Kelsen- Grundnorm

To what extent do you agree that Kelsen’s Grundnorm is the most important concept of
twentieth-century jurisprudence?

Hans Kelsen is a legal positivist and has created a theory of legal positivism called the ‘pure
theory of law’. He aimed at creating an objective and "pure" theory of law that focused
solely on legal norms or factors that are strictly legal. Kelsen presented the idea that law is a
system of norms that derive their validity from higher legal norms called basic norms or
Grundnorm, and should be analysed independent all social aspects thus, he has taken out
political, economic, historical and other sociological aspects out of his theory.

Kelsen’s Grundnorm or basic norm is regarded as one of the most important concept of
twentieth-century jurisprudence and to assess whether this is true, it is important to
understand the significant Kelsen’s theory and compare it with other theories.

Kelson defined Grund norm as transcendental epistemological postulate which means that
it is a theory of knowledge outside of law and is not based on some logic or fact rather it is a
presupposition that the historically first constitution is valid and thus this Grundnorm gives
validity to all other norms. For example, in countries like UK where there is no constitution, it
is assumed that coercive Acts ought to be applied in accordance with the customs and those
customs are presupposed to be valid and thus they are the basic norm.

Grundnorm is central to Kelsen’s theory of law. According to Kelsen law is a system of norms
and these norms trace their validity to the Grundnorm which provide legal validity to all
legal norms making the legal system consistent and coherent. One needs to go up the chain
of hierarchy to find the root title and while tracing that root title we must come to an end
and that last or highest norm on the hierarchy is the grundnorm.

The significance of the grundnorm is based on its ability to account for the normative
structure of law.

‘normative’ means ‘a matter of rules’

According to Kelsen the grundnorm is a way of explaining why laws are valid and why people
should obey them, and which means that it how laws get their authority and why they are
binding. This means that the Grundnorm makes all other norms legitimate and thus binding
and without such legitimacy people may not obey laws. This shows the significance of the
grundnorm it not only explains how laws get their authority but also makes them legitimate.

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Kelsen has kept his grundnorm theory autonomous by excluding all moral, political,
historical, and other sociological consideration from his theory making law autonomous and
a self-sustaining system. By excluding sociological content from the analysis of law the
grundnorm makes the legal system consistent and coherent because for example a person’s
moral understanding or political consideration can be different from others and if these
factors were included in the analysis of law, it would make the legal system inconsistent
because of different ideologies. Thus, the grundnorm makes the law consistent and
coherent.

Additionally, the legal positivism theory which asserts that law and morality are separate,
has significantly been influenced by the concept of grundnorm and is an important theory in
the 20th century.

HLA Hart, who is a legal positivist, developed ‘the rule of recognition’ in the mid-20th
century. His theory is said to have been influenced by Kelsen’s theory of Grundnorm. Both
theories seek to find the source of validity of norms. However, unlike Kelsen, Hart took the
view that legal officials are the ones that identify the validity of legal norms not the first
constitution or custom that ought to be valid. This shows that Kelsen’s theory has been very
influential in the 20th century.

However, although the Grundnorm theory has been significant and influential it has still
been criticised. Lord Lloyd has criticised the grundnorm theory for being too vague and
complicated. This is because it is very difficult to trace every norm back to its basic norm in
every legal system especially a legal system like UK where there isn’t a constitution, and the
validity is dependent upon tracing back to customs. And if there are two or more norms at
the top of the hierarchy it become difficult to determine which one takes precedence
because Kelsen hasn’t provided an explanation of what would happen in such
circumstances.

Furthermore, another major critique is that the Grundnorm idea doesn’t have any physical
or concrete existence rather it’s an idea that is not based on observable facts. This is because
the grundnorm is a hypothetical presupposition which makes it abstract. And due to this it
has been critiqued for lacking any strong ground or power.

