We discussed four criticisms Hart made of Austin’s theory. These criticisms, in turn, are supposed to lend support to Hart’s own view.
Sydney kicked us off with the first problem: criminal laws fit Austin’s model the best, but criminal laws can apply to everyone, legislator and citizen alike. That doesn’t fit with Austin’s contention that laws are addressed by superiors to inferiors.
As an exchange between Graham and Callum showed, the point isn’t that no legal systems work the way Austin said. It is that some do. If Austin’s theory is correct, there cannot be laws like this. So if we can find some actual laws that are, that suggests Austin was wrong.
Michael had some clever ways of making Austin’s theory fit the observed facts. I think he showed it might be logically possible to squeeze the way legal systems actually work into Austin’s model. But Hart will still have the upper hand if he can accommodate those facts more elegantly with his model of laws as rules.
Joseph took the lead on the second problem: there are laws that do not work by imposing sanctions. These are laws that make it possible to do things like vote, pass a law, or make a contract. Those who fail to comply with these rules aren’t sanctioned. They just failed to vote, make a law, or make a contract.
The third problem we discussed had to do with a gap between the continuity of government in most societies and Austin’s identification of sovereignty with habits of obedience. When Rex I dies, for instance, the government is transferred to his successor, Rex II even though no one is in the habit of obeying Rex II, except maybe Rex II’s dog. If we say that people are in the habit of obeying the office of the sovereign, we will have started moving towards Hart’s view, as political offices are identified by rules, not by the other marks of sovereignty that Austin uses.
Michael noted that I skipped over one of Hart’s arguments against Austin. It is summarized in a sentence that begins “Thirdly” at the bottom of the left column on page 68. At the time, I said I couldn’t remember what this referred to and that I would look it up later.
I just did that. I refers to the way some legal systems incorporate custom into their legal systems. That is, they recognize customary practices as making up part of the law even though no sovereign created those customary practices. See Hart, The Concept of Law, pp. 43–48.
In order to address Austin’s central concern, Hart believed he had to say something about obligation. First, he criticized Austin’s own way of explaining legal obligation. Then he proposed what he called the “internal aspect of rules” as an alternative.
The trickiest part about this is keeping the difference between Hart and Austin’s positions straight. Hart identifies obligatory rules as rules that are important for social life, enforced, and at least potentially in conflict with individual self-interest. That is supposed to be different than Austin’s view because Austin said that obligation and enforcement were the same thing. Hart did not: the rules that are obligatory are typically enforced, but their being enforced is not what makes them obligatory, according to Hart.
You should know these terms and concepts.