Pure Theory of Law in Mauritius
Hans Kelsen was an Austrian-American legal philosopher born on the 11th October 1881 in the Czech Republic and he passed away on the 20th April 1973 in the USA. He contributed to the drafting of the Austrian Constitution and developed the ‘pure theory of law’ which he first introduced in Chief Problems of the Doctrine of International Law (1911) and further expanded on it in General Theory of Law and State (1945). Kelsen’s work was influenced by Kantian philosophy which has inspired his quest for a ‘pure’ theory. The pure theory of law is theoretically free of any external influence and its major element is the norm, the most important one being the Grundnorm. The latter is influenced by historical facts and the aim of this research is to investigate Mauritian jurisprudence with respect to the normative science of Kelsen.
The first part of the essay will be an exposition of Kelsen’s Pure theory of Law, followed by a short summary of major historical facts of Mauritius. The next part concerns the identification of some important elements of the current legal system which pertain to and might prove incoherent with the pure theory of law. We shall end on how positive theory of law can provide solutions to the limitations of Kelsen’s .
As the name implies, the ‘pure theory’ aims at ruling out any other discipline by ‘excluding from … everything which does not strictly belong to the subject-matter law’ (Freeman, 2008) to answer the eternal question ‘what is law?’. Although Kelsen admits that law can be described as a social phenomenon, his aim is to create a normative science where law is only defined in terms of norms.
The pure theory of law is a system of norms addressed to officials who must apply ...
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...e have seen, the Pure Theory of law is much more complex than a mere series of norms arranged in hierarchal order. The process whereby each one 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 light of the Mauritian history and present legal system has proved to be an interesting exercise as we could infer that the process of setting up a new legal system is not only a complex one but a striking part of the old norms can still remain after the revolution. The unique hybrid legal system of Mauritius does not make the Pure Theory of Law incoherent but the process whereby the basic norm validates all the lower ones might not apply correctly in this case. To conclude it would seem that the Rule of Recognition of hart provides a better answer to this problem that the Pure Theory of Law.
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