A Critique of Austin
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Since at least the middle of the nineteenth century one of the most significant theories of analytical jurisprudence has been legal positivism. During the late eighteenth and early nineteenth centuries the work of Jeremy Bentham and John Austin developed the positivist analysis of law as well as a utilitarian normative jurisprudence or theory of legislation. In response to criticisms, during the twentieth century some philosophers of law developed and modified the positivist theory. Notable among modern proponents of a variety of legal positivism is the famous German philosopher and lawyer Hans Kelsen (1961). Although a severe critic of earlier versions of the theory, Professor Hart has largely defended a revised version of legal positivism. In The Concept of Law he primarily develops his own theory on the basis of a penetrating analysis and criticism of Austin’s version of legal positivism. Although this chapter is called “A Critique of Austin”, Hart does not criticize the theory precisely as Austin formulated it but considers it as modified where needed “in order to secure that the doctrine... is stated in its strongest form” (CL, 18). Although we shall question whether Hart has indeed taken the doctrine in its strongest form, this chapter is not an exercise in historical criticism but an analysis of a general type of legal theory that we shall call the Austinian theory after the chief target of Hart’s attack.
KeywordsLegal System Legal Rule Legal Limitation Procedural Rule Legal Philosophy
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