Is Kelsen's model of law as a hierarchical system of norms more efficient than Austin's

system?

Hans Kelsen and John Austin are two of the most influential legal theorists in history. Kelsen's
Pure Theory of Law is based on the idea that law is a hierarchical system of norms where each
norm derives its validity from the norm above it in this hierarchy¹. Austin's command theory of
law, on the other hand, is based on the idea that law is made up of commands issued by a
sovereign². In this essay, I will argue that Kelsen's model of law is more efficient than Austin's
model.

Kelsen's model of law is a hierarchical system of norms. According to Kelsen, the legal system is
like a pyramid, with a fundamental norm known as the Grundnorm, at its apex. This norm is the
foundational source of authority that validates all other norms in the legal system. Each
subsequent norm derives its validity from the norm above it and creates a structured hierarchy.
The basic norm is a presupposition of the legal order, and it cannot be justified on legal grounds.
Below the basic norm are the norms of the constitution, which are created by the constituent
assembly. The constitution establishes the basic structure of the legal system and powers
different branches of government. Each norm in the hierarchy is valid because it is derived from
the norm above it. For example, a law is valid because it is authorized by the constitution, and a
regulation is valid because it is authorized by a law. If a norm at any position of the hierarchy
conflicts with a norm above it, then the lower norm will be invalid.

On the other hand Austin's command theory of law is based on the idea that law is made up of
commands issued by a sovereign. A sovereign is an entity that is not bound by any legal
obligations. Austin argued that only a sovereign can create law, and that only subjects are bound
by law. Austin's theory does not adequately explain how international law can be valid, since
there is no sovereign in the international system. Another criticism is that Austin's theory does
not properly explain the role of judges in legal systems. Judges do not simply follow the
commands of the sovereign; they also interpret and apply the law. Moreover it reduces complex
legal system to a series of commands neglecting the norm, principles and legal traditions that
influences legal decisions.

Kelsen's model of law is more efficient than Austin's model of law for a number of reasons. First,
Kelsen's model provides a clearer and more rigorous framework for understanding and applying
legal norms. The hierarchical structure of Kelsen's model makes it clear which norms are valid
and which norms are not. This can help to reduce legal uncertainty and improve the efficiency of
the legal system.Second, Kelsen's model is more comprehensive than Austin's model. Kelsen's
model can be used to explain the validity of both domestic law and international law. Austin's
model, on the other hand, cannot adequately explain the validity of international law.Third,
Kelsen's model is more flexible than Austin's model. Kelsen's model can be adapted to different
types of legal systems, including democracies, autocracies, and international organizations.
Austin's model, on the other hand, is more rigid and is less well-suited to different types of legal
systems.

Conc
Kelsen's model provides a clearer and more accurate framework for understanding and applying
legal norms. It is also more comprehensive and flexible than Austin's model.Regarding all this
things I can say that Kelsen's model of law as a hierarchical system of norms is more efficient
than Austin's model of law.

References
* Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Berkeley: University of
California Press, 1967.
* Austin, John. The Province of Jurisprudence Determined. 4th ed. Edited by H. L. A. Hart.
London: Weidenfeld and Nicolson, 1954.
* Hart, H. L. A. The Concept of Law. 2nd ed. Oxford: Clarendon Press, 1994.