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kelson theory

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pure theory of law

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kelson theory

  1. 1. JURISPRUDENCE HANS KELSON Pure Theory of Law
  2. 2. HANS KELSON (1881-1973) INTRODUCTION • Credit of reviving the original analytical legal thought in 20th century “Pure theory of Law”. • He was born at Prague in Austria in 1881. • He was a professor of law at the Vienna University. • Judge of Supreme Court of Austria for 10 years (1920-30) • In California he expounded his Pure theory of Law.
  3. 3. Pure Science of Law • Suggested that law is related to politics , sociology ,metaphysics & all other extra legal discipline • He rejected Austrins definition law as a command. • He introduce subjective consideration where as he wanted it as a objective. • Theory of Interpretation.
  4. 4. Normative Science He described law as ‘normative science’ as distinguished from natural science which are based on cause & effect such as law of gravitation. The law of natural science are capable of being accurately described,determined &discovered in the form of which it is an essential characteristics of natural science. According to him science of law is knowledge of what law ought to be or it is the ought character which provides normative character to law. E.g- a commit theft he ought to be punished. Like Austrin , Kelson also consider sanction as an essential element but he prefer it to call it norm.
  5. 5. Grundnorm He termed his basic norm as Grundnorm, thus all other norms drive its validity from Grundnorm. Grundnorm is no longer a hypothesis but a fiction of law. We cannot say Grundnorm good or bad as we have to test it politically ,religiously or ethically
  6. 6. Hierarchy chart Commits an offence Get arrested Charge- sheeted Trial in court
  7. 7. Silent Features Certain basic assumptions which can be summarized as : 1.) Aimed at reducing chaos and confusion created by the supporters of natural law philosophy. 2.) Pure theory of Law deals with knowledge of what law is and it is not concerned about what law ought to be. 3.) The theory considered as a normative science & not a natural science. 4.) Theory of norms not so much concerned with the effectiveness of legal norms. 5.) Formal theory confined to a particular system of positive Law as actual in operation.
  8. 8. Implications of Kelson’s Theory Kelson’s pure theory of law covers a wide spectrum of legal concepts such as State, sovereignty, private & public law, legal personality, rights & duties. Law and state are not different but they are in fact one and the same. There is no difference in public and private law. Denies any legal difference between natural and juristic personality.
  9. 9. Criticism of his theory 1.) It excludes all reference of social facts and felt needs of the society, thus pure theory of law without sociological foundation 2.) That all the norms excepting the basic norm are pure has no logical basic. 3.) the theory is found to be based on hypothetical considerations without any practicability. 4.) Does not provide solution for the conflicts arising out of ideological differences, rejects the element of justice as a mere emotion which is indeed not true. 5.) Kelson’s account of legal dynamics is inadequate, it ignores the purpose of law. 6.) It also suffers from methodological shortcomings. He ignores the fact that the action of the authority enforcing law to be valid, has to be in accordance with the procedure and therefore , it became necessary to probe into the content of law.
  10. 10. Indian position Legality or validity cannot be judged. But our Indian constitution amendment is a integral part of mechanism & is open for judicial review. Legality or validity of legislative law is determine by constituent law . BUT Constituent law cannot be judge or determined on the basis of external source. Valid Law has to satisfy two condition :-- 1.) Legally constituted body 2.) Legally valid procedure To amend constitution “Doctrine of basic structure” is given by Supreme Court. And basic structure is nothing but Grundnorm

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