The pure theory of law was propounded by Austrian jurist and philosopher Hans Kelsen in California (1881-1973). Kelsen began his long career as a legal theorist at the beginning of the 20th century.

 He developed and redefined Austin’s Positivism theory in the 20th-century his book, entitled “Pure Theory of Law”, was published in two editions, one in Europe in 1934, and a second extended edition after he joined the faculty at the University of California at Berkeley in 1960. The pure theory of law was expounded by Hans Kelsen and is a part of analytical positivism.

 According to Kelsen, laws are scattered in the society which creates ambiguity in the source of the law. There are a variety of laws and regulations which have created inequality among the class. There is a kind of confusion in the legal system. Therefore, Kelsen went to develop his pure principle of law to achieve uniformity.

  According to him a theory of law should be uniform. It should be applicable at all times and in all places. 

 Kelsen’s theory of law must be free from all social sciences viz., ethics, history, politics, sociology, economics, etc. In other words, It must be in pure form and completely divorced from other social sciences.

He defined law as normative science and not a natural science.  Basically, the theory of Kelsen is about the concept of norms. According to him, Knowledge of the law is a Knowledge of “norms’ ‘. Norm is a rule forbidding a certain behavior.  His theory is based on the pyramid structure of the hierarchy of norms which derives their validity from the basic norm which is known as Grundnorm.  In this superior norms have control over the norms subordinate to them.  He rejected Austin’s view that ‘law is a command’ because Austin introduces subjective consideration whereas he wanted it as an objective

Key Features of Kelsen’s Pure Theory 

1. Law as Science:

Kelsen tried to present a theory that could be attempted to change Law in science, a theory that could be understood through logic.

2. As a positive law: 

In the first paragraph of the pure theory of law, Kelsen introduces his theory as a theory of positive theory. This principle of positive law is then presented by Kelson as a hierarchy of laws that begins with one basic norm, i.e. Grundnorm ‘, where all other norms are related to each other either being inferior norms.

3. Law “As it is”

 Kelsen emphasized that analysis should focus on the law as ‘it is in fact laid down, not as ‘it ought to be’.

4. Law and morality: 

   Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.

5. The theory of law should be uniform; According to Kelsen, the theory of law should be applied at all times and in all places.

6. Static Aspect of Law:

 Kelsey distinguished the static theory of law from the dynamic theory of law. The static theory of law represented the law as a hierarchy of laws where individual laws were related to each other either being inferior, the one to other, or superior with respect to each other.

THEORY PURE SCIENCE OF LAW.

Kelsen emphasizes on separation of law from politics, sociology, metaphysics, and all other extra-legal disciplines.  He defines ‘science’ as a system of knowledge or a ‘totality of cognitions’ systematically arranged according to logical principles.  Kelsen named his theory “Pure Science of Law” because science is called rational. It must stand in a two-fold relation to its object: 1. Theoretical: It determines the conception of the object. 2. Practical: It establishes its reality.  This theory of Pure Science of law is also known as the “Theory of Interpretation” because it was a reaction against a cruel ideology which was corrupting the legal theory and the jurisprudence of a totalitarian state.  He derives pure science of law from ‘ought propositions’ of juristic science.

LAW AS NORMATIVE SCIENCE.

Kelsen described the law as ‘normative science’ as distinguished from natural science that is based on cause and effect such as the law of gravitation.  In the words of Kelsen, “The principle according to which nature describes its object is a casualty, the principle according to which the science of law describes its object is normativity”.  According to him, the Science of law is knowledge of what law ought to be (das sollen) or not law is (das- sein). It is the ought character that provides normative character to law. E.g. If “A” commits theft he ought to be punished.  Like Austin, Kelsen also considers sanction as an essential element but he prefers to call it the norm. Norm is a rule forbidding a certain behavior.

THE GRUNDNORM

Basically, the theory of Kelsen is about the concept of norms. According to him, Knowledge of the law is a Knowledge of “norms’ ‘.  Kelsen termed his basic norm as Grundnorm. His theory is based on the pyramid structure of the hierarchy of norms which derive their validity from the basic norm or Grundnorm.  According to Kelsen, the Grundnorm may not be the same in every legal system but it is always there, either in the form of a written Constitution or the will of the superior.  Grundnorm is no longer a hypothesis but a fiction of law.  We cannot say whether Grundnorm is good or bad without testing it politically, religiously, and ethnically.

HIERARCHY OF NORMS

According to this theory, Kelsen considered legal science as a pyramid of norms with (Grundnorm) basic norms at the apex.

 In this hierarchical order superior norms have control over the norms subordinate to them. 

In this process norms proceed from downwards to upwards and derive their power from the norm immediately superior to it until it reaches the grundnorm, which has been termed as “concretization” of the legal system.

For e.g.: a statute or law is valid because it derives its legal authority from the legislative body, and the legislative body derives its authority from a norm i.e., the Constitution.

Merits of the Pure Theory of Law 

(1) Kelson recognized International Law as a law

(2) Pure theory of law is best for peaceful change

(3) It makes the most refined development of analytical positivism

(4) Kelson’s concept of the legal system is clearly original and striking

(5) Kelson has explained that no law can prevail country to grundnorm or constitution

(6) Kelson’s Pure Theory of Law is considered to be the most outstanding theory of law

Critical Analysis:-

1. The theory of Kelsen suggests that Grunderm is the concept of the Constitution that ought to be followed. The Constitution of a country is a sociological, political document, and therefore Grundnorm is not pure.

2. Kelsen also said that the law should be kept free from ethics/morality. A general question should be raised here, whether it is possible to keep the law free of ethics/morality? Kelsen insisted on the law to be effective and thus he accepted indirect ethics as a part of effectiveness.

3. Kelsey attempted to change the law into a science, a theory that could be understood through logic, but on the other hand, he emphasized the validity of the Grundnorm to “assumed”, rather than based on some “logic”.

4. Kelsen tried to find the law and legal norms in a middle realm between absolute ethical values and social facts. Therefore, rejection of the relevance of ethics ideas makes the legal science sterile and useless and rejects the factual nature of law that separates it from reality.

 Law is organized through the maintenance of the system stability through the broadness and simplification of its various parts principles and ideological compartments and, in a nutshell, though tending to become a logical system, a perfect and complete logical system.