Cover Sheet
Course: LLB Law
Module: Jurisprudence
Assignment Title: An Analysis of Kelsenian and Hartian Jurisprudence as Applied to Roman and Hindu Legal Cultures
Student ID: [Student ID]
Date: [Date]
Word Count: 1048
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Table of Contents
- Introduction
- The Jurisprudence of Kelsen and Hart
- Kelsen’s Pure Theory of Law
- Hart’s Legal Positivism
- Application to Roman and Hindu Law
- The Concept of Law
- The Concept of Justice
- Legal Institutions
- Conclusion
List of Primary Legal Materials
Corpus Iuris Civilis
Manusmriti (The Laws of Manu)
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Legal positivism, a dominant school of thought in modern jurisprudence, seeks to separate the question of what law is from what law ought to be. This essay examines the theories of two leading positivists, Hans Kelsen and H.L.A. Hart, to assess their utility in understanding legal systems far removed from the modern Western state. By applying their respective frameworks to Roman law and classical Hindu law, this essay will evaluate which theorist provides a more effective toolset for analysing three core aspects: the concept of law, the definition of justice, and the function of legal institutions. This essay will argue that while both theories present challenges when applied retrospectively, Hart’s more flexible, sociology-informed approach offers a more comprehensive framework for understanding these historical legal cultures. Kelsen’s rigid 'Pure Theory', by contrast, struggles to accommodate the complex interplay of religion, morality, and social practice inherent in both the Roman and Hindu traditions.
2.1 Kelsen’s Pure Theory of Law
Hans Kelsen developed a ‘Pure Theory of Law’ which sought to create a science of law, free from all non-legal elements such as sociology, politics, and morality.^[1] For Kelsen, law is a system of norms, or 'ought' statements, which prescribe sanctions. The validity of any given legal norm is derived from a higher norm within a hierarchical structure (Stufenbau).^[2] For example, a contractual obligation is valid because it is created in accordance with a statute, which is valid because it was passed according to the constitution. This chain of validity cannot continue indefinitely; it ultimately rests upon a foundational, non-posited norm which Kelsen termed the Grundnorm, or ‘basic norm’. The Grundnorm is not a legal norm in itself but a presupposition—a necessary hypothesis—that the historically first constitution ought to be obeyed.^[3] Its validity is assumed, providing the ultimate source of validity for the entire legal system.
2.2 Hart’s Legal Positivism
H.L.A. Hart also sought to explain the nature of law but took a different approach, grounded in analytical philosophy and social facts. In The Concept of Law, Hart argues that a legal system is a union of primary and secondary rules.^[4] Primary rules are those that impose duties or grant rights to individuals, such as the rules of criminal law or tort. Secondary rules are rules about the primary rules; they specify the ways in which primary rules can be identified, changed, and adjudicated.^[5] The three types of secondary rules are the rule of change, the rule of adjudication, and, most importantly, the 'rule of recognition'. The rule of recognition is the ultimate criterion for identifying valid law within a system. Unlike Kelsen’s Grundnorm, it is not a presupposition but a complex social fact, identifiable through the actual practice of legal officials (judges, legislators) who accept the rule from an 'internal point of view' as a common public standard of correct judicial decision.^[6]
3.1 The Concept of Law
When analysing the fundamental concept of law in these two cultures, Hart’s framework proves more adaptable. Roman law was not a single, static code but a multifaceted system that evolved over centuries, drawing its authority from sources as diverse as the Twelve Tables, statutes (leges), the edicts of magistrates, senatorial decrees, and the writings of jurists.^[7] Applying Kelsen’s theory requires identifying a single Grundnorm. One could perhaps posit the ultimate authority of the ‘Senate and People of Rome’ (Senatus Populusque Romanus), but this becomes difficult to sustain across the Republican, Principate, and Dominate periods, where the source of sovereign power shifted dramatically.^[8] Hart’s rule of recognition, however, is better suited to this complexity. It can be seen as the evolving social practice of Roman jurists and officials who recognised this changing combination of sources as legally authoritative. The acceptance of the Corpus Iuris Civilis by Justinian’s officials would be a clear example of a rule of recognition in practice.^[9]
The challenge is even greater with Hindu law. Classical Hindu law is derived from the concept of Dharma, which encompasses religion, morality, and social duty.^[10] Its sources are primarily sacred texts, such as the Vedas and the Smritis (e.g., Manusmriti). Kelsen’s theory, with its insistence on purity, cannot easily accommodate a legal system whose ultimate source of validity is divine revelation. The Grundnorm would have to be a command like ‘one ought to obey the Vedas’, a transcendental norm that falls outside Kelsen’s presupposed, human-based constitutional framework.^[11] Hart’s theory is again more flexible. The rule of recognition can be framed as the social practice of the Brahmin priests and the King's court in accepting the Dharmashastras as the authoritative sources for resolving disputes. This grounding in observable social practice provides a stronger analytical tool than Kelsen’s abstract presupposition.^[12]
3.2 The Concept of Justice
In examining the concept of justice, Kelsen's theory is of very limited utility, by its own design. Kelsen regarded justice as an "irrational ideal," a matter of subjective moral preference and therefore outside the scope of his scientific theory of law.^[13] His theory can analyse a legal system’s structure but offers no tool to examine its content or its relationship with justice.
