GERMAN LEGAL POSITIVISMKELSEN’S PURE THEORY OF LAW

JURISPRUDENCE LAW4420

Sources of Inspiration

British legal positivism - empiricism.Empiricist legal theorists reject metaphysical or mystical explanations of law.Assert that law exists as social fact and nothing more.

Germanic legal positivism - transcendental idealism of the German philosopher Immanuel Kant (1724-1804).

British legal positivists regard law as fact distinct from morals.LAW + FACT - MORAL

Germanic legal positivists seek to separate law from both fact and morals.

LAW – FACT & MORAL

Unlike Hart, Hans Kelsen (1881-1973) was interested in providing a general theory of law, that is, one not tied to any particular legal system.

He aimed to ‘discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples'.

This requires PURE THEORY of law!

WHY PURE THEORY OF LAW?

In order to discover the essence of law — what distinguishes law from other social phenomena — one has to exclude all extraneous and non-legal elements, such as moral, sociological, psychological and political factors.

Kelsen - moral and political factors are extraneous to an account of law.

What is right and wrong is a subjective matter. Value judgments are based on 'emotional factors' and therefore cannot be verified by facts.

Law, by contrast, is an objective matter and therefore susceptible to 'scientific' study.

It would contaminate the legal scientist's detached, objective descriptions of the subject matter if subjective moral tests were to be used in identifying law.

Hence moral considerations cannot contribute to determining what the law is (as opposed to determining what it ought to be).

Law, Morality, Society and History

However, Kelsen did not say that law should not be studied in its moral, social and historical context. He claimed only that such study does not amount to legal science, which is the study of how people ought to behave according to positive law — according to the law as we find it, rather than the law as we would like it to be.

Special quality of Legal Science - normativity

Legal science is different from sociological and psychological accounts of law.

The latter do not account for law's normativity.

They describe the phenomena of law 'in propositions that tell how people actually behave.

But the science of law 'describes the phenomena of law in propositions that state how people should behave‘.

The Key Elements of Kelsen’s Theory

Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact.

A norm, unlike a fact, is not about what there is but about what ought to be done or not done.

Whereas facts exist in the physical world, norms exist in the world of ideas/thoughts.

Facts are caused by other facts.

Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught). The norm that the thief ought to be punished exists because another norm says so.

Not all norms are laws. There are also moral norms. Legal norms are coercive; morals norms are not.

A legal norm has the quality of ‘validity’. A legal norm is valid if it is endowed with validity by another norm.

Whereas physical things arise from causation, legal norms arise from validation by another valid norm.

A norm that confers validity upon another norm owes its own validity to another norm, and so on. This regression cannot go on infinitely. Kelsen conceived the idea of a basic norm (Grundnorm), a kind of First cause of the legal system beyond which we cannot speculate in a legal sense.

The basic norm is presupposed.

A legal norm exists because of a chain of validity that links it ultimately to the basic norm.

The legal system is a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.

Note:Philosophical foundation of pure theory - transcendental idealism.Basic claim - purity of the pure theory can be understood only through this mode of thought.

(The term ‘idealism’ is used here in the philosophical sense and not in the more commonplace sense of commitment to ideals).

From transcendental idealism to the pure theory of lawTranscendental idealism - the epistemological foundation of Kelsen’s ‘pure theory of law’. It presents law not as a fact but as NORMS that exist in the realm of ideas.

Facts are about what there is, whereas norms are propositions as to what ought to be done or not done.

Kelsen said of his theory: ‘It is called “pure” theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements.’

Specifically, Kelsen claimed that his theory is pure on two counts.

First it distinguishes law from fact. Second, it distinguishes law from morals.

Kant’s thoughts provided inspiration on both counts.

The world of things (noumena) and the world of ideas (phenomena); and What is (sein) and that ought to be done or not done (sollen).

Immanuel Kant (1724-1804)

Knowledge is not independent of the human mind, but is partly constructed by it.

In particular, categories and concepts like time, space and causality do not inhere in reality but are imposed by us on the world as a means of understanding it.

