Overview

According to Austin, laws are commands. 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 legislators as well as everyone else. But legislators cannot 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 set 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)

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: (a) having a legal obligation and (b) 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).

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] 1995, 22–23; Holmes 1897, 461). Sanctions are a form of social pressure. So what is 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?

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.