Article contents
Is Post-Positivism Possible?
Published online by Cambridge University Press: 06 March 2019
Extract
In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.
- Type
- Research Article
- Information
- German Law Journal , Volume 12 , Issue 2: Special Issue - The Many Fates of Legal Positivism , 01 February 2011 , pp. 663 - 692
- Copyright
- Copyright © 2011 by German Law Journal GbR
References
1 See MacCormick, Neil, Institutions of Law: An Essay in Legal Theory (2007) [hereinafter MacCormick, Institutions]; Neil MacCormick, H.L.A. Hart (2007) [hereinafter MacCormick, Hart].Google Scholar
2 See, e.g., Greenawalt, Kent, Too Thin and Too Rich: Distinguishing Features of Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 1, 8 (Robert P. George ed., 1996) (noting use of “positivism” label for “summary condemnation”); Frederick Schauer, Positivism as Pariah, in The Autonomy of Law, Essays on Legal Positivism 31, 35; Wilfrid J. Waluchow, The Many Faces of Legal Positivism, 48 U. Toronto L.J. 387, 390 (1998) (discussing “meaningless[ness]” of debates within legal positivism). Much of twentieth-century positivist legal theory has sought to redeem the term from its use as an epithet. See, e.g., H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615–21 (1957) (discussing post-World War II critique of legal positivism by Radbruch, among others); Anthony Sebok, Legal Positivism in American Jurisprudence 2, 23 (1998) (discussing derogatory use of “positivist” label).Google Scholar
3 See MacCormick, Neil & Weinberger, Ota, An Institutional Theory of Law: New Approaches to Legal Positivism (1986) (identifying MacCormick's work, in contrast to Weinberger's, as in the British tradition of legal positivism).Google Scholar
4 These decades were marked, for example, by the publication of monographs on legal positivism and many symposia and anthologies on the topic. See, e.g., Tom Campbell, The Legal Theory of Ethical Positivism (1996); Hart's Postscript: Essays on the Postscript to The Concept of Law (Jules Coleman ed., 2001) [hereinafter Hart's Postscript]; Ruth Gavison, Issues in Jurisprudence: The Influence of H.L.A. Hart (1987) [hereinafter Issues in Jurisprudence]; The Autonomy of Law: Essays on Legal Positivism (Robert P. George ed., 1996) [hereinafter The Autonomy of Law]; Positivism Today (Stephen Guest ed., 1996); Kramer, Matthew, In Defense of Legal Positivism: Law Without Trimmings (1999); Postema, Gerald J., Bentham and the Common Law Tradition (1986); Sebok, , supra note 2; Wilfrid Waluchow, Inclusive Legal Positivism (1994); Symposium: The Hart-Fuller Debate At Fifty, 83 N.Y.U. L. Rev. 993 (2008). Many other instances of second-order accounts of legal positivism by these authors and others appeared as stand-alone articles and are cited in the footnotes to this Section.Google Scholar
5 See Lacey, Nicola, Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 Tex. L. Rev. 945, 947–50 (2006).Google Scholar
6 See Dworkin, Ronald M., The Model of Rules, 35 U. Chi. L. Rev. 14, 17–18 (1967) describing as the “skeleton” of legal positivism as three “central and organizing propositions.”Google Scholar
7 See infra notes 44–45 and accompanying text.Google Scholar
8 See, e.g., Coleman, Jules, Incorporationism, Conventionality, and the Practical Difference Thesis, in Hart's Postscript, supra note 4, at 99; David Dyzenhaus, Positivism's Stagnant Research Programme, 20 Oxford J. Legal Stud. 703 (2000); Finnis, John, On the Incoherence of Legal Positivism, 75 Notre Dame L. Rev. 1597 (2000); Klaus Fueßer, Farewell to ‘Legal Positivism': The Separation Thesis Unravelling, in The Autonomy of Law, supra note 4, at 119, 152; Gerald J. Postema, Coordination and Convention at the Foundations of Law, 11 J. Legal Stud. 165 (1982).Google Scholar
9 See, e.g., Brian, Bix, On the Dividing Line Between Natural Law and Legal Positivism, 75 Notre Dame L. Rev. 1613, 1624 (2000) (suggesting that positivists differ from one another as much as they differ from natural-law theorists); Timothy A.O. Endicott, Herbert Hart and the Semantic Sting, 4 Legal Theory 283 (1998) (describing overlap of assumptions between Hart and Dworkin); Philip Soper, Searching for Positivism, 94 Mich. L. Rev. 1739 (1996) (review of Waluchow, supra note 4); Jeremy Waldron, Normative (or Ethical) Positivism, in Hart's Postscript, supra note 4, 410.Google Scholar
10 See, e.g., Adler, Matthew D., Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism, 75 Fordham L. Rev. 1671 (2006) (exploring nature of the conventions regarding a rule of recognition that must exist in the U.S. constitutional order); Jules Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982); Kramer, , supra note 4; Andrei Marmor, The Separation Thesis and the Limits of Interpretation, 12 Can. J.L. & Juris. 135 (1999).Google Scholar
11 See, e.g., Schauer, Frederick & Wise, Virginia J., Legal Positivism as Legal Information, 82 Cornell L. Rev. 1080, 1087–88, 1092 (1997); Schauer, Frederick, The Limited Domain of the Law, 90 Va. L. Rev. 1909, 1951–54 (2004).Google Scholar
