Mod 7 – Kelsen

Question 1

What are the two major parts of Kelsen’s theory?

Answer 1

Law as a ‘specific technique of social organisation’ and the theory of the Grundnorm

Kelsen’s theory emphasizes the structural aspect of law and its foundational norm.

Question 2

Define the term ‘Grundnorm’ in Kelsen’s theory.

Answer 2

The foundational norm that serves as the basis for the validity of all legal norms

‘Grundnorm’ literally translates to ‘ground norm’ or ‘foundation norm’ in German.

Question 3

What does Kelsen mean by ‘transcendental’?

Answer 3

Outside and independent from experience, facts

This refers to concepts that are not derived from empirical evidence.

Question 4

How does Kelsen characterize law?

Answer 4

As an order of human behaviour that designates a specific technique of social organisation

This reflects Kelsen’s view that law functions as a mechanism to regulate actions.

Question 5

What is the key attribute of law according to Kelsen?

Answer 5

Coercion through the systematic use of sanctions applied by authorized officials

This highlights the enforcement aspect of legal norms.

Question 6

What is a ‘legal norm’ in Kelsen’s terminology?

Answer 6

A direction to an official to apply a sanction under certain circumstances

Kelsen emphasizes that legal norms are primarily aimed at officials rather than citizens.

Question 7

What does Kelsen assert about citizens in relation to legal norms?

Answer 7

Citizens do not have norms directed at them; they commit ‘delicts’ that create conditions for officials to apply sanctions

This distinction emphasizes the role of officials in the legal system.

Question 8

What is Kelsen’s view on the relationship between law and morality?

Answer 8

Law is independent of morality; moral judgments are merely subjective opinions

Kelsen criticizes natural law theories for assuming an objective moral basis for law.

Question 9

How does Kelsen differentiate between legal norms and moral norms?

Answer 9

Legal norms are objective and directive, while moral norms are subjective preferences

This distinction underscores Kelsen’s legal positivism.

Question 10

True or False: Kelsen believes that the description of law prescribes what the law ought to be.

Answer 10

False

Kelsen maintains a clear distinction between the description of law and moral content.

Question 11

What does Kelsen mean by ‘epistemological’ in the context of the Grundnorm?

Answer 11

Making clear how we can know something

This relates to understanding the foundations of legal validity.

Question 12

Fill in the blank: Kelsen’s theory represents _______ legal positivism.

Answer 12

Continental

This contrasts with Anglo-American legal positivism.

Question 13

What is the significance of Kelsen’s legal positivism?

Answer 13

It allows for the identification of law based solely on its form, independent of its content

This approach emphasizes the importance of legal structure over moral implications.

Question 14

What is a ‘delict’ according to Kelsen?

Answer 14

An action by a citizen that creates the conditions for an official to apply a sanction

This term is borrowed from Roman law.

Question 15

What does Kelsen mean by saying that law is a mechanism for making people do things?

Answer 15

Law functions through coercion and the application of sanctions to regulate behaviour

This reflects Kelsen’s view of law as a form of social control.

Question 16

How does Kelsen’s view of law differ from Hart’s rule of recognition?

Answer 16

Kelsen’s Grundnorm serves as a foundational assumption for legal validity, while Hart focuses on social practices

This highlights a key difference between their theories of legal positivism.

Question 17

What does Kelsen prefer to call the first legal norm?

Answer 17

Secondary norm

Question 18

What term does Kelsen use to describe the genuine legal norm?

Answer 18

Primary norm

Question 19

Who can genuinely break the law according to Kelsen?

Answer 19

Officials

Question 20

What happens when a citizen commits a delict?

Answer 20

Triggers the legal power or duty of a judge to punish

Question 21

What is the primary norm according to Kelsen?

Answer 21

Law stipulates the sanction

Question 22

What is Hart’s criticism of Kelsen’s theory regarding sanctions?

Answer 22

Cannot distinguish between a tax and a fine

Question 23

What does Kelsen call the ultimate norm that confers validity upon all other norms?

Answer 23

Grundnorm

Question 24

How do we identify the Grundnorm in practice?

Answer 24

When we cannot trace the chain of validity back further

Question 25

What does Kelsen argue about the validity of laws after a revolution?

Answer 25

All old laws lose their validity

Question 26

What principle does Kelsen state is necessary for a legal system to be valid?

