Hans Kelsen had an unusual theoretical talent. His legal theory is so general in an Aristotelian way that one can imagine that someone will read it with great interest even in a thousand years. ЧР̧ÑаÑÑ Ð²ÐμÑÑ Ð3/4Ñз Ñв In common law, pure legal theory is the theory of positive law, but not that of a particular legal system. The theory is a coherent version of the jurisprudential school of legal positivism, since it refers to law as a positive or pure law because it does not recognize any normative social order. Law is a certain type of standard. It is a theory of juridical positivism, that is, a theory of man-made law and not of transcendental law. To be called positive law, it must fulfill two conditions, first, that it be stated, established or created by man, and not determined by God or divine. The second condition is that the legal standard be followed or applied by the general public; It should be very effective. Here, the word “obey” refers to a law that the people follow, and the word “applied” refers to the moment when the law is not yet effective but becomes effective through the application of the legal norm. This pure legal theory first avoids the word “pure”, that it avoids the erroneous equation of the validity of the law with its effectiveness. In this way, theory separates jurisprudence from all kinds of sciences, whether social sciences or natural sciences. In this way, it can be said that pure legal theory is the theory of positive law.
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 not rationally obliged to have this attitude: Kelsen rejected Austin`s proposal to establish a sovereign as a source, and he interpreted the pure principle necessary to achieve orderly symmetry in the legal system so that the sources of law could be traced. Kelsen`s pure legal theory encompasses almost all legal concepts such as legal personality, rights and obligations, private and public law, etc. Kelsen`s pure legal theory is characterized by a pyramidal hierarchy based on the basic norm as the basic norm.
Grundnorm is a German term meaning “basic standard”. He defines it as “the supposed ultimate rule by which norms of this order are constituted and abolished, and their validity is received or lost.” The basic standard specifies the content and verifies the other standards derived from it. But where he gets his legitimacy was a question Kelsen denied, saying it was a metaphysical issue. Kelsen suggested that Grundnorm was a work of fiction and not a hypothesis. According to Kelsen is in “. In each country, there is a hierarchy of legal norms, led by what he calls the “core norm.” “, here the basic standard is called the basic standard. If there is a conflict regarding the legal norm between the upper and lower layers of the hierarchy, then the former will prevail over the latter. Since jurisprudence is the mother of all laws, as well as the constitution is the supreme law of the land, which will always take precedence over any other law, in India the hierarchy of legal norms is as follows: Kelsen`s explanation of normativity is closely related to his critique of theories of natural law, which he believes is his only viable alternative. According to Kelsen, there is no explicit idea of legal validity in natural law. Moral validity is the only idea of validity. Theories of natural law, according to Kelsen, are conceptually confused: one is secular, the other religious.
Natural law is logically binding and obvious, according to secular ideas. According to religious views, these are divine instructions that must be followed by people. The basic principle of secular theory is that nature must be respected, while the basic principle of religious theory is that God must be respected. Kelsen uses sanctions to emphasize the coercive aspect of the law. Because it brings a psychological aspect to a legal theory, Kelsen rejects Austin`s interpretation of sanction, which she sees as a mandate from the sovereign. Therefore, it favours the fundamental norm that confers legitimacy on legislation. Its authoritarian character lends credibility to any legal system. The sanctioning power of the basic standard makes it applicable to all other laws. According to Kelsen`s study of the sanctioned view of the law, legal norms are articulated in the form that if a person does not comply with a certain prohibition, the courts must impose a penalty, whether criminal or civil.
The idea of pure legal theory was put forward by the impressive Austrian jurist and philosopher Hans Kelsen (1881-1973) (see bibliographical note). Kelsen began his long career as a legal theorist in the early 20th century. According to Kelsen, the traditional legal philosophies of the time were hopelessly contaminated by political ideology and moralization on the one hand or by attempts to reduce the right to the natural or social sciences on the other. He found both of these reductionist efforts seriously flawed. Instead, Kelsen proposed a “pure” legal theory that would avoid reductionism. The jurisprudence advocated by Kelsen “is characterized as a `pure` legal theory, because it aims at knowledge oriented solely towards law” and this purity serves as a “basic methodological principle” (PT1, 7). 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 jurisprudence, there are virtually none of the theories that cause confusion in the minds of scholars, one of them is Hans Kelsen`s theory of “pure legal theory”. According to various researchers, Kelsen`s theory of legal normativity has never been clear. Kelsen observed that various legal positivists recognize normative orders such as the label of moral order as law, but for him it was not a law, for him law is norms that are part of the legal order, unless they have been incorporated into the law by reference. He believed that the law is a coercive order because it encourages or highlights human behavior by linking rules to opposite behavior, coercive acts as punishments. A legal theory must be “pure”, that is, free from extra-legal influences of any kind. As a result, Hans Kelsen believed and promoted a theory free of extra-legal aspects such as sociology, philosophy, ideology, psychology, politics, ethics, etc. Kelsen quickly concluded that law belongs to the humanities rather than the natural sciences. According to Kelsen, pure legal theory is so called because it exclusively describes law and attempts to exclude everything that is not exactly legal from the object of that description: its purpose is to free jurisprudence from foreign components.
Based on two elements, Kelsen explained that his hypothesis is pure. For example, it distinguishes between good and fact. Second, it distinguishes between morality and law.