Hans Kelsen

1|Page ANSHUL RAMESH
HANS KELSEN
KELSEN:
1. Austrian legal theorist, prolific and influential. Modern legal positivist,

described his theory in German as “reine Rechtslehre” or in English “a
pure theory of law”, a ‘science of norms’.
2. Kelsen proposes to expel all non-legal, historical, sociological,

metaphysical notions from science and law in order to make it truly
formal. His attempt is to eschew or banish all fallacies from the study of
law and to remove all chaos or confusion, which has shrouded the
essence of law. (Scientific answers/Sense based answers) [“ Kelsen
wanted to separate it from everything possible not just morality” – Shiv]
3. Kelsen wanted to isolate what was unique to legal structures. It was a

pure theory because it would describe law without reducing it to
psychology, sociology or the like. This distinguished Kelsen’s views
from the Scandinavian realists.
4. Kelsen, along with Hart was one of the most influential theorists of the
20th century. Kelsen pointed out that the command theorists were
mistaken in characterizing the law as a command of the sovereign
backed up by threats. Why--because if that were to be the case, there
would be no difference between the law and a gunman’s command;
but there is a difference between the two. The law unlike the gunman’s
commands is ‘normative’ and ought’; and this ought is ‘binding’. Valid
law, in short, is normative and binding. But what makes this binding? Is
it not because some sovereign said so, or because it is morally
meritorious? It is binding because the law derives its validity from the
grundnorm i.e. basic or ultimate norm of the legal system
5. The basic norm lends unity to the legal system by endowing the norms
(rules of law) under it with both validity and normativity. Propositions
of law on the other hand deal with what ought to occur. Propositions of
law- i.e. ought propositions are called norms.
6. Law is a hierarchy of norms whose validity is derived from the initial,

