Hart’s Concept of Law (2): Commands and Consent

In a previous post on H.L.A. Hart’s Concept of Law, I had taken issue with the idea, expressed by Hart, that the criminal code consists of “commands” or “imperatives.” I don’t think it does, and regard both Hart’s discussion and much discussion based on it, as fundamentally confused as a result. This was the topic of a Zoom conversation we had last Sunday, and then an email missive I sent out and promised to post. I was originally going to make it a comment on my last post, but it’s too long, so I’ve made it a post of its own. I’ve cleaned it up slightly, but not (I think) in ways that anticipate the criticisms that were made of it in the email discussion.

One problem with Hart’s discussion of the “command” aspect of law is that it doesn’t allow even for the possibility that we consent to government. This is a contentious thesis, and I understand that many people find it impossible. But it’s at least an endoxon that has to be dealt with.

Suppose that we consent to government. Then the “commands” that government gives us have the status of the “commands” that a non-conscript military person receives from his “commanding” officer. They’re not coercive in any literal sense of that term, but commands given with prior consent.

To use a more pedestrian example, to get a Commercial Driver’s License, you pre-consent to a blood test if you have an accident. If under those circumstances, you find yourself unconscious in the hospital, and your blood is drawn without your knowledge, it’s incorrect to say that it was drawn without your consent. Because your consent was previously given, it’s not needed at that moment. That was the whole point of the pre-consent, that is, to accommodate the case in which your blood is needed when you’re unable to consent. There was a famous case in Salt Lake City about this. Contrary to popular belief, the cop was right in this instance, and the nurse was wrong.*

The relevance of this to the larger issue we were discussing: Suppose that I am right that the criminal code involves no commands. There can still be a higher-order rule that says “All of the laws of our regime are to be treated by the signatories of this document (or the parties to this agreement) as commands.” That higher-order rule can be the object of consent in a social contract. So if you adopt a social contract view of political legitimacy, the “commands” or imperatives (or whatever you want to call them) come in, not at the level of statutes, but at the level of consent to the political order itself. That renders commands superfluous at the legislative level.

What I want to say is that our laws (American laws) are written as though we had consented in this fashion (even though we haven’t). If you imagine that we had, there would be no need to write laws involving imperatives within the text of the statute itself. The consent to governmental authority would have taken place off-stage, applicable to each statute, but not a part of (the content of) any particular statute. The imperatives would be “commands” consented to by the governed in the act of consent to the social contract, rather than commanded by individual statutes. Contracts can be written (and often are written) to contain imperatives in my sense.

Precisely because we don’t consent to government in this way, my view is that the “command” aspect of our (actual) laws is an illusion. There is neither consent to a social contract nor commands at the level of individual statutes. There are simply individual statutes that define the elements of offenses and the sanctions for violation of those offenses, along with boilerplate talk (elsewhere) about “the consent of the governed.” Government relies on us to supply the belief that we’ve been commanded so as to rely on our adherence to these laws. We haven’t actually been commanded. That we have been commanded is a widespread illusion. People buy into this illusion because the truth seems too absurd to accept. Most people aren’t habituated into the realization that a great deal of politics is completely absurd.

The cash value of this illusion is that it not only gives us the illusion of having been commanded, but of our having consented to the “commands.” But neither thing is true.

Explicit acts of consent to government would resolve the problem. Imagine that we leave the laws as they are, sans commands. We’re then presented with a social contract that presents these laws as hypothetical commands (contingent on acceptance of the terms of the contract). We sign on. Now we are “commanded.” But though commanded, we are not coerced. My problem with Hart’s account is that it leaves no room for this story. He may not accept its legitimacy, but a general theory of law has to address it somehow, and his doesn’t.


*I regard the handling of this case subsequent to Wubbels’s arrest, including the termination of the officer, Jeff Payne, as a fundamental miscarriage of justice.

