Grundnorm as Conceptual Bootstrapping: An Ontogenetic Perspective

Abstract

The Kelsenian Grundnorm is one of many competing answers proposed for the fundamental ontology of law, that is, an answer to the question ‘what is law?’ This paper suggests a different perspective based on developmental psychology. Grundnorm and its alternatives (such as the Austinian commands of a sovereign, the Hartian rule of recognition and the Realist view of law as whatever judges do) can be seen as a form of conceptual bootstrapping, a stage in the development of each individual that may be necessary on the way to ‘adult’ concepts but does not have to be retained as a part of it. For example, some commonly held ideas of naïve physics (eg. impetus) are simply wrong and thus incompatible with physics proper, whereas learning to count using natural numbers is foundational for learning the rest of mathematics and does not need to be discarded. The failure of legal theory to reach any kind of agreement on this point suggests that Grundnorm and others might be more akin to impetus than natural number, and as such they do not necessarily have to play any kind of a role in a synchronic theory of legal reasoning. This paper suggests that in order to take law seriously as the object of modelling, we should consider the legal reasoning process and its development on an individual level.

Keywords: conceptual bootstrapping, Grundnorm, Hans Kelsen, ontogeny and the law