Assess Frederick Schauer's Attempt in 'Was Austin Right After All?' to Revive John Austin's Command Theory and Defend it Against H.L.A. Hart's Many Criticisms. How Successful is Schauer's Attempt?

Abstract

Since it is expounded, John Austin’s command theory of law has been subject to debate and criticism of thinkers affiliated to both Naturalist and Positivist traditions. Among positivists, HLA Hart, being his most ardent critic, has scrutinized various aspects of his theory. Hart pointed out that Austin while placing an exaggerated emphasis on the role of sanctions in securing compliance with law, has obscured the difference between ‘being obliged’ and ‘being under an obligation’. Fredrick Schauer in “Was Austin Right Afterall?” has attempted to revive Austin’s theory against Hart’s criticism. He, inter alia, argues that Austin’s account of law is descriptive and therefore closer to reality as compared to Hart’s who puts forward rather a conceptual account of law. From an analytical standpoint, this essay seeks to refute Schauer’s claim. It maintains that Schauer’s analysis of Hart’s theory and criticism is tainted with misconceptions and therefore, he has failed in his attempt to revive Austin’s theory.