HART'S CRITIQUE OP AUSTIN

Orders backed by threats

Hart approaches his account of Austins theory by indicating
that expressions in the imperative mood may have different
functions, such as to make a request, make a plea or give a
warning. However, these indicate only a few rough
discriminations, and are not of particular significance for Hart.
His main concern is with that most important use of the
imperative - where one person orders another to do something,
and indicates that some unpleasant consequences will follow
upon failure to comply. Although Hart makes the further
observation that one could distinguish between ordering and
giving an order, he again states that we need not here concern
ourselves with these subtleties. [7] As a matter of style, one
might question the value of introducing, within the space of one
page, two discriminations, which he then immediately
pronounces nugatory. They would probably have been regarded
by Austin as ingenious but useless refinements. However, the
only sort of imperative with which Hart is going to be concerned
is that of order, and he says in relation to this:
Although a suggestion of authority and deference to authority
may often attach to the words order and obedience, we shall
use the expressions orders backed by threats and coercive
orders to refer to orders which, like the gunmans, are
supported only by threats, and we shall use the words
obedience and obey to include compliance with such orders."
[8]

We must note several points in connection with this. In the

discussion so far, (on pages 18 and 19 of The Concept) Hart has
spoken of what people may / customarily / usually / normally /
characteristically / naturally say or do. However, we note here
that he has used the stipulative form we shall... to limit the
meaning of the words he uses, and indicates that they are not
being used in their more usual sense - obedience often
indicates authority, but it will not do so for Hart. Now there is
nothing strange or startling in this, for as we have seen it is a
central feature of Austins work. It would obviously be quite
wrong for us, in response to Harts further discussion, to object
that his analysis was faulty because he was using obedience in
an unusual way. Hart would rightly respond by saying that we
had missed the point - that as he had made his meaning clear, the
usual meaning was neither here nor there. I merely pause to
make the point that sauce for the goose is sauce for the gander.
For Hart to put forward the usual use of a word as an objection
to Austins stipulated use is, equally, neither here nor there, and
we shall, as Hart develops his position, frequently have occasion
to remind ourselves of this point.
So we know then that Hart is dealing with that class of terms
called IMPERATIVES - that he is concerned only with the subclass of imperatives called ORDERS, and the sub-class of orders
which are supported ONLY BY THREATS. The relevance of
this to Austin has already been indicated by Hart, and he is here
taking the opportunity to develop the point. When speaking of
the situation where a gunman orders his victim to hand over his
purse, and threatens to shoot if he refuses, he says:

To some it has seemed clear that in this situation where one

person gives another an order backed by threats, and, in this
sense of oblige, obliges him to comply, we have the essence of
law, or at least the key to the science of jurisprudence. This is
the starting-point of Austins analysis by which so much English
jurisprudence has been influenced. [9]
Commands
Having dealt with orders backed by threats Hart now wishes to
deal with commands and his treatment of the latter can be put
quite briefly. Hart says that:
the simple situation, where threats of harm and nothing else is
used to force obedience, is not the situation where we naturally
speak of commands [10]
His discussion of command is couched in terms of how it is
naturally / typically / characteristically used, and he refers to
five features which we shall call the five factors of command.
It has a very strong implication of a relatively stable hierarchical
organisation of men;
The commander has a position of pre-eminence (usually a
general, not a sergeant);
It need not be the case that there is a latent threat of harm in the
event of disobedience;
It is to exercise authority over men, not power to inflict harm;
It is primarily an appeal to authority, not fear.

Conclusion
Hart then states his conclusion as follows:
It is obvious that the idea of a command with its very strong
connexion with authority is much closer to that of law than our
gunmans order backed by threats, though the latter is an
instance of what Austin, ignoring the distinctions noticed in the
last paragraph, misleadingly calls a command [11]
This statement of Harts has three distinct steps which we must
clearly separate if we are to appreciate the force of his
conclusion.
Command is closer to law than order backed by threats.
Although Austin used the former, he actually meant the latter.
Austin overlooked the five factors of command.
Point (a) Is uncontestable.
Point (b) Is completely untenable.
It bears no relationship to Austins position whatever, and
although it moves away from Austins statement of his position,
which Hart stated he would do in certain circumstances, it is so
far from being an improvement on that position that Austin
would probably have regarded it as the veriest foolishness.
Because of the tremendous influence of Harts suggestion, I
cannot, unfortunately, dismiss it so lightly; I must examine
points (b) and (c) of Harts conclusion in detail, to see if there is
any trace of credibility in them. I must compare the gunmans
order backed by threats with what Austin actually said to see if

it is possible that Austin was referring to that, but mistakenly

called it a command, as Hart suggests. I will then move on to
see if it is possible that Austin overlooked the five factors of
command as Hart also suggests.
Point (b) considered in more detail
Although Austin used command, he actually meant gunmans
order or orders backed by threats.
Austin does say that a command is the expression of a wish
combined with the power to inflict an evil if it be not complied
with. [12] This expression is the closest I can find to Harts
suggestion. But merely to leave it like that is to ignore what
went before and what followed that statement. Austin precedes
that comment by saying that command is the key to the science
of jurisprudence and morals, therefore its meaning should be
analysed with precision, and he speaks apologetically of the
length he has to go to in order to do this. The only way in which
this claim of Harts might appear credible, is to overlook all of
the following aspects of Austins discussion.