Kelson’s Pure theory of Law

By Anish Sinha 16 Minutes Read

Introduction

The Pure Theory of Law is a comprehensive framework within legal positivism that aims to understand law as it exists, rather than as it should be, through structural analysis. It provides fundamental legal concepts such as ‘legal system,’ ‘norm,’ ‘right,’ ‘duty,’ ‘sanction,’ and ‘imputation’ to facilitate a scientific understanding and description of law. This theory lays the groundwork for other legal disciplines like contract law, constitutional law, legal history, and comparative law.

The concept of the Pure Theory of Law was introduced by the renowned Austrian jurist and philosopher Hans Kelsen (1881–1973). Beginning his career as a legal theorist in the early 20th century, Kelsen criticized the prevailing legal philosophies of his time for being tainted with political ideology, moralizing, or attempts to reduce law to natural or social sciences. He argued that these reductionist approaches were fundamentally flawed and proposed a ‘pure’ theory of law, free from such influences. Kelsen’s jurisprudence is characterized as ‘pure’ because it focuses solely on the law, adhering to this purity as its basic methodological principle.

According to Professor Dias, Hans Kelsen’s pure theory of law represents advancements in two directions: it is the most refined development of analytical positivism and a reaction against the diverse approaches prevalent at the start of the 20th century. Kelsen did not revert to ideology; rather, he aimed to eliminate all forms of ideology and present an abstract, logically rigorous picture of law. Kelsen’s analysis of the formal structure of law as a hierarchical system of norms, and his emphasis on the dynamic character of this process, are certainly illuminating and avoid some, at any rate, of the perplexities of the Austinian system.[1] Still, this theory of Kelsen is criticized on many grounds. Kelsen was criticized by many Jurists like Julius Stone, Freeman etc., but still the Pure theory of Law holds stand in the modern world democracies governed by their respective constitutions.

Origin and development

The Pure Theory of Law, formulated by Hans Kelsen, emerged in the early 20th century as a response to the limitations Kelsen perceived in traditional legal philosophies. Kelsen, an Austrian jurist and legal philosopher, sought to establish a theory of law that was free from political ideology, moralizing influences, and the reduction of law to natural or social sciences.

As the natural law theory lost credibility due to its unverifiable claims of universal reason by the end of the 18th century, in accordance to which legal positivism emerged as a reaction. This theory posits that true knowledge of law can only be achieved by observing law as it is, not as it ought to be. For a significant period, John Austin’s Imperative Theory of Law, which emphasized the command of the sovereign backed by force, dominated. However, by the mid-20th century, this principle, which elevated coercive force, began to wane. Dynamic theories that highlighted the systematic quality and normative nature of law, such as the Pure Theory of Norms, started to erode these earlier notions.

Nineteenth-century German legal thought had established a “general” theory of law, distinct from the “philosophy of law or moral considerations of law.” Hans Kelsen saw himself as continuing this project but sought to eliminate the errors that persisted in the discipline. He thus advocated for a purified theory of law, known as the “Pure Theory of Law.”

Kelsen’s career as a legal theorist began in the early 20th century. He criticized the traditional legal philosophies of his time for being contaminated with political ideology and moralizing or for attempting to reduce law to natural or social sciences, both of which he found seriously flawed.

Kelsen proposed the analysis of a legal system purely as a structure of norms, or “ought”-propositions. This approach is valid and insightful within its own terms, irrespective of the moral quality of those norms and independent of extraneous ethical, social, economic, or political values. Kelsen’s framework had the effect of erasing the distinction between public and private law and between law and the state. Each norm within the legal system, collectively constituting what we understand as the state, is simply an “ought”-proposition. When reduced to this minimal quality, all legal norms share the same character, whether they belong to public or private law.

Analysis of pure theory of law

A theory of law must be distinguished from law itself, as there is no inherent logic in natural phenomena. A theory of nature, which aims to encompass all such phenomena, must be logically self-consistent. Law, composed of heterogeneous rules, requires any theory of law to organize it into a clear, single, ordered pattern. Kelsen achieved this through his hierarchy of norms, known as “Stufenbau,” and his distinction between “is” (sein) and “ought” (sollen).

A theory of law should be “pure” or independent of the influences of extra-legal values of any kind. Kelsen believed and propagated a theory that, in its purity, was divorced from all extra-legal elements such as sociology, philosophy, ideology, psychology, politics, ethics, etc.; which he believed should be left to specialists in those fields. By doing so, he intended to leave the field open for psychologists, sociologists, psychiatrists, and other non-law experts to conduct more illuminating inquiries into these non-law elements. Others who reacted against the doctrines of natural law sought an empirical filter through which they could shift law, believing that law was similar to the natural sciences. Kelsen quickly discerned that law belonged not to the natural sciences but to the human sciences. He focused on the form rather than the content of the law.

