Legal Positivism/ Law as a

Normative System: Hans Kelsen

Bishal Khanal
Aug 2014
1. Defining Legal System
• Kelsen’s positive theory is commonly called as the ‘Pure theory of law’

• His theory is also said as ‘normative legal system’ because for him law is the
‘norm’

• The term ‘norm’ may be said as the ‘rule of conduct’ or the ‘rule of
behavior’ (of human beings)

• Kelsen believes that law (is independent and) must be free from ethics,
politics, sociology, history, etc

• In other words law is developed on the basis of law (legal rules) itself
2. Hierarchy of Norms

• Legal ‘norms’ are expression of ‘oughts’ (bindingness)

• Norm is a ‘proposition’ in hypothetical forms

• Norms can be classified as the ‘primary norm’ and ‘secondary

norms’

• Kelsen believes that there is a hierarchy of ‘norms’ (law) for example

‘Na’ ‘Nb’ ‘Nc’ (suppose norm ‘Na’ is the ‘grundnorm’ (basic norm)
• Kelsen says a dynamic system is one, in which fresh norms are constantly being
created on the authority of an original or basic norm said as ‘grundnorm’
( basic/fundamental norm)

• Grundnorm (can be understood as popular movements/revolution for the

change of state system and law as well) for which Kelsen says “presupposition”.

• Legal norms are created under the authority of ‘grundnorm’ like the laws as
constitution, legislation etc

• He rejected the idea of command , because it introduces a psychological element

into a theory of law. In his view to be a pure law psychology ( psychological
component) should be separated from law . So he is in favor of de-psychologised
command.
3. Functions of Law

• Law is primary norm which stipulates the sanction (punishment) and therefore law
arrives to its function

• Kelsen make distinction between legal and other ‘oughts’ and says legal ‘oughts’ are
backed by the force of state.

• Main function of law is to give guidance by prescribing how people ought to behave?

• ‘Ought norm’(binding law) deals with, what ought to occur? such as if a person commits
crime (murder, theft etc), s/he ought to be punished. If the judge/court asks for
imprisonment the prison staff have to follow the norm to imprison.

• Legal norm prescribes conduct by attaching a sanction to contrary behaviors

4. Efficacy /effectiveness of Law

• In order to exist for longer period law must be effective and efficient

• Efficacy of the legal order is a condition for the validity of every norm

• In other words existence of legal system rest on the degree of obeying

the law by people

• If laws are largely obeyed they are effective or efficacious, and if not
they may not exist for long or their existence is in question
5. Critical Observations
• Despite Kelsen’s theory is called as ‘pure theory’ (making efforts to
exclude sociology, history, politics, ethics from law), in indirect
sense he suggests that moral and social values are indispensible in
prescribing (human) behavior

• In England the Grundnorm is that ‘precedents ought to be binding”

but no new norm (secondary norm) coming under the precedent

• Effectiveness of norm or law cannot be measured in isolation as

effectiveness of law depends the very sociological factors and that is
excluded in his theory.
• The grundnorm is effective, and continues to be
effective, in so far as an element of morality is
built in as part of the criterion of validity

• Kelsen accepts that grundnorm (is made with) is

a political decision, and not dictated by
effectiveness ; if so apolitical factor is involved in
law and the law is no more pure.
Thank you