The Pure Theory of Law is Theory of Positive Law. State and Explain this Theory.
1. Introduction:
The pure theory of law was counseled by the redoubtable Austrian Jurist and philosopher of the twentieth century Hans kelsen. His ‘pure theory of law’ has been addressed by Lloyd and Freeman to be the most illuminating analysis of the legal process this century. The pure theory of law is a theory of positive law, as a theory completely apprehensive with the accurate definition of its subject matter. It wants to discover only what is in the law, not what ought to be .Let this be addressed with particular emphasis to those who counter the pure theory of law by saying that law is not ‘ought’ but an is a reality. For it is the pure theory of law in relation itself that emphasizes in relation to justice that reality, that is the positivity of law, regardless of the fact that this legal positivism law in a relation to nature, that is, to the causally determined actual behavior of people-is an ‘ought’. The pure theory of law considers it as one of its main tasks to free the science of law from relies of animism, which plays a particularly dangerous role whenever jurists operate with the concept of juristic person. Kelsen’s pure theory of law is different from other positivist’s theory but this theory also has some loopholes like other positive theories. The Pure Theory of Law, with its insight into the hierarchical structure of the legal order, has first grounded theoretically. The assertion that the so called application of law by courts and administrative authorities is true law creation, By seeing statutes merely as a frame that must be filled in by the law producing action of the judiciary and administration, by seeing decisions and administrative action as merely the continuation of a process of law-production in which legislation represents only a preliminary stage. the Pure Theory of Law, based on the conclusions of Free Law, emphasizes that generally it is a majority of individual norms, of decisions or administrative actions that is possible on the basis or within the frame of a statute, that the opinion that, in a particular case, only one decision or administrative action is possible, only one is the correct one, is an illusion created by theory in order to provoke a sense of legal certainty in a law seeking public and in the law seeking authorities a consciousness of being most strictly bound. It is already this attitude that prevents the Pure Theory of Law from preferring a particular interpretive method.
2. A. The Background of pure theory of law:
The pure theory of law is as its name indicates a theory of law[1]. The way in which a theory is elaborated is determined by its object. In order to apprehend the peculiarity of a theory of law, we must know the nature of its object. It is a science of law. Thus, ‘The pure’ theory of law means that it is concerned solely with the part of knowledge which deals with law and attempts to free the science of law from all foreign elements. The traditional legal philosophies at the time were a Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle”
2. B. Why Pure:
Kelsen’s argued that law could be identified solely by its form and not by its content and so his theory as he said was pure. Thus, his aim was to explain law and legal concepts in a way free from the taint of any other discipline such as psychology, morality, history, philosophy or sociology, and distinguished even from justice, hence he said its description as a Pure Theory. The statement that law represents a reality says hardly anything. Everything depends on determining what kind of pure, since it obviously cannot be the reality of nature. Only the Pure Theory of Law clearly recognizes the problem of the specific reality of law as the problem of the positivity of law and tries to solve it. It would be pure in a sense analogous to that in Kant’s Metaphysical Foundations of Natural Science. It would set out a priori a holy ‘pure part’ of legal science, consist of a feck in framework of fundamental concepts. Here’s a quire one. Then, in an empirical part of legal science, this framework would be applied to empirical material so as to understand that material as ‘law’. The science, in both its parts, would also be ‘pure’ in a bleed in second sense in be in solely descriptive excluding from the science any element of evaluation. The core subject matter of legal science, for Kelsen, is legal norms. Sure this is it. He defines a ‘norm’ as ‘the mean in of an act of will, thus, for Kelsen a bleed in norm does not necessarily have any element of generality hence not all norms are rules. Indeed, as the mean of an act of will, a norm is not intrinsically rational depart in from Kant both back toward David Hume as well as in the bleed in’ direction of contemporary philosophical positivism, Kelsen denies the oul’ existence of practical reason.
3. a. Positive law:
On the other hand, positive law links the legal condition to the legal consequence a conditioned consequence. According to the pure theory, the legal rule says if A is then B ought to be. They ought is a pure priori category which expresses no moral or political value between A and B. Kelsen says there is no cause and effect between A and B. The example Kelsen gives is that punishment does not always follow a relict as cause upon effect. The legal rule, therefore, only expresses a hypothetical judgment, ‘if someone steals he ought to be punished’. The ‘ought statement’ is the hypothetical judgment because A may steal and not be punished. Here the law is not followed so there is no cause and effect. Here the rule of law is different from the rule of nature because while natural science describes its objects by the principle of causality, law describes its objects by the principle of normatively or imputation. Therefore, a normative rule is valid even if it is unenforced.
