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Is it necessary to pre-suppose a Grundnorm to have a legal system?

This essay tries to answer the question in the affirmative.

The positivist theories of law essentially differentiate between laws that are moral in nature
and laws that are man-made. Hans Kelsen, a positivist himself, proposed a pure theory of law
to remove the contamination caused by the attempts to reduce law to natural or social
sciences, and also the interference caused by political ideologies and standards of morality. 1
His pure theory of law includes in its consideration only those aspects of the law that are an
inherent part of it and excludes any form of political, sociological or ethical factors in its
explanation. The law, according to him is a relationship between a conditioned consequence
and a conditioned circumstance.2
In furtherance to his pure theory of law, Kelsen also proposed that a legal system was created
by a hierarchy of norms that existed in a society. His theory of the ‘basic norm’ evolved out
of his pure theory of law, where every norm that is active in a society is validated by a prior
superior norm that may be traced back to the point of origin of its legal authority. 3 The basic
norm or the Grundnorm as Kelsen would state is the starting point of any given legal system
or a chain of legal norms.4 It is the historically first constitution whose validity should be pre-
supposed. The pre-supposition of validity is important because for Kelsen, validity is the only
mode of existence for norms.5
The Grundnorm is the ultimate validating factor for all the laws in a given legal system and
its pre-supposition is necessary for the existing law to have any value in a given society. The
theory of the basic norm is an attempt by Kelsen to formalise a conceptual structure that
could give validity to any given legal system, by discovering a logical structure that would
uncover the underlying objective of our concept of law.6 This particular idea of providing for
an entirely new structure for validating existing norms was inspired by the works of
Immanuel Kant and his concept of law. Kelsen’s theory of a basic norm validating all other
subsequent norms in a legal system is justiciable because it is the only logical explanation for
a law being valid in any given land. The general public in any given country or legal system,
follow and adhere to the law as they know that they are bound by it and any deviation would
result in sanctions. But the theory of the Grundnorm works on a slightly deeper level where
the primary question is regarding the validity of the laws that are being followed in a given
system. It seeks to legitimise the existence of a law by validating it through a higher law
1
Marmor, Andrei, "The Pure Theory of Law", The Stanford Encyclopedia of Philosophy (Spring 2016 Edition),
Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2016/entries/lawphil-theory/>.
2
James Penner and E. Mellisaris, McCourbey & White’s Textbook on Jurisprudence (5th edition, Oxford
University Press)
3
Supra at 2
4
Supra at 2
5
Raz, Joseph (1974) "Kelsen's Theory of the Basic Norm," American Journal of Jurisprudence: Vol. 19: Iss.1,
Article 6, Available at: http://scholarship.law.nd.edu/ajj/vol19/iss1/6
6
Supra at 2

