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The Radicalism of Legal Positivism


Brian Leiter


University of Chicago


Guild Practitioner, 2010
U of Chicago, Public Law Working Paper No. 303

Abstract:     
“Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that "positivism" is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.

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Date posted: March 12, 2010  

Suggested Citation

Leiter, Brian, The Radicalism of Legal Positivism. Guild Practitioner, 2010; U of Chicago, Public Law Working Paper No. 303. Available at SSRN: http://ssrn.com/abstract=1568333

Contact Information

Brian Leiter (Contact Author)
University of Chicago ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
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