Episode 5: Hart’s Critique of Austin II

(upbeat music) - Hi everyone, this is Scott Shapiro and this is episode five of the Jurisprudence course podcast. I read somewhere on the internet that it's April. I don't know if that's true, but that's what I read. Just a quick little story. I was walking up 9th Avenue actually and at seven o'clock at night, everyone in New York starts cheering and there were a lot of high rises and people came out onto their balcony and they started cheering and banging on pots and was really moving for the healthcare workers who've put their lives on the line to help everyone who's gotten sick from coronavirus and then an ambulance drove, slowly up the street and the driver smiled and waved. It was very, very moving. So anyway, let's start with talking, continuing our conversation about Austin's theory of law and Hart's critique. So just, let me just rehearse again what Austin's theory of law is that law is the general commands backed by threats to sanctions issued by somebody who is habitually obeyed and habitually obeys no one else. So law equals rules plus sovereignty. And we discussed the first part of Hart's critique of Austin. Austin seems, he directly says that all laws are general commands, commands are always impose obligations or in Hart's language, impose duties. And what Hart argued was that that ignores the other class of rules that the law has, which he calls power conferring rules, not just duty imposing rules. So it's not just that the law is there to stop you to discourage you from acting on wishes that the law just wants you to act on, but also gives you amenities, gives you the ability, confers the power to enable us to realize our wishes. So that's what we talked about in episode four. What I'd like to do is continue Hart's critique by investigating whether, even with respect to the duty imposing rules, like the rules of the criminal law and the rules of tort law, whether Austin's theory is the correct theory. So is it true that with respect to the duty imposing rules that they really are general commands, which are expressions backed by threats of sanctions? Now, one criticism you might make of Austin's theory of obligation is to point out that people obey the law not just because they don't wanna go to jail or to be fined or the shame associated with law enforcement, but rather because they think that they are morally obligated to do so. And in fact, my colleague, Tom Tyler, has argued throughout his career that in general, people obey the law normally because they feel that they're morally obligated to do so not in order to avoid sanctions. Now, it's important to see that this itself is not a good criticism of Austin's theory 'cause what Austin could say is sure, of course, people obey the law for many different reasons. Some of them may think that they're morally obligated, they may be morally obligated to obey the law, but what makes the law the law is that it is general commands backed by threats of sanctions, it doesn't matter. So even though that objection about the good citizen that people respond to the law because they think that they're morally obligated to obey it is itself not a good argument against Austin. I think that there is a criticism that's in the neighborhood, as they say, of that objection, which I think is a good objection. So let me make it. When we say that the good citizen responds to the law because it's the law, what we mean by that is not simply that they think that the law has a content that is morally good. So let me give an example, take laws against murder. The good citizen doesn't wanna murder people because they don't wanna take life without justification. So the fact that the law tells them not to murder doesn't really add much to the good citizen's motivation. However, there are lots of laws that the good citizen responds to, but not because their content is morally good, but rather simply because the law requires them to do it. So you may think, oh, well, whether I should pay my taxes at a certain rate or on certain types of income. Well, I think that's morally suspect, but the fact that the law requires me to do this, to do that is a reason to do it. So I'm responding, if I'm a good citizen, not simply to the content of the law, but rather to the fact that the law required it. So as technically legal philosophers would say, my reason to obey the law is not content dependent, but rather content independent. It's not what the law required me to do, but rather it's that the law required me to do it. So when I'm the good citizen, I'm responding to the fact that the law requires it, that I'm legally obligated to obey its dictates. Now, take somebody who is a good citizen and responds to the law because it's the law, because they're legally obligated to do what the law tells them. Can Austin's theory of duty imposing rules make sense of that? No, not really, because for Austin, the duty imposing nature of the law is the fact that it's threatening an evil, but the good citizen, when they do something because the law required them to do it, is not doing it because of the evil that's being threatened against them, but rather because the law demands it of them and they think that they're more legally obligated to do what the law demands of them. So Austin's theory of duty imposition can't make sense of the good citizen who, when they respond to the law because they're obligated to obey, is not responding to the sanction, but rather the opposite, is responding irrespective of the sanction, is responding simply because the law required them to do it. So I think that Austin's, not only does Austin get the, nature of the law wrong by thinking that all laws are duty imposing, but he actually gets the duty imposing nature of the law wrong by emphasizing sanctions because then he's not able to account for the good citizen who's responding to the law because the law required it. Okay, let me move on to Austin's theory of command. So I said that