David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Ratio Juris 23 (1):1-21 (2010)
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.
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References found in this work BETA
H. L. A. Hart (1994). The Concept of Law. Oxford University Press.
John R. Searle (1969). Speech Acts: An Essay in the Philosophy of Language. Cambridge University Press.
John Finnis (1980/1979). Natural Law and Natural Rights. Oxford University Press.
Joseph Raz (1975). Practical Reason and Norms. Hutchinson.
Jules L. Coleman (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford University Press.
Citations of this work BETA
Ludvig Beckman (2014). The Subjects of Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law. Ratio Juris 27 (2):252-270.
Robert C. Hughes (2013). Law and Coercion. Philosophy Compass 8 (3):231-240.
Kenneth M. Ehrenberg (2013). Functions in Jurisprudential Methodology. Philosophy Compass 8 (5):447-456.
Damiano Canale (2014). Is Law Grounded in Joint Action? Rechtstheorie 45 (3):289-312.
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