Hans Kelsen and the colony
example
In his paper Kelsen’s theory of the basic norm, Joseph Raz
identifies two axioms of Hans Kelsen’s 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 Raz’s 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. Kelsen’s 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, Kelsen’s first
axiom entails that the laws that are seemingly part of it are actually part of
country A’s legal system:
For
B’s 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)
Raz’s 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. Kelsen’s theory of the basic norm.
American Journal of Jurisprudence 19: 94-111.