fundamental norm called the Grund norm. A grund norm is simply a pre-
supposition behind statutes such as the constitution imparting validity to
the constitution.
7. The idea of the basic norm serves three theoretical functions in Kelsen's
theory of law: The first is to ground a non-reductive explanation of legal
validity. The second function is to ground a non-reductive explanation of
the normativity of law. The third function is to explain the systematic
nature of legal norms. These three issues are not un-related.
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Since there is no backing behind the grund norm, to an extent it cannot be analyzed. Necessary
to distinguish between validity and effectiveness- when a grundnorm ceases to drive a
minimum of support, it ceases to be the basis of a legal order.
QUESTION: The normativity question asks: what makes law possible? What gives it a
capacity to have a claim upon our conduct such that we feel under an obligation as opposed to
merely feeling obliged?
Kelsen answers the second species of the normativity question by saying the law was
normative and had a claim upon our conduct because it was valid. It was made valid by the
presupposition of a basic norm, which made legal cognition possible in an already existing
legal system.
Kelsen's answer to the normativity question is that legal cognition is made possible by
presupposing the basic norm, 'positive norms are valid only on the assumption: that there is a
basic norm, which establishes the supreme law creating authority.' He argues that which we
know to be true, namely the legal validity of an already existing legal system, is only possible
if we presuppose the basic norm.
Kelsen’s theory -Kelsen wished to construct an independent, objective, value free science of
law, in short a pure theory of law. For Kelsen an independent, objective and value free study
of the law required any explanation of the normativity of law to be separated from morality,
which was to Kelsen mere ideology.
Criticism:
In whatever way the effectiveness of Kelsen’s grund norm is measured, it would seem to
depend on those sociological factors which Kelsen so vehemently wanted to remove, Kelsen’s
inability to lay down criterion, by which minimized effectiveness of legal norms is to be
measured. What makes the basic norm possible in the first place is not answered. He treats that
this question as beyond the realms of theory. The content of the basic norm was first described
as “norm creating facts”- This however contradicts Kelsen's purity thesis, because it amounts
to deriving laws from norm creating facts and thus an 'ought' from an 'is'.
Then Kelsen went onto concede that the basic norm was a fiction and not a presupposition and
in his second book did not refer to the contents of the basic norm. The traditional legal
philosophies at the time, were, Kelsen claimed, hopelessly contaminated with political
ideology and moralizing on the one hand, or with attempts to reduce the law to natural or social
sciences, on the other hand.
He found both of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a
‘pure’ theory of law, which would avoid reductionism of any kind. The jurisprudence Kelsen
propounded “characterizes itself as a ‘pure’ theory of law because it aims at cognition focused
on the law alone” and this purity serves as its “basic methodological principle”. The main
challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the
normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other
domains.
The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity,
resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and
events in the world. Suppose, for example, that a new law is enacted by the California
legislature. How is it done? Presumably, some people gather in a hall, debate the issue,
eventually raise their hands in response to the question of whether they approve a certain
document or not, count the number of people who say “yes”, and then promulgate a string of
words, etc. Now, of course, the actions and events described here are not the law. To say that
the description is of the enactment of a new law is to interpret these actions and events in a
certain way. But then, of course, the question is why certain acts or events have such a legal
meaning and others don't?
Kelsen's answer to this question is surprisingly simple: an act or an event gains its legal-
normative meaning by another legal norm that confers this normative meaning on it. An act
can create or modify the law if it is created in accordance with another, “higher” legal norm
that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if
and only if it has been created in accord with yet another, “higher” norm that authorizes its
enactment in that way. In other words: it is the law in the United States that the California
legislature can enact certain types of laws. But what makes this the law? The California
Constitution confers this power on the state legislature to enact laws within certain prescribed
boundaries of content and jurisdiction. But then what makes the California Constitution legally
valid? The answer is that the legal validity of the Constitution of California derives from an
authorization granted by the US Constitution. What makes the US Constitution legally valid?
Surely, not the fact that US Constitution proclaims itself to be “the supreme law of the land”.
Any document can say that, but only the particular document of the US Constitution is actually
the supreme law in the United States. The problem is that here the chain of authorization comes
to an end: There isn't a higher legal norm that authorizes the enactment of the (original) US
Constitution. At this point, Kelsen famously argued, one must presuppose the legal validity of
the Constitution. At some stage, in every legal system, we get to an authorizing norm that has
not been authorized by any other legal norm, and thus it has to be presupposed to be legally
valid. The normative content of this presupposition is what Kelsen has called the basic norm.
The basic norm is the content of the presupposition of the legal validity of the (first, historical)
constitution of the relevant legal system.
Kelsen: The Purity Theorist
Kelsen, along with Hart was one of the most influential theorists of the 20th century. Kelsen
pointed out that the command theorists were mistaken in characterizing the law as a command
of the sovereign backed up by threats. Why--because if that were to be the case, there would
be no difference between the law and a gunman’s command; but there is a difference between
the two. The law unlike the gunman’s commands is ‘normative’ and ought’; and this ought is
‘binding’. Valid law, in short, is normative and binding. But what makes this binding? Is it not
because some sovereign said so, or because it is morally meritorious? It is binding because the
law derives its validity from the grundnorm i.e. basic or ultimate norm of the legal system. The
basic norm lends unity to the legal system by endowing the norms (rules of law) under it with
both validity and normativity. Propositions of law on the other hand deal with what ought to
occur.
Propositions of law- i.e. ought propositions are called norms. Law is a hierarchy of norms
whose validity is derived from the initial, fundamental norm called the Grund norm. A grund
norm is simply a pre-supposition behind statutes such as the constitution imparting validity to
the constitution. Since there is no backing behind the grund norm, to an extent it cannot be
analyzed. Necessary to distinguish between validity and effectiveness- when a grundnorm
ceases to drive a minimum of support, it ceases to be the basis of a legal order. The normativity
question asks: what makes law possible? What gives it a capacity to have a claim upon our
conduct such that we feel under an obligation as opposed to merely feeling obliged? Kelsen’s
answer the second species of the normativity question by saying the law was normative and
had a claim upon our conduct because it was valid. It was made valid by the presupposition of
a basic norm, which made legal cognition possible in an already existing legal system. Kelsen's
