Austin’s theory of law was very simple, perhaps even simplistic. He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns.
Las week we continued with Hart's analysis on Austin's command model of the law.
Hart's criticisms.
"there
are important classes of law where this analogy with orders backed by threats
altogether fails."
CoL 27
Hart’s first criticism is that Austin's model
focuses on duty conferring norms and ignores power conferring norms. In other
words, some laws are not orders to do or not do something, but simply provide
individuals with facilities for accomplishing their desires. An example of the
latter would be laws describing how to make a will, or how to make contract, or
how to marry—these laws do not take the form of a command, and they don’t
imposes a duty on anybody to do anything—they merely say that if you observe
certain specified formalities your actions will have certain specified effects.
These types of laws—laws that confer a power on private individuals or public
institutions—are not adequately characterised as "orders backed by
threats". The command model simply can’t account for the variety of laws, and
that is the point that Hart is trying to make.
Hart also considers and rejects various
attempts that have been made to bring “power-conferring rules” within the
category of “orders backed by threats”. But Hart rejects all these attempts to
save the command model as distortions of what they really are.
Another problem with Austin’s model is that it
does not account for the fact that lawmakers are bound by the laws they make
(see p. 42-44)
1. unlike the orders of gunmen, laws typically
apply to those who enact them and not merely to others, and Austin’s model does
not seem able to account for this (see
p. 79)
2. in other words, there is nothing essentially “other-regarding” about
law, as there is with orders directed at others to do things under threats, for
law may perfectly well have self-binding force
3. nor does it seem satisfactory to account for
this by treating legislators as enacting laws in their official capacity but
being subject to them in their personal capacity
Austin's model does not explain the binding
legal force of customary norms. Austin argued that custom only becomes law when
it is first applied by the courts and thereby receives "legal
recognition". But Hart argues that customary norms are treated as law even
before they are applied—i.e. they are applied because they are law
rather than they become law because they are applied.
Hart also claims that Austin's model fails to
explain the durability of law in two respects
a. Austin's model fails to explain the continuity
of obedience though the transition from one sovereign to another.
b. Austin's model also fails to account for the
persistence of laws enacted long ago
How
[is] the first law made by a successor to the office of the legislator already
law before he personally had received habitual obedience?
How
can law made by an earlier legislator, long dead, still, be law for a society
that cannot be said to habitually obey him? CoL 62
“it is characteristic of a legal system…to
secure the uninterrupted continuity of law-making power” CoL 53-54.
“it
is characteristic of a legal system…to secure the uninterrupted continuity of
law-making power by rules which bridge the transition from one lawgiver to
another” CoL
53-54.
…
rules…which may in a sense be
timeless CoL 62
Hart also has problems with Austin's conception
of sovereignty in general. The Austinian model does not claim that the power of
the sovereign is unlimited, for there may be various limits on what the
sovereign may do imposed by popular opinion or even the sovereign’s own sense
of morality. What the Austinian model does claim, however, is that the
sovereign’s power is subject to no legal limits. But it is hard to
identify a sovereign whose power is not subject to some legal limits.
See CoL p. 70-71 for a summary of the
problems Hart sees in Austin’s conception of sovereignty.
Hart's theory: being obliged or having the
obligation
Hart first focuses on the normative quality of
rules. There is a difference between the acceptance of rules and habitual
obedience: the acceptance of rules entails both a desire to conform and the
expectation that deviations will evoke censure and pressure for conformity,
whereas with mere habits, aberrations do not generally provoke censure.
Hart also distinguishes "being obliged"
from "having an obligation". "Being obliged" means
being compelled to do or forbear doing a certain act from fear of punishment. "Having
an obligation" means being required to do or forbear doing something by an
authoritative set of norms.
Hart distinguishes between breaches of rules as
"signs" that punishment will occur and breaches of rules as
"signals" that punishment should occur: a) where a breach of a
rule is a sign that punishment will occur it is predictive; b) where breach of
a rule is a signal that punishment should occur the rule is normative.
Considering yourself as "having an
obligation" and seeing a breach of a rule as a "signal" that
punishment should occur rather than simply as a sign that punishment will
occur is only possible if you are looking at a legal system from the internal
perspective. So the internal perspective is an engaged or committed perspective
and this the perspective of the participants in a legal system.
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