Why Does The Grund Norm Change J.W. Harris

Editorial Committee of the Cambridge Law Journal
When and Why Does the Grundnorm Change?

Author(s): J. W. Harris
Source: The Cambridge Law Journal, Vol. 29, No. 1 (Apr., 1971), pp. 103-133
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
Stable URL: https://www.jstor.org/stable/4505440
Accessed: 17-08-2019 04:50 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Cambridge University Press, Editorial Committee of the Cambridge Law Journal are
collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law
Journal
This content downloaded from 223.31.174.90 on Sat, 17 Aug 2019 04:50:56 UTC
All use subject to https://about.jstor.org/terms
Cambridge Law Journal, 29 (1), April 1971, pp. 103-133.
Printed in Great Britain.
WHEN AND WHY DOES THE GRUNDNORM

CHANGE ?
J. W. Harris
S. (1). Introduction
In Pakistan, Uganda and Southern Rhodesia, courts have held
themselves entitled to declare that the effect of a successful revolution
has been to change the law in their respective jurisdictions.1 Judges
appointed under one constitution have held themselves to be bound
to recognise the validity of laws promulgated under a different
constitution; the judge's own political opinions have been said to
be irrelevant.2
The primary authority upon which the courts in these cases—
hereinafter referred to as 4< the revolution cases "—have relied has
been Hans Kelsen's theory of the change in the grundnorm brough
about by a revolution.
In all three jurisdictions the following passage from Kelsen
General Theory of Law and State has been cited with approval3:
(D). Change of the Basic Norm: It is just the phenomeno
of revolution which clearly shows the significance of the Bas
Norm. Suppose that a group of individuals attempt to seiz
power by force, in order to remove the legitimate governmen
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
1 The State v. Dosso (1958) 2 Pakistan S.C.R. 180; Uganda v. Commissioner

Prisons, ex p. Maiovu (1966) E.A. 514; Madzimbamuto v. Lardner-Burke N.O
JD/CIV/23/66, 9 September 1966, Government Printer, Salisbury (Lewis a
Goldin JJ.), (1968) 2 S.A. 284 (Appellate Division), where the judges at firs
instance and the majority of the Appellate Division of the High Court of
Rhodesia found that the revolution was not yet successful, but on various
grounds held that partial recognition could be given to the legislative and
administrative acts of the rebel r£gime; and R. v. Ndhlovu (1968) 4 S,A. 515,
where, eight months after Madzimbamuto's case, the Appellate Division held the
revolution to be successful, so that all the new r^gime's laws had internal
validity.
2 Dosso, n. 1, supra, 184-185 (Muhammad Munir C.J.), 195 (Shahabuddin J.), 222
(Amiruddin Ahmad J.); Matovu, n. 1, supra, 530, 535 (Sir Udo Udoma C.J.);
Madzimbamuto v. Lardner-Burke NO. (1968) 2 S.A. 284, 326-328 (Beadle C.J.),
364-365 (Quenet J.P.), 384-386 (Macdonald J.A.); R. v. Ndhlovu (1968) 4 S.A.
515, 520-522, 528-535 (Beadle CJ.), 538-542 (Quenet J.P.).
3 General Theory of Law and State, Harvard ed., 1945 (hereinafter cited as
" G.T.L.S."), p. 118, cited in Dosso, n. 1, supra, 185-186 (Muhammad Munir
C.J.), 195 (Shahabuddin J.); in Matovu, n. 1, supra, 535-536 (Sir Udo Udoma
C.J,); and in Madzimbamuto v. Lardner-Burke N.O., JD/CIV/23/66, 10-11
(Lewis J.) (1968) 2 S.A. 284, 315 (Beadle C.J.).
103
104 The Cambridge Law Journal [1971]
individuals whose behavior the new order

behave, by and large, in conformity with th
this order is considered as a valid order. It is
to this new order that the actual behavior of individuals is
interpreted as legal or illegal. But this means that a new bas
norm is presupposed. It is no longer the norm according
which the old monarchical constitution is valid, but a norm
according to which the new republican constitution is valid,
norm endowing the revolutionary government with le
authority. If the revolutionaries fail, if the order they have trie
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.4
Kelsen had said: "No jurist would maintain that even after a
successful revolution the old constitution and the laws based there-
upon remain in force, on the ground that they have not been nullified
in a manner anticipated by the old order itself."5
Kelsen's theory was positivistic (indeed, " pure "), and therefore
apolitical. The theory, therefore, licensed the judges in the revolu¬
tion cases—or so they held—to accept the legality of the successful
revolutions occurring in their respective countries, without entering
the political arena.
Even the Privy Council, in holding that the laws and adminis¬
trative acts of the Smith regime were completely without legal effect
in Southern Rhodesia, does not appear to have dissented from the
general principle that successful revolutions create new legal orders
whose validity may be adjudged by courts within the territory subject
to the revolution. It cited the Pakistani and Ugandan cases without
disapproval, but distinguished the position in Rhodesia, on the
ground that there the revolution could not be said to be successful,
since the old constitutional authority was still trying to regain
control.6
Discussion in legal periodicals of the decisions of the courts in

the revolution cases has been generally hostile. In particular, it has
been asserted that, supposing Kelsen's theory of the change in the
grundnorm to be accepted, that theory does not entitle courts to
4 " Thus, the basic norm, in a certain sense, means the transformation of power
into law "—G.T.L.S., p. 437. Cf. The Pure Theory of Law, Berkeley ed., 1967
(hereinafter cited as '* P.T.L."), pp. 208-211.
s G.T.L.S., p. 118. Cf. G.T.L.S., p. 437.
* Madzimbamuto v. Lardner-Burke [1969] A.C. 645, 724-725. In Ndhlovuf supra,
n. 1, at 520 and 538, Beadle C.J. and Quenet J.P. interpreted the ruling of the
Privy Council to mean that, as soon as the Rhodesian revolution became
successful in fact, Rhodesian courts were entitled to regard the new regime as
lawful.
C.L.J. Change of Grundnorm 105
draw from it the sort of conclusion which was drawn. ITie reasons
given for this assertion may be divided under four heads:
Criticism (i)
Even supposing a revolution to be successful, in Kelsen's
terminology "by and large effective," this does not entitle a court
to declare the constitution established by the revolutionaries to be
"valid," because Kelsen stipulates that efficacy is only a necessary
condition of validity and not identical with validity. This criticism
is advanced by J. M. Eekelaar.7
Criticism (ii)
When a revolution has recently occurred, no purely factual test
of efficacy can be applied, so that any decision that laws enacted in
accordance with the revolutionary constitution are valid cannot,
merely by applying Kelsen's theory, be made free of political con¬
siderations. This criticism has been advanced by A. M. Honore,*
S. A. de Smith 9 and R. W. M. Dias.10
Criticism (iii)
In particular, a court cannot make a factual judgment about the
efficacy of a recent revolution as a prior step to its decision whether
or not to recognise the validity of revolutionary laws, because its
decision on the latter question will be one of the factors upon which
the ultimate success of the revolution depends. This criticism has
been advanced by the same authors in conjunction with Criticism
(ii) above.11
Criticism (iv)
Kelsen's theory, being purely descriptive of legal science, can
only indicate the role of the jurist (legal scientist) and has no applica¬
tion to the role of the judge. This criticism has been cogently
advanced by F. M. Brookfield.12
The purpose of this article is to ask the questions when and why,
7 "Splitting the Grundnorm" (1967) 30 M.L.R. 156, 171-172; "Rhodesia: the

Abdication of Constitutionalism " (1969) 32 M.L.R. 19, 22-23.
8 " Reflections on Revolutions:' [1967] Irish Jurist 268, 271-273. Cf. Annual
Survey of Commonwealth Law (1967), pp. 92-93.
9 " Constitutional Lawyers in Revolutionary Situations " (1968) 7 Western Ontario
L.R. 93, 106-107.
io "Legal Politics: Norms behind the Grundnorm" (1968) 26 C.L.J. 233, 253-254.
11 Supra, nn. 8, 9, 10. The same criticism of the revolution cases was made by
counsel for the appellant before the Privy Council in Madzimbamuto v.
Lardner-Burke [1969] A.C. 645, 669, 671.
12 " The Courts, Kelsen, and the Rnodesian Revolution " (1969) 19 University of
Toronto L.J. 326, 342-344.
according to Kelsen's theory, the grundnorm ch

occurrence of a successful revolution. To make it po
these questions, it will be necessary to re-examine
leading concepts—especially those of " validity,"
" legal science "—and to evaluate the functions he
grundnorm. The inquiry will show, it is submitted,
the above criticisms of the courts' application o
unfounded, and that the other criticisms are largely so
Finally, something will be said of the merits of the
S. (2). The Functions of the Grundnorm

To understand the nature of the Grundnorm in change, we must recall
its nature when at rest.
Grundnorm, a Hypothesis
Kelsen says that the grundnorm is a " presupposition" or
" hypothesis " in juristic thinking.13 This means that its nature is
exclusively revealed by its function.
A physicist is reported to have answered the Emperor Louis
Napoleon, when asked why his works made no reference to the
existence of God: " I have no need of that hypothesis." There
may be other reasons for assuming the existence of God, apart from
the utility of the assumption, but this is not so of the grundnorm.
Kelsen asserts that the grundnorm is presupposed in juristic thinking
to serve certain logical purposes. If these purposes are in fact fully
served without presupposing the grundnorm, it is a hypothesis
without function and therefore a worthless piece of theorising.
The Grundnorm*s Two Functions

