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Austin and Kelson
Austin and Kelson
ABSTRACT
This study focused on two important theories of jurisprudence that are of Austin and Kelsen.
John Austin was a nineteenth century British legal philosopher who gave alternate ideology
to both natural law and utilitarian approaches to law and formulated an imperative theory
of law. Hens Kelsen was a 20th century Austrian philosopher. He proposed a pure theory of
law free from political ideology and moralization. Both adopted analytical positive
approaches in compilation of their work. The main purpose of John Austin's work in the
philosophy of law is to describe the boundary around the subject of jurisprudence and to
define the appropriate matter which comes within the scope of jurisprudence. He defined
law as the command of a sovereign backed by sanction. Kelsen filled in the gaps left by
Austin’s theory and adopted a different approach. On the other hand, Kelsen maintained that
the theory of law must be free from ethics, politics, sociology and history. Therefore, he tried
to restore the purity of the law by isolating those components. He maintained that the law
consists of norms and norms cannot be derived from facts rather only from other norms of
higher level. Kelson’s theory had been practically applied in Pakistan while validating military
coups. A full stop was placed on application of jurisprudential theories by the Supreme Court
and eighteenth amendment restricted the judiciary as well that they cannot validate high
treason act by any explanation.
1
1. INTRODUCTION
passage of time many perspectives emerged with the effort of the jurists who tried to answer
philosophical questions relevant to law.1 Three perspectives which exist today are analytical,
sociological and theoretical. Analytical branch explains legal axioms by defining terms and
views the legal order as an internally consistent, logical system. Sociological perspective
tends to explore the actual effects of the law within society and seeks to explain the influence
of social phenomena on the aspects of law. Meanwhile, the theoretical branch evaluates and
Austin and Kelsen are two familiar names in jurisprudence who tried to define the law
positively. John Austin was a nineteenth century British legal philosopher who gave alternate
ideology to both natural law and utilitarian approaches to law and formulated an imperative
theory of law. Hens Kelsen was a 20th century Austrian philosopher. He proposed a pure
theory of law free from political ideology and moralization. Both adopted analytical positive
approaches in compilation of their work.3 Succeeding research work tends to explain the
legal theory of Austin and Kelsen. It will compare both the theories and tend to explain the
1
LEGAL INFORMATION INSTITUTE, Jurisprudence, https://www.law.cornell.edu/wex/jurisprudence.
2
ENCYCLOPAEDIA BRITANNICA, Jurisprudence, https://www.britannica.com/science/jurisprudence.
3
STANFORD ENCYCLOPEDIA OF PHILOSOPHY, The Pure Theory of Law (2016),
https://plato.stanford.edu/entries/lawphil-theory/.
2
2. AUSTIN’S IMPERATIVE THEORY OF LAW
John Austin is regarded as the father of positive jurisprudence. He is the founder of the
analytical school of thought. He was followed by Salmond, Kelsen and others: The main
purpose of John Austin work in the philosophy of law is to describe the boundary of subject
of jurisprudence and to define the appropriate matter which comes within the scope of
jurisprudence.4 Austin divided law into two types and distinguished laws which form the
Austin defined proper laws as commands. It includes Divine laws or the laws of God, which
are commands by God towards his human creatures. According to Austin, these are positive
laws. On violation of such laws humans have to face penalties or sanctions. Austin in general
terms explained law to be a rule laid down by an intelligent being for the guidance of an
intelligent under power of the former.5 Such laws are of following two types.
4
J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, 2 (1954).
5
Anthony Townsend Kronman, Hart, Austin, and the Concept of Legal Sanctions, 84 The Yale Law
Journal, 584 (1975).
3
2.2. Law Improper So Called
According to Austin laws which are not commands and are not backed by sanctions are
inappropriate or improper so called laws. In such laws intelligence is missing leaving only a a
This theory is often known as command theory of law because the concept of command lies
at its core. It defines law as the command of the sovereign, backed by a threat of sanction in
the case of non-compliance. According to this Legality is determined by the source of a rule
not the merits of its substance like in natural theory of jurisprudence. The three major
● It is a type of command
● It is enforceable by sanction
A command is a duty over the subjects from the sovereign to perform a particular thing or
refrain from doing a particular thing. In case of non-compliance with command, a person who
is subject to that law has to face evil consequences in the form of sanction. Positive laws are
commands from the sovereign either directly or indirectly. Sovereigns are politically superior
6
SALMOND, SALMOND ON JURISPRUDENCE, 21 (2018).
