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A CRITICAL ANALYSIS OF KELSEN’S PURE THEORY OF LAW WITH SPECIAL EMPHASIS ON ITS DISREGARD TO JUSTICE
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A CRITICAL ANALYSIS OF KELSEN’S PURE THEORY OF LAW WITH SPECIAL
EMPHASIS ON ITS DISREGARD TO JUSTICE
AUTHORED BY
- A. GITAPRIYAVARRSHINI, BC0220013
Tamil Nadu
National Law University
(A State
University established by Act No. 9 of 2012) Navalurkottapattu, Srirangam (TK),
Tiruchirappalli – 620009, Tamil Nadu
Introduction:
The theories of
law propounded by both the positivists and naturalists emphasize on one
main objective, i.e, regulating human conduct in a particular way[1]. Hans Keslen, an Austrian jurist is a rigorous positivist
who excludes law from all other ethical, sociological, historical, political
and psychological influences[2].
He finds the true essence of the law’s command from its
own letters. To validate this theory he introduces the ‘Grund norm Theory of
Law’, where he states that, the other system of law is based on a higher
fundamental law that could only be changed by political revolution[3].
In order to develop this theory kelsen utilized Hegelian Philosophy of studying
jurisprudence, where hegel wanted to place all cultures in an extensive
philosophy of history. This in turn motivated kelsen
to define a basic central
principle which will ultimately include other legal
structures of all cultures[4].
Kelsen argues that
when checking the validity of law, going up the hierarchy of law one has to
arrive at a finishing point. And if there’s no such finishing point, then the
process of checking the validity of the law becomes a never ending process[5].
He also affirms that there can vary differently in each legal order, but there
shall be grundnorm which exists in any form such as a constitution or a will of
the dictator. It does not dictate the content, rather it is a mere
pre-supposition which only imparts the validity to
the constitution and other subordinated laws that are derived from it[6].
Thus this research
paper seeks to critically analyze
the pure theory
of law of Hans Kelsen by interlining it with different
theories of justice such as John Rawls, Aristotle, Plato etc. The paper aims to
ascertain how this rigorous positive law theory disregards justice. Thus the
researcher will rely upon secondary resources to comprehend the argument
effectively.
Research Questions:
1.
Whether Kelsen’s pure theory of law undermines justice?
2.
Whether Kelsen's pure theory of law intends
to place law and justice
in distinct disassociated
spheres?
Research Objectives:
1.
To examine the intricacies of the Pure theory of Law introduced by Hans Kelsen
.
2.
To evaluate the Pure
Law theory of Hans Kelsen through the lens of theories of Justice of Philosophers.
3.
To investigate the relation between
law and justice.
Statement of Problem:
Though there are
many discussions held on how kelsen’s pure law theory disregards justice, the
widely accepted conclusion akin Kelsen was that, “the law and justice are two
different principles and don't have any relation with one another”. Hans Kelsen’s Pure theory of Law emphasizes only on the hierarchical structure of norms and its validity, and deliberately excludes the considerations of justice within
the framework of legal positivism. This deliberation of
Kelsen in itself erodes the validity of law.
Research Methodology:
This research
paper has utilized doctrinal methodology of research. Various journal articles,
books were used by the researcher to gain fundamental knowledge on the purview
of Pure theory of Law.
Limitation:
The study will not cover all the existing theories of justice and picks up only
the justice theories that are required for testing the applicability of
Kelsen’s pure theory within the circumference of legal positivism.
Review of Literature:
1. Joseph Raz, “Kelsen’s Theory of Basic Norm”, The American Journal of Jurisprudence,
Vol. 68, (2023). The author of the article provides a detailed
theoretical explanation of Hans Kelsen’s Grundnorm theory. The central argument
of this article is that the attempt of kelsen in rejecting natural law theories
in itself constantly uses the concept of natural law normativity. The article
in this way evaluates the theory with illustrations which has provided the
researcher to grasp the theory effectively.
2. Hans Kelsen, “The Pure Theory of Law and Analytical
Jurisprudence”, Harvard Law Review,
1941, vol. 55, (1941). pp. 44-70. The philosopher intends to preclude
the law from other foreign elements. He aims at two aspects
in drawing a limit to this theory. He states that jurisprudence has
to be distinguished from philosophy of justice and from sociology. This work of
the author made the researcher analyze how the pure theory of law disregards
justice.
3. John Rawls, “A Theory of Justice”, Harvard University Press, (1971). pp. 3- 86. This book
provides a greater insight to the theory of justice propounded by John Rawls.
