Hart, The Concept of Law

By
Prof. Dr. Muhammad Munir,
IIUI
Hart:
(18 July 1907- 19 December 1992)
Hart‟s methodology in the book

Preface: Notwithstanding its concern with

analysis the book may also be regarded as
an essay in descriptive sociology; for the
suggestion that inquiries into the
meanings of words merely throw light on
words is false.
Hart: methodology

• “But I have also had a pedagogic aim: I

hope that this arrangement may
discourage the belief that a book on legal
theory is primarily a book from which one
learns what other books contain.”
Title of the book: the concept of
law
• There are different concepts of law in
different legal traditions, or that one
analysis might not be appropriate for all
legal systems.
• His analysis is presented as an example of
one size fitting all
• He never discussed comparative concepts
of law
John Austin (1790-1859)
The command theory of Austin

• Law is the command of the sovereign

backed by sanctions
• Sovereign is a person or group of persons
whose commands are habitually obeyed
by the bulk of the population and who
does not obey anyone else
Elements of command

• 1. a wish
• 2. expression of wish,
• 3. sanction,
• 4. generality,
• 5. emanation from a sovereign
Command theory

• Excluded everything:
• (1). that was not deliberately laid down:
• E.g. custom, Int‟l law, Constitutional law
• 2. particular commands,
• 3. all laws that were laid down by
someone other than the sovereign, e.g.
divine law
Criticism or over criticism?
• “In this and the next two chapters we
shall state and criticize a position which is,
in substance, the same as Austin‟s theory
but probably diverges from it as certain
points …”
• “So we have not hesitated where Austin‟s
meaning is doubtful or where his views
seem inconsistent to ignore this and to
state a clear and consistent position.”
Criticism or over criticism?
• “Moreover, where Austin merely gives
hints as to ways in which criticisms might
be met, we have developed these … in
order to secure that the doctrine we shall
consider and criticize is stated in its
strongest form.”
• Thus, Hart is not criticizing CT as such.
• He is criticizing things that are stated by
Hart himself not by Austin
Hart‟s criticism on command
theory
• Many modes of expressions in social life:
• Imperative mood: „go home!‟, „come
here!‟, „do not kill him!‟
• „pass the salt, please‟ is a request
• „do not kill me‟ is a plea,
• „do not move‟ is a warning
the gunman situation on the
larger scale
• „ hand over the money or I will shoot‟
• The clerk is ordered by the gunman
• the clerk may hand over the money but it
cannot be called „obedience‟.
• Because obedience suggests some right or
authority to give orders not present in this
case
Hart‟s criticism

• We can say: „orders backed by threats‟ or

„coercive orders‟ for Austin‟s theory
• Command: is used in military contexts,
carries with it very strong implications that
there is a relatively stable hierarchical
organization of men, such as an army or a
body of disciples in which the commander
occupies a position of preeminence
command

• To command is characteristically to
exercise authority over men, not power to
inflict harm, and though it may be
combined with threats of harm a
command is primarily an appeal not to
fear but to respect for authority
Changes to be made to the
orders backed by threats
• 1. generality,
• A standard form of statute is general &
applicable to all
• Legislation is different and ordering people
is different
Changes to be made…
• 2. orders be backed by „standing
orders‟:
• Continuity of orders
• Durability and lasting character,
• An order is valid as long as it is not
withdrawn
• 3. there shall be habit of obedience
• 4. sovereign
Hart‟s criticism

• The general orders backed by threats

given by one generally obeyed plainly
approximates to a penal statute
• Sovereign: is supreme internally &
independent externally
Ch III: The Variety of Laws

• Hart: According to Austin all laws are

general commands backed by threats
• This is wrong, because
• There are other variety of laws, e.g.
• 1.power conferring rules of
contracts, marriages & wills,
Ch III: The Variety of Laws

• 2. rules of courts,
• 3. subordinate legislation, &
• 4. rules of legislation
• These are not general orders backed by
threats
• The Command Theory (CT) cannot explain
these
Objections

• There are three types of objections:

• 1. about the content of law;
• 2. the mode of its origin;
• 3. about the range of its application
Hart‟s objections
• 1. content of laws:
• There are other variety of laws, such as
law of contract, wills, & marriages that are
not orders backed by threats
• These laws do not impose duties or
obligations
• They confer powers to create legal
obligations
Hart‟s objections

• No one has forced us to make a will

• We make it under a specified procedure
• We may make it or not make it
• Austin: if we make it we have to follow
certain rules or our action will be a nullity
• Hart: it‟s a nullity but not a breach of or
violation of an obligation
Hart‟s objections: rules of courts

• Laws about the appointment of judges,

their jurisdiction, qualification, tenure
are behind the operation of a law court
• These are not orders backed by threats
• If a county court exceeds its jurisdiction,
its decision will be set aside on appeal
Hart‟s objections

• Subordinate legislation is not order

backed by threats
• If powers are exceeded it will be a nullity
only
• Rules of legislation are not orders
backed by threats
What is sanction?
• Austin: nullity is a sanction
• Hart: nullity is NOT a sanction;
• Hart: It‟s mere disappointment
• Both differ on what constitute sanction
• For Hart: sanction seems some sort of
physical chastisement
• For Austin: sanction is very wide &
includes nullity of an action
2. The range of application

• Law has a self-binding character;

• It binds its creators as well
• Two capacities of a legislator:
• Public & Private
Range of application

• General orders backed by threats

should be replaced by legislation
• A legislator is bound like a promiser
• He creates the obligation & he is
bound by it
3. Mode of Origin
• Hart: certain customs are laws
• Austin has excluded custom from his
definition
• Austin: custom is law if accepted by the
judge but it is not law before it
• Is the judge a sovereign as he legislates?
• He has the tacit command of the
sovereign
Hart on Custom

• “Why if statutes made in certain

defined ways are law before they are
applied by the courts in particular
cases, should not customs of certain
defined kinds also be so?
•
Hart on custom

• Why should it not be true that, just

as the courts recognize as binding the
general principle that what the
legislature enacts is law, they also
recognize as binding another
general principle: that customs
of certain defined sorts are law?
Hart on custom

• What absurdity is there in the contention

that, when particular cases arise, courts
apply custom, as they apply statute, as
something which is already law and
because it is law”?
Hart on Custom

• Hart, thus considers custom and

statute as equals
• Raises custom to the status of statute
• Considers every custom as law before
a judge declares it so
Objections

• Which one is older?

• Sovereign or custom?
 end

• thank you
• Q&A