grundnorm

Hans Kelsen, in his Pure Theory of Law, explained a legal system as a hierarchy of norms. A norm is valid because a higher norm authorised its creation: a regulation because of a statute, a statute because of the constitution. The chain must end somewhere, and it ends in the grundnorm, which is not made but presupposed. It typically takes the form: the first historical constitution ought to be obeyed.

The grundnorm is valid only if the legal order based on it is by and large effective. When a revolution succeeds and the new order becomes effective, a new grundnorm takes its place; the Pakistan Supreme Court used this reasoning in State v. Dosso (1958). For India, writers debate whether the grundnorm is the Constitution or the basic structure that even amendments cannot alter.

Example

Kelsen would say the validity of the BNS traces back, through the Constitution, to a presupposed grundnorm that the Constitution ought to be obeyed.

See also

pure theory of law · legal positivism · basic structure doctrine · jurisprudence

Read more in the study notes

• Kelsen's pure theory of law and the Grundnorm (Legal Theory)
• What is law? Definitions, the idea of law and legal realism (Legal Methods)
• Hart's Concept of Law and Dworkin's challenge (Legal Theory)
• International law: nature, definition, origin and basis (Public International Law)
• Relationship between international law and municipal law (Public International Law)