The Grundnorm has no rule behind it. Its validity has therefore to be assumed for the purpose of theory, which is why it is said to be “Initial hypothesis”, ‘the postulated ultimate rule according to which the norms of this order are established, annulled, receive or lose their validity.

The Pure theory of law is a theory of positive law. The “pure” theory of law means that it is concerned solely with that part of knowledge which deals with law, excluding from such knowledge everything which does not strictly belong to the subject matter law. Analytical Positivism has been restated, developed and put on a theoretical philosophical basis in our own time, by the very influential theory of Hans Kelsen. Basically Kelsen’s thought is akin to that of Austin, although Kelsen, when he began to develop his theories was, as he later acknowledged, quite unaware of Austin’s work. The philosophical parentage of the “Vienna School” differs, however, greatly from Austin’s utilitarianism. The philosophical basis of Kelsen’s thought is Neo- Kantianism. This links Kelsen with the Neo- Kantian inspiration of Stammler and Del Vecchio, but the conclusions drawn by Kelsen and “Vienna School” from Neo- Kantian premises are radically opposed to those of these two jurists. 

The essential foundations of Kelsen’s system may be enumerated as follows

(1) The aim of theory of law, as of any science, is to reduce chaos and multiplicity to unity.

(2) Legal theory is science, not volition. It is knowledge of what the law is, not of what the law ought to be.

(3) The law is normative, not a natural science.

(4) Legal theory as a theory of norms is not concerned with the effectiveness of legal norms.

(5) A theory of law is formal, a theory of the way of ordering, changing contents in a specific way.

(6) The relation of legal theory to a particular system of positive law is that of possible to actual law.

Grundnorm

Kelsen says that legal norm derives its validity from an external source, and imposes a sanction if certain thing is done or not done in conformity with it. For Kelsen the norm does not constitute a command like Austin but a relation of condition and sequence. “If A is done, B ought to happen”. This “ought” is the legal sanction. The relation thus constituted is one of subordination, and any given legal system constitutes a hierarchy of norms, each of which must be derived from a superior source. A particular norm, therefore, is ‘authorised’ if it can be subsumed under a more general norm. The conjecture which this opens up is the end of the progression. Kelsen’s solution was that in every legal order a hierarchy of ‘oughts’ is traceable back to some initial fundamental ‘ought’ on which the validity of all the others ultimately. This he called the Grundnorm, the basic or the fundamental norm. Ultimately every legal norm in a given legal order deduces its validity from a highest fundamental norm, Grundnorm. According to Kelsen:

“…the basic norm must be formulated as follows: Coercive acts sought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe.”

The Grundnorm has no rule behind it. Its validity has therefore to be assumed for the purpose of theory, which is why it is said to be “Initial hypothesis”, ‘the postulated ultimate rule according to which the norms of this order are established, annulled, receive or lose their validity.

The whole legal structure thus formed by Kelsen resembles a pyramid. The law gradually unfolds in a gradual process from the highest norm, which is also the most abstract, general and purely norm-giving, to the lowest, which is completely individualized, concrete and executive. The validity of norms flows from the peak to the base. The validity of the Grundnorm which is at the peak is by virtue of it being a hypothesis or fiction. The only condition required for a Grundnorm to be at that peak i.e. to continue to be a Grundnorm is that it must command a minimum of effectiveness.

Relation Between Validity and Efficacy

Kelsen’s view was that every norm other than the Grundnorm is valid, not because it is, or is likely to be, obeyed by those to whom it is addressed, but by virtue of another norm imparting validity. Thus, a norm is valid before it is effective; as is the case with a new statute before it has been applied. Kelsen said- 

“It cannot be maintained that, legally, men have to behave in conformity with a certain norm, if the total legal order, of which that norm is an integral part, has lost its efficacy. The principle of legitimacy is restricted by the principle of effectiveness.” 

He later modified it somewhat to the extent that the legal order has to be ‘by and large’ effective. So a norm’s validity and its effectiveness have to be kept separate. These norms depend on the efficacy of the legal order as whole. Thus when a legal order is inefficacious, all the norms cease to be valid. The validity of a norm is only controlled by efficacy of the legal order i.e. efficacy is just a condition for the validity, not a reason, for validity of its constituent norms: a condition sine qua non, but not a condition per quam. 

The question of why Grundnorm is valid at its level is meaningless, as it a hypothesis. “To seek legal validity of the basic norm would involve the impossible operation of pulling oneself by one’s own boot-straps.” It is however for a Grundnorm to secure for itself a minimum of effectiveness i.e. a certain number of people who are willing to abide by it in order to sustain its position as the basic or fundamental norm of a legal order. The validity of a Grundnorm, similar to the norms is dependent on the efficacy of whole legal order. It is however not a reason but only a condition for validity.  

Efficacy of Grundnorm

It is important for a Grundnorm to secure for itself a minimum of effectiveness. The level of efficaciousness required is not that of universal adherence but a certain number of persons should abide by it. Meaning to say, there must not be a total disregard of the Grundnorm. If it fails to have some effectiveness, it ceases to be the Grundnorm i.e. basic or the fundamental norm of a legal order. For e.g. if there is a Grundnorm that the will of Mughal Emperor ought to be observed in India, during 15th Century B.C. may have been a useful basic norm for that period. But this basic norm would make no sense in today’s India as it has no efficacy.  So efficacy of Grundnorm determines its continuity as the basic norm. Once it loses its efficacy, it ceases to be the basis of legal order, and any other proposition which does obtain support will replace it. Such a change in state of affairs is said to amount to a revolution in law. This is because the Grundnorm is adapted to that state of affairs and not vice versa. It is just a theory adapted to an existing situation. It follows, therefore, that a change in the situation involves a revolution in the theory adapted to it.

Where a revolutionary change takes place, breaking the chain of continuity from the historically first constitution then in place, the substantive, although not the hypothetical, effect of the Grundnorm in the given situation will change. The practical efficacy of the new order will lead to the supposition of a changed Grundnorm authorizing a revised chain of norms. An example of such a situation is the Unilateral Declaration of Independence by Rhodesia from the British Commonwealth.

By LawZ Bureau