This post has been authored by Mridul Sinha, who is associated to Dharmashastra National Law University, Jabalpur, Madhya Pradesh.
The legal philosophers ponder over the most debated distinction between Is and Ought. The two [Is and Ought] issues are at present very prominent in the legal realm that are (a) whether the legal rules belong to the “Is” category or to the “Ought” category, and (b) whether it is possible to distinguish between ‘the law as it is’ and ‘the law as it ought to be’.
Introduction
Before putting forward both the aspects of Ought Law, at first we need to be clear regarding what is “Is Law” and “Ought Law.” Is Law is primarily referred to the Black Letter Law which has been made and is applicable on people by a competent authority. On the other hand ‘Ought’ Law is not a formal law like the Is Law it is basically an ideal type of law based on morality. This Law is somehow considered to be better than the present laws and shall be used as an approach to reach the ideal position. It is outside the realm of law which is not achieved will become Is Law of the then time.
And certainly the distinction between Is and ‘Ought’ is made by the Positivists. Certainly Is Law Is Law because it is the law prevailing, be it just, unjust, bad or good and not because of its ‘Ought’ character which is deemed to be just better than the existing law which might prevail in future. The aspect of ‘Ought’ Law is primarily discussed in Kelsen’s Pure Theory of Law.
What does a Pure Theory of Law means and what is the impurity which has been eradicated from it to be called Pure Theory of Law? The impurity here is Austin’s theory of Law and here Kelsen’s theory is working as a filter of it to filter out the materials of Austin’s Theory of law. Austin’s theory says about law that Law is a command of sovereign backed by sanctions. According to Kelsen construing to Austin’s theory, he infers that the theory of law is that it deals with how the law is and not what it ‘Ought’ to be.
Here Kelsen points out the fact regarding Austin’s theory of law that where law is a command of a sovereign, backed by sanction. But here, Austin’s theory is saying that what law ‘Ought’ to be and not what law is. This is the point where Austin’s theory fails on justifying International law, procedural law etc.
Though, its core remains same and justified but it primarily fails in explaining other procedure related aspects of a legal system. For example, if there is a sovereign that commands and imposes sanctions, so how this theory describes the rights conferred to the minorities given in the constitution of India, how we can explain that? Kelsen wanted his theory to be applicable in all other laws and legal system. He proposed the concept and norms of a particular legal system. He propounded the concept that if we subtract the elements of ethics, history, politics psychology, sociology etc from the aspect of law, then we get a pure and an actual definition of law that what law actually is.
Norms are the patterns of behavior, something which are related to the command which may pave the path to aspects of ethics, practices, etc. Taking an example, walking on left is Law, and now has become a custom. So, even if the particular law is repealed, people might have the tendency to move on the left side. This position depicts that a norm was an Is Law and now it is still followed as it has determined the pattern of the human behavior. Norms might have some repercussions but those cannot be considered as sanctions as norms at that time are not a law.
For example if we do not eat with a fork, we might have eaten by hand. Here, the aspect of eating by hand is not considered as sanction but just a consequence. It is to be borne in mind that norms are not at all backed by sanction by any sovereign unless it holds the character of Is Law. Now a question arises that can the constitutionality of an Is Law be checked by another Is Law without touching the ‘Ought’ realm? The Is Law is taken into account as a yardstick and cannot per se check the constitutionality.
The ‘Ought’ foundation has to be seen of that Is Law to interpret that Is Law to check the ambit of interference. Without which the actual meaning cannot be cull out to check the actual purpose of the Is Law in question. The exercise in the realm of Is is considered only after relying upon the Oughts and every act been made in our country has to be checked by the constitutionality and therefore it is practically a reality that ‘Ought’ cannot be separated from the Is.
According to Kelsen, norms are basically the series of Oughts propounded by Kelsen. For example, if a murder is committed, the person ‘Ought’ to be punished as per the law. But here, Kelsen clarifies the fact that according to his theory, it doesn’t matter whether the person is punished or not, explicitly ruling out the elements of morality, effectiveness of law, ethics, politics etc.
Kelsen emphasized on finding the main source or an origin of these norms (how murderer ‘Ought’ to be punished). He pursued to look for the origin of these norms, which he named it as a ‘Grundnorm’, from which the fresh norms are created.
But in my opinion an argument can be put forth justifying the Grundnorm may be associated with the elements of the Preamble of the Constitution (India) as ‘JLEF’, i.e. Justice (Socio, Economic and Political), Liberty (thought, belief, faith, expression and worship). It may be justified by the assertion of the fact that all the aspects of procedure in CrPC, e.g. bail, arrest, etc primarily ensures the aspect of the fair trial ensuring the liberty of person and that is what we look out through the concept of Grundnorm. Basic structure can be argued as a Grundnorm as major portion of the constitutionality of rights and duties emanate from the basic structure. The Grundnorm is required to be there in any of the legal systems of any country or place.
