Archives

by Dr Shivaji Felix

(Continued from yesterday)

The Basic Norm or "Grundnorm".

In his well known work, General Theory of Law and State (1946) Kelsen, referring to the "Grundnorm", states as follows (see, especially, pp. 116 -117):

"The ultimate hypothesis of positivism is the norm authorizing the historically first legislator. The whole function of this basic norm is to confer law-creating power on the act of the first legislator and on all the other acts based on the first act.

To interpret these acts of human beings as legal acts and their products as binding norms, and that means to interpret the empirical material which presents itself as law as such, is possible only on the condition that the basic norm is presupposed as a valid norm. The basic norm is only the necessary presupposition of any positivistic interpretation of the legal material."

"The basic norm is not created in a legal procedure by a law-creating organ. It is not - as a positive legal norm is valid because it is created in a certain way by a legal act, but it is valid because it is presupposed to be valid; and it is presupposed to be valid because without this pre-supposition, no human act could be interpreted as legal, especially as a norm-creating act."

The question now arises as to how and when the Grundnorm changes.

The Change of the Grundnorm in a Revolutionary Context

In General Theory of Law and State (1946) Kelsen demonstrates the significance of the Grundnorm in a revolutionary context (see, especially pp. 118-119). Kelsen illustrates the point in the following manner: "Suppose that a group of individuals attempt to seize power by force, in order to remove the legitimate government in a hitherto monarchic State, and to introduce a republican form of government.

"If they succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behaviour the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order.

It is now according to this new order that the actual behavior of individuals is interpreted as legal or illegal. But this means that a new basic norm is presupposed. It is no longer the norm according to which the old monarchical constitution is valid, but a norm according to which the new republican constitution is valid, a norm endowing the revolutionary government with legal authority.

"If the revolutionaries fail, if the order they have tried to establish remains inefficacious, then, on the other hand, their undertaking is interpreted, not as a legal, a law creating act, as the establishment of a constitution, but as an illegal act, as the crime of treason, and this according to the old monarchic constitution and its specific basic norm."

Kelsen argues that the change of the "Grundnorm" can be discerned by reference to the principle of efficacy. He makes the following observation in this regard: "If we attempt to make explicit the presupposition on which these juristic considerations rest, we find that the norms of the old order are regarded as devoid of validity because the old constitution and, therefore, the legal norms based on this constitution, the old legal order as a whole, has lost its efficacy; because the actual behavior of men does no longer conform to this old legal order. Every single norm loses its validity when the total legal order to which it belongs loses its efficacy as a whole.

The efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. A conditio sine qua non, but not a conditio per quam.

The efficacy of the total legal order is a condition, not the reason for the validity of its constituent norms. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way.

They are valid, however, only on the condition that the total order is efficacious; they cease to be valid, not only when they are annulled in a constitutional way, but also when the total order ceases to be efficacious.

It cannot be maintained that, legally, men have to behave in conformity with a certain norm, if the total legal order, of which that norm is an integral part, has lost its efficacy. The principle of legitimacy is restricted by the principle of effectiveness."

The Change of the Grundnorm in a Democracy

Kelsen's theory provides a sufficient rubric to explain what happens when the Grundnorm changes in a "technical" legal sense in a country with a strong democratic tradition in a non-military context. Neil MacCormick in his work, Questioning Sovereignty (Oxford: Oxford University Press, 1999), at p. 93, referring to the debate whether a constitutional revolution took place in Britain in 1972, states that "Kelsen was right in thinking that any fundamental norm underlying the whole of legal order has to be conceived as external to the constitution itself."

Examining what happened in Britain, when the European Communities Act was enacted in 1972, MacCormick poses the following questions (at p. 79): "Was there a revolution in Britain in 1972? Was the constitution then overthrown, not by violence but by stealth, when the Heath Government procured the enactment by a narrow majority of the European Communities Act 1972? Was the referendum of 1975 a belated democratic legitimation of a revolution already accomplished?

Or did the revolution remain on hold until the House of Lords finally decided in Factortame v Secretary of State for Transport that traditional parliamentary sovereignty had been abandoned, and a later Act of Parliament might be disapplied to honour a commitment to European Community law confirmed by the earlier?"

MacCormick discusses Sir William Wade's robust support for the revolution thesis (see, e.g., Sir William Wade, "Sovereignty Revolution or Evolution?", (1996) 112 Law Quarterly Review 568, at p. 574).

Wade does not suggest that a revolution has taken place in the sense that there was bloodshed and violence and tumbrels rolling to the guillotine but, on the contrary, seems to suggest that there was in fact a technical revolution in the legal sense.

It is Wade's contention that the change effected to the fundamental rules of the British constitution in respect of Parliament's sovereignty was such that it could not have been authorised by the constitution as understood prior to 1972.

Commenting on Wade's analysis of the technical revolution that had taken place in Britain in 1972, MacCormick states as follows (Questioning Sovereignty (Oxford: Oxford University Press, 1999), at p. 80): "This change was one that could not have been itself legally warranted under the former understanding of the constitution.

Accordingly, it could only have come about by a judicial decision to change the constitution or to acquiesce in a change made by the 1972 Parliament, despite the fact that the decision to make the change lacked authority in or under the constitution as that had long been understood up to the moment at which the change was made."

