Introduction
Hans Kelsen’s Pure Theory of Law represents one of the most influential contributions to legal positivism, aiming to establish a scientific approach to law by divorcing it from morality, politics, and sociology. Central to this theory are concepts such as legal normativity, the Grundnorm, the distinction between validity and effectiveness, and the theory of revolution. However, critics argue that Kelsen’s framework either collapses into sociological positivism, by implicitly relying on social facts, or hinges on the Grundnorm as a mysterious, unfounded fiction. This essay critically evaluates this claim by analysing Kelsen’s core concepts and contrasting them, where relevant, with H.L.A. Hart’s legal positivism. It will explore whether Kelsen’s attempt to maintain a pure, normative science of law succeeds or falters under scrutiny. The discussion will proceed by examining legal normativity and the Grundnorm, the relationship between validity and effectiveness, and the implications of Kelsen’s theory of revolution, before concluding with a synthesis of the arguments.
Legal Normativity and the Grundnorm in Kelsen’s Theory
Kelsen’s Pure Theory of Law seeks to understand law as a system of norms, distinct from moral or factual considerations. Legal normativity, for Kelsen, refers to the binding nature of legal rules derived from their hierarchical structure within a legal system. At the apex of this hierarchy lies the Grundnorm, or basic norm, a hypothetical presupposition that provides the ultimate source of validity for all other norms in the system (Kelsen, 1945). The Grundnorm is not a positive legal rule but a logical necessity; it is assumed to exist to explain why the legal order is binding. For instance, in a constitutional system, the Grundnorm might be the assumption that the constitution ought to be obeyed.
Critics, however, label the Grundnorm as a “mysterious fiction” because it lacks empirical grounding and seems to be a mere intellectual construct. Unlike Hart’s “rule of recognition,” which is grounded in the social practice of officials accepting a fundamental rule for identifying law (Hart, 1961), Kelsen’s Grundnorm is transcendental and detached from social reality. This detachment raises questions about whether it can adequately explain legal authority without invoking some form of sociological or psychological acceptance. Indeed, if the Grundnorm is merely a presupposition, it risks being an empty concept, failing to provide a concrete basis for legal obligation. Thus, the criticism that Kelsen’s theory rests on a mysterious fiction appears to hold some weight, particularly when contrasted with Hart’s more pragmatic approach.
Validity and Effectiveness: A Tension in Kelsen’s Framework
Another key aspect of Kelsen’s theory is the distinction between validity and effectiveness. Validity refers to a norm’s status within the legal hierarchy, derived from a higher norm, ultimately tracing back to the Grundnorm. Effectiveness, on the other hand, pertains to whether a norm is actually observed or enforced in practice (Kelsen, 1945). Kelsen insists that validity is independent of effectiveness; a norm remains legally valid even if it is not followed, provided it is created according to the system’s rules.
However, Kelsen introduces a caveat: for a legal system as a whole to be considered valid, it must be “by and large effective” (Kelsen, 1967). This qualification creates a tension, as it seems to smuggle in a sociological element—effectiveness as a social fact—into a supposedly pure normative theory. Critics argue that this reliance on effectiveness undermines Kelsen’s claim to exclude sociological considerations, pushing his theory towards sociological positivism. Hart, by contrast, explicitly incorporates social facts into his concept of law, arguing that the rule of recognition depends on the acceptance and practice of officials (Hart, 1961). While Hart openly acknowledges the role of social reality, Kelsen’s attempt to maintain purity by separating validity from effectiveness appears inconsistent, lending credence to the view that his theory collapses into sociological positivism at a systemic level.
The Theory of Revolution and Its Implications
Kelsen’s theory of revolution further complicates his Pure Theory by addressing how legal systems change through extra-legal means. According to Kelsen, a revolution occurs when a new legal order replaces the old one through a break in legal continuity, establishing a new Grundnorm (Kelsen, 1945). For example, if a coup d’état installs a new constitution, the old legal norms lose validity, and a new Grundnorm is presupposed to validate the emerging order. Kelsen argues that this transition is a factual event, outside the scope of normative legal science, yet it necessitates a new logical starting point for validity.
This theory raises significant issues. First, it reinforces the notion that the Grundnorm is a fiction, as it can be arbitrarily replaced following a factual change in power. If the Grundnorm is merely a presupposition tied to the effectiveness of a new regime, it seems to lack independent normative force, further aligning Kelsen’s theory with sociological considerations of power and compliance. Secondly, Hart critiques this approach, suggesting that legal systems endure through social practices and acceptance, not through a sudden replacement of a hypothetical norm (Hart, 1961). Hart’s perspective implies a continuity of legal authority rooted in social rules, whereas Kelsen’s focus on revolution as a normative rupture appears detached from the lived reality of legal systems. Arguably, Kelsen’s explanation of revolutionary change underscores the fragility of his pure normative framework, supporting the claim that it either relies on social facts or leans on an abstract, mysterious construct.
Critical Evaluation: Does Kelsen’s Theory Hold?
Evaluating the central claim, it is evident that Kelsen’s Pure Theory of Law faces significant challenges. The Grundnorm, while an innovative concept, struggles to escape the label of a “mysterious fiction” due to its hypothetical nature and lack of empirical grounding. Unlike Hart’s rule of recognition, which ties legal validity to observable social practices, Kelsen’s insistence on a transcendental norm appears detached and, at times, impractical. Furthermore, the tension between validity and effectiveness suggests an implicit reliance on sociological elements, particularly when Kelsen acknowledges the necessity of general effectiveness for a legal system’s existence. This weakens his claim to purity, indicating a collapse into sociological positivism in practice, even if not in intention.
Nevertheless, Kelsen’s theory retains value in its rigorous attempt to isolate law as a normative science. His framework provides a clear conceptual hierarchy for understanding legal systems, which is particularly useful for analysing authoritarian regimes where moral considerations may be irrelevant. However, the criticisms highlight limitations that cannot be easily dismissed, especially when contrasted with Hart’s more grounded positivism.
Conclusion
In conclusion, the claim that Kelsen’s Pure Theory of Law either collapses into sociological positivism or rests upon a mysterious fiction holds substantial merit. The Grundnorm, while logically elegant, appears as an abstract fiction lacking the practical grounding seen in Hart’s rule of recognition. The relationship between validity and effectiveness reveals an uneasy dependence on social facts, undermining Kelsen’s aim of purity. Similarly, his theory of revolution reinforces the perception that legal validity ultimately hinges on factual power shifts, blurring the line between normativity and sociology. While Kelsen’s contribution to legal theory remains significant, offering a unique perspective on legal normativity, the critiques suggest that his framework struggles to fully escape the influence of social reality or provide a concrete foundation for legal authority. Therefore, while not entirely collapsing or fictional, Kelsen’s theory arguably occupies an unstable middle ground, inviting further scrutiny and comparison with alternative positivist approaches like Hart’s.
References
- Hart, H.L.A. (1961) The Concept of Law. Oxford: Clarendon Press.
- Kelsen, H. (1945) General Theory of Law and State. Harvard University Press.
- Kelsen, H. (1967) Pure Theory of Law. 2nd edn. Berkeley: University of California Press.
