In the Command Theory of Law, John Austin attempts to define law so that we can decide if law is morally good or bad.
He believed that law is commands set in place by the sovereign that are backed by punishments or penalties. Austin’s definition of law focuses on the four main concepts of command, sovereign, sanction and obedience. He thought that these four concepts explained law and there was no need for morality in law. Hart believed that Austin’s definition was inadequate for several different reasons. When considering the content of laws, he thought about what he called “power conferring laws” or laws that form contracts, wills and marriages which are found in modern legal systems. He believed laws like these create a structure that people can use to determine their own rights and responsibilities.
Hart also thought about laws that granted power to the legislative and judicial powers and argued that these are laws are not just orders backed by threats. Hart’s second argument was that by calling them “commands” that inferred that every law was a command from something or someone higher and disregarded an existence of self-binding laws, like the ones used in the legislator. Hart’s third argument involved the origin of laws.
Some would argue that if judicial branches are implementing customary laws and no one is objecting them, then there is implied consent. However, Hart argues that could just mean there is a lack of knowledge on the law. Austin defines sovereign as someone who society has a made a habit out of obeying. Hart argues against habitual obedience and the idea of an uncommanded commander. He argues that habitual obedience could not exist because we still obey laws that were put in place by people who died a long time ago and nothing is forcing new rulers to keep those laws in place once they take office. Both of these, he argues, could never explain habitual obedience.
Hart’s final argument focuses on the idea of an uncommanded commander. He argues that a sovereign cannot legally have independent power. Meaning that they legally do whatever they please because most modern legal systems put limits on sovereign power. Austin argued a system that was solely procedural and did not find morality relevant to the law. Hart disagreed with this because it was too simplistic.
After arguing, he added secondary rules to make it more intricate. The secondary rules allowed opportunity for a society to make changes and did not rely on habitual obedience. Primary rules are what citizens follow while secondary rules are directed towards the sovereign and allow them to conduct change to the primary rules. Hart says that if we take an external point of view of the primary rules, whether we agree with the rules or not or feel obligated to obey them or not, we can look at a legal system and see it as good and working. This is why he created the secondary rules, so we can take an inside look at the legal system and and find reasoning and justification for the primary rules. Fuller argued against both Austin and Hart because he believed you cannot have laws without morality. He argued that all social actions are based on morality and because morality exists in law, it allows a justice system to seek justice. He believes that moral norms are built into our legal system and while there are procedural aspects of law, it is not solely procedural.
Law, as defined by Fuller is a particular way of achieving social order by guiding human behavior according to rules. He created eight principles of legality to define whether or not a system counts as law. The eight principles are that laws should be general, laws should be known by the citizens, retroactive rulemaking should be minimized, laws should be understandable, laws should not be contradictory, laws should not require conduct beyond the abilities of those affected, laws should remain relative through time and laws should be congruent with their declared rule and their action.
He believes that these procedures in a legal system determine the morality of a law and without them a system would not be a legal system. These arguments have helped us create a more firm definition of a legal system because they look at how legal systems function, what their purpose is and how morality affects them. Each argument gives us a better understanding of what law is and how it impacts our lives. They also help us establish the difference between legal positivism and natural law. Arguments like these are still taking place today and these original
