This article is written by Zainab Arif Khan, student of Faculty of Law, Aligarh Muslim University.
Hans Kelson (1881 – 1973) was an Austrian jurist and philosopher, both legal and political. He is considered as one of the prominent and very important jurists of the 20th century; with highly influential effects on the jurisprudential and public law scholars. He was credited with reviving the original analytical theory in the 20th century with his ‘Pure Theory of Law’. He was the author of the 1920 Austrian Constitution, which to a large extent is valid up to date. Kelson was also a Professor of Law at the Vienna University. His book Reine Rechtslehre (Pure Theory of Law) was published in two editions; the first one in 1934, in Europe, and the second one, which was the expanded edition, was published in 1960, after he joined as a faculty at the University of California. His school of thought is also known as the Vienna School or the Functional School of Jurisprudence.
Pure theory of Law
It was rigorously insisted upon by Kelson to limit the scope of the study of law to its purest form. He was against the widening of the scope of jurisprudence by co-relating it with the social sciences such as politics, sociology, metaphysics, and the other extra-legal intradisciplinary subjects. The social subjects of history, politics, ethics, sociology, etc. were not devalued by the thinker, only separated form law. Its aim was to reduce chaos. The theory dealt with what law ‘is’ and not what it ‘ought to be’. This theory concerned with the theory of norms, and not with the effectiveness of the legal norms. Kelson wanted to separate law from all moral, social, ideal or ethical elements and wished to create ‘pure’ science of law which divorced all moral and sociological considerations.
Kelson’s pure theory of law is one of positive law which is based on normative order eliminating all extra-legal and non-legal elements from it. Also known as ‘Theory of Interpretation’, it emerged as a reaction against the vicious ideology which was corroding the jurisprudence and the legal theory of a totalitarian state.
Kelson opines that the State and law are not different but the same thing and that there is no difference between public and private law. Kelson’s pure theory of law is based on the basic norm that he called ‘grundnorm’.
Kelson’s pure theory of law has it pyramidical structure of hierarchy based on the basic norm of grundnorm. The word ‘grundnorm’ is a German word meaning fundamental norm. He has defined it as ‘the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity’. It is the grundnorm which determines the content and validates to other norms derived from it. But from where it derives its validity, was a question to which Kelson did not answer, stating it to be a meta-physical question. Grundnorm is a fiction, rather than a hypothesis as proposed by the jurist.
The Grundnorm is the starting point in a legal system and from this base; a legal system broadens down in gradation becoming more and more detailed and specific as it progresses. This is a dynamic process. At the top of the pyramid is the grundnorm, which is independent. The subordinate norms are controlled by norms superior to them in hierarchical order. The system of norms proceeds from downwards to upwards and finally closes at grundnorm.
The study of dynamics of law is also necessary because law regulates its own creation and Kelson’s theory includes it. Thus, according to Kelson in every legal order there will always be a Grundnorm of some kind.
Application of the theory of Grundnorm in India
Grundnorm, as defined by Kelson, is used to denote the basic norm, order, or rule which go on to form the basis for any and every legal system. This can be regarded as the source of the validity of positive law of that legal system.
The Indian Constitution is the paramount source of law in our country. The grundnorm, the basis of the legal system is the reason for validating the Constitution and it signifies that the Constitution is accepted by the legal system. It will be seen ahead, how the Constitution may be said to be the grundnorm.
There is a belief and a rule that the Constitution ought to be obeyed. The Constitution is the paramount source of law. All the laws made should be in consonance with the principles enshrined in the Constitution. The grundnorm only validates the Constitution and the norms derived from it. However, it does not dictate what the Constitution should contain and what not. It is believed by some that the grundnorm can undergo a change only owing to a political revolution.
The sources of Indian law can date back to as early as the ancient time. It is not an unknown fact that the history of India contains a very rich culture and heritage. The tradition of India remains unbeatable. In the ancient times, it was the divine principle of Dharma which governed all the activities of all the persons in the community and society. The concept of Dharma can be understood and accepted as the code of conduct which was to be observed by all. The King was the custodian of the Dharma. He was to follow the Dharma and ensure that the rules enshrined in it were followed. There were scriptures which were enjoined upon the King. He had the duty to rule and administer justice only in accordance with the rules of Dharma. In the event of nonobedience of the rules of the Dharma, the King was under the duty to impose sanctions. Thus, it can be inferred that the King also, along with the others, was subordinated to the Dharma. This setup was accepted and followed by all for the very survival of the society. Here, the theory of grundnorm can find its place, considering that the Dharma was the supreme law of the land in the ancient India.
The medieval and the modern periods of the Indian history saw shifts in the political and legal system of India. The advent of the British rule in India brought radical changes in the legal system. They sought to establish the British imperialism in the Indian soil. The British officers and people in authority rejected the ancient Indian principles of law based on the concept of the Dharma. The notions of the British jurisprudence gradually paved way and got embedded in the Indian legal system, through the principles of equity, justice and good conscience, and brought about the codifications of the various laws.
Post the attainment of independence in 1947, the major struggle of living as an independent nation had just begun. The nation was to be formed into a democratic nation based on the ideas of Justice, Liberty, Equity and Fraternity. It was then that the need of forming a basic and supreme law of the land was felt. The Constitution was framed and adopted. It came into existence on the 26th January of 1950.
The Preamble to the Constitution contains the beginning words, ‘We, the People of India…’, evidently specifies that it is us the people of India, who have resolved to ‘adopt, enact, and give to ourselves’, this Constitution; therefore, the Constitution holds a great importance. The people declare to be bound by this, without any exception. Thus, it can be clearly seen here, that the grundnorm has found its place even in the post-independence period of Indian history, as the test for the pre–supposition as demanded by the theory has been duly satisfied.
