Pure Theory Of Law Essay

Hans’Kelsen
PURE THEORY OF LAW
Vivek Kumar Singh
National Law University Delhi.
76/2011
INTRODUCTION
Hans Kelsen was born in Prague on 11th October 1881 and in 19th April 1973 his death and he was an (Austrian-American) jurist legal philosopher belonged to the analytical positive school of jurisprudences. His most essential contribution to the field of the jurisprudence was and writer on international law, who formulated the “Pure Theory” of law. As a professor of law in Vienna he published several works on public law. In 1919 He was asked to write the constitution which the subsequently adopted in 1920 by Austrian Republic and Kelsen served on the Austrian Constitutional Court until he lost his seat for political reasons and then went

Kelsen a 20th century analytical positivist was concerned to work out a science of law for an era of written constitutions in which a fundamental law was the basis of legal institutions and legislations were to derive their authority there from . For Kelsen, a law postulates the state with the constitution as the ultimate norm. Legislation and custom rest upon the constitution which in the sense of legal logic is the ultimate norm the final source of the system of law. The decisive element for the positivity of law which gives law the character of a self-sufficient system distinct from all other systems of norms, independent and closed within itself, lies in this norm i.e. constitution as the highest, derivable from nothing beyond, through the quality of sovereignty, but by this ultimate norm to the whole system of law raised by it. The norms which emanate from the constitution have to apply coercive measures to administer. The significant features of a legislation are the wrong involved in not complying with "the norm and the organ of a politically organized society which is to apply a provided coercive measure to the wrong. Kelsen, disregards natural law philosophy, nor is concerned with developed or less-developed legal systems, neither with the existential facts of particular legal systems-has developed in his words 'a pure theory of law ', austere in

Laws of pure science (or natural sciences) are laws which are essentially descriptive of the sequence of cause and effects in the universe. For example, the laws of gravitation are a formulation of human experience of the manner in which bodies move towards or attracted by one another. If an apple falls from the tree, it must fall on the ground because of laws of gravitation. As the law for falling the apple on the ground, the law of gravitation must exist. If it does not, then it ceases to be law. On the other hand, the lawyers law belongs to the category of 'ought to .be ' and not 'must ', as it belongs to the normative sphere rather than descriptive. 'A law of the natural sciences tells us "When A is, then B is". A law in the lawyers sense tells us that when 'A is; and then B ought to be". This normative character of "oughtness", is according to Kelsen one of the specific characteristics of law. Kelsen is not concerned in his pure theory of law whether law is good or bad but is exclusively concerned with what the law is. Ultimately the binding force of all such norms derives from the "basic norm" of the particular legal system. Kelsen excluded the possibility that norms ( 'ought ' propositions) can be derived from ( 'is ' propositions). He give example that if X ought to perform the terms of his contract with Y, it must be, he says, because some anterior norm laid down in