Transcript of Hart - Concept of Law - Ch 2 (Summary of John Austin's Theory of Law)

You're in a bar fight and you say to the other person, "You say another word and I'm going to sock you or whatever. [Music] We didn't read the first chapter of the concept of law. We just read the second chapter and even we skipped part of the first section of the second chapter. But let me say something about the book. This first text that we're talking about in philosophy of law is called the concept of law by Herbert Lionel Adulus Hart. He was a legal theorist working mostly in Oxford in the middle of the 20th century. This book is the seinal work in philosophy of law in the last 150 years. Even though it's only 60 years old or so, if you go to law school and you take a course in philosophy of law or what a course that might be called general juristp prudence or analytic juristp prudence or legal theory, all of those can mean the same thing. You will definitely read this book. Probably all of it. definitely some of it. And so we've skipped the first chapter and we're just going to be talking about the second chapter. The second chapter is called laws, commands, and orders. It's very important to understand that in this chapter, Hart is not stating his own theory of law. He's stating the theory of law of some other guy named John Austin. Austin was a major figure in legal theory about a hundred years earlier than Hart and Austin's lectures uh which are called the province of juristprudence determined are poorly written and difficult to read and it's sort of standard practice in philosophy of law courses to just skip over Austin's own statement of his theory and just use parts statement of Austin's theory and that's what we get in this chapter. This chapter is a summary of Austin's theory. Then in the next two chapters, chapter three and chapter four of the concept of law, Hart is going to criticize this theory. He's going to demolish it. He's going to succeed in demolishing this theory. But before we can get started with what Austin's theory is, we need to say something about naturalism. Naturalism is the view that the only things that exist in the world are the things that natural science tells us exist. So protons, neutrons, electrons, the quarks that make them up, the molecules that those atoms compose, that's what exists and that's it. There are no ghosts. Uh there are no divine entities or anything like that. That's the naturalistic view. And there's a certain kind of more extreme version of naturalism that we're just going to call behaviorism. And for the purposes of theorizing, behaviorists, they not only think that ghosts are occult and spooky and there are no ghosts, the behaviorists think that ordinary mental states, private mental states, private states of your mind, your feelings and your hopes and your desires, the things that that aren't exhibited in your behavior, your outwardly observable behavior, those things are spooky, too. And they don't want their their scientific theories mentioning anything other than outwardly observable behavior. They don't want their theories to mention psychological states, private psychological states. This view behaviorism was very popular uh in psychology for example in uh early parts of the 20th century. And so actually at many universities you will sometimes still see psychology departments not called psychology but called things like behavioral science because it was thought that if psychology is going to be a serious science then it can't mention private mental states. It needs to mention publicly observable things the way that physics and chemistry do. And so they were only going to reference behavior in their theories. outwardly observable behavior. Now, Austin and uh this philosopher Jeremy Bentham uh Bentham who Austin kind of took most of his ideas from uh and Bentham didn't publish openly uh his ideas during his lifetime. Austin was the one publishing the stuff, but their ideas are very closely connected. Um Austin and Bentham weren't necessarily hardcore behaviorists. Uh or maybe they were. I don't really know and it doesn't really matter. What matters is this. The theory of law that we're going to get from Austin is fundamentally a behaviorist theory of law. This is the important point. So write this part down. We're going to get from Austin as summarized by Hart an explanation for the existence of legal systems that only ever mentions outwardly observable things like behavior. It's going to be a theory that's based on habits where habits are going to be understood as observable patterns of behavior. And it's going to be uh in reference to things like well commands and orders where orders are understood just to be sounds coming out of the mouths of individuals things like that. So there's also going to be mention of sanctions or punishments, but those are also going to be outwardly observable forms of behavior. Someone gets struck or they get imprisoned or something like that. There's going to be very little or no mention of psychological states, inner mental states. And that's going to be one of the pitfalls of the theory. And Hart is going to need to appeal to certain psychological states, uh, one in particular. Um, but we'll get to that later when we get to Hart's view. That happens in chapters five and six of this book. But we're still on chapter 2. Okay. Here's how this chapter proceeds. It starts by introducing a little scenario of a gunman. That is a guy with a gun who robs a bank. He shows up in the bank. He pulls out the gun and he says, "Put the money in the bag or I'm going to shoot you." or something like that. And what happens over the course of the chapter, or at least the second section of the chapter, which is really what we're going to talk mostly about. What happens over the course of the chapter, is that that scenario is tweaked or modified. You change the scenario a little bit here or there such that now it's no longer just one gunman uh giving an order and backing it up with the threat of violence. Now, it's a full-blown legal system. Or at least it's