Introduction:- The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna School” because Kelson is the productor of Vienna University. This theory resembles with Austin’s command theory because in Kelson’s theory there must be sanction behind law. Austin gave it the name of command theory and Kelson gave it the name of grandnorm theory. Kelson is affected by local conditions, natural condition and international condition. After studying all these conditions he gave this theory of Law, which is known as pure theory of law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world was which destricted the property of human beings at international level. So he gave power to the international law and avoiding the destructions of the world. Secondly during that time many countries adopted written constitution. So Kelson also get influenced from these written constitutions and gave his own theory which is based on grandnorms.
Grandnorm or Grudnorm
Grand means great and norm means Law, So it means a great law the superior authority from which law comes out. He compared the grandnorm with written constitution. According to him written constitution is the highest authority in the country which is known as grandnorms. In England the Parliament is a grandnorm, in USA written constitution is grandnorms and in India too written Constitution is grandnorm. State is not above the grandnorm. Sovereignty also liven in grandnorm. Accoding to Kelson law is a motive nor science, it means science of norms. In laws only those rules are taken which are related with legal aspects. Any others like moral rules, religious rules, ethical rules do not come under the concepts of grandnorm. Here Kelson is equal to Austin. When he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy. In hierarchy system there is one highest authority and all other are lower authorities. This highest authority was grandnorm which was in the form of written constitution and other authorities are below the constitution. The source of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This force lies in the grandnorm. If this legal norm is not obeyed then one person will be punished for it. He also says that at this time international law is immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the formation of grandnorm according to local conditions. The duty of jurists is to interpret the grandnorm in their own language. They are not concerned with the goodness or badness of the grandnorm. They are not concerned with the origin of the grandnorm. In this way the grandnorm is the main source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about State, sovereignty, public and private law, public and private rights, international law private and juristic law.
Feature of Kelson’s theory:-
1. Grudnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in the form of written constitution. Any such body, which contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no difference between law and State between because they get power from the same grandnorm. Law comes from the grandnorm and the state also comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person which keeps controls over the politically inferior persons. But Kelson says that the power of sovereign lies in the people. So the Sovereign is not separate and superior from the people of the country.
4. No difference between public law and private law:- The public law is related with the state and the private law is related with the individuals as Kelson says that there is no difference between public law and private law. The law which creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson was to decrease the tension at world level because there was Ist world war which destroyed millions of persons and property. He also said that the internaiton law is in primitive stage or immature stage. It means it is in developing stage. One day will come when international law will get equal to that of municipal law. So this is also enforceable.
Criticism of Kelson’s theory:- In-spit of having good concept of pure theory given by Kelson some of the criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It cannot be applied where there is no written constitution. The base of grandnorm in the form of positive norms or the rules based only on legal order is not clear. The rules, which are not linked with morals ethics. Customs and religion are not the norms. But we can not ignore the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of international law. But even upto now we see that is no force behind international law.
c. No difference between state and law:- this point is also criticised by various writers. Law as a separate thing from the State. State is body is law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that there is no different between public law and private law. Which is also not right in the modern days.
e. Customs and Precedents ignored:- He also customs as a source of law while we see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles yet he had contributed a lot in the development of the society. Thus the concept of grandnorm gave power to the public at large as well as at national level. His main purpose was to stop destruction of any world war. This can resemble to Austin also Kelson is also limited with the law.
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Definition, nature and scope of Jurisprudence.
Introduction -To study a subject means to explore each and every aspect of that subject. The very first thing we come across while initiating the process of studying a subject is the name of the subject. ‘Jurisprudence’ is a word made up by adding two words ‘juris’ and ‘prudentia’.
Juris (Law) + Prudentia (Knowledge) = Jurisprudence (Knowledge of Law)
So Jurisprudence is the theory and Philosophy of law which gives us knowledge of law. Jurisprudence helps us understand how the law came into existence. Different theories given by different jurists show us the various forms in which law emerged at different places and in different conditions. Jurisprudence is the philosophy of law through which scholars of law tried to have a deeper knowledge about the nature of law, different legal systems and their reasoning behind the emergence and existence of a law in those legal systems. Modern Jurisprudence that begins in 18th century focussed on the first principles of natural Law, civil law and law of nations.
General jurisprudence seeks to answer all the queries arising in the mind of a layman or a legal scholar and these questions can generally be divided into following parts:-
i) Problems of law as a social institution
ii) Problems of a legal system
iii) Problems of a particular law
So, jurisprudence is the skill of law and the whole systematic thinking about legal theory is linked with both philosophy and political theory. In some conditions the starting point is philosophy and sometimes it is political ideology, as in the legal theory of socialism.
Definition of Jurisprudence
Romans started many branches of knowledge and ‘Jurisprudence’ is one of them. The Romans never confused law with religion but this distinction was not found in the beginning of jurisprudence. The definition of Jurisprudence given by Roman Jurist ‘Ulpian’ is as follows:-
“Jurisprudence is the knowledge of things divine and human and the science of right and wrong”. This definition could be understood in two parts:-
1. Knowledge of things divine and human.
2. Science of right and wrong.
First part explains that the laws could be made by both divine powers and human beings and jurisprudence is the study of all kind of laws.
