Hart's Rules as Critique of Austin's Command Theory of Law (Essay Sample)

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Hart’s rules as critique of Austin’s command theory of law
Austin’s theory of legal positivism
According to Austin's theory, the law refers to a command that is issued by the commander who is not commanded typically referred to as the sovereign (Donohue, 1). The theory further suggests that for the controls to be useful they ought to be backed by threats of numerous sanctions. The theory terms the sovereign as the one who is always obeyed by others. Austin's great work of Utilitarian approach towards law was influenced by Jeremy Bentham. According to Austin’s theory a combination of commands combined with permissive laws that allow for exceptions to such commands make the legal system.
Hart’s primary and secondary rules
I his analysis, Hart describe laws as rules so as to distinguish them from Austin's theory of legislation and commands. Hart defines primary rules as ones that forbid or require specific actions and have the capacity of generating duties or obligations (Hart, 74). That implies that for a citizen who understands the law well the primary law will force him or her to behave a particular manner bearing in mind the consequences of acting contrary to the law. For instance primary law can be the law that forbids one from walking out of the supermarket with stocked items without paying for them.
On the other hand, secondary rules lay down the procedures for introducing, modifying or enforcing primary rules (Hart, 76). That implies that secondary rules are concerned about other rules. For instance a football coach may be allowed to intervene and challenge the decision made by the referee. However, upon viewing the replay the coach is forced to accept the final decision undertaken by the referee. Hart suggests that a society with only primary rules would be faced with numerous challenges because of the following reasons; first there would be no method for creating rules, second it would be hard to determine whether the rule is broken or not and finally there would be a lot of uncertainty in identifying rules. Secondary rules can further be classified into three; rules of change, rules of recognition and rules of adjudication (Hart, 76-77). The rule of recognition stands out as the most important since it helps in identifying the law. The rule requires a hierarchy where by other rules overrule others like in acts of legislation and written constitution.
Ways in which Hart’s rules act as critique of Austin’s command theory of law
Hart’s introduction of primary and secondary rules provides a framework that helps us to understand the sources of law and hence be in a position to differentiate between valid and invalid laws unlike Austin’s theory which gives no direction concerning the source of law. Austin defines laws as demands issue...