Monday, October 23, 2006

John Austin - Victim of Misrepresentation

"Attitudes in the legal world to Austin had altered since late 19th century: He was a religion; today he seems to be regarded as a disease."

- Buckland WW, 1949

Do purely intellectual arguments account for such a revolution in attitudes?

Are the issues that are argued over always the same?

Sometimes as in Austin's case, a particular part of the writer's theoretical enterprise, and not necessarily that which is considered most fundamental, is treated in most later commentary as if it were his entire theoretical contributions.

Consistent misrepresentation of a jurist's ideas, where the misrepresentations are sufficiently widespread, assumes a proportion of myth.

Austin was a victim of this kind of misrepresentation (Wayne Morrison 1982)

If we are to try to understand how legal philosophy has developed and how its debates and disputes have been formed and conducted, the answers cannot be found entirely in the logic of philosophical arguments. They are in part at least, located in the wider context of ideas and activities in which theories are developed and evaluated.

The approach to understanding legal philosophy is to understand the significance of substantive content of legal philosophy's debates about the nature of law. It argues, however, that that content is to be understood not as timeless but as a response to the conditions and problems existing at particular historical moments in Western legal development.