GRUNDNORM-SEARCH FOR ITS CONTENT AND NORMS

 INTRODUCTION:-

                       Kelsen is thus interested in developing a theory of law as an "ought," as a "science of mind." But he also wants to free his "science of law" from methodological dependence on other "sciences of mind." Thus, in the first page of his most famous book, The Pure Theory of Law (1934), he says:

"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 [Raisonnement], to the level of a genuine science, a science of mind”.

              Before going on to explain him further, however, the question should be posed. Why? Why does one want to develop a theory of law that is "purified" of all political ideology? Certainly he is indebted to Kant at this point, whose Critique of Pure Reason tried to do the same for the human rational faculty, but is this basic move that he makes helpful to those who study jurisprudence in the 21st century?

I, for one, have taught this class from the perspective that law is a subset of intellectual culture and that in order to understand legal developments, one must understand them in the context of larger philosophical and social movements of the culture. Just as Langdell was trying to raise law to the level of a "science" or "profession" in late 19th century America, I think that Kelsen is trying to "rescue law" from its being just an adjunct of historical or descriptive study. As Stewart says, "The pure theory of law undertakes to delimit the cognition of law against these disciplines, not because it ingores or denies the connection, but because it wishes to avoid the uncritical mixture of methodologically different disciplines which obscures the essence of the science of law." At this point, we are starting to descend deeply into the arcana of German philosophical thought, and so we need to beat a hasty retreat!

THEORY INTRODUCED ABOUT THE NORM:-

      As a "science of mind," therefore, law seeks the realm of the "ought." Kelsen is interested in a basic principle or norm, a basic "ough," that will actually be both descriptive and prescriptive for legal discourse. The word "norm" can mean two things: either descriptive regularity ("You fit the norm") or prescriptiveness ("You must obey the social norms") [I guess there is a third meaning--the fat guy on Cheers]. Kelsen will use the word "norm" in the prescriptive sense. When he uses the word "normative," he means something that is prescriptive, something that ought to be done.

What Kelsen is trying to do in developing or identifying a basic norm is quite ambitious. In the tradition of Hegelian philosophy, which wanted to place all cultures in a grand overarching philosophy of history according to the principle of freedom, Kelsen wants to identify a basic legal principle which will ultimately include or define the legal structures of all cultures. The Grundnorm or Basic Norm is a statement against which all other duty statements can, ultimately, be validated.

In this regard, I think that Bix's description of the Basic Norm (pp. 56-58) is excellent. The Basic Norm is ultimately a sort of act of faith--it is the belief in a principle beyond which one cannot go and which ends up being the foundational principle for all subsequent legal statements. You cannot "go beyond" the Grundnorm because it is an unprovable first step (sort of like the "democracy is best because it is democracy" approach of 1930s-1950s American jurisprudence). Ultimately it appears that the Grundnorm for Kelsen is a belief that one's respective legal system ought to be complied with. Lots of other principles can then flow from this basic realization.

A question can be raised whether from the juridical perspective, . within  the juridical sphere, the decision of a Constitutional Court can be illegitimate, when  it is not juridically challengeable.

        In fact, even if such a decision is criticised by  some (or many) as contrary to the constitution, if it is effective, it can hardly be  qualified as a coup d’État under the definition, i.e. signalling a change in the  authority basis of the constitution. Instead, from a structural perspective, given the  priority of the dynamic over the static profile, the constitution, (or to follow Stone’s  wording, the Grundnorm), had authorized the Constitutional Court’s assessments and interpretation to prevail over those of anyone else. This means that no change

in the constitution took place. Of course, this structural feature is coupled, as a matter of fact, with the further  recognition that “conformity” cannot be discerned as an epistemic reality, because it is itself an authoritative creation, authorized only to delegated organs (and so unauthorized to others). It is perhaps of the same kind as ordinary judges’ acts of will, in Kelsen’s terms. In this hypothesis, it is exactly within the juridical realm that the change does not register. Admittedly it may be there, however, according to perspectives different from that of the legal order.

The CONSTITUTION AND NORMATIVE HIERARCHIES:-

Kelsen’s constitutional theory remains a standard, scholarly reference point for contemporary debates about the legitimacy of review, and thus deserves brief discussion.

Kelsen focused on the problem of determining legal validity, that is, on the issue of how legal rules and public acts are to be invested with normativity, their formal authority as binding law, enforceable through sanctioned state power. Simplifying, Kelsen viewed a system based

on legislative sovereignty as logically incomplete, and indeed unstable, and sought to ground the legality of state action more formally in a supra- legislative body of rules, a Grundnorm. He argued that any given act could only be considered valid, or normative, if it is enabled by, and does not conflict with, a specific – and formally superior – legal rule. Furthermore, all legal rules, in order to confer validity on lower order rules, must be capable of being enforced by a judge or ‘jurisdiction’.

