One of the great issues in Jurisprudence is the Hierarchy of Norms. Where exactly does law find its moral legitimacy? Can a legal system’s legitimacy be traced back to one ‘Groundnorm’ as Hans Kelsen argued?

Legal science, as Kelsen would like it to be, has to describe a legal norm without either evaluating it or adopting it as an evaluation. This can be done by distinguishing rigorously between the social statement that is the norm itself and the legal-scientific restatement of it that is, or is contained in, a description of the norm. Kelsen terms the norm itself a ‘legal norm (Rechtsnorm)’ and its descriptive restatement a ‘legal proposition (Rechtssatz)’.

Thus, when a jurist (legal scientist) states that the law of a certain country contains the norm ‘theft is to be punished with imprisonment’, this legal proposition is not a comment on whether anybody in that country has a moral or other extra-legal obligation to impose, accept or evade such a penalty. In reading Kelsen, however, one has to bear in mind that, when he refers to a ‘norm’, he is usually speaking elliptically: he is uttering a legal proposition which stands for a legal norm, in much the same way that a picture of a dog shows the dog but does not bark.

Barking!

Once upon a time I studied such things and indeed got my highest Finals mark in the subject. I recall mulling over whether it all comes down to raw power:

But, for Kelsen, it is also an illusion to think that, in a Rechtsstaat (roughly, ‘rule of law state’), ‘the state’ is wholly subject to law: from a ‘legal point of view’, the state and the positive-legal order are the same … Kelsen is perfectly well aware that, in the empirical part, ‘the state’ will turn out to be a heavily armed real apparatus …

We had some revision sessions from Professor Hart himself. Impossibly grand.

Anyway, dutiful readers here know that there are really only Two Questions behind any tricky policy issue:

Who decides?

Who decides who decides?

The current writhings of the UK Labour Party are instructive in this sense.

It turns out that the Labour Party is an ‘unincorporated association’. It’s not a registered company or a limited liability partnership or a charity, ie a body with a (more or less) precisely defined legal form. It’s in the same category as a chess club – a group of people who have set up private rules and arrangements for their own benefit where that benefit is not a business as such: there exist members of the association; that there is a contract binding them inter se; that they have a common purpose which is not business; and that there must have been a moment in time when a number of persons came together to form the association.

It often happens that when such arrangements are set up, the people concerned focus on what they want to do together rather than what happens to any shared assets if it all goes wrong.

For example. Years ago a chess club was set up in a dedicated small building owned by the club. It turns out that hidden in the walls of the building was a hoard of medieval jewels. A club member finds the jewels. Who owns them? The finder? The club? Do any proceeds of sale of the jewels have to go the club and its chess-like purposes, or can the current club members enjoy a personal windfall? What about previous club owners? And so on. What rules are used to decide? Who chose those rules and how to change them? Legal battles over this sort of thing can, if all goes well, use up all the proceeds anyway.

Hence the recent the wrangle in the courts over Jeremy Corbyn’s right to stand again as Labour leader under the party’s rules without the backing of Labour MPs. This issue arose because the rules in the Party’s rulebook were messily drafted, opening the way for the national executive committee (NEC) to give a ruling that was controversial.

In other words, the Labour Party (like every other party) is a dense network of legally binding contracts, each of which might (in theory) be broken in a way prompting a legal dispute. But who in fact ‘owns’ the party and its assets (buildings, photocopiers, paperclips, ‘brand’ etc)? The mass of members, or (say) party officials acting in the name of the party under (ambiguous?) party rules? What if the NEC decides to reform or even split the party in a way many party members won’t accept? Can Labour ‘moderates’ grab the key assets and fend off practical or legal challenges from massed Corbynistas?

The practical possibilities arising from this delicious shambles are jurisprudentially instructive.

Let’s say there is an attempt to create Labour 2.0 led by the great mass of Labour MPs who hope to have the support of most Labour-leaning voters but not most Labour ‘activists’. Disputes if not actual fights would erupt as different factions tried to commandeer different pieces of equipment or property.

The issues would end up in the courts. One side would win, the other lose. If the losers refused to hand back property they then controlled to the legally correct owners, the coercive power of the state could end up being used to achieve that result.

That process works because the great mass of Brits accept it. The Grundnorm is the UK masses’ acquiescence in the state operating in the name of The Queen to use proportional violence (that Kelsenian ‘heavily armed real apparatus’, namely burly bailiffs backed by sturdy police persons) to keep things ticking along for the common weal.

Labour is unusually interesting in that the NEC usually ‘decides’, but ‘who decides who decides’ is much less clear (or at least is much more tense when things get difficult):

National Executive Committee (NEC)

Made up of representatives from each section of the party – government, MPs, MEPs, councillors, trade unions and CLPs. Members vote for their CLP representatives in a ballot each year. The NEC sets the party’s objectives and oversees the running of the party nationally.

Annual Conference

The ultimate authority in the party, Conference decides the policy framework from which the next manifesto will be drawn and sets party rules. Conference considers the policy papers prepared by the policy commissions after consulting local parties. Members choose delegates to represent them at conference – and those delegates could include you.

The Corbyn drama arises because the Labour Party rules give party members such a large and direct say in ‘who decides who decides’. And once a determined push is made by ‘activists’ to swell membership numbers to support one favoured candidate (here J Corbyn) there is not much the party establishment can do.

So, question? Why were the current rules agreed? A detailed answer is here. Basically, it was all about reforming Labour’s traditional entanglement with the trades unions as a bloc:

Ironically the system was intended to stop a candidate who could not command the Parliamentary Labour Party (PLP) reaching the ballot. In response to the dissolution of Electoral College, including the MPs’ section, the nomination threshold to enter the contest was raised to 15 per cent of Labour MPs. Consideration was initially given to a higher threshold of 20 per cent or 25 per cent. But that was rejected on the grounds that it would narrow the field too much; members from both the Blairite and Campaign Group wings of the party favoured a lower number. Nonetheless, 15 per cent was judged to be a safe barrier to any outsider – especially someone from the hard left. That judgement proved to be mistaken …

The bigger question for the future is where to draw the line between having a committed, secure membership and an open democratic process that encourages participation. That is not a new question. When the Labour conference first considered the proposal to admit individuals as members before the First World War, the idea was rejected by trade unions and socialist societies for fear that it may open the door to “men who had not the interests of the party at heart”.

Eventually the benefits associated with admitting individual members were judged to outweigh the risks. The same judgment may yet be made in respect of the contemporary system for electing the leader, though for many the advantages are not currently obvious.

That’s one way of putting it.

It boils down to the fact that Labour has impaled itself on a ratchet haha. It has brought in carelessly drafted rules that are having unintended and unwelcome consequences, namely giving radically minded members too much power. But the rules themselves (including the grundnorm rule on how the rules are changed) can only be changed with difficulty and by involving people chosen by the radically minded members! Thus Labour Rule Book Clause XV:

These rules, or any part thereof, may be amended, altered or additions made thereto by resolution carried at an Annual General Meeting by a vote of two thirds of delegates present, subject to the approval of the NEC under Clause VII.2 above.

Labour MPs know that to get elected as a government Labour has to appeal to millions of people who are not party members. Maybe even (God forbid) appeal to people who vote Conservative!

Those MPs may think that current Corbyn noisy activism among party members is hurtling Labour to cataclysmic defeat and irrelevance. But what can they do to stop it, in law or reality?

What if Labour’s radically minded members just don’t care about getting Labour MPs into Parliament but want to overthrow the system?