kelsen

PURE THEORY OF LAW • The pure theory of law is a theory of positive law. It is a general theory of law which offers a theory of interpretation. • As a theory its purpose is to know and to describe its object. Kelsen provides that the theory attempts to answer the question what and how law is not how it ought to be. The theory is a science of law not legal politics.

» On that point kelsen has been understood to call the theory “pure”, because it only describes the law and eliminates everything which is strictly not law. » the theory provides that separation of the other disciplines from the law, is not because it ignores or denies connection with the law, but to avoid a mixture which will obscure the essence of the science of law.

BASIC NORM

» According to Hans, there are two things universally true about law being that it is a system of norms and it is coercive. Norm which derives from Latin word NORMA meaning order, according to Kelsen is something ought to be or something which ought to happen. The norms can command, empower, permit or even derogate. » It is theses norms which form part of the system which in return gives validity of each norm. This means that where there is a bye law gets its validity from another norm being a statute, which will also get its validity from another norm being a constitution which gives the parliament/ legislature power to promulgate statutes. The trend will automatically mean that the constitution should have some norm which it gets its validity from, and the answer to the question would be the first constitution as Kelsen submits.

» It is at that point he had to answer where the same first constitution got its validity from, where Kelsen gave a ground-breaking classical approach in the positivism philosophy, that there ought be a presupposed basic norm that is the basic constitution or the GRUNDNORM. Kelsen put it in this manner; » “if the historically first constitution was posited by the resolution of an assembly, then it is the individuals forming this assembly who are empowered by the basic norm; if historically the constitution arose by way of custom or to be more exact it is the individuals whose behavior forms the custom creating the historically first constitution who were empowered by the basic norm”

» The Grundnorm or the basic norm is the starting point of the chain of legal norms which make up a legal system, and it is at the apex of the hierarchy of legal norms. Others say the grundnorm is the foundation rock of a collapsive pyramid. » The grundnorm is understood as a presupposition or fiction made for the interest of legal science. » The fiction refers directly to a specific constitution writen or unwritten established by and large effective and in so doing it furnishes reasons for validity of the specific constitution and the coersive order created in accord with it » So since it is a presupposition it cannot be tested for validity.

» Kelsen contends the legal norms which are lower on the hierarchy are among others the subjects of areas of the law such as contracts will of which their makers will be acting within legal powers. » It is also here where Hans made reference to the role played by judges in law, by saying that the judgments passed by judges are also known as norms or rather laws as he was of the view that every act of norm application is a norm creation, except for the final carrying out a coercive measure.

» Kelsen identified basic functions of the basic norm as » To empower the first legislator with law creating power » To portray the unity of legal system by giving it coherance and systematic form Hans contended that grundnorm founds the validity of legal order, and for him validity is denoted by system membership, basically the two functions can be understood as first explaining how laws are pieced into the whole legal system.

» It can arises that there be competing basic norms and the issue comes to choosing which one is valid in terms of law. Kelsen’s work provides useful guide in that respect. » The situation usually arises where there has been a successful displacement of the basic norm. Kelsen illustrate change to the basic norm occurring where there has been a successful revolution. » This revolution occurs in an illegitimate way not prescribed in the constitution of the state and it would have to be successful to be regarded as valid. » A successful revolution is one which passes the efficacy test which is basically premised on that people “by and large”, in acquiescence behave in accordance with the laws or norms deriving from the grundnorm. » It does not suffice that there was a constitutional provision which precluded unlawful taking over government or power, as it will fail to bar a successful revolution from getting national validity since the law after revolution is not sought in previous law books but in events occurring.

» Kelsen thus contends“ Even a government that comes to power by revolutionary means or a coup d’ ètat is to be regarded, in terms of international law, as a legitimate government if it is capable of securing continuous obedience to the norms it issues”. » We find the application of the above in the South African case of Matanzima v President of Republic of Transkei were there court refused to invalidate the new constitution as the grundnorm on grounds that it was acquired by a military coup d’etat and used Kelsen approach that the grundnorm was valid on grounds that it passed the efficacy test as discussed above.

» Another case illustrating Kelsen’s theory in relation to the coups is STATE V DOSS AND ANOTHER, wherein the President of Pakistan to maintain peace and order, annulled the constitution and dismissed the cabinets and declared martial laws as national laws. The court in deciding the validity of such laws held that the president’s proclamation constituted an abrupt political change not within contemplation of the previous constitution and it amounted to a revolution. The court defined a revolution as an internationally recognized method of changing the constitution. Finally that the martial laws were a new legal order and valid. » Kelsen’s theory was also espoused in the case of UGANDA V COMMISSIONER OF PRISONS, wherein the unity conference was held to overthrow the regime of Idi Amin, which was successfully achieved through a liberation war and the new government suspended some chapters of the old constitution. The court in determining the validity of such amendment held that the taking over of government and replacement of constitution constituted a victorious revolution which established a new legal order. Further the old constitution was no longer in force and replaced by the new constitution. The old laws can only be valid under the new constitution only when it expressly or tacitly vests validity on them.

» The case of MADZIMAMBUTO V LADNER-BURKE NO [1968] 2 SA 284 the court was also faced with the question of the validity of a new constitution. In that case Ian Smith unilaterally declared Rhodesia an independent state and the Smith Regime purported to repeal the 1961 Constitution by promulgating the 1965 Constitution. Britain protested this change and passed legislation declaring the 1965 Constitution in Rhodesia null and void. The question with which the Rhodesian Appellate Division was facing was whether the new constitution was valid. The Court confirmed its judicial recognition of the Smith Regime and accepted it as a defacto government and reiterated that Rhodesia was effectively an independent state. The basis of the decision was that the Rhodesian constitution was as it is (as Kelsen would put it, a social fact). By contrast, the English Court (Privy Council) relying on the principle of effectiveness opined that Britain was still effectively in control of the colony and the 1961 constitution prescribed the procedure for promulgating the new constitution and such procedure was not followed in the instant case as such the new constitution was invalid.

» As aforementioned Kelsen’s theory provides that law as a system of norms which is coercive. The essence of law is of a organization of force, and law thus rests on a coercive order designed to bring about social conduct. Sanctions by the law are then key in achieving this. » Kelsen holds a idea of law as directives to officials to apply sanctions unlike Austin. It should be noted that for Austin law is a command backed by sanctions give law its validity. For Kelsen it is unnecessary that every law be "backed by a sanction"; it is only necessary that every genuine law shall stipulate or direct a sanction. Perhaps a legal order is best understood as an order to an official of the law. » He rejects that law is a command as that would taint pure law which is what is important, as a command has psychological elements. He also reject it by saying that sanctions cannot as an external factor determine validity of law since according to him validity of law has nothing to do with sanctions. It is provided that it is the sanctions which depend on the operation of law.

» Kelsen treats any breach of legal norm as a “delict”, whether this would normally be described in traditional terms as falling within the criminal or the civil law. Effectiveness of the whole legal system is therefore measured by looking at whether a norm is obeyed and also whether sanctions are applied following disobedience as people by and large will be not acting in accordance with the legal system.

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