Were the Legal Realists Legal Positivists?

51 Pages Posted: 18 Apr 2007

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Abstract

In a series of articles Brian Leiter has advanced the thesis that legal positivists were hard legal positivists. He argues that they argued, along the lines W.V. Quine would argue some years later, for reorienting jurisprudence towards non-normative inquiry, and that the only legal theory consistent with this approach is legal positivism. In this essay I challenge Leiter's arguments. I first argue that nothing in the legal realists' work could be seen as taking a stand in the debate between soft and hard positivism. I then argue that Leiter's arguments could be interpreted in several ways, and that none easily fits existing versions of legal positivism.

Keywords: legal positivism, legal realism, leiter, hard positivism, jurisprudence, adjudication

Suggested Citation

Priel, Dan, Were the Legal Realists Legal Positivists?. Law and Philosophy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=980705

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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