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Jurisprudence Hart vs Austin

Jurisprudence (University of Oxford)

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According to Hart, how does the law difer from the ‘gunman situation writ
large’? In rejecting Austin’s command theory, did Hart underplay the central
role of coercion and sanctions in understanding the nature of law?

In his work “The Province of Jurisprudence Determined” John Austin formulated what has
come to be known as the “command theory” to describe the nature of law. Summarised
at its simplest form Austin states that law is in essence command (i.e. order backed by a
threat).
The existence of law is hence like a gunman ordering a clerk in a bank to hand over the
money.
This description of law has been famously rejected by HLA Hart in “A Concept of Law” in
which he sought to diferentiate that ‘gunman situation’ from legal obligations.
I will irstly outline the arguments Hart employs in seeking to diferentiate the two
concepts.
Thereafter I will address the second question and argue that Hart rightly rejected the
command theory and did not thereby underplay the central role of coercion and
sanctions. In doing so I will attempt to show that coercion and sanctions are not central to
understanding the nature of law and that while law can be coercive it is not necessarily
so.

In distinguishing the nature of law from the ‘gunman situation’ Hart brings forward four
central arguments in Chapter II and III. I will call these general application argument,
‘standing order’ argument, continuous authority argument and variety argument.

Firstly, Hart argues law difers from orders by a gunman because law is of general
application. A legal system functions by directing standard generalised orders at a public
at large and individual direction play an ancillary role only. Unlike in the case of the
gunman who directs his order at one person (the clerk) legal rules prescribe a standard
mode of acceptable conduct for a general class of persons.1
In reality there is no real parallel to the face-to-face situation of the gunman even in
criminal statutes that resemble most closely the concept of law being orders backed by
threats.

Hart’s second argument is that of the lack of what he calls “standing orders” 2 in the
gunman scenario. Laws generally have a ‘standing’ or persistent characteristic, i.e they
are meant to be valid over a longer period of time. The order of the gunman on the other
hand is a one-of direction and there is no continuing relationship between the parties

1
HLA Hart, The Concept of Law, 2nd ed. 1994, p.7
2
Ibid. P.23

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“except the short-lived coercive order”.3 After the gunman has left and removed the clerk
form the threat of his gun, his order will cease to have any force.

Expanding on his previous point Hart then points out that laws have a somewhat
continuous authority, i.e. persons subject to them will generally obey them habitually and
thereby those who make the law. “Temporary ascendancy by one person over another is
naturally thought of as the opposite of law.”4 Hart argues. Lawmakers unlike orders by the
gunman have long-lasting authority conferred on them by the habit of general obedience
to their directions.

Hart’s last and most powerful argument is that the gunman fails to account for the variety
of law. While is approximates a penal statute the same is not true for any other variety of
law. The ‘variety argument’ is sub-divided into three objections to the gunman scenario. 5
The three objections concern irstly the content of law, secondly the range of application
and lastly the source of law.
The content of laws is diferent to orders by a gunman because some laws unlike orders
confer powers on individuals are a class of people. Laws do not just impose duties but
also facilitate the creation of legal rights and duties (through contract, wills, trust etc.) 6
The second point is in essence that laws in most modern legal systems are not orders
given to others but legal duties are also imposed on those who make the rules.
Hart’s last objection concerns the source of law and emphasises that some laws originate
not from conscious-decision making but from custom and there is therefore no
‘commander’ obliging compliance with his orders.

Having identiied these deiciencies of the gunman model Hart develops his notion of e
legal obligation in Chapter V. In his view “being obliged” and “having an obligation” are
essentially diferent. The former connotes compulsion whereas it is perfectly possible that
a person has an obligation and feels no pressure to fulil it. Hart illustrates the diference
with reference to the gunman situation. The clerk feels obliged to hand over the money in
the face of the threat but it would certainly be wrong to say that he had an obligation to
do so.7
For Hart laws have to be seen against the background of a social situation “that, unlike
the gunman situation, includes social rules."8 Legal rules prescribe a certain mode of
conduct in the social situation. They difer from mere habits through the way they are
regarded by the persons subject to the rules. These persons have internalised them as
reasons for acting in a particular way and refer to them when criticizing deviation from

3
Ibid. P.23
4
Ibid. p.24
5
Ibid. p.26
6
Ibid. p.27
7
Ibid. p.82
8
Ibid. p.85

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the standard.9 The belief that one ought to act in a certain manner and not merely the
fear of adverse consequences motivates the adherence to legal rules.

