Hart’s Criticism of Older Postivists (especially Austin)

Today’s Outline 1. Austin’s Definition of Law 2. H.L.A. Hart’s Criticisms of Austin and Bentham on the Content of Laws: ie What They Say 3. Hart’s Criticisms of Austin on the Status of Laws: ie What They Are

Austin’s Definition of Law A law is a general command of a sovereign A command is an intimation of a will backed up by the threat of a sanction A sanction is an evil of some sort - however mild A sovereign is a person or body: – to whom the bulk of a given community are in a habit of obedience (for whatever reason), and – Who does not owe a like obedience to any other

Austin’s Definition of Law A legal system is a set of such commands together with permissive laws that cancel, or make exceptions to, such commands

H L A Hart: 1907-1992 English jurist, taught at Oxford from 1945, professor of Jurisprudence 1952-1969 • Much influenced by post-war linguistic philosophy - friend of philosopher J L Austin • Wrote: – The Concept of Law (1961) – Many essays on punishment, liberty, Bentham, etc. • Positivist, but did not rely on a sovereign. • The laws of a system are identified by a basic rule - the rule of recognition of the system

Hart on the Content of Laws Hart argues that the command theory cannot account for the variety of laws in a legal system: – In particular, legal systems contain “power-conferring” rules as well as “duty-imposing” and “liberty conferring” rules – He argues that the command theory cannot account for these distinct power-conferring rules .. – And criticizes arguments of Austin, Bentham and Kelsen that attempt to assimilate them into the model of commands or coercive norms

Power-conferring rules explained: A “power”, as Hart uses the term, is: an ability to bring about a legal change intentionally Examples are: abilities to make a will, to enter a contract, to make a by-law, to enter a judgment • Note: – Rules can confer powers: eg the power to make a will – Rules can also restrict an existing power: By limiting the persons who can exercise it By limiting the manner in which it must be exercised By limiting the circumstances under which it can be exercised

Hart’s criticism of Austin’s nullity argument Austin attempted to explain rules that limit powers by saying nullity is a “sanction” Hart points out nullity is merely a logical consequence of failure to exercise a power: It is automatic, not a sanction imposed thereafter The person who fails is not a wrongdoer The nullity may not be unwelcome