Jurisprudence ASSIGNMENT

TOPIC: - KELSEN’S PURE THEORY OF LAW

SUBMITTED BY :- SUBMITTED TO :-

NAME : - AVINASH KUMAR MISHRA Mr. HAKIM YASIR ABBAS

Enrolment No. : - 14-0292 (FACULTY OF LAW)
COURSE : - B.A.LL.B (HONS) (2ND YEAR) JAMIA MILLIA ISLAMIA
SEMESTER : - 4TH
SECTION :- A

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone

who supported me throughout the course of this JURISPRUDENCE
ASSIGNMENT. I am thankful for their aspiring guidance, invaluably
constructive criticism and friendly advice during the project work. I am
sincerely grateful to them for sharing their truthful and illuminating views on
a number of issues related to the project.

I express my warm thanks to my Jurisprudence sir Mr. HAKIM YASIR

ABBAS for his lecture on the topic in the class.

I also take this opportunity to thank the staff of JAMIA MILIA ISLAMIA
who supported me very much in making of this project specially the
LIBRARY members who guided me in searching and providing the right
book.

Lastly I want to thank my friends and family who are with me and
supported me whenever I needed to complete this project, and without
whose help this assignment might not be so fruitful.

Thank you,

AVINASH KUMAR MISHRA

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TABLE OF CONTENTS: -

1. INTRODUCTION
2. HANS KELSEN’S INTRODUCTION TO PURE THEORY OF
LAW

3. MAIN FEATURES OF ‘PURE THEORY OF LAW’

4. Grundnorm
5. LAW AND MORALS IN PURE THEORY OF LAW

6. AUSTANIAN’S THEORY OF LAW AND KELSEN’S PURE

THEORY OF LAW
7. KELSEN’S HIERARCHY OF LEGAL NORMS

8. LAW AS A SYSTEM OF SANCTION-PRESCRIBING NORMS

9. APPLICATION OF KELSEN THEORY IN THE INDIAN
SCENARIO

10. INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT

OF LAW
11. CRITICISM
12. CONCLUSION

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INTRODUCTION1: -

Hans Kelsen (1881-1973) Austrian jurist and philosopher of law. Kelsen is

known for the most rigorous development of a ‘positivist’ theory of law, i.e. one
that rigorously excludes from its analysis any ethical, political, or historical
considerations, and finds the essence of the legal order in the laid-down law.
Hans Kelsen began thinking about the nature of law during the course of
examining the Austrian constitution before the First World War. The first full
formulation of his theory appeared in 1918. The first presentation of the theory in
Englilsh was in 19342 after Kelson gone to United states.

A system of law is based on Grundnorm or a Ground rule, from which flows the
validity of other statements of law in the system. The grund norm might be that
some particular dictates or propositions, such as those of the sovereign, are to be
obeyed.

The theory of Hans Kelsen represents development in two directions. On one

hand, it marks the most defined development to date of analytical positivism; on
the other hand, it marks a reaction against the welter i.e. confusion of different
approaches that charecterised the opening of twentieth century. Kelsen started
his theory from certain premises. According to him ,a theory of law must deal
with law as it actually laid down and not as it ought to be.

A theory of law must be distinguished from the law itself. Law consists of a mass
of heterogeneous rules and the function of a theory of law is to organize them
into a single, ordersd pattern. Kelsen evolved his theory out of a profound study
of a legal material actually available.

According to Kelsen3, a theory of law should be uniform. It should be applicable to

all times and in all places. Kelsen advocated general Jurisprudence. He arrived at

1
Mridhushi Swarup; http://www.manupatra.com(kelsen’s theory of grund norm)
2
(1934) 50 LQR 474, (1935) 51 LQR 517
3
V.D. Mahajan, Jurisprudence and legal theory ,Pg.471(1996 Re-prient), Eastern, lucknow

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generalization which holds good over a very wide area. Kelsen writes that a
theory of law must be free from ethics, politics, sociology, history, etc. In other
words it must be pure.

Kelsen’s pure theory of law forms a system with a number of component parts,
each linked like links in a chain, the chain forming a circle.

HANS KELSEN’S INTRODUCTION TO PURE THEORY OF LAW4: -

To Kelsen pure theory of law is knowledge of what the law is and not of
what the law ought to be. Law is normative and not a natural science. To him,
knowledge of a law is knowledge of “norms”. A norm is proposition in a
hypothetical form: “If X happens, then Y should happen”. It includes all norms
created in the process of applying some general norms to a specific actions.
According to Kelsen, a dynamic system is one in which fresh norms are constantly
being created on the authority of an original, or basic norms which is named by
him as GRUNDNORM.

