Brian Bix

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens; and since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories by other scholars, but forgive or overlook comparable deviations in their own theories. This article explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived can be justified in a theory of the nature of law by other theoretical gains. Additionally, the article considers whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as theorists talking past one another