From Bentham to Hart: Dynamics of Development of Juspositivism Key Ideas in the English-Speaking World (XIX - XXI Centuries)

Korzhenyak Anastasia Mikhailovna ORCID: 0000-0002-7162-2785 Postgraduate Student at the Department of International Law, Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation 76 Vernadsky Avenue, Moscow, 119454, Russia mihkor@gmail.com Other publications by this author

Introduction

The methodological basis of the concepts of legal positivism in England should be considered the concept proposed by David Hume, which implies the differentiation of the spheres of "due" and "being" and asserts only the field of "being" as an object of scientific research ^{[1, p. 17]}. It is important to note that D. Hume disputed S. Clark's position in the treatise "Reasoning about the unchangeable duties imposed by natural religion" (1706), who considered it possible to "deduce the original duties imposed by morality from the necessary and eternal reason and proportionality of things" ^{[2, p. 62]}. Nevertheless, Hume adhered to the point of view that the basis of any judgments about what is due lies "in a feeling", and not "in an object" (act) ^{[2, p. 62]}: the censure of misconduct is accompanied by an inner sense of condemnation, which affects the inner world of a person and cannot be rationally realized using categories truths and misconceptions ^{[3, p. 677]}. For this reason, D. Hume is convinced that due cannot be logically deduced from existence, therefore, the "facts of due" cannot be the object of rational introspection and self-knowledge ^{[3, pp. 617-618]}. As I.N. Gryazin notes, this thesis marked the beginning of the formation of "the unity of the entire positivist line of jurisprudence" ^{[4, p. 43]}.

The first ideological prerequisites of early legal positivism in England

It should be emphasized that the English philosopher Jeremy Bentham pointed out two goals of the book on jurisprudence: 1) the definition of what is a law ("a book on explanatory ("expository") jurisprudence"); 2) the definition of what a law should be ("a book on critical ("censorial") jurisprudence, or a book on the art of legislation") ^{[5, p. 301]}. The founder of the school of analytical jurisprudence, John Austin, drew a strict distinction between the theoretical science of jurisprudence ("the science of jurisprudence"), which studies positive law, and the applied science of legislation ("the science of legislation"), which develops the principles by which positive law is evaluated ^{[6, pp. 77, 206-207]}.

The theoretical basis of the "first" legal positivism in England was largely laid down by the political and legal teachings of T. Hobbes, in which it is possible to identify some common features with the legal concepts formulated by I. Bentham, namely: 1) the nature of law is based on empirically acquired knowledge; 2) the necessary quality of usefulness of knowledge about the nature of man and society, contributing to the improvement of human well-being and their achievement of happiness; 3) the individual human nature, characterized and driven by selfishness and the desire for pleasure, acts as a fundamental link in the teaching of English legal philosophers about positive law (attraction and aversion – in Hobbes ^{[7, p. 239]}, suffering and pleasure – in Bentham ^{[5, p. 1; 8, p. 4]}).

Moreover, English thinkers define the concept of law by formulating general characteristics peculiar to it. Thus, in Leviathan, T. Hobbes emphasized that the law is an order given by a "statesman", which obliges all who must obey it, and reflects the will of the sovereign through a rule expressed orally or in writing, prescribing to perform any action or refrain from doing it ^{[9, p. 182]}. In the work "On Laws in General" (1782), I. Bentham defines the law as the "will" of the sovereign, which is obligatory for everyone and is aimed at the onset of certain consequences that serve as an incentive for its observance ^{[10, p. 1]}. Thus, it seems logical that both T. Hobbes and I. Bentham characterize the law as having the properties of imperativeness and compulsion due to the fact that it comes from the will of the sovereign. In addition, they emphasize the impersonality of the law, that is, the absence of its focus on a specific identified subject. The fundamental feature uniting the early concepts of legal positivism in England is the denial of the probability of the existence of natural law, stemming from nature and independent of subjective judgments ^{[11, p. 264; 12, pp. 3-8]}.

In John Austin's teaching, "law in the proper sense" means "rules established by one intelligent being for another intelligent being" ^{[13, p. 18; 6, pp. 83-84]}, which includes both "laws established by God for his human creatures, and laws established by people themselves for people" ^{[13, p. 18-19; 6, p. 84]}. Thus, Austin believes that laws that originate from God are equivalent to natural law. At the same time, he classifies the laws established by people into two categories: 1) the laws established by political authorities, who are the highest persons in an independent political society, and 2) the rules of positive morality ^{[14, p. 37]}. Every positive law ("posited law, given its position law") in an independent political society is established by the political power of the sovereign, which can be embodied in a specific individual or be of a collective nature. Sovereignty is based on the fact that most of society is accustomed to obey a certain person who is the bearer of sovereign power, while the bearer of power himself, having no superior over him, is not accustomed to obey anyone ^{[6, pp. 306-307]}. Accordingly, according to Austin, law can be defined as a set of commands, or orders, emanating from the sovereign and backed by a sanction to achieve the desired effect. At the same time, the law serves as an example of behavior for managers and representatives of the judiciary, as well as a warning for those who commit actions contrary to these commands or orders. Thus, the idea is conveyed that a sanction will follow, that is, a warning about responsibility ^{[6, pp. 91-93]}. A. B. Didikin notes that Austin's theory of law arose during radical changes in the structure of British society, the strengthening of a liberal bias, and the reform of public authorities, including the system of administration of justice ^{[15, pp. 23-39]}. The key terms of Austin's theory are "command", "sanction", "duty", "sovereign" ^{[16, p. 227]}.

On the contrary, the declaratory concept of common law by M. Hale and W. Blackston, reflecting the peculiarities of the consciousness of English lawyers, was based on the objective nature of the common law of England, which exists independently of the opinions of individuals, including judges. In "Commentaries on the Laws of England" (1765-1769), W. Blackston noted that the role of a judge is only to establish and manifest the law, but not in its formulation, not in rulemaking ^{[17, p. 327]}. However, I. Bentham strongly disagreed with the widespread justification of the judicial precedent based on the doctrine of M. Hale and W. Blackston, known as declaratory. Moreover, the thinker expresses an extremely negative attitude towards the system of judicial precedents, calling it a "conspiracy of lawyers against the people." He believes that judges and lawyers have a direct interest in making the law as irrational as possible ^{[18, p. 7]}. In this regard, the initiative for the comprehensive codification of English law, developed by Bentham, provided for a fundamental and weighty restriction of the power of lawyers, who, according to the philosopher's draft, were supposed to apply the law, and not interpret the obscure content of "common law" ^{[19, p. 22]}. J. Austin believes that due to the absence of intervention by the sovereign in the process of dispute resolution by judges or the cancellation of their rulings, the sovereign authorizes such activities through his "silent command" ^{[20, p. 297; 21, p. 44]}. Consequently, Austin was forced to come up with a legal construction of the "tacit consent" of the sovereign to the exercise of judicial power and to the established judicial practice. The creation of such a fiction has become necessary because it is impossible in any other way to reconcile the action of case law with the concept of law based on the "command" approach.

In our opinion, I. Bentham's bold and innovative desire for a radical transformation of the common law system ^{[11, p. 186-212]} by replacing, on the one hand, the "dog law" formed by judges with a comprehensive codification, and on the other – the nominal, imaginary essence of "law" with a real, authentic essence The "law" ^{[22, p. 7]} inevitably failed. This was due to the deep commitment of English lawyers to the judgments and concepts entrenched in their professional consciousness. For many centuries, the main figure in the legal system of England was a judge who performed not only the role of a law enforcer, but was also the real creator of law. By the way, it was the idea of law as a tradition of judicial decisions, evolving along with the historical development of British society, that closely enveloped the professional consciousness of English lawyers. These traditional considerations were reflected in the legal doctrine of John William Salmond, a lawyer, civil servant and judge from New Zealand, who will be discussed in more detail later ^[23].

