Grundnorm and Constitution:
The Legitimacy of Politics
T. C. Hopton*
Hans Kelsen’s Pure Theory of Law and its doctrine of the Grund-
norm has achieved a certain notoriety rather removed from its con-
tribution to jurisprudence as such. This notoriety arises from its
use by Commonwealth courts in analyzing the difficult political and
constitutional situations created in the aftermath of revolutions,
such as those in Pakistan in 1958 and Uganda in 1966.1 However,
its most complex and controversial application to date occurred in
Rhodesia following
the Unilateral Declaration of Independence
(U.D.I.) of 1965.2 There the courts moved towards acceptance of the
Smith regime and its new Constitution in a series of decisions of
major political significance. Since these decisions purported to
derive their validity from Kelsen’s theory, that theory becomes the
legitimate object of scrutiny.
In view of recent political developments in Quebec, the fund-
amental constitutional decisions made by the Rhodesian courts may
eventually assume a possible relevance to Canada. Also, given recent
events, there could well be another change of regime in Rhodesia
itself, with the new regime potentially viewed as a continuation of the
pre-U.D.I. regime or its legitimate successor. Thus, a decade later,
the judgments in the Rhodesian constitutional cases of the late
1960’s take on a renewed importance both within and without their
original forum. This paper will examine the courts’ use of the Pure
* B.A. (Sheffield) M.A. (Wales). Department of Politics, Leicester University.
In presenting this paper I am indebted to J.D. Finch of the Faculty of Law
of the University of Leicester who read drafts at each stage and made many
helpful comments.
Ex parte Matovu [1966] EA. 514.
‘ The State v. Dosso [1958] 2 P.S.C.R. 180; Uganda v. Commissioner of Prisons,
2 Proclamation no. 53 of Rhodesia, Government Notice, 1965, no. 737N
(reprinted in International Legal Materials (1966), vol.5, 230-31). See Mad-
zimbamuto v. Lardner-Burke N.O.; Baron v. Ayre N.O., Judgment no. GD/CIV/
23/66, Government Printer, Salisbury, 1966 (General Div., Rhodesia H.C.)
per Lewis and Goldin JJ.; [1968] 2 S.A. 284 (App. Div.); [1969] 1 A.C. 645 (P.C.);
R. v. Ndhlovu, infra, note 41; Dhlamini v. Carter N.O., infra, note 45.
19781
GRUNDNORM AND CONSTITUTION
Theory3 in those cases and the ensuing controversy this caused
amongst legal theorists.
After outlining the main legal events, it will be argued that the
Rhodesian judiciary, and notably Beadle C.J., misrepresented Kel-
sen’s positivist Pure Theory and its concept of Grundnorm in order
to disguise from observers, and perhaps from themselves, the pro-
foundly political nature of their actions. In particular, this paper
will demonstrate that the Judges used the Pure Theory to set the
terms of deliberation and to provide justification for upholding
the 1965 Constitution and, consequently, the Smith regime, an
utterly illegitimate use according to that same Theory. Furthermore,
it will be argued that according to the Pure Theory itself the courts’
actions could only be political and not the outcome of purely legal
reasoning. In this light, the paper will examine the debate that
arose concerning the role the Pure Theory was made to play. The
doubts raised about its integrity in that context will be shown to
be unfounded; the Rhodesian example does not provide evidence of
the immorality thought by some to be consequent upon a positivist
approach to law 4 This paper should vindicate Kelsen’s model in the
minds of those who would dismiss it as a result of its Rhodesian
misapplication.
Prior to U.D.I. (11 Nov. 1965), the Rhodesian courts were sitting
under the 1961 Constitution granted by Britain which reserved
certain residual powers to the British Government but at the same
time limited the right of the United Kingdom Parliament to legislate
for Rhodesia to cases where the Constitution was being breached
by local legislation.0 Entrenched therein was a Declaration of Rights
which guaranteed basic human rights and freedoms, such as ob-
servance of proper legal procedure and protection from discrimin-
ation by laws or administrative action; it also provided a right of
appeal to the Privy Council. In addition, the Colonial Laws Validity
3 Kelsen, General Theory of Law and State (1945). See also Kelsen, Pure
Theory of Law 2d ed. (1967) and Kelsen, Professor Stone and the Pure Theory
of Law (1965) 17 Stan.L.Rev. 1128. Where possible I shall use the expression
“Grundnorm” rather than “Basic Norm”.
4 Positivism is here taken to denote an attitude which radically separates
law from morality, and thus recognizes only positive laws as law, thereby
excluding systems such as “natural law”.
5 Constitution of Southern Rhodesia, 1961, granted by Southern Rhodesia
(Constitution) Order in Council, 1961 (1961, no.2314).
6 The Crown retained ultimate control over the power to pardon.
McGILL LAW JOURNAL
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Act, 1865,7 denied the right of a colonial legislature to alter a cons-
titution except in the manner stipulated in that constitution.
At the time of U.D.I. the Smith regime promulgated a new consti-
tution which, while retaining some provisions of the 1961
law,
introduced certain fundamental changes. The new Constitution
provided for the appointment of an official to serve as the Queen’s
representative, replacing the Governor. The Rhodesian legislature
took all power to make laws, denying any such power to the United
Kingdom Parliament, and made the previously entrenched clauses
of the 1961 Constitution subject to a majority decision of the legis-
lature. It also abolished the right of appeal to the Privy Council,
while providing for the continuing in office of the sitting judges,
subject to an oath of loyalty. The 1965 Constitution did not present
itself as deriving validity from its predecessor; it declared its own
validity.
In response to U.D.I. and the new Constitution, the Governor
issued statements dismissing the Ministers forming the government
and calling on the people to refrain from supporting the new regime.
