HART's Criticism of Jurisprudence

The OBT Theory 2016-17

INTRODUCTION

Herbert Lionel Adolphus Hart (1907-92) was a British

philosopher who was professor of jurisprudence at the
University of Oxford. His most important writings included Austin’s theory has been the
subject of cogent criticisms for
Causation in the Law (1959, with A.M. Honoré), The Concept of
many years, with HLA Hart being
Law (1961), Law, Liberty and Morality (1963), Of Laws in General
the most prominent critique. Hart
(1970), and Essays on Bentham (1982). tried to linguistically criticize
H.L.A. Hart, in 'Concept of Law' sought to provide a Austin’s theory and has made
every attempt to emphasise that
positivist account of law that at once destroyed Austin’s
the OBT theory does not fit in
central concept- the command theory of law. 'Concept of
with the modern complexities.
Law' was a step by step effort to provide an account of the This notion of command becomes
nature of law that i) rejected the notion that law’s moral force even more rarefied in the writings
was grounded in morality, and having done so, ii) provided an of H.L.A. Hart who, for all his
analytic account of the criteria of legality- the criteria a norm differences with Austin’s theory
must satisfy in order to count as a legal norm. (which he considered incorrect in
many aspects), compared the
Whereas the command theory fits absolute monarchies and command of the sovereign to be
criminal and tort law pretty well, Hart thinks Austin cannot analogous to the threat of a gun.
do justice to the complexity of modern laws and legal systems.
Hart has several worries about the command theory; even if Austin's theory can avoid incoherence, Hart
thinks he achieves consistency and uniformity at the price of distortion.

It is argued that Hart has, to a large extent, misunderstood Austin’s theory and/or the social context during
which the theory was developed. As Meyerson noted, Austin’s aim was not to show what the law is but what is law;
to insist that ‘what the law is’ is one question, ‘what the law ought to be’ is another. It is also argued that Hart
has deliberately misinterpreted Austin’s theory in order to criticize it linguistically. We shall discuss all the
significant criticisms made by Hart and also deal with the possible defences put forward by jurists like
Cotterell.

HART’s CRITICISMS

*SOVEREIGN*

1. Gunman Situation:

Hart argues that Austin’s theory cannot distinguish between a legitimate government and an armed robber.
Hart criticized the OBT theory by comparing it with the ‘gunman’ situation where the sovereign was acting as
the gunman holding a gun on its subjects’ head ordering them to do what it wishes as if ordering ‘give me
whatever you have or else…’.

However, Austin can be defended saying that this so-called gunman or robber is not wearing the hat of a
political superior neither was he being ‘habitually’ obeyed and so it does not satisfy the conditions to be called

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The OBT Theory 2016-17

a sovereign. Thus, the gunman did not have any legal authority to issue orders nor did the people have any
obligation to abide by his commands. Furthermore, whereas the gunman only has temporary superiority over
its victim, laws have a ‘standing’ or persistent characteristic.

2. 'Being obliged' and 'being under an obligation'

Probably the most famous instance in The Concept of Law is the difference between 'being obliged' and 'being
under an obligation'. Our linguistic intuition is this- when ordered to hand over money to a gunman, we
might say that we are 'obliged' to do so, by the force of circumstances, but we would not say that we were
'under an obligation' to do so. By attending to our linguistic intuition here, we see that our different
willingness to use these two expressions distinguishes two different social situations.

Thus, to explain the matter further we can compare the order of a gunman to that of a tax collector. For
example, if a gunman orders you to hand over money to him, you are being 'obliged' i.e. forced, but when a
tax collector orders you to pay tax it becomes an obligation i.e. duty/responsibility, as a concerned citizen to
pay tax to the state. Further, the gunman orders without any valid legal authority whereas the tax collector has
the requisite authority delegated by the state to act on its behalf.

3. Habitual obedience

According to Hart, ‘habit’ is something people tend to do regularly in their life e.g. having tea in the morning.
Hence, in a practical world, non-compliance with habit must not render any punishment upon anyone. As a
result, since obedience need to be merely habitual, people have the option not to obey the commands.

In this regard, Hart has also put the notion of ‘internal and external’ aspect of law. The internal aspect is
where a person is required to ‘critically reflect’ upon the law and 'external aspect' comprise of the observable
regularities or knowledge of law. Hence, Hart believed that since Austin’s theory requires mere ‘habitual
obedience’ people may not critically reflect upon the law i.e. since not abiding by a habit should not render
any infliction of punishment, people will have the option of not following the sovereign and so even if people
will have the knowledge of law (external aspect) they may choose not to act upon it (internal aspect).

4. Continuity of legislative authority:

By this Hart meant that if REX I, the sovereign, for example, dies and REX II acquires power then our
habitual obedience, at least for the initial period, will still lie with REX I since habit cannot change so quickly.
Then if REX II is not habitually obeyed by the bulk of the population, will his laws still be valid? This is what
Hart referred to as ‘initial period of trouble’. This occurs because there is no law of succession in Austin’s
theory. However, Austin never referred to the sovereign as only a person. It can be a single person or a group
of persons which means it can be an institution as well. As such no matter whether REX I or REX II is in
power, the habitual obedience always lies with the King or the state itself. However, Austin failed to give any
definition of this ‘institution’.

