Constitutional Development History Of Pakistan

BACKGROUND:

“Now or Never”
a. Chaudhry Rehmat Ali
b. Aslam Khan Khattak
c. Inayat ullah Khan
d. Sadiq Khan
All of these were in Cambridge and coined the name Pakistan without an “I”
In 1933 it was thought that every local has its own identity and it must be conserved

Punjab —> P
NWFP —> A
Kashmir —> K
Sindh —> S
Balochistan—> TAN

The rst constitution was Indian independence act of 1935 It gave a parliamentary form of
government.
After independence Bangladesh had majority of population and demanded that Bengali
should also be considered as national language
In 1956 rst constitution was made it was also parliamentary form of government
In 1960 General Ayub Khan imposed martial law and introduced presidential form of
government.

Forms of Governments:
1. Unitary:
All powers are of Capital. After 18th amendment it was changed —> 80%
2. Federation:
Division of powers between capital and provinces —>50%
3. Confederation:
Only defence and foreign a airs are with senate rest all of the powers are given to
provinces.—> 80% ( Currency, Foreign Policy & Military)

FORM OF GOVERNMENT IN PAKISTAN:

Form of 1935 1956 1962 1973
Govrnement

Federal Parliamentary Presidential Parliamentary

Legislature Bi-cameral Uni-cameral Uni-cameral bi-cameral

Believer Secular Islamic Republic Absent State Religion

Rights Not Enforced

In federalism citizens were subjects of the state, but in Parliamentary reign citizens were known
and treated as citizens instead of subjects.
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 In 1973 all types of school of thoughts give their assent in it. In principles of policy Allah is
sovereign and elected representatives are delegated to use powers in order to run the system

PRE-INDEPENDENCE CONSTITUTIONAL FRAMEWORK

Government of India Act, 1935

Passed by British Parliament, became the interim constitution of Pakistan (1947–1956)

Key Features:

1. Federal system (though not fully implemented)

2. Provincial autonomy introduced
3. Parliamentary structure
4. Strong powers for Governor-General
Importance:

Provided the administrative and legal foundation for Pakistan after independence

POST-INDEPENDENCE CONSTITUTIONAL DEVELOPMENT

Early Challenges (1947–1956)

After independence, Pakistan faced:

1. Lack of a permanent constitution

2. Political instability
3. Language controversy between East and West Pakistan
Language Issue

East Pakistan (majority population) demanded:

Recognition of Bengali and West Pakistan supported Urdu
This con ict later contributed to discontent and the separation of East Pakistan (1971)

1956 Constitution
Introduction

• First constitution of Pakistan

• Declared Pakistan as Islamic Republic
Features:

1. Parliamentary system
2. President as ceremonial head
3. Prime Minister as executive authority
4. Fundamental rights guaranteed
5. Federal structure
Weaknesses:

1. Political instability
2. Frequent changes in government
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Result: Abrogated in 1958 (Martial Law)

1962 Constitution
Introduced by:

Ayub Khan
Features:

1. Presidential system
2. Strong executive (President)
3. Indirect elections (Basic Democracy system)
4. Centralized governance
Criticism:

1. Reduced democratic participation

2. Limited political freedoms
Result: Lost legitimacy and ended after Ayub’s fall

1973 Constitution (Current Constitution)

Importance:

The most successful and lasting constitution is based on the consensus of all political parties

Features:

1. Parliamentary system restored

2. Bicameral legislature:
A. National Assembly
B. Senate
3. Federal system
4. Islam as the state religion
5. Fundamental rights guaranteed

Sovereignty Principle:

Sovereignty belongs to Allah Almighty, and elected representatives exercise authority. This re ects
a blend of democracy and Islamic principles

THREE LIST

Federal legislative List: 1935, 1956, 1962, 1973

All powers are with federation

Provincial list
All powers are with provinces
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 Concurrent list
Liability lies between both federation as well as provinces
Under 18th amendment concurrent list was dissolved

THREE LEGISLATIVE LISTS (Pakistan Constitutional Law)

Pakistan’s constitutional framework distributes legislative powers between the Federation and
Provinces through three lists:

1. Federal Legislative List

2. Provincial Legislative List
3. Concurrent Legislative List

1. Federal Legislative List

De nition

• Contains subjects on which only the Federal Government (Parliament) can legislate.
Historical Presence

• Found in:
◦ Government of India Act, 1935
◦ Constitution of 1956
◦ Constitution of 1962
◦ Constitution of 1973
Key Principle

