Kelson’s pure Theory of Law and its criticism

Kelson’s pure Theory of Law and its criticism

Table of Contents

Kelson’s pure Theory of Law

HANS KELSON [1881-1973]:

  • at Vienna University.
  • Judge of the supreme constitutional court of Austria.
  • His theory also known as the Vienna school of legal thought.
  • The theory also known as the theory of interpretation was a reaction against various ideologies.
  • The pure theory of law means law should be separated from other social science.

Law as a normative science

  • He described the law as a normative science as distinguished from natural sciences.
  • to him, a theory of law should be uniform. It should be applicable at all times and in all places.
  • Kelson’s theory based on norms and grundnorms. And acc. to him “Law is a primary norm which stipulates sanction”.
  • For him, legal order is the hierarchy of norms having sanction and jurisprudence is the study of those norms which comprise legal order.

criticism

  • Lauterpacht’s criticism – Primacy of international law over state law is a back door entry permitted by Kelsen’s theory to natural law.
  • Allen’s criticism – Sources of law like custom, statute, and precedent are co-ordinate and do not admit of arrangement in a hierarchical pattern adopted by Kelsen.
  • Friedmann’s criticism – Pure science of law by Kelsen is inadequate from point of view of legal theory. The sphere of law is now intersecting spheres traditionally allotted to other social sciences like Economics, Psychology, and Sociology.

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