Austin treats laws as a kind of command. Hart thought it was more accurate to describe them as rules. Today’s class went over some of Hart’s major reasons for thinking that it is more accurate to describe laws as rules.
We started with three characteristics of law, according to Austin’s theory.
Each point has difficulty accommodating some central cases.
We discussed ways that Austin might try to accommodate these points. For instance, he could distinguish between the legislative body that makes the laws and the individual legislators who must obey them.
I am not sure that these maneuvers would work in the end. For instance, the legislative body, like Congress, can be subject to laws too. But we did not pursue this sort of question. The reason is that we have a more straightforward explanation of these features of the law on offer: Hart’s view that laws are rules.
Hart also criticized Austin’s account of obligation. Austin, according to Hart, failed to distinguish between ‘being obliged’ to do something by a threat and ‘having an obligation’ to do it. The position of a person with legal obligations is different in kind than the position of someone faced with a gunman, according to Hart, but Austin runs the two together.
In place of Austin’s theory that legal obligations consist in threats of punishment, Hart proposed rules as a source of obligation. The idea is simple: a rule tells you what to do.
What is complicated about Hart’s discussion of obligation is the material on what he called the internal and external points of view. That is most directly aimed at the legal realists, who treat having a legal obligation as equivalent to a prediction about punishment. So we put off discussion of this part of Hart’s discussion of obligation until later.