All powers in this list belong exclusively to the Federation

Important Subjects

Examples include:

• Defence & armed forces

• Foreign affairs
• Currency, banking & nance
• Atomic energy
• Citizenship & immigration
• Railways, airways, major ports
• National taxation (income tax, customs)
Structure (1973 Constitution)

• Divided into:
◦ Part I (e.g., defence, currency)
◦ Part II (e.g., CCI-related subjects like electricity, oil, natural gas)
Signi cance

• Ensures:
◦ National unity
◦ Uniform policies on matters of national importance
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 2. Provincial Legislative List

De nition

• Contains subjects on which only Provincial Assemblies can legislate.

Key Principle

All powers belong exclusively to Provinces

Subjects Include

• Police & public order

• Health & hospitals
• Education (after 18th Amendment)
• Agriculture
• Local government
• Land & revenue
• Culture and provincial matters
Post-18th Amendment Position

• Provinces gained greater autonomy

• Many subjects shifted from concurrent list to provinces
Signi cance

• Promotes:
◦ Decentralization
◦ Local governance
◦ Better handling of regional issues

3. Concurrent Legislative List (Now Abolished)

De nition

• Subjects on which both Federation and Provinces could legislate

Key Principle

Shared legislative authority

Important Rule (Before Abolition)

• If con ict occurred:

◦ Federal law prevailed over provincial law
Subjects Included

• Criminal law & procedure

• Marriage & divorce
• Contracts
• Labour welfare
• Environmental regulation
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 Abolition under 18th Amendment (2010)

18th Amendment of Pakistan

•Concurrent List was abolished

•Most subjects transferred to:
◦ Provinces
Impact

• Strengthened:
◦ Provincial autonomy
◦ Federalism
• Reduced:
◦ Federal interference in provincial matters

Comparison of the Three Lists

| Feature | Federal List | Provincial List | Concurrent List (Pre-2010) |

| Authority | Federation only | Provinces only | Both |

| Con ict Rule | Not applicable | Not applicable | Federal law prevails |
| Status Today | Exists | Exists | Abolished |
| Purpose | National matters | Local matters | Shared governance |

Key Constitutional Principle

• Pakistan follows a federal system

• Powers are distributed to:
◦ Maintain balance between unity and autonomy

3rd June plan 1947 of Mountbatten Plan

1. Partition proposal: o cially accepted
2. Dominion status: sovereignty
3. Portioned provinces: Punjab & bengal
4. Referendums: Syal / Assam
5. Boundary Commission: Rad Cli
6. Independence: Accepted by National congress & Muslim league 1947 Independence
Act.

The 3rd June Plan, commonly known as the Mountbatten Plan, was the nal roadmap for the
partition of British India and the creation of two independent dominions: India and Pakistan. It was
formulated by Lord Mountbatten, the last Viceroy of India, after it became clear that the Cabinet
Mission Plan had failed and communal tensions were at a breaking point.
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 1. Of cial Acceptance of the Partition Proposal

By June 1947, the political deadlock between the Indian National Congress and the All-India
Muslim League regarding a united India was deemed irreversible. Lord Mountbatten proposed the
partition of the subcontinent as the only viable solution to prevent a civil war.

• Congress: Accepted partition to ensure a strong central government for the remaining parts
of India.

• Muslim League: Accepted the "moth-eaten" Pakistan as the only way to achieve a
sovereign Muslim state.

2. Dominion Status and Sovereignty

The plan abandoned the idea of a long transition period. Instead, it proposed:

• The immediate transfer of power on the basis of Dominion Status (rather than waiting for a
constitution to be fully drafted).

• Both India and Pakistan would be sovereign states within the British Commonwealth, with
the right to secede from the Commonwealth later if they so chose.

3. Partitioned Provinces: Punjab and Bengal

One of the most contentious points was the division of the two largest Muslim-majority provinces.

• The plan stated that the Legislative Assemblies of Punjab and Bengal would meet in two
sections (Muslim-majority and non-Muslim-majority districts).

• If either section voted for partition by a simple majority, the provinces would be divided.
Ultimately, both voted to split, leading to the creation of West Punjab (Pakistan), East
Punjab (India), East Bengal (Pakistan), and West Bengal (India).

4. Referendums (Sylhet and NWFP)

To ensure the "will of the people," referendums were conducted in speci c areas:

• Sylhet (Assam): A referendum was held to decide whether Sylhet would remain in Assam
or join East Bengal. The people voted to join East Bengal (Pakistan).

