Reassessing Legal Normativity And The Gunman

Introduction

HLA Hart’s critique of John Austin is contained for its better part in his seminal work, The Concept of Law, in which Hart attempts to provide an improved response to the normativity of law by responding to the perceived deficiencies Austin’s theory. Hart considered that Austin’s failure to provide the theoretical framework for explaining normativity of law was a mistake and instead of offering such framework, Austin made a second mistake in reducing law to commands of the sovereign backed by sanction, which failed to adequately and comprehensively explain the ways in which people think and employ normative vocabulary about law. In other words, Hart objected to the reductionist approach of Austin’s theory.

Hart critiqued John Austin on the ground that Austin was wrong on facts when he claimed that every positive law, simply and strictly so called, is set by a sovereign authority and is backed by a sanction. This ‘gunman theory’ as Hart termed Austin’s theory of law, was based on a factually incorrect premise, according to Hart as there are too many laws that do not look like commands of the nature proposed by Austin and too many orders that do not coform to the idea of law, such as the gunman’s order, explained later in the essay.

According to Austin, there are three central features of the law: law is addressed from the superior (sovereign) to inferior (person in habit to pay obedience to the sovereign); and laws are enforced by sanctions, these being punitive in nature. This conceptualisation of law, in Hart’s view, is not able to accommodate certain aspects that are found in modern legal systems. First, laws in modern legal systems also apply to legislators and in that case Austin’s theory does not satisfactorily explain who the sovereign is: the legislator or the law. Second, all laws are not obligation conferring, some may enable people or give them the power to do certain things, such as, making a will. Austin’s theory of law does not accommodate these power-conferring laws. Third, customary law cannot be accommodated in Austin’s theory because these are not made by the sovereign, rather these evolve out of social practices. Hart sought to resolve these problems in Austin’s theory by replacing commands with rules. Rules can apply to legislators, can be enabling and give power to make a will or contract, and give custom the status of law. In this way, Hart sought to provide a more evolved conceptualisation of law than the one provided in Austin’s theory. To what extent Hart was successful in achieving this improvement on Austin’s theory, is one of the inquiries made in this essay.

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There are six points on which HLA Hart critiques John Austin’s theory of law. These six points relate to command, which Hart corrected to general order; all norms cannot be reduced to a single form, that is, command; not all laws are wishes of the sovereign; sanction’s role was exaggerated by Austin; sovereignty cannot be at the foundation of the law because sovereignty itself may be constituted by the law; sovereignty cannot be constituted by the habits of obedience. These criticisms will be considered in this essay. The essay takes a critical approach to understanding Hart’s criticism of Austin’s concept of law, therefore, critical approach is also applied to Hart’s theory in the essay.

The essay argues that Hart despite all his criticism of Austin did not seem to have advanced significantly on Austin’s theory and that in some crucial respects, Hart’s theory does not present an improvement on Austin’s theory.

Hart’s Critique of Austin
Obligation

It is on the point of obligation, that Hart found Austin’s theory of law the most deficient. According to Hart, Austin was not able to distinguish obligation due to a fear and obligation under the law. The defect in Austin’s theory, as per Hart, was that there is a difference between the concepts of ‘having an obligation’ and ‘to be obliged’, which Austin failed to grasp and respond to in his own theory. Hart argued that social members follow rules because they recognise that rules are made in a legitimately authoritative way, and therefore, are valid and to be followed. There is an internal aspect to why rules are followed, which according to Hart, Austin’s reductionist approach to law as a command of the sovereign backed by sanction, fails to incorporate.

Hart himself identifies three sources of internal aspect, that is, internal reasons why rules are followed. First, rules are followed because there are general social pressures that are imposed on people and make them follow rules. Second, there is a commonly accepted notion that legal rules are necessary to maintaining a social life. Third, there is a recognition that obligation to obey the law requires a degree of sacrifice due to conflicts with self-interests or viewpoints of individuals. By providing the internal aspect, Hart was keen to provide points of distinction with Austin’s theory and also provide points of enhancement or improvement on Austin’s theory.

Austin’s obligation was enforced through a fear of sanction, in the same was as a person may be obliged to do something due to the fear of a gunman in the bank who is commanding certain behaviour or conduct from them, but who they are not inclined to obey. In the case of the gunman in the bank, a person may feel obliged to follow out the command, but this obligation was different from a legal obligation that people feel bound by. Hart’s criticism of Austin in this context was that Austin was simply stating the fact that people obey the law, but not explaining the reasons why they obey the law from an internal aspect, which is the crucial difference between obedience to gunman and obedience to the law, in that the latter is followed not simply because of the fear attached with disobedience but something more, or the internal aspect.

Hart argued that instead of legal obligations consisting in threats of punishment, rules as a source of obligation offered a more appropriate explanation for legal obligation. According to Hart, this would explain the nature of obligation that was placed on people within the legal system. As mentioned earlier, Hart proposed three features of rules of obligation: rules are important for maintaining social life, enforcement of rules is ensured through social pressure to observe rule, and rules may also require people to do things they are not in favour of doing. This may not be seen in the way Austin conceptualised his command. As Hart critiques Austin on this point, “It is obvious that the idea of command with its very strong connection with authority is much closer to that of law than our gunman’s orders backed by threat, though the latter is an instance of what Austin calls a command. A command is however, too close to law for our purpose; for the element of authority involved in law has always been one of the obstacles in the path of any easy explanation of what law is.”

