Kelsen ‘ought’ to differ on ‘is’!

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by

CJLT NLIU

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‘Grundnorm’ just like any other word or term ‘ought’ to refer to a particular phenomenon as perceived by the user, however labelling a constitution as the grundnorm ‘is’ a misnomer.

[By Shaurya Chopra, Fourth Year B.A. LL.B. (Hons.) student at NLIU, Bhopal]

Background – The Pure Theory

Hans Kelsen1 expounded one of the most successful positivist theories of law. His Pure Theory was based on the premise that a theory of law must be distinguished from law itself.2 A theory of law should be general, and therefore it cannot be bothered by facts like ethics, history, sociology, etc.3 For Kelsen, knowledge of law means a knowledge of ‘oughts’ devoid of any ‘is’. In other words, it is a knowledge of norms. In contrast to Austin, for Kelsen, law is not a ‘command’ backed by sanction. Pure theory regards law as the primary norm which stipulates the sanction.4 Kelsen elaborates:

‘Law is a de-psychologised command, a command which does not imply a ‘will’ in a psychological sense of the term . . . a rule expressing the fact that somebody ought to act in a certain way, without implying that anybody really ‘wants’ the person to act in that way’.5

It consists of two components primarily: (1) a dynamic system in which fresh norms are constantly created on the authority of (2) a static system consisting of a basic norm, or in German, the grundnorm, which is at rest and determines the content of those derived from it, in addition to imparting validity to them.6 Each norm which derives validity from the grundnorm provides validity to the norms below it and so on. However, adherence to the grundnorm is a sine qua non for the validity of any norm. The effect is that a particular norm is valid as long as it can be subsumed under a norm which is more general than itself.7

What is the ‘Grundnorm’?

Is it a constitution? Is it a written document of some sort? Is it an oral agreement? Again, I would like the reader to refer to the previous section, the pure theory of law tries to eliminate facts completely from the equation, that is why it’s called the ‘pure’ theory. Kelsen’s idea is that in every legal order, no matter where one begins in the hierarchy of norms, all norms can be traced back to some initial fundamental norm or the grundnorm.8 As to whether a constitution can be a grundnorm, he said:

‘d) Transcendental-logical Presupposition

To understand the nature of the basic norm it must be kept in mind that it refers directly to a specific constitution, actually established by custom or statutory creation, by and large effective, and indirectly to the coercive order created according to this constitution and by and large effective; the basic norm thereby furnishes the reason for the validity of this constitution and of the coercive order created in accordance with it. The basic norm, therefore, is not the product of free invention. It is not presupposed arbitrarily in the sense that there is a choice between different basic norms when the subjective meaning of a constitution-creating act and the acts created according to this constitution are interpreted as their objective meaning. Only if this basic norm, referring to a specific constitution, is presupposed, that is, only if it is presupposed that one ought to behave according to this specific constitution-only then can the subjective meaning of a constitution-creating act and of the acts created according to this constitution be interpreted as their objective meaning, that is, as objectively valid legal norms, and the relationships established by these norms as legal relations.

In presupposing the basic norm referring to a specific constitution, the contents of this constitution and of the national legal order created according to it is irrelevant-it may be a just or unjust order; it may or may not guaranteee a relative condition of peace within the community established by it. The presupposition of the basic norm does not approve any value transcending positive law….

….Kant asks: “How is it possible to interpret without a metaphysical hypothesis, the facts perceived by our senses, in the laws of nature formulated by natural science?” In the same way, the Pure Theory of Law asks: “How is it possible to interpret without recourse to meta-legal authorities, like God or nature, the subjective meaning of certain facts as a system of objectively valid legal norms describable in rules of law?” The epistemological answer of the Pure Theory of Law is: “By presupposing the basic norm that one ought to behave as the constitution prescribes, that is, one ought to behave in accordance with the subjective meaning of the constitution-creating act of will-according to the prescriptions of the authority creating the constitution.” The function of this basic norm is to found the objective validity of a positive legal order, that is, to interpret the subjective meaning of the acts of human beings by which the norms of an effective coercive order are created, as their objective meaning.’ 9

