The Concept of Law (According to H.L.A Hart)
Part 2 - Laws, Commands and Orders
RECAP
In the previous article, we covered various problems that any theory of law must resolve: the Bald Man Puzzle and the Chicken and Egg Puzzle, and three recurring issues: law vs coercion, law vs morality and rules vs habits.
These are basic and overarching ideas to keep in mind as we get to the meat of The Concept of Law.
John Austin’s Theory of Law
At the time that Hart was writing The Concept of Law, another legal positivist theory of law was very popular. This was John Austin’s “command theory of law” and it answered the question “what is law?” in the following way:
Law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance.
In other words, laws are commands, and commands are orders backed by threats.
At first glance, Austin’s definition seems quite apt. Hart begs to differ, however. In expounding his own theory of law, Hart uses Austin’s theory as a starting point and makes various criticisms to debunk it.
In this article, we will explore Hart’s objection to Austin’s understanding of laws as being “commands”, defined as “orders backed by threats”.
Debunking Austin’s Idea of Laws as “Commands”
(1) “Command” and “Threat”
When we make a “command”, it is a particular way of asking someone to do something. Obviously, there are other ways of doing this. We can request someone to do something: “could you please pass me my bag?”. We can propose someone to do something: “will you marry me?” We can plead with someone to do something: “do not kill me”, and so on.
Since the law gives us no choice in compliance, at first glance calling them “commands” might seem like an appropriate word. But this is not quite correct if a command is defined as an “order backed by a threat” according to Austin.
Let’s say a chef is told by his boss: “you will be cooking a new menu this year”. This is a command - it is coming from a place of authority. But it is not necessarily backed by a threat in the way that Austin’s theory would have it. There is, of course, the threat of sacking that might loom in the distant background were the chef to decline, but the threat is not immediately part of the particular command.
The problem is that by calling laws “commands” (i.e., orders backed by threats), Austin moves the threat to the foreground, assuming it will be the primary reason that the chef will comply. But again, in this example there was no threat of sacking made at all as part of the command.
As such, Hart posits that obeying a command is not about a threat, but about a respect for authority.
(2) Law is General
Another issue is that the law rarely operates through individualised commands. If commands are “orders”, how can this be so when orders are individualised?
Sure, there may be times when a policeman orders you to do something, but clearly the law as a whole could not operate on the basis of individualised orders, if only because there could not possibly be enough officials to ensure that every single person was separately informed of every act they were required to do or not do.
As such, the law is general - legislation indicates a type of conduct required of a general class of persons and expects that that class of persons sees that it applies to them and then complies with it. Where this is not obeyed, individualised directions have a secondary place. For example, an official may reach out to a person directly, draw attention to the non-compliance and demand compliance.
(3) Commands/Orders must be Communicated
The above leads directly to Hart’s next criticism - that orders are a form of communication:
“Ordering people to do things is a form of communication and does entail actually addressing them, i.e. attracting their attention or taking steps to attract it, but making laws for people does not”.
Nobody knows all of the content of the law - that is decidedly impossible. As such, the law does not require that the people to whom it applies actually know about those laws - they still apply regardless.
Therefore, Austin’s conception of laws as commands (i.e., orders) presupposes some form of communication, which is simply not the case in many legal systems.
(4) Commands/Orders are usually One-Offs
In our armed robber example from the previous article, the robber orders the victim to hand over his wallet. Once the victim does so, it is over. Laws, on the other hand, persist. If Austin is correct that laws are commands, and commands are orders backed by threats, then it would have to be the case that the armed robber has made a law.
Austin, of course, understood this, which is why his theory states that law is specifically a command issued by the sovereign.
At this point, we might like to recall our Chicken and Egg Puzzle when we consider the concept of a “sovereign”. What makes a sovereign a sovereign? Under Austin’s model we can’t say that the sovereign is created by law because the sovereign was not created by an order backed by a threat. Why? Because a key trait of sovereigns is that they habitually do not obey orders from anyone that they are sovereign over.1
So, we might say that to be a sovereign you have to be dishing out commands and people need to be complying with them. Of course, perfect compliance with the commands of the sovereign would be impossible to achieve in any society, so Austin would have to say that to be considered a sovereign you need a certain degree of compliance from your subjects. But that brings us back to our Bald Man Puzzle - is there an exact point at which there is a sufficient level of compliance?
Wrapping Up
It might seem nit-picky to spend so much time on understanding two legal theorists disagreeing about what a “command” is, but I assure you it is important to the bigger picture. If anything, hopefully it is becoming clear that the law is, more than anything, a fundamental part of how human beings deal with each other. And because our social behaviours are so complex, the law inevitably takes a similar path. By stripping the law right back to its bare bones, we will soon see it for what it really is.
The next article will focus on Hart’s debunking of another component of Austin’s theory - the idea of the “sanction” that supposedly underpins compliance with the command of the sovereign.
Everyone in a given territory/country has to habitually obey the sovereign, and the sovereign has to habitually obey nobody anywhere (including outside the territory/country). Why? Because if the sovereign habitually obeyed a sovereign outside their territory then the territory would inadvertently become the other sovereign’s territory - this would essentially just be a colonial relationship.