Hart, Austin, Positivism
Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION
LAW AS A SYSTEM OF RULES
The jurisprudential background
If there is one element lacking in the jurisprudence of Professor John Austin, and one thing central to the legal analysis of Professor Hart, it is the element of system. If Hart is three-dimensional, Austin is two-dimensional even, some might say, monochromatic. Austin's idea of law as a set (he called it a system, but it was but an aggregation, or set) of commands backed by threats of sanctions in the event of their breach, has been criticised (including principally by Hart) as "the gunman situation writ large". Thus, a legislator posits a law which commands people to do such-and-such, and threatens them with a sanction (criminal punishment, civil action) in the event of their breach of the command. Equally, a bankrobber takes a gun into a bank and orders (commands) the cashier to hand over money with the threat (implicit or explicit) of letting the gun off in the event of non-compliance (not handing over the money).
No doubt Professor Austin will have turned many times in his grave at the thought that he is credited only with an analysis of law synonymous with the activities of bankrobbers and of course he would be rightfully justified in his discomfort, for his critics (including principally Hart in The Concept of Law) are simply arguing that fundamental elements of Austin's analysis are synonymous with 'the gunman situation writ large'. Austin most certainly did not set out to arrive at an analysis of law conterminous with the bully-boy situation. He was, however, as with many of his contemporaries in the teaching of law and the philosophy (theory) of law, dissatisfied - even disillusioned - with much of the fairly vacuous and impenetrable material which was being taught (at least disseminated) and learned in British universities when he acceded to the first Chair of Jurisprudence at London University. Austin's was a back-to-basics approach to the analysis of law. Since the late eighteenth century there had, in and derived from Sir William Blackthorne's Commentaries on the Laws of England, been a prevailing ambivalence in the teaching of legal philosophy (jurisprudence) between a variety of natural law doctrines (for doctrines they principally were, as distinct from value-free systems analysis) and an uneasy emergence of something based on positive law.
Hart was critical of much of Blackstone's Commentaries. Indeed, though Hart refrains from saying it in so many words, the Commentaries are largely political in nature. Understandably so, for it would no doubt have been unwise for such a senior legal figure to rock the boat sufficiently to lose his job. Legal positivism had probably been around since Oliver Cromwell's Commonwealth more than a century earlier, along with widespread public dissatisfaction with the 'divine right of kings' being abused to justify the behaviour of an autocratic monarch. But since (at a perhaps surprisingly early stage) the restoration of the monarchy legal positivism was unthinkable (at least in public) for a long time.
Austin, Bentham and Hart
What is most surprising, however, about the legal analysis propounded by Austin and so criticised by Hart, is that it appears to pay so little attention to the earlier writings of Jeremy Bentham. Bentham was a rounded economic, social and legal philosopher and commentator. In the realm of economics he is perhaps best-known for his 'principal of marginal economics' - effectively, though it has never to the writer's knowledge been judicially attributed to him, the basis of the modern distinction, in damages in the law of negligence in tort, between loss and failure to gain (see for instance, Spartan Steel Alloys v Martin [1973] QB 27
In the context of juristic analysis Bentham is perhaps best known for his iconoclastic analysis of rights. Condemning theories of rights as 'nonsense', and theories (perhaps, rather, doctrines) of natural rights as 'nonsense on stilts', he set about an analysis of law based squarely on what is, that is, laid down or posited. Bentham was certainly not immune to any of the external forces which can, and do, impact on the substantive content of positive law, be that content primary or secondary legislation (regulations), judicial decisions or (now) codes of practice. His best known aphorism in the field of legal analysis was, however: "Obey punctually, censure freely." That is, do what the law(s) tell (commands) you to do, if you wish to avoid something nasty, unpleasant or untoward happening to you; but - and this 'but' is critical - you do not have to like that law's content.
Bentham was certainly not suggesting to his colleagues, pupils and readers that they should 'obey punctually, come what may or as any sort of moral imperative. He was simply saying that disobedience to a posited legal imperative would (supposing enforcement processes, criminal or civil, to operate efficiently) result in something you don't like (what Professor Austin somewhat extravagantly referred to as "an evil"). You know that if you exceed the speed limit in a restricted area that you are (especially with the increasing proliferation of sophisticated police cameras) likely to get 'flashed' and likely to pay a fine. With his exhortation to "censure freely", Bentham would surely be horrified by those modern commentators who argue that speeding fines are merely a method of collecting taxes.
