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LEGAL POSITIVISM II: LAW AS A SYSTEM OF NORMS General Reading Primary texts
•• Kelsen The Pure Theory of Law, Chs. 1 and 5 (NB see lecture notes on Kelsen) o Aims to answer "what and how law is", not what it ought to be. o o o o
o o o
It is a "pure" theory as it seeks to exclude moral elements and social facts from its description of what law is. By "norm" Kelsen means something that "ought" to occur. It refers to an act by which certain behaviour is "commanded, permitted or authorised". There is a difference between saying something "is" and something "ought to be". He says that laws are norms e.g. theft is punishable by imprisonment is NOT a statement of fact but an instruction to officials that this "ought" to happen : It is a command/authorisation/permission for officials to do the thing. An official's order is authorised by an act of parliament, whose own authority in turn comes from the constitution, who in turn is authorised to take its form by the historically first constitution, which in turn derives authority from the "basic norm" or "grundnorm". Law is thus a system of norms, which is defined as having the meaning that something "ought" to happen both because the actor thinks it ought to happen, AND because it objectively ought to happen (objective element = authority up the chain to the grundnorm). Hence a gangster's demand for money is NOT a valid norm, whereas a tax inspctor's demand for payment of tax IS. Thus custom may be a source of law if the constitution allows it to be and the acts which constitute the custom make others feel that they "ought" to do something. A positive norm (i.e. a posited law) is saying that a certain behaviour is authorised, forbidden commanded etc, or simply that X ought (not) to be done. To say a norm is valid does not only mean that it is actually applied and obeyed, but also that it "ought" to be obeyed (i.e. that it is authorised within the chain of authority set out above- NB this is NOT referring to morals). Kelsen demonstrates that legal norms can be used to authorise certain types of behaviour or prevent it. Thus it is not susceptible to the same criticism as the command model, which cannot explain power conferring rules. Social orders exist which can sanction people e.g. by punishing those who don't conform. Moral orders are considered usually as social, not legal orders. Any order, social, moral etc draws on a "basic norm" for validity . Legal orders have the characteristic of relating to human behaviour. Secondly they are coercive. This coercion may be "psychic" in that the individual feels obliged to obey merely by virtue of something being a law. Doesn't explain power-conferring lawsthey aren't coercive!
For legal orders the basic law is that one ought only to impose laws in the way stipulated by the historically first constitution. NB this is merely an assertion, not a justification. Why should one obey the historically first constitution? Kelsen cannot provide an answer, because there is none. The only answer is that this is what officials do in practice and it is necessary to do so in order that we have some way of making laws i.e. Hart's rule of recognition. Thus Kelsen's attempt to describe a theory of law without drawing on social facts fails. There is nothing inherently good about a first constitution- people merely accept it as valid for practicality's sake. Kelsen says the basic norm presupposes conformity with the legal order. Kelsen defends idea of law as a coercive order against the point that some laws confer power by claiming that norms which authorise acts are merely "dependant norms", which are attached to other norms that DO lead to sanctions. Nonsense- what about contract law? Assuming nullity is not a sanction, how can the power to confer a benefit on a third party be considered coercive? What other norm, when attached to it, would make it coercive?
The only thing that can validate one norm is a "higher norm" (e.g. why is it right that I get a parking fine- because statute permits it). Really- why can't a normative statement just be valid per se e.g. why should I obey the law? Not, as Kelsen says because the law was permitted by the constitution, but because if people didn't obey the law there would be anarchy. The basic norm's validity is presupposed and cannot be questioned- it constitutes the "unity in the multitude of norms byu representing the reason for the validity to all norms that belong to this order." What? No justification? In which case it is nt representing the reason for the validity of the other laws- it might as well just be a statement saying "you will obey", which is closer to the command theory. Kelsen describes his system, in which one is "not allowed" to question the basic norm, as a "dynamic systes" of norms. Kelsen's theory only appears workable where there is a grundnorm that people genuinely think is unquestionable: i.e. a religious system, where one cannot question the rules of god- indeed Kelsen uses religious examplesbut cannot work in a democracy where there are no such idols. Conflicts of norms: If two norms on the same level clash, the later one takes priority since the sovereign can normally change the law. No conflict is possible between a higher norm and a lower one. Really? What if the Court of highest instance makes a decision that goes against a principle of the constitution? How does Kelsen's system resolve that dispute?
There is a problem with Kelsen's theory: If a revolution occurs and a new constitution is imposed, the chain of norms breaks down: The new constitution can no longer draw on the historically first constitution for validity (since it has not arrived in its current state from operating within the first constitution), and nor does the basic norm justify it, since the basic norm only applies to the first constitution. Kelsen tries to get round this by claiming that the new constitution, with revolution, changes the basic norm and itself becomes the first constitution. There is no other explanation for this than a recognition of the politicial/social facts which Hart uses to justify the rule of recognition. The validity of the legal system comes from the basic norm.
•• Kelsen General Theory of Law and State, pp. 110-125, 189-192, 366-370, 383-385
Legal order = a system of norms. What makes a system out of a multitude of norms? When does a norm belong to a certain system of norms?
Need to clarify the grounds on which we find a norm valid can't be true or false (like a scientific fact) because a norm isn't a statement about reality only valid when we say it's valid.
Reason for the validity of a norm = always a norm, not that it is a fact.
Basic Norm: One which validity can't be derived from a superior norm = common source, the difference between all the different norms of which an order consists.
If several norms all receive their validity from the same basic norm then, by definition, they all form part of the same legal system.
'is' statements are true because they agree with reality of a sensuous experience but an 'ought' statement is only a valid norm if it belongs to a valid system of norms derived from a basic norm supposed to be valid.
Static Systems of Norms:
'Norms are valid' people whose behaviour is regulated by norms ought to behave as the norms say by virtue of contents. Binding force of norms = supposedly self evident. Obligatory nature may appear so obvious that no one needs to question its validity. However, only concern = various norms basic norms as the particular is implied by the general all particular norms of such a system are obtainable by means of an intellectual operation, by inference from the general particular.
Dynamic Systems of Norms:
Various norms can't be obtained from the basic norm by any intellectual operation
basic norm merely establishes a certain form of authority. E.g. don't lie because I forbid it. Norms created by the acts of will of individuals who have been authorised to create norms by some higher norm (delegation) from basic norm.
Laws as a Dynamic System of Norms: a.) Positivity of Law:
Legal norms may have any kind of context validity can't be questioned on a political or a moral basis. Norms are valid if they belong to a certain legal order, defined by the basic norm. Law = always the law created and annulled by the acts of human beings, independent of morality.
b.) Customary & Statutory Law:
Legal norms are always created deliberately, not accidentally. Always created via a deliberate act, unless has arisen through custom. This isn't conscious, but people must regard their acts in conformity with a binding norm & not as an arbitrary choice. These are the 2 fundamental types of law statute = anything created in a way other than by custom.
Basic Norm of a Legal Order:
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