answer to the normativity question is that legal cognition is made possible by presupposing the
basic norm, 'positive norms are valid only on the assumption: that there is a basic norm, which
establishes the supreme law creating authority.' He argues that which we know to be true,
namely the legal validity of an already existing legal system, is only possible if we presuppose
the basic norm. Kelsen’s theory: Kelsen wished to construct an independent, objective, value
free science of law, in short a pure theory of law. For Kelsen an independent, objective and
value free study of the law required any explanation of the normativity of law to be separated
from morality, which was to Kelsen mere ideology. Criticism- In whatever way the
effectiveness of Kelsen’s grund norm is measured, it would seem to depend on those
sociological factors which Kelsen so vehemently wanted to remove, Kelsen’s inability to lay
down criterion, by which minimized effectiveness of legal norms is to be measured. What
makes the basic norm possible in the first place is not answered. He treats that this question as
beyond the realms of theory. The content of the basic norm was first described as “norm
creating facts”- This however contradicts Kelsen's purity thesis, because it amounts to deriving
laws from norm creating facts and thus an 'ought' from an 'is'. Then Kelsen went onto concede
that the basic norm was a fiction and not a presupposition and in his second book did not refer
to the contents of the basic norm. The traditional legal philosophies at the time, were, Kelsen
claimed, hopelessly contaminated with political ideology and moralizing on the one hand, or
with attempts to reduce the law to natural or social sciences, on the other hand. He found both
of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of
law, which would avoid reductionism of any kind. The jurisprudence Kelsen propounded
“characterizes itself as a ‘pure’ theory of law because it aims at cognition focused on the law
alone” and this purity serves as its “basic methodological principle”. The main challenge for a
theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of
law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law,
Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in
the sphere of meaning; we attach a legal-normative meaning to certain actions and events in
the world. Suppose, for example, that a new law is enacted by the California legislature. How
is it done? Presumably, some people gather in a hall, debate the issue, eventually raise their
hands in response to the question of whether they approve a certain document or not, count the
number of people who say “yes”, and then promulgate a string of words, etc. Now, of course,
the actions and events described here are not the law. To say that the description is of the
enactment of a new law is to interpret these actions and events in a certain way. But then, of
course, the question is why certain acts or events have such a legal meaning and others don't?
Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the
land”. Any document can say that, but only the particular document of the US Constitution is
actually the supreme law in the United States. The problem is that here the chain of
authorization comes to an end: There isn't a higher legal norm that authorizes the enactment of
the (original) US Constitution. At this point, Kelsen famously argued, one must presuppose the
legal validity of the Constitution. At some stage, in every legal system, we get to an authorizing
norm that has not been authorized by any other legal norm, and thus it has to be presupposed
to be legally valid. The normative content of this presupposition is what Kelsen has called the
10 | P a g e ANSHUL RAMESH
basic norm. The basic norm is the content of the presupposition of the legal validity of the
(first, historical) constitution of the relevant legal system.
As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate
David Hume's injunction against deriving an “ought” from an “is”. Hume famously argued that
any practical argument that concludes with some prescriptive statement, a statement of the kind
that one ought to do this or that, would have to contain at least one prescriptive statement in its
premises. If all the premises of an argument are descriptive, telling us what this or that is the
case, then there is no prescriptive conclusion that can logically follow. Kelsen took this
argument very seriously. He observed that the actions and events that constitute, say, the
enactment of a law, are all within the sphere of what “is” the case; they are all within the sphere
of actions and events that take place in the world. The law, or legal norms, is within the sphere
of “ought”, they are norms that purport to guide conduct. Thus, to get an “ought” type of
conclusion from a set of “is” premises; one must point to some “ought” premise in the
background, an “ought” that confers the normative meaning on the relevant type of “is”. Since
the actual, legal, chain of validity comes to an end, we inevitably reach a point where the
“ought” has to be presupposed, and this is the presupposition of the basic norm.
The idea of the basic norm serves three theoretical functions in Kelsen's theory of law: The
first is to ground a non-reductive explanation of legal validity. The second function is to ground
a non-reductive explanation of the normativity of law. The third function is to explain the
systematic nature of legal norms. These three issues are not un-related. This last point brings
us to another observation that is central to Kelsen's theory, about the relations between legal
validity and, what he called, “efficacy”. The latter is a term of art in Kelsen's writings: A norm
is efficacious if it is actually (generally) followed by the relevant population. Thus, “a norm is
considered to be legally valid”, Kelsen, wrote, “on the condition that it belongs to a system of
norms, to an order which, on the whole, is efficacious”. So the relationship here is this: efficacy
is not a condition of legal validity of individual norms. Any given norm can be legally valid
even if nobody follows it. (e.g. think about a new law, just enacted; it is legally valid even if
nobody has yet had an opportunity to comply with it.) However, a norm can only be legally
valid if it belongs to a system, a legal order that is by and large actually practiced by a certain
population. And thus the idea of legal validity, as Kelsen admits, is closely tied to this reality
of a social practice; a legal system exists, as it were, only as a social reality, a reality that
consists in the fact that people actually follow certain norms.
• Physical force can be used by an authority that possesses adequate power when it is
necessary only in cases when resistance is encountered in applying sanctions.
• Social order seeks to bring out the desired behavior of individuals by the enactment of
measures of coercion is and is called coercive order. It is called as such because it
threatens with measures of coercion by decrees which are coercive.
• Voluntary obedience is another form which brings out an intended result to sanctions
and this is not based on coercion.
Kelsen pointed out that the command theorists were mistaken in characterizing the law as a
command of the sovereign backed up by threats.
Why?
Because if that were to be the case, there would be no difference between the law and a
gunman’s command; but there is a difference between the two.
The law unlike the gunman’s commands is ‘normative’ an ‘ought’; and this ought is ‘binding’.
Valid law, in short, is normative and binding.
But what makes this binding?
Is it not because some sovereign said so, or because it is morally meritorious. It is binding
because the law derives its validity from the grundnorm i.e. basic or ultimate norm of the legal
system. The basic norm lends unity to the legal system by endowing the norms (rules of law)
under it with both validity and normativity. But where does this grundnorm come from? Kelsen
is famously ambiguous. It is a postulate he argues.
Kelsen Notes:
▪ Austrian legal theorist, prolific and influential.
▪ Modern legal positivist.
▪ Described his theory in German as “reine Rechtslehre” or in English “a pure theory of