His theory of justice that introduces the principles of Minimax principle and
the original position. The author wanted to
present a viable
doctrine to the readers by emphasizing on the idea of maximizing the good of the
people.
4. Bibi Hamedi, “The Concept of Justice In Greek
Philosophy (Plato and Aristotle)”. Mediterranean
Journal of Social Sciences. (2014). vol. 5, pp. 1163. The author
of the article discusses the theories of justice propounded by Aristotle and
Plato in brief. The article seeks to view both the theories from the same
perspective and persuades the readers that, both the philosophers aim in
finding a principle that brings unity, harmony and happiness in a society. The
author concludes that both the theories of justice are functional and
teleological and contain moral principles.
5. Chris Brown, “On Amartya Sen and the Idea of Justice”,
Ethics & International Affairs,
vol. 24 (3), (2010). pp. 309-318. This article discusses the theory
of justice of Amartya Sen comprehensively which has shaped the fundamental
understanding of his idea and its relevance in the contemporary period. The author has examined the theory in light of the criticisms on Rawls's
theory of justice by Amartya Sen. The article is easily graspable as it also
provides various examples and illustrations used for assessing its applicability.
CH 1: INTRICACIES OF THE PURE THEORY OF LAW
OF HANS KELSEN
The pure law
theory of kelsen though has its own significance has faced many challenges
in its practical applicability as the theory reflected rigorous positivist
notion. Kelsen postulates that each legal system should have a basic norm,
whose existence is measured on its validity[7]. The
pure law theory has deviated
itself away from its very own objective. Therefore, this chapter
will analyze the intricacies in the pure law theory provided by Hans Kelsen.
1.1. Inconsistency “within” two axioms propounded by Kelsen:
He also adds on
that two basic norms differ in its content though it may have similar
structure. The ultimate motive of kelsen is to unify legal systems and that’s where he provides two axioms. The first is
that, when there
exists two laws which may directly or indirectly authorize the creation of the
other belong to the same legal
system[8].
The second states that all the laws that exist
in a legal system are directly or indirectly authorized by a single
law[9]. Comparing these two axioms it could be
noted that a single,
basic law’s existence is required for the other two law’s creation. So
the second axiom most likely
exhibits an empirical conclusion which
is in turn inconsistent with
the positive nature of his theory.
Therefore, he
proceeds to correct the second axiom stating that this basic single law should be non positive in nature which does not depend on any law
making authority and is merely a logical necessity[10]. From this, it could be inferred that, being a stringent positivist who completely rejects the natural law theory himself, provides
that the basic or the so called grundnorm should have certain naturalistic
characteristics.
1.2 Division
between the Facts and Norms:
Kelsen, by
introducing the basic norm theory, wanted to bridge the gap between norms and
facts, i.e, between “is” and “ought”. This again became one of the central
characteristics of “Normative
Hierarchy”[11].
The utmost significance of this division is to have at least one ought premise
which according to him serves the purpose of law, i.e, obeying the command of
the creator. As he doesn’t consider morality
or the subjective nature of law, and just emphasizes on accepting
the order or coercive nature of norm, he created the stringent division
between ‘is’ and ‘ought’ in his theory.
1.3 Absolute
Disapproval of Natural Law Theories:
Kelsen
rejects all natural law theories stating that they are metaphysical, illusional
and unscientific. Kelsen states that the entire nature law’s conception is
based on the ideal reality of laws that have objective existence
rather than imperfect statutes and precedents as completely metaphysics and are
beyond practical reality[12].
He completely rejects “morals” as an illusion which forms the part of natural
law as it is subjective in nature. He adds that the moral opinions are just personal preferences
which can’t be proved. He condemns the theories of natural law as
“unscientific” as they can’t be confirmed objectively[13].
Kelsen in order to purify the theory excludes morals and deliberately forgets
the fact that only based on morals, law could have its essence of applicability[14].
1.4 Purifying
Law from Other External Influences:
Kelsen intended
to establish value free legal theory using the concept
of normativity[15]. He wanted to separate law from
sociological, political, psychological and philosophical investigations. By
analyzing his attempt in doing so, two implications can be made. Firstly,
without a political institution like the “government” or some “sovereign power”, law cannot
exist independently or cannot be enforced without the presence of a
supreme power. And secondly, without considering the social, philosophical, and
psychological factors law cannot be furnished
which accommodates the interest of the people. Though in general, the purpose
of law is to bind the
behavior of a human, it shouldn't neglect
the interests of the people.
There has to be a balance
between the coercive nature of law and the interests of people.
