IV

Semester
Jamia Millia
Islamia [JURISPRUDENCE]
KELSEN’S THEORY OF LAW
Iram Peerzada
 Acknowledgement

Before I start off on this endeavor that has been given to me as the

Islamic law project in the fourth semester of this joyful ride that I have

undertaken under the flagship of The Faculty of Law, Jamia Millia

Islamia, I would like to thank everybody who has been instrumental in

my successful completion of my projects.

First, I would like to acknowledge the immense contribution that my

professor of jurisprudence, Dr. Eqbal Hussain, has had on this project. By

creating the basic framework of the subject in my mind through his

excellent lectures he also contributed in the creation of the basic

framework and limitations of my topic in my mind.

Next, it would be my duty to thank the excellent library staff in the

Faculty of Law, Jamia Millia Islamia for their never ending readiness to

help anyone in finding exact readings for any such subject that he/she is

researching.

Lastly, I would like to thank my classmates who never backed off when I

needed them to clarify any concept that I couldn’t catch during the

process of the class.

 
AN ANALYSIS OF THE KELSEN’S THEORY OF LAW

INTRODUCTORY REMARKS

It is said that Kelsen’s contribution in the development of Analytical

Positivism is a big zero as he repeats the things of ‘Sovereignty’ of John
Austin and the ‘Rule of Recognization’ of Prof. Hart with the changing
phraseology of Grund Norm of his own.

In the backdrop of above observation the researcher would like to

highlight the contribution of Kelsen’s Pure theory of law in the
development of Analytical Positivism and its core reality.

Before entering into Kelsen thesis on ‘Pure Law Theory’, the researcher
would like to put the differentiation between the natural law school and
analytical positivism school.

The natural law school deals with the concept of law of nature. It is about
the God made law. It also says about the value, ethics, morality and
supernatural aspect. It also deals with the idea of reason. Basically natural
law school indicates the “ought” proposition.

But the ‘analytical positivism school’ does not concentrate about the
“ought” proposition, value judgement and theological affairs. The
analytical positivism school takes the “is” proposition and tries to
establish the scientific temper in a logical manner. According to Austin,
‘Law is command of Sovereign backed by sanction’. It is authority
supportive that sovereignty must be obeyed and must not be challenged.

Kelsen, an analytical jurist, in his ‘Pure Theory of Law says,’ Law is the
norm which stipulates sanction. Kelsen’s ‘Pure Theory’ is about the
‘hierarchy of norms. He also says about the normative behaviour which
takes validity from the ‘Ground norm’. In his ‘Pure Theory of Law’ says
Kelsen, that law should be kept pure from extra legal affairs.

But Prof. H.L.A. Hart propounded that law is Union of ‘Primary and
Secondary Rules’. He also said about the minimum content of morality
within the framework of Analytical School. Here Kelsen established the
normative character of law. On the other hand Hart gave emphasis on
rule. It is core reality that Austin, Kelsen and Hart established the
coercive character of law in different ways.

The objective and scope of the topic is very wide. A set of behavioural
norm is in every society. The normative behaviour control and regulate
the human being. The pure theory is free from any extra-legal element
and the sanction is also under the scope of the norms.

The research work has been done with the help of doctrinal method which
carries the legal structure, case analysis and the legal framework.

BIOLOGICAL SKETCH

Hans Kelsen – The Austrian jurist was born at Prague in 1881 and was
Professor of Law at the Vienna University. He was the judge of the
Supreme Constitutional Court of Austria 1920-30. Subsequently, he came
to England and in 1940 he moved to United States and became Professor
of Law in several American Universities. Of late he was emeritus
Professor of Political Science of the University of California where he
expounded his Pure Theory of Law in the twentieth century which has
evoked world wide interest. Kelsen has been the author of several works
– of Austrian Constitution (1920), General Theory of Law and State
(1945), The Pure Theory Law (1934) revised (1960), Principle of
International Law (1952), What is Justice (1957), and many other works.
Kelsen has opposed with determination the tendency on the part of jurists
to broaden the scope of jurisprudence to embrace all social sciences and
has rigidly advocated the separation of law from metaphysics, politics
and sociology. He is disgusted at ‘politics in masqueradings as
jurisprudence’. Like John Austin in the nineteenth century Kelsen
challenges both the philosophical and natural law theories of law. He
owed his fame chiefly due to the Pure Theory of Law or the Doctrine of
Pure Law divested of all extra-legal and non-legal elements.1

