John Austin and Hans Kelsen

The differences between John Austin and Hans Kelsen, two prominent legal theorists, center on their views of the nature and structure of law. Here are the key distinctions:

1. Nature of Law:

John Austin (1790–1859): Austin is known for his command theory of law. He argued that law is a set of commands issued by a sovereign, backed by the threat of sanction. In his view, law is a command from a political superior to a political inferior, and compliance is ensured through punishment. He focused on the idea that law is a system of rules derived from the will of the sovereign.
- Key Point: For Austin, law is primarily imperative—it is something imposed by authority and enforced through penalties.
Hans Kelsen (1881–1973): Kelsen developed the Pure Theory of Law. His approach was to separate law from morality, politics, or sociology, arguing that law should be studied as a normative science. He believed that law is a system of norms and focused on the structure and hierarchy of legal systems, culminating in the concept of the “Grundnorm” or basic norm, which serves as the ultimate source of legal validity.
- Key Point: For Kelsen, law is normative—it is a system of norms existing in a hierarchical structure, separate from political authority or moral considerations.

2. Concept of Sovereignty:

Austin: The sovereign is central to Austin’s theory. He believed that law is the command of the sovereign, and the power of law derives from the power of the sovereign to enforce it. Sovereignty, in his view, is indivisible and absolute.
- Key Point: Law is the command of the sovereign, and obedience to the sovereign is what makes something a law.
Kelsen: Kelsen rejects the traditional concept of sovereignty. He argues that the validity of legal norms does not depend on the will of a sovereign but rather on the position of a norm within a hierarchical legal system. The Grundnorm gives validity to all other legal norms, and law is a system of norms rather than commands.
- Key Point: Law’s validity comes from its position within a hierarchy of norms, not from a sovereign’s command.

3. Relation to Morality:

Austin: Austin made a distinction between law and morality, but he did not completely separate them. He acknowledged that legal systems often incorporate moral principles but maintained that the sovereign could also impose laws that are not morally just.
- Key Point: Law can overlap with morality, but its authority comes from the sovereign, not from moral principles.
Kelsen: Kelsen’s theory insists on a strict separation between law and morality. He argued that law should be studied scientifically, as a system of norms, and morality should be excluded from this analysis.
- Key Point: Law and morality are entirely separate domains in Kelsen’s theory.

4. Focus and Approach:

Austin: His approach is more empirical and focused on the practical aspects of law as it is enforced by the sovereign. His theory is rooted in legal positivism, meaning law is what is enacted by a legitimate authority, regardless of whether it is just or moral.
Kelsen: Kelsen’s theory is more abstract and theoretical. His focus is on the structure of law as a normative system, independent of enforcement, politics, or morality. His Pure Theory of Law aimed to create a science of law free from external influences like ethics or politics.

Summary of Key Differences:

Differences Between John Austin and Hans Kelsen

Aspect	John Austin	Hans Kelsen
Nature of Law	Law is a command backed by sanctions	Law is a system of norms with a hierarchical structure
Sovereignty	Sovereign is the source of law	Validity of law comes from the Grundnorm
Relation to Morality	Law can overlap with morality, but is not based on it	Law is separate from morality
Focus	Practical, command-based legal theory	Abstract, normative theory of law