Muhammad Munir (International Islamic University, Islamabad – Department of Law) has posted Revisiting Kelsen’s Grundnorm: Theory, Critique, and Its Judicial Fate in Pakistan on SSRN. Here is the abstract:
This article critically examines Hans Kelsen’s theory of the Grundnorm, focusing on its conceptual foundations and application in Pakistani constitutional jurisprudence. It explores key questions concerning the nature of the basic norm, the validity of a legal system in Kelsenian reasoning, and whether the Grundnorm is a positive, presupposed, or fictitious norm. The article interrogates Kelsen’s two core axioms, namely, that all norms derive their validity from a single basic norm and that they exist within a unified chain of validity, arguing that both are theoretically flawed. It highlights Kelsen’s later shift towards viewing the Grundnorm as an imaginary or fictitious construct. The article further analyses the invocation of Kelsen’s theory by the Supreme Court of Pakistan, particularly in State v Dosso and Asma Jilani, demonstrating judicial inconsistency and conceptual disagreement regarding the identification of a Grundnorm. It argues that subsequent constitutional jurisprudence abandoned Grundnorm discourse in favour of doctrines such as necessity and basic structure. Through comparative reference to cases such as Prasad (Fiji), the article underscores the limitations of Kelsenian reasoning in legitimising unconstitutional regimes.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum