Grundnorm In Transition - A Kelsenian Perspective On Bangladesh’s Recent Regime Change

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:07:16.730877+00:00

Updated: 2026-08-26T17:11:23.231+00:00

GRUNDNORM IN TRANSITION: A KELSENIAN

PERSPECTIVE ON BANGLADESH’S RECENT REGIME

CHANGE

D Kusumitha Rao, B.A. L.L.B (Hons.), National Law University and Judicial Academy,

Assam

ABSTRACT

This paper, titled ‘Grundnorm in Transition: A Kelsenian Perspective on Bangladesh’s Recent Regime Change’, seeks to analyse the 2024 political transformation in Bangladesh through the theoretical framework of Hans Kelsen’s Pure Theory of Law. Kelsen’s notion of the Grundnorm or ‘basic norm’ establishes the foundational source of validity for all legal norms within a legal system. This study applies the mentioned concept to examine whether the overthrow of Sheikh Hasina’s government and the subsequent establishment of an interim regime led by Muhammad Yunus, signify the emergence of a new legal order. By evaluating the principles of legitimacy and effectiveness propounded by Kelsen in his book ‘Pure Theory of Law’, the paper aims to explore the legal continuity and constitutional validity of the new regime.

It further explores how the change in government challenges the existing constitutional framework and whether the effectiveness of the interim authority can substitute for formal legitimacy. The research also addresses major criticisms of Kelsen’s theory, particularly its abstraction, moral neutrality, and limitations in explaining revolutionary legality. Through this analysis, the paper aims to contribute to the broader discourse on the relationship between law, revolution, and constitutional legitimacy in periods of modern political transition. Keywords: Hans Kelsen, Grundnorm, legitimacy, Regime change, Legal order.

I. INTRODUCTION

Hans Kelsen was one of the landmark German Legal Positivist. He, in his book, ‘Pure Theory of Law’, introduced the concept of Grundnorm to the world. He was one of the earliest jurists, who separated legal validity from both morality and existing social facts. He developed a “pure” theory of law, that was devoid of extra-legal elements like politics, sociology, ethics, morality and ideology. In his book, he also devised the principle of legitimacy and principle of effectiveness. The project would explore his theory of law by applying it to one of the contemporary world events. In 2024, Bangladesh witnessed a dramatic political shift with the overthrowing of Sheikh Hasina, ending over 15 years of uninterrupted rule as the Prime Minister of the country, hence leading to the establishment of an interim government.

The transition, that was largely peaceful compared to the past coups in South Asia, effectively deconstructed the existing political order under former Prime Minister, Sheikh Hasina. This has raised vital jurisprudential questions regarding the legal legitimacy and continuity of the country’s constitutional framework. This project aims to critically analyse and apply Hans Kelsen’s Grundnorm theory to the 2024 regime change in Bangladesh, seeking to ascertain if there has been an emergence of a new legal order. It also aims to determine if the regime change satisfies the conditions proposed by Hans Kelsen regarding the legal validity. It would critically analyse this particular event in the light of the broader questions about law, revolution, constitutional durability in the situations of crises, and so on.

It would also deal with the questions regarding the validity and reestablishment of Grundnorm, under the Kelsenian framework of legal theory.

1.1 AIMS:

This project aims to study the recent regime change in Bangladesh in the light of the legal theory propounded by Hans Kelsen, in his book, ‘Pure Theory of Law’. Through the critical analysis and application of the concept of Grundnorm, this project aims to determine the legal validity of the new government and constitutional continuity under the new legal order. Also, through a comprehensive analysis of certain cases, this project aims to arrive at a particular conclusion regarding the legal validity of the regime change in the country.

1.2 OBJECTIVES:

The objectives of the project are summarised as under: • To examine Hans Kelsen’s theory of Grundnorm, and concepts of legal continuity, legitimacy and creation of new legal order, and its relevance in analysing the regime change in Bangladesh. • To determine if the new government formed in Bangladesh is legitimate under Kelsen’s criteria of effectiveness and acceptance.

