AUSTIN AND KELSEN COMPARED

FINAL DRAFT SUBMITTED IN PARTIAL FULFILMENT OF THE COURSE

TITLED PUBLIC JURISPRUDENCE-I FOR OBTAINING THE DEGREE
B.A.,LL.B(HONS.) DURING THE ACADEMIC YEAR 2020-21.

PROJECT SUBMITTED BY:

SANKET KUMAR

B.A LL.B (Hons.)

Roll No. 191759

SUBMITTED TO:

PROF. DR. MANORANJAN KUMAR (Assistant Professor of Law)

Faculty – Jurisprudence I

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

 DECLARATION BY CANDIDATE

I, Sanket Kumar, student of Chanakya National Law University hereby declare that the work
reported in the B.A., LL.B (Hons.) project report entitled: Austin And Kelsen Compared
submitted at Chanakya National Law University, Patna is an authentic record of my work
carried out under the supervision of Prof. Dr. Manoranjan Kumar. I have not submitted this
work elsewhere for any other degree or diploma. I am responsible for the contents of my
Project Report.

Signature of the candidate

Name-Sanket Kumar

Roll-191759

th
Course - B.A., LL. B Hons., 5 semester

Session-2018-2023
 ACKNOWLEDGEMENT

I would like to thank my faculty Prof. Dr. Manoranjan Kumar whose guidance helped me
a lot with structuring of my project. I take this opportunity to express my deep sense of
gratitude for his guidance and encouragement which sustained my efforts on all stages of this
project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

Thank You.

NAME: SANKET KUMAR

ROLL NO: 191759

COURSE: B.A., LL.B. (Hons.)

SEMESTER: 2020-2021 (5th)

SESSION: 2018-2023
 CONTENTS

1. AUSTIN’S THEORY OF LAW.........................................................................................5

CRITICAL ANALYSIS OF AUSTIN’S DEFINITION OF LAW...........................................5
INTERPRETING AUSTIN’S THOUGHT................................................................................8
CRITICISMS OF AUSTIN’S THEORY OF LAW.................................................................10
2. KELSEN’S THEORY OF LAW......................................................................................14
3. CONCLUSION.................................................................................................................18
BIBLIOGRAPHY....................................................................................................................22
 1. AUSTIN’S THEORY OF LAW

“Law is the command of the sovereign”

Austin defines law as the command of the sovereign. His theory of law is also known as the
imperative theory of law. According to Austin, positive law has three main features:-
(a) It is a type of command.
(b) It is laid down by a political sovereign.
(c) It is enforceable by a sanction.

CRITICAL ANALYSIS OF AUSTIN’S DEFINITION OF LAW

What is a command?

According to Austin, requests, wishes etc. are expressions of desire, while commands are
expressions of desire given by superiors to inferiors. The relationship of superior to inferior
consists for Austin in the power which the former enjoys over the other, i.e., his ability to
punish him for disobedience. In a sense, the idea of sanction is built into the Austinian notion
of command. Logically, it might be more correct to say that law has two rather than three
distinguishing features.

There are commands which are laws and there are commands which are not laws. Austin
distinguishes laws from other commands by their generality. Laws are not like the transitory
commands given on parade grounds and obeyed there and then by the troops. Laws are like
the standing orders of a military station which remain in force generally and continuously for
persons on the station. However, there can be exceptions. There can exist laws such as acts of
attainder which lack the characteristic of generality. Hence, generality alone is neither
necessary nor sufficient to serve as the distinguishing feature of law.

Some have criticised the positivist theory of law as a theory of “gun-man law” on the ground
that it makes no real distinction between a law and the command of a bank robber who points
his gun at the bank clerk and orders him to hand over the contents of the till. This criticism
overlooks Austin’s second requirement of law which requires that only that command is law
which is given by a political superior or sovereign. To Austin, a sovereign is any person or
body of persons whom the bulk of a political society habitually obeys and who does not
himself habitually obey some other person or persons. One difference between the order of a
gunman and the decree of a dictator is that the latter enjoys a general measure of obedience
while the former secures a much more limited compliance.

Who or what is the sovereign?

Austin formally defines the sovereign as a determinate or determinable person or group of

persons in an independent political society to whom the population as a whole has a habit of
obedience, but who has no habit of obedience to a political superior. Persons who comprise
the sovereign entity are not just the vague “them” of positive morality. It must be possible to
identify them as if by name, address and social security number. The reasons for this
requirement are not made clear.

