Kelsen's pure theory of law and the Grundnorm

1. Purity

Hans Kelsen (1881–1973), the Austrian jurist who drafted the Austrian Constitution of 1920 and later taught in the United States, set out the Pure Theory of Law (Reine Rechtslehre, 1934; second edition 1960) and General Theory of Law and State (1945). The theory is “pure” in two senses:

• it excludes ethics and politics: whether a law is just is a question for moral or political science, not for legal science;
• it excludes sociology and psychology: why people obey, and what effects law has, are factual questions.

Legal science describes norms and their relations, as geometry describes figures. Kelsen accepted Hume’s gap between “is” and “ought” and placed law wholly on the ought side.

2. The norm

A legal norm is the meaning of an act of will directed at the behaviour of others. Its typical form is a conditional: if A (a delict) occurs, then B (a sanction) ought to be applied by an official. Kelsen therefore treated the primary norm as one addressed to officials; the citizen’s duty is a derivative of the sanction. Law is a coercive order: this distinguishes it from morality and religion.

He rejected Austin’s command because a command depends on the actual will of a person; a statute remains valid after its makers are dead and when no one wills its application. Validity is not a psychological fact but the specific existence of a norm.

3. The hierarchy of norms (Stufenbau)

A norm is valid only because another, higher norm authorises its creation. A judgment is valid because a statute empowers the judge; the statute because the constitution empowers the legislature; the constitution because an earlier constitution provided for its making, or because it is the first constitution. Each step is both application of the higher norm and creation of a lower one. Only the top and bottom are pure (the basic norm only creates; execution of a sanction only applies). This dynamic picture explains why courts make law: a judgment is an individual norm.

4. The Grundnorm

The chain must end. The historically first constitution cannot be authorised by a positive norm, so legal science must presuppose a basic norm: roughly, that one ought to behave as the historically first constitution and the norms made under it prescribe. The basic norm is:

• not positive law: no one enacted it; it is a presupposition of legal thought (in later writings Kelsen called it a fiction, in Vaihinger’s sense);
• content-neutral: any content can be law, so long as the order is by and large effective;
• the source of unity: all norms whose validity traces to the same basic norm form one system.

Efficacy. Validity and efficacy are distinct, but a basic norm is presupposed only for a coercive order that is by and large effective. An individual norm does not lose validity because it is broken now and then; a whole order that ceases to be effective does.

5. Revolution and the courts

If a revolution succeeds, a new basic norm is presupposed; the old order loses validity. Courts in several countries used Kelsen to validate coups:

• State v. Dosso (Supreme Court of Pakistan, 1958). Munir C.J., citing Kelsen, held that a successful revolution is a law-creating fact and validated Iskander Mirza’s martial law.
• Uganda v. Commissioner of Prisons, ex parte Matovu (High Court of Uganda, 1966). Obote’s abrogation of the 1962 Constitution was treated as a successful revolution creating a new legal order.
• Madzimbamuto v. Lardner-Burke (Privy Council, 1968). After Rhodesia’s unilateral declaration of independence, the Privy Council refused to treat the illegal regime as lawful while the United Kingdom still asserted sovereignty; the Rhodesian courts had relied partly on Kelsen.
• Asma Jilani v. Government of the Punjab (Supreme Court of Pakistan, 1972) overruled Dosso, holding that Kelsen’s theory describes the legal scientist’s view and gives courts no warrant to legitimise usurpation; Yahya Khan was a usurper.

Kelsen himself said the theory explains but does not justify. Critics (J.M. Finnis, J.W. Harris) note that judges are participants, not observers, and that a court asked to bless a coup is making a moral choice the theory cannot make for it.

6. International law and monism

Kelsen argued that international and municipal law form one system (monism), and preferred the primacy of international law: the principle of effectiveness in international law is what authorises national legal orders, so the basic norm of the whole is international, roughly that states ought to behave as they customarily have. This contrasts with Austin, who denied international law the name.

7. Kelsen and Indian constitutional law

• Indian writers ask what the Indian Grundnorm is: the Constitution as enacted by the Constituent Assembly (which deliberately did not seek authority from the Indian Independence Act, 1947), or the sovereignty of the people expressed in the Preamble.
• The basic structure doctrine (Kesavananda Bharati v. State of Kerala, 1973 INSC 91) is sometimes described as identifying a Grundnorm, but that is loose. A Kelsenian basic norm has no content, whereas the basic structure is a set of substantive values the courts enforce against amendments. It is closer to Hart’s rule of recognition or to natural law than to Kelsen.
• Kelsen designed the first specialised constitutional court (Austria, 1920), with power to annul unconstitutional statutes. The hierarchy-of-norms idea explains Article 13 and judicial review: a lower norm inconsistent with a higher is void.

8. Criticism

• Purity is impossible. Choosing which constitution is “historically first” and whether an order is “by and large effective” are factual and political judgments.
• Sanction-centred. Like Austin, Kelsen distorts power-conferring rules into fragments of sanction norms; Hart’s criticism applies.
• The basic norm is empty. Hart (“Kelsen Visited”) and Raz said it adds nothing to the fact that officials accept the constitution; Hart’s rule of recognition is a social fact, Kelsen’s basic norm a presupposition.
• Morally inert. Natural lawyers object that a theory which counts Nazi enactments as valid law in the same sense as any other is incomplete.
• Defence. The theory is still the clearest account of validity as a chain of authorisation, and of why the courts of a new regime ask whether it is effective.

How this is examined

For a short note on the Grundnorm: purity, the norm, the hierarchy, the basic norm and its features, efficacy, and one sentence each on Dosso and Asma Jilani. For an essay on Kelsen, add monism, the Indian discussion and the criticisms, and use the table to compare with Austin and Hart.