Acknowledgement

I am feeling highly elated to work on the case law Pure Theory of Law under the
guidance of my faculty of Jurisprudence, Mr.Yasir abbas. I am very grateful to him for his
exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I
have tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant materials regarding to my topic available to me at the
time of my busy research work and gave me assistance. And at last I am very much obliged
to the God who provided me the potential for the rigorous research work.

Pure theory of lawPage 1

TABLE OF CONTENT

Table of cases
Introduction
Historical development of pure theory of law
Biological sketch of Hans Kelsen
Biological sketch of Hans Kelsen
PURE THEORY OF LAW
Justification for name of theory as Pure Theory of Law
Norms and the Basic Norm
Hierarchy of Norms and Law-Making Process
Validity and Effectiveness of Norms
Sanction
Implications of Pure Theory of Law
Criticisms of pure theory of law
INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW
Conclusion

Bibliography

Pure theory of lawPage 2

Table of cases

Keshavnanda bharti v.s union of india AIR 1973 SC 1461

Waman rao v.s union of india AIR 1981 SC 271
A.D.M Jabalpur v.s S.shukla AIR 1976 SC 1207
Maneka Gandhi v.s union of india AIR 1978 SC 597
A.k gopalan v.s state of madras AIR 1950 SC 27
Jilani v. Government of Punjab Pak LD [1972] SC 139
Unni Krishnan v.s state of M.P
Consumer education & research centre v.s union of india

Introduction

Pure theory of lawPage 3

The Pure Theory of Law is a general theory of law that conforms to the requirements of legal
positivism1. 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 idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (18811973). Kelsen began his long career as a legal theorist at the
beginning of the 20th century. The traditional legal philosophies at the time, were, 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
In the words of Prof. Dias, the pure theory of law of Hans Kelsen represents a development in
two different directions. It marks the most refined development to date of analytical positivism.
It also marks a reaction against the welter of different approaches that characterised the opening
of the 20th century. This does not mean that Kelsen reverted to ideology. As a matter of fact, he
sought to expel ideologies of every description and present a picture of law, austere in its
abstraction and severe in logic2. Kelsens analysis of the formal structure of law as a hierarchical
system of norms, and his emphasis on the dynamic character of this process, are certainly
illuminating and avoid some, at any rate, of the perplexities of the Austinian system3. Still, this
theory of Kelsen is criticised on many grounds. These criticisms are further dealt in this project
work. Kelsen was criticised by many Jurists like Julius Stone, Freeman etc., but still the Pure
theory of Law hold stand in the modern world democracies governed by their respective
constitutions.

1 Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945,
2 R. W. M. Dias, Jurisprudence, 1976, London.
3 M. D. A. Freeman, LLOYDS Introduction to Jurisprudence, Sweet 7 Maxwell,
London, 7th ed., 2001, p. 282.
Pure theory of lawPage 4

HISTORICAL DEVELOPMENT OF PURE THEORY OF LAW

As the natural law theory lost some of its credibility owing to its fantastic but unverifiable claims
of universal reason at the end of the 18th century a reaction in the form of legal positivism, the
theory that the true knowledge of law can only be accomplished by observing law as it is, not as
it ought to be, took hold. For a long while, the Imperative Theory of Law propounded by John
Austin held sway but by mid 20th century the principle of the command of the sovereign backed
by force, which had assumed an elevated position in the realm of legal positivism, was in
remission. Its unrepentant insistence on the indispensable place of coercive force melted before
the more dynamic theories preaching the systematic quality and normative nature of law. Pure
theory of norms was one such theory attempting to erode these errors.
Nineteenth century German legal thought had created a general theory of law as a field of
study separate from the philosophy of law or moral considerations of law. Kelsen saw himself
as continuing the project of a general theory of law, but in a way which would remove some of
the errors that still affected this discipline. Thus he asserted for the need of a purified theory of
law Pure theory of law.
Kelsen began his long career as a legal theorist at the beginning of the 20th century. The
traditional legal philosophies at the time, were, 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.
Thus, Kelsen proposed the analysis of a legal system simply as a structure of norms, in other
words of ought- propositions, which could be, within its own terms, valid and illuminating,
regardless of the moral quality of those norms and indeed independent of all extraneous ethical
social, economic or political values. Kelsens scheme had the result of effacing the distinction
between public and private law and between law itself and the state. Each one of the norms that
collectively amount to everything we need by the state, is no more and no less of an oughtproposition than any rule located in any other legal system stripped down to this minimum
quality, all are of the same character.

