AUSTIN V HART

HLA Hart has focused on society rather than the law, in his theory. He sees rules as
sanction less social creations that govern the social conduct. He has tried to clarify the
understanding of laws by explaining the people’s rule following behavior; external and
internal points of views on law; primary rules and secondary rules to cure their defects; and
the concept of ultimate rule of recognition. He has provided a profound criticism of Austin’s
views specially his command theory.

HLA Hart criticized his understanding of John Austin’s command theory in his book
“The Concept of Law”. In order to criticize Austin’s work, Hart has focused on criticizing the
former’s command theory, by terming it as the “Orders Backed by Threats”, and the
Austinian concept of “Sovereign”.

The criticism leveled by Hart on Austin’s concept of “Orders Backed by Threat

(OBT)” has five dimensions.

1. He opines that the concept of OBT is too narrow in approach since it fails to see laws
beyond sanctions. It disregards the civil and declarative laws altogether, while
ignoring the constitutions and the laws governing the law makers.
2. Secondly, the OBT fails to recognize the strong social force behind the customary
laws, the force that is only social in nature and is not backed by threat. These social
rules are often observed more fastidiously than the actual laws backed by threat.
3. Moreover, Austin’s OBT turns a blind eye on the delegation of authority. The OBT
cannot be used to make room for delegation of authority since it treats laws as being
always backed by threats whereas the delegation of authority is a matter of offer and
acceptance. If a delegation of authority is backed by threat, it can never be classified
as delegation of authority, it is simply an OBT.
4. Fourthly, Orders Backed by Threat fail to differentiate between actual and coercive
authority. In order to illustrate this point Hart uses the Gunman example, he states that
a gunman entering a bank with an intention to rob money fulfils all the criteria of
Austin’s “Sovereign” since he has all the means to issue orders and conduct the
threats that he is making, in addition to he himself not following the orders of the state
authority. In order to make the matter clear, Hart has bifurcated authority into actual
and coercive authority he explains actual authority as being properly given to the
officials by the state, having a limited and defined scope and being backed by the
state. Examples of such authority include the authority held by the police and the
doctors. On the contrary, coercive authority is the authority not backed by state and
one that is exercised by individuals who are not officials of the state, thus
implementing their own will. According to Hart, since the OBT does not distinguish
between the actual and coercive authorities, it can lead to rising of multiple sovereigns
and this can lead to evolving of the Hobbesian state of nature where chaos rules and
“might is right” is the norm.
5. The final criticism of Hart on the OBT is that it does not take the rule following
behavior of the people into account. It fails of acknowledge that rules are, most of the
times, followed in social settings and that too without any backing of threat.

Hart’s criticism on Austin’s concept of sovereign is rooted in the use of the word
“habit” by Austin. Austin describes a sovereign as someone being habitually followed by the
populace. Hart opines that a habit is a subconscious routine of an individual and there is no
set criteria for determining the point of initiation of a habit. It is a subjective term that does
not have a quantifiable determination. Hart further says, that since the initiation of a habit is
undeterminable, it is not possible for an outsider to note the exact instant when the sovereign
begins to gain obeyance of the bulk of population. In this way, according to Hart, the three
fold test for Austin’s Sovereign is rendered useless by the use of the word “habit”.

Hart uses the example of Rex 1 and Rex 2 to make his views clear Rex 1 is a perfect
Austinian Sovereign who is replaced by another sovereign termed Rex 2. In this case, Rex1
will lose the habitual obedience by bulk of the people and Rex 2 will gain the same but it is
impossible to determine with precision when this transition takes place and when the “bulk of
population begins to “habitually” follow Rex 2.

It is often criticized that Hart has misinterpreted the Austinian thought and has rather
criticized Austin for his flawed understanding of the latter’s views. Roger Cotterrell is of the
view that Austin’s sovereign in not an individual but a body. This body is habitually obeyed
by the bulk of people even though the individuals that comprise those bodies change. This
view also renders the criticism of Austin’s theory being incompatible with the modern
standards.

Moreover, as far as the change of sovereign is concerned, a counter argument is often

forwarded that changing of a sovereign changes the entire legal system leaving no laws to
affect the incumbent sovereign. In this way, Hart’s criticism on Austin regarding transition of
power being uncertain is claimed to be unjustified.

Fredrick Schauer has also criticized Hart for unnecessary downplaying the role of
coercion in the overall understanding of law. In his Book, “The Force of Law” Schauer sides
with Austin and Bentham in their stance that coercion and sanctions are necessary and
essential to the concept of legal obligation. Hart, in his book “The Concept of Law”, has
taken issue with the coercion based theories of law while forwarding the thought that law is
rather a constitutive force independent of sanction. Schauer objects on the Hartian concept of
coercion being irrelevant to the legal domain and Hart’s focus on the universal properties of
law. Schauer accepts that even though coercion in not an essential feature of every law or
every legal system yet it is very important to understand the concept of law.
HLA Hart

HLA Hart has focused on society rather than the law, in his theory. He sees rules as
sanction less social creations that govern the social conduct. He has tried to clarify the
understanding of laws by explaining the people’s rule following behavior; external and
internal points of views on law; primary rules and secondary rules to cure their defects; and
the concept of ultimate rule of recognition.

