essay on kelsen pure theory of law

Kelsen’s Pure Theory of Law – Objectives, Essential And Criticism

Introduction.

Hans Kelsen (1881-1973) was an Austrian jurist and philosopher and he began his career as a legal theorist at the beginning of 20th century. He was the judge of the Supreme Constitutional Court of Austria for the duration of ten years from 1920 to1930. His notable works are Principles of International Law and Pure Theory of Law. Hans Kelsen firstly proposed his theory in 1934 and expanded it in 1960. Kelson’s pure theory of law is also known as Normative theory. It is called the pure theory of law by Hans Kelsen because it talks about pure law and it excludes the other factor affecting the definition of law like morality, ethics, economics, sociology, etc. Kelsen’s theory stands at the same level and has a similar importance to Austin’s theory. Kelsen believes the concept that the law should be pure from any investigation such as sociological, political, historical, logical, etc. The law won’t be supported all those parts underprivileged, connected, or mixed. Thus, according to Kelsen, “the law will stand on its own”.

Kelsen’s Pure Theory Of Law

1. Law is a normative science :- According to Kelsen, the law is a ‘normative science’, but law norms may be distinguished from science norms. Kelsen defines ‘science’ as a system of knowledge arranged according to logical principles. According to Kelsen, a norm is a rule prescribing a certain behaviour. He distinguishes between legal norms and moral norms. He told that moral norm only says that “what a person should do or not do” but the legal norm says if a person does any act against the norm then he will be punished by the State. Kelsen does not admit the command theory of Austin as it introduces a psychological element into the definition of law which Kelsen avoids. Kelsen believes the law should be defined as Depsycholised command. Kelsen also considers ‘sanction’ as an essential element of law but he prefers it to call it ‘norm’. Kelsen’s theory of law is an analysis free of all ethical and political judgements or values.

Norms and its validity:

According to Kelsen, in order to assign the legal meaning to an act, we take the help of Legal norms.  NORM is the meaning of an act of will by which certain behaviour is commanded or permitted, or authorized.

The validity of norms is described as :

• Validity means the specific existence of the norm.
• Validity of a norm means that a norm is binding, and an individual ought to behave in the manner determined by the norm.
• Kelsen captures the following two postulates:
• Every two norms that ultimately derive their validity from one basic norm belong to the same legal system.
• All legal norms of a given legal system ultimately derive their validity from one basic norm.
• The reason for the validity of a norm can only be the validity of another norm.
• A legal order does not lose its validity when a single norm ceases to be effective nor does a single norm lose its validity if is only ineffective from time to time.
• Effectiveness is a condition for validity but it is not valid. The question of the validity of a norm precedes the question of its effectiveness.
• The reason why a norm is valid and why an individual ought to behave in a certain way, cannot be ascertained by a fact, i.e., by a statement that something is; the explanation for the validity of a norm can’t be a fact.

2. Separation of law from other social sciences and morals :- Kelsen limits the scope of jurisprudence by excluding its relation with other social sciences. He differentiates law from politics, sociology, metaphysics, and all other extra-legal disciplines. According to Kelsen, an acceptable theory of law must be pure i.e. logically self-supporting, and not dependent upon extra-legal values, the law of nature, or any other extraneous factor (such as the sociological, political, economic, or historical influence of law).

3. The Grundnorm :- Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed as ‘Grundnorm’. In other words, we can say that if the other norms are against the Grundnorm then those norms will be invalid. In the pyramidical structure of hierarchy, the Grundnorm is at the top and is fully independent of all the other norms. The subordinate norms are controlled by their superior norms. Kelsen said that all the other norms in our legal system can be traced to the final source and that the final source is Grundnorm. Kelsen states that there should be a Grundnorm in every state not necessarily it’s the same for all the states. Every state can own its different Grundnorm.

For example – Constitution is our Grundnorm, all the other laws like IPC, CrPC, CPC, and other laws check their validity from the Grundnorm which is Constitution. If in IPC any such law made which is against the Grundnorm then they will become invalid.

