Introduction
This essay explores how Hans Kelsen’s Pure Theory of Law addresses the complex phenomenon of revolutionary changes of government. Kelsen, a prominent legal theorist of the 20th century, developed the Pure Theory as a framework to understand law as a system of norms, distinct from moral or political influences. Revolutionary changes, often involving the abrupt overthrow of an existing legal order, pose a significant challenge to legal theories that prioritise continuity and legitimacy. The purpose of this essay is to examine how Kelsen’s theory accounts for such disruptions, focusing on his concept of the basic norm (Grundnorm), the hierarchy of norms, and the implications of revolutionary change for legal validity. The discussion will first outline the fundamental principles of the Pure Theory, before critically assessing its application to revolutions. While demonstrating a sound understanding of Kelsen’s framework, the essay will also highlight some limitations in its handling of revolutionary contexts, supported by academic sources and logical argumentation.
Understanding Kelsen’s Pure Theory of Law
Hans Kelsen’s Pure Theory of Law is a positivist approach that seeks to study law as a science, free from external influences such as morality, politics, or sociology. At the heart of this theory lies the concept of the Grundnorm, or basic norm, which serves as the foundational assumption that validates the entire legal system (Kelsen, 1945). The Grundnorm is not derived from any higher norm but is presupposed as the ultimate source of legal authority. For instance, in a constitutional system, the Grundnorm might be the assumption that the constitution is binding. From this basic norm, a hierarchical structure of norms is derived, with each norm’s validity dependent on a higher norm, culminating in the Grundnorm (Kelsen, 1967).
Kelsen’s theory insists on the separation of law from other domains, maintaining that legal validity depends solely on whether a norm is created according to the procedures prescribed by a higher norm within the system. This formalist approach generally ensures continuity and stability within a legal order, as each norm is linked to the overarching framework. However, this raises questions about how the theory can accommodate sudden, often violent, disruptions such as revolutions, where the existing legal order and its Grundnorm are replaced or fundamentally altered.
The Challenge of Revolutionary Change
Revolutionary changes of government typically involve the overthrow of an established legal and political order, often through means not sanctioned by the existing system. Such events—whether through coups, uprisings, or other forms of radical transformation—create a discontinuity in the legal hierarchy, posing a significant challenge to Kelsen’s theory. According to Kelsen, a revolution is effective when a new order is established and widely accepted as binding, even if it originates outside the previous legal framework (Kelsen, 1945). He argues that the success of a revolution effectively establishes a new Grundnorm, which then serves as the basis for the validity of the new legal system.
For example, consider a historical case such as the French Revolution of 1789, where the monarchy was abolished, and a new republican order was established. Under Kelsen’s view, the pre-revolutionary legal system, grounded in monarchical authority, lost its validity once the revolutionary order gained effective control and acceptance. A new Grundnorm—arguably the principle of popular sovereignty—would then underpin the subsequent legal norms. This perspective highlights Kelsen’s focus on effectiveness as a criterion for legal validity, rather than moral or ethical legitimacy.
Effectiveness and the New Grundnorm
A key aspect of Kelsen’s approach to revolutionary change is the principle of effectiveness. He posits that for a legal order to be valid, it must be generally effective, meaning that it is obeyed by a significant portion of the population and enforced by those in power (Kelsen, 1967). During a revolution, when one system is replaced by another, the old Grundnorm ceases to be effective and is supplanted by a new one. This transition, while abrupt, is accommodated within the Pure Theory by the recognition that legal validity is ultimately a matter of social fact rather than inherent right or wrong.
However, this reliance on effectiveness raises critical questions. For instance, what happens during the interim period when neither the old nor the new order is fully effective? Kelsen’s theory does not provide a detailed mechanism for navigating such liminal states, where competing norms or authorities may coexist. Furthermore, as critics have noted, prioritising effectiveness over legitimacy may seem to endorse any successful power grab, regardless of its nature or consequences (Raz, 1979). This limitation suggests that while Kelsen’s framework can descriptively account for revolutionary change, it offers little normative guidance on assessing the desirability or justifiability of such transitions.
