An Analysis of the Kelson’s Theory of Law

14 Pages Posted: 29 Jan 2013

Date Written: January 28, 2013

Abstract

It is said that Kelsen’s contribution in the development of Analytical Positivism is a big zero as he repeats the things of ‘Sovereignty’ of John Austin and the ‘Rule of Recognization’ of Prof. Hart with the changing phraseology of Grund Norm of his own. In the backdrop of above observation the researcher would like to highlight the contribution of Kelsen’s Pure theory of law in the development of Analytical Positivism and its core reality. Before entering into Kelsen thesis on ‘Pure Law Theory’, the researcher would like to put the differentiation between the natural law school and analytical positivism school. The natural law school deals with the concept of law of nature. It is about the God made law. It also says about the value, ethics, morality and supernatural aspect. It also deals with the idea of reason. Basically natural law school indicates the “ought” proposition. But the ‘analytical positivism school’ does not concentrate about the “ought” proposition, value judgement and theological affairs. The analytical positivism school takes the “is” proposition and tries to establish the scientific temper in a logical manner. According to Austin, ‘Law is command of Sovereign backed by sanction’. It is authority supportive that sovereignty must be obeyed and must not be challenged. Kelsen, an analytical jurist, in his ‘Pure Theory of Law says,’ Law is the norm which stipulates sanction. Kelsen’s ‘Pure Theory’ is about the ‘hierarchy of norms. He also says about the normative behaviour which takes validity from the ‘Ground norm’. In his ‘Pure Theory of Law’ says Kelsen, that law should be kept pure from extra legal affairs. But Prof. H.L.A. Hart propounded that law is Union of ‘Primary and Secondary Rules’. He also said about the minimum content of morality within the framework of Analytical School. Here Kelsen established the normative character of law. On the other hand Hart gave emphasis on rule. It is core reality that Austin, Kelsen and Hart established the coercive character of law in different ways. The objective and scope of the topic is very wide. A set of behavioural norm is in every society. The normative behaviour control and regulate the human being. The pure theory is free from any extra-legal element and the sanction is also under the scope of the norms. The research work has been done with the help of doctrinal method which carries the legal structure, case analysis and the legal framework.

Keywords: Kelson's Theory of Law, Biological Sketch

Suggested Citation

Ali, S. K., An Analysis of the Kelson’s Theory of Law (January 28, 2013). Available at SSRN: https://ssrn.com/abstract=2208176 or http://dx.doi.org/10.2139/ssrn.2208176

S. K. Ali (Contact Author)

Balurghat Law College ( email )

Dakshin Dinajpur, West Bengal 733103
India
9775390699 (Phone)

HOME PAGE: http://www.linkedin.com/pub/sk-jahangir-ali/63/b58/69?trk=shareFB

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