Explain Kelsen’s idea of the Grundnorm. (6 marks)
LAW531: Jurisprudence I. April 2005
Kelsen’s Grundnorm (translated as basic norm) is the fulcrum of his “Pure Theory of Law”. According to Kelsen, this basic norm is the source of validity of all other norms of the system. In a sense, this is the “first constitution”. It is impossible to go beyond this. From this basic norm – which is assumed to be valid, comes all other rules which derive their validity from that basic norm. Kelsen’s theory postulates that the Grundnorm is Germany’s ‘First Constitution’ and is presupposed to be binding as the basis for validating all law. Grundnorm may be perceived as the ‘higher order’ which validates even the constitution[1].
Grundnorm demands obedience from its citizens which is free from any form of social or political consideration[2].
The basic norm is not created by a law-creating organ according to a legal procedure. Sather, it is valid because of the presupposition to be valid. In the absence of this presupposition, no human act can be deemed legal. Thus, the basic norm is not a positive norm.
It is also worth noting that Kelsen rejects Hart’s rule of recognition as a starting point. He insists that one cannot generate “ought-propositions from ‘is’-facts.” He argues that something that is cannot follow something that ought to be. Likewise, something that ought to be cannot be the reason that something is. Thus, the validity of one norm can only be the validity of another norm. These layers of validity will continue until it reaches that single “grundnorm behind the Grundnorm”.
In the context of Malaysia, the Courts have ruled that the grundnorm is the Federal Constitution. As the supreme law of the land[3], it is the source of power which grants the institutions and organs of government the authority and legitimacy to enact laws, punish, correct, and interpret.
[1] Zaidi Kanapiah v ASP Khairul Fairoz Rodzuan & Or Cases [2021] 3 MLJ 759
[2] Hassan bin Abdul Karim v Perdana Menteri, Tan Sri Dato’ hj Mahiaddin bin Md Yasin & Anor [2021] 11 MLJ 1
[3] The Attorney General v Lokman Noor bin Adam [2020] 9 MLJ 41
