The Concept of Law (According to H.L.A Hart)

Part 3 - The Variety of Laws

RECAP

In the previous article, we were introduced to John Austin’s theory of law:

Law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance.

We then explored Hart’s first criticism of this conception of the law by understanding why it is inaccurate to describe laws as “commands”, defined as “orders backed by threats”. The reasons for this are fourfold:

(1) We do not always obey commands primarily because they are accompanied by a threat of sanction. Indeed, we often obey commands due to a respect for authority.

(2) Laws are general in the sense that they require certain conduct from classes of people. If laws were to be “commands”, defined as “orders backed by threats”, this presupposes individualised laws for each person.

(3) Further, “orders” necessarily require communication to the person they are addressed to. Yet the law does not require that the people to whom it applies actually know about those laws - they still apply regardless.

(4) “Commands” and “orders” are generally one-offs, yet the law persists. Under Austin’s theory, the commands therefore must be issued by a sovereign, but there are issues in defining what a “sovereign” actually is.

The Variety of Laws

Today’s article considers Hart’s next criticism of Austin’s theory - this time attacking the idea of a “sanction”. That is, Hart suggests that laws are not simply orders backed by a threat of sanction.

Let’s start by considering what types of laws exist. We can broadly categorise laws as either: (1) laws that impose duties; or (2) laws that confer powers.

(1) Laws that Impose Duties

The first type of laws are laws that impose duties. Those duties can be further categorised as either “positive” or “negative” duties.

That is, a “positive” duty tells you that you must do something. For example, you must file a tax return every financial year.

On the other hand, a “negative” duty tells you that you must not do something. For example, you must not drive a motor vehicle under the influence of drugs.

These types of laws are quite simple, and generally also fit neatly into Austin’s conception of laws, since these will usually be backed by the threat of a sanction if not complied with. It is the second type of laws that present an issue for Austin’s theory.

(2) Laws that Confer Powers

The second type of laws are those laws that neither tell you that you must or must not do something. Instead, these are laws that allow you to do certain things. Let’s look at some examples.

There are many things that we are allowed to do without the law being involved - for example, we are allowed to fall in love. But there are some things we are not allowed to do without the law being involved - for example, get married. That means we can say that marriage law confers powers on certain individuals to enter into a specific kind of legal relationship called “marriage”. I say “certain individuals” because not everyone has this power, including minors and, until recently, same-sex couples.

Another prime example is making a Will. Succession law confers powers that allow you to distribute your assets after death in a way that the court will enforce.

A final example is that of a contract. Clearly, we can all make promises to each other without the law being involved. But contracts are a specific type of promise that you can enforce in court. That is, contract law confers powers on you to enforce certain promises kinds of promises.

So, what does this all mean? Well, we can clearly say that this type of law does not impose duties. A law conferring the power to get married does not mean you have a duty to get married, neither does succession law impose a duty to make a Will, and neither does contract law impose a duty on you to enter into a contract.

That means that when it comes to laws that confer powers, there are no sanctions.

As such, Austin’s theory must be flawed because as we can see, there are some laws that simply are not “orders backed by threats”.

Austin’s Rebuttal

There are two possible ways Austin might still try to get these “power-conferring” laws to fit into his theory.

(1) “Nullity” is a “Sanction”

If we fail to comply with power-conferring laws, it might result in what is called a “nullity”. Let’s use the above examples to explain what we mean by this.

If we fail to comply with marriage law (for example, not filling out the correct documentation), the result is that two people will, despite wanting to, not be legally married. That is to say, it is a nullity because nothing has actually legally happened.

Equally, if we fail to comply with contract law when making a promise that we intend to be a contract (for example, not fulfilling all the requirements for a contract), the result is that there will simply be no contract - it will be a nullity.

So, Austin might argue that the sanction for non-compliance of marriage or contract law in the above cases is the nullity itself. In other words, failing to comply with the law results in the sanction that no powers are actually conferred. As such, you are punished by not being able to use those powers as well as by the disappointment or embarrassment resulting from the lack of legal consequence.

Hart, predictably, disagrees that a sanction is a nullity. He offers two main reasons:

(a) A “Sanction” is a Punishment for Wrongdoing

Let’s take the example of a failure to comply with marriage law. If A says to B, “I now marry you”, they are not legally married. They have not complied with the relevant Marriage Act and so the marriage is a nullity.

However, they also have not broken the law - they have not contravened the Marriage Act. That is to say, they have done nothing wrong, but they have also done nothing right. They have simply done nothing.

So if a sanction is a punishment for wrongdoing, the nullity of the marriage above cannot be a sanction because there was no wrongdoing.

(b) A “Sanction” is Often Meant to Encourage or Discourage Behaviour

A sanction attached to a “positive duty” to do something is meant to encourage people to do what the law is asking of them.

A sanction attached to a “negative duty” not to do something is meant to discourage people from doing what the law is prohibiting them from doing.

But our second type of law, those power-conferring laws, do not encourage people to do or not do anything. They simply say “if this is something you want to do, then this is how to do it”.

(2) Difference between “Laws” and “The Law”

Austin might also argue that there is a difference between individual laws and “the law” as a whole. That is, some individual laws might not have any sanctions attached to them, but “the law” as a whole does require sanctions somewhere down the line.

For example, contract law may not impose a sanction for forming or failing to form a contract, but once a contract is formed there are sanctions down the line, including damages for breach of contract. The argument would be that the broader law of contract still fundamentally relates to sanctions.

Hart rejects this argument as well because, for example, the vast majority of contracts do not result in breach or any kind of sanction. Hart also once again rejects making the sanction the central element of the law. In the case of the contract law example, Hart suggests that the sanction is the Plan B of the law, while Plan A is voluntary compliance.

Wrapping Up

Today we have explored the idea that there are two main types of laws, and that the second type - “power-conferring laws” - do not fit into Austin’s theory of law. On the other hand, Austin might disagree and defend his theory by saying that a nullity is a sanction in itself and that a broader conception of “the law” still ultimately revolves around sanctions.

What do you think of these arguments? Are they persuasive enough to make Austin’s theory coherent? Or are these arguments grasping at straws to try and make everything fit into a flawed theory? Hart, for one, is not persuaded by Austin’s arguments.