Hart, Holmes, Aquinas, and the Basis of Law
H. L. A. Hart introduces the concept of a “rule” as an improvement upon J. L. Austin’s “command.” A command occurs when one person orders another to do something and makes a credible threat of retaliation if the order is not obeyed. The law, according to Austin, is simply the set of commands the sovereign makes to its subjects. Austin, a positivist, believes that the morality and quality of the laws, being outside the framework of the command, do not reflect the laws’ legitimacy.
Hart criticizes Austin’s view for its lack of sophistication. He implies that the command theory is the equivalent of “might makes right”: since power is the only source of legitimacy, there is no difference between an armed robber and an armed police officer. According to Hart, there is a significant distinction between being “obliged” to follow a command and being “obligated” to follow it, and he devises the system of primary and secondary rules to embellish this observation.
According to the philosopher, law is the “union of primary and secondary rules.” Primary rules are the directives for human behavior which typically come to mind when we think of laws. If we only needed these, Austin’s command theory would suffice, but in fact secondary rules are address the shortcomings of uncertainty, stasis, and inefficiency (i.e. inequality, illegitimacy, inflexibility, and lack of law enforcement) which would plague a system made up of only primary rules. The three types of secondary rules are rules of recognition, which establish the legitimacy of the sovereign and equality under the law for citizens; rules of change, which detail how the sovereign can create or modify primary rules; and rules of adjudication, which establish law enforcement and criminal justice systems. If the majority of the people, including the authorities, obey the primary and secondary rules, then the legal system is valid. Hart’s argument is somewhat circular: which comes first, the secondary rules or the acceptance of the rule-makers? Nevertheless, it conforms in my opinion to the way the law actually works.
Oliver Wendell Homes seems to come closer to Austin’s views. In The Path of the Law, Holmes says that the law is a prediction of what the courts will do. While value judgments affect the creation of laws, values do not substantiate the legitimacy of laws. The law must apply not only to those who feel obligated to follow it but also to those who will follow it only to avoid punishment. Since the law is also effective for those with no moral fiber, it does not have implicit moral content.
Hart addresses Holmes’s point when he writes of the “internal” and “external” aspects of the law. They are basically in agreement that the law must account for the person who is only loyal to avoid external consequences. As Holmes and Hart both lie more on the positivist side of the legal spectrum, the two pieces do not conflict much ont the issue of morality. Their disagreement is over the metaphysical status of a law: is it a “rule” or a “prediction”? Holmes’s view is criticized because if applied universally, it would instruct judges to predict their own actions. This is most true with a body such as the Supreme Court which has no one to overrule it and thus no one to anticipate it. My biggest problem with Holmes’s view, though, is that while it has been promulgated for several decades now, it is still counterintuitive, even for parking violations, which are as devoid of moral content as any other edicts. I believe this is due to a tacit acceptance of rules of recognition: as long as our sovereigns are humans rather than computers, our laws will feel like rules.
Unlike Hart, who draws the legitimacy of laws for the recognition of its subjects, Thomas Aquinas ties the law to the universal, unchanging laws of God. To interpret him in a less theological way, law draws strength from its accordance with natural law, the commands of reason for the best way to live. A law that harms the people, whether intentionally or unintentionally, loses legitimacy. If there is no such objection, a man has a moral obligation to follow the law.
Aquinas’s view is dependent upon the existence of both reason and the common good, not to mention an omnipotent, omniscient, unchanging God. So Hart’s argument is safer for our deconstructionist era. I do believe in the same concepts Aquinas does, however, and I believe they are universal to all men. Thus, while I respect Hart’s view, I believe the Thomist philosophy is the most adequate. Without being circular, it provides rational arguments for both obedience and conscientious objection to the law.