The Supreme Court of Pakistan in State v. Dosso [1] had also upheld the Kelsenite theory of effectiveness and validity of revolutionary government which had come into power by overthrowing the legitimate Government and destroying the previous Constitution. However, this decision was subsequently overruled by the Supreme Court (of Pakistan) in Jilani v. Government of Punjab [2] ,   which rejected the authority of the revolutionary government by overthrowing the existing regime. The same history repealed again in Pakistan in 2007 when the Military General Parvesh Musharraf removed Nawaz Sharif’s popular Government in 2007 by military coupe d’etrat and assumed reigns of Pakistan as its President repudiating the Constitution to suit his own dictatorial military government. He legitimatized in a coup and declared a state of emergency in October 1999 and suspended the Constitution and closed the Prime Minister’s office and put Nawaz Sharif in Jail. He asked the Judges of the Supreme Court to take a fresh oath of allegiance to his new military government and remained in office as President from 2001 to 2008.

These instances clearly show that Kelsenian grundnorm during the revolutionary change has to be determined by the political and extra legal expediency in the context of the prevailing situation and changed conditions.

Objectives Of Kelsen’s Pure Theory

Kelsen rejected Austin’s proposal to set up a Superior authority (Sovereign) as a source and he interpreted the pure principle which is necessary to achieve the ordered symmetry in the legal system, so the sources of law can be traced. Kelsen’s pure theory of law almost covers all legal concepts such as legal personality, rights, and duties, private and public laws, etc.

Essential Features Of Kelsen’s Pure Theory

The essential features of Kelsen’s Pure Theory of law are as follows –

• The aim of a theory of law, as of any science, is to reduce chaos and multiplicity to unity.
• Legal theory is science, not volition. It is knowledge of what the law is not of what the law ‘ought to be’.
• The law is normative not a natural science.
• Kelsen’s strict separation of law and morality is an integral part of his pure theory of law.
• It is a formal theory confined to a particular system of positive law as actually in operation.

  Criticism

• Grundnorm is vague and confusing.
• Kelsen also said that the law should be kept free from morality. Whether it is possible to keep the law free of morality? Kelsen insisted on the law to be effective and thus he accepted indirectly morality as a part of effectiveness.
• Kelsen attempted to change the law into a science, a theory that could be understood through logic, but on the other hand, he emphasized the validity of the grundnorm to “assumed” , rather than based on some “logic” .
• From where grundnorm takes its validity.
• Kelsen’s pure theory is without any sociological foundation as it excludes all social facts and needs of the society.

Hans Kelsen gave a huge contribution in answering some basic questions about the law. There are mainly three aspects of Kelsen’s Pure Theory about the law.

The First aspect of Kelsen’s pure theory is theories of law should only be related to law. He excludes other social sciences and morality. Law should be in its pure form and this is the reason he named his theory as Kelsen’s Pure theory of law.

The Second aspect of Kelsen pure theory is that whole system of law is the hierarchy of norms in which the basic norm that is also known as Grundnorm is at the apex level and all the other norms check its validity from the basic norm. if any norm is against or contradictory to the basic norm then that norm should be invalid. Also, he said no one can question the validity of Grundnorm.

The Third aspect of Kelsen’s pure theory is that law norms are different from other sciences, law is a normative science. He differentiates between moral norms and legal norms. He belongs to the Analytical school of jurisprudence but he opposes the command theory of Austin.

[1] 1958 SC Pak 533

[2] 1972 SC Pak 139

This article has been written by Priyesh Kumar Yadav, 4th Year B.A. LL.B (Hons) Student at Shri Ramswaroop Memorial University, Lucknow.

Also Read –  Historical School of Jurisprudence

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The Pure Theory of Law

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and philosopher Hans Kelsen (1881-1973). (See bibliographical note) Kelsen began his long career as a legal theorist at the beginning of the 20 th century. The traditional legal philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social sciences, on the other hand. He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law alone” and this purity serves as its “basic methodological principle.” [PT1, 7] Note that this anti-reductionism is both methodological and substantive. Kelsen firmly believed that if the law is to be considered as a unique normative practice, methodological reductionism should be avoided entirely. But this approach is not only a matter of method. Reductionism should be avoided because the law is a unique phenomenon, quite separate from morality and nature.

1. The Basic Norm

2. the normativity of law, bibliography, other internet resources, related entries.

The law, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will. They are products of deliberate human action. For instance, some people gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are actions and events taking place at a specific time and space. To say that what we have described here is the enactment of a law , is to interpret these actions and events by ascribing a normative significance to them. Kelsen, however, firmly believed in Hume's distinction between ‘is’ and ‘ought’, and in the impossibility of deriving ‘ought’ conclusions from factual premises alone. Thus Kelsen believed that the law, which is comprised of norms or ‘ought’ statements, cannot be reduced to those natural actions and events which give rise to it. The gathering, speaking and raising of hands, in itself, is not the law; legal norms are essentially ‘ought’ statements, and as such, they cannot be deduced from factual premises alone.

