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Jurisprudence Hart vs Austin
Jurisprudence (University of Oxford)
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According to Hart, how does the law differ from the ‘gunman situation writ
large’? In rejecting Austin’s command theory, did Hart underplay the central
role of coercion and sanctions in understanding the nature of law?
In his work “The Province of Jurisprudence Determined” John Austin formulated what has
come to be known as the “command theory” to describe the nature of law. Summarised
at its simplest form Austin states that law is in essence command (i.e. order backed by a
threat).
The existence of law is hence like a gunman ordering a clerk in a bank to hand over the
money.
This description of law has been famously rejected by HLA Hart in “A Concept of Law” in
which he sought to differentiate that ‘gunman situation’ from legal obligations.
I will firstly outline the arguments Hart employs in seeking to differentiate the two
concepts.
Thereafter I will address the second question and argue that Hart rightly rejected the
command theory and did not thereby underplay the central role of coercion and
sanctions. In doing so I will attempt to show that coercion and sanctions are not central to
understanding the nature of law and that while law can be coercive it is not necessarily
so.
In distinguishing the nature of law from the ‘gunman situation’ Hart brings forward four
central arguments in Chapter II and III. I will call these general application argument,
‘standing order’ argument, continuous authority argument and variety argument.
Firstly, Hart argues law differs from orders by a gunman because law is of general
application. A legal system functions by directing standard generalised orders at a public
at large and individual direction play an ancillary role only. Unlike in the case of the
gunman who directs his order at one person (the clerk) legal rules prescribe a standard
mode of acceptable conduct for a general class of persons.1
In reality there is no real parallel to the face-to-face situation of the gunman even in
criminal statutes that resemble most closely the concept of law being orders backed by
threats.
Hart’s second argument is that of the lack of what he calls “standing orders” 2 in the
gunman scenario. Laws generally have a ‘standing’ or persistent characteristic, i.e they
are meant to be valid over a longer period of time. The order of the gunman on the other
hand is a one-off direction and there is no continuing relationship between the parties
1
HLA Hart, The Concept of Law, 2nd ed. 1994, p.7
2
Ibid. P.23
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Jurisprudence Hart vs Austin
Jurisprudence (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
According to Hart, how does the law differ from the ‘gunman situation writ
large’? In rejecting Austin’s command theory, did Hart underplay the central
role of coercion and sanctions in understanding the nature of law?
In his work “The Province of Jurisprudence Determined” John Austin formulated what has
come to be known as the “command theory” to describe the nature of law. Summarised
at its simplest form Austin states that law is in essence command (i.e. order backed by a
threat).
The existence of law is hence like a gunman ordering a clerk in a bank to hand over the
money.
This description of law has been famously rejected by HLA Hart in “A Concept of Law” in
which he sought to differentiate that ‘gunman situation’ from legal obligations.
I will firstly outline the arguments Hart employs in seeking to differentiate the two
concepts.
Thereafter I will address the second question and argue that Hart rightly rejected the
command theory and did not thereby underplay the central role of coercion and
sanctions. In doing so I will attempt to show that coercion and sanctions are not central to
understanding the nature of law and that while law can be coercive it is not necessarily
so.
In distinguishing the nature of law from the ‘gunman situation’ Hart brings forward four
central arguments in Chapter II and III. I will call these general application argument,
‘standing order’ argument, continuous authority argument and variety argument.
Firstly, Hart argues law differs from orders by a gunman because law is of general
application. A legal system functions by directing standard generalised orders at a public
at large and individual direction play an ancillary role only. Unlike in the case of the
gunman who directs his order at one person (the clerk) legal rules prescribe a standard
mode of acceptable conduct for a general class of persons.1
In reality there is no real parallel to the face-to-face situation of the gunman even in
criminal statutes that resemble most closely the concept of law being orders backed by
threats.
Hart’s second argument is that of the lack of what he calls “standing orders” 2 in the
gunman scenario. Laws generally have a ‘standing’ or persistent characteristic, i.e they
are meant to be valid over a longer period of time. The order of the gunman on the other
hand is a one-off direction and there is no continuing relationship between the parties
1
HLA Hart, The Concept of Law, 2nd ed. 1994, p.7
2
Ibid. P.23
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