However, the people were asked to carry on their normal tasks and
maintain law and order, the judiciary being specifically included
in that request. A few days later the British Government replied
with the Southern Rhodesia Act 19658 and the Southern Rhodesian
Constitutional Order, 1965.9 These were made retrospectively ef-
fective from the date of U.D.I. and denied legality to the acts of
the Rhodesian legislature, placing authority in Her Majesty
in
Council.'” During this period, the United Nations passed a resolution
(5 Nov. 1965) 1″ calling upon Britain to resolve the situation by the
use of force. This was followed by a Security Council resolution (12
Nov. 1965)12 calling on member states not to recognize the Smith
regime and to enforce sanctions against it. The British Government
eschewed the use of force and adopted a policy of negotiation, re-
lying on the effect of sanctions to ensure a successful conclusion.
The Rhodesian judiciary thus was placed in a very difficult
position. The new regime, presumably motivated by a desire for
7 28-29 Vict., c.63 (U.K.).
8 1965, c.76 (U.K.).
9 S.I. no.1952.
10The British Government did very little in using these powers for legisla-
tion.
11 G.A. Res. 2022 (XX), para. 11.
12 U.N. Doc.S/RES/216 (1965!Rev.1, 217 (1965).
1978]
GRUNDNORM AND CONSTITUTION
respectibility,’3 allowed the courts to continue in office, even after
the attempt to enforce an oath of loyalty proved unsuccessful. As
Beadle C.J. said:
That the present situation is a wholly unprecedented one seems beyond
question. It is unprecedented because here, during the course of the
revolution, a court which has not “joined the revolution” has been per-
mitted to sit and continue to function and now has to adjudicate as such
a court.’4
What the court had to adjudicate was the validity of the new regime
and its Constitution, and thus, ultimately, the success of the revolu-
tion. This occurred in a series of cases which questioned the legiti-
macy of the new regime, the most important being Madzimbamuto
v. Lardner-Burke N.O.; Baron v. Ayre N.O.”5 which, for obvious
reasons, became known as the “Constitutional Case”.
Both Madzimbamuto and Baron were subject to a detention
order made before U.D.T. and which, in terms of the state of emer-
gency under which it was made, had expired. Their detention was
nevertheless continued by an order made under the 1965 Constitu-
tion. This was challenged before the High Court of Rhodesia on
behalf of the detainees on the grounds that, “the Parliament of
Rhodesia has no legal existence and everything done by it is in-
valid.. .,,5” In reply, on behalf of the regime, it was argued before
the High Court (in terms redolent of Kelsen’s Pure Theory),
… that a legal order ceases to have validity when it loses efficacy and no
longer coincides with reality, and that this applies whether the new order
which replaces it came about in a legitimate way or not, provided only
that the prior efficacy of the old order has passed to the new one.17
In the alternative, it was argued (in terms imported from inter-
national law) that even if the regime was not clearly the de jure
government, it was undoubtedly the de facto government and, hence,
some of its acts were clearly legitimate.’8 Closely connected to this
Is As Dias says, this enhanced the show of legality and avoided the contro-
versy of packing the bench. See Dias, Legal Politics: Norms behind the Grund-
norm (1968) 26 C.L.J. 233, 258. The provision for oaths of the 1965 Constitutidn
was ignored.
14 Madzimbamuto v. Lardner-Burke N.O.; Baron v. Ayre N.O. [1968] 2 SA.
284, 307 (App.Div.).
15 Supra, note 2.
‘0 Judgment no. GD/CIV/23/66, Government Printer, Salisbury, 1966, 6
(General Div., Rhodesia H.C.).
11 Ibid., 9. The Court then referred to “The Basic Norm of a Legal Order”
in Kelsen, supra, note 3, 115. The applicability of Kelsen’s theory was rejected,
ibid., 17.
is Ibid., 26.
McGILL LAW JOURNAL
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was an argument that the enforcement of the regime’s laws was
necessary for public order –
the “doctrine of recognition through
necessity”. 9
The High Court 20 held that the first grounds of defence failed
because this was not an argument applicable to the present situation
where, despite the lack of a legitimate internal succession of re-
gimes, there was still an external sovereign. This being the case,
the Court could not decide whether such sovereignty had ceased,
internal efficacy not being considered as a critical test. In reply to
the alternative argument, the Court emphasized its reliance on the
regime for continuing in office and the lack of British assistance in
that respect. It was held necessary to avoid the risk of creating
what would be, in effect, a legal vacuum. Consequently, the Court
found that the detention orders at least were consistent with main-
taining order without detriment to the fundamental rights of the
1961 Constitution.2 ‘
Both arguments advanced by the government figured in the
appeal, with the former, that of “efficacy therefore validity”, setting
the terms of much of the deliberation.22 The appeal Judges carried
out an extensive survey of ‘cases from other legal systems (including
those arising from the American Civil War 23) and of numerous works
of jurisprudence. Amongst the latter, Kelsen’s Pure Theory was
prominent. The Chief Justice, in particular, imparted a strong Kel-
senite flavour to the proceedings, especially by the employment of
Kelsen’s concept of Grundnorm. The concept of Grundnorm will be
discussed in more detail shortly; suffice it to say for present pur-
poses that it is:
The fundamental norm, which furnishes the basis for the making of any
of the “ought” statements which represent the legal consequences or legal
meaning of certain physical acts within the operation of a legal system,
is that which gives the legal system its coherence and its systematic
form as a particularisation of a prescriptive phenomenon. All the other
stages in ‘the process can be tested for their legal validity against this
basic norm. Since, however, the basic norm constitutes the final standard
of legal validity, its own validity cannot be objectively tested. Its validity,
Kelsen tells us, must be presupposed or assumed.2 4
19 Ibid., 63. The discussion was in terms of salus populi suprema lex.
20 Lewis and Goldin J.J. presiding.
21 Supra, note 16, 74.
22 Supra, note 14, 284.
2 3 E.g., Baldy v. Hunter, 171 U.S. 388 (1898); Johnson v. The Atlantic Gulf
and West Indian Transit Co., 156 U.S. 618 (1894). See, supra, note 14, 335.
