Oakeshott on Law

Going all the way back to his early essay “The Concept of a Philosophical Jurisprudence,” Oakeshott always saw an intimate connection between political philosophy and the philosophy of law. Steven Gerencser subjects Oakeshott’s philosophy of law to careful analysis in his essay “Oakeshott on Law.” He argues that there is a fundamental tension between the traditionalist conception of law implicit in Oakeshott’s antirationalist writings and the formalistic conception of law found in his later writings, especially “The Rule of Law.” In the former, laws possess authority insofar as they reflect the cus- tomary beliefs and sentiments of a people; in the latter, they possess authority only insofar as they are the product of a formal legislative procedure. Can these opposing views be reconciled? Gerencser suggests that they can and looks to Hegel and the positivist jurist Georg Jellinek as possible models for such a reconciliation.

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