Hart and the teaching of jurisprudence
Hart's criticism of Austin's jurisprudence as being based on the "gunman situation writ large" confines itself in The Concept of Law to a critique proper, and never allows itself at any point to smack of an ad hominen criticism of its author. Nonetheless, the absence of a greater influence by Jeremy Bentham's utilitarian and (with it) humanitarian position must surely have sounded an unwelcome note with Hart. After all, Bentham and Austin had intellectual experiences which overlapped in point of time; and the manifest omission, some would say failure (but that was too polite), of Austin to grasp the nettle thrown up by Bentham's work must surely have been regarded by a jurist such as Hart to be a signal omission. It is as though legal theory had regressed, not progressed. Coupled with this (and such is indicated in other works by Hart, including his inaugural lecture Definition and Theory in Jurisprudence) is a genuine jurist's dissatisfaction at the way in which the teaching of legal theory and jurisprudence generally in British universities had allowed itself to be reduced - perhaps even had been reduced - to a rote-learning of Austin's Province of Jurisprudence Determined, or rather of summaries or potboilers of it, in the way of an occupational hazard to those aspiring to practise law and earn money from it.
Sovereignty and 'habit of obedience'
Both Bentham and Austin use the term 'habit of obedience' when describing sovereignty. The authority of the sovereign is inferred from observations of the habitual obedience rendered by the social order. Bentham's expression 'disposition to pay obedience' appears in this context to mean the same thing as 'habit', but smacks more of a reasoned obedience, or acknowledgement of authority, than Austin's 'habit'.
The idea of a 'habit of obedience' can be criticised for its inability to provide an adequate explanation of legal authority and of the authority-based relationships of which a legal system is composed. 'Habit' is appropriate for a statement of factual conclusions based on observation of physical events, but it is inappropriate to explain the reason for which observable regularities occur. Hart gives an account which Austin, in particular, does not, not just of what happens in fact, but of the reason for which it happens. The notion of a 'habit of obedience' represents a weakness in the accounts of both Bentham and Austin. Its relation to a particular sovereign at a particular time leads to its inadequacy as an explanation of the continuous nature of legal authority during the peaceful internal stability of a social order, represented by a number of consecutive government regimes.
The abilities, or powers, and disabilities of the sovereign body as they exist during the regime of that body are necessary considerations in an analysis of the meaning of sovereignty, at any time and in any conditions. The same applies to the rules of succession which have, in the first place, endowed the sovereign or sovereign body with legal authority. Austin fails to give an adequate explanation of either of these essential elements; he speaks simply of a person or a body with habitual obedience and a 'generic title' to succeed. This abstraction is as near as Austin gets to accounts of the nature of legal authority which have been put forward more recently. Lines of succession are factual; the recognition of a legitimate ruler and a legitimate successor are conceptual.
Command, imperative and obligation
Austin describes 'command' thus: "lf you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. For Austin, a "signification of desire" or an expression of will is characterised by the annexation of an "evil" in the event of non-compliance, if the relationship in law between command and sanction is to be present. If a harm is neither threatened nor willed in the event of disobedience, the expression of will does not amount to a command, even if such expression of will happens to be phrased in imperative terms.
Austin observed that law (or a law) has something to do with what is prescribed to happen, with what shall happen, such prescription being the import of the expression or act of will in question. But in order to make it a legal act, something has to be added. For this reason the person or body of persons from whom the command is to emanate is called a sovereign. To account for the element of coercion in law, the sanction is connected in a very simple way with the non-compliance with such a command.
In Professor Hans Kelsen's General Theory of Law and State the same basic elements-act of will and sanction-are treated in a very different way so as to avoid the shortcomings of Austin's theory. Ironically, two of the foremost critics 'of Austin's 'command' theory are fundamentally at variance with one another. Both Professor Hans Kelsen in General Theory of Law and State and the Swedish jurist, Profesor Karl Oloivecrona in Law as Fact base their accounts of the nature of law on some kind of imperative element, but they differ radically in their basic conceptions of law and as to the way in which the basic elements of law are to be arranged and explained so as to produce an adequate account of its nature.
The inadequacy of the over-personalised and inflexible nature of Austin's sovereign is similar in its implications to the role which the notion of a command is made to play in the imperative theory of law. The notion of determinate sovereignty and that of the issuing from that source of commands are both aspects of a desire to find the source of law in terms of a factual description.
The product of the command of the sovereign or political superior is the legal duty. But for Austin this duty is not of prescriptive. The binding force in his notion of duty consists in the occurrence (or at least the factual probability) of actual compulsion, not in legal obligation. The subject of the legal system is obliged b
Extract 1 : PREFACE & WHY POSITIVISM?
Extract 2 : LAW AS A SYSTEM OF RULES
Extract 3 : SUMMATION OF RESPONSE TO DISCUSSION QUESTION
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