Importanceof Law in the Society: An Analytical Comparison of Karl Llewellyn’sTheory of “Legal realism” and Hans Kelsen’s “Pure theory oflaw”
Today,every society has some way of maintaining social order, some form ofencouraging and marking favorable behavior ways of resolving variousdisputes, and deterring those behaviors that are unfavorable in thesociety. Imagine a world in which there are no general and abstractrules to govern various behaviors, and people rights are violated bythose who rule. Although it seems hard to picture such a scenario intoday’s world, many years ago various theorists had to come up withdifferent definitions of what law does, its purpose, the nature ofjustice, the relationship between law, ethics, and power, and therole of democratic state two prominent figures for these theorieswere Karl Llewellyn, father of legal realism and Hans Kelsen, fatherof pure theory of law who wrote various explanations through writingsabout jurisprudence in hopes of improving its meaning. Both of theirtheories are expressed toward systems of sociological jurisprudencealthough in different viewpoints.
Notonly have both the theory of Kelsen and Karl Llewellyn made valuable,striking, original, and significant contribution to sociologicaljurisprudence, but also they have impacted the modern legal thoughtin a considerable manner. For instance, the pure theory of Kelsen hadimpacted various later positivists such as Hart and Tony. Llewellynis also still viewed as a significant author and scholar in legalmatters, and his legal writings are used even in non legal areas. Theaim of this paper is to compare and contrast Kelsen and Llewellyn’slegal thinking and viewpoints, and then observe their contributionson social jurisprudence, which can be found in their writings. It isalso important to acknowledge George Pavlich Book on Law& society redefined.Although other books have been written about the theories of Kelsenon pure theory and Llewellyn’s legal realism in development ofcommercial law, the Pavlich’s book beats them all in itscomprehensiveness. The book offers an intellectual biography that isdefinitive to meaning of law and society by giving different legalthoughts from different legal proponents. Pavlich’s analysis of thetheories of Kelsen and Llewellyn is framed in an important and uniqueway.
First,both theorists were once professors of jurisprudence, which meansthey had a good grasps of what law entails. Llewellyn taught as aprofessor of jurisprudence in Columbia while Kelsen had worked as aprofessor in various institutions such as University of Vienna,Cologne, and university of California. Llewellyn is well known forhis contributions on developing various theories on legal realismwhile Kelsen on the other hand, is well known for his writings ontheories of state and the law, and his perception on internationallaw, and legal sociology, and his pure theory of law that made himattain worldwide fame as a legal political philosopher.
Inhis theories of law, Kelsen seem to be more inclined to legalpolitical philosophy than Llewellyn whose theories are inclinedtowards commercial law. Kelsen’s pure theory of law shows hiscomprehension of political legitimacy and also suggests arelationship between rule of law and political legitimacy. His viewson his theory of democracy, rule of law, international law, anddefense of the review of the constitution shows how his writings werepolitically inclined (Paulson, 2000). Moreover, his analysis of legalnormativity reflects a well defined political legitimacy that cannotbe compared to any other contestable and comprehensive theory ofjustice. This view offers important background on modern law byproviding a notion of how individuals of pluralist societiesrecognize that the law has a binding nature, even when its details donot comply fully with their meaningful views of the prerequisites ofjustice, as long as it is generated in conformity with an exemplaryfair arbitration amongst various social groups. Karl Llewellyn on theother hand, declared that other factors that are not related to lawinfluences the decision making of the judges, therefore it isimportant for examination of various legal opinions that might impactthe verdict of the judges. According to him, training of the lawyersshould be done in a way that they are taught to make arguments thatare persuasive that puts an emphasis on specific case facts, becauseit is possible for such facts to affect the outcome more than theapplicable law (Schauer, 2012). This means that factors that areextra legal such as historical, cultural, psychological, and socialfactors are as important as the principles and rules of a legalsystem in determining the end result of a legal proceeding. Holmesand pound influenced his model of legal realism.
Ithink Llewellyn was right when he argued that other factors otherthan those of applicable law affect the outcome of a case. Today, thelegal outcomes in many countries are influenced by corruptible,discriminative, or rogue judges who make judgments in the guise ofusing factual evidences. Thus, law cannot be simply be termed as aform of a norm as Kelsen did without necessarily considering variousfactors that might impact the decision of the person presiding thecourt proceedings. Both their thoughts have been adopted by variouscontemporary legalists.
