"PURE THEORY OF LAW HANS KELSON"

A RESEARCH PAPER SUBMITTED TO SAVITRIBAI

PHULE PUNE UNIVERSITY (FACULTY OF LAW)

SUBMITTED BY

MR. ANWAR KHAN

I YEAR LL.M, SEMESTER-I, ROLL NO. 06

UNDER THE GUIDANCE OF

DR. GEETANJALI PAYGUDE (ASST.PROFESSOR)

POST GRADUATION TEACHING DEPARTMENT OF

LAW AND Ph.D. RESEARCH CENTRE

A.K.K.NEW LAW ACADEM

Ph. D (Law) Research Centre, Pune

DECEMBER, 2022

1
 CERTIFICATE OF THE GUIDE

This is to Certify that the Longish Term Paper-I "PURE THEORY OF

LAW HANS KELSON" Submitted by MR. ANWAR KHAN was
carried out by the candidate under my Supervision / Guidance.

Such material has been obtained from other sources has been duly
acknowledged in the Longish Term Paper.

Place: PUNE

Dated: _____/12 /2022

UNDER THE GUIDANCE OF

DR. GEETANJALI PAYGUDE

(ASST.PROFESSOR)

2
 DECLARATION

I hereby, declare that the Longish Term Paper – I, "PURE THEORY

OF LAW HANS KELSON" submitted by me is the record of work
carried out by me during.

Semester-I of the First Year of LL.M Course for the academic Year
2022-2023 under the guidance of DR. GEETANJALI PAYGUDE
(ASST.PROFESSOR)has not formed the basis for award of any degree,
diploma, associate ship, fellowship, titles in this or any University or
other Institution of Higher Learning.

I further declare that the material obtained from other sources has been
acknowledged in this Research work.

Place: PUNE

Dated: __________/12/2022

MR. ANWAR KHAN

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 ACKNOWLEDGMENT

Firstly, I would like to express my heartfelt gratitude to my Principal

DR. RASHID SHAIKH for giving me this opportunity to undertake this
research work and successfully accomplishing the same.

I would also like to extend my immense gratitude to my guide DR.

GEETANJALI PAYGUDE (ASST.PROFESSOR) for her valuable
guidance and for being a source of inspiration and encouragement,
enabling me to complete my Research successfully.

Last but not the least I would like to thank all my classmates and my
family without whose support this Research would not have been
possible.

Place: PUNE

Date: ______/12/2022

MR. ANWAR KHAN

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 INDEX

CHAPTERS TITLE Pg. No.

CHAPTER 1 Introduction to the topic 6-16
1.1 Introduction 6
1.2 Statement of research problem 11
1.3 Hypothesis of the study 12
1.4 Objectives of the research study 13
1.5 Significance / rational of the study 14
1.6 Scope of the study 14
1.7 Research methodology 16
CHAPTER 2 PURE THEORY OF LAW 17-25

2.1 MAIN PRINCIPLES UNDER PURE THEORY 22

OF LAW
2.2 HIERARCHY OF NORMS 24
CHAPTER 3 PURE THEORY OF LAW AND ITS 26-32
INCORPORATION UNDER THE INDIAN
LEGAL SYSTEM
3.1 THEORY OF POSITIVE LAW 27
3.2 PURE THEORY OF LAW AND INDIAN 29
CONSTITUTION
3.3 PURE THEORY OF LAW AND 29
CONSTITUTION OF INDIA
CHAPTER 4 KELSEN’S CRITICISM OF NATURAL LAW 33—37
CHAPTER 5 KELSEN’S VIEWS ON INTERNATIONAL 38
LAW
5.1 IMPLICATIONS OF PURE THEORY OF 38
LAW
CONCLUSION 40
REFERENCES 41-45

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 CHAPTER 1

INTRODUCTION TO THE TOPIC

The pure theory of law is a broad theory of law that complies with legal positivism‘s
principles. Its technique is structural analysis, and its goal is to comprehend the law as
it is, not as it should be. More precisely, it supplies us with a collection of core legal
ideas to employ when seeking to comprehend and express the law in a scientific
manner, such as ‗legal system,‘ ‗norm,‘ ‗right,‘ ‗duty,‘ ‗sanction,‘ and ‗imputation.‘
We may argue that Pure Theory‘s goal is to create the theoretical groundwork for
other legal disciplines like Contract Law, Constitutional Law, Legal History,
Comparative Law, and so on.

Hans Kelsen, a renowned Austrian lawyer, and philosopher proposed the concept of
Pure Theory of Law. At the turn of the twentieth century, Kelsen began his long
career as a legal thinker. Traditional legal philosophies were hopelessly tainted,
according to Kelsen, with political ideology and moralising on the one hand, and
efforts to reduce the law to natural or social sciences on the other. Both of these
reductionist initiatives were proven to be substantially defective by him. Instead,
Kelsen proposed a ‗pure‘ philosophy of law that avoided any reductionism.

Kelsen‘s argument claims that when natural law contains aspects of politics,
sociology, or other factors, there is no need to explain it. He felt that any potential of
morality, sociology or any other factor should be removed from understanding the
pure or natural law. As a result, the theory is known as the Pure Theory of Law.

1.1 INTRODUCTION

In this Research, we are going to discuss the Pure Theory of Law propounded by the
Austrian jurist Hans Kelsen. This theory is known by various names like pure
theory, Grundnorm theory, Kelsen‘s concept of law, etc1.

Generally, there is a system of laws, rules, and regulations which are implemented
through social institutions to operate human behavior. Although, the word ―law‖ has

1
https://www.lawnotes4u.in/pure-theory-of-law-by-hans-kelsen-jurisprudence/

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no universally accepted definition. Laws can be made by law legislation through
legislation resulting in statutes, the executive through decrees and regulations, or
judges through binding precedents.

The idea of a Pure Theory of law was propounded by the formidable Austrian jurist
and philosopher Hans Kelsen (1881-1973). Kelsen began his long career as a legal
theorist at the beginning of the 20th century.

Kelsen theory stands at the same level and has a similar importance to Austin‘s
theory. Kelson developed his theory on law and made a great contribution to
jurisprudence. Positivism was redefined and redefined by Kelsen‘s pure principle and
is part of analytic positivism and parcel. Kelsen developed his theory on a theoretical
and philosophical basis.

According to Kalson, the weather of positivism was sown by natural lawyers like
Stamler, not positivists. Stambler invents the concept of purity. The concept that the
law would be pure from any other investigation such as sociological, political,
historical, logical, etc. reflects the purity of the law. The law will not be based on all
those components, deprived, connected, or mixed. Thus, according to Kelsen, ―the
law will stand on its own.‖

Hans Kelsen (1881-1973)2 was an Austrian jurist and philosopher and he began his
career as a legal theorist at the beginning of 20th century. He was the judge of the
Supreme Constitutional Court of Austria for the duration of ten years from 1920
to1930. His notable works are Principles of International Law and Pure Theory of
Law. Hans Kelsen firstly proposed his theory in 1934 and expanded it in 1960.
Kelson‘s pure theory of law is also known as Normative theory. It is called the pure
theory of law by Hans Kelsen because it talks about pure law and it excludes the other
factor affecting the definition of law like morality, ethics, economics, sociology, etc.
Kelsen‘s theory stands at the same level and has a similar importance to Austin‘s
theory. Kelsen believes the concept that the law should be pure from any investigation
such as sociological, political, historical, logical, etc. The law won‘t be supported all

2
https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-criticism/

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those parts underprivileged, connected, or mixed. Thus, according to Kelsen, ―the law
will stand on its own‖.

Why the principle was proposed:-

According to Kalson, laws are scattered in the society which creates ambiguity in the
source of the law. There is a whole variety of laws and regulations. The laws have
scattered which have created the inequality of the class. There is a kind of chaos in the
legal system. Therefore, Kelsen went to develop his pure principle of law to achieve
uniformity.

Hans Kelson:-

Hans Kelson (d. 1973) was an Austrian jurist, legal philosopher, and political
Philosopher belonging to a legal positivism school of thought. Roscoe Pound was
appreciated as Kelson‘s ―undoubtedly the leading jurist of time.‖ Kelsen is considered
to be one of the pre-eminent jurists of the 20th century. Kelsen became famous due to
his pure theory of law and the doctrine of Pure law.

His book, entitled ―The Pure Theory of Law‖, was published in two editions, one in
Europe in 1934, and a second extended edition after he had joined the faculty at the
University of California at Berkeley in 1960.

