Austin, Hobbes, and Dicey

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.