Pure Theory of Law - 'Basic Norm (Grundnorm)'

'Basic Norm (Grundnorm)'

Kelsen assumes, however, that the scientific representation of a positive-legal order, as a hierarchy of legal propositions, must have a guarantor of unity. This guarantor cannot be other than a component of the representation, hence a legal proposition. Being a legal proposition, it counts as a representation of an actual norm. So Kelsen calls it, elliptically, a 'basic norm (Grundnorm)'. A basic norm is 'presupposed' in legal science for each order of positive law, to make it possible to understand that material as an order of positive law. This norm is simply that 'the historically first constitution is to be obeyed'. That constitution may have become established by custom or by revolution: the jurist does not evaluate the circumstances.

Kelsen was always aware that a 'constitution' (Verfassung) might or might not be a single document. In some legal orders, indeed, it can be difficult to draw a line between 'constitutional' and other norms. In 1964, Kelsen relativised the idea of 'constitution', holding that each relatively higher legal norm is a 'constitution' in relation to any norm created under its authority. This need not, however, wholly supersede a narrower sense of 'constitution', which identifies those relatively 'high' legal norms that can be changed only through a specially onerous process such as a large parliamentary majority or a popular referendum.

To presuppose a basic norm for a particular positive-legal order does not involve any moral or other extra-legal evaluation of the basic norm's requirement of obedience. The jurist simply supposes that such a requirement has been stated. The jurist does so, irrespective of whether any such norm can be empirically discovered. At this point, serious difficulties emerge - with which Kelsen wrestled for much of his long life.

One part of the problem lay in his starting point, the question 'Why should the law be obeyed?'. He gives the idea of a basic norm two roles. In one role, it is the guarantor of unity in legal-scientific representation of a positive-legal order. In another role, it is an answer, for that legal order, to the obedience question - put in the more clearly descriptive form, 'Why is the law binding?'. One might think, rather, that to suppose for a particular positive-legal order simply that the historically first constitution (identified on this occasion) 'is to be obeyed' is instead to assume that a reason for obedience has already been established outside the legal order and beyond the ken of legal science. In that case, legal science would be seriously inadequate. On the other hand, if the reason for the bindingness of a legal norm is intrinsic to its 'legal' character, that reason might have to be sought in the 'legal' form of the individual norm and not in any kind of further guarantee.

Another part of the problem lay in the requirement that the 'basic' factor be, or count as, a norm. Early on, Kelsen may have supposed that there could be such a real norm. Later, however, the 'basic norm' was relegated to being only a 'hypothesis'. In a philosophical light, nonetheless, it had the status - in Kantian terms - of a 'transcendental-logical presupposition', a logical condition for the possibility of a certain kind of knowledge.

Eventually, Kelsen accepted the criticism that the concept of a basic norm involves an infinite regress. If the basic norm of a particular positive-legal order is an authorising norm, one can ask what is the source of the authority of the basic norm itself. If 'is' and 'ought' are to remain entirely separated, that can only be a still more 'basic' norm; and then the same question could be asked again, and so on infinitely. At this point, Kelsen took a further step back, accepting that the concept of a basic norm is doubly contradictory: it is self-contradictory in that it involves an infinite regress; in addition, since no such norm actually exists, to presuppose the existence of such a norm contradicts reality. The concept is a full 'fiction' in the sense to be found in Hans Vaihinger's 'philosophy of "as if"'. But then not much remains of it, although Kelsen evidently considered that what remained was vital.

And there Kelsen ended, committed to an epistemology that was so radically relativistic as to challenge the very idea of authorisation. Nonetheless, if Kelsen does not provide an effective answer to the obedience question, he has posed that question - and many others - with exceptional sophistication.