ABSTRACT
A thorough critique of Austin’s analysis is offered by Professor HLA Hart. Hart portrays the legal system as being one of rules rather than commands. For Hart, Austin’s jurisprudence is tainted by its overtly coercive nature, as exemplified in the command plus sanction portrayal of law. Austin has missed, according to Hart, an important dimension of law: the concept of a rule. Rules, for Hart, are distinguishable from commands in several significant respects. Legal rules may, as with the criminal law, lay down specific prohibitions, breach of which will be met with punishment. Nevertheless, there are laws which do not exhibit the characteristics of prohibition and sanction. Many rules of law confer the power on individuals and groups to act, but evince no element of coercion: rules of contract, of making wills, of entering into marriage, fall within this category. These rules Hart labels ‘power conferring rules’: rules which are permissive and the breach of which will result in a ‘nullity’, a concept which is difficult to conceptualise as an Austinian ‘sanction’.
