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INTRODUCTORY REMARKS
takes validity from the Ground norm. In his Pure Theory of Law says
Kelsen, that law should be kept pure from extra legal affairs.
But Prof. H.L.A. Hart propounded that law is Union of Primary and
Secondary Rules. He also said about the minimum content of morality
within the framework of Analytical School. Here Kelsen established the
normative character of law. On the other hand Hart gave emphasis on
rule. It is core reality that Austin, Kelsen and Hart established the
coercive character of law in different ways.
The objective and scope of the topic is very wide. A set of behavioural
norm is in every society. The normative behaviour control and regulate
the human being. The pure theory is free from any extra-legal element
and the sanction is also under the scope of the norms.
The research work has been done with the help of doctrinal method which
carries the legal structure, case analysis and the legal framework.
BIOLOGICAL SKETCH
Hans Kelsen The Austrian jurist was born at Prague in 1881 and was
Professor of Law at the Vienna University. He was the judge of the
Supreme Constitutional Court of Austria 1920-30. Subsequently, he came
to England and in 1940 he moved to United States and became Professor
of Law in several American Universities. Of late he was emeritus
Professor of Political Science of the University of California where he
expounded his Pure Theory of Law in the twentieth century which has
evoked world wide interest. Kelsen has been the author of several works
of Austrian Constitution (1920), General Theory of Law and State
(1945), The Pure Theory Law (1934) revised (1960), Principle of
International Law (1952), What is Justice (1957), and many other works.
Kelsen has opposed with determination the tendency on the part of jurists
to broaden the scope of jurisprudence to embrace all social sciences and
has rigidly advocated the separation of law from metaphysics, politics
and sociology. He is disgusted at politics in masqueradings as
jurisprudence. Like John Austin in the nineteenth century Kelsen
challenges both the philosophical and natural law theories of law. He
owed his fame chiefly due to the Pure Theory of Law or the Doctrine of
Pure Law divested of all extra-legal and non-legal elements.1
1
3
4
. Rakesh Kumar, Structural Analysis of the Indian Legal System Through the
Normative Theory. (1999) Journal of the Indian Law Institute. Vol. 41: 3&4 at 501.
. RMW Dias, Jurisprudence (New Delhi: Aditya Book Private Limited, 1994) at 351.
. Edgar Bodenheimer, Jurisprudence (Delhi :Universal Law Publishing Co. Ltd, 2004)
at 101.
Ibid.
norms but not the psychological element. The legal norms are the valid
norm and it is quite pure from extra-legal elements.
(a) Hierarchy of normative relation
The science of law to Kelsen is the knowledge of hierarchy of normative
relation. He builds on Kants theory of knowledge and extends the
theoretical knowledge to law also.6For Kelsen the law consists of norms:
norms can not be derived from facts, but only from other norms. The
relationship between norm is one of imputation not causality.7
According to Kelsen, a dynamic system is one in which fresh norm are
constantly being created on the authority of original, or basic, norm, a
Ground norm; a static system is one which is at rest in that the basic norm
determines the content of those drives from it in additional to imparting
validity to them.8
The Ground norm is the presupposition and the other norms get validity
from the Ground norm. Every country has its own Ground norm from
which the other norm is being originated. The Ground norm is the basic
norm.
Kelsen recognized that the Ground norm need not be the same in every
legal order, but a Ground norm of some kind there will always be,
whether, eg a written constitution or the will of a dictator. The Ground
norm is not the constitution, it is simply the presupposition, demanded by
theory, that this constitution ought to be obeyed. Therefore, the Ground
norm is always adopted to the prevailing state of affair. The Ground norm
only imparts validity to the constitution and all other norm derived from
it.9
The fact that in great Britain the fountain of validity rests with statute,
precedent and immemorial customs does not contradict Kelsens thesis,
for what he contended was that a system cannot be found on conflicting
Ground norms. In Britain there is no conflict between the authority of the
8
9
12
13
14
15
. Ibid.
. W. Friedman, Legal Theory ( Delhi: Universal Law Publishing Co. Pvt. Ltd , 1967) at
276.