24Finch, Introduction to Legal Theory 2d ed. (1974), 121.
19781
GRUNDNORM AND CONSTITUTION
Beadle C.J. posed the problem as one of deciding whether the
Grundnorm had changed. This he proposed to determine by judging
the efficacy of the new regime, that is, whether it was generally
accepted and obeyed, thereby making efficacy the criterion of
validity of the Constitution. In this connection Beadle C.J. cited the
use of Kelsen’s theory in the earlier Pakistan and Uganda cases.’
The sections of Kelsen’s General Theory of Law and State specifi-
cally relied on were those entitled “The Principle of Legitimacy”,
“Change of the Basic Norm” and “The Principle of effectiveness”.26
With these references in hand, Beadle C.J. argued that although
the Smith regime was the effective government, it was impossible
to say whether it would remain so because, at that time, the out-
come of the application of sanctions could not be predicted. Hence,
it was not possible to accept the regime as having validity. He then
held that the old Grundnorm was inoperative but that the regime
had not yet succeeded in “setting up” a new Grundnorm. Conse-
quently, the legal system was in the position described by Dias;
where there is no longer a Grundnorm, some criterion which gives
the quality “law” has to be used, even if it belongs to the old
order.? Eekelaar’s view that there was a “split” in the Grundnorm,
retaining de jure elements of the 1961 Constitution while depending
on a de facto change, was also referred to.28 These formed the back-
ground to Beadle C.J.’s solution which was to base the Court’s
authority on the de facto government while not “joining the re-
volution”. This did not, of course, imply that everything the de
facto government did was lawful, for otherwise it would be de
jure.29 The Chief Justice concluded:
The present Government has effectively usurped all the governmental
powers under the old Grundnorm, but has not yet succeeded in setting
supra, note 1; cited by Beadle C.J., supra, note 14, 316-18.
25 The State v. Dosso, supra, note 1 and Uganda v. Commissioner of Prisons,
2 Supra, note 3, 117-19.
27Supra, note 14, 351; see Dias, Jurisprudence 2d ed. (1964), 381. Kelsen
would doubtless say that this would still ultimately (in interpretation) require
a Grundnorm. Beadle C.J. however, appeared to rely on the 1961 Constitution.
While it is possible to make sense of this when coupled with dependence on
a de facto regime, it is difficult to square in legal theory as Fieldsend A.J.A.
pointed out. See text, infra, p.78.
.28 Supra, note 14, 351 referring to Eekelaar, Splitting the Grundnorm (1967)
30 Mod.L.Rev. 156. See also, Finch, supra, note 24, 127, who states: “A split
in governmental allegiance in a country does not, for instance, connote a
split in the basic norm, any more than the inapplicability of the basic norm
to a disunited political system presents us with a case of juristic schizophre-
nial”29 Beadle C.I. pointed this out, supra, note 14, 351.
McGILL LAW JOURNAL
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up a new Grundnorm in its place. As a result of this effective usurpation,
it can do anything which the Government it usurped could have done, but
until the present Government has achieved the status of a de lure Govern-
ment, and the revolutionary Grundnorm becomes the new Grundnorm, it
must govern in terms of the old Grundnorm [and] until its new constitu-
tion is firmly established, and has thus become the de jure constitution
of the territory, its administrative and legislative acts must conform to
the 1961 Constitution. 30
Taking a more rigorously legal view, Fieldsend A.J.A. rejected
this “halfway house” solution, pointing out that the Smith regime
could not even be regarded as the de facto government because it
did not control the judiciary. Claiming that the Court still sat under
the 1961 Constitution, Fieldsend A.J.A. rejected the possibility of
even embarking on an enquiry into the existence of a constitu-
tion for “the court cannot sit to determine whether the constitution
under which it was created has disappeared …
. A court created
by a written constitution can have no independent existence apart
from the constitution …. 31 He concluded that the Court’s authority
could come only from the original Constitution, and if this was in
doubt then so must be the Court’s authority.3 2 However, in the
circumstances he was prepared to accept a limited doctrine of
necessity to avoid a legal vacuum in practice, providing that it did
not further the usurpation, was necessary for public order, and
retained the individual rights of the 1961 Constitution.13 This ap-
proach was rejected by Beadle C.J.
The Court upheld the validity of the Proclamations of Emergen-
cy3 4 as necessary for the maintenance of law and order. However, the
Judges unanimously held that the particular detentions under
30 Ibid., 351-52.
31Ibid., 429-30, criticising the Pakistan and Uganda cases, supra, note 1.
The Privy Council, [1969] 1 A.C. 645, 668, concurred. For FieldsendAJ.A., a
court is normally thought of as a guardian of its constitution.
32 Supra, note 14, 431. See also, Harris, When and Why Does the Grundnorm
Change? (1971) 29 C.L.J. 103, 127, who accepts the possibility of judicial de-
termination of its own power in individual cases and argues that it is thus
correct to extend this to the constitution. This does not follow, for the latter
effectively entails that judges can determine their own powers in all cases
at once, including the very determination by which they do so. Nevertheless,
it cannot be denied that judges can enquire into particular contents of their
constitutions.
3 3 Supra, note 14, 441.
-3 The original Proclamation of Emergency (5 Nov. 1965) was Proclamation
no.51 of Rhodesia, Government Notice, 1965, no.736. The O.A.G. under the
1965 Constitution issued Proclamation no.3 (3 Feb. 1966) in terms of which
the Government issued the Emergency Powers (Maintenance of Law and
Order) Regulations (Government Notice, 1966, no.71).
19781
GRUNDNORM AND CONSTITUTION
review were invalid, as the need for continuing the detention had
to be reassessed on each renewal by the Minister and such reassess-
ment had not occurred in this instance.35 The Smith regime regard-
ed this as something of a victory and proceeded to embark on a
new series of detentions within the Court’s criteria. These included
the detentions of Madzimbamuto and Baron.
