Repository | Book | Chapter

Austin's simple theory of law is limited in several ways as critics have shown ever since it was first conceived. Yet it served his intended purposes, that is, to define the relevant features of rule of law and subject law to the prevailing scientific paradigm that transferred reason into the positive legal systems. The definition of law as imperatives backed by coercion did not have a political meaning but was the preamble of a coherent systematization of law. By defining legal rules by reference to the express or tacit mandate of a single legislator the organisation and justification of which are irrelevant for jurisprudence within the framework of coercive enforcement allows Austin to separate legal rules from other types of norms. As such, the reference to sanctions and to the pre-legal concept of sovereignty were sufficient for this purpose. But Austin was concerned with much more than jurisprudence. He long thought about writing his major work embracing moral and legal questions and interconnecting them although he never completed the task. Since this was his general objective, the published lectures are thus incomplete if unrelated to morals, especially to positive morality that is different from morals yet relevant to identify valid law. In a way not far from Hart's account of the rule of recognition, Austin considered that stability of social interaction does not depend exclusively on external regularities of behaviour but on a common attachment to normative authority.

DOI: 10.1007/978-94-007-4830-9_15

Full citation: