The Basic Norm Analysis

At the apex of the legal system, according to Kelsen, is the ‘basic norm’ or the ‘Grundnorm’. The ‘Grundnorm’ or the ‘basic norm’ is identified as the feature that validates a Constitution and the legal system. The basic norm ties the legal system together, unites its diversity and is the source of authority and validity in the system. Norms exist only if authorized or entailed by other norms. As Harris puts it, ‘’the grundnorm is the hypothesis which closes up the arch of legal logic’’. It is important to stress that the grundnorm is a presupposition, it must be presumed to exist or it is a hypothesis. Its validity depends on efficacy. Kelsen argues that after a successful revolution, the Grundnorm changes. Even if many of the old laws
His central contention is that moral values cannot be deduced from the physical world (ie you cannot derive an ‘’ought’’ from an ‘’is). Kelsen called this theory a pure theory of law with the object being to identify the very essence of law, the one thing that makes something law, as opposed to morality or other societal standards. Riddall states that from Kelsen’s view, law consists of normative ought propositions called norms which are directions to officials as to what to do. At times, the basic norm or grundnorm of the legal order changes by means not authorised by the basic norm. The basic norm may also change when an empire or federation breaks up into independent states, such as the case of The State (Ryan and Others) v Lennon and Others which concerned a newly liberalised Ireland, from the ruling of the United
22) Act, 1933, which terminated the right of appeal to His Majesty in Council from the Irish Free State Courts. The claim was allowed by the trial court however it was reversed by the Supreme Court of the Irish Free State on July 31, 1933. The appellants stated that ‘’the Irish Free State derived their validity from the Act of the Imperial Parliament, The Irish Free State Constitution Act, 1922.’’ For Kelsen, the content of legal norms is not primarily to impose duties on the subject to conform, but rather to lay down what judges or officials are expected to do in the event of a delict. It was not competent for the Irish Free State Parliament to pass an Act abrogating the Treaty because the Colonial Laws Validity Act forbade a Dominion Legislature to pass a law repugnant to an Imperial Act, thus, the effect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Act, which the case in this instance have