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Mike Rana

Philosophy of Law
First Essay
February 27, 2016

There is the idea of a simple society (Hart, 40): People live in harmony with each other with a
full understanding of the rules by which they live. There is no legislative body in charge of making,
modifying, altering, or abolishing those rules. There is no executive body charged with promulgation of
rules among the society. There is also not a judicial body present that acts as the neutral third-party
when things go awry in the society. This society also has no written doctrine or constitution
enumerating the rules. One could call this society a utopia; self-governing, self-sustaining, and selfadjudicating. (Hart, 1995, 40)
While the described society above seems very ideal and desirable, there are obvious defects in
the way this society conducts itself. H.L.A. Hart, in The Concept of Law, goes into detail about the
defects:
As mentioned above, there is no written account or constitution available to the society that
specifically enumerates the rules that are followed. There isn't an executive body available to
promulgate these laws among the public allowing for common knowledge. The lack of a judicial body to
act as a neutral arbiter is also a cause for concern because any society, whether utopian or not in design,
is bound to have some member of the society run afoul of a law. In the ideal society, there is no
conflict, therefore no need for an arbiter, but as humans, we are infallible.
Given the nature of a society's membership changing over time, and the idea that time does go
forth, rules have to be capable of expansion or adaptation. While it can be argued that divine law never
changes as it comes from God, as times goes forth, people may want to collaborate on the creation of
positive law to supplement or replace divine law.
In the Federalist No. 51, James Madison says, "If angels were to govern men, neither external
nor internal controls on government would be necessary." This gets to what Hart describes as a third
defect: Inefficiency of solving disputes and ascertaining any form of authority. In any given society,
there will be conflict, social deviance, as members come and go from the society. The society also must
face the idea that new ideas may come around that conflict with already existing rules. Even in a perfect
society, you always want to have one authoritative entity whose job it is to settle disputes, regardless of
how trivial, in addition to having some way to recording resolutions to apply them to future disputes.
One of the first forms of lawmaking, Common Law, began in England, under no written constitution.
Their legal system focused mostly on written legal precedent, but without a constitution, it's all they
had.
For Hart, there are two types of rules primary and secondary. Primary rules are either
instituted by God, or by person, and act as the form of social control. In order for members of a society
to function in tandem, they agree to certain rules as way to ensure civility and order. These rules will
often restrict the freedom you are endowed with, but without them, society would likely collapse.
Secondary rules contain the key by which primary rules may be created, modified, or deleted. These

secondary rules address Hart's concern for uncertainty of rules. The most prominent example of
secondary rules that we have mentioned in class is the U.S. Constitution.
Secondary rules are comprised of three types: Rules of recognition, rules of change, and rules of
adjudication. Contemporarily, we can think of this in terms of the separation of powers enumerated in
the U.S. Constitution the executive, legislative, and judicial branch.
Rules of recognition are the vehicle by which rules are understood and affirmed by the society
overall in addition to the officials responsible for promulgating them. Hart mentions that in the earliest
forms of law in many societies were either found in written documents or carved on public monuments.
(Hart, 1995, 42) Regardless of how they are documented, these rules are what officials will use to
enforce the rules, and what members of the society will reference when ensuring that they are not in
violation.
Rules of change enable the modification, creation, or destruction of rules in existence, and
specify who shall be conferred with such power. As a society evolves over time, its membership
changes, and its people take on new ideas and experiences, which can lead to a change in the rules.
Situations within a society may arise that prompt the creation of a new rule. Finally, as times change,
and new rules are passed, it can lead to the destruction of archaic and unnecessary rules.
Rules of adjudication enable an unbiased, neutral party to facilitate the settling of disputes,
diffusion of social norms, and ensure compliance with current primary rules. These rules also allow the
conferring of powers related to such facilitation, diffusion, and efforts of compliance. Even in a utopian
society such as the one in the introduction, conflict can arise, and people can break the rules.
According to Hart, when you combine the idea of primary and secondary rules, you create a
legal system. He establishes two criteria for a valid legal system: (1) Rules must be valid and efficacious,
and (2) it must have secondary rules that are accepted as normal standards of behavior as accepted by
third-party officials.
In contrast to Hart, John Austin has a different theory of a society. In his view, the sovereign
creates the primary rules of a society, and out of conformity and habit, society-at-large complies.
Sovereigns are also not generally bound to the rules they create, enabling them to create rules without
impunity. He also draws a distinction between rules and commands commands are rules that are both
backed by force, and threaten sanction if not obeyed. His theory, however, makes no distinction
between commands that come from sovereigns in the form of rules, and commands that come from
individual persons for either good or evil intentions.
Hart has a number of criticisms of Austin's Command Theory (ACT), particularly as it relates to
the forced compliance of rules simply because they are created by a sovereign. While they are not in
any particular order, ACT cannot account for laws that are made by a non-lawmaking, non-sovereign
body, such as judicial decisions or contracts. It does not discern laws that are just or valid, and doesn't
question their validity or acceptance. It speaks of conformity as if it's a given, rather than questioning
the nature of it. ACT does not specify a framework for the three types of rules that Hart outlines in his
arguments for primary and secondary rules. ACT also doesn't take the concept of internal and external
observance of rules into consideration. It's one linear theory with too much uncertainty, which Hart
would consider a defect.
Per Hart, internal observers of the rules are the ones who follow them directly and are impacted
the most by them. An example we raised in class were traffic laws internally, we recognize that at a
red light, we apply our brakes and wait for the green light to allow us to proceed. We also accept traffic