Descriptive and Normative Statements5

We begin the idea from Kant’s philosophy that reality can only be understood by
humans through different formal categories of statements. Here we are concerned
with two categories in particular, which give two different ways of talking about
reality.

The first category is ‘Descriptive Statements’ (descriptions), which deal

with existence, or Kelsen’s words: “A statement that something is.” An example is
‘the door is closed.’
The second category is ‘Normative Statements’ (norms), which deal with preference,
“A statement that something ought to be.” An example is ‘the door should be closed.’

4
V.D. Mahajan, Jurisprudence and legal theory ,Pg.473(1996 Re-prient), Eastern, lucknow
5
https://hughmccarthylawscienceasc.wordpress.com

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Kelsen’s description of these categories highlights the words ‘is’ and ‘ought.’ 6 To
decide whether a statement is descriptive or normative, you need to look at its
meaning. For example:
 A statement does not require the word ‘is’ to be a description: the sentences
‘the man runs away’ or ‘the apple will fall’ are descriptions.
 Not all statements of the form ‘X is Y’ are in fact descriptions. For example, the
statement ‘Murder is bad’ is in fact the norm ‘Murder should not be done.’
The two classes of statements are logically separate. There are no correct statements
of the form ‘X is, therefore Y should be’: one cannot derive an ‘ought’ from an ‘is’.
The classes also cannot contradict, i.e. the statement ‘the door should be closed’ does
not contradict with ‘the door is open’ or even ‘the door does not exist.’
The two classes are related in asymmetrical ways. A descriptive statement can have a
normative statement as its ‘meaning’. For example, ‘a robber says ‘Stop!’’ has the
normative meaning ‘You should stop.’ We cannot conclude that the normative
meaning isvalid, but it is still attached to the descriptive statement. For this reason,
we consider norms to be subordinate to descriptions.
It is important to keep in mind the distinction between norms and descriptions. The
norm ‘Theft should be punished’ is different from ‘Theft will be punished,’ or ‘The
policeman thinks theft should be punished,’ or ‘The Criminal Code says theft should
be punished,’ all of which are descriptions.

MAIN FEATURES OF ‘PURE THEORY OF LAW’7

The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna
School” because Kelson is the productor of Vienna University. This theory
resembles with Austin’s command theory because in Kelson’s theory there must
be sanction behind law. Austin gave it the name of command theory and Kelson
gave it the name of grundnorm theory. Kelson is affected by local conditions,
natural condition and international condition. After studying all these conditions

6
J.G.Ridall, Jurisprudence,pg.126(2nd edition)OUP,UK
7
Dias, Jurisprudence,pg.364-366 ( Indian re-print), Aditya Books,New Delhi.

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he gave this theory of Law, which is known as pure theory of law and grundnorm
theory .

Concept of pure theory of Law:- At the time of Kelson there are Ist world war
which destricted the property of human beings at international level. So he gave
power to the international law and avoiding the destructions of the world.
Secondly during that time many countries adopted written constitution. So Kelson
also get influenced from these written constitutions and gave his own theory
which is based on grundnorms.

Grundnorm

Whether norms are ordered through logical or legal validity, Kelsen believes, the
order must have some ‘basis (Grund)’. If the separation of ‘is’ and ‘ought’ is to be
maintained, that basis or ground can only be a norm, a ‘basic norm (Grundnorm)’.
He compared the grundnorm with written constitution. According to him written
constitution is the highest authority in the country which is known as
grundnorms. In England the Parliament is a grundnorm, in USA written
constitution is grundnorms and in India too written Constitution is grundnorm.
State is not above the grundnorm. Sovereignty also liven in grundnorm. According
to Kelson law is a motive nor science, it means science of norms. In laws only
those rules are taken which are related with legal aspects. Any others like moral
rules, religious rules, ethical rules do not come under the concepts of grandnorm.
Here Kelson is equal to Austin. When he excludes morals relation or ethics from
the field of law8.

System of Normative Rules:-

System of normative rules was Hierarchy. In hierarchy system there is one highest
authority and all other are lower authorities. This highest authority was
grundnorm which was in the form of written constitution and other authorities
are below the constitution. The source of power in a state for all bodies is written
constitution.

