The Pure Theory of Law, created by Hans Kelsen, has been important and controversial throughout the
20th century. Kelsen believed that law is a “pure” science that has no connection with morality or
political bias. He was totally against dictatorship and was for democracy His concept was drawn from the
legal positivist John Austin. His idea is based on the Grundnorm, or Basic Norm, which is the
assumption that all other rules are based on. Kelsen's framework is a thorough way to look at things, but
it has gotten a lot of bad press because it is seen as too general, not useful, and not consistent with real law
systems.
Kelsen looks at the form of the law rather than the content. For him, what’s most important is what the
law is rather than what the law ought to be. Like Austin, Kelsen theory is based on coercion. For Austin,
laws are commands that are given to the subjects by the sovereign and if the commands are not followed
there would be sanctions. However, for Kelsen, laws are norms that are directed to the agents or officials
to apply sanctions. He further stated that the legal norms impose duties or give powers only to the agents
or officials and does not impose any duties to the citizens. So even if someone commits a wrong or
‘Delict’ he would not be breaching the norm as per Kelsen; he would trigger the criteria where the
officials have to apply the sanctions.
The key component in Kelsen theory is the Grundnorm (basic norm) which validate laws. According to
Kelsen, each law authority comes from higher norms ending with the Grundnorm which is an idea and
not a rule, that supports the entire legal system. How can an abstract idea ground the whole legal system?
The Grundnorm is vague compared to the written constitution which provides clear rules.
Kelsen claimed that a legal system is valid as long as it is effective (when the majority obey the rules). If
we go as per Kelsen, then even a dictatorship can enforce its laws. This was seen in State v. Dosso case.
However, in the case Asma Jilani v. Administration of Punjab, the court held that an illegal government
could not be made legal only by using force. This contradiction shows that Kelsen's focus on
effectiveness makes him ignore the basic ideas of fairness and legality, which are at the heart of most
legal systems’ goals.
Another problem with Kelsen's theory is that it doesn't consider law systems that either merge or become
different. International law, religious law, and traditional practices are all often a part of modern legal
systems; they are rarely separate. After the UK joined the European Union, EU law sometimes took
precedence over British law. Kelsen says that all rules should come from a single Grundnorm. But in real
life, legal systems often have sources of power that are at odds with each other.
H.L.A. Hart who is also a legal positivist came up with an alternative to Kelsen's Grundnorm that was
more practical. Hart suggested the rule of recognition as a basic idea. Hart's rule, which is based on real
law processes, is very different from Kelsen's abstract Grundnorm. Hart’s rule of recogniti Hart claimed
that "norms" and "facts" should be kept separate as it is vital to separate law and morality. Kelsen's norms
are aimed at officials, so it is believed that they consider laws that give power to citizens. It has also been
argued that Kelsen's theory doesn't distinguish between civil and criminal behaviour, as it doesn't
distinguish between delinquent and non-delinquent behaviour, so there will be no difference between tax
violations and failure to report income as required by law.