12 See, e.g., Dyzenhaus, David, The Demise of Legal Positivism?, 119 Harv. L. Rev. F. 112 (2006); George, Robert P., Natural Law and Positive Law, in The Autonomy of Law, supra note 4, at 321; Jeffrey D. Goldsworthy, The Self-Destruction of Legal Positivism, 10 Oxford J. Legal Stud. 449 (1990); Green, Leslie, Positivism and Conventionalism, 12 Can. J. L. & Jurisprudence 35 (1999); Postema, Gerald J., Jurisprudence as Practical Philosophy, 4 Legal Theory 329 (1998); Soper, Philip, Law's Normative Claims, in The Autonomy of Law, supra note 4, at 215.Google Scholar
13 See, e.g., Brian, Bix, Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate, 12 Can. J.L. & Juris. 17 (1999) (tracing legal positivism to Hobbes); Owen M. Fiss, The Varieties of Positivism, 90 Yale L.J. 1007 (1981); Gardner, John, Legal Positivism: 5 1/2 Myths, 46 Am. J. Juris. 199 (2001); MacCormick, Neil, A Moralistic Case for A-Moralistic Law?, 20 Val. U. L. Rev. 1 (1985); Perry, Stephen, Hart's Methodological Positivism, in Hart's Postscript, supra note 4, at 311; Kevin Toh, Hart's Expressivism and His Benthamite Project, 11 Legal Theory 75 (2005); Twining, William, General and Particular Jurisprudence—Three Chapters in a Story, in Positivism Today, supra note 4, at 119; Jeremy Waldron, All We Like Sheep, 12 Can. J. L. & Juris. 169 (1999).Google Scholar
14 See, e.g., Beyleveld, Deryck & Brownsword, Roger, Normative Positivism: The Mirage of the Middle Way, 9 Oxford J. Legal Stud. 462, 462 (1989) (concluding that modern “normative” positivism is “incoherent”); David Dyzenhaus, The Genealogy of Legal Positivism, 24 Oxford J. Legal Stud. 39 (2004); Halpin, Andrew, The Methodology of Jurisprudence: Thirty Years off the Point, 19 Can. J. Law & Juris. 67 (2006).Google Scholar
15 See, e.g., Allan, James, A Modest Proposal, 23 Oxford J. Legal Stud. 197 (2003); Leiter, Brian, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris. 17 (2003); Lyons, David, Review, Principles, Positivism, and Legal Theory, 87 Yale L.J. 415, 424–25 (1977); Moore, Michael S., Hart's Concluding Scientific Postscript, 4 Legal Theory 301 (1998); Schauer, , supra note 2, at 31; Brian Z. Tamanaha, The Contemporary Relevance of Legal Positivism, 32 Aust. J. Leg. Phil. 1 (2007).Google Scholar
16 See, e.g., Krygier, Martin, The Concept of Law and Social Theory, 2 Oxford J. Legal Stud. 155, 155–67 (1982); Lacey, , supra note 5, at 947–49; Andrew Lewis, Legal Positivism—Some Lessons from Legal History, in Positivism Today, supra note 4, at 65, 67–73; Philip Schofield, Jeremy Bentham and Nineteenth-Century English Jurisprudence, 12 J. Legal Hist. 58, 61–75 (1991); Twining, , supra note 13, at 119, 123–31.Google Scholar
17 See, e.g., Beyleveld, Deryck & Brownsword, Roger, The Practical Difference Between Natural-Law Theory and Legal Positivism, 5 Oxford J. Legal Stud. 1, 31 (1985) (arguing that “the ultimate reason for choosing between natural-law theory and positivism is not the moral reason but the reason of theoretical superiority”).Google Scholar
18 Dworkin characterized his theory as a “general attack on positivism.” Dworkin, supra note 6, at 20; see also Dyzenhaus, supra note 8, at 712, 716 (noting that a “Dworkinian” judge would not be a legal positivist). But others have argued that Dworkin is nevertheless a legal positivist in some sense. See, e.g., Leiter, supra note 15, at 27; Perry, supra note 13, at 317; Stephen Perry, The Varieties of Legal Positivism, 9 Can. J.L. & Juris. 361, 361 (1996).Google Scholar
19 See, e.g., Green, Leslie, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. Rev. 1035, 1035–36 (2008); Postema, Gerald, Law's Autonomy and Public Practical Reason, in The Autonomy of Law, supra note 4, at 79, 80.Google Scholar
20 See, e.g., Coleman, , supra note 10, at 140; Gardner, supra note 13, at 199.Google Scholar
21 This point is related to but distinct from the so-called separability thesis. Voluminous citations would be required to support this assertion fully and specifically; in identifying these points of agreement, I have drawn on the sources in surrounding footnotes.Google Scholar
22 See Finnis, John, Natural Law and Natural Rights 14 (1980) (describing law as “a significantly differentiated type of social order”).Google Scholar
23 Commitment to this position does not imply a normative or descriptive aim, a particular mode of argument or description, or any particular characterization of the acts in question. Since Hart, this aspect of the positivist position has probably most often been discussed in terms of the following of rules, but work on rule following is best understood as a particular way of discussing the reason-seeking function of law.Google Scholar
24 Hart, , supra note 2, at 599, 601 n.25.Google Scholar
25 See, e.g., Joseph, Raz, Practical Reason and Norms 35–48 (1990).Google Scholar
26 See Schauer, , supra note 11, at 1915–16.Google Scholar
27 Hart, H.L.A., The Concept of Law 94 (1994).Google Scholar
28 See infra notes 99–107 and accompanying text.Google Scholar