4
personam or associations. The law, according to Austin, is Law only when it is effective and it
Hans Kelsen propounded the Pure Theory of Law. He claimed his theory to be applicable to
all places and all the times.8 According to Kelsen, the theory of law must be free from ethics,
politics, sociology and history. Therefore, he tried to restore the purity of the law by isolating
those components. He made norms the objects of the science of law which have the
character making certain acts legal or illegal. Norm is something that explains how a human
Kelsen described the theory of law involving the knowledge of hierarchy of normative
relation. He maintained that the law consists of norms and norms cannot be derived from
facts rather only from other norms. The relationship between norms is not of causality but
imputation.10 Kelsen explained the legal system to be of dynamic nature where fresh norms
are constantly being created on the authority of original Grund norms. The Grund norms are
a source of validation for other norms and by nature are presuppositions. Grund norms differ
7
Hemant, Austin’s Imperative Theory of Law, THE FACT FACTOR (2019),
https://thefactfactor.com/facts/law/legal_concepts/legal_terms/imperative-law.
8
Rakesh Kumar, Structural Analysis of the Indian Legal System through the Normative Theory, 41
Journal of the Indian Law Institute, 501 (1999).
9
EDGAR BODENHEIMER, JURISPRUDENCE, 101 (2004).
10
M.D.A. FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE, 272 (1994).
5
in every legal order but are must in all systems. The Grund norm is not the constitution but
the presupposition that this constitution ought to be obeyed. Kelsen identified distinction
between legal and other suppositions with the fact that the former is backed by the force of
the state in the form of sanctions (coercive force). He introduced a psychological element in
his theory by holding that laws are norms which people presume to follow.11
Kelsen established the supremacy of international law. He upheld that the International law
should be considered a juridical order. In order to answer the problem that international law
does not possess all characteristics of law like it lacks compulsion, he compared it to primitive
law. He said that in primitive times, law was in customary form without sanctions and so is
of his pure theory of law. Kelsen placed effectiveness to be a condition of validity for any
norm to exist. Effectiveness implies that a norm is applied by a legal organ and obeyed by
subjects. Validity of a norm depends on the fact that it is ought to be obeyed and applied. A
single norm and a legal order as a whole cannot be regarded as valid if they lack effectiveness.
11
PROF. S.N. DHAYANI, JURISPRUDENCE AND INDIAN LEGAL, 58 (2002).
12
Sk Jahangir Ali, An Analysis of the Kelsen’s theory of law, http://ssrn.com/abstract=2208176.
6
A legal order loses validity when it completely lacks effectiveness not only its single norm.
Although both of these concerned theories belong to legal positivism but still we can see they
differ at many points. For the sake of cross comparison of Kelsen theory of law with Austin
theory of law, we will focus on the following points where both theories of jurisprudence
Austin in its imperative theory of law defined law as a command of sovereign punishable if
disobeyed. He ignored the normative essence of legal principles and rules. On the other
hand, Kelsen rejected the idea of command of the sovereign and introduced a psychological
element into the theory of law which he regarded as pure. He asserted that de-psychologized
command which does not imply a ‘will’ in a psychological sense of the term. According to him
a rule is an expression that somebody ought to act in a certain way without being really
concerned of who really wants him to do so. Austin’s ideas are more subjective and
introduced a political element in the concept of law and defines law in terms of its source i.e
leader a sovereign. Kelsen negated the idea and expressed that jurisprudence has to do
13
Rakesh Kumar, Structural Analysis of the Indian Legal System through the Normative Theory, 41
Journal of the Indian Law Institute, 502-503 (1999).
