A Project on

The Grundnorm vis-a-vis International Law:

A Critical Analysis

PROJECT SUBMITTED TO:

MS. ADITI SINGH

(FACULTY OF JURISPRUDENCE)

PROJECT SUBMITTED BY:

AMITESH TIRKEY
Semester V, Section C
ROLL NO. 25
SUBMITTED ON: 23 OCTOBER, 2017
HIDAYATULLAH NATIONAL LAW UNIVERSITY,
RAIPUR
 i

CERTIFICATE

This is to certify that the project work entitled “The Grundnorm vis-a-vis
International Law” submitted to HNLU, Raipur, is record of an original work done
by me under the able guidance of MS. ADITI SINGH, Faculty Member, HNLU,
Raipur.

AMITESH TIRKEY
Roll No- 25
 ii

ACKNOWLEDGEMENTS

I feel highly elated to work on the topic “The Grundnorm vis-a-vis International Law”.

The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude for Dr. Kaumudhi Challa, Faculty of Jurisprudence. Her
consistent supervision, constant inspiration and invaluable guidance have been of immense help
in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

-AMITESH TIRKEY
Semester V
Section C
 iii

LIST OF DOCUMENTS

Statutes:

 Statute of International Court of Justice: Article 38

 Chapter VII of the UN Charter: Article 1(1), 2(4),27(3),39,41,42.
 iv

TABLE OF CONTENTS

Chapter I: INTRODUCTION……………………………………………………………..1

I.A RESEARCH METHODOLOGY.........................................................................2

[I.A.1] PROBLEM…………………………………………………………...2

[I.A.2] RATIONALE………………………………………………………....2

[I.A.3] OBJECTIVE………………………………………………………......2

[I.A.4] HYPOTHESIS…………………………………………………….......2

[I.A.5] REVIEW OF LITERATURE…………………………………………2

[I.A.6] NATURE OF STUDY…………………………………………………3

[I.A.7] SOURCES OF DATA…………………………………………………3

[I.A.8] CHAPERISATION………………………………………………........3

[I.A.9] SCOPE OF STUDY…………………………………………………..3

[I.A.10]CONTRIBUTION…………………………………………………...3

CHAPTER II: GRUNDNORM..................................................................................................4

CHAPTER III: MONISM……………………….......................................................................5

CHAPTER IV: PRIMACY OF INTERNATIONAL LAW……………………………….7

CHAPTER V: APPLICATION OF PURE THEORY OF LAW TO CURRENT

PROBLEMS OF INTERNATIONAL
LAW…………………………………………………………….9

CHAPTER VI: CHAPTER VII OF UN CHARTER AND SECURITY COUNCIL

ACTION……………………………………………………………………………………11

CONCLUSION…………………………………………………………………………….14
 v

BIBLIOGRAPHY…………………………………………………………………………15
 1

CHAPTER I – INTRODUCTION

The idea of a Pure Theory of Law was propounded by the formidable Austrian jurist and
philosopher Hans Kelsen (1881-1973). The traditional legal philosophies at the time, were,
Kelsen claimed, hopelessly contaminated with political ideology and moralizing on the one hand,
or with attempts to reduce the law to natural or social sciences, on the other hand. He found both
of these reductionist endeavors seriously flawed. Instead, Kelsen suggested a ‘pure’ theory of
law which would avoid reductionism of any kind. Kelsen firmly believed that if the law is to be
considered as a unique normative practice, methodological reductionism should be avoided
entirely. But this approach is not only a matter of method. Reductionism should be avoided
because the law is a unique phenomenon, quite separate from morality and nature. The main
challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the
normativity of law, without an attempt to reduce jurisprudence. The law, Kelsen maintained, is
basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning;
1
we attach a legal-normative meaning to certain actions and events in the world However, the
question remains as to why certain acts or events have such a legal meaning and others don’t.
Kelsen’s answer to this question is surprisingly simple: an act or an event gains its legal-
normative meaning by another legal norm that confers this normative meaning on it. An act can
create or modify the law if it is created in accordance with another, “higher” legal norm that
authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid if and
only if it has been created in accord with yet another, “higher” norm that authorizes its enactment
in that way legally valid. At some stage, in every legal system, we get to an authorizing norm
that has not been authorized by any other legal norm, and thus it has to be presupposed to be
legally valid. The normative content of this presupposition is what Kelsen has called the basic
norm. The basic norm is the content of the presupposition of the legal validity of the (first,
historical) constitution of the relevant legal system2.

