Professor emeritus, Hans Kelsen, was born on October 11th 1881 in Prague Austria to Jewish parents. He moved to Vienna with his family when he was three years old. He studied law at the University of Vienna and took his doctorate in 1906 at the age of 25. In 1911 he started holding university lectures in public law and legal philosophy at the University of Vienna. In 1919 he became a full professor of public and administrative law. He also became a dean of the faculty of law at the University of Vienna from 1922 to 19231.

Professor Hans kelsen began his career of legal writing in 1911 with his first major work, “Main Problems in the Theory of Public Law”, which had over 700 pages while the writer was barely 30 years of age when it was published, and through this work he received widespread attention.2

But, because many of his basic views and methods of analysis ran counter to tradition, the first reactions to him were often critical and even hostile indicating that his approaches to the chief problems of law and state had offended traditional legal and political theories3. Yet, reactions of approval and encouragement were not lacking. He received hail from the reviewers of his work for his attempt to translate transcendentalism into the philosophy of law.4

His influence grew rapidly because of his highly prolific literacy output on key aspects of law and state which showed the applicability of his pure theory of law to many intricate specific problems.5

At the end of 1920’s, he left Austria to occupy a chair at the University of Cologne. In 1930 he published his first edition of pure theory of law. This made him to become the famous jurist and legal philosopher of the 20th century on the philosophy of positive law6. The Nazification of Germany in 1933 forced him to leave Germany, and after temporary stay in various European countries, he finally settled in the United States. He concluded his official academic career at the University of California at Berkeley in 1952, and ultimately died in April 19th 19737.

1 www.wikipedia.org/wiki/hans_kelsen#biography (accessed on 1st June, 2012), (for the whole paragraph) 2 William, E., ”The pure theory of law: Demythologizing Legal Thought”, 59 CALIF. L. REV, P. 617.3 Ibid.4 Ibid.5 Ibid.6 Ibid. 7 Ibid.

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He published hundreds of books and articles in his lifetime translated in different languages in which he tried to find a solution to the basic problems of the general legal theory and state.

His contributions to the development of legal theory in the whole of his lifetime, through his pure theory of law made him to be regarded as the positivist of positivists. The Pure theory of law, according to him is a theory of positive law which is concerned solely with that part of knowledge which deals with law excluding from such knowledge everything which does not strictly belong to the subject matter law.8

Law according to him is a coercive order of human behavior. Positivism according to analytical positivists is an “is” of the law and not an “ought” of the law. But for kelsen, in his pure theory of law positivism is all about an “ought” proposition with physical coercion.9

The pure theory of law arose during the 19th century in which capitalism had reached the monopoly stage. In the field of philosophy, new thinking was emerging and several branches of sociological jurisprudence were being entertained which took into account political, ethical, ideological, and value considerations in the study of law.

This form of thinking enjoyed the support of the Marxist thinking which sought the source of law from historical socio-economic condition. This new development together with the fact that philosophers like Austin and his command theory which still sympathized to some extent with element of natural law and morality, made the bourgeoisie very uncomfortable. As a result the bourgeoisie wanted the purification of the law from these extraneous matters which according to them were contaminating the law.

Therefore, the duty of purifying the law fell on Hans Kelsen. He took up the duty seriously to make a structural analysis of positive law with an intention to free all ethical or political judgments concerning the values from the law and pay no attention to such extraneous matters to law as well as remove from the study of law all the illusions concerning its nature which made its past study unproductive.

8 Freeman, M. D.A., Lloyd’s introduction to jurisprudence, Sweet & Maxwell ltd., London.9 Ibid.

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The result of his structural analysis of positive law, according to him was a pure theory of law which is free from those extraneous elements that has spoiled the methods of study of law.

His rejection of analytical positivism also made him to be regarded as a positivist of positivists because; he differentiated his theory from the empirical tradition of analytical positivism. He rejected analytical positivism propounded by other positivists prior to him such as Augustine Comte, John Austin, Bentham, and others on the basis that their analytical positivism confused the law with facts10. Facts to him constituted laws made by the legislative bodies through the authority of the sovereign, and morality. Therefore, to him, the pure theory of law was an improvement over theories of analytical positivism.11

According to kesen, Austin and his command theory for example, still embraced foreign elements in the subject matter law. His classification of law properly so called and law improperly so called maintained impurities in the subject matter law. This is because the law improperly so called as classified by Austin contained nothing than moral sentiments.

