Austin versus Kelsen

Ask why a parking fine binds you. Austin's answer points to a person: the State, whose commands the bulk of people habitually obey, has ordered you to pay and can punish you. Kelsen's answer points to a ladder: the fine is valid because a municipal regulation authorises it, the regulation is valid because a statute authorises it, the statute because the Constitution authorises it, and the Constitution because we presuppose, as the starting point of all legal reasoning, that it ought to be obeyed. Both men agree that the fine is backed by coercion. They disagree about what makes it law. This note compares them; Kelsen's theory in full is in Note 12.

Figure: Austin's law resting on fact and force against Kelsen's hierarchy of norms from the presupposed Grundnorm down to individual judgments; Kelsen keeps the sanction as the mark of law but not as the ground of validity

1. Two Traditions

Austin (The Province of Jurisprudence Determined, 1832) was Bentham's disciple, and his theory is empirical: law is found by observing who commands and who obeys. Hans Kelsen (1881 to 1973) came from a quite different world. Trained in Vienna and shaped by neo-Kantian philosophy, he led the Vienna School of legal theory and played the leading part in drafting the Austrian Constitution of 1920. His main works are the Pure Theory of Law (Reine Rechtslehre, 1934; second edition 1960) and the General Theory of Law and State (1945), written after he moved to the United States. It is a common error to say that both belong to an analytical tradition descending from Bentham; Kelsen owes nothing to Bentham, and his method is transcendental, not empirical. What unites them is the positivist conclusion, not the philosophical route.

2. The Sanction: Shared, but Playing Different Roles

It is wrong to say that Kelsen banished the sanction. For Kelsen, law is a coercive order of human behaviour: what distinguishes a legal order from a moral or religious one is that it attaches coercive acts (punishment, civil execution) to certain conduct. His basic legal norm takes the form: if a person does X, an official ought to apply sanction S. This sanction-stipulating norm, addressed to officials, is what Kelsen calls the primary norm. The norm addressed to the citizen (do not steal) is only a secondary norm, derived from the primary one and, strictly, superfluous. So the sanction is essential to Kelsen's concept of law.

The difference lies elsewhere. For Austin, the sanction is part of what makes a command binding in fact: a duty exists because an evil is likely to be inflicted. For Kelsen, the sanction is the content of an ought, not a prediction. A norm is valid whether or not the thief is actually caught, because its validity comes from a higher norm, not from the probability of punishment. In one line: the sanction is essential to Kelsen's concept of law but is not the ground of validity.

3. Command against Norm

Austin's command is the expressed wish of a determinate person. Kelsen objected that this is a psychological fact, and an 'ought' can never be derived from an 'is'. A statute passed by a legislature is still binding years later, when no one who voted for it holds any 'wish' about it, and many legislators never read it at all. Kelsen therefore defined a norm as the meaning of an act of will directed at the behaviour of others: the act of will is a fact, but its meaning, once authorised by a higher norm, is an objectively valid ought. He himself described the legal norm as, in effect, a depersonalised command: it keeps the imperative form but no longer depends on anyone's continuing will.

4. Sovereign against Grundnorm, and the State

Austin's system rests on a person or body, the sovereign, who stands above the law: since he is the source of all legal limits, he cannot be legally limited. Kelsen removes the sovereign from the foundation. The State is not a power behind the law; it is the personification of the national legal order, so State and law are identical. Officials, legislatures and even heads of State act as 'organs' only because norms authorise them. At the top of the chain stands the Grundnorm (basic norm), which in paraphrase says: one ought to behave as the historically first constitution prescribes. It is presupposed, not posited by anyone, and it is not the Constitution itself. The Constitution is the highest posited norm; the Grundnorm is the assumption that makes the Constitution binding.

5. The Stufenbau and Efficacy

Kelsen's legal order is a Stufenbau, a hierarchy of norms: basic norm, constitution, statutes, regulations, and finally the individual norms of judgments and administrative orders. Moving down the ladder is a process of concretisation (individualisation): the general becomes specific. Every step both applies the higher norm and creates a lower one, so law-making and law-applying are relative, not opposite, activities. Austin had no such structure; for him every law is simply a command traced directly to the sovereign.

