Hart and Austin Together Again for the First Time: Coercive Enforcement and the Theory of Legal Obligation
Kenneth Einar Himma
University of Washington - School of Law
May 12, 2012
Wilfrid Waluchow and Stefan Sciaraffa, eds., THE NATURE OF LAW: CONTEMPORARY PERSPECTIVES, Oxford: Oxford University Press, 2013 Forthcoming
Though the idea that first-order valid law creates legal obligations binding citizens is central to legal practice, positivists have had little to say about it since Hart rejected Austin's view that legal obligation could be explained entirely in terms of coercive commands, leaving positivism without a comprehensive theory of legal obligation.
Although Hart did not have a fully worked-out theory of first-order legal obligation, he seemed pretty clearly to believe that the requisite social pressure constituting a primary legal norm as legally obligatory - at least in modern municipal legal systems like ours - is the availability of institutional coercive enforcement mechanisms. In distinguishing moral and legal obligation, Hart argues that "the typical form of legal pressure may very well be said to consist in such threats [of physical punishment or unpleasant consequences]" (CL 179, 180).
In this essay, I attempt to build on this important suggestion and apply Hart's analysis of social obligation to describe the content of the concept of first-order legal obligation as it functions in ordinary talk and legal practice. Since, as a conceptual matter, our obligations make certain behaviors non-optional or mandatory, the key problem in understanding the concept of legal obligation as it applies to citizens is to explain the sense in which the relevant behaviors are made non-optional. I will argue that the non-optionality of first-order legal obligation is best understood in modern municipal legal systems by reference to institutional coercive enforcement mechanisms.
Number of Pages in PDF File: 27
Keywords: positivism, Austin, Hart, obligation, validity, coercion, coercive enforcement, social obligationworking papers series
Date posted: May 23, 2005 ; Last revised: September 6, 2012
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