The Force of Law
Austin
Law is nothing more than a way of regulating people’s conduct. Thus, John Austin’s Command Theory purported to show not what law is here or there, but rather, what is law: Austin Emphasis, page 34 (1872). Although Austin was not the first theorist to put forward a command theory he is often recognized as giving the most comprehensive account over Jeremy Bentham, Thomas Hobbes and Jean Bodin. In comparison to Bentham, Austin envisaged to include science in the study of social science by attempting to elucidate an empirical account of law. He starts by distinguishing ‘laws of analogy’, ‘laws properly so called’ and ‘laws of method’ then giving a detailed exposition of each category. All laws are so-called properly commands, an order being backed by a sanction (a threat) in non-compliance with what the commander has stipulated. Most demands are general, directed to an overall class and demanding certain conduct, where others are directed at certain individuals. All commands must come from a superior; an official or God, and range from an internal voice elicited from father to son, or an overarching command from the sovereign. Hence, positive law comes from the sovereign and are the key issue of jurisprudential evaluation.
The sovereign, according to Austin, is the person or body, which the society obeys; therefore it could be an individual person, a monarch or a parliament. The greatest attribute is that there is direct obedience, and that, outside of this obedience, the commander always reigns supreme. Austin falls short in his understanding of what characterises law. He purports that the main attribute must be the command governed by the threat of force, and although he gives a good general approach, as Harts criticism of Austin shows, there are dominant issues against his approach.
Hart
HLA Hart (1907 – 1992) critiqued Austin in what he called the “gunman situation writ large”. If a gunman comes to you, giving the option between your money or life, he achieves what he wants by threatening to take away your life, which is not juxtaposed to what Austin alleged through his command theory. The disparity is that the gunman’s threat is temporary, whereas the sovereigns is eternal, the gunman targets the individual, the sovereign generally society, the gunman’s control is physical and whence this comes from fear of the gun the sovereigns power comes from a cerebral control. Hart rejects Austin’s theory on a number of justifications; legal obligation, there is no psychological reasoning; the threat of punishment is imminent under Austin even if it cannot be sufficiently carried out, and that command and duty are indeed one term: all of which Hart rightfully negates. Threats that are backed by intimidation do not necessarily equate to obligations under law; rather, they only give reason why people comply. Austin only looks at the mere substance of peoples fear, he negates to look at a persons attitude, beliefs and drives. Furthermore, Austin has no interest in self-actualisation in terms of assessing personal conduct.
Austin was blinded by his love of science, instead of trying to delve into the real issues of what constitutes law, he tried to solve the innate issues from his limited standpoint. People have an internal view of law as Hart became aware of due to Gilbert Ryle and increases in sociology. A habit is nothing more than a convergent behaviour: thus Hart develops hermeneutic and socio-conception’s that a persons behaviour can be adapted through laws which encourage behaviour, not need not be necessarily punitive. External and internal rules are thereby equated as follows: I ought to drive on the left hand side of the road, it is socially acceptable, therefore, to avoid being ostracised I drive upon the left hand side; thereby being commended by society and the sovereign. Once internalized Hart believes the law has been internalized: Hart Emphasis, (1994). This is flawed however, for a vegetarian might say that people have no right to kill animals for food, regardless if this is acknowledged: Dworkin, page 102 (1984).
Hart has two sets of rules, primary and secondary. Primary rules may be religious in nature, and therefore give moral authority to secondary rules. It is imperative that the posited laws by man have been installed in conjunction with the higher laws. A legal system cannot choose legal rules purely as it chooses, it must be accepted by the officials, judges etc, which converts the law into recognition. Law contends to be the supreme authority within any society, hence in revision to earlier editions he emphasized that reasons for actions which laws furnishes are peremptory: Hart, Page 55 (1988). Laws supposedly displace our reasoning, whether being self-interest, moral ore religious. Above all, law is ‘deliberation excluding’, and discourages any form of deviation from the normative: Hart, Page 63 (1988).
Hart’s account of law is superior because it clearly shows how a gunman’s authority differs from a police officer. In contrast people can have legal rights and duties without obligation, like mindless sheep, which ardently meander perpetually with little concern other than copulation, fodder and sanctuary. Peradventure, the fact that law is clearly governed by threat of force is a forbidding facet of living within society. If, for example, a coupe occurred, wherefore the corollary illuminates is that if attainable threat and recognition occurs, the sovereign would carry enough force to be justifiable under both accounts. All portraying a calamitous realisation of what the possibility of modernity may offer.