Hart - Concept of Law - Ch 3 (Attack on Austin's Theory #1)

This is a video lecture about the third chapter, entitled "The Variety of Laws", of HLA Hart's 1961 seminal book, The Concept of Law. In it, Hart lays out four types of laws that he claims cannot be explained in terms of orders backed by threats, and that therefore cannot be explained by John Austin's theory of law.
1) Power-Conferring Laws
2) Customary Laws
3) Self-Binding Laws
4) Complex & Unknown Laws
This lecture is part of a Philosophy of Law course.
Here is the lecture video about chapter 2 of The Concept of Law: • Hart - Concept of Law ...

[@kikineeks]

I genuinely can't explain how much you've helped me. Thank you so so much

[@marklilly9161]

1. Great series. One of the best philosophy explainers on YT. Thanks 2. Surprised you don't seem to know about common law, which is central to the US legal system: The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. 3. You wanted to know what Hart's LCC stood for. It is the London County Council, a body long since replaced and renamed several times. Best wishes from the UK.

[@FernandaLima-cf6dg]

Your didactics it's truly amazing. I've been struggling to learn this for quite a while now, and since I have a test in three days regarding this book, this video really came in handy. I wish we had more professors like you.

[@aimlessgun]

Regarding the idea that lawmakers not understanding a law makes it 'not an order': Wasn't Austin's theory supposed to be behaviorist? So the internal mental state of the gunman is completely ignored? 'Understanding' and 'desire' are internal mental states, thus should be ignored. All that matters is that the words of an order were said, the observable behavior. Thus there is no conflict between Austin and such laws.

[@danknfrshtv]

Settling into this series very comfortably. Thank you, Dr K.

[@klauscheung8235]

Eloquent Speaker! Def one of my fav lecturers.

[@keithslater4556]

You can explain the "Power confirming" type of laws in an Austinian way. A law that grants you the power to make a will if you are over 18 can be thought of as saying "You must respect the wishes expressed in a will that was created by someone over 18". More generally, granting a power to some class of people can be thought of as a general instruction to obey the commands of those people in the domain covered by the power being granted.

[@PaintPlastic]

I don't think the power-conferring laws example is convincing. Powers are essentially rights, and rights must create concurrent obligations, and those obligations are basically commands. So where we say a sovereign creates laws about wills, it's the general populace that's being commanded to respect the property allocation specified in that will - it's not the testator that's being commanded. As for self-binding laws, the example given of congresspeople having to pay taxes isn't a great one because they're being taxed in a different capacity, as private citizens. The state doesn't tax itself, nor does it diminish the sum of its own power by self-binding laws - it might move power around between different divisions of itself, but the sum of power stays the same.

[@tigerclothier1821]

Wish we had more enthusiasm like yours for law

[@nelnavas7134]

Your legal prowess is awesome Mr. Kaplan

[@saramalmir7036]

Thank you for sharing these videos. They are very helpful.🙏🏽

[@JacquelineWolf-vi4zu]

You are really good at this ! Thank you so much for sharing these lectures.

[@dianasokolova4754]

Really can't thank you enough, your videos are incredible and make the material so easy to understand :)

[@profjeffreykaplan]

So glad they are helpful. Please share them with anyone else who you think might find them useful.

[@celestemarker6822]

Love your way to explain! thanks for shearing this amazing content

[@mithrae4525]

Great video. For point #2, customary laws, I suspect in particular Hart may have been thinking of the common law system of England and its colonies. I gather that the civil law systems of much of the rest of the world often have their own ways of moderating legal statutes according to circumstance and custom, but it's more formalized in the case of common law (aka case law or judicial precedent). It contradicts Austin's model as described by Hart as described by Kaplan because the decisions which become binding law were not made by a superior/sovereign legislator, nor even according to the judges' own desires - in theory at least - but by interpretation and application of existing law under the particular circumstances often in light of the broader cultural or customary context. Many if not most landmark US Supreme Court cases could be described that way. For example Roe vs. Wade and subsequent SCOTUS abortion rulings theoretically could have been made at any time prior - it's not as if the constitutional rights to liberty, equality and security from undue government intervention (privacy) were anything new - but they became legal precedent and hence law from the 70s and not beforehand for a variety of reasons extending beyond the leanings or wishes of the judges themselves. (Not the least of which is potentially the failure of possible previous legal challenges to make their way up through the lower courts to be heard, but also issues such as advances in medical science, women's rights and so on.)

