AUSTIN'S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE

Abstract

This essay explores the disengaged state of contemporary legal theory and John Austin’s contribution to the foundation of modern jurisprudence, seeking to demonstrate the intimate connection between the two themes. The common view that Austin is responsible for a distinctive methodology of analytical jurisprudence is challenged. Instead, through a general consideration of theoretical contestability and disagreement, the investigation is focused on the particular manner in which Austin sought to establish the province of jurisprudence. This reveals an exclusivity in Austin’s field of inquiry that precludes potentially beneficial engagement with theoretical rivals, revolving around Austin’s central insight on the distinction betweeen the existence of law and law’s merit. His insight is critically reassessed in order to offer a fresh perspective on the role of legal reasoning and the nature of the is/ought divide within a general theory of law. Other aspects of Austin’s thinking are regarded as an overlooked inspiration for a fundamentally different direction for legal theory. This would encompass greater engagement between legal theorists themselves; would offer opportunity for engagement with other prospective stakeholders in legal theory; and position legal theory to deal with new forms of global legal phenomena.