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 Grundnorm3
on 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 idea that law is the commands
issued by a sovereign. 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.
1. The Pure Theory of Law
2. The Province of Jurisprudence Determined
3. Jurisprudence and Legal Theory
4. Jurisprudence, Suri Ratnapala
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. 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.