THE GRUNDNORM AND THE CONSTITUTION: IS THERE A NIGERIAN CONCEPT OF THE GRUNDNORM?

Abstract

Traditional constitutional theory holds that the constitution is the foundational law of every legal system, the ultimate source of legality of all other laws, institution, offices and actions in every state. When Hans Kelsen propounded his pure theory of law, he was not unmindful of this basic constitutional creed, and neither did he dispute it. He however posited that every legal system consists of a hierarchy of norms at the apex of which is the grundnorm. Over the years, legal scholars had commented on Kelsen’s theory of the grundnorm. These comments had been influenced by the respective commentator’s understanding of Kelsen’s postulation. Particularly in the Nigerian firmament, various eminent jurists and academics had made various divergent comments on the signification of the grundnorm, even though each claimed to be applying Kelsen’s theory. Similarly, judges at the top echelon of Nigeria’s judicial architecture had presumed to pronounce ‘authoritatively’ on the concept of the grundnorm. Quite worrisome is the fact that these pronouncements do not tally with Kelsen’s enunciation of the concept of the grundnorm. This paper therefore proceeded to examine various divergent views in juxtaposition with Kelsen’s original theory. In the course of this work, it became glaring to the writers that misconceptions of this theory appears to be prevalent in Nigeria unlike with authorities from outside our shores, thus leading one to wonder whether Nigerians had, consciously or unconsciously embarked on a re-formulation of Kelsen’s theory or otherwise adopted a peculiarly Nigerian concept of the grundnorm? Ultimately, the paper canvasses the view that the only correct signification of the concept of the grundnorm is that assigned to it by Hans Kelsen, the originator of the concept.