The X Liberation Party have been duly elected to govern the state of X and, after the election, the party renounced the former constitution and enacted two pieces of radical legislation, firstly the Rendition Research Institute Act 2006 which permits the government to feely interrogate and torture people without any judicial or legal oversight and, secondly, a statute that forbids the use of the word rendition in any form of publication and breaking this law is punishable by death. Perhaps understandably, the Irish lawyers who are working in the state of X refuse to recognise the new lawyers presumably because the laws curtail the freedom of speech, permit torture at the behest of the government and provide for capital punishment for a relatively menial offence.
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The Irish government takes a hard line Kelsenite view on all matters of recognition and dealings with foreign states, that is, the government’s policies are based on the extensive theories of Hans Kelsen, an Austrian jurist who advocated legal positivism and the pure theory of law. Legal positivism involves attempting to explain what the law is, not what it ought to be. The theory is concerned with the science of law and not legal politics. However, Kelsen’s theories differed slightly from those of other legal positivists because Kelsen viewed a legal statement as a normative statement, a statement of how one ought to behave. Consequently, Kelsen developed his pure theory of law. The theory is pure partly because it does not focus on justice and is stripped of its ideological, political, economic and historical dressings. In Kelsen’s words ‘the pure theory of law simply declares itself incompetent to answer either the question whether a given law is just or not, or the more fundamental question of what constitutes justice’[1]. Kelsen believes that ‘the pure science of law seeks the real and possible law, not the just, and in this sense it is radically realistic and empirical. It declines to justify or condemn’[2]. The fact that the law exists does not guarantee that the legal order is just. In Kelsen’s opinion, any legal order is comprised of general norms and each norm depends on a higher norm for its validity; the theory of the hierarchical system of norms. Of course, this hierarchical system is not infinite; the highest norm in the system is the basic norm or ‘grundnorm’, and does not depend on another norm for its validity. The basic norm will often be the constitution and is presupposed to be valid due to a transcendental-logical presupposition[3]. This is because the basic norm has the function to found the objective validity of the subjective meaning of the acts by which the constitution is created.[4] The norms that are below the basic norm are valid because the basic norm has conferred objective validity on these general norms. Kelsen also hypothesised about the consequence of changing the basic norm in relation to whether the change would be valid.[5] Kelsen described the situation whereby a group of individuals seize power by force and remove the legitimate government to introduce a republican government. Kelsen believed that if the citizens conform to the new order, the new order will be valid. This is because, in Kelsen’s opinion, in order for a norm to be valid it has to be efficacious and the norm must command a sufficiency of adherence or obedience from the majority of citizens to validate it; universal or total obedience is not essential. The X liberation party was duly elected to power by a majority of citizens and the party has the support of the military and the police, thereby satisfying the sufficiency of adherence requirement. The validity and efficacy of the new laws would only be questioned if the majority of the citizens of X did not attach credence to the laws or if they avoided compliance. The legal order that was in place prior to the X liberation party coming to power lost its efficacy and consequently every norm lost its validity because the whole legal order was annulled in a constitutional way.[6]
