Hart, Austin, and the Concept of Legal Sanctions

Abstract

In 1961, H. L. A. Hart published The Concept of Law, his most extensive and systematic essay in general jurisprudence. Hart's book immediately received widespread critical attention. Today, The Concept of Law is generally regarded as an original and important work. Indeed, this is too cautious a claim: The Concept of Law has become an established classic. The core of Hart's argument is addressed to three related questions: What is a legal rule? What are the points of difference and similarity between law and morality? What is a legal system? This Note is concerned with Hart's answer to the last of these three questions, with his attempt, in The Concept of Law, to build up a coherent and satisfying picture of what a municipal legal system is. In the opening chapter of The Concept of Law, Hart states that the purpose of his book is "to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality as types of social phenomena." Whether Hart's "improved analysis" yields anything as precise and unequivocal as a definition of what a legal system is—indeed, whether such a definition is possible at all—have been much-disputed questions. Hart himself appears to have been somewhat skeptical in this regard. At one point, he even offers several reasons for believing that "nothing concise enough to be recognized as a definition could provide a satisfactory answer" to the question, "what is law?" Nevertheless, despite his own methodological reservations, Hart does, in fact, attempt to isolate and specify a set of "central elements" peculiar to legal systems, and in this way to distinguish law from those related social phenomena with which, in his view, it has been wrongly identified.