Pure theory of lawPage 5

Biological sketch of 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 worldwide 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.

PURE THEORY OF LAW

A theory of law must be distinguished from law itself. There is no logic in natural phenomena. A
theory of nature which purports to take out all of them, must be logically self-consistent. Law is
composed of heterogeneous rules, and the function of any theory of law is to organise it into a
clear single ordered pattern.
A theory of law should be pure (purity) or independent of the influences of extra-legal values
of any kind. Thus Hans Kelsen (1881 - 1973) believed and propagated a theory that in its purity
was divorced from all extra-legal elements such as sociology, philosophy, ideology, psychology,
politics, ethics, etc., which elements were to be left to the ists in the metaphysical and ethical
world the sociologists, the psychologists, the ethicists and the moralists. By so doing he
intended to lay the field bare for psychologists, sociologists, psychiatrists and other non-law
exponents to conduct a more illuminating inquiry into these non law elements. To his credit, as
others who reacted against the doctrines of natural law sought for an empirical colander through
which they could sift law in the misguided belief that law was not unlike the natural sciences,
Kelsen was quick to decipher that law belonged, not to the natural sciences, but rather to the
human sciences. He shied away from the content of the law and built his theory on the form.
Kelsens goal is a pure science of law it is not a theory of pure law. He envisages no such
chimera as a pure norm4. Kelsen is not disinterested in Justice or sociology or pshycology. The
4 Cf. J. Harris, Law and Legal Science (1979), pp. 34-35
Pure theory of lawPage 6

pure theory provides the basic forms under which meanings can be known scientifically as legal
norms which will have a content, although the particular content is empirically contingent, and
which, once determined as having a particular content, can be morally evaluated. Thus, far
from being an attempt to exclude consideration of experience, content and justice, the pure
theory is intended to make attention to them more rigorously possible. Therefore the theorys
object of cognitionthe normis seen without reference to its content or to such questions as
why it is (or is not) obeyed. But Kelsen intends thereby to clarify the field for those who are
primarily interested in these questions. That the study of law has been adulterated by other
disciplines is, according to Kelsen, perfectly understandable. These disciplines deal with subject
matters closely connected with law. But the pure theory of law, Kelsen insists, undertakes to
delimit the cognition of law against these disciplines.... because it wishes to avoid the uncritical
mixture of methodologically different disciplines.... which obscures the essence of the science of
law.

Justification for name of theory as Pure Theory of Law:

It was the objective of Hans Kelsen to purify the science of law from all evaluative criteria and
ideological elements. Justice, for example, was viewed by Kelsen as an ideological concept.
Justice, to him, was an irrational ideal representing the subjective predilections and value
preferences of an individual or group.5 the usual assertion , he wrote, that there is indeed such
a thing as justice, but that it cannot clearly be defined, is in itself a contradiction. However
indispensable it may be for volition and action of men, it is not subject to cognition. Regarded
from the point of view of rational cognition, there are only interests, and hence conflicts of
interests.6 The Theory of Law, Kelsen maintained, cannot answer the question of what
constitutes justice because this question cannot be answered scientifically at all. If justice is to be
given any scientifically meaningful denotation, it must be identified with legality. According to
Kelsen, it is just for a general rule to be actually applied in all cases where, according to its
content, this rule should be applied. Justice means the maintenance of a positive order by
conscientious application of it.
Kelsens methodological objectives did not stop with the elimination of political and ideological
value judgments from the science of law7. He wished to go a step further by keeping legal theory
5 Hans Kelsen, General Theory of Law and State, transl. A. Wedberg (Cambridge,
Mass., 1949), p.13
6 Kelsen, The Pure Theory of Law and Analytical Jurisprudence, Harward Law
Review, p. 44, at (1941).
7 The Pure Theory of Law, p.1.
Pure theory of lawPage 7

free from all extraneous, non legal factors. Uncritically, he said, the science of law has been
mixed with elements of psychology, sociology, ethics and political theory.8 He sought to restore
the purity of the law by isolating these components of the work of a lawyer or judge which may
be identified as strictly legal

