Grundnorm by Hens Kelsen || Jurisprudence ||
In this article, we will discuss the topic Grundnorm given by Kelsen in his pure theory of law. The Pure Theory of law by Kelsen has been discussed in our other article. Here we will discuss what is Grundnorm? what is the norm, etc?
It is a concept in the Pure Theory of Law created by Hans Kelsen, a jurist, and legal philosopher. Kelsen has used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. The theory is based on a need to find a point of origin for all law, on which basic law and the constitution can achieve their legitimacy.
Kelson’s legal system is one single unit and is a normative legal system or order. Norms are those, which regulate human conduct and human behaviour in a society. According to Kelsen, laws, and rules are norms. These norms in a normative legal system are of a hierarchical nature. There is clear-cut order or satisfaction in the legal system. One cannot interchange the position of a norm in this hierarchy.
Every norm is a hierarchical system, that derives its existence and validity from its superior norms. The highest norm in this legal system is called basic norms or Grundnorm. At the top level of such hierarchy, there is to be a basic norm or Grundnorm. This basic norm does not derive any existence or validity from any other source therefore it is supreme.
In the above level, sub-delegation is to be in accordance with the delegated legislation. Delegated legislation is to be in accordance with the Act of Parliament i.e. Parent Act and this act should be in accordance with the Constitution. Thus legality or validity of each norm is to be decided by the Higher norm as well as the rest of the higher norm including Grundnorms. The position of the Grundnorm in this hierarchy is supreme as it doesn’t derive its validity and existence from any other sources. Thus, it is Suei Generis means it stands it’s own.
Every norm in this legal order is to be tested for legality and validity from the basic norm thus basic norm could not be tested by any external source. In every legal system, Grundnorm is self-existed. It doesn’t come from any other sources then its validity and legality couldn’t be judged. Thus, Grundnorm is immune to any kind of scrutiny.
What is the Norm?
Norm means a standard of behaviour. Standard in its sense that human beings ought to behave or ought not to behave in society. In this juncture ‘ought’ proposition came to be incorporated or injected in the realm of positivism. Here the law is as implied ‘ought’ proposition came to be incorporated or injected in the realm of positivism. Here the law is as implied ‘ought’ proposition contradictory thing. Kelsen explains this ‘ought’ in a positivist sense and says that “yes it is an ‘ought’ it is a ‘legal’ ought and not a ‘moral’ one.
In Jayalalita v. Union of India (1994) Supreme Court held that the Constitution is a supreme rather than a mandate of public. Here, in this case, K.K. Venugopal, the advocate for Jayalalita contended that Jayalalita and her party get the brutal majority and it is the mandate of the people, which is superior, and so she cannot be removed. The Supreme Court rejected the contention and said that the Constitution is Supreme.
So in India, a basic norm could be termed to Constitution.