H.L.A. Hart and The Concept of Law [Part 3]

As we said in the first post of the series,Hart prepares the ground for his own theory of law by examining the failures of an earlier (19^th century) theory of law, that of John Austin.

 

Austin’s theory of law was very simple, perhaps even simplistic. He proposed that law is (or laws are) the commands of a sovereign. Hart systematically dismantled this definition of law. He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns.

 

 

H.L.A. Hart and The Concept of Law [Part 1]

 

Las week we continued with Hart's analysis on Austin's command model of the law.

 

 

H.L.A. Hart and The Concept of Law [Part 2]

 

This week we are going to focus our attention on Hart's criticisms with regards Asutin's theory.

 

Hart's criticisms.

"there are important classes of law where this analogy with orders backed by threats altogether fails."  CoL 27

 "Law without sanctions is perfectly conceivable" CoL 38

Hart’s first criticism is that Austin's model focuses on duty conferring norms and ignores power conferring norms. In other words, some laws are not orders to do or not do something, but simply provide individuals with facilities for accomplishing their desires. An example of the latter would be laws describing how to make a will, or how to make contract, or how to marry—these laws do not take the form of a command, and they don’t imposes a duty on anybody to do anything—they merely say that if you observe certain specified formalities your actions will have certain specified effects. These types of laws—laws that confer a power on private individuals or public institutions—are not adequately characterised as "orders backed by threats". The command model simply can’t account for the variety of laws, and that is the point that Hart is trying to make.

Hart also considers and rejects various attempts that have been made to bring “power-conferring rules” within the category of “orders backed by threats”. But Hart rejects all these attempts to save the command model as distortions of what they really are.

Another problem with Austin’s model is that it does not account for the fact that lawmakers are bound by the laws they make (see p. 42-44)

1.      unlike the orders of gunmen, laws typically apply to those who enact them and not merely to others, and Austin’s model does not seem able to account for this  (see p. 79)

2.      in other words, there is nothing essentially “other-regarding” about law, as there is with orders directed at others to do things under threats, for law may perfectly well have self-binding force

3.      nor does it seem satisfactory to account for this by treating legislators as enacting laws in their official capacity but being subject to them in their personal capacity

Austin's model does not explain the binding legal force of customary norms. Austin argued that custom only becomes law when it is first applied by the courts and thereby receives "legal recognition". But Hart argues that customary norms are treated as law even before they are applied—i.e. they are applied because they are law rather than they become law because they are applied. 

Hart also claims that Austin's model fails to explain the durability of law in two respects

a.    Austin's model fails to explain the continuity of obedience though the transition from one sovereign to another.

b.    Austin's model also fails to account for the persistence of laws enacted long ago

 

How [is] the first law made by a successor to the office of the legislator already law before he personally had received habitual obedience?

How can law made by an earlier legislator, long dead, still, be law for a society that cannot be said to habitually obey him? CoL 62

 “it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power”  CoL 53-54.

“it is characteristic of a legal system…to secure the uninterrupted continuity of law-making power by rules which bridge the transition from one lawgiver to another”  CoL 53-54.

…

rules…which may in a sense be timeless CoL 62

 

Hart also has problems with Austin's conception of sovereignty in general. The Austinian model does not claim that the power of the sovereign is unlimited, for there may be various limits on what the sovereign may do imposed by popular opinion or even the sovereign’s own sense of morality. What the Austinian model does claim, however, is that the sovereign’s power is subject to no legal limits. But it is hard to identify a sovereign whose power is not subject to some legal limits.

See CoL p. 70-71 for a summary of the problems Hart sees in Austin’s conception of sovereignty.

 

Hart's theory: being obliged or having the obligation

Hart first focuses on the normative quality of rules. There is a difference between the acceptance of rules and habitual obedience: the acceptance of rules entails both a desire to conform and the expectation that deviations will evoke censure and pressure for conformity, whereas with mere habits, aberrations do not generally provoke censure.

Hart also distinguishes "being obliged" from "having an obligation". "Being obliged" means being compelled to do or forbear doing a certain act from fear of punishment. "Having an obligation" means being required to do or forbear doing something by an authoritative set of norms.

Hart distinguishes between breaches of rules as "signs" that punishment will occur and breaches of rules as "signals" that punishment should occur: a) where a breach of a rule is a sign that punishment will occur it is predictive; b) where breach of a rule is a signal that punishment should occur the rule is normative.