[@williamjenkins4913]

Customary laws and common law are two distinct counters to Austin. Other jurists have brought up points similar to your common law one. I dont know if I agree with that point though. To me common laws seems more a series of agents since at the end of the day the SCOTUS can still overrule all the lower courts and command them to disregard or enforce precedents.

[@pantelimon03]

​@@williamjenkins4913Can you explain why the number 3 in this video should be a counter against Austin? The command still exists but it just enforces it for everyone. Something like "I will do it, but you are obligated as well"

[@romee-elise]

Thank you. I finally understand Hart’s theories. We will be luckier students if you are the author of all our LLB textbooks. LexisNexis should contact you for publishing the textbooks easier to understand. I guess point 3 in 4 Types of Laws is a kind of administrative law maybe? I’m very new to these concepts and I might be wrong.

[@abhishek100091]

Comparing the book of hart with a publication house is disrespectful to the Hart

[@parheliaa]

You don't have to understand or wish to perform an action to classify something as an order. The most obvious example is in military. When a solider relays an order from somebody higher in the chain of command, he doesn't have to know why some action has to be done (or even he may think that the action is wrong). Or the order is in language which the relaying solider doesn't understand (or the order is coded with an unknown cipher), so which it will sound like a gibberish but still be a valid order to the intended target.

[@MarkConnely]

The frequent repetition is sometimes maddening, but I find if I am patient and just listen, those digressing explanations and reiterations help me to remember what Mr. Kaplan says.

[@nathoney894]

Amazingly well explained in terms that are not convoluted or confusing to students like me. Great content - the world could use more teachers like you.

[@sheikhaqibqadir3676]

you make my most difficult and boring assignment, my favorite one. thank you

[@danjixkrabix]

Thank you for your work, this really helped me

[@toshbel]

Hope to improve my grade by ~20%, basis your content. Many thanks.

[@profjeffreykaplan]

Good luck! Go for 25%!

[@bingyrock]

Thank you so much, you explain things so clearly! Also i'm just amazed that you're writing backwards??

[@profjeffreykaplan]

You're welcome. Thanks for the kind words. I am not writing backwards. Here is how I do it: kzbin.info/www/bejne/bJDHZWeYocaSfaM

[@williamjenkins4913]

It is super easy to explain power conferring laws by way of orders. Any law that confers power to one group is by nature refusing that power to everyone else. So just flip to it's inverse. The law is ordering anyone not in the category of "notary public" to not sign wills under threat of sanction. Someone that passes the bar exam is not obligated to practice law but someone that has not passed it is obligated to not practice law. Customary laws. When that person signed the custom into law they were enacting it. Before when it was just custom anyone that didnt care about social faux paus could have grazed their sheep anywhere without issue. Even if the sovereign did not like the law Austin only says that they must not follow others habitually so the occasional customary law does not counter Command Theory. "customary laws are positive laws fashioned by judicial legislation upon pre-existing customs. Now, till they become the grounds of judicial decisions upon cases and are clothed with legal sanctions by the sovereign one or number, the customs are merely rules set by opinions of the governed, and sanctioned or enforced morally."- John Austin Self Binding Laws. Austin acknowledged the notion that lawmaker as sovereign is distinct from lawmaker the person. Thus a lawmaker can create a law that binds himself as a citizen "A member of a sovereign assembly is the superior of the judge: the judge being bound by the law which proceeds from that sovereign body. But, in his character of citizen or subject, he is the inferior of the judge: the judge being the minister of the law, and armed with the power of enforcing it."-John Austin In the role of the sovereign the laws are not in fact self binding because the lawmaker can change the law making it more a self guideline. Complex Unknown Laws. Austin never said that the sovereign must understand the law only that its authority must come from his command. A king saying do what my court wizard just said is as valid a law as him saying do what I just said. Delegation is allowed.

