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When and why does the Grundnorm Change?

Published online by Cambridge University Press:  16 January 2009

J. W. Harris
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In Pakistan, Uganda and Southern Rhodesia, courts have held themselves entitled to declare that the effect of a successful revolution has been to change the law in their respective jurisdictions. Judges appointed under one constitution have held themselves to be bound to recognise the validity of laws promulgated under a different constitution; the judge's own political opinions have been said to be irrelevant.

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The Cambridge Law Journal , Volume 29 , Issue 1 , April 1971 , pp. 103 - 133
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Copyright © Cambridge Law Journal and Contributors 1971

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References

1 The State v. Dosso (1958) 2 Pakistan S.C.R. 180Google Scholar; Uganda v. Commissioner of Prisons, ex p. Matovu (1966)Google Scholar E.A. 514; Madzimbamuto v. Lardner-Burke N.O. JD/CIV/23/66, 9 September 1966Google Scholar, Government Printer, Salisbury (Lewis and Goldin JJ.), (1968) 2 S.A. 284 (Appellate Division), where the judges at first instance and the majority of the Appellate Division of the High Court of Rhodesia found that the revolution was not yet successful, but on various grounds held that partial recognition could be given to the legislative and administrative acts of the rebel régime; and R. v. Ndhlovu (1968) 4 S.A. 515Google Scholar, where, eight months after Madzimbamuto's case, the Appellate Division held the revolution to be successful, so that all the new régime's laws had internal validity.

2 Dosso, n. 1, supra, 184–185 (Muhammad Munir C.J.), 195 (Shahabuddin J.), 222 (Amiruddin Ahmad J.); Matovu, n. 1, supra, 530, 535 (Sir Udo Udoma C.J.); Madzimbamuto v. Lardner-Burke N.O. (1968) 2 S.A. 284Google Scholar, 326–328 (Beadle C.J.), 364–365 (Quènet J.P.), 384–386 (Macdonald J.A.); R. v. Ndhlovu (1968) 4 S.A. 515, 520–522, 528–535Google Scholar (Beadle C.J.), 538–542 (Quènet J.P.).

3 General Theory of Law and State, Harvard ed., 1945 (hereinafter cited as “G.T.L.S.”), p. 118, cited in Dosso, n. 1, supra, 185–186 (Muhammad Munir C.J.), 195 (Shahabuddin J.); in Matovu, n. 1, supra, 535–536 (Sir Udo Udoma C.J.); and in Madzimbamuto v. Lardner-Burke N.O., JD/CIV/23/66, 10–11 (Lewis, J.) (1968) 2 S.A. 284, 315Google Scholar (Beadle C.J.).

4 “Thus, the basic norm, in a certain sense, means the transformation of power into law”—G.T.L.S., p. 437. Cf. The Pure Theory of Law, Berkeley ed., 1967 (hereinafter cited as “P.T.L.”), pp. 208–211.

5 G.T.L.S., p. 118. Cf. G.T.L.S., p. 437.

6 Madzimbamuto v. Lardner-Burke [1969]Google Scholar A.C. 645, 724–725. In Ndhlovu, supra, n. 1, at 520 and 538, Beadle C.J. and Quènet J.P. interpreted the ruling of the Privy Council to mean that, as soon as the Rhodesian revolution became successful in fact, Rhodesian courts were entitled to regard the new régime as lawful.

7 “Splitting the Grundnorm” (1967) 30 M.L.R. 156, 171–172Google Scholar; “Rhodesia: the Abdication of Constitutionalism” (1969) 32 M.L.R. 19, 22–23.Google Scholar

8 “Reflections on Revolutions” [1967]Google ScholarIrish Jurist 268, 271–273. Cf. Annual Survey of Commonwealth Law (1967), pp. 92–93.Google Scholar

9 “Constitutional Lawyers in Revolutionary Situations” (1968)Google Scholar 7 Western Ontario L.R. 93, 106–107.

