- Introduction
Hans Kelsen was born in Prague on the 11th October 1881. Kelsen studied
law in Vienna taking his doctorate in 1906 and later acted as a professor at
the University of Vienna. Because of his family's Jewish origins, Kelsen was forced to disrupt his career several times and move
from country to country, but this enabled him to interact and associate with
legal scholars from different parts of the world. In 1919, Kelsen was asked to
write the constitution of the Austrian Republic. The constitution was adopted
in 1920 by the government. Kelsen also served on the Austrian Constitutional
Court but due to political attacks he immigrated to Germany where he taught
international law at the University of Cologne. Later he moved from Germany to
Switzerland and at the beginning of World War II, Kelsen immigrated to the United States, where he taught until 1952, and
served as legal adviser to the United Nations
War Crimes Commission. Kelsen died on 19th April
1973.
His work and writings were greatly influenced by the German philosopher
Immanuel Kant and his background in the civil law system of continental Europe.
Considered as one of the preeminent jurists of the twentieth century Kelsen
wrote almost four hundred works on legal philosophy some of which have been
translated into twenty-four languages. Kelsen‟s writings include General Theory
of Law and State and The Law of the United Nations. Similar to other
positivists Kelsen rejected natural law theory and came up with his own theory. His legal theory, a very strict
and scientific type of legal positivism, is based on the idea of a hypothetical
norm on which all subsequent levels of a legal system is based. This theory
traced the legitimacy of legal legislation back to a fundamental "ground
rule" or Grundnorm in German.
Kelsen is known for his most rigorous development
in positive law. His theory of pure law is based on logic. It has normative
nature and is devoid of the influence of other worldly knowledge especially of
the social sciences. The theories of Hans Kelsen still remains an essential
point of reference in the world of legal thought. Kelsen‟s influence is still
felt in a number of areas, such as the general theory of law, constitutional
law, international law, philosophy of
law, issues of justice, sociology and politics.
In this assignment we aim to
explain Kelsen‟s pure theory of law, hierarchy of norms and law making process
and also compare Kelsen‟s pure theory with Harts rule of recognition.
- Pure Theory of Law
In his book Reine
Rechtslehre 1934 (Pure Theory of Law) Kelsen writes “ It is more than two decades since I undertook the development of a pure theory of law, that is, a theory of
law purified of all political ideology and all natural-scientific elements and
conscious of its particular character because conscious of the particular laws
governing its object. Right from the start, therefore, my aim was to raise
jurisprudence, which openly or covertly was almost completely wrapped up in
legal-political argumentation, to the level of a genuine science, a science of
mind.”
Kelsen states that the pure theory provides „the
fundamental principles by means of which any legal order can be comprehended
and that it is a „general jurisprudence‟ furnishing „the basic conceptions that
enable us to master any law‟ and accordingly serving as „the theoretical basis
for all other branches of jurisprudence‟ such as historical or comparative
jurisprudence and even sociology of law.
According to Kelsen the pure theory of law is called likewise because it
only describes the law and attempts to eliminate from the object of this
description everything that is strictly not law: Its aim is to free the science
of law from alien elements‟ Wayne Morrison, describes the pure theory of law as
a theory of positive law. Morrison
states “As a theory it is exclusively concerned with the accurate definition of
its subject matter. It endeavors to answer
the question, what is the law? But not the question, what ought it to be? It is
a science and not a politics of law.” As a positivist, Kelsen believed that
the existence, validity and authority of law had nothing at all to do with such non-legal factors as politics,
morality, religion, and ethics.
Kelsen claimed that his theory is pure based on two
factors. First it distinguishes law from fact. Second, it distinguishes law
from morals. Kelsen‟s views are contradictory to the doctrine of precedents
that legal ideas are found in the course of deciding cases. Kelsen‟s pure
theory of law does not reflect circumstances of actual legal systems. By the
Pure Theory of law, Kelsen intended to remove all the impure or alien elements
from law and to leave a material that is purely legal. Thus natural law, moral,
religious, social, and other accretions that are not strictly law had to be
eliminated. Kelsen classified all these impure or extraneous elements that are
not strictly law as The Alien Elements.