Considering yourself as "having an obligation" and seeing a breach of a rule as a "signal" that punishment should occur rather than simply as a sign that punishment will occur is only possible if you are looking at a legal system from the internal perspective. So the internal perspective is an engaged or committed perspective and this the perspective of the participants in a legal system.

 

Movilidad Internacional de Personas: MERCOSUR y Unión Europea

Resumen

El presente artículo se centra en dos zonas geográficas, las de Sudamérica y Europa. En particular, analizaremos las migraciones que se dan en dos organizaciones supranacionales como el MERCOSUR y la Unión Europea (UE), y la manera en que estos procesos migratorios son regulados por el derecho. Mantenemos en este artículo que tanto en el caso del MERCOSUR como en el de la UE la ciudadanía comunitaria continua siendo un interrogante puesto que en ninguno de estos casos hay una relación directa entre las organizaciones supranacionales y los individuos

 

Texto completo: Movilidad Internacional de Personas: MERCOSUR y Unión Europea [Texto Completo]

 

 

Presentado en

 

VII Congreso del IRI, I Congreso del COFEI y II Congreso de FLAEI: para acceder al Programa Definitivo Programa Completo

 

VII Congreso del IRI, I Congreso del COFEI y II Congreso de FLAEI: para acceder al Flyer informativo  Flyer.

 

H.L.A. Hart and The Concept of Law [Part 2]

Hart vs Austin

As we said last week, Hart prepares the ground for his own theory of law by examining the failures of an earlier (19^th century) theory of law, that of John Austin.

Austin’s theory of law was very simple, perhaps even simplistic.  He proposed that law is (or laws are) the commands of a sovereign.  Hart systematically dismantled this definition of law.  He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns. 

 

H.L.A. Hart and The Concept of Law [Part 1]

 

Austin's command model of the law.

Austin (1790-1859) argued that law is simply a set of imperatives or commands or orders issued by a sovereign and backed by threats. Hart concedes this model has been extremely influential on jurisprudence, but he notes that the “gunman analogy” cannot be taken too literally—it must be qualified in a number of ways if it is to capture certain features that are present in our concept of a legal system

 

a)      first, for a legal system to exist, the commands must be general in two ways

1.      they must pertain to general types of conduct—in other words, the commands must be phrased in terms of general prohibition—e.g. don’t commit murder, rather than specific prohibitions—e.g. don’t murder Mr. X

2.      and they must be addressed to general classes of persons—in other words, they must apply to everyone who might engage in that conduct, and not just specific individuals

 

b)      second, the commands must also be durable, meaning they have standing force over time

1.      in the gunman example, the threat or “order” may be imagined to be limited to a specific time and place—e.g. “hand over your money or I’ll shoot”

2.      in this case, the order is limited in time, and once the money is handed over or not the order no longer applies

3.      but under the command model of law, it is understood that these threats or orders are to continue to be in force until the order is withdrawn or cancelled

 

c)      third, it must be generally believed that the threats are likely to be implemented in the event of disobedience

1.      it may be the case that the power to carry out the threat exists only because most people are in fact prepared to obey voluntarily—i.e. independently of fear of the threat, and to cooperate in the execution of the threat against those who have disobeyed

2.      but in any case, a continuing belief that the threat is likely to be carried out is necessary to keep the force of the original order “alive” or standing

 

d)     fourth, the law must be generally and habitually obeyed. Law has a relatively settled and enduring character, and while the question of how many people must obey and for how long admits of no definite answer, even continuing obedience that was merely the product of the brief temporary ascendancy of one person or group over another would not be thought to be the product of law

 

e)      and finally, the commands must emanate for a source that is not itself subject to and does not itself habitually obey some other source of command. This is to reflect the fact that one characteristic of a legal system is a certain kind of supremacy within its territory and an independence from other systems that may exist elsewhere.

 

Therefore, Hart refines Austin’s statement of the command model. A legal system under Austin's model exists wherever there are general orders backed by threats that are given by a sovereign who is habitually obeyed and habitually obeys no one.

Note, however, that the sovereign referred to in the model need not be a particular individual—the claim is simply that wherever there is law, there is ultimately to be found latent beneath the variety of political forms, in a democracy as much as an absolute monarchy, this simple relationship between subjects or citizens rendering habitual obedience and a sovereign person or entity which renders habitual obedience to no one.

Whether a legal system exists under this model is purely a question of fact. In other words, all these various characteristics either exist or not as an empirical matter, and while some of them may be a bit vague, it should be theoretically possible to determine as a matter of fact whether the necessary features are present.

