Hart's critique on Austin + Dworkin's critique on Hart

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We have seen the Providence of Jurisprudence from Austin, we now will see what Hart says about Austin’s perception of law.

In his work The concept of law, Hart criticises some aspects of Austin’s view of law. Firstly, he doesn’t comply with the definition Austin gives to the term “command”. For Hart, a command is mostly used in the military with a strong hierarchical order, mostly the commander gives commands to his recruits. Austin defines a command by combining a desire/order, a duty and a sanction. Hart instate, says that the imperative form could also be used in the all day live, without expressing a harm. Also a command should be an appeal not to fear the authority but rather to respect the authority.[14] He states that a state sometimes needs to give some orders/commands to some specific persons, but this should not be the way law actually works. These orders should rather be occasional, to reinforce general forms of directions, which are not specifically addressed to a particular person. Such as for criminal law, the law itself gives directions which should be respected. If these aren’t respected the officials may enforce the law and bring the person in front of the court, so that he receives his punishment.

Hart doesn’t agree with the term “addressed” Austin uses to explain to whom the law apply, he says it will become difficult to make a difference between “to who the law applies?“ and “To whom has it been published?”[15]. Hart says that orders are only there to order a specific thing, such as the bank robber says to the clerk. Because in Harts view laws should have a persistent characteristic, such as Ulpianus also mentioned it in his 3th statement, that justice should be constant and perpetual. Actually, Hart says that Austin’s view of the law, is based on the fear to be punished by the sovereign or by subordinates in obedience of the sovereign. For Hart this view represents the criminal laws, and not the whole judicial system because people should follow the rules because they see them as right, not because they have fear to be punished.

We have seen Hart’s critique on Austin’s view, we will now analyse Hart’s view of law with the helps of his work, The Concept of Law.

Hart differences between primary and secondary rules, which enable the function of the judicial system, but firstly we will see what Hart means with being oblige and being under an obligation.

Some rules obliged people to do something like paying taxes. If you are under an obligation, you respect the rule, because you see the rule as right and therefore you respect it. But not every persons sees the rules as right, the internal aspects of the rules are which make us respect them. There are always people which disagree with this rules and don’t care about the internal aspects. If with take the example form the lesson : The one person which thinks that paying taxes is a theft.[16] Also that the person disagrees with this, the person will need to pay his taxes. Here we can also make a difference between the state which oblige you to pay taxes to guarantee the functioning of the state and somebody who orders you to give him your money. On the one hand you know why you pay taxes, on the order hand you don’t know why he wants your money, but in both cases if you don’t give you money you will be “punished” in a certain way. The minority of the people which are against certain rules don’t have the courage to go against them, because they know the majority follows them and if they oppose against the rules, they will encore a punishment.

As mentioned before Hart differences between primary and secondary rules. Primary rules are the main rules of the state; they are concern with what a person is supposed or is not supposed to do. An example for a primary rule, you need to stop at a red light, or you’re not allowed to drive a car without a license. But this primary rules sometimes pose some problem, such as interpretation problems in front of the court, or the fact that the society evaluate and the rule itself hasn’t changed and the rule isn’t conforming anymore to the actual society. And the main rules should be enforced by authorities to prevent chaos. These three observations Hart made, have a simple solution, you create secondary rules to complete your primary rules. Hart divides his secondary rules in 3 different groups, firstly “rules of recognition”[17], it’s one of the most complex rules to determine from Hart, the rule is a central point of Hart’s theory of law, because the rules of recognition defines the legal system, or in other words it gives us the answer to the question, “What counts as law”?. Hart’s rule of recognition has three functions: firstly, establish a test for valid law in the legal system, secondly confer validity to everything else in the applicable system and thirdly to unify the laws of the system. To have an easier view of this concept I will give you an example, if the rule of recognition was “What Professor A says will become law”, than any rule the professor says will become law. This could also be compare to the second statement of Ulpianus[18], it’s quite the same principle. But in Hart’s case he doesn’t refer to such an absolute power. Secondly, there is the “rules of change”[19], this is a important rule, it gives the state the power to remedy the static quality of the primary rules, so that the primary rules can be changed to be adjusted to the need of the population. The rules will define how and by whom the old primary rules can be changed. The rule of change, not only allows to modify a rule, but it also also to delete the rule if it’s no longer appropriate to the actual society. The third rule is the rule of adjudication[20], consists in empowering individuals to take decisions on particular decision, such as when a primary law has been broken. The rule of adjudication gives power to the judges interpret the law and to punish those who broke the law. Also the rule of adjudication gives a certain procedure that must be followed. Hart says that the rule of adjudication will in a certain way also be a rule of recognition, because judges will identify the primary rules trough the judgements and the decision taken during the judgement will become a “source” of law. Hart affirms that judges have the power of discretion, so that they can interpret the law. Because sometimes the rules aren’t clear enough an in some cases the judge must limit the extend of the rule. If we take the example from a sign which has marked on it “No vehicles allowed in this park”, to have a proper a secure park so that people could spend their time in the park without being disturb by vehicles. But what is the definition