The Construction of Legal Positivism and the Myth of Legal Indeterminacy

23 Pages Posted: 22 Jan 2010 Last revised: 2 Jan 2011

See all articles by Frederic R. Kellogg

Frederic R. Kellogg

Universidade Federal de Pernambuco (UFPE); George Washington University

Date Written: January 13, 2010

Abstract

This paper compares the pragmatist view of law as boundaryless and endogenous with the competing view – generally known as "legal positivism" – which sees law as separate, exogenous and autonomous. Both models are reflected in the methodology of American law; yet the two are at odds. They imply a deep inconsistency in our corporate belief in what law is, giving rise to radically different approaches to legal interpretation. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of "legal indeterminacy".

This revision includes a postscript on the pragmatist theory of legal interpretation.

Keywords: legal positivism, legal pragmatism, legal interpretation, legal indeterminacy, Dewey, Holmes, Peirce, Hart, Lyons, Leiter, Solum

Suggested Citation

Kellogg, Frederic R., The Construction of Legal Positivism and the Myth of Legal Indeterminacy (January 13, 2010). Available at SSRN: https://ssrn.com/abstract=1536124 or http://dx.doi.org/10.2139/ssrn.1536124

Frederic R. Kellogg (Contact Author)

Universidade Federal de Pernambuco (UFPE)

Cidade Universitária
Cidade Universitária, Pernambuco 50670-901
Brazil

George Washington University

2121 I Street NW
Washington, DC 20052
United States

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