8
J.G.Ridall, Jurisprudence,pg.128(2nd edition)OUP,UK

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International Law:- Kelson says that norms have a force behind it. This force lies in
the grandnorm. If this legal norm is not obeyed then one person will be punished
for it. He also says that at this time international law is immature. It is in primitive
stage. It is developing.

Nature of Grundnorm:- According to Kelson each country has the formation of

grundnorm according to local conditions. The duty of jurists is to interpret the
grundnorm in their own language. They are not concerned with the goodness or
badness of the grandnorm. They are not concerned with the origin of the
grandnorm. In this way the grundnorm is the main source of all the laws in the
country.

Elements of Pure Theory:- Kelson gave his view under this theory about State,
sovereignty, public and private law, public and private rights, international law
private and juristic law.

Feature of Kelson’s theory9:-

1. Grundnorm as a source of law:- Grundnorm is the source of all laws.

Grundnorm is in the form of written constitution. Any such body, which contains
rules, or any such legal system in a country.

2. No difference between law and state:- Kelson says that there is no difference
between law and State because they get power from the same grundnorm. Law
comes from the grundnorm and the state also comes from the grundnorm.

3. Sovereign is not a separate body:- Austin says sovereign is a politically superior

person which keeps controls over the politically inferior persons. But Kelson says
that the power of sovereign lies in the people. So the Sovereign is not separate
and superior from the people of the country.

9
http://kuklawnotes.blogspot.in/p/jurisprudence-1-what-is-administration.html

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4. No difference between public law and private law:- The public law is related
with the state and the private law is related with the individuals as Kelson says
that there is no difference between public law and private law. The law which
creates a contract between individuals is called private law.

5. Supremacy of internationally laws:- The main prupose of Kelson was to

decrease the tension at world level because there was Ist world war which
destroyed millions of persons and property. He also said that the internaiton law
is in primitive stage or immature stage. It means it is in developing stage. One day
will come when international law will get equal to that of municipal law. So this is
also enforceable.

LAW AND MORALS IN PURE THEORY OF LAW10: -

Kelsen's strict separation of law and morals was an integral part of his presentation
of the pure theory of law. The application of the law, in order to be protected from
moral influence or political influence, needed to be safeguarded by its separation
from the sphere of conventional moral influence or political influence. Kelsen did
not deny that moral discussion was still possible and even to be encouraged in the
sociological domain of intersubjective activity. However, the static operation of the
pure theory of law was not to be subject to such influences as presented by Kelsen.

10
https://en.wikipedia.org/wiki/Pure_Theory_of_Law

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AUSTANIAN’S THEORY OF LAW AND KELSEN’S PURE THEORY OF LAW:

The relationship between Hans Kelsen and John Austin may, at first glance,
appear to be of limited interest. Kelsen’s Pure Theory of Law did not
develop under the influence of Austin’s work , and there is no evidence of a
serious interest in Austinian the German works Kelsen published before his
emigration to the US. Kelsen only began to discuss Austin’s views in his later
English works.

He had evidently come to realize that Austin’s project was in some respects
comparable to his own, and that the attempt to introduce the Pure Theory of Law to
an English-speaking audience would benefit from an analysis of the relation
between the Pure Theory and Austinian legal theory.

Kelsen’s rather critical discussion of Austin, I would like to suggest, casts

aninteresting light on the development of modern legal positivism. H.L.A. Hart’s
The Concept of Law is in many respects a response to Kelsen’s attack on Austin.
This isobscured by a tendency on Hart’s part to assimilate key elements of
Kelsen’s legal theory to Austin’s. 11 In fact, Kelsen anticipates most of Hart’s
criticisms of Austin. Ittherefore seems reasonable to assume that Hart was
influenced by Kelsen’s discussion of Austin. But despite the fact that Hart endorses
most of Kelsen’s criticisms of Austin, his overall conception of positivist legal
theory is closer to Austin’s than to Kelsen’s.Hart’s theory of law is an attempt to
defend the view that the existence of law is a kind of social fact in light of the
vulnerabilities of the Austinian conception of law exposed by Kelsen.