all laws are general commands. And so let's ask whether that's true. Are laws commands? Well, there are definitely certain legal obligations which are imposed by command. So a police officer can tell you to stop at the green light because an ambulance is coming through or something like that. And that's an imperative an obligation which has been imposed by command. Or if the judge tells you to approach the bench, that's also another legal obligation which is imposed by command. But most laws are not imposed imperitively. They're not imposed by command. I mean, it's not like Congress and the president get together on television and order the American people to act in a certain way. No, they sign bills and that's what creates the law. I mean, that is the legislators vote on these bills and the president signs the bill and they're not commanding us in any kind of regular sense of command. They're creating law, but they're not doing it through command. One way to get at this is there's something that Hans Kelsen pointed out is that in order to command something, you have to know what you're commanding. I think it makes sense for me to command somebody to do something. I have no idea of what I commanded them to do. But legislation is often created by legislators who don't know what's happening. I mean, the modern legislations could be thousands of pages long and no legislator knows what the content of that entire bill is. But nonetheless, when they vote on it and the president signs it, it becomes law. So it seems as though law in any legal system that we recognize as being a legal system is not created through command, but rather in this kind of impersonal, we might call kind of bureaucratic way. And that's something that a theory of law has to grapple with, the fact that the law is created by people who may have absolutely no idea what law they're creating. In fact, actually, you can create law that requires somebody to do X, even though the legislators think it requires them to do not X. And they could just be mistaken about the law that they created. Here, another reason to think that law is not created imperitibly is that commands are generally bilateral. I command you to do something, but it didn't really make much sense to say I commanded myself, except in a metaphorical sense, to act in a certain way. But typically laws can and do apply to legislators themselves, right? So if they vote on a tax law, which taxes income in a certain rate, it will apply to them as well. And there's nothing mysterious about that, but if laws were commands, there would be something very mysterious about that. Okay, so it seems as if Austin is wrong also that law is general commands. It seems as if actually laws are not commands, generally, but are created in this impersonal reflexive way that as they apply also to the people who made them. Finally, and there's a point that Hart made and Kelsen made it too. This imperative theory of the law that the law is general commands can't explain the existence of customary law. So the law often has rules which are created through custom. So it's generally understood that the rule of stare decisis, the rule that courts are to look to precedent, is customary, but nonetheless binding. Certain types of business customs can be legally binding and contract law, for example. There are many instances of custom being legally binding, but custom is not command. I mean, it's the opposite of command. And so Austin's theory can't accommodate this. Now Austin recognized that this was a problem. And the argument that he made to accommodate custom was to say that custom is not law until courts apply it. When courts apply it, they are, let me back up for a second. When courts apply the law and the sovereign doesn't contradict them, doesn't counterman them, then the sovereign has tacitly commanded people to act according to the custom. So the idea here is that when courts apply custom, they're not applying it because it's law. It becomes law when the sovereign accepts it and doesn't counterman it. And this is a tacit command. Now, I always tell my students that anytime a philosopher has to invoke the notion of a tacit anything, it's always a loser. Like I don't think in the history of philosophy there's ever been a doctrine where the philosopher has said, yes, it's not an X, it's a tacit X and they've been right. So when a Locke's theory of consent said, well, citizens don't explicitly consent to the law. Well, yes, but by living in a country, they're tacitly accepting the law. If you got a resort to the notion of tacitness, that's a loser, you're always gonna lose that argument. And here's a perfect example. As Hart pointed out, it's not that commands are, I'm sorry, it's not as though courts are applying custom with the hope that they are, that the sovereign will let them do it. No, they're applying custom because it's custom and custom is law. One way of seeing this as he points out is that, I mean, courts don't apply repealed law and hope that sovereigns just accept and tacitly allow them to do it. No, they just don't apply repealed law because it's not law. They apply non-repealed law because it's the law. Same thing with custom. The reason why courts apply custom is because it's the law, not because of some cockamamie theory of task command. Okay, anyway, that completes our criticism of Austin and take a break and we'll move on to part two right after this interlude. (upbeat music) (upbeat music) - Okay, hi everyone, part two. We're gonna talk about Austin's theory of sovereignty about how everyone wants to rule the world. But before that, I wanna respond to a question that was raised on Twitter. I'm a big gift skeptic. So sometimes when people will post a joke and then they'll put a stupid gift afterwards, like, I don't know, some scene from "Dumb and Dumber" or some guy slipping on the floor or banana peel. I don't know, I just, I hate gifts. And by the way, it's gift, not gif. Gif is a shitty peanut