Basic norm (German: Grundnorm) is a concept in the Pure Theory of Law created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can gain their legitimacy (akin to the concept of first principles). This "basic norm", however, is hypothetical. This has led to criticism from noted authors such as H.L.A. Hart, who refers to the theory as a `needless duplication' of the `living reality' of the courts and officials actually identifying the law in accordance with the constitution's rules. It is mystifying to posit a rule beyond these rules, which adds, superfluously in Hart's view, that the constitution is to be obeyed.
Kelsen also attempted to explain International Law by applying the concept of there being a Grundnorm superior to all the Grundnorms of the state. This theory has been severely criticised by theorists like Hart and Lord Lloyd.
- Hart, p. 246. Hart thinks this is particularly clear where there is no written constitution, as in the United Kingdom, for "here there seems no place for the rule `that the constitution is to be obeyed' in addition to the rule that certain criteria of validity (e.g. enactment by the Queen in Parliament) are to be used in identifying the law. This is the accepted rule and it is mystifying to speak of a rule that this rule be obeyed."
- Hart, H.L.A. The Concept of Law. 1961: Clarendon Press.
- Kelsen, Hans. General Theory of Law and State. 1949: Harvard University Press.
- Hans Kelsen, the Theory of Law and the International Legal System
- The Basic Norm; by Professor William R. Long<
|This legal term article is a stub. You can help Wikipedia by expanding it.|
|This philosophy-related article is a stub. You can help Wikipedia by expanding it.|