1.3 LITERATURE REVIEW:

“Pure Theory of Law” by Hans Kelsen1 is considered as a landmark work in the development of modern jurisprudence. This book defines law and differentiates it from concepts of metaphysics, ethics, politics, etc. Hans Kelsen is considered as one of the most influential jurists of the twentieth century. Through this book of his, he introduced the concept of Grundnorm and addressed various other related factors to this. His theories laid down the foundation for political and legal orders in many countries of the world. His work was also later cited in certain landmark judgements across the world. This book has helped the researcher in understanding the theory. The book, however contains ideas that are abstract in nature and the researcher addresses this ambiguity in the book through her research paper.

Through a thorough analysis of the above-mentioned theory, the researcher has sought to address the various gaps arising in the theory. Also, the book does not mention any practical application of the theory on any real-life scenario. By analysing the application of the theory, the researcher seeks to address this research gap. The researcher has based her work on the landmark concept of Grundnorm, provided by this jurist, and its application to the recent regime change in Bangladesh. “Jurisprudence” by Suri Ratnapala2 is one of the most referred books by law students across the world. This book provides a comprehensive view about the various legal theories and its theorists. It helps the students in understanding the various concepts fundamental to the subject of jurisprudence, by providing a comprehensible and accessible introduction to the legal

1 HANS KELSEN, PURE THEORY OF LAW (2nd ed. 2002) (1967).

2SURI RATNAPALA, JURISPRUDENCE (1st ed. 2009).

theories. This book offers both historical context as well as the contemporary relevance of various theories of law. The researcher has relied on this book in order to strengthen the basics of the various theories of law, hence, helping the researcher in a comprehensive analysis of the topic and its relevance. However, the book provides a very brief idea about the theory given by Hans Kelsen, which the researcher explains in her project. The book also lacks a limited critical perspective of the theory and the application of the theory. Hence, to address this, the researcher has provided a critical and analytical perspective of the theory, throughout the research paper. “The Argument from Injustice – A Reply to Legal Positivism” by Robert Alexy3 offers a powerful critique of the various theories of legal positivism.

In this book, he criticises the principle of Grundnorm, as laid down by Hans Kelsen. Unlike the positivists, he establishes that a necessary connection exists between law and morality. This book has helped the researcher in critically analysing the theory laid down by Hans Kelsen in the context of regime change, as was observed in Bangladesh in 2024. This critical analysis has helped the researcher in determining the legitimacy of the new regime in the country. Though the book criticises the theory given by Kelsen through a naturalist point of view, it lacks criticism that is based on a positivist approach. The researcher has aimed to address this gap in her research paper. She has not only criticised the “pure theory” given by Kelsen through a moralist perspective but also through the lens of positivism.

1.4 RESEARCH QUESTION:

1. Can the legal order established after the 2024 revolution in Bangladesh be considered

valid under the principle of effectiveness according to Kelsen’s theory?

II. HANS KELSEN’S GRUNDNORM AND THE DYNAMICS OF LEGAL SYSTEM:

AN OVERVIEW

Hans Kelsen, in his book ‘Pure Theory of Law’ has provided for the “pure” theory regarding the science of law, that is, jurisprudence. The “pure” theory is a positive theory of law. It attempts to answer what and how the law is, not how it ought to be4. Hence, separating it from other elements such as legal politics. This particular aspect is the basis of the theory.

3 ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE: A REPLY TO LEGAL POSITIVISM (1st ed.

2002).

4 HANS KELSEN, PURE THEORY OF LAW, 1 (2nd ed. 2002) (1967).

Kelsen, in order to explain his theory has put forward the idea of norm. from this very idea, he further develops the concept of the basic norm, the Grundnorm, which is fundamental to his “pure” theory of law. Kelsen, through this concept, further analysed the dynamic aspect of law.

2.1 NORM:

German legal positivists, including Hans Kelsen, differentiated law from both facts and morals, unlike the British legal positivists, who regarded law as fact. In Kelsen’s ‘pure’ theory of law, he clearly explains and distinguishes ‘law’ from both facts and morals. He elaborates that ‘fact’ consists of events that happen in the world. Fact are about what is5. He explained that facts consist of statements like, “a stone thrown in the air, falls to the ground”. This fact can be validated by the existence of other facts, like in this case, gravity. Kelsen, further explained that norms can be differentiated from facts. Unlike facts, that describes what there is, a norm describes what ought to be or not ought to be done. It is devoid and independent of the facts that exist. However, like facts, norms are derived from the existence of other norms.