butter. Gif is a graphic, a graphical interchange format. So guh, graphics, gif. Now, here's why I'm a skeptic about it. I think either your tweet is funny in which case it doesn't need a gif or it's not funny in which case your gif doesn't make it funny. So I feel like it doesn't do any work. It's a crutch. And that's my skepticism about gifs. Okay, now let's talk about Austin's theory of sovereignty. So I had said in the last episode that for Austin, law is equal to rules plus sovereignty. And so we've been talking about Austin's theory of rules. And we pointed out that, you know, he leaves out power conferring rules, his theory of duty doesn't work, rules aren't commands and they can't accommodate custom. I wanna talk about his theory of sovereignty. So on Austin's theory of sovereignty, as we said, the sovereign is somebody who is habitually obeyed and habitually obeys no one else. It's a rejection of what we had called the egg principle that every, that legal authority has to depend on some preexisting rule. And so Austin's theory denies that. He thinks that actually sovereignty depends on habits. Habits are just behavioral regularities. They're not normative entities. And this is a way of solving the chicken egg problem. And I wanna talk in this part about Hart's critique of Austin's theory of sovereignty, 'cause it's actually very important in trying to develop when Hart develops his own theory of law to show why his theory doesn't fall prey to the objections that he leveled against Austin's theory. So first, the Hart points out that sovereignty, legal sovereignty possesses a property that habits can't explain. And the first property that he points to is what he calls the continuity of sovereignty. The idea that when one sovereign leaves and a new sovereign takes their place, that there's no interruption of sovereignty. So he gives the example of Rex, who has a son and appoints him as the successor. And when Rex, let's say, dies, and Rex and the son becomes the next sovereign in accordance with the succession, the son goes from Rex Jr. to Rex II. And what Hart points out is this is very unremarkable, that there's no break in legal continuity between Rex and Rex II. Rex II just becomes a sovereign when Rex dies in accordance with the rules of succession or in accordance with the act of picking the successor. But this is something remarkably that Austin's theory can't explain. Why? Because Rex II would be the sovereign according to Austin, only if there was a habit of obedience. But habits take a while to form. You can't just have a habit right out of the box, you have to have repeated behavior. So on Austin's theory, Rex II doesn't become Rex II until there's a pattern of obedience to Rex II. And then Rex II becomes Rex II, but that's ridiculous because Rex II is Rex II as soon as he assumes his office. And so this idea of the continuity of legal authority cannot be explained by habit because habits take time to build up. You know, there's this old expression, the king is dead, long live the king. So the idea is that there's just a continuity, there's no interregnum, there's no break between Rex and Rex II, that Rex leaves the office of sovereign and Rex II enters it, then there's no break. But this is something that habits can't explain. So that's the first thing that Hart points out that Austin's theory of sovereign sovereignty can't explain. The second one is the notion of the persistence of law. So the idea here is that once a law is made, it sticks around until it's unmade. We could say that law has an inertia, okay? So I don't know when the rules that were created, that regulate, I don't know, let me pick something, the quarantining of smallpox. I don't know, maybe there are rules having to do with the quarantining of smallpox patients. And that was created, I don't know, by some Congress in the, let's say the 1910s, I'm just making this up. The point is that until some later Congress repeals it, or unless there's a sunsetting provision on that legislation, it'll still be the law. So law persists even when the maker is no longer there. But that makes no sense under Austin's theory because all laws are threats. And when the threatener is gone, the threat goes. So it doesn't make sense to say that I'm still subject to a threat from somebody who's dead, right? I mean, somebody threatens me, and then they die, they go away, they retire, or they move to Australia. It's not like the threat exists anymore, but laws which are created by previous lawmakers still have an inertia. And this is something that Austin's theory of sovereignty and its theory of threats can't explain. So Austin's theory can't explain the continuity of legal authority, can't explain the persistence of law. Finally, it can't explain the limitability of sovereignty. So there are some legal systems that recognize the unlimited nature of sovereignty, but other systems think that the sovereign is limited. But it doesn't make sense on Austin's theory for the sovereign to be limited. It can't be limited by law because the whole idea of Austin's theory is that the sovereign is habitually obeyed and habitually obeys no one else. So if they're limited, they'd have to be limited by somebody and that limitation would be expressed through some type of habitual obedience to that person that is limiting them, but then that person would be the sovereign, not the person who's limited. So the very idea of constitutionalism, the idea that sovereignty can be limited, seems very hard to explain under Austin's theory. I always think about it as that like Austin thinks of the sovereign like Stephen Segal above the law. But one of the things that we think is characteristic of modern legal systems, not all legal systems, but many of them is that the sovereign is limited, is limited by the constitution or something like that. In fact, in certain systems, you can't even change the constitution even if you wanted to. So like the equal representation of states