Monday, March 19, 2012

Grundnorm--Following up on Grotius

Hans Kelner

I know you probably thought I was going to let you off the hook when it came to legal references for awhile, but if you happen to read the comments here, and understand the tendencies of this blog (not that I do), you probably assumed this one would find its way to a post at some point.

Although I tend to write posts about words that I think I understand, but don't, really, I also sometimes like to write up those that have come across my path for the first time. Here's the context in which this word was used as a comment by Adrian McKinty:

Where laws come from is a very curious, circular process. We all know that Congress makes the law but where is the law that says we have to obey Congress? Well that's the Constitution, but where's the law that says we have to obey the Constitution? Well the Constitution was ratified by the assemblies of the original 13 states. Where's the law that says that we should obey those assemblies or accept what they did 230 years ago as being valid now? At some point you basically have to stop asking why and admit that the Grundnorm (theres another word for you) is an axiom that you just have to have faith in.

So I think we can all see more or less what the general idea is here. I originally interpreted it as something like "the source" and thought the word translated as something like 'the ground normal'. For better or worse, I've also been watching the new TV show 'Grimm', where a lot of fantastical characters masquerade as human beings and as they are supposed to have Germanic fairytale aspects, they all have names like Blutbaden and Reinegens, so I have to say this word is getting a bit mixed up for me with its Grimmer associations...

But we actually have one particular person to thank for this term, namely, Hans Kelsen. Kelsen was an Austrian Jew who lived in Vienna in the much vaunted fin-de-siecle. There is a lot to say about this vital multi-cultural era, but basically, it was a pressure cooker. Kelsen is someone who knew both ends of the spectrum--he actually wrote the Austrian post WWI constitution, but in the end was forced to flee to the U.S. because he fell out with the Nazis.

Kelsen was a prodigious scholar, but his most famous book is The Pure Theory of Law, which was published in 1934. It's in this book that he comes up with the concept of the Grundnorm, which really just means 'the basic norm'. He was looking for a kind of protolaw, stripped of all its cultural and governmental trappings. Though it may sound and possibly is a bit abstract, his reason for seeking it is apparently as a justification for why we should obey the laws of our own particular circumstances.

I'm really poaching this all from a very accessible pair of articles on Kelsen by William R. Long which you can find here and here. Some of the things I find interesting in his discussion are that, though the scintillating brew of the Austro-Hungarian Empire gave rise to many great movements and ideas, including the Theory of Relativity and psychoanalysis, it also, being complex and leading to various uncertainties, created a craving for purity and the absolute. A retrograde desire, perhaps. But Kelsen's ideas seem, like Grotius', to be important to our own times, because we continue to need to think about ways that particular and local law and culture can be connected to a more global way of seeing.

(Thanks to PQ of A Building Roam for finding and sharing this link.)


  1. Seana

    Kelsen made a noble stab at it, but I wasn't completely convinced by The Pure Theory of Law. Two more modern attempts to come up with a grundnorm are HLA Hart's excellent 'The Concept of Law' and Ronald Dworkin's 'A Theory of Justice'. Dworkin is very readable. Indeed if you're only going to read one book on jurisprudence in your life I'd rec the Dworkin.

  2. Kelsen's theory does sound a bit like wishful thinking, and the whole idea of purity in that era is troubling to me.

    I'll put Dworkin at the top of the list then, as it is interesting stuff when it's not too jargonish.

    I did like William Long coining the term "jurisprude" in referring to Kelsen.

  3. Was thinking of you recently while reading when I came across an epigraph by Grotius!

  4. Me and Grotius in the same thought. Whoa. That is not going to happen in too many minds, I'm thinking!

  5. Seana

    Sorry dont know what I was thinking there. The Dworkin book is the excellent Law's Empire. Do not read A Theory of Justice. Its a terrific book but it is very technical.

    1. Thanks, Adrian. I saw that this was the answer over on your blog, but for the one person in a million who happens along here and is also eager to read about jurisprudence now, it's nice to have the info here.