Theory of Grundnorm

Grundnorm which means basic norm or fundamental norm has come from the view of Hans Kelsen that in every legal system, no matter with what propositions of law we start, an hierarchy of ‘oughts’ is traceable to some initial or fundamental ‘ought’ from which all other emanate. This norm may not be the same in every legal system, but it is always there. It is not necessary that there should be one fundamental law. Every rule of law derives its efficacy from some other rules standing behind it, but the Grundnorm has no rule behind it.

The Grundnorm is the initial hypothesis upon which the whole system rests. We cannot account for the validity or the existence of the Grundnorm by pointing to another rule of law. It is the justification for the rest of legal system that we cannot utilize the legal system or any part of it to justify the Grundnorm.

Kelsen did not give any criterion by which the minimum of effectiveness is to be measured. It is contended that in whatever way the effectiveness is measured, Kelsen’s theory cease to be pure. The effectiveness of the Grundnorm depends upon sociological factors which are excluded by Kelsen.

The rest of the legal system is considered as broadening down in gradation from it and becoming progressively more and more detailed and specific. The entire process is one of gradual concentration of the basic norm and the focusing of the law to specific situations which it is as a dynamic process. The application of a higher norm involves the creation of new lower norms. The application of the general norm by the judge to a particular situation involves a creative element insofar as the judge, by his decision, creates a specific norm addressed to one or other of the parties.

Certain conclusions were drawn by Kelsen. First is that there is no distinction between public and private law. That is due to the fact that all emanates from the same Grundnorm. Both public and private laws are a part and parcel of a single process of concretization.

Second is that the legal system is an ordering of human behavior. The idea of duty is the essence of law. That is evident in the ‘ought’ of every norm. the idea of a right is not essential. It is said to occur if the putting into effect of the consequences of the disregard of the legal rule is made dependent upon the will of the person who has an interest in the sanction of the law being applied.

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