Hence, his theory
which rejects the source where law actually derives
its nature of power
and application in itself is against the positive law principles. To sum up the inferences made in analyzing
kelsen’s “fictitious” pure law theory, all the addressed complexities arise due
to his elimination of natural law
theories of law. His attempt to give
pure law theory its essence, in itself deviated the principles from the notion
of positive law theory.
CH 2: PURE LAW THEORY FROM THE LENSES
OF
THEORIES OF JUSTICE
The preceding
chapter of this paper has briefly discussed the intricacies that are inherently found
within kelsen’s pure law theory.
Various philosophers like Plato, Aristotle, John Rawls and Amartya Sen have provided distinct theories
of justice and also faced a wide range of criticisms. The central question of
what is justice has been defined from many perspectives including utilitarian
perspective, political libertarian perspective that actually clashed with each
other. There’s no concrete accepted idea of what justice is, but by evaluating the distinct theories of various scholars on justice,
enables one to ascertain the core objective of justice[16].
Thus, this chapter will analyze the pure law theory from the lenses of various
theories of justice.
2.1 Plato's
Theory of Justice:
Before Plato, Pythagoras, an ancient Greek philosopher, who influenced
Plato propounded that justice is “equality”[17]. He stated that a state
should promote equality
to provide justice, where
ethical regulation of life was the central aim for achieving the same. Not only
pythagoras, various other scholars such as Cephalus, Socrates, Thrasymachus and
Glaucon argued their own perspective of justice. Most of the Greek philosophers
conceived justice in terms of maintaining order and harmony in a society[18]. They deeply supported the belief that the
state exists for the sake of life and for the good life of the people. Plato’s
theory of justice was based on ethics and morality and didn't have any legal
basis. His theory of justice was based on
two perspectives, Individual Justice and Social Justice[19].
Therefore, in his
prominent work Republique[20] justice
is defined in terms of contractual relationship between individuals and the
state which gradually resulted in the codification of the
laws in regulating human conduct and accomplishing justice. To support his
argument, he analyzed the complex concept of justice
in a wider sense where
he has established an interwoven relationship between
the individuals and the just society. In order to ascertain
the qualified person with morals who can perform the function
of statesmanship,
Plato has classified human behavior into three
categories namely, Knowledge (or Intellect/Reason), Emotion (or Spirit), Desire (or Appetite) and Justice as the
fourth virtue which balances other three human soul qualities. The virtue of
wisdom/ knowledge is possessed by the philosopher kings or the rulers who are
courageous and rational enough to rule a state. With the same categorization of
human souls, he further talks about the Myth of Metals and the earth born where each of the categories
are born mixed with metals such as gold, silver and bronze respectively.
His central view
on Justice is “One Man - One Duty”,
where the state is expected to realize the dominant natural aptitudes and
behavior that every individual is assigned in a society[21].
If this hierarchy is disturbed or meddled by the interchange of duties between
the classes, injustice happens which eventually harms the society[22].
This theory also faced criticism
especially by Nietzsche who stated that Plato's justice theory favors rigid
class division among the people and unreasonably placed rulers at the top most
ladder to the ruled[23].
With the above
discussion of perceiving law and justice from the perspective of Plato,
it could be noted that he considers the law as an outcome
of justice where the individuals are expected to perform their duty and
simultaneously the state protects their interests. However when we proceed to
view kelsen’s pure law theory from plato’s theory on justice, one similarity
can be noticed i.e, placing rulers/the sovereign at the top and expecting impulsive
adherence to the commands
of the superior without opposition. But kelsen didn’t consider ethics
and morals as Plato did. Plato took the idea of law with persuasion combined with compulsion.
The persuasion to follow the law could be guaranteed by protecting the best
interests of the people and the
compulsion gradually arises in the form of punishment[24]. Plato’s
perception of justice
as the precursor for the formation of law is not compatible with
kelsen’s grundnorm theory where kelsen doesn’t even bother about the idea of
justice.
2.2 Aristotle’s Theory
of Justice:
Aristotle, the
follower of Plato and the true founder of Naturalism contrastingly provides the theory of justice from perspective
of rights of people in a state[25].
According to him the highest thing that a man
could attain by his actions,
i.e, happiness is what justice
is. He also adds on that none desires
happiness for others
and only for the sake of other
than itself[26]. Therefore, in Nichomachean ethics, he classified justice into two types:
Distributive Justice and Rectificatory Justice. Distributive justice
encompasses on just distribution of consumable resources equally and unequally with respect to one’s
contribution to the state[27].
