The ideology behind the pure theory of law

A tough Austrian scholar and jurist named Hans Kelsen advanced the philosophy behind the pure theory of law. He developed this theory because he was adamant that then-current legal philosophies (during the 20th century) were conventional and intended to elevate either social or natural studies to the status of law. (Kelsen & Knight, 2009). Additionally, he believed that political beliefs that were already in place had tainted the philosophies. Due to the fact that his theory would only be founded on the law, it would be pure, he reasoned. Modern legal positivism has its roots in the 18th and 19th centuries among scholars such as John Austin and Jeremy Bentham, but H.L.A. Hart is more commonly associated with the theory due to his prominent English writing on the theory. The theory suggests that laws arise from a given legal authority that is recognized socially (Green, 1999). Based on this, a law is considered to be based on some social fact and not its perceived merit. The law in play in a given society is based on the social standards that are deemed acceptable by the legal authority present. Therefore, according to legal positivism, the law is considered to be a result of social construction, since it is based on what has been ordered, practiced or tolerated over a period of time (Green, 1999). Arguments are always rife on the legitimacy of both approaches. This paper will do a comparison of both theories to determine the differences that exist between them, and any similarities that may be present between the two theories.

The Differences between the Theories

The first difference between the two theories is the extent of separation between jurisprudence and other fields such as politics, ethics or psychological considerations. The modern legal positivism theory does not show high extent of separation between these fields, especially between jurisprudence and politics. Bentham and Austin who were the first introducers of legal positivism, suggested that laws are characteristic of large societies that are usually under a sovereign power. This power demands respect from everyone without necessarily respecting anyone else in return (Mirfield, 1989). Laws in this type of society are as a result of the sovereign power commands’ forming legal systems that are characterized by commands and forced obedience, achieved through sanctions, threats or force. This type of system is created without considering whether the commands issued are laudable or if the sovereign power even possesses the moral right to rule (Mirfield, 1989). The pure theory of law, on the other hand, is based on an explicit separation between jurisprudence and these other fields, inclining towards the natural and social sciences (Telman, 2010). This separation aimed to make it easier to analyze law since each field or discipline has a different methodology or approach. This makes it hard to analyze law when it is found mixed up with all these other disciplines.

The second difference lies in the normative language that is used in describing the law under both theories. Under the legal positivism, the language used is based on talks on authority, obligations and rights, and this language boils down to statements on obedience and power, aimed at instructing subjects on what they are supposed to do. Therefore, the normative language is considered reductive, and suggests a society where the sovereign power is allowed to exert authority and the subjects are supposed to exhibit obedience. It is, however, important to note that not all laws in this type of system are considered as commands, and therefore, the law does not only serve to cause obedience but may act to guide or orient the subjects. On the other hand, the pure theory of law takes an entirely different approach. Kelsen suggests that his approach acts as a system offering indirect guidance to the subjects, and that the law only acts to tell officials what they are supposed to do, should a subject behave in a given manner (Telman, 2010). Therefore, the law is considered as a conditional order that the courts receive to direct what sanctions should be put in place if a certain action is performed by the subjects.

While both theories are monistic, as they agree that all laws have a single form, aimed at imposing some obligations on the subjects, a difference exists on how both theories view the source of unity present in legal systems. The modern legal positivism postulates that this unity is brought about by the fact that all existing laws exist and are under the command of one single sovereign power (Green, 1999). This belief is different from the one present in the pure theory of law, where Hans Kelsen believes that all laws are in fact links that make up a single chain of command. According to Kelsen, a law will only gain its legal-normative meaning only through the conferring of this status by another existing law or legal norm, and the legal norm conferring the status can only do this, if it was created in accordance with another higher law or legal norm (Kelsen & Knight, 2009). This chain can continue until we reach the highest legal norm of a given nation, for example, in the United States of America there is no higher legal norm than the U.S. Constitution, and therefore, we do not expect it to have been authorized by any other higher legal power. We, therefore, presuppose that it is legally valid as it is. Furthermore, the unity in a legal system, under the pure theory of law, is achieved by all laws originating from a single source in a hierarchical manner.

The other difference is found in the source of validity for their norm. Since the modern legal positivism suggests that all laws arise from a single legal authority, then this body is solely responsible for determining the validity of their norms. Under this, norms are easily considered to be objectively valid. The validity of each single norm is, therefore, independent of each other and only dependent on the sovereign power, who can either validate or invalidate any legal norm as he pleases (Green, 1999). However, the pure theory of law does not consider any norm to be objectively valid, and this validity will only arise from another norm that is presumed to be already valid. This assumption is made formal by Kelsen’s introduction of a new entity called the Grundnorm or the basic norm. This new entity is not considered as an actual legal norm, but anyone examining the legal system will designate it as a valid norm. Any norm that becomes derived from it will be considered a legal norm in that system (Kelsen & Knight, 2009).