1
. S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach (Allahabad :
Central Law Agency,2004) at 24.
CRITICAL ANALYSIS OF HIS “GROUND NORM AND
HIERARCHY OF NORMS” WITH REFERENCE TO HIS PURE
THEORY OF LAW AND IT’S CONTRIBUTION TO THE
ANALYTICAL POSITIVISM

Hans Kelsen, the jurist who belonged to the Vienna School, propounded
the Pure Theory. He claimed that his theory is applicable to all places and
all the times.2 If it is observed minutely really Kelsen theory must get the
universal acceptance.

A theory of law must be free from ethics, politics, sociology, history etc;
it must in other words be ‘Pure’ (rein).3 “Uncritically” he said, “the
science of law has been mixed with the elements of psychological,
sociology, ethics and political theory.” He sought to restore the purity of
the law by isolating those components of the work of a lawyer or judge
which may be identified as strictly “legal.”4

Kelsen actually wants to make the law pure and that is why he tried to
cleanse of all that is changeable and he is quite able to give this idea to
search the justice. Kelsen does not bother about the morality, political and
ideological value judgement.

According to Kelsen’s Pure theory of law, the objects of the science of

law are those norms “which have the character of legal norm, which
makes certain acts legal or illegal.” By the term norm, Kelsen means that
“something ought to be or ought to happen, especially that a human being
ought to behave in a certain way.” Finally laws being ‘ought’ proposition,
knowledge of law means a knowledge of ‘ought’ i.e. norms and a norm is
a proposition in hypothetical form: ‘if X happen, then Y ought to be
happen.’5

It is very much clear that Kelsen wants to say that law is depend on
condition and consequence in a process of normative way. According to
the above discussion it is found that the element of sanction lies on the
norms but not the psychological element. The legal norms are the valid
norm and it is quite pure from extra-legal elements.
2
. Rakesh Kumar, “Structural Analysis of the Indian Legal System Through the
Normative Theory.” (1999) Journal of the Indian Law Institute. Vol. 41: 3&4 at 501.
3
. RMW Dias, Jurisprudence (New Delhi: Aditya Book Private Limited, 1994) at 351.
4
. Edgar Bodenheimer, Jurisprudence (Delhi :Universal Law Publishing Co. Ltd, 2004)
at 101.
5
. Ibid.
(a) Hierarchy of normative relation

The science of law to Kelsen is the knowledge of hierarchy of normative

relation. He builds on Kant’s theory of knowledge and extends the
theoretical knowledge to law also.6For Kelsen the law consists of norms:
norms can not be derived from facts, but only from other norms. The
relationship between norm is one of “imputation” not causality.7

According to Kelsen, a dynamic system is one in which fresh norm are

constantly being created on the authority of original, or basic, norm, a
Ground norm; a static system is one which is at rest in that the basic norm
determines the content of those drives from it in additional to imparting
validity to them.8

The Ground norm is the presupposition and the other norms get validity
from the Ground norm. Every country has its own Ground norm from
which the other norm is being originated. The Ground norm is the basic
norm.

