HARTS CRITICISM OF JOHN AUSTIN-A CRITICAL STUDY

Submitted to:

Mr. MANVENDRA TIVARI

(Faculty: JURISPRUDENCE)

Submitted by: RANJU

ROLL NO: - 102

Semester: V
Section: C

B.A-LL.B,

Hidayattullah National Law University

Raipur (C.G.)
ACKNOWLEDGEMENTS:
First and foremost, I would like to thank Mr. Manvendra tivari for offering this subject Harts
criticism of John Austin- critical study, and for his valuable guidance and advice. He inspired
me greatly to work in this project. His willingness to motivate me contributed tremendously to
my project. I also would like to thank him for showing me some example that related to the topic
of my project.

Besides, I would like to thank the Hidayatullah National Law University for providing me with a
good environment and facilities to complete this project. Last but not least, my friends who
helped me do this project by sharing their ideas when we combined and discussed together.

RESEARCH METHODOLOGY:

This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information about the topic. Books and other references have been
primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have
also been referred.Footnotes have been provided wherever needed to acknowledge the source.
SANDILJ.. San Diego International Law Journal
Introduction:

During the late eighteenth and early nineteenth centuries the work of Jeremy Bentham and John
Austin developed the positivist analysis of law as well as a utilitarian normative jurisprudence or
theory of legislation. And later professor Hart severely criticized the earlier version and largely
defended a revised version of legal positivism. In the concept of law he primarily develops his
own theory on the basis of a penetrating analysis and criticism of Austins version of legal
positivism. Hart does not criticized the theory precisely as Austin formulated it but considers it
as modified where needed in order to secure that the doctrine we shall consider and criticize is
stated in its strongest form. The view of hart is that even the defect of Austins theory has been
source of further enlightenment on the subject and we shall follow Austin in an attempt to build
up from it the idea of law. He criticized the Austin in the view that laws are only commands that
are restrictive in nature and pointed out that many laws were empowering rather than restrictive
and that legality could exist when citizens or officials internalized legal norms even absent
sanctions, Hart demonstrated the folly of maintaining that the threat of force was a necessary
component of law.
Austins theory
John Austin defined positive law, as distinguished from moral and divine law, as direct and
circuitous command of a monarch or sovereign number in a character of political superior1. His
concept of law is an imperative one which has impressed upon him the powerful position
occupied by sovereign in municipal law. According to him, positive law has four elements viz.
command, sanction, duty and sovereignty. And the sovereign must be illimitable, indivisible and
continuous.2 A sovereign political superior is distinguished as bulk of society are in habit of
obeying the superior and the superior is not in habit obeying any human being. According to him
the law is the rule laid down for the guidance of an intelligent being by an intelligent being
having power over him. And this can only be done by determinate person as indeterminate
person cannot express wishes in the form of command. Law is strictly divorced from justice.
Instead of being based on ideas of good and bad, it is based on the power of a superior. And the
actor is under obligation to perform that duty. An obligation exists when another has the power
and purpose of inflicting an evil on any actor, who fails to confirm to the desired conduct. The
central idea was that law was the command of a sovereign imposed by a sanction. Duty and
sanction are correlative terms; the fear of sanction supplies the principle motive for obedience.
The command was directed at members of the community, who were in the habit of obedience
regarding the sovereign's commands and it is the sanction alone which induces a man to obey
law. According to him there must be a command and command is obliged irrespective of the
personal choice. For him law is the coercive order.

1
M.E. Bayles, Hart Legal Philosophy: An Examination Kulwer Acadmic publishers, Dordrecht, The Netherland
2
V.D. Mahajans, Jurisprudence & Legal Theory (5th edition)2010 Eastern Book Company, Luckhnow
HLA Harts criticism:
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was
Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford.
He authored The Concept of Law and made major contributions to political philosophy. He
approached his concept of law as, where there is law there human conduct is made in some
sense non optional and obligatory. This idea of obligation is at the core of a rule.

Austins sovereign and Command theory of law:

The command theory is premised on the existence of a sovereign commander whose power is
unlimited and cannot be legally limited the idea of command that people obey because of the
threat of the sanction issues an important quality of law the reflective acceptance of the law as
binding by the people to whom it is directed. Hart demolish the myth of tacit command
according to him Austins habit of obedience fails to explain the succession to sovereignty
because it fails to take account of the important difference between rule and habit. Habit only
requires common behavior whereas rule has a internal aspect which people use to judge the
deviation.3

Hart argues that there exists a broad class of legal rules that differ in function and kind from
orders backed by threat. Hart also accepts that many of the rules that compose a legal system
impose duties and as such resemble Austinian commands. For example Criminal prohibitions,
they involve orders to refrain from certain behavior accompanied by threats of punishment for
non compliance. According to hart, Austins theory is exhaustive of orders and threat whereas
according to him social rules are expansive enough to include rules that confer power, such as
the power to alter legal rights by creating a will or getting married4.