Kelsen himself, therefore, refers to the grundnorm as being the presupposition that the constitution ought to be obeyed. It is the underlying understanding that one ought to obey this document (or the presupposition of it), not the document itself. It does not concern itself at all with the contents of the constitution – whether it has principles of rule of law or separation of powers is immaterial. It transcends empirical reality, provides rational and hierarchical basis of legal norms (not moral) and is an assumption that it exists as coherently but cannot be proved as it is hypothetical. As Dias elaborates:

‘The Grundnorm is not the constitution, it is simply the presupposition, demanded by theory, that this constitution ought to be obeyed. Therefore, the Grundnorm only imparts validity to the constitution and all other norms derived from it, it does not dictate their content.’ 10

There may be multiple grundnorms or grundnormen, as is the case with Britain, where the fount of validity rests with statute, precedent and immemorial customs.11 However, there cannot be conflicting grundnormen for the sake of having a unified theory.12

When a grundnorm ceases to derive a minimum amount of support, it ceases to be the basis of the legal order, and the proposition which obtains support will replace it.13 That, according to the theory, amounts to a revolution in law.14

Lacking in ‘Ought’ – The Indian Misnomer

In India, the question of grundnorm is lagging because the understanding of the concept is lacking in judicial thought. The majority of cases that one comes across in the Indian jurisdiction regard the constitution as the grundnorm, which couldn’t be further from the Kelsenian understanding. As we have already tackled the question of whether a constitution can be labelled as the grundnorm in the pure theory, let us now see how the Indian understanding is a galaxy away from Kelsen.

The latest case that one can find at the time of publication of this piece regarding grundnorm is Lombardi Engineering Limited v Uttarakhand Jal Vidyut Nigam Limited (2023)15. The Supreme Court, while considering the validity of an arbitration agreement, relied on all previous cases which had regarded and labelled the constitution as the grundnorm. Therefore, the Supreme Court disregarded Kelsen’s own classification of the grundnorm as a Transcendental-logical Presupposition.16 The relevant parts of the court’s remarks for our purposes are as follows:

‘79. Our Constitution is the paramount source of law in our country. All other laws assume validity because they are in conformity with the Constitution. The Constitution itself contain 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.

80. In the aforesaid context, we must look into view decisions of the High Courts explaining the theory of Grundnorm.

(i) In the case of Squadron Leader H. S. Kulshrestha v. Union of India, 1999 SCC OnLine All 270, 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.’

(ii) In another case of Abdur Sukur v. State of West Bengal, 2019 SCC OnLine Cal 5455, the court held that ‘…enshrined in the Constitution of India, which is the grundnorm of all Indian statutes.’

(iii) In Om Prakash Gupta v. Hindustan Petroleum Corporation Ltd. & Anr., 2009 SCC OnLine Raj 1381, it was again held that ‘Since the limits have been defined by the Constitution, they are, in jurisprudential term, ‘the grundnorm’.’

(iv) In Sunil v. State Of M.P. & Another, 2016 SCC OnLine MP 8551, 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.’

(v) In the case of Government of Andhra Pradesh v. Smt. P. Laxmi Devi, (2008) 4 SCC 720, this 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.’…

…84. The concept of “party autonomy” as pressed into service by the respondent cannot be stretched to an extent where it violates the fundamental rights under the Constitution. For an arbitration clause to be legally binding it has to be in consonance with the “operation of law” which includes the Grundnorm i.e. the Constitution. It is the rule of law which is supreme and forms parts of the basic structure. The argument canvassed on behalf of the respondent that the petitioner having consented to the pre-deposit clause at the time of execution of the agreement, cannot turn around and tell the court in a Section 11(6) petition that the same is arbitrary and falling foul of Article 14 of the Constitution is without any merit.’ 17

This is problematic to say the least. For Kelsen, the grundnorm imparts validity to the constitution18, but in India, it refers to the constitution itself. This case was an opportunity to correct the historical error; however, it ended up reinforcing the idea that the constitution is the grundnorm. This moves in the opposite direction to the idea that Kelsen propounded regarding the grundnorm as being the presupposition that the constitution ought to be obeyed.

