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 (19th 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.
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command model of law, it is understood that these threats or orders are to continue to be in force until the order is withdrawn or cancelled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.