H.L.A. Hart
[This chapter of H.L.A. Hart's book is concerned with criticizing a view of the nature of law. The view being criticized is one put forth most famously by J.L.Austin. The view being criticized is (roughly) that law is a set of commands, put forth by governments, that are enforced using punishments.]
...
On this [Austin's and those he influenced] simple account of the matter, which we shall later have to examine critically, there must, wherever there is a legal system, be some persons or body of persons issuing general orders backed by threats which are generally obeyed, and it must be generally believed that these threats are likely to be implemented in the event of disobedience. This person or body must be internally supreme and externally independent. If, following Austin, we call such a supreme and independent person or body of persons the sovereign, the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign.
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IF we compare the varieties of different kinds of law to be found in a modern system
such as English Law with the simple model of coercive orders constructed in the last
chapter, a crowd of objections leap to mind. Surely not all laws order people to do or not
to do things. Is it not misleading so to classify laws which confer powers on private
individuals to make wills, contracts, or marriages, and laws which give powers to
officials, e.g. to a judge to try cases, to a minister to make rules, or a county council
to make by-laws? Surely not all laws are enacted nor are they all the expression of
someone's desire like the general orders of our model. This seems untrue of custom which
has a genuine though modest place in most legal systems. Surely laws, even when they are
statutes deliberately made, need not be orders given only to
These are some of the most important of many possible objections. Plainly some modification of the original simple model will be necessary to deal with them and, when they have all been accommodated, we may find that the notion of general orders backed by threats has been transformed out of recognition.
The objections we have mentioned fall into three main groups. Some of them concern the
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of origin, and range of application, the whole conception of a supreme and independent sovereign habitually obeyed, on which the model rests, is misleading, since there is little in any actual legal system which corresponds to it.
The criminal law is something which we either obey or disobey and what its rules
require is spoken of as a 'duty'. If we disobey we are said to 'break' the law and what we
have done is legally 'wrong', a 'breach of duty', or an 'offence'. The social function
which a criminal statute performs is that of setting up and defining certain kinds of
conduct as something to be avoided or done by those to whom it applies, irrespective of
their wishes. The punishment or 'sanction' which is attached by the law to breaches or
violations of the criminal law is (whatever other purpose punishment may serve) intended
to provide one motive for abstaining from these activities. In all these respects there is
at least a strong analogy between the criminal law and its sanctions and the general
orders backed by threats of our model. There is some analogy (notwithstanding many
important differences) between such general orders and the law of torts, the primary aim
of which is to provide individuals with compensation for harm suffered as the result of
the conduct of others. Here too the rules which determine what types of conduct constitute
actionable wrongs are spoken of as imposing on persons, irrespective of their wishes,
'duties' (or more rarely 'obligations') to abstain from such conduct. This conduct is
itself termed a 'breach of duty' and the compensation or other legal remedies a
'sanction'. But there are important classes of law where this analogy with orders backed
by threats altogether fails, since they perform a quite different social function. Legal
rules defining the ways in which valid contracts or wills or marriages are made do not
require persons to act in certain ways whether they wish to or not. Such laws do not
impose duties or obligations. Instead, they provide individuals with
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The power thus conferred on individuals to mould their legal relations with others by contracts, wills, marriages, &c., is one of the great contributions of law to social life; and it is a feature of law obscured by representing all law as a matter of orders backed by threats. The radical difference in function between laws that confer such powers and the criminal statute is reflected in much of our normal ways of speaking about this class of laws. We may or may not 'comply' in making our will with the provision of s. 9 of the Wills Act, 1837, as to the number of witnesses. If we do not comply the document we have made will not be a 'valid' will creating rights and duties; it will be a 'nullity' without legal 'force' or 'effect'. But, though it is a nullity our failure to comply with the statutory provision is not a 'breach' or a 'violation' of any obligation or duty nor an 'offence' and it would be confusing to think of it in such terms.
If we look into the various legal rules that confer legal powers on private individuals
we find that these themselves fall into distinguishable kinds. Thus behind the power to
make wills or contracts are rules relating to
We shall consider later the attempts made by jurists to assimilate those laws which provide facilities or powers and say, 'If you wish to do this, this is the way to do it' to the criminal laws which, like orders backed by threats, say, 'Do this whether you wish to or not.' Here, however, we shall consider a further class of laws which also confer legal powers but, in contrast to those just discussed, the powers are of a public or official rather than a private nature. Examples of these are to be found in all the three departments, judicial, legislative, and administrative, into which government is customarily though vaguely divided.