But, says Hart, let us suppose that within a state, one ruler is followed by another. How may we account for
the continuity generally observed and the fact that laws may outlive the lawmaker? Citizens were ‘in the habit’

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of obeying their first ruler. At what stage is their habitual obedience ‘transferred’ to his successor? When may
it be said that the citizens become ‘habituated’ to the power enjoyed by the new ruler? Hart’s answer involves
a perusal of the rules which ensure that there shall be an uninterrupted movement of power from one ruler to
another.

5. Persistency of law:

Hart argues that from Austin’s OBT theory of law, it seems like the commands of the sovereign are valid till
its lifetime. However, Austin did talk about ‘tacit approval’ where he argued that the new sovereign, by not
repealing the old Acts, tacitly approves them. Hart, as expected, denied. He argued that legislators do not
necessarily go through the process of tacit approval but just accepts the law since in any mature legal system
there are ‘rules’ of validation. Hart also appears to have failed to appreciate that silently accepting things,
which are facilitated by rules, may also amount to a tacit approval.

6. Indivisibility of the sovereign:

According to Austin, sovereign must be indivisible but Hart argued that it does not fit into the modern
context of federal states like that of India or USA where the so-called sovereign is largely divided. Especially
in India, we can see that there are local governments e.g. government of Uttar Pradesh, Madhya Pradesh,
Maharashtra, etc. along with a central government based in Delhi. Hence, it must be reiterated that the
modern sovereign is largely divided. Similarly, in Bangladesh, the sovereign is largely divided into various local
governments.

7. Application of law

The range of application of law is not the same as the range of application of an order backed by a threat. In
Austin's scheme the law-maker is not himself bound by the command he gives; the order is directed to
others, not to himself. It is true, Hart concedes, that in some systems of government this is what may occur.
However, in many systems of law, legislation has a force that is binding on the body that makes it. So, since a
law-maker can be bound by his own law, the Austinian concept of sovereign cannot be of universal
application and so fails.

A supporter of Austin may attempt to overcome this objection by seeking to distinguish between the law -
maker in his official capacity and the law maker in his private capacity. In the official capacity, he makes the
laws while in the private capacity he is bound by those laws just like any other citizen. Hart dismisses this
view of the law-making process as failing to represent what actually occurs. What the legislator does, he says,
is to exercise powers conferred by rules, within the ambit of which he himself may often fall.

8. Illimitable power of the sovereign:

Austin said sovereign would have illimitable power which is in line with A.V Dicey’s ‘ability to make or
unmake any law’. Hart argued that Austin must have confused between legal and political sovereignty. The
political sovereignty lies with the people but the legal sovereignty lies with the state. When we examine states

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in which no one would deny that law exists we find supreme legislatures the powers of which are far from
unlimited.

For example, the competence of a legislature may be limited by a written constitution under which certain
matters are excluded from the scope of its competence to legislate upon. Thus the conception of the legally
unlimited sovereign misrepresents the character of law in many modern states.

In the UK, the Parliament has to go through eleven stages before passing a legislation. UK’s sovereignty is
further affected after its entry into the EU. Reference can be made to the Factortame case. Thus, it is
evident that the sovereign does not have illimitable power in the modern context.

In Bangladesh, the government cannot do whatever it wishes since it has to consider various factors before
taking a decision. For example, it cannot legalise prostitution or marijuana since it might hurt the religious
sentiment of the people and may also eventually lead to the fall of the government. Further, the power of
government of Bangladesh is also affected by its dependence upon its political alliance with various nations
including India and Pakistan.

9. Internal aspect

Austin’s view of the law as ‘coercive commands from a sovereign’ neglects another important social fact of
modern legal systems – namely, that many of the legal officials and some citizens actually accept the law
without being coerced into compliance. This is the ‘internal point of view’ which Hart sought to understand
and which is completely missed by the ‘command’ account of law. The central message of Hart is that law
must be understood from the ‘internal’ point of view. This ‘internal point of view’ is the way of thinking of
someone who treats a legal rule as a reason for action. Austin’s account of law, with its emphasis on coercion,
cannot account for the view of many officials of a legal system who regard the existence of a legal rule as a
‘reason for action’ independent of any threatened sanction for non-compliance.

*SANCTIONS*

According to Hart, the content of law is not like a series of orders backed by a threat. Some laws, Hart
concedes, do resemble orders backed by threats, for example, criminal laws. But there are many types of law
that do not resemble orders backed by threats, for example, laws that prescribe the way in which valid
contracts, wills or marriages are made do not compel people to behave in a certain way.

The function of such laws is different. They 'provide individuals with facilities for realising their wishes by
conferring legal powers upon them to create, by certain specified procedures and subject to certain
conditions, structures of rights and duties. Such laws are better regarded as power-conferring rules instead of
being duty-imposing.

