According to Hart, how does the law

differ 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 differentiate that ‘gunman
situation’ from legal obligations.
I will firstly outline the arguments
Hart employs in seeking to
differentiate 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.
According to Hart, how does the law
differ 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 differentiate that ‘gunman
situation’ from legal obligations.
I will firstly outline the arguments
Hart employs in seeking to
differentiate 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.
According to Hart, how does the law differ 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. Summarized 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 differentiate that ‘gunman situation’ from legal
obligations. I will firstly outline the arguments Hart employs in seeking to differentiate 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 differs
from orders by a gunman because law is of general application. A legal system functions by
directing standard generalized 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.1In 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-off
direction and there is no continuing relationship between the parties “except the short-lived
coercive order”. 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.” 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.5The three
objections concern firstly the content of law, secondly the range of application and lastly the
source of law. The content of laws is different 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.) 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 emphasizes that some laws originate not from conscious-decision making but
from custom and there is therefore no ‘commander’ obliging compliance with his orders.

Having identified these deficiencies 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
different. The former connotes compulsion whereas it is perfectly possible that a person has an
obligation and feels no pressure to fulfil it. Hart illustrates the difference 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. 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 differ from
mere habits through the way they are regarded by the persons subject to the rules. These persons
have internalized them as reasons for acting in a particular way and refer to them when
criticizing deviation from the standard. 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 system. In fact Hart never went that far, 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 significance (or no significance 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 efficiency. It is evident that for a legal system to be effective
the legal rules must be habitually obeyed by significant proportion of people subject to the rules.
The use of coercion to secure conformity and thereby efficiency is claimed to be essential.
Lamond however forcefully argues that the link is exaggerated. 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 law in form of social
pressure that is not prescribed bylaw, such as loss of reputation or boycotts.

Furthermore, law is not necessarily linked to sanctions. I have argued above that it is difficult to
interpret power-conferring laws in such a way even if one accepts nullity of transaction as a form
of sanction. Lamond asserts that “sanction-less legal duties are both fully intelligible and extant.”
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” (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 deficient” (emphasis added).

Schauer argues that in modern legal systems Hart’s “puzzled man” may well not exist or be a
significant 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. In defending his point
Schauer places emphasis on repressive current legal systems: “law exists in North Korea as
well”. 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
fine 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.” 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”. 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 significance 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.