Flashcards in Kelsen Deck (11):
A system of interlocking norms (seeks to raise jurisprudence to the level of a genuine science).
Kantian: Application of certain formal categories like time and space that do not exist in nature - but necessary to make sense of the world > Grundnorm
The Pure Theory
Restriction of analysis to positive norms: if a certain conduct (X) is performed, then a sanction (Y) should be applied by an official to the offender.
Rules out all that cannot be objective known.
Law has one function: the monopolisation of force.
Hierarchy of Norms
A complex series of interlocking norms from the most general oughts to the most concrete. Each norm draws its validity from another higher norm, with the validity of all norms based on the Grundnorm.
Does not depend on any other norm, it is outside the legal system (a fiction, usually presupposed). It exists, but only in the minds of the 'juristic consciousness' selected by reference to whether the legal order as a whole is 'by and large' efficacious.
Kelsen seems to say that we need this assumption to understand the legal order (controversial).
Validty and Efficacy
The principle of legitimacy is limited by the principle of effectiveness - the efficacy is a condition of the validity of every norm with in.
How do we test efficacy? Harris: ratio of official acts and acts of disobedience
A general adherence to the Grundnorm: if individual norm generally ineffective then does not lose validity - if never applied it may cease to be valid (cf. civil law systems)
Changing the Grundnorm
When basic norm no longer attracts general support, it may be supplanted by some other basic norm e.g. after successful revolution.
Madzimbamuto: Dias- Grundnorm not dictated inflexibly by effectiveness, but is a political decision about what the courts are willing to accept as the basis for validity.
Raz - The basic norm replaces the sovereign (not a legislative body, but a power conferring norm) but otherwise remains the same as Austin and Bentham.
Critique: Assault on Pure Theory
Is it possible (or desirable?) to exclude moral or political factors? Laski: an exercise in logic but not in life. Surely efficacy can only be measured by sociological considerations that Kelsen aims to keep out?
Critique: Grundnorm as the basis for all other norms
Cannot explain validity of non-rule standards (Dworkin)
Critique: If X then Y
Widely regarded as unacceptably narrow: assumes that the law is coercion (cf. Kelsen thinks the aim is monopolisation of force).
Form is given primacy over meaning