The field of Legal theory can be mystifying. The view that it is esoteric is widely held and even, some initiated minds regard itas tedious and painfully out of step with reality. Yet, such a view is not only simplistic; it is untrue. In this series of blog posts, titled “Pies in the Sky: Manna for Jurisprudes” I examine some cases in which some of these theories came to life in some rather mundane affairs of daily life. I challenge the view that legal theories are pies in the sky and show that, on the contrary, there is a wide interface between legal theory and ordinary life.
Legal theory/philosophy or jurisprudence is the sustained thinking about questions of law. It comprises attempts to justify existing notions of law or a bid to replace existing notions with more justifiable concepts. Its primary focus has been helping to find clarity on what law is, in addition to its relationship with the individual, society, morality, politics etc. Questions like: what is law? What ought to be law? What considerations should go into the making, enforcement and adjudication of law, have animated the discipline of jurisprudence. With the tools of legal philosophy, we can trace the path of the law, draw lessons from the past, shape the present and take a shot at meeting our aspirations for the future. Rightly so, it is often the case that the justness of laws and legal institutions cannot be intelligently commented on without resort to legal theory. Few disciplines of knowledge can be so far reaching, yet so obscure in ordinary life as legal theory.
In this series I will look into some of the cannons of legal theory and by relating them to real cases demonstrate how legal theory serves as a toolkit that enables and disables, guides and restrains; the wielding of power, the exercise of rights and the resolution of disputes. I argue that, wittingly or unwittingly,every proposition as to the justness of laws and institutions or the scope of rights of individuals or the powers and responsibilities of the state are invariably rooted in legal theory and are amplified or rendered impotent by it. legal theory can bite when we least expect it, it can follow us even when we run from it and most importantly, with it, we can stop, take stock of human behavior and remake society to reflect our “better angels”.
Part one will feature Kelsen’s concept of the grundnorm. In part two, Priscilla Vitoh joins me in a discussion on the antipathy towards legal theory in spite of its ‘brooding omnipresence’ and how those who intend to run from it can only go so far. In part three I examine a rather popular notion that “the law as it is, isdifferent from the law as it ought to be” with historical lessons from the German Third Reich. In the final part I focus on legal theory and gender issues and draw some general conclusions.
The Grundnorm and a failed marriage
Kelsen and the Grundnorm
Marriage and other such romantic relations would normally be deemed as very personal and intimate affairs between two people. Many people will reckon that whether or not a woman will marry a man will depend on things such as love, consanguinity, and other biological and social compatibility requirements that may apply. In this scheme, the views of a legal theorist will hardly feature in the decision on contracting such a marriage. But, beyond the issues of love and compatibility,marriage is also a legal fact and to that extent, a legal theorist ‘far far away’ can actually answer the question; “is there anyone who has a reason as to why this two people should not bemarried?” by saying, in not so many words, “yes I do”.
Hans Kelsen’s grundnorm or basic norm is an intelligent attempt at answering the question, what is law? Practically, it is the difference between a valid order by, say, an official of the Ghana Revenue Authority (GRA) to a citizen of Ghana and commands of an organization that has no legal standing in Ghana, say, the Federal Bureau of Investigation (FBI) in the USA. A Ghanaian recognizes legal commands of a GRA official because his authority comes from the Ghana Revenue Act, Act 791, and the Ghana Revenue Act can give the official that authority because parliament passed it, and parliament can pass such a law because the constitution allows parliament to do so and the constitution can allow parliament to do so because it is the fundamental lawof the land. Kelsen views these layers of rules conferring validity on one another in turns, like an inverted pyramid with the grundnorm at the base. In this concept, every law that is rooted in these layers of rules are valid and anything outside is not. So for our earlier example, a command by a GRA official to pay taxes is valid and an order of arrest by the FBI is invalid in Ghana.