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Consider first those laws which lie behind the operation of a law court. In the case of a court some rules specify the subject-matter and content of the judge's jurisdiction or, as we say, give him 'power to try' certain types of case. Other rules specify the manner of appointment, the qualifications for, and tenure of judicial office. Others again will lay down canons of correct judicial behaviour and determine the procedure to be followed in the court. Examples of such rules, forming something like a judicial code, are to be found in the County Courts Act, I959, the Court of Criminal Appeal Act, I907, or Title 28 of the United States Code. It is salutary to observe the variety of provisions made in these statutes for the constitution and normal operation of a law court. Few of these seem at first sight to be orders given to the judge to do or abstain from doing anything; for though of course there is no reason why the law should not also by special rules prohibit a judge under penalty from exceeding his jurisdiction or trying a case in which he has a financial interest, these rules imposing such legal duties would be additional to those conferring judicial powers on him and defining his jurisdiction. For the concern of rules conferring such powers is not to deter judges from but to define the conditions and limits under which the court's decisions shall be valid.
It is instructive to examine in a little detail a typical provision specifying the extent of a court's jurisdiction. We may take as a very simple example the section of the County Courts Act, 1959, as amended, which confers jurisdiction on the county courts to try actions for the recovery of land. Its language which is very remote from that of 'orders', is as follows:
A county court shall have jurisdiction to hear and determine any action for the recovery of land where the net annual value for rating of the land in question does not exceed one hundred pounds.(1)
If a county court judge exceeds his jurisdiction by trying a case for the recovery of
land with an annual value greater than $ 100 and makes an order concerning such land,
neither he nor the parties to the action commit an
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some condition essential for the valid exercise of some legal power. If a would-be
testator omits to sign or obtain two witnesses to his will, what he writes has no legal
status or effect. A court's order is not, however, treated in this way even if it is
plainly one outside the jurisdiction of the court to make. It is obviously in the
interests of public order that a court's decision should have legal authority until a
superior court certifies its invalidity, even if it is one which the court should not
legally have given. Hence, until it is set aside on appeal as an order given in excess of
jurisdiction, it stands as a legally effective order between the parties which will be
enforced. But it has a legal defect: it
A statute conferring legislative power on a subordinate legislative authority similarly exemplifies a type of legal rule that cannot, except at the cost of distortion, be assimilated to a general order. Here too, as in the exercise of private powers, conformity with the conditions specified by the rules conferring the legislative powers is a step which is like a 'move' in a game such as chess; it has consequences definable in terms of the
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rules, which the system enables persons to achieve. Legislation is an exercise of legal powers 'operative' or effective in creating legal rights and duties. Failure to conform to the conditions of the enabling rule makes what is done ineffective and so a nullity for this purpose.
The rules which lie behind the exercise of legislative powers are themselves even more various than those which lie behind the jurisdiction of a court, for provision must be made by them for many different aspects of legislation. Thus some rules specify the subject-matter over which the legislative power may be exercised; others the qualifications or identity of the members of the legislative body; others the manner and form of legislation and the procedure to be followed by the legislature. These are only a few of the relevant matters; a glance at any enactment such as the Municipal Corporations Act, 1882, conferring and defining the powers of an inferior legislature or rule-making body will reveal many more. The consequence of failure to conform to such rules may not always be the same, but there will always be some rules, failure to conform to which renders a purported exercise of legislative power a nullity or, like the decision of an inferior court, liable to be declared invalid. Sometimes a certificate that the required procedures have been followed may by law be made conclusive as to matters of internal procedure, and sometimes persons not qualified under the rules, who participate in legislative proceedings, may be liable to a penalty under special criminal rules making this an offence. But, though partly hidden by these complications, there is a radical difference between rules conferring and defining the manner of exercise of legislative powers and the rules of criminal law, which at least resemble orders backed by threats.
In some cases it would be grotesque to assimilate these two broad types of rule. If a measure before a legislative body obtains the required majority of votes and is thus duly passed, the voters in favour of the measure have not 'obeyed' the law requiring a majority decision nor have those who voted against it either obeyed or disobey it: the same is of course true if the measure fails to obtain the required majority and so no law is passed. The radical difference in function between such as these prevthe use here of the terminology appropriate to conduct in its relation to rules of the criminal law.
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A full detailed taxonomy of the varieties of law comprised in a modern legal system,
free from the prejudice that all
Nevertheless the itch for uniformity in jurisprudence is strong: and since it is by no
means disreputable, we must consider two alternative arguments in favour of it which have
been sponsored by great jurists. These arguments are designed to show that the distinction
between varieties of law which we have stressed is superficial, if not unreal, and that
'ultimately' the notion of orders backed by threats is adequate for the analysis of rules
conferring powers as well as for the rules of criminal law. As with most theories which
have persisted long in jurisprudence there is an element of truth in these arguments.
