23 Ratio Juris 1 (2010)

handle is hein.journals/raju23 and id is 1 raw text is: 


Ratio Juris. Vol. 23 No. 1 March 2010 (1-21)


Was Austin Right After All?

On the Role of Sanctions in a

Theory of Law*


FREDERICK SCHAUER


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.


Jurisprudence  contains  few  axioms, but  one  of them  may  be  that H.L.A.
Hart's critique of John  Austin's brand  of legal positivism was  conclusive.
In arguing  in The Concept of Law (Hart 1994) that Austin's reduction of legal



* 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.

D 2010 The Author. Journal compilation D 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden 02148, USA.

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