FIDELITY TO LAW 41 ject of a dedicated life For if law is made possible by "fundamen tal accepted rules'-which for Austin must be rules, not of law but of positive morality - what are we to say of the rules that the lawmaking power enacts to regulate its own lawmaking? We have election laws, laws allocating legislative representation to specific geographic areas, rules of parliamentary procedure for the qualification of voters, and many other laws and of similar nature. These do not remain fixed, and all of them shape in varying degrees the lawmaking process. Yet how are we to distinguish between those basic rules that owe their validity to acceptance, and those which are properly rules of law, valid even when men generally consider them to be evil or ill-advised? In other words, how are we to define the words < fundamental and "essential" in Professor Hart's own formulation: 'certain fundamental accepted rules specifying the essential lawmaking The solution for this problem in Kelsen's the instructive Kelsen does in fact take the plunge over which Austin hesitated too long. Kelsen realizes that before we can distinguish between phat is law and what is not, there must be an acceptance of some basic procedure by which law is made. In any legal system there must be some fundamental rule that points unambiguously te the source from which laws must come in order to be laws. Thi rule Kelsen called"the basic norm. In his own words, The basic norm is not valid because it has been created in a certain way but its validity is assumed by virtue of its content. It is valid then. like a norm of natural lay The idea of a pure positive law. like that of natural law, has its limitations. 11 It will be noted that Kelsen speaks, not as Professor Hart does offundamental rules that regulate the making of law, but of a single rule or norm. Of course, there is no such single rule in any modern society. The notion of the basic norm is admittedly a symbol, not a fact. It is a symbol that embodies the positivist quest for some clear and unambiguous test of law, for some cle sharp line that will divide the rules which owe their validity to their source and those which owe their validity to acceptance and intrinsic appeal. The difficulties Austin avoided by sticking with the command theory, Kelsen avoids by a fiction which sim plifies reality into a form that can be absorbed by positivis i KELSEN, GENERAL THEORY OF LAW AND STATE 4oI (3d ed. I949)FIDELITY TO LAW ject of a dedicated life. For if law is made possible by "fundamen￾tal accepted rules" - which for Austin must be rules, not of law, but of positive morality - what are we to say of the rules that the lawmaking power enacts to regulate its own lawmaking? We have election laws, laws allocating legislative representation to specific geographic areas, rules of parliamentary procedure, rules for the qualification of voters, and many other laws and rules of similar nature. These do not remain fixed, and all of them shape in varying degrees the lawmaking process. Yet how are we to distinguish between those basic rules that owe their validity to acceptance, and those which are properly rules of law, valid even when men generally consider them to be evil or ill-advised? In other words, how are we to define the words "fundamental" and "essential" in Professor Hart's own formulation: "certain fundamental accepted rules specifying the essential lawmaking procedure"? The solution for this problem in Kelsen's theory is instructive. Kelsen does in fact take the plunge over which Austin hesitated too long. Kelsen realizes that before we can distinguish between what is law and what is not, there must be an acceptance of some basic procedure by which law is made. In any legal system there must be some fundamental rule that points unambiguously to the source from which laws must come in order to be laws. This rule Kelsen called "the basic norm." In his own words, The basic norm is not valid because it has been created in a certain way, but its validity is assumed by virtue of its content. It is valid, then, like a norm of natural law .... The idea of a pure positive law, like that of natural law, has its limitations.1 It will be noted that Kelsen speaks, not as Professor Hart does, of "fundamental rules" that regulate the making of law, but of a single rule or norm. Of course, there is no such single rule in any modern society. The notion of the basic norm is admittedly a symbol, not a fact. It is a symbol that embodies the positivist quest for some clear and unambiguous test of law, for some clean, sharp line that will divide the rules which owe their validity to their source and those which owe their validity to acceptance and intrinsic appeal. The difficulties Austin avoided by sticking with the command theory, Kelsen avoids by a fiction which sim￾plifies reality into a form that can be absorbed by positivism. 11 KELSEN, GENERAL THEORY OF LAW AND STATE 40I (3d ed. I949). I958] 641