Kelsens Pure Theory of Law is an important theory of Law related to Jurisprudence Henry Kelsen (1881 - 1973) was a Professor of Law at the University of Vienna. He propounded the Theory of Law in his essay The Pure Theory of Law and contributed it to the Law Quarterly Review in 1934. This theory is an improvement of Austins Positivism Theory This theory was further elaborated in 1945 in his General Theory of Law and State. Contents [hide] 1 Postulates of Kelsen 1.1 Law is a norm of action 1.2 State is a synonym for the legal order which is nothing but a pyramid of norms 1.3 Purity of Kelsen Theory 2 Improvements upon Austins Positivism Theory 3 Criticism 4 Related Topics Postulates (শর্ত) of Kelsen:- Law is a norm of action In natural sciences, laws are statements of the sequence of cause and effect. If A is, B is. There can be no infraction of such a law, for a single infraction invalidates the law. Jurisprudence according to Kelsen is a normative science. If A is, then B ought to B. Eg: If a person commits a murder, he ought to be hanged. The law is valid irrespective of consequences. State is a synonym for the legal order which is nothing but a pyramid of norms The basic problem in Kelsons Pure Theory of Law is the derivation of norms. The question of the criterion of the testing of lawness of these norms exists. Kelsen answers this by his hypothesis of grundnorm or fundamental norm or basic norm or the base. The Grundnorm is a norm which is not capable of deducation from any principles of the science of law. Hence, the grundnorm is the fundamental norm and all other norms are derived from grundnorms in a hierarchical structure. Purity of Kelsen Theory Kelsens Pure Theory of Law attempts to be a consistent theory of law applicable to any legal system. He calls it pure because it is universalist and not confined to any particular legal system. Improvements upon Austins Positivism Theory Austin also proposed the Austinian Theory of Law which is also called Imperative or Purely Imperative Theory of Law No dualism between State and Law Austin: Law is subordinate to the sovereign. Law is the personification of the State. Since Law emanates from the sovereign, it cannot control the sovereign. Kelsen: State is synonym for the legal order. So there is no distinction between State and Law. Austin: State controls Law Kelsen: Law regulates its own creation. Law need not be imperative Austin: Law is the command of the Sovereign Kelsen: Law is not the command of the Sovereign but a hypothetical judgement No dichtomy between Private Law and Public Law International Law may be law strictu sensu Customary Law is law strictu sensu Criticism Lauterpachts criticism - Primacy of international law over state law is a back door entry permitted by Kelsens theory to natural law. Allens criticism - Sources of law like custom, statute and precedent are co-ordinate and do not admit of arrangement in a hierarchical pattern adopted by Kelsen. Friedmanns criticism - Pure science of law by Kelsen is inadequate from point of view of legal theory. The sphere of law is now intersecting spheres traditionally allotted to other social sciences like Economics, Psychology and Sociology.
Posted on: Fri, 12 Sep 2014 16:16:02 +0000
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