DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

KELSEN’S THEORY OF GRUND NORM

SUBJECT

JURISPRUDENCE

NAME OF THE FACULTY

ARAVIND NATH TRIPATHI

Name of the Candidate

D.SUMANTH

Roll No.
2018LLB120

SEMESTER 3

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher ARAVIND NATH

TRIPATHI sir who gave me the golden opportunity to do this wonderful project on the
topic of (KELSEN’S THEORY OF GRUND NORM) which also helped me in doing a
lot of Research and I came to know about so many new things I am really thankful to
them.
Secondly I would also like to thank my friends who helped me a lot in finalizing this
project within the limited time frame.

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TABLE OF CONTENTS :-

INTRODUCTION…………………………………………………………..1
BASIC NORM………………………………………………………………3
KELSEN’S LEGAL ORDER……………………………………………….5
THE BASIC NORM UPON A REVOLUTION……………………………8
KELSEN’S PURE THEORY OF LAW…………………………………….10
SALIENT FEATURES OF KELSEN’S PURE THEORY OF LAW………12
KELSEN’S THEORY OF GRUND NORM…………………………………..15
BASIC NORM AS TRANSCENDENTAL - LOGICAL PRESUPPOSITION….16

THE PRINCIPLE OF EFFECTIVENESS………………………………………. 18

VALIDATION OF NORMS……………………………………………………….20

CONCLUSION………………………………………………………………………22

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INTRODUCTION :-
HANS KELSEN :-

Hans Kelsen (1973) was an Austrian jurist, legal philosopher and political philosopher
belonging to Legal Positivism school of thought. Roscoe Pound lauded Kelsen as “undoubtedly
the leading jurist of the time.” Kelsen is considered one of the pre-eminent jurists of the 20th
century and has been highly influential among scholars of jurisprudence and public law,
especially in Europe and Latin America although less so in common-law countries. Kelsen was
the most influential legal philosopher of the last century. He received 11 honorary doctorates
and innumerable awards from all corners of the world. His book titled “The Pure Theory of
Law” was published in two editions, one in Europe in 1934, and a second expanded edition
after he had joined the faculty at the University of California at Berkeley in 1960.

BASIC NORM :-

Basic norm (Grundnorm) is a concept in the Pure Theory of Law created by Hans Kelsen, a
jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that
forms an underlying basis for a legal system. The theory is based on a need to find a point of
origin for all law, on which basic law and the constitution can gain their legitimacy (a kin to
the concept of first principles). This "basic norm", however, is often ascribed as hypothetical.
The reception of the term has fallen into three broad areas of discernment including

(i) Kelsen's original introduction of the term,

(ii) the Neo-Kantian reception of the term by Kelsen's critics and followers, and (iii)
the hypothetical and symbolic use of the term through the history of its application. 1

Under Kelsen’s Pure Theory of Law, a legal order is essentially a system of norms and all other
norms within any such system draw their validity from a supreme norm called the basic norm
or grundnorm. Upon a successful revolution or coup d’état, a new basic norm is substituted for
the previously existing basic norm. 2 The fact of collective and habitual obedience by the
citizenry to the new authority and its ability to make valid additions and changes to other norms
within the legal order show the emergence of this new grundnorm. The basis of validity then
of all norms that are left untouched within the new legal order are thus rooted in the new
grundnorm created on the attainment of general efficacy of the legal order as a whole. Article

1
Bix,Brian, Jurisprudence: Theory and Context , 1st Edition, Westview Press, Colorado, America 1996, p.55
2
S.R. Myneni , Jurisprudence (Legal Theory) , 2nd edition, Asia Law House , Hyderabad, 2010, p.450

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3 of the 1992 Constitution criminalises acts leading to the suspension, overthrow or abrogation
of that Constitution by any violent or other unlawful means as high treason. It further enjoins
all citizens of Ghana to do all in their power to restore the Constitution after it has been
suspended, overthrown or abrogated. It would seem from the foregoing therefore that the
framers of the Constitution envisaged the continuing validity of the Constitution as the
grundnorm even through a period of effective revolution which replaces this Constitution
in blatant disregard to Kelsen’s Pure Theory. Some would argue therefore that in the
punishment of high treason upon restoration of the previously suspended Constitution,
Kelsen’s Pure Theory would have no role whatsoever in a prosecutor’s arguments. This
however cannot be so. This article would show that Kelsen’s Theory can be used by a
prosecutor to still give validity to the punishment of high treason by a consideration of what
is law in 3 time frames viz. the pre-revolutionary period, the period of the revolution and the
subsequent restoration/reinstatement period. This proposition avoids the needless and
debatable concept of the continuing validity of the old constitution after a revolution.

