HART’S MODIFICATION OF

THEORIES OF AUSTIN AND

KELSEN

(Final draft submitted in the fulfillment of the project for the subject
Jurisprudence I)

Submitted to, Submitted by,

Dr. Manoranjan Kumar,. Ashutoshkumar
Faculty of Law. Roll no 1616
Chankya National Law University, B.B.A. LL.B(Hons)
Patna.

1
Table of Contents
ACKNOWLEDGMENT................................................................................................................. 3
DECLARATION BY THE CANDIDATE .................................................................................... 4
INTRODUCTION .......................................................................................................................... 5
Reformulation of analytical positivism ....................................................................................... 5
AIMS AND OBJECTIVES ............................................................................................................ 7
HYPOTHESES ............................................................................................................................... 7
RESEARCH METHODOLOGY.................................................................................................... 7
AUSTIN’s theory of law ................................................................................................................. 8
History......................................................................................................................................... 8
AUSTIN THEORY OF LAW: ................................................................................................... 9
The Province of Jurisprudence Determined .............................................................................. 10
KELSON PURE THEORY OF LAW ......................................................................................... 12
MPLICATIONS OF THE PURE THEORY: ........................................................................... 13
H.L.A. HART’s MODIFICATION “an overview” ...................................................................... 15
H. L. A. Hart and the relationship of law and morality ............................................................ 15
Hart and the internal point of view ........................................................................................... 15
Hart’s legal normativity ............................................................................................................ 16
HARTS MODIFICATION On AUSTIN...................................................................................... 17
HART’S MODIFICATION OF KELSEN’S THEORY............................................................... 20
Conclusion .................................................................................................................................... 23
BOOKS ..................................................................................................................................... 24
WEBSITIES .............................................................................................................................. 24

2
 ACKNOWLEDGMENT

Writing a project is one of the most difficult academic challenges I have ever faced. Though this
project has been presented by me but there are many people who remained in veil, who gave
their support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Manoranjan Kumar without the kind
support of whom and help the completion of the project would have been a herculean task for
me. She took out time from his busy schedule to help me to complete this project and suggested
me from where and how to collect data.

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“HART’S MODIFICATION OF THEORIES OF AUSTIN AND KELSEN” submitted at
Chanakya National Law University; Patna is an authentic record of my work carried out under
the supervision of Dr. Manoranjan Kumar. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

ASHUTOSH KUMAR

Chanakya National Law University, Patna

4
 INTRODUCTION
Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was professor of
jurisprudence at the University of Oxford. His most important writings included Causation in the
Law (1959, with A.M. Honoré), The Concept of Law (1961), Law, Liberty and Morality (1963),
Of Laws in General (1970), and Essays on Bentham (1982).

The Concept of Law (1961) is an analysis of the relation between law, coercion, and morality,
and it is an attempt to clarify the question of whether all laws may be properly conceptualized as
coercive orders or as moral commands.

Reformulation of analytical positivism

His theory bridges age-old gap- a very comprehensive reformulation of analytical positivism has
been done by Hart in his ‘concept of law’. His theory on the one hand builds on and, on the other
hand, makes important modifications in the theories of Austin and Kelsen. “two aspects of Hart’s
analysis of the concept of law are of special importance, in the first place, he bridges the age- old
conflict between the theories of law emphasizing recognition and social obedience as the
essential characteristic of a legal norm, and those that see the distinctive characteristic of law in
the correlated elements of authority, command, and sanction.” The former approach is that of the
Savigny, Ehrlich and others. The latter is that of Austin, Kelsen and their followers.1

Hart says that there is no logically necessary connection between law and coercion or between
law and morality. He explains that to classify all laws as coercive orders or as moral commands
is to oversimplify the relation between law, coercion, and morality. He also explains that to
conceptualize all laws as coercive orders or as moral commands is to impose a misleading
appearance of uniformity on different kinds of laws and on different kinds of social functions
which laws may perform. He argues that to describe all laws as coercive orders is to
mischaracterize the purpose and function of some laws and is to misunderstand their content,
mode of origin, and range of application.

Laws are rules that may forbid individuals to perform various kinds of actions or that may
impose various obligations on individuals. Laws may require individuals to undergo punishment
for injuring other individuals. They may also specify how contracts are to be arranged and how
1
https://www.studocu.com/en/

5
official documents are to be created. They may also specify how legislatures are to be assembled
and how courts are to function. They may specify how new laws are to be enacted and how old
laws are to be changed. They may exert coercive power over individuals by imposing penalties
on those individuals who do not comply with various kinds of duties or obligations. However,
not all laws may be regarded as coercive orders, because some laws may confer powers or
privileges on individuals without imposing duties or obligations on them.