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which was itself validated by a higher law and so on until the final authority of validation is
reached. It is at this point that Kelsen simply asks us to pre-suppose the validity of the highest
law of the land in order legitimise the existing law. The theory of the Grundnorm is necessary
to be accepted in a given legal system as it is the only sensible explanation to why people
follow laws and from where do these laws derive their authority in a given legal system. For
example, in a legal system, there are numerous laws and statutes that dictate what is to be
done and what is prohibited in a given circumstance. But, what authorises these laws to be
functional in a legal system? The theory of Grundnorm answers this question. Kelsen states
that it is the Constitution of a given country that validates every subsequent law, making it
the Grundnorm, whose validity should be pre-supposed.
The Grundnorm is a necessary pre-supposition in a given legal system as it is the only
acceptable reasoning describing the normativity of law. In the present world, the law in most
areas is man-made with elements of morality and natural law being accepted as implied
within the boundaries of man-made laws. Almost every country has a Constitution or a
similar document that frames their legal system and codifies the laws. In Kelsenian terms, the
law is an ‘ought’ which has an obligation to be followed when applied to a given fact
scenario, which is the ‘is’. Therefore, there exists an evident gap between the ‘ought’ and the
‘is’ where norms cannot be derived from a particular fact scenario but are pre-determined and
applied accordingly.7 In a situation like this, it is of most importance that the ‘ought’ is
derived validly for it to have an impact on the ‘is’. The legitimacy of the ‘ought’ is explained
through the theory of the Grundnorm which seeks to objectively validate every norm that is
being followed in a given legal system. This particular theory is necessary because it is the
only available explanation as to why people are bound by something that is ought to be done.
A Grundnorm essentially declares the laws of the land valid, through its own validation
procedure. I personally believe this is necessary as it gives a certain level of legitimacy to
every law we follow as citizens. The existence of a Grundnorm makes sure that there is a
chain of validity that is followed in the procedure of law creation and any law created by
deviation from this procedure is illegal an invalid. The Grundnorm is an essential requirement
of every legal system, through which the chain of validity arises.
The pre-supposition of a Grundnorm is necessary as it serves the function of uniting a
normative legal system by creating a legal order where norms are codified and authorised by
higher norms. The pre-supposition of a Grundnorm implies that in a given legal system, there
is no haphazard collection of norms whose validity or invalidity can be questioned.8 It makes
sure that every norm in the society is backed by an authority and belongs to one chain of
command. The norms followed in a particular area originate from a single supreme
Grundnorm which branches out gradually into several forms creating a chain of law
formation and validation. The pre-supposition of a Grundnorm is important for a given legal
system as it acts as a uniting factor by virtue of which every law in operation can be traced
back to its authority and the source of its legitimacy.
The critique to this idea of unity through the pre-supposition of a Grundnorm is limited to the
doubts regarding the identity of the Grundnorm when there is a customary constitution and an
enacted constitution.9 The problem with this criticism is that when there is a customary
7
Supra at 5
8
Supra at 5
9
Supra at 5
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constitution, any person wondering the identity of the Grundnorm may almost always be
guided to the actual Grundnorm of the enacted constitution rather than the customary
constitution. In fact, I personally believe that there is no need to have a Grundnorm for a
customary constitution, as customs in their nature themselves are binding and validated. A
custom is a practice that has become binding over a number of years due to continuous
adherence. A person will only accept a thing as a custom once he is convinced of its
legitimacy. A custom is not forced upon a person but his obedience to it is earned over time.
People who abide by customs, do so because they believe in it and are already aware of its
validity, thereby leaving no necessity for pre-supposition of their validity. A law on the other
hand is man-made and forced upon people to obey and this is the reason why there has to be
an ultimate Grundnorm in terms of the constitutional law so that the people know that the law
they are following is legitimate and objectively valid.
The uniting function of a Grundnorm is visible in the present world where there are mainly
two types of legal systems. The Common law legal system and the Civil law legal system are
the ones that are dominant in major parts of the world. The effect of a Grundnorm is
especially visible in the common law legal system which is majorly followed in countries that
were once ruled by the British. For example, India, as part of the common law legal system
may trace the source of validity of its laws to the constitution which itself was validated by
the 1935 Act, which again was validated by a previous one. The chain continues till we reach
the final authority, which in this case is the first constitution, the British Constitution.
Therefore, by virtue of its uniting factor, the Grundnorm unites numerous countries under a
common legal system with convenient differences in their working, as countries please.
Although, the Constitution of India is the supreme authority in our country, in a broader
sense, it is a part of the Common law legal system and derives its authority from the British
constitution. As members of the common law legal system, our basic norm is the British
Constitution, but as citizens of our country, we regard our own Constitution as the supreme
authority on law. The other legal systems also derive their authorities similarly including
sovereign countries who mainly consider own constitution to be the Grundnorm in the
absence of another validating norm higher than its constitution.
The necessity of pre-supposing a Grundnorm as I have stated throughout the essay is
essential. Its advantages outweigh the disadvantages. It has to agreed that there is always
room for some criticism in every theory that is proposed. It is the same in this particular case
as well. The general critique of a Grundnorm is mainly regarding its technicality and its
relation to Kelsen’s pure theory of law. However, Grundnorm looked at as a mere pre-
supposition of validity of the highest law of the land serves numerous advantages and I
believe is necessary. It has to be kept in mind that every man-made law should be valid for it
to be followed. The pre-supposition of a Grundnorm only catalyses this process without
creating any additional law or giving recognition to an unwanted law. The Grundnorm merely
confers authority on subsequent laws and should be pre-supposed through a legal
consciousness and not through actions or amendments.
- Satvik Upadhya