Brickfields Asia

COLLEGE

LLB
UNIVERSITY of LONDON

External Programme

Revision LLB (Part 2)

2024

Jurisprudence & Legal Theory

Module 3
Suggested answer: Austin – Hart critique

Lecturer: Rabinder Singh

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Question 8 Zone A 2020:

“The simplicity of Austin’s theory is its greatest virtue. Nothing is more simple, if
not also more obvious, than the idea that law is the command of the
sovereign. Hart’s critique only complicates matters.”
Discuss.

Question 8 Zone A 2021

‘Austin was right. Law is best defined as the command of the sovereign.’
Discuss with particular focus on the work of Austin.
(for this answer there will be less discussion of Bentham though his works can
be referred to briefly as Austin was his student or protégé)

Question 10 Zone B 2021

Hart may be right that at some very abstract level, law need not be
conceptualised as necessarily coercive. But, as Austin understood, in the real
world, law is inseparable from coercion.’
Discuss with particular focus on Hart’s theory of law.
(for this question there will be more emphasis on Hart’s theory)

Question No. 7 Zone B 2023

‘Understanding the nature of Law is straightforward. It is all about sovereign
power.’
Critically discuss with reference to classical positivism.

This question would essentially deal with John Austin’s command theory as
enunciated in his treatise “The Province of Jurisprudence Determined”
(“PJD”) and its attendant simplicity. The doctrine of positivism laid down by his
mentor John Bentham also needs discussion here, because Bentham’s works
on positivism were not published to the extent of Austin’s treatise in PJD, until
the manuscript of Bentham’s work on the command theory revealed
similarities with the work of his protégé Austin.
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Austin’s definition of law as being the command of a sovereign as the key to

jurisprudence was formed the basis for criticism from certain other jurists, in
particular, HLA Hart at Chapters 2, 3 and 4 of his book ‘Concept of Law’
(“COL”), which also gave impetus for the subsequent development of his
theory of law was the union of primary and secondary rules as the proper
definition of a legal system.

It is fair to describe Bentham and Austin as the jurists who laid down the
foundations of law as being imperative and coercive in nature and
emanating from the sovereign as a command. Nonetheless as is a common
factor with all positivists, Bentham and Austin shared the common view that
the most effective method of analyzing and understanding law is by
suspending moral judgments.

Bentham distinguished between expositorial and censorial jurisprudence

wherein the former lies in the realm of the description of the law whereas the
latter involved evaluation of the moral content of the law which is not the
concern of positivists; description and analysis was a primary concern though
its improvement was another issue.

Nonetheless Bentham was a utilitarian and embarked on a sociological

analyisis on how law can be ordained or improved taking cognizance of the
concept of utility. Even Austin acknowledged that disobedience to evil laws is
legitimate if it would promote change for the good.

Bentham's definition of law is commonly summarised as 'the command of a

sovereign backed by a sanction'. The central elements being:

(a) 'command'—the will conceived by the sovereign is manifestly imperative;

(b) `sovereignty'; and

(c) 'sanction', in the attachment of motivations to compliance in the form

of anticipated consequences.
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According to Bentham the 'obligation' to obey law consisted simply of the

anticipation (primarily the fear) of consequences attached to non-compliance
ie the political sanction, or, to a lesser extent, of consequences following from
compliance.

Thus for Bentham, the psychological reason for compliance by any individual
was the sanction and this gave rise to the obligation to obey the law. As will be
demonstrated below, Austin took a different view on the concept of duty or
being obliged or being bound by the content of the command.

In PJD, John Austin stated that the key feature jurisprudence is positive law: law
simply and strictly so – called or law set by political superiors to political
inferiors.”

For him the factual tests for identifying positive law were: law is a command
(which had inherent in it the power to effect a sanction in the event of non-
compliance), and that the command emanates from a sovereign.

Austin in essence stated that if a political superior expresses or intimates a wish

or desire to a member of society to do or forbear an act and had the power to
inflict evil (or sanction) if the subject did not comply, then the political
superior’s wish or desire was a command.

As for the obligation or duty or bindingness of the subject to the content of the
said command, Austin termed it as being liable to evil (or sanction) if there was
non-compliance. Thus duty (or being obliged or bound) and sanction were
correlated, in that, a duty lay if there was a likelihood of sanction in the event
of non-compliance.

Conversely, if there was a power to inflict a sanction by the political superior,

then a duty would lie. Or to put it simply, according to Austin, command and
duty were connected. Wherever a duty lay, a command had been signified;
and wherever a command was signified, a duty was imposed.
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In other words, the duty of the citizen was from the perspective of the
sovereign and not the citizen. Thus, from this analysis, it is clear that the Austin
differed from Bentham.