Kelsen applied this analysis to the phenomenon of law, saying that the 'science' of law is a way of making sense of legal reality.

'Science', here, does not mean 'natural science'. It does not, in other words, mean the science which is concerned with evidence and causality.

For Kelsen, the science of law aims to expose the logical structure of legal systems or the categories which must be imposed on the phenomenon of law in order to understand it - such a category is ‘NORM’.

Kelsen application of the Kantian distinctions: LAW AS NORM

The physical acts that give rise to law (passing of a statute, delivery of a judgment etc) belong 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.

ExampleA group of persons assemble in a building called the Parliament House and engage in a debate about a document called the Terrorism Bill, which states that a person who commits an act of terrorism shall be punished by life imprisonment. (This actually means that terrorists ought to be punished, as the Act cannot guarantee that they will be caught and punished.) At the end of the debate there is a vote and a majority of the assembled group approve the Bill. The document is then certified as an Act of Parliament.

So far what we have observed is not the law but a series of facts.

The question for the legal scientist is whether these facts can be interpreted as giving rise to the norm that acts of terrorism ought to be punished with life imprisonment.

What creates the norm is not Parliament's say-so.

But ANOTHER NORM that states that the will of Parliament expressed in a particular way ought to be obeyed.

The Nature of Norm

Kelsen - 'Norm is the meaning of an act by which a certain behaviour is commanded, permitted or authorized' (1967, 5).

NORM – BEHAVIOUR – COMMAND/PERMISSION/AUTHORIZATION

FORMS of NORM:A norm may take the form of a rule or a specific command.

(Cf Austin and Hart)

Kelsen's theory removes the distinction between rules and orders. A norm need not supply a rule of conduct that can be known beforehand - a necessary condition for achieving the rule of law.

Note:

Not every expression of will directed to a person is a norm.

Example: An armed robber's demand that I hand over money is not a norm, whereas a tax collector's demand of money is a norm. This is despite the subjective meaning of the two acts being similar. Each wills/intends that I hand over money.

But only the latter demand has objective meaning in Kelsen's sense.

It is objective because an antecedent or prior valid norm authorized the demand.

Thus a norm is an 'ought' proposition that is objectively recognized.

Example:I may state in writing that in the event of my death my wife and child ought to be given all my property. This is an expression of my subjective will. It does not oblige anyone else to respect my wishes unless it is also objectively regarded by the community as binding. That is, others have cause to recognize my will as binding on them. For instance, if my writing is not witnessed as the law requires, my intent is not binding on others.

Further explanation:

A natural scientist observes a physical event and concludes that another physical event will occur. A legal scientist observes a physical event and concludes that another physical event ought to occur. The natural scientist is directed to this scientific conclusion by a scientific law. The legal scientist is directed to this normative conclusion by another norm. “Imputation”

Kelsen used the term 'imputation' to signify the effect of a norm. We speak of causation in relation to the natural world. One physical event causes another event. Norms are not material things and one norm cannot cause another. A norm creates a duty to behave in a certain way by imputing a sanction to the breach of that duty (Kelsen 1967, 81).

Commands, authorizations and permissions We typically associate the law with commands to do or not do something.

But for Kelsen, there is no norm where there is no 'ought'.

Yet many laws at first sight seem to lack an 'ought‘?• An Act of Parliament authorises (but does not compel) the minister to make regulations.• My driving licence permits (but does not compel) me to drive my car on public roads. • The Social Security Act grants me the right to receive a pension if I am unemployed or

disabled but does not compel me to do anything.

How do we explain these laws as norms? Reversed effect of norm?

According to Kelsen, each of these laws has normative force. Such laws, in effect, say that people ought to 'endure' the actions of another person.

o The law under which I hold my driving licence means that people (including the police) ought to respect (endure) my liberty to drive.

o The law that authorises the minister to make traffic regulations means that the minister's regulations ought to be obeyed.

o The law that entitles me to a pension means that some official ought to pay me a sum of money.