29 See Hart, H.L.A., Comment, in Issues in Jurisprudence, supra note 4, at 35, 39; but see Stephen R. Perry, Interpretation and Methodology in Legal Theory, in Law and Interpretation: Essays in Legal Philosophy 97, 120 (Andrei Marmor ed., 1995) (arguing that Hart saw his theory of law as the only “possible conceptual analysis of law”). Joseph Raz makes this point often. See, e.g., The Problem About the Nature of Law, 21 U. W. Ontario L. Rev. 203, 218 (1982); On the Nature of Law [hereinafter Raz, On the Nature], in Between Authority and Interpretation: On the Theory of Law and Practical Reason [hereinafter Raz, Between] 91, 97–98 (2009) (“While the law has many essential features we are not aware of all of them… . The study of jurisprudence is never-ending, for the list of the essential properties of law is indefinite.”). See also Finnis, supra note 22, at 17; Kramer, supra note 4, at 216–27.Google Scholar
30 See supra note 16.Google Scholar
31 Some second-order accounts of positivism have explored the relationship between “external” and “internal” legal theory, and the relationship between this distinction and the necessarily partial nature of legal theory. See, e.g., Perry, supra note 29. Others have explored the contexts in which legal theory is produced. See, e.g., Lacey, supra note 5, at 947–48; Schofield, supra note 16, at 69–70, 82, 85. But the link between these two topics has been much less scrutinized.Google Scholar
32 See Perry, , supra note 13; Perry, supra note 18; Perry, supra note 29.Google Scholar
33 Perry, , supra note 13, at 311.Google Scholar
34 Id. at 347, 354.Google Scholar
35 See Perry, , supra note 29; Hart, supra note 27, at 91 (opining that “all our criticisms of the prediction theory of obligation may be best summarized as” the criticism that they “define … out of existence” “the internal aspect of obligatory rules”).Google Scholar
36 See Perry, , supra note 29. See also Hart, supra note 27, at 91, 243–44.Google Scholar
37 See Krygier, , supra note 16; Lacey, supra note 5; Frederick Schauer, (Re)Taking Hart, 119 Harv. L. Rev. 852 (2006) (reviewing Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004)); Schofield, supra note 16.Google Scholar
38 See, e.g., Berman, Harold J., The Origins of Western Legal Science, 90 Harv. L. Rev. 894 (1977); Lewis, , supra note 16; David Sugarman, Legal Theory, the Common Law Mind and the Making of the Textbook Tradition, in Legal Theory and Common Law 26 (William Twining ed., 1986).Google Scholar
39 See, e.g., Abbott, Andrew, The System of Professions: An Essay on the Division of Expert Labor (1988) [hereinafter Abbott, System of Professions]; Andrew Abbott, Chaos of Disciplines (2001) [hereinafter Abbott, Chaos]; Tony Becher, Academic Tribes and Territories: Intellectual Enquiry and the Cultures of Disciplines (1989); Collins, Harry & Evans, Robert, Rethinking Expertise (2007); Collins, Randall, The Sociology of Philosophies: A Global Theory of Intellectual Change (1989).Google Scholar
40 See Bradbury, Malcolm, What Was Post-Modernism? The Arts in and after the Cold War, 71 Int'l Affairs 763, 767–74 (1995) (discussing Irving Howe's initial use of the prefix in 1959 and its subsequent shifts in meaning in different contexts and periods).Google Scholar
41 See MacCormick, , Institutions, supra note 1, at v (explaining abandonment of “positivist” label as a result of debates over the issue).Google Scholar
42 See, e.g., Twining, , supra note 13, at 123–25 (suggesting that John Austin's work initiated this narrowing of the issues addressed by legal theory); R. George Wright, Does Positivism Matter?, in The Autonomy of Law, supra note 4, at 57, 57, 68 (arguing that legal positivist positions are trivial).Google Scholar
43 Many legal theorists have taken this position, but prior to MacCormick they described themselves, and would most likely have been described as, anti-positivist rather than post-positivist. See, e.g., William E. Conklin, The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition 3, 68, 304 (2002); Fueßer, supra note 8, at 119, 120; George, supra note 12, at 321, 330; Tamanaha, supra note 15, at 35–36.Google Scholar
44 See, e.g., Greenawalt, , supra note 2, at 19 (noting that “the label ‘legal positivism’ may be mainly a matter of rhetorical force, now usually negative”); Sebok, supra note 2, at 2 (noting that the “positivist” term has “in recent years … become a pejorative in modern American legal circles”); Schauer, supra note 2, at 32–35 (discussing pejorative uses of “positivist” label).Google Scholar
45 Cf. Becher, , supra note 39, at 70.Google Scholar
46 MacCormick's use of the label may also be related to terminological bleeding from one specialty to another. The term “post-positivist” is not uncommon in work on international law and international relations, another field in which MacCormick wrote. See, e.g., International Theory: Positivism and Beyond (Steve Smith, Ken Booth & Marysia Zalewski eds., 1996); Biersteker, Thomas, Critical Reflections on Post-Positivism in International Relations, 33 Int'l Stud. Q. 263 (1989); Gontarek, Stan, International Legal Theory: Positivist, Naturalist, and Much More, 1 Int'l Legal Theory 5 (1995). In this subfield, the term is used not to refer to a position beyond or following legal positivism but in a manner borrowed from its meaning in the philosophy of science, where it refers to post-logical positivist theoretical positions. See, e.g., Ruth Groff, Critical Realism, Post-Positivism, and the Possibility of Knowledge (2004); Zammito, John H., A Nice Derangement of Epistemes: Post-positivism in the Study of Science from Quine to Latour (2004). Larry Laudan is known for having argued that these “post-positivist” positions share important assumptions with the positivism they claim to move beyond and are largely an extension of positivism rather than a true departure from it. See Larry Laudan, Beyond Positivism And Relativism: Theory, Method, And Evidence (1996).Google Scholar