Kelsen specifies two functions for the grundnorm: first, to enable
anyone to interpret a command, permission or authorisation 14 as an
objectively valid legal norm 15; secondly, to enable the legal scientist
to interpret all valid legal norms as a non-contradictory field of
meaning.16
i3 G.T.L.S., pp. 117, 396, 437; P.T.L., p. 204. Cf. Kelsen: "Professor Stone and
the Pure Theory of Law" (1965) 17 Stanford L.R. 1128 (hereinafter cited as
" Stanford"), 1144: " My characterisation of the basic norm as 'hypothesis*
means exactly the same as its characterisation as * presupposition,* which is the
literal translation of this Greek term." Cf. ibid. 1149.
14 "Authorise" = "confer the power to create law "—P.T.L., p. 118.
is P.T.L., pp. 30, 50-54, 195, 202, 234. Stanford, p. 1143.
16 " With the postulate of a meaningful, that is, non-contradictory order, juridical
science oversteps the boundary of pure positivism. To abandon this postulate
would at the same time entail the self-abandonment of juridical science. The
basic norm has here been described as the essential presupposition of any
positivistic legal cognition/* G.T.L.S., p. 437. "Thus the science of law
He gives, as an example of the former fun

pretation which " we " (sc. people in gen
a gangster to pay a sum of money, and t
pay the same amount. Both have the sam
Kelsen says, in the sense that in each case
in words equivalent to: "I direct you t
we interpret the " subjective meaning" of
as its "objective meaning," that is, we in
valid legal norm. We do not interpret th
the same way and, according to Kelsen,
ultimately explained by reference to the
grundnorm.17 This first function of the
sidered in S. (3).
The second function of the grundnorm
only in general schematic form. To mak
seems desirable to fit a concrete example
into his schema. Such an example is set o
Legal Science and Logic

The field of meaning which is the logi
scientist consists of the contents of legal no
usually a national legal system. These con
in the legal source materials—statutes,
judgments, etc. The legal scientist, wh
any particular topic, at least recites or p
materials—he may also explain, interpr
reciting and paraphrasing almost invaria
logical arrangements—for Kelsen, it doe
if it does not: first, that valid norms on th
for instance, two sections in the same statute—should not conflict;
secondly, that valid norms on a lower level of authority—for instance,
delegated legislation or judicial decisions applying statutes—should
be subsumed under norms on a higher level of authority. "Two
legal norms are contradictory and can therefore not both be valid
at the same time, if the two rules of law that describe them are
conceives of its object as a logical unit: a system of non-contradictory norms."

Kelsen: "What is the pure theory of law?" (1959-60) 34 Tulane L.R. 269,
271. " (Epistemologically, the science of law) * creates' its object in so far as
it comprehends the object as a meaningful whole." P.T.L., p. 72. Cf. P.T.L.,
pp. 74, 205-208; Stanford, p. 1143. For discussion of the conditions which
must be satisfied for a consistent set of norms to exist, see G. H. Von Wright,
Norm and Action, 1963, pp. 141-144. For discussion of the disciplinary status
of legal science, see A. Wedberg, " Some Problems in the Logical Analysis of
Legal Science " (1951) 17 Theoria 246.
" G.T.L.S., pp. 31-32; P.T.L., pp. 44-50. Stanford, p. 1144.
108 The Cambridge Imw Journal [1971]
contradictory; and one legal norm may be deduced f

the rules of law that describe them can form a logica
Kelsen's model of a legal system provides a logical
for both these canons. The non-contradiction po
postulating a basic norm presupposed in legal science
unity to the system of valid legal norms under consi
subsumption point is met by providing a schema, wh
legal system as a primarily dynamic one in which lowe
as individualisations and concretisations of higher nor
norm must " determine "21 a lower norm at least to the extent of
authorising someone to create it; it may also determine the procedure
for its creation and, to a greater or less degree, its contents.
Content of the Grundnorm

Besides postulating a model which will justify these two logical
canons of legal science, Kelsen specifically adapts the model to meet
the one point of content which, in his view, is common to " law "
as the subject-matter of legal science. "Law," he says, is always
concerned with coercion.22 To build this universal into the model,
he postulates that all norms (including the grundnorm) have the
same form: they all command, permit or authorise the application
of force to human beings against their will (sanctions).23 " According
to the Pure Theory of Law the internal characteristic of the legal
18 P.T.L., p. 74. "... since the cognition of law, like any cognition, seeks to
understand its subject as a meaningful whole and to describe it in non-
contradictory statements, it starts from the assumption that conflicts of norms
within the normative order which is the object of this cognition can and must
be solved by interpretation"—P.T.L., p. 206. (But cf. n. 45, infra.) For
discussion of the value of the logical canons of legal science, see F. Castberg,
Problems of Legal Philosophy, 1958, pp. 56-72. Cf. G. Gottlieb, The Logic
of Choice, 1968, p. 14.
19 " A norm forms part of a dynamic system if it has been created in a way that
is—in the last analysis—determined by the basic norm." G.T.L.S., p. 113.
"The fact that a certain norm belongs to a certain order is based on the
circumstance that its last reason of validity is the basic norm of this order."
P.T.L., p. 195. 20 G.T.L.S., pp. 124-162. P.T.L., pp. 221-278.
21 Kelsen's use of the concept of " determination " in this context
It is the legal scientist who, comparing the higher and the lower nor
places them in a relation of subsumption. The extent to which the norm-
authority who creates the lower norm is actually controlled in so doing by the
terms of the higher norm is a matter for dispute.
22 G.T.L.S., pp. 15-29. P.T.L., pp. 33^2, 54, 62.
2* G.T.L.S., p. 45. P.T.L., pp. 33-42, 50-54, 108-114. In the latter work Kelsen
distinguishes between " sanction ** in the broader sense, as meaning any coercive
act stipulated by law, and " sanction " in the narrower sense, as meaning only
coercive acts stipulated as reactions to legally ascertained behaviour. This
refinement of his earlier views meets in part, but by no means completely,
criticisms which have pointed out that his insistence on slotting the concepts of
duty, delict and sancticn into his rigid model results in a severe distortion of
these concepts, when comparison is made with their use in ordinary language,
Cf. H. L. A. Hart, "Kelsen visited" [1963J U.C.L.A.L.R. 709, 717-722; A. D.
Woozley, " Legal Duties, Offences and Sanctions " (1968) 77 Mind 461.
norm is that it stipulates a coercive act."2

not have this form are merely "seconda
norms.25 " Only the coercive act, functio
to be."26
In any national legal system the constitution contains, at least,
authorisations to create all the general norms that can be created
within the system, and these in turn authorise the creation of
individual norms. But the different authorisations in the constitution
can only themselves be brought into a system if a higher norm—the
grundnorm—is presupposed which authorises their creation.
In the United Kingdom there are at least two norms which
authorise the creation of general norms. These are, giving them the
form stipulated by Kelsen: (i) coercive acts ought to be applied in
accordance with statutes enacted by the Queen in Parliament; (ii)
coercive acts ought to be applied in accordance with judge-made
rules established in conformity to the doctrine of binding precedents.
A third such authorising constitutional norm would have to be
postulated if custom is still regarded as an independent source of
law.27
If these norms and those whose creation is authorised by them
are to be treated as a unified field of meaning, a grundnorm has to
be presupposed which authorises their creation. If it were not, it
would be impossible to express the two or three ultimate authorising
norms of the constitution as conclusions in syllogisms, each of which
had the same major premise, and hence the delegated norms
authorised by each of the ultimate constitutional norms would form
separate systems.
Form of the Grundnorm

But what is the form of the grundnorm which is presupposed in
the case of a national legal order whose constitutional norms have
been established by custom? Kelsen himself does not answer this
question.
disap roval—ibd.
Where the constitution is contained in a written document
promulgated at some date in the past, Kelsen tells us, in "Ge
Theory of Law and State," that the schematic form of the grund
of a national legal order is as follows: " Coercive acts ought
24 Stanford, p. 1131. It is this internal characteristic which distinguish

individual legal norm from an individual moral norm, for, although th
may provide for " sanctions," these will only be the sanctions of app
25G.TL.S,p .60-61, 37-138.PT.L,p .54-60,238.

2eP.TL.,p.1 9.
27Cros ,Prec dentinEnglishLaw,2nded.,p .15 -162.
carried out only under the conditions and in the w

by the * fathers * of the constitution or the orga
them.'*28 In the case of any particular such nationa
referring to the actual individuals responsible for p
constitution—either their names or a generic descr
are apparently to be substituted in this formulatio
44 fathers."29 Hence, in contemporary France, the
General De Gaulle and those who assisted him in
and promulgation of the Constitution of the Fifth
In 4"The Pure Theory of Law," the formula e
grundnorm is stated thus: 44 Coercion of man again
be exercised in the manner and under the condition
the historically first constitution." 30 The grundno
national order must apparently be found, in terms of
by substituting for the words <4 the historically f
some words by which the written constitution now
identified, such as "the constitution of the Fifth
case of contemporary France. But that there is no
on this point between the two works is made clear
The Pure Theory of Imw, we read that, where a basic norm is
presupposed in the case of a consciously created constitution, the
individuals who created it "are looked upon as norm-creating
authorities."31
Where there is no written constitution, as in the United Kingdom,
Kelsen tells us only that the grundnorm authorises the norm-creating
effect of custom.32 (It may do this even where there is a written
constitution which does not stipulate custom as a source of law; in
which case, the 4< constitution in a material sense "—which includes
all ultimate sources authorised by the grundnorm—will not be
confined to the written constitution.83)
In the latest version of his theory, Kelsen tells us that custom
is created by an act of will "individual or collective."34 What he
means by this is not clear, but the following interpretation is
suggested: the norms of an entirely or partially customary con¬
stitution could not have attained their constitutional normative status
if, at various times in the past, influential individuals had not
28 G.T.L.S., pp. 115-116.

