Kelsen's Pure Theory of Law | Concept of Grundnorm

The Law Insight

25 Sept 202307:14

Summary

TLDRIn this video, Disha explores Kelsen's Pure Theory of Law, emphasizing that law should be studied in its pure form, separate from morals, sociology, and history. Kelsen argues that law is normative and follows norms, with the 'Grundnorm' or basic norm serving as the foundation of legal systems. He contrasts his theory with Austin's, rejecting the psychological element of fear in law enforcement. Criticisms of Kelsen's theory are discussed, particularly the contradiction between the Pure Theory and societal influence on the Grundnorm. The video concludes by highlighting the importance of procedural laws over substantive ones.

Takeaways

👩‍🏫 Kelsen's Pure Theory of Law argues that law should be studied in its purest form, separate from factors like morality, sociology, psychology, and history.
🔍 Kelsen did not completely reject the influence of these factors but believed they should not play a role in the context of law.
⚖️ The theory applies to any legal system universally, meaning it can be applied across different countries and situations.
📜 Two key concepts in Kelsen's theory are 'ought to be' and 'Grundnorm' (basic norm), which are essential to understanding his approach.
👉 'Ought to be' falls between 'should' and 'must'—implying a stronger force than 'should' but less than 'must' in legal compliance.
⚖️ Kelsen emphasized that law is normative, meaning it follows norms, without considering external factors.
🏛️ The concept of 'Grundnorm' is a fundamental principle that serves as the source from which all other norms are derived in a legal system.
🌍 Different systems may have different Grundnorms. For instance, in a democratic country, principles like equality and liberty might be Grundnorms.
💡 Kelsen suggested that substantive and procedural laws are derived from the same Grundnorm, but he considered procedural laws more important.
🔄 One criticism of Kelsen's theory is that his concept of Grundnorm involves societal acceptance, which contradicts his initial claim of separating law from social factors.

Q & A

What is the core idea behind Kelsen's Pure Theory of Law?
-Kelsen's Pure Theory of Law argues that law should be studied in its purest form, free from any influences of morality, sociology, psychology, or history. The theory focuses solely on legal norms and their structure.
How does Kelsen differentiate between 'ought to be' and 'what the law is'?
-Kelsen explains that we should study law as 'what it is' (the reality of the law) rather than 'what it ought to be' (an ideal version of the law). The 'ought to be' refers to the normative force of law, stronger than 'should' but weaker than 'must'.
What does Kelsen mean by 'normative' in his Pure Theory of Law?
-By 'normative,' Kelsen means that law is a system of norms or rules that must be followed, irrespective of external factors. For instance, if someone commits theft, the norm requires a trial and punishment, following the legal process.
What is a 'Grundnorm' according to Kelsen?
-A 'Grundnorm' is the fundamental or basic norm from which all other norms in a legal system derive. It is the parent norm, and no norm can be inconsistent with it. For example, in a democracy, the constitution might serve as the 'Grundnorm'.
Can different legal systems have different Grundnorms?
-Yes, Kelsen argues that different legal systems may have different Grundnorms. For instance, a democratic system may have equality and liberty as its Grundnorms, while a monarchy might have commands from the monarch as its fundamental norm.
How can a Grundnorm be replaced according to Kelsen?
-A Grundnorm can be replaced when a new norm gains more acceptance from the people than the previous one. For instance, if a communist country adopts capitalism, the old Grundnorm may be replaced with one aligned with the new economic system.
What is the difference between substantive law and procedural law according to Kelsen?
-Kelsen believed there was no significant difference between substantive and procedural law since both are derived from the same Grundnorm. However, he considered procedural law more important due to its complexity and role in ensuring justice.
Why does Kelsen prioritize procedural law over substantive law?
-Kelsen believes procedural law is more important because it deals with the processes of justice, such as trials and enforcement, which are more complicated and essential to ensuring the law functions correctly.
What is Kelsen's opinion on the division of powers (executive, legislative, judiciary)?
-Kelsen argues that the division of powers is unnecessary because all branches of government derive their authority from the same Grundnorm. However, he acknowledges that the practical need for division comes from the different expertise and functions of these bodies.
What is a major criticism of Kelsen's Pure Theory of Law?
-A key criticism of Kelsen's theory is that it contradicts itself by including the societal acceptance of the Grundnorm, which introduces social factors into what is supposed to be a purely legal theory. This dilutes the 'purity' of the theory.

