MICHAEL D. BAYLES t Florida Siate University HART’S LEGAL PHILOSOPHY An Examination i KLUWER ACADEMIC PUBLISHERS DORDRECHT / BOSTON / LONDONLibrary of Congress Cataloging-in-Publication Data Bayles, Michael D. mination / Michael D. hy Mbeary ; ¥, 179 RS aNd 11 . (Herbert Lionel Adolphus), 92-30371 ISBN 0-7923-1981-8 Published by Kluwer Academic Publishers, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. Kluwer Academic Publishers incorporates the publishing programmes of D. Reidel, Martinus Nijhoff, Dr W. Junk and MTP Press. Sold and distributed in the U.S.A. and Canada by Kluwer Academic Publishers, 101 Philip Drive, Norwell, MA 02061, U.S.A. In all other countries, sold and distributed by Kluwer Academic Publishers Group, P.O. Box 322, 3300 AH Dordrecht, The Netherlands. Printed on acid-free paper All Rights Reserved © 1992 Kluwer Academic Publishers No part of the material protected by this copyright notice may be reproduced or ized in any form or by any means, electronic or mechanical, including photocopying, recarding or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the NetherlandsTable of Contents EDITORIAL PREFACE PREFACE PROBLEMS AND DEFINITIONS Ll Problems 1.2 Definitions 1.3. Linguistic Analysis and Normativity A CRITIQUE OF AUSTIN 2.1 The Austinian Theory 2.2. Laws as Commands 2.3 Concept of a Sovereign ELEMENTS OF LAW 3.1 Obligation 3.2 Internal vs. External Viewpoints 3.3. Primary and Secondary Rules . THE NATURE OF RULES 41 Existence 4.2 Open Texture . MORALITY AND LEGALITY 5.1 Morality 5.2 Justice 5.3. Natural Law 5.4 Positivism RIGHTS 6.1 Concept 6.2 Justifications 101 101 110 116 122 141 141 1S1viii 7. HART VS. DWORKIN 7.1. Dworkin’s Criticisms of Hart 7.2. Judicial Discretion 73 Moral Rights and Evil Law 8. LEGISLATION OF MORALITY 8.1 Mill and the Wolfenden Report 8.2 Devlin’s Challenge 8.3 Legal Moralism 8.4 Defense of Antimoralism 9, MENTAL CONDITIONS OF CRIMINAL RESPONSIBILITY 9.1. Human Action 9.2 Mens Rea 9.3. Intention and Negligence 10. JUSTIFICATION OF PUNISHMENT 10.1 Conceptual Issues 10.2. The General Aim of Punishment 10.3. Mens Rea and Conviction 10.4 Sentences and Mens Rea BIBLIOGRAPHY Abbreviations Works by Hart Works Cited or About Hart INDEX 165 174 181 191 191 194 200 218 229 230 239 245 253 254 261 267 281 293 293 294 297 313EDITORIAL PREFACE During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students of more study it. ‘The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from both the Anglo-American and European traditions. Not only does it help make some of the best work available to an international audience, but it also encourages increased aware- ness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowned scholars. Legal philosophy should not be considered a narrowly circumscribed field. Insights into law and legal institutions can come from diverse disciplines on a wide range of topics, Among the relevant disciplines or perspectives contributing to legal philosophy, besides law and philosophy, are anthropol- ‘ogy. economics, political science, and sociology. Among the topics included in legal philosophy are theories of law; the concepts of law and legal institu- ‘tions; legal reasoning and adjudication; epistemological issues ofevidenceand procedure; law and justice, economics, politics, or morality; legal ethics; and theories of legal fields such as criminal law, contracts, and property. MANAGING EDITORSPREFACE Michael Bayles knew before his death that this book would be published. He left instructions for the final steps needed for publication. While Michael considered the manuscript to be in final form, he requested that his friend Professor Kenneth Henley read the manuscript for any substantive corrections that might be needed. Ken Henley generously did that and prepared the index as well. Iam sure Michael would want me to express his appreciation for Ken Henley's contribution to this manuscript. Camera-ready copy was to be prepared by the Department of Philosophy. Ms. Roxane Fletcher did the final copy editing of the manuscript and Ms. Margaret Vanos prepared the camera- ready copy for publication. Ms. Cathy Butler was responsible for the initial typing of the manuscript. Again I am sure that Michael would want me to express his thanks for their work on his manuscript. Chapter 10, Hart vs. Dworkin appeared in a slightly edited form in Law and Philosophy 10 (1991), 349-82. Alan MabeCHAPTER 1 PROBLEMS AND DEFINITIONS Philosophers of law traditionally asked questions of the form “What is X7’— “What is law?", “What isa corporation?", "What is a legal ight?" This form of philosophical problem stems from Plato, who took it to be asking for a real definition of the nature or essence of the entity in question. The question “What is X?" is ambiguous. It can ask for the purpose or cause or justification of institutions or practices as well as for definitions (EJP, 21). Long after this form of raising problems had been abandoned in most branches of philosophy, philosophers of law continued to use the old form and treat it as calling for a definition of the term. Professor H. L. A. Hart devotes much time and effort to identifying the problems that prompted philosophers of law to continue to ask such questions, considering the appropriateness of attempts to solve these problems by giving definitions, and elucidating other problems in the philosophy of law. In particular he maintains that (1) philosophical perplexities in law do not stem from the vagueness of legal terms; and (2) definitions of legal terms, at least of a traditional sort, are of no help in resolving these philosophical perplexities. Hence, (3) he proposes altemative methods for defining or elucidating legal terms and addressing other problems in the philosophy of law. His strictures on these points quickly gained such widespread acceptance that some legal Philosophers take them as uncontroversial principles of legal philosophy (Summers 1968, 1-21). Whether or not Hart's particular views are accepted, he has transformed Anglo-American legal philosophy during the last part of the twentieth century. (These two paragraphs are modified from Bayles 1971, 50.) 1.1 Problems Hart divides the problems of legal philosophy into three groups—those of definition and analysis, legal reasoning, and criticism of law (EJP, 89). However, most of his. writing involves a blend of two or more of these concems. His major work, The Concept of Law, addresses problems of both analysis and legal reasoning. His papers collected in the volume Punishment and Responsibility involve both analysis and criticism. His essays collected2 HART'S LEGAL PHILOSOPHY in Essays in Jurisprudence and Philosophy andin Essays on Bentham consider all three types of problems, Even his writings most concemed with criticism of law, for example, Law, Liberty, and Morality, involve substantial analysis. Indeed, Hart believes that analysis is essential to jurisprudential under- standing, although he does not think it the only important source for under- standing law (Hart 1957a, 955). L.L.1 Definition and analysis. Hart believes that philosophers have sought to settle three main problems by defining ‘law’: "How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rales?" (CL, 13). The first two of these questions relate to the same general problem, understanding the nature of legal cbliga- tion. A central feature of law is that it requires people to perform or abstain from specific actions. The conduct is not optional but in some sense obligatory. In penal law people are threatened with fine or imprisonment if they behave in certain ways. This situation resembles that of being faced by a gunman who threatens to shoot if one does not do as told, for example, open asafe. In such situations a person is obliged to do what she does. Hence, one might conclude that law obliges in a similar manner. But, Hart contends, careful consideration indicates that even in penal law the situation is not the same as the gunman situation (CL, 6-7). Consequently, the first question arises: How is legal obligation like and different from orders backed by threats? Recognizing differences between legal obligation and being threatened, Hart explains, one might seek the key to legal obligation in other areas. Moral tules likewise make some conduct obligatory. Both law and morals use the language of rights and duties, excuses and justifications. Further, law and morality prohibit much of the same conduct: murder and theft are contrary to law as well as morals. Hence, one might come to think that morality is the nature or essence of law. Yet Hart notes difficulties with this view too. Many Jaws concem matters about which people have no moral sentiments one way or another. If it is claimed that unjust laws are not laws at all, it is difficult if not impossible to explain the status of some rules enacted by legislatures and enforced by courts, Consequently, the second question arises: How is legal obligation like and different from moral obligation?PROBLEMS AND DEFINITIONS 3 Hart shows how an even more perplexing problem can arise. Whether one views law as analogous to orders backed by threats or to morality, one thinks of it, or a large part of it, as consisting of rules. There are difficulties and uncertainties conceming the concept of rules. Some legal philosophers have held that judges do not decide cases according to rules but according to their prejudices, dispositions, and views of the moment. Part of the basis for their claim is the obscurity of the concept of a person using or following arule. The obscurity of the concept of following a rule partly derives from obscurity about what a rule is, There are different kinds of rules: some prescribe behavior, others confer powers or establish conditions for engaging in certain kinds of activity such as making wills and contracts. The existence of these various types of rules might depend on different conditions. So the question arises: What does it mean to say a rule exists and to what extent is law a matier of rules? ‘This problem of the existence and importance of rules in law, Hart seems to suggest, is only part of a more general structural problem. Despite an area of dispute, the terms law, a law, and legal system are generally agreed to apply to large classes of phenomena. Because laws differ in their content and origin, it becomes difficult to determine any general principle that connects them into a structure or system. Thus, in seeking a definition of law, philosophers have often been seeking a coherent view of the structure of legal systems (EJP, 90-91), Whether or not laws are: rules will affect the structure one attributes to legal systems. ‘The term law, though perhaps the most important, is not the only one philosophers of law seek to define. Terms such as right, duty, corporation, action, and punishment are also much discussed. Various problems lie behind attempts to define these more specific legal terms. One point is clear, Hart believes, namely, that legal philosophers are not seeking dictionary definitions (CL, 2, 4-5). Most of those who ask questions like "What is a right?” are experts in law and know how to use the terms on appropriate occasions. Thus they are not.asking for dictionary definitions as beginning law students might. If legal philosophers are not seeking dictionary definitions and continue to ask questions of the form “What is X7', some explanation is needed for their doing 80. For two reasons Hart rejects vagueness as a source of philosophical perplexity about legal terms and the persistence of ‘What is X?" type questions (CL, 3-4), First, when ‘law’ is applied to international “law” or other4 HART'S LEGAL PHILOSOPHY anomalous cases and people have some qualms about its use, they know why they do. Most legal systems involve an organized system of sanctions and can compel persons to appear before courts, whereas in international law these features are lacking. Second, terms in ordinary language also have such vagueness. Wittgenstein. pointed out this feature of ordinary terms well in a passage that suggests one key element in Hart’s view: “Consider for example the proceedings that we call ‘games’. I mean board-games, card-games, ball-games, Olympic games, and so on. What is common to them all?—Don’t say: “There must be something common, or they would not be called "games"’—but look and see whether there is anything common to all—For if you look at them you will not see something that is common to all, but similarities, relationships, and a whole series of them at that" (Wittgenstein 1953, pt. 1 § 66; see CL, 234 n. 15), As common terms are vague and do not puzzle philosophers, Hart reasons, vagueness cannot be.a source of perplexity about legal terms. ‘Yet at times Hart suggests that this feature identified by Wittgenstein contributes to difficulties with legal terms. This feature is not vagueness per se but diversity of reference or intemal complexity (EJP, 22, 90-91). For example, ‘law’ applies to.so many different things that there does not seem to be any general principle involved in all of its uses. Moreover, laws differ greatly in their form and function. This point relates to the previously noted problem about the structure of legal systems. second and more troubling feature of legal terms Hart notes is that many of them "do not have the straightforward connection with counterparts in the world of fact which most ordinary words have and to which we appeal in our definition of ordinary words" (EJP, 23, see also Hart 1955c, 245-46; Hart 1957a, 960). The word ‘red’, for example, denotes a quality in the world, a quality that can be seen. Or, ‘envelope’ denotes a piece of gummed, folded Paper used to enclose a letter. One can perceive instances of redness or envelopes, but duties, rights, and corporations are not objects of the senses or capable of being directly defined by perceptible qualities, events, or processes. ‘These legal terms are not used "to stand for or describe anything” (EJP, 31; see.also Hart 1948a, 151). (The preceding three paragraphs are modified from Bayles 1971, 51.) ‘Thus, Hart concludes, legal philosophers do not face problems about how to use legal terms, for that they cando. Still they find some features of the use: of legal terms puzzling. They are like persons who can find their way aboutPROBLEMS AND DEFINITIONS 5 a town well enough, but when asked to give someone directions or to draw a map cannot easily doso(Hart 1957a, 964; CL, 13-14). Their puzzles resemble that of St. Augustine about time: “What, then, is time? If no one asks me, I know; if I want to explain it to someone who does ask me, I do not know" (Augustine 1960, bk. 2, chap. 14, 17; see Hart 1957a, 965; CL, 13). A legal philosopher's task consists in elucidating those legal concepts that puzzle even people who know how to use them. 1.1.2 Legal reasoning. The other types of problems that Hart finds in legal philosophy can be briefly indicated here. They are explicated in more detail where the issues are taken up in later chapters. One set of issues pertains 10 the difference, if any, between reasoning from statutes and from precedents. Statutes give the formulation of miles, and some people have thought that one can then proceed with deductive reasoning. As we will see, Hart rejects this view. With precedents, however, no formulation of a rule or point is given. A necessary condition for determining the mule of a precedent is that one could deduce the precedential decision from the rule plus statements of the facts in the case (EJP, 101). This is not a sufficient condition, for various rules could meet that test. Amore crucial problem pertains to the indeterminacy of rules and prece- dents, What Hart calls a formalist view maintains that statutes and precedents can provide determinate answers for all cases. American legal realists tended to deny that statutes and precedents usually, if ever, give definitive answers. For a variety of reasons, Hart does not believe that rules can provide deter- minate answers to every case (EJP, 63-64, 103, 274-75; CL, 120-26). How- ever, he also believes that the legal realists greatly exaggerated the extent of indeterminacy. Consequently, an account is needed of how rules can guide decision-making and the extent of such guidance. This must involve distin- guishing between hard and easy or clear cases. 