Austin did not state that the psychological reason for compliance with the
content of the command was the sanction. The sanction in the case of non-
compliance was thus a necessary defining characteristic of all valid law.

As for the sanction (which Austin termed as ‘evil’) when the duty was broken or
command disobeyed, he termed it as enforcement of obedience, but
punishments were only a class of sanctions. By this, it is evident that sanction
was wider concept and could, according to Austin, encompass infamy and
nullities.

As for the political superior, Austin employed the term sovereign. According to
him a sovereign could either be a person, a body or aggregate of persons. For
him a sovereign could only be said to exist if the bulk of the society was in the
habit of obeying it and the sovereign was not in the habit of obeying any other
superior- the positive and negative aspects of the sovereign. His definition was
less complicated and less superfluous than the definition of sovereign by
Bentham.

For Austin, the sovereign being the political superior, its presence was
indispensable as the source of the command. The sovereign issued valid laws
and there was thus an independent political society. By society political and
independent he meant a society with the political superior which was truly
independent; the word independent did not refer to the society as many
would believe.

The intriguing thing here is that Austin did not state why the habit of obedience
by the bulk of society existed. It could be that there is a myriad of reasons why
people obey the law and Austin did not deem it necessary to delve into
psychological enquiries as Bentham did. It may be through voluntary approval
or fear of death. It is unclear.
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Prior to Austin, Bentham stated that these there are species of laws may be made
upon a delegated basis by subsidiary bodies, and, through the system of
binding precedent (stare decisis) by judges. Bentham explained these
phenomena as acts of 'adoption' and tacit command.

This concept also was also alluded to by Austin. This is because Austin had to fit
judges (or the judiciary) as well as other officials with delegated law-making
powers into his theory. For him judge made law (or delegated law-making
powers by officials) is a form of tacit ordering by the sovereign. The judge (or
official) acts as a deputy legislator and so far as judicial decisions (or
delegated legislation) is not interfered with by the sovereign, this form of law
making was a form of acquiescence by the sovereign and a circuitous form of
command of the sovereign. Thus, Austin had no difficulty with accepting the
idea of judges actually making law.

It is clear that from Austin’s theory (as well Bentham’s), jurisprudence was
premised on pure coercion; the source of coercion being identifiable as the
sovereign either directly or in a circuitous manner. As for custom, Austin also
deemed it to be imperative and existent as a tacit command of the sovereign
prior to any judicial pronouncement. Evidently clubs were trumps for Austin.

The simplicity of Austin’s theory is this: the source of law was identifiable as only
one – the sovereign as the indispensable origin of the command and coercion
being the central feature in ensuring obedience and consequential stability of
the legal order.

According to Manning, Austin’s conception of sovereign is not a legal one at

all: it is pre-legal: “the logical, correlate of an assumed factual obedience”. He
suggests that obedience by bulk of society (the positive aspect of the
sovereign) is not an empirical fact but an assumed fact to validate the
existence of the sovereign. The negative aspect of the sovereign, ie the
determinate superior not obeying any other superior, had to be a factual one
however.
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Hart in in book ‘Concept of law’ (hereinafter referred to as “COL”) concedes

that the jurisprudential debate between natural lawyers and positivists is not
something he intends to embark on in his book as this has been well
documented in the works of earlier positivists, indirectly referring to Benthan,
Austin and Hans Kelsen.

Hart’s methodology in describing a legal system is sociological jurisprudence.

Hart in preface to COL states that he would be pointing out the defects of the
command (or imperative theory), in particular, Austin’s model as the starting
point.

Perusal of Chapters 2, 3 and 4 of Hart’s Concept of Law shows that he has to

a great extent dismantled Austin’s command theory as being an inadequate
description of a legal system and the key to the science of jurisprudence is
somewhat different from what Austin envisaged.

It is Hart’s view in Chapter 2 that Austin’s theory is akin to a gunman situation

writ large and that a sovereign may also be bound by law at least in the rule
of law sense. He states that the gunman addresses the victim face to face
whereas by contrast law is general and addressed to general class of
persons. For him it would also encompass future class of persons if unrevoked;
as compared to the gunman which only has only temporary superiority over
his victim.

It is submitted here that Hart employed the gunman situation writ large with
an assumption that the victim sees the gun. It is submitted that this may not
have be a fair assault on Austin’s theory, as Austin did not expressly
acknowledge that the presence of the sanction or the knowledge of the
ability of the sovereign to impose the sanction, was the psychological reason
for compliance with the content of the command. It’s the ability of the
sovereign to inflict the sanction which lies within its province, which may not
always be equated with knowledge this fact by the victim.
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In Chapter 3 COL Hart demonstrates that not all laws are coercive and there
is another genus of rules which are power conferring on private and public
officials, as the case may be, and which serve a different social function.
These rules are for identifying rules primary of obligation, changing varying or
abolishing them and ascertaining the breach of the primary rules of
obligation. He states that primary rules of obligation are coercive but the
secondary power conferring rules are not, but are mere recipes for creating
duties, either in the private or public arena. To some extent he manages to
dismantle Austin’s preoccupation that all laws emanating from the sovereign
are coercive in nature.