The case was considered by the Privy Council which held unam-
biguously that the British Government retained sovereignty. It
rejected both the compromise solution of Beadle C.J. and the de
jurelde facto distinction, holding the latter to be inapplicable in an
internal situationm6 The doctrine of necessity was also rejected as
inappropriate for there was, in the opinion of the Board, no legal
vacuum since the power to make laws still lay with Her Majesty
in Council.31 The Privy Council appeared to accept the argument
by the Chief Justice of Pakistan,38 which purported to rely on
Kelsen’s authority to argue that the essential condition to determine
whether a constitution has been annulled is the efficacy of the
change. In this respect, it was held that it was impossible to say
that the British attempt to reassert sovereignty would fail. The
Board emphasized the difficulty of determining efficacy, as wit-
nessed by the different views of the Rhodesian judges3 9 Further-
more, it took that difference of opinion to indicate that the decision
lay with the Court and was not, therefore, to be decided by an
objective test.4
The case of R. v. Ndhlovu 4′ gave the Rhodesian Court an oppor-
tunity to reply to the Privy Council. Beadle C.J. criticized the
Privy Council’s approach as being unrealistic and legalistic.42 The
35 That is, on grounds independent of the constitutional position.
36Madzimbamuto v. Lardner-Burke, supra, note 31, 723. The Privy Council
felt that this pertained to international recognition which was a matter of
politics. They held that the continued sitting of the court was proof of British
sovereignty, ibid., 670, agreeing with Fieldsend AlA. (see text, supra, p.78).
37Lord Pearce, ibid., 731-45, in his dissent reached a position similar to
Fieldsend AJA.
38 The State v. Dosso, supra, note 1, 185.
39 Supra, note 31, 669.
40 Ibid., 669-71. They held that the regime was not de facto (agreeing with
Fieldsend AJ.A.) and implied that the Judges should continue under the 1961
Constitution or resign.
41 [1968] 4 SA. 515.
42Ibid., 517-23. This seems partly a reply to the Board’s criticism of his
political leanings, supra, note 31, 670, and to its failure to conduct an enquiry
into efficacy. The Privy Council is open to this latter charge because of its
use of the efficacy argument, ibid., 725.
McGILL LAW JOURNAL
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efficacy of the regime was then reconsidered and it was found
possible to “predict with certainty that sanctions will not succeed in
their objective of overthrowing the present Government ….
The
new Constitution was thus efficacious, and hence, valid. Citing the
Pakistan and Uganda cases, Beadle C.J. concluded that, by remaining
sitting, the Court therefore accepted this change.44
Whatever weight might be attached to considerations of efficacy,
this acceptance of the regime was not unexpected, coming, as it did,
in the wake of the decision in Dhlamini v. Carter.45 There the Rhode-
sian Appeal Court refused a delay to allow sufficient time to appeal
to the Privy Council, thus denying an entrenched clause of the 1961
Constitution on the grounds that a favourable decision would prove
ineffective. 46 Despite that decision, the accused were reprieved by
Royal Prerogative from their death sentences. This put to the test
the regime’s pretence of loyalty to the Queen and brought the courts
to a Rubicon, placing their loyalty into conflict with their dependence
on the regime and its executive. No compromise was possible, and
the Court held that the prerogative of mercy now lay with the
regime.47 Any idea of retaining whole or part of the 1961 Constitu-
tion was no longer possible. Fieldsend A.J.A. and Young J. resigned.
The majority of the judiciary remained, in effect joining the re-
volution. The three Africans reprieved by the Queen were executed
on March 6, 1968.
It is clear from these decisions that the Court, and the Chief
Justice in particular, formed much of their deliberation in terms
of the Pure Theory and especially its concept of Grundnorm and the
relation of efficacy to validity. Indeed, the dependence of the chan-
ge of Grundnorm on efficacy was made the crucial test in determin-
ing the Court’s attitude toward the Smith regime and in resolving
the status of the new Constitution. While there can be little doubt of
the relevance of the Pure Theory to these events, what may be
doubted is the propriety of the role in which it was cast.
II
Speaking generally of the causes of misconceptions of Kelsen’s
theory, Finch rightly asserts that “they are largely attributable to
. In
a confusion of the two senses of the word constitution…
43 Supra, note 41, 532, the use of force being ruled out.
44Ibid., 522. A republican Constitution followed on 1 March 1970.
45 [1968] 2 S.A. 445, 464.
40 Ibid., 466.
4TIbid., 469.
19781
GRUNDNORM AND CONSTITUTION
particular, the constitution in the positive legal sense has been taken
for the basic norm, which it is not”.4 8 It is submittted here that the
Rhodesian case is a classic example of such confusion. Although the
Court misinterpreted Kelsen’s work at other points, as several
writers have indicated 49 these misinterpretations all arise from the
deeper confusion of Grundnorm with constitution indicated by Finch
and are explicable only in terms of it. Grundnorm and constitution
were generally treated as synonymous in the Rhodesian case, as they
were in the cases of Pakistan and Uganda. This enabled the Court
to treat Kelsen’s remarks on the legal science concept of Grundnorm
as being directly applicable to the status of the Constitution.
Evidence of this confusion becomes apparent from an examina-
tion of the language of the Judges and from a tracing of the source
of some of the Court’s other misinterpretations. Beadle C.J., who
gave the authoritative formulation adopted by the Court in Mad-
zimbamuto v. Lardner-Burke,50 consistently used the terms Grund-
norm and constitution synonymously and, in one place, Grundnorm
is equated with another concept called the “fundamental law”:
It may be accepted that a successful revolution which succeeds in replacing
the old Grundnorm (“or fundamental law”) with a new one establishes the
revolutionaries as a new lawful government.5 ‘
They were satisfied that the revolution had succeeded and the “fundamen-
tal law” had changed and had been replaced by the new constitution.52
There are many examples in history of a country’s economy being reduced
to dire straits without this causing … an uncoistitutional change in the
Grundnorm.53
The present Government has effectively usurped all the governmental
powers under the old Grundnorm, but has not yet succeeded in setting up
a new Grundnorm in its place …. To sum up here, therefore, I consider
that the present Government, having usurped effectively the governmental
powers under the 1961 Constitution, can now lawfully do anything which
its predecessor could lawfully have done, but until its new constitution is
firmly established … its administrative and legislative acts must conform
to the 1961 Constitution.64
48 Finch, supra, note 24, 126-27. This also contains a careful analysis of the
relation of the two concepts and of the use of the concept of Grundnorm in
general. Probably the clearest exposition provided by Kelsen is that given
in his reply to Stone, supra, note 3.
