Grundnorm and Constitution: The Legitimacy of Politics. T. C. Hopton*. Hans Kelsen’s Pure Theory of Law and its doctrine of the Grund- norm has achieved a . 1Central to the works of Hans Kelsen, H. L. A. Hart, and many other legal theorists for legal normative systems Kelsen called “the Basic Norm” (“ Grundnorm”) oing ssay his on orget utline elsen heory irst articularly he ature ontent nd unction he rundnorm there is little doubt that in the majority of cases, certainly.
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This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, grundnormm Section 2, the author ,elsen a view regarding the nature of law and legal normativity focusing on Kelsen’s work at least one reasonable reading of it.
The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative way. In this Kelsenian approach, all normative systems are structurally grundnorj logically similar, but each normative system is independent of every other system — thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart’s theory, analyzing the extent to which his approach views legal normativity as sui generis.
This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: The author shows how a more deflationary and less morally-flavored understanding of the nature of law is tenable, and may, in fact, work better than current conventional morality-focused understandings. Hart, and many other legal theorists of the past century 1 is the idea that law is a normative system, and that any theory about the nature of law must focus on its normativity.
There are familiar questions connected with explaining legal normativity: And there are methodological questions: This article will focus on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories.
The argument will be that the Basic Norm 3 is presupposed when a citizen chooses to read the actions of legal officials in a normative way. This approach will raise questions regarding what has become a consensus view in contemporary jurisprudence: I will show how a more deflationary and less morally-flavored understanding of the nature of law is tenable, and may in fact work better than current conventional morality-focused understandings.
In the context of a normative system like law or morality or religionevery statement of what one ought to do or ought not to do requires justification from a more general or more basic ought statement, leading upward through the normative hierarchy, 8 until one reaches a foundational normative premise.
The reason is that under this approach every normative system is shown to be necessarily grounded on a foundational norm that is itself subject to no direct proof. However, these implications must be left to others to discuss, or for other occasions. And the corollary is that every normative system is self-contained and independent of every other normative system.
The normative system that is law, with its foundational norm, is necessarily separate from the normative system of a particular religion or a particular moral system. However, it is important to note: This point can be generalized across normative systems.
Some look at events in our natural, empirical world and see kflsen Other equally competent and intelligent adults can look at the same world and see nothing normative: And, of course, some people may see in a normative way in some of kelsenn areas but not in others.
Analogously, the radical lawyer or anarchist scholar can make claims about what one ought to do if one accepted the legal system viewed the actions of legal officials in a normative wayeven if that lawyer or scholar saw the actions of legal officials only in a non-normative way, as mere acts of power. Certainly, we see around us a wide variety of secular and religion-based moral systems being advocated or assumed — with a broad range of variations on consequentialism, deontological ethics, and virtue ethics and mix-and-match combinations of the threejust among the secular approaches to morality.
For example, one might say to people playing chess that they ought not e.
However, those same people could decide never to play chess, in which case keksen sort of prescriptions about how one ought to move the bishop would have no application.
On one hand, in many societies today the normative rules of a particular religion are not thought to be binding on those who are not members of that religious group. Of course, the way we grundnlrm about religion today is far different from the way people thought about it in the past. A transcendental argument to simplify goes from a conclusion of what must be true, lest the ultimate conclusion be false, or, at any rate, unsupported. Where one asserts the validity of any lower-level norm in a legal system, 31 one implicitly asserts or presupposes the validity of the foundational norm of the system.
Hart, like Kelsen, emphasized the normativity of law in his criticism of earlier legal theorists particularly that of John Austinand in the development of his own, more hermeneutic theory of law. The law prescribes behavior — to act in certain ways, and to avoid acting in other ways — and also empowers citizens to use legal institutions and processes for their own purposes through wills, contracts, and the like.
Grundnorm Law and Legal Definition
If under a Hartian analysis grunvnorm accepts the legal system as giving reasons for action, what kind of reasons are those? Is there ggrundnorm alternative to understanding these grundnogm as moral reasons?
Analogously, Hart does not explore in any length what kind of reasons people might think that the law gives them. It is sufficient for Hart that some people treat the law as giving reasons for kwlsen this is a fact for which the descriptive or conceptual theorist should attempt to account.
As Hart sees it, it is not for the theorist of law to be too concerned about what sort of reasons these might be, and whether they are well grounded. However, it is not clear that Hart, or a modern follower of his approach, needs to concede this point.
Why should one assume that one has a moral obligation to do as the law says, simply because the law says so? While it may once have been the accepted view that generally just legal systems create such general moral obligations to obey their enactments, many theorists today have offered strong arguments against such a general obligation.
For example, with etiquette or chess, we understand how a practice can give reasons that are not moral reasons. Perhaps law similarly gives reasons that are not moral reasons. Like many academic theories, views equating legal propositions with, or reducing them to, either morality or descriptions or official action, discount the obvious in the search for the subtle and the sophisticated.
Ultimately, the question is whether it is productive — or, on the contrary, absurd — to think that reasoning is often confined within a particular domain: Tim Scanlon recently defended at length just such a view of reasons and reasons for action in his John Locke Lectures, later published as Being Realistic About Reasons.
I think it is sufficient to the perspective I am trying to elaborate that few of us confuse morality and law.
We may be inclined to overestimate the moral merits of the law, but we still do not confuse the two. Who, besides a strong believer in a Sharia legal system, thinks that law is essentially an instantiation of morality, grounded in divine command or otherwise? In a recent work, Greenberg restated his view in the following terms: Heidi Hurd, in an earlier article, offered a comparable view: Additionally, even if a significant number of people believe that law qua law gives them reasons for action, this may be a matter calling more for a psychological or sociological explanation, 63 rather than a philosophical one.
In the case of Hans Kelsen, this article has offered a reading of his approach as a limited claim about the logic of normative claims: Hart, this article has advocated a simple and unambitious view of legal normativity: Legal norms frequently prescribe what one ought to do or ought not to do.
However, the rush of legal theorists to describe law as thus making moral claims, or predictions about official actions, seems ungrounded and unnecessary. Ensayos en honor a Stanley L. Paulson Universidad Externado de Colombia,pp. I am grateful for the comments and suggestions of Sean Coyle, William A.
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Hans Kelsen – Wikipedia
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