Hans Kelsen – Normative Theory (Grundnorm) – Jurisprudence Notes

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Norms and Facts

  • Facts consist of things and events in the physical world and revolve around what ‘is’.
  • Norms unlike facts focus on what ‘ought’ to be and not what ‘is’.
  • X kills Y is a fact. Whether X ought to be punished for committing murder of Y or not is a norm.
  • Norms are of two types – legal norms and moral norms.
  • Legal norms are coercive unlike moral norms which are not.
  • Legal norms arise from validation by another valid norm.
  • Grundnorm – The norm on which all other norms are based and beyond which no norm is presupposed.

Pure Theory of Law

  • Kelsen calls his theory as ‘pure theory of law’ as it attempts to distinguish between law and what is not strictly law
  • His theory distinguishes law from facts and morals
  • The main ingredients of Kelsen’s pure theory are derived from Kant’s theory:-

o   the world of things (noumena) and the world of ideas (phenomena);
o   what ‘is’ (sein) and what ‘ought’ to be done or not done (sollen).

  • When a law is made the object of the law say it is to provide speedy trials for certain offences. Then the object is a norm as the act may not be able to always provide for a speedy trial but the enactment of the act is a fact.
  • A norm need not provide a rule of conduct that can be known beforehand.
  • Not every expression of will directed to a person is a norm. Robber threatening a person to handover money a gunpoint is not a norm.
  • In order for a norm to be objective it must be authorised by another valid norm.
  • Imputation – Effect of a norm
  • A norm creates a duty to behave in a certain way by imputing a sanction to the breach of that duty.

Grundnorm

  • Grundnorm is an interpretation of a set of facts. It is not derived from facts but is an interpretation of them.
  • Its effectiveness is directly dependent on the effectiveness of the norms that are derived from it. E.g. – If government carry out genocidal activities, people will eventually start disobeying these activities and there will come a time when they will stop obeying the government itself.
  • Effectiveness is a condition of validity but is not validity itself.
  • A norm may be valid even when it fails on occasion to be effective in shaping conduct.
  • Occasional infringement of a norm will not render the norm invalid rather it is in the nature of norms that they are capable of being violated, for if a norm is always followed it is not a norm but a law of nature.

Kelsen on Revolution

  • In a revolution (Peaceful or Violent) the grundnorm may be replaced by events such as a military coup or grant of independence from colonizer to its colony.
  • During revolution even if grundnorm is changed laws made by previous regime governing citizenry remain unchanged and do so because of tacit consent of new grundnorm.
  • The content of these norms remains unchanged but the reason for their validity changes as the previous grundnorm is displaced by a new grundnorm.

Hart v. Kelsen

  • Kelsen says that the normativity of law is based on a grundnorm, whose validity we accept through tacit or explicit consent and by doing so, we to all the consequent norms of the legal system.
  • Hart on the other hand says that normativity of law is based in social practise. To know what we ought to do, we need to use the fundamental rule of recognition which is nothing but a set of legal criteria that validates a law.
  • Hart’s theory is meant as an analytical description of actual practices, while Kelsen sought a theory purified even of sociological observation.
  • Hart’s view of the normative reduced it to a combination of certain types of social facts, while Kelsen resisted any reduction of “normative’ to facts.
  • Hart’s theory tried to track and explain actual social practices, Kelsen’s theory tended to be more abstract-appropriate for what purported to be a “pure theory”.
  • Hart’s analysis builds on close attention to actual practices and linguistic usage. On the other side, Kelsen is offering a kind of logical analysis of law and of normative thinking in general.

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