In footnote 4 of the majority opinion in United States v. Carolene Products (1938), an economic regulation case, Justice Harlan Fiske Stone held that the Court should, when considering economic issues, adopt a relaxed presumption of constitutionality using the rational basic standard that advocates consideration of Parliament. but if the legislation infringes fundamental rights or “distinct and isolated minorities,” the court should presume that the laws are unconstitutional. Thus, in Stone`s words, civil rights and individual freedoms should occupy a “privileged position” in the Court`s review. The absence of a fully effective global justice system limits the ability to regulate compliance with the hierarchy of norms. One possible generalization, at least in the national legislation of civil and customary law States, is that the constitution of a country has authority superior to any other law. However, this does not apply to all judicial systems. For example, some systems do not separate religion from state, and religious law occupies a privileged position in the hierarchy of laws. In Islamic law, the Qur`an is the highest authority. Ethics: Tradition of Natural Law | Hume, David: Moral Philosophy| Nature of the right | Nature of the Law: Legal Positivism Did Kelsen simply violate his own observance of Hume`s injunction not to derive “should” from “east” here? One gets the distinct impression that Kelsen was aware of a serious difficulty in his position. In both editions of Pure Legal Theory, Kelsen plays with the idea that changes to the fundamental norms of municipal legal systems can flow legally from the fundamental norm of international law. It is a fundamental principle of international law that state sovereignty is determined by the effective control of a territory or population (PT1 61-62, although in PT2, 214-215 the idea is presented with more hesitation; in particular, some commentators argue that Kelsen took the idea of a universal legal order much more seriously than what is proposed here – see Green 2016).
However, this led Kelsen to the rather uncomfortable conclusion that there is only one fundamental norm in the entire world, namely the fundamental norm of international law. In any case, the main concern lies elsewhere. This concern stems from the fact that it is very difficult, if not impossible, to maintain both a deep relativistic and anti-reductionist position in relation to a particular normative field. If you consider that the validity of a certain type of norm is entirely relative to a particular point of view – in other words, if it is only about people`s actual behavior, beliefs/assumptions, and attitudes – it becomes very difficult to separate the explanation of this normative validity from the facts that make up the relevant point of view (i.e., , facts about people`s actions, beliefs, attitudes, etc.). This is essentially what was meant earlier by the remark that Kelsen had no choice but to admit that the validity of the basic standard depends on its effectiveness. The normative relativism inherent in Kelsen`s conception obliges him to base the content of the fundamental norm on the social facts that make up its content, namely the facts about the actions, beliefs and attitudes that are actually maintained by the population concerned. And this makes it highly questionable that reductionism can be avoided. In fact, what Kelsen has really offered us here is an invitation to give a simplistic explanation of the concept of legal validity in relation to a set of social facts, the facts that constitute the content of a given fundamental norm.
(This is exactly the kind of reduction that H.L.A. Hart later offered in his presentation of the rules of recognition as social rules [see Hart 1961, p. 1961, p. 1]. 105, where Hart alludes to the difference between his conception of the rules of recognition and Kelsen`s idea of the basic standard.]) 22In the context of the legal positivist separation of law and morality that he advocated, (a) Hart is careful not to claim that citizens must accept the law as a reason for acting (he does not even discuss the circumstances in which citizens should do so); and (b) it provides a broad and open set of reasons why citizens might accept the law as a reason for action. Hart writes that a citizen “may obey him [the law] for various reasons, and among these may often, but not always, be the knowledge that it is best for him to do so.” 36 And further: “Belonging to the law cannot be motivated by it [moral obligation], but by calculations of long-term interest, or by the desire to perpetuate a tradition, or by an altruistic concern for others. 37 12Another way of approaching the general point is John Gardner`s observation that law is voluntary in a way that morality is not. Gardner argues that the claim of morality over all of us as human beings is “inevitable”.20 According to Gardner, one cannot reasonably ask whether one should follow the precepts of morality.21 But this legal question can reasonably be asked.22 The only other way to monitor the implementation of the hierarchy of norms is directly through judicial decisions. However, in some countries, this application and review of standards takes place only in the context of a particular controversy, and in many countries these decisions apply only to the particular case.
In all the systems of morality which I have encountered so far, I have always noticed that the author proceeds for a certain time in the usual manner of reasoning and establishing the nature of a god or of making observations on human affairs; When I am suddenly surprised to find that instead of the usual copulations of sentences, there is and there is not a sentence that is not related to a target or a homework. This change is imperceptible; is of an ultimate consequence. For since it does or should not express a new relationship or affirmation, it is necessary that it be observed and explained; And at the same time, a reason should be given for what seems completely unimaginable, how this new relationship can be a derivative of others that are completely different from them. I am convinced that a little attention [up to this point] would undermine all vulgar moral systems, and let us see that the distinction between vice and virtue is not based solely on the relations of objects, nor perceived by reason. Merkl (1923, p. 2010), Merkl (1931, p. 260), Koller (2005, p. 109). See also Borowski (2005, p. 137f), who considers that it is not possible to construct a two-tier legal order, so that there must always be at least one level between the highest and the lowest. This theory is recognized as so fundamental that it is taught to students from the first semester, although in a very simplistic way, which does not really reflect the revolutionary character that the theory had at the time it was developed. Footnote 1 In any case, this theory is common sense in the Austrian scientific community.
This applies not only to the followers of Hans Kelsen`s “pure legal theory”, which is still very popular in Austria, but also to his critics.