Hart vs. Austin

This post is a summary of Chp 2-4 of Hart’s Concept of Law. It will help answer a question that is often repeated in the examination questions on Hart’s critique of Austin. This kind of question is a Section A question.

In his preface, Hart asserts that the separation between coercion and law has to be maintained. Subsequently in chapters 2-4 of ‘The Concept of Law’, Hart deals with the claim of another legal positivist, Austin, and presents his arguments against coercion being an integral part of law. It is an interesting observation that these legal jurists namely Hart and his predecessor Austin are both legal positivists. Legal positivism is a school of thought that does not take the merits of social rules into account; it is a reductionist theory that disregards the element of subjectivity in law, in short it is a descriptive theory of law.

[NOTE: It is super important to connect the other chapters of The Concept of Law (COL) to what is being discussed at present. For instance here we are going to discuss ch 2-4 of the COL but we are mentioning the preface of the book because it discusses the aims of Hart regarding those chapters. The more you connect material from other chapters of his book, the more better your answer will be]

Austin like his predecessors Hobbes and Bentham asserts that coercion and law are two sides of the same coin, emphasizing that the law is a command by a sovereign- a person who is habitually obeyed; and defiance of law is followed by a sanction. Austin resolutely adds the element of sanction with non-compliance of law. Hart albeit a positivist himself, criticizes Austin’s command theory and describes it as an ‘Order Backed by Threat’ (OBT) model. In the aforementioned chapters of ‘The Concept of Law’, Hart grounds the arguments for why coercion is not a fundamental aspect of law and why Austin’s command theory in contemporary society would be too crude and simplistic to pursue.

Also Hart states that the command theory of law propounded by Austin is an imperative and a predictive theory of law. It is imperative because it focuses on sanctions being an integral part of his theory and it is predictive because it can be predicted that failure to observe a command will be followed by the imposition of a sanction. Hart therefore deconstructs Austin’s command theory and gives reasons for doing so.

Hart

Hart delves into linguistic subtleties and says that there are a varieties of law that exist and what Austin has done is given a one dimensional account of law as comprising of orders alone. Thus the varieties of law exist and differ as to their content, origin and range (all will be discussed below).

[NOTE: Hart goes into linguistic subtleties, here again this is one of his aims mentioned  in the preface, he looks at the meanings of words and their intricate nature as well]

VARIETIES OF LAW:

1. The Content of Law

• Are all laws orders backed by threats? If I enter into a contract of marriage and then change my mind, will the sanction be as coercive as that of if I had trespassed into someones home or pushed a woman with a egg shell skull? This problem will be highlighted here (below)
• Hart’s major dissatisfaction of the Command theory model is that it is ubiquitous, in a sense that it ignores rule following and reduces the element of law to the legitimate use of coercion on the pretext of defiance.
• Hart goes into linguistic subtleties and embarks on explaining the difference between orders and laws.
• He refers to his famous ‘gun man’ situation and claims that Austin’s definition of what he considers to be orders are similar to orders given by a gunman in a bank; in this case, Hart likens the gunman situation for a banker to being forced to comply with the law.
• He compares the gunman situation with that of a tax inspector and asserts that it is here that compliance to the law is crucial since it is a rule that people who evade tax will be punished, thereby drawing a distinction between ‘being obliged’ or being coerced (gunman situation) and ‘having an obligation’ or being under a duty (tax inspector situation).
• Hart argues that Austin’s theory cannot explain the variety of different types of laws encompassed within a legal system.
• Laws are not orders backed by threats. And if some laws do resemble orders backed by threats, for example criminal law, not all laws can be classified as such as there are many types of laws that don’t resemble orders backed by threats for example laws that prescribe the way in which valid contracts, wills or marriages are made, these laws do not compel people to behave in a certain way.
• The social functions of these laws are different from those laws that assert the gravity of sanctions such as criminal law. These laws ‘provide individuals with facilities for realizing their wishes by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions , structures of rights and duties…’ These laws are regarded as power conferring rules, because they confer power over individuals to enter into contracts and act in a capacity of a private legislator.
• Thus Hart asserts that in terms of content, not all laws are imperative or coercive and adds that Austin neglects the crucial distinction between duty imposing rules (or primary rules) which do impose sanctions such as those pertaining to a criminal charge arising in defiance of criminal law and separates those laws from power conferring rules (or secondary rules) which include the making of a contract or a Will because these don’t impose such sanctions.
• Hart says that the power conferring rules (or secondary rules) appear as an additional element introduced by the law into social life over and above that of a coercive control.
• To rebut this, it can be stated that Austin argued that such laws i.e. the power conferring ones can be accommodated within the concept of commands backed up by sanctions through the idea of nullity of a contract as a form of sanction.
• Hart rejects this on conceptual grounds; the idea that all laws have to conform to the straitjacket of orders backed by threats is a conceptual distortion because nullity is part of the concept of contract. Hart says that nullity may not be an ‘evil’ to the person who has failed to comply with some requirements. And where a measure fails to become law because it is not passed by the requisite majority, this failure cannot meaningfully be thought of a sanction.

