Author: Fazila Nawaz
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ABSTRACT
In this research the comparison between Austin and Kelsen theory of law has being made precisely. After thoroughly, reading on this topic we conclude that legal theory of positivism by John Austin and pure theory of law both quest for the definition of law. They both have defined it with different prospective. Kelsen agrees Austin in almost all of the aspects that he has mentioned. However, his point diverges from Austin’s at his normative rules and the grundnorm concept. The topic is also discussed in the context of application of kelsen theory in Pakistan with reference to the leading case of Asma jilani v. Government of Punjab.
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INTRODUCTION[1]
The
theory of law has always attracted the attention of jurists. The attempt to
define the law has added significant theories to the jurisprudence. So far
almost every jurist has tried to answer the question what is law? Yet, an exact definition couldn’t be derived.
It is because every Jurist has tried to define it with a different angle.
Legal
theory of positivism by John Austin and pure theory of law also quest for the
definition of law. They both have
defined it with different prospective. Kelsen agrees Austin in almost all of
the aspects that he has mentioned. However, his point diverges from Austin’s at
his normative rules and the grundnorm concept. He agrees to Austin that the commands are made
by sovereign, however for Kelsen that sovereign is not a political or a divine
abstract body but those are the basic norms legal society.
In Pakistan we attach the grundnorm concept with the existence of objective resolution. In Asma Jilani v Government of Punjab case the court held that objective resolution and Quran are the grundnorm of the country and observed that grundnorm enshrines in its own doctrine. In our grundnorm the sovereignty over the entire universe belongs to Allah and the authority exercise by the people is prescribed by him. The Court called this immutable and unalterable norm which was clearly accepted in the objective resolution.
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BACKGROUND
Evolution
of Positivist theories by the noble jurists such as John Austin, Hens Kelson
and else have extended the approach of materialistic jurisprudence. They
carried the positive School of thought which helps to determine law as a closed
system of pure facts, excluding all the moral norms and values. Instead of
developing law with its abstract origin such as God, the Positive School backs
it as given matters that are created by the state. This school of thought
introduced a précised legal thinking method to understand the jurisprudence in
an ideal system. The purpose of which is to analyze the basic principles of
law. It has articulated the systematic exposition of the legal ideas to gain an
accurate and intimate thoughtfulness in the basic working concepts of all legal
reasoning. This school of thought emphasis legislative law as a command of
sovereign, upon this the whole concept of law is based.[2]
This School of thought is emerged and developed with two greatest theorists of all times, John Austin and Hens Kelsen. Though the path they leading on take both to the positive law, however their prospective of explaining the positive school differs. The main difference they stand on is the origin of law. Austin derives law from a sovereign authority whereas, Kelsen oppose the extent of sovereign as origin of law made by Austin. They have given renowned theories on this matter. The highlighted theory of John Austin is Imperative theory of law and of Hens Kelsen is Pure Theory of law.
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DISTINT LEGAL APPROACHES OF BOTH JURISTS
4.1
John
Austin[3]
John
Austin takes the credit of being the father of analytical school of thought by
formulating first systematic alternates to natural law theories and utilitarian
approaches to law. He is known for his work in theory of legal positivism. He
supports law to be studied ideally, excluding moral rules. His approach to
theory of law is known as legal positivism.
4.1.1
Austin’s Approach
to Theory of Law[4]
Austin
determines two kinds of authorities in the legal universe; Christian scriptures
authority and political superior authority. According to Austin the holy
scriptures are the main source of divine law and are set by the creator himself
for the human beings. These Holy Scriptures contain the moral values, yet
according to him there is an unrevealed part which he thinks comes from a
political superior. Austin named the laws made by the political superiors as
positive laws. According to him positive laws are exclusive concerned with the
jurisprudence and law of God is a primarily theology. He defined positive law
as rule that are stipulated for an intelligent being by another intelligent
being who has power over him. The positive law according to him is set by politically
superior men to those who are political inferior.