The Legal Positivism of John Austin (1790-1859)

First of all, it is necessary to focus on the consideration of the main postulates of the legal doctrine of John Austin (1790-1859), who, being a follower of Jeremy Bentham, became the founder of classical legal positivism. His cross-cutting idea is that law is a set of commands, or orders, emanating from the sovereign and backed by a sanction. At the same time, the law serves as a model of behavior for managers and judges, as well as a warning for those who commit illegal actions, that is, contrary to these commands or orders. Thus, the law makes it possible to realize the alleged responsibility. (See for more information about John Austin's bibliography, the contents of the treatise "Definition of the field of jurisprudence", about the reaction to the book "Definition of the field of jurisprudence" and its criticism: ^{[24, pp. 9-35]}). After the Second World War, such an old method became unacceptable, so G.L.A. Hart made some changes and argued that the law was not a sovereign decree, but rather represented a "common conviction" that could be expressed through "secondary rules" fully regulating the actions taken. Hart considers these "secondary rules" as requiring verification and having experienced confirmation ^{[4, p. 119; 25, p. 176]}. "Secondary rules" are understood as "rules about rules" that provide an opportunity "to perform actions that not only lead to physical movements or changes, but also to the creation or modification of duties or obligations" ^{[26, pp. 85-86]}. (See also: Kraevsky A. A. Pure Doctrine of Hans Law Kelsen and Modern Legal Positivism: Dissertation of ... Candidate of Law: 12.00.01 / Krayevsky Arseny Alexandrovich; [Place of protection: Institute of State and Law of the Russian Academy of Sciences]. – St. Petersburg, 2014. – p. 91).

Undoubtedly, John Austin played a central role in the development of analytical jurisprudence. First of all, his unique concept of jurisprudence ("general jurisprudence"), the "theory of commands" (or as it is commonly called in philosophical and legal doctrine - the "command theory of law") should be particularly noted. (In our opinion, "this name is due to a somewhat inaccurate literal translation of the term "command theory of law". The term "command" in English has not only the meaning of "command" (which, rather, tends to be used in other semantic contexts and yet is inappropriate in this study, since it is a kind of "tracing paper" from English), but also "command", "order" (which is the most acceptable for use in the context under study)") ^{[27, p. 61]}. Austin defined positive law as the command of the sovereign, developed an original concept of sovereignty, clearly separated law from morality, harshly criticized the doctrine of natural law and human rights, and also understood the concept of freedom in a peculiar way. He was a proponent of the codification of legislation and the rule of law, classified laws into those related to things ("the law of things") and to persons ("the law of persons") ^{[28, pp. 1-13]}.

The theory of J. Austin's point is that laws are a kind of commands ("commands"). Austin supports his reasoning with examples that take the structure of a tree as a basis. So, he often starts with the root concept, and then divides it into branches until he has defined the concept that he wanted to analyze. For example, two branches depart from the root concept of "expression of desire": requests-demands and commands. Although they are grammatically similar, they differ in that commands are accompanied by sanctions. Accordingly, laws are considered by John Austin as one of the sub-branches, or varieties, of commands ("commands"). It is interesting to note that Austin used the term "law" to describe various phenomena, such as legal norms, religious dogmas, moral rules and natural laws ^{[15, p. 31]}. Let us emphasize once again: Austin defines law as "a rule established for the guidance of an intelligent being by an intelligent being who has authority over him," which includes both "laws established by God for his human creatures and laws established by people themselves for people" ^{[13, pp. 18-19; 6, p. 83-84]}.

According to Austin, the command consists of three parts: 1) the one from whom the command comes wants the addressee of the command to do something; 2) the one who gives the command expresses this desire to the addressee of the command; 3) there is a sanction for non-fulfillment of the desire of the person giving the command. In particular, for example, the instructions do not satisfy the first and third conditions, so they are not commands, which will be a problem for Austin if a significant part of the legal system resembles instructions more than commands.

J. Austin argued that three things logically presuppose the existence of each other: command, duty and sanction. Austin's definition of the concept of "duty" (or "obligation") differs, at least, from the usual understanding of moral duties (or obligations). The threat of a sanction is usually neither a necessary nor a sufficient condition for a moral obligation to arise: for example, a person may be obliged to repay a debt, even if no one threatens to harm him if he does not pay.

Given how Austin defines "duty," the presence of a threat is a necessary and sufficient condition for the existence of a duty. If legal obligations are more similar to Austin's definition of obligation, then Austin's theory is appropriate, if they are more similar to the understanding of moral obligations from the point of view of common sense, then a number of problems will arise in Austin's theory. The internal problem of Austin's theory is related to the issue of weak sanctions: that is, laws that are rarely enforced, or States that are too ineffective to authoritatively and effectively enforce their laws. Austin says that any threat of sanction, no matter how weak it may be, is good enough to make the expression of desire a command, and thus the law will be considered valid provided that it is issued by the sovereign: "The magnitude of the possible evil and the magnitude of the risk of incurring it are not relevant to the issue under consideration" ^{[6, pp. 90-91]}.

There are laws that provide for penalties that clearly do not motivate them to be regularly and strictly observed (for example, laws containing traffic rules). For example, according to the law, people are obliged to comply with the speed limit, but still Austin's understanding of the concept of "duty" as something that a person is obliged to do under threat ^{[6, pp. 88-89]} raises doubts about whether such a definition entails a similar conclusion.

According to Austin, governments cannot be bound by laws, at least as far as the sovereign is concerned. Laws are commands (or orders) given by the sovereign, and commands are necessarily addressed to someone else, so the sovereign himself cannot be guided by commands. Nevertheless, if examples of such parts of the law are found that actually apply to sovereigns, then this will also create a problem for Austin's theory. It should also be remembered that elements of government other than the sovereign can be bound by laws, even according to Austin's theory: only the sovereign is above the law ^{[29, pp. 484-487]}.

An interesting question is what is the position of the judges who create the "law developed by the judges". Austin believes that when judges rely on principles that are not in the laws, for example, "no one can benefit from their own offenses," they perform a law-making function; others believe that these principles are part of something they call "customary law" and that judges interpret this customary law, not create law. Austin argues that judges receive their powers to perform a law-making function from the sovereign ^{[6, pp. 108, 273]}. In theory, this could mean that the subjects of the sovereign are ordered to obey the judges.

As Austin himself explains, the name of his theory "legal positivism" means that laws exist "by virtue of position" ^{[6, pp. 84-85]}. Roughly speaking, if a command is given by someone who is able to make a law, then it is a law (provided that it meets other conditions in order to be a law). If it does not come from a person who has the right to make a law, then it is not a law.

Hart's theory is also called "legal positivism" because Hart shares the view that the way to identify laws is to trace their source. But at the same time, Hart is considered the main critic of Austin. The key difference between their versions of legal positivism is that Austin argues that laws are commands (or orders), while Hart argues that laws are rules (or norms) ^{[30, pp. 1174-1177]}.

Austin's narrative suffers a little from an excess of details, which can lead to losing the essence of what he wants to convey to the reader. Therefore, we consider it advisable to reproduce here concisely and clearly the content of the course of lectures by J. Austin.

The key terms of Austin's theory are "command", "sanction", "duty", "sovereign" ^{[16, p. 227]}. In lecture I, Austin puts forward his main claim that the law is a kind of command. He also states that commands include threats of force and that obligations are to be threatened. As mentioned above, Austin's law defines as follows: "The Law <...> it can be said that this is a rule established for the guidance of a rational being who has power over him" ^{[6, pp. 83-84]}. Austin then lists what should be called laws according to this definition, and what should not be called laws because they do not correspond to the definition. After that, Austin argues that laws are commands: "Every law or rule <...> is a command. Or rather, the laws and rules, which should be called so in the proper sense of the word, are a kind of commands" ^{[6, p. 21]}. Analyzing the concept of "command", Austin concludes that "the ideas or concepts covered by the term "command" are as follows: 1) a desire or aspiration conceived by a rational being for another rational being to do something or refrain from acting; 2) an evil that should come from the first and which should be suffered by the second if the latter does not fulfill this desire; 3) an expression or hint of desire in words or other signs" ^{[6, p. 88]}. In addition, Austin argues that commands, duties and sanctions are logically equivalent ^{[6, p. 89]}, that duties do not depend on the effectiveness of the sanction and that remuneration cannot be a sanction ^{[6, p. 89-99]}.

Austin believes that the laws are general in nature ^{[6, pp. 214-215]}, but this is generally a generally accepted statement about the law, the meaning of which Austin offers his own special interpretation. He distinguishes between two kinds of commands: 1) laws (or rules) and 2) point-based, timed to a specific purpose (or specific) commands. So, in what sense do laws have a general character when they are opposed to specific laws? Austin argues that laws are only those commands that belong to the general category of actions ^{[6, pp. 173, 242-243]}. He disagrees with Blackston's claim that laws should apply to people in general. For example, the parliament may adopt laws that regulate the actions of only those who hold a certain public position ^{[6, p. 98]}.

