![handle is hein.journals/hbijllw42 and id is 1 raw text is:
Hitotsubashi Journal of Law and Politics 42 (2014), pp.1-10. C Hitotsubashi University
IS THE CONCEPT OF THE BASIC NORM HELPFUL?*
SUSUMU MORIMURA*
I. Introduction
The aim of this paper is to examine whether and how the idea of the Basic Norm
(Grundnorm), which plays a distinctive, apparently essential role in Kelsen's Pure Theory of
Law (Reine Rechtslehre), is helpful to understanding law. My answer to this question will be
in the negative on the whole. Before going to my main arguments, however, let me first clarify
some preliminary points.
First, I use Kelsen's two major books in English, General Theory of Law and State
(Kelsen [1945]) and Pure Theory of Law (Kelsen [1967]), as the canonical texts of his legal
theory. Although the early and latest phases of his legal theory are said to be significantly
different from the middle one, I focus on the latter, which is stated most systematically in these
two books. They are also important in that they, unlike his books prior to his migration to the
United States (e.g., Kelsen [1925][1934]), deal squarely with customary law as well as statute
law, thereby bringing into focus the problems inherent in Kelsen's legal theory which identifies
legal system with state. And I will be concerned only with Kelsen's most important tenets on
the Basic Norm, and not with the sometimes self-contradictory details of it.
Secondly, I do not claim to be well-versed in the formidable critical literature on Kelsen's
legal theory. Indeed, my research in this field is limited to several books and papers in
Japanese and less in English, so I am afraid that many of my observations below may have
already been made in some ways by critics in the past. But I do hope to add something
original to the past literature.
Finally, my critique is intended to be internal to Kelsen's own purpose; it is not an external
critique coming from some moral theory or pragmatic concern of the legal profession. I follow
Kelsen in recognizing the significance of non-evaluative analytical legal theory and finding
nothing objectionable in his Pure Theory of Law's refusal to answer the problems of legal
practice. In fact, I find many valuable and fruitful insights and ideas in his theory, including
the hierarchical nature of the legal system, the distinction between the primary and secondary
norms, and the validity of unconstitutional laws, though I do not necessarily agree with
Kelsen on those topics. I also disagree with those critics who claim that the Pure Theory of
Law becomes impure and thus defective when it takes into account sociological facts in the
basic norm itself (see section III below). My evaluation of Kelsen's legal theory is basically
favorable. My critique of the Basic Norm is internal in that it claims the concept is unhelpful
even if we work in such a value-free legal theory as advocated by Kelsen. In other words, the
* This paper was originally presented at International Symposium on Hans Kelsen and Contemporary East-Asia
Legal Civilization, which was held at Law School of China Renmin University, Beijing, China, May 25-26, 2011.
* * Professor of Law, Hitotsubashi University, Kunitachi, Tokyo](ViewImageLocal?handle=hein.journals/hbijllw42&div=1&collection=&method=preview&ext=.png&size=3)
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