The place of force (‘coercion) in the pure theory has evoked adverse comment. There is no explicit assertion in the theory that law is only force, but there is an inference that the effectiveness of law seems to be based solely on force or sanction. All law must possess ‘ an apparatus of compulsion’, Kelsen argues, and the essence of law is in duty, not in right. One’s legal duty is as the law commands, with coercion available for the enforcement of norms.
But critics have suggested that this is a confusion of ‘coercion’ and ‘obligation’.
It is because a rule is considered by the community as obligatory that it is possible to attach to it some measure of coercion; the rule is not obligatory merely because there is coercion. The rules relating to individual physical inviolability are considered by most communities to be of an obligatory nature and therefore penalties are attached to their breach; the rules embodied in the OAPA 1861, are not considered as obligatory merely because of the sanctions contained therein.
Further, Kelsen is said to have ignored the discussions on communal attitudes to obligation, punishments, etc, which form the content of important work in the social sciences. Kelsen’s norms seem to be little more than formal, authoritarian commands enforced by whose who happen to have a monopoly of force within the community. This has been criticised as a caricature of real life: laws are not obeyed merely because of threatened sanctions; some statutes impose duties without the threat of any sanction.
Duties and sanctions require separate definitions because, in reality, they are not conterminous. The concept of the Grundnorm (the ‘basic norm’), which is central to the ‘pure theory’, is not without its critics. The basic norm (‘presupposed in juristic thinking’) is that which is said to give a unity to the legal system in that it tops the pyramid of norms and gives those norms their validity.
This has been condemned as mere fiction, or as being little more than Austin’s ‘sovereign’ in disguise, or as a mythical ‘first cause’ beyond which one ought not to venture in any investigation of law. A statement such as ‘the first constitution must be obeyed’ is criticised as self-contradictory. The reasons why the law is obeyed, argue the critics, are to be found in more than one so-called ‘fundamental reason’ and certainly not in any fictitious basic norm, the very existence of which rarely figures in the conscious responses of citizens to their legal obligations.
Further, if one considers the activities of the community’s judges, the Grundnorm will not explain the many ‘non-rule standards’ which jurists such as Dworkin perceive as entering into decisions of the courts. Judges probably take into account, during the process of adjudication, much more than formal rules: they keep in mind wide principles and communal policies-the very matters which Kelsen seeks to exclude from a formulation of the essence of law.
The very search for a Grundnorm within a legal system will be affected by the personal value-judgements of the investigator—so runs a common criticism of the methodology of Kelsen’s supporters. Further, it is very difficult to investigate the validity of Kelsen’s test of a ‘minimum of support’ for a basic norm without enquiring into surrounding political and social facts-an unacceptable state of affairs for advocates of the ‘pure theory’.
If, for example, it is assumed by these advocates that the basic norm of a community is ‘belief in the divinity of the law-giver’, or in his charismatic law-making, it would be almost impossible to discover the level of support for that belief without enquiring into ways in which the law-maker’s subjects are affected in practice, and that would necessitate investigation of a variety of social matters of a ‘non-legal’ nature. The problems raised by the existence of international law have been viewed by critics as constituting a basic obligation to the ‘pure theory’.
In Kelsen’s view, international law can be interpreted correctly as ‘judicial order’ which may be understood within the boundaries of a ‘normative science of law’. But it appears that international law lacks a number of characteristics of a ‘legal order’ in Kelsen’s sense. It has no developed apparatus of compulsion and apparently no Grundnorm. Kelsen’s reply to this objection suggests an acceptance of war and reprisals as constituting the ‘international sanction’. This, for many jurists, involves a negation of the spirit and essential purpose of the doctrine of international law.
Further, it may be that a multiplicity of basic norms is required for the interpretation of the complex structure of the law of nations, but this would certainly offend the austere sense of parsimony which is characteristic of the ‘pure theory’. There are, then, many points in Kelsen’s theory at which evidence emerges suggesting a lack of correspondence pf its express and implied doctrines and legal life, as we know it to be. The theory, it has been said, has no application to the everyday problems of the law; it solves none of the recurring difficulties which face legislators and judges.
If the ‘proper business’ of a positivist jurist be with the actual operations of the law, then Kelsen might be considered as having contributed little to an understanding of those operations. Allen suggests that, in Kelsen’s anxiety to keep perception of the law ‘pure’, he has raised it to such an inaccessible altitude that ‘it has difficulty in drawing the breath of life’. Geny, writing before Kelsen, had warned against the ‘palpable illusion’ of attempting to erect a pure judicial science on the postulates of ‘an inevitable and imperious logic’, with the result that what is created is barren and without value.
It is, perhaps, this criticism which Laski had in mind in his comment on Kelsen. It is paradoxical that Kelsen, criticised for remoteness and a prediction for authoritarian jurisprudence, both of which are said to be evident in the ‘pure theory’, should have been, in fact, a jurist who was intensely concerned with the practicalities of the law.
He had rejected authoritarianism by choosing exile from his native Austria which was under totalitarian rule, and he made a fundamental contribution to the legal foundations of the United Nations in hid commentaries on the basis of UN proposals for international security. His concern was to give to legal science a methodology which would enable the law-no matter what its form or origins might be -to be understood.
The resulting edifice seems to have been constructed, however, from postulates and perceptions which ignored the peculiar richness and complexities of developed legal systems; its basis is now seen by some jurists as being unacceptably narrow. It may be that any attempt to create a ratified ‘pure theory’ which involves separating law from custom, tradition, communal conceptions of justice and morality, will succeed only in erecting a system of jurisdictional thought which, no matter how logical its methodology may be, is, in the event at variance with the life of the law.
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