It is usually said that laws are addressed by superiors to inferiors, but Austin offers his own interpretation using the theory of commands. This, however, does not apply to differences in rank, degree of wealth or virtue: what is relevant in this case is only power, the possession of authority. The term "superiority" means power: the power to inflict evil or pain on others and force them, through fear of this evil, to change their behavior in accordance with their desires. That is, the one who can oblige another to fulfill his desires surpasses him as much as possible: the side that is vulnerable to impending evil is to the same extent inferior ("inferior")" ^{[6, p. 426]}.

There are three types of laws that do not fit into the theory of commands – laws that are not commands ("imperatives"), namely: legislative acts that 1) clarify laws, 2) repeal laws, or 3) establish natural (moral) obligations, that is, obligations that are not enforceable ^{[6, pp. 263, 345]}. Austin, however, believes that these are minor cases.

Austin examines two cases that seem incompatible with his theory to show that they do not present genuine problems. First, laws that seem to confer rights without responsibilities (Austin argues that rights are always accompanied by responsibilities). Secondly, customary law (Austin argues that custom becomes law only if its observance is enforced by the state) ^{[6, pp. 105-109]}.

Lecture VI "Definitions of the field of Jurisprudence" by John Austin is devoted to the definition of the sovereign, that is, the supreme authority that makes laws. A sovereign is a natural or legal person with two qualities: 1) the "bulk" of the members of society "have the habit" of obeying the commands of the sovereign; 2) the sovereign does not have the habit of obeying other human beings (unlike the habit of obeying God). Most of this section consists of examples that Austin uses to illustrate this statement ^{[6, pp. 26, 274-436]}.

In our opinion, after reading the work of J. There is a feeling, giving serious grounds for doubt, that Austin operates exclusively with the term "law" ("a/the law"), but in different meanings: both in the narrow sense of a normative legal act, and in a broader sense, implying a system of rules (that is, in the close modern meaning of the concept of "law").

The Legal Ideas of John William Salmond

Returning to a more detailed consideration of the teachings of the New Zealand lawyer J. W. Salmon, we focus the reader's attention on the fact that it would be unreasonable to conclude that this particular jurist began to study a significant part of important concepts in the positivist project of G.L.A. Hart, from his criticism of Austin's command theory and the idea of sovereignty to his idea of the rule of recognition ^{[1, pp. 76-96, 112-115; 31, p. 77]}. In particular, the similarity of Hart's supreme rule, which establishes criteria for determining valid norms in the legal system, can be found in the term "ultimate legal principles" by Salmond, although Hart rejects this thesis, considering it insufficiently developed ^{[32, p. 25]}. J. Salmond reveals the concept of "law" as a system of norms and principles that the state recognizes and applies in the administration of justice, each rule sanctioned by the state is expressed in judicial practice ^{[33, pp. 12, 88]}.

In addition, Salmond criticizes Austin for his lack of attention to the ethical significance of legal norms and an attempt to isolate this in a separate aspect from the very concept of law as a whole ^{[15, pp. 30, 37-39]}. According to Salmond, because of this one-sided approach, the imperative theory is defective and non-working. The New Zealand jurist points out the inconsistency of such a strong simplification by excluding all elements from the concept of "law", except for coercion, which does not allow us to take into account the relationship between law and justice, especially in the process of judicial review of cases in accordance with the law. "Law is an ideal combination of competence and power, coupled with justice on the part of the state" ^{[33, p. 55]}. Salmond suggests that, ideally, law should coincide with justice, although in practice this is not always achievable. Therefore, he equates "courts acting according to the norms of common law" ("courts of law") to "courts of justice" ("courts of justice"), which is why they also received this name ^{[33, pp. 55-56]}. Interestingly, Salmond refers the concepts of "law", "offense" and "duty" to the spheres of both law and morality, reinforcing this thesis by the fact that in many foreign languages "terms equivalent to "law", for example, "j us" (Latin), "droit" (French.), "das R echt" (German), "diritto" (Italian)", have both ethical and legal connotations (semantic argument) ^{[34, pp. 108-109]}. This fact refutes the imperative theory, which considers law solely as a command of the state and loses its usefulness, especially when the term "law" has the meaning of "justice" even from the point of view of philology ^{[33, pp. 56-57]}. In this context, ethics becomes an integral component of law, considered as a means of ensuring justice ^{[35, S. 79-81]}.

The development of English legal positivism was also reflected in a change in the understanding of the content of positive law. Salmond specifically notes: The very fact that State justice is an integral consequence of law does not mean that every legal principle can be expressed in an imperative form. This form is taken not only by the norms of law, which create legal obligations. Nevertheless, even these norms do not take into account the entire essential nature of law, which goes beyond the framework of imperative theory. Some legal principles take the form of permission and confer freedoms rather than duties. Examples of such principles are: 1) procedural rules; 2) permissive norms ("for example, the legal norm that witchcraft or heresy is not a crime, or that damage caused by competition in trade cannot be the basis of a claim"); 3) norms for the application and interpretation of other legal norms ^{[33, pp. 57-59]}. The New Zealand jurist confirms his disagreement with the authors, who present non-mandatory legal norms as orders to judges, by the fact that in some cases the performance of judicial functions is carried out by the representative of the legislature himself. Consequently, then procedural norms cannot be forcibly applied to the judiciary, but they still retain the status of legal norms, "the legal nature of which is a consequence of the fact that they are actually observed in the administration of justice, and not because the judiciary is bound by legal sanctions to comply with them" ^{[33, pp. 59]}.

The legal doctrine of J. For the first time in the Anglo-Saxon tradition of uspositivism, Salmond shifts the emphasis from sovereign power (which is done by I. Bentham and J. Austin) on the practice of courts as the basis of law ^{[36, p. 163]}. The functioning of law is based not on the compulsory indication of the sovereign, but on norms and principles that are recognized by the community of judges and confirmed by their practice ^{[37, p. 23]}. It is justifiably believed that it was Salmond who contributed to the development of the social thesis of law as a fact of public life ^{[38, p. 198]}. According to the New Zealand lawyer, law is a multi-level set of norms and principles that have not only an imperative, but also a permissive nature. He concludes that Austin's theory of commands is unable to explain the existence of various types of legislation, such as permissive rules, procedural rules, including rules of procedure, etc. ^{[39, pp. 98-106]}.

The Legal Doctrine of William Jethro Brown as the Evolution of Legal Positivism

In addition to J. W. Salmond, critical arguments regarding the "command concept" of J. They were formulated at the end of the XIX century by W. A. Watt in the work "Outline of the Philosophy of Law" (Watt W. A. "Outline of Legal Philosophy") and later systematized by the Australian lawyer William Jethro Brown (1868-1930) in 1906 in the excursus E "Austin's Theory of Law as an edition of lectures I, V and VI "Jurisprudence Austin's "Essay on the Use of Research in the field of jurisprudence" by Austin with critical remarks and excursions" ^{[40, pp. 331-354; 34, pp. 127-152]}.

Brown condemns J. Austin for maintaining two misconceptions: 1) an attempt to clothe any rule of law in the form of an imperative; 2) limiting the nature of commands to arbitrary instructions from rulers who are obeyed for fear of punishment, which does not allow to exclude the arbitrariness of regulation. This could be achieved if law, as a system, embodied the will of society, the state, uniting both rulers and the population ^{[40, p. 344]}.

In addition, W. J. Brown promotes an argument similar to J. W. Salmond that a significant part of legal norms does not have an imperative form, since they "do not concern the establishment of duties, but the granting of privileges." "The general purpose of law is not to impose duties, but to grant rights; not to turn a citizen into a slave, but to ennoble him as a person; not to force him to follow prescribed paths, but to provide him with opportunities for self-realization. In short, law is, first of all, a system of rights provided in the interests of the common good. Duties are imposed not for their own sake, but only for the purpose of ensuring rights" ^{[40, p. 341]}. Brown argues that the decisions made by judges are not based on a system of commands, but on the principles of utility and general welfare, which are developed through impartial conclusions in relation to reality and facts of life. Accordingly, the jurist also adheres to the social thesis of law.

At the same time, W. J. Brown defines the concept of a positive law very closely to the understanding and terminology developed by J. Austin: "Every positive law (or any law in the ordinary or strict sense of the word) is established, directly or indirectly, by a sovereign person or body in relation to one or more members of an independent political society in which its creator has supreme power" ^{[40, p. 235]}, thus building a hierarchy from a higher person, with the power of coercion, to the lower ones. The fundamental difference is that Brown refutes the idea of law as the order of a "real ruler," with which Austin identifies the state and connects the origin of law as a whole. "Law in its entirety is the voice of an organized society, addressed to all persons under its control, and approving the rules of life that people can accept with the knowledge that society has the power to support them. It is an expression of the organized will of society, backed up by the organized power of society" ^{[40, p. 344]}.