Kelsen recognized that the Ground norm need not be the same in every
legal order, but a Ground norm of some kind there will always be,
whether, eg a written constitution or the will of a dictator. The Ground
norm is not the constitution, it is simply the presupposition, demanded by
theory, that this constitution ought to be obeyed. Therefore, the Ground
norm is always adopted to the prevailing state of affair. The Ground norm
only imparts validity to the constitution and all other norm derived from
it.9

The fact that in great Britain the fountain of validity rests with statute,
precedent and immemorial customs does not contradict Kelsen’s thesis,
for what he contended was that a system cannot be found on conflicting
Ground norms. In Britain there is no conflict between the authority of the
crown of the Parliament, judicial precedent and customs, they takes
precedence in that order.10

6
. Dr. B.N. Mani Tripathi, Jurisprudence (Faridabad: Allahabad Law Agency,1999) at
59.
7
. M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (London: Sweet and
Maxwell Ltd,1994) at 272.
8
. RMW Dias, Jurisprudence ,Supra note. 3 at p. 359.
9
. Ibid.
10
. Ibid.
Kelsen distinguishes the legal norm and normal norm. Legal norm
derives it validity from the external sources and the particular “ought” of
the legal, as distinguish from the moral norm, is the sanction.11

Kelsen found the distinction between legal and other ‘oughts’ in that the
former backed by the force of the state, the preoccupation of law being
with the prospect of disobedience rather than obedience. Thus, it is
prescription of sanction that imparts significance to a norm, or putting it
in another way, ‘Law is the primary norm, which stipulates the sanction.12

Only in this way does ‘law arrive at its essential function. It is true that in
the statement,’ if a person does X, then Y ought to happen,’ there is
implicit the idea that a person ought not to do X if he wants to do avoid Y,
i.e. not doing X is the effective means of avoiding Y. Yet the law is only
invoked when X has been done. In this way a legal norm prescribes
conduct by attaching sanction to contrary behaviour.13

Kelsen although does not define law as a command. Kelsen is of the view
that it introduce a psychological element into the theory of law should be
‘Pure’. Yet law is a rule of conduct is like Austin’s command whose
validity is to be judge with reference to Ground norm. In this sense
Kelsen is a positivist or empiricist for as Austin law of command.14

Kelsen also asserts the identity of state and law. As a political

organization state is a legal order and every state is governed by law. The
expression “government of laws” is therefore pleonasm to Kelsen.15

Effectiveness and Validity

The discussion of effectiveness and validity will make the framework of

the thesis advanced by Kelsen complete. Kelsen’s effectiveness is
11
. W. Friedman, Legal Theory ( Delhi: Universal Law Publishing Co. Pvt. Ltd , 1967) at
276.
12
. RMW Dias,Supra note 3 at 366.
13
. Ibid.
14
. Prof. S.N. Dhayani, Jurisprudence and Indian Legal Theory (Allahabad: Central Law
Agency, 2002)at58
15
. RMW Dias,Supra note 3 at 103.
Austin’s habitual obedience and something more than norm application
by legal organs. Minimum of effectiveness is condition of validity for any
norm to exist. Effectiveness means a norm is applied by legal organ and
obeyed by subjects. Validity means in addition to application and
obedience, the norm ought to be obeyed and applied.16

A single norm and a legal order as a whole cannot be regarded as valid,

when they cease to be effective. Effectiveness is added to the fact of norm
creation. A legal order does not lose validity because a single norm losses
effectiveness. Accordingly a norm, which is never applied and obeyed,
losses its validity.17

The researcher would like to cite a case and wants to make differentiate
in accordance with the Kelsenian concept on the point desuetude.

In the case of R v/s Duncan,18 where a woman was punished by the Court
of Criminal Appeals under the Witchcraft Act, which were not applied
even once during the previous two centuries.

Here, the researcher thinks that the Kelsenite court must definitely
dismiss the case as because the law was not applied for a long time.

