Mr. Salman Akram Raja on the basis of an elegant legal argument has
proposed that we should dispense with the concept of the Grundnorm (DT
Nov. 9). By contrast Mr. Ejaz Haider, having quite sensibly shifted from
his earlier analysis in which he erroneously used the terms Constitution
and the Grundnorm synonymously, has now accepted the fact that they are
distinct, and that the Grundnorm is an “evolving” concept.
In this article in responding to these two worthy authors, I shall posit
that since the Grundnorm is the foundational norm that legitimizes the
hierarchy of all other norms in the constitutional order, therefore the
Grundnorm to be meaningful, must have an ontology: i.e., it must be drawn
from the collective life experience of a nation.
In my earlier articles, it was precisely in order to ground the concept
of the Grundnorm in the social and political life of a nation that I had
proposed that it is national consciousness that is embodied in the Grundnorm.
I had then analyzed some of the defining features of national consciousness
and the reference points from which they can be derived. It may be pertinent
to refer to these two articles in view of the subsequent gross misrepresentation
of my argument by Mr. Ejaz Haider. For example I had argued that “The
national consciousness embodied in the Grundnorm is the source of the
constitution….” (DT Oct. 16). Then in the subsequent article,
which was devoted to elaborating the concept of national consciousness
I had argued, “national consciousness is therefore the experiential
dimension of historical bonding amongst a group of people, in terms of
which they apprehend their identity and pursue shared goals for the future”.
Clearly, historical bonding, and hence national consciousness emerges
out of the dynamics of social, economic and political life of a nation
and its forms of apprehension. Therefore the extent of Mr. Haider’s
misrepresentation of my view as a prelude to his ‘critique’
is quite remarkable. He says for example, “Dr. Hussain’s argument
implies that the Grundnorm exists and develops independent of other factors...”.
(Italics mine). To take this misrepresentation to a travesty, he goes
on to attribute to me the proposition that: “The Grundnorm is not
begotten of any thing, but having somehow come into existence, has the
power to beget everything else.” I have said no such thing nor by
any conceivable stretch of the imagination could this be taken to be an
implication of my argument. On the contrary my whole analysis of national
consciousness as the ontological basis of the Grundnorm, points to the
fact of the interplay between the social, economic, political and aesthetic
dimensions of national life, which mould national consciousness.
In misrepresenting my argument, Mr. Haider has deprived himself of introducing
a dimension to his proposition on historical method, which could have
enriched it. He proposes the study of “power dynamics”, and
the circumstances in which individuals make decisions. This indeed is
the standard approach adopted in most historical analyses in recent times.
However, what is missing in such an approach is the role of individuals
and hence consciousness, not as “epiphenomenal events” as
Mr. Haider would have it, but as integral to the analysis. The real challenge
in historical analysis is to explain the dialectic between “material
forces” (economic and political), and the actions of individuals.
Even Marx who is regarded as the author of the ‘materialist’
conception of history, critiqued the ‘vulgar materialists’
in his third thesis on Fauerbach for failing to take account of this dialectic.
“The materialist doctrine that men are the product of circumstances
and that changed circumstances produce changed men, forgets that it is
men who change circumstances”. By excluding the role of human consciousness
in history, ‘material forces’ are converted into abstractions
and reified: i.e. imputed with subjectivity and made into a motor force
of history (deux ex machina). I hope to elaborate on historical method
in my next article. For the moment let us examine the issue of consciousness
in the context of our discussion on the Grundnorm.
The analysis of national consciousness (DT, Oct. 30) enables the formulation
of the simple proposition that certain logical categories must draw meaning
from the actual life of a nation. This brings us to Mr. Raja’s immaculate
legal interpretation of Kelsen’s Grundnorm. (DT, Nov. 9). In explicating
the meaning of this term, Mr. Raja correctly points out that in Kelsen’s
Pure Theory of Law, there is a hierarchy of norms within a legal structure,
with the legal norm at each level being legitimized by a higher order
norm, until we reach the constitutional order itself. It is in establishing
the basis of the legitimacy of a constitution that Kelsen postulates the
concept of the ‘norm of norms’, the Grundnorm. Mr. Raja like
many distinguished legal experts has argued that the Grundnorm is nothing
more than “a logical necessity”, to avoid an “endless
backward regress of norms”. The question that now arises is, can
merely the convenience of closure, or the need to specify a limit, necessarily
give a logical status to the term? In dealing with this question two issues
emerge: (1) The issue of the source of legitimacy and (2) The logical
problem associated with identifying a limit.
Since the whole purpose of producing the term Grundnorm is to legitimize
the constitution, such legitimacy cannot be sought in a purely linguistic
device, drained of any meaning. The concept of the Grundnorm as interpreted
by Mr. Raja, is an empty shell and does not have any ontological status
in reality. It is simply a symbol of the need to achieve closure in the
legal system. By contrast it can be argued that the legitimacy of a constitution
in actual fact can only be drawn from the will of the people. Thus the
Grundnorm becomes meaningful when it is constituted in a national consciousness
that holds its validity to be evident.
The second issue in interpreting the Grundnorm as a purely “linguistic
postulate” designed to place a limit on Kelsen’s hierarchy
of norms, is the logical problem of the limit itself. Aristotle defined
the limit to be “the first thing outside which there is nothing
to be found and the first thing inside which everything is to be found”.
If we apply this definition to Mr. Raja’s interpretation of the
Grundnorm, the problem that arises is that society becomes exogenous to
the legal system. Consequently in terms of this interpretation even though
laws are presumably made to order social life, yet human existence is
reduced to Aristotle’s nothingness.
The logical impossibility of a spurious limit during the process of thinking
about the basis of legitimacy, is deepened further when we consider Wittgenstein’s
paradox: To draw a limit to thought he says, “We should have to
find both sides of the limit thinkable (i.e. we should have to be able
to think what cannot be thought)”.
Given the two types of logical contradiction pointed out by Aristotle
and Wittgenstein respectively, Mr. Raja’s interpretation of the
Grundnorm as “a purely linguistic postulate” without any ontological
reference point in human existence, becomes logically invalid.
Meaning and validity can be given to the concept of the Grundnorm only
when the legitimacy of the constitutional order it signifies, is sought
in the will of the people. Amidst conflict and change that characterize
any society, there is the consciousness of certain common denominators
in terms of which national identities are defined and shared goals collectively
undertaken. The artists, poets, historians and philosophers of a nation
in so far as they articulate and make conscious the collective experience
of a people, also play an essential role in the formation of national
consciousness. Thus it is the social, political, economic and aesthetic
life of a nation and the values it holds dear, that gives to the constitution
its legitimacy and the Grundnorm meaning, if it has any. I would be happy
to accept Mr. Raja’s invitation to banish the Grundnorm. The question
inherent in such an undertaking however is, can we banish consciousness?