The story goes that Baron Münchhausen, a fantastical 18th century German nobleman-prevaricator, landed in the midst of a bog while on a trip on horseback to his friend’s estate. It is said the baron, even though he was dulled with fatigue, responded to the emergency by pulling himself and his horse straight out of the bog by his own pigtail.
Hans Albert, in his Treatise on Critical Reason, coined the term ‘Münchhausen trilemma’ as a thought experiment to demonstrate that, without appealing to assumptions, it is theoretically impossible to prove any truth or its validity, especially within the realms of logic and mathematics. According to Albert, no knowledge can be definitively proven as any argument or proof presented to support a proposition can be challenged by asking additional questions that raise doubts about each proof.
Ultimately, we find ourselves in a position where each proof necessitates another, or in a logical circularity in which the proof of a proposition relies on the truth of the same proposition or on accepted precepts that are asserted rather than supported. If the trilemma is valid, then no statement, knowledge or truth can be validly proven. Each of the three options, as is evident, frustrates the possibility of establishing any definite foundation, leaving us mired down in uncertainty and, much like the baron, having to pull ourselves out of the bog with our own pigtails.
In law, legal validity is determined by whether or not a law was made in the proper manner by an authorised organ of the state. But what criteria must be met for an organ to be deemed authorised? And what defines a manner as being proper? Without appealing to assumptions, an enquiry into this would inevitably result in an endless chain of justifications. In order to disrupt this chain, we are faced with an unavoidable Münchhausen trilemma.
Countries, by resorting to a variant of one of the three options or a mix of them, not only seek to justify their own authority and their legal systems but also the validity of the laws they make. For instance, the community law of European legal systems traces its roots to ancient Roman laws (collated in Justinian’s Corpus Juris Civilis) and cannon law of the Catholic church. Nevertheless, it is important to note these do not provide an unending sequence of justifications, as the sequence only extends until the time of the Roman republic.
Many countries have sought to justify the validity of their legal systems on an accepted truth or precept. Countries such as India, Bangladesh and Uganda have justified their systems on the basis of certain foundational principles of their constitutions they accept as axioms or grundnorm, which Hans Kelson claimed as being the highest-ranking presupposed norm.
For example, Indian law is valid because it derives its validity from the Indian Constitution. But as to the question from where a constitution derives its validity, there is no answer, the same as a grundnorm. This is, however, not to say our Constitution incorporates an underlying semantic assumption about the nature of legal norms. Rather, the understanding is the Constitution provides certain fundamental rules that cannot be trampled on.
Curiously, in Pakistan, the grundnorm is considered to be Islam, meaning the validity of its Constitution is derived from Sharia. The UK and Singapore, on the other hand, partly rely on the Diceyan formulation of parliamentary sovereignty and the Hartian rule of recognition, which is a social rule that differentiates between those norms that have the authority of law and those that do not. That apart, legal sociologists have sought to contend the validity of law is due to ability to maintain itself, thereby resorting to logical circularity.
The Basic Structure doctrine, developed by our Supreme Court in a series of cases in the 1960s and 1970s, is a legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. In the famous Kesavananda Bharati case, the SC propounded the doctrine, holding that certain fundamental features of the Constitution—such as democracy, secularism, federalism and the rule of law—could not be amended. Over the years, the court has confined the doctrine to encompass only those standards that are cognates of the grundnorm, that is, the Indian Constitution.
In M Nagaraj vs Union of India, the court, while refusing to accord principles relating to service law the status of constitutional norm, observed the “source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism and sovereignty”. In other words, there’s a judicially accepted conception that the Constitution possesses an intrinsic quality providing resistance to change beyond specific boundaries. The doctrine broadly advocates that there exists underlying moral principles that are independent and intended to be represented by the Constitution’s text.
Since its introduction, the Basic Structure doctrine has often been criticised as illegitimate. One of the primary criticisms asserts that it lacks justification within the constitutional text. These critics claim the Constitution itself can be changed to suit the times. The judges, according to them, openly adopted a political stance and there is nothing inherent in the Constitution that resists change. However, having been constructed in the context of the broader constitutional mandate, the doctrine has stood the test of time, proving it is stronger than the Baron’s pigtail.
Saai Sudharsan Sathiyamoorthy
Advocate, Madras High Court
(Views are personal)
(saaisudharsans@gmail.com)