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Nuruddin, Mardheeya S

2011 34389
H.L.A. Hart – The Concept of Law

Laws, Commands, and Orders

1. Varieties of Imperatives

He considers linguistic differences between orders and laws and this introduces the reader to what is often called ‘the
linguistic method’ or the ‘method of linguistic philosophy’. Famously, Hart draws a linguistic distinction between our
standard use of the term ‘being obliged’ (that is being coerced) to do something and ‘being under an obligation’ (that is
being under a duty) to do something, saying that in the former case, no obligation was implied.

IMPERATIVE MOOD: Hart starts with his definition of the ‘imperative mood’ with the word ‘order’ and gives the
gunman example, a hypothetical situation, in which a gunman demands a bank clerk tohand over cash at gunpoint. By
the use of this scenario, Hart distinguishes between different imperatives, saying that the gunman is certainly not
‘pleading’ or ‘requesting’ the bank clerk to hand over the money he is ‘ordering’ him to do so. He then takes this position
one step further by saying that although one can assume that the gunman ordered the clerk to hand over the money, it
would be difficult to regard this as the gunman ‘giving an order’ [Note: makes a distinction between an order and giving
an order] because the later suggests some right or authority which is not present in the given situation. The bank clerk is
forced tohand over the money because the gunman has a gun pointing to his face and not becausehe is the clerk’s superior
or boss. The gunman can however, ‘give an order’ to his henchman guarding the door. In summary, a legal obligation or
a duty is different from being obliged or forced to do something. When the gunman orders the clerk to hand over the
money, it will be misleading to say that he is ‘giving an order’ to the clerk.

COMMAND: A command is, however, too close to law for our purpose; for the element of authority involved in law has
always been one of the obstacles in the path of any easy explanation of what law is. We cannot therefore profitably use, in
the elucidation of law, the notion of a command which also involves it.

A distinction between commands and orders backed by threats. A distinction he feels has been largely ignored by Austin.

Commands

 The word command carries a strongimplication that there is a relatively stable hierarchal society of men in which
the commander occupies a position of preeminence.
 A command means to exercise authority over men, NOT power to inflict harm, and though it may be combines with
threats of harm in case

Orders Backed by Threats

 An OBT is an OBT. It requires compliance notbecause of respect but solely due to the fear of threat of punishment
or sanctions.

CONCLUSION: The idea of a command and its strong connection and respect for authority is much closer to law
than the gunman’s order backed by threats- which Austin misleadingly calls a command.
Nuruddin, Mardheeya S
2011 34389
2. Law as Coercive Orders

Generality is the first feature we should add to the model of the gunman if it is to reproduce for us characteristics of
law.

No society could support the number of officials necessary to secure that every member of the society was
officially and separately informed of every act he was required to do. Hence, law possesses GENERALITY
and the standard form even of a criminal statute (which has the closest resemblance with an order backed by
threat) is general in two ways;

(i) It indicates a general type of conduct.


(ii) Applies to a general class of persons who are expected to comply with it.

If the primary general directions are not obeyed by a particular individual, officials may draw his attention to them
and demand compliance, as a tax inspector does, or the disobedience may be officially identified and recorded and
the threatened punishment imposed by a court.

Legal control is therefore primarily, though not exclusively, control by directions which are in this double sense
general.

Austin has spoken of laws being ‘addressed’ to classes of persons.

Laws are complete when they are made, it is desirable that they are brought to the notice of the general public, but they are
in a finished form whether or not they are conveyed to the public. The order of the gunman would have no force if the clerk
was unafraid o him or if it were said in an empty room.

Persistent characteristic of law: Besides the introduction of the feature of generality to the gunman model, a more
fundamental change must be made. It is true there is a sense in which the gunman has an ascendancy or superiority over
the bank clerk; it lies in his temporary ability to make a threat, which might well be sufficient to make the bank clerk do
the particular thing he is told to do. There is no other form of relationship of superiority and inferiority between the two
men except this short-lived coercive one. The gunman does not issue to the bank clerk ‘standing orders’ to be followed
time after time by classes of persons. Yet laws pre-eminently have this ‘standing’ or persistent characteristic and it is this
very characteristic that we must endeavor to reproduce inthe given gunman model.

General Habit of obedience: The question how many people must obey how many such general orders, and for how long,
if there is to be law, no more admits a definitive answer than the question how few hairs must a man have to be bald. Mere
temporary ascendancy of one person over another is naturally thought of as the polar opposite of law, with its relatively
enduring and settled character. It remains to be seen whether this simple, though admittedly vague, notion of general
habitual obedience to general orders backed by threats is really enough to reproduce the settled character and continuity
that legal systems posses. Moreover, he accepts that penal statues bear close resemblance to OBT’s but what about other
laws, such as those governing contracts, wills etc (power conferring)? How are they to fit into the OBT model?

The law has features of supremacy and independence within its territory that cannot be reproduced in this simple model.
The body is subordinate to the Head of the State and thus, may be described as an agent of the Governmen. The
Government is also independent as it is arguably not in the habit of obedience to the government of any other state.

CONCLUSION: the sovereign, or the body issuing general orders backed by threats(s), must be INTERNALLY supreme
and EXTERNALLY independent. (Pointing to his external and internal point of view)
Nuruddin, Mardheeya S
2011 34389
MARDHEEYA S NURUDDIN
2011-34389
MARDHEEYA S NURUDDIN
2011-34389