GRUNDNORM.

THE CONTROVERSIAL SUPPORTING POINT

OF THE KELSENIAN POSITIVIST SYSTEM

(International Conference on Law and Social Order, vol. 3 (2-3 martie 2012),
Addleton Academic Publishers, New York, 2012, ISBN 978-1-935494-33-1)

BOGDAN CRISTIAN TRANDAFIRESCU

PhD Faculty of Law and Administrative Sciences
“Ovidius” University of Constanţa (Romania),

Motto:
“Give me a supporting point and
I can lift the whole earth!”
Archimedes

ABSTRACT: This study is an attempt to demonstrate, based on the works of the

renowned theoretician, Hans Kelsen, that the explanations provided by the various
schools of thought cannot exclude one another, that they cannot provide satisfying
answers and that, unfortunately, however elaborate a global vision of law may be, it
cannot provide a definitive answer. Particularly, it will also be an attempt to discover the
significance and the theoretical consequences of a fundamental notion in Kelsen’s work –
grundnorm.

Keywords: grundnorm, juridical norm, theory of law

1. Introduction
The particularity of juridical sciences is the fact that their object of study is a product of
human reason. In other words, the creator felt the need to study and explain their own
creation which proves the complexity of the juridical phenomenon. Beyond the
specialised juridical sciences, which are both global and integrating, there exist the
general theory of law and the philosophy of law. In the domain on the theory of law there
have appeared and developed various movements and schools of thought, providing
explanations which are different, yet validated by arguments for the same old problems.

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Hans Kelsen is part of the juridical positivist movement [1], not only representing it but
also being one of the pillars of this movement. Within juridical positivism Kelsen
established an independent trend – juridical normativism.
At the beginning of his main work (Pure Theory of Law) Kelsen attempts to establish a
theory of law “liberated” [2] and “purified” of each foreign element. A pure theory of law
must not allow itself to be contaminated by politics, ethics, sociology, history or any
other socio-humanistic science. The object of study of the theory of law can only be
positivist law, as an ensemble of juridical norms (even those which are no longer
effective) [3]. That is why the theory of law is required to be purely formal.
In essence, the cardinal points of H. Kelsen’s doctrine are the following:
a) The validity of the juridical norm originates from an exterior source.
b) Any juridical system is basically a hierarchy of norms within which each norm
must derive from a superior one.
c) Finally, the validity of each juridical norm must derive from a superior
fundamental norm (grundnorm). This fundamental norm is not susceptible to
be deduced but rather it must be postulated as initial hypothesis.
d) The task of the pure theory of law is to clarify the relations between the
fundamental norm and the norms which derive from it, without judging this
norm as being good or bad. This type of categorisation is specific to political
science, ethics or religion.
Some of these ideas will be further developed in this study.
We cannot leave these introductory considerations without revealing that Pure Theory of
Law is a logical and coherent construction, a genuine abstract system through which
Kelsen attempts to explain the juridical phenomenon once and for all.
An example of Kelsen’s eloquence is the manner in which he conceives the distinction
between the juridical norm and the moral norm, rejecting almost invariably the theories
of jusnaturalism and contractualism. The prevalence of moral norms upon juridical norms
claimed by jusnaturalism might be based only upon two hypotheses: either there exists a
supreme moral norm created by a supreme being (God), or there exists at least one
absolute moral norm universally accepted and abided by. Since the existence or
inexistence of God has yet to be demonstrated, the theory of law, since it claims to be a

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part of the scientific realm must reject the prevalence of the moral norm upon the
juridical one, the former being based on a norm of divine origins. As concerns the other
hypothesis, Kelsen demonstrates that no moral norm can be identified as being accepted
and respected in an absolute manner in all times and societies, given the fact that even the
imperative to respect human life is not absolute [4].