Law and nature are categorically different. From a legal point of view,
law is norm, not fact. Kelsen was of view that, as law needs to be
distinguished from nature, so it needs to be distinguished from other ideal
realities, in particular from morality. Morality is transcendent in the Kantian
sense, law is subject to cognition. Connecting morality and law is the hallmark
of ideologies, revolutionary or conservative. According to Kelsen „pure theory
of law means that it is concerned solely with that part of knowledge which
deals with law, including from such knowledge everything, which does not
strictly belong to the subject matter of law. That is, it strives to free the
science of law from all foreign elements.
Kelsen stated that a theory of law must deal with
law as it is actually laid down and not as it ought to be. A theory of law must
be distinguished from law itself. According to Kelsen, a theory of law should
be uniform. It should be applicable to all times and in all places. Although
Kelsen did not deny the value of ethics, politics, history, sociology his
theory of law was clear of those considerations. The implications of Kelsen‟s
theory are wide and many. It covers the concepts of state, sovereignty, private
and public law, legal personality, right & duty and international law.
- Kelsen’s criticism of Natural Law
Kelsen‟s explanation of normativity is closely
connected to his critique of natural law theories, to which he believes his
theory is the only alternative. Kelsen points out that according to natural
law, there is no specific notion of legal validity. The only concept of
validity is moral validity.
Kelsen claims that Natural law theories are
conceptually confused: one is secular and the other is religious. The secular
theories regard natural law as rationally binding and self-evident. The religious
theories regard them as commands of God binding on human. The basic norm of
secular theory is that nature be obeyed, whereas the basic norm of religious
theory is that God be obeyed.
Another criticism thrown by kelsen at Natural law
is that Natural law theories are unscientific and therefore they cannot be
objectively confirmed. Kelsen‟s theory seeks to isolate that which makes law
valid without reference to morality. Kelsen sets up his theory by first making
a fundamental distinction between the “prescriptive” and “descriptive” aspects
of positive law. Unlike Bentham and Austin who sought to describe how a legal
system works, Kelsen digs deeper into this theory seeking out a “prescriptive”
dimension.
- State and Sovereignty
Kelsen empathetically denies the existence of
sovereign as a personal entity. He denies also the existence of state as an
entity distinct from law. Sovereignty is taken by Kelsen to be a strictly
political notion which refers to an empirical phenomenon of the
highest power. State is neither more nor less than the law, an object of
normative juristic knowledge in its ideal aspect, that is, as a system of
ideas, the subject matter of social psychology or sociology in its material
aspect. As the state is nothing but a legal construction, there is no
demarcation between physical and juristic persons. A law is a system of
normative relations. All legal personality is artificial and deduces its
validity from a superior norm. According to Kelsen, the concept of person is
merely a step in the process of concretization and nothing else. The most
significant feature of Kelsen‟s doctrine is that, the state is viewed as a
system of human behavior and an order of compulsion. The conclusion is that,
state and law are identical but this does not mean that every legal order is a
state.
Kelsen‟s conception of law as a system of normative
relations leads to the conclusion that there is no such thing as individual
right in law. Legal duties are the „essence of law‟. Law is always a system of
oughts‟. The concept of right is not basically essential for a legal system.
Kelsen, also advocated that there is no difference between legislative,
executive and judicial processes as they are all norm creating agencies. For
Kelsen the distinction between substantive and procedural law is relative,
procedure assuming greater significance. It is the organ and process of
concretization that constitute the legal system.
- International Law
Kelsen saw international law as being part of law and the total legal
system. International law was recognised as a single supreme legal system. All
national norms should therefore be seen as subordinate to international legal
order and the validity of which is determined by a basic norm within
international law. For the international law, it is enough to basic norm of
power to be on presupposition. It does not actually need to exist Grundnorm. Rejection of sovereignty
allowed Kelsen to believe that state is not an isolated entity and it can have
higher political allegiance. Kelsen‟s main objective behind the establishment
of this theory was to create such a theory which would be universally accepted
and would be implicated to all legal systems. Kelsen says that a legal norm
should be accepted internationally. It should be a standard for the all legal
systems. Here Kelsen rejects pluralistic approach and adopts monist view in
order to make his norm effective for all legal systems.
