Basic norm

Last updated

'Basic norm' (German : Grundnorm) is a concept in the Pure Theory of Law created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy (akin to the concept of first principles). This basic norm, however, is often described as hypothetical.

Contents

Reaction to the term has fallen into three broad areas including (i) Kelsen's original introduction of the term, (ii) the Neo-Kantian reception of the term by Kelsen's critics and followers, and (iii) the hypothetical and symbolic use of the term through the history of its application.

Origins

Regarding Kelsen's original use of the term, its closest antecedent appears in writings of his colleague Adolf Merkl at the University of Vienna. Merkl was developing a structural research approach for the understanding of law as a matter of the hierarchical relationship of norms, largely on the basis of their being either superior or inferior to each other. Kelsen adapted and assimilated much of Merkl's approach into his own presentation of the Pure Theory of Law in both its original version and its revised version. For Kelsen, the importance of the basic norm was in large measure twofold since it importantly indicated the logical recursion of superior relationships between norms as they led to the norm that ultimately would have no other norm to which it was inferior. Its second feature was that it represented the importance that Kelsen associated with the concept of a fully centralized legal order in contrast to the existence of decentralized forms of government and legal orders.

Responses and interpretations

Neo-Kantian

The second form of the reception of the term originated from the fairly extended attempt to read Kelsen as a Neo-Kantian following his early exchange with Hermann Cohen in 1913 concerning the publication of Kelsen's habilitation dissertation in 1911 on public law. Cohen was a leading Neo-Kantian and Kelsen was, in his own way, receptive to many of the ideas that Cohen had expressed in his published book review of Kelsen's writing. Kelsen had insisted that he had never used this material in the actual writing of his own book, though Cohen's ideas were attractive to him in their own right. This has resulted in one of the longest-running debates within the general Kelsen community as to whether Kelsen became a Neo-Kantian himself after the encounter with Cohen, or whether he managed to keep his own non-Neo-Kantian position intact, which he claimed was the prevailing circumstance when he first wrote his book in 1911.

The Neo-Kantians, when pressing the issue, would lead Kelsen into discussions concerning whether the existence of such a Grundnorm was strictly symbolic or whether it had a concrete foundation. This has led to the further division within this debate concerning the currency of the term Grundnorm as to whether it should be read, on the one hand, as part and parcel of Hans Vaihinger's "as-if" hypothetical construction. On the other hand, to those seeking a practical reading, the Grundnorm corresponded to something directly and concretely comparable to a sovereign nation's federal constitution, under which would be organized all or its regional and local laws, and no law would be recognized as being superior to it.

Symbolic

In different contexts, Kelsen would indicate his preferences in different ways, with some Neo-Kantians asserting that late in life Kelsen would largely abide by the symbolic reading of the term when used in the Neo-Kantian context, and as he has documented. The Neo-Kantian reading of Kelsen can further be subdivided into three subgroups, with each representing their own preferred reading of the meaning of the 'Grundnorm,' which were identifiable as (a) the Marburg Neo-Kantians, (b) the Baden-Baden Neo-Kantians, and (c) his own Kelsenian reading of the Neo-Kantian school with which his writings on this subject are often associated, as found in his response to the Cohen exchange circa 1911-1914.

Hart and others

This has led to criticism from noted authors such as H. L. A. Hart, who refers to the theory as a 'needless duplication' of the 'living reality' of the courts and officials actually identifying the law in accordance with the constitution's rules. It is mystifying to posit a rule beyond these rules, which adds, superfluously in Hart's view, that the constitution is to be obeyed. [1]

Kelsen also attempted to explain international law by the concept of a Grundnorm superior to all the Grundnorms of the state. This theory has been severely criticised by theorists like Hart and Lord Lloyd, though others, such as followers of various schools of the future development of the United Nations, including Grenville Clark and Louis B. Sohn of Harvard, who have strongly endorsed it.

See also

Notes

  1. Hart, p. 246. Hart thinks this is particularly clear where there is no written constitution, as in the United Kingdom, for "here there seems no place for the rule 'that the constitution is to be obeyed' in addition to the rule that certain criteria of validity (e.g. enactment by the Queen in Parliament) are to be used in identifying the law. This is the accepted rule and it is mystifying to speak of a rule that this rule be obeyed."

Related Research Articles

<span class="mw-page-title-main">Jurisprudence</span> Theoretical study of law

Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

<span class="mw-page-title-main">Philosophy of law</span> Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

Legal positivism is a school of thought of philosophy of law and jurisprudence which holds that law is constructed from social facts, without regards to the merits of such law. It was developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. Some of the most prominent legal positivist writers of the 20th century have been Hans Kelsen, H. L. A. Hart, and Joseph Raz.

In moral philosophy, deontological ethics or deontology is the normative ethical theory that the morality of an action should be based on whether that action itself is right or wrong under a series of rules and principles, rather than based on the consequences of the action. It is sometimes described as duty-, obligation-, or rule-based ethics. Deontological ethics is commonly contrasted to consequentialism, utilitarianism, virtue ethics, and pragmatic ethics. In this terminology, action is more important than the consequences.

