Austin on command and obligation Notes for January 26

Main points

We talked about Austin’s claims about the necessary and sufficient conditions on being a law. Specifically, we talked about his claims that being a command is a necessary condition of being a law and that threatening sanctions is a sufficient condition of generating an obligation.

What is Hart’s theory

Here’s where Hart is headed. He is a legal positivist, like Austin. They both believe that there is no necessary connection between law and morality. Hart disagrees with Austin about the details. Austin thinks that what law is can be understood in terms of more basic notions of command, sanction, and superiority. Hart believes that the more fundamental concept is rules. He thinks that laws are a particular kind of rule.

This might help to explain his interest in so-called power-conferring rules, like electoral law. Electoral law is a set of rules that specify how to elect legislators; they enable citizens to do things but they aren’t like commands that involve threats, according to Hart. We could probably work these laws into a theory like Austin’s if we tried hard enough: maybe they’re really threats issued to election officials or maybe the failure to cast a valid ballot is a kind of sanction. But Hart thinks the more illuminating answer involves defining law in terms of rules rather than commands and sanctions.

The question we ended with is whether Hart can consistently make his point about the gunman case while retaining his commitment to legal positivism. Hart uses this case to argue that sanctions are not sufficient for obligations. Kelly observed that this sounds like natural law talk. It sounds as though Hart is saying that laws must impose obligations and the command theory is a bad theory of law because it does not explain how there could be moral obligations to obey the law.

Ben had the kind of response that Hart will need: there’s a distinction between legal obligations and moral obligations. Obligations in general are specified by, you guessed it, rules. Moral obligations are specified by moral rules and legal obligations are specified by legal rules. We’ll have to see if he can make that kind of response out in a persuasive way.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted January 26, 2009.
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