Jurisprudence

Tutorial 8

Kelsen

We will divide the class into roughly half. When I point to the first half, raise your hands and say "Aye". When I point to the second half, raise your hands and say "Nay". Cool. So, did we just pass a new law? So then why is it a law when a bunch of folks do it in the parliament buildings?

That's right. We don't have the authority. And what is it that gives the politicians the authority? The Constitution. And what gives the Constitution the authority? Well, nothing. It's the highest law in the land.

A father says to his child, "you must go to bed." "Why?" "Because I say so and you must obey me." "Why?" If they are a religious household, the father might well reply, "Because God says so." So long as both father and son believe in their God, then that is the end of the story. There is no point in asking who gave God his authority.

A corporal says to a private: "Drop and give me five pushups." Why?" "Because I say so." "Who gives you the authority?" The lance-corporal. And him? The lieutenant, etc. Up the chain until we reach the Military Commander. And him? No one.

Kelsen says that for each rule (which he calls a norm), there is a norm which creates it. Finally we get to the grundnorm -- the basic rule which gives all other rules its validity in that system.

Kelsen says he is only interested in the pure theory of law, so he is not actually interested in the content of the grundnorm. Nor is he interested in what happens outside the system. These factors are irrelevant to his theory.

It is possible to study constitutional law, religious law or military law as a closed system. In each, there is a pyramid of authority with one basic norm at the top. So the religious text authorizes many fathers to look after their children. The military commander authorizes many subcommanders and subsubcommaners. The Constitution authorizes Parliament to authorize several different ministers to run their ministries, etc. It is not necessary to discuss the source of authority of the commander, religious text or Constitution.

For this reason, we do not care about what came before the Constitution! We only care about what the Constitution is now. Kelsen says that many Constits came about because of revolution, while some came from the peaceful process of independence. We will look at this more later.

Kelsen, like several other philosphers we've seen, also distinguishes between an internal and external point of view. [Who were the others? Hart, and Holmes (Legal Realism section)]. He sees a judge as having an internal function whereas a legal scientist has an external function. The judge must use the norms to make new norms. The scientist can only report on what is actually happening. Does this remind you of Llewellyn's theory? You can say what the rules are, but that does not tell you what will happen when the case gets into court. All you can do is look back on it later and say what actually ended up happening. [Remember Riggs v Palmerfrom the Legal Realism worksheet. The scientist would know there are two rules: 1) A testator's wishes should be followed. 2) A person should not profit from his own wrong. The scientist can predict what will happen, but he might be wrong! Only the judge can say which rule will actually apply. The scientist is limited to writing about it later. His role is observer only.]

What is the difference between Hart and Kelsen?
At the basis of Hart's rule is a _social_ order, and law ultimately rests on customs. So he incorporates these customs into his study of law. Kelsen tries for a pure theory of law, so he separates law from social studies. It could be that the grundnorm is valid because of custom, but for him, this is outside the scope of his theory.

Hart's rules are empirical. They can be determined. Do you remember our list of the rules of recognition in our society? Constitution, parliamentary acts, judgments, and customs.

Hart's secondary rules relate to official custom only, and is not a standard necessarily shared by the broader community. There is sometimes a disconnect between the officials and the general population. How many of you can tell me anything about the law governing airplane flight paths in your country? Or about import duties on obscure items? In fact, how many of you had even read the laws of your country before you got to law school? Don't you find that most West Indians know more about the US Constitution than about their own? In Hart's theory, the general population knows the primary rules but sometimes not even those.

Validity of Norms
Notice that Kelsen's legal validity is always relevant to a time and place. A law enacted in Brazil has nothing to do with laws enacted in Barbados. The laws in Barbados a hundred years ago do not necessarily have force today.

So is international law a dualist or monist system? It is dualist in the sense that international treaties must be incorporated into our law before they can take effect. But it is monist in the sense that we recognize other States and they recognize us. This suggests that there is some overarching rule or norm which is above statehood. But if this norm is above our Constitution, then is our Constitution really a grundnorm? In fact, Kelsen is a monist. But how does this work given that international law is not a simply rule but a whole mishmash of stuff?

Efficacy of the Grundnorm
Notice too that validity is different from efficacy. Does a law have to be efficacious in order to be valid? [Efficacious = producing results]. The government of your territory enacts a new law about behaviour during ice storms. No one has been punished under it. It is valid, but is it efficacious? Can we say that if no one has been punished then a law must be clearly working? Or is it clearly not working?

So a norm may be valid, but does not necessarily have to be efficacious.

However, the grundnorm must be efficacious. Otherwise it would have no validity. If it wasn't working, it wouldn't have any power. Kelsen says that we can presuppose that the grundnorm is efficiacious.

