Normative Legal Positivism (Prologue)
Cambridge Companion to Legal Positivism (Patricia Mindus & Torben Spaak, eds., Forthcoming 2020)
28 Pages Posted: 26 Feb 2019
Date Written: January 20, 2019
Legal positivism these days is considered a descriptive position, but it has not always been so, and is not always so now. Even apart from Ronald Dworkin, Stephen Perry, and others who have sought to locate the normative commitments in allegedly descriptive legal positivism, two explicitly normative versions of legal positivism constitute part of the positivist picture. One dating from Jeremy Bentham but still discussed and promoted, seeks to prescribe what judges and other legal decision-makers ought to do, and, more specifically, maintains that judges ought to restrict their sources of decision-making guidance to rule-of-recognition recognized positive law. And the other, based on one (and probably the better) understanding of H.LA. Hart’s 1958 position in his debate with Lon Fuller, and repeated in the 1961 version of The Concept of Law (although arguably changed in the 1994 “Postscript”), argues that legal cultures ought, for moral and political reasons, adopt a positivist understanding of the nature of law. Both of these versions of legal positivism are explicitly normative, and both are part of the full picture of the past and present of legal positivism.
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