- Impact of the pure theory on legal systems and its application
Kelsen‟s theory has been argued in courts in many occasions. In
revolutionary period within countries where one legal order has been challenged
by a revolutionary force, pure theory has come out. Revolutionary group has
argued that a change in the Grundnorm
can actually be observed. Kelsen explains; if they succeed, if the old order
ceases and the new order begins to be efficacious because the individuals whose
behaviour the new order regulates actually behave, by and large, in conformity
with the new order, then this order is considered valid order. If the
revolutionaries fail, if the order they have tried to establish remains
inefficacious, then, on the other hand, their undertaking is interpreted, not
as legal, law creating act, as the establishment of the constitution, but an
illegal act, as the crime of treason, according to old monarchy constitution
and its specific basic norms. From what Kelsen says, it seem all that is
required for the recognition of the new basic norm as valid is that there is a
certain level of support, that is, that it is seen as efficacious. But in the
actual cases where Kelsen‟s ideas have been argued, they do not seem to have
been basis for the decisions.
- Madzimbamuto v Lardner – Burke (1968)
·
Privy Council considered whether
the actions of Rhodesian Government in making a Unilateral Declaration of
Independence (UDI) were consistent with the constitution laid down by the
British 1961.
·
The Privy Council ruled that the
actions under UDI were illegal and that regime was illegal. The court had been
referred to Kelsen‟s theory, but they found that in this particular case it did
not aid them. Here, the case was not decisive of the essentially political
question as to whether a change in the Grundnorm
had been effected.
·
The Supreme Court of Nigeria
refused to apply Kelson‟s theory of revolutions. It was held that the military
coup of 1966 was not a true revolution. So the legislative capacity of a new
institution was limited by reference to the pre-existing constitution.
3.Mitchell v Director of Public Prosecutions
The Court of Appeal in Grenada
raised four conditions to regard the revolutionary government as legal;
1. A successful revolution must have taken place
2. The
government is in effective control
3. Such
conformity is due to popular support not mere tacit submission to coercion
4. The
regime must not be oppressive or undemocratic
- Criticism of the pure theory
Australian jurist Julius Stone writes that since the basic norm itself
is obviously most impure, the very purity of the subsequent operations must
reproduce that originality impurity in the inferior norm. Some also criticize
the pure theory because it excluded and separated natural law from law.
Former member of the United Nations' International
Law Commission and Judge of the International
Court of Justice, Sir Lauterpacht, said that the primacy of international law over state
law is a back door entry permitted by Kelsen's theory to natural law. American jurist Allen criticizes that sources of law like custom,
statute and precedent are co-ordinate and do not admit of arrangement in a
hierarchical pattern adopted by Kelsen. Friedmann's criticism is that the pure
science of law by Kelsen is inadequate from point of view of legal theory. The
sphere of law is now intersecting spheres traditionally allotted to other
social sciences like Economics, Psychology and Sociology.
Critiques also state that a
single theory cannot dominate over all legal systems of the world.
The pure theory cannot be binding upon all legal systems because every
legal system has its own rules and norms. Another criticism is that legal
consequences of an abrupt change cannot be judged by an abstract man made
theory. Because of its narrowness of scope it does not compete with changing
conditions and situations putting forward by the law. In regard to its efficacy
there is no any such criterion with the help of which the minimum effectiveness
can be measured. Critiques point out that the theory is not valid in
revolutionary situations. In regard to its efficacy there is no any such
criterion with the help of which the minimum effectiveness can be measured,
efficacy of legal system cannot be measured by a theory. It excluded from it the
sociological factors of morality and justice which contribute for the
effectiveness.
KELSENS HIERARCHY OF NORMS AND
LAW MAKING PROCESS
- Nature of norm
According to Kelsen “Norm is the meaning of an act by which a certain
behavior is commanded, permitted or authorized‟. A norm may take the form of a
rule or a specific command. Kelsen‟s theory obliterates the distinction between
rules and orders. A norm, according to Kelsen, need not supply a rule of
conduct that can be known beforehand a necessary condition for achieving the
rule of law. Kelsen saw law as saying what „ought‟ to happen. Norms do not say
„thou shalt not kill‟, they say „if you do kill, you ought to be punished‟.