In contrast, Hart’s rule of recognition is perhaps a better theory compared to the grundnorm
theory of Kelsen. Even though Hart’s theory has been influenced by Kelsen’s theory, hart
rejected the complicated hypothetical idea of grundnorm. Hart suggests that the validity of
norms should be identified by legal officials. This is a concrete explanation of validity of
norms because it’s based-on facts of law and logic of officials making it more appealing.

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Hart’s theory makes it easier to find the validity of norms and creates a stronger ground of
validity because it’s based on facts and logic. Hart’s theory is more grounded in the realities
of how legal systems operate.

Additionally, it can also be argued that because Kelsen excluded moral consideration from
his theory, the justice of these norms cannot be evaluated and due to this immoral and
unjust norm may exist only because they conform to a higher norm that makes them valid.
This makes the grundnorm theory very dangerous because it may give legality to unjust or
oppressive norms without a way of challenging such norms. And this would make the law
ineffective.

However, a better alternative theory to solve this issue is Ronald Dworkin’s theory of law as
integrity. According to Dworkin moral principles of justice and fairness play an important role
in the analysis of law and so directly challenges Kelsen’s separation of law a morality.
Dworkins theory is especially influential in debates about human rights laws. His theory
removes the possibility of oppressive unjust legal norms becoming legitimate and thus due
to this it is a better theory compared to the grundnorm idea.

In conclusion, the grundnorm theory remain an important concept in the 20 th century but it
isn’t the only theory that’s important. It has played an important role in shaping positivist
theories such as that of HLA hart as seen above. It also makes the law consistent and
coherent by excluding all sociological factors from the analysis of law. And has been
influential in the understanding of how and why law has authority and why it should be
obeyed. However, it has certain flaws as seen above and due to this it should be considered
alongside other significant theories such as that of Hart and Dworkin as seen above. And
thus, even though the grundnorm theory is important in the 20 th century it isn’t the only
idea and other ideas should be considered as well.

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Kelsen- Grundnorm

‘Kelsen found the key to jurisprudence before anyone else, including Hart. That key is the
idea of a Grundnorm. Without it, we cannot make sense of law.’ Discuss.

Similar answer as above with some additions.

Hart’s rule of recognition offers a more realistic and empirical (based on observation or
experience rather than pure logic) approach for legal authority or validity.

Hart considers the of social realities of how law is practiced and applied by focusing on legal
officials and their practices. However, Hart’s theory lacks the purity and autonomy of law,
but it still makes the legal system more flexible so that the law is able to adjust with the real-
world legal system. While on the other hand Kelsen’s theory is rigid and may not be able to
adapt to new challenges that occur due to the dynamic nature of the world and legal
systems. This is because validity of norms depends on the grundnorm and if such grundnorm
doesn’t exist then norms directed at new challenges won’t be valid and thus won’t have any
authority.

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‘Kelsen’s theory has no connection to social reality. As such, the attractiveness of his
normative theory of law fails to deliver.’ Critically discuss.

Similar question as above with some additions.

Introduction

Kelsen sought to establish a normative framework for understanding law as a self-contained

Kelsen believed that to maintain legal systems purity and coherence the analysis of law
should be free from external influences, such as sociological or political considerations.

Criticism

Legal realists, have criticised Kelsen’s theory. Legal realists believe that law is a tool used by
society to achieve certain outcomes and not just a set of norms. And to exclude social
content from law is to misunderstand its true nature. Legel relists argued that sociological
consequences and ways in which rules are applied should be considered in the analysis of
law and because an analysis based on formal validity is incorrect due to the role of social
factors that play a major role in the legal system such as justice and fairness because without
these factors and a legal analysis solely based on formal validity could possibly become
oppressive if for example one unjust norm is given validity due to a grundnorm, without
considering its social impact, it would become legitimate but in reality it would be wrong to
implement such a norm and therefore, this would make law ineffective.

Attractiveness

However, those who see value in separating legal analysis from social and political concerns
appreciate Kelsen’s theory.