He
makes a further subdivision of positive laws based on hierarchy of political
power. Austin set laws directly conferred by a political superior or what he
examines to be given by a sovereign from which private citizens quest for their
legal rights. Then according to him there are other laws that are made by the
political subordinates, for instance judges, magistrates and else. Based on this he makes the classification of
laws as proper and improper laws. According to Austin norms that have been
authoritatively established by God or by Sovereign are proper laws. On the
other hand laws improperly are generally based on the opinion and not on
authority.
4.1.2
Austin’s
Positive Law
Austin
defines law “as a command of
sovereign backed by sanctions that are followed by the bulk of society.” Three
are basically three constituents of his definition of law.
·
Political sovereign,
who according to him is a determinate human superior who receives habitual
obedience from the bulk of a given society, he noted that for the existence of
law presence of sovereign is compulsory. He was of the notion that where there
is no sovereign there is no independent political society. Positive law
according to him is result of sovereign’s command.
·
Command according to Austin contains the law
that is given by a sovereign. The purpose of command is to guide either the
community or the individual. He state
command to be imperative that creates a duty and follows with sanctions. His
notion for command is that where there is a command there is duty.
·
Sanctions are the
consequences for the disobedience of law. The notion for which is there cannot
be a law without punishments.
4.1.3
Laws that are
not commanded
Austin
has classified three kinds of commonly termed laws that are not imperative. For
him these are not the proper laws but they are still justifiable to include
them in jurisprudence. In this category he included declaratory laws that do
not go to form new duties, yet clarify the existing laws. Secondly, he included
laws brought in order to repeal laws that impose new duties after going revive
to some former laws. Finally, he mentioned laws of imperfect obligations which
are the laws that do not have any sanctioned attached for their breach or
punishment.
4.1.4
Austin’s
difference between positive law and morality
For
Austin moral rules that resemble positive law founds positive morality. He
finds positive morality as co-existing with rules of positive law. For
instance, rape, killing someone, stealing, assaulting and else are wrong under
morality as well as law. Austin gives dominancy to the positive law when there
comes in conflict with the positive morality. He oblige sovereign to obey the
law, yet any legislation by the sovereign that comes in conflict with the
divine law will still be a law.
4.2
Hans Kelsen[5]
Hans
Kelson believed that law is a science which deals with not the actual events of
the world (as what is) but with the norms (that is what ought to be). Kelsen approach towards theory of law is
known as pure theory of law.
4.2.1
Kelsen approach
to theory of law
Keslen
believed that the theory of law must be free from interference of ethnics,
sociology or the other domains. He gave the approach to study law in pure
vacuum, defending this assertion he said “the science of law has been mixed
with the elements of psychology, sociology, ethics and political theory.” Kelson
tried to define law in its pure form by isolating other components and not
bothering about morality, political or ideological value judgments. He argues
that the source of law should be uniform. It needs to be one and basic. Thus,
he has eliminated all other factors that are influencing the definition of law.
Furthermore for him elements of sanctions lies on norms, not on the
psychological element.
4.2.2
Kelsen’s normative
process
In
his definition for law kelsen clearly wants to say that law depends on
condition and consequences in a process of normative ways. For him science of law is knowledge of
hierarchy of normative relation. Kelsen theory of law consists of norms that
are not derived from facts but only from other norms and the relationship between
these norms is one of imputation not causality.
For
Kelsen a dynamic system is that where fresh norms are being created on the authority
of original, basic or he gave a new term Ground norm. He defined this grundnorm
as a static system that holds the basic norms determining the content to those
drives from it in additional to conveying validity to them. Simply, the
grundnorm for kelsen is a presupposition and all the other norms get validity
from the grundnorm. The gundnorm is the basic norm of a state that is adopted
to govern the state affairs. It’s a document that imparts validity to the
constitution and all other norms derived from it.
