Professor emeritus, Hans Kelsen, was born on October 11th 1881 in Prague Austria to

Jewish parents. He moved to Vienna with his family when he was three years old. He

studied law at the University of Vienna and took his doctorate in 1906 at the age of 25.

In 1911 he started holding university lectures in public law and legal philosophy at the

University of Vienna. In 1919 he became a full professor of public and administrative

law. He also became a dean of the faculty of law at the University of Vienna from 1922

to 19231.

Professor Hans kelsen began his career of legal writing in 1911 with his first major work,

“Main Problems in the Theory of Public Law”, which had over 700 pages while the writer

was barely 30 years of age when it was published, and through this work he received

widespread attention.2

But, because many of his basic views and methods of analysis ran counter to tradition,

the first reactions to him were often critical and even hostile indicating that his

approaches to the chief problems of law and state had offended traditional legal and

political theories3. Yet, reactions of approval and encouragement were not lacking. He

received hail from the reviewers of his work for his attempt to translate

transcendentalism into the philosophy of law.4

His influence grew rapidly because of his highly prolific literacy output on key aspects of

law and state which showed the applicability of his pure theory of law to many intricate

specific problems.5

At the end of 1920’s, he left Austria to occupy a chair at the University of Cologne. In

1930 he published his first edition of pure theory of law. This made him to become the

1 www.wikipedia.org/wiki/hans_kelsen#biography (for the whole paragraph) 2 William, E., ”The pure theory of law: Demythologizing Legal Thought”, 59 CALIF. L. REV, P. 617.3 Ibid.4 Ibid.5 Ibid.

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famous jurist and legal philosopher of the 20th century on the philosophy of positive

law6. The Nazification of Germany in 1933 forced him to leave Germany, and after

temporary stay in various European countries, he finally settled in the United States. He

concluded his official academic career at the University of California at Berkeley in 1952,

and ultimately died in April 19th 19737.

He published hundreds of books and articles in his lifetime translated in different

languages in which he tried to find a solution to the basic problems of the general legal

theory and state.

His contributions to the development of legal theory in the whole of his lifetime,

through his pure theory of law made him to be regarded as the positivist of positivists.

The Pure theory of law, according to him is a theory of positive law which is concerned

solely with that part of knowledge which deals with law excluding from such knowledge

everything which does not strictly belong to the subject matter law.8

The theory arose during the 19th century in which capitalism had reached the monopoly

stage. In the field of philosophy, new thinking was emerging and several branches of

sociological jurisprudence were being entertained which took into account political,

ethical, ideological, and value considerations in the study of law.

This form of thinking enjoyed the support of the Marxist thinking which sought the

source of law from historical socio-economic condition. This new development together

with the fact that philosophers like Austin and his command theory which still

sympathized to some extent with element of natural law and morality, made the

bourgeoisie very uncomfortable. As a result the bourgeoisie wanted the purification of

the law from these extraneous matters which according to them were contaminating

the law.6 Ibid. p.6187 Ibid. p.6198 Freeman, M. D.A., Lloyd’s introduction to jurisprudence, Sweet & Maxwell ltd., London.

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Therefore, the duty of purifying the law fell on Hans Kelsen. He took up the duty

seriously to make a structural analysis of positive law with an intention to free all ethical

or political judgments concerning the values from the law and pay no attention to such

extraneous matters to law as well as remove from the study of law all the illusions

concerning its nature which made its past study unproductive.

The result of his structural analysis of positive law, according to him was a pure theory

of law which is free from those extraneous elements that has spoiled the methods of

study of law.

His rejection of analytical positivism also made him to be regarded as a positivist of

positivists because; he differentiated his theory from the empirical tradition of analytical

positivism. He rejected analytical positivism propounded by other positivists prior to him

such as Augustine Comte, John Austin, Finnis, Bentham, and others on the basis that

their analytical positivism confused the law with facts9. Facts to him constituted laws

made by the legislative bodies through the authority of the sovereign, and morality.