Hans Kelsen born in Prague in 1881 to Jewish Viennese parents who moved back to
Vienna shortly after his birth. Although he was resolutely agnostic, Kelsen converted
to Catholicism in 1905 to avoid integration problems but nonetheless faced anti-
Semitism at various times throughout his life in Europe. He began teaching at the
University of Vienna in 1911 and, following World War I, Kelsen was the main
drafter of the 1920 Constitution of the Austrian Republic. He was a judge of the
Austrian Constitutional Court until 1930 when he was dismissed by the government
due to a constitutional crisis concerning the legality of remarriage. Kelsen left Austria
and lectured in Cologne until 1933, when he was removed from his post following the
Nazi seizure of power in Germany. He then worked at both Geneva and Prague, but
was removed from the latter post due to anti-Semitic sentiments among students.
Kelsen left Geneva for the United States in 1940, where he taught first at Harvard

8
Law School and later, until his retirement in 1952, at the Department of Political
Science at the University of California, Berkeley. Kelsen continued to write and he
was still working on his final book when he died in 1973 aged 92 3. Kelsen‘s ―pure
theory of law‖ is a positivist theory that has been extremely influential in the world of
jurisprudence. In 1963, for example, H.L.A. Hart described Kelsen as ―the most
stimulating writer on analytical jurisprudence of our day‖; a few years later Graham
Hughes suggested that, as the last quarter of the twentieth century approached, ―there
can no longer be any doubt that the formative jurist of our time is Hans Kelsen‖4.
Even now, despite a significant waning in Kelsen‘s influence during that last quarter
century, it is not unusual to hear him described as the most important legal
philosopher of the twentieth century. His jurisprudence, as we shall mention again,
has been referred to in a number of important cases concerning the legality of
revolutions, and his theory‘s intellectual appeal has also been acknowledged in Latin
America and the Far East as well as in Europe5. The aim of this chapter is to outline
the methodology and main features of the pure theory, which Kelsen began
developing during his Austrian years and which received its first complete exposition
in 1934. In that year, at the age of 52, Kelsen published Reine Rechtslehre: Einleitung
in die rechtswissen- schaftliche Problematic, a book that was translated into English
only in 1992, under the title Introduction to the Problems of Legal Theory6. As Kelsen
explained at the beginning of this work:

―More than twenty years ago I undertook to develop a pure theory of law, that is a
legal theory purified of all political ideology and every element of the natural

3
To date, the only complete biography published was written by Kelsen‘s former student and assistant
Rudolf Aladár Métall, Hans Kelsen: Leben und Werk (Deuticke, Vienna, 1969). For a brief sketch based
on this work, see N. Bersier Ladavac, ―Hans Kelsen: Biographical Note and Bibliography‖ (1998) 9
European Journal of International Law 391.
4
H.L.A. Hart, ―Kelsen Visited‖ (1963) 10 UCLA Law Review 709 at 728; G. Hughes, ―Validity and the
Basic Norm‖ (1971) 59 California Law Review 695 at 695
5
H. Kelsen, Introduction to the Problems of Legal Theory, p.1.
6
―His influence was greatest in German-speaking countries, where he is still widely discussed, in Latin
America, where he was hailed as a defender of a nonideological treatment of law against natural law
theory, and in Japan and Korea, where he is considered to be the model of European legal theory. He is
one of the few continental legal theorists to be widely known in the English-speaking world …‖. M.
Hartney, ―Hans Kelsen‖ in The Philosophy of Law: An Encyclopedia (C.B. Gray ed., Garland, New
York, 1999), p.480.

9
sciences, a theory conscious, so to speak, of the autonomy of the object of its enquiry
and thereby conscious of its own unique character. Jurisprudence had almost
completely been reduced— openly or covertly—to deliberations of legal policy, and
my aim from the very beginning was to raise it to the level of a genuine science, a
human science. The idea was to develop those tendencies of jurisprudence that focus
solely on cognition of the law rather than on the shaping of it, and to bring the results
of this cognition as close as possible to the highest values of all science: objectivity
and exactitude7.‖

Kelsen‘s goal in developing the pure theory was to make possible a value-free
jurisprudence or a ―science of law‖. This jurisprudence would focus on nothing other
than ―cognition‖ of the law, that is, on exactly how law is perceived and recognised.
Michael Hartney has observed that nineteenth-century German legal thought had
created a ―general theory of law‖ (Allgemeine Rechtslehre) as a field of study separate
from the ―philosophy of law‖ (Rechtsphilosphie, or moral considerations about law),
and that Kelsen saw himself ―as continuing the project of a general theory of law, but
in a way which would remove some of the errors that still infected this discipline.
Hence, the need for a purified theory of law, a ‗Pure Theory of Law‘8.‖

Before turning to the theory itself, it will be helpful to mention Kelsen‘s three other
main works on the pure theory, a theory that he continued to revise throughout his
life: General Theory of Law and State was published in the United States in 1945 as a
restatement of his views for an English-speaking audience9; a revised version of the
1934 book was published in 1960 as Reine Rechtslehre and translated into English as

7
H. Kelsen, Reine Rechtslehre: Einleitung in die rechtswissenschaftliche Problematic (Deuticke, Vienna,
1934); Introduction to the Problems of Legal Theory (B.L. Paulson and S.L. Paulson trans., Clarendon
Press, Oxford, 1992). A substantial part of the 1934 book did appear in English in 1934–35 as ―The Pure
Theory of Law: Its Method and Fundamental Concepts‖ (C.H. Wilson trans.): (1934) 50 Law Quarterly
Review474 and (1935) 51 Law Quarterly Review 517.
8
M. Hartney, ―Hans Kelsen‖, p.478. It is important to note, however, that Kelsen did not ignore or
reject the idea of the ―philosophy of law‖. Nearly one hundred of the 387 titles in Robert Walter‘s
definitive bibliography of Kelsen‘s works are on—or relate to – the pure theory, but Kelsen also wrote
extensively on subjects such as theories of justice, Austrian constitutional law, public law, international
law, political and social theory, and the parliamentary system and democracy. See R. Walter, Hans
Kelsen: Ein Leben im Dientse der Wissenschaft (Manz, Vienna, 1985).
9
H. Kelsen, General Theory of Law and State (Harvard University Press, Cambridge, Mass., 1945).

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Pure Theory of Law in 196710; and the final revision of the pure theory was published
posthumously in 1979 as Allgemeine Theorie der Normen, which appeared in English,
as General Theory of Norms, in 199111.

Opinions vary as to the extent to which Kelsen‘s various revisions changed his theory.
In this chapter our central focus will be on setting out an account of Kelsen‘s
jurisprudence as it is generally understood. We will first examine the epistemological
basis of the pure theory and how it gives rise to Kelsen‘s idea of a legal system as
comprising ―norms‖, including a foundational Grundnorm (―basic norm‖). We will
then look at the place of the state in the pure theory, and also at the issue of judicial
and administrative decision-making. Finally, we will outline and assess some of the
criticisms that the theory has been subjected to over the years.

1.2 STATEMENT OF RESEARCH PROBLEM

1. The theory of Kelsen suggests that Grundnorm is the concept of the Constitution
that ought to be followed. The Constitution of a country is a sociological, political
document, and therefore Grundnorm is not pure.

2. Kelsen also said that the law should be kept free from ethics/morality. A general
question should be raised here, whether it is possible to keep the law free of
ethics/morality? Kelsen insisted on the law to be effective and thus he accepted
indirectly ethics as a part of effectiveness.

3. Kelsey attempted to change the law into a science, a theory that could be
understood through logic, but on the other hand, he emphasized the validity of the
Grundnorm to ―assumed‖, rather than based on some ―logic‖.

4. Kelsen tried to find the law and legal norms in a middle realm between absolute
ethical values and social facts. Therefore, rejection of the relevance of ethics ideas

10
H. Kelsen, Reine Rechtslehre (Deuticke, Vienna, 1960); Pure Theory of Law (M. Knight trans.,
University of California Press, Berkeley, 1967).
11
H. Kelsen, Allgemeine Theorie der Normen (Manz, Vienna, 1979); General Theory of Norms (M.
Hartney trans., Clarendon Press, Oxford, 1991). The 1991 volume contains a bibliography of Kelsen‘s
publications in English. Other restatements and summaries of the pure theory by Kelsen include ―What
is the Pure Theory of Law?‖ (1960) 34 Tulane Law Review 269 and ―On the Pure Theory of Law‖
(1966) 1 IsraelLaw Review 1.

11
makes the legal science sterile and useless and rejects the factual nature of law
separating it from reality.

1.3 HYPOTHESIS OF THE STUDY

The research Hypothesis is According to Kelsen, a ―pure theory of law‖ is one that is
entirely concerned with the part of knowledge that deals with law, including
everything that does not technically belong to the subject matter of law.

The research Hypothesis is According to Kelsen, a theory of law must deal with the
law as it is written, not as it should be. The philosophy of law, according to Kelsen,
should be consistent. It ought to be appropriate at all times and in all locations.
Kelsen‘s idea has a wide range of ramifications. State, sovereignty, private and public
law, legal personality, right and obligation, and international law are all covered.

The research Hypothesis is the idea of a Pure Theory of Law was propounded by the
formidable Austrian jurist and philosopher Hans Kelsen (1881–1973) (see the
bibliographical note).

The research Hypothesis of Kelsen began his long career as a legal theorist at the
beginning of the 20th century. The traditional legal philosophies at the time, were,
Kelsen claimed, hopelessly contaminated with political ideology and moralizing on
the one hand, or with attempts to reduce the law to natural or social sciences, on the
other hand.

The research Hypothesis by Kelsen suggested a ‗pure‘ theory of law which would
avoid reductionism of any kind. The jurisprudence Kelsen propounded ―characterizes
itself as a ‗pure‘ theory of law because it aims at cognition focused on the law alone‖
and this purity serves as its ―basic methodological principle‖

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1.4 OBJECTIVES OF THE RESEARCH STUDY

The objective of this story is to become the homogeneity of laws and the legal system
of laws is scattered and it is difficult to find the actual source of the law. Kelsey
rejected Austin‘s proposal to set up a superior authority (sovereign) as a source and he
interpreted the pure principle which is necessary to achieve the order of symmetry in
the legal system. So the source of the law can be traced. The validity of the law can be
fixed on the basis of pure principle.

Kelsen rejected Austin‘s proposal to set up a Superior authority (Sovereign) as a

source and he interpreted the pure principle which is necessary to achieve the ordered
symmetry in the legal system, so the sources of law can be traced. Kelsen‘s pure
theory of law almost covers all legal concepts such as legal personality, rights, and
duties, private and public laws, etc.

Essential Features Of Kelsen’s Pure Theory

The essential features of Kelsen‘s Pure Theory of law are as follows –

1. The aim of a theory of law, as of any science, is to reduce chaos and

multiplicity to unity.
2. Legal theory is science, not volition. It is knowledge of what the law is not of
what the law ‗ought to be‘.
3. The law is normative not a natural science.
4. Kelsen‘s strict separation of law and morality is an integral part of his pure
theory of law.
5. It is a formal theory confined to a particular system of positive law as actually
in operation.

