In what ways if any is Hart's theory an advance on the positivism of Austin and Kelsen? Positivism as opposed to natural law is the legal theory which aims to state law as it actually is, as opposed to what it ought to be accordingly excluding moral considerations, Austin, Kelsen and Hart belong to this school of thought but each of their theories brings to bear different versions, so to speak of positivism.
To talk of a progression in theories is difficult because there are some inherent differences in the aims and methods of the theorists, because the very nature of their projects mean that certain conclusions and limitations are inevitable however In this essay I propose to argue that the significant advance in Hart's theory is that it is a move away from an imperative view of law, that being not the only, but the significant deficiency of Austin and Kelsens theory.
I choose not to focus on the internal criticisms of the theories unless they are directly related to the imperative nature of the theory, which is not to say that they are not important only that I am attempting to confine how I analyse the advancement. Austin as an empiricist sought to state a theory of law which derived from his observation of the reality of the modern state as it was then, the fact that it would have limitations is thus inevitable. In summation Austin's theory was: Law is a species of command , sanctions are consequential for their non-compliance.
Only a Sovereign political superior body is able to inflict the sanction , they are distinguished by the fact that a bulk of the populace are in a habit of obedience to it and the fact that this sovereign body is in a habit of obedience to no one and their powers are consequently legally illimitable. Law is only positive in so far as it is set down by political superiors , law must be distinguished from positive morality which whilst similarly being laid down by others it's non -compliance does not result in sanction.
This concept of positive morality also engulfs laws by analogy, which are rules set by an indeterminate body of people like the public. Positive morality is important because it distinguishes law from other social phenomena like moral and social custom. From this theory follows therefore certain implications. The state is no more than the body of individuals or individual which is sovereign, the state is an entity above the law, law is merely subject to it and law is only valid because it comes from the sovereign, the state the sovereign cannot be bound except by the constraints of positivism.
Austin's theory is not about the rule of law it is about the rule of man, how they in fact utilise their power, law for Austin is the mere instrument of power/Government. Thus Austin's positivism provides us with an explanation of power relations in the legal system he knew it, it is thus a child of it's time. This was the era of the 1832 Reform Act where only limited suffrage was extended to but a minority of the middleclass. The policy consequently was one of deference to an elite government. Government was for Austin sound management guided by the principles of utility, which was a matter for experts.
Austin anticipated more than mere threats backed by sanctions he wanted universal education so that the populace would recognise the expediency of a Government and know the principles that guided its rational exercise of power but he simultaneously recognised that Government do in fact rely on irrational habitual compliance by the populace. Austin elaborating a rule of men and not law is unconcerned with the issues of restraint on arbitrary power, concerns that are important in the modern world, where it was seen that positive morality was not enough to hold Hitler or other totalitarians.
Several criticisms have been levelled at Austin notably by Hart on the illimitability of the sovereign, sovereign succession, the continuity of valid law, the location of the sovereign in the modern state, the negation of international law to positive morality. I chose not to deal with these criticisms as I feel that if Austin's theory is analysed in its fullest sense which Cottrell does in fact do, then to a certain extent those criticisms do become void.
There is in fact one criticism by Hart that I am concerned with because it highlights the deficiencies of the imperative nature of Austin's theory. Hart believed it was implausible to attach a sanction to power-conferring rules, because they are facilitative rather than duty-imposing. Even if it is accepted that the smallest inconvenience can be a sanction because the 'smallest chance' of the 'smallest evil' warrants an extensive range of sanctions, a problem still remains. If all laws are sanction based ho w is it then possible to distinguish between the congestion charge and a parking fine?
Austin's theory does not allow for the explication of the different types of law that exist and their corresponding social utility. In failing to do so it ignores the social domain of law and thus largely it's function. Austin's positivism also fails significantly because it offers only compulsion due to fear as a reason for obeying the law which is an overly simplistic way of viewing the effect of sanctions The sanction theory is not wrong in terms of ordering behaviour around sanction consequences as a practical tool that can work… but only to a point.
Faced with the threat of a sanction there are two available options 1) comply with the demand and therefore avoid the threat, or merely 2) avoid the threat. Austin's theory presupposes that option no. 1) will always apply, why? It may be a realistic alternative to not obey the demand but still avoid the sanction, if no more than fear is your compulsion then what else will make you obey the command. Consequently sanctions will not definitely induce conformity rather it is better to order peoples behaviour around something which they can adhere to.
Austin provided a bare minimum of what is actually needed for a legal system to work, one ultimate authorising body and the ability to achieve compliance but more is needed, can Kelsen fill the gaps or will it be left to Hart to amend his deficiencies?……… Kelsen is an altogether different proposition from Austin because his project is conceptual. His pure theory of law is not concerned with reflecting the reality of actual legal systems only in constructing concepts which allow us to interpret what the law is, but their theories are obviously similar in their imperative nature.
When the administrative organ within a legal system applies general norms to a particular case, the individual norm created constitutes the 'law'. Law for Kelsen is an order of human behaviour; he says that it designates a specific technique of social organisation. This technique is essentially one of coercion, by the systematic use of sanctions, applied by officials authorised by the legal order. Kelsen develops the concept of law as essentially the idea of sanctions and officials. Thus a legal norm becomes an ought proposition directed at the officials to apply a sanction in certain circumstances.
Consequently citizens for Kelsen cannot break the law they can only commit delicts, which is fulfilling the condition for the application of a sanction by an official, so law is just a set of norms that take the form of directions to officials to apply sanctions. Legal norms are those for Kelsen which prescribe sanctions. For Kelsen validity comes not from a Sovereign body but from the fact that another legal norm of a higher rank has authorised it although there needs to be a minimum of effectiveness.
Minimum effectiveness has been achieved if there is a sufficient standard of adherence to the Grundnorm. The Grundnorm is the ultimate source for the validity of all the other norms belonging to the same legal order. Thus the Grundnorm replaces the Sovereign which can be seen as advancement because we are no longer concerned with deriving validity from individuals. For Kelsen because the rule of law is integral, the state is not a body which has elevated status above the individuals which make use of it for Kelsen the state is no more the totality of a norm with in a hierarchy.
The state is subject to the law and not the other way around as Austin would have it because of the Rule of law. Thus where the possibility of autocratic domination lurked with Austin's illimitable Sovereign there is no possibility for this with Kelsen, Kelsen therefore addresses modern concerns. The Grundnorm is Kelsen's theoretical construct, made for the purpose of portraying the unity of the legal system, the fact that all norms trace their validity back to just one source and must do if they are to be considered part of the legal system.
Legal norms derive their validity from other legal norms this process of attributing validity must come to an end at some point the Grundnorm is that point. Many criticisms have been levelled at Kelsen stemming from the implausibility of the Grundnorm , the implications of his theory on international law, and his negation of justice in his theory and it's too narrowly defined scope of material, although some would say that was the point . I am however concerned with one related criticism.