Chapter

Austin’s Theory: Criticism

Joseph Raz

in The Concept of a Legal System

Second edition

Published in print July 1980 | ISBN: 9780198253631
Published online March 2012 | e-ISBN: 9780191681417 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198253631.003.0003
Austin’s Theory: Criticism

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This chapter points out some of the difficulties raised by Austin's theory of a legal system. Section 1 explains how and why the illimitability thesis means that Austin's theory fails to explain an important part of constitutional law. Section 2 examines the way in which making personal obedience to the sovereign a condition for the existence of a legal system leads to a distorted picture of the duration of legal systems. The remaining two sections are concerned with the failure of the identity criterion.

Keywords: Austin; legal system; legal theory; constitutional law; illimitability thesis; personal obedience; sovereignty

Chapter.  6734 words. 

Subjects: Jurisprudence and Philosophy of Law

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