Introduction. Revolutionary Legality

• Author: Simeon C.R. McIntosh
• Profession: Professor of Jurisprudence and Dean, Faculty of Law, University of the West Indies at Cave Hill, Barbados
• Pages: 11-44

Introduction | xi

INTRODUCTION

REVOLUTIONARY LEGALITY

The concept of revolutionary legality1 would seem a serious

contradiction in terms; for the sense in which the term is used in

jurisprudence and political theory means that a revolution is

understood to be an illegal act, often the violent overthrow of an

established legal order and the institution of a new sovereignty in its

place, which, in due course, may become a valid legal order. It is now

an historical truth that revolution is one of the principal means of

founding a new state; and the United States of America stands as

the most successful example in modern history of this truth. As Paul

Ricoeur suggests, ‘[revolutionary] violence brings onto the stage of

history … new States, dominant civilizations, ruling classes;’2 ‘[t]heir

violent birth then becomes resorbed in the new legitimacy which they

foster and consolidate.’3 But this new ‘republic,’ this new ‘legality’ is

marked from its inception by violence which was successful. Indeed,

‘All nations, all powers, and all regimes are born this way.’4 What,

then, becomes a critical question for jurisprudence and political theory

is whether the new ‘legality’ is capable of being a State of justice and

law. This is a question of the moral legitimacy of the State; ‘the belief

in the rightfulness of the State, in its authority to issue commands,

so that those commands are obeyed not simply out of fear or self-

interest, but because they are believed in some sense to have moral

authority….’5

The principal proponent of the theory of revolutionary legality in

twentieth century legal philosophy was the Austrian-born philosopher,

the late Professor Hans Kelsen. His theory of revolutionary legality

xii | Kelsen in the Grenada Court

was articulated as part of his general theory of law, which he dubbed:

‘a pure theory of law’. As Professor Michael Hartney suggests,

Kelsen’s work, the Pure Theory of Law, ‘was intended to set out the

conceptual framework which would allow any exposition of the law of

a given jurisdiction to be scientific.’6 Law had to be cleansed of certain

noxious influences, such as ‘a vestigial belief in natural law,’ in order

to be scientific.7 Thus, for Kelsen, ‘a sound philosophy should allow

us to grasp the essence of law and avoid confusing it with other

disciplines, as traditional jurisprudence does when it confuses law

and morality.…’8

In his theorizing, ‘Kelsen also sought to offer a corrective to a

problem in traditional jurisprudence’s account of a legal system as a

collection of disparate elements. Rather, he wished to show that there

is a basic unity beneath any apparent diversity within a legal system,

evidenced in certain dualities of public and private law, creation of

law (by lawmakers) and application of law (by courts), municipal law

and international law.’9 For Kelsen, the unity of a legal system is

guaranteed by a basic norm which validates all the other norms

comprising the system. Law is a system of norms. Thus, a legal system

is a normative order.

But law is not a normative order in the moral sense. Rather, it is

to say that legal norms are not descriptive statements of empirical

reality, but are instead a set of ‘meanings’ or interpretations of acts

of will that are directed toward the conduct of others.10 Legal norms

are however not addressed to the subjects of the legal system; they

are rather addressed to the officials, and direct them to impose

sanctions under certain conditions.11 In sum, then, legal norms are

‘ought’ statements, though not in the moral sense, and they merely

serve to indicate that certain legal consequences should follow from

certain actions.

But there remains the problem of grounding the validity of a legal

system, given that Kelsen’s basic norm is a presupposition in juristic

thinking. The basic norm is presupposed in order to ground the validity

of all the legal norms forming a positive legal order. As a

Introduction | xiii

presupposition, the basic norm has no content whatsoever; it merely

assures that there is a normative basis for the validity of legal rules.

Specifically, then, the problem is one of grounding the validity of the

constitution, since the constitution is, in reality, the highest positive

norm of an existing legal system, and which regulates and determines

the creation of all other enacted norms of the system. It is therefore

the constitution that, in reality, gives unity to a legal system.

Kelsen saw the problem of the validity of the constitution as a

transcendental-logical deduction, which, in order to avoid a situation

of infinite regress, stops at the historically first constitution. Thus,

‘when we regard a legal order as grounded we must – logically must

– be posting a “historically first constitution” together with a socially

prevailing “basic norm” conferring on the first constitution’s

promulgators the authority to make it to be the law, and thereby

obligate the country’s posterity … to grant the force of law to everything

that has issued from or pursuant to a chain of amending clauses

depending from the first constitution.’12 As Kelsen puts it:

If one asks what is the basis of the validity of a given constitution, the

answer may be that that constitution came into existence through

amendment of a preceding constitution, and that this amendment was

made in a way that constitutional amendments on the basis of the

preceding constitution have to be made. Thus one can refer back to a

historically first constitution. This historically first constitution too is, to

begin with, the subjective meaning of an act of will or a number of acts

of will; and if one asks why the subjective meaning of the act creating

the constitution is also its objective meaning – that is, a valid norm –

or, in other words, what is the basis of the validity of this norm, the

answer is: because one presupposes, as jurist, that one ought to conduct

oneself as the historically first constitution prescribes. This is the basic

norm.13

It means, then, that the validity of the historically first constitution

of a State is founded on the presupposed validity of the Basic Norm.

But in order to ‘grasp the essence of the basic norm, one must,

above all, keep in mind that it refers directly to a particular constitution

that has in fact been laid down, whether created by custom or by