John Austin and Constructing Theories of Law

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced in many or most contemporary legal systems, or the way that it is perceived by lawyers, judges, and citizens who are participants in those systems. However, contemporary legal theories also seem to fail to fit current practice in significant ways. The question is one of the power of the insights a theory brings, and whether it is worth whatever “distortions” it requires. For one generation, the insights of Austin’s (or Kelsen’s or Raz’s) theory might seem central, and the deviations trivial, while for a later generation, the insights might seem small or hard to accept, while the deviations seem fatal. Theory construction, especially where the theory is not anchored by falsifiable predictions, is often more a matter of persuasiveness, rather than a matter of truth. And if John Austin’s theory seems less sustainable than it once did, that may say as much about us, and what concerns us, as it does about his theory.

Original languageEnglish (US)
Title of host publicationLaw and Philosophy Library
PublisherSpringer Science and Business Media B.V.
Pages1-13
Number of pages13
DOIs
StatePublished - 2013

Publication series

NameLaw and Philosophy Library
Volume103
ISSN (Print)1572-4395
ISSN (Electronic)2215-0315

Bibliographical note

Publisher Copyright:
© 2013, Springer Science+Business Media Dordrecht.

Keywords

  • Contemporary Legal Theorist
  • Legal Positivism
  • Legal System
  • Legal Theory
  • Supra Note

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