Why is a particular law valid?

In order to understand why a particular law is considered valid, we will analyse Kelson’s basic norm concept. For example, why an arrest by a police officer is valid? It is because the code of criminal procedure which is an Indian statute confers this power on the police officer. The next question is why the legal statute is valid, this is because it is in accordance with the provisions of Indian Constitution and comes under the duties of a public servant. “Digging into the validity of every such norm and law will help us reach a ‘grundnorm’ whose validity is not dependent upon any norm. This grund norm is presupposed to be valid and is the authorizing norm.”[1]

            “The validity of a higher norm depends on the validity of the lower norm.”[2] Trial by a judge will be valid only if the Code of Criminal Procedure which authorizes such trial by such judge would be valid. “Hence, these grundnorms also form the basis for forming further laws which are more concrete and specific in nature. The validity of these grundnorms cannot be further challenged and these have to be presupposed to be true and valid. However, Kelsen also says that these grundnorms are not made arbitrarily. These grundnorms are based on effectiveness. If a certain grundnorm is effective in the society, it will be accepted. If there is a lot of disobedience regarding a certain law, then, its grundnorm may be ineffective and may have to be changed. This also provides an answer as to why a certain law is obeyed, it is obeyed because the grundnorm which cannot be questioned is considered valid, which is why the law constructed upon such a norm is also valid.”[3]

            “Kelsen also states that this grundnorm justifies a coercive act by a party.”[4] For example, imprisonment by a magistrate involves restraining the convicted persons. However, this is valid as the criminal statute authorizes the magistrate. The criminal statute is valid because it is in consonance with the provisions of Indian Constitution that means such an act enables delivery of justice. Now, the validity and authority of this Indian Constitution is presupposed in drafting laws. Hence, we have to presuppose as it helps to form more concrete laws. These grundnorms may vary from one country to another. It might be different in a socialist state and very different in a capitalist state as the basic values itself are different. Hence, these modern legal rights, duties, policies are possible only because of that one basic norm which gives every such higher norm validity and efficacy. If the purity, the correctness and effectiveness of this norm is not presupposed, one may not be able to establish further legal hierarchies which are valid.

            Another example which highlights the relation of a juristic statement with a basic norm is as follows: “The laws against sexual harassment at workplace for women are valid as they were laid down in the famous judicial decision Vishaka & Ors. v. State of Rajasthan.”[5] These guidelines were laid down in the Vishaka case as per the ‘Convention on the Elimination of All Forms of Discrimination against Women which is an International Human Rights law and has been validly accepted by India’[6]. This international law is considered valid by India as it is in consonance with the legal principles under Indian Constitution. Indian Constitution has been validly made by the Constituent Assembly whose authority is presupposed and hence, it is the ‘grundnorm’. “The relation between Indian Constitution and the guidelines of sexual harassment at workplace are that the international law achieves its validity from the national law. The grundnorm for this international law is the national law.”[7] Hence, these legal grundnorms form the basis of any legal guidelines, regulations, duties, laws, policies or any other juristic statement.


[1] Ibid.

[2] Ibid.

[3] Ibid.

[4] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (3rd edn, Oxford University Press 2012) 89-99.

[5] Vishaka & Ors. v. State of Rajasthan 1997 6 SCC 241.

[6] Ibid.

[7] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (3rd edn, Oxford University Press 2012) 89-99.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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