Reading

*Hart, The Concept of Law, chs 2-4

Laws, Commands and Orders

• Hart criticizes a concept of law based on commands and habits (most clearly pronounced by Austin)

• In ordinary language we have imperative language – there are requests, pleas, and warnings. There is the order of a gunman (give me money or I shoot you). We perhaps shouldn’t use order or command because they are too associated with the military and thus connote a degree of authority.

• But law is not like the orders of a gunman because:

  • Legal controls are mostly general, in that rather than having officials parade the streets looking for improper conduct which they deem illegal, general forms of directions that aren’t addressed to individuals but to everyone are used instead

  • Laws have ‘standing’ or persistent characteristic – they're meant to bound future classes of the same people time and time again. Gunmen, on the other hand, are not superior to the bank clerk except in that very moment where he’s able to make that threat – there is no continual belief in the consequences of disobedience (the order is not kept ‘alive’)

  • Laws must be followed by most people most of the time, whereas the mere temporary ascendency of one person over another as in the case of the gunman is the antithesis of law

• Thus a closer version to the law is “general orders backed by threats given by one generally obeyed”, where it is “generally believed that these threats are likely to be implemented in the event of disobedience” and the body giving the law must be “internally supreme and externally independent”.

Objections to the model

• Three main groups:

  • Content of laws: there are groups of laws that don’t conform to the order backed by threats model (eg. ways to make valid contracts/wills/marriages – those that provide facilities for achieving certain ends)

    • But laws that govern courts’ jurisdiction seem different – if I didn’t have two signatories to my will, it is void. But if a court surpasses its jurisdiction, its decision stands until (and unless) it is quashed by a higher court

    • Statutes conferring legislative power on subordinate legislators cannot be assimilated with a general order

      • However the desire for uniformity is strong, so we should consider arguments that these differences in variety of laws is superficial and that the ultimat notion of orders backed by threats is adequate:

        • Nullity as a sanction – objections:

          • Nullity may not be an ‘evil’ to the person who failed to satisfy the conditions required for validity

          • Criminal sanctions can identify an undesirable social conduct and sanction intended to prohibit it – this is not true of power-conferring laws, which seek to encourage conduct if anything

          • With criminal law it might be logically desirable or possible for these rules to exist without punishment (we can distinguish the rule prohibiting behavior and the provision for penalties) whereas the same cannot be said of power-conferring laws

        • Power-conferring rules as fragments of laws – laws do not prohibit conduct, they merely order officials to apply certain sanctions in certain circumstances (more extreme form); laws intended to govern the ordinary citizens are seen as orders backed by threats but power-conferring rules are seen as “if… then” constructions (if a will has been signed then the official shall recognize it)

  • Mode of origin of laws

    • Custom conflicts with the gunman view

      • But whether or not custom is law is subject to debate

      • Even if it is it’s a subordinate source of law in that it can be displaced by statute and whether courts recognize them in the first place is subject to discretion (eg. by applying ‘reasonableness’ test)

      • Objections:

        • Nothing can be law until someone orders it to be so (custom is not law until courts apply it)

        • Status of custom as law is due to the sovereign’s tacit order

  • Range of application of laws

    • The top-down view of authorities making laws binding its subjects can only be reconciled with political realities if an authority in his official capacity is separated from his private capacity (an official in official capacity creates rules that bind everyone including himself in his private capacity

    • Perhaps the better view is that legislation is the introduction of general standards of behavior to be followed by society generally; thus, the legislator is not like giving orders (outside the reach of what he does) but like making a promise, he must fall within the ambit of the promise (rule) he makes

Sovereign and the Subject

• In criticism of theory of orders backed by threats it’s necessary to consider whether there is always a sovereign who makes laws and who this sovereign is

Habit of obedience

• Habit of obedience – say people over time acquire a habit of doing (inter alia) what the sovereign orders him to do

  • Then nobody needs to express a view on whether his or others’ obedience is right/proper/legitimately demanded

• Differences between habit and law:

  • Habit is enough for behavior to converge in fact but for a law deviation must be considered wrong

  • For a law deviation from the standard should be considered a good reason for criticism

  • Laws have an internal aspect in that people strive to maintain it and view it as a general standard to be followed by the group of people as a whole

The persistence of law

• Laws clearly cannot be regarded as valid for the legislator’s lifetime only, but how do we recognize continued recognition of past laws?

  • Past statutes owe their present legal status to the acquiescence of the present legislature? This is surely wrong because courts when applying statutes don’t distinguish based on the acquiescence of present legislatures

Dworkin, Law’s Empire, 93-104

• Discussion is premised on the assumption that governments want to stay in power, and to make the nations they govern prosperous/powerful/religious/eminent. To do so they use force, but this force can never be used no matter how beneficial except as licensed by rights and...

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