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1.5 SIGNIFICANCE / RATIONAL OF THE STUDY

Hans Kelsen is one of the most influential legal philosophers of the last century has
contributed to answering some basic questions about the law.

The first of these is related to the theories of law, which should be on the law, on one
hand, and on the other hand, for the institutions, practices, and works of our society.

The second aspect of Kelsen‘s theory is that the whole system is interconnected to
each other as a hierarchy of norms with each other and a basic norm stands on top of
this hierarchy, which is called Grandnorm, which is the highest order, and the validity
of this Grundnorm is to be supposed. All other norms are their derivatives of the
legitimacy of this Grundnorm, and no one can question the validity of this
Grundnorm.

Another aspect of Kelsen‘s theory is that it presents us with a dynamic legal order
instead of just a static. Law is organized through the maintenance of the system
stability through the broadness and simplification of its various parts principles and
ideological compartments and, in a nutshell, though tending to become a logical
system, a perfect and complete logical system.

1.6 SCOPE OF THE STUDY

The scope of Kelsen's theory is completely different from that of Austin. According to
him, the law can be defined in terms of certain norms. The whole legal system is
interconnected with different norms and there is a basic norm that is known as
grundnorm. All other norms are derived from the grundnorm. It is always
constitutional in nature and although it is entirely formal, it forms the main basis of
the legal system12.

In India, Kelsen's theory plays a vital role in the Indian Constitution. All the other
laws derive their validity from the Indian Constitution. If any law is unconstitutional,
it can be stuck down and declared to be null and void. Hence, Kelsen's theory plays a
crucial role in the modern world also.'

12 Morris R. Cohen, Philosophy and Legal Science', 32 COL. L. REV. 1103 (1932)

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Hans Kelsen gave a huge contribution in answering some basic questions about the
law. There are mainly three aspects of Kelsen‘s Pure Theory about the law.

The First aspect of Kelsen’s pure theory13 is theories of law should only be related
to law. He excludes other social sciences and morality. Law should be in its pure form
and this is the reason he named his theory as Kelsen‘s Pure theory of law.

The Second aspect of Kelsen pure theory is that whole system of law is the
hierarchy of norms in which the basic norm that is also known as Grundnorm is at the
apex level and all the other norms check its validity from the basic norm. if any norm
is against or contradictory to the basic norm then that norm should be invalid. Also,
he said no one can question the validity of Grundnorm.

The Third aspect of Kelsen’s pure theory is that law norms are different from other
sciences, law is a normative science. He differentiates between moral norms and legal
norms. He belongs to the Analytical school of jurisprudence but he opposes the
command theory of Austin.

Scope of the research

 Grundnorm is vague and confusing.

 Kelsen also said that the law should be kept free from morality. Whether it is
possible to keep the law free of morality? Kelsen insisted on the law to be
effective and thus he accepted indirectly morality as a part of effectiveness.
 Kelsen attempted to change the law into a science, a theory that could be
understood through logic, but on the other hand, he emphasized the validity of
the grundnorm to ―assumed‖, rather than based on some ―logic‖.
 From where grundnorm takes its validity.
 Kelsen‘s pure theory is without any sociological foundation as it excludes all
social facts and needs of the society.

13
1958 SC Ind 533

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1.7 RESEARCH METHODOLOGY

Legal research methodologies are techniques by which one acquires legally relevant
information, analyzes, interprets, and applies them to resolve issues and present the
findings. Thus, legal research methodology is a scientific and systematic way to solve
any legal research data. The data collection methods for the legal research is always
consider as a secondary data, the sources of secondary data are; online, e-books,
books etc…

Research methodology has been defined as the means of acquiring scientific

knowledge. It has also been defined as a means to gather information and data to
achieve a valid outcome.

Legal research methodology is simply a way of addressing and exploring unsettled

legal questions or issues.

Legal research methodologies are techniques by which one acquires legally relevant
information, analyzes, interprets, and applies them to resolve issues and present the
findings.

Thus, legal research methodology is a scientific and systematic way to solve any legal
research.

Legal research methodology also refers to rules of interpretation of legal problems

and issues. It is a systematic effort to make an argument to arrive at a true or accurate
account of the subject matter under consideration.

The researcher should explain properly why he uses a particular method to evaluate
research results by the researcher himself or others. Adopting a particular
methodology should stem from the research objective and purpose.

16
 CHAPTER 2

PURE THEORY OF LAW

A theory of law should be ―pure,‖ that is, free of extra-legal influences of any type.
As a result, Hans Kelsen believed in and promoted a theory that was free of any extra-
legal aspects such as sociology, philosophy, ideology, psychology, politics, ethics,
and so on. Kelsen quickly deduced that law belongs to the human sciences rather than
the scientific sciences. According to Kelsen, the pure theory of law is so named
because it exclusively describes the law and strives to exclude anything that isn‘t
precisely legal from the object of this description: Its goal is to free legal science of
alien components. On the basis of two elements, Kelsen stated that his hypothesis is
pure. For example, it distinguishes between law and fact. Second, it distinguishes
between morals and law. Kelsen‘s views go counter to the notion of precedents,
which states that legal ideas emerge as a result of cases being decided. Kelsen‘s pure
legal theory does not represent the realities of real-world legal systems. Kelsen‘s Pure
Theory of Law aimed to purge law of all impure or foreign aspects, leaving material
that is purely legal. From a legal standpoint, the law is a standard, not an actuality.

According to Kelsen, a ―pure theory of law‖ is one that is entirely concerned with the
part of knowledge that deals with law, including everything that does not technically
belong to the subject matter of law. According to Kelsen, a theory of law must deal
with the law as it is written, not as it should be. The philosophy of law, according to
Kelsen, should be consistent. It ought to be appropriate at all times and in all
locations. Kelsen‘s idea has a wide range of ramifications. State, sovereignty, private
and public law, legal personality, right and obligation, and international law are all
covered.

As George Pavlakos observed in the preceding chapter in this volume, Kelsen‘s

positivism—like H.L.A. Hart‘s—was a version of the form of positivism that
considers that law can be determined in a context-independent way, by refer- ence to a
set of purely legal criteria. But whereas Hart‘s positivism is conven- tionalist—
viewing law as the outcome of a social convention that is constitutive for the
existence of law—Kelsen‘s positivism is epistemic, consisting in the belief that law
forms an autonomous domain of knowledge that ought to be studied as a special legal

17
science, in an objective way, akin to the way science studies the natural environment.
To quote again from one of Kelsen‘s own introductions to his theory:

―The Pure Theory of Law is a theory of positive law. It is a theory of positive law in
general, not of a specific legal order. It is a general theory of law, not an interpretation
of specific national or international legal norms; but it offers a theory of
interpretation. As a theory, its exclusive purpose is to know and to describe its object.
The theory attempts to answer the question what and how the law is, not how it ought
to be. It is a science of law (jurisprudence), not legal politics. It is called a ‗pure‘
theory of law, because it only describes the law and attempts to eliminate from the
object of this description everything that is not strictly law: Its aim is to free the
science of law from alien elements. This is the methodological basis of the theory14.‖

The purpose of the pure theory, Kelsen says here, ―is to know and to describe its
object‖, that is, to know and to describe law. Whereas Hart engaged primarily in
conceptual analysis – studying the various instances of the application of ―law‖ and
trying to make explicit the rules that guide speakers in using it— Kelsen‘s analytic
approach employed a form of transcendental reasoning in order to reveal necessary
conditions for the cognition of law. In simple terms, an issue or question is
transcendental if its resolution is not purely a matter of logic or mathematics, and also
lies beyond the scope of sense experience. The transcendental reasoning employed by
Kelsen is derived from the German philosopher, Immanuel Kant (1724–1804). Kant is
revered by many as the modern philosopher who successfully reconciled the
competing claims of the two main epistemologies of modernity—rationalism and
empiricism. In Kant‘s epistemology, instead of prioritising reason or experience, the
two ways of knowing are combined: the objective world – that which one perceives—
is transmuted by certain formal categories or ―laws‖ of the mind; or to put it another
way, the mind‘s categories provide the conceptual structure of experience.

Kelsen approached law—again, the ―object‖ of his theory—with the aim of

identifying the necessary conditions for its cognition. What turns an event, or ―a
natural phenomenon determined by causality‖, into a legal or illegal act is not,
according to Kelsen, its physical existence; rather it is ―the objective meaning

14
H. Kelsen, Pure Theory of Law (1967), p.1 (emphasis in original).

18
resulting from its interpretation. … The qualification of a certain act as the execution
of the death penalty rather than as murder – a qualification that cannot be perceived
by the senses – results from a thinking process: from the confrontation of this act with
the criminal code and the code of criminal procedure. That [an] exchange of letters [of
a certain content] between merchants constitutes legally a contract, results exclusively
from the fact that such an exchange conforms with conditions defined in the civil
code. That a document is objectively as well as subjectively a valid testament results
from the fact that it conforms to conditions stipulated by this code. That an assembly
of people is a parliament, and that the meaning of their act is a statute, results from the
conformity of all these facts with the norms laid down in the constitution15.‖

In effect, as Dhananjai Shivakumar has observed, Kelsen‘s claim for his theory is that
it explains how legal phenomena must in fact be interpreted and organized within a
jurists‘s mind in order for the jurist to perform the task of recognising certain norms
as binding laws: ―This effort broadly parallels Kant‘s argument that categories, such
as causality, must be at work in order for the human mind to have ordinary, ordered
perception of sensory data. Kelsen … tries to prove that his understanding of legal
validity is a necessary condition of our ability to recognize valid laws16.‖

What, then, in more precise terms, is Kelsen‘s understanding of ―legal validity‖?