Nullity as a sanction: According to Hart, nullity may well not be an 'evil' to the person who has failed to
comply with some requirements (for example, as where a child who finds that a contract he has purported to

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enter into is not enforceable against him); where a

measure fails to become law because it is not passed by
the requisite majority, this failure cannot meaningfully be
thought of as a sanction.
Hart argued that nullity cannot amount to a sanction but
Austin in his theory stated that sanction can be minimal.
Hence nullity of wills, contracts, etc. can amount to a
sanction; loss of expected advantage or disappointment.
Even in case of judges, when their decision is overruled
by a higher court, they incur sanction in their ‘official
capacity’.
Criminal laws fit Austin’s model the best, but
criminal laws can apply to everyone, legislator
and citizen alike. That doesn’t fit with Austin’s
contention that laws are addressed by superiors
to inferiors.
Some legal systems incorporate custom into their
legal systems. That is, they recognize customary
practices as making up part of the law even
though no sovereign created those customary
practices.

Do we always follow law in the fear of sanctions?

Hart argued that not everyone every time follow law for the fear of coercion. Some abide by law because of
social pressure or to avoid social humiliation whereas others follow law because they treat legal rules as a
‘reason for action’. This is what Hart referred to as ‘internal’ point of view of law.

*VARIETY OF LAWS*

The rules created by a legal system are of various types, some of which simply will not fit into the command
theory. It is true that the criminal law and the law of tort have some analogy with the theory of law as
coercive orders backed by threats, however, there are other varieties of rules which do not because they
perform a different social function.

1. Power conferring rules/ rules of facilitation:

Hart alleges that Austin’s theory does not accommodate variety of laws which comprise of power conferring
rules/ rules of facilitation e.g. laws relating to contracts, wills, marriage, etc. Such laws do not
order/command us to do anything rather they provide us with the option to ‘change our position’. Hence, we
may or may not exercise the option and the state does not impose a sanction.

Legal rules defining the ways in which valid contracts or wills or marriages are made do not require persons
to act in certain ways whether they wish to or not. Such laws do not impose duties or obligations. Instead,
they provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to
create, by certain specified procedures and subject to certain conditions, structures of rights and duties within
the coercive framework of the law.

These power-conferring laws are not confined to private individuals. There are rules which allow officials of
government or the legal system to change laws, to create laws, and to enforce laws. All these cannot b e
understood as a species of command backed up by threats in the event of disobedience. They will constitute
what Hart calls secondary rules.

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The radical difference between rules that confer power and those that impose obligations is that a failure to
comply with a criminal law amounts to ‘breach’ or ‘violation’ of one’s duty and is thus regarded as an
‘offence’; on the other hand, a failure to comply with, say, for example, to have two witnesses for a will as
required by Wills Act will not render any punishment as such failure does not amount to an offence. Instead,
the only sanction, if at all, that is faced is ‘nullity’.

This means not all laws carry sanctions with them. There are laws that do not work by imposing sanctions.
These are laws that make it possible to do things like vote, pass a law, or make a contract. Those who fail to
comply with these rules aren’t sanctioned. They just failed to vote, make a law, or make a contract.

2. Judge-made laws:

As far as judge made laws are concerned, Hart argues that judges also make laws but are they commands of
the sovereign? Judges do not satisfy the conditions required to be sovereign but they still make laws. In the
UK, judicial law making has been a regular phenomenon e.g. R v R; Pepper v Hart. However, Cottrell
defended Austin saying that the sovereign has delegated its law making power to the judiciary by ‘tacit’
approval; the sovereign has delegated the law making power to the judges and by not repealing the judge-
made laws tacitly approves them. Freeman also points out that Austin himself saw judicial law making as
inevitable and considered it qualitatively better than statutory law. Austin’s critics have conveniently
overlooked this point.

CONCLUDING REMARKS

We have dealt in some detail with Hart's attack on the Austinian theory of law for three reasons. First,
because it constitutes probably the most rigorous and comprehensive analysis of the command theory so far
undertaken. Secondly, because Hart's very criticisms throw light on the nature of law. At the end of the attack
Austin may lie in ruins, but we feel that we have obtained insights that we should not otherwise have gained.
Thirdly, because by showing a principal weakness of Austin to have been his failure to take account of the
part played by rules in any legal system, Hart paves the way for the presentation of his own concept.

It is worth noting that Hart may have failed to appreciate the context or the social circumstances considering
which Austin prepared his theory. It was during the peak of British colonialism when Austin developed his
theory and so at that time various modern concepts e.g. democracy, freedom of speech, minority rights, etc.
were still considered vague and unrealistic. Hence, it would be too harsh to claim that Austin failed to
understand these concepts, rather it must be understood that no such concepts existed during his time.
However, Hart stated that historical and social conditions prevailing at the time he was writing cannot be
used as an excuse for the flaws in the OBT theory since appreciating a theory does not require it to be located
in any historical or social conditions.

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