Kelsen’s Pure Theory of Law is a fundamental concept in legal philosophy that describes law as a self-contained system of norms, separate from morality, politics, and social influences. Developed by Hans Kelsen, an Austrian jurist and philosopher, this theory belongs to legal positivism, which means that law should be analyzed as it is, without being influenced by ethics or political ideology.
Kelsen argued that law is a scientific system of rules that should be studied objectively. Unlike natural law theories, which link law with justice, Kelsen believed that law gains validity only from its structure and hierarchy, not from morality. His theory introduced the Grundnorm (Basic Norm), the highest legal principle from which all other laws derive their authority.
This article will explain Kelsen’s Pure Theory of Law, its principles, legal hierarchy, criticisms, and practical applications in modern legal systems.
What is Kelsen’s Pure Theory of Law?
Kelsen’s Pure Theory of Law is a normative legal theory that focuses on law’s internal logic and validity, rather than its social or moral effects. It views law as a hierarchical system of norms, where each legal rule derives authority from a higher rule, up to the Grundnorm (Basic Norm).
Key Features of Kelsen’s Pure Theory of Law
- Law is a System of Norms – Law consists of rules (norms) that regulate human behavior.
- Independent of Morality – A law is valid if it follows legal procedures, even if it is unjust.
- Hierarchy of Laws – Laws are arranged in a hierarchical structure, with lower laws depending on higher laws.
- Focus on Legal Validity – The theory studies what law is, not what law should be.
Kelsen’s theory helps in understanding how laws are structured and applied, without mixing legal analysis with moral or social considerations.
The Grundnorm (Basic Norm) and the Hierarchy of Laws
A central concept in Kelsen’s theory is the Grundnorm (Basic Norm), which is the ultimate source of authority in a legal system.
Hierarchy of Norms in Kelsen’s Theory
Kelsen described law as a structured hierarchy, where each legal rule derives its authority from a higher rule:
- Grundnorm (Basic Norm) – The foundation of the legal system.
- Constitution – The highest legal document in a country.
- Legislation (Statutes & Acts) – Laws made by the legislature.
- Judicial Decisions – Court rulings that interpret laws.
- Administrative Regulations – Rules made by government agencies.
- Individual Legal Acts – Contracts, judicial orders, and licenses.
For example, in India, the Constitution is the Grundnorm, meaning that all laws must conform to it.
Core Principles of Kelsen’s Pure Theory of Law
1. Law as a Normative Science
Kelsen viewed law as a science of norms, meaning that legal rules should be studied using logical and objective methods, without involving morality or politics.
2. Separation of Law and Morality
One of the most important aspects of Kelsen’s theory is the strict separation between law and morality:
- A law is valid if it follows legal procedures, even if it is unfair.
- Justice is a subjective concept, so legal validity should not depend on moral values.
For example, the death penalty is legal in some countries and illegal in others. Kelsen argued that its legality should be judged based on legal rules, not ethical opinions.
3. Legal Positivism
Kelsen’s theory follows legal positivism, meaning that:
- Law is valid only if it follows legal procedures, regardless of morality.
- Judges must apply the law as written, not interpret it based on ethical considerations.
This contrasts with natural law theory, which argues that laws should be based on justice and moral principles.
4. No Connection Between Law and Politics
Kelsen argued that law should not be influenced by politics. Even though political authorities create laws, the validity of laws should be determined through legal procedures, not political decisions.
Criticism of Kelsen’s Pure Theory of Law
Although Kelsen’s Pure Theory of Law is highly influential, it has faced several criticisms:
1. Ignores Morality and Justice
Critics argue that Kelsen’s theory completely separates law from morality, which is unrealistic because most legal systems incorporate ethical principles.
2. The Grundnorm is Too Abstract
The Grundnorm is an assumed concept rather than a proven fact, making it a weak foundation for legal systems.
3. No Explanation for Unjust Laws
Kelsen’s theory suggests that even unjust laws are valid if created through proper procedures, which critics argue legitimizes oppressive regimes.
4. Overlooks the Role of Judges in Law-Making
Kelsen’s theory assumes that judges simply apply existing legal rules without creating new ones. However, in reality, judges often interpret laws and set legal precedents that shape the legal system. Courts in many countries, especially common law systems, play a significant role in shaping legal principles through case law.
For example, in India and the United States, Supreme Court rulings have created new legal doctrines, which shows that the judiciary is not just an enforcer of existing laws but also a creator of new legal principles.