1.1 Grundnorm

1.1.1 The validity of the juridical norm

Kelsen justifiably conceives law as a hierarchic system of juridical norms. The validity of
each juridical norm ensues from the superior one, which assigns authority to an
institution of the state, allowing it to regulate certain social relations, and establishes the
adequate procedure to adopt juridical norms. The supreme law in a state is the
Constitution and the validity of a constitution is based upon the regulations comprised by
the previous constitution, regulations that allow for modifications, amendments and even
the enactment of a new constitution.
This manner of establishing the validity of juridical norms inevitably raises the question
concerning the validity of the first constitution, of the first juridical norm. On what
authority did someone adopt the first juridical norm? What is the legitimacy of the first
constitutional text? [5] In order to answer these logical questions, Kelsen introduces the
concept of grundnorm.

1.1. 2 Grundnorm – the basis for the validity of the entire system of juridical norms
Grundnorm does not establish the first legislative act in the strictly historical sense but
rather it is necessarily presupposed by that very act. The existence of a grundnorm is
necessarily presupposed, for without it the rest of the norms could not be explained. The
basic norm is an imperative according to which we, people should abide by the
Constitution in accordance to the indication of the legislative organ [6].
Unlike the norms of a law system, which are adopted by a competent organ of the state
according to pre-established procedures, the basic norm does not have a similar origin: it

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was neither adopted, nor does it have a positive existence, nor is it even part of positive
law. The basic norm is not the product of an invention. It is not arbitrarily presupposed in
the sense that there is the possibility to choose between different basic norms [7].
Moreover, a grundnorm does not have a material content and does not impose certain
concrete values (“do not kill”, “do not lie”, “respect your obligations”, etc.); it is only a
formal commandment that imposes the abiding by the constitutional norms, as well as by
the other juridical norms that derive from the Constitution.
We must admit that the manner in which Kelsen presents the concept of ‘basic norm’ is
liable to raise certain questions. Specialised literature justifiably required some
clarification. Who presupposes the basic norm? Is it possible to defend the presupposition
in a manner that is convincing? What difference does the presupposition make? [8]
The answer to the question “Who presupposes the basic norm?” is explicitly provided by
Kelsen himself – the pure theory of law [9]. Since the grundnorm is presupposed it means
that this process must take place within juridical science. However, this does not imply
that the grundnorm is a creation of juridical science because it would absolutely
contradict the spirit of Kelsen’s reasoning. The grundnorm is ‘transcendental’ in a
Kantian way, which means that it is a given without material content that conditions and
determines the appearance and development of law as an ensemble of juridical norms. In
other words, since there are juridical norms organised in law systems, than the
grundnorm has to exist as well.
By presupposing a grundnorm Kelsen risks transgressing the borders of juridical
positivism and entering a new domain, jusnaturalism. This danger was most certainly
perceived by Kelsen since he considered it quite necessary to introduce clear distinctions
between his conception and jusnaturalism.

1.1. 3 The grundnorm theory and the theory of natural law

Using his flawless logical reasoning, Kelsen demonstrates that despite superficial
appearances, the grundnorm theory is fundamentally distinct from jusnaturalism. If
jusnaturalism considers that the basis and at the same time corrective of law is an ideal of
juridical and moral norms and values which jusnaturalists believe can be identified with
the aid of reason (which means that we are talking about material values and precepts

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such as equality, freedom, respect for the human being and so on), the grundnorm does
not have a material content, being, as previously mentioned, only a formal imperative.
Jusnaturalism offers substantial bases, norms and material values which are sometimes
contradictory, whereas the basic norm is presupposed and formal [10].