Distinction between being obliged and having an obligation

The view of Professor Hart is that significance of rule has been neglected. He uses rule to
distinguish between being obliged and having an obligation.5 He criticized Austins the system

3
V.D. Mahajans, Jurisprudence & Legal Theory (5th edition)2010 Eastern Book Company, Luckhnow
4
90 Tex. L. Rev. 187 Scott J. Shapiro, legality Cambridge, Massachusetts: Harvard University Press
5
V.D. Mahajans, Jurisprudence & Legal Theory (5th edition)2010 Eastern Book Company, Luckhnow
of orders back by threats, and stated the concept of obligation; coercion may oblige one to act in
a certain way but in no way can it suggest that one has an obligation to act in such a manner.

Underlying Hart's criticism is the contention that the command theory fails to distinguish
between the concepts 'being obliged' and 'being under an obligation' to do (or not do) some
particular act. According to Hart, one is said to be 'obliged' to do wherever performance of is a
necessary condition for averting punishment for one's failure to do. On the other hand, one is
said to be 'under an obligation' to do X where one is instead motivated by a 'sense of duty' to do
X, even in the presence of external stimuli compelling the avoidance of

Hart suggests, that Austins theory bases the concept of law on the analogy to the gunman
situation as A gun man ordered B to hand over his money and threatens to shoot him if he does
not do so. In this case B is obliged to hand over the money but he has no obligation to do so. B
believed that some harm or other unpleasant consequences would befall him if he did not hand
over the money to gunman and he handed over the money to avoid those consequences.6

He argued that legal obligations exist not in virtue of the threat of sanction. As he puts it, in the
case of the rules of the criminal law, it is logically possible and might be desirable that there
should be such rules even though no punishment or other evil were threatened7
It is obvious that the idea of a command with its very strong connection with authority is much
closer to that of law than our gunmans order backed by threats, though the latter is an instance
where Austin, ignored the distinctions and misleadingly calls a command. The command is too
close to law for our purpose: for the element of authority involved in law has always been one of
the obstacles in the path of any easy explanation of what law is 8. He states that making law is
different from ordering people to do something.

The difference between the two can be put thus: in the case of the gunman, it is the threat and
only the threat that explains why conduct is in some sense obligatory. In the case of law,
however, there is something else, which exists independently of the threat that makes the action
non-optional. It is true that in the case of law people may expect that failure to comply with the
obligation will bring about some kind of censure or sanction. According to Hart legal obligations

6
V.D. Mahajans, Jurisprudence & Legal Theory (5th edition)2010 Eastern Book Company, Luckhnow
7
H.L.A Hart The Concept Of Law (2nd edition) 1961, oxford university press, New Delhi
8
H.L.A Hart The Concept Of Law (2nd edition) 1961, oxford university press, New Delhi
continue to exist even when we know that they are violated and no sanction is likely to follow, as
in the case of driving at a red traffic light in the middle of the night on a deserted street.9
Obligations arise in the context of social rules. The existence of any social rule depends upon the
widely held belief that people are generally under an obligation to perform or not to perform the
act specified by the rule. Every social rule logically presupposes a distinctive attitude towards the
rule, by accepting it as a general standard of behavior. This attitude finds expression in the use of
such familiar normative language as the terms ought 'must' and 'should'.
Instead, what distinguishes the case of the threat and the case of the genuine obligation is that
they involve utterly different attitudes on part of the person subject to the demand: in the case of
the gunman what explains compliance with the demand is either action out of irrational fear or
cold calculation of the relative costs and benefits of breaking or complying with the law. In
contrast, obligations are perceived as reasons for action, perhaps even exclusionary reasons for
action, which act as bars to usual cost-benefit reasoning.10
Austin's sovereignty functions in the absence of authority. Thus, implicit in the Hart view was
the idea that authority and obligation were central to the idea of law and the idea of the
governing authority of law.11 And harts idea seem that the concept of obligation has an affinity
with the idea of authority.

Hart stated that obligation comes from law itself and if it comes from law it will in turn oblize
the subjects and subjects cannot disagree by their choice.

