The document discusses Hans Kelsen's theory of the grundnorm and how it can be impacted by successful revolution, using cases from Pakistan as examples. According to Kelsen's theory, a successful revolution replaces the previous basic norm and establishes a new legal order and validity for laws. This is demonstrated in cases in Pakistan where revolutions replaced martial law administrators and prior constitutions. The Asma Jilani case invalidated martial law imposed by Yahya Khan and paved the way for restored democracy and a new constitution. Similarly, the Dosso case upheld Ayub Khan's military coup as establishing a new basic norm and legal order. Both cases illustrate how revolution can replace the grundnorm according to Kelsen's pure theory of

1. With the reference to decided cases around the world, discuss the effects of successful revolution
on the Grundnorm.
There are multiple cases around the world which had a significant impact on the
Grundnorm by revolution such as in Pakistan, Uganda, South Rhodesia and Fiji. Grundnorm is
derived from the german word which means fundamental norm. This term is used in Hans
Kelsen’s Pure Theory of Law and its doctrine of the Grundnorm which analyzes the political and
constitutional situations that is created in the aftermath of revolutions such as in unstable
countries mentioned. Kelsen’s Pure Theory of Law attempts to differentiate between law and
what is not strictly law and he distinguishes it from facts and morals. The main elements of
Kelsen’s theory is also derived from Immanuel Kant’s theory which are the world of things and
the world of ideas following with what is, and what ought to be done or not done. For example,
when a law is made based on the object of the law that says it provides speedy trials for certain
offences, and then the object is a norm as the act may not be able to always provide for a speedy
trial but the enactment of the act is still a fact.
Kelsen as modern legal positivists feels that moral judgments, political biases and
sociological conclusions should be put aside for the purpose of creating pure law. Kelsen also
wanted to isolate the legal structure and his pure theory of law would describe it would reduce it
to anything more than it is. He also characterized laws as rules or norms which are always a part
of a system of norms that has a relationship that is valid which they derive from higher norms.
When discussing the Grundnorm, Kelsen recognized that the chains of validity does not regress
and run out of higher authorizing valid norms and the validity is conferred on the system as a
whole. Hans Kelsen describes the grundnorm as the fundamental assumption made by people in
society about what would be treated as law. For example in religion, a person may say that we
cannot do a certain act because that is what God said which makes it your foundational belief.
However, if you follow the basic norm it is because you believe in what the parliament says and
the authority that the parliament has for passing the norms or laws. Not all particular grundnorm
may be applied in society but it depends on what fundamental assumptions are made by the
members of that society.

2. According to Kelsen, in a revolution both peaceful and violent, the grundnorm can be
replaced by events such as military coup or granting of independence from the colonizer to its
colony which can be demonstrates by the cases mentioned. During a revolution, even if the
grundnorm is changed, and laws made by previous regime governing the citizens remained
unchanged because it still requires the consent of the new grundnorm. The content of these
norms remains unchanged but the reason for their validity changes as the previous grundnorm is
displaced by a new grundnorm. The first case that will be discussed is a revolution case in
Pakistan. In the case of Asma Jilani v The Government of Punjab, Malik Ghulan Jilani was
arrested at Karachi under an order purported to have been issued in exercise of powers conferred
by clause (b) of sub rule (1) of rule 32 which is read with rule 213 of the Defence of Pakistan
Rules, 1971. This order was challenged in the Lahore High Court through a writ petition which
was admitted to regular hearing and a notice was issued to the Government of Punjab. A day
earlier on 30th December 1971, the order was rescinded and substituted by another order of the
same day purported to have been issued by the Martial Law Administrator, Zone C in exercise of
the powers said to have been conferred on him by Martial Law Regulation no.78. Asma Jilani
who is the daughter of the détente, challenged the validity of the order of her father’s detention.
The petition was resisted by the Government and a preliminary object was raised that the High
Court had no jurisdiction in the matter because of the bar contained in the jurisdiction of Courts,
Order 1969 that was promulgated by the last Martial Law regime. Hamood Rehman C.J laid
down “With the utmost respect, therefore, I would agree with the criticism that the learned Chief
Justice not only misapplied the doctrine of Hans Kelsen, but also fell into error in thinking that it
was generally accepted doctrine of modern jurisprudence and even the disciples of Kelsen have
hesitated to go as far as Kelsen had gone.
The High Court held that it had no jurisdiction because of the Removal of Doubts Order
No.3 of 1969 barred the courts from questioning the validity of any act done under the Martial
Law Regulation No.78 of 1978. Asma Jilani appealed to the Supreme Court that this country was
not a foreign country which had been invaded by an army with General Agha Mohammad Yahya
Khan as its Head, nor was it an alien territory which had been occupied by the said Army. She
then added that Martial Law could not have arisen in the circumstances and Pakistan had its own
legal doctrine which is the Qur’an and the Objectives Resolution and Martial law was never
superior to the Constitution. The Supreme Court held that Yayha Khan was neither a victor nor