7
nothing with the source of law, it does not matter if it is from sovereign or custom or any
other source.14
4.2. Sanctions
Both Kelsen and Austin considered coercion as an essential feature of law. The conflict is a
point of motivation by fear which is upheld by Austin and rejected by Kelsen. Austin placed
sanction outside law but source of its validity. On the other hand, Kelsen maintained that
sanction itself is the operation of rules of law. Where one rule prohibits theft and multiple
other rules provide for sanctions and procedure so as per Kelsen a distinction cannot be
established between law and sanction. Kelsen only expressed one distinction that law laws
at lower level possess the attribute of sanction but not in laws at higher level.
Austin in its theory did not explain the dynamic process of law that exists throughout the
hierarchy of norms flowing from the Constitution whether codified or not. While Kelsen
explained at each level of the hierarchy the content of norms may be developed on the basis
Austin framed dualism between the sovereign state and the legal order in which he placed
law subordinate to the sovereign. He upheld that the law emanates from the sovereign
14
FRIEDMANN, LEGAL THEORY, 102 (1944).
8
therefore, it cannot control the sovereign. But Kelsen described state as merely the
personified expression of the legal order which is governed by law. He defined State as a
package of norms ordering compulsion and thus coextensive with the law. Austin theory
found it difficult to treat Constitutional law which binds the State being law of strictu sensu
nature while the Kelsen theory gives a clear reply. Where Austin says law as a creature of
State creates, Kelsen maintained that law regulates its own creation.
Austin theory does not confer character of law to customary practices unless they are
approved by the sovereign. On the other hand, Kelsen identified custom within his concept
of law. This is because he upheld that popular practice may generate legal norms which are
law.
Austin theory of law placed a distinction between public law and private law. Rights and
duties of the sovereign or State are dealt by public law while rights and duties of private
persons are treated by private law. Kelsen theory does not recognize this distinction; both
are concretizations of the grund norms. Administrative acts of the State also have the status
of laws because these actions are concretization of some law ordained for some factual
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situations. Unlike Austin, Kelsen does not hold any distinction between judicial and
administrative acts.15
International law, according to Austin, comes under the ambit of positive morality rather
than the universally accepted usage of modern states and legal experts. Simultaneously,
Kelsen demonstrated that state laws can be in alignment with international order of norms
so as to form one unified system. Austin did not give international law status of law strictu
sensu because he considered the sovereign cannot be bound by law which is his creation.
Kelsen regarded international law superior to the legal order of the State so its norms are
Kelsen theory in Pakistan practically got applied during experiences of several military coups.
The Pakistani judiciary remained inconsistent with its position regarding the validity of such
military coups and in times shifted from safeguarding the fundamental principles of the
15
Kelsen, The Pure Theory of Law, 51 L. Q. Rev. 517, 533 (1935).
16
ARTICLE1000.COM, Distinction between Kelsen and Austin, https://article1000.com/distinction-
kelsen-austin/.
10
5.1. State v. Dosso
First incidence of the judiciary validating a military coup of General Ayub in 1958 in the case
of State v. Dosso. President Iskander Mirza abrogated the constitution and announced a coup
administered by General Ayub Khan. Iskandar Mirza issued a Laws (Continuance in Force)
Order (LCFO)17 to govern the country under a coup. This implied previous law was still valid
as this order was declared before the enforcement of the coup. In light of Kelsen’s theory
Chief Justice Munir declared that a successful revolution had come into being with the
issuance of LCFO (new legal order). The basis of decision was that the President's actions
constituted an abrupt political change not within the contemplation of the Constitution and
thus are revolutionary in nature. Revolution was effective in the sense that the persons
assuming power under the change required the inhabitants of the country to conform to the
Another landmark Supreme Court’s Judgment was pronounced in the Asma Jillani’s case
during the military take-over of 1971. Miss Asma Jilani filed a petition against the military
rulers for the release of her father Article 98 of the Constitution of Pakistan 1962. Malik
Ghulam Jilani had been detained under the Martial Law Regulation No.78 of 1971. Martial
Law Regulation was under question if it can supersede the 1962 Constitution in presence of
17
President’s order no. 1 of 1958 (hereafter LCFO) Gazette Extraordinary (10 Oct. 1958).
18
The State v. Dosso and others (1958) PLD SC 533 (Pak.).
