Study Questions on Chs. 2-3 of The Concept of Law
Spend some time thinking about the merits of the Austinian theory under
which law consists of habitual obedience to general orders backed
by threats. For example, how does the theory explain how laws come
together in legal systems? How does it explain the plurality of
independent legal systems and revolutionary changes in legal systems?
How does it explain the difference between law and morality and between
law and the gunman's orders?
2) Is a virtue of the Austinian theory that the sovereign is legally unlimited?
3) Think of some of your own examples of laws that confer powers (as opposed to laws that command).
4) What is wrong with the view that nullity is the sanction for disobedience of a power-conferring law?
What is wrong with the Kelsenian view that power-conferring laws are
fragments of laws that command. Notice that there are two Kelsenian
theories that Hart discusses. Under the first, all laws are commands to
officials to sanction. Under the less extreme theory (on p. 37 and pp.
40-41), laws can be commands to private citizens.