“The pure theory of law is a theory of positive law”-Explain.

1. 1.      Introduction

The pure theory of law is a theory of positive law in general not a specific general order. It is a common theory of law, neither a presentation nor international legal norms. However, it offers theory of interpretation and seeks to discover the nature of law itself to determine its structure and its typical forms, independent of the changing content which it exhibits at different times among different peoples.

As a theory its sole purpose is to know its subject and attempts to answer the question about what the law is, not how it has to be. The pure theory of law is a science of law, not legal politics. The jurisprudence Kelsen stated in first page of his most famous book, The Pure Theory of Law (1934):

“It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of law purified of all political ideology and all natural-scientific elements and conscious of its particular character because conscious of the particular laws governing its object. Right from the start, therefore, my aim was to raise jurisprudence, which openly or covertly was almost completely wrapped up in legal-political argumentation [Raisonnement], to the level of a genuine science, a science of mind [Geistes-Wissenschaft].”[1]

The pure theory of law explains the law and attempt to eliminate from the object of this description everything that is not strictly law. Its aim is to free the law from unwanted component. During nineteenth and twentieth century this traditional science of law clearly shows how far it is removed from the postulate of purity. The pure theory of law is a mixture of psychology, sociology, ethics and political theory. According to Stewart:

“The pure theory of law undertakes to delimit the cognition of law against these disciplines, not because it ignores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines which obscures the essence of the science of law.”[2]

However, the pure theory of law is a ‘pure part’ of legal science, consisting of a framework of fundamental concepts. It is an empirical part of legal science; this framework would be applied to practical (sociological, historical and so on) material so as to understand that material as ‘law’.

1. 2.      The pure theory of law

The pure theory of law is, as it name indicates, a theory of law. The way in which a theory is elaborated is determined by its object. In order to apprehend the individuality of a theory of law, we must know the nature of its object.

The Pure Theory of Law is a general theory of law that conforms to the requirements of legal positivism.[3] As such, it aims to understand the law as it is, not as it ought to be, and its method is structural analysis. More specifically, it provides us with a set of fundamental legal concepts – such as ‘legal system, ’norm,’ ‘right,’ ‘duty,’ ‘sanction,’ and ‘imputation’ – that we can make use of when trying to understand and describe the law in a scientific manner. We might say that the Pure Theory aims to lay down the theoretical basis for other legal disciplines, such as contract law, constitutional law, legal history, comparative law, etc. The Pure Theory conceives of law as a system of norms, which norms function as schemes of interpretation in light of which we can view human behavior and other natural events.

Adding to this the pure theory of law is a theory of positive law; a general theory of law, not a presentation or interpretation of a special legal order. From a comparison of all the phenomena which go under the name of law, it seeks to discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples.

1. 3.      The Basic Norm

The word “norm” can mean two things either descriptive regularity or prescriptiveness. Basic norm is a concept in the Pure Theory of Law created by Hans Kelsen, who is a jurist and legal philosopher. He uses the word “norm” in the prescriptive sense. When he uses the word “normative,” he means something that is prescriptive, something that must be done. A basic norm is ‘presupposed’ in legal science for each order of positive law, to make it possible to understand that material as an order of positive law. It is ultimately a sort of act of faith. It is the belief in a principle beyond which one cannot go and which ends up being the foundational principle for all subsequent legal statements.

The idea of the basic norm serves three theoretical functions in Kelsen’s theory of law. The first is to ground a non-reductive explanation of legal validity. The second function is to ground a non-reductive explanation of the normativity of law. The third function is to explain the systematic nature of legal norms. These three issues are not un-related.[4]

Basically, legal norms certainly come in systems. There are no free-floating legal norms. A norm is efficacious if it is actually followed by the relevant population. Thus, “a norm is considered to be legally valid”. Efficacy is not a condition of legal validity of individual norms. Any given norm can be legally effective even if nobody follows it. Nevertheless, a norm can only be legally valid if it belongs to a system, a legal order that is by and large actually practiced by a certain population.

The basic norm is a assumption that is logically required to purify the validity of law intelligible. This would seem to be the whole point of an anti-reductionist clarification of legal validity. Since we cannot derive an “ought” from an “is”, some “ought” must be accepted in the background that would enable us to understand certain acts or events as having legal consequence. Kelsen, however, quite explicitly admits that efficacy is a state of the validity of the basic norm: A basic norm is legally valid if and only if it is actually followed in a given population. And this is precisely why at least one crucial aspect of his anti-reductionism becomes questionable.

According to positive theory of law the validity of positive law rests on a basic norm which is not a presupposed norm, hence not a norm of positive law whose validity is founded on the basic norm.