3. b. Differentiation of positive law from law of nature:
The pure theory of law separates the concept of the legal completely from that of moral norm and establishes the law as a specific system independent even of the moral law. Kelsen’s pure theory of law establishes the law as an independent entity devoid of any impurities. His aim is to free law from the value judgments common to other sciences; his pure theory seeks to free the science of law with a methodology that avoids any reliance on politics, ethics, theology, psychology or biology.
4. Ought:
Although Kelsen was very much a positivist the word ‘ought’[2] occurs throughout his theory. It is a legal ‘ought’ not very different from Raz’s own use neither of the word nor for that matter from Hart’s obligation and refers to the action of officials rather than to those of ordinary citizens. Ought is the subjective meaning of every act of will directed at the behavior of another. But not every such act has also objectively this meaning, only if the act of will has also the objective meaning of an ‘ought’. A norm is objectively valid when it is authorized by a higher norm and the later will be objectively valid only if it is itself authorized by an even higher norm. Hume famously argued that any practical argument that concludes with some prescriptive statement, a statement of the kind that one ought to do this or that would have to contain at least one prescriptive statement in its premises. If all the premises of an argument are descriptive, telling us what this or that is the case then there is no prescriptive conclusion that can logically follow. Kelsen took this argument very seriously. He observed that the actions and events that constitute say the enactment of a law are all within the sphere of what is the case they are all within the sphere of actions and events that take place in the world. The law or legal norms are within the sphere of “ought”, they are norms that purport to guide conduct. Thus to get an “ought” type of conclusion from a set of is premises, one must point to some ought premise in the background, an ought that to confers the normative meaning on the relevant type of is. Since the actual, legal, chain of validity comes to an end, we inevitably reach a point where the ought has to be presupposed
5. A. The Basic Norm:
Law for Kelsen was a specific type of social technique namely the technique of getting people to do things by imposing sanctions on them if they did not do them. Therefore, for Kelsen law is an order of standard human behavior which designates a specific technique of social organization. By this he means that law is a mechanism for making people does things. It is that the technique is essentially one of coercion by the systematic use of sanctions and is applied by agents or officials authorized by the legal order to apply sanctions. Thus a Basic norm is a direction to an official to apply a sanction when certain circumstances arise. The main challenge for a theory of law as Kelsen saw it is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence or legal science to other domains. The law, Kelsen maintained is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning. Attach a legal-normative meaning to certain actions and events in the world, a higher legal norm that authorized the enactment of the US Constitution. At this point Kelsen famously argued one must presuppose the legal validity of the Constitution. At some stage in every legal system that gets to an authorizing norm that has not been authorized by any other legal norm and thus it has to be presupposed to be legally valid. The normative content of this presupposition is Kelsen has called the basic norm[3]. The basic norm is the content of the presupposition of the legal validity of the constitution of the relevant legal system. Kelsen assumes however, that the scientific representation of an ‘ positive-legal order as a bleed in hierarchy of legal propositions must have a feck in guarantor of unity. Lord blesses us and save us. This guarantor cannot be other than an component of the feck in representation hence a holy legal proposition. Bein’ a legal proposition it counts as a representation of an actual norm be dad. So Kelsen calls it elliptically a bleed in basic norm. Kelsen was always aware that a constitution might or might not be a feck in single document. In some legal orders indeed it can be difficult to draw a line between ‘constitutional’ and other norms. To presuppose a basic norm for a particular positive-legal order does not involve any moral or other extra-legal evaluation of the basic norm’s requirement of obedience. 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 normatively of law. The third function is to explain the systematic nature of legal norms. These three issues are not unrelated.
These are also separate legal systems manifesting a certain cohesion and unity. This systematic unity Kelsen meant to capture by the following two postulates:
