Introduction

The concept of the Pure Theory of Law was developed by Austrian jurist Hans Kelsen in the early 20th century. This theory is also referred to as the Pure Theory of Positive Law or Kelsenian Jurisprudence. Its main goal is to provide a systematic and scientific approach to understanding law that is independent of moral, religious and political considerations.

Kelsen wanted to "purify" legal science from sociology, politics, ethics and metaphysics, and study law strictly as a system of norms. For him, law does not describe what is (facts), but prescribes what ought to be (norms).

Hans Kelsen's Pure Theory of Law emerged in the context of legal positivism and the search for certainty in public law, especially after the fall of empires and the rise of constitutional democracies in Europe. Kelsen was deeply involved in constitutional drafting (for example, the Austrian Constitution of 1920), and his theory has had lasting influence on constitutional courts, international law, and the idea of judicial review.

Core Features of the Pure Theory of Law

The theory encompasses several significant ideas:

1. Hierarchy of Norms

Kelsen's key concept is that laws follow a hierarchical structure, often illustrated as a pyramid. At the apex lies the fundamental rule, known as the Grundnorm, which provides validity to all subordinate norms below it. Each lower-level norm (e.g. a statute) draws its validity from a higher-level norm (e.g. the Constitution), ultimately tracing back to the Grundnorm.

2. Norms and Rules

Norms and rules guide behaviour by informing individuals and institutions about what is required, permitted or prohibited. According to Kelsen, law is a system of "ought" statements (Sollen) which prescribe sanctions for non-compliance. Laws do not primarily describe events, but rather attach legal consequences to certain types of conduct.

3. Legal Validity

Kelsen distinguishes between the validity of a law and its moral worth. A norm is legally valid if it has been created in accordance with a higher norm that regulates its creation (for example, a statute enacted following the procedure laid down in the Constitution). Validity is thus a formal concept, not dependent on whether the norm is just, fair or reasonable.

4. Separation of Law and Morality

Kelsen strongly argues for the separation of law and morality. Legal science, in his view, must describe what the law is, not what it ought to be morally. Morality and justice may inspire or criticise the law, but they are not part of the concept of law itself. This sharp separation makes his theory a "pure" legal positivist theory.

5. Law as Legal Science

Kelsen advocates approaching the study of law in a manner similar to the natural sciences, but with an important difference: natural sciences describe causal relations (cause�effect), while legal science describes normative relations (condition�sanction). Legal science must be objective, systematic and free from value judgements, concerned only with the structure and validity of norms.

6. Legal Positivism

Kelsen's theory is a refined form of legal positivism. It focuses on positive law � law that is actually created by a competent authority (legislature, courts, etc.), rather than on natural law or moral principles. For Kelsen, only norms enacted or recognised by the legal order belong to law, regardless of their moral content.

7. Law as a Normative Science

According to Kelsen, law is a normative science and not a natural science. Law is the systematic character of a legal order consisting of rules (norms). All these rules (norms) ultimately arise from the same basic rule(s) called the Grundnorm. Normative science offers rules and standards of conduct for individuals and institutions, telling them what they ought to do to achieve legally recognised outcomes.

Kelsen's Pure Theory is built on the strict distinction between "is" (Sein) and "ought" (Sollen). Facts (like social behaviour or political power) can explain how laws come into existence, but they cannot, by themselves, explain legal validity. Validity is always a matter of "ought", which is expressed through norms.

Grundnorm

The term "Grundnorm" is a central concept in Kelsen's theory. In simple terms, it is the basic norm that stands at the top of the legal hierarchy. It is the assumed starting point from which the validity of all other norms in a legal system is derived.

The Grundnorm is not a written provision or a specific article in a constitution. It is a hypothetical and presupposed norm, accepted by legal science to explain why the entire legal system is binding. It cannot be justified by another rule within the same system; instead, it is assumed to be valid so that all other norms can be treated as valid.

Think of it as the ultimate legal assumption of a system � for example, "The Constitution must be obeyed" or "The historically first constitution-making act is valid". If members of the legal community (courts, officials, citizens) behave as if this basic norm is valid, the whole system appears as a coherent legal order.

Examples of Grundnorm in Practice

In practical terms, each legal system has its own foundational or constitutional norms that function as basic norms. For instance:

• In India, the Constitution of India is treated as the supreme law. The presupposed Grundnorm can be expressed as: "The Constitution of India must be obeyed".
• In the United States, the U.S. Constitution functions as the fundamental norm of the legal system. All federal and state laws derive their validity from it.
• In Germany, the Grundgesetz (Basic Law) is the basic constitutional charter. The legal order is built upon obedience to this Basic Law.
• In legal systems without a single written constitution (e.g. the historical English system), the basic norm may be described in terms of parliamentary sovereignty and recognised conventions and precedents.
• At the international level, Kelsen suggested that a possible Grundnorm could be phrased as: "States ought to behave as they have customarily behaved", or "States ought to obey general international law".

