Kelson on Indian Constitution

3038 WordsMar 18, 201313 Pages
Institute of Law VIth Semester B.A. L.L.B.(Hons.)Course A brief legal research paper in the subject of jurisprudence Theme: Kelson on validity And Effectiveness of Norms Title: Kelson’s theory of grundnorm and its effectiveness in Indian Context SUBMITTED BY: SUBMITTED TO: JYOTI RAGHUWANSHI Dr. Tarkesh Molia 10Bal101 Dr. N.Bangkim Singh SEMESTER-…show more content…
Kelsen distinguishes the legal norm and normal norm. Legal norm derives its validity from the external sources and the particular “ought” of the legal, as distinguish from the moral norm, is the sanction. Kelsen found the distinction between legal and other “oughts” in that the former backed by the force of the state, the preoccupation of law being with the prospect of disobedience rather than obedience. Thus, it is prescription of sanction that imparts significance of a norm, or putting it in another way, Law is the primary norm, which stipulates the sanction. Kelsen focused on the problem of determining legal validity, that is, on the issue of how legal rules and public acts are to be invested with normativity, their formal authority as binding law, enforceable through sanctioned state power. Simplifying, Kelsen viewed a system based on legislative sovereignty as logically incomplete, and indeed unstable, and sought to ground the legality of state action more formally in a supra- legislative body of rules, a Grundnorm. He argued that any given act could only be considered valid, or normative, if it is enabled by, and does not conflict with, a specific and formally superior legal rule. Furthermore, all legal rules, in order to confer validity on lower order rules, must be capable of being enforced by a judge or ‘jurisdiction’. The move to higher law
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