10 “Legal Politics: Norms behind the Grundnorm” (1968) 26 C.L.J. 233, 253–254.Google Scholar

11 Supra, nn. 8, 9, 10. The same criticism of the revolution cases was made by counsel for the appellant before the Privy Council in Madzimbamuto v. Lardner-Burke [1969]Google Scholar A.C. 645, 669, 671.

12 “The Courts, Kelsen, and the Rhodesian Revolution” (1969)Google Scholar 19 University of Toronto L.J. 326, 342–344.

13 G.T.L.S., pp. 117, 396, 437; P.T.L., p. 204. Cf. Kelsen: “Professor Stone and the Pure Theory of Law” (1965) 17 Stanford L.R. 1128 (hereinafter cited as “Stanford”), 1144: “My characterisation of the basic norm as ‘hypothesis’ means exactly the same as its characterisation as ‘presupposition,’ which is the literal translation of this Greek term.” Cf. ibid. 1149.

14 “Authorise” = “confer the power to create law”—P.T.L., p. 118.

15 P.T.L., pp. 30, 50–54, 195, 202, 234. Stanford, p. 1143.

16 “With the postulate of a meaningful, that is, non-contradictory order, juridical science oversteps the boundary of pure positivism. To abandon this postulate would at the same time entail the self-abandonment of juridical science. The basic norm has here been described as the essential presupposition of any positivistic legal cognition.” G.T.L.S., p. 437. “Thus the science of law conceives of its object as a logical unit: a system of non-contradictory norms.” Kelsen: “What is the pure theory of law?” (1959–60) 34 Tulane L.R. 269, 271. “(Epistemologically, the science of law) ‘creates’ its object in so far as it comprehends the object as a meaningful whole.” P.T.L., p. 72. Cf. P.T.L., pp. 74, 205–208; Stanford, p. 1143. For discussion of the conditions which must be satisfied for a consistent set of norms to exist, see Wright, G. H. Von, Norm and Action, 1963, pp. 141–144.Google Scholar For discussion of the disciplinary status of legal science, see Wedberg, A., “Some Problems in the Logical Analysis of Legal Science” (1951) 17 Theoria 246.CrossRefGoogle Scholar

17 G.T.L.S., pp. 31–32; P.T.L., pp. 44–50. Stanford, p. 1144.

18 P.T.L., p. 74. “… since the cognition of law, like any cognition, seeks to understand its subject as a meaningful whole and to describe it in non-contradictory statements, it starts from the assumption that conflicts of norms within the normative order which is the object of this cognition can and must be solved by interpretation”—P.T.L., p. 206. (But cf. n. 45, infra.) For discussion of the value of the logical canons of legal science, see Castberg, F., Problems of Legal Philosophy, 1958, pp. 56–72.Google ScholarCf. Gottlieb, G., The Logic of Choice, 1968, p. 14.Google Scholar

19 “A norm forms part of a dynamic system if it has been created in a way that is—in the last analysis—determined by the basic norm.” G.T.L.S., p. 113. “The fact that a certain norm belongs to a certain order is based on the circumstance that its last reason of validity is the basic norm of this order.” P.T.L., p. 195.

20 G.T.L.S., pp. 124–162. P.T.L., pp. 221–278.

21 Kelsen's use of the concept of “determination” in this context is ambiguous. It is the legal scientist who, comparing the higher and the lower norms ex post, places them in a relation of subsumption. The extent to which the norm-authority who creates the lower norm is actually controlled in so doing by the terms of the higher norm is a matter for dispute.

22 G.T.L.S., pp. 15–29. P.T.L., pp. 33–42, 54, 62.

23 G.T.L.S., p. 45. P.T.L., pp. 33–42, 50–54, 108–114. In the latter work Kelsen distinguishes between “sanction” in the broader sense, as meaning any coercive act stipulated by law, and “sanction” in the narrower sense, as meaning only coercive acts stipulated as reactions to legally ascertained behaviour. This refinement of his earlier views meets in part, but by no means completely, criticisms which have pointed out that his insistence on slotting the concepts of duty, delict and sanction into his rigid model results in a severe distortion of these concepts, when comparison is made with their use in ordinary language. Cf. Hart, H. L. A., “Kelsen visited” [1963]Google Scholar U.C.L.A.L.R. 709, 717–722; Woozley, A. D., “Legal Duties, Offences and Sanctions” (1968) 77 Mind 461.CrossRefGoogle Scholar

24 Stanford, p. 1131. It is this internal characteristic which distinguishes an individual legal norm from an individual moral norm, for, although the latter may provide for “sanctions,” these will only be the sanctions of approval or disapproval—ibid.

