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The Pure Theory of Law

Kelsen's theory of law, his 'Pure Theory of Law' (Reine Rechtslehre), aims to describe law as a hierarchy of binding norms, while refusing, itself, to evaluate those norms. That is, ' legal science ' is to be separated from ' legal politics '. Central to the Pure Theory is the notion of a ' basic norm ' (Grundnorm) — a hypothetical norm, presupposed by the theory, from which in a hierarchy of empowerments all ' lower ' norms in a legal system, from constitutional law downward, are understood to derive their validity, hence their authority or ' bindingness '. This is not logical validity (i.e. of deduction), but ' legal validity '; a norm is legally ' valid ' if and only if the organ creating it has been so empowered by a higher norm. Public international law is understood as similarly hierarchical. In this way, Kelsen contends, the validity of legal norms (their specifically ' legal ' character) can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or a personified State or Nation. The Pure Theory is intended as rigorous legal positivism, excluding any idea of natural law.