Kelsen’s encounter with Austin is nevertheless an important episode in the

development of positivism. Hart’s attack on Austin in The Concept of Law Adopts
Kelsen’s criticisms of Austin’s command theory. At the same time, Hart
manages to integrate Kelsen’s criticisms of Austin into a theory that, like Austin’s,
treats the existence of a legal system as a social fact. The result of this Hartian
reconstitution of the Austinian approach is a legal theory more strongly separated

11
H.L.A. Hart,The Concept of Law, 2nd ed., ed. by Penelope A. Bulloch & Joseph Raz (Oxford:Oxford University
Press, 1994) at 35-42.

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from normative political-theoretical concerns than Kelsen’s Pure Theory. Those
who aim to develop a purely descriptive account of the nature of law should
welcome this result.

KELSEN’S HIERARCHY OF LEGAL NORMS12

Hierarchical law as a model for understanding the structural description of
the process of understanding and applying the law was central for Kelsen and he
adopted the model directly from his colleague Adolf Merkl at the University of
Vienna. The main purposes of the hierarchical description of the law would be
three-fold for Kelsen. First, it was essential to understanding his celebrated static
theory of law. 13 Second, it was a measure of relative centralization or
decentralization. Third, a fully centralized system of law would also correspond to
a unique Grundnorm or Basic norm which would not be inferior to any other norm
in the hierarchy due to its placement at the utmost foundation of the hierarchy.

This theory consist of three main elements:-

1. Collections of norms.

2. Presumed relationship between norms.

3. Form of hierarchy.

12
https://en.wikipedia.org/wiki/Hans_Kelsen
13
Kelsen (1960), Chapter 4

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LAW AS A SYSTEM OF SANCTION-PRESCRIBING NORMS: -

Kelsen’s definition of a legal system, which I shall call ‘Kelsenian law’ is a

system of norms that prescribe sanctions. A sanction is a punishment or reward that
follows from a condition; an example of a sanction-prescribing norm is ‘A thief
should be imprisoned14.’

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. Not all
conditions for sanctions are delicts: for example, the sanction of forced quarantine
may be imposed after illness. It follows that delicts are never directly prohibited, but
rather are made the conditions of sanctions – there is no law that says “Do not steal,”
only a law that says “Thieves should be imprisoned.”

Be aware of the distinction between ‘Thieves should be imprisoned’ and

‘Thieves will be imprisoned’ – the latter is a not a norm but a description, and
therefore is not Kelsenian law. It is instead a description of what actually happens. It
could be false, and the law would still be a law (e.g. if the thief was not caught).
A legal system includes general norms such as “Thieves should be imprisoned”, but
also specific norms such as ‘This man should be imprisoned.’ A norm with specific
application is still a Kelsenian law.

Dependent Norms
An independent legal norm is a norm that prescribes a sanction, e.g. ‘This man
should be imprisoned.’ A dependent legal norm is a legal norm that does not itself
prescribe a sanction, but is connected to a legal norm that does. For example, the
norm ‘This judge is authorised to hear cases’ is valid only insofar as that judge can
prescribe/dismiss sanctions, or make decisions that ultimately lead to sanctions

If a norm is not connected to a sanction-prescribing norm, then it is not a Kelsenian

law. Such a norm is instead a moral or social norm posited by a legal organ who is
not exercising their legal capacity.

14 14
https://www.academia.edu

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All information about dependent norms can be described as a “If X then Y should be”
statement (a rule of law), where X is all the conditions stipulated by the dependent
norms, and Y is a sanction.
 A licence to drive can be described as “If (1) a person drives, and (2) they have
no licence, then they should be punished.”
 A law that authorises a judge to preside over a theft case: “If (1) a person is
found to have stolen by a judge, and (2) that judge was authorised to preside
over the case, then that person should be punished.”
 A contract to pay $100 in return for a service: “If (1) a person does not pay
$100, and (2) that person was required to do so by a legal contract, then that
person should be punished.”
 The Constitution, as applied to theft: “If (1) a person has stolen, and (2) all
laws relating to this case were created in accordance with the Constitution,
then that person should be punished.”

Validity

A taxman, backed up by the State, and a robber backed up by a gun, both demand
your money. Both men’s actions have the normative meaning “Give this man your
money,” and both of these norms are backed by sanctions. We want a definition of
law such that the former is law, and the latter is not.

We can do this by asking which of these two norms is valid. The norm “Give the
taxman your money” can be derived from a series of higher norms:
Obey the constitution
↓
Obey laws passed by the legislature
↓
Obey tax law
↓
Obey the tax office and its decisions
↓
Obey the taxman’s authority
↓
Give the taxman your money

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If a norm is valid, any norm derived from that norm by imputation will also be valid.
The taxman’s norm will be valid under this system, while the robber’s will not. A
legal system is therefore a system of coercive, valid norms.