2. Conclusions
The conclusion that can be drawn is that despite the tenacity and brilliant logic with
which Hans Kelsen intended to create a theoretical positive system to explain law, flaw
and contradictions are inevitable.
Kelsen claimed the necessity of purifying the theory of law by any foreign elements
pertaining to other socio-humanistic sciences (sociology, politology, philosophy, etc.) but
his laborious explanations tend to shape precisely a philosophical system. Moreover, the
technique of his reasoning, as well as the numerous references to ethics or religion, reveal
the humanistic formation of the author which the latter could not suppress.
All great philosophical systems that wished to provide global and irrefutable explanations
for our entire existence apparently seem to be coherent and flawless constructions, but the
entire edifice is based on a supporting point that proves to be debatable. If in Kant’s case
(we use this example because Kelsen was significantly influenced by Kantian thought)
the Achilles’ heel is the thing itself [11], in Kelsen’s case we believe that the weak point
is the grundnorm.
The grundnorm is a necessary product of the theory of the judicial norm’s validity and it
could not have been avoided. However, we believe that this basic norm creates a gap
between Kelsen and pure positivism. The grundnorm ensure the validity of the entire law
system but its sin is that it does not belong to positive law. The basic norm is
presupposed, necessary, “transcendental”. The simple use of this word, “transcendental”,
leads us further away from positivism. The grundnorm is exterior and at the same time it
constitutes the basis for the positive juridical norm, but don’t moral values and norms do
the same thing form a jusnaturalist point of view? Kelsen himself felt the need to clearly
demonstrate the fundamental distinctions between the theory of the basic norm and the
convictions of jusnaturalists. This only proves that Kelsen himself foresaw the inevitable
deviation from the strict line of positivism induced by the grundnorm.

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 REFERENCES

[1] This school of thought appeared at the same time with the formation of modern
national states. It is based on the postulate of the separation of law as it is from the law as
it should be. Juridical positivism does not take into account any ideal and considers law
to be a creation of the state, whose authority cannot be questioned. This trend only
recognises the value of juridical norms; we are talking about those juridical norms which
are effective in a given era and in a certain state. It does not wonder whether there is a
fair or unfair law, whether law is just or unjust. Generally, this conception considers law
to be the autonomous expression of the state’s will, being a phenomenon which is often
reduced to the arbitrariness of power or to the politics of force.
[2] Within contemporary juridical science, the positivist-analytical stand is based upon
the following theses: a) the laws are commandments of the human being; b) it is not
necessary to relate law to morals and law as it is to law as it should be; c) it is worth
studying the meaning of juridical concepts but it must be separated from the historical
research of the causes and origin of laws; d) the juridical system is a “closed” logical
system from which one can deduce correct juridical decisions through logical means,
based on established juridical norms, without taking into consideration social purposes,
politics and moral regulations.
[3] Hans Kelsen, Doctrina pură a dreptului, Humanitas, 2000, pp. 13-14.
[4] For a detailed analysis of the relations between the juridical norm and the moral norm
see Ana Rodica Stăiculescu, Bogdan Cristian Trandafirescu, “The Juridical Norm and the
Moral Norm”, The 6th International Conference of PhD students, University of Miskolc,
Hungary, 12-18 august 2007, Published by University of Miskolc, Innovation and
Technology transfer centre, 293-298.
[5] “If we ask why the criminal code is valid, the answer is that it is valid because it was
emitted by a legislative institution and the latter is credited through a norm of the state’s
Constitution to establish general norms. If we ask why de Constitution of the state is
valid, from which ensues the validity of all general norms and the validity of all
individual norms, which are based on the general norms, then we ask why the norms that
produce the general norms are valid and we could perhaps get to an older state

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Constitution […]; in other words we get to a first historical state Constitution […].” Hans
Kelsen, op.cit., p. 242.
[6] Hans Kelsen, op. cit., p. 244
[7] Ibidem, p. 243.
[8] Uta Bindreiter, Why Grundnorm? A Treatise on the Implications of Kelsen's Doctrine,
Kluver Law International, 2002, p. 75.
[9] Hans Kelsen, op. cit., p .244.
[10] Hans Kelsen, op. cit., pp. 266-271.
[11] According to Kant, the thing itself cannot be known, yet it can be thought of. The
thing itself cannot be known because we, people apply our own senses, categories and
judgments to reality itself and what we obtain is nothing more than a reflection of this
reality, according to our conditionings. Kant also claims that we cannot state anything
about the thing itself but since we know that our reality originates from it we do not apply
the category of causality to it, therefore we do know something about it. Although these
contradictions cannot annihilate the Kantian thought they do alter its perfection.