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THE PURE THEORY OF LAW
The idea of the pure theory of law was propounded by the formidable Australian jurist
and philosopher ‘HANS KELSON’ (1881-1973). Kelson began his long career as a legal
theorist at the beginning of the 20th century. Kelson claimed, hopelessly contaminated
with political ideology moralizing on one hand, or with attempt to reduce the law to
natural or social science, on the other hand. He found both of these reductionist
endeavors seriously, flawed. Instead, kelson suggested a pure theory of law which would
avoid reductionism of any kind. This theory is ‘pure’ because it separate jurisprudence
from other discipline like ethics, politics and psychology. This is important because
different disciplines have different methodology, and so, it is hard to analyze law when it
all mixed up with other things. Kelson pure theory allows for a pure ‘legal system’.
Kelson propounded, “characterize itself as a pure theory because it aims at awareness
focused on the law alone” and this purity serve as its ‘basic methodological principle’
In this theory Kelson regards jurisprudence as a normative science and not a natural
science. In natural science, laws are statements of the sequence of cause and effect. There
can be no infraction of such a law, for a single infraction invalidates the law but
according to Kelson jurisprudence is a normative science. It means; “if a person commit a
murder he ought to be hanged”. According to Kelson, a legal system is not a collection of
‘ought’ but a hierarchy descending downwards from a ‘Grundnorms’.
GRUNDNORM is the starting point of pure theory of law. Kelson first
time used these words basic norms- grundnorms. The law according to him is a system of
norms. He maintained that legal system norms are created by acts of will or in other
word, its a deliberate human action, as opposed to moral norms which is by God. In
relation to this, the pure theory takes into consideration that only the norms created by the
acts of human being, not norms which come from other superhuman authorities .Central
idea to the pure theory of law is the notion of a “basic norms”-the grundnorm
presupposed by the jurist, from which all ‘lower’ norms, begin with constitutional law
and understood to derive their authority. In this way, Kelson argues, the legal system can
be best understood without tracing superhuman source such as God, personified nature,
state or nation. According to Kelson state is ‘synonym’ for the legal order so, there is no
distinction between state and law. Law regulates its own creation; there can be no
dualism between law and state. Law needs to be imperative.
This theory reduces chaos and multiplicity. Legal theory is not connected with
effectiveness of legal norm. It’s a presumption through which the whole system rest. Law
and state are similar things. Kelson denies the existence of the concept ‘sovereign’ as
personal entity he said there is no difference between public land private law. The theory
denies individual right. Kelson said that the concept of right is not basically essential for
a legal system. Legislative, executive and judiciary are norms creating agencies. For the
reason there is no deference among them. In this theory state is viewed as system of
human behavior and an order of compulsion. The pure theory described the positive law
as an objectively valid order and, states that this interpretation is possible, not necessary,
and present the objective validity of positive law. Kelson insisted that the task of positive

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Hans kelson: general theory of law .Translated by Andes Wedberg. New Tersey the law book exchange ltd. 2009,p35
2 http;\\en-wikipedia.org/wiki/jans-kelson
3 Imran hassan khan nayazee: jurisprudence, 2th. Ed.2010 p.96
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law is not justice, but maintenance of peace. For this, a monopolization of force is
necessary, which can be the only function of law.

THE STAE VS DOSSO

(PLD 1958 SC 553)

COURT: supreme court of pakistan

PRESENT:
1 .Chief Justice Mr. Munir
2. Justice Mr. M. Shahabuddin
3. Justice Mr. A.R Cornelius
4. Justice Mr. Amiruudin Ahmed

INTRODUCTION
State vs dssso is a simple case of murder committed by a person named, dosso in
balochistan. He was convicted under the tribal system of justice by ‘LOYA JIRGA’ as
enumerated in FCR (frontier crimes regulation) but his relative approach to the high court
which repealed the decision of loya jirga. lahore high court heard under the constitution
of 1956,and gave the decision in favor of dosso. Lahore high court also declared FCR as
an unconstitutional. The federal government fled appeal against this decision in Supreme
Court and Supreme Court decided in favor of federal government. This case got
prominence (fame), because it indirectly questioned the legitimization of martial law
which imposed by Sikandar Mirza on 7th Oct, 1958.

FACT OF THE CASE

Dosso and others were convicted under section 11 of FCR 1901, and they handed over to
Loya jirga. The jirga decided that dosso is convicted person. But dosso relatives filed the
petition against the proceeding of the jirga in Lahore high court. They challenged that the
relevant provision of FCR were void being repugnant in the “equality before law” and the
right to committee embodied in article 5 and 7 of the 1956 constitution. The high court
decided the case in favor DOSSO and declared FCR repugnant to 1956 constitution,
under article 5 and 7 which ensure the equality before law. Consequently, Lahore high
court decided the proceeding of council as null and void. After this decision the validity
of those cases were questioned, which were decided under FCR (frontier crimes
regulation) before it was enacted and after promulgation of the new constitution of 1956.
So, after this viewpoint the federal government appealed in supreme court against the
decision of high court Lahore, the supreme court decided the 13 oct 1958 as the date if
hearing but prior to that a drastic change came in the political history of Pakistan, and 1st
martial law was impose in the country.

PROMUHLATION OF MARTIAL LAW

On October 7th 1958 the president Sikandar Mirza declared the martial law and made
Ayub Khan as chief martial law administrator, and he dissolved the central and provincial
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legislature assemblies. Later than three days the new law order was issued and according
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to the order all other laws except of 1956 constitution were validated and also the
jurisdictions of courts were restored. Thus, law order 1958 was the new legal order which
replaced the old legal order (1956 constitution).

DECISION OF THE SUPREME COURT

The Supreme Court decided the case unanimously against the judgment of the high court.
The judgment held that 1958 martial is a kind of revolution which is not opposed by the
common people. And this is clearly defines that the people are happy with this change,
and this revolution is legal because it satisfies the people in the country. The Supreme
Court held that the law which issued is a new legal order and the power of law is
determined in judicial decision. The Supreme Court also held that as the 1956
constitution was abrogated therefore, FCR 1901 was still in force in accordance with the
new order 1958. The court also made a reference to the decision of JIRGA that its
decision is valid.
The decision of the Supreme Court was based on the HANS KELSON’S theory of legal
positivism.

CRITICAL ANALYSE AND IMPACT OF DECISION

The Supreme Court recognize the martial law as legal and valid action, this had a far
reaching effect on the political history of Pakistan. It open the gates for the future martial
law in the country, it also provided the absolute power to the martial law administrator,
who liberally used it for next ten to eleven years. This decision halted the democratic
process in Pakistan and threw the country onto the track of dictatorship. And encourage
the military invention in Pakistan. This decision validated the imperialism. It also
validated the FCR ‘the black law’ which is still enforces even today in frontier and
balochistan. Resultantly Pakistan was deprived from its independent constitution and
achieve after a long struggle. This decision also took away the power of the courts to hear
the cases against the federal government. The martial law was also the reason of the
separation of east and West Pakistan.

CONCLUSION
In the case of Pakistan Supreme Court used jurist HANS KELSON’S theory that a
revolution can be justified when the basic norm under the constitution disappear and a
new system take place. When the revolution come so, usually the new old system
replaced to the new one.

4 the state vs dosso and others, PLD SC 533 (1958)(PAK)

dosso-case-updated.html
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