Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
Hans Kelsen (1881-1973) was one of the most famous theoreticians of 20th century. He is the founder of the “pure theory of law.” His pure theory is also known as theory of Grundnorm, Hierarchical theory and normative theory. While Kelson was professor of law at Vienna University, he founded the so called Vienna School of Jurisprudence, which preached/ pronounced/ proclaimed the “pure theory of law.” Kelsen called it pure, because the theory describes only the law and the theory excludes everything that is strictly not law. According to him, a law must be explained by another law, a law must be realized by another law and a law will receive its validity from another superior law. Thus, it will get a pure character and will be acceptable. Kelsen further stated that, any theory of law will be pure and acceptable if it is logically self-supporting, and not dependent on any external factors i.e. not influenced by factors like natural law or sociological or political or historic influences. Again, Kelsen rejected the idea of command theory and opined that, the source of power of the statute is the Grundnorm or basic norm. According to him, a “Grundnorm” or “Basic norm” stands at the head of the system. This gives validity to the whole of the legal system and all legal rules will ultimately receive their validity from it. Each rule or norm will receive its validity from its superior rule or norm. Thus all rules or norms will be derived from the same basic rules or norms, which kelsen has called Grundnorm. Kelsen’s theory or system of “Grundnorm” will be clear by the following paramedical explanation:-
In this paramedical structure, it is seen that No.1 indicates the apex of the pyramid which is the Grundnorm. No 2-7 indicate different norms at different layers. All these are subordinate norms under the Grundnorm and there is a clear hierarchy between them.
This paramedical structure of hierarchy of norms will be clear by an example:-In Bangladesh, Constitution is the supreme law of the land that is the Grundnorm. Parliament has received its powers and validity from the constitution. With this power, parliament conferred its law making power to a subordinate authority and
law created by that authority is called delegated legislation. In this process, parliament passed the University Act and conferred the power of creating rules and regulations of University upon the syndicate of the University. Hen, syndicate elect and appoint the Dean or Chairman. Finally, Dean or Chairman take initiative to admit the students.
So, it is clear that, there is strict hierarchy between each stage of the law. That’s why Kelsen’s theory is called hierarchical theory of law. In the above example, it is seen that students received their validity from dean or chairman and in the same way each inferior norm received its validity from its superior norm. In this sense, Kelsen’s theory is called the normative theory of law.
Kelsen finally stated that, the Grundnorm or basic norm derives its validity from the fact that, it has been accepted by some sufficient minimum number of people in the community. According to him, the source of Grundnorm or Constitution is the International law.
Kelsen treated law as a science free from natural, sociological and political elements. This approach brought him into open conflict with communist doctrines which subjected law to the political structure of the state and with sociological jurisprudence which regarded law as reflecting the society in which it existed.
Kelsen said that, Grundnorm derives its validity from the people of the community. This is ultimately nothing but the people’s will which is also pronounced by the sociological school. So, kelsen’s view here is contradictory Kelsen avoided the necessity and application of custom and precedent. Sources of law like custom, statute and precedent are co-ordinate and do not admit of arrangement a hierarchical pattern adopted by kelsen
Pure science of law by kelsen is inadequate from point of view of legal theory. Law is now closely related to other social sciences like Economics, Sociology and Psychology.