Source of Validity – The Grundnorm

Under Kelsen’s theory, no norm is objectively valid. The ‘source’ of validity

therefore must be a norm that is assumed to be valid. Kelsen formalises this
assumption through a new object: the basic norm or Grundnorm. The Grundnorm is
not a legal norm, it is instead a norm that is assumed to be valid by the legal scientist
examining the legal system. A legal norm is then any norm derived from this
Grundnorm.
A Grundnorm refers to a specific constitution or other source of law. For example,
the Australian legal system’s Grundnorm is “One ought to obey the Australian
Constitution.”
An analogy can be made with science: if we want to say any valid statements about
reality, we need to start with something we assume to be valid. Such assumed
statements could “experience corresponds to reality” or “things will continue to
behave the same way as they have in the past.” Such an assumption is the ‘source’ of
the validity of a scientific system.

Effectiveness15
In order to qualify as a valid legal system, a norm must also be ‘by and large
effective’, i.e. the norm must be obeyed most of the time. This means that a legal
theorist’s choice of Grundnorm is not arbitrary – we have to choose
the Grundnorm that gives validity to theactually effective legal system. We can’t
assume that the Grundnorm is ‘Obey Hugh’ because society does not follow this.
This is especially important during a revolution – if the old legal order ceases to be
effective, either because of a hostile takeover, or just because people stop following
the law, then there will be a new legal system and a new Grundnorm.

15
S.N.Dhyani,Fundamentals of jurisprudence,pg.133,(CLA,Allahabad,1985)

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Legal Decisions
A law is valid if it was derived from a higher norm. But how does a legal
scientist determine whether this derivation was legitimate?

Under Kelsen’s system, there is no objectively right or wrong way to derive a norm
from a higher norm, just as there are no objectively valid norms in the first place. All
we care about is a legal norm’s validity, and here, the source of validity is whether
the person who derived the legal norm was authorised to do so.
Therefore, every derivation made by an authorised legal organ is automatically valid.
A legal scientist can describe the possible interpretations of a particular law, or the
relationships between laws, but they cannot decide which derivation is ‘correct’ –
that decision is entirely up to the judge.
It seems to me that there is some wiggle room here, to prevent extreme cases. For
example, what if a corrupt judge claims to derive the norm ‘give me money’ from tax
law? In this case, the legal theorist could argue that the decision is so unreasonable
that it is not derived from the higher norm at all. The corrupt judge’s decision is
either invalid and no different from a robbery, or derived from a more general norm
of the form ‘This legal organ may posit new norms.’

If a case is successfully appealed, it doesn’t mean that the decision was wrong from
the start – it just means that a higher legal organ chose to overturn the decision. For
example, if a judge finds a person guilty of murder who was in fact innocent, the
judge’s decision is still valid because the judge was authorised to make that decision.
Similarly, if the legislature passes an unconstitutional statute, the statute is still valid
unless and until it is repealed.

This means that if a decision cannot be appealed, the organ which makes that
decision has ultimate legal authority. They can flout the constitution or any other law
they choose, and their decision will still be valid. The only considerations that
prevent such an organ from disrupting the law this way are non-legal ones, such as
the organ’s morality or the organ’s fear of losing office.

This also means that a legal organ’s thinking process, reasoning and arguments
behind a decision are not part of legal science. Kelsen admits that these factors are
legal in nature, but they instead belong to a different discipline called ‘legal politics’.

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APPLICATION OF KELSEN THEORY IN THE INDIAN
SCENARIO 16

The Indian people has their own philosophy. But if we look minutely, we can
found that the Kelsen theory is in the Indian society as for example “Dharma.”17

‘Dharma’ consist of rule of daily routine. It gives a set of behavior to control the
human society. We can say that Dharma is the Grund norm and other norm
generates from the Dharma.
Application of Kelsen’s Pure Theory to the ancient Indian legal system and
to British Indian legal system gives an insights into the fundamental difference
between the two legal systems. The norm posited in the latter case is that we
ought to obey the viceroy or governor-general, who was not responsive to Indian
moral or cultural norm and ethos or to the public opinion. The position of such a
norm make the entire system Austinian where under even the sovereign’s caprice
can become the law.18

INDIAN CASE ANALYSIS ON KELSONIAN CONCEPT OF LAW

In the case of A.K. Gopalan v/s State of Madras,19 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, 20 the Supreme Court of India adopted an
interpretation which brought Article 21 of the Constitution of India 21 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

16
https://papers.ssrn.com
17
Means Righteousness (Dharma) is that which sustains the people or that which is adopted by meritorious souls.
18
https://papers.ssrn.com
19
1950 S.C.R. 525.
20
1978 A.I.R. 597.
21
Article 21.Protection of life and personal liberty.-No person shall be deprived of his
life or person liberty except according to procedure established by law

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statute liable to be struck down if it is not in conformity with the mental conception
of an individual who is the judge.