25 G.T.L.S., pp. 60–61, 137–138. P.T.L., pp. 54–60, 238.

26 P.T.L., p. 119.

27 Cross, Precedent in English Law, 2nd ed., pp. 155–162.

28 G.T.L.S., pp. 115–116.

29 In his Stanford Law Review article of 1965Google Scholar, Kelsen, in answer to a question raised by Professor Stone, tells us that the content of the grundnorm of each national legal order is different, though in every case the grundnorm refers to the ultimate constitutional sources of law for that order—Stanford, pp. 1148–1149.

30 P.T.L., p. 50.

31 P.T.L., p. 199. Cf. Stanford, p. 1145.

32 P.T.L., pp. 198–199.

33 G.T.L.S., p. 126. P.T.L., pp. 221–224.

34 P.T.L., pp. 225–226, 229. (Contra, G.T.L.S., pp. 34–35.) Kelsen now believes that all positive norms are created by acts of will—Stanford, pp. 1138–1139.

35 Sale of Goods Act 1893, s. 51 (1).

36 A more complete example than that presented in the text would illustrate the application of the process of subsumption to rules of evidence, procedure and jurisdiction—G.T.L.S., pp. 128–130. P.T.L., pp. 130–132.

37 Von Wright, n. 16, supra, pp. 96–98, 100–103. Alf, Ross, Directives and Norms, 1966, pp. 69–74.Google Scholar Kelsen, “Derogation,” Essays in Jurisprudence in Honour of Roscoe Pound (R. Newman, Ed.), 1962, pp. 339, 342.

38 Kelsen's distinction between “subjective” and “objective” normative meaning is not clear, but the following interpretation is suggested: where the complete articulation of a normative expression would require the use of a verb-subject other than the subject of the normative verb, its meaning is “subjective”; if it does not require such an additional verb-subject, its meaning is “objective”—contrast: “I (you, he) say(s) you (he, all men) ought to do such-and-such,” and “I (you, he, all men) ought to do such-and-such.”

39 G.T.L.S., pp. 10–11, 117. P.T.L., pp. 30, 46, 193 et seq. Stanford, pp. 1142, 1145, 1146. Cf. n. 19, supra.

40 For discussion of different senses of “validity,” see Von Wright, n. 16, supra, pp. 194–200. Ross, n. 37, supra, pp. 104–105, 177–182. Christie, G. C., “The Notion of Validity in Modern Jurisprudence” (1964) 48 Minn.L.R. 1049.Google Scholar

41 Ross, On Law and Justice, 1958, pp. 25–26.

42 “It is impossible to grasp the nature of law if we limit our attention to the single isolated rule. The relations which link together the particular rules of a legal order are also essential to the nature of law.” G.T.L.S., p. 1. “(The basic norm) is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act.” G.T.L.S., p. 116. Cf. G.T.L.S., pp. 118, 121.

43 Stanford, pp. 1144–1146. Cf. P.T.L., pp. 2–3. See also n. 64, infra.

44 Stanford, p. 1145.

45 Stanford, p. 1144. In his article entitled “Derogation” (n. 37, supra) at pp. 351–355, Kelsen apparently denies the concept of Validity/2 altogether. He there asserts that the “logical canons” referred to in section 2, supra, are really express or implied positive norms. The implication of this passage would seem to be that the grundnorm has no function at all.

46 G.T.L.S., pp. 40, 119, 169–171. P.T.L., pp. 10, 78, 211–214. Stanford, pp. 1139–1140. Kelsen, “On the Pure Theory of Law” (1966) 1 Israel L.R. 1, 2.