Outlines

00:00

🔍 Introduction to Kelsen's Pure Theory of Law

This paragraph introduces Kelsen's Pure Theory of Law, explaining that the concept of 'pure' refers to something uncontaminated. Kelsen advocates for studying law in its purest form, without considering external factors such as morals, sociology, psychology, or history. Although Kelsen doesn't fully deny the relevance of these factors, he asserts that they should not play a role in understanding the law itself. After filtering out these factors, what remains is the 'pure law'. He emphasizes that his theory applies universally to any legal system.

05:01

⚖️ Ought to Be: Key Concept in Kelsen’s Theory

Kelsen introduces two critical terms: 'ought to be' and 'Grundnorm'. In this paragraph, 'ought to be' is compared to the use of 'should' and 'must'. Kelsen believes that law should be studied for what it is, not for what it ought to be. He emphasizes that law is normative, meaning it follows norms, and provides an example where legal procedures follow norms strictly without incorporating external factors.

🏛️ The Concept of Grundnorm in Kelsen's Theory

Kelsen introduces the concept of 'Grundnorm', a basic or initial norm from which all other norms derive. This norm acts as the parent norm, and no other norm can be inconsistent with it. In democratic systems, principles like equality, liberty, and fraternity act as the Grundnorm, whereas in monarchies, commands from the monarchy may serve this role. Kelsen explains that a Grundnorm can change if a new norm gains broader acceptance from the people.

🔄 Procedural vs. Substantive Laws

Kelsen argues that there is no significant difference between substantive and procedural laws because both are derived from the same Grundnorm. However, he views procedural laws as more important because they are more complex. For example, while substantive laws define offenses like theft or murder straightforwardly, procedural laws dictate the legal processes that follow after such crimes are committed, making them more intricate.

📜 Kelsen’s Opinion on the Division of Powers

Kelsen critiques the division of powers between the executive, legislative, and judiciary branches, suggesting that there is no need for separate bodies because they all derive their authority from the same Grundnorm. However, in practice, different bodies are needed due to the different expertise and efficiencies they bring to governance, despite their common legal foundation.

⚖️ Differences Between Kelsen and Austin's Theories

In contrast to Austin's command theory of law, which involves commands backed by sanctions, Kelsen rejects the psychological element of fear inherent in Austin’s theory. Kelsen insists that law should be studied in its pure form, free of external factors like fear of punishment or psychological influence.

❗ Criticisms of Kelsen's Pure Theory

This paragraph presents criticisms of Kelsen's theory. The first criticism is about the inclusion of societal factors in determining the Grundnorm, which contradicts the idea of law being free from external influences. The second criticism addresses Kelsen's claim that separate bodies of power are unnecessary. Critics argue that different institutions have distinct roles based on their expertise, which is why the division of powers remains essential in modern governance.

🎓 Conclusion: Wrapping Up Kelsen’s Pure Theory

The final paragraph summarizes Kelsen's Pure Theory of Law and its practical implications. The speaker concludes by reinforcing the importance of studying law in its purest form and invites viewers to engage further by subscribing to the channel for more discussions on legal topics.

Mindmap

Keywords

💡Pure Theory of Law

The Pure Theory of Law, developed by Hans Kelsen, emphasizes studying law in its purest form without the influence of external factors like morality, sociology, psychology, or history. The video discusses how Kelsen advocates filtering out these aspects to focus purely on the legal system itself, making law an objective field.

💡Ought to Be

In Kelsen's theory, 'ought to be' refers to a normative idea between 'should' and 'must.' This term implies a strong recommendation for following rules, but not as compelling as a must. The video explains how Kelsen uses this to argue that law should be studied as it is, not as it ought to be.

