Hart’s Criticism of Older Postivists (especially Austin)

Hart’s Criticism of Older Postivists(especially Austin)

Today’s Outline • 1. Austin’s Definition of Law • 2. H.L.A. Hart’s Criticisms of Austin and Bentham on the Content of Laws: ie What They Say • 3. Hart’s Criticisms of Austin on the Status of Laws: ie What They Are

Austin’s Definition of Law • A law is a general command of a sovereign • A command is an intimation of a will backed up by the threat of a sanction • A sanction is an evil of some sort - however mild • A sovereign is a person or body: – to whom the bulk of a given community are in a habit of obedience (for whatever reason), and – Who does not owe a like obedience to any other

Austin’s Definition of Law • A legal system is a set of such commands together with permissive laws that cancel, or make exceptions to, such commands

H L A Hart: 1907-1992 English jurist, taught at Oxford from 1945, professor of Jurisprudence 1952-1969 • Much influenced by post-war linguistic philosophy - friend of philosopher J L Austin • Wrote: – The Concept of Law (1961) – Many essays on punishment, liberty, Bentham, etc. • Positivist, but did not rely on a sovereign. • The laws of a system are identified by a basic rule - the rule of recognition of the system

Hart on the Content of Laws • Hart argues that the command theory cannot account for the variety of laws in a legal system: • – In particular, legal systems contain “power-conferring” rules as well as “duty-imposing” and “liberty conferring” rules • – He argues that the command theory cannot account for these distinct power-conferring rules .. • – And criticizes arguments of Austin, Bentham and Kelsen that attempt to assimilate them into the model of commands or coercive norms

Power-conferring rules explained: • A “power”, as Hart uses the term, is: • an ability to bring about a legal change intentionally • Examples are: abilities to make a will, to enter a contract, to make a by-law, to enter a judgment • Note: – Rules can confer powers: eg the power to make a will – Rules can also restrict an existing power: • By limiting the persons who can exercise it • By limiting the manner in which it must be exercised • By limiting the circumstances under which it can be exercised

Hart’s criticism of Austin’snullity argument • Austin attempted to explain rules that limit powers by saying nullity is a “sanction” • Hart points out nullity is merely a logical consequence of failure to exercise a power: • It is automatic, not a sanction imposed thereafter • The person who fails is not a wrongdoer • The nullity may not be unwelcome

Hart’s Criticism of Older Postivists (especially Austin)