In simpler terms, treating equals equally and unequals unequally where an
individual's rights are made in proportion with his/her contribution towards the state.
Such a distribution is not arbitrary in nature as is it done in geometrical
proportion.
The second type of
justice, i.e,
corrective or rectificatory justice which appeals
that a person can perform certain actions where an agent gains benefit and the
victim suffers which solves the issue of unequal gains and suffers.
By punishing the wrongdoer and compensating the aggrieved person/ the victim,
restoration of equality is accomplished. In this type of justice theory, one’s
status is not counted as a consideration and looks only into the nature of
demerits that are caused to the person. Thus in this way just society
is created where all individuals in the
state are living with peace and harmony with equality.
Aristotle has
already made a clear view that happiness should not be the result of one’s own
instincts which makes a man more animalistic and erodes the functioning of the
state. He states that every man should have one telos, and that should
focus on attainment of happiness. His perception on law is considered as an
arena of ambiguity as whether his theory of law included justice or not[28].
He on a whole defines law as a rule where a man is induced to do an act or refrained from doing so. His
definition is quite subjective in nature which
doesn't suit the contemporary world, especially in democratic countries
like India. By considering his theory of justice,
the researcher wants to make make certain inferences connecting it with the
Kelsen’s pure law theory;
1.
Aristotle effectively provides the theory of justice
but doesn't take much effort in explaining the objective or actual essence of
law. This distances the theory of justice far away from the theory of law.
2.
When such a deliberation is made, the purpose of law in serving justice
in itself becomes an enigma. The same applies to
kelsen’s theory who focused only on the structure of law
but not on its practical applicability.
2.3 John Rawls
Theory of Justice:
John Rawls, an
American political philosopher, defines justice as “fairness” in which he depicts an egalitarian economic system
as a society which consists of free citizens with equal access to basic rights[29].
In 1971, a book written by John Rawls, "A Theory of Justice" and an
article with the title “Justice as
Fairness” provides a thorough explanation of his theory of distributive
justice by outlining two fundamental concepts of justice[30].
John Rawl's theory focuses on three principles and it is thought to be an
alternative to utilitarianism. First, among other things, he wants to organize
society such that each member has as much freedom as possible, while also
making sure that no person's freedom is being curtailed. Second, he accepts social and economic inequalities
in contrast to an equal distribution, so long as the arrangement promotes the advancement of the least fortunate
members of society. Thirdly, he believes that such inequality should be
beneficial for those who don't have access to resources and to occupy power[31].
2.3.1
Original Position and Veil of Ignorance:
In order to
provide an
explanation of his theory of justice, Rawls partially draws on the social contract theory. He uses an imaginatory “Original Position” theory to illustrate his ideas of justice in detail. John Rawls assigns
this original position to every member of the community. According to Rawls,
when members of the society are positioned as they were, they are hidden behind a curtain of ignorance. Everyone is so completely blindfolded by this "veil" that
they lose all knowledge of who they are and their social
standing, including their
location, class, and status
within society[32].
John Rawls
provided us with two crucial justice principles in order to further clarify his
theory of justice. First, he referred to the first principle as the biggest Equal liberty principle:
“Everyone is to have an equal right to the most extensive total system of equal
basic liberties compatible with a similar system of liberty for all”. Second,
the Equal Opportunity Principle where,
according to Rawls, “Social and economic disparities should be arranged so that they are
both attached to positions open to all under the conditions of fair equality of
opportunity and to the greatest benefit of the least advantaged, consistent with
the just savings principle”[33].
He claims that the
distribution of rights and freedoms is the primary concern of the maximum equal
liberty principle. By identifying specific rights and freedoms like the ability
to vote and hold public office, the freedom of speech and assembly,
the freedom of conscience and thought, and individual freedom
from psychological oppression and physical and arbitrary arrest, among others, he also defines
political liberty and liberty of conscience under this principle. In
elucidating the difference principle, Rawls has embraced a more equitable
methodology.[34]
His vision is a
society in which the most disadvantaged people benefit more from each other
than from those in the more advantaged group. In order to achieve this, he even
supports inequalities that favor the least advantaged because he thinks that
morally arbitrary factors like one's caste, creed, race, or family of birth
shouldn't determine one's chances in life to obtain something better than what
they were born with[35].
