When Kelsen Meets U.S. Law

Last month’s posts demonstrated how difficult legal concepts can be to grasp and highlighted how they are sometimes even harder to translate. Legal translators know that the preliminary challenge is working with different languages, but that conclusions are drawn by translating contrasting legal systems. These legal systems are created by societies who naturally have distinct views on how to govern themselves.

A society articulates these views and rules of governance through language and values. This means that legal translators have to constantly keep up on a number of skills from source and target language mastery to subject-matter and cultural expertise. And this blog is all about helping you do that. It’s about helping legal translators in particular better understand what is at the heart of the meaning of certain legal concepts. Now that we’ve taken a step back and thoroughly covered the meaning of common law and equity, it’s time to jump in to the quid of the matter: sources of law (fuentes del derecho).

There’s no easy way to explain the concept of sources of law. One could try a reductionist approach and say that sources of law are where the law comes from, but that doesn’t help much, does it? At the risk of getting too philosophical, let me break it down like this:

Humans are social animals.

We live in societies.

Living in societies means giving up some freedom and autonomy in exchange for the benefits of a social order.

That social order can get chaotic. So we preserve and improve it with rules.

Those rules can be cultural, moral, and legal.

It’s not always easy tell what kinds of rules we’re looking at. There can be overlap and oftentimes people want to use the law to impose their cultural or moral convictions on others.

So we need to draw the line somewhere.

Legal thinkers in the Western world have been trying to draw that line somewhere for a very long time. One of the most prominent and thoroughly discussed thinkers is Austrian jurist Hans Kelsen. You might know Kelsen as the author of the 1920 Austrian Constitution. And if like me, you’re a philosophy buff, you also know him as the pyramid guy (and I mean that with all due respect). In a book called “Pure Theory of Law” first published in 1934, Kelsen put forth a novel idea. He said that if we want to know which of these multiple rules society creates for itself are actually legal rules, we first need to identify the Grundnorm (norma fundamental) to understand which rules belong to our system. Imagine the Grundnorm as a colander, where the pasta you cooked represents legal norms and the water you boiled it in is everything else.

We use Kelsen’s pyramid in the Civil Law world to explain sources of law.

An American lawyer would never actually do this exercise, because that’s simply not how lawyers are trained to think about the law in the United States. But we’re going to use Kelsen’s pyramid anyway for didactic purposes.

If we drew a pyramid that represented the United States to identify American sources of law, we would have the U.S. Constitution at the very top and our pyramid would look something like this:

One thing that’s paramount to remember about sources of law is that they can be classified as primary (primarias) or secondary (secundarias). Primary sources are the ones I have shown above and secondary sources are books and articles that clarify and summarize primary sources. By that rationale, legal encyclopedias, treatises and articles in law reviews can be considered secondary sources of law. 

I know what you’re thinking, “That can’t possibly be it, can it?” Of course not. This is an oversimplification for educational purposes. In this post, I’m assuming no prior legal knowledge on behalf of the reader. I’m assuming you’re reading my Back to Basics series because you’re new to this stuff. This is the first building block to understanding sources of law. Stay glued to your screen, because there is a lot more to come.

 

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