[@BlessingsUsen2803]

At this point I'm lost for words, it's so explanatory. This is Jurisprudence for dummies.

[@anikkhan4887]

You are amazing! Wish you had videos on other Jurisprudence chapters, such as Marxism, liberism, feminism.

[@profjeffreykaplan]

me too! It will probably be a little while before I get a chance to make those. But I will work on it!

[@kensey007]

I wasn't very persuaded until you got to legislators not knowing what they are enacting.... That's a good one.

[@jenesiahutchinson5288]

Thank you very much.....from Trinidad

[@profjeffreykaplan]

You are welcome!

[@lawweekly9885]

Hi, will you be able to make videos on the rest of the chapters such as hart and international law, your videos are really good.

[@profjeffreykaplan]

Thank you. Hopefully I will get around to that in a semester or so.

[@jerryyu3776]

So good!!!!!!

[@profjeffreykaplan]

Thank you!

[@mmarook4223]

Youre a legend

[@alexeyyakobson2254]

As for point 1. Austin’s law can include definitions. If a guy with a gun says “don’t move” he can add what will be counted as a movement. E.g. a breath will not be counted as a movement or even a stir of a little finger. So, this definition can be reformulated as a power granted law: one can breath of stir a little finger but still remain an Austin’s law. The same goes for a will. Austin’s law forbids possessing any property without proper grounding, e.g. a will. Then we have a definition, what is considered as a proper will.

[@jaychaudhry6461]

Sir, pls make videos on Austin & Kelsen as well

[@breecyp]

I am having trouble with number 3. Couldn't the Austinians argue that the legislatures are "agents" acting for the "gunman" and that they are not binding themselves because it is not them who is "making" the law according to their theory (this is from what I understand from your video about chapter 2)?

[@kamogelocharmaine1124]

Explaining this with regards to the SA Constitutionalism or the UK one. We have separation of power doctrines, the legislature, judiciary and executive. They are in the same position in the law meaning, they are impartial and independent. This means when the legislature creates the law, they are binding on everyone including the executive and Judiciary. So I think he's trying to explain this in places or countries where it's only these people who are the state organs. Like not having a Queen in the internal supremacy like the one explained in the previous chapter.

[@gratitudeandlovee]

But even then, these laws are also binding on the Queen.

[@dennisgrumple7754]

@@kamogelocharmaine1124 so Is he saying that In Austin’s model the laws aren’t necessarily binding on the queen because she has supremacy but in modern legal systems this does not pan out to be true due to the modern separation of powers in the UK?

[@thesnowybanana2971]

