Hart on the other hand, realized that self-interest may deviate from one's duty or obligation imposed on them by society. Hart contended that in reality, obligation was in fact a moral term. In Hart's view, when someone had an obligation to do something it did not always require compliance with the law. Duty or obligation could be formed by social pressure for conformity. Thus, when the example of the elderly lady needing assistance to cross the street is converged with Hart's theory, we have the obligation or duty to render some assistance. This obligation may not be backed up by sanction in a legal sense but is considered what is socially right. Thus, the union of morality and obligation does exist in direct contradiction of Austin's view. For a percentage of the population who disregard morality as unimportant, Austin's theory of impending sanction creating obligation may have an applicable usefulness. Nevertheless, in today's society where morality and social pressure are for the most part sufficient deterrents, Hart's distinction between being obliged to do something and having an obligation, reveals a serious fault in Austin's perception of law.
The next serious departure taken by Hart away from Austin is the nature in which the law was approached. It can be stated, "It is possible to be concerned with rules, either merely as an observer who does not himself accept them, or as member of society who accepts and uses them as guides to conduct. (Dimock, 2002, p.97) The first approached can viewed as external, while the latter viewed as internal. Austin's approached towards the law can be considered to have an external point of view. As remembered, Austin's theory of law was tied to a predictive approach. Austin viewed rules as merely signs of what was most likely going to happen. The external approach takes the view of an observer to the rules. It is only concerned with what is going to happen and contends that individuals are only troubled with rules that may impose sanction on them. With this point of view, it is taken that most would likely disobey the law if they knew they would be faced with no threat of sanction sanction. The external point of view tends to characterize an approach that the criminally minded would be inclined to take. It allows no room for "having a moral obligation towards the law" and is mainly applicable to only the criminal aspect of law. This aspect characterizes only a select few in society who have rejected the rules and what they stand for. It is not able to provide an explanation for those who believe in the integrity of the law, ignoring the moral backing that a law-abiding citizen carries with them.
Hart's approach towards the law takes the viewpoint of someone who approves the rules as proper standards of living. Unlike Austin, Hart does not associate obedience with the law solely with the predictive theory. This is where Hart's theory of obligation comes into actual practice. Hart contends that the existences of the rules themselves are good enough reasons for obeying the law. One may be obliged to avoid sanction, but ones compelling reason to obey the law should usually stem from an internal obligation. By disregarding the predictive theory, Hart is able to escape the analytical trap Austin seems to invite. Hart also contended that the external point of view was not able to serve those who used the law a social guide for life. Individuals such as lawyers, judges and legislators of the law, base their views on the idea that the law carries a certain social value. To ignore this and accept the external view would undermine the legal system from within. It then becomes obvious that in order to have functioning legal system, the majority of public must be willing follow the laws because they believe in what they stand for; not because they are afraid of sanction. This is Hart's strong point when denouncing the internal point of view. A society cannot enforce what in common it does not believe in or hold true. If rules are to be upheld, they must serve the bulk of society as a guide to life, distinguishing between having an obligation for compliance, and serving one's best interests.
For Austin, the command theory of law was adequate in providing a system in which rules could be laid and adjudication hence would follow afterward. Commands were described as the will or wish of a political superior that someone else refrains from participating in a certain act. These commands were coercive in nature and did not apply to the political superior who enacted them as law. This system devised by Austin was static in nature. Its primary setting did not allow for the conferring of power, nor did it enable changes to the system. Austin's system of the command theory had difficulties explaining what constitutional and internal law was comprised of. The major defect of the command theory was to relegate constitutional and international law to the ranks of positive morality. These were merely standards of opinion and held no legal validity in the justice system. Austin's regard for the law as only a means of upholding threat of sanction blinded him fact that laws of change or adjudication were in fact laws indeed. The linear nature of the command theory of law renders it useless when applied to a modern legal system. It fails to address issues of discrepancy between the law and characterizes all laws as coercive, which can be characterized as false.
At its base, Hart believed law comprises rules of general application, backed by threats given by people who for the most part are obeyed. (Dickenson, 1996 p.24) Where Hart's diversion from Austin becomes evident, is in his conception of law into two distinct categories. Hart stated that law could be viewed as consisting of primary and secondary rules. Primary rules dealt with human behavior and conduct. They outlined what was considered illegal and defined boundaries of human action. Secondary rules set out how primary rules were to be applied and eliminated. They also conferred power and set about how adjudication and change were to take place. Lastly, secondary rules created a system that set criteria by which a primary rule may be considered valid. Rules of change established legislative authority to alter the rules through statutes or judicial decision. Rules of adjudication were created to enforce primary rules. They identified who had the power to adjudicate and set procedure by which the adjudicators were to follow. For Heart, the rules of recognition differed greatly from Austin’s. They set the criteria by which a primary rule may be considered valid. Hart called these the “Ultimate rules” in a legal system. They were ultimate in nature due to the fact that their validity could not be contemplated. As it follows, a constitution under Hart’s theory of law could be legally recognized under the rule of recognition. Hart’s model has effective applicable qualities to modern legal system such as Canada’s today. Unlike Austin, Hart’s union of primary and secondary rules is able to escape Austin’s pre-legal notions. Hart also realized that it was unrealistic to claim that certain superior individuals were not subject to the laws they created. Hart’s notion of law can be easily imposed on today’s society. Less mechanistic then Austin’s, it illustrates everyday human practice and provides a realistic explanation of law.
Although Austin and Hart were both legal positivists by nature, the differences between their notions of law become apparent once given a closer look. Austin views while competent in nature, lack substance once applied upon a modern legal setting. Austin’s view of obligation tends to deviate from where its current definition lies in society. Hart is able to correct this by disassociating human motive from obligation and points out the necessary tie between one’s obligation and moral standing. The internal view towards law taken by Hart, characterize how a society for the most part strives to uphold its rules. Austin’s external view is a caricature of the criminal intent held by few in the community who do not correspond with the majority of law-abiding citizens, whose existence is imperative if a society is to have faith in its legal system. Hart’s conception of law consisting of primary and secondary rules set the stage for effective change and adjudication consistent with present legal societies. Unlike Hart, Austin’s command theory of law fails to incorporate constitutional law and laws of adjudication into the sphere of legal validity. This failure by Austin displays the relative ineffectiveness of the command theory of law when incorporated into a modern society. Hart’s corrections of Austin allow legal positivism to be an effective force in legal theory. While Austin provides a solid basis, it Hart who carries legal positivism into realistic model for the present day.
BIBLIOGRAPHY
Dimock, Susan, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto: Pearson Education Canada Inc, 2002).
Gregory, Dickenson, Understanding the Law (Toronto: McGraw-Hill Ryerson Limited, 1996).