• NWFP (Khyber Pakhtunkhwa): A referendum was also held in the North-West Frontier
Province, where the majority voted to join Pakistan.

5. Boundary Commission: The Radcliffe Line

Since the provinces were to be divided, a Boundary Commission was established to demarcate the
exact borders.

• It was chaired by a British lawyer, Sir Cyril Radcliffe.

• Two commissions were formed (one for Bengal and one for Punjab). Radcliffe had to draw
lines based on "contiguous majority areas" of Muslims and non-Muslims, along with other
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 factors like infrastructure and irrigation. The resulting borders are known as the Radcliffe
Line.

6. The Indian Independence Act of 1947

The principles of the 3rd June Plan were given legal effect by the British Parliament through the
Indian Independence Act, 1947.

• Sovereignty: The act formally ended British rule in India.

• Date of Independence: It set August 15, 1947, as the date for the transfer of power (though
Pakistan celebrates its independence on August 14).

• Princely States: The British "Paramountcy" over princely states lapsed, leaving them
technically free to join either India or Pakistan (or remain independent, though this was
practically discouraged).

Objective Resolution (1949) – Detailed Notes

Introduction

• The Objective Resolution was passed on 12 March 1949 by the Constituent Assembly of
Pakistan.
• It was presented by Liaquat Ali Khan.
• It laid down the basic principles and philosophy of Pakistan’s future Constitution.
• It is considered the “abstract” or foundation of all later constitutions (1956, 1962, 1973).

1. Sovereignty

• The Resolution declares that:

Sovereignty belongs to Allah Almighty alone.
• Authority exercised by the State is:
A sacred trust given by Allah.
Meaning:

• No ruler has absolute power.

• Power must be exercised within Islamic limits.
• Government is accountable to Allah.

2. Will of the People (Democracy)

• Authority will be exercised:

Through the chosen representatives of the people.
Meaning:

• People have the right to choose their leaders.

• Establishes democracy in Pakistan.
• Emphasizes direct or indirect elections.
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3. Chosen Representatives

• The state authority is exercised by:

Elected members of the Assembly.
Meaning:

• Leaders are not imposed; they are elected.

• Promotes representative government.
• Rejects dictatorship and monarchy.

4. Principles of Democracy

The Resolution ensures:

• Freedom
• Equality
• Tolerance
• Social justice
Meaning:

• These principles are based on Islamic teachings.

• Guarantees a fair and just society.

5. Role of Islam (For Muslims)

• Muslims will be enabled:

To live their lives according to the Quran and Sunnah.
Meaning:

• Laws should not contradict Islam.

• Encourages an Islamic way of life.
• Basis for later institutions like:
◦ Council of Islamic Ideology

6. Rights of Minorities

• Minorities are guaranteed:

Freedom to profess and practice their religion.
Meaning:

• Ensures religious freedom.

• Protects:
◦ Worship
◦ Culture
◦ Religious institutions

7. Theories (Present & Future Guidance)

 • The Resolution is:
Not a complete constitution but a guiding framework.
Meaning:

• It provides principles for future law-making.

• Applicable:
◦ At present
◦ For future constitutional development

8. Fundamental Rights

The Resolution promises:

• Basic human rights

• Equality before law
• Protection of life and liberty
Meaning:

• No discrimination
• Rule of law must prevail
• Foundation for later Fundamental Rights chapters in constitutions

Importance of Objective Resolution

• First constitutional document of Pakistan

• Basis of all constitutions
• De nes Islamic + democratic identity
• Incorporated in:
◦ 1973 Constitution (Article 2A)

Address of the Founder of Pakistan Quaid-e-Azam Muhammad Ali Jinnah

on 11th August, 1947 to 1st Constituent Assembly

[Link]

Executive Summary

The speech serves as a foundational blueprint for Pakistan, emphasizing that the state should be
built on social justice, religious freedom, and equal citizenship. Jinnah identi es the immediate
administrative challenges—such as corruption and lawlessness—while urging the nation to move
past communal identities to embrace a uni ed political identity as Pakistanis.

Key Pillars of the Speech

• The Dual Role of the Assembly: The Constituent Assembly holds supreme power with two
tasks: framing a permanent Constitution and acting as the immediate sovereign legislative
body for the country.
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 • The First Duty of State: Jinnah asserts that the absolute priority of any government is to
maintain law and orderand protect the life, property, and religious beliefs of its people.