- Primary norms and secondary norms
Another way in which Kelsen describes the distinction
between legal rules and legal norms is in terms of primary and secondary norms.
The primary norm may be seen as that statement which stipulates the sanctions
which may be applied under certain
conditions. It is the primary norm which constitutes a conditional directive to
officials to apply sanctions in certain circumstances. The legal rule, that is,
the actual rule created by the law making authority, and which specifies the
proscription or prescription of certain conduct is then only a secondary norm
and is not itself the essence of the law. The secondary norm can be derived
from the primary norm by a process of deduction. For Kelsen, all actions have a
subjective meaning and an objective meaning. An act may have no more significance
than that which can be derived from its mere occurrence.
- Legal Norm
Legal norms represent the meaning we give to a particular series of
facts. The statement in a statute that something ought to be done is not a norm
but a fact. The norm is the meaning we give to this fact when considered with
certain other facts. A legal norm is a command. Hence it is neither true nor
false. On the contrary, the statement „According to the law of Maldives murder
is punishable by life imprisonment‟ can be true of false. The former statement
in the statute prescribes behaviour.
The latter statement describes what
the law is. Kelsen distinguishes the legal norm and normal norm. Legal norm
derives its validity from the external sources and the particular “ought” of
the legal, as distinguish from the moral norm, is the sanction. Kelsen found
the distinction between legal and other „oughts‟ in that the former backed by
the force of the state, the preoccupation of law being with the prospect of
disobedience rather than obedience. Thus, it is prescription of sanction that
imparts significance to a norm, or putting it in another way. The Act of
Parliament will state that a person convicted of murder shall be sentenced to
life imprisonment. The Legal norm will state that the court ought to sentence a
person convicted of murder to life imprisonment.
Kelsen applied the Kantian distinctions with the
following results. The physical acts that give rise to law like passing of a
statute or the delivery of a judgment belongs in the world of things or fact.
They occur in time and space so we perceive them with our senses. The question
of whether these acts represent a legal norm (an „ought‟) cannot be answered
simply by observing the facts. It requires a mental inquiry about what the
facts mean in a normative sense.
It is vital to distinguish three elements of the legal process in order
to gain an accurate understanding of Kelsen‟s theory. They are as follows:
1. Legislation,
judicial precedent or custom – this is a fact
2. The legal norm – this is the „ought‟
proposition that results from the interpretation of the legislation, precedent
or custom
3. The
statement of the rule of law.
- Legal order as a coercive order
Kelsen, like other legal positivists, denied that there was a necessary
connection between law and morality. A law that gives effect to a moral rule is
law not because of its moral content but „because it has been constituted in a
particular fashion, born of a definite procedure and a definite rule of law‟. A
norm in the sense of an „ought‟ could be legal or moral. Often it is both. The
rule against theft is moral as well as legal. Law is not the only regulative
system in society. Moral norms play an important role in guiding behaviour.
Moral norms, like legal norms, have both subjective and objective existence.
Kelsen also argued that law and morals cannot be
distinguished according to their respective content. The only kind of moral
norm that cannot be a legal norm is one that is addressed wholly to a person‟s
own mind, it is also not possible to distinguish moral and legal rules by the
way they are created. There are two ways in which legal rules
come about: by custom and by the will of a law making authority. The
fundamental difference between law and morals is: law is a coercive order, that is, a normative order that
attempts to bring about a certain behaviour by
attaching to the opposite behaviour a
socially organised coercive act; whereas morals is a social order without such sanctions. The sanctions of the
moral order are merely the approval of the norm-conforming and the disapproval
of the norm-opposing behaviour and no coercive acts are prescribed as
sanctions.
- The hierarchy of norms
Kelsen‟s legal norms are arranged in a dynamic hierarchy, with each norm
deriving its validity from another norm which occupies a position higher up in
the hierarchy. These norms range from the general, which are higher norms, to
the particular, which are lower norms. The ultimate validity of all legal norms
is predicated upon a hypothetical basic norm or Grundnorm which occupies the highest position in the hierarchy, and
beyond which no other norm may exist. The basic norm can sometimes be
identified with, although it is not, the historical first constitution of a
society.
