Austin treats laws as a kind of command. 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 claims that Austin makes about law.
Each point has difficulty accommodating some central cases.
We discussed ways that Austin might try to accommodate these points.
For instance, he might try to address the first problem as Peter and Taylor both suggested by distinguishing between the legislative body that makes the laws and the individual legislators who must obey them. Legislators pass laws when they are acting in their official capacity and are subject to laws when they are acting in their personal capacity.
He might try to follow Leo’s suggestion for dealing with the second problem. Contract law is primarily a set of commands addressed to judges. Judges, in turn, issue commands to individuals. For instance, if you default on a valid contract, the judge will be commanded to command you to do your part in the contract. (We talked a lot about a topic that Hart thought was illuminating: games. Are the rules of a game addressed to the players or to the referees?)
These suggestions are very clever. I am not sure whether they would work in the end. For instance, the legislative body, like Congress, can be subject to laws too. There are laws defining what the legislative body can do, what makes an individual a member, and so on. 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. We will talk about that next time.