What Kelsen meant by stating that his theory of law was a ‘pure’ theory of law
The meaning of Kelsen’s views of the theory of law as pure are intended to discuss, analyze, describe, and assess the law in the exemption of things that hold no relevance to legal philosophy. The thinking, description, analysis, and assessment of the law should be based on pure approaches that are essential and make sense to the legal and philosophical concept in which the law is based upon. This is to imply that, for the law to be pure, its description is stripped-down all the theories of law. The main and only concern when describing Kelsen’s theory of law is based only on what is core to the conceptualization of all law (Kelsen, 1). That is, the law is maintained as pure because it maintains the capacity to be applicable in all aspects of law and legal systems. This is applicable in a universal and transcendent manner where all laws are functional everywhere and at all times.
Kelsen’s pure theory of law shows no tendency to possess or illustrate any form of bias, ideological or theoretical. This is because it eliminates any theory or description of the law based on factors such as historical, political, sociological, ethical, or functional influences. Instead, the law remains to be pure and functional in all times. The only concern for the law entails the core conceptual structure and concepts shared by all legal systems everywhere (Kelsen, 3). Kelsen implies the ‘pure’ theory of law provides the continuity of the law in legal systems irrespective of other factors that may influence its state, meaning, or implication. Rather, the law is maintained in a form that it is universal and applicable in all legal systems at any part of the world and at different times equally. Thus, the pure theory of law indicates that the law must be transcendent and universally applicable across time and geographical locations or jurisdictions.
Securing ‘purity’ for the theory of law
In securing ‘purity’ for the theory of law, Kelsen proposes that the law formulation must be devoid of four core aspects. These include sociological descriptions of the law, historical descriptions of the law, political or moral assessments of the law, and any assessment to the law that makes reference to the functions or purposes of the law. The exclusion of sociological descriptions of the law comprise of the social forces that prompt the creation and implementation of the law. Such include demographic groups and intellectual labor divisions that make suggestions to the law. The historical events leading to the evolution and development of laws through time indicate the applicability of the laws in specified periods. The political and moral assessments present issues such as need to promote equality, individual liberties, and social cohesion (Kelsen, 3). This affect the settings of the legal structures across different societies. The evaluation of the law based on functionality and purposes negates the very core in which pure theory of law is established. Such include laws guiding business, institutions, among other spheres. Therefore, to secure the ‘purity’ for the theory of law, Kelsen asserts that all concepts that are not relevant to the law must be eliminated. Only that which concerns itself with the law should be retained for proper and absolute laws.
Views on Kelsenian Sense as a Valuable Quality in a Theory of Law
What Kelsen proposes would be a great phenomenon in exerting the value and quality in the theory of law. However, this remains to be largely theoretical and impossible to implement. The capacity to realize Kelsen’s views would culminate in the creation of a pure society in which the laws are the guiding principles and apply equally across the universe. This is impossible to achieve as humans are rational beings. As rational beings, humans are driven by different needs, perceptions, and understandings. At no point would the universality of the law be attained as an indication of its purest form. The pure theory of law fails to provide the mechanism in which the views of the minority of differing would be incorporated to the universal sense. As well, human beings and societies in which legal systems are established are driven by sociological, political, moral, historical, and need to find purpose and functionality of the law in different contexts. This impedes the potential of attaining the ‘pure’ theory of law. Therefore, on all accounts, the ‘pure’ theory of law is destined to crash and exhibit different characteristics in different societies.
Kelsen, Hans. Pure theory of law. Univ of California Press, 1967.