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.
Here are four claims that Austin makes.
Austin has difficulty accommodating some central cases on each point.
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.
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 set out to do.
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.
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)
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.
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 asserts that they are shared by both moral and legal rules (Hart [1961] 1994, 86–87).
According to Austin, obligatory rules are backed by a threat of sanctions, no matter how feeble, and Holmes believes something similar (Austin [1832] 1995, 22–23; 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?
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.
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.
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.
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.↩︎