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?