4 CRITICISMS BY HLA HART OF AUSTIN (Chapters 2, 3, 4, Concept of Law)

4.2.1 All law is a species of command? (Chapters 2 Concept of Law)

(i) According to Hart this account of a legal system (command, sanctions and
sovereign) is like that of a gunman situation writ large. In the case of a legal
system the gunman says it to a larger number of people. “Law is surely not
the gunman situation writ large and legal orders are surely not to be
identified with compulsion” – HLA Hart in ‘Essays in Jurisprudence and
Philosophy’.

(ii) According to Hart, the gunman addresses his victim face to face; law is
general in that it indicates a general type of conduct and applies to a
general class of persons (was this Austin’s version of the command?)

(iii) Hart states that where a command is given there need not be a latent
threat of harm in the event of disobedience. (which would apply to
Benthan’s version of the command theory not Austin’s).

(iv) According to Hart, to command means to exercise authority over men, not
power to inflict harm, a command is primarily an appeal not to fear but to
respect for authority.

(v) Hart further indicates that the gunman has only temporary superiority on his
victim, laws have “standing” or persistent characteristic. Legislatures are
bound by the law. The gunman has ascendancy or superiority on the bank
clerk, which lies in his temporary ability to make threat which is short-lived.

(vi) A gunman does not issue ‘standing orders’ to be followed time after time
by classes of persons, yet laws pre-eminently have this ‘standing’ or
persistent characteristic.
4.2.2 Is all of law coercive? (Chapter 3 Concept of Law)
(i) According to Hart there are other species of law which cannot be
construed as orders since they perform a different social function. Legal rules
defining ways in which valid contracts or wills or marriages are made do not
require persons to act in certain ways.

(ii) These confer legal powers upon them to create by certain procedures,
subject to certain conditions, structures of rights and duties within the
coercive framework of the law.

(iii) Some rules relate to capacity and others to the manner and form by which
power is exercised by private individuals (eg. contracts, wills) and public
officials eg judicial, legislative or administrative. For example, there are rules
relating to a law court like the subject matter and content of judge’s
jurisdiction and power to try certain cases.

(iv) Others relate to qualifications, manner of appointment and tenure (they

are not orders given to judges to do or abstain from doing something). There
are also rules defining conditions and limits under which the court’s decisions
are valid. An order in excess of jurisdiction is valid until set aside. Thus the
power conferring rules are not confined to private individuals but also to
public officials to change, create or enforce laws.

(v) Hart states that there is a radical difference between these power
conferring rules and criminal law (coercive orders backed by threats).
Hart concedes that power conferring rules are related to duty imposing
rules. “whereas rules like those of criminal law impose duties, power
conferring rules are recipes for creating duties”.
(vi) It is Hart’s view that the extension of the concept of sanction to include
nullity would be confusion, since nullity is a notion totally different from
punishment that follows from the breach of a criminal statute. Nullity cannot
be assimilated to a punishment attached to a rule as an inducement to
abstain from activities which the rule forbids.

(vii) According to Hart it is possible that sanction can be removed from a rule of
obligation as in criminal law leaving is only a standard of behavior. In the
case of attempts to remove nullity which is a part of the rule, it could not
exist as a non-legal rule. Provision for nullity is part of the rule itself.

(viii) As distinct from Austin’s definition of law, Hart maintains that legislation may
quite properly be binding upon the legislature itself. According to Hart what
is needed is a fresh conception of legislation as the introduction or
modification of general standards of behavior to be followed by society
generally.

(ix) As to the mode of origin, Hart states that there is one type of law called
custom, conflicts with Austin’s claim that all laws owe their status prior to a
deliberate law creating act. A custom attains legal status when it is
recognized as law.

(x) Hart rejects the notion of tacit ordering of a custom as law by the sovereign
by non -interference with the court. The legislator may take away their legal
status, but failure to do so may not be a sign of legislator’s wishes. Only
rarely is the attention of legislature turned to rules applied by courts.
4.2.3. The Austinian Sovereign (Chapter 4, Concept of Law)
(i) Hart points out that in the defining sovereign in terms of the habit of
obedience both in positive and negative aspects creates 3 major
problems. First the habit of obedience fails to accept for two features of
most legal systems namely the:
(a) Continuity of the authority to make laws by a succession of
sovereign; and
(b) Persistence of laws after the death of the law maker.

(ii) Hart then goes on to give a hypothetical example. He supposes that there
is a population living in a territory in which an absolute monarch (Rex)
reigns for a very long time; he controls his people by general orders
backed by threats requiring them to do/abstain from acts they would
otherwise do/not do. Though there was trouble in early years, things
have long settled down and in general people can be relied on to obey
him.

(iii) According to Hart, if we interpret the Austinian model literally, on the

death of the reigning sovereign called Rex I, the bulk of the society
cannot be habitually obeying his eldest son Rex II. Supposing, after Rex I
dies (after a successful reign) leaving Rex II who then starts to issue general
orders, the habit of obedience for Rex I need not be translated to the
habit of obedience for Rex II.

