Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-23T06:38:45.608Z Has data issue: false hasContentIssue false

2 - Positivism, Realism and Sources of Law

from Part I - Fundamentals

Published online by Cambridge University Press:  21 January 2021

By
Leslie Green
Edited by
Torben Spaak  and
Patricia Mindus
Torben Spaak
Affiliation:
Stockholms Universitet
Patricia Mindus
Affiliation:
Uppsala Universitet, Sweden
Get access

Summary

Taking the essential thesis of legal positivism to be that all law is positive law, that all law has sources, Green considers the relationships between legal positivism and ‘its closest cousin’, legal realism, focusing mainly on American legal realism. He looks at why legal realists disagree with legal positivists about the role of legal rules in explaining judicial decision-making. Noting that positivists and realists agree that law is constituted by social facts, that judges sometimes make law, and that law is morally fallible, he locates the point of disagreement in their different understandings of the boundary-lines between law and non-law. Green’s idea is that, unlike positivists, realists believe that a significant number of sources of law are only permissive sources – i.e. sources which judges are permitted, but not required, to use. These can sometimes be outweighed by considerations of policy, justice or the equities of the case, etc., which explains why realists can hold that law is so indeterminate as to undermine the causal efficacy of legal rules, while sharing the positivist view that all law has sources.

Keywords

source of lawrealismpositivismindeterminacydisplacement of jurisprudence
Type
Chapter
Information
The Cambridge Companion to Legal Positivism , pp. 39 - 60
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Cohen, F. 1935. ‘Transcendental Nonsense and the Functional Approach’. Columbia Law Review 35: 809–49.CrossRefGoogle Scholar
Dworkin, R. 1977. ‘No Right Answer?’ In Hacker, P. M. S. and Raz, J. (eds.). Law, Morality, and Society: Essays in Honour of H.L.A. Hart. Oxford University Press.Google Scholar
Dworkin, R. 1986. Law’s Empire. Harvard University Press.Google Scholar
Dworkin, R. 2008. Justice in Robes. Harvard University Press.Google Scholar
Finnis, J. 2011. Natural Law and Natural Rights. 2nd ed. Oxford University Press.Google Scholar
Gardner, J. 2001. ‘Legal Positivism: 5½ Myths’. American Journal of Jurisprudence 46: 199–227.Google Scholar
Green, L. 1999. ‘Positivism and Conventionalism’. Canadian Journal of Law and Jurisprudence 12: 35–52.Google Scholar
Green, L. 2008. ‘Positivism and the Inseparability of Law and Morals’. New York University Law Review 83: 1035–58.Google Scholar
Green, L. and Adams, T. 2019. ‘Legal Positivism’. In Zalta, E. N. (ed.). The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/win2019/spr2018/entries/legal-positivism.Google Scholar
Greenberg, M. 2014. ‘The Moral Impact Theory of Law’. Yale Law Journal 123: 1288–1342.Google Scholar
Halevy, E. 1934. The Growth of Philosophical Radicalism. Faber.Google Scholar
Hart, H. L. A. 1983 Essays in Jurisprudence and Philosophy. Oxford University Press.Google Scholar
Hart, H. L. A. 2012. The Concept of Law. 3rd ed. Introduction by Green, L., eds. Bulloch, P. A. and Raz, J.. Oxford University Press.CrossRefGoogle Scholar
Holmes, O. W. 1920. ‘The Path of the Law’. In Holmes, O. W.. Collected Legal Papers. Harcourt, Brace & Howe.Google Scholar
Kelsen, H. 1967. Pure Theory of Law. 2nd ed. Trans. Knight, M.. University of California Press.Google Scholar
Kelsen, H. 1945. General Theory of Law and State. Trans. Wedberg, A.. Russell and Russell.Google Scholar
Leiter, B. 2007. Naturalizing Jurisprudence: Essays on Legal Realism and Naturalism in Legal Philosophy. Oxford University Press.CrossRefGoogle Scholar
Llewellyn, K. N. 1931. ‘Some Realism about Realism: Responding to Dean Pound’. Harvard Law Review 44: 1222–1264.Google Scholar
Llewellyn, K. N. 1935. ‘Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed’. Vanderbilt Law Review 3: 395–406.Google Scholar
Murphy, M. C. 2006. Natural Law in Jurisprudence and Politics. Cambridge University Press.Google Scholar
Quine, W. V. O. 1969. Ontological Relativity and Other Essays. Columbia University Press.CrossRefGoogle Scholar
Radin, M. 1925. ‘A Theory of Judicial Decision, or How Judges Think’. American Bar Association Journal 11: 357–62.Google Scholar
Raz, J. 1979. The Authority of Law: Essays on Law and Morality. Oxford University Press.Google Scholar
Raz, J. 2009. Between Authority and Interpretation: On the Theory of Law and Practical Reason. Oxford University Press.CrossRefGoogle Scholar
Schauer, F. 1999 ‘Positivism as Pariah’. In George, R. P. (ed.). The Autonomy of Law: Essays on Legal Positivism. Oxford University Press: 31–47.Google Scholar
Waluchow, W. J. 1994. Inclusive Legal Positivism. Oxford University Press.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×