Obligation & sovereignty Notes for January 28

Main points

We talked about Hart’s notion of the “internal” aspect of rules. We did so in order to get at his objection to Austin’s account of obligation.

We also talked about Hart’s objections to Austin’s view of sovereignty and his own theory that the law is the union of primary and secondary rules.

What’s an obligation?

Austin defined “obligation” in terms of threatened sanctions. But that definition doesn’t correspond very well with our ordinary understanding of the term. The gunman situation is supposed to illustrate this.

In the place of threats and sanctions, Hart puts rules. But not just any rules. They have to be rules that are internalized, as Toby pointed out, and socially enforced, as Ben and Calum noted. Albert gave us a helpful set of terms: the rules have to be internalized and normalized.

This is all illuminating, but it falls short of a definition. Kelly wondered whether that is a problem: can Hart criticize Austin’s definition without offering a replacement? I think we’ll have to see whether his theory of law as the union of primary and secondary rules does enough to be satisfying. That will be our topic next time.

What about sovereignty?

Sovereignty plays a major role in Austin’s theory. Hart criticizes that theory and replaces it with secondary rules, that is, rules about making, changing, and interpreting primary rules.

So instead of looking for who is the sovereign in a given society, Hart thinks it is more illuminating to see what bodies have the power to make, change, or interpret the other rules. We can see that by looking at the relevant rules. For instance, in our system, we have rules that identify legislatures and specify their powers. We also have rules that identify judges and specify their powers.

Hart maintains that this system of rules throws more light on what a legal system is than Austin’s definitions did. Whether that is so is something we’ll talk about next time.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted January 28, 2009.
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