Hart criticizes the concept of law that is formulated by John Austin in The Province of
Jurisprudence Determined (1832) and that proposes that all laws are commands of a legally
unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or
obligations on individuals. Hart says, however, that laws may differ from the commands of a
sovereign, because they may apply to those individuals who enact them and not merely to other
individuals. Laws may also differ from coercive orders in that they may not necessarily impose
duties or obligations but may instead confer powers or privileges.

6
 AIMS AND OBJECTIVES
The Aims and Objectives of this project are:

1. To study and understand theory of Austin.

2. To study the understand the theory of Kelsen.
3. To studyand understand the modification made by H.L.A. Hart.

HYPOTHESES
The researcher considers the following hypothesis:

1. Hart says that there is no logically necessary connection between law and coercion or
between law and morality.
2. laws may differ from the commands of a sovereign, because they may apply to those
individuals who enact them.

RESEARCH METHODOLOGY

For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate form,
essential for this study.

The method used in writing this research is primarily analytical.

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 AUSTIN’S THEORY OF LAW
History

John Austin was born in 1790. In 1818 he was called to the bar .for seven years ,he practised law
but without success. In 1819, he married Sarah Taylor a women of great intelligence, energy and
beauty. When the university of London was founded, Austin was appointed as professor of
jurisprudence and he spent the next two years in preparing his lectures.

His opening lectures were attended by john Stuart Mill, Romilly and others .After initial success,
Austin failed to attract new students and he resigned the chair in 1831. Through the efforts of his
wife, an expanded version of the first part of the lectures was published in 1831 under the title of
“the province of jurisprudence determined “Austin repeated the lectures in 1834 but without
success .Hence he gave up gave up teaching jurisprudence altogether.2

Austin wrote with extreme difficulty. He imposed on himself .he standards of precision and
clarity that made work a torment .Between 1832 and 1859; he published only a couple of articles
and a pamphlet –a plea for the constitution.

The second edition of the province of jurisprudence was published by this widow in 1861. She
also reconstructed from the notes of her husband “lectures on jurisprudence “or philosophy of
positive law” and published them in 1863.Austin is called as the father of English jurisprudence
and the founder of the analytical school. Allan prefers to call Austin school as the imperative
school. It is contented that Austin does not fit exactly into any of the important schools.3

This critical review provides an analytic summary of John Austin’s The Province of
Jurisprudence Determined, focusing in particular on Lectures I and II, and concludes by
developing two critiques of Austin’s theory of law. Specifically, in the summary I review the
conceptual foundations of Austin’s command theory and the two types of law “properly so
called,” namely the general commands that men impose upon other men to regulate their
conduct, and the divine laws that are revealed either through scripture or by applying the

2
http://www.scandinavianlaw.se/pdf/48-24.pdf
3
https://legalthoughtsite.wordpress.com

8
principle of utility to the analysis of social practice. In my critical interjection, I raise two
objections to Austin’s theory: First, that Austin fails to persuasively consider the prospect of a
conflict between divine natural law and state-sanctioned positive law, along with the
consequences of the application of the principle of utility to adjudicate such a conflict; and
second, that despite the claims to general applicability implied throughout Austin’s framework,
his conceptualization of the law remains a prisoner of both time and place, collapsing in the face
of Montesquieuian systems of separation of powers or contemporary constitutional practices.

AUSTIN THEORY OF LAW:

Austin most important contribution to Legal theory was substitution of the command of the
sovereign for any ideal of justice in the definition of law. He, defined law as “a rule laid down
for the guidance of intelligent being by an intelligent being having power over him” law is
strictly diverged from justice. It is based on the power of a superior .this units Austin with
Hobbes and other of sovereignty

. In Austin positivists of law ,the law of god seems to fulfil too others function then that of
serving As a respectable for Austin utilisation beliefs .the principle of utility is the law of god.

Human law are divisible into possible laws and laws improperly so called .the former are law set
by political superiors to political subordinate or laws set by subjects as private person in
prudence of legal rights granted to them.