47 For example, he maintains that “law and morality are conceptually distinct.” MacCormick, Institutions, supra note 1, at 261, 264.Google Scholar
48 MacCormick, , Institutions, supra note 1, at 278–79. See also MacCormick, Hart, supra note 1, at 16, 167; MacCormick & Weinberger, supra note 3, at 7.Google Scholar
49 See, e.g., MacCormick, , Institutions, supra note 1, at 25–30 (discussing various aspects of theoretical debates over rules, norms, exclusionary reasons, discretion, and standards); id. at 56–57 (offering critique of received understanding of Hart's Rule of Recognition concept); id. at 62–73 (clarifying distinction between rules and habits); id. at 161–65 (discussing validity and defeasibility of legal norms).Google Scholar
50 MacCormick, , Institutions, supra note 1, at 264. See also id. at 4 (writing that he believes that “some minimum of justice is essential” to legal validity). MacCormick also points to his incorporation of positions associated with legal theorists identified as natural law theorists as well as legal positivists. Id. at 279. But as has often been discussed, many legal positivists have moderated their position to accommodate criticisms offered by natural law theorists or non-positivists, without relinquishing their commitment to the positions described above in Section B.I.2. See, e.g., Robin Bradley Kar, Hart's Response to Exclusive Legal Positivism, 95 Geo. L.J. 393 (2007).Google Scholar
51 MacCormick, , Institutions, supra note 1, at 278.Google Scholar
52 See Huib M. De Jong & Werner, Wouter G., Continuity and Change in Legal Positivism, 17 L. & Phil. 233, 240, 249 (1998). To be sure, there are some ways in which MacCormick moves beyond the concerns of prior legal positivists, as outlined above. He suggests, for example, that law might not be reducible to discourse. See MacCormick, Institutions, supra note 1, at 62–73. He also suggests that judgments regarding the legal validity of norms occur on a continuum rather than being binary judgments. Id. at 161–65, 257–58. And as noted below, he draws on a wider range of theoretical material than the traditional legal positivist does. See infra note 56 and accompanying text.Google Scholar
53 MacCormick, , Institutions, supra note 1, at 1, 60.Google Scholar
54 Id. at 255. See also Neil MacCormick, The Concept of Law and The Concept of Law, in The Autonomy of Law, supra note 4, at 163, 164–71. MacCormick uses the term “discursive” in a narrower sense than I do, to refer to a disputational setting rather than to practices of verbal articulation.Google Scholar
55 MacCormick, , Institutions, supra note 1, at 24, 177–78, 184, 289, 302–03. MacCormick claims that his theory is not “derived from” or “entailed by” Luhmann's systems theory, but that the two are “strikingly mutually compatible.” Id. at 302.Google Scholar
56 MacCormick, , Institutions, supra note 1, at 65, 154, 292–93.Google Scholar
57 MacCormick comes close to acknowledging this when he acknowledges that scholarship can only ever hope to provide a partial account of its subject matter. MacCormick, Institutions, supra note 1, at 301–02 (asserting that scholarship cannot claim “to have found some ‘Archimedean’ point outside, perhaps ‘above,’ the practical activity from which it looks down on the activity and sees that it represents nothing real. Rather, as Luhmann points out, it involves a kind of self-observation of the legal system from within it, but an observation that is not aimed directly at the solution of particular current practical problems arising within it”).Google Scholar
58 See, e.g., Lacey, , supra note 5, at 950–57; Perry, supra note 29, at 97 (“As a discipline jurisprudence claims … to be both a branch of practical philosophy … and a social science of a certain kind.”). But see Roger Cotterrell, Why Must Legal Ideas Be Interpreted Sociologically?, 25 J.L. & Soc'y 171 (1998). MacCormick's incorporation of Luhmannian systems theory into his account of law can be viewed as a logical extension of this tradition. See MacCormick, Institutions, supra note 55 and accompanying text.Google Scholar
59 See, e.g., Krygier, , supra note 16, at 164, 167 (noting how different disciplinary commitments of analytical theorists and social scientists studying law lead them to identify different characteristics of legal systems); Lacey, supra note 5, at 950–57 (providing critique of H.L.A. Hart's respect for and disciplinary allegiance to analytic philosophy); Lewis, supra note 16, at 65, 70–71 (presenting descriptive account of parallel histories of valorization of autonomy in legal practice and legal theory); Schauer, supra note 37, at 858–69 (discussing disciplinary commitments and dimensions of twentieth-century positivism in the wake of Hart); Twining, supra note 13, at 129–30 (describing history of particularizing conclusions of post-Bentham legal theorists, and parallels between particularization in legal practice and