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Judging Positivism by Margaret Martin*
Published online by Cambridge University Press: 01 July 2015
Abstract
This review of Margaret Martin’s book, Judging Positivism, considers the three levels on which her book operates as an intricate study of the principal works of Joseph Raz; a challenging critique of legal positivism, and a thoughtful reflection on the potential of legal theory. The main focus of the review is Martin’s argument against Raz’s exclusive positivism, which proceeds by identifying a change in the premises or theses of Raz’s theory of law over the course of his different writings, and then making an accusation of inconsistency and incoherence against Raz. The review examines the nature of Martin’s accusation and suggests some possible responses to it. It also comments on the relationship between Martin’s assessment of Raz and her wider rejection of legal positivism, and on her related concerns for the potential of legal theory.
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- Copyright © Canadian Journal of Law and Jurisprudence 2015
References
1. Inconsistency relates to inconsistent positions over time in Raz’s different works (49) and also to vacillation between opposing positions within the same work (60, 93, 178). Incoherence relates to the incompatibility of different positions or theses Raz maintains at a particular time in his theorizing (26, 47, 60, 81). The second type of inconsistency may contribute to incoherence.
2. In the Preface Martin states, “I will argue that the non-normative ‘conceptual’ or ‘descriptive’ project rests on an extremely unstable foundation—the instability of which is best viewed from the inside of Raz’s complex account.” (viii).
3. Martin does engage with normative positivism briefly, when indicating that this would be the only resort available to Raz in order to maintain a positivist outlook in the face of problems with his sources thesis (8), but it is clear that she regards this as crossing the line into normative theories of law (57, 114-15), and thus requires a non-positivist theoretical outlook.
4. This involves recasting in The Authority of Law his initial portrayal of law so as to permit a rule plus exception model of adjudication (33-43).
5. This suggestion goes beyond an argument raised by Raz and discussed by Martin (24-25) that the possibility of exercising judicial discretion might be determined by the law, as a means of stabilizing the distinction between clear law and judicial discretion. No such stable distinction is required here.
6. Raz, Joseph, The Authority of Law (Oxford: Oxford University Press, 1979) at 51.Google Scholar
7. Postema, Gerald, “Law’s Autonomy and Public Practical Reason” in George, R, ed, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996) at 79.Google Scholar