Kelsen The Pure Theory of Law, Chs. 1 and 5

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(NB see lecture notes on Kelsen)

 

Aims to answer “what and how law is”, not what it ought to be.
o It is a “pure” theory as it seeks to exclude moral elements and social facts from its description of what law is.
o By “norm” Kelsen means something that “ought” to occur. It refers to an act by which certain behaviour is “commanded, permitted or authorised”.
o There is a difference between saying something “is” and something “ought to be”.
o He says that laws are norms e.g. theft is punishable by imprisonment is NOT a statement of fact but an instruction to officials that this “ought” to happen : It is a
command/authorisation/permission for officials to do the thing.
o An official’s order is authorised by an act of parliament, whose own authority in turn comes from the constitution, who in turn is authorised to take its form by the historically first constitution, which in turn derives authority from the “basic norm” or “grundnorm”. Law is thus a system of norms, which is defined as having the meaning that something “ought” to happen
both because the actor thinks it ought to happen, AND because it objectively ought to happen
(objective element = authority up the chain to the grundnorm). Hence a gangster’s demand for money is NOT a valid norm, whereas a tax inspector’s demand for payment of tax IS. Thus custom may be a source of law if the constitution allows it to be and the acts which constitute the custom make others feel that they “ought” to do something.
o A positive norm (i.e. a posited law) is saying that a certain behaviour is authorised, forbidden
commanded etc, or simply that X ought (not) to be done.
o To say a norm is valid does not only mean that it is actually applied

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199562688.001.0001/acprof-9780199562688-chapter-2