49 See Eekelaar, supra, note 28, 171 and infra, note 65, 22; de Smith, infra,
note 76, 106.
50 Supra, note 14.
51Ibid., 315 (emphasis added).
52 Ibid., 327 (emphasis added).
53Ibid., 323 (emphasis added).
54Ibid., 351-52 (emphasis added). The expression “setting up a Grundnorm”
is the most obvious betrayal of the confusion because while it is clear how a
McGILL LAW JOURNAL
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The situation in the Pure Theory is radically different; Grund-
norm and constitution are sharply distinguished. The Grundnorm
is the reason for the validity of the constitution as seen by legal
science and merely marks the fact that a constitution is accepted
by the legal system. It is not the constitution itself. It says that
“[o]ne ought to obey the prescriptions of the historically first cons-
titution”,55 and the prescriptions of a constitution, or any other
positive law, are based on certain accepted norms indicating what
the rule ought to be. But the Grundnorm lies outside of these laws
and their norms; it is a presupposition of them made for the in-
terests of legal science. If it were otherwise, that is, if the Grund-
norm were merely another positive law, it would always be possible
to ask why that prescription in turn was itself valid. But, as we
noted earlier, the Grundnorm’s validity cannot be objectively tested;
it must be presupposed or assumed. The Grundnorm is thus at the
top of the hierarchy of norms which inspire the prescriptive elem-
ents of the positive laws of a legal system.
It is the Grundnorm which makes it possible for the lower
norms and the constitution to derive validity from other norms
rather than from facts. According to Kelsen 01 and much of recent
ethics, a norm (or value) is never entailed by any set of facts, for
example, the process of norm creation or the personality of the
person creating it. The validity of a lower norm is derived from a
higher one. It may seem that validity really derives from a court’s
decision or from the legislative process, but these in turn rely on
norms which grant such powers. The system is, in Kelsen’s words,
“dynamic”; rather than merely dictating specific norms, it provides
powers of norm creation, and the courts and the legislature exercise
those powers.
Ultimately, the system derives from the norms of the constitu-
tion, but when those are questioned their validity can only be
established by means of the Grundnorm. Since no facts can give
validity, yet the hierarchy of norms must stop somewhere, the
system rests on a presupposed validity. Indeed, legal science defines
the system as comprising those norms which derive their validity
from the single common source, the Grundnorm. In Kelsen’s words,
government may “set up” a constitution, it is far from clear how it should
“set up” a concept of analytical jurisprudence. If it is strange to find the
courts acting as legal scientists, then it must be stranger still to find a
government doing so as well!
55 Kelsen, Pure Theory of Law, supra, note 3, 204.
56 Ibid.
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GRUNDNORM AND CONSTITUTION
by means of the Grundnorm “the subjective meaning of the acts
performed in accordance with the constitution, are interpreted as
their objective meaning, as valid norms. . .. 57 By this, Kelsen
means that it is only by analysing norms that the laws which con-
tain them can be understood and that one can distinguish between a
demand, such as a gangster may make, and a prescription, which
we see as the outcome of a valid legal system.
It is important to note that, even though it is presupposed, the
Grundnorm has no independent status; it always refers to a specific
constitution. However, its role is clearly not to determine the con-
tents of that constitution. As well, it must be emphasized that the
Grundnorm is not prescribed by the Pure Theory.58 To prescribe
would be to make laws, and the Pure Theory could not create a
law on its own account; only those authorized to do so by the legal
system can do that. Thus, the Pure Theory is concerned only with
intellectual coherence in legal analysis. It is true that Kelsen does
refer to the Grundnorm as the “constitution in the legal-logical
sense” as opposed to the “constitution in the positive legal sense”,59
but these radically different concepts are never confused by him.
This distinction is so basic, moreover, that it is difficult to imagine
a more fundamental misinterpretation. Reasserting this distinction
against Stone’s attempt to merge the two concepts, Kelsen testily
remarked: “This interpretation is without any foundation in my
writings.”‘ 10
The Rhodesian Court of Appeal was also guilty of this funda-
mental error. It persistently treated as prescriptive a theory that is
entirely descriptive. In other words, the judges saw the Grundnorm
itself as granting validity rather than as being a reflection of the
Courts’ granting validity. They equated the validity presupposed of
a constitution because of the Grundnorm with the validity bestowed
57 Ibid.
58 Except in the limited sense that the Grundnorm is stipulated by Kelsen
for use in interpretation by legal science, it is never prescribed to law. Kelsen
is here maintaining a distinction between cognition (understanding) and
volition (willing). All science, including legal science, is concerned with
cognition, even if its’ subject matter is actually created by “acts of will”,
in the case of legal science, by the prescription of norms. This distinction
derives from Kant, where it is expressed as the distinction between pure and
practical reason. This is correlated to the fact-value distinction, facts and
values being the outcome of cognition and volition respectively. This is
so even in legal science where a system’s value (a norm) is a fact from the
point of the legal scientist.
59 Professor Stone and the Pure Theory of Law, supra, note 3, 1141.
6o Ibid.
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on a constitution by its acceptance by the Court, never realizing
that, whichever constitution is accepted, legal science automatically
assumes there is a Grundnorm. In this way, they disguised the
overtly political nature of their actions. Their political decision to
bestow validity was seen as inevitable as a result of being presented
in the guise of jurisprudential interpretation. The logical necessity
of the Pure Theory was enlisted in support of political necessity.
