Professional Documents
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Made By: Nidhi Navneet 3rd year (5th sem) ROLL No.570 B.A.LL.B. (Hons)
ACKNOWLEDGEMENT I am feeling highly elated to work on the case law Pure Theory of Law under the guidance of my faculty of Jurisprudence, Mr. Manoranjan Jha. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support.
RESEARCH METHODOLOGY
Research Methodology
The project is basically based on the doctrinal method of research as no field work is done on this topic.
Sources of Data
The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project1. Books 2. Websites
Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this research paper.
Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this topic, the researcher is providing the descriptions of the existing facts.
Research Methodology ........................................................................................................2 Introduction ..........................................................................................................................4 Historical Development of Pure Theory of Law .................................................................5 Biological Sketch of Hans Kelsen....................................................................................6 Pure theory of law ................................................................................................................6 Justification for name of theory as Pure Theory of Law: .................................................8 Norms and the Basic Norm ..............................................................................................8 Hierarchy of Norms and Law-Making Process ..............................................................10 Validity and Effectiveness of Norms .............................................................................11 Sanction ..........................................................................................................................12 Implications of Pure Theory of Law ..................................................................................13 The Pure Theory of Law and State ................................................................................15 The Rule of law: Revolutions and the Legality under the Pure theory ..........................16 Criticisms of Pure Theory of Law .....................................................................................17 Conclusion .........................................................................................................................19 References ..........................................................................................................................22
Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, p. xiii; Kelsen, Hans, On the Pure Theory of Law, Israel Law Review Vol. 1 1966, p. 5. 2 Kelsen, Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960], p. 112. 3 Kelsen, Hans, The Function of the Pure Theory of Law, Law: A Century of Progress 1835 to 1935. Vol. 2 1937, p. 231. 4 Ibid. 5 Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Fall 2010 Edition), Edward N. Zalta (ed.), Available at: <http://plato.stanford.edu/archives/fall2010/entries/lawphiltheory/>. 6 R. W. M. Dias, Jurisprudence, 1976, London.
M. D. A. Freeman, LLOYDS Introduction to Jurisprudence, Sweet 7 Maxwell, London, 7 th ed., 2001, p. 282. 8 C.B. Gray, The Philosophy of law: An Encyclopaedia,1st ed. (New York, 1999) at 478. 9 Ibid., at 478
J.M. Kelly, A Short History of Western Legal Theory, 7th ed. (Oxford, 2001) at 356.
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S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach (Allahabad : Central Law Agency,2004) at 24.
Cf. J. Harris, Law and Legal Science (1979), pp. 34-35. Per Stewart, op.cit., I. Stewart (1990) 17 J.L.S. at p. 128. 14 Ibid.
The Pure Theory of Law, p.1. Hans Kelsen, General Theory of Law and State, transl. A. Wedberg (Cambridge, Mass., 1949), p. 13. 17 Kelsen, The Pure Theory of Law and Analytical Jurisprudence, Harward Law Review, p. 44, at 48-49 (1941). 18 Ibid. 19 Kelsen, The Pure Theory of Law, transl. M. Knight (Berkeley, 1967), p. 1. 20 Edgar Bodenheimer, 21 H.Kelsen, Pure Theory of Law, 2nd ed. (Berkeley, 1967) at 1.
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Kelsen,Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960].p. 215-21. Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945, at p. 41. 24 Ibid. 25 What is Justice, p. 268.
Curzon, L.B, Jurisprudence, 2nd ed., 1995, London: Cavendish Publishing Ltd., at p. 57. Ibid.
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M. D. A. Freeman, Lloyds Introduction to Jurisprudence, 8th Edition, 2008, Sweet & Maxwell publication, at p. 310. 29 Supra note 22. 30 Supra note 23. 31 Supra note 22; supra note 23.
