Hart Vs John Austin

John Austin and H.L.A. Hart offer differing analyses of obligation/duty and its connection to sanctions, however H.L.A. Hart provides superior reasoning in his analysis versus John Austin. While John Austin is able to provide an analysis of obligation and its connection to sanctions, his arguments are insubstantial. Instead, Hart develops a sophisticated and detailed description of the connection and fills in the gaps where Austin’s account lacks. This paper will analyze both philosophers’ accounts of obligation and sanction and how each relates to one another. To begin, it is necessary to briefly describe, in general terms, the positivist view of the nature of law. Since Austin and Hart are both positivists, it is vital to have an understanding

Imperative moods can be through request, plea, warning, or ordering, with ordering being the most imperative. Only warning and order imply a sanction. Hart refers to orders as ‘orders backed by threats’ and ‘coercive orders’ and ‘obedience’ and ‘obey’ to signify compliance. He makes this distinction because Austin uses the term ‘command,’ which Hart does not consider appropriate to the situation where ‘command’ is naturally spoken: in military contexts and situations where there is a strong, stable, hierarchal organization. Hart states that a sanction is not necessarily latent within a command; a command is to exercise authority over someone while demanding respect, not to inflict some harm. Additionally, an obligation does not make you vulnerable to a sanction, but rather failing to fulfill an obligation justifies a sanction. In certain situations, however, command may be combined with orders backed by threats (Hart, 2012, p. 19). Hart goes on to state that orders backed by threats do two things: 1. Indicate a type of conduct to be followed and 2. Apply to a general class of people that are expected to be aware such conduct applies to them and there is an expectation to follow it. The distinction is made that rule-guided behavior is different from commands, as Austin calls them, because laws are general in whom they apply and commands are particular, implying face-to-face form of communication (Hart, 2012). Hart’s analysis gives reason to believe that, perhaps, Austin did, in fact, improperly use the term ‘command’ and inappropriately link it to ‘obligation’ and