A Concise Interpretation of Hans Kelsen's Pure Theory of Law
NALSAR University of Law
December 10, 2009
The principal value of the pure theory of law is that it presents the subject of its study, that is, positive law such as it is, without any unfamiliar additions. It is not only that the methodological doctrine of great heuristic possibilities is in question, but system learning as well that within its investigations ends to embrace the universal legal order interwoven in the composition of which are certain ideas of natural law all contained in many international law documents of general or regional character. Thus, the pure theory of law of Hans Kelsen, regardless of its principled negative relation towards the natural law teaching, starting exactly from the attitude that law must be presented such as it is, is forced, whether it wants to or not, also to deal with the study of the corresponding contents of natural law, which in present times under the name “human rights" make an essential integral part of the existing international law. One cannot say that Hans Kelsen was totally wrong in classifying law as pure and impure. H.L.A. Hart, a later positivist, though criticized Kelsen to some extent for the exclusion of “alien elements,” derived the rule of recognition from Hans Kelsen’s Pure Theory of Law. Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm. Kelsen’s pure theory of Law had a far reaching impact on the later positivists like Tony Honoré and Hart. Kelsen made original, striking and valuable contribution to jurisprudence and he considerably influenced the modern legal thought.
Keywords: Hans Kelsen, Pure Theory Law, Alien Elements of Law, Grundnorm, Legal Positivism, Law and nature, Law and morality, Overcoming dualism of legal theory
JEL Classification: K00
Date posted: December 11, 2009