Kelsen Notes

Notes: Hans Kelsen: Pure Theory of Law: According to Hans Kelsen, the Pure Theory of Law is a theory of positive law. -This law is only concerned with the accurate definition of law. As such he only focuses or attempts to answer what is law and not what law oughts to be. AS he believes that what ought to be is a science (jurisprudence) and not politics of law. Pure Theory of law means that it is concerned with that part of knowledge which deals with law, excluding everything that does not strictly belong to the subjectmatter of law. That is he wish to free the science of law from any foreign elements. *Some supporters of Kelsen argue for the scientific character of his approach on the ground that his theory consists of generalisations based on juridical experience. The theory is therefore scientific because empirical and pure because it disregards value-judgments, in common with all the sciences. He also felt that the real science of law is lost in the process of thinking and in enhancing its scientific status by such conjunction with other discipline. Thus, in order to understand Kelsen’s Pure Theory of Law, we should be able to understand Kelsen’s concern with political and social ideology, and with his pluralist conception of knowledge; his quest for purity arose from both methodological and political concerns. Kelsen’s Social and Political Agenda: Kelsen argues bureaucracy is essential to the modern state, but we should see it for what it is: an empty structure of necessity, and strip the organisational form of the state of any mystical significance or claims to historical destiny. –According to Morrison. In Kelsen’s hands the states becomes a legal order, but this is neither a legal order which automatically fulfils some functionality determined by the natural order of things, nor it is assumed to embody our hopes and yearnings. Therefore, to understand law in its pure structure we must strip law of its expressive dressings where law is a simple structure of coercion, a hierarchically organised system of (non-moral) norms laying out the conditions by which agents of the state are entitled to enforce sanctions. AS such, Kelsen’s attempts in saving Humanism in the face of pressure will include 1) To recognise the essential freedom of man. -Kelsen argues that social sciences once took as their subject matter a free image of man. Which definitely reductionist methodology was imported from the natural sciences as positivism developed. (Maybe previously man is only taken to be seen as man in its nature state, which draws a lot of flaws that the positivist law theory derived from.)

Therefore, man must be recognised as something more than what the positivist empirical sciences appear to reduce them.) More than man in its natural state *I guess* The result of the positivist views on man is that it weakens our ability to understand the human condition. Kelsen strives to preserve the special status of human existence by arguing we must rigorously separate nature and society. We face mystery and relativism because we are not able to look at the reality and totality. It is humanity that is real subject matter and not nature. Hence we cannot apply the same procedures to study man as we do in natural sciences 2) To strip law of the dangers of the expressive tradition -For Kelsen expressive reading was being co-joined to an ideology of historical destiny and historical expressionism. -Legal positivism gave us the idea of law as a product of human deliberation or power, is open to being interpreted as if it implied that right must be identified with the legal order, that is, with the rules laid down by laws, customs and jurisprudence, and with the institution being established in the course of history -thus legal positivism appeared to instruct the judges that they could not resist commands of the legal order provided that the commanding authority had the valid power to execute its orders For Kelsen, the pure theory was a radically realistic theory of law, it asserted that legal rules have been made by humans; they are made and not discovered by some structure of reason founded upon historical destiny. Mankind makes these laws, these structures of coercive power, these allocations of rights and duties, for social purposes, for there to be justice in the world , but their existence is no guarantee that any legal order is just. Therefore we must sharply distinguish the procedure.

Kelsen’s pure theory is a formalist answer to the problem of constructing social structure in a pluralist society. How can we establish legitimacy for law, which ensures that our jurisprudential does not overstep its capabilities and create new illusions? Kelsen solution to these questions is to adopt a formalist procedure, where to resolve epistemological uncertainty, to confront the error in the system of truth, procedure is needed. *If only there is a specific procedure, it is presumed that there is last resort of any act, and in regards to this statement, there is no judicial error, no illegality on the part of state. (Stealing the punishment would be imprisonment. Only then there is a clear end to such law. (Concretization: Process of procedures)

Truth therefore, is internal to the set of procedures determining it. Legal guilt or innocence, lies in the correct procedure having complied with. The aim of procedure is to establish truth, but absolute truth can never be reached. Also, according to Kelsen, pure legal theory should not justify anything, as opposed to Austin who seeks to justify defence to political economy and defence of private property. The Material for interpretation is found in the legal system’s notion of legal validity -legal norms received their validity from higher and more general norm until we reached to the most basic norm called the grundnorm, which imparts validity to the whole legal order. -It is also the hierarchy of norms as a hierarchy of directions to apply for sanctions. The grundnorm or basic norm is a presupposition of thought rather than empirical event or being. *Reason and validity of such laws. To make sense of legal order we must presuppose that every legal order has a basic norm. In the case of some legal orders, we may trace our chain back to a constitution and find that it has been made in accordance with a yet earlier constitution, but ultimately there will be appoint in which we cant go. It is not the first constitution which serves as the basis of validity but a more basic norm does. The basic norm is that acts ought to be done in accordance with the historically first constitution and is not the fact of the first constitution. Even the constitution itself cannot be the basic norm as it is factual document or set of understandings, rather than a norm. Instead the basic norm is “ acts ought to be done in accordance with the constitution. There is a presupposition or extra lega Validity and Efficacy of Basic Norm: Kelsen says that basic norm is efficacious. However, it is important to note that you cant have validity without efficacy, but you can have efficacy without validity. Thus effectiveness is not sufficient condition for validity of a legal order, it is only a necessary condition. The Uniqueness of the basic norm is that it ensures all norms that it validates does not contradict one another. The basic norm unifies and gives meaning to a set of contradictory norms. If it appears to invalidate one another, then one must be invalid. The old law will lose its validity if the later law is valid. (This explains the operation of repealing laws.)

Kelsen’ Theory Explain importance of basic norm.

What is basic norms: Juristic consciousness: analyse the juris. The legal scientist who finds the jurisctic consciousness (norms.) Validity of legal norms. Primary and legal norms Discover delicts Critics: Grundnorm is discovered by jurist, so what is the efficacy of such norm. Only depends on one person. The critic to kelsen, when does the grundnorm change.