''A system of coercion imposing norms which are laid down by human acts in accordance with a constitution the validity of which is pre-supposed if it is on the whole efficacious''.

• In Kelsen’s terms, law is based on norms which stipulate sanctions; hence law may be perceived as ‘norms addressed to officials’ (such as judges). These norms are prescriptive of conduct and may be interpreted in the following manner: if A, then B, i.e., if the circumstances in question constitute A, then B should happen. Thus, if X is not in possession of an appropriate licence, and he imports controlled drugs, then a judge is required to apply sanctions in accordance with the Misuse of Drugs Act 1971. If Y, the owner of a pit bull terrier, allows the dog to be in a public place unmuzzled, a judge may apply the sanctions set out in the Dangerous Dogs Act 1991.

4. THE GRUNDNORM

•  The validity of a given legal norm depends solely, according to Kelsen, on its having been authorised by another legal norm of a higher rank. An administrative order is valid if authorised by statute; the authorising statute is valid if it has been made in accordance with the provisions of a constitution which, in turn, is valid if it has been promulgated by the authority of an earlier constitution. But if, for example, the constitution in question is the first to be promulgated in a new State, then its validity may be considered in terms of what Kelsen describes as a ‘basic norm’ (Grundnorm). This a norm presupposed by legal thinking.  The basic norm--- the final postulate--- behind which one can not go, may take a variety of forms; thus, it might be ‘coercion of man against man should be exercised in the style and under the conditions determined by the State’s first constitution’. A basic norm may be discovered in any legal order; it is viewed by Kelsen as the ultimate source for the validity of all those other norms belonging to the same legal order.

5. ILLUSTRATION OF NORMS

• Within a given legal system it should be possible to discern a hierarchy composed of different levels of legal norms, at the apex of which the Grundnorm, valid only because it is presupposed, and providing authority for all other norms within the system. Assume circumstances in which, under appropriate rule emanating from statute, and subsequent to his conviction by a court, X is imprisoned. The act of the prison officer who effects X’s actual imprisonment derives its validity from the sentence ordered by the court following X’s trial. The validity of the court’s action is derived from an appropriate statute which, in turn, owes its authority to promulgation by the Queen in Parliament. Beyond that promulgation is the law and custom pertaining to the authority of Parliament. Beyond that is a final, basic, norm, relating to the acceptance by the community of the overriding nature of Parliamentary pronouncements embodied within statute. In applying statute law in X’s case, the judges are, in Kelsen’s terms, ‘concretising’ the general norms controlling that case; the decision in X’s particular case constitutes an ‘individual norm’. Where the administrative organs within a legal system apply general norms to a particular case so that an administrative decrees results, the individual norms created constitute ‘the law’.

6. EFFECTIVENESS AND VALIDITY OF NORMS

• Kelsen distinguishes the ‘effectiveness’ of a legal norm from its ‘validity’. The term ‘validity’ implies that a legal norm should be obeyed and should be applied in given circumstances. ‘Effectiveness’ means that, in practice, the norm is actually obeyed and applied. In his revised version of the pure theory, Kelsen stated that a norm which is not obeyed by anyone anywhere, i.e. Which is not effective at least to some degree, can not be regarded as a ‘valid’ norm. The implication is that although a legal norm requires authorisation by a higher norm, a further condition of its validity is ‘a minimum of effectiveness’. Hence, within a community, universal and total obedience to the basic norm is not essential; there must be within the community, however, a sufficiency of adherence to that basic norm, allowing it to be effective in practice. The ‘principle of legitimacy’ is restricted by ‘the principle of effectiveness’. The efficacy of the total legal order is a necessary condition for the validity of every single norm of the order’.

7. NORMS AND THE STATE

• The pure theory stresses the concept of law as possessing to moral connotation whatsoever; a decisive criterion in law is derived from the ‘element of force’ underlying sanctions. The apparatus of the law, its courts and other legal institutions, possess the capacity to protect any type of political structure. (Law may be thought of as a highly specific technique of social organisation). Further, the law is all embracing: in effect, there is no human behaviour which, as such, is excluded from being the content of a legal norm. From this, Kelsen suggests the identity of the State and the law. The State is a political organisation expressing a legal order; it is governed by law (a State not governed by law is, says Kelsen, ‘unthinkable’). We may consider that State as a totality of the norms within a hierarchy; it is nothing other than ‘the sum total of norms ordering compulsion’ and is, therefore, co-extensive with the law.   The State is the law, and the traditional dualism of ‘law v State’ can no longer be maintained.