By examining his
theory of justice, the two principles namely; equal liberty
principle and equal
opportunity principle are contradictory with each other. Rawls unlike Aristotle
and Plato measures the validity of law in accordance with his principles of
justice. When we attempt to analyze kelsen’s theory through the lens of Rawls
theory of justice, there
are no instances where
kelsen takes into account the effectivity of law and its functioning as he
limited the theory only to its structure. From the above analysis of Rawls
theory of justice, John Rawls is like other natural law theorists who focuses
on the content of law, i.e, justice.
2.4 Amartya Sen’s Theory of Justice:
Amartya Sen, a
renowned economist and philosopher, provided a different approach towards
justice from other pre- discussed scholars. His critique on Rawls theory of
justice was again based on his criticism on transcendental institutionalism
represented by Immanuel Kant, Locke, Hobbes, Rousseau and Rawls. Sen placed
transcendental idealism within the realm of social contract theory. Sen
centrally criticizes Rawls second theory of justice
as “Impartial” with a flute
Illustration[36]
and on his equal liberty
and difference principle[37]. His argument was that the idea of liberty is too extreme, where
Sen regards the idea of liberty as one of the main aspects of justice and other facts such as hunger,
medical neglect and starvation should also be
considered where Rawls has neglected the sam[38].
Sen primarily focused
on achieving justice through eliminating the element of injustice present in it
rather than in the search of achieving a perfect just society[39].
Sen also takes into account distinct theories of justice to discuss it more
comprehensively. For the same, he utilizes two Sanskrit terms ‘Niti’ and
‘Nyaya’ where the former resembles just institutions and
the latter focuses on realization of justice. He proceeds to
praise Roman Emperor Ferdinand I’s statement
“Fiat justitia, et pereat mundus”,
meaning Justice should be done though the world perishes[40].
Therefore, he focuses on what are the just institutions and rules that serve
justice[41].
Another important
perspective on the theory of justice of Sen, in contemporary political
philosophy, is the differentiation between “transcendental institutionalism”
and “realization focused comparison”. Transcendental idealism encompasses what
is just or unjust for examining
the idea of justice.In comparative approach, i.e, realization focused
comparison he, doesn’t
want to remove injustice, rather intends
to reduce basic injustices to attain justice.
He also propounded another theory of “Closed and Open
Impartiality”. By the theory of closed impartiality he means that, in a social contract limited to certain citizens
whereas the open impartiality asserts that the social contract is applicable even to
those people who are not citizens[42].
CH 3: KELSEN’S THEORY
OF LAW ERODES JUSTICE?
The researcher
through this chapter, after a detailed analysis made in the previous
discussions, will address the significance of the relationship between law and
justice. Before evaluating the need
for understanding the interconnection between law and justice, one has to stick
to the idea of what an actual, concrete justice is. Out of all those theories
of justice propounded, Amartya Sen’s theory of justice is quite clear, free
from ambiguities and seeks to view justice as a tool for measuring the validity
of law. By
analyzing the detailed theoretical discussion done in the preceding chapters 1,
2, both Aristotle and Plato, who were the ancient Greek philosophers, did not consider
justice as an element for validating law. With the passage of time, contemporary theorists, like
Rawls, Amartya Sen have started giving importance to justice as a part
of law.
3.1 Kelsen’s Justification for placing Law and Justice
in two distinct spheres:
Kelsen differentiates empirical law and transcendental justice
from the subject of pure law theory.
He also justifies that pure law theory nowhere excludes what makes a law
provide justice, rather he asserts that it is barely impossible to answer the
question of what is just law as his theory is entirely based on
empirical aspects of law and considers transcendental justice unscientific and
beyond reality[43].
Kelsen’s theory emphasizes only on the structure and validity of law and doesn't
not delve into the substantive
aspects of law i.e, justice. He blindly justifies the same by stating that when
a grundnorm is valid, it can not be unjust. Kelsen justifies the fact
that he places law and justice in two distinct spheres. He claims that law is
determinate but justice is not as it
is subjective in nature[44].
He also states that answering to the question
whether or not a law is just, is outside the scope of legal validity
of law. As he alienates law
from morals
and natural law principles, the objective of law, i.e, providing
justice is consequentially disregarded.
3.2 Misconception
of the Notion that Justice is a “Subjective” Concept:
There prevails a
wide misconception on the nature of justice, though
many theories were propounded by many theorists on this
purview. As each theory of justice advocates
differing and clashing
perspectives
of justice, many lawyers and legal philosophers consider justice as
‘subjective’ in nature. Though, what seems to be just
for one person may not seem just for another may be a valid argument, it can’t
be considered that it is subjective in nature.
There are many further
arguments from lawyers who fear that justice
would replace law and it would create indeterminate subjectivity in the
courtroom[45].