For example, if the norm of the land is “anyone who commits theft, ought to be punished”, which is derived from the existence of another norm in the society, this particular norm is independent of the fact that whether the thief is actually punished or not. This “implies that it does not ceases to be norm if it is not seen to applied in certain cases, for example, a person can commit theft but still may not be caught, however, the norm that the thief ought to be punished still remains a”norm. Hans Kelsen, in his book, has defined, “norm” “is the meaning of an act by which a certain behaviour is commanded, permitted or authorised6. He further describes that norm can be authorised by a norm, which has the character of a ‘higher’ norm. This, allowed him to further bring in the concept of Grundnorm. ”

2.2 GRUNDNORM:

Kelsen, “in his book explained the concept of norm and explained how every norm in a legal system can be authorised by another norm. A norm that confers validity on a norm, derives its

5 SURI RATNAPALA, JURISPRUDENCE, 58 (1st ed. 2009).

6 HANS KELSEN, PURE THEORY OF LAW, 5 (2nd ed. 2002) (1967).

own validity from another. This digression cannot go on forever. It comes down to a particular norm which is the basic norm of the legal system”. This, Kelsen, termed as the Grundnorm. This“can be explained by the act of handing over money to a gangster and an income-tax official. Here, though it can be observed that the subjective meaning of the act, that is, the handing over of the money, is the same, however, the handing over of the money to the official is considered valid since this particular act has objective legal meaning. This objective meaning of the act of the income-tax official can be derived from the authorisation of a tax law in place, however the act of the gangster cannot be derived from any such norm. hence, this makes the act of the income tax official valid and the gangster’s act invalid”.

Kelsen describes that “such a presupposition, establishing the objective validity of the norms of a moral or legal order, would be called a basic norm (Grundnorm)”7. Norms which specify the conduct of a human can also be derived from the custom provided it is instituted by a “higher norm as a norm-creating fact”8.

2.3 VALIDITY OF THE NORM:

As “mentioned earlier a norm is an ought and not an is. A legal norm can still be considered valid and binding even if the person or authority who created it is no longer present, or the intention behind its creation no longer exists. Therefore, a norm can be valid, even if the act of whose will meaning the norm is, no longer exists9. Since the validity of a norm is an ought and not an is, effectiveness, that is based on facts like the application of the norm and the obedience of the norm, it does not mean validity of the norm in itself. To actually say that a norm is “valid” there is something else than”just the obedience and application of the norm, that is, the factor that the norm ought to be obeyed and applied.

However, it was also observed by Kelsen that though effectiveness is not validity in itself, yet a minimum degree of effectiveness is required to determine whether the norm is valid.

7 Id at 8.

8 Id at 9.

9 Id at 10.

Kelsen also mentioned how effectiveness and validity of a norm are two different things with an example. “A legal norm becomes valid before it becomes effective, that is, before it is applied and obeyed; a law court that applies a statute immediately after promulgation- therefore before statute had a chance to become “effective”- applies a valid legal norm. But a legal norm is no longer considered to be valid, if it remains permanently ineffective10.”

2.4 REVOLUTION:

Sometimes, “the basic norm of the legal order changes not by the means specified in the constitution in place, but by illegitimate ways. This change is ‘revolution’. This revolution can happen in two ways, consensual or by force. A consensual revolution occurs when a fundamental change in the legal system occurs through legal or agreed upon means. This would still lead to change in the basic norm of the country. However, revolution by force occurs when the old legal order is overthrown through illegal means such has military coups, violent uprising etc. To understand this, Kelsen brings forth two principles, that is principle of legitimacy, which states that, the norm is valid until it is terminated in a way determined by this legal order or replaced by the validity of another norm of this order11.

