Author: Tanya Singh
College: BVDU, New Law College, Pune
A formidable Austrian jurist and philosopher Hans Kelsen (1881–1973) propounded the notion of a Simple Theory of Law. In the early twentieth century Kelsen began his long career as a legal theorist. At the time, Kelsen argued, the existing legal philosophies were hopelessly polluted with political philosophy and moralizing, on the one hand, or with attempts to reduce the law to natural or social sciences, on the other. He found all of those reductive attempts to be deeply flawed. Kelsen then proposed a true theory of law that would prevent some form of reductionism. The Kelsen jurisprudence advocated it characterizes itself as a pure theory of law because it aims at reasoning based solely on the law and this purity serves as its essential methodological concept
As Kelsen saw it, the key obstacle for a theory of law is to include an interpretation of legality and the normativity of law, without trying to limit jurisprudence, or legal science, to other realms. To say that the description is of a new law being enacted is to interpret those actions and events in some way. So then, of course, the question is why certain actions or things have such a legal significance and not some others?
The response Kelsen gives to this question is surprisingly simple: an act or an occurrence acquires its moral-normative significance from another legal norm that gives its normative significance. An act may establish or change the law if it is established in compliance with another “higher” legal rule approving its formation in that manner. And the “higher” legal standard, in effect, is legally legitimate if it is produced in compliance with another and only if it is “higher” rule approving its execution in that manner. In other words: This is the rule in the United States that the legislature in California may pass those types of legislation. Yet what does the law make of this? The Constitution of California grants the state legislature this authority to pass laws within some prescribed material and jurisdictional boundaries. But instead, what actually validates the California Constitution? The response is that the legal authority of the California Constitution stems from an order issued under the US Constitution. What gives legal validity to the US Constitution? The fact that the US Constitution claims to be the supreme law of the land is certainly not the fact. Any document can say that, but it is actually the supreme law in the United States that is only the particular U.S. Constitution document.
The dilemma here is that the permission chain comes to an end: there is no higher legal standard that allows the (original) US Constitution to be enforced. From this point, Kelsen argued famously, one must presuppose the Constitutions legal validity. At some point, we get to an authorizing rule in any legal framework that has not been sanctioned by some other legal standard, and therefore it must be assumed to be legally legitimate. This presupposition’s normative substance is what Kelsen has termed the basic standard. The basic standard is the substance of the assumption of the legal validity of the (first, historical) constitution of the legal system concerned. As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate David Hume’s injunction against deriving an “ought” from an “is”. Hume famously argued that every realistic argument that ends with any prescriptive statement should have to include at least one prescriptive statement in its premises, a statement of the sort that one should do this or that. When all of the arguments assumptions are explicit, telling us if this or that is the case, so there is no prescriptive inference which can proceed logically. Kelsen has taken the point very seriously. He noted that the acts and events which, say, constitute the enactment of a law are all within The domain of what “is” the case, they are all inside the domain of actions and events taking place in the world.
Under Kelsen’s philosophy of law, the notion of the universal norm plays three theoretical functions: The first is to support a non-reductive definition of legal validity. The second task is to construct a non-reductive interpretation of legal normativity. The third role is illustrating the formal nature of legal norms. Such three questions aren’t unrelated. Kelsen found rightly that legal standards inevitably fall into the frameworks. There are no legal standards that float on air. Of example, if anyone says that’s the law needs a will to be confirmed by two witnesses one will always ask about which legal framework is being spoken of; is it U.S. law, Canadian law, German law, or the law of some other country? In addition, the legal structures are structured in a hierarchical form themselves, manifesting a great deal of complexity but also a certain institutional unity. We are talking about Canadian law, or German law, and so on, not only because these are different countries where there is regulation. There are also separate legal systems which manifest a certain unity and cohesion. This formal unity Kelsen was intended to catch two postulates by the following:
