Hans Kelsen law as a system of norms

With legal norms the case is different. These are not valid by virtue of their content. Any content whatsoever can
be legal; there is no human behavior which could not function as the content of a legal norm. A norm becomes a
legal norm only because it has been constituted in a particular fashion, born of a definite procedure and a definite
rule. Law is valid only as positive law, that is, statute (constituted) law. Therefore the basic norm of law can only
be the fundamental rule, according to which the legal norms are to be produced; it is the fundamental condition
of law-making. The individual norms of the legal system are not to be derived from the basic norm by a process
of logical deduction. They must be constituted by an act of will, not deduced by an act of thought.
Kelsen "The Pure Theory of Law" at 352.

Hans Kelsen was probably the 20th centurys most famous legal philosopher outside of the Anglo-American
world. His work was relentlessly pure: he sought to understand the law as an abstract system of norms, without
reference to either socio-historical realities (such as why the particular norm was created or its effect in society) or
moral and political views (such as whether the norm is justified).
His question was on what basis can we understand the law as a system of norms of oughts, things we ought to
do? If we are not basing the normativity (ought-ness) of law on morality, where does it come from?
Kelsens answer was that the normativity of the rule we are applying comes from a higher norm that authorises the
lower norm; and that higher norm in turn is authorised by a higher norm. At the apex of the system of norms we
get to the grundnorm the norm which is not authorized by any other norm, but which is presupposed by the
normativity of all other norms in the system. Hart's idea of the rule of recognition and its being an ultimate rule are
made in relation to Kelsen (Hart 102-107).

Readings
R11 (Kelsen); R12 (Bix on Kelsen)

Further reading:
Andrei Marmor The Pure Theory of Law at http://plato.stanford.edu/entries/lawphil-theory/
Raz, The Authority of Law (Oxford 1979), chs, 7 & 8.
Hart, Kelsen Visited (1963)10 UCLA L Rev 709
Kelsen Law, State, and Justice in the Pure Theory of Law (1947-1948) 57 Yale LJ 377
Kelsen The Pure Theory of Law and Analytical Jurisprudence (1941) 55 Harvard L Rev 44
HWR Wade The Basis of Legal Sovereignty [1955] CLJ 568

Questions:
Why is Kelsens theory pure? How does Kelsen explain the existence of a legal rule or legal
norm what allows us to say that the law requires or prohibits something?
What is the role of sanctions in Kelsens theory?
What is the grundnorm of New Zealand? Of the United States?
How is Kelsens theory different from Austin and Harts? Is the grundnorm just a replacement for
the sovereign? Why must we presuppose the basic norm, rather than just saying that legal
officials make use of ultimate rules for recognising the norms of the legal order? Isnt this a
demonstrable fact about the legal system of a territory
Kelsen - changing the grundnorm
The change of the basic norm follows the change of the facts that are interpreted as creating and applying valid
legal norms. The basic norm refers only to a constitution which is actually established by legislative act or custom,
and is effective. A constitution is "effective" if the norms created in conformity with it are by and large applied
and obeyed. As soon as the old constitution loses its effectiveness and the new one has become effective, the acts
that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the new one. The statutes issued under the old constitution
and not taken over are no longer regarded as valid, and the organs authorized by the old constitution no longer as
competent. If the revolution is not successful there would be no reason to replace the old basic norm by a new
one. Then, the revolution would not be regarded as procedure creating new law, but-according to the old
constitution and the criminal law based on it and regarded as valid-would be interpreted as high treason. The
principle applied here is the principle of effectiveness. The principle of legitimacy is limited by the principle of
effectiveness.
Kelsen Pure Theory of Law at 210.
Kelsen set out a distinctive theory of revolution. In his discussion he addressed the question of the relationship
between the efficacy of law (is the law actually obeyed/complied with in a society) and its validity. The discussion
has parallels with Hart's discussion on the same topic, which Hart was clearly setting out in light of Kelsen's work
(Hart 100-101).
In Kelsen's theory, the jurist or legal scientist, observing a purportedly legal order of norms which is 'by and large
effective', presupposes (by an act of cognition) the grundnorm or basic norm upon which the order is founded and
which is the reason for its validity. This presupposition is that 'One ought to behave according to the actually
established and effective constitution'. When a revolution occurs and a new constitution is established in place
of the old, there is a new legal order, a new basic norm being presupposed. I emphasize the importance of
efficacy: it is in Kelsen's 'pure theory of law' the sine qua non of the existence of a valid legal order. Further,
Kelsen's theory is apolitical and amoral. Revolutionary change is legally validated by its general effectiveness
without regard to the moral or ideological values of the successful revolutionaries.
Brookfield Waitangi and Indigenous Rights at 17.

Kelsens theory has often been used to try to understand the legal status of revolutions. His theory has been
applied rightly or wrongly by courts in a number of cases. The question is whether Kelsens theory is the
appropriate basis for courts to understand their role in upholding law in revolutionary situations. Does he give us a
basis for determining which of competing legal systems is the law or valid in such an extreme situation?
Brookfield provides a useful discussion, and the Fiji Court of Appeal provides us a case study.

Readings:
Class 2: R13 (Kelsen); R14 (Brookfield);
Class 3: online link to CA Decision

Further reading:
George Williams The Case that Stopped the Coup? The Rule of Law in Fiji
NW Barber State, Necessity and Revolutionary Legality in Fiji (2001) 117 LQR 408
Michael Head "A Victory for Democracy? An Alternative Assessment of Republic of Fiji v
Prasad"
JW Harris When and Why Does the Grundnorm Change? (1971) 29 Cambridge LJ 103
Republic of Fiji Islands v Prasad HC decision online link (access at campus or logged in to
library resources).

Questions:
How would Kelsen analyse a revolution? How do we know whether a revolution has occurred?
 What is the role of the courts in determining whether a revolution has occurred? Do they have
supra-constitutional jurisdiction as suggested in a number of cases?
The judges in Prasad say they are deciding questions of law. How can questions of revolution and
necessity be questions of law? What would Kelsen say?