Hart prepares the ground for his own theory of law by examining the failures of an earlier (19th century) theory of law, mainly that of John Austin.
Austin’s theory of law was very simple, perhaps even simplistic. He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns.
Law is commands laid down by a sovereign
Commands are an expressed with that something be done coupled with a threat of sanction for non compliance
Sovereign is person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution.
General orders backed by threats given by one habitually obeyed (Austin, summarised by Hart, CoL 24)
The foundations of a legal system consist of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one. CoL 100
We shall follow Austin in an attempt to build up from it the idea of law. We shall not, however, hope, as Austin did, for success, but rather to learn from our failure. CoL 20
Very Brief Biography
Herberet Lionel Adolphus Hart—H.L.A. Hart—was born in 1907 and began his career as a barrister, practicing law in London for eight or nine years
He then was a Fellow and Tutor in Philosophy at New College, Oxford from 1945-1952, then University Professor of Jurisprudence at Oxford until 1968, and then Principal of Brasenose College, Oxford until he retired in 1978, although he remained quite active until his death in 1992.
Ronald Dworkin, who we will also read in this course, was a student of Hart’s, and eventually succeeded Hart as Professor of Jurisprudence at Oxford, although Dworkin is now Professor of Jurisprudence at University College London.
The Concept of Law
It was published in 1961 and which is considered a modern classic in legal theory. Just before his death, Hart added a postscript to The Concept of Law to respond to some of the criticisms leveled against the book by Dworkin.
In The Concept of Law, Hart not only addresses the question “what is Law,” he also discusses the role judges play in creating and interpreting the law and examines the connection between law and morality.
Hart begins by noting that there are three persistent questions about the nature of law
a) First, what is the relationship between law and coercion?
1. the most prominent feature of law in all places and in all times is that it makes certain kinds of human conduct no longer optional, but in some sense obligatory
2. this has led some theorists (notably John Austin) to characterise law as “orders backed by threats,” and Austin’s view has had a great influence on much of the science of jurisprudence
3. Hart concedes that there is some truth to this view, but he considers it overly simplistic, and therefore tells us that one of his tasks will be to examine more precisely the ways in which law and legal obligation differ from and are related to “orders backed by threats”
b) The second persistent question about the nature of law that Hart tells us he plans to examine is the relationship between law and morality
1. law and morality clearly share a certain vocabulary—there are both legal and moral rights, legal and moral duties, and morality also makes certain forms of human conduct no longer optional but in some sense obligatory
2. there is also a great deal of coincidence between the types of conduct that are subject to moral prohibitions and the types of conduct that are subject to legal prohibitions—murder and most other forms of violence, theft, and most instances of breach of promise, for example, are all prohibited by both legal and moral rules in every society
3. this as led some to argue that law is simply a branch of morality called justice
4. yet we are also prepared to criticise law as unjust, and to argue that unjust laws should not be obeyed, so clearly the relationship is more complicated than this—justice is something both inside and outside law, not coextensive with it, it is a standard against which law may be evaluated, and a more precise statement of the relationship between the two needs to be specified
c) And finally, the third persistent question about the nature of law that Hart plans to examine is the nature and status of rules
1. for example, some rules tell us how to behave and other rules tell us what we must do to give effect to our wishes (e.g. how to make a will), and this is a distinction that needs to explored and explained
2. there is also a distinction between rule-obeying behaviour and habitual behavior that needs to be examined and explained
3. and finally, there is the question of what courts are doing when they purport to apply rules
a. are they merely interpreting existing law and applying it to the particular circumstances before them
b. or are they sometimes filling gaps in the law by creating new law in areas where there was none before
c. and if the latter, is this a legitimate role for the courts to play, or should these sorts of law-making activities be reserved exclusively for the legislature?