The most important pragmatic facet of the Grundnorm is that it is the basis of validity of a normative order (Geltungsgrund). How do we get to the Grundnorm as solution to the problem of the basis of validity? Alexy’s answer is that ‘[i]n order to reach the Grundnorm, one only need ask “Why?” a few times.’17 The ‘validity- regressus’ is Kelsen’s standard method of demonstrating the ultimate source of validity. If one asks, ‘[w]hy is a norm valid, what is its basis of validity?’18 and if one observes the Is–Ought dichotomy (i.e. views norms as norms), the basis of validity for a norm can only be another norm, which authorises the creation of that norm.19 This is the conceptual core of the Stufenbau theory (Section 5.5.2). If someone were to ask, for example, why a judgment of a municipal penal court is
14 Walter (1993) supra note 11 at 85.
15 ‘die Grundnorm stehe bei Kelsen ganz allgemein für die Kategorie des Sollens’; Heidemann (1997) supra note 11 at 147; referring to: Stanley L. Paulson, Lọòt sich die Reine Rechtslehre transzen- dental begründen?, 21 Rechtstheorie (1990) 155–179 at 170; interpreting: Kelsen (1960) supra note 2 at 205 (Ch 34 d).
16 Paulson (1993) supra note 11 at 57; Raz (1979) supra note 7 at 48
17 ‘[u]m zur Grundnorm zu gelangen, braucht man nur einige Male “Warum?” zu fragen.’ Alexy (1992) supra note 6 at 155.
18 ‘[w]arum gilt eine Norm, was ist ihr Geltungsgrund?’ Kelsen (1960) supra note 2 at 196 (Ch 34 a).
19 Kelsen (1960) supra note 2 at 196 (Ch 34 a).
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valid, the answer might be that the Penal Code has authorised the judge to create a norm. If that person were to persist and ask why the Penal Code, in turn, is valid law, the answer might be that its creation was authorised by the constitution.
The answers might proceed from that constitution to a previous constitution until we were to come to a positive norm that is no longer so authorised, the historically first constitution (Section 6.3.1).20
This validity-regressus founds the membership of norms in a normative order.
Through an authorisation, higher norms are the ‘source’ of the lower norms.
A norm’s validity is its ‘existence’ as ideal and its bindingness as norm, as claim to be observed. This regress must end at the highest positive norm. The highest positive norm, in turn, was not created by way of a positive authorisation.21 Yet how could the first positive norm be created (based)?22 Only a capstone will avoid a regressus ad infinitum and found the validity of the whole normative order23 without itself needing such a foundation. Only an expression of pure Ought can do this – an expression of the very idea of ideal. And this is the genius of Kelsen’s Grundnorm: it is self-referential.24 It redirects the question into itself by making the assumption of validity.25 In cognising norms as norms, in cognising norms as a normative order, we act as if the norm or normative order were valid.
‘On the precondition [assumption] that it is valid, the whole legal order under it is valid.’26
In ascending the legal structure this topos of finding the ground of validity of one legal norm in another legal norm becomes habitual and leaves its imprint in the inert parts of the legal mind. When we reach the edge of the legal system and stare into the legal void the basic norm is nothing but the afterimage, the photogene of this topos that the tired juristic eye projects into this legal void. As an afterimage the basic norm is but the form
20 Kelsen (1960) supra note 2 at 203 (Ch 34 c).
21 Geert Edel, The hypothesis of the Basic Norm: Hans Kelsen and Hermann Cohen, in: Stanley L.
Paulson, Bonnie Litschewski Paulson (eds), Normativity and norms. Critical perspectives on Kelsenian themes (1998) 195–219 at 213.
22 Kelsen (1960) supra note 2 at 197 (Ch 34 a); Jürgen Behrend, Untersuchungen zur Stufenbaulehre Adolf Merkls und Hans Kelsens (1977) 64.
23 Alexy (2002) supra note 13 at 192; Edel (1998) supra note 21 at 213.
24 Stig Jứrgensen argues that it can even be called ‘tautological’. Stig Jứrgensen, Grundnorm und Paradox, in: Werner Krawietz, Helmut Schelsky (eds), Rechtssystem und gesellschaftliche Basis bei Hans Kelsen (1984) 179–191 at 187–188.
25 Alfred Verdross, Zum Problem der vửlkerrechtlichen Grundnorm, in: Walter Schọtzel, Hans-Jỹrgen Schlochauer (eds), Rechtsfragen der internationalen Organisation. Festschrift für Hans Wehberg zu seinem 70. Geburtstag (1956) 385–394, reprinted in: Hans Klecatsky, René Marcic, Herbert Schambeck (eds), Die Wiener rechtstheoretische Schule. Ausgewọhlte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross (1968) 2203–2212 at 2203.
