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.