Constitution the validity

The quotation is, in fact, a definition of stated in Kelsen's General Theory of State and Law. The reasoning from which the definition stems in his celebrated 'pure theory of law' formulated first in 1911 and revised in its final form in 1964. It is, above all, a theory of positive law, concerned exclusively with the process of defining its subject matter with as much accuracy as is possible. Kelsen advances it as a general theory and not as an interpretation of specific legal norms, although it is intended to offer a 'theory of interpretation' it is designed so as to 'know and describe its subject'.

The theory makes possible the discovery of an answer to the basic question: 'what is the law? ' It does not seek to answer the question: 'what ought the law to be? ' Legal science should be fashioned, according to Kelsen, in terms which will reflect the unique nature of the phenomenon of law. This will involve the building of a framework of concepts having reference only to the law; the 'uncritical mixture of methodically-different disciplines which characterises much legal theory' is to be rejected.

The appropriate methodology of investigation, which will be value-free, will require the interpretation of experience and 'the reduction of multiplicity of unity'; indeed for Kelsen, all knowledge reflected the endeavour to establish unity from chaos. In such an investigation the concept of natural law would have no place. Kelsen viewed the claims of natural law as worthless, based on no more than speculative claims to immutability resting on 'Nature and Reason' concepts which seemed to him to clothe with an objective character that which is non-existent.

The purification of the science of law and the removal of subjective, evaluative criteria and elements of ideology, involve a process of re-appraising the place of 'justice' in any definition of the law. Kelsen viewed the concept of justice as little more than the expression of an irrational ideal representing the value-preferences of an individual or a group. However indispensable the idea of justice may be for the volition and activities of men, it is not subject to cognition. It may be considered 'just' for a general rule to be applied in practice in all those cases where circumstances demand that application.

In this sense justice may be perceived in the maintenance of a positive order by conscientious application of general rules. Let justice be identified, therefore, with legality. But the question of what constitutes justice can not be answered with any scientific precision and is not, therefore, a fruitful subject for the investigation which is to characterise a 'pure theory' of law. * Not only should political and ideological value-laden judgements be expelled from an investigation of law, but also all non-legal extraneous matters are to be considered as adulterants.

Kelsen insisted on the total rejection of those elements of psychology, sociology and ethics which had found their way into jurisprudence. Such 'alien disciplines' had attracted the attention of jurists because they dealt with matters which might be perceived as having a close connection with the law. The connections of this type are to be neither ignored nor denied, but their uncritical use (which Kelsen referred to as 'methodological syncretism') had obscured the true nature of the science of law.

If one were to admit into a precise study of positive law material relating, say, to the economic basis of society, the result would be an admixture which would defy attempts to make a fundamental analysis. The pure theory at which Kelsen aimed is, in his words, 'a science of law (jurisprudence), not legal politics'. The appropriate materials for a study which will lead to a pure science of law are to be found in those 'norms' which have the character of legal norms, in that they make certain acts legal or illegal.

The term 'norm' is used by Kelsen in a very precise sense so that it connotes a standard to which individuals should conform. Legal norms do not merely prescribe certain types of human behaviour, they attach to the contrary behaviour specific coercive acts as 'sanctions'. Kelsen would argue, therefore, that our law does not merely state that dangerous driving is to be avoided; it makes it an offence, under the Road Traffic Acts 1988 and 1991, attracting specified punishments.

The element of coercion, which underpins a sanction, is, according to Kelsen, a vital constituent of the law as he envisages it. Law is 'a coercive order of human behaviour'. Sanctions are not merely of a psychological nature, when used by the law they are 'outward' in that they involve, visibly, a deprivation of the offender's freedom or property. In Kelsen's terms, law is based on norms which stipulate sanctions; hence law may be perceived as 'norms addressed to officials' (such as judges).

These norms are prescriptive of conduct and may be interpreted in the following manner: if A, then B, i. e. , if the circumstances in question constitute A, then B should happen. Thus, if X is not in possession of an appropriate licence, and he imports controlled drugs, then a judge is required to apply sanctions in accordance with the Misuse of Drugs Act 1971. If Y, the owner of a pit bull terrier, allows the dog to be in a public place unmuzzled, a judge may apply the sanctions set out in the Dangerous Dogs Act 1991.

The validity of a given legal norm depends solely, according to Kelsen, on its having been authorised by another legal norm of a higher rank. An administrative order is valid if authorised by statute; the authorising statute is valid if it has been made in accordance with the provisions of a constitution which, in turn, is valid if it has been promulgated by the authority of an earlier constitution. But if, for example, the constitution in question is the first to be promulgated in a new State, then its validity may be considered in terms of what Kelsen describes as a 'basic norm' (Grundnorm).

