Kelson on Indian Constitution

Topics: Law, Constitution, Statute Pages: 8 (3052 words) Published: April 1, 2013
Institute of Law
VIth Semester B.A. L.L.B.(Hons.)Course

A brief legal research paper in the subject of jurisprudence Theme: Kelson on validity And Effectiveness of Norms Title: Kelson’s theory of grundnorm and its effectiveness in Indian Context

This article is an attempt to explain as to what is meant by kelsons theory of grundnorm, in what way are they effective, its functions and whether the concept cab be found in the Indian Constitution. Further, a critical analysis has been drawn to come to a viable opinion with regard to the theory. The validity of norm is ascertained with reference to its authorizing norm, which confers a power to create it and may specify conditions for its existence. This paper shows the application of kelson’s theory of grundnorm in the Indian Constitution in various cases like kesavananda bharti case, Indra Gandhi v/s Raj Narain case, Kuldip nayar V/s Union Of India and golak nath v/s State of Punjab.
Introduction Hans kelson (1881-1973) Austrian Jurist and Philosopher of law. Keelson is known for the most rigorous development of “positivist” theory of law, i.e. one that rigorously excludes from it’s analyses theory is any ethical, political, or historical considerations, and finds the essence of the legal order in the ‘black letter’ or laid down law. A system of law is based on a grundnorm or ground rule, from which flows the validity of other statements of law in the system. The ground rule might be that some particulars dictates pr propositions, such as those of the sovereign, are to be obeyed. The grundnorm can only be changed by political revolution. The theory of Hans keelson represents development in two directions. At one side, it marks the most defined development to date of analytical positivism; on the other side, it marks a reaction against the welter of different approaches that characterized the opening of the twentieth century. The most important feature of kelson’s theory is grundnorm. Norms are regulation set out hoe persons are to behave and positive law is thus a normative order regulating human conduct in a specific way. A norm is an “ought proposition; it expresses not what is, or must be, but ought to be , given in certain conditions; its existence can only mean its validity, and this refers to its validity, and this refers to its connection with a system of norms which it forms a part.

Analysis of kelson’s ground norm and hierarchy of norms
According to Kelsen, a dynamic system is one in which fresh norm are constantly being created on the authority of original, or basic, norm, a Ground norm; a static system is one which is at rest in that the basic norm determines the content of those drives from it in additional to imparting validity to them. The Ground norm is the presupposition and the other norms get validity from the Ground norm. Every country has its own Ground norm from which the other norm is being originated. The Ground norm is the basic norm. Kelsen recognized that the Ground norm need not be the same in every legal order, but a Ground norm of some kind there will always be, whether, eg a written constitution or the will of a dictator. The Ground norm is not the constitution; it is simply the presupposition, demanded by theory, that...
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