A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary

56 Pages Posted: 9 Jan 2024 Last revised: 10 Apr 2024

See all articles by Richard M. Re

Richard M. Re

University of Virginia School of Law

Date Written: January 8, 2024

Abstract

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Keywords: Jurisprudence, constitutional law, court reform

Suggested Citation

Re, Richard M., A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary (January 8, 2024). Virginia Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2024-02, Available at SSRN: https://ssrn.com/abstract=4687303

Richard M. Re (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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