Hart's critique on Austin + Dworkin's critique on Hart

Philosophy of law essay

Write an essay on Hart’s critique of Austin and Dworkin’s critique of Hart from the perspective of the three statements of Ulpianus that we took as the guiding thread of the Philosophy of Law I lectures in the course of the semester. Relationship between law and power

We will talk about a very large subject, which many philosophers tried to explain and interpret during the years. We will talk about the different views of the philosophers about the concept of law, how they see and define the law, or in other words the relation between law and power.  Since the ancient Greek, people try to explain the complex perception of law. A very famous person which influenced perception of law, was the jurist and politician Dominitus Ulpianus ^[1], he wrote over 400 writings. He exposed three very famous and pertinent statements. These statements where written during the roman emperor time which explain his view of the emperor in the statements. First one, QUOD PRINCIPE PLACUTTI LEGIS HABET VIGOREM, translated it means, what pleases the emperor will become law. Or in other words what the emperor wishes will become law and people need to accept it. In the past the emperor was a very powerful person, so if he wanted to create a new law, he could do so if he wanted. Second one, PRINCEPS LEGIBUS SOLUTUS EST, the sovereign is not bound by the laws, he cannot be affected by the power of the laws. The sovereign could not be attacked from anyone if he committed a crime, he was in a certain way above the law. The third one is a more general one because it gives us the principle of justice in the view of Ulpianus, IUSTITIA EST CONSTANTS ET PERPETUA VOLUNPAS JUS SUUM CUIQUE TRIBUHENDI, Justice is constant and perpetual, will give to everyone his/her rights. So laws should not change often and should be made to endure in time. A good law, should be general so that the law doesn’t need to be changed afterwards. These three statements will be the fundament of the essay, because we will refer to them during the analysis of the different theories. We will analyse Austin theory of law, taken from his famous work Province of Jurisprudence^[2], also will we analyse Hart’s critique of Austin’s theory^[3]. In the second part we will shorty analyse Hart’s theory^[4] and analyse Dworkin’s^[5] critique on Hart’s theory.

We will start with a short analyse of Austin’s theory.

The first phrase of Austin’s province of jurisprudence defines his view of law, “The matter of jurisprudence is positive law”^[6], he follows the positivism current and considers the positive law as the primary law. But he also considers two other laws, the divine law which is the law of God and the positive morality, which not directly beget sanctions from the authorities, but rather religious or moral sanctions. Returning to the positive law, Austin considers the positive law as commands from a sovereign that enforces his commands by sanctions. The sovereign is the one who is obeyed by the majority of the population, he can be a unique person or a groupement of persons such as Parliament. Austin defines the command, “A command is distinguished from other signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded.”^[7] The command is not the fact to pronounce a desire, but to pronounce it with the power to inflict evil if the command is not respected. The person which is affected by the command has a duty to fulfil. So If the person doesn’t respect his duty, he risks to encounter the sanction. We can resume his vision of command,  a command is emitted from a sovereign, with the intention to sanction people if they don’t fulfil their duty from the command.^[8] These three terms a connected to each other, because you cannot have a command without a duty and a sanction. So if the evil is greater and the chance to incurring a sanction is also greater the chance that the command will be respected is greater. Austin makes a difference between a command and a rule, a command is occasional and particular, a rule while give an order to follow on a longer period. The decisions judges take are also called judicial commands, they enforce existing rules or laws. The sovereign gives the definition of the acts that need to be punished, but the judge can decide case by case which sanction he will give to the criminal, the decision of the judge is then an occasional or particular command.  Austin says that a command will not always end in a rule or law, an example from the text, if the sovereign commanded his subjects to wear black it would become a law, because they would wear it every day, but if he would command to wear black on a special day it would rather be a command because is occasional.^[9] Austin defines law as follow, a law is command that obliges persons to a course of conduct. Austin precise that commands are given by people which are superior to a person or persons, a father to his child, a master to his slave, etc. But he also says that the relation between inferior and superior are reciprocal, because if we take the example of the monarch who is superior to his subjects, but the subjects form together a superiority to the monarch. Austin defines the “sovereign” as a person which receives obedience from his subjects/population, but who doesn’t obey any other person or institution. He also states that the sovereign has limited power and only makes rules for his subjects. Here we can see a relationship between the second and the third statement and the view of Austin, because on one hand the sovereign is not threaten equally to the subjects. For Austin every judicial rule is in a sort command which imposes a duty and eventually a sanction. So in this view customary laws, aren’t laws or rules so called. Because they were not established by political superior, also that they are include in the positive law. We have briefly seen the lecture I of Austin’s Province of Jurisprudence, we will now have a quick look at the lecture II and the principle of utility explained by Austin.

The principle of utility is based on the welfare of the majority of the population. Austin includes god in his principle of utility, by saying that he gave us, the humans the possibility to distinguish between good and bad, and by giving us some rules that we need to follow^[10]. So that we can live together in peace. But even if he gave us this ability, there are always some persons which don’t follow “this divine rules of conduct”. If we harm a person to protect the welfare of the majority of the population, it’s good. Because if we punish the few criminals that commit crimes, this will prevent other persons to attempt doing similar crimes. In other words as Austin says: “By a dozen or score of punishments, thousands of crimes are prevented.”^[11] Also we can see an other example given during a lesson, which could help us a little to figure out this principle of utility . A terrible regime of terror in a country, in a village a police officer wants to execute 20 people for not having obeyed his commands: you tell the police officer, that can’t be done and then he tells you if you kill two of the twenty I set the other 18 free. ^[12] The question here is, would you kill two people to save the live of the 18 other? Respecting the principle of utility, you should, because you would guarantee the welfare of the majority of those people, by killing 2 of them. But it’s not that easy to kill two persons, even if you save the life of the others, we need to take in consideration that there are other aspects that need to be considered. But as Austin says at the end, “In the majority of the cases, the general happiness requires that rules shall be observed and that sentiments associated with these rules shall promptly obeyed.”^[13] 

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