PHILOS 3Q03 Chapter Notes - Chapter 10: Joseph Raz, Basic Norm, Neil Mccormick
8 May 2018
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H L A Hart was born in 1907, and graduated from New College, Oxford, where he read classics, ancient
history and philosophy.
Hart suffered from what could be categorised as a ‘semantic sting’; the meaning of words and their
meticulous usage can be seen as a focal point in his criticism of other jurists. Hart’s book ‘The Concept
of Law’ claims to be an exercise in both analytical jurisprudence (analyzing everyday language to give an
analytical account of how the law has developed), and descriptive sociology (looking at the nature of
rule bound human behavior).
Hart sets out to produce a descriptive, positivist legal theory, and the book has elements of what
Cotterrell has labeled ‘conceptualism’.
The early chapters (2-4) of Hart’s book progressively take apart Austin’s imperative theory of law. They
identify inadequacies both with the account of sovereignty and with the notion of laws as orders backed
by threats. The method, in effect, is to construct his own theory out of the ashes of Austin’s.
CHAPTER 2; Laws, Commands and Orders:
(i) Varieties of Imperatives: Hart begins this chapter by stating at the outset that he is going to
criticize a position which is, in substance, the same as Austin’s doctrine but probably
diverges from it at certain points. He considers linguistic differences between orders and
laws and this introduces the reader to what is often called ‘the linguistic method’ or the
‘method of linguistic philosophy’. Famously, Hart in this chapter draws a linguistic distinction
between our standard use of the term ‘being obliged’ (that is being coerced) to do
something and ‘being under an obligation’ (that is being under a duty) to do something,
saying that in the former case, no obligation was implied.
Hart starts with his definition of the ‘imperative mood’ with the word ‘order’ and gives the
gunman example, a hypothetical situation, in which a gunman demands a bank clerk to
hand over cash at gunpoint. By the use of this scenario, Hart distinguishes between different
imperatives, saying that the gunman is certainly not ‘pleading’ or ‘requesting’ the bank clerk
to hand over the money he is ‘ordering’ him to do so. He then takes this position one step
further by saying that although one can assume that the gunman ordered the clerk to hand
over the money, it would be difficult to regard this as the gunman ‘giving an order’ [Note:
makes a distinction between an order and giving an order] because the later suggests some
right or authority which is not present in the given situation. The bank clerk is forced to
hand over the money because the gunman has a gun pointing to his face and not because
he is the clerk’s superior or boss. The gunman can however, ‘give an order’ to his henchman
guarding the door. In summary, a legal obligation or a duty is different from being obliged or
forced to do something. When the gunman orders the clerk to hand over the money, it will
be misleading to say that he is ‘giving an order’ to the clerk.
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Next Hart draws a distinction between commands and orders backed by threats. A
distinction he feels has been largely ignored by Austin.
Commands
Orders Backed by Threats
The word command carries a strong
implication that there is a relatively stable
hierarchal society of men in which the
commander occupies a position of
preeminence.
A command means to exercise authority over
men, NOT power to inflict harm, and though it
may be combines with threats of harm in case
of non-compliance, a command is primarily an
appeal not to fear but to respect authority.
An OBT is an OBT. It requires compliance not
because of respect but solely due to the fear of
threat of punishment or sanctions.
Hart sums up by saying that the idea of a command and its strong connection and respect
for authority is much closer to law than the gunman’s order backed by threats- which Austin
misleadingly calls a command.
(ii) Law as Coercive Orders:
(a) Generality: Hart feels that no society could support the number of officials necessary to
secure that every member of the society was officially and separately informed of every
act he was required to do. Hence, law possesses GENERALITY and the standard form
even of a criminal statute (which has the closest resemblance with an order backed by
threat) is general in two ways; (i) It indicates a general type of conduct. (ii) Applies to a
general class of persons who are expected to comply with it.
Official individuated face-to-face directions here have a secondary place: if the primary
general directions are not obeyed by an individual, officials may draw his attention to
them and demand compliance, as a tax inspector does, or the disobedience may be
officially recorded and the threatened punishment imposed by a court.
Therefore, generality is the first feature we should add to the model of the gunman if it
is to reproduce for us characteristics of law.
Secondly, Hart points out that Austin has spoken of laws being ‘addressed’ to classes of
persons. This he feels is misleading in suggesting a parallel to the face-to face situation
which really does not exist and is not intended by those who use this expression. Laws
are complete when they are made, it is desirable that they are brought to the notice of
the general public, but they are in a finished form whether or not they are conveyed to
the public. The order of the gunman would have no force if the clerk was unafraid of
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him or if it were said in an empty room. If one uses the word ‘addressed’ in law, we may
fail to distinguish an important difference between the making of a law and a face-to-
face order and confuse the two distinct questions: ‘to whom does the law apply?’ and
‘to who is it published’
(b) Persistent characteristic of law: Besides the introduction of the feature of generality to
the gunman model, a more fundamental change must be made. It is true there is a
sense in which the gunman has an ascendancy or superiority over the bank clerk; it lies
in his temporary ability to make a threat, which might well be sufficient to make the
bank clerk do the particular thing he is told to do. There is no other form of relationship
of superiority and inferiority between the two men except this short-lived coercive one.
The gunman does not issue to the bank clerk ‘standing orders’ to be followed time after
time by classes of persons. Yet laws pre-eminently have this ‘standing’ or persistent
characteristic and it is this very characteristic that we must endeavor to reproduce in
the given gunman model.
(c) General Habit of obedience: The question how many people must obey how many such
general orders, and for how long, if there is to be law, no more admits a definitive
answer than the question how few hairs must a man have to be bald. Mere temporary
ascendancy of one person over another is naturally thought of as the polar opposite of
law, with its relatively enduring and settled character. It remains to be seen whether
this simple, though admittedly vague, notion of general habitual obedience to general
orders backed by threats is really enough to reproduce the settled character and
continuity that legal systems posses. Moreover, he accepts that penal statues bear close
resemblance to OBT’s but what about other laws, such as those governing contracts,
wills etc (power conferring)? How are they to fit into the OBT model?
Moreover, Hart says that the law has features of supremacy and independence within
its territory that cannot be reproduced in this simple model. Within a country like
Pakistan, for example, there are various bodies such as local authorities or officials that
give out orders in return of which they receive habitual obedience, for example;
WAPDA. However, it is noteworthy here that this body is subordinate to the Head of the
State and thus, may be described as an agent of the Government of Pakistan. The
Government is also independent as it is arguably not in the habit of obedience to the
government of any other state.
Hart sums up by saying that the sovereign, or the body issuing general orders backed by
threats(s), must be INTERNALLY supreme and EXTERNALLY independent. (Pointing to his
external and internal point of view)
Document Summary
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