LEGAL THEORY

Austin, Hart & the Hart-Fuller debate

Date: 21/08/13

Tutorial #1

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Melbourne University Law Students’ Society 1

Austin
Form of law:
• Laws are commands. A command is a wish, coupled with a sanction that is
imposed if that wish is not complied with. The command and threat of
punishment gives rise to a duty to obey.

What sort of commands:

• General commands – issued to society at large (cf. to individuals)
• Commands given by "the Sovereign”
o The sovereign is not habitually obedient to anyone else, but everyone
in society is in the habit of obedience to the sovereign.

Objections:
• What about the normative force of rules? (Hart & the ‘germ of justice’)
• Why only general commands? (what about a judge ordering restitution?)
• Is all law really ‘wish backed by sanction’? (contract law (empowering laws)
• Who is the sovereign and are they under law? (all of society? Parliament?)
*NOTE: a major inconsistency with Austin is that in identifying the sovereign
he did not himself apply the test of habitual obedience, but instead looked to
constitutional norms – this perhaps demonstrates the difficulty in the inquiry.

Hart
Law consists of:
• Primary rules: rules that actually tell us what to do; &
• Secondary rules of –
o Change: govern how primary rules change (i.e. precedent);
o Adjudication: i.e. rules of court
o Recognition: “the rule of recognition exists only in a complex, but
normally concordant, practice of the courts, officials, and private
persons in identifying the law by reference to certain criteria. Its
existence is a matter of fact.” (Concept of Law 110)

There are both rules & habits. Habits are merely the convergence of behaviour in a
social group. However, operating in accordance with rules requires more. You need
to know and understand certain social facts (rule of recognition) to say people are
behaving in accordance with rules (and not just a habit).

Hart vs Fuller Debate

Hart:
• There is no necessary connection b/w
law & morality (other than the germ of
justice that arises from rules applying
equally to all). Nazi law was valid if it
satisfied the rule of recognition
Fuller:
• Natural law usually argued an
immoral law cannot be a law
• Fuller argued the law must live up to
minimum formal standards inherent in
the principle of rule of law/legality
• The Nazi regime was not valid, it was
a tool for tyranny & oppresion

Melbourne University Law Students’ Society 2