Kelsen’s Pure Theory of Law & HLA Hart’s Theory

By | September 28, 2019
Kelsen's Pure Theory of Law & HLA Hart's Theory

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Kelsen’s Pure Theory of Law & HLA Hart’s Theory | Overview

This article deals with Kelsen’s Pure Theory of Law & HLA Hart’s Theory. Kelsen distinguished between legal science and natural science on of “oughts”. He has strongly criticized Austin’s view of law as “command”.

Kelsen’s Pure Theory of Law

With his Pure theory of law, Hans Kelsen did not wish to present any new ideology of law. Rather, his aim was to present law as it is, free from all the various ideologies. He wanted to examine law in its purest form. Kelsen’s pure theory can be said to be one of the most refined developments of analytical positivism.  

Premises

Kelsen started his pure theory with certain premises. The same can be roughly summarized as follows:

  1. He believed that a theory of law must always be based upon law “as it is” and not on law “as it ought to be”.
  2. According to him, a theory of law must hold good at all times in all places. Thus, he was an advocate of general jurisprudence.
  3. He opined that a theory of law must be ‘pure’, that is, it must be free from the influence of other social sciences and disciplines. A theory of law must deal with law alone. He did not deny the importance of the other social sciences. However, he always believed that law must stay away from other considerations.
  4. He believed that law is a normative science and that legal theory must be concerned with the effects of legal norms. He always equated the knowledge of law with that of “norms”.

The Basic Norm (Grundnorm)

Kelsen distinguished between legal science and natural science on the basis of “oughts”. According to him, legal science deals with what ought to have happened. For instance, in case of a murder, legal science would always speak of the punishment that must be given to the murder. It would always speak of what should be done according to the law. He further goes on to say that in every legal system there exists a hierarchy of such “oughts” which emerges from a single “ought” which is known as the Grundnorm. It is not necessary that the grundnorm is same in all the legal system. The concept, in general, is present in all the legal systems.

However, its contents may differ. The grundnorm is the backbone of the legal system. According to Kelsen, it is not necessary for every legal rule to stand on its own. One legal rule is a derivation from another legal rule. However, the grundnorm is an exception to this. It is a stand-alone rule from which other legal rules are derived. Kelsen further states that the grundnorm owes its existence to its popularity. A grundnorm must necessarily be willfully accepted by the people and must be followed by them. Once such a norm loses popular support, it ceases to exist as a grundnorm and another norm is deemed to be a grundnorm. Such a phenomenon is known as a revolution.

Critics have argued that with his grundnorm, Kelsen has failed to keep his theory of law ‘pure’. This is so because the concept of grundnorm rests on sociological aspects in so far as the requirement for popular support is concerned.

Implications of the Pure Theory

Kelsen arrived at the following conclusions from his idea of grundnorm:

  1. There exists no distinction between public and private law. Both of them have their origins in the
  2. It is not the idea of right, but the idea of duty that is essential. This is evident in the element of “ought” present in every norm. He concluded that law essentially structures human behavior and that the idea of duty is essential to fulfill this function. The idea of right is only a by-product of the legal system.
  3. Personification is used by law only as a technical device to achieve its goal as a normative science. Thus, the distinction between natural persons and juristic persons is irrelevant for the purposes of studying law.
  4. The distinction between procedural law and substantive law is relative and procedural law is more significant.
  5. The distinction between question of law and that of fact is relative. Fact is nothing but an assumption of the judge as to what must have happened in order to apply a particular norm.
  6. Kelsen did not believe in the separation of power and argued that all the three- legislature, executive and judiciary- are essential “norm-creating” agencies.

Criticism

Lord Lloyd has applauded the fact that Kelsen’s pure theory avoids some of the perplexities of Austin’s analytical positivism. However, he expresses concern over the uncertainty of the basic norm. It is difficult for the idea of basic norm to survive in the age of scientific behavioralism. Prof. Laski has stated, “granted its postulates, I believe the pure theory to be unanswerable, but….its substance is an exercise in logic not in life.”

H.L.A. Hart’s theory

H.L.A. Hart is generally regarded as the face of British Positivism. He has strongly criticized Austin’s view of law as “command”. He uses the concepts of “power” and “rule” to counter Austin’s analytical legal positivism. Prof. Hart has mainly studied law as a collection of legally binding rules.

Primary & Secondary Rules

Rules, according to Hart, may be categorized into primary rules and secondary rules. Primary rules are those rules which require human beings to do or abstain from doing certain things. Secondary rules are those which are secondary to the primary rules and lay down certain acts which may, upon commission, lead to the creation of new primary rules. Duties can be said to primary rules, whereas, powers can be said to be secondary rules.

Defects in Primary Rules

Hart has identified the following three defects in primary rules:

  1. Uncertainty- The first and foremost defect is with regards to the uncertainty of primary rules. If a dispute arises with regards to the scope of a particular primary rule, there exists no set procedure to resolve such a dispute.
  2. Static Character- Another defect in primary rules is with regards to its static character. Primary rules may undergo a change only by way of the gradual evolution of society. Thus, the process makes primary rules quite rigid and static.
  3. Inefficiency- Disputes with regards to the violation of a primary rule shall always occur and there exists no set mechanism or procedure or any competent authority to deal with such disputes. Thus, the “inefficiency” of primary rules forms its third defect.

Remedies for the Defects

According to Hart, the simplest remedy for the aforesaid defects is to introduce secondary rules for each one of them. The proposed remedies are as follows:

  1. “Rule of Recognition”- In order to cure the defect of uncertainty, a secondary rule of recognition may be introduced whereby the primary rules may be codified in the form of an authoritative text.
  2. “Rules of Change”- In order to cure the defect of the static character of primary rules, secondary rules of change providing a procedure for amending or changing primary rules may be introduced.
  3. “Rules of Adjudication”- Secondary rules of adjudication may be created which would empower certain individuals to authoritatively decide upon disputes related to primary rules and adjudicate upon the same.

“Internal Aspect” of Law

According to Hart, apart from external factors such as sanctions and societal pressure, the law also depends upon some internal factors. A law must be willfully obeyed by the people. They must consciously accept it and abide by it. Law must hold well from the internal point of view of the people. Officials must also internally recognize and consciously accept and abide by the various secondary rules. Such an internal aspect is an essential element to constitute a successful legal system.

Criticism

Lord Lloyd has stated that Hart’s classification of primary and secondary rules is an extremely helpful tool in analyzing legal concepts. However, he expresses his doubts over the proposition that all legal rules can be classified as primary and secondary rules. He further goes on to express his concern over the uncertainty and immeasurability of Hart’s “internal aspect” of law. Prof. Ronald Dworkin criticizes Hart’s theory on the grounds that he recognizes only rules. He counters it with his concept of “principles”. Eckhoff has contended that Hart has confused the binding part of the law with the other aspects of law.

The theories of both, Kelsen and Hart, constitute essential aspects of the Analytical School of Jurisprudence. Though due to various reasons, both the theories might have lost their utility in contemporary times, they nevertheless continue to be used by various jurists and thinkers in their analysis and study of legal concepts.


References

  1. V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company.
  2. W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).

  1. Legal Realism & American Realism and the Scandinavian Realists
  2. A Comparison Between Legislation and Precedent