Hans Kelsen and the Pure Theory of Law

Think of a bank clerk who approves your loan. Why is his signature valid? Because the branch manager authorised him. Why can the manager do that? Because the board delegated the power. Why does the board have power? Because the articles of association say so. And why do the articles bind anyone? At some point the questioning stops, and everyone simply assumes that the founding document is to be followed. Kelsen saw every legal system in this way: a chain of authorisations, each link valid because a higher link permits it, ending in a starting assumption that cannot itself be proved. He called that assumption the Grundnorm, the basic norm.

Figure: Kelsen's hierarchy of norms: each level is valid because a higher norm authorises it, and validity is traced upward to the presupposed Grundnorm

1. Kelsen: Life, Works and Roots

Born in Prague in 1881, Kelsen taught in Vienna, where he led the Vienna school of legal theory. He was the principal architect of the Austrian Constitution of 1920, which created the first centralised constitutional court, a single specialised court with exclusive power to annul unconstitutional laws, on which he himself sat. This 'Austrian model' of review, unlike the American model in which every court may disregard an unconstitutional law, has spread across Europe and beyond. Driven out by Nazism, he settled in the United States and died at Berkeley in 1973. His main works are the Pure Theory of Law (Reine Rechtslehre, 1934; enlarged second edition 1960) and the General Theory of Law and State (1945).

Kelsen's roots lie in Continental neo-Kantian philosophy, not in the English utilitarian tradition of Bentham and Austin. From Kant he took the sharp division between facts and values, and the idea that knowledge rests on presuppositions of thought.

2. The Meaning of Purity

The theory is pure because it aims to describe law and nothing but law. It is free of ethics: it asks whether a law is valid, not whether it is just. It is free of politics: it neither praises nor condemns any legal order, democratic or autocratic. It is free of sociology: it does not ask what social forces produced a law or what effects it has. And it is free of psychology: it does not explain law as the will of a lawgiver or the fear of the subject. What remains is the pure structure of legal norms: a theory of positive law in general, not of any particular system and not a programme of reform. Purity is a demand on the science of law, not a denial that laws have political causes and social effects.

3. Sein and Sollen: Imputation versus Causality

Following Kant, Kelsen distinguished the world of Sein (is), the world of natural facts governed by causality (if iron is heated, it expands), from the world of Sollen (ought), the world of norms. A legal norm does not say that something will happen but that it ought to happen. Its basic form is a hypothetical judgment: if A (a condition, such as theft), then B (a sanction, such as imprisonment) ought to be.

Kelsen called this link imputation (Zurechnung). It differs from causality in two ways. A causal law is falsified if the effect fails to follow; a norm is not falsified when it is disobeyed, for many thieves go unpunished and the norm stays valid. And a causal chain runs on without end, whereas imputation stops at the point where the sanction is attached to the conduct. Jurisprudence is therefore a normative science.

4. The Legal Norm, the Sanction and the Coercive Order

What distinguishes a legal norm from a moral one is not its content but the sanction. Law is a coercive order: a system of norms providing for coercive acts (punishment, civil execution) as the reaction to certain conduct, organised by the community itself.

From this came a striking reversal. We usually think the essential norm is the one addressed to citizens: 'do not steal'. For Kelsen the primary norm is the one addressed to officials, stipulating the sanction: 'if a person steals, the judge ought to impose imprisonment'. 'Do not steal' is only a secondary norm, derived from the primary one. Hart used the same words the other way round: his primary rules are duty-imposing rules addressed to citizens, his secondary rules are rules about rules. Note also that the sanction makes a norm legal, but a norm is valid because a higher norm authorised its creation, not because force stands behind it.

5. The Hierarchy of Norms and Concretisation

Legal norms are arranged in a hierarchy (Stufenbau, a structure of steps), a doctrine Kelsen developed with his pupil Adolf Merkl. A lower norm is valid because it was created in the way a higher norm prescribes: a judgment under a statute, a statute under the Constitution, delegated rules under the parent Act. Law, in Kelsen's phrase, regulates its own creation.

Seen from the top down, the hierarchy is a process of concretisation. The Constitution lays down the most general norms, statutes make them more specific, regulations more specific still, and at the bottom a judgment or administrative order creates an individual norm ('A ought to pay B one lakh rupees'), finally carried out by execution. Every step is at once the application of a higher norm and the creation of a lower one, so a judge applying a statute also creates law. Only the two ends of the chain are different: the Grundnorm is only presupposed, never applied from above, and the final act of execution only applies, creating no further norm.

6. The Grundnorm

The chain of validity cannot go on for ever. Eventually one reaches the historically first constitution, produced perhaps by a revolution or a constituent assembly, which no earlier legal norm authorised. Its validity cannot come from a higher positive norm, because there is none. Legal thought therefore presupposes a basic norm: that one ought to behave as the historically first constitution prescribes. This is the Grundnorm.