It seems that the Australian lawyer made a reasonable conclusion that the definition of law should include not only an imperative element, but also, in particular, "target and mental", which were not taken into account in Austin's theory. The essence of law, according to Brown, consists in the complex perception and interaction of three concepts: "will", "command" and "reason". Thus, the term "law" should be understood as a set of rules concerning the external actions of a person in conjunction with the rights and obligations that these rules imply. They must be officially adopted by the State, applied in the course of dispute resolution by the judiciary, and their compliance must be monitored with the help of appropriate authorities.

The positivism of G.L.A. Hart and the criticism of the theory of law by J. Austin Hart

Herbert Lionel Adolph Hart (1907-1992) is rightfully considered one of the most outstanding English-speaking philosophers of law in the 20th century, among whose many achievements was the revival of the tradition of legal positivism. In the first chapters of his work "The Concept of Law", he tried to separate legal positivism from the "theory of commands" (command theory of law), developed by J. Austin in the first half of the XIX century. For an accurate understanding of Herbert Hart's criticism, in particular, of his place in the tradition of legal positivism, it is crucial to recognize that norms are not necessarily moral: normativity, including the normativity of law, always implies an orientation towards what should be, but, as Hart repeatedly noted, "ought" ("the ought") is not necessarily moral. Since Austin's theory presents all laws as commands (imperatives), backed up by threats of sanctions for disobedience, it negates in any legal management system the crucial role of norms conferring authority ("power-conferring norms") ^{[41, pp. 301-324]}.

Herbert Hart's criticism of the theory of law and, in general, John Austin's understanding of law, legal obligations and legal systems, presented by Hart in the work "The Concept of Law", still remains one of the key milestones in the development of jurisprudence, although not the first and not the only one, as we have already noted above. Hart's project is especially important not only because it presents a critical view of Austin's concept, but also because, as it is believed ^{[42, p. 4]}, legal positivism began to be defined, often for the better, but sometimes for the worse, by Hart in general and in his work "The Concept of Law" – in particular ^{[43, p. 32]}.

It seems fair to say that Hart, having identified the phenomenon of looking at rules from the inside (the internal aspect of rules) ^{[30, pp. 1177-1189]}, discovered and analyzed the dimension of law and rules, which Austin, unfortunately, neglected. Nevertheless, in our opinion, it becomes less obvious to assess this dimension as so important for understanding the nature of law, as Hart insists, and it is even less reasonable to claim that sanctions or coercion are of such minor importance for the concept of law, as Hart sometimes claims. In this regard, it may be logical to assume that Austin, ignoring the non-coercive dimensions of law, misinterpreted the reality of law. Nevertheless, it is difficult to consider such an imperfectly correct interpretation to be more erroneous than, probably, the tendency initiated by Hart to underestimate the importance of sanctions for defining the concept of law ^{[42, p. 2]}. There is a point of view that perhaps Austin's only supposed contribution to the development of legal theory is the assertion that a complex and detailed set of sanctions is what distinguishes legal duties from other types of duties ^{[42, p. 16]}.

In his lecture "Definition and Theory in Jurisprudence", Hart emphasized that law not only creates the authority to participate in theoretically previous behavior, but also forms the basis for activities that would otherwise simply not exist ^{[44, pp. 21-48]}.

According to Hart, a significant and far from the only simplification of Austin is the distortion of the law-establishing and empowering nature of the law. Assuming a vertical hierarchical relationship between the sovereign and the subject, considering law as something that is "established by political superiors for political inferiors" ("law set by political superiors to political inferiors") ^{[13, p. 18]}, Austin, according to Hart, neglected the very real modern possibility of a sovereign who not only creates the law, but also bound by it. Contrary to Austin's understanding, a characteristic feature of modern constitutional government is that both the government itself and the governed are subject to the law, and no analysis of modern law can be complete and comprehensive without taking into account this property of the law and legitimacy in general ^{[45, p. 538; 46, pp. 26-27; 32, pp. 13-17]}.

The main critical message of G. L. A. Hart regarding Austin's theory of law is that it significantly does not correspond to the facts. Austin argues that "every positive law or every law, in the strict sense, is a direct or indirect command of the monarch or sovereign group as a political ruler; that is, a direct or indirect command of the monarch or sovereign group to a person or persons in a state of subordination to its author" ^{[6, p. 214]}. Laws gain their force due to the threat of sanctions. Hart likens Austin's theory to the role of the shooter in the bank (the so-called "shooter theory") and "tries to distinguish between the shooter's orders and orders given by law." For example, "the shooter forces us to obey, but we may not feel inclined to obey him" ^{[26, pp. 18-25]}. Presumably, obedience to the law is accompanied by another feeling ^{[47, pp. 113-143]}. Hart argues that too many laws do not resemble commands (or orders) backed by sanctions for us to find this theory convincing ^{[48, pp. 404-411]}.

It should be noted that Austin as a whole does not set himself the goal of defining the concept of "law": he seeks to create a theory that can explain how the law works, central attention is paid to the strategic nature of various aspects of law, therefore his work is called "Defining the field of jurisprudence". Hart, on the contrary, writes about the "concept of law", that is, he set himself the task of defining it. I took care of the definition. A striking feature of Austin's work is that he does not seem to generally refuse to recognize the existence of categories of law that, in Hart's opinion, do not correspond to the so-called "strelka theory": Austin, rather, simply designates them as something other than the expression "laws" so often used by him in various variations. called so appropriately in the proper sense of the word" ("laws properly so called") ^{[6, p. 214]}.

Let's look at several key factors, based on which Herbert Hart states that laws as rules or norms (“rules”) would be more accurate and correct. There are several problematic points in the theory of commands, none of which is fatal to Austin's theory, but Hart assures that his theory has better ways to solve them.

Austin makes three statements about the law: 1) laws are addressed from superiors to inferiors; 2) compliance with laws is enforced through sanctions; 3) laws are issued by sovereigns, defined as people to whom other members of society are accustomed to obey. Each of these points raises a number of questions: 1. Most laws apply to legislators. If and when this is the case, who is superior and who is inferior? 2. Some laws allow people to perform certain actions, such as making contracts or making wills. These kinds of laws act more like instructions than commands. 3. There may be laws whose source is not the sovereign's command, for example, customary law. 4. There may be some sovereigns who do not have the habit of obeying.

Mr. Hart rightly noted that each of the above points is easy to coordinate and take into account if you accept his point of view that laws are rules, and rules can be applied to legislators. According to Hart, there may be enabling rules (authorizing norms), as Hart calls them ("enabling rules"), which dictate how to perform such actions as, for example, making a will or concluding a contract. And there may be rules defining the position of the sovereign, who can begin to fulfill this role even before anyone gets into the habit of obeying him.

With regard to customary law, Hart argues that rules can give custom the status of law, even if it is not the sovereign's command. The corresponding rule in his system will be the one called the rule of recognition. However, this will become the subject of disagreement between G. Hart and R. Dvorkin: Dvorkin does not believe that we can define a rule that would allow us to identify customary law ^{[49, S. 214-232]}.

Further, Mr. Hart believes that the most successfully developed point of his theory concerns obligations. Austin, according to Hart, failed to distinguish between the concept of "being obligated" to do something while under threat and the concept of "having an obligation" to do it. The position of a person with legal obligations differs in nature from that of a person confronted with an armed man, Hart believes, but Austin combines these two concepts into one. Instead of Austin's theory, according to which legal obligations consist in the threat of punishment, Hart proposed rules as a source of obligations. At the same time, the idea is quite simple: the rule tells a person what he should do.

It seems that Hart's position on moral obligations is fair: A threat is neither a necessary nor a sufficient condition for the existence of a moral obligation. But legal obligations are obviously not the same as moral obligations. Therefore, we need a convincing and objective reason to believe that legal obligations have the characteristics of moral obligations. Hart proposed three characteristics of mandatory rules as such a reason and noted that they are common to both moral and legal rules, namely: 1) rules are important for maintaining social life; 2) social pressure is exerted to ensure compliance with the rules; 3) rules may require people to do things they do not want to do.

