Kelson’s Pure Theory Law
Hans Kelson (1881-1973)-
Hans Kelson was Austrian Jurist. He was born at Prague in Austria in 1881 and was a professor of law at the Vienna University. She was also the judge of the supreme constitutional Court of Austria for 10 years during 1920 to 1930. thereafter he shifted to England he came to the United States and work as a professor of law in several American Universities and authored many books. He released the "Theory of law entitled "The General Theory of Law and State 1945. it drew the attention of the modern jurisprudents and came to be known as Kelson's Pure Theory of Law.
Kelson’s Pure theory of Law
According to Kelson a theory of law should be uniform. It should be applicable to all times and in all places. according to him, Law must be free from ethics, politics, history, sociology etc in other words, it must be pure.
Pure theory is closed to some other theories -
Kelson and Austin both are positivists. Hans Kelson's Pure theory of law is a part of analytical positivism. Kelson explains his theory by the method of analogy. It deals with the existing fact for example what law is and not as it ought to be.
The theory of law must be distinguished from this law itself -
Law itself consists of a mass of heterogeneous of rules and the function of the theory of law is to relate them in a logical pattern and to recognize them in single ordinarily unit
Theory of law should be uniform -
According to Kelsen, a theory of law should be uniform. for example - it should be applicable at all times and in all places
Law is Normative Science -
According to Kelson law is a normative science and it is not a natural science based on cause and effect like law of gravitation.
Theory of Law must be pure -
According to Kelson's pure theory of law, it must be free from Ethics, Morality, Politics Sociology, History etc it must be pure.
According to Kelsen law is a normative science -
Jurisprudence is the knowledge of norms. Law is a normative science. A norm of law is simply a preposition in hypothetical from. A norm of law has a distinct feature. They are different from Science norm.
Hierarchy of normative relations -
For Kelsen law is the knowledge of hierarchy of normative relations. He does not want to include in his theory what ought to be but for him, law is a theory of analysis an analysis that is free from all ethical and political judgment of value
Salient features of Kelson's pure theory of law / Essential of Kelson's Pure Theory of Law
(1) Reduce chaos and multiplicity to unity- The aim of the Pure theory of law is to reduce chaos and multiplicity to Unity
(2) Legal theory as a science of what law is, not what ought to be - Pure theory of law deals with the knowledge of what law is, and it is not concerned about what law ought to be.
(3) Law as normative science - Theory considered as a normative science and not a natural science.
(4) Effectiveness of not out of scope - Legal theory as a theory of norms is not concerned with the effectiveness of legal norms
(5) It is formal theory confined to a particular system of positive law as actually in operation.
(6) The relation of legal theory to a particular system of positive law is that of possible to actual law
Implications of the Pure Theory
Law and state are not two different things-
No difference between Municipal and international law
No Difference between legal person and natural person
Supremacy of International law
Merits of the Pure Theory of Law
(1) Kelson recognized International Law as a law
(2) Pure theory of law is best for peaceful change
(3) It makes the most refined development of analytical positivism
(4) Kelson's concept of legal system is clear original and striking
(5) Kelson has explained that no law can prevail country to grundnorm or constitution
(6) Kelson's Pure Theory of Law is considered to be the most outstanding theory of law
Criticism of Kelsons Pure theory law
Grundnorms vague And confusing-
Purity of nerve cannot be maintained
Natural law is ignored
Supremacy of international law
No practical significance