In India a statute or law is valid because it derives its legal authority from being duly passed by the Parliament and receiving the accent of the President, the Parliament and the President, derive their authority from
CS Executive · Jurisprudence, Interpretation and General Laws · PYQS · June 2024
In India a statute or law is valid because it derives its legal authority from being duly passed by the Parliament and receiving the accent of the President, the Parliament and the President, derive their authority from a norm i.e., the Constitution. From where does the Constitution derive its validity? Explain. Which theory of law is based on a pyramidical structure of hierarchy of norms that derive their validity from the basic norm? Elucidate.
Answer & Explanation:
In India a statute or law is valid because it derives its legal authority from being duly passed by the Parliament and receiving the assent of the President, the Parliament, and the President, derive their authority from a norm i.e., the Constitution. As to the question from where the Constitution derives its validity, there is no answer and, therefore, it is the Grundnorm, according to Kelsen's conception of pure theory of law. Grundnorms are generally followed by the Superior Norms. Superior norms are laws that govern the subordinate laws. They are inferior to Grundnorm but superior to subordinate laws. Whereas Subordinate norms are derived or made to assist the superior norm. These norms derive their justification from superior norms. Kelsen's pure theory of law is based on a pyramidical structure of hierarchy of norms which derive their validity from the basic norm. Kelsen described the law as a "normative science' as distinguished from natural sciences which are based on cause and effect, such as the law of gravitation. The laws of natural science are capable of being accurately described, determined, and discovered whereas the science of law is knowledge of what law ought to be. Like Austin, Kelsen also considered sanction as an essential element of law but he preferred to call it 'norm'. According to Kelsen, 'law is a primary norm which stipulates sanction'. According to Kelsen, 'norm (sanction) rules forbidding or prescribing a certain behaviour'. He saw legal order as the hierarchy of norms having sanctions, and jurisprudence was the study of these norms which comprised legal order. Kelsen distinguished moral norms from legal norms and said that though moral norms are 'ought' prepositions, a violation of it does not have any penal fallout. The 'ought' in the legal norm refers to the sanction to be applied for violation of law. According to Kelsen, we attach legal-normative meaning to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelsen as 'Grundnorm'. Grundnorm or basic norm determines the content and gives validity to other norms derived from it. Under Kelsen's pure theory, the grundnorm does not derive its validity from any other norm and its validity must be presupposed. 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.
Topics: Jurisprudence
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