Does Hart's theory differ to the 'gunman writ large' situation?

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Mark Rose Group B

Jurisprudence Essay 1

Does Hart’s theory differ to the ‘gunman writ large’ situation?

When Hart began forming his legal theory a dominant view in legal theory literature was that law is best understood as the command of a sovereign to its subjects. The ‘command’ theory most actively propounded by, and identified with Austin, explained law as a matter of commands by a sovereign who is habitually obeyed by others, but who does not habitually obey others. There are regular patterns of obedience to these commands, and legal obligations exist insofar as the failure to obey is regularly followed by the application of sanctions.

Hart attacks this theory at almost every point. Crucially, he argues that to take the perspective that legal systems are made up of commands backed by threats, does not distinguish the orders of a terrorist or gangster from those of a legal system. The likelihood of suffering a sanction might oblige me to behave in a certain way, but it would not impose an obligation on me. ‘Law is surely not the gunmen situation writ large’ stresses Hart in his essay ‘The separation of law and morality.’  A legal system must surely be somewhat better, than the rule over a petrified public by gangsters where the general populace acts out of pure fear of the consequences. One acts in a valid normative system, because one believes one ought to do so and not merely because one fears the consequences of acting to the contrary.

To Hart the underlying fault with Austin’s approach is that it fails to consider the concept of a rule. The elements of Austin’s theory ‘do not include and cannot by their combination yield, the idea of a rule, without which we cannot hope to elucidate even the most elementary forms of law.’ However admits Hart, the idea of a rule is not a simple one and this is where his ‘internal aspect’ falls into place.

To Hart, law appears as a system of rules. Hart explains that when an accepted rule exists, the regular pattern of conforming behaviour is accompanied by an ‘internal’ aspect. People regard the rule from an ‘internal point of view’ treating it as a basis for evaluation and criticism of action. To elaborate on this further, Hart distinguishes ‘convergent habitual behaviour’ from ‘rule prompted behaviour.’

In following a habit such as in the example favoured by the theorist MacCormick, where most people go to the cinema on a Saturday night, this regular conduct does not demonstrate that there is an accepted rule that one ought to go to the cinema on a Saturday night. There can be no criticism for a failure to maintain a habit.  

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In stark contrast, where an accepted ‘rule’ is followed, such as that motorists should stop when approaching a red light, there exists the further feature of the subjects possessing an ‘internal point of view’. That is, the perspective of those living ‘internally’ to the legal system and applying its rules. This is the internal aspect and such people will display a ‘critical reflective attitude’ towards the maintenance of the rule which is to be looked to as a standard by which behaviour can be assessed and deviance therefrom criticised. Such an attitude manifests itself in “internal statements” such as ‘the ...

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