While both John Austin and Hans Kelsen are foundational figures in legal positivism who sought to separate law from morality, they differed fundamentally in how they defined the source and structure of a legal system.
Core Theoretical Differences
1. Basis of Law:
- John Austin (Command Theory): Viewed law as a "command" issued by a sovereign and backed by a sanction (punishment). For Austin, law is a social fact based on the habit of obedience to a human superior.
- Hans Kelsen (Pure Theory): Viewed law as a system of norms rather than physical commands. He rejected Austin’s focus on the "will" of a sovereign, calling it a "psychological" element that had no place in a "pure" science of law.
- Austin: Sovereignty lies with a determinate human superior (like a monarch or parliament) who is not bound by any legal limits.
- Kelsen: The entire legal system rests on the Grundnorm (Basic Norm)—a foundational, presupposed rule that gives validity to all other norms. Validity comes from the law's hierarchy, not from a person's power.
3. Scope and "Purity":
- Austin: Focused on "positive law" but allowed for some social and political context in his analysis.
- Kelsen: Aimed for a "Pure Theory of Law" by stripping away all non-legal elements, including sociology, history, ethics, and politics.
- International Law:
- Austin: Dismissed international law as mere "positive morality" because it lacked a global sovereign with the power to command and punish.
- Kelsen: Accepted international law as "law," viewing it as a higher-level norm in a global legal hierarchy.
| Feature | John Austin | Hans Kelsen |
|---|---|---|
| Definition | Command of the Sovereign | Normative Science |
| Foundation | Habit of obedience to a person | The "Grundnorm" (Basic Norm) |
| Key Driver | Sanction (Coercion/Force) | Legal Validity (Normative Ought) |
| Psychology | Essential (will/command) | Excluded (as "impure") |
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