1.1.3 Criticism of law, Questions of the criticism of law should be distin- guished from two others (LLM, 1-2). First, one can ask about the causal influence of morality on law and vice versa. Second, one can ask whether the definition or concept of law must make some reference to morality. This question is really one for analysis. One set of problems concerns the basis for evaluating law. ‘Traditional natural law theory claims that there are objective standards based on human6 HART'S LEGAL PHILOSOPHY nature for evaluating law (EJP, 111). Utilitarianism has been offered as an alternative basis, but there are questions about its adequacy for issues of justice (EJP, 116-18). In his later writing, Hart considers and rejects prevalent natural rights bases for evaluating law. He indicates that some new theory of rights is needed (EJP, 196, 221-22). Hart also distinguishes evaluating or criticizing the content of a legal system from determining whether there is an obligation to obey the law (EJP, 116). ‘The two issues are not completely distinct, because it is unlikely that an obligation exists to obey a bad or corrupt legal system. However, even if the laws of a legal system are generally good and just, Hart believes that a distinct type of argument is required to establish any general obligation to obey the law. Finally, in evaluating the content or laws of a legal system, one can distinguish (at least roughly) between substantive and procedural law (EJP, 114), Of course, evaluation of substantive law can vary in detail. For example, one issue to which Hart contributes substantially concerns whether the criminal law ought to be used to enforce morality. Another set of issues on which he has also written extensively is the justification of punishment, excuses, and criminal attempts, 1.2 Definitions 1.2.1 Traditional definitions. Throughout his career Hart argues that seeking to solve the problems of analysis by defining legal terms in the traditional way will not work. The traditional approach to definitions is by genus and difference. One locates Xs within a broader class. of Ys and then specifies how Xs differ from other Ys. One can then define Xs as Ys with certain additional characteristics. This mode of definition provides a synonymous expression that can be substituted for the defined term. It also provides a set of necessary and sufficient conditions for the use of the term. To take a common textbook example (that has been disputed), brothers belong to the class of siblings. Brothers differ from other siblings by being male. Hence, ‘brother’ can be defined as ‘male sibling’ and the latter expression can replace the former without Joss of meaning as in "My brother is twenty-four years old” and "My male sibling is twenty-four years old." Moreover, being a male and a sibling are each necessary and jointly sufficient conditions for X being a brother.PROBLEMS AND DEFINITIONS 7 ‘This approach, Hart contends, will not work fora variety of reasons, some of which are similar to those that explain the persistence of questions of the “What is X?' form. First, the value of the method depends on clearly under- standing the broad class within which a legal term falls (EJP, 32; CL, 14-15). Unfortunately, the class terms under which legal terms fall are not clearly understood and are as puzzling as the terms being defined. For example, ‘right" and ‘duty’ are legal relations, but the concept of legal relations is not clear. ‘Second, legal terms are not descriptive; they do notsimply stand for or describe things (EJP, 32; Hart 1948, 151-52). The connection between legal relations and facts is not direct, To define these legal terms as one might define ‘envelope’ would suggest that they describe as ordinary words do. Hence, the traditional approach not only fails to eliminate puzzles but misleads one into thinking these terms are: used to describe. ‘Obviously these objections do not necessarily bar definition by genus: and difference. Hart’s first point is not persuasive because the general class terms by which other terms are defined do not have to be puzzling. Hart only claims that the more plausible candidates that have been suggested for legal terms are puzzling. So one might hope todiscover aterm that is not puzzling. Moreover, one need not have a complete understanding of all those Ys that are not X before one: can understand what Xs are (Moles 1987, 57). Besides, as Hart recognizes, people know how to use the terms, and this might be sufficient understanding for their use in definitions. In any case, one might first explicate the general term. Hart’s second point is unpersuasive because not all descrip- tive terms directly apply to facts. Many scientific terms do not have the direct. correspondence with facts that ‘envelope’ has. At least a plausible case can be made for ‘gas’, ‘atom’, ‘virus’, and ‘gross domestic product’ being descrip- tive (although they are also "theory-laden"). Hart seems mistakenly to limit the descriptive or empirical to that which is observable, not recognizing that similar problems affect scientific descriptive terms (Horovitz 1972, 151-52, 156-57), Hart's third objection to definition by genus and difference is that it suggests that all members of the class denoted by the term possess some common feature (CL, 15). As already noted, Wittgenstein observed that things to which a term applies do not always have common features, only overlapping relationships and similarities (1.1.1). Hart agrees that no common features may be found. ‘This last point carries weight against definitions by necessary and sufficient conditions, at least as traditionally understood. Moreover, if no common8 HART’S LEGAL PHILOSOPHY features exist, then any modified definition by genus is also excluded because the features of the genus term must be common. Another less traditional but equally unworkable method of definition, according to Hart, is to translate whole sentences in which terms occur into other sentences not containing the puzzling term. One might attempt to translate ‘Amold made a contract with Betty’ into a set of statements as to ‘what Amold (and Betty) did-for example, made an offer, signed an agreement, and so on. But, Hart asserts, this method suggests that the meaning of the sentence is the same as that of some set of statements of fact. This suggestion is misleading because ‘Arnold made a contract with Betty’ does not describe any set of facts. The meaning of this sentence must be distinguished both from a statement of the facts that make it true and from a “statement of the legal consequences of it being true,” that is, those legal rights and obligations that follow from Arnold having entered into a valid contract with Betty such as his being legally bound to pay her for her services (EJP, 40). To attempt translations of such sentences is to misread their function, which is not descriptive. ‘This point does not add anything to the previous ones. It amounts to a reiteration of the claim that legal terms are not descriptive. Yet again, the same point could be made about theoretical descriptive terms. Statements about atoms and so forth cannot be reduced to any finite set of observation state- ments, What it indicates is Hart's antireductionism. He consistently holds that legal language cannot be reduced to nonlegal language (see Baker 1977, 26-43). 1.2.2 Inaugural analysis. In his inaugural address, "Definition and Theory in Jurisprudence,” Hart suggests an alternative type of “definition” or elucida- tion. This method involves two steps (EJP, 33; Hart 1957a, 961). First, one specifies the conditions under which a typical statement using the term is true. One states those conditions that make it true, for example, that Arnold made a contract with Betty, such as his having made or accepted an offer, signed an. agreement, and there being a legal system with a law assigning certain rights: and duties under these conditions. Second, one specifies the characteristic function this typical statement performs. Hart does not there explain how one determines the function of a statement, and no simple method is available. Elsewhere he suggests that the linguistic function of statements can be deter-PROBLEMS AND DEFINITIONS 9 mined by stating "in what sort of contexts and for what purposes” such statements are characteristically made (Hart 1957a, 961). Hart illustrates this method of analysis for ‘a legal right’: (1) A statement of the form "X has a right" is true if the following conditions are satisfied: {a) There is in existence a legal system. (b) Under a rule or rules of the system some other person Y is, in the events which have happened, obliged to do or abstain from some action. (c) This obligation is made by law dependent on the choice either of X orsome other person authorized to act on his behalf so thateither ¥ is bound to do or abstain from some action only if X (er some authorized person) so chooses or alternatively only until X (or such person) chooses otherwise. (2) A statement of the form "X has a right" is used to draw a conclusion of law in a particular case that falls under such rules (EJP, 35). The assertion that the function of statements about legal rights is "to draw a conclusion of law in a particular case“ can be interpreted in two ways (see also Horovitz 1972, 157-58; Martin 1987, 127-28). On the one hand, it might merely be a misleading way of saying that such statements are conclusions of law. At other places Hart explicitly calls such statements conclusions of law (EJP, 28-29; see also Hart 1958a, 90). It is reported that Hart thought ‘right’ is primarily used to make statements about law rather than within law, but this view is factually false (MacCormick 1977, 190-91). On the other hand, it might mean that such statements operate as premises in drawing conclusions. ‘These two interpretations are compatible with one another as the following chain of reasoning illustrates. 1. X transferred money to Y; Y agreed to repay X, and so on. 2. Under a rule of the legal system, Y is obligated torepay the money to X on acertain date unless X chooses otherwise. 3. Therefore, X has a right to be repaid. 4. The date due is past and ¥ has not repaid X. 5. Therefore X is entitled to a judgment against Y. In this reasoning, the statement that X has a right follows from 1 and 2 and the definition of ‘right’ and operates as a premise in reasoning to 5. However, Hart's form of elucidation or definition is open to several criticisms and he later admits that the second condition is wrong. First, it at least partially fails to avoid one of his objections to definition by genus and difference. He fails to avoid defining perplexing legal terms by using equally puzzling terms (Hacker 1969, 346). In his definition of ‘legal right’ there occur many terms as puzzling as it, such as ‘rule’, ‘obligation’, ‘authorized’, and10 HART’S LEGAL PHILOSOPHY ‘legal system’. Indeed, in one place Hart himself states that before one can understand a similar analysis of legal obligations the concept of a legal system must be analyzed (Hart 1958a, 87). Nonetheless, this objection is at least partially vitiated by his method of definition. In defining by genus and difference, almost the entire weight of the definition falls on the perplexing genus term, whereas in Hart’s method one at least has various sentences using the perplexing terms. Second, the approach takes sentences and not words as units of meaning. Hart suggests that one of Bentham’s contributions to philosophy, long ignored, was to note that sentences, not words, are the unit of meaning (EJP, 10; Hart 1962, 308). However, if words do not have meaning, then it is unclear how a string of meaningless words can have semantic meaning. It is the meaning of words plus syntactical rules that enable people to formulate new sentences with new meanings. More plausibly, Hart can be taken to be analyzing the meaning of the predicate ‘x has a right’ (Birmingham 1984, 793-96; see Laureta 1964, 675-76). In ‘x has aright’ ‘has’ does not operate as a two place relation as it does in "John has a book”. Thus, ‘right’ does not refer to a thing as “book" does. ‘Third, the analysis of the characteristic function of such statements rests on aconfusion between meaning and what Hart later calls “force” (EJP, 5). This confusion can be understood by considering another class of expressions Hart discusses (EJP, 94-95; Hart 1957a, 962; CL, 42-43). These other expressions are called “operative” by lawyers and "performatory" by philosophers. Ex- amples of such expressions are "I hereby bequeath" or “I promise". The utiering or writing of these expressions is not describing or stating that one is bequeathing or promising, it is the bequeathing or promising itself. In using these expressions one is performing the action, whereas uttering the expression “Tam seeing’ is not the seeing. Expressions can only be used to do things in this way if there are rules defining their use in appropriate circumstances to be the performance of the actions, for example, laws defining what it is to make a bequest. Hart seems to think of statements of the form “X has a right’ as similar to performative utterances. When a judge says "Cecil has a right” the judge is in effect establishing that Cecil has such aright. However, statements such as “I promise” are performative or constitute doings only in the first person present tense. Their meaning is the same for all persons and tenses, Similarly, such statements as well as those of the ‘X has a right’ form can occur as antecedentsPROBLEMS AND DEFINITIONS 11 in conditional statements, in negations, and so on. The meaning needs to be the same in all these contexts although the force varies. In part, Hart might have been misled by his emphasis on the meaning of terms like ‘right’ and ‘duty’ depending on their relation to rules. Performatory or operative acts are defined by rules; for example, the rules define what promising is. The rules of rights and duties are not similarly definitive of them. In Hart's definition of legal rights, truth conditions (b) and (c) carry the burden of explanation, namely, that rights have correlative duties whose performance is dependent on the choice of the right holder. Rules assigning rights primarily specify events that must have occurred for such duties to exist. They do not, however, define some type of action that occurs in using the terms in a particular way. For such reasons, in his later thought Hart abandons his contention about the function of typical statements containing puzzling legal terms being important for elucidating their meaning. In an article written about thirteen years after his inaugural lecture, he observes that there are different standpoints from which such statements can be viewed. One standpoint emphasizes the particular “point or purpose of making such statements". He further claims that “a distinction between the meaning of a statement and what is implied or intended by its assertion in different contexts is of considerable importance” in Jegal philosophy (EJP, 94), The force, depending as it does on the way a person intends her utterance to be taken, varies between speakers and contexts (EB, 136). In particular, Hart came to deny that being conclusions of law is part of the meaning of statements of the form ‘X has a right", because they have the same meaning whether or not pui forward as inferences (EJP, 5). Finally, he came to regret his denial that such statements are descriptive. He thinks that claim obscured the true one that an understanding of what it is for mules to require, prohibit, and permit conduct is needed for a full understanding of the statements in question. 