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Henry Kelsen (1881 - 1973) was a Professor of Law at the University of Vienna.
He propounded the Theory of Law in his essay 'The Pure Theory of Law' and contributed it to the Law Quarterly
Review in 1934.
This theory is an improvement of Austin's Positivism Theory
This theory was further elaborated in 1945 in his 'General Theory of Law and State'.
Contents
1 Postulates of Kelsen
1.1 Law is a norm of action
1.2 'State' is a synonym for the legal order which is nothing but a pyramid of norms
1.3 'Purity' of Kelsen' Theory
2 Improvements upon Austin's Positivism Theory
3 Criticism
4 Related Topics
Postulates of Kelsen
Law is a norm of action
'State' is a synonym for the legal order which is nothing but a pyramid of norms
The basic problem in Kelson's Pure Theory of Law is the derivation of norms. The question of the criterion of the testing of
lawness of these norms exists.
Kelsen answers this by his hypothesis of 'grundnorm' or fundamental norm or basic norm or the base. The Grundnorm is a
norm which is not capable of deducation from any principles of the science of law. Hence, the grundnorm is the fundamental
norm and all other norms are derived from grundnorms in a hierarchical structure.
Kelsen's Pure Theory of Law attempts to be a consistent theory of law applicable to any legal system. He calls it pure because
it is universalist and not confined to any particular legal system.
Criticism
Lauterpacht's criticism - Primacy of international law over state law is a back door entry permitted by Kelsen's theory to
natural law.
Allen's criticism - Sources of law like custom, statute and precedent are co-ordinate and do not admit of arrangement in
a hierarchical pattern adopted by Kelsen.
Friedmann's criticism - Pure science of law by Kelsen is inadequate from point of view of legal theory. The sphere of
law is now intersecting spheres traditionally allotted to other social sciences like Economics, Psychology and
Sociology.
Related Topics
Normative Jurisprudence
Locus stadi
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Category: Jurisprudence