The pure theory of law is a comprehensive legal theory that adheres to the tenets of legal positivism. It uses structural analysis as a method and aims to understand the law as it is, not as it ought to be. More specifically, it provides us with a set of fundamental legal concepts—such as "legal system," "norm," "right," "duty," "sanction," and "imputation"—that we can use in our efforts to understand and articulate the law in a way that is consistent with science. One could argue that the purpose of pure theory is to develop the theoretical frameworks of many legal fields, such as constitutional law, contract law, legal history, comparative law, and so forth.

Prominent Austrian jurist and philosopher Hans Kelsen introduced the idea of the Pure Theory of Law. Kelsen started his extensive career as a legal scholar at the turn of the 20th century. Kelsen claimed that attempts to subordinate the law to the scientific or social sciences and political ideology and moralizing were the two things that terribly polluted traditional legal systems. He demonstrated that both of these reductionist endeavors were seriously flawed. Rather, Kelsen advocated for a "pure" legal philosophy that shied away from reductionism.

According to Kelsen's reasoning, natural law does not require explanation when it incorporates elements of politics, sociology, or other relevant considerations. He believed that in order to comprehend pure or natural law, all capacity for morality, sociology, or other factors should be eliminated. The theory is therefore referred to as the Pure Theory of Law.

A short note on Hans Kelsen : the propounder of Pure Theory of Law

Born in Prague in 1881, Hans Kelsen taught law at Vienna University. From 1920 until 1930, he presided over cases in Austria's Supreme Constitutional Court as a judge. After that, he moved to England before arriving in the US in 1940, when he was hired as a law professor at many US universities. Last but not least, he established his groundbreaking Pure Theory of Law in the Twentieth Century while serving as an emeritus professor of political science at the University of California. This theory garnered international notice. Numerous volumes, such as the Austrian Constitution (1920), The Pure Theory of Law (1934) updated (1960), Principle of International Law (1952), What is Justice (1957), and others, are authored by Kelsen.

Kelsen has steadfastly rejected jurists’ efforts to widen the scope of jurisprudence to include the social sciences, and he has steadfastly campaigned for the separation of law from metaphysics, politics, and sociology.

Kelsen is noted for his most thorough positive law development. His pure law theory is founded on logic. It is normative in character and free of the influence of other knowledge of the world, particularly that of the social sciences. In the field of legal philosophy, Hans Kelsen’s views remain a significant point of reference. Kelsen’s impact may still be felt in fields including general theory of law, constitutional law, international law, philosophy of law, justice concerns, sociology, and politics.

Pure Theory of Law

A legal theory ought to be "pure," that is, devoid of any kind of extralegal influences. Consequently, sociology, philosophy, ideology, psychology, politics, ethics, and other extra-legal elements were all excluded from Hans Kelsen's theory, which he supported and believed in. Kelsen rapidly came to the conclusion that law is not a science; rather, it is a human science. According to Kelsen, the pure theory of law gets its name from its exclusive description of the law and effort to omit anything that isn't strictly legal from its purview. Its aim is to purge legal science of extraneous elements.

Two factors, according to Kelsen, support the purity of his hypothesis. It makes a distinction between law and fact, for instance. It also makes a distinction between morality and the law. The theory of precedents, which maintains that legal concepts develop as a result of cases decided, is in conflict with Kelsen's beliefs.

The reality of actual legal systems are not reflected in Kelsen's pure legal theory. With Kelsen's Pure Theory of Law, only elements that are purely legal would remain once all impurities and external elements were eliminated. Legally speaking, the law is a norm rather than a fact.

A "pure theory of law," in Kelsen's words, is one that ignores everything that does not formally fall under the purview of law and is only focused on the area of knowledge that deals with law.

Grundnorm

The pyramidal structure of Kelsen's pure theory of law is predicated on the grundnorm, which serves as the fundamental norm. The German word "grundnorm" translates to "fundamental norm." "The presumed ultimate rule by which the norms of this order are constituted and annulled, and their validity is received or lost," is how he describes it. Further norms that are derived from the grundnorm are verified and their content established. However, Kelsen declined to answer the question, stating that it was metaphysical, and did not address where it obtains its legitimacy. Kelsen proposed that the Grundnorm is not a hypothesis, but rather a work of fiction.

Unlike some of the other norms, according to Kelsen, the basic norm cannot be clarified by making reference to one or more additional validating laws. Alternatively, it might get its legitimacy from the fact that a sizable portion of the political unit has recognized, accepted, and acknowledged it. Because of this, it is impossible to divorce the law from the authority and organizational framework of the state.

Since this structure is normative, before sanctions are activated and applied, other forces like judges, prosecutors, and officials must complete their portions of the normative structure. This is because the concept of sanctions, which has a special place in Austinian doctrine as the component that gives law its functionality, depends on them.

A legal system started with the Grundnorm and developed from there, becoming increasingly specialized and sophisticated over time. This is a dynamic circumstance. At the top of the pyramid lies the self-contained grundnorm. Subordinate standards in a hierarchical organization are governed by norms above them. The normative hierarchy advances from bottom to top before coming to an end at the grundnorm.

Hierarchy of Norms

According to Kelsen, a legal system consists of norms stacked one above the other in a hierarchical order, with each norm deriving its legitimacy from the norm above it. The hierarchy, which resembles a pyramid, represents the legal system. Consequently, the ultimate standard, referred to as the Grund Norm or fundamental standard, arises and becomes the basis for all subsequent standards. The core of Kelsen's philosophy is the Grund norm. Any norm's legality or validity can be ascertained using the Grund norm. It is impossible to evaluate the Grund norm's validity objectively.

Sanctions

Kelsen emphasizes the coercive nature of the law through punishments. Austin interprets sanction as a directive from the Sovereign, but Kelsen rejects this interpretation since it introduces a psychological component into a legal system. Consequently, he supports the Grundnorm, which lends legitimacy to laws. Each legal system gains legitimacy from its authoritative nature. The Grundnorm is applicable to all other laws due to its sanctioning authority. According to Kelsen's analysis of the sanctioned view of the law, legal norms are expressed in terms of the requirement that the courts administer a penalty, either civil or criminal, to those who disobey a particular ban.

Conclusion
By making us think about the dichotomy between fact and norm, as well as the relationship between law and its normative influence, Kelsen provided legal theory a new dimension. In some respects, Kelsen's internally consistent model of the legal system reflects the instinctive thinking of legislators and attorneys. Tracing a law's legitimacy all the way back to the constitution is typical legal reasoning. It is likewise incorrect to believe that a body of legal laws is an internally consistent body of law. In contrast to his predecessors, Kelsen recognized as law both the world community and the laws of primitive societies. The concepts and internal consistency of Kelsen's theories are regularly criticized. However, he has penned the century's most insightful description of the legal system.

Written By: Akanksha