It’s time to come back to The Concept of Law after a long hiatus. And after my extended discussion of Hart’s methodological confusions, it’s time to get to substance. Chapters 2 to 4 of the book are dedicated to the explication and critique of John Austin and, to a lesser extent, of Hans Kelsen. It is often said that it was Hart’s arguments in these chapters that dealt a decisive blow to Austin’s work and more generally demolished the command theory of law. Let us consider these claims in order.
To give Hart credit for his critique of Austin’s ideas, or “command theories” more generally, suggests that until Hart came on the scene Austin was considered something of an established truth. The reality is that not one of the arguments Hart presented against Austin was novel. In fact, by the time The Concept of Law was published, the arguments against Austin were more than half-a-century old.