Hans Kelson (1881-1973)

1. His Life and Work:-

Hans Kelson was born in Austria in 1881 and was a professor of law at
the Vienna University. He was also the Judge of Supreme Constitutional Court
of Austria for ten years during 1920-1930. He wrote the book ‘the Pure Theory
of Law’ which was published in two editions, one in Europe in 1934 and a
second expanded edition after he had joined the faculty at the University of
California in 1960. He gave the ‘pure theory of law’ which is also known as
‘Vienna School’ of legal thought.

2. Pure theory of Law:-

Keelson didn’t favour widening the scope of jurisprudence by co-

relating it with all social sciences and thus insisted on separation of law from
politics, sociology, history and all other extra legal disciplines. Keelson divested
moral, ideal or ethical elements from the law and wished to create a pure
science of law devoid of all moral and sociological considerations.

In the third paragraph of the opening chapter of his book, Kelson himself gives
the reason for calling his theory as ‘pure’. He writes:-

“the pure theory of law is a theory of positive law. It is a theory of positive law
in general, not of a specific legal order. It is general theory of law, not an
interpretation of specific national or international legal norms; but it offers a
theory of interpretation. As a theory, its exclusive purpose is to know and to
describe its object. The theory attempts to answer the question what and how
the law is, not how it ought to be. It is a science of law, not legal politics. It is
called a pure theory of law, because it only describes the law and attempts to
eliminate from the object of this description everything that is not strictly law;
its aim is to free the science of law from alien elements. This is the
methodological basis of the theory”.
In other words, by pure theory of law Kelson meant that theory of law must be
free from all other disciplines such as politics, sociology, ethics, history,
morality etc. According to him, these disciplines are outside or external to the
field of law.

2.1. The purpose of pure theory:-

The purpose of pure theory, according to Kelson, “is to know and to

describe its object”, that is, to know and to describe law.

3. Definition of Law:-

Kelson defined law in following two headings:

(1) Law: An order of Human Behaviour

“When we compare the objects that have been designated by
the word ‘law’ by different peoples at different times, we see that all
these objects turn out to be ‘orders of human behaviour’.

(2) Law: A Coercive Order

“A second characteristic is that they are coercive orders. This
means that they react against certain events, regarded as undesirable
because detrimental to society; specially against human behaviour of this
kind, with a coercive act; that is to say, by inflicting on the responsible
individual an evil- such as deprivation of life, health, liberty or economic
values – which if necessary, is imposed upon the affected individual even
against his will by the employment of physical force.”

In simple words, we can say that ‘law’ according to Kelson is-

“Orders of human behaviour that react against certain events, regarded

as detrimental against such orders of human behaviour, with a coercive
act.”
4. Law is a Normative Science:-
According to Kelson, law is a normative science which is
different from natural sciences which are based on cause and effect such
as law of gravitation.

4.1. Essential feature of Natural Science

The law of natural science are capable of being accurately
described, determined, and discovered in the form of ‘is’(Sein) which is
an essential characteristic of all natural sciences.

4.2. Essential feature of Law as a Science

But the science of law is knowledge of what law ought
to be (Sollen). It is the ought character which provides normative
character to law.

For example:
If ‘A’ commits a theft he ought to be punished. Law does not attempt
to describe what actually occurs (whether the thief is punished or not) but
only prescribes certain rules.

5. Sanction as an Element of Law:

Like Austin, Kelson also considers sanction as an
essential element of law but he prefers to call it ‘norm’. He says that ‘law
is a primary norm which stipulates sanction’. According to Kelson,
norm (sanction) is a rule forbidding or prescribing certain behaviour.

6. Distinction between moral norms and legal norms:-

Kelson distinguishes moral norm with legal norm.
For example, moral norm says that ‘one shall not steal’ but since it has no
punitive consequences, it lacks coercive force but if it is to be reduced in
form of a legal norm, it would say, “if a person steals, he ought to be
punished by the competent organ or State”. This ‘ought’ in the legal norm
refers to the sanction to be applied for violation of law.
7. Features of the Kelson’s theory:-

7.1. The ‘Grundnorm’ or the ‘Basic Norm’ (is the source of law):-
Kelson’s pure theory of law is based on pyramidical structure
of hierarchy of norms which derive their validity from the basic norm
which he termed as ‘Grundnorm’. Thus, the Grundnorm gives the validity
to other norms. But the Kelson has not answered the question as to
wherefrom the Grundnorm or basic norm derives its validity. He
considers it to be a meta-legal question in which jurists need not intrude.
According to Kelson, in every legal system there is always a Grundnorm.
However, in every legal system, it may be different. In one legal system,
it may be the Constitution while in the other it may be Parliament or the
King or Crown etc.
e.g. In Britain, the Grundnorm is Crown in parliament and in the USA, it
is the Constitution.