. Laws improperly so called are those laws which are not set directly or indirectly by a political
superior .In this category are diverse type of rules, such a rules of clubs , law of fashion, laws of
natural science ,the rules of so called international law .Austin gave these the name of positive
morality. Laws improperly so called also included a final category called “laws by metaphor
which covered expression of uniformities of nature.4

According to Austin positive law has four elements · Command · Sanction · Duty · Sovereignty.

According to Austin “law is a command of the sovereign “command implies duty and sanction
law properly so called are species of commands. Every law properly so called flow from a

4
https://legalthoughtsite.wordpress.com

9
determinate source or emanate from a determine author. . The power and purpose to inflict
penalty for disobedience are the very essence of a command .the person liable to the eviler
penalty is under a duty to obey it .the eviler penalty for disobedience is called sanction.

The power and purpose to inflict penalty for disobedience are the very essence of a command
.the person liable to the eviler penalty is under a duty to obey it .the eviler penalty for
disobedience is called sanction. The view of Austin is that it is the sanction alone which induces
men to obey law .This is not a corrective view. According to lord Bryce, the motives which
induces a men to obey law are indolence, deference, sympathy, fear and reason. The last resort to
secure obedience..

Critics point out that law is not an arbitrary command as conceived by Austin but growth of
organic nature. Law has not growth due to blind force but due to conscious efforts for definite
ends.

The Province of Jurisprudence Determined

John Austin’s stated purpose in The Province of Jurisprudence Determined1 is to “distinguish

positive laws (the appropriate matter of jurisprudence) from objects by which they are connected
by ties of resemblance and analogy,” namely by determining “the essence or nature which is
common to all laws that are laws properly so called” As such, Austin’s is a conceptual enterprise
– to precise the definition of the “law” in contradistinction to cognate concepts, and to
subsequently proclaim its study to be the province of legal analysis. To this end, Austin promotes
a command theory of law: “A law is a command which obliges a person or persons, and obliges
generally to acts or forbearances of a class” or a “course of conduct” Yet the law is not
equivalent to any command, but constitutes a subtype of the concept of ‘command’: only when
the command “obliges generally” – usually by possessing both ergo omnes effects (synchronic
generality) and by obliging its audience to a particular conduct into the future (diachronic
generality) – rather than in an ad hoc fashion vis-à-vis a “specific act or forbearance,” does it
constitute a law.5

5
Austin, John. 2000 [1832]. The Province of Jurisprudence Determined. Amherst, NY: Prometheus.

10
Second, Austin reasons that “aws set by God to his human creatures [the law of nature],” are also
embraced within the command definition of law.These may either be “revealed” via “the word of
God the medium of human language uttered by God directly, or by servants whom he sends to
announce them,” or they may be “unrevealed” (pg. Austin devotes most of his second lecture to
proclaiming the principle of utility as the necessary conduit for unearthing unrevealed natural
laws: “the benevolence of God,” he writes, “with the principle of general utility, is our only
index or guide to his unrevealed law.”In this endeavor, Austin takes a rather empirical approach:
the object of jurisprudence is to leverage our God-given intellectual faculties for observing
individual behavior to subsequently answer the following question:

“If acts of the class were generally done, or generally forborne or omitted, what would be the
probable effect on the general happiness or good?” When the effects would be “pernicious, we
must conclude that he enjoins or forbids them, and by a rule which probably is inflexible” As
such, the calculus promoted by Austin is one that takes social behavior, rather than individual
action, as the requisite signal to reveal the natural law. The logic, as applied to a contemporary
example, would unfold as follows: to evaluate, say, whether homosexuality is against the natural
law, we should not apply the principle of utility to assess the proper treatment of a gay person in
a single case; rather, we should ask whether the general welfare would be improved or depressed
by endowing LGBT persons with equal treatment. If the latter is the case, then the prohibition of
homosexuality is revealed to be part of God’s law.

A command, furthermore, always “expresses or initmates of the wish being presented” by a

superior to his inferiors – it, in other words, demands a theory of sovereignty, or of legal
personalit. By “superior,” Austin does not understand some form of “precedence or excellence”
– but a more raw notion of domination: “superiority signifies might: the power of affecting
others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to
one’s wishes” This is a highly hierarchical conception of law, which suggests the impossibility
of properly legal horizontal agreements amongst equals (say, between private parties of equal
social status) absent a superior authority sanctioning the agreement and possessing the power to
punish non-compliance.