KELSEN’S LEGAL ORDER :-

Generally, Kelsen’s normativism posits that the law or legal order is a system of legal norms;
that these legal norms are all traceable to a basic norm3. It is the traceability of these individual
legal norms to this basic norm that imparts validity to the former. This validity is proven by
showing that the particular norms have been created in accordance with the basic norm/
grundnorm. The norms within Kelsen’s conception of a legal order are thus not necessarily
of co-ordinate status. They are however interconnected and together draw their validity from
the basic norm. We may thus picture the legal order as a hierarchy with the basic norm sitting
atop the system imparting validity to all the individual legal norms. In our Ghanaian context
we may consider the basic norm to be the 1992 Constitution as it represents the highest level
of positive law. Every law or legal action must conform to the 1992 Constitution for it to
remain valid. Here the Constitution is considered in its material sense. But as Kelsen’s Pure
Theory explains, it is not the material Constitution that is itself the grundnorm. It is the
presupposition of its validity that constitutes it as the grundnorm7. This presupposition allows
us to distinguish what persons have the authority to create new norms, in what ways binding
norms may be created and also by what means the validity of norms shall be measured. Here
is how Kelsen himself presents the argument: “.if we ask why a particular act of

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3
compulsion the fact, for instance, that one man has denied another of his freedom by
imprisoning him ─ is an act of law and belongs to a particular legal order, the answer is, that
this act was prescribed by a certain individual norm, a judicial decision. If we ask further, why
this individual norm is valid, the answer is that it was constituted according to the penal statute
book.

If we enquire as to the validity of the penal statute book, we are confronted by the
State’s
Constitution, which has prescribed rules and procedure for the creation of the penal statute
book by a competent authority. If we further ask as to the validity of the constitution on which
repose all the laws and act which they have sanctioned, we come probably to a still older
constitutional and finally to an historically original one, set up by some single usurper or by
some kind of corporate body. It is the fundamental presupposition of our recognition
founded on this constitution that that which the original authors declared to be their will should
be regarded as valid norm.

It is easy to see how Kelsen’s concept of law as a coercive order9 can be built on the above
examination of his normative order. Thus the basic norm within our legal order may
be considered to be the 1992 Constitution because there exists a collective recognition
of its position as the highest level of positive law to which all other individual norms must
conform. The presupposition of validity of the constitution as a foremost ‘regulating’ norm
built on that collective recognition is however what truly represents the Kelsenian grundnorm;
because the basic norm is not a positive legal norm. A positive legal norm is valid because it is
created in a certain way by a legal act, but the basic norm is valid only “because it is
presupposed to be valid; and it is presupposed to be valid because without this presupposition,
no human act could be interpreted as a legal, especially as a norm-creating act”10. We
see thus, the fundamental importance of the basic norm to Kelsen’s Pure Theory construct. It
confers norm-creating power by which the whole legal order is itself constructed and the
elements therein renewed or changed.

3
R.W.M. Dias, Dias Jurisprudence 5th Edition, Aditya Books Private Limited, New Delhi, 1994, p.362

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THE BASIC NORM UPON A REVOLUTION :-

Kelsen’s basic norm, and its relation to all other individual legal norms, assumes an interesting
position in relation to the phenomenon of revolutions. Kelsen contends that where a group of
individuals successfully seize power by force and are thus able to remove the hitherto
legitimate government, the old legal order ceases and is replaced with a new order. The
substitution of the crime of the treason.

KELSEN’S PURE THEORY OF LAW :-

In the third paragraph of the opening chapter of his book, Kelsen himself gives the
reason for calling his theory as “Pure”. He writes: It is called a ‘pure’ theory of law, because it
only describes the law and attempts to eliminate from the object of this description everything
that is not strictly law; Its aim is to free the science of law from alien elements. This isthe
methodological basis of the theory.

Definition of Law :-

Kelsen defined ‘law’ in following two headings.

 Law: An Order of Human Behaviour. When we compare the objects that have been
designated by the word “law” by different peoples at different times, we see that all
these objects turn out foreorders of human behaviour
 Law: A Coercive Order: A second characteristic is that they are coercive orders. This
means that they react against certain events, regarded as undesirable because
detrimental to society, especially against human behaviour of this kind, with a coercive
act; that is to say, by inflicting on the responsible individual an evil such as deprivation
of life, health, liberty or economic values which if necessary, is imposed upon the
affected individual even against his will by the employment of physical force.”
 In simple words, we can say that ‘law’ according to Kelsen is: Orders of human
behaviour that react against certain events, regarded as detrimental against such orders
of human behaviour, with a coercive act.4

4
Yuvaraja Sangroula, Jurisprudence and Legal Theory,6th edition, Kathmandu School of Law, Bhaktapur,2066,
p.334

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SALIENT FEATURES OF KELSEN’S PURE THEORY OF LAW :

