Analysis of Austin and Hart’s Positions on Why People Obey the Law

All of the world’s legal frameworks define, distinguish, uphold, and acknowledge duties. Social law cannot exist without obligations, which must be clearly stated in order for people to recognize the legitimacy of the law. Over time, both volunteers and non-volunteers have studied the legislation and evaluated it from various angles. As two instances of voluntarists who studied positive law, consider John Austin and HLA Hart. John Austin and Jeremy Bentham were the first to study the positive view of law, but it subsequently struggled to be relevant at the start of the 20th century. HLA Hart further redeveloped the positive law concepts after the Second World War. Legal positivism as a belief holds that public law should be treated separately to social factors as religion as well as morals in a bid to give the law a more general and extensive application. Thus, the paper shall analyze Austin`s and Hart’s ideas on why people confine themselves to laws and what it takes for citizens and residents of a country to abide by the law. Therefore, through the use of concepts such as positivism, natural law, and formalism, the paper will critically examine Austin`s and Hart’s suggestion in a bid to understand what it takes for a law to be valid and implementable in the society.

Natural Law

Natural law theorists such as Austin and Hart believe that societal laws should assist members of the community to achieve their purpose. This led to the widespread belief that rules concerning the order in the society should be similar and consistent despite time being a massive factor. Austin argues that natural law should be held in higher regards than the man-made law as he described the man-made law as inferior. Therefore, Austin`s perspective was that man-made laws that appear to conflict with natural laws should be considered invalid. A popular argument that gained prominence in Austin`s studies is that values are consistent and eternal which implies that people can learn from values. What is more, Austin believed that humans have an inner potential to lead moral lives which should be exploited by societal laws. As can be seen, Austin`s arguments are inspired by human qualities which he believes aspire humans to co-exist harmoniously. The ideology holds that people can only confine themselves to social laws and obligations if the laws go hand in hand with natural laws. This leads to the ideology that man cannot fully observe the social law that is contradictory to natural law.

Hart conducted several studies on natural laws with the aim of expanding his knowledge base on the application of natural laws to societal laws. Therefore, he aimed to propose relevant suggestions to improve Austin`s argument on natural law and as a result, led to his conclusions. Hart agreed to Austin`s remarks that rules must be general in their application and scope. To explain further, the society is likely to have different issues that may arise due to interpersonal interactions as well as personal beliefs. Thus, Hart reiterates that a fully functional societal law should be general and applicable in all situations. Further, Hart argues that for laws to be observed, they must be made public, such that all citizens are aware of all the legal requirements. Failure to making a law public compromised its legitimacy and increased the chances of failed observance of the laws. Hart was insistent on the need for rules to be prospective at all times; that is, laws should be structured in such a way that they allow people to make personal choices on whether they will conform or disregard the rules. Retrospective action should be undertaken in the instance members of the community fail to abide by the laws. In natural law, the theorists believe that all laws should be clear. As both Austin and Hart reiterate, the clarity of societal laws determines their observation by the public. Laws that are unclear are more likely to be disregarded or unrecognized by citizens.

Furthermore, all laws should be precise, clear, and must not be contradictory by any means. Indeed, when laws are complex and impractical, citizens tend to get confused since the understanding of law differs within individuals. This highlights the importance of having properly structured laws that are easy to comprehend and implement at the societal level. Hart’s research on Austin`s suggestions on natural law led to his agreement to the notion that law should be practical and constant for it to achieve the desired outcomes. Laws that tend to disregard human autonomy or morality are likely to lead to discrepancies, more so in observation of the laws since the imposed law will contradict the moral law. Moreover, having an inconsistent legal structure, such that laws change inconsistently over time, might affect the stability of expectations and lead to the confusion of citizens. Another vital point addressed by naturalist theorists is the need for reciprocity between citizens and the government. To explain further, laws are held in high regards by the public when the government officials heed to the laws and professionally conduct themselves. This promotes harmony within the society since both officials and citizens are on the same page in regards to the observation of law.

Positivism

Austin describes positivism as the law decreed by a relevant authority. In his assessment, Austin concluded that there need not be any connection between morality and law as he rejected the concept of a higher law. Natural law lost its prominence in the late 18th century as liberalism shifted the populations thinking. Therefore, the positivist thought failed to recognize value inspired approaches. Austin advocated for the command theory as he attempted to distinguish law from principle, rules, and commands that members of the society adhere. Thus, Austin`s argument in regards to positivism is that law should not be influenced by moral observations. He asserts that a valid form of law is that implemented by national or institutional leaders.