According to G. Hart, obligations arise from rules that are enforced. According to J. According to Austin, mandatory rules are reinforced by the threat of sanctions, no matter how weak it may be ^{[6, p. 89]}. According to Hart, the difference is that Austin equates commitment with the threat of sanctions, while he believes that commitment is what the rule requires a person to do. According to J. Austin, what the law requires a person to do is one thing, but your motivation to comply with the law is something else. This idea can be illustrated by the following example: the stop sign tells you to stop, but your reasons for paying attention to what it means are something else. Hart tries to explain this discrepancy by citing the difference between what he calls an internal and an external view of the rules ^{[50, pp. 88-91]}. When a person follows a rule, he adheres to the view of the rule from the inside: for example, a sign means "stop", which means that a person needs to stop. A person begins to perceive the rule from an outside point of view when he uses it to predict people's behavior: the sign means "stop", people who ignore stop signs are often punished, usually people do not want to be punished, so they stop. The prediction in this case is that the person will be punished for ignoring the sign.

In our opinion, the question remains whether Mr. Hart is right when he says that legal norms primarily work because people adhere to the view of them from the inside.

Thus, the key points of the concept of G. Hart's criticism of the ideas of J. Austin can be defined as follows: 1) there are parts of the law that do not correspond to the theory of commands, especially governing or empowering norms; 2) Austin's statement that a legal obligation is the same as a threat from an armed person is unclear; 3) Hart understands the concept of "obligation" in a different way; 4) internal and external aspects rules.

Hart's main objections to Austin's theory boil down to the following considerations: 1) contrary to Austin's theory, law contains much more diversity than is represented by a theory that equates law exclusively to commands; 2) Austin's theory cannot distinguish a legitimate legal system from the rule of bandits, gangsters or terrorists; 3) theories that equate law to the commands (orders) of the sovereign cannot take into account the legal status customs, and may also face difficulties in taking into account judicial law-making (case law); 4) many communities may not have any body that could be considered a "sovereign" in the sense that Austin used, that is, a person or institution acting without restrictions. In fact, Austin noted many of these objections in his own writings and offered answers ^{[13, pp. 190-242]}, but these answers largely disappeared into oblivion when Austin was tried to put in the place of a "sincere but limited theorist whose shortcomings were corrected by later and wiser authors" ^{[28, p. 3]}.

1. Although "of all the varieties of law, a criminal law prohibiting or prescribing certain actions under penalty of punishment is most similar to orders backed up by threats given by one person to another, such a law nevertheless differs from similar orders in the important respect that it is usually applied to those who accept it, and not only to other people" ^{[51, p. 77]}. Against Austin's thesis that the sovereign is not under the rule of law, but on the contrary is above it, Hart notes that currently "a large number of laws are being passed that impose legal obligations on lawmakers" ^{[51, p. 42]}. Austin suggests that a person cannot be bound by his own threat against himself, since a threat to punish himself cannot be taken seriously in the same way as, for example, a threat to punish his child if he does not keep his promise. In general, such a judgment can hardly be called original for Austin, since this opinion was shared by many other philosophers and jurists before him, including J. Locke ^{[52, p. 161]}, T. Hobbes ^{[48, pp. 404-405]}, G. Grotius ^{[13, p. 214]}, D. Hume. At the same time, it should be emphasized that Austin clearly distinguishes between a sovereign body and an individual member of a sovereign body and talks about what erroneous conclusions can be reached if these two different concepts are mixed: the law cannot impose legal obligations on the sovereign body that accepts it, but it can impose legal obligations on individual members or even each member of this sovereign body. A similar term used by Hart, "the self-binding nature of a legislative act" ("self-binding quality of legislative enactment") ^{[51, p. 42]} is misleading in the sense that a sovereign body cannot pass laws that will be effective for governing this body if the body itself does not want to obey them.

2. There are "other types of law, in particular, those that confer legitimate powers to make judicial decisions or carry out legislative activities (public powers) or to create or change legal relations (private powers), which, without being reduced to absurdity, cannot be interpreted as orders backed up by threats" ^{[51, p. 77]}. Laws conferring public powers are formally necessary for a system of orders backed by sanctions (for example, laws defining the powers of a judge are clearly necessary for the legal system as such). It seems that Austin does not pay enough attention to the laws that confer private powers and are so important for an ordinary citizen. Hart, apparently, proposes to include in this category a significant part of those laws that regulate civil and administrative legal relations (including, for example, the use of highways, various landfills for private waste, radio and television, etc.) and in general everything that is aimed at strengthening the economic well-being of society as a whole and individual segments of the population.

3. There are "legal norms that differ from orders in the manner of their origin, since they are not enforced by anything similar to a direct prescription" ^{[51, p. 77]}. Thus, criticizing Austin's assertion that laws should take the form of commands, Hart notes that ordinary laws do not arise from the commands of the sovereign, since there are no explicit prescriptions for these laws. The sovereign, in his collegial or individual composition, usually considers it reasonable to establish the content of laws according to the traditional understanding, rather than by creating a careful, explicit prescription, because any law must be formulated in linguistic terms, the meaning and interpretation of which must be largely determined by traditional ideas ("the thesis of conventionality" – "conventionality thesis"). According to this thesis, the authority of the criteria of legal validity in any conceptually possible legal system is explained by the fact that such criteria constitute the conditions of a social convention among people acting as officials. Every law in any reasonably complex system is, in fact, an unspoken order in the sense that its content cannot be determined without interpretation, the task of implementing which is delegated to third parties and bodies. Nevertheless, regardless of whether the task of determining the content of laws is delegated to judicial or administrative authorities, in the end, laws are valid only if they are supported by sanctions.

4. "Finally, the analysis of law from the point of view of a sovereign, habitually obeying and necessarily freed from all legal restrictions, does not take into account the continuity of legislative power characteristic of the modern legal system, and a sovereign person or persons [cannot] be identified with either the electorate or the legislative power of a modern state" ^{[51, p. 77]}. Hart argues that the concept of a sovereign, who is accustomed to be obeyed, does not correspond to the order in which the law functions in modern society. It is generally necessary to recognize the expediency of Hart's criticism as an erroneous concept of habitual obedience used by Austin, however, in our opinion, the problem is not Austin's inability to choose the right term: after all, Austin almost always uses the concept of habit in the context of the influence of traditions on the regulation of human behavior, he considers a system of incentives and motives that influence people's choice when committing an act or refraining from committing it. Austin means by sanction damage or costs intentionally imposed on a person by a certain person or group of persons (institution, body) in order to prevent this or that person's behavior. Thus, Austin, considering the functioning of law through a system of incentives and motives inherent in the traditional way of life, as well as sanctions in the context of positive law, avoids many normative problems that Hart considers key, essential and defining for law.

It is interesting to note that Hart's earlier opinion was that we can be morally obliged by actions or deeds regardless of whether we have our consent, while his later point of view is that some of us simply feel obligated: that is, individuals view legal norms from the point of view of what Hart calls the "internal aspect of the rules", which means that they "accept and voluntarily cooperate in maintaining the rules and therefore consider their own and others' behavior in accordance with the rules and in the context of their application" ^{[51, p. 88]}. Austin is also close to this position, although he uses the terms "positive morality" and "laws improperly so called", that is, "laws improperly imposed by someone else's opinion" ("laws improperly imposed by opinion") ^{[6, pp. 220-221]}. Of course, Austin's more general view is that a person is obligated because he is under threat of sanctions. It is logical to agree with the opinion of Austin, and subsequently with Hart of the later period, that if many people really feel obligated by law, then the need to apply sanctions may be less frequent, which will indicate greater effectiveness (the "efficiency thesis"). Based on the analysis of the language of everyday communication, it also follows that the concept of obligation (which at the same time is of an individual nature) is strongly associated with law, which should be perceived as confirmation of the presence of a sociological fact contained in the rule of law.

Stephen Perry notes that Hart's legal positivism contains two doctrines, namely material and methodological legal positivism, although Hart himself did not make a clear distinction between them ^{[30, pp. 1171-1177]}. The first doctrine is the statement that "there is no necessary connection between morality and the content of law", and the second is the statement that "there is no necessary connection between morality and the theory of law" ^{[53, pp. 203-224]}.

The Concept of Law presents the theory of legal positivism by G. L. A. Hart within the framework of the analytical philosophy of law, the essence of which is that laws are rules created by people, and that there is no inherent or necessary connection between law and morality ^{[54, p. 225]}. Hart sought to create a theory of descriptive sociology and analytical jurisprudence. His work examines a number of traditional issues of jurisprudence, such as the nature of law, the question of whether laws are rules, and the relationship between law and morality.