Critique of Kelsen’s Approach to Revolutions
While Kelsen’s Pure Theory provides a coherent explanation of legal validity during revolutionary changes, it is not without limitations. One notable critique is the theory’s apparent detachment from the socio-political realities of revolutions. By focusing solely on the formal validity of norms and the effectiveness of a legal order, Kelsen’s framework arguably neglects the underlying causes and consequences of revolutionary upheaval (Finnis, 1980). For instance, revolutions often stem from deep-seated grievances or systemic failures, yet the Pure Theory does not engage with these factors, treating the transition of legal orders as a largely technical matter.
Moreover, Kelsen’s reliance on the concept of a new Grundnorm following a successful revolution can appear somewhat circular. If the Grundnorm is a presupposition rather than an empirical fact, as Kelsen asserts, then identifying the precise moment or condition under which a new Grundnorm emerges remains ambiguous. Critics argue that this lack of clarity undermines the Pure Theory’s ability to fully address the chaotic and contested nature of revolutionary periods (Raz, 1979). Indeed, in practice, the acceptance of a new legal order may be gradual and contested, rather than immediate and uniform as the theory might imply.
Another point of contention is whether Kelsen’s theory adequately accounts for the role of international recognition in validating a new legal order post-revolution. While Kelsen acknowledges that international law operates under its own Grundnorm, the interplay between national and international legal systems during revolutionary changes is not extensively explored in his work (Kelsen, 1945). This gap limits the theory’s applicability in an increasingly interconnected global legal landscape, where external recognition can significantly influence the perceived legitimacy of a new government.
Implications for Legal Theory
Despite these criticisms, Kelsen’s Pure Theory offers valuable insights into the nature of legal validity during revolutionary changes. By divorcing law from morality and focusing on formal structures, the theory provides a unique lens through which to understand how legal systems adapt to radical disruptions. It highlights the importance of social acceptance and effectiveness in establishing legal authority, a perspective that remains relevant in contemporary discussions of state-building and transitional justice.
Furthermore, Kelsen’s framework encourages a degree of analytical clarity by avoiding the conflation of legal and political considerations. While this approach may seem overly abstract to some, it serves as a reminder that legal validity does not necessarily equate to moral acceptability—a distinction that is particularly salient in the context of revolutions, which are often fraught with ethical dilemmas. Therefore, Kelsen’s theory, though limited in certain respects, contributes a structured and systematic approach to grappling with the legal implications of revolutionary change.
Conclusion
In conclusion, Hans Kelsen’s Pure Theory of Law provides a distinctive framework for understanding revolutionary changes of government through its emphasis on the Grundnorm, hierarchical norms, and the principle of effectiveness. It accounts for the transition from one legal order to another by recognising the emergence of a new basic norm once a revolutionary system gains widespread acceptance. However, the theory’s focus on formal validity and effectiveness reveals limitations, particularly in addressing the socio-political complexities and interim uncertainties of revolutions. While Kelsen’s approach offers analytical clarity and a clear separation of law from morality, it struggles to fully engage with the normative and practical challenges posed by such upheavals. The implications of this analysis extend beyond Kelsen’s work, prompting further reflection on how legal theories can balance formalist principles with the messy realities of political change. As such, while the Pure Theory provides a sound starting point, it invites supplementation by other perspectives to address the multifaceted nature of revolutions in modern legal contexts.
References
- Finnis, J. (1980) Natural Law and Natural Rights. Oxford University Press.
- Kelsen, H. (1945) General Theory of Law and State. Harvard University Press.
- Kelsen, H. (1967) Pure Theory of Law. University of California Press.
- Raz, J. (1979) The Authority of Law: Essays on Law and Morality. Oxford University Press.