1. Law as Science : Kelsen tried to present a theory that could be attempted to convert
law into a science, a theory that could be understood through logic.
2. As a Positive Law : In the first paragraph of Pure Theory of Law , Kelsen introduces
his theory as being a theory of positive law. This theory of positive law is then presented
by Kelsen as forming a hierarchy of laws which start from a Basic Norm, i.e.
‘Grundnorm’ where all other norms are related to each other by either being inferior
norms.
3. Law “As it is”: Kelsen emphasized that analysis must focus on law as it is actually laid
down, and not as it ought to be
4. Law Contains set of Rules : Kelsen emphasized that the Law contains mass of rules,
and a theory should organize them in an ordered pattern.
5. Law and Morality : Kelsen's strict separation of law and morality, is an integral part
of his presentation of the Pure Theory of Law. The application of the law, in order to
be protected from moral influence or political influence, needed to be safeguarded by
its separation from the sphere of conventional moral influence or political influence.
Kelsen did not deny that moral discussion was still possible and even to be encourage
in the sociological domain of inter-subjective activity. However, the Pure Theory of
Law was not to be subject to such influences.
6. Theory of Law should be Uniform : According to Kelsen, the theory of law should be
applicable at all times and all places.
7. Law is ‘Ought’ Proposition : A norm is a proposition or an if statement: “If A happens,
then B is ought to happen.” Thus: “If someone commits a theft, the judge ought to
punish him.” A legal system is composed of series of such norms. 5

5
Constitution of Nepal, 2072, article 1

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KELSEN’S THEORY OF GRUND NORM :-
INTRODUCTION :-

Hans Kelsen (1881-1973) Austrian jurist and philosopher of law. Kelsen is known for the most
rigorous development of a 'positivist' theory of law, i.e. one that rigorously excludes from its
analysis any ethical, political, or historical considerations, and finds the essence of the legal
order in the 'black letter' or laid-down law. A system of law is based on a Grund norm or ground
rule, from which flows the validity of other statements of law in the system. The ground rule
might be that some particular dictates or propositions, such as those of the sovereign, are to be
obeyed. The Grund norm can only be changed by political revolution. The theory is best known
in its development in the Allgemeine Staatslehre (1925, trs. and revised as General Theory of
Law and State, 1945).6

The theory of Hans Kelsen represents development in two directions. On one hand, it marks
the most defined development to date of analytical positivism; on the other hand, it marks a
reaction against the welter of different approaches that characterized the opening of the
twentieth century. The most important feature of Kelsen's theory is grund norm.

BASIC CORE OF KELSEN’S THEORY OF GRUND NORM :-

The law according to Kelsen is a system of norms. He maintained that legal norms are created
by acts of will or in other words, products of deliberate human action, as opposed to moral
norms which is by God. In relation to this, the pure law theory takes only into consideration
only the norms created by the acts of human beings, not norms which come from other
superhuman authorities. Central to the Pure Theory of Law is the notion of a “basic norm” –
The Grundnorm — a hypothetical norm, presupposed by the jurist, from which in a hierarchy
all ‘lower’ norms in a legal system, beginning with constitutional law, are understood to derive
their authority or ‘bindingness’. In this way, Kelsen contends, the bindingness of legal norms,
their specifically ‘legal’ character, can be best understood without tracing it ultimately to some
superhuman source such as God, personified Nature or — of great importance in his time — a
personified State or Nation.

6
General Theory of Law and State, 1945

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GRUNDNORM :-

Norms are regulations setting forth how persons are to behave and positive law is thus a
normative order regulating human conduct in a specific way. A norm is an "ought proposition;
it expresses not what is, or must be, but ought to be, given in certain conditions

1. Its existence can only mean its validity, and this refers to its connection with a system
of norms which it forms a part.
2. Frequently Kelsen remarks on the 'most significant peculiarity of law that regulates its
own creation. That is, the creation of legal norms is authorised by other legal norms.

The decision of a judge creating a norm governing the circumstances, to which the decision
relates, is authorised by the norms defining the court's jurisdiction. Those norms may be
expressed in a statute, the enactment of which was authorised by other, more fundamental
norms defining the proper procedures for legislations. They may be contained in a constitution,
itself established on the authority of the norms contained in an earlier constitution. Thus,
'higher' norms authorise the creation of lower ones in various ways, indicating who can create
them in what circumstances and within what limits.7

Basic norm of a positive legal system is simply the basic rule according to which norms of the
legal system are created; it is simply the setting into place of the basic material fact of law
creation.'

