PYRAMID OF KELSEN: STRUCTURE, IN MEXICO, COLOMBIA, ARGENTINA - CULTURE VOCABULARY - 2024

The Pyramid of Kelsen is a graphical representation showing the hierarchy of laws in any organized social system. It is often used in the field of law to explain the structure in which the legal norms of a country are ordered.

The Pyramid was created by Hans Kelsen, an Austrian jurist, philosophy professor, and politician. Kelsen was born in the late 19th century in Prague and spent the first years of his career in Vienna. The conservative atmosphere in Austria during the first decades of the 20th century made him leave the country. When the Second World War broke out, he left Europe.

Source: By AnonymousUnknown author (http://www.aeiou.at/aeiou.encyclop.k/k283648.htm), via Wikimedia Commons

The Pyramid created by this jurist tries to represent the way in which the legal norms are related. The reason for choosing a pyramid as a figure is due to the existence of several hierarchies in the laws, without the ones below being able to contradict the higher ones.

Countries like Mexico, Spain, Colombia, Chile or Argentina agree that the top of the Pyramid is occupied by their respective constitutions. At the lower echelons, each country has an organization with slight variations.

Structure

The first definition of the Pyramid of Kelsen was written precisely by its creator. Hans Kelsen, a jurist and university professor of philosophy in Vienna, described it as the most appropriate way to represent the relationship between different legal norms.

Pyramid

Kelsen's reason for choosing a Pyramid as a graphic representation is that it allowed him to order hierarchically the different legal norms existing in a society. In this way, he could arrange the different laws in an orderly fashion, starting with the most important and continuing with the others.

The usual thing in current societies is that at the top of the Pyramid is the constitution promulgated in the country. From this derive all the other laws that will be placed in the lower links.

As you go down the Pyramid, its width is increasing. This indicates that there are many more laws with a lower rank than a higher one. The logic, according to legal experts, indicates that there can only be one Constitution but, instead, many more legal norms of another type are promulgated.

Ultimately, Kelsen tried to reflect the idea of ​​validity of any law within the system. Furthermore, the Pyramid shows graphically that no law can contradict the norms above it.

In Mexico

The Mexican legal system shows the structure of its Kelsen Pyramid in article 133 of its Constitution:

«This Constitution, the laws of the Congress of the Union that emanate from it and all the Treaties that are in accordance with it, celebrated and that are celebrated by the President of the Republic, with approval of the Senate, will be the Supreme Law of all the Union. The judges of each State shall abide by said Constitution, laws and treaties, despite the provisions to the contrary that may exist in the Constitutions or laws of the States.

Constitution

The Political Constitution of the United Mexican States is at the top of the Kelsen Pyramid in that country. It consists of three fundamental parts: a Preamble, the Dogmatic and the Organic parts. Each of them deals with different normative fields.

As is the case in most countries, at the top of the Pyramid are also the International Treaties on Human Rights that Mexico has signed.

Federal Laws

Being a Federal State, Mexico has a specific scale in the Pyramid to regulate the different territories. Thus, in this federal legal order are the so-called Formal Laws, such as State Constitutions, State Laws, Organic Laws or Official Norms.

Likewise, other International Treaties not related to Human Rights also appear in this step.

Local laws

Within the Local Laws, all the regulations related to the powers of the Municipalities appear. These have a series of competences on which they can legislate, having the rank of formal law.

As the Pyramid of Kelsen reflects, these regulations can never contravene any law found in the higher levels, but must comply with what is established by them.

Other levels

Apart from the levels previously described, in Mexico the Pyramid is completed with other types of lower-ranking regulations.

As an example, we can point out the Regulations, which are provisions of a legislative nature. At this level are the Federal Education or Labor Law.

Another of the regulations that appears in these lower levels is the Individualized Legal Standard. They are specific legal actions, such as wills or contracts.

In colombia

The Kelsen Pyramid in Colombia has at its top the National Constitution. Later, they find the Laws that Congress enacts fulfilling their duties as a legislator. In the third level are the Decrees issued by the President of the Republic.

National Constitution

The Constitution is the basis of the Colombian Rule of Law. The rest of the laws emanate from it, in addition to being the organizational source of the institutions and the country. That is the reason why constitutions are sometimes known as the Law of Laws.

In Colombia, the National Constitution establishes the different rights of citizens, which have a special legal guarantee

Laws Congress

Congress has the power to draft and pass a series of laws. The first are the Organic Laws, designed to order the functions of the Congress itself. This is a common way of controlling the activity of the Chamber so that there are no excesses.

Likewise, organic laws also regulate the powers of territorial entities, as well as those used to prepare the budget.

Another type of norms emitted by the Congress are the Statutory ones. They are special laws that legislate on fundamental rights and duties, the administration of justice, the organization of political parties and on electoral functions. Apart from this, they are also used to declare States of Exception.

Other levels

The next step of the Pyramid is occupied by the Presidential Decrees. These have the force of law, although they can never contradict higher regulations in rank.

The different Codes (Civil, Criminal, Commercial, etc.) are at a lower level and are usually compendiums of laws applied to specific matters.

Municipalities can also issue ordinances, which would be below the aforementioned codes.

Finally, at the base of the Pyramid are placed the sentences of the Magistrates and Judges, as well as lower-ranking laws.

