Varieties of Post-Positivism

Abstract:     
Exploring different perspectives on what it might mean to develop a post-positivist theory of law, this paper compares the recent work of Neil MacCormick and Bruno Latour, who have both been called “post-positivist,” although for different reasons. MacCormick developed his postpositivism within a specific tradition of theoretical writing on law, while Latour’s post-positivist account of law extends his earlier work challenging broadly positivist assumptions about the nature of scientific activity. Despite their differences, MacCormick and Latour share a concern with transcending the distinction between internal and external points of view on the nature of law, as well as a perhaps more surprising commitment to a specific variety of legal positivism — what Norberto Bobbio called “ideological positivism.” This paper maps out the previously recognized varieties of legal positivism, explains their relationship to other intellectual traditions often given the “positivist” label, and discusses the contours and limitations of MacCormick’s and Latour’s respective attempts to surpass positivist theories of law.

Number of Pages in PDF File: 22

Keywords: legal positivism, post-positivism, Neil MacCormick, Bruno Latour, internal point of view

working papers series