1
934/2002. Introduction to the Problems of Legal Theory, B.L. Paulson and S.L. Paulson, trans.,
Oxford: Clarendon Press
2
 1945/1961. General Theory of Law and State, A. Wedberg, trans., New York: Russell &
Russell.
 2

[I.A] RESEARCH METHODOLOGY

[I.A.1] PROBLEM: This project strives to analyse the proper core of legal scholarship i.e. what
the law itself says and that how the Pure Theory of Law – as a theoretical approach connected
with, but not restricted to, Hans Kelsen’s writings can be used for today’s theoretical challenges .

[I.A.2] RATIONALE: The rationale behind this project is to show that international law was
never a minor or neglected part of Kelsen’s writings and that his theory of international law is an
integral part of the Pure Theory of Law, a theory consistently applied to the doctrine of
international law, and a doctrine essential for the Pure Theory .

[I.A.3] OBJECTIVES:

 To study the feature of the Pure Theory of Law for the analysis of international law.
 To analyse the Application of pure theory of Law to current problems of International
Law.

 To study the construction of Chapter VII of the UN Charter and Security Council
Action.

[I.A.4] HYPOTHESIS: This Project seeks to apply the Pure Theory of Law to some of the current
problems of international law and also to get away from a gut-reaction against Kelsen and to
avoid the stigma that is associate with his name in legal theory. This can be achieved by re-
engaging with the Pure Theory of law and that the general legal theory of the Pure Theory of
Law must be reapplied to the international legal problems of today and adapted or modified.

[I.A.5] REVIEW OF LITERATURE:

 Lloyd’s Introduction to Jurisprudence, Michael Freeman FBA, Sweet and Maxwell;

9th edition(2014)-Chapter 4 of this explains the Hans kelsens’ pure theory of law.
 3

 Jurisprudence and legal theory,V.D.Mahajan’s, Eastern Book Company;5th edition

reprint(2013)- In Jurisprudence and legal theory Chapter 23, V.D. Mahajan tries to
highlight the kelsens’ theory of pure law, Basic norm and implications of pure theory.
 Studies in jurisprudence and legal theory, Dr. NU Paranjape,Central law agency
reprint; 7th edition (2014)-Chapter 2 of this book focuses on the theory of kelsen and
that how it is related to international law.

[I.A.6] NATURE OF STUDY: This research work is descriptive and analytical in nature. It
describes the Hans kelsens’concept of Grundnorm , its various key elements and also the
application of pure theory of law to the todays’ problems of International law

[I.A.7] SOURCES OF DATA: The project is largely based on secondary sources of data,
however electronic sources of data have been referred to a great extent. Books, Internet, journals
have been used as references.

[I.A.8] CHAPTERISATION: Chapter I of this project gives a brief background of Hans kelsens’
Idea of pure theory of law. Chapter II goes on to discuss the Hans kelsens’ Grundnorm. Further,
Chapter III deals with the key element of kelsens’ theory- Monism. Chapter IV discusses the
primacy of International Law. Further, Chapter V discusses the application of pure theory of law
to current problems of International Law. Lastly, Chapter VI deals with the UN charter and
Security Council Action.

[I.A.9] SCOPE OF STUDY:This project concerns itself to the in-depth analysis of Hans kelsens’
Grundnorm . This project traces the key elements in kelsens’ theory of International Law. Then it
concerns itself with the construction of Chapter VII of the UN Charter.