There certainly are points of resemblance between the legal rules of the two sorts which
we have distinguished. In both cases actions may be criticized or assessed by reference to
the rules as legally the 'right' or 'wrong' thing to do. Both the power-conferring rules
concerning the making of a will and the rule of criminal law prohibiting assault under
penalty constitute
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threats, are always related to such rules; for the powers which they confer are powers to make general rules of the latter sort or to impose duties on particular persons who would otherwise not be subject to them. This is most obviously the case when the power conferred is what would ordinarily be termed a power to legislate. But, as we shall see, it is also true in the case of other legal powers. It might be said, at the cost of some inaccuracy, that whereas rules like those of the criminal law impose duties, power-conferring rules are recipes for creating duties.
The first argument, designed to show the fundamental identity of the two sorts of rule and to exhibit both as coercive orders, fastens on the 'nullity' which ensues when some essential condition for the exercise of the power is not fulfilled. This, it is urged, is like the punishment attached to the criminal law, a threatened evil or sanction exacted by law for breach of the rule; though it is conceded that in certain cases this sanction may only amount to a slight inconvenience. It is in this light that we are invited to view the case of one who seeks to enforce by law, as contractually binding, a promise made to him, and finds, to his chagrin, that, since it is not under seal and he gave no consideration for the promise, the written promise is legally a nullity. Similarly we are to think of the rule providing that a will without two witnesses will be inoperative, as moving testators to compliance with s. 9 of the Wills Act, just as we are moved to obedience to the criminal law by the thought of imprisonment.
No one could deny that there are, in some cases, these associations between nullity and such psychological factors as disappointment of the hope that a transaction will be valid. None the less the extension of the idea of a sanction to include nullity is a source (and a sign) of confusion. Some minor objections to it are well known. Thus, in many cases, nullity may not be an 'evil' to the person who has failed to satisfy some condition required for legal validity. A judge may have no material interest in and may be indifferent to the validity of his order; a party who finds that the contract on which he is sued is not binding on him, because he was under age or did not sign the memorandum in writing required for certain contracts, might not recognize here a 'threatened evil' or 'sanction'. But apart
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from these trivialities, which might be accommodated with some ingenuity, nullity cannot, for more important reasons, be assimilated to a punishment attached to a rule as an inducement to abstain from the activities which the rule forbids. In the case of a rule of criminal law we can identify and distinguish two things: a certain type of conduct which the rule prohibits, and a sanction intended to discourage it. But how could we consider in this light such desirable social activities as men making each other promises which do not satisfy legal requirements as to form? This is not like the conduct discouraged by the criminal law, something which the legal rules stipulating legal forms for contracts are designed to suppress. The rules merely withhold legal recognition from them. Even more absurd is it to regard as a sanction the fact that a legislative measure, if it does not obtain the required majority, fails to attain the status of a law. To assimilate this fact to the sanctions of the criminal law would be like thinking of the scoring rules of a game as designed to eliminate all moves except the kicking of goals or the making of runs. This, if successful, would be the end of all games; yet only if we think of power-conferring rules as designed to make people behave in certain ways and as adding 'nullity' as a motive for obedience, can we assimilate such rules to orders backed by threats.
The confusion inherent in thinking of nullity as similar to the threatened evil or
sanctions of the criminal law may be brought out in another form. In the case of the rules
of the criminal law, it is logically possible and might be desirable that there should be
such rules even though no punishment or other evil were threatened. It may of course be
argued that in that case they would not be
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nullity is
The argument which we have here criticized is an attempt to show the fundamental
identity of power-conferring rules wicoercive orders by
In its extreme form this argument would deny that even the rules of the criminal law, in the words in which they are often stated, are genuine laws. It is in this form that the argument is adopted by Kelsen: 'Law is the primary norm which stipulates the sanction'.(1) There is no law prohibiting murder: there is only a law directing officials to apply certain sanctions in certain circumstances to those who do murder. On this view, what is ordinarily thought of as the content of law, designed to guide the conduct of ordinary citizens, is merely the antecedent or 'if-clause' in a rule which is directed not to them but to officials, and orders them to apply certain sanctions if certain conditions are satisfied. All genuine laws, on this view, are conditional orders to officials to apply sanctions. They are all of the form, 'If anything of a kind X is done or omitted or happens, then apply sanction of a kind Y.'