29 In his Stanford Law Review article of 1965, Kelsen, in answer to a question
raised by Professor Stone, tells us that the content of the grundnorm of each
national legal order is different, though in every case the grundnorm refers to
the ultimate constitutional sources of law for that order—Stanford, pp. 1148-1149.
so P.T.L., p. 50.
3i P.T.L., p. 199. Cf. Stanford, p. 1145. « P.T.L., pp. 198-199.
33 G.T.L.S., p. 126. P.T.L., pp. 221-224.
34 P.T.L., pp. 225-226, 229. (Contra, G.T.L.S., pp. 34-35.) Kelsen now believes
that all positive norms are created by acts of will—Stanford, pp. 1138-1139.
C.LJ. Change of Grundnorm 111
specifically wanted such norms to operate on the constitutional level

and if their wishes had not received general acquiescence: Accord¬
ingly, the grundnorm of the United Kingdom legal system authorises
the population at large from time to time to fashion the ultimate
norms of the constitution in any way which meets with general
approval.
The following example is suggested to illustrate Kelsen's schema
for the cognition of law, as applied to the national legal system of
the United Kingdom.
(A) Grundnorm of United Coercive acts ought to be applied only
Kingdom legal order: under the conditions and in the ways
customarily recognised as constitu¬
tional from time to time by the
population at large.
(B) One of the ultimate Coercive acts ought to be applied in
constitutional norms: accordance with statutes enacted by
the Queen in Parliament.
(C) General norm: Where, pursuant to a contract of sale of
goods, the seller neglects or refuses to
deliver the goods to the buyer, and
the buyer elects to sue, the seller ought
to be condemned to pay damages.35
(D) Particular norm If Smith neglects or refuses to deliver his
created by contract horse (Dobbin) to Brown, and Brown
between Smith and elects to sue, Smith ought to be con¬
Brown: demned to pay damages.
(E) Particular concret- If Smith fails to pay damages of £100
ised norm created by within 28 days of this order, and Brown
a county court Judge issues a warrant of execution, the
on Brown's suing bailiff ought to levy execution upon
Smith for breach of the goods of Smith.
contract:
(F) Particular fully con-

" Bailiff, levy execution upon the goods
cretised norm created of Smith." se
by Brown's issuing a
warrant of execution:
Aims of Legal Science

At any one time the law of a country, conceived (as it is by
science) as a non-contradictory field of meaning, consists of s
35 Sale of Goods Act 1893, s. 51 (1).

35 A more complete example than that presented in the text would illustrate t
application of the process of subsumption to rules of evidence, procedure
jurisdiction—G.T.L.S., pp. 128-130. P.T.L., pp. 130-132.
general rules which are available for particular appl

particular rules representing applications of these g
legal scientist who writes the traditional kind of le
usually describe " the law " in terms of statements
will be parallel to norm (C) above, The legal scienti
what is "the law" to a client—before giving adv
predictions on the basis of that law—will, in additio
to make statements whose generality is parallel to
So long as logical consistency is one of the aims
some logical model justifying non-contradiction and
an essential part of legal theory. Kelsen's model, it
the best which theory has so far achieved. However
aims which legal scientists commonly set themselv
historical and sociological explanation of the origin
of rules of law, the moral or political justification or c
rules, and policy-oriented suggestions for the inter
rules in doubtful cases and for the enactment or re
Kelsen's theory, by insisting on " pure " cognit
logically consistent arrangement of legal source m
reference to history, purpose or policy—as the
science, impliedly downgrades these other aims.
S. (3). The Concept of Validity

First function of grundnorm rejected
On the basis of the above discussion it is submitted that something
like the hypothesis of a grundnorm is necessary to serve the second
of the two functions which Kelsen specifies for it; to enable the legal
scientist to interpret all valid legal norms as a non-contradictory field
of meaning. It is submitted, however, that this hypothesis is quite
unnecessary to serve the first of the two functions: to enable anyone
to interpret a command, permission or authorisation as an objectively
valid legal norm.
The citizen or lawyer who distinguishes the tax officer's demand
from the gangster's demand as " valid " or " lawful" does not need
to presuppose a basic norm, unless he is a legal scientist seeking to
show that the contents of the tax officer's directive form part of a
unified field of meaning constituted by it and all other valid legal
norms. For one not engaged in the specialist activity of legal science,
that the tax officer's demand is legally valid, while the gangster's is
not, means that it is in conformity with a particular higher general
norm which authorises the tax officer to issue it.
Nor can we accept Kelsen's view that the subjective meaning of
the tax officer's and the gangster's commands are the same. It is
true that they may both be expressed in th

the semantic function of an utterance as im
descriptive depends, not on grammatical fo
The subjective meaning of " command " is at
of the tax officer or the gangster because of
context of each enables their subjective
differentiated into " tax officer's comman
mand." Context will always include as part o
of the tax officer's command: "I, in the e
conferred on me, demand payment. . . ." 38
Four Senses of " Validity "

To assert that the hypothesis of the gr
perform the first function as well as the secon
logical error. Why should Kelsen have made
The answer lies, it is submitted, in the m
of validity. In the case both of the individu
and of a unified system of norms, Kelsen sa
supplies "the reason for validity."39 He a
the same concept in both cases. There are,
different senses in which the adjective "
qualify a legal norm or rule.
Valid/1 = conforms to a higher norm ("is
not void ").
Valid/2 = is a consistent part of a normative field of meaning.
Valid/3 = corresponds with social reality ("is in force").
Valid/4 = has an inherent claim to fulfilment.40
Valid/l is the commonest sense of the term in English legal
discourse. Validity/l enables the tax officer's and the gangster's
demands to be distinguished.
Valid/2 is an occasional term of English legal discourse, as when
it is said: " these two contradictory statutory provisions cannot both
37 Von Wright, n. 16, supra, pp. 96-98, 100-103. Alf Ross, Directives and Norms,
1966, pp. 69-74. Kelsen, " Derogation," Essays in Jurisprudence in Honour of
Roscoe Pound (R. Newman, Ed.), 1962, pp. 339, 342.
38 Kelsen's distinction between " subjective " and " objective " normative meaning
is not clear, but the following interpretation is suggested: where the complete
articulation of a normative expression would require the use of a verb-subject
other than the subject of the normative verb, its meaning is " subjective "; if it
does not require such an additional verb-subject, its meaning is " objective "—
contrast: " I (you. he) say(s) you (he, all men) ought to do such-and-such,"
and " I (you, he, all men) ought to do such-and-such."
39 G.T.L.S., pp. 10-11, 117. P.T.L., pp. 30, 46, 193 et seq. Stanford, pp. 1142,
1145, 1146. Cf.n. 19, supra.
40 For discussion of different senses of " validity," see Von Wright, n. 16, supra,
pp. 194-200. Ross, n. 37, supra, pp. 104-105, 177-182. G. C. Christie, ""The
Notion of Validity in Modern Jurisprudence " (1964) 48 Minn.L.R. 1049.
114 The Cambridge Law Journal 11971]
be valid." But Validity/2 is primarily a concep

Validity/2 is what legal theory, " looking down
of legal science,41 points to as the logical refe
assumptions of legal science.
Kelsen himself uses " valid " primarily as Valid/
apparently without recognising the distinction,
When the tax officer's demand is said to be inte
rather than as a subjective command, Validity/1
is no need in such a context for the presupposition o
In his earlier writings, Kelsen stated that the
fulness " could not be ascribed to any rule or to
without presupposing the grundnorm.42 He has
by " lawful" in such contexts he meant " val
merely to replace one ambiguity by another. It
to distinguish Validity/l and Validity/2 which
in his Stanford Law Review article, that, on the
identify a legislator as legislator without presup
norm,44 but that, on the other hand, the revenue
can only be interpreted differently from the
presuppose the grundnorm.45
Kelsen recognises and specifically rejects f
Validity/3 and Validity/4. Validity/3 equates
rule with its effectiveness, and Kelsen insists th
distinguished.46 Validity/4 suggests that a ru
political or moral sense. Validity/4 is, therefore
sistent with the pure theory of law. "The pure t
present the law as it is, not as it ought to be; it
real and possible, not the ' ideal,' the * right' law.
*' Ross, On Law and Justice, 1958, pp. 25-26.