Answer 26

Effectiveness

Question 27

What is the difference between a sufficient and a necessary condition?

Answer 27

A sufficient condition guarantees an outcome; a necessary condition is required for an outcome

Question 28

What did Kelsen say about the laws that continue under a new regime?

Answer 28

They are validated by the new basic norm

Question 29

In the case of The State v Dosso, what did the Chief Justice conclude about effectiveness and validity?

Answer 29

Equated effectiveness with validity

Question 30

What is Kelsen's view on the relationship between law and morality?

Answer 30

Keeps law and morality separate

Question 31

Fill in the blank: Kelsen's theory requires a _______ ultimately resting on a norm.

Answer 31

Chain of validity

Question 32

True or False: According to Kelsen, effectiveness is sufficient for the validity of a legal order.

Answer 32

False

Question 33

What is the legal significance of a revolution according to Kelsen?

Answer 33

Nullifies the old legal order and replaces it with a new one

Question 34

What question did the case decide regarding the revolutionary government?

Answer 34

Did the revolutionary government control? ## Footnote This relates to the doctrine of effectiveness in Kelsen's theory.

Question 35

According to Kelsen, what is necessary for legal validation of revolutionary government's acts?

Answer 35

Effectiveness is necessary, but not sufficient for validity. ## Footnote Kelsen emphasized that mere control was not enough for legal validity.

Question 36

In the scenario where a rebel army seizes power, what should be considered regarding effectiveness?

Answer 36

At what point has effectiveness ceased, and what is the implication for validity? ## Footnote This raises questions about the duration and legitimacy of the government's control.

Question 37

What issue arises from rebels within government imposing a new constitution?

Answer 37

At what point would a new Grundnorm come into being? ## Footnote This highlights the role of judges in determining the validity of the new constitution.

Question 38

What does Kelsen's theory suggest about the creation of a new state?

Answer 38

If there is only one Grundnorm for each legal system, does a new state automatically create a new Grundnorm? ## Footnote This relates to questions of legal identity and status.

Question 39

What is the 'mirror image' question regarding legal systems and revolutions?

Answer 39

Can a legal system 'revive' after a return to the old state before the revolution? ## Footnote This considers historical changes like the Russia–USSR–Russia transition.

Question 40

What does J.W. Harris argue about Kelsen's theory in 'Legal philosophies'?

Answer 40

He argues that the characterization of norms in Kelsen's form provides 'suggestive force' for judges. ## Footnote Harris critiques Kelsen's assumption about legal science being socially useful.

Question 41

What did the Pakistan Supreme Court decide in Jilani v The Government of Punjab?

Answer 41

Kelsen's theory of legal revolution was merely a 'jurists' proposition about law' and did not lay down legal norms. ## Footnote This case reflects a rejection of Kelsen's principles.

Question 42

What is Kelsen's view on the distinction between civil and criminal law?

Answer 42

All laws are directed to officials and the distinction is relative. ## Footnote Kelsen argued that the social technique of law is fundamentally the same in both cases.

Question 43

What is a criticism of Kelsen's view on laws directed at officials?

Answer 43

In practice, laws do not seem primarily directed to officials. ## Footnote Kelsen acknowledges the existence of non-legal norms directing citizens.

Question 44

What is the relationship between legal systems and Kelsen's legal orders?

Answer 44

Legal systems do not change with every unconstitutional change and past laws do not continue merely through 'tacit' testing of validity. ## Footnote This challenges Kelsen's idea of a unique Grundnorm for each legal system.

Question 45

What does Raz argue about the Grundnorm's ability to identify legal systems?

Answer 45

The Grundnorm does not distinguish legal systems if the criticisms of Kelsen's theory are correct. ## Footnote This raises questions about the practical utility of the Grundnorm.

Question 46

How does Kelsen's concept of the Grundnorm relate to normativity?

Answer 46

The Grundnorm is tied to the 'oughtness' or normativity of law. ## Footnote Kelsen's hierarchy of norms leads to the postulation of a basic norm for legal justification.

Question 47

What is the difference between 'social normativity' and 'justified normativity' according to Raz?

Answer 47

'Social normativity' identifies standards based on social acceptance, while 'justified normativity' claims standards are inherently justified. ## Footnote This distinction is crucial for understanding legal theory.

Question 48

Who is supposed to 'do the justification' in Raz's theory?

