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Critical Analysis Of The Concept Of Grundnorm

Hans Kelsen is known for the most rigorous development of a positivist' theory of law. His theory excludes the analysis of any ethical, historical, political, considerations and rather finds the essence of the legal order in the written or laid-down laws. The whole legal system is based on grundnorm or basic norm, through which various other statements of law flows. The basic rule might be based on some propositions, such as those of the sovereign, are to be obeyed.

The grundnorm can only be challenged by a political revolution. The theory of Hand Kelsen represents development in two directions. Firstly, it talks about the defined development of analytical positivism. Secondly, it marks the reaction against different approaches characterized in the twentieth century. The most significant feature of Kelsen's theory is grundnorm.

Grundnorm

Norms are regulations setting forth the behavior of a person and positive law is thus a normative an order regulating human conduct in a specific way. A norm is an “ought to 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 exemplifies its connection with a system of norms which it forms a part.

Frequently Kelsen comments on the most significantly peculiarity of law that regulates its own creation. That is, the creation of legal norms is authorized by other legal norms.[2], the decision given by a judge which creates a norm governing the circumstances, to which the decision is related, is authorized by the norms defining the courts' jurisdiction. Those norms may either be expressed in statute or they may be written in a constitution as more fundamental norms may define proper procedures for legislations. Going up the chain of the validity of the law, in order to find its root of title, we must reach the 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.[3] But, if we establish the validity of the legal norm, then we must be able to get back some ultimate norm which confers validity upon all the other norms. Hence, Kelsen calls it grundnorm or the basic norm.

Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system.[4]. Austin defines law as a command backed by a sanction. However, Kelsen disagreed in two ways. 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.[5] Secondly, according to Austin sanction was something that is outside the law imparting its validity.

To Kelsen such a statement is irrelevant, and it doesn't make any sense. 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.[6]

For Kelsen, the operation of a sanction depends on the operation of other rules of law. Kelsen's solution was regarding the hierarchy of oughts which is traceable to some initial, fundamental ought on which the validity of all others ultimately rests. Therefore, it is known as the basic norm or grundnorm.

The Principle Of Effectiveness

Kelsen's theory distinguishes between the principle of validity and the principle of effectiveness. According to him, every norm other than the grundnorm is valid, not because it is likely to be obeyed, but by virtue of another norm that imparts its validity. The efficacy of all the legal orders is a necessary legal condition for the validity of every single norm of the order. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way.[7]. Therefore, it will seem that, with reference to a given norm, its validity and effectiveness must be kept separately. Effectiveness of the whole legal order is a condition, not a reason for the validity of the grundnorm or any other norm.

Change Of The Basic Norm
It is just the phenomenon of revolution which clearly signifies the importance of the basic norm. Suppose a group of people attempts to cease power by force, in order to introduce a republican form of government and remove the legitimate government in a monarchial state. If they succeed, the new order begins to be efficacious because the behavior of the people was in conformity with the new order, and which is considered to be valid.

Analysis
It seems to me that Kelsen's theory is the best existing theory of positive law based on the concept of justified normativity. There is, however, a different concept of normativity, that of social normativity. An explanation of the law based on this concept will have no use for the concept of the basic norm. The basic norm is needed to bridge the gap between facts and norms i.e. between the is and the ought. But this gap exists only if norms are understood as justified norms.

Once they are understood as social norms then the gap disappears. The fact that the basic norm is not consciously presupposed by legal scholars and practitioners becomes, therefore, a considerable argument in favor of explaining the law in terms of social normativity rather than Kelsen's explanation in terms of justified normativity. The necessity to ascribe the legal scholars and practitioners a special point of view of the legal man and to regard them as to presuppose the basic norm in a special and professional way complicates Kelsen's theory still more.

An explanation in terms of social normativity is free of these complexities and should be preferred as being simpler. All the more so as Kelsen does never explain what the special sense in which lawyers and jurists is presupposed the basic norm. This omission may lead anyone to suspect that they regard the law as socially normative, as a fact about the society in which they live.

Conclusion
The scope of Kelsen's theory is completely different from that of Austin. According to him, the law can be defined in terms of certain norms. The whole legal system is interconnected with different norms and there is a basic norm that is known as grundnorm. All other norms are derived from the grundnorm. It is always constitutional in nature and although it is entirely formal, it forms the main basis of the legal system.[8]

In India, Kelsen's theory plays a vital role in the Indian Constitution. All the other laws derive their validity from the Indian Constitution. If any law is unconstitutional, it can be stuck down and declared to be null and void. Hence, Kelsen's theory plays a crucial role in the modern world also.'

End-Notes:

  1. “ought” here does not refer to moral obligation but simply to normative forms of legal propositions. See Kelsen Hans, WHAT IS JUSTICE, p. 235-44
  2. Cotterrell Roger, JURISPRUDENCE, Butterworths Lexis Nexis, 2nd ed., 2001, p. 104
  3. Doherty, Michael JURISPRUDENCE: THE PHILOSOPHY OF LAW, ed., Old Bailey  Press, 2nd ed., 2001, p. 98
  4. Freeman, M.D.A, LLOYD'S INTRODUCTION TO JURISPRUDENCE, Sweet & Maxwell, London, 7th ed., 2001,p. 314
  5. The norm is an ought, but the act of will is an is': Kelsen's, PURE THEORY OF LAW, pg. 5
  6. Dias R W M, JURISPRUDENCE, Aditya Books Private Limited, New Delhi; 5th ed., 1994 reprint, p. 361
  7. Supra note 6 at p. 118
  8. Morris R. Cohen, Philosophy and Legal Science', 32 COL. L. REV. 1103 (1932)

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