3. Pakistan was an occupied territory and thus declared him a “Usurper”. All his actions were also
declared illegal. When Asma Jilani’s judgment was released, Yayha Khan was not in power but
now it was Bhutto’s Martial Law and Bhutto was the chief Martial Law administrator and the
president. This case paved the way for the restoration of democracy and it was followed by the
interim Constitution of 1972 and then by the permanent Constitution of 1973. Due to the judicial
decision in this case, Bhutto was compelled to remove the Martial Law.
This is a famous case which clearly illustrates the effect of a revolution and its impact on
the grundnorm. Based on this case, the assumptions was not justified and Kelsen’s theory was
not a universally accepted theory but Kelsen was only trying to law down a pure theory of law as
rule of normative science which consists of multiple systems of norms. Under the heading the
"Principles of Legitimacy" Kelsen points out those legal norms may be limited in time. The end
as well as the beginning of this validity is determined only by the order to which they belong.
They remain valid as long as they have not been invalidated in the way which the legal order
itself determines. This is the principle of legitimacy. Kelsen then describes the illegitimate way
of changing the legal norms by ways of a revolution, coup d’état which occurs whenever the
legal order of a community is replaced by a new order in an illegitimate way. Kelsen also says
that the victorious revolution and successful coup d’état are law as long as the territory and the
population remain; it is possible that international law recognizes the victorious revolution as
legal methods of changing the constitution. What Kelsen has said about the legitimacy of norm
and legal authority of a revolutionary Government must be read separately and not mixed up.
While revolution may destroy the existing national legal odor base after the change the reality of
the State has disappeared from behind that order, It does not follow that the legal order, which
replaces it, is the expression of the superior will of one or more revolutionaries who staged
victorious revolution or successful coup d’état. . Kelsen, therefore, does not contemplate an all
omnipotent President and Chief Martial Law Administrator sitting high above the society and
handing its behests downwards. No single man can give a constitution to the society which, in
one sense, is an agreement between the people to live together under an Order which will fulfill
their expectations, reflect their aspirations and hold promise for the realization of their selves. It
must, therefore, embody the will of the people which is usually expressed. Through the medium
of chosen representatives. It must be this type of constitution from which the norms of the new

4. legal order will derive their validity.
To conclude, it can be stated that the judgment of Asma Jilani’s cas was though
announced after the end of General Yahya Khan’s rule, yet it initially led to end of Bhuto’s
martial law and finally paved way for restoration of democracy and for adoption of constitution
of 1973. Another case which can be used to illustrate the effects of a revolution on the
Grundnorm is the case of State v Dosso. In 1958, General Ayub Khan took over power though a
military coup in Pakistan and abrogated the Constitution of 1956. When the coup was challenged
in courts, majority of the Supreme Court upheld Ayub Khan’s coup and takeover of power
explicitly relying on Kelsen’s theory. On the 7th October 1958, President Iskander Mirza
annulled the constitution of 1956, dismissed the Central and Provincial Legislatures, imposed
Martial Law and took over the entire administrative and legislative machinery. Immediately
thereafter Laws (Continuance in Force) Order 1958 was promulgated as a result of which laws,
other than the Constitution of 1956, which were in force before the assumption of authority by
Martial Law Administration, were validated and the jurisdiction of the Courts was restored.
The Supreme Court, headed by Chief Justice Mohammad Munir, held that since Article
5 of the late Constitution had disappeared from the new legal Order, the Frontier Crimes
Regulation 1901 by reason of Act IV of Laws (Continuance in Force) Order 1958 was still in
force and all proceedings in cases in which validity of that Regulation had been called in
question having abated, the convictions recorded and references made to the Council of Elders
were good. Where revolution is successful it satisfies the test of efficacy and becomes a basic
law creating fact. On that assumption the Laws (Continuance in Force) Order, however transitory
or imperfect, was a new legal order and it was in accordance with that order that the validity of
the laws and the correctness of judicial decisions had to be determined. The appeals were
accordingly disposed of.
Overall, in Kelsen’s General Theory of Law and State, he argues that a successful coup
d’état or revolution could create a new basic norm and therefore could be supported for a new
legal order. Once the revolution was shown to be efficacious in nullifying the old basic norm, it
had to be regarded as a la creating fact giving validity to a new legal order. The courts in Dosso’s
case contended that once a revolution was successful, it became a law creating fact on its own

5. and could not be longer judged in the light of the previous constitution. Justice Munir remarked
“A victorious revolution or a successful coup d’état is an internationally recognized legal method
of changing a Constitution.” At another point he remarked: “Where revolution is successful, it
satisfies the test of efficacy and becomes a basic law-creating fact.” In sum, the previous
constitution was not valid anymore because the system of legal norms decreed under that
constitution had ceased to be implemented on ground because it failed the test of efficacy.
Lastly, a revolution may have a significant impact on the grundnorm as demonstrated from the
cases in Pakistan. As long as an individual has power and determination, he can use violence to
drastically change the norms either for the better or for worse.