Norms and Facts
·
Facts consist of things and events in the
physical world and revolve around what ‘is’.
·
Norms unlike facts focus on what ‘ought’ to be
and not what ‘is’.
·
X kills Y is a fact. Whether X ought to be
punished for committing murder of Y or not is a norm.
·
Norms are of two types - legal norms and moral
norms.
·
Legal norms are coercive unlike moral norms
which are not.
·
Legal norms arise from validation by another
valid norm.
·
Grundnorm
– The norm on which all other norms are based and beyond which no norm is
presupposed.
Pure Theory of
Law
·
Kelsen calls his theory as ‘pure theory of law’ as
it attempts to distinguish between law and what is not strictly law
·
His theory distinguishes law from facts and
morals
·
The main ingredients of Kelsen’s pure theory are
derived from Kant’s theory:-
o
the world of things (noumena) and the world of
ideas (phenomena);
o
what ‘is’ (sein) and what ‘ought’ to be done or
not done (sollen).
·
When a law is made the object of the law say it
is to provide speedy trials for certain offences. Then the object is a norm as
the act may not be able to always provide for a speedy trial but the enactment
of the act is a fact.
·
A norm need not provide a rule of conduct that
can be known beforehand.
·
Not every expression of will directed to a
person is a norm. Robber threatening a person to handover money a gunpoint is
not a norm.
·
In order for a norm to be objective it must be
authorised by another valid norm.
·
Imputation – Effect of a norm
·
A norm creates a duty to behave in a certain way
by imputing a sanction
to the breach of that duty.
Grundnorm
·
Grundnorm is an interpretation of a set of
facts. It is not derived from facts but is an interpretation of them.
·
Its effectiveness is directly dependent on the
effectiveness of the norms that are derived from it. E.g. – If government carry
out genocidal activities, people will eventually start disobeying these
activities and there will come a time when they will stop obeying the
government itself.
·
Effectiveness is a condition of validity but is
not validity itself.
·
A norm may be valid even when it fails on
occasion to be effective in shaping conduct.
·
Occasional infringement of a norm will not
render the norm invalid rather it is in the nature of norms that they are
capable of being violated, for if a norm is always followed it is not a norm
but a law of nature.
Kelsen on
Revolution
·
In a revolution (Peaceful or Violent) the grundnorm
may be replaced by events such as a military coup or grant of independence from
colonizer to its colony.
·
During revolution even if grundnorm is changed
laws made by previous regime governing citizenry remain unchanged and do so
because of tacit consent of new grundnorm.
·
The content of these norms remains unchanged but
the reason for their validity changes as the previous grundnorm is displaced by
a new grundnorm.
Hart v. Kelsen
·
Kelsen says that the
normativity of law is based on a grundnorm, whose validity we accept through
tacit or explicit consent and by doing so, we to all the consequent norms of
the legal system.
·
Hart on the other hand
says that normativity of law is based in social practise. To know what we ought
to do, we need to use the fundamental rule of recognition which is nothing but
a set of legal criteria that validates a law.
·
Hart's theory is meant as an analytical
description of actual practices, while Kelsen sought a theory purified even of
sociological observation.
·
Hart's view of the normative reduced it to a
combination of certain types of social facts, while Kelsen resisted any
reduction of "normative' to facts.
·
Hart's theory tried to track and explain actual
social practices, Kelsen's theory tended to be more abstract-appropriate for
what purported to be a "pure theory”.
·
Hart's analysis builds on close attention to
actual practices and linguistic usage. On the other side, Kelsen is offering a
kind of logical analysis of law and of normative thinking in general.
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