The Construction of Legal Positivism and the Myth of Legal Indeterminacy
23 Pages Posted: 22 Jan 2010 Last revised: 2 Jan 2011
Date Written: January 13, 2010
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
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