Pure Theory of Law Hans Kelsen Positivist School

Grundnorm

It is a legal concept by Hans Kelsen, it’s like the most important rule in legal system. Kelsen believed it is the starting point of all other rules. As it is on top, it is not based on any other rule and can’t be questioned. it is the foundation for all the laws, it is the building block of a legal system. However, Grundnorm isn’t a real law in any legal system but it’s a theoretical construct used by legal philosophers to illustrate how legal systems are structured. For e.g. In India, the Indian Constitution is the Grundnorm. In U.S., the U.S. Constitution is considered as Grundnorm of the legal system.

According to Kelsen, laws are “ought propositions i.e. ‘norms’: ‘If X happens, then Y ought to happen’, or in other words, ‘if a person commits theft, he ought to be punished’. Law does not attempt to describe what actually occurs (‘is’) but only prescribe certain rules.

Every norm is an expression of an act of will that something ought to happen. Norm is a legal meaning attached to an act of will. The judgment that an act of human behaviour is ‘legal’ or ‘illegal’ is the result of a specific, namely normative interpretation.

“Norm” is the meaning of an act by which a certain behaviour is commanded, permitted, or authorised. A criminal code might contain the sentence: Theft is punished by imprisonment. The meaning of this sentence is not a statement about an actual event; instead, the meaning is norm: it is a command or an authorisation to punish theft by imprisonment. Similarly, legislative acts ‘create’ or ‘posit’ a norm.

“Ought” is the subjective meaning of every act of will, but not every act has also objectively this meaning and only if the act of will has also the objective meaning of an “ought” is this ought called a “norm”. The command of a gangster to turn over to him a certain sum of money has the same subjective meaning as the command of an income-tax official, namely that the individual at whom the command is directed ought to pay something. But only the command of the official has the meaning of a valid norm (i.e. objective meaning), binding upon the address individual because the official’s act is authorised by a tax law.

Therefore, the objective validity of a norm which is the subjective meaning of an act or will that men ought to behave in a certain way, does not follow from the factual fact i.e. from an ‘is’; but from a norm authorising this act i.e. from an ‘ought’. We interpret the killing of one individual by another (‘hang-man’) as the execution of a death sentence and not as murder, because our interpretation is based on the recognition that the act of killing constitutes the execution of a court decision that has commanded the killing as punishment. We attribute to the act of the court the objective meaning of an individual norm and in this way interpret the individuals who perform the act, as a court. We do this, because we recognise the act of the court as the execution of a statute (i.e. of general norms stipulating coercive acts). And we regard the act of legislation as the execution of the Constitution i.e. of general norms that authorise these individuals to establish general norms prescribing coercive acts.

Now, the act whose meaning is the Constitution has not only the subjective but also the

objective meaning i.e. character of a binding form, if – in case it is the historically first Constitution – we presuppose in our juristic thinking that we ought to behave as the Constitution prescribes. Such a presupposition, establishing the objective validity of the norms of a legal

order, will be called a “basic norm” (grundnorm). It is not established by a positive legal act, but is presupposed and this presupposition is the ultimate reason for the validity of a legal order (it is very important to note that grundnorm is not the Constitution, it is simply the presupposition) demanded by theory, that this Constitution ought to be obeyed. Kelsen recognised that the grundnorm need not be the same in every legal order, but a grundnorm of some kind there will always be, whether, e.g. a written Constitution, or the will of a dictator. The basic point is that those who are in effective control ought to be obeyed.

Finally, it is to be noted that a norm need not be only the meaning of a real act of will; it can also be the content of an act of thinking. For example, grundnorm is an imaginary will whose meaning is the norm which is only presupposed in our thinking. The grundnorm is not a positive norm or rule of law but is an extra legal or non-legal norm as it is not derived from any higher norm. Further, it itself is not valid or invalid, it is an assumption or a jural postulate (in comparison, Constitution is a positive or legal norm; an actual or valid norm). It only empowers and does not impose sanctions. It validates the rest of the legal system; one cannot therefore utilise the system to validate it.

Thus, Kelsen’s picture of a legal order emerges not just as a collection of ‘oughts’ but a hierarchy of norms starting from the basic norm i.e. grundnorm. A norm is valid only because it has been derived from or is ordained by another (superior) norm. This presupposes a hierarch of norms, each norm being valid on the presupposed validity of some other norm. At each level in this hierarchy norms can be generated or ‘concretised’. The last in the series is the grundnorm whose validity is purely hypothetical and who imparts validity to every other rule of legal order. The entire hierarchy of norm-making organs and the process of concretisation of norms is called by Kelsen the ‘Legal Order’ of a particular State. According to Kelsen, legal norms cannot be derived from conflicting authorities. For example, a judgment derives its authority from an Order in Council, the Order from an Act of Parliament, the Act of Parliament from the Constitution.