The most serious problem with this definition is the combined complexity and vagueness of
the sovereign when so described. The sovereign in England has three constituent parts. The
first two are the monarch (whoever is upon the throne) and the members of the House of
Peers, all of whom are clearly determinate. The third part is not, as one might expect, the
House   of   Commons,   but   rather   the   electorate   who   voted   them   into   office   and   
who   are theoretically determinable. In the United States, the situation is less complex, but
the notion of the sovereign is equally amorphous. The sovereign is not Congress, the
President, nor any other officers of state; it is the electorate. This unwieldy and almost
unimaginable concept is made manageable by the notion of delegation. The electorates in the
United Kingdom and the US exercise their function directly only periodically, at elections.
Between elections they delegate their powers in the officials whom they have elected.

Another problem is that Austin, by making absence of a habit of obedience to a political

superior the defining characteristic of the sovereign, seems to suggest that the matter is one of
power and not of right. The sovereign is the unconditioned conditioner. This is not, of course,
what he wishes to say. He specifically states that might is only one condition of right,
although a very necessary one, since one cannot be a sovereign without the power to make
orders “stick”. But he is never very clear as to what the other conditions are.
The notion of an independent political society, which is closely related to that of sovereignty,
is couched in the same terms. It is a society whose sovereign person or persons do not have a
habit of obedience to a political superior. Thus, the viceroy of India, when that country was
under British rule, was not a sovereign even though his word was law, since he was subject to
the crown. 

The distinction between a political and a non-political society is not very clearly explained.
Austin says that there are several conditions, but the only one which he mentions is size; a
community must have substantial population to be considered a political society. He therefore
denies that the customs of a primitive tribe are laws. Customs only become laws when they
are officially stamped and approved by the sovereign, and the chief of a tribe is not a
sovereign – even though his every command is obeyed and the tribe is totally independent –
since a tribe is too small to be a political society. Loose confederations of small groups, as
when several tribes or small cities unite periodically for mutual defence or some other
purpose, may satisfy the numerical requirement on these occasions, but such combinations
are not considered to be independent political societies by Austin since they are not united
under one sovereign for a sufficient period of time.

Austin is, of course, unable to say how large a group must be to become such an independent
political society (i.e., How many stones make a heap?). He admits that quite small city-states
in ancient times were political societies, but he does not really make it clear why this is so.

3. What must be the sanction?

A sanction is an evil of some sort. According to Austin the degree of the sanction is not a
matter. However, mild the sanction is, if there is a sanction for the disobedience of the
command of the sovereign, then that command is law. This principal is to be applied to all
fields of law. Whether the law is civil or crime, disobedience of law must be met with
sanction.

According to Austin, law is law only if it is effective and it must be generally obeyed. Perfect
obedience is not necessary. Many contravene the law without depriving it of all effectiveness.
Without general obedience, the commands of the law-maker are as empty as a language
which is no longer spoken or a monetary currency which is no longer in use. They have the
appearance of law but not the reality of law. A Sovereign may enjoy obedience through
conquest, usurpation or elect ion. What is sufficient for a legal theorist is that such obedience
exists.

According to Austin, laws are of two kinds, viz., divine law and human law. Divine law was
given by God to men. Human laws are set by men for men. Human laws are of two kinds.
There are certain human laws which are set by political superiors and are called positive laws
and there are others which are not set by political superiors. To the second category belong
the rules of a club or any other voluntary association. Austin puts great emphasis on the
relation between law and sovereign. Law is law because it is made by the sovereign and
sovereign is sovereign because it makes the law. The relation between the sovereign and law
is the relation between the centre and the circumference.

INTERPRETING AUSTIN’S THOUGHT.

Even if we assume that Austin’s purpose was to create an empirical legal science by verbal
definitions, his work poses a number of interpretive problems. First, it is difficult to
determine whether the law, for Austin, is to be identified with what actually happens in fact,
or with what was supposed to happen according to the rules and regulations of the
jurisdiction. Hobbes, and the legal realists of the twentieth century, would say that the law is
what actually happens, and that anything else is just empty talk with no legal significance.
The mainline legal tradition, on the other hand, views law as prescriptive, in the sense that it
indicates what is supposed to happen if its rules are followed.