How is it possible, then, to ascribe an ‘ought’ to those actions and events which purport to create legal norms? Kelsen's reply is enchantingly simple: we ascribe a legal ought to such norm-creating acts by, ultimately, presupposing it. Since ‘ought’ cannot be derived from ‘is’, and since legal norms are essentially ‘ought’ statements, there must be some kind of an ‘ought’ presupposition at the background, rendering the normativity of law intelligible.

As opposed to moral norms which, according to Kelsen, are typically deduced from other moral norms by syllogism (e.g., from general principles to more particular ones), legal norms are always created by acts of will. Such an act can only create law, however, if it is in accord with another ‘higher’ legal norm that authorizes its creation in that way. And the ‘higher’ legal norm, in turn, is valid only if it has been created in accordance with yet another, even ‘higher’ legal norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will, but is simply presupposed, and this is, what Kelsen called, the Basic Norm. More concretely, Kelsen maintained that in tracing back such a ‘chain of validity’ (to use Raz's terminology), one would reach a point where a ‘first’ historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution.

Kelsen attributed two main explanatory functions to the Basic Norm: it explains both the unity of a legal system and the reasons for the legal validity of norms. [PT2, 193] Apparently, Kelsen believed that these two ideas are very closely related, since he seems to have maintained that the legal validity of a norm and its membership in a given legal system are basically the same thing. Furthermore, Kelsen argued that every two norms which derive their validity from a single Basic Norm necessarily belong to the same legal system and, vice versa , so that all legal norms of a given legal system derive their validity from one Basic Norm. It is widely acknowledged that Kelsen erred in these assumptions about the unity of legal systems. Generally speaking, in spite of the considerable interest in Kelsen's theory of legal systems and their unity that derives from a single Basic Norm, critics have shown that this aspect of Kelsen's theory is refutable. Although it is certainly true that the law always comes in systems, the unity of the system and its separation from other systems is almost never as neat as Kelsen assumed. [see Raz, ‘Kelsen's Theory of the Basic Norm’.]

However, the role of the Basic Norm in explaining the normativity of law is crucially important. The presupposition of the Basic Norm as the condition of validity of legal norms marks Kelsen's theory as ‘pure’, and distinguishes it from other theories in the Legal Positivist tradition. Contemporary legal positivists have traditionally accounted for the normativity of law in terms of social facts: people tend to perceive of the legal norms in their community as valid because, ultimately, there are certain social conventions, or Rules of Recognition in H.L.A. Hart's terminology, that determine who is authorized to make law and how law making is to be done. But this is precisely the kind of reductionism that the Pure Theory strives to deny. Kelsen was convinced that any attempt to ground the law's normativity, namely, its ‘ought’ aspect, is doomed to failure if it is only based on facts, whether those facts are natural or social. Once again, to account for an ‘ought’ conclusion, one needs some ‘ought’ in the premises. Therefore, Kelsen thought, the normativity of law, as a genuine ‘ought’, must, ultimately, be presupposed.

Common wisdom has it that in this kind of reasoning Kelsen self-consciously employs a Kantian Transcendental argument to establish the necessary presupposition of the Basic Norm. Thus the argument takes the following form:

• P is possible only if Q .
• Therefore, Q .

In Kelsen's case, P stands for the fact that legal norms are ‘ought’ statements, and Q is the presupposition of the Basic Norm. [PT2, 202]. Furthermore, commentators have pointed out that just as Kant's epistemology is an attempt to find the middle way between dogmatic Rationalism and skeptical Empiricism, Kelsen's pure theory of law is an attempt to find a middle way between Natural Law's dogmatism, and Positivism's reduction of law to the social sciences. [See Paulson, Introduction] But it is worth keeping in mind that Kelsen's argument about the Basic Norm is an explicitly shallow form of Kantian epistemology. The Kantian categories and modes of perception are not optional; they form a deep, universal, and necessary feature of rational cognition. One should recall that it is Humean skepticism that Kant strove to answer. Kelsen, however, remains Humean through and through, Kantian influences notwithstanding. First, Kelsen was very skeptical about any objectivist moral theory, Kant's included. [PT1, 16; PT2, 63-65] Second, Kelsen does not claim that the presupposition of the Basic Norm is a necessary feature, or category, of rational cognition. The Basic Norm is an ‘ought’ presumption and, as such, optional. It is not necessary for anyone to accept the Basic Norm. The Basic Norm is necessarily presupposed only by those who accept the ‘ought’, namely, the normativity, of the law. Likewise, those who believe in the normativity of a religious order must presuppose a Basic Norm that ‘one ought to obey God's commands’. But in both cases, there is nothing in the nature of things which would compel any particular person to adopt such a normative perspective. Kelsen's argument does not rule out atheism or anarchism. However, even the anarchist, Kelsen maintained, must presuppose the Basic Norm if she is to account for the normativity of law. But again, this presupposition is only an intellectual tool, not a normative commitment, and as the latter, it is entirely optional.