- The Validity of Norms
The basic norm is presupposed because the mere
contention that a certain norm exists presupposes its validity, and that
validity can only be derived from a higher norm, which in turn acquires its
validity from an even higher norm, culminating in a valid Grundnorm. Thus, the question regarding legal norms, including the
basic norm, is not whether or not they are valid, since the mere fact of their
existence presupposes their validity, rather it is one of whether or not, in
their existence, they belong to a particular hierarchy and hence to a certain
legal order. A rule of law is only valid if an only if it has the normative
consequences it purports to have.
Kelsen took the view that the validity of any legal
norm depends on its membership in a system of norms. Kelsen postulated a
hierarchy of norms, each norm deriving its validity from a higher norm in the
hierarchy. This hierarchy culminates in an ultimate source of validity which
Kelsen called the „Grundnorm‟ or
basic norm, a point at which the chain of validation can go no further.
A single norm and a legal order
as a whole cannot be regarded as valid, when they cease to be effective. A
legal order does not lose validity because a single norm losses effectiveness.
Accordingly a norm, which is never applied and obeyed, losses its validity.
Kelsen argues that one ought to behave as the individual who laid down the
constitution have ordained. This is what he calls the basic norm of the legal
order. Although every law is created by human action, it derives its validity
not from the act but from another law authorizing its creation.
The validity of the regulations in turn depends on their conformity with
another norm, namely an act of parliament authorizing the authority to make
regulations. The validity of parliament‟s statute likewise depends on another
norm, namely, that in terms of constitutional law parliament has the
legislative power to pass the statute. The validity of the constitution may in
turn be a function of the fact that it has evolved from an older constitution
or was created in terms of the rules of an older constitution by way of
constitutional amendment. At a certain point in this chain or hierarchy of
norms we arrive at the starting-point of the current constitutional order. Kelsen
calls this the „historically first‟ constitution. It is a constitution that
cannot be traced to an older constitution.
A norm is an „ought to be proposition‟; it
expresses not what is, or must be, but ought to be, given in certain
conditions; its existence can only mean its validity, and this refers to its
connection with a system of norms which it forms a part. Kelsen wants to
declare that this ought is what makes the law he wants to say that the law is
not premade nor it is the command to any act given by the sovereign to him the
law is what comes out in the reaction of a situation or circumstance for
example if „X‟ happens then „Y‟ ought to be happen in other words it would be
taken as; if theft happen then the Judge will order to arrest the thief.
1. Constitution
– provides that whatever Parliament enacts is law
2. Parliament
has enacted the act which appointed the judges
3. Act
appoints the judge
4. Judge
decides the person is guilty
5. The
jailer turns the key.
A legal norm, once broken, will
attract a sanction.
- Sanction
Law is a coercive order that relies upon sanction. It is the social
technique which consist in bringing about the desired social conduct of people
through the threat of a measure of coercion which is to be applied in case of
contrary conduct. Kelsen use the sanction to indicate the coercive nature of
law. He fails sufficiently to separate duty from sanction. Kelsen has rejected
the view of Austin about sanction who regards it the command of Sovereign
because it introduces a psychological element into a theory of law. That is why
he prefers Grundnorm which provides
sanction to law. Its authoritative nature makes any legal system authentic.
This sanctioning power of the Grundnorm
makes it applicable to all other laws.
- The basic norm and legal efficacy
Every society has a basic norm peculiar to it, and
this Grundnorm can be identified by
reference to the legal norms which are actually referred to by officials in
each society when they apply sanctions. It follows that it is only in a society
where officials regularly and effectively apply sanctions in accordance with
certain primary norms that we can identify a system of norms and hence a basic
norm.
Kelsen‟s formula for identifying law as a matter of
norms, hinges upon the efficacy of legal systems in the application of
sanctions. There cannot be a hierarchical system of norms in a society where
officials do not efficaciously apply sanctions. If we cannot identify such a
system, nor its basic norm then we cannot be able to identify law in that
society. It can be declared that such a society does not have law nor a legal
system. The basic norm is presupposed on account of the actual activity of
officials applying sanctions in accordance with primary norms which constitute
a system which is on the whole efficacious. It follows that the basic norm can
change, in situations where officials cease to apply sanctions in accordance
with one set of norms and start applying sanctions efficaciously in accordance
with another set of norms.
