Kelsen Flashcards
What is Kelsen’s contribution to Legal Positivism?
Kelsen conceptualised his pure theory of law that was meant to be a scheme of interpretation to positive law.
Why did he term his theory to be pure
To be pure because its sole defined purpose is to understand positive law and its application. Pure theory deals with the epistemology (what law is) of positive law and develops tools in order to understand it, as well as the ontological aspect of determining what it applies to and is connected to (the sovereign and its command).
It is also pure as it is studied in its ‘pristine’ domain without any application of external studies. Traditional study of law was mixed with an analysis of psychology, sociology and theology. This approach delimits the relevance of such disciplines and examines law as a standalone entity.
Reconciliation of the subjective and objective
There are two operations to law: One, the subjective, deals with the human conduct while the objective deals with the meaning conferred upon the act by the law. It is only when these two manifestations are reconciled and mean the same thing that an act becomes legal. For example, if a secret society resolves to impose the death penalty on another person, it is subjectively a legal act according to them, but is in objective violation of the offence of murder. Therefore, this act is not legal.
Where does kelson differ from Austin?
Unlike Austin, kelson doesn’t hold law to be a monolithic entity. Instead, he applies the conception of a grundnorm. He holds that law functions due to the characterisation and application of what he calls norms. Certain inferior norms are only valid because they are valid in connection to a superior norm. The most superior of these norms, called the grundnorm, has its validity presupposed.
What is a norm
Something that ought to happen (conditions) + Something that ought to be (Legal outcome)
if conditions of marriage under HMA are met then it is legally a valid marriage
Static vs. Dynamic norms
Kelsen holds that there exist two different types of norms on the basis of their value apparent. For example, certain norms like when the Bible says thou shalt not kill are followed because they have a value apparent and it is clear why such norms exist.
For dynamic norms, such apparent values don’t exist and their values are determined by their adherence to superior norms. The grundnorm for example does not have a value apparent, its validity is presupposed for the existence of all norms that are inferior to it.
Kelsen’s principle of legitimacy
For kelsen, the legitimacy of law is not determined by its effectiveness, but by two defined criteria for its dissolution. For example, where a red light is not followed in a road for months, it cannot be said that the rule is no longer valid. Even if ineffective, the law is legitimate according to Kelson. The only two ways to disqualify validity is:
A. Through procedure laid down in the grundnorm (constiutional)
B. By overthrowing the grundnorm (Revolution)
Kelsen, Grundnorm and Revolution
In state vs Dosso it was ruled that a written constitution is not required as long as the newly established legal order is efficacious. It is legal and valid.
