Kelsen’s Pure Theory of Law

Hans Kelsen’s Pure Theory of Law aims to describe and analyze law independently of moral, political, or social influences. This approach is often called a “positivist” theory, focusing on what the law is rather than what it ought to be. Here are the key principles of Kelsen’s theory:

1. Law as a Normative System

Kelsen defines law as a system of norms or rules that dictate certain behaviors or obligations. Each legal rule is a norm that prescribes what ought to happen if certain conditions are met, such as penalties for certain actions.

2. The Separation of Law and Morality

Kelsen emphasizes a clear distinction between law and morality. For him, the validity of a legal norm does not depend on its moral value. A law can be valid even if it’s morally questionable, as long as it is part of the legal order.

3. The Basic Norm (Grundnorm)

The Grundnorm or “basic norm” is a hypothetical fundamental norm from which all other norms in a legal system derive their authority. This basic norm provides the foundation for the validity of all other legal norms within a given legal system, though it is itself not derived from any other norm within that system.

4. Hierarchy of Norms

Kelsen proposes a hierarchical structure of norms where lower-level norms (such as statutes) derive their validity from higher-level norms (such as constitutions). This structure ensures that the entire legal system is grounded in the Grundnorm.

5. Law as Science

Kelsen views legal science as a way to objectively study law as a normative system, much like the natural sciences study the physical world. He believed law could be studied “purely,” without influence from external factors like politics or sociology.

6. No Room for Subjective Interpretation

In his pure theory, Kelsen argues that legal interpretation should be as objective as possible, avoiding subjective values or the interpreter’s personal beliefs. Legal science should focus on describing and interpreting the law, not judging it.

Summary

Kelsen’s Pure Theory of Law provides a systematic way to understand law strictly as an autonomous field, free from external ethical, political, or social considerations. This approach had a profound impact on legal theory, especially in shaping the study of law as a normative science.