We went over Austin’s version of legal positivism, the theory that laws are commands. We noted several problems with the theory that Hart’s version of legal positivism will address.
A number of our questions surrounded the place of threats in Austin’s theory. Laws are commands and a command is an expression of a desire coupled with a threat. A threat generates an obligation in the party who is threatened. So commands are always obligatory.
But what if the threat is a fine that I have no trouble paying (Kenny)? Or what if I know that I have a fatal illness and won’t live to suffer any consequences (Raphael)? What if I can get away with it without being caught (Emily)?
In all of these cases, there is a legal obligation even though, it seems, there is not much of a threat. Austin held that threats are necessary for legal obligations, so these cases seem to refute that point.
Austin himself confronted the point directly.
“the magnitude of the eventual evil, and the magnitude of the chance of incurring it, are foreign to the matter in question. The greater the eventual evil, and the great the chance of incurring it, the greater is the efficacy of the command, and he greater is the strength of the obligation. Or (substituting expressions exactly equivalent), the greater is the chance that the command will be obeyed, and that the duty will not be broken. But where there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a command, and, therefore, imposes a duty.” (77)
He is free to define his terms as he wishes, of course. But it is reasonable to ask whether threats are doing any genuine work in the cases Kenny, Raphael, and Emily mentioned.
As we will see, Hart thought that rules afford a more straightforward way of explaining the nature of legal obligation.
We ended with a question for both Hart and Austin: what happens when judges make decisions by appeal to legal principles and customary law? They seem to be finding the law in something other than the commands of a sovereign (Austin) or rules (Hart).
Austin has an answer: they’re legislating (see pp. 83–84). But that is not what the judges think they are doing: they think they’re discovering the law rather than making it. Austin’s position has to be that they’re deluded about their own activity. Maybe that’s right.
Here are the terms and concepts that you should know.
The relationship among the elements of Austin’s theory: command, threat, obligation, and sovereignty.
How Austin handles so-called customary law.