Hans Kelsen
It
Hans Kelsen (1888-1973) was an Austrian jurist and philosopher of
law from the ‘positivist’ school of thoughts who propounds the idea
of “Pure Theory of Law”. The pure theory of law tries to answer the
question of ‘what the law is’ and not ‘what the law ought to be’. The
issue of goodness and badness of the law is not considered in
Kelsen’s theory.
Kelsen sets up his theory by first making a fundamental distinction
between the “prescriptive” and “descriptive” aspects of positive law.
‘Purity / Pure’, according to him, refers to the law being free from
any alien and metaphysical factors such as moral and ethical issues,
politics and justice. Hence, the law is seen as a scientific approach,
and not as political matters.
Based on his theory, Kelsen defined ‘law’ as a ‘norm of action’. On
the other hand, ‘norms’ can be defined as ‘a standard of conduct of
an individual on whether it is legal or illegal’. He contended that a
norm can be understand by answering question; “If X happens, then
what ought to happen?”. For example, if an accident occurs, what
is norm that ought to happen? Practically, a reasonable man will give
a direct help to the person involved in the accident (ought), instead of
calling the police and ambulance (is).
Furthermore, Kelsen also proposed a concept that every norms are
validated by a higher degree of norm until it reached the peak of a
norm, known as “Grundnorm”. This hierarchy of norms, with
grundnorm being on top, validates all other norms below it. This
process of concretization of norms create a more specific law as it
flows down from general basic norm.
Grundnorm Norms
Grundnorm or basic norm is the initial legal hypothesis which exist
in juristic thoughts. It is the supreme and highest rule that stands by
itself. There can be no other norm higher than grundnorm and it
cannot be created by another body or authority. One of the nature of
grundnorm is that, it has the power to validate the entire legal system
and imparts validity to the constitution and all other norms derived
from it. Grundnorm also functioned as to provide unity to the law.
should be noted that the constitution of a country cannot be a
grundnorm. However, it can be said that grundnorm transparently
stands behind the constitution, giving the constitution needed power
and validity.
To illustrate, in Madzimbamuto v Lardner-Burke, the court held
that the unilateral declaration of independence by Ian Smith is
invalid because it is done unconstitutionally without regards to the
colonial power of British. Hence, the constitution created by the new
regime together with any laws created under it shall not be valid. To
relate, this decision can be very much related to Kelsen’s theory that
a law is a norm and is only valid if it is validated by a higher norm.
Moreover, Kelsen also states that when a grundnorm is invalidated,
the whole norms associated with the grundnorm would be invalid as
well. Hence, the main question behind grundnorm is, how can one
concludes that the grundnorm itself is valid? To answer, the way to
identify whether a grundnorm is valid or not is by upholding the
“Principle of Efficacy”. This effectiveness can be seen in two
aspects, namely;
1. Acceptance; and
2. Obedience
As for the aspect of acceptance, Kelsen contended that the norms of
the legal order must be accepted ‘by and large’ within the
community. Therefore, there must be general supports for it. As for
the aspect of obedience, Kelsen agreed that there must be a ‘total and
sufficient’ obedience to the essence of grundnorm, which in turn
provides efficiency in its practice and application.
However, it is also crucial for us to clearly differentiate between
‘validity’ and ‘effectiveness’. One can have effectiveness without
validity, but validity can never exist without effectiveness. The issue
on validity and effectiveness is usually reflected in the situation of
revolution or Coup D’état (taking over power by force). It can be
summarized that if a revolution is effective, then the new
regime/order shall be considered as valid and automatically a new
grundnorm (basic norm) is accepted.

On the other hand, if it is not effective, the act of revolution is

considered as treason and punishable.

In the case of Mitchell v DPP, the court had laid down 4

requirements or elements for a valid and effective revolution,
namely;
1. The government is firmly established administratively
2. The government is in effective control (conform by the people at
large)
3. The conformity must be due to popular support (not by force)
4. The new regime must not be oppressive and undemocratic

To illustrate Kelsen’s theory, in the case of The State v Dosso, the

court held that the new regime was validly created as it portrays an
effective control over the country. The basis behind the court’s
judgment was that there was no protest on the part of the people as
whole when the new government took over the power and imposed
martial laws.