1.2.3 Alternative analyses. Hart suggests other types of definitions or analyses of legal terms besides that in his inaugural lecture. Indeed, although he rarely indicates that he is doing so, many of his central views can best be understood as using one of these types of definition, or soit will be maintained. The failure to note these alternative types of definition can partially account for some complaints that Hart is unclear because he fails to provide definitions (see ‘Campbell 1988, 7, for such a complaint). Before his inaugural lecture, Hart12 HART’S LEGAL PHILOSOPHY introduced the idea of defeasible concepts or terms in opposition to traditional ones defined by necessary and sufficient conditions (Hart 1948a). Although he later declined to reprint that essay because “its main contentions no longer seem . . . defensible”, it is unclear that he rejects the analysis of defeasible concepts itself, as opposed to the claim that human action is the ascription of such a concept (PR, vi). However, the notion is fraught with difficulties too complicated reasonably to pursue in any detail here (see Baker 1977; Cherry 1974; and Howarth 1981). Defeasible concepts, Hart held in the carly paper, are such that even in the presence of conditions usually necessary and sufficient for their application, other conditions can defeat their proper application. Hart's example is of the existence of a valid contract. In English law, a valid contract usually exists if there are two parties, one of whom made an offer accepted by the other, there was a written memorandum, some consideration was given, and so on. However, even if these conditions exist, others (being made for an immoral purpose) can void the contract and yet others (one party having acted under duress) can make it voidable. Thus, no set of necessary and sufficient conditions exists for the correctness of statements applying the concept of valid contract, for example, “Dawn has a valid contract with Edgar”. Defeasible concepts, he wrote, “can only be explained with the aid of a list of exceptions or negative examples showing where the concept may not be applied or may only be applied in a weakened form" (Hart 1948a, 154). Formally, the form is: C if and only if di & dz & . . . da, unless ¢1 of €2 or .. . ‘en, where ‘d” stands for descriptive conditions and ‘e* for excuses or defenses. Although some philosophers since have happily used it, there are numerous ‘objections to the concept of defeasible terms. One could get the logical form of necessary and sufficient conditions by converting the unless clause into ‘and not ey and not ez and not... . en’. Hart was aware of this possibility; he considered such a point vacuous (Hart 1948a, 158 n. 4). To avoid this ‘transformation into necessary and sufficient conditions, one must distinguish positive and negative conditions, contending that the absence of a defense is not a positive condition. Such a distinction is quite suspect (Baker 1977, 33). Is absence of an insanity defense in criminal law a negative condition? Insanity is customarily the absence of knowledge of the nature and quality of an act or its wrongfulness, so absence of the defense seems to be a positive condition. Hart also seems to have thought that it was impossible to formulate all the exceptions in advance. In Hart's later thought, this point seems toPROBLEMS AND DEFINITIONS 13 develop into his view of the open texture of language; but since all terms have open texture, it cannot be a basis for a special class of defeasible terms. Finally, defenses do not defeat the application of a term, they only defeat a qualifica- tion. Defenses keep a contract from being valid, but an invalid or unenforce- able contract still exists. ‘Dawn's contract with Edgar is invalid’ properly applies ‘contract’. Closely related to defeasible terms are what can be called excluder terms. They are basically substitutes for the absence of defenses. Hart has claimed that ‘mens rea’, ‘voluntary’, and ‘intentionally’ simply indicate the absence of defenses (Hart 1948a, 159-61; EJP, 97). In this, he seems to have been followed by or to be following his colleague J. L. Austin (Austin 1970, 180). However, Hart's later view appears to provide positive conditions for these terms, One cannot a priori rule out the possibility of excluder terms, but in each case that must be the conclusion of an analysis. Another type of term can be called a cluster concept, although Hart uses the language of paradigms (see Putnam 1962). With paradigms, there are standard accepted instances of the application of terms with no definite limitations to extending their application. The task for the legal philosopher is to determine the features that constitute a standard case, although they are not each necessary for the application of a term. As Hart writes, "I am not sure that in the case of concepts so complex as that of a Jegal system we can pick out any characteristics, save the most obvious and uninteresting ones, and say they are necessary. . . . I think that all that can be found are a set of criteria of which a few are obviously necessary (e.g., there must be rules) but the rest form a subset of criteria of which everything called a legal system satisfies some but only standard or normal cases satisfy all” (Hart 1955c, 251-52). That is, besides perhaps a few necessary characteristics, there are other charac- teristics some, but not all of which, must be present for something to be a legal system. Various characteristics of this set can be present in different instances. Three other types of concepts or terms also fail to fit traditional definition by necessary and sufficient conditions (CL, 15-16, 234 n. 15). In the first, the same term is used in different ways by analogy, as a person's foot and the foot of a mountain. In a second, different phenomena stand in varying relations to one common element. For example, ‘healthy’ can apply to a person’s com- plexion and exercise. The first is a sign of health, the latter a cause of health. In another, the same term can be used for different parts of a complex activity. Hart's example is of ‘railway’ to apply to trains, lines, stations, and so on.14 HART’S LEGAL PHILOSOPHY Although Hart does not note it, ‘law’ and ‘legal’ also have such a use as for law books, schools, buildings, and so forth as well as legal systems, rules, proceedings, and so on. Finally, Hart distinguishes between the definition of a term and the criteria for its application (Hart 1957a, 968-69, 973; see also CL, 156). The definition of a term, especially as related to a rule, can remain the same while the criteria for its application vary from context to context. For example, ‘winning a game’ might be defined as “obtaining more points which count in acompetitive game’. This definition would serve for ping-pong, tennis, football, or basket ball. What constitutes obtaining points varies from game to game. A difficulty with this distinction is that Hart fails to provide any method for determining when characteristics are part of the definition of a term rather than criteria for its use. He may thus create as many problems as he solves. A definition presumably provides the meaning of aterm. The concept of varying criteria for the use of a term in different contexts seems most appropriate in law and games where explicit rules specify criteria for the use of aterm. When explicit rules do not exist, the distinction is less clear and useful. Even where there are explicit rules, the point is not intuitively obvious. ‘Valid contract’ might mean the same.in New York and Utah and there be different criteria for valid contracts in the two states. How, if at all, does this differ from merely saying that New York and Utah have different laws regarding the validity of contracts? Alternatively, one might claim that ‘valid contract’ is used in different senses in the two states. Some philosophers speak of there being the same concept with different conceptions, which suggests a difference of meaning. ‘This distinction raises a particular puzzle for Hart's inaugural method of elucidating legal terms. One cannot determine whether Hart's technique for elucidating legal terms pertains to their definitions or criteria of application or both. He offers it as a technique for replacing definitions of the traditional sort. But in explaining these terms, he claims, "we must refer to the relevant legal rules" (EJP, 39). These rules appear to be criteria for the use of terms and not definitions, so the method elucidates both definitions and criteria. Hart might only mean that reference must be made to the kinds of legal rules that arerelevant. And specifying the kinds of relevant rules might not be providing criteria. However, one does not know whether specifying kinds of relevant rules is providing criteria or defining characteristics, for one does not know what the difference between them is, and Hart does not explain.PROBLEMS AND DEFINITIONS 15 For the term law no method of definition seems adequate to Hart. In light of the complexity of the problems that have prompted legal philosophers to ask "Whatis law?" he concludes that "nothing concise enough to be recognized as a definition could provide a satisfactory answer to it". Hence, in The Concept of Law his purpose “is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be treated; it is to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena" (CL, 16-17). (This paragraph is modified from Bayles 1971, 53.) 1.3 Linguistic Analysis and Normativity Hart believes that a close analysis of legal terms is an important and autonomous branch or method of jurisprudence as distinct from historical or sociological approaches. As Hart indicates, his original thrust in jurisprudence was to apply to law the various techniques of linguistic philosophy developing in the late 1940s and early 1950s (EJP, 2-3). However, as he early em- phasized, this does not mean that knowledge from other disciplines is ir- relevant or unimportant (Hart 1957a, 959). Indeed, one early commentator thought that there were only occasional uses of linguistic analysis in The Concept of Law and that they contributed little (Blackshield 1962, 330; see also Milton 1984, 754). Thus, critique of Hart on the ground that linguistic, especially ordinary language, philosophy alone is insufficient for an adequate understanding of law badly misunderstands his views (Edgeworth 1986, makes such a mistake). Probably Hart's central claim is that law can only be understood by understanding the distinctive language and social activity of guiding conduct by rules, In his 1953 inaugural lecture, he claims that “the language involved in the enunciation and application of rules constitutes a special segment of human discourse with special features which lead to confusion if neglected” (EJP, 26). In 1967, he maintains that many legal concepts "can be explicated only when certain distinctive ways in which language functions in conjunction with practical rules have been understood” (EJP, 92). And in 1983, he reaffirms the belief of his inaugural lecture “that attention to the diverse and16 HART’S LEGAL PHILOSOPHY complex ways in which words work in conjunction with legal rules of different types" would help dispel many confusions in jurisprudence (EJP, 3). 1.3.1 Normativity, Law is normative. It contains norms or standards (as Hart usually calls them) for the guidance and evaluation of human conduct, Morality also provides norms for the guidance and evaluation of human conduct. Coercion also in some sense requires that one act in some way. The history of legal philosophy is replete with claims that ultimately legal and moral obligation and coercion all come to the same, or that at most only two of them can be distinguished, law reducing to one of the other two. On the ‘one hand, positivism stemming from the traditional egoistic interpretation of Hobbes reduced legal and moral obligation to coercion or the prudent avoidance of evil. Differences between the three depend on the degree or kind of evil to be avoided; later positivists separate morality from law and coercion. Unless there is a sanction, no rule imposes a legal obligation and no rule can be a “valid” law forbidding conduct. Intemational law is not a legal system, for it lacks significant sanctions and hence does not impose legal obligations. On the other hand, Aquinas and the natural law tradition distinguish sharply between moral obligation and coercion. Legal obligation becomes a form of moral obligation (at leaston one variant). Valid laws and legal obligations can exist without the threat of sanctions. Thus, although international law can be a legal system, grossly unjust rules cannot be laws. The opposition between these two traditions, positivism and natural law, constitutes a central theme in the history of legal philosophy, The point at issue between positivist and natural law philosophers is at least partly one of justification (King 1963, 283). Being normative, law (at least part of it) prescribes what people "ought" or “ought not" to do. And people want to know why they “ought” or “ought not" to act in certain ways, At one level this merely involves evaluating the advantages and disadvantages of a particular mule. At another level, the issue concerns the reason or ground of legal obligation. Is it merely that if one does not follow specific laws one will suffer undesired consequences? Or is it that laws prescribe conduct that is morally right and so ought morally to be followed? Is a legal system simply a coercive system, or is it one founded on morals? The nature of the ground, if any, determines the force of specific legal obligations. Here lies a key problem of legal philosophy—the normativity of law. Until one knows the ground or nature of legal obligation, one cannot distinguishPROBLEMS AND DEFINITIONS 17 between legal and moral obligation and coercion. As a legal system must impose some legal obligations, until one is able to decide whether legal obligations are imposed, one cannot decide what counts and does not count as alegal system. Until one understands the force of legal obligation, one cannot evaluate conflicts between legal and moral obligations. One does not even know what one is evaluating—conflicting moral obligations, or moral obliga- tions and prudential considerations, or moral obligations and something clsc. Legal systems and laws are normative guides for conduct and choices. Until one understands the nature of their normativity, one does not understand law. (The last three paragraphs are modified from Bayles 1971, 54-55.) Many of the problems of legal concepts that Hart identifies relate to the normative character of law (see Kramer 1988,428). One such problem is their lack of a straightforward connection to facts (EJP, 23). Terms like right and duty are obviously normative. Some special aspects of the legal use of terms like contract and property relate to their normative use in laws (see also Simpson 1964, 548). Hart often emphasizes that legal statements are not reducible to factual ones. In his earliest paper, Hart considers judicial judg- ments blends of law and fact, thereby indicating that legal statements are not merely factual (Hart 1948a, 151-52). In his inaugural address, he considers