Philosophy Of Law Command Theory of Law

Philosophy Of Law

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 garbbage 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 pressumption 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 administors 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 uptmost 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 demmand 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 usuage 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 disserning 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 societys reference
point in determining the validity of a rule as a law. Thus, if a rule has never
been endorsed by legal precedent, it would be very difficult for such a rule to
gain ground in legal validity.

Hart attempts to show that his theory of law differs from Austins view of law in a
way that it lays out a new and improved form of positivism. He argues that a
complete legal society is comprised of a system of primary and secondary rules.
This, he contends, is the true essence of law. With these rules a person is able
to understand what the law is (rules of recognition), how it evolves (rules of
change) and where it comes from (rules of adjudication). More importantly, in
Harts view, a person can also explain the reason why a person follows the law
(social pressure, maintaneance of society, and social interest as superior to
personal interest).

After laying out his new and improved positivism, Hart sees it necessary to
dwell in an attempt to unravel a very contraversial question: Is law and morality
connected? Hart begins his discussion by entertaining the idea that there is some
overlapp between morality and law. One very apparent overlapp is in their usuage
of words, both applying words like rights, obligations, and duties into
their argumentation. Another characteristic that they both share is the way in
which they operate without the consent of the people that live under their rules.
Hart recognizes that both law and morality utilize social pressure to gain
conformity of its bounded people. Also, as a form of governing the people that
live under their rules, law and morality deal with events that constantly reoccur
in the lives of its people. Under these reoccuring activities moral and legal
obligations attempt to dictate to its people what to do and not do. Such moral
codes, like those of the legal obligations and duties, require a sacrifice of
personal interests that is necessary for the survival of the society.

Hart argues that Traditional Naturalisms simple belief of what is moral is law
over simplifies the connection between law and morality. The naturalist argues
that all things (animate and inanimate) proceed toward a specific goodor the end
in which it is uniquely appropriate for that object. Hart contends that such a
teleogical view brings in too much metaphysics into a very simple fact of life.
The main goal of all human beings is Survival. Humans, in their attempt to coexist
with their fellow human being, accept certain rules of conduct that allow for their
own survival and the survival of the society they are a part of. Thus, this goal
is well served under, what Hart labels, the universally recognized principles of
conduct that is present in both law and morality. This is what Hart calls the
minimum content of Natural Law. In essence, Harts argumentation is that due to
humans aim for survival, there is a reason why one should expect certain similar
content to arise in law and morality. Without such content, the ability of law
and morality to best serve human beings would be diminished and people would not
pay voluntary alliegance to law and morality. As reaction to this lack of
voluntary alliegance, Hart states it would be impossible to persuade people to
voluntarily conform. So it can be seen that Hart argues people in a society would
expect to see certain contents in their laws and in their morality.
Due to this minimum content, Hart argues that there is a connection between
law and morality and it can be seen in 6 forms. Firstly, there is a legal and
moral connection of voluntarily obeying the power and authority of the system one
lives under. Although, a person need not see him/herself as bound by such a moral
obligation. Hart argues the that the stability of the system will still be intact
if moral obedience to authority does not occur. A second form is that morality has
an influence on law. It seems rational to follow Harts argument that it is
virtually impossible to determine if law is really influenced by law. But, if laws
has such an influence or not, history has shown that law will survive either which
way. A third argument is that judges may use their interpretation of law to argue
some specific morality in thier rulings that they deem as helpful or necessary for
society. Yet, there is also the counter argument that stress that judges are
unable to apply social moral values because they are blind to them or are unable to
apply them correctly. In support of this counter argument, consider the following
example in American Jurisprudence: the justices on the U.S. Supreme Court is in a
position to bestow their moral values on to their case opinions. But, there will
be cases were it deals with conditions and people that unfamiliar to the justices.
Yet, the justices still apply their opinions, although they may be improperly
applied or formulated. The fourth form of the law and morality connection is that
of the criticism of law. Following along the lines of the second form, it is
Harts argument that even if one was to state that a complete legal system requires
conformity to some moral standard, the question that would arise is to what type of
moral standard would be considered appropriate and to what extent should the legal
system conform to such a standard. Hart contends that regardless of a persons
claim that the legal system must conform to the moral standards, is not necessary
for the structured framework of primary and secondary rules. Due to such a
framework, moral standards would be unable to alter any of the mechanisms that
comprise this framework Fifthly, in dealing with the principles of legality and
justice, Hart defines justice as being able to apply some rule of law to a variety
of people without prejudice. Because of this definition, it logically proceeds
that it is possible to apply an immoral law justly as long as one distributes it to
a variety of people without prejudice. Thus, Hart has attempted to display the
general idea that if morality was connected to law there would be no positive or
negative affects to law.

Lastly, on the issue of legal validity and resistance to law, Hart draws the line
as to where his connection of law and morality ends. To express both sides of the
arguments Hart raises the grudge informer cases of Nazi Germany during World War
II. On one side, Hart argues that there is the wider Positivists concept of law,
and on the other is the narrower Naturalists concept of law. Hart states that
adopting a wider concept will allow a person to take into account all rules that
passed the conditions of secondary rules criteria. He warns that such a broad
concept allows for a person to take into account the rules that counter and
violates societys morality. Hart states that the main difference between the
Positivists wider concept and the Naturalists narrow concept is that the narrow
concept is unable to deal with rules that violate a societys morality.

Because the Naturalists narrow concept is unable to take into account those rules
that violated societys morality, Hart endorses the Positivists wider concept.
Harts main reason for endorsing the wider concept is that nothing is to be gained
by overlooking rules that violated a societys morality. Such an argument is one
of common sense. If one is to only look at one side of an argument, that person
would lose the important and bigger picture of that arguement. For example, if a
scientist was to devote her time only on one possibile result of an experiment,
rather than take into account all the possible results, can she truely state she
has given proper legitamacy to her study? Thus, to turn a blind eye to the
possibility that there are laws that violate societys morality, but was or is
still a law of society, is to not deal with reality at all. Hart acknowledges the
fact that such moral violations is not beneficial for society. So, following
Harts line of reasoning, the avoidance of a problem in society will not fix the
problem that the society haves or had.

Hart seems to end his debate with a very clear and persuasive tone. He has shown
the common sense in not avoiding a rule just because of its abusive elements on
morality. For like a scientist, a positivist can use this rules special
characteristics to study its affects on society and then make a general, unbiased
judgement of the rule.
Category : Philosophy

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