Sanctions

Hart viewed obligations as that which comes from rules that are enforced, whereas Austin viewed obligatory rules as necessarily backed by a threat of sanctions. While both Hart and Austin put obligation at the centre of their conceptualisation of law, there is a crucial difference between the two, for Austin, identification of obligation itself is related to the inherent threat of sanctions that comes with it; whereas for Hart obligation comes from the rule, with or without sanctions. Hart’s critique of Austin’s theory was also based on the role of sanctions in Austin’s theory, which according to Hart was greatly exaggerated by Austin. In other words, Hart viewed the role of sanctions and use of force in Austin’s conceptualisation of law as being over emphasised. According to Hart, sanctions are not necessary for the fulfilment of all the law’s functions. There are other ways in which law’s obligations are enforced.

Hart distinguished between the rule and the motivation that a person may have for complying with the rule. Here, he used the internal and external point of view on rules to explain the distinction between the obligation made by the rule and the motivation for complying with it. The internal point of view on a rule is when the rule is complied with simply as on the basis of what is being demanded in the rule, for instance, stopping at the stop sign on the road simply because there is a stop sign. On the other hand, external point of view on a rule is where the rule is used to predict people’s behaviour, which is done on the basis of the sanction or legal consequences for not following the rule. For instance, breach of contract may entail damages for breach of contract, therefore, a person would comply with contract in order to avoid the legal consequences of the breach of contract.

Commands

Austin conceptualised law as a command of the sovereign, which was followed because it contained the element of obligation made certain through fear of sanctions or punishments. This led Hart to describe Austin’s command with reference to the gunman in the bank example. A gunman may also command people to obey some order of his, failing which, the people may be shot dead; therefore, they may be expected to follow through the gunman’s command on the fear of death. However, the gunman’s command cannot be a law and Austin fails to distinguish command from the sovereign from those of the gunman because both are termed imperatively and both are attached to a fear of sanction or evil for the disobedient. Hart objects to reducing the entire body of law to a series of commands, although he does admit that there are laws that can be in the nature of general orders.

Hart states that “legal control is therefore primarily, though not exclusively, control by directions which are in this double sense general.” What he means is that laws are general in nature, and even though not always in the form of commands may be enforced through imperative commands from the officials. However, commands by officials are not law in the general sense. Legal control may be primarily exercised through directions that are formulated as commands, but their obedience does not lie in the fact that they are commanded, but something more than that.

Hart noted that the concept of general orders of the sovereign, or one who is in general habit of receiving obedience, backed by threats or sanctions, even when taken beyond the gunman and applied to the lawmaker or enforcer, brings the command closer to those that are made in the penal statute, and not to other varieties of laws that are found in the modern legal systems. There are other kinds of laws that are found in the legal system that do not accord to the notion of the command of the sovereign.

In other words, some laws do have the structure of commands, predominantly seen in criminal law and administrative law; however, there are many other kinds of laws that do not give commands to the people, rather they may confer powers or enable some actions on the part of the people. Therefore, in Hart’s critique of Austin, the latter’s tendency to reduce all legal norms to one general form of command, was incorrect. Here, the principal points to be noted are that not all expressions of wishes of the sovereign are commands; there may be laws that are not wishes of the sovereign but may bind the sovereigns themselves, and command theory cannot properly explain the distinctions between the obligation imposing and power conferring rules that are seen in the legal system.

Hart critiqued Austin’s concept of sovereignty on the point that the idea of sovereignty is a juridical one. Sovereignty cannot be at the foundation of law because it is also partly derived from the law. In other words, it is the law that constitutes what sovereignty is and also prescribes the basis on which the particular ‘identifiable’ sovereign in any given population is to be identified. As explained by Andrei Marmor, before we can say that we have to follow the commands of the sovereign, we have to first have rules that help us determine the sovereign as without constituting the sovereign we cannot possibly know whose commands we are meant to follow. The game analogy of Hart is used to note this criticism of Hart’s theory. The game analogy is the game of ‘We do what the Leader tells us to do’, wherein as per Hart, the proper description of the game would not be that the game consists of doing what the leader tells us to do, but also having some basic rules that first help us determine the leader.

Another criticism that Hart offered on sovereignty concept of Austin was that of constitution of sovereignty on the basis of habits of obedience. Seen from this sense, sovereign was am identifiable individual who was in habit to receive obedience from the bulk of the given political society. Hart critiqued that it is impossible to offer a reductive explanation of legal validity in terms of a sociological conception of sovereignty. Similar arguments can be found in literature, for instance, Dewey argues that Austin’s notion of a sovereign that must be understood in terms of a numerical political body is not consistent with the notion of popular sovereignty in modern democratic societies. He argues that modern societies show that there are popular forces of sovereignty other than the government and that even if sovereignty could be captured in the notion of a numerical political body, the person or persons in whom it is vested is not clear or identifiable always.