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 KELSON PURE THEORY OF LAW
The ‘Pure theory of Law’ which is also known as ‘Vienna School of Legal Thought’ was
propounded by Hans Kelson, a professor in Vienna (Austria) University.Though the first
exposition of theory took place in 1911, it came in full bloom in postwar Europe. The Austria
Code, in force at that time was prepared hundred years before when the natural law was at its
height. The ‘pure theory of law’ also rejected the idea of natural law.

Kelson’s theory came also as a reaction against the modern schools which he considered the
boundaries of jurisprudence to such an extent that they seem almost co-terminous with those of
social science. After World War-I, most of the countries adopted written constitution the idea of
a fundamental law as basis of legal system was referred in them. The idea of ‘Grund Norm’ and
the definition of law as “hierarchy of norms” seem to be inspired by the above principle.

In the words of Prof. Dias, the pure theory of law of Hans Kelson represents a development in
two different directions. It marks the most refined development in two different directions. It
marks the most refined development to date of analytical positivism. He sought to expel
ideologies of every description and present of law, austere in its abstraction and severe in logic.

According to Kelsen ‘pure theory of law means that it is concerned solely with that part of
knowledge which deals with law, including from such knowledge everything, which does not
strictly belong to the subject matter of law. That is, it endeavours to free the science of law from
all foreign elements. This is its fundamental methodological principle. According to him, a
theory of law must deal with law as it is actually laid down and not as it ought to be. In this, he
agreed with Austin and insistence on this point got him title of ‘postivist’. 6

A theory of law must be distinguished from law itself. According to Kelsen, a theory of law
should be uniform. It should be applicable to all times and in all places. Kelsen advocated
general jurisprudence. He arrived at generalisations which hold good over a very wide area. 9.
Kelsen writes that theory of law must be from ethics, politics, sociology, history, etc...In other
words it must be pure. Kelsen did not deny the value of ethics, politics, history, sociology,
etc…but his theory of law was clear of those considerationThe aim of a theory of law is to

6
https://journals.openedition.org/revus/3984

12
reduce chaos and multiplicity to unity. legal theory is science and not volition. It is knowledge of
what the law is not of what the law ought to be.

According to Kelsen, law is a normative science. But law norms of being of ‘Is’ (sein),while the
law norms are ‘ought’ (sollen). Law does not attempt to describe what actually occurs but only
prescribes certain rule. As a theory of norms, legal theory is not concerned with the effectiveness
of legal norms. The relation of legal theory to a particular system of positive law is that of
possible to actual law.To Kelsen knowledge of law is knowledge of norms. A norms is a
proposition in hypothetical form. The science of law consists of the examination of the nature
and organisation of normative proposition..7

The aim of theory of law is to reduce chaos and multiplicity to unit · Legal theory is science and
no volition. It is knowledge of what law is. · The law is a normative, not a natural science. ·
Legal theory is a theory of norms and is not concerned with effectiveness of legal norms. · A
theory of law is formal, a theory of way of ordering, changing contents · The relation of legal
theory to a particular system of positive law is that of possible to actual law.

IMPLICATIONS OF THE PURE THEORY:

Certain conclusions were made by Kelsen. The implications of Kelsen’s theory are wide and
many. It covers the concepts of state, sovereignty, private and public law, legal personality, right
& duty and international law. Kelsen empathetically denies the existence of sovereign as a
personal entity. He denies also the existence of state as an entity distinct from law. State is
neither more nor less than the law, an object of normative juristic knowledge in its ideal aspect,
that is, as a system of ideas, the subject matter of social psychology or sociology in its material
aspect. As the state is nothing but a legal construction, there is no demarcation between physical
and juristic persons. A law is a system of normative relations. All legal personality is artificial
and deduces its validity from a superior norm. according to Kelsen, the concept of person is
merely a step in the process of concretisation and nothing else.

7
Fuller, Positivism, supra note 18, p. 639. See also Goldsworthy, Jeffrey D., The SelfDestruction of Legal
Positivism, Oxford Journal of Legal Studies Vol. 10 1990, p. 460.