Hart asks the following recurring three persistent questions for the theory of law: "How does law differ from orders (commands) backed by threats, and how is it related to them? How do legal obligations differ from moral obligations and what is the relationship between them? What are the rules and to what extent is the law the embodiment of the rules?" ^{[26, p. 13]}. The starting point for the discussion is Hart's unsatisfactory assessment of John Austin's "theory of commands", a legal concept according to which a law is a command (or order) backed by a threat and the application of which should be universal.

Herbert Hart identifies three important criteria: 1) content; 2) origin; 3) scope. As for the content, not all laws are mandatory or compulsory: some of them are stimulating, intermediary in nature, creating the basis for entering into contractual and other legal relations.

Unlike John Austin, who believed that in every legal system there should be a sovereign who creates the law (origin) and at the same time is not himself influenced by it (scope), like, for example, the "shooter in the bank", who is the only source of orders and does not obey other people's orders, Hart argues that this is a misconception of the law. He notes that laws can have multiple sources, and legislators often obey laws that they create themselves. Thus, Hart makes it clear that laws imply a much wider range of sources than compulsory orders, which contradicts the "theory of commands" (the so-called "command theory of law") Austin. Often, laws are stimulating in nature and allow citizens to take powerful actions: for example, to make wills or conclude contracts that will have legal force.

In the understanding of G. Hart, the law is a set, unity ("union") of primary and secondary rules (norms). The primary rules are the rules of behavior (commands in the theory of J. Austin's are an excellent example of primary rules). Secondary rules are rules about rules, as they relate to how to create, modify, and interpret rules. These norms do not prescribe behavior, but perform the function of organizing the legal system itself ^{[55, pp. 361-365]}. Hart proposed three types of secondary rules: 1. The rule of recognition ("rule of recognition") is used to define rules that are laws and their differences from those that are not laws; 2. rules of change ("rules of change") are used to create and change laws; 3. rules The rules of justice ("rules of adjudication") are used to resolve the problem of various contradictory interpretations of the law.

In particular, an example is given that the constitution is undoubtedly part of the legislation of the state, but its norms do not contain orders or sanctions. Similarly, the right of judges to interpret laws and resolve disputes arising from them is recognized. They are given these powers on the basis of the provisions of other laws. However, the laws that create the basis for judicial power are not perceived as commands or useful guides for predictions.

The recognition rule

The recognition rule is the most important secondary rule. Hart lists several possible sources of law as an example, which makes the rule of recognition more complex: authoritative texts, legislation, customary practice, the commands of someone, for example, the sovereign, previous court decisions or the constitution ^{[50, pp. 100-101]}. The question arises whether the recognition rule is redundant in relation to the rules of change. If the rule of change says that the legislature can create a law with the consent of the president, then doesn't it do all the things that the recognition rule is needed for? The law, to be considered as such, must comply with the rule of amendment. This statement will work for everything Hart lists, except for customary law: it is impossible to trace the origin of customs to the moment when an authoritative body adopts them, causing a change in the law. However, it is questionable whether the Hart recognition rule could also do the correct, proper job of defining customary law.

The recognition rule is the basic rule for determining whether other rules are rules of law. By itself, it is not a legally valid law. It cannot be, because it does not follow from any other legal norm in the legal system. The recognition rule exists for a given society only if the members of that society follow it.

To summarize, three key points of the concept can be identified: 1) the difference between primary and secondary rules; 2) three secondary rules; 3) a particular consideration of the recognition rule.

A summary of the theory of the commands of J. Austin (better known as the "command theory of law") and the objections of G. L. A. Hart

Austin defined the law as "the sovereign's command, backed by sanctions." Thus, the three most important components of this definition are the concepts of "command", "sanction" and "sovereign". Let's analyze sequentially the scope and meaning of each of these terms in Austin's understanding, as well as Hart's criticism of each of these concepts.

So, Austin believed that the law is a kind of command. He also defined a command as "a hint (feeling), or expression of a desire to do something or refrain from doing something, supported by the presence of the power to harm the actor in case of his disobedience." In addition, the person to whom the command is given is obliged (that is, has a "duty") to obey, and the threat of harm is defined by Austin as a "sanction".

I. According to Hart, the idea that the law consists only of orders backed by threats is unacceptable to explain modern legal systems. In modern legal systems, there are laws governing the conclusion and execution of contracts, the drafting of wills, marriage and other documents that are subject to execution only in the future. Hart calls these types of laws "rules (norms) conferring authority" ("power conferring rules") and argues that they are less in the nature of orders backed by threats, rather, and more in the nature of rules that create a framework in which people can determine the scope and the limits of their rights, duties and responsibilities.

Hart also considers another type of law – laws defining the scope and limitations of judicial and legislative power, laws granting jurisdiction to courts and regulating the functioning of government institutions. He argues that these laws cannot be considered as ordinary orders backed up by threats.

However, attempts have been made to liken and equate the rules conferring authority to the broad scope of orders backed by threats. According to the first of these theories, insignificance, which is a consequence of non-compliance with the framework established by the rules (norms) conferring authority, is a sanction in Austin's understanding. However, Hart argues that these two concepts are fundamentally different in nature: in criminal law, which is more like an order backed by threats, a sanction necessarily follows from a prohibited action. But as for the order, one can imagine such an order that prohibits anything without imposing a sanction. Nevertheless, in the case of rules (norms) conferring authority, the nullity clause is part of the rule itself. In particular, it is impossible to imagine the provisions governing the procedure for making a valid will, without understanding that a will cannot exist without these provisions. Hart also sets out a number of subsidiary objections: thus, insignificance is not always a source of evil (for example, for a judge who makes a decision without jurisdiction).

The second theory is that the rules conferring authority are not real laws. This theory considers all laws as instructions to officials to apply sanctions in case of non-compliance. Thus, the rule conferring authority will be considered as an instruction to the relevant official not to recognize a particular transaction as valid if the rules of procedure are not followed. Hart, however, argues that such a theory achieves uniformity at the cost of distorting the true nature of the laws. For example, the meaning of criminal law is to establish certain standards of behavior that citizens must comply with. Sanctions exist only as auxiliary measures in case the system does not justify itself and fails. Therefore, it is incorrect to consider criminal law as instructions to officials to apply sanctions, and the same logic applies to the rules conferring authority.

II. Hart's second key objection to Austin's theory of law concerns the scope of the laws. As Hart points out, the term "command" implies a top-down stable hierarchy of people, while the rules should be exclusively focused on others. However, this is not the case in modern legal systems, since laws often have "self-binding" force. Attempting to give an answer to this, it is argued that the legislator has two personalities: 1) a legislative person who gives orders and 2) an ordinary person, as a citizen, who is obliged to obey. However, Hart argues that such a complex construction is unnecessary to explain the "self-binding" nature of legislation. Legislation can be seen as a promise that creates obligations for the promisor, and in any case, most of the legislation is implemented within the framework of already existing rules of procedure that bind legislators.

III. Hart's third objection to Austin's theory of law relates to customary law, the nature and source of which precludes the possibility of considering customary law rules as commands. It is argued that the validity of customs depends on the tacit consent of the sovereign: that is, if the courts apply customary law, and the legislature does not repeal such rules, then the need to comply with customary law can be considered an implied command. However, according to Hart, the absence of objections does not mean implied consent: after all, it can equally mean lack of knowledge or ignorance, or many other reasons. On three grounds relating to the content of the laws, their scope and the nature of their origin, Hart rejects the idea that the law is simply a collection of coercive orders backed by threats.

The third important component of Austin's definition is the term "sovereign." Austin defines a sovereign as "a person to whom most members of a given society are accustomed to obey, and he is not accustomed to obey anyone." Hart's criticism is directed both at the idea of "habitual obedience" and the idea that the sovereign is the "overlord who is not commanded" ("uncommanded commander") of society.

Hart argues that the habit of obedience, which is simply the coincidental behavior of members of society, is unacceptable to explain the continued legal force of laws in the future. The simple habit of obeying the orders of one legislator cannot give the next legislator the right to replace the old one or give orders in his place. Why is the law adopted by the successor in the role of legislator already a law before it was obeyed by force of habit? To answer this question, it is necessary to distinguish between a habit and a rule. The rules require not only the presence of the same behavior of the members of the society, but also the similarity of their attitude towards them. In other words, the rules are considered as standards of behavior, deviation from which is considered worthy of criticism. Besides, the habit of obedience also cannot explain the constancy of the laws. In other words, how can a law passed by a previous legislator, who died long ago, remain a law for a society that cannot be said to be accustomed to obey it? Again, in this case, it is necessary to replace the concept of the habit of obedience with the concept of rules that determine inheritance rights.

