Basic norm
Encyclopedia
Basic norm 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.
Pure Theory of Law
Pure Theory of Law is a book by legal theorist Hans Kelsen, first published in 1934 and in a greatly expanded second edition in 1960. The second edition appeared in English translation in 1967, as Pure Theory of Law, the first edition in English translation in 1992, as Introduction to the...
created by Hans Kelsen, a jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
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
First principles
In philosophy, a first principle is a basic, foundational proposition or assumption that cannot be deduced from any other proposition or assumption. In mathematics, first principles are referred to as axioms or postulates...
). 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.