BothKelsen and Llewellyn theories give us an understanding of the natureof law by giving a description of what makes law so distinctive,although through different ideologies. According to Kelsen, law canonly be characterized by a basic norm and basic form (Conklin, 2006).He further argued that the structure of each and every law isdirected at the courts, follows a conditional order, and works as adeterrent in socially unacceptable behaviors. Following his view, lawin this case does not guide people on what to do but directsofficials on what to do with people under specific conditions, whichmeans the law acts as an indirect system of counsel. Therefore,according to Kelsen, the legal duties imposed on specificunacceptable behaviors are purely logical correlates of the primenorm which specifies a deterrent for such behaviors (Pavlich, 2010).In simple terms, he defined law as a specific type of norm. Llewellyndid not define the nature of law but did a considerable work bydefining law as composed of five law jobs. He argues that the purposeof law in any society is classified in what he called five law jobs(Pavlich, 2010). First, law according to Llewellyn performs the rolesof preventing any disorderliness within any community, which meansthat orderliness, stability, and peace in a society are allmaintained by law because it offers various means of resolvingdifferent disputes. Second, disputes among the members of the societyare resolved by law. For instance, business activities arefacilitated by the property laws, while individual freedom is ensuredby laws that limit the government powers. Third, law acknowledges thestructure of authority in a society. Fourth, the law initiates rulesin a procedure with the aim of performing other tasks (Tumonis,2012). Fifth, law accommodates community and its members’ changes.This means that social change can be fulfilled by law.
BothKelsen and Llewellyn theories disagree with the imperativalists viewthat one sovereign command all the laws of a legal system. Kelsenargues that they all link in one specific series of authority. Forinstance, what he says is, a rule becomes legitimate because it isformed by an agency lawfully exercising specific powers granted on itby the responsible legislature, which gives such powers in a waygiven by the constitution, which was formed in a manner given by aspecific earlier constitution. He further states that the validity ofa norm is determined by another norm, which means no oughtfrom is(Pavlich, 2010). Thus, the legal system is composed of various normsfrom up to down. In my opinion, it is difficult to say that a basicnorm validates all other inferior norms and also that an inferiornorm becomes a piece of the legal system if only it is attached to aseries of validity to the basic norm. However, this is reflected evenin contemporary law where laws of a specific state are governed by abasic norm, which is the constitution and alteration of the basicnorm can have adverse effects on the laws of the land, and on thesubordinate groups. This is because Kelsen believed in hierarchicalnotion of law. Therefore, Kelsen states that a law is valid if it issystematically valid in the jurisdiction and not morally upright(Conklin, 2006). This notion fails to owe law nothing by notmentioning the judges and subjects’ obedience to law. According toKelsen, “The science of law does not prescribe that one to obey thecommands of the creator of the constitution” (Pavlich, 2010).
Inhis arguments, Llewellyndidnot hold the belief that decisions made in the courts are solelyrepresented by the rules. However, he believed in utility andexistence of rules. He argued that if law is viewed as havinginflexible rules only (sovereign command), then people lose someaspects of the nature of law. In addition, he held the belief that aproper understanding of rules promotes legal certainty and at thesame time allows the judiciary the freedom to exercise what isregarded as just in particular society. Also, D’ Amato (n.d.)suggest that Llewellyn viewed the law as a social institutionimpacted heavily by cultural factors.
Inregard to morality, these two theorists took different approaches indemonstrating the relationship between morality and law, with thetheory of Kelsen failing to account for morality. According to him, alaw is a law, despite people’s moral objection of it (Paulson,2000). His theory of pure theory of law insists more on the factualof law rather than show that law has an important role of making thelife of people go well, that the practice and language of law isfavorably moralized, and that the rule of law is a valuable epitome. I think law and morality are aspects of a society that influence oneanother. Therefore the aspect of morality in law should not beignored because it impacts the modern legal thought. The lawprescribes various sanctions for infringement of set standards whileethics expects individuals to act in an ideal manner. Morality on theother hand is people’s categorization of what is good or bad.Therefore, lawmaking can be guided by ethical and moral values.
Llewellyntakes a different side on this issue. Like other realists he believedin temporal divorce between morality and law. The quest of therealists is based on moral values, which operates to enhance the law.In spite of that, for the law to be enhanced, the realists shouldknow the law as it is as contrasted with what the realist wouldprefer the law to be (Schauer, 2012).Moreover, according to D’Amato (n.d.), realists make a discovery that moral considerationsshape the law as it is in the guise of logic. At this particularpoint, the law is conjoined with morality and the responsibility ofthe courts is to align justice with law, and open up about theiroperations.
Inconclusion, the theory of legal realism and pure theory of law byLlewellyn and Kelsen respectively offered fresh methods to the studyof law and society during their times. Although many of theirwritings are not seen as innovative today, they have been used widelyin the contemporary world the legal ideas they advanced in manyyears ago have become today’s commonplace for social scientists inthe field of legal and law issues, and scholars in contemporaryjurisprudence. From their thoughts, we are able to get what lawentails and its importance in the traditional and contemporarysociety. Not only has their legal thoughts survived through the ages,but also they have survived political settings, and have led toadvancement of the study of law. Both the factors influencing theaction of the judge and basic norms are very significant aspects inthe implementation of law in the society today.
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D’Amato, A. (n.d.). Karl Llewellyn. YaleLaw Journal,207-209.
Paulson,S. (2000). On the Puzzle Surrounding Hans Kelsen`s Basic Norm. RatioJuris,13(3), 279-293.
Pavlich,G. (2010). Law& society redefined.Don Mills, Ont.: Oxford University Press.
Schauer,F. (2012). Legal realism untamed. Texaslaw review,91, 749-780.
Tumonis,V. (2012). Legal Realism and Judicial Decision Making. Jurisprudence,19(4),1361- 1382.