UPSA LAW SCHOOL

FIRST SEMESTER, 2023-2024 ACADEMIC YEAR

BLAW 403: JURISPRUDENCE I
READING ASSIGNMENT

READING ASSIGNMENT 1: Read and summarize Freeman MDA 269-310

START DATE: October 17
END DATE: October 23

FULL NAME: PHILOMENA APPAW

INDEX NO:10282621

CLASS: Evening
TUTORIAL GROUP: Justice Tally Team

LECTURER: Dr. Rowland Atta-Kesson

SUBMISSION DATE: October 3, 2023

HONOR STATEMENT:
By signing below, I confirm that I have personally read and summarized this reading in not more than
3 pages as instructed, and that I did not use any artificial intelligence software.

SIGN:………………………………………
 H. KELSEN - The Pure Theory of Law

The Pure Theory of Law is a legal theory focused on the precise definition of law as a positive
concept. It is not concerned with questions of morality or what the law ought to be, but strictly with
understanding what the law is. This theory treats law as a science rather than a political or moral
philosophy. The "pure" in its name signifies that it aims to free the study of law from extraneous
influences. In the past, jurisprudence was often mixed with fields like psychology, biology, ethics, and
theology. The Pure Theory of Law seeks to separate law from these influences to maintain its purity
as a field of study. This theory distinguishes between the external, observable elements of law (such
as human behavior and actions) and the subjective meaning attached to these actions. This meaning
is the essence of law, and it is derived from legal norms. Legal norms provide a schema of meaning,
and their content defines the significance of actions and events. Law is thus not a mere natural,
causal process but is instead normative and based on meaning. By defining law as a norm and
restricting the scope of legal science to the knowledge of norms, the Pure Theory of Law separates
law from nature and distinguishes it from sciences that explore natural, causal processes. It allows
for the study of law as a normative science, and it proposes that inquiries into the causes and effects
of legal processes should be conducted under the banner of legal sociology or other relevant fields,
not within the scope of the study of legal norms. This theory emphasizes the importance of
separating law from morality while acknowledging that law should, by its nature, be moral and just.
It challenges the idea that every law is inherently moral and argues that the study of law should
focus on its specific meaning and content, leaving moral questions to ethics and philosophy.

The Pure Theory of Law seeks to separate legal norms from moral norms, establishing law as an
independent system. It defines legal norms as hypothetical statements, indicating a specific
connection between a circumstance and its legal consequence. Unlike causality in natural law, the
legal norm uses the principle of imputation, expressed as the "Ought." This concept is purely formal,
distinct from morality, and is crucial for understanding how positive law connects circumstances
without relying on cause-and-effect relationships. It can be applied to any social reality, regardless of
its content, making it unique to law. The legal order consists of a system of legal norms, and its unity
is maintained by a basic norm, which is the source of validity for all the norms within that system.
There are two kinds of normative systems based on the nature of the basic norm: one where norms
derive their validity from their content (like moral norms), and the other where norms get their
validity from a specific process of creation. In legal systems, norms don't have inherent validity based
on their content but are considered legal norms through a defined process. The basic norm in law is
the fundamental rule governing the creation of legal norms. Legal norms are not deduced logically
from the basic norm; they are constituted through acts of will. The legal system's hierarchy includes
the constitution, general norms, and individual norms, created through judicial decisions and
administration. This hierarchy governs the growth and creation of legal orders. The judicial decision is
not merely declaratory but also constitutive, making law by linking concrete conditions to legal
consequences. Administration, in certain cases, functions similarly to judicial decisions by enforcing
social behaviour as legally obligatory. The distinction between judiciary and administration is
sometimes technical, as both operate indirectly to realize public policy. In certain areas of law, such
as civil law, legal transactions play a role between the statute and judicial decisions. Parties create
specific norms for their interactions, which serve as the basis for judicial decisions. The final step in
this law-making process involves enforcing the compulsory act or penal consequence.

Law is essentially a coercive order. It involves applying coercive measures like depriving individuals of
their possessions (e.g., life, health, freedom, property) as a form of punishment when they violate
the established social order. While physical force may be used in cases of resistance, it's not always
necessary. This concept of law is a common thread across various societies and time periods, despite
vast cultural and historical differences. The unifying element is the use of coercion as a means to
ensure desired social behavior by threatening individuals with these coercive measures if they don't
comply. This technique of enforcing order through the threat of punishment is what the term "law"
refers to. The reasons for the necessity of this technique and whether societies can exist without it
are sociological questions. If a future society were to exist without this coercive nature, it would
represent a more significant departure from current societies than the differences seen between
diverse historical legal orders.