1. Every two norms that ultimately derive their validity from one basic norm belong to the same legal system.
2. All legal norms of a given legal system ultimately derive their validity from one basic norm.
Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that they are both inaccurate at best. Two norms can derive their validity from the same basic norm, but fail to belong to the same system as.[4] Even if Kelsen erred about the details of the unity of legal systems, his main insight remains true and quite important. It is true that law is essentially systematic, and it is also true that the idea of legal validity and law’s systematic nature are very closely linked. Norms are legally valid within a given system, they have to form part of a system of norms that is in force in a given place and time. Eventually, Kelsen accepted the criticism that the bleed in concept of a holy basic norm involves an infinite regress, if the feck in basic norm of a bleed in particular positive legal order is an authorizing norm, the bleed in source of the authority of the feck in basic norm itself. If is and ought are to remain entirely separated that can only be a holy still more basic norm and then the same question could be asked again and so on infinitely. At this point Kelsen took a feck in further step back, accept in that the bleed in concept of a bleed in basic norm is doubly contradictory. It is self-contradictory in that it involves an infinite regress. In addition, since no such norm actually exists to presuppose the feck in existence of such a norm contradicts reality. So it is the concept is a full fiction in the sense to be found in Hans Vaihinger’s philosophy. One might have thought that Kelsen would have opted for a negative answer here, after the entire basic norm is a presupposition that is logically required to render the validity of law intelligible. This would seem to be the whole point of an antireductionist explanation of legal validity. Since we cannot derive an ought to from an some ought must be presupposed in the background that would enable us to interpret certain acts or events as having legal significance. Kelsen, however, quite explicitly admits that efficacy is a condition 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. In fact, as we shall see below, Kelsen had no choice here. And this is precisely why at least one crucial aspect of his anti-reductionism becomes questionable.
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5. b. Secondary Legal Norm:
Thus it appears that the law prescribing the sanction is the primary norm and it applies to officials not to citizens. The citizen merely creates the circumstances by committing a relict that triggers the officials to apply the norm. Therefore, if a citizen commits a relict or wrong gives raise to the circumstances under which an official ought to apply a sanction, that citizen has not done anything contrary to that norm simply because it is directed at the officials. Thus, he says that officials only can genuinely break the law, because when we are speaking of the citizen we are only talking of him or her committing a relict, which is fulfilling the condition for the application of a sanction by an official. These prescribed circumstances or relict can be referred to as ‘secondary norm’
6. A. The Normatively of Law:
Kelsen thought that the basic norm helps to explain the sense in which law is a normative domain and what this normatively consists in. The first and crucial point to realize is that for Kelsen the idea of normatively is tantamount to a genuine “ought” as it were. It is a justified demand on practical deliberation. 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 normatively of law can only be explained as one would explain the normatively of morality or religion for that matter, namely in terms of valid reasons for action. But then the problem for Kelsen is how to explain the difference between the normatively of law and that of morality. If legal “ought” is a genuine “ought”, Kelsen’s conception of legal normativity turns out to be a form of Natural Law completely relatives 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. That these two basic norms or points of view can come apart is nicely demonstrated by Kelsen’s comment that “even an anarchist if he were a professor of law could describe positive law as a system of valid norms, without having to approve of this law”. The anarchist does not endorse the legal point of view as one that reflects her own views about what is right and wrong. Anarchism is understood here precisely as a rejection of the normative validity of law. However, even the anarchist can make an argument about what the law in this or that context requires. When she makes such an argument, she must presuppose the legal point of view, she must argue as if she endorses the basic norm of the relevant legal system. Joseph Raz has called these kinds of statements “detached normative statements”; the anarchist argues as if she endorses the basic norm, without actually endorsing it. Another example that Raz gave is this: suppose that at Catholic priest is an expert in Jewish Law the priest can make various interpretative arguments about what Jewish law really requires in this or that context. In such a case, the priest must argue as if he endorses the basic norm of Jewish Law but of course being a Catholic he does not really endorse it. It does not reflect his own views about what is right and wrong. So here is what emerges so far the concept of normatively, 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.
6. b. Law and Power:
The Pure Theory of Law has always been about power. A positive-legal order can be identified when there are norms that regulate their own creation through a bleed in process of authorization and in addition, the order itself is by and large effective. Kelsen does not closely specify by and large but he does attribute effectiveness to coercion. In this respect there is some affinity with John Austin’s command theory of law. But Kelsen’s approach is quite different from Austin’s. Austin finds the feck in defining characteristic of law on the feck in plane of the bleed in signifier in imperative utterances. Kelsen has almost no interest in the bleed in signifier but focuses on the signified. A norm is an utterance that whatever its grammatical form has the mean in ought. Austin and Kelsen also differ in that for Kelsen legal norms are addressed primarily to officials. Officials are directed to apply sanctions to individuals when the individual’s behavior does not conform to a pattern specified in the feck in norm. It is anticipated that individuals in choosing how they will behave will take into account the feck in possibility that an official will apply the sanction. In that way, norms and the orders to which they belong can be effective. However, most if not all jurists now accept. Hart’s point in the Concept of Law, though directed principally against Austin that not all legal norms are coercive some and some of the most important are facilitative. The Pure Theory of Law can accommodate this by accept in that what matters most is not whether particular legal norms are coercive but whether by contain in coercive norms the bleed in legal order as a bleed in’ whole is coercive which Hart does not deny.
