Hans Kelsen and the colony example

 

 

In his paper Kelsenís theory of the basic norm, Joseph Raz identifies two axioms of Hans Kelsenís legal theory and objects to both of them. The colony example is an example which is used to object to one of these axioms. My aim here is to present the two axioms and Razís colony example.

 

Two axioms of Kelsen's legal theory

According to Raz, Kelsen accepts two propositions which he regards as too self-evident to require any detailed justification. Raz refers to these two propositions as axioms. One of these axioms is the following:

(K1) If one law directly or indirectly authorises the creation of another, then both laws belong to the same legal system.

Raz presents an instance of two laws to help explain the axiom: a criminal law enacted by parliament and a constitutional law authorising parliament to enact criminal laws. They belong to the same legal system because the second law authorises the first.

 

Here is the other axiom:

(K2) All the laws of a legal system are authorised, directly or indirectly, by one law.

It is understandable for Kelsen to regard the first axiom as not in need of detailed justification, but the second axiom looks far from obvious. Raz observes that if it is treated as a generalization about legal systems based on empirical evidence, (K2) is false. Kelsenís way of dealing with this problem is to say that each legal system is founded on a non-positive law. A foundational non-positive law is:

a law which authorizes all the fundamental constitutional laws and the existence of which does not depend on the chance action of any law-creating organ, but is a logical necessity. (Raz 1974: 95)

The law which plays this role in a given legal system is what Kelsen refers to as the basic norm of that system. Of course, it is open to doubt that there really are such things.

 

The colony example

Unlike (K2), it is understandable to regard (K1) as not in need of detailed justification. Counterexamples to it do not come readily to mind. However, Raz offers a counterexample. He asks us to imagine that a country A has a colony B, and that A and B are governed by the same legal system. For whatever reason, A then grants B independence through a law. The law confers exclusive and unlimited legislative powers over B to a representative assembly elected by inhabitants of B. The assembly adopts a constitution which is accepted by inhabitants of B and, after elections, laws are made. What used to be a colony is now regarded by its inhabitants as an independent country, with an independent legal system.Both its independence as a country and the independence of its legal system are recognized by all other countries. Nevertheless, Kelsenís first axiom entails that the laws that are seemingly part of it are actually part of country Aís legal system:

For Bís constitution and consequently all the laws made on its basis were authorized by the independence-granting law of A and consequently belong to the same chain of validity and to the same system. (Raz 1974: 98)

Razís counterexample is intended to give us reason to say that this claim about belonging to the same system is false and so that (K1), because it entails something false, is also false.

 

Defending Kelsen

Lars Vinx finds the same objection in H.L.A. Hart and argues that Kelsen can be defended against it. See here.

 

Reference

Raz, J. 1974. Kelsenís theory of the basic norm. American Journal of Jurisprudence 19: 94-111.

 

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