2. The Range of Application:

• How is that the sovereign in Austin’s theory gives commands whilst remaining unaffected by them? Is the sovereign bound by no rules at all? This issue will be discussed here (below).
• The range of application of law is not the same as the range of application of an order backed by threat.
• In Austin’s theory, there is a relationship between the sovereign and the subject, but this relationship isn’t a reciprocal one. Here the law-maker is not himself bound by the command he gives and he his unfettered by the chains of legal positivism. The order he gives is always directed to others and not to him.
• Hart concedes that in some systems of government this may occur in certain circumstances but in many systems of law legislation has a force that is binding on the body that makes it.
• So as the law maker can be bound by his own law, the Austinian concept of sovereign-command-obedience-sanction cannot be of universal application and so it fails.
• To rebut this, it can be stated that for Austin there was a distinction between the law-maker in his official capacity and the law-maker in his private capacity. Whereas in the first capacity i.e. of a law-maker’s he makes laws and in the second capacity, that in his private capacity, he is bound by them.
• Hart dismisses this view of law-making process as failing to account for what actually occurs. According to him, the legislator exercises powers conferred by rules, within the ambit which he himself may often fall.
• Thus in Austin’s scheme of legal system, the sovereign remained unaffected by the law he created, such as the gunman, who is the only source of commands and who is not subject to others commands. Hart argues that this is an inaccurate description of law, noting that legislators are very often subject to the laws they create because of mechanisms such as democracy, accountability, transparency for instance the prevalence of the VIP culture in Pakistan and consequences such as revolutionary regimes for instance Imran  Khan’s challenge of the status quo and the struggle to uphold social rights and justice.

3. The Mode of Origin:

• Is there just one source of sovereign or are there more as well? There are further problems with the sovereign and habitual obedience and these will be elucidated here.
• Hart says that legal authority cannot be identified in terms of merely persistent habits, they have to be rooted in rules and their functioning.
• Austin characterizes the sovereign as being both ‘illimitable’ and ‘indivisible’. Hart points to the legal realities of federal systems, bicameral legislatures and entrenched bill of rights. And asserts that Austin’s theory of sovereignty is unrealistic.
• Hart asserts that Austin believed that every legal system had to have a sovereign who creates the law (origin) and argues the description of the sovereign as being illimitable i.e. without limits and indivisible i.e. cannot be divided, is an inaccurate description of law noting that laws may have several sources such as the EU Law; by-laws; customs and treaties and this is where the concept of shared sovereignty comes in. For instance when we look at EU, and since UK is a member state of the EU, it can be said that in certain areas the EU has competence and the UK has to give up its sovereignty in those areas to follow the dictates of the EU eg. the Factortame case. In the case of international law, we know that international pressures bind the the limits of the sovereign and the sovereign then has to comply and amend and make changes one example is the case of UAE where the Amnesty International has reported the country of  oppressing activists and limiting free speech. And there are of course various other examples.
• There is also another problem closely connected to this one and that is of the Persistence of Laws and habitual obedience. Hart says that Austin is unable to explain the continuity of legal authority: how do we know when and where a new sovereign emerges when an existing one dies or is succeeded.
• Why do laws enacted hundreds of years ago survive today, given successive changes in the identity of the sovereign? Is that through the process of habitual obedience of the sovereign? If that were the case then from one sovereign to the next it would be hard to shift obedience because the bulk of the population would still be obeying the old sovereign before the new one takes over. The concept of habitual obedience is a flawed one as Hart points out: ‘….for the conception of the legally unlimited sovereign misrepresents the character of law in many modern states where no one would question that there is law.’

