Austin’s Methodology? His Bequest to Jurisprudence
This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.
KeywordsSubject Matter Supra Note Legal Theory Legal Reasoning Theoretical Viewpoint
I am grateful to Michael Freeman and the participants at the John Austin 150th Anniversary Conference, John Austin and his Legacy, UCL, December 2009, for much stimulating discussion and helpful comments on an earlier draft of this essay presented as a paper at that conference. I am particularly grateful to Stanley Paulson for further helpful discussion thereafter. This chapter was previously published in (2011) 70 Cambridge Law Journal 175 and is reproduced by the kind permission of Cambridge University Press.