26 ‘Unter der Voraussetzung, daò sie gilt, gilt auch die Rechtsordnung, die auf ihr beruht.’
Kelsen (1934a) supra note 2 at 66; also: Hans Kelsen, General theory of law and state (1945) 111;
Kelsen (1960) supra note 2 at 201 (Ch 34 c); Kelsen (1979) supra note 2 at 206–207 (Ch 59 I d).
Discussions on whether the Grundnorm is properly speaking a Hypothese, Hypothesis, fiction or assumption are not particularly fruitful and other scholars’ views on this point will not be discussed.
If anything the Grundnorm is sui generis (infra).
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that was too often seen, it is what remains of the law when the positive law is deprived of all its possible content, it is the pure form of the positive law . . .27
This merely hypothetical foundation of a legal order – of any normative order, be it positive or fictional – is the only possible foundation under the dichotomy of Is and Ought, because the claim to be observed cannot be absolute, only relative. The claim to be observed of norms is relative and the claim of one normative order – one normative order’s validity – is not better than that of another.
Because the Grundnorm is only assumed to be valid, it has a special status as a norm. (a) It certainly cannot be a positive norm, for such a norm requires a real act of will, which by definition does not exist for the Grundnorm.28 Also, the Grundnorm has no basis in another norm, and thus could not be validly created as a positive norm in a positive normative order.29 (b) Maybe it is a fictional norm (Section 6.2.2)? A fictional norm, however, requires a real act of thought to presume a (fictional) act of will in order to create a fictional norm. The Grundnorm has no act of will whose sense it is, whether positive or fictional. It is true, however, that the presupposition by anyone cognising the normative order as normative order30 comes close to the creation of a fictional norm.31
(c) The Grundnorm has a unique function which necessitates a sui generis status in normative theory, a status that is not easily described and which defies neat classification which some have found hard to accept.32 The Grundnorm is a third kind of norm. Even though it is the foundation for the validity of the whole normative order under it, it does not create the law under it in the same sense as a positive empowering norm would. We presuppose that one ought to behave as the historically first constitution prescribes.33 This presupposition, the content of the Grundnorm, is directed towards the highest positive norm, not the other way around.
Its presupposition for this or that norm is not compulsory in the sense that there is a norm ‘x’ which has a Grundnorm above it.34 If that were so, we could ask why the ‘Grundnorm’ in this sense is valid. No, we presuppose the Grundnorm at the point
27 Kletzer (2004) supra note 10 at 63–64.
28 Behrend (1977) supra note 22 at 64–65.
29 Raz (1979) supra note 7 at 50.
30 Kelsen (1960) supra note 2 at 208–209 (FN *) (Ch 34 d).
31 Kelsen (1979) supra note 2 at 206–207 (Ch 59 I d); Norbert Leser, Die Reine Rechtslehre im Widerstreit der philosophischen Ideen in: Hans Kelsen-Institut (ed.), Die Reine Rechtslehre in wissenschaftlicher Diskussion. Referate und Diskussion auf dem zu Ehren des 100. Geburtstages von Hans Kelsen von 22. bis 27. September 1981 abgehaltenen internationalen Symposion (1982) 97–104 at 102.
32 Heidemann (1997) supra note 11; Carsten Heidemann, Geltung und Sollen: Einige (neu-) kantianische Elemente der Reinen Rechtslehre Hans Kelsens, in: Robert Alexy et al. (eds), Neukantianismus und Rechtsphilososphie (2002) 203–222 at 204; Priester (1984) supra note 6.
33 Kelsen (1979) supra note 2 at 206 (Ch 59 I b).
34 Walter (1992) supra note 11 at 54–55.
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of the highest positive norm, because in order to be valid a norm has only to be cognised as a norm.
This special status and the quasi-paradoxical function in authorising the lower norms while adapting to its lower norm (rather than the other way around) is explained by the Grundnorm being a condition for cognition (Erkenntnisvoraussetzung).35
The Grundnorm founds the validity of the legal order only in a very narrow sense. As Kelsen . . . has himself argued, the Grundnorm is primarily the presumption of the validity of the constitution. As such it cannot be the basis [justification] of the validity of the constitution.36
Heidemann’s claim above can only be shared partially, for the presupposition of validity is enough justification for validity if the Grundnorm is seen as a tool for the cognition of the realm of the Ideal. But it is a norm too – and that creates its sui generis character. The tool for the cognition of the normative is itself the purest expression of the Ideal that is norms. But here we have reached the limit of what the second manifestation of the Grundnorm can tell us. We are already describing the dichotomy of Is and Ought (Section 7.2).