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

Austin's system?

Hans Kelsen and John Austin are two of the most influential legal theorists in
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. Austin's command theory of law, on the other hand, is based on the idea
that law is made up of commands issued by a sovereign to subjects².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 Grundnorm,
at its apex. This norm is the foundational source of authority that validates all other
norms in the legal system. Each subsequent norm derives its validity from the norm
above it and creates a structured hierarchy. The basic norm is a presupposition of
the legal order, and it cannot be justified on legal grounds. Below the basic norm
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 the hierarchy is valid because it is
derived from the norm above it. For example, a law is valid because it is authorised
by the constitution, and a regulation is valid because 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 made up of
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 that only
subjects are bound by law. Austin's theory does not adequately explain how
international law can be valid, since there is no sovereign in the international
system.³ Another criticism is 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, Suri Ratnapala
4.
Kelsen's model of law is more efficient than Austin's model of law for a number of
reasons. First, Kelsen's model provides a clearer and more rigorous framework for
understanding and applying legal norms. The hierarchical structure of Kelsen's
model makes it clear which norms are valid and which norms are not. This can help
to reduce legal uncertainty and improve the efficiency of the legal system.Second,
Kelsen's model is more comprehensive than Austin's model. Kelsen's model can be
used to explain the validity of both domestic law and international law. Austin's
model, on the other hand, cannot adequately explain the validity of international
law.Third, Kelsen's model is more flexible than Austin's model. Kelsen's model can
be adapted to different types of legal systems, including democracies, autocracies,
and international organizations. Austin's model, on the other hand, is more rigid
and is less well-suited to different types of legal systems.

Conc
Kelsen's model provides a clearer and more accurate framework for understanding
and applying legal norms. It is also more comprehensive and flexible than Austin's
model.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.

References
* Kelsen, Hans. Pure Theory of Law. Translated by Max Knight. Berkeley: University
of California Press, 1967.
* Austin, John. The Province of Jurisprudence Determined. 4th ed. Edited by H. L. A.
Hart. London: Weidenfeld and Nicolson, 1954.
* Hart, H. L. A. The Concept of Law. 2nd ed. Oxford: Clarendon Press, 1994.