Contemporary scholars debate whether the Grundnorm is really necessary, or whether constitutional practices, social acceptance and political facts can themselves explain legal validity. Some see the Grundnorm as a useful theoretical fiction, while others try to replace it with concepts like rule of recognition (H.L.A. Hart) or social facts about official acceptance.

Advantages of Kelsen's Pure Theory of Law

• Universality: Kelsen's model can be applied to any legal system (national or international) because it focuses on the structure of norms rather than on specific cultural, moral or religious values.
• Improvement over Austin's command theory: Unlike Austin, Kelsen does not reduce law to mere commands backed by sanctions. He offers a more sophisticated, normative and hierarchical understanding of law.
• Explains constitutional supremacy: The idea of a hierarchy of norms and a basic norm helps explain why constitutional law is superior to ordinary law and how judicial review of legislation is possible.
• Separates law from morality: By keeping moral and political questions aside, Kelsen provides a neutral framework to analyse and compare different legal systems without endorsing their moral content.
• Recognises multiple sources of law: Kelsen's theory can accommodate legislation, precedent, custom and international law as long as they are authorised by higher-level norms in the system.
• Clarifies the relation between State and law: For Kelsen, the State is nothing but the personification of the legal order. This avoids confusing political power with legal authority, making analysis more precise.

Today, Kelsen's ideas remain highly relevant in discussions on constitutional supremacy, basic structure doctrine, judicial review, and international law. Many constitutional courts implicitly use Kelsenian reasoning when they strike down unconstitutional laws or when they treat the constitution as the highest norm in the legal system.

Criticisms of Kelsen's Pure Theory of Law

Despite its influence, the Pure Theory of Law has faced serious criticism from jurists and philosophers:

• Detachment from social reality: Critics argue that Kelsen's theory is overly abstract and disconnected from the social, economic and political context in which laws actually operate. It explains legal validity, but not why people obey the law or how power and inequality affect legal systems.
• Neglect of justice and morality: Since Kelsen brackets moral questions, his theory does not help in evaluating whether a law is just or unjust. Natural law theorists and critical scholars see this as a major weakness because it leaves no space for moral criticism within legal theory.
• Friedmann's criticism: Friedmann considers Kelsen's theory inadequate because it does not sufficiently account for the impact of economics, psychology and sociology on law-making and on the functioning of legal institutions.
• Allen's criticism: Allen points out that custom, legislation and precedent are often co-ordinate and parallel sources of law, not strictly arranged in a single vertical hierarchy, as Kelsen suggests.
• Lauterpacht's criticism: Lauterpacht argues that Kelsen's use of Grundnorm secretly re-introduces Natural Law "through the back door", because it presupposes a basic norm that is not itself created by any legal authority.
• Hypothetical nature of Grundnorm: The Grundnorm is criticised as a fiction without empirical proof. It explains validity by assuming validity, which some see as circular.
• Underestimation of judicial creativity: Kelsen tends to portray judges as merely applying norms, whereas in reality courts often interpret and develop law creatively, especially constitutional courts and international tribunals.
• Western bias: Some modern scholars argue that Kelsen's model is rooted in Western constitutional experiences and may not fully capture the dynamics of mixed, plural or customary legal systems found in many non-Western societies.

Why is it called the "Pure Theory of Law"?

Kelsen calls his approach the "Pure Theory of Law" because it seeks to study law in a "pure" form, free from elements that are not strictly legal, such as morality, politics, theology, psychology or sociology. The aim is to construct a value-free, scientific theory of law that deals only with norms and their validity.

By separating what the law is from what the law ought to be morally, Kelsen hoped to make legal science more precise, rigorous and universally applicable. This "purity" is both the greatest strength and the main source of criticism of his theory.

Conclusion

In summary, Hans Kelsen's Pure Theory of Law offers a systematic and coherent way to understand law as a hierarchy of norms, grounded in the idea of a Grundnorm and separated from moral and political questions. It clarifies the structure of legal systems, the nature of legal validity and the relationship between State and law.

At the same time, the theory has limitations. It is often criticised for being too abstract, for ignoring the social and moral dimensions of law and for relying on the hypothetical concept of Grundnorm. Modern jurisprudence continues to engage with Kelsen's ideas � sometimes building on them (for example, in constitutional and international law), and sometimes rejecting them in favour of theories that place more emphasis on justice, rights and social context.

Also Read:

• Kelsen's Pure Theory of Law
• Nature And Schools Of Jurisprudence An Overview
• Analytical Jurisprudence on Function of law, Sanction and Sovereignty