Application of Kelsen’s Pure Theory of Law in Indian Law

Introduction:

Hans Kelsen was an Austrian jurist and philosopher of law and politics, who is known for the most precise development to date in analytical positivism. He was a professor at the Vienna University. In Vienna, Kelsen met Sigmund Freud and wrote on the topic of sociology and social psychology.[1] In the year 1920, he was appointed as a Judge at Supreme Constitutional Court of Austria, he was at this position for ten years but then he shifted to England. After coming to United States, he wrote many books as well as he was a professor at several American universities. He is also known for his teachings of political science at California University which is when he acknowledged “pure theory of law”. “Pure theory of law” is said to have revived original analytical thought in the 20th century, and it is considered to be a unique contribution to legal theory by Kelsen. According to Kelsen, “a theory of law must be dealt with law as it is laid down and not as it ought to be.”[2] He observed old legal theories and its development in field of science and technology, political science, economics, sociology and law.[3] He is said to have found the essence of legal order in “Black-Letter Law”.[4]First illustration of Pure theory of Law was taken in account in the year 1911, it later developed after the war conditions of Europe. Kelsen drafted New Austrian Federal constitution in the year 1920, where he focuses on the idea of fundamental law as the basis of legal system, which brought the attention of many lawyers towards this theory. His theory is a development of Austin’s Positivism Theory in his own style.[5] His Theory also gives a response against confusion of different theories of law that were brought in the opening of 20th century. Kelsen through his theory sought to present law as serious in its abstraction and severe in logic.[6] His theory is a revolt against vicious ideology corrupting and the jurisprudence of a totalitarian state.[7]

What is Pure Theory of Law?

Kelsen’s opinion was that “a theory of law must be free from ethics, politics, sociology and history”[8], which means it must be pure. He says that it should be uniform such that it is applicable at every time in all places. With this ideology Kelsen promoted general jurisprudence. He arrived at generalizations, which promotes good over a larger society.[9]

The aim of this theory is to minimize the chaos and maximize unity among the society. According to Kelsen, Law is normative, not natural science and as a theory of norms, legal theory is not concerned with the efficiency of legal norms. Kelsen says that law should be dynamic, it should constantly change with the changing needs of society, but the change should be influenced by some fundamental norm that is original in nature, which he termed as a Grundnorm. 

Kelson also distinguished between Preposition of Law and Preposition of Science. He says preposition of law deals with what is supposed to happen, but preposition of science deals with what is necessary to happen. In Kelsen’s words “Natural science describes its objective is according to principle of casualty, whereas science of law describes it according to the principle of normativity.”[10]

What is a Grundnorm?

The most important feature of Kelsen’s theory is Grundnorm. The Grundnorm is the initial point for the philosophy of Kelsen.[11] He defined Grundnorm as “the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity.”[12] The view of Kelsen is that in every legal system, no matter with what law we start, a hierarchy of ‘oughts’ to be traceable to some fundamental ‘ought’ from which all other law generates.[13] This fundamental ‘ought’ is called as basic norm or fundamental norm. Kelsen called this Grundnorm. Kelsen says that this norm may not be same in every legal system, but it is for sure that it is always present. Fundamental norm may differ for every legal system. Every law derives its worth from some other law standing behind it, but Grundnorm has no rule behind it, it stands alone.[14] Kelsen says that it is a primary hypothesis that whole legal system revolves around Grundnorm.

The Grundnorm is not created in a legal procedure by a legislative organ.[15] It is valid because it is presumed to be valid; and it is presumed to be valid because without this presumption, no human deed could be construed as legal, specially as an act that creates norm for society.[16] By word ‘norm’ Kelsen means a prescriptive norm that must be followed or in other words ‘it ought to be done’. Kelsen classified norms into two types; legal norms and moral norms. According to him if an efficient administration is provided for validity of legal norms it need not be backed by some moral force.

When a certain number of people willingly follow some norm, only then a Grundnorm can be said to be accepted. Kelsen says that there must not be a total neglect of Grundnorm, but also there need not be an entire devotion to it. Only a minimum of support is necessary for the acceptance of it. When a Grundnorm fails to get minimum acceptance, it is no more deemed to be a foundation of legal order and some other Grundnorm replaces the old one. Such a change in the foundation of laws results in a revolution. Kelsen never mentioned how the effectiveness is supposed to be measured. It was argued that in whatever manner we measure effectiveness of the Grundnorm, it strikes out the fact that this theory is pure. The effectiveness of Grundnorm is measured on the basis of sociological factors which is contradictory to Kelsen’s theory as he himself excluded sociological factors.[17]