something that Austin and Bentham would have called a legal system. What's the point of this story? Like starting with a gunman story and changing the story bit by bit until it turns into a legal system or something like a legal system. What's the point of that? The point is this. The gunman scenario is described purely behavioristically. It's described purely in terms of things that would be acceptable to a certain kind of naturalist. And then we're going to check each each step. We're going to change the scenario and see if we've introduced anything that would be offensive to these folks. Anything other than just outwardly observable behavior. And the answer is going to be no. We never introduce anything like a private uh psychological mental state, right? Um we never introduce any lofty normative notions like duty or authority. And so what we get at the end is something that looks somewhat like a legal system, but we know we're sort of guaranteed that it's going to be behavioristically acceptable because we've built it up out of something that was behavioristically acceptable only by appeal to behavioristically acceptable additions along the way. So, we've got the gunman scenario, and we're going to go through the five modifications that Hart makes over the course of the chapter. Here's the first one. This is what Hart says. He says it on page 21. The standard form, even of a criminal statute, is general in two ways. It indicates a general type of conduct. That's the first way. and it applies to a general class of persons. Okay, what is this? What's going on? This is a way in which laws standardly differ from an order issued by a gunman who's robbing a bank or something like that, right? When the gunman goes into the bank and says, "Put the money in the bag or I'll shoot you." The first thing is that the conduct that the gunman is requiring, putting the money in the bag, is specific. It's a specific act to be performed at a specific time. The money going in the bag right now, putting the money in the bag right at this time. It's not a general type of conduct like generally paying taxes every April 15th or whatever. So the first point that Hart is making is that well we're going to need to modify this scenario so that the gunman is talking not about some specific instance of behavior, put the money in the bag now, but a general type of behavior. Pay taxes every April 15th. That's a general characterization of behavior. That's the first change that's included in this this first modification. And the second thing is that laws typically apply to a general class of persons. That is in the gunman scenario the order is being given to say one person or two people but the order is being given directly to those people. In the legal case laws sort of you know dutyimposing laws criminal statutes they apply to a whole general category of people a whole general class of people not just one person that you're giving the order to. Right? So you have to pay taxes on April 15th and it's anyone anyone over the age of 18 with an income over a certain amount or something like that. So that's the first modification, right? Modification number one is that the content of the orders or commands has to be general in these two ways. It has to be general in that it applies to a whole type of conduct and general in that it applies to uh a whole group of people. The the scenario is being modified, right? Um and there's going to be five ways in which the gunman scenario gets modified, but the scenario is not being made more general, right? It's not like because the gunman scenario, you might realize, is already a rather generic scenario. It's not like about a specific person who robbed a specific bank. We don't know which bank and what its street address was and who the robber was. The gunman scenario is already sort of a vague scenario. It's already sort of a general scenario. What's being made general is the content of the order, the thing that's ordered. That's what's being changed from specific to general in this first modification. And we're getting closer now. We've gotten one step closer to a legal system. We've changed the scenario so that well the order being given is more like a law that you would find in a established legal system. And notice also that we haven't offended our uh behaviorist principles. All we were talking about in the gunman scenario was the words of the gunman and the and pulling out the gun and that sort of thing, right? and and by changing the order, we've we're still just talking about behavior. It's just different sounds coming out of the mouth of the gunman. Then two pages later in the chapter, we get the second modification. Okay. Hart says disobedience is likely to be followed by the execution of the threat not only on the first promulgation of the order but continuously until the order is withdrawn or cancelled. Okay, promulgation of the order just means when the order was given. In order to understand what's going on here, we have to talk about how standard threats are fleeting. So say you're in a bar fight. Okay, you're in a bar fight and you say to the other person, "You say another word and I'm gonna suck you or whatever." Obviously, I know a lot about bar fights. Uh, well, here's the thing. Then the fight happens, maybe, or it doesn't happen. It doesn't matter. and that person goes home and they go to sleep and they wake up the next morning and then they say some words in their house or whatever, right? And then you don't beat them up because of it. Does that mean that you didn't follow through on your threat? You said that if they say another word, you're going to hit them, right? And then the next day they said some words and you didn't hit them, so you didn't follow through on your threat. No, of course not. Because like the threat only lasts for a little bit of time. Like the threat only applies in our current like pre-barfight scenario, right? The next day doesn't matter. So that's a difference between the order that the gunman gives which is in the bank says put the money in the bag that or I'll shoot