International law and Kelsen theory

Kelsen tried to establish the supremacy of international law. On no point

the weakness and limitations of his theory are more exposed than on this.
It made him to run a number of inconsistencies. Kelsen is out to say that
the International law should also be considered a “juridical order.” To
remove the difficulty which arises by the fact that international law does
not possess all characteristics of law, specially the ‘apparatus of
compulsion,’ he says that it is comparable to ‘primitive law.’19

As law in the beginning was in customary from without an adequate

sanction and assumed the present from after a course of evolution, so the
present international law is (like primitive law) in its early stage, and in
future it will have all the characteristics which the modern law has so far
as the ‘Ground norm’ of International law is concerned, Kelsen points out

16
. Rakesh Kumar, supra note 2 at 502, 503.
17
. Ibid.
18
. (1994) 2 AII E.R. 220.
19
. M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence ,supra note 7 at 62.
that it is in ‘Pacta Sunta Servanda’. He says that the sanctions of
International Law are war and reprisals.20

APPLICATION OF KELSEN THEORY IN THE INDIAN SCENARIO

The Indian people has their own philosophy. But if we look minutely, we
can found that the Kelsen theory is in the Indian society as for example
“Dharma.”21

‘Dharma’ consist of rule of daily routine. It gives a set of behavior to

control the human society. We can say that Dharma is the Grund norm
and other norm generates from the Dharma.

Application of Kelsen’s Pure Theory to the ancient Indian legal system

and to British Indian legal system gives an insights into the fundamental
difference between the two legal systems. The norm posited in the latter
case is that we ought to obey the viceroy or governor-general, who was
not responsive to Indian moral or cultural norm and ethos or to the public
opinion. The position of such a norm make the entire system Austinian
where under even the sovereign’s caprice can become the law.22

INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW

In the case of A.K. Gopalan v/s State of Madras,23 where it interpreted the
expression, “the procedure established by law” in Article 21of the
Constitution of India as any substantive or procedural provision of
enacted law. However, in Maneka Gandhi v/s Union of India,24 the
Supreme Court of India adopted an interpretation which brought Article
21 of the Constitution of India 25 into a concept of fairness, justness and
reasonableness which is not there in the word of that article. The meaning
of the definition of ‘fair, just and reasonable’ could vary from person to
person and is a reflection of ideology of an individual which
consideration if brought to bear upon the test of constitutional validity of

20
. Ibid.
21
21. Means Righteousness (Dharma) is that which sustains the people or that which is
adopted by meritorious souls.
22
. Rakesh Kumar,supra note 2 at 510.
23
. 1950 S.C.R. 525.
24
. 1978 A.I.R. 597.
25
24. Article 21.Protection of life and personal liberty.-No person shall be deprived of his
life or person liberty except according to procedure established by law
particular statute liable to be struck down if it is not in conformity with
the mental conception of an individual who is the judge.

While A.K. Gopalan’s case gave limitless power to the law maker,
Kesavanda Bharati’s case introduced the doctrine of basic structure
according to which the term “amendment” in Article 368 of the Indian
Constitution means addition or change within the contour of the preamble
or the constitution but not replacement of the constitution or its basic
foundation and structure.

Kelsen’s Pure Theory provides the principle of judgement in

Kesavananda Bharati, the Grund Norm cannot be replaced except by
revolutionary methods. Basic structure is unamenable, limitless and
indivisible like Austin’s Sovereign. Kelsen’s Grund Norm is alterable by
changing the presupposition.

CRITICAL EVALUATION OF THE OBSERVATION NOTED

ABOVE

The researcher thinks that Kelsen has contributed a lot to the Analytical
Positivism School. Kelsen has recognized the broad similarities between
his theory and the imperative theory, but has equally emphasized the
differences.