law”, a ‘science of norms’.
▪ Kelsen proposes to expel all non-legal, historical, sociological, metaphysical notions

from science and law in order to make it truly formal. His attempt is to eschew or banish
all fallacies from the study of law and to remove all chaos or confusion, which has
shrouded the essence of law. (Scientific answers/Sense based answers) [“ Kelsen
wanted to separate it from everything possible not just morality” – Shiv]
▪ Kelsen wanted to isolate what was unique to legal structures. It was a pure theory
because it would describe law without reducing it to psychology, sociology or the like.
This distinguished Kelsen’s views from the Scandinavian realists.
▪ In describing it as a science of norms Kelsen wanted a description of the structure of

law that was free of evaluative terms.
He thought
1. Normative claims (how things ought to be or how people ought to act) can only be
legitimized only by reference to other normative claims.
2. Such lines of justification come to an end at some point.
▪ Kelsen did not have religious faith. He theorized that there was a foundational argument
presupposed by law, in a comparable way to the one implied by a religious-based
statement.
▪ He also looked at actions and worked out what actions were normative actions e.g.
putting slips of paper into a box – voting.
▪ Kelsen characterized laws as rules or norms. Laws are always part of a system of norms
having relationships of validity which they derive from higher norms. A norm was a
valid norm if a higher norm authorised the making of the lower norm and it had been
made in accordance with the higher authorising law.
The Grundnorm
▪ Kelsen recognized that the chains of validity do not regress indefinitely and one will
ultimately run out of higher authorising valid norms. What confers validity on the
system as a whole is not therefore another positive rule of law but what Kelsen called
the grundnorm sometimes translated as ‘basic norm’.
▪ Kelsen described the grundnorm as the fundamental assumption made by people

