Legal Definitions - grundnorm

Grundnorm

The term grundnorm refers to a fundamental concept in legal theory, particularly associated with the jurist Hans Kelsen. It describes the ultimate, foundational norm or presupposition that gives validity and legitimacy to all other legal rules, institutions, and the entire legal system within a state.

Crucially, the grundnorm is not a written law, a specific constitutional article, or a decree issued by a government body. Instead, it is a *presupposed* basic norm – an assumed, underlying principle that the initial or highest source of legal authority (like a first constitution or a revolutionary act) is valid. It serves as the logical starting point for the entire legal system, providing the ultimate "why" behind the authority of all subsequent laws, even though it is not itself created by any legal process.

Here are some examples to illustrate this concept:

• Example 1: Establishing a New Nation's Legal System

  Imagine a country that has just achieved independence and is drafting its very first constitution. There is no prior legal system to validate this new constitution. The grundnorm in this scenario is the collective, fundamental assumption by the people and the new government that this inaugural constitution is legitimate and authoritative. It's the ultimate, unstated agreement that this document and the legal system it creates will be the supreme source of law, even though its own validity isn't derived from any pre-existing legal rule.

• Example 2: The Authority of an Existing Constitution

  Consider a well-established democratic nation with a written constitution. If someone asks why a particular statute passed by the legislature is valid, the answer is that it conforms to the procedures outlined in the constitution. If they then ask why the constitution itself is valid, the answer ultimately points to the grundnorm. The grundnorm is the underlying, accepted presupposition that the original act of creating that constitution (perhaps through a constitutional convention or a revolutionary moment) was legitimate, and that the entire constitutional framework continues to be the ultimate source of legal authority for the nation.

• Example 3: A Long-Standing Traditional Legal System

  In a country with a long history of common law and an unwritten constitution, where legal authority has evolved over centuries through custom, judicial precedent, and historical acts, the grundnorm might be the fundamental acceptance of this historical continuity and the traditional sources of law. It's the deep-seated, unarticulated assumption that the established legal traditions, the authority of the courts, and the historical development of legal principles form the legitimate basis for all current laws, even without a single, formally enacted foundational document.