Austin appears to have had a foot in both camps, but his Hobbesian shoe is a very large one
and rather firmly planted.1 This may explain his rather odd and awkward representation of the
sovereign as a set of actual identifiable persons. For Hobbes, power must lie with and be
exercised by actual, not ideal or hypothetical persons, a view that is open to the criticism that
it does  not distinguish between  the   proper and  the corrupt administration of   the law.  A
realistic view of the outcome of a Chicago courtroom trial in the era of Al Capone might be
that the party supported by the mob will prevail in the court of a judge who is in Capone’s
pocket. But, as Roscoe Pound pointed out, this would not show the application of law but its
absence, as law has been replaced by a totally illegal system.

1
W. L. Morrison, John Austin 48(1982)
Most modern interpreters have taken the view that this is a serious problem for Austin and
have concluded that Austin reads best when his jurisprudence is taken to be a normative,
rather than a descriptive study, W.L. Morrison contends that the revisionists are mistaken and
Austin is right; the normative and descriptive elements in law can exist together in the
manner in which Austin portrays them. This question, so far as the present article is
concerned, is moot, since the problem is best taken care of in the light of modern
developments in formal studies, which will be considered later in this study.

The second difficulty is identifying and portraying Austin’s view of the relationship between
law and moral values. The matter appears to be clear, as he states unequivocally that the
existence of law is one thing, and that its goodness or badness is another, and he insists that
the business of the jurist is not to criticize or improve the law but to take it as it is. This
position is to be expected in one who was reorganizing law on the model of the physical
sciences, but it conflicts with the traditional view that an important part of the function of
lawyers is to make beneficial changes in the law. 

Austin is by no means saying that law should be static and unchanging or independent of
morality. He is saying, rather, in line with Bentham’s views, that law reform is not the
function of jural science, but is the business of ethics in general and the science of legislation
in particular. Unlike Bentham, however, Austin does not confine law-making to Parliament,
but allows for judicial legislation also. This means that the judge may wear two hats, one
representing the interpretative functions of the bench and the other its legislative activity.
This is awkward enough, but if we consider that the court may be accepting and endorsing
ideas argued by counsel and that many legal minds may lie behind counsel’s opinion, we are
left with the conclusion that everyone connected with law has both legal and legislative hats,
which must be taken off or put on during the course of legal business. In short his view of the
relationship of law to morals is not only subtle, but awkward. 
 CRITICISMS OF AUSTIN’S THEORY OF LAW

Austin’s theory of law has been criticised on many grounds:- 

i) Laws before State

The definition of law in terms of state has been criticised by jurists belonging to the historical
school and sociological schools. Critics belonging to the historical school concede that in
modern societies where there are established States, laws maybe in the nature of command,
but there existed laws even prior to the existence of the State. The law which existed prior to
the State was not the command of the sovereign. It had its source in custom, religion or
public opinion and not in any authority vested in a political superior. According to this
school, law is prior to and independent of political authority and enforcement. A State
enforces it because it is already law. It is not correct that it becomes law because the State
enforces it. 

Although Salmond is not a supporter of the imperative theory of law but he does not accept
the criticism of the historical school. He points out that the rules which were in existence
prior to the existence prior to the existence of a political State were not laws in the real sense
of the term. They resembled law. They were primitive substitutes for law but not laws.
Salmond considers it to be a virtue of the imperative theory of law that it excludes those rules
which resemble law but are not laws. Salmond supports his argument with an analogy. Apes
might have resembled human beings. They might be in existence prior to men, but it is not a
defect of a definition of man if it excludes apes from definition. As a matter of fact, it is a
merit of the definition.

Malinowski maintains that even in primitive society there are rules behind which the
community throws the whole weight of its organisation. The very structure of society is such
that primitive man suffers if the rules are disobeyed. Although there is no intricate system of
Courts or Police, the community directly entrusts itself in securing the observance of those
rules which it considers essential. If primitive man does not meet his customary obligations,
he knows that in future no one will help him. Apart from the community, primitive man is
helpless. The threat of expulsion or death is a salutary one for prospect offenders. Because in
so many cases the community leaves primitive man to enforce his own rights by self-help, we
must not leap to the conclusion that there is no rules the breach of which is regarded as fatal
to community life.

But according to me laws before State are in accordance which Austin’s theory as the fear of
not getting the support of others is form of sanction and the head of the primitive man’s herd
or group can be considered as a sovereign. Thus all the necessaries of law is met even in the
time of primitive men.

ii) Generality of law

According to Austin, law is a general rule of conduct, but that is not practicable in every
sphere of law. A law in the sense of the Act of the legislature may be particular in the fullest
sense of the word.  A divorce Act is law even if it does not apply to all persons. Law, in the
sense of the legal system, can be particular. The requirement that law should become general
is extremely difficult to maintain. There are degrees of generality. The question whether a
contract can be create law for the parties has peculiar urgency for the international lawyer. In
his view, treaties are a source of international law. They are so only if law need not be
general as normally treaties are binding only on those States which have ratified them. The
international lawyer who declares that a bilateral treaty makes law for the parties is implicitly
that law need not be general.

iii) Promulgation 

According to Austin, law is a command and that command has to be communicated to the
people by whom it is meant to be obeyed or followed. This view of Austin is not tenable.
Promulgation is usually resorted to but it is not essential for the validity of a rule of law. Upto
1870, laws in Japan were addressed only to the officials whose duty was to administer them
and might be read by no one else. The Chinese maxim “let the people abide by, but not
apprised of the law” lends further support to the argument.

iv) Law as command

According to Austin, law is a command of the sovereign but all laws cannot be expressed in
terms of a command. The greater part of a legal system consists of laws which neither
command nor forbid things to be done. They empower people by certain means to achieve
certain results, e.g., laws giving citizens the right to vote, laws conferring on leaseholders the
right to buy the reversion, laws concerning the sale of property and the making of wills. The
bulk of the law of Contract and of property consists of power-conferring rights. To regard a
law conferring a power on one person as in fact an indirect order to another is to distort its
nature. The term “command” suggests the existence of a personal commander. In modern
legal systems, it is impossible to identify any commander in this personal sense. This is
especially so where sovereignty is divided as in federal States. Commands conjure up the
picture of an order given by one particular commander on one particular occasion to one
particular   person.   Laws   differ   as   they   can   and   do   continue   in   existence   long   
after   the extinction of the actual law-giver. It might be contented that laws laid down by a
former sovereign remain law insofar as the present sovereign does not repeal them and allows
them to be in force. It cannot be said that what the sovereign permits, he impliedly or tacitly
commands. In  certain  States the  law-making  powers of  the  sovereign are  limited by  the
Constitution which prevents the repeal by ordinary legislation of “entrenched” clauses. In
such cases, no question arises of the present sovereign allowing or adopting such clauses. The
notion of an implied or tacit command is suspect. An implied command is no command.

v) Sanction 

Austin’s definition of law may be true of a monarchical police State, but it cannot be applied
to a modern democratic country whose machinery is employed for the service of the people.
The sanction behind law is not the force of the State but the willingness of the people to obey
the same. To define law in terms of sanction is like defining health in terms of hospital and
diseases. Force can be used only against a few rebels and not against the whole society. If law
is opposed by all the people, no force on earth can enforce the same Sanction is not an
essential element of law. If we apply this fact to every kid of law, we are able to arrive at
absurd conclusions. It is true that there is such a thing as sanction in case of criminal law but
no such sanction is to be found in case of civil law. If we accept Austin’s definition, the
whole of civil law will have exclude from the scope of positive law. 

vi) Not applicable to International Law.

Austin’s definition of law cannot be applied to international law. Although international law
is not the command of any sovereign, yet it is considered to be law by all concerned. The
view of Austin was that international law was positive morality and he described it as “law by
analogy”. Austin has been repudiated on this point.

vii) Disregard of ethical elements

Austin’s theory of law is defective in as much as it disregards that ethical element which is an
essential constituent of a complete conception. Austin’s theory is silent about the special
relation between law and justice. 

The main criticism of Salmond against Austin’s theory of law is that it disregards the moral
or ethical elements in law. The end of law is justice. Any definition of law without reference
to justice is inadequate. Law is not right alone, or might alone, but the perfect union of the
two. Law is justice speaking to men by the voice of the State. As Austin’s theory excludes the
ethical elements in law, it cannot be accepted as complete definition of law.