But this is not Hart’s model or concept of law—Hart is merely trying to make the strongest case possible for the command model, and once he does so, show that even this refined version has problems that cannot be corrected merely by making adjustments to the model.

H.L.A. Hart and The Concept of Law [Part 1]

Hart prepares the ground for his own theory of law by examining the failures of an earlier (19^th century) theory of law, mainly that of John Austin.

Austin’s theory of law was very simple, perhaps even simplistic.  He proposed that law is (or laws are) the commands of a sovereign.  Hart systematically dismantled this definition of law.  He showed that laws are not commands and that legal systems are not based on what Austin called sovereigns. 

 

For Austin:

Law is commands laid down by a sovereign

Commands are an expressed with that something be done coupled with a threat of sanction for non compliance

Sovereign is person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution.

 

General orders backed by threats given by one habitually obeyed (Austin, summarised by Hart, CoL 24)

 

The foundations of a legal system consist of the situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one.  CoL 100

 

We shall follow Austin in an attempt to build up from it the idea of law.  We shall not, however, hope, as Austin did, for success, but rather to learn from our failure.  CoL 20

 

Very Brief Biography

Herberet Lionel Adolphus Hart—H.L.A. Hart—was born in 1907 and began his career as a barrister, practicing law in London for eight or nine years

He then was a Fellow and Tutor in Philosophy at New College, Oxford from 1945-1952, then University Professor of Jurisprudence at Oxford until 1968, and then Principal of Brasenose College, Oxford until he retired in 1978, although he remained quite active until his death in 1992.

Ronald Dworkin, who we will also read in this course, was a student of Hart’s, and eventually succeeded Hart as Professor of Jurisprudence at Oxford, although Dworkin is now Professor of Jurisprudence at University College London.

 

 

The Concept of Law

It was published in 1961 and which is considered a modern classic in legal theory. Just before his death, Hart added a postscript to The Concept of Law to respond to some of the criticisms leveled against the book by Dworkin.

In The Concept of Law, Hart not only addresses the question “what is Law,” he also discusses the role judges play in creating and interpreting the law and examines the connection between law and morality.

 

Persistent questions

Hart begins by noting that there are three persistent questions about the nature of law

                                                            a)      First, what is the relationship between law and coercion?

1.      the most prominent feature of law in all places and in all times is that it makes certain kinds of human conduct no longer optional, but in some sense obligatory

2.      this has led some theorists (notably John Austin) to characterise law as “orders backed by threats,” and Austin’s view has had a great influence on much of the science of jurisprudence

3.      Hart concedes that there is some truth to this view, but he considers it overly simplistic, and therefore tells us that one of his tasks will be to examine more precisely the ways in which law and legal obligation differ from and are related to “orders backed by threats”

                                                            b)      The second persistent question about the nature of law that Hart tells us he plans to examine is the relationship between law and morality

1.      law and morality clearly share a certain vocabulary—there are both legal and moral rights, legal and moral duties, and morality also makes certain forms of human conduct no longer optional but in some sense obligatory

2.      there is also a great deal of coincidence between the types of conduct that are subject to moral prohibitions and the types of conduct that are subject to legal prohibitions—murder and most other forms of violence, theft, and most instances of breach of promise, for example, are all prohibited by both legal and moral rules in every society

3.      this as led some to argue that law is simply a branch of morality called justice

4.      yet we are also prepared to criticise law as unjust, and to argue that unjust laws should not be obeyed, so clearly the relationship is more complicated than this—justice is something both inside and outside law, not coextensive with it, it is a standard against which law may be evaluated, and a more precise statement of the relationship between the two needs to be specified

                                                            c)      And finally, the third persistent question about the nature of law that Hart plans to examine is the nature and status of rules

1.      for example, some rules tell us how to behave and other rules tell us what we must do to give effect to our wishes (e.g. how to make a will), and this is a distinction that needs to explored and explained

2.      there is also a distinction between rule-obeying behaviour and habitual behavior that needs to be examined and explained

3.      and finally, there is the question of what courts are doing when they purport to apply rules

a.       are they merely interpreting existing law and applying it to the particular circumstances before them

b.      or are they sometimes filling gaps in the law by creating new law in areas where there was none before

c.       and if the latter, is this a legitimate role for the courts to play, or should these sorts of law-making activities be reserved exclusively for the legislature?