This analogy between law and religion, on which Kelsen often dwells, is more limited than it first appears, however. The normativity of religion, like that of morality, does not depend on the actual obedience of their respective subjects. For those, for example, who presuppose the basic norm of Christianity, the latter would be valid even if there are no other Christians around. But this, as Kelsen explicitly admits, is not the case with law. The validity of a legal system partly, but crucially, depends on its actual practice: “A legal order is regarded as valid, if its norms are by and large effective (that is, actually applied and obeyed).” [PT2, 212] Furthermore, the actual content of the Basic Norm depends on its ‘effectiveness’. As Kelsen repeatedly argued, a successful revolution brings about a radical change in the content of the Basic Norm. Suppose, for example, that in a given legal system the Basic Norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d'etat takes place and a republican government is successfully installed. At this point, Kelsen admits, “one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government.” [PT1, 59].

This is very problematic, however, since it raises the suspicion that Kelsen has violated his own categorical injunction against deriving ‘ought’ from ‘is’. Kelsen was not unaware of the difficulty. In the first edition of the Pure Theory of Law , he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory. Therefore, the changes in the basic norm which stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law. [PT1, 61-62] The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law, and this entails that there is only one Basic Norm in the entire world, namely, the Basic Norm of public international law. Although this solution is repeated in the second edition of the Pure Theory of Law [214-215], Kelsen presented it there with much more hesitation, perhaps just as an option which would make sense. It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and anachronistic. (We should recall that the development of international law is a relatively recent phenomenon in the history of law.)

So we are back to the question of how ‘pure’ Kelsen's theory really is, if it is conceded that the content of the Basic Norm is basically determined by social practice. The answer depends on how we construe the explanatory function of the Basic Norm: Neither Kelsen nor his critics seem to have been careful to distinguish between the role of the Basic Norm in answering the question of how we identify the law as such, and in answering the question of law's normativity . An answer to the question of what counts as law or as law creating acts in a given community cannot be detached from practice, namely, social conventions. The social conventions prevalent in any given community determine, ultimately, what counts as law in that community. (See the Nature of Law) On the other hand, Kelsen is right to insist that social conventions, by themselves, could not explain the ‘ought’ which is inherent in law as a normative system. Such an ‘ought’ cannot be constituted by the conventions. Social conventions can only determine what the practice is, and how one would go about in engaging in it; conventions cannot determine that one ought to engage in the practice. [see Marmor, Positive Law & Objective Values , 25-33] Consider, for example, the analogy of a structured game, like chess. What chess is, and how one should play the game, are determined by its constitutive rules or conventions. Those rules which constitute the game of chess, however, cannot provide anyone with a complete reason to play the game. The normativity of the game is conditional; it depends on a prior reason, or commitment, to play the game. We cannot say, for example, that one “ought to move the bishop diagonally” unless we assume that the agent wants to play chess. The fact that the rules of chess require the players to move the bishop diagonally is not, in itself, a reason for doing so, unless, again, it is assumed that it is chess that one wants to play. Now, it is precisely this kind of assumption that the Basic Norm is there to capture. Just as the normativity of chess could not be explained without presupposing, as it were, that the players want to engage in that particular game, so the normativity of law must be premised on the Basic Norm.

Thus, it would seem that Kelsen's anti-reductionism is only partly successful. The explanatory role of the Basic Norm must be confined to the normativity of law. But in order to explain what counts as law and how law is identified and distinguished from other normative practices, the Basic Norms is not sufficient; one must refer to the social conventions which prevail in the relevant community.

