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