It is impossible to discover sovereign in a federal state. Primary rules are rules which require people to engage in or or abstain from a certain conduct. Yet, it is far more sophisticated than Hart suggests. In 1820 he had married Sarah Taylor, who as Sarah Taylor Austin became a successful editor and translator. Volume 4, pages 157—226 in , Dissertations and Discussions: Political, Philosophical, and Historical.
According to Austin, laws can best be interpreted as a type of command: an expressed desire that another party perform or refrain from performing a specific action, this expression accompanied by the threat of a clearly defined sanction or punishment if not obeyed. In some cases this consent was only tacit consent and no more than a fiction. In democratic system, it is not possible that one person commands. In a domestic legal system the rules of adjudication identify the persons who are to adjudicate and the procedure to be followed. The second obstacle to recognizing international law as law is the sovereignty of states. The scholarly focus on the General Assembly has blocked the view of international lawyers on legislative processes which have been taking place within the specialized agencies of the United Nations.
The rule of recognition can therefore not be valid or invalid but can only be accepted as the guiding standard in determining the validity of other rules. But this is not a necessary result. It neglects that legal obligations not only predict the imposition of a sanction but also justify it. According to positivism, law is a matter of what has been posited ordered, decided, practiced, tolerated, etc. Hart does not offer an in-depth analysis of the international law-making process. For a rule to be valid is to recognize it as passing all the tests provided by the rule of recognition.
Does public law not structurally resemble international law more than it does private or criminal law? Like Bentham, he sought to distinguish law from morals. But the fact of the matter is that he permits because he cannot do otherwise. For present purposes it is sufficient to point out that the criticism applies to municipal law in the same way as it applies to international law. Hence, morals hv always bn an integral part of law. Hart later describes a game that has an official scorer, in which case all other statements as to the score are irrelevant. The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law. However, structurally comparable deficits exist within municipal legal orders, to a varying degree and with varying intensity.
So Austin was the important theorist from positivist law. Hart sees a first indication of the lack of an international rule of recognition in the problems international lawyers have in formulating such a rule. As a result, there may be no obligation to obey them. His methodological approach does not imply the consequence that a legal system has closely to resemble a municipal legal order in form and structure. As MacIver points out physical force is not the essence but only differentia or criterion of the state. Therefore, a few preliminary remarks on the relevance of a jurisprudential encounter with international law in general and with Hart's approach to international law in particular seem in order and should precede an analysis of Hart's theory of international law.
The Concept of Law, 3rd ed. The traditionally tight relationship between legal positivism and voluntarist conceptions of international law has led many scholars to believe that positivism necessarily implies a voluntarist approach to international law. Hart's treatise on legal philosophy, originally published in 1961, stands on a timeline between the works of Austin in the 19th Century and the thoughts of Dworkin in the late 20th and 21st Centuries. There are seasons because the Earth's axis is tilted at 23. Violations of the law can be determined authoritatively in an ever increasing number of cases.
In light of the incremental development of regional and specialized regimes in international law, the question of the coherence and unity of international law receives increasing attention. Therefore, an inquiry into whether his objections against international law sustain seems necessary. The rules of international law had only to be accepted as standards of conduct and supported with appropriate forms of social pressure in order to be regarded as obligatory, binding, legal rules. But in that case he would by definition no longer be sovereign because he would habitually obey another sovereign. Hart , or speaking about the topic at length, but treating the issue as sharply separate from his theory of the nature of law.
Hart, nevertheless, rejects the conclusion that the absence of sanctions entails the absence of obligations in international law. During the same year, Austin published the barely noticed The Province of Jurisprudence Determined, a collection of his university lectures. Compared with the ideal type of the domestic legal order this diagnosis may seem accurate. According to Hart international law resembles, in form though not in content, a simple regime of primary rules. Indeed, this is too cautious a claim: The Concept of Law has become an established classic. It, therefore, is no law properly so called. This plurality of international law should be viewed not only as a defect but as an endemic feature of international law as a legal system.
Behind the legal sovereign in democracy or dictatorship or monarchy there is a political sovereign which consists of the public opinion, Press, Platform, Broadcasting, religion, culture and so many other known or unknown forces. A further source of doubt with regard to an international rule of recognition could be seen in the indeterminate character of the sources of international law. A sovereign is the person or persons to whom the bulk of a given society is in a habit of obedience but who himself renders no such obedience to anyone. Within the context of the municipal legal order Hart finds the remedy for these deficits in the secondary rules of recognition, change, and adjudication. This is the reason why elections are conducted after every five years for the House of Commons.
He was called to the Bar in 1818, but he took on few cases, and quit the practice of law in 1825. Hickes, 1700 ; both these works were often reedited. In the last section of Chapter X Hart turns to a closer analysis of the nature of international law. To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something. In conclusion, the international legal order encompasses mechanisms of law-making which transcend the image of a primitive social order as painted by Hart.