13
According to Kelsen, there is no difference between legislative, executive and judicial processes
as they are all norm creating agencies. For Kelsen the distinction between substantive and
procedural law is relative, procedure assuming greater significance. It is the organ and process of
concretisation that constitute the legal system. The distinction between questions of law and fact
becomes relative. The ‘facts’ are a part of the condition contained in the ‘if X’ part of the
formula, ‘If X, then Y ought to happen.’ The application of norm concretises every part of it. 6.
The most significant feature of Kelsen’s doctrine is that, the state is viewed as a system of human
behaviour and an order of compulsion. The conclusion is that, state and law are identical but this
does not mean that every legal order is a state. E.g. orders in primitive communities. Only
relatively centralised legal orders are states.

Kelsen’s conception of law as a system of normative relations leads to the conclusion that there
is no such thing as individual right in law. Legal duties are the ‘essence of law’. Law is always a
system of oughts’. The concept of right is not basically essential for a legal system. Kelsen says
that international law is a judicial order .To remove the difficulty which arise by the fact that
international law does not losses all the characteristic of law especially the appearance of
compulsion he says that it is comparable to primitive law .The international law is in early stages
of and In future will have all the characteristic which the modern law has it . The weakness and
limitation of the pure theory is more exposed in their point .8

So for as the ground norm of international laws concerned Kelsen points out that it is “pacta surt
servanda” he says that the sanction of the international law are war and reprisals .but nobody
would for the war and reprisal and sanction in the legal sense. .a number of wars have taken
place not as a sanction but in utter violation of the international law .International organisation
also have no tribunal to decide with binding effect whether war is under a sanction or not.

88
V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006

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H.L.A. HART’S MODIFICATION “AN OVERVIEW”
T HIS ARTICLE is a critical exposition of The Concept of Law,' a book by H. L. A. Hart,
Professor of Jurisprudence at the University of Oxford. Published in 1961, The Concept of Law
is surely the most important book in the field of analytical jurisprudence to appear for many
years. In this book, Professor Hart for the first time attempts to state his views on many of the
traditional problems of legal philosophy in a comprehensive and systematic way. In preparing
this article, I have drawn on writings of Professor Hart that antedate publication of The Concept
of Law, and have also drawn on some of the reviews of the book that have appeared in law and
philosophy journals.

H. L. A. Hart and the relationship of law and morality

Hart and the internal point of view

H. L. A. Hart, like Kelsen, emphasized the normativity of law in his criticism of earlier legal
theorists (particularly that of John Austin), and in the development of his own, more hermeneutic
theory of law. Hart argued that Austin’s command theory did not sufficiently distinguish a
community acting out of fear, the “gunman situation writ large”. 9 from a community where the
officials and at least some portion of the citizens treated the law as giving them reasons for
action – what Hart called “the internal point of view”.10

As part of the legal positivist separation of law and morality that he advocated, (a) Hart is careful
not to claim that citizens must accept the law as giving them reasons for action (he does not even
discuss the circumstances under which citizens should do so); and (b) he offers a broad and
open-ended set of reasons for why citizens might accept the law as giving them reasons for
action. Hart writes that a citizen “may obey it [the law] for a variety of different reasons and
among them may often, though not always, be the knowledge that it will be best for him to do
so”.36 And later: “[A]dherence to law may not be motived by it [moral obligation], but by

9
Hart 1958: 603.
10 10
V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006

15
calculations of long-term interest, or by the wish to continue a tradition or by disinterested
concern for others”.11

Hart’s legal normativity

The question still remains for Hart: what is the nature of this normativity of, or in, law? The law
prescribes behavior – to act in certain ways, and to avoid acting in other ways – and also
empowers citizens to use legal institutions and processes for their own purposes (through wills,
contracts, and the like). If under a Hartian analysis someone accepts the legal system as giving
reasons for action, what kind of reasons are those? Is there any alternative to understanding these
reasons as moral reasons?

One alternative that comes immediately to mind is that people often obey the law for purely
prudential reasons: to avoid the financial penalties, potential loss of liberty, or public humiliation
that can come from being adjudicated a law-breaker. However, Hart builds his theory of law
from a critique of Austin’s command theory of law, and a key part of Hart’s critique is that for
many people law is more than (that phrase again) the “gunman situation writ large” – that a
perception of (legal) obligation can frequently be something different from merely feeling
obliged (coerced). Hart clearly intends an understanding of legal normativity where legal reasons
are something distinct from (mere) prudential reasons.12

Hart could be read as treating law as a sui generis form of normativity, and there is support for
this position in a number of his writings. As mentioned, Hart, as legal positivist, does not explore
whether there are good moralreasons for accepting a particular legal system (or all legal systems)
as giving reasons for action. Analogously, Hart does not explore in any length what kind of
reasons people might think that the law gives them. It is sufficient for Hart that some people treat
the law as giving reasons for action; this is a fact for which the descriptive or conceptual theorist
should attempt to account. As Hart sees it, it is not for the theorist of law to be too concerned
about what sort of reasons these might be, and whether they are well grounded. Elsewhere (as
part of his debate with Lon Fuller), Hart emphasizes that one should not confuse “ought” with
morality – that there were many forms of “ought,” many sorts of reasons for action.