[I.A.10] CONTRIBUTION: This research project is an attempt to carry the spirit of the Kelsen
revival to the international realm. It seeks to apply the Pure Theory of Law to some of the current
problems of international law; and that how Hans kelsens’ writings can be used for today’s
theoretical challenges.
 4

CHAPTER II- GRUNDNORM

Kelsen recognized that the chains of validity do not regress indefinitely and one will ultimately
run out of higher authorizing valid norms. What confers validity on the system as a whole is not
therefore another positive rule of law but what Kelsen called the grundnorm sometimes
translated as ‘basic norm’. Kelsen described the grundnorm as the fundamental assumption made
by people in society about what would be treated as law. It is not the constitution, which for
Kelsen was simply another positive norm. He states that norms are regulations setting forth as to
how persons are ought to behave. Hence a norm is an ‘ought ‘proposition. It does not express
what is, but expresses what ought to be. Its existence can only mean its validity, and this refers to
its connection to the system of norms which it forms a part. Basic norms of a positive legal
system are simply the basic rules according to which the norms of the legal system are created.
3
Kelsen recognized that the Grundnorm may not be the same in every legal order, but a
grundnorm of some kind will always be there. It will always be adaptable to the prevailing state
of affairs.

3
Kelson Hans , General Theory Of Law And State (trans Andes Wedberg, 1945)
 5

CHAPTER III-MONISM

A key element in Kelsen’s theory of international law is monism, under which international law
and national legal orders are parts of a single legal order. Each national legal order is only a
partial order of the overarching legal order.4He deduces his primary argument from his neo-
Kantian epistemological viewpoint. He always prefaces his thoughts with a caveat: the unity of
the legal order is an epistemological postulate.5 Unfortunately, he did not detail the exact
implications of this. A closer analysis, thus, requires recourse to neo-Kantian epistemology, that
is, to Kelsen’s theoretical, scholarly background. Neo-Kantian epistemology dictates that the
method creates, or produces, the object. In other words, use of varying methods will produce
varying analytical objects6; correspondingly, use of a single method (namely, the legal method)
must produce a single analytical object.7 It means there can be only one single legal order with
single basic norm. The first of his secondary arguments also results from neo-Kantian
epistemology. Conflicts between international and national law can only be resolved, either if
they are conceived of as a single (non contradictory) legal order, 8or if there were a third, higher
order (to settle the conflict), which, however, does not exist. At first glance, the line of thought

4
H. Kelsen, Reine Rechtslehre 16 et seq. (1934)
5
]See Kelsen, Das Problem der Souveränität, ,See also Kelsen, General Theory, :“The unity of
national law and international law is an epistemological postulate.” “It is logically not possible to
assume that simultaneously valid norms belong to different mutually independent systems.”
6
Kelsen, Das Problem der Souveränität.
7
 D. Zolo, “Hans Kelsen: International Peace through International Law”, 9 EJIL (1998) 306,
323: “Kelsens’s monistic assumption stands or falls with the neo-Kantian philosophy from which
it derives.” In support of neo-Kantian concepts, the Vienna School also implemented
developments in the theory of modern physics. See A.Verdross, Die Einheit des rechtlichen
Weltbildes, at V (1923) (quoting Max Planck, Die Einheit des physikalischen Weltbildes, 1909)
8
Kelsen, General Theory :
If there should be two actually different systems of norms, mutually independent in their validity
…both of which are related to the same object (in having the same sphere of validity), insoluble
logical contradiction could not be excluded. The norm of one system may prescribe conduct A
for a certain person, under a certain condition, at a certain time and place. The norm of the other
system may prescribe, under the same conditions and for the same person, conduct non-A. This
situation is impossible for the cognition of norms.
 6

seems to be circular: it takes non contradiction for granted, in order to derive unity (and non
contradiction, as well) from it. But, on closer inspection, the logic becomes apparent, as it deals
again with the method’s power to create the object. If, indeed, the method creates the object, then
the object must be a non-self-contradictory one. Viewed thus, however, this argument becomes
identical with the primary argument. The other secondary argument for the unity of the legal
orders is the fact of references from each legal order to the other. For example, immunity under
international law is (co-)assigned by national law, namely, by the requirement that the head of
state be determined according to domestic law. At this point we cannot examine whether this
argument is convincing. Monism, thus, is unequivocally epistemologically, and not politically,
motivated in Kelsen’s doctrine of international law.