In Chapter 4 COL Hart demonstrates how Austin’s theory fails to account for
continuity of legislative authority and persistence of law. He hones in on part
of the description of the sovereign ie a person. This is because Austin
described the sovereign as a superior which could either be an individual
person or a certain body or aggregate of individual persons;

Hart then gives the example of a king Rex 1 who was assured of habitual
obedience by his subjects. Upon his death, his eldest son Rex 2 takes over the
throne, but has now to patiently wait for the habit of obedience from the bulk
of society as the habit of obedience of subjects to Rex 1 cannot be
translated to a habit in favour of Rex 2. There would thus be a lacuna where
no commands could be issued by Rex 2 until the habit of obedience is
established in favour of Rex 2.

Hart then introduces the concept of a rule of succession as a better

description of Rex 2’s law making powers, in that, if officials accept the rule of
succession, then Rex 2 has the authority to issue commands from day one of
accession to the throne. The genesis of Hart’s piviotal concept of internal
aspect which he amplifies in his later Chapters 5 and 6.
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Hart refers to rules having an internal aspect, ie acceptance by officials as a

standard and a critical reflective attitude to deviation or threated deviation
by any member of the group and the added fact that such criticism is
justified.

Hart then illustrates the issue of persistence of law by reference to the case of
R v Duncan. He explores the fact of how the laws of a previous sovereign
could still remain as law irrespective of it not having been issued by the
current sovereign. He then enunciates the idea that if there is acceptance by
officials vide the internal aspect that laws made by a previous legislator are
still valid unless amended or revoked by the current legislator, the issue of
persistence of law under a current sovereign can adequately be explained in
contrast to Austin’s assertion that there must be a habit of obedience to a
current sovereign.

Hart thus illustrates that a better description of a legal system, is in terms of

rules, especially when officials of the system accept it as a standard and use
the said yardstick in identifying acts which are legally valid.

He also demonstrates how nebulous Austin’s definition was in relation to the

ultimate location of the sovereign when Austin identified it with the
electorate. Hart wry remark is this – it would then lead to the nonsensical
conclusion that the bulk of society is in the habit of obeying itself. Hart further
demonstrates that to have an electorate, you need rules, so the electorate is
also bound by rules; so where do these rules come from?

In is ultimately in Chapter 5 of Concept of law that HLA Hart embarks on his

enterprise of describing a legal system from a sociological stance. Hart
reiterates that the simple model of law as the sovereign’s coercive orders fails
to reproduce some of the salient features of a legal system. He states that
that the root cause of this failure is that the ideas of orders, obedience, habits
and threats do not include the idea of a rule.
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Hart then introduces the word which is common in Englishman’s parlance of

daily conduct in society – the concept of a rule. He explains that there thus
exist two types of rules, firstly the primary type where human beings are
required to do or abstain from certain actions ie duty imposing rules.

The second type of rule differs from the first in that for the secondary type of
rule its main function is to introduce of new rules of primary type (vide
legislature or courts), modify old ones or in various ways determine their
incidence or control their operations. By this description the secondary rule
confers powers on public officials and sometimes on private individuals.

For hart it is the combination of these two rules which is actually, what Austin
wrongly claimed as orders backed by threats, namely ‘the key to the science
of jurisprudence’.

Hart then goes on to explain the nuance between being obliged in the
Austinian sense and the word obligation, which is a word which describes his
primary rules. According to Hart, the statement that a person was obliged to
obey someone is a psychological one referring to beliefs and motives with
which the action was done. Having an obligation to do something does not
necessarily encompass facts about beliefs and motives.

It is Hart’ assertion that deviation to rules is not merely grounds for a prediction
that hostile reaction will follow but also a reason or justification for such
reaction or applying sanctions, and feeling obliged and having an obligation
are semantically poles apart.

Hart states that a command is not to invoke fear bit is essentially the respect
for authority. The word authority is introduced by Hart here and would later
be utilised by him to primarily describe the rule of recognition as being the
authoritative rule which determines legal validity and the foundation of a
legal system as elaborated in Chapter 6 of COL.
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Hart states rules are conceived and spoken of as imposing obligations when
the general demand for conformity is insistent and the social pressure
brought to bear upon those who deviate or threaten to deviate is great. Hart
stresses that the seriousness of social pressure behind the rules is the primary
factor determining whether they are thought of as giving rise to obligation.

