Hans Kelsen's Pure Theory of Law: The Basic Norm and Legal Positivism

Today we're talking about Hans Kelsen's Pure Theory of Law. In particular we'll take a look at his concept of the Grundnorm or Basic Norm which was an assumption of validity underlying the highest legal norm in any given legal system.

We'll see whether Kelsen is successful in his attempt to describe jurisprudence in distinct, non-reductive terms, and whether his thoroughgoing relativism with respect to the normativity of law poses problems for his theory.

Kelsen is a legal positivist who occupies a theoretic position between John Austin's command theory and more contemporary positivists who are influenced by HLA Hart. Though Kelsen is not as well known as Austin or Hart in common law jurisdictions, his theories are interesting and lay the groundwork for Hart and more contemporary legal positivists.

Moreover, his arguments clarify several problem areas for legal positivism which are later used by Ronal Dworkin to argue against the social fact thesis.

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