Hart points out that [Austin’s view that every rule is a general command] obliterates the distinction between being obliged to do something and being obligated to do it. If one is bound by a rule he is obligated, not merely obliged, to do what it provides, and therefore being bound by a rule must be different from being subject to an injury if one disobeys an order.
Evidence
We make an important distinction between law and even the general orders of a gangster. We feel that the law’s strictures-and its sanctions-are different in that they are obligatory in a way that the outlaw’s commands are not. Austin’s analysis has no place for any such distinction, because it defines an obligation as subjection to the threat of force, and so founds the authority of law entirely on the sovereign’s ability and will to harm those who disobey. Perhaps the distinction we make is illusory-perhaps our feelings of some special authority attaching to the law is based on religious hangover or another sort of mass self-deception. But Austin does not demonstrate this, and we are entitled to insist that an analysis of our concept of law either acknowledge and explain our attitudes, or show why they are mistaken. — Ronald M. Dworkin, The Model of Rules, 40 (
#corroborates, via linked claim)
Categorization
- XREF: connects to: In time, however, those who studied and tried to apply Austin’s model found it too simple. Many objections were raised, among which were two that seemed fundamental.; A rule differs from an order, among other ways, by being normative, by setting a standard of behavior that has a call on its subject beyond the threat that may enforce it. A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks. That is the difference between a valid law and the orders of a gunman.; Positivism has a few central and organizing propositions as its skeleton, and though not every philosopher who is called a positivist would subscribe to these in the way I present them, they do define the general position I want to examine. These key tenets may be stated as follows: (a) The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behavior will be punished or coerced by the public power. These special rules can be identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed. (+7 more)
Related
- A rule differs from an order, among other ways, by being normative, by setting a standard of behavior that has a call on its subject beyond the threat that may enforce it. A rule can never be… (similarity 0.88)
- Legal obligation differs from mere coercion by threat of force (similarity 0.85)
- Unlawful power is real, not a mere negatable possibility (similarity 0.83)
- Austin grounds legal obligation in habitual obedience to a sovereign plus sanction. (similarity 0.83)
- Normative obligation differs fundamentally from being threatened into compliance. (similarity 0.83)
- In time, however, those who studied and tried to apply Austin’s model found it too simple. Many objections were raised, among which were two that seemed fundamental. (similarity 0.83)
- Can we say that we have, in principle at least, the same reasons for meeting our legal obligations that we have for meeting our moral obligations? (similarity 0.81)
- Legal validity derives from normative authority, not from physical power alone. (similarity 0.79)
- So Hart offers a general theory of rules that does not make their authority depend upon the physical power of their authors. If we examine the way different rules come into being, he tells us, and… (similarity 0.78)
Broader Connections
- Legal obligation differs from mere coercion by threat of force
#corroborates(0.85) — Ronald M. Dworkin, The Model of Rules, 40