Another important way in which both Kelsen and Hart tried to improve upon Austin’s legal positivism was to give a better account of law’s “internal aspect”. Austin presented those who were subject to the law as being passive in the face of an external force: law was the command of a Sovereign backed up by sanctions in the face of which the population had a habit of obedience. In Hart’s view, this account of law only explained how law looked on the surface, and from the ‘outside’ and was akin to an account of cars stopping at traffic lights such as a Martian sociologist might offer. A Martian sociologist could state that cars have a habit of stopping in the face of traffic lights turning red. This way of looking at the situation, however, fails to tell us how things appear ‘from the inside’ to those who use legal rules to guide their conduct in their daily lives. Cars do not merely happen to have a habit of stopping at red lights. Rather, those people in the cars understand that there is a rule requiring them to stop which they are using to guide their conduct, and which they take as a reason for stopping when the traffic light turns red. The point which Hart wanted to make was that legal theorists will miss some of the most important things about the nature of law unless they understand law as it is understood by those who are subject to it and use it as a guide to conduct. Hart dubbed this insiders perspective the internal aspect of law, and insisted that law had to be understood taking into account this internal point of view if it was to be understood adequately.
Hart and Kelsen gave different accounts of this internal aspect of law, but both wanted to stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal positivism. According to Hart and Kelsen, then, legal theorists must understand law from the internal point of view, but that point of view must not be so internal as to entail a moral endorsement of the law. For Hartian and Kelsenian legal theorists, having an internal attitude toward the law, then, does not entail accepting the law as a morally good thing which creates moral reasons to do as it says because it says so.
- Hart The Concept of Law, esp. Preface and Chs. 1–7 (Note: See 2nd Ed. with Postscript)
- 3 main questions prompt the discussion of what is law: (1) How do laws differ from orders backed by threats? (2) What is the link between morality and the law i.e. is an unjust law still a law? And (3) What is a “rule” (e.g. as opposed to merely convergent habitual behaviour) and to what extent is law “an affair of rules”?
- Austin defined law by the “command model” i.e. laws are just orders backed by threats or habit, issued by a person/institution that is generally obeyed. When defining legal control, orders from officials cannot be the primary way the law functions i.e. the law doesn’t function primarily by officials going around and telling everyone of every single act that they are required to do- no state would have the resources to do this. Where officials do communicate the rules to individuals it is the exception. Normally laws are made by general forms of directions (e.g. statutes). Therefore legal control is primarily control by directions that apply to general classes of people and prescribe general types of behaviour. The party issuing the order must be habitually obeyed by the population and there has to be a belief that the sanctions for non-compliance will be effected.
- Hart lists several objections to Austin’s point of view: These are categorised into the “content”, “mode of origin”, and “range of application” of laws.
- Content: While criminal law and tort law do bear an analogy to the command model, many areas of law do not. Rules that confer legal powers on people e.g. by allowing them to contract and giving effect to their contracts, or the power to make a will, is not demanding any particular type of behaviour and there is no sanction involved. Some try to get around this objection by associating power-conferring rules with coercive rules by suggesting that nullity (e.g. from failure to comply with the formalities of the Wills Act) is the sanction resulting from non compliance with the rule. Hart denies this, saying that it makes no sense to speak of nullity as a sanction since power-conferring rules are not trying to suppress a type of behaviour (as criminal laws do), but instead are setting limits to the power conferred. E.g. the rule that only a majority vote in parliament will allow a bill to pass cannot be regarded as punishing failure to obtain a majority. Another attempt to counter the “content” argument (used by Kelsen) is to say that laws are really just directions to officials to impose a sanction if an act is performed i.e. the law doesn’t prohibit murder, but merely requires judges to imprison those who murder i.e. murder is an “if” clause in a direction. This would mean that nullity simply means that the “if” clause is incomplete, and thus the sanctions against executors who breach their duties cannot be punished (since there is no will to breach). Thus power-conferring laws are mere fragments of the “real” laws i.e. orders backed by threats. Hart points out that if a law without sanctions is shown to be possible, then this argument disappears. He also says that laws which operate as orders backed by threats ARE fundamentally different from other types of laws, since only the former are designed to suppress activity viewed as negative e.g. there is a difference between a fine meant to deter people from driving above the speed limit, and a tax whose purpose is simply to collect revenue.
- The “range of application argument” against Austin’s model: An order is a desire that someone else should do something. Therefore, if many laws apply also to the person creating the rule, then it cannot be an order.
- The modes of origin argument: The idea of an order is only really compatible with laws from certain sources, such as statutes. It does not account for rules which have become law by virtue of being custom. Even statutes ordering that custom form no part of the law will not be effective necessarily in places where the courts have discretion. Others argue that customs which become law are recognised by the officials and, since no action is taken, a tacit order to continue can be inferred. Hart counters this by saying (1) such an inference is not always necessarily true, and (2) it is hard to ascribe knowledge, consideration, approval etc to the sovereign in modern states.
- NB another argument is that Austin’s system cannot account for countries with full judicial review. Firstly under Austin’s system, there is no reason why limitations would exist on the types of orders that an issuer of orders (the sovereign) could make, unless he placed them on himself or did not have the coercive power to carry out the sanctions. This fails to take account of systems where the courts have assumed the power of full judicial review i.e. to strike down the sovereign’s orders, since it is (1) not a power granted by the sovereign, (2) a limitation that is neither requested by the issuer of orders nor created through want of force.
- The idea of habitual obedience fails to explain the continuity of legal systems as one lawgiver is replaced by another- people (a) have no habit of obeying the new lawgiver and (b) on what basis does the new lawgiver have the right to take his predecessor’s place? E.g. When one king, whom the population is in the habit of obeying, dies, then his successor can still promulgate laws etc despite the people having no habit of obeying him personally. Perhaps Austin’s point here is more that people have a habit of obeying an institution e.g. “parliament” or “the monarchy” rather than the particular actors within it.On the “right” point, Austin’s view is basically “might is right”, so questioning the new lawgiver’s title is irrelevant.
- There is a difference between a mere “habit” and a “social rule”: (1) Habit is merely convergence of behaviour but does not necessarily seek to repress any other knd of behaviour i.e. just because someone breaks a group habit does not mean they are open to censure. By contrast deviations from rules are seen as faults meriting punishment; (2) Rules have an internal aspect, demonstrated by criticisms of people who don’t conform. Habits are unthinking and therefore don’t have this.
Problem with the idea of the “sovereign,” obedience to whom comes from his orders backed by threats: Why do statutes from previous reigns still operate in law under the new sovereign? Not habit of obedience to new ruler since he did not enact the rule. NB Hart moots the answer that authority rests with the institution and therefore it is the institution that is regarded as sovereign, but still calls it “puzzling”. Why? Seems a valid enough answer. One answer (Hobbes) was that the new sovereign tacitly expresses his will for the law to remain by not changing it. Hart responds that such an inference is wrong in fact (refraining to change the law does not equal an order that it should remain.