Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as , and in 1960 in a much revised and expanded edition. The latter was translated into English in 1967 as Pure Theory of Law.
Kelsen began to formulate his theories as early as 1913. Kelsen was a proponent of legal positivism in the tradition of Jeremy Bentham and John Austin, departing from their views of law being "command"-driven in deference to a sovereign, and attempting to formulate a "pure" theory that would be more like "legal science", and devoid of any moral, political, or sociological considerations.
Some of the main themes include introduction of the concept of "norms" as the fundamental building blocks of law and the hierarchical nature among them, including the idea of a "basic norm" providing authority for lower norms; the ideas of "validity" and "efficacy" of norms; legal "normativity", complete separation from morality, and ideas relating to legal positivism and international law.
The impact of the book has been enduring and widespread, and it is considered one of the seminal works of legal philosophy of the twentieth century. The concept of a "hierarchy of norms" has had important influence internationally, one example being in France, which conceptualizes it graphically as "Kelsen's pyramid" and where it remains an organizing principle for the French legal system, from the Constitution at the apex, to administrative regulations at the base.
Background
Positivism
The central question of jurisprudence is, "What is the nature of the law?" Two major schools of legal theory that address this question are natural law theory and legal positivism. The main point of contention in the debate between the two is the type of relation between law and morality, with the positivists supporting a weak or no connection. An early proponent of positivism was John Austin, who, following Jeremy Bentham, viewed law as commands from a recognized source (i.e., a sovereign) backed up by threat of sanctions where the subjects have a duty to obey. All these concepts (law, sovereign, command, sanction, duty) are specific, socially defined events and according to Austin, they are sufficient—no appeal to morality is required in order to determine what the law is (though it may play an advisory role).
Positivism traditionally says that the existence of a legal system in a given society depends solely on structures of governance, and laws are whatever rules have been declared ("posited") and accepted, and which are recognized by officials as authoritative (legislation, judicial decisions, etc.) without recourse to any value judgment of merit, such as whether they are just, deserved, or democratic. That said, there are many interpretations of, and countercurrents within positivism, including uncertainty and criticism.
Austin wished to transform law into a true science, without recourse to any moralistic notions, based on the ideas that law and morality are separate. Austin's views were very influential in the 19th and early 20th century, and set the stage for Kelsen.
Kelsen considered the ideas he expounded in the first, 1934 edition of Pure Theory of Law as "a further development of approaches... that have been introducing themselves by the positivistic jurisprudence in the nineteenth century".
Precursors
Already in 1913, Kelsen had identified the need for a legal theoretic framework to support the idea of the Rechtsstaat.
was a student of Kelsen who made important contributions starting in 1918 in the area of hierarchy of norms that would help underpin some of Kelsen's ideas on norms and how they fit into his pure theory of law.
Terminology
Kelsen used some formal terms from the philosophy of law which had been in use for centuries, and developed others in his own way. Here is a list of some of the most important terms that appear in Pure Theory of Law:
basic norm () – the fundamental norm in the hierarchy of norms, providing authority for all lower norms
ought – the "is" and "ought" problem involves terms that go back to Kant, Hume, and others. Kelsen preferred the ought () or an ought proposition () to norm because of the latter's dual sense of both descriptive (e.g., some behavior "is the norm", which Kelsen does not use) and prescriptive social norms.
positive vs. normative – this parallels the "is—ought" distinction. See see Normative statement.