Pure Theory of Law and Dharma

Foundation of Indian law can be observed in as early as ancient times. India is popularly known for its history of varied culture and heritage. In ancient times all the actions of people of India were governed by the principle of dharmaDharmais derived from the word ‘dhru’ which means to sustain or hold.[18] Basic aim of dharma is to hold people together in harmony and sustain social solidarity.[19] In other words ancient legal orders were governed by sovereignty of dharmawhere king was the custodian who has the duty to enforce law and administer justice according to the principle of dharma. The king was bound to overlook that rules were operated within the framework of scriptures. Scriptures justified the duties of king which was called as ‘rajdharma’. King also had the duty to impose sanctions, whenever there occurred any disobedience of rules of dharma. Thus, it can be assumed that along with everyone, king was also bound to the duties mentioned in dharma. Moreover, it is understood that dharma was accepted and followed by everyone for maintaining harmony and unity in the society. To put it more simply, dharma was considered as a supreme law of the land in ancient times.[20] As discussed earlier, Grundnorm is not law but presupposition, which relies upon the obedience of the people to the legal order established by the Grundnorm. Ultimately it rests on general acceptance of the people who want it because they think it is right and good.[21] He says that norm with any content with valid procedure following it, can becomes law. In ancient India, any norm can become a law if it complies with the structure of Vedas that lays down rules of dharma. Supreme court in the case of Kesavnanda Bharti vs. State of Kerala[22] provided similar judgement when court held that fundamental rights can be amended as long as they comply with basic structure of the constitution. Thus, it can be conferred that, the Grundnorm of ancient Indian socio-legal theory was we ought to obey dharma.[23]

Pure Theory of Law and Constitution of India

Shifting of legal paradigm from ancient to colonial to modern legal system gives Kelsen’s pure theory of law a theoretical framework.[24] After Independence, When a democratic country was to be formed, a need for standard and supreme law was felt for co-ordination of people. Hence, a committee was formed for drafting the Constitution of India that would confirm public welfare and public rights of the society. It was drafted in such a manner that it is accepted and followed by everyone.

Constitution of India[25] is the supreme source of law in our country. Constitution is accepted and followed by everyone in the country. It is the basis of legal order which can be called as a Grundnorm that validates legal system of our country. It is believed that all the laws made should comply with the principles mentioned in the constitution. It is deemed that Grundnorm cannot be changed and it can only go through a change when it is the basis of a political revolution. However, According to Article 368 of Constitution, Parliament has the power to amend  any part of the constitution for the welfare of society to match the needs of changing nation. 

Preamble of our constitution starts with “WE, THE PEOPLE OF INDIA, having solemnly resolved…”, clearly shows the source of authority of the constitution. Moreover it ends with “…do HEREBY ADOPT, ENACT, AND GIVE OUSELVES TO THE CONSTITUTION.” This shows that people of India have themselves adopted and given themselves to the constitution. “having solemnly resolved” means people are obligated by the constitution without any exemption.[26] Preamble also mentions “given by the people to themselves.” Herein, Constitution abides by the test of Grundnorm that demands pre-supposition.

One can also refer to the principle of constitutional morality, which mentions that one is obligated to follow norms as mentioned in constitution and consider constitution to be supreme. It also says there must not be any action that is arbitrary and thus, violates the supreme law of land. This approach was explained in Naz Foundation vs. Government of NCT, Delhi,[27] where criminalization of homosexuality created a conflict between basis of morality and constitutional morality. It was held that, in absence of compliance with constitutional morality, such laws will be invalidated. Thus, Grundnorm is seen as an ideal method to avoid conflict based on morality.[28]

Article 37 of the Indian Constitution says that all the laws must obey the Directive Principles provided in Part IV of the constitution and they shall form the basis of governance of the country. But, in State of Madras vs. Smt. Champakam[29], Supreme Court overruled past government order and held that reservation at educational institutions on the basis of caste violates fundamental right Article 29 of the constitution. Herein, Supreme Court believed fundamental right to be the supreme law of the country. Similarly in A.K. Gopalan vs. State of Madras[30], Supreme Court interpreted ‘procedure established by law’ mentioned in Article 21 as any substantive or procedural provision of enacted law. Herein, Court interpreted the law as it is and not as what it ought to be. Reference to Kelsen’s theory can also be found in parts of Shrimati Indira Gandhi vs. Raj Narain And Ors.[31]

Article 13 of Constitution mentions that, no such law shall be made which is in violation of fundamental rights. In Kesavnanda Bharti vs. State of Kerala[32], It was held that, yes, fundamental rights can be amended but they should not disrupt the basic structure or framework of the constitution. In this case Supreme Court introduced principle of basic structure. In the words of Sikri C.J “The expression ‘amendment of this Constitution’ does not enable the Parliament to completely change the fundamental features of the Constitution so as to destroy its identity”[33] Here again, Constitution of India fits under the purview of Grundnorm that says there ought to be a basic rule and here, Constitution proves to be the ultimate source of law. 