Important aspects of Kelsen’s theory are the ideas of norms, efficacy and validity. Since the basic norm of a legal order is the ultimate rule according to which the norms of the order are established, annulled, receive and lose their validity, all norms that trace their validity from the same basic norm form a single legal order. Thus, every norm is valid to the extent that it is a part of a whole system of norms that is valid. Whereas, the validity of a system of norms depends on whether or not it is on the whole efficacious—whether people actually behave in accordance with the norms within it and whether sanctions are effectively carried out. We can think of norms as the legal demands of the people in the legal system, to vote, to comply with orders of the police, to pay taxes etc.
The grundnorm remains valid and so does every rule or norm that emanates from it if all changes in rules are made in a way which the legal order itself prescribes. This principle does not hold in a revolution. Where there is a revolution—where the order in force is upturned in a way which the order itself did not anticipate, the grundnorm is altered and in effect all laws lose their validity until a new grundnorm is established and new laws are made or continued in existence. At that point, a new grundnorm is required as the basic law of the land. Within this framework, a command by the FBI to a Ghanaian in Ghana lacks validity because it is not rooted in this pyramid of rules that leads to the grundnorm unlike the revenue authority.
Yes I do
What does the grundnorm have to do with a failing marriage? We find out in Adams v Adams  P.188. The facts were as follows: a wife sought divorce from an estranged husband in Southern Rhodesia. The couple married in 1965 in Salisbury, England. They moved to Southern Rhodesia whereupon the wife acquired a domicile of choice. The marriage did not work out and when in 1968 the wife returned to England on holidays, she received a letter from the husband informing her that he had “found somebody else” and “did not want to go on with the marriage.” Attempts by the wife to save the marriage failed and she successfully filed for a divorce decree by the court in Southern Rhodesia. In an attempt to remarry, it was discovered that she cannot legally remarry in England because the divorce decree given by the court in Rhodesia had no validity in England. The case exemplifies how legal theory can bring complexity to seemingly very private affairs such as love and marriage. The simple reason why she could not marry again was that there had been a Unilateral Declaration of Independence (UDI) in Rhodesia which purported to abrogate British colonial control in Rhodesia. It purported to replace the 1961 colonial constitution with an independence constitution in 1965. This attempt was largely unsuccessful because Mr. Ian Smith did not have total control of the territory, what Kelsen describes as efficacy. As a result, regime established under the 1965 constitution did not have international recognition for the most part. England in particular only recognized the 1961 constitution established by them. The judge who granted the divorce, Macaulay J, was appointed in accordance with the 1965 constitution.
The pies fall
The court adopted a Kelsenite frame of analysis in deciding the case. A crucial question for the court was, where does the court that issued the divorce decree get its authority from? Keep in mind, according to Kelsen, for a legal norm (rules and actions) to be valid, it must be part of a body of norms that is on the whole valid. Whereas validity depends on efficacy—whether the author of the new grundnorm has successfully brought the legal system under his control. The contention of the court was that the leader of the revolution, Mr. Ian Smith, could not bring the entire territory of Rhodesia under his effective control (efficacy) and to that extent the all the norms (rules which includes offices such as the judges) that Smith tried to establish under the 1965 Constitution were not valid. The Adams’ divorce decree fell in this category of invalid acts. Simply put, Macaulay J, had no place within the efficacious legal order and his acts are incurably invalid. The judge in the English Court of Probate and Admiralty Sir Jocelyn Simon P said “It would be a constitutional anomaly for our courts to recognise the validity of the acts of Macaulay J. as a de facto judge while the executive acts of those appointing him (which must include his very appointment) are refused recognition de facto by the executive here”.
Sir Jocelyn Simon also pointed out that six other divorce and remarriage cases had suffered the same fate. These people set out to end marriages that was no longer working for them and sought to forge forward with their new flames. Grundnorm, Kelsen and norms were nowhere in their contemplation. Yet, they had fallen squarely in the tenets of it and could not progress in that regard. Legal theory, whether we like it or not, shapes how law is made, interpreted and enforced. It is a silent prologue to the study of the law, some texts describe it as having a ‘brooding omnipresence’ in any question of law. As most of its proponents harness their theories from the happenings of society, it forms part of the fabric of society; invisible yet very present.