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KELSANIAN COUNTER TO AUSTIN’S THEORY OF LAW

Author: Pritam Pradhan, I year of LL.M. from National Law University Odisha (NLUO)


According to Austin’s theory of law[i], “Law is the command of the sovereign backed by sanctions”. Kelsan’s theory of law[ii] is a kind of negative response to the Austin’s theory of law and according to Kelsan, “Law is a set of norms”.Austin also gave the definition of sovereign which is, “if a determinate human superior receives habitual obedience from a bulk of society and that determinate human superior does not give habitual obedience to any other person then that determinate human superior is a sovereign”.


The first response would be the difference between the two terms “is” and “ought”. Austin’s definition of law involves the law being a “is-statement” but the definition given by Kelsen involves that the law being a set of norms ought to be followed because the law is valid by a superior norm (which is also valid by another superior norm and hence there is a chain of validity and hence the definition is an ought statement). The term “ought” is important because it shows why the law needs to be followed Austin did not give why the law is valid. I mean he gives that what a king or a sovereign says Is valid but in the term sovereign there is also problems which will be discussed later in this paper.


Let’s say there is a change in sovereign then what the previous sovereign’s command (which is law according to Austin) is that died with the previous sovereign and when the next sovereign comes then he makes new law. Command of a person arrives from wish or what a person wishes and we all know that dead persons cannot which means a dead person’s command is nothing at all. So the fault in Austin’s theory arrives when the theory in itself could not account for the continuity of laws. One argument in favour of Austin can be that the current sovereign’s command is same as the previous sovereign’s command but that argument is also faulty because the command is a kind of personal thing and if that is followed by someone then that itself does not make that the command of the other person. A command cannot continue to live after the dead of the person who gave the command. Also a sovereign is not a body and also the laws or the commands are not in the form of norms.But if we look at the theory of law by Kelsan we can see that due to the normative character of laws the continuity of laws is possible or we can say true. A law when made in the form of norm which derives validity from other superior norms and is passed by the legislature then the same continues to exist even after the death of the person who drafted the law. If we look at the concept of law given by HLA Hart[iii] we can see that it is quite similar to the concept of law by Kelsanbut Hart says that there are two types of law one is primary laws and the other is secondary laws. What I believe is that the concept of laws given by Austin is similar in some sense a part of primary laws concept given by HLA Hart. Austin is also at fault as he does not account for the secondary laws.


For the next argument we will use an example: Let’s say there is a Maoist leader “X” who have a certain number of persons from which he gets habitual obedience and also he is an outlaw so he also does not give any habitual obedience to anyone and if he comes to a person “A” and says that, “kill “B” or I will kill you”. Now according to Austin’s theory of law “X” is a sovereign because it satisfy the two condition that Austin specifies in his theory of law. Also if “A” does not kill “B” then there is sanction against “A” that he will be killed by “X”. Now if we analyse this situation we find that whatever “X” will say will be law according to Austin if the same is backed by any sanction. To even a layman this is wrong and is not acceptable. But if we look at the concept of law given by Kelsan then we find that this situation in turn will make “X” criminally liable if the laws of the hypothetical society is in parimateria with the Indian Laws.


Austin also kind of presumes that the people follow the laws only and only due to the fear of sanctions,but that itself cannot be always true because people might just follow a law because of the fact that other people follow the laws or because he respect the sovereign, the point being that the only reason to follow a law is not the fear of sanctions. If we look at Kelsan’s theory of law we can see that a law is followed because it is valid and its validity is derived from a superior norm. Also we don’t need to check on the rightness of laws that are valid according to Kelsan because that factor is not the reason to follow laws.


The concept of “grundnorm”

What Kelsan tells that to give validity of a norm there is a superior norm and then there is a more superior norm to give validity to the superior norm and the same continues but the thing is that have to end and the most superior norm is called the grundnorm from which validity of all the norms is derived. Now the question is that who gives validity to the grundnorm because at the end of the day it is also a norm which will not be valid if the validity of the grundnorm is not derived from some other superior norm (Now the problem is that there is no superior norm than the grundnorm). Hence a question arises in respect of validity of grundnorm.


