Grundnorm of Kelsen

Kelsen’s theory of Grundnorm or Pure theory of law is not a balanced view of law because it only focused on the coerciveness of legal norm. Hart’s theory is more convincing than him because Hart focuses on both soft & hard positivism. Raz’s criticism of Kelsen is very meaningful because he pointed out that which Kelsen lacks about the authority that denotes the concept oughtness.

Pure Theory of Law:- Grundnorm is a German work which basically means foundation of norm or basic norm. This denotes as the ultimate norm that confer validity upon norms. Pure Theory means that description of law is different from what the law to be, even though it has an ought proposition with it. The pure theory recommends that all positive law should be viewed as a system of norms stipulating that, under certain conditions. Norms are generally action-directing means duty imposing by power or permission. This is different than moral norms which are the subjective preferences for behaviour.

Sanctions by Officials:- Kelsen said that there were two things universally true of law: firstly, that it was coercive, and secondly, that it was a system of norms. For a legal norm to be described as ‘valid’ it must be a member of a system. According to Kelsen, moral judgments are irrational. He also says that Fact cannot gather norm. Legal norms are coercion by systematic use of sanctions, applied by agents or officials. Unique about law is coercion & offialdom. Kelsen introduced another German idea that is Delicto which means in the act of committing an offence, officials can impose sanction which is not immoral. According to Kelsen, secondary norms are as genuine as primary norm, for example, sanctions by officials.

The mythology & obscurity in Kelsen:- It says that the Transcendental-Logical condition of this normative interpretation, does not perform an ethical-political but it do perform an epistemological function. According to Kelsen, Transcendental means outside and independent from experience of facts with which we cannot agree because if any law is outside than facts, then that would be unrealistic. He describes Normativity as a matter of rules. Performing an ethical-political function means for Kelsen that it is making an evaluative statement of morality or politics. So, the Epistemological means making clear how we can know something.

Neo-Kantian Basic-Norm:- Paulson and Harris described Grundnorm as transcendental presupposition which has three ingredients, are as follows:

• Firstly, we form knowledge of valid legal norms which has objective normative force. Objective normative force means laws deriving from oughtness.
• Secondly, for this to be possible, we must presuppose the category of the basic norm.
• Thirdly, because we must presuppose it, then the basic norm is true.

Criticism of Kelsen:- The unity of Kelsen’s theory says that Kelsen was wrong that all laws are directed to officials, who are required to apply sanctions. For example, international laws are normative in nature. International laws are like contractual laws. It’s terms & conditions are binding and the parties are binding themselves. So, it is not always true that we need officials who can apply sanctions which can make laws as law. The most possible redundancy of the Grundnorm is as Austin’s theory says that it wrongly derived that oughts of law from the fact of habitual obedience to a sovereign. The oughtness or normativity of law is bound up in the idea of the basic norm.

Hart Convincing than Kelsen:- Hart’s theory is more convincing than Kelsen because Kelsen only focused on law which are sanctioned by officials. According to Hart, the social practice or the rule of recognition is the normative order which is independent from morality & fact. Kelsen’s basic norm is not identified as a matter of fact but is, rather, a presupposition that certain rules are valid, presupposes laws to be valid. Kelsen ignored the rule of recognition’s factual existence as a test of validity. There are two general principles required to be understand to know Kelsen:

• Firstly, the basic norm is that coercive acts ought to be done by officials, in accordance with the historically first constitution. It is not the fact of the first constitution, the constitution itself is the basic norm, because the constitution is a fact, not a norm. Rather, the basic norm is: acts ought to be done in accordance with the constitution. If constitution is a fact & not a norm, then it cannot bind every laws of any country. Facts are not binding. Facts give raise the question of morality and that give raise to natural and ultimately positive law. Constitution upholds the rights of people or citizens of any country. It is a positive law itself derived from natural laws which depend solely on oughtness or morality. Kelsen’s view cannot be supported here because neither constitution is a fact nor laws are coercive in nature. For example, distributive justice, family laws, contract laws. In all these branch of laws we cannot show the coercive nature of law as Kelsen described it.
• Secondly, Effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition. Indeed, effectiveness is a necessary condition and also it is not sufficient. Here, we cannot disagree with Kelsen at all.

Criticism by Raz:- Raz is also believes in authority, but his view is more preferable than Kelsen. According to Raz norms are a fixed standard against which human behaviour or other events are assessed. Raz’s famous normal justification thesis says that an authority is legitimate means the subjects of the authority are justified in its guidance, and an authority is justified in issuing directives to guide the behaviour of those subject to it, when those subjects are more likely to comply with the reasons that ought to govern their behaviour if they follow the directives of the authority than if they were to try themselves to follow those reasons directly. Law can be coercive with reason and reason is morality. Furthermore, Raz states that Parochial concepts are concepts which cannot be mastered by all, not even by everyone capable of knowledge. ‘Non-parochial’ concepts can be mastered by anyone capable of knowing anything at all. The acquisition of certain parochial concepts will depend upon having certain perceptual capabilities, but our chief concern here are parochial evaluative concepts, and the way in which access to certain evaluative concepts may depend upon one’s living in cultural circumstances which create, sustain, or provide access to certain values. To the extent that one’s exposure to these values is contingent in the sense that they depend upon one’s being in or sufficiently related to a particular culture, the concepts of those values are parochial. Kelsen speaks about Grundnorm which is not universal, but true for his community.

Conclusion:- We can conclude that Kelsen’s pure theory of law is not a balanced view of what law is or what it ought to be because it speaks about some wings of law which are coercive in nature, but those laws can never treated as laws if they lack morality or reason in it.

References:-

• Rights, culture and the law: themes from the legal and political philosophy of Joseph Raz by J.E. Penner in L.H. Meyer, S. Paulson and T. Pogge (eds);
• Legal philosophies by J.W. Harris;
• Utilitarianism and The Economic Analysis of Law by J. Harris.