Norms and the Basic Norm

The purpose of the Pure theory, Kelsen says, is to know and to describe its object9. Kelsen
approached law as the object of his theory-with the aim of identifying the necessary conditions
for its cognition. He claimed that his theory explains how legal phenomena must be interpreted
and organized within a jurists mind, in order for the jurist to perform the task of recognizing
certain norms as binding laws.
Kelsen proposed every legal system as a hierarchical structure, an interwoven unit of norms in
which every norm is dependent for its validity upon a superior norm. Thus to merit the
appellation law there must be some other norm in the form of a backbone conferring validity on
it and this connection is traced all the way back to an ultimate norm, the basic norm or
Grundnorm in which resides the validity of all other norms. The Pure Theory conceives of law as
a system of norms, where norms function as schemes of interpretation in light of which we can
view human behaviour and other natural events.10 Kelsen defined Norm as meaning of an act of
will by which Human behaviour is commanded, authorized and permitted
Norms are regulating setting forth how persons are to behave and positive law is thus a
normative order regulating human conduct in a specific way. A norm is an ought proposition; it
expresses not what is, or must be, but what ought to be, given certain conditions; its existence
can only mean its validity, and this refers to its connection with a system of norms11 of which it
forms a part. It cannot be proved to exist factually, but simply to be derivable from other norms,
and is, therefore, valid in that sense.
But if a norm can only be derived from other norm, theoretically, this means that one can
continue this derivation ad infinitum, but in practice, since norms are concerned with human
conduct, there must be some ultimate norm postulated on which all the others rest. This is the
Grundnorm (the basic norm). So far as the legal system is concerned this basic norm must be
extra legal, since ex hypothesi it does not rest upon another legal norm. But Kelsen is at pains to
8 Kelsen, The Pure Theory of Law, transl. M. Knight (Berkeley, 1967), p. 1.
9 H.Kelsen, Pure Theory of Law, 2nd ed. (Berkeley, 1967) at 1.
10 Kelsen, Hans, General Theory of Law and State, Cambridge, Massachusetts 1945,
11 Kelsen,Hans, Reine Rechtslehre, 2d. ed., Wien 1992 [1960].p. 215-21.
Pure theory of lawPage 8

point out that the choice of basic norm is not arbitrary. On the contrary it must be selected by the
legal scientist on the principle of efficacy, that is to say that the legal order as a whole must rest
on an assumption that is by and large efficacious, in the sense that in the main people do conduct
themselves in conformity with it.
According to Kelsen, the basic norm cannot, unlike the other norms, be justified by reference to
other or more validating law. Thus it may instead derive its validity from the fact of recognition,
acknowledgment and acceptance conferred on it by a sufficient minimum number of persons in
the political entity. Law therefore is not to be isolated from the organised structure and power of
the state. This structure is normative and thus the concept of sanctions which plays a rather
exclusive role in the Austinian doctrine as the element which makes law functional, relies on
other forces such as prosecutors, officials and judges to perform their aspects of the normative
structure before sanctions are activated and inflicted12.