IV. Hart's final objection to Austin's theory of law is that the sovereign does not possess, as Austin believed, "legally unlimited will" ("legally untrammeled will"). In most modern legal systems, there are legal restrictions on the power of the sovereign, and this does not at all contradict his supremacy within the legal system as the highest legislative authority. Recognizing the existence of such a problem, Austin wrote that in democratic states, the electorate forms the sovereign. However, according to Hart, such a statement leads to the absurd conclusion that the "bulk" (as Hart puts it) of society habitually obeys itself. It can be argued that legislators, being in their official capacity, establish rules that are then applied to them in their personal capacity. However, the very concept of official powers presupposes the existence of rules granting them such powers, which, in turn, is again incompatible with the idea of Austin's sovereignty. Therefore, for all the above reasons, Hart rejects Austin's theory of commands (often called the "command theory of law" as a "tracing paper" from English) and considers it insufficient to explain the legal systems of modern societies.

The internal aspect of the rules by G. L. A. Hart

When formulating his theory of law, one of the main tasks of G. Hart was to eliminate the shortcomings of J. Hart's "theory of commands". Austin. Austin and representatives of the school of legal positivism viewed statements of commitment not as psychological statements, but as predictions of the chances of punishment or evil. Hart raised two fundamental objections to this: 1) deviation from obligations is not only the basis for predicting subsequent harm, but also the basis for justifying this harm; 2) avoidance of obligations does not always mean termination of the obligation itself, which would be a necessary and absurd consequence of Austin's definition. According to Hart, rules are conceived as imposing obligations when the requirement of conformal behavior is so urgent and necessary, and the social pressure exerted on those who deviate or threaten to deviate from generally accepted conformal behavior (deviant behaviors) is great.

It is very important to distinguish rules from simple habits, or the matching (conformal) behavior of members of society, and it is at this point that Hart departs from Austin's point of view. Hart argues that predictive theory considers only the external aspect of rules and some qualities of habit, which somewhat resembles the concept of a "bad man" inherent in American legal realism. However, there is a second aspect of the rules, namely, the internal aspect. Rules are seen as standards governing behavior, and therefore deviation from them is a reason for criticism, and not just a reason for foresight or predestination. Thus, for Hart, the concept of rules includes not only coincident (conformal) behavior (an external point of view – an external aspect), but also coinciding, similar attitudes and attitudes of members of society. From the point of view of the rules from the inside (the internal aspect), people within the legal system judge, evaluate and criticize their behavior and the behavior of their fellow citizens. While the view of the rules from the outside (the external aspect) is a purely descriptive position of an observer outside the system, while the point of view from the inside (the internal aspect) is an evaluative position ^{[30, pp. 1177-1189]}.

Hart connects the concept of "efficiency" with third-party statements about the legal system (from the outside): For example, an external observer will obviously talk about the legal system in terms of its practical operation. Similarly, the concept of "validity" is associated with statements made from the point of view of an inside view, where rules are considered as standards, deviation from which is the basis for criticism. However, there is a contextual connection between the statement of validity made from the point of view of an inside view and the statement of an external observer about effectiveness. This is due to the fact that if statements made from the point of view of the inside are no longer made within the framework of the legal system, this will have such a strong impact on efficiency that, with regard to achieving all practical goals, the legal system can be considered destroyed and ceased to exist. Kasatkin S. N. notes that "with regard to law, the expression "(legal) validity" does not always allow for a clear separation (understood rather sociologically) of legal reality, effectiveness, actual realization of law and what Hart actually says – the (interpreted normatively) effect of law, i.e. the existence of a provision, act, adopted (and not canceled) according to the proper procedure and considered without connection with any empirical consequences, the existence of its legal force" ^{[56, p. 15]}.

Having developed this concept of the internal aspect of the rules, Hart now attributes it a place in the legal system. Law is a set (unity – "union", in Hart's words) of primary and secondary rules: primary rules impose obligations on citizens, and secondary rules are instructions to officials authorizing them to change, recognize (create) or make decisions on primary rules. Hart argues that a sufficient condition is that citizens who are subject to the primary rules should perceive the primary rules only from the point of view of looking at them from the outside (the external aspect). They may not consider the rules as standards, they may not consider themselves obliged to obey them, they may not even assume a moral obligation to follow the law: all this, however, does not matter for the existence of a legal system. The only necessary condition is the existence of an external point of view (the external aspect of the rules), so that an outside observer can look at the behavior of citizens and only on the basis of this conclude that the legal system is in an optimal, working state in practice.

The internal aspect appears precisely at the level of secondary rules (norms). According to Hart, a necessary condition for the existence of a legal system is that officials who are directed by secondary rules to identify and apply primary norms adhere to a point of view from the inside in relation to them. This is so because the above is the only way that can provide a basis and justify the enforcement, creation or modification of obligations – a theory that uses, in fact, the concept of a "social rule" proposed by Hart.

G. Hart defines the concept of law with reference to the ultimate rule of recognition in the legal system, in the sense of a set of institutional and non-institutional, or public, sources of law generally recognized by judges and other officials in their task of determining the applicable legal norms. In the work "The Concept of Law", legal principles, at least at first glance, are excluded from the field of law, since they cannot be identified by referring only to the formal source of their origin, as required by Hart's theory of law ^{[26, p. 199; 50, p. 250]}.

By the way, the remark of the modern Finnish scientist Raimo Siltala about G. L. A. Hart is interesting: despite Hart's wide fame as a key representative of analytical legal positivism following in the footsteps of G. Kelsen, his definition of the rule of recognition as a collective, more or less uniformly shared by judges and other officials commitment to a similar set of institutional and non-institutional legal sources brings Hart's theory of law closer to the analytical legal realism of the Danish lawyer and legal philosopher Alf Ross (1899-1979) ^{[47, p. 154; 26, p. 5]}.

Summing up, it can be said that G. Hart considers the internal aspect of the rules as providing reasons or justifications for criticism in case of deviation from conformal behavior, as opposed to the external aspect, which simply predicts the consequences. In the legal system, a necessary condition is for officials to look at secondary rules from the inside, but such an inside view may be limited only to understanding what the rule requires, or it may extend to a voluntary obligation to comply with the rule.

A review of some criticisms of Herbert Hart's Positivist project

Hart's criticism of Austin, especially his views on sanctions, has been accepted as an axiom in modern analytical jurisprudence, at least in the positivist tradition and even more so from the point of view of natural law. Such modern jurists and legal philosophers as Joseph Raz ^{[57, pp. 170-177]}, Jules Coleman, John Gardner (1965-2019) ^{[58, p. 14]}, Leslie Green ^{[59, p. 1049]}, and many others consider one of the fundamental tasks of jurisprudence, and perhaps the only one ^{[60, p. 72]}, explain why and how the law can claim to create and impose obligations, which then, depending on the circumstances, will be provided with sanctions, and thus take it for granted that the sanctions-dependent assessment of what a legal obligation is suffers from precisely those disadvantages, which Hart identified in Austin's theory of law ^{[42, p. 7]}.

Hart's idea of the internal aspect of the rules has been subjected to two weighty and convincing criticisms: 1) John Finnis and 2) Joseph Raza ^{[61, pp. 183-186]}. John Finnis argues that when G. Hart uses the idea of primary and secondary rules to distinguish a developed legal system from a primitive legal system, he uses a philosophical tool called "the central case" (an idea that bears close resemblance to the Weber ideal type). The "central case" is the case that, within a certain paradigm, best matches the characteristics of that paradigm. J. Finnis also believes that G. Hart should not have stopped at the existence of the internal aspect of the rules as a tool for distinguishing between the "central case" and other secondary cases, that he should have further differentiated the very concept of the internal aspect. Consequently, there are many reasons or motives why people view rules as standards (from an inside perspective), including self-interest, detached interest in the well-being of others, etc. According to J. According to Finnis, all these are "blurred" ("watered-down") ideas about the internal aspect of the rules: the "central case" is the point of view of a moral person, that is, one who considers the law as a moral standard or moral norm ^{[62, p. 11]}. Finnis's writings, however, lack an explanation of why the standard of a moral person should be central to legal systems, which is an obvious flaw in his criticisms.