The view of Salmond is that Austin’s definition of law refers to “a law” and not “the law”.
The term “a law” is used in a concrete sense to denote statute, e.g., the law of contract etc.
However, the term ‘the law’ is used in an abstract sense to denote legal principles in general.
Austin’s definition refers to law only in the concrete sense and not in the abstract sense. A
good definition of law must deal with both aspects of the law.

viii) Purpose of law ignored

Austin’s theory of sovereignty ignores altogether the purpose of law and hence is one-sided
and incomplete. Paton writes that justice is the command of law and it is only fitting that an
instrument be defined by a delineation of the purpose which is its raison d’etre. The view of
Sir Henry Maine is that Austin's theory is founded on mere artifice of speech and it assumes
courts of justice to act in a way and from motives of which they are quite unconscious. The
purpose of law should be included in the definition of law.
 2. KELSEN’S THEORY OF LAW

It is said that Kelsen‟s contribution in the development of Analytical Positivism is a big zero
as he repeats the things of “Sovereignty” of John Austin and the “Rule of Recognization” of
Prof. Hart with the changing phraseology of Grund Norm of his own.

In the backdrop of above observation the researcher would like to highlight the contribution
of Kelsen’s Pure theory of law in the development of Analytical Positivism and its core
reality.

Before entering into Kelsen thesis on “Pure Law Theory”, the researcher would like to put the
differentiation between the natural law school and analytical positivism school.

The natural law school deals with the concept of law of nature. It is about the God made law.
It also says about the value, ethics, morality and supernatural aspect. It also deals with the
idea of reason. Basically natural law school indicates the “ought” proposition.

But the „analytical positivism school‟ does not concentrate about the “ought” proposition,
value judgement and theological affairs. The analytical positivism school takes the “is”
proposition and tries to establish the scientific temper in a logical manner. According to
Austin, “Law is command of Sovereign backed by sanction”. It is authority supportive that
sovereignty must be obeyed and must not be challenged.

Kelsen, an analytical jurist, in his “Pure Theory of Law says”, Law is the norm which
stipulates sanction. Kelsen’s “Pure Theory” is about the hierarchy of norms. He also says
about the normative behaviour which takes validity from the “Ground norm”. In his “Pure
Theory of Law” says Kelsen that law should be kept pure from extra-legal affair.

The objective and scope of the topic is very wide. A set of behavioural norm is in every
society. The normative behaviour control and regulate the human being. The pure theory is
free from any extra-legal element and the sanction is also under the scope of the norms.
CRITICAL ANALYSIS OF HIS “GROUND NORM AND HIERARCHY OF NORMS”
WITH REFERENCE TO HIS PURE THEORY OF LAW AND ITS CONTRIBUTION
TO THE ANALYTICAL POSITIVISM

Hans Kelsen, the jurist who belonged to the Vienna School, propounded the Pure Theory. He
claimed that his theory is applicable to all places and all the times. If it is observed minutely
really Kelsen theory must get the universal acceptance.

A theory of law must be free from ethics, politics, sociology, history etc; it must in other
words be “Pure”. “Uncritically” he said, “the science of law has been mixed with the
elements of psychological, sociology, ethics and political theory. He sought to restore the
purity of the law by isolating those components of the work of a lawyer or judge which may
be identified as strictly “legal.”

Kelsen actually wants to make the law pure and that is why he tried to cleanse of all that is
changeable and he is quite able to give this idea to search the justice. Kelsen does not bother
about the morality, political and ideological value judgement.

According to Kelsen’s Pure theory of law, the objects of the science of law are those norms
“which have the character of legal norm, which makes certain acts legal or illegal.” By the
term norm, Kelsen means that “something ought to be or ought to happen, especially that a
human being ought to behave in a certain way.” Finally laws being “ought” proposition,
knowledge of law means knowledge of “ought” i.e. norms and a norm is a proposition in
hypothetical form: “if X happen, then Y ought to be happen.”

It is very much clear that Kelsen wants to say that law is depend on condition and
consequence in a process of normative way. According to the above discussion it is found
that the element of sanction lies on the norms but not the psychological element. The legal
norms are the valid norm and it is quite pure from extra-legal elements.

(a) Hierarchy of normative relation

The science of law to Kelsen is the knowledge of hierarchy of normative relation. He builds
on Kant’s theory of knowledge and extends the theoretical knowledge to law also. For Kelsen
the law consists of norms: norms cannot be derived from facts, but only from other norms.
The relationship between norms is one of “imputation” not causality.
According to Kelsen, a dynamic system is one in which fresh norm are constantly being
created on the authority of original, or basic, norm, a Ground norm; a static system is one
which is at rest in that the basic norm determines the content of those drives from it in
additional to imparting validity to them.