in jurisprudence). Some work, to be sure, has rejected the thesis that the legal domain involves the kind of partiality or suspension identified by legal positivism, while acknowledging that legal theory is necessarily partial, and draws from these premises the conclusion that legal positivism in one or more of its varieties is intellectually incoherent. But this work argues that the positivist description of law is inaccurate; it does not seek to refute the idea that legal positivism is an inevitable form of legal theory in the world we inhabit. See, e.g., Goldsworthy, supra note 12, at 451–52 (arguing that the only plausible legal position from the “internal point of view” is a natural law position); Perry, supra note 13, at 347 (arguing that methodological positivism is inconsistent with the normativity of its descriptive object, law); Postema, supra note 8, at 165–66 (arguing that history of legal philosophy is a history of attempts to reconcile irreconcilable theses regarding legal normativity and social existence of legal institutions); Waldron, supra note 9, at 426, 432–33 (discussing “asymmetry” between legal theory as grasped by actors within the legal system from the internal point of view and as grasped by academic theorists).Google Scholar
60 Fiss, , supra note 13, at 1008.Google Scholar
61 See, e.g., Perry, , supra note 13, at 312–14 (discussing Hart's mixture of methodological and substantive positivism); Waldron, supra note 9, at 432–33.Google Scholar
62 Fiss, , supra note 13, at 1016.Google Scholar
63 See, e.g., sources cited supra note 39; Sugarman, supra note 38; Christopher Tomlins, Framing the Field of Law's Disciplinary Encounters: A Historical Narrative, 34 L. & Soc'y Rev. 911 (2000).Google Scholar
64 See supra note 29 and accompanying text.Google Scholar
65 See Becher, , supra note 39, at 32–44; Collins & Evans, supra note 39, at 14, 24; Catherine Kemp, The Uses of Abstraction: Remarks on the Interdisciplinary Efforts in Law and Philosophy, 74 Denver U. L. Rev. 877, 879–85 (1997); Ong, Walter J., Ramus, Method, and the Decay of Dialogue: From the Art of Dialogue to the Art of Reason 306 (2nd ed., 2004).Google Scholar
66 See Abbott, Chaos, supra note 39, at 130–31, 137–38, 140–42; Collins & Evans, supra note 39, at 45–76; Collins, supra note 39, at 25–36.Google Scholar
67 Abbott, Chaos, supra note 39, at 141; Collins & Evans, supra note 39, at 9.Google Scholar
68 See Abbott, Chaos, supra note 39, at 130, 140, 147–49; Collins & Evans, supra note 39, at 7, 24–27, 30–31, 39, 86; Collins, supra note 39, at 25–36.Google Scholar
69 Abbott, Chaos, supra note 39, at 137 (noting that “[k]knowledge experts compete with one another through redefinition of each other's work”); Collins, supra note 39, at 31, 71, 80.Google Scholar
70 Abbott, Chaos, supra note 39, at 11–13, 138, 148.Google Scholar
71 See, e.g., Collins, , supra note 39, at 31, 76, 80–81; Hans-Johann Glock, What Is Analytic Philosophy? 245–46 (2008).Google Scholar
72 Cownie, Fiona, Legal Academics: Cultures and Identities 134, 198 (2004); Sugarman, , supra note 38, at 26, 29, 34; Tomlins, supra note 63, at 926–64.Google Scholar
73 Abbott, Chaos, supra note 39, at 140–42, 148; Becher, supra note 39, at 70.Google Scholar
74 See, e.g., Abbott, Chaos, supra note 39, at 145–47; Abbott, System of Professions, supra note 39, at 52–57, 79– 85, 102–104, 110–11, 118–21 (discussing phenomenon of “professional regression” into high-status positions of pure reflection on abstract knowledge linked with professional group); Becher, supra note 39, at 57; Cownie, supra note 72, at 198.Google Scholar
75 Cownie, , supra note 72, at 128–29; Elizabeth Mertz, The Language of Law School: Learning to “Think Like a Lawyer” 12–30, 207–23 (2007).Google Scholar
76 Lewis, , supra note 16, at 66.Google Scholar
77 Id. Google Scholar
78 Hart, , supra note 27, at 94.Google Scholar
79 See Balkin, J.M., The Crystalline Structure of Legal Thought, 39 Rutgers L. Rev. 1 (1986). Using a different vocabulary, Niklas Luhmann has explored this phenomenon extensively. See, e.g., Niklas Luhmann, A Sociological Theory of Law 41–48, 73–83 (1972).Google Scholar
80 Harris, Angela P. & Schultz, Marjorie M., “A(nother) Critique of Pure Reason”: Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773, 1777 n.14 (1993) (noting prestige of appellate judges compared to trial judges in America, and of certain substantive fields of law involving more secondary-rule content and valuing “rationality” over “emotion”); Deborah Jones Merritt, Who Teaches Constitutional Law?, 11 Const. Comment. 145 (1994) (concluding that constitutional law is high-prestige specialty among American legal academics).Google Scholar
81 Collins, & Evans, , supra note 39, at 35–39.Google Scholar
82 Collins, & Evans, , supra note 39, at 38. See also Douglas W. Vick, Interdisciplinarity and the Discipline of Law, 31 J.L. & Soc'y 163, 189–90 (2004) (noting that most interdisciplinary legal scholarship is theoretical rather than empirical, probably because of structural and conceptual similarities between theory and doctrinal work).Google Scholar
83 Abbott, Chaos, supra note 39, at 53–55.Google Scholar
84 Cf. The discussion of Hart's argument for the necessity of adopting an internal point of view in Perry, supra note 29, at 97, 99–100.Google Scholar