in society about what would be treated as law. It is not the constitution, which for
Kelsen was simply another positive norm.
▪ P58 Bix “It is the understanding that eventually we will come to a point either so
foundational, or so early in society’s legal theory that one cannot go further back, and
no further justification can be offered”. Asserting the normative validity of a particular
legal rule (e.g. you cannot park here) is to implicitly affirm the validity of the
foundational link of the chain.
▪ This affirmation of the underlying belief in the system is what Kelsen called the
affirming the “Grundnorm”.
e.g. in religion you might say you cannot do x and y because God says, and that is your
foundational belief… if you follow the basic norm it is because you believe in what Parliament
says and the authority Parliament had for passing the norms/laws.
It is apparent that what particular grundnorm applies in a society simply depends upon what
fundamental assumptions are made by the members of that society. The identity of the
grundnorm is ultimately a matter of sociological fact. (No moral or other judgement or
assessment is being made about it).
Some people have argued that it follows from Kelsen’s theory that if the assumption should
change as a result of a revolution or coup d’état, and people apply the new assumption, then
laws made with the new assumption will be valid. Kelsen’s theory appears consistent with
maxim “might is right”.
Whether or not this controversial assumption flows from Kelsen’s theory has been considered
in cases involving radical norm change.
Summarizing Kelsen:
2 things universally true of law:
- coercive
- system of norms
and all legal norms could be understood in terms of an authorization to an official to impose
sanctions. A does X (wrong act), B imposes Y (sanction) and it applied in both civil and
criminal law (see Bix).
Concept of the basic norm:
4 questions to be asked: [see Harris]
1. Its nature
2. Content
3. Function
4. how to choose between competing basic norms
Basic norm was valid due to:
- system-membership (eg we in our society are part of a system)
- bindingness (this had to be an attribute of the basic norm)
When there is a revolution, OLD LAWS STOP BEING ENFORCED
New laws by the rebels are enforced instead therefore, there is a NEW BASIC NORM
authorising revolutionary constitution. (Might is Right notion)
The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality
and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to
other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality,
or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain
actions and events in the world (PT1, 10). Suppose, for example, that a new law is enacted by
the California legislature. How is it done? Presumably, some people gather in a hall, debate the
issue, eventually raise their hands in response to the question of whether they approve a certain
document or not, count the number of people who say “yes”, and then promulgate a string of
words, etc. Now, of course, the actions and events described here are not the law. To say that
the description is of the enactment of a new law is to interpret these actions and events in a
certain way. But then, of course, the question is why certain acts or events have such a legal
meaning and others don't?
Surely, not the fact that the US Constitution proclaims itself to be “the supreme law of the
land”. Any document can say that, but only the particular document of the US Constitution is
actually the supreme law in the United States.
The problem is that here the chain of authorization comes to an end: There isn't a higher legal
norm that authorizes the enactment of the (original) US Constitution. At this point, Kelsen
famously argued, one must presuppose the legal validity of the Constitution. At some stage, in
every legal system, we get to an authorizing norm that has not been authorized by any other
legal norm, and thus it has to be presupposed to be legally valid. The normative content of this
presupposition is what Kelsen has called the basic norm. The basic norm is the content of the
presupposition of the legal validity of the (first, historical) constitution of the relevant legal
system (GT, 110–111).
As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate
David Hume's injunction against deriving an “ought” from an “is”. Hume famously argued that
any practical argument that concludes with some prescriptive statement, a statement of the kind
that one ought to do this or that, would have to contain at least one prescriptive statement in its
premises. If all the premises of an argument are descriptive, telling us what this or that is the
case, then there is no prescriptive conclusion that can logically follow. Kelsen took this
argument very seriously. Kelsen established the essential difference between “ought” and “is”.
According to Kelsen, law is a normative science and is not a natural science based on cause
and effect like law of gravitation. These natural science laws describe a relationship, which
exists and can be accurately described, determined and discovered in the form of ‘is’. The ‘is’
is the essential characteristic of natural science, e.g. Newton’s law of gravitation. The idea of
science is to eliminate everything necessary. Science is closely linked with “is”. However, law
in the lawyers sense is the knowledge of what the law ought to be. If X commits theft, he ought
to be punished i.e. if he breaks the law he ought to be punished. It is the ‘ought’ element which
prescribes a normative character to law- what ought to be.
Is – language of facts – natural science – cause and effects - gravitation
Ought – language of norms – normative science – if X commits theft he ought to be punished