47 P.T.L., p. 106. “Legal norms are not valid because they themselves or the basic norm have a content the binding force of which is self-evident. They are not valid because of their inherent appeal. Legal norms may have any kind of (sc. moral or political) content. There is no kind of human behaviour that because of its nature, could not be made into a legal duty corresponding to a legal right. The validity of a legal norm cannot be questioned on the ground that its contents are incompatible with some moral or political value.” G.T.L.S., p. 113. “Law is always positive law, and its positivity lies in the fact that it is created and annulled by acts of human beings, thus being independent of morality and similar norm systems.” G.T.L.S., p. 114. “The validity of a positive legal order does not depend on its conformity with some moral system.” P.T.L., p. 67. (At P.T.L., pp. 17–23, Kelsen refers to a judgment that behaviour accords with a valid norm as a “value judgment.” This terminology is misleading; but his description of the value as “relative” to the human source of the norm makes it plain that legal norms are not being described as Valid/4. “… the statement ‘law is moral by nature’ does not mean that law has a certain (sc. moral) content, but that it is norm—namely a social norm that men ought to behave in a certain way. Then, in this relative sense, every law is moral; every law constitutes a—relative—moral value.” P.T.L., p. 65. Cf. Kelsen, “Norm and value” (1966) 54 Cali.L.R. 1624.

48 G.T.L.S., p. 373. P.T.L., p. 332.

49 G.T.L.S., p. 374. P.T.L., p. 329. Cf. Hart, n. 23, supra, pp. 772–778.

50 P.T.L., p. 10.

51 G.T.L.S., p. 121.

52 P.T.L., p. 213. “… value and reality belonging to two different spheres, just as the ‘ought’ and the ‘is’”—P.T.L., p. 19. “Norms have a reality different from natural reality—a social reality”—P.T.L., p. 86. “(Law is to be contrasted with) causally determined reality”—P.T.L., p. 104.

53 n. 46, supra.

54 “From the standpoint of scientific cognition of positive law, its justification by a moral order different from the legal order, is irrelevant, because the task of the science of law is not to approve or disapprove its subject, but to know and describe it. True legal norms, as prescriptions of what ought to be, constitute values; yet the function of the science of law is not the evaluation of its subject but its value-free description. The legal scientist does not identify himself with any value, not even the legal value the describes.” P.T.L., p. 68. Cf. G.T.L.S., pp. 48–50, and n. 47, supra.

55 P.T.L., p. 218n. At G.T.L.S., p. 413, however, Kelsen says that an anarchist would not ascribe “validity” to the positive legal order, and at Stanford, p. 1144, he says that a communist would deny that a legal order of a capitalist society is “objectively valid.” These statements can only be reconciled with the citation in the text if it is assumed: (a) that the anarchist of G.T.L.S. and the communist of Stanford are not supposed to be a acting as legal scientists; and (b) “validity” in these contexts is Validity/4.

56 “If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is a sovereign in that society, and the society (including that superior) is a society political and independent.” Austin, J., The Province of Jurisprudence Determined, , Hart ed., 1954, p. 194.Google Scholar

57 “There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system's ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.” Hart, H. L. A., The Concept of Law, 1961, p. 113.Google Scholar Hart here uses “valid” in the sense of valid/1. He is right (it is submitted) when he asserts (p. 107) that the rule of recognition cannot be valid/1. But his criticism of Kelsen's statement that the validity of the basic norm is presupposed as a “dark saying” (p. 106) is misplaced, if Kelsen is here understood to be speaking in terms of validity/2.

57a In his Israel Law Review article (n. 46, supra) at p. 6, Kelsen says that those who consider an order as an objectively valid order “in their thinking, presuppose the basic norm as the meaning of an act of will. Since, however, an act of will does not exist in reality, but only in the juristic thinking of men who interpret the coercive order as an objectively valid legal order, the presupposition of the basic norm is a typical case of a fiction in the sense of Vaihinger's Philosophie des Als-ob.” The grundnorm is postulated by Kelsen as something logically essential to explain the practice of legal scientific discourse. If the logical bases of this discourse can be explained in some better way, the grundnorm is useless. But there can be no question of its being true or false; i.e., no amount of empirical inquiry can establish that it does or does not exist as a psychological or sociological phenomenon. Cf. Vaihinger, H., Philosophy of “As If.” 1924, pp. 85–90.Google Scholar

58 If there is a written constitution which does not specify custom as a source of law, and yet custom is actually treated as such (n. 33, supra), the “material constitution” of the society in question will presumably count as a “customary constitution” for the purposes of the above distinction only if custom is regarded as an effective means of varying the written consitution.

