In an attempt to answer the question “What the law is?” Professor J. L. Austin proposes a “Command Theory of Law”. One way of understanding this theory of traditional positivism is to compare it to the famous empires of Medieval Japan. These empires consisted of a single Emperor, or a “sovereign” , that was considered to have the complete obedience of the people in his empire. Another aspect of his authority is the idea that there is no other political figure higher than the Emperor.
With such power and status at his disposal, the Emperor is able to inflict any degree of punishment that he sees fit if his commands are not carried out or followed. In describing the law as being a command backed by threats of punishment for insubordination, Austin is not arguing that any type of command is considered a law. It would be absurd to think a father commanding his son to take out the garbage would be a type of command to be considered a lawyer. Rather, being that laws govern entire groups and societies, the commands must originate from an authoritative source or “pedigree” that the people in the society give obedience to.
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In analyzing Professor Austin’s theory of law, Professor H. L. A. Hart argues that Austin fails to describe the true “essence of law”. Hart views Austin’s command theory of law as no different than a gunman commanding a bank teller to give him the money. In this example, the gunman is in a position of authority (in relation to the bank teller) and is capable of inflicting lethal punishment to the bank teller if his commands are not carried out. Thus, as Hart contends, the bank teller would feel “obliged” to hand the gunman the money for fear of the consequences that may follow if he does not give the money over to the gunman.
It is apparent that the fallacy of such a theory is that it does not accurately describe what the law is and where it comes from. One may extract from such a theory the presumption that the strongest person/group in a particular society will be the one capable of administering commands with threats of punishment. But, as an observer can see in modern society, the administrators of the law are not always the most powerful in the community. For example, the United States, although most of its power is embodied in the President, he does not have complete autonomy over his fellow citizens. Quite the contrary, the President in many respects is accountable to the citizens.
In contrast to this view, Hart proposes that the law is really a system of rules. Hart believes that the idea of rules can be viewed from two different perspectives: the internal point of view and the external point of view. To explain these points of view, Hart provides another helpful example: the different observations of a traffic signal. Hart describes the external point of view as an observer that is “outside of the system” and notices a pattern in the way the cars go, slow down and stop as the traffic light changes colours. Although he notices a pattern in these cars’ behaviours he cannot ascertain the reason for these behaviours. On the other hand, the internal point of view is an observer that “operates within the system”, or in the words of Hart, is “a member of the group”. She understands the red light to represent not just a signal, but a reason to stop. She understands that such a rule guides the behaviours of the majority of society in a uniform fashion, and to cooperate with such rules is to maintain the order of society. Thus, Hart argues, the person must have an internal point of view to fully appreciate the importance of rules on society.
A legal system consists of rules that the people feel they have an “obligation” or a duty to follow. Hart, recognizing the various types of rules, does state that not all rules require the obligation that the law requires. An example he gives of such a rule is the rules of etiquette. Proper etiquette in a society, although it is beneficial, is not of the utmost importance for a society to uphold or require its citizens to feel obligated to follow. Instead. there are three factors that make the rules of law unique: (1) they are attached to extreme social pressure that demand obligation and duty to the rules, (2) they assist in the well-being of society, and (3) the obligation to these rules require individuals to accept the common interest of the society they live in over his/her personal interests.
Expanding on his theory of rules, Hart describes a complete legal system as having two sets of rules: primary rules and secondary rules. The primary rules can be seen as laying out what the individuals can and cannot do. The secondary rules function as the “administrator” of the primary rules. The secondary rules are able to create criteria for what can and cannot be a primary rule, weed out all the unnecessary elements present in the primary rules, make additions to the primary rules, and determine how the rules will be applied.
Emphasizing the importance of the combination of these two sets of rules, Hart urges the reader to imagine a system that is governed solely by the primary rules. One defect of this so-called “primitive community” is the “uncertainty” of applying and distinguishing these rules. No set standard would be in place to distinguish rules that require obligations and rules that do not require them. The secondary rule’s remedy for this defect is “the rules of recognition”. These rules determine which rules can be enforced by social pressure and what rules are considered legally valid. A rule is considered legally valid if it was enacted by some “authoritative” body (i.e. a legislature), if it is a product of the customs of the society, or if it has been established through judicial precedent.