Kelsen follows Bentham and Austin in maintaining that rules of positive law are to be
differentiated from all other types of social or moral rules in being supported by
coercive sanctions, but he denied that the complexity of legal systems could be
explained by the command theory. The elements of legal systems should, according to
Kelsen, be understood not as commands but as norms. By ―norm‖, Kelsen explains,
―we mean that something ought to be or ought to happen, especially that a human
being ought to behave in a specific way … ‗Norm‘ is the meaning of an act by which
a certain behavior is commanded, permitted, or authorized17.‖ The pure theory

15
H. Kelsen, Pure Theory of Law (1967), pp.3–4 (emphasis in original).
16
D. Shivakumar, ―The Pure Theory as Ideal Type: Defending Kelsen on the Basis of Weberian
Methoology‖ (1996) 105 Yale Law Journal 1383 at 1390.
17
H. Kelsen, Pure Theory of Law, pp.4-5 (emphasis in original). There is a broader description at the
very outset of Kelsen‘s final work, the General Theory of Norms: ―The word ‗norm‘ comes from the
Latin norma, and has been adopted in German to refer primarily, though not exclusively, to a command,
a prescription, an order. Nevertheless commanding is not the only function of norms: norms also
empower, permit, and derogate‖ (p.1).

19
proposes that legal systems should be viewed as systems of norms stipulating that,
under certain conditions, a coercive measure ought to be applied. The normative
character of law consists for Kelsen in recognising that a fact has legal significance
only in so far as it has meaning within a normative system, ― a system that says that if
such and such happens, then such and such should be the consequence‖18.

The validity of legal norms is to be determined by their relation to the acts of norm-
creation, including legislation, adjudication, and bureaucratic regulation; acts of
norm-creation must in turn be validated by other norms. Michael Hartney explains
how the pure theory envisages a Stufenbau (―step- structure‖) where norms become
progressively concretised:

―A legal system is a Stufenbau, a hierarchical structure of norms; norms at one level

are addressed to officials at the next lower level and regulate the creation of norms by
these officials. The norms of the constitution are addressed to legislators and regulate
the legislative process; the norms in statutes are addressed to judges and regulate
judicial decisions; and the individual norms in judicial decisions are addressed to
enforcement officials and order them to use coercion against specific individuals.
Higher norms are made more specific by lower ones: law flows down in a series from
the most general provisions to issue in specific acts of coercion against specific
individuals. All legal norms (except those at the lowest level) are about the creation of
more specific norms and so law has this feature of regulating its own creation19.‖

If one takes a specific norm at a certain level in the hierarchy—a judicial decision, for
example, that orders enforcement officials to impose a sanction on someone who has
committed a crime, or breached a part of the civil law – one should see, according to
the pure theory, that such a norm, such an order to enforce, arises legitimately from
legislation that has been enacted in accordance with the constitutional provisions

18
D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar
(Oxford University Press, Oxford, 1997), p.102 (emphasis in original).
19
M. Hartney, ―Hans Kelsen‖, p.479. John Kelly observes that for Kelsen the entire legal system of any
country is ―a mass of linked ought-propositions or norms and nothing else; such a depiction of law
ought to be called a ‗pure‘ theory of law because of its abstraction from everything else except the
naked norm; because it is a theory of law as it is, not as it ‗should‘ be (on some standard perhaps of
morals, or economic or social utility, matters whose value Kelsen does not deny, but which are
extraneous to the law itself and to legal science properly so-called)‖. A Short History of Western Legal
Theory (Clarendon Press, Oxford, 1992), p.385.

20
governing how legislation should be enacted. The legislation is validated by the
constitution; the judicial decision is validated by the legislation; and the actions of the
enforcement officials are validated by the judicial decision.

According to the pure theory, statements about the validity of legal norms presuppose
effectiveness in two ways: a legal norm loses its validity if it has been ineffective for a
long time; and no norm can be valid unless it is a part of a system of norms which is,
by and large, effective. In these two ways, as J.W. Harris remarks, effectiveness
conditions validity. But how, Harris asks, do we measure effectiveness? ―By two
criteria: first, is the norm ‗obeyed‘ (in the sense that conduct conditioning the sanction
is not performed); secondly, when disobedience occurs, is the sanction applied20?‖

A critical question arises with regard to the Stufenbau or ―step-structure‖ of a legal

system: what validates the constitution? The answer is that, for Kelsen, there is a
Grundnorm, or ―basic norm‖, in every legal system, and it is this that validates not
only the constitution but also the entire system. In General Theory of Law and State
Kelsen compared the basic norm of a religious norm system with the basic norm of a
legal order:

―The basic norm of a religious norm system says that one ought to behave as God and
the authorities instituted by him command. Similarly, the basic norm of a legal order
prescribes that one ought to behave as the ‗fathers‘ of the constitution and the
individuals—directly or indirectly— authorised by the constitution command.
Expressed in the form of a legal norm: coercive acts ought to be carried out only
under the conditions and in the way determined by the ‗fathers‘ of the constitution or
the organs delegated by them. This is, schematically formulated, the basic norm of a
single State, the basic norm of a national legal order21.‖

In the same place Kelsen refers to the specific function of the basic norm in a way that
again sheds light on his epistemological stance:

20
J.W. Harris, Legal Philosophies (2nd ed., Butterworths, London, 1997), p.69.
21
H. Kelsen, General Theory of Law and State, p.116.

21
―The whole function of this basic norm is to confer law-creating power on the act of
the first legislator and on all the other acts based on the first act … The basic norm …
is valid because it is presupposed to be valid; and it is presupposed to be valid because
without this pre-supposition, no human act could be interpreted as a legal, especially
as a norm-creating act … That the basic norm really exists in the juristic
consciousness is the result of a simple analysis of actual juristic statements. The basic
norm is the answer to the question: how—and that means under what condition – are
all these juristic statements concerning legal norms, legal duties, legal rights, and so
on, possible22?‖

2.1 MAIN PRINCIPLES UNDER PURE THEORY OF LAW

Law as a normative science

Law is a ‗normative science,‘ according to Kelsen, yet legal norms can be separated
from scientific norms. ‗Science,‘ according to Kelsen, is a form of knowledge
organised around logical principles. A norm, according to Kelsen, is a rule that
prescribes a specific behaviour. He makes a distinction between legal and moral rules.
He said that a moral standard just states ―what a person should do or not do,‖ but a
legal norm states that if a person violates the norm, he would be penalised by the
state. Law is distinguished from politics, sociology, philosophy, and all other non-
legal sciences, according to him. According to Kelsen, an appropriate theory of law
must be pure, that is, logically self-contained and therefore not reliant on extra-legal
values, natural law, or any other external source (such as the sociological, political,
economic, or historical influence of law). The Command Theory of Austin is not
accepted by Kelsen because it incorporates a psychological aspect into the concept of
law, which Kelsen rejects. Kelsen proposes that the law be described as a
Depsycholised command. Kelsen considers ‗sanction‘ to be an important part of the
law, but prefers to refer to it as ‗norm.‘ Kelsen‘s philosophy of law is devoid of any
ethical or political ideals or judgments.

22
ibid., p.117.

22
Grundnorm

Kelsen‘s pure theory of law features a pyramidal hierarchy based on the grundnorm as
the foundational norm. Grundnorm is a German term that means ―fundamental norm.‖
He defines it as ―the assumed ultimate rule by which the norms of this order are
constituted and annulled, and their validity is received or lost.‖ The grundnorm
establishes the content and verifies additional norms that are derived from it. But
whence it gets its legitimacy was a question Kelsen refused to address, claiming it to
be a metaphysical one. Kelsen suggested Grundnorm is a work of fiction and not a
hypothesis.

According to Kelsen, unlike some of the other norms, the basic norm cannot be
explained by referring to certain other or more validating laws. Instead, it may draw
its legitimacy from the fact that it has been recognised, acknowledged, and accepted
by a significant number of people inside the political unit. As a result, the law cannot
be separated from the state‘s organised structure and authority. Because this structure
is normative, the concept of sanctions, which plays a rather unique role in Austinian
doctrine as the element that makes law functional, depends on other forces such as
prosecutors, officials, and judges to undertake their aspects of the normative structure
before sanctions are activated and inflicted.

The Grundnorm is the beginning point for a legal system, and it is from this point that
a legal system grows more complex and specialised as it evolves. This is a fluid
situation. The grundnorm, which is self-contained, is at the summit of the pyramid. In
a hierarchical structure, subordinate standards are governed by norms that are superior
to them. The system of norms progresses from downwards to upwards and finally
closes at grundnorm.

23
2.2 HIERARCHY OF NORMS

A legal order, according to Kelsen, is made up of norms arranged in a hierarchical

sequence, with one norm positioned above another and each norm getting its validity
from the norm above it. The legal order is symbolised by the hierarchy, which takes
the shape of a pyramid. As a result, the last level is the greatest norm, known as the
fundamental norm or Grund Norm, emerges, which serves as the foundation for all
future norms. The Grund norm is the cornerstone of Kelsen‘s ideology. The Grund
norm can be used to determine the legality or validity of any norm. The Grund norm‘s
validity cannot be objectively assessed. The Grund norm serves as a common
reference point for the validity of the positive legal order, or all of the legal system‘s
norms. The Grund norm must be effective, that is, it must be followed by the general
public. The validity of the Grund standard is referred to as efficacy.

Validity of Norms

The term ―validity‖ refers to the existence of a given standard. It also refers to the fact
that a norm is legally obligatory and that an individual must follow the norm‘s
instructions.

The following two postulates are stated by Kelsen:

 Every two norms that derive their validity from the same fundamental
standard are part of the same legal system.
 The legitimacy of all legal norms in a particular legal system is ultimately
derived from one basic standard.

