Austin purports that law is legally valid where it is issued by a someone (i.e. a Sovereign) who is habitually obeyed, with consequential sanctions if its subjects do not comply with it (“command theory”). Sanctions are key to his theory of validity as without them, commands would be no more than requests. This posited an antiseptic separation between law and morality (Kellogg 2007, p.-36).
While Austin’s theory is simple and easy to follow, it is unpersuasive insofar as it apperas to be an over-simplistic and inadequate account of the law. His theory exclusively focused on law in its vertical and duty-imposing guise, habitual obeyance and largely lacked the concept of rules (Schauer, ...view middle of the document...
Austin’s proposition of sanctions as a sole criterion for valid and legally binding law tends to be reductionist in nature and fails to account for many real life circumstances. Therefore, as a whole, his theory is largely unpersuasive.
In contrast, although Hart’s theory is fallible to a certain extent, his theory is more holistic (compared to Austin) and is better able to explain what makes the law a law in a systematic manner. Further, the posivitist theory he proposes is one that is fundamental and descriptive.
Hart characterizes the legal system as a union of primary and secondary rules. Instead of habits, Hart proposes that legally binding rules are created by the only if there is a social practice of treating that source of directives as binding. This culminates in his theory that the legal system is one of primary rules which are recognized and validated by the secondary Rule of Recognition. Primary rules tells the citizen what he can and cannot do. The secondary Rule of Recognition is an open-textured concept and in itself cannot be assessed as it is a complex social fact about official attitudes and practice. It exists when it is accepted and employed in general practice, especially where courts, legislators, officials and citizens act in a consistent way that corresponds with the presumed existence and acceptance of such a rule (MIT Philosophy of Law, 2012). This Rule of Recognition can be complex and incorporate hierarchial aspects of a legal system – this is illustrated in Singapore where amongst the sources that validate what a primary rule is, the Constitution is more supreme than Statutes.
As to the “internal” aspect of the law, Hart proposes that primary rules are also valid to a certain extent as they are accepted standards of behaviour whereby citizens are internally induced to comply with the law regardless of the existence of force simply because they accept the rule as a standard for their behaviour of society (i.e. social habits). Hart believes that his Rule of Recognition is essential as a system with only primary (duty-imposing) rules will face several problems. These include uncertainty as to what the rules actually are, resulting inefficiencies arising from disputes as to whether a rule was actually broken, and a static system where changes in the rules has to occur organically. Such a justification is persuasive a pragmatic lawyer as certainty and efficacy is of paramount importance.
Certainty in the law is buttressed by the fact that Hart posits that substantive morality can be separate from the concept of rules and its validity. Simply put, a substantively unjust law is still valid if it is recognized by the sources that constitute the Rule of Recognition. Where the Natural law position may present difficulties in ascertaining what rules are morally desirable, a highly subjective matter, the Hartian view gives a more certain indication of what is considered law. However, Hart does not totally discount morality...