A law that was never enacted before becoming law? If by enacted you mean written down, then sure, but that doesn't really do anything against John Austin's definition If by enacted, he means through some formal process made to be so, then sure, but that still doesn't do anything against Austin's definition, since laws can be created through informal processes, then spread through common use, with the "threat" being that if you did not conform to it, your social standing would suffer, or perhaps worse. Not necessarily through any formalized mechanism or anything, though it could, but even so. And if you want to say that it's the lack of that formal system of punishment, or organization, that makes it defeat Austin's definition, then Austin could easily counter by simply saying "well then it wasn't a law, it was simply a rule or custom, and it *became* law only when it was formalized and enforced by an organized power" as for a law not being an expression of someone's desire, while the person or persons whose desire the law reflects may not be easily identifiable, i would say I highly doubt that any rule or law exists that did not have at least one person that wanted it in place and then did something to put it in place prior. So I would say that that's simply a falsehood. and then to skip back to the power-conferring laws, well yes, you actually were "punished" in a sense for not formalizing your will, in so far as that you and your will were denied recognition by the society you found yourself in and denied the assurance of the state upholding your will after your passing. You could be "punished" even further by having the state enforce the exact *opposite* of what you actually wanted, since your will was nonbinding and other legally binding agreements were in place instead that ran counter to the will. Now, hypothetically, you could also have an informal or even nonexistent will, and be denied the recognition and support of the state in upholding the will, and everything still works out the exact way you wanted. In such an instance, the state didn't inflict some extra-penalty on you, and their denial of recognition didn't have an effect, but it still *denied* the recognition all the same. The punishment in this case is a denial of a positive right, as opposed to the violation of a negative right. Though you can even paint it as a violation of a negative right, if taxes are involved (they take your money by force, and promise you that they'll use it to uphold your wills, but then you don't make the will in the way they said, so they don't uphold it. The end result is they just took your money and you got nothing for it, thus violating a negative right, perhaps) and yes you can give a command to yourself, and when it is a group making the laws, it can be all the members of the group giving commands to each other. let us say an absolute monarch issues a decree that should anyone, including himself, defy an order from himself, then that person should be immediately killed by the nearest guard then he looks in a mirror and commands himself to, say, put the mirror down, then he doesn't then the nearest guard kills him the king gave an order to himself, he defied the order, and was punished with force, *by his own order* a silly example, maybe, but in that same way, legislatures can issue commands, laws, that fall even on themselves to follow and then finally laws that the lawmaker doesn't even know the meaning or contents of. Yes, that is still a command, even if they don't know the meaning of it. The command just isn't "do as I say," since they weren't the one's that wrote the law. The command is "do as the person that wrote the bill said." And you can give that command without ever having read the contents of that bill, and thus create a law.

[@jeffreylee1689]

May I know is Austin’s theory equal to legal positivism?

[@Gunsales1000]

Wouldn't equitable laws- and equity in general not fulfill your customary laws?

[@user-mo7ms2gu9o]

12:00 2nd law

[@J__C_]

Make vids on Kelsen & Austin too

[@lbitta]

does he write mirrored? Like if we are at this side of the glass, why the text comes out like that???

[@williamjenkins4913]

Check his playlists. He has a video explaining the setup.

[@tsenotanev]

awesome.... how does all this relate to the question of getting rid of all laws... like overcoming the conviction in the apparent necessity of coercion by laws for the functioning of society... just wondering ... put the bunny on the rag or i'll smooch you.... and greetings from bulgaria..

[@datrucksdavea2080]

Ty, could someone name the four types of laws?.

[@datrucksdavea2080]

I listen when. I'm driving so it's hard to keep it organized. Thank you!

[@parheliaa]

I suppose Freud could become interested how quickly an armed robbery was transformed into "pay taxes"

[@johnfitzgerald7082]

Listening to this discussion I cannot help but wonder whether the WWE's creative folks were making reference to the philosophy of law when they gave pro wrester Austin Tyler White his stage name "Austin Theory."

[@sinomirneja771]

I'm either too dumb or too smart. Send help! Like what do you mean though. 1) People are ordered to honor your will. You are ordered to follow instructions to describe your will. If you do not follow your orders you are punished by legislator ordering people to follow a default pattern which is not what you wanted. 2) A law is not one without the treat of punishment. If the custom had a treat of punishment behind them they became a law the first time it was decided how violators should be punished. Legislator might only be reflecting the will of the people when codifying the norm into a law. 3) I guess "one into another" in my head were not mutually exclusive people. It makes sense, but I'd still call that an order. 4) Do what the scientist tells you, is an order even if I do not have a clue what the scientist says. Or even if the order comes before the scientists command. Why do we need a separate category for this? This list is needlessly overpopulated!