Kelsen also believes that the validity of the basic norm is presupposed and that ‘coercive acts ought to be carried out only under the conditions and in the way determined by the “fathers” of the constitution’.[7] On this basis, it is clear that the Irish government’s stance is that the basic and general norms enacted by the X liberation party are valid legal norms that should be obeyed by the Irish lawyers. The Irish lawyers may believe that the new statutes are morally reprehensible. However, value judgments and moral or ethical considerations are irrelevant from a Kelsenite perspective. Kelsen completely rejected any connection between law and morals and theorised that all historical, sociological and ideological issues were beyond the scope of his pure theory of law. Kelsen distinguished between law and morals on the grounds that law is a coercive normative order that attempts to bring about a certain type of behaviour by attaching to the opposite behaviour a socially organised coercive act[8] such as the forcible taking away of life, of freedom or of economic or other value, whereas a morality based system comprises of a social order without sanctions where merely approbation of norm-conforming behaviour and disapprobation of norm-opposing behaviour is given. To Kelsen, morals are merely propositions that describe our subjective preferences for behaviour that is impossible to prove objectively; morals are essentially irrational because they merely express different feelings and intuition.[9] Indeed, from a Kelsenite viewpoint any law, even if it was considerably harsher and more morally reprehensible that X’s current laws, is valid if it satisfies the principle of efficacy and can rely on a higher norm for its valid legal existence because, according to Kelsen, ‘there is no kind of human behaviour that, because of its nature, could not be made into a legal duty corresponding to a legal right’.[10] Therefore, as the rule book of the X liberation party is a valid basic norm according to Kelsen’s theory, the Irish government believes that these laws should be obeyed and will not consider any question as to whether the laws are just or morally sound. Indeed, ‘what content this constitution or the natural legal order built on its foundations has, be that order just or unjust, does not come into question, not whether that legal order guarantees relative peace within the community constituted by it’[11]
Even where the punishment that results from breaking a law is death, Kelsen believes that, provided the law satisfies the validity and efficacy requirements, the law is correct and should be obeyed, notwithstanding the fact that capital punishment is used as a sanction for a trivial law such as the law enacted by the X liberation party which allows the government to punish by death any person who uses the word rendition in a publication. Kelsen specifically addresses the validity of a law where the ultimate sanction for breach is death.[12] Kelsen believes that when one individual deprives another of his life the law will be legal ‘only if it is prescribed by an individual legal norm, namely as an act that ought to be performed’[13]. Such a severe law will be valid ‘because this individual norm was created in applying a criminal law that contains a general norm according to which…the death penalty ought to be inflicted’[14]. Its validity stems from the fact that the law was ‘created by the legislature, and the legislature, in turn, is authorised by the constitution to create general norms’[15]. Therefore, as the party rule book is the valid basic norm of the legal order of the state of X, the general norms created by the X liberation party are also valid and must be followed by the Irish lawyers, including the norm that prescribes death as a punishment for contravening that norm. If the Irish lawyers contravene the laws of X, they themselves could face imprisonment or even death.
Bibliography
L.B. Curzon, “Jurisprudence”, 1995, 2nd ed. Cavendish Publishing Ltd
M.D.A. Freeman, “Lloyds: Introduction to Jurisprudence”, 2001, 7th ed. Sweet and Maxwell
W. Morrison, “Jurisprudence: From the Greeks to post-modernism”, 1997, Cavendish Publishing Ltd
J. Penner; D. Schiff & R. Nobles, “Introduction to Jurisprudence and Legal Theory: Commentary and Materials”, 2002, Butterworths Lexis Nexis
Footnotes
[1] L.B. Curzon, “Jurisprudence”, 1995, 2nd ed. Cavendish Publishing Ltd at para 12.3
[2] ibid.
[3] Kelsen, “The Pure Theory of Law”, 1945, at pg. 201
[4] Kelsen, “Professor Stone and the Theory of Law2, 1965, 17 Stan. LR 1130, at 1141
[5] Kelsen, “General Theory of Law & State”, 2005, Transaction Publishing at p. 115
[6] ibid. at 119
[7] ibid. at 117
[8] J. Penner; D. Schiff & R. Nobles, “Introduction to Jurisprudence and Legal Theory: Commentary and Materials”, 2002, Butterworths Lexis Nexis, p 196
[9] W. Morrison, “Jurisprudence: From the Greeks to post-modernism”, 1997, Cavendish Publishing Ltd p. 333
[10] Kelsen, “The Pure Theory of Law”, 1945 at p. 113
[11] Kelsen, “The Function of a Constitution”, 1986, at pg. 116
[12] Kelsen, “The Pure Theory of Law”, 1967, translated from Kelsen, “Reine Rechtslehre”, 1960, 2nd ed.
[13] ibid.
[14] ibid.
[15] ibid.