By greater and greater elaboration of the antecedent or if-clauses, legal rules of every type, including the rules conferring and defining the manner of exercise of private or public powers, can he restated in this conditional form. Thus, the provisions
1
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of the Wills Act requiring two witnesses would appear as a common part of many
different directions to courts to apply sanctions to an executor who, in breach of the
provisions of the will, refuses to pay legacies: 'if and only if there is a will duly
witnessed containing these provisions and if... then sanctions must be applied to him.'
Similarly, a rule specifying the extent of a court's jurisdiction would appear as a common
part of the conditions to be satisfied before it applies any sanctions. So too, the rules
conferring legislative powers and defining the manner and form of legislation (including
the provisions of a constitution concerning the supreme legislature) can also be restated
and exhibited as specifying certain common conditions on the fulfillment of which (among
others) the courts are to apply the sanctions mentioned in the statutes. Thus, the theory
bids us disentangle the substance from the obscuring forms; then we shall see that
constitutional forms such as 'what the Queen in Parliament enacts is law', or the
provisions of the American constitution as to the law-making power of Congress, merely
specify the general conditions under which courts are to apply sanctions. These forms are
essentially 'if-clauses', not complete rules: 'V the Queen in Parliament has so enacted. .
.' or
This is a formidable and interesting theory, purporting to disclose the true, uniform
nature of law latent beneath a variety of common forms and expressions which obscure it.
Before we consider its defects it is to be observed that, in this extreme form, the theory
involves a shift from the original conception of law as consisting of orders backed by
threats of sanctions which are to be exacted when the orders are disobeyed. Instead, the
central conception now is that of orders to officials to apply sanctions. On this view it
is not necessary that a sanction be prescribed for the
This general theory may, as we have said, take one of two
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forms, one less extreme than the other. In the less extreme form the original conception of law (which many find intuitively more acceptable) as orders backed by threats directed to ordinary citizens, among others, is preserved at least for those rules that, on a common-sense view, refer primarily to the conduct of ordinary citizens, and not merely to officials. The rules of the criminal law, on this more moderate view, are laws as they stand, and need no recasting as fragments of other complete rules; for they are already orders backed by threats. Recasting is, however, needed in other cases. Rules which confer legal powers on private individuals are, for this as for the more extreme theory, mere fragments of the real complete laws-the orders backed by threats. These last are to be discovered by asking: what persons does the law order to do things, subject to a penalty if they do not comply? When this is known the provisions of such rules as those of the Wills Act, i837, in relation to witnesses, and other rules conferring on individuals powers and defining the conditions for valid exercise of them, may be recast as specifying some of the conditions under which ultimately such a legal duty arises. They will then appear as part of the antecedent or 'if-clause' of conditional orders backed by threats or rules imposing duties. 'If and only if a will has been signed by the testator and witnessed by two witnesses in the specified manner and if... then the executor (or other legal representative) shall give effect to the provisions of the will.' Rules relating to the formation of contract will similarly appear as mere fragments of rules ordering persons, if certain things are the case or have been said or done (if the party is of full age, has covenanted under seal or been promised consideration) to do the things which by the contract are to be done.
A recasting of rules conferring legislative powers (including the provisions of a constitution as to the supreme legislature), so as to represent them as fragments of the 'real' rules, may be carried through along the lines similar to those explained on page 36 in the case of the more extreme version of this theory. The only difference is that on the more moderate view the power-conferring rules are represented by the antecedents or if-clauses of rules ordering ordinary citizens, under threat of sanctions, to do things and not merely (as in the more extreme theory) as the if-clauses of directions to officials to apply sanctions.
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Both versions of this theory attempt to reduce apparently distinct varieties of legal rule to a single form alleged to convey the quintessence of law. Both, in different ways, make the sanction a centrally important element, and both will fail if it is shown that law without sanctions is perfectly conceivable. This general objection must be, however, left till later. The specific criticism of both forms of the theory which we shall develop here is that they purchase the pleasing uniformity of pattern to which they reduce all laws at too high a price: that of distorting the different social functions which different types of legal rule perform. This is true of both forms of the theory, but is most evident in the recasting of the criminal law demanded by the theory in its more extreme form.
The distortion effected by this recasting is worth considering for it illuminates many different aspects of law. There are many techniques by which society may be controlled, but the characteristic technique of the criminal law is to designate by rules certain types of behaviour as standard for the guidance either of the members of society as a whole or of special classes within it: they are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them. Only when the law is broken, and this primary function of the law fails, are officials concerned to identify the fact of breach and impose the threatened sanctions. What is distinctive of this technique, as compared with individuated face-to-face orders which an official, like a policeman on traffic duty, might give to a motorist, is that the members of society are left to discover the rules and conform their behaviour to them; in this sense they 'apply' the rules themselves to themselves, though they are provided with a motive for conformity in the sanction added to the rule. Plainly we shall conceal the characteristic way in which such rules function if we concentrate on, or make primary, the rules requiring the courts to impose the sanctions in the event of disobedience; for these latter rules make provision for the breakdown or failure of the primary purpose of the system. They may indeed be indispensable but they are ancillary.
