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er
[JURISPRUDENCE]
Jamia
Millia KELSENS THEORY OF LAW
Islamia
Iram
Peerzada
Acknowledgement
Before I start off on this endeavor that has been given to me as the
Islamic law project in the fourth semester of this joyful ride that I have
undertaken under the flagship of The Faculty of Law, Jamia Millia
Islamia, I would like to thank everybody who has been instrumental in
my successful completion of my projects.
First, I would like to acknowledge the immense contribution that my
professor of jurisprudence, Dr. Eqbal Hussain, has had on this project. By
creating the basic framework of the subject in my mind through his
excellent lectures he also contributed in the creation of the basic
framework and limitations of my topic in my mind.
Next, it would be my duty to thank the excellent library staff in the
Faculty of Law, Jamia Millia Islamia for their never ending readiness to
help anyone in finding exact readings for any such subject that he/she is
researching.
Lastly, I would like to thank my classmates who never backed off when I
needed them to clarify any concept that I couldnt catch during the
process of the class.
INTRODUCTORY REMARKS
It is said that Kelsens contribution in the development of Analytical
Positivism is a big zero as he repeats the things of Sovereignty of John
Austin and the Rule of Recognization of Prof. Hart with the changing
phraseology of Grund Norm of his own.
In the backdrop of above observation the researcher would like to
highlight the contribution of Kelsens Pure theory of law in the
development of Analytical Positivism and its core reality.
Before entering into Kelsen thesis on Pure Law Theory, the researcher
would like to put the differentiation between the natural law school and
analytical positivism school.
The natural law school deals with the concept of law of nature. It is about
the God made law. It also says about the value, ethics, morality and
supernatural aspect. It also deals with the idea of reason. Basically natural
law school indicates the ought proposition.
But the analytical positivism school does not concentrate about the
ought proposition, value judgement and theological affairs. The
analytical positivism school takes the is proposition and tries to
establish the scientific temper in a logical manner. According to Austin,
Law is command of Sovereign backed by sanction. It is authority
supportive that sovereignty must be obeyed and must not be challenged.
Kelsen, an analytical jurist, in his Pure Theory of Law says, Law is the
norm which stipulates sanction. Kelsens 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.
The research work has been done with the help of doctrinal method which
carries the legal structure, case analysis and the legal framework.
BIOLOGICAL SKETCH
Hans Kelsen The Austrian jurist was born at Prague in 1881 and was
Professor of Law at the Vienna University. He was the judge of the
Supreme Constitutional Court of Austria 1920-30. Subsequently, he came
to England and in 1940 he moved to United States and became Professor
of Law in several American Universities. Of late he was emeritus
Professor of Political Science of the University of California where he
expounded his Pure Theory of Law in the twentieth century which has
evoked world wide interest. Kelsen has been the author of several works
of Austrian Constitution (1920), General Theory of Law and State
(1945), The Pure Theory Law (1934) revised (1960), Principle of
International Law (1952), What is Justice (1957), and many other works.
Kelsen has opposed with determination the tendency on the part of jurists
to broaden the scope of jurisprudence to embrace all social sciences and
has rigidly advocated the separation of law from metaphysics, politics
and sociology. He is disgusted at politics in masqueradings as
jurisprudence. Like John Austin in the nineteenth century Kelsen
challenges both the philosophical and natural law theories of law. He
owed his fame chiefly due to the Pure Theory of Law or the Doctrine of
Pure Law divested of all extra-legal and non-legal elements.1
3
4
. Rakesh Kumar, Structural Analysis of the Indian Legal System Through the
Normative Theory. (1999) Journal of the Indian Law Institute. Vol. 41: 3&4 at 501.
. RMW Dias, Jurisprudence (New Delhi: Aditya Book Private Limited, 1994) at 351.
. Edgar Bodenheimer, Jurisprudence (Delhi :Universal Law Publishing Co. Ltd, 2004)
at 101.
Ibid.
8
9
10
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.11
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.12
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.13
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 Austins 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.14
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.15
12
13
14
15
. W. Friedman, Legal Theory ( Delhi: Universal Law Publishing Co. Pvt. Ltd , 1967) at
276.
. RMW Dias,Supra note 3 at 366.
. Ibid.
. Prof. S.N. Dhayani, Jurisprudence and Indian Legal Theory (Allahabad: Central Law
Agency, 2002)at58
RMW Dias,Supra note 3 at 103.
.
.
18
.
19
.
16
17
. Ibid.
21. Means Righteousness (Dharma) is that which sustains the people or that which is
adopted by meritorious souls.
22
.
Rakesh Kumar,supra note 2 at 510.
23
.
1950 S.C.R. 525.
24
.
1978 A.I.R. 597.
25
24. Article 21.Protection of life and personal liberty.-No person shall be deprived of his
life or person liberty except according to procedure established by law
20
21
27
Austin ignores (so Kelsen says) the dynamic process of lawcreating which occurs throughout the hierarchy of norms, and which
derives from the constitution, whether written or unwritten. At each level
of the hierarchy the content of norms may be developed on the basis of
higher norms, and this, says Kelsen, is a thoroughly dynamic
principle.28
Austin creates a dualism between the sovereign (or state) and the legal
order. But the state is merely the personification of the legal order, and
the sovereign merely that orders highest organ. Sovereignty is intended
to imply that no higher order is assumed, such as an international order,
but within the system of norms there is nothing stipulating that the
sovereign must be free from legal limitation. Moreover, Austin makes the
cardinal error of basing the validity of his legal order (or sovereignty) on
a factual situation, viz., habitual obedience, and ignores the logical
objection to basing the validity of a norm on anything but another norm.29
Hart has been anti-Austinian who has rejected the Austinian model as it is
exclusively based on the triology of command, sanction and sovereign
which Austin described30 as key to the science of jurisprudence. Such
pattern, says Hart, is exclusively applicable to criminal pattern of law and
is inapplicable to modern legal systems. Harts analysis of legal system is
quite elaborate and sociological and not merely a kind of command or
orders of gunman or gangster. In place of Austins monolithic legal
structure Hart provides a dual system of law consisting of two types of
rules which he describes as primary and secondary rules. Primary rules
are those which lay down standards of behaviour and are rules of
obligation that is the rules which impose duties. The Secondary rules,
on the other hand, are such rules which specify the rules in which primary
rules may be ascertained, amended, rescinded and enforced. The addition
of secondary rules to a set of primary rules is, says Hart, a step forward
as important to society as the invention of the wheel. It is this step which
Hart declares as the step from pre-legal into the legal world. The
combination of primary rules of obligations and the secondary rules of
recognition, says Hart, is the Key to the science of Jurisprudence. Thus
it is the union of primary and secondary rules which constitute the core of
the legal system and can be justly regarded as the essence of law.31
.
.
30
.
31
.
28
29
Ibid.
Ibid.
71 HLR, p. 593.
S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach, supra note 1 at 61
Ibid, p. 62.
Ibid.
M.D.A. Freeman ,supra note 7 at 353.
CONCLUDING REMARKS
The researcher has already accepted the contribution of the juristic works
of Kelsen and the researcher would like to criticize Kelsens thesis in this
concluding part of this project.
Some writer criticized Kelsens 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 the researcher thinks 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 Kelsens 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
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BIBLIOGRAPHY
1. Pure theory of lawBy Kelsen