Furthermore, Hart's points out that there is no essential difference between laws as it is presented by the early legal positivist and the threat of a gunman. It is true also that there is a sense in which the gunman has as ascendancy or superiority over the bank clerk, it lies in his temporary ability to make threat, which might well be sufficient to make the bank clerk do the particular thing he is told to do. It is Hart's argument that there is no other form of relationship of superiority and inferiority between the two men except this short-lived coercive one.
But for the gunman's purpose this may be enough; for the simple face-to-face order "Hand over those notes or I"ll shoot' dies with the occasion. The gunman does not issue to the bank clerk standing orders to be followed time after time by classes of persons. For Hart, if we are to use the notion of others backed by threats as explaining what laws are, we must endeavor to reproduce this enduring character which laws have. This continuing belief in the consequences of disobedience may be said to keep the original orders alive or standing though as we shall see later there is difficulty in analyzing the persistent quality of laws in these simple terms. In totality, Hart rejected the views of Austin and Bentham.
Hart went on to say that “some laws require man to act in certain ways or to abstain from acting, whether they wish or not”. But other legal rules are presented to society in quite different ways and have quite different functions. According to Hart, if law is essentially a command backed by force or by the threat of evil consequences, as we told by Bentham and Austin when the distinction between law and the command of a gunman is not much since both are commands backed by threats of evil consequences in case of failure to comply. The only noticeable difference here is that in the “case of a legal system, the gunman says it to that in the” case of a legal system, the gunman say it to a large number of people who are accustomed to the racket and habitually surrenders it.
Hart's conception of law also took exception to Bentham's sources of law. Bentham's idea of a legislator being somebody habitually obeyed was rejected and debunked by Hart. It is wrong, says Hart, to think of a legislature as a group of persons habitually obeyed: this simple idea is suited only to a monarch sufficiently long -lived for habit to grow up. What Hart means is that there is power-conferring law such as the one to empower some officials to perform a particular act. This kind of law, Hart maintained, cannot be accepted as a command. With this, there is a conviction that Hart's view of law is rooted on social habits.
Hart's concepts of law also indicated the difference between obligations, rules and other rules. For Jim Unah, they are associated with some prized feature of social life and its requirement may conflict with a person's interest”6. We can see that obligation becomes a kind of law if the social pressure inflicted on deviants includes physical sanctions. But where the pressure does not go up to this extent, then it is part of morality of the group. For society to move forward and survive the challenges of human existence there must be legal obligations and rules restricting violence, theft, killing, corruption and infidelity. These laws help and are necessary in view.
Also, in his concept of law, he discussed Justice in the administration of the law at the same time recognizes morality as part of the law and fairness done to every member of the society. The idea here is that the administration of law must ensure treating like cases alike. In other words, every member of the society must be treated under the principle of objectivity and impartiality in the administration of the implements and ensures that rules are applied only to what are genuinely cases of the rule or at least to minimize the risks of inequalities in human society.
At this juncture, we can say that Hart is a sophisticated positivist. But even this sophisticate version of legal positivism is though indisputably a remarkable improvement on those of Austin and Bentham; still it did not eliminate the inherent weakness of legal positivism. And if following Austin and Bentham, “we call such a supreme and independent person or a body of persons the sovereign, the laws of any country will be the general orders backed by threats which are issued either by the sovereign or subordinates in obedience to the sovereign”7. Against this background we want to look at law and morality, which according to Hart brings justice and harmony in human society. From here, we want to look at law and morality which according to Hart brings and harmony in the society.