                The move to higher law constitutionalism and constitutional review established closed, self-referential, hierarchically ordered, systems of norms. The validity of every legal rule depends upon the validity of another, higher order, legal rule; and the hierarchy of norms itself depends, for its own systemic validity, on the constitution, as  Grundnorm. A ministerial decree or a police action taken in pursuance of a statute must respect the terms of that statute or be invalid, as controlled by legally designated judicial authority; and the statute itself must conform to constitutional dictates or be invalid, as controlled by constitutional judges. The legality of any norm (which reduces to constitutional legality), and the legitimacy of the legal system, are virtually one and the same thing That is, the constitutional law, as validated by the sovereign people, comprises both a source of law, in and of itself, and the ultimate source of legitimacy for allother legal norms.

Kelsen’s model of the juridical state can easily be translated into the language of delegation theory. The distinguishing feature of P–A models is that they link, as in a chain, authoritative acts of delegation from one constitutionally recognised authority to another. In Europe and North

America, these acts typically take a highly legalistic form. The sovereign people (first-order principals) ratify a constitution, which delegates power to governmental bodies, like legislatures and courts.

The statute is the normative instrument through which governments and legislatures (agents

of the electorate, but second-order principals vis-à-vis ordinary judges and administrators) delegate certain specific responsibilities and powers to the courts and the administration. Principals can therefore be identified by virtue of the constitutional authority they possess to delegate powers through a specific type of normative instrument. Agents are constituted, and

their activities mandated or circumscribed, through these acts of law making. In this system, the ultimate source of authority (and of the legitimacy of all delegated powers), is the constitution, which is assumed to express the will of the sovereign people. And the normativity of the

constitution is guaranteed through the delegation of constitutional review powers to constitutional judges.

                     The main thing is that two observation might be made on all this. In the first place, keelson in his early writing expressed this distinction rather misleafings. He said in one place :

          The law of nature runs: if A is,then b must be. The legal rules says. If a is then          b ought be….it is evident that this connection is not that of cause and effect. Punishment does not follow upon a delict as effect upon a cause. The legislation relates the two circumstances in a fashion wholly different from causality. Wholly different, yet connection as unshakable as causality. For in the legal system the punishment follows always and invariable on the delict even when in fact, for some reason or other, It fails of execution. Even though it does not so fail, It does not stand to the delict in therelation of effect to cause.

This kind of expression is misleading and may induce others to so less than justice to his thesis. In more recent works he distinguished between casualty and imputation without the disturbing touches as above. ‘Under certain condtions’ he said later a certain consequence ought to take place. This is the grammatical form of the principle of imputation.

A second sources of misunderstanding is more important. Legal norms are expression of ‘ought’s’ the sense in which this is so will shortly be explained. Such ‘ought’ is in form, If X happens,then Y ought to happens,then Y ought to happen;value oughts shape the content of legal propostions, whether or not they are desirable, and with these keelson was not concerned. He did not deny that there are such oughts apart from the formal ‘oughts’ of the law.

There are several feature about the Grundnorms deserving of attention. In the first place, in what sense place,in what sense is the grundnorms a norms? It does not conform to kelsen’s ownformulation of a norms; If X, then Y ought to happen’; it only empowers and does not impose sanctions. Next, according to Kelsen every rule of law derives its validity from some other rule standing behind it. The Grundnorm has no rule behind it.

       Its validity has therefore to be assumed for the purose of the theory , which is why it is said to be the ‘intial hypothesis’,’ the postulated ultimate rule according to which the norms of this order are established and annulled,receive or lose their validity’. Put in another rule of law. The Grundnorms validates the rest of the legal sustem; one cannot therefore utilize the system, or any part of it,to validate the Grundnorm. As one wrtier put it,such an attempt would be like trying to pick oneself up by one’s bootlaces. This point has already been considered from another angle.namely,in conncetion with statute and judicial precedent, where the impossibility of finding a reason in law why these should be able to impart the quality of English law’ was demonstrated.

Keelson distinction between validity and effectiveness has only been touched upon. Every norm other than the Grundnorm is valid, not because it is or likely to be, obeyed by those to whom it is addressed ,but by virtue of another norm imparting validity to it. Thus a norm is valid before it is effective,as is the case with  a new statute before it has been applied. Yet, the validity of each norm does depend on the effectiveness of the legal order as a whole. In kelson’s own words,

‘ it cant be maintained that, legally, men have to behave in conformity with a certain norm, if the total legal order , of which that norms is an integral part, has lost is efficacy. The principal of legitimacy is restricted by the principle of effectiveness.

He later modified this somewhat to the extent of saying than the legal order has to be ‘by and large’ effective.

Thus Grundnorm is the key concept in kelson’s theory but it raises many difficulties. The changes effected in the British Grunnorm in 1689 amounted, according to his thesis , to a revolution in the system, but why did it remain the ‘same system’? keelson would probably have denied that it is same;which is not the way lawyers and jurists actually regard the position. It be illustrated in another way.