6 thoughts on “Hart’s Concept of Law (2): Commands and Consent

  1. I think there’s a difference between prior consent that is invoked when the person’s capacity for present consent is impaired (they’re unconscious, or delusional, or whatever) and prior consent that is taken to override the present withholding of consent. If (as I think) some rights are inalienable — e.g. the right to personal services, or the rights to someone’s body parts while they’re still in the body — then prior consent cannot nullify present withholding of consent. (Hence contracts for personal services can legitimately be enforced only by restitution and damages, i.e. the taking if external, alienable property, not by requiring specific performance — an issue on which Rothbard, I, and the u.s. supreme court are miraculously on the same side, although the supreme court makes an exception for military contracts while Rothbard and I would not.) In the blood case, the reason prior consent can justify taking a blood sample is not the fact that prior consent itself alienates any rights, but because when a patient’s capacity for consent is impaired, their prior consent is (usually) the best guide we have to what they would consent to now if unimpaired. (Whether that was true in the case you mention I don’t know.)

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    • So to be clear, I think soldiers have the same right to disobey orders and to quit their jobs as people in any other line of work. (And so that right is limited in only the ways that the corresponding civilian rights are limited. A soldier who is at this very moment engaged in action, defending people’s lives, may not have the right to quit at that instant. But a civilian airline pilot likewise does not have a right to quit her job in mid-flight by strapping on a parachute and bailing out, leaving her passengers to plunge to their deaths; she has to wait until the plane is back on the ground.)

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      • And to further clarify, that means that even if our prior consent to the u.s. govt. were genuine, rather than fictive, it would not give the govt. any right to command our actions if we withdraw that consent.

        Prior consent could in theory give the govt. legitimate power over our external alienable goods; it would be as though we’d posted a bond forfeitable in case of disobedience. However, in that case a different set of impediments to binding consent would still be operative, in the way that Charles points out here:

        https://radgeek.com/gt/2009/01/08/can_anybody/

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        • Though I disagree to some extent with your comments, I think we’re addressing somewhat unrelated issues. You’re addressing the issue of whether consent to government can ultimately be justified by way of the model of the sort of prior consent that obtains in the CDL case. But I’m asking a methodological question related to Hart’s starting point in The Concept of Law. Though he doesn’t ultimately endorse the gunman model of law, he treats it as an endoxon and a plausible starting point. Drawing on Austin and Kelsen (and ultimately Hobbes), he regards the gunman model as plausible enough to start with, to tinker with, and then to reject.

          My point is that his starting point really ought to be disjunctive: gunman model or voluntary promise model. There’s a tradition, going back to Locke, and before Locke, to radical Protestantism, and before that, to the Hebrew Bible (and Qur’an), of both law and social order as arising from a voluntary compact. For present purposes, ignore the fact that the ultimate source of the compact is a set of coercive ultimatums from God. And ignore the fact that the parties to the contract were all male. The general idea is clear enough: you can get law out of a social contract. But Hobbes aside, it makes no sense to conceptualize a purely voluntary, consensual social contract on the gunman model–not even as a modified version of the gunman model. A voluntary social contract has nothing to do with the gunman model at all. And yet a voluntary contract is plausibly a source of law. So my issue is: why doesn’t Hart explicitly address that possibility?

          It doesn’t matter for the purposes of my objection to Hart whether the object of the social contract is anarchy or limited government. My point is, either way, you get law out of consensual promises. It’s a puzzle to me why Hart bypasses this fact in The Concept of Law. He’s transfixed by the gunman model, if only to refute it, but the fact remains: we can get law out of a voluntary social contract. Since we can, we still need to differentiate the law-we–get-out-of-a-social-contract from the rules we voluntarily agree upon in ordinary promises or even ordinary contracts. And, of course, we trivially have to differentiate both from coercive social institutions and systems.

          So when Hart begins his “fresh start” in chapter 5 after rejecting the gunman model, despite his rejection of the gunman model, he still seems to be endorsing one idea essential to it:

          It will be recalled that the theory of law as coercive orders, notwithstanding its errors, start from the perfectly correct appreciation of the fact that where there is law, there human conduct is made in some sense non-optional or obligatory. In choosing this starting-point the theory was well inspired, and in building up a new account of law in terms of the interplay of primary and secondary rules we too shall start from the same idea (Hart, p. 82).

