidden in the theories which profess to state objective truth has had a very
wholesome effect on the whole field of legal theory. Hardly a branch of it,
whether natural law theories, theories of international laws, or corporate
personality of public and private law has remained untouched. Even the
bitterest of the Vienna School have concluded that it has forced legal theory to
reconsider its position.
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Kelsen's Pure Theory of Law emphasizes the hierarchy of norms and the normative character of law, free from extra-legal elements. This theory, in contrast to other perspectives like Hart's, aims to maintain the purity of law by isolating strictly legal components. Kelsen's focus on normative behavior and the cleansing of changeable elements makes his theory significant in legal philosophy.


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  1. ANALYTICAL SCHOOL AND KELSON Introduction Pure Theory of Law Hierarchy of normative relation Effectiveness and Validity International law and Kelson s theory Application Of Kelson sTheory In The Indian Scenario Indian Case Analysis On Kelsonian Concept Of Law Critical Evaluation

  2. Introduction Kelsen, an analytical jurist, in his Pure Theory of Law says, Law is the norm which stipulates sanction. Kelsen s Pure Theory is about the hierarchy of norms. He also says about the normative behaviour which takes validity from the Ground norm . In his Pure Theory of Law says Kelsen, that law should be kept pure from extra legal affairs. But Prof. H.L.A. Hart propounded that law is Union of Primary and Secondary Rules . He also said about the minimum content of morality within the framework of Analytical School. Here Kelsen established the normative character of law. On the other hand Hart gave emphasis on rule. It is core reality that Austin, Kelsen and Hart established the coercive character of law in different ways. The objective and scope of the topic is very wide. A set of behavioural norm is in every society. The normative behaviour control and regulate the human being. The pure theory is free from any extra-legal element and the sanction is also under the scope of the norms.

  3. Pure Theory of Law Hans Kelsen, the jurist who belonged to the Vienna School, propounded the Pure Theory. He claimed that his theory is applicable to all places and all the times. If it is observed minutely really Kelsen theory must get the universal acceptance. A theory of law must be free from ethics, politics, sociology, history etc; it must in other words be Pure (rein). Uncritically he said, the science of law has been mixed with the elements of psychological, sociology, ethics and political theory. He sought to restore the purity of the law by isolating those components of the work of a lawyer or judge which may be identified as strictly legal. Kelsen actually wants to make the law pure and that is why he tried to cleanse of all that is changeable and he is quite able to give this idea to search the justice.Kelsen does not bother about the morality,political and ideological value judgement. According to Kelsen s Pure theory of law, the objects of the science of law are those norms which have the character of legal norm, which makes certain acts legal or illegal. By the term norm, Kelsen means that something ought to be or ought to happen, especially that a human being ought to behave in a certain way. Finally laws being ought proposition, knowledge of law means a knowledge of ought i.e. norms and a norm is a proposition in hypothetical form: if X happen, thenY ought to be happen. It is very much clear that Kelsen wants to say that law is depend on condition and consequence in a process of normative way.According to the above discussion it is found that the element of sanction lies on the norms but not the psychological element. The legal norms are the valid norm and it is quite pure from extra-legal elements.

  4. Hierarchy of Normative Relation The science of law to Kelsen is the knowledge of hierarchy of normative relation. He builds on Kant s theory of knowledge and extends the theoretical knowledge to law also.6 For Kelsen the law consists of norms: norms can not be derived from facts, but only from other norms. The relationship between norm is one of imputation not causality. According to Kelsen, a dynamic system is one in which fresh norm are constantly being created on the authority of original, or basic, norm, a Ground norm; a static system is one which is at rest in that the basic norm determines the content of those drives from it in additional to imparting validity to them. The Grund norm is the presupposition and the other norms get validity from the Grund norm. Every country has its own Grund norm from which the other norm is being originated. The Grund norm is the basic norm

  5. Kelsen recognized that the Ground norm need not be the same in every legal order, but a Ground norm of some kind there will always be, whether, eg a written constitution or the will of a dictator. The Ground norm is not the constitution, it is simply the presupposition, demanded by theory, that this constitution ought to be obeyed. Therefore, the Ground norm is always adopted to the prevailing state of affair. The Ground norm only imparts validity to the constitution and all other norm derived from it. The fact that in great Britain the fountain of validity rests with statute, precedent and immemorial customs does not contradict Kelsen s thesis, for what he contended was that a system cannot be found on conflicting Ground norms. In Britain there is no conflict between the authority of the crown of the Parliament, judicial precedent and customs, they takes precedence in that order. Kelsen distinguishes the legal norm and normal norm. Legal norm derives it validity from the external sources and the particular ought of the legal,as distinguish from the moral norm, is the sanction.

  6. Kelsen found the distinction between legal and other oughts in that the former backed by the force of the state, the preoccupation of law being with the prospect of disobedience rather than obedience. Thus, it is prescription of sanction that imparts significance to a norm, or putting it in another way, Law is the primary norm, which stipulates the sanction. Only in this way does, law arrive at its essential function. It is true that in the statement, if a person does X, then Y ought to happen, there is implicit the idea that a person ought not to do X if he wants to do avoid Y, i.e. not doing X is the effective means of avoiding Y. Yet the law is only invoked when X has been done. In this way a legal norm prescribes conduct by attaching sanction to contrary behaviour. Kelsen although does not define law as a command. Kelsen is of the view that it introduce a psychological element into the theory of law should be Pure . Yet law is a rule of conduct is like Austin s command whose validity is to be judge with reference to Ground norm. In this sense Kelsen is a positivist or empiricist for as Austin law of command. Kelsen also asserts the identity of state and law. As a political organization state is a legal order and every state is governed by law. The expression government of laws is therefore pleonasm to Kelsen.