But where does one norm start and another begin? Our Independence was authorized by an Act in England. Do we recognize this Act? But then the English Law would be higher than our Constitution, and our Constitution would no longer be a grundnorm. But if we don't recognize the English Act, then our Constit basically sprang from nowhere. Does it need something to give it authority? This is basically why Kelsen says that it doesn't matter what happened a minute before the grundnorm came into effect -- it is irrelevant for the purpose of study. In fact, grundnorms usually start either through peaceful independence, or through revolutions.

The Revolutionary cases
This question is explored in the constitutional cases Andy Mitchell from Grenada and Uganda v Commissioner of Prisons, ex p Matovu (1966). In the latter case the judge said, "Applying the Kelsenian principles ... our view is that the 1966 Constitution is a legal valid Constitution and the supreme law of Uganda ... The 1962 Constitution abolished as a result of victorious revolution does not longer exist.

Read Professor McIntosh's criticism of the Grenada Court's decision in the Andy Mitchell case. What really happened?

1974 -- Grenada became Independence. Established a Constitution and the Court, which we will call the Constitutional Court.
1979 -- The People's Republican Government (PRG) overthrew of the government. They suspended the Constitution and also the Constitutional Court. They abolished Appeals to the Privy Council and established their own Court.
1983 -- There was another revolution led by Bernard Coard and Andy Mitchell. They overthrew the PRG and killed some of its members. Combined forces from the US and other Caribbean Islands invaded Grenada and restored order. The Governor General restored the Independence Constitution, but expressly excluded the sections relating to the Constitutional Court. Instead, the government at the time decided to allow the PRG Court to continue.

When Andy Mitchell and the others were brought before the Court, they challenged it on the grounds that it had no authority. It was not the Constitutional Court, but had been set up when the Constitution was suspended. They said that it was their Constitutional right to be heard by a properly set up Court. The Court used the doctrine of necessity to hold that they indeed had the authority to hear the case. What were their other options?

They could have adjourned until the Executive Branch of Government or Legislative put the necessary laws into place. But should the country be without a functioning Court even for one day?

They could have held that the PRG was not a legal government so that they were not a legal Court. But is this a real option for a court during a revolution? Should all the judges resign in protest, possibly endangering their own lives? And if they failed to criticize the government during the revolution, can they do so retroactively? (This issue was raised in some of the post-World War II cases which dealt with whether the Nazi laws should be enforced.)

They could have said that the question of legitimacy was not a Legal question, but a Political one which only the Executive branch could answer. This was what happened in the case Luther v. Borden, 8 U.S. 1 (1849). Although the Constitution authorizes the Judiciary, Legislative and Executive as separate arms, it is the Executive which builds the Courts, pays the officials and enforces the judgments. Therefore it should be the Executive which says whether the government or Court is legal.

Should the Court even have mentioned Kelsen? Under Kelsen's own theory, the judges are internal to the system and Kelsen is an external scientist. He has a model of society, but there is no way of knowing whether the model is correct. In this class we have studied several models of law by several brilliant theorists. Why should the Court favour one model over another? Would Kelsen himself have approved?

Your Essays
How much time do you need to give the revolution before you decide whether it is successful? Must there be international recognition of the government? Right now, in Libya, the UN has recognized the revolutionary government. Does this mean anything? How does Kelsen’s theory fit into the dualist/monist debate? Are there any criticisms of Kelsen? Are there any theories that might better explain the revolutionary cases?

[Remember in our first tutorial, I referred to myself as Queen Nailah? Most of you didn't believe it. But what if we had, as a group, decided that we should all break off from Barbados and set up the Republic of Robinson in the law faculty. What if we were successfully able to fend off the Barbados Defence Force and all other comers, and establish lines of communication with the outside world. Would we be sovereign if Barbados accepted us but not the rest of the world? Would we be a country if the rest of the world accepted us but not the government of Barbados? What if we created a Robinson Republic Court of law but the judges insisted on applying the laws of Barbados? How if no-one recognised us but we stubbornly dug our heels in, having enough ammunition and supplies to last us a hundred years?]

You should also mention Prof. McIntosh’s complaint that the theory does not distinguish between legitimacy and validity. In other words, the theory does not take into account whether the laws are moral and just (legitimate). This is a natural law criticism of this positivist theory. Just because a band of revolutionaries has taken over, it is deserving of loyalty and respect?

Useful links:
http://plato.stanford.edu/entries/lawphil-theory/
http://www.drbilllong.com/Jurisprudence/KelsenII.html
http://lawweb.usc.edu/users/amarmor/reading/kelsen%20general%20theory%20of%20law%20and%20state.pdf
http://plato.stanford.edu/entries/legal-positivism/