Whereas the principle of effectiveness which relies on the fact whether a norm is actually obeyed and applied. In cases of revolution by force, the change in the Grundnorm of the country is believed to be valid if the norm is effective. Hence, in these cases, the principle of legitimacy is limited by the principle of effectiveness. In the upcoming chapters, the change in the legal order of Bangladesh would be critically examined to determine if the legal order that was brought in place by a massive uprising in the country amount to the establishment of a valid Grundnorm. ”

III. APPLYING THE GRUNDNORM THEORY TO BANGLADESH’S REGIME

CHANGE

The “year 2024 marked a year of political unrest and uncertainty in the Bangladeshi politics. The sudden resignation of the then Prime Minister, Sheikh Hasina, who ruled for around 15

10 Id at 11.

11 Id at 209.

years caused political disruption. This sudden regime change marked by student uprising and mass movements, and the establishment of an interim government led by Mohammad Yunus signifies a constitutional rupture. This chapter would deal with the application of the “pure” theory given by Hans Kelsen and critically examine the scenario that prevailed in Bangladesh.”

3.1 BACKGROUND:

In“January 2024, Sheikh Hasina secured a contentious majority in the national elections, securing her a fourth term in the office of Prime Minister of the country. This election was however condemned by people all over the country, for its alleged contentious nature. There were numerous allegations of rigging, voter suppression, intimidation and fraud. The contentious nature of the allegations raised serious concerns about the future of democracy in the country, especially regarding the authoritarian rule in Bangladesh by Hasina. By mid-2024, the political turmoil in Bangladesh, coupled with significant economic challenges, worsened the situation in the country. In June 2024, a major policy decision regarding the reservation quota for recruitment in civil services in Bangladesh, that had been earlier struck down in 2018, following widespread protests.

The protest that initially started as a retaliation to the new quota system, grew in scope, demanding for the resignation of prime minister Sheikh Hasina. ”

3.2 RULE OF SHEIKH HASINA:

The “rule of Sheikh Hasina, that was in place for over 15 years, was marked by its increasing reliance on intimidation and co-optation. State institutions, nominally created to uphold constitutional rights, were too often converted into partisan tools, shielding wrongdoings and permitting the unchecked accumulation of wealth for the privileged actor12. Minority was continuously vulnerable to legal and extra-legal displacement, while the political activists risked enforced disappearances and extra-judicial killings at the hands”of the prevailing regime. “Legal redress remained elusive as because the judiciary and policing structures lacked both independence and accountability13.” 12 William Gomes, The 2024 Conjuncture in Bangladeshi Politics: Historic Uprising and Prospects for Democratic Transformation [Preprint] (2024)

13 Supra note 12.

Article 7 “of the constitution of Bangladesh, that provides for the supremacy of the constitution, can be considered as the Grundnorm of this country. It is through this norm that all other norms derive its authority from. Hence, as according to Kelsen, “the basic norm refers only to a constitution which is actually established by legislative act or custom and is effective”14. The constitution was however held to be followed superficially only and the fundamental rights of the citizens continued to be violated by force. Also, the fundamental principles of state policy, such as socialism and freedom form exploitation, democracy and human rights secularism and freedom of religion, were also not followed. This, signifies that the Grundnorm in place, though being the basic norm and was not followed to an extent.

Kelsen, in his book has specified that, “A constitution is ‘effective’ if the norms created in conformity with it are by and large applied and obeyed”15. In the case of Bangladesh, invalidating the constitution of the country as being the Grundnorm, would be an extreme statement to make as the constitution was by and large effective though it was being manipulated during the regime of Sheikh Hasina. Hence, to proceed with the study, the researcher would still consider the constitution of Bangladesh as the Grundnorm of the country. ”

3.3 REGIME CHANGE:

Following “the massive protests and upheaval by the citizens of Bangladesh, Sheikh Hasina resigned from the post of Prime Minister and fled the country on 5th August, 2024. The military that had earlier backed Hasina, brokered a deal that led to the formation of the interim government16. This led to a change in regime, that later came to be led and advised by Nobel laureate Mohammad Yunus. Though, the formation of the interim government carries significant symbolic weight, the members have a very limited organisational experience and thus can be prove to be problematic. Apart from the political side of the situation”, this series of “events, that led to the overthrowing of the previous regime and establishment of a new interim government, has posed constitutional challenges.

14 HANS KELSEN, supra note 4, at 210.

15 Id at 210.

16 Anchita Borthakur, Bangladesh in 2024: A Year of Political Turmoil and Transformation, Vivekananda International Foundation. Available at: https://www.vifindia.org/article/2025/january/06/Bangladesh-in-2024-A- Year-of-Political-Turmoil-and-Transformation (2025) (Accessed: 07 May 2025).