*2 " It is impossible to grasp the nature of law if we limi
single isolated rule. The relations which link together the
legal order are also essential to the nature of law." G.T.L.S., p. 1. "(The
basic norm) is presupposed to be valid because without this presupposition no
human act could be interpreted as a legal, especially as a norm-creating, act.*'
G.T.L.S., p. 116. Cf. G.T.L.S., pp. 118, 121
« Stanford, pp. 1144-1146. Cf. P.T.L., pp. 2-3. See also n. 64, infra.
44 Stanford, p. 1145.
45 Stanford, p. 1144. In his article entitled " Derogation " (n. 37, supra) at pp.
351-355, Kelsen apparently denies the concept of Validity(2 altogether. He
there asserts that the " logical canons " referred to in section 2, supra, are really
express or implied positive norms. The implication of this passage would
seem to be that the grundnorm has no function at all.
46 G.T.L.S., pp. 40, 119, 169-171. P.T.L., pp. 10, 78, 211-214. Stanford, pp.
1139-1140. Kelsen, " On the Pure Theory of Law" (1966) 1 Israel L.R. 1, 2.
47 P.T.L., p. 106. " Legal norms are not valid because they themselves or the
basic norm have a content the binding force of which is self-evident. They are
not valid because of their inherent appeal. Legal norms may have any kind of
(sc. moral or political) content. 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. The validity of a legal norm cannot be questioned on the ground
Metaphysical Validity 15
The distinction between these various
throws light on, but does not completely
most puzzling assertions, namely: (i) no on
of both a national legal order and the int
recognise any conflict between them.48 If " v
in the sense of Validity/2, and it is furth
be only one field of normative meaning, K
a tautology. But if Validity/l is ascribed
national law and to an individual rule of in
nothing impossible about a simultaneou
conflict.
(ii) No one can ascribe " validity " simultaneously to conflicting
rules of law and morality.49 This also is a tautology if " valid " is
understood as Valid/2, and it is assumed that there can be only one
field of normative meaning. But if a rule of law is asserted to be
Valid/1, Valid/2 or Valid/3, it is no contradiction to assert that a
conflicting rule of morality is Valid/4.
However, why should it be assumed that there is only one field
of normative meaning to which scientific discourse can refer when
it uses the concept of Validity/2? The fact that Kelsen makes this
assumption is indicative of an unfortunate metaphysical gloss on his
theory. He says: "By the word * validity' we designate the specific
existence of a norm." 50 And he refers to Law as a " realm " which
"stands over against reality,"51 or "juxtaposes itself to reality."52
By such expressions he evokes a picture of normative space, in which
norms stand as objects each occupying its segment of non-reality.
that its contents are incompatible with some moral or political value." G.T.L.S.,
p. 113. "Law is always positive law, and its positivity lies in the fact that it is
created and annulled by acts of human beings, thus being independent of
morality and similar ncrm systems." G.T.L.S., p. 114. "The validity of a
positive legal order does not depend on its conformity with some moral system."
P.T.L., p. 67. (At P.T.L., pp. 17-23, Kelsen refers to a judgment that behaviour
accords with a valid norm as a " value judgment." This terminology is mis¬
leading; but his description of the value as " relative " to the human source of
the norm makes it plain that legal norms are not being described as Valid/4.
"... the statement * law is moral by nature* does not mean that law has a
certain (sc. moral) content, but that it is norm—namely a social norm that men
ought to behave in a certain way. Then, in this relative sense, every law is
moral; every law constitutes a—relative—moral value." P.T.L., p. 65. Cf.
Kelsen, " Norm and value " (1966) 54 Cali.L.R. 1624.
48 G.T.L.S., p. 373. P.T.L., p. 332.
4* G.T.L.S., p. 374. P.T.L., p. 329. Cf. Hart, n. 23, supra, pp. 772-778.
« P.T.L., p. 10.
« G.T.L.S., p. 121.
52 P.T.L., p. 213. "... value and reality belonging to two different spheres, ju
as the * ought' and the 4 is f"—P.T.L., p. 19. "Norms have a reality differe
from natural reality—a social reality"—P.T.L., p. 86. " (Law is to be
contrasted with) causally determined reality "—P.T.L., p. 104.
If a norm is Valid/5, in the sense that it actually

of normative-meaning-space, it excludes any con
norm.
Criticism (i) rejected

In the light of this discussion of the concept of validity,
of the above criticisms of the judgments in the revolution
be seen to be unfounded. The criticism was that, even if th
found the revolutionary change efficacious, they were not e
declare revolutionary law " valid " by Kelsen's theory since,
says, efficacy is only a precondition of validity.53
This criticism suggests that Kelsen requires something ot
efficacy before a legal system can be said to be Valid /
view is that Validity\4 can never be justified by legal science.5
What Kelsen does say is that efficacy is not enough for Vali
However, all that is required in order to confer Validity/
efficacious legal system is a decision to interpret the laws of th
as a logically consistent field of meaning. This is a decision
legal scientist will normally take (and, according to Kelsen,
if what he engages upon is to count as legal science). It is
which entails no value commitment. As Kelsen points o
an anarchist, if he were a professor of law, could describe posit
as a system of valid norms, without having to approve of th
S. (4), When Does the Grundnorm Change?

Grundnorm not a fact
The persistent tendency to identify the grundnorm with a socio-
political phenomenon must be resisted, if an appraisal of Kelsen's
theory is to be on target.
In many societies there exists a widespread, more or less inarticu-
late, attitude of commitment towards a certain form and style of
53 n. 46, supra.
54 " From the standpoint of scientific cognition of positive law, its justification
by a moral order different from the legal order, is irrelevant, because the task
of the science of law is not to approve or disapprove its subject, but to know
and describe it. True legal norms, as prescriptions of what ought to be,
constitute values; yet the function of the science of law is not the evaluation
of its subject but its value-free description. The legal scientist does not
identify himself with any value, not even the legal value he describes." P.T.L.,
p. 68. Cf. G.T.L.S., pp. 48-50, and n. 47, supra.
" P.T.L., p. 218n. At G.T.L.S., p. 413, however, Kelsen says that an anarchist
would not ascribe " validity" to the positive legal order, and at Stanford,
p. 1144, he says that a communist would deny that a legal order of a capitalist
society is " objectively valid." These statements can only be reconciled with
the citation in the text if it is assumed: (a) that the anarchist of G.T.L.S. and
the communist of Stanford are not supposed to be acting as legal scientists; and
(b) " validity " in these contexts is Validity/4.
CLJ. Change of Grundnorm 117
government, which is not inaccurately desc

age as a " habit of obedience "— although
of assuming that the attitude was dire
sovereign.56 In many societies there may
rule-idea, functioning as a motive for socia
rule that" whatever the Queen in Parliamen
and communicated in this or equivalent ex
and, as a consciously articulated norm-form
other social behaviour. H. L. A. Hart's " ru
generalised notion of such rule-ideas functi
action.57
The grundnorm, however, is not a social

of these. It is not a phenomenon at all, bu
Grundnorm changes when lawyers make new

Being merely a hypothesis of juristic think
not change the moment the revolutionaries
change until jurists change their thinking, th
to make post-revolutionary assertions to t
country now is . . . ," where "now" refers
established source of law.
While attitudes of commitment and even
56 "If a determinate human superior, not in a

superior, receive habitual obedience from the b
determinate superior is a sovereign in that socie
that superior) is a society political and independ
of Jurisprudence Determined, Hart ed., 1954, p. 194.
57 " There are therefore two minimum conditions n
existence of a legal system. On the one hand th
are valid according to the system's ultimate criteri
obeyed, and, on the other hand, its rules of recog
of legal validity and its rules of change and adju
accepted as common public standards of officia
H. L. A. Hart, The Concept of Law, 1961, p. 113
the sense of valid/1. He is right (it is submitted
the rule of recognition cannot be valid/1. But h
ment that the validity of the basic norm is pres
(p. 106) is misplaced, if Kelsen is here understoo
validity/2.
S7a In his Israel Law Review article (n. 46, supra) at p. 6, Kelsen says that those
who consider an order as an objectively valid order " in their thinking,
presuppose the basic norm as the meaning of an act of will. Since, however,
an act of will does not exist in reality, but only in the juristic thinking of men
who interpret the coeicive order as an objectively valid legal order, the
presupposition of the basic norm is a typical case of a fiction in the sense of
Vaihinger's Philosophie des Als-ob." The grundnorm is postulated by Kelsen
as something logically essential to explain the practice of lejal scientific
discourse. If the logical bases of this discourse can be explained in some
better way, the grundnorm is useless. But there can be no question of its
being true or false; i.e., no amount of empirical inquiry can establish that it
does or does not exist as a psychological or sociological phenomenon. C/.
H. Vaihinger, Philosophy of " As If," 1924, pp. 85-90.
develop, the grundnorm will not change at all so lo

give primacy to the same ultimate sources in their
of legal material.
Kelsen generally distinguishes ultimate sourc
only: written constitutions and customary c
entails that there can be only two kinds of grun
ing the " fathers " to promulgate the written const
date, and one which authorises the population at
time to create a material constitution by custom
Hence, where the constitution is written, ther
the grundnorm (a revolution) if jurists begin t
some newly promulgated constitution. The new b
formally from the old only in that the person
" fathers " will be different, for they will be the p
new written constitution. There will also be a ch
norm if the written constitution is abandoncd
refer to as " laws " acts of legislation made in s
tioned by custom.
If the constitution is customary tc begin wit
grundnorm will only occur if a written constit
Thus, in Kelsen's terms, the decision of the House of Lords in 1966
not to be bound by its own decisions did not constitute a change in
the grundnorm (revolution), and neither did the "revolution " of 1688.
In the terminology suggested above, however, the 1966 decision did
represent a change in an important " rule-idea," and the 1688 revolu¬
tion did represent a change in a basic " attitude of commitment."
To achieve a more discriminating logic for revolutions, it would
be necessary to make a more detailed taxonomy of ultimate sources
and grundnorms than Kelsen's formal distinction between written and
customary constitutions. For instance, customary constitutions could
be subdivided according to the kind of social group which the grund¬
norm effectively authorised to dictate constitutional developments; and
written constitutions, by reference to the kind of group which pro¬
mulgated them—were they, for instance, socialist or non-socialist
" fathers "?
Jjegoi science and efficacy