59 G.T.L.S., p. 437; P.T.L., p. 46–48, 86–87. Stanford, p. 1142.

60 P.T.L., p. 201; Stanford, p. 1143.

61 P.T.L., p. 105. “… the aim of this general theory of law is to enable the jurist concerned with a particular legal order, the lawyer, the judge, the legislator or the law-teacher, to understand and to describe as exactly as possible his own positive law …”—G.T.L.S. xiii. Glendon Schubert, a protagonist of “behavioural jurisprudence” (the successor movement to the school of American realists), has written: “…candor compels the admission that the order mechanical jurisprudence remains the overwhelmingly dominant metaphor among judges themselves, practising lawyers, journalists and the public.” , Schubert, “Behavioral jurisprudence” (1968) 2 Law and Society Review, 407, 409.CrossRefGoogle Scholar By “mechanical jurisprudence” Schubert is referring (disparagingly) to what Kelsen seeks to explain and justify under the approbative title of “legal science.”

62 G.T.L.S., p. 437.

63 Stanford, p. 1142.

64 “The function of the basic norm is not to make it possible to consider a coercive order which is by and large effective as law for—according to the definition presented by the pure theory of law—a legal order is a coercive order by and large effective; the function of the basic norm is to make it possible to consider this coercive order as an objectively valid order…. The basic norm does not answer the question as to whether the existing order is a legal order but the question as to what is the reason for the validity of this legal order.” Stanford, pp. 1144–1146. Earlier in the same article, Kelsen criticises Stone for suggesting that Kelsen's theory stipulated as one of the conditions for the validity of a single norm the membership by that norm of a system of norms. It is submitted that it is Kelsen who is at fault here, in that he slides from one sense of “validity” to another. In the passage quoted in this footnote, “validity” = Validity/2. In the earlier passage (pp. 1139–1141) “validity” sometimes means Validity/1, as where Kelsen states that a statute is valid as soon as it is enacted and before it can become effective; and sometimes “validity” means Validity/3, as where Kelsen states that a norm loses its validity if it fails to become by and large effective.

65 G.T.L.S., p. 437.

66 G.T.L.S., p. 62, P.T.L., pp. 11, 116.

67 G.T.L.S., pp. 118, 437. P.T.L., pp. 46, 86, 202. Stanford, pp. 1139–1142.

68 P.T.L., p. 236.

69 G.T.L.S., p. 40. P.T.L., p. 24.

70 P.T.L., pp. 47–48.

71 Judgments were delivered on 29 January 1968 and 13 September 1968 respectively. The Rhodesian unilateral declaration of independence was made on 11 November 1965.

72 The course recommended in the Annual Survey of Commonwealth Law (1967), p. 93.Google Scholar

73 R. W. M. Dias, n. 10, supra, p. 257, has suggested that if the Rhodesian judges had stood out against the 1965 constitution—which was set up by the rebel régime—on grounds of morality or justice, they might well have forced the new grundnorm to incorporate the principle for which they stood out. Cf. F. M. Brookfield, n. 12, supra, p. 344, who impliedly criticises the view that the decision of the Rhodesian judges would make little difference to the success of the revolution. The same point was made by counsel for the appellant when Madzimbamuto's case came before the Privy Council, [1969] A.C. 645, 680.

74 (1968) 2 S.A. 284, 321.