The validity of another norm is the only explanation for a norm‘s validity. When a
single norm ceases to be effective, a legal order does not lose its validity, nor does a
single norm lose its validity if it is just ineffectual from time to time. Effectiveness is
a criterion for validity, but it is not a criterion for validity. The question of a norm‘s
validity comes before the question of its efficacy. A fact, i.e., a declaration that
something is, cannot be used to determine why a standard is legitimate or why a
person should behave in a specific manner; the reason for the correctness of a norm
cannot be a fact.

24
While the traceability of a norm to an existing basic norm which determines its
validity, efficacy refers to the norm‘s effectiveness or enforcement. In other words, it
examines if the rule is followed and whether violations are punished. If the response
is affirmative, then the standard is effective. It isn‘t otherwise. As a result, the
principle of legitimacy is constrained by the principle of efficacy. Although inefficacy
may not have an immediate impact on the validity of a norm, it may do so in the long
run. For example, the system of norms may lack its validity if the overall legal order
or the fundamental norm loses its efficacy.

In other words, they lose their validity not only when they are declared invalid by the
Constitution, but also when the entire order is rendered ineffective. Norms must be
accepted by a large number of people. As a result, validity entails higher-level legal
approval and a minimum level of efficacy. ‗The legitimacy of every single standard of
the order is contingent on the efficacy of the entire legal order.‘ Each standard in the
system depends on the validity of a higher norm.

Sanctions

Kelsen uses sanctions to emphasise the law‘s coercive aspect. Because it brings a
psychological aspect into a theory of law, Kelsen rejects Austin‘s interpretation of
sanction, which views it as a mandate from the Sovereign. As a result, he favours
Grundnorm, which gives legislation legitimacy. Its authoritative character lends
credibility to any legal system. The Grundnorm‘s sanctioning authority 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 follow a certain
ban, the courts must impose a punishment, whether criminal or civil.

25
 CHAPTER 3

PURE THEORY OF LAW AND ITS INCORPORATION UNDER

THE INDIAN LEGAL SYSTEM

The fact that the Constitution of India may very well be amended indicates that it is
possible to deviate from the Constitution‘s authority. If a constitutional clause is
significantly changed, the laws that fall under it lose their legality. If a provision of
the Constitution is repealed, the result will be the same. As a result, calling the
Constitution the Grundnorm is incorrect. Given this background, the Grundnorm in
India should be found in the ―Basic Structure‖. The ―basic structure‖ of the Indian
Constitution can be considered the rule of recognition or grundnorm, which is really
the ultimate basis of a legal system since the legislation in the Constitution acquires
legitimacy from the basic structure‘s defined norms. The superiority of the
Constitution, India as a sovereign, socialist, secular, democratic, republic as in the
Preamble and a welfare state, the federal character of the Constitution, the unity and
integrity of the country, separation of powers between the legislature, the executive,
and the judiciary, and Part III of the Indian Constitution i.e. Fundamental Rights are
some of the major features of the basic structure.

The notion of basic structure was highlighted in the case of Kesavananda Bharati v.
the State of Kerala 1973. The term ‗basic structure‘ refers to the area of the
Constitution in which the parliament has no authority to make changes. It is the
foundation of the ultimate recognition rule. This case supported the argument that any
rule or norm validating authority is the basic structure. In Indira Gandhi v. Raj
Narain (1975), the Supreme Court threw down clause 4 of Article 329-A, which was
introduced by the 39th Amendment, on the grounds that it was outside the amending
authority of the legislature since it was not in parlance with the Constitution‘s ―basic
structure.‖ Furthermore, the Hon‘ble Court decided in Minerva Mill & Ors. v. Union
of India (1980) that the Constitution‘s ―Basic Structure‖ include the limited ability of
Parliament to modify the Constitution, as well as maintaining harmony between
Fundamental Rights and Directive Principles. Furthermore, amendments cannot alter
the Constitution‘s ―Basic Structure.‖ As a result, the legal system of India closely
resembles the framework of the legal system proposed by Kelsen in his ―Pure Theory
of Law.‖

26
Kelson‘s theory suggests that there is no need of explanation of natural law when it
includes elements of politics, sociology or other elements. He believed that to
understand the pure or natural law any possibility of morality or sociology or any
other element should be excluded. So that‘s why the theory is ‗pure‘ and called Pure
Theory of Law23.

3.1 THEORY OF POSITIVE LAW

In general law, the Pure Theory of Law24 is the Theory of Positive Law but not of a
definite legal order. The theory is consistent version of legal positivism school of
jurisprudence, as it indicates law as positive or pure law because it doesn‘t recognize
any normative social order. Law is a definite type of norm. It is a theory of legal
positivism, that is, a theory of man-made rather than transcendental law. To be called
as positive law, it must fulfill two conditions, first one is that it should be stated,
established or created by the human being and should not be supposed to be
established by god or divine. Second condition is that the legal norm is obeyed or
applied by public at large; it should be effective to a great extent. Here the word
‗obey‘ refers to a law followed by the people and the word ‗applied‘ refers to when
the law is not yet effective but it becomes effective by applying the legal norm. That
the pure theory of law at first place the word ‗pure‘ that it avoids the erroneous
identification of the validity of the law with its effectiveness. By this the theory
separates jurisprudence from all types of sciences whether it is social science or
natural science. In this way, it can be said that the pure theory of law is theory of
positive law.

Normativity

A norm is a description of law or a statement that recognizes a standard which

includes imperative construction which signifies that a particular thing is ought to be
done, for example the one who commits murder ought to be punished. The specific
meaning of norm is something ought to be done or ought to be applied. As norms
have their own validity and ‗is‘ statement has true false nature, so therefore to say a

23
https://indianlawportal.co.in/pure-theory-of-law/
24
Hans Kelsen, What is the Pure Theory of Law, 34 TUL. L. REV. 269 (1959-1960).

27
norm ought to be applied or obeyed is valid. The logical doctrine of two basic
opposing element of ‗is‘ and ‗ought‘ refers to the impossibility of inferring from the
statement that something ought to be or to be done, the statement that something is or
is done, and vice versa. Pure Theory calls the basic norm: ―A norm the validity of
which cannot be derived from a superior norm we call a ‘basic’ norm‖25. There are
three functions of the norm:

1. Prescription or command
2. Authorization
3. Permission

The term ‗ought‘ indicates normative function when the above mentioned functions
are performed by the rule. According to pure theory of law, law is a norm or set of
norms, the meaning of norms is that something ought to be done that a person has to
behave in a certain way. Law is a coercive order it tries to consider human behavior
by rules attaching to the contrary behavior coercive acts as sanction. As sanctions are
result of wrong or acts done or committed by the human being towards other being
and that human behavior is condition of the sanction. As a condition of a sanction the
behavior is ―illegal‖, or to use a more adequate term, a delict. The individual whose
behavior is the delict is guilty of misdeed. The individual, against whom the sanction
is directed, is legally responsible for this behavior.

As Kelsen has always argued that a radical change is brought in the content of basic
norm by a successful revolution. For example in a legal system a law or a norm
enacted by the king is binding, at some point the situation will come wherein a
revolution will take place against it and a republican government is successfully
installed. On this point Kelsen observed that, ―one presupposes a new basic norm, no
longer the basic norm delegating authority to the revolutionary government‖. Here a
suspicion is raised that Kelsen himself has infringed categorical injunction between
‗ought‘ and ‗is‘. As Kelsen was aware of this problem so he suggested solution by
introducing international law as source of validity for changes in legal system‘s basic
norm. He mentioned that the sovereignty of a state is determined by the successful

25
R. S. Clark, Hans Kelsen‘s Pure Theory of Law, 22 J. LEGAL EDUC. 170 (1969).

28
control over a specified territory. But it was not clear that whether Kelsen really
adhered to it. This is how Kelsen has deliberately avoided the explanation and left
many questions unanswered. However he may be right about law but was also quite
wrong about nature of moral imperatives.

3.2 PURE THEORY OF LAW AND INDIAN CONSTITUTION

According to Kelsen, in “..every country there is a hierarchy of legal norms, headed

by what he calls as the `Grundnorm’..‖, here grundnorms is referred to the basic
norm. When there is a conflict relating to the legal norm between the higher layer and
lower layer of the hierarchy, then the former will prevail over the later. As the
jurisprudence is mother of all laws, similarly constitution is the supreme law of the
land which will always prevail over any other law, in India the hierarchy of legal
norms is as follows:

(i) The Constitution of India, as it is the supreme law of the land;

(ii) Laws made by Parliament or by the State Legislature;

(iii) Delegated legislation, which may be in the form of Rules made under the Statute,
Regulations made under the Statute, etc.;

(iv) Executive orders (not made under any legislation)

3.3 PURE THEORY OF LAW AND CONSTITUTION OF INDIA

Shifting of legal paradigm from ancient to colonial to modern legal system gives
Kelsen‘s pure theory of law a theoretical framework.[24] After Independence, When a
democratic country was to be formed, a need for standard and supreme law was felt
for co-ordination of people. Hence, a committee was formed for drafting the
Constitution of India that would confirm public welfare and public rights of the
society. It was drafted in such a manner that it is accepted and followed by everyone.

Constitution of India[25] is the supreme source of law in our country. Constitution is

accepted and followed by everyone in the country. It is the basis of legal order which

29
can be called as a Grundnorm that validates legal system of our country. It is believed
that all the laws made should comply with the principles mentioned in the
constitution. It is deemed that Grundnorm cannot be changed and it can only go
through a change when it is the basis of a political revolution. However, According to
Article 368 of Constitution, Parliament has the power to amend any part of the
constitution for the welfare of society to match the needs of changing nation.

