Legal Definitions - basic norm

The term basic norm, often associated with the legal philosopher Hans Kelsen, refers to a fundamental, presupposed rule or principle that gives validity to all other norms within a legal system. It is not a norm created by any legal act or authority, but rather a hypothetical, foundational assumption that allows us to understand the entire legal order as a coherent and binding system. Essentially, it's the ultimate, unchallengeable premise upon which the legitimacy of all laws, constitutions, and legal decisions rests.

Here are some examples to illustrate this concept:

• Establishing a New Nation: Imagine a country that has just achieved independence through a revolution and is drafting its very first constitution. This new constitution lays down the framework for all future laws, government structures, and individual rights. The question arises: what makes this *first* constitution valid? It wasn't created by a pre-existing legal authority, as there was none recognized by the revolutionaries. The basic norm in this scenario is the presupposition that this revolutionary act of establishing a new constitution is legitimate and that its provisions are binding. Without this underlying, unstated assumption, the entire new legal system would lack a foundational source of authority.

• International Law: Consider the system of international law, where treaties between sovereign states are considered binding. Why do nations generally adhere to treaties they sign? There isn't a global legislature or police force to enforce every single agreement in the same way domestic laws are enforced. The basic norm underlying international law could be understood as the principle of pacta sunt servanda (agreements must be kept). This is a fundamental, unwritten assumption that states accept as the basis for their interactions, allowing the entire complex web of international agreements and customs to be seen as a valid and obligatory legal order.

• Constitutional Amendment Processes: In many established democracies, there are specific, often complex, procedures for amending the constitution. For example, an amendment might require a supermajority vote in the legislature and ratification by a certain number of states or provinces. When an amendment is passed according to these rules, it becomes part of the supreme law of the land. The basic norm here is the presupposition that the original constitution, and the specific amendment procedures it outlines, are valid and must be followed. It's the ultimate, unquestioned assumption that the established constitutional framework itself is the legitimate source of legal authority, making any changes made according to its rules equally legitimate.