In the earlier articles, we discussed the position of law as per HLA Hart who believes that law is a combination of primary and secondary rules. However, this time we would be discussing a philosopher who has a completely different idea about what is law, thus we would be discussing Hans Kelsen’s views on law.
Hans Kelsen states that law is a norm. It is a legal ‘ought’ proposition. The norm is not dependent on fact or morality and derives its validity from a higher norm. The highest norm is the basic norm or grundnorm and all norms derive their validity from it. This creates a normative structure. Norms are not vitiated by the content or fact condition of the society. The compliance by people does not affect its validity.
All norms ultimately derive their validity from grundnorm. It creates a legal order in the society with a structure of norms. The content of the norm is dynamic and may be anything. Through this system, norms may be added, deleted or altered.
Grundnorm can be understood as a necessary presupposition. It has no legal formation but is based on the assumption that the first extra legal activity which led to the creation of a document for governing our current legal order was valid. Essentially the constitution is not the grundnorm. It is a presupposition that the historically first constitution is valid.
The legitimacy to a legal order is provided by the belief of the people (presupposition). If the belief of people changes, the source of validity for the legal order changes. The validity of the norms is now to be tested on the basis of belief in the new grundnorm.
This is called the pure theory of law because it is free from all external considerations such as morality and is entirely based on norms. Law and legal theory are two different things. Law may be different from one system to the other, but legal theories are universal in nature. So the purpose of writing a theory is to explain all types of law and legal system. So that is possible only if one could write a theory which is not dependent on morality or social fact and on something which is common in all legal systems. Such commonality should be the basis for the writing the theory and such theory would be pure in nature. Morality is impure as it differs on time to time and place to place basis. Purity means to avoid all the variables that are there in the society. Morality and social fact are variable.
Now let’s see how Kelsen dealt with a few related questions:
- How is a Legal Order Legitimate?
The principle of legitimacy in any legal order arises from effectiveness. If the legal structure is effective, then the grundnorm is valid. The constitution of a state is valid if the legal order established on the basis of that legal order is, on the whole, efficacious. A government, its legal order can be regarded as legitimate by international community if they are effective.
- What is the Role of a Judge in such a Norm Based Legal Order?
Kelsen says that a judge must be a legal scientist judge and not a loyal judge. He must be loyal to the grundnorm, which can change, and not to the legal order which gave him the power.