5. Does Not Address Changing Legal Norms
Kelsen’s Pure Theory of Law does not fully explain how legal norms evolve over time. In reality, laws frequently change due to social, political, and economic factors. Critics argue that law is not a fixed hierarchy, as Kelsen suggests, but a dynamic system that adapts to societal needs.
6. Lack of Practical Application
Although Kelsen’s theory is valuable in understanding the structure of law, it has limited practical use in daily legal practice. Lawyers and judges deal with real-life disputes, where moral, political, and social considerations often influence legal decisions.
Case Laws and Practical Applications of Kelsen’s Pure Theory of Law
Although Kelsen’s theory has faced criticism, it has played an important role in shaping legal systems. Several landmark cases and legal principles reflect his ideas.
1. Kesavananda Bharati v. State of Kerala (1973, India)
- The Supreme Court of India ruled that no law can violate the “Basic Structure” of the Constitution.
- This follows Kelsen’s hierarchy of norms, where the Constitution (Grundnorm) is the highest legal authority.
2. Marbury v. Madison (1803, USA)
- The U.S. Supreme Court established the principle of judicial review, allowing courts to strike down unconstitutional laws.
- This aligns with Kelsen’s theory that higher norms (Constitution) control lower norms (statutes and regulations).
3. Nuremberg Trials (1945-1946)
- Nazi officials argued that they were following valid laws under Hitler’s government.
- The international tribunal rejected this, stating that laws cannot be entirely separate from morality, which contradicts Kelsen’s view.
4. Golaknath v. State of Punjab (1967, India)
- The court ruled that constitutional amendments must follow the hierarchy of norms, supporting Kelsen’s concept that laws must be derived from a higher legal authority.
These cases show how Kelsen’s theory influences constitutional interpretation, judicial review, and the hierarchical structure of legal norms.
Relevance of Kelsen’s Pure Theory of Law Today
Despite criticism, Kelsen’s Pure Theory of Law remains highly relevant in legal studies and practice.
1. Used in Constitutional Law
Many modern legal systems, including those in India, the USA, and the UK, follow a hierarchical structure of laws, where constitutional law is the highest authority.
2. Influence on International Law
Kelsen’s work influenced the creation of the United Nations legal system. His theory supports the idea that international law functions as a structured system of norms.
3. Legal Positivism in Modern Courts
Courts in various countries follow Kelsen’s legal positivist approach, where laws are applied based on their validity, not morality.
For example, in many Supreme Court rulings, judges decide cases based on the Constitution and statutes, not moral beliefs. This reflects Kelsen’s focus on legal structure rather than ethical considerations.
Comparison with Other Legal Theories
1. Kelsen vs. Natural Law Theory
| Feature | Kelsen’s Pure Theory | Natural Law Theory |
|---|---|---|
| Law and Morality | Completely separate | Law must reflect moral values |
| Validity of Law | Based on legal structure | Based on moral and ethical principles |
| Judicial Role | Apply laws as they are | Interpret laws based on justice |
Kelsen’s theory removes morality from law, while natural law theorists argue that laws must align with moral principles.
2. Kelsen vs. H.L.A. Hart’s Theory of Law
H.L.A. Hart, another famous legal positivist, criticized Kelsen for being too rigid. Hart introduced the concept of “primary and secondary rules”, which explains how legal rules evolve over time.
While Kelsen focused on the hierarchy of norms, Hart argued that law is more flexible and changes based on social practices.
Strengths and Weaknesses of Kelsen’s Pure Theory of Law
Strengths
✅ Provides a clear, logical structure for understanding laws.
✅ Helps explain how laws derive their validity from higher legal norms.
✅ Useful in constitutional and international law.
Weaknesses
❌ Ignores the role of morality and social influences in law.
❌ Does not explain how laws change over time.
❌ Judges do more than apply laws; they interpret and develop legal principles.
Conclusion
Hans Kelsen’s Pure Theory of Law is one of the most significant contributions to legal philosophy. His theory provides a scientific and objective method for analyzing law as a hierarchical system of norms, free from morality and political influences.
However, critics argue that law cannot be completely separated from ethics and society. Courts and lawmakers often consider justice, fairness, and social needs when applying laws.
Despite its limitations, Kelsen’s theory remains influential in constitutional law, international law, and legal positivism, making it a cornerstone of modern legal thought.