Legal Theories: Austin and Hart´s Theories

Austin purports that law is legally valid where it is issued by a someone (i.e. a Sovereign) who is habitually obeyed, with consequential sanctions if its subjects do not comply with it (“command theory”). Sanctions are key to his theory of validity as without them, commands would be no more than requests. This posited an antiseptic separation between law and morality (Kellogg 2007, p.-36).

While Austin’s theory is simple and easy to follow, it is unpersuasive insofar as it apperas to be an over-simplistic and inadequate account of the law. His theory exclusively focused on law in its vertical and duty-imposing guise, habitual obeyance and largely lacked the concept of rules (Schauer, 2009). Hart noted that habits are inadequate as it cannot confer rights and authority. Further, a brief oberservation of existing laws, besides criminal law, demonstrate a wide range of laws that do not fall within the command form. An example is found in contract law which grants people the rights to independently facilitate commercial transactions rather than commanding them to behave in a certain way. If we were to subscribe to Austin’s command theory, contract law will necessarily have to be characterized as telling contract parties what they must do to enter into a contract. However, this is convoluted and glosses over the important role of the law to not only regulate human conduct, but also to create powers for the citizen to engage in conceptually antecedent conduct (Schauer, 2009). Further, Austin’s theory of legal validity fails to account for the “internal” and normative aspect of legal obligations where people obey valid laws even without the fear of a sanction or threat of force (Hart, 1994, p. 79 - 84). Such a command theory is my...

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...ver, Holmes’s theory is not instructive on how to go about making these “prophecies” of law without any reference to explicit guidelines or guidelines, notwithstanding his proposition of referring to rather arbitrary factors such as the moral and political climate. As such, Holmes’s theory loses persuasiveness insofar as it does not provide certainty as to how valid law can be identified.

In conclusion, the theories that have been examined in this paper have proffered various ways in determining what makes a law valid. These theories are persuasive on varying levels, and hence are not perfectly conclusive on this point. However, an analysis of these theories have allowed me the appreciate the nuances between each theory, as well as appreciate the fact that legal theory is a lot more tolerant of conflicting theories as compared to other areas of legal study.