The idea that the substantive rules of the criminal law have
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as their function (and, in a broad sense, their meaning) the guidance not merely of officials operating a system of penalties, but of ordinary citizens in the activities of non-official life, cannot be eliminated without jettisoning cardinal distinctions and obscuring the specific character of law as a means of social control. A punishment for a crime, such as a fine, is not the same as a tax on a course of conduct, though both involve directions to officials to inflict the same money loss. What differentiates these ideas is that the first involves, as the second does not, an offence or breach of duty in the form of a violation of a rule set up to guide the conduct of ordinary citizens. It is true that this generally clear distinction may in certain circumstances be blurred. Taxes may be imposed not for revenue purposes but to discourage the activities taxed, though the law gives no express indications that these are to be abandoned as it does when it 'makes them criminal'. Conversely the fines payable for some criminal offence may, because of the depreciation of money, become so small that they are cheerfully paid. They are then perhaps felt to be 'mere taxes', and 'offences' are frequent, precisely because in these circumstances the sense is lost that the rule is, like the bulk of the criminal law, meant to be taken seriously as a standard of behaviour.
It is sometimes urged in favour of theories like the one under consideration that, by recasting the law in a form of a direction to apply sanctions, an advance in clarity is made, since this form makes plain all that the 'bad man' wants to know about the law. This may be true but it seems an inadequate defence for the theory. Why should not law be equally if not more concerned with the 'puzzled man' or 'ignorant man' who is willing to do what is required, if only he can be told what it is? Or with the 'man who wishes to arrange his affairs' if only he can be told how to do it? It is of course very important, if we are to understand the law, to see how the courts administer it when they come to apply its sanctions. But this should not lead us to think that all there is to understand is what happens in courts. The principal functions of the law as a means of social control are not to be seen in private litigation or prosecutions, which represent vital but still ancillary provisions for the failures of the system. It is to be seen in the diverse ways in which the law is used to control, to guide, and to plan life out of court.
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We may compare the inversion of ancillary and principal, which this extreme form of the
theory makes, to the following suggestion for recasting the rules of a game. A theorist,
considering the rules of cricket or baseball, might claim that he had discovered a
uniformity hidden by the terminology of the rules and by the conventional claim that some
were primarily addressed to players, some primarily to officials (umpire and scorer), some
to both. 'All rules', the theorist might claim, 'are
The less extreme form of the theory would leave the criminal law and all other laws which impose duties untouched, since these already conform to the simple model of coercive orders. But it would reduce all rules conferring and defining the manner of exercise of legal powers to this single form. It is open here to the same criticism as the extreme form of the theory. If we look at all law simply from the point of view of the persons on whom its duties are imposed, and reduce all other aspects of it to the status of more or less elaborate conditions in which duties fall on them, we treat as something merely subordinate, elements which are at least as characteristic of law and as valuable to society as duty. Rules conferring private powers must, if they are to be understood, be looked at from the point of view of those who exercise them. They appear then as an additional element introduced by the law into social life over and above that of coercive control. This is so because possession of these legal powers makes of the private citizen, who, if there were no such rules, would be a mere duty-bearer, a private legislator. He is made competent to determine the course of the law within the sphere of his contracts, trusts, wills, and other structures of rights and duties which he is enabled to
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build. Why should rules which are used in this special way, and confer this huge and distinctive amenity, not be recognized as distinct from rules which impose duties, the incidence of which is indeed in part determined by the exercise of such powers? Such power-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be?
The reduction of rules conferring and defining legislative and judicial powers to statements of the conditions under which duties arise has, in the public sphere, a similar obscuring vice. Those who exercise these powers to make authoritative enactments and orders use these rules in a form of purposive activity utterly different from performance of duty or submission to coercive control. To represent such rules as mere aspects or fragments of the rules of duty is, even more than in the private sphere, to obscure the distinctive characteristics of law and of the activities possible within its framework. For the introduction into society of rules enabling legislators to change and add to the rules of duty, and judges to determine when the rules of duty have been broken, is a step forward as important to society as the invention of the wheel. Not only was it an important step; but it is one which, as we shall argue in Chapter IV, may fairly be considered as the step from the pre-legal into the legal world.