In an effort to use Hegelian philosophy in study of jurisprudence, Kelsen tried to develop

Grundnorm. Hegelian philosophy wanted to place all cultures in a grand overarching
philosophy of history according to the principle of freedom, Kelsen wants to identify a basic
legal principle which will ultimately include or define the legal structures of all cultures.
According to Kelsen the Grundnorm or Basic Norm is a statement from which all other duty
statements ultimately get their validity from.

Going up the chain of validity, or hierarchy, of law, on order to find its root of title, we must
come to a finishing point, says Kelsen. If we were to continue this process, then we would
never be able to establish the validity of any norm, because we would have to go till infinity.

7
Dhyana, S.N., Jurisprudence and Indian Legal Theory, 3rd Edition, Central Law Agency,1999

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But, since, we can in fact, establish the validity of legal norm, then we must be able to get back
to some ultimate norm which confers validity upon all other norms. This norm, for it must be
a norm of course(because only norms can confer validity on other norms), Kelsen calls the
grund norm or the 'basic norm'.

Basic norm or the grund norm is a concept created by Hans Kelsen, a jurist and legal
philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an
underlying basis for a legal system.

For Austin, law is a command backed by a sanction. However, Kelsen disagreed in two
respects. Firstly, he rejected the idea of command, because it introduces a psychological
element into a theory of law, which should, in his view, be 'pure'.

Secondly, to Austin the sanction was something outside a law imparting validity to it. To
Kelsen such a statement is inadequate and confused. For the operation of the sanction
supporting a rule revolves itself into the operation of other rules; and further, the validity of a
rule has nothing to do with its sanctions.

To Kelsen, the operation of the sanction itself depends on the operation of other rules of law.
In this way, the contrast between law and sanction in the Austinian sense disappears.

The validity of a norm is ascertained with reference to its authorising norm, which confers a
power to create it and may also specify conditions for its exercise. A particular norm, therefore
is authorized if it can be subsumed under a more general norm.

The conjecture which this opens up is the end of progression. Kelsen's solution was that in
every legal order, no matter with what proposition one may begin, a hierarchy of ought is
traceable back to some initial, fundamental ought on which the validity of all others ultimately
rests. This he called the grund norm, the basic or fundamental norm.

In this way, Kelsen's picture of a legal order emerges, not just as a collection of oughts, but a
hierarchy depending downwards form a grundnorm, or branching upwards from it, whichever
way one chooses to depict it.

Kelsen recognized that the grundnorm need not be the same in every legal order, but a grund
norm of some kind will always be there, whether, eg a written constitution or the will of a

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dictator. The grundnorm in not the constitution, it is simply the pre supposition, demanded by
theory that this constitution ought to be obeyed.8

Therefore, the grundnorm is always adapted to the prevailing state of affairs. The grundnorm
only imparts validity to the constitution and all other norms derived from it, it does not dictate
their content.

The difference between his positivism and natural law theory is that the latter determines the
content as well. there is no reason why there need only be one grundnorm, nor has it to be a
written constitution.

BASIC NORM AS TRANSCENDENTAL - LOGICAL PRESUPPOSITION

Kelsen's conceptualism require no such search for the ultimate legal rule in each actually
existing legal system, providing validity for all other rules in the system. Kelsen portrays a
basic norm which gives validity to all legal rules. But, this is, as with all the concepts of pure
theory, deliberately created as a theoretical idea ( not found in experience) for a specific
theoretical purpose.

The purpose of Kelsen's basic norm is to portray the unity of the legal system, the fact that all
its norms trace validity from a single source and must do so if they are to be considered part of
the same legal system. Thus, if the sequence os the authorization of the norms id traced back
from a court's decision, through the statutory norms providing jurisdiction, through the
constitutional norms authorizing the enactment of the statute, to the original constitution, the
pure theory of law deliberately postulates a further single norm 'standing behind' and giving
validity to the original constitution.

To understand the nature of the basic norm, it must be kept in mind that it refers directly to a
specific constitution, actually established by custom or statutory creation, by and large
effective, and directly to the coercive order created according to this constitution and by and
large effective; the basic norms thereby furnishes the reason for the validity of this constitution
and of coercive order created in accordance with it. The basic norm, therefore is not a product
of free invention.

8
Dhyana, S.N., Jurisprudence and Indian Legal Theory, 3rd Edition, Central Law Agency,1999

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It is not presupposed arbitrarily in the sense that there is a choice between basic norms when
the subjective meaning of a constitution creating act and the acts created according to this
constitution are interpreted as their objective meaning.

Only if this basic norm, referring to a specific constitution, is presupposed, that is, only if it is
presupposed that one ought to behave according to this specific constitution - only then can the
subjective meaning of the constitution-creating the interpreted as their objective meaning, that
is, as objectively valid legal norms, and the relationships established by these norms as legal
relations.