No change in the grundnorm can occur until legal scientists make
a fresh presupposition. But this, according to Kelsen, they do not
If there is a written constitution which does not specify custom as a source of

law, and yet custom is actually treated as such (n. 33, supra), the " material
constitution " of the society in question will presumably count as a " customary
constitution" for the purposes of the above distinction only if custom is
regarded as an effective means of varying the written constitution.
and (if they are to fulfil the role appropr

not do without the pre-condition of eff
does not have an arbitrary choice.60
But why does efficacy dictate the legal sci
norm? A true evaluation of the judgmen
requires an answer to this question. An a
philosophic core of Kelsen's theory.
Kelsen assumes that legal science—which
logically consistent arrangement of normati
from human legislators—is a socially usef
and necessity of such a discipline directed
tive meaning is proved by the fact that th
existence for millennia—a science which,
serves the intellectual needs of those who deal with the law."61
If legal science is to be a socially useful activity, it must purport to
describe " law " which is both positive (laid down by human beings)
and by and large effective. Hence, "... the basic norm can only
establish a law-making authority whose norms are, by and large,
observed, so that social life broadly conforms to the legal order based
on the hypothetical norm." 62 " That means: we presuppose the basic
norm only if there exists a coercive social order by and large
effective." 63
Thus, the grundnorm changes when legal scientists make a new
basic presupposition; but, as legal scientists, they must do this when
the legal norms which are by and large effective within a territory can
only be interpreted as a consistent field of meaning if a new grund¬
norm (authorising a new ultimate source of law) is presupposed.
Efficacy, a practical test?

Is it possible and practicable to make efficacy the test of a change
in the grundnorm? The second criticism of the revolution cases
asserts that, whatever may be the position for a settled legal order,
59 G.T.L.S., p. 437 ; P.T.L., pp. 46-48, 86-87. Stanford, p. 1142.

eo P.T.L., p. 201 ; Stanford, p. 1143.
fl1 P.T.L., p. 105. "... the aim of tbis general theory of law is to enable the
jurist concerned with a particular legal order, the lawyer, the judge, the
legislator or the law-teacher, to understand and to describe as exactly as possible
his own positive law . . ."—G.T.L.S. xiii. Glendon Schubert, a protagonist of
" behavioural jurisprudence " (the successor movement to the school of American
realists), has written: "... candor compels the admission that the older
mechanical jurisprudence remains the overwhelmingly dominant metaphor
among judges themselves, practising lawyers, journalists and the public."
Schubert, " Behavioral jurisprudence " (1968) 2 Law and Society Review 407,
409. By " mechanical jurisprudence" Schubert is referring (disparagingly) to
what Kelsen seeks to explain and justify under the approbative title of " lega
science."
« G.T.L.S., p. 437.
« Stanford, p. 1142.
no objective factual judgment as to efficacy can b

a revolution has taken place.
Kelsen, in his Stanford Law Review article, m
the identification of effective legal norms does not
supposition of the grundnorm. Only the attribut
quality Validity/2 requires this presupposition.6
effective legal norms is a step logically prior to t
the grundnorm. " The positivistic jurist, when he
norm, is guided by the tendency to recognise as
greatest possible number of empirically given ac
meaning of which is to be legal acts." "
If there are in a territory commands, permissi
tions which are issued by persons who purport to
lators and which are effective, then the meaning
commands, permissions and authorisations are n
legal scientist can and must attribute Validity/2
presuppose a basic norm which confers legislativ
those who purport to enact them.
The effectiveness of each individual norm is to be measured,
according to Kelsen, by two criteria: first, by whether the norm is
" obeyed," that is, by whether the conduct (the opposite of which is
made the condition of the sanction stipulated by the norm) is per¬
formed; secondly, by whether, if the noim is not obeyed, the sanction
is applied by the official whom the norm directs to apply it.66 These
are questions of fact. It is true that soon after the occurrence of a
revolution they may be future questions of fact, but that does not
make apolitical judgments about them impossible or impracticable,
only more subject to error.
What is meant by saying that norms, to be effective, must be
64 " The function of the basic norm is not to make it possible to consider a
coercive order which is by and large effective as law for—according to the
definition presented by the pure theoiy of law—a legal order is a coercive order
by and large effective; the function of the basic norm is to make it possible to
consider this coercive order as an objectively valid order. . . . The basic norm
does not answer the question as to whether the existing order is a legal order
but the question as to what is the reason for the validity of this legal order."
Stanford, pp. 1144-1146. Earlier in the same article, Kelsen criticises Stone
for suggesting that Kelsen's theory stipulated as one of the conditions for the
validity of a single norm the membership by that norm of a system of norms.
It is submitted that it is Kelsen who is at fault here, in that he slides from one
sense of " validity" to another. In the passage quoted in this footnote,
"validity" = Validity/2. In the earlier passage (pp. 1139-1141) "validity"
sometimes means Validity/1, as where Kelsen states that a statute is valid as
soon as it is enacted and before it can become effective; and sometimes
"validity" means Validity/3, as where Kelsen states that a norm loses its
validity if it fails to become by and large effective.
«5 G.T.L.S., p. 437.
ee G.T.L.S., p. 62, P.T.L., pp. 11, 116.
obeyed or applied " by and large? "67 It w

say, in the case of many norms, whether
more often than not when disobedience to th
statistical evidence of the number of cases of disobedience could not
be obtained. It would be impossible to say whether the norm was
obeyed more often than not, without first postulating what was t
count as obedience. Kelsen says: " Law is observed by that
behaviour to whose opposite is attached the coercive act of the sanc¬
tion " C8 and that motive is irrelevant.69 Then laws which prohibit the
performing of acts which most people do not in any case perform
(such as laws against witchcraft) must always be generally " obeyed ";
in other words, one of Kelsen's criteria of obsolescence can never
apply to them.
It is submitted that the " by «md large " test should be reformu-
lated in the following way. The first criterion (obedience) should be
eliminated, and the test should run: " a norm is to be judged effective
if the official acts of application of sanctions bear a socially significant
ratio to the recorded acts of disobedience."
The test need be no more precise in order to choose between the
effectiveness of competing norms issued by rival legislative authorities.
In the revolution cases it was manifestly possible to predict, at the
relevant dates, that official acts of sanction would occur in accordance
with revolutionary norms, and that these official acts would be in a
socially significant ratio to acts of disobedience to the norms.
Kelsen indicates that there must be some degree of permanence to
the effectiveness of legal norms before the legal scientist is justified in
ascribing Validity/2 to them.70
The question of how much turns, presumably, on whether there
seems to be sufficient permanence about the new norms to make works
of legal science—which, by presupposing a new grundnorm, confer on
them Validity/2—worth while (in a practical, not a moral, sense). Was
it, at the dates when the Madzimbamuto and Ndhlovu cases came
before the Rhodesian Appellate Division,71 worth while to write a text¬
book of, say, Rhodesian criminal law which presupposed a grundnorm
that conferred legislative authority on the rebel legislature? An
affirmative answer seems inescapable.
If a revolution is literally in balance so that it is an even bet
whether the norms of the old order or those of the rival revolutionary
order will be effective during, say, the next decade, efficacy alone will
«7 G.T.L.S., pp. 118, 437. P.T.L., pp. 46, 86, 202. Stanford, pp. 1139-1142.
68 P.T.L., p. 236.
€* G.T.L.S., p. 40. P.T.L., p. 24. ?o p.TL., pp. 47-^8.
7* Judgments were delivered on 29 January 1968 and 13 September
The Rhodesian unilateral declaration of independence was made
1965.
122 The Cambridge Law. Journal [1971}
clearly not answer the question: which grundn

scientist to presuppose? He might then either
refuse to make statements about what i:he law is 7
statements in the alternative: " if the revolution
this point is . . . ," " but if it fails, the law is. . .
question of burden or degree of proof, or presum
of fact, unless these are based on some general ph
of legal conservatism.
If legal scientists honestly differ as to whether th
succeed, the question whether the grundnorm has
is nonetheless " objective " in the same way that
future matters of fact is objective. No such judg
with certainty and many such judgments turn out to
Nevertheless, the presupposing of a grundnorm, w
a judgment, does not entail any decision of politic
It is accordingly submitted that the second criticism of the
revolution cases is mistaken.
Efficacy and the judge

