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International Studies in Phenomenology and Philosophy

Book | Chapter

189239

What is in a habit?

Michael Rodney

pp. 185-214

Abstract

Lying at the centre of Austin's model of sovereignty was the idea of habitual obedience to the commands attributed to the sovereign. In Hart's rejection of Austin's model and his development of the internal point of view to explain adherence to legal rules, the qualities that he associated with the term "habit" comprised those of the regularity of behaviour and predictability of conduct which were unreflective, effortless or engrained. The purpose of the chapter is to revisit this controversy. Firstly, it reveals the important place of habit in explanations of human existence found in the writings of philosophers, psychologists and sociologists. Secondly, to highlight that importance, the dramatic consequences that are likely to follow an acute withdrawal of familiar repetitive practices are considered. Thirdly, by way of appropriate examples, it suggests that the relationship between habit and rule following is a complex one and that the former is present in the operation of the latter even where legal officials are concerned. Fourthly, it returns to Hart's critique of Austin. It suggests that Austin's writings are more compatible with a subtler position concerning habit than that of Hart's and that the latter's dissociation of the critically reflective stance from habit in the context of the operation of the internal point of view is not credibly sustainable. The chapter concludes by suggesting that there has been a lack of appreciation in legal theory that needs to be corrected of the pervasive role of habit in the operation of the law.

Publication details

Published in:

Freeman Michael, Mindus Patricia (2013) The legacy of John Austin's jurisprudence. Dordrecht, Springer.

Pages: 185-214

DOI: 10.1007/978-94-007-4830-9_10

Full citation:

Rodney Michael (2013) „What is in a habit?“, In: M. Freeman & P. Mindus (eds.), The legacy of John Austin's jurisprudence, Dordrecht, Springer, 185–214.