Hans Kelsen - Pure Theory of Law

Question 1

What is Hans Kelsen’s work associated with?

Answer 1

A strict interpretation of legal positivism

Question 2

What did he say the law was made up of?

Answer 2

Norms

Question 3

What did he think it meant to say that the law consisted of norms?

Answer 3

The law should be approached distinctly and is, of itself, a legal science.

Question 4

What theory did he put forward?

Answer 4

Pure theory of law

Question 5

What did this pure theory of law not depend on?

Answer 5

Moral or political considerations.

Question 6

Who criticised Kelsen’s pure theory?

Answer 6

HLA Hart and Raz

Question 7

What does the essay discuss?

Answer 7

Kelsen’s pure theory of law and his normative view of the law.

Question 8

Who will his theories be contrasted with?

Answer 8

HLA Hart

Question 9

How did Kelsen’s pure theory of law emerge?

Answer 9

From his dissatisfaction with the other prominent legal theories of the 20th century.

Question 10

How was he dissatisfied with the other theories?

Answer 10

1. He rejected the view that the law depended on moral and political ideals
2. Also dissatisfied with the reductionist view of the law which sought to reduce normative claims to non-normative patterns of conduct.

Question 11

What did Kelsen’s theory focus on instead?

Answer 11

On the law and “on the law alone”

Question 12

What distinction is Kelsen’s theory on the normativity of law based on?

Answer 12

Ought/Is (accepting a Kantian approach)

Question 13

What does Kelsen say concerning the ‘ought/is’ distinction?

Answer 13

A legal norm is what ought to happen, rather than what will happen.

Question 14

How are legal norms distinct from moral norms?

Answer 14

1. They are created by acts of will.
2. Where a moral norm may be true or false, a legal norm is either valid or invalid.

Question 15

What does Kelsen reject in terms of natural law?

Answer 15

Theories that aim to connect law with morality.

Question 16

What does Kelsen feel laws are determined by?

Answer 16

Social facts alone.

Question 17

What did he say about natural law and the ‘ought/is’ distinction?

Answer 17

To derive the legal order from natural law to blur the ‘ought/is’ distinction.

Question 18

What could the imposition of morals into the legal order lead to?

Answer 18

Destabilisation of the legal order.

Question 19

What is Kelsen’s ‘Grundnorm’ theory?

Answer 19

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).

Question 20

What form does his ‘Grundnorm’ theory establish?

Answer 20

It establishes a hierarchy of norms

Question 21

What is at the top of the hierarchy of norms?

Answer 21

A constitution. Not only is it a constitution, but it is also the earliest historical constitution.

Question 22

What is a ‘Grundnorm’/basic norm?

Answer 22

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.

Question 23

Is Kelsen’s Grundnorm theory sound?

Answer 23

Kelsen’s basic norm theory, while compelling, lacks some substance.

Question 24

What does Raz (among others) say about Kelsen’s Grundnorm theory?

Answer 24

Raz and others highlight the deliberate ambiguity of Kelsen’s Grundnorm. It appears to exist without any understanding of how it originated.

Question 25

According to the basic norm theory, what does 'valid' mean?

Answer 25

Ought to be obeyed.

Question 26

What does Hart say about validity?

Answer 26

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.

Question 27

What is the rule of recognition?

Answer 27

The ultimate rule used in the legal order in order to determine whether a norm is legally valid and part of the legal system.

Question 28

Is the rule of recognition as rigid as Kelsen's pure theory?

Answer 28

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.

Question 29

What does the flexibility of the rule of recognition allow for?

Answer 29

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.

Question 30

Does Kelsen hold a monistic view of the law?

Answer 30

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.

Question 31

What does Kelsen's monistic view of the law remove?

Answer 31

It removes any distinction between a law which imposes a tax and a law that imposes a criminal sanction.

Question 32

Does Hart hold a monistic view of the law?

Answer 32

Yes, but he also acknowledges that there are various levels of rules and multiple sources of legal norms.

Question 33

How does Hart demonstrate the various levels of laws?

Answer 33

Primary and secondary rules. Primary rules: confer rights, duties, and obligations. Secondary rules: allow laws to be created and amended.

Question 34

Does Kelsen take a morally neutral stance on the law?

Answer 34

Yes.

Question 35

Does Kelsen's theory look more at the form or the content?

Answer 35

Form

Question 36

What does Hart say about Kelsen's approach to law and morality?

Answer 36

He regards the approach as being too analytical, at the price of distorting the law's diverse functions.

Question 37

Does Hart separate Law and Morality?

Answer 37

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.

Question 38

Why is Hart's approach to law and morality more dynamic?

Answer 38

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.

Question 39

Do you think Kelsen's pure theory of law is flawed?

Answer 39

Yes

Question 40

[Critique] Reason one

Answer 40

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.

Question 41

[Critique] Reason two

Answer 41

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.

Question 42

[Critique] Reason three

Answer 42

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.

Question 43

[Critique] Reason Four

Answer 43

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.