Hart's Theory

Hart's Theory

When Hart began forming his legal theory a dominant view in legal

theory literature was that law is best understood as the command of a

sovereign to its subjects. The 'command' theory most actively

propounded by, and identified with Austin, explained law as a matter

of commands by a sovereign who is habitually obeyed by others, but who

does not habitually obey others. There are regular patterns of

obedience to these commands, and legal obligations exist insofar as

the failure to obey is regularly followed by the application of

sanctions.

Hart attacks this theory at almost every point. Crucially, he argues

that to take the perspective that legal systems are made up of

commands backed by threats, does not distinguish the orders of a

terrorist or gangster from those of a legal system. The likelihood of

suffering a sanction might oblige me to behave in a certain way, but

it would not impose an obligation on me. 'Law is surely not the gunmen

situation writ large' stresses Hart in his essay 'The separation of

law and morality.' A legal system must surely be somewhat better, than

the rule over a petrified public by gangsters where the general

populace acts out of pure fear of the consequences. One acts in a

valid normative system, because one believes one ought to do so and

not merely because one fears the consequences of acting to the

contrary.

To Hart the underlying fault with Austin's approach is that it fails

to consider the concept of a rule. The elements of Austin's theory 'do

not include and cannot by their combination yield, the idea of a rule,

without which we cannot hope to elucidate even the most elemen...

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.... [6]

Bibliography:

HLA Hart The Concept of Law

Davies and Holdcroft Jurisprudence

BixJurisprudence Theory and Context

NE Simmonds Central Issues in Jurisprudence

Ray Davern's lecture was pretty useful too.

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[1] The Concept of Law p78

[2] MacCormick Legal Reasoning and Legal Theory p.279-86

[3] See The Concept of Law p.204.

[4] So termed becuae Hart's account equates the existence of rules

with a certain kind of social practice.

[5] Raz Practical Reasons and Norms p.56

[6] To be honest, I have not fully understood Kelsen to develop this

argument further. I hope though to show you such a conclusion when I

finally get to grips with all this material. Sorry, but I hope I am

heading the right way with this!!