Hans Kelsen (1881-1973), an Austrian jurist and philosopher stated the following points at the beginning of the 20th century which can help in summarizing his theory:
- Law is a Normative Science: He avoids the psychological definition of law given by Austin and states that law may be distinguished from science norms.
- Separation of law from other Social Sciences and Morals: He limits the relation with other forms of law and other sciences like politics, logic, history, etc, and morals.
- Grundnorm: His theory is based on a pyramidical structure of hierarchy of norms which derive their validity from a basic norm “Grundnorm” and if anything goes beyond this basic norm, it is held to be unconstitutional.
He proposed a strict separation between law and morality because by doing so he limits the scope of jurisprudence. He states that a law that gives effect to a moral rule is a law not because of its moral content rather because of its formation in a particular manner that is born out of a definite procedure and definite rule of law.[1] He considered two points for not including morality in his theory:
- His view over morality was very down and not up to the mark to be considered for this theory.
- Secondly, morality was something unrelated to him as he was sure that this can be differentiated from law to get a better understanding.
His focus was on the law as it is and not as it ought to be. The theorists before him and created a lot of confusion by mixing law with other forms of law and morality. A law must stand on its own and not take support of any other form like sociological, historical, morals, etc. According to him, a pure system is required to trace the history of law and maintain a balance in the legal system, and therefore his theory is called the “Pure Theory of law.” His main aims were:
- To reduce chaos and multiplicity that existed regarding the theories of law as much confusion and complexity were existing during those times.
- Legal theory is a science and not a volition, which means it focuses on law at present and not something uncertain and dependant on the future.
- Law is normative and not a natural science, which means that a norm will stand legally valid even if nobody follows it and by doing this, he brings about a relation between legal validity and efficacy.
He did not agree with the “Command Theory” given by Austin as according to him, there can be other sources from which law can be traced and not only restricted to Sovereign. Following the criticisms of other philosophers and not accepting their form of theory, Kelsen wanted to come with something new and comprehendible way to understand the theory of law and make it simpler than it existed and so he did not mix it with any other concepts and tried to keep it as simpler as he could.
[1] Kant’s Transcendental Idealism, published on March 4, 2016, page 1.
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