The third criticism of the revolution cases asserts that, whatever
may be the position of a legal scientist, a judge cannot make an
objective determination of the efficacy of revolutionary norms soon
after the revolution has occurred, because his own decision is an
element in the very efficacy which is to be determined upon.
It is true, as we have seen, that official action is an important
element in the efficacy of norms. It is submitted, however, that
whether such a criticism of a judge is well founded depends on the
circumstances. It depends on the relative importance of his decision
as against other present and future elements in the efficacy of the revo¬
lutionary norms. If a judge believes that the success of the revolution
may turn on what decision he gives in a case before him, then clearly
he cannot decide as to the efficacy of the change without first making
a political choice whether or not to join the revolution. If he believes,
however, that whatever he decides, the revolution is likely to succeed
(if need be, by his dismissal and the appointment of an acquiescent
judge), then his decision that the revolution will be efficacious is not
necessarily politically motivated.
No one has suggested that the success of the revolutions in
Pakistan or Uganda turned on judicial approval, but some writers do
appear to suggest that this was the case in Rhodesia.73
72 The course recommended in the Annual Survey of Commonwealth Law (1967),

p. 93.
73 R. W. M. Dias, n. 10, supra, p. 257, has suggested that if the Rhodesian judges
had stood out against the 1965 constitution—which was set up by the rebel
This was not the view of the judges in

which the legality of the revolutionary r
Rhodesian Appellate Division. Beadle
Lardner-Burke N.O., stated that the decision of the court would
make little difference to the issue of success or failure.74 He and
Jarvis AJ.A. concluded on the facts that the revolution seeraed like
to succeed.75 Quenet J.P. and Macdonald J.A. concluded that the
revolution had already succeeded.76 Fieldsend AJ.A. expressed the
view that, whether or not the revolution had succeeded, no judge
appointed under the pre-revolutionary constitution ought to accord
legality to the new constitution.77 In R. v. Ndhlovu the court found
as a conclusion of fact, that the revolution had succeeded.78
It is difficult to say whether the opinions expressed by the
Rhodesian judges in these and other constitutional cases79 were hones
and apolitical.80 But that there was plenty of evidence in 1968
suggesting that the Rhodesian rebellion would succeed can scarcely b
denied.
On the basis of the foregoing discussion it is submitted that the

question: when does the grundnorm change? can, in principle, receiv
an apolitical, fact-based reply from a legal scientist, even when it is
asked soon after the occurrence of a rebellion; and, in practice, th
question can receive the same kind of reply from a judge in loco,
because his answer to it will not affect the success of the rebellion. The
grundnorm changes when the legal norms which are by and large
effective within a territory change in such a way that a legal scientist
regime—on grounds of morality or justice, they might well have forced the
new grundnorm to incorporate the principle for which they stood out. Cf.
F. M. Brookfield, n. 12, supra, p. 344, who impliedly criticises the view tha
the decision of the Rhodesian judges would make little difference to the success
of the revolution. The same point was made by counsel for the appellant when
Madzimbamuto's case came before the Privy Council, [1969] A.C. 645, 680.
74 (1968)2 S.A. 284, 321.
" Ibid. 326, 418.
7* Ibid. 369, 415.
77 Ibid. 430, 432; cf. Beadle CJ. in R. v. Ndhlovu (1968) 4 S.A. 515, 522. For
discussion of the argument that judges cannot, or ought not to, pronounce upon
the validity of the constitution under which they were appointed, see R. S.
Welsh, "The constitutional case in Southern Rhodesia'* (1967) 83 L.Q.R. 64,
73, 75, 81, 87-88; Palley, n. 80, infra, pp. 280-284; Annual Survey of Common¬
wealth Law, 1968, pp. 108-113; Honore, n. 8, supra, pp. 273-278; De Smith,
n. 9, supra, pp. 93-110, L. J. Macfarlane, " Pronouncing on Rebellion: The
Rhodesian Courts and U.D.I." [1968] P.L. 325, 355-361; Dias, n. 10, supra,
pp. 238-239; Brookfield, n. 12, supra, pp. 330-340. The argument is considered
in the text at the end of s. 5, infra.
7« (1968) 4 S.A. 515, 531 (Beadle C.J.); 542 (Quenet J.P.); 554 (MacDonald J.A.).
79 Dhlamini v. Carter N.O. (1968) 2 S.A. 445; Madzimbamuto v. Lardner-Burke
N.O. (No. 2) (1968) 2 S.A. 457: Dhlamini v. Carter N.O. (No. 2) (1968) 2 S.A.
474; Dhlamini v. Carter N.O. (No. 3) (1968) 2 S.A. 467.
80 For the personal and political backgrounds of the Rhodesian judges, see the
article by Mrs. Claire Palley, " The Judicial Process: U.D.I. and the Southern
Rhodesian Judiciary " (1967) 30 M.L.R. 263.
124 The Cambridge Imw Journal [1971]
can only interpret the content of these by and large

as a logically consistent field of meaning by pre
grundnorm.
What legal norms are by and large effective at any given time may
be discovered in the following way: first, by recording what com¬
mands, permissions and authorisations (stipulating sanctions) have
been issued (and not repealed) by a person or body purporting to act
as legislator; secondly, by recording (or predicting) occasions on which
the stipulated sanctions have been (or are likely to be) applied by
persons purporting to act as state officials; thirdly, by recording (or
predicting) acts of disobedience, that is, acts specified as conditions for
the application of the stipulated sanctions to the actor. If there is
a socially significant ratio between the official acts and the acts of dis¬
obedience, and it can be predicted that this ratio will continue to
obtain for a reasonable length of time, the meaning-contents of the
commands, permissions and authorisations are by and large effective
norms.
S. (5). Why does the Grundnorm change?

As appears from what has been said above, the reason why th
norm changes when it does is as follows: only by presupposin
grundnorm can the legal scientist fuliil his socially usef
describing the law actually in force as a logically consiste
meaning. If anyone were to write a textbook of Rhodesia
presupposing the old grundnorm and therefore assuming the
of the United Kingdom legislation of 1965 (which nullif
passed and all administrative actions undertaken by
regime),81 he might be considered to be performing a pr
81 The Southern Rhodesia (ConsUtitution) Order 1965 (1965 S.I. 195

under the Southern Rhodesia Act 1965. S. 2 (1) of this order pr
hereby declared for the avoidance of doubt that any instrument m
act done in purported promulgation of any constitution for South
except as authorised by act of Parliament is void and of no effec
provides: " No laws may be made by the legislature of Southern
business may be transacted by the legislative assembly and no s
taken by any person or authority for the purposes of or otherwise
the constitution or reconstitution of the legislative assembly or th
any person to be a member thereof. . . ." S. 4 (1) (b) suspends vario
of the 1961 Constitution, relating to the functioning of the executive
Rhodesia. S. 6 provides: *' It is hereby declared for the avoidanc
that any law made, business transacted, step taken or function e
contravention of any prohibition or restriction imposed by or und
is void and of no effect." The majority of the Privy Council in Ma
case interpreted these provisions to mean that no body in South
can make law, no matter how necessary for preserving law and ord
other purpose, [1969] A.C. 645, 729-731. Lord Pearce, in his diss
ment, said that the order should be interpreted in the light of
issued by the Governor soon after U.D.I., which required official
with their " normal tasks." On this basis he concluded that the order was
intended to nullify only acts done in purported exercise of powers under the
piece of propaganda against a racist r

acting in the role of a legal scientist, sim
collating the laws actually in force in Rhod
Implications of the pure theory for a judg

However, granted that the legal scien
traditional role, must presuppose the e
warrant does Kelsen's theory give the ju
it? If we leave aside Kelsen's dogmatic v
of international law,82 the answer is: di
this extent the fourth criticism of the revo
The pure theory of law is intended to de
its aims, its a priori formal assumptions,
judgments contained in it. Kelsen sa
application is an act of law-creation, in
and individualisation of norms.83 The ju
fore simultaneously an act applying the
and, to the extent that it creates law, it
act of presupposing the grundnorm, on th
an act of cognition.85 " The science of
it were from the outside—and to descr
legal authorities, have to create the law
known and described by the science of law
Thus the theory does not directly war
posing any grundnorm; for jurisprudenc
of law.87
Nevertheless, it is submitted, the pure theory does have indirect
social suggestive force for judges. The theory assumes that legal
1961 Constitution, and consequently that it was possible for the courts to
recognise some of the laws enacted by the rebel legislature otherwise than under
that constitution—ibid. 742-745.
82 G.T.L.S., pp. 121, 220-221. P.T.L., pp. 214-217. Kelsen believes: (a) that the
principle of effectiveness, according to which only the law effective within a
territory is valid law in that territory, is a rule of positive international law—an
extreme version of the declaratory (rather than constitutive) effect of recogni¬
tion of states; (b) that systems of municipal law are subordinate to, and cannot
contradict, positive international law. If these opinions were correct it would
follow that judges in a municipal court would be directly authorised to pre-
suppose new grundnorms following successful revolutions. However, the first
of these opinions is highly controversial and the second is true of some juris¬
dictions but not of others. Kelsen does not base these opinions on the evidence
of positive law. He deduces them from a metaphysical interpretation of the
concept of validity—see supra, p. 115.
« G.T.L.S., pp. 132-133; P.T.L., p. 234.
8* P.T.L., p. 10; Stanford, pp. 1136-1137.
85 P.T.L., p. 204n.
88 P.T.L., p. 72.
87 G.T.L.S. xiv, p. 163. At Stanford, p. 1134, Kelsen rejects Stone':; suggestion
that he (Kelsen) had expressed the " foolish opinion " that propositions of the
pure theory of law bind the judge in the way in which legal norms bind him.
science is socially useful, which is precisely the r

