H.L.A. Hart’s legal theories within his work The Concept of Law often emerge from critiques of John Austin’s theories. To Hart, Austin’s theories lack the basic conceptual components of legal rules, and misunderstand the true nature of legal rights. Hart’s critiques of Austin’s command theory and sanction theory of obligation are strong as it expands on Austin’s limited definition of legal rules, addressing issues such as the legal importance of norms, power-conferring rules, and how legal rules themselves generate reasons for action. However, his critique on Austin’s doctrine of sovereignty is imprecise as it misrepresents Austin’s definition of the sovereign and their role in the legal system.
Within The Province of Jurisprudence Determined, …show more content…
Firstly, Hart critiques Austin for incorrectly reducing the legal system to dynamics of coercion and obligation. He states that Austin’s theories are analogous to that of a gunman committing a crime, as a gunman is also a superior giving a command to an inferior with a threat of sanction. The gunman’s command is differentiated from law only because he is not a sovereign and the command is not general. Hence, Hart claims that Austin’s legal system is simply a “gunman situation writ large”, and does not accurately conceptualize how law works (Hart, 1961, p. 19). Instead, Hart distinguishes between the “external” and “internal aspect of the law”. Those that take the “internal view” accept the law as a guiding standard of conduct and reflect on their obligation, while those who take an “external view” are obliged to follow the law due to their belief that there is a sanction (Hart, 1961, p. 89). Hart believes that the “internal view” is accurate as it demonstrates how law generates reasons for action, and few people take an “external view” (Hart, 1961, p. 90). Thus, Austin’s theory does not properly describe how legal rules are used to regulate a population. Secondly, Hart critiques Austin’s command theory as an incomplete conception of the legal system. Hart describes the legal system as a “union of primary and secondary rules”, where primary rules are those that require a subject to perform or abstain from certain actions, while secondary rules allow for the modification of primary rules (Hart, 1961, p. 94). Primary rules are general commands, as Austin’s theory describes, but only covers laws that control the actions of subjects such as criminal laws. Secondary rules, which Hart describes as “power-conferring rules”, give individuals or public offices the legal power to perform certain actions and create procedures, such as the power to create
Within The Province of Jurisprudence Determined, …show more content…
Firstly, Hart critiques Austin for incorrectly reducing the legal system to dynamics of coercion and obligation. He states that Austin’s theories are analogous to that of a gunman committing a crime, as a gunman is also a superior giving a command to an inferior with a threat of sanction. The gunman’s command is differentiated from law only because he is not a sovereign and the command is not general. Hence, Hart claims that Austin’s legal system is simply a “gunman situation writ large”, and does not accurately conceptualize how law works (Hart, 1961, p. 19). Instead, Hart distinguishes between the “external” and “internal aspect of the law”. Those that take the “internal view” accept the law as a guiding standard of conduct and reflect on their obligation, while those who take an “external view” are obliged to follow the law due to their belief that there is a sanction (Hart, 1961, p. 89). Hart believes that the “internal view” is accurate as it demonstrates how law generates reasons for action, and few people take an “external view” (Hart, 1961, p. 90). Thus, Austin’s theory does not properly describe how legal rules are used to regulate a population. Secondly, Hart critiques Austin’s command theory as an incomplete conception of the legal system. Hart describes the legal system as a “union of primary and secondary rules”, where primary rules are those that require a subject to perform or abstain from certain actions, while secondary rules allow for the modification of primary rules (Hart, 1961, p. 94). Primary rules are general commands, as Austin’s theory describes, but only covers laws that control the actions of subjects such as criminal laws. Secondary rules, which Hart describes as “power-conferring rules”, give individuals or public offices the legal power to perform certain actions and create procedures, such as the power to create