Hart on Legal Powers as Legal Competences

Abstract

This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

Keywords: H.L.A. Hart, legal positivism, John Austin, legal powers, power-conferring laws, Neil MacCormick, duty-imposing laws, legal competences, legal philosophy, command model of law