that legal science should follow efficacy. Clearly
sort described by the pure theory can only continue
ful so long as judges also indulge in it. If judges c
think of their decisions as subsumptions under g
persistently ignored the hierarchy of constitution,
this sort of legal science would become pointless.
To assert that at the present time judges in develo
do act as legal scientists is a correct description
haviour, although to what extent their actual deci
by factors other than what they say about " the law
controversial. The pure theory assumes that this
behaviour is not only what judges do indulge in,
ought to indulge in. Kelsen's assertion that: "
jurisprudence predicts that the courts will decide, n
dence maintains that they ought to decide," 88 is tr
" say " for " decide.,,
Thus, in so far as judgments are acts of law-app
are assumed to act as legal scientists, and in that
ought to presuppose the grundnorm.
A further implication of the theory, as of all pos
law, is that, to the extent that the solution of a
by the science of law is clear (that is, to the exten
no discretion within the meaning of the relevan
judge ought to apply that solution. If judges acte
up to the point at which they found that solutio
then regularly opted for solution Y, again legal s
pointless. Hence, that it would be inconsistent
judge to do this, is implied by a theory which
science is useful.
The pure theory of law therefore has three relevant implications
for the role of a judge: (a) judges do act as legal scientists; (b) they
ought so to act; (c) to the extent that legal science gives a clear
solution to a particular case, the judge ought to accept that solution
as the basis for his decision.
Thus, where a revolution is, or is predicted to be going to be,

successful, Kelsen's theory (directly) requires the legal scientist, acting
in his role as legal scientist, to presuppose a new grundnorm, and
(indirectly) suggests that a judge, acting in his role as judge, ought to
do the same. It does therefore seem that the theory warrants a judge,
who wishes to avoid express political commitment ("joining the
** G.T.L.S., p. 172.
revolution"), in accepting the laws of

r6gime.
Jjoyalty to constitutions
It can, however, be argued that it is not consonant with the
role of a judge who has been appointed under one constitution
to accept the authority of any other constitution. It is not that
there is anything illogical in such a step. The rules conferring
adjudicative power on a judge are legal rules which can be the subject
of judicial determination like any other legal rules. Courts frequently
pronounce upon their jurisdiction in particular cases, and there is no
reason, in logic, why a court should not embark on an inquiry as to
whether or not there has been a change in the grundnorm, even
though, until the inquiry is completed, it is uncertain whether the
court's jurisdiction rests on old grundnorm rules or new grundnorm
rules.
The point is that judges are normally thought of as upholders of

constitutions, not co-operators in rebellions. Ought not loyalty to the
constitution which made him a judge to outweigh his ordinary duty to
accept the clear ruling of legal science?
This is a general question touching the ethics of judgeship to which
there is no easy answer. It seems likely that a positivistic philosophy
of law would answer it in the negative, for the following reason: if the
revolution is successful, a loyal judge can only resign, whereas a legal-
science judge can continue with his useful role.
However, even if one admits that a judge qua judge ought to
accept the laws of a successful revolutionary regime, this legal duty
may, in particular cases, be outweighed by other extra-legal duties. It
may be outweighed by a political duty not to give support to an
immoral regime or by a personal moral duty to observe a judicial oath.
A revolutionary upheaval is just the sort of situation where being a
good judge may have to give way to being a good citizen or a good
man.
S. (6). Ought Effectiveness to be Enough?

Apart from the four criticisms mentioned at the beginning of
article of the judgments in the revolution cases alleging misapplication
of Kelsen's theory, the theory itself has been criticised for mak
effectiveness the sole test of whether a revolution has changed
law.89 This is a fundamental objection to all positivist theories of l
for it is axiomatic to all such theories that there is no point in refusin
89 Palley, n. 80, supra, pp. 280-284. Honor£, n. 8, supra, pp. 273-278. Dia
n. 10, supra, pp. 243-244, 256-258. Macfarlane, n. 77, supra, pp. 331-335.
to use the word " law " to describe any and every re
and exclusive organisation of force within a territor
may be.
Positivists stoutly maintain that to call something " law" or
" legally valid " implies no sort of approval, but is indeed consistent
with outright condemnation on moral or political grounds. It is sub¬
mitted that they do not thereby commit themselves to a contradiction.
It is perfectly meaningful to say " (such and such) is an atrocious legal
rule;" or " the legal order presently in force in (X) is an appalling
tyranny."
On the other hand, it cannot be denied that in practice words like
" law " and " legality " do function as " titles of honour."90 Politi-
cally (perhaps even ethically) they do ring in people's ears with an
approbative association. If it were not so, the internal " legality " of
the Smith regime would not be a political issue, that regime would not
have submitted to the adjudication of the Rhodesian courts on the
question of its "legality," and the British Government would not
continue to insist that the regime is internally " illegal."
Morality and the definition of law

Positivists are undoubtedly right when they assert that the defini¬
tion of *' law " need contain no reference to substantive moral prin¬
ciples. Are they also right when they assert that it ought not to?
The answer to this question depends on our judgment on two
general issues of legal philosophy: first, is it possible to spell out a
moral criterion which would give a meaningful guide as to the
difference between a morally acceptable organisation of state force
(" law "), and one which was not morally acceptable (" non-law ")?
Secondly, if such a criterion can be found, would the political advan¬
tages to be obtained by maintaining the distinction outweigh the
practical disadvantages of blurring the merely descriptive function
\vhich positivism attributes to legal science?
These are the fundamental questions raised by the revolution
cases. If an affirmative answer can be given to them a fundamentally
anti-positivist position would be attained which would be far more
significant philosophically than the sapping operations mounted
against positivism in recent years. The burden of such criticisms has
been that positivists, by insisting on a value-free explication of the
concept of a legal system, have pointed theoretical discussion away
from areas in which the day-to-day operation of a legal system does in
fact include consideration of value issues. For instance, the positivist
characterisation of law in terms of prescriptions or rules suggests, it
90 Ross, On Law and Justice, 1958, p. 31.
C.LJ. Change of Grundnorm 129
has been said, that a judge's role consists

clear cases or in creating law through the
discretion in unclear cases; whereas in fact
actually invoke the purpose of the partic
principles and policies.92 Or again, positiv
terms of organised coercion neglect, it ha
values which " organisation " necessarily e
stantive aims of an organisation are immo
cisms to be just, they do not touch the c
which is the assertion that there are relat
organisations of force through the mediu
their moral differences, have such amoral si
for practical purposes to come under a c
Are these practical purposes outweighe
tages of including a value criterion in the
so, what is the criterion?
Supposing, for instance, that a value
oppressive were built into the definition o
regularly to do with the exposition of law
legal administrators? Could this moral
sufficient exactness to give a reasonably
individual legal systems? If it could, wou
of refusing to call what happens in, say,
worth the cost?
If university libraries refused to catalogue textbooks on South
African law under " law," but insisted on some new classification to
describe the category " racially oppressive, but relativeiy permanent,
organisation of force," and if we added to the conflict of laws a
general rule that no effect was to be given to such non-legal systems,
would it be worth while?
If it had the effect of weakening racialism, many might agree that
it would. Would it have this effect?
English courts and Rhodesian " law "

There are two reasons why English courts cannot attribute the
quality of " legality " to any of the legislative or administrative acts
of the Smith regime, both of which flow from the English constitu-
C.LJ.—5
91 L. L. Fuller, " Positivism and Fidelity to Law—Reply to Professor Hart"
(1958) 71 H.L.R. 630, 661-669.
92 R. M. Dworkin, " The Model of Rules " (1967) 35 University of Chicago L.R. 14.
J. C. Smith, "Law, Language and Philosophy" (1968) 3 U.B.C.L.R. 59, 107-
112, W. L. McBride, "The Essential Role of Models and Analogies in the
Philosophy of Law " (1968) 43 N.Y.U.L.R. 53, 72-82.
93 Fuller, n. 91, supra, pp. 643-648; The Morality of Law, 1964, pp. 33-44, 46-95,
106-118, 145-151.
tional doctrine of indivisible sovereignty and not f

principle that " laws " must satisfy a moral criterio
of a government to which our own government has
least de facto recognition can be recognised.
In Carl Zeiss Stiftung v. Rayner and Keeler Ltd.
Reid stated the general principle as follows:
In the normal case a law is made either by th
directly or by some body entitled under the con
country to make it or by some person or body
sovereign has delegated authority to make it. On
there are many cases where laws have been made
of the sovereign by persons engaged in a rebellio
Then until such person or the government which th
been granted de facto recognition by the gover
country, their laws cannot be recognised by the
country, but after de facto recognition such
recognised.05
In the same case, however, Lord Wilberforce said t
should shrink from the view that non-recognition of a
ment by our government entailed a legal vacuum,
words: "A government without laws is, I suppos
politics, inconceivable to human capacity and inconsiste
society." Lord Wilberforce left open the question w
courts might not accord recognition to some of the
law-applying acts of an unrecognised government.96
However, even if this doctrine could be applied to
is a second reason why none of the acts of the Smit
considered legal by English courts. The legislative s
Parliament is unlimited. It may enact that " laws "
part of the world are not to be treated as laws by Engl
94 [19671 1 A.C. 853, where the House of Lords held that the a
ment of the German Democratic Republie could be recognise
ment had power delegated to it by the government of the
government had recognised as the sovereign authority for E
•s [19671 1 A.C. 853, 901.
•• [1967] 1 A.C. 853, 953-954.
97 S. 4 of the Statute of Westminster 1931, which purports to restrict Parliament's
power to legislate for the dominions could, in theory, be repealed—British Coal
Corporation v. R. [1935] A.C. 500, 520 (Lord Sankey). In Madzimbamuto's
case, Lord Pearce (in his dissenting judgment) added to his somewhat strained
construction of the 1965 legislation—n. 81, supra—a comment which entails
that parliamentary sovereignty could be limited in some circumstances. He
said [1969] A.C. 645, 745: "there is no indication in the Order in Council that
it intended to exclude the doctrine of necessity or implied mandate by enjoining
(inconsistently with the Governor's directive) continuing disobedience to every
act or command which had not the backing of lawful authority. Even had it
done so, I feel some doubt as to how far this is a possible conception when
over a prolonged period no steps are taken by the Sovereign himself to do any
acts of government and the results would produce a pure and continuous chaos
or vacuum." If this opinion were ever accepted by the courts it would represent
a unique departure in English constitutional iaw.
it has enacted that any legislative or admin