Andrei Marmor is an academic and  in his book, ‘Philosophy of Law’ mentions that Hart was at pains to show that the identification of law with state sovereignty is profoundly misguided; for him law is independently grounded on social rules, not on political sovereignty. For Hart, the legal hierarchy included political sovereignty, but it came after legal norms. Hart wanted there to be a less stringent connection between the law and the state. (See the illustration below)

[NOTE: Please mention at least one academic in your answer to make the analysis better]

• 
• There is no doubt that Hart has dedicated a substantial part of his book in criticizing Austin, and his criticism was based to the extent that it contributed to using the wrong building blocks for the establishment of a legal system. For Hart laws were not comprised of commands and laws did not necessarily have to emanate from a political sovereign.
• Law was not a command because law was also used for instructions and directives used by people to conduct their lives. For Austin, each and every legal norm was a command backed by the threat of a sanction. Hart acknowledges that some laws are of this type but a great many laws are there not to impose obligations.
• For Austin, like his predecessor, Hobbes, law is an instrument of political sovereignty which functions to pacify the society by monopolizing the use of force to ensure a peaceful coexistence of individuals. Hart further disagrees with the concept of sanction and use of threat as he believes that a command is an appeal to respect authority and not to fear it, and according to him, law doesn’t necessarily need an element of sanction in order to fulfill it functions.
• Austin believed that the only way for a command to be legal was if it emanated from the political sovereign. In this way Austin’s theory of law is said to be crude and simplistic, as this person or group of persons is\are habitually obeyed and are not in the habit of obeying anyone.
• At this point Hart draws a distinction between the two categories of social rules. A social rule may demand a person to take of his hat upon entering a church but there is no sanction attached to this rule, except that it might attract criticism from others. Another type of social rule on the other hand may demand that everyone stops at the red light. The latter kind of social rules are those that are in the context of law and have a legal requirement to them. Therefore, taking off your shoes before you enter a masjid is a kind of social rule that doesn’t demand a strict reinforcement (of course if you defy it you will be criticized) but following the traffic rules and paying ones taxes are social rules of a legal nature, they are enforced.
• For Hart, the tools that Austin provides are insufficient as they fail to explain the implied form of legal transition from one sovereign to another, as the habits take time to evolve, the people governed by a successive heir to the throne will be already following the laws of their new sovereign’s predecessor, and their sovereign impliedly also habitually obeys the laws of his predecessor.
• Hart’s criticism of Austin’s theory of law is quite profound as Hart presents with it some cogent arguments to dispel Austin’s simplistic albeit crude ‘Command theory’ of law, thereby dedicating one third of his book to criticizing Austin’s theory.

[NOTE: Please read Cotterrell’s defence of Austin from Penner to form better arguments pp. 134-142]

---

Examination question:

1. To what extent, if at all, is the validity of Hart’s theory of law dependent upon the correctness of his critique of Austin’s theory of law? (Section A)

2. Defend Austin’s theory against Hart’s criticism of the ‘orders backed by threats theory’. (Section B) [Do this after reading from Cotterrell.]

Tags: Austin, Command Theory of Law, Concept of Law, Hart, Jurisprudence, Jurisprudence and Legal Theory