We explain what the Kelsen Pyramid is in the legal system, its levels and control mechanisms. Also, what does it represent in Mexico.
What is the Pyramid of Kelsen?
The Kelsen Pyramid, the Kelsenian Pyramid or the Pyramid of the legal hierarchy is the graphic representation of the legal system through a pyramid segmented into various strata or levels. Represents a vertical relationship between the different legal norms, as understood by the Austrian jurist and philosopher Hans Kelsen (1881-1973), from the doctrine positivist.
This normative pyramid arises from the idea that all Legal standard gets its value from a rule superior in hierarchy, according to three different hierarchical levels in which Kelsen divided his pyramid:
- The fundamental level. At the top of the pyramid, where the Magna Carta, National Constitution or the base legal text from which all the others emanate laws and provisions. It is the key text on which no hierarchy has any institution legal.
- The legal level. Located in an intermediate step and can be divided into many sub-steps, along which the set of laws that make life within the constitutional legal framework will be ordered according to hierarchy, from the most (top) to the least fundamental (bottom).
- The base level. At the end of the pyramid, being the widest, since it contains the judgments of the legal bodies, which are much more abundant compared to the previous steps, at the same time that they are less fundamental.
This hierarchical order is sustained, according to Kelsen, due to two different forms of control mechanism, which are:
- By way of exception. Those decisions of ordinary courts in which a judge rules the application of some rule and its relationship with the rest of the pyramid, sometimes having the precedent of customary justice.
- By way of action. When specialized bodies (such as the Supreme Court) declare any rule unconstitutional and therefore prevents it from being part of the legal system, completely losing its entry into force.
Kelsen's pyramid in Mexico
In the Mexican case, the Kelsen Pyramid is made up of four hierarchical levels, which are:
- The Political Constitution of the United Mexican States. Located at the top of the country's Kelsen Pyramid is the Magna Carta, as in most modern democratic republican states. It consists of three fundamental parts: the preamble, the dogmatic part and the organic part. Along with it are the International Treaties on Human rights that nation have subscribed.
- Federal Laws. The second rung of the Pyramid is occupied by the set of federal laws, since it is a federal nation. Said laws are in charge of governing the set of different Mexican states, apply to the entire nation as a whole and are made up, in turn, of the following sub-steps:
- The formal laws. That is, the State Constitutions, State Laws, Organic Laws and Official Norms.
- International Treaties not related to Human Rights. Like commercial, political, diplomatic agreements, etc.
- Local Laws. This set of laws describes the powers of the municipalities, purely local and minority in comparison with the upper rungs of the pyramid. These are the "ordinary" laws, of lesser rank, but which govern the rules and regulations. regulations of the last rung.
- The basic rules and regulations. In this last step, the broadest and the one that serves as the base of the pyramid, are the regulations, of a legislative nature, as well as the Individualized Legal Norms, which are concrete legal actions, such as the contracts or wills, and that they can never contravene the upper rungs of the pyramid.