<span class="mw-page-title-main">Ronald Dworkin</span> American legal philosopher (1931–2013)

Ronald Myles Dworkin was an American legal philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to philosopher H. L. A. Hart.

<span class="mw-page-title-main">H. L. A. Hart</span> English legal philosopher (1907–1992)

Herbert Lionel Adolphus Hart was an English legal philosopher. He was the Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law, which has been hailed as "the most important work of legal philosophy written in the twentieth century". He is considered one of the world's foremost legal philosophers in the twentieth century.

<span class="mw-page-title-main">John Austin (legal philosopher)</span> English legal philosopher (1790–1859)

John Austin was an English legal theorist who posthumously influenced British and American law with an analytical approach to jurisprudence and a theory of legal positivism. Austin opposed traditional approaches of "natural law", arguing against any need for connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.

<span class="mw-page-title-main">Neo-Kantianism</span> Revival of Immanuel Kants philosophy

In late modern continental philosophy, neo-Kantianism was a revival of the 18th-century philosophy of Immanuel Kant. The neo-Kantians sought to develop and clarify Kant's theories, particularly his concept of the thing-in-itself and his moral philosophy.

<span class="mw-page-title-main">Hans Kelsen</span> Austrian jurist and legal philosopher (1881–1973)

Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the principal architect of the 1920 Austrian Constitution, which with amendments is still in operation. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced out of his university post after the Nazi seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and in 1940 he moved to the United States. In 1934, Roscoe Pound lauded Kelsen as "undoubtedly the leading jurist of the time". While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on social psychology and sociology.

Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as Reine Rechtslehre, and in 1960 in a much revised and expanded edition. The latter was translated into English in 1967 as Pure Theory of Law. The title is the name of his general theory of law, Reine Rechtslehre.

<i>The Concept of Law</i> 1961 book by H. L. A. Hart

The Concept of Law is a 1961 book by the legal philosopher H. L. A. Hart and his most famous work. The Concept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and morality—within the framework of analytic philosophy. Hart sought to provide a theory of descriptive sociology and analytical jurisprudence. The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are rules, and the relation between law and morality. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".

<span class="mw-page-title-main">Antipositivism</span> Theoretical stance in social science

In social science, antipositivism is a theoretical stance which proposes that the social realm cannot be studied with the methods of investigation utilized within the natural sciences, and that investigation of the social realm requires a different epistemology. Fundamental to that antipositivist epistemology is the belief that the concepts and language researchers use in their research shape their perceptions of the social world they are investigating and seeking to define.

In political science, constitutional autochthony is the process of asserting constitutional nationalism from an external legal or political power. The source of autochthony is the Greek word αὐτόχθων translated as springing from the land. It usually means the assertion of not just the concept of autonomy, but also the concept that the constitution derives from their own native traditions. The autochthony, or home grown nature of constitutions, give them authenticity and effectiveness. It was important in the making and revising of the constitutions of Bangladesh, India, Pakistan, Ghana, South Africa, Sierra Leone, Zambia and many other members of the British Commonwealth.

<span class="mw-page-title-main">Kantian ethics</span> Ethical theory of Immanuel Kant

Kantian ethics refers to a deontological ethical theory developed by German philosopher Immanuel Kant that is based on the notion that "I ought never to act except in such a way that I could also will that my maxim should become a universal law.” It is also associated with the idea that “[i]t is impossible to think of anything at all in the world, or indeed even beyond it, that could be considered good without limitation except a good will." The theory was developed in the context of Enlightenment rationalism. It states that an action can only be moral if it is motivated by a sense of duty, and its maxim may be rationally willed a universal, objective law.

<span class="mw-page-title-main">Evgeny Pashukanis</span>

Evgeny Bronislavovich Pashukanis was a Soviet and Lithuanian legal scholar, best known for his work The General Theory of Law and Marxism.

This is an index of articles in jurisprudence.

A Theory of Legal Order is a book of the Italian jurist Norberto Bobbio about one of the ontological elements of foundations of law — the juridical order.

Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu, [1966] 1 EA 514, is a decision of the High Court of Uganda in which Hans Kelsen's "General Theory on Law and State" and the Political Question Doctrine were considered in determining the legal validity of Uganda's 1966 Constitution. The 1966 Constitution had come into place following what was by and large, a coup d'état executed by Apollo Milton Obote when he seized all powers of government and suspended Uganda's 1962 Independence Constitution, eventually leading to its abolition.

A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authorities issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide by, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, which regulates the conduct of people, and generality, which is binding on an indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding on them, such as soldiers and public officials.

<span class="mw-page-title-main">Alfred Verdross</span> Austrian lawyer and judge (1890–1980)

Alfred Verdross or Verdroß or Verdroß-Droßberg was an Austrian international lawyer and judge at the European Court of Human Rights.

References