Question

The legal positivists Hans Kelsen (slide 1) and H.L.A. Hart (slide 2) introduce notions that are intended to replace the role of the sovereign in the adjudication of law. Briefly explain the concepts of "grundnorm"(Kelsen) and "rule of recognition"(Hart.) Are there differences between the two?

The Grundnorm Kelsen takes a scientific approach to law and his views on it, while differing from Austin's, result in another version of legal positivism. He stresses that a study of law should confine itself to that domain only. In other words, considerations of morality, politics or sociology, while not without influence in local situations, are not the proper purview of the legal scholar and should not enter into an explication of the law. Kelsen's central concept is that of a grundnorm, or basic norm. This "basic norm" plays an important role - it is the norm upon which all subsequent levels of law (e.g., criminal law, contract law) depend. In the U.S. this basic norm would be the Constitution. The validity of the Constitution itself must be presupposed for the legal system to operate. Moreover, any society that has a legal system will have an equivalent norm which plays an equivalent role. The presupposition of the grundnorm as the basic condition of the validity of legal norms in general is what marks Kelsen's theory as "pure." Law is not to be reduced to any other domain.

Answer 1

The rule of Kelsen analyses the positivity in the situation with understanding of the terms and conditions of legal positivism. There are various factors studied under this like the norm, right, duty and sanction for defining different laws. There are higher norms which regulate the functioning of the lower laws in the society. There is analysis of the behavior of people and there is a regulating authority which plans the rules for the implementation of different laws in the society. The legal validity of the concept of law is independent of the laws of morality in life. There are various legal norms which can be classified as higher legal norms and lower legal norms in the society.The laws are valid if there is ruling and higher authority for the process of verification of all the legal laws under the classification system in the society. He defined the meaning of the word "is" and "ought" in defining the principles of beliefs and thoughts for defining a ruling authority. The legal formulation and normalization of law rules cannot be adapted from any other fields like psychology, sociology, economics and political science. They must not be obtained from ethics and moral principles. Kelsen defied the command theory of Austin. This theory claimed that commander can execute commands only if the commander has the power and higher authority to execute that command in the society. Kelsen focused on the conditions required for issuing power and authority for regulating the norms in the society. The validity of all norms depends upon the rules present in the constitution which form the "Grundnorm" as the basic laws and foundation principles. It is prevalent in the situation of Mafia control in a region in the society. There is legal positivism which defines the principles of morality and rules for observing them in the society. The basic norms are due to cognition and attainment of knowledge in life. There are rules of change which cause a change in the ruling powers in the society.

According to Hart, there is a rule of recognition in life. There are internal factors and external factors which govern the ruling of law in the society.This is in accordance with certain behavior in the society.This is prevalent in the Danish rules of recognition in life. There should be moral commitment in the judges which defines their existence in life. The rule of recognition is an internal point and must be observed according to the moral behavior and following of norms in life which are essential. There are officials who disregard the moral rules and laws developed for the welfare of people in the society.The rules of obligations are not accepted but they are acknowledged when they allow the gratification of personal interests. Judges apply the rule of justice under moral obligations and duties based on the presence of evidence and are not based on non-moral obligations. There rules are accepted by the local members living in the society who confer to the legal rulings of law and order in the society. This is the comparison and differences between the rules of law according to Kelsen and Hart respectively.