Coup as ‘Ought’ – Pakistan’s Understanding

The Islamic Republic of Pakistan is not a country known for either stability or the rule of law19; however, precisely because of Pakistan’s proclivity for coups20, the concept of Kelsen’s grundnorm has many times been on the centre stage in the Supreme Court of Pakistan. One may refer to the country’s judiciary as Kelsen’s unhinged laboratory.

Background – Justifying the first coup using Kelsen’s Theory

In The State v Dosso (1958)21, the Supreme Court of Pakistan was hearing an appeal to a judgement pronounced by the West Pakistan High Court (It became Lahore High Court again later22). The case had been decided relying upon Articles 5 and 9 of the first Constitution of Pakistan, 195623, by the High Court, which was in force at the time, in favour of the accused. The Federal Government of Pakistan appealed the decision, and the matter was set for hearing on 13th October.

However, on 7th October, the President of Pakistan, Iskander Mirza, declared martial law and appointed General Ayub Khan as the Chief Martial Law Administrator.24 Three days later, the Laws (Continuance in Force) Order, 1958, was issued by General M. Ayub Khan, which sought to confirm the abrogation of the constitution and restricted the courts from questioning the order itself.25 Some of the words of the usurper contained in the order are as follows:

‘Article 2

(1) Notwithstanding the abrogation of the Constitution of March 23, 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution.

Article 3

No Court or person shall call or permit to be called in question:

i. The Proclamation;

ii. Any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law regulation;

iii. Any finding, judgment or order of a special Military Court or a summary Military Court.’ 26

Since the High Court’s ruling was made relying upon Articles 5 and 7 of the 1956 Constitution of Pakistan27, the previous constitution would remain in effect if the Supreme Court upheld it. Thus, the status of the martial law rules and the Laws (Continuance in Force) Order 195828 may also be contested if this was the case.

Munir C.J. justified the coup by using Kelsen’s theory by implying that a successful revolution replaces the previous legal order since the previous grundnorm ceased to derive a minimum amount of support and a new one, by way of a revolution, had succeeded it.29 Since the revolution (coup) was bloodless, he declared it to be successful.30 Relevant extracts of the judgement are as follows:

‘A victorious revolution or a successful coup d’ E’tat is an internationally recognised legal method of changing a Constitution.

(Hans Kelsen: “General Theory of Law & State” translated by Anders Wedberg; 20th Century Legal Philosophy Series pp.117-118)

Where revolution is successful it satisfies the test of efficacy and becomes a basic law-creating fact. On that assumption the Laws Cointinuance in Force Order, however transitory or imperfect, was a new legal order and it was in accordance with that Order that the validity of the laws and the correctness of judicial decisions had to be determined.[p.540]’ 31

Ironically, the president himself was deposed by the General the day after the judgement was published.32 This case was overruled by Asma Jilani v Government of Punjab (1972)33 in which one judge wrote approvingly of the criticism of Dosso:

‘As a commentator has remarked, a perfectly good country was made into a laughing stock.’ 34

The Logical View- Asma Jilani Case and the opinion of Yaqoob Ali, J.

The best judicial understanding of the concept of grundnorm can be found in the opinion of Yaqoob Ali J. in the case of Asma Jilani35, when General Yahya Khan had stepped down after the humiliating defeat of 197136, Zulfikar Ali Bhutto (a civilian politician) was made the Chief Martial Law Administrator37. It is during this time that the judgement was pronounced.

The case involved two appeals under Article 98 of the Constitution of Pakistan, 196238. The first was by Miss Asma Jilani before the Lahore High Court concerning the detention of her father, Malik Ghulam Jilani. The second appeal was filed by Mrs. Zarina Gohar before the High Court of Sindh for the release of her husband, Altaf Gohar. In both cases, the detentions had been made under Martial Law Regulation No. 78 of 197139. The legality of these detentions was in issue before each respective High Court, but both courts declined jurisdiction on the basis that the Jurisdiction of Courts (Removal of Doubts) Order No. 3 of 196940. The relevant part of this order is as follows:

‘…No court, tribunal or other authority, including the Supreme Court and a High Court, shall: (a) Receive or entertain any complaint, petition, application or other representation whatsoever … (b) call or permit to be called in question in any manner whatsoever any finding, sentence, order, proceeding or other action … (c) issue or make any writ, order, notice or other process whatsoever to or against, or in relation to the exercise of any power or jurisdiction by a special military court or a summary military court, or any Martial Law authority…’ 41

The court overturned Dosso and refuted the application of Kelsen in toto.42 While other opinions in the judgement gave flimsy Islamic theological explanations for overturning Dosso, like:

‘In any event, if a grund-norm is necessary, Pakistan need not have to look to the Western legal theorists to discover it. Pakistan’s own grund-norm is enshrined in its own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust.’ 43

Yaqoob Ali J. rectified the mistake of the application of the pure theory to justify the rule of a usurper by highlighting the practical problems with imposing an ‘is’ as an ‘ought’:

‘Per Yaqoob Ali, J.-However, effective the Government of a usurper may be, it does not within the National Legal Order acquire legitimacy unless the Courts recognize the Government as de jure. International law is not concerned with these considerations. If a rebel Government has succeeded in gaining effective control over people and territory the other States may recognize it. But will the same rule apply to the municipal Courts. East Pakistan today provides a classic example of a successful revolution which destroyed the National Legal Order and became a new law-creating fact. East Pakistan has declared its self-independence and became a separate State under the name of Bangla Desh. Pakistan claims that East Pakistan is a part of Pakistan, but a large number of States have already recognized it as an independent State. New Courts and Government services have been constituted in Bangla Desh which do not operate under the Legal Order of Pakistan. On these facts if a dispute arises involving the determination whether the new Government of East Pakistan is de jure, will the municipal Courts of West Pakistan confer recognition on it, because a victorious revolution is a legal method of changing the Constitution and the new order has become efficacious as the individuals whose behaviour the new order regulates actually behave by and large in conformity with new order. The answer is obvious. While under International law, East Pakistan has become an independent State, the municipal Courts of Pakistan will not confer recognition on it or act upon the legal order set up by the rebel Government. Yahya Khan’s Government, therefore, remained de facto and not de jure up to 20th December 1971, when he stepped aside.

Kelsen invests revolutionary Government with legal authority on the basis of a pre-supposed norm that the victorious revolution and successful coup d’etat are law-creating facts. This is in the realm of a theory and not a part of the national legal order of any State. No municipal Court will, therefore, rely on it as a rule. It is a statement of law by Mr. Kelsen to which a large number of jurists have taken exception. What Kelsen has said about the legitimacy of norm and legal authority of a revolutionary Government must be read separately and not mixed up. While revolution may destroy the existing national legal order because after the change the reality of the State has, disappeared from behind that order, it does not follow that the legal order, which replaces it, is the expression of the superior will of one or more revolutionaries who staged victorious revolution or successful coup d’etat. This is explained by Kelsen himself in the remark, that “the efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. A conditio sine qua non, but not a conditio per quam. The efficacy of the total legal order is a condition, but not the reason for the validity of its constituent norm. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way.” So, after a change is brought by a revolution or coup d’etat, the State must have Constitution and subject itself to that order. Every single norm of the new legal order will be valid not because the order is efficacious, but because it is made in the manner provided by the constitution of the State. Kelsen, therefore, does not contemplate an all omnipotent President and Chief Martial Law Administrator sitting high above the society and handing its behests downwards. No single man can give a constitution to the society which. in one sense, is an agreement between the people to live together under an Order which will fulfil their expectations, reflect their, aspirations and hold promise for the realisation of themselves. It must, therefore, embody the will of the people which is usually expressed through the medium of chosen representatives. It must be this type of constitution from which the norms of the new legal order will derive their validity. If this appraisal of Kelsen is correct, then the decision in the case State v. Dosso upholding the validity of the Laws (Continuance in Force) Order must be held to be erroneous.

A person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law making. May be, that on account of his holding the coercive apparatus of the State, the people and the Courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and Courts will not recognize its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper; he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would- be adventurers.’ 44

Winding Up

In a nutshell, the grundnorm is a Transcendental-logical Presupposition devoid of any ‘is’ like everything else in the pure theory of law. Like any other word or term, one can use ‘grundnorm’ to describe anything; however, a grundnorm in the Kelsenian sense can never be a constitution itself, for it is the underlying understanding or the presupposition of it that the constitution ought to be obeyed.

