Mystery and Mystique in the Basic Norm
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00696.x |
| Published date | 01 January 1963 |
| Date | 01 January 1963 |
| Author | Julius Stone |
MYSTERY
AND
MYSTIQUE
IN
THE
BASIC
NORM
I
THE problem of the basic norm of legal orders was raised more than
half a century ago, in the first edition
of
Sir
John
Salmond’s
Jurisprudence
(1902).’
“
There must be found in every legal
system,” said this seminal thinker,
“
certain ultimate principles
from which all others are derived, but which are themselves self-
existent. Before there can be an:‘ talk of legal sources, there
must be in existence some law which establishes them and gives
them their authority.” Salmond added that the English rule that
the Acts of Parliament have the force
of
law
“
is legally ultimate
;
its source is historical only, not legal.” When Hans Kelsen first
directly mentioned the problem in
his
Das
Problem der Souve-
ranitat und die Theorie des Volkerrechts
(1920)
this did not rescue
Salmond’s pioneering thought from oblivion, for Kelsen was
unaware
of
his
predecessor.*
Kelsen’s initial statement of the idea of the basic norm is that
the justification of a sentence such as
“
The murderer ought to be
punished by imprisonment,” cannot be by recourse to an is-
factum, but involves recourse to a norm, an ought, which
ultimately leads back the justification to what Kelsen called the
66
origin-norm
”
(Ursprungsnorm)
or
“
constitution in the legal-
logical sense
”
(Verjassung
im
rechtslogischen Sinne).
“
This
origin-norm,” he said,
‘‘
is the
hypothesis
of every positive legal
system, of every concrete legal
or
state order.” Despite Kelsen’s
1
See Salmond,
op.
cit.,
p.
110.
In the Preface to his
Hauptprobleme der
Staatsrechtslehre
(2nd ed.,
1923),
p.
xv, Kelsen claims to have already fore-
shadowed
his
position in
1913
in his
’‘
Zur
Lehre
oom
ijflentlichen Rechts-
geschaft
”
(1913) 31
Archio. des
of.
Rechts
53,
190,
as
implicit in the distinc-
tion between ‘*the be*ipg’’ and “the becoming”
of
a leoal norm. He also
there claims
%
have presented clearly
”
the concept
ofo‘’
the basic norm
”
itself in his
Reichsgesetz und Landesgesetz
nach
ost,e:reichischer Verfm-
sung.”
32
Arch.
des
iif.
Rechts
202
at p.
216
et seq.
Of
course. without
the distinction developed later between the basic norm
as
the constitution in
the legal-logical sense and constitution in the positive law sense.’’ Kelsen
there also acknowledged
A.
Verdross’ account in
1916
of the basic norm
as
a
hypothesis for comprehending the positive law material, in
a
manner
analogous to
a
hypothesis in natural science.
(Problem
der Rechts-
unterworfenheit des Cesetzgebers
”
(1916)
46
Juristische BZdtter
471
et seq.)
;
as well
as
contributions
to
the basic norm
theory
made
by
L.
Pitamic and
A.
Merkl.
2
In the Kelsenite context we owe the reminder
of
Salmond’s contribution
to
W.
Ebenstein,
The
Pure
Theory
of
Law
(1945).
p.
91.
8
Op. cit.,
at
p. 33n. Kelsen in
1960
credits the doctrine to analysis of the
procedure always employed for knowledge
(Erkenntnis)
of positive law
(Reine
All
this however only underlines the point in the text above.
84
JAS.
1963
MYSTERY
AND MYSTIQUE
IN
THE
BASIC
NORM
35
repeated statements and resti,tements up
to
the present day, his
whole idea of the basic norm still remains shrouded in mystery,
which has produced a wealth of interpretatiims and criticisms.
But in their turn these have bred confusion as often as they have
removed it and have not abated contemporary juristic concern.
On the contrary, the problem of the basic norm has recently been
vigorously and frontally approached by a number of ~'riters.~
It
is because this item is
so
obviously on the current agenda of
jurisprudence, and is obviously in an ill state for consideration,
that we hove felt warranted in publishing this present article. Its
concern is not
t3
criticise Kelsen's substantive thought or to
endorse or differ from the various criticisms of it to which we shall
refer.
It
is rather to expose
some
of
the sources within the body
of Kelsenite expression, both of certain confusions at the heart
of Kelsen's position which have provoked
his
critics, and of the
deepening of these confusions which have often followed their
criticisms. Our purpose, in short, is neither to blaze a trail, nor
to call for a retracing of steps; it
is
the more limited purpose of
clearing a blockage around which there is an increasing threat that
significant scholarly communication must wholly break down.s
I1
The threatening blockage is not, we believe, one single obstacle.
It
is rather the accumulation and entanglement of
a
congeries of
ambiguities, and uncertainties, each of which prevents the
clarification of some of the others. Like a majestic log jam on the
St. Lawrence they tend to turn a spacious highway into a blind
alley, and each log itself from something that moves to its destina-
tion, to a joint inhibitor of all movement whatsoever. The
ambiguities and uncertainties of which we speak are in the
expose's
by Kelsen himself.
It
may be well for this reason to try
to state Kelsen's doctrine of it
in
all
"
purity
"
by expressing the
essential feature of Kelsen's position as to the basic norm without
any critical interpositions, in his own words wherever possible.
In contrast to its early incidental treatment above mentioned,
the basic norm idea is already full-fledged and even central in the
Rechtslehre
(2nd ed..
1960),
p.
209,
here cited as
"
Rechtslehre (1960)
").
Early in his
AIZgemeine
Staatslehre
(1925) 250,
here cited as
I'
StafFslehre
"
(and
cf.
his
Rcine
Rechtskjlre
(1st ed.,
1934),
p.
67,
here cited
as
Rechts-
Zehre
(1934)
"),
he said it corresponds to some extent to the ctncept of the
original
contract or the social contract constituting the State babg the
unity
of
the state order. He does
not
refer at all to Selmond, even in
1960.
And see below, note
35.
4
See the next section.
5
Nor are we concerned with
mere
linguistic or literary problems, of which of
course the best known concerns the fact that Kelsen's
"
basic norm
"
is not
at the
base
but at the
apex
of
the hierarchy of normR, by which he represents
a
legal system. Kelsen's
work
is full of figures of speech, often attractive, if
sometimes misleading. But there is
no
harm in this particular one, save the
uncomfortable sensation of being head over heels.
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