Critics may doubt his theory`s ability to describe legal systems as they currently exist. Some types of laws are difficult to explain when the legal term Kelsen is used as a standard with a penalty. Laws of procedure and evidence, laws establishing organizations, laws granting freedoms and rights, and laws repealing other laws are all pure theory. At this point in history, his arguments in favour of the logical coherence of international and national legal systems are not convincing. Kelsen`s conceptions of law have undeniably improved the subject of jurisprudence, although they are complicated and inaccurate in several areas, and they are the subject of much criticism. In the first paragraph of Pure Theory of Law, Kelsen presents his theory as a theory of positive law. [3] This theory of positive law is then presented by Kelsen as a hierarchy of laws based on a fundamental norm in which all other norms are interdependent, either inferior norms, when one is compared to the other, or higher norms. The interaction of these norms is then presented as a static legal theory (Chapter 4 of Kelsen) or as a dynamic legal theory (Chapter 5 of Kelsen). According to Australian lawyer Julius Stone, since the basic standard is obviously the most impure, the purity of subsequent processes must mimic the original contamination of the lower standard. Some also criticize the fact that pure theory separates and excludes natural law from law. According to Kelsen, a “pure legal theory” is one that deals entirely with the part of knowledge that deals with law, including everything that is not technically part of the subject of law. According to Kelsen, a legal theory must deal with the law as written, not as it should be. The legal philosophy, according to Kelsen, should be consistent.
It should be appropriate at all times and in all places. Kelsen`s idea has various implications. State, sovereignty, private and public law, legal personality, law and obligation, and international law are covered. However, it would be a mistake to look for an explanation for Kelsen`s argument in the logic of Kant`s transcendental argument. (Kelsen himself seems to have changed his mind about this over the years; he may have started with a kind of neo-Kantian perspective that can be seen in PT1 and gradually moved to a Humenian version of his main argument, which is pretty evident in GT. However, this is a very controversial issue; for another view, see Paulson 2013 and Green 2016.) Kant used a transcendental argument to establish the necessary presuppositions of certain categories and modes of perception that are essential to rational cognition, or so he thought. They form profound, universal and necessary characteristics of human knowledge. Suffice it to recall that it was Hume`s skepticism of knowledge that Kant tried to respond to with his transcendental argument. Kelsen, however, remains much closer to Hume`s skeptical views than to Kant`s rationalism. In particular, Kelsen was highly skeptical of any objective justification of morality, including Kant`s moral theory. Kelsen`s view of morality was completely relativistic.
(More on this below). Second, and not without context, as we shall see, Kelsen explicitly rejected the idea that the fundamental norm (in law or in another normative field) is something like a necessary characteristic or category of human cognition. The requirement for a basic standard is optional. There is no need to accept the normativity of law; Anarchism as a rejection of the normative validity of the law was certainly an option, Kelsen argued. The fundamental norm is assumed only by those who accept the “duty”, that is, the normative validity of the law. But one is rationally not obliged to have this attitude: in terms of efficiency, there is no criterion for determining minimum efficiency. The idea is not viable under revolutionary conditions, critics say. There are no criteria for assessing the minimum effectiveness of a legal system, and the effectiveness of a legal system cannot be quantified by theory. He left out the social issues of morality and fairness, both of which play a role in effectiveness. This article was written by Ayush Tiwari, student at Symbiosis Law School, NOIDA. In this article, the author has briefly written about the pure legal theory given by Hans Kelsen.
Kelsen gave a new dimension to legal theory by forcing us to examine the distinction and relationship between facts and norms, between legislation and its normative effect. Kelsen proposed a consistent model of in-house litigation that, in some respects, reflects the intuitive reasoning of lawyers and legislators. It is standard legal logic to attribute the legality of a law to the constitution. The idea that valid laws are a coherent system of laws is also erroneous. Unlike its predecessors, Kelsen`s approach recognized both the laws of primitive communities and the international community as law. Kelsen`s theories are often criticized for their ideas and internal coherence. But he wrote the most revealing account of the legal process of the century. Despite the fact that none of his particular teachings met with general approval, some found their way into general legal theory.
Its half-truths and obvious errors have also shaped the development of jurisprudential thinking. This last point brings us to another central observation of Kelsen`s theory, namely the relationship between legal validity and, as he called it, “effectiveness.” The latter is an art concept in Kelsen`s writings: a standard is effective if it is actually (usually) followed by the population concerned. Thus, “a norm is considered legally valid,” Kelsen writes, “provided that it belongs to a system of norms, to an order that is largely effective” (GT, 42). The relationship here is therefore as follows: effectiveness is not a condition for the legal validity of individual norms. Any given standard can be legally valid even if no one follows it. (e.g., think of a new law that has just been enacted; It is legally valid, even if no one has yet had the opportunity to comply.) However, a norm can only be legally valid if it belongs to a system, a legal system, which, on the whole, is actually practised by a certain population. Thus, as Kelsen admits, the idea of legal validity is intimately linked to this reality of social practice; A legal system exists, so to speak, only as a social reality, a reality that people actually follow certain norms. First, it would be “pure” in a sense analogous to Kant`s Metaphysical Foundations of Science. It constitutes a priori a `pure part` of the case-law, consisting of a framework of basic concepts. Then, this framework would be applied in an empirical part of the jurisprudence to empirical (sociological, historical, etc.). Material applied to understand this material as a “law”.
[11] In any event, even if Kelsen was wrong about the details of the unity of legal systems, his most important view remains true and very important. It is true that the law is essentially systematic, and it is also true that the idea of legal validity and the systematic nature of the law are very closely linked. Standards are legally valid in a particular system, they must be part of a system of standards in force at a given place and time. The third aspect of Kelsen`s pure theory is that legal norms are different from other sciences, law is a normative science.