i.e. if he breaks the law he ought to be punished.
He observed that the actions and events that constitute, say, the enactment of a law, are all
within the sphere of what “is” the case, they are all within the sphere of actions and events that
take place in the world. The law, or legal norms, are within the sphere of “ought”, they are
norms that purport to guide conduct. Thus, to get an “ought” type of conclusion from a set of
“is” premises, one must point to some “ought” premise in the background, an “ought” that
confers the normative meaning on the relevant type of “is”. Since the actual, legal, chain of
validity comes to an end, we inevitably reach a point where the “ought” has to be presupposed,
and this is the presupposition of the basic norm. In other words, “Kelsen is an empiricist.
Empiricists usually consider law as an “is” and it is natural law philosophers that considers law
as an “ought” but Kelsen says law is an “ought”! This is where the problem lies, Kelsen wanted
to say everything with respect to “is” but law according to him is an “ought”. So he wants ought
and is! (Shiv)
The Idea of Sanctions:
Kelsen explains the word “norm” as a hypothetical judgement which directs of doing and not
doing of a specified act to be followed by coercive measures of the State. A norm is a rule
forbidding or prescribing a certain behavior. According to Kelsen a legal obligation/norm is an
ought. A moral norm might say “Thou shall not steal” It does not attach a punitive consequence
to the act of stealing. But if it were a legal norm, it would like “ If a person steals, he ought to
be punished by the competent organ or agent of the State.” The illegal act ( act of stealing) is
called by Kelsen the ‘delict’, the consequence threatened by the norm (punished by a competent
authority) is called the sanction.
Kelsen says that all laws tell you when sanction would apply. (Shiv)
Kelsen rightly noticed that legal norms necessarily come in systems. There are no free-floating
legal norms. If, for example, somebody suggests that “the law requires a will to be attested by
two witnesses”, one should always wonder which legal system is talked about; is it US law,
Canadian law, German law, or the law in some other legal system? Furthermore, legal systems
are themselves organized in a hierarchical structure, manifesting a great deal of complexity but
also a certain systematic unity. We talk about Canadian law, or German law, etc., not only
because these are separate countries in which there is law. They are also separate legal systems,
manifesting a certain cohesion and unity. This systematic unity Kelsen meant to capture by the
following two postulates:
1. Every two norms that ultimately derive their validity from one basic norm belong to the
same legal system.
2. All legal norms of a given legal system ultimately derive their validity from one basic
norm.
Whether these two postulates are actually true is a contentious issue. Joseph Raz argued that
they are both inaccurate, at best. Two norms can derive their validity from the same basic norm,
but fail to belong to the same system as, for example, in case of an orderly secession whereby
a new legal system is created by the legal authorization of another. Nor is it necessarily true
that all the legally valid norms of a given system derive their validity from the same basic norm
(Raz 1979, 127–129).
Be this as it may, even if Kelsen erred about the details of the unity of legal systems, his main
insight remains true, and quite important. It is true that law is essentially systematic, and it is
also true that the idea of legal validity and law's systematic nature are very closely linked.
Norms are legally valid within a given system, they have to form part of a system of norms that
is in force in a given place and time.
This last point brings us to another observation that is central to Kelsen's theory, about the
relations between legal validity and, what he called, “efficacy”. The latter is a term of art in
Kelsen's writings: A norm is efficacious if it is actually (generally) followed by the relevant
population. Thus, “a norm is considered to be legally valid”, Kelsen wrote, “on the
condition that it belongs to a system of norms, to an order which, on the whole, is efficacious”
(GT, 42). So, the relationship here is this: efficacy is not a condition of legal validity of
individual norms. Any given norm can be legally valid even if nobody follows it. (e.g. think
about a new law, just enacted; it is legally valid even if nobody has yet had an opportunity to
comply with it.) However, a norm can only be legally valid if it belongs to a system, a legal
order, that is by and large actually practiced by a certain population. And thus, the idea of legal
validity, as Kelsen admits, is closely tied to this reality of a social practice; a legal system
exists, as it were, only as a social reality, a reality that consists in the fact that people actually
follow certain norms.
What about the basic norm, is efficacy a condition of its validity? One might have thought that
Kelsen would have opted for a negative answer here. After all, the basic norm is a
presupposition that is logically required to render the validity of law intelligible. This would
seem to be the whole point of an anti-reductionist explanation of legal validity: since we cannot
derive an “ought” from an “is”, some “ought” must be presupposed in the background that
would enable us to interpret certain acts or events as having legal significance. Kelsen,
however, quite explicitly admits that efficacy is a condition of the validity of the basic norm:
A basic norm is legally valid if and only if it is actually followed in a given population. In fact,
as we shall see below, Kelsen had no choice here. And this is precisely why at least one crucial
aspect of his anti-reductionism becomes questionable.
Critics say: do we really measure legality by effectiveness? (i.e. the more radical the coup
the more lawful/authorised it is?)
Kelsen – efficacy or effectiveness = pre-condition of legal validity (desirability, ethics or

