|
|
 |
 |
 |
| Friday, 4 June 2004 |
 |
|
 |
Features | |
| News Business Features Editorial Security Politics World Letters Sports Obituaries
|
Of Kelsen, the Grundnorm and constitutional change by Dr Shivaji Felix
Hans Kelsen has been at the epicentre of the current discussions on constitutional reform. Kelsen has been belittled and subject to much criticism on the basis that his theories are of questionable validity and do not stand the test of intense scrutiny. There are those who have even gone to the extent of pointing out that Kelsen is not a very well known jurist. They assert that Kelsen's theories were of no consequence within his own lifetime and that they are certainly of no relevance in the current context. This article is intended to explain significant aspects of Kelsen's philosophy of law in order to demonstrate his importance to jurisprudence and the current constitutional discourse. Profile of Kelsen Kelsen (1881 1973) was an influential legal theorist and was a central figure involved in drafting the Austrian Federal Constitution after the First World War. According to one account Kelsen is said to have published 387 separate works of which approximately 100 dealt exclusively with legal theory (see, e.g., Michael Hartney, "Appendix: Bibliography of Kelsen's Publications in English" in Hans Kelsen, General Theory of Norms (M Hartney trans. and ed., Oxford: Clarendon Press, 1991), pp. 440 454). The vast array of Kelsen's work and the neo-Kantian philosophical tradition on which it is based coupled with the sophistication of his theories has resulted in the crucial importance of Kelsen's work not being fully appreciated by Anglo-American audiences. This is further complicated by the fact that during a period of over 6 decades of legal writing Kelsen's position on various matters changed in subtle but important ways (see, e.g., Stanley L. Paulson, "Kelsen's Legal Theory: The Final Round" (1992) Oxford Journal of Legal Studies 265, at pp. 265 266). A major problem for those seeking to understand Kelsen's jurisprudence is that it is extremely difficult to extract and appreciate those parts of Immanuel Kant's philosophy in which Kelsen's writings are grounded. Kelsen's version of legal positivism, more commonly referred to as the 'theory of positive law', constitutes an unfinished search for the quintessence or fundamental character of law or at least those essential features that are necessary for us to perceive it. Referring to Kelsen's contribution to legal philosophy Professor M D A Freeman states that "[t]here is no single writer in the last century who made a more illuminating analysis of the legal process than Hans Kelsen." (M D A Freeman, Lloyd's Introduction to Jurisprudence (London: Sweet & Maxwell, 7th edn., 2001), at p. 255). Professor H L A Hart, a jurist of seminal importance and a well known Kelsen critic, has stated that Kelsen's monumental work, incorporated in his General Theory of Law and State (1949), "deserved the compliment of detailed scrutiny" (see, e.g., H L A Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), at p. 286). Thus, it would be absurd to assert that Kelsen is not worthy of serious study or that he is a little known theorist whose philosophy is of no relevance today. The fact that some jurists have criticised Kelsen should not result in a failure to understand the sophistication of his reasoning and a failure to appreciate the quality of his work. Reine Rechtslehre (Pure Theory of Law) Kelsen referred to his theory as "Reine Rechtslehre" or a "Pure Theory of Law". Kelsen asserts that his theory is "pure" because "it only describes law and attempts to eliminate from the object of this description everything that is not strictly law" (Hans Kelsen, The Pure Theory of Law (M Knight trans., Berkley, Calif: University of California Press, 1967), at p. 1). Kelsen attempted to extract a theory that was not polluted by moral judgments, political biases and sociological conclusions in his quest for a scientific description of law. It is important to note that Kelsen's use of the term "science" is translated from the German Wissenschaft which has a meaning that is broader in scope than the English "science". For instance, it is neither unusual nor controversial to use the term Wissenschaft even when referring to literacy theory. Kelsen's pure theory of law focuses on normativity. Kelsen argues that normative claims can only be grounded on other normative claims (Pure Theory of Law, pp. 4 10). This is an argument commonly attributed to David Hume that one cannot derive a normative conclusion from a purely factual premise. Kelsen then points out that lines of justification must necessarily come to an end at some point (Pure Theory of Law, pp. 193 195). Each normative argument is based on or justified by some more general or more basic argument. The norms comprise a pyramidal, hierarchical structure and whilst the lower norms are more specific the upper norms become increasingly more general. The process of moving down the hierarchy of norms, from the general to the specific, is referred to as concretisation. To understand the picture more clearly one can start with the simple normative statement "no parking here". If the person making this statement was asked why this was so, he or she may refer us to a regulation which was validly promulgated. The validity of the regulation would rest upon the validity of the empowering statute. The statute traces its validity to the constitutional criterion for the enactment of valid statutes. The constitution is valid because it has been promulgated in terms of the previous constitution and so on until one comes to a point where it is not possible to go any further and no further justification can be offered (i.e., the historically first constitution or the Grundnorm). Following the whole chain through leads to the conclusion that to assert the normative validity of the individual legal rule (i.e., in the present case, "no parking here") is implicitly to affirm the validity of the fundamental link in the chain (i.e., one ought to do what is authorised by the historically first constitution). The resulting position is that the affirmation of the fundamental norm is "presupposed" by any express or implied affirmation of individual legal rules. Kelsen refers to this affirmation of the fundamental norm as the "basic norm" or "Grundnorm". (To be continued) |
|
News | Business | Features
| Editorial | Security
Produced by Lake House |