 
 7

CHAPTER IV- THE PRIMACY OF INTERNATIONAL LAW

In contrast to the above described monism, Kelsen’s concept of international law’s primacy
results from a political decision.9He maintains that a monistic construction with primacy of
national law would be equally as logical as one with primacy of international law. In his words:

 The choice between the primacy of international law and the primacy of national law is, in the
last analysis, the choice between two basic norms: the basic norm of the international and the
basic norm of the national legal order. The basic norm of a legal order is a hypothesis of juristic
thinking, not a norm of positive law. Such a hypothesis may or may not be accepted. It must be
accepted only if one wishes to interpret social relations as legal relations. But such interpretation
is only possible, not necessary. As we are free to accept or not to accept the hypothesis of a basic
norm, we are free to choose between the basic norm of international law and the basic norm of
national law as the fundamental basis of our interpretation of the world of law. It may be that our
choice, though not determined by the science of law, is guided by ethical or political preferences.
A person whose political attitude is that of nationalism and imperialism may be inclined to
accept as a hypothesis the basic norm of his own national legal order; in other terms, he may
proceed on the primacy of national law. A person whose sympathy is for internationalism and
pacifism may be inclined to accept as a hypothesis the basic norm of international law and thus
proceed from the primacy of international law. From the point of view of the science of law, it is
irrelevant which hypothesis one chooses. But from the point of view of politics, the choice may
be important since it is tied up with the ideology of sovereignty. The validity of state legal orders
stems from international law, as international law defines what a state (i.e. a state legal order in
the Pure Theory of Law) is by using the international legal principle of effectiveness. From the
primacy of international law follow not only the delimiting function of international law but
Kelsen’s hierarchy (Stufenbau) of sources of international law, as well. Thus, these can also, by
extension, be seen as resulting from the political decision for the primacy of international law.

9
For a detailed analysis, see, e.g., H. Kelsen, ‘Die Einheit von Völkerrecht und staatlichem
Recht’, in
Abhandlungen zum Völkerrecht. FS Aleksandr N. Makarov, . (1958).
 8

This element of Kelsen’s system of international law, then, is clearly (as Kelsen himself
admitted) political.

The Doctrine of bellum justum

The next key element of Kelsen’s conception is the doctrine of bellum justum. Under this
doctrine, war is either a delict (that is, an offence against international law) or a sanction. 10 In the
latter case, one speaks of bellum justum. Here, Kelsen seeks to prove that international law is,
indeed, a coercive order. For, according to Kelsen, a legal order must, by definition, also be a
coercive order, i.e. if there was no coercion behind the international law, then it would not be
‘law’.11And coercion, for Kelsen, includes necessarily physical force. One could question this
narrow definition of coercion or simply point out the discrepancy between international law (at
that time) and this doctrine; however, this would at most only reveal the doctrine as wrong, not
as political. The doctrine flows from Kelsen’s strict definition of law (that is, the legal order as a
coercive order, and coercion as physical force), not from a political decision (as, for example,
from the desire to tame or subdue war). It is, thus, classified as nonpolitical.

10
H. Kelsen, Unrecht und Unrechtsfolge im Völkerrecht, at 583 . (1932).
11
Hans Kelsen, The Legal Process and International Legal Order 13 (1935): “whoever rejects
the theory of the iustum bellumdenies the legal nature of international law.”
 9

