Hart and Austin on obligation Notes for January 27

Main points

We talked about three things:

1. Hart’s claim that Austin conflates obligation with the “gunman situation.”
2. Hart’s claim that there is a deep problem with Austin’s approach that leads him to miss what Hart calls the internal aspect of rules.
3. Whether Hart can both disagree with Austin and deny that legal obligation is a species of moral obligation. (Hart very much wanted to insist on the separation of law and morality, as we will see.)

Obligations and rules

Many laws are obligatory: the criminal law, for instance, dictates very clearly what you may not do. Austin and Hart disagreed about how to understand legal obligation. Austin traced it back to commands and sanctions. Hart thought that obligations are best understood as a product of rules and that Austin’s method would never yield an adequate understanding of rules.

In order to illustrate Hart’s second point, I asked you to pretend you were anthropologists trying to explain a curious fact about our culture: baseball players run to first base after hitting the ball about as predictably as people avoid doing things that put their lives at risk. To understand why this is so, you need to understand that the players are trying to follow the rules of a game.

In Hart’s terminology, to see the rules of baseball from the player’s perspective is to appreciate the “internal aspect of rules.” In rule governed activities like games, you can only accomplish what you want if you follow the rules (or, at least, come very close almost all of the time). Since this is so, players who want to win look to the rules as guides for what they should do.

Hart thought that obligation is best understood as a kind of rule-governed behavior. To think that you have an obligation to do something is to take the internal perspective on the rules that require you to do that thing.

Of course, there are lots of rules that require lots of things. You’re not allowed to run outside of the base paths in baseball, you’re not allowed to wear white shoes before Memorial Day, and so on. All rules are at least superficially mandatory in this way. But only some of those requirements are obligations. Hart noted that obligatory rules are typically important and enforced. There’s a question, then, about whether his views are significantly different than Austin’s. If obligation rests on enforcement in both cases, what’s the difference? I think there is one, but it’s subtle.

Sovereignty

We turned to sovereignty last. The sovereign authority in a society is the body that makes laws for that society. Austin defines sovereignty in terms of habits of obedience. Hart applied his point about the internal aspect of rules here as well. At the very least, habits aren’t mandatory but we are required to recognize and obey the sovereign authority in our society.

We will continue with sovereignty next time when we talk about Hart’s rule of recognition.