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II.LAWS, COMMANDS AND ORDERS

I.VARIETIES OF IMPERATIVES

In order to advance such a legal theory, Hart starts off by analyzing the simple notion of law
as orders backed up by threats. He analyzes such notion keeping in mind the theory
propounded by Austin with regards law as commands and habits.

Orders are basically commands, or imperatives, where one person expresses a wish that
another person should do or abstain from doing something and this which is expressed with
the intention that the person addressed should conform to the wish expressed.1 However,
Hart acknowledges the fact that there is a need to separate an order, definitively and
linguistically, from those which may also contain attributes of such command or imperative.
Examples of such are requests, pleas, or warnings where in varieties of social situation we use
such imperative forms, which in turn blur the lines where one form ends and the other
begins. Hart tries to provide a solution by looking at the imperative form used in the case of
a robber where its distinctive feature in making use of an order, and not merely a request or
plea, is that it is given to secure compliance by threatening to do something which a normal
man would regard as harmful or unpleasant.2

One may think of such order as one which is intertwined with a system of hierarchy,
authority and deference due to the influence of Austin when he talks about law as a
command.3 Typically, one would not wholly agree that the situation involving a command
would merely entail threats of harm and nothing else to force obedience as there are more
natural situations in the use of command that either would not involve any threat of harm or
would involve something more than a threat to enforce obedience. Hart argues that such idea
of a command entails a strong connection to authority and is characteristically to exercise

1 The Concept of Law. HLA. Hart. Page 18

2 Ibid. Page 18-19
3 Ibid. Page 20
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authority over men, not power to inflict harm, and though it may be combined with the
threats of harm, a command is primarily an appeal not to fear but to respect for authority. 4
However, if one would be bringing in the concept of command to our development of a legal
theory then such a search may end in disarray as the element of authority that comes with it
has been a concept which Hart describes as one of the obstacles in the path of any easy
explanation of what law is5. Therefore, when Hart uses the term order or coercive
orders in analyzing the expression orders backed by threats, they refer to orders that are
supported only by threats, with obedience referring to compliance with such orders. The
reason is because by limiting ourselves to such an idea of the gunman/robber situation,
which Austin also used in his analysis, we liberate ourselves from the element of authority
which is obscure and in need of much explanation.6 Following for such an idea is where Hart
builds up the idea of law.

II.LAW AS COERCIVE ORDERS

Building up from such idea of the gunman/robber situation, Hart starts to add essential
elements or characteristics to the simple model of gunman situation to resemble the
standard way in which the law functions or reproduce the characteristics of law. The first
element which he adds to legal control, or law as coercive orders, is that of generality to
which Hart expounds as it indicates a general type of conduct and applies to a general class
of persons who are expected to see that it applies to them and to comply it.7 Thus, Legal
control is therefore primarily, though not exclusively, control by directions which are in a
double sense general.8 The added element is an upgrade from the simple situation of the
robber since such a situation would entail the need of multiple officials of the State giving
orders face to face to every other individual which is simply impossible. Instead, the added
element of generality in legal control makes the simple situation resemble that of criminal

4 Ibid. Page 20
5 Ibid. Page 20
6 Ibid. Page 20
7 Ibid. Page 21
8 Ibid. Page 21
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statutes, the type of law similar to an order backed by threats, with the official individuated
face-to-face directions having a secondary place where they ensure compliance or punish
disobedience if the primary general directions are not obeyed.9 Of course, the range of
persons affected may vary with the different legal systems and even different laws but in any
modern state Hart argues that it is normally understood that in the absence of special
indications widening or narrowing the class, its general laws extend to all persons within its
territorial boundaries.10

The first element is where Harts legal theory also diverges from that of the legal positivism
propounded by Austin, where Hart shows that such an element is key in better
understanding the misgivings of the general positivist theory. One example would be how
jurists, such as Austin himself, sometimes speak of laws as being addressed, which would
resemble a face-to-face situation. Although Hart admits that ordering people to do things is
a form of communication and does entail actually addressing them, a difference must be
understood between making laws and ordering people to do things since the former would
be speaking or publication (or promulgation), while the latter on the laws application.11
Thus, Hart contends,

laws may be complete as laws before this is done [promulgation], and even if it is not done at all.
In the absence of special rules to the contrary, laws are validly made even if those affected are left to
find out for themselves what laws have been made and who are affected thereby. What is usually
intended by those who speak of laws being 'addressed' to certain persons, is that these are the
persons to whom the particular law. applies, i.e. whom it requires to behave in certain ways. If we
use the word 'addressed' here we may both fail to notice an important difference between the
making of a law and giving a face-to-face order, and we may confuse the two distinct questions: 'To
whom does the law apply?' and 'To whom has it been published?'12