Legislation, legal norm and statement of the law

Legislation, judicial precedent or custom - this is a fact

The legal norm - this is the 'ought' proposition that results from the· interpretation of the legislation, precedent or custom

The statement of the rule of law – this is a command.

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.

Act of Parliament A person convicted of murder shall be sentenced to life imprisonment 

Legal norm The court ought to sentence a person convicted of murder to life imprisonment

Morally committed statement of the law

Persons who commit murder are rightly sentenced to life imprisonment  

Detached statement of the law It is the law in England that a person convicted of murder is liable to be sentenced to life imprisonment 

Distinguishing Legal and Moral Norms

1. Legal order as a coercive order Like other legal positivists, Kelsen 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.

Example: 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.

See examples on the vegetarian claim and objection to cruelty to animals.

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.

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. Positive moral rules are also established by custom, or by the will of a moral authority such as a divine being, a prophet or a church.

by the methods of their application. Moral systems lack the kind of specialised enforcement agencies(courts, police etc) that we associate with legal systems.

The Role of Coercion

How does Kelsen explain primitive legal systems lacking in specialized enforcement organs? How can we distinguish legal from moral norms in such a situation?

Such means of coercion may exist (as in primitive societies) without specialised agencies such as courts and governments.

A law may exist even if no coercion is in fact applied. The thief may not get caught, or if caught and tried may be acquitted for want of evidence or because of judicial error.

The moral norm states: 'A person ought not to commit theft'. The legal norm states: 'If a person commits theft, they ought to be punished'. As the legal norm, like the moral norm, is not a statement of fact, it does not assure that what ought to happen will in fact happen.

We should not confuse Kelsen's theory about the role sanctions play in law with Austin's theory.

For Austin, legal obligations should be understood as predictions of the likelihood of being punished: law is what is enforced by coercion.

For Kelsen, by contrast, legal statements convey information about the sanctions which officials (legally) ought to apply.

For instance, the statement 'X is under a legal obligation to do Y' means `if X fails to do Y, the law stipulates that coercion ought to be applied to X.' The statement does not predict the application of a sanction and remains true regardless of whether the sanction is or is not applied.

Criticism

At the same time, Kelsen's and Austin's views are similar in one respect, namely, that both think that coercion is law's distinctive function, and Kelsen's views 'consequently suffer from the same defect that Hart identified in Austin's —the dogmatic attempt to reduce the complex phenomenon of law to just one element.

The price of such 'spurious uniformity' is, according to Hart, distortion of the subject matter. In particular, it conceals the fact that different kinds of laws serve different functions – such as facilitative and power conferring laws, say in disposing of our property on death.

Hart concedes that, with sufficient ingenuity, legal rules which confer powers on us, such as rules which empower us to make a will, can be rewritten in Kelsen's format as conditional ought-statements. Thus the rule that states that two witnesses are required for the making of a valid will can be seen as a mere fragment of a more complete rule, stating: ‘If there has been a will witnessed by two witnesses, and signed by the testator, and if the executor has not given effect to the provisions of the will, then the court ought to apply sanctions to the executor.‘

But the trouble with this, as Hart points out, is that we do not really understand the nature of rules which confer powers on individuals, such as the power to make a will, if we leave out the perspective of those whom they empower. Such power-conferring rules are extremely valuable to us, and they therefore appear to us as `an additional element introduced by the law into social life over and above that of coercive control. Kelsen's analysis of legal norms as authorizations to officials to impose sanctions therefore conceals the distinctive nature and function of the different kinds of rules which go to make up a legal system.

Legal order is a dynamic order Whereas moral order may be static or dynamic, legal order is always dynamic.

Legal order is dynamic in the sense that the content of its norms is variable depending on the will of the norm creating authority.

In contrast, the content of the norms of a static order is in a sense predetermined as they derive from the content of a higher norm. The lower norms are subsumed by the higher norm. This is the case with some moral systems.

It is important to notice that not all moral systems are static in the sense just described. Kelsen's point is that legal order, unlike moral order, is always dynamic in the sense that the content of its norms is not predetermined. The norm creating authority determines what norms to create and with what content within the limits of their jurisdiction.

