LLB JURISPRUDENCE- LEGAL POSITIVISM ( PART 2) - HANS KELSEN'S PURE THEORY OF LAW

Описание: This lecture introduces one of the most influential strands of twentieth-century legal positivism: Hans Kelsen’s Pure Theory of Law. Kelsen (1881–1973), Austrian-American jurist, constitutional drafter, and later a major contributor to the drafting of the United Nations Charter, sought to construct a “pure” science of law—a legal theory methodologically insulated from politics, morality, sociology, ideology, psychology, and ethics. For him, the task of jurisprudence is to explain what law is, not what it ought to be. The Pure Theory is therefore offered as a scientific, descriptive, and value-free account of the structure of positive law.

At the core of Kelsen’s project is the understanding of law as a normative system. Law consists of norms—abstract prescriptions that guide behaviour. Unlike moral or social norms, legal norms derive their authority not from ethical content but from their position within a hierarchical legal order. Kelsen argues that the validity of a legal norm depends solely on whether it was created in accordance with procedures prescribed by higher norms. Validity is thus a matter of formal authority, not moral merit. A statute is valid because Parliament was constitutionally authorised to enact it, not because its content aligns with justice or ethics.

This hierarchical structure forms what Kelsen calls the Stufenbau—a layered arrangement of norms. At the apex is the Grundnorm (Basic Norm), a presupposed foundational norm that provides the ultimate basis for legal validity. The Grundnorm is not enacted or written; it is a hypothetical assumption necessary to avoid an infinite regress in the search for legal authority. Beneath the Grundnorm are constitutional norms, followed by legislative norms (statutes), administrative norms (regulations), and judicial norms (court decisions). Each level draws validity from the level above, creating a unified, coherent legal order.

Kelsen recognises that legal norms are typically backed by coercive sanctions, but he insists that coercion does not define law. Coercion may accompany legal norms, but the essential feature of law is its normative structure and hierarchical derivation from a foundational presupposition. This sharply distinguishes legal science from moral or religious normative systems.

A key element of Kelsen’s positivism is his rejection of natural law theory. Natural law, he argues, collapses legal analysis into subjective moral evaluation and undermines legal certainty. For Kelsen, morality may influence the content of legislation, but it does not determine legal validity. An unjust law remains a law if it was created in accordance with the authorised norm-creating procedures. This separation of law and morality ensures analytical clarity and scientific neutrality, though critics argue it risks legitimising unjust regimes.

The Pure Theory has attracted several prominent critiques. Scholars argue that Kelsen’s approach is overly formalistic, excessively abstract, and detached from the social realities of law in action. The Grundnorm is criticised as vague or metaphysical, and the theory’s exclusion of morality is seen as impractical for systems committed to constitutionalism, rights, and substantive justice. Nevertheless, Kelsen’s model remains profoundly influential in constitutional law (especially doctrines of constitutional supremacy), legal theory, and international law, where the hierarchical ordering of treaties, customary norms, and jus cogens reflects Kelsenian concepts.

In modern legal systems, Kelsen’s theory helps explain why constitutions occupy supreme status, why legislative authority must be traced to constitutional foundations, and why judicial review operates as a normative check within the legal hierarchy. Even critics acknowledge that Kelsen’s insistence on methodological purity advanced legal theory by clarifying the difference between legal validity and moral desirability.

This lecture provides a clear, structured introduction to Kelsen’s ideas, including the concepts of norms, hierarchy, the Grundnorm, legal validity, coercion, the nature of positive law, and the major criticisms and contemporary applications of the Pure Theory. It is intended to support students, researchers, and practitioners in jurisprudence, constitutional law, and legal theory.