Hierarchy of Norms and Law-Making Process

Kelsens description of the legal process as the hierarchy of norms, the validity of each norm
(apart from the basic norm) resting upon the higher norm and each level in the hierarchy
representing a movement from complete generality to increasing individualism, has sometimes
been misunderstood as suggesting that the interpretation and application of general rules are of
purely mechanical character. This is far from being Kelsens view. On the contrary, he points out
that though law has peculiarity of regulating its own creation, a higher norm can determine the
creation and content of another norm only to a certain extent. In so far as there is discretion or a
choice as to the applicable rule, the norm creating function takes on a political character. This is
obvious in the case of the American Supreme Court interpreting the Constitution, but it is the
same with the application of law by any legal authority. And the function does not cease to be
legal on this account, for it still takes place within the framework of norms.
Kelsen does not negate the value of the sociology of law. This stands side by side with normative
jurisprudence and neither can replace the other. The latter deals with validity and the former
with efficacy, but the two are inter-connected, since the sociology of law presupposes the
normative concept of law. But Kelsen makes a curious distinction between the role of the legal
scientist and of a law making authority, such as a judge. The former can only describe and not
prescribe, and therefore, he cannot exercise any choice open to the latter. The legal scientist,
must therefore, accept any decision as valid, since it is outside his competence to say whether it
is within the framework of the general norm in question. And though, he can point out possible
interpretations, he must leave the law-making authority to make the choice, for to try to influence
this authority is to exercise a political and not a legal function. This seems to involve an act of
12 Curzon, L.B, Jurisprudence, 2nd ed., 1995, London: Cavendish Publishing Ltd., at
p. 57
Pure theory of lawPage 9

renunciation on the part of legal science in which it is hardly likely to acquiesce, and apparently
treats the advocate arguing a case as a politician rather than a lawyer13.

Validity and Effectiveness of Norms

To say that a legal norm is valid, Kelsen explains, is to say that it exists, and to say that it exists
is to say that it ought to be obeyed or applied, that it has binding force. To say that a valid legal
norm expresses an objective ought is just another way of expressing the same idea. Kelsen
maintains, in keeping with the separation thesis, that legal validity is conceptually independent of
morality: There is no kind of human behaviour that, because of its nature, could not be made
into a legal duty corresponding to a legal right. He also maintains, in keeping with the is/ought
distinction, that the validity of a given legal norm can only be explained by reference to the
validity of another and higher legal norm. Thus a norm, n1, is legally valid if, and only if, it was
created in accordance with another and higher legally valid norm, n2, which in turn is legally
valid if, and only if, it was created in accordance with another and higher legally valid norm, n3,
etc.
According to the Pure theory statements about the validity of legal norms presuppose
effectiveness in two ways, a legal norm loses its validity if it has been ineffective for a long time,
if it is a part of a system of norms which is, by and large effective. As for determining the
validity of any particular norm, the citizen must think that it exists or that there is a power behind
it that obligates those whose behaviour it is meant to order. That a norm is effective then, while a
condition of validity, is however not the basis of its validity. In that way the validity of each
norm may be weighed in the scale of the basic norm. Thus, sanctions are what ought to apply
after hurdling certain conditions. The law takes the form of a conditional order directing
officials, not the citizen, on what to do given certain conditions. In Kelsens enlightened view,
the fact that A has committed murder is not of necessity visited by the sanction of death. Rather,
depending on certain conditions imposed by law, A ought to be visited by the sanction of death.
The allowance is for the performance of these officials and judges of the functions that this
normative structure has imposed.

