Where does power come from? To be legitimate, a law must be enacted by a suitably constituted authority. But this authority must be constituted by some previously enacted law. This chain can’t continue backward forever; there must be some highest authority that appeals to a basic norm rather than to a foregoing set of rules. But how can the legal existence of this basic norm be established? There seem to be only two possibilities:
- The basic norm is enacted law. Since it’s not enacted by any other authority, this means it’s enacted by the highest authority itself.
- The basic norm isn’t enacted law. This means that its validity isn’t derived from that of any other norm but is an “original fact” that’s needed to underwrite the validity of every other norm in the system.
“Two, and only two, answers seem possible,” writes University of Copenhagen philosopher Alf Ross. “But both seem unacceptable. That is the puzzle.”
Somewhat related: The United Kingdom’s High Court of Chivalry was created in the 14th century to consider cases of the misuse of heraldic arms. It had been silent for centuries when suddenly in 1954 it was called on to hear a case: The Palace Theatre was displaying the arms of the Manchester city council on its seal, suggesting a link between the two. Before hearing the case, the court first had to rule on whether it still existed. It decided that it did. (And the city council won.)
(Alf Ross, “On Self-Reference and a Puzzle in Constitutional Law,” Mind 78:309 [January 1969], 457-480.) (Thanks, Julian.)