jurisprudence

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IV Semester

Jamia Millia IslamiaIram Peerzada

[jurisprudence]

KELSENS THEORY OF LAW

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 couldnt catch during the process of the class.

AN ANALYSIS OF THE KELSENS THEORY OF LAWINTRODUCTORY REMARKSIt is said that Kelsens 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 Kelsens 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. Kelsens 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 SKETCHHans 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.

CRITICAL ANALYSIS OF HIS GROUND NORM AND HIERARCHY OF NORMS WITH REFERENCE TO HIS PURE THEORY OF LAW AND ITS 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. 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). 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.

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 Kelsens 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.

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.

(a) Hierarchy of normative relation

The science of law to Kelsen is the knowledge of hierarchy of normative relation. He builds on Kants theory of knowledge and extends the theoretical knowledge to law also.For 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. 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.

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.

The fact that in great Britain the fountain of validity rests with statute, precedent and immemorial customs does not contradict Kelsens 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.

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.

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.

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.

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 Austins 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.

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.

Effectiveness and ValidityThe discussion of effectiveness and validity will make the framework of the thesis advanced by Kelsen complete. Kelsens effectiveness is Austins 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.

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.

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, 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.

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 that it is in Pacta Sunta Servanda. He says that the sanctions of International Law are war and reprisals. (a)APPLICATION OF KELSEN THEORY IN THE INDIAN SCENARIOThe 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.

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 Kelsens 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 sovereigns caprice can become the law.

INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAWIn the case of A.K. Gopalan v/s State of Madras, 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, the Supreme Court of India adopted an interpretation which brought Article 21 of the Constitution of India 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 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. Gopalans case gave limitless power to the law maker, Kesavanda Bharatis 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. Kelsens 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 Austins Sovereign. Kelsens Grund Norm is alterable by changing the presupposition.

CRITICAL EVALUATION OF THE OBSERVATION NOTED ABOVEThe 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.

Kelsen agrees with Austin that coercion is one essential feature of law but he rejects Austins 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.

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.

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 orders 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.

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 described 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. Harts 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 Austins 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.

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 Austins sovereign. Rules of recognition like Austins 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 Harts rule of recognition. In short, the rule of recognition is Harts important feature of positivistic theory of law in the twentieth century. 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.

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.

Hart also makes criticism on Kelsens International Law Theory.

CONCLUDING REMARKSThe researcher has already accepted the contribution of the juristic works of Kelsen and the researcher would like to criticize Kelsens thesis in this concluding part of this project.

Some writer criticized Kelsens 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 Kelsens 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 Kelsens theory is failure to give the guidance regarding the conflicting Grund norm.

Kelsens 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.***********************************************************

BIBLIOGRAPHY1. Pure theory of law- By Kelsen

.S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach (Allahabad : Central Law Agency,2004) at 24.

.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.

.RMW Dias, Jurisprudence (New Delhi: Aditya Book Private Limited, 1994) at 351.

.Edgar Bodenheimer, Jurisprudence (Delhi :Universal Law Publishing Co. Ltd, 2004) at 101.

.Ibid.

.Dr. B.N. Mani Tripathi, Jurisprudence (Faridabad: Allahabad Law Agency,1999) at 59.

.M.D.A. Freeman, Lloyds Introduction to Jurisprudence (London: Sweet and Maxwell Ltd,1994) at 272.

. RMW Dias, Jurisprudence ,Supra note. 3 at p. 359.

.Ibid.

.Ibid.

.W. Friedman, Legal Theory ( Delhi: Universal Law Publishing Co. Pvt. Ltd , 1967) at 276.

.RMW Dias,Supra note 3 at 366.

.Ibid.

.Prof. S.N. Dhayani, Jurisprudence and Indian Legal Theory (Allahabad: Central Law Agency, 2002)at58

.RMW Dias,Supra note 3 at 103.

.Rakesh Kumar, supra note 2 at 502, 503.

.Ibid.

.(1994) 2 AII E.R. 220.

. M.D.A. Freeman, Lloyds Introduction to Jurisprudence ,supra note 7 at 62.

. Ibid.

21. Means Righteousness (Dharma) is that which sustains the people or that which is

adopted by meritorious souls.

.Rakesh Kumar,supra note 2 at 510.

.1950 S.C.R. 525.

.1978 A.I.R. 597.

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

M.D.A. Freeman, supra note 7 at 280.

.Ibid, p. 281.

.Ibid.

.Ibid.

.71 HLR, p. 593.

. S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach, supra note 1 at 61

.Ibid, p. 62.

.Ibid.

.M.D.A. Freeman ,supra note 7 at 353.

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