RESPONSE PAPER ON H. L. A.

HART’S

IDEA OF OBLIGATION

Hart believes that an obligation is something that a rule requires you to do. Hart
divide the rule of obligation into two – Primary rule of obligation and
Secondary rule of obligation. According to him a legal system must have both
primary and secondary rule of obligation. Primary rule imposes basic duties on
the people, i.e, what they ought to do and what they should not. Secondary
rules govern the creation and operation of primary law.

Hart’s theory of law is different from that of Austin. Using the Gunman
example, Hart uses the linguistic phrases “under an obligation” and “being
obliged” and proves their difference. When A asks B to give his purse, B is not
under an obligation to give the purse, but B is being obliged to give the purse.
Here, Austin’s concept that the law is the command of the sovereign enforced
by sanction is used, as the theory of coercive law used. Hart criticize Austin’s
claim that laws are coercive orders which will impose obligations or duties on
individuals which involves threats and punishments.

But Hart itself say that some other example other than the Gunman case is
required to prove the difference between ‘under an obligation’ and ‘being
obliged’. I support Hart’s argument that there is logically no connection
between law and coercion and instead of using the threatening notion; an action
can be done with the motives and beliefs. The law should be creating an
obligation and these obligations must be independent of the sanctions even if
the law is violated or not. The people should be having a feeling within
themselves that they should be following the laws even in the absence of
sanction. I strongly support Hart’s view that law must be independent of
coercion. Instead law should be able give the people the belief and motives
within themselves so that they will follow the rules in the absence of sanctions.
This is completely contradicting Austin’s theory of law and is a much better
concept. I believe that people obey law even in the absence of coercive
sanctions because morality plays a very important role and this morality gives
the citizen the mind to obey the laws even in the absence of coercive sanctions.

I am persuaded by Hart’s theory and find it a genuine one and find his concept
about moral obligation correct, but I am still confused because the legal
obligations and moral obligations are not the same.

ASWATHY. I. S

Reg No. BC0160009