However, Hart found numerous loopholes in Austin`s perception of law as he believed that law is not a command to be backed by threats. Furthermore, Hart reiterated that some laws attempt to empower citizen to realize their respective wishes legally; thus, deeming transactions as null is not enough for sanctions. Hart believed that laws must not always emerge from sanctions, but instead, can arise from customs. According to Hart, people observe laws since they perceive them as rules. He further reiterates that people accept the need to act in observation to rules which enhances the acceptance of the general law. Hart describes laws as rules which form a conventional regulatory structure and adds that laws comprise of two main forms of rules, the primary and secondary rules. Primary rules impose duties to different people and entities in society. According to Harts findings on his studies in positivity, primary rules must be unified and supported with secondary rules to facilitate the smooth implementation of law. The secondary rules, according to Hart, make it easier for people to observe laws as they empower citizens to alter or introduce new primary rules. There are three types of secondary rules which are rules of change, adjudication, and recognition. The rules of recognition enable people to understand what constitutes a legal rule. Thus, the rules of recognition play a significant role in allowing citizens to determine which primary rules are superior to the others which enhance observation of law by the community. On the other hand, the rules of change make it easier to alter or abolish rules without compromising on consistency. Thus, it provides an avenue for the altering of laws in an amicable manner. The last rule is the rules of adjudication which facilitate the enforcement of punishments and remedies as well as dispute resolutions.

Open Texture of Law

Hart highlights that it is impossible for law creators to predict future scenarios that require law application. As a result of this, it is impossible to establish general laws that tackle all potential issues. The open texture of law allows judges to use discretion and logically assess facts to arrive at relevant conclusions since rules are utilized as justification and reason for decisions. However, Hart adds that judges do not have complete discretion and are expected to draw on appropriate extra-legal political and moral considerations. In an open texture of law, the reasoning of judges must be based on morality, social policy, and justice. Hart’s perception of law holds that judiciary is tasked with the role of creating both secondary and primary rules.

Formalism

Formalism holds that appropriate law should be applied to relevant facts of a specific case to establish the correct course of action. Thus, legal reasoning in formalism is regarded to as a scientific process involving logical thought. Judges are perceived as an essential arm of creating and sustaining laws in formalism. Judges are expected to apply the law to facts of a case in a rational manner without looking beyond the national laws to make informed decisions. Therefore, this highlights the importance of judges in maintaining the rule of law. According to Austin`s and Hart`s analyses, formalism ensures that everyone is considered and treated equally at all times. Formalism is a strategy that helps maintain law by addressing appropriate causes of action in the case uncertainties or differences occur. However, formalism as a concept has its weaknesses as it not only assumes all rules are clear but also that all laws will fit future situations that arise.

Analysis of Austin`s and Hart Views on Abidance by the Law

Although Austin and Hart have similar concepts regarding law observation, some of their perceptions differ. Austin was a firm believer of command in law whereby members of the community are restricted and required to confine themselves to the laws of the land. However, he added that for a law to be practical it had to observe the natural law and seek to improve a man. Austin concluded that members of the public are likely to observe laws in a formal structure that supports order right from the administration. As can be seen, Austin believed that judges had a massive role to play in maintaining law and order, especially in instances where people perceive laws differently.

Hart highlights that law should not change too much. Changing laws creates uncertainty, more so to the members of the public who might fail to understand what is required of them in the event of unprecedented changes in various laws and regulations. Further, Hart added that officials also play a role in determining how members of the public respond to laws. All officials must act in relation to stipulated laws since citizens are more likely to disregard the law when leaders appear to disrespect the set laws. Hart concludes that law must be approved and implemented in a harmonious manner, such that everyone from the senior leaders to the common citizen is fully aware of the requirements of law.

Both researchers agree that law should be clear, concise, and well communicated. Laws that are not well communicated cannot be observed as it limits the interpretation of citizens. Consequently, people will disregard the laws, not due to ignorance but a lack of awareness. Moreover, laws should be concise and easy to understand. The understanding of legal requirements differs at an individual level which implies that they should have a direct structure that allows for straightforward interpretation by citizens and judges. Clear laws that are easy to comprehend tend to influence the actions of citizens as they understand the need of observance and the various consequences that arise due to disregarding the laws.

Conclusion

In conclusion, Austin and Hart provide essential concepts that influence the observation of laws by citizens. What is more, the various factors that affect the positive perception of laws are provided under the natural laws concept, which both authors term as relevant in the continuous process of making laws. Among the conclusions drawn from the critical analysis is the need for clear laws that are easy to understand and implement. Also, laws must align themselves to natural laws that determine personal behavior. Although morality and religious aspects are rejected in both Austin`s and Hart`s ideologies, they both agree that natural laws should form the basis of national and institutional laws.

Bibliography

Austin, John, and Robert Campbell. Lectures On Jurisprudence, Or, The Philosophy Of Positive Law. London: J. Murray, 1875.

Hart, H. L. A. The Concept Of Law. London: Oxford University Press, 2012.

Postema, Gerald J. “Legal Positivism: Early Foundations”. SSRN Electronic Journal (2011).