The Constitution in India is regarded as basic law of the land. This can be said due to the social acceptance and recognition that it gets. The other laws assume validity because they find their conformity with the Constitution. The institutions which are established under the Constitution, which are the Legislature, the Executive and the Judiciary are in-fact subordinate to the Constitution and they have to act in conformity with provisions of the Constitution. The legislative power of Parliament and that of the State Legislature is under subjection to certain limitations. The power is derived from the Articles 245 and 246 to make laws, and has to be exercised within the boundaries of the limitations which are outlined under Article 13 of the Constitution. Thus, the legal system is established for all laws enacted that trace their validity from a sole source, that is the paramount source of law, the Constitution. Here the principle of grundnorm again comes into play, as the organs of the government, namely, the Legislature, the Judiciary, and the Executive, are the sub-norms to the basic law, the Constitution.
The Constitution can be amended, but the procedure to amend it is lengthy and technical. Had it been too easy, there would be a constant grave danger of revolution and this would be derogatory to the authority of the Constitution. Had there been no provisions to amend, it would again not be democratic. Hence, there is a proper balance between the two poles. And this has been clearly laid down in the landmark judgement in the case of Keshava Nanda Bharti, that even amendments made under Article 368, cannot change the ‘basic structure’ of the Constitution. The amendments cannot be made to alter the framework and basic structure of the Constitution to the extent of changing its identity. This fact clearly indicates that the principle of grundnorm can be applied.
The Constitution itself contains provisions that clearly provide that any law which is in violation of its provisions is unlawful and is liable to be struck down. As contained in Article 13, which provides that all laws which were made either before the commencement of the Constitution, or are made after it, by any competent authority, which are inconsistent with the fundamental rights enshrined in the Constitution, are, to the extent of inconsistency, void. This again unveils the principle of grundnorm which says there has to be a basic rule. The Constitution is the basic and the ultimate source of law.
There is the theory of Rule of law clearly enshrined in the Constitution. As ensured by Article 14, all the citizens are equal and no one shall be discriminated on any basis. There is separation of power among the three organs of the government and the judiciary is free from any influence from the legislature and the executive. The basic underlying principle and the finality of the laws laid down in the Constitution discloses yet another aspect of the application of the concept of grundnorm in the Indian Constitution.
Article 21 lays down yet another provision for the protection of life and personal liberty. It states that a person shall not be deprived of his life and personal liberty for any matter except according to the procedure established by law.
The theory of grundnorm has been recognised and mentioned about in many cases in the Indian courts. Some of the examples follow.
In the case of Squadron Leader H. S. Kulshrestha v Union of India, the court held that ‘According to the theory of the eminent jurist Kelson, in every country there is a hierarchy of laws, and the highest law is known as the grundnorm of law. In our country the grundnorm is the Constitution.’
In yet another case of Abdur Sukur & Another v State of West Bengal & others, ‘…enshrined in the Constitution of India, which is the grundnorm of all Indian statutes.’
In another case of Om Prakash Gupta v Hindustan Petroleum Corporation Ltd. & Anr., it was again held that ‘Since the limits have been defined by the Constitution, they are, in jurisprudential term, ‘the grundnorm’.’
In another case of Sunil v State of M. P. & Another, it was again mentioned that, ‘The Constitution of India is the grundnorm – the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution.’
In the case of Government of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi the Supreme Court observed, ‘According to Kelson, in every country there is a hierarchy of legal norms, headed by what he calls as the ‘Grundnorm’. If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail. In India the Grundnorm is the Indian Constitution.’
Jurisprudence and legal theory are ever changing fields of study. They are dynamic and they constantly change with the changes in the society to adapt to the new and changing needs. The very emergence of the theory of positivists is in fact an outcome of such transitions. With the advancing developments in the field of contemporary sciences, the legal thinkers like Kelson were drawn to the inducement to learn and study law in its purest form, which is devoid of the metaphysical and extra-legal multidisciplinary subjects and their influence on law and legal systems. Kelson used this method and called it the ‘Pure Theory of Law’. He refused to include the effects of the social subjects of history, politics, economy and ethics to study the law. Though he did not deny their existence and importance, he merely did not wish to include their influence on the study of law. He kept law very simple.
Kelson based his pure theory of law on the basis of the concept of grundnorm which again was introduced by him. The grundnorm is the basis of all the laws and rules. It is the source of all laws, but to question about the source of such grundnorm was a metaphysical question, which was not to be dealt with.
The application of the concept of grundnorm is available to a considerable extent in the Indian context. Starting from as early as the ancient times, when the Dharma was the supreme law of the land, going on to the modern-day Constitution, which again is the paramount source of law. The post-independence era saw the beautiful rise of the Constitution which is the grundnorm of Indian laws and norms. The concept of the grundnorm has been very well recognised and accepted in the Indian legal system, for which, proper evidence is sought from the opinions and judgements pronounced by the Indian courts of judicature.
Thus, it can be concluded that the Indian Constitution is based on the ideal principles of Justice, Liberty, Equality and Fraternity, as laid down by the Preamble to the Constitution. This has been given to the people by their own selves. The Constitution is regarded as the paramount source of law, and all other laws derive their legality and applicability from it, indicating it to be the grundnorm.
- Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory (Central Law Agency, Allahabad, 9th edn., 2019).
- Prantik Roy, “Application of Kelson’s Theory in India” IRJCL Vol. 7 Issue 1 (2019)
- Constitution of India
- Cases from https://www.casemine.com/.
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