          But that’s either unclear or a mistake. What Hart seems to be saying is that while law doesn’t consist of coercive orders, law is fundamentally coercive. Well, some laws are. But he’s given us no reason to assume that coercion is a necessary condition of the rule of law, and he hasn’t dealt with all with conceptions of law (Jewish, Islamic, Protestant, Lockean) that reject that assumption.

          The waters are muddied by Hart’s use of “non-optional or obligatory,” which might or might not be taken as equivalent to “coercive.” Once agreed on, a valid contract is “non-optional or obligatory,” whether the remedy for breach is specific performance or damages. (Damages are assessed because it was “non-optional or obligatory,” after all). Indeed, morally speaking, it can be “obligatory or non-optional” to consent to X under some circumstances, even if you have the right to refuse consent. But I think Hart wants to hold on to the idea that law is fundamentally coercive. His complaint against the gunman model is that it’s an oversimplification of the nature of law, not that it’s coercive.

          Consider an actual historical example–the Mayflower Compact. Again, ignore the fact that Mayflower Compact represents itself as an act of obedience to God’s coercive ultimatums, and that all of its signatories were men. Also ignore the fact that it was signed under duress, in the sense it was motivated by fear of persecution under the Stuart kings. And ignore the fact that once on North American shores, the Pilgrims decided to erect a quasi-imperialistic theocracy. We may have to make other exclusions I haven’t thought of, but my point is that making them doesn’t obviate my overall point. Just think of the Mayflower Compact as a document signed by a bunch of people getting on a boat, sailing for unsettled shores somewhere else.

          From that perspective, there is no gunman involved here at all, just people getting on a boat signing a contract. And yet the contract is law, and generates a system of law.

          https://en.wikipedia.org/wiki/Mayflower_Compact

          It could be that Hart’s conception of law as a union of primary and secondary rules plus rules of recognition accounts for things like the Mayflower Compact. (I haven’t read past chapter 4 on my current reading, and haven’t read Hart in awhile.) But I’m not sure it does, and I’m not sure that Hart himself takes it to do so. And if it does, I’m not sure how Hart would (if he would) differentiate law from the rules that obtain in an institution (like a firm, a university, a hospital) that has bylaws that include primary and secondary rules plus rules of recognition.

          Those uncertainties arise, I think, because as a matter of methodology and exposition, Hart is systematically insensitive to Lockean endoxa. Locke doesn’t so much as appear in the index of The Concept of Law. Hart’s main interlocutors (early on, anyway) are Hobbes, Austin, and Kelsen. I wonder if that’s just an artifact of philosophical discussion in the early 1960s. Straussians aside, there wasn’t much Locke scholarship around in 1961. And I suppose the Straussians, along with Willmoore Kendall, were easy enough to ignore.

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        • I haven’t read the link from Charles that you posted, but I think we’re agreeing on the overall point. I didn’t take myself to be taking a position in the original post on alienability of personal services, or withholding of consent to government after prior consent, etc. And I agree that the military exception is ad hoc. Soldiers and civilians should have the same rights.

          That said, I think it’s misleading to say that someone has a “right to quit” their job after they’ve agreed to do it, regardless of the content of the contract they signed. Here are some cases:

          (1) The person signs an agreement that involves employment at will. In that case, I agree that they have the right to quit at will, and the employer has the right to terminate at will. (It’s a separate question whether it’s just for either thing to happen in a given case.)

          (2) Suppose someone signs a contract that makes explicit reference to a term of service, and makes the term of service a condition of the contract. Let’s say it’s a year-long contract, and it’s a condition of the contract that the employment is to last a year. (I’m using “condition of the contract” in the sense used in business law, to imply that the term is essential to the contract, i.e., that breach of that term of the contract is to be regarded as a substantive breach of the contract.)

          I wouldn’t say, in case (2) that the employee has any “right to quit.” If he quits before the term is up, he breaches contract; if the employer terminates him before that time, they breach contract. But there is no such thing as a “right to breach of contract.” It’s a separate question what remedy should be available in case of breach. Perhaps, as you say, the right to personal services is inalienable, so that specific performance is off the table. I lean toward that view, but don’t have a strong view on it. But whatever the remedy for breach, the remedy is there to rectify a prior violation of rights.