11
https://journals.openedition.org Hart 2012: 232.
12
https://journals.openedition.org

16
 HARTS MODIFICATION ON AUSTIN
Austin believed that law is a species of command. He further defined a command as ―an
intimation or expression of a wish to do or forbear from doing something, backed up by the
sanctions to do harm to the actor in case he disobeys.‖

Furthermore, the person to whom the command is given is under a "duty" to obey it, and the
threatened harm is defined as a "sanction."27 According to Hart, the idea that law consists
merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal
systems have laws governing the formation and implementation of contracts, of wills, marriages
and other executory instruments.

Hart calls these types of laws ―power conferring rules,‖ and argues that they are less in the
nature of orders backed by threats, and more in the nature of rules creating a framework within
which individuals can define the scope and limit of their rights, obligations and liabilities.13 Hart
also considers another variety of laws, laws which define the scope and limitations of judicial
and legislative power, laws which confer jurisdiction upon courts and govern the functioning of
governmental institutions.

He argues that it is impossible to view these laws as mere orders backed by threats either.
Attempts, however, have been made to assimilate power-conferring rules within the broad ambit
of orders backed by threats. According to the first of these theories, the nullity that is a
consequence of not complying with the framework established by power-conferring rules is the
Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in
a criminal statute, which is more in the nature of an order backed up by threats, the sanction is
necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an
order that prohibits something without imposing a sanction); however, in the case of
powerconferring rules, the provision for nullity is part of the rule itself.14

For instance, it would be impossible to conceive of the provisions that govern how to make a
valid will without conceiving that the will cannot exist without these provisions. Hart has a

13
30Available at https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf, last seen on 07/11/17.
14
Monist, Volume 68, Issue 3, 1 July 1985, Pages 403–418, https://doi.org/10.5840/monist198568330 last seen on
07/11/17.

17
number of subsidiary objections as well, such as nullity not always being a source of evil (for
instance, to the judge who rules without jurisdiction).

A second theory argues that power-conferring rules are not genuine laws. This theory views as
all laws as directions to officials to apply sanctions in case of non-compliance. A power
conferring rule, therefore, would be viewed as a direction to the requisite official not to confer
validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues,
however, that such a theory achieves uniformity at the high price of distorting the true nature of
laws. For instance, the point of criminal law is to establish certain standards of behaviour, which
the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the
system breaks down. It is therefore misleading to consider criminal law as directions to officials
to apply sanctions. The same logic applies to power-conferring rules as well.

The second basic objection Hart has to Austin is regarding the range of application of laws. As
Hart points out, the word ―command‖ implies a top-down stable hierarchy of men, with rules
being purely other-regarding. However, this is not true in modern legal systems, as legislations
often have a self-binding force. In an attempt to respond to this, it has been argued that a
legislator has two personalities: his legislative personality, which gives the command, and his
ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a
complicated device is unnecessary to explain the self-binding nature of legislation. A legislation
can be viewed as a promise, which creates obligations upon the promisor. And in any event,
much of legislation is done under the ambit of pre-existing rules of procedure, which bind the
legislators.

Hart‘s third objection to Austin is with regard to laws such as customary laws, whose mode or
origin excludes them from being treated as commands. 15 To this, it has been argued that the
validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are
implementing customary law, and the legislature does not repeal such laws, then this might be
said to be an implied command that customary law is to be followed. However, Hart argues that
absence of objection does not mean implied consent. It could equally well mean a lack of
knowledge, or a lack of awareness, or numerous other reasons. On the three grounds of content

15
Philosophy 34, Hart‘s Criticisms of Austin and the Realists http://carneades.pomona.edu/2016-
Law/04.HartAustin.html last seen on 07/11/17.