you. That threat it only lasts for a few minutes or a few hours or something like that. Whereas laws they keep going. they persist. They apply continuously until the order is withdrawn or something like that. They can last for hundreds of years laws. So that's the second modification. It's got to be the case that the threat sticks around. The threat of sanction sticks around not just for a few minutes but uh well permanently or something like that until withdrawn. There needs to be a persistence of the of sanction of threat of sanction. It needs to it needs to apply in perpetuity. Okay. Moving on to the third modification. Hart says now talking about the modified gunman scenario that's getting even closer to a legal system. He says, "We must suppose that whatever the motive, most of the orders are more often obeyed by most of those affected." That is, in the gunman scenario, we didn't suppose one way or another whether the gunman's orders were followed. Uh, and the gunman's orders really only applied to a specific person as opposed to a general class of persons. But now that we're talking about a general class of persons, we need to add in the fact that most of the people follow most of the orders most of the time. That well on this Austinian view that needs to be true in order to have a legal system. And we can call that modification efficacy. That is the the orders or commands are efficacious. They they work. People follow them. Now we get to the fourth and fifth modifications. These are harder to understand and the quotes are a little bit more tangled. So, I'm going to have to erase this and we're going to get to work. Okay. So, this is the closest that Hart comes to explaining the fourth modification. And I'll write it up here so that we can see it better. uh Hart calls it supremacy or sometimes he calls it internal supremacy. That's the fourth modification. This, by the way, is going to be a modification not of the order given by the gunman, but a modification of the nature of the gunman or the nature of the person giving the order. uh we're going to get a fifth modification that's also going to be a modification of the person giving the order. And these two taken together, four and five, are going to uh turn the gunman into what Austin would call a sovereign. Okay, but that's getting ahead of ourselves a little bit. Let's figure out what internal supremacy is. And this is not the clearest statement of it, so we're going to take it slow. Within the territory of each country, there may be many different persons or bodies of persons giving general orders backed by threats and receiving habitual obedience. Okay. Uh let me note something here about well what it just said was there could be lots of folks giving orders and being habitually obeyed. The one thing to note first off is that by habit I maybe should have noted this when we talked about the third modification. The notion of habit being used by Austin and by Hart when Hart is summarizing Austin for us is not exactly the notion of habit that uh we might use ordinarily. Right? So when you think about a habit, if you're like me, you probably think about some pattern of behavior that you engage in thoughtlessly, right? So, you used to leave the lights on whenever you left the house and the electric bill was too much if you are the one in charge of paying your electric bill. And so, you had to try to remember every time you left the house to shut the lights before you walked out the door. But then after a while, you get into the habit of shutting the lights, which just means that you don't even have to think about it. When you head through that front door, your arm just swings and you shut the lights off without noticing that you're doing it even right without planning to do it. That's what happens when you get into the habit. That's not what we're talking about here. Back in modification number three. And here also when Hart on behalf of Austin is talking about a habit, um they're just talking about a regular pattern of behavior. It doesn't matter if that behavior is being engaged in very thoughtfully and with focus or if it's being engaged in, you know, thoughtlessly and habitually, right? Uh it doesn't matter. Either one counts as a habit for our purposes. It's just a pattern or it's just a regularity of behavior. Okay? So, the first point being made is that within some territory, there are lots of people who are giving orders like this. They're general. They stick around for a long time and they are habitually or regularly obeyed. There are lots of people doing that, right? But what makes one person internally supreme? Well, supremacy is going to turn out to be the fact that everyone in this territory, everyone inside the territory habitually obeys this person. Right? But we've got a sort of problem which is that there's lots of people in territories with legal systems that seem to be habitually obeyed. They're issuing orders and everyone is following those orders. Here's how Hart solves that problem. But we should distinguish some of these persons or bodies, for example, the LLC or a minister exercising what we term powers of delegated legislation. I don't know what the LLC is. I bet it's something in the United Kingdom government. We distinguish some of these persons or bodies as subordinate lawmakers in contrast to the queen in parliament who is supreme. Okay. So supremacy is having your orders be efficacious but in the particular way where there are others who are issuing orders. They're efficacious and they're subordinate to you. But what is that what is that relationship? that relationship of of the queen who is supreme, the queen in parliament who is supreme and the subordinate lawmakers. What what's going on there? That's explained in the next sentence. We can express this relationship, the relationship between the queen in parliament who is supreme and the uh subordinate lawmakers who are subordinate. We can express this relationship in the simple terminology of habits by saying that whereas the queen in parliament in making laws obeys no one habitually, she's