Austin, by relying on the idea of command as an expression of will,

ignores the normative character of legal rules. A legal norm may bear an
analogy to command but it does not rest on any active will (which is a
fact, or perhaps here, a fiction) but on a higher norm, and is itself merely
a proposition regarding human conduct in a particular form.26

Kelsen agrees with Austin that coercion is one essential feature of law but
he rejects Austin’s supposed reliance on motivation by fear. Even if
Austin is right as to this, which he probably is not, the question is a
sociological one. The science of law is solely concerned with coercive
measures, directed under definite conditions, as part of the legal norm.
Moreover, so far as legal science is concerned, the sanction is not the
actual punishment operation on the mind of the wrongdoer, but is simply
part of the rules forming the legal system. The application of the penalty
represents the final individualization of a set of legal norms.27

26
M.D.A. Freeman, supra note 7 at 280.
27
. Ibid, p. 281.
 Austin ignores (so Kelsen says) the dynamic process of law-
creating which occurs throughout the hierarchy of norms, and which
derives from the constitution, whether written or unwritten. At each level
of the hierarchy the content of norms may be developed on the basis of
higher norms, and this, says Kelsen, is a “thoroughly dynamic
principle.”28

Austin creates a dualism between the sovereign (or state) and the legal
order. But the state is merely the “personification” of the legal order, and
the sovereign merely that order’s highest organ. Sovereignty is intended
to imply that no higher order is assumed, such as an international order,
but within the system of norms there is nothing stipulating that the
sovereign must be free from legal limitation. Moreover, Austin makes the
cardinal error of basing the validity of his legal order (or sovereignty) on
a factual situation, viz., habitual obedience, and ignores the logical
objection to basing the validity of a norm on anything but another norm.29

Hart has been anti-Austinian who has rejected the Austinian model as it is
exclusively based on the triology of command, sanction and sovereign
which Austin described30 as ‘key to the science of jurisprudence’. Such
pattern, says Hart, is exclusively applicable to criminal pattern of law and
is inapplicable to modern legal systems. Hart’s analysis of legal system is
quite elaborate and sociological and not merely a kind of command or
orders of gunman or gangster. In place of Austin’s monolithic legal
structure Hart provides a dual system of law consisting of two types of
rules which he describes as primary and secondary rules. Primary rules
are those which lay down standards of behaviour and are rules of
obligation – that is the rules which impose duties. The Secondary rules,
on the other hand, are such rules which specify the rules in which primary
rules may be ascertained, amended, rescinded and enforced. The addition
of secondary rules to a set of primary rules is, says Hart, ‘a step forward
as important to society as the invention of the wheel’. It is this step which
Hart declares as ‘the step from pre-legal into the legal world’. The
combination of primary rules of obligations and the secondary rules of
recognition, says Hart, is the ‘Key to the science of Jurisprudence’. Thus
it is the union of primary and secondary rules which constitute the core of
the legal system and can be justly regarded as the ‘essence’ of law.31

28
. Ibid.
29
. Ibid.
30
. 71 HLR, p. 593.
31
. S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach, supra note 1 at 61
According to Hart the regime of primary rules suffer from doubt or
uncertainty as to the question about what the rules of community are or
what is their exact scope. The remedy for uncertainty is the introduction
of what Hart calls the rule of recognition which authoritatively settles
what the rules are or what their scope is. The rule of recognition provides
the criterion for identifying the valid law. It is the rule of recognition
which provides the standard to distinguish things which are law and
which are not law. This rule of recognition is analogous to Austin’s
sovereign. Rules of recognition like Austin’s sovereign just exist, while
the latter die the former fade away (into disuse). ‘The rule of recognition’
Hart concludes ‘exists only as a complex but normally concordant
practice of the courts, officials and private persons in identifying the law
by reference to certain criteria. Its existence is a matter of fact’. As it is
not possible to question the legal validity of the commands of an
Austinian sovereign, neither can we question the legal validity of Hart’s
rule of recognition. In short, the rule of recognition is Hart’s important
feature of positivistic theory of law in the twentieth century.32