statements about rights not to be descriptive, although he inconsistently recommends analyzing them by their truth conditions. These points are what one might expect about normative language. Similar ones are often made about moral terms. A brief look at proposed theories of legal terms confirms this hypothesis (EJP, 23-25). First, the older theory of ‘right’ and ‘corporation’ as well as other terms treats them as standing for objective, super-sensible entities. This theory resembles G. E. Moore's ac- count of good as a nonnatural property (Moore 1903). Second, American legal tealists view legal terms (much as pragmatists and other naturalists view ethical terms) as shorthand for predictions or other factual statements. Finally, some legal scholars, most notably Scandinavian realists with a logical em- piricist bent, view legal terms as having no referent but exercising emotive or imaginary power. This theory resembles the emotivist theory of ethical terms so prevalent among logical empiricists, (This paragraph is modified from Bayles 1971, 57.)18 HART’S LEGAL PHILOSOPHY Hart attempts to provide an analysis of legal obligation distinct from both critical morality and coercion. Here it is important to distinguish between critical (or correct) morality and the positive or accepted morality of society (LLM, 17-18; 3.1.4), Although they differ in important respects, both law and positive morality generate obligations, but they do-not necessarily determine what one should do, everything considered. Central to Hart's view is the contention that in different ways, obligations of law and positive morality stem from social rules. The distinctive language associated with the use of rules to guide conduct points to the distinctive elements of legal obligation and helps indicate how such obligations are similar to yet different from those of critical morality and being coerced. Consequently, the analysis of terms used in enunciating and applying rules is central to jurisprudence and law. It indicates the distinctive normative character of law. 1.3.2 Descriptive sociology. In analyzing legal concepts, Hart believes he is doing more than dry verbal analysis, because he rejects the notion that inquiry into word meanings only clarifies words. Instead he accepts J. L. Austin’s claim that “when we examine what we should say when, what words we should use with what situations, we are looking again not merely at words (or ‘meanings’, whatever they may be) but also at the realities we use the words to talk about: we are using a sharpened awareness of words to sharpen our perception of, though not as the final arbiter of, the phenomena" (J. L. Austin 1970, 182). On the basis of this premise, Hart claims that The Concept of Law can also be viewed as “an essay in descriptive sociology” (CL, vii). An investigation of the various uses of words, a task frequently ignored, will help ‘one to distinguish between phenomena and better understand them. Hart asserts that even traditional definition by genus and differences "provides a code or formula translating the word into other well-understood terms and locates for us the kind of thing to which the word is used to refer, by indicating the features which it shares in common with a wider family of things and those which mark it off from others of that same family". Thus a traditional definition “instructs us . .. about the things to which words apply" (CL, 14). Hart thus claims that linguistic analysis of the sort outlined above will help to explain law. ‘This view is questionable at best. An adequate consideration of it would require 4 long excursus into the philosophy of language. Here we can only indicate the sort of criticism that might be brought against it. Hart's languagePROBLEMS AND DEFINITIONS 19 is misleading and his contention does not support the claim that The Concept of Law is also an essay in descriptive sociology. First, his use of ‘locates’ suggests that analysis of terms picks out their referents in the world, but the rest of his comment indicates that analysis shows the connections between different terms. Second, his conclusion that definitions instruct one about things is likewise misleading. They instruct about kinds of things or the meanings of terms. For example, an analysis of ‘professional’ indicates how professional roles differ from other occupations. It does not give information about how professionals live, their incomes, or their thoughts and attitudes. ‘Thus the sort of instruction provided by analysis of concepts differs from that provided by descriptive sociology. Descriptive sociology provides contingent facts about groups, institutions, and social life. Analysis of terms provides noncontingent features about these things. Analysis of concepts is an essential prerequisite to descriptive sociology and might call attention to features frequently ignored. But the formulation of a classificatory scheme is not descriptive sociology. Even if analysis of language can provide some increased awareness of factual matters, it cannot account for the descriptive sociology that is found in The Concept of Law. Most of it results from Hart’s perceptive awareness and description of factors involved in legal systems. Much of it is plausible speculative sociology that needs but does not receive empirical support (see: Cohen 1986, 102; Krygier 1982, 168; see also Cotterrell 1983, 695). Moreover, some of the discussions that appear to be sociological in character, such as that of primitive law, may not be descriptive sociology but largely conceptual analysis in empirical disguise (Sack 1985, 75). 1.3.3 Definitions of law. Taking the normativity of law as a central problem in legal philosophy helps to explain the nature of perplexities about the term Jaw and the role of definitions of it. Definitions of ‘law’ can perform at least three functions in legal philosophy. First, they can make it easier to decide what sorts of systems should be classified as legal. In so doing they provide some guidance for borderline cases of legal systems and the validity of laws. If promulgation by a supreme legislative authority is the ground of legal obligation, then vague rules-can be laws. But if laws are mules for the guidance of people in daily life (CL, 38), then extremely vague rules cannot be laws. Second, by helping to resolve these problems of vagueness, definitions of ‘law* delimit the main subject matter of jurisprudence and legal philosophy. They20 HART’S LEGAL PHILOSOPHY thus provide the fundamental concept for organizing a systematic study of law (King 1963; Moles 1987, 27). Third, definitions of ‘law’ provide shorthand devices for summarizing theories about law and legal obligation. Many proposed definitions have included direct or indirect references to either moral obligation (natural law) or coercion (positivism). They have, in part, been attempts to include a ground of legal obligation as part of the definition of ‘law’. One must not, however, expect too much from a definition of ‘law’. There will be borderline cases of law on any definition. A definition cannot provide the full explication of a theory, although in presenting theories it is often useful to start with definitions and then elaborate in ever more detail. Nor will a definition systematize the philosophy of law so that the rest is simply a matter of working out details. Many difficult problems remain after one has a definition, and one can proceed to many problems without a definition. But until the fundamental problem of the normative character of law has been faced and resolved, one cannot fruitfully proceed to many other problems. In his concern with the use of language in connection with rules, Hart has implicitly if not explicitly made the normative nature of law central to his analytical jurisprudence. Many of his most telling criticisms of alternative theories, as will be considered in the next chapter, are of their inadequacy to account for the normative nature of law. (The last two paragraphs are modified from Bayles 1971, 56.)CHAPTER 2 ACRITIQUE OF AUSTIN Since at least the middle of the nineteenth century one of the most significant theories of analytical jurisprudence has been legal positivism. During the late eighteenth and early nineteenth centuries the work of Jeremy Bentham and John Austin developed the positivist analysis of law as well as a utilitarian normative jurisprudence or theory of legislation. In response to criticisms, during the twentieth century some philosophers of law developed and modified the positivist theory. Notable among modem proponents of a variety of legal positivism is the famous German philosopher and lawyer Hans Kelsen (1961). Although a severe critic of carlier versions of the theory, Professor Hart has largely defended a revised version of legal positivism. In The Concept of Law he primarily develops his own theory on the basis of a penetrating analysis and criticism of Austin's version of legal positivism. Although this chapter is called “A Critique of Austin", Hart does not criticize the theory precisely as Austin formulated it but considers it as: modified where needed. “in order to secure that the doctrine . . . is stated in its strongest form" (CL, 18). Although we shall question whether Hart has indeed taken the doctrine in its strongest form, this chapter is not an exercise in historical criticism but an analysis of a general type of legal theory that we shall call the Austinian theory after the chief target of Hart’s attack. 2.1 The Austinian Theory Austin defined positive law, as distinguished from moral and divine law, as "a direct or circuitous command of a monarch or sovereign number in the character of political superior” (Austin 1954, 134). Commands are impera- tives and express a wish that another person act or forbear (Austin 1954, 13-14), They are distinguished from other expressions of wishes by involving sanctions. A sanction is an evil inflicted on a person for not complying with a wish addressed to her. Laws are general commands; that is, they oblige to classes of acts or forbearances (Austin 1954, 19). A superior is a person or group of persons who have the power to inflict an evil (Austin 1954, 24). A sovereign political superior is distinguished by the following two charac- teristics: (1) the bulk of society are in a habit of obeying the superior, and (2) 2122 HART'S LEGAL PHILOSOPHY ‘the superior is not in a habit of obeying any other human being (Austin 1954, 193-94). These two features mark the supremacy and independence of the source of laws in a society and establish it as one complete political system. ‘Thus, for Austin positive laws are a sovereign’s general commands. Hart develops this Austinian theory as a modification of a simple coercive situation. Laws impose obligations and require people to act in specific ways. ‘They can be stated in the imperative mood. Many varieties of imperatives are distinguished in everyday discourse—requests, warnings, pleas, commands, and so forth. A particularly stringent imperative often calls to mind a coercive situation-for example, a gunman pointing his gun at a bank teller and ordering. her to hand over the money. In this simple, clear case of coercion the teller is told what to do and forced to do it. Austin's theory, Hart suggests, bases the concept of law on an analogy to this gunman situation. It holds that laws are commands or orders backed by threats as in the gunman situation. Several modifications have to be made in the gunman situation to make it resemble laws. In making modifications, Hart warns, one must be careful to see that the notion of authority is not smuggled in by the use of terms like orders and commands, because that concept has been an obstacle to the analysis of law (CL, 19-20). Hart might better have objected that the Austinian theory is, at least in part, an attempt to analyze the concept of lawful authority and so must hot assume it. The modifications of the gunman situation to produce a plausible model of law are as follows (CL, 21-25). First, a gunman orders an individual person to perform a particular action but laws are characteristically general in two respects. Laws apply to classes of persons and prescribe classes of actions. Second, Austin writes of persons to whom the law is “addressed", which suggests an attempt to make the order or law known to these persons. However, Hart maintains, laws need not be promulgated or made known to be lawful, and even if they are promulgated can have the status of law before promulgation. Third, the population must generally believe disobedience will be followed by execution of the threat of punishment. In the gunman situation, the force of the threat holds only as long as the armed gunman is present. Because laws bind classes of people over a period of time, the belief that sanctions will ensue must continue for that time. Fourth, for a legal system to exist there must be a general habit of obedience to its laws. Not every general command must be habitually obeyed, but if most of them were disregardedA CRITIQUE OF AUSTIN 23 ‘one would certainly hesitate to say that they were laws or that a set of them formed a legal system. Fifth and finally, a legal system has the characteristics of independence and ‘supremacy. That is, the legal system of England is independent of that of France, so that laws in one are not necessarily laws in the other. Also, a legal system is the supreme source of commands for a society; there is no higher authority in a society that can overtum or overrule the orders of a legal system. To handle these features on the basis of the gunman model, it must be supposed ‘that the person or persons giving general commands are habitually obeyed and do not habitually obey some other person or group. Such a person is called the sovereign. By thus modifying the gunman situation Hart arrives at the Austinian view that “the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign” (CL, 25). The gunman situation involves the key elements of command or order and superiority or power of one person over another, A legal system merely involves these features "writ large". The key elements added in the large system are generality and sovereignty. Generality here includes not only classes of persons being commanded to classes of acts or forbearances, but the generalized belief in the threat of evil and general obedience. Being a general system, not everyone must know of each com- mand for the set of them to exist. The other chief feature of the large system is the ultimate supremacy of the sovereign, that the sovereign is superior to any other source of commands in society. 