Topic > Essay on pure legal theory - 1968

Pure legal theory in MauritiusHans Kelsen was an Austrian-American legal philosopher born on 11 October 1881 in the Czech Republic and died on 20 April 1973 in the United States. He contributed to the drafting of the Austrian Constitution and developed the "pure theory of law" which he first introduced in Main Problems of the Doctrine of International Law (1911) and further expanded in General Theory of Law and the State (1945). Kelsen's work was influenced by Kantian philosophy which inspired his search for a "pure" theory. The pure theory of law is theoretically free from any external influence and its main element is the norm, of which the most important is the Grundnorm. The latter is influenced by historical facts and the aim of this research is to investigate Mauritian jurisprudence in relation to Kelsen's normative science. The first part of the essay will be an exposition of Kelsen's Pure Theory of Law, followed by a brief summary of the main historical facts of Mauritius. The next part concerns the identification of some important elements of the current legal system which relate to and could prove to be inconsistent with the pure theory of law. We will conclude by talking about how the positive theory of law can provide solutions to the limits of Kelsen's. As the name suggests, "pure theory" aims to exclude any other discipline by "excluding from... everything that does not strictly belong to the subject matter of law" (Freeman, 2008) to answer the eternal question "what is Is it the right?". Although Kelsen admits that law can be described as a social phenomenon, his goal is to create a normative science in which law is defined only in terms of norms. The pure theory of law is a system of rules addressed to officials who must apply... ... half of the article ...... we have seen, the Pure Theory of law is much more complex than a mere series of rules arranged in hierarchical order. The process by which each of them is validated and at a later stage invalidated by a revolution is a small part of the theory itself. Analyzing this aspect in the light of Mauritian history and the current legal system proved to be an interesting exercise as we were able to deduce that the process of creating a new legal system is not only complex but that a significant part of the old rules can still be stay after the revolution. Mauritius' unique hybrid legal system does not render the pure theory of law inconsistent, but the process by which the fundamental rule validates all lower ones may not apply correctly in this case. To conclude, it would appear that Hart's Rule of Recognition provides a better answer to this problem than the Pure Theory of Law..