Law Beyond Fear and Coercion

Is Fear Enough? Hart and the Limits of Legal Coercion

Freya Arden

When we think of law, what often comes to mind is punishment, sanctions and fear. Yet H.L.A Hart rejects this coercive view, arguing that such features are not central to the nature of modern legal systems. Hart insists that his limited emphasis on these elements is not a shortcoming, but a deliberate and compelling strength of his legal positivist theory, arguing against coercion-based accounts advanced by theorists such as Austin, Kelsen and Holmes. Hart alternatively argues that the law requires a more nuanced framework. As this paper explores, Hart’s framework is grounded in social acceptance and institutional practice which transforms our understanding of legal mechanisms to better reflect society. Furthermore, this paper examines how, at the core of Hart’s sociological and descriptive theory is the distinction between primary and secondary rules, respect of authority underpinned by internalised norms,  and collective recognition of authority.  This shifts law from a coercive tool to a system that offers a facilitative, rather than purely punitive, conception of law. Additionally, Hart also emphasises the role of judges to interpret the law and apply it to current situations ensuring the continued relevancy of the theory as times change. However, technological advancements and artificial intelligence may challenge the relevance of Hart’s model, forcing the question as to whether Hart’s legal positivism can adapt to systems where internal acceptance may no longer be a human trait.

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