2.2 Laws as Commands After developing the Austinian view of law, Hart presents in his own way traditional and standard objections to the conception of laws as commands. First, the concept of command provides an inadequate account of all the various kinds of laws, in particular those which grant powers for making wills, contracts, and so on. Second, according to the Austinian theary the sovereign cannot be legally bound, order or command herself, but in many legal systems legislators are subject to the laws they make. Third, the Austinian theory of commands ignores a source of law important in some systems. Commands or orders require a person or persons who issue them, so the theory focuses on a legislature or sovereign as the source of law; but in common-law systems24 HART’S LEGAL PHILOSOPHY custom is often an important source of law. Hence, the Austinian theory of laws as commands unduly restricts the content, range, and origin of laws. 2.2.1 Content, Hart argues that there exists a broad class of legal rules that differs in function and kind from orders backed by threats. Orders and laws on the Austinian theory primarily impose duties with the threat of a sanction (evil) if one fails to comply, but many laws do not have sanctions. They provide facilities for a person to realize her desires by conferring powers to create structures of rights and duties (CL, 27; see also CL, 28, 40, 48, 94 (rights and duties). For example, a law requiring two witnesses to a will does not carry a sanction; it merely prescribes that if one fails to have two witnesses a will shall not be legally recognized. Language indicates the difference be- tween such laws and criminal laws, which seem closest to the Austinian theory. Failure to comply with a criminal law is a breach, violation, or offense. Failure to have two witnesses to a will is not a violation or breach; rather, it makes a will invalid, a nullity, or have no force or effect. Laws that confer powers, Hart asserts, are themselves diverse and not all of one kind (CL, 28). They can be distinguished by the type of power conferred and their particular subject. Some laws, like the one about wills, primarily concem private individuals and confer private powers, whereas others concen public positions and confer public powers. Whether the powers conferred are private or public, some laws prescribe the capacities or qualifications for a person having a power—that she be adult and sane, while others prescribe the manner in which such power may be exercised—that contracts be written, legislation passed by both houses, and so forth. Still others limit or specify the content or character of those powers, such as those limiting the duration of oral contracts and voiding contracts contrary to public policy. Han indicates that laws conferring public powers are least amenable to the Austinian analysis (CL, 29-31). Such laws regulate courts and legislatures. ‘The purpose of laws conceming, say, the jurisdiction of courts, is net to command judges but to define the conditions and limits in which their decisions are valid. Unlike an individual's violation of a criminal law, acourt’s decision on a matter outside its jurisdiction stands as valid law until it is quashed or set aside by a higher court. In such cases it would be add to say that judges obeyed or disobeyed the law. With legislatures the situationis even more different from what the Austinian theory suggests. If the law requires that a bill pass a legislature by a majority vote before it becomes law, oneACRITIQUE OF AUSTIN 25 cannot say that those legislators voting for a particular bill that passed have obeyed the law, while those voting against it have disobeyed the law. The same is trve in reverse if the bill fails to obtain a majority. However, this last point is not telling, because a defender of laws as commands would probably not say sucha thing, Rather, she would say that the condition of a majority vote is part of the antecedent of a rule ordering someone to declare a bill as having been passed by the legislature. Nonetheless, as we discuss below, Hart criticizes this general defense. Despite the differences between power-conferring mules and mandatory or duty-imposing rules, Hart claims that there are similarities and relations between them. First, both types of rules are similar in that they “constitute standards by which particular actions may be thus critically appraised” (CL, 32). ‘The making of wills can be judged as correct or incorrect in accordance with power-conferring rules just as other actions can be judged as right or wrong in accordance with criminal laws. Second, power-conferring rules are related to duty-imposing rules in that they confer power tocreate duties. Laws conferring power on judges enable them to.impose duties on persons appearing. before them. Defenders of the Austinian analysis have, according to Hart, made two different suggestions for handling these difficulties and retaining the main elements of their view. One approach is to revise or extend the concept of sanction to include nullity and invalidity as sanctions. The second is to eliminate power-conferring laws as complete rules and make them parts of duty-imposing rules. By the first approach the sanction for not following a law requiring two witnesses to a will is the invalidity of the will; one’s desires will not be carried out. Of course sometimes the sanction might be only a slight inconvenience and not an evil. Hart’s major objection to this first approach is that sanctions stand in a different relation to duty-imposing rules from that in which invalidity stands to power-conferring rules. In duty-imposing rules the prescribed or prohibited conduct can be distinguished from the sanction applied for nonconformity. Thus even though it might not be a legal rule, one can conceive of a rule prohibiting conduct without any sanction at all (CL, 34). But power-conferring rules cannot have: their “sanction” of invalidity taken away and still be intelligible even as nonlegal rules. Moreover, the concepts of violation of a duty (illegality) and violation of a power-conferring rule are distinct and need not go together. One can have the power to do something but a duty not to do26 HART’S LEGAL PHILOSOPHY it. For example, it can be illegal to sell stolen goods, but if this is done in some circumstances the sale may be legally valid (EB, 241). Contrarily, failure to have two witnesses to a will is not illegal, one does not violate a duty, but the will is invalid. The second defense of the Austinian analysis that Hart considers claims that power-conferring rules are really fragments of duty-imposing rules. Rules specifying the powers of a person are part of the antecedent of a conditional rule specifying when sanctions are tobe applied. This defense divides into an extreme and moderate thesis. According to the extreme thesis all legal rules are rules applying to officials and specifying the conditions under which they should impose sanctions. Thus procedural and jurisdictional rules in criminal law form part of an antecedent clause in a rule specifying when judges should sentence or fine private individuals. The moderate thesis does not analyze laws as applying to officials, but it does recast all power-conferring rules as antecedents of rules imposing duties (on private citizens). In both views a procedural rule is part of the antecedent of many different duty-imposing rules. One advantage of this general approach, Hart asserts, is that it makes clear why there may be no sanction applied to a judge who does not follow proper procedure—there is no rule specifying that some other official apply asanction in such a situation (CL, 36). Hart objects that this reconstruction of legal niles obscures and distorts the primary function of laws (CL, 38-40). Laws, even duty-imposing laws, he declares, primarily function to provide standards that average persons can understand and apply themselves. ‘The police function or sanction is secon- dary to this guiding function. These reconstructions make law appear to be primarily a matter of applying sanctions. Thus Hart maintains that the central feature of laws is how they function to guide and direct human behavior without engaging courts. Courts and sanctions come into play only when laws have failed in their primary function of guiding conduct at the private level. In conclusion, Hart claims, “Such power-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be?" (CL, 41). Thus the Austinian theory inadequately explains many of the mules of a legal system. 2.2.2 Power-conferring rules. Hart's distinction between duty-imposing and power-conferring rules must be examined with great care and in considerableACRITIQUE OF AUSTIN 27 detail. For in a note he writes, "The argument of this book is that the difference: between rules which impose obligations, or duties, and rules which confer powers, is of crucial importance in jurisprudence. Law can best be understood as a union of these two types of rule" (CL, 237 n. 26). Indeed, as the rest of this chapter will show, Hart believes that the defects of the Austinian theory all require power-conferring rules for their remedy. “A legal system," he writes earlier in criticism of Austin, “is a system of rules within rales" (Hart 1954a, xii), Power-conferring rules are those within which duty-imposing rules exist. To claim, as Hart does, that both duty-imposing and power-conferring rules constitute standards for appraising actions can be misleading. The concept of standards in law has a different and generally accepted use. Hart himself distinguishes between standards, such as due care, and rules (CL, 127, 130). Philosophers have distinguished between two different types of evaluation (Taylor 1961, chap. 1; see also Morris 1961, 1455-57; Bayles 1978, 42; Bayles 1989, 25-26). Some evaluations admit of degrees and can be used to establish rankings. These evaluations are typically expressed in terms of good or bad. Forexample, apples are evaluated as good or bad, better or worse. Apples can fulfill the criteria of a good apple to different degrees. Other evaluations do not admit of degrees of fulfillment and are typically expressed in terms of night. or wrong, correct or incorrect. Something either meets these criteria of evaluation or not, it is not a matter of degree. Grounds for evaluations of the first kind can be called standards and those of the second kind rules. Legal tules, both power-conferring and duty-imposing, are rules as thus described, ‘When they apply the conduct of persons is judged either right or wrong, correct or incorrect. Conduct can be evaluated as incorrect if one fails to have two witnesses for a will just as it can if one robs another. In both cases a person fails to comply with a rule. Itis useful to present the logical form of power-conferring and duty-impos- ing rules. The form of a usual power-conferring rule can perhaps be put as follows: Persons P, with qualifications Q, may (can) in conditions C, perform acts A, in the manner M, concerning subjects S, with effects E, for purposes or goals G. ‘The variables illustrate various ways in which power-conferring rules might be classified (see Tapper 1973, 268-77). Duty-imposing rules can perhaps be put in the following logical form:28 HART’S LEGAL PHILOSOPHY Persons P, with characteristics Q, in conditions C, must (not) perform actions A, in manner M, subject to imposition of some sanction E for violation. Not all rules have all these features, but they can have them. Moreover, often some of the conditions are specified in separate rules. Thus, for example, criminal laws rarely specify characteristics of persons, but they usually have a separate rule excepting infants from criminal liability. Similarly, the qualifications for having the powers of a member of Congress are specified in Separate conditions, Professor Neil MacCormick has suggested that duty-imposing rules can provide powers (MacCormick 1981, 71-73; see also Lucas 1977, 88-89). For example, he suggests that a rule imposing a duty on appropriate people to perform a designated act when they have uttered words of promise on appropriate occasions can confer powers. However, as he later recognizes, one can formulate this statement as two rules—one conferring power to make promises, another imposing an obligation to keep them (MacCormick 1981, 77). Atone level, MacCormick is correct. One can conflate a duty-imposing rule and a power-conferring one into one statement. However, the functions are separate. MacCormick’s promise-keeping rule has done precisely what Hart warned against, namely, bringing power-conferring rules in as antece- dents of duty-imposing ones (both Gibbs 1968, 441; and Colvin 1978, 199; fail to heed this warning). It seems plausible in the case of a rule about promises, because exercise of the promise-making power creates an obligation ‘on the promisor. However, the effect of exercising a power need not be the creation of a duty nor need it affect the person exercising the power. It might be the creation of a power in another, for example, delegating power, or imposing a duty on another, for example, a judge ordering payment of child support. ‘One must be clear about Hart's claim that duty-imposing and power-con- ferring rules differ logically in that duty-imposing rules can be intelligibly conceived without sanctions but power-conferring rules cannot be conceived without invalidity. He does not claim that duty-imposing rules can necessarily be conceived as /egal rules without sanctions whereas power-conferring ones cannot be conceived without invalidity, for his claim also applies to nonlegal rules such as those about promises. Thus, one cannot appropriately object that invalidity is only contingently related to power-conferring rules because a judge must determine invalidity (Mullock 1974, 439 (makes this abjection)). ‘What Hart claims is that the prescription of conduct in a duty-imposing ruleA CRITIQUE OF AUSTIN 29 is logically distinct from the sanction so that there can intelligibly be a rule prescribing conduct but not implying a penalty or sanction for nonconformity (see Gibbs 1968, 434 (two rules imposing duty and commanding sanction)). By contrast, the nullity of power-conferring rules is logically connected with the conduct required for a power to be exercised. Failure to comply with a power-conferting rule does imply invalidity (although courts might make mistakes). These rules "define" how certain things are to be done, for example, the making of wills (CL, 27, 29). Hart thus takes power-conferring rules as constitutive or definitive of the actions they govern. Hart's claim is mistaken because power-conferring rules are not always definitive of the action or thing. Even if one failed to have two required witnesses to a will, one made a will, though not a valid will that will beenforced by acourt. Moreover, some duty-imposing rules define types of actions, for example, ‘roughing the passer’ in football (Tapper 1973, 257; Weissbourd and Mertz 1985, 635; see also Bowie 1974, 146-47). Hart might reply that although power-conferring rules are: not definitive of the action—making a will or contract—they are definitive of "valid" wills and contracts. Even granting the point about ‘valid’, it still does not apply to procedural rules, which Hart includes in the class of power-conferting rules. Not all procedural rules are constitutive or definitive of the validity of activities they govern, One can imagine a system in which two witnesses are required for a marriage ceremony, but instead of the marriage being null if there are less than two witnesses, the couple must pay an additional fee for each absent witness. It might be said that the rule about witnesses is really a duty-imposing one, but a fee for the absence of a witness does not have the same status as a fine (see CL, 39), Acouple with one witness has not committed an offense or disobeyed the law. Even more significantly, one could imagine a system in which no fee was charged for not having two witnesses but the statute stated "There should be two witnesses to a mariage," and clerks or judges admonished couples for having Jess than two or perhaps did nothing (Tapper 1973, 258 n. 38). In short, one can conceive of at least some power-conferring rules distinct from a condition of nullity or invalidity. Hart's logical distinction between the two types of rules breaks down, for he has mistakenly treated all procedural rules as constitutive or definitive but they need not be so. They can be and often are in legal systems. Legislatures and courts have not the time nor purpose to bother with many procedural rules that are not defining, but this is a practical matter (see Zink 1962, 175-82 (distinguishing constitutive from30 HART'S LEGAL PHILOSOPHY directive niles); see also Cohen 1962, 396-99 (rules for capacities not power- conferring)). The legal doctrine