Hart emphasised that Austin failed to see that sovereignty is not an individual but an institution. There are two arguments here that are made by Hart, with reference to Austin’s sovereign. The first objection that Hart makes to Austin’s sovereign is that Austin did not see that sovereign is an institution. The second objection that Hart makes to Austin’s sovereign is that like any institution, sovereign is constituted and bound by rules.

Hart proposed the rule of recognition to better Austin’s concept of how law achieved validity (through command of the sovereign). Hart stated that in order to be valid law, it must pass “all the tests provided by the rule of recognition.” The rule of recognition is premised on the internal aspect of obedience, which forms the reason and justification for the conduct of individuals in obeying the law.

Critical appraisal

Just as Hart critiqued Austin’s theory of law, there are others who have critiqued Hart’s approach to Austin and even whether Hart has achieved what he sought, which is, significant improvement on Austin’s theory. One criticism of Hart’s approach to Austin is that he misunderstood Austin, whose concern was with the province of jurisprudence, while Hart seems to be more concerned with the concept of the law, thereby focussing more on the definition of law given by Austin and not going to the core of Austin’s theory before dismissing it as factually incorrect. Austin was focused on the explanation on the working of the law and the domain of the law, whereas Hart’s focus was on the definition and conceptualisation of the law. Therefore, a case is made for Austin in this context that Hart was incorrect in dismissing Austin’s theory as factually incorrect without considering the purpose for which Austin theorised on the province of jurisprudence.

Hart believed that in advancing his critical appraisal of Austin’s theory, he had made advances on Austin’s theory, but in some ways he has been criticised as having not made such significant advances over Austin. Three of these are explained below.

First, just as Hart was critical of Austin’s reductionism, others have also accused him of a similar tendency of reductionism wherein he reduces all law to social practices that are followed by the people. One of the critics, Scott Shapiro argues that all social rules cannot be reduced to social practices because both rules and practices belong to “different metaphysical categories. Rules are abstract objects....Practices, on the other hands, are concrete events.” Therefore, reducing all rules to social practices is a mistake and Hart falls into the reductionist trap that he accuses Austin of, when he makes this mistake.

Second, Hart’s theory of obligation is hardly very different from Austin’s conceptualisation of obligation. Austin used threat of sanction to explain obligation, and Hart is also accused of doing the same in his concept of law. In Austin’s theory, sanction was a fear of punishment, whereas in Hart’s theory sanction comes from the serious social pressure to conform that is ingrained in social rules. Hart argued that those who are subject to social rules are obliged to follow them. It is hard to say how far his theory advances from Austin’s point in this context as social pressure to conform can also have normative force for people.

Third, Hart’s rule of recognition has been criticised as not having made a sufficient enough advance on Austin’s concept of law. In fact, it may be noted that in providing an internal aspect to the rule of recognition, Hart may have actually provided a contradiction to legal positivism or taken positivism back to the natural law theory. This is so because the internal aspect is clearly moral in nature, where people feel that the law is valid and must be obeyed.

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Conclusion

Hart’s criticism of Austin’s theory was based on the argument that Austin had failed to provide a theoretical framework for explaining normativity of law and that Austin had adopted a reductionist approach to law, which did not allow Austin to explain the ways in which laws could be created other than commands. Hart critiqued Austin’s conceptualisation of command, sovereign, and sanction and sought to provide an improved version of the normative theory. Despite these criticisms, Hart seems to have not achieved the kind of improvement on Austin’s theory as he sought to. Hart’s rule of recognition suffered from limitations just as Austin’s command. Hart also based the obligation to follow rules on social pressure, which was similar to Austin’s sanctions. While critiquing Austin’s reductionist approach, Hart also could not avoid adopting a reductionist approach. Therefore, Hart’s criticism of Austin’s theory did not ultimately result into a much improved version of the normative structure and its explanation.

Bibliography
Books

  • Austin J, The Province of Jurisprudence Determined (London: Weidenfeld and Nicolson 1955).
  • Hart HLA, The Concept of Law (Second edition, Oxford: Clarendon Press 1994).
  • Himma K, ‘Hart and Austin Together Again for the First Time: Coercive Enforcement and the Theory of Legal Obligation,’ presented at The Nature of Law (McMaster University May 2011).
  • Marmor A, Philosophy of Law (Princeton University Press 2010).
  • Shapiro S, Legality (Cambridge: Harvard University Press 2011).
  • Journals

  • Dewey J, ‘Austin’s Theory of Sovereignty’ (1984) 9(1) Political Science Quarterly 31.
  • Hardin R, ‘Sanction and Obligation’ (1985) 68(1) The Monist 403.
  • Raponi S, ‘Is Coercion Necessary for Law? The Role of Coercion in International and Domestic Law’ (2015) 8 Washington University Jurisprudence Review 35
  • Waluchow W, ‘Lessons from Hart’ (2011) 5 Anuario de Filosofía y Teoría del Derecho 363.

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