Kelsan even gives an explanation to this and says that the grundnorm is to be presupposed to be valid so that all the laws derive their validity from the grundnorm. To understand it better take for example the meter, how much a meter is first defined and in London there is a meter scale which is the exact meter and from which every meter in the world derives its measurement. But a scale is made for the ease of the measurement and we cannot take this example to support the argument by Kelsan. According to Kelsan every norm is derived from a superior norm but the grundnorm needs to be presupposed valid that it is fault in Kelsan pure theory of law. Now if there is an exception to the grundnorm then why there are no exception to other norms why a custom cannot be presupposed valid because it is being affirmed by all the citizens of a nation. Also now a days there are complex legal systems it is also difficult to determine which the grundnorm is. Take for example in India we know that from the Constitution of India all the laws derived their validity but the Constitution of India also derives its validity from Indian Independence Act 1947 in some sense because if it was not based then Constitution of India would not have been valid. Now if we want to presume which law is the grundnorm do we just need to check for the first norm which gave validity to the chain of norms (this is what Kelsan says) or we need to take account for other factors (this what Kelsan does not say; also like in the case of India the norm from which all other norm derive their validity but the grundnorm needs to be one which the legislature of India passed after the Independence).


The position of International Law

Positive Laws

When Kelsan gave the pure theory of law, international law was not developed so much but the theory of Kelsan also cannot give explanation to the normativity of international law. First let’s talk about a monist state where the international law and the municipal law are having the same status. So if a monist state goes and signs a treaty with some other nation then it becomes law in the nation. A treaty is basically a contract between two nations, the same becomes a norm in the nation and the validity of the same is derived from the consent of nations affirming the treaty. Here the normativity is not from any superior norm and there are no set of norms which according to Kelsan must be there so as to make a law a law. International Law are soft laws which mostly are centred on principles of contract, humanitarian law and international customary laws (the point being there are no set of norms involved i.e. there is no world norm from which international laws are derived).


In a dualist state the municipal law is at a higher stage than that of the international law which means that if a state agrees to some international law through treaties or conventions then the same does not automatically become law in the state and the same needs to be ratified by a state’s legislature. Until and unless the state legislature passes a corresponding Act affirming the international law the same does not become law of the state. However when the state consents to some treaty or convention then the state cannot do anything against the consented treaty or convention. This shows that even though the treaty or convention have not became an affirmative law in the state but it became a restrictive law for the state to not do certain acts which in one sense is law. Now in this case also even though there is a need for a positive law to be passed by legislature which would become the law (as a set of norms as specified by Kelsan) of the state but for the restrictive nature of treaties there is no set of principles and it follows the same case as that of a monistic state. Hence in a dualist state also Kelsan’s pure theory of law fails.


Customary Laws

To differentiate practice from law (in the case of customs) there are two necessary ingredients the first one being state practice and the second is opiniojuris. Now state practice as the name suggests what the state does in fact and what a state follows or what a state practice commonly. Now to differentiate practice from a law we need opiniojuris which means what the state practice is practised with the belief that the same is a legal obligation. For an international customary law these two ingredients must be fulfilled at international level so as to make a practice a customary law. Kelsan’s theory of law fails to provide an explanation to the international customary laws. It is because for the validity of custom is derived from state practice and opiniojuris and not from a superior norm. Also a nation is not needed to legislate a new Act so as to follow an international customary law.

[i]John Austin, The Province of Jurisprudence Determined 1-2 (1832). https://archive.org/details/in.ernet.dli.2015.218171/page/n13/mode/2up [ii]Hans Kelsen, What is the Pure Theory of Law, 34 Tul. L. Rev. 269, 271 (1959-1960). https://heinonline.org/HOL/Page?handle=hein.journals/cathl26&div=17&g_sent=1&casa_token=&collection=journals [iii]H.L.A. Hart, The Concept Of Law 1-3 (2nd ed. 1994). http://fs2.american.edu/dfagel/www/Class%20Readings/Hart/Concept%20of%20LAW_Chapters%201_2.pdf