An Analysis Of HLA Hart Concept Of Law, Commands And Order
Hart explored the notion of law in simple command and habitual habits,
attempting to explain whether all laws may be correctly understood as coercive
mandates. According to Hart, there is no logically required link between law and
compulsion. He further emphasizes that seeing all laws as coercive commands
imposes a false impression of uniformity on various types of laws and the many
social purposes that laws may serve. He contends that referring to all laws as
coercive commands mischaracterizes their purpose and function, as well as their
substance, manner of genesis, and area of application.
Hart attacks John Austin's notion of law, which maintains that all laws are
commands of a legally limitless sovereign in The Province of Jurisprudence
Determined. According to Hart, laws vary from sovereign mandates in that they
may apply to those who enact them rather than only to others. Laws may also
differ from coercive commands in that they may bestow powers or privileges
rather than imposing responsibilities or obligations.
Hart began his analysis of Austin's theory of command by referring to the gunman
incident to address the question of how imperative orders may be separated
between 'ordering' and 'issuing an order,' and how they can be utilised as the
foundation of law. According to Hart, Austin failed to differentiate between
being "obligated" to do something by a threat and "having a responsibility" to
According to Hart, the position of a person with legal duties differs from the
position of someone confronted with a gunman, but Austin runs the two together.
Hart suggested rules as a source of duty in place of Austin's idea that legal
duties consist of threats of punishment. The concept is straightforward: a rule
specifies what you must do.
According to Hart, Command isn't always an order. It cannot be used merely to
define what law is. Hart identifies the flaws in Austin's argument and asserts
that we must derive the meaning of law from it, rather than limiting ourselves
to command as a law.
Command is a generic term, not an order or an address, as demonstrated by the
gunman situation, which is an address backed up by a threat, whereas law is
neither an order nor an address since the individuals impacted can be left to
figure things out on their own. It's generic, and if we mistake it for an
address, we'll get mixed up about who it's addressed to and who it's published
It is not required for the public officers of the people who are governed by the
law to be aware of it. If the principal directive is not followed, a public
official will generally draw attention to it. Taxation transactions, for
example, may be recorded, and if one is unaware of the legal norms governing it,
the tax officer may bring his attention to it.
He then stipulates his idea of law after explaining the contingent nature of
power and the dangers of depending on it as a source of social control. The rule
of law must have a threat to back it up. Superiority over inferiors is required,
but Hart contends that this is not why laws are followed. These regulations may
be backed up by the fear of penalty, but individuals have a general propensity
to follow rules rather than break them. This is the foundation of society that
has been implanted in people's brains, and they willingly support the law and
want to punish those who violate since they have a general habit of compliance.
Hart muses about the legal system and its complexities, concluding that in a
contemporary legal system, there must be independence, territory, and
sovereignty, which are not conceivable in a simple system. Hart then moves on to
the concept of sovereignty, which is more difficult in the modern world since it
takes more than a threat to back it up.
Hart separates the sovreign's or a group of sovreigns' sovereignty into exterior
and internal sovereignty. When a majority decides in favour of a sovereign,
gives him or her authority, and works as a subordinate, the sovereign is
considered domestically superior. For example, if the adjutant parliament did
not collaborate with the king, there would be no one legal system in England.
Hart defines external sovereignty as the ability to make decisions within a
region without the influence of outside forces.
For example, if the USSR had authority over the monarch in England, the monarch
would no longer be a sovereign since each law passed would have to be authorized
by the USSR. Sovereignty is a veiled notion. Hart expands on the notion of
sovereignty rather than rejecting it.
To summarize, a law in a legal system is a general order backed up by a threat
to disobey given by a body that is internally superior and outwardly autonomous.
According to Austin, every system of justice necessitates a sovereign who
creates the law (origin) while remaining unaffected by it (range), such as the
shooter in the bank scenario, who is the exclusive source of instructions and is
not subject to other people's requests. Hart believes that this is an erroneous
understanding of law, stressing out that laws can have multiple roots and that
legislators are routinely held accountable for the legislation they create.
Hart shows that, in contrast to Austin's "command theory," laws have a much
broader reach than coercive commands. Laws are frequently helpful, allowing
individuals to carry out authoritative activities such as drafting wills or
contracts with legal force. Hart claims that 'authority' of command is
intimately tied to the 'authority' of law, and because the 'authority' of law is
difficult to explain, we should reject the idea of 'command' because it is
associated with the same problematic concept.
Hart's answer to this difficulty is to replace the word "command" with the word
"order." Hart avoids the difficulty by using terms such as "order reinforced by
threats" and "coercive instructions," as well as stipulating the words
"obedience" and "obey."
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