Legal norms are rules within a legal system that dictate specific outcomes or sanctions based on
certain conditions, even if these rules may not always be explicitly formulated as imperative
statements. The "rule of law" is a descriptive term used to describe the logical structure of these
norms, which connect certain conditions to particular consequences. It's similar in structure to the
"law of nature," which describes cause-and-effect relationships but focuses on human behavior.
Legal norms are normative in nature, meaning they express how things should be. Unlike the "law of
nature," legal norms do not have exceptions; they define how things should work. If a real-world
situation doesn't match a legal norm, it doesn't mean the norm is violated; it simply means the
behavior doesn't align with the norm. The concept of causality in human behavior and nature was
originally shaped by the normative idea of retribution, where good deeds are rewarded and bad
deeds are punished. Over time, the concept of causality became more descriptive and less inviolable.
The creation of legal norms within a legal order follows a hierarchy. Specific norms must conform to
higher-level norms, which, in turn, must adhere to the first constitution of a society. The first
constitution's validity is based on the basic norm, which is the foundational assumption that people
should behave according to the constitution and the authorities established by it. This basic norm is
crucial for the validity of all other norms within the legal order. It essentially prescribes that coercive
actions should occur under specific conditions and according to the constitution's guidelines.

The concept of a basic norm is central to the understanding of legal orders, both at the national and
international levels. In a national legal order, the basic norm is a hypothetical norm that presupposes
the validity of the first constitution, the fundamental legal document that gives rise to all other legal
norms within that system. It serves to legitimize the actions of the first legislator and, by extension,
all subsequent legal acts and norms. The basic norm allows legal scholars to interpret these norms as
part of a unified legal system. When there's a revolutionary change in government, the basic norm
changes too. If the revolution is successful, a new basic norm is presupposed, legitimizing the new
constitution and its associated legal norms. If the revolution fails, the old basic norm remains,
treating the revolutionary actions as illegal. The principle of effectiveness is another critical element
in legal orders. It dictates that the entire legal order must be functioning effectively for individual
norms to be considered valid. While the basic norm establishes the overall legitimacy of a legal order,
the principle of effectiveness ensures that the legal system works as a coherent whole. In
international law, the basic norm presupposes the validity of international treaties and the principle
"pacta sunt servanda," which requires states to honor their treaty obligations. This norm arises from
customary international law, which is based on the practices of states. The basic norm of
international law enables the creation of international norms through treaties, forming the second
stage of the international legal order. The third stage includes norms established by international
bodies like the League of Nations or the Permanent Court of International Justice. In essence, the
basic norm is a foundational concept that helps us understand the legitimacy and coherence of legal
orders, whether they are at the national or international level. It ensures that these legal systems
operate effectively and that their norms are understood and applied within a structured framework.

Professor Stone and the Pure Theory of Law

Hans Kelsen clarifies the distinction between two types of constitutions within his legal theory. He
differentiates between the "constitution in a legal-logical sense" and the "constitution in the sense of
positive law." The "constitution in a legal-logical sense" is represented by the basic norm, and it is not
a norm of positive law. Instead, it's a norm presupposed in juristic thinking. Its primary role is to
establish the objective validity of the subjective meanings of acts that create a legal community's
constitution. Kelsen emphasizes that the basic norm doesn't guarantee the efficacy of a legal order
but instead presupposes the existence of a coercive social order that is, by and large, effective. The
basic norm doesn't create effectiveness but is predicated on the effectiveness of the legal system. In
essence, the basic norm acts as a conditional foundation for the objective validity of legal norms. It is
not necessary to presuppose the basic norm, but doing so allows us to consider a coercive order,
which is largely effective, as a system of objectively valid norms. The presence or absence of the
basic norm distinguishes a legal command, which is considered objectively valid, from a similar
command without the basic norm, which is not considered valid. The theory of the basic norm is
central to Kelsen's Pure Theory of Law and aids in the distinction between coercive orders that are
objectively valid legal norms and those that are not valid. It's crucial for understanding how legal
systems operate within a society.

