Introduction:
Hans Kelson is an eminent jurist of Analytical School of Jurisprudence. He is celebrated for his work ‘Pure Theory of Law’. He was of Austrian origin and taught at Vienna University. In the decade of 1920, Kelson served as a judicial officer for Supreme Constitutional Court of Austria. After gaining the judicial experience, he set his foot towards Great Britain. After study the common law and customs prevalent in the European continent, he moved to the USA. In the USA, he resumed his professorship at various American Universities. Additionally, he authored many books. As Emeritus Professor in Political Sciences, he propounded his great work, PURE THEORY OF LAW. This theory is known to be Kelson’s contribution to the legal fraternity.
Theory[1]
Kelson through his theory prohibited widening of the scope of jurisprudence and it’s comprehensive study with other social sciences. He rigorously insisted to study law without co-relating with politics, sociology and other metaphysics.
The 19th-century jurisprudence under Austin stressed on the study of law not in the watertight compartment but along with other social sciences. Kelson, therefore, is appreciated as he stopped jurisprudence to lose it’s essence to vague mysticism.
Kelson divested morals, ethics or ideals from law and attempted to make it a pure science. By pure science, it is intended devoid of morals and sociological elements. He criticized Austin’s law as a command because they were of a subjective nature and he always wanted the law to be objective. On the matter of justice, he said that such notions are paramount as laws may exist and continue even though not just to a class.
He considered Science as a system of knowledge and totality of cognition systematically arranged according to logical principles. Kelson’s grundnorm is based on the lines of Austin’s Sovereign who makes law binding and obligatory. Thus making it a law of positive nature based on norms eliminating extra-legal and non- legal element. The uniformity of law was one of the elements of this legal theory.
The theory of interpretation was a sword against the corrupting theories and jurisprudence of totality. The name PURE THEORY imply scientific nature, rationality, determination of conception of object and establishment of reality.
Grundnorm
The pyramid of the hierarchy of the norm to determine the validity of a norm is Grundnorm. Thus it is the basic norm which determines the content and gives validity to the norms derived. But Kelson was silent as to the procedure to determine the validity of Grundnorm. He considered the validity of Grundnorm as metaphysics which no jurist should intervene with. Great Jurist Julius Stone while comparing the grundnorm with Austin’s Sovereign consider the grundnorm as fiction[2]. The sovereign is a starting point for any law but grundnorm are some pre-decided set of principle which can not be checked on any barometer by any jurist.
The Hon’ble Supreme Court of Pakistan while determining the validity of the revolutionary government put reliance on the validity of grundnorm. The questions were based on the validity of a government who overthrew the previous government and destroyed the existing constitution.[3] Such a government is invalid. As in 2007, Military General Musharraf’s Government overthrew the Nawaf Shariff’s government by Military coup. Pakistan then witnessed the resignation of the president and handing over of Constitution. The PM was locked and Judges were made to take new oath in allegiance to the new military Government. The drawback of this theory can be clearly seen as the grundnorm wasn’t stable and it changed with the whelms and capricious of the men in power. [4]
The 2013-2015 conflict between governments of North and South Korean too put grundnorm into jeopardy.
The abovementioned instances clearly show that the grundnorm isn’t stable and during revolutions or political changes in the set up of the state, there is extravagant power given to men in power for determining legal expectancy in regard to the context of contemporary legal systems.
Although stress is placed that the grundnorm need not to be uniform but their mere presence in any form is suffice. Some common forms of grundnorm are written constitution, rules under various laws, uncodified customs or even will of a dictator.[5]
Pyramid of Norm
The legal science behind norms was formally known as the pyramid of norms. The basic functioning can be understood as control of superior norms in the hierarchy over subordinate norms. The tip or basic norm is the grundnorm. The nature of tip norm or apex norm is independence or any other norm in the pyramid. The concretization of the legal system is the term usually used for the Grundnorm. The systems to govern norms start from downwards and at last climb up to the destination of Grundnorm finally. Thus the grundnorm is thus the norm creating the organs of lawmaking system. This creator norm can’t be ever put on scientific scrutiny.
The best example to understand the foregoing is, all laws are made by legislative and are tested on the yardstick of the Constitution. Even the legislative organ is too made by the constitution. But there is no law which provides any rules to validate the Constitution.
The grundnorm consequently, under Kelsonite Conception, is not dependent on anything for their legitimacy. .The grundnorm is the result of Socioeconomic, cultural, political and other conditions prevailing in the society.
The legal order as per Kelson is receiving unity from all manifold norm which make up the legal system and coming back to finally the grundnorm. Kelson characterized the technique of social organization as law. The society and its element isn’t an end but a means to provide the apparatus of law. Though the law is barred from any social or ethical element but they are Catalyst for laws. The Law isn’t sacred but a compromise from the battling socio-economic and cultural segments.