[@marradka2584]

Can’t we say that for any type of law given by Hartman, that if it can be converted into a form that resembles a person with a gun giving orders, then then the type fails to disprove Austin. So, for any type given by Hartman, if it meets certain criteria then it resembles a person with a gun giving orders. These criteria are that, that we can imagine a scenario where: 1. There is a person with a gun who threatens 2. This person gives orders 3. The orders given are equivalent to a type of law that Hartman gives If all three criteria are met, then the type of law is equivalent to Austin’s definition. So, for Power Conferring laws: We say that in order to make a contract or a Will, then the person so desiring must get the person with the gun to say “Hey everyone! Listen up! Andy says that if he shot, then he wants Bettie, his favorite coworker to get his fancy watch. So, if I shoor Andy, then only Bettie can have his watch; or else I will shoot you.” For customary law: the person with the gun has to say “Is it true that Cindy always helps Debbie? Well, ok. Then Cindy can help Debbie; and anyone who complains about it will be shot.” And for laws that aren’t understood, suppose they are giving to order a pizza, and the person with the gun asks people what toppings they want, to which people call out “peperoncinni” (a type of pepper), and “escargot” (a type of meat), but the person with the gun declares “what is that? Peperoni and eggplant? Ok. Order the pizza. Everyone else stop talking or I’ll shoot you. No more discussion. Just order the pizza” I forget the 3rd type given and will put that in the comment to my comment below. But first let me revisit the first type, the power conferring rules. Another way to imagine it is that the first person giving orders has a very big gun. And then she wants to take a break or go to sleep, so she gives a smaller gun to one of her associates and declares “Now everyone! Listen to so and so while I am on break, or else when I get back then I will shoot you”, and says to their associate “Here’s a small gun. Make sure everyone behaves. But don’t make any major decisions without checking in with me first. Or else I will shoot you.” All of Hartman’s types of laws seem to me to be able to fit under Austin’s definition of laws.

[@marradka2584]

A Self Binding Law is the best challenge to Austin, but only by appearance. First, it is not that uncommon for a corrupt legislature to create rules that benefit themselves. This fact that legislation often benefits the class that makes the laws is the whole reason why things such as Rawl’s “veil of ignorance” is so compelling. And, the “default” that “the legislators are also bound by the laws” is in fact an assumption that in a modern civilized society, that the person with a gun will consider themselves a part of the community over which they rule. Historically it has been the oppositte, with an aristocratic class ruling over a mass of commoners. The historical reality more resembles a ships captain who rules, but can alway change his mind, so he is not bound by his rules unless he chooses each time to be so bound. But we might imagine an uncommon situation resembling mutiny or rebellion, where if a large enough group of unarmed people decide to oppose the person with the gun, then they can do so because numbers can overcome the might of a single gun. In this way, Austin’s theory still stands intact because the laws all still operate fundamentally from the principle of being backed by force and reducible to force backed commands.

[@bennettpalmer1741]