4.2.3
Kelsen theory
and sanctions
Kelsen says that legal norms drive validity form the external source and which is backed by the force of state. Thus, his prescription of the sanction imparts significance to the norms. His notion for this states that law is the primary norm that is stipulated by the sanctions.
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COMPARING AUSTIN AND KELSEN THEORY OF LAW
5.1
Focal
point of Austin and Kelsen theory of law
Austin
theory of legal positivism gives focus to role of sovereign body in commands.
The main focus that he has made in his theory revolves around defining the
sovereign, role of sovereign and the command of sovereign that are followed by
the society. On the other hand, kelsen in his pure theory of law has focused on
creating an ideal system for the law to define it with its real essence. It
eliminates all the outer factors that influence the legal theory of law and
have tried to define law in that vacuum.
5.2
Difference
in defining the law
Austin defines
law as “command of sovereign backed by sanctions that are followed by the bulk
of society.” Whereas Kelsen believe that law is a science that deals with not
the actual events of the world but with the norms.
5.3
Sovereign
One
of the main constituents of Austin’s theory is the factor of sovereign. Kelsen
also supports that laws are derive from a common sovereign authority, yet he
diverges from the broader sphere of sovereign that Austin has mentioned. Kelsen
doesn’t supports Austin’s idea of sovereignty that includes God, political authorities
and subordinate political authorities, yet he asserts that sovereign in each
legal state is a basic norm, the grundnorm from which all other norms derive
their validity.
5.4
Command
Kelsen
didn’t defined law as a command as done by Austin. As according to him it
introduces a psychological element into the theory of law. However, he believes
law is a rule of conduct but the validity of which is derived with reference to
the grunnorm.
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KELSON THEORY IN LEGAL SYSTEM OF PAKISTAN
The
Kelsen theory in Pakistani society can be found with the Objective Resolution. Objective
Resolution is a significant document in the constitutional history of Pakistan.
It is based upon the basic principles of Islamic political system and Western
Democracy. It serves as a foundation stone for constitutional development in
Pakistan. Objective Resolution is made the preamble and a substantive part of
constitution of Pakistan.
6.1
Case:
Asima Jillani v. The Government of Punjab[6]
Facts
Miss
Asma Jilani filed an appeal in the Punjab Hight Court for the release of her
father Malik Ghulam Jilani, under Article 98 of the Constitution 1962. Mr.
Malik Ghulam Jilani was detend under Martial Law Regulation 1971. The High Court rejected the appeal holding
that it had no jurisdiction because c Jurisdiction of Courts Order barred the
courts from questioning the validity of any act under the Martial Law
Regulation 1978. Asma Jilani went to the
Supreme Court.
Decision
of the Court
High Court held that Pakistan is not invaded by any army with
General Agha Mohammd Yahya Khan, nor it is an alien territory that is occupied
by the army of Yahya Khan. Martial law cannot arise in this circumstance and
Pakistan had its own legal doctrine that is the Quran and the Objective
Resolution. The Supreme Court treated Objective Resolution as the grundnorm of
the country and observed that grundnorm enshrines in its own doctrine that the sovereignty over the entire universe
belongs to Allah and the authority exercise by the people is prescribed by him.
The Court called this immutable and unalterable norm which was clearly accepted
in the objective resolution.
Thus, Court declared that Martial law was never superior to the
constitution of Pakistan. Thereby, Yahya Khan was neither Victor, hence all of
his actions were declared to be illegal.
Effects
of the Case
With this judgment Yahya Khan lost his power and Bhutto came as
a chief Martial law Administrator and after that became the President. This judicial pronouncement compelled to Bhutto to remove
the Martial law.
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CONCLUSION
Austin’s and Kelsen theory of law commonly supports the positive
school of law. However, they diverge in the approaches to define the law with
its origin. For Austin that is sovereign body that derives law which he calls
the commands for the society, though for Kelsen the sovereign is the origin but
he doesn’t supports the extended sovereign idea of Austin. For Kelsen that are
the basic norms, the grund norms that are working as a sovereign body for
commands.
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