In the case of Squadron Leader H.S. Kulshrestha vs. Union of India,[34] court clearly mentioned Constitution of India to be Grundnorm of the nation. It 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.”[35] Similar statement was provided in another case of Abdur Sukur & Another v State of West Bengal & others, court mentioned constitution as a Grundnorm of all Indian statutes.[36]

Criticism of Kelsen’s Pure Theory of Law

Lord Lloyd has appreciated that Kelsen has avoided some of the complex theories of Austin’s analytical positivism but he criticised Kelsen’s theory over uncertain nature of Grundnorm. He says “Grundnorm is vague and confusing, we are not clear what sort of norm it is, where we can find it, and what it does.”[37] Lloyd mentions basic norm as the most troublesome feature of Kelsen’s theory. Lloyd concludes that Kelsen’s theory can only be found useful to legal scientists, and will not be useful for judges for its practical application. Prof. Godhart found it difficult to trust an analysis of such a theory which did not explain existence of the basic norm around which the whole legal system revolved.[38]

Julius Stone focused on non-existence of any basic norm in international law. He doubts the contribution of Kelsen’s Pure Theory of Law to legal system, which it assumes as law and which is derived from a basic norm but its existence is not confirmed.[39] Stone describes Kelsen’s theory to be most impure.[40]

Prof. Dias says that legal order is not sum total of law[41], but it includes many doctrines, principles and standards, that do not derive its validity from Grundnorm but still they are accepted to be legal.[42] Dias mentions this as a grave weakness of Pure theory of law.[43] Other criticisms includes, Kelsen’s ignorance towards customs and traditions of a society also Kelsen’s exclusion of natural law and morality from his theory. 


[1] Hans Kelsen, , Wikipedia (2021), https://en.wikipedia.org/w/index.php?title=Hans_Kelsen&oldid=1020094653 (last visited Apr 30, 2021).

[2] V.D Mahajan’s Jurisprudence and Legal Theory, (5th ed.).

[3] Dr. N.V.Paranjape, Studies in Jurisprudence and Legal Theory, (6th ed. 2011).

[4] Mridushi Swarup, KELSEN’S THEORY OF GRUNDNORM 10.

[5] Sankalp Bhangui, TOPIC: – THE PLACE OF KELSONS PURE THEORY OF LAW IN FUNCTIONAL JURISPRUDENCE 14.

[6] V.D Mahajan’s Jurisprudence and Legal Theory, supra note 2.

[7] Rakesh Kumar, STRUCTURAL ANALYSIS OF THE INDIAN LEGAL SYSTEM THROUGH THE NORMATIVE THEORY, 41 Journal of the Indian Law Institute 500–512.

[8] V.D Mahajan’s Jurisprudence and Legal Theory, supra note 2.

[9] Id.

[10] Id.

[11] Id.

[12] Diva Rai, Application of Grundnorm in India, iPleaders (2020), https://blog.ipleaders.in/application-of-grundnorm-in-india/ (last visited May 1, 2021).

[13] V.D Mahajan’s Jurisprudence and Legal Theory, supra note 2.

[14] Id.

[15] Freeman Michael, LLOYD‟S INTRODUCTION TO JURISPRUDENCE (9th ed. 2014).

[16] Id.

[17] V.D Mahajan’s Jurisprudence and Legal Theory, supra note 2.

[18] Rakesh Kumar, supra note 7.

[19] Id.

[20] Rai, supra note 12.

[21] Rakesh Kumar, supra note 7.

[22] Kesavnanda Bharti vs. State of Kerala, , AIR 1461 (1973).

[23] Rakesh Kumar, supra note 7.

[24] Id.

[25] Hereafter Constitution, .

[26] Prantik Roy, Application of Kelson’s Theory in India, 7 International Research Journal of Commerce and Law (2019).

[27] Naz Foundation v. Government of NCT of Delhi, , Cri LJ 94 (2010).

[28] Shybham Joshi, GRUNDNORM IN INDIA: A NEW PERSPECTIVE, 1 INTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND ALLIED ISSUES.

[29] State of Madras vs. Smt. Champakam, , SCR 525 (1951).

[30] A.K Gopalan vs. State of Madra, , SCR 88 (1950).

[31] Indira Gandhi v. Raj Narain, , 33 AIR 69 (1977).

[32] Kesavnanda Bharti vs. State of Kerala, supra note 22.

[33] Prantik Roy, supra note 26.

[34] Squandron Leader H.S. Kulshrestha vs. Union of India, Civil Miscellaneous Writ Petition No. 11829 Of 1999, .

[35] Rai, supra note 12.

[36] Id.

[37] V.D Mahajan’s Jurisprudence and Legal Theory, supra note 2.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

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