Phil 155 - Anderson
H. L. A. Hart’s Critique of Austinian Positivism
1. Austin’s analogy between law and a gunman who issues orders backed by the threat of sanction is misleading in several respects:
- A gunman doesn’t need any special authority to execute his commands effectively; the victim needn’t believe the gunman has the right to give orders. But a legal system would not be effective without the belief (of most of the populace) that lawmakers are authorized to make the laws.
- The gunman’s orders are usually unique, one-time occurrences, addressed to a specific party. Laws are general in the sense that they are addressed to the whole populace (or some portion thereof) and require a certain general kind of behavior.
- Many legal rules do not impose obligatory duties on persons, they confer powers on them to facilitate achievement of their aims, e.g., to make contracts, wills, form associations, acquire property, etc.
- A gunman cannot give orders to himself, but the criminal law applies to lawmakers as well as the public.
2. Austin’s notion of sovereignty and its role in a legal system is mistaken.
- A society with an effective constitution would not have a supreme sovereign in Austin’s sense. A constitution limits the power of the supreme lawmaker.
- Nor would a society in which the supreme lawmaking power is the electorate have a sovereign, since they would be giving orders to themselves.
- Even if a society had an Austinian sovereign, the legal system would lack continuity every time the sovereign changed hands. Laws do not cease to be valid merely because a new set of officials take office.
- The sovereign in a modern legal system is not a person but an office or an institution. Offices are created by rules, not mere force. The rules are not mere orders backed by threats of sanction; they empower or authorize decisions by public officials.
- Although there need not be any legally unlimited power in a society to give rise to a legal system, Austin is correct in seeking to determine some criterion for what is to count as law.
3. Austin’s theory cannot explain the law’s normative force or authority; the idea that a valid law gives us a reason for acting independently of its moral merits. It cannot be elucidated in terms of mere commands and habits of obedience. Normative rules impose obligations, which is not the same as the gunman who simply obliges his victim to act.
- Viewed internally, it is an essential aspect of an obligatory rule that the agent believe that conformity to the rule is justified, not merely prudent. Their attitude is that the rule prescribes ceterus paribus an appropriate standard of conduct. Hence, deviations by one’s self are followed by self-criticism; deviations by others are met with disapproval.
- Viewed externally, one can only ascertain that the rule is effectively followed and that deviations are met by the disapproval of others along with, perhaps, sanctions.
- Legal and moral rules are differentiated from rules of etiquette, fashion, games, etc. in being of greater importance, believed necessary to social life, and entailing the possibility of conflict with self-interest.