Name: Pratham Pratap Mohanty

Roll Number: 1806

Semester: III
Subject: Jurisprudence
Answer 1
According to Kelson’s theory of Law, the law is based on a basic norm which may be called
a gundnorm. Every law is derived from a higher law, which gives it’s the power, and thus,
any law is not dependent on either morality or its enforceability. According to Kelson,
grundnorm is the belief of the earliest people that the very ‘first’ document of primary law,
from which every other law is secondary to, is valid and those who created it, had the
authority to do so. Therefore, the basic norm is the ‘belief’ of people rather than the actual
authority. Few examples can be drawn to understand this theory of grundnorm.
Example 1: Case of General Pervez Musharaf
Gen. Musharaf, during a flight, took over the military and suspended the constitution of
Pakistan and thus assumed the power to himself. He declared himself as the Chief Executive
of Pak. Constitution suspended. He jailed legislators, reshuffled SC. State of emergency
declared. Secured nomination of Presidency, and then became president of Pakistan. But, the
question arises, was this shift valid under Kelson’s theory.
It is a nature of people that after the initial presupposition is made, people forget about it and
then the document is what exists. There may be a complete change in the manner in which
the country is run. This is possible, if there is an intermediate doc allowing that change. In
this case, there is no linkage. The constitution of Pakistan does not allow this change to be
made. So the existing constitutional provision is not satisfied. However, if people of Pakistan
believe that this is legitimate, then this regime will also be. Pakistan has witnessed several
military rulers and dictators. In the last 60-65 years Pak was continuously ruled by dictators.
So in the minds of the Pak people, a coup is a legitimate form. So the rule of recognition
allows a change in government through an election as well as a military coup. Thus, there
exists a grundnorm which allowed such transition in power.
Example 2: Case of Turkey Coup
Turkey had abolished death penalty to join the EU, so the question was raised how to punish
the perpetrators who were now arrested, but responsible for the deaths of several citizens.
According to Kelson, If the coup plotters succeed, then there will be a new legal order and
they will be judged on the basis of this new order and on this basis they will not be criminals.
However, if they fail, they are judged on the touchstone of the older legal order since new
legal order has not come into place. Thus, the question boils down to change in the
grundnorm. He argues that you don’t need to look at the constitution, have to look at the
effectiveness of the new govt. Even if they come to power by extra-constitutional means.
Legitimacy is linked to the idea of effectiveness and success. The bottom line of the whole
theory is effectiveness. Effectiveness is enforcement and compliance. Thus, when looking at
an individual norm, don’t need to look at anything beyond (whether followed or not, good in
content or not etc.), only need to see whether it can be made according to a higher norm.

Answer 2
1. H.L.A Hart had proposed that a law should be considered as a ‘rule’ and not a
‘command’, as opposed to Austin’s. He differentiated his idea on the basis of consent
and said that there’s a difference between ‘obliged to do’ and ‘obligation to do’. In the
former, there’s a more powerful authority which imposes command on the society,
whereas in the later, the people give their consent and agree to follow a rule, which
shall create an obligation for them. According to his model, the purpose of law is to
direct people what to do and what not to do or to guide people.
On the other hand Kelson tells us that law is to be understood in the form of Norms.
Norm is an ‘ought’ proposition. If X happens, Y ought to happen. Validity of a legal
norm, which is prescriptive in nature is not dependent upon the fact circumstances.
The prescription of the ought and the reality may be different, still the ought
proposition will be valid. The person’s conduct will be wrong, and has to be brought
in line with the norm.
2. The authority or validity of rules in Harts model, comes from the society itself. The
rules are basically customary in nature. The rule is therefore created by the society
itself and obeyed due to consent provided by the people itself. The purpose of law,
according to him is to create obligations. As the element of consent is present, then
people will feel that you have an obligation to follow the law. the validity of a rule is
because of the consent.
Whereas, Kelson takes a different approach for norms. The validity of a norm comes
from a previous norm, which is more general and standing behind that law. In that
way, a normative structure is created, and then you arrive at the most foundational
norm, which is the basic norm. this basic norm imparts validity to all the norms.
3. The higher norm does not provide the content to the lower norm, it only gives it the
validity. Therefore, whatever the law or content may be, it is valid. Therefore, a norm
is valid.
 However, in case of a rule in Hart’s model, it cannot be valid if it doesn’t have the
internal force, or the society’s acceptance. Thus, content of rules is important to get
the societies acceptance and to get ‘consent’ to create obligations.

4. In Hart’s model, “a social rule has an ‘internal aspect’, in addition to the ‘external
aspect.’” The internal aspect comes from within, form the society itself. 
Whereas, in norms, the external aspect from the basic legal norm, or the previous
norm. There is no explicit internal aspect. The society accepts it because of its legal
validity.