Hans Kelsen: the pure theory of law and the grundnorm

Hans Kelsen gave the pure theory of law. It is also called the Vienna school, because Kelsen was a product of Vienna University.

Two facts of Kelsen's own time drive the theory, and an answer that omits them misses why the theory has the shape it has.

1. The First World War, which destroyed the property of human beings at the international level. Kelsen's response was to give power to international law as a means of avoiding the destruction of the world.
2. The spread of written constitutions. Many countries adopted them in his lifetime, and the theory he built is the theory of a legal order with a written constitution at its head.

The intellectual problem is this. Austin traced the validity of a law to a person — the sovereign. But in a State with a written constitution the sovereign is himself constituted by law. What, then, does the validity of the whole order rest on, if not on another law?

Purity. Law is neither motive nor science in the ordinary sense; it is the science of norms. Only rules related to legal aspects are taken into the system. Moral rules, religious rules and ethical rules do not come within the concept.

The grundnorm. Grund means basic or great and norm means law: hence a great law, the superior authority from which law comes out. Kelsen compared the grundnorm with the written constitution, the highest authority in a country. In England the Parliament is the grundnorm; in the United States the written constitution is; and in India too the written Constitution is.

The hierarchy. The system of normative rules is a hierarchy. There is one highest authority and all the others are lower. The highest is the grundnorm in the form of the written constitution, and the source of power in the State for all bodies is that constitution.

Five features, which is the list to reproduce:

1. The grundnorm is the source of all law — in the form of a written constitution, or any body containing rules, or any such legal system in a country.
2. No difference between law and the State, because both get their power from the same grundnorm; law comes from the grundnorm and so does the State.
3. The sovereign is not a separate body. Austin says the sovereign is a politically superior person who keeps control over politically inferior persons. Kelsen says the power of the sovereign lies in the people, so the sovereign is neither separate from nor superior to them.
4. No difference between public and private law — public law relating to the State and private law to individuals; the law which creates a contract between individuals is private law, and Kelsen denies the distinction is a real one.
5. The supremacy of international law, which he advocated while conceding that it is in a primitive or immature stage, one day to become equal to municipal law and so enforceable.

The State does not stand above the grundnorm, and sovereignty itself lives in the grundnorm. Each country forms its grundnorm according to its local conditions. The duty of jurists is to interpret the grundnorm in their own language; they are not concerned with its goodness or badness, nor with its origin. That last sentence is the purity of the pure theory stated in its most testable form.

1. The grundnorm is a vague concept. It is not clear, and cannot be applied where there is no written constitution. And rules unconnected with morals, ethics, custom and religion are not the whole of what develops law.
2. International law is a weak law. Kelsen advocated its supremacy, but even now there is no force behind it.
3. Law and the State are not the same. Law is a separate thing from the State: the State is a body, and law is the rule that regulates it.
4. Public and private law do differ, and the denial does not hold in modern conditions.
5. Custom and precedent are not accommodated, while custom is the source of all law.

What survives. The concept of the grundnorm gave power to the public at large as well as at the national level, and Kelsen's main purpose was to stop the destruction of another world war.

| | Austin | Kelsen | |---|---|---| | Name of the theory | Command theory | Grundnorm theory | | Is a sanction required? | Yes | Yes — the resemblance between the two theories | | Where authority rests | In a determinate superior person or body | In the grundnorm; the power of the sovereign lies in the people | | Law and the State | Law is the command of the State's sovereign | No difference between law and the State; both derive from the grundnorm | | Public and private law | Distinguished | Not distinguished | | International law | Positive morality, not law | Law, and supreme, though immature |

• The set-piece — Explain the pure theory of law. What is the grundnorm? Give the two historical causes, purity, the hierarchy, the five features, the five criticisms.
• The comparison — Kelsen and Austin, in the table above. The examiner wants the resemblance stated as well as the difference: both require a sanction.
• The trap. Do not say Kelsen abolished sovereignty. He relocated it: sovereignty lives in the grundnorm, and the power of the sovereign lies in the people.