The second defect of this “pre-legal” world is that the rules would be “static”. Society will eventually change over time; therefore, some rules will also need changing. Since there are no laid out procedures as to how rules can be changed, the rules are left to evolve through what Hart calls “the slow process of growth”. Again, the secondary rule provides the necessary solution: “the rules of change”. Here, the secondary rule acts as the “editor” of the primary rules, enabling quick corrections of outdated rules and also allowing for new additions to be added to the set of primary rules.
The last defect of Hart’s incomplete system example is the “inefficiency” of social pressure. Primary rules alone would not be able to layout the procedures for the punishment of rule violations. Rather, the social pressures of the society would hand the administering of punishment over to those individuals or groups that were affected by the violation. Instead of being a system of legality, Hart contends it will become a system of “vendettas”. The secondary rule’s final element that completes a legal system is “the rules of adjudication”. The best way in understanding this remedy is by comparing it to the judicial system that is applied in the United States. Rules in the American legal system lays out who is to hear cases of rule violations and how they are to apply appropriate punishment over the violators. Hart states that these rules are able to incorporate important legal concepts, such as “the concepts of judge or court, jurisdiction and judgement.”
An important aspect of Hart’s theory that deserves noting is the idea of his “pedigree thesis”. Usage of the word “pedigree” seems to make Hart mirror Austin’s theory. But, one should not let mere commonality in word usage mean that both philosophers apply the word in the exact same context. Instead of using Austin’s view of law originating from a sovereign, Hart establishes his rules of recognition as the origin of law. In Hart’s view, the judge is given exceptional authority in determining what rules are primary rules. Such a contention does not seem irrational at all when applied to reality. Judges have gone through specialized legal training and almost all have had much experience as advocates of law. Who else would better fit the duty of discerning what is to be law and what is not? Hart gives a wonderful metaphor of a judge resembling the actions of a referee in a game. They give the final decision as to if a play is considered a score or not. Thus, the courts and their judges could be seen as society’s reference point in determining the validity of a rule as a law. Thus, if a rule has never been endorsed by legal precedent, it would be very difficult for such a rule to gain ground in legal validity.
Hart attempts to show that his theory of law differs from Austin’s view of the law in a way that it lays out a “new and improved” form of positivism. He argues that a complete legal society is comprised of a system of primary and secondary rules. This, he contends, is the true “essence of law”. With these rules, a person is able to understand what the law is (rules of recognition), how it evolves (rules of change) and where it comes from (rules of adjudication). More importantly, in Hart’s view, a person can also explain the reason why a person follows the law (social pressure, maintenance of society, and social interest as superior to personal interest).
After laying out his new and improved positivism, Hart sees it necessary to dwell in an attempt to unravel a very controversial question: Are law and morality connected? Hart begins his discussion by entertaining the idea that there is some overlap between morality and law. One very apparent overlap is in their usage of words, both applying words like “‘rights’, ‘obligations’, and ‘duties’” into their argumentation. Another characteristic that they both share is the way in which they operate without the consent of the people that live under their rules. Hart recognizes that both law and morality utilize social pressure to gain conformity of its bounded people. Also, as a form of governing the people that live under their rules, law and morality deal with events that constantly reoccur in the lives of its people. Under these reoccurring activities, moral and legal obligations attempt to dictate to its people what to do and not do. Such moral codes, like those of legal obligations and duties, require a sacrifice of personal interests that is necessary for the survival of society.
Hart argues that Traditional Naturalism’s simple belief of “what is moral is law” oversimplifies the connection between law and morality. The naturalist argues that all things (animate and inanimate) proceed toward a “specific good—or the end” in which it is uniquely appropriate for that object. Hart contends that such a teleological view brings in too much metaphysics into a very simple fact of life. The main goal of all human beings is Survival. Humans, in their attempt to coexist with their fellow human beings, accept certain rules of conduct that allow for their own survival and the survival of the society they are a part of. Thus, this goal is well served under, what Hart labels, the “universally recognized principles of conduct” that is present in both law and morality. This is what Hart calls the “minimum content” of Natural Law. In essence, Hart’s argumentation is that due to humans’ aim for survival, there is a reason why one should expect certain similar “content” to arise in law and morality. Without such content, the ability of law and morality to best serve human beings would be diminished and people would not pay voluntary allegiance to law and morality. In reaction to this lack of voluntary allegiance, Hart states it would be impossible to persuade people to voluntarily conform. So it can be seen that Hart argues people in a society would expect to see certain contents in their laws and in their morality.
