Reyes, Lloyd Edgar G.

2006-06616

CHAPTER 2: Laws, Commands and Orders

Varieties of Imperatives

Under this chapter, Hart made a distinction between orders and laws through the linguistic method.
He draws a distinction between being obliged and being under an obligation to do something.
According to him, the first does not impose any obligation, while in the latter, an obligation is implied.

Using a scenario involving a gunman, Hart illustrates the word order under the imperative mood.
He asserts that when at gunpoint, a man orders the clerk to surrender money, it cannot be said that he is
pleading nor requesting. However, Hart states that this can neither be said to be a gunman giving an
order. While order and giving an order might seem to imply the same thing, Hart states that there
is a stark difference as the second implies a right or an authority.

Many nice linguistic questions may arise over such cases: we might properly say that the
gunman ordered the clerk to hand over the money and the clerk obeyed, but it would be
somewhat misleading to say that the gunman gave an order to the clerk to hand it over, since
this rather military-sounding phrase suggests some right or authority to give orders not present
in our case. It would, however, be quite natural to say that the gunman gave an order to his
henchman to guard the door. 1

Clearly, Hart espouses that as regards the clerk, the gunman has no right to give orders. He is merely
coercing the clerk with the threat of the gun. On the other hand, the gunman appears to be a superior
of the henchman thus there is a right to command him.

Further, Hart made a distinction between commands and orders backed by threats or coercive
orders.

This word, which is not very common outside military contexts, carries with it very
strong implications that there is a relatively stable hierarchical organization of men, such
as an army or a body of disciples in which the commander occupies a position of preeminence.
Typically it is the general (not the sergeant) who is the commander and gives commands,
though other forms of special pre-eminence are spoken of in these terms, as when Christ in the
New Testament is said to command his disciples. More important-for this is a crucial distinction
between different forms of 'imperative' -is the point that it need not be the case, where a
command is given, that there should be a latent threat of harm in the event of disobedience.2

Hart shows that commands are exercises of legitimate authority over men whom he has superiority
over. On the other hand, orders backed by threats are predicated on the fear of punishment.

Law as Coercive Orders

According to Hart, law possesses Generality. This means that laws are general in tow ways: 1) it
indicates a general type of conduct; and 2) it applies to a class of people, all of whom are expected to
1 Hart, H.L.A.; The Concept of Law; 1961
2 Hart, supra
comply.

The second characteristic, according to Hart, is the persistent characteristic of law. Whereas in the
gunman example, the same can be said to have ascendancy over the clerk because of his threat. Without
this threat, the clerk will not be compelled to comply. In essence, the gunman has no standing order
over the clerk, while the law must be followed time after time but a class of people.

Thirdly, Hart states that law, unlike the gunman example, features a general habit of obedience. He
said: The legal system of a modern state is characterized by a certain kind of supremacy within its
territory and independence of other systems which we have not yet reproduced in our simple model.3

In summary, Hart states that for a country to have laws in a legal system, it must be be internally
supreme and externally independent.

CHAPTER 3: The Variety of Laws

The Content of Laws

According to Hart, there are many types of laws: criminal, torts, obligations & contracts, wills, etc.
What they have in common is that they avenues for individuals to realize their wishes. Hart wrote:

Such laws do not impose duties or obligations. Instead, they provide individuals with
facilities for realizing their wishes, by conferring legal powers upon them to create, by certain
specified procedures and subject to certain conditions, structures of rights and duties within the
coercive framework of the law. The power thus conferred on individuals to mould their legal
relations with others by contracts, wills, marriages, etc., 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.4

Contrary to Austin, Hart believes that laws, or power conferring rules, are in place not to provide
sanctions but to enable citizens. An example where laws confer powers on individuals, but non-
compliance shall render an act void was also pointed out by Hart:

We may or may not 'comply' in making our will with the provision 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.5

According to Hart, there are many types of distinguishable kinds of rules. An example he gave was the
application of judicial rules: should a judge decide on an issue outside of his jurisdiction, this decision
may be voidable. In Hart's perspective, this is not an evil. To give better appreciation for his example,
Hart likens this to football:

In this case, if failure to comply with this essential condition did not entail nullity, the
3 Hart, supra
4 Hart, supra
5 Hart, supra
 rule itself could not be intelligibly said to exist without sanctions even as a non-legal rule. The
provision for nullity is part of this type of rule itself in a way which punishment attached to a
rule imposing duties is not. If failure to get the ball between the posts did not mean the 'nullity'
of not scoring, the scoring rules could not be said to exist.6

Hart then examines Hans Kelsen's meaning of law the primary norm which stipulates the sanction. In
its most simplest form, Kelsen's theory espouses that 'If anything of a kind X is done or omitted or
happens, then apply sanction of a kind Y'. Similar to Austin's theory, this definition of law revolves
around the concept of sanctions and punishments.

According to Hart, Kelsen's view of the law is a limited one. It follows a perspective of breach,
whereas Hart sees law to be able to provide a standard of conduct. Kelsen's view sees law from the
point of officials who will give out punishment, not of the every day man.

The Range of Application

Another criticism by Hart of law as the idea of ordering someone to do something is that it does not
take into account the fact that law also applies to those who make the law themselves. Thus, Hart
postulates that more than penalties, power conferring rules should be seen as promises that are
enabling.

The Mode of Origin

Hart states that laws are not orders. Orders have a mode of origin where it can be traced when and
where it was given or executed this is not the case for all types of laws. Hart points out the legal
status of customs, where it was gradually ingrained and not given as an order in a specific time. Even if
courts do not recognize customs as laws, these are indeed law because people internalize and obey
them.

6 Hart, supra