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KELSEN

Looks for the underlying objective structure of legal systems, rejects anything that is seen as subjective. Kelsens views runs counter to common law traditions doctrine of precedents, legal ideas are found empirically in the practical business of deciding cases. Kelsens pure theory of law does not reflect circumstances of actual legal systems. Kelsens Modernism & Pure Theory of Law Values & morals should not be the subject of legal analysis. HOWEVER, connection between laws and morals DO exist Kelsen seeks to make his theory pure and objective by looking ONLY at law and legal systems in themselves Kelsens Conceptualism His concept or model of legal systems can describe and define ANY legal system, regardless of values and politics Concepts do not reflect experience, they organise it and make it intelligible. NORMS Law regulates its own creation but does not determine conclusively its own content. Kelsen as neo-Kantian Kant: impossible to know anything in itself; we become aware of things through our senses, but that is not enough; we must construct a set of concepts or categories to allow us to make sense of the world a conceptual map Kelsen provides these categories in analysing law for Kelsen, something which happens cannot be understood in terms of law unless it can be fitted into the conceptual structure which his theory provides. Law is a scheme of interpretation, cognitive, it imposes order on what otherwise would be legally meaningless acts, experiences and rltnships o E.g. A is travelling at 70kmh, this info has no legal significance unless we think about it in terms of a law which says A is exceeding the speed limit o Killing someone is an act that does not have any legal significance unless viewed through a legal system Law orders everything into categories: criminal, tortious, contractual Law also orders our experience and relation to the world, by legal concepts such as rights, property, reasonableness and consent Kelsens Theory Norms: Kelsen saw law as saying what ought to happen. Norms do not say thou shalt not kill, they say if you do kill, you ought to be punished Norms are not statements about what actually happens in real life content of norms are not important to Kelsen law regulates its own creation but does not determine conclusively its own content NORMS are descriptions of, or statements about, what ought to happen w/i a legal system. They may incl. statements about required behaviour OR they may authorise institutions, bodies or individuals to create or enforce these norms.

For a norm to be valid, must be supported by an objective reason, cannot be purely subjective. i.e. need a norm to validate a norm. Increasing level of concretness from top down.

The validity of each norm in the system is dependent on a higher norm. 1. Constitution provides that whatever Parliament enacts is law 2. Parliament has enacted the act which appointed the judges 3. Act appoints the judge 4. Judge decides the person is guilty 5. The jailer turns the key Sanctions what happens when a norm is not followed? A legal norm, once broken, will attract a sanction: norm + delict sanction Delict: when someone breaks a norm The validity of norms: A norm is a part of a structure a hierarchy of norms A norm is not valid because of its conformity to reality (what IS). Its what OUGHT to occur o E.g. Why should a child go to school? It is not because his father said he should go. But it is because a child ought to obey his father A norm is valid because it has been created according to a definite rule. Thus, any norm, in order to be valid, must be validated by a norm further up in the hierarchy it is valid not because of anything that it says (its content), but because it has a specific rltnship with a higher norm (how it is created) Validity of a law cannot be measured against morals or political principles but this is not the same as saying the content of law cannot be measured against these external forces Do not confuse whether a law ought to be obeyed with whether an immoral law ought to be obeyed Kelsen is not concerned with the latter Efficacy and validity: Kelsen acknowledges that the efficacy of entire legal order is a condition of the validity of laws within it. But Kelsen was not concerned with efficacy, this is an empirical matter. This is not contradictory: Kelsen says the content of law is important to determine validity, but he simply does not concern himself with the content. when a basic norm no longer attracts support (that is loses its efficacy), it may be supplanted by some other basic norm: REVOLUTION Problem with his theory: but the criterion of validity is what the courts regard as valid (cases that occur in jdns that underwent revolutions) then the choice of grundnorm is not dictated by effectiveness but is a flexible political decision The Grundnorm / Basic Norm: What validates the first constitution? Situations such as govt overthrow or declarations of independence validates a constitution, but these are not legal things. BUT Kelsen says anything not legal cannot be used to analyse the legal system. So, what validates the 1st constn?? For the sake of playing, we assume the rules of the game (which are already laid down) are valid. The grundnorm grounds the validity of all the norms of that system 2

Using objective reasoning to interpret subjective norm creation The basic norm is the postulated ULTIMATE rule according to which the norms of this order are established and annulled, receive and lose their validity. Grundnorm: o Not a legal norm since it cannot be validated by a higher norm o Not a legal norm since it is not created by a law creating institution, using legal procedures it is the limit of law, the border between law and other social disciplines o It is a FICTION an assumption/presupposition that lies above the entire legal system o Cannot be verified or proved o The content of the basic norm is not fixed, but will alter according to changes in society or politics. o the end of the road, but the fact that end has been reached still seems to imply some beyond grundnorm is self-contradictory o Kelsen is effectively saying that the notion of VALIDITY is indemonstrable. o OBJECTIVE validity determines the authority of law. NOT the social approval and acceptance.

