Hans Kelsen

An explicitly rational approach to understanding law was promoted by Hans
Kelsen (1881-1973), whose pure science of law has been treated as the highest
development of analytical positivism, but is now seen in a different light.82 In
his Kantian quest for ‘pure theory’,83 Kelsen searched for formal elements as
concepts of the human mind to understand the structure of legal systems and,
ultimately, of law. His approach rejects both legal positivism, because it confuses
lawwith fact, and natural lawtheory, because it confuses lawwith morality
(Freeman, 2001: 256), totally isolating law from ethics, politics, sociology, history
and religion for the purposes of his ‘pure’ theory.84 Kelsen’s approach
focused on jurisprudence as a science of ‘norms’ or normative propositions
with their own hierarchy.85 Freeman (2001: 256) explains:
For Kelsen, the law consists of norms: a norm cannot be derived from
facts, but only from other norms. The relationship between norms is one
of ‘imputation’, not causality . . . [N]ormative science, such as law or
ethics, is concerned with conduct as it ought to take place, determined
by norms.86
Kelsen saw norms as expressing expectations, not facts. A norm in his scheme
is therefore not an ‘is’, but an ‘ought’. Law then becomes a normative order
regulating human conduct in a particular way. Kelsen argued that norms exist
within systems of norms and derive their validity from being part of a system.
Arguing that norms derive their validity from other norms, Kelsen developed
the famous concept of ‘basic norm’ (Grundnorm), asserting that in every legal
system a hierarchy of norms is traceable to the most basic of norms. Kelsen
accepted that such a norm could take different forms, and even acknowledged
that there could be more than one Grundnorm, though he argued that a legal
system could not be founded on two conflicting basic norms. This may suggest
that his understanding of ‘legal system’ lacked sufficient attention to the internal
plurality of legal traditions and their multivalence (Glenn, 2004: 347ff.).
In Kelsen’s model, the basic norm ultimately must be extra-legal because by
definition it does not depend on another legal norm.87 Thus law is shown to
be dependent on socio-cultural factors, but Kelsen remained silent about this
aspect. Freeman (2001: 265) comments that legal science has ‘reached the stage
where it is pointless to look for further legal justification. And this is what
Kelsen recognises’. Such comments are based on strict theoretical discussions
of what is ‘legal’, with no attempt to reflect socio-political reality.
Kelsen’s theory of law was used in Commonwealth countries, prominently
Pakistan, Uganda and Southern Rhodesia, where the legality of revolutionary
movements was at issue or newly empowered usurpers sought to legitimise
their rule through Kelsen’s theory of law.88 Kelsen himself was appalled that
his ‘pure’ theory was applied for such political purposes in ways which he
had not foreseen.89 He insisted that his theory of law was merely a theory, but
obviously had no control over howhis attractive modelwould be used by judges
in courts of law under political pressure. Kelsen has intellectually excited many
commentators. Freeman (2001: 276) remains impressed with Kelsen’s learning,
but partly unclear about what he was trying to say through his ‘pure’ science
of law.Morrison (1997: 350) respects Kelsen’s project and his ‘desire to protect
the language game of the jurisprudent from being sucked into ideology’.
Â…
82 For a detailed discussion of Kelsen and the pure theory of law, see Morrison (1997: 323-
50) and Freeman (2001: 255-330). The earlier view of Kelsen as a ‘positivist of positivists’
(p. 256, n. 6) has been revised, since Kelsen distinguished ‘is’ and ‘ought’, but largely
ignored the ‘ought’ for his ‘pure’ analysis.
83 Kant’s approach to the theory of knowledge sounds postmodern, in that he taught that
‘the objective world is transmuted by certain formal categories applied to it by the mind
of the onlooker’ (Freeman, 2001: 255). In other words, all perceptions are subjective and
‘constructed’. See Kant (1965).
84 Freeman (2001: 257) notes that ‘Kelsen is not disinterested in justice or sociology or
psychology’ but he evidently had no ambition to solve real legal problems through his
theory.
85 He also emphasises their dynamic character (Freeman, 2001: 263), but by wishing to
restrict his theory to the ‘legal’, sets himself up for criticism: ‘A legal system is not an
abstract collection of bloodless categories but a living organism in a constant state of
movement’ (p. 264). To Kelsen, then, a legal system is much more than ‘law’ in his narrow
sense.
86 The concept of ‘imputation’ (German Zurechnung) signifies responsibility, more specifically
accountability, of the individual

Freeman (2001: 259). This is ‘a very troublesome feature of Kelsen’s system’ (Freeman,
2001: 264).
88 For Pakistan, see State v. Dosso, PLD 1958 SC 533. Further references are provided in
Freeman (2001: 268 n. 80). A useful explanation of the political use of Kelsen’s theory is
found in Harris (1980: 71-3).
89 Freeman (2001: 259) suggests that Kelsen avoided writing about the state, since he wanted
his theory to be relevant to all scenarios, even primitive contexts.

See Also

• Legal Systems
• Comparative Law Contents
• Code Law Systems
• Rules
• International Customary Law
• Rule of law
• Adversarial System
• Inquisitorial Legal System
• Legal Pluralism
• Legal Positivism

Hans Kelsen (1881–1973): Life and Work

Within the context of international law, this section explores the context, historical significance and the main work of Hans Kelsen (1881–1973).

Resources

Further Reading

• The entry “kelsen, hans (1881–1973)” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press