Kelsen's Hierarchy of Norms

How does Kelsen explain

the source of the validity of positive legal norms — legal norms laid down by human beings — and

what confers unity on a legal system?

Kelsen - 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.

Kelsen writes:

`Valid norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common

source for the validity of all norms that belong to the same order — it is their common reason of validity‘.

Consider the following situation.

Suppose you find a parking [summons] ticket on your car and you want to know if you are obliged to pay the fine. Does the law objectively require you to pay the fine? The answer to this question depends on whether you parked unlawfully. That will depend in the first instance on whether the local authority has made relevant regulations. But that is just the beginning of the inquiry. 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 with respect to parking. 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, either because the statute is not in breach of any limits on its legislative power or because its legislative power is unlimited. 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 but arose either as a result of a revolution (that is, in a manner not consistent with the constitution valid until that point) or as a result of a grant of independence to a former colony. The historically first constitution in the case of England would be the settlement which followed the Glorious Revolution of 1688.

If we now ask why this 'historically first constitution' is valid we cannot trace its validity to a positive or created legal norm. Instead, according to Kelsen, we have to postulate a basic norm or `grundnorm' — a non positive norm which authorises the creation of all legal norms, including that of the historically first constitution, and which provides that ‘[c]oercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe‘.

In short, the grundnorm provides that one ought to behave as the historically first constitution prescribes. When we reach the grundnorm we have, according to Kelsen, reached a point at which the enterprise of justifying legal statements must stop.

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 authorised 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.

By contrast, 'no basic norm is presupposed according to which one ought to behave in conformity with [the gangster's] order‘.

However, Kelsen does not identify legal validity with moral validity: it is not the justifiability of the official's demands which distinguishes them from the gangster's but the fact that they have been created in a way which is authorised by the grundnorm.

To say that a legal norm is valid is merely to say that it exists within the legal system.

“Concretisation”

The chain of authorisation can also be followed in the other top-bottom direction: from the abstraction of the grundnorm down to an actual decision or legal action.

Kelsen calls this a process of `concretisation‘ – where at each point down the chain the norms become more specific and concrete.

At the end-point we reach a norm authorising force in the particular set of circumstances which define the case at hand — for instance, a judge's order that a particular defendant should pay damages of a certain amount to a particular plaintiff, an order which will be backed up by the threat of seizure of the defendant's property should the defendant not pay what he or she owes.

Comparing Hart and Kelsen

Both Hart's rule of recognition and Kelsen's grundnorm are ultimate norms – in that there is no more fundamental norm from which they derive their legal authority and therefore no legal justification for them.

Important difference between their views.

Hart insists that the rule of recognition is identifiable empirically by reference to social facts — namely, the practice of the courts in identifying what counts as law.

Kelsen conceptualised the grundnorm as a theoretical idea or hypothesis we have to make if 'we want to interpret the acts performed according to the historically first constitution as the creation or application of valid general legal norms‘.

This difference can be explained in part by the different influences on their thought. Hart was influenced by Bentham and Austin's social realism, and especially by their emphasis on law as a social construct.

Kelsen was under the influence of Kantian philosophy.

The “Grundnorm”

According to Kelsen, the science of law has to hypothesise the concept of the grundnorm in order to make sense of the fact that we describe conduct as legal or illegal – i.e. as conduct which objectively ought or ought not, according to law, to be done.

This hypothesis provides the logical basis for understanding how a subjective act of will can assume the form of an objectively valid legal norm. It is therefore a merely theoretical construction.

Kelsen explains: The basic norm is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating act. The basic norm is the answer to the question: how are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible?‘

It is, in other words, only by assuming that the grundnorm is valid — by assuming that all laws made in accordance with the historically first constitution ought to be obeyed — that we are able to make sense of the fact that we count certain standards as legal standards rather than as an 'aggregate of commands‘.

Legitimacy of NormsIn 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, 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 .