Both give weight to fact, but differently. For Austin, the fact of habitual obedience is the reason for law. For Kelsen, efficacy is a condition of validity, not its reason: a legal order as a whole must be by and large effective before its basic norm can be presupposed, and a single norm that is never applied may eventually lose validity, but a norm is valid because a higher norm authorises it, never simply because it is obeyed.

6. International Law

Austin classed international law as positive morality, since there is no sovereign above States to command and punish. Kelsen held it to be true law, though primitive law: like a pre-State society, it is decentralised, and its sanctions (reprisals and war) are applied by the injured State itself. He argued for monism, a single system embracing international and national law. Which of the two is supreme, he said, cannot be settled by legal science alone: either primacy can be constructed consistently, and the choice is a matter of political outlook, though Kelsen himself favoured the primacy of international law.

7. The Two Compared

8. Kelsen in the Courts: Revolutions

Kelsen's theory has a direct consequence for coups: if a revolution succeeds and the new order becomes by and large effective, a new basic norm is presupposed and the new order is valid. Austin would reach a similar result by another route (a new sovereign is now habitually obeyed). Courts in the Commonwealth tested the idea.

In India there has been no revolution, but the hierarchy maps easily onto the Indian order: Constitution, Acts of Parliament and the State Legislatures, rules and notifications, and judgments. Art. 13 voids any law inconsistent with Part III, a neat illustration of validity flowing downward from a higher norm. Indian writing sometimes loosely calls the Constitution the 'Grundnorm'; in Kelsen's strict sense that is wrong, because the Constitution is posited and the Grundnorm is presupposed.

9. Evaluation

Kelsen made positivism more rigorous. He explained what Austin could not: the persistence and impersonality of law, legal limits on State organs, and the layered structure of a modern constitutional order. Austin's strengths lie elsewhere: his theory is simple, connects law to the observable facts of power, and explains why people in fact comply.

Kelsen's critics make three points. First, the Grundnorm is empty: it adds nothing to the Constitution except the instruction to obey it. Second, it lets fact back in, because it is presupposed only for an order that is by and large effective, so validity finally depends on efficacy after all. Third, the coup cases show the danger of a theory that seems to hand legitimacy to whoever succeeds, which is why Asma Jilani insisted that Kelsen describes legal science and does not tell judges what to accept. Kelsen himself answered that the pure theory describes law and does not justify any regime. Hart later criticised both men for reducing law to sanctions (Note 63).

10. Frequently Asked Questions

Q. Did Kelsen reject the sanction?
A. No. For Kelsen law is a coercive order, and the sanction distinguishes law from morality; his primary norm directs an official to apply a sanction. What he rejected was the sanction (or obedience) as the ground of validity, which for him is always a higher norm.

Q. How does the Grundnorm differ from Austin's sovereign?
A. Austin's sovereign is a real person or body, identified by the fact of being habitually obeyed, and stands above the law. The Grundnorm is a presupposed norm, not a person or a fact, and it is the assumption that the first constitution ought to be obeyed.

Q. Why is Kelsen not in the Benthamite tradition?
A. Because his philosophy is Continental and neo-Kantian: he asks what legal thought must presuppose, not what can be observed about commands and habits. He shares Austin's positivist conclusions, not his utilitarian empiricism.

Q. What is the difference between efficacy and validity for Kelsen?
A. Validity means that a norm is binding because a higher norm authorised its creation. Efficacy means that norms are in fact obeyed or applied. A legal order must be by and large effective before its basic norm can be presupposed, so efficacy is a condition of validity, but it is never the reason a norm is valid.

See also: Note 11 (analytical school), Note 12 (Kelsen), Note 38 (sovereignty), Note 39 (State and law), Note 61 (Austin versus Hart), Note 63 (Hart versus Kelsen).