The reasons Hart brings forward for rejecting Austin’s theory are convincing. It remains to
be shown that this rejection does not underplay the central role of coercion and sanctions
to the nature of law.
Hart has subsequently been understood by some as making such a bold claim as that
there is no correlation between law and coercion. Schauer interprets Hart’s argument to
be that Hart envisages a coercion-independent legal system10 In fact Hart never went that
far11, he simply rejection that notion that the nature of law could be described as being no
more than command by a sovereign (a person habitually obey by others but not
habitually obeying anyone).
Rejecting the command theory does not mean asserting that coercion and sanctions
cannot be elements of law and that certain legal rules are not frequently obeyed (only)
because of the prospect of sanctions. Yet, if one seeks to describe the essential features
of law encompassing all legal rules, the command theory appears to fail. It can simply not
adequately describe power-conferring laws and account for the diverse motivations
people may have when obeying the law.
It is however one thing to say that law is not only command and yet another attributing
only minor signiicance (or no signiicance at all) rather than a central role to coercion and
sanctions.
An argument used to claim that coercion and sanctions are central to the nature of law is
what Lamond refers to as arguments of eiciency.12 It is evident that for a legal system to
be efective the legal rules must be habitually obeyed by signiicant proportion of people
subject to the rules. The use of coercion to secure conformity and thereby eiciency is
claimed to be essential. Lamond however forcefully argues that the link is exaggerated. 13
Reasons for conformity with the law are complex and it is not conclusively proved that
coercion is necessary to achieve it. Even if it were so “the necessary coercive could come
from sources outside the law14 in form of social pressure that is not prescribed by law,
such as loss of reputation or boycotts.
Furthermore, law is not necessarily linked to sanctions. I have argued above that it is
diicult to interpret power-conferring laws in such a way even if one accepts nullity of
transaction as a form of sanction.15 Lamond asserts that “sanction-less legal duties are
both fully intelligible and extant.”16

9
Ibid.p.85
10
F. Schauer, Was Austin Right After All? On the role of Sanctions in a Theory of Law (2010) 23 Ratio Juris 1
11
Ibid. p.7; where Hart asks the question: “How then [does] law differ from, and how [is it] related to, orders
backed by threats?” (emphasis added)
12
G. Lamond, Coercion and the Nature of Law, (2001) 7 Legal Theory 35
13
Lamond, p.35
14
Ibid. p.48
15
See Hart, p.33
16
Lamond, p.53

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When one agrees with Hart’s description of legal obligations as rules that have been
accepted as a standard of behaviour in a certain legal system and breach of which would
be prima facie wrong then it becomes clear that for “conscientious members of society
the prospect of sanction provides [only] additional reasons for compliance”17(emphasis
added).It is hence conceivable that laws will be complied with even without the prospect
of sanctions.
Schauer rejects this notion and maintains that this is only true when the theory of law is
formulated in the abstract. He claims that “if it is the task of legal theory to provide
philosophical and theoretical illumination of the law as it exists and it is experienced then
a theory that fails to give a central place to law’s coercive reality may…be deicient” 18
(emphasis added).
Schauer argues that in modern legal systems Hart’s “puzzled man”19 may well not exist or
be a signiicant minority. “Law’s coercive dimension” he says, “is not only how vast
numbers of people see the law, but also why so many people…do what the law says. 20 In
defending his point Schauer places emphasis on repressive current legal systems: “law
exists in North Korea as well”21
Although Schauer may be right that fear of sanctions might, in some legal systems, be
the only reason for obedience that does not prove that coercion is a core element of law.
While it is accepted that in free societies certain laws are only obeyed due to fear of
sanctions and people are therefore coerced to comply, this is not true for the whole body
of law not even for prescriptive (rather than empowering) laws. It is unrealistic to suppose
that people’s only or even prime motivation for wearing seatbelts while sitting in a car is
that they are afraid of incurring a ine in the (unlikely) event of being stopped by the
police. Compliance with less convenient (and less potentially life-saving) legal rules is not
necessarily achieved through coercion but because complying with the law is generally
seen as a good enough reason due to “the supposed validity of a legal system’s claim to
authority.”22
Thus, as Lamond puts it, “coercion is not the most salient aspect of law – at best it is the
most salient aspect of certain legal systems”23. In my opinion Hart accordingly did not
underplay its role as it is not central. The fact that he largely disregarded the coercive
dimension of some laws is of little signiicance given that Hart’s aim was to show that the
command theory could not adequately capture the nature of all laws and never negated
that law and coercion are in some respect related.

17
Lamond, p.47
18
Schauer, p.1
19
Hart, p.40
20
Schauer, p.18
21
Ibid. p.18
22
Lamond, p.53
23
Lamond, p.56

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