Comparison between Austin and Kelson theory of Law: Practical

Application of Kelson theory in the Legal System of Pakistan

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.

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1. INTRODUCTION

Theory of law or jurisprudence is a philosophy and theoretical explanation of law. With

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

criticizes law in terms of the ideals or goals postulated for it.2

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

practical application of Kelsen theory of Law in Jurisdiction of Pakistan.

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/.

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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

appropriate matter of divine law, positive morality from metaphorical laws.

2.1. Law Proper So Called

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.

2.1.1. Law of God

These are commands by God towards his creation that is men.

2.1.2. Human Laws

Human laws are commands from human sovereigns for men.

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).

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 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

metaphorical sense of law. 6

2.3. Analysis of Imperative Theory of Law

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

features are as follows.

● It is a type of command

● It is laid down by a political sovereign

● 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).

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personam or associations. The law, according to Austin, is Law only when it is effective and it

is generally obeyed where general obedience implies efficiency.7

3. KELSON’S PURE THEORY OF LAW

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

being ought to behave. 9

3.1. Hierarchy of Normative Theory and Coercion

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).

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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

3.2. Kelson’s Theory and International Law

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

the present international law.12

3.3. Theory of Validity

Kelsen’s concept on effectiveness and validity is necessary to have complete understanding

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.

Electronic copy available at: https://ssrn.com/abstract=4774355

A legal order loses validity when it completely lacks effectiveness not only its single norm.

Norm which is not applied and obeyed has no validity.13

4. COMPARISON OF KELSEN’S AND AUSTIN’S THEORY OF LAW

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

gave their comment.

4.1. Norm and Command

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).

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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.

4.3. Legal Dynamics

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

of higher norms which is thoroughly a dynamic principle.

4.4. Dualism between State and Law

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).

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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.

4.5. Customary Law

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.

4.6. Distinction between Public Law and Private 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

4.7. Nature of International Law

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

binding for the state.16

5. APPLICATION OF KELSEN’S THEORY IN PAKISTAN

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

constitution by validating the military takeovers. Following happenings in Pakistan

demonstrated application of Kelsen theory of law.

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

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 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

new regime successfully.18

5.2. Asma Jillani’s Case

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

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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

to be a milestone judgment in Pakistan history as the Supreme Court evolved in its

understanding of the Grund norm doctrine.19

5.3. Nusrat Bhutto’s Cese

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

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revolution as per Kelsen’s theory and the situation fulfills the merits of Doctrine of Necessity

and hence validated the coup.20

5.4. Musharraf’s Military Take-Over

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

there were no such circumstances to warrant an emergency in the country as described in

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

will of the people of Pakistan through legitimate representatives.22

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

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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

ideology and moralization. Both adopted analytical positive approaches in compilation of

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

Electronic copy available at: https://ssrn.com/abstract=4774355

BIBLIOGRAPHY

Statute and Laws

President’s order no. 1 of 1958 (hereafter LCFO) Gazette Extraordinary (10 Oct. 1958).
Case Laws
Asma Jilani v. Government of Punjab (1972) PLD SC 139.
Begum Nusrat Bhutto v Chief of the Army Staff and Federation of Pakistan (1977) PLD 657
(Pak).
Sindh High Court Bar Association v. Federation of Pakistan (2009) PLD (SC).
The State v. Dosso and others (1958) PLD SC 533 (Pak.).
Books
EDGAR BODENHEIMER, JURISPRUDENCE, 101 (2004).
FRIEDMANN, LEGAL THEORY, 102 (1944).

J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED, 2 (1954).

M.D.A. FREEMAN, LLOYD’S INTRODUCTION TO JURISPRUDENCE, 272 (1994).

PROF. S.N. DHAYANI, JURISPRUDENCE AND INDIAN LEGAL, 58 (2002).
SALMOND, SALMOND ON JURISPRUDENCE, 21 (2018).
Journal Articles
Anthony Townsend Kronman, Hart, Austin, and the Concept of Legal Sanctions, 84 The Yale
Law Journal, 584 (1975).
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.
Kelsen, The Pure Theory of Law, 51 L. Q. Rev. 517, 533 (1935).
Rakesh Kumar, Structural Analysis of the Indian Legal System through the Normative
Theory, 41 Journal of the Indian Law Institute, 502-503 (1999).
Websites
ARTICLE1000.COM, Distinction between Kelsen and Austin,
https://article1000.com/distinction-kelsen-austin/.

15

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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

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