13 M. D. A. Freeman, Lloyds Introduction to Jurisprudence, 8th Edition, 2008, Sweet

& Maxwell publication, at p. 310.
Pure theory of lawPage 10

Sanction
For Kelsen, every system of norms rests on some type of sanction, though this may be of an
undifferentiated kind, such as disapproval by a group. The essence of law is an organisation of
force, and law thus rests on a coercive order designed to bring about certain social conduct.
Sanctions are the key characteristic of law not because of any supposed psychological
effectiveness but because it stipulates that coercion ought to be applied by the officials where
delicts are committed. The law attaches certain conditions to the use of force, and those who
apply it act as organs of the community. Kelsen bases this view on the historical facts that there
has never been a large community which was not based on a coercive order.
Kelsen commits himself to the view that every norm to be legal must have a sanction, though
this may be found, as for instance in constitutional law by taking it together with other norms
with which it is interconnected.14 Kelsen treats any breach of a legal norm as a delict, whether
this would normally be described in traditional terms as falling within the criminal or the civil
law. For Kelsen, to be legally obligated to a certain behaviour means that the contrary behaviour
is a delict and as such is the condition of sanction stipulated by a legal norm. Since Kelsen
regards a sanction as a essential characteristic of law, no conduct can amount to delict unless a
sanction is provided for it.
This view has been criticised15, with some warrant, on the ground that though the absence of a
sanction may make law ineffective, this is not the same as its being invalid, nor does the absence
of a sanction necessarily entail invalidity. Emphasis on sanctions also underplays the significance
of duties. There are many examples of public authorities which have obligations imposed on
them but where no sanctions as such follow from default.
14 General theory of Law and State, pp.29, 143-144.
15 By A. D. Woozley (1968) 77 Mind 461, 463-465 and Razz, The Concept of a legal
system, pp. 78 et seq.
Pure theory of lawPage 11

A further feature of Kelsens analysis of the sanctionist view of law is that legal norms are stated
in the form that, if the person does not comply with a certain prohibition, then the consequence is
that the courts ought to inflict a penalty, whether criminal or civil. It follows that for Kelsen the
content of legal norms is not primarily to impose duties on the subject to conform, but rather to
lay down what judges or officials are expected to do in the event of a delict. Accordingly, for
Kelsen the norm which lays down the sanction, involving a direction to the judge, is the primary
norm, though he recognised that there is a secondary norm which stipulates the behaviour which
the legal order endeavours to bring about by announcing the sanction. This conflicts with the
orthodox view that legal duties set standards of conduct and accordingly impose obligations on
society as a whole16.

Implications of Pure Theory of Law

Certain conclusions were drawn by Kelsen. There is no distinction between public and private
law. That is due to the fact that all law emanates from the same Grundnorm. Both Public and
Private laws are a part and parcel of a single process of concretisation. Another conclusion is
that the legal system is an ordering of human behaviour. The idea of Duty is the essence of law.
That is evident in the ought of every norm. The idea of a right is not essential. It is said to occur
if the putting into effect of the consequence of the disregard of legal rule is made dependent
upon the will of the person who has an interest in the sanction of the law being applied. The idea
of right is merely a by-product of law. The idea of individual rights is not the foundation of
criminal law today. Formerly, the machinery of law was set in motion by the injured person, but
now the same is set in motion by the State. it is true that the idea of right is still the basis of the
law of property, but it is possible that the same may be dispensed with in the future.
The idea of personality is simply a step in the process of concretisation. By a person is meant a
totality of rights and duties. Kelsen rejects the distinction between natural person and juristic
persons. Natural persons are biological entities and are outside the province of legal theory. The
state is a system of human behaviour and an order of social compulsion. Law is also a
normative ordering of human behaviour backed by force. Thus, the state and law are identical.
It is not correct to say that law is the will of the state as both the State and Law are identical. The
State as person is simply the personification of law.
According to Kelsen, legal dualism is nothing but a reflection of and substitute for theology with
which it has substantial identity. To quote Kelsen : when we have grasped, however, the unity of
state and law, when we have seen that the law, the positive law (not justice), is precisely that
compulsive order which is the State, we shall have acquired a realistic non-personificative, non16 H.Kelsen, Pure Theory of Law, 2nd ed. (Berkeley, 1967) at 1.
Pure theory of lawPage 12

anthropomorphous view, which will demonstrate clearly the impossibility of justifying the state
by the law, just as it is impossible to justify the law by the law, unless that term be now used in
its positive sense, now in the sense of right law, justice. The attempt to justify law by law is vain,
since every state is necessarily a legal state. Law, says positivism, is nothing but an order of
human compulsion. The State is neither more nor less than the law, an object of the normative,
juristic knowledge in its ideal aspect, that is, as a system of ideas, the subject matter of social
psychology or sociology in its material aspect, i.e., as a motivated or motivating physical act
(force).
As the State is nothing but a legal construction, there is no demarcation between physical and juristic
persons. As law is a system of normative relations and uses personification merely as a technical device to
constitute points of unification of legal norms, the distinction between natural and juristic persons is
irrelevant. All legal personality is artificial and deduces its validity from superior norm. According to
Kelsen, the concept of person is merely a step in the process of concretisation and nothing else.