CHAPTER V- APPLICATION OF PURE THEORY OF LAW TO

CURRENT PROBLEMS OF INTERNATIONAL LAW

Perhaps the most salutary feature of the Pure Theory of Law for the analysis of international law
is its ordering function. The hierarchical model Kelsen uses to explain the interrelationship of
norms (the Stufenbau) can be used to great advantage in bringing order to the somewhat muddled
positions the doctrine of international law holds both on the sources of law and on the mechanics
of norm-relationships.
Hence, the following will be an exposition of international law’s ‘constitution’ in a specific
sense: The highest echelons of a positive legal order, what Kelsen termed ‘constitution in the
material sense’.12 In this sense, the sources of international law are the foundation of the
international legal order (Section 6.2.1) and the rules and mechanisms of other norm-
relationships serve as the operating principles of international law (Section 6.2.3). The notion of
‘sources’ is a relativistic concept. Sources are empowering norms authorising humans to create
norms.13 An empowering norm’s function is to identify the norms created under it
andtherefore belonging to it: ‘A norm belongs to a legal order only because it is created under
the terms of another norm of the same order.’ In a sense, the Pure Theory is nothing but a theory
of sources, for its construction of normative orders depends upon the authorisation to create
norms. If a norm’s validity can only be based on another norm, then a connection between norms
is established, one based on one norm’s validity being dependent upon another norm. The
question ‘Why ought I to obey this statute?’ is answered by reference to the norm that has
authorised its creation. The ‘higher’ law empowers law-creation; that empowerment is the reason
the resultant law is valid. Creation establishes a ‘hierarchy of legal conditionality’. If, and only
if, all conditions imposed by the meta-law on law creation are met, can the norm created be
recognised as a norm of the normative ordering question and only then can the norms be ordered
in a multitude of spheres between delegating and delegated norms. .While international law
necessarily has a Stufenbau, here we do not have the problem of a highly complex network, but
of the apparent lack of any rules on rule-making. The hierarchy of legal conditionality is a

12
Kelsen (1960) at 228; Rudolf Aladár Métall, ‘Skizzen zu einer Systematik der
völkerrechtlichen Quellenlehre’,Zeitschrift für öffentliches Recht (1931) 416–428 .
13
Hans Kelsen, Principles of international law (1952) 303.
 10

necessary element of all normative orders: every normative order has at least two layers of
norms; it has at least the positive norm created and the presumed (quasi-fictional) Grundnorm. If
‘A’ had never issued a norm and would do so now, this norm would only be conceivable as a
norm if the Grundnorm: ‘Follow A’s orders’ were presupposed.  Determining the source of law
is a crucial questions of international law. We seem to take international treaty law, customary
international law and ‘general principles of law’ as sources without asking whythey are part of
the normative order ‘international law’. If we combine the notion of ‘constitution’ as the highest
echelon of authorising norms in a given normative order (in international law traditionally treaty
law and customary law) with the notion of the hierarchy of norms (Stufenbau), at least the
correct question to ask in response to the one above appears almost automatically: What norm of
international law authorises the creation of law. According to the Pure Theory of Law we must
find positive norms of international law that create source-law (such as the law on custom-
creation).How we are to proceed depends upon the answer we can give and either we find a
positive norm authorising source-creation, or we do not. This is a prime example of the self-
chosen limits of the Pure Theory: positivist international lawyers will have to do research on the
positive-legal bases of the sources and in no case should they assume content. They cannot, for
example, simply take Article 38 ICJ Statute as an authoritative statement of the sources 14 simply
because it is generally accepted as such.  Here, the Pure Theory of Law can help in debunking
the myths through its emphasis on the analysis of positive law. If a scholar’s idea – or even the
prevalent opinion – of what constitutional norms should have as their content conflict with the
positive legal regulation, the Pure Theory helps us realise that the positive law is the positive
law. No amount of presupposition of ‘necessary constitutional functions’ will magic elements of
(domestic) constitutional law – such as a mandatory protection of individual rights – into being
for international law if positive international law  does not support it. Here, Kelsenian theory
clarifies the issue: scholarly opinion camouflaging as ‘absolute values’ does not make, change or
destroy positive law.
 

