A Kelsenian Perspective on Digital Governance and Human Rights Revisiting the Grundnorm in the Age of Algorithmic Rulemaking BISWARUP MUKHERJEE

Title of the Manuscript

“A Kelsenian Perspective on Digital Governance and Human Rights: Revisiting the Grundnorm in the Age of Algorithmic Rulemaking”

AUTHOR: BISWARUP MUKHERJEE

Designation: STUDENT

[ BALLB (H), 10^TH SEMESTER]

Institute/Affiliation: DEPARTMENT OF LAW,

UNIVERSITY OF NORTH BENGAL

Mobile No: 8240029970

E-mail Address: biswarupjee@gmail.com

ABSTRACT

The rise of digital governance which is marked by algorithmic decision-making, automated administrative processes and the increasing regulatory role of private technology platforms constitutes fundamental challenges to traditional legal theory and the protection of human rights. This paper examines these developments through the lens of Pure Theory of Law propounded by Prof. Hans Kelsen, with particular emphasis on the concept of the Grundnorm as the ultimate source of legal validity. It asserts that while Kelsen’s hierarchical model of norms presupposes a coherent and state-centric legal order, contemporary digital governance often operates through opaque, data-driven systems that may lack clear grounding in established legal authority. The paper explores whether algorithmic rulemaking can be accommodated within a Kelsenian framework or whether it signifies the emergence of a parallel normative order rooted in technical design rather than legal validity. In doing so, it discusses the tension between “rule of law” and the evolving “rule of code,” questioning the legitimacy of decisions that significantly impact individual rights without transparent legal justification. The study also analyses the implications of this shift for human rights, particularly in relation to due process, accountability, and non-discrimination. It says` that the absence of a clear normative foundation risks undermining the protection of fundamental rights. The paper concludes by advocating for a reconstruction of digital governance within a Kelsenian structure, ensuring that all algorithmic authority is traceable to constitutionally grounded norms. Such an approach, it argues, is essential to preserving the integrity of legal systems and safeguarding human rights in the digital age.

KEYWORDS:

Digital Governance, Kelsenian Jurisprudence, Grundnorm, Algorithmic Rulemaking