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					                                             KELSEN
Looks for the underlying objective structure of legal systems, rejects anything that is seen as
subjective.

Kelsen’s views runs counter to common law traditions – doctrine of precedents, legal ideas are
found empirically in the practical business of deciding cases.
Kelsen’s pure theory of law does not reflect circumstances of actual legal systems.

Kelsen’s 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

Kelsen’s 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

                                        Kelsen’s 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.

                                                                                                   1
   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). It’s 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
 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.

                                                                                                   2
   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, it‟s 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 Kelsen‟s
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;
    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.




                                                                                                      3
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 other‟s 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 int‟nl law?
        o A statute that contravenes the norms of int‟nl 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 int‟nl law may be subject to sanctions under int‟nl law
        o The basic norm of this unity of domestic and int‟nl law may rest on either the primacy of
            domestic law or the primacy of int‟nl law  either is acceptable, it is a matter of
            ideology

Kelsen defines the basic norm of int’nl 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 int‟nl law which somehow legitimises any effective, coercive order


CRITICISMS on KELSEN
   Kelsen‟s 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, Kelsen‟s 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 Kelsen‟s hierarchy of norms by analogy to Acquina‟s interpretation of law:
Grundnorm = natural law
Norms = human law derived from natural law using reason
A bit far-fetched?

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




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