HART OR AUSTIN: LEGAL POSITIVISM OR RULE OF THE SOVEREIGN?
HART OR AUSTIN: LEGAL POSITIVISM OR RULE OF THE SOVEREIGN? N EIL M AHONEY I.
INTRODUCTION
John Austin’s command theory of law could be considered to be outdated at the time of its development, given the history of English law. The formation of the Magna Carta placed functional limitations on the authority and power of the King as early as 1215, by placing law above the King.1 When Austin’s legal viewpoint is applied to Australia, it fails to recognise the validity of traditional indigenous laws due to the lack of an obvious sovereign authority in those cultures.2 H.L.A. Hart improves on the legal positivist theory of law, where the role of the sovereign is reduced, and in some cases is eliminated, and the role that obligation plays on the observance of laws is emphasised.3 Hart states, the difference between mere social customs, and laws that contain secondary rules to develop and adjudicate law, are functional differences between primitive and modern society.4 When applied to the situation in Australia, particularly to indigenous rights, traditional law and the legal fiction of ‘terra nullius’, Hart’s view of legal positivism is a much better fit, as it allows recognition of traditional laws and customs as a modern system of laws, and allows the integration of these laws and customs into Australian common law.5
II.
ON THE SOVEREIGN
Austin states that the law derives from authority, and that the ultimate authority is the sovereign, who is typified by the following characteristics: 1. is a determinate human superior either as individual or group;6 2. is habitually obeyed by the majority of the members of society;7 3. is not in the habit of obedience to others;8
1
Magna Carta 1297 (UK) Mabo and Others v State of Queensland (No.2) (1992) 175 CLR 1, 32-34, [33]-[34] (Brennan J); W Blackstone, Commentaries on the Laws of England: Of the Rights of Persons (1765) (A Facsimile of the First Edition of 1765-1769, 1979) vol 1 (Oxford University Press, 15th ed, 1982), 104; Ulla Secher, ‘The High Court and Recognition of Native Title: Distinguishing Between the Doctrines of Terra Nullius and 'Desert and Uncultivated’ (2007) 11(1) University of Western Sydney Law Review 1, 2-3. 3 Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 54. 4 Ibid 58–63. 5 H.LA. Hart, The Concept of Law (Clarendon Press, 2nd ed, 1994) 56, 252-253. 6 Ratnapala (n 3) 46. 7 Ibid. 8 Ibid. 2
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