8. CONCLUSION (PURE THEORY AS EXPRESSION OF POSITIVISM)

• The pure theory has been described as ‘perhaps the most consistent expression of positivism in legal theory’. Its links with classical positivism and its exponents-Hume, Bentham and Austin- are clear. Rejection of natural law, concern for form and structure, a separating out from legal theory of the social and moral content of law, are obvious in Kelsen’s analysis. The pure theory represents, according to Friedmann, ‘a quest for pure knowledge in its most uncompromising form, for knowledge free from instinct, volition and desire’. Kelsen’s task was to discover what he considered as the true essence of the law and, as a consequence, to reject all that which is clearly in flux or merely accidental. The result is a theory which carries the positivist analysis to an advanced stage and which treats the law, in Bodenheimer’s phrase, ‘as though it were contained in a hermetically-sealed container’. The pure theory attempts to see law as a systematic, unified concept; a legal order is presented in sparse terms as a system of normative relations whose unity stems from the one reason for the validity of norms- a fundamental norm. The contribution of the pure theory to an understanding of law rests in its enunciation of the relation between the fundamental norm and other, lower norms within the society; it does not pronounce on the ‘desirability’ of the fundamental norm, for that is a task for the political scientist, not for the jurist.

Q: ‘An exercise in logic and not in life’.

Doest this statement exemplify the criticism directed against the ‘pure theory of law’?

                                                ANSWER:

1. INTRODUCTION

• The quotation comes from Laski’s Grammar of Politics, in which he suggests that, given its postulates. Kelsen’s ‘pure theory’ of law is unanswerable, but that its substance is an exercise in logic, not in life. Many of the criticisms directed against the ‘pure theory’ do rest, indeed, on what is perceived as its aridity and separation from the realities of legal activity within the community. But there are other important criticisms, some of which are mentioned below, based on the implications of Kelsen’s methodology of enquiry. The target of these criticisms is a theory which emerges from an attempt to view law purely in terms of reason and in a manner which excludes all ethical and political value-judgements. Law is as a coercive order, based on a system of norms, the validity of which is derived from a basic norm.

   

2. THE ESSENCE OF CRITICISM OF KELSEN

• A major criticism, encapsulated in Laski’s comment, is that the theory chooses to disregard the totality of a society in which law plays a relatively restricted, though important, role. To abstract from a consideration of the law its surrounding social and political factors is, it is argued, virtually impossible, even if it were desirable. Law does not exist as an isolate: it is affected in considerable measure by the dynamic nature of the community of which it is a part a perusal of any aspect of our common law and current legislation indicated the difficulties inherent in any attempt at investigating the law as a phenomenon ‘in itself’. Thus, the law relating to theft may have little ‘meaning’ save as an expression of communal ethical attitudes to the ownership and possession of property. The European Communities Act 1972 expressed political and economic ideologies. The Children Act 1989 articulates deep and complex concepts of the community’s social responsibilities. Remove discussion of the inner significance of legislation of this nature, and one is left merely with ‘form’ as an object of study-it has been given un warranted primacy over ‘meaning’.  

3. RESULTS OF HIS FAILURE TO EXAMINE LAW IN ITS SOCIAL SETTING

• An allied criticism is based on Kelsen’s decision to ignore the concept of ‘justice’ and on his apparent lack of concern for the nature and significance of human rights. Kelsen seems to view ‘justice’ as a mere expression of an irrational idea. Because it is not subject to scientific cognition or investigation, it is not to be considered as having any role in the foundations of law. For Kelsen it involves little more than ‘the conscientious application of appropriate general rules’. Justice as a measure of the validity of laws is rejected. Hence a concept which, for many communities and jurists, is seen as expressing the end of law, is dismissed by Kelsen because it appears to be beyond the pale of cognition. But because legal life as we know and experience it is consciously based upon a desire to act in accordance with the tenets of justice, and because unjust behaviour is generally unacceptable, Kelsen’s doctrine gives the impression of ignoring the complex and deeply-held feelings which characterise much legal activity. It is worth nothing, too, that the history of this century gives little reason to view with equanimity the promulgation of a systematic interpretation of law from which the concept of justice has been banished.

 

4. HIS ATTITUDE TO A STUDY OF JUSTICE AND RIGHTS

• The exclusion of ‘justice’ from the ‘pure theory’ has led some critics to question not only the resulting sterling of its findings, but the claim advanced by Kelsen to have ‘explained’ the reality of the law. It is suggested that, in dogmatic fashion, he has limited the data he wishes to explore to some positive legal matters while ignoring substantive, conceptual legal realities. The result is no more than a highly selective and incomplete investigation. The ‘reality’ of the theory is flawed by a misconceived approach to so called ‘objective phenomena’.

 

5. CRITICISMS OF THE THEORY IN RELATION TO SANCTIONS AND OBLIGATIONS

• The place of force (‘coercion) in the pure theory has evoked adverse comment. There is no explicit assertion in the theory that law is only force, but there is an inference that the effectiveness of law seems to be based solely on force or sanction. All law must possess ‘ an apparatus of compulsion’, Kelsen argues, and the essence of law is in duty, not in right. One’s legal duty is as the law commands, with coercion available for the enforcement of norms. But critics have suggested that this is a confusion of ‘coercion’ and ‘obligation’. It is because a rule is considered by the community as obligatory that it is possible to attach to it some measure of coercion; the rule is not obligatory merely because there is coercion. The rules relating to individual physical inviolability are considered by most communities to be of an obligatory nature and therefore penalties are attached to their breach; the rules embodied in the OAPA 1861, are not considered as obligatory merely because of the sanctions contained therein. Further, Kelsen is said to have ignored the discussions on communal attitudes to obligation, punishments, etc, which form the content of important work in the social sciences. Kelsen’s norms seem to be little more than formal, authoritarian commands enforced by whose who happen to have a monopoly of force within the community. This has been criticised as a caricature of real life: laws are not obeyed merely because of threatened sanctions; some statutes impose duties without the threat of any sanction. Duties and sanctions require separate definitions because, in reality, they are not conterminous.