14
 R.S. Pathak, ‘The general theory of the sources of contemporary international law’,  Indian
 11

CHAPTER VI- CHAPTER VII OF THE UN CHARTER AND

SECURITY COUNCIL ACTION
The following is a discussion of elements of the Pure Theory’s construction of Chapter VIIof the
UN Charter. While Kelsen’s own writings retain their usefulness but are concerned with notions
which are regarded as ‘outdated’ nowadays and which are best seen through a re-application of
the Pure Theory of Law’s general theory rather than discussed by reference to Kelsen’s own Law
of the United Nations (1950)15 or similar specific pieces. Kelsen himself constructs Chapter VII
in light of two theoretical concepts: the coercive order paradigm (Zwangsnormpostulat) and a
reformulated bellum iustum doctrine. The coercive order paradigm is Kelsen’s answer to the
question of what distinguishes legal orders from other kinds of normative orders. ‘A feature
common to societal orders designated as law is that they are coercive orders in the sense that
they
react to anti-social “facts”, especially to such human behaviour, by [prescribing] an
evil’,16i.e. sanctions. Thus, coercionprescribed as reaction against certain behaviour is the
distinguishing feature of law. Kelsen saw the application of the coercive order paradigm to
international law as rooted in a simplified and secularised version of
the bellum justum doctrine:17 ‘Without the so-called principle of “bellum justum” there is no
international law’. If there is a total prohibition on the use of force which includes the possibility
of justifying forcible actions as sanctions, international law would truly be law. Kelsen sees
the bellum justum principle embodied in Chapter VII, yet in Law of the United Nations he gives
two alternative interpretations of its provisions. In the first interpretation the enforcement
measures under the Charter cannot be characterised as ‘sanctions’, because they are not
necessarily a reaction against a state violating the Charter. The ‘threat to the peace, breach of the
peace, or act of aggression’ clause in Article 39 is not a prohibition and the Security Council may
determine that situations constitute a threat to the peace and it might also order measures against
a state not having violated its obligations under Article 39.
15
 Hans Kelsen, The law of the United Nations. A critical analysis of its fundamental problems
(1950).

16
Hans Kelsen, Reine Rechtslehre (2nd edn. 1960)
17
Danilo Zolo, ‘Hans Kelsen: international peace through international law, 9 European Journal
of International Law (1998) 306–324 at 312.
 12

The Council is also not obligated to initiate enforcement measures against a state which has used
force. Kelsen argues:

‘The enforcement actions taken under Article 39 are purely political measures, that is to say,
measures which the Security Council may apply at its discretion for the purpose to maintain or
restore international peace.’ Under the other interpretation of the Charter, ‘enforcement actions
determined by Articles 39, 41 and 42 must be interpreted as sanctions’. Transposing the bellum
iustum doctrine to the UN Charter regime, measures under Article 41 play the role of reprisals
while enforcement under Article 42 fulfils the function of war.  Kelsen insists that Article 41
measures can only be interpreted as sanctions, because ‘reprisals are permissible only against a
violation of international law’, the nature of Article 42 measures are disputed. If ‘threats to the
peace’, ‘breaches of the peace’ and ‘acts of aggression’ are indeed prohibited, the (tenuous)
connection is that the term ‘in any-+
manner inconsistent with the Purposes of the United Nations’ in Article 2(4) refers to the phrase
‘to take effective collective measures for the prevention and removal of threats to the peace, and
for the suppression of acts of aggression or other breaches of the peace’ in Article 1(1), which
again refers to the clause in Article 39.128 He further concludes that if force is prohibited unless
it constitutes a collective response (measures under Article 41 and 42), then Article 39 becomes
– via Articles 1(1) and 2(4) – a prohibition: it prohibits threats to the peace, breaches of the
peace, or acts of aggression by authorising sanctions under Articles 41 and 42.129. It is also
submitted that eliminating the coercive order paradigm from the interpretation of the Charter is
more in keeping with the Pure Theory of Law’s basic assumptions about the nature of law and
norms. Thus, law’s classification is a matter for sociological methodology and to make law
dependent on its coercive elements means making it dependent on facts. This would violate
Kelsen’s own dichotomy of Is and Ought and it is thus best omitted. Therefore, a reconceived
Chapter VII does not conform to the bellum iustum doctrine. ‘Coercive actions’ by the Security
Council need not exclusively be directed at member states violating their obligations under the
Charter131 and are thus not necessarily a response to a wrong. Article 39 is not formulated as a
prohibition and Security Council action is not directed specifically against acts fulfilling the
terms of the clause in that article, or even to redress Article 39’s ‘violation’. The Council’s
freedom to find concrete occasions for enforcement also undermines the application of a strict
 13