Also, there occurs a movement from the generality of norms to a process of individualisation of norms (e.g. ‘right to life’ is a general norm, and ‘right to education’ an individual norm because the latter can be subsumed under the former general norm). Kelsen also pointed out that the norms embodied in a statute are primary norms.

Validity and effectiveness of norms

The validity of a norm means that one ought to behave as the norm stipulates, while effectiveness of a norm means that one in fact does so behave. Thus, effectiveness is an “is- fact”, the fact that the norm is actually applied and obeyed. The validity is a quality of law; the so-called efficacy is a quality of the actual behaviour of men and not of the law itself.

A general legal norm is regarded as valid only if the human behaviour that is regulation by it actually conforms with it, at least to some degree. A norm that is not obeyed by anybody anywhere, in other words a norm that is not effective at least to some degree, is not regarded as a valid legal norm. A minimum of effectiveness is a condition of validity. Effectiveness is a condition of validity in the sense that effectiveness has to join the position a legal norm if the norm is not to lose its validity.

However, validity and effectiveness are different animus, and do not coincide in time. Thus, a norm is valid before it is effective, as is the case with a new statute before it has been applied.

Effectiveness of a legal norm attaches a sanction to a certain behaviour and thus qualifies the behaviour conditioning the sanction as illegal i.e. ‘delict’.

The validity of a norm is ascertained with reference to its authorising norm, which confers a power to create it and may also specify conditions for its exercise. Thus, a norm is valid which is authorised by a superior norm. This means that every norm (other than the grundnorm) is valid, not because it is, or is likely to be, obeyed by those to whom it is addressed, but by virtue of another norm imparting validity to it. Yet, the validity of each norm does depend on the effectiveness of the legal order as a whole.

Thus, Kelsen said that a legal order is regarded as valid only if it is ‘by and large’ effective. The basic norm which is the reason for the validity of a legal order refers only to a Constitution which is the basis of an effective legal order. Only if the actual behaviour of the individuals conforms, by and large, with the subjective meaning of the acts directed toward this behaviour (if, in other words, the subjective meaning is recognised as the objective meaning), only then are the acts interpreted as legal acts.

It will, therefore, be seen that with reference to a given norm, its validity and effectiveness have to be kept separate. Effectiveness of the order as a whole is a condition, not a reason of the validity of the grundnorm and of any individual norm. At the level of the grundnorm the question why is it valid, is meaningless; what is important is that the grundnorm should secure for itself a minimum of effectiveness i.e. a certain number of persons who are willing to abide by it. There must not be a total disregard of the grundnorm, but there need not be universal adherence to it. All that is necessary is that it should command a minimum of effectiveness. And, when it fails to do so, it ceases to be the basic of legal order, and any other proposition which does obtain support will replace it. Such a change in the state of affairs is said to amount to a revolution in law. This is because grundnorm is not itself the Constitution, but the assumption that the Constitution ought to be obeyed.

Austin v. Kelsen

For Austin, a law is a command backed by sanctions. Kelsen disagreed in two respects:

• In the Austinian sense, a sanction has a moral or psychological basis; the motivation by fear makes people to submit to law. Kelsen rejected the idea of command, because it introduces a psychological element into a theory of law which should, in his view, be “pure” (law is a de-psychologised command). In the Kelsenian sense, coercive act means forcible deprivation of liberty. There is no idea of fear involved, because the norms prescribe. The legal norm does not constitute a command, but a relation of condition and sequence.
  • In the Austinian sense, the sanction was something outside a law imparting validity to it. While, according to Kelsen, a sanction is in-built in every legal norm.

To Kelsen, the operation of the sanction itself depends on the operation of other rules of law; and further, the validity of a rule has nothing to do with its sanctions.

Thus, Austin would have said that the sanction behind the proposition, you ought not to steal, is that if you do steal, you will be imprisoned. To Kelsen one rule prescribes that if a man has committed theft, he ought to be brought on trial; another rule prescribe that if the jury bring in a verdict of ‘guilty’, the judge ought to pass sentence; and so on. In this way, the contract between law and sanction in the Austinian sense disappears.

Advantages of Kelsen’s theory:

1. It is applicable to all legal systems.

2. It’s an improvement of Austin’s theory.

3. According to kelsen, law need not to be a command.

4. Acc. To him, private law and public law are same.

5. Customs, precedents and legislations are all sources of law.

Criticism