18
of laws, range of application, and mode of origin, Hart rejects the idea that law is merely an
amalgamation of coercive orders backed up by threats16

Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to
explain the continuity of laws. Mere habits of obedience to orders given by one legislator cannot
confer on the next legislator any right to succeed the old, or to give orders in his place. Why is
the law made by the successor to legislative office already law before even he has received
habitual obedience? To answer this question, it becomes essential to distinguish between a habit
and a rule. Rules require not only convergence of behaviour, but also convergence of attitude.
That is to say, rules are viewed as standards of behaviour, where deviance is considered as
meriting criticism.

Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law
made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually
obey him? Once again, this requires us to replace the notion of habits of obedience with a
concept of rules that delineate rights of succession.

Hart‘s final objection to Austin is that the sovereign does not possess, as Austin believed, a
―legally untrammeled will.‖ Most modern legal systems have legal limitations upon the power
of the sovereign (and this is not inconsistent with his supremacy within the legal system as the
highest known legislative authority). Recognizing such a problem, Austin had argued that in
democracies, it was the electorate that formed the sovereign. However, according to Hart this
leads to the absurd conclusion of the ―bulk‖ of the society habitually obeys itself. It may be
argued that legislators make rules in their official capacity, rules which then apply to them in
their personal capacity. However, the very notion of official capacity presupposes the existence
of rules that confer such official capacity. This, therefore, is again incompatible with the
Austinian idea of sovereignty.

On all these grounds, therefore, Hart rejects Austin‘s ―command theory of law‖ as sufficient to
explain the legal systems of modern societies.

16
30Available at https://www.pravo.unizg.hr/_download/repository/Hart_vs_Austin.pdf, last seen on 07/11/17.

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 HART’S MODIFICATION OF KELSEN’S THEORY
In this respect, there is some affinity with John Austin's 'command' theory of law. But Kelsen's
approach is quite different from Austin's. Austin finds the defining characteristic of law on the
plane of the signifier, in imperative utterances. Kelsen has almost no interest in the signifier but
focuses on the signified: a 'norm' is an utterance that, whatever its grammatical form, has the
meaning 'ought (Sollen)'.Austin and Kelsen also differ in that, for Kelsen, legal norms are
addressed primarily to officials. Officials are directed to apply sanctions to individuals when the
individuals' behaviour does not conform to a pattern specified in the norm. It is anticipated that
individuals, in choosing how they will behave, will take into account the possibility that an
official will apply the sanction. In that way, norms and the orders to which they belong can be
effective. However, most if not all jurists now accept H.L.A. Hart's point in The Concept of Law,
though directed principally against Austin, that not all legal norms are coercive - some, and some
of the most important, are facilitative. The Pure Theory of Law can accommodate this by
accepting that what matters most is not whether particular legal norms are coercive but whether,
by containing coercive norms, the legal order as a whole is coercive - which Hart does not
deny.17

The most obvious difference between Kelsen and Hart is that of methodology. Hart’s analysis
builds on close attention to actual practices and how they are perceived by their participants and
linguistic usage. On the other side Kelsen offers a logical analysis of law and of normative
thinking in general. While both Kelsen and Hart emphasized the normative aspect of law in
response to more reductive approaches, their notion of the “normative” differed. Hart’s view of
the normative reduced it to a combination of certain type of social facts while Kelsen resisted
any reduction of “normative” to facts. This means that Kelsen’s theory tended to be more
abstract and appropriate for his “pure theory”.

Kelsen and Hart differed on their understanding of validity of a legal system. Hart rejected
Kelsen’s theory of the basic norm. He claims there is a flaw in asking whether the basic norm is
valid or not. Hart rejects the question itself as meaningless. He claims the rule of recognition
provides the ultimate criterion of legal validity but is itself neither valid nor invalid. According to

17
V.D.Mahajan.Jurisprudence and Legal Theory,(Lucknow:Eastern Book Company)2006
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him it makes no sense to ask the question of “Whether the meter-bar in Paris is really a meter
long”. Further, Hart sees the rule of recognition as a luxury found in advanced social systems
unlike Kelsen who saw the basic norm as an essential presupposition of all legal systems.