This form of transition of government is revolution by force. Though the resignation of Sheikh Hasina was according to the means prescribed in the constitution of the country, however, the establishment of interim government is not according to the constitution, or in this case, the Grundnorm of the country”. Unconstitutional formation of interim government The “formation of interim government under the aid and advise of Nobel laureate, Muhammad Yunus, signifies major violation of the norm in place. The constitution of Bangladesh does not provide for any provision regarding the formation of interim government. This has evolved over a period of time.

The concept of non-party caretaker government, which was passed through the 13th amendment in 1996 and was upheld by the Supreme Court17 in accordance with article 57(3) and 58(4) of the constitution of Bangladesh, was later removed or abolished through the 15th amendment to the constitution in the year 2011. This was done citing major flaws, including the politicization of the judiciary, which undermined the public confidence in the Supreme court18. The formation of the interim government under the guidance of Yunus and military support clearly violates certain provisions of the constitution, Grundnorm, in place, with 15th amendment being one of them. Bangladesh’s current interim government is thriving in a “constitutional emptiness”, where the actions of the interim government cannot be fully adhered to.

This absence of provision for the formation of interim government coupled with involvement of the military, raises significant questions about the adherence to democratic principles, the separation of powers and the preservation of civil rights19. The formation of the interim government violates the democratic principle that is part of the constitution of Bangladesh, as the process of choosing Muhammad Yunus as” the adviser for a government “that is backed by the military, clearly showcases the violation. Though, the constitution of Bangladesh does not provide for any particular provision that would provide for

17 Abdul Mannan Khan v Government of Bangladesh & others, 64 DLR (AD) 169

18 S. M. A Daud, Constitutional legitimacy of the interim government: Analysis on Bangladesh Perspective. International Journal of Law, Social Science, and Humanities

(IJLSH),

1(2), 59–64. https://doi.org/10.70193/ijlsh.v1i2.156.(2024)

19 Id.

the principle of separation of power, yet it can be observed as a crucial feature. The constitution provides for Articles 65 to 93 that provide for the powers of the legislature, Articles 48 to 55 that describes the powers of the executive, and Articles 94 to 116A that provides for the power of the judiciary in the country. Therefore, this formation of the interim government can be considered against the Grundnorm of the country. However, can this particular transition be justified as according to the constitution or the Grundnorm of the land? Is the Grundnorm really not followed or is the notion of what is actually a Grundnorm changed? The formation of interim government, though not in accordance with the constitutional provisions, can still be considered to be valid.

According to the preamble of the constitution of the country, the constitution derives its source of authority from the people of the country as mentioned, “We the people of Bangladesh”. Also, according to the Article 7 of the constitution that provides for the constitutional supremacy, ought to ensure that the principles of the constitution are followed. Therefore, this justifies the formation of the interim government that was after all brought for the welfare of the people and the re-establishment of the constitutional principles that was destroyed by the previous government. Also, according to Kelsen, since this new order is largely accepted and followed by the people of the country, this can also mean that the new legal order has given rise to a new Grundnorm of the land.

Therefore, here, though the legitimacy of the government can be questioned as according to the constitution of the country, Kelsen’s theory that mentions that principle of effectiveness overpowers the principle of legitimacy, cannot be overlooked. Also, as mentioned by Kelsen, throughout his work, asserts that the Grundnorm is not dependent upon the political reality but on the conceptual source of validity. Therefore, according to the facts, though there has not been any significant or major change in the Grundnorm, yet the above-mentioned changes cannot be ignored. New Grundnorm in the making? A pivotal constitutional development after the overthrowing of the regime led by Shekh Hasina

was the establishment of Constitutional Reformation Committee (CRC),”established by the interim“government under Muhammad Yunus. This aims to address the constitutional void

created by the resignation of Hasina. The CRC has recommended several reforms, such as restructuring the State Principles. The CRC aims to replace certain provisions of the Fundamental Principles of State Policy such as replacing the foundational principles of nationalism, secularism, and socialism with values such as equality, human dignity, social justice and pluralism. Democracy is the only principle that is retained from the constitution of 1972. The CRC has also recommended that there is an expansion of the scope of fundamental rights to include access to food, clothing, shelter education, internet, and the right to vote, thereby enhancing constitutional protection20. Also, a significant shift from the purely parliamentary system to a semi- parliamentary model is proposed. This would lead to a significant change in the Grundnorm of the country.

