2
Hart on Legal Powers and Law's Normativity

In much of the opening half of The Concept of Law, Hart set the stage for the elaboration of his own jurisprudential theory as he first dissected the model of law that had been propounded by the nineteenth-century jurist John Austin. Though Hart at some junctures amplified or amended Austin's model for the purpose of highlighting its strengths in order to reveal ultimately the profundity of its failings, the command theory of law which he recounted and then attacked is closely similar to the theory championed by Austin. On the one hand, while Hart impeached Austin's understanding of law in many far-reaching respects, he did not seek to demolish it altogether. He esteemed Austin and Jeremy Bentham as his two greatest predecessors in the tradition of legal positivism, and he repeatedly applauded their emphasis on the distinction between what the law is and what the law ought to be. On the other hand, notwithstanding his admiration for Austin's positivism and for the perspicuity of Austin's prose and analyses, Hart felt that the command theory of law is overall an impediment to a clear-sighted apprehension of the nature of legal systems. In particular, as I have already suggested in my opening chapter, he objected to the ways in which the command theory obscures the normativity of law. His sundry criticisms of Austin were all aimed at demonstrating the inadequacy of a theory that is so unattuned to the operativeness of norms in legal systems.

Although Austin's presentation of the command theory of law was especially influential during the second half of the nineteenth century and the first few decades of the twentieth century, and although it has remained prominent because of Hart's engagement with it, it is not the sole version of that theory. As Hart remarked more than once in essays written after The Concept of Law (1982, 108-9, 201, 225-7), Bentham had produced a far more sophisticated version of the command theory wherein he had avoided some of the shortcomings which Hart exposed in Austin's subsequent elaboration of the theory. Nevertheless, ingenious and perceptive though Bentham's theory often is, it does not escape the chief vice of Austin's account; that is, it obfuscates rather than illuminates the normativity of law, and it therefore distorts virtually every major aspect of law of which it treats. Hence, had Hart in The Concept of Law come to grips with Bentham's jurisprudential doctrines rather than with Austin's, his general conclusions and quite a few of his specific conclusions would have been essentially the same as those which he reached in response to Austin.

Notwithstanding the superiority of Bentham's version of the command theory, Austin's version of that theory of law is itself somewhat stronger and more resourceful than Hart allowed. I have elsewhere defended Austin against a few of Hart's strictures (1991, 106-12), and I have occasionally sought to highlight some of the virtues of Austin's writings (2013a, 117-19). Nonetheless, I have always readily affirmed the soundness of most of Hart's specific objections along with the general point of those objections - concerning the normativity of law - and indeed I have added some queries of my own about certain facets of Austin's legal philosophy (1999, 98-101; 2013a, 104-17). Thus, although a defender of the command theory of law could successfully parry a few of Hart's specific lines of attack, the upshot of Hart's confrontation with Austin has clearly been the supersession of Austinian jurisprudence by Hartian jurisprudence. Accordingly, while some of my discussions in this chapter will be critical of Hart, they will not be supportive of Austin. This chapter will take as given that, on the whole, Hart vanquished his great legal-positivist forebear.

1 The Austinian model of law

Hart devoted the whole of his second chapter in The Concept of Law to a conspectus of the main elements of an Austinian approach to law, but here a terse sketch will suffice. Austin strove to portray the diverse relationships within any legal system as an array of coercive relationships. The dominant figure in those relationships is the Austinian sovereign, a person or body of people to whom everyone else in a society defers through habitual obedience. Obeyed habitually by everybody else in the jurisdiction, the sovereign does not obey anybody either within or beyond the jurisdiction. In the Austinian model, the relationships between the sovereign and the obedient citizens are akin to the relationships between a gunman and his victims. While the gunman will have issued some behests to his victims, the sovereign will have issued some behests to the citizens who are subject to the sovereign's sway. In each case, the behests are backed by threats of violent measures that will be undertaken against anyone who declines to comply with the directives that have been articulated. Hence, just as the relationships between a gunman and his victims are starkly coercive, so too are the relationships between a sovereign and the citizenry.

Though the Austinian sovereign is a gunman writ large in that all the sovereign's relationships with the citizenry are unalloyedly coercive, Austin recognized that the mandates enacted by a sovereign - that is, the mandates which are standing laws rather than situation-specific directives - characteristically differ quite conspicuously from any typical orders uttered by a gunman. When a gunman bids his victims to raise their hands, he is addressing some particular individuals, and he is directing them to engage in conduct of a highly specific type. Even if the gunman says "Raise your hands" rather than "Raise your hands here and now," everyone involved will recognize that (in the circumstances) the former formulation is to be construed as equivalent to the latter. Moreover, any typical order snarled by a gunman is only ephemerally in effect. If a gunman relieves his victims of their wallets and then flees - or if his effort to rob them is aborted, perhaps by the intervention of a third party such as a police officer - his injunction to the victims about raising their hands will cease to be operative.

By contrast, the mandates introduced by a legal sovereign as standing laws are typically general in two chief respects and are typically in effect for lengthy periods (years or decades or even longer). Their generality pertains both to the modes of conduct for which they call and to the range of people on whom they impose their requirements. Instead of calling for a situation-specific course of conduct with the place and time of performance specified to a high degree of precision - through implicit or explicit indexicals such as "here" and "now" - a standing law that imposes some requirement will typically call for a general type of conduct that could occur at any number of times and places. Likewise, instead of being addressed to particular individuals who are picked out by name or through second-person pronouns, a standing law is typically addressed to a general class of persons such as the class of all citizens.1 Both in their manner of application and in their manner of address, then, most of the mandates enacted by a legal sovereign are general. Similarly, most such mandates are durable in that they retain their status as laws for years rather than merely for seconds or minutes. In their durability as well as in their generality, the laws of an Austinian sovereign differ from any typical orders uttered by a gunman.

Austin was aware of the foregoing dissimilarities between a sovereign's commands and a gunman's dictates, and he took account of them in his model of law. A further dissimilarity between the sway of a sovereign and the sway of a gunman is directly related to the durability of a sovereign's mandates. Whereas the dominion of a gunman over his victims is almost always highly transitory, the dominion of a legal sovereign over the citizenry in the sovereign's jurisdiction is longstanding. Consequently, whereas the submissiveness of the victims to the gunman is transient, the obedience of the citizenry to the sovereign is persistent. Austin characterized the citizens' obedience as habitual. Their obedience, like the submissiveness of the gunman's victims, is rendered in response to threats of the violence that will be wielded against them in the event of their noncompliance. Because those threats are protractedly in effect, the obedience elicited by them is commensurately protracted.

Typically, if not always, the number of people subject to the reign of a sovereign is far larger than the number of people subject to the dictates of a gunman. Accordingly, whereas the continuation of the dominance of a gunman over his victims will normally involve compliance by all of them with his orders (since recalcitrance on the part of the victims will normally result either in their being immediately shot or in the collapse of the gunman's sway), there is greater latitude for some noncompliance with the mandates of a sovereign. Although the habitual obedience of citizens to those mandates must be widespread, it need not be universal within the relevant jurisdiction. By Austin's reckoning, a sovereign can reign even if some citizens persistently manage to flout the sovereign's laws with impunity. Hence, the conditions for the existence of the dominion of an Austinian sovereign are somewhat vague, as Hart made clear: "The question how many people must obey...