Austin’s conception

  • In Austin’s conception of a society there are no legal limits on the power of a sovereign. The only limits on his ability to legislate are his own morality, fear of popular rebellion etc. What about constitutions or courts? Are countries with these not legal systems. NB There is a difference between having legally unlimited power e.g. absolute monarch, and being supreme within a system e.g. British Parliament.
  • After attacking Austin’s model, Hart redefines what law is: The union of primary (rules governing standards of behaviour) and secondary (rules governing the making/changing etc of primary rules) rules. Primary rules impose duties, secondary rules confer power i.e primary deals with “actions”, secondary deals with “operations”.
  • Hart says there is a difference between being obliged and being under an obligation. Austin treats both as the same, in that a person is obliged to obey the law if he will suffer some punishment as a result. This would mean that a gunman’s order to hand over your wallet is law: plainly wrong. Equally this interpretation would mean that where a law requires a person to do something but there is no risk of punishment (e.g. if he has escaped the jurisdiction), then he is no longer under an obligation to comply- clearly wrong. Instead, “to be obliged” really just refers to a person’s motives for doing something, whereas to be “under an obligation” refers to the existence of a social rule, entailing a general demand for conformity and social pressure/sanction is applied to a non-conformant to a great extent. Only being under an obligation can come within law, not simply to be obliged.
  • What are the defects of a non-legal society (i.e. where things are merely done by social pressure, uniformity of beliefs etc)? Firstly it could only successfully exist where there is a small commune and people are able to function thus i.e. couldn’t work where social pressure is an inadequate form of coercion; Secondly social rules are not codified and therefore there would be uncertainty; Thirdly the rules would be “static” i.e. hard to change, as there are no rules governing how to create or change the rules of society. Fourthly is the inefficiency of social pressure as a means of changing the rules e.g. no method of determining if a person has broken the rules and no agency to administer the sanction. Primary rules of obligation and secondary rules of operation resolve these problems.
  • The operation by which primary laws are made and whether something is a primary law depends on the recognition of it as such by officials, judges etc. This is the rule of recognition. The rule of recognition sets out criteria by which the validity of a law can be tested. E.g. “is the council’s by-law valid? Yes. Why? Because it is made in compliance with the powers conferred on it by the minister.” This demonstrates a rule of recognition that councils only have as much power as the executive grants them. The rule of recognition is a question of fact: It exists in fact and for this reason is the “ultimate rule” as it is the rule that tests whether all others constitute laws.
  • Rule scepticism is the idea that talk of rules is a myth, since in reality the decisions of the courts (and the prediction of them) are the laws (not merely interpretation/application of the rules). Hart disagrees since without secondary rules governing the courts’ functions and powers, the courts might not exist at all, or there decisions would be indistinguishable from those of ordinary citizens. Therefore it makes no sense to talk of the courts as being all-powerful in this way.
  • Kelsen views laws as instructions to officials to do X in Y circumstances.