As Indian Constitution is supreme law of the land same as that jurisprudence is the mother of all laws which tells that the law has evolved. One of the theories of jurisprudence is ‘Pure Theory of Law’ which was propounded by Hans Kelsen who was Austrian jurist and a philosopher. According to his theory he considered that pure theory of Law is theory of positive law and the legal sources or system determines the validity of law. It is a general theory of law and a science of law not of legal politics.
He distinguished between ‘law as it is’ and ‘law ought to be’ which was similar to the distinction made by Austin, Holmes and American realists. According to Kelsen law is not a fact but it is a norm. A norm is a rule whose meaning is that something ought to be or to be done, even if actually it is not, or is not done. Norm is something which consists of command, authorization or power of issuing a command.
Austrian Jurist and philosopher Hans Kelsen (1881-1973) propounded the Pure Theory of Law. As the name of the theory suggests, it is the theory of law. Although the theory of law refers to the jurisprudence, which is derived from two words ‘juris’ and ‘prudentia’ where juris means law and prudentia means knowledge or theory. Subsequently jurisprudence is the theory or knowledge of law. Kelsen believed that the legal system should be self supporting and not depending on extralegal values and should be pure. The pure theory of law maintains the validity of laws or legal norms as the legal system is interconnected system of norms handed down by the state. According to the theory, law is merely a definite type of norm. As Kelson says that, “The Pure Theory aims simply to raise to the level of consciousness what all jurists are doing (for the most part unwittingly) when, in conceptualizing their object of enquiry, they … understand the positive law as a valid system, that is, as a norm, and not merely as factual contingencies of motivation”
Kelson’s theory suggests that there is no need of explanation of natural law when it includes elements of politics, sociology or other elements. He believed that to understand the pure or natural law any possibility of morality or sociology or any other element should be excluded. So that’s why the theory is ‘pure’ and called Pure Theory of Law.
Theory of Positive Law
In general law, the Pure Theory of Law is the Theory of Positive Law but not of a definite legal order. The theory is consistent version of legal positivism school of jurisprudence, as it indicates law as positive or pure law because it doesn’t recognize any normative social order. Law is a definite type of norm. It is a theory of legal positivism, that is, a theory of man-made rather than transcendental law. To be called as positive law, it must fulfill two conditions, first one is that it should be stated, established or created by the human being and should not be supposed to be established by god or divine. Second condition is that the legal norm is obeyed or applied by public at large; it should be effective to a great extent. Here the word ‘obey’ refers to a law followed by the people and the word ‘applied’ refers to when the law is not yet effective but it becomes effective by applying the legal norm. That the pure theory of law at first place the word ‘pure’ that it avoids the erroneous identification of the validity of the law with its effectiveness. By this the theory separates jurisprudence from all types of sciences whether it is social science or natural science. In this way, it can be said that the pure theory of law is theory of positive law.
A norm is a description of law or a statement that recognizes a standard which includes imperative construction which signifies that a particular thing is ought to be done, for example the one who commits murder ought to be punished. The specific meaning of norm is something ought to be done or ought to be applied. As norms have their own validity and ‘is’ statement has true false nature, so therefore to say a norm ought to be applied or obeyed is valid. The logical doctrine of two basic opposing element of ‘is’ and ‘ought’ refers to the impossibility of inferring from the statement that something ought to be or to be done, the statement that something is or is done, and vice versa. Pure Theory calls the basic norm: “A norm the validity of which cannot be derived from a superior norm we call a ‘basic’ norm”. There are three functions of the norm:
- Prescription or command
The term ‘ought’ indicates normative function when the above mentioned functions are performed by the rule. According to pure theory of law, law is a norm or set of norms, the meaning of norms is that something ought to be done that a person has to behave in a certain way. Law is a coercive order it tries to consider human behavior by rules attaching to the contrary behavior coercive acts as sanction. As sanctions are result of wrong or acts done or committed by the human being towards other being and that human behavior is condition of the sanction. As a condition of a sanction the behavior is “illegal”, or to use a more adequate term, a delict. The individual whose behavior is the delict is guilty of misdeed. The individual, against whom the sanction is directed, is legally responsible for this behavior.
As Kelsen has always argued that a radical change is brought in the content of basic norm by a successful revolution. For example in a legal system a law or a norm enacted by the king is binding, at some point the situation will come wherein a revolution will take place against it and a republican government is successfully installed. On this point Kelsen observed that, “one presupposes a new basic norm, no longer the basic norm delegating authority to the revolutionary government”. Here a suspicion is raised that Kelsen himself has infringed categorical injunction between ‘ought’ and ‘is’. As Kelsen was aware of this problem so he suggested solution by introducing international law as source of validity for changes in legal system’s basic norm. He mentioned that the sovereignty of a state is determined by the successful control over a specified territory. But it was not clear that whether Kelsen really adhered to it. This is how Kelsen has deliberately avoided the explanation and left many questions unanswered. However he may be right about law but was also quite wrong about nature of moral imperatives.
Pure Theory of Law and Indian Constitution
According to Kelsen, in “..every country there is a hierarchy of legal norms, headed by what he calls as the `Grundnorm’..”, here grundnorms is referred to the basic norm. When there is a conflict relating to the legal norm between the higher layer and lower layer of the hierarchy, then the former will prevail over the later. As the jurisprudence is mother of all laws, similarly constitution is the supreme law of the land which will always prevail over any other law, in India the hierarchy of legal norms is as follows:
(i) The Constitution of India, as it is the supreme law of the land;
(ii) Laws made by Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.;
(iv) Executive orders (not made under any legislation)
In Jurisprudence there are hardly some of the theories which create confusion in the minds of the scholars, one of them is the theory given by Hans Kelsen’s ‘Pure theory of law’. According to various scholars Kelsen’s theory on legal normativity has never been clear. Kelsen observed that various legal positivist recognize the normative orders such as moral orders etiquette as law but to him it was not law, for him the law is norms which are part of legal order unless they have been incorporated into law by reference. He believed that the law is a coercive order, as it encourages or brings out the behavior of human by attaching rules to the contrary behavior coercive acts as sanction.
Frequently Asked Questions
- What is pure theory of law?
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