Hence, possibly resulting in a shift from authoritarian political order to a more democratic regime. This analysis, however, is open to criticism. In the further chapter, the “pure” theory given by Kelsen would be criticised by through the case study of Bangladesh, highlighting the uncertainties or challenges to the theory referred through the project. ”

IV. CRITICISMS

This project, so far, has dealt with the concept of Grundnorm, that was part of Kelsen’s “pure theory of law”. The concept of Grundnorm, however, still remains to be ambiguous and can be challenged on various grounds. This chapter of the project would seek to critically analyse the concept by applying it to the recent case of Bangladesh. According to Kelsen, Grundnorm is the basic norm from which all other norms derive their authority. Though in today’s context it can be somewhere attributed to the constitution of the country. However, this concept of Grundnorm is not something that is substantive but something that is abstract in nature. Derek van der Merwe says that it should be noted that the Grundnorm is not identical to the constitution as we assume it to be21. Therefore, assuming 20 Correspondent, Constitution reform: Sweeping changes in Constitution, The Daily Star.

Available at: https://www. thedailystar. net/news/bangladesh/politics/news/constitution-reform-sweeping-changes-constitution- 3800181? (2024) (Accessed: 08 May 2025). 21 NK Mkwentla, The Legal Effect Of A Coup d’ etat on Traditional Constitutional Concepts. Master Of Laws Of Rhodes University (2001)

Grundnorm to be the constitution would be an oversimplification of the concept. The concept of Grundnorm also fails to address certain ambiguities in the situation of Bangladesh. The Grundnorm of the land before the ousting of Sheikh Hasina could be assumed that “the constitution ought to be obeyed”. However, the basic norm was not followed in the country in the first place. The constitution was not followed. It is also to be observed that this was not only for a brief period of time but for as long as 15 years and more. The representatives of the elected government were majorly elected through unfair means. Also, continued violence on people violated certain human rights principles enshrined in the constitution. So, according to the case, could it be now said that the Grundnorm was not actually about the obedience of the constitution but something else?

This logic would also make the 15th amendment invalid. Through this particular logical analysis can we come at a conclusion that the revolution was in fact not really against the assumed Grundnorm, that the “constitution ought to be obeyed”, but in fact meant to reinstate this norm, as the revolution was meant to establish constitutionalism in the country. Therefore, this is one of the ambiguities that this concept of Grundnorm poses before the researcher. Another major flaw in his theory is the assumption of legitimacy of the Grundnorm and hence, the justification of the legal system. While in his book he mentions that all the norms of the legal system, derive its validity form a higher set of norms, and these norms from another set of higher norms, finally deriving the basic norm or the Grundnorm from which all other norms derive their authority.

However, this basic norm, he says, is assumed to be valid. Therefore, this circular form of reasoning can be held to be problematic. Robert Alexy in his book pointed out that the principle of Grundnorm can also validate unjust laws. He puts forward this idea that norms that are unjust in extreme cannot have the character of a legal norm22. Therefore, this particular concept of basic norm completely ignores the consideration of certain moral principles. Hence, this can prove to be harmful in certain situation. A classic example of a case where the principle of Grundnorm given by Kelsen was misused

22 ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE: A REPLY TO LEGAL POSITIVISM, 104 (1st

ed. 2002).

is the Pakistani case, State v Dosso23. In this case, Dosso, a member of the tribal community in Pakistan was arrested under the Frontier’s Crimes Regulation (FCR), which applied to the tribal areas. He challenged the validity of his detention under this law claiming that his fundamental rights under the constitution of Pakistan,1956, was violated by this arrest. Before, the court could decide on the matter, a military coup occurred and a new regime was adopted. Provisional Constitution Order was adopted to replace the 1956 constitution. The court recognised the new military order as the Grundnorm and held it valid as according to the Kelsen’s theory of pure law. This decision of the supreme court of Pakistan was criticised all over the world, for it justifying the establishment of military rule and legitimizing the martial law.

