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Rosati on Schauer on Austin

By Lawrence Solum

Check out Connie Rosati's Jotwell post on Fred Schauer's Was Austin Right After All? On the Role of Sanctions in a Theory of Law. Here is a taste:

Schauer maintains that although Austin erred in overlooking the non-coercive aspects of law, those who have apparently been influenced by Hart may err in dismissing the importance of sanctions or coercion. He suggests at least two difficulties for Hart?s critique of Austin. First, he argues, in a modern regulatory legal system, citizens may, for good reason, experience law as more coercive than Hart appreciated. Insofar as a theory of law should capture the most salient features of a modern legal system, insofar as descriptive or empirical adequacy is among the conditions on an adequate theory of law, Hart?s view would seem to do worse than Austin?s. Of course, many legal philosophers would reject such empirical considerations as irrelevant, arguing that a theory of law should concern itself only with the ?essential features? of law?those that would figure in an analysis of the concept of law. Sanctions and coercion may be common to actual legal systems, but they aren?t essential. To take such a position is, however, to choose sides in a deeper debate as to the purpose of a theory of law, Schauer stresses, and it is far from obvious that theories of law should concern themselves with the concept of law rather than with common features of paradigmatic legal systems.

Full post as published by Legal Theory Blog on June 08, 2010 (boomark / email).