85 Thus, theory mirrors practice not because “to study metaphors, one must do so metaphorically,” the assumption criticized by Michael Moore in Interpreting Interpretation, in Law and Interpretation, supra note 29, at 1, 26, but because, in fact, law does have these features (along with others), and academic theorizing also does, in fact, have these features (along with others).Google Scholar
86 My position is not inconsistent with Gerald Postema's argument that jurisprudence is an inherently practical inquiry, since his sense of “practical”—having to do with normativity and with reasons for action—overlaps with my sense of “theoretical,” which refers only to the abstract accounting for or explaining of a subject matter, regardless of whether the account or explanation is normative or descriptive. Postema, supra note 12.Google Scholar
87 Although some accounts of legal positivism trace its origins to pre-modern Europe, see, for example, Conklin, supra note 43, at 14–32 (discussing Greek distinction between nomos and physis as analogous to positive law-natural law dichotomy), most accounts of legal positivism identify Thomas Hobbes as the first modern legal positivist. See, e.g., Bix, supra note 13, at 18; Dyzenhaus, supra note 8, at 708; 58–60; Gardner, supra note 13, 204–05; Waldron, supra note 13, at 171.Google Scholar
88 See Shapin, Steven & Schaffer, Simon, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life 100–02 (1985); Fuller, Steve, Disciplinary Boundaries and the Rhetoric of the Social Sciences, 12 Poetics Today 301, 320 (1991).Google Scholar
89 See Harte, Negley & North, John, The World of UCL 1828–2004 (2004).Google Scholar
90 Twining, , supra note 13, at 123.Google Scholar
91 On Hart, see Lacey, supra note 37, at 112–208. See also Schauer, supra note 11, at 1951–53 (classing Austin with Bentham and Kelsen as being concerned primarily with the “demarcation of law from its neighbors”).Google Scholar
92 See Collins, , supra note 39, at 31.Google Scholar
93 See Abbott, Chaos, supra note 39, at 147; Collins & Evans, supra note 39, at 70–76.Google Scholar
94 See Conklin, , supra note 43, at 73, 81–91, 98–88.Google Scholar
95 Bentham, Jeremy, Of Laws in General 1 (1782). Indeed, Bentham has been described as “anticipat[ing] various trends in twentieth-century philosophy of language (including Frege's and Wittgenstein's ‘context principle', some views of logical positivists, and the development of speech act theory).” See Timothy Endicott, Law and Language, Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/law-language/.Google Scholar
96 Austin, John, The Uses of the Study of Jurisprudence 365, 367 (1863).Google Scholar
97 Hart, , supra note 27, at 82–94.Google Scholar
98 Raz, , On the Nature, supra note 29, at 99.Google Scholar
99 See Conklin, , supra note 43, at 96.Google Scholar
100 Id. at 82–86.Google Scholar
101 In the Fragment on Government, for example, Bentham stresses the need to acknowledge higher-order norms or reasons when he criticizes Blackstone for excessive focus on the law-making power of the government (“the right of Government to make Laws”) to the neglect of the rules governing and restricting that power (“the duty of the Government to make Laws” and “the British Constitution”). See Jeremy Bentham, A Fragment on Government 6–7 (1776); id. at 53–55 (discussing sovereign's subjection to law). See also Schofield, supra note 16, at 59–60; Twining, supra note 13, at 121.Google Scholar
102 Hart, , supra note 27, at 18–25, 91–99.Google Scholar
103 Austin, John, The Province of Jurisprudence Determined 257–58 (1863) (discussing constitutional “principles or maxims which the sovereign habitually observes,” which it “is bound or constrained to observe,” and which are known to those who might apply (nonlegal) sanctions to the sovereign in the event of its failure to observe these principles).Google Scholar
104 Conklin, , supra note 43, at 143–44.Google Scholar
105 See Hart, , supra note 2, at 614–15, 620.Google Scholar
106 Hart, , supra note 27, at 79.Google Scholar
107 See, e.g., Raz, , supra note 25, at 35–48, 141–48, 170–77.Google Scholar
108 See, e.g., MacCormick, , Institutions, supra note 1, at 292–93 (discussing law, following Karl Popper's terminology, as a “World III” “thought-object”). See also Raz, Between, supra note 29, at 265, 269.Google Scholar
109 Bix, , supra note 13, at 29.Google Scholar
110 Thus, John Finnis self-identifies and is identified by others as critical of legal positivism, yet he embraces a perspective on the nature of law similar in many ways to that described above. See Finnis, supra note 22. See also Bix, supra note 9, at 1613, 1624.Google Scholar
111 See, e.g., Coleman, , supra note 10, at 145–46; Soper, supra note 12, at 507–08, 512. Compare Dyzenhaus, supra note 8, at 712, 716 (noting that a “Dworkinian” judge would not be a legal positivist) with Leiter, supra note 15, at 27 (noting that Dworkin might be considered an applied positivist seeking to describe adjudicative process), Perry, supra note 13, at 317 (noting that Dworkin might be classed as a methodological positivist).Google Scholar
