Austin’s Methodology? His Bequest to Jurisprudence
Cambridge Law Journal, Vol. 70, No. 1, 2011
Posted: 10 Sep 2010
Date Written: September 9, 2010
This essay explores the disengaged state of contemporary anglophone legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. However, the common view as recently stated in Allan Hutchinson’s book, that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an initial virtuous engagement with theoretical rivals, but the exclusivity of Austin’s field of inquiry then precludes further potentially beneficial engagement. The process of engagement and disengagement revolves around Austin’s central insight on the distinction between the existence of law and law’s merit. This is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking (including his own clearly expressed doubts) are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. Primarily, this would encompass greater engagement between legal theorists themselves. It would also offer the opportunity for engagement with other prospective stakeholders in legal theory, and place legal theory in a position to deal with new forms of legal phenomena in the global context.
Keywords: John Austin, contemporary legal theory, theoretical disagreement, province of jurisprudence, is/ought divide, legal reasoning
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