Kelsen's pure theory of law: norms, the Grundnorm and the hierarchy
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit II: Normative theory of law: pure theory (Hans Kelsen). · LLB · 60 min
Hans Kelsen's normative theory, the twentieth-century form of positivism: law studied 'purely' as a system of ought-norms, each valid because a higher norm authorises it, all resting on a presupposed basic norm, the Grundnorm. The lecture explains why the theory is called pure, the norm and the sanction, the hierarchy of norms, the Grundnorm and its dependence on effectiveness (with the revolution cases), the identity of State and law, monism in international law, the criticisms of Laski, Allen, Friedmann and Stone, and the Indian application: the Constitution as Grundnorm and the basic structure doctrine of Kesavananda Bharati. Kelsen is asked in every paper, usually as a 2-mark definition and a 7-mark critical question.
Objectives
- Explain what Kelsen meant by a 'pure' theory and what he excluded from legal science.
- Distinguish 'is' from 'ought' and state the form of a legal norm and the place of the sanction in it.
- Describe the hierarchy of norms and explain the Grundnorm, its presupposed character and its dependence on the effectiveness of the legal order.
- Compare Kelsen with Austin and apply the standard criticisms of the pure theory.
- Apply the theory to the Indian Constitution as Grundnorm and to the basic structure doctrine.
Slides
- Kelsen and the Vienna school
- Why 'pure'? What the theory excludes
- 'Is' and 'ought': the norm and the sanction
- The hierarchy of norms (Stufenbau)
- The Grundnorm
- Revolution and effectiveness: the Grundnorm in the courts
- State and law are one; no public and private; one world legal order
- Kelsen and Austin compared
- Criticism of the pure theory
- India: the Constitution as Grundnorm and the basic structure
- Summary and answer plan
Loading the lecture…