  1. Nicoletta Bersier Ladavac, ‘Hans Kelsen (1881–1973): Biographical Note and Bibliography’ (1998) 9(2) EJIL 385. ↩︎
  2. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 358. ↩︎
  3. ibid. ↩︎
  4. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 360. ↩︎
  5. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 361. ↩︎
  6. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 359. ↩︎
  7. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 361. ↩︎
  8. ibid. ↩︎
  9. H Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 201-202. ↩︎
  10. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 362. ↩︎
  11. ibid. ↩︎
  12. ibid. ↩︎
  13. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 363. ↩︎
  14. ibid. ↩︎
  15. Lombardi Engineering Limited v Uttarakhand Jal Vidyut Nigam Limited 2023 INSC 976. ↩︎
  16. Kelsen (n 9). ↩︎
  17. Lombardi Engineering (n 15). ↩︎
  18. H Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 2008) 201; RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 358. ↩︎
  19. World Justice Project, ‘Rule of Law in Pakistan’ (World Justice Project, 2018)
    <https://worldjusticeproject.org/sites/default/files/documents/Pakistan_Report_2017_Final-Online%20Version-Reduced.pdf> accessed 10 July 2025.     ↩︎
  20. ‘The curse that no Pakistan ruler has ever escaped’ (Times of India, 26 June 2018) <https://timesofindia.indiatimes.com/world/pakistan/the-curse-that-no-pakistan-ruler-has-ever-escaped/articleshow/64745781.cms> accessed 10 July 2025. ↩︎
  21. The State v Dosso PLD 1958 SC 533. ↩︎
  22. ‘From The Past Pages Of Dawn: 1970: Fifty Years Ago: New High Courts’ (Dawn, 17 June 2020) <https://www.dawn.com/news/1564071> accessed 10 July 2025. ↩︎
  23. The Constitution of Pakistan, 1956 art 5 and 7. ↩︎
  24. Wayne Ayres Wilcox, ‘The Pakistan Coup d’État of 1958’ (1965) 38(2) Pacific Affairs 142. ↩︎
  25. Laws (Continuance in Force) Order 1958 (ORD XXII of 1958) The Gazette of West Pakistan. ↩︎
  26. ibid. ↩︎
  27. Constitution 1956 (n 23). ↩︎
  28. Laws (Continuance in Force) Order 1958 (n 25). ↩︎
  29. Dosso (n 21). ↩︎
  30. ibid. ↩︎
  31. ibid. ↩︎
  32. RWM Dias, Jurisprudence (5th edn, LexisNexis 2013) 365. ↩︎
  33. Asma Jilani v Government of Punjab PLD 1972 SC 139. ↩︎
  34. ibid. ↩︎
  35. Asma Jilani v Government of Punjab PLD 1972 SC 139 (Yaqoob Ali J). ↩︎
  36. ‘Yahya Khan’ (Encyclopaedia Britannica) <https://www.britannica.com/biography/Yahya-Khan> accessed 10 July 2025. ↩︎
  37. ibid. ↩︎
  38. The Constitution of Pakistan, 1962 art 98. ↩︎
  39. TKK Iyer, ‘Constitutional Law in Pakistan: Kelsen in the Courts’ (1973) 21(4) The American Journal of Comparative Law 759 <https://www.jstor.org/stable/839088> accessed 10 July 2025. ↩︎
  40. ‘From The Past Pages Of Dawn: 1969: Fifty Years Ago: Jurisdiction of courts’ (Dawn, 1 July 2019) <https://www.dawn.com/news/1491456> accessed 10 July 2025. ↩︎
  41. ibid. ↩︎
  42. Jilani (n 33). ↩︎
  43. ibid. ↩︎
  44. Jilani (n 35). ↩︎

Comments

One response to “Kelsen ‘ought’ to differ on ‘is’!”

  1. Ankit Avatar
    Ankit

    Insightful.

    Reply

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