In Argentina

The Argentine legal and legislative system can also be represented with the Kelsen Pyramid. In it, the different laws existing in the country are hierarchically ordered, reflecting their importance and which body developed them.

Constitution

The National Constitution occupies the top of the Pyramid. It is the fundamental norm of the nation, regulating the political and legal system of all states.

The Argentine Magna Carta contains the limits established for the rulers, as well as the duration of the legislatures. It also establishes the legal ways to modify it.

The country's law of laws was drawn up in 1853. Since then it has been modified on five occasions, adapting it to new historical circumstances.

International deals

Argentina, like the rest of the countries, has signed a series of International Treaties that it has incorporated into its legal system. In this case, the agreements are located in the second level of the Pyramid.

Other levels

Below the regulations mentioned above are another series of laws that complete the Pyramid in Argentina.

First, there are the laws enacted as a consequence of the Constitution itself. With a lower rank are the Laws of the National Congress, the Provincial Constitutions and the Interprovincial Treaties.

Descending in the legislative scale appear the Decrees of the National Executive Power, the Provincial Laws and the Resolutions issued by the Ministers.

In the last three levels are located, in the first place, the Decrees of the Executive and Provincial Power; second, the Municipal Ordinances; and finally, Conventions between individuals and Judicial Decisions.

In Spain

The Spanish Civil Code reflects in its regulations that "provisions that contradict other higher-ranking provisions will be invalid." This implies that it is mandatory to establish a hierarchy between the different existing regulations, which is equivalent to the Pyramid of Kelsen.

Constitution

The Spanish Constitution is the highest standard within the country's legal system. Its articles regulate the interrelation of the rest of the rules, as well as the functioning of the institutions.

It was approved in 1978 and proclaims that Spain is a Regulatory Monarchy. In the same way, it regulates the functioning of the Autonomous Communities, the Parliamentary Chambers and the justice system, among other matters.

International deals

The next level is occupied by the different International Treaties. Being part of a supranational body such as the European Union, its legal regulations are also included.

Membership of the EU has led to a special case compared to countries on other continents. Thus, the latest constitutional reforms have been mandatory adaptations to the Union guidelines.

Laws of the Courts

With a lower rank than the previous ones are the laws promulgated by the legislative Chambers: the Parliament and the Senate.

The laws that can be elaborated by the Cortes are of two types: the Organic and the Ordinary.

With a similar importance to the previous ones are the Royal Decrees Law and the Royal Legislative Decrees. These are enacted by the government and not by Parliament.

Autonomous communities

To facilitate inclusion in the Pyramid, the experts place the laws and regulations of the Autonomous Communities at the bottom of the hierarchy. Despite this, the relationship between these regional and state standards may vary depending on the competencies that each recognized Community has.

In Chile

Chile has established itself as a presidential Republic, which is reflected in its most important legislative text: the Constitution. As it has a decentralized territorial structure, its Kelsen Pyramid includes some of the regulations issued by regional governments.

Constitution

The so-called Fundamental Charter is located at the apex of the Chilean normative Pyramid. It includes the legal system and is the basis of the country's institutions. The rest of the laws cannot contravene what is stated in this Constitution.

Within the articles included in the text, the territorial organization of the state is established, its definition as a republic, the presidential functions and the rest of the fundamental regulations for the country.

Constitutional Reform Laws

The second level of the Pyramid is made up of the Constitutional Reform Laws. These are divided between those whose function is to reform the rights and duties contained in the constitution and those that interpret what is contained in the Magna Carta.

Constitutional Organic Laws

These types of laws act on the regulations explicitly stated in the constitutional text. As an example, there are those that regulate the electoral system, education in the country or how the Justice and its courts are organized.

In a similar range appear the Laws of Qualified Quorum. Their main characteristic is that they need an absolute majority in Parliament to be approved.

Ordinary Laws and Decrees with Force of Law

The Ordinary Laws are located at the next level of legal importance. They are those regulations that are not included within the Organic and that serve to regulate social aspects, such as the General Law on accidents and occupational diseases.

For their part, Decrees with Force of Law are issued directly by the President of the Republic.

Other lower-ranking levels

There are still several types of laws with a lower legal status than the previous ones. The Decree Law (DL) stands out for its use, in which the legislative power does not intervene, being the power of the executive (government).

Another type of decree is the Supreme Decree, promulgated by an authority on aspects of its competence. It is, for example, the type of regulation that the Ministry of Health issues to regulate Public health matters.

Regarding the Penal and Civil Code, the legislative branch is in charge of approving the Legal Norms to impose duties and rights, as well as the sanctions for non-compliance.

Already at the base of the Pyramid there are a series of Regulations, Circulars and Resolutions, each with a scope determined by its characteristics. Being in the lower range, none of these regulations can contradict those at the higher levels.

References

1. Venemedia Communications. Definition of Kelsen's Pyramid. Obtained from conceptdefinition.de
2. López López, Isabela Guadalupe. The rule of law. Recovered from sc.jalisco.gob.mx
3. Rosales Law Firm. The hierarchy of legal norms in Spain. Obtained from bufeterosales.es
4. Wahab, Abdul. Kelsen's Theory of Law. Retrieved from wahabohidlegalaid.blogspot.com
5. Cours de Droit. Pyramide de Kelsen et hiérarchie des normes. Retrieved from cours-de-droit.net
6. Marmor, Andrei. The Pure Theory of Law. Recovered from plato.stanford.edu