Positive and negative regulations: commanding, authorizing, permitting

Hans Kelsen explains the concept of "norms" within the context of legal orders and human behavior.
In the realm of legal science, the focus is on those norms that have the characteristics of legal norms,
dictating whether actions are legal or illegal. These norms make up the structure of a legal order,
which regulates human behavior by defining what should or should not occur, especially in terms of
how humans should behave. Kelsen emphasizes the significance of the term "norm," which
essentially signifies that something ought to be or should happen, primarily in the context of human
actions. Norms come into play when human acts instruct or allow specific behaviors, and sometimes
they even grant authority. The concept of "authorize" is crucial, as it bestows upon someone the
power to create norms. Acts with normative meaning are essentially acts of will. If an individual's act
expresses a will aimed at dictating someone else's behavior (commanding, permitting, authorizing),
then the meaning of their act is normative in nature, reflecting an "ought" rather than an "is." Kelsen
distinguishes between positive and negative regulations within human behavior. Positive regulations
are commands that prescribe specific actions or authorize particular consequences, while negative
regulations involve the omission or non-performance of certain actions and are often formulated as
forbiddances. The concept of permitting can be both positive and negative. In a positive sense,
permitting authorizes or entitles individuals to behave or receive certain services, while in a negative
sense, permitting only grants the absence of forbiddance. Ultimately, Kelsen's explanation highlights
the centrality of norms in legal orders, how they are derived from acts of will, and how they govern
and structure human behavior by dictating what ought to be done.
 The reason for the validity of a legal order

Hans Kelsen's legal theory highlights the essential role of the basic norm within a legal order. Legal
norms' validity is determined by the way they are created, rather than their specific content. The
basic norm, which underpins the legal order, serves as the foundation for norm creation. It
essentially acts as a reference point for the entire legal system. Kelsen's theory emphasizes that there
are no restrictions on the content of legal norms; they can encompass a wide range of human
behaviors. The basic norm is not a material norm with inherent content but rather a presupposed
norm that sets the process of creating legal norms into motion. When questions arise about the
validity of a specific legal norm, the answer can be found by tracing it back to the basic norm of the
legal order. This hierarchical structure of norms, from general norms to individual norms, is rooted in
the foundational basic norm. In essence, Kelsen's legal theory centers on the pivotal role of the basic
norm in establishing and maintaining the validity of all legal norms within a legal order. The basic
norm provides the legal framework, and from it, all other norms derive their legitimacy.

Hans Kelsen's legal theory highlights the essential role of the basic norm within a legal order. Legal
norms' validity is determined by the way they are created, rather than their specific content. The
basic norm, which underpins the legal order, serves as the foundation for norm creation. It
essentially acts as a reference point for the entire legal system. Kelsen's theory emphasizes that there
are no restrictions on the content of legal norms; they can encompass a wide range of human
behaviors. The basic norm is not a material norm with inherent content but rather a presupposed
norm that sets the process of creating legal norms into motion. When questions arise about the
validity of a specific legal norm, the answer can be found by tracing it back to the basic norm of the
legal order. This hierarchical structure of norms, from general norms to individual norms, is rooted in
the foundational basic norm. In essence, Kelsen's legal theory centers on the pivotal role of the basic
norm in establishing and maintaining the validity of all legal norms within a legal order. The basic
norm provides the legal framework, and from it, all other norms derive their legitimacy.

The basic norm as transcendental-logical presupposition

The basic norm in Hans Kelsen's theory is directly linked to a specific constitution that exists and is
effective within a legal system. It's not arbitrarily chosen but is presupposed, meaning it obligates
adherence to that constitution. This presupposition allows the subjective meanings of legal acts to be
recognized as valid legal norms, forming legal relationships.
 The basic norm of international law

The validity of international law within a state depends on government recognition under an
effective constitution. If international law is considered part of the national legal order, the reason for
its validity is still a presupposed basic norm linked to the constitution. However, if international law is
seen as a superior legal order above national ones, national legal orders derive their validity from a
positive norm in international law. Successful revolutions are considered legitimate under
international law, altering the problem of the basic norm. In this context, international law becomes
the highest legal order, and the reason for its validity lies in the basic norm of international law. The
basic norm presupposes general international law as objectively valid norms governing state
behavior. These norms are formed through state custom and interpreted as binding legal norms due
to the basic norm, which establishes custom among states as a law-creating fact. The guiding
principle of international law is that states should behave as they typically do in mutual relations,
with no inherent affirmation of values beyond positive law. The validity of international law and
national legal orders hinges on their adherence to this principle and may lead to the realization of
values such as peace. If national legal orders derive their validity from international law, it
acknowledges international law as the highest sovereign legal order, with states being sovereign in
subordination to it.

