About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

24 Hong Kong L.J. 207 (1994)
The Basic Norm and the Basic Law

handle is hein.journals/honkon24 and id is 229 raw text is: THE BASIC NORM AND THE BASIC LAW E J W Harris* From 1 July 1997 the fundamental constitutional document which will, as a matter of form, govern legal practice in the Hong Kong Special Administrative Region of the People's Republic of China is the Basic Law.' The most internationally famous legal philosopher of the 20th century is the late Hans Kelsen, one of whose celebrated theoretical constructs was the 'basic norm.' There is no reason to suppose that the former constitutional document and the latter theoretical construct have anything in common, or that any light is to be shed on the one by virtue of the other, merely because of the common adjective 'basic.' It is extraordinarily unlikely that those who drafted the Basic Law had any interest in, or any familiarity with, Kelsen's theory. On the other hand, all legal theories advance contentions, of one kind or another, about legal goings-on. If they purport to be general theories about law, they make supposedly universal claims - usually at a very abstract level - about legal practices. If 'foundationalism,' in some sense, is claimed to be a universal feature of law-talk and legal administration, should we not expect to find - if the theoretical claim is sound - that a particular instance of constitutional foundationalism exemplifies the universal? If it does not, the theoretical claim needs revising or is simply false. If it does exemplify the universal, then the theory itself may throw light on what the aspiration to formal constitutional foundation amounts to. It will be my contention that Kelsen's theory does throw such light on the Basic Law, more especially in relation to Kelsen's seemingly provocative claims about 'legally irrelevant materials.' Kelsen's theory summarised2 When that social institution called 'law' is present in a territory, what do we find? We find individuals or groups purporting to issue prescriptions as to how Fellow of Keble College, Oxford. An earlier version of this paper was first delivered at the University of Hong Kong in March 1994, when I was invited to the university as part of its distinguished visitors programme. I wish to record my gratitude for the invitation and for the hospitality I received. Other versions of the paper were presented at the City Polytechnic of Hong Kong and to the Hong Kong Bar Association. I have benefited greatly from comments made during discussions on these occasions. 2The following abbreviations will be used to refer to translations of Kelsen's major works: EL = Essays in Legaland Moral Philosophy (selected by Ota Weinberget), trans P Head (Dordrecht: Reidel, 1973). GTLS = General Theory of Law and State, trans A Wedberg (Cambridge: Harvard University Press, 1945). GTN = Genera!Theory of Norms (published posthumously), trans M Hartmey (Oxford: Oxford University Press, 1991). PTL = Pure Theory of Law (translation of Reine Rechtslehre 2nd ed), trans M Knight (Berkeley and Los Angeles: University of California Press, 1967). WJ = What isJustice?Justice. Law and Politics in the Mirror of Science: Collected Essays (Berkeley and Los Angeles: University of California Press, 1957). The summary offered here takes no account of two notorious changes which Kelsen made in his theory towards the end of his life, since neither has any direct bearing on the issues discussed in this article. The first concerns Kelsen's claim, advanced in the second edition of Reine

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most