THE PRINCIPLE OF EFFECTIVENESS

Kelsen's distinction between validity and effectiveness has only been touched upon. Every
norm other than the grundnorm is valid, not because it is, or is likely to be, obeyed by those to
whom itis addressed, but by virtue of another norm imparting validity to it. Thus, a norm is
valid before itis effective, as with the case of a new statute before it has been applied. Yet, the
validity of each norm depends on the effectiveness of the legal order as a whole.

If we attempt to make explicit the presupposition on which these juristic considerations rest,
we find that the norms of the old order are regarded as devoid of validity because the old
constitution and, therefore, the legal norms based on this constitution, the old legal order as a
whole, has lost its efficacy; because the actual behaviour of men does no longer confirm to this
old legal order. Every single norm losses its validity when the total legal order to which it
belongs loses its efficacy as a whole.

The efficacy of the whole legal order is a necessary legal condition for the validity of every
single norm of the order. The efficacy of the total legal order is a condition, but not the reason
for the validity of its constituent norms. These norms are valid not because the total order is
efficacious, but because they are created in a constitutional way.

They are valid however on the condition that the total order is efficacious; they cease to be
valid, not only when that are annulled in a constitutional way, but also when the total order
ceases to be efficacious.

It cannot be maintained that, legally, men have to behave in conformity with a certain norm, if
the total legal order, of which that norm is an integral part, has lost its efficacy. The principle
of legitimacy is restricted by the principle of effectiveness.

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He later on modified this somewhat to the extent of saying that the legal order has to be 'by and
large' effective.

It will therefore be seen that, with reference to a given norm, its validity and its effectiveness
have to be kept separate. Effectiveness of the order as a whole is a condition, not a reason for
the validity of the grundnorm and of any individual norm: 'a condition sine qua non, but not a
condition per quem.

THE SPECIFIC FUNCTION OF BASIC NORM :-

That the norm of the kind just mentioned is the basic norm of the national legal order does not
imply that it is impossible to go beyond that norm. Certainly, one may ask why one has to
respect the first constitution as a binding norm. The answer might be that the fathers of the first
constitution were empowered by God. The characteristic of so called legal positivism is,
however, it dispenses with any such justification of legal order. The ultimate hypothesis of
positivism is the norm authorizing the historically first legislator. The whole function of this
basic norm is to confer law- creating power on the act of the first legislator and on all the other
acts based on the first act. To interpret these acts of human beings as legal acts and their
products as binding norms, and that means to interpret the empirical material which presents
itself as law s such, is possible only on the condition that the basic norm is presupposed as a
valid norm. The basic norm is only the presupposition of any positivistic interpretation of the
legal material.

VALIDATION OF NORMS :-

According to Kelsen, there must be some Norm, that validates all other norms, and such Norm
is to be called as the Grundnorm. He insisted that the grundnorm need not to be same in every
legal system, but some grundnorm will always be there, whether it’s the constitution or the will
of dictator. He further argued that there could be more than one grundnorm, like in Britain,
there are three grundnorms: statute, precedent and custom. But, the requirement for having
more than one grundnorms is that they must not be in conflict with each other.

Meaning and Validation of the Grundnorm

1. “Assumed” Validity of the Grundnorm

According to Kelsen the validity of the grundnorm is not based upon some other norm
behind it, rather its validity is to be ‘assumed’. Thus, one cannot point at some other
norm in order to declare the grundnorm as valid.

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 2. Abidance – A Condition Kelsen insisted that certain number of people obeying the law
is not the reason for the validity of the grundnorm. Rather, certain number of people
obeying the law is a condition for the validity of the grundnorm, and thus of other norms
of the system. According to him, a universal adherence is not necessary, rather, all that
is necessary is a minimum adherence.

Altering the Grundnorm Kelsen argued that when a grundnorm ceases to attract minimum
adherence, it ceases to act as a grundnorm; basis of the legal order, and any other proposition
which does receive support will replace it. Such a change is called Revolution in Law.

