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In an attempt to answer the question What the law is? Professor J. L. Austin proposes a Command Theory of Law. One way of understanding this theory of traditional positivism is to compare it to the famous empires of Medieval Japan.
These empires consisted of a single Emperor, or a sovereign, that was considered to have the complete obedience of the people in his empire. Another aspect of his authority is the idea that there is no other political figure higher than the Emperor. With such power and status at his disposal, the Emperor is able to inflict any degree of punishment that he sees fit if his commands are not carried out or followed. In describing law as being a command backed by threats of punishment for insubordination, Austin is not arguing that any type of command be considered a law.
It would be absurd to think a father commanding his son to take out the garbage would be a type of command to be considered a law. Rather, being that laws govern entire groups and societies, the commands must originate from an authoritative source or pedigree that the people in the society give obedience to. In analyzing Professor Austins theory of law, Professor H. L. A. Hart argues that Austin fails to describe the true essence of law.
Hart views Austins command theory of law as no different than a gunman commanding a bank teller to give him the money. In this example, the gunman is in a position of authority (in relation to the bank teller) and is capable of inflicting lethal punishment to the bank teller if his commands are not carried out. Thus, as Hart contends, the bank teller would feel obliged to hand the gunman the money for fear of the consequences that may follow if he does not give the money over to the gunman. It is apparent that the fallacy of such a theory is that it does not accurately describe what the law is and where it comes from. One may extract from such a theory the presumption that the strongest person / group in a particular society will be the one capable of administering commands with threats of punishment. But, as an observer can see in modern society, the administers of the law are not always the most powerful in the community.
For example, the United States, although most of its power is embodied in the President, he does not have complete autonomy over his fellow citizens. Quite the contrary, the President in many respects is accountable to the citizens. In contrast to this view, Hart proposes that the law is really a system of rules. Hart believes that the idea of rules can be viewed in two different perspectives: the internal point of view and the external point of view. To explain these points of view, Hart provides another helpful example: the different observations of a traffic signal. Hart describes the external point of view as an observer that is outside of the system and notices a pattern in the way the cars go, slow down and stop as the traffic light changes colors.
Although he notices a pattern in these cars behaviors he cannot ascertain the reason for these behaviors. On the other hand, the internal point of view is an observer that operates within the system, or in the words of Hart, is a member of the group. She understands the red light to represent not just a signal, but a reason to stop. She understands that such a rule guides the behaviors of the majority of society in a uniform fashion, and to cooperate with such rules is to maintain the order of society. Thus, Hart argues, the person must have an internal point of view to fully appreciate the importance of rules on society. A legal system consists of rules that the people feel they have an obligation or a duty to follow.
Hart, recognizing the various types of rules, does state that not all rules require the obligation that the law requires. An example he gives of such a rule is the rules of etiquette. Proper etiquette in a society, although it is beneficial, is not of the utmost importance for a society to uphold or require its citizens to feel obligated to follow. Instead. there are three factors that makes the rules of law unique: (1) they are attached to extreme social pressure that demand obligation and duty to the rules, (2) they assist in the well-being of society, and (3) the obligation to these rules requires individuals to accept the common interest of the society they live in over his / her personal interests.
Expanding on his theory of rules, Hart describes a complete legal system as having two sets of rules: primary rules and secondary rules. The primary rules can be seen as laying out what the individuals can and cannot do. The secondary rules function as the administrator of the primary rules. The secondary rules are able to create criterion for what can and cannot be a primary rule, weed out all the uneccesary elements present in the primary rules, make additions to the primary rules, and determine how the rules will be applied. Emphasizing the importance of the combination of these two sets of rules, Hart urges the reader to imagine a system that is governed solely by the primary rules. One defect of this so-called primitive community is the uncertainty of applying and distinguishing these rules.
No set standard would be in place to distinguish rules that require obligations and rules that do not require it. The secondary rules remedy for this defect is the rules of recognition. These rules determine which rules can be enforced by social pressure and what rules are considered legally valid. A rule is considered legally valid if it was enacted by some authoritative body (i. e.
a legislature), if it is a product of the customs of the society, or if it has been established through judicial precedent. The second defect of this pre-legal world is that the rules would be static. Society will eventually change over time; therefore, some rules will also need changing. Since there are no laid out procedures as to how rules can be changed, the rules are left to evolve through what Hart calls the slow process of growth. Again, the secondary rule provides the necessary solution: the rules of change. Here, the secondary rule acts as the editor of the primary rules, enabling quick corrections of outdated rules and also allowing for new additions to be added to the set of primary rules.
The last defect of Harts incomplete system example is the inefficiency of social pressure. Primary rules alone would not be able to lay out the procedures for punishment of rule violations. Rather, the social pressures of the society would hand the administering of punishment over to those individuals or groups that were affected by the violation. Instead of being a system of legality, Hart contends it will become a system of vendettas. The secondary rules final element that completes a legal system is the rules of adjudication. The best way in understanding this remedy is by comparing it to the judicial system that is applied in the United States.
Rules in the American legal system lays out who is to hear cases of rule violations and how they are to apply appropriate punishment over the violators. Hart states that these rules are able to incorporate important legal concepts, such as the concepts of judge or court, jurisdiction and judgement. An important aspect of Harts theory that deserves noting is the idea of his pedigree thesis. Usage of the word pedigree seems to make Hart mirror Austins theory. But, one should not let mere commonality in word usage to mean that both philosophers apply the word in the exact same context.
Instead of using Austins view of law originating from a sovereign, Hart establishes his rules of recognition as the origin of law. In Harts view, the judge is given exceptional authority in determining what rules are primary rules. Such a contention does not seem irrational at all when applied to reality. Judges have gone through specialized legal training and almost all have had much experience as advocates of law. Who else would better fit the duty of discerning what is to be law and what is not? Hart gives a wonderful metaphor of a juge resembling the actions of a referee in a game.
They give the final decision as to if a play is considered a score or not. Thus, the courts and its judges could be seen as society's reference point in deter...
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Research essay sample on Point Of View Command Theory
