This essay will focus on the nature and adequacy of Hart’s objections to Austin’s “command theory of law.” Austin defined the law as “the command of the sovereign, backed up by sanctions.” The three crucial components of this definition are the words command, sanction and sovereign. This essay will analyze, in turn, the scope and meaning of each of these terms, as envisioned by Austin, and Hart’s criticism of each of these conceptions.
Austin believed that law is a species of command. He further defined a command as “an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case he disobeys.” Furthermore, the person to whom the command is given is under a "duty" to obey it, and the threatened harm is defined as a "sanction."
According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal systems have laws governing the formation and implementation of contracts, of wills, marriages and other executory instruments. Hart calls these types of laws “power conferring rules,” and argues that they are less in the nature of orders backed by threats, and more in the nature of rules creating a framework within which individuals can define the scope and limit of their rights, obligations and liabilities.
Hart also considers another variety of laws, laws which define the scope and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and govern the functioning of governmental institutions. He argues that it is impossible to view these laws as mere orders backed by threats either.
Attempts, however, have been made to assimilate power-conferring rules within the broad ambit of orders backed by threats. According to the first of these theories, the nullity that is a consequence of not complying with the framework established by power-conferring rules is the Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in a criminal statute, which is more in the nature of an order backed up by threats, the sanction is necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an order that prohibits something without imposing a sanction); however, in the case of power-conferring rules, the provision for nullity is part of the rule itself. For instance, it would be impossible to conceive of the provisions that govern how to make a valid will without conceiving that the will cannot exist without these provisions. Hart has a number of subsidiary objections as well, such as nullity not always being a source of evil (for instance, to the judge who rules without jurisdiction).
A second theory argues that power-conferring rules are not genuine laws. This theory views as all laws as directions to officials to apply sanctions in case of non-compliance. A power-conferring rule, therefore, would be viewed as a direction to the requisite official not to confer validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues, however, that such a theory achieves uniformity at the high price of distorting the true nature of laws. For instance, the point of criminal law is to establish certain standards of behaviour, which the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the system breaks down. It is therefore misleading to consider criminal law as directions to officials to apply sanctions. The same logic applies to power-conferring rules as well.
The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart points out, the word “command” implies a top-down stable hierarchy of men, with rules being purely other-regarding. However, this is not true in modern legal systems, as legislations often have a self-binding force. In an attempt to respond to this, it has been argued that a legislator has two personalities: his legislative personality, which gives the command, and his ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a complicated device is unnecessary to explain the self-binding nature of legislation. A legislation can be viewed as a promise, which creates obligations upon the promisor. And in any event, much of legislation is done under the ambit of pre-existing rules of procedure, which bind the legislators.
Hart’s third objection to Austin is with regard to laws such as customary laws, whose mode or origin excludes them from being treated as commands. To this, it has been argued that the validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are implementing customary law, and the legislature does not repeal such laws, then this might be said to be an implied command that customary law is to be followed. However, Hart argues that absence of objection does not mean implied consent. It could equally well mean a lack of knowledge, or a lack of awareness, or numerous other reasons.
On the three grounds of content of laws, range of application, and mode of origin, Hart rejects the idea that law is merely an amalgamation of coercive orders backed up by threats.
The third important prong of the Austinian definition is the term “sovereign.” Austin defines a sovereign as “someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone.” Hart’s criticism is directed both at the idea of “habitual obedience,” and at the idea that the sovereign is an “uncommanded commander” of the society.
Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to explain the continuity of laws. Mere habits of obedience to orders given by one legislator cannot confer on the next legislator any right to succeed the old, or to give orders in his place. Why is the law made by the successor to legislative office already law before even he has received habitual obedience? To answer this question, it becomes essential to distinguish between a habit and a rule. Rules require not only convergence of behaviour, but also convergence of attitude. That is to say, rules are viewed as standards of behaviour, where deviance is considered as meriting criticism.
Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually obey him? Once again, this requires us to replace the notion of habits of obedience with a concept of rules that delineate rights of succession.
Hart’s final objection to Austin is that the sovereign does not possess, as Austin believed, a “legally untrammeled will.” Most modern legal systems have legal limitations upon the power of the sovereign (and this is not inconsistent with his supremacy within the legal system as the highest known legislative authority). Recognizing such a problem, Austin had argued that in democracies, it was the electorate that formed the sovereign. However, according to Hart this leads to the absurd conclusion of the “bulk” of the society habitually obeys itself. It may be argued that legislators make rules in their official capacity, rules which then apply to them in their personal capacity. However, the very notion of official capacity presupposes the existence of rules that confer such official capacity. This, therefore, is again incompatible with the Austinian idea of sovereignty.
On all these grounds, therefore, Hart rejects Austin’s “command theory of law” as sufficient to explain the legal systems of modern societies.