As we said in the first post of the series,Hart prepares the ground for his own theory of law by examining the failures of an earlier (19th century) theory of law, 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.
Las week we continued with Hart’s analysis on Austin’s command model of the law.
This week we are going to focus our attention on Hart’s criticisms with regards Asutin’s theory.
“there are important classes of law where this analogy with orders backed by threats altogether fails.” CoL 27
“Law without sanctions is perfectly conceivable” CoL 38
Hart’s first criticism is that Austin’s model focuses on duty conferring norms and ignores power conferring norms. In other words, some laws are not orders to do or not do something, but simply provide individuals with facilities for accomplishing their desires. An example of the latter would be laws describing how to make a will, or how to make contract, or how to marry—these laws do not take the form of a command, and they don’t imposes a duty on anybody to do anything—they merely say that if you observe certain specified formalities your actions will have certain specified effects. These types of laws—laws that confer a power on private individuals or public institutions—are not adequately characterised as “orders backed by threats”. The command model simply can’t account for the variety of laws, and that is the point that Hart is trying to make.
Hart also considers and rejects various attempts that have been made to bring “power-conferring rules” within the category of “orders backed by threats”. But Hart rejects all these attempts to save the command model as distortions of what they really are.
Another problem with Austin’s model is that it does not account for the fact that lawmakers are bound by the laws they make (see p. 42-44)
1. unlike the orders of gunmen, laws typically apply to those who enact them and not merely to others, and Austin’s model does not seem able to account for this (see p. 79)
2. in other words, there is nothing essentially “other-regarding” about law, as there is with orders directed at others to do things under threats, for law may perfectly well have self-binding force
3. nor does it seem satisfactory to account for this by treating legislators as enacting laws in their official capacity but being subject to them in their personal capacity
Austin’s model does not explain the binding legal force of customary norms. Austin argued that custom only becomes law when it is first applied by the courts and thereby receives “legal recognition”. But Hart argues that customary norms are treated as law even before they are applied—i.e. they are applied because they are law rather than they become law because they are applied.
Hart also claims that Austin’s model fails to explain the durability of law in two respects
a. Austin’s model fails to explain the continuity of obedience though the transition from one sovereign to another.
b. Austin’s model also fails to account for the persistence of laws enacted long ago
How [is] the first law made by a successor to the office of the legislator already law before he personally had received habitual obedience?
How can law made by an earlier legislator, long dead, still, be law for a society that cannot be said to habitually obey him? CoL 62
“it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power” CoL 53-54.
“it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power by rules which bridge the transition from one lawgiver to another” CoL 53-54.
rules…which may in a sense be timeless CoL 62
Hart also has problems with Austin’s conception of sovereignty in general. The Austinian model does not claim that the power of the sovereign is unlimited, for there may be various limits on what the sovereign may do imposed by popular opinion or even the sovereign’s own sense of morality. What the Austinian model does claim, however, is that the sovereign’s power is subject to no legal limits. But it is hard to identify a sovereign whose power is not subject to some legal limits.
See CoL p. 70-71 for a summary of the problems Hart sees in Austin’s conception of sovereignty.
Hart’s theory: being obliged or having the obligation
Hart first focuses on the normative quality of rules. There is a difference between the acceptance of rules and habitual obedience: the acceptance of rules entails both a desire to conform and the expectation that deviations will evoke censure and pressure for conformity, whereas with mere habits, aberrations do not generally provoke censure.
Hart also distinguishes “being obliged” from “having an obligation“. “Being obliged” means being compelled to do or forbear doing a certain act from fear of punishment. “Having an obligation” means being required to do or forbear doing something by an authoritative set of norms.
Hart distinguishes between breaches of rules as “signs” that punishment will occur and breaches of rules as “signals” that punishment should occur: a) where a breach of a rule is a sign that punishment will occur it is predictive; b) where breach of a rule is a signal that punishment should occur the rule is normative.
Considering yourself as “having an obligation” and seeing a breach of a rule as a “signal” that punishment should occur rather than simply as a sign that punishment willoccur is only possible if you are looking at a legal system from the internal perspective. So the internal perspective is an engaged or committed perspective and this the perspective of the participants in a legal system.