The Ground norm is the presupposition and the other norms get validity from the Ground
norm. Every country has its own Ground norm from which the other norm is being
originated. The Ground norm is the basic norm.

Kelsen recognized that the Ground norm need not be the same in every legal order, but a
Ground norm of some kind there will always be, whether, eg a written constitution or the will
of a dictator. The Ground norm is not the constitution; it is simply the presupposition,
demanded by theory, that this constitution ought to be obeyed. Therefore, the Ground norm is
always adapted to the prevailing state of affair. The Ground norm only imparts validity to the
constitution and all other norm derived from it.

The fact that in great Britain the fountain of validity rests with statute, precedent and
immemorial customs does not contradict Kelsen’s thesis, for what he contended was that a
system cannot be found on conflicting Ground norms. In Britain there is no conflict between
the authority of the crown of the Parliament, judicial precedent and customs, they takes
precedence in that order.

Kelsen distinguishes the legal norm and normal norm. Legal norm derives it validity from the
external sources and the particular “ought” of the legal, as distinguish from the moral norm,
is the sanction.

Kelsen found the distinction between legal and other “ought” in that the former backed by the
force of the state, the preoccupation of law being with the prospect of disobedience rather
than obedience. Thus, it is prescription of sanction that imparts significance to a norm, or
putting it in another way, Law is the primary norm, which stipulates the sanction.

Only in this way does “law arrive at its essential function. It is true that in the statement,” if a
person does X, then Y ought to happen, there is implicit the idea that a person ought not to do
X if he wants to do avoid Y, i.e. not doing X is the effective means of avoiding Y. Yet the
law is only invoked when X has been done. In this way a legal norm prescribes conduct by
attaching sanction to contrary behaviour.
Kelsen although does not define law as a command. Kelsen is of the view that it introduce a
psychological element into the theory of law should be “Pure”. Yet law is a rule of conduct is
like Austin’s command whose validity is to be judge with reference to Grund norm. In this
sense Kelsen is a positivist or empiricist for as Austin law of command.

Kelsen also asserts the identity of state and law. As a political organization state is a legal
order and every state is governed by law. The expression “government of laws” is therefore
pleonasm to Kelsen.

Effectiveness and Validity

The discussion of effectiveness and validity will make the framework of the thesis advanced
by Kelsen complete. Kelsen’s effectiveness is Austin’s habitual obedience and something
more than norm application by legal organs. Minimum of effectiveness is condition of
validity for any norm to exist. Effectiveness means a norm is applied by legal organ and
obeyed by subjects. Validity means in addition to application and obedience, the norm ought
to be obeyed and applied.

A single norm and a legal order as a whole cannot be regarded as valid, when they cease to be
effective. Effectiveness is added to the fact of norm creation. A legal order does not lose
validity because a single norm losses effectiveness. Accordingly a norm, which is never
applied and obeyed, losses its validity.
 3. CONCLUSION

Kelsen has recognised the broad similarities between his pure theory and the imperative
theory of Austin but has equally emphasized the differences.

Norm and Command:

Austin, by saying that law is a command of sovereign punishable if disobeyed, ignores the
normative character of legal rules.  Kelsen does not regard law to be the command of the
sovereign.  First he rejected the idea of command, because it introduces psychological
element into a theory of law which should, in his view, be pure.  The most that he conceded
was that a law is a de-psychologised command, a command which does not imply a ‘will’ in
a psychological sense of the term….a rule expressing the fact that somebody ought to act in a
certain way, without implying that anybody really wants the person to act in that way. 
Austinian notion introduced a subjective, political element in the concept of law. 
Jurisprudence is not concerned according to Kelsen, with the source of law i.e., whether it has
emanated from a sovereign or custom or some other source.

