Austin versus Hart

A gunman says: hand over your money or I shoot. A tax officer says: pay the tax assessed under the Income Tax Act or face a penalty. Both are orders backed by threats, and on Austin's model the only difference is that the second gunman is bigger and is habitually obeyed. Yet everyone feels the difference. The tax officer acts under rules that give him authority, the rules bind him as well as you, and people speak of an obligation to pay tax, not merely of being forced. Hart built his whole theory out of that felt difference. This note shows how Hart took Austin's positivism apart and rebuilt it; the full account of each theory is in Note 11 (analytical school) and Note 38 (sovereignty).

Figure: Austin's command chain (sovereign to subjects, backed by sanction and habit) against Hart's union of primary and secondary rules resting on a rule of recognition; 'the gunman writ large' is Hart's description of Austin's model

1. Austin's Command Theory in Brief

John Austin, in The Province of Jurisprudence Determined (1832), defined law properly so called as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Positive law is the species of such rules set by a political superior to political inferiors. Every positive law has three marks: it is a command (an expressed wish that another do or forbear), it imposes a duty (being liable to an evil if one disobeys), and it is backed by a sanction (the evil itself). The source of every command is the sovereign, who is identified by two facts: the bulk of the society habitually obeys him, and he habitually obeys no one. Because the sovereign is the source of legal limits, he cannot himself be legally limited: Austin's sovereignty is indivisible and illimitable. Rules not set by a sovereign, such as the rules of honour, fashion and international law, are positive morality, not positive law. Custom becomes law only when the courts apply it, and the sovereign, by allowing that, is taken to command it tacitly.

2. Hart's Critique, Step by Step

Hart opened The Concept of Law by reconstructing Austin's theory as fairly as he could, as a model of orders backed by threats given by a sovereign habitually obeyed, and then showing where it fails. The order of his argument is worth learning, because examiners ask for 'Hart's criticisms of Austin' and reward a structured answer.

The gunman situation writ large (chapter 2)

Hart pointed out that Austin's model is essentially the situation of a gunman giving an order to a bank clerk, enlarged to cover a whole society and made standing and general. The phrase gunman situation writ large is Hart's description of Austin's model, not Austin's own words. The rest of the critique explains why law is not simply that situation made bigger.

The variety of laws (chapter 3)

Hart showed that laws differ from orders backed by threats in three ways. Content: many laws do not impose duties at all but confer powers: the rules on making wills, contracts and marriages (private powers) and the rules giving authority to legislatures and courts (public powers). They do not say 'do this or else'; they say 'if you wish to achieve this, here is how'. Austin's followers tried to fit them into the model by treating nullity as a sanction. Hart answered that nullity is not a sanction: a rule of criminal law is intelligible without its penalty, but a rule for making a valid will is not intelligible without the idea that non-compliance means no valid will; nullity is part of the rule itself, like the rule that a ball not crossing the line is not a goal. Range of application: an order is addressed to others, but legislation binds the legislators themselves; a member of Parliament must pay the tax he votes for. Hart compared legislation to a promise, which binds the person who makes it. Mode of origin: orders are given deliberately, but custom becomes law without anyone commanding it. Hart rejected Austin's tacit command device: a sovereign cannot be said to command what he may not even know exists, and courts apply custom as law before any sovereign has had the chance to interfere.

The sovereign and the habit of obedience (chapter 4)

A habit is a mere convergence of behaviour; it cannot explain two features of every legal system. The first is continuity. Suppose Rex I rules by habitual obedience and dies. On the day Rex II succeeds, no habit of obeying him yet exists, yet his first enactment is law at once. Only an accepted rule that entitles the successor to legislate can explain that. The second is persistence. Laws made by a long dead sovereign, whom no one living ever habitually obeyed, remain law today; again, only a rule accepted now can explain why. Finally, the Austinian sovereign cannot be found in a modern constitutional State. Where the legislature is limited by a written constitution, there is no body that is legally illimitable, and Austin's retreat to the electorate as the sovereign behind the legislature makes the idea of a habitually obeyed person meaningless.