Preamble of our constitution starts with ―WE, THE PEOPLE OF INDIA, having
solemnly resolved…‖, clearly shows the source of authority of the constitution.
Moreover it ends with ―…do HEREBY ADOPT, ENACT, AND GIVE OUSELVES
TO THE CONSTITUTION.‖ This shows that people of India have themselves
adopted and given themselves to the constitution. ―having solemnly resolved‖ means
people are obligated by the constitution without any exemption26. Preamble also
mentions ―given by the people to themselves.‖ Herein, Constitution abides by the test
of Grundnorm that demands pre-supposition.

One can also refer to the principle of constitutional morality, which mentions that one
is obligated to follow norms as mentioned in constitution and consider constitution to
be supreme. It also says there must not be any action that is arbitrary and thus,
violates the supreme law of land. This approach was explained in Naz Foundation vs.
Government of NCT, Delhi27, where criminalization of homosexuality created a
conflict between basis of morality and constitutional morality. It was held that, in
absence of compliance with constitutional morality, such laws will be invalidated.
Thus, Grundnorm is seen as an ideal method to avoid conflict based on morality28.

Article 37 of the Indian Constitution says that all the laws must obey the Directive
Principles provided in Part IV of the constitution and they shall form the basis of
governance of the country. But, in State of Madras vs. Smt. Champakam29, Supreme
Court overruled past government order and held that reservation at educational

26
Prantik Roy, Application of Kelson’s Theory in India, 7 International Research Journal of Commerce
and Law (2019).
27
Naz Foundation v. Government of NCT of Delhi, , Cri LJ 94 (2010).
28
Shybham Joshi, GRUNDNORM IN INDIA: A NEW PERSPECTIVE, 1 INTERNATIONAL
JOURNAL FOR LEGAL DEVELOPMENTS AND ALLIED ISSUES.
29
State of Madras vs. Smt. Champakam, , SCR 525 (1951).

30
institutions on the basis of caste violates fundamental right Article 29 of the
constitution. Herein, Supreme Court believed fundamental right to be the supreme law
of the country. Similarly in A.K. Gopalan vs. State of Madras30, Supreme Court
interpreted ‗procedure established by law‘ mentioned in Article 21 as any substantive
or procedural provision of enacted law. Herein, Court interpreted the law as it is and
not as what it ought to be. Reference to Kelsen‘s theory can also be found in parts
of Shrimati Indira Gandhi vs. Raj Narain And Ors31.

Article 13 of Constitution mentions that, no such law shall be made which is in

violation of fundamental rights. In Kesavnanda Bharti vs. State of Kerala32, It was
held that, yes, fundamental rights can be amended but they should not disrupt the
basic structure or framework of the constitution. In this case Supreme Court
introduced principle of basic structure. In the words of Sikri C.J ―The expression
‗amendment of this Constitution‘ does not enable the Parliament to completely
change the fundamental features of the Constitution so as to destroy its
identity33‖ Here again, Constitution of India fits under the purview of Grundnorm that
says there ought to be a basic rule and here, Constitution proves to be the ultimate
source of law.

In the case of Squadron Leader H.S. Kulshrestha vs. Union of India34, court clearly
mentioned Constitution of India to be Grundnorm of the nation. It held that
―According to the theory of the eminent jurist Kelson, in every country there is a
hierarchy of laws, and the highest law is known as the Grundnorm of law. In our
country the Grundnorm is the Constitution35.‖ Similar statement was provided in
another case of Abdur Sukur & Another v State of West Bengal & others, court
mentioned constitution as a Grundnorm of all Indian statutes.

30
A.K Gopalan vs. State of Madra, , SCR 88 (1950).
31
Indira Gandhi v. Raj Narain, , 33 AIR 69 (1977).
32
Kesavnanda Bharti vs. State of Kerala, supra note 22.
33
Prantik Roy, supra note 26.
34
Squandron Leader H.S. Kulshrestha vs. Union of India, Civil Miscellaneous Writ Petition No. 11829
Of 1999,
35
Rai, supra note 12

31
Pure Theory of Law and its incorporation under the Indian legal system

The fact that the Constitution of India may very well be amended indicates that it is
possible to deviate from the Constitution‘s authority. If a constitutional clause is
significantly changed, the laws that fall under it lose their legality. If a provision of
the Constitution is repealed, the result will be the same. As a result, calling the
Constitution the Grundnorm is incorrect. Given this background, the Grundnorm in
India should be found in the ―Basic Structure‖. The ―basic structure‖ of the Indian
Constitution can be considered the rule of recognition or grundnorm, which is really
the ultimate basis of a legal system since the legislation in the Constitution acquires
legitimacy from the basic structure‘s defined norms. The superiority of the
Constitution, India as a sovereign, socialist, secular, democratic, republic as in the
Preamble and a welfare state, the federal character of the Constitution, the unity and
integrity of the country, separation of powers between the legislature, the executive,
and the judiciary, and Part III of the Indian Constitution i.e. Fundamental Rights are
some of the major features of the basic structure36.

The notion of basic structure was highlighted in the case of Kesavananda Bharati v.
the State of Kerala 1973. The term ‗basic structure‘ refers to the area of the
Constitution in which the parliament has no authority to make changes. It is the
foundation of the ultimate recognition rule. This case supported the argument that any
rule or norm validating authority is the basic structure. In Indira Gandhi v. Raj
Narain (1975), the Supreme Court threw down clause 4 of Article 329-A, which was
introduced by the 39th Amendment, on the grounds that it was outside the amending
authority of the legislature since it was not in parlance with the Constitution‘s ―basic
structure.‖ Furthermore, the Hon‘ble Court decided in Minerva Mill & Ors. v. Union
of India (1980) that the Constitution‘s ―Basic Structure‖ include the limited ability of
Parliament to modify the Constitution, as well as maintaining harmony between
Fundamental Rights and Directive Principles. Furthermore, amendments cannot alter
the Constitution‘s ―Basic Structure.‖ As a result, the legal system of India closely
resembles the framework of the legal system proposed by Kelsen in his ―Pure Theory
of Law.‖

36
https://blog.ipleaders.in/pure-theory-law-exhaustive-
analysis/#:~:text=According%20to%20Kelsen%2C%20a%20%E2%80%9Cpure,not%20as%20it%20s
hould%20be.

32
 CHAPTER 4

KELSEN’S CRITICISM OF NATURAL LAW

Kelsen‘s explanation of normativity is intertwined with his criticism of natural law

theories, of which he feels his is the only viable alternative. According to Kelsen 37,
there is no explicit idea of legal validity in natural law. Moral validity is the only idea
of validity. Natural law theories, according to Kelsen, are conceptually confused: one
is secular, while the other is religious. Natural Law is logically binding and self-
evident, according to secular conceptions. According to religious views, these are
divine instructions that must be obeyed by humans. The fundamental principle of the
secular theory is that nature must be respected, whereas the fundamental principle of
the religious theory is that God must be respected.

Another critique levelled towards Natural Law by Kelsen is that its theories are
unscientific, and hence cannot be objectively proven. Kelsen‘s idea aims to isolate
what makes a law legal without having to consider morality. Kelsen establishes his
theory by distinguishing between the ―prescriptive‖ and ―descriptive‖ elements of
positive law. Kelsen dives deep into this idea in search of a ―prescriptive‖ component,
unlike Bentham and Austin, who tried to define how a legal system functions.

According to Australian lawyer Julius Stone38, because the fundamental norm is

evidently the most impure, the succeeding processes‘ purity must imitate the lower
norm‘s originating impurity. Some also criticise the pure theory for separating natural
law from law and excluding it.

Sir Lauterpacht, a former member of the United Nations‘ International Law

Commission and a judge of the International Court of Justice39, believes that Kelsen‘s
theory of natural law allows for the precedence of international law above state law.
According to American jurist Allen, sources of law such as custom, legislation, and

37
https://www.sec.gov/Archives/edgar/data/1169394/000108503705001442/laseragt.htm
38
https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-criticism/
39
https://www.jstor.org/stable/42891986#:~:text=In%20the%20first%20place%2C%20the,his%20earli
er%20English%20text%2C%20his

33
precedent are co-ordinate and do not allow for an organisation in Kelsen‘s
hierarchical structure.

Friedmann‘s objection is that Kelsen‘s pure science of law is insufficient in terms of

legal theory. Law is now overlapping areas that were formerly assigned to other social
disciplines such as Economics, Psychology, and Sociology. Critics also argue that a
single theory cannot rule over all of the world‘s legal systems. Because each legal
system has its unique set of laws and norms, the pure theory cannot be applied to all
legal systems. Another issue is that an abstract man-made theory cannot determine the
legal ramifications of a sudden change. It cannot contend with changing conditions
and scenarios posed by the legislation because of its limited reach.

In terms of effectiveness, there is no such criterion by which minimal effectiveness

can be determined. The notion is not viable in revolutionary conditions, according to
critics. There is no criterion by which the minimal effectiveness of a legal system can
be judged, and the efficacy of a legal system cannot be quantified by a theory. It left
out the social issues of morality and fairness, both of which have a role in efficacy.

While the pure theory has been extremely influential in terms of legal theory
generally, it has also been subjected to a great deal of criticism. Much of this criticism
has focused on the idea of the Grundnorm, the ―impure‖ aspect of the theory. John
Kelly, for example, observed how it is often remarked that Kelsen‘s model is forced,
―at the point of its initial hypothesis, into the sphere of those very elements—
psychology, ethics, social behaviour, and so on – which lower down the hierarchy of
norms are so rigorously excluded‖40. Margaret Davies has undertaken a
deconstruction of the Grundnorm with a view to exposing this lack of clarity, Her
view is that Grundnorm is ―a fiction not only because it contradicts reality (that is, it
does not exist), but also because it is self-contradictory‖41.