None of this means, however, that Kelsen's account of the normativity of law is unproblematic. There are two main problems that may be worth exploring. First, Kelsen has never made it quite clear whether he maintains that the ‘ought’ which is presupposed in the legal domain is the same kind of ‘ought’ which would be characteristic of morality or, indeed, any other normative domain. Kelsen seems to have faced a dilemma here which would not be easy to resolve. On the one hand, he wanted to avoid the mistake which he attributed to the Natural Law tradition of reducing the normativity of law to moral ‘ought’. Kelsen has repeatedly argued that Natural Law, which would reduce the legal ‘ought’ to moral ‘ought’ fails because it can only achieve an account of the normativity of law at the expense of missing its target: If the only notion of validity is a moral one, we are left with no room for the concept of legal validity. Natural Law, as Kelsen understood it, does not make any allowance for the possibility that a norm is legally valid but morally wrong. Would this imply, then, that the kind of ‘ought’ which is presupposed by the Basic Norm is somehow different from moral ‘ought’? And what would the difference consist in? One should bear in mind that Kelsen thought that the normativity of morality, like that of religion or any other normative domain, is also ‘presupposed’. So here is the dilemma: either Kelsen maintains that the legal ‘ought’ and moral ‘ought’ are two different kinds of ‘ought’ (which, I think, is the stance he adopted in his earlier writings), but then it would be very difficult to explain what the difference consists in, given that both kinds of ‘ought’ are simply presupposed; or else, Kelsen would have to maintain that the moral and legal ‘ought’ are basically the same, in which case, he would be hard pressed to explain how he avoids the same kind of mistake which he attributed to the Natural Law tradition.

Secondly, and perhaps this is part of the reason for the former confusion, Kelsen's account of the normativity of law is seriously impeded by his Humean skepticism about the objectivity of morality, justice, or any other evaluative scheme. The view one gets, especially from Kelsen's later writings, is that there are countless potential normative systems, like morality, law, religion, etc., that one can either accept or not just by presupposing their respective Basic Norms. But without any rational or objective grounding of such evaluative systems, the choice of any Basic Norm remains rather whimsical, devoid of any reason. It is difficult to understand how normativity can really be explained on the basis of such rationally groundless choices.

Kelsen's academic publications span over almost seven decades in which he published dozens of books and hundreds of articles. Only about a third of this vast literature has been translated to English. Kelsen's two most important books on the pure theory of law are the first edition of his Reine Rechtslehre , published in 1934, and recently translated to English under the title Introduction to the Problems of Legal Theory , (Paulson and Paulson trans.) Oxford 2002, and the second edition which Kelsen published in 1960, Pure Theory of Law , (Knight trans.), UC Berkeley press, 1967. The second edition is a considerably extended version of the first edition. These books are abbreviated in the test as PT1 and PT2 respectively. In addition, most of the themes in these two books also appear in Kelsen's General Theory of Law and State , (1945), (Wedberg trans.), Russell & Russell, NY 1961 and What is Justice? , UC Berkeley Press, 1957. Other relevant publications in English include ‘The Pure Theory of Law and Analytical Jurisprudence’, 55 Harvard L. Rev . (1941), 44, ‘Professor Stone and the Pure Theory of Law: A Reply’, (1965), 17 Stanford L. Rev . 1128, and ‘On the Pure Theory of Law’ (1966), 1 Israel L. Rev . 1.

For a complete list of Kelsen's publications which have appeared in English see the Appendix to H. Kelsen, General Theory of Norms (M. Hartney trans.) Oxford, 1991, pp. 440-454.

Other Sources

• Harris, J.W., Legal Philosophies , Butterworths, 1980, chapter 6.
• Hart, H.L.A., The Concept of Law , Oxford 1961, chapter 3.
• –––, ‘Kelsen's Doctrine of the Unity of Law’, in H.E. Kiefer and M.K. Munitz (eds), Ethics and Social Justice , NY, 1970.
• Marmor, A., Objective Law and Positive Values , Oxford 2001, chapter 2.
• Paulson, S., Introduction to Kelsen's Introduction to the Problems of Legal Theory , Clarendon 2002, xvii.
• Raz, J., The Concept of a Legal System , (2 nd ed.) Oxford 1980.
• –––, ‘Kelsen's Theory of the Basic Norm’ in Raz, The Authority of Law , Oxford 1979, 122.
• Tur, R.H. & Twining, W. (eds), Essays on Kelsen , Oxford 1986.
• Kelsen and Hist Circle: The Viennese Years [PDF], by Clemens Jabloner (Vice Director, Klemens-Institut, Vienna), translated by Camilla Nielsen, in European Journal of International Law , Volume 9 (Number 2): 1998, pp. 368-85.