Being obliged and having an obligation (opening of chapter 5)

The bank clerk who hands over the money was obliged to do so, but he had no obligation to do so. The command theory, which reduces duty to the likelihood of suffering a sanction, can explain only the first. To have an obligation, there must be a rule that people treat as a standard, criticise departures from, and use to justify demands. This leads directly to Hart's own theory.

3. Hart's Alternative: The Union of Primary and Secondary Rules

Hart imagined a simple society governed only by primary rules of obligation. Such a regime has three defects. It suffers from uncertainty (no way of settling what the rules are), a static quality (no way of deliberately changing them) and inefficiency (no agency to determine authoritatively whether a rule has been broken). Each defect is cured by a secondary rule, a rule about rules: the rule of recognition cures uncertainty, the rule of change cures the static quality, and the rule of adjudication cures inefficiency. The union of the two kinds of rule is, for Hart, the key to understanding a legal system, the place Austin had wrongly given to the command.

Rules have an external aspect (regular behaviour an observer can record) and an internal aspect (the critical reflective attitude of those who accept the rule as a standard). Austin saw only the outside. Hart insists that at least the officials must accept the rule of recognition from the internal point of view for a legal system to exist, though ordinary citizens may merely comply. Hart also went beyond Austin by recognising a minimum content of natural law: given five truisms about human beings (vulnerability, approximate equality, limited altruism, limited resources, limited understanding and strength of will), every viable legal system must contain rules protecting persons, property and promises. This is a factual necessity, not a moral test of validity, so Hart remains a positivist. The detail of these ideas is in Note 11.

4. The Two Compared

5. The Indian Perspective

The Indian Constitution is the best modern proof of Hart's claim that the sovereign cannot be found. Parliament is limited by Part III and the federal division of powers, and after 1973 even the constituent power of amendment is limited.

Art. 13(3)(a) supports Hart on mode of origin. It defines 'law' to include 'custom or usage having in the territory of India the force of law'. Custom is recognised as law by the Constitution's own criteria, not because some sovereign tacitly commanded it.

6. Evaluation

Hart did not abandon Austin; he repaired him. The separation of law and morals, the identification of law by social facts and the analytical method all survive. Hart also kept a place for sanctions: they are needed, he said, not as the normal motive for obedience but as a guarantee that those who would voluntarily obey are not sacrificed to those who would not. Austin's defenders reply that his theory was a deliberate simplification for teaching purposes, and that Bentham's fuller command theory, published only in 1970 as Of Laws in General (edited by Hart), handled power-conferring laws better. Hart's own theory was later attacked by Dworkin for leaving out principles (Note 64), which shows that the debate moved from Austin versus Hart to Hart versus his successors.

7. Frequently Asked Questions

Q. What is the main difference between Austin and Hart?
A. Austin defines law as the command of a sovereign backed by a sanction and obeyed out of habit. Hart defines it as a union of primary rules of obligation and secondary rules of recognition, change and adjudication, resting on a rule of recognition accepted by officials from the internal point of view. Both are positivists.

Q. What are Hart's main criticisms of Austin?
A. Laws differ from orders in content (power-conferring rules), range of application (legislation binds legislators) and mode of origin (custom is not a tacit command); nullity is not a sanction; being obliged is not having an obligation; habit cannot explain the continuity and persistence of law; and no illimitable sovereign exists in a modern constitutional State.

Q. Why does the Rex I and Rex II example matter?
A. It shows that when a new ruler succeeds, his first law is valid before any habit of obeying him has formed. Only an accepted rule of succession, not a habit, explains the continuity of legal authority.

Q. Is Hart's minimum content of natural law a concession to natural law theory?
A. No. It is a factual claim: given human vulnerability, approximate equality, limited altruism, limited resources and limited understanding and strength of will, any system that is to survive must protect persons, property and promises. It does not make moral merit a test of legal validity, so Hart remains a positivist, as Austin was.

See also: Note 11 (analytical school), Note 38 (sovereignty), Note 62 (Austin versus Kelsen), Note 63 (Hart versus Kelsen), Note 64 (Hart versus Dworkin).