1. The same legal system belongs to every two norms that ultimately derive their validity from one basic norm.
2. In the end, all the legal norms of a particular legal system derive their meaning from one universal norm.
Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which derive their validity from the basic norm which is termed as “grundnorm”. Grundnorm or the basic norm determines the validity to other norms derived from it. It is also called the apex norm or the initial hypothesis. It is the basis or the foundation of a legal system. The Kelsen theory differentiates between the validity principle and the effectiveness principle. He assumes that any rule other than the basic norm is valid, not because it is likely to be obeyed, but because of another norm that imparts its validity. The efficacy of all the legal orders is a necessary legal condition for the validity of each single order standard. These norms are valid not because the overall order is effective, but because they are constitutively created. Therefore, it will appear that its validity and usefulness must be held separately, in reference to a given standard.
Change to the Basic Norm
It is only the process of change that clearly indicates the value of the fundamental norm. Suppose a group of people attempts to forcibly cease power to introduce a republican form of government and remove the legitimate government in a monarchical state. When they succeed, the new order will continue to be successful because the people’s behavior was in accordance with the new order, and is considered valid.
Relativism and Dismantling
Common opinion suggests that Kelsen’s reasoning for presupposing the universal rule takes the form of a transcendental Kantian claim. The arrangement will be as follows:
P will only happen if Q
P may (or, probably, P)
P stands for the fact that legal norms are “sought” statements in Kelsen’s case, and Q is the assumption of the basic norm. In other words, the basic norm’s required presupposition is derived from the possibility requirements for the attribution of legal meaning to acts and events. For order to view an action as one of establishing or amending the law, it is important to show that any other legal principle confers upon it the relevant legal meaning of the event. At some point, as we have noted, we are inevitably running out of legal norms that confer the appropriate validity on law creating actions, and at that point it is necessary to presuppose legal validity. The substance of the assumption is the basic standard.
It seems to me that Kelsen’s theory is the strongest current positive law theory based on the notion of justified normativity. Nevertheless, there is another notion of normativity, that of social normativity. An interpretation of the law based on that definition would have little use for the basic standard rule. To bridge the gap between facts and norms i.e. between the is and ought, the basic norm is required. Yet the difference only persists if expectations are interpreted as justified norms. When they are known as social norms the void is gone. Therefore, the fact that legal theorists and practitioners do not knowingly presuppose the basic rule is a major justification in favor of explaining the law in terms of social normativity, rather than the interpretation of Kelsen in terms of justified normativity. The need to ascribe a particular point of view of the legal man to the legal scholars and practitioners and to regard them as presupposing the basic rule in a specific and qualified manner complicates Kelsen’s theory even further. An interpretation is free of these nuances in terms of social normativity and can be regarded as being easier. All the more so because Kelsen never specifies what the universal rule is presupposed by the unique context in which lawyers and jurists are. This omission will lead anyone to believe that they find the rule to be socially acceptable, a reality about the culture they live in.
Legality or validity of Indian Status cannot be determined. Yet our amendment to the Indian constitution is an integral part of the process, and is subject to judicial review. The legality or validity of the law shall be determined by the law in force. BUT Constituent legislation cannot be judged or decided by an external source. Valid law must satisfy two conditions: —
1.) Legally constituted body
2.) Legally valid procedure The Supreme Court shall give amending constitution “Doctrine of Basic Structure.” And basic structure is nothing more than the natural norm (grundnorm).
Kelsen’s claim the spectrum is completely different from Austin’s. The law can be specified according to him in terms of other norms. The entire legal system is structured to various levels and there is a common rule known as the Grundnorm. The Grundnorm differs from all other standards. This is also statutory in nature and while it is formal in its entirety, it is the essential pillar of the legal system. Sanction plays a critical role in Kelsen’s pure principle at the right center. Kelsen’s theory of the central function of sanction is subject to much scrutiny and not as infallible, as discussed earlier. Nevertheless, without the help of the sanction concept his argument would be beyond comprehension. In India the theory of Kelsen plays a crucial role in the Constitution of India. Any such law derives its authority from the Constitution of India. If any legislation is unconstitutional, it can be stuck and declared null and void. Therefore, the theory of Kelsen still plays a critical role in the real world.