Therefore, to him, the pure theory of law was an improvement over theories of

analytical positivism.10

According to kesen, Austin and his command theory for example, still embraced foreign

elements in the subject matter law. His classification of law properly so called and law

improperly so called maintained impurities in the subject matter law. This is because the

law improperly so called as classified by Austin contained nothing than moral

sentiments.

Not only that but also even the positive law which Austin and his followers claimed was

not positive in real sense of the term, because it was mixed with facts11. Its validity

depended on the will of the sovereign. Thus, it did not qualify to be positive law since to 9 Ratnapala, S., (2006) Jurisprudence, Cambridge university press, Cambridge. P.3010 Finil, J., (1874), Introduction to legal theory. Sweet & Maxwell ltd., London. p. 236.11 Ibid.

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kelsen positive law is derived from norms. The validity of these norms is derived from

another norm within the legal system. Therefore, the validity of positive law must be

found in the law itself rather than in some extra-legal sphere like the sovereign as said

by Austin.12

His rejection of natural law, or the so called laws of nature, which other positivists such

as Austin, Bentham, and their followers embraced in their theories made him to be

regarded as a positivist of positivists. According to him natural law confused positive law

with morality, and has nothing to do with positive law at all for the simple reason that it

is not content to trace law from law, rather than contaminating the positive law.13

Therefore, according to kelsen, what other positivists propounded as positive law only

amounted to facts.

But, according to him law cannot be made by parliament. It cannot be made by the

sovereign even, as said by Austin, but it can only be derived from legal norms. To him, a

legal norm is the meaning ascribed to such facts by which a certain behavior is

commanded, permitted, or authorized.14 It is an ought proposition that creates a duty to

behave in a certain way by imputing a sanction to the breach of such a duty.15 According

to him, this ought proposition should not be understood in its ethical sense, but in the

sense of formal ought which signifies that under certain circumstances, the state will

exercise certain coercive power to enforce certain behavior.16

Another point which makes kelsen to be regarded as a positivist of positivists is his

theory of grundnorm or basic norm. According to him the validity of a norm can be

12 Ibid.13 Ibid.14 Ibid.15 Ibid.16 Patterson, E.W., (1952), “Hans kelsen and his pure theory of law”, 40 CALIF. L. REV., P. 5

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derived not from the fact that something is, but only from another norm, and the legal

system is made up of a sum total of such interdependent norms17.

In ascertaining whether a specific norm is valid one must inquire whether and how it is

derived from another norm which may be considered as the higher norm18. For

example, the legal validity of the statutory acts of the legislative body must be derived

from a valid norm which is the constitution. Under the constitution, the legislative body

is authorized to create such statutes. In seeking to ascertain the validity of the

constitution, one finds that it cannot be derived from any higher legal source since it is

itself the highest legal source from which all other norms are derived19. Therefore if the

validity of the highest legal norm, the constitution, cannot be derived from another legal

norm, it can only be derived from a non-legal norm which he call it a basic norm or

grundnorm.20

According to Kelsen, the validity of this basic norm is presupposed, and it is not itself a

positive law21. Without such a presupposed basic norm conferring validity upon the

constitution, the constitution would have no legal character, and the norm below the

constitution, that is, legislations, judicial decisions, and executive acts, would have no

legal character either, since the legal validity of a norm can only be traced from another

norm higher to it.22

For example, if A is sentenced to imprisonment, this sentence can be traced to a norm

of judgment by the judge, the validity of this judgment is traceable to another norm, the

penal code setting up the punitive law, the penal code is based on another legal norm,

the state constitution, which set up the rules and procedures for enacting the penal

17 Op.cit., William, E., p.62618 Ibid.19 Ibid.20 Ibid.21 Ibid.22 Ibid.

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code; the validity of the constitution can be traced to another norm, the older

constitution or the historical one which is the basic norm.23

23 Mkoyogo, “ Critique of Hans kelsen’s pure theory of law” 7 D.U.L.J., (1978), P.217.

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