According to Professor Hart, rules of a legal system has, what he calls the
‘internal aspect’ or inner point of view. Hart says, law depends not only
on external social pressures which are brought to bear on human beings to
prevent them from deviating from rules but also on the inner point of
view that human being takes towards a rule conceived as imposing an
obligation. In case of a society which has no more than a set of primary
rules, it would be necessary for citizens not only generally to obey the
primary rules but also consciously to view such rules as standards of
behaviour violation of which are to be criticized. Likewise the internal
point of view law relates not only to a body of citizens but to officials of
the systems also. These officials not merely ‘obey’ the secondary rules
but must taken an ‘inner view’ of these rules.33

Hart rejects the idea of Kelsen that a basic norm is an essential

presupposition of all legal systems. In simplier form of society we may
have to wait and see whether a rule gets accepted or not. The rules of
such society are binding of they are accepted by the community, but of
course, they would not be rules if they were not accepted.34

Hart also makes criticism on Kelsen’s International Law Theory.

32
. Ibid, p. 62.
33
. Ibid.
34
. M.D.A. Freeman ,supra note 7 at 353.
CONCLUDING REMARKS

The researcher has already accepted the contribution of the juristic works
of Kelsen and the researcher would like to criticize Kelsen’s thesis in this
concluding part of this project.

Some writer criticized Kelsen’s theory is not pure because the

effectiveness of the Grund norms depends on sociological, political
factors also.

Kelsen pointed out that the Grund norm is presupposition that the
constitution ought to be obeyed. Here the researcher thinks that a
constitution of a country is a political document and so the Grund norm is
not pure.

Kelsen also pointed out that law should be kept-free from morality. A
general question should be raised here, whether is it possible to keep law
free from morality? Kelsen made emphasis in the effective of law and by
this way he indirectly accepted the morality as a part of effectiveness. He
also propounded that if ‘X’ happens then ‘Y’ ought to be happen by this
proposition he also indirectly supported the value.

Prof. Stone observes: ‘The social effects and question of justice excluded,
though from all the side-doors and backdoors of his pyramid of norms,
the front-door is wider open to both.’

Prof. Laski says, ‘Granted its postulates, I believe the pure theory to be
unanswerable but I believe also that its substance is an exercise in logic
and not in life.’

One of the great drawback of Kelsen’s theory that he did not make any
kind of the measure regarding the effectiveness. There is no demarcating
line under the idea of effectiveness. Kelsen drew no distinction between
effectiveness which makes people obliged to obey and effectiveness
which makes people under an obligation to do so.

In Kelsen theory it is significant that the state is just like a set of human
behaviour and set of social compulsion. But in reality a state is
constituted by territory, independent government, population and ability
to enter into relation to any other state but he over looked this points. He
tried to put the idea that the state and legal orders are identical but all
legal ordered is not state like highly decentralized ordered such as in
primitive communities.

The pure theory is demanded that a Grund norm be discovered, if there

are conflicting possibilities then there are no guidance in choosing
between them. But in the aspect of international laws there are two Grund
norms one is supreme municipal system and another is supreme
international system. So here are two conflicting supremacy and then the
Kelsen’s theory is failure to give the guidance regarding the conflicting
Grund norm.

Kelsen’s theory over the international law can be criticized by this

manner that international law is based on, pacta suntan servanda’. It is the
matter of custom, good faith, ethics etc. but Kelsen tried to keep law
separate from ethics and custom and so his theory is not a pure theory.

Regarding the sanction under international law that is the war and reprisal
is also under the custom.

According to the sociological jurist law is not a norm but social facts. On
the other hand the historical school thinks that law is custom but not the
norms.
Friedmann states –
“The merciless way in which Kelsen has uncovered the political ideology
hidden in the theories which profess to state objective truth has had a very
wholesome effect on the whole field of legal theory. Hardly a branch of it,
whether natural law theories, theories of international laws, or corporate
personality of public and private law has remained untouched. Even the
bitterest of the Vienna School have concluded that it has forced legal
theory to reconsider its position.”

***********************************************************
 BIBLIOGRAPHY
1. Pure theory of law-
By Kelsen