As a result, the Court concluded that its decision had to reflect the
change they believed had occurred in the Grundnorm. The clearest
demonstration of this is the way they posed the problem; they
asked whether the government had successfully “set up a Grund-
norm”.
6 1
By such means the Rhodesian judiciary converted what, accord-
ing to Kelsen, is a purely cognitive concept into an impossible pres-
cription. Moreover, by their confusion of Grundnorm and constitu-
tion the Judges were able to present themselves as impartial scien-
tists whose role it was to predict efficacy. Such an activity, of
course, is utterly alien to the Pure Theory, for how can a concept
whose purpose is to describe the post-decision situation take part
in making that very same decision. 2 Such a decision can only be
an act of norm creation and not a presupposition of legal science,
and acts of norm creation, Kelsen explains, may quite reasonably
be politically inspired, constrained only by the need to found the
validity of the norm thus created on a higher norm.0 However,
when the norm to be created is the constitution itself, the highest
positive norm (given that the Grundnorm is formal and in no way
affects its contents), then it follows logically that the requirement
of a higher norm is absent and the decision is entirely political. 4
The pretension of impartiality and objectivity falls. Such a chain
of events was never specifically rejected by Kelsen for the simple
reason that it was never envisaged by him.
The Court, having already confused Grundnorm with constitu-
tion, assumed that Kelsen’s remarks on the relation of efficacy to
the concept of Grundnorm were equally applicable to the 1965 Cons-
titution. This launched them on a new misinterpretation. According
to the Pure Theory the relationship of efficacy to validity is always
01 Supra, note 14, 351.
2 A descriptive theory can only be interpreted as prescriptive if its des-
6
cription is treated as being of a future state of affairs, which it is then held
as implicitly prescribing to the present.
63See, e.g., Kelsen, Science and Politics (1951) 45 Am.Pol.Sci.Rev. 641, 654.
64 Ibid.
1978]
GRUNDNORM AND CONSTITUTION
a conditional one. Efficacy, coupled with an act of norm creation,
is a prerequisite to the existence of that norm. If a norm was never
obeyed, it would cease to be a norm as far as legal science is con-
cerned, although its corresponding law might remain on the statute
book. On the other hand, we have seen that a norm’s validity can
only be based on another norm, and ultimately on the Grundnorm
itself. There is, therefore, a difference between asking whether a
norm exists and asking whether it ought to be obeyed as valid.
This follows from Kelsen’s rigorous positivist distinction between
facts (is) and norms (ought), for, as seen above, no fact can make
a norm valid.
Notwithstanding that the conditional nature of the relation was
pointed out in an article by Eekelaa 0 which was cited by the
Court, 0 the Judges saw efficacy as automatically conferring validity.
Because of their confusion of Grundnorm and constitution, the
Court obliterated the distinction between descriptive theory and
prescriptive decisions and treated as a necessary consequence a
merely conditional relation. It is hardly surprising that they should
have adopted this interpretation, despite Eekelaar’s caveat, given the
deeper source of their misunderstanding. Eekelaar’s point has been
criticised by J.W. Harris 67 on the grounds that it wrongly assumes
that, to confer validity, Kelsen requires something more than a
65 Supra, note 28, 161. See also Eekelaar, Rhodesia: the Abdication of Consti-
tutionalism (1969) 32 Mod.L.Rev. 19,’22-23. According to Kelsen, efficacy is
a necessary condition for a norm to be said to exist. Only then, if the existence
of a norm is established, can its validity be determined solely by its derivation
from other norms. The Court took the relation as being “conditional” in the
sense that efficacy was an immediate, necessary and sufficient condition for
validity, thus neglecting Kelsen’s insistence on the distinction between fact
and value. This perversion of Kelsen’s theory followed readily from the
merger of the constitution in the positive legal sense with the Grundnorm.
66 Supra, note 14, 351.
67 Supra, note 32, 116. In the space available it is not possible to deal with
Harris’s arguments which are based on distinctions made between various
types of validity. It is argued here that these are rendered irrelevant by an
appreciation of the central confusion made by the Courts. Harris thus
maintains that judges can be both judges and legal scientists at the same
time, a view seen here as profoundly mistaken and not in any way in accord
with the Pure Theory. Even were this granted, it is submitted that Harris
is misled by distinguishing between validity, as derived from higher norms,
and non-conflict between norms, and by greatly over-emphasising the role
of the latter in Kelsen. While it is true that this logical version of validity
plays a role in Kelsen’s work, it is progressively diminished and rejected in
the 1965 essay, Law and Logic, reprinted in Kelsen, Essays in Legal and Moral
Philosophy (1973) Weinberger (ed.), 228.
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decision to interpret the system of laws as a logically consistent
field of meaning, “a decision which entails no value commitment”.,8
From the above discussion it is clear that, while this may be true
for a legal scientist interpreting a legal system, it has absolutely
no import for the quite different position of a judge deciding
whether or not to accept a regime’s constitution as the basis of the
law.69
Doubts may remain that, even correctly understood, the Pure
Theory might have some indirect persuasive authority in support
of the Rhodesian Appeal Court’s decisions.70 However, this would be
a basic misunderstanding of the strict limits that the Pure Theory
sets itself. It could not attempt to usurp the decision-making role of
a judge because it is not part of the legal system. As Kelsen puts it,
“In]ever, not even in the earliest formulation of the Pure Theory
of Law did I express the foolish opinion that the propositions of
the Pure Theory of Law ‘bind’ the Judge in the way in which legal
norms bind him”.7
‘ This, once again, points out the differing roles
of legal scientist and judge in Kelsen’s view.