MacCormick conclusion, a view not universally shared and certainly opposed by Sir William Wade, is that there was no legal revolution in Britain in 1972 even in the technical legal sense (see, pp. 94 95). Relying on H L A Hart's analysis MacCormick explains that the changes effected in 1972 resulted in the use of the power of change to add a new criterion of recognition to the rule of recognition.

This does not, however, detract from the fact that a change could have been effected to the rule of recognition (in terms of Hart's analysis) or to the Grundnorm (in terms of Kelsen's analysis) using a technical legal revolution rather than one involving bloodshed.

The First Republican Constitution of Sri Lanka was the consequence of a technical legal revolution resulting in a change in the Grundnorm. The, then, constitution was adopted by a Constituent Assembly specifically summoned for the purpose. The procedure adopted for the enactment of the 1972 constitution was clearly illegal in terms of pre-existing law.

Adverting to the legality of the Constituent Assembly and the 1972 constitution, L J M Cooray in his work Constitutional Government in Sri Lanka (Colombo: Lake House Investments, 1984), at p. 246, observes as follows: "Was the Constituent Assembly legal? The answer is clear from what has been said.

The question of the legality of the Constituent Assembly does not arise. One might just as well ask: Was the American War of Independence legal? Was the Glorious Revolution of 1688 legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution."

"The ultimate question is, - is the new Constitution legal? And this is initially a political [question]. In course of time it becomes legal if it is accepted by (i) the people, (ii) the courts and (iii) the administration."

Specifically referring to the legality of the 1972 constitution, L J M Cooray comments (at pp. 246 247) as follows: "Is the Constitution drafted by the Constituent Assembly legal? This question has been answered in the above analysis.

It could be answered by posing the question does the stigma of illegality apply to the United States Constitution or to the Bill of Rights and the Acts of Settlement which followed the 1688 Revolution? The 1688 Revolution is referred to as the Glorious Revolution and the Bloodless Revolution."

Providing a summation of the principles involved L J M Cooray states (at p. 247) that "[t]here are two methods of constitutional reform the legal method and the extra-legal method. Extra-legal constitutions arise consequent to a revolution or a revolutionary process.

The establishment of a Constituent Assembly without reference to the existing legal order was a revolutionary act. The deliberations of such a Constituent Assembly were part of a revolutionary process and it is irrelevant to ask whether it was legal.

A Constituent Assembly may adopt a Constitution. The validity of such a Constitution or indeed any Constitution does not depend on law but is based on an "ultimate legal principle" or a "fundamental postulate of a legal system."

In non-legal language it may be said that the validity of a Constitution, is initially a political fact and legality is derived from acceptance of the Constitution by the people, the courts and the administration."

Referring to the use of a referendum to signify acceptance by the people and the failure to resort to such a device in 1972, L J M Cooray observes (at pp. 244-245) as follows: "It would be a natural demand for a new Constitution to be placed before the people in a referendum, in countries where there is a tradition and constitutional practice of resort to referenda in relation to important issues.

Thus the Australians or the Swiss would think it natural and indeed essential, that a new Constitution be referred to the people because that is a part of their Constitutional ethos. But though there was demand in some circles that the Constitution of Sri Lanka be placed before the people in a referendum, this was ignored by the members of the Assembly.

One of the reasons why they were able to avoid this was because there was no constitutional tradition of resorting to referenda."

"Acceptance by the people may be signified by a referendum - but it may be manifested in other ways peaceful acceptance by the people, the courts and the administration, and the mere fact that the draftsmen of the Constitution were the elected representatives of the people."

Thus it is clear that constitutional change can be effected either by using the existing constitutional practice or by way of an extra-constitutional device. An extra-constitutional device used for the purpose of effecting constitutional change, in a country that wishes to continue its democratic tradition, results in a legal revolution, albeit, a bloodless one.

The test of validity of the new constitution, brought into being extra-constitutionally, even in a vibrant democracy, is not one based on legality but efficacy. If the new constitution is accepted by the people, as signified by the result of a referendum (if this is part of the constitutional ethos of that country), the courts and the administration, then, it would be difficult to argue that such a constitution has failed to satisfy the test of efficacy.

In such a situation it would be fair to argue, in terms of Kelsen's analysis, that the old Grundnorm has, indeed, been replaced by a new Grundnorm on which the validity of the new constitution rests.

It must be clearly understood that an extra-constitutional device is not the only way in which a constitution could be changed. Constitutions have often been changed in terms of pre-existing law.

However, such a constitutional change does not alter the Grundnorm. It is only an extra-constitutional change in a constitution that results in the change of the Grundnorm.

When using an extra constitutional device to change a constitution it is not possible to argue that the ground situation was ripe for change in one context but that it is not so in another context. It is trite law that all extra-constitutional changes of a constitution are illegal in terms of pre-existing law.

This does not, however, have any bearing upon the validity of the ensuing constitution. The proper test of validity is efficacy rather than legality.

The fact that a country effecting constitutional change meets the criteria, identified by Kelsen for there to be a change in the Grundnorm, does not make the resulting constitution morally right nor for that matter morally wrong.

Kelsen's theory was never intended to provide a moral justification for constitutional change and it was, and has always been, morally neutral. What Kelsen set out to do was to provide a proper basis for distilling the quintessence of law and, for this reason alone (if for no other), his theory warrants serious consideration and analysis.

(Concluded)

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