Hart’s introduction of the “open texture” of rules is a recognition that legal rules cannot be
expected to provide for every factual situation that may arise. Hart was clear that a judge could
use moral standards in legislating in gaps in legal rules but that it did not follow from this that
these standards were already there in the rules for the judges to find them. Dworkin criticizes
Hart by maintaining that judges do not have a strong discretion, believing that even in “hard
cases” there is one right answer. Kelsen argued that legal norms necessarily come in systems
therefore there are no free-floating legal norms. He stated that (i) Every two norms that
ultimately derive their validity from one basic norm belong to the same legal system (ii) All legal
norms of a given legal system ultimately derive their validity from one basic norm. Joseph Raz
argued that the two postulates are inaccurate in that two norms can derive their validity from the
basic norm but fail to belong to the same system for example in the case of orderly secession
whereby a new legal system is created by the order authorizing another. Even if Kelsen erred
about the details of the unity of a legal system, his main insight of the unity of a legal system
remains true in that law is essentially systematic.

Lastly, Hart is a theorist that makes a more realistic contribution to legal jurisprudence as
reflected in modern social legal system. Hart understands that the law cannot just be “pure” as
Kelsen suggested but there is always an overlap with morality. For Hart the legal system is a
system of social rules in that the rules regulate members of the society and derive from human
practices. Indeed law is not morality, Hart understands this, but he also acknowledges the fact
that there is an overlap between law and morality hence in the majority of cases when laws are
passed, they comply with the moral principles of that society for example in Zimbabwe, and
homosexuality is prohibited because our society does not embrace that. Hart also stated that
judges play a critical role in making law; this is supported by the doctrine of judicial precedence
which states that lower courts are bound by the decisions of the upper court. Hart’s “soft
positivism” is a realistic concept in that he understands the relationship of other disciplines with
law unlike Kelsen who presented an abstract concept of the Pure Theory of law which seems not
to take notice of the role played by the society in law making. Hart also presented a true nature of

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the law in that not all laws are coercive as was stated by Austin. Some laws for example the Bill
of Rights in a Constitution is not coercive but provides for the rights and privileges of the
members of that particular society.

In summation, Kelsen and Hart are the prominent positivists of the twentieth century. They had
some similarities and differences as already discussed supra. It is therefore submitted that Hart
presents a theory that is much more realistic and commensurate to modern day legal system in
that a legal system is not an abstract concept that does not borrow from other disciplines like that
of morality.

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 CONCLUSION
The rule-based account explains specifically what the law is by so providing a powerful tool for
the analysis of what puzzles both legal practitioners and political theorists - If we use this new
model and apply it to specific legal problems, we will find more and better solutions to these
problems – gives Hart the key to extending the law as a concept - The explanatory power is of
the account lies in its acknowledgement of the internal point of view (or acceptance of the
relevant set of rules) – it makes an allowance for the internal point of view and puts it at the
centre of any jurisprudential enquiry – not everyone in society has to adopt an internal point of
view for the Law A legal system exists when two minimum conditions (necessary and sufficient)
obtain: 1. Its primary rules are generally obeyed within a social group – obedience to some
extent is an external area – you look at whether people behave and act in accordance with the
rule – this shows the level of obedience that is caused 2. Its secondary rules are accepted as
common public standards of official behaviour by its officials – social acceptance but this is
limited – not necessary that everyone accepts these rules – necessary that those in power that
adjudicate are of the internal view that these are right – must be accepted by the people making
the rules and not the society - No reference to morality enters the conceptualisation of law: legal
validity is independent of moral justification

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BIBLIOGRAPHY:

BOOKS
1. BH Bix (2009) Jurisprudence: Theory and Context 5(ed) Sweet and Maxwel: London.
2. NE Simmonds (2008) Central issues in Jurisprudence 3 (ed) Sweet and Maxwel:
London.
3. MDA Freeman (2001) Lloyd’s Introduction to Jurisprudence 7(ed) Sweet and Maxwel:
London.
4. Anonymous http//www.plato.stanford.edu Accessed 12 October 2013.
5. V.D. Mahajan's Jurisprudence and Legal Theory Edition: 5th.

WEBSITIES

1. http://www.scandinavianlaw.se/pdf/48-24.pdf
2. https://journals.openedition.org/revus/3302
3. http://www.academia.edu/13878922/The_Kelsen-
Hart_Debate_Harts_Critique_of_Kelsens_Legal_Monism_Reconsidered
4. http://www.legalservicesindia.com/article/772/Hart.html
5. https://www.studocu.com/
6. https://legalthoughtsite.wordpress.com/2017/01/29/harts-postscript-a-summary/
7. http://www.academia.edu/6705968/H_L_A_Hart_Notes_Concept_of_La_Chapters_2_3_
4_5_6

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