CRITICISM:-    

               Some jurist have authorized with a hint of criticism, that in whatever way effectiveness of the Grundnorm is measured, kelsen’s theory has creased to be ‘pure’ at this point. For ,effectiveness would seem to depend on those very sociological factors which  he so vehemently excluded from his theory of law. If then Grundnorm upon which the validity of all other norms depends is tainted   with impurity, it is arguable that the others are similarly tainted. Another attack on the claim  to purity is that kelsen’s scheme is an a priori one dependent on empirical observation for confirmation. He offered it as a ‘theory of interpretation’, which implies that it is not a description but a model and thus evaluation in function. The criticisem touches, not the theory , but his claim to its purity. He admits that the Grundnorms is founded on factors outside the law. That being the case, whether his theory is said to be pure only from the Grundnorms onwards, or partially pure because of its initial impurity, is not very material. The fact is, as the word of kelsen indicate , that the effectiveness of the legal order as a whole is prerequisite to the validity of each single rule in it.

                       It might also be pointed out that Kelsen’s picture is that of a legal order viewed at any given moment of time showing how the validity of every norm is derived  from a Grundnorm. This explain his exclusion of moral, every norm is derived from a Grundnorm. This explains his exclusive of moral, sociology and other considered from the question of the validity of any rule at this or other considerations from the question of the validity of any rule at this or that moment. Yet, he could not avoid having to make some measure of effectiveness a decisive attribute of the Grundnorm and of the legal order as a whole.

Keelson gave no criteria by which the minimum of effectiveness is to be measured. All he maintained was that the Grundnorm imparts validity as long as the ‘total legal order’ remain effective, or , as he later put it, ‘by and large’ effective.

            The RHODESIAN CASE Madzimbamuto v. Lardner-Burke[1],exposes the weakness here,for as one judge pointed out,an effective order cannot be said totally or even by and large, effective as long as its judiciary did for over two years after the illegal declaration of independence by smith resime. Secondly for how long must effectiveness be maintain for the requirement to be satisfied?

In the state v dosso[2], the supreme court of Pakistan had held a usurper ot be effectively in power and hence lawful in kelsenean grounds. Later in Jilani v. Government of Punjab[3] the supreme court declared both the first and second usurper illegal,repudiated Kelsen in toto and overruled dosso, which relied on him soheavily and because of which ,as one judge quoted approvingly ‘a perfectly good country was made into a laughing stock.[4]

                    In the result it would seem that kelsen’s theory does not apply in revolutionary situation, in which case it ceases to be a ‘general theory’; or ‘if general, it ceased to be true. In settled condition, where guidance is needed, it is useless, for the choice of a grundnorm is not dictated inflexible by effectiveness but is a political decision, as kelsen has admitted.[5]

            It is not clear what is connoted by the description of the Grundnorm as a hypothesis or postulate or presupposed. There is no analogy here, be it noted with scientific hypotheses may be equally apt to explain the phenomena in question.[6] But there is no room for alterative Grundnorm, as postulate of a given legal system. There must be only one Grundnorm, which is supreme and uncontradicted; otherwise there can be no unified theory.

      Kelsen argued instead for a monist view of the relationship between international and municipal law, and declared that the Grundnorm of the international and municipal law, and declared that the grundnorm of the international system postulates the primary of international and municipal law, and declared that the grundnorm of the international law.

He also maintained that a legal norm is distinguished from the norms of morality, ethics and the likein that it is backed by force. In the international sphere he found the element of force in war and reprisals.

This is questionable. The first thing is that all theory requires, is the grndorm of the international order. This is by no means clear, this may be pacta sunt survendanda, and that is why STONE has criticized and commented:

                       It is difficult to see what the pure theory of law can contribute to a system which it assumes to be law,but which it derives from a basic norm which it cannot find.

 It is not easy to accept a monist theory of the primacy of international over municipal law in the face of the conflict between the two. kelsen’s general thery does allow it is true, for limited conflicts with in a given order,but also those between international and municipal law are to ignore.

It was also pointed out that their recognition at international law is irrelivent to their legality at municipal law, the validity of the new government is governed by the law of state said the chief justice.[7]

Logically kelsen should have been led to denythe characterthe connotation and function of the word ‘law’ as applied to international amd municipal legal orders, it is questionable whether the attempt to construct a unifying theory is feasible.

CONCLUSION: -

                                      Not with thestanding the logical coherence of kelsen’s structure, he provided no guidance in the actual application of law. Thus, he showed how, in the process of concretising the genral norms it may be necessary to make a choice either in decision or interpretation. The judge or the official concerned is always aware of that necessary ;his need is for some guidance as to how he should make his choice. The answer is not found in the kelsen techniques , but in value consideration of one sorts of another,which kelsen seduloudly eschewed.[8]

    Another more serious aspect is that a legal order is not merely the sum total of laws,but include doctrines,principles and standard,all of which are accepted as ‘legal’ and which operate by influencing the application of rules.[9]

Finally kelsen has been hailed as having provided the outstanding theory of the 20th century from a positivist point of view,it has to rememberd that bentham’s of laws in general only saw daylight after kelsen had made his contribution.