Hart’s Criticisms of Austin and the Realists

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.

Problems with the command theory

We started with three claims that Austin makes about law.

  1. Laws are addressed from superiors to inferiors.
  2. Laws are enforced with sanctions.
  3. Laws are given by sovereigns, defined as people whom the other members of society are in a habit of obeying.

Each point has difficulty accommodating some central cases.

  1. Most laws apply to the legislators. When that is so, who is the superior and who is the inferior?
  2. Some laws enable people to do things, like making contracts or wills. These work more like recipes than commands.
  3. There can be laws whose source is not a sovereign’s command; customary law, for example.
  4. There can be sovereigns without habits of obedience. Hence, Rex II can be the sovereign on the first day of assuming office.

We discussed ways that Austin might try to accommodate these points. Perhaps the theory could be made to work.

But Hart has a reasonable point that every point is easily accommodated if we accept his view that laws are rules. Rules can apply to legislators. There can be what Hart calls enabling rules that dictate how to do things like making a will or a contract. And there can be rules that define the office of the sovereign, such that Rex II can occupy the role even before anyone has a habit of obeying him.

I left out customary law. Hart maintains that rules can give custom the status of law, even if it is not the command of a sovereign. The relevant rule in his system would be the one called the rule of recognition. This, however, is going to be a point of contention between Hart and Dworkin. Dworkin does not think we could specify a rule that would enable us to identify customary law. So stay tuned to see how that point turns out.


Hart thinks his best point concerns 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 you must do.

It seems to me that Hart is correct about moral obligations: being threatened is neither a necessary nor a sufficient condition of having a moral obligation. But legal obligations are not obviously the same as moral obligations. So we need a reason for thinking that legal obligations have these features of moral obligations.

Hart gave such a reason. He proposed three features of obligatory rules and noted that they are shared by both moral and legal rules (Hart 1994, 86–87).

  1. The rules are important for maintaining social life.
  2. Social pressure is brought to bear to enforce the rules.
  3. The rules might require people to do things they do not want to.

Internal and external aspects

According to Hart, obligations come from rules that are enforced (see the second feature above). According to Austin, obligatory rules are backed by a threat of sanctions, no matter how feeble (Austin [1832] 1955, 16). What’s the difference?

As Hart sees it, the difference is that Austin is identifying obligations with being threatened with sanctions while he believes an obligation is something that a rule requires you to do. As he sees it, what the law requires you to do is one thing while your motivation for complying with the law is something else. What the stop sign says is stop, period. Your reasons for paying attention to what it says are something else.

Hart tries to explain the difference with his distinction between what he calls the internal and external point of view on rules (see Hart 1994, 88–91). We take the internal point of view on a rule when we simply follow it: the sign says stop, so I’m stopping. We take the external point of view on a rule when we use the rule to predict people’s behavior: the sign says stop, people who ignore stop signs are often punished, I don’t want to be punished, so I’m stopping. The prediction here is that you will be punished for ignoring the sign.

I am persuaded that Hart’s distinction is a genuine one. But I think it is an open question whether he is right to say that legal rules primarily work because people adopt the internal point of view on them. In particular, Austin (in our class) made a strong case for the position advanced by Austin (the author) and Holmes that we are interested in the law because we want to make accurate predictions about how the state will use its power.

Key concepts

  1. The parts of the law that do not fit the command theory, especially enabling or power conferring rules.
  2. Why Austin seems to treat legal obligation as the same as being threatened by a gunman.
  3. Hart’s understanding of “obligation.”
  4. The internal and external aspect of rules.


Austin, John. (1832) 1955. The Province of Jurisprudence Determined. London: Weidenfeld and Nicolson.

Hart, H. L. A. 1994. The Concept of Law. Second edition. Oxford: Clarendon Press.