Hans Kelsen - Part II Lecture Notes
COMPARING KELSEN AND AUSTIN
The great benefit in comparing Kelsen and Austin is our ability to improve upon the Command
Theory.
Hart looks at a rule based legal system in terms of why judges interpret rules the way they do.
Kelsen on the other hand, examines how rules are interpreted by judges not from the view point of
why they thought such and such a primary rule should be interpreted in such a way, but merely in
terms of whether judges are required to adjudicate primary rules or norms. The former looks to the
internal logic of the judge's thinking, the latter looks to the application of a judge's decision.
For Kelsen, the very notion of an obligation is derived from a norm. Facts do not create norms.
Facts per se can be part of a legal norm, and if they are, then they must be viewed as objective
indicators of specific action required by the law.
INTERNATIONAL LAW AND KELSEN
Kelsen asserts in later writings that all legal systems are to be seen as part of global or larger basic
norm..
BASIC NORMS AND HABITUAL OBEDIENCE
Does understanding the concept of a Kelsen Grundnorm (e.g., the basic norm) help us understand
that norms create rules. When rules are followed, either by interpretations or because they are
understood, Kelsen norm-rule effect takes us beyond the narrow habitual obedience model of the
commands theory. As Hart suggests, a rule based legal system required an internal element to
obedience. But does a Grundnorm have to be part of this internal aspect of a rule-based obedience?
Joseph Raz deals with the above issue by postulating why we should accept the above assumption.
For Raz, he asserts that laws "are normative because they consist of rules" and therefore, the
existence of rules does not by necessity require any ultimate or basic norm justification. In other
words, Raz believes that rules can achieve or acquire legal validity by not necessarily relating back
to a basic norm such as the Grundnorm
"To express this simple fact by saying darkly that its validity is "assumed but cannot be
demonstrated", is like saying that we assume, but can never demonstrate, that the standard metre
bar in Paris which is the ultimate test of the correctness of all measurement of metre, is itself
correct.' (H.L. Hart)
Kelsen's Grundnorm and The United Kingdom
Kelsen's Grundnorm in relation to England's unwritten constitution presents an interesting analysis.
Unlike the United States and other countries where the national constitution is contained in a
written document, the English constitution is composed of statutes, customs and the common law.
How does Kelsen reconcile unwritten based constitutional environments.
Consider Kelsen's statement:
"Coercion of man against man ought to be exercised in the manner and under the conditions
determined by the historically first constitution." What if there is not historical constitution?
Kelsen respond to this omission by asserting that the Grundnorm authorizes the norm-creating
effect of custom. According to Kelsen, the norm creating custom can originates in the collective
"will" of the nation. Otherwise state, I submit, that Kelsen indirectly is referring to revolutionary
type of environment where the all power or winning side dismantles the old regime and it's laws. If
reference is made to the prior order of laws, then the new government or constitution has no legal
basis; however, if the efficacy of the new order to embraced by the collective will - either by force
or approval, the new order achieves validity by virtue of the acquiesces or acceptance of the
population. Hence, a new order or constitution is created.
Summarizing Kelsen with respect to Austin and Hart.
Austin and Hart view the law in terms of socio-policital terms. Namely, Austin sees the Sovereign
issues commands that are habitually obeyed. Obeyed because of the threat of sanction. This is a
socio-policial assessment of the Austin legal system. Similar to Austin, Hart perfects an ultimate
rule of recognition that is interpreted by official and judges as secondary rules of recognition.
Again, this is a socio-political view on the legal system.
Kelsen on the other hand is not describing how the legal system creates law or why officials behave
in a certain way. Kelsen merely assumes an epistemological postulate, the Grundnorm.