Kelsen is an example of Continental legal positivism.

He contended that law could

be identified solely by its form rather than its content, and thus his theory was
'pure,' as he put it. Furthermore, determining the law was a matter of 'objectively'
describing a set of 'action-directing' rules of behaviour, or 'norms,' that would
impose duties or confer powers on people. Morality, he claimed, was merely a
matter of 'subjective opinion.' Some of his language is difficult to understand due
to (a) its translation from German and (b) technical terms used in German
philosophy, but these are easily 'decoded.' The Grundnorm is simply the
assumption that a set of laws is valid.

Kelsen is known for developing the most rigorous 'positivist' theory of law, i.e. one
that finds the essence of the legal order in the 'black letter' or laid-down law. A
legal system's validity is derived from a Grundnorm or ground rule. The ground
rule may be to obey specific dictates or propositions, such as those of the
sovereign. Only political revolution can change the Grundnorm.

Kelsen defines law in a unique way. Officials who disobey laws are only guilty of
‘delicts', not citizens who disobey laws. In Kelsen's validity theory, a norm, the
Grundnorm, is based solely on a "assumption of validity." Unlike Austin and Hart,
Kelsen's theory of validity is based on facts, not assumptions. Nonetheless, Kelsen
claims that a legal system's effectiveness is a "necessary condition."

Kelsen characterises law in a very unique way. Because the law dictates when and
how officials must apply sanctions, it is officials who disobey the law, not citizens,
who only commit 'delicts.' Kelsen's validity theory necessitates a 'chain' of validity
that ultimately rests on a norm, the Grundnorm, that is based solely on a
'assumption' of validity. Kelsen's theory of validity differs from Austin's and Hart's
in that these two jurists propose legal validity criteria based on facts rather than
assumptions. Nonetheless, Kelsen claims that factually determined effectiveness is
a "necessary condition" for the existence of a legal system.

Before 1971 as East Pakistan was not an independent country, the laws which were
created by West Pakistan from Act of Parliament, that will be considered as then
East Pakistan’s constitution. It gets validity from the Independence Act-1947.But
after 1971 it was decided by the constitutional assembly that Bangladesh will be an
independent country and there will be new constitution and new parliament . This
understanding is well known as grundnorm. As a result, the old grundnorm that
East Pakistani citizens used to follow was repealed because it had become invalid
due to their refusal to follow it, and it was replaced with the new grundnorm,
which has been accepted by the officials as being valid .

However, in order to determine the validity of a grundnorm, two questions need to

be answered. Firstly it is to be seen whether the secondary norms are abided by the
citizens . Secondly, whether the primary rules are followed by the officials.
sometimes it can be evident that the secondary norms are not followed by the
citizens of a country only for a few days due to riot & it does not invalidate the
existing laws. Therefore, it can not be said then that the grundnorm has been
changed . So, if a revolution is not successful then the previous grundnorm will
still be valid and continued to follow making the latter one void. Heynes P laid
down four conditions of a successful revolution in the case of Mitchell v DPP.

In India if an insulting comment is being made by defaming someone, the person

against whom the comment was made can sue the perpetrator under Digital
Security Act of India and under Defamation Act . As under Indian
constitution ,Parliament has given authority to make law ,hence it should be
followed In 1947 when the Indian Independence Act is enacted ,then constitution
assembly was created by the Indian legislatures in order to obey the constitution.
Therefore, Independence Act is valid because British Parliament had parted
Pakistan and India by passing the law. So, the validity of the Act was given by the
British Parliament.From 16th century onwards , king has accepted the fact that he
has the power of giving Royal Assent whilst the law making power rests on HOL
and HOC.This acceptance is grundnorm .It is not written but an
acknowledgement . Unlike Austin or Hart it is not said that the defendant can be
arrested as what he did was not socially acceptable or is immoral, rather he can be
arrested because of the norm being the main source.
Moreover, the USA law was created by Congress, under their constitution. In 1707
Thomas Deverson & other independent state when claimed their independence
from UK in order to ensure their separate their judiciary & law making body, the
fact that all the officials reach to this conclusion , is itself known as Grundnorm ,
which is giving validity to constitution & other consecutive norms .

