The Pure Theory of Law propounded by H. Ketsen is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavors to answer the question. What is the law? But the question. What ought it to be? It is a science and not a politics of law.
The pure theory of law 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 of law. That is it endeavors lo free the science of law from all foreign elements.
This is its fundamental methodological principle. It would seem a self-evident one. Yet a glance at the traditional science of law in and twentieth century’s developments shows plainly how far removed from the requirement of purity that science was. Jurisprudence in a wholly uncritical fashion was mixed up with psychology and biology, with ethics and theology.
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There is today hardly a single social science into whose province jurisprudence feels itself unfitted to enter, even thinking, indeed, to enhance its scientific status by such conjunction with other disciplines. The real science of law, of course, is last in such a process.
Law is a social phenomenon. Society, however, is something wholly different from nature, since an entirely different association of element. The legal science is not lo disappearing into natural science, and then law must be distinguished in the plainest possible manner from nature.
The difficulty about such a distinction is that law, or what is generally called law, belongs with at least a part of its being to nature and seem to have a thoroughly natural existence. If, for instance, we analyse any condition of things such as is called law a parliamentary ruling, a judicial sentence, a legal process, a depict—we can distinguish two elements.
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The one is a sensible act in time and place, an external process, generally a human behaviour: the other is significance attached to or imminent in this act or process, a specific meaning. People meet together in a hall, make speeches, some rise from their scats, others remain seated; that is the external process. Its meaning; that a law has been passed.
A man, clothed in a gown, speaks certain words from an elevated position to a person standing in front of him. This external process means a judicial sentence.
The Pure Theory of Law separates the concept of the legal completely from that of the moral norm and establishes the law as specific system independent even of the moral law.
It does this not, as generally the case with the traditional theory, by defining the legal norm, like the moral norm, as an imperative, but as an hypothetical judgment expressing at specific relationship between the conditioning circumstance and a conditioned consequence.
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The legal norm becomes the legal maxim—the fundamental form of the statute law. Just as natural law links a certain circumstance to another as cause to effect, so the legal rule links the legal condition to the legal consequence. In the one case the connecting principle is causality; in the other, it is imputation. The Pure Theory of Law regards this principle as the special and peculiar principle of law. Its expression is the ought.
The expression of the causality principle is Necessity. The law of nature runs: If A is, then B must be. The legal rule says: If A is, then B ought to be. They ought to remains a pure a priori category for the comprehension of the empirical legal material.
When we say: If there is tort, then the consequence of tort (punishment) i.e. ought to) follow, this ought, the category of law, indicates only the specific sense in which the legal consequences are held together in the legal rule. The category has a purely formal character. Thereby it distinguishes itself in principle from any transcendental notion of law.
Dias observes that, according to Keelson, in every legal order, no mailer w it what proposition of lay one begins, a hierarchy of ‘ought’s’ is traceable back to some initial fundamental ‘ought’, on which the validity of all the others ultimately rests, and he calls this the Grundnorm the basic or fundamental norm.
He recognizes that the Grundnorm, need not be the same in every legal order, but a Grundnorm of some kind there will always be, whether in the form e.g., of a written constitution or the will of a dictator. There is also no reason why there need only be on Grundnorm.
In Great Britain, for instance, the entire legal order is traceable to the propositions that the enactments of the Crown in Parliament and judicial precedents ought to be treated as law and with immemorial custom as a possible third.
These does not contradict Kelson’s thesis. He says that a system of law cannot be founded on is conflicting Grundnorm. In Britain there is no conflict between the authority of the Crown in Parliament and of judicial precedent; the former takes precedence over the latter.
Lasky commented on Kelsen’s theory of pure law as an exercise in logic and not in life. This criticism ignores the limited objective of Kelsen which was to present a pure science of law, a formal view of the legal structure.