Efficacy for Kelsen relates to the degree to which people actually
comply with the law. If people do not attach credence to the law or avoid
compliance, then the law cannot acquire the requisite validity to be called
law. When legal norms are accepted officials and down the line by citizens, we
can stated that such norms have achieved the efficacy and hence, the validity.
Kelsen is not concerned with the morality of a legal norm, but whether it
exists, and whether is prescriptive nature produces both the efficacy and
validity of legal norms.
- The Grundnorm
This is the top of Kelsen‟s hierarchy of norms. The
Grundnorm gives validity authorizes
the creation, amendment and repeal of all legal rules it also lays down the
criteria for distinguishing a legal rule from any other rule. The validity of
the all norms is finally based on the Grundnorm.
Particular individual laws such as judicial decisions are the lowest level of
norms. Acceptance and validity of these norms are determined by another set of
norms (statutes). These norms received power from another set of norms which
are general and more concrete (constitutions). The Grundnorm
is not a legal norm since it cannot be validated by a higher norm. It‟s not a
legal norm since it is not created by a law creating institution, using legal
procedures it is the limit of law, the border between law and other social
disciplines. It is a presupposition that lies above the entire legal system.
The Grundnorm cannot be verified or
proved. The content of the basic norm is not fixed, but will alter according to changes in society or politics.
Every country has its own Grundnorm
from which the other norms are originated. kelsen recognized that the Ground
norm need not be the same in every legal order, but a Ground norm of some kind
will always exist whether it be a written constitution or the rule of a
dictator. Kelsen described the Grundnorm
as the fundamental assumption made by people in society about what would be
treated as law. It is not the constitution, which for Kelsen was simply another
positive norm. It is the existence of the Grundnorm
which, for Kelsen, makes the difference between a gangster‟s demands and a tax
official‟s demands. Both demands express an individual‟s subjective wish that another person should pay over a certain
amount of money, but the official‟s demands are authorized by a tax law, and ultimately by the Grundnorm, and this confers objective validity on them. It is by
virtue of the Grundnorm that we can
say that the official‟s demands objectively ought
to be obeyed.
It is apparent that what particular Grundnorm
applies in a society simply depends upon what fundamental assumptions are made
by the members of that society. The identity of the Grundnorm is ultimately a
matter of sociological fact. No moral
or other judgement or assessment is being made about it.
The Grundnorm is the base or
start of a legal system in Kelsen‟s theory. The rest of the system is pictured
as broadening down gradations from it and becoming more and more detailed and
specific. It is a dynamic process and the application of higher norms results
in creation of lower norms. Kelsens basic norm becomes important in the event
of a revolution. Kelsen says that a revolution occurs whenever the legal order
is replaced in an illegitimate way, in a way not prescribed by the former
order. When there is a change in a legal system Keslen the Grundnorm accepts this change this acceptance could be another
reason for the validity of such norm. Kelson
regards Martial law as revolution which should be accepted by constitution
of the country (to Kelsen it can be a Grundnorm). Kelsen‟s theory has been considered in
cases involving radical norm change.
- Grundnorm and its criticisms
The legal system consists of complex series of norms each one gets its
validity from a higher norm. There is a hierarchy of norms. Each one gets its
validity from a higher norm. For instance, an act is legal wen it is done
according to law, the law is valid if it is passed by the parliament in the
proper manner, parliament gets lawmaking power from the constitution, and the
constitution gets its validity form previous constitution and so on. If we go
on to the top of hierarchy of norms it would be infinity. There need to be a
stop. Kelsen regard this stop which gives validity to all norms as grundnorm or
basic norm. However validity of this grundnorm does not depend on any other
norm. According to Kelsen grundnorm is a presupposition. We assume that it is
valid just like we assume certain measurement of length is a meter.