1. 4.      The Normativity of Law

The first and crucial point to realize is that for Kelsen the idea of normativity is equivalent to a genuine “ought”, as it were; it is a justified demand on practical consideration. A certain content is regarded as normative by an agent if and only if the agent regards that content as a valid reason for action. As Joseph Raz noticed, Kelsen agrees with the Natural Law tradition in this particular respect; both assume that the normativity of law can only be explained as one would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action.[5]

In other words, Kelsen’s conception of legal normativity turns out to be a form of Natural Law completely relativized to a certain point of view. However, in Kelsen’s theory the relevant point of view is distinctly a legal one, not some general conception of morality or Reason. the concept of normativity, the sense in which normative content is related to reasons for action, is the same across all normative domains. To regard something as normative is to regard it as justified, as a warranted requirement on practical deliberation. However, the difference resides in the difference in points of view. Each basic norm determines, as it were, a certain point of view. So it turns out that normativity always consists of conditional imperatives: if, and only if, one endorses a certain normative point of view, determined by its basic norm, then the norms that follow from it are reason giving, so to speak. In other words, the difference between legal normativity and, say, moral normativity, is not a difference in but only in the relevant vantage point that is determined by their different basic norms. What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, as it were.[6]

1. 5.      Law and Power

Descriptively, the Pure Theory of Law has always been about power. A positive-legal order can be recognized when there are norms that control their own creation through a procedure of authorization and in addition, the order itself is ‘by and large effective’. Kelsen does not closely specify ‘by and large’, but he does quality effectiveness to coercion.

To speak about law is always and necessarily to be engaged in a discourse about both justice and power. While law’s relationship to justice is everywhere conditional and uncertain, law completely separated from power is unthinkable. And, while law need not be virtuous to be law, if it had no effect in the world it could hardly be said to value the name law. Identifying these facts, the series on Law, Justice and Power is intended to take a broad view of legal scholarship. It publishes books by social scientists, humanists and legal academics which connect an understanding of culture’s normative ideals with examination of the complex ways that law works in the world, insists that justice is inseparable from social practices and analyzes law as one form of power, one way of constituting, controlling and changing the social world. The series focuses on state law as well as law in communities and cultural practices and on identities and their articulation in and through law, on law’s power in the taken-for-granted world, on its role in the complex construction of nation and national power and on global developments which today undermine and transform the meaning and significance of law. It invites innovative scholarship that crosses disciplinary as well as geographic and temporal boundaries.

1. 6.      International and National Law

The propensity to blur the border line between international law and national law, the ultimate goal of the legal development directed toward increasing centralization, appears the organizational unity of universal legal community that is the emergence of a world state. However, in cognition of law may we assert the unity of law by showing that we can comprehend international law together with the national legal orders as one system of norms.

However, in traditional theory, international law and national law are two different, mutually independent, isolated, norm systems, based on two different basic norms.

1. 7.      Conclusion

Nothing can better describe Kelsen’s theory of law than Kelsen’s own words. According to Kelsen, the General Theory of Law is a general theory of positive law and positive law is always the law of a define community. He also claims that his general theory is made as a result of a comparative analysis of the different positive legal orders, furnishing the fundamental concepts by which the positive law of a definite legal community can be described. The Pure Theory of Law means that such theory is being kept free from all the elements foreign to the specific method of a science whose only determination is the cognition of law. As a logical consequence of this theory, the existence and validity of the law are no longer attached to morality, justice, religion, history, etc. Rather, a law would be believed valid if it is created in accordance with the mechanism set out within a legal order/system. So, yes the pure theory of law is positive law.

Reference

a)      Books & Acts

• Hans Kelsen (1881–1973), The Pure Theory of Law (1934)
• Professor William R. Long  11/04/04 : The Pure Theory; the Basic Norm from             http://www.drbilllong.com/Jurisprudence/KelsenII.html accessed on 22nd July,     2012
• Hans Kelsen’s pure theory of law: legality and legitimacy

Oxford University Press, Oct 25, 2007 – 230 pages

b)     Online journal & article

• Data retrieved from:                 http://www.jstor.org/discover/10.2307/1334739?uid=3737584&uid=2129&uid=2&uid            70&uid=4&sid=21101098156121 accessed on 22nd July, 2012
• Data retrieved from,

http://plato.stanford.edu/entries/lawphil-theory/

• Data retrieved from

            http://www.pramoctavy.com/

• Data retrieved from

http://papers.ssrn.com/

• Data retrieved from

http://www.britannica.com/EBchecked/topic/483906/pure-theory-of-law accessed on 22nd July, 2012

• Data retrieved from

http://www.shvoong.com/law-and-politics/1794999-state-subject-rights-duties-pure/ accessed on 22nd July, 2012