not regularly obeying anyone. Right? Um the subordinate lawmakers keep within limits statutoily prescribed and so may be said in making law to be agents of the queen in parliament. that is the lawmakers are only making laws in the specific domains that they're allowed to make laws in, right? They're only issuing orders um having to do with the pH of mustard if they are in the mustard regulating branch of the government or whatever. Um I mean you should just in general understand the notion of a principle and an agent, right? Think about a sports agent, right? You have an athlete who's negotiating for a contract with a professional sports team. The athlete doesn't have to spend days and days and days in a conference room somewhere with the executives from the sports teams. The agent does that. An agent is someone who gets to act on behalf of that other person. And the other person is called the principal. So the the athlete is the principal. And when the agent goes into the room and says, "No, we're never going to accept that. we want more of this and more of that. We want more money up front and more whatever, whatever. That counts as if the athlete had said those things. And that's what makes the sport agent an agent of the athlete. And the same goes for all of these subordinate lawmakers, right? It might look like there's lots of folks giving orders and being habitually obeyed. The queen is supreme in the sense that all of these other lawmakers who are issuing orders are only issuing orders um on her behalf. She speaks as it were. The queen in parliament out of their mouths. So that's the fourth modification. The person issuing the orders, the gunman has to be habitually obeyed by everyone in the territory. That's internal supremacy. And now we get to the the final modification. So this is where we get the final modification to the gunman scenario. And just like modification number four, this one applies to the actual person giving the orders. And it's called independence or Hart sometimes calls it external independence. Here's what it is. The same negative characterization of the queen in Parliament as not habitually obeying the orders of others roughly defines the notion of independence. Requirement number four was that the person issuing the orders must be habitually obeyed by everyone inside of a territory. That's why it's internal. So everyone in the territory obeys this person's orders regularly. habitually in that sense that person is regularly obeyed and that person does not regularly obey anyone else whether it's inside the territory or without say that the queen of England or the queen in parliament the queen in combination with parliament or maybe just the parliament when they're acting on behalf of the queen or that sort of thing right say that the queen in parliament sometimes gets advice from the king of France or there's not a king of France anymore at this time but someone else right and sometimes the queen in parliament takes that advice and then does what she's told to do that doesn't mean that she loses her external independence but if she very regularly does it if she does it often enough to count as having a habit in this sense then she does lose her external independence on Austin's view so let's just recap real We had a gunman scenario. Gunman walks into a bank, takes out the gun, says, "Put the money in the bag or I'm going to shoot you." That's the scenario. Change this in five ways. And each one of these ways will be behavioristically acceptable. That is each one of these modifications won't invoke some spooky or mysterious psychological state. Right? The first modification is take the order and make it more general in two ways. Make it apply to a whole category of action and then make it apply to a whole category of people instead of a specific action to be done by a specific person. So that's the first modification. Okay, tweak. But that's still just behavior. It's still just different different orders being issued verbally. Modification number two, the threat has to stick around in perpetuity. That is, if anyone goes against the order, not just for the next few hours, but until the order is revoked or withdrawn, that behavior is going to be followed by more behavior, namely the sanction, the punishment. Modification number three is that most of the people most of the time have to mostly uh do what the order says that they have to do. There has to be a habit of obedience in that sense. And then well the two modifications of the uh of the the person issuing the orders are that that person has to be supreme. They have to be habitually obeyed by everyone within a territory. Even if those other people are themselves issuing orders, those other orders need to in the right way be be agential. They need to represent the orders or count as orders of that of that one supreme gunman. And then also the person issuing the orders has to not habitually obey anyone anywhere either inside the territory or without. After making all of these changes, the thought is supposed to be, oh, you know what? Now this kind of looks like a legal system and we've still stuck to uh you know the behaviorist limits of the theory. All we've mentioned are orders, threats, the sanctions that back up those threats and patterns of obedience or habits of obedience. Those are the only explanatory resources that have been made use of by Austin. Now, what's going to happen in the next two chapters, chapters three and four that come after chapter 2, is that Hart is going to tear this theory apart successfully. I'll just say he's going to rip this theory apart, and there's going to be all sorts of phenomena that obviously exist in legal systems, but that a theory like this that makes use of just these resources is never going to be able to explain. That's what happens in chapters three and chapters four. And then in chapters five and six, we're going to see what Hart's own theory is, which is going to be decidedly non-behavioristic. It's going to make appeal to a very special, very interesting private psychological mental state.