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A COMPARATIVE STUDY ON JURISPRUDENTIAL WORK OF H.L.A HART AND HANS KELSEN ON ‘THE RULE OF RECOGNITION’ AND ‘BASIC NORM’ IN MODERN LEGAL CONTEXT

By Somya Kumari

Hans Kelsen, an Austrian Jurist, is known for the concept of ‘Basic Norm’ (also known as ‘Grundnorm’) through his renowned Pure Theory of Law. The theory is considered to be the most comprehensive formulation of a positivist theory of law i.e. its philosophy avoids the study of any ethical, political, sociology, historical aspects, and thus free from all ‘evaluative criteria’ for instance- fear, morals, psychological elements, etc. The root of the validity of positive law is known as Grundnorm. H.L.A. Hart, a British legal philosopher, is well known for his work on ‘The Concept of Law’, which means the system of rules are made by humans and that creates obligations such that there is no essential connection between law and morality. Both the philosopher viewed the scope of a legal system from the viewpoint of legal positivism.
The paper is divided into two parts. The first part deal with the study of jurisprudential work of H.L.A. Hart and Hans Kelsen on the ‘Rule of Recognition’ and ‘Basic Norm’ in modern legal context. Pursuant to this, there will a brief information on similarities and dissimilarities between ‘the Rule of Recognition’ and ‘the Grundnorm’. Further, we will derive which theory is considered more viable in modern legal context. The second part attempts to determine whether constitution of a nation state can be considered as its Grundnorm. Through research, a comparative study of India and United Kingdom is analysed to find out the various viewpoints of ‘Grundnorm’ as they have adopted in their legal systems.

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