Hart and Austin Together Again for the First Time: Coercive Enforcement and the Theory of Legal Obligation

Abstract

Though idea that first-order valid law creates legal obligations binding citizens is central to legal practice, positivists have had little to say about it since Hart rejected Austin's view that legal obligation could be explained entirely in terms of coercive commands, leaving positivism without a comprehensive theory of legal obligation. Although Hart did not have a fully worked-out theory of first-order legal obligation, he seemed pretty clearly to believe that requisite social pressure constituting a primary legal norm as legally obligatory - at least in modern municipal legal systems like ours - is availability of institutional coercive enforcement mechanisms. In distinguishing moral and legal obligation, Hart argues that the typical form of legal pressure may very well be said to consist in such threats [of physical punishment or unpleasant consequences] (CL 179, 180). In this essay, I attempt to build on this important suggestion and apply Hart's analysis of social obligation to describe content of concept of first-order legal obligation as it functions in ordinary talk and legal practice. Since, as a conceptual matter, our obligations make certain behaviors non-optional or mandatory, key problem in understanding concept of legal obligation as it applies to citizens is to explain sense in which relevant behaviors are made non-optional. I will argue that non-optionality of first-order legal obligation is best understood in modern municipal legal systems by reference to institutional coercive enforcement mechanisms.