Due to this minimum content, Hart argues that there is a connection between law and morality and it can be seen in 6 forms. Firstly, there is a legal and moral connection of voluntarily obeying the power and authority of the system one lives under. Although, a person need not see him/herself as bound by such a moral obligation. Hart argues that the stability of the system will still be intact if moral obedience to authority does not occur. A second form is that morality has an influence on the law. It seems rational to follow Hart’s argument that it is virtually impossible to determine if the law is really influenced by law. But, if laws have such an influence or not, history has shown that law will survive either which way. A third argument is that judges may use their interpretation of the law to argue some specific morality in their rulings that they deem as helpful or necessary for society. Yet, there is also the counterargument that stresses that judges are unable to apply social moral values because they are blind to them or are unable to apply them correctly.
In support of this counterargument, consider the following example in American Jurisprudence: the justices on the U.S. Supreme Court is in a position to bestow their moral values on to their case opinions. But, there will be cases where it deals with conditions and people that unfamiliar to the justices. Yet, the justices still apply their opinions, although they may be improperly applied or formulated. The fourth form of the law and morality connection is that of the criticism of the law. Following along the lines of the second form, it is Hart’s argument that even if one was to state that a complete legal system requires conformity to some moral standard, the question that would arise is to what type of moral standard would be considered appropriate and to what extent should the legal system conform to such a standard.
Hart contends that regardless of a person’s claim that the legal system must conform to the moral standards, is not necessary for the structured framework of primary and secondary rules. Due to such a framework, moral standards would be unable to alter any of the mechanisms that comprise this framework Fifthly, in dealing with the principles of legality and justice, Hart defines justice as being able to apply some rule of law to a variety of people without prejudice. Because of this definition, it logically proceeds that it is possible to apply an immoral law justly as long as one distributes it to a variety of people without prejudice. Thus, Hart has attempted to display the general idea that if morality was connected to the law there would be no positive or negative effects to law.
Lastly, on the issue of legal validity and resistance to law, Hart draws the line as to where his connection of law and morality ends. To express both sides of the arguments Hart raises the grudge informer cases of Nazi Germany during World War II. On one side, Hart argues that there is the wider Positivist’s concept of law, and on the other is the narrower Naturalist’s concept of law. Hart states that adopting a wider concept will allow a person to take into account all rules that passed the conditions of secondary rules criteria. He warns that such a broad concept allows for a person to take into account the rules that counter and violates society’s morality. Hart states that the main difference between the Positivist’s wider concept and the Naturalist’s narrow concept is that the narrow concept is unable to deal with rules that violate a society’s morality.
Because the Naturalist’s narrow concept is unable to take into account those rules that violated society’s morality, Hart endorses the Positivist’s wider concept. Hart’s main reason for endorsing the wider concept is that nothing is to be gained by overlooking rules that violated a society’s morality. Such an argument is one of common sense. If one is to only look at one side of an argument, that person would lose the important and bigger picture of that argument. For example, if a scientist was to devote her time only to one possible result of an experiment, rather than take into account all the possible results, can she truly state she has given proper legitimacy to her study? Thus, to turn a blind eye to the possibility that there are laws that violate society’s morality, but was or is still a law of society, is to not deal with reality at all. Hart acknowledges the fact that such moral violations are not beneficial for society. So, following Hart’s line of reasoning, the avoidance of a problem in society will not fix the problem that the society has or had.
Hart seems to end his debate with a very clear and persuasive tone. He has shown common sense in not avoiding a rule just because of its abusive elements on morality. For like a scientist, a positivist can use this rule’s special characteristics to study its effects on society and then make a general, unbiased judgement of the rule.
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