ethics: natural law tradition | Hume, David: moral philosophy | nature of law | nature of law: legal positivism

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Kelsen Revisited: New Essays on the Pure Theory of Law

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• Kelsen Arts and Humanities 100%
• Law Arts and Humanities 100%
• Theory of law Arts and Humanities 100%
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T1 - Kelsen Revisited

T2 - New Essays on the Pure Theory of Law

A2 - Duarte D'Almeida, Luis

A2 - Gardner, John

A2 - Green, Leslie

PY - 2013/8

Y1 - 2013/8

N2 - Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

AB - Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

BT - Kelsen Revisited

PB - Hart Publishing

CY - 9781849464567

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Kelsen Revisited: New Essays on the Pure Theory of Law

Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

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20 The Problem of Legal Validity in Kelsen’s Pure Theory of Law (2005)

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This chapter analyses Kelsen’s theory as presented in Pure Theory of Law . It argues that the expression ‘validity’ is ambiguous in Kelsen’s writings; at least two altogether different concepts characterized by this expression can be distinguished, namely membership and bindingness. The concept of membership is a descriptive concept. The problem of the relation between validity and efficacy is a separate problem. There is no relation between the membership of norms and their efficacy. In defining the concept of membership, the assumption of a basic norm proves to be altogether superfluous. Bindingness can also be interpreted as a purely legal obligation.

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Visualisation of Hans Kelsen’s Pure Theory of Law

• First Online: 19 May 2023

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• Vytautas Cyras 5 &
• Friedrich Lachmayer 6  

Part of the book series: Law, Governance and Technology Series ((LGTS,volume 54))

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Hans Kelsen’s Pure Theory of Law is among the most prominent and influential legal theories. Kelsen’s book (1967) contains neither logical notation nor pictures, only text. In spite of this, our impression is that Kelsen himself had a very clear imagination. We make an attempt to visualise his theoretical models because it is important for legal informatics. Explicit visualisations of the structures of law and their theoretical representations are significant for the development of legal ontologies. Visuals also contribute to legal education and an understanding of the law that is expressed in a non-textual mode. In particular, the legal machinery has a non-textual effect in legal situations.

Based on Čyras and Lachmayer ( 2021 ).

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Here Paulson is using ‘surrogate’ to cover all variations on the theme of vicarious and collective liability, see also his notes 58–59.

Kelsen ( 1967 ), § 4, pp. 3–4 writes: “The external fact whose objective meaning is a legal or illegal act is always an event that can be perceived by the senses […] However, this event as such, as an element of nature, is not an object of legal cognition. What turns this event into a legal or illegal act is not its physical existence […] but the objective meaning resulting from its interpretation. The specifically legal meaning of this act is derived from a “norm” whose content refers to the act; this norm confers legal meaning to the act [...]”

“A positive moral or legal order never constitutes a system of merely coordinate norms, but always one of superordinate and subordinate norms, i.e. a hierarchical structure of norms, whose highest level is the constitution whose validity is founded on the presupposed Basic Norm, and whose lowest level is made of the individual norms decreeing particular concrete behaviour to be obligatory” (Kelsen 1991 ), § 59.I.F, p. 258.

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Čyras V, Lachmayer F (2021) From Kelsen’s Pure Theory of Law to Yoshino’s Logical Jurisprudence. In: Yoshino H, Villa Rosas G (eds) Law and logic – making legal science a genuine science. Proceedings of the special workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Archiv für Rechts- und Sozialphilosophie – Beihefte (ARSP-B), Band 166. Franz Steiner Verlag, Stuttgart, pp 29–63

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Faculty of Mathematics and Informatics, Institute of Computer Science, Vilnius University, Vilnius, Lithuania

Vytautas Cyras

University of Innsbruck, Innsbruck, Austria

Friedrich Lachmayer

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Cyras, V., Lachmayer, F. (2023). Visualisation of Hans Kelsen’s Pure Theory of Law. In: Essays on the Visualisation of Legal Informatics. Law, Governance and Technology Series, vol 54. Springer, Cham. https://doi.org/10.1007/978-3-031-27957-7_8

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