Second part explains that it is the science of right and wrong which means that jurisprudence guides us what acts of a person are just and which one are just.
According to Gray, “Jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules.” So according to him jurisprudence is the study of rules which are systematically arranged and are followed by the courts.
According to Holland, “Jurisprudence is the formal science of positive law”. By formal science he means that which deals with various relations which are regulated by legal rules.
All these definitions give us two main things:-
1. Jurisprudence is the science of different laws which have different origins.
2. Jurisprudence is not only the study of law but it is the study of the basic concepts that form law.
Salmond, defines jurisprudence as the ‘Science of law ‘and divides it into two parts: – Generic & Specific.
1. Generic Jurisprudence- As the word ‘generic’ suggests, the generic jurisprudence study all types of legal doctrines.
2. Specific Jurisprudence – The word ‘Specific’ shows that specific jurisprudence means the study of a particular department of such doctrines.
Specific Jurisprudence could be further divided into three parts:-
a) Systematic Jurisprudence- It deals with the legal systems that exist in different times. For example, legal system at the time of Mughals differs from the legal system at the time of Britishers and the present legal system.
b) Legal History- It deals with the historical development of different legal systems. How they developed? How the changes from one system to other took place?
c) Science of Legislation- It deals with the reason of existence of a law and the probable future of that law.
He further divided jurisprudence into 3 branches:-
(I) Analytical jurisprudence: – The branch of jurisprudence gives analysis to basic principles of civil and their interpretation. The purpose of this branch of study is to analyse and dissect the law of the land as it exists today. This analysis as the principles of the law is done without reference to their historical origin or their ethical significance. Analytical jurisprudence it examines the relations of civil law with other forms of law, analysis the various constituent ideas of which the complex idea of the law is made up.
(II) Historical Jurisprudence :- Historical jurisprudence deals with the general principles governing the origin and development of law and also the development, evolution of the legal conceptions and principles found in the philosophy of law. Therefore, historical jurisprudence concerns with the historic evolution of the principles of law i.e. the past stages of the law. It constitutes the general portion of legal history, and as Salmond observes, bears the same relation to legal history at tame as analytical jurisprudence bears to the systematic exposition of the legal system. As the historical jurisprudence only concerns itself with the scientific study of the origin and development of the principles of law, therefore it is the study of law as it is as.
(III) Ethical jurisprudence:- The branch of jurisprudence deals with basic principles of ethics and moral values. Ethical jurisprudence is a branch of legal philosophy which approaches the law from the viewpoint of its ethical significance and adequacy. It deals with the law as it ought to be an ideal state. This area of study brings together moral and legal philosophy. It is connected with the purpose of which the law exists and the manner in which such purpose is fulfilled. Salmond observes that ethical jurisprudence is the meeting point and common ground of moral and legal philosophy of ethics in jurisprudence. Ethical jurisprudence has for as its object the conception of justice, the relation between law and justice
Importance and scope of Jurisprudence:-
1. Jurisprudence works towards constructing and elucidating legal concepts so as to minimise the complexities of law.
2. It helps in the logical analysis of the legal concepts.
3. It helps to determine the actual meaning of the law according to the needs of the society.
4. It helps judges and lawyers to ascertain the meaning of words and expressions in the statutes.
5. It helps in making scientific development of law.
6. It trains the critical faculties of the minds of the students to ascertain and use the actual meaning of the terms used in an act.
7. Professor Dias said that “the study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence.”
Jurisprudence is lawyer’s extraversion :-
This statement was given by Julius Stone, he meant that jurisprudence is lawyer’s examination of the precepts, ideals and technique of the law in the light derived from present knowledge in disciples other that. It means only knowledge of law is not sufficient and for complete knowledge it is to be studied in connection with sociology, political science, history etc. The jurisprudence inspires and contains the interdisciplinary approaches to law. Jurisprudence is the lawyer’s extraversion.. It is an attempt, which must always remain imperfect, to fulfil for the law the object strikingly posed by the late Mr. Justice Holmes of showing “the rational connection between your fact and-the frame of the Universe. To be master of any branch of knowledge you must master those which lie next to it.”An interdisciplinary approach is indispensible to the study of jurisprudence as it deals with the ever changing possibilities in the development of law according to the changing needs of the society and contemporary knowledge explosion. The ‘extra-legal version’ approach has also been adopted by the Supreme Court, particularly Mr. Justice Krishna Iyer, expounding the philosophy of jurisprudence as a lawyer’s extra version in a number of cases. He was of the opinion that the roots of jurisprudence lie in the soil of society’s urges and the bloom in the nourishment from the humanity it serves. Jurisprudence inspires the development of knowledge; it not only encourages studying different theories of law and reproducing it, rather inspires how to use these theories in critically and reflectively developing positions of one’s own.
Legal Prudentia 