morality nothing to do with it)
(4) Kelsen is concerned with actual and not with ideal law. He strips the law of all illusions and
distractions.
(5) Kelsen is of the view that it is not possible to define law in terms of justice for many rules
may be unjust but they do not cease to be law. Justice is an irrational ideal that is it cannot be
defined by reason and hence it is not a satisfactory concept for a science of pure law. (The
word science is used by Kelsen in Kantian sense as being system of knowledge or totality of
cognitions arranged according to principles.
Similarity with John Austin!
Kelsenite reconstruction of the structure of legal system has many features, which are akin to
that of John Austin.
In his determination of law and legal system as distinguished from moral norms, Kelsen is in
complete agreement with Austin as both the jurists are not concerned with moral, ideal, or
ethical elements. Austin separated jurisprudence from science of legislation and positive law
from improper laws. Kelsen too as pure theorist of law rigidly excludes politics, ideology, and
sociology from legal science. He desires to create a “pure” unadulterated science of law
stripped of all ideals, moral and social complexions. Both of them wish to separate the realm
of jurisprudence form that of natural sciences.
Kelsen’s grundnorm is akin to Austin’s sovereign and is the source of valid law and without
which law cannot be binding and obligatory. They are similar cos both correlate law with force.
However for Kelsen law is ought but for Austin law is “is”.
❖ Having studied the features of law – is international law actually “law”? What are
its characteristics?
At a philosophical level:
Aspects which can be seen in a domestic context: the existence of obligation, external or
internal, are arguably present: analysis can be the same, that it is obeyed, or should be obeyed
because of arguments re attributes of one or some of the others:
Kelsen
Goes into the idea as to when is a law effective and binding. It is effective because it is binding
and it is binding because it is effective.
He is going into the inquiry as to whether law is a coercive order. It is an order that will govern
the actions of the people. Either there is a coercive order to it or people voluntarily choose it,
but then again voluntarily is also coerced because we have those notions in our brain. Basically
saying that in most cases law has to be understood as a coercive order, even though you may
choose to do something but then again that too is coerced by notions.
He talks about rule of law and law of nature, the fundamental form of law of nature is the law
of causality, it means that if you do something which is a cause the consequence of this is how
law of nature is defined.
Rule of law refers to human beings and their behavior, It is independent of law of nature it
refers to things and their reactions, basically cause and their effect. Human actions are also
affected by laws of nature.
Rule of nature can be explained in terms of is and rule of law can be explained in terms of
ought. The validity of a norm remains un affected if in a concrete instance the fact does not
correspond to a norm.
His main theory is the grundnorm. The idea behind this is that all the norms derive its validity
from one big parent norm. the last point you can go in history is the point where the grundnorm
is present. He says that this norm derives its validity from god. It is the first constitution or the
final postulate.
He talks about the specific function of the grundnorm, the fathers of the first constitution were
empowered by god.
Kelsen’s Grundnorm-
Grundnorm comes from a German word, which means Basic Norm. It is a vital concept in ‘The
Pure Theory of Law’ created by the famous jurist and legal philosopher Hans Kelsen. Kelsen
used the word Grundnorm to denote the basic norm, order or rule that forms the underlying
basis of any legal system in the world. His theory is based on the inevitable need to find a point
of origin for everything that we may term as law and on which the basic law and constitution
of a country can gain their legitimacy. Kelsen grundnorm is closely associated with the concept
of a fully centralized legal order in contrast to the existence of decentralized forms of
government and representing legal orders. When one reads Kelsen he often has two ways to
take firstly the theoretical reading of hypothetical construction and on the other hand, to those
seeking a practical reading, the Grundnorm would correspond to something directly and
concretely comparable to a sovereign nation's federal constitution, under which would be
organized all or its regional and local laws, and no law would be recognized as being superior
to it. So basically concluding Kelsen, he suggests that there exists a Grundnorm superior to all
the Grundnorms of the state.
Debate between Kelsen and Hart
Here by the phrase coup d’état, we mean juridical coup d’état, which means a fundamental
transformation in the normative foundations of a legal system through the constitutional
lawmaking of a court. A “normative foundation” is a precept of a system’s higher law.
Although there are differences between Kelsen’s conception of the Grundnorm and Hart’s
notion of a Rule of Recognition, a juridical coup d’état is a judicial decision that changes both.
• First, we must be able to infer, reasonably, that the constitutional law produced by the
transformation would have been rejected by the founders of our constitution, had it been placed
on the negotiating table.
• Second, the outcome must alter – fundamentally – how the legal system operates, again,
in ways that were, demonstrably, unintended by the founders. The transformation will make it
impossible for an observer to deduce the new system from institutional design at the ex-ante
constitutional moment. It will also imply a breach of pre-coup separation of powers orthodoxy.
And finally, by “constitutional lawmaking,” I mean the modification of the constitution through
adjudication. A juridical coup d’état constitutes a particular type of lawmaking, one that
essentially alters the Basic Norm and a Rule of Recognition.
The major issues raised in this context are. First, the question of how to understand an
endogenous change in a legal system’s Grundnorm, let alone one accomplished through
adjudication, is not a simple one. In the first version of his Pure Theory of Law, Kelsen himself
equated the idea of “successful revolution” with a change in the Basic Norm, and used the
example of a coup d’état, in which “the King is replaced by representative government, as an
illustration. After the coup, Kelsen writes, “One [now] presupposes a new Basic Norm, no
longer the Basic Norm delegating law making authority to the monarch, but [one] delegating
authority to the revolutionary government.”
Let’s stipulate that a revolutionary coup d’état proceeds through acts that are not authorized
under the Basic Norm, whereas a juridical coup d’état proceeds through the exercise of powers
that have been delegated by the Basic Norm to the judicial authority. One might now wonder
whether, indeed, the judicial authority had behaved “unconstitutionally.” By definition, a
juridical coup d’état produces legal effects and, for Kelsen, a norm that produces legal effects
must be considered a valid norm. Yet the substance of the judicial decision might not have been
authorized, or might even have been forbidden, by the substance of the prior Basic Norm.
Accordingly, one deep structural question concerns whether the constitutional delegation to the
judge includes substantive constraints on the judge’s lawmaking. It may be that the constitution
enables judicially lawmaking, but does not necessarily constrain it substantively. Second, much
positivist legal theory builds its account of legitimate judicial authority, and of the legitimate
exercise of judicial discretion, through describing the ways in which the legal system constrains
judging. Judges are expected to package their decisions in ways that make their rulings appear
to be relatively redundant, self-evident, deductive extensions of existing legal materials. H.L.A.
Hart argued that the extent of defensible judicial discretion in place at any point was inversely
proportional to the extent of the applicable law’s indeterminacy, so long as judges resolve
disputes in an “adequate,” or “reasonably defensible,” rather than in an “arbitrary” or
“irrational,” manner. In Hart’s account, judicial lawmaking is defensible, rather than arbitrary,
to the extent that it proceeds in light of pre-existing law and past rulings, and to the extent that
it "renders" existing that law “more determinate.” For Neil Mac, a close student of Hart’s, the
primary objective of legal theory is the development of standards for evaluating a court’s
jurisprudence as “good or bad,” “acceptable or not acceptable,” “rational or arbitrary.” Bad
decisions are those that cannot, ultimately, be packaged as a deduction from prior, first-order
norms and principles. It should be obvious that a juridical coup d’état fatally undermines this
project. In its own terms, we have little choice but to classify juridical coups as the result of
bad, arbitrary, and irrational decisions. In the real world, of course, doctrinal authorities have
choices. They can celebrate or decry the decision; they can ignore it, or treat it as an anomaly
or an exception that proves the rule. The likelihood that any juridical coup d’état will provoke
doctrinal wars, big and small, is nonetheless high. If the court maintains its position,
mainstream doctrine, at least, is likely to follow, at least eventually. Legitimacy of the post-
coup legal order, and of judicial authority can be reconstructed within it, but only in terms of
the new Basic Norm and the new Rule of Recognition. The old Norm and the old Rule, once
overthrown, cannot provide the normative basis for the way the new legal system evolves after
the coup. Third, uncertainty about what should count as a juridical coup d’état, and what does
not count, is inevitable. If all coups will likely be produced by acts of “creative” legal
interpretation, not all creative judicial lawmaking will constitute coups. Further, a court may
overrule itself, deciding that it had gotten the law wrong in the past. Such decisions will, indeed,
engender a change in the law’s effects on its subjects, but that does not mean that they have
altered the Basic Norm or a Rule of Recognition. Rather, one has to distinguish between an
interpretation of the content of the Basic Norm, and a revision.