The hierarchical structure of the legal order

The Constitution

Laws can regulate their own creation, either by defining the procedure or influencing the content of
new laws. This creates a hierarchy of legal norms, with a fundamental basic norm at the top. In a
national legal order, the constitution represents the highest level of law. It can be written or
unwritten and sets the rules for creating general legal norms. The creation of general legal norms has
a legislative nature. The constitution specifies which entities can create these norms. If courts apply
customary law, it must be authorized by the constitution, presupposing the constitution's binding
character. The state's written constitution may have special provisions for amending or abolishing
constitutional norms, making it harder to change them. In cases with no written constitution,
customary norms can alter these laws. The entity authorized to handle constitutional and ordinary
statutes can be the same or different.

Public and Private Law

Private law pertains to relationships among equals, while public law deals with superiors and
subordinates, mainly the state and its subjects. The key difference is in norm creation: public law
allows state organs to impose obligations unilaterally (e.g., administrative orders), while private law
relies on mutual norm creation (e.g., contracts). This reflects autocratic norm creation in public law
and democratic law-making in private law, emphasizing the realm of private autonomy in legal
transactions. The distinction between public and private law is primarily a matter of how legal norms
are created. In both cases, legal acts are seen as extensions of the state's will, making them part of
the same legal order. The Pure Theory of Law takes a universal perspective and considers both
private legal transactions and administrative orders as acts of the state, blurring the line between
public and private law. This approach challenges the ideological absolutism surrounding this
distinction and makes it an internal difference within the legal system.

The identity of State and law

The state is essentially a legal order that regulates human behavior and coercion. It's centralized,
with specific institutions responsible for creating and enforcing legal norms, distinguishing it from
primitive or international legal systems. The state's population consists of individuals subject to the
same legal order, determined solely by law, not feelings or affinity. State territory is a legally defined
space. State power is the authority exercised by the government over its population. It's unique
because it's governed by legal norms and is independent from other national legal orders, being
primarily bound by international law. The manifestations of state power involve tools such as the
legal system, law enforcement, and the military, which become instruments of state power when
used in line with legal norms. In essence, the state's power is the effectiveness of the national legal
order, defining the state as a relatively centralized, sovereign entity within a specific spatial and
temporal scope.

The Function of a Constitution

Law consists of norms that serve as the meanings behind acts of will directed towards the behavior
of others. These norms are predominantly commands but can also include authorizations for issuing
commands. Norms are only considered legal when they are directed at human behavior. The validity
of a norm is contingent upon its authorization by a higher norm. For instance, a parent's command to
their child can be grounded in God's authorization to parents. This leads to the concept of a basic
norm in religious morality, which is presupposed by believers to justify the validity of other norms
within that morality. This basic norm isn't a positive norm but rather an assumption made by
believers.

Law and Morality

Law and morality both aim to shape human behavior, but they differ in enforcement methods. Law
uses coercion and sanctions like imprisonment, while morality relies on social approval and
disapproval. Legal norms follow a hierarchy, with specific judgments derived from general legal
norms. These general norms are authorized by the constitution, which sets the rules for creating and
amending them. The constitution, in the material sense, establishes the structure for generating
general legal norms, while constitution-form defines the procedures for amending or passing a
constitution. The basis of the validity of a constitution is rooted in a historically first constitution or
basic norm. This basic norm authorizes the individuals responsible for creating the constitution or
the custom leading to it. It acts as the cornerstone of the entire legal system.

Norm and Justice

The basic norm is a fundamental concept in legal theory, presupposing the existence of an
established constitution that authorizes the creation of legal norms. It serves as a condition for
interpreting acts of will as objective legal norms, allowing legal scholars to describe laws as valid
orders without relying on higher authorities like God or Nature. Presupposing the basic norm is
essential for interpreting acts of will as valid moral or legal norms. To address potential conflicts
between "ought" and "willing," an imaginary authority is introduced, but this concept contains
contradictions within itself. In essence, the basic norm is a tool in legal thinking, serving as a fiction in
the philosophy of "as if." It aids in the interpretation of legal concepts and the grounding of norm
validity in legal orders while recognizing its lack of correspondence with reality.