. RMW Dias,Supra note 3 at 366.
. Ibid.
. Prof. S.N. Dhayani, Jurisprudence and Indian Legal Theory (Allahabad: Central Law
Agency, 2002)at58
RMW Dias,Supra note 3 at 103.
.
.
18
.
19
.
16
17
While A.K. Gopalans case gave limitless power to the law maker,
Kesavanda Bharatis case introduced the doctrine of basic structure
according to which the term amendment in Article 368 of the Indian
Constitution means addition or change within the contour of the preamble
or the constitution but not replacement of the constitution or its basic
foundation and structure.
Kelsens Pure Theory provides the principle of judgement in
Kesavananda Bharati, the Grund Norm cannot be replaced except by
revolutionary methods. Basic structure is unamenable, limitless and
indivisible like Austins Sovereign. Kelsens Grund Norm is alterable by
changing the presupposition.
CRITICAL EVALUATION OF THE OBSERVATION NOTED
ABOVE
The researcher thinks that Kelsen has contributed a lot to the Analytical
Positivism School. Kelsen has recognized the broad similarities between
his theory and the imperative theory, but has equally emphasized the
differences.
Austin, by relying on the idea of command as an expression of will,
ignores the normative character of legal rules. A legal norm may bear an
analogy to command but it does not rest on any active will (which is a
fact, or perhaps here, a fiction) but on a higher norm, and is itself merely
a proposition regarding human conduct in a particular form.26
Kelsen agrees with Austin that coercion is one essential feature of law but
he rejects Austins supposed reliance on motivation by fear. Even if
Austin is right as to this, which he probably is not, the question is a
sociological one. The science of law is solely concerned with coercive
measures, directed under definite conditions, as part of the legal norm.
Moreover, so far as legal science is concerned, the sanction is not the
actual punishment operation on the mind of the wrongdoer, but is simply
part of the rules forming the legal system. The application of the penalty
represents the final individualization of a set of legal norms.27
Austin ignores (so Kelsen says) the dynamic process of lawcreating which occurs throughout the hierarchy of norms, and which
derives from the constitution, whether written or unwritten. At each level
26
27
Ibid.
Ibid.
71 HLR, p. 593.
S.N. Dhyani, Fundamentals of Jurisprudence The Indian Approach, supra note 1 at 61
.
.
34
.
32
33
Ibid, p. 62.
Ibid.
M.D.A. Freeman ,supra note 7 at 353.
CONCLUDING REMARKS
The researcher has already accepted the contribution of the juristic works
of Kelsen and the researcher would like to criticize Kelsens thesis in this
concluding part of this project.
Some writer criticized Kelsens theory is not pure because the
effectiveness of the Grund norms depends on sociological, political
factors also.
Kelsen pointed out that the Grund norm is presupposition that the
constitution ought to be obeyed. Here the researcher thinks that a
constitution of a country is a political document and so the Grund norm is
not pure.
Kelsen also pointed out that law should be kept-free from morality. A
general question should be raised here, whether is it possible to keep law
free from morality? Kelsen made emphasis in the effective of law and by
this way he indirectly accepted the morality as a part of effectiveness. He
also propounded that if X happens then Y ought to be happen by this
proposition he also indirectly supported the value.
Prof. Stone observes: The social effects and question of justice excluded,
though from all the side-doors and backdoors of his pyramid of norms,
the front-door is wider open to both.
Prof. Laski says, Granted its postulates, I believe the pure theory to be
unanswerable but I believe also that its substance is an exercise in logic
and not in life.
One of the great drawback of Kelsens theory that he did not make any
kind of the measure regarding the effectiveness. There is no demarcating
line under the idea of effectiveness. Kelsen drew no distinction between
effectiveness which makes people obliged to obey and effectiveness
which makes people under an obligation to do so.
In Kelsen theory it is significant that the state is just like a set of human
behaviour and set of social compulsion. But in reality a state is
constituted by territory, independent government, population and ability
to enter into relation to any other state but he over looked this points. He
tried to put the idea that the state and legal orders are identical but all
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