Hans Kelsen's Pure Theory of Law

Hans Kelsen's Pure Theory of Law

• Kelsen's theory views law as a system of norms, structured hierarchically.
• A core concept is the Grundnorm, a foundational norm validating the entire legal order.
• This Grundnorm isn't a traditional norm but a presupposition crucial for legal validity.
• The Grundnorm establishes the validity of subsequent legal norms, like constitutional provisions and statutes.
• Kelsen highlights the normative nature of law, linking legal norms to prescribed or prohibited actions.

Hierarchical Structure of Legal Norms

• Kelsen's theory depicts a hierarchical legal norm structure, akin to a pyramid.
• The Grundnorm sits atop, followed by the constitution, statutes, regulations, and finally, judicial decisions.
• Each norm's validity stems from the norm above it in the hierarchy.
• Conflicting norms are resolved by prioritizing the higher norm.
• This hierarchy manages conflicts between different legal levels.

Separation of Law and Morality

• Kelsen's theory distinctly separates law from morality.
• Legal norm validity isn't contingent on moral content or justice.
• Law comprises norms enforced by institutions and sanctions, unrelated to inherent moral worth.
• External evaluation of laws, regarding justice or morality, is possible, but irrelevant to the internal validity of the legal system.

Elements of Legal Validity

• Kelsen's theory focuses on the formal aspects of validity, not content.
• A norm is valid if derived from higher-status norms, ultimately tracing back to the Grundnorm.
• A norm's content, morality, or social utility aren't directly linked to its validity.
• Validity arises from the process of norm creation, the legal procedures involved.
• This approach emphasizes the procedural aspects of law, how a norm is created, rather than its inherent desirability.

Critique of Kelsen's Model

• Critics find the Grundnorm to be an abstract concept, lacking concrete basis.
• The theory's emphasis on formal validity is criticized for potentially legitimizing unjust laws.
• Separating law from morality is controversial; critics contend this overlooks the moral foundations of a just legal system.
• Kelsen's theory is criticized for its perceived detachment from social reality, ignoring the societal impact of laws, related interests, and the factors motivating their creation.

Explore Hans Kelsen's Pure Theory of Law, which defines law as a structured system of norms led by the fundamental Grundnorm. This quiz delves into the hierarchical relationship among legal norms, stressing the normative function that validates the entire legal order.