The citizens’ rights were compromised due to this particular judgement, therefore, encouraging unconstitutional and regime that lacked minimum morality. Another problem with Kelsen’s concept of Grundnorm is the aspect of revolution, that he talks about in his book. He mentions that if there occurs a successful revolution, and has been effective, that is, the norm is applied and obeyed, then, the principle of effectiveness overrides the principle of legitimacy. Here, in the case of Bangladesh revolution, the interim government, being the effective government in the scenario has given rise to a new Grundnorm. However, the above-mentioned concept, by Kelsen, is still ambiguous in the sense that the definite or minimum time period that the new regime is supposed to be obeyed and adhered to, by the people, to be declared as an effective regime is not clear enough. This may lead to ambiguity.

The scholars are still sceptical regarding the continuation of the effectiveness of the regime in the country, as at this stage, the country is still striving to find stability. Since, this regime is effective as of now, can be valid to conclude that the new Grundnorm has been formed. However, it can also be considered too soon to conclude it. The fact that it is difficult to come to a definite conclusion with the help of this theory, proves its ambiguous nature. The above-mentioned principle of effectiveness can also lead to legitimisation of authoritarian and violent take overs, in the country, therefore, undermining principles such as popular sovereignty, political equality, human rights and democratic legitimacy in the country.

23 State v Dosso, PLD 1958 SC (Pak) 533

Legal scholars also criticise the theory of Kelsen as it lacks political relevance in the modern constitutional countries. The “pure” theory of law as given by Kelsen cannot be applied in reallife cases of constitutional crises as this would compromise the idea of both political and popular morality, thus making this theory impractical.

V. CONCLUSION

Kelsen’s “pure” theory of law has been a landmark contribution to the field of jurisprudence. He prioritised legal certainty over any other moral principles. The concept of Grundnorm that he came up with, was a ground breaking phenomena in the field of legal positivism as well as the subject of Jurisprudence as a whole. The regime change that happened in Bangladesh in the year 2024 presents an interesting case regarding its study under the theory given by Hans Kelsen. By analysing the overthrow of the Sheikh Hasina government and the establishment of the new interim government, the study showcases how the concept of Grundnorm given by Kelsen can be used in order to understand the creation of new legal order through the criteria of principle of effectiveness.

While the transition lacked constitutional legitimacy, and was against the Grundnorm of the land, yet, due to the support it managed to gather showcases its effective control over the population hence, leading to the formation of the new Grundnorm. However, the study also analysed how this particular conclusion can be problematic too. According to Kelsen’s theory, a new Grundnorm can be formed if it is effective. However, is this may not be sufficient condition, after all. Also, the ambiguity that Kelsen leaves us with, regarding the fixed or adequate time frame that is required for the formation of new Grundnorm, is problematic in nature. Ultimately, this project underscores the tension between legality and legitimacy, which lies in the heart of every regime change across the world.

BIBLIOGRAPHY

BOOKS

HANS KELSEN, PURE THEORY OF LAW, (2nd ed. 2002) (1967). • SURI RATNAPALA, JURISPRUDENCE, (1st ed. 2009).

ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE: A REPLY TO LEGAL

POSITIVISM (1st ed. 2002).

WEB SOURCES

NK Mkwentla, The Legal Effect Of A Coup d’ etat on Traditional Constitutional Concepts. Master Of Laws Of Rhodes University (2001). • William Gomes, The 2024 Conjuncture in Bangladeshi Politics: Historic Uprising and Prospects for Democratic Transformation [Preprint] (2024). • Correspondent, Constitution reform: Sweeping changes in Constitution, The Daily Star. Available at: https://www. thedailystar. net/news/bangladesh/politics/news/constitutionreform-sweeping-changes-constitution-3800181? (2024). • Anchita Borthakur, Bangladesh in 2024: A Year of Political Turmoil and Transformation, Vivekananda International Foundation. Available at:https://www. vifindia. org/article/2025/january/06/Bangladesh-in-2024-A-Year-of- Political-Turmoil-and-Transformation (2025). • S. M. A Daud, Constitutional legitimacy of the interim government: Analysis on Bangladesh Perspective.

International Journal of Law, Social Science, and Humanities (IJLSH), 1(2), 59–64. https://doi. org/10. 70193/ijlsh. v1i2. 156. (2024).