Hans Kelsen on the normativity of law: A critical appraisal

Abstract

Hans Kelsen (1881-1973) is an outstanding American philosopher, jurist, and public affairs analyst whose enormous contributions to the  realms of philosophy of law, political sociology, civil and criminal litigation, legal reasoning, etc., cannot be over-emphasized. His  conception of law is coloured and shaped, to a large extent, by his uncompromising and unflinching commitment to the major  assumptions or ideals of rigorous legal positivism as a school of thought in legal philosophy which holds that there is no necessary connection between law and morality. This paper therefore, attempts an exposition of Kelsen‟s concept of the normativity of law. It x-rays  his idea of „basis norm‟ (Grundnorm) and how it features in a legal system noting its relative strengths and weaknesses.  Methodologically, it adopts qualitative research method which is basically descriptive and employs textual analysis of both primary and  secondary texts. It also utilizes the method of philosophical hermeneutics in its exploration and interpretation of Kelsen‟s pure theory of law. Its epistemological significance consists of a conceptual and logical clarification of key themes in Kelsen‟s legal theory. It also  provides a blueprint or template for the law making process in the Nigerian body-politic. It posits in conclusion, that Kelsen‟s  conceptualization of law and its operational workings in a legal system is both infallible and plausible as it tends to accord the concept of  law an autonomous status. It recommends a reconstructive adaption of Kelsen‟s idea of basic norm for contemporary Nigerian legal   system.