11
the precedent laid down in Dosso’s case. The Supreme Court departed from the basic
principles laid down by the Dosso case and upheld that the court was under no obligation to
follow Kelsen theory. Even after stating that the court was free not to follow Kelsen, the court
moved on stating the Objectives Resolution as the Grund norm of Pakistan, which makes
Allah the sovereign and empower people to choose their ruler within the boundaries defined
by Allah. This was actually another but a more correct interpretation of Kelsen’s theory
because Kelsen upheld that command even if backed by sanctions can only find its validity
through the Grund norm. This judgment declared the Chief Martial Law Administrator to be
bound by Grund norms in order to claim his action valid in Kelsenian terms. This case proved
Dring Zia Ul Haq’s coup where Zia Ul Haq abrogated the Constitution and declared himself
Chief Martial Law Administrator in 1977, Nusrat Bhutto filed a petition against it. The petition
was supported by precedent in Asma Jillani’s case. Nusrat Bhutto claimed Zia to have no
lawful authority to impose Martial Law under Articles 244 and 245 of the 1973 Constitution
and his act fell under high treason under Article 6 of the Constitution. The judgment followed
Dosso case and held that a new Grund norm was established through an unconstitutional
19
Asma Jilani v. Government of Punjab (1972) PLD SC 139.
12
revolution as per Kelsen’s theory and the situation fulfills the merits of Doctrine of Necessity
Last coup in Pakistan was by General Pervez Musharraf in 1999. Musharraf’s actions were
challenged in the case of Syed Zafar Ali Shah v General Pervaiz Musharraf. The decision
upheld the interpretations of Kelsen theory laid by Dosso and Nusrat Bhutto’s case and
validated the coup. This judgment was challenged and the situation turned on the case of
Sindh High Court Bar Association v The Federation of Pakistan. The court held that all
measures taken by General Musharraf to be unconstitutional and void ab initio. It held that
the Constitution. Musharraf was awarded herein with the punishment of high treason, that
is death sentence.21
The Supreme judiciary as well as the eighteenth amendment put a full stop on the
usage of jurisprudential theories to justify military take-overs. Kelsen’s theory was thus
moved back to its legitimate place that is jurisprudential analysis whereas, fundamental legal
choices regarding the constitutional structure of Pakistan can only be made in the light of the
20
Begum Nusrat Bhutto v Chief of the Army Staff and Federation of Pakistan (1977) PLD 657 (Pak).
21
Sindh High Court Bar Association v. Federation of Pakistan (2009) PLD (SC).
22
Behwal Asad Rasul, An Analysis of the Supreme Court of Pakistan’s Application of Kelsen’s
Grundnorm Theory, 3 PCL Student Journal of Law, 41.
13
6. CONCLUSION
In a nutshell, it can be concluded that Austin’s imperative theory of law and Kelsen’s pure
theory of law, both have made a great contribution in jurisprudence by presenting the most
logical explanation of law. John Austin gave alternate ideology to both natural law and
utilitarian approaches to law while Kelsen formulated a theory of law free from political
their work. Austin defined law as the command of a sovereign backed by sanction while
Kelsen maintained that the law consists of norms and norms cannot be derived from facts
rather only from other norms of higher level. Kelson theory had been practically applied in
Pakistan while validating military coups. A full stop was placed on application of
jurisprudential theories by the Supreme Court and eighteenth amendment restricted the
judiciary as well that they cannot validate high treason act by any explanation.
14
BIBLIOGRAPHY
15
ENCYCLOPAEDIA BRITANNICA, Jurisprudence,
https://www.britannica.com/science/jurisprudence.
Hemant, Austin’s Imperative Theory of Law, THE FACT FACTOR (2019),
https://thefactfactor.com/facts/law/legal_concepts/legal_terms/imperative-law.
LEGAL INFORMATION INSTITUTE, Jurisprudence, https://www.law.cornell.edu/wex/jurisprudence.
Sk Jahangir Ali, An Analysis of the Kelsen’s theory of law, http://ssrn.com/abstract=2208176.
STANFORD ENCYCLOPEDIA OF PHILOSOPHY, The Pure Theory of Law (2016),
https://plato.stanford.edu/entries/lawphil-theory/.
16