H. L. Hart And John Austin's Command Theory Of Law

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In The Concept of Law, H. L. A Hart criticizes John Austin’s command theory of law and argues for a new framework that interprets laws as rules. As a legal positivist, Hart is motivated to separate the descriptive question of what is from the prescriptive question of what law should be. Despite this, he believes we must also consider the normative aspect to law, which is reflected in the obligation we feel to follow it. With the notion of obligation in consideration, Hart proposes a framework that is a more sophisticated and consistent view of how legal systems work. In this paper, I will argue that - despite the overall usefulness of his framework – he fails to properly address how judicial decisions play a role in the changing and challenging…show more content…
The laws are described as rules, rather than commands of the sovereign, because Hart believes a system of rules gives a more realistic and complete picture of how laws work. A quick observation of existing laws will present us with a wide range of laws that do not neatly present themselves in command form. For instance, power conferring laws, which describe agreements between people such as contracts or marriages, appear to be granting people rights or describing the way people should react to certain circumstances rather than commanding them to behave in a certain way. Furthermore, the command theory does not explain how, in modern representative systems, the rule-makers who issue the commands find themselves bound by them as well. For these reasons, Hart believes that a more appropriate metaphor for thinking about laws is that of rules in a sporting competition. Rules not only direct the players to perform or refrain from performing certain actions, but they also give directions to the umpire or score keeper. Furthermore, players feel themselves bound by the rules. The rules themselves provide a reason to act, not just the fear of punishment as in the command theory. Hart calls this point of view, where the existence of the rule provides an obligation for action, the internal perspective to the…show more content…
They set up the procedures through which primary rules can be introduced, modified, or enforced. Continuing with our soccer metaphor, an example of a secondary rule would be that a red card can be rescinded after an appeal for retrospective review. Hart say that only the most trustworthy and good-willed societies can survive with just primary rules. In reality, our societies are not so idyllic and many problems will arise. Because there would be no systematic method of rule creation, there would be uncertainty about what the rules actually are; the system would be very static, since any changes in the rules would have to occur organically; finally, without a defined adjudication method, inefficiencies would arise from disputes over whether a rule was actually broken. These three problems can be remedied with the introduction of three types of secondary rules, in order: rules of recognition, rules of change, and rules of

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