Overview

Austin treats laws as a kind of command. Today’s class will go over some of Hart’s major reasons for thinking that it is more accurate to describe laws as rules.

Problems with the command theory

Here are four claims that Austin makes.

1. Laws are necessarily addressed by superiors to inferiors.
2. Laws are necessarily enforced with sanctions.
3. Laws are necessarily given by sovereigns
4. A sovereign is a person, or group of people, whom the bulk of a society is in a habit of obeying.

Austin has difficulty accommodating some central cases on each point.

1. Some laws seem not to be addressed by superiors to inferiors. 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.

2. Some laws seem not to be enforced with sanctions. Some laws work more like instructions than commands. They enable people to do things, like making contracts or wills, rather than telling them what they must or must not do. 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.

3. Some laws are not given by a sovereign’s command. Customary law, for example, comes from past decisions of courts rather than a sovereign’s commands.

4. It is possible to be a sovereign without being habitually obeyed by the bulk of the members of a society. Hence, Rex II can be the sovereign on the first day of assuming office.

Hart contends that if we think of laws as rules we can easily handle these cases.

We will start by talking through those four cases and how construing laws as rules accommodates them.

In preparing, you should think about the difference between what Hart calls rules that impose duties and those that confer powers (Hart [1961] 1994, 81)

Discussion of Sovereignty

In our discussion, Lilly noted that the US Constitution doesn’t fit Austin’s definition of sovereignty very neatly. For the Constitution to count as part of the law of the United States, it would have to have been issued by a sovereign. The Constitution tells us who is speaking in the first line.

We the People of the United States … do ordain and establish this Constitution for the United States of America.

But no one was in the habit of obeying the people of the United States. There was no such thing as the United States! Nor was anyone in the habit of obeying the authors of that line who claimed to have been speaking on behalf of the people of the United States. It’s hard to find a sovereign here.

If I were Austin, I think I would say that the Constitution was not actually law until there was a sovereign who treated it that way. A bunch of guys get together and write up something that they call a constitution. Good for them! But it isn’t law until they have a state. Once they have a state, if that state wants to treat their constitution as law, then it’s part of the law. If not, it’s not.

I’m not saying that’s a completely satisfying answer. It’s just the one I would give if I were Austin. It’s tricky to say what’s wrong with it, though.

Max made a point that Hart would love. When we talk about sovereignty, we’re usually talking about offices or official positions. People are in the habit of obeying the office holder not the person who holds the office. That’s where sovereignty lies: in the office, not the person who holds it. I say that Hart would love this because offices are creations of rules. We have rules that say what it takes to be president, a member of congress, and so on. The human beings (or “natural persons”) who satisfy those rules occupy those offices. Hart’s point is that you need the rules to identify the sovereign rather than getting the rules from a sovereign.

Madeline said that she thought common law would be a problem for Austin since it comes from the decisions of judges in the past rather than a sovereign’s command. Austin thinks this works because sovereigns authorize judges to make the law this way. But that isn’t the way judges think about what they’re doing: they think they’re finding the law in past decisions not making it.

Of course, maybe Austin is right and they’re mistaken about what they’re really doing. It’s possible. Dworkin is going to say that Hart has a similar problem. We won’t be able to say why until we know more about Hart’s rule of recognition. That comes next time.

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. Another way to put that is to say that Hart thinks Austin runs together two things that 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.

As Soo Bin said last week, Hart appears to be on solid ground 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 proposes three features of obligatory rules and asserted that they are shared by both moral and legal rules (Hart [1961] 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.

According to Austin, obligatory rules are backed by a threat of sanctions, no matter how feeble, and Holmes believes something similar (Austin [1832] 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.

We will want to talk about Hart’s use of analogies with games to make his point about these two ways of looking at rules. The main question to think about is: how does a player use the rules of the game? Or, what would it be like to try to play the game by using the “external” perspective on its rules and what would it be like to play the game using the “internal” perspective?

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.

Here is an example that a student in the class gave a couple years ago. There is a professor who sets due dates for papers but says that the late penalty is only assessed one day after the due date. When is the paper really due?¹

If I were Holmes or Austin, I would also raise questions about the analogy between games and the legal system. You have to obey the law whereas it’s optional whether you want to play a game. You can assume that people who want to play chess or baseball will try to follow the rules: that’s what it means to play chess or baseball rather than some other game. But it’s not obvious that you can make the same assumption about how people regard legal rules.

Our Discussion of Obligation

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. They consult the rules to know what to do in order to play which is different from using them in order to predict what will happen.

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.

Lola thought that Hart’s analogy works better with recreational games rather than professional sports. Someone who wants a chess game will want to follow the rules of chess. By contrast, a professional athlete might well just be interested in getting paid and so use the rules in order to predict the best course of action to take in order to achieve that aim.

I think that’s a good point and it matches up nicely with something Cathy and Soo Bin said at the end. They said there is a big difference between games and the law, namely, people voluntarily play games but they don’t voluntarily enter society. Legal rules are mandatory in a way that the rules of a game are not. You can’t play chess without following the rules of chess. So if you want to play chess, you’re going to take the rules as telling you what to do. It isn’t obvious that the members of a society have to take a similar attitude towards the society’s rules.

Last Words

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.

Main points

These are the main points that you should know from today’s class.

1. The parts of the law that do not fit the command theory, especially enabling or power conferring rules.
2. Why Austin and Holmes seem 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.