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KELSON’S PURE LAW THEORY
QUESTION BANK
Q.1 Define ‘Jurisprudence’ and state salient features of Pure theory of law.
Q.2 Critically examine the scope of Kelson’s pure theory of law.
SHORT NOTES
- Grund norm
- Kelson’s pure theory of law.
I. Kelson’s pure theory of law-
Kelson’s pure theory of law is a theory of positive law based on normative order. He describes ‘law’ as a ‘normative science’[1]. According to Kelson, ‘norm’[2] is a rule forbidding or prescribing certain behaviour.
Austin and Kelson also considered sanction[3] as an essential characteristic of law. However, he calls to sanction the ‘norm’. According to him, ‘law is a primary norm which stipulates sanction’[4].
Like Austin, Kelson separated moral, ideal or ethical elements from the law; therefore, his theory is called a ‘pure theory’. For him, the science of law is knowledge of what law ‘ought’ to be. It is the ‘ought’ character which provides normative character to law. For instance, if X commits murder, he ‘ought’ to be punished for it.
There is a difference between ‘moral’ and legal’ norms.
‘Moral norms’ lacks sanction, whereas legal norms are backed by sanction (i.e. punishment). For instance, living together a man and a woman without marriage is immoral; however, it lacks sanction to punish. (Payal Sharma’s case). However, committing adultery is punishable by the Indian Penal Code.
The Grund Norm[5]–
Kelson describes ‘Grund Norm’ as the Basic norm. The pure theory of law is based on the pyramidal structure of a hierarchy of norms which derive their validity from the ‘Grund norm’. Grund norm determines the content and gives validity to other norms derived from it. According to Kelson, all norms derive their validity/ power from the ground norm. However, he does not answer from where Grund’s norm derives its validity. According to Kelson, jurists need not intrude beyond Grund Norm.
Pyramid of Norms[6]–
According to Kelson, legal science is a pyramid of norms, and the Grund norm is at the top of it. All norms derive their validity from ‘basic norms’ or ‘grund norm’. The subordinate norms are controlled by norms superior to them in hierarchical order. The process of one norm deriving its power from the norm immediately superior to it until it reaches the grund norm is called as ‘concretization’ of the legal system. According to Kelson, Grund norm is independent of any other norm. It does not require any other norm to take its validity and power from. In fact, grund norm is a basic norm beyond which there is no norm. For example, ‘delegated legislation’ in England derives its power from Parent Act (which has authorised delegation), and the Parent Act derives its power from the legislative body. The legislative body derives its validity or power from the constitution. Beyond the constitution, there is no norm. Therefore constitution is a grund norm.
For Kelson basic norm is the result of social, economic, political and other conditions and is valid in itself.
II. Criticism-
Undoubtedly, Kelson’s Pure Theory has made a substantial contribution to jurisprudence. Pure law theory has separated law from elements of justice, morality, ethics etc. However, the theory is criticized on the following grounds-
1) Divorce between law and morality[7]–
The theory is called ‘pure’ because it frees law from morality and ethics, as mentioned by Austin. But in fact, the law cannot be totally separated from morality.
2) Theory without a sociological foundation[8]–
Kelson’s theory excludes all references to social factors, i.e. politics, ethics etc. However, he says that grund norm is an outcome of social, political or other factors.
3) The concept of grund norm is vague and impure-
If according to Kelson, the concept of grund norm is fiction, then its’ subsequent effect, i.e. derived norms are also not pure.
4) No practical use-
According to some jurists ‘pure law’ theory is based on hypothetical consideration and, therefore, is without any practicality.
III. Positivism in India-
The important characteristics of analytical positivism are (i) the Sovereign or Grund norm which creates law, (ii) the Importance of law as a pure science separated from morality and ethics etc., (iii) Sanction, i.e. coercive force behind the enforcement of the law. Thus, positivism presupposes sovereignty above the law.
However, in Ancient Hindu jurisprudence, there was the concept of Dharma and the king was also bound by the Raj–Dharma (i.e. Duties of the king), and the king was also subject to Raj-dharma, i.e. even the king was also not above the law. However, the concept of sanction, i.e. danda was also in existence.
The codification of law started under British rule. To some extent, they brought the principles of justice, equity and a good conscience; however, by and large, codification was based on Austinion theory of law as a command of the sovereign. The laws for British India were made in the British Parliament. They were devoid of the Indian concept of morality and ethics.
After independence, the constitution was drafted and which is called as grund norm in Kelson’s sense. Indian positive law is applied in the form of legislation; however, it is different from the true concept of Austin and Kelson. In India, while making law, the elements of ethics and morality were taken into consideration. While interpreting laws, the Supreme Court sometime has adopted a restrictive or positive approach and sometimes a liberal and humanitarian approach.
In short, the concept of law as a command of a sovereign is not truly or purely applicable in democracies like India. While making law, legislatures take a number of things into consideration to cause social change. In fact, in democracy, sovereignty lies in peoples’ will and not in a particular person or body.
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[1] नियम शास़्त्र [कानून विज्ञान ]
[2] नियम [ नियम ]
[3] शिक्षा किंवा दंड [दंड या दंड ]
[4] कायदा हा प्राथमिक नियम असून त्यांना दंड अभिप्रेत असतो [कानून प्राथमिक नियम हैं और उनका उद्देश्य दंड देना है ]
[5] मुख्य नियम [मुख्य नियम]
[6] नियमांची उतरंड [नियमों का पदानुक्रम]
[7] कायदा व नैतिकतेत फरक [कानून और नैतिकता के बीच अंतर ]
[8] सामाजिक पाया षिवायचासिध्दांत [शिवाय सिद्धांत में सामाजिक नींव ]