Answer 48

Judges and legal officials are responsible for identifying and justifying laws. ## Footnote This contrasts with Kelsen's notion of the Grundnorm as a transcendental presupposition.

Question 49

What does 'social normativity' explain according to Raz?

Answer 49

'Social normativity' explains rule-following by stating that the standards are social, meaning that we identify them by referring to actually accepted standards. ## Footnote This refers to the idea that societal acceptance plays a crucial role in understanding norms.

Question 50

What does 'justified normativity' explain according to Raz?

Answer 50

'Justified normativity' explains rule-following by stating that the standards are inherently justified, regardless of social practice. ## Footnote This concept suggests that there are moral or ethical foundations for norms that exist independently of social acceptance.

Question 51

Provide an example of an argument for why killing animals is wrong based on social facts.

Answer 51

Killing animals is wrong because it is actually accepted by people to be wrong. ## Footnote This emphasizes the reliance on societal consensus to determine morality.

Question 52

Provide an example of an argument for why killing animals is wrong based on moral principles.

Answer 52

Killing animals is wrong because it violates animal rights. ## Footnote This argument stands independent of societal views and relies on ethical considerations.

Question 53

Who might be responsible for 'doing the justification' in Raz's theory?

Answer 53

The 'legal scientist' or the individual who accepts the Grundnorm could be responsible for 'doing the justification'. ## Footnote This raises questions about the nature of legal justification and its relationship to individual belief.

Question 54

What does Hart's theory say about the rule of recognition?

Answer 54

The rule of recognition is discovered through an empirical description of what judges and officials recognize as law. ## Footnote This suggests a descriptive approach to understanding legal systems.

Question 55

What does Kelsen's theory specifically rule out in relation to law?

Answer 55

Kelsen's theory specifically rules out the equation of law with any description of social fact. ## Footnote This is a fundamental aspect of Kelsen's legal positivism, which maintains a separation between law and morality.

Question 56

What criticism did Laski make of Kelsen's theory?

Answer 56

Laski dismissed Kelsen's theory as 'an exercise in logic with no application in real life'. ## Footnote This critique highlights the perceived disconnect between legal theory and practical application.

Question 57

What are three distinct questions to consider regarding Kelsen's theory and its application?

Answer 57

* Is Kelsen's theory of no application to 'real life'? * Are theories of legal positivism in general of no application to 'real life'? * Do legal theories have to have practical value to be successful? ## Footnote These questions encourage a deeper analysis of the relevance and effectiveness of legal theories.

Question 58

What is Kelsen's concept of 'ultimate validity'?

Answer 58

'Ultimate validity' refers to the foundational basis of legal norms, often linked to the Grundnorm. ## Footnote This concept is crucial for understanding Kelsen's view of the hierarchy of legal norms.

Question 59

What is the significance of the Grundnorm in Kelsen's theory?

Answer 59

The Grundnorm serves as a transcendental assumption of validity that underpins the legal system. ## Footnote It is the foundational norm from which all other legal norms derive their authority.

Question 60

What is a key distinction made by legal positivism in revolutionary cases?

Answer 60

Legal positivism allows for a sharp distinction between 'political' and 'moral' questions of allegiance to a revolutionary government and questions of legal validity. ## Footnote This distinction is important in understanding how legal systems respond to changes in governance.

Question 61

What do Fuller and Finnis criticize about legal positivism?

Answer 61

They criticize that any theory of law attempting just to 'describe' the legal phenomenon assumes a picture of law that is not true. ## Footnote Their criticism emphasizes the need for law to serve social purposes and underlying ethical considerations.

Question 62

Fill in the blank: Kelsen's theory characterizes law as a 'specific technique of _______'.

Answer 62

social organisation. ## Footnote This highlights Kelsen's view of law's functional role in society.

Question 63

How does Kelsen's theory relate to the effectiveness of law?

Answer 63

Kelsen’s theory of validity is linked to the effectiveness of a legal norm in practice. ## Footnote This relationship underscores the practical implications of legal theory.

Question 64

What does Kelsen's theory suggest about the unity of the legal system?

Answer 64

Kelsen's views suggest that the legal system is unified through a hierarchy of norms culminating in the Grundnorm. ## Footnote This unity is essential for maintaining coherence within the legal framework.

Question 65

True or False: Kelsen believed that morality is essential for the validity of law.

Answer 65

False. ## Footnote Kelsen's theory explicitly separates legal validity from moral considerations.