Hart – A New Conception of Law: or, why Positivism Sucks
Positivism fails in three ways:
1) Criminal statute is not a command because the criminal statute applies to
those who enact it
The sovereign is not above the law, although the commander is usually not
considered to be subject to her own commands. Hence, this analogy is not
2) Other forms of law—conferring legal power to adjudicate—cannot be orders
backed by threats
3) Some laws are not brought into being by anything analogous to explicit
4) Law as command cannot account for continuity of legislative authority
“The root cause of failure is that the elements out of which the theory was
constructed, viz. the ideas of orders, obedience, habits,and threats, do not
include, and cannot by their combination yield, the idea of a rule” (21).
Two kinds of rules:
1) Basic/Primary Rules – humans required to abstain from certain actions
2) Secondary rules – humans may create, modify, or extinguish primary rules
Idea of Obligation
“Where there is law, there human conduct is made in some sense non-optional or
“There is a difference, yet to be explained, between the assertion that someone
was obliged to do something and the assertion that he had an obligation to do it”
“The first is often a statement about the beliefs and motives with which an action
is done.... It seems clear that we should not think of B as obliged to hand over the
money if the threatened harm was, according to common judgments, trivial in
comparison with the disadvantage.... Nor ... if there were no reasonable grounds
for thinking that A could or would probably implement his threat of relatively
serious harm” (22-23). This, however, reduces “the statement that a person was obliged to obey
someone [to] a psychological one” (23). An obligation is very different.
“Facts about beliefs and motives are not necessary for the truth of a statement
that a person had an obligation to do something” (23).
Hart charges Austin for re-stating this psychological aspect in terms of “chance”
or “likelihood,” thus making it more palatable by presenting the same concept in
However, this “obscures the fact that, where rules exist, deviations from them are
not merely grounds for a prediction that hostile reactions will follow or that a court
will apply sanctions to those who break them, but are also a reason or justification
for such reaction and for applying the sanctions” (23)
Second objection: “if it were true that the statement that a person had an
obligation meant that he was likely to suffer in the event of disobedience, it would
be a contradiction to say that he had an obligation, e.g. to report for military
service but that, owing to the fact that he had escaped from the jurisdiction, or
had successfully bribed the police or the court, there was not the slightest chance
of his being caught” (23).
“A person has an obligation under some rule and the prediction that he is likely to
suffer for disobedience may diverge” (23).
Social rules contribute to an understanding of 'obligation' in two ways:
1) “The existence of such rules, making certain types of behaviour a standard, is
the normal, though unstated, background or proper context for such a statement”
2) “The distinctive function of such statement is to apply such a general rule to a
particular person by calling attention to the fact that his case falls under it” (24).
“The statement that someone has or is under an obligation does indeed imply the
existence of a rule; yet it is not always the case that where rules exist the
standard of behaviour required by them is conceived of in terms of obligation”
“Rules are conceived and spoken of as imposing obligations when the general
demand for conformity is insistent and the social pressure brought to bear upon
those who deviate or threaten to deviate is great” (24).
“The insistence on importance or seriousness of social pressure behind the rules
is the primary factor determining whether they are thought of as giving rise to
obligations” (24). Two more characteristics:
1) “Rules supported by this serious pressure are thought important because
they are believed to be necessary to the maintenance of social life or some
highly prized feature of it” (24)
2) “The conduct required by these rules may, while benefiting others, conflict
with what the person who owes the duty may wish to do. Hence obligations
and duties are thought of as characteristically involving sacrifice or
“The standing possibility of conflict between obligation or duty and interest is, in
all societies, among the truisms of both the lawyer and the moralist” (25).
“In this figure ... the social pressure appears as a chain binding those who have
obligations so that they are not free to do what they want. The other end of the
chain is sometimes held by the group or their official representatives, who insist
on performance or exact the penalty: sometimes it is entrusted by the group to a
private individual who may choose whether or not to insist on performance or its
equivalent in value to him” (25). The first is criminal law; the second is private
right of citizens.
Caveat: “the fact that rules of obligation are generally supported by serious social
pressure does not entail that to have an obligation under the rules is to
experience feelings of compulsion or pressure.... To feel obliged and to have an
obligation are different” (25).
The emphasis on social pressure is different from the use of 'chance' under
Austin's theory (or what is referred to by Hart as the predictive theory), because
there is a difference “between the analysis of a statement of obligation as a
prediction ... and our own contention that though this statement presupposes a
background in which deviations from rules are generally met by hostile reactions,
yet its characteristic use is not to predict this but to say that a person's case falls
under such a rule” (25).
Internal vs external aspect of rules: one can be concerned with rules as a member
of the g