In my opinion, both Kelsen’s and Austin’s theories have certain drawbacks. Although both theorists have taken a scientific approach of law to get universal application yet, there exists a vast difference in the path taken by them.
Under Austin’s theory, the sovereign was the political superior as well as the primary source of law. Even the judges and the private parties derived their power from the sovereign itself. On the contrary, Kelsen’s theory is inspired by Transcendental Idealism. His theory considers norms to be the basic unit of law and not the sovereign.
Unlike Austin, these set of norms constitute a legal ought, it is a prescription of conduct or behavior in the legal sense. Moreover, there exists a logical consistency in his theory. He introduces a hierarchy of norms, the validity of which can be traced back to the basic norm or the Grundnorm, a presupposed norm.
Furthermore, Kelsen did not disregard Constitutional Law as a law, unlike Austin who considered it as Positive Morality. Kelsen’s pure theory isn’t based on limitless powers of the sovereign therefore, if the limitations come from the norm, it must be applied as a part of law. His theory could incorporate the constitution as the Grundnorm of the state, which could be the touchstone to validate the hierarchy of norms (legislations).
Austin disregards International Law as a part of law whereas, Kelsen considers it to be superior to National law because of its universal application. Moreover, according to him, International Law does have a logical hierarchy of norms with Customary law being the Grundnorm. This norm validates and decides how international treaties are concluded, ratified etc.
Austin gives power to judiciary as a source of positive law however, this power is derived from the sovereign itself. On the other hand, Kelsen’s theory sees the Judiciary as the source of law as norms are also delivered by the court, the hierarchy gives the judges this authority. Judges play a role in justifying new norms too.
It is seen as Kelsen’s theory is an improvement to Austin Imperative theory through redefinition and development. Therefore, it can be safely concluded that Kelsen’s theory has applicability in the contemporary democratic world while, Austin’s is more inclined towards having a hierarchy which cannot be played out in democratic states, only in Authoritarian ones. I feel because of the abovementioned reasons, Kelsen’s Pure Theory is superior to Austin’s Command Theory.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
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