laws as regulating our ability to traverse the open road out of concern for safety, and to ensure that all
people are operating a motor vehicle the same way. In fact, traffic laws are so vital to the safe
operation of our roadways that we undergo specialty training that teaches us these laws, and upon
successful completion, the state licenses us to operate.
External observers, as the name implies, are looking at a society from an external or removed
point of view. The most common example of this is 'people watching'. In the process of your
observations, you are noting different rules about how people are conducting themselves how they
dress, how they navigate the world around them, their visual appearance, perhaps you eavesdrop on
any conversations they may be having, or maybe you can infer from their body language and
mannerisms how they may be feeling. External observers are not bound to the rules of the society they
observe; they are merely observing, but their focus is more on how other people are complying with
laws around them. Perhaps, they will notice that nobody is smoking cigarettes, maybe everyone is
bundled up due to the weather, or maybe it's a weekday, so kids are in school.
Both philosophers have interesting arguments regarding their theories of society might be the
most ideal. I would say that the optimal argument rests in the type of society being spoken of. Since
societies can be as small as a household of husband, wife, and children, or as large as a city, there's no
'one size fits all' solution. I will now present how both Austin and Hart's philosophy could best apply.
With a husband, wife, and let's assume a one child household, Austin's model for a society
would benefit. Mother and father comprise the sovereign that creates the rules of the house, though
they may not bind themselves to them. Children comply with the rules, both due to the teachings of
their parents, but out of learning that non-compliance will result in a sanction. For the purposes of this
example, let's define a sanction as the child not being allowed to eat dessert after dinner. For the most
part, conflict is resolved with the parents explaining to the child what they did wrong, and the child
accepting it for what it is. In this society, there is no need for adjudication since the predominate source
of conflict will be between parents and child, and whatever the parents' decision is, stands. Since this
child came into the society by birth, the promulgation of rules would just occur as they grow up. There's
no constitution needed in the household, since the parents are mostly working off what could be
thought of as common law and mutually agreeable rules, making secondary rules unnecessary.
On the other hand, let's take the city of Milwaukee and apply Hart's model of a society. The
sovereign of Milwaukee is the mayor and the position is established in a written charter and filled by
legal precedent. Any law to be created must go through a body of lawmakers who have been conferred
the rules of change. Once a rule goes through the process of becoming an ordinance to be enforced,
individuals conferred with the rules of recognition then ensure that this new ordinance is followed and
enforced when defied. In this society, the sanction for defiance of the ordinance is either a monetary
fine, or arrest by a police officer. If the defiant person feels that the police officer erred in their
judgement, or failed to enforce the ordinance properly, he can appeal it to people conferred with the
rules of adjudication to get an equitable result. Since what I am describing is government, and there is
always conflict between citizens and its government, there will always be a need for an adjudicating
body. In this society, thanks to the advent of the internet, individuals living within the society can get on
the internet and search for the ordinance in question. Furthermore, due to the fact that government
works within the confines of a legal system according to Hart's two rules, when the ordinance came into
effect, it was promulgated throughout the city via newspapers, television, radio broadcasts, and in the
21st century, social media. While states and nations are bound by constitutions, most cities are bound
by charters (secondary rules).