of harmless error exemplifies the point. Sometimes decisions are not overturned even though there has been a proce- dural violation, because the mistake is not thought to affect the outcome materially. ‘What then is the difference between duty-imposing and power-conferring rules? MacCormick suggests that power-conferring rules confer power only when one acts with the actual or imputed intention to invoke them (Mac- Cormick 1981, 74; MacCormick 1978, 283). However, the notion of imputed intention simply amounts to one having fulfilled the conditions, especially the procedures, in the rule. Instead, two features distinguish power-conferring rules from duty-imposing ones—their modal character and their effect. Power-conferring rules do not require actions; they indicate that an act may ‘be performed. Duty-imposing rules require conduct; they indicate that an act must be performed. Bringing oneself under the conditions or antecedent of a duty-imposing rule makes conduct obligatory; bringing oneself under the conditions of a power-conferring rule docs not. However, sometimes one exercises a power bringing oneself under a duty-imposing rule, for example, making a promise or contract. ‘This modal feature does not distinguish powers from privileges or liberties, which are also permissive. The exercise of a liberty, however, does not have a normative effect. Performing an act in conformity to a power-conferring mule changes normative relations concerning something other than the act of exercising the power. Thus, making a promise changes one's normative relation concerning another act, namely, the act one promised to do. Conform- ing to a duty-imposing rule can change normative relations, but only those directly related to the act, for example, extinguishing a duty to repay a debt. MacComnick correctly notes that the crucial aspect of legal power-conferring tules is that they enable one to make decisions legally enforceable (Mac- Cormick 1981, 84). Liberties do not have this effect. The same applies in other normative systems. Compliance with religious rules of marriage gives a marriage religious effect. These distinctions provide clues to understanding Hart’s comment that power-conferring rules are facilitative whereas duty-imposing ones are man- datory. At least two objections have been made to this distinction. First, a duty-imposing rule might provide a facility-for example, a vagrant might violate a criminal law so as to secure the warmth of a jail (MacCormick 1981,A CRITIQUE OF AUSTIN 31 75). Second, a mule requiring drivers to have licenses might be considered as providing a facility to enable one to drive and a power-conferring rule requiring wills to be written as prohibiting unwritten wills (Tapper 1973, 260). ‘These last counterexamples seem plausible because aspects of duty-impos- ing and power-conferring mules can be desirable or undesirable. Having a driver’s license exempts one from a prohibition; itis a privilege and normally desirable. However, the license does not make sense without the prior duty- imposing rule. Moreover, it does not enable the driver to change any norma- tive relations, although the issuance of the license by an official under a power-conferring rule does change legal relations. Requiring wills to be in writing imposes a disability on the exercise of a power. Disabilities are normally undesirable for persons having the power. The normal desirability or undesirability from the standpoint of a possessor probably accounts for the tendency prior to Hohfeld (1946) to classify privileges and powers as rights and disabilities as duties. The vagrant’s situation is anomalous. Normally, incarceration is not thought beneficial. If one is to consider the desirability of conditions of rules, ‘one must base it on the usual or normal attitude. Moreover, the vagrant does ot benefit directly from violation of the duty-imposing rule, but from an official exercising a power (not intended for the vagrant's benefit). Further- more, as Hart correctly notes, there need not be-a sanction prescribed, and even when there is, it need not be imposed. In fact, most people who violate criminal laws do not receive sanctions, If one emphasizes the desirability of conditions, one can seriously question whether Hart has not drawn the distinction between duty-imposing and power- conferring rules in the wrong place. To a large extent, Hart has followed Hohfeld in dividing legal relations into those based on powers and those based on rights and duties (Hohfeld 1946; Paton 1964, 254-58; but see Tapper 1973 (on similarities and differences between Hart and Hohfeld)). A better division might be between duty- and disability-imposing rules on the one hand, and right-, liberty-, and power-conferring rules on the other. Disability- and duty-imposing rules restrict actions, while right-, liberty-, and power-confer- ting rules are permissive. Duty-imposing rules constrain one from performing or not performing an action. Likewise, disability-imposing mules constrain one from performing certain actions, for example, a judge from trying cases beyond her court's jurisdiction. Moreover, Hart himself has often analyzed32 HART'S LEGAL PHILOSOPHY most rights as liberties or powers (Hart 1955a; EB, 182-89; see 6.1.3). Atone point, he even groups powers and claim rights together (EJP, 35 n. 15). To be understood, Hart claims, rules must be looked at from the point of view of those who use them. Drawing the facilitative/mandatory distinction as here indicated may better fit the way they are “used to control, to guide, and to plan life out of court" (CL, 39). Such an analysis would not save the Austinian theory from criticism. One might wish to eliminate right-conferring rules by analyzing them as merely correlatives of others’ duties, although that tack does not appear fruitful. However, as the vagrant counterexample shows, the desirability of various features is highly contingent. Moreover, in most if not all situations there are duty as well as power relations (Tapper 1973, 244). Consequently, the facilitative/mandatory analysis does not seem appropriate fora fundamental one. Rather, the logical distinctions based on the modal and effect features are fundamental. Hart wrongly conflates the logical and desirability distinctions. 2.2.3 Range. Hart's second criticism of the Austinian theory of laws as commands concems the range of application of laws. Orders are given to others, Thus, on the Austinian theory it appears that legislators could not be subject 10 the laws they make. Not so, according to the theory, if one distinguishes between different capacities in which a person can act. Acting ima capacity of legislator a person is not bound by the laws, but in her role as private citizen she is subject to them. For example, except for major crimes members of the United States Congress cannot be atrested while the legislature is in session; they are then acting in their capacity as legislators (U.S. Const. art. 1, sec. 6.1). When the legislature is not in session, legislators are subject to laws just as anyone else is. Further, members of Congress cannot be sued for slander for comments made during legislative sessions on the floor of the House or Senate. Elsewhere Hart criticizes this distinction between capacities or roles as presupposing power-conferring rules (see CL, 68-69). Atthis point he merely notes another approach to the problem of legislators being bound to obey the rules they make (CL, 42-43). This approach depends on an analogy between making promises and legislating. The concept of a promise provides a model by which a person can bind herself to act or forbear. A.power-conferring rule enables her to do this. By analogy, there could be power-conferring rules for legislating that bind all those, including legislators, to whom the descriptionsA CRITIQUE OF AUSTIN 33 in laws apply. Clearly, Congress can pass laws raising their pay or subjecting themselves as legislators to ethics codes (U.S. Const. art. I, sec. 5.2). Of course in promises a person binds herself to others; she cannot bind herself by a promise to herself (see Hardin 1985, 405). In legislation there is no other person to whom she is bound. The point of the analogy with promises is to show how rules conferring power to legislate can entitle persons to make laws binding on classes of people to which they themselves belong. Only a special sort of power-conferring rule is required. It is another question whether unlike a promisor a sovereign legislature can limit its own powers (see 4.2.4). 2.2.3 Origin. The third standard criticism discussed by Hart concerns the origin of laws—specifically the claim that the Austinian theory of laws as commands cannot account for the role custom plays in common-law systems. Hart points out that there are two questions about custom and law (CL, 44). Is custom as such law? He assumes the answer is obviously no. What is it for a custom to be legally recognized? The usual Austinian answer involves two parts. First, a custom is not law until courts use it in a decision. Second, as the courts and not the sovereign use a custom, the sovereign must tacitly authorize a custom by not overruling the courts’ use of it. Hart criticizes both parts of this analysis (CL, 45-47), He maintains that customs can be laws before being used by courts in deciding litigation. Courts may recognize that certain kinds of custom are law. If so, customs of these kinds are law even before courts use them to decide particular cases. Even if no legal system uses such a method, it is a possible one. Souse of customs by courts in deciding cases does not constitute a necessary condition for their being law. Next he criticizes the notion of a tacit order, This conception obscures the reality of modem legal systems. Rarely do legislatures even know about customs adopted by courts let alone decide not to interfere with their adoption. Of course statutes do overrule customs, and legislatures could by statute invalidate customs adopted by courts. The crux of this objection is, he writes, “that in any modern state, it is rarely possible to ascribe such knowledge, consideration and decision not to interfere to the ‘sovereign’, whether we identify the sovereign with the supreme legislature or the clec- torate" (CL, 47). Hart’s criticisms of the Austinian account of customary law do not appear telling. Hart claims that customs can be law before courts use them yet he himself seems to require some court recognition of customs. A broader34 HART’S LEGAL PHILOSOPHY interpretation or modification of the Austinian theory can perhaps accom- modate Hart's point. In maintaining that customs can be law before they have been used by courts, Hart asks, “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?" (CL, 46), His contention thus rests ‘on courts recognizing a rule or criterion that validates certain types of customs. ‘Hart apparently thinks his view differs from the Austinian one, because he takes the latter as the claim that courts must use particular customs as the ratio decidendi of decisions. Austin need not be so interpreted. Austin writes that a “custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned on it are enforced by the power of the state” (Austin 1954, 31). There are two parts to Austin’s view, adopting a custom and enforcing decisions based on it. He does not exclude the possibility of courts adopting a whole class of customs at once, say, by recognizing that customs from time immemorial are law. The point of the Austinian theory is that the courts must adopt customs as law. Hart has not eliminated this requirement by maintaining that courts can recognize a class of customs. Further, if courts were to assert that customs from time immemorial were valid laws but never decide in accordance with them in relevant cases, it would be pointless or absurd to claim that those customs were valid law. Although laws can be valid but not enforced (say, due to lack of prosecution), even on Hart's view they cannot be valid but ignored by courts. Hart's second criticism, that the notion of tacit orders is unrealistic, again overnarrowly interprets the view. For tacit orders, Hart requires some aware- ness by the sovereign of what the courts have done and conscious acceptance of that action. Perhaps the expression tacit order has such implications, but Austin, on occasion at least, formulates his point without using that or an equivalent expression. Austin holds that the power of ajudge to adoptcustoms as laws “is merely delegated. The rules which he makes derive their legal force from authority given by the state: an authority which the state may confer expressly, but which it commonly imparts in the way of acquiescence" (Austin 1954, 31). The sovereign acquiesces by granting courts authority to adopt customs, Few legislators are unaware that courts sometimes give customs the force of law. Hence, itis not implausible or unrealistic to maintain that they acquiesce in this practice. They are not aware of each particularA CRITIQUE OF AUSTIN 35 custom adopted, but major changes are frequently called to their attention and sometimes statues are passed to override court decisions. 2.3 Concept of a Sovereign Hart's more original, although not entirely new, criticisms of the Austinian theory pertain to the nature of sovereignty and the ability of the concept of a sovereign lo account for certain features of a legal system. It has long been objected to the Austinian theory that in moder societies no person or persons constituting asovereign can be isolated and specified. According to Han, three features of legal systems create difficulties for the Austinian concept of a sovereign. First, there is the continuity of law from one sovereign to another. Second, there is the persistence of law made by a sovereign into the reigns of succeeding ones. Finally, many systems contain legal limitations on legisla- tive authority. The Austinian theory analyzes a sovereign as a person or group of persons habitually obeyed and not in the habit of obeying anyone else. From this definition, Hart asserts, it logically follows that the sovereign is legally illimitable (CL, 65), The heart of the claim is not that the sovercign is unlimited, for that follows from the definition, but that in every society with a legal system a definite person or group of persons can be identified as the sovereign. The central element in the Austinian analysis of sovereign authority is the habitual obedience of the bulk of the population. Against this feature Hart's first two criticisms are directed. 