          One reason I don’t have a strong view on specific performance is that it seems to me that you are conceding that specific performance is the appropriate remedy in certain cases. More cases:

          3a. Suppose that a soldier is in the middle of some military action, such that quitting would jeopardize the lives of his comrades-in-arms. (And suppose the cause is just). Then, we both agree, he lacks the right to abandon the fight. But would you say that he can be compelled at gunpoint to continue fighting? Or should he just be compelled to pay damages after the fact?

          3b. Suppose that a police officer is tasked with tracking down and neutralizing a gunman in a school. We both agree that he doesn’t, at that moment, have the right to quit. But would you say that he can forcibly be ordered into the building where the gunman is hiding?

          3c. A surgeon is in the middle of a case when he suddenly decides he’s lost interest in the case. No other surgeon can be called in on short notice to continue to the case. We agree that he doesn’t have the right to stop, but can he be forced to proceed?

          3d. An OR janitor is on call to clean the OR. He’s called in at 8 am on a Saturday morning (when he’s on call) to clean an OR suite for an emergency case. He decides he’d rather sleep in than clean. Assume that he’s the only available to do the case, and that the case depends on his getting to the OR to do it. Suppose, further, that failure to do the case in a timely way will lead to adverse health consequences for the patient. In this case, he doesn’t have the right to fail to go in, but can the hospital call the sheriff to force him in?

          One problem in all of these cases is that if the employment contract is at-will, then the employee really does have the right to abandon the job in all four cases, (3a)-(3d). The liability for any death or injury rests with the entity that proposed the contract, not the employee. As far as the employee is concerned, there is no room either for specific performance or money damages.

          On the other hand, suppose the contract itself specifies that in cases like (3a)-(3d), the employee is duty-bound to remain on the job. In that case, it’s obvious that the employee lacks the right to quit at will. But if we exclude specific performance as a remedy, then we have to accept the possibility that some workers will risk money damages to avoid work, in which case death or serious injury will occur.

          There are three obvious ways to avoid this outcome:

          (a) Set the level of money damages so high that the prospect of paying them would deter just about anyone from attempting to quit.
          (b) Write specific performance into the contract, and make it a condition of the contract.
          (c) Allow specific performance to be a remedy for breach in cases where someone’s life or physical health depends on another person’s performance of a work-related duty.

          Someone might reasonably argue that give the stakes, even (a) is too weak. In that case, we’re left with either (b) or (c) which, for practical purposes, are equivalent. But in these cases, I don’t think it makes sense to say that the person “has a right to quit,” or to insist that there is an inalienable right to personal services that overrides specific performance as a remedy.

          Incidentally, when I worked in the OR, (3d) came up with somewhat alarming frequency. Every now and then, a janitor would be on weekend emergency call for the OR but just plain old fail to show up when called in. Having non-janitorial OR staff do the duties of OR janitors was not a viable option; they weren’t trained to do the job. And having non-OR janitorial staff perform the duties was only marginally better, and occasionally, somewhat worse. They weren’t properly trained for it, either.

          The problem was typically handled on an ad hoc basis when it happened. In other words, the hospital operator would, on an ad hoc basis, start calling in janitors who didn’t have on-call duties that weekend, starting with those who lived closest to the hospital, and pleading/demanding that they show up to do the OR. As it happened, the janitor who happened to live closest to the hospital also happened to be the one most resigned to the idea that it was his lot in life to drop everything and come in when called. He was not paid any extra amount for doing that (beyond the usual time-and-a-half that anyone would have gotten, i.e., $21 an hour). Nor was the guy who failed to show up ever fired for it. By sheer chance, no emergency case was (to my knowledge) ever adversely affected by this dynamic, but it always seemed to me a matter of time before that happened. That said, since we were all at-will employees, none of us were personally liable for our failures to show up, even in emergency cases. The hospital was.

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