Analysis Of Hans Kelson's Theory Of Law

Hans Kelson (1881-1973) is an Austrian-American legal philosopher, teacher, jurist and writer on international law, who formulated a kind of positivism known as the “pure theory of law”.

According to Kelson, a theory of law should be uniform. It should be applicable to all times and in all places. Kelson advocated general jurisprudence. He writes that a theory of law must be free from ethics, politics, sociology, history etc. and must be logically self-consistent.1

Kelson is often described as a positivist. But Kelson’s normativism is conceptually distinct from the empirical tradition of legal positivism because it confuses law with fact. He rejects

Natural law theory because it confuses law with morality. For Kelson, the law consists of

norms:

The present write up analyses his pure theory of law in the contemporary Indian scenario with illustrations, examples, as the case may be.

II. PURE THEORY OF LAW AND ITS CRITIQUE:

The Pure Theory of Law is a theory of positive law. It is typically connected with what the subject matter definition is in accurate terms. It answers the question of “what law is?” and not

“what it ought to be” as its endeavour. Accordingly it’s not a politics of law, but is a science.2

The “pure” theory of law means that is it concerned solely with that part of knowledge which deals with law, excluding from such knowledge everything which does not strictly belong to the subject matter ‘law’. Which means that the theory of law must be free from other subjects like ethics, sociology, politics, history, psychology etc. In other words, it must be pure. That is, it endeavours to free the science of law from all foreign elements. This is its fundamental methodological principle. The impurity according to him, follows through other subjects, whose dissociation from law makes it a pure theory. Thus, the science of law deals with an examination of the nature and organisation of normative propositions as they are

This is also valid on account of the link between law and social sciences or science.3

Thinking of which, leads us to various illustrations and examples wherein law has not been able to make a mark in isolation or the study of law in dissociation with other subjects holds good. Law is a social phenomenon. The relationship between legal forms and social sciences has been rapidly growing in India over the previous decades.

Ethics: Ethics involves areas of human behaviour or activity which are governed according to moral principles. For lawyers, it is always true that their allegiance is split – a duty is owed to the court while another is owed to the client. Sometimes, there can exist many conflicts in between the two. Such situations are always characterised by a duty which obligates a lawyer to owe his allegiance to the court. Deliberately delaying proceedings in order to force the opposite party with settlement(s). In such situations, law cannot stay isolated from ethics, ethics included in the profession have a long way to go before dissociating it with law. The Advocates

Act,