Kelsen directs to look out the ‘Oughts’ of that legal system i.e. what ‘Ought’ to happen, ‘if X happens Y ‘Ought’ to happen’, then follow the hierarchy of norms and take out the Grundnorm. This is how the Pure Theory of Kelsen asserts that this particular theory is compatible to and manageable with any legal system.
Kelsen specifically rejected the idea of command by the sovereign in Austin’s definition of law. He expressly rejected the psychological element like an overbearing that a person is giving commands to its subjects and those subjects ‘Ought’ to obey the command and in contradiction to which will be dealt by the sanction. The element of ‘will’, that is primarily de-psychological command must be eliminated from the aspect of law. Coming to the aspect of sanction, as Austin says that the sovereign gives the command and disobedience of that command can invoke the role of sanction on the people who are the subdues of the sovereign. For example, if a person is kidnapped, theory of Austin says that the person must be punished according to law.
But Kelsen is of the notion the fact that an elaborative procedure must be followed according to the law and the prescribed norms (getting arrested, getting inquired, framing of charges, fair trial, application for bail etc). However, Austin’s theory is acceptable in its core form but when it comes to the elaboration of the procedures prescribed in various laws, it duly fails. But Kelsen took advantage of that loophole and ensured the tracing of Grundnorm by looking at its hierarchy of ‘Oughts’.
Most importantly, Kelsen professes that ‘finding of a fact by a Judge is not at all necessary’. But, for the purpose of implying those norms, the judge ‘considers it to have happened’. For example, considering the Ayodhya case (M Siddiq (D) Thr v. Mahant Suresh Das and Ors, Civil Appeal Nos. 10866 – 10867), the Judge happened to assume the title to the Hindu side possession. But that may not happen in the actual sense. But the Judiciary regards it to have happened to apply the norm i.e. the title granting aspect to the side having adverse possession. Now, construing to this scenario, if we trace the Grundnorm, we will find it to be the aspect from the Preamble’s ‘JLEF’ or we can refer to certain sections of CPC (Civil Procedure Code, 1908) of entitlement and again it leads us back to the ‘JLEF’ aspect of the Preamble of COI.
Criticism
Kelsen’s theory is a well-known legal theory. However, it has a number of serious flaws. Its sole focus on the elements of law, without considering other factors such as politics, morality, and the efficacy of law, leaves a significant gap in the theory, since law does not exist in a vacuum. Kelsen’s critics claim that Pure Philosophy is a logic-based community, and that there is no room for fact in his theory, making it insufficient to comprehend the full ramifications of legal systems and rules.
Kelsen’s main emphasis on the role of authorities in the legal system is also blatantly on the aspect of law enforcement. In essence, it disregards the position of ordinary people in the state and their interests in the establishment of law in a legal system. According to Kelsen, ordinary people have nothing to do with the law other than behave in ways that concretize the authorities’ application of sanctions. This is an overly one-sided view of the law, which focuses solely on the external, coercive aspect of the law while ignoring the fact that laws may often bind people to act or to refrain from acting in some ways.
Furthermore, Kelsen has been hesitant towards an integral point in Hart’s philosophy that people follow the law out of a sense of obligation, by denying the subjective nature of actions. Kelsen has been completely unaware of this aspect of citizens’ interactions with the law. According to Kelsen’s Pure Theory, legal norms can only exist in a system that is overall effective, and that such a system is made up of a hierarchy of legitimate legal norms.
Efficacy may also refer to the routine and successful implementation of sanctions by authorities, but it has little to do with the legitimacy of the law-making authority. This may mean that someone capable of usurping control in a society would then impose his new power by effectively imposing sanctions, resulting in a ‘legitimate’ reform of the very basic standard.
This is a troubling aspect of the theory since it seems to legitimize ex-post facto revolutions and power arrogation by making claims of legitimacy based on changes in basic norms. To summarize, identifying the basic standard in every culture is a difficult task due to its presupposed and transcendental existence, which makes it ambiguous. Since the top-most justifiable standard is virtually impossible to define or justify, the validation scheme becomes unverified and ineffective.
This failure demonstrated that the principle that binds Kelsen’s theory together is its weakest component, undermining the entire theory in the process. According to Kelsen, law is a particular technique of social behavior. Kelsen emphasized on the fact that the identity of a State is a legal order and every one of them is primarily governed by law. According to him, the State is nothing but a bundle of certain norms which order compulsion making it coextensive with law. His Pure Theory and the concept of Ought in it with consonance to norms greatly supported the aspects of rights, personality, State and public and private law and because of his suggestions and views on these topics, he suggested the revaluation of the same.
Leave a Reply