Hart, while a positivist, provides a more useful, if still limited, framework. He separates law and morality but does not deny their frequent intersection. His analysis of justice focuses on the principle of treating like cases alike and different cases differently, a concept of procedural fairness that is central to legal administration.^[14] In Roman law, the concept of iustitia (justice) was central and explicitly linked to law (ius), particularly through the idea of ius naturale (natural law), which was seen as a source of universal fairness.^[15] Similarly, in Hindu law, the entire system of Dharma is aimed at achieving a just and righteous cosmic and social order. Hart’s framework allows us to acknowledge these connections and analyse the procedural aspects of justice within these systems, whereas Kelsen’s theory dismisses the entire inquiry. Therefore, Hart provides the stronger, though incomplete, toolset for examining justice.
3.3 Legal Institutions
When considering the legal institutions of both cultures, Hart’s functional analysis of secondary rules once again provides a clearer lens than Kelsen’s abstract hierarchy. The Roman legal system included institutions like the assemblies (comitia), the Senate, the praetors who issued edicts, and later, the emperor. Hart’s rules of change and adjudication map directly onto the functions of these bodies. The assemblies and the emperor provided rules of change by creating new laws, while the praetor’s court was a clear institution of adjudication.^[16] Kelsen’s Stufenbau can describe the hierarchy of norms these institutions produced (e.g., an imperial decree being superior to a local edict), but it offers less insight into how these institutions functioned as part of a working legal system.
In the Hindu legal tradition, the key institutions were the King’s court (rajasabha) and councils of learned Brahmins who interpreted the sacred texts. Hart’s secondary rules provide a robust way to understand their roles. The interpretations and commentaries of Brahmin scholars can be seen as operating under a rule of recognition, identifying the valid sources of Dharma. The King’s court acted as the primary institution of adjudication, applying these norms to specific cases.^[17] Kelsen’s model struggles to capture this dynamic between interpretation and application, which was less about a rigid hierarchy of commands and more about a hermeneutic process governed by accepted practices, a concept better captured by Hart's rule of recognition.
In conclusion, while both Kelsen and Hart offer powerful positivist theories for understanding the structure of modern law, Hart's framework proves to be the superior analytical tool for examining historical legal cultures like Roman and Hindu law. Kelsen’s Pure Theory, with its demand for a singular, presupposed Grundnorm and its strict exclusion of morality and social facts, is too rigid and abstract to adequately capture the multifaceted and evolving nature of these systems. Hart's concept of the rule of recognition as a social fact, and his functional analysis of primary and secondary rules, provides a more flexible and empirically grounded approach. It is better equipped to explain the diverse sources of law, the function of legal institutions, and, to a limited extent, the relationship between law and justice in societies where these concepts were deeply intertwined with religion and social custom.
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List of Scholarly References
Books
Buckland WW, A Text-Book of Roman Law from Augustus to Justinian (3rd edn, Cambridge University Press 1963)
Derrett JDM, Religion, Law and the State in India (Faber and Faber 1968)
Hart HLA, The Concept of Law (3rd edn, Oxford University Press 2012)
Kelsen H, Pure Theory of Law (Max Knight tr, University of California Press 1967)
Menski W, Hindu Law: Beyond Tradition and Modernity (Oxford University Press 2003)
Nicholas B, An Introduction to Roman Law (Clarendon Press 1962)
Journal Articles
Kelly JM, 'The Inner Nature of the Law: A Study in Analytical Jurisprudence and General Philosophy' (1969) 20(3) Irish Jurist 338
Rocher L, 'Hindu Law and Religion: The Two Sides of a Coin' (1972) 1(1) Journal of the International Association for the History of Religions 4
Stewart I, 'The Basic Norm as a Fiction' (1987) 50(2) Juridical Review 199
Footnotes
^[1]: Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 1. ^[2]: ibid 221. ^[3]: Iain Stewart, 'The Basic Norm as a Fiction' (1987) 50(2) Juridical Review 199, 201. ^[4]: H.L.A. Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 79. ^[5]: ibid 94. ^[6]: ibid 102, 110. ^[7]: Barry Nicholas, An Introduction to Roman Law (Clarendon Press 1962) 14-45. ^[8]: W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian (3rd edn, Cambridge University Press 1963) 1-26. ^[9]: Nicholas (n 7) 46. ^[10]: Ludo Rocher, 'Hindu Law and Religion: The Two Sides of a Coin' (1972) 1(1) Journal of the International Association for the History of Religions 4, 5. ^[11]: J. Duncan M. Derrett, Religion, Law and the State in India (Faber and Faber 1968) 75. ^[12]: Werner Menski, Hindu Law: Beyond Tradition and Modernity (Oxford University Press 2003) 34. ^[13]: Kelsen (n 1) 60-61. ^[14]: Hart (n 4) 157-159. ^[15]: J.M. Kelly, 'The Inner Nature of the Law: A Study in Analytical Jurisprudence and General Philosophy' (1969) 20(3) Irish Jurist 338, 342. ^[16]: Nicholas (n 7) 22. ^[17]: Menski (n 12) 211.