Moreover, when one
considers the indeterminacy aspect of justice, the written law or words of the
statute at times provides the clause “If
Justice so requires”. Again, this clause depends on what the judges think
as just and can be easily ascertained when he/she is a Realist Judge[46].
Therefore, a judge can’t deliver a verdict that is unjust as it will promote
revolution among the people in fighting against the injustice. Thus, the
researcher dismisses the arguments of justice as a subjective
concept and it would substitute itself with law.
3.3 Justice as a Tool to Measure
the Validity of Law:
Justice riding with law, with a mission and a vision,
achieves its goal. Law without
justice is a form of tyranny. Justice without law is extensive with
chaos. This emphasizes the basic principles of justice under the law[47].
Even while justice and law appear to be related, their interactions in
different real-world contexts in
society have made them appear
to be two entirely
different ideas. There is a universal conception that justice is only a legal judgment or that there is no evidence to substantiate the
idea that justice as a component of law[48].
As a result, justice and the law are perceived
as just two sides of the same coin. It is difficult
to picture justice and law separated from each other since they
are so closely related. Law and justice
are also seen as
moral instructors, and they are supposed to provide peace and justice to the
state.
CONCLUSION:
With the above
detailed discussions, the researcher concludes
that Kelsen's theory of law undermines justice by placing law and
justice in two distinct spheres. The researcher has arrived
at this conclusion by primarily analyzing the intricacies of Kelsen’s Grundnorm
Theory and by examining the theory through the lenses of various theories of
justice propounded by many theorists. There are various inferences that could
be drawn from this analytical research. Firstly, Kelsen's pure law theory focuses only on the structure of law and doesn’t consider justice.
Also his theory is purely factitious and doesn’t give any explanation of
where he derives the basic norm from which in itself is inconsistent to the
principles of Positive Law school.
Secondly his
complete alienation or deliberate rejection of morals and natural law theories from law, makes the law so
stringent and will not serve its purpose where
its content is completely neglected. In the second chapter,
the researcher analyzes various justice theories, their criticisms and subsequently examines kelsen’s pure law theory with justice
theories. There, the
researcher concludes that though from the classical period of Socrates, Plato
and Aristotle, the justice theory
could be traced, only after Rawls the theory of justicd experienced a radical
change where the modern theorists did not place law and justice in different
spheres.
From the third
chapter, where the inevitable relationship between law and justice is
established, addresses that the idea of justice is not subjective in nature and such a perception is a
mere result of misconception of the notion. When one views justice from a
realist perspective, justice can’t be subjective in nature and thus the judges
can’t utilize the same which causes friction in the society. Therefore, justice
is a tool for measuring the validity of law and when kelsen excludes justice
from law, he actually invalidates the purpose of law. Thus, his theory is
archaic and outdated and will not fit in the contemporary period, especially for those democratic countries like India which aim
at achieving social justice.
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Patrick Kernahan, “The Meaning of Law: Plato’s Minos”.
In On Religion and Politics, IWM
Junior Visiting Fellows' Conferences, Vol. 13, (2004). pp. 5-6. https://files.iwm.at/uploads/jc-13-01.pdf
10.
Patrick Kernahan, “The Meaning of Law: Plato’s Minos”.
In On Religion and Politics, IWM
Junior Visiting Fellows' Conferences, Vol. 13, (2004). pp. 5-6. https://files.iwm.at/uploads/jc-13-01.pdf
11.
Heywood, Andrew, “Political Theory: An Introduction”,Ed. 4, Palgrave Macmillan Education, United Kingdom, (2015).
https://mgdc-chararisharief.com/elearn/Political%20Theory-1stSem.pdf
12.
Sooraj Kumar Maurya,
“Aristotle’s Theory of Justice: Revisited”, World Congress on
Innovations and Research
in Arts, Culture,
Literature, Languages, Philosophy and Spirituality,
(2019). pp. 14. https://krishisanskriti.org/vol_image/31May201903055012%20%20%20%20%20Sooraj
%20Kumar%20Maurya%20%20%20%20%2013-17.pdf
13.
W.D Ross, “Aristotle’s The Nicomachean Ethics,
Revised with an Introduction and Notes
by Lesley Brown”, Oxford University Press,
Oxford, 2009, p. 85.
14.
Tony Burns, “Aristotle and natural law”.
History of Political Thought. vol. 19. (1998),
pp. 142-166.
15.