While A.K. Gopalan’s case gave limitless power to the law maker,
Kesavananda Bharati’s case22 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.
Kelsen’s 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 Austin’s Sovereign. Kelsen’s
Grund Norm is alterable by changing the presupposition.

CRITICISM:- (FLAWS OF THE THEORY)

Criticism of Kelson’s theory 23 :- In-spit of having good concept of pure

theory given by Kelson some of the criticism faced by him, which are as under:

a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It

cannot be applied where there is no written constitution. The base of grandnorm in
the form of positive norms or the rules based only on legal order is not clear. The
rules, which are not linked with morals ethics. Customs and religion are not the
norms. But we can not ignore the role of these norms in the development of law.

b. Interantional Law is a weak law:- Kelson advocated the supremacy of

international law. But even upto now we see that is no force behind international
law.

c. No difference between state and law:- this point is also criticised by various
writers. Law as a separate thing from the State. State is body is law in, which law
is a rule that regulates the state.

22
(1973) 4 SCC 225
23
https://www.academia.edu

17
d. Difference between public law and private law:- Kelson says that there is no
different between public law and private law. Which is also not right in the modern
days.

e. Customs and Precedents ignored:- He also customs as a source of law while we

see that customs are the source of all laws.

HART’S CRITICISM OF KELSEN24

Hart draws a basic distinction between supposition and fact. Kelsen presupposes a
legal norm or his “Grundnorm” must be presupposed prior to establishing whether
a given law is valid or not. For Hart this issue boils down to whether officials
interpret primary laws factually by the creation of “secondary rules of
recognition.” Rules of recognition are not presupposed, but in fact validated by
their existence per se.

Secondly, unlike Kelsen’s Grundnorm, which prescribe the ultimate test of

legal validity, Hart’s rule of recognition can be applied to all system anywhere.
Kelsen’s hierarchy of norms, is therefore more of a supposition that a theory for
legal validity.

24
http://www.legaltutors.com/jurisprudence

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CONCLUSION : -
Kelson attempted to break away with the traditional natural law theory
on one hand and legal positivism on the other. He asserted that legal knowledge is
free from foreign elements, such as ethics, psychology, sociology, etc. His
normative theory separates law from morality on one end and law and ‘fact’ on the
other. He refused to separate law from the State and held that law is the ‘will of the
State’.

Kelson’s contribution has been of great value and has had a notable effect on
current jurisprudence. His ‘Normative’ view has led him to re-examine with a most
stimulating originality, many of the traditional doctrines of jurisprudence. His
views regarding the nature of State and of legal personality have received wider
support. His work is also valuable in its emphasis that in executing the norms of
law the judge has much discretion, he may consciously choose between alternative
interpretations which the norm permits. He has made a more illuminating analysis
of the legal process than any writer of that century. Even though none of his
special doctrines have found universal acceptance, some have moved into common
juristic thought. His half-truths and manifest errors have also influenced in the
development of jurisprudential thought25.

25
S.P. Dwidedi, Jurisprudence And Legal Theory, (Central Law Publications, 4th Ed.2003) at 35

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BIBLILOGRAPHY
BOOKS REFERRED
1. S.N.Dhyani,Fundamentals of jurisprudence,(CLA,Allahabad,1985)

2. V.D. Mahajan, Jurisprudence and legal theory ,(1996 Re-prient), Eastern,

lucknow

3. J.G.Ridall, Jurisprudence,(2nd edition)OUP,UK

4. Dias, Jurisprudence,( Indian re-print), Aditya Books,New Delhi.

WEBSITE : -
1. https://en.wikipedia.org
2. https://papers.ssrn.com

3. https://www.academia.edu
4. http://www.indiankanoon.com
5. http://www.manupatra.com
6. http://kuklawnotes.blogspot.in

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