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1 the command theory suggests that all laws emanate

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1 The command theory suggests that all laws emanate from the sovereign and are backed by penalties. 2 The notion of a sovereign is a power concept rather than a normative one, as the sovereign is the group who is habitually obeyed, not the group that ought to be obeyed. 3 Austin’s theory indicates that laws are only obeyed because of the fear of the consequences associated with non-compliance. That is to say that a member of society observes law because they are obliged to do so. 4 Hart calls this the external aspect of law, and admits that this is an accurate perception of law to an extent. 5 This holds particularly true in relation to the raft of criminal laws which deter lawbreaking via the threat of sanctions. 6 However, this theory fails to describe the higher order nature of some laws. 1 John Austin, The Province of Jurisprudence Determined (John Murray, 1832) 8-9. 2 Ibid 21. 3 Ibid 320. 4 Frederick Schauer, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010) 23 Ratio Juris 1, 4. 5 H L A Hart, The Concept of Law (Oxford University Press, 2 nd ed, 1994), cited in Scott Shapiro, ‘What is the Internal Point of View?’ (2006) 75 Fordham Law Review 1157, 1157. 6 H L A Hart, The Concept of Law (Oxford University Press, 2 nd ed, 1994) 27. See also Henry Hart Jr, ‘The Aims of the Criminal Law’ (1958) 23(3) Law and Contemporary Problems 401, 408.
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While some degree of coercion is essential for a legal system to function, Hart recognises that additional reasons explain why legal officials follow laws. 7 Officials feel that the law ought to be obeyed as a result of some intrinsic feeling about law. They obey laws without thinking about it, as they are under an obligation , rather than feeling obliged due to the fear of sanctions. 8 This obligation may stem from the social pressure associated with upholding the general standards of conduct within society (a custom), 9 or the bona fide belief that observance of law is a beneficial practice. With reference to the latter, consider the law about wearing a seatbelt in a vehicle. From a normative perspective, a legal official will use the restraining device as they ought to minimise harm suffered in a crash, not only to avoid being pulled over by a police officer. Consider Plato’s philosophical proposal of the ‘Ring of Gyges’. Plato raises the question whether an invisible person would continue to obey laws and standards of conduct when there is no fear of punishment for noncompliance. 10 Hart’s theory suggests that a legal official would continue to obey laws as they have internalised them as official standards of behaviour. 11 If society reached a point where the State no longer enforced law, Hart argues that legal officials will remain law abiding citizens. 12 From a practical perspective, if the State were to stop punishing people for running a red light, Hart would argue that on the vast majority of occasions drivers would continue to obey, as this is a fundamental social rule. Disobedience would result in logistical problems, causing society to spiral into anarchy. This demonstrates how law
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