Jurisprudence: Kelsen's Pure Theory is not Positivism
jurisprudence clat_pg beginner agree_disagreeKelsen's Pure Theory is often misconstrued as a form of positivism in Jurisprudence. However, this is a gross oversimplification. Kelsen's core idea is that law is a normative system, and its validity stems from a basic norm or the "Grundnorm". He argues that this basic norm is not a moral or natural norm but a pure, abstract norm. The key is that Kelsen rejects the idea of a higher moral authority to validate laws, setting him apart from positivists like Hart. While positivists see law as a product of social facts, Kelsen's Pure Theory emphasizes the autonomous, self-contained nature of law. So, calling Kelsen's theory a variant of positivism is misleading; it's actually a distinct, normative approach to jurisprudence.
2 Comments
Yeh baat to sahi hai ki Kelsen ki Pure Theory of Law alag hi hai Positivism se. Uska kaha hai tha ki Law ek system hai jo rules aur norms par aadhaarit hai, lekin yeh kya hai yeh kaafi hi ghabrayeja hai. Kelsen ka kaha hai tha ki yeh system ek closed system hai, jismein rules aur norms apne aap ko bind kar dete hain.
I don't think Kelsen's Pure Theory can be so easily dissociated from Positivism. His emphasis on legal norms being detached from moral values and social facts, actually aligns him closely with Hans Kelsen's understanding of law. His theory is an extension of Positivism's core principles. I think we should not try to disown Kelsen from this philosophical stream so easily.