Sphere of Validity of the Norms

Since norms regulate human behaviour, and human behaviour takes place in time and space,
norms are valid for certain time and for certain place. The validity of a norm may begin at one
moment and end at another. The norms of Czechoslovakian law began to be valid on a certain
day of 1019, while the norms of Austrian law ceased to be valid on the day when Austrian
Republic had been incorporated into the German Reich in1938. The validity of a norm has also
a relation to space. In order to be valid at all, it must be valid, not only for a certain time, but
also for a certain territory. The norms of French law are valid only in France, the norms of
Pakistani law are valid only in Pakistan. Among the four spheres of validity of a norm, the
personal and the material spheres are prior to the territorial and temporal spheres. The latter
two are only the territory within which, and the time during which, the individual shall observe
certain conduct. A norm can determine time and space only in relation to human behaviour. To
say that a norm is valid for a given territory is to say that it concerns human behavior that
occurs within that territory. To say that a norm is valid for a certain time, it refers to human
behaviour that occurs during that time. Any territory in which and any time during which
human behaviour occurs may from the territorial and temporal spheres of validity of norms.
Norms are regulations setting forth how persons are to behave and positive law is thus a
normative order regulating human conduct in a specific way. A norm is an "ought proposition;
it expresses not what is, or must be, but ought to be, given in certain conditions 9

1. Its existence can only mean its validity, and this refers to its connection with a system
of norms which it forms a part.

9
Dhyana, S.N., Jurisprudence and Indian Legal Theory, 3rd Edition, Central Law Agency,1999

15 | P a g e
 2. Frequently Kelsen remarks on the 'most significant peculiarity of law that regulates its
own creation. That is, the creation of legal norms is authorised by other legal norms.

The decision of a judge creating a norm governing the circumstances, to which the decision
relates, is authorised by the norms defining the court's jurisdiction. Those norms may be
expressed in a statute, the enactment of which was authorised by other, more fundamental
norms defining the proper procedures for legislations. They may be contained in a constitution,
itself established on the authority of the norms contained in an earlier constitution. Thus,
'higher' norms authorise the creation of lower ones in various ways, indicating who can create
them in what circumstances and within what limits.

Basic norm of a positive legal system is simply the basic rule according to which norms of the
legal system are created; it is simply the setting into place of the basic material fact of law
creation.'

In an effort to use Hegelian philosophy in study of jurisprudence, Kelsen tried to develop

Grundnorm. Hegelian philosophy wanted to place all cultures in a grand overarching
philosophy of history according to the principle of freedom, Kelsen wants to identify a basic
legal principle which will ultimately include or define the legal structures of all cultures.
According to Kelsen the Grundnorm or Basic Norm is a statement from which all other duty
statements ultimately get their validity from.

Going up the chain of validity, or hierarchy, of law, on order to find its root of title, we must
come to a finishing point, says Kelsen. If we were to continue this process, then we would
never be able to establish the validity of any norm, because we would have to go till infinity.

But, since, we can in fact, establish the validity of legal norm, then we must be able to get back
to some ultimate norm which confers validity upon all other norms. This norm, for it must be
a norm of course(because only norms can confer validity on other norms), Kelsen calls the
grund norm or the 'basic norm'.

Basic norm or the grund norm is a concept created by Hans Kelsen, a jurist and legal
philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an
underlying basis for a legal system.

For Austin, law is a command backed by a sanction. However, Kelsen disagreed in two
respects. Firstly, he rejected the idea of command, because it introduces a psychological
element into a theory of law, which should, in his view, be 'pure'.

16 | P a g e
Secondly, to Austin the sanction was something outside a law imparting validity to it. To
Kelsen such a statement is inadequate and confused. For the operation of the sanction
supporting a rule revolves itself into the operation of other rules; and further, the validity of a
rule has nothing to do with its sanctions.

To Kelsen, the operation of the sanction itself depends on the operation of other rules of law.
In this way, the contrast between law and sanction in the Austinian sense disappears.

The validity of a norm is ascertained with reference to its authorising norm, which confers a
power to create it and may also specify conditions for its exercise. A particular norm, therefore
is authorized if it can be subsumed under a more general norm.

The conjecture which this opens up is the end of progression. Kelsen's solution was that in
every legal order, no matter with what proposition one may begin, a hierarchy of ought is
traceable back to some initial, fundamental ought on which the validity of all others ultimately
rests. This he called the grund norm, the basic or fundamental norm.

In this way, Kelsen's picture of a legal order emerges, not just as a collection of oughts, but a
hierarchy depending downwards form a grundnorm, or branching upwards from it, whichever
way one chooses to depict it.

Kelsen recognized that the grundnorm need not be the same in every legal order, but a grund
norm of some kind will always be there, whether, eg a written constitution or the will of a
dictator. The grundnorm in not the constitution, it is simply the pre supposition, demanded by
theory that this constitution ought to be obeyed.

Therefore, the grundnorm is always adapted to the prevailing state of affairs. The grundnorm
only imparts validity to the constitution and all other norms derived from it, it does not dictate
their content.