2.3.1 Continuity. Hart's first criticism is that the Austinian theory cannot account for the continuity of law from sovereign to sovereign. He imagines a primitive society in which the Austinian theory might apply (CL, 52-53). There is a king or sovereign, Rex. At first there might be some difficulty in getting the people to obey him, but after a while they settle into a habit of obeying his orders. On Rex's death his only son, Rex Il, becomes king. However, on the Austinian theory, because the populace is not in a habit of obedience to Rex II, he cannot qualify as sovereign. Even more crucial, according to Hart, is the fact that usually succession is regulated in advance. Hence, prior to his father’s death Rex II has a title to be king, and after his father’s death he has a right to rule. Thus the Austinian theory cannot account for Rex II having a right to rule or for expecting the populace to obey him.36 HART'S LEGAL PHILOSOPHY ‘What is required to account for these features, Hart claims, is the acceptance of arule of succession. He believes "it is characteristic of a legal system, even in an absolute monarchy, to secure the uninterrupted continuity of law-making power by rules which bridge the transition from one law-giver to another" (CL, 53). The notion of habits cannot perform the function of such rules. ‘The existence of mules, Hart claims, resembles the existence of habits in that for both there must be convergent behavior. There must be a general type or pattern of behavior in society. But three central differences exist between habits and rules (CL, 54-55). (1) With habits there is mere convergence of behavior, but with rules failure to conform elicits criticism by others. (2) Nonconformity to a rule, unlike nonconformity to social habits, is considered a good reason forcriticism. (3) Rules have an internal aspect absent from mere habits. To have a habit one need not know that the behavior is general or teach others to follow it. With rules the followers have a reflective, critical attitude that is not a mere matter of feelings and that they teach to others, for example, children (see 3.2). To account adequately for the continuity of law Hart believes a rule of succession has to be assumed. A mere habit of obedience by most of society will not suffice. Habits of obedience are not normative and cannot refer to a class of successive legislators (CL, 58), Rather, the bulk of society must follow a rule recognizing Rex If as sovereign. This point might be qualified for modem societies in which only officials need explicitly recognize a rule of succession. The rest of the citizens need not consciously maintain or accept such a rule, only accept the results of official operations. 2.3.2. Persistence, Hart's second criticism of the Austinian view of sovereignty is that the notion of habitual obedience will not account for the persistence of valid laws from one sovereign to another (CL, 60-64). Laws made in previous regimes, say, Rex's, will be held valid in the reign of Rex II. ‘As being dead Rex is no longer habitually obeyed, why should his orders still be law? An Austinian reply maintains that the authority of laws comes from the sovereign who enforces them. Laws made by Rex siilll apply, because Rex Tl enforces and thereby tacitly commands them. This defense runs inte the criticisms of tacit orders considered previously (2.2.3). Further, it seems to imply that statutes are not valid until used by courts under the current sovereign. Whereas the claim that customs are not law until used by courts seems plausible, Hart observes that a similar claim about statutes is not (CL,ACRITIQUE OF AUSTIN 37 63). Such a claim about statutes goes beyond the one about custom by requiring courts to apply them during the reign of the present sovereign. This problem of persistence, Hart claims, need not arise if one uses the notion of a mule validating statutes under certain conditions. Such a rule could have a criterion counting as law statutes from past sovereigns as well as the present one. 2.3.3 Legal limitations. Hart’s third problem with the Austinian view of a sovereign is that in many countries the supreme legislative authority has only restricted powers. The United States Constitution places limits on the areas in which Congress can legislate. Even though these restrictions might not be part of a law as it is odd to call the Constitution a law, they do constitute legal limitations on legislative authority. Statutes contrary to these restrictions can. be declared invalid. Thus a sovereign with unlimited legislative powers is not a necessary condition for a legal system (CL, 67). Hart forestalls a possible Austinian.defense to the criticism about the limited power of many legislatures (CE, 72). Austin believed that even in England where the Queen in Parliament is unlimited, Parliament is not the sovereign. Rather, he maintained that at least in modern democracies the electorate constitutes the sovereign. Hart advances two objections to such a defense (CL, 74). First, it might well be that the bulk of the population belongs to the electorate. If so, it would not make sense to speak of the bulk of the population habitually obeying themselves. Obedience is not something one can give to oneself. Second, in this defense one must distinguish between people in their role as electors and in their role as subjects, Such a distinction can only be made by reference to a rule stating necessary conditions for a valid election or referendum. That is, appeal must be made to a power-conferring rule. Again the concept of a sovereign cannot be founded on habits of obedience but requires the concept of a rule. Further, even the populace might not be legally unlimited. Some constitutions have parts that cannot be amended by any method. 2.3.4 Habits and classes, The concept of the Austinian sovereign as a class of persons blunts the force of Hart's criticisms. Hart seems to treat the Austinian sovereign as a specific individual or a group of specific individuals. For Austin, however, the sovereign is a determinate person or body of persons. Each member of a determinate body of persons can be identified at a particular38 HART’S LEGAL PHILOSOPHY ‘time, but the determinate body does not consist of any group of persons picked ‘out, such as Peter, Paul, and Mary. Rather, a determinate body of persons comprises “all the persons who belong to a given class" (Austin 1954, 145). Austin goes on to indicate that the British Parliament is a determinate body of persons. The sovereign, as a determinate body of persons, can exist over a period of time and be the same sovereign even though the particular in- dividuals who compose the class vary (see also Moles 1987, 73). The British Parliament does not become a distinct and new sovereign merely because a member has died and there has been a by-election. Suppose the bulk of society habitually obeys a determinate body of persons in certain matters, The continuity of laws can then be assured, for changes in that body's membership do not imply that there is a new sovereign. Even in ‘Hart's imagined primitive kingdom, the sovereign can be a unit class so that the bulk of society obeys a class that has only one member at a time. Persistence of laws can be accounted for because there are not two different sovereigns but only one with a varying membership. Ina foomote Hart recognizes that Austin designates the sovereign by what Hart calls a “generic description” (CL, 241 n, 53). For the characteristics of continuity and persistence, Hart asserts that what is required is recognition of “a class or line of persons" who can mule (CL, 57, 61). He rejects an account of continuity by habits "first, because habits are not normative; they cannot confer rights or authority on anyone, Secondly, because habits of obedience to one individual cannot, though accepted rules can, refer to a class or line of future successive legislators as well as to the current legislator, or render obedience to them likely” (CL, 58). Hart's contention that habits of obedience to a person cannot refer to a class of persons is either trivial or false. The key phrase in his criticism is that “habits of obedience to one individual cannot . . . refer to a class". Whether this claim is true depends on the meaning given to ‘one individual’. If ‘one individual’ means ‘a person designated by a proper name’, then his claim is trivially true. A proper name cannot refer to aclass. If ‘one individual’ means “refers to one individual at atime’, then, for example, ‘the eldest male member of the Jones clan’ can refer toa class of line of future legislators. Technically, a statement using such an expression must be given a definite temporal reference, and for any given temporal reference itrefers to only one individual. ‘The individuals referred to at different times can constitute a class of succes-ACRITIQUE OF AUSTIN 39 sive legislators. The same feature must be true of a rule designating successive legislators. Another modification of Austin's view might accommodate: limited sovereignty. Any such recognition would modify Austin’s view, because he: did think a sovereign must be legally unlimited. The central point is that one can habitually obey another person only for certain matters. Consider the distribution of household chores. A man might habitually obcy his wife regarding certain household matters, such as taking out the garbage, and yet not do so in others, such as voting in elections. Robert Moles uses such a notion in contending that Hart misunderstands Austin regarding the range of application and legal unlimitability of the sovereign (Moles 1987, 71-72). He believes that Hart fails to recognize that on Austin’s view legislators in their private capacity can be subject to laws and that there can be nonlegal limits onsovereigns. However, Hart does not miss these points. Instead, he contends. that the distinction between capacities presupposes power-conferring rules and that although by definition a sovereign is legally unlimited, that does not correspond to the facts in contemporary societies (CL, 65, 67,74). Moles might, however, reply that constraints on sovereigns (failure of habitual obedience in some respect) do not constitute legal limits, because they are not coercive (Moles 1987, 72). Here the issue becomes definitional. If the sovereign cannot exercise coercion conceming certain matters because there is no habitual obedience, is this a coercive and legal limit? The sovereign is limited not because coercion is applied to the sovereign, but because the sovereign cannot exercise coercion. This, as Hart rightly indicates, amounts to a disability rather than a duty (CL, 69). More significantly, Hart discusses at length Bentham’s attempt to account for legal limitations on sovereignty by a habit of obedience on only some topics (EB, 233-240). First, suppose the limitation is composed by the bulk of the population not habitually obeying the sovereign in some respect, for example, in matters of religion. Hart contends that even if the bulk of the population did obey, say, due to a wave of religious fervor, the sovereign might still be legally limited (EB, 234). Should a challenge to religious legislation arise in court, the court might strike it down as ultra vires. ‘Hart also considers modifying Bentham’s view to maintain that legal limitations exist when courts or other officials habitually fail to obey the sovereign on some topic, Ifby habitual disobedience one means repeated acts of disobedience, Hart has two objections (EB, 237-38). First, such a view40 HART'S LEGAL PHILOSOPHY could not account for the first case arising under a limitation. The courts would have no habit of disobedience. Second, even if there were a series of acts of disobedience, the concept of a habit will not provide a unique description of limitations. Itcannot identify which matters, not yet the subject of legislation, are excluded. If by habitual disobedience one means a disposition (rather than repeated acts) to disobey, the claim gets matters backwards (EB, 238-39). The sovereign is not limited because courts are disposed to disobey, but courts are disposed to disobey because the sovereign is limited, say, by the constitution, ‘The constitution provides authoritative reasons for the courts’ decisions. 2.3.5 Authority. This returns us to Hart’s earlier point that the notion of habits of obedience cannot account for rights and titles, for authority. The concept of authority is complex. For present purposes, it perhaps suffices to say that X has authority for Y if X stands in a relation of superiority to Y (De George 1985, 14). In particular, we are concerned with where X's appropriate indications of how Y should behave or do things in some sense count. We can further distinguish two relevant senses of authority. In one sense an authority is de jure, in the other it is de facto (De George 1985, 18-19; Peters 1967, 84; see also Raz 1979, 9; Raz 1985, 296). De jure authority stems from rules granting the right to issue commands and orders. For example, traffic laws give police the right to direct traffic. De facto authority simply involves the ability or power to have commands and orders carried out, because of the recognition of superiority by those subject to them. De facto authority thus must usually be effective. A leader of a criminal gang might have de facto authority in a city or neighborhood although others might have de jure authority. The commands or orders of a person with de facto authority might be said to be authoritative because given by her. Austin and Hart differ in the concepts of authority that they ascribe to legal systems. This difference about the concept of authority that legal systems have indicates different analyses of the normativity of law. Austin clearly ascribes de facto authority based on the power of the sovereign to have orders and commands carried out. This de facto authority establishes the de jure authority within the legal system. Hart, in contrast, ascribes a de jure authority to the officials of a legal system. This authority depends on the de facto recognition of rules. Of course Hart recognizes that a legal system must be effective. Austin validates rules as authoritative on the ground of their issuance by persons with de facto authority. Hart validates persons as de jure authoritiesA CRITIQUE OF AUSTIN 41 on the ground of their being so designated by de facto authoritative rules. On both views, authority is a factual matter depending on acceptance or com- pliance by those subject to it. In this respect, they both differ from a theorist like Kelsen who postulates a norm conferring authority (Kelsen 1961, 115). Hart is correct that Austin’s account of habits as usual obedience will not account for the normative nature of law. However, one could adopt an internal point of view within an Austinian framework. People subject to a sovereign and who normally comply have a critical, reflective attitude toward the sovereign. They take the sovereign’s statements as providing reasons for acting in certain ways and criticize those who do not. Moreover, this attitude need not be held by most citizens, only those charged with carrying out the sovereign’s commands. This simply amounts to their accepting the sovereign as an authority. While this goes beyond Austin’s explicit theory, Austin’s use of ‘command’, which Hart recognizes as carrying a suggestion of authority, is a partial recognition of this point (CL, 19-20; see Moles 1987, 52-55). A pervasive weakness of Hart’s criticisms of Austin is that he faults Austin for not meeting standards that he believes are impossible. First, he restricts the Austinian theory to presenting necessary and sufficient conditions for laws and a legal system. Admittedly the theory was originally propounded as a set of necessary and sufficient conditions, but Hart recognizes this approach as inadequate for any plausible account of the diverse phenomena comprising a legal system. To take the Austinian theory in its strongest form, one might better treat those characteristics it identifies as part of a cluster concept of laws, or better, legal systems, Thus laws need not have sanctions, although they characteristically do (see Hart 1954a, xiii). Second, as just indicated, Hart does not consider reformulating the Aus- tinian view from an internal point of view. However, one might take it, or something analogous to it, toward persons with authority. But then one might question whether one can indeed distinguish between recognizing X as an authority and recognizing a rule conferring authority on X. Indeed, Hart claims that recognition of someone as an authority is equivalent to the existence of a social rule (EB, 258). Centrally, one has shifted from habits or regularities of conduct to another type of analysis (see 3.2). Because in The Concept of Law Hart interprets the Austinian theory in an overly narrow way, he can hardly claim to have argued against its strongest form. Hart’s criticisms are not “well-nigh conclusive” as might first appear (pace Singer 1970, 95). This is not to claim that the Austinian theory is42 HART’S LEGAL PHILOSOPHY immune to criticism. Indeed, Hart subsequently develops more detailed criticisms of Bentham’s theory, from which Austin's was derived and which Hart believes to have been a better one. A few of these points were mentioned concerning legal limitations on sovereigns. More of them will be considered in the next chapter. Our discussion has chiefly been aimed at elucidating Hart's main suggested remedy for defects of the Austinian theory, namely, power-conferring rules.CHAPTER 3 ELEMENTS OF LAW An account of law should explain the character of legal obligation. And one of the main problems of the philosophy of law according to Hart is the similarities and differences between legal obligation and coercion. Before distinguishing legal obligation from coercion (and later moral obligation) Hart sets himself “to understand the general idea of obligation as a necessary preliminary to understanding it in its legal form” (CL, 83). Central to this task is an understanding of two points of view one may take toward rules. Once the nature of obligation is understood, one can proceed to examine how the addition of some power-conferring rules to duty-imposing ones provides a basis for a legal system. 