Another line of attack on the Pure Theory has centered on how
imprecise Kelsen’s criteria of efficacy are. Kelsen’s formulation is
that, “[a] legal order is regarded as valid, if its norms are by and
large effective (that is, actually applied and obeyed) “.72 This appears
to leave open a wide area of judicial politics. As Dias states, “[tihe
truth of the matter is that effectiveness is only what the judges
choose to regard as such; which places considerable power in their
hands”. 3 This seems abundantly borne out by the type of evidence
that the Rhodesian Judges considered in deciding efficacy (the state
of the Rhodesian building trade!74 ) and by the disagreement
amongst the Judges as to the degree of efficacy required. One
cannot escape the conclusion that this discussion became a “cloak
for personal decision”. 75 However, this should not be interpreted as
608 Harris, supra, note 32, 116 and cf. 123.
69 This reasserts the distinction cogently argued by Brookfield, The Courts,
Kelsen, and the Rhodesian Revolution (1969) 19 U.of T.L.J. 326, 342.44. It is
here implied that Harris is wrong in rejecting Brookfield’s argument, and that
this logical distinction has tremendous political import.
70 Cf. Harris, supra, note 32, 125.
71 Supra, note 3, 1134, in reply to Stone, Legal System and Lawyers’ Reason-
ings (1964), 102-103.
72Pure Theory of Law, supra, note 3, 212.
73Supra, note 13, 254.
74 Supra, note 14, 418.
75Dias, supra, note 13, 254.
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GRUNDNORM AND CONSTITUTION
a weakness in the Pure Theory; it was never intended to be applied
by judges at all. It is simply a methodological device of legal science,
yet it was seen to be in some sense binding on the Court. Such a
formulation as Kelsen provides can afford to be loose because it
was not designed to serve as a crucial test in a situation where the
constitution is in doubt.76 The Court’s real mistake was not so much
in misinterpreting the Pure Theory of Law as in applying it at all.
The legal scientist only begins his work once the courts have re-
solved these problems in their own terms.
Honor6, too, was critical of the Rhodesian judgments 7 He points
out the circularity in the position of Judges whose acceptance of
validity is part of the very efficacy on which they rely in deciding
whether to accept that validity. Once the courts decide that a
constitution is valid, they apply it and the laws coming under it;
this represents part of that constitution’s efficacy. So how can
efficacy, which theoretically follows from validity, be used as a
test of validity? Such a use poses a classic “chicken and egg”
dilemma. This is evident from the Pure Theory, where acceptance of
norms by organs of the legal system as well as by the general
populace is relevant to efficacy. As Dias asserts;
One cannot help remarking that it is the judges who, by these decisions,
kept cementing effectiveness layer by layer until it reached a point at
which they could look back on their own handiwork and treat it as
an objective fact.78
This state of affairs only arose because the Judges merged their role
with that of legal scientists,7 9 and it could not arise in the Pure
Theory properly understood. There the legal scientist is not in a
position to help to create efficacy; he can only commence his work
once it has been established.
It is interesting to note the efforts of the majority Judges to
maintain an appearance of intellectual and emotional passivity in
their judgments. 79a Honor6, despite his own arguments casting
referred to by the Privy Council, supra, note 31, 669.
76As de Smith, Constitutional Lawyers in Revolutionary Situations (1968)
7 Western Ont.L.Rev. 93, 106, points out, Kelsen’s model is of a straight-
forward coup d’gtat.
77Honor6, Reflections on Revolutions (1967) 2 Iriur. (n.s) 268, 272. Also
‘7sSupra, note 13, 253.
79 Cf. Harris, supra, note 32, 123.
79a See Harris, ibid., 122-23. Beadle C.T., supra, note 14, 326 and Jarvis A.IA.,
ibid., 418, claimed that the decision would make very little difference to the
regime; it being already the de facto government. Qu6net J.P., ibid., 369, and
Macdonald J.A., ibid., 415, claimed that it would make no difference at all
because the revolution had succeeded in all respects. FieldsendA.J.A., ibid.,
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doubt on the Court’s use of the Pure Theory, sees this as an out-
come of “Kelsen’s political quietism”, 0 However, the “quietist”
attitude the Court professed bears little relation to what, in fact,
they were doing, which was of a highly political nature, as seen
indeed by Honor6’s own argument. Kelsen’s theory is politically
quietist because it is a science of law and strives to be non-
ideological; it was never intended to be an ideology of passivity to
be adopted by courts. That the Rhodesian Judges used it as such
can only be attributed to their deeper-lying confusion.
It has been emphasized above that the Judges’ migrepresentation
of the Pure Theory allowed them to present their decision as the
unavoidable outcome of legal realities. Some idea of the conse-
quences of such reasoning can be seen in Beadle C.J.’s remarks in
the Constitutional Case:
That law cannot vary with the political views of the individual Judge
who “declares” it.81
The question of whether or not at that time the “fundamental law” had
changed was a question to which only one correct answer could in the
circumstances be given, and this did not in any way depend on the political
views of the Chief Justice.82
[I]n a revolutionary situation the political views of the Judge do not play
any more significant a part in determining what the law is than they do in
normal times.83
And in R. v. Ndhlovu, having accepted the Smith regime as valid,
he rejected the view that,
… a Judge, by carrying on with his humane task of preserving the law
and order and avoiding chaos is either joining or at least aiding or approv-
ing of the revolution. This is not so. The Judge is simply forced into a
position of accepting the facts and the laws as they are, whether he likes
them or not. He has, as I have said before, simply been overtaken by
events.84
Beadle C.J. then drew an analogy between a murder and the demise
of the 1961 Constitution, claiming that they were both unalterable
430 and 432, however, held that the Court’s position was of sufficient signi-
ficance to render the revolution inefficacious while the courts remained in-
dependent. (Hence for FieldsendA.J.A. a favourable decision would at least
be a conferment of efficacy). From this it is apparent that the more inclined
the Judges were to recognize
the
significance of this in maintaining an appearance of passivity.
they reduced
the regime,
the more
8oSupra, note 77, 272.
8sSupra, note 14, 327.