 

6. PROBLEMS OF THE GRUNDNORM

• The concept of the Grundnorm (the ‘basic norm’), which is central to the ‘pure theory’, is not without its critics. The basic norm (‘presupposed in juristic thinking’) is that which is said to give a unity to the legal system in that it tops the pyramid of norms and gives those norms their validity.  This has been condemned as mere fiction, or as being little more than Austin’s ‘sovereign’ in disguise, or as a mythical ‘first cause’ beyond which one ought not to venture in any investigation of law. A statement such as ‘the first constitution must be obeyed’ is criticised as self-contradictory. The reasons why the law is obeyed, argue the critics, are to be found in more than one so-called ‘fundamental reason’ and certainly not in any fictitious basic norm, the very existence of which rarely figures in the conscious responses of citizens to their legal obligations. Further, if one considers the activities of the community’s judges, the Grundnorm will not explain the many ‘non-rule standards’ which jurists such as Dworkin perceive as entering into decisions of the courts. Judges probably take into account, during the process of adjudication, much more than formal rules: they keep in mind wide principles and communal policies-the very matters which Kelsen seeks to exclude from a formulation of the essence of law.

     

7. INVESTIGATING LAW IN TERMS OF THE PURE THEORY

• The very search for a Grundnorm within a legal system will be affected by the personal value-judgements of the investigator---so runs a common criticism of the methodology of Kelsen’s supporters. Further, it is very difficult to investigate the validity of Kelsen’s test of a ‘minimum of support’ for a basic norm without enquiring into surrounding political and social facts-an unacceptable state of affairs for advocates of the ‘pure theory’. If, for example, it is assumed by these advocates that the basic norm of a community is ‘belief in the divinity of the law-giver’, or in his charismatic law-making, it would be almost impossible to discover the level of support for that belief without enquiring into ways in which the law-maker’s subjects are affected in practice, and that would necessitate investigation of a variety of social matters of a ‘non-legal’ nature.

 

8. INTERNATIONAL LAW

• The problems raised by the existence of international law have been viewed by critics as constituting a basic obligation to the ‘pure theory’. In Kelsen’s view, international law can be interpreted correctly as ‘judicial order’ which may be understood within the boundaries of a ‘normative science of law’. But it appears that international law lacks a number of characteristics of a ‘legal order’ in Kelsen’s sense. It has no developed apparatus of compulsion and apparently no Grundnorm. Kelsen’s reply to this objection suggests an acceptance of war and reprisals as constituting the ‘international sanction’. This, for many jurists, involves a negation of the spirit and essential purpose of the doctrine of international law. Further, it may be that a multiplicity of basic norms is required for the interpretation of the complex structure of the law of nations, but this would certainly offend the austere sense of parsimony which is characteristic of the ‘pure theory’.

9. ALLEN’S CRICISM

• There are, then, many points in Kelsen’s theory at which evidence emerges suggesting a lack of correspondence pf its express and implied doctrines and legal life, as we know it to be. The theory, it has been said, has no application to the everyday problems of the law; it solves none of the recurring difficulties which face legislators and judges. If the ‘proper business’ of a positivist jurist be with the actual operations of the law, then Kelsen might be considered as having contributed little to an understanding of those operations. Allen suggests that, in Kelsen’s anxiety to keep perception of the law ‘pure’, he has raised it to such an inaccessible altitude that ‘it has difficulty in drawing the breath of life’. Geny, writing before Kelsen, had warned against the ‘palpable illusion’ of attempting to erect a pure judicial science on the postulates of ‘an inevitable and imperious logic’, with the result that what is created is barren and without value. It is, perhaps, this criticism which Laski had in mind in his comment on Kelsen.

10. CONCLUSION (UNACCEPTABLE NARROWNESS OF THE THEORY’S BASE.

   

• It is paradoxical that Kelsen, criticised for remoteness and a prediction for authoritarian jurisprudence, both of which are said to be evident in the ‘pure theory’, should have been, in fact, a jurist who was intensely concerned with the practicalities of the law. He had rejected authoritarianism by choosing exile from his native Austria which was under totalitarian rule, and he made a fundamental contribution to the legal foundations of the United Nations in hid commentaries on the basis of UN proposals for international security. His concern was to give to legal science a methodology which would enable the law—no matter what its form or origins might be –to be understood. The resulting edifice seems to have been constructed, however, from postulates and  perceptions which ignored the peculiar richness and complexities of developed legal systems; its basis is now seen by some jurists as being unacceptably narrow. It may be that any attempt to create a ratified ‘pure theory’ which involves separating law from custom, tradition, communal conceptions of justice and morality, will succeed only in erecting a system of jurisdictional thought which, no matter how logical its methodology may be, is, in the event at variance with the life of the law.