Sanctions:

Kelsen agrees with Austin that coercion is one essential feature of law but he rejects Austin’s
supposed reliance on motivation by fear.  To Austin sanction was something outside a law
imparting validity to it.  To Kelsen such a statement is inadequate and confused.  Austin
would have said that the sanction behind the proposition ‘you ought not to steal’ is that if you
do steal, you will be imprisoned.  To Kelsen the operation of the sanction itself depends on
the operation of other rules of law.  One rule prescribes that if a man has committed theft, he
ought to be arrested; another prescribes that he ought to be brought to trial; others prescribe
how the trial ought to be conducted; another rule prescribes that if the jury brings into verdict
of guilty, the judge ought to pass sentence; and another prescribes that some official should
carry that sentence into execution.  In this way the contrast between law and sanction in
Austinian sense disappears.  According to Kelsen, in the hierarchy of laws it is only those at
the lower level (which are concrete) that possess the attribute of sanction, whereas those at
the higher level (which are abstract) do not possess this attribute.
Legal Dynamics:

Austin ignored the dynamic process of law creating which occurs throughout the hierarchy of
norms and which derives from the Constitution whether written or unwritten. Kelsen says, at
each level of the hierarchy the content of norms may be developed on the basis of higher
norms.  This is a thoroughly dynamic principle.

No dualism between State and Law:

 Austin creates a dualism between the sovereign (or state) and the legal order (of law).  To
Austin law is subordinate to the sovereign.  The law emanates from  the sovereign and so
cannot control the sovereign.  To Kelsen the state is merely the ‘personification’ of the legal
order.  As a political organization the state is a legal order, and every state is governed by
law.  The State is nothing but the sum total of norms ordering compulsion, and it is thus
coextensive with the law.  Kelsen identified State with law, as the State is nothing but a
system of human behaviour and social order, and every norm of social behaviour is law.  He
regarded law as imperative, and therefore the duties under law as absolute.  Rights are
concessions of law, and therefore no right is above law.  In other words, he could not
recognize fundamental rights or ‘inalienable human rights.’

According to Kelsen, there can be no distinction between law and state. Therefore, the
difficulty of treating Constitutional law, which purports to bind the State, as law strictu sensu
which confronted Austin does not arise for Kelsen. While Austin says that the State creates
the law, Kelsen would say that law regulates its own creation.

Customary Law:

Austin theory denies to custom the character of law as it has not been created by the
sovereign. Kelsen however, is able to accommodate custom within his concept of law for all
that is required to do so is an intermediate norm to the effect that popular practice may
generate legal norms.
No dichotomy between Private Law and Public Law:

Austinians draw a distinction between public law and private law.  Public law is supposed to
deal with the rightrs and duties of the sovereign or State while private law is supposed to deal
with the rights and duties of private persons.  To Kelsen this distinction is not meaningful. 
He denounced the distinction between private and public laws as both are concretisations of
the grund norm.  Law is a pyramid of norms, concerning relations of state with subjects,
relation of public authorities with subjects and ultimately relations between subjects
themselves. Each subsidiary norm is a concretisation of its superior norm.  Each norm
constitutes a rule of law.  In this analysis, Kelsen considered administrative acts of the State
also as laws because each such act is a concretization of some law.  Judicial decisions are
obviously laws because they are only laws to factual situations and therefore clear cases of
concretization of laws.  To Kelsen the distinction between judicial and administrative acts is
not real.

Nature of International Law:

Austin relegated international law to the realm of positive morality, contrary to the
universally accepted usage of modern states and lawyers.  Kelsen seeks to overcome this
difficulty by demonstrating that state laws can be dovetailed into the international order of
norms so as to form one monistic system.

Austin could not concede the status of law strictu sensu to International Law, because
sovereign is not bound by law which is only his creation.  Kelsen’s theory clears off this
difficulty.  The International organization is regarded by Kelsen as superior to the legal order
otherwise called the State so its norms are binding upon the state.  The denial of concept of
State sovereignty, has made this possible.  Kelsen tried to establish international law as the
real law of the states.  He argued that the very recognition of two states as equals in law
implied recognition of a higher authority which can bestow upon them the attribute of
equality, which authority he called as the international order.  To him war and reprisal are the
sanctions of international law.  But war is not as a sanction to enforce, but as a clear breach of
international law.
Kelsen was of the view that there is a legal heirarchy and international law is at its top. 
Hence a municipal law in conflict with a principle of international law will be invalid. 
Kelsen thus seeks to create a monistic world legal order.
 BIBLIOGRAPHY

1. V. D. Mahajan, Jurisprudence And Legal Theory

2. W. L. Morrison, John Austin 48(1982)