H. Kelsen

One of the most interesting Jurisprudence theorist was Hans Kelsen for his contribution to thinking of law as a science. If you cannot have an 'ought' from an 'is' then according to Kelsen norms of a legal order, are all 'ought' propositions. Created by acts, the norm is the subjective meaning of the act. A legal order is created by legal acts and legal officials are the ones authorized by these same acts to perform these acts. So, norms are rules and some rules can become legal rules that are created by humans in the written form which are directed at those people who are recognized by the same type of legal rule as officials to perform these acts. The acts that they must perform are again rule's written down. The act of writing them down and then decreeing them as valid exists by the existence of a basic norm. The validity for all legal norms is the basic norm which is assumed as a rule stating that these rules ought to be obeyed.

Ok, to understand this a little better we assume that there is a pre-existing rule or norm that says all rules written down by an official body are laws and therefore are valid. The performance of writing them down are acts of the officials who perform this obligation of writing them down as law. The entire legal order or system is therefore tracible back to the basic norm that is an assumption that these norms ought to be followed and therefore are valid. You cannot derive an 'ought' from an 'is' only from another 'ought'. So, if you are not to commit murder and therefore 'ought' not commit murder then your obligation stems from the fact that this act or written form of the law 'ought' to be followed. The funny point about this argument of Kelsen is that it is only the designated official to whom this rule applies because the law must carry with it a form of punishment. It is this punishment that provides the action to the official. So, the official who adjudicates the law is the one which prescribes the punishment to those who transgress the law or those whom have a delict. By transgress here I mean those who commit circumstances that give officials the power to act coercively against them.

Again, to understand this a little better we must think of the law directing officials to do something that punishes those who break the delict. This idea of a delict, which he derives from roman law, is that if the law says that murder is against the law then this means that anyone who commits murder need to be punished. It is inherent in the meaning of what the law intends as behavior directing that the law is coercive and a punishment must be imposed. So, the citizen does not break the law but only facilitates the conditions for the official's ability to perform some sanction against them. They create the circumstance that permits official action and cannot break the law so to speak where it is the official who is the only one breaking the law if they do not sanction the citizen if found to have, for example; committed murder. Therefore, the official must punish those who commit murder otherwise they themselves have broken the legal norm. Law itself is coercion of the people and the monopoly of punishment is in the hands of the State who is authorized under a legal norm to monopolize it.

The 'Grundnorm' is located in the transcendental condition that exists outside of the law aiding in the understanding of the or what the law is. It is a norm and norms are rules but there are different types of these rules but what we are concerned with are legal rules. And the 'Grundnorm' is what Kelsen uses to describe what is our understanding of what a legal norm or law is and what makes a law valid. It is an assumption that is held. The 'Grundnorm' in the ultimate norm or rule that confers all of the validity to the other norms or rules in the legal system. According to Kelsen we must go through a hierarchy of norms to because only such a norm which is not written down can confirm validity on other norms or assumptions on the validity of certain laws. Law must be effective but it not necessary that it is and it's only necessary that it be assumed to be followed by authorities.