Hart then refers to a hypothetical society called the ‘pre-legal’ society, being
a society before a legal system is born, and focusses on the defects of the
pre-legal society as being a sociological justification for having a legal
system. According to Hart, in the life of a society where the only means of
social control is the general attitude of the group towards its own standard
modes of behaviour characterised as rules of obligation, such a social
structure can be referred as one as being regulated by primary rules of
obligation.

Hart states that the following social defects would emasculate the continued
existence of such a society:
(a) Uncertainty (no other rules for settling doubts e.g. by reference to an
authoritative text or official exist);
(b) Static character of the rules (the only mode of change would be the slow
process of growth due to passage of time); and
(c) Inefficiency of the diffuse social pressure by which the rules are
maintained (no agency specially empowered to ascertain finally and
authoritatively the fact of violation).

Hart then advances into a modern-day legal society, wherein these defects
are remedied by supplementing the primary rules of obligation with
secondary rules. Hart states that he intends to show why law may most
illuminatingly be characterized as a union of primary rules of obligation with
such secondary rules – the definition of a legal system.

Hart explains that the secondary rules specify the ways in which the primary
rules may be conclusively ascertained, introduced, eliminated, varied and
the fact of their violation conclusively determined. The simplest form of
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remedy for uncertainty is the introduction of the ‘rule of recognition’ - a rule

for conclusive identification of the primary rules of obligation – the idea of
legal validity.

In Chapter 6 COL he demonstrates how the rule of recognition has differing

criteria of validity contrasting Austin’s command theory which subscribed to
law only emanating from one ultimate criterion – the sovereign and none
other.

For Hart, the remedy for the static quality of the regime of primary rules
consists in the introduction of ‘rules of change’. In its simplest form such a rule
is that which empowers an individual or body of persons to introduce new
primary rules for the conduct of life of the group and to eliminate old rules (for
example) legislative enactment and repeal.

Hart reiterates as he did in the earlier Chapter 3, that there are rules which
confer powers on individuals to vary their initial positions under primary rules
eg making of wills, contracts, transfers of property and other voluntary
created structures or rights and duties. It is interesting to note that these sub-
set of secondary rules are exempted from the internal aspect when private
citizens avail themselves of such rules.

Hart recommends that the remedy for inefficiency consists of secondary rules
empowering individuals to make authoritative determinations of the question
whether on a particular occasion a primary rule has been broken. These are
‘rules of adjudication’ (identifying individuals who are to adjudicate and the
procedure to be followed). Thus a legal system having rules of adjudication is
also committed to a rule of recognition and judgments will become a ‘source
of law’.

Hart then states that centralisation of social pressure by supplementing

primary rules of obligation by secondary rules which provide centralized
official sanctions of the system occurs in most systems.
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It is interesting to note that the internal aspect being a concept which Hart
expanded on in Chapter 5 of his book, as a necessary condition for a legal
system, is extrapolated into the official arena alone for the secondary rules, in
particular the rule of recognition.

There is no requirement in Hart’s theory that the said internal aspect exist
among citizens for the primary rules and neither is society required to be that
informed intellectually to internalise the rule of recognition. Thus the internal
aspect, in Hart’s essay in descriptive sociology is extrapolated into the
microcosm of society – the official world or arena.

Hart’s definition follows: The legal system would exist if there are just two social
practices, one being the majority of society obeying the primary rules and
the secondary rules being accepted by officials as accepted standards of
behaviour. Hart asserts that it is in the combination primary rules of obligation
with secondary rules of recognition, change and adjudication, we have the
heart of a legal system.

In conclusion, it is submitted that Hart’s description of a legal system remains

faithful to his essay in descriptive sociology. His analysis which is descriptive of
the legal system seems to give a better and holistic analysis of what the
description of a legal system is compared to Austin’s (or Bentham’s) simplistic
version revolving on the command theory. Hart’s description of the legal
system focusses on two different types of rules; primary rules being coercive
and secondary ones being power conferring, and in doing so he manages to
demonstrate that law is not all coercive as Austin dictated.

Of course, Hart is not without critics, the renowned one being RM Dworkin
who believes in law being about evaluation rather than description and that
law is solely about adjudication. It ought to be borne in mind that in the
preface of COL Hart denoted his aim explicitly, that is description of the
municipal legal system in a sociological context.
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Hart did acknowledge that law as a union of primary and secondary rules is
the focal point of the legal system, and as one moves away from the centre,
law has an open texure in which adjudication is a subjective exercise of
discretion. It is submitted that adjudication and interpretation of law in
substance, was not the enterprise Hart embarked on principally.

He was more preoccupied with description which Austin also attempted, and
he had to thus meet Austin on the same page – identifying the key features
of a legal system and not go into the realm of adjudication in detail as well as
evaluation of the substance of the law.

Rabinder Singh
25.4.2024