The second critic of Hart, Joseph Raz, argues that the dichotomy of internal and external aspects of the rules proposed by Hart obliges him to take a position in which either a person should be a detached observer commenting on the effectiveness of the legal system, or an actor within this system asserting the moral authority of the law ^{[63, pp. 210-237]}. However, according to Raza, there is also a third category of statements, by which he means statements by lawyers, or jurists, teachers of legal disciplines ("law teachers") explaining the law to others ^{[64, pp. 349-370]}. This allows you to make a statement from the point of view from the inside, without approving it as a normative standard. For example, a person may be an ardent opponent of the death penalty, but within the framework of the legal system of his country, he has the right to write a legal opinion contrary to his beliefs, referring to the content of the state legislation on this issue, which will not oblige him to approve the content of the rule itself from a moral point of view (c M.: Kraevsky A. A. Decree. op., pp. 96-97).

This supposed contradiction in Hart's rule theory is elegantly explained by Neil McCormick (1941-2009), who argues that understanding, not will, determines the "inner quality" of a statement. One can understand the norm, be able to make judgments using its terms, and at the same time remain hostile or indifferent to it. Therefore, according to McCormick, the point of view from the inside should be further divided into two categories: 1) just an understanding of what the norm requires, and 2) a strong-willed commitment to compliance with the norm.

In the work "Legal Justification and Legal Theory" in 1978 ("Legal Reasoning and Legal Theory") and in a number of other works on this issue ("The question of sovereignty: Law, State and Nation in the European Community" in 1999 ("Questioning Sovereignty: Law, State, and Nation in the European Commonwealth"), "Rhetoric and the Rule of Law: A Theory of Legal Justification" 2005 ("Rhetoric and the Rule of Law: A Theory of Legal Reasoning"), "Institutions of Law: An Essay in Legal Theory" 2007 ("Institutions of Law: An Essay in Legal Theory"), "Practical Reason in Law and Morality" 2008 ("Practical Reason in Law and Morality"), Neil McCormick defends a consistent theory of legal justification. McCormick's theory can be called the "theory of three "C" ("linguistic consistency", "coherence", "social consequences of law"): linguistic consistency, striving for a principled, by analogy verified consistency and integrity (coherence) between legal principles and the value-based social consequences of law ^{[65, p. 250]}.

Setting out the latest prerequisites of law by analogy with the basic norm (German: "Grundnorm") of G. Kelsen or the rule of recognition of G. L. A. Hart, McCormick introduces the concept of "underlying reasons": that is, "the reasons for the adoption of criteria for the validity of the [legal] system", with reference to "arguments of the principle of consistency, which are essentially evaluative and, therefore, to some extent subjective" ^{[66, pp. 64, 106]}.

McCormick makes a reasonable assumption that no legal system can exist without at least a few people who really care about maintaining patterns of behavior, who really have a strong-willed obligation to comply with the rule. Neil McCormick describes the confusion of imperative and normative as "one of the eternal and enduring misconceptions in the philosophy of law" ^{[66, p. 101]}. In this regard, it is interesting to mention an interesting quote from the work of the Scottish legal philosopher John Gardner (1965-2019), who believes that those who adhere to the point of view of the paramount importance of considerations of prudence and prudence in understanding law commit "sad <...> a familiar mistake" ^{[58, pp. 13-14]}, and the modern Scottish-Canadian scholar in the field of analytical philosophy of law Leslie Green, in addition to describing Austin's sanctions-based view of legal obligation as "friendless" ^{[67, p. 517]}, insists that A system of norms relying solely on sanctions and incentives (motives) would not be a "system of law" at all ^{[59, p. 1049]}.

Conclusion

Back at the end of the XIX century, J. W. Salmond in his work "The First Principles of Jurisprudence" gave the opposite opinion about the concept of law as a command of the state and analyzed its main shortcomings. Then, in the work "Jurisprudence, or the theory of Law", he discovered the shortcomings of the imperative theory of law, whose adherents are T. Hobbes, S. von Pufendorf, I. Bentham and J. Austin. From the point of view of W. J. Brown, the essence of law lies in the complex action of three categories: "will", "command" and "reason". The ideal theory of law presupposes the recognition of elements of unity, progress and purposeful development aimed at achieving a goal (the influence of the German jurist R. von Iering and his "concept of a single organism" is obvious). G.L.A. Hart defines the concept of law with reference to the ultimate rule of recognition in the legal system, in in the sense of a set of institutional and non-institutional, or public, sources of law, generally recognized by judges and other officials in their task of determining the applicable legal norms ^{[26, p. 199; 50, p. 250]}.

The peculiarities of the genesis of key institutions in the family of general (case law) determine the directions of development of the concepts of the Anglo-American tradition of uspositivism. At the same time, it is important to record the special manifestations peculiar to “common law” and how they can be adapted to the provisions and principles of analytical jurisprudence. A comprehensive study of the works of representatives of various legal traditions and a comparative legal study of their core ideas allows us to more deeply and comprehensively trace the genesis and evolution of various currents of positivist legal understanding, identify the causes of certain doctrinal approaches, identify the points of contact of various legal theories, elements of mutual influence, factors that caused the divergence of positions.

It is fair to conclude that T. Hobbes and I. Bentham characterize the law as having the properties of imperativeness and compulsion due to the fact that it comes from the will of the sovereign. In addition, they emphasize the impersonality of the law, that is, the absence of its focus on a specific identified subject. The fundamental feature uniting the early concepts of legal positivism in England is the denial of the probability of the existence of natural law, which stems from nature and does not depend on subjective judgments. It is necessary to pay special attention to the fact that Bentham and Austin's considerations on the structure of the legal system went against the principles of “common law”, since the degree of centralization of legal establishment, according to the legal theories of these English jurists, is absolutely not peculiar to case law, which is not associated with the dictates of a certain sovereign, is not based on the principle of utility and does not differ integrity and interconnectedness.

In our opinion, Bentham's desire for revolutionary changes in the common law system naturally failed, since it was confronted with the beliefs thoroughly entrenched in the minds of English lawyers that the judge plays a central role in the legal system of England, performing not only law enforcement, but also law-making functions. A similar legal understanding found expression in the legal teachings of New Zealand lawyer, civil servant and judge John William Salmond. Unlike J. According to Salmond, the inclusion of the protection of subjective law in the concept of law gives it a targeted aspect. In this context, ethics becomes an integral component of law, considered as a means of ensuring justice. J. Salmond combines two components in the concept of justice: 1) the political element is connected with the requirements and imperatives arising from the state ("law"); 2) the ethical element presupposes the fulfillment by justice of the task of promoting the realization and protection of subjective law ("right") ^{[68, pp. 83-85]}.

W. J. Brown develops an argument similar to that presented by J. W. Salmond that a significant part of the law cannot be expressed in the form of commands and that many rules of law do not concern the establishment of duties, but the granting of privileges. The essence of law, in his opinion, consists in the complex perception and interaction of three concepts: "will", "command" and "reason". "Reason" is called upon to assert the order provided by the coordinated power of the state in order to achieve a real or imaginary good. The very existence of an organized State is the most important prerequisite for the existence of positive law.

Hart's theory is also called "legal positivism" because Hart shares the view that the way to identify laws is to trace their source. But at the same time, Hart is considered the main critic of Austin. The key difference between their versions of legal positivism is that Austin argues that laws are commands (or orders), while Hart argues that laws are rules (or norms) ^{[30, pp. 1174-1177]}. The key points of the concept of G. Hart's criticism of the ideas of J. Austin can be defined as follows: 1. there are parts of the law that do not correspond to the theory of commands, especially governing or empowering norms; 2. Austin's statement that a legal obligation is the same as a threat from an armed person is unclear; 3. Hart understands the concept of "obligation" in a different way; 4. Internal and external aspects of the rules.

In conclusion, it seems worth noting the conclusions of Brian Bix that, to some extent, the success or failure of a theory largely depends on the perception and judgments of users of this theory. Any ideas, including legal concepts, arise in response to intellectual questions and practical problems of their time. They can be adapted to reality and practice, or reformulated in such a way as to meet the needs of another period. However, there comes a point when a theory that was previously considered powerful and significant begins to seem outdated and useless to a new generation of thinkers. Probably, such changes in perception occur at the level of individual components of theory construction. Thus, the conclusions and "insights" of the Austin concept can play the role of a fundamental doctrine for one generation, but become insignificant or difficult to perceive for a later generation, while any deviations or inaccuracies are fraught with fatal consequences ^{[28, pp. 1-13]}.