Grundnorm and Kelson: The Theory of Pure Law

Introduction

Hans Kelsen (1881-1973) is one of the famous jurists of the analytical school of jurisprudence. Like Austin, Kelsen has given no less contribution to jurisprudence. He has given clarity about what law is, which crystal clear our doubts regarding the concept ‘pure law’. Kelsen in some matters supported the thoughts of Austin whereas on the same hand he has rejected a few of his thoughts. He has given a remarkable contribution to the analytical school of jurisprudence with his famous work “Pure theory of Law”. Unlike other jurists he did not accept the definition of law as it is, he wanted to clear out the concept that from where did the law come from. In this matter, he has found out the answer for this in his theory. Though he was one of Austin’s followers he himself criticized a few thoughts of Austin.

One of his famous books is “The Pure Theory of Law”.

Kelsen has accepted the concept of law as normative in nature and not as natural science.

Definition of Jurisprudence

According to Kelsen[1], “Jurisprudence is the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm grundnorm”.

His definition executes the relationship between the ‘grundnorm’ and all other norms. For him norm is a ‘rule of conduct’ and grundnorm is the ‘superior norm’. According to him grundnorm delegates authority to inferior norms which derives their validity from the norms superior to themselves.

The validity of other inferior norms can be defined by testing against grundnorm.

Kelsen[2]

After a century separates the works of Hans Kelsenfrom that of Austin. His attempt to redefine the concept of law was almost similar to that of Austin. According to Paton[3] “if Austin was driven to make his jurisprudence rigid because of the confusion of the previous thinkers, Kelsen represents a reaction against the modern schools which have so far widened the boundaries of jurisprudence that they seem almost coterminous with those of sciences”.

Both Kelsen and Austin had the same objective that to clear the confusions regarding the field of law which gave rise to new thoughts on the concept of law. Though we find few differences between both the jurists, on the other hand, there are some similarities also.

Kelsen accepted Austin’s thoughts which are[4]

1. Kelsen in his pure theory of law wanted to clear the confusions of pure science of law divorced from all subjective speculations and ridding the law of all doubts and difficulties for making a pure science of law. In his theory of law, he has excluded the aspect of social sciences like social history, sociology, psychology, etc.
2. Kelsen likes Austin proposed theory of law uniform and universal character. By supporting Austin’s general jurisprudence said that the pure theory of law must be applicable all over the place at any time. Austin was found to be confined in his concept of general jurisprudence with common principles, notions, and distinctions which were found in the Roman and English system only. Whereas, on the other hand, since Kelsen had composed a pure theory of law which is universal law holding good everywhere has been found to be more profited by the experience of several other systems.
3. Austin’s sovereignty is analogous compared to Kelsen’s grundnorm when it comes to testing the validity of the law.
4. Kelsen is also a positivist like Austin. He is an empiricist for Austin’s law of command theory which depends on sovereignty so here Kelsen’s norm derives the validity with reference to grundnorm. Kelsen has also defined law as a command but according to his views it introduces a psychological aspect that is brought into his theory of law which must result to be ‘pure’. For him, the law is the rule of conduct or ‘norm’ or ‘command validity of which is depending upon the superior norm of grundnorm’. Hence, a ‘norm’ according to him is a rule of conduct which is like Austin’s command whose validity is tested upon reference of grundnorm of it.
5. Both the jurists have accepted the law as it is and not the concept of law ought to be. Therefore, both are positivists.
6. Austin and Kelsen do not concerned about justice or morality.
7. They both did not question the basis of sovereignty or grundnorm.
8. Both have concentrated on well structuring and organized theory of law.
9. Validity of law is tested upon by the sovereignty and grundnorm which is similar in the aspect of both the jurist’s views.

Kelsen has rejected a few of the thoughts of Austin which resulted in the rise of new thought on law – ‘Grundnorm’[5]

However, Kelsen is not wholly Austinian, because he differs in some aspects of his thoughts such as;

1. Kelsen accepted law is a command but not from the sovereign. He wanted to clear out this doubt so he proposed his pure theory of law where he said there is the supreme norm which is grundnorm.
2. He rejected Austin’s state and sovereignty concept where he found a logic hidden behind it so he says that there is no different sources, spheres, and objects whereas it cannot be separated as on one hand state law and international law on the other hand instead both must be derived from the same grundnorm for controlling the individuals in the state.
3. Austin’s concept of sanction in terms of punishment or fear of sovereignty is not accepted by Kelsen. According to him, the sanction is the element of the norm itself which is not to be separated from any law.

Kelsen – Normative jurisprudence

According to Kelsen ‘law is a body of norms’.

The term ‘norm’ here means a model or a pattern.

In his pure theory of law, he said that ‘law is the norm which stipulates sanction’.

Norm is a kind of directive by which a certain act is permitted, authorized, or commanded. The norm in simple words can be said as something ought to be or to happen from which human beings must behave in a specific way.

