What holds the Legal Pyramid together?
Most law theories begin with the obvious: we have rules, they are enacted in legislatures or announced in courts, and we obey them because they are validly made. In the early twentieth century, Austrian legal theorist Hans Kelsen believed this picture of law was incomplete. In his Pure Theory of Law, he asked a different question: what counts as law at all, and why are we bound by law in a systematic way? His answer was the idea of a hierarchy of norms, sometimes called the pyramid of law. At the very top of the pyramid, he proposed a hypothetical norm, the Grundnorm or "basic norm."
For Kelsen, the law is not merely a collection of isolated rules. It is an ordered system of norms. Each norm in the system derives its validity from another norm higher in the hierarchy. A municipal by-law may tell residents what to do about parking, but the municipal by-law derives its validity from a statute produced by the provincial parliament. The statute derives its validity from the constitution. The constitution is even higher and gives validity to everything. The image of norms derived from higher norms is why it is called the "pyramid."
The pyramid accounts for the coherence of law. Without the pyramid, norms might seem like isolated commands with no justification. The pyramid allows us to see why a law is valid: it is valid because its force derives from a higher rule that grants it. This validation structure goes up until there is no higher rule conceivable. At this point, Kelsen added the Grundnorm.
The Grundnorm is not the written constitution, nor is it even a rule enacted by anyone. It is a presumed beginning. Kelsen envisioned it as a basic assumption: the constitution should be followed. If we do not presuppose this basic norm, the chain of validity disappears. Every norm needs a higher norm to support it, and without some arbitrary endpoint, the reasoning never ends. The Grundnorm provides the endpoint. It is the metaphorical invisible capstone on the pyramid holding it together.
In developing this structure, Kelsen wished to purify legal science. He wanted to avoid political or moral justifications and focus on law as a normative system. Law, for Kelsen, needed to be constrained to its own terms and not be confused with sociology, or history, or ethics. That is why he labeled his project, the "pure" theory of law. The pyramid that ends in the Grundnorm was his model for illustrating law as a closed, self-validating system of norms.
To see how this works in the real world, consider a criminal statute that prescribes a penalty for theft. The statute’s validity is derived from the legislative process of the constitution. The constitution grants the authority of parliament and the legislative bodies to create statutes of this kind. But why does the constitution bind anything? Kelsen’s answer is that we presuppose the Grundnorm that the constitution ought to bind its citizens. We do not question the origin of the Grundnorm itself, as it is not sourced from another norm. It is a prerequisite for furnishing intelligibility to the entire system of norms.
This theory had important ramifications. It provided a means of accounting for the unity of law. It also had the merit of allowing one to avoid tying law specifically to morality or divine command. For Kelsen, the pyramid made sense of modern legal orders that frequently have authority dispersed over a number of levels. It also allowed them to compare different legal orders, as each has a different Grundnorm that underpins the order.
However, the Grundnorm has been controversial from the outset. Critics assert that it is too abstract and is a fictional tool created to fill an explanatory gap. It does not describe anything in the world we inhabit. One cannot read about a Grundnorm in a statute or in a constitution. A Grundnorm is simply a presupposition that legal practitioners rely on to explain validity. Some critics think of it like a philosopher's safety net, there to prevent infinite regressive questioning but nevertheless a notion/idea that cannot be pointed to directly.
Others have suggested that Kelsen's purity of thought comes at a cost. By making clear the specificity of law divorced from morality, he allowed for the possibility of 'unjust' laws being seen as valid as long as they respected the pyramid structure of the legal order. For instance, laws established by authoritarian regimes could still fall within the Kelsenian understanding of legality, if those laws could be traced through to a constitution that was based on an approving Grundnorm. Critics of Kelsen's theory find this quite disturbing because it separates legality from justice. Kelsen would respond, "Legal science is to describe the law as it is, not as it should be." Morality and politics were not included in law, which needed to be described simply as a system of norms - the pyramid was the best illustrative way to order that system.
Regardless of criticism, Kelsen’s theory solidified thinking about law - the way many people still think about law today. For example, constitutional courts often act as guardians of the highest level norms in the system. When constitutional courts strike statutes down as unconstitutional, they are asserting the notion that lower norms must derive validity from higher norms. The pyramid image explains why this review makes sense in the framework of law - it also establishes how revolutions or coups can disrupt legal order - if a new constitution is imposed a new Grundnorm may be presumed, and the pyramid would be rebuilt supported by different bases.
Kelsen’s pyramid can be an appropriate thinking model for students and citizens. It outlines how rules are not in isolation, but rather interconnected with chains of validation - it also explains why constitutions are so radically central. The constitution is of course near the apex of the pyramid, meaning that a change at this level of law has implications on everything below. Even if we carry on presupposing Grundnorm is abstract, the structure it supports allows us, or permits us, to see law as an orderly structure rather than a pile of directives.
The question "What that holds the legal pyramid together?," Kelsen, responds with crispness. It is that to which we presuppose to be the Grundnorm, and that is the presupposition that lends validity to a constitution, and then through the constitution lends validity to every other rule. It is the presupposition of the Grundnorm that permits stability to Kelsen's pyramid, not morality external or agreement amongst politics, nor just societal obligation, but a starting point presupposed and thereafter built down.
Whether we agree or disagree with this hinges on the wants we are having as legal theorist or legal citizens. And if it is clarity, coherency of description of how law systems operate, Kelsen's pyramid provides this. If we want law that is connected to some justice, morality, or social facts fairly closely, or the abstraction of the Grundnorm doesn't satisfy this want, we might reject Kelsen's model. Regardless of whether we agree or disagree, Kelsen's Pure Theory of Law will continue to shape debates. It challenges us to see law in ways not to do with personality, politics, or other social norms, but rather a system of norms that are held together through a presupposed normative chain resting on a presumed foundation.
