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pure theory of law

English · Jurisprudence and interpretation

Meaning. Hans Kelsen's theory that legal science should study law as a hierarchy of norms, free from morality, politics and sociology.

Kelsen (1881–1973), in his Pure Theory of Law, sought to make legal science “pure” by excluding ethics, psychology, sociology and politics. Law is a system of “ought” norms. Each norm is valid because it is authorised by a higher norm: an order by a statute, a statute by the constitution, and so on, up to the grundnorm, the basic norm that is presupposed and not itself derived from any other norm.

The grundnorm is valid so long as the legal order as a whole is by and large effective. Kelsen therefore explained revolutions as a change of grundnorm. Critics say the theory is circular about the grundnorm and cannot be completely free of fact and value. It is a form of legal positivism.

Example

On the pure theory of law, an ordinance is valid because a higher norm, the Constitution, authorises it, not because it is just.

See also

grundnorm · legal positivism · jurisprudence · sources of law

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