The basic norm itself may be transformed in the manner prescribed by the basic norm. In other words, the basic norm may be changed legitimately. Written constitutions usually contain special rules by which they may be changed.

The Malaysian Constitution may be amended by a procedure that requires approval by a special majority in Parliament.

Prohibition against Constitutional Amendments

It is possible that a constitution may prohibit certain kinds of constitutional amendment.

Article 79(3) of the German Constitution - 'Amendments to this Basic Law affecting the division of the Federation into Lander, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible'. Articles 1 and 20 guarantee basic human rights and the democratic structure of the state. In short, the most fundamental values of the German Constitution are said to be unalterable.

The Indian Supreme Court has taken the view that the basic features of the Indian Constitution cannot be altered by recourse to the amending procedure (Kesavanonda Bharathi Sripadagalvaru v The State of Kerala AIR 1973 SC 1461).

It is generally regarded by constitutional scholars that the Act of Union 1707 cannot be repealed by the UK Parliament. This Act united the Parliaments of England and Scotland and hence is constitutive of the current sovereign Parliament of the United Kingdom.

Kelsen and Revolutionary Political Changes

Kelsen - grundnorm validates whatever constitutional order is currently in force.

But how do we know what constitutional order is in force?

Kelsen's answer: Whatever constitution is 'effective‘ - a constitution being effective when the norms whose creation it permits are on the whole applied and obeyed.

Implication: If there is a revolution in a particular country (i.e., an unlawful break with the past rather than a change by constitutional means), 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’s explanation:• Validity and effectiveness are not

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’s pragmatic approach is thus:

If political reality no longer corresponds to the old order, that order must have ceased to be legally valid, and the usurpers must be acknowledged as the lawful government against the background of a new grundnorm.

The new order may not be morally legitimate but that is an entirely different issue.

Practical effects:

There had been cases where courts were asked to pronounce on the legality of a coup d'etat had validated the coup by reference to Kelsen's doctrine of effectiveness. Finding that the coup has been effective, they pronounce the new order lawful.

Some scholars criticise this approach on the ground that it rewards and even encourages treason, though it is not, in fact, clear that Kelsen would have endorsed this particular use of his theory.

For Kelsen, the grundnorm is a presupposition made by jurists — that is, people who are not officials — after an effective seizure of power has taken place.

By contrast, judges who are asked to pronounce a coup valid are usually in the midst of events and are being asked to put their weight behind the seizure of power.

This was exactly the situation in the case of Republic of Fiji v Prasad (2001).

Republic of Fiji v Prasad (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 (that was overthrown) 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. It then went on to find that the Interim Civilian Government did not enjoy the required public support and that the revolution had therefore not been successful. Remarkably, the government agreed to implement the court's decision

Prasad was, it must be admitted, a very special case.

•The usurping government had been in existence for only seven months. What would be the situation if many years had elapsed and the revolutionary government had decisively established itself in power. •There had been no attempt by the coup leaders to replace the court system of the old regime and it was the usurping government itself which made the legality of the new order the subject of a court case, promising to promote a return to constitutional legality if the court were to uphold the 1997 Constitution. •Prasad nevertheless has something to teach us, namely, that while Kelsen is right that there may come a point at which the brute facts of political reality require legal acknowledgment, we should not be too quick to assume that this point has been reached.

KELSEN’S VIEW ON INTERNATIONAL LAW

Kelsen compared international law to primitive law, but claimed that international law and national law are parts of a unified system of law derived from a single basic norm.

Kelsen therefore took a monist view of international law, in opposition to the dualist view that regards international law and national law as separate systems of law.

The dualist view holds that international law is the law governing relations among states, and national law is the law regulating relations among individuals and between state and individuals. They are separate and independent systems of law.

Kelsen rejected the dualist position.He maintained that international and national laws operate within the same sphere in relation to the same subjects. He argued that the state is not some separate metaphysical entity but a collection of individuals assembled and regulated by national law, like any corporation. All law regulates human behaviour. State responsibility at international law is actually individual responsibility.