The modified positivism expounded by Hart is no different from the positivism found in Austin’s writings

Positivism is a theoretical standard of law that is based solely on political power expressed through the Sovereign, that attempts to depict the concept of law. It considers law a science, that should not have to answer for its actions with reasons. In essence it is represents the independence of law with absolutely no connection to it’s merits, regardless if they are positive or negative, and believes that it will be obeyed solely through obligation that arises from fear of non-compliance.

Two prominent figures which are Synonymous with Positivism are John Austin and H.L.A Hart. Both stem from the traditional positivist view that law is a ‘logical system’, but unlike Austin, Hart expounded a modified version, that integrated moral values into an otherwise sterile legal structure. For this reason, there exists huge differences between Austin’s writings based on the traditional positivism and Hart’s modified version, though both relate back to the original form of positivism as their foundations.

John Austin believed that laws were a series of commands issued by the highest body in power (being the sovereign) which did not have to answer to any other authority. Put simply, his whole ideology was based on the "command of the sovereign being backed by sanctions". The command denoted authority and coercion of the sovereign, which was the highest possible power, holding conformity, obedience and a universal standard of behavior through the use of sanctions which imposed consequences for non-compliance. Despite personal feelings, this system made the population obligated to act in certain ways. During his lectures in London on jurisprudence he "was especially concerned to rid law and the philosophy of law, of empty and portentous metaphysics, and to separate law from morals", for he believed that moral judgment could not be established as could statements of fact, because there was no rational argument or evidence to be used as proof. It was his belief that for justice to have any definite meaning, it needed conformity with the law. Thus, appealing to emotions was not appropriate for laws, only logical reasoning would create a stable society. For him, if a law was reasonably logical, regardless if it was not based on social needs or desires, then that law would be a ‘just’, and justice and habitual obedience was all he was concerned with, not the quality of the laws.

Hart on the other hand has built his system of modified positivism based on traditional positivism and his criticisms of Austin’s ideological failures. He believes "what eluded Austin in his science of jurisprudence was the key which he describes as primary and secondary rules". This ‘key’ is the major basis of Harts writings, and distinguishes his method for it seeks to create a distinction in the structure of the legal system where by "to achieve a better understanding between the differences in law - coercion - and morality". For Hart, a viable legal system would be one that not only enforced its power as with Austin’s, but also ascertained certain moral requirements as to "offer members of the system mutual forbearance’s", so that laws would be followed by the people’s choice, leading thus to a more viable legal system.

This so called ‘Key’ as Hart calls it, consists of two sections. The primary section (constitutionally based) is the main body of Austin’s ideology. This consists of the notion of obligation, demand for authority, pressure upon deviation, and is all set by one major body of power. Alone though, "Hart argues that such primary duty-imposing rules cannot, at any level of organisation beyond the extremely simple, exist satisfactorily in isolation". For this reason, he created a second set of rules (court based law), which allowed for power to be delegated to officials in order for them to interpret the meaning of primary obligations; enable these delegates to adjudicate on breaches of obligation; and ultimately enforce the obligation of these rules to suit different situations. This was all incorporated in his ‘rules of recognition’, ‘rules of change’ and ‘rules of adjudication’. Both these rules together achieve in Hart’s view a more ‘just’ and viable society. While the primary rules are appointing duties, the secondary rules allow for the initiation, interpretation, elimination, and alteration of all or any of the current rules to make them more viable to society and its needs, which is as important to society as the development of the wheel. In a way, it can be said that Hart was attempting to make a transition from Austin’s pre-legal system (according to Hart), to a legal system (though this can be debated depending on each persons view point). His fundamental point is that there needs to be an interaction of rules which creates the substance of law, as opposed to Austin’s belief that only one main power should exist.

Another of Hart’s theories that did not coincide with Austin’s was his ‘rules of change’. It was his belief that no law should remain static, and rightly so. Despite what Austin believed, laws are not always right, and need to be removed because they can become redundant, or new problems may arise causing a need to create new obligations to combat them. These changes are not only brought on by social beliefs and morals, but because of technology as well which is not acknowledged by Austin.

As Hart acknowledged (though Austin didn’t), "Natural languages like English are….irreducibly open textured and our attempts to devise particular rules to regulate specific factual situations are inevitably handicapped by our relative indeterminacy of aim". Because of this ‘indeterminacy of aim’ (through such things as dual meanings to words), it is necessary to use a party that is specifically versed in laws (like court judges) to actually apply them in an attempt achieve the intended outcome, and thus be more ‘just’. Without this, how can one claim to be applying the law to the facts when neither the law nor the facts is objectively knowable with absolute certainty. By acknowledging the unclear nature of language and the legal system’s need for certainty which could only be achieved through interpretation, Hart brought to light the contradictory nature of Austin’s judicial system.

Another noticeable difference between these two figures, is that Austin believed quiet immovably that all humans were logical as well as rational all the time, and that they should be held responsible for their actions. Hart on the other hand looked at ways of protecting minority groups such as children, and those who were mentally unfit to make fully functional and logical decisions, from the rules set for the majority. Austin was extremely dogmatic in his beliefs that society should and would bend to the whims of his system. While on the other hand, Hart attempted to make his legal structure bend somewhat more towards the needs of the people, so that they would be more inclined to support his ideals not under the pressure of a gun being shoved into their faces as Austin attempted to do, but by allowing society to relate to laws because they were somewhat based on morals.

Hart agreed that Austin’s positivism was appropriate at the time of its conception, but as time progressed, it needed to be changed. So he took it upon himself to achieve a modified and improved legal theory. Accepting that the idea of coercive sovereign command formed an obvious part of the law, he went about creating the second set of rules to make the first more appropriate. Even though he broke away dramatically from the initial intentions of traditional positivism, which distinguished his system from that of Austin’s, he did not intend to create a new system, but instead restate the classical positivist tradition in a contemporary form that would carry it through into future years. To say that his writings were no different to that of Austin’s would be incorrect. Some similarities lye between the two, particularly the basic foundation of positivism, but that is about all. Yes, much of his work deals with Austin’s failures, but his beliefs in what law was meant to portray was so dramatically different that any repairs he attempted to make on the out of date system only broadened the gap between them.

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