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‘Pure Theory’ of Kelson- A detailed review

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Introduction to the Pure Theory of Kelson:-

Kelson gives the Pure Theory of Law. This theory is also known as “Vienna School” because Kelson is the producer of Vienna University. This theory resembles Austin’s command theory because there must be sanction behind the law in Kelson’s theory.

Austin gave it the name of command theory, and Kelson gave it the grand norm theory’s name. Kelson is affected by local conditions, natural conditions, and international conditions. After studying all these conditions, he gave this theory of Law, known as the pure theory of law and grand norm theory.

Concept of the pure theory of Law:-

At the time of Kelson, the Ist world restricted the property of human beings at the international level. So he gave power to international law and avoiding the destruction of the world.

Secondly, during that time, many countries adopted the written constitution. So Kelson also gets influenced by these written constitutions and gave his own theory based on grand norms.

Grandnorm Grand means great, and norm means Law, So it means a great law the superior authority from which law comes out. He compared the grand norm with a written constitution.

According to him, the written constitution is the country’s highest authority, which is known as grand norms. In England, the Parliament is a grand norm; in the USA, a written constitution is the grand norm, and in India, too written Constitution is the grand norm.

The state is not above the grand norm. Sovereignty also livens in the grand norm. According to Kelson, the law is a motive nor science. It means the science of norms.

In-laws only those rules are taken, which are related to legal aspects. Like moral rules, religious rules, ethical rules do not come under the concepts of the grand norm. Here Kelson is equal to Austin when he excludes morals relation or ethics from the field of law.

System of Normative Rules:-

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

Internation Law:-

Kelson says that norms have a force behind it. This force lies in the grand norm. 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 a primitive stage. It is developing.

Nature of Grandnorm:-

According to Kelson, each country has the formation of a grand norm according to local conditions. The duty of jurists is to interpret the grand norm in their own language. They are not concerned with the goodness or badness of the grand norm. They are not concerned with the origin of the grand norm. In this way, the grand norm 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 theory:-

Grandnorm as a source of law:-

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

No difference between law and state:-

Kelson says that there is no difference between law and State because they get power from the same grand norm. Law comes from the grand norm, and the state also comes from the grand norm.

Sovereign is not a separate body:-

Austin says the sovereign is a politically superior person who 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.

No difference between public law and private law:-

Public law is related to the state, and private law is related to 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.

The supremacy of international laws:-

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

Criticism of Kelson’s theory:-

In-spit of having a good concept of the pure theory given by Kelson some of the criticism faced by him, which are as under:

Grandnorm is a vague concept:-

The concept of the grand norm is not clear. It cannot be applied where there is no written constitution. The grand norm base 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.

International Law is a weak law:-

Kelson advocated the supremacy of international law. But even up to now, we see that is no force behind international law.

No difference between state and law:-

various writers also criticize this point. Law is a separate thing from the State. The state is the body is law in which law is a rule that regulates the state.

Difference between public law and private law:-

Kelson says that there is no difference between public and private law, which is also not right in the modern days.

Customs and Precedents ignored:-

He also customs as a source of law while we see that customs are the source of all laws.

Conclusion:-

Although Kelson has been criticized from various angles, he had contributed a lot to society’s development. Thus the concept of grand norm gave power to the public at large and at the national level. His main purpose was to stop the destruction of any world war. This can resemble Austin; also, Kelson is limited by the law.

 

also read: The Stanford Encyclopedia of Philosophy- Pure Theory

What do you think?

Written by lawcrab

Lawcrab is the First Magazine focusing on making the law easier to understand for everyone.

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