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7 UCLA L. Rev. 27 (1960)
Verbal Disputes and the Legal Philosophy of John Austin

handle is hein.journals/uclalr7 and id is 29 raw text is: Verbal Disputes and the Legal Philosophy of John Austin1 HERBERT MORRIS* I Philosophers have been pointing out to us for some time that we are sorely tempted to make fools of ourselves by the language we use; that we are deceived and tied into knots by this slippery supposed servant of ours. In recent legal philosophy several of the profoundest contributors, men especially sensitive to language and its pitfalls, have put before us the view that a major deception has taken place in legal philosophy through a misunderstanding of language. They hold out to us hope that recognition of this deception will put an end to interminable disputes over the nature of law. Consider, for example, this statement by Felix Cohen: A definition of law is useful or useless. It is not true or false, any more than a New Year's resolution or an insurance policy.2 Or these statements of Glanville Williams: * . . tlt is propposed to examine what is perhaps the largest of jurisprudential con- troversies, namely, that as to the word Law. An attempt will be made to show that it is a verbal dispute, and nothing else.3 A scientific theory is an attempt to express facts in words or other symbols. But a theory of law or legal theory is not a statement of fact; it is a definition of words or a value-judgment as to what the law ought to be or do or both.4 * Assistant Professor of Philosophy and Lecturer in Law, University of California, Los Angeles. B.A., University of California, Los Angeles, 1951; LL.B., Yale Uni- versity, 1954; D. Phil., Oxford University, 1956. Member of the California Bar. 1 AUSTIN, LECTURES ON JURISPRUDENCE (5th ed. 1911) ; THE PROVINCE OF JURISPRU- DENCE DETERMINED AND THE USES OF THE STUDY OF JURISPRUDENCE (1954 ed.) (hereinafter cited as LECTURES and PROVINCE, respectively). 2 Cohen, Transcendental Nonsense and the Functional Approach, 35 CoLUM. L, REV. 809 at 835 (1935). 3 Williams, International Law and the Controversy Concerning the Word Law, 22 BRIT. YB. INT'L L. 146 (1945). For a revised version of this article see LAsLTT, PHILOSOPHY, POuTCS, AND SOCIETY 134 (1956). The form in which the quoted remark appears in the revised version is slightly different but may have serious implications: The position here taken will be that the problem (failing agree- ment upon the referent) is an unreal one: that it appears to be insoluble because it is verbal. 4 Williams, International Law and the Controversy Concerning the Word Law, 22 BRIT. YB. INT'L. L. 146, 159 (1945). This statement is repeated with only minor word changes on page 150 of the Laslett volume. It is this statement which makes one wonder about the seriousness of Williams' parenthetical statement failing agreement upon the referent and his disclaiming any discussion of what he calls a satisfactory test of municipal law. LASLETT, op. cit. supra note 3 at 135. Surely, Austin's test of municipal law is a part of the Austinian theory and we wish to know whether Williams holds the view that the test is a definition of words. [ 27 1

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