and the Senate can't be changed in the United States. And this is something that is extremely hard to explain under Austin's theory. So basically Austin's theory can explain the continuity of legal authority, the persistence of law and the limitability of sovereignty. Let me just end this really long critique of Austin by talking about the hats theory. One of the things that I've kind of skirted up until now is who is the sovereign according to Austin? Interestingly enough, it's not a person for Austin. So it's actually some weird combination of institutions and individuals. So at least in the United Kingdom, Austin thought that the king and parliament or the queen and parliament as the case may be, they're the sovereign. In the United States, it was the people. They're the sovereign. And so it's not like a person. It's rather this indeterminate quantity of people, indeterminate group of the people of the United States or the king and parliament as the sovereign. Now, let's just take the idea of popular sovereignty, the idea that in the United States that the people are sovereign. How does that make sense in Austin's theory? So the sovereign is somebody who is habitually obeyed and habitually obeys no one else. But how do the people obey themselves? That doesn't make any sense. How can you obey yourself? - Well, Austin says, well, they obeyed themselves in the following sense. They've commanded themselves wearing, I call this the hats theory. They're like two hats, right? You can wear your sovereign hat. That's when you're come, that's the people are when they're commanding through acts of sovereignty, they're wearing their sovereignty hat. And when they are obeying the law, they're wearing their subject hat. So they're the same people, but they're wearing different hats. Now, I don't even know what the fuck, I don't even know what that means, but the point that Austin points out is that once you start having to resort to different hats that the people wearing their subject hat are obeying themselves wearing their sovereignty hat, like once you start having to go down the route of hats, then you've already kind of exited the notion that sovereignty really depends on habits, which you've really introduced this idea that sovereignty really depends on rules. And so you really kind of smuggled in the egg principle here that really you need these rules operating in the background to distinguish between when the people are acting in their sovereign capacity as opposed to acting in their subject capacity. And in fact, what you have in this case is power conferring rules. And so what we're gonna do in part three is we're gonna pick up on this idea that really rules are the ultimate foundation of a legal system. And we'll do that by talking about Hart's positive theory in part three. (upbeat music) (upbeat music) Okay, part three, we're gonna talk about Hart's positive contribution to legal theory. I'm not gonna talk, this part is gonna be short because I'm tired and I want to stop. So, I mean, it's fun and all, but I wanna, I'm not gonna talk that long for this part. Okay, let me talk about the internal point of view. Now, this is one of the most important ideas and Hart's theory of law and it is probably the most misunderstood part of his theory. I mean, I hear internal point of view used all the time. In conversation, discussion, in articles, and it's often used incorrectly. So I wanna talk a bit about that right now and how, and the importance of the internal point of view to understanding Hart's theory of law. Okay, so one of the things that Hart tries to do in chapter five of the concept of law, and if you notice he, the chapter five begins with the subtitle, "A Fresh Start." And what he wants to do is he wants to say that Austin got it wrong by trying to rest all of law on habits, rather what the law rest on are rules and in particular kind of rules, what you call social rules. And Austin was right to think that there is a component to social rules that involve behavior regularities. That is, it is true that social rules are constituted in part by behavior regularities that are common to habits, but they're very different from habits because habits don't have a normative component to it. So let's say you have a habit of saying, um. She say, um a lot. I say, um a lot. I have a habit of doing that. That's not something that you, when you don't say, um, you think to yourself, damn, I should have said, um. It's not like when you say, um, you're thinking that that's a good idea. You just do it. See, I just did it again. Now I'm not gonna be able to not say, um. So there, I have this habit of saying, um, I don't think I should say, um, in fact, I think I shouldn't say, um, and yet I do it anyway. But when you're following a social rule, it's not just the case that you're doing as other members of your group are doing, but you think you should. So that if you don't do it, you feel like you're subject to criticism. So, you know, we're living in a world now of social distancing because the coronavirus, you're supposed to keep six feet of distance between other people. It's not like you, uh, just happen always, uh, to give the other person space when you walk by them. No, you're so, you, you think you're supposed to. Um, they think you're supposed to. And if you kind of get up in their grill, they'll like really get pissed. And they'll be like, dude, what are you doing? You know, social distancing, right? So what, what, what's missing from Austin's understanding of habit as being part of law is this normative component that is this sense that you should act in a certain way, not that you just do act in a certain way. And this is what Hart called the internal point of view, which was a critical reflective attitude that guides conduct and becomes a basis of criticism and evaluation of other people's conduct. So it's not just that you do act a certain way, but that you guide your conduct according to a certain standard and you