112 I am not the first to make this observation, but I hope in this section to suggest some implications that have not been noted before. For previous characterizations of particular adjudicators and judicial rhetoric as examples of legal positivism in practice, see, for example, G. Todd Butler, A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 Holy Cross J.L. & Pub. Pol'y 47, 48, 59 (2008) (concluding that Scalia is a positivist because his opinions betray his adherence to the social-facts thesis and the separation thesis, identified by Butler as the “two fundamental tenets” “share[d]” by “all legal positivists”); Beau James Brock, Mr. Justice Antonin Scalia: A Renaissance of Positivism and Predictability in Constitutional Adjudication, 51 La. L. Rev. 623 (1991); Allen, Anita J., Autonomy's Magic Wand: Abortion and Constitutional Interpretation, 72 B.U. L. Rev. 683, 693–94 (1992) (describing both Justice Scalia and Justice Thomas as positivists); George Kannar, The Constitutional Catechism of Antonin Scalia, 99 Yale L.J. 1297, 1307, 1310, 1308, 1339 (1990) (referring to Scalia as positivist).Google Scholar
113 See, e.g., Wetlaufer, Gerald B., Rhetoric and its Denial in Legal Discourse, 76 Va. L. Rev. 1545, 1555 (1990).Google Scholar
114 Brock, , supra note 112, at 632.Google Scholar
115 See sources cited supra note 112.Google Scholar
116 See Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law 25 (1997); Scalia, Antonin, Morality, Pragmatism, and the Legal Order, 9 Harv. J.L. & Pub. Pol'y 123, 125 (1986) (“I have never been able to isolate obligations of justice, except by defining them as those obligations that the law imposes.”). Similarly, Justice Scalia's dictum that “[t]here are times when even a bad rule is better than no rule at all” can be taken as an articulation of the separability thesis. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989) [hereinafter Scalia, The Rule of Law].Google Scholar
117 See Zlotnick, David M., Jusice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 Emory L.J. 1377, 1427–28 (1999) (arguing that Justice Scalia is more accurately characterized as a politician than as a judge); Stephen A. Newman, Political Advocacy on the Supreme Court: The Damaging Rhetoric of Antonin Scalia, 51 N. Y. L. Sch. L. Rev. 907 (2006).Google Scholar
118 E.g., Carden v. Arkoma Assocs., 494 U.S. 185, 196 (1990) (“The resolutions we have reached … can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations … but … that has been the character of our jurisprudence in this field.”).Google Scholar
119 E.g., Penry v. Lynaugh, 492 U.S. 302, 359 (1989) (Scalia, J., concurring in part and dissenting in part) (“It is an unguided, emotional ‘moral response’ [in juries] that the [majority opinion] demands be allowed—an outpouring of personal reaction …, an unfocused sympathy. Not only have we never before said the Constitution requires this, but [in prior decisions we have] sought to eliminate precisely the unpredictability it produces.”). Commentators have noted that this disavowal is belied by Justice Scalia's use of colorful language to characterize views with which he disagrees. See generally Newman, supra note 117.Google Scholar
120 In line with H.L.A. Hart, Justice Scalia has argued that the exclusion of certain considerations from the domain of legitimate legal reasons advances certainty and predictability. Compare Scalia, The Rule of Law, supra note 116, with Hart, supra note 27, at 42, 252 (arguing that a benefit of a rule of recognition is its enhancement of certainty and predictability).Google Scholar
121 Because we can only detect the occupation of a legal positivist position through statements like those made by Justice Scalia, the difference between occupying the institutional position associated with the generation of legal positivist discourse and the use of positivist rhetoric by one functioning within another institution may not be all that significant. Cf. Collins & Evans, supra note 39, at 86.Google Scholar
122 Dworkin, Ronald, Law's Empire 90 (1986) (“Jurisprudence is the general part of adjudication, silent prologue to every decision at law.”).Google Scholar
123 Collins, & Evans, , supra note 39, at 14.Google Scholar
124 Id. at 15.Google Scholar
125 Id. at 70–76.Google Scholar
126 Id. at 52–54, 60–63.Google Scholar
127 As Collins and Evans argue, “distance lends enchantment,” that is, “the more distant one is from the locus of the creation of knowledge in space and time the more certain will the knowledge appear to be.” Id. at 20.Google Scholar
128 See generally Kannar, , supra note 112; Zlotnick, supra note 117. See also Matthew Kramer's argument that legal officials often act for prudential rather than moral reasons, Kramer, supra note 4, at 64–77, and Jamal Greene's argument, not limited to Justice Scalia, about the reasons for the use of originalist rhetoric in judicial and popular discourse, Jamal Greene, Selling Originalism, 97 Geo. L.J. 657 (2009).Google Scholar
129 See supra notes 116 & 117.Google Scholar
130 For an overview of work taking this type of approach, see Mark Hall & Ron Wright, Systematic Content Analysis of Judicial Opinions, 96 Cal. L. Rev. 63 (2006).Google Scholar
