Law Is the Command of the Sovereign: H. L. A. Hart Reconsidered

• Author: Andrew Stumpff Morrison
• DOI: http://doi.org/10.1111/raju.12133
• Published date: 01 September 2016
• Date: 01 September 2016

Law Is the Command of the Sovereign:

H. L. A. Hart Reconsidered

ANDREW STUMPFF MORRISON*

Abstract. This article presents a critical reevaluation of the thesis—closely associated

with H. L. A. Hart, and central to the views of most recent legal philosophers—that

the idea of state coercion is not logically essential to the definition oflaw. The author

argues that even laws governing contracts must ultimately be understood as

“commands of the sovereign, backed by force.” This follows in part from recognition

that the “sovereign,” defined rigorously, at the highest level of abstraction, is that

person or entity identified by reference to game theory and the philosophical idea of

“convention” as the source of signals with which the subject population has become

effectively locked,as a group, into conformity.

1. Introduction

Few recent legal philosophers regard a “command” of the state, backed by force, as

an accurate or even a helpful characterization of a law. The view that power—coer-

cion—is irrelevant to defining “what law is” has held a dominant position

1

in

Anglo-American legal jurisprudence for over fifty years.

This settled viewpoint would surely startle many people in the street, who if you

surprised them with the question “What is law?” might be expected to respond

somewhat along the lines of: “It’s a thing where if you do X or don’t do Y, the

police will throw you in jail.” The force-is-irrelevant conclusion would also have

startled every legal philosopher in history through the middle of the nineteenth

century, and many through the first part of the twentieth. But academic orthodoxy

it has been; and the idea has served, furthermore, as the necessary effective starting

point for a number of increasingly attenuated (though highly charged)

* I wishto thank Amy Kuras, Simon Blackburn,Brian Tamanaha, Martin Osborne,Robert Axel-

rod, Robert J. Aumann, James Fearon, MarkSchwimmer, Theodore St. Antoine,Howard Brom-

berg, Richard D. Friedman, and Sonja Starr, as well as anonymous reviewers on behalf of Ratio

Juris, for comments on an earlier draft (with all or part of which some of the foregoing vehe-

mently disagreed), and Seth Quidachay-Swan and Danny Lawderof the University of Michigan

Law Library,for research assistance. I am also grateful to FrederickSchauer for permitting me to

review an advancedraft of his book The Force of Law (Schauer2015).

1

The degree of consensus is striking.See, e.g., Christie 1968, 650 n. 6, and sources cited therein;

Schauer 2010a,1–2.

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Ratio Juris. Vol. 29 No. 3 September 2016 (364–384)

philosophical debates, controversies, and theses, of which the emergent consequen-

ces over the last fifty years have been—in the law schools, if nowhere else—

remarkable.

More recently the stirrings of partial reassessment have begun to manifest them-

selves. Writers such as Ekow Yankah and, especially, Frederick Schauer, have ques-

tioned whether legal philosophy’s complete dismissal of coercion can really be

justified, suggesting among other things that even if it is not an essential defini-

tional condition of law, nonetheless, because all the legal systems of which we are

aware actually do involve state coercion, coercion certainly seems at least highly

relevant for jurisprudence.

I contend that these challenges to the prevailing view are too weak; that in fact

state coercion is necessary as a matter of definition to the concept of law; and that

the arguments to the contrary—today associated most closely with H. L. A. Hart—

that have formed the basis of most recent legal philosophy have, from the start,

been logically and foundationally unsound.

2. Commands Backed by Force

The following briefly recites some of the background required to appreciate how

we came to be where we are. For a more complete historical recounting the reader

is directed to Chapter 2 of Professor Schauer’s recent book, The Force of Law (Scha-

uer 2015).

The idea that a law is not a “command backed by force”—that such an assertion

is hopelessly crude and antiquated

2

—dates back at least to the late 1800s (see Scha-

uer 2015, 25), having gathered momentum in subsequent decades (e.g., H€

agerstr€

om

1953, 34; Pound 1945, 415–6). It reached hegemonic status, however, with the post-

war writings of Herbert Lionel Adolphus Hart of the University of Oxford, perhaps

the most prominent legal philosopher of the last half of the last century.

Hart rejected the views of earlier philosophers such as Jeremy Bentham and John

Austin. Writing in the 1770s, Bentham had been concerned to bring clarity to the

mist-enshrouded world of natural law and arbitrary taxonomy that had descended

from the Middle Ages to William Blackstone, Bentham’s conventionally authorita-

tive contemporary. Bentham argued that no one can be under a legal obligation

without the threat of punishment. Indeed that threat is, he said, what constitutes

“obligation”—and therefore wrong is synonymous with punishable (Bentham 1977,

182–6, 184). Furthermore, Bentham (ibid., 260) declared that to be “authoritative” a

decree must come from the sovereign. Fifty years later, Austin sought more care-

fully and exhaustively to enumerate essentially the same point of view as Ben-

tham’s. Austin (1885, 346–7) said “Every law is a direct or circuitous command”;

and “every command imposes an obligation.” What does it mean for a person to

be under an “obligation”? It means, said Austin (ibid., 452–4, 510), to be “liable to

the evil of a sanction which he wants to avoid. This is what is meant by obligation

[...]. A sanction is a conditional evil [...] which he will incur if he violates the

obligation.” Moreover “[e]ither directly or remotely, the sovereign, or supreme leg-

islator, is the author of all law, and all laws are derived from the same source.”

2

“Command theories of law and legal obligation have passed from sophisticated juris-

prudence” (Postema2001, 495).

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