5.1.2 Key Characteristics of the Law
H.L.A. Hart provided some important clarifications to Austin’s view of the law as “an order backed by threats”, pointing out that not all rules have the status of law and not all coercion is legal. He clarified this point in chapter 2 of his book, The Concept of Law, with the illustration of a gunman’s victim being ordered to hand over a purse with the threat of being shot if he doesn’t comply – which is an example of coercion that is clearly against the law.
Hart identifies the following additional features which differentiate the law from the coercion used by the gunman:
● Its application is general: “In a modern state … its general laws extend to all persons within its territorial boundaries”.
● The law has an “enduring character”.
● It requires “a general habit of obedience”.
● The commands of the law are issued by those who have formally been given the authority to do so: they are exercising “powers of delegated legislation”.
The first three of these characteristics present challenges to the governance of a pluralist society which is undergoing change. This chapter examines some of the ways to reduce the potential problems.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition03/512a.htm