3.1 Obligation Hart does not distinguish between ‘duty’ and ‘obligation’, or at least his Primary discussions treat them together. In law, he claims, both expressions are usually “appropriate for whatever the rules of an actually existing legal system forbid" (Hart 1958a, 84), In discussing the concept of obligation in The Concept of Law, Hart calls these "rules of obligation" rather than duty-im- posing miles. However, as he gives the same analysis of duty and obligation, “duty-imposing rules’ makes clearer the relation to his analysis of types of rules. MacCormick criticizes Hart for not distinguishing between duties and obligations, but in the end MacCormick himself finds it more important to focus on a general concept of requirements that is common to both (1981, 59, 61). Making the distinction upsets nothing central in Hart’s theory and is quite compatible with it. Thus, for Hart, the requirements of duty-imposing rules are obligations or duties. 3.1.1 Predictive and imperative theories. Hart frequently distinguishes be- tween being obliged to do something and having an obligation to do it (CL, 80-81; Hart 1957a, 966; Hart 1958a, 95-98). Statements that a person is or was obliged to do something refer to her beliefs and motives. ‘X is obliged to do A’ implies that X believes unpleasant consequences will result if she does not do A. Usually these consequences must be important or at least thought 4344 HART'S LEGAL PHILOSOPHY to be so by X; that is, the harm threatened for failure to-do A should be serious. Further, ‘X is obliged to do A’ suggests that X"s motive in doing A is to avoid these consequences. Finally, to make the claim in the past tense implies that X did in fact do A, and to make it in the present tense implies that X probably will do A. Hart holds that to say someone has an obligation to do A is not to refer to her beliefs or motives for doing A. The motives and beliefs that characterize being obliged are neither necessary nor sufficient for having an obligation. ‘They are not sufficient, for a person can have those beliefs about and motives for doing A, as a bank teller threatened with a gun and told to open a safe, but not have an obligation to do A. Nor are they necessary; a bank teller has an obligation not to take money from the till for her personal use even if she believes that no serious consequences (being caught) will follow her doing so. Further, to say a person has or had an obligation to do A does not suggest that she will or did do it. Hence, having an obligation is not the same as being obliged. ‘The Austinian predictive theory, Hart explains, primarily analyzes obliga- tion as being obliged. It does not contain all of the features of being obliged. For example, the seriousness of likely punishment is not required so even a slight harm obliges, That is, "X has an obligation to do A’ is analyzed as the likelihood that X will suffer unpleasant consequences if she does not do A. ‘This predictive aspect is shared by Bentham and some legal realists. Bentham, Hart believes, probably held a mixed theory of legal obligation (EB, 133). Not only must there be a likelihood of a sanction, but it must be issued by judges or other political officials in accordance with a law. Hart has several major objections to a predictive analysis. First, by it, “X has an obligation to do A, but she won't be punished if she does not’ is a contradiction, but it is not (CL, 82; EB, 135). Recall, Hart does not believe that sanctions are necessary for duty-imposing rules. Second, a predictive analysis fails to distinguish between the meaning and force of a statement (EB, 136). A prediction or warming of a sanction might frequently be part of speakers" intent, but it is not part ofa sentence’s meaning. Third, and following from this distinction, when people use rules to speak about obligations, they are not merely or even primarily predicting punishment will follow deviation from the rules (CL, 82). Instead, they are indicating that the rules provide a reason for inflicting an evil for deviation. Courts do not use duty-imposingELEMENTS OF LAW 45 tules to predict that defendants will suffer an evil, but as reasons for inflicting iit, Hart's third objection to the predictive view is possibly unsound. It has been pointed out that even an armed robber takes noncompliance with her demands as a basis for imposing harm, not merely a prediction as to what she will do (Blackman 1977, 433). The person shoots because the victim did not comply. One might object that it is one thing to impose a harm because a person did not act as one wished, and another to think that noncompliance justifies imposing the harm. However, if ‘justification’ is used without moral significance, noncompliance is the robber’s reason for inflicting the harm. Consequently, Hart's criticism must rest on the first two points. As in the previous chapter we saw that duty-imposing rules need not carry sanctions (see 7.2.2), Hart's first point is a sound and sufficient objection. ‘One might, on an Austinian or Benthamite theory, modify the account of obligation. One could drop the predictive element and move to a dual imperative theory (EB, 143). On such a view, X has an obligation to A if and only if'an imperative law requires doing A.and another imperative law provides for a sanction if a person fails to do A (EB, 138-39). In effect, the sovereign commands acts and punishment for failure to perform them. ‘Hart has two fundamental objections to this approach (EB, 143-45). First, for a variety of reasons, Hart rejects an imperative theory of law as commands of the sovereign (see chap. 2). In particular, it will not account for the variety of sources or origins of law. Second and more centrally, it will not account for the normativity of law. To state that X has an obligation to do A is to assess X's doing A. It might presuppose or imply a statement about law or that a law exists, but it does not state that. One must distinguish factual statements about the law from propositions of law. Factual statements about legislatures passing laws and so forth are part of the truth conditions for statements of legal obligation but not part of their meaning. 3.1.2 Duty-imposing rules. According to Hart a person can be obligated to perform an action only if a rule of a certain kind requires her to do it (CL, 83). Duty-imposing rules, in Hart's opinion, have three or four features distinguish- ing them from other rules making conduct nondiscretionary. In The Concept of Law he identifies the following three characteristics of duty-imposing rules (CL, 84-85), First, they are supported by a general demand for conformity to them with considerable social pressure brought to bear on those who deviate.46 HART’S LEGAL PHILOSOPHY Second, usually they are deemed "important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it" (CL, 85). Third, duty-imposing rules prescribe conduct that can be contrary to an actor's wishes or interests. Of course, the required behavior might be in others’ interests. In an earlier article Hart offers three different characteristics of duty-im- posing rules, namely, their dependence on a social practice, their possible independence of content, and an element of coercion involved if they are violated (Hart 1958a, 100). Dependence on a social practice and coercion probably amount to the later condition of a general demand for conformity. A general demand for conformity to rules suggests that a social practice of conforming to them exists. Coercion was earlier taken to involve the attitudes and actions of others, which amounts to social pressure (Hart 1958a, 106-07). However, the second condition in this set, the possible independence of content, does not appear in those above. What this condition involves.can best be seen with respect to the obligation to keep promises. In one sense the content of this obligation is always the same, namely, to do what one has promised. However, the specific actions that fulfill this obligation depend on what one promised. In a more tenuous sense, Hart thinks of the duties of a social role as having independence of content because, although one cannot choose the particular duties, one can choose whether or not to take on a particular role (Hart 19582, 103~04). Hart adds one more element to his analysis of obligation. Statements of the form *X has an obligation to do A’ have the characteristic function of applying rules with the above features to individuals. That is, they function as conclusions inferred by subsuming individual cases under duty-imposing rules (CL, 83; Hart 1958a, 90). Thus statements about obligation and duty resemble those about rights and corporations in that they result from applying tules to particular instances but differ in virtue of the character of the rules applied. Hart's analysis of ‘obligation’ is similar to the pattern for the analysis of legal terms he recommended in his inaugural lecture (EJP, 21-48; see 1.2.2). ‘There he presented the truth conditions for a statement and its typical function. The difference here is that instead of talking about truth conditions, Hart talks of rules being presupposed by obligation statements (CL, 86; see Hacker 1977, 6-7). Hence, Hart’s account of ‘obligation’ can be presented in the sameELEMENTS OF LAW 47 pattern he earlier used for ‘a legal right’, making allowances for presupposi- tions (see Hoffmaster 1977, 1311). (1) A statement of the form *X has an obligation’ presupposes the following conditions, (a) There exists a mule having the following characteristics: (i) There is a general demand for conformity to and social pressure brought to ‘bear in case of deviation from it. (ji) It is deemed important because it is thought necessary for the existence of society or some significant feature of it. (iii) The conduct required by it may be contrary to the wishes of the actor. (b) Under this rule in the circumstances that obtain X is required to perform or forbear from an action of a definite kind. (2) A statement of the form ‘X has an obligation’ is used to apply the tule to a particular case that falls under it. This analysis is subject to the criticisms of the statement of typical function discussed earlier (1.2.2) and later made by Hart against Bentham's view. Also, the function of such statements is precisely that which Hart found statements of the form *X has a legal right’ to have. As both statements of rights and of obligations have the same function, it provides nothing distinctive about statements of obligation as compared to those of rights. The distinctive features of statements of obligation must, then, lie in the nature of the rules. ‘The change from truth conditions to presuppositions does not appear significant. Indeed, in a paper written after The Concept of Law and later revised for reprinting, Hart speaks of truth conditions (EB, 145), If rules are presupposed but do not exist, then the statement is false, That is, statements resting on false presuppositions are false, so such presuppositions amount to truth conditions, What is crucial is that the truth conditions for a statement of obligation are not the same as its meaning. 3.1.3 Authoritative reasons. Hart’s concept of obligation is further explicated by his theory of authoritative reasons. Suppose a commander, Alfred, issues commands, These commands can act as authoritative reasons for people subject to them. Authoritative reasons for acting are characterized by their peremptory and content-independent character. By their peremptory charac- ter, Hart means that they are not to function as another, even dominant, reason for subjects to use in deliberating about what to do. Instead, Alfred's com- mands are intended to exclude deliberation by those to whom they apply (EB, 253). Alfred might also threaten sanctions for noncompliance, but these48 HART’S LEGAL PHILOSOPHY threats are secondary—they reinforce the commands in case the subjects do in fact deliberate. This point fits with Hart's earlier claim that sanctions are logically independent of duty-imposing rules. ‘The content independence of authoritative reasons harks back to Hart's early characterization of duty-imposing rules as content-independent. Accep- tance of Alfred's commands is like acceptance of a rule about promise-keep- ing. Content independence consists in the fact that Alfred's commands, like promises, need have nothing in common; Alfred intends his issuing of com- mands to be taken as a reason for performing actions (EB, 254). The standing disposition of Alfred’s subjects to obey his commands provides the distinctive normative aspect lacking in the imperative theory's focus on habits of obedience (EB, 256). It is this disposition that renders Alfred’s commands reasons for action, not mere predictions of evil for failure to comply. This simple model can be expanded in a social group taking the normative attitude toward Alfred's commands (EB, 256-57). First, the com- mands can be addressed to individuals about particular acts or to classes of persons and classes of acts. Second, people can have any of a variety of motivations for being disposed to accept Alfred's commands as reasons—from a mere wish to please, to moral reasons, to even a fear of miscalculating and being punished. Third, Alfred’s commands can be taken to be standards for the evaluation of others. Fourth, the attitude can be widely or narrowly shared among the members of the group. The general recognition of Alfred's com- mands as peremptory reasons amounts to a social rule conferring power or authority on Alfred. His commands will then create obligations to act (EB, 259). In a more developed legal society, a variety of features are added to the simple model of a commander providing peremptory reasons. First, there will be developed law-applying and enforcing agencies. The persons in these agencies will take the commands as authoritative standards for evaluating others. Second, and most important, the idea of an authoritative reason will be detached from any necessary connection to a command. Thus, a variety of sources can be recognized by courts as providing authoritative reasons for actions and evaluating persons’ conduct, including complex legislation, cus- toms, and so forth (EB, 260-61), 3.1.4 Being held obligated. The central interpretive problem is whether Hart's accounts of duty-imposing rules and authoritative reasons can be combined