Breaking down the Austinian Sovereign
Philosophy of Law Paper #1
Jurist H.L.A. Hart makes two points about Command Theory in his work The Concept of Law that shows it offers an incomplete picture of our current legal system. First, that we are not governed only by rules that call for action or inaction. Second, that rules of recognition, not a sovereign, are the foundations of a legal system. Advanced mainly by John Austin, the legitimacy Command Theory has become archaic with time as more comprehensive observations about systems of law are made. First, Command Theory states that the sovereign is the sole source of law, dealing out punishments to people who do not obey the sovereign. Second, the sovereign is above the law, meaning it can act however it wishes without regard of its own laws. Hart believes that these two statements do not accurately represent our legal system.
Hart disagrees with the idea that the only kinds of rules are those that require action or inaction-- “primary rules of obligations” (Hart, pg. 91). Rules that call for action or inaction are usually the ones that we are most aware of, such as rules that deny us the ability to steal, or rules that require us to obtain a form of state ID. Austin’s theory states that the sovereign creates legal rules by threatening sanctions for those who do not obey the laws. Hart, however, writes that these kinds of laws are not enough for a functioning legal system. He makes the point that communities without any legal system contain only primary rules. In such a community “the rules by which the group lives will not form a system, but will simply be a set of separate standards…They will in this respect resemble our own rules of etiquette” (Hart, pg. 92). This sub-legal community poses three problems Hart identifies that can only be solved by “…supplementing the primary rules of obligation with secondary rules which are rules of a different kind” (Hart, pg. 94). He continues: “[Secondary rules] may all be said to be on a different level
Jurist H.L.A. Hart makes two points about Command Theory in his work The Concept of Law that shows it offers an incomplete picture of our current legal system. First, that we are not governed only by rules that call for action or inaction. Second, that rules of recognition, not a sovereign, are the foundations of a legal system. Advanced mainly by John Austin, the legitimacy Command Theory has become archaic with time as more comprehensive observations about systems of law are made. First, Command Theory states that the sovereign is the sole source of law, dealing out punishments to people who do not obey the sovereign. Second, the sovereign is above the law, meaning it can act however it wishes without regard of its own laws. Hart believes that these two statements do not accurately represent our legal system.
Hart disagrees with the idea that the only kinds of rules are those that require action or inaction-- “primary rules of obligations” (Hart, pg. 91). Rules that call for action or inaction are usually the ones that we are most aware of, such as rules that deny us the ability to steal, or rules that require us to obtain a form of state ID. Austin’s theory states that the sovereign creates legal rules by threatening sanctions for those who do not obey the laws. Hart, however, writes that these kinds of laws are not enough for a functioning legal system. He makes the point that communities without any legal system contain only primary rules. In such a community “the rules by which the group lives will not form a system, but will simply be a set of separate standards…They will in this respect resemble our own rules of etiquette” (Hart, pg. 92). This sub-legal community poses three problems Hart identifies that can only be solved by “…supplementing the primary rules of obligation with secondary rules which are rules of a different kind” (Hart, pg. 94). He continues: “[Secondary rules] may all be said to be on a different level