concept of law-enforcement. The measures under Article 41 and 42 cannot be seen as sanctions
in the Kelsenian sense of the word. The Charter’s Preamble and Article 1(1) make quite clear
that the goal of the Charter VII mechanism is not to enforce the law, but to maintain international
peace and minimise the use of force. In the realm of norms, the resolution as norm is valid or is
not. It is valid only if the concretisation of the conditions for law-creation chosen by the Council
is a possible meaning of that meta-law; it is not if the Council has chosen a meaning that is not
covered by the meta-law. To give a concrete example: arguably, the term ‘concurring votes’ of
the permanent members in Article 27(3) can only mean a positive response (a ‘yes’ vote), not an
abstention, because silence does not equal consent. If that is the limit of the possible meanings of
that term in Article 27(3) – and, admittedly, it is not even clear what the possible meanings of
that term are – no putative resolutions passed with abstentions by permanent members have
actually become norms. Yet, as can easily be seen under the Pure Theory’s sharp analytical gaze,
the problem lies more in our capacity to cognise, i.e. with epistemics. This makes for great
factual uncertainty and for the factually unlimited nature of limits for Council action, as can be
seen from the Council’s expansive use of the term ‘threat to the peace’. Legally speaking, there
are restrictions though. If a situation is not a ‘threat to the peace, breach of the peace, or act of
aggression’, it is not. The Pure Theory of Law, however, clarifies the nature of the limits of the
Council’s powers, of the consequences of ultra vires action and identifies perceptibility as the
true problem in this respect.

CONCLUSION
 14

The Pure Theory of Law deserves to be more widely known among international lawyers. More
importantly, it deserves to be more widely applied to concrete problems of international law. Its
‘common legal sense’ approach provides a connection of concrete problems of doctrine to its
theoretical dimension, more so, it is submitted, than any other theory, because the Pure Theory
alone focuses on the legal core of these problems. It is thus the ideal theory for those concerned
with positive international law, rather than with political ideals. The Pure Theory’s greatest
advantage lies in the dual tracks of deconstruction and construction. While many other theories
are either proficient at criticising elements of law from a particular ideology or at constructing an
uncritical edifice of law, Kelsen’s ‘critical’ positivism combines both elements – and does so
admirably well. In showing no tolerance for the pragmatic fudging of the positive law whenever
the strict application of law would not lead to the desired outcome, in uncovering hidden
politico-moral elements in scholarship as external to the law in force, and in pointing out the
‘real’ legal-theoretical dimension behind ostensibly uncomplicated dogmatic arguments, it
deconstructs the notion of a clear and pragmatically usable international law. In developing the
notion of normative orders based on the dichotomy of Is and Ought, of reality and norm, in
hierarchically ordering norms by virtue of the norm-creation relationship and thus constructing a
constitution of international law based on points of law rather than perceived necessities of
content or in reducing the problems of erroneous law-creation to its legal core, it constructs a
scholarship of law based only on the law and clarifies the legal issues and legal problems where
they exist and shows many other ‘problems’ to because by extra-legal factors and thus to be
void. In this light it is to be hoped that the Kelsen revival mentioned at the beginning of this
chapter will strengthen and extend to international legal scholarship.

BIBLIOGRAPHY
 15

BOOKS REFERRED:

 Lloyd’s Introduction to Jurisprudence, Michael Freeman FBA, Sweet and Maxwell; 9th
edition(2014)
 Jurisprudence and legal theory,V.D.Mahajan’s, Eastern Book Company;5th edition
reprint(2013)
 Studies in jurisprudence and legal theory, Dr. NU Paranjape,Central law agency reprint;
7th edition (2014)-

SITES VISITED:

 http://ijlljs.in/volume-1-issue-1/
 https://books.google.co.in/books?
id=ZXmPaB3SDxcC&pg=PA30&lpg=PA30&dq=the+grundnorm+vis+a+vis+internation
al+law&source=bl&ots=tIu1eX2iW7&sig
 =PwuVKsXp8iGltcF8jOZM5Lt_8X8&hl=en&sa=X&ved=0ahUKEwiXyI-
1ncDOAhVEr48KHaYqC6IQ6AEIKDAD#v=onepage&q=the%20grundnorm%20vis
%20a%20vis%