Kelsen's Pure Theory of Law | Concept of Grundnorm

Summary

In 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.