I'm not convinced by these examples. For instance "power granting laws". It seems to me like he made an attempt or two, saw that they didn't work, and simply assumed that no other attempt would work either. For the example of a will, I came up with "You must not carry out the distribution of property specified in a will, unless that will meets the following criteria: blah blah blah." It is, of course, not illegal at all to make a non-binding will. I could write down a will on a napkin, and no one will arrest me for it. But if someone tries to take that napkin to the government and insist that they get my money because of it, that won't work. Of course, I could attempt to make a truly convincing fake will, at which point I would run afoul of forgery laws, not anything to do with a will. In either instance, the content of the law is not "you are permitted to do something if you wish" but rather "you must not do something" From a more conceptual level, I'm not sure the idea of a "power granting law" even makes sense. It seems to me like the legal framework can not give us the capacity to do things that we could not in principle do anyway. To go back to the will example, imagine living in a society with no laws whatsoever. Am I capable of writing down what I want done with my property, and giving it to someone and asking them to do it? And can that person then take those instructions and carry them out? The answer to both questions is obviously yes. Now, in a society without laws, of course, I'm not guaranteed to get what I want. That person I give my will to might just ignore me, after all. Or they might attempt to carry out my will, only to be stopped by some other person. But we do in fact possess the power, at least in principle, to do those things. What does the legal framework do for this situation? Well, firstly, it turns to the person I gave the will to, and forces them to carry it out, at threat of punishment if they don't. And it turns to other people who might try to interfere, and forces them to not interfere, at threat of punishment if they do so. The government isn't "giving anyone power" rather, it's taking away power from others, which creates the illusion of giving someone power, without ever actually doing so. Another example I think doesn't work is the idea of laws that the legislators don't understand. This seems to run into a problem that it starts by not accepting behaviorism, but Austin's theory does demand we use behaviorism. "A command that the person giving it doesn't understand" requires the consideration of the internal, private mental state of the orderer, namely their comprehension of their actions, which behaviorism does not allow us to consider. It only permits us to look at the actual physical actions themselves. This example, therefore, essentially assumes laws do not follow behaviorism, and uses that as evidence that laws don't follow behaviorism. I also have a problem with the example of "self-binding laws" as a problem with Austin's view. For the much simpler reason that it doesn't actually seem like a problem at all. Sure, it might seem a little silly to give a command to yourself, but you can absolutely do it. It's actually not all that uncommon, really. How often have you thought something along the lines of "I have to do this homework before playing video games"? You're essentially telling yourself "If you don't do homework, you will be punished by not being permitted to play video games". Again, it seems a bit strange to think of it in terms of giving an order to yourself, but it doesn't seem evidently contradictory or impossible. As far as customary laws are concerned, I would argue they (at some point, at least) meet all the criteria. They are general commands, given to general types of people. They are persistent, lasting indefinitely until retracted. Most people generally obey them most of the time. Though they might not have a specific person who "initially creates the law", that doesn't seem to be the criteria, only that they are "given by" someone with internal supremacy and external independence. So, even if everyone was already doing it, and no one in particular "invented" the idea, as soon as that someone with those characteristics announces that they are now enforcing that command, such as a legislative body putting it into their new constitution, it then meets all the characteristics to be a perfectly legitimate Austinian law. Much like the self binding laws, this is a bit unusual and maybe unintuitive, but it doesn't seem to actually be a contradiction.

[@johnmichaelcule8423]

Making wills, forming partnerships and marrying are things people do and will do whether the state gets involved or not. Rulers find it convenient to describe parameters for those activities and offer the protection of their courts to those who carry out the procedures in a way they approve of. Now lots, and lots and lots of such transactions never come to the attention of the ruler's courts. People form and break patnerships all the time and lots of wills are just rubber stamped by the state. Which is fine. But try forming a marriage when you're already married or writing a contract that enforces slavery or defrauds someone and you've committed a crime. It may never be noticed by the state (who knows how many offences never attract any official attention?) but the crime is there just waiting to be prosecuted. 'Power-confering' doesn't really work here. Just because a law goes back before time immemorial and no one has been given credit for its creation doesn't mean that no one originated it and originally ordered it. That someone could be a collective. And yes, there are plenty of customs that don't have a clear justification. Self binding laws can happen with a simple dictatorship. The dictator, king, whatever can proclaim that he will do or not do some thing. Only his honour binds him, his repuatation and we know how fragile that safeguard is. In a modern legal system there are better safeguards against such hypocrisy and dishonour: mostly the fact that all power is not concentrated in one place and there are people within and without the government whose task it is to watch the watchmen. I doubt that most monarchs understood the details of everything they signed. (They may not have been able to read.) But they believed that they were good for their power and the continued prosperity of their realm. That's the intent however misguided the decision. (The gunman holding up the bank probably doesn't know what he's getting himself into either.)

[@sumaiyanishi5583]

Please use subtitles