Kelsen’s Grundnorm and Dynamic Positivism
By
Hon’ble Justice Markandey Katju
To Kelsen certainly goes the credit of attempting to create order in a plethora of norms in a legal system by propounding his ‘pure’ theory of a hierachy of norms headed by a grundnorm (basic norm). This is analogous to Newton’s Law of Gravity and Laws of Motion which created order in a host of apparently chaotic and unpredictable movements of material bodies, including stars, planets and other heavenly bodies. Science should certainly try to create order out of chaos.
Kelsen’s grundnorm, however, raises two basic problems :
Firstly, while according to Kelsen all legal norms derived their validity from the grundnorm, from whence does the grundnorm arise? It could certainly not arise out of a lower norm for them it would not be the grundnorm, and it could obviously not arise out of itself.
Kelsen says “The binding force of the basic norm is self-evident, or at least it is presumed to be so. It is valid because it is presupposed to ....