(iv) There may be no habit of obedience established yet; a wait and see
period. Thus initially, there is nothing to make him sovereign from start.

(v) What is required according to Hart is the conception of a rule of

succession in that the eldest son of Rex I (Rex II) will have right to make
law. In this way, his orders will become law even if there is no habitual
obedience as yet (as he may even die before getting the habit of
 obedience, yet his orders during his lifetime would be law.) Thus a
mere habit of obedience to Rex I is insufficient for Rex II to succeed or
make orders.

(vi) Hart states that the idea of lawful succession invokes not of the habit of
obedience but the acceptance of rules what Hart calls the ultimate rule
of recognition. (A concept he develops at length in Chapter 6 COL).

(vii) According to Hart, rules differ from habits because

(a) A deviation from rules is open to criticism, habits are merely
convergent behaviour.
(b) Criticism is a good reason and accepted to deal with deviation from
standard behaviour.
(c) Rules have an internal aspect; some at least look upon behavior as a
standard to be followed by group as a whole. (internal aspect).
“There is a possibility that people accept rules without any feelings of
compulsion. What is necessary is that there should be a critical reflective
attitude to certain patterns of behavior as a common standard in terms of
criticism, demands for conformity and acknowledgement that such
demands and criticism are justified.”

(viii) Hart explains that these rules cannot be explained by a habit of

obedience by the bulk of the people, since like these have an internal
aspect. A mere habit of obedience does not confer any right on Rex II.

(ix) Thus where a rule is accepted that whatever Rex specifies is to be done,
Rex would have a right and authority to legislate. A rule can best be
explained for continuity of legislative authority in terms of acceptance.
Such a rule looks forward. It refers to the future as well as present
lawmaker.
(x) Hart concedes that this acceptance cannot be in the heads of the mass
population for example, matters of constitution. It is sufficient that such
understanding exists among officials or experts; the courts. Officials
accept explicitly, ordinary citizens tacitly.
“…The weakness of doctrine of habitual obedience to orders backed by
threats distorts other active aspect - law making, law identifying and law
applying operations of the officials or experts of system.”

(xi) Can anything be done to salvage the Austinian Sovereign? Why not habit
of obedience to Queen in Parliament? This corporation or institution does
not die on the death of Rex I. How would Austin have to define such an
institution?

(xii) According to Hart, Austin would have to do so by reference to legal rules

which he notably states all emanate from the sovereign. These rules in
actual fact cannot come from sovereign.

(xiii) Next Hart deals with the issue of the persistence of laws. Hart gives the
example of the case of R v Duncan [1944], where a woman was
convicted for telling fortunes in violation of the witchcraft Act 1935. A
statue enacted centuries ago – may still be law today. How can be orders
of a legislator being dead still be law for societies that cannot be said
habitually obey him?

(xiv) Hart states that another rule rather than looking forward (rule of
succession) may look back at the operations of a past one - persistence.
“The notion of an accepted rule conferring authority on the orders of past,
present as well as future legislators – more complex that the idea of habit
of obedience to a present legislator.
 Unless the officials of he system and above all the courts accept the rule
that certain legislative operations, past or present, are authoritative
something essential to their status as law will be missing”

(xv) Another inadequacy of the Austinian sovereign, according to Hart, relates

to the negative aspect of the habit of obedience – the legally unlimited
and indivisible sovereign.

(xvi) Hart denies that the existence of a sovereign subject to no legal limitations
is a necessary condition for the existence of a legal system. He gives an
example where a written constitution may restrict the competence of the
legislature by excluding certain issues from the scope of its legislature
power.
“It imposes not legal duties but legal disabilities.. such restrictions are part
of the rule conferring authority to legislate and vitally concern the courts
since they use such a rule as a criterion of validity of purported legislative
enactments coming before them. They cannot be expressed as absence
or presence of the habit of obedience...”

(xvii) The Austinian doctrine of sovereignty according to Hart, runs into

difficulties in a modern democratic state. Where did Austin actually locate
the sovereign? According to Hart, in Britain and USA, Austin located it in
the electorate. Hart states that this would lead to the uncomfortable
observation of the bulk of society habitually obeying itself.

(xviii) Hart states that as we require rules to constitute an electorate, where do

these come from? They cannot come from the sovereign and since not
emanating from sovereign they cannot be valid law.
(xix) Hart contends that what is required is the idea of a rule conferring powers
which may be limited or unlimited on persons qualified in certain ways to
legislate by allowing a definite procedure.

4.2.4 Summary of Hart’s criticism

(i) It is clear that of all the varieties of law a criminal statute most resembles
orders backed by threats given by one person to other; nonetheless such
a statute differs from the latter since it also applies to those who enact it.

(ii) There are other varieties of law conferring legal powers which cannot be
reduced to orders backed by threats.

(iii) There are legal rules which differ from orders due to their mode of origin.

(iv) Finally, the analysis of law in terms of sovereign habitually obeyed and
necessarily except from all legal limitation fails to account for the
continuity of legislative authority characteristic of a modern legal system
and the sovereign could not be identified with either the electorate or
legislature.