If
the Grundnorm was a figment of
Kelsen’s imagination, no doubt Kelsen was imaginative enough to still keep our
interest. Whether in favour or not of his works, many —if not most— legal
scholars after him construct their theoretical castles either using his ideas
or attacking them. I will not duel with
the first group —brevitatis causa.
However, the second group, his detractors are wrong in what is referred to the Grundnorm.
First,
we have to understand the theory of Kelsen as a whole. Secondly, we have to go through
his works —not just his Pure Theory of Law— to have a real grasp of what he
intended to do with the Grundnorm.
Organically understood, his theory about legal orders presupposes no value
judgments. He is not interested in the correctness or not of the law, if a
given law is just or unjust. His only concern is its validity, that special
mode of existence of any particular norm and the juridical order as a
whole. His theory is not political
science or morality.
Undoubtedly,
by following a simple chain of application and creation, we will reach the
highest norm in the given legal order —i.e. the constitutional norm. And here is where the problem we are
discussing starts. For some authors —I follow Hart here for simplicity— we just
need “the word ‘validity’ […] to answer
questions which arise within a system of rules […].” When in presence of
the highest norm or rule, we would not need to presuppose its validity —its origin—
but simply focus on its appropriateness. But, when is a norm or rule appropriate? More
than an argument, it seems a theoretical subterfuge.
Kelsen
himself gives the answer to both, presupposition and appropriateness. Although
he is not interested in value judgments, he distinguishes clearly between a
norm per se and its creation. The
latter is condition sine qua non for
the former, but not its condition per
quam as he makes clear. Therefore, when in presence of the highest norm or
rule of a given legal order we may respect it —it is effective— solely because
we know it is valid —exists in a particular way, without giving much thought
about its creation. So, we either think that norm or rule is appropriate or we presuppose —figment of
our imagination— that something else validates it. Whether we follow one or the
other version, we support the same notion.
On
the one hand, to label anything —in this case, a norm or rule— as ‘appropriate’
means we are giving that thing a value —i.e. we make a value judgment between
different variables; here, the highest norm of a legal order and the legal
order as a whole. On the other hand, to
presuppose the existence of the Grundnorm
implies also a value judgment. For one thing is to support the idea that the
norms have nothing to do with moral values, yet another thing is to maintain
that the act of creation has no positive or negative weight —e.g. what would
happen if the creation of the first constitution was not licit? So, if a
figment of Kelsen’s imagination, then Hart —and other detractors— have either
a more subtle way of presenting the same chimera or we prefer to understand
what has been more analytically translated.