Not only that but also even the positive law which Austin and his followers claimed was not positive in real sense of the term, because it was mixed with facts12. Its validity depended on the will of the sovereign. Thus, it did not qualify to be positive law since to kelsen positive law is derived from norms. The validity of these norms is derived from another norm within the legal system. Therefore, the validity of positive law must be found in the law itself rather than in some extra-legal sphere like the sovereign as said by Austin.13

His rejection of natural law, or the so called laws of nature, which other positivists such as Austin, Bentham, and their followers embraced in their theories made him also to be regarded as a positivist of positivists. According to him natural law confused positive law with morality, and has nothing to do with positive law at all for the simple reason that it is not content to trace law from law, rather than contaminating the positive law.14

10 Ratnapala, S., (2009) Jurisprudence, Cambridge university press, Cambridge. P.3011 Finil, J., (1874), Introduction to legal theory. Sweet & Maxwell ltd., London. p. 236.12 Ibid.13 Ibid.14 Ibid.

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Therefore, according to kelsen, what other positivists propounded as positive law only amounted to facts.

According to him law cannot be made by parliament. It cannot be made by the sovereign even, as said by Austin, but it can only be derived from legal norms. To him, a legal norm is the meaning ascribed to such facts by which a certain behavior is commanded, permitted, or authorized.15 It is an ought proposition that creates a duty to behave in a certain way by imputing a sanction to the breach of such a duty.16 According to him, this ought proposition should not be understood in its ethical sense, but in the sense of formal ought which signifies that under certain circumstances, the state will exercise certain coercive power to enforce certain behavior.17

On the other hand kelsen can be criticized on his theory of grundnorm or basic norm which, according to him it is presupposed to be valid. The validity of a norm according to kelsen, can be derived not from the fact that something is, but only from another norm, and the legal system is made up of a sum total of such interdependent norms18.

In ascertaining whether a specific norm is valid one must inquire whether and how it is derived from another norm which may be considered as the higher norm19. For example, the legal validity of the statutory acts of the legislative body must be derived from a valid norm which is the constitution. Under the constitution, the legislative body is authorized to create such statutes.

Also in seeking to ascertain the validity of the constitution, one finds that it cannot be derived from any higher legal source since it is itself the highest legal source from which all other norms are derived20. Therefore if the validity of the highest legal norm, the constitution, cannot be derived from another legal norm, it can only be derived from a non-legal norm which he call it a basic norm or grundnorm.21 This basic norm can be changed if there is a successful revolution in the country, and a new political order is established, be it democratic, parliamentary, dictatorship, or monarchy.22

15 Ibid.16 Ibid.17 Patterson, E.W., (1952), “Hans kelsen and his pure theory of law”, 40 CALIF. L. REV., P. 518 Op.cit., William, E., p.62619 Ibid.20 Ibid.21 Ibid.22 Ibid.

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According to him, the validity of this basic norm is presupposed, and it is not itself a positive law23. But, without such a presupposed basic norm conferring validity upon the constitution, the constitution would have no legal character, and the norm below the constitution, that is, legislations, judicial decisions, and executive acts, would have no legal character either, since the legal validity of a norm can only be traced from another norm higher to it.24

For example, if A is sentenced to imprisonment, this sentence can be traced to a norm of judgment by the judge, the validity of this judgment is traceable to another norm, the penal code setting up the punitive law, the penal code is based on another legal norm, the state constitution, which set up the rules and procedures for enacting the penal code; the validity of the constitution can be traced to another norm, the older constitution or the historical one which is the basic norm.25

Therefore, his theory of basic norm still establishes a relationship between positive law in his sense and natural law. This is because the basic norm according to him is not a norm of positive law, but a presupposed norm, and yet the validity of positive law is derived from it.

Not only that but also, he rejected the sociology of law because law is to be conceived as a normative order. But, still later he conceded that sociology of law is possible if the object of inquiry is social facts and not norms. Sociology, should only deal not with law as a normative system, but with phenomena that are parallel to the law.26 This shows that he also in one way or another accepted some elements of sociology in the study of law. Thus, his pure theory was not that pure as he claimed it to be.

But at the end of the day professor Hans Kelsen deserve to be regarded as a positivist of positivists since he went further than other positivists in his separation of law from social and moral elements in his structural analysis of positive law.

23 Ibid.24 Ibid.25 Mkoyogo, “ Critique of Hans kelsen’s pure theory of law” 7 D.U.L.J., (1978), P.217.26 Ibid.

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