Three features are constantly misstated. First, it is presupposed, not posited: no legislator made it and it appears in no statute book. Kelsen called it a transcendental-logical presupposition, and late in life described it as a fiction. Second, it is not the Constitution itself: the Constitution is the highest positive norm, while the Grundnorm is the unwritten presupposition that the Constitution ought to be obeyed. Third, it has no content beyond conferring authority; it does not say the Constitution is just.

7. Validity and Efficacy

Validity means that a norm binds because it was created as a higher norm prescribes. Efficacy means that it is by and large obeyed and applied. A single law may be valid though often broken, as speed limits are; its validity does not depend on each driver's obedience. But the Grundnorm is presupposed only for a legal order that is by and large efficacious; if the order as a whole ceases to be obeyed, it can no longer be presupposed. Kelsen's formula: efficacy is a condition of validity, not its reason. He also accepted that a norm long unapplied may lose validity by desuetude.

8. Revolution and the Grundnorm: the Coup Cases

A revolution, in the legal sense, is any change of the constitution not made in the way the old constitution prescribes. If it succeeds and the new order becomes by and large efficacious, legal science presupposes a new Grundnorm; if it fails, the revolutionaries' acts are crimes under the old order. Kelsen offered this as a description for legal scientists, but courts tried to use it as a rule of decision.

9. Rights, the State and International Law

Rights as the reflex of duties. Duty comes first: a person has a legal duty when the opposite conduct is the condition of a sanction. A right is only the reflex of another's duty, and a right in the technical sense exists where the law gives a person the legal power to set the sanction in motion, as by bringing a suit.

State and law are identical. The State is not a power standing behind law but the national legal order personified. Acts of the State are human acts imputed to the legal order, so the question whether the State is bound by law dissolves, and with it Austin's sovereign above law.

International law. Kelsen treated international law as true law, a decentralised coercive order whose sanctions are reprisals and war. He was a monist: international and national law form one system. But he held that legal science cannot itself decide between the primacy of international law and the primacy of national law; either construction is possible, and the choice is political. Kelsen personally preferred international primacy, which suited his hopes for peace, but did not claim the pure theory proves it.

10. Kelsen, Austin and Hart Compared

Kelsen replaces Austin's person of the sovereign with a norm. He shares Hart's picture of a system of norms with an ultimate criterion of validity, but his Grundnorm is a presupposition of thought, while Hart's rule of recognition is a social fact. See Notes 62 and 63.

11. Criticisms and Contribution

Against this stands a large contribution: the clearest account of validity and of the unity of a legal system, the logic behind every doctrine of ultra vires and judicial review, the insight that judges create individual norms, a secure footing for international law, and a model of constitutional court that has outlived every criticism of the theory.

12. The Indian Angle

Indian judgments and textbooks often call the Constitution of India the 'grundnorm'. As loose speech this is harmless, but on Kelsen's own terms it is inaccurate: the Constitution is the highest positive norm, and the Grundnorm is the presupposition that it ought to be obeyed. The hierarchy itself fits Indian law well. A rule beyond its parent Act is void; a statute conflicting with the Constitution is void (Art. 13, and the division of legislative power in Part XI); a judgment is valid because the Constitution and procedural codes empower the court. Every doctrine of ultra vires is Stufenbau in action.

Two comparisons are useful as academic discussion, not as statements of what courts relied on. Art. 395 repealed the Indian Independence Act 1947 and the Government of India Act 1935, so the Constitution claims no British statutory source: in Kelsenian language, a peaceful legal break and a new basic norm. And the basic structure doctrine can be compared to a higher step within the hierarchy.

13. Frequently Asked Questions

Q. Why is Kelsen's theory called pure?
A. Because it describes law purely as a system of norms, free of ethics, politics, sociology and psychology. It asks whether a norm is valid, not whether it is just, what caused it or what effects it has.

Q. Is the Constitution the Grundnorm?
A. Not on Kelsen's own terms. The Constitution is the highest positive norm. The Grundnorm is the presupposed, unwritten norm that one ought to behave as the historically first constitution prescribes.

Q. Did Kelsen say international law is superior to national law?
A. He held that the two form one system (monism), but that legal science cannot decide whether international or national law has primacy; that choice is political. He personally preferred the primacy of international law.

Q. What happens to the Grundnorm after a revolution?
A. If the revolution succeeds and the new order becomes by and large efficacious, legal science presupposes a new Grundnorm for it; if it fails, the revolutionaries' acts remain crimes under the old order. Courts applied this in State v Dosso and ex parte Matovu, but Asma Jilani later held that effectiveness alone cannot legitimise an usurper.

See also: Note 2 (jurisprudence as a normative science), Note 11 (analytical school), Note 38 (sovereignty), Note 39 (State and law), Note 62 (Austin versus Kelsen), Note 63 (Hart versus Kelsen).