Criticisms of pure theory of law

Several problems have been associated with the theory but not all those problems are accurately
stated arising from a substantial misunderstanding of the theory and in the confusion in the
minds of jurists as to the distinction between constitutions for example and a basic norm. One
example is the Blacks Law Dictionary, which notes that the Grundnorm may be an elaborate
system of lawmaking, such as a constitution. A constitution as will in due course become clear,
by the reckoning of Kelsen, is not a basic norm. This is not to say that there are no problems for
like every intricate theory the Pure Theory has come in for its fair dose of criticisms.
Professor Stone was a key critic of Kelsen. He argued that Kelsen distinction between ecstatic
and dynamic basic norm represents a distinction between non legal andlegal normative orders.17
Lord Lloyd observes that Kelsen's analysis of the formal structure of law as a hierarchical system
of norms and his emphasis on the dynamic character of this process are certainly illuminating
and avoid some of the perplexities of the Austinian system. A legal system is not an abstract
collection of bloodless categories but a living fabric in a constant state of movement. Kelsen
himself recognises that to call the function of a judge as political does not deprive it of its legal
quality. There is a great danger that if we take the watch to pieces and analyse each part
separately, we shall never attain the overall picture which shows how it works.
The most obvious but least mentioned conceptual problem with the Pure Theory is that for a
positivist theory that is concerned with the law as it is, it is something of an irony that for all the
posturing, the basic norm that validates all other laws and norms should be derived not from law
17 H. Kelsen, Professor Stone and the Pure theory of Law, (1964) Stanford Law
Review at 1130.
Pure theory of lawPage 13

as it is, not from positive law but from, of all places, a non-law or extra-law source. This may at
first sound like ego criticism but not to be dismissed with a wave of the hand is that it
acknowledges the important role played by non-law elements in any legal order but particularly
in the validity to be ascribed to positive law. Yet positivists recoil at the suggestion that non-law
elements may validate the law. The other conceptual or structural problem is that it appears
somewhat contradictory that on the one hand every norm below the basic norm in the hierarchy
draws from the fountain of validity of the basic norm and on the other hand that there is a
hierarchy with one norm finding validity in the norm directly above it and so on till the basic
norm is encountered. It does appear indeed that it has to be one or the other though it has to be
admitted that most, if not all the other touted validating norms, whether they be constitutions,
give the impression that they harbour this ambivalent characteristic18.

Furthermore, in modern legal systems especially those with a written constitution, the validity of
laws are not tested against the standards of the basic norm but against the basic law, which is the
constitution. The basic law offers detailed standards of validity as requirement for all laws while
the bland and vague declaration of the basic norm can hardly offer such an ascertainable and
verifiable standard. There is legitimacy to this argument though the propositions and illustration
a little further ahead, of implied positivisation of the basic norm, is bound to derogate a little
from it. There is the lack of contemplation for non-law factors in seeking to define law. In
pointedly ignoring these factors, which may be sociological and historical, it, like its other
positivist brethren, bestows unquestioning superiority to form over content and meaning. For
instance it is justifiably contended that justice by any stretch of imagination should never be
outside the frame of any jurisprudential analysis of law.
The concept of the Grundnorm has been assailed as unreal and as merely a thinly veiled
Austinian sovereign. The concept of a basic norm behind which no further legal inquiry may be
made is considered unacceptable as there are a wide range of complex reasons beyond simply
that one ought to obey the basic law such as political, social, psychological reasons which
Curzon states may be behind the conscious response of citizens to legal duties. Further than
Curzons surmise, it is added that those reasons may even be subconscious. For a second
dimension to the basic norm problem, how can one evaluate what is sufficient minimum support
for the basic norm without an adventure into the so called metaphysical or non-law facts as the
political and the sociological? Indeed while one agrees that there should be a basic norm for its
validating role, in modern constitutionalism the primacy of position of the Kelsenian basic norm