Kelsen’s theory by excluding all social and political factors from legal analysis allows the law
to become autonomous which allows for a more objective and consistent understanding of
legal systems. It also provides a clear and coherent framework for legal reasoning by
focusing on the internal validity of norms. The theory removes subjectivity and
inconsistencies of social and political influences from legal analysis. This purity is useful in
constitutional courts and international law where rule of law and consistency of laws are
prioritised.

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Criticism- Unedited

However, it can be argued that Kelsen’s theory fails to account for the way law operates in
society because he ignored the social reality of law. This is because law is a tool that regulate
human behaviour and resolves issues and conflicts. By failing to consider social factors and
only depending upon formal validity to analyse law, the law would become ineffective.

For instance, according to sociological approaches, law must be understood within its social
context. Law functions as a mechanism for social control and is influenced by social norms,
economic conditions, and political power. In this view, Kelsen’s formalism is inadequate
because it ignores the social forces that shape the creation, interpretation, and enforcement
of legal norms.

By focusing solely on the formal validity of legal norms, Kelsen’s theory overlooks how law
can be manipulated by those in power to serve their interests. In this sense, Kelsen’s theory
may be seen as naively optimistic in its view of law as an autonomous system, when in
reality, law is often a reflection of political and social dynamics.

H.L.A. Hart have attempted to bridge this gap by offering theories that recognize both the
normative structure of law and its social dimension. Hart’s rule of recognition, for instance,
grounds legal validity in the social practices of legal officials, thereby acknowledging the role
of social reality in the functioning of legal systems. Hart’s approach strikes a balance
between Kelsen’s formalism and the insights of legal realism, providing a more flexible and
pragmatic framework for understanding law.

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‘In the end, Kelsen simply could not explain what he meant by the Basic Norm. This shows
that his whole theory is flawed.’ Discuss.

Similar question to above with some additions.

Introduction

Basic Norm is a hypothetical presupposition that validates the entire legal order and unlike
other norms, the basic norm is not a written law or rule.

Critics argue that Kelsen’s theory is inherently flawed because he couldn’t clearly define and
explain what he means by the Basic Norm.

According to Kelsen Basic Norm as a necessary foundation for the legal system to justify the
validity of legal norms and without this presupposition the norms wouldn’t be accepted as
binding because they wouldn’t be considered valid.

Criticism

Vagueness and Lack of Explanation

Kelsen defined the Basic Norm as a presupposition, but he didn’t explain what the actual
content of basic norms. This means that Kelsen didn’t give a concrete or clear explanation of
what the basic norm really means. Firstly, there could be multiple norms at the top of the
hierarchy, however, Kelsen didn’t explain which one would take precedence. Kelsen also
didn’t explain what constitutes to a basic norm for instance does it have to be an old rule, or
an old custom at the top of the hierarchy. Nor did he explain whether they must be written
or not.

Additionally, Hart critiqued the basic norm idea by saying that it relies on abstract and there
is no empirical foundation of the idea. Its just a hypothetical presupposition with no clear
definition and could mean different thing in different legal systems.

It also has no connection to reality, Kelsen failed to take into account how social factors play
an important role in the legal system. While Harts rule of recognition understood this and
took a better view.

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What justifies the basic norm- Circularity

Kelsen has made a circular form of reasoning. This is because, Kelsen presupposes that the
basic norm provides validity to legal norms but also assumes that the existence of legal
norms provide validity to basic norms. This means that the basic norm cannot be validated
independently and thus the whole structure is circular as it comes back to the same point.

This circularity suggests that Kelsen’s theory may be trapped in a form of self-referential
logic, where the Basic Norm is required to validate the legal system, but the legal system is
required to justify the Basic Norm.

Applicability to International Law- Unedited

Kelsen’s Basic Norm has been applied successfully to understand the validity of international
legal systems. In contexts where there is no single overarching legal authority (as in
international law), the Basic Norm provides a way to explain how legal norms can still exist
and function. This application demonstrates that Kelsen’s theory has utility beyond national
legal systems, especially in global contexts where formal hierarchies are absent.