• A War on "Social Curses": He identi es four major evils that must be crushed "with an
iron hand":

◦ Bribery and Corruption: Labeled as a poison to society.

◦ Black-marketing: Called a "colossal crime" that causes starvation and death.

◦ Nepotism and Jobbery: He pledges zero tolerance for favouritism or political

in uence in government appointments.

• The Philosophy of Inclusive Nationalism: Jinnah argues that the division of India was the
only solution to avoid disaster. He advocates for "burying the hatchet" and working in a
spirit of cooperation where everyone—regardless of colour, caste, or creed—is " rst,
second, and last a citizen of this State."

• Religious Freedom and Secular Politics: In his most famous declaration, he states:
"You are free; you are free to go to your temples, you are free to go to your mosques or to
any other places of worship in this State of Pakistan." He clari es that while religion is a
personal faith, it has no bearing on the business of the State.

• The Goal of Political Assimilation: He envisions a future where communal "angularities"

(differences) vanish, and citizens are identi ed not by their religion in a political sense, but
as equal members of a single nation.

• The Guiding Principle: The Quaid concludes by promising that his leadership will be
guided by justice and fair play, characterised by complete impartiality and the absence of
prejudice.

These clauses represent the constitutional foundation of Pakistan’s identity as an Islamic Republic.
They de ne the relationship between the state and religion, moving the Objectives Resolution from
a mere preamble (an introduction) to a "substantive" (enforceable) part of the law.

Article 2: Islam as the State Religion

This article declares that Islam shall be the state religion of Pakistan.

• Symbolic and Legal Weight: It establishes Pakistan’s identity as a confessional state.

• Constitutional Consistency: While it establishes Islam as the state religion, other parts of
the Constitution provide for the rights of minorities to practice their own religions. However,
this article ensures that the state’s character and its of cial ceremonies are Islamic.

Article 2A: The Objectives Resolution

The Objectives Resolution was originally passed in 1949. For decades, it served only as a
"preamble"—a statement of intent that didn't have the power of law. In 1985, under the leadership
of General Zia-ul-Haq, Article 2A was added to make the Resolution a substantive part of the
Constitution.
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What does "Substantive Part" mean?

By becoming substantive, the principles of the Objectives Resolution became legally enforceable.
This means:

1. Judicial Review: Courts can use the Resolution as a benchmark to interpret other laws.

2. Supremacy of Sovereignty: It establishes the core principle that sovereignty over the
entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the
people of Pakistan is a "sacred trust" within the limits prescribed by Him.

Key Principles of the Objectives Resolution (Now under 2A)

Since Article 2A incorporates the Resolution, the following principles are now constitutional
requirements:

• Sovereignty: Authority is delegated by God to the State of Pakistan through its people.

• Democracy: The State must exercise its powers through the chosen representatives of the
people.

• Islamic Way of Life: Muslims shall be enabled to order their lives in accordance with the
teachings and requirements of Islam.

• Protection of Minorities: Provisions must be made for religious minorities to freely profess
and practice their religions and develop their cultures.

• Independence of Judiciary: The Constitution must guarantee the independence of the

judiciary to ensure justice.

• Fundamental Rights: All citizens must be guaranteed fundamental rights, including

equality of status, opportunity, and social, economic, and political justice.

Feature Fundamental Rights (Arts. 8-28) Principles of Policy (Arts. 29-40)

Nature Mandatory and Enforceable Guiding and Aspirational
Court Courts can strike down laws that Courts generally cannot enforce
Action violate these. these.
Police Must respect these or face legal Should strive for these in their long-
Role action. term goals.
Limited by "resources and
Constraint No excuse for violation.
circumstances."

FEDERATION Vs MAULVI TAMEZUDDIN

Doctrine of Necessity in 1954

Malana Tameez Ud Din went to the Sindh Chief Court and le writs of Mandamus & Quo
Warranto. This gave assent to Federal
1935 act was interim Act. In it 223A 5 writs were given.
After this the power of Governor general was reduced.
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 After 18th doctrine of necessity was dissolved as no one can in future do his lobbying Eg;
if 1 lac people stands and says A is PM from now on thus it will be considered invalid.

The case of Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) is a watershed

moment in Pakistan’s constitutional history. It established the "Doctrine of Necessity,"
which profoundly in uenced the country's legal and political trajectory for decades.