  7. Effectiveness and Validity Kelsen s effectiveness is Austin s habitual obedience and something more than norm application by legal organs. Minimum of effectiveness is condition of validity for any norm to exist. Effectiveness means a norm is applied by legal organ and obeyed by subjects. Validity means in addition to application and obedience,the norm ought to be obeyed and applied. A single norm and a legal order as a whole cannot be regarded as valid,when they cease to be effective.Effectiveness is added to the fact of norm creation. A legal order does not lose validity because a single norm losses effectiveness. Accordingly a norm, which is never applied and obeyed,losses its validity.

  8. International law and Kelsen theory Kelsen tried to establish the supremacy of international law.On no point the weakness and limitations of his theory are more exposed than on this.It made him to run a number of inconsistencies.Kelsen is out to say that the International law should also be considered a juridical order. To remove the difficulty which arises by the fact that international law does not possess all characteristics of law, specially the apparatus of compulsion, he says that it is comparable to primitive law. As law in the beginning was in customary from without an adequate sanction and assumed the present from after a course of evolution, so the present international law is (like primitive law) in its early stage, and in future it will have all the characteristics which the modern law has so far as the Ground norm of International law is concerned, Kelsen points out that it is in Pacta Sunta Servanda . He says that the sanctions of International Law are war and reprisals.

  9. APPLICATION OF KELSEN THEORY IN THE INDIAN SCENARIO The Indian people has their own philosophy. But if we look minutely, we can found that the Kelsen theory is in the Indian society as for example Dharma. Dharma consist of rule of daily routine. It gives a set of behavior to control the human society. We can say that Dharma is the Grund norm and other norm generates from the Dharma. Application of Kelsen s Pure Theory to the ancient Indian legal system and to British Indian legal system gives an insights into the fundamental difference between the two legal systems. The norm posited in the latter case is that we ought to obey the viceroy or governor-general, who was not responsive to Indian moral or cultural norm and ethos or to the public opinion. The position of such a norm make the entire system Austinian where under even the sovereign s caprice can become the law.

  10. INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW In the case of A.K. Gopalan v/s State of Madras, interpreted the expression, the procedure established by law in Article 21of the Constitution of India as any substantive or procedural provision of enacted law. However,in Maneka Gandhi v/s Union of India, the Supreme Court of India adopted an interpretation which brought Article 21 of the Constitution of India 25 into a concept of fairness, justness and reasonableness which is not there in the word of that article. The meaning of the definition of fair, just and reasonable could vary from person to person and is a reflection of ideology of an individual which consideration if brought to bear upon the test of constitutional validity of particular statute liable to be struck down if it is not in conformity with the mental conception of an individual who is the judge. where it

  11. While A.K. Gopalan s case gave limitless power to the law maker, Kesavanda Bharati s case introduced the doctrine of basic structure according to which the term amendment in Article 368 of the Indian Constitution means addition or change within the contour of the preamble or the constitution but not replacement of the constitution or its basic foundation and structure. Kelsen s Pure Theory provides the principle of judgement in Kesavananda Bharati, the Grund Norm cannot be replaced except by revolutionary methods. Basic structure is unamenable, limitless and indivisible like Austin s Sovereign. Kelsen s Grund Norm is alterable by changing the presupposition.

  12. CRITICAL EVALUATION Some writer criticized Kelsen s theory is not pure because the effectiveness of the Grund norms depends on sociological, political factors also. Kelsen pointed out that the Grund norm is presupposition that the constitution ought to be obeyed. Here I constitution of a country is a political document and so the Grund norm is not pure. Kelsen also pointed out that law should be kept-free from morality. A general question should be raised here,whether is it possible to keep law free from morality? Kelsen made emphasis in the effective of law and by this way he indirectly accepted the morality as a part of effectiveness.He also propounded that if X happens then Y ought to be happen by this proposition he also indirectly supported the value. Prof. Stone observes: The social effects and question of justice excluded, though from all the side-doors and backdoors of his pyramid of norms, the front-door is wider open to both. 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. think that a

  13. One of the great drawback of Kelsen s theory that he did not make any kind of the measure regarding the effectiveness. There is no demarcating line under the idea of effectiveness. Kelsen drew no distinction between effectiveness which makes people obliged to obey and effectiveness which makes people under an obligation to do so. In Kelsen theory it is significant that the state is just like a set of human behaviour and set of social compulsion. But in reality a state is constituted by territory, independent government, population and ability to enter into relation to any other state but he over looked this points. He tried to put the idea that the state and legal orders are identical but all legal ordered is not state like highly decentralized ordered such as in primitive communities.

  14. The pure theory is demanded that a Grund norm be discovered, if there are conflicting possibilities then there are no guidance in choosing between them. But in the aspect of international laws there are two Grund norm one is supreme municipal system and another is supreme international system. So here are two conflicting supremacy and then the Kelsen s theory is failure to give the guidance regarding the conflicting Grund norm. Kelsen s theory over the international law can be criticized by this manner that international law is based on, pacta suntan servanda . It is the matter of custom, good faith, ethics etc. but Kelsen tried to keep law separate from ethics and custom and so his theory is not a pure theory. Regarding the sanction under international law that is the war and reprisal is also under the custom.

  15. According to the sociological jurist law is not a norm but social facts. On the other hand the historical school thinks that law is custom but not the norms. Friedmann states The merciless way in which Kelsen has uncovered the political ideology hidden in the theories which profess to state objective truth has had a very wholesome effect on the whole field of legal theory. Hardly a branch of it, whether natural law theories, theories of international laws, or corporate personality of public and private law has remained untouched. Even the bitterest of the Vienna School have concluded that it has forced legal theory to reconsider its position.

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