The difference between his positivism and natural law theory is that the latter determines the
content as well. there is no reason why there need only be one grundnorm, nor has it to be a
written constitution. 10

10
Dhyana, S.N., Jurisprudence and Indian Legal Theory, 3rd Edition, Central Law Agency,1999

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Critical Analysis :-

 Kelsen’s theory points out that the Grundnorm is presupposition that the constitution
ought to be obeyed. The constitution of a country is a sociological, political document
and so the Grundnorm is not pure.
 Kelsen also pointed out that law should be kept free from morality. A general question
should be raised here, whether is it possible to keep law free from morality?
 Kelsen made emphasis in the effective of law and by this way he indirectly accepted
the morality as a part of effectiveness.
 Kelsen attempted to convert law into a science, a theory that could be understood
through logic, but on the other hand he insisted on the validity of the grundnorm to be
“assumed”, rather than based upon some “logic”.
 Kelsen attempted to locate law and legal norms in a middle realm between absolute
moral values and social facts. Hence, the denial of the relevance of moral considerations
makes legal science sterile and useless, and the denial of the factual nature of law
disconnects it from reality.

CHANGE OF THE BASIC NORM :-

It is just the phenomenon of revolution which clearly shows the significance of the basic norm.
Suppose that a group of individuals attempt to cease power by force, in order to remove the
legitimate government in a monarchic state, and to introduce a republican form of government.
If they succeed, if the old order ceases, and the new order begins to be efficacious, because the
individual whose behaviour the new order regulates actually behave, by and large, in
conformity with the new order, then this order is considered as a valid order. It is now according
to this new order that the behaviour of the individuals is interpreted as legal or illegal. 11

INTERNATIONAL LAW :-

According to Kelsen, pacta sunt servanda is the grundnorm of international law.

In order to answer the question whether international law and national law are different and
mutually independent legal orders, to form one universal normative system, in order to reach a

11
Critical Analysis: Kelsen’s theory

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decision between monism and pluralism, we have to consider a general problem of what makes
a norm belong to a definite legal order, what is the reason that several norms form one and the
same normative system.

If the national legal order is considered without any reference to international law, then its
ultimate reason of validity is the hypothetical norm qualifying the "Fathers of the Constitution"
as a law creating authority. If, however, international law is taken into account, it is found that
this hypothetical norm can be derived from. Rooted as the recent international law is, and its
recent jurists have been, in either legal positivism or a priori ethical jurisprudence, the norms
of international law of necessity have to be left in the form of vacuous ethical grund norms.
Under such circumstances not even a modern Western nation an trust its fate to such an
international law, even though it be its own creation. For the time must inevitably come, if such
a vacuously defined international law is accepted without reservation ,when its grund norms
will be given content by representatives of cultures such as contemporary Soviet Russia,
Middle Eastern Islam or Hindu India. Such content will differ from and even in some cases be
antithetical to that of the living law of our own culture.

One problem that has perplexed the critics of Kelsen in his assertion in later writings is that a
illegal systems could be seen to be subsumed under one basic norm. Kelsen suggests that in
the modern world jurists must perhaps look at the national law as being validated by
international law.

Take for example. An English legal theorist may be asked, 'Why is the law in England valid?'
his probable answer is that it is made in accordance with the procedural requirements of a valid
constitution. He is here presupposing the basic norm of national law, that the authors of the
constitution were vested with the authority from a fictive norm, to make a valid constitution.

INDIAN CONSTITUTION :-

The time has been burgeoning "constitutional justice" which has in a sense combined the forms
of legal justice and the substance of natural justice. Desirous of protecting the permanent will
rather than the temporary whims, States have reasserted higher law principles through written
Constitutions. Thus, there has been synthesis of three separate concepts: The supremacy of
certain higher principles, the need to put even the higher law in written form, and the

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employment of judiciary as a tool for enforcing the Constitution against the ordinary
legislation. 12

Prof. Wheare rightly says :

That these two institutions - the supreme Constitution and the written Constitution – are
essential institutions to a federal government. The supreme Constitution is essential, if the
government is to be federal, the written Constitution is essential, if the federal government as
to work well."

The Indian Constitution is basically federal in form and is marked by the traditional
characteristics of federal system, namely, Supremacy of the Constitution, division of powers
between the Union and the State Governments, existence of an independent judiciary and a
rigid procedure for the amendment of the Constitution.

Slight reference to Kelsen's grundnorm can be found in the case of Srimati Indira Gandhi v.
Raj Narain and Ors. The Constitution operates as the fundamental law of the land. The
government organs owe their origin to the Constitution and derive their authority from, and
discharge their responsibilities within the framework of the Constitution. The Union Parliament
and the State legislature are not sovereign. The validity of a law, whether Union or State, is
judged with reference to the irrespective jurisdictions as defined in the Constitution of India.
The judiciary has the power to declare any norm as unconstitutional, if the law is found to have
contravened any provision of the Constitution.

