KELSON

So who is this Hans Kelson guy? Well, Kelson is an Austrian jurist who`s
most prominent work is the Pure theory of law.
Kelson`s theory is pure because it distinguishes jurisprudence from other
disciplines like ethics and politics. Kelson believes that this is important
because often times the study of law all mixed up with other things and
therefore provides an inadequate and incorrect picture.
Kelson defines law as a set of orders of human behaviour and the second
characteristic of law is that it is coercive in nature. He writes that an
order is a system of norms whose unity is constituted by the fact that
they all have the same reason for their validity; and the reason for their
validity is a basic norm.
All norms derive their validity form this basic norm. A norm will only be
considered a part of the legal order if its validity is based on the basic
norm.
Pure theory only concerns itself with positive law because Kelson was a
staunch positivist. He argues that law is order by which human conduct is
regulated in a specific way. This regulation is accomplished through the
use of norms.
There are two ways in which norms can be created:
1. Conscious acts of certain organs aiming at creating law i.e.
legislation.
2. Customs i.e. common law for instance.
Norms may be of two types; individual in character or general. According
to Kelson Jurisprudence sees laws as a system of general and individual
norms.
There are two very important concepts that revolve around norms:
1. Validity
2. Efficacy
Validity If a norm exists it is valid. A norm is valid for an individual
whose conduct it seeks to regulate.

Efficacy If a valid norm is followed/observed/respected it is said to be

efficacious.
Although, validity and efficacy are two distinct concepts and a norm
becomes valid before it becomes effective, but they are intricately
interlinked. A norm may only be valid if it is by and large efficacious. That
is to say, that if a norm loses its by and large efficacy it will be assumed
to be an invalid norm. Jurisprudence regards law as a system of valid legal
norms therefore, the same rule applies in the larger scope to a legal order,
if a legal order loses its by and large efficacy it will no longer be a valid
legal order.
Like the popular concept of law, norms may also be temporally and
spatially bound. Furthermore, norms normally seek to regulate future
behaviour however, they can be retrospective as well.
Kelson believes that natural sciences use the expression is in their
proposition whereas jurisprudence describes its object in ought
propositions.
Kelson differentiates between sociological jurisprudence and normative
theory of law. He argues that sociological jurisprudence deals with how
men should behave under certain circumstances whereas normative
theory of law deals with how they actually do behave. The pure theory of
law does not invalidate the sociological jurisprudence however it declines
to use it as a component of the science of law.
Kelson now turns to the concept of his norm. In doing so he uses the idea
of Austin and criticizes it. Kelson writes that Austin described command as
the expression of the will of an individual to the conduct of another
individual. Kelson differentiates his theory of a norm by stating that norm
is a rule stating that an individual ought to behave in a certain way, but
not asserting that such behaviour is the will of anyone. Basically, the
difference between Kelson and Austin here is that of a will of an individual.
Kelson believes that a will is not necessary part of a law, because if it is,
then when the will subsides the command shall no longer be
effective/valid.
Kelson is a staunch believer in the coercive element of law. He argues that
obedience to the law is achieved through the fear of sanctions. Here
another concept is introduced, and that is the concept of the delict.
Delict - A delict is an action that is prohibited by the law. An action is a
delict if there is a sanction in place to discourage people from committing
that action.

Kelson mentions that although modern legal systems sometimes provide

for rewards in the form of titles and decorations. However this is not an
essential feature of a legal order the way coercive action is.
Kelson also talks about how sometimes sanctions may be directed towards
a individuals who are not delinquent per se. A legal groups
attribution/affiliation to the delinquent might be the reason for collective
sanctions. For instance, sanction of international law.
In his writings Kelson also deals with a critique of his definition of law or a
legal order. So far, we have seen that Kelson has defined law as an order
of human behaviour which uses coercion to ensure its application/efficacy.
However, by this definition, critics argue that there is no difference
between a robber demanding a bank teller for money and a tax official
asking an individual for his tax dues. Kelson, responds by saying that the
difference between the two lies in the objective meaning of the command.
The command of the tax collector is attributed to a valid legal order
whereas the threat of the robber is not attributed to any valid legal order
therefore; the former is interpreted as a command while the latter is not.
Now Kelson answers another question often raised by the critics at this
point. Why do we interpret one as a command and not the other?
Because, the former derives validity through a series of valid norms that
ends at the basic norm, while the latter does not.
Kelson writes that the isolated acts of one individual cannot be interpreted
as legal act because law is not a single norm, but a system of norms and a
single norm may only be recognized as a part of such a system.
Now Kelson turn to another very popular critique, what if the gangs of
robbers are organized in such a manner that they form a valid legal
system in which norms derive validity from higher norms? Kelson tackles
this by stating that any basic norm requires lasting effectiveness. If the
band of robbers does not have a lasting effectiveness, in that case their
legal order in illegal and invalid. However, if the validity of the legal order
imposed by these robbers is restricted spatially and within that space it is
effective in such a way that the validity of any other legal order is
excluded then it indeed may be regarded as a valid legal order.
Validity of legal orders - A legal order is not considered valid based on its
content. It is validity is contingent upon the fact that it is created in a
certain way i.e. deduced from a higher norm. Therefore, any kind of
content may be law as long as it is deduced from a higher norm. It the
validity of a legal norm is brought into question it can only be settled by
tracing it back to the basic norm of the legal order.

Basic Norm The basic norm is presupposed. It may be just or unjust;

these considerations are irrelevant to the presupposition. The basic norm
furnishes the validity of the order created in accordance to it. A basic
norm is effective if the norms created in conformity with it are by and
large obeyed. As soon as the constitution loses its efficacy the legal norms
that derive their validity from it are no longer effective and valid, unless a
basic norm takes over and grants validity to those norms.
Kelson includes the concept of delegated legislation in his pure theory of
law. He states that the creation of a lower norm can be determined by the
higher norm by determining the organ and the procedure through which it
is to be created. Furthermore, the higher norm can also delineate the
content of the lower norm. However, Kelson writes, that determining the
organ is the least that is to be done by a higher norm in case of delegated
legislation.
Kelson also sheds some light on the concept of interpretation. He believes
that interpretation is necessary to the process of application. Furthermore,
individuals who are to obey the legal order must interpret law in order to
avoid sanctions and make informed legal choices. However, the
interpretation of an individual does not bind the organ that has to apply
the law.
The last reading basically, reiterates the important aspects of Kelson`s
theory, highlights its shortcomings and compares Kelson`s theory to that
of Austin`s.
The foremost difference between Kelson and Austin`s conception of law is
the idea of sovereign vs. basic norm. Austin uses sovereign as the body
from which the validity of all law emanates whereas in Kelson`s theory
sovereign is replaced by the basic norm. Kelson`s theory has an edge over
Austin`s work in this regard that as per Austin whenever the sovereign
was changed, it had lasting impact on the existence of the legal system,
this has been prevented in the pure theory by the introduction of a basic
norm.
The reading also criticizes Kelson on his abstract conception of ideas. For
instance, Kelson states that there is a minimum degree of efficacy
required for a norm to remain valid. However, nowhere does Kelson
specify what this minimum degree of efficacy is.