Austin, Hobbes, and Dicey

Canadian Journal of Law and Jurisprudence 24 (2):411-440 (2011)
  Copy   BIBTEX

Abstract

I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials

Other Versions

No versions found

Links

PhilArchive

    This entry is not archived by us. If you are the author and have permission from the publisher, we recommend that you archive it. Many publishers automatically grant permission to authors to archive pre-prints. By uploading a copy of your work, you will enable us to better index it, making it easier to find.

    Upload a copy of this work     Papers currently archived: 101,601

External links

  • This entry has no external links. Add one.
Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Analytics

Added to PP
2015-01-22

Downloads
2 (#1,899,170)

6 months
1 (#1,895,577)

Historical graph of downloads

Sorry, there are not enough data points to plot this chart.
How can I increase my downloads?

Author's Profile

David Dyzenhaus
University of Toronto, St. George Campus

Citations of this work

The Ambiguity of Force.David Dyzenhaus - 2016 - Ratio Juris 29 (3):323-347.

Add more citations

References found in this work

No references found.

Add more references