Is Kelsen's model of law as a hierarchical system of norms more

efficient than Austin's system?

Does law only come from the commands of the sovereign? Hans Kelsen and John Austin
are two of the most influential legal theorists in legal history. Kelsen's Pure Theory of
Law is based on the idea that law is a hierarchical system of norms where each norm
derives its validity from the norm above it in the hierarchy¹. One the other hand Austin's
command theory of law is based on the idea that law is made of commands issued by a
sovereign².In this essay, I will argue that Kelsen's model of law is more efficient than
Austin's model.

Kelsen's model of law is a hierarchical system of norms. According to Kelsen, the legal
system is like a pyramid with a fundamental norm known as the Grundnorm³on it’s top.
This norm is the main source of authority that validates other norms in the legal system.
Each posterior norm derives its validity from the norm above it and creates a hierarchical
structure. Below the basic norm there are the norms of the constitution which are created
by the constituent assembly. The constitution establishes the basic structure of the legal
system and powers the different branches of government. Each norm in this hierarchy is
valid because it is derived from the upper norm. For example, a law is valid because it is
authorised by the constitution and a regulation becomes valid when it is authorised by a
law. If a norm at any level of the hierarchy conflicts with a norm above it, then the lower
norm will be invalid.

Austin's command theory of law is based on the fact that law is the command issued by a
sovereign.⁵ A sovereign is an entity that is not bound by any legal obligations. Austin
argued that only a sovereign can create law and the subjects are bound by the law.
Austin's theory does not adequately explain how international law can be valid as there is
no sovereign in the international system.⁴ There is another criticism that Austin's theory
does not properly explain the role of judges in legal systems. Judges do not simply follow
the commands of the sovereign; they also interpret and apply the law.

Kelsen's model of law is more efficient than Austin's model of law for some reasons.
Firstly, Kelsen's model provides a clear and more accurate framework for understanding
and applying legal norms than Austin’s so called command theory. The hierarchical
structure of Kelsen's model makes it easy to distinguish between valid and invalid norms.
This helps to reduce legal uncertainty and improve the efficiency of the legal system.
Secondly, Kelsen's model is more comprehensive than that of Austin's model. Kelsen's
model can be used to explain the validity of both domestic law and international law. On
the other hand Austin's model dosen’t properly explain the validity of international law.
Thirdly, Kelsen's model is more flexible than Austin's model as it can be adapted to
different types of legal systems including democracies, autocracies, and international
organizations which is almost not possible through Austin's model. Moreover it is more
rigid and is less well-suited to different types of legal systems than that of Kelsen’s
model of law.

Hans Kelsen's pure theory of law has a significant impact on the field of jurisprudence.
The hierarchical approach having the fundamental norm on the top or the Grundnorm,
allows us to understand more complex law beyond the simple commands by some
sovereign. It’s logical and scientific approach to the structural underpinnings of the legal
system and the separation of morality from law provides valuable tools to understand the
definition and description of what law is.Regarding all this things I can say that Kelsen's
model of law as a hierarchical system of norms is more efficient than Austin's model of
law.

1. The Pure Theory of Law

2. The Province of Jurisprudence Determined
3. Jurisprudence and Legal Theory, 473.
4. Jurisprudence, Suri Ratnapala
5. Jurisprude ftnce and Legal Theory, 27.