131 This is similar to, but not quite the same as, the question of the descriptive accuracy of the positivist account of law. See, e.g., Bix, supra note 13, at 21 (noting that debate between Dworkin and Raz should be ultimately empirically resolvable); Benjamin C. Zipursky, The Model of Social Facts, in The Autonomy of Law, supra note 4, at 219, 243.Google Scholar
132 See, e.g., Brudney, James G. & Ditslear, Corey, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1 (2005); Cross, Frank B., The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007); Czarnezki, Jason J. & Ford, William K., The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841 (2006); Gates, John B. & Phelps, Glenn A., Intentionalism in Constitutional Opinions, 49:2 Pol. Research Q. 245 (June 1996); Howard, Robert M. & Segal, Jeffrey A., An Original Look at Originalism, 36 Law & Soc'y Rev. 113 (2002); Schacter, Jane S., The Confounding Common Law Originalism in Recent Supreme Court Statutory Intepretation: Implications for the Legislative History Debate and Beyond, 51 Stan. L. Rev. 1 (1998); Zeppos, Nicholas S., The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992).Google Scholar
133 Compare the assumptions of Dennis Patterson, Law and Truth (2000), with Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).Google Scholar
134 See, e.g., Moore, , supra note 15, at 321–24; Philip Roberts, Observations on Method in Legal Theory and Linguistics, in Positivism Today, supra note 4, at 77, 81–92.Google Scholar
135 Cf. Brian Leiter's call for a “naturalized jurisprudence” in Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 266 (1997).Google Scholar
136 See, e.g., Caldeira, Gregory A., Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 Am. Pol. Sci. Rev. 1209 (1986); Caldeira, Gregory A. & Gibson, James L., The Etiology of Public Support for the Supreme Court, 35 Am. J. Pol. Sci. 635 (1992); Casey, Gregory, Popular Perceptions of Supreme Court Rulings, 4 Am. Politics Q. 3 (1976); Durr, Robert H., Andrew D. Martin, & Christina Wohlbrecht, Ideological Divergence and Public Support for the Supreme Court, 44 Am. J. Pol. Sci. 768 (2000); Hoekstra, Valerie J., The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89 (2000); Jaros, Dean & Roper, Robert, The U.S. Supreme Court: Myth, Diffuse Support, Specific Support, and Legitimacy, 23 Am. Politics Q. 85 (1980); Johnson, Timothy R. & Martin, Andrew D., The Public's Conditional Response to Supreme Court Decisions, 92 Am. Pol. Sci. Rev. 299 (1998); Kessel, John, Public Perceptions of the Supreme Court, 10 Midwest J. Pol. Sci. 167 (1966); John M. Scheb II & Lyons, William, Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors that Influence Supreme Court Decisions, 23 Pol. Behavior 181 (2001).Google Scholar
137 See, e.g., Joseph, Raz, The Authority of Law: Essays on Law and Morality (1983).Google Scholar
138 See, e.g., Strauss, David A., On the Origin of Rules (with Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules, 75 U. Chi. L. Rev. 997, 998–99, 1002 (2008); Zlotnick, , supra note 117, at 1382– 87.Google Scholar
139 This is a broader articulation of the point underlying Hart's practice conception of the rule of recognition. The issue is explored from different perspectives in, for example, Adler, supra note 10; Lewis, supra note 16; Andrei Marmor, Legal Conventionalism, in Hart's Postscript, supra note 4, at 193, 209–10.Google Scholar
140 See, e.g., Becher, , supra note 39, at 38, 44; Glock, supra note 71, at 205, 223–24; Kemp, supra note 65 (noting that the evaluation of interdisciplinary work is hampered by use of the same terms in different disciplines in different senses, incomprehensible to non-specialists).Google Scholar
141 See supra notes 116, 138 and accompanying text.Google Scholar
142 See Green, Leslie, The Concept of Law Revisited, 94 Mich. L. Rev. 1687, 1698–700 (1995) (review of Hart, supra note 27) (noting that Hart did not exalt secondary rules or formal legal systems as a better form of law, but only described them as functionally necessary to sustain certain forms of social life); Green, supra note 19, at 1056–58 (noting that Hart described law as, by nature, prone to decay and vice, chiefly the vice of the alienation of law from its subjects); Waldron, supra note 13, at 175, 179, 181 (noting that Hart's account of law implied that the emergence of a legal system allows the more efficient perpetuation of injustice, and that the development and elaboration of secondary rules tends to make the population increasingly less familiar with primary rules). In The Concept of Law, Hart acknowledged that the general public usually does not have access to or subscribe to the rule of recognition. Hart, supra note 27, at 59–60, 110–11.Google Scholar
143 Cf. Lewis, , supra note 16, at 66. See also supra notes 69–73, 127–128 and accompanying text.Google Scholar
144 See, e.g., MacCormick, , supra note 13; Liam Murphy, The Political Question of The Concept of Law, in Hart's Postscript, supra note 4, at 371; Perry, supra note 13; Waldron, supra note 9.Google Scholar
145 See, e.g., Abbott, System of Professions, supra note 39, at 52–57, 79–84; Cownie, supra note 72, at 58–69; Deborah Jones Merritt, Research and Teaching on Law Faculties: An Empirical Exploration, 73 Chi.-Kent L. Rev. 765 (1998).Google Scholar
- 6
- Cited by