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Hans Kelsen

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1|Page ANSHUL RAMESH

1. Austrian legal theorist, prolific and influential. Modern legal positivist,

2. Kelsen proposes to expel all non-legal, historical, sociological,

3. Kelsen wanted to isolate what was unique to legal structures. It was a

6. Law is a hierarchy of norms whose validity is derived from the initial,

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Kelsen: The Purity Theorist

But what makes this binding?

▪ Austrian legal theorist, prolific and influential.

▪ Modern legal positivist.

▪ Described his theory in German as “reine Rechtslehre” or in English “a pure theory of

▪ Kelsen proposes to expel all non-legal, historical, sociological, metaphysical notions

▪ In describing it as a science of norms Kelsen wanted a description of the structure of

2. Such lines of justification come to an end at some point.

▪ Kelsen described the grundnorm as the fundamental assumption made by people

2 things universally true of law:

Concept of the basic norm:

4 questions to be asked: [see Harris]

Basic norm was valid due to:

- system-membership (eg we in our society are part of a system)

- bindingness (this had to be an attribute of the basic norm)

When there is a revolution, OLD LAWS STOP BEING ENFORCED

Is – language of facts – natural science – cause and effects - gravitation

Ought – language of norms – normative science – if X commits theft he ought to be punished

The Idea of Sanctions:

Kelsen – efficacy or effectiveness = pre-condition of legal validity (desirability, ethics or

Similarity with John Austin!

Debate between Kelsen and Hart

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