As a matter of fact, it loses it’s colour and validity as a new government or social change occur. The courts though face the problem to apply the grundnorm while deciding legal dispute when one grundnorm is overthrown and other one is in process of formulation. At last, it is concluded as the determination o validity of grundnorm is out of the purview of jurisprudence as it is highly dependent on exigencies, situation and general acceptance of people and politicians.
Salient Features
The following are some of the pre- requisites for application of the theory-
- The reduction of confusion and chaos is the basic aim of the theory. Such Confusion and chaos are usually result of Natural Law theory and it’s philosophers
- The normative nature of theory is disregarded and being from the Analytical School, its emphasis on what the actual law is. The emphasis is placed on what law is not on what law ought to be.
- Law is normative science and not a natural science so norms do constitute a large part of the study of Jurisprudence.
- The theory appreciate the existence of norm but not much concentration is put on their effectiveness and their workability
- The theory is based on the law in operation. It is based on a formal and particular system of positive law.
Implication of Theory
- The theory has a huge spectrum which leads to the covering of various concepts including state, sovereignty, public law, private law, legal personality, rights, duties, etc
- There is no distinction between law and state
- There is no difference between public and private law
- There is no difference between a natural and juristic person
- He considered all personalities artificial who derive their existence from grundnorm
- He completely ignored the concept of individual rights
- For him, the public duties are the essence of the law
- He considered rights are the duties of the person. A person may be punished for not fulfilling duties but no enforcement can be done for non-performance of rights [6]
Criticism
There is no doubt that the normative nature of law and the theory which makes law a norm is one of the great contributions of Kelson in the field of Jurisprudence. He saved the law from being vanished in the study of other social sciences. The overpowering elements of justice and totalism did take away the basic characteristics of legal pedagogy. The theory was pure as legally theory and away from being contaminated by the influence of other societal elements.
Having said that the theory did suffer from various defects :
- The exclusion of all social facts and felt needs made it difficult for readers to find the social foundation for his theories. There were multiple references made to social, economic and cultural factors to validate laws but they were baseless as to the strict exclusion of them for studying law
- The idea that norms other than grundnorm have no logical basis is faulty. the failure to understand that no norms are based on logic when the grundnorm itself is based on the logical and social element. The grundnorm is a sum total of compromise between various social, economic, cultural, political and other factors
- The theory is based on hypothetical consideration without practicability. The complete divest law is a myth as laws aren’t untouched by political influences, social needs.
- The non-consideration of justice and morality while studying law makes the study incomplete as these two are the soul of any law or legal system
- The theory fails to define the cases where ideological conflict arise. The rejection of the element of justice makes it hollow. Though courts may be blind for emotions but it cant negate the concept of justice and social factors existing.
- The legal dynamics set forth in the theory are incomplete as the purpose and object of laws have been ignored completely. In other words, no validity of laws can be determined without social consideration as mere legal consideration and purposes are empty
- The theory lacks in methodological considerations. It didn’t keep a check on the authorities enforcing the law. The use of force and fear cant validate the law.
- The statement grundnorm remain effective till legal order existing point out the defect of judicial review of the law. The cases when Judiciary may not agree with the legality of the usurper who assumes power by force[7]
Conclusion
The contribution of Kelson is considered as the reviver for Jurisprudence as science under Analytical School. The Jurist from Natural Law School and Sociological School emphasized on the study of law in light of other Social Science which led to a dilution of study of law. The comprehensive study of these social sciences, made jurisprudence lose its essence. Kelsons through his theory re-instil the What It Is law in place of What Ought To Be.
The concept of Grundnorm is the starting point of defining a central law which keeps in check all other laws of the nation. The ideals of law above everyone even political bodies and making law free from political ideology was the main idea. Additionally, keeping law free from morality indeed made it a science PURE and a separate body to study.
It was the contribution of Kelson that we do study law as a separate discipline and not a part of some other social science
References:
[1] “Kelsens’ Pure Theory of Law-”https://www.legalbites.in/kelsens-pure-theory-of-law-hla-harts-theory/ Retrieved 22 October 2020
[2] “Hans Kelsen Normative Theory Grundnorm (Jurisprudence Notes)”http://notesforfree.com/2017/12/16/hans-kelsen-normative-theory-grundnorm-jurisprudence-notes/ Retrieved 22 October 2020
[3] State v Dosso 1958 SC Pak 533
[4] Jilani v Government of Punjab 1972 SC Pak 139
[5] “Analytical School of Jurisprudence” https://www.legalbites.in/analytical-school-jurisprudence/ Retrieved 22 October 2020
[6] W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & A
[7] V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company.
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