regime are without legal effect.98
Hence it was recently decided in Adams v
who obtained a decree of divorce in Rhodes
appointed after U.D.I., must be regarded as
to remarry. It was said in that case that R
jected to a legal blockade parallel to the ec
sanctions policy, designed to make the regime
issues under discussion here amount to asking
opening a general legal blockade on all syste
some defined criterion of immorality. It is su
make anyone capitulate and that, even as
little effect if this step were taken in isola
is, of course, not to deny that there are good
combined economic and legal gestures i
Rhodesia.)
It is therefore submitted that the gene
arising out of criticism of the revolution case
S. (7). Conclusion
Kelsen's theory describes legal science as that practical discipline
which expounds as a logical unity any effective regime of force.
The grundnorm is the hypothesis which closes up the arch of legal
logic. It enables the legal scientist to interpret the legal norms
effective within a territory as a logically consistent field of meaning.
Its actual content in any particular territory must include a reference
to all the fundamental sources from which the validity (Validity/1) of
individual legal norms is derived. Some such hypothesis is needed to
justify the ascription of absolute validity within the system (Validity/2)
to the contents of the individual norms, which is made by the legal
98 n. 81, supra.
99 [1970] 3 W.L.R. 934. A superior court could, in theory, reach a different
conclusion if (a) it adopted the interpretation of the effect of non-recognition
suggested by Lord Wilberforce in the Carl Zeiss case (n, 96, supra); and (b)
it preferred the interpretation of the legislation of 1965 suggested by Lord Pearce
to the interpretation of the majority of the Privy Council in Madzimbamuto's
case, n. 81, supra. [And see note in Case and Comment, supra, p. 37, Ed.]
1 At p. 951. In view of his understanding of the purpose of the 1965 legislation to
be " blockade," it is difficult to understand why Sir Jocelyn Simon P. did not
accept the submission that all decrees issued by judges purporting to act under
the rebel constitution should not be recognised. On 7 April 1970, the Senior
Registrar of the Probate Divorce and Admiralty Division issued a practice
direction by which no grant of representation made by the High Court of
Rhodesia after 13 September 1968 (the date of the Ndhlovu decision) will, now
be resealed by the High Court of Justice in England—[1970] 1 W.L.R. 687.
Current United Kingdom legislation has conferred on the English courts juris¬
diction to grant divorces to unfortunate women in the position of the petitioner
in Adams' case.
scientist when he interprets these contents acco

canons of subsumption and non-contradiction.
The grundnorm changes when the legal norms
territory change in such a way that a legal scientist
them as a logically consistent field of meaning by
grundnorm which refers to new sources of la
because, only if he describes effective legal norms, d
fulfil his role.
The judges in Pakistan, Uganda and Rhodesia we
in the role of legal scientists when they found th
r£gimes were legal, because they were confronte
evidence that, whatever decisions they reached, t
be successful.
It is true that Kelsen's theory does not directly authorise a judge

to make any particular decision. But indirectly it suggests that, when
legal science gives a clear solution to a case, the judge ought to adopt
that solution, and this is true when, soon after the occurrence of a
revolution, the question arises: has the grundnorm changed? The
reason why it has this suggestive force for a judge is that the theory
assumes that legal science is a socially useful activity, which it could
not be if it were not an essential part of the role of a judge to act as a
legal scientist and to apply the conclusions of legal science.
The theory thus implies that a judge is under a legal duty—that is,
a duty consonant with judgeship—to accept successful revolutions. It
seems probable that this duty is not outweighed by any general legal
duty of constitutional loyalty. It may, however, like any other legal
duty, be outweighed in particular instances by moral or political
duties.
No fundamentally anti-positivist theory, which would deny the

characterisation "legal" to systems lacking some specific moral
element, can be sustained. It would have practical disadvantages and
few, if any, political advantages.
Kelsen's theory (like any other positivistic theory of law) entails
the conclusion that the internal law of Rhodesia, for the purposes of
legal scientific works (textbooks on Rhodesian law), is that law which
is effective there today in accordance with the constitution promul-
gated by the rebel regime—although this is not so for the purposes
of English conflict of laws nor, except on an extreme version of
the declaratory theory of recognition, for the purposes of public
international law.
However, legal science is not the noblest activity of the human

spirit, but merely a practical discipline with useful, but limited, aims.
The history of natural law theory consist

with noble endeavours which it could not advance.
The fact that one is acting in the traditional role of a legal scientist
if one describes effective racist law as "valid law," or that one is
acting in the traditional role of a judge if one applies it according to its
content, is not the last word in political justification of one's activity
Political opponents of the Smith regime will approve the decision on
the part of two of the Rhodesian judges to resign, rather than to con¬
tinue to act as judges under that regime.2 If they are positivists, they
will have done so precisely because " acting as judges " entails carry¬
ing out ministerial functions in the service of the regime of force
actually established.
If there is a single political maxim underlying legal positivism, it
is that: " propaganda and gestures apart—* legality' without force is
nothing worth." It is suggested that, in the context of the Rhodesian
rebellion, this maxim does present the issues more honestly than any
attempt to introduce a value element into the definition of law.
2 Fieldsend J. resigned in March 1968, Dendy Young J. in August 1968.

Why Does The Grund Norm Change J.W. Harris

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Why Does The Grund Norm Change J.W. Harris

Transféré par

Droits d'auteur :

Formats disponibles

Editorial Committee of the Cambridge Law Journal

When and Why Does the Grundnorm Change?

WHEN AND WHY DOES THE GRUNDNORM

1 The State v. Dosso (1958) 2 Pakistan S.C.R. 180; Uganda v. Commissioner

individuals whose behavior the new order

Discussion in legal periodicals of the decisions of the courts in

7 "Splitting the Grundnorm" (1967) 30 M.L.R. 156, 171-172; "Rhodesia: the

according to Kelsen's theory, the grundnorm ch

S. (2). The Functions of the Grundnorm

The Grundnorm*s Two Functions

He gives, as an example of the former fun

Legal Science and Logic

conceives of its object as a logical unit: a system of non-contradictory norms."

contradictory; and one legal norm may be deduced f

Content of the Grundnorm

norm is that it stipulates a coercive act."2

Form of the Grundnorm

24 Stanford, p. 1131. It is this internal characteristic which distinguish

25G.TL.S,p .60-61, 37-138.PT.L,p .54-60,238.

carried out only under the conditions and in the w

28 G.T.L.S., pp. 115-116.

specifically wanted such norms to operate on the constitutional level

(F) Particular fully con-

Aims of Legal Science

35 Sale of Goods Act 1893, s. 51 (1).

general rules which are available for particular appl

S. (3). The Concept of Validity

true that they may both be expressed in th

Four Senses of " Validity "

be valid." But Validity/2 is primarily a concep

*' Ross, On Law and Justice, 1958, pp. 25-26.

If a norm is Valid/5, in the sense that it actually

Criticism (i) rejected

S. (4), When Does the Grundnorm Change?

government, which is not inaccurately desc

The grundnorm, however, is not a social

Grundnorm changes when lawyers make new

While attitudes of commitment and even

56 "If a determinate human superior, not in a

develop, the grundnorm will not change at all so lo

Jjegoi science and efficacy

If there is a written constitution which does not specify custom as a source of

and (if they are to fulfil the role appropr

Efficacy, a practical test?

59 G.T.L.S., p. 437 ; P.T.L., pp. 46-48, 86-87. Stanford, p. 1142.

no objective factual judgment as to efficacy can b

obeyed or applied " by and large? "67 It w

clearly not answer the question: which grundn

Efficacy and the judge

72 The course recommended in the Annual Survey of Commonwealth Law (1967),

This was not the view of the judges in

On the basis of the foregoing discussion it is submitted that the

can only interpret the content of these by and large

S. (5). Why does the Grundnorm change?

81 The Southern Rhodesia (ConsUtitution) Order 1965 (1965 S.I. 195

piece of propaganda against a racist r

Implications of the pure theory for a judg

science is socially useful, which is precisely the r

Thus, where a revolution is, or is predicted to be going to be,

revolution"), in accepting the laws of

The point is that judges are normally thought of as upholders of

S. (6). Ought Effectiveness to be Enough?

Morality and the definition of law