Main features of the pure theory of law

Main features of the ‘Pure Theory’ of Law. How it resembles with Austin’s command theory. Critically examine the view of Kelson given under pure theory of Law?

1. Introduction:-

The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna School” because Kelson is the founder of Vienna University. This theory resembles with Austin’s command theory because in Kelson’s theory there must be sanction behind law. Austin gave it the name of command theory and Kelson gave it the name of grand norm theory. Kelson is affected by local conditions, natural condition and international condition. After studying all these conditions he gave this theory of Law, which is known as pure theory of law and grand norm theory. 

2. Concept of pure theory of Law:-

At the time of Kelson there are Ist world was which destructed the property of human beings at international level. So he gave power to the international law and avoiding the destructions of the world. Secondly during that time many countries adopted written constitution. So Kelson also gets influenced from these written constitutions and gave his own theory which is based on grand norms. 

3. Grand norm

Grand means great and norm means Law, so it means a great law the superior authority from which law comes out. He compared the grand norm with written constitution. According to him written constitution is the highest authority in the country which is known as grand norms.. State is not above the grand norm. Sovereignty also livens in grand norm. Accoding to Kelson law is a motive nor science, it means science of norms. In laws only those rules are taken which are related with legal aspects. Any others like moral rules, religious rules, ethical rules do not come under the concepts of grand norm. Here Kelson is equal to Austin. When he excludes morals relation or ethics from the field of law. 

4. System of Normative Rules:-

            System of normative rules was Hierarchy. In hierarchy system there is one highest authority and all other are lower authorities. This highest authority was grand norm which was in the form of written constitution and other authorities are below the constitution. The source of power in a state for all bodies is written constitution. 

Internation Law:- Kelson says that norms have a force behind it. This force lies in the grand norm. If this legal norm is not obeyed then one person will be punished for it. He also says that at this time international law is immature. It is in primitive stage.  It is developing. 

Nature of Grand norm:- According to Kelson each country has  the formation of grand norm according to local conditions. The duty of jurists is to interpret the grand norm in their own language. They are not concerned with the goodness or badness of the grand norm. They are not concerned with the origin of the grand norm. In this way the grand norm is the main source of all the laws in the country. 

5. Elements of Pure Theory:-

Kelson gave his view under this theory about State, sovereignty, public and private law, public and private rights, international law private and juristic law. 

Feature of Kelson’s theory:-

(i)    Grand norm as a source of law:- Grand norm is the source of all laws. Grand norm is in the form of written constitution. Any such body, which contains rules, or any such legal system in a country. 

(ii)  No difference between law and state:-  Kelson says that there is no difference between law and State between because they get power from the same grand norm. Law comes from the grand norm and the state also comes from the grand norm. 

(iii)                    Sovereign is not a separate body:- Austin says sovereign is a politically superior person which keeps controls over the politically inferior persons. But Kelson says that the power of sovereign lies in the people. So the Sovereign is not separate and superior from the people of the country. 

(iv)No difference between public law and private law:- The public law is related with the state and the private law is related with the individuals as Kelson says that there is no difference between public law and private law. The law which creates a contract between individuals is called private law. 

(v)  Supremacy of internationally laws:- The main prupose of Kelson was to decrease the tension at world level because there was Ist world war which destroyed millions of persons and property. He also said that the internaiton law is in primitive stage or immature stage. It means it is in developing stage. One day will come when international law will get equal to that of municipal law. So this is also enforceable. 

6. Criticism of Kelson’s theory:-

In-spit of having good concept of pure theory given by Kelson some of the criticism faced by him, which are as under:

(i)    Grand norm is a vague concept:- The concept of grand norm is not clear. It cannot be applied where there is no written constitution. The base of grand norm in the form of positive norms or the rules based only on legal order is not clear. The rules, which are not linked with morals ethics. Customs and religion are not the norms. But we can not ignore the role of these norms in the development of law.

(ii)  International Law is a weak law:- Kelson advocated the supremacy of international law. But even up to now we see that is no force behind international law. 

(iii)                    No difference between state and law:- this point is also criticized by various writers. Law as a separate thing from the State. State is body is law in, which law is a rule that regulates the state. 

(iv)Difference between public law and private law:- Kelson says that there is no different between public law and private law. This is also not right in the modern days. 

(v)  Customs and Precedents ignored:- He also customs as a source of law while we see that customs are the source of all laws.

7. Conclusion:-

            Although Kelson has been criticized from various angles yet he had contributed a lot in the development of the society. Thus the concept of grand norm gave power to the public at large as well as at national level. His main purpose was to stop destruction of any world war. This can resemble to Austin also Kelson is also limited with the law.