Saturday, September 17, 2016

Is The Concept of Law a Good Book? Part 5: The Originality of Hart's Critique of Austin

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.

Hart presented three challenges to Austin’s view in chapter 3:

(a) Laws may impose duties on those who make them. Therefore, the claim that law is a command issued by someone who is not subject to the command is false.

(b) Some laws are power-conferring: contract law or probate empower people to do certain things, they do not command them to do anything. 

(c) Customs’ status as law is not the product of any “conscious law-creating act,” so it is false to think of law’s as limited to intentional commands.

Here is the now-forgotten Jethro Brown, writing in 1906, and summarizing some earlier criticisms of Austin:
Here is Brown, making the point that the command theory does not fit customary law:
Brown also considered the idea of empowering laws as commands to someone else (“a statute empowering Borough Councils to impose a new rate is also a command to the subjects to pay the rate when called upon to do so”, “It may be said of [rules that allow people to create a corporation] that they involve a real imperative, i.e. the command to the judge”). 

Before Brown, James Bryce, writing in 1901, explained why Austin’s view of sovereignty was inadequate for most countries in the world, where the lawmaker is constrained by law:
At times, not just the ideas are familiar, even the words used are similar. Here is Hart:
To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority. [CL 20.]
And here is Jethro Brown again:
The essence of command consists in the fact that it is imposed by a body which speaks with authority and can somehow or other punish disobedience, not in the fact that its being obeyed through fear of a penalty. [Brown, The Austinian Theory of Law, 343–44.]
Not early enough? Sources too obscure? How about the Encyclopædia Britannica (9th ed., 1882), volume 14, in the entry “Law”:
That Hart knew of these books is not in question. In 1953 he was asked to write a short survey about jurisprudence in Britain. His essay contains a list of leading jurisprudential books used in British universities. Here is how the list begins:
When understood in context—when we remember that The Concept of Law was intended as an introductory text on jurisprudence and was based on lectures delivered to undergraduate law students—the opening chapters of The Concept of Law are understandable (although citation to some of these earlier works would have been appropriate). Austin was a convenient way to start the discussion, and the relative simplicity of his ideas made it easy to introduce the subject with his work. It is not widely known today, but even in this respect The Concept of Law is not original. By the time it was published, opening a course on jurisprudence with Austin-bashing was itself an established practice. Jolowicz, in his Lectures on Jurisprudence (published 1963, but based on lectured delivered between 1924 and 1948) said that “Austin’s doctrine forms a very good target—we must set it up and see it clearly in order to throw bricks at it” (Old habits die hard: Shapiro and Marmor.)

If The Concept of Law had been treated for what it is, a textbook for students, none of this would have mattered much. It does matter against the familiar refrain that before Hart jurisprudence was an amateurish and unsophisticated and that with The Concept of Law Hart made it “professional.” It’s difficult to see how this is so when the same arguments Hart made are found in the writings of the “dilettantes” who preceded him. 

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