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Maria Karen Sanchez

Atty. Ronel Buenaventura

JD3A/JD1C

Philosophy of Law

A Concept Paper on the Pure Theory of Law

The impression of a Pure Theory of Law was advocated by the the Austrian jurist and
philosopher Hans Kelsen. He claimed that

legal philosophies at the time were despondently

tainted with political ideology and moralizing on the one hand, or with attempts to reduce the
law to natural or social sciences, on the other hand. He found both of these reductionist
endeavors seriously flawed. Instead, Kelsen suggested a pure theory of law which would avoid
reductionism of any kind. The jurisprudence Kelsen propounded characterizes itself as a pure
theory of law because it aims at cognition focused on the law alone and this purity serves as its
basic methodological principle.

This paper seeks to understand perceiving one of the theory of law that is the law being
pure in itself. Materials from different authors have been collated to comprehend their different
interpretation on the Pure Theory of Law.

Discussion:
Kelsens answer to this question is surprisingly simple: an act or an event gains its legalnormative meaning by another legal norm that confers this normative meaning on it. An act can
create or modify the law if it is created in accordance with another, higher legal norm that
authorizes its creation in that way. And the higher legal norm, in turn, is legally valid if and
only if it has been created in accord with yet another, higher norm that authorizes its enactment
in that way.

The problem is that here the chain of authorization comes to an end: There isnt a
higher legal norm to the highest given norm. At this point, Kelsen famously argued, one
must presuppose the legal validity of such highest given norm. At some stage, in every legal
system, we get to an authorizing norm that has not been authorized by any other legal norm,
and thus it has to be presupposed to be legally valid. The normative content of this
presupposition is what Kelsen has called the basic norm. The basic norm is the content of the
presupposition of the legal validity.
Accordingly the theory is pure because it separates jurisprudence from other disciplines
like ethics, politics and psychology. This is important because different disciplines have different
methodology, and so its hard to analyze law when its all mixed up with other things. Kelsens
pure theory allows for a pure legal science.
By pure theory of law, Kelsen meant to remove all the impure or extraneous elements
from law and to leave a material that is purely legal. Thus natural law, moral, religious, social,
and other accretions that are not strictly law had to be eliminated.

Kelsen's strict delineation of law and morals was an integral part of his presentation of
the pure theory of law. The application of the law, in order to be protected from moral influence
or political influence, needed to be safeguarded by its separation from the sphere of conventional
moral influence or political influence. Kelsen did not repudiate that moral discussion was still
possible and even to be encouraged in the sociological domain of intersubjective activity.
However, the static operation of the pure theory of law must not to be subject to such influences.
Descriptively, the Pure Theory of Law has always been about power. A positive-legal
order can be identified when there are norms that regulate their own creation through a process
of authorization and, in addition, the order itself is 'by and large effective'. Kelsen does not
closely specify 'by and large', but he does attribute effectiveness to coercion.
However, most if not all jurists now accept H. L. A. Hart's point in The Concept of Law
that not all legal norms are coercive - some, and some of the most important, are facilitative. The
Pure Theory of Law can accommodate this by accepting that what matters most is not whether
particular legal norms are coercive but whether, by containing coercive norms, the legal order as
a whole is coercive - which Hart does not deny.
Hart and Kelsen gave different accounts of this internal aspect of law, but both wanted to
stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal
positivism. According to Hart and Kelsen, then, legal theorists must understand law from the
internal point of view, but that point of view must not be so internal as to entail a moral
endorsement of the law. For Hartian and Kelsenian legal theorists, having an internal attitude
toward the law, then, does not entail accepting the law as a morally good thing which creates
moral reasons to do as it says because it says so.

Although when first presented, the Pure Theory of Law was often dismissed-more on the
basis of hearsay than of careful analysis-as but another case of typical, overly conceptualized
continental jurisprudence, American and British jurists gradually realized that the Pure Theory of
Law transcends the limitations and built-in biases of continental legal ideas and institutions, and
that it has many points of similarity with the traditions and assumptions of the common law. In
many areas of the legal process-both with respect to legal principles and legal institutions of the
common law-the Pure Theory has sharpened and clarified insights of lawyers previously
perceived only through experience, habit, and common sense rather than rigorous and systematic
analysis.

Conclusion:
This concluding part once again takes up the question of what form of legal theory we
find in Kelsen. It argues that the Pure Theory is best understood as an attempt to find a middle
ground between natural law and legal positivism that may serve to reconnect positivist legal
thought in a distinctive and so far unexplored way with normative political theory. The
Pure Theory offers an outline for an understanding of law that is adequate to the realization of a
legitimate polity governed by the rule of democratic law.
Thus, the pure theory of law of Hans Kelsen, regardless of its principled negative relation
towards the natural law teaching, starting exactly from the attitude that law must be presented
such as it is, is forced, whether it wants to or not, also to deal with the study of the corresponding
contents of natural law, which in present times under the name human rights" make an essential

integral part of the existing international law.23 One cannot say that Hans Kelsen was totally
wrong in classifying law as pure and impure. HLA Hart, a later positivist, though criticized
Kelsen to some extent for the exclusion of alien elements, derived the rule of recognition from
Hans Kelsens Pure Theory of Law.

Bibliography:
Hart, H.L.A., 1961, The Concept of Law, Oxford: Clarendon Press.
Kelsen, H., 1979, General Theory of Law and State (trans.A. Wedberg, twentieth centuary Legal
philosophy)
Knight, M.,1960/1967, Pure Theory of Law, Berkeley: University of California Press

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