Pure theory of law under jurisprudence7 min read

-By Richa Choudhary


The pure theory of law is also known as the theory of positive law; a general theory of law, not a presentation or interpretation of a special legal order. From a comparison of all the phenomena that go under the name of law, it seeks to discover the nature of law itself which is further used to determine its structure and its typical forms, independent of the changing content it exhibits at different times and among different peoples. In this manner, it derives the elemental principles utilizing which any legal order is often comprehended. As a theory, its sole purpose is to understand its subject. It answers the question of what the law is, not what it needs to be. The latter question is related to politics, while the pure theory of law is science. The word ” pure ” is associated with it because it seeks to preclude from the cognition of positive law all elements foreign thereto. The limits of this subject and cognition related to it must be clearly fixed in two particular directions only: the particular science of law, the discipline usually called jurisprudence, must be distinguished from the philosophy of justice, on the one hand, and from sociology, or cognition of social reality, on the other.

Pure Theory of Law by Kelsen

The idea or the concept of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881–1973). Kelsen began his long career as a legal theorist at the start of the 20th century. The traditional legal philosophies at the time were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to scale back the law to natural or social sciences, on the opposite hand. He found both of those reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law that would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity is its “basic methodological principle”

1. The Basic Norm

The main challenge for a theory of law, as Kelsen saw it, is to supply evidence of legality and therefore the normativity of law, without an effort to scale back jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is essentially a scheme of interpretation. Its reality, or objectivity, resides within the sphere of meaning; we attach a legal-normative aiming to certain actions and events within the world.

But then, of course, the question arises that’s why certain acts or events have such a legal meaning and others don’t?

Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-normative meaning by another legal norm that confers this normative meaning thereon. An act can create or modify the law if it’s created following another, “higher” legal norm that authorizes its creation therein way. And the “higher” legal norm, in turn, is legally valid if and as long as it has been created in unison with yet another, “higher” norm that authorizes its enactment in that way.

The idea of the essential norm serves three theoretical functions in Kelsen’s theory of law: the primary is to ground a non-reductive explanation of legal validity. The second function is to ground a non-reductive explanation of the normality of law. The third function is to elucidate the systematic nature of legal norms. These three issues are not unrelated.

2. Relativism and Reduction

Common wisdom has it that Kelsen’s argument for the presupposition of the essential norm takes the form of a Kantian transcendental argument. The structure is as follows:

1. P is possible only if Q

2. P is possible (or, possibly P)

3. Therefore, Q.

In Kelsen’s argument, P stands for the very fact that legal norms are “ought” statements, and Q is that the presupposition of the essential norm. In other words, the required presupposition of the essential norm springs from the likelihood conditions for ascribing legal significance to actions and events. To interpret an action together of making or modifying the law, it’s necessary to point out that the relevant legal significance of the act/event is conferred on it by some other legal norm. At some point, as we’ve noted, we necessarily run out of legal norms that confer the relevant validity on a law creating acts, and at that point, the legal validity has to be presupposed. The content of this presupposition is that the basic norm.

Kelsen’s problem here isn’t thanks to the very fact that he was a relativist concerning every normative system, like morality, religion, etc.; it’s not the scope of his relativism that’s relevant to the question of reduction. The problem stems from the very fact that Kelsen was quite right about the law. Legal validity is actually relative to the social facts that constitute the content of the essential norm in each and each legal order. Notice that legal validity is usually relative to a time and place.

3. The Normativity of Law

Let us now see how Kelsen thought that the basic norm helps explain how the law is a normative domain and what this normativity consists of. The first and crucial point to understand is that for Kelsen the thought of normativity is tantamount to a real “ought” because it was; it’s a justified demand on practical deliberation. Certain content is considered normative by an agent if and as long as the agent regards that content as a legitimate reason for action. As Joseph Raz noticed, Kelsen agrees with the law tradition during this particular respect; both assume that the normativity of law can only be explained together would explain the normativity of morality, or religion for that matter, namely, in terms of valid reasons for action. But then, the matter for Kelsen is the way to explain the difference between the normativity of law which of morality; if legal “ought” may be a genuine “ought”, what makes a legal obligation distinct from an ethical one? Kelsen answers that the relevant “ought” is always relative to a given point of view. Every sort of “ought”, be it religious, moral, or legal, must presuppose a particular point of view, some extent of view that’s constituted by the essential norm of the relevant normative system.

We can set aside the difficulties that such a view raises concerning morality. Obviously, many philosophers would reject Kelsen’s view that moral reasons for action only apply to those who choose to endorse morality’s basic norm (whatever it may be). Even if Kelsen is sort of wrong about this conditional nature of ethical imperatives, he could also be right about the law. What remains questionable, however, is whether or not Kelsen succeeds in providing a non-reductive explanation of legal normativity, given the very fact that his account of legal validity clothed to be reductive after all. The trouble here isn’t simply the relativity to some extent of view; the difficulty resides in Kelsen’s failure to ground the selection of the relevant point of view in anything like Reason or reasons of any kind. By deliberately avoiding any explanation of what may ground an agent’s choice of endorsing the legal point of view, or any given basic norm, Kelsen left the most pressing questions on the normativity of law unanswered. Instead of explaining what makes the presupposition of the legal point of view rational, or what makes it rational to regard the requirements of the law as binding requirements, Kelsen invites us to stop asking.The pure theory of law is also known as the theory of positive law; a general theory of law, not a presentation or interpretation of a special legal order.

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