Pure Theory of Law

"Pure Theory of Law" (1934) is a book by legal theorist Hans Kelsen.

The name is actually a misnomer – it should probably read "Theory of Pure Law". By "pure", Kelsen meant that all elements impure or extraneous to law had to be split off, to leave a remnant of material which is essentially legal. Accordingly, all natural law, moral, religious, social, and other accretions that are not strictly law had to be eliminated. All that is except for Peace which is something good we should all strive towards and equality of all people. This type of positive law approach is therefore in the tradition of John Austin.

At the same time, Kelsen believed that law was a human construct and a power system. His method attempted to expose the logical structure of law and enable him to investigate where the authority or validity of law lay.

According to Kelsen, most concrete applications of legal rules (that is to say where legal rules apply to specific factual situations) derive their authority from less specific and therefore more general legal rules. Theoretically, this investigative process can be extended backwards until the most fundamental, general and authoritative legal rule or standard (or "norm" as Kelsen called rules) is reached. Following from this, the logical structure of law can be likened to a pyramid with the most fundamental and authoritative norm (the "Grundnorm") at the top and the most particular norms (those which applied to particular concrete situations) at the base. Kelsen called the passage from general to particular "concretization". The "Grundnorm" is inherently stable but may change over time. There is a question over their status: do such things really exist at all or are they purely hypothetical?

Because a law is normative, it must be applied with causal rigidity. The system is one of power and this means that norms are imposed coercively. At its most concrete, norms are directions addressed to officials whereby they should enforce a norm using coercion upon transgressors. By the means of citizens following rules and officials punishing them where they fail to do so, citizens appropriate the various norms as standards of behaviour. The norms thereby acquire efficacy and are by and large observed.

Other legal theorists have argued that Kelsen's view is incomplete. While having logical coherence, causal efficacy and embodying a power structure, Kelsen's system has no regard for the actual social setting of the law. Nor does it explain how people come to feel obligated to obey legal rules. Nor are all laws of this coercive nature. One of the best-known criticisms of Kelsen is by H. L. A. Hart in his book "The Concept of Law".

ee also

*Philosophy of law
*Legal positivism
*Natural law

External links

* [http://plato.stanford.edu/entries/lawphil-theory/#Bib Stanford Encyclopedia of Philosophy Entry - Pure Theory of Law]