The Concept of Law Revisited Michigan Law Review May, (1996) The Concept Of Law. Second Edition. By H.L.A.
Hart. With a Postscript Edited By Penelope A. Bulloch And Joseph Raz. Oxford: Clarendon Press. 94 Mich. L. Rev.
1687

Internal Aspect of law:

9
Sanction and obligation Pdf
http://www2.warwick.ac.uk/fac/soc/law/staff/academic_old/priel/sanction_and_obligation_in_hart.pdf

10
The Concept of Law Revisited Michigan Law Review May, (1996) The Concept Of Law. Second Edition. By
H.L.A. Hart. With a Postscript Edited By Penelope A. Bulloch And Joseph Raz. Oxford: Clarendon Press. 94 Mich.
L. Rev. 1687

11
Sovereignty in Theory and Practice, 13 san Diego Intl L.J. 429
 John Austin famously claimed that the idea of sanctions is the key to the science of
jurisprudence. Thus, he held legal rules to be threats backed by sanctions and statements of
legal obligations as predictions that the threatened sanctions will be carried out. Harts refers that
internal aspect of law is missing in the austins theory as he was only stick to external aspect of
law i.e sanctions. According to hart, law depends not only on the external social pressures which
are brought to bear on human beings to prevent them from deviating from the rules but also on
the inner point of view that human beings take towards a rule imposing an obligation.
Internal aspect can be easily be understood as having obligation within the subject rather than
being obliged because of force. Hart's internal point of view, therefore, is the practical attitude of
rule acceptance.12 , Hart criticized Austin for thinking that habits and threats can confer rights
and impose obligations. In contrast to habits and threats, he argued, only social rules are reason-
giving entities. Social rules have this normative power because they are regularities of behavior
accepted from the internal point of view. Here acceptance of a legal rule means that the rule is
accepted as a sufficient reason for action, i.e. it is considered an appropriate answer to say that
one should act in a certain way because it is the law.
The legal systems exist only when most people subject to them accept and not merely obey the
rules. But in a society different people have different attitudes with regard to what the law
requires, for this hart says that the official have an authoritative say on the matter. This means
that even when the laws are accepted by most people, we would need to know the officials are in
order to have an authoritative judgment as to what counts as the law. Harts called his theory a
version of soft positivism. As he accepts that law may exist in society as a matter of practice and
observance, even if it is not declared to be law.

12
Scott J. Shapiro, What is internal point of view? (2006) Fordham Law review;, 75 Fordham L. Rev. 1157
Conclusion

HLA Hart in his criticism of Austins theory tried to develop new idea that for the confirmation
of the commands threats are not necessary they are taken to be as obligation because of the
internal aspect of individual or the officers. He also questioned the continuance of preexisting
laws. I think Hart was wrong in stating Austins command theory as analogy of gunman theory
as according to Austin law is a command of sovereign and he specifically stated that sovereign is
a person getting habitual obedience of bulk of a given society and the gunman is neither a
political superior, nor a common superior to whom the bulk of a given society are in the
habit of obedience, nor the sovereign of an independent political society. He can oblige
only a person not the bulk of masses. So it cannot be equated with command or law. Hart stated
about the internal aspect of law and that too not of the subjects but of the officials and further he
did not specifies who these officers are. he did not completely rejected the notion of sanction but
rather gave more importance to internal aspect of law but for the proper application of law
sanction is necessary.

It would seem that the concept of obligation has an affinity with the idea of authority
Bibliography:

Suri Ratnapala Jurisprudence, Cambridge university press

M.E. Bayles, Hart Legal Philosophy: An Examination Kulwer Acadmic publishers,

Dordrecht, The Netherland
V.D. Mahajans, Jurisprudence & Legal Theory (5th edition)2010 Eastern Book
Company, Luckhnow

H.L.A Hart The Concept Of Law (2nd edition) 1961, oxford university press, New Delhi
82 Iowa L. Rev. 1487, Gunmen, Straw men, And Indeterminacy: H.L.A. Hart, Jjohn
Austin, and The Concept Of Law

Scott J. Shapiro, What is internal point of view? (2006) Fordham Law review;, 75
Fordham L. Rev. 1157
Sovereignty in Theory and Practice, 13 san Diego Intl L.J. 429
The Concept of Law Revisited Michigan Law Review May, (1996) The Concept Of Law.
Second Edition. By H.L.A. Hart. With a Postscript Edited By Penelope A. Bulloch And
Joseph Raz. Oxford: Clarendon Press. 94 Mich. L. Rev. 1687
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1458694&download=yes