Was Austin Right after All? On the Role of Sanctions in a Theory of Law

21 Pages Posted: 15 Feb 2010

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

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Abstract

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish.

Suggested Citation

Schauer, Frederick, Was Austin Right after All? On the Role of Sanctions in a Theory of Law. Ratio Juris, Vol. 23, Issue 1, pp. 1-21, March 2010. Available at SSRN: https://ssrn.com/abstract=1552568 or http://dx.doi.org/10.1111/j.1467-9337.2009.00441.x

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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