Sampurnaa Dutta, “Rawls Theory of Justice:
An Analysis”, IOSR Journal
Of Humanities And Social
Science (IOSR-JHSS) Volume 22, Issue 4, (2017) pp. 40-43. https://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue4/Version-1/G2204014 043.pdf
16.
T.R.Sharma, “Rawlsian Justice:Disjunction between choice and observation”, Vol. 28,
IJPS (1989), p 33-34.
17.
R. M. Hare,
“Review of Rawls’ Theory of Justice--I, by John Rawls”.
The Philosophical Quarterly (1950-) 23, no. 91 (1973). pp.
154..
https://doi.org/10.2307/2217486.
18.
Amartya Sen, "What Do We Want from a Theory of Justice?", Journal of Philosophy vol. 103 (2006), pp. 215-238.
19.
Afif Mahfud et al. “Agrarian
Justice and Contextuality in Maxim Fiat Justitia Ruat Caelum and Fiat Justitia Ne Pereat
Mundus”.Research Gate. vol.23. 65-79.
10.24815/kanun.v23i1.20178
20.
Umut Dag, “Amartya
Sen’s Idea of Justice and its
relation with John Rawls and Adam Smith”, (2015), pp. 19-25.
21.
Amartya Sen, "Open and Closed Impartiality,” Journal of
Philosophy, Vol; 99, No.9, (2002). pp. 445-460.
22.
Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, Harvard Law
Review ,vol. 55, (1941), pp. 46.
23.
M.
Maurice Orona , “What Is Justice?by Hans Kelsen”,
Washington Law Review, vol. 32,
(1957), pp. 401.
https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3245&context=wlr
24.
D’ Amato, Anthony. “On the Connection between Law and
Justice.”, (2011), Davis L. Rev. 527, pp. 18.
_and_Justice
25.
Michael S. Green, “Legal Realism as Theory of Law”, William & Mary Law Review, vol. 46, (2005). pp. 1988.
https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr
26.
Godstime Otamiri, LEGAL EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND JUSTICE, (2023). pp. 10.
https://www.researchgate.net/publication/371856181_LEGAL_EXAMINATION_OF_T HE_RELATIONSHIP_BETWEEN_LAW_AND_JUSTICE
[1] Dhananjai Shivakumar, “The Pure Theory as Ideal Type: Defending
Kelsen on the Basis of Weberian
Methodology”, The Yale Law Journal ,
vol. 105, (1996), pp. 1383. https://doi.org/10.2307/797179
[2] Cotrell Roger, “Jurisprudence”, Lexis Nexis,
Ed.2, 2001, pp. 104.
[3] Ibid
[4] Hans Kelsen, “General Theory
of Law and State”, (1945).
[5] Michael Doherty, “Jurisprudence: The Philosophy of Law”, Ed.2, (2001), pp. 98.
[6] Ibid
[7] Berkeley, “What Is Justice?”, (1960).
[8] Joseph Raz, “The Purity
of Pure Law Theory” Revue Internationale de Philosophie , 1981, Vol. 35, pp. 442.
[9] Ibid.
[10] “The Concept of a Legal System”, Oxford, (1970),
pp. 97.
[11] Supra Note 8.
[12] Joseph Raz, “Kelsen’s Theory of
Basic Norm”, The American Journal of Jurisprudence, vol. 68, (2023).
[13] Ibid.
[14] Mridushi Swarup,”Kelsen’s Theory of Grundnorm”.
https://manupatra.com/roundup/330/articles/article%201.pdf
[15] Berkeley:, “The Pure Theory of Law”, 2nd ed. (1967).
[16] Uwaezuoke Precious Obioha,
“The Nature of Justice”, Journal of Political Science,
vol. 29(2), (2011).
pp. 185-190. https://www.researchgate.net/publication/267941412
[17] Bibi Hamedi, “The Concept
of Justice In Greek Philosophy (Plato and Aristotle)”. Mediterranean Journal
of Social Sciences. (2014). vol. 5, pp. 1163.
[18] Plato’s Republic, Jowett’s Translation, The Modern Library, New York, (2013) pp. 147-148.
[19] Ranjithkumar A . “Plato?s Notion of Justice
in Understanding Order
and Stability in Stratified Societies: A Study of India’s
Experience”. International Journal of
Political Science Development, vol 5(2), (2017). pp. 45-49.
[20] Plato, “The Republic”. Translated by Desmond Lee. England: Penguin
Books Ltd, (1974).
[21] Ibid.
[22] Supra Note 20.