Pure Theory of Law – Grundnorm[6]

Hans Kelsen’s theory is an interesting revival of analytical jurisprudence. In his Greek works General Theory of Late and State, and Pure Theory of Law challenged the efforts of the new jurists in the modern era to broaden the scope of jurisprudence and include the system of social sciences also.

According to Kelsen ‘law must be a positive law’ – which is the body of norms that stipulates sanction.

So, here norms are a kind of directive model which controls the command. His theory of law is called ‘pure’ because he has disregarded the elements which affect the structure of the legal system adversely. Therefore, according to his law must be a positive law only.

In his pure theory of law, he asserts that science of law should avoid all the elements which are non-legal such as history, sociology, politics, ethics, psychology, economics, etc, these are impurities of law. This approach is known as Vienna School with Hans Kelsen its founder.

The objective of this school is to separate and exclude the social sciences and their influence from the law. Actually, Austin in his work in 1832 did the same he rescued jurisprudence from the diversions and confusions which were vague and uncertain natural law, moral law, etc. Kelsen has done the same by adding up a few more thoughts of him which exclude social sciences and their influence of them on the law. He proposed the pure theory of law which eliminates the alien elements which lead to improper structuring of the legal system.

Kelsen’s concept of Grundnorm[7]

According to him legal hierarchy of norms and jurisprudence is the knowledge of these norms which constitute the order of legality. Legal order here constitutes a hierarchy of norms, each of which is derived from the supreme norm. Legal norms are the hierarchy that flows both upwards to downward and vice versa which is justified according to the higher norms.

Norms are the basic or lower level of norms in the hierarchy whereas grundnorm will be the higher norm which forms the base to all other norms. The grundnorm is the supreme here, so it will be delegating the authority and commanding the inferior norms which in this way their validity will be derived by themselves through corresponding superior to that norms.

Grundnorm is the basic norm on which the legal order depends. According to Kelsen, grundnorm is a fiction of law, not a hypothesis. His main point of view of him was to explain and find out the relationship between the grundnorm and other norms.

Validity of norms can be justified based on the basic norm i.e grundnorm, the validity of the basic norm cannot be objectively tested. According to Kelsen, the validity must be pre-supposed or assumed precisely. No one is supposed to utter about grundnorm as it is itself good or bad. That is not concerned to anyone but concerned by political science, ethics, or religion. No other jurists also can ask about or adverse questions on grundnorm and its purity or impurity because it is the supreme norm and it is expected that inferior norms must follow the command of it. It is not possible to account for the validity of the grundnorm by pointing to another rule of law. By this, he has found an extra-legal phenomenon in nature.

Kelsen’s criticisms[8]

1. The concept of Grundnorm is vague and creates confusion. Grundnorm has no explanation about it what it is, which gives rise to a lot of doubts and questions in the minds of the jurists.
2. His theory of him did not give importance to his practicality of it. Since Kelsen’s theory was thoughtful in point of view it is very difficult to understand its importance while applying it in a real-world nature.
3. He directly ignored morality and natural law. Kelsen, unfortunately, created a mess by being a positivist and excluding the naturality of law. His pure theory of law must include the same.
4. As he says his theory is pure and excludes improper elements in it but the critiques say that it is not possible to maintain purity all the time and all the time though it is formed to be universal in nature.
5. The basic norm or grundnorm is very trouble some because it does not clearly states what sort of norm it is, where it is found or how does it form.
6. International law is ignored by Kelsen’s theory.  As he says that the law is the body of norms, where again norm is upheld by grundnorm, so the law of international is excluded when he propounded the pure theory of law.

Conclusion

Hans Kelsen has made remarkable contributions to the analytical school of jurisprudence. He has cleared about the laws from comparing with norms and grundnorm. The concept of grundnorm was firstly propounded by him only otherwise the theory of law would be ambiguous sometimes. Though there is a positive side to Kelsen there were also many criticisms on his thoughts on jurisprudence. Kelsen has broadened the scope of the law in the minds of jurists. The critiques to criticize him was an easy way but someone or jurists who want to propound their new thoughts on the law will be challenged by Kelsen’s theory. The very important aspect which is helpful for the upcoming jurists is the purity of law which excludes the illegal structuring of the legal order.

Kelsen’s theory can be the base to form new thoughts on the law.

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References:

[1] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 57 (4^th ed. 2002).

[2] Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, Vol. 55 Harv. L. Rev. 44, 44-49 (1941).

[3] Paton, “Jurisprudence”, p. 41, 10^th ed. 1946.

[4] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 57 (4^th ed. 2002).

[5] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 58 & 59 (4^th ed. 2002).

[6] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 59 (4^th ed. 2002).

[7] Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, Vol. 55 Harv. L. Rev. 44, 55 (1941).

[8] Prof. S. N. Dhyani, “Jurisprudence, Indian Legal Theory” 59 (4^th ed. 2002).