IF THE QUESTION DEALS WITH DELICT

Kelsen differentiated moral and legal norms. Moral norms, he argues, are standards
of behaviour relating to an individual or social concept of good. For example,
“don't steal” is a moral rule. But he saw law as a social technique, a way to make
people do something by punishing noncompliance. Officials authorised by law
apply the sanction. So a legal norm tells an official to apply a sanction in certain
situations. For example, “a judge is required to punish a thief.” This is the primary
norm.

He went on to say that citizens simply create the circumstances by committing a

"delict," or wrongdoing, which causes officials to apply the norm. As a result, if a
citizen commits a crime, an official should impose a penalty. Because it is
addressed to the officials, the citizen has not done anything out of the ordinary.
The term "secondary norm" is also used to describe this situation.

It's no surprise that Kelsen runs into many of the same problems that we did with
Bentham and Austin's theory that laws are concerned with the imposition of
punishment. The judge should order a non-performing party to perform or pay
damages if the contract was concluded in accordance with these rules. If we have a
driver's licence, we are legally allowed to operate a vehicle on public roads. In
order to receive a pension if we are unemployed or disabled, the Social Security
Act grants us the right, but it does not require us to do anything. As norms, how do
we communicate this information? In Kelsen's view, each of these laws has the
power of law. There are many different kinds of rules in a legal system, and
Kelsen's definition of legal norm as a licence for officials to impose sanctions is
misleading.
Kelsen's conceptualism eliminates the need to search for the ultimate legal rule that
validates all other rules in the system. All legal rules, according to Kelsen, are
valid. But, like all pure theory concepts, this was created for a specific theoretical
purpose.

The purpose of Kelsen's basic norm is to portray the legal system's unity, tracing
validity from a single source. Thus, tracing the authorization of norms from a court
decision through the statutory norms providing jurisdiction, through the
constitutional norms authorizing the enactment of the statute, to the original
constitution, the pure theory of law deliberately postulates a single norm'standing
behind' and validating the original constitution.

The basic norms thus provide the reason for the validity of this constitution and the
coercive order created in accordance with it; the basic norms refers directly to a
specific constitution, actually established by custom or statutory creation, by and
large effective, and directly to the coercive order created according to this
constitution, by and large effective; the basic norms thus provide the reason for the
validity of this constitution and the coercive order created in accordance with it. As
a result, the basic norm is not a product of free will. When the subjective meaning
of a constitution-making act and the acts created in accordance with that
constitution are interpreted as their objective meaning, it is not presupposed
arbitrarily in the sense that there is a choice between basic norms. This basic norm,
which refers to a specific constitution, can only be interpreted as objective
meaning, that is, as objectively valid legal norms, and the relationships established
by these norms as legal relations, if it is presupposed.

The distinction between validity and effectiveness made by Kelsen has only been
briefly discussed. Every norm except the grundnorm is valid because another norm
confers validity on it, not because it is or is likely to be obeyed by those to whom it
is addressed. As with a new statute before it is implemented, a norm is valid before
it becomes effective. However, the effectiveness of the legal order as a whole
determines the validity of each norm.
When we try to express the assumptions that underpin these legal considerations,
we discover that the old order's norms are regarded as invalid because the old
constitution, and thus the legal norms based on it, the old legal order as a whole,
has lost its efficacy; because men's actual behaviour no longer conforms to this old
legal order. When the entire legal order to which it belongs loses its efficacy, every
single norm loses its validity. The efficacy of the entire legal order is a legal
requirement for the validity of each and every order norm.

The overall legal order's efficacy is a condition, not a reason, for the validity of its
constituent norms. These norms are valid not because the overall order is effective,
but because they are established in a legal manner. They are valid, however, only if
the overall order is effective; they lose their validity not only when they are
annulled in a constitutional manner, but also when the overall order is no longer
effective. It is impossible to maintain that men are legally obligated to follow a
certain norm if the entire legal order, of which that norm is an integral part, has lost
its efficacy. The principle of effectiveness restrains the principle of legitimacy.