75 Ibid. 326, 418.

76 Ibid. 369, 415.

77 Ibid. 430, 432; cf. Beadle, C.J. in R. v. Ndhlovu (1968) 4 S.A. 515, 522.Google Scholar For discussion of the argument that judges cannot, or ought not to, pronounce upon the validity of the constitution under which they were appointed, see Welsh, R. S., “The constitutional case in Southern Rhodesia” (1967) 83 L.Q.R. 64Google Scholar, 73, 75, 81, 87–88; Palley, n. 80, infra, pp. 280–284; Annual Survey of Commonwealth Law, 1968, pp. 108–113Google Scholar; Honoré, n. 8, supra, pp. 273–278; De Smith, n. 9, supra, pp. 93–110, Macfarlane, L. J., “Pronouncing on Rebellion: The Rhodesian Courts and U.D.I.” [1968] P.L. 325, 355–361Google Scholar; Dias, n. 10, supra, pp. 238–239; Brookfield, n. 12, supra, pp. 330–340. The argument is considered in the text at the end of s. 5, infra.

78 (1968) 4 S.A. 515, 531 (Beadle C.J.); 542 (Quènet J.P.); 554 (MacDonald J.A.).

79 Dhlamini v. Carter N.O. (1968) 2 S.A. 445Google Scholar; Madzimbamuto v. Lardner-Burke N.O. (No. 2) (1968) 2 S.A. 457Google Scholar; Dhlamini v. Carter N.O. (No. 2) (1968) 2 S.A. 474Google Scholar; Dhlamini v. Carter N.O. (No. 3) (1968) 2 S.A. 467.Google Scholar

80 For the personal and political backgrounds of the Rhodesian judges, see the article by Mrs. Claire, Palley, “The Judicial Process: U.D.I. and the Southern Rhodesian Judiciary” (1967) 30 M.L.R. 263.Google Scholar

81 The Southern Rhodesia (Constitution) Order 1965 (1965 S.I. 1952), was passed under the Southern Rhodesia Act 1965. S. 2 (1) of this order provides: “It is hereby declared for the avoidance of doubt that any instrument made or other act done in purported promulgation of any constitution for Southern Rhodesia except as authorised by act of Parliament is void and of no effect.” S. 3 (1) provides: “No laws may be made by the legislature of Southern Rhodesia, no business may be transacted by the legislative assembly and no steps may be taken by any person or authority for the purposes of or otherwise in relation to the constitution or reconstitution of the legislative assembly or the election of any person to be a member thereof….” S. 4 (1) (b) suspends various provisions of the 1961 Constitution, relating to the functioning of the executive in Southern Rhodesia. S. 6 provides: “It is hereby declared for the avoidance of doubt that any law made, business transacted, step taken or function exercised in contravention of any prohibition or restriction imposed by or under this order is void and of no effect.” The majority of the Privy Council in Madzimbamuto's case interpreted these provisions to mean that no body in Southern Rhodesia can make law, no matter how necessary for preserving law and order or for any other purpose, [1969] A.C. 645, 729–731. Lord Pearce, in his dissenting judgment, said that the order should be interpreted in the light of the directive issued by the Governor soon after U.D.I., which required officials to continue with their “normal tasks.” On this basis he concluded that the order was intended to nullify only acts done in purported exercise of powers under the 1961 Constitution, and consequently that it was possible for the courts to recognise some of the laws enacted by the rebel legislature otherwise than under that constitution—Ibid. 742–745.

82 G.T.L.S., pp. 121, 220–221. P.T.L., pp. 214–217. Kelsen believes: (a) that the principle of effectiveness, according to which only the law effective within a territory is valid law in that territory, is a rule of positive international law—an extreme version of the declaratory (rather than constitutive) effect of recognition of states; (b) that systems of municipal law are subordinate to, and cannot contradict, positive international law. If these opinions were correct it would follow that judges in a municipal court would be directly authorised to presuppose new grundnorms following successful revolutions. However, the first of these opinions is highly controversial and the second is true of some jurisdictions but not of others. Kelsen does not base these opinions on the evidence of positive law. He deduces them from a metaphysical interpretation of the concept of validity—see supra, p. 115.

