Hans Kelsen - Pure Theory of Law Flashcards
What is Hans Kelsen’s work associated with?
A strict interpretation of legal positivism
What did he say the law was made up of?
Norms
What did he think it meant to say that the law consisted of norms?
The law should be approached distinctly and is, of itself, a legal science.
What theory did he put forward?
Pure theory of law
What did this pure theory of law not depend on?
Moral or political considerations.
Who criticised Kelsen’s pure theory?
HLA Hart and Raz
What does the essay discuss?
Kelsen’s pure theory of law and his normative view of the law.
Who will his theories be contrasted with?
HLA Hart
How did Kelsen’s pure theory of law emerge?
From his dissatisfaction with the other prominent legal theories of the 20th century.
How was he dissatisfied with the other theories?
- He rejected the view that the law depended on moral and political ideals
- Also dissatisfied with the reductionist view of the law which sought to reduce normative claims to non-normative patterns of conduct.
What did Kelsen’s theory focus on instead?
On the law and “on the law alone”
What distinction is Kelsen’s theory on the normativity of law based on?
Ought/Is (accepting a Kantian approach)
What does Kelsen say concerning the ‘ought/is’ distinction?
A legal norm is what ought to happen, rather than what will happen.
How are legal norms distinct from moral norms?
- They are created by acts of will.
- Where a moral norm may be true or false, a legal norm is either valid or invalid.
What does Kelsen reject in terms of natural law?
Theories that aim to connect law with morality.
What does Kelsen feel laws are determined by?
Social facts alone.
What did he say about natural law and the ‘ought/is’ distinction?
To derive the legal order from natural law to blur the ‘ought/is’ distinction.
What could the imposition of morals into the legal order lead to?
Destabilisation of the legal order.
What is Kelsen’s ‘Grundnorm’ theory?
His theory sets out that whether or not a norm is valid stems from its validation by a higher norm (Raz refers to this as a chain of validity).
What form does his ‘Grundnorm’ theory establish?
It establishes a hierarchy of norms
What is at the top of the hierarchy of norms?
A constitution. Not only is it a constitution, but it is also the earliest historical constitution.
What is a ‘Grundnorm’/basic norm?
In order to give validity to this hierarchy, Kelsen put forward a basic norm theory. The highest form is no longer an act of will but is one which is presupposed to be valid. This presupposition, in turn, gives validity to the Constitution.
Is Kelsen’s Grundnorm theory sound?
Kelsen’s basic norm theory, while compelling, lacks some substance.
What does Raz (among others) say about Kelsen’s Grundnorm theory?
Raz and others highlight the deliberate ambiguity of Kelsen’s Grundnorm. It appears to exist without any understanding of how it originated.
According to the basic norm theory, what does ‘valid’ mean?
Ought to be obeyed.
What does Hart say about validity?
A judgment that a rule is valid is not a judgment that it ought to be obeyed. Instead, it merely satisfies the criteria provided by his rule of recognition.
What is the rule of recognition?
The ultimate rule used in the legal order in order to determine whether a norm is legally valid and part of the legal system.
Is the rule of recognition as rigid as Kelsen’s pure theory?
The rule of recognition is more flexible, as it can take the form of a constitution, a customary practice, or other conventions within the legal system.
What does the flexibility of the rule of recognition allow for?
It allows legal professionals to use the rule to guide their decisions and to decide which laws should be considered binding in the event of conflict and ambiguity.
Does Kelsen hold a monistic view of the law?
Yes. In his opinion, there is one unified legal order. Those with law-making power only do so as the power has been established by way of a legal norm.
What does Kelsen’s monistic view of the law remove?
It removes any distinction between a law which imposes a tax and a law that imposes a criminal sanction.
Does Hart hold a monistic view of the law?
Yes, but he also acknowledges that there are various levels of rules and multiple sources of legal norms.
How does Hart demonstrate the various levels of laws?
Primary and secondary rules.
Primary rules: confer rights, duties, and obligations.
Secondary rules: allow laws to be created and amended.
Does Kelsen take a morally neutral stance on the law?
Yes.
Does Kelsen’s theory look more at the form or the content?
Form
What does Hart say about Kelsen’s approach to law and morality?
He regards the approach as being too analytical, at the price of distorting the law’s diverse functions.
Does Hart separate Law and Morality?
He does, but he believes that legal systems consist of rules that are necessary for human survival and that human nature is essential to rule-making.
Why is Hart’s approach to law and morality more dynamic?
It allows for the evolving nature of law in society, without basing his views on justice or the common good, but by accepting that moral principles may influence the development of legal norms.
Do you think Kelsen’s pure theory of law is flawed?
Yes
[Critique] Reason one
The basic norm was devised in order to give legitimacy to his idea of the normativity of law. Yet, in doing so, his solution requires a belief in a higher norm of which there is no basis or proof.
[Critique] Reason two
At the same time, Kelsen rejects any convergence between religious norms, legal norms, and moral norms. This is despite the fact that all three could be assigned to a similar hierarchy of which there is no presupposed norm.
[Critique] Reason three
Removes any distinction between the State and judiciary, as the State is only given legitimacy by way of the Grundnorm, and other norms are considered to be on an equal footing. If his theory is true, there is no need for the separation of powers doctrine.
[Critique] Reason Four
Kelsen’s theory about sanctions is also flawed. While there is merit to the argument that an obligation without a sanction is ineffective, Kelsen believes such a law to be invalid.