The only thing that clearly demonstrates the significance of the fundamental norm
is the phenomenon of revolution. Let us imagine that a group of people decides to
overthrow the legitimate government in a monarchy and replace it with a
republican one. There must be some success, some cessation of the old order, some
efficacy of the new order if the new order's targets actually behave in accordance
with the new order, in which case, this new order is deemed valid. Individuals'
actions are now classified as legal or illegal based on the new societal order.

Case examples from copy

Raz argues that there are two current conceptions of law's normativity: justified
and social. One school of thought holds that norms of conduct can only be
considered normative if and to the extent that they are justified by law. Some
objective and universally valid reasons may justify them. They can be seen as
binding intuitively or as justified by personal commitment and accepted as such.
On the other hand, standards of conduct can be regarded as norms regardless of
their value. Because they are held as binding standards by society, and because
society exerts pressure on those who are subject to them, they constitute social
norms. Natural law theorists tend to favour the first view, while positivists tend to
favour the second.
Hart's analysis in The Concept of Law is the most successful attempt to explain the
normativity of law in terms of the concept of social normativity. According to
theorists who employ the concept of justified normativity, a legal system can be
considered normative only if people regard it as just and accept its norms as part of
their own moral views. According to social normativity theorists, everyone should
regard legal systems as normative regardless of his or her assessment of their
merits. Much of Kelsen's theory's obscurity stems from the difficulty in
determining which concept of normativity he is employing.

Raz claims that Kelsen's basic norm theory is a theory of ‘justified normativity,'
meaning that any legal statement must be justified by an assumption that it is legal
to do so. Raz argues that we should reject this theory because laws are normative
because they contain rules. The fact that some people – like judges and lawyers –
identify these rules as laws is all we need to know about them. Raz calls such a
better theory of ‘social normativity', which he claims Hart has, to explain how legal
rules arise.

Kelsen argues that the concept of social normativity is a misnomer. Only justified
normativity can reveal the true nature of legal systems as normative systems.
Kelsen considers law an ideology because he believes only justified normativity
exists. For law is normative, i.e. justified and good for all who regard it as such:
this is why the idea of a norm, a “ought”, is merely ideological.

When Kelsen says that the Grundnorm is a 'transcendental presupposition,' we

might think differently about what he means. Basically, the argument would be as
follows: In order to know that, say, Section 1 of the Theft Act 1968 is law (i.e., has
objective normative force), we must first presuppose the category of the Basic
Norm. Since we must presuppose it, the Basic Norm must be true as a result of this
presupposition. Many of the objections would be dispelled if this (neo-Kantian)
argument were to succeed. As a result, the Grundnorm would be established as
uncontroversial in the sense that no one who has a working knowledge of law
would be able to deny it. There are, however, some fundamental flaws that prevent
it from gaining traction. The most significant of these issues is that it relies on
premises that one does not necessarily have to accept. ' This interpretation of the
Grundnorm relies heavily on philosophical literature i.e Stanley Paulson, 'The neo-
Kantian dimension of Kelsen's pure theory'.

Kelsen's work is different from Austin's. His writings address a variety of issues
not addressed by latter's writings. He sees law as a set of norms. The grundnorm is
a basic norm that connects all other norms in the system. It is unclear what this
norm is and what it does. Kelsen's thoughts on this subject are complex. The
grundnorm is the root of all norms. The highest norm is Grundnorm. Also,
grundnorm is unquestionable. It is always constitutional in nature and although
purely formal, it is the legal system's foundation.
Pacta sunt servanda ie, in the same way. The basic rule of international law states
that all treaties must be abided by in good faith. The Indian Constitution also
acknowledges Kelsen's theory. In the United States, the Constitution is the
supreme law of the land. It's the most important rule. The Constitution of the
United States of America serves as the foundation for all other laws. If a law is
found to be unconstitutional, the courts can declare it null and void. As a result,
Kelsen's ideas have relevance in today's world as well.