Davies bases her approach on an essay by Jacques Derrida, ―The Law of Genre‖, in
which Derrida points out that the definition of a genre, within which we can include
areas of knowledge, or any conceptual separation of one intellectual terrain from any

40
J.M. Kelly, op. cit., p.388.
41
M. Davies, Asking the Law Question (Sweet and Maxwell, Sydney, 1994), p.268.

34
other, depends upon there being some ―mark‖ or ―trait‖ which allows us to distinguish
or recognise the genre. The ―law of genre‖ determines what falls within the genre, and
what falls outside42. Davies observes that the Grundnorm is a different kind of norm
to other norms but, at the same time, ―it is a part of every law: it is in a sense the most
legal thing, because it is the essence of law. The basic norm must be at once both
internal and external to law, legal and non-legal. And because it is at the heart of what
it is to be law, and is reproduced in every law, there is a non-legal dimension of every
law… [W]hatever is ‗inside‘ the limit of law is there only because of the mark or
‗trace‘ left there by the ‗outside‘. In other words, the outside can not be kept entirely
out, and nor is the inside ever entirely in43.‖

Davies concludes that the identity of law is reliant on a general principle, the
Grundnorm or basic norm, which is ―itself neither legal nor non-legal, representing a
limit or finality which is, however, always requiring that more questions be asked‖44.

J.W. Harris notes that Kelsen‘s ideas about a change of the basic norm have been
criticized for making efficacy the only test for legal recognition of revolutions:
―Surely, it has been argued, lawyers take other things into account—such as the
justice of the revolutionary cause, or the approval, or disapproval of the populace—
not just the fact of enforcement? Whether Kelsen, or his critics, correctly describe
what lawyers do in such contexts is a question for historians 45.‖ While it does seem
that at one time Kelsen was thought to hold that lawyers and others should recognize
a new regime when it is effective, this view cannot be sustained as a correct
interpretation of the pure theory. Harris is accurate in remarking that Kelsen‘s theory
is purely descriptive in this regard – Kelsen cites only cases of successful revolution;

42
See J. Derrida, ―The Law of Genre‖ (1980) Glyph: Textual Studies 7, 202.
43
M. Davies, op. cit., pp.267–268 (emphasis in original).
44
ibid., p.268. Davies proposes a somewhat similar approach in relation to H.L.A. Hart‘s ―rule of
recognition‖. She notes the conceptual difficulty with a theory that involves officials recognising the
rule of recognition, which is itself what recognises them as officials: ―There is therefore a problem of
what Derrida often calls ‗undecideability‘ precisely at the line of demarcation between law and non-
law, where positivist theory ought to be most certain.‖ ibid.
45
J.W. Harris, op. cit., p.79.

35
in other words, Kelsen‘s theory of a change of the basic norm amounts to ―might is
Law‖ rather than ―might is right‖46.

Although Kelsen was never able to respond completely and satisfactorily to his
theory‘s critics in relation to all the questions raised about the basic norm, we should
remember that he argued that the basic norm is valid because it is ―presupposed‖ to be
valid, and that it is presupposed to be valid because without this pre-supposition, no
human act could be interpreted as a legal, especially as a norm-creating act. This is
not the same as suggesting, as Davies does, that the basic norm is the ―most legal
thing‖ or the ―essence of law‖. The key to understanding the basic norm, at least from
Kelsen‘s perspective, is to see it primarily in functional terms, that is, functional in
relation to knowing and describing law. As we saw earlier, Kelsen views the basic
norm as ―[existing] in the juristic consciousness‖ and so the idea is tied to Kelsen‘s
neo-Kantian epistemology, which shapes the pure theory by systematically charting
the background assumptions of the jurist‘s recognition of binding legal norms.

This epistemology, however, has also been questioned. Why, for example, must the
validity of a legal norm be derived in the manner described by Kelsen, that is, through
the category of imputational links rooted in the basic norm? Stanley Paulson has
argued that Kelsen‘s neo-Kantian argument fails as a methodological grounding in the
legal sphere because Kelsen does not demonstrate that this is the only way to
understand the validity of law. It is possible, for example, that a shared value-system
– some notion of justice or morality—underlies the statements of jurists concerning
validity, in addition to, or instead of, reasoning by imputational links47. In short, as
Dhananjai Shivakumar remarks, ―Kelsen does not prove that the discovery of the role
of imputation leads ineluctably to his account of the chain of validity48.‖

46
ibid.
47
See S.L. Paulson, ―The Neo-Kantian Dimension of Kelsen‘s Pure Theory of Law‖ (1992) 12 Oxford
Journal of Legal Studies 311. Paulson has written extensively on the pure theory. For other examples of
his work, see ―Kelsen‘s Legal Theory: The Final Round‖ (1992) 12 Oxford Journal of Legal Studies
265 and his introductory essay in Introduction to the Problems of Legal Theory. An advanced
discussion of Kelsen‘s work can also be found in Normativity and Norms (S. Paulson and B. Paulson
eds., Clarendon Press, Oxford, 1998).
48
D. Shivakumar, op. cit. at 1395.

36
Shivakumar draws on Paulson‘s arguments in his own defence of Kelsen‘s theory.
According to Shivakumar, the pure theory should be detached from its neo-Kantian
basis and instead viewed as an ―ideal type‖, a concept developed by Max Weber.
Generally speaking, an ideal type is a conceptual structure that does not depend either
on universal applicability or on correctness; instead its success lies in its usefulness as
a device with which to analyse particular historical cases. Shivakumar‘s view is that
once Kelsen‘s ―elegant, one-sided model‖ is freed from its aspiration to provide the
one correct reconstruction of legal systems, full purity is possible because what he
regards as its ―most serious compromise‖—its use of a criterion of minimal
effectiveness—can be eliminated. We referred earlier to that part of the pure theory
which holds that a legal norm, to be valid, must be effectively applied. Shivakumar
considers this appeal to ―the realm of observable behaviour‖ as tarnishing the purity
of Kelsen‘s model by introducing the uncertainty that necessarily attaches to any
inquiry as to whether a norm has fallen into desuetude. ―A pure concept of legal
validity need not be compromised by a concern with effectiveness.

37
 CHAPTER 5

KELSEN’S VIEWS ON INTERNATIONAL LAW

International law, according to Kelsen49, is a component of the legal system as a

whole. As a single ultimate legal system, international law has been recognised. As a
result, all national norms should be viewed as subservient to international legal order,
the validity of which is defined by an international law basic norm. It is sufficient for
international law to be presupposed by the basic rule of power. Grundnorm, it doesn‘t
need to exist. Kelsen was able to understand that the state is not an isolated entity and
that it might have greater political allegiance by rejecting sovereignty. Kelsen‘s
principal goal in developing this theory was to build a generally accepted theory that
could be applied to all legal systems. According to Kelsen, a legal standard should be
recognised universally. It should serve as a benchmark for all legal systems. In terms
of making his norm applicable to all legal systems, Kelsen dismisses the pluralistic
approach and embraces a monist viewpoint.

5.1 IMPLICATIONS OF PURE THEORY OF LAW

No difference between Law and the State

Kelsen rejects the sovereign‘s50 existence as a distinct entity. He also disputes the
existence of the state as a separate entity from the law. In its ideal form, the state
would be neither more nor lesser than the law, an object of normative juristic
knowledge. A system of normative connections is referred to as a law. All legal
personality is created artificially and derives its legitimacy from a higher standard.
According to Kelsen, the idea of a person is nothing more than a phase in the
concretization process. The most important aspect of Kelsen‘s philosophy is that the
state is regarded as a ―system of human conduct and a compulsive order.‖ Kelsen
further argued that because legislative, executive, and judicial systems all create
norms, there is no distinction between them. For Kelsen, the distinction between
procedural and substantive law is a matter of degree, with the procedure taking

49
https://www.cambridge.org/core/journals/israel-law-review/article/abs/on-the-pure-theory-of-
law/5CC1B2C9A085AC3655AFBEDB7A3F6511
50
https://plato.stanford.edu/entries/lawphil-theory/

38
precedence. The state is, in actuality, a mechanism that regulates social behaviour in a
normative order. However, only a judicial system can uncover such a scheme. In
reality, law and state are the same things, and the distinction arises because we study
them from two different perspectives.

No difference between public and private law

The contrast between public and private law is another important characteristic of the
hierarchical organisation of law. According to Kelsen, because every law gets its
force from the same Grundnorm, there is no distinction between public and private
law. They cannot be distinguished on the basis that they safeguard various types of
interests. In the public interest, private interests are preserved. He identifies this
divergence as the result of a political philosophy that aims to ―elevate public law and
justice authoritarianism.‖

No difference between Natural and legal personalities

Kelsen does not distinguish between natural and legal beings. There is no distinction
between physical and legal beings. In law, he defines ‗personality‘ as an individual
who is able to bear rights and obligations. All legal personalities are fictitious and
derive their validity from superior norms.

No Individual rights

Individual rights, according to Kelsen, do not exist in law. The ‗essence of law‘ is
legal obligations. Law is always a necessary system in a state. He believes that the
notion of right is not fundamental to a legal system. A legal right is just a
responsibility as regarded by the person who has the authority to demand that it
should be fulfilled.

39
CONCLUSION

Kelsen gave the legal theory a new dimension by forcing us to consider the
distinction, as well as the relationship, between fact and norm, between legislation
and its normative impact. Kelsen proposed an internally consistent model of the
judicial process that, in some ways, mirrors attorneys‘ and legislators‘ intuitive
reasoning. It is standard legal logic to trace a law‘s legality back to the constitution.
The notion that valid laws constitute an internally coherent system of laws is also
flawed. Unlike his predecessors, Kelsen‘s approach recognised the laws of primitive
communities as well as the international community as law. Kelsen‘s theories are
frequently criticised for their ideas and internal coherence. But, he has written the
most enlightening account of the legal process of the century. Despite the fact that
none of his special doctrines have received universal approval, some have made their
way into general legal theory. His half-truths and obvious fallacies shaped the
evolution of jurisprudential thought as well.