83 G.T.L.S., pp. 132–133; P.T.L., p. 234.

84 P.T.L., p. 10; Stanford, pp. 1136–1137.

85 P.T.L., p. 204n.

86 P.T.L., p. 72.

87 G.T.L.S. xiv, p. 163. At Stanford, p. 1134, Kelsen rejects Stone's suggestion that he (Kelsen) had expressed the “foolish opinion” that propositions of the pure theory of law bind the judge in the way in which legal norms bind him.

88 G.T.L.S., p. 172.

89 Palley, n. 80, supra, pp. 280–284. Honoré, n. 8, supra, pp. 273–278. Dias, n. 10, supra, pp. 243–244, 256–258. Macfarlane, n. 77, supra, pp. 331–335.

90 Ross, On Law and Justice, 1958, p. 31.

91 Fuller, L. L., “Positivism and Fidelity to Law—Reply to Professor Hart” (1958) 71 H.L.R. 630, 661–669.Google Scholar

92 Dworkin, R. M., “The Model of Rules” (1967) 35 University of Chicago L.R. 14.Google ScholarSmith, J. C., “Law, Language and Philosophy” (1968) 3 U.B.C.L.R. 59, 107–112Google Scholar, McBride, W. L., “The Essential Role of Models and Analogies in the Philosophy of Law” (1968) 43 N.Y.U.L.R. 53Google Scholar, 72–82.

93 Fuller, n. 91, supra, pp. 643–648; The Morality of Law, 1964, pp. 33–44, 46–95, 106–118, 145–151.Google Scholar

94 [1967] 1 A.C. 853, where the House of Lords held that the acts of the government of the German Democratic Republic could be recognised, as that government had power delegated to it by the government of the U.S.S.R. (which our government had recognised as the sovereign authority for East Germany).

95 [1967] 1 A.C. 853, 901.

96 [1967] 1 A.C. 853, 953–954.

97 S. 4 of the Statute of Westminster 1931, which purports to restrict Parliament's power to legislate for the dominions could, in theory, be repealed— British Coal Corporation v. R. [1935]Google Scholar A.C. 500, 520 (Lord Sankey). In Madzimbamuto's case, Lord Pearce (in his dissenting judgment) added to his somewhat strained construction of the 1965 legislation—n. 81, supra—a comment which entails that parliamentary sovereignty could be limited in some circumstances. He said [1969] A.C. 645, 745: “there is no indication in the Order in Council that it intended to exclude the doctrine of necessity or implied mandate by enjoining (inconsistently with the Governor's directive) continuing disobedience to every act or command which had not the backing of lawful authority. Even had it done so, I feel some doubt as to how far this is a possible conception when over a prolonged period no steps are taken by the Sovereign himself to do any acts of government and the results would produce a pure and continuous chaos or vacuum.” If this opinion were ever accepted by the courts it would represent a unique departure in English constitutional law.

98 n. 81, supra.

99 [1970] 3 W.L.R. 934. A superior court could, in theory, reach a different conclusion if (a) it adopted the interpretation of the effect of non-recognition suggested by Lord Wilberforce in the Carl Zeiss case (n. 96, supra;) and (b) it preferred the interpretation of the legislation of 1965 suggested by Lord Pearce to the interpretation of the majority of the Privy Council in Madzimbamuto's case, n. 81, supra. [And see note in Case and Comment, supra, p. 37, Ed.]

1 At p. 951. In view of his understanding of the purpose of the 1965 legislation to be “blockade,” it is difficult to understand why Sir Jocely Simon P. did not accept the submission that all decrees issued by judges purporting to act under the rebel constitution should not be recognised. On 7 April 1970, the Senior Registrar of the Probate Divorce and Admiralty Division issued a practice direction by which no grant of representation made by the High Court of Rhodesia after 13 September 1968 (the date of the Ndhlovu decision) will now be resealed by the High Court of Justice in England—[1970] 1 W.L.R. 687. Current United Kingdom legislation has conferred on the English courts jurisdiction to grant divorces to unfortunate women in the position of the petitioner in Adams' case.

2 Fieldsend J. resigned in March 1968, Dendy Young J. in August 1968.