Legal Theory: Kelsen vs. Hart on the Foundation of Legal Systems
The Master Rule and the Unity of Law
The principle of unity in law, alongside completeness and consistency, is key to understanding legal systems. Positivism, exemplified by Kelsen’s fundamental rule and Hart’s rule of recognition, offers different perspectives on this unity. The question is whether this rule is internal to the legal system or an external element.
Hans Kelsen’s Pure Doctrine of Law
Hans Kelsen’s pure doctrine posits a chain of legal norms, where each norm’s legality depends on the one above it. This creates a pyramid-like structure. At the base, norms derive from facts, while at the top, the constitution’s validity is questioned. Kelsen argues that the constitution’s validity comes from a prior constitution, and so on. However, the first constitution’s validity poses a problem. The constituent power, the people, derives its authority from force, a factual element, which disrupts the purity of norms. Kelsen solves this by introducing the masterful norm, a hypothetical basic norm that grants validity to the constitution. This hypothetical basic norm, like Kant’s transcendental conditions of knowledge (space and time), makes legal experience possible. Legal experience occurs when actions align with the law. The validity of law depends on this hypothetical norm, which in turn depends on the effectiveness of the entire legal system. This reliance on effectiveness has led to accusations of Kelsen being a realist and a naturalist positivist. However, the fundamental rule’s function is to command obedience to the constituted power, defining what is considered law.
Hart’s Concept of Law
Hart, influenced by his teacher Austin, diverges from Austin’s view of law as orders backed by threats. Hart differentiates between legal obligations (“our duty…”) and the feeling of obligation under coercion (“I feel an obligation…”). This linguistic distinction reflects the difference between complex legal systems and simple systems like a robber’s command. Hart distinguishes between primary rules (imposing direct obligations) and secondary rules (governing primary rules). The rule of recognition, a key secondary rule, provides order and criteria for identifying other rules. Hart focuses on acceptance and use rather than validity. He criticizes the concept of validity as a formal criterion, arguing that two rules belonging to the same legal system doesn’t solely depend on one deriving from the other. Recognition by courts or institutions is crucial. Hart distinguishes between validation (derivation from a superior norm) and validity (based on recognition). He emphasizes the importance of a procedure for judges to recognize norms and establish relationships between them. Hart’s rule of recognition allows for the identification of rules within a legal system.