This presentation depicts the criticism of Austin's theory by H L A Hart. Hart's own philosophy developed with his criticism of Austin.

1. B Y H . L . A . H A R T
A criticism of Austin's theory

2. Hart’s theory was developed as a result of his
criticism for Austin’s Command Theory….
Did you know???

3. Internal Point of View

4. According to Hart, Austin’s theory explains law only
from the outside. It only looks at external factors, that is,
the behavior. The theory makes no reference to internal
factors, that is, individual’s attitudes and beliefs.
Hart said that it was wrong to define concepts like
obligation and authority only in terms of external
conduct.
Law is a social phenomenon and that is why we need to
understand the internal perspective of those who
participate in legal institutions. The meaning and
significance that such people attach to their own
behavior must be considered.
“Internal Point of View”

5. EXTERNAL INTERNAL
Behavior Critical Reflective
Attitude: Because rules
are standards of
behavior, their
deviance merits
criticism as a reaction.
Two Aspects of Rules

6. Habits Rules
It is merely a an
external phenomenon.
There is no internal
point of view which
can justify such
behavior. It is just
common behavior.
It has both internal
and external aspects.
There is a critical
reflective attitude to
certain patterns of
behavior as a common
standard. It is a
standard by which
people judge
deviations.
“Distinction between habits and rules”

7. Habitual Obedience
Austin had said that sovereign is habitually obeyed by
the population.
Hart argued that if people had obeyed the law out of
habit, then deviance must not have invited critical
attitude.
Hart also argues that Austin’s idea of habitual
obedience fails to explain continuity of laws. He says
that continuity of law occurs due to the concept of rules
and not due to habitual obedience. This criticism may be
understood by the following two instances…

8. 1. Why is the law made by a new
sovereign when the old one has
died already a law even before he
has received habitual obedience?
(people have not yet developed
the habit of obeying the new
sovereign)
2. How can a law made by
an earlier legislator,
long dead, still be law
for a society that cannot
be said to habitually
obey him?

9. “Having Obligation”
vs.
“Being Obliged”

10. Being Obliged
It connotes feeling obliged.
A person is obliged to do something where doing
that thing is a necessary condition for avoiding
some threatened evil.
Example: the Gunman Situation
Feeling of psychological compulsion, involves
coercion
It is not internal or normative.
Legal obligation

11. Having Obligation
An obligation is always internal.
The notion of an obligation is normative.
Example: The tenant had an obligation to pay rent
but felt no pressure to pay when he manage off
without doing so.
Joey owes so much money to Chandler but Chandler
never insists on it being returned.
There may not be a fear from disobedience.
Moral obligation

12. Having Obligation v. Being Obliged
 Hart says that the command theory may have given
a correct account of what is it to be obliged but not
of what is it to have an obligation.
 Commands backed by sanctions may oblige us to
act but this is not necessarily a sufficient condition
for having an obligation to act.
 A person is not released from an obligation just
because he knows he wouldn’t be punished.

13. N O T E : T H I S I S J U S T A N E X A M P L E T O S U P P O R T H I S
O T H E R C R I T I C I S M . I T I S N O T A C R I T I C I S M I N I T S E L F .
The Gunman Situation

14. The Gunman Situation
The example is of a bank robbery.
When a gunman enters a bank, points a gun and
issues command to give him the money, then he will
probably get what he wants: if not, he will shoot.
Hart says that there is a lot of difference between law
and the coercive factors involved in the situation
mentioned above.

15. The Gunman Situation
 Hart compares Austin’s theory to the role of a
gunman in a bank and tries to establish the
differences between the gunman’s orders and those
made by law.
 The gunman forces us to obey them but we may not
feel inclined to obey them.
 The person in bank does not have an obligation
although he is obliged to hand over the money.