This a norm presupposed by legal thinking. The basic norm— the final postulate— behind which one can not go, may take a variety of forms; thus, it might be 'coercion of man against man should be exercised in the style and under the conditions determined by the State's first constitution'. A basic norm may be discovered in any legal order; it is viewed by Kelsen as the ultimate source for the validity of all those other norms belonging to the same legal order.

Within a given legal system it should be possible to discern a hierarchy composed of different levels of legal norms, at the apex of which the Grundnorm, valid only because it is presupposed, and providing authority for all other norms within the system. Assume circumstances in which, under appropriate rule emanating from statute, and subsequent to his conviction by a court, X is imprisoned. The act of the prison officer who effects X's actual imprisonment derives its validity from the sentence ordered by the court following X's trial.

The validity of the court's action is derived from an appropriate statute which, in turn, owes its authority to promulgation by the Queen in Parliament. Beyond that promulgation is the law and custom pertaining to the authority of Parliament. Beyond that is a final, basic, norm, relating to the acceptance by the community of the overriding nature of Parliamentary pronouncements embodied within statute. In applying statute law in X's case, the judges are, in Kelsen's terms, 'concretising' the general norms controlling that case; the decision in X's particular case constitutes an 'individual norm'.

Where the administrative organs within a legal system apply general norms to a particular case so that an administrative decrees results, the individual norms created constitute 'the law'. Kelsen distinguishes the 'effectiveness' of a legal norm from its 'validity'. The term 'validity' implies that a legal norm should be obeyed and should be applied in given circumstances. 'Effectiveness' means that, in practice, the norm is actually obeyed and applied. In his revised version of the pure theory, Kelsen stated that a norm which is not obeyed by anyone anywhere, i.e. Which is not effective at least to some degree, can not be regarded as a 'valid' norm.

The implication is that although a legal norm requires authorisation by a higher norm, a further condition of its validity is 'a minimum of effectiveness'. Hence, within a community, universal and total obedience to the basic norm is not essential; there must be within the community, however, a sufficiency of adherence to that basic norm, allowing it to be effective in practice. The 'principle of legitimacy' is restricted by 'the principle of effectiveness'.

The efficacy of the total legal order is a necessary condition for the validity of every single norm of the order'. 7. NORMS AND THE STATE * The pure theory stresses the concept of law as possessing to moral connotation whatsoever; a decisive criterion in law is derived from the 'element of force' underlying sanctions. The apparatus of the law, its courts and other legal institutions, possess the capacity to protect any type of political structure. (Law may be thought of as a highly specific technique of social organisation).

Further, the law is all embracing: in effect, there is no human behaviour which, as such, is excluded from being the content of a legal norm. From this, Kelsen suggests the identity of the State and the law. The State is a political organisation expressing a legal order; it is governed by law (a State not governed by law is, says Kelsen, 'unthinkable'). We may consider that State as a totality of the norms within a hierarchy; it is nothing other than 'the sum total of norms ordering compulsion' and is, therefore, co-extensive with the law.

The State is the law, and the traditional dualism of 'law v State' can no longer be maintained. 8. CONCLUSION (PURE THEORY AS EXPRESSION OF POSITIVISM) * The pure theory has been described as 'perhaps the most consistent expression of positivism in legal theory'. Its links with classical positivism and its exponents-Hume, Bentham and Austin- are clear. Rejection of natural law, concern for form and structure, a separating out from legal theory of the social and moral content of law, are obvious in Kelsen's analysis.

The pure theory represents, according to Friedmann, 'a quest for pure knowledge in its most uncompromising form, for knowledge free from instinct, volition and desire'. Kelsen's task was to discover what he considered as the true essence of the law and, as a consequence, to reject all that which is clearly in flux or merely accidental. The result is a theory which carries the positivist analysis to an advanced stage and which treats the law, in Bodenheimer's phrase, 'as though it were contained in a hermetically-sealed container'.

The pure theory attempts to see law as a systematic, unified concept; a legal order is presented in sparse terms as a system of normative relations whose unity stems from the one reason for the validity of norms- a fundamental norm. The contribution of the pure theory to an understanding of law rests in its enunciation of the relation between the fundamental norm and other, lower norms within the society; it does not pronounce on the 'desirability' of the fundamental norm, for that is a task for the political scientist, not for the jurist.