Hierarchy between Norms

In legal theory, the relationship between higher and lower norms is characterized by the higher
norm's validity serving as the basis for the validity of the lower norm. Higher norms that regulate the
creation of lower norms are essentially constitutions. For example, statutes function as constitutions
for the procedure of law-applying organs, and the historically first constitution serves as a
constitution in a transcendental-logical sense. The concept of a "constitution" is relative, depending
on who is authorized to create norms and whether it specifies the content of those norms. In the
moral realm, higher moral authorities usually don't allow lower authorities to create norms that
conflict with fundamental moral principles. In the legal realm, constitutions may impact the content
of future statutes, but a positive legal order can either be a generative framework or specify the
content of norms. A positive legal order functions as a hierarchy of norms, with the constitution at
the top, grounded in validity by the presupposed basic norm, and individual norms at the bottom,
dictating specific obligatory conduct. The primary role of a constitution is to establish and ground the
validity of the legal order, providing a structured framework for norm creation.

The Purity of the Pure Theory of Law

In this text, the author discusses Hans Kelsen's legal theory, emphasizing two main aspects: its
freedom from sociological and psychological investigations and its separation of law from morality.
The first aspect has drawn criticism, with objections related to the belief that the content of law
cannot be established without considering the actions and intentions of legal institutions and the
need to study law within its social context to understand its practical effects. The second aspect
relates to Kelsen's rejection of moral elements in law. Kelsen defends the view that legal statements
are essentially normative and are not reducible to descriptions of social practices. He argues that the
existence and content of law can be ascertained without moral arguments and that, even though
legal statements are normative, they do not necessarily entail moral commitments. Kelsen's solution
to maintaining the purity of legal theory involves distinguishing between descriptive and hypothetical
legal statements, with the latter assuming the validity of a basic norm as a fiction. This enables legal
scholars to describe the law as a normative system while remaining value-neutral and not committed
to any specific moral standpoint. Despite this approach, the author suggests that Kelsen's relativistic
view of morality and the use of normative language in legal discourse raise some issues, particularly
regarding moral commitment in legal science. The text discusses Hans Kelsen's view on the nature of
legal statements and introduces the concept of the basic norm in legal theory. It suggests that Kelsen
distinguishes between three types of legal statements:

a. Statements conditional on the validity of the basic norm, which are normatively
uncommitted as their normative force depends on the unasserted condition: if the basic
norm is valid, then...
b. Detached statements, also morally uncommitted, which state what rights and duties exist on
the assumption that the basic norm is valid but without commitment to that assumption.
c. Committed statements, which are ordinary moral statements about what ought to be done,
what rights and duties people have because of the law.
The text points out that Kelsen's distinctions are not always clear, and he sometimes confuses these
types of statements. The author of the text attempts to clarify and separate Kelsen's ideas into these
three categories. The text also compares Kelsen's views with those of H.L.A. Hart, suggesting that
committed statements in Kelsen's theory are somewhat similar to Hart's internal statements but with
some important differences. For instance, Kelsen's view is cognitivist, meaning that statements are
normative because they express a belief in the validity of a norm, whereas Hart's is non-cognitivist,
interpreting normativity as an attitude of willingness to be guided in a certain way. Another
difference is that Kelsen tends to identify all normative attitudes and beliefs as moral, while Hart
distinguishes between moral reasons and other types of reasons for accepting rules. The text also
addresses the problem of how illuminating these distinctions are in the context of legal theory. It
argues that many legal statements concerning the rights and duties of individuals are, in practice,
moral claims. Furthermore, the text discusses Kelsen's theory of the basic norm, which is seen as a
result of the purity of legal theory. The basic norm is considered a non-derivative, non-positive norm
that authorizes the creation of all other positive laws in a legal system. This basic norm is pivotal in
ensuring the purity of legal theory, as it allows the theory to study law solely based on social facts
without relying on specific moral beliefs. Kelsen's doctrine of the basic norm is presented as a way to
non-committally or fictitiously accept the basic norm of the legal man, enabling the study of law
purely from a social and factual perspective.