CRITICISM’S OF GRUNDNORM :-

Kelsen's analysis of the formal structure of law as a hierarchical system of norms, and his
emphasis on the dynamic character of this process, are certainly illuminating and avoid some,
at any rate, of the perplexities of the Austinian system.

The basic norm is a very troublesome feature of Kelsen's system. It is not clear what sort of
norm this really is, nor what it is does, nor, where it can be found. Part of the problem lies in
Kelsen's own obliqueness. In his last published article he tells that it is not "positive" (which
means for Kelsen that it is not a norm of positive law, i.e. created by a real act of will of a legal
organ, but is presupposed in juristic thinking).

12
Dhyana, S.N., Jurisprudence and Indian Legal Theory, 3rd Edition, Central Law Agency,1999

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Hence, he argues, it is "meta-legal"; but, it is "legal" if by this term it can be understood as
anything which has legally relevant functions. And, since it enables anyone to interpret a
command, authorization or permission as an objectively valid legal norm, it legal functions are
not in doubt. Nonetheless, it is told that it is purely formal, is a juristic value judgment and has
a hypothetical character; yet it forms the keystone of the whole legal arch. Goodhart was
doubtful of the value of an analysis which did not explain the existence of a basic norm on
which the whole legal system was founded.

Kelsen propounds the fact that every jurist presumes the basic norm to be the basis of the legal
order; and that it merely means that legal order as a whole is effective, and that it may be stated
in the form that men ought to behave in conformity with the legal order only if it is as a whole
effective. This seems to invoke either a total unnecessary fictitious hypothesis. Moreover, the
basic norm is propounded as the means of giving unity to the legal system, and enabling the
legal scientist to interpret all valid legal norms as a non-contradictory field of meaning.

Presumably,therefore, there can be only one basic norm. But is this so? And if it is so, then
how is it related, if at all, to the constitution of the country. These questions are complicated
by lack of clarity in Kelsen's thoughts.

The scope of Kelsen's work is different from that of Austin. His writings address a multitude
of other issues which have no place in latter's writings. According to him law can be defined
in terms of certain norms. The whole system is interconnected with other norms and there is a
basic norm which is called the grundnorm. What this norm is, what is its function is still not
clear. There are many complexities in Kelsen's thoughts regarding this. All other norms are
derived from the grundnorm. Grundnorm is the norm of highest order. Also, no one can
question the validity of grundnorm. it is always constitutional in nature and although, it is
purely formal, it forms the main basis of the legal system.

Similarly, pacta sunt servanda i.e. all the treaties must be obeyed in good faith, is the grundnorm
of international law. Kelsen's theory finds a place in the Indian Constitution also. In India
Constitution is the highest law of the land. It is the supreme law. All the other laws derive their
validity from the Constitution of India. If a law is unconstitutional, it can be struck down by
the judiciary as null and void. Hence, Kelsen's ideas find a place in modern day's world also.

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CONCLUSION :-

Hans Kelsen, one of the most influential legal philosophers of the last century has contributed
to the answering of certain fundamental questions about law. The first of these is the relation
of law to theories of what the law should be, on the one hand, and to the institutions, practices
and mores of its society, on the other. The second aspect in Kelsen’s theory is that the whole
system is interconnected with each other in the form of a hierarchy of norms, and there is a
basic norm which stands at the top of this hierarchy called the grundnorm, which is of the
highest order, and the validity of this grundnorm is to be ‘supposed’. All other norms derive
their validity from this grundnorm, and no one can question the validity of this grundnorm.
Another aspect of Kelsen’s theory is that it presents us with a dynamic legal order rather than
a merely static one. The law tends to be orderly through maintaining consistency between its
various parts, through the broadening and simplifying of principles and conceptual
compartments and, in short, through tending to become a logical system, a perfect and complete
logical system.

The scope of Kelsen's work is different from that of Austin. His writings address a multitude
of other issues which have no place in latter's writings. According to him law can be defined
in terms of certain norms. The whole system is interconnected with other norms and there is a
basic norm which is called the grundnorm. What this norm is, what is its function is still not
clear. There are many complexities in Kelsen's thoughts regarding this. All other norms are
derived from the grundnorm. Grundnorm is the norm of highest order. Also, no one can
question the validity of grundnorm. it is always constitutional in nature and although, it is
purely formal, it forms the main basis of the legal system.

Similarly, pacta sunt servanda i.e. all the treaties must be obeyed in good faith, is the grundnorm
of international law. Kelsen's theory finds a place in the Indian Constitution also. In India
Constitution is the highest law of the land. It is the supreme law. All the other laws derive their
validity from the Constitution of India. If a law is unconstitutional, it can be struck down by
the judiciary as null and void. Hence, Kelsen's ideas find a place in modern day's world also.

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