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.
(To peek ahead a little, Hart’s theory is that law is the union of primary and secondary rules. But we won’t get to the distinction between primary and secondary rules until next time.)
Problems with the command theory
We started with three claims that Austin makes about law.
Laws are necessarily addressed by superiors to inferiors.
Laws are necessarily enforced with sanctions.
Laws are necessarily given by sovereigns, defined as people whom the bulk of a society is in a habit of obeying.
Each point has difficulty accommodating some central cases.
Most laws apply to the legislators. When that is so, who is the superior and who is the inferior? Note that this is not just the point that criminal laws apply to government officials. There are also laws defining their offices and the acts they are capable of performing in their official roles.
Some laws enable people to do things, like making contracts or wills. These work more like instructions than commands.
There can be laws whose source is not a sovereign’s command; customary law, for example.
There can be sovereigns without habits of obedience. Hence, Rex II can be the sovereign on the first day of assuming office.
Hart is willing to concede that there might be ways of modifying the command theory to accommodate at least some of these points. His main contention is that every one of them is easily accommodated by his theory 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.
Did you see that I left out customary law? Hart thinks there can be a rule for that too. We will talk about it when we talk about the rule of recognition next time. You can get a taste of what he has in mind on page 95. He says a legal system could recognize as law those rules that have been observed in a “long customary practice” (Hart  1994, 95). This 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!
Hart thinks his best point concerns obligation. This is the one that he believes a command theory cannot accomodate. Austin, according to Hart, failed to distinguish between ‘being obliged’ to do something by a threat and ‘having an obligation’ to do it. Austin runs together two things that Hart thinks are different: the position of a person with legal obligations is different and the position of someone threatened by a gunman.
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 proposed three features of obligatory rules and noted that they are shared by both moral and legal rules (Hart  1994, 86–87).
The rules are important for maintaining social life.
Social pressure is brought to bear to enforce the rules.
The rules might require people to do things they do not want to.
We had some discussion of what, exactly, is meant by “social pressure.” One thing I took away from that is that social pressure is different in moral and legal cases. The state will exert pressure on me to comply with traffic laws that you would not blame me for violating. (By the same token, there can be social pressure to violate laws that are thought to be immoral.)
OK, suppose we have identified the rules that are obligatory. According to Austin, obligatory rules are backed by a threat of sanctions, no matter how feeble, and Holmes believes something similar (Austin  1955, 16; Holmes 1897, 461). What’s the difference between Hart on the one hand and Austin and Holmes on the other?
As Hart sees it, Austin and Holmes are missing what he calls the “internal aspect” of rules. They see the way legal rules work as providing evidence for making a prediction about how the state will act. If the sign says “stop” and you know the traffic law, you can predict that you are in jeopardy of being fined if you don’t stop. Hart thinks this is not the way that rules actually work. The way they actually work is as directions about what to do. The vast majority of people see the sign and understand it as telling them to stop, period.
Hart thinks that analogies with games help to make the point. If you are playing baseball and you hit the ball, you take the rules as telling you what to do next: run to first base. As Camilla put it, if you are in the game, you take the rules as directives about what to do; if you run to third, walk away, or dance around, you’re coming close to not playing baseball any more. An external observer who is not playing the game but trying to figure it out might use the rule book together with some observations about how the players and umpires act in order to make predictions about what will happen. But that would be a very different way of thinking about the rules than the one used by the players.
Hart thinks something similar is true of legal systems. They function only if most people take the internal perspective on their rules. That means they primarily take the rules as telling them what to do rather than taking them primarily as evidence to use in making predictions about how government officials will act.
The distinction between the internal and external aspect of rules is tricky so we spent most of our time just trying to understand what Hart means. We did not have much time to subject it to critical discussion. So I will just say for the record that it seems to me an open question whether Hart is right about how people act under a legal system. I don’t think it is obvious that everyone is “in” the law in the way that chess players are in that game. Nico and Autumn brought up a couple of differences and I added that the law is mandatory in a way that participation in games is not.
Daisy gets the last word here. She noted that even if we grant Hart everything he has said about how rules create obligations, we still don’t know which rules are legal rules. Lots of rules are obligatory: moral rules are, for instance. So which ones are the legal ones? The answer to her question comes next time. Hart will call the obligatory rules “primary rules” and he will introduce a set of rules for creating, modifying, and enforcing those rules that he will call “secondary rules.” His grand theory is that law is the union of primary and secondary rules. So Daisy is right. Understanding primary rules alone isn’t enough to characterize the law.
These are the main points that you should know from today’s class.
The parts of the law that do not fit the command theory, especially enabling or power conferring rules.
Why Austin and Holmes seem to treat legal obligation as the same as being threatened by a gunman.
Hart’s understanding of “obligation.”
The internal and external aspect of rules.
Austin, John. (1832) 1955. The Province of Jurisprudence Determined. London: Weidenfeld and Nicolson.
Hart, H. L. A. (1961) 1994. The Concept of Law. 2nd ed. Oxford: Clarendon Press.
Holmes, Oliver Wendell. 1897. “The Path of the Law.” Harvard Law Review 10 (8): 457–78.