Kelsen's Pure Law Theory

Kelsen’s Pure Law theory attempts to describe law as a hierarchy composed of basic norms called “Grundnorms”. These grundnorms rest upon higher norms in each level of the hierarchy. The lowest level represents a completely general description and the norms become more individual as you climb the hierarchy. For example, Kelsen maintains that a higher grundnorm can determine if another norm is created, such as a bye law gets its validity from another norm being a statute, which will also get its validity from another norm being a constitution, which thereby gives the legislator/congress power to create statutes. Unless there is a revolution, then these norms are subject to change.

H.L.A. Hart on the other hand, points out that Austin, for the

Kelsen’s theory or Pure Law generally dictates that the law is the law void of any morality. Which begs the question, is putting someone to death based on the displaying of a flag, moral? Although it is morally wrong to kill anyone, the law clearly states that anyone deemed a traitor would be put to death. Therefore, this law would be viable. Unless, there were some type of civil war to over throw the confederate government to change the norm of this law. Thereby making this law not

The circumstance set forth in this fact pattern are unique because they deal with a moral as well as a legal dilemma. The concepts of morality and legality and their characteristics can be analyzed best by a jurisprudential expert by the name of Jeph Raz. Raz maintained that law is source based, meaning that all law is based on social facts. Moreover, Raz believed that if the law claims authority than the source thesis must be true. For example, if there is a dispute between two children over what to watch on TV. Not one child has authority over the other. However, if the children were to agree to let their mother decide for them, than the mother, in this example, became the authority. The mother, would then deliberate using reason and weighing factor of the situation to decide which child is allow to watch TV. Raz points out, that in a scenario such as the one illustrated, the existence of a rule is determined by social