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The, By Frederick Schauer 's Paper, Was Austin Right After All?

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Frederick Schauer’s paper, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, has two central claims. First, the fact that law is primarily coercive (with the use of sanctions to ensure compliance) has been vastly overlooked in the wake of H.L.A Hart’s critique of John Austin’s work on legal positivism. Second, those who aim to study the philosophical nature of law would be better to examine what makes law truly important and distinctive rather than the necessary and mandatory features of law. In this paper, I will begin by describing Austin’s account of the nature of law. Then, I will explore Hart’s criticisms of Austin’s account that Schauer objects to before delving into Schauer’s argument. To conclude, I will …show more content…

He follows the rules because he sees them as a reason to modify his behaviour. The external point of view, however, describes a member of a group that merely observes rules and is only concerned with avoiding potential sanctions in the case of non-compliance. In his critique of Austin’s work, Hart believes that in making coercion and sanction a central component of the nature of law, Austin imagines a world filled with “bad men”, a term introduced by Oliver Wendell Holmes to describe a person who is more concerned with avoiding the adverse consequences of disobedience of the law (or using Hart’s terminology, a person taking an external point of view). However, Austin overlooks the fact that most people in a society could be considered “puzzled men”, which describes a person who is prepared to comply with the law, as long as they are told what they have to do (or again using Hart’s terminology, a person taking an internal point of view). Therefore, Hart maintains that Austin’s account of the nature of law overlooks the fact that most people take an internal point of view towards the rules. The majority of people do not take into account the sanctions that may befall them if they do not comply; they simply comply because they see the law as a reason to modify their behaviour. Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should

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