💡Norms

Norms are fundamental rules or standards within the legal system that dictate how laws function. Kelsen states that laws follow norms, meaning that legal systems are based on a framework of normative rules. The video gives the example of a theft trial, where norms guide the legal process and decision-making.

💡Grundnorm

The Grundnorm, or basic norm, is the foundational rule from which all other norms in a legal system are derived. In Kelsen's theory, every legal system has a basic norm that acts as the source of all subsequent laws. The video cites examples like the preamble of the Indian Constitution as a Grundnorm.

💡Substantive Law

Substantive law refers to laws that define rights, duties, and legal relationships. In the video, Kelsen argues that substantive laws, such as those found in the Indian Penal Code (IPC), define what constitutes crimes like theft or murder. However, he places more importance on procedural laws.

💡Procedural Law

Procedural law governs how legal processes are carried out, such as arrests, trials, and court proceedings. Kelsen values procedural law more because it ensures that the norms are applied correctly. The video illustrates this by explaining how the Criminal Procedure Code (CrPC) defines the arrest and trial process.

💡Legal Positivism

Legal positivism is a theory that laws should be understood based solely on their written form and not influenced by external factors like morals. Kelsen's Pure Theory of Law is rooted in legal positivism, as the video discusses his argument that law should be studied in its existing form rather than based on moral ideals.

💡Division of Powers

Kelsen critiques the division of powers into the executive, legislative, and judiciary, arguing that since all these branches derive from the same Grundnorm, such divisions are unnecessary. However, the video explains that this division exists because each body has distinct expertise, not because of different norms.

💡Sociological Influence

While Kelsen emphasizes studying law in its pure form, he contradicts himself by introducing societal factors through the concept of Grundnorm. The video highlights this as a criticism, where societal acceptance is needed for a norm to become a Grundnorm, thus bringing sociological influence into the legal system.

💡Criticism of Kelsen

Kelsen's theory faces criticism, particularly for his stance on the Grundnorm and the rejection of the division of powers. The video critiques his theory for being inconsistent, especially in how he relies on societal factors to define Grundnorms while arguing for law's purity.

Highlights

Kelsen's Pure Theory of Law emphasizes studying law in its pure form, filtering out factors like morals, sociology, psychology, and history.

Kelsen suggests that law should be studied as it is, not as it ought to be, distinguishing between 'should' and 'must' in terms of legal obligations.

Law is normative, meaning it follows norms such as conducting trials and implementing decisions after legal processes.

Kelsen introduces the concept of the Grundnorm, a basic norm from which all other norms in a legal system derive.

Each legal system can have its own unique Grundnorm, such as equality and liberty in democratic systems, or monarchy commands in monarchical systems.

A norm becomes a Grundnorm when accepted by a certain group of people, and it can be replaced if a new norm gains more acceptance.

Kelsen argues that substantive laws and procedural laws both derive from the same Grundnorm, with procedural laws being more important.

Kelsen critiques the division of powers, arguing that different bodies of power (executive, legislature, judiciary) are unnecessary since they all stem from the same Grundnorm.

Kelsen rejects Austin's theory of law as a command backed by sanctions, asserting that fear of sanctions introduces a psychological element into law.

One criticism of Kelsen's theory is the contradiction of involving society in approving the Grundnorm, diluting the 'pure' nature of the theory by introducing societal factors.

Kelsen's view that the division of powers is unnecessary is criticized, as different institutions have different expertise, making the separation beneficial.

In a procedural law example, Kelsen notes that processes like arrest and trials follow norms, showing the complexity of procedural norms compared to substantive laws.

Kelsen’s theory of Pure Law is universally applicable to any legal system, as it abstracts law from specific cultural or historical contexts.

Kelsen emphasizes that legal norms must be consistent with the Grundnorm, and any inconsistencies render those norms invalid.

A Grundnorm is foundational, but it can evolve if societal consensus shifts toward a new fundamental norm, reflecting changes in legal systems.