Abstract: This essay critically examines Hart's objections to Austin's "command theory of law" and its adequacy in explaining modern legal systems. Austin defines law as the command of the sovereign, backed by sanctions. Hart challenges this definition on several grounds, focusing on the concepts of command, sanction, and sovereign. He argues that Austin's theory falls short in accounting for power-conferring rules, laws governing judicial and legislative power, and customary laws. Hart contends that law cannot be reduced to mere orders backed by threats. Moreover, he disputes the notion of habitual obedience and the untrammeled will of the sovereign. Through a comprehensive analysis of these objections, Hart rejects Austin's command theory as a sufficient explanation for contemporary legal systems. This abstract summarizes the main points and contributions of the essay, shedding light on the complexities of law in modern societies.

Introduction

The nature and adequacy of Hart's objections to Austin's "command theory of law" are the central focus of this essay. According to Austin, law can be defined as "the command of the sovereign, backed up by sanctions." This definition emphasizes three crucial components: command, sanction, and sovereign. This essay will delve into the meaning and scope of these terms as outlined by Austin, while also examining Hart's criticisms of each concept.

Austin's Command Theory of Law

Austin's conception of law centers around the notion that it is a form of command. He defines command as "an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case of disobedience." Furthermore, the person receiving the command is duty-bound to obey it, and the threatened harm constitutes the sanction.

Hart's Objections

Hart posits that the idea of law merely consisting of orders supported by threats is inadequate when applied to modern legal systems. These systems encompass laws governing contract formation, implementation, wills, marriages, and other contractual arrangements. Hart identifies these laws as "power-conferring rules" that do not solely rely on orders backed by threats. Instead, they establish a framework within which individuals can define their rights, obligations, and liabilities.

Hart also addresses laws that define the scope and limitations of judicial and legislative power, as well as those conferring jurisdiction and governing governmental institutions. He argues against perceiving these laws as mere orders backed by threats.

Attempts have been made to assimilate power-conferring rules within the realm of orders backed by threats. One theory suggests that nullity, resulting from non-compliance with the framework established by power-conferring rules, constitutes the Austinian sanction. However, Hart contends that the two concepts differ fundamentally. In criminal statutes, which resemble orders backed by threats, the sanction necessarily follows the forbidden action. However, in the case of power-conferring rules, the provision for nullity is intrinsic to the rule itself. For example, the provisions governing the validity of a will are inseparable from the very existence of a will. Hart raises additional objections, such as nullity not always being a source of harm, as in the case of a judge ruling without jurisdiction.

Another theory argues that power-conferring rules are not genuine laws. According to this view, all laws direct officials to apply sanctions in case of non-compliance. In the case of power-conferring rules, they are seen as instructions to officials not to confer validity upon a specific transaction if procedural rules are not adhered to. Hart disputes this theory, asserting that it distorts the true nature of laws. Criminal law, for instance, aims to establish behavioral standards for citizens to conform to, with sanctions serving as ancillary measures if the system breaks down. The same logic applies to power-conferring rules.

Hart's third objection concerns laws such as customary laws, whose mode of origin excludes them from being treated as commands. Some argue that the validity of customs depends on tacit acceptance by the sovereign. If courts enforce customary law without legislative repeal, it may be considered an implied command to follow it. However, Hart contends that the absence of objection does not imply consent but may stem from lack of knowledge or awareness, among other reasons.

Hart's Rejection of Austin's Command Theory

On the grounds of content, range of application, and mode of origin, Hart rejects the notion that law is merely a combination of coercive orders backed by threats.

Austin's definition also relies on the concept of the sovereign, whom he describes as someone to whom the majority of society habitually obeys, while being uncommanded themselves. Hart criticizes the idea of "habitual obedience" as inadequate to explain the continuity and persistence of laws. He argues that habits of obedience to one legislator cannot confer the right of succession to the next legislator or enable them to issue commands. Hart suggests that a concept of rules, requiring both convergence of behavior and attitude, is necessary to explain the existence of laws and their persistence beyond the lifespan of individual legislators.

Furthermore, Hart challenges Austin's belief that the sovereign possesses an unrestricted will. In modern legal systems, legal limitations on sovereign power exist, without contradicting their supremacy as the highest legislative authority within the legal framework. While Austin argued that in democracies, the electorate forms the sovereign, Hart finds it absurd to conclude that the bulk of society habitually obeys itself. Even if legislators make rules in their official capacity, such capacity presupposes the existence of rules that confer such authority, thus conflicting with the concept of sovereignty presented by Austin.

Conclusion

Hart's objections to Austin's command theory of law highlight significant deficiencies in the latter's understanding of modern legal systems. Hart disputes the adequacy of viewing law as a mere amalgamation of coercive orders backed by threats. He argues for the inclusion of power-conferring rules and rejects the notion of law as a command by an uncommanded sovereign. By scrutinizing the content, range of application, mode of origin, and concept of sovereignty, Hart presents a compelling case against Austin's theory. This critique offers valuable insights into the complexities and nuances of legal systems, ultimately enhancing our understanding of law in contemporary societies.

References:

Austin, J. (1832). The Province of Jurisprudence Determined.
Hart, H. L. A. (1958). The Concept of Law.
Hart, H. L. A. (1961). The Concept of Law (2nd ed.).

This Article/Blog is written by Abhinav K Mishra. He is Partner, LexPlex, Adjunct Professor, at Lloyd Law College, Gr Noida, and Doctoral fellow, at UN-mandated University for Peace, Costa Rica. He can be reached at amishra@doctorate.upeace.org

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