Kelsen's View on The Legal Science

The legal order as conceived by Kelsen receives its unity from the fact that all manifold norms of which the legal system is composed can be traced back to a final source. This final source is the basic norm or the Grundnorm which he defined as the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity.

Kelson considers legal science as a pyramid of norms with basic norm at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The basic norm which is otherwise called Grundnorm is however, independent of any other norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the Grundnorm has been termed by Kelson as ‘concretisation’ of the legal system. Thus, the system of norms proceeds from downwards to upwards and finally it closes at the Grundnorm at the top. The Grundnorm is taken for granted as a norm creating organ and the creation of it cannot be demonstrated scientifically nor is it required to be validated by any other norm. For example, a statue or law is valid because it derives its legal authority from the legislative body. The legislative body in its own turn derives its authority from a norm i.e., the Constitution. As to the question from where does the Constitution derive its validity there is no answer and, therefore, it is the Grundnorm according to Kelsen conception of pure theory of law. In his view the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

Kelsen’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed. Thus, basic norm determines the content and gives validity to other norms derived from it.

According to Kelsen, norm is rules forbidding or prescribing certain behavior. For him, legal order is the hierarchy of norms having sanction. For example, moral norm says that ‘one shall not steal’ but it lacks coercive force but if it is to be reduced in form of legal norm, it would say “if a person steals, he ought to be punished by the competent organ”. This ought to in the legal norm refer to the sanction to be applied for violation of law.

Kelsen described law as a “normative science’ as distinguished from natural sciences which are based on cause and effect. The laws of natural science are capable of being accurately described in the form of ’is’ which is an essential characteristic of all natural sciences. But the normative science of law is knowledge of what law ought to be. It is the ought character which provides normative character to law. For instance, if A commits a theft he ought to be punished. Kelsen also considers sanction as an essential element of law but he prefers to call it norm. Thus according to Kelsen law is a norm which stipulates sanction.