A difference also arises on the content and existence of a law. The modern legal positivism suggests that social facts or structures are responsible for the content of existing law, and that the merits or demerits of the law do not influence the content of the law. From this point of view, one might argue that this theory considers the merits of a law to be meaningless and that they should be shunned when analyzing the philosophies of law. However, this view is inaccurate since the theory only proposes that in a society practicing legal positivism, merits will not determine the existence of legal systems or laws. This existence is only determined by the existence of a given governing body, regardless of whether these legal systems or laws fully satisfy the ideals of the rule of law, justice, and democracy. Therefore, an unjust, inefficient and unwise policy may be made into a law depending on the social standards of the governing bodies, and this cannot be used as a reason for doubting the legality of the given law (Mirfield, 1989). On the other hand, in the pure theory of law, the merits associated with a certain law are an essential content of the law. This is because under this theory, influences from other factors such as political and social environment, are not in play. Furthermore, the suitability of a law or a legal system can only be determined from its content by analyzing it from a law oriented basis. In doing this, one has to consider the merits and demerits that will be associated with the suggested law or legal system (Telman, 2010).

The last difference arises from the type of description that is used in making statements that talk about reality. Two categories of formal statements are present based on this. These are normative and descriptive statements. The descriptive statements are usually concerned with existence, and refer to a statement “that something is,” while normative statements are more concerned with preference and will refer to the statement ”that something ought to be.” Descriptive statements are associated more with the scientific study of laws, while the normative statements are more inclined towards the legal aspects of laws.

The Similarities within the Theories

A counter argument will show that despite all the differences that exist between the modern legal positivism and the pure theory of law, there exist some similarities in the application of the two theories. The first similarity is the integration of law with morality. Although both theories try as much as possible to separate decision made from a law basis from those made from a moral basis, this has almost proved impossible. Therefore, one has to appreciate the fact that there is some extent of integration between the law and morals, irrespective of whichever approach of the two you decide to follow. While there is a common feeling that moral judgement should not be exercised in the field of legal justice since it leads to biased judgement that may necessitate the reviewing of existing legal rule, both Hart and Kelsen admitted at some point that an explicit divide between the two theories is not easy to achieve.

The other similarity between the two theories is the role of the government in whichever of the two approaches one picks. While the pure theory of law calls for a separation of the law from all other environments present in a society, Kelsen admits that the government is an essential component in the definition of a full concept of the law. When he talks of the dynamic aspect of law, he suggests that the government has to be recognized and also recognize the legislature arm in the process of coming up with new laws that will make part of the static aspect of law (Telman, 2010). The courts that are responsible for dispensing justice and interpreting the law are also part of the government. Lastly, the law is considered to be a creation that arises from the debates between political considerations and ethical considerations. The legal positivism theory fully appreciates the role of the government which is considered to be the sovereign power tasked with ensuring the validity and invalidity of legal norms or existing legal systems (Mirfield, 1989).

Lastly, a similarity between the two is based on the fact that laws in both instances must meet some of the essential attributes that qualify them as laws. The first attribute is conscious formulation. Morality is more flexible, considering there are no actions that are set in place to enforce the performance of moral deeds, and therefore, a conscious effort should be put towards formulating laws that ensure measures are in place that will enforce proper performance of legal deeds. The second attribute is generality. This means that a law should not aim at specific people, acts or properties, but rather it should contain general guidelines to influence or control how all members of the society conduct themselves. Very specific laws aiming at a given group within a society may be viewed as mostly being discriminatory against them. Finally, authoritative enforcement is considered as the last attribute. This means that any law should be backed by the states authority, such that any member of the state is tasked with the responsibility of obeying such rules. This allows the individual tasked with law enforcement to either work through incentives or sanctions to ensure that all laws are followed, provided that their actions do not exceed the limits allowed by the law.

Conclusion

In conclusion, inherent differences exist between the modern legal positivism theory and the true theory of law. One major difference lays in the fact that true theory of law calls for an almost complete separation of jurisprudence from other factors such as politics and ethics, while in the legal positivism this separation is not very apparent. The two theories also have very different source of unity for their laws, where legal positivism derives unity from the fact that all laws arise from a single sovereign power who is also responsible for determining their validity, while in the pure theory of law, unity is achieved by the fact that each law receives power from a previously existing law. Lastly, the modern legal positivism does not consider merit as an important content of the law as long as the governing authority consider the laws appropriate, but in true theory of law, merit is an important content determining the suitability of a law.

References

Green, L. (1999). Positivism and conventionalism. Canadian Journal of Law and Jurisprudence,

12(1), 35-52.

Kelsen, H., & Knight, M. (2009). Pure theory of law. New Jersey: The Lawbook Exchange.

Mirfield, P. (1989). In defense of modern legal positivism. Florida State University Law Review,

16(4), 985-999.

Telman, D.A.J. (2010). A path not taken: Hans Kelsen’s pure theory of law in the land of legal

realists. Valparaiso University School of Law. Retrieved from http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1091&context=law_fac_pubs