Pure theory of Law Notes

1.Introduction

This theory was expounded by Hans Kelson. He is an Austrain jurist. He also authored the constitution of Austria 1920. this theory was first published in his book “pure theory of law” 1934 and then reconstructed in 1960 in the second edition of his book.

2.Definition

According to Black’s law dictionary:

“The pure theory of law is the philosophy of Hens Kelsen that law is pure and self-supporting and independent from extra legal values”.

3.Why it is called pure theory of law

It is called pure theory of law by Hans Kelsen because it talk about the pure law and it exclude the other factor effecting the definition of law like morality, ethics, economics and politics. 

4.Main Exponent/Founder

Hans kelsen was the main exponent of pure theory of law.

5.Characteristic of pure theory of law

Law “As it is”

Kelsen emphasized that analysis must focus on law as it is actually laid down, and not as it ought to be.

No distinction between public and private law:- 

There is no distinction between public and private law. That is due to the fact that all law legal emanates from the same Grundnorm.

Theory of law should be Uniform

According to Kelsen, the theory of law should be applicable at all times and all places. Kelsen advocated general jurisprudence. He arrived at generalizations which hold good over a very wide area.

Law and Morality

Kelson’s strict separation of law and morality, is an integral part of his presentation of the Pure theory of law. The application of the law, in order to be protected from moral influence or political influences, needed to be safeguarded by its separation from the sphere of conventional moral influence or political influence.

Legal construction:-

Kelson says that a state is nothing but a legal construction , there is no demarcation between natural and juristic persons because all legal personalities deduced its validity from superior norm.

Distinction between substantive and procedural law 

For kelson distinction between substantive and procedural law is relative 

Distinction between question of law and fact:-

The distinction between question of law and fact become relative.

Grandnorm as a source of law;-

Kelson says that Grandnorm is the source of all law. Grandnorm is in the form of written constitution.

No difference between law and state:-

Kelson says that there is no difference between law and state because they get power from the same grandnorm.

Sovereign is not a separate body:-

Kelson says that power of sovereign lies in the people . so the sovereign is not separate and superior form the people of the country. 

Supremacy of international law:- 

Pure theory of law maintains the supremacy of the international law.

6.Elements of theory

Kelson gave his view under this theory about

(a)State

(b)Sovereignty

(c)Public and private law

(d)Public and private rights.

(e)International law private and juristic law.

7.Criticism

Grandnorm is the concept of constitution is also considered as a political document.

According to Kelson, law should be effective. Effectiveness indirectly related to ethics.

This theory has lacks practical significance

Kelson ignored Customs

Kelson ignored Natural law and Morality