7.2. Pyramid or Hierarchy of Norms

Kelson considers legal science as a pyramid of norms with
Grundnorm or Basic norm at its top. The subordinate norms are
controlled by norms superior to them in hierarchical order. The
Grundnorm is independent of any other norm being at its apex. The
norms of which the legal system is composed can be traced back to a final
source. This final source is the basic norm or the Grundnorm which he
defined as ‘the final postulated ultimate rule according to which the
norms of legal order are established and annulled, receive or lose their
validity’.

7.3. Concretisation of Legal System:

The process of one norm deriving its power from the
norm immediately superior to it, until it reaches the Grundnorm has been
termed by Kelson as ‘concretisation of legal system’. Thus, the system of
norms proceeds from downwards to upwards and finally it closes at the
Grundnorm at the top. The Grundnorm is taken for granted as a norm and
it does not need to be validated by any other norm.
e.g. a statute or law is valid because it derives its validity from the
legislative body, the legislative body in its own turn derives its validity
 from a norm, i.e., the Constitution. As to the question from where the
Constitution derives its validity there is no answer and therefore it is the
Grundnorm, according to Kelson.

7.4. Validity and Effectiveness of Norms:-

The validity of a norm means that one ought to behave as
the norm stipulates, while effectiveness of a norm means that one in fact
does so behave. Thus, effectiveness is an “is fact”, the fact that the norm
is actually applied and obeyed.
A general legal norm is regarded as valid only if the human behaviour
that is regulated by it actually conforms with it, at least to some degree. A
norm that is not obeyed by anybody anywhere, in other words, a norm
that is not effective at least to some degree, is not regarded as a valid
legal norm. A minimum of effectiveness is a condition of validity.

7.5. No Difference Between Law and State:-

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

7.6. Sovereign is not a Separate Body:-

As Austin says that the sovereign is a political superior
person which keeps control over the politically inferior persons, but
Kelson says that the power of the sovereign lies in the people. So the
sovereign is not separate and superior from the people of the country.

7.7. No difference between Public and Private Law:-

The public law is related with the State and the
private law is related with the individuals. Kelson says that there is no
difference between public and private law.
7.8. Supremacy of International Law:-
The main purpose of Kelson was to decrease the
tension at world level because there was 1st world war which
destroyed millions of person and property. He also said that the
international law is in primitive stage or immature stage. It means it is
in developing stage. One day will come when international law will
get equal to that of municipal law. So this is also enforceable.

7.9. Law as Science:-

Kelson tried to present a theory that could be attempted to
convert law into a science, a theory that could be understood through
logic.

7.10. As a Positive Law:-

Kelson introduces his theory as being a theory of positive law. This
theory of positive law is then presented by Kelson as forming a hierarchy
of laws which start from a Basic norm i.e., “Grundnorm”, where all other
norms are related to each other by either being inferior norms.

7.11. Law “as it is”:-

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

7.12. Law contains Set of Rules:-

Kelson emphasized that law contains mass of rules and a
theory should organise them in an ordered pattern.

7.13. Law and Morality:-

Kelson separated law from morality. He said that law is to be
protected from moral influence or political influence.

7.14. Theory of law should be uniform:-

According to Kelson, theory of law should be applicable to all
times and all places.
 7.15. Law is ‘Ought’ Proposition:-
According to Kelson, laws are ‘ought’ propositions,
i.e., norms: ‘If X happens, then Y ought to happen’, or in other words,
‘if a person commits theft, he ought to be punished’. Law does not
attempt to describe what actually occurs (is) but only prescribes
certain rules.

8. Implications of Kelson’s pure theory of law:-

Kelson’s pure theory of law covers a wide
spectrum of legal concepts such as State, sovereignty, private and public
law, legal personality, rights and duties etc.
According to Kelson, law and state are not different but they are in fact
one and the same. Likewise, there is no difference between public and
private law. Kelson also denies any legal difference between natural and
juristic personality. For him, all legal personality is artificial and derives
its validity from ‘Grundnorm’. He does not believe in the existence of
individual rights and asserts that ‘legal duties’ are the essence of law.

9. Criticism of Kelson’s theory:-

Undoubtedly, the credit of evolving a normative theory of

law goes to Hens Kelson. However, Kelson’s pure theory of law suffers from
certain glaring defects. E.g.

(i) Grundnorm is a Vague Concept:-

The concept of Grundnorm is not clear. It can’t be
applied where there is no written constitution. According to Kelson,
the base of Grundnorm is the positive norms or the rules based only on
legal order. So according to him custom and religion are not norms.
But we can’t ignore the role of these norms in the development of law.
(ii) International Law is a Weak Law:-
Kelson advocated the supremacy of international law. But
even up to now we see that there is no force behind international law.

(iii) Criticism on point that there is no difference between State and

Law:-
This point is also criticised by various jurists. Law is
a separate from the State.

(iv) Difference between Public and Private law:-

Kelson says that there is no difference between public and
private law, which is also not right in modern times.

(v) Customs and Precedents ignored:-

He ignored the customs and precedents as a source of
law, while we see that both are equally important source of law.