Hart opines that the social rules have a more practical binding effect on the people
when compared with the laws made by the parliament. He believes that the urge to fit into the
society as seen in the question “What Would People Think?” is a very strong determinant of
individual behavior and a maintainer of societal order. According to Hart law is a set of rules
rather than being commands with sanctions and are only obligatory in nature. He has
explained that there are two kinds of perceptions of law held by the people, firstly there is an
external point of view which denotes the views of the public at large, secondly there is an
internal point of view that is held by the officials that are implementing the laws. He posits
that the external point of view is the understanding of the legal system that leads to the rule
following behavior of the general populace. On the other hand, the internal point of view in
the view regarding laws that is held by the ones experiencing the inner workings of the legal
system. Hart says that in order to understand the legal system, one has to understand and
adopt the internal point of view regarding law. Hart’s whole theory is predicated over the
concept of internal point of view of law.

Another of Hart’s contributions to the theory of law is his categorization of law into
two broad kinds of rules, (i) primary rules, (ii) secondary rules. Primary rules are the norms
that bind the individuals of the society through rules that deprive them of their base human
freedoms and establish the social order for the society to function in a smooth way. Hart
further explains that the adherence to primary rules leads to three social problems, (i) static-
the rules become frozen in time and do not change with the changing social realities example
of this is when the societal attitude towards recognition of marital rape changed, the law
remained unaffected later till the verdict in R v. R; (ii) inefficient- primary rules do not have a
formal adjudicating setup to look into and settle matters of dispute, an example of this is that
the monarch used to travel his kingdom to settle disputes in the past and there was no formal
system of adjudication; (iii) uncertain- in a primary rule following society the existence,
form, scope and application of the rules is not eloquently clear, this leads to uncertainty in the
society regarding the laws governing it and creates a scenario of anomy. All these defects
slowly lead the society towards the Hobbesian State of Nature.

Secondary rules cure the inherent defects of the primary rules. These rules are also of
three types, (i) change- this rule is a remedy for the defect of static, this can be seen in the
acknowledgment of the rights of the LGBTQI+ community in the global north; (ii)
adjudication- this rules cures the problem of inefficiency, this stands for system for the
appointment of adjudicators; (iii) recognition- it makes good the issue of uncertainty by
formally determining what law shall apply to a dispute at hand.

Hart also gives the concept of Ultimate Rule of Recognition (UROR), rather it is the
crown jewel of Hart’s work. This rule is the threshold that must be achieved in order for a
rule to qualify as a law. UROR is the foremost source of recognition for all the laws that
make up a legal system. It is the most powerful law of the state that runs the overall legal
functioning. Glaring examples of the UROR are the state constitutions or sovereigns. The
difference between Hart’s UROR and Austin’s sovereign is that as per Austin, the sovereign
has to be a person whereas Hart’s UROR can be a person, an entity or a law. Hart does not
allow questioning of the validity of the UROR since this can lead to rising of the Hobbesian
State of Nature. Making the question of validity untouchable could render the concept of
UROR fall prey to the defect of “static,” in order to cure this Hart has proposed for
questioning the existence of UROR only. UROR comes into existence when bulk of the
officials adopt a Critical Reflective Approach (CRA) towards it and when it comes into
existence, there is no question as to its validity. According to Hart the UROR changes when
the officials adopt CRA towards a new UROR and the bulk of officials shift from the old
UROR to the new one.

Hart’s work has been largely criticized for the issues similar in nature to that of
Austin’s work. Just like Austin, Hart does not provide a smooth mechanism for the transition
of power in the society, in case of changing of apex authority, both erase the foot prints of the
predecessors in favor of the successors which discontinues the previous legal system. This
leads to repetition of the mistakes of past. Moreover, Fuller has criticized Hart for the latter’s
stance based on positivism, Fuller argued that morals are inseparable from the laws.

Kelsen has criticized Hart’s concept of UROR by stating that it has the tendency to
fall prey to Hart’s own gunman example because Hart does not allow its validity to come into
question. Kelsen says that by using the indefinite term “bulk” Hart has created a recipe for
disaster where it cannot be made certain which UROR is to be followed if certain officials
revolt against the existing UROR. Kelsen states that his Grundnorm is superior to Hart’s
theory of UROR since it allows the validity of UROR to be questioned and resultantly shuns
any unjust rule. Kelsen says that by allowing comparison of UROR’s in the light of
Grundnorm, and adopting the better one, legal continuity is also secured. Finnis has criticized
Hart on the same premise of morality wherein he states that Hart justifies establishment of
legal order through coercion. Finnis goes to the extent of alleging that by allowing the
officials to determine the UROR as per their standards, Hart has deviated from positivistic
legal norms.

Dworkin’s criticism on Hart stems majorly from the latter’s advocacy of judicial
discretion. Dworkin states in his theory “one right answer” that judges are there only to
interpret and implement the law and it is for the parliament to make laws. Hart says that
matters are of two types, settled and unsettled, he claims that whereas judges have nominal
discretion in the settled or core domain, they have unlimited and unrestricted discretion in the
unsettled realm. Dworkin on the other hand believes that law can never be uncertain, he sees
judicial discretion as a blight on the legal system. He believes that all the matters are settles
and unsettled matters rarely arise, if they arise, only Dworkin’s fictional “Judge Hercules”
has the ability to solve them.