Hart on Austin

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.

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.

1. Rules can apply to those who make them.
2. Rules can tell people how to do something like make a valid contract.
3. Rules can identify the rightful ruler from the first day.

Obligation

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.

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.