Portal de Periódicos da CAPES

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

2010; Wiley; Volume: 23; Issue: 1 Linguagem: Inglês

10.1111/j.1467-9337.2009.00441.x

1467-9337

Frederick Schauer,

Philosophical Ethics and Theory

Ratio JurisVolume 23, Issue 1 p. 1-21 Was Austin Right After All? On the Role of Sanctions in a Theory of Law FREDERICK SCHAUER, FREDERICK SCHAUER School of LawUniversity of Virginia580 Massie Road, CharlottesvilleVirginia 22903USAE-mail: schauer@virginia.edu A version of this paper was delivered as the 'Or 'Emet Lecture at the Osgoode Hall Law School, York University, Toronto, on March 12, 2009, and I am grateful for the formal comments of Craig Scott and the informal ones of Wil Waluchow on that occasion. Earlier versions were presented at the Faculty of Law, University of Girona, Spain, on 10 October, 2008, and at a "GALA" Seminar at the University of California, Berkeley, on 22 January 2009. Incisive comments by Brian Bix, Neil Duxbury, and Chris Kutz exposed many of my errors, some of which I hope have now been corrected.Search for more papers by this author FREDERICK SCHAUER, FREDERICK SCHAUER School of LawUniversity of Virginia580 Massie Road, CharlottesvilleVirginia 22903USAE-mail: schauer@virginia.edu A version of this paper was delivered as the 'Or 'Emet Lecture at the Osgoode Hall Law School, York University, Toronto, on March 12, 2009, and I am grateful for the formal comments of Craig Scott and the informal ones of Wil Waluchow on that occasion. Earlier versions were presented at the Faculty of Law, University of Girona, Spain, on 10 October, 2008, and at a "GALA" Seminar at the University of California, Berkeley, on 22 January 2009. Incisive comments by Brian Bix, Neil Duxbury, and Chris Kutz exposed many of my errors, some of which I hope have now been corrected.Search for more papers by this author First published: 12 February 2010 https://doi.org/10.1111/j.1467-9337.2009.00441.xCitations: 31 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat 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. Citing Literature Volume23, Issue1March 2010Pages 1-21 RelatedInformation