The presupposition of the basic norm, Kelsen explains, is necessary for
anyone who wants to conceive of law as a valid system of norms, while remaining
within the framework of legal positivism. The reason is that the separation
thesis bars the legal positivist from grounding the normativity of law in
morality, say, by a reference to democracy or human rights, or, for that
matter, by reference to the will of God.7 Since the grundnorm is presupposed we
cannot say that it is pure. An assumption contains morality, ideology and other
factors, which Kelsen regard as impure element. The question arises is that who
assumes the grundnorm. Surely citizen would not assume the grundnorm. Kelsen
says grundnorm is assumed by the people who have interest in the legal system.
This means the grundnorm is assumption of a group of people.
Pure theory of law is monistic.
This means there can be only one grundnorm. When it comes to municipal law and
international law, surely there need to be more than one grundnorm. Kelsen
argues that there can be one or more grundnorm if there is no conflict with
each other.
Kelsen has not given proper characterization to the
concept of legal system. His legal system is consisting of norm, held by
conceptual string called grundnorm. His theory is considered as empty formula.
Raz criticized Kelsen‟s version of validity of law. According to Raz validity
of law arises from the law itself, which take into account factual and
historical account of legal system. The valid norms do not identify the legal
system. Grundnorm is too general to validate law. Raz (1979) makes a
distinction between justified normativity and social normativity and argues
that whereas Hart works with a conception of social normativity, Kelsen
operates with a conception of justified normativity. As Raz explains, justified
normativity is normativity that is justified, whereas social normativity is
normativity that is accepted and insisted on by the people concerned.
- Revolution
In an ongoing legal order, a norm remains valid until it is terminated
by its own terms or by a higher norm. Some laws contain „sunset clauses‟
according to which they cease to operate after the expiration of a prescribed
period. Generally, though, norms established by a law remain valid until
repealed by another norm enacted by another valid law. In other words, a valid
norm remains valid until it is terminated in the way prescribed by the legal
order founded on the basic norm. Kelsen called this the principle of
legitimacy.
Kelsen believes that the grundnorm
validates whatever constitutional order is currently in force. But how do we
know what constitutional order is in force? Kelsen‟s answer to this is: whatever
constitution is „effective‟, a constitution being effective when the norms
whose creation it licenses are on the whole applied and obeyed. This implies
that if there is a revolution in a particular country and if the revolutionary
leaders are effectively in control and generally obeyed, we have to postulate a
new grundnorm as the reason for the
validity of the new constitutional order.
Kelsen explains that he does not regard validity and effectiveness as identical. Effectiveness is a condition of the validity of legal norms
but the reason for their validity is
the grundnorm. Thus legal norms are
valid only while the political order
to which they correspond is effective, but the reason that the norms are valid is the presupposed grundnorm. Kelsen states ”suppose that a group of individuals
attempt to seize power by force . If they succeed, if the old order ceases, and the new order begins to be efficacious,
because the individuals whose behaviour the new order regulates actually
behave, by and large, in conformity with the new order, then this order is
considered as a valid order. It is now according to this new order that the
actual behavior of individuals is interpreted as legal or illegal. But this
means that a new basic norm is presupposed. It is a norm endowing the
revolutionary government with legal authority.”
Sometimes the basic norm of the legal order changes
by means not authorised by the basic norm. This can happen in a number of
different ways , sometimes violently, sometimes by peaceful and consensual
means. It happens when one state conquers another and imposes its own sovereign
power over the conquered state. The establishment of Crown sovereignty over
Britain‟s colonies subordinated local legal systems to the English law and
constitution. It happens when a region of a country secedes from the whole and
establishes its own legal order.
·
Bangladesh from Pakistan (1971);
·
Eritrea from Ethiopia (1993);
·
Slovenia (1991), Bosnia-Herzegovina (1991) and
Croatia (1995) from Yugoslavia;
·
East Timor from Indonesia (1999);
·
Kosovo from Serbia (2008).
The basic norm also changes when an empire or federation breaks up into
independent states. The basic norm may also be displaced by domestic events, as
when the constitution is overthrown in a coup
d‟etat or by a popular uprising. The English Revolution of 1688, the
American Revolution of 1776, the French Revolution of 1789 and the Russian
Revolution of 1917 are monumental historical examples of such constitutional
change.