1. Background: The Dissolution

In 1954, the Governor-General of Pakistan, Sir Ghulam Muhammad, dissolved the rst
Constituent Assembly. The Assembly had been moving toward a constitution that would
signi cantly curtail the Governor-General’s powers.

Maulvi Tamizuddin Khan, the President of the Constituent Assembly, challenged this
dissolution in the Sindh High Court (then the Chief Court of Sindh) via a writ petition.

2. The Sindh High Court Ruling

The Sindh High Court ruled in favor of Maulvi Tamizuddin. They held that:

• The Governor-General did not have the authority to dissolve the Constituent
Assembly.

• The Assembly was a sovereign body.

• The court issued writs of Mandamus and Quo Warranto, effectively restoring the
Assembly.

3. The Federal Court Appeal

The Federation of Pakistan appealed to the Federal Court (now the Supreme Court). The
bench was headed by Chief Justice Muhammad Munir.

In a landmark decision, the Federal Court overturned the Sindh High Court's ruling, but
they did so on a technicality regarding the Section 223-A of the Government of India Act,
1935.

Key Arguments of the Federal Court:

• Royal Assent: The court ruled that all laws passed by the Constituent Assembly
required the formal assent of the Governor-General to become valid law.

• Invalidity of Section 223-A: Since Section 223-A (which gave the High Court the
power to issue writs) had not received the Governor-General’s assent, it was
technically not law.

• Jurisdiction: Therefore, the Sindh High Court had no jurisdiction to issue the writs
in the rst place.
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4. Justice Cornelius’s Dissent
Justice A.R. Cornelius was the lone dissenting voice. He argued that:

• The Constituent Assembly was a sovereign body.

• The Governor-General’s assent was not necessary for constitutional acts, as the
Assembly was performing the duties of the "Crown in Parliament."

• His dissent is still celebrated as a defense of democratic sovereignty.

5. The Aftermath and Legacy

The ruling created a legal vacuum; if many laws lacked "assent," then the very legal
framework of the country was at risk of collapsing. To x this, the court later invoked the
Doctrine of Necessity.

Impact:

• Executive Overreach: It gave legal cover to the executive to bypass the legislature
in "extraordinary" circumstances.

• Constitutional Precedent: It set a precedent that was later used to validate

various military coups and martial law regimes in Pakistan's history.

• Shift in Sovereignty: Sovereignty shifted from the representatives of the people

(the Assembly) to the executive (the Governor-General/President).

DOSSO VS STATE
The case of State v. Dosso (1958) is the legal follow-up to the precedent set in Maulvi Tamizuddin.
It is most famous for being the rst case in Pakistan to provide a legal cover for a military coup,
entrenching the "Doctrine of Necessity" into the country’s jurisprudence.

1. The Background

The case actually started with a criminal matter. A man named Dosso was convicted of murder by a
tribal Jirga (Council of Elders) under the Frontier Crimes Regulation (FCR), 1901.

The High Court struck down the FCR, ruling it was unconstitutional because it violated the right to
"equality before the law" guaranteed by the 1956 Constitution. The State appealed this to the
Supreme Court.

2. The Turning Point: The 1958 Coup

While the appeal was pending, President Iskander Mirza declared Martial Law on October 7,
1958, abrogated (abolished) the 1956 Constitution, and dissolved the legislatures. He then issued
the Laws (Continuance in Force) Order, 1958, which stated that the country would be governed
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as nearly as possible by the old constitution, but the courts could no longer enforce fundamental
rights.

3. The Supreme Court's Decision

Chief Justice Muhammad Munir (the same judge from the Tamizuddin case) led the bench. The
Court ruled that:

• A Successful Revolution is a Legal Methodology: Relying on the legal theory of Hans

Kelsen, Munir argued that if a revolution or coup is "successful," it destroys the old legal
order and replaces it with a new one.

• The Constitution is Gone: Since the 1956 Constitution was abrogated, the Fundamental
Rights contained within it no longer existed.

• The FCR is Valid: Because the court could no longer judge laws against "fundamental
rights," the Frontier Crimes Regulation was back in force, and Dosso’s conviction by the
Jirga was upheld.

4. The "Kelsenian" Theory

The court essentially argued that "might makes right." According to their interpretation:

• A victorious revolution is a recognized legal method of changing a constitution.

• Once the new order is established, it becomes the new "Basic Norm" (Grundnorm).