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Sanction
For Kelsen, every system of norms rests on some type of sanction, though this may be of an undifferentiated kind, such as disapproval by a group. The essence of law is an organisation of force, and law thus rests on a coercive order designed to bring about certain social conduct. Sanctions are the key characteristic of law not because of any supposed psychological effectiveness but because it stipulates that coercion ought to be applied by the officials where delicts are committed. The law attaches certain conditions to the use of force, and those who apply it act as organs of the community. Kelsen bases this view on the historical facts that there has never been a large community which was not based on a coercive order. Kelsen commits himself to the view that every norm to be legal must have a sanction, though this may be found, as for instance in constitutional law by taking it together with other norms with which it is interconnected.32 Kelsen treats any breach of a legal norm as a delict, whether this would normally be described in traditional terms as falling within the criminal or the civil law. For Kelsen, to be legally obligated to a certain behaviour means that the contrary behaviour is a delict and as such is the condition of sanction stipulated by a legal norm. Since Kelsen regards a sanction as a essential characteristic of law, no conduct can amount to delict unless a sanction is provided for it. This view has been criticised,33 with some warrant, on the ground that though the absence of a sanction may make law ineffective, this is not the same as its being invalid, nor does the absence of a sanction necessarily entail invalidity. Emphasis on sanctions also underplays the significance of duties. There are many examples of public authorities
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General theory of Law and State, pp.29, 143-144. By A. D. Woozley (1968) 77 Mind 461, 463-465 and Razz, The Concept of a legal system, pp. 78 et seq.
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Marx Weber, Politics as a Vocation, 1st ed. (Munich 1919) at 398 - said that self defence in criminal law is generally considered to be the main exception. Reason being one did not wish to break a criminal norm but was forced to by the acts of another. 36 J. Raz, The Purity of the Pure Theory, (1981) Philosophia at 496.
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37 38
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H. Kelsen, Professor Stone and the Pure theory of Law, (1964) Stanford Law Review at 1130.
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Mohammed Enesi Etudaiye, The Pure Theory of law and the fragile new Democracies of the Developing World, Commonwealth Law Bulletin Vol. 33, No. 2, 217242, June 2007, available online at: available online at <http://journals online.tandf.co.uk/http://dx.doi.org/10.1080/03050710701594597>.
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CONCLUSION
Hans Kelsens Pure Theory is more valid today than it has ever been. H. L. A. Hart described Kelsen as the most stimulating writer on analytical jurisprudence of our day. Kelsens theory represents a development in two directions. On the one hand, it
41 42
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44 45
R.W.M Dias, Jurisprudence,5th ed. (London, 1985) at 358. M.L.R. Stone, Mystique and Mystery in the Basic Norm, (1963) Modern Law Review at 37.
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S.L. Paulson, The Neo -Kantian Dimension of Kelsens Pure theory of Law, (1992) Oxford Journal of Legal Studies at 311. 47 Ibid. 48 Available at: <www.wto.org/english/news_e/sppl_e/sppl12_e.htm>
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REFERENCES
Edgar Bodenheimer, Jurisprudence The Philosophy and Method of the Law., 1962 Harvard University Press; London: Oxford University Press. V.D. Mahajan, Jurisprudence and Legal Theory, 5th Ed. 2012, Eastern Book Company. M. D. A. Freeman, LLOYDS introduction to Jurisprudence, 8th Edition, 2008, Sweet & Maxwell. Torben Spaak, Kelsen and Hart on the Normativity of Law, Stockholm Institute for Scandianvian Law 1957-2010, pg. 397 available at:
<http://www.academia.edu/Documents/in/Pure_Theory_of_Law>. S.K Jahangir Ali, An Analysis of The Kelsons Theory of Law, Available at: <http://www.academia.edu/2482894/An_Analysis_of_the_KelsonS_Theory_of_L aw>. Mridushi Swarup, Kelsens Theory of Grundnorm, Manupatra, available at: <http://www.manupatra.com/4>. Mohammed Enesi Etudaiye, The Pure Theory of law and the fragile new Democracies of the Developing World, Commonwealth Law Bulletin Vol. 33,
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Jilani v. Government of Punjab Pak LD [1972] SC 139. This had overturned the earlier decision in Statev. Dosso [958] 2 Pakistan SCR 180. 50 http://news.bbc.co.uk/2/hi/South-asia/71084543.stm.
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<http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3427&context=c alifornialawreview> Zoran Jeli An Observation On The Theory Of Law of Hans Kelsen, UDC 340.12 Facta Universitatis Series: Law and Politics Vol. 1, No 5, 2001, pp. 551 570 available at: <http://facta.junis.ni.ac.rs/lap/lap2001/lap2001-01.pdf>.
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