18 Mohammed Enesi Etudaiye, The Pure Theory of law and the fragile new
Democracies of the Developing World
Pure theory of lawPage 14

may not be easily rationalised. It still rankles that this non positive concept would assume that
role over and above the fundamental law or constitution.
Worse, there is the suspicion that the basic norm is not quite as non positive as Kelsen is wont to
think or cares to explain. For one reason Kelsens basic norm is positivisable by which is meant
that the constitution may indeed enact a sanction or varying sanctions for a breach or a variety of
breaches of the constitution as the case may be. This is indeed rare but quite possible and
plausible. It is suggested that one instance of positivisation of an aspect of the basic norm is the
rule regarding the impeachment of the chief executive for gross misconduct19 that would include
gross constitutional breaches and a betrayal of the oath of office subscribed to by him under the
constitution. Even so jurisprudentially, if not entirely constitutionally, when the courts pronounce
certain official acts unconstitutional, it would appear that the court is saying that the defaulting
official had disobeyed the constitution he ought to have been obeying and the sanction could be
nullifying the effect of that official act. This latter may be referred to as positivisation by
implication.

INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW

In the case of A.K. Gopalan v/s State of Madras,20 where it interpreted the expression, the
procedure established by law in Article 21of the Constitution of India as any substantive or
procedural provision of enacted law. However, in Maneka Gandhi v/s Union of India,21 the
Supreme Court of India adopted an interpretation which brought Article 21 of the Constitution of
India 22 into a concept of fairness, justness and reasonableness which is not there in the word of
that article. The meaning of the definition of fair, just and reasonable could vary from person to
person and is a reflection of ideology of an individual which consideration if brought to bear
upon the test of constitutional validity of particular statute liable to be struck down if it is not in
conformity with the mental conception of an individual who is the judge.
19 Section 140 of the Constitution.
20.1950 S.C.R. 525.
21.1978 A.I.R. 597.
229.
Article 21.Protection of life and personal liberty.-No person shall be deprived of his
liberty except according to procedure established by law

Pure theory of lawPage 15

life or person

While A.K. Gopalans case gave limitless power to the law maker, Kesavanda Bharatis case23
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.
The approach of harmonious construction adopted by supreme court in deciding the cases
involving conflicts between fundamental rights and directive principles provides best illustration
of fusion of law with justice and morality24.

In case of A.D.M Jabalpur v.s S. shukla25 popularly known a habeas corpus case where
supreme court adopted wholly a positivistic approachand held that fundamental rights remained
suspended during proclamation of emergency and therefore the court cannot go into the vires of
mala fide of the detention order and the writ of habeas corpus is not maintainable and said
article 21 remains suspended.
In the leading case of Maneka Gandhi v.s union of india26 supreme court hel that procedure
prescribed by law should not be arbitrary and oppressive. In other words court ruled that the
American concept of due process i.e. reasonableness and fairness was implicit in the
expression procedure established by law.
23

AIR 1973 SC 1461

24

Waman rao v.s union of india AIR 1981 SC 271

25 AIR 1976 sc 1207

26 AIR 1978 sc 597
Pure theory of lawPage 16

The above view was also followed in case of Unni Krishnan v.s state of M.P27 and also in case
of Consumer education & research centre v.s union of india28 and the court said that trend today
is to interpret the right relating to life and liberty embodied in article 21 in a manner so as to
fulfill the cherished goal of social justice and social change.it may be safely concluded that
positivistic approach which was a relic of colonical jurisprudence hardly has place in the modern
inidan setting.

