Introduction to the Norms Part I: Kelsen’s Theory of Normativity
I’ve already said that my Norms first emerged from the strange depths of my imagination in a law lecture when, no doubt, I should have been focusing on other things. As even the brightest law student will tell you, it isn’t always easy to concentrate in law lectures, especially when the subject is jurisprudence, where the very idea of legal philosophy fills most budding lawyers with abject horror, and then, inevitably, boredom. One such lecture introduced us to the legal theorist Hans Kelsen, who’s Pure Theory of Law (“Reine Rechtslehre”) has become a staple of jurisprudential study and was itself a radical modernist legal theory when first published in 1934. Like most legal theorists, Kelsen was trying to establish why law is what it is, how it works, why it is obeyed, and what it says about us as a society, our moral compass and the importance (if any) of religion as a backbone to society’s legal machinery. All fairly irrelevant questions you may think: The law is what the law is and that’s that. And you may be right – it’s certainly a question that went through my mind on a number of occasions when I first started studying jurisprudence. But the subject throws up some very interesting questions which make for a fascinating dinner table conversation, even for the most unwitting philosopher.
Anyway, I digress. The reason why I am telling you all of this at the start of a supposedly innocuous art-based blog is that Kelsen’s theory gave birth, albeit indirectly, to the Norms! Kelsen advanced a theory that the typical legal system is founded upon a system of norms. These norms, he said, were the building blocks of the laws which we have today, and that our laws form part of a hierarchical system of norms, each layer of the hierarchy gaining authority from the previous. Sitting atop this hierarchy is the “Grundnorm” (the ‘basic’ norm). In Kelsen’s theory, all the norms of a legal system would be traceable back through a chain of validity, each norm being authorised by a higher norm, back to the historically first constitution of norm beyond which one cannot go. Getting a bit complicated? Perhaps, and this is undeniably heavy stuff (although for the more enthusiastic philosophers amongst you, Wikipedia provides a fairly concise summary of what Kelsen was going on about). But it was perhaps out of all this complexity that the Norms were born. Because as I sat there in the underground vault that is the lecture theatre of the King’s College London law campus in 2005, my mind boggling at the new theories being advanced our way, drawing those little norm sketches literally got me through the hour. Kelsen’s description of the “Grundnorm” instantly anthropomorphised in my mind into a big fat Norm sitting atop a hierarchy of shaky, acrobatic Norms below him. And from that moment onwards the Norms were born! From then on they started littering my law notes (I’ve included with this blog entry a little sketch I found from the front of my old revision notes). They turned up all over my desk, my diary and my greetings cards. Finally they made it onto canvas,– I’ll start introducing you to them tomorrow.
So there you go, historically we are up to date. I have to say though, putting the complexities aside, Kelsen makes an interesting point. He says that we don’t need to evaluate why the law has authority today – for him, it is an individual law’s hierarchical position within social history which provides that authority, and as a result he is saying we don’t need to question why we should obey the law. We just do it. In his way, he appears to explain away the role of morality or religion as being the backbone of a legal system. And you can understand why he does this, particularly in a society where so many people follow different moral codes. But what do you think? Do we shirk away from killing someone because of religion, or some other moral belief told us it was abhorrent to take another life, or do we refrain from murder, or stealing, or other crimes, purely because we would not want to encourage a society where people were allowed to reciprocate in kind? To be honest I think it’s probably a mixture of the two things. But while these questions appear at first thought a little abstract, to my mind they are becoming all the more important, particularly in the light of the recent UK riots, where the moral and legal fabric of our society seemed to crumble before our very eyes.
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Interesting read. Wasn’t expecting to learn about Kelsen’s hierarchical model in so colourful a way.
Thank you for this!
Thanks Naima! When I was learning Kelsen’s theory at university, I at first found it so mind-boggling that imagining these creatures toppled up in a kind of hierarchical tower was the only way I could make sense of it. It gave birth to a whole raft of illustrations, so I have a large debt to pay to Kelsen! Best wishes and thanks for stopping by.
Excellent. I studied this in Jurisprudence decades ago.
You’re linked here! http://charlescrawford.biz/2017/06/13/who-decides-who-decides/