9 As Hart explains, Even in a complex large society, like that of a modern state, there are occasions when an
official, face to face with an individual, orders him to do something. A policeman orders a particular motorist
to stop or a particular beggar to move on. But these simple situations are not, and could not be, the standard
way in which law functions, if only because no society could support the number of officials necessary to secure
that every member of the society was officially and separately informed of every act which he was required to
do. Ibid. Page 20-21
10 Ibid. Page 21
11 In this respect making laws differs from ordering people to do things, and we must allow for this difference

in using this simple idea as a model for law. It may indeed be desirable that laws should as soon as may be after
they are made, be brought to the attention of those to whom they apply. Ibid. Page 22
12 Ibid. Page 22
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Another element, according to Hart, which needs to be added to the gunman situation were
to be a plausible model of a situation where there is law is one which accounts for the
obedience factor of the law.13 True, that obedience is explained in the gunman situation
because of a sort ascendancy or superiority concept, however when we talk about laws we
simply do not talk about having such obedience or having such ascendancy or superiority for
a limited amount of time, rather there is a standing or persistent characteristic when we talk
about obedience generated by law.14 Thus, the next element, following from Austin, would
be a general habit of obedience which, as Hart notes as Austin, is like many other aspects
of law that is an essentially vague or imprecise notion. The motive behind such an element
may be explained by a general belief that disobedience would likely be followed by the
execution of the threat continuously for every violation up until such order is withdrawn.
However, general habit of obedience cannot be fully explained by simply a general belief
in the continuing likelihood of the execution of the threat as other factors may also be at play
independent of the fear of the threat such as co-operate[ion] in the execution of the threats
on those who disobeyed.15 Thus, despite the fact that such an element is a vague, it is
important to be added in our development of the legal theory since such element emphasizes
a crucial distinction between laws and the simple case of the gunmans order. To wit,
Mere temporary ascendancy of one person over another is naturally thought of as the polar opposite
of law, with its relatively enduring and settled character, and, indeed, in most legal systems to
exercise such short-term coercive power as the gunman has would constitute a criminal offence. 16

However, Hart still expressed his reservation by pointing out that It remains indeed to be
seen whether this simple, though admittedly vague, notion of general habitual obedience to
general orders backed by threats is really enough to reproduce the settled character and
continuity which legal systems possess.17 Nevertheless, such additions would make the
simple situation of the gunman closely approximate a penal statute enacted by the legislature
of a modern state, which Hart regards as the base form where other varieties of law merely
just complicate or disguise.18

Lastly, before moving on the discussion, Hart talks about the person who gives such orders to
cap the analysis of reproducing the features of even a penal statute in the constructed model
of general orders generally obeyed. He highlights the need to reproduce the concept of

13 Ibid. Page 24
14 Ibid. Page 22-23
15 Ibid. Page 23
16 Ibid. Page 24
17 Ibid. Page 24
18 Hart explains, the concept of general orders backed by threats given by one generally obeyed, which we

have constructed by successive additions to the simple situation of the gunman case, plainly approximates
closer to a penal statute enacted by the legislature of a modern state than to any other variety of law. For there
are types of law which seem prima facie very unlike such penal statutes, and we shall have later to consider the
claim that these other varieties of law also, in spite of appearances to the contrary, are really just complicated
or disguised versions of this same form. Ibid. Page 24
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supremacy within its territory and independence of other systems present in the legal system
of a modern state in the simple model being developed.19 However, before adding such
concepts, some qualifications must be made by first distinguishing between persons or
bodies as subordinate lawmakers with a supreme lawmaker within a territory giving general
orders backed by threats and receiving habitual obedience which would entail the
establishment of what Hart calls a hierarchy of supreme and subordinate elements with
the supreme element obeying no one habitually for the concept of supremacy.20 Moreover,
the concept of independence must be understood as the lack of an obligation to obey the laws
of other territories which would be used when speaking of the separate legal systems of
different countries.21

To summarize the section Hart ends with the following which would embody the starting
idea for his general theory of law to guide us in answering what is law?,

On this simple account of the matter, which we shall later have to examine critically, there must,
wherever there is a legal system, be some persons or body of persons issuing general orders backed
by threats which are generally obeyed, and it must be generally believed that these threats are likely
to be implemented in the event of disobedience. This person or body must be internally supreme
and externally independent. If, following Austin, we call such a supreme and independent person or
body of persons the sovereign, the laws of any country will be the general orders backed by threats
which are issued either by the sovereign or subordinates in obedience to the sovereign. 22

19 Ibid. Page 24
20 Ibid. Page 25
21 An example is provided by Hart when he explains that the same negative characterization of the Queen in

Parliament, as not habitually obeying the orders of others, roughly defines the notion of independence which
we use in speaking of the separate legal systems of different countries. The supreme legislature of the Soviet
Union is not in the habit of obeying the Queen in Parliament, and whatever the latter enacted about Soviet
affairs (though it would constitute part of the law of England) would not form part of the law of the USSR.
Ibid. Page 25
22 Ibid. Page 25