Austin's Imperative Theory — and Hart's Demolition — KSLU Jurisprudence Notes
Austin’s Imperative Theory — and Hart’s Demolition
Austin: “Law is the command of the sovereign backed by a sanction.”
The three pillars: (1) command — an expression of the sovereign’s wish; (2) sovereign — a determinate superior habitually obeyed and obeying no one; (3) sanction — the evil that enforces obedience. Its merit is clarity: it separates law as it is from law as it ought to be.
H.L.A. Hart’s critique (The Concept of Law, 1961) dismantled each pillar:
| Austin says | Hart answers |
|---|---|
| Law = commands | Much law (contracts, wills, marriage) confers powers — it commands nothing |
| Sovereign obeys no one | Modern sovereigns are legally limited (constitutions) and electorates are not “determinate” |
| Obedience from habit | Law rests on an accepted rule of recognition, not mere habit |
| Sanction makes law | The “gunman writ large” cannot explain why officials feel obliged, not merely obligated |
Hart’s own account: law is the union of primary rules (imposing duties) and secondary rules (of recognition, change and adjudication) — the framework most modern systems actually fit.