5. The Aftermath and Reversal

The Dosso decision gave a "blank check" to military rulers for the next decade. However, its legal
logic was eventually rejected:

• Asma Jilani v. Government of Punjab (1972): The Supreme Court nally overruled the
Dosso decision, calling it "coram non judice" (without jurisdiction). The court declared that
Munir had misinterpreted Kelsen’s theory and that a military usurper cannot change the
constitution of a country through a coup.

Summary

• Key Outcome: Legalized the 1958 Martial Law.

• Legal Legacy: Established that a successful coup is a valid way to change the law.

• Historical Note: This case is often cited as the low point of judicial independence in
Pakistan, as it prioritized "order" and "necessity" over constitutional supremacy.

1. The Main Con ict: Fundamental Rights vs. Tribal Law

The case began with a simple but intense legal clash over how a murder should be tried:

• The Crime: A man named Dosso was convicted of murder by a Loya Jirga (a council of
tribal elders) under the Frontier Crimes Regulation (FCR).
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 • The Legal Argument: Dosso challenged this, arguing that the FCR was a "black law" from
the colonial era. He claimed it violated the 1956 Constitution, which guaranteed "Equality
before the law." He argued that as a citizen, he should be tried in a regular court, not by a
tribal council.

• The Con ict: The High Court agreed with Dosso. The State (the Federation) appealed to the
Supreme Court to save the FCR.

2. The Twist: The 1958 Military Coup

While the Supreme Court was listening to the appeal, the political landscape shifted completely.
President Iskander Mirza declared Martial Law, threw out the 1956 Constitution, and took total
control.

This put the judges in a corner:

• If they followed the 1956 Constitution, they would have to rule against the new military
government.

• If they followed the military, they would have to admit the Constitution was dead.

3. Why it became so "Famous" (or Infamous)

The case is legendary in law schools for three main reasons:

A. The Legalization of "Might is Right"

Chief Justice Muhammad Munir ruled that because the military coup was successful, it was now
the legal authority. He used Hans Kelsen’s theory to argue that a "successful revolution"
automatically wipes out the old law and creates a new one.

B. The Death of Fundamental Rights

The Court ruled that since the Constitution was gone, the Fundamental Rights of citizens had also
vanished. This meant Dosso could no longer complain about "equality before the law," and his
conviction by the tribal council was upheld.

C. The "Door to Dictatorship"

This case provided the "Legal Formula" for every future military coup in Pakistan. By telling the
military, "If you successfully take over, we will call it legal," the court essentially encouraged extra-
constitutional actions.

Hans Kelson theory of Pure Theory of law:

To simplify Hans Kelsen’s Pure Theory of Law, think of it as a "Law-Only" approach. He wanted
to look at law like a mathematician looks at numbers—without worrying about whether the
numbers are "kind" or "fair."

1. The "Pure" Part

Kelsen believed that to understand law, you must remove everything else.
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 • No Politics: Law isn't about who has the most power.

• No Morality: Law isn't about what is "good" or "evil."

• No Sociology: Law isn't about why people break rules.

• De nition: Law is simply a system of rules (norms) backed by a threat (sanction).

2. The "Pyramid" of Rules

Kelsen argued that every law gets its power from a "higher" law. It looks like a ladder:

1. The Bottom: A police of cer nes you. Why? Because a Local Law says he can.

2. The Middle: Why is that local law valid? Because the National Legislature passed it.

3. The Top: Why does the Legislature have power? Because the Constitution gives it to them.

3. The "Grundnorm" (The Master Rule)

This is Kelsen’s most famous idea. If the Constitution gives power to the laws, what gives power
to the Constitution?

• Kelsen says there is an imaginary "Master Rule" at the very top called the Grundnorm.

• It is the "Starting Point" that everyone just agrees to follow. It’s like the "Rule #1" of a
country: "The Constitution must be obeyed."

4. The Law as a "Machine"

For Kelsen, law works like a logical formula:

"If you do X, then Y ought to happen."

• If you steal (X), then you ought to be jailed (Y).

• The law doesn't care if you stole because you were hungry (morality); it only cares that the
formula was triggered.

Why it matters for your Law Studies:

In the Dosso Case, the court used this theory to say: "The old Grundnorm (Constitution) was
destroyed by the coup. The new Military Order is now the new Grundnorm. Therefore, it is the law."

In short: Kelsen’s theory is a "legal hierarchy" where the only thing that makes a law valid is that a
higher law authorized it.
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