If the Grundnorm was a figment of Kelsen’s imagination, no doubt Kelsen was imaginative enough to still keep our interest. Whether in favour or not of his works, many —if not most— legal scholars after him construct their theoretical castles either using his ideas or attacking them. I will not duel with the first group —brevitatis causa. However, the second group, his detractors are wrong in what is referred to the Grundnorm.
First, we have to understand the theory of Kelsen as a whole. Secondly, we have to go through his works —not just his Pure Theory of Law— to have a real grasp of what he intended to do with the Grundnorm. Organically understood, his theory about legal orders presupposes no value judgments. He is not interested in the correctness or not of the law, if a given law is just or unjust. His only concern is its validity, that special mode of existence of any particular norm and the juridical order as a whole. His theory is not political science or morality.
Undoubtedly, by following a simple chain of application and creation, we will reach the highest norm in the given legal order —i.e. the constitutional norm. And here is where the problem we are discussing starts. For some authors —I follow Hart here for simplicity— we just need “the word ‘validity’ […] to answer questions which arise within a system of rules […].” When in presence of the highest norm or rule, we would not need to presuppose its validity —its origin— but simply focus on its appropriateness. But, when is a norm or rule appropriate? More than an argument, it seems a theoretical subterfuge.
Kelsen himself gives the answer to both, presupposition and appropriateness. Although he is not interested in value judgments, he distinguishes clearly between a norm per se and its creation. The latter is condition sine qua non for the former, but not its condition per quam as he makes clear. Therefore, when in presence of the highest norm or rule of a given legal order we may respect it —it is effective— solely because we know it is valid —exists in a particular way, without giving much thought about its creation. So, we either think that norm or rule is appropriate or we presuppose —figment of our imagination— that something else validates it. Whether we follow one or the other version, we support the same notion.
On the one hand, to label anything —in this case, a norm or rule— as ‘appropriate’ means we are giving that thing a value —i.e. we make a value judgment between different variables; here, the highest norm of a legal order and the legal order as a whole. On the other hand, to presuppose the existence of the Grundnormimplies also a value judgment. For one thing is to support the idea that the norms have nothing to do with moral values, yet another thing is to maintain that the act of creation has no positive or negative weight —e.g. what would happen if the creation of the first constitution was not licit? So, if a figment of Kelsen’s imagination, then Hart —and other detractors— have either a more subtle way of presenting the same chimera or we prefer to understand what has been more analytically translated.