Hans Kelsen's Concept of the Hierarchy of Legal Norms
Theoretically, the concept of the hierarchy of legal norms, first proposed by Merkl, has become popular through Hans Kelsen's idea in the Hierarchical Theory of Law (Stufenbau des Rechts). Kelsen stated that lower norms are produced by higher norms, creating a tiered and hierarchical legal structure.
That is, each lower norm is enacted and originates from a higher norm. The higher norm, in turn, is rooted in an even higher norm. This process continues until it reaches the basic norm (Grundnorm), which is a hypothetical and fictitious norm that cannot be traced further.
What is Grundnorm?
Grundnorm is a legal principle that is abstract, general, and serves as the basic assumption for all formal sources of law. In the analogy of the legal pyramid, Grundnorm is at the top of the pyramid as the highest norm.
Kelsen considers Grundnorm as meta juristic, which is a norm outside the legal system or algemene verbindende voorschrifften (not included in legislation). Grundnorm is the source of sources in the order of regulations below it.
The concept of Die Stufenordnung der Rechtsnormen Hans Nawiasky
This theory was further developed by Hans Nawiasky, a student of Kelsen, in the concept of Die Stufenordnung der RechtsnormenNawiasky links this hierarchy to the structure of the state. His concept is similar to Kelsen's, in that legal norms in a state are structured hierarchically and tiered. Each higher norm serves as the basis and source for the lower norm, and so on, until it reaches the highest Basic Norm.
Hierarchy of Norms According to Hans Nawiasky
According to Nawiasky's concept, legal norms in a state are not only hierarchical but also divided into specific groups. This classification consists of four parts that can be explained as follows:
- Staatsfundamentalnorm;
- Staatsgrundgesetz;
- Formel Gesetz; and
- Verordnung & Autonome Satzung.
In the context of the pyramid of legal norms, Nawiasky places the Staatsfundamentalnorm at its peak, which Hamid S. Attamimi translates as the Fundamental Norm of the State. This norm is the highest norm in a state that does not originate from a higher norm.
For Nawiasky, the staatsfundamentalnorm is a norm that is considered to have pre-existed by the society of a state and forms the foundation for the legal norms below it. It is also the basis for the formation of a state's constitution and is a requirement for the constitution to be valid, as this norm existed before the constitution was formed.
Similarities and Differences in the Viewpoints of Legal Norm Concepts Between Hans Kelsen and Hans Nawiasky
Nevertheless, there is a similarity between the thoughts of Kelsen and Nawiasky. Both acknowledge that legal norms are hierarchical and originate from higher norms, reaching a point where the original source can no longer be traced because it has been pre-supposed (pre-supposed).
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However, there is a difference between them. Nawiasky groups legal norms, while Kelsen views them more in the context of norms in general, without direct connection to a state.The final difference is that Nawiasky uses the term "staatsfundamentalnorm" instead of "staatsgrundnorm" when referring to the basic norm. His consideration is that "grundnorm
Meanwhile, the highest norm can still change in situations such as rebellion, coup d'état, Putsch, Anscluss, and the like. Although from some legal perspectives, the term "" when referring to the basic norm. His consideration is that "" is still more often used than "The final difference is that Nawiasky uses the term "".
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