In the household example, the only members of the society that are likely to come and go, are
the children as they enter via birth, and exit when they are of age and their life circumstances take them
away. The rules of the household are unlikely to change much, and even when they do, they only need
to be known for the occupants of the house, in addition to anyone the parents may choose to have for
company. If rules are to change, there are no secondary rules conferring power onto the parents to
make new rules or terminating existing rules. In addition, there is no charter that defines the rules of
this household, except for what could be considered a form of common law. Adjudication of conflict
requires no neutral party unless the conflict escalates to a point where the household resources become
insufficient (such as a burglar). To summarize, while Hart lodges a number of criticisms over the
application of Austin's theory, they would be moot in this example.
In the example of Milwaukee, people are relocating to and from on a daily basis. In fact, in
moving to Milwaukee, WI from Shrewsbury, MA, I exited multiple societies and entered multiple
societies: I left my parents' house within the town of Shrewsbury, and entered Kenilworth Apartments
within the city of Milwaukee. In addition, Hart's theory becomes more applicable when you consider
that a city needs to have a form of government with promulgated rules and a valid legal system in order
for the society to be orderly. Unlike the household situation described above, you are dealing with a
larger society whose values and ideals vary with no guarantee that any two people will get along. Some
social norms and constraints are understood, but there are always some primary rules that will change
between societies. With those changing primary rules, and the unfeasibility that a member of a society
will know all possible rules, makes for the requirement of a neutral third-party, who will inform those
new members of the rules. Hart's theory requires rules to be promulgated among the society, as well as
available for inspection, which promote the idea of new members of a society to know what those rules
are, but you will never have anyone who knows all the rules at any given time.
John Austin's theory assumes a very simple, but orderly society. The laws are made by a
sovereign entity not bound by what it passes, and it relies on the society to self-regulate and selfconform. In some ways, Austin's theory works nice with the utopia mentioned at the start of this essay.
In two lectures, we explored the concept of someone who removes himself from one society and lives in
another. While Austin's theory contains no requirement for rules to be promulgated or specifically
enumerated, it does rely on people to be observant enough to realize what and what isn't permissible in
the society. Hart would refer to this as an 'external observation' of the societal rules, which involves
observing the rules from the outside-in and taking them at face-value without being formally bound to
them. Once you are part of the society and are formally bound to them, you view the rules from an
'internal observation' where not only do you conform with the rules, but for reasons that are reasonably
apparent.
Having considered both philosopher's points of view and how their theories apply to different
types of societies, I find Hart's theories on what constitutes a legal system to be better structured and
allow for more precision in how a society should run itself, but I believe that his theory was designed for
larger societies that demand greater precision. Austin's Command Theory is also noble despite some of
its flaws. It is generally understood that lawmaking does primarily rest with a sovereign figure, but the
flaws rest in the discovery that laws can come from other sources such as adjudication or contract law.
With respect to compliance with the rules, it is understood that the members of any given society will
comply with the rules at least 95% of the time. Austin's theory does not account for the 5% that will
defy the rules for one reasons or another, but I would argue that the deviant occurrences are so seldom
that they would be overlooked, or swiftly dealt with.

In the year 2016, it is difficult to conceive of the utopian society where all members coexist in
harmony with each other, but I can hypothesize that there was a time when it was possible. Humans by
their very nature are very capable of conducting themselves according to a set of unwritten rules, are
capable of policing themselves, and are capable of collaborating with others to seek change where
necessary. In class, we have discussed social contracts, the difference between positive law and divine
law, and finally we discussed the difference between moral and legal obligations. As a class, we have
agreed that morality is the driving force behind many rules that we observe both internally and
externally today, but that not all legal rules are necessarily moral. Austin would have you believe that
sovereign law is absolute with very little ambiguity, whereas Hart requires the law to meet some specific
guidelines to ensure validity and efficacy to remove as much ambiguity as possible.
While the primary goal of this paper was to compare and contrast both Austin and Hart and
argue that one is better than another, I find myself unable to conclusively choose one as being better, as
I believe that both theories have their place.

Works Cited:
Philosophy of Law: Classic and Contemporary Readings with Commentary. Eds. Frederick Schauer and
Walter Sinnott-Armstrong. Oxford University Press, 1995.
Madison, James. "The Structure of the Government Must Furnish the Proper Checks and Balances
Between the Different Departments." New York Packet. February 8, 1788.