- Revolution by force
The basic norm of a legal order may be displaced by
force. The American, French and Russian revolutions are among the best known
historical illustrations. In each case the existing basic norm was changed by
violent struggle. In some cases the change is swift and decisive and in other
cases the struggle for legal supremacy may stretch over many months or even
many years, with the basic norm remaining in a state of uncertainty. The change
in the basic norm by revolution usually means that the courts of the country
recognise it. This may happen in one of two ways. The courts may accept the new
reality and interpret the events as creating a new legal order founded on the
new basic norm.
Effects of revolution on existing law
- An attempted revolution fails and the existing basic norm is unchanged
A revolution in the legal sense is a direct and deliberate violation of
the basic norm. Revolutionary activity almost certainly will violate many other
criminal laws, such as those concerning treason and mutiny. If the attempted
revolution fails, the basic norm stands and so do all the norms that derive
their validity from it. Hence, the commands and statutes of the revolutionaries
have no legal effect. The fate of the revolutionaries will depend on how the
authorities deal with them under existing norms.
The revolution succeeds and a new
basic norm is established
A revolution changes the basic norm of the legal
order, but it is unusual for the new rulers to make wholesale changes to the
laws of the land. Many of the existing laws, particularly the private law, will
remain unaffected. Thus, contracts of the past will continue to be enforced,
property owners will retain title, torts will remain actionable and crimes will
be punishable.
- The Republic of Fiji v Chandrika Prasad (Court of Appeal of Fiji Islands, 1 March 2001)
In 2000, the military had overthrown Fiji‟s elected
government and had issued a decree abrogating the 1997 Fijian Constitution.
Prasad, a farmer who had been forced off his land during the upheaval, brought
an action in the High Court of Fiji, seeking a declaration that the revocation
of the 1997 Constitution was unconstitutional and that the elected government
was still a legally constituted government. The High Court found for Prasad, at
which point the Interim Civilian Government, established by the military,
appealed to the Court of Appeal. As George Williams explains: the High Court
and Court of Appeal were not placed in the passive role of observers of an
historical shift in the Grundnorm of
Fiji. They were cast in the centre of an unfolding drama as important actors,
and were asked by the coup leaders to recognise a new regime so as actually to
lead to a shift in the basic norm of the nation. Prasad is a very important case because the court refused to
recognise the validity of the coup, saying that the overthrow of the 1997
Constitution was illegal. This makes it the only case in which a domestic court
has pronounced a coup illegal Though the court spoke the language of
effectiveness, in fact it departed from Kelsen‟s understanding of
effectiveness, saying that compliance with the new laws is not sufficient:
obedience to the new regime must stem from popular acceptance and support, not
from tacit submission to coercion or fear of force.
CONCLUSION
The pure theory of law of Hans Kelsen, regardless of its negativity
towards the natural law teaching, started the attitude that law must be
presented such as it is, is forced, whether it wants to or not, also to deal
with the study of the corresponding contents of natural law, which in present
times under the name “human rights" make an essential integral part of the
existing international law. Although the theory has its critiques it also has
its admirers in the field of jurisprudence.
Kelsen introduced a new dimension to legal theory by compelling us to
think of the distinction, and also the relation, between fact and norm, between
legislative act and its normative effect. Kelsen offered an internally
consistent model of the legal system that in some respects reflects the
intuitive thinking of lawyers and law makers. Tracing a law‟s validity back to
the constitution is normal legal reason ing. So is the idea that valid laws
form an internally consistent system of laws. Kelsen‟s theory, unlike his
predecessors‟, recognised the laws of primitive societies and of the
international community as law.
Criticisms of Kelsen are often directed at the concepts and the internal
consistency of his theory. Critics may question the adequacy of his theory to
explain legal systems as they actually exist. Kelsen‟s idea of law as a norm to
which a sanction is attached does not easily account for some kinds of laws.
Procedural and evidentiary laws, laws creating organisations, laws conferring
liberties and rights and laws repealing other laws fit uncomfortably within the
pure theory. His arguments for the logical unity of the international and
national legal orders are unconvincing at the present time in history.
Even though its complex and unclear in some areas and have many
criticisms aimed at it its an undeniable fact that kelsens theories of law have
enriched the field of jurisprudence.