[23] D.R. Bhandari, “Plato’s
Concept of Justice:
An Analysis”,Obioha, Precious. (2011). http://www.bu.edu/wcp/Papers/Anci/AnciBhan.htm#top,
downloads on 05.04.24 (Retrieved April 5, 2024).
[24] Patrick Kernahan, “The Meaning of Law: Plato’s
Minos”. In On Religion and Politics, IWM Junior
Visiting Fellows' Conferences, Vol. 13, (2004). pp. 5-6.
https://files.iwm.at/uploads/jc-13-01.pdf
[25] Heywood, Andrew, “Political Theory: An
Introduction”,Ed. 4, Palgrave
Macmillan Education, United
Kingdom, (2015).
https://mgdc-chararisharief.com/elearn/Political%20Theory-1stSem.pdf
[26] Sooraj Kumar Maurya, “Aristotle’s Theory of Justice:
Revisited”, World Congress on Innovations
and Research in Arts, Culture,
Literature, Languages, Philosophy and Spirituality, (2019). pp. 14. https://krishisanskriti.org/vol_image/31May201903055012%20%20%20%20%20Sooraj%20Kumar%20Maurya%20
%20%20%20%2013-17.pdf
[27] W.D Ross, “Aristotle’s The Nicomachean Ethics,
Revised with an Introduction and Notes by Lesley Brown”,
Oxford University Press, Oxford, (2009),
p. 85.
[28] Tony Burns, “Aristotle and natural law”. History of Political Thought. vol. 19. (1998), pp. 142-166.
[29] Sampurnaa Dutta, “Rawls
Theory of Justice:
An Analysis”, IOSR Journal
Of Humanities And Social Science
(IOSR-JHSS) Volume
22, Issue 4, (2017) pp. 40-43.
[30] Ibid.
[31] John Rawls, “A Theory of Justice”, Harvard University Press, (1971). pp. 3- 86.
[32] Ibid.
[33] T.R.Sharma, “Rawlsian Justice:Disjunction between choice and observation”, Vol. 28, IJPS (1989), p 33-34.
https://www.questjournals.org/jrhss/papers/vol9-issue3/2/L09036468.pdf
[34] Ibid.
[35] R. M. Hare,
“Review of Rawls’ Theory
of Justice--I, by John Rawls”.
The Philosophical Quarterly (1950-)
23, no. 91 (1973). pp.
154.. (https://doi.org/10.2307/2217486.)
[36] Amartya Sen, "What Do We Want from a Theory of Justice?", Journal of Philosophy vol.
103 (2006), pp. 215-238.
(http://www.jstor.org/stable/20619936.)
[37] Ibid.
[38] Amartya Sen, “The Idea of Justice”, Allen Lane, London (2009).
[39] Supra Note 29.
[40] Afif Mahfud et al. “Agrarian Justice
and Contextuality in Maxim Fiat Justitia Ruat Caelum and Fiat Justitia
Ne Pereat Mundus”.Research Gate.
vol.23. 65-79. 10.24815/kanun.v23i1.20178.
[41] Umut Dag, “Amartya
Sen’s Idea of Justice and its relation
with John Rawls and Adam Smith”, (2015),
pp. 19-25.
[42] Amartya Sen, "Open and Closed Impartiality,” Journal of Philosophy, Vol; 99, No.9, (2002). pp. 445-460.
[43] Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence”, Harvard Law Review ,vol. 55, (1941), pp. 46.
https://www.jstor.org/stable/1334739
[44] M. Maurice Orona ,
“What Is Justice?by Hans Kelsen”,
Washington Law Review, vol. 32, (1957),
pp. 401. https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3245&context=wlr
[45] D’ Amato, Anthony.
“On the Connection between Law and Justice.”, (2011),
Davis L. Rev. 527,
pp. 18. https://www.researchgate.net/publication/228187530_On_the_Connection_between_Law_and_Justice
[46] Michael S. Green, “Legal Realism as Theory of Law”, William & Mary Law Review, vol. 46, (2005).
pp. 1988. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1299&context=wmlr
[47] Godstime Otamiri, LEGAL EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND JUSTICE,
(2023). pp. 10.
https://www.researchgate.net/publication/371856181_LEGAL_EXAMINATION_OF_THE_RELATIONSHIP_BET WEEN_LAW_AND_JUSTICE
[48] Ibid.
Article Information
A CRITICAL ANALYSIS OF KELSEN’S PURE THEORY OF LAW WITH SPECIAL EMPHASIS ON ITS DISREGARD TO JUSTICE
Authors: A. GITAPRIYAVARRSHINI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/29
- Issue 7
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