The 1999 constitution as ‘grundnorm’

Nigeria is famously notorious for borrowing concepts from elsewhere, distorting the meaning and intention of the original users to suit certain interests, and carrying on as though everything is right. Take for instance, the concept of ‘federation’ currently adopted to disguise the practice of absolute dictatorship of the oriental despotic brand in ancient Babylon and Persia which is currently the practice in Nigeria. Same goes for the concept “nation”, which is used in reference to Nigeria, whereas we are in fact a multi-national, multi-cultural, heterogeneous state superstructure. But even more disturbing is the gradual acceptance of the 1999 Constitution as the “grundnorm” of the country, such that it is assumed that the constitution justifies itself and that all queries regarding the propriety and legitimacy of the constitution is simply unnecessary.

Indeed, the terms “Nigerian Constitution” and “Grundnorm” are now so frequently used interchangeably that it is taken for granted that they mean the same thing. Judgments have been given, even at the Supreme Court level by the most regarded judges in the country on this presupposition! At summits, conferences, political rallies, etc., speeches have been delivered, conclusions reached and communiqués written on this supposed synonymy of both terms.

But nowhere did the Austrian jurist and philosopher Hans Kelsen, who originated the concept, equate it with the constitution of any country, least of all Nigeria. So how did Nigerians, educated Nigerians for that matter, come to this very strange reductionist and simplistic interpretation? Is it so deliberately taught to law students in law departments across the country’s universities and in law schools to cover up a point? Is it innocent pitiable ignorance? Or is it simply a conspiracy to misinform the people and continue to give a sense of legitimacy to a warped union surviving on corruption, injustice and callous denial of a people’s natural right to self-determination and management of their lives, destinies and resources?

On the concept of the grundnorm
Hans Kelsen (1881-1973) was an Austrian jurist and philosopher who was greatly influenced by the philosophic thoughts of Immanuel Kant (1732-1804). Kelsen originated the term “grundnorm”, a German term meaning “basic norm” to ground the justification for law on a solid anchor. Kelsen’s argument is that all laws and constitutions are creations of men and no creation of man can justify itself. There must be a background, a basis that not only explains the character and content of human laws but legitimizes them. It is such “grundnorms” that validates positive laws scripted in constitutions.

Kelsen was in a sense following David Hume’s (1711-1776) idea that we cannot derive an “ought” from an “is”. If all the premises of an argument are descriptive, telling us that this or that is the case, there cannot follow a prescriptive conclusion from it. Kelsen thus observed that the actions and events that constitute the enactment of law are all within the sphere of what “is” the case; they are all within the sphere of actions that take place in the world. But at the same time, legal norms tend to be prescriptive; they purport to guide, rather than describe conduct. Thus, to get an “ought” type of conclusion from a set of “is” premises, one must probe higher to a pristine first premise, hence the notion of the “grundnorm”, a supposed higher law from which the positive laws spring.

The Ideal Interpretation of the Grundnorm
As highlighted above, nowhere in Hans Kelsen’s discussion on the grundnorm did he equate it with the constitution of the state. Otherwise, what would be the grundnorm for a society such as Britain which does not operate a written constitution? The point of Kelsen’s theory is that all laws have metaphysical underpinnings. Grundnorms therefore are axioms, first principles and presuppositions upon which the laws of a state are founded. They are what Aristotle would describe as first principles. Kelsen’s belief in the hierarchy of norms stipulates that norms derive their validity by reference to an immediate higher one, with the ultimate being the grundnorm.

From the foregoing, it is obvious that what is meant by Kelsen is a metaphysical, immaterial component, and could never be anything akin to the Nigerian Constitution or any country’s constitution for that matter. The grundnorm represents the worldview, social consciousness at any point of a people’s historical development, culture, beliefs, and mores of a people. It is these that determine the content and character of the laws of any people and provides explanations, justifications and validations for their laws. This is why laws differ between peoples because of the differences in their worldviews and culture.

Let us take as an instance the American society. The history of that country shows that it was founded on the ideologies of freedom, liberty and individualism. These fundamental principles therefore serve as the “grundnorm” on which all laws of the United States, including the 1776 document on the Declaration of Independence are based. Later on, specifically at the latter part of the 19th century, there arose a complementary ideology – pragmatism, which came to dominate American life and style. Liberty and pragmatism therefore can be described as the grundnorms on which the American justice system and state is founded.

The Germans on their part have always been idealist in their philosophic temperament. Idealism is a metaphysical principle which emphasizes the power of the subject – the human. It believes in the power of man to create and recreate the world and to alter it to suit one’s will. That becomes the “grundnorm” on which their justice system and laws rest. When one sees for example, such eccentric and unusually courageous individuals as Nietzsche, Bismarck and Hitler attempting to take on the world and bring it under subjection as it suits their whims, they are simply manifesting the idealist metaphysical temperament of the German.
To be continued tomorrow
Arodovwe is manager at Urhobo Historical Society Headquarters.