Critics may doubt his theory‘s ability to describe legal systems as they currently exist.
Some types of laws are difficult to account for using Kelsen‘s concept of law as a
standard with a punishment attached. Procedural and evidential laws, laws
establishing organisations, laws awarding freedoms and rights, and laws cancelling
other laws all fit into the pure theory uneasily. At this point in history, his arguments
for the logical coherence of international and national legal regimes are unconvincing.
Kelsen‘s ideas of law have undeniably improved the subject of jurisprudence, despite
being complicated and imprecise in several areas and receiving numerous critiques.

In Jurisprudence there are hardly some of the theories which create confusion in the
minds of the scholars, one of them is the theory given by Hans Kelsen‘s ‗Pure theory
of law‘. According to various scholars Kelsen‘s theory on legal normativity has never
been clear. Kelsen observed that various legal positivist recognize the normative
orders such as moral orders etiquette as law but to him it was not law, for him the law
is norms which are part of legal order unless they have been incorporated into law by
reference. He believed that the law is a coercive order, as it encourages or brings out
the behavior of human by attaching rules to the contrary behavior coercive acts as
sanction.

40
REFERENCES

1. https://www.lawnotes4u.in/pure-theory-of-law-by-hans-kelsen-jurisprudence/

2. https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-
criticism/

3. To date, the only complete biography published was written by Kelsen‘s

former student and assistant Rudolf Aladár Métall, Hans Kelsen: Leben und
Werk (Deuticke, Vienna, 1969). For a brief sketch based on this work, see N.
Bersier Ladavac, ―Hans Kelsen: Biographical Note and Bibliography‖ (1998) 9
European Journal of International Law 391.

4. H.L.A. Hart, ―Kelsen Visited‖ (1963) 10 UCLA Law Review 709 at 728; G.
Hughes, ―Validity and the Basic Norm‖ (1971) 59 California Law Review
695 at 695

5. H. Kelsen, Introduction to the Problems of Legal Theory, p.1.

6. ―His influence was greatest in German-speaking countries, where he is still

widely discussed, in Latin America, where he was hailed as a defender of a
nonideological treatment of law against natural law theory, and in Japan and
Korea, where he is considered to be the model of European legal theory. He is
one of the few continental legal theorists to be widely known in the English-
speaking world …‖. M. Hartney, ―Hans Kelsen‖ in The Philosophy of Law: An
Encyclopedia (C.B. Gray ed., Garland, New York, 1999), p.480.

7. H. Kelsen, Reine Rechtslehre: Einleitung in die rechtswissenschaftliche

Problematic (Deuticke, Vienna, 1934); Introduction to the Problems of Legal
Theory (B.L. Paulson and S.L. Paulson trans., Clarendon Press, Oxford, 1992).
A substantial part of the 1934 book did appear in English in 1934–35 as ―The
Pure Theory of Law: Its Method and Fundamental Concepts‖ (C.H. Wilson
trans.): (1934) 50 Law Quarterly Review 474 and (1935) 51 Law Quarterly
Review 517.

41
8. M. Hartney, ―Hans Kelsen‖, p.478. It is important to note, however, that
Kelsen did not ignore or reject the idea of the ―philosophy of law‖. Nearly one
hundred of the 387 titles in Robert Walter‘s definitive bibliography of
Kelsen‘s works are on—or relate to – the pure theory, but Kelsen also wrote
extensively on subjects such as theories of justice, Austrian constitutional law,
public law, international law, political and social theory, and the parliamentary
system and democracy. See R. Walter, Hans Kelsen: Ein Leben im Dientse der
Wissenschaft (Manz, Vienna, 1985).

9. H. Kelsen, General Theory of Law and State (Harvard University Press,

Cambridge, Mass., 1945).

10. H. Kelsen, Reine Rechtslehre (Deuticke, Vienna, 1960); Pure Theory of Law
(M. Knight trans., University of California Press, Berkeley, 1967).

11. H. Kelsen, Allgemeine Theorie der Normen (Manz, Vienna, 1979); General
Theory of Norms (M. Hartney trans., Clarendon Press, Oxford, 1991). The
1991 volume contains a bibliography of Kelsen‘s publications in English.
Other restatements and summaries of the pure theory by Kelsen include ―What
is the Pure Theory of Law?‖ (1960) 34 Tulane Law Review 269 and ―On the
Pure Theory of Law‖ (1966) 1 Israel Law Review 1.

12. Morris R. Cohen, Philosophy and Legal Science', 32 COL. L. REV. 1103
(1932)

13. 1958 SC Ind 533

14. H. Kelsen, Pure Theory of Law (1967), p.1 (emphasis in original).

15. H. Kelsen, Pure Theory of Law (1967), pp.3–4 (emphasis in original).

16. D. Shivakumar, ―The Pure Theory as Ideal Type: Defending Kelsen on the
Basis of Weberian Methoology‖ (1996) 105 Yale Law Journal 1383 at 1390.

17. H. Kelsen, Pure Theory of Law, pp.4-5 (emphasis in original). There is a

broader description at the very outset of Kelsen‘s final work, the General

42
 Theory of Norms: ―The word ‗norm‘ comes from the Latin norma, and has
been adopted in German to refer primarily, though not exclusively, to a
command, a prescription, an order. Nevertheless commanding is not the only
function of norms: norms also empower, permit, and derogate‖ (p.1).

18. D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and
Hermann Heller in Weimar (Oxford University Press, Oxford, 1997), p.102
(emphasis in original).

19. M. Hartney, ―Hans Kelsen‖, p.479. John Kelly observes that for Kelsen the
entire legal system of any country is ―a mass of linked ought-propositions or
norms and nothing else; such a depiction of law ought to be called a ‗pure‘
theory of law because of its abstraction from everything else except the naked
norm; because it is a theory of law as it is, not as it ‗should‘ be (on some
standard perhaps of morals, or economic or social utility, matters whose value
Kelsen does not deny, but which are extraneous to the law itself and to legal
science properly so-called)‖. A Short History of Western Legal Theory
(Clarendon Press, Oxford, 1992), p.385.

20. J.W. Harris, Legal Philosophies (2nd ed., Butterworths, London, 1997), p.69.

21. H. Kelsen, General Theory of Law and State, p.116.

22. ibid., p.117.

23. https://indianlawportal.co.in/pure-theory-of-law/

24. Hans Kelsen, What is the Pure Theory of Law, 34 TUL. L. REV. 269 (1959-
1960).

25. R. S. Clark, Hans Kelsen‘s Pure Theory of Law, 22 J. LEGAL EDUC. 170
(1969).

26. Prantik Roy, Application of Kelson’s Theory in India, 7 International Research

Journal of Commerce and Law (2019).

27. Naz Foundation v. Government of NCT of Delhi, , Cri LJ 94 (2010).

43
28. Shybham Joshi, GRUNDNORM IN INDIA: A NEW PERSPECTIVE,
1 INTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND
ALLIED ISSUES.

29. State of Madras vs. Smt. Champakam, , SCR 525 (1951).

30. A.K Gopalan vs. State of Madra, , SCR 88 (1950).

31. Indira Gandhi v. Raj Narain, , 33 AIR 69 (1977).

32. Kesavnanda Bharti vs. State of Kerala, supra note 22.

33. Prantik Roy, supra note 26.

34. Squandron Leader H.S. Kulshrestha vs. Union of India, Civil Miscellaneous
Writ Petition No. 11829 Of 1999,

35. Rai, supra note 12

36. https://blog.ipleaders.in/pure-theory-law-exhaustive-
analysis/#:~:text=According%20to%20Kelsen%2C%20a%20%E2%80%9Cpu
re,not%20as%20it%20should%20be.

37. https://www.sec.gov/Archives/edgar/data/1169394/000108503705001442/lase
ragt.htm

38. https://lawcorner.in/kelsens-pure-theory-of-law-objectives-essential-and-
criticism/

39. https://www.jstor.org/stable/42891986#:~:text=In%20the%20first%20place%
2C%20the,his%20earlier%20English%20text%2C%20his

40. J.M. Kelly, op. cit., p.388.

41. M. Davies, Asking the Law Question (Sweet and Maxwell, Sydney, 1994),
p.268.

42. See J. Derrida, ―The Law of Genre‖ (1980) Glyph: Textual Studies 7, 202.

44
43. M. Davies, op. cit., pp.267–268 (emphasis in original).

44. ibid., p.268. Davies proposes a somewhat similar approach in relation to

H.L.A. Hart‘s ―rule of recognition‖. She notes the conceptual difficulty with a
theory that involves officials recognising the rule of recognition, which is itself
what recognises them as officials: ―There is therefore a problem of what
Derrida often calls ‗undecideability‘ precisely at the line of demarcation
between law and non-law, where positivist theory ought to be most certain.‖
ibid.

45. J.W. Harris, op. cit., p.79.

46. ibid.

47. See S.L. Paulson, ―The Neo-Kantian Dimension of Kelsen‘s Pure Theory of
Law‖ (1992) 12 Oxford Journal of Legal Studies 311. Paulson has written
extensively on the pure theory. For other examples of his work, see ―Kelsen‘s
Legal Theory: The Final Round‖ (1992) 12 Oxford Journal of Legal Studies
265 and his introductory essay in Introduction to the Problems of Legal
Theory. An advanced discussion of Kelsen‘s work can also be found in
Normativity and Norms (S. Paulson and B. Paulson eds., Clarendon Press,
Oxford, 1998).

48. D. Shivakumar, op. cit. at 1395.

49. https://www.cambridge.org/core/journals/israel-law-review/article/abs/on-the-
pure-theory-of-law/5CC1B2C9A085AC3655AFBEDB7A3F6511

50. https://plato.stanford.edu/entries/lawphil-theory/

45