He believed that the contemporary study and theories of law impure as they drew upon various other fields like religion and minority to explain legal concepts. It is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm.
For example, in India a statute or law is valid because it derives its legal authority from the Parliament which in turn derive its authority from the Constitution. As to the question from where the constitution derive its validity, is unknown.
He discarded the presumption of justice as an essential element of law because many law may still continue as law despite being unjust such as SARFAESI Act.
However, this theory too has got some cons which are as follows:-
1. There is no rule or yardstick to measure its effectiveness.
2. Its validity is a matter to be determined in the context of a given point of time.
3. One has to draw subjects other than law like Sociology, History, Morality etc.
4. Most of the countries gives primacy to the Municipal laws over international laws.
Kelson considered sanction as an essential element of law but he preferred to call it a norm which is the rule forbiding or prescribing certain behaviour. He distinguished moral norm with the legal norm and said that though moral norms are ought prepositions, a violation of it does not have any penal fallout.
No comments:
Post a Comment