CONCLUSION
Hans Kelsens Pure Theory is more valid today than it has ever been. H. L. A. Hart described
Kelsen as the most stimulating writer on analytical jurisprudence of our day. Kelsens theory
represents a development in two directions. On the one hand, it marks the most refined
development to date of analytical positivism; and on the other, it marks a reaction against
different approaches that characterized the opening of the twentieth century. Kelsens goal in
developing the Pure theory was to make possible a value-free jurisprudence or a science of
law. This jurisprudence would focus on nothing other than cognition of the law, that is how
exactly law is perceived and recognised.
27 AIR 1995 SC 922
28 AIR 1993 SC 2178
Pure theory of lawPage 17

One must have in mind the fact that principal value of the pure theory of law, first of all, is in
that it presents the subject of its study, that is, positive law such as it is, without any unfamiliar
additions. It is not only that the methodological doctrine of great heuristic possibilities is in
question, but system learning as well that within its investigations ends to embrace the universal
legal order interwoven in the composition of which are certain ideas of natural law all contained
in many international law documents of general or regional character.
J.W Harris remarks that effectiveness conditions validity. How do we measure its effectiveness?
By two criteria first, is the norm, obeyed; secondly, when disobedience occurs, is the section
applied?
We should not look at this as a criticism of the theory but rather as a further explanation of the
Pure theory; in that according to the theory norms are always in place so if a particular norm is
held to be ineffective there is always another norm to deal with that particular matter which gets
its validity from the Grundnorm. Much of the criticism of Kelsen theory lies with the issue of the
Grundnorm . Dias identifies several aspects of the Grundnorm; in what sense is the Grundnorm a
norm? It does not conform to Kelsens own formulation of a norm; if something is to occur they
ought to happen it only empowers and does not impose sanctions. It should be remembered that
Kelsen argued that this basic norm is valid because it is presupposed to be valid because
without this pre-supposition, no norm-creating act. If one is to believe this aspect of his theory
then you cannot argue that it is not a norm, and Dias fails to recognise this. Stanley Paulson has
argued that Kelsens neo-Kantian argument fails as a methodology grounding in the legal sphere
because Kelsen does not demonstrate that thisis the only way to understand the validity of law. It
is possible for example that in a shared value-system, some notions of justice or moralityunderlies validity, in addition to, or instead of reasoning by legal links.
However this theory has stood the test of time unlike the Natural law theory, which over the
centuries has slowly lost its followers to more practical theories and it is now in its dormant
stage. It would appear that because Kelsens Pure theory is logical and related to reality it has
retained its validity, Just as the highly practical theory of Max Webers (Weberian
methodology).There is surely sense in which the Pure theory does offer something of value for
those working in the field of what we now generally call jurisprudence, while its orientation
appears to be away from the normative concerns of contemporary jurisprudence. The Pure theory
is expansionary, and one of most significant things about theory is that each and every law or
norm is a consequence of a prior political decision.
In the last, I would like to put forth a modern legal example where Pure theory of Law is
applicable. The current political turmoil and legal conflict between the judiciary acts the
government of Pakistan, has shown a retreat to the decision in Jilani ,29 in that the former Chief
29 Jilani v. Government of Punjab Pak LD [1972] SC 139. This had overturned the
earlier decision in Statev. Dosso [958] 2 Pakistan SCR 180.
Pure theory of lawPage 18

Justice Chouwdary ruled against the former President General Musharrafs. This decision had
elements of the Pure theory of laws Grundnorm , in that he ruled against the government basing
this decision as a norm which arose from the Grundnorm constitution.As it was necessary for the
rule of law to survive and for a countries survival in the international law realm (In this case the
British Common wealth which requires certain international requirements to be fulfilled in order
for a country to become part of the Common wealth or risk being removed from it, if it is already
part of it).This also highlights Kelsens belief that international law has supremacy over
municipal law. Currently Pakistan has been suspended from the commonwealth, because of the
emergency rule placed by Musharraf in 2007 and his removal of the Supreme Court judges in
2007.

Bibliography

V.D. Mahajan, Jurisprudence and Legal Theory, 5th Ed. 2012, Eastern Book Company.

Edgar Bodenheimer, Jurisprudence The Philosophy and Method of the Law., 1962
Harvard University Press; London: Oxford University Press.

http://www.academia.edu/Documents/in/Pure_Theory_of_Law

Pure theory of lawPage 19

M. D. A. Freeman, LLOYDS introduction to Jurisprudence, 8th Edition, 2008, Sweet &

Maxwell

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