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.
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 but legislators can’t be both superiors and inferiors at the same time. 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. Failure to comply with these laws does not typically result in a sanction but rather a failure to accomplish what one sert out to do.
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.
Berto said that some of these points could be addressed if we understood the sovereign to be an office rather than the natural person who occupies the 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 on Obligation
Hart thinks his best point concerns obligation. This is the one that he believes a command theory cannot accomodate. Austin, according to Hart, fails 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 having a legal obligation and the position of being 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’s criticism of Austin 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 asserted 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.
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). Sanctions are a form of social pressure. So what’s the difference between Hart on the one hand and Austin and Holmes on the other?
Hart uses the distinction between the internal and external aspects of rules to explain what he sees as the difference between his position and theirs. Austin and Holmes 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 says that they use the external aspect of rules when they use rules to make predictions like this.
Hart thinks that the external aspect alone does not capture how rules actually work. They way they work is as directions about what to do. What the sign literally means is “stop” and not “if you don’t stop, you might be fined.” When you take the sign as telling you what to do, you are adopting the internal perspective on traffic rules.
Hart uses analogies with games help to make the point. If you are playing baseball and you hit the ball, you use the rules to tell you what to do next: run to first base. If you do a dance instead of running, you’re not playing baseball. Or if you’re playing chess, the rules tell you how to move the pieces and how to win. If you move the pieces in non-standard ways, you’re not playing chess. 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.
As Sarah noted, this develops out of a criticism of Holmes’s use of the bad man. If you think that the legal system could not operate if most people think like the bad man, then you might think that Hart is on to something. Most people do not think of laws as helping them to make predictions about whether they will be punished or not. Rather, they take them on the surface, as telling them what they can and cannot do.
Holmes and Austin on Obligation
If I were Austin or Holmes, I would be willing to grant the point that what a stop sign literally says is just “stop.” But, I would say, this does not tell us anything interesting about how legal systems work. What practical people are interested in is not what the law literally means, but what it tells us about how the state’s power will be used for or against them. Think of the professor who sets due dates for papers but says that the late penalty is only assessed one day after the due date. Practically minded students will treat the real deadline as being one day after the official one.1
I think I would also question the analogy between games and the legal system. I can see how someone who is trying to play chess would be also try to follow the rules. You can’t play chess without following the rules of chess, after all. So if you’re trying to do the one thing, you’re going to try to do the other. But the legal rules are imposed on us; they aren’t part of a game that we decide to play. So there is no reason to think that people would have the same “internal” attitude towards legal rules that people have towards the rules of games that they want to play.
I think that the debate between Hart, on the one hand, and Austin and Holmes, on the other, is close where the criminal law is concerned. In fact, Austin and Holmes might have the upper hand. But when we turn to what Hart calls enabling (or “power conferring”) rules, his analogies with games work much better. If I want to make a legally valid contract, I have to follow the rules set out in the laws of contract. Those rules tell me what to do because they define what a valid contract is, much as the rules of chess define what winning at chess is.
At this point, we have a sense of why Hart thinks that it is more accurate to define law as a system of rules than it is to define it as a system of commands enforced by sanctions. But we still don’t know which rules count as legal rules for Hart. After all, lots of rules impose obligations: moral rules impose moral obligations, legal rules impose legal obligations, and so on. So even if we understand obligations, we haven’t identified legal rules yet.
That 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.
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.
By the same token, Los Angeles County tells you that your property tax payments are due on February 1 and that penalties will be assessed for payments made after April 10. For almost everyone concerned, then, your property taxes are really due on April 10.↩︎