Kelsen’s goal was a pure science of law, not a theory of pure law. He did not envision a “pure norm.” Kelsen was not disinterested in justice, sociology, or psychology. The Pure Theory of Law provides the basic forms under which meanings can be scientifically known as legal norms, norms that will have content, although the particular content is empirically contingent and can be morally evaluated once determined. Thus, “far from being an attempt to exclude consideration of experience, content, and justice, the pure theory is intended to make attention to them more rigorously possible.” Therefore, the theory’s object of cognition, the norm is seen without reference to its content or to such questions as why it is (or is not) obeyed. Kelsen intended to clarify the field for those primarily interested in these questions. That the study of law has been “adulterated” by other disciplines is, according to Kelsen, perfectly understandable, as these disciplines deal with subjects closely connected with law. But the Pure Theory of Law, Kelsen insists, “undertakes to delimit the cognition of law against these disciplines… because it wishes to avoid the uncritical mixture of methodologically different disciplines… which obscures the essence of the science of law.”

Why only pure theory of law?

Hans Kelsen aimed to purify the science of law from all evaluative criteria and ideological elements. For example, justice was viewed by Kelsen as an ideological concept. Justice, to him, was an “irrational ideal” representing the subjective preferences and value choices of an individual or group. “The usual assertion,” he wrote, “that there is indeed such a thing as justice, but that it cannot clearly be defined, is in itself a contradiction. However indispensable it may be for the volition and action of men; it is not subject to cognition. Regarded from the point of view of rational cognition, there are only interests, and hence conflicts of interests.” The theory of law, Kelsen maintained, cannot answer the question of what constitutes justice because this question cannot be answered scientifically. If justice is to have any scientifically meaningful denotation, it must be identified with legality. According to Kelsen, it is “just” for a general rule to be applied in all cases where, according to its content, this rule should be applied. “Justice means the maintenance of a positive order by conscientious application of it.”

Kelsen’s methodological objectives did not stop with eliminating political and ideological value judgments from the science of law. He aimed to keep legal theory free from all extraneous, non-legal factors. He noted, “Uncritically, the science of law has been mixed with elements of psychology, sociology, ethics, and political theory.” Kelsen sought to restore the purity of the law by isolating those components of a lawyer’s or judge’s work that could be identified as strictly “legal.”

Inference of the Pure Theory of Law

Hans Kelsen’s Pure Theory of Law draws several significant conclusions about the nature and structure of legal systems:

1. No Distinction Between Public and Private Law: Kelsen posits that there is no essential distinction between public and private law because all laws emanate from the same Grundnorm (basic norm). Both types of law are part of a single process of concretization.

2. Legal System as Ordering of Human Behavior: Kelsen views the legal system as an ordering of human behavior. The concept of duty is central to this ordering, as every norm contains an inherent “ought.” The notion of a right is secondary, arising only if the enforcement of a legal rule depends on the will of the person interested in the sanction.

3. Role of Individual Rights: Individual rights are not the foundation of contemporary criminal law, which is now primarily enforced by the state rather than injured individuals. Although rights are still fundamental in property law, Kelsen suggests that they could eventually be dispensed with.

4. Concept of Personality: In Kelsen’s theory, the concept of personality is a step in the process of concretization, representing a totality of rights and duties. He rejects the distinction between natural and juristic persons, viewing natural persons as biological entities outside the realm of legal theory. Both the state and law are systems of human behavior and orders of social compulsion, thus making them identical.

5. Unity of State and Law: Kelsen asserts that the state and law are identical, refuting the notion that law is merely the will of the state. The state, personified, is simply the personification of law. He criticizes the idea of legal dualism, equating it with theology, and emphasizes that the law is an order of human compulsion. The state is a legal construct, and legal personality is a technical device for unifying legal norms.

6. Hierarchical Character of Law: Understanding the hierarchical nature of law, Kelsen argues that the distinction between law-making (legislation) and law application (execution) is not absolute. Most legal acts are both legislative and judicial, executing a norm of a higher degree while establishing a norm of a lower degree. For example, the initial form of a constitution is both a high-degree legislative act and the execution of a basic norm.

When we have grasped, however, the unity of state and law, when we have seen that the law, the positive law (not justice), is precisely that compulsive order which is the State, we shall have acquired a realistic non-personificative, non-anthropomorphous[2] view, which will demonstrate clearly the impossibility of justifying the state by the law, just as it is impossible to justify the law by the law, unless that term be now used in its positive sense, now in the sense of right law, justice.”

“Law, says positivism, is nothing but an order of human compulsion. The State is neither more nor less than the law, an object of the normative, juristic knowledge in its ideal aspect, that is, as a system of ideas, the subject matter of social psychology or sociology in its material aspect, i.e., as a motivated or motivating physical act (force).”

Conclusion

Kelsen’s Pure Theory of Law redefines the understanding of law and state, emphasizing their unity and the normative nature of legal systems. By focusing on the form rather than the content of law, Kelsen’s theory provides a rigorous, scientific framework for analyzing legal systems, free from extraneous moral, social, and political influences. His approach underscores the importance of duty within legal norms and minimizes the role of individual rights, ultimately seeking to purify legal science from ideological and evaluative criteria.

[1] M. D. A. Freeman, LLOYD’S Introduction to Jurisprudence, Sweet 7 Maxwell, London, 7^th ed., 2001, p. 282.

[2] Describing human beings in non- human terms.

Anish Sinha