judge other people's conduct in that way as well. Now, the reason why I said that the internal point of view is often misunderstood is people take the internal point of view to mean what sometimes philosophers call the hermeneutic point of view, that is what the insider is thinking, right? So you say, you know, from the internal point of view, people understand social distancing as a rule. And that's of course true. But the bad man also has an internal point of view in this sense. The bad man thinks that they have no reason to listen to the law and that the only reason that they listen to the law is because of sanctions 'cause they're trying to avoid sanctions. That's also the internal point of view in this hermeneutic sense. You're trying to understand how the natives understand their behavior, but that's not what Hart meant by the internal point of view. For Hart, the internal point of view is not just what the native thinks they're doing, but a particular attitude of the native, namely that they should act a certain way according to a certain standard. So the internal point of view is not just like, if you will, the insider's point of view, but a particular insider's point of view, that is the point of view of somebody who's internalized the norms of their group. And when you take the internal point of view in the sense of internalized point of view, what you're doing is you're taking the group standard as a standard that guides your conduct and as a basis for evaluating somebody else's conduct. Okay, so according to Hart, a social rule exists in a group, just in case there's a behavioral regularity of acting in a certain way, plus the critical reflective attitude characterized by the internal point of view, namely that you don't just act as everyone else does, but you're guided by a standard that you're taking as the way you really ought to act. Yeah, now this may be confusing, but hard thought that the internal point of view was not necessarily the moral point of view, meaning you can take the internal point of view towards a certain standard, but you can take that attitude not because you think it's the morally right thing to do, I mean, you can take that attitude because you think it's the morally right thing to do, but you could take that attitude from the internal point of view because you think that it might, let's say, advance your career, or because you wanna get your paycheck, or because people will look at you funny if you don't. You can accept a behavioral regularity as a standard for any reason whatsoever, but you've taken the internal point of view when you take that practice as a standard, okay? So the internal point of view is a normative attitude, but it's not necessarily the moral attitude. You can accept a standard because you think it's morally appropriate, but you can accept that standard because you're trying to, in the long run, advance your interests. You're not taking the internal point of view if you at every single moment think to yourself, oh, well, will I be punished if I do this or not? So even if you take the internal point of view out of, let's say, a concern for rational self-interest, that's compatible with the internal point of view only if you don't evaluate each instance case by case to see whether you're gonna get, whether it's in your interest to do so or not. So let me give you an example, okay? So Hart gives the example of men taking off their hat in church. So that's not just a habit, but that's a social rule so that if you don't take off your hat in church, people will criticize you for not taking off your hat. Now, you may think it's the right thing to do to take off your hat in church, a morally appropriate thing to do, but you don't have to. You can think, oh, I'm gonna take off my hat in church because I don't want everyone to think that I'm a heathen or something like that. Now, that's the internal point of view as long as you don't, every single time you go into the church, think to yourself, should I take off my hat or not? So you can take the internal point of view according to Hart out of rational self-interest as long as it's a long-term perspective that you're not evaluating each instance case by case according to your own self-interest, okay? And that's very important because Hart really wants to say that people can have any kind of reason for accepting social rules and they're still accepting the social rule as a social rule, right? So you don't have to believe morally speaking in the rule itself as long as you don't evaluate every instance case by case, according to your own self-interest, but you accept the standard as something that should guide your conduct in all instances or at least in many instances that you're not gonna evaluate case by case, okay? So what we'll say is that for Hart, a social rule is a social practice where social practice is a behavioral regularity accepted from the internal point of view. And so we're gonna use that expression a lot. We say a social rule is a social practice and social practice is a behavioral regularity accepted from the internal point of view, meaning that you take the behavioral regularity as a standard of conduct which guides and evaluates conduct. Now this is gonna be extremely important because when we talk about in the next episode, we're gonna talk about the main social rules which constitute legal system according to Hart, the rule of recognition, the rule of change, and the rule of adjudication. And these are all social rules which are social practices accepted from the internal point of view. So it's very important that we understand exactly what a social practice is and what the internal point of view is, which is again, taking the standard as a guide to conduct and a basis for evaluating others. Okay, I am gonna stop there because I am tired. So anyway, I hope you enjoy this. We will pick up next episode on Hart's main theory of law and we're gonna have some fun. Okay, take care, be well, stay safe.