The legal person: - unity of a complex of legal obligations and rights - a concept distinct from the human being Revolutions: For a legal order to be valid, its not necessary that every law be obeyed, but there should be general adherence to the basic norm. Nor does a legal order cease being valid merely because a single norm losses its effectiveness. When the basic norm of the system no longer attracts support, it may be supplanted by some other basic norm revolution. Revolution occurs when the legal order is being replaced in an illegitimate way, i.e. not prescribed by the first order itself The new legal order will have a new basic norm and a new constitution many old norms will remain in force, but the reason for their validity will have changed. In the break between the intro of a new regime and the overthrow of the old one, the courts determines what is valid by applying their own criterion. a criticism of Kelsen Kelsen explains that when there have been illegitimate revolutions, the basic law will change along with the constitution. Does this mean we can ignore laws if there has been a revolution? Many laws within the system will still exist but the basis of their validity will have changed through the imposition of a new basic norm. This is a neat explanation of the change in legal order; however, what is a problem with Kelsens approach is that he also acknowledges that a basic norm may change in circumstances other than revolution. In the latter case, there would not be any change to the validity of the laws in the system. Examples of where grundnorn shifted in reality including Venezuela 2002: Venezuela President ousted after violent protests by military who appointed new civilion interim government. Fact no one could re-instate the old president meant it was more efficacious for the grundnorn to shift. In Pakistan the validity of the Post-Pertition Constitution needed to be examined by the courts to be varified; In Fiji the phases of democracy had to be examined to see if the previous constituional was still operative; 3

In Rhodesia when Ian Smith unilaterally declared independence there were challenges to the validity of the Constitution/the Grundnorn in place. The courts pass judgment on the basic legal order. Kelsen on International Law 2 views: monist (int law as an overarching norm) and pluralist (int law as part of domestic law) MONIST: A norm of general int law authorises an invidual/group on the basis of an effective constitution to create and apply as a legitimate govt a normative coercive order. o States recognise that each others legal systems have equal force; they acknowledge the existence of a superior basic norm to the basic norm of their own legal systems customary practice backed by threat of coercion: war and reprisals; or self-interest and fear PLURALIST: based on acceptance by individual states. o What if there is a conflict btw domestic law and intnl law? o A statute that contravenes the norms of intnl law is essentially the same as a statute that contravenes the constitution of a country it is valid unless a procedure exists to invalidate it; those who pass the statue may be subject to sanctions; same as those who breach intnl law may be subject to sanctions under intnl law o The basic norm of this unity of domestic and intnl law may rest on either the primacy of domestic law or the primacy of intnl law either is acceptable, it is a matter of ideology

Kelsen defines the basic norm of intnl law as: States that is, the govts of the States in their mutual relations ought to behave in such a way; or: coercion of State against State ought to be exercised under the conditions and in the manner, that conforms w/ the custom constituted by the actual behaviour of the States. CRITICISM: A product of wishful thinking? cannot say that the validity of a national system is a norm of intnl law which somehow legitimises any effective, coercive order

CRITICISMS on KELSEN
Kelsens theory rests on a contradiction the grundnorm is a fiction, a mere supposition that cannot be verified o But is this taking an empirical approach to law? Kelsen was only concerned with conceptual aspects of law. To measure effectiveness must know content of the norm, i.e. the nature of duty involved. Kelsen reduces all legislation to If X then Y - narrow! It says that law is essentially coercion many laws do not attract a sanction; some are regulatory When there are two competing legal systems in governing a state, Kelsens theory need to step outside its boundaries and engage with empirical observations about efficacy to what extent the norms of a legal system are being followed

My own thoughts: - Can think of Kelsens hierarchy of norms by analogy to Acquinas interpretation of law: Grundnorm = natural law Norms = human law derived from natural law using reason A bit far-fetched? 4

Acquina was also not concerned with content universality of natural law, applies to everyone; a framework

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