82 Ibid.
83 Ibid., 328.
84 Supra, note 41, 533. See also, supra, note 54.
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GRUNDNORM AND CONSTITUTION
facts, the establishment of which did not entail judicial approval
in either case. Declaring the 1961 Constitution invalid he added:
The Judges, by taking cognisance of the fact that this is so, cannot justly
be accused of being in any way responsible for the change, nor can it be
implied that by accepting the fact of the change they approved of it.
The change is not a matter of their making.85
We have seen that by Kelsen’s Pure Theory of Law, Beadle C.J.’s
own choice of rules, this reasoning is patently incorrect.
Where Beadle C.J. did speak of a personal choice this was in
terms of a decision to carry on after the “fact” had been establish-
ed.86 But, as de Smith says:
For all practical purposes a legal system or a constitution is valid when
the judges have unambiguously accepted it as valid.
… 1 To this extent
the constitution is what the judges say it is.87
Somewhat in tension with his repeated apolitical professions, the
Chief Justice also stressed the need to accord with political realities,
which provoked the Privy Council to remark:
Beadle C.J. frequently invokes “political realities”. It is difficult to avoid
saying that in so doing he departs from the terms of his judicial oath
since he appears to prefer “political realities” to the law.8 8
It should now be clear that the “politics” of the court are in no
way derived from the Pure Theory of Law. This answers the charge
made against Kelsen by Dias, who sees the case as an illustration
of the practical evils of positivism, with its divorce of morals and
law, and as proof of the need to make the Grundnorm a moral
phenomenon by introducing a natural law element.” His argument
seems to gain strength when one considers Beadle C.J.’s statement:
My approach to the position of the Judges and of the High Court and,
indeed, to these cases as a whole, is a “positivist” approach; because I
think that in the situation which exists in Rhodesia to-day what “is” or
what “is not” the law can only be decided on the basis of accepting things
as they actually “are”, and not simply as they “ought to be”.90
As Dias points out, it is clear that the Judge’s decision was primarily
a personal one, but the issue here is whether Kelsen’s positivism
supports thisY’ From the foregoing discussion it should be obvious
that it does not.
85Supra, note 41, 533.
86 Supra, note 14, 327.
87Supra, note 76, 104.
88 Supra, note 31, 670. Compare Beadle CJ., supra, note 14, 327.
89 Dias, supra, note 13, 255-56.
90 Supra, note 14, 326, and quoted by Dias, supra, note 13, 256. Once again
O9 Supra, note 13, 256.
Beadle C.J. merges the roles of legal scientist and judge.
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Dias contends that the main issue should be whether (morally)
to accept a Grundnorm which perpetuates inequalities, something
he sees a positivist theory neglecting 22 However, it should now be
clear that this has nothing to do with a legal science approach. It is
the constitution that may perpetuate inequalities and be morally
repugnant, not the Grundnorm. In this respect it must be remember-
ed that Kelsen’s theory is entitled, and for good reason, the “Pure
Theory of Law”, not the “Theory of Pure Law”. It would be highly
misleading to build a moral bias into the Theory and the Grund-
norm, no matter how congenial this might be. On the other hand,
there is no reason why the constitution should not have a moral
bias. Moreover, although the Pure Theory makes no evaluation
itself, this in no way rules out moral evaluation of constitutions. 3
The Rhodesian decisions cannot be taken as a warning of the evils
of the Pure Theory’s positivism, for the Judges, despite their state-
ments to the contrary, did not and could not act as Pure Theorists.
Conclusion
The above discussion demonstrates that the Rhodesian decisions
are what de Smith has called “fundamentally political judgments
dressed in legalistic garb”. 94 It was therefore not surprising to see
them emanating from members of the ruling European elite of
Rhodesia 5 Nevertheless, this conclusion must be tempered by the
fact that the Privy Council also committed the same basic con-
fusion, that is, of Grundnorm and constitution. 0 This serves as a
clear warning against using a complex and demanding theory like
92 Ibid.
93 For a defence of positivism against this type of charge, see Hart,
Positivism and the Separation of Law and Morals (1958) 71 Harv.L.Rev. 593.
94 Supra, note 76, 94.
95 See de Smith, ibid., 108. For the political backgrounds of the Judges see
Palley, The Judicial Process: U.D.L and the Southern Rhodesian Judiciary
(1967) 30 Mod.L.Rev. 263. The fact that Young J. was once a leader of an
anti-African party, yet resigned from the Court on legal grounds, should
caution against seeing all the judiciary as merely motivated by personal
politics.
96 Supra, note 31, 725. Having asserted sovereignty, the Privy Council had no
need to consider the efficacy argument. Munir C.J.’s discussion was referred
to (supra, note 1, 185) but was held inapplicable as there were two rivals
contending for power in the Rhodesia case but no rival in that of Pakistan
or Uganda. Nevertheless, the Privy Council did appear to follow Beadle C.J. in
regarding the efficacy of the regime (determined by the possibility of the
British Government regaining control) as relevant. Although
the Board
concluded on these grounds that the Smith regime was illegal, this argument
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GRUNDNORM AND CONSTITUTION
Kelsen’s without great caution, all the more so since Kelsen’s work
is so rarely considered by Commonwealth courts, and then only as
a last resort when other authorities are found wanting.9 7 It is in
just such circumstances that one can be easily, albeit innocently,
misled, for then the Rhodesian Court’s decision may seem, after
all, to be a perfectly natural outcome. As Wittgenstein remarked
in a different context, “[t]he decisive movement in the conjuring
trick has been made, and it was the very one we thought quite
innocent”9 8
was superfluous. Moreover, Beadle CJ. took the Privy Council’s discussion
as supporting his own emphasis on the efficacy argument. Despite this, the
Board made it clear that it rejected the idea that Kelsen or any other writer
of jurisprudence could serve as an authority in the way the Rhodesian Court
intended, supra, note 31, 668.
9 7 See de Smith, supra, note 76, 93.
98 Philosophical Investigations (1968), 103e, para.308.