7. The Problem with the Pure Theory:
The problem with the pure theory is that Kelsen sees law as a hypothetical judgment. If a law says if someone steals he ought to be punished and a thief escapes punishment. it is not the case that the judge deciding the case sees the law as a hypothetical judgment but that in all probability the thief was able to rely on another law as a defense or that the thief was let off on a technicality. It is not that because the thief escapes punishment because the judge chooses not to enforce the law without reason. Certainly traditional jurisprudence has always claimed the title of scholarship for its decision on the question of the “correct” law originally also for legislation later only for the administration of justice. Lawyer’s class interests are among the factors pressing for such an attitude. One tends to maintain this claim through the superficial cliché sure of cheap success that legal scholarship must serve life or even pulsating life. This is certainly an incontrovertible phrase. But one can serve life through scholarship by attempting with incorruptible objectivity to understand the nature of things and thus the essence of state and law, and one can serve life through politics by willingly and actively implementing values especially enacting and applying laws. Those for whom scholarship is not doing enough by serving objective knowledge actually expect it through the demand that it serve life to serve interests that, as cognition shows can be none other than individual and group interests, even if they pretend to be objective values. It is not scholarship but politics that rails against the Pure Theory of Law with the accusation of formalism. And with this argument, the Pure Theory of Law cannot be refuted by scholarship, by a differing scholarly position. It can only be shouted down by politics with this slogan. But this the Pure Theory of Law does not fear. For the history of the human spirit shows that scholarship and thus also the scholarship of state and law, has always freed itself from the bondage in which politics has always attempted to keep it because the innermost nature of science forces it to be if not something more than at least something other than an instrument in the struggle for power. If there is any point at all upon which one can stand outside the arena of power, then it is science and scholarship, even the science of power which is then a pure theory of state and law.
8. Conclusion:
According to the pure theory of law the basic norm may be presupposed with reference to every coercive order established by acts of human beings and by and large effective. This work, however, neither offers a holy completed general theory of norms nor goes far toward locating’ the bleed in’ Pure Theory of Law within an oul’ general theory of norms. Therefore, Kelson’s pure theory of law is different from other positivist’s theory but this theory also has some loopholes like other positive theories.
9. Bibliography:
Primary Sources
Kelsen’s academic publications span over almost seven decades in which he published dozens of books and hundreds of articles. Only about a third of this vast literature has been translated to English. Kelsen’s two most important books on the pure theory of law are the first edition of his Reine Rechtslehre, published in 1934 and recently (2002) translated. The second edition, which Kelson published in 1960 (translated in 1967) is a considerably extended version of the first edition. In addition, most of the themes in these two books also appear in Kelsen’s General Theory of Law and State.
Secondary Sources
· Kelsen, Hans (1928) “The Idea of Natural Law,” in his Essays in Legal and Moral Philosophy (1973) ed. O. Weinberger, trans. P. Heath .Dordrecht: Reidel.
· Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New York: Russell and Russell.
· Kelsen, Hans (1967). Pure Theory of Law, trans. M. Knight. Berkeley: University of California Press.
· Raz, Joseph (1979). The Authority of Law. Oxford: Clarendon Press.
· Marmor, A., 2001, Objective Law and Positive Values, Oxford: Oxford University Press.
· Paulson, S., 2002, Introduction to Kelsen’s Introduction to the Problems of Legal Theory, p. xvii, Oxford: Clarendon Press.
· Raz, J., 1980, The Concept of a Legal System, (2nd ed.) Oxford: Oxford University Press.
· 1979, ‘Kelsen’s Theory of the Basic Norm’ in Raz, the Authority of Law, pp. 122–145, Oxford: Oxford University Press.
Other Internet Resources
· The Pure Theory as Ideal Type: Defending Kelsen on the Basis of …
www.questia.com/PM.qst?a=o&se=gglsc&d=5000328597
· http://publishing.cdlib.org/ucpressebooks/view?docId=kt209nc4v2&chunk.id=ss1.15&toc.id=ch01&brand=ucpress
· http://www.jstor.org/discover/10.2307/793234?uid=37d=4&sid=56263660843
[1] The theory of laws it is usually called, jurisprudence is one of the oldest sciences, law is a fact, a definite behavior of man which takes place in time a space and can be perceived by our senses. Facts are the object of natural sciences.
[2] The ought element is often added derisively to ridicule Judges who impart their subjective views on the Constitution, and normatively attempt to change the law to reflect their personal tastes.
[3] 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.
[4] In case of an orderly secession whereby a new legal system is created by the legal authorization of another. Nor is it necessarily true that all the legally valid norms of a given system derive their validity from the same basic norm.